"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
lessees, in the name of
both, is sufficient,
(5 Co. 94 b.)

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.
1. p. 738.-[Hargr. n. 1. 49 b.]
(41) See ant. 52 b. p. 343. n. (26).

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.

Communi Banc. Pl.

his entry to a special purpose. And so was it resolved (9) P. 19 Eliz, in (g) by Sir James Dyer, and the whole court of common Com. in Ass. de freshpleas, Pasch. 18 Eliz. upon evidence which I myself force 91. 29 Ass. 26. 43 Ass. p. 3. 3 Η. 6. heard and observed. But if disseisor enfeoff the disseisee 19. in formedon. (45) and others, there albeit the disseisee* came to take livery,

yet when livery is made, the disseisee is remitted to the whole in judgment of law, as shall be said more at large in the Chapter of Remitter in his proper place.

(350)*

48 b.

senting, is void:

A man makes a lease for years, and after makes a deed Livery of seisin, the of feoffment and delivers seisin, the lessee being in pos- lessee for years being in session and not assenting to the feoffment, this livery is possession and not asvoid; for albeit the feoffor hath the freehold and inheri- (2 Rol. Abr. 4. Dy. tance in him, yet that is not sufficient (v), for a livery 33 a. Mo. 11.) must be given of the possession also (46); but if the secus if there be no lessee be absent, and hath neither wife nor servants person on the premises. (though he hath cattle) upon the ground, the livery of worth's case. seisin shall be good.

If a man be seised of an house, and of divers several closes in one county in fee, and makes a lease thereof for years, and afterwards maketh a feoffsment in fee of the same, and makes livery of seisin in the closes (the lessee or his wife or servants then being in the house) the lifor the lessee cannot be upon him demised, for the preser

very is void for the whole every parcel of the land to

to

(45) "9 Н. 7. 1. 41 Ε. 3. 17." Hall. MSS.-[Hargr. n. 6. 49 b.] (46) "P. 40 Eliz. B. R. A. tehant for years; the reversion is granted to B. for life, remainder C. in tail, remainder to D. in fee; D. by deed infeoffs A. and one E. and makes livery: it was ruled to be void, because there was not any surrender, and A. was in possession and could not take by livery. Edes

and Knotsford. A tenant for years, remainder to the king for years, remainder to B. in fee; B. enters and ousts A. and makes livery; it is good, notwithstanding the mesne remainder for years to the king; but it would have been otherwise, if the king's remainder had been for life." Hal. MSS. - [Hargr. n. 7. 48 b. (317).]

(Y) As livery of seisin is the delivery of the actual possession; no person can give livery of seisin who has not at the moment the actual possession. And therefore where a person makes a feoffiment of lands which are let on lease, he must obtain the assent of the lessee to the livery. And in cases of this kind the practice formerly was, for the lessee to give up the possession for a moment to the lessor, to enable him to give livery. Bettisworth's case, 2 Co. 31 b. 4 Cru. Dig. 103-[Ed.]

VOL. II.

3 F

2 Co. 31, 32. Bettis

vation or continuance of his possession therein. And therefore his being in the house, or upon any part of the land to him demised, is sufficient to preserve and continue his possession in the whole from being ousted or dispossessed (47).

Feoffment and letter of *(r) If a man be disseised, and make a deed of feoffattorney to take posses- ment and a letter of attorney to enter and take possession, sion and after make livery, the feoffor being and after to make livery secundum formam cartæ, this out of possession, is is a good feoffment, albeit he was out of possession at the good: (7) Hill. 37 Eliz. Rot. time of the charter made (48), for the authority given by the letter of attorney is executory, and nothing passed by

the delivery of the deed till livery of seisin was made. And in ancient letters of attorney power is given to others to take possession for the feoffor.

But if a man be disseised, and make a writing of a lease for years, and deliver the deed, and after deliver it upon the ground, the second delivery is void, for the first delivery made it a deed, and for that the lease for years must take effect by the delivery of the deed, there(2 Co. 31 b.) (3 Co. fore the deed delivered when he was out of possession

was void. But so it is not of a charter of feoffment, for

that takes effect by the livery and seisin. But if the unless it was delivered lessor had delivered it as an escrow, to be delivered as

his deed upon the ground, this had been good.

Note a great diversity, when a man hath two ways 49 a. Diversity between the to pass lands, and both of the ways be by the common cases where a man has law, and he intendeth to pass them by one of the ways, two ways to pass lands by the common law; yet ut res magis valeat it shall pass by the other. But and where he has two where a man may pass lands either by the common law, ways, the one at comor by raising of an use, and settling it by the statute, by the statute of uses. there in many cases it is otherwise (49). For example, 7 E. if a man be seised of two acres in *fee, and letteth one of Pl. Com. 152. them for years, and intending to pass them both by feoff. 10 E. 4. 3.