liability attaches to him even without entry (m), where assignment is by deed. And conversely, the assignee is entitled to enforce against the reversioner any covenant of the lessor, which is incident to the relation of landlord and tenant; and in case the lessor conveys his interest to another, then to enforce it, also, against the assignee of the lessor, i.e., against the grantee of the reversion (n). But if the transfer be for a single day short of the residue of the term, no liability or claim on the original covenants can arise between the transferee on the one hand, and the reversioner or the grantee of the reversion on the other hand. For it is then an under-lease and no assignment; and the alienee, not coming precisely into the place of the alienor, is in no privity with the reversioner (0). No deed or other writing was necessary, at common law, to the validity of an assignment, though, in the case of a lease for life, it could not be effected without livery of seisin but, by the Statute of Frauds, s. 4, the same provision as to the necessity of a written instrument was made, with respect to an assignment, as before mentioned in the case of a surrender. And now, by the Real Property Act, 1845, s. 3, an assignment of a chattel interest (not being copyhold) in any tenements or hereditaments, made after the 1st October, 1845, is void at law, unless made by deed. The proper operative words in an assignment are "assign, transfer, and set over"; but it may be effected by any words which are sufficient to express the intention (p). And words of purported assignment will be read as words of underletting, and vice versa, according as the transaction is in fact an under-letting or an assignment (q). (m) Williams V. Bosanquet, (1820) 1 Brod. & Bing. 248. (n) 32 Hen. 8, (1540) c. 34; Conveyancing Act, 1881, SS. 10-12. Wright v. Burroughes, (1847) 3 C. B. 685. (0) Beardman v. Wilson, (1869) L. R. 4 C. P. 57. (p) Parmenter v. Webber, (1818) 2 Moo. 656; Hartshorne v. Watson, (1838) 5 Bing. N. C. 477. (g) Beardman v. Wilson, (1869) L. R. 4 C. P. 57. X. [A Defeasance is a collateral conveyance, made at the same time with another conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated, or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffment was rendered void on repayment of the money borrowed at a certain day. And this, when executed at the same time with the original conveyance, was considered as part of it by the antient law, and, on that account only, was indulged (r); for a conveyance of the freehold, at common law, could not be defeated or recalled by a deed of defeasance executed afterwards. And if such conveyance (being a conveyance by the common law) contained a proviso that it should be lawful for the grantor by subsequent act to revoke the same, the proviso was void for repugnancy (s). But things that were merely executory, or to be completed by matter subsequent, as rents (of which no seisin could be had till the time of payment), annuities, conditions, warranties, and the like,-were always liable to be recalled by defeasances made subsequent to the time of their creation (t).] Defeasances of land are now of rare occurrence, the practice in modern times being (as in the case of mortgages) to include in the same deed both the conveyance of the land to the alienee and the conditions (if any) to which it is to be subject, and by which its effect may be defeated. XI. The common law conveyance termed a Lease and · Release (u), obtained where one, desirous to convey in fee, first made a lease to the proposed alienee-for example, for one year which demise, if perfected by actual entry, (r) Co. Litt. 236. (s) Ibid. 237 a. (u) Reeves, Hist. Eng. Law, vol. iii. p. 357; vol. iv. p. 356. conferred on him a complete leasehold estate and the lessee then became capable of receiving a release of the reversion, for he would be tenant of the particular estate on which that reversion was expectant. The next step therefore was to execute a release of the land to him and his heirs; so that by the conjoint operation of the two conveyances he became, without livery of seisin, tenant in fee in possession, the release operating by way of enlarging the estate of the lessee. This Lease and Release must be carefully distinguished from the much better known conveyance by so-called Lease and Release, operating by virtue of the Statute of Uses. Of this latter conveyance something will be said in the next chapter. CHAPTER XVIII. OF CONVEYANCES UNDER THE STATUTE OF USES. SECOND, among Conveyances by Statute Law, we will first consider those conveyances which are founded on the Statute of Uses, that statute having had a very extensive influence upon conveyancing. And there are five such conveyances, namely, (1) the Feoffment to Uses; (2) the Covenant to Stand seised to Uses; (3) the Bargain and Sale; (4) the Lease and Release; and (5) the Grant to Uses. I. A Feoffment to Uses.-This was simply the ordinary conveyance by the common law, with a limitation to uses superadded. Thus, if A. were desirous to convey to B. in fee, he might do so by enfeoffing a third person, C., (of course with livery of seisin,) to hold to him and his heirs. to the use of B. and his heirs; the effect of which was to convey the legal estate in fee simple to B. For the legal estate passed to C. by means of the livery, in like manner as it would have done before the statute; but no sooner had this taken place, than the limitation to uses began to operate, and C. thereby became seised to the use limited. The consequence of which was that, by force of the statute, the legal estate was eo instanti taken out of C. and vested in B., for the like interest as was limited in the use, that is, in fee simple. B. thus became the legal tenant as effectually as if the feoffment had been made to himself, without the intervention of a trustee. This method, however, involving as it did the necessity of making livery of seisin, was never of frequent occurrence in modern practice (x). (x) 2 Sand. Uses, p. 13. II. [A Covenant to Stand Seised to Uses.-This was a conveyance adapted to the case where a person seised of land in possession, or for a vested remainder or reversion, proposed to make provision out of his estate for his wife, child, or kinsman (y); and in its terms it consisted of a covenant by the owner, in consideration of natural love and affection, to stand seised of his estate to the use of the intended transferee. Before the Statute of Uses, this would merely have raised a Use in favour of such party, but since that statute, the legal estate was transferred to him; for, the covenantor being by the effect of his covenant seised to the use of the covenantee, the statute immediately executed that Use. But the conveyance in question was held to be ineffectual, unless the parties to it were connected by blood or marriage; for, if they were not so connected, no Use was raised in contemplation of equity by the covenant, and therefore there was no Use for the statute to take effect upon (z). On account of inconveniences arising from this doctrine, and for other reasons, this species of conveyance became by degrees wholly laid aside. III. A Bargain and Sale.-This conveyance was a kind of real contract whereby the bargainor, being seised of land, for some pecuniary consideration bargained and sold, that is, contracted to convey it to the bargainee. By the effect of the bargain and sale, the bargainor, on receiving the price, became seised to the use of the bargainee, in fee, in tail, for life, or for years (according to the nature of the limitation). This, before the statute, was the whole effect of the instrument; but afterwards the statute executed the Use, and clothed the bargainee with the commensurate legal estate. Or, as was said, the bargain first vested the Use, and then the statute vested the possession. But as it was essential to the efficacy of (y) 2 Sand. Uses, pp. 34, 94. Reeves, Hist. Eng. Law, vol. iv. p. 162. |