A Bit of Deed History

In medieval England, title to land was conveyed in fee simple by a feoffment with livery of seisin. The essence of this was a public ceremony, performed before witnesses, called a livery of seisin. The seller and buyer (feoffer and feoffee) met on the land, where the seller gave to the buyer something symbolic of the land like a twig or handful of earth, and made an oral statement transferring the land. No type of document was needed for this sort of transaction until 1677, when the Statute of Frauds required one for all transfers of land titles.

The Statute of Uses in 1535 effectively created an alternative form of conveyance, the bargain and sale. The seller (bargainor) basically promised to deliver the land to the buyer (bargainee) in exchange for a payment. The Statute of Uses provided that any written document transferring use of the land automatically transferred the title as well.The bargain and sale contract was useful because, unlike livery of seisin, the bargain and sale could take place in private and at a more convenient location than on the land itself. However it had the disadvantage that the Statute of Enrollment in 1536 required that a bargain and sale contract conveying land not only be written down, but also that the deed be enrolled in a public registry.

Another type of conveyance used at this time was the grant, which was used to convey an incorporeal or future interest in land. Due to a peculiarity of the law, a deed of grant could not be used to convey a current interest in land. However, a special form of grant called a release could be used to convey a future interest to someone who already had a current interest. [The modern version is called a quitclaim.] This resulted in a very popular form of conveyance called a lease and release. Two agreements were required. First, a bargain and sale contract was executed by the seller to convey a lease on the land. [Unlike an outright sale, leases did not require enrollment in a public registry.] The seller then separately executed a release to grant to the buyer (who was now his tenant) a reversion of the seller’s interest. Voila! The effect was to transfer title to the buyer, since he now owned both the current and future interests in the land.

Although it might seem that a bargain and sale of land was more straightforward, it did require livery and enrollment. A bargain and sale of a lease required neither. The lease and release thus became popular among those who wished to transact land sales in privacy, such as aristocratic families dividing up ancestral estates. [This was obviously a moot point in America.] In fact, the lease and release was heavily used in England well past the American Revolution, until an 1845 statute permitted the use of grants to transfer title to land.

The above information was obtained from: http://www.genfiles.com/legal/Deeds.htm