done during his term, therefore he is deemed in law to have surrendered his his term to the lessor. (Ib. 305, 306.) As to surrenders by operation of law, see further 2 Smith L. C. 759 et seq, 6th ed. (j) The word "release" appears to be inserted by mistake instead of "lease." 8 & 9 Vict. c. 106, s. 3. OPERATION OF CERTAIN INSTRUMENTS LIMITED. nor exchanges operate by wrong, nant. 4. A feoffment, made after the said first day of October, one Feoffments not to thousand eight hundred and forty-five, shall not have any tortious operation (k); and that an exchange or a partition of any tenements or hereditaments, made by deed, executed after the said first day of October, one thousand eight hundred and forty-five, shall not imply any condition in law; and that the word "give" or the word "grant," in a deed executed after the same day, shall not imply any covenant in law, in respect of any tenements or hereditaments (1), except so far as the word "give" or the word "grant" may, by force of any act of parliament, imply a covenant (m). (k) A feoffment had the effect of barring or destroying contingent re- Tortious operation mainders depending upon particular estates. (Archer's case, 1 Rep. 66 b.) of feoffment. A feoffment also destroyed powers appendant and powers in gross, but not powers collateral. A feoffment was the only conveyance by which a tenant for years, by elegit, statute merchant or staple or a copyholder, could create an estate of freehold by disseisin. (Co. Litt. 49; 2 Sand. on Uses, 14, 15.) In consequence of the new enactment, a feoffment in fee simple, made by a tenant for life, will merely convey his life interest, and will not be a cause of forfeiture; and a feoffment by a lunatic or idiot will be void and not merely voidable, as formerly. (See Shelford on Law of Lunatics, 335, 336, 2nd edit.) (1) As to the conditions implied on exchanges and partitions, see 4 Cruise, Covenant imDig. tit. XXXII. c. 6, 20. The operation of the words "grant" and "give" plied by words in creating an implied warranty of title in conveyances of estates in fee "grant," "give," simple, in gifts in tail, in leases for life, and in leases for years, is fully discussed by Mr. Butler in his note to Co. Litt. 384 a. (See 4 Cruise, Dig. tit. XXXII. c. 24; and see 1 Davidson, Conv. 70, 103, 3rd ed.) An action of covenant will lie by the lessee against the lessor upon the word "demise" in a lease, that word importing a covenant in law on the "demise." The plaintiff in ejectment on a demise of the 12th of October, 1850, Covenant to claimed under the following deed:-"In consideration of the love and stand seised. affection which I have towards my son W. S. (the lessor of the plaintiff), 8 & 9 Vict. c. 106, s. 4. I have given and granted, and by these presents do give and grant, to the said W. S. all that," &c., "and that the said W. S. is to take possession of the same at Michaelmas-day next (1850). I have delivered him, the said W. S., all the premises absolutely at Michaelmas-day next, without further condition." It was held, that supposing such a deed to be void as a grant of the freehold in future, still, the day named having passed, the plaintiff was entitled to recover, the deed amounting to a covenant to stand seised to the use of W. S. (Doe d. Starling v. Prince, 15 Jur. 632; 20 L. J., C. P. 223.) The provision in this section, that "The word 'give' or the word 'grant,' in a deed shall not imply a covenant in law," was held inapplicable to the case. (Ib.) Exception as to (m) In the conveyance of lands to be made by the promoters of the unacts of parliament. dertaking under the Lands Clauses Consolidation Act, or the special act, the word "grant" implies certain covenants by them for title, except so far as the same shall be limited by express words contained in any such conveyance. (8 & 9 Vict. c. 18, s. 132.) The words "grant, bargain and sell" operate as covenants for title in deeds of bargain and sale of lands lying in the East and North Ridings of Yorkshire by stat. 6 Ann. c. 35, s. 30; 8 Geo. 2, c. 6, s. 35. Strangers may take immediately STRANGERS To Deeds. 5. Under an indenture, executed after the first day of October, one thousand eight hundred and forty-five, an immediate estate or interest in any tenements or hereditaments, and the an indenture shall benefit of a condition or covenant, respecting any tenements or under an indenture, and a deed purporting to be take effect as such. Contingent and other like in hereditaments, may be taken, although the taker thereof be not named a party to the same indenture; also, that a deed, executed after the first said day of October, one thousand eight hundred and forty-five, purporting to be an indenture, shall have the effect of an indenture, although not actually indented (n). (n) It was necessary to name as parties to an indenture all persons who are intended to take an immediate estate or benefit by it. (Co. Litt. 231 a.) This rule did not extend to remainders, (Co. Litt. 231 a, 259 b,) nor, it was said, to uses or the benefit of a trust. (2 Prest. Conv. 394.) A practical distinction between an indenture and a deed poll is, that no person can take an immediate estate or benefit under an indenture, unless he be named as a party to it; but any person can take an immediate estate or benefit under a deed poll, inasmuch as it is addressed to all the world. (Co. Litt. 26 a, 231; Burton's Real Prop. 442, n.; 2 Prest. Conv. 394 et seq.; 1 Martin's Conv. 324.) Another practical distinction between a deed poll and an indenture is, that a covenant entered into by a deed poll with any covenantee named in the deed is valid; but a covenant in an indenture entered into with a person not a party cannot be sued on by that person. (Greene v. Hoare, Salk. 197; Berkley v. Hardy, 5 B. & C. 353; Lord Southampton v. Browne, 6 B. & C. 718.) But a person not a party to a deed may covenant with one who is, and will be bound by executing the deed. (Salter v. Kidgly, Carth. 76; 2 Prest. Conv. 415.) ALIENATION of Contingent Interests. 6. After the first day of October, one thousand eight hundred terests, also rights and forty-five, a contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or of entry, made alienable by deed, 8 & 9 Vict. c. 106, s. 6. saving estates in tail; and as rewomen enjoining conformity to gards married 3 & 4 Will. 4, c. 74. hereditaments (o) of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry (p), whether immediate or future, and whether vested or contingent, into or upon any tenements or hereditaments in England, of any tenure, may be disposed of by deed; but that no such disposition shall, by force only of this act, defeat or enlarge an estate tail, and that every such disposition by a married woman shall be made conformably to the provisions, relative to dispositions by married women, of an act passed in the third and fourth years of the reign of his late Majesty King William the Fourth, intituled "An Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance" (q), or, in Ireland, of an act passed in the fourth and fifth years of the reign of his said late Majesty, intituled "An Act for the Abolition of Fines and 4 & 5 Will. 4, Recoveries, and for the Substitution of more simple Modes of c.92. Assurance, in Ireland." (0) The alienation of interests of this description under the law as it existed previously to the abolition of fines and recoveries, has been already considered. (See ante, pp. 325-327.) As to alienation of supposed rights, see 32 Hen. 8, c. 9; Doe d. Williams v. Evans, 1 C. B. 717, and the cases there cited. (p) It was said by Maule, J., "that this does not mean a right of entry for a forfeiture, but the right of entry in the nature of an estate or interest, that is, where a person by lapse of time has lost everything except his right of entry." (Hunt v. Remnant, 9 Exch. 640.) Pollock, C. B., said, “This section does not relate to a right to repossess or re-enter for a condition broken, but only to an original right where there has been a disseisin, or where the party has a right to recover lands, and his right of entry, and nothing but that, remains." (Hunt v. Bishop, 8 Exch. 680.) (a) See ante, pp. 368-399. DISCLAIMER BY MARRIED WOMEN. 7. After the first day of October, one thousand eight hundred and forty-five, an estate or interest in any tenements or hereditaments in England, of any tenure, may be disclaimed by a married woman by deed; and that every such disclaimer shall be made conformably to the said provisions of the said Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance (r). (r) See ante, p. 371. Capacity of mar ried women tates or interests by deed extended to England. CONTINGENT REMAINDERS. 8. A contingent remainder, existing at any time after the thirty-first day of December, one thousand eight hundred and forty-four, shall be, and, if created before the passing of this act, shall be deemed to have been, capable of taking effect, notwithstanding the determination, by forfeiture, surrender or 8 & 9 Vict. c. 106, s. 8. Destruction of contingent remainders. merger, of any preceding estate of freehold, in the same manner, in all respects, as if such determination had not happened (s). (8) This section of the act does not alter the rules of law as to the creation of contingent remainders. (See 2 Bl. Comm. 164, 170; Watk. on Conv. tit. Remainder.) In consequence of the rule that a remainder must vest in the grantee during the existence of the particular estate, or the very instant it determines, contingent remainders might be defeated, by destroying or determining the particular estate on which they depend, before the contingency happens whereby they become vested. (1 Real Prop. Rep. 66, 135.) Therefore, when there was tenant for life, with divers remainders in contingency, he might not only by his death, but by alienation, surrender, or other methods, destroy and determine his own life estate before any of those remainders vest; the consequence of which was, that he utterly defeated them all. As, if there were tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son was born, surrendered his life estate, he by that means defeated the remainder in tail to his son: for his son not being in esse when the particular estate determined, the remainder could not then vest; and, as it could not vest then by the rules of law it never could vest at all. In these cases, therefore, it was necessary to have trustees appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines. If, therefore, his estate for life determines otherwise than by his death, the estate of the trustees, for the residue of his natural life, will then take effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency. (2 Black. Com. 171.) The above clause will supersede the necessity of a limitation of estates to sedes necessity of trustees during the life of the tenant for life, to support the contingent remainders expectant upon the determination of the life estate by forfeiture, surrender or merger. Section super trustees to pre serve contingent remainders. Contingent remainders in copy holds. See Egerton v. Massey, 3 C. B., N. S. 338; 3 Jur., N. S. 1325; 27 L. J., C. P. 10, as to the destruction of a contingent remainder by merger. The act only applies to the three cases of forfeiture, surrender or merger. If at the time when the particular estate would naturally have expired, the contingent remainder be not ready to come into immediate possession, it will still fail as before. (Williams's Real Prop. 261, 7th ed.) Contingent remainders of copyholds were never liable to destruction by the sudden determination of the particular estate on which they depend. But there is no distinction between freeholds and copyholds in those cases where the particular estate expires naturally and regularly before the happening of the contingency. (Scriven on Copyholds, 281, 5th ed.) Quasi contingent remainders in copyholds were protected from destruction by the estate of the lord of the manor. (Pickersgill v. Grey, 30 Beav. 352.) When the reversion on a lease is gone the next es the reversion. REVERSION Expectant on Lease. 9. When the reversion expectant on a lease, made either before or after the passing of this act, of any tenements or heretate to be deemed ditament, of any tenure, shall, after the said first day of October, one thousand eight hundred and forty-five, be surrendered or merge, the estate which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion, as, but for the surrender or merger thereof, would have subsisted, be deemed the reversion expectant on the same lease (†). (t) This section of the act is retrospective in its operation. (Upton v. Townend, 17 C. B. 542.) It sometimes happened, where the immediate reversion on a lease is a term, or other particular estate, that it becomes merged in some other estate in the same land; and, where that is the case, not only the benefit of the covenants, but the rent and all remedies for it, are lost. (3 Real Prop. R. 49.) The object of this section is to prevent such consequence, and to preserve covenants of, and remedies against a lessee, and the obligations on the lessor which are incident to the immediate reversion. (Webb v. Russell, 3 T. R. 678; Wootley v. Gregory, 2 Yo. & J. 536; Burton v. Barclay, 7 Bing. 745; Thorne v. Woolcombe, 3 B. & Ad. 586; 2 Platt on Leases, 393-399.) 10. This act shall not extend to Scotland. 8 & 9 Vict. c. 106, s. 9. Act not to extend to Scotland. S. T T |