Tit. 13. c. 1. $36.

accepts rent after the breach of the condition, he cannot take advantage of it, unless he was ignorant of such breach; in which case acceptance of rent will not bar him.

83. In Pennant's case, the lessee aliened without licence, for which the lessor entered. The lessee said, that before the re-entry, the lessor accepted Roe v. Har- rent; to which the lessor replied, that before the receipt of rent he had no notice of the alienation. It was adjudged for the plaintiff.

rison,

2 Term R. 425..

Goodright v.
Davids,

Cowp. 803.

Who may be
Lessees.

84. But where the lessor has notice of the breach of a condition, and afterwards accepts rent, it will operate as a waiver of the forfeiture, and a confirmation of the lease.

85. In a lease for 21 years, there was a covenant that the lessee should not underlet, assign, or transfer the premises, without the assent of the lessor : with a power of entry in case the lessee did not observe the covenants. The lessee underlet part of the premises, but with the knowledge of the lessor, who accepted rent accrued after such underletting.

Lord Mansfield said, that to construe the acceptance of rent, due since the condition broken, a waiver of the forfeiture, was to construe it according to the intention of the parties. Upon the breach of the condition, the landlord had a right to enter. He had full notice of the breach, and did not take advantage of it, but accepted rent, subsequently accrued; that showed he meant the lease should continue. Cases of forfeiture were not favoured at law; and where the forfeiture was once waived, the Court would not assist it.

86. All persons whatever, though they be idiots, lunatics, infants, or married women, may be lessees; because a lease is always presumed to be beneficial.

Where the lessees labour under any disabilities at the time when the lease is made, they may, upon the removal of their disabilities, avoid such leases; but if they continue to occupy the things demised, after such removal, the lease becomes good.

92)

TITLE XXXII.

DEED.

CHAP. VI.

Of an Exchange, Partition, Release, and Con

Exchange.

§ 62.

1 Inst. 51 b.

SECTION 1.

AN exchange is a mutual grant of equal interests,

the one in consideration of the other; " as if (says Littleton) there be two men, and each of them is seised of one quantity of land in one county, and the one granteth his land to the other, in exchange for the land which the other hath; and in like manner the other granteth his land to the first grantee, in exchange for the land which the first grantor hath."

tò an

2. There are five circumstances necessary exchange: 1. That the estates given be equal. 2. That the word escambium, exchange, be used; which cannot be supplied by any other word, or described by any circumlocution. 3. That there be an execution by entry or claim in the life of the parties. 4. That if it be of things that lie in grant, it be by deed.

5. That if the lands lie in several counties, it be by deed indented; or if the things lie in grant, though they be in one county.

3. With respect to the first of these circumstances, 1 Inst. 50 b. it is only necessary that the equality be in the quan

tity of the estates exchanged; as an estate in fee for Lit. § 64, 5. an estate in fee, an estate for life for an estate for life; and not in the value, quality, or manner of the estate. Therefore an estate in joint tenancy may be exchanged for an estate in common. So lands may be exchanged for rents, commons, or any other inheritance concerning lands. It is said in Bustard's case, that an 4 Rep. 122 b. estate in reversion, expectant on an estate for life, may be given in exchange for land in possession; for in such case the parties are not deceived.

Cro. Eliz.

902.

4. An estate tail may be exchanged for an estate 1 Inst. 50 b. in fee; which will continue good, till avoided by the

issue in tail. A base fee may be exchanged for an 1 Roll. Ab. estate in fee simple.

813.

5. A man may give an estate for life of the donee, Idem. in exchange for an estate for another's life; for the estates are equal, both being estates of freehold. Serjeant Roll says, that an estate for three lives may be given in exchange for an estate for one life; for both are estates of freehold, and so equal.

6. It has been stated, that an exchange between a Tit. 4. tenant in tail after possibility of issue extinct, and a bare tenant for life, is good; for, with respect to duration, their estates are equal.

executed.

Lit. § 62.

7. Since the statute of frauds, every exchange must Must be in be by deed in writing. It must also be executed in Writing, and the lifetime of the parties; for as livery of seisin is not necessary, the parties have no freehold in deed, or in law, in them, till entry. Therefore, if both of the parties die before the entry of either, the exchange is

1 Rep. 98 b. Tit. 29. c. 3.

c. 24.

Who may exchange.

1 Inst. 50 b.

51 b.

Anon.

1 Leon. 285.

void. The heir of one cannot enter and take it as a purchaser, because he is named only to take it by way of limitation of estate, in course of descent. But if one enters, and the other dies before entry, his heir muy enter.

8. Where an exchange is made by lease and release, this inconvenience is prevented; as the statute of uses executes the possession without entry: and all incidents annexed to an exchange at common law, will be preserved.

9. In every deed of exchange there is an implied warranty, arising from the word escambium, of which an account will be given hereafter.

10. All persons who are capable of conveying their lands, may of course exchange them with others. If an infant exchanges lands, enters on those taken in exchange, and continues to hold them after he attains his full age, the exchange becomes perfect: for it was not originally void, because the entry of the infant was equivalent to livery; as well as in respect to the recompence; but only voidable.

11. If husband and wife exchange the lands of the Tit. 35. c. 10. wife, for other lands; the wife may, after her husband's death, avoid the exchange, though she should join with her husband in a fine of the lands taken in exchange. But if the wife agrees to the exchange, after her husband's death, she can never avoid it.

Further's Case, Noy 5. ante, c. 2. §'10.

Can only be between Two Persons.

L

12. After the statutes 1 and 13 Eliz., no exchange of lands belonging to the church, by an ecclesiastic, bound the successor, though a full equivalent were given. But now it is otherwise.

13. Littleton speaks of an exchange as of a transaction between two persons; and Mr. Hargrave says 1 Inst. 50 b. It was held in a late case, that an exchange, in the

n. 1.