About that lease and release…

You’ll see it all over the land records of colonial America.

In one document, person A leases the land to person B.

And in another, often a day or two later, and sometimes even on the same day, person A releases the land to person B.

So, for example, on the 23rd of November, 1737, Henry Kendall of the County of Orange, Virginia, leased to Spencer Bobo of the County of Caroline, Virginia, one 50-acre tract of land on the north side of the Robinson River, for five shillings sterling.¹ The very next day, on the 24th of November 1737, Henry Kendall released that same tract of land to Spencer Bobo “for and in Consideration of the full Sum of thirty pds Current Money of Virginia.”²

Okay, what’s up with that?

Now The Legal Genealogist freely admits… they don’t teach this in modern law school property courses — this isn’t something anybody with today’s legal training is likely to have encountered.

In other words, yep. I had to look it up too.

The first thing I learned was that this is, by definition:

A species of conveyance much used in England, … thus contrived: A lease, or rather bargain and sale upon some pecuniary consideration for one year, is made by the tenant of the freehold to the lessee or bargainee. This, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for one year, and then the statute immediately annexes the possession. Being thus in possession, he is capable of receiving a release of the freehold and reversion, which must be made to the tenant in possession, and accordingly the next day a release is granted to him. The lease and release, when used as a conveyance of the fee, have the joint operation of a single conveyance.³

R-i-i-i-i-g-h-t.

About as clear as mud, isn’t it?

So let’s see what else we can find.

Merriam-Webster says it’s “a nearly obsolete mode of conveyance under the Statute of Uses by means of a bargain and sale for a leasehold interest conventionally for a year, which under the statute vested the leasehold estate without entry, with a subsequent release vesting the fee in the lessee without entry or livery of seisin.”⁴

Sorry. Not all that much better.

The Oxford Reference website says it’s “A method of transferring land from one party to another without the necessity of enrolling a deed. The purchaser first took a lease of the property for one year (thus avoiding the need to enrol), then on the following day the vendor conveyed to him the reversion of the lease. The records of the transaction consisted of two documents, the lease and the release. The method remained popular until 1845.”⁵

A bit closer, maybe… but still not clear.

According to the website of the Fairfax County, Virginia, Circuit Court Historic Records Center, “Deeds of lease and release are often found in the Northern Neck and older counties. The lease, listing a nominal sum, is followed by the release noting the actual sale price. The lease may predate the release by a day, a week, or even a year. Together the two documents make up a legal deed and should not be confused with a simple lease to rent land.”⁶

Yeah, maybe we’re not confused about it being a simple lease to rent land, but we’re still confused…

Over to Wikipedia, and we actually get a pretty good definition: “Lease and release is literally the lease (tenancy) of non-tenanted property by its owner followed by a release (relinquishment) of the landlord’s interest in the property. This sequence of transactions was commonly used to transfer full title to real estate under real property law. … Between its parties it achieves the same outcome as a deed of grant/transfer/conveyance.”⁷

Now we’re getting somewhere. This isn’t a lease followed by another lease (re-lease). The land gets leased by the owner person A to the ultimate buyer person B, and then the owner person A releases the buyer person B from ever having to give the land back when the lease term ends.

Okay… Got it. A lease following by a release (giving up) of the right ever to get the leased land back, and taken together, it’s the same as a deed selling the land outright. And if you want a more thorough explanation of just how that worked, the University of Nottingham Manuscipts and Special Collections has a good overview of the ins and outs of lease and release.⁸

But… but… but why? Why in the world use two documents instead of one?

Wikipedia gives a clue: “Lease and release was a mode of conveyance of freehold estates formerly common … for tax avoidance …”⁹

Aha! It’s a tax dodge! And when you consider the history of this form of land transaction, that makes sense. You see, in the 1530s, Henry VIII of England got a couple of laws passed that any document selling land had to be in writing and enrolled — recorded — in a registry maintained by public officials in the area. But neither a lease nor the release (the “landlord” giving up the right to get the land back) was considered a sale of land, so it wasn’t among the documents that had to be recorded. And what the Crown didn’t know about, it couldn’t tax.¹⁰

But… but… but… there wasn’t any requirement in colonial America that deeds be recorded. So why did this catch on here?

Nobody knows for sure. One good possibility is that that’s the way it had been done in England since the days of Henry VIII, and so much of what gets done in the law is because “it’s always been done that way.”

But the explanation on the University of Nottingham website gives a hint of another possibility — one that, personally, I’d rate as at least equally likely: “Many lease and releases are long and complicated,… 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!”¹¹

Tax dodges and greedy lawyers.

Works for me…

Cite/link to this post: Judy G. Russell, “Releasing the land,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 13 Jan 2023).

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