land (p). The law, however, on this subject, has been since altered; for by the Statute of Frauds, 29 Car. 2, c. 3, ss. 1, 2, all leases whatever, with the exception of those not exceeding three years, with a rent of not less than twothirds of the improved value, must now be put into writing and signed by the lessor or his agent lawfully authorised. It results also, from the former observations with respect to estates for years (q), that a lease of land for years will not vest in the lessee a complete estate for all purposes, until he has made entry on the land demised; and that in the mean time he takes nothing beyond an interesse termini.

When the lease is for years only, the estate may be granted to take effect in possession either immediately, or at some future time (r), and in the latter case the lessee has of course no right to enter until that future period has arrived. But it is important carefully to distinguish these leases in futuro from mere agreements to let; for an intended lessor may, without using such words as actually to divest himself of any interest present or future, simply engage to grant a lease at a future period; and as no interest in the mean time passes, this will be a mere agreement, and no lease (s).

[The usual words of operation in a lease are "demise, grant, and to farm let(t)," demisi, concessi et ad firmam tradidi. For farm or feorme is an old Saxon word, signifying provisions (u), and it came to be used instead of

(p) But a lease of an incorporeal hereditament cannot be made at common law without deed. Co. Litt. 49; Bird v. Higginson, 6 Ad. & El. 824; Rex v. Marquis of Salisbury, 8 Ad. & El. 716.

(9) Supra, p. 268.

(r) Vide supra, p. 297.

(s) Whether a given instrument amounts to a lease, or only to an agree ment to let, is a question of construction upon the words used, and often a

difficult one. Vide Poole v. Bentley, 12 East, 168; Doe v. Groves, 15 East, 244; Doe v. Ries, 8 Bing. 178; Warman v. Faithful, 5 B. & Adol. 1042; Hayward v. Haswell, 6 Ad. & E. 265; Chapman v. Bluck, 4 Bing. N. C. 187; Doe v. Benjamin, 9 Ad. & Ell. 644; Chapman v. Towner, 6 Mee, &

W. 100.

(t) Co. Litt. 45 b.

(u) Spelm. Gloss. 229.

[rent or render, because anciently the greater part of rents were reserved in provisions, in corn, in poultry, and the like, till the use of money became more frequent: so that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme,-though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent. Neither the words "to farm let," however, nor any of the others above specified (though usual), are indispensable to the effect of a demise; any expressions sufficiently indicating the intention of one of the parties to divest himself of the possession, for a determinate period, in favour of the other, being clearly sufficient to constitute a lease(r). And even the words "agree to let" may be so used as to amount in construction of law to an actual demise, and are not necessarily to be expounded as a mere agreement for a lease (y).

IV. [An Exchange is a mutual grant of equal interests, the one in consideration of the other. The word "exchange" is so individually requisite and appropriated by law, to this case, that it cannot be supplied by any other word or expressed by any circumlocution (z). The estates exchanged must be equal in quantity (a); not of value, for that is immaterial; but of interest; as fee simple for fee simple, a lease for twenty years for a lease for twenty or thirty years, and the like. And the exchange may be of things that lie either in grant or in livery (b).] And though an exchange of things lying in grant must be by deed, and, by the Statute of Frauds (c) just mentioned, an exchange will not now be effectual, whether the thing lie in grant or livery, without writing, yet [no livery, even in exchanges of freehold, is necessary to perfect the convey

(x) Bac. Abr. Leases, &c.; Doe v. Ashburner, 5 T. R. 163; Barry v. Nugent, 5 T. R. 165, n.

(y) Poole v. Bentley, 13 East, 168. Vide supra, p. 476.

(*) Co. Lit. 50, 51; Eton College v. Bishop of Winchester, 3 Wils. 468.

(a) Litt. s. 64, 65.

(b) Co. Litt. 50 a.

(c) 29 Car. 2, c. 3, s. 1, 3.

Lance (d): for each party stands in the place of the other, and occupies his right, and each of them hath already had corporal possession of his own land. But entry must be made on both sides; for if either party die before entry, the exchange is void for want of sufficient notoriety (e). And so also if two parsons, by consent of patron and ordinary, exchange their preferments, and the one is presented, instituted, and inducted, and the other is presented and instituted, but dies before induction, the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his own (f). For if after an exchange of lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other's title, he shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges (g).] Before we conclude this head, it may be important, however, to point the reader's attention to the distinction between the conveyance properly called an exchange (that is, one made in the method above pointed out), and a transaction where the parties execute mutual conveyances under some other form or forms of assurance, and without the word "exchange;" for to such a case, the doctrines above laid down, as to exchanges, have no application (h).

V. CA Partition (i) is where two or more joint-tenants, coparceners, or tenants in common, agree to divide the lands so held among them in severalty, each taking a distinct part. Here, as they all hold pro indiviso or promiscuously (k), [it is necessary that they all mutually convey and assure to each other the several estates, which

(d) Litt. s. 62.
(e) Co. Litt. 51 b.
(f) Perk. s. 288.

(g) Vide supra, P.

452.

(h) Vide Eton College v. Bishop

of Winchester, 3 Wils. 491.

(i) As to partition, vide Co. Litt. 165 b.

(k) Vide supra, p. 311, 312.

[they are to take and enjoy separately. By the common law, coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common] could not have done it without deed. And the statutes of 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, though they subjected them to a writ of partition (1), yet made no alteration as to the manner of conveyance where the partition took place without writ (m). However,. it would seem, that by the Statute of Frauds before mentioned, an instrument in writing, signed by the party or his agent, is now necessary in every case of partition, as well between coparceners as others (n).

The common law conveyances, which have been hitherto considered, are all (it may be remarked) of a primary or original character. Those which remain are of a [secondary or derivative sort, which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance.] As

VI. A Release (o); which may be defined as a conveyance of an ulterior interest in lands or tenements to a particular tenant, or of an undivided share to a co-tenant (the relessee being in either case in privity of estate with the relessor), or of the right, to a person wrongfully in possession. It is effected in every case, without livery of seisin, even though the interest conveyed be freehold ; for the doctrine of release is founded on this principle, that though the freehold in possession cannot pass at common law without livery (which makes a notoriety to the country), yet where another person is already in the possession, the reason and propriety of that ceremony fail, and the grantor may consequently convey such right or

(1) Vide supra, p. 317. (m) Co. Litt. 169 a.

(n) 2 Bla. Com. 324; Co. Litt. by Harg. 169 a, n. (4).

(0) As to releases, vide Co. Litt.

264 a. Some account of the early state of the law respecting them will be found in Reeves' Hist. Engl. Law, vol. iii. p. 354.

interest as he has, by mere deed (p). A deed, however, is essential to the efficacy of this conveyance (q); and the proper operative word to be employed in it is that of “release:" yet it is to be observed, that the release of a right may not only be express, but may also be implied by law from circumstances; and when it is of this kind, it may take place without deed (r).

A release (as is inferrible from the definition) may enure in several ways.

[1. By way of enlarging an estate, or enlarger l'estate,] which is the species of release that most frequently occurs; and consists of a conveyance of the ulterior interest to the particular tenant; [as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee.] But to the validity of such releases as these, it is necessary that the estate of the relessee should be a complete and vested one(s) [for if there be lessee for years, and before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void], and this because the lessee has in such case, a mere interesse termini, and not an estate upon which a reversion can properly be expectant(t). And farther [there must be a privity of estate

(t) "Before entry," says Lord Coke, "the lessee has but interesse "termini, an interest of a term and

Co.

no possession; and therefore a re"lease which enures by way of en"larging an estate, cannot work with"out a possession: for before posses"sion there is no reversion." Litt. 270 a. It is to be observed, however, that if the estate for years be created by a conveyance under the Statute of Uses, and not at common law, no actual entry is necessary to give effect to the release. The reason of this will appear when we treat of conveyances of that class.