Imatges de pàgina
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heir, is sufficient to him by reason of the "privitie, which by force of the lease is "between them, &c."

Sec. 460. "In the same manner it is, 66 as it seemeth where a lease is made to a

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man to hold of the lessor at his will, by "force of which lease the lessee hath pos"session if the lessor, in this case make a "release to the lessee of all his right, &c. "this release is good enough for the privity " which is between them; for it shall be in "vain to make an estate by livery of seisin "to another, where he hath possession of "the same land by the lease of the same 66 man before, &c."

Sec. 461. "But where a man of his own "head occupieth lands or tenements,(u) "at the will of him which hath the free"hold, and such occupier claiming nothing "but at will, &c. if he which hath the free"hold will release all his right to the occu

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pier, &c. this release is void, because "there is no privitie between them by "the (v) lease made to the occupier, nor by "other manner, &c."(w)

(u) Claiming to hold the same. (v) Read "a."

(w) This doctrine is correct in principle, but questionable in its application to the fact; for why may not a man claiming to be tenant at will become tenant at will by the admission of the owner, and his consent to treat him as tenant? And why is not the release to the occupier evidence of such consent that he holdeth at will? Besides, if the occupier doth not hold as

An estate for life is also capable of enlargement. In short, every particular estate, conferring the necessary

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stance of privity, may be enlarged by release. Thus an estate after possibility of issue extinct; an estate for years; (x) and even at will, (y) may be enlarged by release ; and it is agreed that the estate of a copyholder (z) who holds at the will of the lord, according to the custom of the manor, is an interest which admits of enlargement, by release from the lord. The release converts the copyhold interest into a freehold tenure.

Littleton (a) propounds the question whether a cestui que trust, who holds by the permission of the trustee, and who is a quasi tenant at will only, and not a tenant at will, is capable of receiving a release by way of enlargement. Between these parties there is not any privity, no tenancy. In case there was a tenancy, a distress might be taken by the trustee on the cestui que trust; but no distress can be maintained unless there be a tenancy by express con

tenant, he must in const ruction of law be viewed as disseisor, and as disseisor he is capable of a release in extinguishment of the right. Co. Litt. 271. See also the case, cited infra, from Mr. Wightwick's Reports.

(x) Litt. 459, 465.

) Litt. 460.

(2) Watkins's Copyhold, 367. and observation, supra. (a) Litt. 462, 463.

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tract between the parties. The sections of Littleton are in the following words :

Sec. 462. "Also if a man enfeoff other "men of his land, upon confidence and to "the intent to perform his last will, and "the feoffor occupieth the same land at the "will of his feoffees, and after the feoffees "release by their deed to their feoffor, all "their right, &c. this hath been a question, “if such release be good or no. And some "have said that such release is void, because "there was no privitie betweene the feof"fees and the feoffor, insomuch as no

lease was made after such feoffment by the feoffees to the feoffor to hold at their "will, and some have said the contrarie, and "that for two causes."

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Sec. 463. "One is, that when such "feoffment is made upon confidence to perform the will of the feoffor, it shall be intended by the law that the feoffor ought presently to occupy the land at the will "of his feoffees, and so there is the like "kind of privitie betweene them as if a "man make a feoffment to others, and they immediately upon the feoffinent, will "and grant that their feoffor shall occupy "the land at their will, &c."

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Sec. 464. "Another cause they alledge "that if such land bee worth fortie shillings "a yeare, &c. then such feoffor shall be "sworn in assize and other inquests in plees

"reals, and also in plees personals, of "what great sum soever the plaintiff will "declare, &c. and this is by the common law "of the land. Ergo, this is for a great cause, "and the cause is for that the law will, that "such feoffors and their heirs ought to

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occupie, &c. and to take and enjoy all "manner of profits, issues, and revenues, "&c. as if the lands were their own, with"out interruption of the feoffees, notwith"standing such feoffment. Ergo, the same "law giveth a privitie between such feof"fors and the feoffees upon confidences, "&c. for which causes they have said that "such releases made by such feoffees upon "confidence to their feoffor or to his heirs, "&c. so occupying the lands, shall be good "enough, and this is the better opinion as "it seemeth."

And on these sections, Lord Coke observes : (b) "Here is a question moved, and "the reasons of both sides shewed, and as "it hath been observed, the latter opinion "is the better, being Littleton's own opinion."

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And the case of the trustee and cestui que trust, and the case of a mortgagor and mortgagee, may, with great propriety, be referred to the same principle. The law on

(b) 271, b.

this point will frequently obviate the objection that there is not any evidence of a lease for a year, as part of a reconveyance by a mortgagee to the mortgagor; or by a trustee to his cestui que trust, when the mortgagor or cestui que trust has the possession of the land. And a recital of the fact of possession will suffice; and by parity of reasoning, the proof of the fact would be equivalent to a recital.(c)

It has been doubted whether the estate of tenant by statute merchant, statute staple, and elegit, admits of enlargement by release.

In Rolle's Abridgment, (d) there are the following passages :

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"If a man has execution of land upon an elegit, it seems that he in reversion "for whose debt it is extended, cannot enlarge his estate by a confirmation to "him. To hold for life for want of privity between them, for the tenant by elegit "comes in by act in law. "13. admitted."

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Contra 31 Ass.

So he cannot enlarge his estate by "release, to hold for life for want of privity. "Contra 31 Ass. 13. admitted."

"If a man sue execution upon an elegit "of my land; and after I, who have the re"version in fee, confirm to him his estate,

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