Co. super Lit. 258. son,] and a warrant of attorney is made to one to Perk. Sect. 109. And therefore if the letter of attorney be to give Co. super Lit. 49. Perk. Sect. 39. If a letter of attorney be made to two jointly, to make or take livery of seisin, and one of them alone doth it without the other; this is a void livery. But otherwise it is when it is made to two jointly or severally, for there one of them alone may do it (34.) If a letter of attorney be to make livery of seisin after the death of another man, and the attorney doth make livery of seisin during that man's life; this livery is void (35.) [Because it would, if effectual, pass the seisin earlier than was intended.] (34) If a letter of attorney be made to three, conjunctim et divisim, and two of them only make the livery, it is not good, because not pursuant to the authority; for the delegation was to them all three, or to each of them separately: but if the third was present at the time of the livery, though without doing or saying any thing, it is good. Dyer, 62 a. See further Mo. 278. 1 Leon. 192. (35) See more amply as to the doctrine of livery by letter of attorney, in Vin. Abr. Feoffment (Q.); Com. Dig. Feoffment (B. 3.); and note 2, to 13th edition Co. Lit. 52 a. [Вас. Abr. Feoffment (E.)] 11. How it shall enure, and be taken & construed. *P. 219. Co. super Lit. 17 Ed. 4. 25. Fitz. Feoffments Livery of seisin is sometimes made single, and Lit. Sect. 359. without any relation to the deed, whereby the estate, 48. 12 upon which the livery is made, is created at all; Fitz. Estoppel, and sometimes, and most commonly, it is made 177 with reference to the deed, in these or such like Co. super Lit.49. words, " secundum formam chartæ;" [and now and Faits, 23. there must be a writing, at least, to evidence the feoffment; 29 Ch. 2, c. 3.] In the first case the estate is oftentimes made upon the livery, and then there may be one estate contained in the * deed, and another made by the livery; also there may pass more land by the livery than is in the deed, and by this means, when there is a fault in the deed, so that the land will not pass by the deed, it may perhaps pass by the livery; but in this case then there must be apt words used in the making of the livery to create the estate also, as well as to give the possession. [The statute of 29 Ch. 2, c. 3, would now exclude these results.) But where the livery of seisin is made with relation to the deed, there it must take effect according to the deed, or not at all; for these words, secundum formam charta, are to be understood according to the quantity and quality of the effectual estate contained in the deed. And therefore if one make a deed of feoffment to another, and in the deed there is contained no condition at all, and when the feoffor doth make livery he doth make livery upon condition; or if the deed contain an estate to him [the feoffor] and his heirs, and he maketh livery of an estate in tail or for life; in these cases there doth pass nothing by the deed. And yet if there be [read, had been] apt words used to create such an estate at the time of the livery made, such an estate may be [might, at the common law, have been] made by the livery without the deed, and then the deed shall be void. But if in these cases the feoffor say, when he doth make livery on condition in tail, or for life, secundum formam charta; in this case there is a good feoffment made according to the deed, and the additional words are void. So if a man make a lease for years, and make livery secundum formam charta; this is but a lease for years still. And if A. give land to B. to have and to hold after the death of A. to B. and his heirs, this is a void deed; and therefore if the livery of seisin be made secundum formam charte, the livery of seisin is void also, [unless Co. 2.55.5.94. livery be made after the day. But if, when he If A. by deed give land to B. to have and to & Greenwood's hold, after the death of A., to B. and his heirs; this case, B. R. Mich. 17 Jac. Co. super Lit. 222. Perk. Sect. 42. is a void [grant by] deed; and therefore, if upon If an agreement be between two, that the one shall enfeoff the other upon condition for surety *P. 220. of money, and afterwards livery of seisin is made generally, without any such condition; in this case, it is said by some, the estate shall be on condition still; [being part of the same transaction, and founded on the original agreement. However the statute of Frauds and Perjuries, 29 Ch. 2, c. 3, would now exclude the evidence of the condition.] If there be a fault in the deed, as by the mis naming of the feoffor, &c. feoffee, &c. or the like, and afterwards the feoffor, &c. doth himself in person make livery of seisin upon this deed to the feoffee, &c.; by this the fault of the deed may be holpen and cured. 203. 7 H. 7. 9. If one make a feoffment to himself and another, Perk. Sect. 204. and give livery of seisin to the other, this is a good feoffment, and shall enure to the other wholly, and he shall take the whole by the feoffment and the livery; [for no person can give or grant to himself; or be agent and patient: he should have made the feoffment to the other, or to a stranger, and to the use of both, in order to have accomplished his intention.] And so if the livery be made to one that is capable, and to another that is not capable, [as joint-tenants,] he that is capable shall take the whole, and the other shall have nothing. So if a feoffment be made to two, [and as jointtenants,] and one of them die before the livery is made, and after the livery is made to the survivor; in this case the livery shall enure to the survivor only, and he shall have all the estate thereby. [But if the grantees were to be tenants in common, no grantee could take more than his share, because his share is defined and fixed.] So if a feoffment be made, without deed, to a corporation and to I. S., and livery is made to I. S. alone; in this case I. S. shall have the whole, and the corporation nothing at all; [because a corporation are incapable of taking except by deed.] 10 Ε. 4. 1. If a feoffment [by deed] be made to four, and Dyer, 35livery of seisin is made to one, two, or three of Co. 5.95 them, [in the absence of the others;) this [livery] shall enure to them all. But if the feoffment be without deed, it shall enure to him wholly to whom the livery is made. And if one of them give warrant to the rest, to take livery for him, and they do so; this shall enure to them wholly, and not to him at all for any part; [for want of a deed of feoffment to all jointly.] If the tenant make a feoffment [by deed) to his 10 E. 4. 12. lord and another, and give livery of seisin to the other; this shall enure wholly to the other until the lord agree to it, and then to them both. [It is apprehended the law is otherwise; namely, the estate will vest in both, subject to be devested, as to the lord, by his disagreement.] Co. super Lit. 21. Co. super Lit. 52. Co. super Lit. 52. If one make a deed of feoffment of one acre of land to A. and his heirs, and another deed of the same land to A. and his heirs of his body, and deliver seisin according to the form and effect of both deeds; in this case it shall enure by moieties, i. e. he shall have an estate tail, and the fee simple expectant in the moiety, and a fee simple in the other moiety. Query if he shall not have an estate tail in the entirety, with the remainder in fee. If there be a feoffment to a man and his heirs of his body, habendum to him and his heirs for ever, he will have an estate tail, and also the fee expectant. But if the feoffment be to him and his heirs, habendum to him and his heirs of his body, the premises will be qualified and explained by the habendum, and the feoffee will have an estate tail only. 1 Inst. 21 b.; Thurman v. Cooper, Poph. 138.] If two several deeds of feoffment be made to two several persons of one and the same thing, he that can get the seisin first shall have it. Rem, domino, vel non domino, vendente duobus, in jure est potior traditione prior. [But if a devise be to one man and his heirs, and afterwards to another man and his heirs, by the same will, and there is not any apparent intention of revoking the will, the several devisees will in this instance be joint-tenants; (1 Inst. 112 b.; and Hargr. note, 144;) or tenants in common, as will best effectuate the intention of the testator. Ibid.] If lessee for life make a feoffment, and a letter of attorney to the lessor to make livery, and he doth make livery accordingly; in this case this [act of livery] shall not enure to bar him of his entry upon the feoffee for the forfeiture of his lessee. But if lessee for years make a feoffment in fee, and such a letter of attorney to the lessor, and he doth deliver seisin accordingly; this livery shall bind him: for it shall be said to be his own livery, as in his own right, because the lessee had no freehold whereof to make livery. (At this day the livery.could not proceed from the lessor, unless the feoffment were evidenced by writing, as his act.] * If a lessor make a deed of feoffment, and a *P. 221. letter of attorney to the lessee for years to give livery, and he doth it accordingly; this shall not KK |