LEASE AND RELEASE. Recent legislation has swept away the mode of conveyance by lease and release, which was formerly almost universal. The importance which this legal device formerly had in the system of conveyancing, makes it necessary to give an account of it here. There are various kinds of release, but that intended in the phrase in question, is the relinquishment of some right or benefit to a person who has already some interest in a tenement, and such interest as qualifies him for receiving or availing himself of the right or benefit so relinquished. (Burton's Law of Real Property, 45.) Before the pass ing of the Statute of Uses " it appears that a lease for two or three years was sometimes made, and perfected by entry of the lessee, for the single purpose of his afterward receiving a release of the reversion. Thus arose a sort of compound conveyance, called a lease and release, which, if the grantor were seised in fee simple, had the same effect as a feoffment." (Ibid., 62.) When it had been determined that the Statute of Uses operated so as to give an estate in land without entry, a lease for a year by bargain and sale was made by the vendor to the purchaser. A use was thus raised to the bargainee, without any enrolment, which in the case of freehold interests was required by the statute of enrolments ; and the use thus raised or created for the bargainee was converted, by the Statute of Uses, into a legal estate. Thus the bargainee became immediately capable of accepting a release of the freehold and rever sion : and a release was accordingly made to him, dated the day next after the day of the date of the bargain and sale. The release made to a purchaser who has an estate by virtue of the bargain and sale may either be a release at common law as referred to in the passage just quoted, or it may be a release under the Statute of Uses, which is now always meant when we speak of the conveyance called a lease and release.
This conveyance is said to have been first contrived by Serjeant Moore, at the request of Lord Norris, in order that some of his kindred should not know, by any search of public records, what settlement he should make of his estate. The validity of it was formerly doubted. But it was resolved (18 Jac. I.) by the chief-justices Montague and Howard, and chief-baron Tanfield, that upon a deed of bargain and sale for years of land, though the bargainee never entered, if after wards the bargainer makes a grant of the reversion, reciting the lease, to divers uses, it was a good conveyance of the reversion, ( Lutwich v. Mitt," Cro. Ja., 604.) And in a subsequent case, where there was a bargain and sale for years, followed by a release, judgment was given, —' that the lease being within the Statute of Uses, there was no need of an actual entry to make the lessee capable of the release; for, by virtue of the statute, he shall be adjudged to be in actual (Barker v. Katie, 2 Mod., 249.)
In consequence of this interpretation of the law lease and release became the most common assurance for the transfer of freehold estates.
Only a nominal consideration was mentioned in the bargain and sale; and it was held that even a reservation of a pepper-corn rent was a sufficient consideration to raise a use by a bargain and sale on which to found a release.
The recital of a lease for a year. in a deed of release, was good evi dence of sash lease against a releaser and all chiming under him (but soot against strangers), without ].roving that there was such a deed, and that It was lost or destroyed. Not only estates in possession. but estates in remainder and reversion were conveyed by lease and release.
Fatatee in remainder and reversion expectant on estates for lives might cooreyed by lease and release; as also incorporeal lereditaments, such as advowroos, tithes, rents, etc., for they are expressly named in the Statute of ]pees, or comprised under the general word heredita scrota. (4 Cru. Dig.. 114, 115.) Leone and release was one of those which were technically called ;nneernt conveyances, in contradistinction to those which are termed lertiesa A conveyance by lease and release did not divest any estate, or create a discontinuance or forfeiture. Thus Littleton says:--" By force of a release nothing shall peas but the right which ho may law f ally and rightfully release, without hurt or damage to other persons, who shall have right therein, after his decease." And in a subsequent section he says'—" If tenant-in-tail lets the land to another for term of years. by force whereof the lessee Lath possession. and the tenant-. in•tail release all his right in the same land, to bold to the lessee and his heirs for ever, this is no discontinuance : but after the decease of the tenant-in-tail, his issue may enter ; for by such release nothing la+.eth but for time of the life of the tenant-in-tail." The Act 4 et 5 Vick c. 21, made the lease for a year unnecessary, and instead thereof it was only required that the act should bo referred to in the releasing clause, which thereupon took the same effect as if the lease had been actually made. Subsequently the Act 8 it 9 Viet. c. 110, by enacting that corporeal tenements should be deemed to lie in grant as well as in livery took away all necessity for the legal device of a release; and the simple word grant now supplies the placq of the old cumbrous machinery.