" and then the statute immediately annexes the possession. He therefore, being thus 66 in possession, is capable of receiving a "release of the freehold, and reversion, which, we have seen before, must be made "to a tenant in possession: and accordingly "the next day a release is granted to him, "and so a conveyance by lease and release "is said to amount to a feoffment." In another place the learned commentator treats of the necessity of an estate in possession as the ground work of a release: This is not very accurate, though this proposition is less objectionable than the former. (s) In this passage he is taking a view of the effect of a common law lease and release of lands held for an estate in possession. By these expressions of his predecessor, Mr. Woodeson has been led into some difficulty, as is evident from a passage in his 2d vol. of the Vinerian Lectures.(t) He observes, Sir Wm. Blackstone hints at a doubt formerly entertained concerning this mode of conveyancing. This objection was, that there ought to be an actual entry by the 66 66 lessee, under the prior indenture," and concludes, "But this appears to be a very "groundless scrupulosity; and to oppugn "the direct sense and general construction of the statute. Perhaps a more solid diffi .. (s) 2 Black. Com. 324. (4) p. 302.. 66 66 culty arises when we come to consider how a lease and release can be available under "the statute of uses, where a reversion or "remainder is to be conveyed. For how can the vendor bargain and sell the present possession which he's not himself entitled to invade ? or how can the law supply the actual entry of the lessee, when "such entry would be wrongful and illegal?" 66 66 In Sheppard's Touchstone, (u) and in Sheppard's Abr. (v) a passage nearly to the same import is found, but it contains an antidote to the doctrine, by admitting that an estate in reversion in deed, may be enlarged. In these several passages, except the passage from Woodeson, the word possession is to be understood as applicable toavested estate giving a present or future right of enjoyment. The phrase has been borrowed from the statute of uses, as distinguishing those uses which became legal estates, and conferred vested interests, by means of that statute. In short, the several writers have kept too closely to the modern practice of a lease and release, as parts of the same assurance; instead of opening the principles and learning on this subject from the rules of the common law. That these expressions tend to confound is sufficiently obvious from the observation of Mr. Woodeson, and from the difficulty he (u) Shep. T. 321. (v) Shep. Abr. Title Release, 157, 158. has experienced in reconciling, with principle, the practice, as applied to conveyances by release of reversions and remainders. If a gentleman of Mr. Woodeson's acknowledged attainments and experience, could be led into a difficulty by expressions of this sort, how is it to be expected that students should, in the early part of their studies, be able to understand, in their technical sense, phrases of such doubtful or ambiguous meaning? Any one, except a lawyer, might read the Commentaries of Blackstone on this subject, and without any imputation on his judgment arrive at the conclusion, that no one except a person who had the actual possession of the land, was capable of a release in enlargement of his estate. The pointed language of Littleton and of Lord Coke, taken substantively and without the context, might be considered as leading to the same conclusion. Littleton, however, meant nothing more than to mark the difference between an interesse termini, and a term for years. The former is merely an interest in the land, and not an estate, while the latter is an actual estate. (w) The interest, while executory, does not admit ofenlargement. (y) It may be released, (z) (w) Co. Litt. 270. a. 46. b. and Litt. S. 58. (2) 270, b. or assigned, (a) but cannot be surrendered; (6) though ce tain acts are said to amount to a surrender in law; nor (as it is said) can it be confirmed ; (c) but this is at least doubtful; unless the proposition be applied to a confirmation in enlargement of an estate: for the same reason that an interesse termini cannot be enlarged by release, it cannot be enlarged by confirmation ; (d) nor is an interesse termini an impediment to a surrender, or merger, of a prior interest, in a more remote interest. On this subject of possession, some of the expressions of Lord Coke are not more definite. His context, however, relieves the question from all difficulty. From this writer, (e) and also from Sheppard's Touchstone, (f) Sheppard's Abr. (g) and Mr. Butler's Annotations, (h) and still more clearly from first principles, it is to be collected that an estate is capable of enlargement, although that estate, or the estate for years or for life is a reversion or remainder, and consequently does not confer a right to the immediate possession. In the succeeding division some further observations will be introduced illus trative of the origin and history of the lease and release, as parts of the same assurance. 2dly. Of the principles on which this assurance depends. The difficulty respecting this assurance, as a substitute for a feoffment, vanishes when its distinguishing characteristics are examined. In its principles it is founded on the rules of the common law, (i) and consists of two parts: 1st. An assurance creating an estate to be enlarged; and, 2dly. An assurance, granting another estate in enlargement of the estate thus created, for the purpose of being enlarged. The practice of a lease and release as parts of the same assurance, is founded on the rule that a particular estate, already vested, may be enlarged by the release, of the person who has a reversion or remainder expectant on that estate; so as the two estates are connected in privity, (k) in such manner as will afterwards be noticed. Since convenience dictated the use of the lease and release as parts of the same assurance, so in modern practice, the object of the lease for a year, is to create an estate which shall certainly be attended with the requisite privity, and confer an interest which admits, beyond all doubt, of being enlarged. (i) Barker v. Keate, 2 Mod. 251. |