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a transfer the feoffee took presumptively the freehold (liberum tenementum) of the land, for the reason which Blackstone has stated in another work: "since no one at common law was said to have or to be in possession of land, unless it were conveyed to him by the livery of seisin, which gave him the corporal investiture and bodily occupation thereof; and this ceremony of delivering seisin could not convey a less interest than for term of life. For as it is observed by St. Germain (Dr. & Stud. dial. 2, c. 22) 'the possession of the land is after the law of England called the franktenement or freehold.'" (Blackstone, Law Tracts, i, 140.) Therefore, as Blackstone says in the same place, he that enjoys an estate for years is not said to be possessed of the land, but only of his term of years. (Blackstone, Law Tracts, i, 140.) The termor's possession of the land in fact enables him to transfer it in fact to another person, but that transfer will not make the new possessor a termor. It is not an assignment of the term, for that must be effected in a different mode.
There is indeed an anomaly here, in allowing a freehold even "by wrong" to be given by the feoffment of one who has not a freehold himself: seisin to be given by one who has never received it. We find a similar anomaly in other rules respecting the termor's estate. He cannot take seisin himself, yet may take it for the benefit of the next estate of freehold and this estate of freehold will be immediately created and vested in the freehold tenant during the continuance of the term, and yet will be treated for many purposes as a remainder after the term. (2 Com. 164, 166.) The only explanation of these anomalies is to be found in the fact that seisin originally meant possession as an actual fact, and of chattels as well as land: and that the feoffment was at first the actual transfer of possession of the land itself, without reference to any "estate." When seisin
afterward became a technical term for possession of certain kinds of estate only, it was too late to change the legal phraseology which had become fixed by usage. (See also note 36 a, ante, page 292.)
(59) It must be either for twenty-one years or three lives, page 319.
The limitation of leases of church lands to three lives (illustrated so fully by the examples of Archbishop Oswald's leases in Kemble and Thorpe), no doubt had its origin in the law of Justinian. (Nov. vii. c. 3, 23, 3.) But this cannot be taken as evidence of the general use or knowledge of that law among the Anglo-Saxons. As a matter of general interest to the church, the rule would be made known by its canons to every bishop who recognized a submission to the Roman church.
(60) Such release is void for want of possession in the relessee, page 324.
This has been criticised, by Mr. Sweet and others, as not accurately expressed. The examples given are those of other releases, such as those which pass an estate, pass the right, etc., where Blackstone says nothing of possession; or by saying that tenant at will may take a release, as if Blackstone had required seisin and not possession.
It is conceived that this rule is still in force, although many of our American books speak of land as passing by quit claims (which is only another name for release) to one who had no interest or possession before. The explanation is that the term "quit-claim deed" is very commonly used, even by lawyers and judges, for a simple deed of conveyance without covenants, as opposed to a warranty deed, or to a deed with covenants against grantor. Such deeds pass the land and its legal possession by virtue of the granting words in them they do not merely "remise, release, and quit
claim," which presupposes possession in the grantee. If a deed in the later 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" 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 feoff ment, 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, § ), 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. ... bargain 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.