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reversion. To avoid the necessity of actual entry, the lesser estate was created by a bargain and sale under the statute of uses, and founded on a nominal pecuniary consideration. The bargain raised the use, and the statute immediately annexed the possession to the use ; and the lessee, being thus in possession by the operation of the statute, was enabled to receive a release of the reversion. The release was a conveyance at common law, and ope-, rated by way of enlargement of the estate ; and thus, by the operation of the lease, by way of bargain and sale, under the statute of uses, and by the operation of the release at common law, the title was conveyed. • If the lease is not to operate, under the statute of uses, as bargain and sale, then a consideration is not necessary. As the statute of enrolments of 27 Hen. VIII. did not rapply to terms for years, the bargain and sale for a pecuniary consideration placed the lessee before entry, in the same situation with the lessee at common law after entry; and it was early settled, that the estate of such a lessee was capable of enlargement by release, and that such a mode of conveyance was effectual.a
(5.) Of bargain and sale.
This is the mode of conveyance most prevalent in the United States, and it was in universat use in New York, prior to the introduction of the grant, by the revised statutes, in January, 1830. A bargain and sale was originally a contract for the conveyance of land for a valuable consideration ; and though the land itself would not pass without livery, the contract was sufficient to raise a use, which
a Lutwich v. Mitton, Cro. J. 604. Barker v. Keat, 6 Mod. Rep. 249. The second volume of Mr. Preston's Treatise on Conveyancing, is essentially devoted to the theory of the law as it applies to the conveyance by lease and release; and the subject is exhausted and treated in attenuated detail.
the barganhor was bound in equity to perform. Nothing can be more liberal than the rules of law, as to the words requisite to create a bargain and sale. There must be a valuable consideration, and then any words that will raise a use, will amount to a bargain and sale. After the statute of uses was passed, a use was raised, and vested in the bargainee, by means of the bargain, and the statute annexed the possession to the use; and by that operation the bargain became at once a sale, and complete transfer of the title.c
Aase may be raised by feoffment, as well as by bargain and sale, or covenant to stand seised to uses. But when Aaised by feoffment, the feoffor, having parted with the legal estate, cannot stand seised to the use of the feoffee, as the bargainor and covenantor, who retain in themselves the legal estate, do in the other cases. Bargain and sale, and covenant to stand seised, are conveyances not adapted to settlements, and this is the reason why they have been so generally disused in England. They both require a consideration, and they could not be applied to the case of persons not in esse, for they had not contributed to the consideration when the conveyance was made. The conveyance by lease and release, has become the universal mode by which property is conveyed in England, whether by way of sale, mortgage, or settlement. It has this attractive circumstance attending it. It has not the inconvenience and notoriety of livery which is requisite in feoff. ment, or of enrolment which is required by the statute of 27 Hen. VIII. in a bargain and sale. It is, therefore, a mode of conveyance well adapted to that secrecy which
a Chudleigh's case, 1 Co. 121. b.
6 2 Inst. 672. Jackson v. Fish, 10 Johns. Rep. 456, 457, and see ibid. 505. to S. P.
< 2 Blacks. Com. 338. d Thatcher v. Omans, 3 Pick. Rep. 532. See also, supra, p. 296. e See supra, p. 237. note.
best accords with the feelings connected with family settle. ments.
(6.) Of fines and recoveries.
Alienation by matter of record, as by fines and common recoveries, make a distinguished figure in the English code of the common assurances of the kingdom. But they have not been in much use in any part of this country, and probably were never adopted, or known in practice, in most of the states. The conveyance by common recovery was in use in Delaware and Maryland before the American revolution, but it must have become obsolete with the disuse of estates tail. Fines have been occasionally levied in New-York for the sake of barring claims; but by the New-York Revised Statutes,* fines and com: mon recoveries are now abolished. The English real property commissioners, in their report to Parliament, in 1829, proposed the abolition of fines and recoveries in England, and to enable tenants in tail to convey the fee, and to dock the entail by deed to be enrolled in the Court of Chancery. ' They proposed, likewise, to allow femes covert to part with thoff estates and interests in law, or equity, by deed, with the concurrence of their husbands, and after a private examination by an officer. The entire disuse of common recoveries followed, of course, in this country, upon the abolition of estates tail; for such a fictitious suit, considered as a conveyance of land in cases allowed by law, is most inconvenient and absurd. And since the acknowledged and long settled competency of a tenant in tail, to convey and bar the issue in tail, a more simple and easy mode of conveyance might well be contrived by the sages of the law in England. The conveyance by fine, as a matter of record transacted in one of the highest courts of common law, has some great advantages, and merits a more serious
« Vol. ii. 343. sec. 24.
consideration. Its force and effect are very great, and great solemnity is required in passing it, because, said the statute of 18 Edw. I., " the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those who are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied, unless they put in their claim within a year and a day.” This bar by non-claim was, afterwards, by the statute of 4 Hen. VIL. extended to five years. These statutes, and this bar of non claim after five years, were re-enacted in New York, and continued in force until January, 1830; and common recoveries were equally recognised by statute as a valid mode of conveyance, down to this last-mentioned period. Such a formal, solemn, and public mode of conveyance, with such a short bar by non-claim, was resorted to in special cases, where title had become complex, and the property was of great value, and costly improvements were in immediate contemplation. Doctor Tucker recommended a resort to it, in Virginia, on this very account. In our large cities, where land is exceedingly valuable, and large, durable, and very expensive erections are constantly making, it may be desirable that the certainty of the title should be established within a shorter period than twenty years. This is the only objection that could possibly be made to the abolition of the conveyance by fine ; for, as to the notoriety of the transfer, it is by no means equal to the record of a deed in the county where the lands are situated, and where all persons are accustomed to resort, as þeing the only place for information. In point of fact, the levying a fine, with us, may be considered to partake of secrecy, for it never attracts public observation. But when kve come to consider the state and condition of real pro
h Tucker's Blacks. vol. ii. 355, note.
perty in England, where conveyances are not, in general, requjved to be recorded, the formal proposition to abolish fipes was not to have been anticipated. The circumstances Fof the two countries are totally different. I should suppose that there must be great veneration justly due to a system of transfer by record, which has exhausted so much cultivation, which has been transmitted down, in constant activity, from distant ages, and on whose foundations the best part of English real property reposes. In Serjeant Wilson's Essay on Fines, they are said to be “ the strength of almost every man's inheritance.” Such a great innovation may have an unpropitious influence upon the character, policy, and stability, of the English jurisprudence It will, however, favourably abridge the labours of students and make great havoc in an English law library. Volume after volume, filled with essays and adjudications upon fines and recoveries, will be consigned to oblivion.
a Besides the extended view of the law of fines and recoveries in all the abridgments of the law, there are the distinct treatises in Sheppard's Touchstone, and of Pigott, Wilson, Cruise, and Preston, on fines and recoveries, and probably other works with which I am not acquainted. Mr. Brougham, in his celebrated speech on the present state of the English law, recommended the abolition of fines and recoveries; and he observed, that he should not drop a tear over the curious learning, and musty records, which would, in that case, be swept away. But while he exposed to just ridicule the fictitious action of a common recovery, as an instrument of conveyance, he entered into no discussion concerning the merit or demerit of fines. The English put more to hazard in meddling with their jurisprudence than any other European nation; and they ought to be more jealous than any other, of the spirit of innovation and codification which are abroad in the land. When a free people have their constitution and system of laws pretty well established, construed, and understood; when their usages and habits of business have accommodated themselves to their institutions, and especially when they are secure in their persons and property, under an able and impartial administration of justice, they ought, above all things, to beware of theory, for “ in that way madness lies.”