Co. super Lit.

296,

a release.] Also if a feoffment be made to A. to the use of B. and his heirs upon condition, and before the condition broken, the feoffor and B. do join in the grant of a rent-charge, and after the condition is broken; in this case the law doth interpret this a good grant from B. and a good confirmation of the feoffor, without any words of confirmation. So if *P. 315. tenant for life do grant a rent to him in reversion, and he by deed doth grant it to another and his heirs in fee; in this case, the law doth construe this a good Lit. Sect. 519. grant and a confirmation also. And in these cases of confirmations of estates, [read, a confirmation of estate,] if it be by the disseisee to the disseisor, it is good without any words of heirs; as if the disseisee confirm the estate of the disseisor, or confirm the land unto him, and say not to him and his heirs; this is an effectual confirmation to him and his heirs for ever; [for words of limitation are not necessary when a right only is to be extinguished by confirmation.] And if a lessee for life or a disseisor make a lease for life, or years, &c. and he in the reversion or the disseisee confirm their estates, and not the land, and without any habendum or limitation of estate; this is good for so long as the estates do continue; [that is, it makes the estate during the period originally prescribed for its continuance, indefeasible. To enlarge a particular estate by confirmation, there must be words of limitation.] But it is most safe always, [and in these cases of confirmation of particular estates necessary,] to express the estate, i. e. to say, to have and to hold the land to him and his heirs, or for life, &c. as the agreement is. If lessee for life grant a rent to one and his heirs out of the land, and the lessor doth confirm the estate, or the rentcharge, this doth make the estate of the rent sure [in fee.] And so also if he do confirm the rent, and say, to have and to hold to him and his heirs ; this is a good confirmation. But if he confirm the rent, to have and to hold to him in fee, without naming his heirs, hereby his estate is not made better (4). [See infra, 320, and query this point;

Co. 1. 147.

(4) See accordingly verbatim in 1 Wood, 720. If the student compares this chapter on confirmation, or any other in this book, with the chapter on the same doctrine, in 1 Wood, he will easily discern how much the author of that book stands indebted to the Touchstone. It is to be lamented, that in copying the Touchstone he has very frequently transposed the parts of it, and thereby greatly diminished the order of its beautiful analytic arrangement.

2. To enlarge the

whom it is made.

for if the grantee had a fee in the rent originally,
it would seem that a confirmation of the rent is a
confirmation of the estate in the rent, unless the
operation of the instrument be restrained by words
of limitation. The doctrine of the text proves that
there is at first only an estate for life by the grant,
and that when the fee passes, it is given by force
of the confirmation, and by way of grant.]

If the lessor confirm the estate of his lessee for estate of him to life with this clause, to hold without impeachment of waste; this is a good confirmation to change the quality of the estate so far as to make it dispunishable of waste; [in this respect the instrument operates as a grant of this privilege, and it is observable that this privilege may be annexed to an estate by the original grant, or by a confirmation, or by a separate and independent assurance.] So if the lord paramount confirm the estate of the mesne with clause of acquittal; [in this instance the instrument operates as a release of the rent, services, &c. which are acquitted.] And so if lessee for years, or for another's life, be without impeachment of waste, and the lessor confirm to him for his own life, and omit that clause; hereby this privilege is gone, and the estate is become punishable for the waste; [because the privilege is annexed to an estate which is merged by the accession of a larger estate under the confirmation. 3 Prest. Convey. 166. 273.]

This kind of confirmation crescens must have
all the qualities of the former; and there must be
also in this case a privity between the confirmor
and the confirmee. And then it may enlarge the
estate of him to whom it is made, as from an
estate at will to an estate for years, or to a greater
estate; from an estate for years, to an estate for
life, or to a greater estate; from an estate for life,
to an estate in tail, or in fee; and from an estate
tail, to an estate in fee; and these confirmations
are good; [but, in the instance of an estate tail,
there is rather the addition of a new and distinct
estate than the enlargement of an estate tail; for
the estate tail will not merge, while, in all the other
instances, the particular estate will merge in, or be
absorbed by, the estate taken under the confirma-
tion.]
But in all these kinds of confirmations,
care must be had of the manner of penning them;

Co. 9. 139.
F. N. B. 136.

Co. 8. 76.
Dyer, 10.

Co. 9. 142.
super Lit. 305.
Dyer, 145. 296.
Co. 6. 15.
Lit. Sect. 533-

532.523.

Dyer, 263.

545.

Plow. 540.

and that in every such deed there be a limitation of
the estate; i. e. that these words be inserted, to
have and to hold the tenements, &c. to him and
his heirs; or to him and the heirs of his body; or
to him for term of life, or years; as the agreement
is; for if lessee for life make a lease for years,
and then lessee for life and he in reversion confirm
the land, to have and to hold to him for life, or to.
him and his heirs; these words will make the

Lit. Sect. 524. estate to increase. But if the confirmation be *P. 316. made to the lessee for life or for years of his term or estate, and not of the land, as when he doth confirm his estate, to have and to hold his estate to him and his heirs; this doth not increase the estate; [query at this day.] And yet if he confirm the land, to have and to hold the land to him and his heirs; this will increase the estate, et sic de similibus. [An estate for life may pass by confirmation without words of limitation.]

Co. super Lit.

299.

Plow. 160.

Fitz. Confirmation, 7. 17.

If the husband have an estate of land for life, or years, in the right of his wife; or to them both for Lit. Sect. 525. life, and a confirmation [is made] to him alone of his estate, or of the land, to have and to hold the land to him and his heirs; this is a good conveyance of the fee simple to him after the death of his wife [but there will not be any merger of the estate of freehold. An estate for years would merge. 3 Prest. Convey. 166.] And if I let land to a woman sole for the term of her life, who taketh a husband, and after I do confirm the estate of the husband and wife, to have and to hold for term of their two lives; this is good, but it shall enure only to enlarge his estate for term of his life if he survive his wife, [and not to merge the estate of the wife, and give a new estate to her and her husband by intireties.] But if one lease to another for life, and after confirm the estate of the lessee to him and his wife for term of their two lives; this is void as to his wife, [because the confirmation is confined to his estate; or because there is not any privity between the wife and the confirmor.]

Lit. Sect. 548, 549.

If one grant a rent-charge out of his land for life [by express words, or by the omission of words of inheritance,] and after the grantor confirm the estate of the grantee in the rent without any clause of distress, to have and to hold to him in fee simple, or fee tail; this confirmation is not effectual

3. To diminish or abridge the services, &c.

*P. 317.

to enlarge the estate. [Query, and see p. 315. 320]
But if a man be seised of an old rent-charge or rent-
service, and grant the same first for life, and after
confirm the estate of the grantee in fee simple or
fee tail; this is good, and will enlarge the estate
accordingly; [in one instance there is a rever-
sion of the rent, in the other instance there is
not any reversion.]

If tenant for life grant a rent out of the land, to Co. 1. 147. one and his heirs during the life of the lessee for life, and after the lessor confirm the rent to the grantee and his heirs; it seems the estate is not hereby enlarged, but when the tenant for life doth die the rent shall cease; [because the grantor had not any pretence to claim the rent as a fee in him, since it was expressly confined to the period of the life of the tenant for life. But query, if the intended confirmation would not operate as the grant of a new rent.]

This kind of confirmation may be made by the same words as the former, viz. by the words, give, grant, or demise. But neither of these may be made by the words surrender, release, exchange, or the like: for these are peculiar words destined to a special end, being proper and peculiar manner of conveyances. [This distinction seems to be overruled; Lord Kenyon, as is stated in the chapter on Surrenders, held an instrument, purporting to be a surrender, to operate as a covenant to stand seised.] And yet if I that am a lessor do say to my lessee for years by my deed, I will that you shall hold the land for your life; this is a good confirmation to increase the estate by this word volo only. So if I grant to my lessee for years, that he shall hold the land for term of his life, this, without any other words, is a good confirmation.

301 b.

Co. super Lit. Fitz. Confirmation, 23.

Lit. Sect. 538.

By a confirmation the lord may confirm the Co. 9. 142. estate of his tenant which holdeth by knight's service to hold in socage; or to hold for a less rent; [query, if the ground be not, that all the services incident to a tenure in socage, are included in the tenure by knight's service ;] or to hold at common law, where before he did hold in ancient demesne; and such a confirmation is good. But such a firmation [of a fee,] as is to hold by new services, as a rose for money, or the like, is not good for that purpose. And in this case there must be also a

con

Co. 5. 82. 82.
Lit. Sect. 5. 19.
Co. super Lit.
297.

Lit. Sect. 520.

[Chap. Defeasauce.]

privity. And therefore if there be lord, mesne,
and tenant, and the lord confirm the estate of the
tenant to hold by less services; this is void [as
against the mesne; but query, if it would not
operate, when the mesnalty shall be extinct, by
escheat, release, &c.] And if the lord confirm to
his tenant after he is disseised before his entry, to
hold by less services, this is void. [This is pro-
bably a mistake. See the distinction between
tenant and very tenant. Kitch. fol. 99.]

A confirmation may be by apt words in case of
a lease for years for part of the time, but in case
of a freehold it cannot be so; [for, in point of law,
a term is divisible into portions; but an estate of
freehold is entire; or rather a term of years is con-
sidered as a contract for the possession, and admits
of a modification by defeasance. 1 Inst. 236 b.
This is not the case as to an estate of freehold.]
And so also it may extend to part of the thing
before in estate, [i. e. part of the land, &c. This is
equally true in application to terms of years and to
estates of freehold.] And therefore if a disseisor,
tenant in tail, or husband of the land he hath in
the right of his wife, or lessee for life, make a lease
for years, and the disseisee, issue in tail, wife, or
lessor make a confirmation of all the land for part
of the time, or of part of the land for all the time;
this confimation is good. But if any such person
make a lease for life, gift in tail, &c. the disseisee,
&c. cannot confirm part of the estate but he must
confirm all [the entire estate.] And therefore if he
confirm his estate for one hour, it is a confirmation
of the whole estate. And so also if he confirm the
land to the disseisor himself but [only for] one hour,
one week, one year, or for his life, &c. this is a good
confirmation of the estate for ever. And if it be a
lease for years that is confirmed, care must be had
to the manner of the confirmation; for if the con-
firmation be of the estate or the term for one hour,
this is a good confirmation for the whole time :
and therefore the confirmation must be had of the
land, to have and to hold for part of the term,
[viz. a given number of years ;] and being so made,
it may be good for that time only, and no longer.
[So where a man granted all his term or estate,
habendum from a future day, all the term passed,
and the habendum was rejected as repugnant.

*