the benefit of the successor only; and no man shall make an advantage of his own wrong. (w) There is yet another restriction with regard to college leases, by statute 18. Eliz. c. 6. which directs, that one-third of the old rent, then paid, should for the future be reserved in wheat or malt, reserving a quar- [322] ter of wheat for each 6s. 8d., or a quarter of malt for every 5s.; or that the lessees should pay for the same according to the price that wheat and malt should be sold for, in the market next adjoining to the respective colleges on the market day before the rent becomes due. This is said (x) to have been an invention of lord treasurer Burleigh, and sir Thomas Smith, then principal secretary of state; who observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the new-found Indies (which effects were likely to increase to a greater degree), devised this method for upholding the revenues of colleges. Their foresight and penetration has in this respect been very apparent for, though the rent so reserved in corn was at first but onethird of the old rent, or half what was still reserved in money, yet now the proportion is nearly inverted: and the money arising from corn rents is, communibus annis, almost double to the rents reserved in money." The leases of beneficed clergymen are farther restrained, in case of their non-residence, by statutes 13 Eliz. c. 20., 14 Eliz. c. 11., and 18 Eliz. c. 11., and 43 Eliz. c. 9.,42 which direct, that if any beneficial clergyman be absent from his cure above fourscore days in any one year, he shall not only forfeit one year's profit of his benefice, to be distributed among the poor of the parish; but that all leases made by him, of the profits of such benefice, and all covenants and agreements of like nature, shall cease and be void: 43 except in the case of licensed pluralists, who are allowed to demise the living, on which they are non-resident, to their curates only; provided such curates do not absent themselves above forty days in [323] any one year. And thus much for leases, with their several enlargements and restrictions. (y) 5. An exchange is a mutual grant of equal interests, the one in consideration of the other." The word "exchange," is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word, or expressed by any circumlocution. (z) The estates exchanged must be equal in quantity; (a) not of value, for that is immaterial, but of w lbid. 45. x Strype's Annals of Eliz. y For the other learning relating to leases, which is very curious and diffusive, I must refer the student to S Bac. abridg. 295. (title, leases and terms for years), where the subject is treated in a perspicuous and masterly manner; being supposed to be extracted from a manuscript of sir Geoffrey Gilbert. z Co. Litt. 50, 51. a Litt. 64, 65. (41) The colleges receiving a quarter of wheat, or its value, for every 13s. 4d. which they are paid in money, the corn rent, from the present price of wheat, will be in proportion to the money rent as four to one. But both these rents united are very far from the present value. Colleges therefore, in order to obtain the full value of the term, take a fine upon the renewal of their leases. Christian. (42) These statutes were repealed by the 43 Geo. III. c. 84., and further amendments were made by the temporary statutes 54 Geo. III. c. 54. & 175. But the residence of spiritual persons is now regulated by the 57 Geo. III. c. 99., which repealed all former acts on this subject. For the regulations of this statute, see ante, vol. 1. p. 392. n. 36. By the 62d section of the statute, all contracts or agreements for letting houses of residence, or the buildings, gardens, orchards, and appurtenances, necessary for the convenient occupation of the same, belonging to any benefice, and in which spiritual persons are by the order of the bishop to reside, are void; and persons holding possession thereof after the day such spiritual persons are directed to reside, upon notice to that effect, forfeit 40s. for every day they so hold over. (43) But by the 57 Geo. III. c. 99. all these statutes which vacate leases by non-residence are repealed. (44) See in general, Com. Dig. Exchange; Vin. Ab. Exchange. 45 interest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like. And the exchange may be of things that lie either in grant or in livery. (b) But no livery of seisin, even in exchanges of freehold, is necessary to perfect the conveyance: (c) for each party stands in the place of the other, and occupies his right, and each of them hath already had corporal possession of his own land. But entry must be made on both sides; for, if either party die before entry, the exchange is void, for want of sufficient notoriety. (d) And so also, if two parsons, by consent of patron and ordinary, exchange their preferments; and the one is presented, instituted, and inducted, and the other is presented, and instituted, but dies before induction; the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his own. (e) For if, after an exchange of lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other's title; he shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges. (f) 6. A partition is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the lands so held among them in seve[324] ralty, each taking a distinct part. Here, as in some instances there is a unity of interest and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates which they are to take and enjoy separately. 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 conveyance must have been perfected by livery of seisin. (g) And the statutes of 31 Hen. VIII. c. 1. and 32 Hen. VIII. c. 32. made no alteration in this point. But the statute of frauds, 20 Car. II. c. 2. hath now abolished this distinction, and made a deed in all cases necessary. 46 These are the several species of primary or original conveyances. Those which remain are of 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. As, 7. Releases; 47 which are a discharge or a conveyance of a man's right in lands or tenements, to another that hath some former estate in possession. The words generally used therein are "remised, released, and for ever quit-claimed." (h) And these releases may enure either, 1. By way of enlarging an estate, or enlarger l'estate: as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee. (i) But in this case the relessee must be in possession of some estate, for the release to 48 b Co Litt. § 51. c Litt. § 62. f pag. 300. b Litt. & 445. d Co. Litt. 50. (45) On this account an exchange by lease and release is to be preferred, for in that case the statute executes the possession instantly, upon execution of the deeds. Butler's note to Co. Litt. 271. b. n. 1. Archbold. (46) Each joint-tenant being already seised of the whole (Co. Litt. 200. b.) livery of seisin cannot be necessary in this case. (47) 4 Cruise Dig. 143. (48) But this must be the immediate remainder or reversion, for if A. have a terins for years, remainder to B. for years, remainder or reversion in fee to C., C. cannot release to A. for want of privity, on account of the intermediate term in B. Co. Litt. 273. b. Archbold. work upon; for if there be lessee for years, and before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void for want of possession in the relessee. (k) 2. By way 49 of passing an estate, or mitter l'estate: as when one of two copar- [325] ceners releaseth all her right to the other, this passeth the fee-simple 50 of the whole. (1) And in both these cases there must be a privity of estate between the relessor and relessee; (m) that is, one of their estates must be so related to the other, as to make but one and the same estate in law. 3. By way of passing a right, or mitter le droit: as if a man be disseised, and releaseth to his disseisor all his right, hereby the disseisor acquires a new right, which changes the quality of his estate, and renders that lawful which before was tortious or wrongful. (n) 4. By way of extinguishment : as if my tenant for life makes a lease to A for life, remainder to B and his heirs, and I release to A; this extinguishes my right to the reversion, and shall enure to the advantage of B's remainder as well as of A's particular estate. (0) 5. By way of entry and feoffment: as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former companion; which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee. (p) And hereupon we may observe, that when a man has in himself the possession of lands, he must at the common law convey the freehold by feoffment and livery; which makes a notoriety in the country: but if a man has only a right or a future interest, he may convey that right or interest by a mere release to him that is in possession of the land for the occupancy of the relessee is a matter of sufficient notoriety already. : 8. A confirmation" is of a nature nearly allied to a release. Sir Edward Coke defines it (q) to be a conveyance of an estate or right in esse, whereby a voidable, 52 estate is made sure and unavoidable, or whereby a particular estate is increased: and the words of making it are these, "have given, "granted, ratified, approved, and confirmed." (r) An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term; here the lease for years is voidable by him in reversion : yet, if he hath confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure. (s) The [326] latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release, which operates by way of enlargement. 53 9. A surrender, sursumredditio, or rendering up, is of a nature direct k Litt. § 465. 1 Co. Litt. 273. m Co. Litt. 272, 273. n Litt. § 466. r Litt. § 515. 531. (49) If one joint-tenant assign to the other, it operates as a release, and must be so pleaded. 2 Cruise, 527. (50) There must be a privity of estate between the relessor and the relessee in the first species of release mentioned, (see ante); but in this release per mitter le droit, there is not or cannot be any such privity, (Co. Litt. 274. a. n. 1.) nor is there any occasion for words of inheritance. Litt. 470, and Co. Litt. 273. b. Archbold. (51) See in general, Com. Dig. tit. Confirmation. (52) The distinction between voidable and void must not be lost sight of here, for it has no operation whatever upon a void estate. Gilb. Ten. 75. Archbold. (53) See in general, Com. Dig. Surrender; 2 Saund.-index, Surrender. When a tenant for life and the remainderman in fee join in making a lease, it should not be pleaded as the lease of both in its inception, for living the tenant for life it is only his lease, and the confirmation of the remainderman's. 6 Co. 14. b. 15. a. Cases and opinions, 2 vol. 2. 148 edit. 1791. 80 VOL. I. 99 54 ly opposite to a release; for, as that operates by the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater. It is defined (t) a yielding up of an estate for life or years to him that hath the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words," hath surrendered, granted, and yielded up." The surren deror must be in possession; (u) and the surrenderee must have a higher estate, in which the estate surrendered may merge; therefore tenant for life cannot surrender to him in remainder for years. (w) In a surrender there is no occasion for livery of seisin; (x) for there is a privity of estate between the surrenderor and the surrenderee; the one's particular estate and the other's remainder are one and the same estate; and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes since the reversion of the lessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any farther delivery of possession would be vain and nugatory. (y) 55 10. An assignment 50 is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate [327] for life or years. And it differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor. " 11. A defeazance is a collateral deed, made 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 (2) or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void on repayu lbid. 338. w Perk. § 589. z From the French verb defaire, infectum reddere. t Co. Litt. 387. x Co. Litt. 50. y Litt. § 460. (54) But these words are not essential to a surrender. See Wils. 127. Cro. Jac. 169. (55) This is a surrender by deed, but there is also what is termed a surrender in law, as if a person who has a term for years, or an estate for life, accept a new lease incompatible with the interest granted by the former lease, this is a surrender in law, being a virtual surrender of the former term. 5 Co. 11. 2 Prest. Conv. 133. And an agreement between the lessor and the assignee of the term, whereby the former agreed to pay an annual sum over and above the rent, towards the premium paid by the assignee to the lessee, operates as a surrender of the whole term. 1 T. R. 441. See also 6 East, 86. 12 East, 134. 2 B. & A. 119. Archbold. (56) See in general, 4 Cruise D. 160. Com. Dig. Assignment. (57) This is not universally true; for there is a variety of distinctions when the assignee is bound by the covenants of the assignor, and when he is not. The general rule is, that he is bound by all covenants which run with the land; but not by collateral covenants which do not run with the land. As if a lessee covenants for himself, executors, and administrators, concerning a thing not in existence, as to build a wall upon the premises, the assignee will not be bound; but the assignee will be bound, if the lessee has covenanted for himself and assigns. Where the lessee covenants for himself, his executors and administrators, to reside upon the premises, this covenant binds his assignee, for it runs with, or is appurtenant to, the thing demised. 2 Hen. Bl. 133. The assignee in no case is bound by the covenant of the lessee, to build a house for the lessor any where off the premises, or to pay money to a stranger. 5 Co. 16. The assignee is not bound by a covenant broken before assignment. 3 Burr. 1271. See Com. Dig. Covenant. But if an underlease is made even for a day less than the whole term, the underlessee is not liable for rent or covenants to the original lessee, like an assignee of the whole term. Dougl. 183. 56. An assignee is liable for rent only whilst he continues in possession under the assignment. And he is held not to be guilty of a fraud, if he assigns even to a beggar, or to a person leaving the kingdom, provided the assignment be executed before his departure. 1 B. & P. 21. The same principle prevails in equity. See 2 Bridg. Eq. Dig. 138. 1 Vern. 87. 2 Vern. 103. 8 Ves. 95. 1 Sch. & Lefroy, 310. But the assignee's liability commences upon acceptance of the lease, though he never enter. 1 B. & B. 238. Christian ment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law; (a) and, therefore only, indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth; though, when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seisin could be had till the time of payment ;) and so also annuities, conditions, warranties, and the like, were always liable to be recalled by defeazances made subsequent to the time of their creation. (b) II. There yet remain to be spoken of some few conveyances, which have their force and operation by virtue of the statute of uses. 58 Uses and trusts are in their original of a nature very similar, or rather exactly the same: answering more to the fidei commissum than the usus fructus of the civil law: which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance. (c) But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence [328] that he should convey it or dispose of the profits at the will of another. And it was the business of a particular magistrate, the praetor fidei commissarius, instituted by Augustus, to enforce the observance of this confidence. (d) So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which there was a remedy in conscience; and jus precarium, a right in courtesy, for which the remedy was only by entreaty or request. (e) In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profits. (f) As, if a feoffment was made to and his heirs, to the use of (or in trust for) B. and his heirs; here at the common law A. the terre-tenant had the legal property and possession of the land, but B. the cestuy que use was in conscience and equity to have the profits and disposal of it. This notion was transplanted into England from the civil law, about the close of the reign of Edward III., (g) by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to religious houses directly, but to the use of the religious houses: (h) which the clerical chancellors of those times held to be fidei, commissa, and binding in conscience; and therefore assumed the jurisdic tion which Augustus had vested in his praetor, of compelling the execu tion of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet if a c Ff. 7. 1. 1. f Plowd. 352. d Inst. 2. tit. 23. b Ibid. 287. a Co. Litt. 236. (58) Sec ja general, Saunders on Uses and Trusts; and 2 Saunders Rep. index, Uses and Trusts. |