CHAPTER V. OF EXCHANGES. Exchangedefinition and requisites of. AN exchange is a common-law assurance between two parties, whereby (as the name imports) hereditaments are exchanged the one for the other (a). To the perfection of an exchange four things are necessary. First, that the estates exchanged be equal in quantity, i. e. a fee simple for a fee simple, or a life estate for a life estate. Equality in value is not necessary; neither is equality in the manner of the estate required, for an exchange between joint-tenants and a sole tenant is good. And although real estate cannot be exchanged for personal, corporeal hereditaments may be exchanged for incorporeal, as land for a rent or common (c). Secondly, that the word exchange" be used; its effect cannot be supplied by any circumlocution, or by any other word. Thirdly, that there be an execution by entry or claim, by each party. Ifeither die before entry or claim, the exchange is void (d). Fourthly, that if the hereditaments to be exchanged lie in different counties, or be incorporeal, the exchange be by deed indented. Since the (a) 2 Bl. Com. 323; Touchst. 289. (b) Co. Litt. 516. (c) Co. Litt. 50. b. Statute of Frauds, all exchanges must be made by writing, and in practice an indenture is invariably used. -cannot be between more An exchange cannot, from its nature, be between more than two parties, although each of those par- than two parties may consist of any number of persons (a). In every exchange there is an implied mutual warranty of title, with a right of re-entry for either party in case of eviction; but such right of re-entry extends only to the parties and their heirs, and not to their assigns (b). The inconvenient consequences of this doctrine have been already pointed out (c), and are so serious, that the right is now generally negatived by an express provision in the deed of exchange. The common-law exchange is, however, an obsolete form of assurance. Exchanges themselves have become much less frequent than in those days when money was scarce and little used; and when an exchange is now made, it is effectuated by mutual conveyances, each in consideration of the other, and each containing the usual covenants for title entered into by vendors with purchasers, and a clause negativing the implied warranty and right of re-entry (d). A power of exchange is always coupled with the power of sale in a settlement, either by deed or will; but exchanges by virtue of such powers are of course (a) Hargr. & Butl. Co. Litt. 50. b., n.(1),51. a., n. (1); Eton College v. The Bishop of Winchester, 3 Wils. 483, 491. (b) Supra, p. 171. (c) Infra, vol. iii. p. 59, n. (h); p. 135, n. (a). (d) Infra, vol. iv. pp. 260, 263. ties. Implied war ranty and right of re-entry in a exchange. common-law Modern method of exchange by mutual con veyances. Law relating to powers of sale and exchange. effectuated by revocation of the old, and appointment of new, uses. It has been suggested, that the use of the words "in exchange" in mutual conveyances and appointments by way of exchange, may cause such of the incidents of a common-law exchange, as the circumstances of the case will admit, to attach to the transaction, at least in equity (a); but it should be understood that this is very doubtful, and at any rate the most convenient course seems to be, to avoid treating such matters in any way as exchanges, and to deal with them as mutual sales and purchases. It has been doubted, however, whether this course can be prudently adopted in an exchange under a power of exchange (b). The points which have occurred on the construction and operation of powers of sale and exchange are fully discussed in 2 Sugd. Pow., chap. xviii, 6th edit.; 2 Chance on Powers, chap. xviii, sect. 1 (c). Exchanges are often made under inclosure acts (d), virtue of certain and by charities and ecclesiastical persons under the statutes which have been passed for enabling them to make such exchanges (e), but these exchanges have none of the incidents of a common-law exchange. Exchanges by statutes. (a) Infra, vol. iii. p. 135, n. infra, p. 438. (a); vol. iv. p. 269, n. (e). (6) 2 Chance on Powers, 382. (c) See, particularly, the subsections, 9 and 10; and see (d) Supra, p. 171. (e) See infra, vol. iv. prec. xx., p. 273, and prec. xxiv., p. 297. 425 CHAPTER VI. OF SETTLEMENTS. Settlements by fee-simple creation of a conditional. THE earliest form of settlement appears to have been the creation of the fee-simple conditional (a). By this means the absolute power of alienation was suspended till the birth of issue, and the estate might be made to devolve through a particular line of heirs in exclusion of others. Thus, an estate might be settled by a person upon his eldest son and the heirs of his body, and in default or failure of such heirs upon his second son and the heirs of his body, and so on upon the other sons successively, and the heirs of their bodies; and on default or failure of all these upon the settlor himself in fee (b). The Statute de of an estate Donis took away the power of alienation, and created the well-known estate called an estate tail (c), and this was probably the only kind of settlement in use from the passing of the Statute de Donis till the invention of the method of barring estates-tail by fine and recovery. The estate was effectually preserved in the line of the settlement, but the power of alienation and re-settlement was totally precluded (d.) (a) 2 Bl. Comm. 110. (b) Hargr. & Butl. Co. Litt. 290. b., n. (1), V. 1. (c) 2 Bl. Comm. 112. (d) Hargr. & Butl. Co. Litt. 290. b., n. (1), V.2 tail. -by means of the statutes 11 Hen. 7, c. 20, and 32 The next kind of settlement, and one which re mained in use for a long time, owed its origin to the Hen. 8, c. 28. stats. 11 Hen. 7, c. 20, and 32 Hen. 8, c. 28. By the former of these statutes, women seised of estatestail of the gift of their husbands (ex provisione viri, as it was called), and by the latter, husbands seised of such estates in right of their wives, were prohibited from alienating them; and therefore it became usual to limit the husband's estate to the husband and wife, and the heirs of the body of the wife by the husband, and the wife's estate to the husband and wife, and the heirs of the body of the husband by the wife. By this means the estates were secured to the parents during their lives, and afterwards to the issue, against the act of either parent alone; nothing but the concurrence of both parents, or the surviving parent, and the issue, could alienate the estate. And as the stat. 32 Hen. 8, c. 28, enabled husbands and wives, and tenants in tail, to grant leases binding on the wives and their heirs, and the issue in tail, it is obvious that this mode of settlement left the parties sufficient power over the estate, while it afforded protection against the extravagance or misconduct of any one party. Mr. Butler, indeed, has suggested (a) that it might well be used at the present day when the property is small, or the length of a modern settlement is for other reasons objectionable, but the suggestion cannot now be acted on as to the husband's estate, because the stat. 11 (a) Hargr. & Butl. Co. Litt. 290. b., n. (1), V. 3. |