Lit. Sect. 60. super Lit. 190.

Lit. Sect. 250.

Lit. Sect. 59. 66. Co. super Lit. 52.

mon law,] by word only (17.) Also a feoffment
may be made of the moiety, third, or fourth part
of a manor, or of a piece of land, without deed.
And yet, if one be seised of a manor, whereunto
an advowson is appendant, and he make a feoff-
ment of three acres, parcel of the manor, together
with the advowson to two men, habendum the one
moiety, with the advowson to one of them, and the
other moiety to the other; in this case the feoff-
ment cannot be well made, unless it be by deed, [so
as to pass the advowson.]

If a lease be made for five years, on condition that if the lessee pay to the lessor, within the two first years, 10l., then that he shall * have the land *P. 209. to him and his heirs, or otherwise but for five years; in this case, if livery of seisin be made to the lessee before his entry, this is a good feoffment. Et sic de similibus. [And in that case the lessee has the fee immediately; but if no livery be made, then he has a term to be enlarged, on a contingency or condition, into a fee.

Every feoffment, also, whether it be made by Livery of seisin. deed or without deed, must be made with livery of Doct. & Stud.13. seisin; and this livery of seisin must be made according to the rules of livery and seisin hereinafter laid down, for this is of the essence of a feoffment; and a feoffment is not accounted perfect until livery of seisin be made, for until then the feoffee, [though he enter,] hath only an estate at will in the land, and the feoffor may put him out when he will. And if either of the parties die before Equity. the livery of seisin be made, the feoffment is void; and no warrant of attorney, to make livery, can be executed after the death of the feoffor or feoffee, [for the authority is revoked by death ;) neither is

(17) By the statute of 29 Car. 2, c. 3, § 3, it is enacted, "That no leases, estates or " interests, either of freehold, or terms of years, or any uncertain interest, not being copy"hold or customary interest, of, in, to or out of any messuages, manors, lands, tenements,

or hereditaments, shall be assigned, granted or surrendered, unless it be by deed or note " in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorised, by writing, or by act and operation of law." And by the same statute it is enacted, "That all leases, estates, interests of freehold, or terms of

"

years, or any uncertain interest, of, in, to or out of any messuages, manors, &c. made " or created by livery and seisin only, or by parol, and not put in writing, and signed by the " parties so making or creating the same, or their agents thereunto lawfully authorised by

writing, shall have the force and effect of leases or estates at will only, and shall not, " either in law or equity, be deemed or taken to have any other or greater force or effect;

any consideration for making any such parol leases or estates, or any former law or usage " to the contrary notwithstanding."

5. Livery of seisin. Quid.

there any remedy in this case, to get the assurance
to be made perfect, but in a court of equity (18),
[unless there be a deed, and the deed may operate
as a grant.] But in case where there are many
feoffees, [who are to be joint-tenants,] there the
death of one or some of them will not hinder the
livery, but it may be made to him or them that do
survive. [But if the feoffees are to be tenants in
common, the livery will be void as to the shares of
those persons who die before livery. The like ob-
servation, mutatis mutandis, is applicable to several
feoffors by attorney :) we must see therefore, in
the next place, what this livery of seisin is.

Livery of seisin, or giving of possession, is a New terms of [feudal] solemnity, or overt (viz. open and noto- the law. rious] ceremony, required by law, and used for the passing of [the immediate freehold of] lands or tenements corporeal, as an evidence or testimonial of the willing departing by him that makes the livery, from the thing whereof livery is made, and the willing acceptance thereof by the other party (19). And this is as ancient as a feoffment; West. 2 part, for no feoffment is made without livery of seisin, Symb. Sect. 251. albeit livery of seisin be sometimes made upon 48. other conveyances, [as a gift in tail and a lease for life.] And it was first invented, [even before writing was in general use,] as an open and noto

rious act to this end; and that by this means the

Co. super Lit.

(18) In the case of Jackson v. Jackson, heard in November 1730, a deed of lands in two different counties, by way of feoffment; livery and seisin of the lands in one county only indorsed. The deed was made in 1657. Lord Chancellor King declared the plaintiff had a good foundation to apply to a court of equity, as he had not his evidences to try his title at law: that were he to try the matter (at law), he should presume, and so direct, that livery was executed according to the deed, after that length of time; but that, however, a court of equity would aid a defect of that kind. Fitz. Gibb. Rep. 146. S. C. in select Cases in Chancery, 81. See also Bokenham v. Bokenham, 1 Chan. Ca. 240. And where such a defective conveyance is aided, it shall be discharged of mesne incumbrances by the party, [except against purchasers for a valuable consideration, without notice; as, if a mortgage wants livery, and thereupon the heir confesses judgments to another, the mortgagee shall be released and discharged from the judgments, [for a judgment creditor is not considered as a purchaser for a valuable consideration, within the rule respecting notice.] Burgh v. Burgh, Rep. in Chan. Temp. Finch, 28. The assistance and relief, afforded by a court of equity, in aid of a defective conveyance, is very extensive; it will remedy not only mistakes in form or upon the face of the deed, but will supply the material part or essence of a conveyance, as livery to a feoffment, a surrender of a copyhold, &c. In what cases, and in what manner, equity will supply defective conveyances, see in Com. Dig. Chancery (2 T.) Copyhold (P. 2.) Eq. Ca. Abr. Deeds (D.) Vin. Abr. Faits (T. a.)

(19) Seisin is a technical term, to denote the completion of that investiture, by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. Per Ld. Mansfield, 1 Burr. 107. For the original intent and manner of trans ferring lands by livery of seisin, see Spel. Gloss. 510. Mad. Form. Angl. Dissert. 9.

Co. super Lit.

48.

Bro. Estates, 4.
Plow. 28, 29.

country might take notice how lands do pass from
man to man, and who is owner thereof; that such
as have title thereunto may know against whom to
bring their actions, [1 Prest. Est. p. 224;] and that
others may know that have cause, of whom to take
leases, and of whom to require wardships, &c.
And by this means, if the title come in question,
the jury, [since the livery is made within the
county,] can the better tell in whom the right
is (20). And of this livery of seisin there are
two kinds: 1. A livery in deed. 2. A livery in
law, called a livery within view. The livery in 6. Quotuplex.
deed is, when the feoffor, donor, &c. by himself,
or another, [viz. by an attorney duly appointed,
and such appointment must be by deed,] taketh
the ring of the door of the house, or a turf, or
twig of the land, and delivereth the same upon the
land unto the feoffee, donee, &c. in the name of
seisin of the house, or seisin of the land. And
this is done sometimes by the parties themselves if
they be present, and sometimes in their absence
by their attornies or procurators. The livery in
law is, where the feoffor saith to the feoffee, being
in view of the land, I give you yonder house to
you and your heirs, go enter into the same, and
take possession thereof accordingly, or the like (21),
[and he doth enter accordingly.]

operation of it.

#P. 210.

Because this manner of conveyance by feoff- 7. The nature and ment is so ancient, * therefore this ceremony (being inseparably incident to a feoffment) is much favoured in law: and therefore it is expounded and taken strongly against him that doth make it, and beneficially for him to whom it is made. And for this cause, it worketh not only to transmit [transfer] the present estate, but also to bar all present and future rights and possibilities. [So where there is a limitation to two, and the survivor of them, and his heirs, a feoffment will pass the life estate, and occasion a forfeiture of that estate, and extinguish the contingent remainder; for as an estoppel, in extinguishing contingent interests

(20) The disuse of livery of seisin, and the want of sufficient notoriety thereby occasioned, is very frequently regretted by Mr. J. Blackstone. See 2 vol. Com. 337. See also Bac. Law Tracts, 154.

(21) In what cases livery may be made within the view, see Vin. Abr. Feoffment (M.); and further as to the different kinds of livery, in Bac. Abr. Feoffment (A.) Com. Dig. Feoffment (B.)

: 8. Where and in what cases it is requisite; or not.

and possibilities of estate, a fine and a feoffment
are of equal effect.) If therefore one make a
lease for life to I. S. the remainder to the right
heirs of I. D. (which I. D. is then living) and
give livery of seisin according to the deed; in this
case, albeit he in remainder be not capable of this
remainder, yet by the livery it shall pass out of
the feoffor, and shall be in abeyance during the
life of I. S. [So is the current of authorities; but
Mr. Fearne, (Butler's Fearne, p. 285,) is inclined to
think the fee remained in the feoffor till it can vest
under the remainder. This point is examined in
2 Prest. Abr. p. 90, 105. 3 Ib. 88.] So if a feoff-
ment be made to one [read, two] & heredibus,
without the word " suis," and livery of seisin be
made on this of the deed; this livery perhaps may
make the estate good (22); [3 Prest. Abstr. p. 87.
provided the livery be to the two and their heirs,
and not by reference to the charter, as accord-
ing to the form and effect of the charter; but,
at this day, as there must be a writing, and such
writing is of the essence of the assurance, the
omission of the word heirs, or of words tanta-
mount, or perhaps of words, perhaps of appro-
priation, would be fatal. Suppose the livery to be
to a man and his heirs, and the charter of feoff-
ment to omit the word heirs, but to express that
the livery was made to the feoffee in fee, will this
be sufficient? It is apprehended it will not. If
the writing expressed that livery was made to the
party and his heirs, without containing any for-
mal grant to him and his heirs, this writing would,
it is presumed, be sufficient.]

1

Lit. Sect. 70.

Doct. & Stud. 13.
Co. super Lit.

Livery of seisin is needful, and must be had and Co. 5.92. made in all cases where any estate of fee simple, Co. 6. 26. fee tail, or for a man's own or another man's life, is made or granted by writing, or word, in the country 49. of any lands or tenements corporeal, where the person granting them, has the land in possession (23). And so also where one doth make a lease of land to another for years, the remainder to a stranger

(22) As to the operation of livery to pass a future interest, where the feoffor is out of possession, and in what cases several parcels will pass by one livery, or where several parties may take by a livery to one, see Bac. Abr. Feoffment (B.)

(23) For at common law no estate of freehold in lands could pass without livery of seisin; and therefore it is a rule, that no freehold can be created to commence in futuro, for the livery of seisin must operate immediately, or not at all. 5 Co. 94. [Co. Lit. 216a. 217 2 Sulliv. Lect. 58.]

Co. super Lit. 216.

in fee simple, fee tail, or for life; in these cases livery of seisin must be had and made to the lessee for years, or else nothing will pass to him in remainder; and yet the lease for years will be good. And so also where a lease for years is made, upon condition that if such a thing happen the lessee shall have the fee simple; in this case the lessee must have livery of seisin before his entry, otherwise the estate will not increase. (This is not quite correct. To give him the fee immediately, there must be livery; but if livery be not made prior to entry, he will have a term immediately, and the fee will arise on the contingency, provided Plow. 214. 219. there be a deed.] And so also if the king make a [King.] feoffment of the land he hath in the right of the Duchy of Lancaster, that is not within the county Palatine; in this case livery of seisin must be made as in the case of a subject. This proves that the king may have land in his natural capacity.] And in all these cases, where livery of seisin is requisite, and it is not made, there doth pass [to the intended freeholder] no estate by the conveyance, but [except] an estate at will at the

Co. 2. 23.
Lit. Sect. 59.
Co. super Lit.
49.

most.

But livery of seisin is not needful or requisite to be had and made in cases where any estate or [read, of] fee simple, fee tail, or for life, is made or granted of any lands by matter of record: as, by the king's letters patents, fine, recovery, deed indented and inrolled, and the like. Nor is it needful where any such estate is created by way of covenant and raising of use, [or] by way of exchange, endowment ad ostium ecclesiæ, or ex assensu patris. Nor is it needful where any such estate is passed or granted [or restored] by way of surrender, devise, release, or confirmation, or by way of increase; or, [as in the example of fees on condition,] executory grant; as [read, or] when the fee simple is granted to the lessee for life or years in possession; [or having an estate immediately preceding the estate to be transferred; or capable of enlargement. See 2 Prest. Convey. p. 211. 245. 271.] Neither is it requisite, or can be made, [except as to the reversion or remainder of lands, and with such consent as aforesaid,] where any incorporeal hereditaments, as reversions, rents, commons, or the like, are granted in fee simple,