101* 



RELEASE. 



11ELEABH. 



10SP 



. Accordingly coparcener* can either release to each other or 

 convey their estate* by leoffnient. In these CIMM it U not neoeuary to ' 



u*e auy 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 puo all the estate of the former to the 

 Utter, 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 laud with the remaining tenant, and he holdn the released one- 

 third as tenant in common with his remaining companion. If a, lease 

 be made to two persons, 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 bis right in 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. Burdou, 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 

 soq 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 i>f freehold. Such a release will be for the benefit 

 of all persons who are entitled to the land by the same means as the 

 release*. 



There is also release by act 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 disseise 

 the heir of the disseisor, and make a feotfiuent, this amounts to a 

 release of the right. (Co. Litt, 2U4, b.) 



A Kelease, 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 

 deed. 



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 110 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 be 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 come 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 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 r. Eyre, 6 Taunt., 289.) 



A covenant not to sue for a limited time cannot of course have the 

 effect of a release. 



All person* may release, who are not under some legal disability, 

 such a* infancy. A husband may release a debt due to his wife, 

 because he U the person entitled to receive it ; bu; < 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 debt due to him and his co-oxecutore as such ; and one of several 

 administrators has the same power: but such releases are inu.i 

 in equity, unless they are made hi the due discharge of the exec 

 duty, Though one of several co-plaintiffs may release a cause of a 

 a court of law will set aside the release, if it is a fraudulent trans- 

 action. 



A release may be set aside in equity on the ground of fraud, . 

 which will include every act of commission or omission that r 

 the transaction unfair, such as misrepresentation or suppress 

 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 fraudulently 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 Kedesdale. (Roche 

 v. Morgell, 2 Scbo. and" Lef., 730.) 



The releasor may have demands against another, both in his own 

 right and in another right, such as that of executor for instance ; and 

 accordingly a question sometimes arises whether the release extends to 

 demands in both rights, when the release contains no clear declaration 

 of the demands to which it extends. If this ambiguity exists, it seems 

 to be settled that the release will only extend to such claims as the 

 releasor has in his own right, if he has any demands in both rights ; 

 but if he has only demands in right of another, the release will 

 operate upon them. If a man who has a rent-charge issuing out of a 

 certain number of acres of land, releases his right in any part of the 

 land, he releases all the rent, for it is charged on all the land, and not 

 on any part. A release of all demands means all demands which exist 

 at the time of the release, and it does not extend to anything which, 

 at the time of the release, is not a demand, but afterwards becomes a 

 demand. It U generally considered that a release of all demands would 

 extend to a rent-charge, or a rent-service, parcel of a seignory in gross 

 (but not to a rent-service incident to a reversion), but a release of 

 all actions could not extend further than to a release of arrears of rent 

 then due. Though a release of all actions is not a release of a sum of 

 money not then due, it is said that such a release made before the day 

 of payment appointed by the condition of a bond would be effectual ; 

 a bond being an acknowledgment of a present debt, defeasible by a con- 

 dition subsequent, which does not prevent the right of action from 

 vesting in the mean time. 



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 ex- 

 cluded from the computation. If the release extends to all demands 

 up to the making of the release, this will comprehend all demands up 

 to the deh'very of it. 



It is usual for releases to contain very general words, which, in their 

 literal signification, may comprehend things that the releasor dues not 

 intend to release. But whenever it can be clearly shown, as for 

 instance by a particular recital in a deed, that the general words of 

 release were intended to be limited, such construction must be put on 

 them. Parol evidence is not admissible for the purpose of limiting or 

 enlarging the words of a release ; but, as in the case of wills, it may be 

 admitted where a difficulty arises in applying the words of tho instru- 

 ment to the facts of the case, for which purpose the state of the 

 facts at the timo of the release must be ascertained by extrinsic 

 evidence. 



END OF VOLUME VI. 



UBJLDBUUV AND KVANS. HUNT!:;:*, Will n.VKURS. 



