and there must be a seisin as a foundation on which they may operate. They pass that degree of interest only which is in the grantor, and it is for this reason called an innocent conveyance. (k) And a lease and release, either at the common law, or through the medium of a bargain and sale, cannot be pleaded as a feoffment. (/)

In discussing the origin of the assurance by lease and release it has been necessary to advert to the principles on which it is grounded: it will here be proper to enumerate the more leading points; they are,

1st, By the doctrine of the common law, a vested interest for years, either in possession, reversion, or remainder, may be enlarged by release.

2dly, A lease for years, at the common law of lands in possession, will not give an actual estate till entry; but a lease for years of lands in reversion, will, now that attornment is rendered unnecessary, give an actual estate without either entry, attornment, or other ceremony.

3dly, A bargain and sale for years may give an actual estate prior to entry.

4thly, An estate arising from a bargain

(k) Supra, p. 236.

(1) Broke Feoffment, pl. 44. Vin. Abr. Feoffment, B. 2. pl. 1.

and sale for years, may vest instanter, (m) and be enlarged by release; and

Lastly, The object of the lease for a year, more properly denominated a bargain and sale for a year, is to create such particular estate as may be enlarged by release.

2dly, Of its Parts.

A lease and release are considered in law as constituting one assurance, an assurance which consists of two parts, (n) perfectly distinct, each producing its own particular operation. 1st, Of a lease for a year or some other short period, measured by a definite space of time so as to be a chattel interest; and

2dly, Of a release in enlargement of the estate, created by the lease. It is of the essence of this assurance, as a substitute for a feoffment, that there should be a lease creating a particular estate, and separating the same from the inheritance; so that there may be a reversion expectant on the particular estate; for unless a particular estate is created, there does not exist any interest capable of enlargement.(0) On the other hand, unless the inheritance is divided from the possession by means of a particular estate, there is no interest of that particular species

(m) See the next division,

(n) Barker v. Keate, 2 Mod, 252. (6) Co. Litt. 279.

which can be granted by way of release.(p) The reasons given against an assurance by lease at the common law, and release before the entry of the lessee, would apply with equal and still greater force as an authority for this point. The objections,(q) it may be remembered, were,

First, that there was merely an interesse termini, and not an actual term, or estate; and the objection is applied with still greater weight when there is not any interest whatever, either by way of interesse termini or otherwise. The other objection was, that there was not any reversion divided from the possession, and as a consequence, there was not only the want of an interest capable of enlargement, but there was also a deficiency of that species of interest, which was the subject of a grant, capable of being passed by deed, without livery, inrolment, &c. (r) Hence this assurance is constituted of two acts, one perfectly distinct from the other, though both are taken into consideration by the law as parts of the same assurance. (s) The lease for a year is usually contained in a deed, either poll or indented. A deed is not essentially necessary to the operation of the lease, but it is essential to the validity of the release; for the release creates a

(p) Co. Lit. 3381.

(q) Co. Litt. 270, a.

(r) Co. Litt. 49, a. Shep. T. 227. (s) Barker v. Keate, 2 Mod. 252.

particular estate, and the remaining interest of the grantor is a reversion, and this reversion cannot be transferred without a grant; and a grant cannot be made without a deed. (t)

In point of law, and generally in point of fact, an assurance by lease and release consists of two distinct acts contained in two distinct instruments.

1st. Of a lease for a year, in one instrument, dated on one day, and,

2dly, Of a release of the freehold or inheritance, in another instrument, dated on the next succeeding day.

It has been said, both these instruments may be contained in the deed, and written on the same parchment.

Beyond all question the two instruments may be dated on the same day,(u) and may be, and generally are, executed in the same instant of time. In correct practice the execution of the lease for a year ought to precede the execution of the release; but even though it should be proved that the lease and release were executed in a different order, the release, being executed in the first instance, and the lease for a year afterwards, the law, in applying the rule which makes these two instruments parts of the same assurance, would, it is apprehended, reject this evidence of priority, and consider the legal operation

of the two instruments to be, 1st, a lease, and 2dly, a release. There are general principles with which such a decision may be easily reconciled, but till the precise point shall have been decided, a title depending a lease and release executed in this mode, would by cautious practitioners, be treated as doubtful. It is certain that in the absence of evidence of the fact, the law would presume the priority in the execution of the lease, as the means of giving effect to the release.(v)

These observations apply to the assurance only when it is made by a lease and release as parts of the same transaction; when the particular estate is created solely for the purpose of being the foundation of the release; and also when the lease is by bargain and sale; for when the lease is at the common law, and of lands held for an estate in possession, there must be an entry by force of the lease, in the interval between the execution of the lease, and the execution of the release.

In investigating titles, it will sometimes occur that there is a release only without a lease for a year, as part of the same transaction. The object of the release is under these circumstances, to enlarge an estate previously existing and created independently of any intention to make the release. Cases of this sort depend on those rules of law, from which the

(v) 1 Burr. 106.