Definition
A release by way of passing is a historical common law conveyancing device by which a person holding a right or estate in land transfers that interest to another party already in possession of or holding some interest in the same property, thereby enlarging or perfecting the recipient's title rather than simply extinguishing a competing claim. The release operates not merely to surrender a right but to pass the full legal estate or a better quality of right to the releasee, who walks away with a stronger or more complete title than before.
Two distinct forms existed under the traditional framework:
1. Release of an estate (mitter l'estate): The releaser conveys her actual estate to the releasee. The classic example is one of two co-parceners releasing all her right to the other, which operates to pass the fee simple of the whole to the remaining co-parcener, merging both shares into a single unencumbered title.
2. Release of a right (mitter le droit): The releaser holds not possession but a right — typically a right of entry or right of action — and releases that right to the person presently in possession. The example given by Blackstone is a disseisee releasing to his disseisor: the disseisor, who held a defeasible possession, acquires through the release a new and improved right that changes the quality of his estate, rendering it less vulnerable to challenge.
In both forms the mechanism is the same: the release does not simply end a dispute or waive a claim into the void, but actively passes something of legal substance to the recipient, upgrading or completing their title.
Common Confusion
A release by way of passing must be distinguished from a release by way of extinguishment, which operates where two titles or rights merge by operation of law — as when a tenant releases to his landlord — and the subordinate interest is simply absorbed and disappears. In a release by way of passing, the interest travels to the releasee and adds to what they already hold. In a release by way of extinguishment, it simply ceases to exist as a separate legal unit. Conflating the two produces errors in reading historical title chains: in one case the releasee's estate is enlarged by an identifiable transfer; in the other, a burden or competing interest is discharged without any new interest arising.
Why It Matters in Research
This term belongs almost entirely to the pre-modern common law of real property conveyancing and will appear primarily in sources from the English common law tradition through the eighteenth and early nineteenth centuries. Researchers working with colonial American titles, English land records, or treatises drawing on Blackstone and Coke will encounter it in title abstracts, deed recitals, and conveyancing manuals.
Two research traps are worth flagging. First, the Latin tags — mitter l'estate and mitter le droit — appear inconsistently in older sources, sometimes reversed, sometimes used interchangeably with other release terminology, and sometimes appearing in corrupt or abbreviated form as the Burrill source itself illustrates (the entry text breaks off mid-sentence, obscuring the full doctrine on releases of a right). Researchers relying on secondary digests should verify against Blackstone's Commentaries Book 2, Chapter 20, which is the primary common law anchor for both forms.
Second, the practical significance of this device largely collapsed with the introduction of the Statute of Uses and subsequent statutory reforms to conveyancing. By the time American jurisdictions were codifying their property law, the release by way of passing had been superseded by simpler deed forms. Its importance in modern research is therefore almost entirely historical and interpretive — tracing how a title was constituted in an earlier era — rather than operative in current transactions.
Researchers building a chain of title that includes a release instrument should determine which type of release was intended: if by way of passing, the releasee's estate was positively augmented and the source of title shifts; if by extinguishment, a burden was removed but no new interest was created. That distinction can affect whether a later conveyance was competent to pass good title.
Historical Dictionary Support
Burrill's Law Dictionary is the sole source available for this entry and provides a concise but damaged text. Burrill correctly identifies both sub-forms and correctly cites Blackstone's Commentaries at 2 Bl. Com. 324–325, which remains the authoritative statement of the doctrine. The entry for release of a right (mitter le droit) is plainly truncated in the surviving text — breaking off at "and rend" — making it impossible to reconstruct Burrill's full treatment of that form from this source alone.
What Burrill captures well is the functional distinction between passing an estate and passing a right. The former involves an actual proprietary interest held by the releaser; the latter involves only a right of entry or legal claim. Blackstone's treatment, which Burrill condenses, is more explicit that the mitter le droit form had limited utility in some contexts and was not always available depending on the nature of the right held and the relationship of the parties.
No other historical law dictionaries in the current Law Mind corpus address this term directly. Researchers needing the full doctrinal picture should proceed to Blackstone and, for earlier treatment, Coke upon Littleton.
Jurisdictional Note
This doctrine is rooted in English common law and is of primary relevance to jurisdictions that received the common law of real property — England, and most American states through the colonial and early republican periods. Modern American property statutes have largely displaced these conveyancing forms, but the terminology may appear in historical deed instruments and title opinions in any common law jurisdiction.