Page images

in strict propriety, a deed, though the effects of it are greater than those of a common bond, being allowed a priority in point of payment.

S 22. A recognizance is a lien upon all the lands which the cognizor has at the time he acknowledges it, and also upon all those which he afterwards acquires ; so that no alienation by the cognizor will prevent the cognizee from extending the land.

$ 23. Where a reversion expectant on an estate tail Vide Tit. is falls into possession, it then becomes liable to the re. 1. 31, 32. cognizances, not only of the original donor, but also of all the intermediate heirs who were entitled to such reversion, because it is a direct lien on lands, and differs in that respect from a bond.

S 24. By the statute 29 Cha. 2. c. 3. it is enacted, that no recognizance shall bind lands in the hands of 8 Geo. 1. bona fide purchasers, but from the time of the inroll. 6. 25. . ment.

§ 25. There are two other kinds of recognizances, of a private sort, which are said to be in the nature of a statute merchant and statute staple, which have Vide Tit. 14. been already explained.





Of a Bargain and Sale,

$ 1. Conveyances derived from the 1 $ 15. What may be conveyed by. Statute of Uses.

22. What Cousideration necesary. 3. Of a Bargain and Sale. 26. Must be inrolled. 4. What Words necessary.

34. Exception- Lands in Cities 9. Who may convey by Bargain

and Boroughs. ond Sale.

37. Relation of the lørolment.

Conveyances derived from the Statute of Uses.

Section 1.
ITAVING treated of the several kinds of deeds

which derive their effect from the common law, we now come to explain the nature and effect of those deeds which derive their effect from the statute of uses.

Tit. f. 10.

2. It has been stated in a former title, that the statute of uses has given rise to several new sorts of conveyances which operate contrary to the rules of the common law. The first of these, which operates without any transmutation of poffession, is a bargain and sale to uses, which was well known, and often used before the statute of uses; it being a common practice in those times, for a person who was seised of lands, to bargain and sell them to another; in which case, if the consideration was sufficient to raise a use,


$ Rep. 94 a.

the bargainor became immediately seised to the use of the bargainee : all which might have been transacted without the formality of a deed.

· S 3. A bargain and sale to uses, is a contract by Of a Bargain which a person conveys his lands to another for a pe- and

and Sale.

mother for a pe. 2 Inft. 671. cuniary consideration; in consequence of which, a use arises to the bargainee, and the statute 27 Hen. 8. immediately transfers the legal estate and possession to the bargainee, without any entry or other act on his part.

[ocr errors]
[ocr errors]


[ocr errors]
[ocr errors]


$ 4. The proper and technical words of this con. What Words veyance are, bargain and sell ; but any other words . that would have been sufficient to raise a use, upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale, but proper words of limitation must be inserted.

S 5. Thus, if a man, for money, aliens and grants & Rep. 94 lands to one and his heirs, or in tail, or for life, by deed indented and inrolled, it will amount to a bar. gain and sale, and the land will pass without any livery of seisin.


S 6. So, where a man covenants, in consideration of money, to stand seised to the use of his son in fee; if the deed be inrolled, it is a good bargain and sale, though the words, bargain and sell, be not used.

.$ 7. Edward Fox demised lands to G. Smalmar and Fox'acale, others, for three lives, reserving rent, and, afterwards;

i 8 Rep. 93.


by indenture, in consideration of 50 1. paid him by Thomas Powys, he demised, granted, set, and to farm let to the faid Thomas Powys, the faid tenements, to hold to the said Powys for the term of 99 years, reserving rent, and the first leffee did not attorn. The question was, whether the demise to Powys should amount to a bargain and sale, so that the reversion with the rent should pass to Powys by the statute of uses without any attornment. And it was adjudged, that this demife and grant, in consideration of sol., amounted to a bargain and sale for 99 years, there being no necessity for the precise words bargain and fell. And it was faid, that as uses arise from the intention of the parties, if by any clause in a deed it appears that it was the intent of the parties to pass it in possession by the common law, there no use shall be raised; and, therefore, if any letter of attorney be in the deed or cové. nant, to make livery of the lands according to the form and effect of the deed, or other such like, it shall not pass by way of use.

[ocr errors]

Anon.3 Leon. S 8. Where a deed contained a power of attorney 16.

to make livery of seifin, but was inrolled as a bargain and sale, within a month after its execution, though livery of seisin was given four months after, yet it was held to operate as a bargain and sale, and not as a feoffment.

[blocks in formation]

S 9. With respect to the persons who are capable of conveying their estates by bargain and sale, as this conveyance only transfers a use, none but those who are capable of being feised to a use çan bargain and


sell: for there must be a person seised to a use, and Tit. 11. ch. 3. a use in effe, before the statute can have any operation.

S 10. It follows, that neither the king, the queen, Atkins v.

band. Longvill, . nor a corporation aggregate, can convey their lands

Cro. Ja. so by bargain and sale: but, as all private persons may be feised to a use, they may convey their estates by bargain and sale.

ca. 88.

$11. Jenkins says, that a bargain and sale by the Cent. 6. king for any consideration, to a corporation, is good, although the king cannot stand seised to the use of another; and the consideration of money paid, or mentioned to be paid, although by any stranger, will make the bargain and sale valid.

$ 12. Lord Chief Baron Comyns has said, that a Dig. Tit. corporation may bargain and fell, for they may give

Sale, (B. 3.) a use, though they cannot be seised to a use. This position is founded on the authority of the following case.

$ 13. The Prioress of Hallywell being seised of Holland and Priors, granted the fame by the words dedi et concello Bonis's,

Case, 3 Leon. pro certa pecunia summa, to Lord Audley the chancellor 195. of England, and his heirs. It was objected, that a bargain and sale by a corporation was not good, for a corporation could not be seised to another's use; and the nature of such a conveyance was, to take effect by way of use, in the bargainee, and, afterwards, the statute drew the possession to the use. But the court

i utterly

« PreviousContinue »