CHAP. IV. under the latter rule is, that where the limitation is to trustees I. RIGHTS and their heirs, in trust for them to receive and pay over the TO REAL PROPERTY. profits, the legal estate is vested and continues in them, so as to enable them effectually to perform the declared object; but that where the trust is to permit and suffer the party beneficially interested to receive for his use, then the legal estate may be executed and vested in the latter. (z) Where however the person beneficially interested is a married woman, then to prevent loss from the interference of the husband, the construction of the terms of the trust is in general in favour of the trustees retaining the legal interest. (a)

12. Covenant to stand seised to uses. (c)

The following general rules are laid down by a very eminent conveyancer concerning equitable estates :(b) 1st. The cestui que trust is the beneficial owner in equity, and has an equitable estate. 2dly. This estate gives the like power of alienation in equity as may be rightfully exercised at law by the owner of a like legal estate. 3dly. The like limitations may be made of the equitable as may be made of the legal ownership. 4thly. The limitations of trust or equitable estates receive the like construction as if they were limitations of the legal estate. 5thly. Whenever a limitation of an use would be good by the rules of law, a like limitation of the trust or equitable ownership will be valid in equity. 6thly. Any limitations which, as tending to a perpetuity, would be void if it were of an use, will be void if it be of the trust or equitable ownership. 7thly. Of equitable estates there cannot, in a technical sense, be any disseisin; and therefore, notwithstanding adverse possession, there may be transfers or dispositions by the equitable owner either by deed or will. (b)

The several deeds operating and having their principal legal efficacy under the statute, are these, 12thly, a covenant to stand seised to uses; 13thly, a bargain and sale; 14thly, a lease and release; and which, especially the latter, have long become and continue to be the principal modes of conveyance, where the grantor has a freehold interest.

12. Covenant to stand seised to uses. This is a mode of conveyance under seal, by which a person, at the time of making it, being actually seised of freehold property corporeul, cove

(s) 2 Taunt. 109; 5 East, 163; 7 T. R. 433; 8 T. R. 597. And see other cases, 2 Bla. Com. 336, note 60; 2 Sand. U. & T. 206.

(a) 7 T. R. 652.

(b) 1 Prest. Ab. 144; and see post, division VII. as to the distinctions between legal and equitable estates.

(c) See in general 2 Bla. C. 338.

nants, in consideration of blood or marriage, that he will stand
seised of the same to the use of his child, wife or kinsman, for
life, in tail, or in fee. Here the statute of uses at once executes
the estate, although the party in whose favour the deed has
been made is never actually placed in corporeal possession, (d)
and such a covenant is good, though the use be of freehold to
commence in futuro; though we have seen that such an estate
could not in general be created by a common law conveyance.(e)
Such a use can only be in favour of a relation, and if declared
to be for the use of a relation and a stranger, it will operate
exclusively in favour of the former; (ƒ) and even if there be
any limitation to trustees, in trust for a blood relation, such
uses will be void for want of the consideration of blood in the
trustees, so strictly is this rule construed, (g) and this is one
reason why this mode of conveyance is fallen into disuse. (h)
The degree of relationship is not clearly defined to which
a use may be limited, but it seems that at all events it may
be to a cousin, (i) and there seems no reason why it should
not extend to any blood relation, (j) but a use will not arise in
favour of an illegitimate child, who is considered as filius nul-
lius. (k) The usual words in a deed of this nature, are
venant to stand seised to the use, &c." but these are not
essential, for in this as well as in a bargain and sale, the instru-
ment is to be distinguished rather by the nature of the instru-
ment than by express words, so that if these express words be
introduced in a deed in favour of a stranger, it will not operate
as a covenant to stand seised, but it will, if duly inrolled within
six months as a bargain and sale, operate as the latter, although
the words bargain and sale be not introduced; (7) and on the
other hand, a deed in favour of a near relative, although in-
tended as a bargain and sale, if defective for the latter purpose,
as on account of its not stating a pecuniary consideration, may
operate as a covenant to stand seised, provided the deed state,
as it always should, the near relationship. (m) So indentures of
lease and release, the latter creating a fee tail to commence in
futuro, although void as a release, were held to be valid as a deed
of covenant to stand seised to uses; (n) and a deed which may

66

cove

(k) 2 Rol. Ab. 783; Co. Lit. 123, n. 8;

2 Sand. U. & T. 82.

(1) 7 Coke, 40, b.; 2 Lev. 10; 1 Prest.
Conv. 38.

(m) 2 Saund. 96, b., 97; 2 Wils. 22.
(n) 2 Wils. 75; 2 Keny. 239.

CHAP. IV.

I. RIGHTS

TO REAL PROPERTY.

I. RIGHTS

TO REAL

CHAP. IV. take effect as a covenant to stand seised to uses is good, although the use is to arise after the decease of the covenantor, and PROPERTY. although he do not affect thereby to dispose of the freehold in the mean time, and although the use is to arise at a period which may not happen until long after the covenantor's death, the use resulting in the mean time. (0) There are certain rules for pleading the operation of such a conveyance. (p)

13. Bargain and sale.(9)

13. A bargain and sale of real property (r) is a contract under seal for pecuniary consideration and obtains its origin thus: (s) when the bargainor, for a sum of money paid down, bargained for or contracted to convey the same to the bargainee, and did so either without any conveyance or by one which was defective for want of livery of seisin, the bargainor, under the construction of the Court of Chancery, thereby became instantly a trustee for the bargainee, and an equitable interest in land thus became transferable by a formal conveyance by this name. Then came the statute of uses, which executes the use or legal estate in possession in the bargainee, without his actually taking possession and without livery. At first, after the statute of uses, this sufficed, but in the same session the 27 Hen. 8, c. 16,(r) was passed, in order to retain some form of notoriety in the transfer of estates, requiring an inrolment within six months after the date in one of the courts at Westminster, or with the custos rotulorum of the county, or the same will be void. And this regulation is construed strictly, for although the indenture be antedated, yet the six months are to be calculated from the date. (t) The statute of inrolment requires that the bargain and sale shall be made by writing indented, sealed and inrolled, &c. but mentions those cases only "whereby any estate of inheritance or freehold shall be made." It does not, therefore, extend to a bargain and sale for a year or years, and it is under this omission that the usual bargain and sale or lease for a year, which precedes the release and forms with it the ordinary conveyance by lease and release, is effected. We have just seen when a defective bargain and sale may operate as a covenant to stand seised; (u) and on the other hand

(0) 4 Taunt. 20.

(p) How a covenant to stand seised is to be pleaded, 3 Salk. 306; 2 Ves. sen. 253; 2 Saund, 97, b.; Lutw. 1267; 3 Lev. 370; 2 Chitty on Pleading, 5 ed. 576.

(q) See in general 2 Prest. Conv. 212; 1 Saund. 251, n. 2; 2 Bla. C. 338. How to be pleaded, 2 Chitty's Pl. 6 ed. 577.

(r) The statute 27 Hen. 8, c. 16, does not extend to interests less than freehold nor to assignments of terms for years.

(s) See 2 Sand. U. & T. 42.
(t) 11 East's Rep. 429.

(u) Ante, 325, note (m); 2 Saund. 96, b., 97.

there are cases in which a tenant under a lease for a term of CHAP. IV. years may elect to treat the same as a bargain and sale. (x)

I. RIGHTS
TO REAL

From the definition which has been just given of a bargain_PROPERTY. and sale, it may be inferred that a pecuniary consideration is necessary to raise a use under this conveyance, but the amount is not now material, even the nominal consideration expressed in the ordinary bargain and sale for a year on which to ground a release being sufficient.

66

Bargain and sale," though the usual operative words, are not absolutely essential, for any other words will be sufficient, and we have seen that a covenant to stand seised, if made for pecuniary consideration, may take effect as a bargain and sale, (y) that is if it be inrolled.

So in the creation of a term, the words grant and demise will do, but it is better where the parties are desirous that the instrument should operate under the statute, as where it is to precede a release, to use the proper technical operative words "bargain and sale."

Release.

14. A conveyance by lease and release is now by far the 14. Lease and most frequent mode of transferring any freehold interest, whether absolutely or by way of mortgage, on account of its capacity to operate in various ways, and on all possible contingencies; (z) and that it supplies the place of livery of seisin, and consequently avoids the necessity for the grantor and grantee going upon the land to deliver and receive the actual possession, and that this conveyance will equally operate, although, perhaps, neither party has ever been upon or ever seen the estate; and on account of its operation being equivalent, in this respect, to a feoffment, it has been said to amount to a feoffment. (a) But the operation of a feoffment and of a lease and release is, in most other respects, very different. A feoffment may be a tortious conveyance creating a fee, even though made by the owner of a particular estate, and therefore incurring a forfeiture; but a lease and release form but an innocent conveyance, which transfers only such an interest as the party conveying actually has, and no more, and may be for this reason used by any one without forfeiting his estate. (b) The mode of effecting this conveyance (at least when the transferree is not already in possession under an actual lease)

(x) Ante, 254, note (k).

(y) Ante, 325, note (1); 7 Rep. 40. (*) See its different operation, 2 Saund. 96, b., 97; Cowp. 600; ante, 314. A re

lease may operate as a new grant, Cowp.
600; 2 Bro. P. C. 48; 9 J. B. Moore, 46.
(a) Cro. Jac. 604.

(b) Ante, 287, note (s).

I. RIGHTS

TO REAL

CHAP. IV. is to prepare a lease for a year (then usually termed a bargain and sale for a year) of the land, dated the day before the PROPERTY. intended release, and by which, when executed, the use of that term is executed, so that such lessee is supposed to be in actual possession, at least sufficiently so as to accept a release in fee or otherwise, dated on the day after, and then upon the latter day both the deeds are executed at the same instant, and the statute of uses is considered to have transferred the possession to the releasee and completely vests the estate and possession in the bargainee, to whom the legal estate has been transferred.(c) A chattel real, as a lease for years, or a remainder for years after a term, may be conveyed and pass together with a reversion in fee by the same general words in an ordinary lease and release. (d)

15. Deeds to lead or declare uses, and 16.

deeds of revoca

tion of uses,

and 17. Deeds to charge and discharge in

cumbrances on land.

Some other

titles or modes

of establishing a right or inte

rest not before enumerated.

18. Title by award.

15. Then are usually enumerated, deeds to lead or declare the uses of other distinct conveyances, as well at common law as under the statute of uses; and 16. Deeds of revocation of uses; and 17. Deeds to charge or discharge incumbrances on land, such as bonds or obligations, recognizances and defeazances on each, and to which we shall here merely thus allude.(e)

In the preceding arrangement we have adhered to the order adopted by Blackstone and other elementary authors on this subject, but there appear to be some titles still to be noticed, such as titles or interests, 18. By Award; 19. By Jointure or Settlement; 20. Voluntary Conveyances; 21. Fraudulent Conveyances; 22. Legal and Equitable Mortgages; and 23. Licenses.

18. Although it was formerly thought otherwise, it is now settled, that disputes respecting title to land or tithes, or other incorporeal hereditaments, may be referred to arbitration, and that one person may, by an award founded upon a proper order or agreement of reference, be directed to execute all the necessary conveyances to the other, and to perform all such acts as may be requisite to confer the perfect right as well as the possession; (f) and an award, that one of the parties is the

(c) 2 Preston on Convey. 211; 2 Cru. Dig. Lease and Release; Cases and Op. 143 to 149, tit. Reversion.

(d) 7 Bing. 760; and see the effect of a conveyance by lease and release of a reversion expectant on a term, and the mode of pleading such a conveyance,

Co. Lit. 270, a., n. 3; 4 Cruise, 199; 2
Chit. Pl. 5 ed. 578.

(e) See fully, 2 Bla. C. 339, 340, and

notes.

(f) Rol. Ab. Arbit. E. 2 (2) B. 14, K. 15; Willes, 248; 3 East, 15; 7 East, 81; 3 Taunt. 426.