tion of principle, which ought to govern the decisions of courts of justice, and even to the authorities with which the books abound, that the release, rather than fal of effect should have the twofold operation, first, of a confirmation; and secondly, of a release. It remains only to shew that there is no want of notoriety: Why is not an entry by virtue of an execution, as notorious, as an entry by virtue of a lease? After the demandant in a real action, has obtained seisin under an execution, the tenant in the action, or a stranger may release to him. The validity of such release is grounded on the seisin, or estate, of the releasee. The same principles establish the right of the tenant by statute or elegit, to receive a grant or release, in enlargement of his estate, from the person whose possession is, by force of the execution, changed into a reversion: thus establishing the relative situation of a tenancy and seigniory, between these parties: and it is incomprehensible on what ground the law should acknowledge the right of the tenant to surrender to the reversioner, and deny the right of the reversioner to make, or the tenant to receive, a grant or release in enlargement of the estate of the tenant. At the common law the debtor could not after execution, have conveyed to a stranger by feoffment, without the

consent of the tenant by elegit, &c. for the possession was in this particular tenant, and not in the debtor: hence the doctrine of Lord Coke (n),-" A tenant by statute "merchant, or tenant by statute staple, or

by elegit, must also attorn, for the gran"tee may have a venire facias ad computandum, or tender the money, &c. and discharge the land. And if the reversion "be granted by fine, they shall be compelled to attorn in a quid juris clamat."

te

If it be said that the tenant by statute, &c. comes in by act of law, or in the post, and not by privity of contract, the same objection would exclude a tenant in dower or by curtesy from taking a release in enlargement of the estate of that tenant, while it is an acknowledged proposition, that such tenant in dower, or by the curtesy, has an estate which may be enlarged by release.

As illustrative of this doctrine of privity, and as introducing a point, even applicable to the learning of releases, the succeeding passage may be added, namely:

66

"And so the executors that have the "land until the debts be paid, must attorn upon the grant of the reversion, although they have not any certain term of years (o)."

(n) Co. Litt. 315. b. (0) Co. Litt. 315.

And it may, therefore, be predicated of the tenancy of such executors, that their interest admits of enlargement by release; nor would it be right to suffer the passage from Lord Coke, respecting the venire facias ad computandum, to find a place in this work, without observing that it affords an authority, that no one can purchase an estate held by statute or elegit without considering this interest to be redeemable by the reversioner, even at law on payment of the balance of the debt, after deducting the sums levied, according to the extended value, and the casual profits. In equity, except in cases in which the account is involved in difficulty from lapse of time, the account must be taken on the footing of the actual receipts, by the tenant by statute merchant, &c. (p)

From these observations, on the privity between the tenant by statute merchant, &c. on the one hand, and on the other hand, the person who has the ulterior interest, it follows, that a grant was the proper mode of transferring the reversion of the debtor to a stranger or third person; and as the debtor might grant the reversion to a stranger by deed, without livery of seisin, why might he not grant his estate to the te

Ess. on the Quant. of Est. chap. Terms of Years.

nant by statute, elegit, &c.

Such grant

to the tenant must, on principle, assume the name of a release, since it has all the qualities of that species of assurance.

The sole object of these observations is to lead to a certain knowledge of the principles on which the release is grounded; and to endeavour to establish the general proposition, that every particular estate may, if properly circumstanced in other respects, be enlarged by the release of the person who has an estate in reversion or remainder.

All the books agree that when there is a mere possession, without any estate, a release cannot operate with effect. A person holding by sufferance, or a mere trespasser, has a mere naked possession, and no estate; and this is the condition of a person who intrudes and claims to hold at will, but is not admitted to be tenant at will; and a release to him could not operate with effect in that mode. He has no estate or interest capable of enlargement (q). And had not the authority of Littleton interposed and received the sanction of Lord Coke (r), there would have been considerable difficulty in admitting that a cestui que trust of the fee, who had the possession

(g) 1 Inst. 270. b. 271. a.

(r) Litt, s. 462, 463, and 464. and the commentary.

merely by the permission of the trustee, was qualified to receive a release, as an enlargement of his estate or interest under a permissive occupation. It is decided, that a mortgagor cannot, without an express contract, be charged with the payment of rent to the mortgagee, nor with a liability to rent in an action for use and occupation (a).

The case put by Littleton, in section 461, is the general authority that a mere trespasser, or a mere occupier, though he may claim to hold at will, has no estate; and that without an estate creating the relative situation of tenant, or quasi tenant, and lord or reversioner, there cannot be an effectual release by way of enlargement. At the same time that this section is urged, and its principle acknowledged, it is as already noticed rather a subject of surprize, that the law had not accepted the conduct of the parties, as evidence that the occupier consented to be tenant at will, and that the owner of the inheritance agreed to this tenancy, considering the release as the evidence and acknowledgment of the tenancy, and as the only means by which the release could be effectual by way of conveyance; and in modern practice no reasonable doubt can be entertained that under such circumstances the law would consider the

(a) The Contract is to pay interest and not to pay rent.