7 2o BARG 
cured mud: be endured. It is certainly prudent to turn 
every misfortune or difappointment to the bed advantage 
we can; and not, by,indolently repining at what cannot be 
helped, to make bad worfe. 
B ARGA 1 N and SALE, in law,is an indrument whereby 
the property of lands and tenements is for valuable confi- 
deration granted and transferred from one perfon to ano¬ 
ther: it is called a real contract upon a valuable confide- 
raticn, for palling of lands, tenements, and hereditaments, 
by deed indented and enrolled. 2 Injl. 672. Since the in- 
. trodnftion of ufes andtrufts, and the dat. 27 Hen. VI 11 . 
c. 10, for transferring the pofleflion to the ufe, the necef- 
lity of livery of feifin for palling a freehold in corporeal 
hereditaments, has been almoft wholly fuperfeded ; and, 
in confequence of it, the conveyance by feoffment is now 
very little in ufe. Before the datute of ufes, equitable ef- 
tates of freehold might be created through the medium of 
truds, without livery ; and, by the operation of the da¬ 
tute, legal eftates of freehold may now be created in the 
fame way. They who framed the datute of ufes, evident¬ 
ly forefaw, that it would render livery unnecefiary to the 
palling of a freehold ; and that a freehold of fuch things 
as do not lie in grant would become transferable by parol 
only, without any folemnity whatever. To prevent the 
inconveniences which might aril'e from a mode of convey¬ 
ance fo uncertain in the proof, and fo liable to mifeon- 
ftruffion and abufe, it was enafted in the fame fedion of 
parliament, that an edate of freehold fliould not pals by 
bargain and fale only, unlefs it was by indenture enrolled 
in o'ne of the courts at Weftminfter, or in the county, where 
the lands lie; fuel) enrolment to be made within fix 
months after the date of the indenture. Stat. 27 Hen.VUI. 
c. 16. 2 Injl, 675. Dy. 229. Dalt. 6 3. The objects of this 
provilion evidently were, fir ft, to enforce the contracting 
patties to a fee r tain the terms of the conveyance by redu¬ 
cing it into writing ;■ fecondly, to make the proof of it 
_ eafy, by requiring their feats to it, and confequently the 
prefence of a witnefs; and, ladly, to prevent the frauds 
of fecret- conveyances, by fubftituting the more effectual 
notoriety of enrolment for the more ancient one of live¬ 
ry. But the latter part of this provision, which, if it had 
not-been evaded, would have introduced almoft an uni- 
verfal regifter of conveyances of the freehold, in cafe of 
corporeal hereditaments, was foon defeated by the inven¬ 
tion of the conveyance by leafe and releafe, which fprung 
from the omiffion to extend the datute to bargains and 
hales for terms of years; and the other parts of the datute 
were neceflarily ineffeftual in our courts of equity, becaufe 
thefe were dill left at liberty to compel the execution of 
truds of the freehold, though created without deed or 
writing. The inconveniences from this infufficiency of 
the datute of enrolments are now in fome meafure pre¬ 
vented by dat. 29 Car. II. c. 3, which provides againd 
conveying any lands or hereditaments for more than three 
years, or declaring truds of them otherwife than by wri¬ 
ting, 1 
This may ierve at prefent to illudrate the doArine of 
bargain and fale; but to obtain a clear and diftinct idea of 
this part of the law, it will be necefiary to confider the 
following particulars: 
1 . AH things, for the mod part, that are grantable by 
deed in any other way, are grantable by bargain and fale; 
and lands, rents, advowfons, tithes, &c. may be granted 
by it, in fee-fimpie, fee-tail, for life, &c. j Rep. 176. u 
Hep. 25. Any freehold or inheritance in pofieffion, rever- 
iion, or remainder, upon an eftate for years, or life, or in 
tail, may be'bargained and fold, but the deed (ball be en¬ 
rolled. 2 Co. 54. Dyer 309. 2 Injl. 671. But, if tenant for 
life bargains and fells his land by deed enrolled, it will be 
a forfeiture of his edate. 4 Leon. 231. But a man feifed 
of a freehold may bargain and fell for years, and this fhall 
be executed by the datute of ufes. 27 Hen. VIII. c. 10. 
A man potfefted of a term cannot bargain and fell it fo as 
to be executed by the datute. 2 Co. 35. Poph. 76. A bar- 
gainjmd hale of the profits of land is a bargain and fale 
A I N. 
of the land itfelf; for the profits and the land are the fame 
thing in fubftance. Dyer, 71. A rent in eft may be bar¬ 
gained and fold, becaufe this is a freehold within.the da¬ 
tute; and before the datute a rent newly created might 
be bargained and fold, becaufe when money, as an equiva¬ 
lent, was given, and ceremonies or words of law were 
wanting, the Cha'ncery fupplied them ; but k feems, that 
fince the datute a rent newly created cannot be bargain¬ 
ed and fold, becaufe there ought to be a freehold in fume 
other perfon, to be executed in cefui que ufe-, but here caa 
be no feifin of his rent in the bargainor, becaufe no man 
can be feifed of a rent in his own land, and confequently 
there can be'no eftate to be executed in the bargainee. 
Kclw'. 83. 1 Co. 12 6. 1 And. 327. 1 Jones, 175. If A by in¬ 
denture enrolled bargains and fells lands to B and his heirs, 
with a way over other lands of A, this is void as to the 
way ; for nothing but an ufe paffes by the deed, and there 
can be no ufe of a thing not in rjje, as a way, common, 
&c. before they are created. Cro. Jac. 189. 
II. The king, and all other perfons that cannot be feifed 
to a ufe, cannot bargain and fell ; for, at common law, 
when a man had fold his land for money without giving 
livery, the ufe only palfed in equity, and this is now exe¬ 
cuted and becomes a bargain and fale by the ftatute: but 
antecedent to any fuch execution there muff be a ufe well 
raifed, which cannot be without a perfon capable of being 
feifed.to a ufe, which the king is not, there being no means 
to compel him to perform the ufe or truft ; for the Chan¬ 
cery lias only a delegated power from the king over the 
confidences of his fubjedfs; and the king is the univerfal 
judge of property, and ought to be perfectly indifferent, 
and not to take upon him the particular defence of any 
man’s eftate as a truffee. Brc, Feoffment to Ufes 33. Hard, 
468. Pop/i. 72. 
If tenant in tail bargains and fells his land in fee, this 
paffes an eftate determinable upon the life of the tenant in 
tail; for at common law the ufe could not be granted of 
any greater eftate than the party had in him ; now tenant- 
in tail had an inheritance in him, but lie could difpofe of 
it only during his own life; and therefore, when he fells 
the ufe in fee, cefui que ufe has a kind of an inheritance, 
yet determined within the compafs of a life ; and the fta¬ 
tute executes it in tlie fame manner as he has the ufe, and 
confequently he will have fome properties of a tenant in 
fee, and fome of a tenant for life only ; but, if tenant for 
life bargains and fells in fee, this paftes only an eftate for 
life, for he could not pafs the ufe of an eftate for life to 
. the bargainee, and the ftatute executes the poffelfion as 
the party has the ufe. 10 Co. 96. 1 Saund. 260. 1 Co. 14. 
Co. Lit. 151. 
A man may bargain and fell to a corporation, for they 
may take a ufe, though the money be given by the govern¬ 
ors in their natural capacity. 10 Co. 24. 2 Rol. Air. 78S. 
A man may bargain and fell to Iris fon ; but then the con- 
fideration of money ought to be exprelfed, and it ought to 
have all the other circumftances of bargain and fale; but 
this (ball operate as a covenant to (land feifed, if there be 
none but the confideration of natural love and affeCtion 
expreffed. 7 Co. 40. Cro.Eliz. 394. 1 Vent. 137. 1 Lev. 56. 
But, if a fon and heir bargains and fells the inheritance of 
his father, this is void, becaufe he hath no right to trans¬ 
fer; the fame law of a releafe; Keil. 84. Co. Lit. 265. If 
an infant bargains and fells his land by deed indented and 
enrolled, yet he may plead non-age ; for notwithftanding 
the ftatute the bargainee claims by the deed as at common 
law, which was, and therefore is (till, defeazible by non¬ 
age. 2 Inf. 6 73. If a hufband feifed of lands, in right of 
his wife, or tenant in tail, bargains and fells the trees 
growing on the lands, and dies before feverance, the bar¬ 
gainee cannot afterwards cut them down and take them 
away. Mo. 41. If there be two jointenants, and one of 
them makes a bargain and fale of his own eftate in fee, and 
then the other dies, the other moiety (hall furvive to the 
bargainor: for, fince the freehold is in the bargainor, the 
inheritance continues; but, if fuch jointenant had bar¬ 
gained 
