BARGAIN AND SALE

BARGAIN AND SALE, a species of conveyance in the English law. It is a kind of a real contract, whereby the bargainer for some pecuniary consideration bargains and sells, that is, contracts to convey, the land of the bargainee; and becomes by such bargain a trustee for, or seized to the use of, the bargainee; and then the statute of uses completes the purchase: or, as it hath been well expressed, the bargain first vests the use, and then the statute vests the possession. But as

it was foreseen that conveyances, thus made, would want all those benefits of notoriety which the old common-law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted in the same session of parliament by statute 27 Hen. VIII. c. 16. that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster-hall, or with the custos rotulorum of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious till about six years before; which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible is it to foresee, and provide against, all the consequences of innovations! This omission has given rise to the species of conveyance by lease and release *.