TESTIMONIUM-ATTESTATION.

receipt by a formal discharge (see the old form in Stud. Prec. 128); but as this is unnecessary, it is better omitted.

The Stamp Act, 1891 (54 & 55 Vict. c. 39), s. 5, imposes a penalty of £10 on any person who with intent to defraud the Crown executes or is employed or concerned in or about the execution or preparation of any instrument in which all the facts and circumstances affecting the liability of the instrument to or the amount of ad valorem duty chargeable are not fully and truly set forth. impose a penalty on intentional consideration.

The effect of this is to

omission to state the

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testation.

The testimonium and attestation, which are not necessary Testimoparts of the deed (n), are rarely inserted by the draftsman, um, atunless they are required to be of a special form. In cases where it is necessary to have the execution of the deed attested in some particular manner, it is improper to refer to it in the operative part of the deed, though this is sometimes done by the words :-" doth hereby by this indenture, the execution and delivery whereof are intended to be attested by two credible witnesses." The insertion of

these words is quite useless; for the mere intention to have the execution of a deed witnessed in a particular manner is a different thing from having it actually done; and the words, being useless, should, according to the general rule, be omitted. In those cases where the deed has to be executed in a particular manner, attention should be called to the point by a marginal note on the draft.

(n) Co. Lit. 7a; Burdett v. Spilsbury, 6 Man. & Gr. 457; Garrett v. Lister, 1 Lev. 25; Shep. Touch. 55.

CHAPTER V.

Kinds of conveyances.

PURCHASE DEEDS OF INTERESTS IN LAND.

WE propose to discuss in this chapter conveyances; first, on the sale of freeholds, and second, on the sale of other interests in land, by a person under no disability; and to consider, subsequently, how the form of the conveyance depends on the status of the conveying parties.

Conveyances of the following classes are still to be met with in abstracts:

·

1. Feoffment with livery.

2. Lease and Release.

3. Bargain and Sale, inrolled under 27 Hen. 8, c. 16.
4. Covenant to stand seised.

5. A release made in pursuance of an Act of Parliament intituled An Act for rendering a release as effectual for the Conveyance of Freehold Estates as a Lease and Release by the same parties. See 4 & 5 Vict. c. 21 (repealed by the Statute Law Revision Act, 1874 (No. 2)).

6. A deed of grant.

7. An appointment under a power.

8. Fines.

9. Recoveries.

But although all these, except the fifth and last two, may be used at the present day, conveyancers rarely employ any except a deed of grant, or an appointment under a power.

Assurances of freeholds may be divided into two classes: -first, where the legal estate passes without the operation of the Statute of Uses; and second, where the conveyance operates as a declaration of the use only, so that the legal estate passes by virtue of the Statute of Uses. Assurances

FEOFFMENT.

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mutation of

sion."

of the former class are said to operate by "transmutation "Transof possession" (see this fully discussed, M. L. R. P. 372). possesThe distinction is important for conveyancing purposes. Where a conveyance operating by transmutation of possession is made to A. in fee simple, and uses are declared on his seisin in favour of B., B. takes the legal estate by virtue of the Statute of Uses; but if the conveyance to A. merely operates as a declaration of the use, so that A. takes the legal estate by virtue of the Statute of Uses, and uses are by the same conveyance declared in favour of B., B.'s estate is equitable. only, for "there cannot be a use upon a use (ante, p. 10). First.-A feoffment with livery. This is the best possible Feoffment. example of a conveyance operating by transmutation of possession, because the conveyance is effected by the livery, i.e., by the delivery of seisin or change of possession only. The accompanying deed, called a charter of feoffment, was formerly of use only as bearing witness of what had already happened, and accordingly the operative words were in the past tense, but were repeated in the present tense, for the sake of confirming the feoffment. "The [feoffor] hath granted, enfeoffed, and confirmed, and by these presents doth grant, enfeoff, and confirm unto," &c. (See form in Stud. Prec. 128.)

The Statute of Frauds (29 Car. 2, c. 3) rendered it necessary that a writing should be signed by the feoffor or his agent duly appointed: and the Real Property Act, 1845 (8 & 9 Vict. c. 106), renders every feoffment (except a feoffment made under a custom by an infant) void unless evidenced by deed.

of feoff

Formerly, if a tenant for life or years, made a feoffment, Tortious or even, it is said (4 Byth. by Sweet, "Feoffment," 43), if operation a person having no estate or interest in the land, but mere ment. naked possession, made a feoffment; the feoffee acquired a fee simple (a). This operation of a feoffment, called a "tortious" operation (Taylor d. Atkyns v. Horde, 2 Sm. L. C.), was

(a) A disseisee might in certain cases reacquire his seisin by entry

or action.

Lease and release.

Bargain

and sale.

Covenant

to stand seised.

made use of in conveyancing for various purposes (which are discussed in 4 Byth. by Sweet, "Feoffment "), but, as this operation has been abolished by the Real Property Act, 1845,, it is unnecessary to discuss it here (b).

It is, perhaps, necessary to remind the reader that, while a feoffment can be made of corporeal hereditaments only, a feoffment of corporeal hereditaments will pass incorporeal hereditaments appurtenant to them. The object of using the word "grant" in the charter of feoffment was to pass any incorporeal hereditaments, which, not being strictly appurtenant to the land, did not pass by the feoffment. Butler, Co. Lit. 384 a, n.

As a feoffment is a conveyance operating at Common Law, uses can be declared on the seisin of the feoffee in favour of other persons, and they become seised of the land by virtue of the Statute of Uses.

Second. A conveyance by lease and release (Stud. Prec. 141). The operation of this has already been described (ante, p. 13). It was the most common form of conveyance until the year 1841, when it fell into disuse, as by 4 & 5 Vict. c. 21, a release expressed to be made in pursuance of the Act (see form in Stud. Prec. 145) had the same effect as a release founded on a lease for a year.

Third. A bargain and sale inrolled under 27 Hen. 8, c. 16. The effect of this has been already explained (ante, p. 12). It must be remembered that as the operation of a conveyance by bargain and sale inrolled depends upon the Statute of Uses, if any uses are declared on the seisin of the bargainee, these being uses upon a use are not executed by the statute, and the cestui que use will take an equitable interest only.

Fourth.-A covenant to stand seised. (See form in Stud. Prec. 146.) Here the consideration is natural love and affection, which, as already pointed out (ante, p. 71), is sufficient consideration to support a use.

As has already been stated, a bargain and sale inrolled, (b) See Leake, Law of Prop. in Land, 57; Challis, R. P. 371.

COVENANT TO STAND SEISED-GRANT.

and a covenant to stand seised, differ in their operation from
the other modes of conveyance. Before the Statute of Uses
no estate passed by a bargain and sale, or a covenant to
stand seised; all that passed was "a use," that is, a trust
enforceable in Equity. A bargain and sale, it will be
remembered, was simply a contract to sell land for money,
while a covenant to stand seised was where a man wished
to provide for his relations, and covenanted that on account
of his "natural love and affection" he would stand seised to
their use.
In neither of these cases did any legal interest
in the land pass; only the use passed; but when the
Statute of Uses came into operation, it transferred the
legal estate to the cestui que use, the person who was
entitled to enjoy the use.

Fifth. The statutory release under 4 & 5 Vict. c. 21, had the same effect as a release founded on a lease.

Sixth. A deed of grant, which was formerly the proper Grant. method of conveying remainders and reversions, and other incorporeal hereditaments, has now (owing to the Real Property Act, 1845, 8 & 9 Vict. c. 106, which enacts that all corporeal hereditaments shall lie in grant) superseded all other deeds for the purpose of conveying estates of freehold (whether in corporeal or incorporeal hereditaments), except a bargain and sale by executors at Common Law, and an appointment under a power.

In a well-known text-book, a grant to uses is classed among the deeds that take effect under the Statute of Uses. This is an error, for the effect of the deed in conveying the legal estate in corporeal hereditaments depends upon the Real Property Act, 1845, not upon the Statute of Uses. No doubt uses may be declared on the seisin of the grantee, and then the Statute of Uses vests the legal estate in the cestui que use, if he be a different person from the grantee. But, according to the classification commonly adopted by conveyancers, a deed of grant is one that operates by transmutation of possession, as distinguished from those which take effect under the Statute of Uses.

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