BARGAIN AND SALE. A contract or bar gain by the owner of land, in consideration of money or its equivalent paid, to sell land to another person, called the bargainee, whereupon a use arises in favor of the lat ter, to whom the seisin is transferred , by force of the statute of uses. 2 Washb. R. V. 128 ; Bisp. Eq. 419.
Upon principles of equity, any agreement, supported by a valuable consideration, to the effect that an estate or interest In land should be conveyed, as it might be specially enforced in the court of chancery, was held to entitle the purchaser to the use or beneficial ownership according to the terms and intent of the agreement, without any legal conveyance ; and accordingly the ven-' dor was held to be or stand seised to the use of the purchaser. Such transaction, as creating a use executed by the statute, be came technically known as a bargain and sale. As a bargain and sale thus would have been effectual to convey a legal estate under the statute by mere force of the agree ment without any writing or formality, it was thought expedient to add some formal conditions to the operation of the statute upon it ; and it was enacted by a statute of the same session of parliament, 27 Hen. VIII. c. 16, to the effect that no estate of freehold shall pass by reason only of a bar gain and sale, unless made by writing in dented, sealed, and enrolled in manner and place therein provided. This statute ap plied only to estates of freehold, and a use for a term of years might still be created within the statute of uses by mere bargain and sale without deed or enrolment. Leake, Land Laws 108.
This is a very common form of conveyance in the United States. In consequence of the consideration paid, and the bargain made by the vendor, of which the conveyance was evidence, a use was raised at once in the bargainee. To this use the statute of uses transferred and annexed the seisin, whereby a complete estate became vested in the bargainee; 2 Washb. R. P. 128.
All things, for the most part, that may be granted by any deed may be granted by bargain and sale, and an estate may be cre ated in fee, for life, or for years ; 2 Coke 54 ; Dy. 309.
There must have been a valuable consid eration ; Springs v. Hanks, 27 N. C. 30; Wood v. Beach, 7 Vt. 522 ; Hanrick v. Thompson, 9 Ala. 410 ; Cheney's Lessee v. Watkins, 1 Harr. & J. (Md.) 527, 2 Am. Dec. 530; Okison v. Patterson, 1 W. & S. (Pa.) 395 ; Jackson v. Sebring, 16 Johns. (N. Y.) 515, 8 Am. Dec. 357 ; Cro. Car. 529 ; Tiedem. R. P. § 776; but its adequacy is immaterial; thus a rent of one peppercorn was cient; 2 Mod. 249 ; see Leake, Land Laws 109 ; the consideration need not be express ed; Jackson v. Fish, 10 Johns. (N. Y.) 456. See Washb. R. P. ; Hayes v. Kershaw, 1 Sandf. Ch. (N. Y.) 259 ; Jackson v. Leek, 19 Wend. (N. Y.) 339 ; Wood v. Beach, 7 Vt. 522; Eckman v. Eckman, 68 Pa. 460 ; Traf ton v. Hawes, 102 Mass. 533, 3 Am. Rep. 494 ; Perry v. Price, 1 Mo. 553 ; Jackson v. Dillon's Lessee, 2 Over. (Tenn.) 26L The proper and technical words to denote a bargain and sale are bargain and sell; Mitch. R. P. 425 ; but any other words that are sufficient to raise a use upon a valuable consideration are sufficient ; 2 Wood, Cony. 15 ; as, for example, make over and grant; Jackson v. Alexander, 3 Johns. (N. Y.) 484, 3 Am. Dec. 517; release and assign; Lynch v. Livingston, 8 Barb. (N. Y.) 463. See 2 Washb. R. P. 620; Shepp. Touchst. 222.
An estate in futuro may be conveyed by deed of bargain and sale ; Rogers v. Eagle Fire Co., 9 Wend. (N. Y.) 611; 4 H. & N. 277; Drown v. Smith, 52 Me. 141; Trafton v. Hawes, 102 Mass. 533, 3 Am. Rep. 494; Fisher v. Strickler, 10 Pa. 348, 51 Am. Dec. 488; Mellichamp v. Mellichamp, 28 S. C. 125, 5 S. E. 333 ; contra, Sowle v. Sowle, 10 Pick. (Mass.) 376 ; Marden v. Chase, 32 Me. 329; 2 Washb. R. P. *417; but not at common law ; note to Doe v. Tranmar, 2 Sm. Lead. Cas. 473, where the cases are dis cussed.
Consult Gilbert on Uses, Sugden's edi tion; Tiedem. R. P.