[tradidi (k). For farm or feorme is an old Saxon word signifying provisions (l); and it came to be used instead of rent or render, because antiently the greater part of rents were reserved in provisions-in corn, in poultry, and the like, till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme; though at present, by a gradual departure from the original sense, the word farm is brought to signify the very land so held upon farm or rent. Neither the words "to farm let," however, nor any of the others above specified, are necessary to effect a demise; any expressions sufficiently indicating the intention of one of the parties to divest himself of the possession, for a determinate period, in favour of the other, being clearly sufficient to constitute a lease (m).] With reference to the covenants contained in a lease, we may here observe, that it results from what has been before stated, as to such as run with the land, that the lessee is liable not only to the original landlord or reversioner, but, in case of the grant of the reversion, then to the grantee also, for the future performance of all such covenants contained in the lease, on the part of the lessee; and is entitled, on the other hand, to enforce against the grantee, as well as the original landlord, the future performance of all such as are contained in the lease, on the part of the lessor. In order to improve the landlord's security, the lease usually contains also a proviso that, on breach of any of the covenants by the tenant, the landlord shall be at liberty to re-enter, and to resume possession of the premises as if no lease had been made; and this proviso constitutes, in case of a breach of covenant by the tenant, a most advantageous addition (c) Co. Litt. 45 b. (1) Spelm. Gloss. 229. (This derivation is exceedingly doubtful. -E. J.) (m) Co. Litt. 45 b. See Baynes & Co. v. Lloyd & Sons, [1895] 1 Q. B. 820. to the landlord's remedies, which would otherwise be confined to a right of action for damages on the covenant. But landlords now pursue their remedies under this proviso, subject to (and first complying with) the provisions in this behalf contained in the Conveyancing Act, 1881, hereinafter more particularly dealt with. IV. [The fourth mode of Conveyance by the Common Law is the Exchange. An Exchange is a mutual grant of equal interests, the one in consideration of the other. The word "Exchange" is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word or expressed by any circumlocution (n). The estates exchanged must be equal in quantity, not of value (for that is immaterial), but of interest-as fee simple for fee simple, a lease for years for a lease for years, and the like (o). And no livery of seisin, even in exchanges of freehold, was, at the common law, necessary to perfect the conveyance (p); for each party stood in the place of the other, and occupied his right, and each of them had already had corporal possession of his own land.] But by the Statute of Frauds, ss. 1, 3, an exchange was required to be in writing; and, by the Real Property Act, 1845 (8 & 9 Vict. c. 106), 3, it must now be by deed, in every case except that of an exchange of copyhold. [Moreover, by the common law, entry must have been made on both sides; for if either party died before entry, the exchange was void for want of sufficient notoriety (q). And so where two parsons, by consent of patron and ordinary, exchanged their preferments, and the one was presented, instituted, and inducted, and the other was presented and instituted, but died before induction; the former was not entitled to keep his new benefice, because (n) Co. Litt. 50, 51; Eton College v. Bishop of Winchester, (1774) 3 Wils. 468. S. (0) Litt. ss. 64, 65; Perk. sect. 275; Shep. Touch. 296. (p) Litt. s. 62. (2) Co. Litt. 50 b. [the exchange was not completed, and therefore he returned back to his own (r). And, if after an exchange of lands or other hereditaments, either party was evicted of those which were taken by him in exchange, through defect of the other's title, the party evicted had formerly a right to return back to the possession of his own, by virtue of the implied warranty contained in all exchanges.] Now, by the Real Property Act, 1845 (8 & 9 Vict. c. 106), s. 4, an exchange of any tenements or hereditaments. made by deed executed after the 1st October, 1845, does not imply any condition in law. The conveyance by exchange at the common law is now obsolete; and in lieu thereof the parties execute mutual conveyances of their respective lands, the one to the other. What is above laid down, as to exchanges, has no application to such mutual conveyances (s); nor, of course, would it apply to exchanges effected under the provisions of Inclosure Acts (t). V. [The fifth mode of Conveyance by the Common Law is a Partition. A partition is where two or more jointtenants, coparceners, or tenants in common, agree to divide the lands and each to hold a distinct part in severalty (u). Here, as in some instances, there is a unity of interest, and in all a unity of possession, it is necessary that they shall all mutually convey and assure to each other the several estates, which they are to take and enjoy separately. By the common law, coparceners might make voluntary partition by parol only; though joint-tenants and tenants in common could not make it otherwise than by deed (x). But, under the Statute of Frauds (29 Car. II. c. 3), an instrument in writing, signed (r) Perk. S. 288; Downes v. Craig, (1842) 9 M. & W. 166. (8) Eton College v. Bishop of Winchester, (1774) 3 Wils. 491. (t) 8 & 9 Vict. c. 118, ss. 92, 147; 9 & 10 Vict. c. 70; 10 & 11 Vict. c. 111; 11 & 12 Vict. c. 99; [by the party or his agent, was made necessary in every case of partition by way of agreement (y);] and, by the Real Property Act, 1845 (8 & 9 Vict. c. 106), s. 3, partitions of all hereditaments (not being copyhold) made after the 1st October, 1845, will be void at law, unless made by deed. [The five conveyances which have now been considered are deemed of a primary character. The six which remain are deemed of a secondary or derivative character, serving only to enlarge, or to confirm or restore, or to transfer or defeat, some interest which has been already created.] These six are (1) the Release; (2) the Confirmation; (3) the Surrender; (4) the Assignment; (5) the Defeasance; and (6) the Lease and Release. VI. A Release is either the conveyance of an ulterior interest in lands or tenements to a particular tenant, or is the conveyance of an undivided share therein to the cotenant, (the relessee being in either case in privity of estate with the relessor,)-or it is the conveyance of the right to lands or tenements to a person wrongfully in possession thereof (z). And every release was effected without livery of seisin, even though the interest conveyed were freehold; for though the freehold in possession could not pass at common law without livery, yet where another person was already in the possession, a release to him by mere deed was always considered good (a). The proper operative word to be employed is "release." A deed is in all such cases required (b); but, as regards a release of right, that may be implied by law from circumstances, and when so implied, it may of course take place without a deed (c). (y) Co. Litt. by Harg. 169 a, n. (4). (z) Co. Litt. 264 a; Reeves, Hist. Eng. Law, vol. iii., p. 354. (a) Gilb. Ten. 53. There were five different ways in which a release might enure or operate, that is to say : (1.) [By way of enlarging an estate, or enlarger l'estate, which is the species of release that most frequently occurs. It consists of a conveyance of the ulterior interest of the remainderman or reversioner to the prior particular tenant; as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives the latter the estate in fee. But to the validity of such releases as these, it is necessary that the estate of the relessee should be a complete and rested one (d); for if there be lessee for years, and, before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void, because the lessee has, in such case, a mere interesse termini, and not an estate upon which a reversion can properly be expectant]; or, as is observed by Lord Coke (e), "before entry the lessee hus "but interesse termini; and therefore a release, which 66 enures by way of enlarging an estate, cannot work "without a possession, for before possession, there is no "reversion. But if a man make a lease for years, with "remainder for years, and the first lessee doth enter, a "release to him of the remainder for years is good to "enlarge his estate." And further, there must be a privity of estate between the relessor and relessee; that is, the one of their estates must be so related to the other as to make but one and the same estate at law, as in the case where the ulterior estate conveyed is a reversion or remainder mediately or immediately expectant upon the particular estate of the relessee; all which, in contemplation of law, form parts of the same estate, as being derived, at the same time, out of the same original seisin (ƒ). Thus, if A., seised in fee, make a lease for years, with (d) Co. Litt. by Butl. 270 a, n. (3). (e) Co. Litt. 270 a, 270 b. (f) 2 Prest. Conv. 324; Gilb. Ten. 70, 71; Goodright v. Forrester, (1809) 1 Taunt. 602. |