nistration to one or more of the obligors, is no discharge of the obligation. And if the obligor make the obligee his executor, this is no discharge of the obligation, [but he may retain and pay himself, as between creditors in equal degree with himself. The distinctions on this subject are collected by Mr. Thomas, in his Co. Litt. vol. 2, p. 453, n. C.]

If the obligee be a woman, and take the obligor Bro. Oblig. 61. to husband, [so that he is her husband at any time after the bond might be put in suit, and thus the action is once suspended,] hereby the obligation is discharged.

If the condition be to enfeoff K. S. (a woman) Fitz. Barre, 133 before such a time, and before the day the obligor doth marry the woman; this doth not discharge the obligation; [for this is his act, and at law he renders the performance of the condition impossible. In equity, the agreement may be performed by a conveyance to uses.]

If the condition be to serve me seven years, and Dyer, 329within the time I license him to depart, it seems that hereby the obligation is discharged: and yet if the condition be to stand to an award, and it is awarded that one of the parties shall pay 5l. a year for seven years, [being the substance,] towards the education of I. S. [being merely a direction of the application, and I. S. die within the seven years, the obligation is not discharged by his death, but the money must be paid during the time notwithstanding.

If the condition be to do two things, or stand Dyer, 371. upon divers points; and the obligee, supposing the breach of one of them, doth sue the obligor, and the issue being joined upon that point, it is found against the plaintiff, and he is barred; hereby the whole obligation is discharged; and, so long as that judgment is in force, he can never sue the obligation upon any other point within the condition.

If the condition be to satisfy me for goods I Fitz. Barre, 64. have delivered to I. S. if they be lost; and afterwards they be lost, and I sue I. S. and have him in execution for them; by this the obligation is not discharged: but perhaps when I have satisfaction of I. S. being in execution for the goods, the obligation may be gone.

And in all cases, by which a deed in general may become void by matter ex post facto, as by rasure or the like, an obligation may become void.

Co. super Lit.

113.

CHAP. XXII.

Of a Defeasance.

*THIS in a large sense doth sometimes signify a 1. Defeasance.
condition annexed to an estate; and sometimes Quid.
the condition of an obligation made with, and an- *P. 396.
nexed to, the obligation at the time of making
thereof: but it is more peculiarly and properly
applied to such conditional [and distinct] instru-
ments, as are made in defeasance and avoidance
of statutes and recognizances, at the time of enter-
ing into the same statutes or recognizances; and
to such conditional instruments as are made in
defeasance of statutes, obligations, and the like,
after the time of [at which] the same statutes [are]
entered into, and obligations, &c. made; and it is
therefore defined as follows.

A defeasance is a condition relating to a deed,
[or executory contract,] as to an obligation, recog-
nizance, statute or the like, which being performed,
by the obligor or recognisor, the act is disabled
and made void, as if it had never been done; which
differeth from a condition only in this, that this
[the condition] is always made at the same time,
and annexed to, or inserted in, the same deed, [and
is part thereof; for quæ incontinenti fiunt inesse
videntur;] but that [the defeasance] is always made
in a deed by itself, and for the most part made after
the deed whereunto it hath relation (1).

2. Where and in what cases a

There is no inheritance [or other subject] execu236, 237.1.111. tory, as rents, annuities, conditions, warranties, Plow. 137. 193. covenants, and such like, but may by a defeasance, made with the mutual consent of all those which were parties to the creation thereof at the same [time,] or at any time after, be annulled, discharged not.

21 H. 7. 23. Bro. Defeasance in toto.

defeusance may be; and what things may be defeated and avoided thereby; and where, and what

(1) A defeasance is a collateral deed, made [and declared) at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated or totally undone. 2 Bl. Com. 327. A defeasance on bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it: it differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deed. Ibid. 342. See further as to the nature of defeasance, and what shall be said to amount to one, in Com. Dig. Defeasance (A.); Wood's Inst. 293; Vin. Abr. Defcasance (F.)

!

199.]

and defeated. And so is the law of statutes, re-
cognizances, obligations, and the like; yet so, as
in all these cases regularly, the defeasance must be
made eodem modo [by the like solemnity] as the
thing to be defeated was and is created, viz. if the
one be by deed, the other must be so also: for it is
a rule, that in all cases, where any executory thing
is created by a deed, that the same thing, by the
consent of all persons who were parties to the
creation of it, (or at least all those persons who
are interested in the subject to be defeasanced,]
may be by their deed defeated and annulled;
and therefore that warranties, recognizances, rents,
charges, annuities, covenants, leases for years,
[though not leases for lives, (see practical note on [2 Prest.
this point in application to mortgages, and the Convey. 166.
difference between mortgages in fee and for years,)]
uses at common law, [consequently trusts at this
day, and even uses to be executed by the statute
27 Hen. 8, c. 10, while these uses are executory,]
and such like, may, by a defeasance made with
mutual consent of all those that were parties to the
creation of it, [or who are concerned in interest,]
by deed, be discharged and avoided. [And a defeas-
ance by the assignee of a lease for years, to the
assignee of the reversion, will be good; and yet
neither of these persons was a party to the con-
tract. So the executor, &c. may defeasance a bond
to the heirs, executors, &c. of the obligee.] Nil est
tam conveniens naturali æquitati quam quod unum-
quodque dissolvi potest eo ligamine quo ligatur. And
therefore by such a defeasance, not only the cove-
nant which doth create a power of revocation, but
the power itself created, may be utterly defeated
and avoided: but estates of inheritance and other
estates in tail or for life, [in things lying in livery,
as distinguished from rents, &c.] executed by livery,
&c. [or by grant or by use,] cannot be avoided by
defeasance made after the time of their creation
and first making [or rather vesting.] And yet by
* another deed of defeasance made at the time, [and
under these circumstances, there is a condition, and
not a defeasance, properly so called,] a feoffment,
release, lease for life, or other executed thing, may
be avoided, as well as if it were by condition within
the same deed: as if a disseisee release to the dis-
seisor, this release cannot be defeated by an inden-

Co. 1. 113.

* Bro. Defeas.

12.

Fitz. Barre, 95.

►Plow. 393.

ture of defeasance made afterwards; but it may be
defeated by an indenture of defeasance made at
the same time. Quæ incontinenti fiunt inesse
videntur (2). [This proposition is not correctly ex-
pressed; at all events, a release of right cannot be
made on a condition subsequent; that the condi-
tion may be good, it must be precedent. So a de-
feasance or condition may be annexed to a term of
years after its creation. Bul. Nisi Prius, 158;
Co. Litt. 237, a; Yelv. 177. On the subject of
defeasances to declarations of uses and trusts, an
ample discussion, with the more important distinc-
tions, will be found in the 2 Prest. Convey. 166.
199.203.]

To make an effectual] defeasance, these things are requisite: 1. That the defeasance be made eodem modo, [i. e. by equal solemnity,] as the thing to be defeated is created: for if the obligee by word only discharge the obligor, or grant not to sue him, this will not defeat the obligation; it must be by deed therefore, as the former was. * But whether the deed or defeasance be indented or poll is not material: 2. That if it do recite the statute or the obligation, (as for the most part it doth,) that it be done truly: for if a defeasance be made of a statute or an obligation, which is recited to be made the 10th day of May, whereas in truth it beareth date the 1st day of May, this defeasance is void, [inasmuch as it refers to that which does not exist; and the date is so material a part of the description, that it cannot be corrected by averment; hence the utility of taking away the materiality of the date, by reciting deeds, as bearing date on or about, &c. This mode lets in an averment of the true date.] 3. That it be made between the same persons that 10 Bro. Estrang were parties to the first deed, &c. [or so many of them as are concerned in interest, or their representatives; for it is sufficient that they represent the person, and are privy in point of interest, as heirs, executors and administrators, whether they are by the defeasance to grant or accept the discharge; and therefore if A. be bound in an obligation to B. in 201. and B. make a defeasance to C. that if C. pay him 201. the obligation made by

e

14 Η. 8.

3. What shall defcasance; and what not.

be said a good

For the manner of it.

ance, 5.

A. shall be void; this is no good defeasance, because it is not made between the same parties. * And yet if a statute be made to the husband and Bro. tit. Dewife, and the husband alone, [having acquired the feasance, 3. right by marriage,] join in the making of a difeasance, this is a good defeasance. 4. That it be Bro. Defcasmade after, [or at the time of, i. e. cotemporaneous with,] the making of the recognizance, obligation, &c. and not before: for if A. grant to B. that if B. will be bound to him in 201. by obligation, that the obligation shall be void; and after B. doth bind himself to A. in an obligation of 201. that defeasance is not good, because it is before the obligation. 'And yet if Dyer, 315the date of the defeasance be before the date of the recognizance, &c. and it be delivered after, it is good enough; [because the defeasance (as is the case in regard to all the other deeds) takes effect by delivery, and the time of delivery may be shown; and it may be remarked, that the use of the date is to ascertain the time at which the transaction took place. The presumption of law is, that the time of the date is the time of delivery, but the presumption may be rebutted by proof of the fact; and such proof is admissible.] 5 That it be made of a thing For the matter defeasible: for if a disseisee release his right to & Plow. 137. the terre-tenant, and after there is a defeasance Bro. Defeasmade between them, that, if the releasor shall pay 201. to the releasee, the release shall be void; this is a void defeasance. [The true reason seems to be, that a release of a right cannot be on a condition subsequent. See supra, p. 323, 397. The reason assigned by Gawdy in his argument, reported by Plowden, is, that the right was extinct before the release was executed.] And yet a release may be avoided, Bro. Defeasby a condition or defeasance made at the time of ance, 6.9. making of a release as well as a feoffment; [pro- 236. vided it be a condition annexed to a release, operating in enlargement of an estate.]

of it.

ance, 1.

Co. super Lit.

If the defeasance of a recognizance, obligation, SeeWest. Symb. &c. be, that if the conusor or obligor, &c. pay a sum of money, or do not disturb the execution of the will of I. S. or do make a lease for years to I. S. or the like; these are good defeasances. As if the grantee of a rent-charge grant to his grantor, that if he shall pay him 201. such a day, the grant of the rent shall be void. Albeit the condition of 20 H. 7. 24an obligation, that is repugnant to the obligation Fitz, Barre, 71.