enlargement. The release must be to the assignee, or it will be ineffectual. The same doctrine also applies to the reversioner; for if the reversioner part with all his estate, his assignee is alone competent to make an available release. This privity of estate must continue, till the release is made therefore, if tenant for life, or in tail, assign all his estate, he is no longer capable of a release. To be effectual, the release must be made to the assignee.(e) But when the tenant for life, or in tail, creates a particular estate, and retains a reversion, then the privity still continues between him and the person in remainder or reversion; and for that reason, the tenant for life, or in tail, may still be a releasee.

And wherever a release would be good, as from the donor, if he remained the owner; it will be good if made by his heirs or assigns, while they continue owners; and as to his assigns, whether they have the whole or only part of the estate.

So, whenever a release would have been good to a lessee or donee, before assignment, it will, after assignment, be good to his assignee. But it is observable that no one can be the assignee of the lessee or

(e) 1 Inst. 273.

donee, unless he hath all the estate; for if any reversion remain in the lessee or donee, there is not any assignee, and consequently the privity remains between the lessor and lessee, donor and donee, &c.

That an alienation (f) may deprive a tenant of his capacity to receive a release, he must have parted with all his estate. As often as he creates a derivative interest, and retains a reversion, he has, in point of law, his former estate, subject only to the estate of the under-lessee, and Įthis derivative interest is not any impediment to his acceptance of a release.

The tenancy between him and the reversioner or remainder-man, still continues, and at the same time a new tenancy is created between the owner of the particular estate, and those who derive an interest out of his estate; and the last lessor (being the particular tenant) may release to his own tenant, by way of enlargement, or may accept a release by way of enlargement from the person who has a reversion or remainder expectant on his own estate.

(f) Dy. 4. Arg.

Shep. Touch. 326.

3. Of Want of Privity, because there is not any Estate, but merely a Right or Interest.

It is also necessary, as may be inferred from former observations, that the releasor should have a vested estate. A mere right or title of entry, or a contingent remainder, or an interest by executory devise, or an interesse termini, does not confer the right of granting an estate. Such an interest, when the person is ascertained, may be released by way of extinguishment of the right or interest; but a release by the owner of such interest, cannot have effect in the mode, in which the release in enlargement of estate must operate; that is, by transferring an actual estate.

It follows, that this assurance is not proper for persons having mere rights of entry or of action. That a release in enlargement of estate may be good, it must pro→ ceed from a person who has a seisin, to, or in favour of his own tenant, or of a person connected with him in privity of estate, consequently of a person who has a vested interest.

Therefore, if A. be tenant for life, remainder to B. for life, remainder to C. in fee, and A. be disseised, this in ordinary

cases, is a disseisin of those in remainder; and while the disseisin continues, no release of estate, to operate by way of enlargement, can be made with effect by B. to A., or by C. to either of them.

The utmost effect which a release between these parties can have, is to extinguish a reserved rent, or service, as already noticed.

So, if the disseisor make a lease for life, a release from the disseisee to the lessee for life, will not operate by enlargement; for no estate remains in the disseisee. The proper assurance between these parties is a confirmation (g) of title; and the release, it is assumed, may operate as such confirmation.

The observations which shew the difference between the union in one and the same person, of two terms of years, as distinguished from the union of a term, and an interesse termini, should be considered as relevant to this head.

And though it be true, that no interest, unless it confer a vested estate, can be enlarged by release; and that an interesse termini, or a contingent remainder, or an interest by way of executory devise, or springing or future use, cannot be enlarged by release, while the interest continues in

(g) Litt. s.

an executory state; yet the moment the interest becomes vested, and confers an estate, the estate conferred by this interest will be capable of enlargement by release.

4. Of the Want of Privity, because the Estate is derived out of a mesne subsisting Estate.

From former observations it may be collected, that the creation of a derivative interest, by the particular tenant, will not disqualify that tenant to receive a release; and that the creation of a particular estate by a reversioner or a remainder-man, will not incapacitate him, to enlarge the estate of the tenant in the original lease, or under the original particular estate. On the other hand, the reversioner or remainder-man, cannot by release, enlarge a particular estate created out of another particular estate, as in the instance of a lessee who makes an under-lease.(h) The estate of the underlessee cannot be enlarged, at least while the particular estate shall be subsisting and interposed for the privity during that period will be between the lessee in the underlease, and his lessor and not between the under-lessee and the person who hath the

(h) 1 Inst.