LITTLETON. [Sect. 61.50 a.] Where the lands lie in one county, hvery in part, in the name of the whole, is sufficient : secus if they lie in several counties, 48 b. How livery shall be made of a moveable fee-simple. Bridgewater's case. (Ante, 4 b. 190 b.) (338)* name of seisin of the land, or if the feoffor saith to the feoffee, Take and enjoy this land according to the deed; or, Enter into this land, and God give you joy; these words do amount to a livery of seisin. AND if a man will make a feoffment, by deed or without deed (w), of lands or tenements which he hath in divers towns in one county, the livery of seisin made in one parcel of the tenements in one town, in the name of all the rest, is sufficient for all other the lands and tenements comprehended within the same feoffment in all other the towns in the same county (10). But if a man maketh a deed of feoffment of lands or tenements in divers counties, there it behoveth in every county to have a livery of seisin (11). Vide Sect. 1. in Bridgewater's case, where a man hath a moveable estate of inheritance, for example there put, in 13 acres: the question is, where livery shall be made. First, if they be parcel of a manor, they may pass by the name of the manor; but if they be in gross, then the charter of feoffment must be of 13 acres lying and being in the meadow of 80 *acres, generally, without bound (10) "Vid. 11 Eliz. Dy. 283. Cestui que use of three acres by three several feoffments in one county makes charter of feoffment of all and livery in one of the acres, it is pursuant to the statute and passes all." Hal. MSS.-The statute meant is the 1 R.3. c. 1. which empowers cestui que use to make effectual feoffments and conveyances against his feoffees in trust; and the case cited was of feoffment before the 21 H. 8. for transferring uses into possession. It is stated, that the livery was made by attorney, and that was the cause of the doubt; it being said, by some, that the statute of R. 3. ought to be construed strictly, and to be confined to conveyances made by the cestui que use in his own per son. See Bro. Feoffment to Uses, 28. - [Hargr. n. 1. 50 a. (323).] (11) "Vid. Dy. 246. 22 H. 6. 10. If a manor extends into two counties, livery in that part of the manor which is in one county, doth not pass that which is in the other county. So it is with respect to disseisin." Hal. MSS.-But Mr. Perkins holds, that livery of parcel of such a manor in one county will pass the parcel in the other county. Perk. sect. 227. However, he admits, that if one be disseised of two acres in different counties, entry into the acre in one of the counties, though made in the name of both acres, will not extend to the acre in the other county. Perk. sect. 229. - [Harg. n. 2. 50 a. (324).] (E) That is, at common law, before the 29 Cha. 2. c. 3.-[Ed. ing or describing of the same in certainty; and livery of the seisin of any 13 acres allotted to the feoffee for a year secundum formam cartæ is a good livery to pass the content of 13 acres wheresoever the same lie in that meadow. In the second case, where one entire manor is separate and divided, as is aforesaid, there is no question but the livery must be made of that manor; but in the other case, where two manors are separate, and divided alternis vicibus, there the charter of feoffment must be made of both, and livery in that manor which he is seised of in any one year secundum formam cartæ, and the next year in the other secundum formam cartæ : for there are two distinct manors, and several estates in them (12). Vid. sect 1. If divers parcels of land be contained in a deed, and 48 a. the feoffor delivers seisin of one parcel according to the Livery of part secundum formam carta, deed, all the parcels do pass, albeit he saith not (in name passes all contained in of all, &c.) because the deed containeth all. And so, if the deed; (Post, 50 a.) 13 Ε. 3. there be divers feoffees, and he make livery to one ac- Estop. 177. cording to the deed, the land passeth to all the feoffees or if made to one of several feoffees, passes (13); and yet the plainer way is to say (in the name of to all; the whole, or of all the feoffees) (14). 228 a. If a deed be made and dated in a foreign kingdom, of lands within England, yet if livery and seisin be made, 1 E. 3. 17. in Gracye's secundum formam carte, the land shall pass, for it passeth by the livery. case. If a man make a charter in fee, and deliver seisin for 48 a life secundum formam cartæ, the whole fee-simple shall or if made for life, the pass, for it shall be taken most strongly against the feoffor (F). Note, that these words (secundum formam cartæ) (12) "Vid. 8 E. 2. Feoffments 111. Livery by the lord of any part of the manor without going to it; but contra if not parcel." Hal. MSS.-[Hargr. n. 3. 48. b (314).] (13) "But if it be without deed deed being in fee, passes the fee. Ibidem. (2 Co. 246, Ante, 222.) 29. nothing passes to the others. Dy. 40. 10 Ass. 19 Ass (14) "15 Ε. 4. 18. 18 Ε. 4. 12. 18 H. 6.9 22 H.6 1.40 E. 3.40." Hal. MSS.----[Hargr. n. 8. 48 a.] (F) And livery is not only made for life, but also according to the form of the deed, that is, according to the quantity and quality of the estate (339)* are understood according to the quantity and quality of the effectual estate *contained in the deed. If a man Where the deed has no make a lease for years by deed, and deliver seisin ac effect, livery according (Hob. 171. Plowd. 2 Rol. Abr. 7. 1 Co. 376.) Mich. 33 & 34. cording to the form and effect of the deed; yet he hath but an estate for years, and the livery is void, as Littleton saith. So, if A. by deed give land to B., to have and to hold after the death of A. to B. and his heirs, this is a void deed, because he cannot reserve to himself a particular estate, and construction must be made upon the whole deed; and if livery be made according to the form and effect of the deed, the livery also is void (G), because the livery referreth to a deed that hath no effect in law, and therefore it cannot work secundum formam et effectum cartæ (15). And so it was adjudged, et sic de In the case of livery by similibus. (*) And it is to be observed, that neither the attorney, the attorney feoffor being absent can make livery, nor the feoffee being must be appointed by absent can take livery, but by warrant of attorney, by (*) See more of this, deed (H), and not by parol, because it concerneth matter deed. sect. 66. 11 Н. 4. 71. 19 Ass. 9. 19 H, 8. 9 b. (2 Rol. Abr. 8. Post, 359. 2 Sid. 61.) of freehold (16). (15) "Charter of feoffment habendum a die datas, Ruled, 1. If livery be made the same day secundum formam carta, it is void. 2. If it was after the day by the feoffor himself, it is good. 3. If there be letters of attorney to deliver seisin in the deed, or it was at the same time, and it is delivered after the day, yet it is not good, because the authority was given at a time when it was a void charter. But 4. If letter of attorney be made after the day, and livery is made according to the deed it is good. Hob. 314. Greenwood and Tiler. T. 3. Car. Owen and Price. C. B H.3 Jac. Rot. 216. B. R. Hennings and Paucharden. So, there is a diversity between this and a grant of a reversion habendum from a day to come, for attornment after the day doth not aid the grant. 2 Rep. 55. Buckler's case." Hal. MSS.-See Cro. Jam. 563. and 153.--[Hargr. n. 1. 48 b. (312).] 16) "Adjudged, that feoffee being absent cannot take livery, nor feoffor being absent make livery, by attorney by parol. T. 1659. Gregory and Badbourne. But a lease for years may be delivered by attorney by parol, as has been often adjudged." Hal. MSS. - [Hargr. n. 2.48 b. (313) ] contained in the deed, which necessarily includes an estate for life. Hawk. Abr. 80. But where the deed and the words used in the livery are inconsistent, nothing passes by the deed. Ante, 222 b. p. 9.- [Ed.] (G) In these two cases the livery of seisin is void, for the first deed expressly gives a chattel only, and the second gives a freehold in futuro, and consequently is void: and where the sole purport of the livery is to make the estate contained in the deed effectual, it shall rather be void, than strained to give a freehold in the first case, or a present estate in the second, against the manifest intent of the parties. Hawk. Abr. 80.[Ed.] (H) A man may either give or receive livery by his attorney: for since IF a man maketh a deed of feoffment to another, LITTLETON. and a letter of attorney to one to deliver to him seisin [Sect. 66 51.b.] by force of the same deed; yet if livery of seisin be not executed in the life of him which made the deed, this availeth nothing, for that the other had nought to have the tenements according to the purport of the said deed, before livery of seisin made; and if there be no (340)* livery of seisin, then after the decease of him who made the deed. the right of these tenements is forth with in his heir, or in some other. 51 b. "Attorney" is an ancient English word, and signifieth one that is set in the turn, stead, or place of an- (9 Co. 75. F. N. B. other: and of these some be private (whereof our author 156.) here speaketh) and some be public, as attornies at law, whose warrant from his master is, ponit loco suo talem attornatum suum, which setteth in his turn or place such a man to be his attorney. 52 a. Vid sect. 196. "And a letter of attorney to one to deliver to him seisin by force of the same deed." Here first it appeareth, that the authority to deliver seisin (as hath been said) must be by deed (17): for letter of attorney is as much as a warrant of attorney by deed, for literæ do signify sometimes a deed, as literæ acquietanciæ do signify a deed of acquittance, and herewith (h) agreeth (h) 24 E. 3.27. Britton. 11 H.7. 13. Britt. 101 b. 2. Littleton here speaks generally to one, and few per- Who may be attornies to make livery. sons are (i) disabled to be private attornies to deliver (1) 21 E. 4. 18. Br. (17) "Vid. 1 Ass. 16 26 Ass. 29. 35 Ass. 1. 12 H. 7.27. 13 H. 7. 14. Feoffments 50. 21 Η. 6.30. 13 Ε. 3. 4 H. 7. 13. 13 Ε. 4. 8." Hal. MSS. Attorney 73. - [Hargr. n. 1. 52 a.] a contract is no more than the consent of a man's mind to a thing, where that consent or concurrence appears, it were most unreasonable to oblige each person to be present at the execution of the contract, since it may as well be performed by any other person delegated for that puspose by the parties. But such delegation or authority, to give or receive livery, must be by deed, that it may appear to the court, that the attorney had a commission to represent the parties that are to give or take livery, and whether the authority was pursued. 3 Bac. Abr. 166.-[Ed.] (34)1* Must pursue his au- seisin; for monks, infants, feme coverts (18), persons attainted, outlawed, excommunicated, villains, aliens, &c. may be attornies. A feme may be an attorney to deliver seisin to her husband, and the husband to the wife, and he in the remainder to the lessee for life (1). 3. It appeareth here that the attorney must (k) pursue his warrant, otherwise he doth not deliver seisin by force of the deed, as Littleton speaketh. Now his au10 H. 7. 11 H. 7. 3. thority is twofold, expressed in his warrant, and implied 40 Ass. 38. (9 Co. in law, both which he must pursue. And first of his ex76 b.) 27 Ass. 61. 41 Ass. 10. press authority. A man seised of Black Acre and White 41 E. 3. 17. (2 Leon. Acre makes a deed of feoffinent of both, and a letter of 73.) attorney to enter into both Acres, and to deliver seisin of both of them according to the form and effect of the deed, and he entereth into Black Acre and delivers seisin secundum formam cartæ, this livery and seisin is good, albeit he did not enter into both, nor into one in the (18) In another place Lord Coke cites a passage from the Mirror, which excludes both infants and femes covert from being attornies, Post, 128 a. But that is quite reconcilable with the doctrine here; for there public attornies for prosecuting suits at law are meant, whose office cannot be properly exe cuted without considerable know ledge and discretion: but here Lord Coke in the first part of the sentence confines himself to private attornies to deliver seisin, which is an act so merely ministerial that it may be done by the most ignorant. See the case of Earle and Greenough, in 3 Atk. 695. and 1 Ves. 298. One question in that case was, whether a power of disposing of real estate could be well executed by an infant feme covert of the age of (I) But sejsin can be delivered by attorney only when the feoffor is sui juris; for, if the feoffor be an infant, feme covert, or the like, livery should be made in person; for as an attorney cannot be constituted but by deed (which these persons are incapable of making Zouch v. Parsons, 3 Burr, 1801.), any act done by them in pursuance of such vacate authority would of course be wholly void, whilst the effect of a livery made in person will be good until avoided by entry. Perk. sect. 12. 1 Bart. Prec.conv. 47. n. 17.-[Ed.] |