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by these presents doth grant, alien, release, and confirm (i);
the ancient mode of conveyance by livery of seisin, with a charter of disposition by wife.
feoffment to preserve the evidence of the livery having been made. The charter witnessed that the feoffor “hath enfeoffed or given or granted,” and generally added" and by these presents hath confirmed unto” &c. (See West's Symbolography, (edit. 1615), sect. 238; et seq; 2 Black. Com. App. No. 1). And, doubtless, this form was more sensible than the one which is now used, because, as nothing is now done to pass the estate before the deed of conveyance, words in the present tense ought alone to be used. It has not been deemed proper in the present work to introduce so great an alteration as the omission of the past tenses of the operative words would be; but the reader may feel assured, that if he wish to shorten the forms, he may, with the most complete safety, discard the past tense, and use the present tense alone. It is much to be deplored that the repetition
now in use, is not abolished by the general consent of the profession. « В
(i) The operative words which have been usually employed in sell”-impro
conveyances of freehold hereditaments, are “grant, bargain, sell, per operative words in a re
alien, release, and confirm,” but after much consideration, and with lease.
the approbation of several conveyancing counsel of eminence, the editor has determined to dispense with the indiscriminate employment in this work of the words “ bargain and sell,” and to reserve their application for the cases for which they are appropriate.
As the statute 27 Hen. 8, c. 16, enacts that no freehold estate shall pass by bargain and sale, unless the bargain and sale be inrolled within six months after the date thereof, and as a bargain and sale vests the legal estate in the bargainee, and renders the subsequent estates equitable, it is evident that a modern release not being inrolled, cannot operate as a bargain and sale; and that if it could so operate, it would totally frustrate the designs of the parties. Hence, it is manifest that the employment of the words “bargain and sell” in a release, is altogether superfluous and erroneous, and it is for this reason, that they are omitted in these precedents. Of course, the nominal consideration is also omitted, as that was introduced simply
for the purpose of rendering the release operative as a bargain and sale. Lease for a A lease for a year is a proper bargain and sale, and not being a conyear a bargain veyance of freehold estate, does not require to be inrolled; the words and sale.
bargain and sell should be retained in it, and the nominal consideration
is essential to its effect. Bargain and So the words bargain and sell should be retained in a grant of any sell to be used term of years for mortgage or otherwise, because, in that case, they in the creation of terms of
are operative, and if there be no actual valuable consideration for the years.
grant, a nominal consideration must be named. Bargain and The words bargain and sell were formerly used in all assignments sell- omitted of torms of voor
of terms of years, leases, and other personal property, and a nominal in assignments.
and the said E. B. (k), with the concurrence of the said A. B., (testified by his being a party to and executing
consideration was expressed to be paid by the assignee to the assignor. But this was a mere inoperative perversion of the employment of the nominal consideration, and bargain and sale, and the most approved modern practice is to omit the words referred to, and to treat the instrument as (what it really is) a mere assignment in which the sufficient and operative word, is the word “ assign.” Sometimes “assign and transfer" are used, but in this collection the word “assign" alone is employed in all assignments of personal property.
The words “ bargain and sell ” are employed in another class of Bargain and instruments with quite a different meaning, being the usual words sale at common
law. for the execution of common law authorities. Thus executors having a power to sell real estate, convey it by the words “bargain and sell; ” commissioners of bankrupts conveying copyholds in pursuance of the statutes, convey by the words “bargain and sell.” The effect of the words in those cases is not at all analogous to the effect of them in a common bargain and sale operating under the statute of uses, but merely designates the parties to whom the executors and commissioners have agreed to sell, and who take under the instrument or statute by which the authority was created. The common law bargain and sale, of course, raises a seisin on which uses may be declared. There does not seem any thing peculiarly appropriate in the use of the words “bargain and sell ” for the execution of common law authorities, but as there is no objection to their employment, and as they are the customary words, it is fitting in such cases to retain them.
With respect to the other operative words employed, it may be Remarks on observed, that the word “grant” is the appropriate word for passing the other opeany estate in reversion, or which does not lie in livery, that the word rative words. “alien" is the general term of the English law for absolutely parting with the whole estate; (see Jacob's Law Dictionary, Alienation); and the word “release” is the essential word which operates to enlarge to a fee-simple, the estate created by the bargain and sale for a year. “Release” has, in fact, become the word by which nearly every kind of interest in freehold estate is conveyed, and is used on almost every occasion. The word “confirm” is appropriate where there has been a previous conveyance in the same or any other instrument of the property confirmed, (see the next Precedent), but is not very applicable to a case where there is one conveyance only, by only one set of operative words. It has, however, been retained in these precedents.
(k) The vendor being seised in fee-simple in possession of the pro- Mode of barperty conveyed, his wife, if she survived him, would be dowable out ring dower un
der the statute, of the property, and hence, in pursuance of the power given to her by the statute 3 & 4 Will. 4, c. 74, s. 77, she joins in the convevance
CONVEYANCE these presents), and for the purpose of releasing and
extinguishing her right of dower of or in the hereditaments
hereinafter mentioned, doth, by this present deed, release Lease for a and dispose of, unto the said C. D. (in his actual possession
now being, by virtue of a bargain and sale thereof to him made by the said A. B., in consideration of five shillings, by indenture bearing date the day next before the day of the date of these presents, for the term of one whole year, commencing from the day next before the day of the date of the said indenture of bargain and sale, and by force of the statute made for tranferring uses into possession (1) ),
to extinguish her right of dower. It was objected soon after the passing of the statute, that the above section did not enable a married woman to release her dower during her husband's life, because during his life, it was a mere right and not an estate. But the objection does not appear to have any force, and has been disregarded by conveyancers.
The statute requires that the husband shall concur in the deed, and that the wife shall acknowledge it; the new operative words “ dispose of,” are used in the statute together with “release" and some other words. It is the practice to use only the present tense for the conveyances of married women on the same principle as in the case of appointments; viz. that it is impossible that the act of conveyance can have been done previously to or otherwise than by the deed.
The mode of acknowledgment is pointed out in the above statute, sect. 79—91, and in the General Rules made by the court of Common Pleas, 10 Bing. 458—463. As to taking acknowledgments in foreign countries, see Ex parte Birch and Dell, 4 Bing. N. C. 394; and in Ireland, Ex parte Anderson, 2 Bing. N. C. 435. A married woman, trustee conveying by order of the Court of Chancery, will be permitted, although under age, to acknowledge her deed. (In re Luke, 1 Bing. N. C. 465). Commissioners taking an acknowledgment, have a lien for their fees on the documents. (Ex parte Grove, 3 Bing. N. C. 304). As to who may make the affidavit of acknowledgment, see In the matter of Ann Scholfield, 3 Bing. N. C. 293. Some draftsmen make the husband covenant that his wife shall acknowledge the deed, but this is needless, for as the acknowledgment is, in fact, part of the conveyance, and is essential to its efficacy, the purchase-money should not be paid before the acknowledgment by the vendor's wife any more than before the execution by the vendor.
Lease for a year;
(1) In order to create a valid lease for a year, on which the release may operate, it is only essential, that the person having the legal estate of freehold, should be the bargainor; but, in practice, it is
and his heirs, All &c. (parcels) (m), TOGETHER WITH all conveyance meadows, common of pasture, and other commons, mines, -
in General words usual to make all the parties, who join in the release, bargainors in the lease for a year. This is done, in order to guard against the -by whom chance of the legal estate of freehold being in any of the parties, other made. than the party in whom it appears to be. Of course, the term of one year is merely arbitrary; any term, greater or less, is sufficient to create the reversion required, neither is it essential that the lease for a year should be dated the day before the release; it is sufficient that at the date of the release, there is a subsisting term. The bargain and sale for the year should always be made to the releasee, but if it — to whom ; were made to any other person, the reversion would pass by the release, operating as a grant; the only inconvenience would be, that the legal estate for the one year would be outstanding in the bargainee. As has been previously observed, it is essential to express a consideration valuable consideration in the lease for a year, because the instrument of; is, in fact, a bargain and sale, and it could not operate as such, without the expression of a valuable consideration. But the sum stated, need not be paid. (See 2 Sanders on Uses, 46, 47; 4 Cru. Dig. 101, 115).
The pareels in the lease for a year are the same as those in the --parcels of. release.
For further information on the nature and operation of the lease for a year, and of the conveyance by lease and release, see 2 Black. Com, 339; 2 Sand. on Uses, 60; 4 Cru. Dig. 113. Forms of the lease for a year are so common, that it has not been deemed needful to incumber the present work with them. They may be found in 2 Black. Com. App. II. ; 2 Sand. on Uses, 134.
(m) In all assurances of corporeal hereditaments, general words General words. are inserted immediately after the parcels, for the purpose of including in the assurance all the easements and rights appertaining to the property assured. (See next Precedent, note (h)). There are four forms of these words in use, adapted to the several cases of assurances of “lands”—“messuages and lands—messuages in towns,” and manors; these forms are given in this and the three following precedents. In the other precedents they are referred to, and when so referred to, the subsequent clauses, beginning, “And the reversion,” and “ And all the estate,” are to be considered and used as part of the general words, unless a special exception is made.
The purpose and effect of these latter clauses is not very obvious, but as they are always used, (except in special cases), it is desirable, in conformity with the practice of the profession, to retain them. If a term be subsisting in any of the grantors, it will pass to the releasee by the effect of these general words.
The clause, granting the title deeds, which was formerly inserted, is now omitted. (See ante, note (a), pp. 44, 45).
CONVEYANCE minerals, quarries, furzes, trees, woods, underwoods, cop
pices, and the ground and soil thereof, mounds, fences, hedges, ditches, ways, waters, watercourses, liberties, privileges, easements, profits, commodities, emoluments, hereditaments, and appurtenances whatsoever, to the said pieces or parcels of land, hereditaments, and premises belonging or in anywise appertaining, or with the same or any of them respectively, now or at any time heretofore demised, leased, held, used, occupied, or enjoyed or accepted, reputed (n), deemed, taken, or known as part, parcel, or member of
them or any of them, or any part of them, or appurtenant And the rever- thereto, with their and every of their appurtenances ; AND sion, &c.
THE REVERSION and reversions, remainder and remainders, yearly and other rents, issues, and profits of all and singular the said pieces or parcels of land, hereditaments, and premises
hereby granted and released, or expressed and intended so And all the es- to be; AND ALL THE ESTATE, right, title, interest, inheritate, &c.
tance, reversion, use, trust, possession, property, claim, and demand whatsoever, both at law and in equity, of them, the said A. B. and E. B., and each of them, of, in, to, out
of, and upon the said premises, and every part and parcel Habendum.
thereof: To have and To hold the said pieces or parcels of land and hereditaments, and all and singular other the premises hereby granted and released, or expressed and intended so to be (0), unto the said C. D., his heirs and assigns, to the use of the said C. D., his heirs
Form of the habendum.
(n) With respect to the effect of these words, and what evidence is admissible in support of them, see Murley v. M Dermott, 3 Nev. & Per. 356.
(0) The habendum should briefly enumerate the hereditaments granted as “messuages,” “pieces or parcels of land,” &c., and conclude with the general expression, “all and singular other the premises hereby granted” &c. For unless the habendum be made the exact echo of the operative part, there is a great risk that they may not agree, and that the description expressed in the one, may be qualified or altered by that contained in the other.
The word “premises,” in strictness, applies to what has gone before; and, therefore, is not used in well-drawn instruments, except in reference to that which has been previously described. It should not be used before the habendum, unless the parcels are described in the recitals.
It is a common custom to add, “ with the appurtenances;" but this
Use of the word "premises."