that use into a legal estate, an actual conveyance was requisite; but now the statute of uses supplies that conveyance, and transfers the seisin of the vendor to the use of the vendee, who having thus the seisin and the use, becomes seised of the legal estate, without any further conveyance. Immediately after the statute of uses came the statute of enrolments, 27 Hen. 8. c. 16., which requires every bargain and sale of a freehold interest to be enrolled in Chancery within six months after its date; consequently, if the common agreement for purchase were enrolled on a sufficient stamp, it would operate as a valid conveyance by way of bargain and sale without any further legal instrument. [This last proposition, it is submitted, is at least questionable: the statute 27 Hen. 8. c. 16., requires that an instrument to operate as a bargain and sale must be indented and sealed.] From these I observations, it is plain, that a use cannot be surmounted on the use thus executed by the statute in the bargainee, for that would be a use upon a use, and therefore a mere trust.

In a late case, a tenant in tail, in order to make a tenant to the præcipe for suffering a recovery, by indentnre duly enrolled, bargained and sold the lands of which he was seised in tail to two persons to the use of one of them, and that one was made the tenant to the præcipe, upon which a recovery was suffered. An objection was afterwards taken to the recovery, on the ground that the tenant [was not solely seised of the entirety, the bargain and sale conveying the use or legal estate to the two bargainees, as joint-tenants in fee, and that the second use to the tenant to the præcipe was inoperative, so that he had the legal estate of one moiety only when the recovery was suffered.] This objection was considered fatal, but there being an outstanding term, the Court of King's Bench certified, that the bargain and sale (though enrolled) operated as a good grant of the reversion, and passed the freehold of the entirety to the tenant to the præcipe; and that, consequently, the recovery was valid and effectual. Haggerston v. Hanbury, 5 Barn. & Cress. 101.

The enrolment of a bargain and sale must be made within six lunar months from the day of the date, if the deed have a date, and if not, within six lunar months from the time of its delivery. Hob. 140. 2 Inst. 673. Shep. Touch. 223. It may be made either upon the day of the date (2 Inst. 674.), or upon the last day of the six months, reckoning the day of the date exclusively. Thomas v. Popham, Dy. 218 b. The legal estate is vested in the bargainee by the statute of uses upon the execution of the deed; but the statute of enrolment obstructs the operation of the conveyance until it is enrolled. The enrolment, however, has, for most purposes, a relation to the delivery of the deed (2 Inst. 875.), and thereby avoids all mesne incumbrances and conveyances made by the bargainor between the delivery and enrolment. Mullery v. Jennings, 2 Inst. 674. Thomas v. Popham, Dyer, 218. Owen, 70.

A bargain and sale is an innocent assurance, and passes merely what the grantor may lawfully convey. It cannot, therefore, work a discontinuance (Gilb. Uses, 297. Co. Litt. 332 b.), or create a forfeiture. Gilb. Uses, 102. Hard. 416. If, however, a tenant in tail conveys in fee by bargain and sale, the bargainee has a base fee, determinable on the death of the tenant in tail by the entry of his issue. Seymor's case, 10 Co. 95. Machil v. Clark, 2 Salk. 619. 1 Atk. 2. Whether a tenant in tail afterwards could have levied a fine to bar the issue is a point which is noticed in the chapter on Fines.

From the general characteristics of a bargain and sale, as explained in this chapter, it is manifest, that such an instrument cannot contain a power of appointment generally. To support a bargain and sale, a money consideration must pass between the bargainor and bargainee; and to the perfection of this instrument, the consideration must be paid at the time the deed is executed, otherwise no use will arise, and then nothing passes from the bargainor, and so the deed is completely nugatory at the time it is executed. Now between the bargainee and an appointee under a power there

cannot pass a present consideration, and consequently no use can arise; and as the seisin and the use are not separated, the statute cannot operate, consequently nothing is drawn out of the bargainor, neither the use by the deed, nor the seisin by the statute. The deed and the statute therefore operate nothing, and the whole is futile and void. Et vide Gilb. Uses, 46.

CHAP. XIII.

OF A LEASE AND RELEASE.*

We have already remarked, that a release can only be made to a person in the possession or

[* This is another of those conveyances which is said to operate by transmutation of possession or seisin. The bargain and sale for a year gives a use, to which the statute annexes the possession, for a year; and then, if the release be made to the bargainee or lessee for a year, to uses, he thereby takes a momentary interest, called the seisin, to serve the uses limited; and which are at one and the same instant executed in the cestui que use. If there are no uses, the release being made to the bargainee or lessee for a year in fee, the statute is not brought into operation upon the release; but the releasee takes by the common law, by way of enlargement of estate. The student will mark the distinction between the legal possession of the freehold which gives the freeholder the right to take the rents and profits which is called his seisin, and that seisin, above alluded to, which derives its peculiar cha racter from the statute of uses: the latter confers a momentary interest in the feoffees, releasees, or grantees, merely to conduct the use in its transit through them to the cestui que use, in whom the use is executed instanter by the operation of the statute the uses thus executed confer the legal estate, either in possession, remainder, or contingency, according to the limitations. Nothing remains in the feoffees, &c.; though,

seisin of the lands; and, therefore, if a conveyance of the freehold is intended to be made to a stranger, without the formalities of livery, an estate for a year, or other definite time, may be made to him in order to give him such possession or seisin, and so make him capable of receiving a release. This may be done by a conveyance at common law, or under the statute of

uses.

If an estate for a year be granted at common law, the lessee should make an actual entry into the lands before the release be made to him; and this should always be done when a corporation is the grantor, as a corporation cannot be seised to an use. If, however, the grantor can

where the uses are in contingency, some are of opinion that a possibility of seisin remains in the feoffees, &c. to serve or supply the contingent uses as they arise. Supra, 243-244.]

* In Ireland, the actual existence of a lease for a year is not required; it is sufficient if the release contains the usual reference to it. By the 9th Geo. 2. c. 5. s. 6. (Irish stat.) it is enacted, that in all cases the recital of a lease for a year in the deed of release shall be deemed and taken to be full and sufficient evidence of such lease. In a late case, the words" in his (the releasee's) actual possession, now being by virtue of a lease made pursuant to the statute," were held an insufficient recital of the lease within this statute. The lands, however, being in lease, the release was held to operate as a grant of the reversion, from the words "demise, set, and to 'farm let," notwithstanding there was a covenant in the instrument to make a future grant. Doe v. Saunders, 1 Fox & Smith, 18.