An exchange is a "mutual grant of equal interests," the transfer of one estate being the consideration for the transfer of the other. Exchange applies to transfers of estates in expectancy as well as of those in possession.49 But estates which are exchanged must be of the same kind, as a fee simple for a fee simple, and not a fee simple for a life estate. The estates, however, need not be of the same value.50 To make an exchange effectual, there must be an entry, though no livery of seisin is necessary. If the estates are not in possession, a deed is required, and in the deed the word
43 2 Bl. Comm. 317; Huff v. Mccauley, 53 Pa. St 206; Drake v. Wells, 11 Allen (Mass.) 141. As to a reversion, see Doe v. Cole, 7 Barn. & C. 243. 44 Ross v. Adams, 28 N. J. Law, 160; Peck v. Walton, 26 Vt. 85. 45 2 Bl. Comm. 317. 46 Williams v. Downing, 18 Pa. St. 60. 47 1 Stim. Am. St. Law, § 4143. 48 Ante, p. 128.
49 2 Bl. Comm. 323. And see Long v. Fuller, 21 Wis. 123. 50 Wilcox v. Randall, 7 Barb. (N. Y.) 633.
408 title. (Ch. 16
"escambium" had to be used at common law, and no equivalent expression was sufficient,51
We now come to the secondary conveyances, the first of which is release. A release technically is the conveyance of a future estate to one having an estate in possession, though, if the grantee has a constructive possession, it is sufficient. For a release no livery of seisin is necessary, but the future estate must be an immediate one; that is, with no intervening estate between the one in possession and the estate which is released.53 A release is like our modern quitclaim deed, except that in the quitclaim possession in the grantee is not necessary.54 And, further, in the release, privity of estate between the parties was required.55 The usual words in the release are "demise, release, and forever quitclaim."
A confirmation is a conveyance used to make good a former voidable conveyance.56 It cannot be used if the conveyance which it is attempted to validate was originally void,57 though such an instrument would now by many courts be made operative as some other form of conveyance; for instance, as a bargain and sale.58 The operative words used in a confirmation are "given, granted, ratified, approved, and confirmed."
A surrender is the converse of a release,-that is, it is a conveyance by one in possession of a present vested estate of his in51 2 Bl. Comm. 823. 52 Ante, p. 344. 53 2 Bl. Comm. 324.
54 Doe v. Reed, 5 111. 117; Kerr v. Freeman, 33 Miss. 292. 55 Smith's Heirs v. Bank, 21 Ala. 125.
56 Adlum v. Yard, 1 Rawle (Pa.) 171, 177; Ing v. Brown, 3 Md. Ch. 521; English v. Young, 10 B. Mom (Ky.) 141 57 Branham v. Mayor, etc., 24 Cal. 585; Barr v. Schroeder, 32 Cal. 609. 58 Fauntleroy's Heirs v. Dunn, 3 B. Mon. (Ky.) 594.
Terest to one entitled to the next estate in the remainder or reversion,59 as in a release, privity of estate between the parties is necessary, and the surrender can be only to one who holds the next immediate estate.60 No deed, however, is necessary to the validity of a surrender.61 The technical words used for a conveyance operating as a surrender are "surrendered, granted, and yielded up." Quitclaim deeds are now used in place of surrenders.
An assignment is, as we already know, the term applied to a conveyance of a leasehold which is already in existence.62 So, too, there may be an assignment of a mortgage.63
A defeasance has been treated of in connection with mortgages, it being a condition, either in the mortgage or in the separate in strument, which makes the mortgage void on the performance of the condition.64
59 Martin v. Stearns, 52 Iowa, 345, 3 N. W. 92; Scott's Ex'r v. Scott, 18 Grat. (Va.) 159.
60 2 Bl. Comm. 326.
61 Milling v. Becker, 96 Pa. St. 182; Whitley v. Gougb, Dyer, 140b; Thomas v. Cook, 2 Barn. & Aid. 119; Nickells v. Atherstone, 10 Q. B. 944. Cf. Dodd t. Acklom, 6 Mon. & G. 672; Phen6 v. Popplewell, 12 C. B. (N. S.) 334. But see Auer v. Penn, 99 Pa. St. 370; Magennis v. Maccullogh, Gilb. Cb. 235; Roe v. Archbishop of York, 6 East, 86. And see Harnerton v. Stead, 3 Barn. & C. 478. A surrender may be implied by the acceptance of another lease, Ive v. Sams, Cro. Eliz. 521; Lyon v. Reed, 13 Mees. & W. 285; but not if the second lease is void, Davison v. Stanley, 4 Burrows, 2210; Doe v. Courte-nay, 11 Q. B. 702; Doe v. Poole, 11 Q. B. 713. And see Schieffelin v. Carpenter, 15 Wend. (N. Y.) 400; Coe v. Hobby, 72 N. Y. 141.
62 See ante, p. 147.
63 See ante, p. 205. And see Cowles v. Ricketts, 1 Iowa, 582.
64 See ante, p. 183, and 2 Bl. Comm. 327.
In treating of equitable estates it was seen that the statute of uses made it possible to convey lands by instruments which would have no effect at common law.65 Three conveyances operating under ihis statute came into general use. They were covenants to stand seised, bargain and sale, and lease and release. These conveyances are used to create legal estates. The conveyance itself transfers an equitable estate,-that is, a use,-and the statute executes the legal estate in the cestui que use, by transferring the seisin to him.66
Covenant to Stand Seised.
A covenant to stand seised is a conveyance operating under the statute of uses, in which the consideration is either blood or marriage; that is, only a good consideration is required.67 In Massachusetts no consideration whatever is required for the validity of a covenant to stand seised.68 This form of conveyance is practically obsolete in the United States, though the courts, in order to give effect to the intention of the parties, will sometimes construe a conveyance to be a covenant to stand seised.69 From the nature of the consideration it could be used only to convey land to a husband or wife, children, or other kinsmen.