In modern times, down to the year 1841, the kind of conveyance employed, on every ordinary purchase of a freehold estate, was called a lease and release; and for every such transaction, two deeds were always required. From that time to the year 1845, the ordinary method of conveyance was a release merely, or, more accurately, a release made in pursuance of the act of parliament (a) intituled "An Act for rendering a Release as effectual for the Conveyance of Freehold Estates as a Lease and Release by the same Parties." The object of this act was merely to save the expense of two deeds to every purchase, by rendering the lease unnecessary.
A further alteration was then made, by the act to simplify the transfer of property (b), which enacted (c), that, after the 31st day of December, 1844, every person might convey by any deed, without livery of seisin, or a prior lease, all such freehold land as he might, before the passing of the act, have conveyed by lease and release, and every such conveyance should take effect, as if it had been made by lease and release; provided always, that every such deed should be chargeable with the same stamp duty as would have been chargeable if such conveyance had been made by lease and release.
Lease and release.
Act to simplify the transfer of property.
(a) Stat. 4 & 5 Vict, c. 21.
(b) Stat. 7 & 8 Vict. c. 76.
(c) Sects. 2, 13.
This act, however, had not been in operation more than nine months when it was repealed by the act to amend the law of real property (d), which provides, that after the 1st of October, 1845, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. A simple deed of grant is therefore now sufficient to grant the freehold or feudal seisin of all lands (e). But as a lease and release was so long the usual method of conveyance, the nature of a conveyance by lease and release should still form a subject of the student's inquiry; and with this we will accordingly begin.
From the little that has already been said concerning a lease for years (f), the reader will have gathered, that the lessee is put into possession of the premises leased for a definite time, although his possession has nothing feudal in its nature, for the law still recognizes the landlord as retaining the seisin or feudal possession. Entry by the tenant was, however, in ancient times, absolutely necessary to make a complete lease (g); although, in accordance with feudal principles, it was not necessary that the landlord should depart at once and altogether, as he must have done in the case of a feoffment where the feudal seisin was transferred. When the tenant had thus gained a footing on the premises, under an express contract with his landlord, he became, with respect to the feudal possession, in a different position from a mere stranger; for, he was then capable of acquiring such feudal possession, without any formal livery of seisin, by a transfer or conveyance, from his landlord, of all his (the landlord's) estate in the premises. Being already in possession by the act and agreement of his landlord, and under a tenancy recognized by the law, there was not the same necessity for that open delivery of the seisin to him, as there would have been to a mere stranger. In his case, indeed, livery of seisin would have been improper, for he was already in possession under his lease (h); and, as a delivery of the possession of the lands could not, therefore, be made to him, it was necessary that the landlord's interest should be conveyed in some other manner. Now the ancient common law always required that a transfer or gift of every kind relating to real property should be made, either by actual or symbolical delivery of the subject of the transfer, or, when this was impossible, by the delivery of a written document (i). But in former times, as we have seen (k), every writing was under seal; and a writing so sealed and delivered is in fact a deed. In this case, therefore, a deed was required for the conveyance of the landlord's interest (l); and such conveyance by deed, under the above circumstances, was termed a release. To a lease and release of this kind, it is obvious that the same objection applies as to a feoffment: the inconvenience of actually going on the premises is not obviated; for, the tenant must enter before he can receive the release. In the very early periods of our history, this kind of circuitous conveyance was, however, occasionally used. A lease was made for one, two, or three years, completed by the actual entry of the lessee, for the express purpose of enabling him to receive a release of the inheritance, which was accordingly made to him a short time afterwards. The lease and release, executed in this manner, transferred the freehold of the releasor as effectually as if it had been conveyed by feoffment (m). But a lease and release would never have obtained the prevalence they afterwards acquired had not a method been found out of making a lease, without the necessity of actual entry by the lessee.
Act to amend the law of real property.
A lease for years.
The tenant's position altered by entry.
(d) Stat. 8 & 9 Vict. c. 106 s. 2.
(e) By the second section of the art, the stamp duty on this single deed was the same as was chargeable on the lease and release, except the progressive duty on the lease. But the duty on the lease for a year was repealed l>y 13 & 14 Vict. c. 97, s. 6, so far as related to any deed or instrument bearing date after the 10th of October, 1850. This act with many others is now repealed by stat. 83 & 34 Vict. e. 99; and the stamp duties on deeds are now governed by the Stamp Act. 1870, stat. 33 & 34 Vict. c. 97.
(f) Ante, pp. 8,113.
(g) Litt.s. 459; Co. Litt. 270 a.
Inconvenience of lease with entry.