66 warranty, the infant at full age, bring"eth a dum fuit infra ætatem, the tenant "voucheth his grantor, who entereth into warranty, the demandant releaseth to "him and his heirs: here is privity in "law, and a tenancy in supposition of "law and yet because he, in rei veritate, "hath no estate, it cannot enure to him by way of enlargement; for how can his "estate be enlarged, that hath not any? "If the tenant by the curtesy grant over "his estate, yet he is tenant as to an ac"tion of waste, attornment, &c. and yet a "release to him and his heirs cannot enure "to enlarge his estate, that hath no es"tate at all." It follows, that in order that an estate may be enlarged, there must, as between the releasor and releasee, be privity of connection, and privity of estate, as is the case between lessor and lessee, donor and donee (h); or between the person who has a particular estate, and the person who hath the reversion; as tenant by statute merchant, and the person on whose seisin the extent was sued, It is also to be remembered, that the estate, as well as the privity, must continue down to the time at which the release is (4) 1 Inst. 272, b. made; for mere privity without an estate, or an estate without privity is no foundation for a release (i), as will be shewn under the divisions of this head. In Sheppard's Touchstone (k), there is this passage" So also, if donee in tail "make a lease for his own life, and after "donor release to donee and his heirs, it "seems this is not a good release.” It is difficult to comprehend the objection against this release. The law is now well understood to be, that the donee retains a reversion, and the privity between him and the former reversioner continues, and hẹ is still tenant in tail, notwithstanding the grant for his own life (7). The case of a donee is probably inserted for that of a lessee. Lord Coke puts the case of a release to the lessee. The release as made to the lessee, was open to the objection, that the privity was between the donor and donee, and not the donor and the lessee of the donee. The same principles mutatis mutandis apply to particular tenants, whose estates are to be enlarged by remainder-men, and also to remainder-men by whom grants may be made, in enlargement of particular estates. It is immaterial whether the remainder or reversion be for life, in tail, or in fee, except that alienation by tenant in tail will not be binding, as far as it depends on the release, to the prejudice of his issue. Hence, as will be collected from former observations, a tenant in fee or in tail (m), as well as a tenant for life, is competent to convey by lease and release. A seisin in law will also suffice for the ability to make, or capacity to receive, the release. And whether a person hath the estate in his own right, or in right of his wife (n), that estate is equally capable of enlarge ment. And it is immaterial whether the estate which the husband has in right of his wife, be an estate for years, which he may absolutely alien, or for life, and consequently of freehold, which he alone cannot alien as against his wife. The estate which one has in the right of a testator or intestate, or as a trustee, is also capable of enlargement. Thus a man who hath a term for years as executor, is capa (m) Machel y. Clarke, 2 Lord Raym. (n) 1 Inst. 173. 299. Shep. Touch. 321. ble of a release in enlargement of his estate, and a release to a husband seis d or entitled in right of his wife may operate, whether made to him solely or to him and his wife jointly; and when the grant by way of release is to him and his wife, the inheritance may pass to one or to both, agreeable to the intention of the parties (0). And though a tenant for twenty years in possession, make a lease to B. for ten years, and B. enters, and he in the reversion release to the original lessee for years, this will be a good release to enlarge his estate. Between the releasor and releasee, there is a continuance of privity; but as will be observed under the proper - division, there is not any privity between the under lessee, (the tenant for ten years) and the reversioner in fee (p), while the estate for twenty years continues. A release from the owner of the fee, to the under-lessee, during the term of twenty years, cannot operate to the enlargement of his estate, though it may operate as a grant to him, in the same manner as it might operate as a grant to any stranger. So if tenant in tail create a particular estate for life, the person who hath the re (0) Shep. Touch. mainder or reversion in fee, cannot enlarge this estate for life, by release, because there is not any privity between the estates of the releasor and releasee (q). The privity is twofold: First, First, between the tenant for life, or in tail, and his tenant; secondly, between the tenant for life or in tail himself, and the person who hath the remainder or reversion in fee. That a release may operate in enlargement of estate, it must be either from the tenant in tail to his own lessee, or from the person who hath the remainder or reversion in fee to the tenant in tail. For it is the particular property of this species of assurance, that it should proceed from one who has an estate in reversion or remainder, in favor of a person who has a prior particular estate. This is implied in the nature of the assurance, and from its mode of operation, to enlarge the estate of a tenant; while a grant proceeding from a tenant to the person who has the next vested estate, in remainder or reversion, does, instead of enlarging the interest of the grantee, cause the merger, surrender, or extinguishment of the particular estate. A surrender or release of right to the remainder-man or reversioner, may enlarge |