CONVEYANCES-continued. level of an innocent conveyance. Even feoffments made by idiots and lunatics were valid until the same were avoided, which might never be; and an infant's feoffment of gavelkind lands is absolutely valid, provided he he of the age of fifteen years. Secondly, the livery of seisin. The seisin was the feudal possession; and a transfer of the land accompanied with seisin was the transfer of an estate carrying the seisin with it. Livery of seisin was of two kinds,-either (1.) Livery in deed; or (2.) Livery in law. See these titles. No deed of feoffment was complete, or to the present day is complete, unless the same has been followed with livery of seisin; and as a convenient mode of evidencing the fact of such livery having been made, it is usual to indorse upon the deed which contains the limitations a notice to the effect that the seisin was delivered at a certain place, day, and hour. The feoffment, strictly speaking, was the proper form of conveyance of an estate in fee simple absolute or determinable; if it was used to pass a fee tail, it was more properly termed a gift (see that title), and if it was used to pass a life estate, it was more properly termed a lease (see that title.) When a particular estate, whether for years or of freehold, and a freehold remainder are created together de novo out of a corporeal hereditament in possession, the livery which is given to the tenant of the particular estate in possession enures to the remainderman; on the other hand, when an estate is created afterwards, expectant on a lease for years then in being, the livery must not be made to the lessee for years, but to the remainderman himself with the consent of the lessee for years. Of course, no such remainder created afterwards can be expectant on a lease for life, or estate of freehold. The feoffment was a conveyance of very powerful efficacy. Thus, by reason of the entry and livery of seisin, it clears all disseisins, abatements, intrusions, and other wrongful or defeasible estates, when the entry of the feoffor is lawful; and it not only passes the present estate of the feoffor, but bars him of all present and future right and possibility of right to the thing which is so conveyed; insomuch that if he has divers estates all of them pass by the feoffment, and if he has any interest, rent, common, condition, power, or contingent use or benefit in, to, or out of the land, it is extinguished by the feoffment; and the feoffment destroys also all contingent remainders in strangers, if supported only by an estate of freehold in the feoffor. And prior to the Act 8 & 9 Vict. c. 106, s. 4, it CONVEYANCES-continued. had a tortious operation so as to pass even a larger estate than the feoffor had in him to pass. (2.) Gift.-This was the form of conveyance properly applicable to an estate tail; whence the person creating the estate tail is termed the donor, and the person taking it the donee. It required livery of seisin to make it effectual. (3.) Grant.-This was the distinctive mode of conveyance of an incorporeal hereditament, which however must have been in existence at the date of the grant, and not created by the grant. (4.) Bargain and Sale.-This form of conveyance was applicable not only to corporeal but also to incorporeal hereditaments in actual existence. It required to be for money, or money's worth, and not for natural love and affection merely. All persons having an estate of freehold might convey by means of it, but not a mere term, or for years. The enrolment of a bargain and sale, if made within the proper time relates back to the execution of the deed, and any intervening alienation or charge by the bargainor would therefore be void, but such an alienation or charge by the bargainee would be good when the bargain and sale was afterwards perfected by enrolment. Inrolment was first rendered necessary by the Statute of Inrolments (27 Hen. 8, c. 16), but only when the bargain and sale was for an estate of freehold. (5.) Lease, including Underlease.—A lease is properly a conveyance (subject to rent) of lands or tenements made for life, for years, or at will, but always for a less estate than the lessor has in the premises; and similarly an underlease is a lease made by the lessee for a less period than the period of his own lease. Sometimes, what purports in its language to be only an agreement for a lease is, in reality, an actual lease; for if there are words of present demise and an apparent intent to the effect of these words, then the deed is an actual lease, notwithstanding the words are agrees to let," and allusion is made to a lease to be executed at some future date. Poole v. Bentley, 12 East, 168; Doe d. Phillip v. Benjamin, 9 Ad. & El. 644. 66 By the Common Law, a tenant for life (except under a power) cannot make a lease for a longer period than that of his own life; and a lease granted by him for a longer period is as to the excess absolutely void as against the remainderman or reversioner. When the tenant for life and the remainderman or reversioner unite in making a lease, the lease is considered during the life of the tenant for life as his lease, and as the confirmation thereof by CONVEYANCES-continued. the remainderman or reversioner; and after the death of the tenant for life as the lease of the remainderman or reversioner, and the confirmation of the tenant for life. See also title MINISTERIAL POWERS OF TENANT FOR LIFE. By the Common Law, a tenant in tail could not, without a fine or recovery, make any lease binding on the issue in tail, or remainderman, or reversioner; and if a husband seised jure uxoris made a lease of the wife's land, whether she joined in it or not, the lease was only good during the joint lives of the husband and wife and the life of the husband surviving her, and was voidable (although not void) if the wife survived. But see title MINISTERIAL POWERS OF TENANT IN TAIL. (6.) Exchange. This is a conveyance, or group of conveyances whereby two persons or classes of persons holding property in common, divest themselves respectively of their estates in favour of the other person, or class, and in lieu thereof respectively take the property of the other. There are five requisites by the Common Law to the validity of an exchange, that is to say: (1.) The two properties must be of the same quality; (2.) The properties exchanged must be of the same quantity; (3.) The word "exchange" must be used; (4.) Entry is requisite, although not livery of seisin; and (5.) Writing since 29 Car. 2, c. 3, and a deed since 8 & 9 Vict. c. 106, s. 3. The word "exchange" used to raise an implied warranty of title; and in case of the title being displaced either in whole or in part by an elder title, the exchanging party who was evicted used to have the right to re-enter upon the lands which he had given in exchange,-a right which belonged to himself and his heirs only, not also to his alienees, Any alienation by either exchanging person deprived him of the right of re-entering, although it left the other the right of re-entering upon the lands even when in the hands of the alienee. But since the stat. 8 & 9 Vict. c. 106, this effect has been taken from the exchange. (7.) Partition. This is a conveyance by which two or more joint tenants, co-parceners, tenants in common, or heirs in gavelkind, divide the property so as to give to each a distinct part, to be held in severalty. The arrangement to sever may be the result of agreement, in which case it is said to be Voluntary, or the result of a decree of the Court of Chancery, in which case it is said to be Compulsory. In either CONVEYANCES-continued. case, the same conveyances are necessary; and for facilitating the execution of which the Trustee Act, 1850, s. 30, enables the Court of Chancery to declare the interests of unborn persons, and also to declare any particular persons trustees of the lands. And by the stat. 31 & 32 Vict. c. 40, a sale may be directed in lieu of partition. The modes of effecting a partition are the following: I. As to freeholds or inheritances: either (1.) All the co-tenants convey by separate deeds the particular allotments to releasees or grantees, to the use of the particular persons to whom they are respectively allotted; or, (2.) All the co-tenants convey by one II. As to personal estate: either (2.) Each co-tenant assigns to the Co-parceners being compellable by the Common Law to make partition, the Law provided in their case (but not also in the cases of joint tenants and tenants in common), that if any co-parcener after partition and before alienation was evicted from the whole or from part of his or her allotted share, he or she might thereupon re-enter upon the other shares even when in the hands of an alienee or alienees of the other co-parceners. But by the 8 & 9 Vict. c. 106, s. 4, this right of re-entry is taken away. (8.) Release. This is a deed whereby either a right is extinguished, or an estate or interest in things real or personal is conveyed to a person who has already some estate or interest in possession in the same. When the release is the discharge of a sum due, e.g., for rent, it is called an acquittance. The operation of the release is CONVEYANCES-continued. Besides express releases, or releases by deed, there are also releases in law; e.g., a covenant never to sue amounts in construction of Law to an absolute release of the covenantee; also a release to one of several co-debtors, discharges them all both in Equity and at Law, and although they are severally as well as jointly bound; and a proviso that the co-debtor should not have any advantage from the release would be void for repugnancy. Similarly, a release of the right to land, if made to a tenant in tail or for life, enures to the remainderman or reversioner. (9.) Confirmation.-This is a deed whereby a conditional or voidable estate is made absolute and unavoidable by the confirmor, or whereby a particular estate is increased. The confirmee must also have an estate and not a mere interest in the lands confirmed; also the contract or other instrument which is confirmed must be at the most voidable and not void. A confirmation to one joint tenant enures to the other or others; and a confirmation to a remainderman or reversioner enures to the owner of the prior particular estate. (10.) Surrender.-This conveyance is the converse of the release which operates by way of enlargement; the effect of the surrender being the merger of the smaller estate in that of the surrenderee. A surrender may be either (a) Express; or (b.) Implied in law; the former being in so many words, the latter arising in the following cases : (aa.) A lessee for an unexpired term, or which is inconsistent with the The estate of the surrenderor must be a rested estate; it must also be an estate which is capable of merger, and therefore it must not be an estate tail, nor of higher denomination than the estate of the surrenderee; there must also be a privity or contiguity between the estate of the surrenderor and that of the surrenderee. (11.) Assignment. This deed is the alienation by transfer of a personal chattel, or of a chattel interest in real estate. If it is for no consideration, it is a gift; if it CONVEYANCES-continued. is for value it is a bill of sale. Every assignment, if a gift, must be by deed; but if a bill of sale or transfer for value, it may, if a purely personal chattel, e.g., a debt, be assigned at least in Equity, and since the Judicature Act, 1873, even at Law, by a simple writing, not necessarily a deed, although the assignment of chattels real must be by deed, 8 & 9 Vict. c. 106, 8. 3. By the stat. 22 & 23 Vict. c. 35, 8. 21, anyone may assign personal property including chattels real directly to himself and another person by the like means as he might have assigned to another only. (12.) Defeasance.-This is a collateral deed, containing certain specified conditions upon which an interest created or transferred by another deed may be defeated. In the case of an estate of freehold and other executed estates, it must be made at the same time with the deed creating or transferring these estates; but in all other cases it may be made at any time subsequently to the deed of creation or transfer. A defeasance, excepting that it is contained in a separate deed, is in all other respects like a condition subsequent. (13.) Disclaimer.-This is a deed whereby a grantee, devisee, or legatee renounces the grant, devise, or bequest, which renunciation he is competent to make at any time before he has done any act to shew his assent to the grant, devise, or bequest. If one or more joint tenants short of all disclaim, the entire estate or interest vests in the other or others; but if all disclaim, the estate will, if real estate, descend to the heir, and, if personal estate, will vest in the administrator when appointed. II. Statutory Conveyances, and hereunder. A. Conveyances under the Statute of Uses, and hereunder, the following: 66 (1.) Covenant to stand seised.-Whenever a covenant of this kind is entered into, if the consideration (which must be that of blood or natural affection) is sufficient, a use arises out of the seisin of the covenantor, and is immediately executed by the statute in the cestui que use, who thereby acquires the legal estate. The proper and technical words of this conveyance are, Covenant to stand seised to the use of A.," &c., but any other words will have the same effect; e.g., even the words "bargain and sale" (Crossing v. Scudamore, 1 Mod. 175; Roe v. Tranmarr, Willes, 632). The covenantor must, however, be a person who is capable of standing seised to a use; and the property conveyed must be such as admits of a person being seised thereof. (2.) Lease and Release.-This, until the years 1841-5, was the most common form CONVEYANCES-continued. of conveyance under the Statute of Uses. The mode of its operation may be explained by three steps or by two: (a.) By three steps, consisting successively of lease, entry, and re lease. (b.) By two steps, consisting successively of bargain and sale, and release. But whether explained in the one way or in the other, the manner of its operation was this: to create a tenant in possession for a year or term of years, and thereafter to release to him the reversion in fee simple. In this way, the tenant became seised of the legal estate in fee simple, and inasmuch as the uses were afterwards annexed to his seisin, he was called the "releasee to uses," and all covenants were entered into by and with him. But, otherwise, he was a mere conduit-pipe or channel, through which the legal estate passed into the first usee, who again was held to be a trustee for the second or last usee in the ordinary way. (3.) Deeds leading or declaring Uses.Where it was intended to levy a fine or suffer a common recovery, it was usual to execute a deed either previously or subsequently to the fine being levied or recovery suffered; and if executed previously, the deed was said to be one leading the uses, but if executed subsequently, it was said to be one declaring the uses. (4.) Appointment.-This is a deed executed in virtue of a power of appointment. The power of appointment is conferred in these words: "To A. (the appointor) to such uses as he shall appoint;" and upon the grammatical construction of these words, it has been held that A.'s power is only over the uses. Consequently, if A. subsequently by deed or will appoints the lands to B. to the use of C., it is held that B. takes the legal estate under the Statute of Uses, and retains it as a trustee for C., who only takes the equitable estate. The power of appointment may be either general or special; and A.'s execution of it, if general, will date from the time of the actual execution, but if special, will date from the time of the execution of the instrument creating the power (if a deed), and of the death of the testator (if a will). B. Conveyances under statutes other than the Statutes of Uses, and hereunder the following: (1.) By the stat. 4 Vict. c 21, s. 1, it is enacted that a deed of release of a freehold estate executed on or after the 15th of May, 1841, and expressed to be made in pursuance of that Act, shall be as effectual as a lease and release together would have been. (2.) By the stat. 8 & 9 Vict. c. 106, s. 2, it is enacted that a deed of grant shall CONVEYANCES-continued. suffice for the conveyance of the immediate freehold of corporeal hereditaments. (3.) By the stat. 3 & 4 Will. 4, c. 74 (Fines and Recoveries Abolition Act), s. 15, it is enacted I. With regard to lands of freehold tenure. That every actual tenant in tail, whether in possession, remainder, contingency, or otherwise, may dispose of the entailed lands for an estate in fee simple absolute, or for any less estate, excepting, nevertheless, the following classes of tenants in tail, under ss. 16, 18, and 20, viz.: (aa.) Tenant in tail ex provisione viri under settlement dated on or before the 31st of December, 1833, excepting with the formalities required by the stat. 11 Hen. 7, c. 20; (bb.) Tenant in tail restrained from such disposition by statute; (cc.) Tenant in tail after possibility of issue extinct; and (dd.) Tenant in tail in expectancy as being issue inheritable. But in every such disposition, the consent of the protector, where there is any such, either by appointment of the settlor or under the Act, is requisite (ss. 34, 35) to enable the tenant in tail to create a fee simple absolute, or any estate larger than a base fee and the protector in giving or in withholding such consent is to be subject to no control whatsoever, nor is he to be liable in respect of his exercise of his own discretion in the matter, s. 36. See title PROTECTOR. By s. 40 of the same Act, every disposition by tenant in tail under the Act is to be made by deed, and not by contract or will; and the tenant in tail, if a married woman, is to procure her husband's concurrence in the deed, and is to acknowledge the same; and, in every case, the deed of disposition (not being a lease for or under twenty-one years, at or over fivesixths of a ruck rent) is by s. 41 required to be inrolled in the Court of Chancery within six calendar months from the date of its execution; and by sect. 74 is to take effect upon such inrolment as from the date of its execution, excepting as against any intermediate purchaser for value. By s. 38, a voidable estate created by a tenant in tail in favour of a purchaser is to be confirmed by a subsequent disposition of such tenant in tail, executed in accordance with the Act, but such confirmation is inoperative as against an intermediate purchaser for value without notice. By s. 39, a base fee, when united with the immediate reversion, is to be considered as enlarged, and not as merged. CONVEYANCES-continued. II. With regard to lands of copyhold tenure-That every actual tenant in tail, (a.) Whose estate is an estate at Law, may by surrender dispose of the entailed lands; and (b.) Whose estate is merely an estate in Equity, may either by surrender or by deed dispose of the entailed lands, s. 50. The protector, if there be any such, either by appointment of the settlor, or in virtue of the Act, may signify his consent to such disposition either (1.) By deed, in which case he must produce the same to the steward of the manor for acknowledgment by the latter, and for entry by him on the Court rolls, s. 51; or (2.) By personal oral statement made to the steward, who shall in the memorandum of surrender to be entered on the Court rolls state that such consent was so given. The deed of disposition, where that form and not a surrender is used, must be executed on or subsequently to the day of the date of the deed whereby the protector signifies his consent, when there is any such latter deed, s. 53; and the deed of disposition must also be entered on the Court rolls of the manor within six months after the execution thereof (Honeywood v. Foster (No. 1), 30 Beav. 1), but no other inrolment of it is necessary; nor is any other inrolment necessary of the memorandum of surrender (where that form and not a deed is used), save only on the Court rolls, 8. 54. III. With reference to bankrupt tenants in tail. By s. 56, in the case of an actual tenant in tail becoming bankrupt after the 31st of December, 1833, the commissioner in bankruptcy (and now the trustee in bankruptcy) may by deed, without the consent of the protector, dispose of the lands entailed to a purchaser for as large an estate as the actual tenant in tail, if not a bankrupt, could without such consent have disposed of the same; and by s. 57, in the case of a tenant in tail entitled to a base fee becoming bankrupt, the commissioner in bankruptcy (and now the trustee in bankruptcy) may, if there is no protector, dispose of the lands entailed to a purchaser for as large an estate as such tenant in tail could, in such case, have created, if not a bankrupt. But, by s. 59, every such deed of disposition must be enrolled within six months from the execution thereof, if of freeholds, in the Court of Chancery, and if of copyholds, in the Court rolls. Also, by ss. 60, 61, the base fee (if any) created in the exercise of the power conferred by s. 56, enlarges into a fee sim CONVEYANCES-continued. ple absolute, so soon as there ceases to be a protector, although that event should not happen until some time subsequent to the date of the sale or conveyance to the purchaser. And, by ss. 62, 63, the disposition under ss. 56, 57 may either confirm or avoid, as the case may be, any voidable disposition made by the bankrupt himself; and the disposition under ss. 56, 57, may even be made, in certain cases, after the decease of the bankrupt (see s. 65). Lastly, when the bankrupt's estate is an estate at law, the deed of disposition under ss. 56, 57 is to have the effect of a surrender (see s. 66). And, generally, by s. 71, all the previous sections of the Act are made to extend to money subject to be invested in the purchase of lands to be entailed, whether such money arises from the sale of other entailed lands or not. (4.) By the stat. 3 & 4 Will. 4. c. 74, ss. 77-91, a married woman, not being tenant in tail, is enabled with her husband's concurrence (and, in certain special cases, without that concurrence), by deed to be acknowledged under the Act, to effect the following purposes: (aa.) To dispose of lands or of any estate therein; (bb.) To dispose of money subject to be invested in lands, or of any estate therein; (cc.) To release powers; and (dd.) To extinguish powers; but in the case of copyholds, where these purposes, or any of them, can be effected by surrender, she is to effect the same by surrender. The deed so to be executed and acknowledged takes effect as from the date of the acknowledgment. (5.) By the stat. 8 & 9 Vict. c. 119, intituled "An Act to facilitate the Conveyance of Real Property," and by numerous other subsequent Acts, certain concise forms of conveyances, leases, and assignments are introduced, which the respective Acts in general present in a schedule, and which they declare shall have the same effect as the longer but more customary forms. CONVICTION. A conviction is defined to be a record of the summary proceedings upon any penal statute, before one or more justices of the peace, or other persons duly authorized, in a case where the offender has been convicted and sentenced, and consists, first, of an information or charge against the defendant; secondly, of a summons or notice of such information, in order that he may make his defence; thirdly, his appearance, or non-appearance; fourthly, his defence, or confession; fifthly, the evidence against him in case he does not confess; |