As the possession of tenant in common is undivided till partition, they cannot exchange with each other, though they may exchange either separately or together with a stranger. But as the seisin of each is distinct, and their estates several, one may enfeoff the other; or if the other have a greater estate, surrender to him. So, one may devise his part to the other, but one cannot release to his companion as such. Tenants in common may transfer their respective shares to strangers by the usual modes of conveying freehold property, and they may compel a partition among themselves.* To this estate there is no right of survivorship, but tenancies in common descend to the heirs of each of the tenants, because they have several freeholds, and not an entirety of interest like joint tenants.† The possession and seisin of one tenant in common, was formerly held to be the posses * Watk., c. xii. 1 Inst., 200, a. sion and seisin of the other, because such possession was not adverse to the right of his companion, but in support of their common title; and although one tenant took the whole of the profits, yet this did not divest the possession of his companion.* But now by recent statute,† it is enacted that the possession of one tenant in common shall not be deemed the possession of the other. * 1 Inst., 199, b. + 3 & 4 Wm. IV., e. 27, s. 12. CHAPTER VIII. OF THE MODES OF CONVEYING OR CHARGING PROPERTY BY ACT OR DEED OF THE OWNER. Object of deeds-Their origin-Definition ofIndented-Poll-7 & 8 Vict., c. 76-Eight chief requisites to a deed-The seven usual parts of a deed-1. Agreement-2. Feoffment3. Grant-4. Gift-5. Lease-6. Exchange7. Release-8. Confirmation-9. Surrender10. Assignment-11. Bond-12. Defeazance— 13. Recognizance-14. Covenant to stand seised -15. Bargain and sale-16. Lease and Release -17. Fine-18. Recovery*-19. Devise or Will. To provide a form for every occasion in which conveyances or assurances may be required, cannot be expected in an elementary work like the present. Still, the forms of some of those deeds, usually of most importance, and to which most others, though not in name, may yet in effect and operation be re * These now abolished by 3 & 4 W. IV., c. 74. MODES OF CONVEYING PROPERTY, &c. 127 duced, will be given* for the information and guidance of the student; and such observations are here offered, as may serve to make the subject more plain and intelligible. The object of deeds seems to be to reduce matters to a certainty. The vagueness of oral testimony would appear to have led mankind at an early period to avail themselves of written or documentary evidence, to prove contracts, covenants, or agreements entered into by them. In strict propriety of language, the paper, writing, or deed, signed by parties, is not so much the agreement, as evidence of the agreement. Thus, for example, when A and B have agreed, the one to sell, and the other to purchase an estate, upon certain terms, there is an agreement, and its being reduced to writing is only to make the matter certain. Prior to the statute of frauds, agreements need not have been reduced to writing; but because it was found that this license gave room to a great deal of fraud, and that parties * See post Appendix, Forms. by combining, might often seek to set up by oral testimony an agreement never entered into; and because also, where agreements had been entered into, the terms were so frequently misunderstood by the contracting parties, it was enacted by that statute,* for the prevention of many fraudulent practices which are commonly endeavoured to be upheld by perjury and subornation of perjury, that, All leases, estates, interests of freeholds, &c., made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereto lawfully authorized by writing, shall have the form and effect of leases or estates at will only. s. 2 excepts leases not exceeding three years; and wherein the rent reserved shall be two-thirds of the full improved value of the thing demised. s. 4 provides, that with exception of leases to be performed within a year, no action shall be brought upon any agreement, * 29 Car. II., c. 3. |