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.

ment, maketh a charter of feoffment, and maketh livery in the acre in possession, in name of both, only the acre in possession passeth by the livery; yet if the lessee attorn, the reversion of that acre shall pass by the deed and attornment, for he is in by the common law, and in the per in both, and so in the like But otherwise it is, if the father make a charter of feoffment to his son, and a

2 Co. 35, 36. Sir R Heyward's case. (1 Sid. 25, 26 82. 2 Co. 94. 3 Leo 371) letter of attorney to make livery, and no livery is made,

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yet no use shall rise to the son, because he should be in by the statute in another degree, viz. in the post, and the intention of the parties work much both in the raising and direction of uses (z). So * if cesty que use and his 1 R. 3. ca. 1. 21 H 7. feoffees had joined in a feoffiment after the statute of 1 R. 3., &c. it had been the feoffment of the feoffees, and the confirmation of cesty que use, for the statute at the common law shall be preferred.

2. What things may pass by feoffment and livery.

So to conclude this point; of freehold and inheritances, some be corporeal, as houses, &c. lands, &c. these are to pass by livery of seisin, by deed or without deed; some be incorporeal, as advowsons, rents, commons, estovers, &c. these cannot pass without deed, but without any li

(Z) In the former case, the acre, which, not being in the feofsor's possession, could not pass by the feofment, yet passed by way of grant of a reversion and attornment, because that mode of conveyance is by common law as well as the other. But where a person intends to pass land by conveyance at common law, and it cannot pass that way, the law will not raise an estate by way of use by force of the statute: thus, in the case now under consideration, the law will not raise an use to the son, by construing the charter as a covenant to stand seised to the use of the son in consideration of natural affection; for the father expressly designed that it should enure by way of feoffment, by force of which conveyance, the law would adjudge the son to be in the land by the father, which is called in the per, whereas by the other he is rather esteemed to come after him, than by him, which is called in the post; and also, if it should enure by way of covenant to stand seised, it would pass the whole estate immediately, and consequently the livery of seisin could take no effect. But later authorities are contrary to Lord Coke, as to this point, because the principal intent of the deed is to pass an estate to the son, and it shall not be frustrated by adhering too strictly to the form of the conveyance, if by any construction it can be made effectual. 3 Lev. 9, 10 213. 371. Yet it has been resolved that a covenant to levy a fine, which shall be to such and such uses, does not amount to a covenant to stand seised, because then the party could not levy the fine, 3 Lev. 126, 306; but in this case the words of the deed do not purport the grant of an estate passing immediately, as they do in the case in the text. Hawk. Abr. 83.--[Ed.]

very (50). And the law hath provided the deed in place or stead of a livery. And so it is if a man make a lease, and by deed grant the reversion in fee, here the freehold with attornment of the lessee (A 1) by the deed doth pass, which is in lieu of the livery. See Bracton, lib. 2. cap. 18. Et est traditio de re corporali de persona in personam de manu, &c. gratuita translatio, et nihil aliud est traditio in uno sensu, nisi in possessionem inductio, de re corporali; et ideo dicitur, quòd res incorporales non patiuntur traditionem sicut ipsum jus quod rei sive corpori inhæret, et quia non possunt res incorporales possideri sed quasi, ideo traditionem non patiuntur.

48 b. (s) A man may have an inheritance in an upper cham(8) 9 E. 4. 28. 40. ber, though the lower buildings and soil be in another, 5 H. 7.9. 3 H. 6. tit. Pleint 1. 11 H. 4. and, seeing it is an inheritance corporeal, it shall pass by 32 11 E. 3. Ass. 86. livery.

49 a.

This ancient manner of conveyance by feoffment and 3. Advantages of this livery of seisin, doth for many respects exceed all other mode of conveyance. conveyances. For, as hath been said (51), if the feoffor be out of possession, neither fine, recovery, indenture of

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bargain and sale inrolled, nor other conveyance, doth avoid an estate by *wrong, and reduce clearly the estate 2 Co. 55. Buckler's of the feoffee, and make a perfect tenant of the freehold, but only livery of seisin upon the land (B1): the other

case.

(50) See ante, 9 a. p. 332, 333. post, 47 a. ante, 48 a. p. 334. 121 b.

vol. 1. p. 207. and 169 a. vol. 1. p
706.-[Hargr. n. 2. 49 a.]
(51) Ant. 9 a. p. 332, 333.

(A 1) The necessity of attornment, to give effect to a grant of a reversion, &c. is taken away by stat. 4 & 5 Ann. c. 16. See the next chapter. -[Ed.]

(B1) And it not only passes the present estate of the feoffor, but bars him of all present and future right to the estate which is so conveyed; so that if a man has several estates, all of them pass by his feoffment: and if he has any interest, rent, common, or the like, in, or out of the land, it is extinguished and gone by the feoffment. Perk. Sect. 210. 1 Co. 121. 6 Co. 70. Plowd. 423, 424. It bars the feoffor of all collateral benefits touching the land, as conditions, powers of revocation, writs of error, and the like; therefore, if a man creates an estate of his land upon condition, and afterwards makes a feoffment of the land; by this he is barred for over of taking advantage of the condition. It also destroys contingent