Page images
PDF
EPUB

CHAPTER III.

SEISIN AND CONVEYANCE.

SECTION I.

SEISIN.

LIT. 448. Freehold in law is, if a man disseiseth another, and dieth s mn die seised, whereby the tenements descend to his son, albeit that his son gila les doth not enter into the tenements, yet he hath a freehold in law, which by force of the descent is cast upon him, and therefore a release made to him, so being seised of a freehold in law, is good enough; and if he taketh wife being so seised in law, although he never enter in deed, and dieth, his wife shall be endowed.

Co. Lit. 266 b. Here Littleton describeth what a freehold in law is, for he had spoke before in many places of freeholds in deed.1

LEAKE, DIGEST OF LAND LAW, 46–48. A feoffment might be made with an express appropriation of the seisin to a series of estates in the form of particular estate and remainders, and the livery to the immediate tenant was then effectual to transfer the seisin to or on behalf of all the tenants in remainder, according to the estates limited. But future estates could only be limited in the form of remainders, and any limitations operating to shift the seisin otherwise than as remainders expect

h the Seisin

1 “It may not, perhaps, be improper in this place to attempt a short explanation of some words familiar both in the ancient and modern law.

Seisin is a technical term denoting the completion of that investiture by which the 81 tenant was admitted into the tenure, and without which no freehold could be consti. tuted or pass. It is a word common as well to the French as to the English law. It is either in deed, which is, when the person has the actual seisin or possession ; or in law, when after a discent the person, on whom the lands descend, has not actually entered, and the possession continues vacant, not being usurped by another. When lands of inheritance are carved into different estates, the tenant of the freehold in possession, and the persons in remainder or reversion, are equally in the seisin of the fee. But, in opposition to what may be termed the expectant nature of the seisin of those in Estelauti remainder or reversion, the tenant in possession is said to have the actual seisin of the deli lands. The fee is intrusted to him. By any act which amounts to a disaffirmance by him of the title of those in the reversion, he forfeits his estate, and any act of a stranger which disturbs his estate is a disturbance of the whole fee." Hargrave's note, 217.

[ocr errors]

2nd seisin an

eese ant upon the determination of the preceding estate were void at common Cannot law. Thus, upon a feoffment, with livery of seisin, to A for life or in cireqemlil tail, and upon the determination of his estate to B, the future limitaCey' nirea tion takes effect as a remainder immediately expectant upon A's estate.

But upon a feoffment to A in fee or for life, and after one year to B in fee; - or to A in fee, and upon his marriage to B in fee ; — or to A in fee or for life, and upon B paying A a sum of money to B in fee, — the limitations shifting the seisin from A to B at the times and in the events specified, as they could not take effect as remainders, were wholly void at common law. Plowden, 29 ; 1 Hayes Conv. 19-21. Such limitations became possible in dealing with uses and in dispositions by will,

as will appear hereafter. But, mual The exigencies of tenure required that the seisin or immediate freea curenta fe hold should never be in abeyance, but that there should at all times be

a tenant invested with the seisin ready, on the one hand, to meet the claims of the lord for the duties and services of the tenure, and, on the other hand, to meet adverse claims to the seisin, and to preserve it for the successors in the title. Co. Lit. 342 b; Butler's note, Ib; see 1 Hayes Conv. (5th ed.) 12, 14.

This rule had important effects upon the creation of freehold estates ; for it followed as an immediate consequence of the rule, as also from the nature of the essential act of conveyance by livery of seisin, that

a grant of the freehold could not be made to commence at a future time, hechoed in leaving the tenancy vacant during the interval. “Livery of seisin

must pass_a present freehold to some person and cannot give a freehold in futuro.— " If a man makes a lease for life to begin at Michaelmas it is void, for he cannot make present livery to a future estate, and therefore in such case nothing passes.” Co. Lit. 217 a; 5 Co. 94 b, Barwick's Case.

As a consequence of the same rule if a feoffment were made to A for life and after his death and one day after to B for life or in fee, the limitation to B was void, because it would leave the freehold without a tenant or in abeyance for a day after the death of A.?

The seisin or freehold in remainder might be in abeyance during the continuance of the particular estate ; for the present seisin of the tenant of that estate was sufficient to satisfy all the requirements of tenure, and it represented and supported all the future estates and interests in the fee.

Accordingly a remainder might be limited to take effect upon a condition, or in a person not ascertained, as an unborn child, so as to be in

1 “The remainder is good and passeth out of the donor by the livery of seisin ; for the particular estate and remainder, to many intents and purposes, make but one estate in judgment of law." Co. Lit. 143 a. See 1 Hayes Conv. 21.

2 Plowden, 25; Fearne C. R. 307. “Since the tenancy was not allowed to be vacant or in suspense for an instant, it was essential to the validity of every convey. ance of the freehold that it should be made to take immediate effect. On the same principle, it was essential that all substitutions should be so strictly consecutive as not to leave the feud un provided with a tenant even for an instant." 1 Hayes Conv. 16.

abeyance or uncertainty until the condition happened or the person
became ascertained. Such a limitation was good and might remain in
uncertainty so long as the particular estate continued, as it was sup-
ported by the seisin of that estate. But it was essential that it should
have become certain and absolute at the time when the particular estate
determined ; and if not then ascertained, so as to be capable of taking
up the seisin, it failed altogether, and the next estate in remainder Joail gord
took immediate effect.'

A remainder limited to an uncertain person or upon an uncer-
tain condition, and so long as the uncertainty lasted, became known
as a contingent remainder. A remainder limited absolutely and to
a determinate person, or which had become absolute and certain
in ownership by subsequent events was a vested remainder; the
remainderman was presently invested with a portion of the seisin
or freehold.
Lit. § 324. Also, when a man will show a feoffment made to him, a

Seaed great or a gift in tail, or a lease for life of any lands or tenements, there he shall say, by force of which feoffment gift, or lease, he was seised, &c. but where one will plead a lease or grant made to him of a chattel real or personal, then he shall say, by force of which he was possessed, &c.

Co. Lit. 200 b, 201 a. “ He was seised, &c.” Seisin is a word of art, and in pleading is only applied to a freehold at least, as possessed for distinction sake is to a chattel real or personal. As if B. plead a feoffınent in fee, he concludeth, virtute cujus prædicť. B. fuit seisitus, &c. But if he plead a lease for yeares, he pleadeth, virtute cujus prædictus B. intravit, et fuit inde possessionatus, and so of chattels personals, virtute cujus fuit inde possessionatus.

And this holdeth not only in case of lands or tenements which lie in livery, but also of rents, advowsons, commons, &c. and other things that lie in grant, whereof a man hath an estate for life or inheritance.

Also when a man pleads a lease for life, or any higher estate which passeth by livery, he is not to plead any entry, for he is in actual seisin by the livery itself. Otherwise it is of a lease for years, because there he is not actually possessed until an entry.

Lit. $ 647. Also, if a parson of a church dieth, now the freehold of the glebe of the parsonage is in none during the time that the parsonage is void, but in abeyance, viz. in consideration and in the under

1 Co. Lit. 342 b; 378 a ; Perkins, &$ 52, 87. “If a man seised of land, lease it to a stranger for life, and grants the remainder over to the right heir of J. S., which J. S. is then alive ; in that case the fee is in abeyance, viz., in the consideration of the law, and is in no certain person." Ib. $ 708. Fearne C. R. 3, 281, 307; “It is a general rule, that every remainder must vest, either during the particular estate, or else at the very instant of its determination." Ib. 307. A contingent remainder, as putting the freehold in abeyance, seems to have been originally regarded as an infringement of feudal principles, and is said not to have been fully recognized until the reign of Henry VI. See Williams, Real Prop. 243, 7th ed.

standing of the law, until another be made parson of the same church ; and immediately when another is made parson, the freehold in deed is in him as successor.

SECTION II.

DESCENT AND PURCHASE.

LIT. $ 12. Also, purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors, or of his cousins, but br his own deed.

Co. Lit. 18 b. A purchase is always intended by title, and most properly by some kind of conveyance, either for money or some other consideration, or freely of gift ; for that is in law also a purchase. But a descent, because it cometh merely by act of law, is not said to be a purchase; and accordingly the makers of the Act of Parliament in 1 H. 5, ca. 5, speak of them that have lands or tenements by purchase or descent of inheritance. And so it is of an escheat or the like, because the inheritance is cast upon, or a title vested in the lord by act in law, and not by his own deed or agreement, as our author here

saith. Like law of the state of tenant by the curtesy, tenant in dower, Doesnotin

bil or the like. But such as attain to lands by mere injury or wrong, as wwiiile by disseisin, intrusion, abatement, usurpation, &c. cannot be said to meetodu come in by purchase, no more than robbery, burglary, piracy, or the

like, can justly be termed purchase.

SECTION III.

LIVERY OF SEISIN.

Lit. & 59. And it is to be understood, that in a lease for years, by deed or without deed, there needs no livery of seisin to be made to the lessee, but he may enter when he will by force of the same lease. But

of feoffments made in the country, or gifts in tail, or lease for term Once the light coof life; in such cases where a freehold shall pass, if it be by deed or 'node without deed, it behooveth to have livery of seisin.

Co. Lit. 48 a, b. And there be two kinds of livery of seisin, viz. a livery in deed, and a livery in law. A livery in deed is when the feoffor taketh the ring of the door, or turf or twig of the land, and delivereth the same upon the land to the feoffee in name of seisin of the land, &c. per hostium et per haspam et annulum vel per fustem vel baculum, &c.

A livery in law is, when the feoffor saith to the feoffee, being in the view of the house or land, “I give you yonder land to you and your heirs, and go, enter into the same, and take possession thereof accordingly," and the feoffee doth accordingly in the life of the feoffor enter, this is a good feoffment, for signatio pro traditione habetur. And herewith agreeth Bracton: Item dici poterit et assignari, quando res vendita vel donata sit in conspectu, quam venditor et donator dicit se tradere : and in another place he saith, in seisina per effectum et per aspectum. But if either feoffor or the feoffee die_before_entry the livery is void. And livery within the view is good where there is no deed of feoffment. And such a livery is good albeit the land lie in another county. A man may have an inheritance in an upper chamber, though the lower buildings and soil be in another, and seeing it is an inheritance corporeal it shall pass by livery.

Lit. $ 60. But if a man letteth lands or tenements by deed or with out deed for term of years, the remainder over to another for life, or in tail, or in fee ; in this case it behooveth, that the lessor maketh livery of seisin to the lessee for years, otherwise nothing passeth to them in the remainder, although that the lessee enter into the tenements. And if the termor in this case entereth before any livery of seisin made to him, then is the freehold and also the reversion in the lessor. But if he maketh livery of seisin to the lessee, then is the freehold together with the fee to them in the remainder, according to the form of the grant and the will of the lessor.

[ocr errors][merged small]

THOROUGHGOOD'S CASE.

Robt. Thor
King's BENCH. 1612.

- mode deel
[Reported 9 Co. 136.)

land lost Ose. De It was found by office in the county of Cambridge, 21 Jan. anno 36 Eliz. by force of a writ of Diem clausit extremum after the death of "

el. Deed look Robert Thoroughgood, that he was seised in fee of an house, &c. and divers lands and tenements in Tadlowe in the county aforesaid, and le that the said house, &c. was held of the King in chief by knight's ser- 2. vice; and he being thereof so seised fecit & sigillavit in dicto messua- 7 gio quoddam scriptum indentatum, in hæc verba : To all Christian people, &c. Robert Thoroughgood sendeth greeting, &c. Know ye, that I the said Robert for divers good causes, &c. have given, granted, w and enfeoffed, and by these presents do give, grant, enfeoff, and con- wiré haud firm to Henry Hutton and Edward Eliot all that my capital messuage, i w ilgood &c. lands and tenements, &c. habendum unto the said Henry Hutton, and Edward Eliot, and their heirs, &c. dať 18 Julii anno 35 Eliz. Et ulterius dicunt, quod præd Roberť jacens in extremis deliberavit in prieďmessuagio præd'18 Julii scriptum præd indentatum præfatis

fecit & sigiliwiet her knight's sere

« PreviousContinue »