10. Assign w.ent. ticular 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 afterward. 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 estate, any further 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 interest less than his [327] 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." y Litt., § 460. lessor accepts a surrender of the mesne lease, he loses all his remedies upon the covenants. (Moor, 94; 3 T. R., 393 678.) (63) 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 (63) This is far from being universally is a surrender in law, being an implied true; for there is a variety of distinctions abandonment of the former term. (5 when the assignee is bound by the cov. Co., 11; 2 Prest., Conv., 138; 1 Per. & enants of the assignor, and when he is Dav., 440; 2 Mee. & W., 882.) And not. The general rule is, that he is an agreement between the lessor and bound by all covenants which run with the assignee of the term, whereby the the land; but not by collateral coveformer agreed to pay an annual sum over and above the rent toward 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. & Al., 119.)-[CHITTY.] nants which do not run with the land. As if a lessee covenants for himself, his 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 (64) If the land is transferred for the lessee covenants for himself, his execu entire residue of the term, it is an as- tors and administrators, to reside upon signment, although the assignor may the premises, this covenant binds his as have used words of demise, and, by re- signee, for it runs with, or is appurtenserving rent or otherwise, have endeavy- ant to, the thing demised. (2 Hen. Bl., ored to preserve a reversion in himself; 133.) The assignee in no case is bound as, on the other hand, an "assignment" by the covenant of the lessee to build a for a portion of the term, less by only house for the lessor any where off the one day than the residue, is an under- premises, or to pay money to a stranger. lease. (3 Bligh, 31; Dougl., 178; 3 (5 Co., 16.) The assignee is not bound Scott, N. R., 593.) The important dis- by a covenant broken before assignment. tinction in practice between an assign- (3 Burr., 1271; see Com. Dig., Cove ment and an under-lease is, that an un- nant.) But if an under-lease is made, der-lessee is not liable, as an assignee even for a day less than the whole term, is, to be sued by the original lessor, upon the under-lessee is not liable for rent or the reservations or covenants contained covenants to the original lessee, like an 'n the original lease. (Dougl., 183.) assignee of the whole term. (Dougl. And if, after an under-lease, the original 56, 174, 183.) ance. 11. A defeasance is a collateral deed, made at the same 11. Defeastime with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeatedz 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 defeasance, whereby the 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 ancient law,a and therefore only indulged; no subsequent secret revocation of a solemn conveyance, executed by livery of seizin, being allowed in those days of simplicity and truth; though, when uses were afterward introduced, a revocation of such uses was permitted by the courts of equity. But things that were Defeasance merely executory, or to be completed by matter subsequent (as rents, of which no seizin could be had till the time of payment; and so also annuities, conditions, warranties, and the like), were always liable to be recalled by defeasances made subsequent to the time of their creation.be" II. There yet remain to be spoken of some few conveyances which have their force and operation by virtue of the Statute of Uses.† z From the French verb defaire, infectum reddere. An assignee is liable for rent only while he continues in possession under the assignment. (2 Cr., M. & R., 18.) 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.)-[CHRISTIAN.] The same principle prevails in equity. (2 Vern., 103; 8 Ves., 95; 1 Sch. & Lef., 310; 4 Myl. & Cr., 534.) But the assignee's liability commences upon acceptance of the lease, though he never enter (1 B. & B., 238); and he is discharged, in respect of all subsequent breaches, by assigning over, although his assignee never enter. (3 Doug., 19.) The lessee remains liable upon his covenants notwithstanding assignment, but he is considered as a surety merely for the assignee, who is bound to indemnify him from any loss, so long as he remains assignee, but not afterward, unless he a Co. Litt., 236. has expressly covenanted to do so. (3 (64) See 2 B. & Cr., 179; 6 Taunt., A defeasance must be by matter as high as the instrument to be defeated, so that a bond or covenant can not be defeated at law by writing unsealed (Cr. El., 697; 5 B. & Al., 187); although such an agreement might be enforced in equity (1 Russ. & M., 178); and, if executed, might even operate at law as an accord and satisfaction, satisfying, not defeating, the obligation. (3 T. R., 599; 1 East, 619.) * If there be a defeasance to a conveyance of real estate, by which it appears that the conveyance, though absolute in terms, was intended as a security, in the nature of a mortgage, it must be recorded, or the person for whose benefit the conveyance was made derives no advantage from the recording of the conveyance. (1 R. S., 756, § 3.) See post, p. 338, n. *. subsequent 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. But the fidei-commissum, which usually was created by will, was the [328] disposal of an inheritance to one, in confidence 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 prætor fideicommissarius, instituted by Augustus, to enforce the observance of this confidence. 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 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. Introduced Statute of This notion was transplanted into England from the civil to evade the law about the close of Edward III.,g by means of the foreign Mortmain. 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 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 | 329] own use, and so was possessed of the use only, such use was devisable by will. But we have seen 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 afterward 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, and permitted the owner of lands in his lifetime 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, there are not six cases to be found relating to the doctrine of uses), the courts of equity began to reduce them to something of a regular system. uses. Originally it was held that the Chancery could give no re- Doctrine of lief but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI., with respect to the heir; and afterward the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use.m But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And, also, it was held that neither the king or queen, on account of their dignity royal," nor any corporation aggregate, on account of its [330 ] limited capacity, could be seized to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust. And if the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the courtesy, nor the wife to whom dower was assigned, were liable to perform the use ;P because they were not parties to the trust, but came in by act of law; though doubtless their title in reason was no better than that of the heir. On the other hand, the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use whereof the use is inseparable from the possession;" as annu Descendible. ities, ways, commons, and authorities quæ ipso usu consumuntur,a or whereof the seizin could not be instantly given.r" 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another, without any consideration, equity presumes that he meant it to the use of himself, unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions. But, if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration." 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession;w for in this and many other respects æquitas sequitur legem, and can not establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties, or be devised by last will and testament; for, as the legal estate in the soil was not trans[331] ferred by these transactions, no livery of seizin was necessary; and as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not, at common law, aliene the legal interest of the lands without the concurrence of his feoffee ;z to whom he was accounted by law to be only tenant at sufferance.a feudal bur. were not liable to any of the feodal burdens; and, particularly, did not escheat for felony or other defect of blood; for escheats, &c., are the consequence of tenure, and uses are held of nobody; but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use. 6. No wife could be endowed, or husband have his courtesy of a use,c7 for no trust was declared for their benefit at the original grant of the estate. And, therefore, it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives, which was the original of modern jointures.d 7. A use could not be extended by writ of Uses not subject to dens. q 1 Jon., 127. r Cro. Eliz., 401. See page 296. t 1 And., 37. u Moor., 684. w 2 Roll. Abr., 780. and the benefit were all one; no person (66) That is to say, where the estate y Ibid., 308. z Stat. 1 Ric. III., c. 1. a Bro. Abr., ibid., 23. b Jenk., 190. 5. Uses c4 Rep., 1. 2 And., 75. present existence, as if a man should bargain and sell lands which should hereafter descend to him. (67) Courts of equity, however, began very early to allow the husband his courtesy out of his wife's equitable in heritances. Ante, p. 127, n. |