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and not in livery, and they were conveyed simply by deed' There was this essential difference between a feoffment and a grant; while the former carried destruction in its cours. by operating upon the possession, without any regard to the estate or interest of the feoffor, the latter benignly operated only upon the estate or interest which the grantor had in the thing granted, and could lawfully conreg." Feoffment and grant were the two great disposing powers of transfer of land, in the primitive ages of the English
To render the grant effectual, the common law required the consent of the tenant of the land out of which the rent, or other incorporeal interest, proceeded; and this consent was called attornment. It arose from the intimate alliance between the lord and vassal existing under the feudal tenures. The tenant could not alien the feud with out the consent of the lord, nor the lord part with his seignory without the consent of the tenant. The neces/ sity of the attornment was partly avoided by the modern
a Co. Litt. 9. b. 172. a. b Litt, sec. 608, 609.
c Wright on Tenures, 171. Mr. Butler, in his note 272. to lie.. Co. Litt., while he admits that this doctrine formerly prevailed in England, says, that it did not prevail to an equal extent on the continent, and the lord might transfer his whole fee, without the consent of the vassal, and the vassal became, by such transfer, the tenant of the new lord. Mr. Hallam, in treating of the feudal system on the continent, during the middle ages, passes over so very important a point, with only a general remark, that the connexion betroeer the face parties under the feudal tenure were so intimate, that it could not be dissolved by either, without requiring the other's consent; and he refers to no authority for his assertion.--Hallam on the Middle Ages, rol i 102. Sir Martin Wright refers to the book of feuds, (Feud. lib. 2. tit. 34. sec. 1.) where we have these words : ex eadem lege descendit quod Dominus sine voluntate vassalli feudum alienire non potest. But the book of feuds admits that this check upon the lord did not prerai? at Milan Mediolani non obtinet.
modes of conveyance under the statute of uses; and it was, at last, completely removed by the statutes of 4 and 5 Anne, c. 16., and 11 George II. c. 19.; and it has been equally abolished in these United States. The New York Revised Statutega have rendered the attornment of the tenant unnecessary to the validity of a conveyance by his landlord ; though, to render him responsible to the grantee, for rent or otherwise, he must have notice of the grant. Nor will the attornment of a tenant to a stranger be valid, unless made with his landlord's consent, or in consequence of a judgment or decree, or to a mortgagee after forfeiture of the mortgage. 6
The New York Revised Statutes have given to deeds of confeyance of the inheritance or freehold, the denominghon of grants; and though deeds of bargain and sal, and of lease and release, may continue to be used, Wey are to be deemed grants. That instrument of conveyance is made competent to convey all the estate and interest of the grantor, which he could lawfully convey ; and it passes no greater or other interest.C I should presume that, under the New-York statute, the operative word of conveyance is grant, and that no other word would be held essential ; but as other modes of conveyance operate equally as grants, any words, showing the intention of the parties to convey, would be sufficient. The policy of changing, by statute, the denomination of the usual deeds of conveyance of the freehold, and resolving them all into grants, may admit of some question. In the English lak, and in the law of this country, grants are understood to apply specifically to the conveyance of incorporeal hereditaments, and to letters patent from government. This is the usual understanding and application of the term, with the profession, and with the country at large. Doctor Tucker said, that the word grant, when applied to lands in Virginia, was synonymous with patent. There would seem to have been no necessity that the name of the ordinary and familiar conveyance, by bargain and sale, should have been dismissed and absorbed in the word grant. The deed of bargain and sale might have been declared to operate, as heretofore, by a transfer of the title, without the necessity of the theory of raising a use."
a Vol. i. 739. sec. 146.
d Lord Coke says, that the word grant (concessi) may amount to a grant, a feoffment, a gift, a lease, a release, a confirmation, a surrender, &c.; and it is in the election of the party to use it to which of these purposes he will. (Co. Litt. 301. b.) The word convey, or the word assign, or the word transfer, would probably be sufficient. It is made the duty of the courts, in the construction of every instrument conveying an estate, “ to carry into effect the intent of the parties;” and that intent may as certainly appear by these words as by any other.
It will be unnecessary to enlarge upon conveyances, of a special or secondary character, as exchange, partition, confirmation, surrender, assignment, and defeasance; and witkout dwelling upon them, I shall proceed, at once, to the consideration of conveyances, which owe their introJuction, and universal practice, to the statute of uses.
(3.) Pf the covenant to stand seised to uses.
By this conveyance, a person seised of lands, covenants that he will stand seised of them to the use of another. On executing the covenant, the other party becomes seised of the use of the land, according to the terms of the use; and the statute of uses immediately operates and annexes the possession to the use. This conveyance has the same force and effect as a common deed of bargain and sale ; but the great distinction between them is, that the former
a Mr. Humphreys, in his Outlines of a Code, proposed that the name of all deeds should be conveyance, and the operative word comvey. What restlessness does this exhibit !
can only be made use of among near domestic relations, forat must be founded on the consideration of blood or marriage. No use..can be raised for any purpose by this conveyance, in favour of a person not within the influence of the domestic consideration; and it makes no difference whether the grantee, if he be a stranger to the consideration, is to take on his own account, or as a mere trustee, for some of the family connexions. He is equally incompetent to take. The existence of another consideration, in addition to that of blood or marriage, will not impede the operation of the deed. Covenants to stand seised are a species of conveyance no longer in use in England.” They owe their efficacy to the statute of uses, and in NewYork the statute of uses is abolished, and no mention is made of this conveyance. But if the covenant to stand seised be founded on the requisite consideration, it would be good as a grant, for there could be no dispute about the intention; and it is admitted, that in a covenant to stand seised, any words will do, that sufficiently indicate the intention. It is a principle of law, that if the form of the conveyance be an inadequate mode of giving effect to the intention, according to the letter of the instrument, it is to be construed under the assumption of another character, so as to give it effect. Cum quod ago non valet ut ago, valeat quantum valere potest. The qualification to this rule is, that the instrument must partake of the essential qualities of the deed assumed, and, therefore, no instrument can operate as a feoffment without livery, either shown or prefumed; nor as a grant, unless the subject lies in grant; (as it now does in New York in all cases of the freehold ;) nor
c Lord Paget's case, 1 Leon, 195. 1 Co. 154. a. Wiseman's case, 2 Co. 15. Smith v. Ridley, Cro. C. 529. Hore v. Dix, 1 Sid. 25. Jackson y. Sebring, 16 Johns. Rep. 515.
d Vide supra, p. 237, note.
as a gfkenant to stand seised, without the consideration of blog or marriage ; nor as a bargain and sale, without a výbable consideration. If there be no lease to make the Weed good as a release, and no livery to make it good as a feoffment, it may operate as a bargain and sale, or covenant to stand seised, provided there be the requisite consideration."
(4.) Of lease and release
This is the usual mode of conveyance in England, because it does not require the trouble of enrolment. It was Contrived by Serjeant Moore, at the request of Lord Norris, for a particular case, and to avoid the unpleasant notoriety of livery, or attornment. It was the mode universally in practice in New-York until the year 1788. The revision of the statute law of the state at that period, which re-enacted all the English statute law deemed proper and applicable, and which repealed the British statutes in force in New-York while it was a colony, removed all apprehension of the necessity of enrolment of deeds of bargain and sale, and left that short, plain, and excellent mode of conveyance, to its free operation. The consequence was, that the conveyance by lease and release, which required two deeds or instruments, instead of one, fell immediately into total disuse, and will never be revived.
The lease and release, when used as a conveyance of thg fee, have the joint operation of a single conveyance. The first step was to create a small estate, as a lease for a year, and vest possession of it in the grantee. In a lease at common law, actual entry was requisite to vest the possession, and enable the lessee to receive a release of the
a Doe v. Salkeld, Willes' Rep. 673. Preston on Abstracts, vol. 1. 71. 312. Ibid. vol. iii. 23, 24. Cheney v. Watkins, 1 Harr. & Johns. 527.