of the alienor, is in no privity with the reversioner (h). No deed or writing is necessary at common law to the validity of an assignment (i); though in the case of a lease for life, it cannot be effected at common law, without livery of seisin (k); but now by the Statute of Frauds, the same provision as to the necessity of a deed or written instrument is made, as before mentioned in the case of a surrender. The operative words in an assignment are "assign, transfer, and set over;" but it may be effected by any words sufficient to express the intention (l).

X. CA Defeasance (m) is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated (n), or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffment was rendered void on repayment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law(0); and therefore only indulged. For a conveyance of the freehold at common law, cannot be defeated by a deed executed afterwards; and if such conveyance were to contain a proviso that it shall be lawful for the grantor by subsequent act to revoke the same, the proviso would be void for repugnancy (p). [But things that were merely executory,

(h) Holford v. Hatch, Doug. 182; Baker v. Gostling, 1 Bing. N. C. 19. (i) Noke v. Awder, Cro. Eliz. 373, 436; Moore, 419, S. C.

(k) Earl of Derby v. Taylor, 1 East, 502.

(1) Parminter v. Webber, 8 Taunt. 593. As to an agreement to assign, not amounting to an assignment, Hartshorne v. Watson, 5 Bing, N. C. 477.

(m) As to defeasance, vide Co. Litt. 236 b.

(n) From the French verb, defaire, infectum reddere. (0) Co. Litt. 236.

(p) Ibid. 237 a. But if there be a conveyance under the Statute of Uses with a proviso that the grantor shall have power to revoke the uses, "this proviso being coupled with a use is allowed to be good, and not repngnant to the former estates;" ibid. This subject will be noticed in the next chapter.

Cor to be completed by matter subsequent, (as rents, of which no seisin could be had till the time of payment, and so also annuities, conditions, warranties, and the like) were always liable to be recalled by defeasances made subsequent to the time of their creation(g).] Defeasances are now of rare occurrence(r); the practice in modern times being to include in the same deed, both the conveyance of the land to the alienee, and the conditions (if any) to which it is to be subject, and by which its effect may be defeated.

(9) Co. Litt. 237 a. If a thing however which is executory in its commencement be afterwards executed, it cannot be defeated by a subsequent defeasance; Co. Litt. by Butler, 237 a, n. (1).

(r)" In the case of Cotterill v.

Purchase, Lord Talbot said he should always discourage the practice of drawing an absolute deed and making a defeasance, as it wore the face of fraud, Ca. Temp. Talbot, 61, 64."-Co. Litt, by Butler, ubi sup.

CHAPTER XVIII.

OF CONVEYANCES UNDER the STATUTE OF USES.

THE subject of common law conveyances having now sufficiently engaged our attention, we are next to examine those which derive their force from the statute law; among which, the first place is due to conveyances founded on the Statute of Uses.

It is evident from what was said in a former chapter (a), that this statute entirely failed to accomplish the object contemplated by its provisions. For instead of extinguishing equitable ownerships, it made only a slight alteration in the formal words by which they might be constituted, and changed their name to that of trusts-under which they took root more firmly, and flourished in greater vigour than before. But while the statute thus missed its mark, it led to accidental results of a most important character, the nature of which we shall here proceed to explain.

The methods employed for creating or raising uses, at the period when the statute passed, were principally three; feoffment, covenant to stand seised to uses, and bargain and sale (b). The first transferred the legal estate in the manner already explained when we treated of common law conveyances; and it was applied to the purpose now in question, by declaring in the deed of feoffment, or some other collateral instrument (c), to whose use the feoffee was to hold, and defining the estate or interest for which such use was to subsist. The two last emanated from

(a) Vide supra, pp. 339-342.

(b) Reeves' Hist. Eng. Law, vol. iv. p. 161-163.

(c) 1 Sand. Us. 172, 173; Sugd. Gilb. Introd. xlii.

that doctrine of the courts of equity formerly noticed (d), that the owner of land who covenanted to stand seised of it to the use of some near relative, or entered into a bargain and sale of it for pecuniary consideration, was thenceforward to be considered as holding it to the use of the covenantee or bargainee respectively, in the cases supposed. As soon as this doctrine was established, the object of putting land into use could be accomplished with the greatest facility, by the mere execution on the part of the owner, of a deed of covenant to stand seised, or an instrument of bargain and sale, for such estate as therein mentioned, to the intended cestui que use; because a use conformable to that estate immediately arose in his favour (e); and though the original owner continued seised (there being no transfer of the legal estate), his ownership became nominal only, for he held subject to the use. In these two latter modes, therefore, as well as by a feoffment, it had become the common practice to raise uses before the statute passed.

After that event, it became obvious that uses had now become capable of being turned to a new purpose (though one that had not been designed by the legislature), viz. the conveyance of the legal estate upon a principle unknown to the common law. For we may remember that by the effect of the statute, whenever there is a seisin to a use, that use is executed, or (in other words) transmuted into equivalent legal estate (ƒ). A party, therefore, who desired to aliene his land after the passing of this act, had only to create (by whatever means) a seisin to the use of the proposed alienee, for such interest as intended (g); and a legal estate of the same description was then transferred to him by force of the statute, as effectually as if it had been conveyed by one of the ordinary methods of the common law. It was also obvious that this new principle

(d) Vide supra, p. 333.

(e) 1 Sand. Us. 172; Fox's case, 8 Rep. 941 n.

(f) Vide supra, p. 339.
(g) 1 Cruise's Dig. 440.

of conveyance presented parties with the means of escaping from many of the restrictions of the common law, with respect to the modification of estates; for uses (as we have seen) might be limited with greater freedom than the land itself (h); and as by a covenant to stand seised, or a bargain and sale, a seisin to uses might be created without any solemnity beyond the simple execution of a secret deed, any persons who were desirous to avoid the publicity and other inconveniences connected with livery of seisin, might effect the purpose with ease, by resorting to one of these methods, and making it a medium for the operation of the new principle (i). Under these circumstances it naturally happened that the same three methods which, before the statute, had been ordinarily employed to raise uses, now began to be employed as modes of transferring the legal estate; and in connection with this, they were also made, as often as occasion required, to fulfil their former office of creating equitable interests; to effect which, nothing more is necessary than to insert in them, a limitation of one use upon another, in the manner described in the chapter on uses and trusts (k); for while the use is executed by the statute, and becomes legal estate, the second retains, under the name of trust, the equitable character designed. Such is the principle of conveyances under the Statute of Uses, considered as a class. They comprise not only the feoffment to uses, the covenant to stand seised, and the bargain and sale, but another, which has been added to their number, since the statute passed, under the denomination of a lease and release. It will be necessary now to examine these individually and in detail; and we will begin with

I. A Feoffment to uses (1). This is the ordinary convey

(h) Vide supra, p. 331, 336.

(i) 2 Sand. Us. 40; 2 Bla. Com. 337.

(k) Vide supra, p. 343, 344. (1) Vide 1 Sand. Us. 173; 2 Sand. Us. 13.