38 HIGH COURT OF CHANCERY.

heritance during the coverture of which any issue which she
might have had, might by possibility have been heir. 4 Kent
Corn,., 35.

It seems to me impossible to say, that any issue which either
of the complainants might have had, by their respective hus-
bands, could have taken this property as heirs, and if not, one
of the prerequisites of the dower claim is wanting.

The complainants however insist, that the covenant in the
deeds, binding Stewart the grantor, when required by the grant-
ees, their heirs and assigns, to convey the demised premises
in fee, at their expense, make these deeds effectual to pass the
fee; that the lease of the term for years, operating as a bargain
and sale, and the use and possession being in the bargainee, the
covenant operates as a release, by way of enlargement of the
estate, and thus transfers the entire interest of the bargainer.

But this mode of conveyance by lease and release, it is
thought, cannot be made effectual in this way, the lesser estate
must be created first by a bargain and sale, to which the stat-
ute of uses awards the possession, and the lessee being thus in
the enjoyment of the use by the bargain, and of the possession by
the statute, is competent to receive a release of the reversion.
But if he is not thus in the possession and enjoyment of the
lesser estate, how can the release operate by way of enlarge-
ment. There would, in truth, be nothing to enlarge. 4 -Kent,
494; 2 Thomas' Coke, 581, note.

The covenant in these deeds could not, in my opinion, in any
view of the subject, be regarded as releases at common law.
They certainly were never intended so to operate, but were
merely designed to bind the grantor, at some future time, when
requested by, and at the expense of the grantees, to convey them
the estate in fee. But unquestionably the parties never sup-
posed, or designed by this covenant, to adopt an artificial mode
of conveyance, which, if effectual, at once transferred the entire
estate from the grantor to the grantee.

But the complainants' solicitors contend, that in a court
of equity, which considers that as having been actually done,
which is agreed to be done, these deeds, by force of the cove-