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continued, has no estate to be enlarged (m). He may release to the disseisor by way of extinguishment of right, but the disseisor cannot release to him with effect. A release would, however, in all probability amount to a renunciation of the disseisin, and do away its effect.

By modern decisions it is established that possibilities coupled with an interest are devisable (n). It is also settled that they may be released, by way of extinguishment of right (0), or may be bound by way of estoppel (p).

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In equity, owners under contingent remainders and executory devises, may bind themselves by contract for a valuable consideration. In this sense, and to this extent, these interests are transferrable. But because they are transferrable in equity, it by no means follows that they are grantable at law on the contrary the decisions in equity suppose and admit, that the conveyance has no legal operation. When it is said in some recent decisions that these interests are assignable (q); that expression must, it is submitted, be un

(m) Shep. T. 319. 322.

(n) Roe v. Jones, 3 Term Rep. 38. 1 Hen. Blackst. 30.

(0) Co. Litt. 214. Shep. T. 238.

(p) Weale v. Lower, Pollex. 54. Buckler's Case, 2 Rep. 55, Moore's Case, Palmer, 365.

(9) Roe v. Jones, 3 Term Rep. 88.

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The Binder is desired to cancel pages 269, 270, 271, 272, in sheet S.

derstood with the restrictions and qualifications expressed in this work. This remark is more necessary, because some gentlemen of the highest eminence have advanced the doctrine, that possibilities coupled with an interest are grantable; these persons considering by some unaccountable mistake, that whatever is DEVISABLE, IS GRANTABLE. The rule is only that whatever is grantable is devisable and some interests which are devisable are not grantable; for example, the interest under Contingent Remainders and Executory Devises.

As connected with this subject, it may be observed that contingent interests to the survivor of several persons (r); or to persons who shall answer a given description, and who are not yet ascertained, as the children of A. who shall be living at his death; or the expectancy of an heir, though they are possibilities coupled with an interest, are not, it is apprehended, devisable, (s) or even releasable and in a late case (t) of great anxiety, and very fully considered, it was decided in the court of King's Bench, that a right or title of entry, or of action, though an interest which is releasable, is not devisable.

(r) 1 Fearne, 541.

(s) Doe v. Tomkinson, 1 Maule and Selwyn 165. cited infra. (t) Goodright v. Forrester, 8 East, 552.

On this judgment there was a writ of error brought in the Exchequer Chamber, and this point was full argued and discussed; but the decision of that court was founded on another point-the bar by non-claim on a fine with proclamations: The Ch. Justice of the Common Pleas who delivered the judgment of the Court of Exchequer Chamber, distinctly and repeatedly declared, that there was not any intention in that court of questioning the judgment in the King's Bench (u).

That expectancies may be bound by estoppel, is the consequence of a rule of law, concerning titles, and not of any present interest in the parties. Equity holds the contract of an expectant heir who becomes heir de facto, binding on him: but this equity is deemed personal to the party, and does not extend to his heir (v).

It is immaterial whether the releasor has an estate in possession (w), reversion, or remainder (x); or whether he is a joint-tenant, or tenant in common, or a coparcener, or even seized by entireties. The release may operate under all these circumstances. It may also operate whether it proceeds from a

(u) This is stated from the author's knowledge of the fact. (v) Clayton v. Duke of Newcastle, 2 Ch. Ca.112. Morse, v. Faulkener and others, Anstr. 11.

(w) Co. Litt. 265. a.

(x) Shep. T. 321.

person seised of an estate in fee simple, fee tail, or for life. All that is requisite is, that there should be in the releasor an estate of freehold or inheritance. The statute of uses(x) applies to estates of those persons alone, who are seised; and it follows that the bargain and sale, as part of the assurance by lease and release, must proceed from a person who has an estate of inheritance, or at least an estate of freehold. The use declared of the estate of a termor for years (y) or of the estate of the owner of any other chattel interest, cannot be executed into estate by the statute.

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The releasor must also be a person, who in point of estate, may stand seised to an Instances have already been enumerated of the king, a corporation, &c. in which the use cannot arise by reason of some circumstances peculiar to the grantor; and it has already been noticed that a tenant in tail may, under certain modifications, stand seised to an use. The observations on that point prove that a lease and release by a tenant in tail, will be an efficient conveyance to pass his estate (z). Such conveyance, however,

(x) 27 Hen. 8.

(y) 1 Dyer, 369. a. pl. 50.

(2) Seymour's Case, 10 Rep. Machel v. Clerk, 2 Lord Raym. Doe v. Whitehead, 3 Burr. Stapylton v. Stapylton, 1 Atk. 2.

will be defeasible by the issue in tail, the remainder-men or reversioner, unless the proper ceremonies for barring the interest of these persons shall be observed.

Fourthly, Who may be the releasee.
1st, In respect of personal qualification.
2d, In respect of estate.

First. Any person capable of a grant may be the grantee in the lease, and also in the release.

Secondly. The principal point to be regarded is, that, either in fact or in intend ment of law, the releasee should, prior to the execution of the release, have acquired an estate vested, either in possession, or in reversion, or remainder (a) to be capable of enlargement. The lease for a year is, in modern practice, made with the intention, and, in skilful hands, with the declared object, of creating an estate, which may admit of enlargement; and it is to be called to mind that the grantee must have an actual term or estate, and not merely an interesse termini, or a right of entry, or an executory interest (b). And it is to be remembered, that under the rules of the common law, a lessee has not any estate till entry on lands held for an estate in possession; nor before the statute for the amendment

(a) Litt. s. 459. Co. Litt. 270.

(b) Litt. s. 459. Co. Litt. 46. b. 270. a.

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