Lease and release

Source: Jacob, Giles, and T.E. Tomlins. The Law-Dictionary: explaining the Rise, Progress, and Present State, of the English Law, &c. Vol. IV. I. "Lease and Release" (pp. 117-20). New York: Riley, & Philadelphia: P. Byrne, 1811. Transcribed by Alison Kilpatrick.

Transcription:

Portions have been boldfaced by the transcriber.

LEASE AND RELEASE, A conveyance of the fee-simple, right or interest in lands or tenements, under the statute of Uses, 27 H.8. c.10; giving first the possession, and afterwards the interest, in the estate conveyed. Though the deed of feoffment was the usual conveyance at common law; yet, since the statute of Uses, stat. 27 Hen.8. c.10, the conveyance by Lease and Release has taken place of it, and is become a very common assurance to pass lands and tenements; for it amounts to a feoffment, the use drawing after it the possession without actual entry, &c. and supplying the place of livery and seisin, required in that deed: in the making it, a Lease or bargain and sale for a year, or such like term, is first prepared and executed; "to the intent," as is expressed in the deed, "that by virtue thereof the Lessee may be in actual possession of the land intended to be conveyed by the Release; and thereby, and by force of the statute 27 Hen.8. c.10, for transferring of uses into possession, be enabled to take and accept a grant of the reversion and inheritance of the said lands, &c. to the use of himself and his heirs for ever: "Upon which the Release is accordingly made, reciting the Lease, and declaring the uses: and in these cases a pepper-corn rent in the Lease for a year is a sufficient reservation to raise an use, to make the Lessee capable of a Release. 2 Vent. 35: 2 Mod. 262.

Blackstone says, this species of conveyance was first invented by Serjeant Moore, soon after the Statute of Uses; and is now the most common of any, and therefore not to be shaken; though very great lawyers, as particularly Mr. Noy, Attorney-general to King Charles I. formerly doubted its validity. 2 Mod. 252. 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 enrollment, 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 must be made to a tenant in possession, and accordingly the next day a Release is granted to him. This is held to supply the place of livery of seisin, and thus a conveyance by Lease and Release is said to amount to a feoffment. Co. Litt. 270: Cro. Jac. 604.

The form of this conveyance is originally derived to us from the common law; and it is necessary to distinguish in what respect it operates as a common-law conveyance, and in what manner it operates under the statute of Uses. At the common law, where the usual mode of conveyance was by feoffment with livery of seisin, if there was a tenant in possession, so that livery could not be made, the reversion was granted, and the tenant attorned to the reversioner. As by this mode the reversion or remainder of an estate might be conveyed without livery, when it depended on an estate previously existing, it was natural to proceed one step further, and to create a particular estate for the express and sole purpose of conveying the reversion; and then by a surrender or Release, either of the particular estate to the reversioner, or of the reversion to the particular tenant, the whole fee vested in the surrenderee or Release. It was afterwards observed, that there was no necessity to grant the reversion to a stranger; and that if a particular estate was made to the person to whom it was proposed to convey the fee, the reversion might be immediately released to him, which Release, operating by way of enlargement, would give the Releasee (or Relesee as he is sometimes termed) a fee. In all these cases the particular estate was only an estate for years; for at the common law the ceremony of livery of seisin is as necessary to create even an estate of freehold, as it is to create an estate of inheritance. Still an actual entry would be necessary on the part of the particular tenant; for without actual possession the Lessee is not capable of a Release, operating by way of enlargement. But this necessity of entry for the purpose of obtaining the possession, was superseded or made unnecessary by the statute of uses (27 Hen.8. c.10, above alluded to); for by that statute the possession was immediately transferred to the Cestui que use; so that a bargainee under that statute is as much in possession, and as capable of a Release before or without entry, as a Lessee is at the common law after entry. All, therefore, that remained to be done to avoid on the one hand the necessity of livery of seisin from the grantor, and to avoid on the other the necessity of an actual entry on the part of the grantee, was, that the particular estate (which, for the reasons above mentioned, should be an estate for years) should be so framed as to be a bargain and sale within the statute. Originally it was made in such a manner as to be both a Lease at the Common Law, and a bargain and sale under the Statute: but as it is held, that where conveyances may operate both by the Common Law and Statute, they shall be considered to operate by the Common Law, unless the intention of the parties appears to the contrary, it became the practice to insert, among the operative words, the words Bargain and Sell; (in fact, it is more accurate to insert no other operative words;) and to express that the bargain and sale, or Lease, is made to the intent and purpose that thereby, and by the statute for transferring uses into possession, the Lessee may be capable of a Release. The bargain and sale therefore, or Lease for a year, as it is generally called, operates, and the bargainee is in the possession, by the statute. The Release operates by enlarging the estate or possession of the bargainee to a fee. This is at the Common Law; but if the use be declared to the Releasee in fee-simple, it continues an estate at the Common Law; but if the use is declared to a third person, the statute again intervenes, and annexes or transfers the possession of the Releasee to the use of the person to whom the use is declared. It has been said, that the possession of the bargainee under the Lease is not so properly merged in, as enlarged by, the Release; but at all events it does not, after the Release, exist distinct from the estate passed by the Release. 1 Inst. 271. b. in n. See tit. Release I.

As the operation of a Lease and Release depends upon the Lease, or bargain and sale; if the grantor is a Body Corporate, the Lease will not operate under the statute of uses; for a Body Corporate cannot be seised to an use, and therefore the Lease of possession, considered as a bargain and sale under the statute, is void; and the Release then must be of no effect for want of a previous possession in the Releasee. In cases of this nature, therefore, it is proper to make the conveyance by feoffment, or by a Lease and Release with an actual entry by the Lessee previous to the Release; after which the Release will pass the reversion. It may also be observed, that in exchanges, if one of the parties die before the exchange is executed by entry, the exchange is void. But if the exchange be made by Lease and release, this inconvenience is prevented, as the statute executes the possession without entry; and all incidents annexed to an exchange at Common Law will be preserved. 1 Inst. 271. b. in n.

When an estate is conveyed by Lease and Release, in the Lease for a year there must be the words bargain and sell for money, and five shillings or any other sum, though never paid, is a good consideration, whereupon the bargainee for a year is immediately in possession on the executing of the deed, without actual entry: if only the words demise, grant and to farm let are used, in that case the Lessee cannot accept of a Release of the inheritance, until he hath actually entered, and is in possession. 2 Lil. Abr. 435. But where Littleton says, that if a Lease is made for years, and the Lessor releases to the Lessee before entry, such Release is void; because the Lessee had only a right, and not the possession; and such Release shall not enure to enlarge the estate, without the possession: though this is true at Common Law, it is not so now upon the statute of uses. 2 Mod. 250, 251. And if a man make a Lease for life, remainder for life, and the first Lessee dieth; on which the Lessor releases to him in remainder, before entry; this is a good Release to enlarge the estate, he having an estate in law capable of enlargement by Release, before entry had. 1 Inst. 270.

No person can make a bargain and sale, who hath not possession of the lands: but it is not necessary to reserve a rent therein; because the consideration of money raises the use. If a Lease be without any such consideration the Lessee hath not any estate till entry, nor hath the Lessor any reversion; and therefore a release will not operate, &c. 1 Inst. 270, 278: Cro. Car. 169: 1 Mod. 263. On Lease at will, a Release shall be good by reason of the privity between the parties; but if a man be only tenant at sufferance, the Release will not enure to him; and as to the person who hath the reversion it is void, for such tenant hath not any possession, there being no estate in him. Litt. § 461, 462: Cro. Eliz. 21: Dyer 251.

In a Lease and Release, to make a tenant to the præcipe to suffer a recovery, where the release is made to A. B. and his heirs, (viz. the tenant to the præcipe,) it must be also said to the use of him the said A. B. and his heirs and assigns forever; for the Relessee must be absolute tenant of the freehold. 2 Vent. 312: Lil. Conveyance, 251. And a Release made on trust, must be to A. B. his heirs and assigns, to the only use and behoof of the Releasee, his heirs and assigns for ever; in trust for C. D. who is to be a party to the deed, and the purchase money to be paid by the cestui que trust. If the words to the use, &c. are not inserted in the Release, the estate doth not execute by the statute of uses, and the trust is void. Lil. Convey. 233, 251. See titles Recovery; Trust.

A Lease and Release make but one conveyance, being in the nature of one deed. 1 Mod. 252.

For further information as to the principles in which this form of conveyance originates, and under which it operates, see this Dictionary, titles Conveyance; Deed; Feoffment; Trusts; Uses; &c.

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"The past is a foreign country; they do things differently there."—Lesley Poles Hartley (1895–1972), The Go-Between (1953).

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