A release may operate by passing the releaser's estate to the release°, without enlarging the estate which the releasee already has ; and this takes place in the case of joint tenants and coparceuers. Joint tenants of an estate have one undivided title, and they can only convey their estates to one another by release. Coparceners have only one title, for they all make one heir, but they also transmit to their heirs separate estates. Accordingly coparceners can either release to each other or convey their estates by feoffment. In these cases it is not necessary to use any words of limitation in the release, for as the joint tenants and coparceners have all one title to their estate, whatever it may be, a release from one to another passes all the estate of the former to the latter, without any words of inheritance.
If there are three joint-tenants, and one of them releases his estate to another of them, such other becomes joint-tenant of two-thirds of the land with the remaining tenant, and lie holds the released one third as tenant in common with his remaining companion. If a lease rs be made to two one may release to the other before entry ; for there is privity of estate between them, and the release does not operate by enlargement, but by extinguishment of a right.
A man may release all his right iu or to lands, and such release will comprehend all his rights at the time, but not future rights. Au expectant heir cannot release the right which he may have to his ancestor's estate. A right, in order to be capable of being released, must therefore be an existing right and not a possibility. Sometimes, however, a release, though it cannot operate as such, may operate as an estoppel. In a particular case (Bensley r, Burden, 2 S. and S., 519) a son was estopped under a release made by him in his father's lifetime, by the allegation of a particular fact, which was held to conclude the son who made it.
A right may be released to any person who has an estate in the land, either in possession, reversion, or remainder; but if the right be to an estate of freehold, it can only be released to a person who has an estate of freehold. Such a release will be for the benefit of all persons who are entitled to the land by the same means as the releasee.
There is also release by sot or operation of law, as it is termed; that is, from certain acts or events, which are not a direct release, the legal conclusion of a release follows. Instances of this kind of release often occurred in former times, when disseisins were common, and the following is given as an example ; if a disseisee dieseise the heir of the disseisor, and make a feoffinent, this amounts to a release of the right. (Co. Litt., 264, b.)
A Release, not considered as an instrument of conveyance, is the giving up or discharging of a right of action or suit which one man has against another. This release may be either by act of law or by ileed, If a creditor makes his debtor his executor 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 until the exe cutor has obtained probate of the will. The ground of this legal con clusion 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 he ordered to pay the amount of the debt into court, upon admitting it in his answer. 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 conic to his hands, provided he does not thereby prejudice creditors of a superior degree. If a woman marries her debtor or creditor, the extinguishment of the debt is a necessary consequence.
In a release of this kind also the proper 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 be 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 cesdebtee, may also release a debt due to him and his co-partners. An executor may, at law, release a debt due to him and his co-exeoutors 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 discharge 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 fraudulent trans action.