l'estate: (e) If there be three joint-tenants, and one release to On release by one of three joint-tenants to one of the other all his right, this enre th by way of one of his companions, mitter l'estate, and passeth the whole fee-simple with- it enures de mitter out the word (heirs). But if there be two joint tenants, (e) 40 E. 3. 41. and the one of them release all his right to the other, 46 E. 3. 19 H. 6. this doth not to all purposes enure by way of mitter but a release by one of l'estate, for it maketh no degree, and he to whom the two joint-tenants to the other, all release is made shall for many purposes be adjudged in purposes enure de mitfrom the first feoffor, and this release shall vest all in the other joint-tenant without the word (heirs). 33 H. 6. 5. 10 Ε. 4.8. ter l'estate. ter l'estate. 10 E. 4. 3. b. 37 H. 8. But if there be two coparceners, and the one release On release by one of two coparceners to the all his right to the other, this shall enure by way of mit- other, it enures de mitter l'estate, and shall make a degree, and without the word (heirs) shall pass the whole fee simple. And it to be observed, that to releases that enure by way mitter l'estate, there must be privity of estate at the Words of inheritance time of the release. is tit. Alienation. Br. 31. of 31 H. 4. 8. 40 Ass. 5. If two coparceners be of a rent, and the one of them *take the ter-tenant to husband, the other may release to her, notwithstanding the rent be in suspense, and it shall enure by way of mitter l'estate, and she may release also to the ter-tenant, and that shall enure by way of extinguishment: but if she release to her sister and to her husband, it is good to be seen how it shall enure. 9 Eliz. Dier. 263. not necessary to are- (2 Rol. Abr. 403. Vid. Litt. fol. 68, 69. Littleton has now spoken of releases that enure by way of enlargement of the estate, of releases that enure (8 H. 4. 8.) Ante, by way of mitter l'estate, and of releases that enure by 280 a.) way of mitter le droit. So as of that which hath been said by our author of releases, it appeareth that some do enure by way of enlargement of estate, some by way of mitter l'estate, some by way of mitter le droit, by way of entry and feoffment, and some by extinguishment. (516)* CHAP. XLI.* SAME SUBJECT. OF A CONFIRMATION. 1 295 b. Definition of a con- Its nature and opera- Braet. lib. 2. fol. 27. 3 CONFIRMATION, confirmatio, cometh of the verb (*) confirmare, quod est firmum facere: and therefore it is said, that confirmatio omnes supplet defectus, licèt id quod actum est abinitio, non valuit. A confirmation is a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased (A). A confirmation doth not strengthen a void estate (B). Confirmatio est nuila ubi donum præcedens (A) A confirmation is an approbation of, or assent to, an estate already Rep. 646.10 E. 2. Con- created; by which the confirmor, as far as it is in his power, strengthens firm. 24. 32 E. 3.9. and makes it valid. It has this operation only, with respect to estates voidable or defeasible; but it has no operation on estates which are ab. solutely void. Such words may be used in a confirmation as may in. crease or enlarge the estate; but that, as Lord Chief Baron Gilbert ob. serves, is by force of such words, and is foreign to the business of confirmation. Gilb. Ten 75. [Butler, Note 253. And wherever an estate is to be enlarged by a confirmation, privity is requisite, as well as in the case of a release. Infra, 296 a. The effect of a confirmation is to give validity to a voidable or deteasible estate; but it cannot operate upon an estate which is absolutely void. Supra, 295 b. The proper technical words of a confirmation are, ratify, approve, and confirm, Infra, sect. 520; but the words "give and grant, or demise," have the same effect in some cases as the word "confirm." Infra, sect. 531.-[Ed.] (B) Though it be a rule that things ipso facto void cannot be made good by acceptance, yet it is not without exception; as if tenant in tail makes a lease to commence in futuro, and dies before the day, and the lessee enters, the issue in tail may have an action of trespass against him, or he may by acceptance make it good. Per Holt, C. J. Pullen v. Purbeck, 12 Mod. 361.-[Ed.] est invalidum, et ubi donatio nulla omnino nec valebit confirmatio: for a confirmation may make a voidable or defeasible estate good, but it cannot work upon an estate that is void in law. Non valet confirmatio nisi ille qui confirmat sit in possessione rei, vel juris unde fieri debet confirmatio, et eodem modo nisi ille cui confirmatio sit, sit in possessione. And another saith, (a) (a) Fleta, lib. 3. Confirmare est id quod prius infirmum fuit firmare. cap. 14. & Et donationum alia incepta, et defectiva, et post tempus confirmata, *confirmatio enim omnem supplet defectum, poterit enim esse in pendenti donec per ratihabitionem hæredis cùm ad ætatem pervenerit roboretur. сар. 3. lib. 3. (517)* Here it is to be observed, that there be two kinds of. The different kinds. confirmations, viz. confirmations express or in deed, whereof Littleton (sect. 515) hath put three examples, and confirmations implied, or in law, whereof Littleton hereafter speaketh in this chapter. Quælibet confirma- Lib. 9. fol. 142. tio, aut est perficiens, crescens, aut diminuens; and Beamond's case. of all these Littleton putteth examples in this chapter. Fleta, lib. 3. cap. 14. And hereof Fleta saith, carta autem de confirmatione est illa quæ alterius factum consolidat & confirmat & nihil novi attribuit, quandoque tamen confirmat & addit (1) A DEED of confirmation is commonly in this LITTLETON. form, or to this effect: Know all men, &c. that I, A. [Sect. 515.295b.] 1. Confirmation in of B. have ratified, approved, and confirmed to C. of deed, by what words D. the estate and possession which I have, of and in made. one messuage, &c. with the appurtenances in F. &c. Here first our author shows what a confirmation is: "Ratificasse." Ratificare est ratum facere, and is æquipollent to confirmare, which, as hath been said, is firmum facere. 295 b. Bract. lib. 2. fol. 32 b. & 58, 59. Brit. 235. 44 Ass. 3. (1) See 9 Rep. 142. where Sir Edward Coke brings examples of these different operations of a confirmation. [Butler.] VOL. II. 4 и "Approbasse" cometh of ad and probo, which is to make perfeet and good. LITTLETΟΝ. 2. Confirmation in law, by what words created. ALSO, in some case, this verb dedi, (1) or this verb [Sect. 531.301b.] concessi, hath the same effect in substance, and shall enure to the same intent, as this verb confirmavi. As if I be disseised of a carve of land, and (2) I make such a deed; sciant præsentes, &c. quòd dedi to the dis Operation of the word seisor (3), &c or quòd concessi to the said disseisor, the "grant," (518)* 301 b. 21 H. 6. feoffment & faits 103. 22 Η. 6. 42. 14 H. 4. 36. 19 Н. 6. 32 E. 3. Briefe 291. said carve, &c. and I deliver only the deed to him without any livery of seisin of the land, this is a good *confirmation, and as strong in law, as if there had been in the deed this verb confirmavi, &c. Here Littleton proceedeth, according to the former division, to show words that in law do amount to a confirmation. And here is to be observed, that some words are large, and have a general extent, and some have a Bract. lib. 2. fol. 59 b. proper and particular application. The former sort may contain the latter; as dedi, or concessi, may amount to a grant, a feoffment, a gift, a lease, a release, a confirmation, a surrender, &c. and it is in the election of the party to use to which of these purposes he will. 44. 7 H. 7. 16. Brooke tit. Confirm. 14 Η. 4. 36. Lib. 5. fol. 15 in Newcoman's case. *302 a. 22 F.4.56. 40 E.3.31. (Sid. 452. Plo. 196. Rep. 17 a. And he to whom such a deed comprehending dedi, &c. is made, may plead it as a grant, as a release, or as a confirmation, at his election (n). If a parson and ordinary make a lease for years of the glebe to the patron, and the *patron by his deed granteth it over, or if the disseisor granteth a rent to the dissei (1) ou-et. L. and M. and Roh. (2) puis, added L. and M. and Roh. (3) &c. VEL QUOD CONCESSI a le dissessor, &c. not in L. and M. nor Roh. (D) But a lease and release, either at the common law, or through the medium of a bargain and sale, cannot be pleaded as a feoffment, Bro. Feotiment, pl. 44. Vin. Abr. B. 2. pl. 1. 2 Prest. Conv. 238: nor as a grant of the reversion. Noy. 66.-[Ed.] : see, and he by his deed granteth it over, and after re-enter; in both these cases one and the same words do amount both to a grant, and to a confirmation in judgment of law of one and the same thing; ne res pereat. And so it is if a disseisor make a lease for life, or a gift in (Ant. 280. Post, 298. 5 Rep, 15, 16. tail, the remainder to the disseisce in fee, the disseisee by his deed granteth over the remainder, the particular tenant attorneth, the disseisee shall not enter upon the tenant for life, or in tail, for then he should avoid his own grant, which amounted to a grant of the estate, and a confirmation also. 302 a. Est autem confirmatio quasi quædam ratihabitio, sufficit tamen quandoque per se, si etiam in se Bract. lib. 2. fol. 59 b. contineat donationem, ut si dicat quis, dedi et confirmavi, licèt juvari possit ex aliqud donatione præcedente. (519)* *But a release, confirmation, or surrender, &c. cannot (4 Rep. 80 b. 2 Cro. 169. Mo. 34. amount to a grant, &c. nor a surrender to a confirmation, Plo. 397, 398.) or to a release, &c. because these be proper and peculiar manner of conveyances, and are destined to a special end (E). "Dedi et concessi, &c" Here is implied that there be more words than dedi and concessi, that will amount "demise." Confirm. 20. Vid. to a confirmation, as dimisi. (b) In ancient statutes and (b) 32 E. 3. Briefe in original writs, as in the writ of entry in casu proviso, 291. Brooke tit. in consimili casu ad communem legem, and many le stat. de Gloc. ca. 4. others, this word dimisi is not applied only to a lease for life, but to a gift in tail, and to a state in fee. (c) (c) 7 Ε. 3.9. Also if a man make a lease to A. for years, and after by his deed the lessor voluit quòd haberet et teneret terram pro termino vitæ suæ ; this is adjudged by this verb (volo) to be a good confirmation for term of his life. will." (E) That a release may operate as a substantive grant when it is made by the owner of a reversion or remainder, see 2 Prest. Conv. 332. 439, A to the effect of the word "grant," in implying a warranty, see ante, p. 252. 254. n. (1) and (K)-[Ed.] |