in tail in possession; who may, in certain cases, convey the land in fee simple, by adding a warranty to the grant, which, with assets, bars the issue, and without, the heirs in remainder or reversion. By the statute of Gloucester, 6 Ed. 1. c. 3. tenants by curtesy shall not alien their land with warranty, that shall descend on their sons, who are heirs to him and their mother; nor bar them from claiming her inheritance, unless it descend from him. A COVENANT by a person and his heirs is real, and descends upon them, who must perform it if it descend with assets, but not without. A covenant by a person, and his executors or administrators, is personal; and his personal assets are bound by it, in their hands. The former is better than a warranty, though not so much for the acts of the grantor's ancestors as his own, because a warranty extends to every one; inasmuch that covenants, as in modern deeds, supply the place of warranties, as being better for the grantee. When annexed to bargains and sales, releases, and covenants to stand scised, which operate in use, as hereafter explained, they may affect the estate they convey, by a discontinuance of it; because at common law they were voluntary, and cqual to fedal contracts, which prevents the warrantor from claiming, and obliged him to defend it. In short, warranties were lineal, when they descended on an heir who might have claimed the land; collateral, when it was limited to sons successively in tail; for if the eldest aliens with warranty, and die without issue, his next brother will be his heir, which makes the warranty collateral to him. Thus much for the doctrine of warranties; which, though superceded by covenants real, in modern deeds, is useful for the student and practiser to know. The secondary or derivative deed is a

RELEASE, whereby an estate is enlarged, enlarger l'estat; as, when a remainder man releases his right to the particular tenant for life, who must be in possession, or there would be nothing for the release to work upon, or whereby an estate is passed, mittez le droit, as when one coparcener releases her right to the other; and in these there is a privity of estate between the parties, whose rights are so related to each other as to form but one estate; or whereby a right is passed, as when disseizee releases his disscizor; or whereby a right is extinguished, as when a tenant for life grants a lease to A. for life, remainder to B. and his heirs, and C. releases his reversion to A.; or whereby an entry and feoffiment is made; as when a disseizee has been disseized by two joint disseizors, and releases to one, who is seised of the whole, and shall

exclude his companion or disseizor, which is equal to an entry by the disseizee, and making a feoffment to the disseizors. Thus, a person in possession of land must, at common law, convey it by feoffment and livery; but if he have only a right, and not possession, he must convey it by release to the person who has it.

A CONFIRMATION establishes a present interest, whereby a voidable estate is made sure; as, if a tenant for life grant a lease of his land for forty years, and dies in the mean time, the entry of the reversioner renders it void; but if he confirm the lease before the death of the tenant for life, it is sure, and not voidable.

A SURRENDER gives up an estate by a tenant for life or years, to the remainder man or reversioner.

AN ASSIGNMENT passes the whole interest of the assignor to the assignee.

A DEFEASANCE is a collateral deed, made with another, containing conditions which, if performed, annul the estate then created; as, when a mortgagor formerly enfeoffed a mortgagee, who at the same time executed a defeasance, whereby the feoffment was to be void on repayment of the money by a certain day, which defeasance was considered as part of the feoffiment: and these are the secondary or derivative deeds of alienation at common law.

THE CONCLUSION of them all shews the date, though they are good without it, or with an impossible one, if the true one can be proved. They are executed by reading and sealing, signing and delivery, by a grantor to a grantee, or some one for him, until something be done, and is called an escrow; and they are attested by witnesses, which completes them. The remaining deeds of alienation operate under the statute of uses, hereafter explained, previous whereto it is necessary to shew what uses are.

USES and TRUSTS at common law were the same; but since that statute, uses at common law were what trusts are now. The land was conveyed to one or more in confidence, to dispose of it as the grantor dictated; and, in the mean time, for him to receive the rents and profits. They were brought here by the foreign clergy, under our Ed. 3., to avoid mortmain, in taking grants of land to their religious

houses, which the clerical chancellors then executed in equity; but this producing great deceit and inconvenience, the statute 27 H. 8. c. 10. transferred them from the trustees into the possession of the person for whom they were raised, called the cestuy que use, who thence became legal owner of the land. It did not destroy uses, but only the intervening estate of a freehold in the trustees, which they could neither escheat nor alien, discharged of the use; nor could their wives have dower, nor could they hold by curtesy, because it never vested in them. A use need not always take immediate effect, but may wait some future event, in a reasonable time, till when the ancient use remains in the grantor, as in executory devises; which made them cognizable in the common law courts, under the same rules as in equity, but with improvements: but contingent or springing uses differ from executory devises, because the statute executes none, except in the person seised to such uses, who must be living when the contingency falls; and if he destroy his estate before, it is gone for ever; but executory devises pass to the future devisee. In each a fee may be limited on a fee, and a use may spring from one person to another, ex post facto, as secondary or shifting: thus, when A. enfeoffs B. to the use of an intended wife and her eldest son for their lives; she will, on her marriage, take the whole in severalty; and on the birth of her son, it will be executed jointly in both of them. When it expires, or cannot vest, it will result; as, where one enfeoffs another to the use of his intended wife for her life, remainder to her first unborn son in tail; here, until the marriage it results on himself; or, if it be executed in her for life, and she die without leaving a son, it will result on him as if it had never been created. It may also be revoked under a power given for that purpose; but a defeasance of it was only allowed at common law, commencing with the grant, and expressed therein on certain events, which limited the control of courts of equity over it; yet the courts of law restored their cognizance, with an increase of authority; holding that a use could not be limited on a use, though, when it was executed in one person, he immediately became seised to the use of another, which the statute equally executed. Not, however, extending to terms for years, whereof a lessee was not seised, equity held, that as a feoffee to uses was not to have any benefit, and that this statute could not execute them of terms at law, they were trusts, which conscience ought to perform. If land is conveyed to a person, in trust to receive and pay rents to another, or to pay taxes, or to repair, &c. the use is not exe

cuted by the statute, but the land continues in the trustee, or he could not perform the trust. By the 29 Ch. 2. c. 3. all trusts must be declared in writing. Estates in use are now deemed legal; they can neither escheat, or be forfeited by a trustee, nor aliened discharged of his trust; they are not subject to dower for his wife, because his seizen is but momentary, and no sooner exists but it dies, like a shadow by its substance; nor can they be devised by will. The trustee is only an instrument, a machine, and cannot alien but for value, without notice; which, as the cestuy que use is usually in possession, can seldom happen. They also descend, may be aliened, are liable to debts, forfeiture, leases, and curtesy, as at common law; but not to dower, which is a legal estate yet, since the statute which made them legal and not equitable, the doctrine that they are not liable to dower is open to objection and controversy. Uses give effect to modern conveyances, by making the notoriety of livery and seizen unnecessary. Nevertheless, their secrecy in operation was wisely checked by various occasional statutes, from the time of H.8. to the present reign, which require a registry in certain cases, and in certain places. These brought forward

A DEED OF COVENANT to stand seised to certain uses expressed, on good consideration, or marriage, which is valuable only for the benefit of wives, children, or kindred, either for life, in tail, or fee simple, which the statute immediately executes,

Also, A DEED OF BARGAIN AND SALE, as a real contract, which makes the bargainer a trustee for a valuable instead of a good consideration, for the bargainee, which the statute executes; but this, by a statute in the same sessions of the 27 H. 8. must be enrolled in Chancery, in six months after its date, except of interests for years, which brought in a

* Trusts are the consequence of the statute of uses, which before were executed in equity. At common law a trustee was owner of the land, and did the fedal duties, his wife was entitled to dower, and his infant heir was in wardship to the lord. If he was attainted, the land was forfeited; but this statute joining the use and possession togother, executed it; and seizen remained in the trustee until a contingent person came into being, without affecting the legal fee.

+ When land was occupied, and livery could not be made, the reversion was granted the bargainee, to whom the tenant attorned. The reversion wanting no livery, a particular estate was raised on which it should depend; and then a re lease of it to the particular tenant vested the entire fee in him.

LEASE and RELEASE. The lease is a bargain and sale for a year to the bargainee or lessee, who, being entitled to the use, the statute executes it in possession, and thence enables him to take a release of the reversion in fee simple; but at common law, a lessee must enter on the land before he coul ake a release.

DEEDS to lead or declare uses are incident to fines and recoveries, of which more hereafter.

DEEDS to revoke uses are grounded on powers in some that are prior. The other assurances are of record, as, the king's grants, statutes, surrenders of copyhold estates to uses, fines and recoveries.

A FINE is a feoffment recorded in the Court of Common Pleas, the only court in which real actions are prosecuted or defended. It is an acknowledgment that the demandant of the land has a right to it. When executed, it gives the demandant immediate possession; when executory, it enables him to gain it by a writ of habere facias seizinam. It is called a fine, finis, because it puts an end to a feigned action of covenant. In H. 2.'s time it was an actual concord of a real suit; but since then it has been fictitious, as a more sure conveyance than a feoffiment, which was liable to be lost, and often difficult to be proved. Being a judgment on record, it proved itself. The writ whereby the suit is begun is issued against A., requiring him to perform his covenant with B. of ten acres of land in Surry, or shew the court a reason to the contrary, in a given time. On this they compromise, paying a fine to the king for his licence to agree, and another to alienate. This ends the suit; after which their concord is made out, stating that A. has acknowledged the ten acres of land to be the right of B., which he hath of the gift of A.; and that those he hath remised and quitted claim to from him and his heirs to B. and his heirs for ever. further, that A. and his heirs hath granted that he will warrant to B. and his heirs the ten acres of land against all men for ever; and that for the recognition, remise, quitting claim, warranty, fine, and agreement, B. hath given A. 1007. sterling. A note or abstract of this record is then made out, as between A. the complainant, and B. the deforciant, so called because kept out of possession of the land by presumed force, whereon a plea of covenant was summoned between them, to wit, that A. had acknowledged the land to be the right of B., as those which he had of the gift of A.,

And