(344)* 2 & 3 Ph. & Mar. (m) Pasch. 31 El. Rot. 514. in Com. *A man make a lease for life, and after make a charter of feoffment, with a letter of attorney to deliver seisin, the attorney enters upon the lessee, this is sufficient to convey away the reversion; for that (28) (it may be said once for all) livery of seisin being to perfect the common assurance of lands, is always expounded favourably, ut res magis valeat quam pereat. All this was adjudged and (m) resolved by the court of common pleas, and after affirmed by all the judges of the king's Banc. inter Carter, pl. & in briefe de error. Hil. 32 El. Rot. 791. The attorney cannot Now the authority of an attorney, implied in the law, make livery within the. view. is, though the warrant be general, to deliver seisin; yet Pasch. 3 El. in Com. the attorney cannot deliver seisin within the view, for Banc. in Yarham's case. Cannot make livery after the death of the feoffor or feoffee. 22 H. 6. 6. his warrant is intendable in law of an actual and express livery, and not of a livery in law, and so hath it been resolved (29) (o). See more hereof here next following. "Yet if livery of seisin be not executed in the life of him which made the deed." Here, albeit the warrant of attorney be indefinite, without limitation of any time, yet the law prescribeth a time, as Littleton here saith, in the life of him that made the deed; but the death not is void, because it is neither con- and Whales. But if warrant be by sheriff to three bailiffs conjunctim & divisim, execution by two is good, because it is the execution of justice. M. 44, 45 Eliz. King and Hobbs." Hal. MSS. - See ante, 52, note 19. to which part this note more properly belongs. See also infra, note 30.-[Hargr. n. 2. 52 b. (338).] (28) "So such attorney may deliver seisin with assent of lessee for years, he being on the land Adjudged P. 1651. B. R. Wegg and Villers." Hal. MSS. See post, 48 b.-[Hargr. n. 3. 52 b. (339).] (29) "Dy. 233. Sir Walter Deny's case." Hal. MSS.--[Hargr. n. 5.52 b.] (O) And an attorney cannot make a letter of attorney to another to give livery. 18 E. 4. 12 b. 19 H. 8. 10. 2 Rol. Abr. 9. Sheph. Touch. 218 m-[Ed.) (345)* only of the feoffor, of whom Littleton speaketh, but of the feoffee also, is a countermand in law of the letter of attorney, and the deed itself is become of none effect, because in this case nothing doth pass before livery of seisin (r). For if the feoffor dieth, the land descends to his *heir, and if the feoffee dieth, livery cannot be made to his heir, because then he should take by purchase, where heirs were named by way of limitation (30). And herewith agreeth Bracton, Item oportet quòd dona-Bract. lib. 2. fol. 16. tionem sequatur rei traditio, etiam in vita donatoris 40 Ass. pl. 38. et donatorii. Therefore a letter of attorney to deli-2. 18 E. 3. 16 b. ver livery of seisin after the decease of the feoffor is 11 H. 7. 13, &c. void (31). Fourthly, in all cases the attorney must pursue the warrant in substance and effect that he hath to deliver seisin. (30) "If A. and B. joint-tenants in fee make charter of feoffment to G. and D. with letter of attorney to deliver seisin, and B. or C. dies, it is good as to the survivor. M. 32, 33 Eliz. W. 68."-[Hargr. n. 6. 52 b. (340.) (31) "Vid. letter of attorney to deliver seisin after the feoffor's death in 40 Ass. 38. Nota, by de- (P) If either of the parties die before the livery of seisin be made, the feoffment is void, and no warrant of attorney to make livery can be executed after the death of the feoffor or feoffee, neither is there any remedy in this case to get the assurance made perfect but in a court of equity; which has in some cases supplied the want of livery. Burgh v. Francis, Finch. 28. A court of equity will presume livery of seisin to have been made, though not indorsed on the deed, where the possession has gone according to the feoffment for a great length of time. Jackson v. Jackson, Fitzg. 146. Sel. Ca. Ch. 81. Bakenham v. Bakenham, 1 Ch. Ca. 240. And it seems, that, at law, livery of seisin would be presumed after the expiration of twenty years, as possession for that length of time would bar a possessory action. See Rees, d. Chamberlain v. Lloyd, Wightwick, 123. 2 Prest. Conv. 305.309. Where a conveyance, which is defective for want of livery, is aided in equity, it will be discharged of mesne incumbrances by the party; as if a mortgage wants livery, and thereupon the heir confesses judgment to another, the mortgagee shall be released from the judgments. Burgh v. Burgh, supra. But where there are many feoffees, there the death of one or some of them will not hinder the livery, but it may be made to the survivors. Infra, n. 30. As to the assistance afforded by a court of equity in aid of a defective conveyance, see Com. Dig. Chancery, (2 T.) Copyhold, (P2.) Eq. Ca, Abr. Deeds, (D). Vin. Abr. Faits, (T. a.)-[Ed.] 29 Н. 6.7 8. 14 F. 4. Diversity herein in the oras to a license to alien. (346)* 4 Co. 119 b. Cro. Mich. 3 Ja. in Com. Fifthly, all this is to be understood of sole persons, or of a corporation or body consisting of one sole person, or a bishop, parson, &c. But it holdeth not in a corporation aggregate of many persons capable (32). And therefore if a mayor and commonalty make a charter of feoffment, and a letter of attorney to deliver seisin, the livery of seisin is good after the decease of the mayor, because the corporation never dieth (33). The like of a dean and chapter, et sic de similibus. Lastly, if the lessor by his deed license the lessee for life *or years (which is restrained by condition not to alien without license) to alien, and the lessor dieth beJac. 103. 6 Co. 38.) fore the lessee doth alien, yet is his death no countermand of the license, but that he may alien, for the license exempteth the lessee out of the penalty of the condition, and it was executed on the part of the lessor as much as might be. And so was it resolved, Mich. 3 Jacob in Communi Banco. As if the king doth license to alien in mortmain, and dieth, the license may be executed after (34)(Q). 2 E. 3. Offi. de Court. 29. Stamf. Prær. 30, (1 Rol. Abr. 331, 332.) Letter of attorney may be contained in a deed polls And it is to be known, that a deed of feoffment beginning Omnibus Christi fidelibus, &c. or Sciant præsentes et futuri, &c. or the like, a letter of attorney may be contained in such a deed; for one continent may contain divers deeds to several persons; but if it be by inden (32) "11 Η. 7.27. 12 H. 8. 12. 5 Н. 7. 25. 21 H. 7. 1." Hal. MSS. -[Hargr. n. 8. 52 h.] (33) But it seems, that livery cannot be made till the new mayor is made," Hal. MSS. - [Hargr. n. 9. 52 b. (342).] (34) "Vid. Plowd. Com. 457. contra in license to the tenant to alien, ut videtur." Hal. MSS.(Hargr. n. 10. 52 b.] (Q) That, under a covenant not to alien without leave, if leave is once granted, the covenant is entirely discharged; whether the license to assign be general (Dumper's case, 4 Co. 119), or particular, as to one particular person subject to the performance of the covenants in the original lease, See Brummell v. Macpherson, 14 Ves. 173. Ante, p. 29, 30. n. (T). [E4.] ture between the feoffor on the one part, and the feoffee on the other part (*), there a letter of attorney in such or in an indenture, the a deed is not good, unless the attorney be made a party in the deed indented (35). attorney being made a party. (*) Communis error fecit jus (ut dicitur) in contrarium. (2 Inst. 673. 2 Rol. Abr. 8. Cro. Eliz. 905.) 38 Ε. 3.11, 38 Ass. p. 2. 43 Ass. p. 20. Temps H 8. tit. Fe offments. Br. 70. A livery in law is, when the feoffor saith to the feoffee, 48 b. being in the view of the house or land, (I give you yon- Livery in law defined. der land to you and your heirs, and go enter into the same, and take possession thereof accordingly (R)), and the feoffee doth accordingly in the life of the feoffor enter, 18 E. 3. 16 b 28 Н.Е. this is a good feoffment, for signatio pro traditione ha-F 18.9 E. 4. 39. per betur(36). And herewith agreeth Bracton: Item dici poterit et assignari, quando res vendita vel donata sit fol. 225 a. (1 Co. 156. in conspectu, quam venditor et donator dicit se tradere : and in another place he saith, in seisina per effectum et per aspectum. But if either feoffor or the f offee die before entry the livery is void (37). (35) "Adjudged contra between Dicker and Noland." Hal. MSS. See also another case contra in Cro. Eliz. 905. The case cited by Lord Hale is in 2 Rol. Abr. 8. pl. 12[Hargr. n. 4. 52 b.] [See also Sheph. Touch. 217. where it is said that the authority may be either in the deed of feoffment itself, whether it be poll or indented, and although the attorney be not a party to it, or else by a separate deed. Et vid. 2 Rol. Abr. 8,9. 2 Prest. Conv. 418. The appointment is most usually made by the deed of feoffment but the distinction mentioned by Lord Coke is not attended to in practice.]-[Ed.) (36) "Nota the case of 38 Ass. 2. A. makes feoffment to B. within the view, and afterwards marries her, and afterwards claims to the use of the wife; it is a good execution of the livery. 38 E. 3. 11. Vid. 42 E. 3. Feoffments 54. Livery good, though the land is not Moyle. Bract. lib. 2. Is revocable by the And livery death of the feoffor ot feoffee before entry. within view." Hal. MSS.- [Hargr. [So, where there were two joint (37) "1 Rep. Rector of Cheddington's case." Hal. MSS.(Hargr. n. 5. 48 b.] (R) Livery within view, or livery in law, seems to have been made at first only at the court barons, which were anciently held sub dio in some open part of the maner, from whence a general view might be taken of Livery within the view within the view is good where there is no deed of feoff is good, though the land he in another county. ment. (n) And such a livery is good, albeit the land lie in another county. (n) 9 Ε. 4.39.38 Ε. 8. 11. *Where the feoffee dares not enter, a claim is sufficient. (0) 38 Ass. p. 23. LITTLETΟΝ. (0) A man maketh a charter of feoffment and delivers seisin within the view, the feoffee dares not enter for fear of death, but claims the same, this shall vest the freehold and inheritance in him, albeit by the livery no estate passed to him, neither in deed nor in law, so as such a claim shall serve, as well to vest a new estate and right in the feoffees, as in the common case to revest an ancient estate and right in the disseisce, &c. as shall be said hereafter more at large in the Chapter of Continual Claim. And so note a livery in law shall be perfected and executed by an entry in law. IF a man letteth lands or tenements by deed of [Sect. 60. 49. a.] without deed (s) (38), (for seeing that the remainders Livery of seisin necessary to pass a freehold take effect by livery, there needs no deed (39), for term interest in remainder. of years, the remainder over to another for life, or in [COKE, 49 a.] tail, or in fee; in this case it behoveth, that the lessor 22 Η 6. 1. 10 E. 4. 1. 18 E, 4. 13. maketh livery of seisin to the lessee for years, otherwise nothing passeth to them in the remainder, although that the lessee enter into the tenements. And if the termor in this case entereth before any livery of *seisin made to him, then is the freehold, and also the reversion, in the lessor. But if he maketh livery of seisin to the lessee, then is the freehold together tail, or in fee, tivery with the fee to them in the remainder, according to the form of the grant and the will of the lessor(r). (348)* On lease for years, remainder for life, in must be made to lessee. (38) Un pur, L. and M. (39) "12 Η. 4. 20." Hal. MSS. [Hargr. n. 8. 49 a.] the whole manor; and the pares curiæ could easily distinguish that part of the land which was to be transferred. But this sort of livery is not perfect to pass the freehold, till an actual entry is made by the feoffee; because the possession is not delivered to him, but only a license or power is given to him by the feoffor to take possession. Infra, 48 b. Pollexf. 47. Ventr. 186.-[Ed.] (S) See n. (E) supra, p. 337.-[Ed.] (T) But, though, as appears from this case, an estate may be created |