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entry, in the same situation with the lessee at common law after entry; and it was early settled, that the estate of such a lessee was capable of enlargement by release, and that such a mode of conveyance was effectual.a
(5.) Of bargain and sule.
This is the mode of conveyance most prevalent in the United States; and it was in universal use in New-York after 1788, and prior to the introduction of the grant, by the Revised Statutes, in January, 1830. A bargain and sale was originally a contract for the conveyance of land for a valuable consideration; and though the land itself would not pass without livery, the contract was *496 sufficient to raise a use, which the bargainor was bound in equity to perform. Nothing can be more liberal than the rules of law, as to the words requisite to create a bargain and sale. There must be a valuable consideration, and then any words that will raise a use will amount to a bargain and sale. After the statute of uses was passed, the use which was raised and vested in the bargainee, by means of the bargain, was annexed to the possession; and by that operation the bar
• Lutwich v. Mitton, Cro. J. 604. Barker v. Keat, 6 Mod. Rep. 249. The second volume of Mr. Preston's Treatise on Conveyancing is essentially devoted to the theory of the law, as it applies to the conveyance by lease and release; and the subject is exhausted, and treated in attenuated detail.
In New-Jersey, deeds of bargain and sale without enrolment were adopted by statute in 1714, and always used. In Massachusetts, conveyance is by deed, acknowledged and recorded, without any other act or ceremony whatsoever; and a deed of quit-claim and release is sufficient to pass all the estate of the grantor, equally as a bargain and sale. Massachusetts Revised Statutes, 1835, part 2, tit. 2, c. 59. In England, by statute 4 Victoria, c. 21, a release is made as effectual as a lease and release to convey a freehold interest of any description.
d2 Inst. 672. Jackson v. Fish, 10 Johns. Rep. 456, 457; and see ibid. 505 to S. P.
gain became at once a sale, and complete transfer of the title."
A use may be raised by feoffment, as well as by bargain and sale, or covenant to stand seised to uses. But when raised by feoffment, the feoffor, having parted with the legal estate, cannot stand seised to the use of the feoffee, as the bargainor and covenantor, who retain in themselves the legal estate, do in the other cases. Bargain and sale, and covenant to stand seised, are conveyances not adapted to settlements; and this is the reason why they have been so generally disused in England. They both require a consideration; and they could not be applied to the case of persons not in esse, for they had not contributed to the consideration when the conveyance was made. The conveyance by lease and release has become the universal mode by which property is conveyed in England, whether by way of sale, mortgage, or settlement. It has this attractive circumstance attending it: it has not the inconvenience and notoriety of livery, which is requisite in feoffment; nor of enrolment, which is required by the statute of 27 Hen. VIII., in a bargain and sale. It is, therefore, a mode of conveyance well adapted to that secrecy which best accords with the feelings connected with family settlements.
2 Blacks. Com. 338.
Thatcher v. Omans, 3 Pick. Rep. 532.
• In Alabama, by statute in 1812, conveyances by bargain and sale, lease and release, and covenant to stand seised, pass the possession to the purchaser, equally as if he had been enfeoffed with livery of seisin. This dispenses with the theory of raising a use under the statute of uses, and it is simple and intelligible, and the same operation is given to a deed of conveyance by statute in other states, as in Maine, New-Hampshire, Massachusetts, Vermont, Delaware, Illinois, Ohio and North Carolina. The title passes simply by deed or writing without livery, or the execution of a use. But the doctrine of uses, under the English statute of uses, has always been considered in Massachusetts as with them an existing modification of the common law; and uses appear not to be disturbed under the revised statutes VOL. IV. 41
*(6.) Of fines and recoveries.
Alienation by matter of record, as by fines and common recoveries, makes a distinguished figure in the English code of the common assurances of the kingdom. But they have not been in much use in any part of this country, and probably were never adopted, or known in practice, in most of the states. The conveyance by common revovery was in use in Pennsylvania, Delaware, and Maryland, before the American revolution; but it must have become obsolete with the disuse of estates tail. Fines have been occasionally levied in NewYork, for the sake of barring claims; but by the NewYork Revised Statutes, fines and common recoveries are now abolished. The English real property commissioners, in their report to parliament, in 1829, proposed the abolition of fines and recoveries in England, and to enable tenants in tail to convey the fee, and to dock the entail by deed to be enrolled in the court of chancery. They proposed, likewise, to allow femes covert to part with their estates and interests in law or equity, by deed, with the concurrence of their husbands, and after a pri
of 1836, and perhaps estates may still be deemed to pass by way of use. Parsons, Ch. J., Marshall v. Fisk, 6 Mass. Rep. 31. The statute in North Carolina seems to be only carrying out on this point the enactment in the statute of 27 Hen. VIII., c. 10, and the theory of uses may be considered as existing. 1 North Carolina Revised Statutes, 1837, p. 259. On the other hand, in Ohio, the English statute of uses was never in force as a rule of property. Helfenstine v. Garrard, 7 Ohio Rep. 275.
Vol. ii. 343, sec. 24.
They were abolished by statute in New-Jersey, in 1799. Elmer's Dig. 90. The conveyances by fine and common recovery continued to be, as lawful assurances, part of the law of Pennsylvania, down to 1835; and in what way they were to be dealt with, was under the consideration of the commissioners appointed to revise the civil code. It appears that fines and recoveries remained still lawful conveyances at the publication, in 1837, of Purdon's Digest of the Laws of Pennsylvania, though the statute of 1799 allowed estates tail to be barred by the ordinary conveyance of estates in fee simple. Common recoveries seem to be assumed to be valid conveyances in the North Carolina Revised Statutes, 1737, vol. i. 261.
vate examination by an officer. The entire disuse of common recoveries, followed of course, in this country, upon the abolition of estates tail; for such a fictitious suit, considered as a conveyance of land in cases allowed by law, is most inconvenient and absurd. And since the acknowledged and long settled competency of a tenant in tail, to convey and bar the issue in tail, a more simple and easy mode of conveyance might well be contrived by the sages of the law in England. The conveyance by fine, as a matter of record transacted in one of the highest courts of common law, has some great advantages, and merits a more serious consideration. Its force and effect are very great; and great solemnity is required in passing it, because, said the statute of 18 Edw. I., "the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it *precludes not only those who are parties *498 and privies to the fine and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied, unless they put in their claim within a year and a day." This bar by non-claim was, afterwards, by the statute of 4 Hen. VII., extended to five years. These statutes, and this bar of non-claim after five years, were re-enacted in New-York, and continued in force until January, 1830: and common recoveries were equally recognized by statute as a valid mode of conveyance, down to this last-mentioned period. Such a formal, solemn, and public mode of conveyance, with such a short bar by non-claim, was resorted to in special cases, where title had become complex, and the property was of great value, and costly improvements were in immediate contemplation. Doctor Tucker recommended a resort to it, in Virginia, on this very account. In our large cities, where land is exceeding
Tucker's Blacks. vol. ii. 355, note.
valuable, and very expensive erections are constantly making, it may be desirable that the certainty of the title should be established within a shorter period than twenty years. This is the only objection that could possibly be made to the abolition of the conveyance by fine; for, as to the notoriety of the transfer, it is by no means equal to the record of a deed in the county where the lands are situated, and where all persons are accustomed to resort, as being the only place for information. In point of fact, the levying a fine, with us, may be considered to partake of secrecy, for it never attracts public observation. But when we come to consider the state and condition of real property in England, where conveyances are not, in general, required to be recorded, a formal proposition to abolish fines was not to have been anticipated. The circumstances of the two countries are totally different. I should suppose that there must be great veneration justly due to a system of transfer by record, which has exhausted so much cultiva
tion, which has been transmitted down, in con*499 stant activity, from distant ages, and on whose
foundations the best part of English real property reposes. In Sergeant Wilson's Essay on Fines, they are said to be "the strength of almost every man's inheritance." Such a great innovation may have an unpropitious influence upon the character, policy, and stability of the English jurisprudence. It will, however, favourably abridge the labours of students, and make great havoc in an English law library. Volume after volume, filled with essays and adjudications upon fines and recoveries, will be consigned to oblivion.*
Besides the extended view of the law of fines and recoveries, in all the abridgments of the law, and in Sheppard's Touchstone, there are the treatises of Pigott, Wilson, Cruise, Preston, Bayley, and Hands, on fines and recoveries. The English put more to hazard, in meddling with their jurisprudence, than any other European nation; and they ought to be more