good: (r) If a man be disseised, and make a deed of feoffment Feoffment and letter of attorney to take possesand a letter of attorney to enter and take possession, and sion and after make livery, the feoffor being after to make livery secundum formam carta, this is a good out of possession, is feoffment, albeit he was out of possession at the 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. (r) Hill. 37 Eliz. Rot. very; 3 Co. 35. inter Jennings & Bragge. But if a man be disseised, and make a writing of a lease secus as to a lease for for years, and deliver the deed, and after deliver it upon the years, the lessor being out of possession at the ground, the second delivery is void, for the first delivery time of the first delimade it a deed, and for that the lease for years must take effect by the delivery of the deed, therefore 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 lessor had delivered it as an unless it was delivered escrow, to be delivered as his deed upon the ground, this had been good. Note a great diversity, when a man hath two ways to pass lands, and both of the ways be by the common law, and he intendeth to pass them by one of the ways, yet ut res magis valeat it shall pass by the other. But where a man may pass lands either by the common law, or by raising of an use, and settling it by the statute, there in many cases it is other wise (49). For example, if a man be seised of two acres in the country, leaving servants on the land; the feoffor enters and makes livery; it was ruled good. But it was ruled, that if lessee be absent, livery by lessor by consent of servants is void, they being upon the land. T. 7 Jac. C. B. n. 45. D. D. Blackleach and Small. But if A. be lessee of White Acre by one demise and of Black Acre by another demise of the same lessor; or if there be lessee of White Acre and Black Acre by one demise, and he makes lease for years of Black Acre, and lessor enters on Black Acre and makes livery, though A. be on White Acre, it is good. 2 Rep. Bettisworth's case." Hal. MSS.[Hargr. n. 8. 48 b. (318).] (48) "H. 22 Car. B. R. Hinde's ter of feoffment of lands in the (49) Where land shall pass by (2 Co. 31 b.) (3 Ca. 35 b.) as an escrow. 49 a. Diversity between the cases where a man has two ways to pass lands by the common law; and where he has two ways, the one at common law and the other by the statute of uses. 7 E. 4. 20 a. per touts les Just. 11 H. 4.71 Pl. Com. 152. (Mo. 99.) 2 Co. 35, 36. Sir R. Heyward's case. fee, and letteth one of them for years, and intending to pass them both by feoffment, 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 letter of attorney to make livery, and no livery is made, 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 to a tenant at will shall enure as a or marriage is mentioned in the deed an estate shall not arise by way of use. Nota videtur, that there was a letter of attorney in the deed. P. 1657. Jackson's case. A. by indenture for love and affection grants to B. a rent in esse, habendum to B. for life, remainder to the nse of C. in tail, remainder to the use of A.'s right heirs, and attornment was made, but not till after the death of A.; and it being found that B. was cousin, it was ruled, that an estate should arise by way of use without attornment.-Where one may elect one way or the other by statute. Vid. 7 Rep. Bedell's case. If father in consideration of money bargains and sells to his son, there ought to be an inrolment. But if A. for natural love to his son, and also for money grants to the son, the land shall pass without inrolment, because the consideration of love is expressed. M. 1649. Wats and Dicks, B. R." Hal. MSS.See further as to electing in what way an estate shall pass, Yelv. 124. the case of Crossing and Scudamore, 1 Ventr. 137. and 1 Mod. 175. and Barker and Keat, in 2 Mod. 249. See also Vin. Abr. Uses, B. a. and the observation in Hawk. Abr. of Co. Litt. 83.-[Hargr. n. 1. 49 a. (319).] (Z) In the former case, the acre, which, not being in the feofior's pos session, could not pass by the feotiment, 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 feoftment, 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 if cesty que use and his feoffees had joined in a feoffment after the statute of 1 R. 3., &c. it had been the feoffment of 1R. 5. ca. 1. 21 H. 7. the feoffees, and the confirmation of cesty que use, for the state at the common law shall be preferred. pass by feofment and livery. So to conclude this point; of freehold and inheritances, 2. What things may 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 livery (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. re corporali de personâ in personam de 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, idco traditionem non patiuntur. Et est traditio de manu, &c. gratuita (s) A man may have an inheritance in an upper chamber, 48 b. though the lower buildings and soil be in another, and, ()9 E. 4. 28. 40. seeing it is an inheritance corporeal, it shall pass by livery. 5 H. 7. 9. 3 Н. 6. This ancient manner of conveyance by feoffment and livery 49 a. of seisin, doth for many respects exceed all other convey-mode of conveyance. 3. Advantages of this ances. For, as hath been said (51), if the feoffor be out of possession, neither fine, recovery, indenture of bargain and sale inrolled, nor other conveyance, doth avoid an estate by (30) Sce 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. 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.] (A 1) The necessity of attornment, to give effect to a grant of a rever, sion, &c. is taken away by stat. & 5 Ann. c. 16. See the next chapter. [Ed.] VOL. II. A A 2 Co. 55. Buckler's case. 31 H. 6. 16. 8 H.7.4. M. 31 E. 1. coram wrong, and reduce clearly the estate of the feoffee, and make a perfect tenant of the freehold, but only livery of seisin upon the land (B 1): the other conveyances being made off from the ground, do sometimes more hurt than good, when 1 H. 7. 28. 8 H. 7. 4. the feoffor is out of possession (52). And yet in some cases a freehold shall pass by the common law without livery of seisin; as if a house or land belong to an office, by the grant of the office by deed, the house or land passeth as belonging thereunto. So, if a house or chamber belong to a corody, by the grant of a corody, the house or chamber passeth. A freehold may by custom be surrendered without livery, as Rege. Ranulph Hunt- 3 E. 3. Coron. 310. (52) "For this see 2 Rep. 56. Buckler's case. Fine by disseisce extinguishes his right, and shall enure to the disseisor. But see this denied M. 13 Car. B. R. Crook, n. 7. Fitzherbert's case." Hal. MSS.See Cro. Cha. 483. and S. C. W. Jo. 397. In this last book it is said, that the judges did not deliver any opinion on the point. See further W. Jo. 317. Cro. Cha. S05. and Gouldsb. 162.-[Hargr. n. 4. 49 a. (320).] [That the right of entry of a disseisee is extinguished by his fine to a stranger, whereof the disseisor shall take advantage, see acc. 1 Prest. Conv. 209.]-[Ed.] (53) "Rot. 74." Hal. MSS.[Hargr. n. 5. 49 a.] (B 1) 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 ever of taking advantage of the condition. It also destroys contingent uses, and gives away inclusively a future use, seignory, or right of action; for both the feoffment and livery of scisin are much favoured in law, and are construed most strongly against the feoffor, and in advan tage of the feoffee. Shep. Touch. 204. But the most singular and powerful effect of a feoffment is, that it operates on the possession, without any regard to the estate or interest of the feoffor; so that to make a feoffment good and valid, nothing is wanting but possession, 1 Burr. 60. 2 Prest. Conv. 237; and where the feoffor had possession, though it be ever so bare and naked, yet a freehold or fee-simple passes by it, by reason of the livery. 1 Burr. 92. Post, 330 b. 366 b. 377 a. The principle upon which this doctrine is founded will be considered in a subsequent chapter. See post, Chap. 47. of Disscisin, and the notes there; and see the case of Taylor v. Horde, 1 Barr. 60. As a feoffment operates by transmutation of pos session, it will vest the inheritance in the feoffee and his heirs, if so limited, although no consideration be paid, see Anders. 37, pl. 95; but without a consideration it would be void against creditors. 1 Bart. Prec. Con vey. 40. n. (4). A feoffment by a tenant in tail in possession, creates a discontinuance of the estate-tail, by transferring to the feoffee not only the possession, but also the right of possession, so as to take away the right of entry of the issue in tail, and of the remainder-man or reversioner, and drive them to a real action. Post, 327 b. And if made by a particular tenant, it creates a forfeiture of his estate. Ant. 251 a. p. 206. Lastly, a feoffment may be used not only for conveying an estate of freehold in corporeal property, but also for the various purposes of barring intails, destroying contingent remainders, powers, conditions, &c. 4 Bart. Elem. par. 1. c. 3. But this mode of conveyance, which was attended with many inconveniences countervailing its advantages, is now but little in practice; it having been almost entirely superseded by the conveyance by lease and release. See 2 Prest. Conv. 218. With respect to what persons may convey by feoffment, see ante, 42 b. p. 819. 200 b. vol. 1. p. 788, 789.—[Ed.] hereafter shall be said (54): and so of assignment of dower ad ostium ecclesia, or otherwise, and by exchange a freehold may pass without livery, as hereafter shall be said. he may feoffor not being bound to 6 a. in Seig. Buckhurst's case. 44 E. 3. 11 b. 59 E. 3. 17 a. 19 H. 6. 65 b. 34 H. 6. 1a. 10 E. 4. 9 b. 18 E. 4. H.7. 33 a. (2 Rol. secus as to deeds relat. (s) A man seised of land in fee has divers charters, deeds, On feoffment in fee and evidences, and maketh a feoffment in fee, either without without warranty, the warranty, or with warranty only against him and his heirs, purchaser is entitled to the purchaser shall have all the charters, deeds, and evi- (1) 1 Co. fol. 1 & 2. dences, as incident to the lands, et ratione terræ, to the end the better defend the land himself, having no warranty to recover in value; for the evidences are, as it were, the sinews of the land, and the warranty hath no use of them. to warranty, so that he is bound to render in value, then is the defence of the title at his peril; and therefore the feoffee in that case shall have no deeds that comprehend warranty, whereof the feoffor may take advantage (c 1). Also, he shall have such charter, as may serve him to deraign the warranty paramount. Also, he shall have all deeds and evidences, which are material for the maintenance of the title of the land; but other evidences which concern the possession, and not the title of the land, the feoffee shall have them (55). (54) "Vid. 5 Rep. Peryman's case." Hal. MSS.-5 Co. 84. In Peryman's case the jury found, that in the manor of Portchester there was a custom, according to which all alienations of lands within that manor by writing, feoffment, or last will were void, unless presented to be a good custom. In the same case mention is made, that by the custom of Lidford Castle, in Devonshire, a freeholder of inheritance cannot pass his freehold except by surrender into the lord's hands. As to this latter kind of custom, in consequence of which the estates subject to it have been called customary freeholds, see post, 59 b. and Blackst. Law Tracts, 8vo. edit. vol. 1. p. 144. —[Hargr. n. 6. 49 a. (321).] [Et vid. ante, vol. 1. p. 658. n. (E).]-[Ed.] (55) See Cro. Eliz. $47. Cro. Cha. 442. Noy. 145. In all of these books it is said, that in the case of conveyances to uses the possession of deeds appertains to the feoffee or covenantee, and not to cestui que ase; and the reason given is, that it was so at common law; and the statute of uses, though it transfers the legal estate to ccstui que use, doth not transfer the deeds. But this doctrine seems questionable.—[Hargr. n. 4. 6 a. (25).] [See Hooper v. Ramsbottom, 6 Taunt. 14. in which case the court observed, that the person who is entitled to land, has a right to the title deeds of that land.]-[Ed.] ing to the title, if the feoffor be bound to war ranty. (C1) Acc. Hooper v. Ramsbottom, 6 Taunt. 14. And therefore where a vendor warrants his title, which in deeds of feoffment he usually does, it is proper to insert an express grant of the title deeds. 1 Bart. Prec. Conv. 43. n. 11. Idem, 45. n. 16. For the learning respecting deeds and the right to them, see Buckhurst's case, 1 Co. 1. Field v. Yea, 2 T. R. 708. 2 Prest. Conv. 466. and the above case of Hooper v. Ramsbottom, in which it was determined, that if the vendor of a leasehold estate delivers the conveyance as an escrow, to take effect on payment of the residue of the purchase-money, the property in the title deeds of the estate is so vested in the vendee, that the vendor obtaining possession of them, and pawning them, confers on the pawnee no right to detain them after tender of the residue of the purchase-money.-[ Ed.] |