claim," which presupposes possession in the grantee, If a deed in the latter form be held to pass the title, it can only be by virtue of that loose construction which disregards all words and rules, in order to carry out the understood intention of the parties. Such "equitable constructions 99 are denials of right, not to the parties themselves, but to the countless unborn litigants whose rights will be taken away or squandered in useless litigation by reason of the precedents thus created. In some cases we find judges already applying to simple deeds of conveyance rules of law that belong only to releases proper, because of this misuse of the term "quit claim." (See cases collected in Boone on Real Property, 2 324, notes 7, 8.)

(61) By a lease one grants an interest less than his own, reserving to himself a reversion: in an assignment he parts with the whole property, page 327.

The same distinction in the transfer of leasehold estates makes the essential difference between subletting and assignment. Whatever name the original lessee may give the transfer, it will constitute a subtenancy or underlease, if it does not pass the entire remnant of the term: an assignment if it does.

It hardly needs to be pointed out that when fees were actually estates dependent on the survival of a given line of heirs, i. e., before the statute of quia emptores, the same distinction marked the difference of subinfeudation and alienation, commonly treated as two entirely distinct transactions.

(62) No subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth, page 327.

It was not the "solemnity" of the act, or the simplicity and truth of the actors, that made the distinction, but the very nature of the feoffment as a transfer

2 BLACKST. -45.

of the land itself, and not of a mere estate in it. The land having actually passed by the feoffment, no defeasance or other agreement between the parties could change the effect of this transfer. But when a use was created, it might be subsequently revoked or modified, and so of all instruments that merely transferred an estate in the land and not the land itself. Coke has well explained this by calling the feoff ment an executed conveyance. (Co. Litt. 204 a.) For the same reason, apparently, if a feoffment be made, or a fine be levied, or recovery be suffered, without consideration, and no uses be expressed, the use results to the feoffor and his heirs. But if any uses be expressed, it shall be to those uses, though no consideration be had; and herein is the difference between raising uses by fine, feoffment, or other conveyance operating by transmutation of possession and uses raised by covenant; for, upon the first, if no uses were expressed, it is equity that assigns the feoffor to have the resulting use; by the law, the feoffor has parted with all his interest (see Cave v. Holford, 3 Ves. 667), but where he expresses uses there can be no equity in giving him the use against his own will. (See Gilbert on Uses, ch. 222.) On the other hand, in case of a covenant there can be no use without a consideration; for the covenantee in such case can have no right by law, and there is no reason why equity should give him the use. (And see Calthrop's Case, Moor, 101; Stephen's Case, 1 Leon, 138; Jenkins' Case, Cent. 6, 36.) Perhaps no better illustration of this difference between the operation of a feoffment and that of the conveyance of a use can be given, than the well-known rule that a feoffment to a man and his intended wife before marriage will give the entire land to the husband alone, while the conveyance to the use of him and his intended wife will operate in favor of both of them.

(63) Except such as arise from implication or construction of law, page 337.

"Result from implication or construction of law" is the exact language of the statute ( 29 Car. II. c. 3, 2 8 ), and this is worth observation, because from these three words of a single exception have been formed the three great classes of trusts not necessary to be declared in writing, viz., implied trusts, resulting trusts, constructive trusts. As might be expected, the bounds between them are not easily fixed.

(64) Covenant to stand seised to uses and sale, page 338.

These two forms of conveyance are in fact one, the difference of operation depending on the parties to it, not on the name or language employed. Whether it be called covenant, etc., or bargain and sale, it will operate alike: on a valuable consideration between strangers, on that of love and affection among near kindred. In either case the instrument merely raises the use and the statute transfers the land.

(65) Lease and release, first invented by Serjeant Moore, soon after the statute of uses, page 339.

The word "invented" is hardly applicable here, for conveyance by lease and release was known before the statute of uses, and was said on good authority to be equivalent to a feoffment, contrevaut un feffement.

It must have had an early origin, at a time when the "seisin" of a lessee for years was not so sharply distinguished from that of a freeholder as it subsequently was. It may very probably have gone out of use when *he lease was no longer regarded as giving seisin, and its "invention," perhaps, consisted in seeing that the statute of uses cured the objection and restored it to its original force.

CHAPTER THE TWENTY-FIRST.

OF ALIENATION BY MATTER OF RECORD.

*Assurances by matter of record are such as do not entirely depend on the act or consent of the parties themselves: but the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of, the transfer of property from one man to another; or of it's establishment, when already transferred. Of this nature are, 1. Private acts of parliament.* 2. The king's grants. 3. Fines. 4. Common recoveries.

I. Private acts of parliament are, especially of late years, become a very common mode of assurance. ¡See note 66, page 556.] For fit may sometimes happen, that by the ingenuity of some, and the blunders of other practitioners, an estate is most grievously entangled by a multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances (a confusion unknown to the simple conveyances of the common law); so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that by the strictness or omission of family settlements, the tenant of the estate is abridged of some reasonable power (as letting leases, making a jointure for a wife, or the like), which power cannot be given him by the ordinary judges either in common law or equity. Or it may be necessary, in settling an estate, to secure it against the claims of infants or other persons under legal disabilities; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of 1345] the like kind, the tran

*-* Quoted, 8 How. 538.

scendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate; to give it's tenant reasonable powers; or to assure it to a purchasor, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred.* This practice was carried to a great length in the year succeeding the restoration; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses it, every man had raised an equity in his own imagination, that he thought was intitled to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king at the close of the session to remark, that the good old rules of law are the best security; and to wish, that men might not have too much cause to fear, that the settlements which they make of their estates shall be too easily unsettled when they are dead, by the power of parliament.

8

I Acts of this kind are however at present carried on, in both houses, with great deliberation and caution; particularly in the house of lords they are usually referred to two judges to examine and report the facts alleged, and to settle all technical forms. Nothing also is done without the consent, expressly given, of all parties in being and capable of consent, that have the remotest interest in the matter; unless such consent shall appear to be perversely and without any reason withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act

a Lord Clar. Contin. 162.

b Ibid. 163.

8 Previously, ought.'

- Quoted, 15 Wend. 440. 2-2 Quoted, 5 Wall. 286.