Defeasance

A defeating: undoing, overthrow, avoidance, destruction, deprivation. '

See Feasance.

Defeasible.

Capable of avoidance or destruction.

Indefeasible.

Not admitting of abolition or impairment. Many constitutional rights are spoken of as indefeasible. Two uses of defeasance are recognized: 1. A collateral deed, made at the same ' Mason v. Aldrich, 36 Minn. 286 (1886), cases. = Union Trust Co. v. St, Louis, &c. E. Co., ante. = Page v'.

Sutton, 29 Ark. 306 (1874): Burrill. See also 64 Ala. 430; 6 Iowa, 265; 29 id. 24S; 11 Neb. 398.. ' Cromwell v. County of Sac, 94 U. S. 356 (1876). See also 3 Col. 277; 6 id.

485; 3 Bl. Com. 397; 34 Cent. Law J. 27 (1887), cases: as against non-residents,; 21 Am. time with another conveyance, containing conditions upon the performance of which the estate created may be "defeated" or totally undone. 1 A bond for a reconveyance upon the payment of a specific sum, at a specified time, made at the same time and of the same date as a deed of conveyance. - Formerly, every mortgagor enfeoffed the mortgagee who simultaneously executed a deed of defeasance, considered a part of the mortga Re, whereby the feoffment was rendered void on repayment of the money at a certain day. But things that were merely executory, or to be completed by matters subsequent, could always be recalled by defeasances made subsequent to the time of their creation.^ It is not of the essence of a mortgage that there should be a defeasance; and there may be a defeasance of a deed of conveyance without constituting it a mortgage. The essence of a defeasance is to defeat the principal deed and make it void ab initio, if the condition be performed. ^ A defeasance made subsequently to an executed contract must be part of the original transaction. At law, the instrument must be of as high a nature as the principal deed. Defeasances of deeds conveying realty are subject to the same rules as such deeds themselves, as to record and notice to purchasers; but in some States notice of the existence of a defeasance, to be binding, must be derived from the public records.* When an absolute deed is shown to have been originally made as security for a loan of money, a court of equity will tre^t it as a mortgage, and allow the grantor to redeem the estate, on the ground that the defeasance was omitted from the deed by fraud or mistake.* But to reduce a conveyance to a mortgage the defeasance may be required by statute to be in 'writing, duly acknowledged and recorded."

3.

A defeasance to a bond, recognizance, or judgment refcovered is a condition which, when performed, defeats or undoes it, in the same manner as a defeasance to an estate. The "condition" of a bond is always inserted in the bond or deed itself; a " defeasance " is made by a separate, and frequently by a subsequent, deed. This, like the condition of a bond, when perf oi-med, disincumbers the obligor's estate.'

See Condition.