Estoppel. While the Revised Statutes precluded grants by wrong, every grant was made conclusive against the grantor and his heirs.27 Every grant was also made conclusive as against subsequent purchasers from a grantor or his heirs, except a bona fide purchaser who acquired a superior title by a conveyance first recorded.28 Conveyances to One's Self. At common law a man could not convey an estate to himself as it was necessary to every gift that there should be a feoffor and feoffee.29 But after the Statute of Uses a conveyance might be made to the use of grantor, which to some extent was a conveyance to one's self. If this conveyance took effect by transmutation of the possession, it required a person to be seised to the use. But tenant in fee simple might after the statute covenant to stand seised for himself for life and then remainder to the use of a brother or sister, and the consideration was held sufficient to support the deed.30 At present under our statute it is held that tenants in common may convey to themselves and a third person to hold as joint tenants.31 Conveyance between Husband and Wife. A husband could not at com mon law convey directly to his wife.32 Nor could he even covenant with her alone to stand seised to her use.33 But now by statute husband and wife may convey directly to each other without the intervention of a third person.34 Reservation in Deed Poll. A reservation by a grantor in a deed poll is now deemed a grant by the grantee and operates as such.35 27 1 R. S. 739, § 143; Thompson v. Simpson, 120 N. Y. 270, 286. 281 R. S. 739, 8 144; Hetzel v. Barber, 69 N. Y. 1, 9. 29 Sugden. Intd. to Gilbert, Uses, xli. 30 Sharington v. Strotton, Plowd. 300. 31 Colson v. Baker, 42 Misc. Rep. 407. 32 Litt., § 168; supra, p. 42. 33 Smith, Real & Pers. Prop. 575. 34 Chap. 537, Laws of 1887, § 26, now chap. 14, Consolidated Laws, § 56. 35 Schaefer v. Thompson, 116 App. Div. 775; cf. Boon v. Castle, 61 Misc. Rep. 474. § 246. Certain deeds declared grants. Deeds of bargain and sale, and of lease and release, may continue to be used; and are to be deemed grants, subject to all the provisions of law in relation thereto. Formerly section 211, Real Property Law of 1896, chapter XLVI, General Laws: § 211. Certain deeds declared grants.- Deeds of bargain and sale, and of lease and release, may continue to be used; and are to be deemed grants, subject to all the provisions of law in relation thereto.36 Section 211 was formerly 1 Revised Statutes, 739, section 142: § 142. Deeds of bargain and sale, and of lease and release, may continue to be used, and shall be deemed grants; and as such, shall be subject to all the provisions of this Chapter, concerning grants.37 Indenture. After the Statute of Frauds the old "indenture" was the common form of deed employed by conveyancers. It was written on parchment as many times as there were parties to it, and then the parchment was indented, or irregularly cut into as many parts as there were parties to it. All parties executed the deed. But at present even a "deed poll" is sometimes termed an indenture, and such deeds often retain the language of former indentures. This is no longer very material, though inartificial. At present all deeds are construed in much the same way. 38 "Bargain and Sale." The deed called "bargain and sale" is now the prevailing type of conveyance in the United States. While conveyance by bargain and sale was familiar in equity before the Statute of Uses39 (27 Hen. VIII, chap. 10), this form of conveyance in after times came to owe its force entirely to the Statute of Uses.40 There must have been some one seised to the use in every bargain and sale, or else there could be no execution by force of the statute. If A., being seised, bargained to sell, and received a valuable consideration, the use vested in the bargainee by force of the statute. By statute 27 Henry VIII, chapter 16, all bargains and sales were thereafter to be enrolled. In this way written deeds of bargain and sale became necessary by law before the Statute of Frauds required other conveyances to be in writing. "Bargains and sales," although not common-law conveyances,11 were very prac 36 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 37 Repealed, chap. 547, Laws of 38 See above, pp. 798, 811. tical and simple in operation. When founded on a valuable consideration the fee simple might pass without limitation.12 Remainders and reversions might pass by bargain and sale enrolled, as well as by grant.43 The deed of "bargain and sale" for a year constituted a good lease.44 "Lease and Release." A conveyance substantially by way of lease. and release was probably not unknown before the Statute of Uses,45 but this form of conveyance became popular after that statute when it was known to avoid the necessity of enrollments of deeds of bargain and sale. A bargain and sale for a year upon a pecuniary consideration being made, the legal estate immediately vested in the bargainee by force of the Statute of Uses. This did not require enrollment under the Statute of Inrolments.46 The bargainee could then receive a release of the reversion. Ultimately the lease and release came to be contained in the same deed. Prior to 1788, and while it was thought that the English Statute of Inrolments might extend to New York, the common form of conveyance here was by lease and release. At a later day, however, it was held that that statute did not extend to New York.47 Finally, when the English statutes, were all repealed or re-enacted, bargain and sale deeds were revived and became the more common form of conveyance in New York.48 The deed of lease and release was practically nothing but a release of the reversion to one possessed of a term, in some way, either actually,49 or by force of the Statute of Uses. The release. operated at common law by way of enlargement of the term created by the lease. The learning upon the subject of conveyance by way of lease and release is very comprehensive.50 Conveyances Prior to the Revised Statutes. Both the forms of conveyance last mentioned were in such common use in 1830, that their retention was deemed necessary after the Revised Statutes,51 although such conveyances were, as Mr. Sanders acutely observed, nothing more than declarations of uses,52 and derived their force. and effect primarily from the Statute of Uses. But the revisers of 1829 evidently had in contemplation the deed associated with these forms of conveyance and not the Statute of Uses, for they placed them on the same. footing as "grants," 53 which take effect only from delivery; and on this footing they continue under the present law, taking effect only from delivery of the deed.54 It is obvious that these types of conveyance were thus intended to be put, for the future, on the basis of all written contracts, and thus taken out of the historic realm of conveyances operating under the Statute of Uses.55 Although the real differences between " grants' and contracts or deeds of bargain and sale may not be wide, the historical differences are most marked. Language of Such Deeds. No particular form of words is necessary to constitute a deed of bargain and sale.56 Consideration. A valuable consideration is necessary to support a deed of bargain and sale.57 Effect of Release. To make a deed operating by way of release effectual the grantee must be in possession.58 53 I R. S. 738, § 138. 54 § 244, supra, p. 820. 55 Cf. Bucklin v. Bucklin, 1 Abb. Ct. App. Dec. 242, 247; Cunningham v. Freeborn, II Wend. 240, 248. 56 Long Island R. R. Co. v. Conklin, 29 N. Y. 572, 584; and see above, p. 798. 57 Supra, pp. 818, 826. 58 Miller v. Emans, 19 N. Y. 384; Lewis v. Howe, 64 App. Div. 572, 578; cf. Willard, Real Est, & Conv., 436, 437, and cases there cited. § 247. Conveyance by tenant for life or years of greater estate than possessed. A conveyance made by a tenant for life or years, of a greater estate than he possesses, or can lawfully convey, does not work a forfeiture of his estate, but passes to the grantee all the title, estate or interest which such tenant can lawfully convey. Formerly section 212, Real Property Law of 1896, chapter XLVI, General Laws: § 212. Conveyance by tenant for life or years of greater estate than possessed. A conveyance made by a tenant for life or years, of a greater estate than he possesses, or can lawfully convey, does not work a forfeiture of his estate, but passes to the grantee all the title, estate or interest which such tenant can lawfully convey.59 Section 212 was formerly 1 Revised Statutes, 739, section 145: $145. A conveyance made by a tenant for life or years of a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantee all the title, estate or interest, which such tenant could lawfully convey.co Comment on Section. At the common law alienations by particular tenants of a greater estate than they had severed the feudal relation, or, in other words, was a cause of forfeiture to the feudal superiors, and thus in time, no doubt, by analogy, a cause of forfeiture to him in reversion or remainder.62 In New York this rule existed until the Revised Statutes abolished every vestige of it.63 But even before the Revised Statutes a conveyance by tenant by the curtesy, although purporting to convey a fee, would not always work a forfeiture unless made by feoffment with livery of seisin.64 If a tenant for life or years has, before the wrongful conveyance spoken of in this section, made a good and proper conveyance, or one within his right and power to make, such prior conveyance is good by the common law,65 and the effect of the tortious conveyance is not enlarged by this section, so as to affect harmfully such prior conveyance. 59 Repealed by Real Prop, Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. Co Repealed, chap. 547, Laws of 1896. 61 Not tenants in tail, 2 Black. Comm. 274. 62 Litt. 415; 2 Black. Comm. 274. 4 Kent, Comm. 34; 1 R. S. 739, 63 § 143, 145; Grout v. Townsend, 2 Hill, 554; Sparrow v. Kingman, 1 N. Y. 242, 257; Moore v. Littel, 41 id. 66, 78. 64 Jackson v. Mancius, 2 Wend. 357; cf. Christie v. Gage, 71 N. Y. 189. 65 2 Black. Comm. 275. |