much as the mutual confideration is the cause of the warranty, it shall therefore extend only to land reciprocally given, and not to other land; and this warranty runs only in privity, for none fhall vouch by force of it, but the parties to the exchange, or their heirs, and no affignee. 2d, That if A. gives in exchange three acres to B. for other three acres, and afterwards one acre is evicted from B., in that cafe, the whole exchange is defeated, and B. may enter into all his land: for, although the exchange had been good if A. had given but two acres, or but one acre, or less, yet, forafmuch as all the three acres were given in exchange for the others, and the condition which was implied in the exchange was entire, upon the eviction of one acre, the condition, in law, was broken, and therefore entry given into the whole. 3d, That as, when the whole eftate in part was evicted the exchange was defeated; fo, when an estate of freehold for life, which was but parcel of the eftate, was evicted, the exchange was defeated. § 5. Littleton fpeaks of an exchange as of a tranfaction between two; and Mr. Hargrave obferves, that, in a late cafe, it was held, that an exchange, in the ftrict legal fense of the word, could not be between three, the principle of it not being applicable to more than two distinct contracting parties, for want of the mutuality and reciprocity on which its operation fo entirely depends. For, firft, the confideration of an exchange, 1 Inft. 51 a. 7. 1. Who may exchange. 1 Inft. 51 6. exchange, and the implied warranty incident to it, is the receiving fomething with warranty from the fame perfon, to whom fomething with warranty is given; but if there could be three diftinct parties, each would give to one, and receive from another. Secondly, the implied condition of re-entry is, that the re-entry may be made on him whofe title fails; but if there could be three parties to an exchange, then each perfon would be liable to re-entry for the fault of another's title, as well as of his own. § 6. But although there cannot be more than two diftinct parties to an exchange, yet there may be more than two perfons. Thus, Lord Coke fays, that an exchange between two joint-tenants and two tenants in common is good; for, although four perfons are named, yet they conftitute only two diftinct parties: in point of intereft, the two joint-tenants are the conveying parties on the one fide, and the two tenants in common on the other; and, confequently, there is the fame reciprocity, as if the tranfaction was between two perfons only. The fame obfervation applies to any number of perfons, if fo conjoined in the mutuality of giving and receiving in exchange, as to make only two distinct relative parties. § 7. All perfons capable of conveying away their lands, may, of course, exchange them for others; and if an infant exchanges lands, and enters on those acquired by the exchange, and continues to hold them after he attains his full age, the exchange is become perfect, for it was not originally void, because the entry was equivalent to livery, and also in refpect of the recompence, but only voidable. tition. § 8. A partition is a deed by which two or more of a Parjoint-tenants, coparceners, or tenants in common, divide the lands fo held among them into feparate and feveral parts, each taking a distinct part in feveralty. Here, as in fome inftances, there is a unity of intereft, and, in all, a unity of poffeffion, it is neceffary that they should all mutually convey and affure to each other, the feveral eftates which they are to take in severalty under the partition. § 9. By the common law, coparceners being compellable to make partition, might have made it by parol only, but joint-tenants, and tenants in common, must have done it by deed; and, in both cafes, the conveyances must have been perfected by livery of feifin. But the ftatute of frauds has now abolifhed this diftinction, and made a deed equally neceffary in all cafes. § 10. Every partition implies, and has annexed to Vide Tit. 19. it, a warranty in law; and, in all modern deeds of f. 31. partition, there are mutual covenants for the title. § 11. By the common law, where a man had the actual poffeffion and right of property in lands, he could only convey them by feoffment, with livery of feifin; but, as it frequently happened, that the actual poffeffion was in one perfon, and the right of poffeffion or right of property in another, in cafe the person who had the right of poffeffion or right of property was willing to convey those Of a Releafe, Gilb. Ter. 53. Gilb. Ten. 53. f. 4. rights to the person who had the actual poffeffion, it, was done by a discharge of his right to the person in poffeffion; which fpecies of conveyance acquired the name of a release. A feoff.nent would, in fuch a cafe, have been useless, because it could not transfer the poffeffion, as the perfon was in poffeffion already. § 12. A release is, therefore, a conveyance of a right, to a person in poffeffion. Thus, where a man was diffeifed, the diffeifor acquired the poffeffion, and Tit. 29. c. 1. the right of poffeffion and property remained in the diffeifee. Now, if the diffeifee agreed to transfer his rights to the diffeifor, the proper mode of carrying fuch an agreement into execution was, by a release ; for the diffeifor being already in poffeffion, it would have been useless to have made him a feoffment. Operative Words. 1 Inft. 264 b. Lit. f. 508. I Inft. 291 b. § 13. The operative words of a release are, remifisse relaxaffe et quietum clamaffe: remife, release, and for ever quit claim. Befides which, there are other words, fuch as renuntiare, acquietare. And, where a leffor granted to a leffee for life, that he should be discharged of the rent, this was held to amount to a release. § 14. Littleton fays, that a release of all demands is the best and strongest release: and Lord Coke obferves, that the word demand is the strongest word in the law, except the word claim; and that a release of all demands discharges all forts of actions, rights, and titles, conditions, before and after breach, executions, appeals, rents of all kinds, covenants, contracts, recognizances, ftatutes, &c. $ 15. Releases $ 15. Releases of land, in refpect to their opera- Different 1ft, Releases that tion, are divided into four forts. enure by way of mitter L'Estate. enure by way of mitter Le Droit. 2d, Releases that 3d, Releases that Kinds of 1 Int. 193 b. 273 6. enure by enlargement. And, 4th, Releases that enure by extinguishment. Lit. f. 304. § 16. When two or more perfons become feifed of Mitter LEfate. the fame estate by a joint title, either by contract or descent, as joint-tenants, or coparceners, and one of them releases his right to the other, fuch release is said to enure by way of mitter L' Estate. For where two feveral perfons come in by the fame feudal contract, one of them may difcharge to the other the benefit of fuch contract, by a releafe; becaufe no notoriety is needful, for there was a fufficient notoriety in the prior feudal contract. Thus, two coparceners come into Tit. 19. one entire feud, defcending from their ancestor, and, therefore, they may releafe privately to each other, because they take by the former defcent, which established them in poffeffion, without any notoriety. But fince coparceners do alfo tranfmit diftinct eftates to their children, they may also pass their eftates by diftinct feoffments. $ 17. As to joint-tenants, they can only pafs their Idem. eftates to one another by release, for they all come in by the first feudal contract; and, therefore, a fecond Tit. 18. ch. 2. feoffment cannot give any farther title or notoriety, f. 20. because every perfon is fuppofed to be in by his elder title, which, in the cafe of joint-tenants, is the ori VOL. IV. L ginal |