1 Co. Litt. 9. b.

332. b.

2 Mo. 496.

use the language of Lord Coke, "by the delivery of the deed the freehold and inheritance of such hereditaments doth pass1." Hence corporeal hereditaments, passing only by livery of seisin, were said to "lie in livery;" while incorporeal hereditaments, passing not by delivery of the possession, but by delivery of the deed of grant, were said to "lie in grant." Besides lands in possession, the former class also comprehends certain legal aggregates, of which land forms the most material part, as a manor, consisting of land and seignories, an advowson, consisting of land and tithes. With respect to these it seems, that, though the incorporeal part could only be conveyed separately by deed, yet, See Co. Litt. upon a feoffment of a manor or an advowson1 eo nomine, the incorporeal will not be severed from the corporeal part, and will pass in the absence of a clear intention to the contrary; and a feoffment of the whole, if not completed by livery of seisin, will not be allowed to operate partially as a grant2. Reversions and remainders in fee expectant upon an estate of freehold cannot be conveyed by feoffment, because it necessarily passes the previous estate of freehold, which would be incompatible with the design of an assurance of them; and, therefore, although they do not come within the description of incorporeal hereditaments, yet, nevertheless, "lie in grant;" but a reversion or remainder in fee, expectant upon a term of years only, may, with the consent of the 3 Co.Litt. 48.b., termor, be conveyed by feoffment 3, and may also be conveyed by grant, and must necessarily be so conveyed if the tenant of the preceding chattel interest refuse permission to the owner to go upon the land to deliver seisin. Hence, a remainder or reversion expectant upon a term of years may be said to lie both "in livery" and "in grant," though upon the whole it would seem to belong more properly to the class of hereditaments which range under the former division. To the perfection of the grant of a remainder or reversion, whether expectant upon a freehold or chattel interest, the attornment of the previous tenant was necessary at common law 4. This necessity arose out of the nature of the feudal obligation5 between the tenant and his immediate lord; and, as the same considerations applied to the grant of seignories and rents, attornment was also necessary in these cases to the validity of the grant, until the passing of the statute 4 Ann. c. 16, by which it was enacted, that "grants and conveyances by fine or otherwise any manors or rents, or of the reversion or remainder of any

52. a.

Litt. s. 567.

5 See Co. Litt. 309, n. (1).

of

messuages or lands, should be as good and effectual without any attornment of tenants, as if their attornment had been had and made1."

Besides these modes of conveying the freehold or inheritance in real estate, there were several other assurances at common law, suited for special occasions, or to the creation and transfer of chattel interests, namely, Exchange, Lease, Assignment, Surrender, and Release.

Exchange.]-In the particular cases to which this assurance applies, lands could be conveyed for an estate of freehold without livery of seisin or any thing tantamount to it, and for an estate of inheritance without the use of words of inheritance. This mode of assurance only applied to cases where the estates purposed to be exchanged were equal in quantity, and to its validity the word "exchange" was essential, and actual entry by each party; for if either died before entry, the exchange was void. Exchanges at the present day are always made by mutual conveyances, usually by lease and release; the exchange at common law being not only liable to become void by the failure of either party to enter, but subject also to this further inconvenience, that when the lands received under a common-law exchange come to be sold, the vendor is bound to shew a good title, not only to these lands, but also to the lands given in exchange for them2.

1 Ib. s. 9.

Bustard's Ca., 4 Co. 121.

Lease].-A lease was the proper common-law assurance for creating a term of years, in which sense only it is here used, though in the older writers it is frequently applied to estates for life. To the validity of a lease, so explained, livery of seisin was not necessary, nor writing, unless the demised tenement were incorporeal, or to be carved out of an estate in remainder or reversion; but, in order to perfect the demise, that is to say, of lands in possession, and vest the term in the tenant, actual entry was necessary; for until entry, the lessee had what the law calls an interesse termini, which only gave him "a right to have the land by force of the lease3." Upon this passage Lord Coke observes, Litt. s. 459. that this "is not to be understood that he hath but a mere naked right," for before entry he hath such an interest as is grantable; he can release the rent reserved in respect of the privity; he may enter notwithstanding the previous death of the lessor; and if he die himself before entry, his personal representatives may enter; but for want of an actual occupation he is not capable of a release

VOL. I.

'Co. Litt. 271.a. to enlarge his estate1, and until entry, the term does not become so completely severed from the inheritance, that the lessor can * Co. Litt. 47. a. grant away the reversion eo nomine2; in other words, until the lessee's entry, his interest did not amount to an estate, nor was the residue of the inheritance converted into a reversion*.

Assignment].-An assignment is the transfer or making over to another the estate or interest which the assignor has in lands or tenements, and is now commonly understood as applying to the transfer of a term of years. It differs from a lease in this,— that, by an assignment, the assignor parts with his whole interest and property in the thing assigned, and puts the assignee in his place; whereas, by a lease, the lessor parts with an interest less than his own, reserving to himself a reversion. It appears to have been decided in Poultney v. Holmes3, that where the lessee parts with the whole term, reserving the rent to himself, this would be, not an assignment, but an underlease. Such a decision is untenable on any intelligible ground of legal principle, and 1 Doug. 186 n. may be considered as being overruled by Palmer v. Edwards*. In this case, Buller, J., adverting to Poultney v. Holmes, said, "that case only determined that what cannot be supported as an assignment shall be good as an underlease against the party granting it5.

⚫ 1 Str. 405.

'Neale v. Wyllie, 3 Barn. & Cr. 533.

The technical words of an assignment are, "assign, transfer, and set over;" but the words, "give," "grant," "bargain and sell," or any others which clearly shew the intention of the parties to make a complete transfer, will amount to an assign

Mr. Hayes, in his Introduction to Conveyancing, (3rd ed. p. 320, n. 20), observes, that "an example of a lease operating exclusively and necessarily at common law cannot easily be given, for the rent reserved would be sufficient to raise a use, and make the instrument operate as a bargain and sale under the statute." This is not quite correct. Where an instrument is capable of operating either at common law or under the statute, the legal presumption, in the absence of any clear intention to the contrary, is, that it operates at common law. Upon

this principle it is, that, in the lease for a year, in the common assurance by lease and release, the habendum is to the bargainee, his executors, administrators, and assigns, "to the intent and purpose that by virtue of these presents, and by force of the statute made for transferring uses into possession, he may be in the actual possession of," &c. &c. Without this declaration the bargain and sale would operate at common law, and consequently the bargainee would be incapable without actual entry of a release by way of enlargement.

ment. At common law, when the estate could have been originally created by parol, the assignment might have been by parol only; but when, as in the case of an estate for life or years, in incorporeal hereditaments, the original estate could only have been created by deed, it must have been assigned by deed; and now, by the Statute of Frauds, "no leases, estates, or interest, either of freehold or term of years, or any uncertain interest in lands, shall be assigned unless by deed, or note in writing, signed by the party or his agent lawfully authorized by writing." An assignment is usually made by deed, but where before the statute the assignment might have been by parol, a mere memorandum signed would now be sufficient. It is usual also to express a pecuniary consideration; but in fact no consideration is necessary to support an assignment; for the tenure and attendance, and the being subject to forfeiture, are sufficient to vest the term in the assignee1.

1 Barker v. Keate, 1 Mod. 263.

618.

Surrender.]—A surrender is the yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder, wherein the estate for life or years may drown2. As 'Co.Litt. 337.b. there is necessarily privity of estate between the surrenderor and surrenderee, no livery of seisin was necessary to a perfect surrender. A surrender immediately divests the estate out of the surrenderor, and vests it in the surrenderee, for it is a conveyance at common law to which no other act is requisite but the bare grant3. Thompson v. Where the original estate was capable of being conveyed to a stran- Leach, 2 Salk. ger by parol, it could, of course, be surrendered by parol. Hence a surrender could be made of lands for a term of years in possession without livery or deed; but of estates in remainder or reversion, or of incorporeal hereditaments, a surrender could only be by deed. The same principle applies to estates by curtesy or dower, which, being created by act of law, could only be surrendered by an assu rance tantamount, as a deed. And now by the Statute of Frauds, Sect. 3. no surrender is valid unless it be by deed or note in writing, signed by the party so surrendering or his agent thereunto lawfully authorized by writing, or by act and operation of law. And therefore a writing signed by the surrenderor is necessary in every case to an express surrender, but a deed is only necessary in cases where it was required at common law 5. In practice a surrender is ordinarily made by deed.

At the present day, a surrender is in general considered as applying only to terms of years. The proper technical words of this

4

Farmer v. Rogers, 2 Wils. 27; Smith v. Mapleback, 1 T. R. 441.

112 Mod. 79.

Perk. s. 601; Doe v. Walker, 5 Barn. & Cr. 111.

* Perk. s. 589. Cro. Eliz. 302.

6 Madd. 66.

6 Magennis v. M'Culloch,

Gilb. Rep. 236.

assurance are, "surrender and yield up;" but any form of words which clearly manifests the intention is sufficient.

An assurance cannot operate as a surrender, unless the person who surrenders is in possession, and the estate of the surrenderee greater than that of the surrenderor; and therefore, as a married woman, during coverture, has only a title to dower, she cannot surrender it to the person against whom she is entitled1; nor can a lease for years, to commence at a future day, be surrendered, for there is nothing in the lessee in possession before the commencement of the lease, nor has the lessor a reversion before that2. And by reason of the latter part of the above proposition, a tenant for life cannot surrender to a tenant for years3. It was long doubtful whether a lessee for years could surrender to a reversioner for years, although the affirmative has generally been considered as established by Hughes v. Rowbotham4; but the point could scarcely be considered as being finally settled before the decision of the late case of Stephens v. Bridges5.

Surrenders, as have been seen, are either actual, "or by act and operation of law." To the former, a deed or writing, signed by the surrenderor, is absolutely necessary. A surrender "by act and operation of law," could not, from its very nature, require a deed or writing. At a very early period it became a question, whether the cancellation of a lease for years was a surrender "by act and operation of law." This was decided in the negative by Chief Baron Gilbert, "because the intent of the legislature was to take away the manner they formerly had of transferring interests in land by signs, symbols, and words only. Therefore, as livery of seisin on a parol feoffment was a sign of passing the freehold before the statute, but is now taken away by the statute; so the cancelling of a lease was a sign of a surrender before the statute, but is now taken away, unless there be a writing under the hand of the party. The words, by act and operation of law,' were to be construed a surrender in law, by the taking a new lease; which, being in writing, was of equal notoriety with a surrender in writing"6. Mere cancellation of the lease will, therefore, not be a surrender. It is not however to be inferred from the concluding passages of Lord Chief Baron Gilbert's judgment, that the surrender "by act and operation of law" is to be confined to the taking of a new lease; nor does the reason given why this is to be considered a surrender in law, namely, that "it being in writing, was of equal notoriety with a surrender in writing," appear very