gainee; and then the statute of uses completes the purchase (l); or, as it hath been well expressed (m), the bargain first vests the use, and then the statute vests the possession. But, as it was foreseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted, in the same session of parliament, by statute 27 Hen VIII. c. 16, that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminsterhall or with the custos rotulorum of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious, till about six years before (n); which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible it is to *foresee, [ *339 ] and provide against, all the consequences of innovations! This omission has given rise to

14. A fourteenth species of conveyance, viz. by lease and 14. Lease and release; first invented by Serjeant Moore (49), soon after release. the statute of uses, and now the most common of any, and

(1) Bacon, Use of the Law, 150.

(49) Chief Justice North, (in Barker v. Keat, 2 Mod. 251), intimates, that, at common law, and before the statute of uses, when an inheritance was to be granted, a lease for years was usually made, and the lessee entered, and then the lessor released to him, and this was good. After the statute of uses, it became an opinion, that, if a lease for years was made upon a valuable consideration, a release might operate upon that without an actual entry of the lessee, because the statute did execute the lease, and raised a use presently to the

(m) Cro. Jac. 696. (n) See pag. 142.

lessee. Sir Francis Moore was the first
who practised this way. But, because
there were some opinions that, where
conveyances may enure two ways, the
common law shall be preferred, unless
it appear that the party intended it
should pass by the statute, thereupon
the usual course was to put the words
"bargain and sale" into the lease for a
year, to bring it within the statute, and
to allege that the lease was made to
the intent and purpose that, by the sta-
tute of uses, the lessee might be capable
of a release.

15. Deeds to lead or declare uses.

16. Deeds of revocation of uses.

[*340]

Of deeds to charge or discharge lands.

therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy, Attorney-General to Charles I.) have formerly doubted its validity (o). It is thus contrived: A lease, or rather bargain and sale, upon some pecuniary 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. He therefore being thus in possession, is capable of receiving a release of the freehold and reversion; which, we have seen before (p), must be made to a tenant in possession: and, accordingly, the next day, a release is granted to him (g). 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 (r).

15. To these may be added deeds to lead or declare the uses (50) of other more direct conveyances, as feoffiments, fines, and recoveries; of which we shall speak in the next chapter: and

16. Deeds of revocation of uses, hinted at in a former page (s), and founded in a previous power, reserved at the raising of the uses (t), to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation (u). And this may suffice for a specimen of conveyances founded upon the statute of uses: and will finish our observations upon such deeds as serve to transfer real property.

*Before we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or incumber, lands, and to discharge them again:

(0) 2 Mod. 252.

(p) Pag. 324.

(q) See Appendix, No. II. s. 1, 2.

(r) Co. Litt. 270. Cro. Jac. 604.

(s) Pag. 335.

(t) See Appendix, No. II. pag. xi. (u) Co. Litt. 237.

(50) See ante, note (13) to this chapter.

of which nature are, obligations or bonds, recognizances, and defeazances upon them both.

1. An obligation or bond, is a deed (v) whereby the ob- 1. Obligations. ligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio: but there is generally a condition added, that, if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as, payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute, at law, and charges the obligor, while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the landst. How it affects the personal property of the obligor, will be more properly considered hereafter.

its condition may be avoided.

If the condition of a bond be impossible at the time of How a bond or making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single, and unconditional: for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If

(v) See Appendix, No. III. pag. xiii.

+ Mr. Christian observes, that "if in a bond the obligor binds himself, with out adding his heirs, executors, and administrators, the executors and administrators are bound, but not the heir. (Shep. Touch. 369). A bond does not seem properly to be called an incumbrance upon land; for it does not follow the land like a recognizance and a

judgment; and if the heir at law alienes
the land, the obligee in the bond, by
which the heir is bound, can have his
remedy only against the person of the
heir to the amount of the value of the
land; but he cannot follow it when it
is in the possession of a bona fide pur-
chasor. (Bull. N. P. 175)."

it be to do a thing that is malum in se, the obligation itself is void (51): for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And

if the condition be possible at the time of making it, and af[ *341) terwards *becomes impossible, by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved; for no prudence or foresight of the obligor could guard against such a contingency (w). On the forfeiture of a bond, or its becoming single, the whole penalty was formerly recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon nonperformance of covenants; and the like. And the like practice having gained some footing in the courts of law (x), the statute 4 & 5 Ann. c. 16, at length enacted, in the same

(w) Co. Litt. 206. (x) 2 Keb. 553.555. Salk. 596,597. 6 Mod. 11. 60.101.

(51) As a general rule, a deed pro turpi causâ cannot be supported in equity; (see, however, Casey v. Stafford, 3 Swanst. 429); nor, if the consideration appears on the face of the deed, at common law. (Walker v. Perkins, 3 Burr. 1569. Gray v. Mathias, 5 Ves. 293. Franco v. Bolton, 3 Ves. 371). But, except in behalf of creditors, (Mortimer v. Davies, cited in 10 Ves. 363), property of which a woman has obtained actual possession, will not be taken out of her hands; though, (even in favor of the grantor's representatives), she might be restrained from bringing an action to enforce securities, founded only on an immoral consideration: (Rider v. Kidder, 10 Ves. 366. Whaley v. Norton, 1 Vern. 483): a fortiori she could not maintain an action upon, or obtain specific performance of, a written promise for which the only consideration

was a previous adulterous intercourse
or concubinage. (Matthews v. L-e,
1 Mad. 565. Binnington v. Wallace,
4 Barn. & Ald. 652. See, however,
Gibson v. Dickie, 3 Mau. & Sel. 461).
But, where a bond, or other deed, is
executed, not as a bargain for future
immorality, but as the præmium pudi-
citiæ, courts of equity will lend their
assistance to enforce the security.
(Knye v. Moore, 1 Sim. & Stu. 65; S. C.
2 Sim. & Stu. 260. Spicer v. Hayward,
Prec. in Cha. 115. Cray v. Rooke, Ca.
temp. Talb. 155. Marchioness of An-
nandale v. Harris, 2 P. Wms. 433).
A bond, however, though given as the
præmium pudicitiæ, cannot be proved
as a debt, should the obligor become
bankrupt. (Gilham v. Loeke, 9 Ves.
614. Ex parte Ward, cited 15 Ves.
290.
Turner v. Vaughan, 2 Wils.
340).

spirit of equity, that, in case of a bond conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge (52).

zances.

2. A recognizance is an obligation of record, which a man 2. Recognienters into before some court of record, or magistrate duly authorized (y), with condition to do some particular act; as, to appear at the assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond: the difference being chiefly this, that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record; the form whereof is,

(y) Bro. Abr. tit. Recognizance, 24.