Release

Is both verb and noun. It may be, and often is, used in the general sense of discharge or surrender. Thus, when it is said that acts of a creditor are an implied release, or that a person is released by operation of law, no instrument is implied, but the abstract idea of abandonment or extinguishing some right is the one presented. So release is the operative verb in the instrument known as " a release," and presents the same idea. But, more technically, release is usually so considered; yet all of which, when closely examined, are seen to involve the notion of a surrender by one person of some claim or estate to another. In the law of debtor and creditor, the word is used with this sense evident. Release is a formal, solemn instrument whereby the creditor surrenders or relinquishes to his creditor whatever claim is designated. It imports voluntary discharge of the debt, — discharge, not by payment of the demand, but by an abandonment of it; for, even if there is a consideration passed for the release, or if the release is given upon a part payment, this is presented not in the aspect of a part payment, as in accord and satisfaction, but in that of a price paid to induce the creditor to forego his claim. Consideration is, however, not necessary: the release, being under seal, is sufficient, if it forgives and relinquishes the indebtedness. It may embrace a single demand only, or may extend to and discharge all claims and demands of the party giving it. A release of this latter character is known as a " release in full of all demands;" and an exchange of such releases is a common mode of closing complicated accounts or business relations. Subsidiary to this employment of the word are two uses deserving of distinct mention. One is the release of interest of a witness. Under the common-law rule, that a person interested in the event of a suit is incompetent to testify on the trial, it has been very usual to restore the competency of a disqualified person whose testimony in a given case was necessary, by giving to hira, or inducing him to make, a release of that interest, whatever it might be. Another is the release commonly given by a cestui que trust — such as a ward on settling with a guardian; a beneficiary of an estate or fund, temporarily held in trust, on closing the trust — to his trustee; discharging the latter from further claim or liability. Under circumstances of various cases, instruments of these kinds may present peculiar features; In English conveyancing, the term release, as the name of an instrument, is applied to several forms of deeds, all which, however, involve the ideas that two persons have each an interest in the property in question, and that the one who has only a right abandons or siu'renders his interest to the other one, who has the possession. Blackstone classes the I'elease among the secondary or derivative sort of conveyances, and defines it as a discharge or conveyance of a man's right in lands or tenements to another that hath some former estate in possession. Other definitions have been given; as by Burton: The relinquishment of some right or benefit to a person who has already some interest in the tenement, and such interest as qualifies him for receiving or availing himself of the right or benefit so relinquished. By Cruise: A discharge or conveyance of a man's right in lands or tenements to another who already has an estate in possession; as if A has a lease of lands for a term of years, and B has the remainder or reversion in fee, — here the fee-simple of the lands may become vested in A, by B executing a release of them to A. By Mozley and Whiteley: A discharge or conveyance by one who has a right or interest in lands, but not the possession, whereby he extinguishes his right for the benefit of the person in possession. By the New Abridgment: The conveyance of a man's interest or right which he hath to a thing, to another who hath possession thereof, or some estate therein. By Stephen: A conveyance of an ulterior interest' in lands or tenements to a particular tenant, or of an undivided share therein to a co-tenant (the releasee being in either case in privity of estate with the releasor), or of the right to such land or tenements to a person wrongfully in possession thereof. By Watkins: The relinquishment of a right or interest in lands- or tenements to another who has an estate in possession in the same lands or tenements. By the Touchstone: The conveyance of a man's interest or right which he hath unto a thing, to another that hath the possesdescribed in these definitions may operate in either of five somewhat different modes: 1. By passing an estate; as where a joint-tenant or coparcener conveys his estate to his co- joint-tenant or coparcener. In consequence of the privity between such parties, a fee-simple will pass, without any words of limitation; and tenants in common cannot thus release to one another, since they have distinct interests in the property.

2.

By passing a right; as in the case of a disseisee surrendering his right to a disseisor, his heir, or grantee. Here words of limitation are not necessary, since the subject of transfer is a simple right, which, once discharged, is for ever eictinguished, and not an estate, which may be qualified or restricted. The difference between this and the previous mode is, that the former passes an estate where a privity exists between the parties: this passes only a right, and therefore privity is not necessary.

3.

By extinguishment; as when the lord releases his seigniorial rights to his tenant, or when a life-tenant having conveyed a greater estate than he owns, the expectant releases his right to the tenant's grantee.

4.

By enlarging a particular estate into an estate commensurate with that of the person releasing. In these cases, a privity of estate must at the time exist between the releasor and the releasee, who must have an estate actually vested in him susceptible of enlai-gement.

5.

By entry and f eoffilient; as where a disseisee releases to one of two disseisors, who then becomes as solely seised as if the disseisee had entered upon the property, put an end to the disseisin, and then enfeoffed such disseisor. The form of conveyance known in English law as lease and release appears to be a device to bring the ordinary case of a conveyance of land within the conditions indicated by the fourth category above. Under those conditions, an owner of the fee could not convey by release to a stranger, for want of any estate in the latter. Accordingly, he first executed and delivered to the estate in the latter capable of enlargement, and created a privity of estate enabling a release to operate; the proposed purchaser held a term in the land, and the former owner held a reversion. This being accomplished, the former owner executed a release of his reversion to his tenant. The two instruments operated as a complete conveyance of the fee. We believe, however, that these forms have not been much in use in the United States. There is, however, a release of common use in American conveyancing, where mortgagor and mortgagee desire to set some portion of the mortgaged premises free from the lien of the mortgage, without discharging the debt. Thus, if a mortgagor has opportunity to make sale of one of several lots embraced in one mortgage, but cannot do so unless he can pass title free of the mortgage, he may arrange with the mortgagee, on any terms and consideration satisfactory to the parties, for a release of that lot. This being duly made and recorded, the particular lot designated is set free, while the mortgage remains in force as an incumbrance on the residue of the premises which it describes. Within the meaning of the common law, a paper purporting to be a receipt by a seaman to the master of his vessel for twentyfive cents, " for assault and battery, in full of all dues and demands," having a witness's name, and two wafer seals, neither of which are proved to be the seaman's, is not a release.

Mitchell v. Pratt, Taney, 448.

That a release is a species of conveyance, see Palmer v. Bates, 22 Minn. 532. That the verb release may be operative to convey, where an intent to convey appears, although the party to whom the instrument containing it is given is not in possession, see Jackson v. Fish, 10 Juhns. 456; Lynch v. Livingston, 6 N. Y. 422. Release to uses. The conveyance by a deed of release to one party to the use of another is so termed. Thus, when a conveyance of lands was effected, by those instruments of assurance termed a lease and release, from A to B and his heirs, to the use of C and his heirs, in such case C at once took the whole fee-simple in such lands; B, by the operation of the statute of uses, being made a mere conduit-pipe for conveying the estate to C. Brown. RELEASEE; RELEASOR.

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