power, as at common law. 1 Mad. Rep. 221. 224. But it seems that neither a power of sale, nor a power of exchange, will authorize a partition. MQueen v. Farquhar, 11 Ves. 467. Attorney General v. Hamilton, 1 Mad. Rep. 214. However, a partition or an exchange may be effected circuitously under a power of sale. See 2 Ves. jun. 101. 4 Bro. C. C. 285. Sugd. Pow. 469. And it seems that a tenant for life under a power of sale and exchange, may sell or exchange with his trustees. Ibid. Et vid. 9 Ves. 52. 11 Ves. 480. We have already had occasion to notice the difference between an exchange and a partition. Ante, vol. 1. p. 718. n. (R). It may be further observed, that a partition, which is the sixth and last of the several kinds of original conveyances before-mentioned, is a deed by which two or more joint-tenants, coparceners, or tenants in common, divide the lands so held among them into separate and several parts, each taking a distinct part in severalty. Here, as, in some instances, there is a unity of interest, and in all a unity of possession, it is necessary that they should all mutually convey and assure to each other, the several estates which they are to take in severalty under the partition. By the common law, coparceners being compellable to make partition, might have made it by parol only, but joint-tenants, and tenants in common, must have done it by deed; and, in both cases, the conveyances must have been perfected by livery of seisin. But the Statute of Frauds has now abolished this distinction, and made a deed equally necessary in all cases. 2 Bl. Com. 323, 324. Every partition implies, and has annexed to it, a warranty in law; and, in all modern deeds of partition, there are mutual covenants for the title. 4 Cru. Dig. 143. See further as to a partition, vol. 1. p. 692. n. (М). р. 698. п. (N). p. 701. п. (55). p. 704. n. (O). p. 720. n. (S) p. 726, д. (T). p. 753. n. (83). n. (R). p. 789. n. (U).-[Ed.] (451)* CHAP. XL.* SAME SUBJECT. OF RELEASES. (A.) LITTLETΟΝ. RELEASES are in divers manners, viz. releases of all [Sect 444.261a] the right which a man hath in lands or tenements (1), The different kinds of and releases of actions personal and real, and other 261 a. Vid. Mirror, cap. 2. sect. 17. Vid Britt. 101. Bract lib. 5. Tract. de Except. & 1. 4 fol. 318 b. Fleta lib. 3. cap. 14. things. Here our author beginneth with a division of releases. These words must be referred thus: releases are of two sorts, viz. a release of all the right which a man (1) &c. added in L. and M. (A) The several species of primary or original conveyances having been explained in the preceding chapters, we now come to consider the secondary or derivative sort; which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. Among this last sort are classed releases; which are defined to be, a discharge of conveyance of a man's right in lands or tenements, to another who has possession, or some estate therein, 2 Bl. Com. 324. 5 Bac. Abr. 680. tit. Release. By the common law, where a man had the actual possession and right of property in lands, he could only convey them by feoffment, with livery of seisin; but as it frequently happened, that the actual possession was in one person, and the right of possession or right of property in another: in case the Derson who had the right of possession or right of property was willing to convey those rights to the person who had the actual possession, it was done by a discharge of his right to the person in possession; which species of conveyance acquired the name of a release. A feotimert would, in such a case, have been useless, because it could not transier the possession, as the person was in possession already. A re hath either in lands and tenements, or in goods and chattels: or there is a release of actions real, of or in lands or tenements; or personal, of or in goods or chattels; or mixt, *partly in the realty, and partly in the personalty. (452)* *264 b. Vid. sect. 492. "Release," Relaxatio. Of the etymology of this word you have heard before. Fleta (a) calleth it char- (a) Fleta, ubi supra, ta de quieta clamantia. RELEASES of all the right which men have in LITTLETON. lands and tenements, &c. are commonly made in this [Sect. 444.264b.] form, or of this effect : what words created. KNOW all men by these presents, that I, A. of B., LITTLETON. * have remised, released, and altogether from me and [Sect. 445.264b.] my heirs quiet claimed; or thus, for me and my heirs Release in deed; by quiet claimed to C. of D. all the right, title, and claim which I have, or by any means may have, of and in one messuage with the appurtenances in F., &c. And it is to be understood, that these words, remisisse, et quietum clamâsse, are of the same effect as these words, relaxâsse. " Know all men by these presents, &c." Here Littleton showeth precedents of releases of right: and precedents do both teach and illustrate, and therefore our student is to be well stored with precedents of all kinds. lease is, therefore, a conveyance of a right, to a person in possession. Thus, where a man was disseised, the disseisor acquired the possession. and the right of possession and property remained in the disseisee. Ante, p. 154. n. (A). p 155.n. (C). Now, if the disseisee agreed to transfer his rights to the disseisor, the proper mode of carrying such an agreement into execution was, by a release; for the disseisor being already in possession, it would have been useless to have made him a feoffment. Gilb. Ten. 53. 4 Cru. Dig. 143, 144. Releases of land, in respect to their operation, are divided into four sorts, 1st. Releases that enure by way of passing a right, or mitter le droit; 24. Releases that enure by extinguishment; 3d. Releases that enure by enlargement; and 4th. Releases that enure by way of passing an estate, or mitter l'estate. The doctrine as to releases in general, and that which particularly relates to releases of land, will be stated in the present chapter: releases of actions real, personal, and mixt, will be considered in a subsequent part of this work.-[Ed.] VOL. 11. 3 x 264 b. Bract. lib. 4. fol. 308. "Remisisse, relaxûsse, et quietum clamasse." Here Littleton showeth, that there be three proper words of release, and be much of one effect: besides, there is Congeab. 57. (2 Rol. Abr. 400. 403. renunciare, acquietare, and there may be many other • Rep. 52.) 265 a. (10 Rep. 47.) (453)* Release in law. 27 Η. 8. 29. of an an Attaint. 3 E. 3. 38 21 Ε. 4. 81. words of a release; as if the lessor grants to the lessee or life, that he shall be discharged. of the rent, this is a good release. Vid. Sect. 532 (в). “All the right, title, and claim (totum jus, titulum, et clameum)." But note, that jus, or right, in general signification includeth not only a right for the which a writ of right doth lie, but also any title or claim, either by force of a condition, mortmain, or the like, for the which no action is given by law, but only an entry. And it is to be understood, that there be releases in deed, or express releases, whereof Li tleton here hath showed an example. These express releases must of Use. 34 H. 6. 44. of necessity be by deed. There be also releases in law, and they are sometime by deed, and sometime without deed. As if the lord disseise the tenant, and maketh a feoffment in fee by deed or without deed, this is a release of the Seignory. And so it is, if the disseisee disseise the heir of the disseisor, and make a feoffment in fee by deed or without deed, this is a release in law of the right. And the same law it is of a right in action. Pl. Com. Delemere's case. (8 Rep. 136. Plo 185, 185. Hob. 10. 1 Sid. 79. 1 Rol. Abr. 934. Plo. 36. 5 Rep. 29.) 8 Ε. 4. 3. 21 Ε. 4. 2. If the obligor make the obligee his executor, this is a release in law of the action, but the duty remains, for the which the executor may retain so much goods of the testater (c). (B) Littleton hereafter observes, that a release of all demands is the best and strongest release; and Lord Coke adds, that the word "demand" is the strongest word in the law, except the word "claim:" and that a release of all demands discharges all sorts of actions, rights, aurd titles, conditions, before and after breach, executions, appeals, rents of all kinds, covenants, contracts, recognizances, statutes, &c. Post, sect. 508. 291 b. -[Ed.] (C) If a del tor appoints his creditor to the executorship, he is allowed to retain his debt, in preference to all other creditors of an equal degree. This remedy arises from the mere operation of law, on the ground, that it were absurd and incongruous that he should sue himself, or that the *If the feme obligee take the obligor to husband, this (455)* is a release in law. The like law is, if there be two 11 H. 7. 4. 20 H. 7. 29. 8 Ε. 4.3. same hand should at once pay and receive the same debt. And, therefore, he may appropriate a sufficient part of the assets, in satisfaction of his own demand; otherwise ne would be exposed to the greatest hardship; for, since the creditor who first commences a suit is entitied to a preference in paymeat, and the executor can commence no suit, he must, in case of an insolvent estate, necessarily lose his debt, unless he has the right of retaining. Thus from the legal principle of the priority of such creditor as first commences an action, the doctrine of retainer is a natural deduction; but the privilege is accompanied with this limitation, that he shall not retain his own debt as against those of a higher degree; for the law places him merely in the same situation as if he had sued himself as executor, and recovered his debt, which there could be no room to suppose, during the existence of those of superior order. Toll. Law. Ex. 295, 296. Et vid. 2 Bl. Com. 511. 3 Bl. Com. 18, 19. Off. Ex. 32. 112, 143. Com. Dig. Admon C. 2. 5 Bac Abr. 686. Rol. Abr. 922, 923. Plowd. 185. 543. 11 Vin. Abr. 72. 261. Winch. 19. 3 Burr, 1580. 1384. But though an executor may retain both at law and in equity for his own debt, as against other creditors of the same degree, 11 Vin. Abr. 265. n. 1 P. Wms. 295. Georges v. Georges, 18 Ves. 206; yet equity will restrain him from perverting this privilege to the purpose of fraud Toll. Law. Ex. 298. Off. Ex. 33. But, if there are not assets, the action is not so much as suspended, and the executor may sue the heir, where the heir is bound. Rol Abr. 940. Salk. 304. So if a creditor be appointele ecutor with others, he may sue them, especially if he has not administered. Cro. Car. 372. Jon. 345. Off. Ex. 33. And the bare appointment of a creditor to be executor, if he refuse to act, will not extinguish his legal remedy for the recovery of his debt. Roulinson v. Shawe. 3. T. R. 557. On the other hand, if a creditor appoints the debtor his executor, such appointment shall operate as a release and extin nishment of the debt; on the principle that a debt is merely a right to recover the amount by way of action, and as an executor cannot maintain an action against himself, his appointment by the creditor to that office discharges the action, and consequently discharges the debt. Toll. Law. Ex. 347, 348. Et vid. 5 Bac. Abr. 686. 2 Bl. Com. 511, 512. Off. Ex, 31. Salk. 299. Plowd. 186. Com. Dig. Admon. B., 5. Rol. Abr. 920, 921. 5 Co. 30. Thus, if the obligee of a bond make the obligor executor, this amounts to a release at law of the debt. 8 Co. 136. If several obligors be bound jointly and severally, and the obligee constitute one of them his executor, it is an extinguishment of the debt, and the executor is incapable of swing the other obligors. Off. Ex. 31.11 Vin. Abr. 308. So where the obligee in a joint and several bond made one of two oblgors his executor, with others, and the obligor executor administered; it was held that the action was discharged as to all the obligors, Che tham v. W'ard, 1 Bos. & P. 630, The debt is also released where only one of several executors is i debted to the testator, for one executor cannot maintain an action agai sanother. Off. Ex. 31; and after the death of such executor, the surviving executors cannot sue his representative for the debt. Id. 32. Plowd. 264. Leon. 320. Nor is the case varied by the executor's dying, without having proved the will, or having adımninistered (Salk. 300. Plowd. 184. Of. Ex. 31.), or even by his refusal to act with his co-executors (Salk. 308.), unless he formally renounced the office in the spiritual court. Salk. 307. In all these cases the legal remedy is destroyed by the act of the party, and therefore is for ever gone. Cro. Car. 373. Salk. 302; but the effect is different where it is suspended merely by the act of law. Slk. 303; as if administration of the effects of a creditor be committed to the : |