DEFEASANCE e 1 fr. (frfrisance, from thla ire, Fr. a, fai•,. to make void). A proviso annexed to a conveyance of land or jnod., whereby the latter shall become void in some specified event. At entOnam hriv. the term was confined In ,sneli a provis.1 contained in a separate instrument from the net or deed of ofinveyance, the term condition la.ing proper to describe a similar term or pros i-ion contained in or forming a part of the conveyance _kt the present lilac.. how ever. the latter is often referred to as a clause of defeasance„ It is commonly employed to effect a mortgage. which is, properly speaking. a con veyance of property with a defeasance reinstating the title of the mortgagor upon the payment of the mortgage debt. In the United States the defeasanee is usually incorporated in the mort gage deed, but in England a mortgage often takes on the form of an ahsolute deed with a separate deed of defeasance, made by the mortgagee to the mortgagor. specifying the condition on which the conveyance of the property is to heeonie void. ordinarily, a instrument of defeasance must be delivered at the same time as the deed of eonveyanee which it is intended to atreet, so as to form part of the same transaction. If
given siihse,plently. it may have the effect of it •nvenant, ei forceable in a separate action by the grantor of II e property, 11111. it will not, in tat it event. convert the grant into a mortgage.
At common law it is also necessary that a separate defeasanee. in order to have the in t, tided riper. sliotild are 'nf as high a as the isito.eyanee itself. that is. should also be in the form of a deed. But the courts of equity Imve always admitted parol evidence of t he agreement, understanding. and purpose which a enaveance was made, and hay'. given effect to sueli a proviso. esen though it was not eitilmdied in a deed or other written forth. Ac cordingly, an absolute deed conveying a parcel of land for the real purpose of seenring the pay ment of n debt is, in practical effect, a mortgage. and May be redeemed as such. In New 'York and a few other States a pand defeasance may also proton in the of common law, though thi, has not beeoin• the practice generally in the t toted State. or in England. See CoNDITION; Aloar(...kt.t..; and the nutlioritie.s there referred to.