is the falling of a less estate into a greater (32) 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 surren"dered, granted, and yielded up (33)." The surrenderor must be in possession (u); and the surrenderee must have a higher estate (34), 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 relessor, 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 es (t) Co. Litt. 337. (u) Ibid. 338. (32) This may be effected either by a surrender in fact, (as defined in the text), or by a surrender in law, by the acceptance of an estate inconsistent with a prior estate. Thus, if a valid new lease be made to a person in possession under an old lease, this will, without any actual surrender, operate as a surrender in law of the old lease. (Shep. Touch. 300. Ive's case, 5 Rep. 116. Fulmerston v. Steward, 1 Plowd. 108. S. C. Dyer, 103 a. Willis v. Whitewood, 1 Leon. 322). (33) Mere cancellation will not amount to a surrender, either in fact or (w) Perk. s. 589. in law, of a lease: (M'Gennis v. MасCullock, Gilb. Equ. Rep. 236): for, the cancelling of an instrument does not re-vest the interest which it conveyed. Doe v. Bingham, 4 Barn. & Ald. 677). (34) This is not quite accurate, if it be good law (as appears to be settled) that one termor may surrender to another; and that such surrender will be good, though the term of the surrenderor is longer than the term of the surrenderee. (Hughes v. Robotham, Cro. Eliz. 303). 10. Assignment. tate, any farther delivery of possession would be vain and nugatory (y). 10. An assignment 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 for life or years. And it differs from a lease only in this: that by a lease one grants an in[*327] terest 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 assignort. 11. Defeazance. 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 (z) 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 (y) Litt. s. 460. (z) From the French verb defaire, infectum reddere. not. + Mr. Christian observes, that "this is far from being universally true; for there is a great variety of distinctions when the assignee is bound by the covenants of the assignor, and when he is 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, in that case, 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. (Spencer's case, 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. (Doug. 174). 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). feoffment was rendered void on repayment 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 antient law (a); and therefore only indulged (35); 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 (6). ances that oper II. There yet remain to be spoken of some few convey- II. Of conveyances, which have their force and operation by virtue of the statute of uses. ate by virtue of the stat. of uses. of the nature of uses and trusts. Uses and trusts are, in their original, of a nature very similar, or rather exactly the same: answering more to the fideicommissum 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 that he *should convey it, or dispose of the ( *328 ] profits, at the will of another. And it was the business of a particular magistrate, the prætor 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 (a) Co. Litt. 236. (b) Ibid. 237. (35) A defeazance is now seldom resorted to, as it is a much preferable course to make the conditions apparent in the deed itself, so that the complete (c) f. 7. 1. 1. nature of the transaction may appear As to defeazances of bonds, or judg- Their first introduction into our law. 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 curtesy, for which the remedy was only by intreaty 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 A. 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 (36). 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 their religious houses directly, but to the use of the religious houses (h): which the clerical chancellors of those (e) Ff. 43. 26. 1. Bacon on Uses, 8vo. 306. (f) Plowd. 352. (g) Stat. 50 Edw. III. c. 6. 1 Ric. II. c. 9. 1 Rep. 139. (h) See pag. 271. (36) Uses evaded, without overturning, the common law. The estate was regularly transferred by a common law conveyance to some person as a trustee, and he, at law, was the absolute owner of the property; so much so, that the real owner would have been deemed a trespasser had he entered without the authority, express or implied, of the legal tenant. But, in equity, the legal tenant and his heirs were by degrees considered the mere nominees of the person by whom the estate was conveyed, and were deemed bound to execute all his directions in regard to the estate. After the relation of trustee and cestui que use was thus established, all the refinements which we now meet with in settlements of real property, soon became established in equity. (Sugden's Introduc. to Gilb. on Uses and Trusts). times held to be fidei-commissa, and binding in conscience; and therefore assumed the jurisdiction which Augustus had vested in his prætor, of compelling the execution 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 testator had enfeoffed another to his own use, and so was *possessed of the use only, such use was devisable by will. But we have seen (i) how this evasion was crushed in its infancy, by statute 15 Ric. II. c. 5, with respect to religious houses. Yet, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will (37), and permitted the owner of lands in his life-time to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till, at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal; through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore, about the reign of Edw. IV., (before whose time, lord Bacon remarks (k), there are not six cases to be found relating to the doctrine of uses), [*329 ] Their establishment by the courts of equity. (37) For, the will of cestui que use affected only the equitable right to the land, which was not subject to the feudal rule of law; and it was thought reasonable, upon a distinction started between the land and the use of the and, that the cestui que use might dis- |