A bargain and sale of an use differs from the covenant to stand seised, as it must be in consideration of money or money's worth, as a horse, rent, &c., though that consideration be only nominal, for there cannot be any averment, as between the parties, contrary to the language of the deed. But if a consideration be given, it may be averred, though it is not expressed in the deed. (a) If the use to be raised by it be for a freehold, it must be enrolled within six lunar months. (b)

There must be a person to stand seised, and therefore, in the case of a corporation, some other mode should be adopted, namely, a feoffment, lease and release, &c. (c)

There must be an estate in the bargainor, of which he has the seisin, as an estate of freehold in possession, reversion, or remainder, not a mere right, contingency, or possibility, and there must be a person capable of taking the use. (d)

If the bargain and sale be of land, it must be by deed indented, and it cannot be made by a deed poll. (e)

A bargain and sale may be made, subject to a condition, and a rent may be reserved on it. (ƒ)

This assurance does not admit of general powers, but admits of future uses. If the use be future, the fee will remain in the bargainor till it can vest in the bargainee.

Bargains and sales of a use must be carefully distinguished from bargains and sales from executors who have an authority to sell, and from commissioners of bankrupt and the like. Such bargains and sales pass a seisin at the common law. (g)

With respect to the operation of a lease and release, a

(a) Churchwardens of St. Saviour's, &c. 10 Rep. 67, b.

release can only be made to a person in the possession, or seisin, of the lands. If a conveyance of the freehold is to be made to a stranger without the formalities of livery, an estate for a year or other definite time may be made to him, in order to give him such estate, and so make him capable of receiving a release. This may be done by a conveyance at common law, or under the statute of uses. (a)

If an estate for a year be granted at common law, the lessee should make an actual entry into the lands before the release be made to him, and this should always be done when a corporation is the grantor, as a corporation cannot be seised to a use. (b)

But in other cases, to avoid the trouble of an actual entry by the grantee, the usual practice now is, to make a bargain and sale by the words bargained and sold." (c)

Bargain and sale, therefore, or the lease for a year, as it is generally called, operates, and the bargainee is in the possession by the statute. The release operates by enlarging the estate or possession of the bargainee to a fee. This is at the common law; and if the use be declared to the releasee in fee simple, it continues an estate at the common law; but if the use is declared to a third person, the statute again intervenes, and annexes or transfers the possession of the releasee to the use of the person to whom the use is declared. (d)

The proper words in the instrument on which the release is to be grounded are, if the instrument is intended to operate as a lease with entry, " demised, leased, and to farm letten," if otherwise, "bargained and sold." (e)

In the former case, a rent should be reserved, though it be a nominal one only, as a peppercorn, if demanded.

In the latter case, the reservation is not material, as the consideration of five shillings is sufficient to raise the use. (a)

SECTION IV.

CONVEYANCES IN THE BRITISH WEST INDIA COLONIES.

I. In Jamaica.-Probate by witness, or acknowledgment by party.— Time within which to be made.-Construction of the acts.

II. Barbadoes.

III. Antigua.

IV. Nevis.

V. St. Christopher's and the Virgin Islands.

VI. Grenada, Tobago, and Dominica.

VII. St. Vincent.

VIII. Bahamas.

IX. Bermuda.

X. Montserrat and Upper Canada.-Memorial of the deed, &c.-Similarity between the acts of these two possessions. In what respects they differ.

XI. Nova Scotia.

XII. New Brunswick.

XIII. Prince Edward's Island.

XIV. The several Colonies in which the Statute of Frauds is in force.-The transfer in Great Britain of slaves in the colonies.

In the transfer of immoveable property, the principles of the law of England and its forms of conveyance, as well those which take effect under the Statute of Uses, as those which are common law assurances, are adopted in Jamaica and the other British possessions in America, except Trinidad, British Guiana, St. Lucia, and Lower Canada.

The probate, acknowledgment, and registration of

(a) Watk. by Prest. 207.

deeds, and the effect of those acts, distinguish the evidence of title in the colonies from that which exists in England.

It is proposed in the present chapter to give a summary of the laws which relate to the probate and acknowledgment of deeds.

I. In Jamaica, a deed, bill of sale, grant, or conveyance, in due form of law made and executed in the colony, and proved or acknowledged, and recorded at length in the office of enrolments, that is, the secretary's office, within the periods prescribed by the registry acts, is valid to pass real estate, without livery of seisin, attornment, or any other act or ceremony whatsoever. It will be seen that this effect, which the law of Jamaica gives to the conveyance, depends on its being proved or acknowledged, and registered or recorded. (a)

The manner and time of registering the deed required by this and the other acts will be considered in the next chapter.

There are several other registry acts which provide for the probate or acknowledgment of deeds executed out of the island, and the time within which they are to be registered.

The clause of the act already referred to relates to those executed in the island, and it requires that they should, within three months after the date, be acknowledged by the parties thereto, or proved by the oath of one or more sufficient witness, or witnesses, either before the governor, or some one of the judges of the court. The subsequent clause relates to those executed out of the island, in any other place than England, and as it has been subsequently extended, it is not here noticed. It then enacts that all deeds and conveyances, where the grantor or conveyancer appears before the lord mayor and aldermen of the city of London, and acknowledges

(a) 33 Car. 2, c. 12, § 1, and c. 22, § 3.

the deed, grant, or conveyance to be his act and deed, and an attested copy thereof made under the seal of the mayoralty, and the same recorded in the secretary's office within the time then prescribed, shall be as valid as those deeds which were proved or acknowledged, and recorded in conformity with the preceding clause. (a)

A deed executed in the island by the attorney being lawfully empowered, and duly proved and recorded before any other deed from his constituent be produced there, proved and recorded, is equally valid and effectual. (b)

The next act provides for the execution of deeds in any of the other islands or colonies, as well as in England, and especially those executed by femes covert, or by any single person. It enacts that if they are acknowledged before the lord mayor of London, or the mayor of any other city in England or Ireland, or before the governor of any of the colonies, and are duly recorded in the island, they shall be good and valid in law against all persons whatsoever, who can or may claim any manner of estate in the real property so conveyed, as fully, to all intents and purposes, as any real estate in England might be passed by fine and recovery duly levied and executed, in any of the courts at Westminster. (c)

The next act extends the period for the recording a deed executed in the colony to ninety days, and of that executed out of the island to six calendar months after its date, and within ninety days after the arrival of the ship which brought it. (d)

This act is important, because instead of confining its provisions to deeds acknowledged, it admits to be recorded and gives efficacy to those which had been proved or acknowledged.

A subsequent act adopts the same language, and gives

(a) 33 Car. 2, c. 12, § 3.

(b) Ib.

(c) 2 Anne, c. 7, § 15, and 10 Anne, c. 12, § 3.

(d) 4 Geo. 2, c. 5, § 5, 7.