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.] (342)* name of both; for when he delivereth séisin of one secundum formam carta, this is tantamount and implieth a livery of both. So, when the feoffment is made to two (Post, 310 a. 359 a.) or more, and the attorney is to make livery of seisin to both, and the attorney make livery of seisin to one of the feoffees secundum formam et effectum cartæ, this is good to both (K), and yet in that case he that is absent may waive the livery (9). If lessee for life make a deed of feoffment and *a letter of attorney to the lessor to make livery, and the lessor maketh livery accordingly, notwithstanding he shall enter for the forfeiture (L). But if lessee for years make a feoffment in fee and a letter of attorney to the lessor to make livery, and he make livery accordingly, this livery shall bind the lessor, and shall not be avoided by him: for the lessor cannot make livery as attorney to the lessee, because he had no freehold whereof to make livery, but the freehold was in the lessor (20). If the lessor make a deed of feoffment and a (19) "Adjudged accordingly of livery to one feoffee. T. 1651. B. R. Trotman's case. Vid. M. 31,32 Eliz. C. B. Trevillian's case. A. seised of two acres makes lease of one acre to B. for years, and afterwards makes charter of feoffment of both acres and letter of attorney to B. and C. conjunctim et divisim to make livery: B. makes livery in one acre and C. in another, and ad judged good. Entered M. 30, 81 (20) "Yet vide if lessee for years (K) So where a deed of feoffment was made to three, habendum to two for their lives, remainder to the third for his life, and a letter of attorney was made to give livery to the two, but the attorney made livery to all three secundum formam carte; and the question was, whether the livery so made as if they had all estates in possession, whereas in truth one of them had but an estate in remainder, was good: the court were all of opinion, that the livery was good to two for their lives, remainder to the third person. And the chief justice said, that whatever the ancient opinions were about pursuing authorities with great exactness and nicety, yet this matter of livery upon indorsments of writing was always favourably expounded of later times, unless where it plainly appeared that the authority was not pursued at all. As if a letter of attorney was made to three jointly and severally, two could not execute it, because they were not the parties delegated; they did not agree with the authority. Norris v. Trists, 2 Mod. 78. S. C. 3 Salk. 277.-[Ed.] (L) For the lessee had an estate which might pass by livery, and the lessor who was not privy to the deed, might presume that it contained no greater estate than the lessee could lawfully make; and therefore he Tr. 7 Eliz. in Com. 177.) letter of attorney to the lessee for years to make livery, and he doth it accordingly, this shall not drown or extinguish his term, because he did it as a minister to another (22) and in another's right, and is accounted in judgment of law the act of the other, and the feoffee claimeth nothing by him (23). 17 Ε. 8. 61. (F. N. B. If one as procurator or attorney to another present to 35 0.) his own benefice, he puts himself out of possession, because he cometh in by the induction and institution of the ordinary. If the tenant devise that the lord shall sell the land, and dieth, and the lord selleth it, the seignory remains. But if the lord or a grantee of a rent-charge had been also cesty que use of the land, and after the statute (1 Co. 111. Post, of R. 3. and before the statute of 27 H. 8., cesty que use 265 b.) had made a feoffment in fee of the land, albeit the land passeth from the feoffees, and his feoffment is warranted by the power given to him by the statute, yet the seignory or rent-charge is extinct by his feoffment, for that he hath not a bare authority as the attorney hath (24) (м). (343)* If he does less than his * If a man be seised of Black Acre and White Acre, warrant, it is void. (21) "Smith's case." Hal. MSS. (22) "If A. brings præcipe of (23) "So it is of livery by the lord. H. 4 E. 6. Mo. n. 41. Trevillian's case, supra." Hal. MSS.See note 19.-By the case of livery by the lord, it is meant, that if tenant makes feoffment of his tenancy, and the lord as attorney makes livery, it shall not extinguish his seigwory. Mo. 11.-[Hargr, n. 7. 52 a. (336).] (24) See supra, note 23. ought not to be prejudiced in respect of his right of entry for the forfeit ure. Hawk. Abr. 88.-[Ed.] (M) The statute of 1 R. 3. c. 1, empowered cestui que use to make effectual conveyances and feoffments against his feoffees in trust; and there. fore in the case put by Lord Coke, though the land passed from the seoffees, yet the cestui que use acted not by a bare authority derived from them; but his conveyance was made good by the statute: and it is a rule, that wherever the feoffor has any interest, rent, common, &c. in, to, or out of the land, it is extinguished by the feoffment. Plowd. 423. 424. Shep. Touch. 204.-[Ed.] (Post, 252 b.) and a warrant of attorney is made to enter into both and to make livery, there if the attorney enter into Black Acre only and makes livery secundum formam carte, there the livery of seisin is void, because he doth less than his * warrant (23); for the estate of the disseisor in *52 b. White Acre cannot be devested without an entry. But Diversity herein in case of an authority thereis a diversity between an authority coupled with an coupled with an inte interest, and a bare authority (26). For example, a cus-rest. tom within a manor time out of mind of man used, was to grant certain lands parcel of the said manor in feesimple, and never any grant was made to any, and the heirs of his body, for life, or for years; and the lord of (1) Rol. Abr. 511.) the said manor did grant to one by copy for life, the remainder over to another, and the heirs of his body; and it was adjudged (1), that the grant and remainder over (1) Hil. 36 El. Rot. was good; for the lord having authority by custom, and 492. inter Stanton & Barnes, in ejectione an interest withal, might grant any lesser estate: for in firme, in the Kings this case, the custom that enableth him to the greater, Bench. (Post, 265 b. 1 Sid. 6.) enableth him to the lesser, Omne majus in se continet minus. But he that hath but a bare authority, as he that hath a warrant of attorney, must pursue his authority (as hath been said), and if he do less, it is void (27) (Ν). (25) "Vid. 11 H. 4. 3. If there be feoffment on condition and letter of attorney to make livery accordingly, and livery is made absolutely, it is void and a disseisin. So è converso 12 Ass. 24. 26 Ass. 39.-H. 38 Eliz. B. R. Poph. n. 2. Slaning's case. A. seised of the manors of B. and C. and also of a mill in possession of I. S. by force of a lease for years makes charter of feoffment, with letter of attorney to enter into the said manors, and all other the said lands and tenements and seisin thereof to take, and after such possession and seisin taken, such seisin and possession to deliver, (26) See post, 49 b. ante, 113 a. (27) "Vide these diversities. A. makes letter of attorney to B. C. and D. conjunctim & divisim to make livery. If two make livery it (N) To prevent the inconvenience which would arise from the death, illness, &c. of the attorney appointed to deliver seisin, two persons are sometimes named for this purpose, in which case they should be appointed "jointly, and each of them severally," for otherwise, as every bare authority, not clothed with an interest, must be strictly pursued, livery made by one of them alone would be void. 1 Bart. Prec. Conv. 47. ก. 17-[Ed.] |