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 "Maketh livery of seisin to the lessee." This livery is not necessary in this case for the lessee himself, because he hath but a term for years, but it is for the benefit of them in the remainder, so as the livery to the lessee shall enure for the benefit of them in the remainder : for the "livery of the possession could not be made to the next in remainder, because the possession belonged to the lessee for years; and for that the particular term and all the remainders made in law but one estate, and take effect at one time, therefore the livery is to be made to the lessee. 49 a. *49 b. (Ante, 143 a.) Livery to one of two But if a lease for years without deed (u) be made to A. and B., the remainder to C. in fee, and livery is made to A. in the absence of B. in the name of both; it seemeth the livery is good to vest the remainder: and there is a diversity between two joint attornies to re-secus as to livery to ceive livery for another, and livery and seisin is made to one of two joint attorone of them in the name of both, this is clearly void, because they had but a mere and bare authority (40), and they both do in law make but one attorney, unless the warrant be jointly and severally (41), but the lessee for years hath an interest in the land (w). (40) See further as to the difference between a naked authority and an authority coupled with an interest, ant. 52 b. p. 343. 113 a. vol. 1. p. 398, 399. and 181 b. vol. nies. by feoffment to commence in futuro, by way of remainder, it has long been an established principle, that a feoffment cannot be made to commence in futuro; and therefore if a person m kes a feoffment to commence on a future day, and delivers seisin immediately, the livery will be void, and nothing more than an estate at will passes to the feoffee. Ante, 217 a. p. 12-14. This doctrine is founded on two reasons, 1st. Because the object and design of the ceremony of livery of seisin would fail, if it were allowed to pass an estate to commence in futuro: as it would in that case be no evidence of the change of possession. 2d. The freehold would be in abeyance, which is never allowed where it can, by any means, be avoided. 5 Co. 946. Cro. Eliz. 454. 2 Vent. 204. 2 Wils. 166. - [Ed.] (U) See supra, p. 337. n. (E).-[Ed.] (W) And the law intends that there is such a mutual trust between those that take a joint estate, that the act of either of them is effectual for himself and the other, especially where it is not prejudicial to him. Hawk, Abr. 84.-[Ed.] (349)* Livery to one of two *Again, if A. is to make a feoffment to B. and C., and their heirs, without deed, and A. makes livery to B. in feoffees, is void as to the absentee, unless by the absence of C. in the name of both, and to their heirs; this livery is void to C., because a man being absent deed. 10 Ε. 4. 1. 12 Ε. 4. 16. 15 Ε. 4. 18. 22 Ε.4. 35. cannot take a freehold by a livery, but by his attorney 40 Ε. 3. 10.41 (42) being lawfully authorized to receive livery by deed (x), ments 72. 6 H. 4. 2b. unless the feoffment be made by deed, and then the livery Temps H. 8. Feoff Litt. 153. 3. Η. 7. 13. (Post, 359 a.) (Ante, to one in the name of both is good (43). 36 a. 9 Co. 137.) Livery within view to to pass a remainder. A man makes a lease for years to A., the remainder to lessee for years, is void B. in fee, and makes livery to A. within the view; this livery is void, for no man can take by force of a livery within the view, but he that taketh the freehold himself. Livery must be made before the lessee enters; (Mo. 14.) unless he enters for the purpose of receiving Livery (p) Braeton, lib 1. "And if the termor in this case entereth before any livery made, &c." By the entry of the lessee he is in actual possession, and then the livery cannot be made to him that is in possession, for quod semel meum est, amplius meum esse non potest. But if the lessor and lessee come upon the ground, of purpose for the lessor to make, and for the lessee to take livery, there his entry vests no actual possession in him until livery be made; for (p) affectio tua nomen imponit operi tuo (44). And therefore if it be agreed between the disseisor and disseisee, that the disseisee shall release all his right to the disseisor upon the land, and accordingly the disseisee entereth into the land, and delivereth the release to the disseisor upon the land, this is a good release; and the entry of the disseisee, being for this purpose, did not avoid the disseisin, for his intent in this case did guide (42) "18 Ε. 4. 12," Hal. MSS. -[Hargr. n. 3. 49 b.] (43) "Dy. 14. 35. 18 H. 6.9. 22 H. 6. 1." Hall. MSS.-[Hargr. n. 4. 49 b.] (44) "Nota, if the lease for years with the remainder over be by deed, the deed ought not to be delivered till livery made; for otherwise the livery is bad. H. 2 Eliz. Helyar's case. Vide Bendl. n. 130." Hal. MSS-See N. Ben. 85. and S. C. Mo. 14. 1 And. 8.-[Hargr. n. 5. 49 b. (322).] (X) Except where a man takes a freehold by way of remainder, by livery made to another, in his absence, as in the above case of a lease for years with remainder in fee. Supra, 49 a.-[Ed. |