This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The Statute of Uses, as has been previously explained, gave rise to two entirely new methods of transferring legal estates in land, to-wit, the conveyance by "bargain and sale," and that by "covenant to stand seised;" the former being based upon a use raised in the intended transferee by the payment of a pecuniary consideration, usually merely nominal, and the latter being based on the declaration of a use in favor of one related by blood or marriage, the statute executing the use in both cases.44 One effect of this statute was to enable the owner of land, by a mere contract of sale and the payment to him of a pecuniary consideration, to vest the legal title in another, without any writing or ceremony whatever, and with absolute secrecy, and to prevent such secret conveyances by bargain and sale a statute was passed in the same year, called the "Statute of Enrollments,"45 requiring all bargains and sales of freehold interests, in order to be valid, to be made by deed, that is, writing under seal, enrolled in court or with certain officials. The statute did not apply to conveyances by covenant to stand seised.
42. Litt. Sec.Sec. 64, 65; Co. Litt. 51a; 2 Blackst. Comm. 323: Anonymous, 3 Salk. 157; Windsor v. Collinson, 32 Ore. 297; Long v. Fuller, 21 Wis. 121.
43. Co. Litt. 51b; 2 Blackst. Comm. 323; Eton College v. Winchester, 3 Wils. 468; Cass v. Thompson, 1 N. H. 65, 8 Am. Dec.
36; Dean v. Shelly, 57 Pa. St. 426, 98 Am. Dec. 235; Windsor v. Collinson, 32 Or. 297.
44. See ante, Sec. 100.
45. 27 Hen. VIII. c. 16 (A. D. 1535). See 2 Sanders, Uses & Trusts (5th Ed.) 64; Digby, Hist. Law Real Prop. (4th Ed.) 364.
This statute is probably not in force in any state.46 Clandestine conveyances by bargain and sale being thus prevented by the' Statute of Enrollments, conveyancers, soon after the statute, devised the conveyance by "lease and release," taking advantage of the fact that the statute required the enrollment of bargains and sales of "freehold" interests only. This conveyance, as before explained, consisted of a bargain and sale of a leasehold interest to the intended grantee, which vested him with the legal possession, and this was followed by a deed of release of the reversion remaining in the former owner.47
A conveyance by covenant to stand seised is usually said to be based upon the consideration of blood or marriage.47a But in such case the word consideration is used, not in its technical sense of the equivalent for a promise, but in the sense of motive or inducement for the agreement to stand seised. "The exception in favor of those related by blood or marriage had in truth nothing to do with the doctrine of con sideration and was established in the interest of the
46. See Givan v. Tout, 7 Blackf. (Ind.) 210; Marshall v. Fisk, 6 Mass. 24, 4 Am. Dec. 76; Chandler v. Chandler, 55 Cal. 267; Givan v. Doe, 7 Blackf. (Ind.) 210; opinion of Justices, 3 Binn. (Pa.) 595. Compare Underwood v. Campbell, 14 N. H. 393.
47. 1 Hayes, Conveyancing, (5th Ed.) 76. See ante. Sec. 100.
47a. That a consideration of blood or marriage is necessary, see post, this section, notes 49-51, 63. In Massachusetts the view has been asserted that a covenant to stand seised may be supported by a pecuniary consideration. Trafton v. Hawes, 102 Mass. 533, 3 Am. Rep. 494; Ricker v. Brown, 183 Mass. 424, 67 N. E. 353. See
Gray, Perpetuities, Sec. 57. The same view is adopted in Jackson v. Dunsbaugh, 1 Johns. Cas. 92. It is asserted in support of this view that previous to the statute of enrollments a covenant to stand seised could be supported by a pecuniary consideration, and that after that statute the contrary view was adopted merely to prevent the statute being nullified by regarding conveyances which were in their nature deeds of bargain and sale as covenants to stand seised. But covenants to stand seised appear not to have been recognized previous to the Statute of Enrollments. Professor Ames says that Sharington v. Strotton, Plowd. 298 (amm great English families."48 What degree of relationship is sufficient to support a conveyance of this character appears to have been but little discussed, and no restriction in this regard has been asserted, a covenant to stand seised in favor of a nephew or cousin being-regarded as valid,49 as is no doubt one in favor of a grandchild.50 As regards connection by marriage, it would seem to be necessary that the beneficiary be the wife, or perhaps the husband, of one who is within the necessary degree of blood relationship, so that such a conveyance by A to his daughter-in-law or to his cousin's wife would be valid, but not such a conveyance by one of the latter to A.51 This is by reason of the fact that this form of conveyance was upheld merely to enable one to perpetuate and make provision for his or her own family, and while a conveyance to the wife of one's relative might conduce to this end, a conveyance to a relative of one's wife could not so operate. The valuable consideration necessary to support a conveyance by bargain and sale is either money or money's worth.52 It involves ordinarily the idea of a benefit to the grantor, but presumably a mere detriment to the grantee would be sufficient for this purpose as it is to support an executory contract. A mere promise on the part of the grantee, as to pay money53 or to support the grantor54 is sufficient, and a
1565) "was the first case of this kind." See 21 Harv. Law Rev. at p. 269, Lectures on Legal History, p. 241.
48. Prof. J. B. Ames in 21 Harv. Law Rev, at p. 269, Lectures on Legal History, p. 241.
49. Sugden's Gilbert on Uses, 93; Sheppard's Touchstone, 511.
50. See Hansom v. Buckner, 4 Dana (Ky.) 251; Stovall v. Bar-nett, 4 Litt. (Ky.) 207.
51. See the full discussion by White, J., in Thompson v. Thompson. 17 Ohio St. 649. That a covenant to stand seised in favor of a son in law or daughter in law is valid see also, Gale v. Coburn, 18 Pick. (Mass.) 397; Bell v. Scammon, 15 N. H. 381, 41 Am. Dec. 706; Contra, Corwin v. Corwin, 9 Barb. 219 6 N. Y. 342.
52. 2 Preston, Conveyancing, 373; Jackson v. Pike, 9 Cow. (N. Y.) 69; Redmond v. Cass, 226 111. 120.
53. 2 Sanders, Uses & Trusts (5th Ed.) 56.
Mere condition subsequent in the conveyance, calling for the performance of some act by the grantee, has apparently been so regarded,55 as has a reservation of a rent, of either substantial or nominal value.56 Marriage is also a valuable consideration, in the sense that a bargain and sale to one in consideration of his intended marriage with one of the grantor's family is valid.57