of the law had he any estate, till attornment, when the lands were held for an estate in reversion or remainder. Immediately after opening the learning, in the next division, a more detailed view will be taken of the rules which concern this part of the assurance.

But a seisin in law will suffice to suppose a release, in enlargement of the estate ; as is the case of a release to a tenant for life in remainder, during the continuance of a prior particular estate, or after the determination thereof, and before entry.

A few observations will now be proper, respecting the tenant whose estate, or interest, is capable of being enlarged by release.

A person who has the fee, (e) has the utmost extent or degree of interest of which a man is capable: in the language of Littleton, (d)" a man cannot have a more large or greater estate of inheritance than fee

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simple." His estate does not admit of any increase. It may be determinable, or defeasible; and these qualities may cease, or they may be discharged by a release (e). Such release operates by way of extinguishment of right or title (f), and not as a release in enlargement of a prior estate.

(c) Essay on the Quantity of Estates, Chap. Fee. (d) Litt. s. 11.

(e) Essay on the Quantity of Estates, Chap. Fee. (f) Shep. Abr. Chap. Extinguishment.

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When an instrument operates as a release by way of enlargement, it transfers an estate. It passes a seisin : in short, it is a conveyance. From these deductions it follows that uses may be, and they are continually declared of theseisin, transferred by this assurance. No use can be declared on a release of right, or of title, or of a possibility and of this nature is a release of the determinable or defeasible quality of an estate in fee. There is one species of fee which it should seem admits of enlargement. This is the particular and peculiar case of an estate-tail, or a fee converted from an intail, into a base or determinable fee (g). In this instance, the base or determinable fee may be in one person, and an actual estate may be in another person. Consistently with principle, a base fee, being a particular estate, may be enlarged, by the accession of the remainder or reversion in fee, conferring the ulterior interest : for there is an estate to be added, and that estate is, in legal denomination, and in legal intendment, larger than this base or determinable fee. This instance forms an exception to the general rule, that one fee cannot be dependant, or expectant, on another fee (h). The rule is true, only when

(g) Co. Litt. 18. a. Machell v. Clarke, 2 Lord Raym. 778. (k) Co. Litt. 18. a. Essay on Estates, Chap. Fee.

understood with the qualification, that one fee, cannot, by the grant of the party, be expectant on another fee, not being a particular estate; and no fee, except a fee-tail, or a base fee arising from an estate-tail, is considered as a particular estate.

The conversion of an estate-tail into a base fee, is merely a consequence of law, and the necessary result of the statute de donis (i), which made the conditional fee, of antient times, the estate-tail; a particular estate, of modern times. When a man grants an estate to another and his heirs, determinable in any manner, he retains merely a possibility of reverter. This possibility may be released to the person who has the determinable fee but notwithstanding Mr. Fearne's (j) ingenious reasoning to establish a contrary doctrine, the more correct opinion, drawn from the principles of tenure, seems to be that this possibility does not admit of being granted. On the other hand, an actual reversion or remainder may exist as an estate after the creation of an estate-tail; and this reversion or remainder, though it becomes expectant on a base fee, as the ownership arising from an estate-tail, after its descendible quality has

(i) 13 Edw. 1. c. 1.

(j) 1 Fearne's Contingent Rem. Butler's Edit. p. 359. Stat. de Donis, 13 Edw. 1. c. 1. Co. Litt. 18. a.

been changed from the issue in tail to the common law heir, confers an interest which may be granted from one person to another. For that reason, it may be released to the person who has the base or determinable fee, in enlargement of his estate. Hence also the decision that a base fee acquired from the alteration in the descendible quality of an estate-tail, may merge in the ultimate remainder or reversion in fee (k). No doubt is entertained that an instrument in the form of a lease and release would operate by way of release of the possibility, when there is merely a possibility of reverter. The case is noticed only for the sake of a distinction, and to illustrate the general principles on which the assurance by lease and release depends.

Let it also be remembered that when a tenant in tail discontinues (7), or a tenant for life aliens tortiously, and thereby devests the reversion or remainder (m), the reversion or remainder is converted, in the former instance into a right of action; and in the latter instance into a right of entry: and such right of entry may eventually by the

(k) Symonds v. Cudmore, 4 Mod. 1.

Kinaston v. Clarke, 2 Atk. 204.

Shelburn v. Biddulph, 6 Bro. Parl. Cas. 53. Edit. 1803. (1) Litt. Section 592. and the commentary.

(m) Bredou's Case, 1 Rep. 76.

Goodright ex dem. Burton v. Forrester, 1 Taunton, 578.

statute of limitations, or by a descent which tolls the entry, become a mere right of action (n). In each of the instances, the right or title of entry or of action, may be released by way of extinguishment. In neither case can it be released by way of enlargement of estate; since the remainder or reversioner does not retain any estate. He has merely a right of action or of entry, to restore or revive his estate. This subject, with the principles by which it is governed, will be found in the arguments, in the case of Goodright on the demise of Burton v. Forester, in the Court of Exchequer Chamber (o), and the chapter on alienation by tenant in tail in the tracts on cross remainders, &c.

To guard the reader against an error into which these observations and first principles might easily lead him, he ought to be apprized, that it is decided by two cases (p), and was expressed to be the opinion of Lord Alvanley in another case (q), that if a person become seised in fee, subject to an executory devise to take place on an event which happens; and before the event happens,

(n) Tracts on Cross Remainders in Chap. on Alienation by Tenant in Tail.

(0) 1 Taunt. 578.

(p) Goodright v. Searle, 2 Wilson, 29.

Goodtitle v. White, 2 New Rep. 383. (4) 3 Bos. and Pull. 655.