utterly rejected the faid exception, as dangerous, for that fuch were the conveyances of the greater part of the poffeffions of monafteries. And it was faid by Serjeant Shuttleworth, that although fuch a corporation could not take an estate to another's use, yet they might charge their own poffeffions with a use to another.

§ 14. This cafe appears to be of doubtful authority, for the only principle upon which it can be fupported, namely, that lands may be charged with a ufe, was 1 Rep. 127 4. utterly rejected in Chudleigh's cafe; in which, it was held, that a use being a confidence and truft, it would

a.

What may be

be an abfurdity to say that it was annexed to the land, or charged on the land, like a rent or common.

S 15. Every eftate of freehold or inheritance in conveyed by. poffeffion in land, may be conveyed by bargain and fale. But it was formerly held, that there must be an actual seifin in the bargainor, at the time when the bargain and fale was made, for, without a feisin, no ufe could arise.

Ante f. 7.

Idem.

S 16. An actual feifin in the bargainor, in order to enable him to convey by bargain and fale, does not, however, feem to be required in many cafes. Thus, it was held in Fox's cafe, that a reversion expectant on a freehold estate might be conveyed by bargain and fale. And it appears to be now admitted, that estates in remainder and reverfion may be conveyed by bargain and fale, provided the right to them be actually vested in the bargainor at the time of the execution

of

of the bargain and fale. And Lord Hardwicke is re- 2 Atk. 15. ported to have faid, that an equity of redemption may be conveyed by bargain and sale.

§ 17. A truft eftate is now frequently conveyed by bargain and fale, and Lord Thurlow is reported to have faid, that, in many acts of parliament, an equitable estate is confidered the fame as if it were a legal estate; that the word feifed, in law or equity, in the qualification act, fhew that the word feifed is applicable to both, and that the word seisin extends to being feifed of an estate in equity.

§ 18. A rent in effe may be conveyed by bargain and fale, as also an advowfon, tithes, or any other incorporeal hereditament, because they are expressly mentioned in the ftatute of uses.

§ 19. Incorporeal hereditaments must, however, be in actual existence at the time, otherwise they will not arife from the bargain and fale.

§ 20. A perfon bargained and fold certain lands to 7. S. in fee, together with a way over other lands. It was held that no right of way paffed, because there was no grant of it in the indenture, but only a bargain and fale of land, and of a way over other land, which. could not be good, for nothing but a use paffed by the deed, and there could not be a ufe of a thing that was not in effe at the time, as a way common, &c. that was newly created; for, until fuch things were created, no use could be raised of them by bargain and fale. S 21. No

VOL. IV.

N

What Confideration neceffary.

§ 21. No chattel intereft in lands can be conveyed by bargain and fale, because the poffeffor of a chattel intereft has no feifin out of which a use can arife. It fhould, however, be observed, that where a person is feifed of the freehold of lands, he may by bargain and fale create a chattel interest out of such lands, for, having a feifin in himself, he is enabled to raise a use for years, as well as for any greater eftate; and, by the very words of the ftatute of uses, the poffeffion is as fully transferred to a ceftui que ufe for years, as to a ceftui que ufe of a freehold interest: nor will, an entry be neceffary in fuch a case to vest the legal estate.

5 22. A bargain and fale is merely a conveyance of a ufe; and as a use cannot be raised without a confideration, it follows, that no bargain and fale can be good without a confideration, which muft alfo be a pecuniary one, for the very name of the conveyance 1 Rep. 176. imports a quid pro quo. But it is not abfolutely neceffary that the confideration fhould be mentioned in the Willes R.677. deed, as an averment of a confideration which is confiftent with the deed is admiffible in evidence.

Ward v. Lambert, Cro. Eliz. 394.

Croffing v.
Scudamore,

1 Vent. 137.

§ 23. A perfon by indenture, reciting, that whereas 7. S. was bound in a recognizance and other bond for him, for divers good caufes and confiderations, bargained and fold lands to him and his heirs. It was proved that there was no money paid, and, therefore, the conveyance was held void as a bargain and fale.

§ 24. A perfon, in, confideration of natural love, and for augmentation of the portion, and preferment

in marriage of his daughter, bargained and fold lands to her. It was determined that the deed could not operate as a bargain and fale, because no pecuniary confideration was given.

Wykes v.
Tyllerd,
Cro. Eliz.

S 25. At common law, no rent could be referved I Inft. 144 a on a bargain and fale, because nothing but a use passed, which was not fuch an estate as the bargainor could have recourse to for a distress: but, after the statute of uses, it was resolved, that a rent might be reserved on a bargain and fale; and that the refervation of fuch rent, would be confidered as a fufficient confideration to raise a use to the bargainee.

595.

rolled.

2 luft. 671. Gilb. Ufes 90.

§ 26. When the statute of uses was made, it was Must be in immediately foreseen, that all lands would thenceforth be conveyed by bargain and fale, being a conveyance of a private nature. To prevent this, the Legislature, in the fame feffions, paffed an act, 27 Hen. 8. c. 16. by which it was enacted, that no manors, lands, tenements, or other hereditaments, fhould pafs from one to another, whereby any estate of inheritance or freehold should be made by reafon of any bargain and fale thereof, except the same bargain and sale be made by writing indented, fealed, and inrolled in one of the king's courts of record at Westminster, or within the county where the lands lie, before the cuftos rotulorum and two justices of the peace, and the clerk of the peace of the fame county, or two of them at the least, whereof the clerk of the peace to be one.

§ 27. This statute requires that all bargains and fales fhall be by deed indented, and the time prescribed N 2

for

2 Inft. 674. 5 Rep. ib. Dyer 218 b.

Hob. 140.

for inrolment is fix lunar months, to be computed from the date of the deed, which is exclufive; and if the deed has no date, then the time must be computed from the delivery.

§ 28. By the statute 5 Eliz. c. 26. bargains and fales affecting lands, tenements, or hereditaments, in the counties palatine of Lancaster, Chester, and the bishopric of Durham, are directed to be inrolled in the respective courts of those counties.

§ 29. By the statute 5 Ann, c. 18. it is enacted, that all bargains and fales of any manors, lands, tenements, and hereditaments lying within the west riding of the county of Tork, which fhall be inrolled before the register at the public office at Wakefield, fhall be as good as if inrolled at Westminster.

$30. By the ftatute 6 Ann, c. 35. f. 16. it is enacted, that all bargains and fales of lands, tenements, and hereditaments lying in the east riding of the county of York, or in the town of Kingston-upon-Hull, which fhall be inrolled at Beverly, fhall be as good as if inrolled at Westminster.

§ 31. There is a clause in this act, f. 30. that in all deeds of bargain and fale inrolled in purfuance thereof, whereby any estate of inheritance in fee-fimple is limited to the bargainee and his heirs, the words grant, bargain, and fell, fhall be exprefs covenants to the bargainee, his heirs and affigns, from the bargainor, that the bargainor, notwithstanding any act done by