avoided by the modern modes of conveyance under the statute of uses; and it was, at last completely removed by the statutes of 4 and 5 Anne, c. 16, and 11 George II., c. 19; and it has been equally abolished in these United States. The New-York Revised Statutes, have rendered the attornment of the tenant unnecessary to the validity of a conveyance by his landlord; though to render him responsible to the grantee, for rent or otherwise, he must have notice of the grant. Nor will the attornment of a tenant to a stranger be valid, unless made with his landlord's consent, or in consequence of a judgment or decree, or to a mortgagee after forfeiture of the mortgage.

The New-York Revised Statutes have given to deeds of conveyance of the inheritance of freehold, the denomination of grants; and, though deeds of bargain and sale, and of lease and release, may continue to be used, they are to be deemed grants. That instrument of conveyance is made competent to convey all the estate and interest of the grantor, which he could lawfully convey; and it passes no greater or other interest. I should

over so very important a point, with only a general remark, that the connexion between the two parties, under the feudal tenure, were so intimate, that it could not be dissolved by either, without requiring the other's consent; and he refers to no authority for his assertion. Hallam on the Middle Ages, vol. i. 102. Sir Martin Wright refers to the book of feuds, (Feud. lib. 2, tit. 34, sec. 1,) where we have these words: ex eadem lege descendit quod Dominus sine voluntate vassalli feudum alienare non potest. But the book of feuds admits that this check upon the lord did not prevail at Milan. Mediolani non obtinet.

■ In Massachusetts attornments are considered as abolished without any local statute by long usage. Shaw, Ch. J. 3 Metcalf's Rep. 78.

Vol. i. 739, sec. 146.

• New-York Revised Statutes, vol. i. 744, sec. 3.

New-York Revised Statutes, vol. i. 738, sec. 137, 138. 142, 143. So, in Tennessee, the statutory deed operates as a grant to pass nothing but what the bargainor may lawfully sell, and the title passes, not by force of the statute of uses, but of the registered deed. Miller v. Miller, 1 Meigs' Rep.

presume that, under the New-York statute, the operative word of conveyance is grant, and that no other word would be held essential; but, as other modes of conveyance operate equally as grants, any words, showing the intention of the parties to convey, would be suffi*492 cient. The policy of changing, by statute, the denomination of the usual deeds of conveyance of the freehold, and resolving them all into grants, may admit of some question. In the English law, and in the law of this country, grants are understood to apply specifically to the conveyance of incorporeal hereditaments, and to letters patent from government. This is the usual understanding and application of the term, with the profession, and with the country at large. Doctor Tucker said, that the word grant, when applied to lands in Virginia, was synonymous with patent. There would seem to have been no necessity that the name of the ordinary and familiar conveyance, by bargain and sale, should have been dismissed and absorbed in the word grant. The deed of bargain and sale might have been declared to operate as heretofore, by a transfer of the title, without the necessity of the theory of raising a use.b

It will be unnecessary to enlarge upon conveyances of a special or secondary character, as exchange, partition, confirmation, surrender, assignment, and defeasance; and without dwelling upon them, I shall proceed at once to the consideration of conveyances, which owe their introduction, and universal practice, to the statute of uses.

Lord Coke says, that the word grant (concessi) may amount to a grant, a feoffment, a gift, a lease, a release, a confirmation, a surrender, &c.; and it is in the election of a party to use it to which of these purposes he will. Co. Litt. 301, b. The word convey, or the word assign, or the word transfer, would probably be sufficient. It is made the duty of the courts, in the construction of every instrument conveying an estate, "to carry into effect the intent of the parties ;" and that intent may as certainly appear by these words as by any other.

Mr. Humphreys, in his Outlines of a Code, proposed that the name of all deeds should be conveyance, and the operative word convey.

(3.) Of the covenant to stand seised to uses.

By this conveyance, a person seised of lands, covenants that he will stand seised of them to the use of another. On executing the covenant, the other party becomes seised of the use of the land, according to the terms of the use; and the statute of uses imme

diately operates, and annexes the possession to *493 the use. This conveyance has the same force and effect as a common deed of bargain and sale; but the great distinction between them is, that the former can only be made use of among near domestic relations, for it must be founded on the consideration of blood or marriage. No use can be raised for any purpose by this conveyance, in favour of a person not within the influence of the domestic consideration; and it makes no difference whether the grantee, if he be a stranger to the consideration, is to take on his own account, or as a mere trustee for some of the family connexions. He is equally incompetent to take. The existence of another consideration, in addition to that of blood or marriage, will not impede the operation of the deed. Covenants to stand seised are a species of conveyance said to be no longer in use in England, as no use would vest in a stranger, to whom the consideration of blood did not extend. They owe their efficacy to the statute of uses; and, in New-York, the statute of uses is abolished, and no mention is made of this conveyance. But if the covenant to stand seised be founded on the requisite consideration, it would be good as a grant, for there could be no dispute about the intention; and it is admitted, that in a cove

Lord Paget's case, 1 Leon. Rep. 195. 2 Co. 15. Smith v. Ridley, Cro. C. 529. Jackson v. Sebring, 16 Johns. Rep. 515.

2 Saunders on Uses and Trusts, 82. not unknown in practice in this country. v. French, 3 N. H. Rep. 239.

Cross v. Faustenditch, Cro. J. 181.

1 Co. 154, a.

Wiseman's case, Hore v. Dix, 1 Sid. Rep. 25.

But this species of conveyance is Jackson v. Sebring, supra. French

nant to stand seised any words will do, that sufficiently indicate the intention. It is a principle of law, that if the form of the conveyance be an inadequate mode of giving effect to the intention, according to the letter of the instrument, it is to be construed under the assumption of another character, so as to give it effect. Cum quod ago non valet ut ago, valeat quantum valere potest. The qualification to this rule is, that the instrument must partake of the essential qualities of the deed as*494 sumed; and, therefore, no instrument can *operate as a feoffment without livery, either shown or presumed; nor as a grant, unless the subject lies in grant; (as it now does in New-York in all cases of the freehold,) nor as a covenant to stand seised, without the consideration of blood or marriage; nor as a bargain and sale, without a valuable consideration. If there be no lease to make the deed good as a release, and no livery to make it good as a feoffment, it may operate as a bargain and sale, or if a release cannot operate because it attempts to convey a freehold in futuro, it will be available as a covenant to stand seised, provided there be the requisite consideration.

(4.) Of lease and release.

This was the usual mode of conveyance in England down to the year 1841, because it did not require the trouble of enrolment. It was contrived by Sergeant Moore, at the request of Lord Norris, for a particular case,

• Doe v. Salkeld, Willes' Rep. 673. Roe v. Tranmarr, id. 682. Hayes v. Kershaw, 1 Sandford Ch. Rep. 258. In this last case, in which the learned Assistant Vice Chancellor, in his able judgment in support of a conveyance as a covenant to stand seised to uses, considered it to be settled that collateral consanguinity was not a meritorious consideration.

b Doe v. Salkeld, Willes' Rep. 673. Preston on Abstracts, vol. i. 71.312. Roe v. Traumarr, Willes' Rep. 682, with the notes annexed to the case, as reported in Smith's Leading Cases, vol. ii. Ibid. vol. iii. 23, 24. Cheney D. Watkins, 1 Harr. & Johns. 527.

and to avoid the unpleasant notoriety of livery, or attornment. It was the mode universally in practice in New-York, until the year 1788. The revision of the statute law of the state at that period, which re-enacted all the English statute law deemed proper and applicable, and which repealed the British statutes in force in New-York while it was a colony, removed all apprehension of the necessity of enrolment of deeds of bargain and sale, and left that short, plain, and excellent mode of conveyance to its free operation. The consequence was, that the conveyance by lease and release, which required two deeds or instruments, instead of one, fell immediately into total disuse, and will never be revived.

The lease and release, when used as a conveyance of the fee, have the joint operation of a single conveyance. The first step was to create a small estate, as a lease for a year, and vest possession of it in the grantee. In a lease at common law, actual entry was requisite, to vest the possession, *and enable the lessee to re- *495 ceive a release of the reversion. To avoid the necessity of actual entry, the lesser estate was created by a bargain and sale under the statute of uses, and founded on a nominal pecuniary consideration. The bargain raised the use, and the statute immediately annexed the possession to the use; and the lessee, being thus in possession by the operation of the statute, was enabled to receive a release of the reversion. The release was a conveyance at common law, and operated by way of enlargement of the estate; and thus, by the operation of the lease, by way of bargain and sale, under the statute of uses, and by the operation of the release at common law, the title was conveyed.

If the lease is not to operate, under the statute of uses, as a bargain and sale, then a consideration is not necessary. As the statute of enrolments of 27 Hen. VIII., did not apply to terms for years, the bargain and sale for a pecuniary consideration placed the lessee, before