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Lease and Release

Perhaps the majority of title deeds found in deed bundles are in the form of a lease and release. The lease and release was the most popular and widespread way to record simple sales of property from the seventeenth century up to 1845. The lease and release format was also used to convey property for the purposes of mortgages and settlements.

The 'lease' and the 'release' are two separate documents. It is quite usual for one of them to have become separated from the other over time. However, there are clues within the text which make it clear that the deed forms part of a lease and release transaction.

In 1841, the Conveyance by Release Act made it possible to convey land by release only. The lease and release became obsolete and was replaced by a 'statutory release'. Releases were themselves abolished in 1845 and replaced by a simple 'grant', later known as a 'conveyance'.

Purpose

  • Sale of real property (land or buildings) from one party to another, for a monetary consideration
  • Mortgage of real property from a mortgagor to a mortgatee, to raise money
  • Settlement of real property from owners to trustees, to limit its descent to specified people

Features of lease and releases

  • 16th-19th centuries
  • two separate documents, one small (lease), and one large (release)
  • lease and release sometimes sewn together, but more often folded separately
  • lease usually dated a day before the release
  • written on parchment
  • usually written in English
  • indenture (wavy top edge)
  • seal

Important words and phrases

A lease and release records in the past tense what has been done to transfer the property. Conveyance by lease and release was a two-stage process.

First, a leasehold interest in the land was conveyed from A to B by means of a bargain and sale ('the lease'). This bargain and sale did not have to be enrolled, because it did not transfer freehold property. It was not a real lease because the intention was to follow it with a release in order to convey the freehold. The term of the lease, the consideration money, and the rent specified in the lease were all nominal. Usually the land was bargained and sold for a term of 6 months or 1 year, for a nominal consideration of 5 shillings, and a rent of one peppercorn per year.

Form of words in the lease:

[A] hath bargained and sold [or hath granted, bargained and sold] ... from the day next before the date of these presents for and during and unto the full end and term of one whole year [or six months] ... to the intent and purpose that by virtue of these presents and by the force of the Statute made for transferring Uses into possession, that the lands are in actual possession of B ...

At some point afterwards - usually the next day, but not always - A conveyed the reversion of the lease, that is, his right to the freehold property, to B or his trustee ('the release'). At this point the real consideration money for the property was paid. B was now the owner of the freehold. Releases often involved a number of different parties, especially if they were drawn up as part of a family settlement. It can be quite hard to determine exactly what part each party was playing in the transaction.

Form of words in the release:

Hath granted bargained sold aliened released and confirmed [the lands], in his actual possession by virtue of a bargain and sale [recites the terms of the lease] ... for ever

The advantage of the lease and release as a form of conveyance was that neither stage dealt with freehold property. Both stages were technically concerned only with interests and rights. This therefore avoided the requirement to have the conveyance enrolled and made public.

User beware!

Many lease and releases are long and complicated, because the form of a lease and release was flexible enough to be used for a variety of purposes. Further clauses in the release need to be read carefully, to see if they indicate that the lands are being conveyed for a mortgage, family settlement, or other purpose, instead of a simple sale.

Lawyers in the eighteenth and early nineteenth centuries were paid by the line. Therefore the longer and wordier a deed was, the more they got paid! There can be a lot of words in a lease and release (particularly in a release) which are not really necessary to read in order to get the gist of the transaction. Luckily, legal clerks usually marked the beginning of new and important phrases by highlighting or increasing the size of the initial word. This makes the lengthy deed easier to follow.

Example

Ne 6 D 2/31/14-15 - Lease and release from Jonathan Marr to Leonard Norfolk of a messuage and two closes of land at East Markham, Nottinghamshire; 22-23 Mar. 1813

Deed Ne 6 D 2/31/15-15

This is a typical example of deeds of lease and release. There are two separate documents, both written on parchment. The release is written on three large sheets of parchment, 70 cm wide by 56 cm long. The lease is much smaller.

We know it is a lease and release because of the following characteristics:

  • There are two documents, dated on subsequent days
  • Both documents are indentures, that is, the tops of the deeds are cut in a wavy line. This indicates that the deeds were made between two or more parties
  • The lease is for a year, for a consideration of 5 shillings, and a peppercorn rent is specified
  • The release includes the phrase 'granted bargained sold aliened released and confirmed'
  • Both deeds state that the lease is 'by the force of the Statute made for transferring Uses into possession'
  • The consideration is stated in full
  • The land is transferred to Leonard Norfolk and his heirs and assigns (i.e. in fee simple) for ever
  • The deeds have been sealed by the people selling and buying the land

This particular lease and release also includes some more complicated clauses, illustrating the fact that leases and releases were very flexible documents and could 'do' a lot of things at once:

  • A trustee is named who will hold the land 'to the use' of Leonard Norfolk. This was probably necessary because the land was mortgaged
  • The existing mortgage is for 500 years, or until the principal sum is paid off. Norfolk becomes responsible for paying the principal sum of £350 and interest to the mortgagee James Williamson. Sometimes mortgages were assigned in separate documents; however in this case, the mortgage clauses are hidden within the covenants at the end of the release

This précis and partial transcription of the important parts of the lease and release has been broken down into the standard sections common to most deeds from the early modern period onwards.

Date

[Lease:] This Indenture made the Twenty second day of March in the Fifty third Year of the Reign of our Sovereign Lord George the Third by the Grace of God of the United Kingdom of Great Britain and Ireland King Defender of the ffaith and in the Year of our Lord One thousand eight hundred and thirteen

[Release:] The following day, 23 March 1813

Parties

[Lease:] Between Jonathan Marr late of the parish of East Markham in the County of Nottingham but now of East Retford in the said County Brickmaker eldest Brother and Heir at law and also sole Devisee in fee named in and appointed by the last Will and Testament of Matthew Marr late of the parish of East Markham aforesaid Brick and Tile Maker deceased of the one part and Leonard Norfolk of East Drayton in the said County of Nottingham farmer of the other part

[Release:] The first two parties are the same, but there is also a third party - William Nicholson of Dunham in the said County of Nottingham Farmer

Recitals

[Lease:] none

[Release:] Recitals are introduced by the word 'Whereas'. They can be summarised as follows:

(a) Matthew Marr was seized of [owned] the property in question, and devised [left] the property in his will to Jonathan Marr

(b) Matthew Marr died without having revoked his will

(c) Matthew Marr had mortgaged the property on 12 October 1801, by demising it for 500 years to Joseph Williamson

(d) the principal sum of £350 remains owing on the mortgage but all interest has been paid

(e) William Nicholson has contracted for the purchase of the property as agent for and on behalf of Leonard Norfolk.

Operative Parts or 'Testatum'

[Lease:] Witnesseth that for and in consideration of the sum of five shillings of lawful money of Great Britain to the said Jonathan Marr in hand well and truly paid by the said Leonard Norfolk at or immediately before the sealing and delivery of these presents the receipt whereof is hereby acknowledged He the said Jonathan Marr Hath bargained and sold And by these presents Doth bargain and sell unto the said Leonard Norfolk his Executors Administrators and Assigns

[Release:] Now this Indenture Witnesseth that in pursuance of the said recited contract and for and in consideration of the sum of Nine hundred and ten pounds of good and lawful money current in England ... to him the said Jonathan Marr in hand well and truly paid by the said Leonard Norfolk ... And also for and in consideration of the further sum of Three hundred and fifty pounds of like lawful money ... to be paid by the said Leonard Norfolk unto the said Joseph Williamson in satisfaction and discharge of the debt or sum of Three hundred and fifty pounds principal money so due and owing to the said Joseph Williamson as aforesaid [i.e. Leonard Norfolk is buying Jonathan Marr out of the mortgage, and the total consideration is £1,260] He the said Jonathan Marr with the privity consent and approbation of the said William Nicholson testified by his executing these presents Hath granted bargained sold aliened released and conveyed And by these presents Doth grant bargain sell alien release convey and confirm unto the said Leonard Norfolk (in this actual possession now being by virtue of a bargain and sale to him thereof...) and to his heirs

Parcels

[Lease:] All that Messuage Dwellinghouse or Tenement [all these three words mean essentially the same = one house] situate standing and being in the parish of East Markham aforesaid And also all that Close piece or parcel of inclosed land or ground situate lying and being in the parish of East Markham aforesaid called or known by the name of the Howgates Close containing by estimation Three acres be the same more or less (and now used as a brickyard) And also all that other Close piece or parcel of inclosed land or ground situate lying and being in the parish of East Markham aforesaid also called or known by the name of the Howgates Close containing by estimation six acres and six perches be the same more or less which said Messuage and Closes adjoin or are situated immediately contiguous to each other are now or late were in the tenure or occupation of the said Jonathan Marr are bounded respectively on or towards the west by the Great North road on or towards the north by The Duke of Newcastle's Estate on or towards the east by the said Duke of Newcastle and on or towards the south by the said Duke of Newcastle and were heretofore purchased by the said Matthew Marr deceased of Walter Mellor of Tuxford in the said County of Nottingham Gentleman who for a valuable consideration by Indentures of Lease and Release dated the fifth and six days of April One thousand seven hundred and ninety five released and conveyed the same unto the said Matthew Marr in fee simple Together with all and singular houses outhouses edifices brickkiln sheds buildings barns stables dovecotes orchards yards gardens trees woods underwoods .... [the clause continues to list a vast number of things which may or may not have actually formed part of the property in reality]

[Release:] Exactly the same description as given in the lease

'Habendum'

[Lease:] To have and to hold the said Messuage or Tenement Closes pieces or parcels of land or ground hereditaments and all and singular other the premises hereinbefore particularly mentioned and described and hereby bargained and sold or expressed and intended so to be with their and every of their appurtenances unto the said Leonard Norfolk his executors administrators and assigns from the day next before the date of these presents for and during and unto the full end and term of one whole Year from thence next ensuing and fully to be completed and ended Yielding and Paying therefore at the end of the said term unto the said Jonathan Marr his heirs or assigns the rent of a peppercorn only if the same shall be lawfully demanded To the intent and purpose that by virtue of these presents and by force of the Statute made for transferring uses into possession he the said the Leonard Norfolk may be in the actual possession of all and singular the aforesaid premises with their and every of their Appurtenances and may be thereby enabled to take a grant and release of the reversion freehold and inheritance thereof to him the said Leonard Norfolk his heirs and assigns for ever To the uses upon the trusts and to and for the end intents and purposes which are limited expressed and declared of and concerning the same in and by an Indenture of Release of three parts already prepared and intended to bear date the day next after the day of the date of these presents and made or expressed to be made between the said Jonathan Marr of the first part the said Leonard Norfolk of the second part and William Nicholson of the third part

[Release:] To have and to hold the said Messuage or Tenement Closes pieces or parcels of land or ground ... unto the said Leonard Norfolk his heirs and assigns To the uses upon the trusts and to and for the ends intents and purposes hereinafter limited expressed and declared of and concerning the same that is to say ...

The remainder of this 'habendum' clause in the release is written in dense legal language. It is transcribed in full below, with a gloss as to what it actually means. This is a good example of the kind of superfluous writing often used by lawyers at this time:

To the use and behoof of such person and persons for such Estate and Estates Interest and Interest and to and for such ends intents and purposes and upon such trusts and charged and chargeable with such sum and sums of money and in such manner and form and with under and subject to such powers of revocation and new appointment and other powers provisoes conditions limitations declarations and agreements as he the said Leonard Norfolk shall from time to time and at any time or times hereafter by any deed or deeds instrument or instruments in writing to be by him sealed and delivered in the presence of attested by two or more credible witnesses or by his last will and testament in writing or any Codicil or Codicils thereto or by any writing in the nature of or purporting to be his last will and Testament or Codicil or Codicils thereto to be by him duly signed sealed published and declared in the presence of and attested by three or more credible witnesses direct limit or appoint give grant or devise the same ...

[Leonard Norfolk can sell, mortgage, lease or do anything he likes with the land, either by making a deed, or through his last will and testament]

... and for want or in default of any such direction limitation or appointment gift grant or devise or in case any shall be made then subject thereto and to the trusts thereof and when and so soon as the Estate or Estates Interest or Interests thereby directed limited or appointed given granted or devised shall respectively end or determine but in the mean time subject thereto and to the Trusts thereof And as to such part or parts of the same Hereditaments and premises and all such estate and interest therein of which no such direction limitation or appointment gift grant or devise shall be effectually made as aforesaid ...

[All of the land which has not been sold, mortgaged etc. by Leonard Norfolk, and all of the land which has had something done to it which has now ceased (i.e. a mortgage term which has now ended), shall be held as follows:]

To the use and behoof of the said Leonard Norfolk and his assigns for and during the term of his natural life And from and after the determination of that estate by any means in his life time To the use and behoof of the said William Nicholson and his heirs during the natural life of the said Leonard Norfolk In trust nevertheless for and to and for the only benefit of him the said Leonard Norfolk and his assigns And from and after the determination of the estates so limited in use to the said William Nicholson and his heirs during the natural life of the said Leonard Norfolk as aforesaid To the use and behoof of the said Leonard Norfolk his heirs and assigns for ever And to for or upon no other use trust end intent and purpose whatsoever

[Technically, the land will be held by William Nicholson as a trustee during the lifetime of Leonard Norfolk; however, Leonard Norfolk and his assigns (people to whom he might lease or sell the land) will get all the profits and benefits of the land; when the trusteeship is ended, the land will be held by Leonard Norfolk and can pass to his heirs or be sold]

... But subject nevertheless to and charged and chargeable with the aforesaid sum of Three hundred and fifty pounds to be paid by the said Leonard Norfolk out of the aforesaid sum of One thousand two hundred and sixty pounds purchase money unto the said Joseph Williamson his executors administrators or assigns in satisfaction and discharge of the said sum of Three hundred and fifty pounds principal money so due and owing unto him the said Joseph Williamson on his said recited security as aforesaid together with interest from henceforth to grow due for the same sum of Three hundred and fifty pounds until payment thereof at such times and in such manner as the said Three hundred and fifty pounds principal money and the accruing Interest thereof were charged upon and secured to be paid out of the said Messuage or Tenement Closes Hereditaments and Premises hereinbefore particularly mentioned and described and hereby granted and released or expressed and intended so to be at or immediately before the sealing and delivery of these presents

[The mortgage on the land is still in existence, so £350 plus interest are now owed by Leonard Norfolk to the mortgagee Joseph Williamson]

Covenants, Conditions and Provisos

[Lease:] None

[Release:] Covenants are introduced by the word 'And'. They can be summarised as follows:

(a) warranty clause - Jonathan Marr 'hath in himself good right full power and lawful and absolute authority to grant release and convey the said Messuage ...'

(b) clause for quiet possession - it shall be lawful for Leonard Norfolk, his heirs, appointees and assigns to enter the property and take the rents and profits without being subjected to lawsuits or disturbance; and Norfolk shall be 'saved harmless' by Marr [protected from any claims which might arise from former owners or claimants]

(c) clause relating to the mortgage. Norfolk will not be indemnified against claims arising from the mortgage, because it is still in existence and becomes his responsibility. When Norfolk pays back the principal sum of £350, the residue of the term of 500 years shall be assigned to a trustee or trustees, in trust for Norfolk, and in meantime the term of years will 'attend wait upon and go along with the reversion freehold and inheritance of the same Hereditaments and premises to the end to protect and preserve the same from all mesne charges and Incumbrances if any be.'

(d) clause relating to further assurance of title. Marr agrees to execute further legal documents to ensure Norfolk's title to the land, upon request and at Norfolk's cost.

(e) covenant by Norfolk to pay the £350 to Joseph Williamson [sometime within the remainder of the term of 500 years], and in the meantime to pay the interest.

Witnesses

[Lease:] In Witness whereof the said parties to these presents have hereunto set their hands and seals the day and Year first above written. [Signature of Jonathan Marr]

[Release:] In Witness whereof the said parties to these presents have hereunto set their hands and seals the day and Year first above written. [Signatures of Jonathan Marr, Leonard Norfolk and William Nicholson]

Endorsements

[Lease:]

Signed Sealed and Delivered by the within named Jonathan Marr (being first duly Stamped) in the presence of [signatures of Nathl Mason and Gers Reckless]

[Description of the contents:]

Dated 22d March 1813

Mr Jonathan Marr to Mr Leonard Norfolk

Lease for a Year

 

[Release:]

Signed Sealed and Delivered by the within named Jonathan Marr (being first duly Stamped) in the presence of [signatures of Nathl Mason and Gers Reckless]

Sealed and Delivered by the within named Leonard Norfolk in the presence of [signatures of Nathl Mason and Gers Reckless]

Sealed and Delivered by the within named William Nicholson in the presence of [signature of Gers Reckless]

[Description of the contents:]

Dated 23d March 1813

Mr Jonathan Marr to Mr Leonard Norfolk

Release of a Messuage Two Closes and Hereditaments in the parish of East Markham Com. Nottingham

 

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