Lease and release an innocent conveyance. Bargain and sale. present conciseness would long continue?-unless indeed the rate of payment were fixed so high as to leave the average remuneration the same as at present. Thestudent must, therefore, make up his mind to find in legal instruments a considerable amount of verbiage; at the same time he should be careful not to confound this with that formal and orderly style, which facilitates the lawyer's perusal of deeds, or with that repetition which is often necessary to exactness without the dangerous aid of stops. The form of a purchase-deed, which has been given above, is disencumbered of the usual verbiage, whilst, at the same time, it preserves the regular and orderly arrangement of its parts. A similar conveyance by lease and release, in the old established common forms, will be found in the Appendix (1). To return:-A lease and release is said to be an innocent conveyance; for, when by means of the lease and the Statute of Uses, the purchaser has once been put into possession, he obtains the fee simple by the release; and a release never operates by wrong, as a feoffment occasionally did (m), but simply passes that which may lawfully and rightfully be conveyed (n). Thus, if a tenant merely for his own life should, by a lease and release, purport to convey to another an estate in fee simple, his own life interest only would pass, and no injury would be done to the reversioner. In addition to a conveyance taking effect as a lease and release, other methods are occasionally employed. Thus, there may be a bargain and sale of an estate in fee simple, by deed duly inrolled pursuant to the statute 27 Hen. VIII. c. 16, already mentioned (0). In this (1) See Appendix, (A.) (0) Ante, p. 135. The indenting required by that statute is now unnecessary; stat. 7 & 8 12 made to one case, as we have seen (p), the whole fee simple passes by means of the Statute of Uses,-the bargainor becoming seised to the use of the bargainee and his heirs. A bargain and sale, therefore, cannot, like a lease and Cannot be release, be made to one person to the use of another; person to the for, the whole force of the Statute of Uses is already use of another. exhausted in transferring the fee simple to the bargainee (q). Similar to a bargain and sale, is another method of conveyance occasionally, though very rarely, employed, namely, a covenant to stand seised to the use Covenant to of another, in consideration of blood or marriage. In addition to these methods, there may be a conveyance by appointment of a use, under a power of appointment, Appointment. of which more will be said in a future chapter (r). The student, indeed, can never be too careful to avoid supposing that, when he has read and understood a chapter of the present, or any other elementary work, he is therefore acquainted with all that is to be known on the subject. To place him in a position to comprehend more, is all that can be attempted in a first book. Vict. c. 76, s. 11. The chief advantage of a bargain and sale is, that by stat. 10 Anne, c. 18, s. 3, an office copy of the inrolment of a bargain and sale is made as good evidence as the original deed. (p) Ante, p. 134. stand seised. CHAPTER X. OF A WILL OF LANDS. THE right of testamentary alienation of lands, is a matter depending upon act of parliament. We have seen, that previously to the reign of Henry VIII. an estate in fee simple, if not disposed of in the lifetime of the owner, descended, on his death, to his heir at law (a). To this rule, gavelkind lands, and lands in a few favoured boroughs, formed exceptions; and the hardship of the rule was latterly somewhat mitigated by the prevalence of conveyances to uses; for, the Court of Chancery allowed the use to be devised by will (b). But when the Statute of Uses (c) came into operation, and all uses were turned into legal estates, the title of the heir again prevailed, and the inconvenience of the want of testamentary power then began to be felt. To remedy Statute of Wills. this inconvenience, an act of parliament (d), to which we have before referred (e), was passed six years after the enactment of the Statute of Uses. By this act, every person having any lands or hereditaments holden in socage, or in the nature of socage tenure, was enabled, by his last will and testament in writing, to give and devise the same at his will and pleasure; and those, who had estates in fee simple in lands held by knights' service, were enabled, in the same way, to give and devise two third parts thereof. When, by the statute of 12 Car. II. c. 24 (ƒ), socage was made the (a) Ante, pp. 49, 51, 52. (c) Stat. 27 Hen. VIII. c. 10; (d) 32 Hen. VIII. c. 1, ex plained by statute 34 & 35 Hen. (e) Ante, p. 52. Frauds. universal tenure, all estates in fee simple became at once devisable, being all then holden by socage. This extensive power of devising lands by a mere writing unattested, was soon curtailed by the Statute of The Statute of Frauds (g), which required that all devises and bequests of any lands or tenements, devisable either by statute, or the custom of Kent, or of any borough, or any other custom, should be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and should be attested and subscribed in the presence of the said devisor, by three or four credible witnesses, or else they should be utterly void and of none effect. And thus the law continued till the year 1837, when an act was passed for the amendment of the laws with New Wills Act. respect to wills (h). By this act, the original statute of Henry VIII. (i) was repealed, except as to wills made 1838, and the law was prior to the 1st of January, witnesses. The Statute of Frauds, it will be observed, required Who may be that the witnesses should be credible; and, on the point of credibility, the rules of law with respect to witnesses have, till recently, been very strict; for, the law had so great a dread of the evil influence of the love of money, (g) 29 Car. II. c. 3, s. 5. (h) Stat. 7 Will. IV. & 1 Vict. c. 26. (i) 32 Hen. VIII. c. 1. (k) Sect. 3. (1) Sect. 9. that it would not even listen to any witness, who had the smallest pecuniary interest in the result of his own testimony. Hence, under the Statute of Frauds, a bequest to a witness to a will, or to the wife or husband of a witness, prevented such witness from being heard in support of the will; and, the witness being thus incredible, the will was void for want of three credible. witnesses. By an act of Geo. II. (m), a witness to whom a gift was made, was rendered credible; and the gift only, which was made to the witness, was declared void; but the act did not extend to the case of a gift to the husband or wife of a witness; such a gift, thereNew enactment. fore, still rendered the whole will void (n). Under the new act, however, the incompetency of the witness at the time of the execution of the will, or at any time afterwards, is not sufficient to make the will invalid (o); and if any person shall attest the execution of a will, to whom, or to whose wife or husband, any beneficial interest whatsoever shall be given, (except a mere charge for payment of debts,) the person attesting will be a good witness; but the gift of such beneficial interest to such person, or to the wife or husband of such person, will be void (p). Creditors, also, are good witnesses, although the will should contain a charge for payment of debts (q); and the mere circumstance of being appointed executor, is no objection to a witness (r). By a more recent statute (s), the rule which excluded witnesses, on account of interest, has been very properly abolished; and the evidence of interested witnesses is now received, and its value estimated according to its worth; but the new Wills Act is not affected by this statute (t). (m) Stat. 25 Geo. II. c. 6. & Ald. 589; 1 Jarm. on Wills, (0) Stat. 7 Will. IV. & 1 Vict. (p) Sect. 15. (9) Sect. 16. (r) Sect. 17. (s) Stat. 6 & 7 Vict. c. 85. (t) See sect. 1. |