be construed to extinguish or hurt his term (36),
[but merely as his assent to the feoffment; and the

(36) See more amply in Com. Dig. Feoffment (B. 5.) Vin. Abr. Feoffment (L.) 1 Wood, 526. Bac. Abr. Feoffment (B.) In what cases livery shall be presumed at law, or supplied in equity, see before in page 205, and further in 1 Wood, 529. Vin. Abr. Feoffment (F. a.)

The reader, it is presumed, from perusing this chapter, and consulting the authors referred to in it, must be well convinced of the excellent nature of the conveyance by feoffment with livery of seisin. This conveyance is now but very little used (as was observed before in page 200), but it is still nevertheless a formal, valid, and effectual mode of conveyance; it has however been of late years almost entirely superseded by the conveyance by lease and release. The editor apprehends he cannot explain this circumstance, and the origin and nature of the conveyance by lease and release, more satisfactorily to the reader, than by selecting particular passages from some of our most respectable legal writers, in the order of time in which they have written concerning it. Lord Bacon, in his Treatise on the Use of the Law, page 154, speaking of the inconveniences of the putting lands into use before the statute of Uses, and the frauds which were occasioned thereby, says, that " in the end of 27 "Hen. 8, the parliament, purposing to take away all those uses, and reduce the law to the ancient form of conveying of lands by public livery of seisin, fine, and recovery, did ordain, "that where lands were put in trust or use, there the possession and estate should be presently carried out of the friends in trust, and settled and invested on him that had the uses, for such term and time as he had the use."

In Dalrimple on Feuds, p. 210, it is said, in England, although originally conveyances by deed of party were executed by acts of enfeoffment; which, as will appear from a comparison of Madox and Craig, correspond in their nature and progress to our (Scottish) charter and seisin; or by fines, which were originally an acknowledgment of such feoffinent in a court of record; yet, earlier than the time of Littleton, it had come into fashion, to transmit land by attornment if there was a tenant, and by lease and release if there was none. [Query if this was ever practised in Littleton's time, except in the particular case of enlarging the estate of a person who was actually the tenant. There is not any instance, it is believed, of a lease and release being used as parts of the same assurance.] In the first of which cases, the form of getting the consent of the tenant of the ground to the transfer, supplied the place of that livery, which could not be given; and, in the other case, the grantor gave to the grantee an imaginary lease, in order to put him into possession, and the next minute released; or, in the language of the law of Scotland, renounced all right or interest he had in the land.

In attornment something was done to supply the want of livery, and in lease and release the entry gave livery; but a statute of Hen. 8, by making provisions concerning a form of conveyance, which had been before in use, enabled people to dispense with these two shadows of a form, and with the circuit of a feoffment altogether. The form of conveyance by bargain and sale, made secure by writing and enrolment, by virtue of this statute, corresponds to the disposition without enfeoffment in Scotland. This last with us doth not transfer; it is only a step to the transfer; but in England, on a bargain and sale, all notion of a superior or delivery is lost: the moment the deed is enrolled, the estate, to almost all effects whatever, is vested ab initio; nor can there be any dispute between competitor purchasers, except what arises from the dates of their respective enrolments. [The first bargain and sale will prevail, if enrolled in due time, although there is a prior enrolment of a second bargain and sale.]

In 1 Wood's Conveyancing, p. 714, a conveyance by lease and release is described to be, where he who is to convey any lands or tenements first makes a lease (or bargain and sale,) of the premises to the person to whom the same is to be conveyed for six months, a year, &c. but usually for a year, to the intent that by virtue thereof the lessee may be in the actual possession of the premises granted by the lease, (or bargain and sale,) and intended to be released to him; and then the lessee (or bargainee) by virtue of the statute of the 27 Hen. 8, c. 10, for transferring uses into possession, is enabled to take a grant or release of the reversion or inheritance of the said lands, to the use of himself and his heirs for ever, &c. and then a release (usually dated the day next after the date of the lease, reciting the said lease and declaring the uses) is accordingly made; which, in this case, is a conveyance of

1

statute of Uses (27 Hen. 8, c. 10,) has incorpo-
rated a provision to save the term of a person
who is a mere instrument, as feoffee, &c. to uses.]
See more in Exposition of Deeds, supra, ch. 5.

And so we come to another kind of deed of
common assurance, called a Bargain and Sale.

one's right or interest that he has in a thing to another who has the possession thereof; [or rather, a precedent estate therein.]

A lease and release are but one conveyance, [or rather, parts of the same assurance,] and in the nature of one deed. 2 Mod. 252. Lease and release is now become the most common conveyance of lands. It amounts to a feoffment, [or rather, it answers the purposes of a feoffment, considered simply as a conveyance]; for by the said statute the uses are transferred into the possession, so that thereby the place of livery of seisin is supplied; which indeed saves much trouble, especially when the bargainor, &c. lives at a distance from the premises: in which case a letter of attorney to make livery was obliged to be made; otherwise the bargainor, &c. was to deliver seisin in person.

Mr. Justice Blackstone, treating of the statute of Uses, (in the second volume of his Commentaries, p. 337,) says, The only service to which that statute is now consigned is, in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only ancient conveyance of corporeal freeholds; the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead. And, in the same volume, p. 339, describing the conveyance by lease and release, says, That mode of conveyance was first invented by Serjeant Moore, soon after the statute of Uses, and now the most common of any, and therefore not to be shaken; though very great lawyers, (as particularly Mr. Noy,) have formerly doubted its validity. It is thus contrived: a lease, or rather bargain and sale upon some pecuniary [should be valuable] consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now this, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the statute immediately annexes the possession [read, estate.] He therefore, being thus in possession, is capable of receiving a release of the freehold and reversion; which, we have seen before, must be made to a tenant in possession; and accordingly, the next day, a release is granted to him. This is held to supply the place of livery of seisin; and so a conveyance by lease and release is said to amount to a feoffment. Mr. Hargrave, in note 3, to the 13th edition of Coke's Littleton, 48 a, says, But since the introduction of uses and trusts, and the statute of 27 Hen. 8, for transferring the possession to the use, the necessity of livery of seisin, for passing a freehold in corporeal hereditaments, has been almost wholly superseded; and, in consequence of it, the conveyance by feoffment is now very little in use. Before the statute of Uses equitable estates of freehold might be created through the medium of trusts without livery, and by the operation of the statute legal estates of freehold may now be created in the same way. Those who framed the statute of Uses evidently foresaw that it would render livery unnecessary to the passing of freehold, and that a freehold of such things as do not lie in grant would become transferrable by parol only, without any solemnity whatever. To prevent the inconveniences which might arise from a mode of conveyance so uncertain in the proof, and so liable to misconstruction and abuse, it was enacted, in the same session of parliament, that an estate of freehold should not pass by bargain and sale only, unless it was by indenture enrolled. See 27 Hen. 8, c. 16. The objects of this provision evidently were, first, to force the contracting parties to ascertain the terms of the conveyance, by reducing it into writing; secondly, to make the proof of it easy by requiring their seals to it, and consequently the presence of a witness; and lastly, to prevent the frauds of secret conveyances, by substituting the more effectual notoriety of enrolment for the more ancient one of livery. But the latter part of this provision, which, if it had not been evaded, would have introduced almost an universal register of conveyances of the freehold, in the case of corporeal hereditaments, was soon defeated by the invention of the conveyance by lease and release, which sprung from omitting to extend the statute to

1

CHAP. Χ.

Of a Bargain and Sale.

1. Bargain and THIS word doth signify the transferring of the Terms of the property of a thing from one to another, upon Co. 2. 35 valuable consideration, [by way of sale.] And herein only it doth differ from a gift; that this [a gift] may be without any consideration or cause at all; and that [a bargain and sale] hath always some meritorious [read, valuable] cause moving ⚫ it, and cannot be without it. This word also is sometimes applied to the assurance or conveyance whereby this [act, the sale of an use,] is done and made, which is called a deed of bargain and sale, for this may [read, might, at the common law,] be done by writing or without writing (1.) A bargain and sale is an instrument evidencing an agreement between the contracting parties, and by which, in consideration of money paid, or some article of value given, (postea, 511. 513,) one party hath sold lands, [or rather the use of lands,] to another for an estate of freehold; and such assurance is not followed up by any of the ceremonies requisite to the conveyance of an estate at common law, as livery of seisin, attornment, &c. But to the validity of a bargain and sale of an use of an estate of freehold, an indenture, and consequently a deed, is essential.]

Terms of the

And sometimes this is and may be of lands, 2. Quotuplex.

2. 35.

Law. Plow. 301. tenements and hereditaments, and to this [assurance] the term is most properly applied. And then it is said to be, where a recompence is given by both parties to the bargain: as where one doth bargain and sell his land to another for money; in this case the land is a recompence to the one for the money, and the money to the other for the land. And this now also is become one of the

Hide, 3 Car.
Co. 2. 54.

Per Chief Just. common assurances of the kingdom; so that such
an assurance may now be averred to be fraudulent
within the statute of 27 Eliz. as well as any other
assurance; a rent may be reserved upon it, or a
condition made by it, as well as by any other kind
of assurance. And sometimes this [bargain and
sale] is and may be of moveable things, as trees,
corn, grass, oxen, kine, household-stuff, and the
like; the property whereof is and may be altered
by this kind of conveyance, as well as by gift or
grant. And this kind of bargain and sale is that
which is commonly called a contract; which,
largely taken, is an agreement between two or
more concerning something to be done, whereby
both parties are bound to each other, or one is
bound to the other. But strictly, it is the buying
and selling of some personal goods, whereby the
property is altered. [5 Taunt. 122; Moor, 74;
Hob. 132; Winch, 7.] And in both these cases
he that doth sell is called the bargainor, and he to Bargainor.
whom the sale is made is called the bargainee.
Bargainee.

Terms of the
Law, Agree-

ment.

Co. 8. 94.
5. 113. 3. 62.

The effect of this [bargain and sale] is to transfer 3. The effect of it. the [use, and by means of the statute of Uses, the] property; [viz. the legal estate ;) and this it will as effectually do as any other kind of conveyance whatsoever (2). And therefore the bargainee of a reversion, howsoever he may not have * benefit *P. 222. of a condition, upon the demand of a rent, without giving notice of the bargain and sale to the lessee ; and howsoever if A. conusee by a fine of a reversion, before attornment of the tenant, bargain and sell

(2) If the bargainor may lawfully transfer the property, but not otherwise; for if there be tenant for life, with contingent remainder thereon depending, it seems a bargain and sale by him in fee does not destroy the contingent remainder; for it is the nature of a bargain and sale to pass no more than a man lawfully may pass; therefore, in the case now put, nothing more passes than the estate for life of the bargainor; so that the same estate continues in the bargainee, and is not destroyed or determined. Fearne, 246. Vide Law of Uses and Trusts, 140.

4. Of what things

or not.

the reversion to B., that B. cannot distrain for this
rent until he can get an attornment of the tenant;
yet the bargainee shall have benefit of a condition
as an assignee within the statute of 32 H. 8. And
it seems he may vouch by force of a warranty an-
nexed to the estate of the land, because he is in
partly in the per, [viz. the act of the bargainor,]
and partly in the post (3), [i. e. by the act of law,
the statute of Uses. The necessity of attornment
is now superseded by the statute of 4 & 5 Ann,
c. 16, for the amendment of the law. Many of the
dicta on bargains and sales, and their operation, will
be reconciled by considering the law to be, that the
bargain and sale as such, cannot, after the end of
six months, or even during the six months, be
given in evidence or pleaded, unless it has been
inrolled within the six months.]

All things, for the most part, that are grantable SeeWest. Symb

abargain and sale by any other way from one man to another, are grantable, and may be transferred by way of bargain and sale from one to another. And therefore lands, rents, advowsons, commons, tithes, profits of courts, and the like, may be granted by way of bargain and sale in fee simple, fee tail, for life, or years. And all manner of goods and chattels, as leases for years, wardships, cattle, corn, housholdstuff, wood, trees, merchandises, and the like, are grantable by way of bargain and sale (4). But it seems estovers, and such like things, [created] de novo, and that have not essence before, [et quæ in

6 Jac. B. R. Adjudged 21 H. 6. 43. per Yelverton.

ipso usu consumuntur,] are not grantable by way

tit. Bargain and

(3) It is said that a bargain and sale is not so strong a conveyance as a [feoffment with] livery; for if I have a rent-charge in right of my wife out of the manor of D. and afterwards I purchase the manor, and afterwards by deed indented and enrolled I bargain and sell the manor, the rent-charge shall not pass. 1 Leon. 6. [It is apprehended the rent would be suspended during the coverture at least; and if the husband was entitled to his courtesy, then during his life.] By feoffment or fine all uses and possibilities are conveyed, [or rather extinguished,] by reason of the forcible operation, but it is otherwise by bargain and sale. See 1 Leon. 33. The bargain and sale vests the use, and the statute of Uses the possession, (viz. seisin.] Cro. Jac. 696. A bargain and sale does not pass away nor affect a contingent use in the bargainor; but a feoffment or fine would transfer it, [read, extinguish it; and, under particular circumstances, the bargain and sale might be construed a release, and contingent interests may be released. Though a fine, which extends to the fee, will extinguish a contingent interest by estoppel, yet a fine, sur concessit for years, will operate only as an estoppel during the term, without extinguishing the contingent interest. Weale v. Lower, Poll. 55.] Hardr. 416. See more amply as to the operation of a bargain and sale, 1 Wood, 651. Com. Dig. Bar gain and Sale (B.3.) 2 Bl. Com. 338. Vin. Abr. Deeds (A.)

(4) As to bargains and sales of goods and chattles, see Com. Dig. Bargain and Sale (A). Biens (D. 3.) Grants (C.)