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Release

debt, estate, releases, debtor, words, law, releasor, equity, executor and creditor

RELEASE. " Releases are in divers manners, viz. : releases of all the right which a man hath in lands or tenements ; and releases of actions personals and rails, and other things." (Litt § 444.) The former kind of release may be considered as a species of conveyance, and the instrument of release must be a deed. The operative words of release are remise, release, renounce, and for ever quit claim (an abbreviation or corrup tion of quietum clamasse). According to Littleton (§ 508), a release to a man of all demands is the best release that can be made, "and shall ensure most to his advantage ;" hut Coke remarks that " claims " is a word of still more exten sive import. The parties to a release are the releasor and the releasee: the releasor is he who quits or renounces that which he has; the releasee is he who acquires what the other gives up, but he cannot acquire anything by the release, unless he has some estate in or right to the thing which is the object of the release.

Releases are either of an estate in land or of a right to land; or they are re leases of things personal. Releases of estates in or rights to land form a part of the law of the acquisition of real pro PertY• In order that a Release of an estate in land may have its intended effect, there must be privity of estate between the re leasor and releasee; that is, the estates of the releasor and releasee must have been acquired by the same conveyance or title, or the one estate must have been derived immediately out of the other. There must be this privity whenever the Release of an estate operates either by way of enlarging the estate of the leases, or by way of passing to him the estate of the releasor.

A Release, not considered as an in strument of conveyance, is the giving up or discharging of a right of action or snit which one man has against another. This release may be either by act of law or by deed.

If a creditor makes his debtor his ex ecutor or one of his executors, the debt is legally extinguished as soon as the creditor dies, though there can be no legal evidence of this extinguishment unfit the executor has obtained probate of the will. The ground of this legal conclusion is, the union of creditor and debtor in the person of the executor, who would be a necessary party to an action at law against himself. But in equity so far is the debtor from being released, that the debtor executor is considered to have received the debt, and to have it as assets in his hands. Accordingly in a suit in equity against him, he may be ordered to pay the amount of the debt into court, upon admitting it in his an swer. If a debtor appoint his creditor his executor, the creditor executor, both at law and in equity, may retain his debt out of the assets which come to his hands, provided he does not thereby pre judice creditors of a superior degree. If a woman marries her debtor or cre ditor, the extinguishment of the debt is a necessary consequence.

In a Release of this kind also the pro per words are remise, release, and quit claim; but any words are sufficient for the purpose which clearly express the intention of the parties to the deed. If a

man covenants with another that he will never sue him, this is legally construed to be equivalent to a release, because the same end would be ultimately effected by virtue of this covenant, as if there were an absolute release. But there are cases in which a perpetual covenant not to sue one debtor will not discharge a co-debtor. (Hutton v. Eyre, 6 Taunt., 289.) A covenant not to sue for a limited time cannot of course have the effect of a release.

All persons may release, who are not under some legal disability, such as infancy. A husband may release a debt due to his wife, because he is the person entitled to receive it ; but his release of a debt due to the wife extends only to such debts as are demands at the time of the release. A partner, or other co debtee, may also release a debt due to him and his co-partners. An executor may, at law, release a due debt to him and his co-executors as such ; and one of several administrators has the same power : but such releases are ineffectual in equity, unless they are made in the due iischarge of the executor's duty. Though one of several co-plaintiffs may release a cause of action, a court of law will set aside the release if it is a fraudu lent transaction.

A release may be set aside in equity on the ground of the fraud, a term which will include every act of commission or omission that renders the transaction unfair, such as misrepresentation or sup pression of facts important to be known to the releasor. A plea of a release is no answer to a bill in equity which seeks to set aside the release on the ground of fraud, or which, anticipating a plea of the release, charges that it was fraudu lently obtained, unless the fraud which is charged is put in issue in the plea, and sufficiently denied by answer. The principle of this is fully and clearly stated by Lord Redesdale. (Roche v. Morgell, 2 Scho. and Lef., 730.) A release is generally so expressed as to include all demands up to the day of the date of it ; but in this case the day of the date is excluded from the compu tation. If the release extends to all de mands up to the making of the release, this will comprehend all demands up to the delivery of it.

It is usual for releases to contain very general words, which, in their literal signification may comprehend things that the releasor does not intend to re lease. But whenever it can be Nearly shown, as for instance by a particular re cital in a deed, that the general words of release were intended to be limited, such construction must be put on them. Parol is not admissible for the purpose of limiting or enlarging the words of release ; but, as in the case of wills, it may be admitted where a dif ficulty arises in applying the words of the instrument to the facts of the case, for which purpose the state of the facts at the time of the release must be ascer tained by extrinsic evidence.