CHAP. XXII.

Of a Defeasance.

*THIS in a large sense doth sometimes signify a 1. Defeasance.
condition annexed to an estate; and sometimes Quid.
the condition of an obligation made with, and an- *P. 396.
nexed to, the obligation at the time of making
thereof: but it is more peculiarly and properly
applied to such conditional [and distinct] instru-
ments, as are made in defeasance and avoidance
of statutes and recognizances, at the time of enter-
ing into the same statutes or recognizances; and
to such conditional instruments as are made in
defeasance of statutes, obligations, and the like,
after the time of [at which] the same statutes [are]
entered into, and obligations, &c. made; and it is
therefore defined as follows.

A defeasance is a condition relating to a deed,
[or executory contract,] as to an obligation, recog-
nizance, statute or the like, which being performed,
by the obligor or recognisor, the act is disabled
and made void, as if it had never been done; which
differeth from a condition only in this, that this
[the condition] is always made at the same time,
and annexed to, or inserted in, the same deed, [and
is part thereof; for quæ incontinenti fiunt inesse
videntur;] but that [the defeasance] is always made
in a deed by itself, and for the most part made after
the deed whereunto it hath relation (1).

2. Where and in what cases a

There is no inheritance [or other subject] executory, as rents, annuities, conditions, warranties, defeusance may Covenants, and such like, but may by a defeasance, be; and what made with the mutual consent of all those which feated and avoidwere parties to the creation thereof at the same where, and what [time,] or at any time after, be annulled, discharged not.

ed thereby; and

(1) A defeasance is a collateral deed, made [and declared] at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated or totally undone. 2 Bl. Com. 327. A defeasance on bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it: it differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deed. Ibid. 342. See further as to the nature of defeasance, and what shall be said to amount to one, in Com. Dig. Defeasance (A.); Wood's Inst. 293; Vin. Abr. Defeasance (F.)

*P. 397.

199.]

and defeated. And so is the law of statutes, re-
cognizances, obligations, and the like; yet so, as
in all these cases regularly, the defeasance must be
made eodem modo [by the like solemnity] as the
thing to be defeated was and is created, viz. if the
one be by deed, the other must be so also: for it is
a rule, that in all cases, where any executory thing
is created by a deed, that the same thing, by the
consent of all persons who were parties to the
creation of it, [or at least all those persons who
are interested in the subject to be defeasanced,]
may be by their deed defeated and annulled;
and therefore that warranties, recognizances, rents,
charges, annuities, covenants, leases for years,
[though not leases for lives, (see practical note on [2 Prest.
this point in application to mortgages, and the Convey. 166.
difference between mortgages in fee and for years,)]
uses at common law, [consequently trusts at this
day, and even uses to be executed by the statute
27 Hen. 8, c. 10, while these uses are executory,]
and such like, may, by a defeasance made with
mutual consent of all those that were parties to the
creation of it, [or who are concerned in interest,]
by deed, be discharged and avoided. [And a defeas-
ance by the assignee of a lease for years, to the
assignee of the reversion, will be good; and yet
neither 'of these persons was a party to the con-
tract. So the executor, &c. may defeasance a bond
to the heirs, executors, &c. of the obligee.] Nil est
tam conveniens naturali æquitati quam quod unum-
quodque dissolvi potest eo ligamine quo ligatur. And
therefore by such a defeasance, not only the cove-
nant which doth create a power of revocation, but
the power itself created, may be utterly defeated
and avoided but estates of inheritance and other
estates in tail or for life, [in things lying in livery,
as distinguished from rents, &c.] executed by livery,
&c. [or by grant or by use,] cannot be avoided by
defeasance made after the time of their creation
and first making [or rather vesting.] And yet by
* another deed of defeasance made at the time, [and
under these circumstances, there is a condition, and
not a defeasance, properly so called,] a feoffment,
release, lease for life, or other executed thing, may
be avoided, as well as if it were by condition within
the same deed: as if a disseisee release to the dis-
seisor, this release cannot be defeated by an inden-

Co. 1. 113.

a Bro. Defeas.

12.

Fitz. Barre, 95.

Plow. 393.

с 14 H. 8.

tit. Fait, 10.

ture of defeasance made afterwards; but it may be
defeated by an indenture of defeasance made at
the same time. Quæ incontinenti fiunt inesse
videntur (2). [This proposition is not correctly ex-
pressed; at all events, a release of right cannot be
made on a condition subsequent; that the condi-
tion may be good, it must be precedent. So a de-
feasance or condition may be annexed to a term of
years after its creation." Bul. Nisi Prius, 158;
Co. Litt. 237, a; Yelv. 177. On the subject of
defeasances to declarations of uses and trusts, an
ample discussion, with the more important distinc-
tions, will be found in the 2 Prest. Convey. 166.
199.203.]

a

what not.

of it.

To make a[n effectual] defeasance, these things 3. What shall be said a good are requisite: 1. That the defeasance be made defeasance; and eodem modo, [i. e. by equal solemnity,] as the thing to be defeated is created: for if the obligee by word only discharge the obligor, or grant not to sue him, this will not defeat the obligation; it must be by deed therefore, as the former was. But whether For the manner the deed or defeasance be indented or poll is not material 2. That if it do recite the statute or the obligation, (as for the most part it doth,) that it be done truly for if a defeasance be made of a statute or an obligation, which is recited to be made the 10th day of May, whereas in truth it beareth date the 1st day of May, this defeasance is void, [inasmuch as it refers to that which does not exist; and the date is so material a part of the description, that it cannot be corrected by averment; hence the utility of taking away the materiality of the date, by reciting deeds, as bearing date on or about, &c. This mode lets in an averment of the true date.]

3.

That it be made between the same persons that 10 Bro. Estrang. were parties to the first deed, &c. [or so many of them as are concerned in interest, or their representatives; for it is sufficient that they represent the person, and are privy in point of interest, as heirs, executors and administrators, whether they are by the defeasance to grant or accept the discharge;] and therefore if A. be bound in an obligation to B. in 20l. and B. make a defeasance to C. that if C. pay him 207. the obligation made by

(2) See accordingly and further in 1 Wood, 786; Com. Dig. Defeasanee (B.); Vin. Abr. Defeasance (C.)

A. shall be void; this is no good defeasance,
because it is not made between the same parties.

d And yet if a statute be made to the husband and Bro. tit. De-
wife, and the husband alone, [having acquired the feasance, 3.
right by marriage,] join in the making of a difeas-
ance, this is a good defeasance.

e

4. That it be Bro. Defcas

ance, 5.

made after, [or at the time of, i. e. cotemporaneous with,] the making of the recognizance, obligation, &c. and not before: for if A. grant to B. that if B. will be bound to him in 207. by obligation, that the obligation shall be void; and after B. doth bind himself to A. in an obligation of 207. that defeasance is not good, because it is before the obligation. 'And yet if 'Dyer, 315the date of the defeasance be before the date of the recognizance, &c. and it be delivered after, it is good enough; [because the defeasance (as is the case in regard to all the other deeds) takes effect by delivery, and the time of delivery may be shown; and it may be remarked, that the use of the date is to ascertain the time at which the transaction took place. The presumption of law is, that the time of the date is the time of delivery, but the presumption may be rebutted by proof of the fact; and such proof is admissible.] 5 That it be made of a thing For the matter defeasible: for if a disseisee release his right to the terre-tenant, and after there is a defeasance made between them, that, if the releasor shall pay 20l. to the releasee, the release shall be void; this is a void defeasance. [The true reason seems to be, that a release of a right cannot be on a condition subsequent. See supra, p.323, 397. The reason assigned by Gawdy in his argument, reported by Plowden, is, that the right was extinct before the release was executed.] And yet a release may be avoided, Bro. Defeasby a condition or defeasance made at the time of ance, 6.9. Co. super Lit. making of a release as well as a feoffment; [pro- 236. vided it be a condition annexed to a release, operating in enlargement of an estate.]

of it.

As

h

Plow. 137. Bro. Defeas

ance, 1.

Bro. Defeasance in toto.

If the defeasance of a recognizance, obligation, SeeWest. Symb. &c. be, that if the conusor or obligor, &c. pay a sum of money, or do not disturb the execution of the will of I. S. or do make a lease for years to I. S. or the like; these are good defeasances. if the grantee of a rent-charge grant to his grantor, that if he shall pay him 207. such a day, the grant of the rent shall be void. Albeit the condition of an obligation, that is repugnant to the obligation

20 H. 7. 24. arr

21 H. 7. 32.

Bro. Defea. 4.

7 H. 6. 43.

21 H. 7. 23.

itself, is void, and the obligation single, yet it is

otherwise in case of a defeasance* made after the *P. 398.
obligation; for this is good, notwithstanding it be
repugnant. [This paragraph must be thus under-
stood: a defeasance, as a distinct and subsequent
instrument, may be good, though the same stipula-
tion, if in a condition to the deed, would be
repugnant, and rejected on that account.] And
therefore if the obligee, after the obligation made,
grant by deed to the obligor, that the obligation
shall be void; or that he will not sue the obligation
at all; or that he will not sue the obligation until
such a time; or that the obligation shall be dis-
charged; these defeasances are good to avoid the
obligation. [They are releases rather than defeas-
ances. So a defeasance may be by one of two
obligees. 48 Edw. 3, 12, b.]

If the feoffee with warranty grant, that neither he nor his heirs shall take benefit of the warranty Perk. Sect. 69. of the feoffor or his heirs, this is a good defeasance of the warranty, [or rather a release;] and if he grant, not to vouch, this [grant] will discharge the voucher; and if he grant not to bring a warrantia charta, this will bar him of that remedy, [merely giving a defence against these particular remedies.] In like manner it is, if the grantee of a rent-charge grant to the grantor, that he will not take any benefit by the grant, this is a total discharge, [i. e. a release;] and if he grant, that he will not bring an annuity, this is a discharge of the person, [viz. of that particular remedy;] and if he grant, that he will not distrain the land for the rent, this is a discharge of the land. [All these are, properly speaking, releases and not defeasances; and conditional releases should be distinguished from defeasances. So a covenant not to sue a sole obligor is a release. 2 Roll. Abr. 412, (G.) pl. 4, 5; 1 Inst. 232, a; Dorchester v. Webb, Sir W. Jones, 345; Chatham v. Ward, 1 Bos. & Pull. 630. But an agreement not to sue him within a particular time, or not to sue one of several persons who are joint and several obligors, is merely a defeasance. Dean v. Newhall, 8 Term Rep. 168; Fitzgerald v. Trent, 11 Mod. 253; Lacy v. Kynaston, 1 Lord Raym. 590; Salk. 573. But if the principal be discharged without the consent of a surety, the