possession (r) a statute which enabled the owner, through the medium of a conveyance. to uses, to vest the seisin in a person at a distance: for this purpose a feoffment, or according to the circumstances of the seisin or ownership, a grant, and a selection of a proper person to receive such feoffment or grant, were all the requisites which were necessary. Still, however, there must have been livery of seisin of lands held for an estate in possession, and an attornment by the tenant, when the grantor had merely a reversion, or remainder, and transactions were exposed to notoriety by the necessity there existed for livery of seisin, or attornment of the tenant. A bargain and sale might indeed have been made after this statute: so as to vest an estate of freehold or inheritance in the bargainee; but such bargain and sale required inrolment, and the inrolment would express the very language of the transaction, and thus give it still greater publicity. In the progressive steps which have been noticed, a leading principle was applied to practice; and the only inconvenience which remained was the necessity of entry by a lessee, or of attornment by the tenant, who already had a prior estate. To prevent the necessity of such entry on (x) 27 H. 8. c. 10, the one hand, or of attornment on the other, must have been an object of improving practice, and that object was rendered still more important by the circumstances of the times, and the prospect of a more frequent change of property; a prospect arising from the disposition towards commerce, and the alteration in opinion respecting the policy of military tenures. Mortgages were now more common than at more early periods: and commercial credit would not allow of a disclosure of transactions of this sort. Founded on confidence, they required secrecy. In the reign of H. 8. (y) the statute for transferring uses into possession, was passed into a law. By that statute, uses were transferred into estate. Various were the means by which uses were created. A bargain and sale was one of these means, and such bargain and sale might be for years, for life, or in fee.(z) Shortly after the statute of uses was passed into a law, the statute of inrolments(a) was enacted. The object of this statute(b) was to introduce a ceremony which should be attended with notoriety, as a substitute for the ceremony of livery, attornment, (y) 27 H. 8. c. 10. (z) Shep. T. 218. 2 Black. Com. 338. 2 Inst. 671. (6) Note to Co. Litt. 48, a. &c. and it renders it necessary that all bargains and sales, under the statute of uses, for an estate of inheritance of freehold, shall be inrolled within a limited time: viz. six lunar months; but this statute is silent respecting the inrolment of bargains and sales for years; and in the reign of Queen Elizabeth several points were resolved: and they must have had considerable influence in regulating the practice, and in introducing the bargain and sale as a foundation for the release. In Sir Rowland Heyward's case, (c) the doctrine of the court was, "When a man "seised of land in fee for money, demises, "grants, bargains and sells his land for years, 66 "It was he, which is owner of the lands by his express grant, gives election to the lessee "to take it by the one way or the other, for he hath sole power to pass it by demise or bargain, and therefore the law will not "make construction against such express grant." And Lord Coke says, agreed that if this interest should take "effect by bargain and sale, then an attornment is not necessary, for the statute of 27 Henry VIII.c. 10. of uses, dothexecute the possession to it, and the statute of 27 Henry VIII. c. 16. of enrolments, doth not ex 66 66 "tend to it, because no estate of freehold passes, but only an estate for years. Also "at this day an use and interest pass in a manner uno flatu together, in an instant." And the 7th Resolution in this case was, although the lessees in the case in ques❝tion have entered generally, yet they may "afterwards elect either to take by the de"mise or by the bargain and sale; for their "general entry cannot be any determination "of their election, more than if one be exe"cutor and devisee of a term, and he enter"eth generally, it is no determination of his "election." And at the conclusion of the Report it is stated that the lessees made their election to take by bargain and sale, and thereupon they had rents, which otherwise they could not have. In Fox's case, (d) the facts were, that Edward Fox granted the lands to Smallman and others for lives, and afterwards in consideration of 507. demised them to Thomas Powys for 99 years, at a yearly rent of 40s. and the only point in the case was, whether the demise and grant to Thomas Powys should amount to a bargain and sale, so that the reversion with the rent should pass to Thomas Powys by the statute of uses, without any attorn (d) 8 Rep. 93. ment and it was adjudged, "That the "demise and grant upon consideration of "507. amounted to a bargain and sale "for the said years, for in case when a free“hold or inheritance shall pass by deed in"dented and inrolled, it need not have the precise words of bargain and sale; but "words equipollent, or which do tanta"mount are sufficient. (e) That the intent of ઃઃ the grantor may be well collected that he "did intend that the grants should take "effect presently, and should not depend upon any subsequent attornment, for the rent reserved thereupon was payable pre ઃઃ sently, and therefore it will be reasonable "that Thomas Powys the lessee should have "the rent reserved on the first lease for lives પ presently, and that he cannot have before "attornment, which peradventure will never "be made, and eo potius because the said "Thomas has no means to compel the first "lessees to attorn: but if it shall pass as a ઃઃ bargain and sale, it shall be presently exe"cuted by the statute of 27 Henry VIII. for "there needs no inrolment in this case, be cause but a term for years passes and no "estate of freehold, and there needs no at"tornment, because it is executed by the "statute; and by this construction every one e) 7 Rep. 40, b. Bedel's case. Barker v. Keate, 2 Mod. 249. |