CHAP. XL. SAME SUBJECT. OF RELEASES. (A) RELEASES are in divers manners, viz. releases of all LITTLETON. the right which a man hath in lands or tenements (1), and releases of actions personal and real, and other things. Here our author beginneth with a division of releases. These words must be referred thus: releases are of two sorts, viz. a release of all the right which a man hath either (1) &c. added in L. and M. (A) The several species of primary or original conveyances having been explained in the preceding chapters, we now come to consider the secondary or derivative sort; which pre-suppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. Among this last sort are classed releases; which are defined to be, a discharge or conveyance of a man's right in lands or tenements, to another who has possession, or some estate therein. 2 Bl. Com. 324. 5 Bac. Abr. 680. tit. Release. By the common law, where a man had the actual possession and right of property in lands, he could only convey them by feoffment, with livery of seisin; but, as it frequently happened, that the actual possession was in one person, and the right of possession or right of property in another; in case the person who had the right of possession or right of property was willing to convey those rights to the person who had the actual possession, it was done by a discharge of his right to the person in possession; which species of conveyance acquired the name of a release. A feoffment would, in such a case, have been useless, because it could not transfer the possession, as the person was in possession already. A release is, therefore, a conveyance of a right, to a person in possession. Thus, where a man was disseised, the disseisor acquired the possession, and the right of possession and property remained in the disseisee. Ante, p. 154. n. (A). p. 155. n. (C). Now, if the disseisee agreed to transfer his rights to the disseisor, the proper mode of carrying such an agreement into execution was, by a release; for the disseisor being already in possession, it would have been useless to have made him a feofliment. Gilb. Ten. 53. 4 Cru. Dig. 143, 144. Releases of land, in respect to their operation, are divided into four sorts, 1st. Releases that enure by way of passing a right, or mitter le droit; 2d. Releases that enure by extinguishment; 3d. Releases that entre by enlargement; and 4th. Releases that enure by way of passing an estate, or mitter l'estate. The doctrine as to releases in general, and that which particularly relates to releases of land, will be stated in the present chapter: releases of actions real, personal, and mixt, will be considered in a subsequent part of this work.-[Ed.] [Sect. 444. 264 a.] The different kinds of releases. 264 a. Vid. Mirror, cap. 2. sect. 17. Vid. Britt. 101. Bract. lib. 5. Tract. de Except, & lib. 4. fol. $18 b. Fleta, lib. 3. cap. 14, *264b. Vid. sect. 492. in lands and tenements, or in goods and chattels; or there is a release of actions real, of or in lands or tenements; or personal, of or in goods or chattels; or mixt, *partly in the realty, and partly in the personalty. Release," Relaxatio. Of the etymology of this word (a) Fleta, ubi supra. you have heard before. Fleta (a) calleth it charta de quietă clamantiâ. LITTLETON. RELEASES of all the right which men have in lands [Sect.444. 264 b.] and tenements, &c. are commonly made in this form, or of LITTLETON. Release in deed; by what words created. this effect: KNOW all men by these presents, that I, A. of B., have [Sect. 445. 264 b.] remised, released, and altogether from me and my heirs quiet claimed: or thus, for me and my heirs quiet claimed to C. of D. all the right, title, and claim which I have, or by any means may have, of and in one messuage with the appurtenances in F., &c. And it is to be understood, that these words, remisisse, et quietum clamâsse, are of the same effect as these words, relaxâsse. 264 b. Bract. lib. 4. fol. 308. Fleta, ubi supra. "Know all men by these presents, &c." Here Littleton sheweth precedents of releases of right: and precedents do both teach and illustrate, and therefore our student is to be well stored with precedents of all kinds. “Remisisse, relaxûsse, et quietum clamásse." Here Little9 H. 6. 35. 24 E. 3. ton sheweth, that there be three proper words of release, and be much of one effect: besides, there is renunciare, ac 27. 13 H. 4. Entr. Congeab. 57. (2 Rol. Abr. 400. 403. quietare, and there be many other words of release; as if the 9 Rep. 52.) lessor grants to the lessee for life, that he shall be discharged of the rent, this is a good release. Vid. Sect. 532 (B). 265 a. (10 Rep. 47.) "All the right, title, and claim (totum jus, titulum, et clameum)." But note, that jus, or right, in general significa (B) Littleton bereafter observes, that a release of all demands is the best and strongest release; and Lord Coke adds, that the word “ demand" is the strongest word in the law, except the word "claim ;" and that a release of all demands discharges all sorts of actions, rights, and titles, conditions, before and after breach, executions, appeals, rents of all kinds, covenants, contracts, recognizances, statutes, &c. Post, sect. 508.291 b. ~[Ed.} tion includeth not only a right for the which a writ of right doth lie, but also any title or claim, either by force of a condition, mortmain, or the like, for the which no action is given by law, but only an entry. And it is to be understood, that there be releases in deed, or express releases, whereof Littleton here hath shewed an example. These express releases must of necessity be by deed. There be also releases in law, and they are sometime by deed, and sometime without deed. As if the lord disseise the tenant, and maketh a feoffment in fee by deed or without deed, this is a release of the seignory. And so it is, if the disseisee disseise the heir of the disseisor, and make a feoffment in fee by deed or without deed, this is a release in law of the right. And the same law it is of a right in action. Release in law. 27 H. 8. 29. of an Use. 34 H. 6. 44. of an Attaint. 3 E. 3. 38. 21 E. 4. 81. Pl. Com. Delamere's case. (8 Rep. 136. Plo. 185, 186. Hob. 10. 1 Sid. 79. 1 Rol Abr. 934. Plo. 36. 5 Rep. 29.) If the obligor make the obligee his executor, this is a re- 8 E. 4. 3. 21 E. 4. 2. lease in law of the action, but the duty remains, for the which the executor may retain so much goods of the testator (c). (C) If a debtor appoints his creditor to the executorship, he is allowed to retain his debt, in preference to all other creditors of an equal degree. This remedy arises from the mere operation of law, on the ground, that it were absurd and incongruous that he should sue himself, or that the same hand should at once pay and receive the same debt. And, therefore, he may appropriate a sufficient part of the assets, in satisfaction of his own demand; otherwise he would be exposed to the greatest hardship; for, since the creditor who first commences a suit is entitled to a preference in payment, and the executor can commence no suit, he must, in case of an insolvent estate, necessarily lose his debt, unless he has the right of retaining. Thus from the legal principle of the priority of such creditor as first commences an action, the doctrine of retainer is a natural deduction; but the privilege is accompanied with this limitation, that he shall not retain his own debt as against those of a higher degree; for the law places him merely in the same situation as if he had sued himself as executor, and recovered his debt, which there could be no room to suppose, during the existence of those of superior order. Toll. Law. Ex. 295, 296. Et vid. 2 Bl. Com. 511. 3 Bl. Com. 18, 19. Off. Ex. 32, 142, 143. Com. Dig. Admon. C. 2. 5 Bac. Abr. 686. Rol. Abr. 922, 923. Plowd. 185. 543. 11 Vin. Abr. 72. 261. Winch. 19. 3 Burr. 1380. 1384. But though an executor may retain both at law and in equity for his own debt, as against other creditors of the same degree, 11 Vin. Abr. 265. n. 1 P. Wms. 295. Georges v. Georges, 18 Ves. 296; yet equity will restrain him from perverting this privilege to the purpose of fraud. Toll. Law. Ex. 298. Off. Ex. 33. But, if there are not assets, the action is not so much as suspended, and the executor may sue the heir, where the heir is bound. Rol. Abr. 940. Salk. 304. So if a creditor be appointed executor with others, he may sue them, especially if he has not administered. Cro. Car. 372. Jon. 345. Off. Ex. 33. And the bare appointment of a creditor to be executor, if he refuse to act, will not extinguish his legal remedy for the recovery of his debt. Rawlinson v. Shawe, 3 T. R. 557. On the other hand, if a creditor appoints the debtor his executor, such appointment shall operate as a release and extinguishment of the debt; on the principle that a debt is merely a right to recover the amount by way of action, and as an executor cannot maintain an action against 11 H. 7. 4. 20 H. 7. 29. 8 E. 4. 3. If the feme obligee take the obligor to husband, this is a release in law. The like law is, if there be two femes obligees, and the one take the debtor to husband (D). himself, his appointment by the creditor to that office discharges the action, and consequently discharges the debt. Tell. Law. Ex. 347, 348. Et vid. 5 Bac. Abr. 686. 2 Bl. Com. 511, 512. Off. Ex. 31. Salk.. 299. Plowd. 186. Com. Dig. Admon. B. 5. Rol. Abr. 920, 921. 5 Co. 30. Thus, if the obligee of a bond make the obligor executor, this amounts to a release at law of the debt. 8 Co. 136. If several obligors be bound jointly and severally, and the obligce constitute one of them his executor, it is an extinguishment of the debt, and the executor is incapable of suing the other obligors. Off. Ex. 31. 11 Vin. Abr. 398. So where the obligee in a joint and several bond made one of two obligors his executor, with others, and the obligor executor administered; it was held, that the action was discharged as to all the obligors. Cheetham v. Ward, 1 Bos. & P. 630. The debt is also released where only one of several executors is indebted to the testator, for one executor cannot maintain an action against another, Off. Ex. 31; and after the death of such executor, the surviving executors cannot sue his representative for the debt. Id. 32. Plowd. 264. Leon. 320. Nor is the case varied by the executor's dying without having proved the will, or having administered (Salk. 300. Plowd. 184. Off. Ex. 31.), or even by his refusal to act with his co-executors (Salk. 308.), unless he formally renounced the office in the spiritual court. Salk. 907. In all these cases the legal remedy is destroyed by the act of the party, and therefore is for ever gone, Cro. Car. 373. Salk. 302; but the effect is different where it is suspended merely by the act of law, Salk. 303; as if administration of the effects of a creditor be committed to the debtor (Off. Ex. 32. 8 Co. 136. Sid. 79.), or if the executrix of an obligee marry the obligor (1 eon. 320. Moor. 236. Salk. 306. Infra, 264 b.), this is only a temporary privation of the remedy by the legal operation of the grant or marriage. Toil. Law. Ex. 318, 349. But where the testator has not left a fund sufficient for the payment of his own debts, in that case the debt of his executor shall be assets; the duty remaining, although the action at law be gone; and the executor shall be liable to account for such debt in the spiritual court, or in a court of equity. Ibid. Such discharge, however, shall in general be preferred to legacies. For the debt is considered in the light of a specific bequest, or legacy to the debtor, for the purpose of discharging the debt; and therefore, though like all other legacies, it shall not be paid, or retained till the debts are satisfied, yet the executor has a right to it exclusive of the other legatees. Id. 350. 2 Bl. Com. 312. But such debt shall not be relcased even as against legatees, if the presumption arising from the appointment of a debtor to the executorship be contradicted by the express terms of the will, or by strong inference from its contents. As where a testator leaves a legacy, and directs it to be paid out of a debt due to him from the excenter; such debt shall be assets to pay not merely that specific legacy, but all other legacies. 5 Bac. Abr. 687. Toll. Law. Ex. 350. In like manner, if he leave the execntor a legacy, it is held to be a sufficient indication, that he did not mean to release the debt. And, in such case, the executor shall be trustee to the amount of the debt for the residuary legatec, or next of kin. Carey v. Goodinge, 3 Bro. C. C. 110. Ca. Temp. Talb. 240. 4 Bro. P. C. 180. 5 Bac. Abr. 687. It seems, also, that the naming of a debtor executor, durante minoritate, is no discharge of the debt; since he is only executor in trust for the infant, till he comes of age. 11 Vin. Abr. 400. Ld. Raym. 605.-[Ed.] (D) All contracts between the husband and the wife for debts due in præsenti, or in futuro, or upon a contingency, which may become dne during the coverture, are by the marriage released and extinct, because the husband and wife make but one person in law; and it seems that an express agreement to the contrary would be void, as being inconsistent with the state of matrimony. 8 Co. 136. Dyer, 140. But promises, covenants, and agreements for the performance of a thing which is not to happen during the coverture, as payment of money after the husband's decease, are not released by the marriage. Smith and Ux. v. Stafford, Hob. 216. And in the case of Gage v. Acton, it was adjudged by two judges against Holt, C. J., that where A. entered into a bond to his in If an infant of the age of seventeen years release a debt, this is void; but if an infant make the debtor his executor, this is a good release in law of the action (2). But if a feme executrix take the debtor to husband, this is no release in law, for that should be a wrong to the dead, and in law work a devastavit, which an act in law shall never work. And so it was adjudged in the king's bench, Mich. 30 & 31 Eliz. in which case I was of counsel. But it is to be observed, that there is a diversity between a release in deed, and a release in law; for if the heir of the disseisor make a lease for life, and the disseisee release his right to the lessee for his life, his right is gone for ever. But if the disseisee doth disseise the heir of the disseisor, and make a lease for life, by this release in law the right is released but during the life of the lessee; for a release in law shall be expounded more favourable, according to the intent and meaning of the parties, than a release in deed, which is the act of the party, and *shall be taken most strongly against himself (E); and so in the case aforesaid, where the debtor is made executor. (2) If the obligor make the obligee his executor, the obligee may retain; but that is not applicable to the case put here. Therefore he may make an executor at 17; tamen supra 89 b. (ante, vol. 1. p. 169.) it is said that it is at 18. It should seem that the case here is understood of 17 complete, et supra 89. of 18 beginning; and thus the passages agree. D'Avila His. tended wife, conditioned to leave her at his death 10007. if she survived him, such bond was not released by the marriage, as nothing would be due during the coverture, and as it would be contrary to the express agreement of the parties. But Lord C. J. Holt insisted strenuously, that a bond differed from a promise or covenant, being debitum in præsenti, though solvendum in future; and that the rule of law could not be controled by the intention of the parties. Salk. 325. Ld. Raym. 515. Carth, 511. 12 Mod. 288. So, where a man entered into a bend to his intended wife, conditioned to leave her 10007. and the husband mortgaged his estate and died, not leaving personal assets to discharge the bond; it was decreed, that admitting the bond void at law, yet it ought to be made good in equity, and that she was entitled to redeem and to hold the land till she was satisfied her debt. 2 Vern. 290. 480. Et vid. Cannel v. Buckle, 2 P. Wms. 243. And it is now settled, that such a bond may be enforced at law against the heirs of the husband. Milbourne v. Ewart, 5 T, R. S81. Hayes, d. Foord v. Foord, there cited.-[Ed.] (E) Formerly releases were construed with much nicety and great strictness, and being considered as the deed or grant of the party, were, according to the rule of law, taken most strongly against the releasor, |