Release
RELEASE (O.Fr. reles, variant of relais, from relaisser, to release, let go, Lat. relaxare), freedom or deliverance from trouble, pain or sorrow, the freeing or discharge from some obligation or debt, the action of letting go or releasing something fixed or set in position. In law, the term is applied to the discharge of some obligation, by which it is extinguished (see DEBT), and to the conveyance of an estate or interest in real or personal property to one who has already some estate or interest therein. For the special form of conveyancing known as " lease and release," see CONVEYANCING.
"Releases are in divers manners, viz.: releases of all the right which a man hath in lands or tenements ; and releases of actions personals and reals, and other things." (Litt. $ 444.)
The release of right in lands or tenements may be considered as a species of conveyance, and the instrument of release must be a deed. The operative words of release are remise, release, renounce, and for ever quit claim (an abbreviation or corruption of quietum clamasse). According to Littleton ($ 508) a release to a man of all demands is the best release that can be made, 'and shall enure most to his advantage;' but Coke remarks that 'claims' is a word of still more extensive import. The parties to a release are the releasor and releasee: the releasor is he who quits or renounces that which he has; the releasee is he who acquires what the other gives up, but he cannot acquire anything by the release, unless he has some estate in or right to the thing which is the object of the release. Releases are either of an estate in land or of a right to land ; or they are releases of things personal. Releases of estates in or rights to land require to be considered separately.
In order that a Release of an estate in land may have its intended effect, there must be privity of estate between the releasor and releasee; that is, the estates of the releasor and releasee must have been acquired by the same conveyance or title, or the one estate must have been derived immediately out of the other. There must be this privity whenever the Release of an estate operates either by way of enlarging the estate of the releasee, or by way of passing to him the estate of the releasor.
It is not in all cases necessary that the person to whom the release is made should be in the actual possession of the land or that he should have the estate immediately preceding that of the releasor. If land be given by C, who is tenant in fee-simple, to A for years, remainder to B for life, C may release his reversion either to A or to B: in the former case A will acquire the reversion expectant on B"s life estate; and in the latter case B's remainder will merge in the reversion, which will become an estate in possession on the determination of A's estate. This is commonly called a release which enlarges an estate; but in the case supposed, if the release is made to A, his estate is not thereby enlarged, and the effect is just the same as if C made him a grant of the revbrsion. The rule of law is undoubtedly true that' when ever a release doth enure by way of enlarging an estate, there must be privitie of estate, as between lessor and lesssee, donor and donee' (Co. Litt., 273, a); but there must also be privity, as in the case supposed, when no enlargement of the estate is made by the release. If C, tenant in Ice simple, had originally granted the estate to B for lite, and B had made a lease for years to A, a release of the reversion in fee from C to A would have no eflect as a release, because there is no privity of estate, as above defined, between A and C. Such a release may however operate as a grant of the reversion, if there are sufficient words for that purpose. When lands are in possession of a lessee at will, for years, or for life, or of an assignee of such lessee, the lessor may release either to the lessee himself, or to his assignee. But a release by the original lessor to an under-lessee, as above stated, will not operate as a release. A copyhold tenant is, strictly, tenant at will to the lord who is the owner of the freehold, and therefore the lord may enfranchise the copyhold by release ; but it is more usual to do it by lease and release, by way of greater caution.
In order that the release may operate to the enlargement of the estate of the releasee, it must contain proper words. Therefore if he who has the fee in reversion or remainder intends to release his estate to a tenant for years or for life, he must release to such tenant and his heirs. If he simply release to the tenant for life, the releasee will have no greater estate than he had before; and if he simply release to the tenant for years, the tenant acquires the estate only for life. (Litt., 468.)
If a lease is made, at common law, of lands in possession, the lessee has no estate till he enters, and therefore can accept no release from the lessor; but a release from the lessor to the lessee before entry of all his right in the land, exlinguishes the rent. In the common conveyance by lease and release, it is usual to give the intended releasee an estate in the land for a year by bargain and sale, which by the statute of uses becomes a vested estate, and the bargainee is therefore qualified to take a release without actual entry, which would bo necessary in the case of lands in possession, if the lease were made at common law, though not requisite in the case of a lease of lands in reversion.
A release may operate by passing the releasor's estate to the releasee, without enlarging the estate which the releasee already has; and this takes place in the case of joint tenants and coparceners. Joint tenants of an estate have one undivided title, and they can only convey their estates to one another by release. Coparceners have only one title, for they all make one heir, but they also transmit to their heirs separate estates. Accordingly coparceners can either release to each other or convey their estates by feoffment. In these cases it is not necessary to use any 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 passes all the estate of the former to the latter, 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 jointtenant of two-thirds of the land with the remaining tenant, and he holds the released one-third as tenant in common with his remaining companion. If a lease be made to two persons, one may refcase 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 ail his right in or to lands, and such release.will comprehend all his rights at the time, but not future rights. An 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 v. Burdon, 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 son 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 of freehold. Such a release will be for the benefit of all persons who are entitled to the land by the same means as the releasee.
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 §iven as an example: if a disseisee disseise the heir of the isscisor, and make a feoffment, this amounts to a release of the right. (Co. Lilt., 264, b.) A Release, 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 bis debtor his executor or one of his executors, the debt is legally extinguished as soon as the creditor dies, though there can be no legal evidence of this extinguishment until the executor has obtained probate of the will. The ground of this legal conclusion 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 arc 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. (H niton r>. Eyre, 6 Taunt., 28'J.) A covenant not to sue for a limited time cannot of course have the effect of a release.
All persons may release, who are not under some leg*] disability, such as infancy. A husband may release a debt due to his wife, because he is the person entitled to receive it; but his release 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-deltee, 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-executors as such; and one of several administrators has the same power: but such releases are ineffectual in equity, unless they are made in the due discharge of the executor's duty. Though one of sevens! co-plaintiffs may release a cause of action, a court of Ut will set aside the release, if it is a fraudulent transaction.
A release may be set aside in equity on the ground of fraud, a term which will include every act of commission or omission that renders the transaction unfair, such as mitrcpresentation or suppression of facts important to be knom-n 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, chanro that it was fraudulently obtained, unless the fraud which n charged is put in issue in the plea, and sufficiently dented b\ answer. The principle of this is fully and clearly stated h\ Lord Redesdale. (Roche v. Morgell, 2 Scho. and Lef, 730. i
It is a general rule that a stranger to a deed cannot maintain an action upon it; for covenants in a deed express*.-', to be made between parties do not give a right of action to a person not a party to the deed, though he is mentioned in it. This principle is applicable to the case of a release; for a release expressed to be made between certain parties cannot be pleaded as an answer to the claims of the rcleaiagainst a third party, even if such release should prufess xi discharge such third party from all such claims. A relent made to one of several joint debtors who are also sevcrallt bound, discharges them all, and the reason given is, that 1 in such a case the joint-remedy being gone, the several is so likewise;' the rule applies to releases by operation uf law, and is true in equity also.
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 is both rights, when the release contains no clear declaration of the demands to which it extends. If this ambiguin 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 onl» demands in right of another, the release will operate upon them. If a man who has a rent-charge issuing out eft certain number of acres of land, releases his right m anj part of the land, he releases all the rent, for it is charge! 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 becomea demand. It is generally considered that a release of all demands would extend to a rent-charge, or a rem 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 relate made before the day of payment appointed by the rondiii.n of'a bond would be effectual ■ a bond being an acknowledgment of a present debt, defeasible by a condition subsequent, which docs 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 excluded from the computation. If tfc« release extends to all demands up to the making of Xi>* release, this will comprehend all demands up to tbe delivery of it. It is usual for releases to contain very general worJv which, in their literal signification, may comprehend tbicrt that the releasor does not intend to release. But wheneveit can be clearly shown, as for instance by a particular recital in a deed, that the general words of release were intendri to be limited, such construction must be put on them, ftr.4 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 the instrument to the facts of the case, for which purpose the state of the facls at the time of the release must be ascertained by extrinsic evidence.
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)
Note - this article incorporates content from The Penny Cyclopaedia of the Society for the Diffusion of Useful Knowledge (1840)
