356 CHAP. XXXVII. SAME SUBJECT. OF GRANT AND ATTORNMENT. 9 b. Definition of a grant. GRANT, concessio, is properly of things incorporeal, 3 Co. 63, in Lincolne which (as hath been said) cannot pass without deed. Colledge case. (1 Rol. Abr. 835. 6 Co. 16 b.) 172 a. Lib. 3. fol. 63. in Lincolne Colledge case. 312 a. Attornment necessary Grant, concessio, is in the common law a conveyance of a thing that lies in grant and not in livery, which cannot pass without deed; as advowsons, services, rents, commons, reversions, and such like. Of this sufficient hath been said in the First Chapter of the First Book (A). It is to be observed, to what kind of inheritances being to the grunt of what in- granted, an attornment is requisite. And in this chapter Littleton speaketh of five. First, of a seignory, rent service, &c. Secondly, of a rent charge. Thirdly, of a rent seck. And heritances. 21 H. 7. 1. (1 Rol. Abr. 292, 293.) (A) A grant is a conveyance appropriated to the transfer of things not in possession, as reversions and remainders, and other incorporeal hereditaments, as rents, advowsons, &c. of which no livery can be had. Hence the expression that advowsons, rents, commons, &c. lie in grant. It was a rule that a grant could not be made without deed; because as the possession of those things, which are the subject matter of a grant, cannot be transferred by livery, there could be no other evidence of a grant but the deed. But it was always held that a grant, with the attornment of the tenant, was equally valid with a feofment and livery. Ante, 9 a. p. 333, 334. 2 Bl. Com. 317. Watk. Conv. 97. 4 Cru. Dig. 111. 2 Prest. Conv. 209, 210. A gift, donatio, is properly applied to the creation of an estate tail, as a feoffment is, to that of an estate in fee-simpic. And considered in this view, it differs in nothing from a feoffment, but in the nature of the estate passing by it; for the operative words of this conveyance are do or dedi, and livery of seisin must be given to render it effectual. 2 Bl. Com. 306. A feoffment, however, is always applied to an immoveable thing; but a grant is often used for the conveyance of moveable things also; as trees, cattle, household stuff, &c. the property whereof may be aitered, as well by gift, as by sale or grant. Shep. Touch. 227. A grant is, at this day, a suspicious species of conveyance, as being without what the law denominates either a good or valuable consideration. It is void as to those who were creditors of the donor at the time of its being made, though valid as to subsequent creditors. Watk. Conv. 100. 13 Vin. 519. tit. Fraud. 22 Vin. 15. tit. Voluntary Conyay. Ante, 3 b. p. 236, 237. and the notes there.-[ Ed.] hereafter in this chapter of two more, viz. of a reversion and remainder of lands; for the tenant shall never need to attorn, but where there is tenure, attendance, remainder, or payment of a rent out of land. 36 Ass. pl. 3. 31 H. 8. 59. (Post, 305 b.) tit. Attornment Br. And therefore if an annuity, common of pasture, common 1 H. 5. 1. 37 Ass. 14. of estovers, or the like, be granted for life or years, &c. the reversion may be granted without any attornment; and albeit sometimes in some of these cases, or the like, an attornment be pleaded, yet it is surplusage, and more than needeth, because in none of them there is any tenure, attendance, remainder, or payment out of land. Attornment, is an agreement of the tenant to the grant of the seignory, or of a rent, or of the donee in tail, or tenant for life or years, to a grant of a reversion or remainder made to another. It is an ancient word of art, and in the common law signifieth a torning or attorning from one to another. We use also attornamentum as a Latin word, and attornare to attorn. And so Bracton useth it (a): Item videndum est, si dominus attornare possit alicui homagium et servitium tenentis sui contra voluntatem ipsius tenentis, et videtur quòd non. 81 b. Britton, ubi And the reason why an attornment is requisite, is yielded in old books to be, Si dominus attornare possit servitium te- Bracton, lib. 2. fol. nentis contra voluntatem tenentis, tale sequeretur inconve- supra. niens, quod possit eum subjugare capitali inimico suo, et per quod teneretur sacramentum fidelitatis facere ei qui eum damnificare intenderet (B). (B) By the feudal law the fendatory, we have seen, could not alien the fend without the consent of the lord, ante, p. 211, n. (A); neither could the lord alien or transfer his se ignory without the consent of the feudatory. Wright Ten. 39. Feud, b. 2. t. 34. s. 1. Craig, de jure feud. 129. 374, 375; for the obligations of the superior and inferior being mutual and reciprocal, the feudatory was as much interested in the conduct and abi lity of the lord, as the lord was in the qualifications and ability of his feudatory. And as the lord could not alien, so neither could he exchange, mortgage, or otherwise dispose of his seignory, without the consent of his vassal. Wright. 31. Hence arose the doctrine of attornment, which is defined to be "the consent of the tenant to the grant of the scignory, or the reversion, putting the grantee into the possession of the services due from such tenant." Gilb. Ten, 81. The reason for attornment, says Lord Ch. B. Gilbert, was threefold. 1st. That the tenant in possession might not be subjected to a stranger, or a new lord, without his own approbation and consent. 2d. That he might know to whom he was to render his services, and distinguish the lawful distress from the tortious taking of his cattle: and this reason was so prevalent, that when the statute quia emptores terrorum, gave a free alienation, in respect of. 3 309 b. Different kinds of attornment. It is to be understood, that there be two kinds of attorn ment, viz. an attornment in deed or express, and an attornment in law or implicit. Of attornment express or in deed Littleton, sect. 551. speaketh, and of attornment in law he speaketh after in this chapter. And to both these kinds of attornments, there is an incident inseparable, that is, that the tenant hath notice of the grant; for (an attornment being an agreement or consent to the grant, &c.) he cannot agree or consent to that which he knoweth not. And the usual pleading is, to which grant the tenant attorned. And therefore if a baily of a manor who used to receive the rents of the tenants, purchase the manor, and the tenants having no notice of the purchase, continue the payment of the rents to him, this is no attornment. So, if the lord levy a fine of the seignory, and by fine take back an estate in fee, the tenant continueth the payment of the rent to the first conusor without notice of Lib. 2. Tooker's case, the fines, this is no attornment. But it is to be known, that Lib. 2. fol. 67 b. Dier 302. Tooker's ubi supra. there be two kinds of notices, viz. a notice in deed or express, whereof Littleton, sect. 551. speaketh, when he saith, that the tenant agreeth to the grant, and a notice in law or im plied, whereof Littleton hereafter speaketh in this chapter. the superior lord, yet the tenant's right of attornment continued unaltered. 3d. That by such attornment, the grantee of the reversion or seignory, might be put into the possession of it, and that others might be apprised and informed of the transfer. Ibid.-The necessity of attorn ment was partly avoided by the method of conveying to uses under the statute 27 H. 8. c. 10. by which the possession is immediately executed to the use. And it is now almost entirely taken away by the statutes 4 & 5 Ann. c. 16. and 11 Geo. 2. c. 19. The former of which enacts, that all grants or conveyances, by fine or otherwise, of any manors, or rents, or of reversions or remainders, shall be effectual without the attornment of any of the tenants; but it is thereby provided, that no tenaut shall be prejudiced by payment of rent to any grantor or conusor, or by breach of any condition for non-payment of rent, before notice shall be given to him of such grant by the conusee or grantee. And by the latter statute, reciting, that the possession of estates is rendered very pre carious by the frequent and fraudulent practice of tenants, in attorning to strangers, who claim title to the estates of their respective landlords or lessors, who are thereby put out of the possession of their respective estates, and put to the difficulty and expence of recovering the same by action at law; it is therefore enacted, that all such attornments shall be void, and the possession not altered; but it is thereby provided, that the act shall not extend to affect any attornment made pursuant to any judg ment at law, or decree or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagees on a forfeited mortgage. Before the statute of Anne, attornment was necessary in the case of a mortgage, on the principle of notice to the tenant; but since that statute the conveyance is complete without attornment, and the mortgagee is entitled to the rents on notice. Moss v. Gallimore, Dongl. 265. Ante, p. 37. n. (Z). And attornment is now seldom heard of in practice, except in the case of a recovery in ejectment, where the tenants frequently attorn to the lessor of the plaintiff, in order to save the expence of sheriff's poundage, and officers fees, on executing a writ of possession.-[Ed.] Attornment in deed. [COKE, 309 b.] ATTORNMENT is, as if there be lord and tenant, and LITTLETON. the lord will grant by his deed the services of his tenant to [Sect. 551.909a.] another for term of years, or for term of life, or in tail, or in fee, the tenant must attorn to the grantee in the life of the grantor (c) by force and virtue of the grant, or otherwise the grant is void. And attornment is no other in effect, but when the tenant hath heard of the grant made by his lord, that the same tenant (hereafter in this chapter Littleton doth teach what manner of tenant shall attorn) do agree by word to the said grant (and so he may, and more safely, by his deed in writing), as to say to the grantee, I agree to the grant made to you (1), &c. or I am (2) well content with the grant made to you; but the most common attornment is, to say (3), Sir, I attorn to you by force of the said grant, or I become your tenant, &c. or (4) to deliver to the grantee a penny, or a halfpenny, or a farthing, by way of attornment. Littleton here putteth five examples of an express attornment, but of them the last is the best, because the ear is not only a witness of the words, but the eye of the delivery of the penny, &c. and so there is dictum et factum. And any other words which import an agreement or assent to the grant, do amount to an attornment. (1) &c. not in L. and M. nor Roh. (2) bien, not in L. and M. nor Roh. (3) &c. added in L. and M. and Roh. (4) liverer-deliverer, 1. and M. and Roh. (C) That is, at common law, before the 4 & 5 Ann, c. 16. So, where a lord exchanged the services of his tenant with another for land, the attornment of the tenant, by whom the services were to be performed, was necessary to perfect such exchange. Perk. sect. 249. 259. And where a man made a lease for years of land, rendering rent, if he afterwards granted the reversion to another for years, to begin after the death of the graator; the attornment of the lessee for years in possession was necessary. So, where a lessee for twenty years made a lease over to a third person for ten years, rendering rent, and then granted the reversion to a stranger, attornment of the lessee for ten years was requisite: but if the lease for ten years had been made without any reservation of rent, it would have been otherwise. For it was a rule, that where there was no tenure, attendancy, rent, or service to be paid or done, there attornment was not necessary. Supra, 312 a. p. 356. And hence it was, that where a person granted common of pasture appendant or appuitenant, or estovers out of land, there needed no attornment of the tenant to make such grant good. And for the same reason, where a rent or common was granted to one for life, a subsequent grant of the reversion of it, was good without attornment. Also if a man had made a lease to one for ten years, and afterwards made a lease to another for twenty years, in this case the second lease was good for the ten years to come after the first ten years ended, without any attornment of the first lessce. Sheph. Touch. 953, 256.-[Ed.] 1. How made. Might be by words alone; [COKE, 309 b.] or by delivery of a thing by way of attorn ment. 310 a. And might be made in the grantee's absence. Tooker's case. 28 H. 8. tit. Attorn And albeit these five express attornments be all set down (b) Lib. 2. fol. 68, 69. by Littleton, to be made to the person of the grantee (b), yet an attornment in the absence of the grantee is sufficient; for ment. Br. 40. (10 Rep. if he doth agree to the grant, either in his presence or in his absence, it is sufficient. 52. Cro. Car. 440. 1 Rol. Abr. 300. Dyer 298 a.) S09 b. And in some cases was good, notwithstanding an alteration in the thing granted. Attornment to the grant for part, was good for the whole. (c) 18 E. 3. tit. Variance, 63. 22 E. 3. 18. Tooker's case. ubi "Of the grant made by his lord." Here is to be seen, when the thing granted is altered, what becometh of the attornment. If there be lord, mesne, and tenant, and the mesne grant over his mesnalty by deed, the lord releaseth to the tenant, whereby the mesnalty is extinct, and there is a rent by surplusage, an attornment to the grant of this rent seck is good, although the quality of that part of the rent is altered, because it is altered by act in law. If a reversion of two acres be granted by deed, and the lessor, before attornment, levy a fine of one of them, and the tenant attorn to the grantee by deed, this is good for the other acre. (c) If the reversion be granted of three acres, and the lessee agree to the said grant for one acre, this is good for all three; and so it is of an attornment in law, if the reversion of three acres be granted, and the lessee surrender one of the acres to supra. (Post, 314.) the grantee, this attornment shall be good for the whole reversion of the three acres, according to the grant. 309 a. But it must have been grantor and grantee. Shel "The tenant must attorn to the grantee in the life of the made in the life of the grantor, &c." And so must he also in the life of the grantee; and this is understood of a grant by deed. And the reason hereof is, for that every grant must take effect as to the substance thereof in the life both of the grantor and the grantee. And in this case, if the grantor dieth before attornment, the seignory, rent, reversion, or remainder, descend to his heir; 40 Ass. 19. 34 H. 6. 7. and therefore after his decease the attornment cometh too late : 20 H. 6. 7. (Doct. & so likewise, if the grantee dieth before attornment, an attornment to the heir *is void, for nothing descended to him: and if he should take, he should take it as a purchaser, where the heirs were added but as words of limitation of the estate, and not to take as purchasers. Stud. 86a.) * 309 b. (9 Rep. 84. Sect. 564.) |