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. LIT. § 12. DESCENT AND PURCHASE. 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 by 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, or the like. But such as attain to lands by mere injury or wrong, as by disseisin, intrusion, abatement, usurpation, &c. cannot be said to come in by purchase, no more than robbery, burglary, piracy, or the like, can justly be termed purchase. Does, not in. clubs illegal 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 Chocanecas of life; in such cases where a freehold shall pass, if it be by deed or 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. years. LIT. § 60. But if a man letteth lands or tenements by deed or with- How seisin 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 may 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. THOROUGHGOOD'S CASE. KING'S BENCH. 1612. Robt. Thorough good made deed 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 steed that 1. Deed look Robert Thoroughgood, that he was seised in fee of an house, &c. and feel by dedivers lands and tenements in Tadlowe in the county aforesaid, and every. that the said house, &c. was held of the King in chief by knight's ser- 2. very vice; and he being thereof so seised fecit & sigillavit in dicto messua- dead in gio quoddam scriptum indentatum, in hæc verba: To all Christian name gseisin people, &c. Robert Thoroughgood sendeth greeting, &c. Know ye, is good fassthat I the said Robert for divers good causes, &c. have given, granted, inz seisin. and enfeoffed, and by these presents do give, grant, enfeoff, and con- mere handing firm to Henry Hutton and Edward Eliot all that my capital messuage, is not yook! &c. lands and tenements, &c. habendum unto the said Henry Hutton, and Edward Eliot, and their heirs, &c. dat' 18 Julii anno 35 Eliz. Et ulterius dicunt, quod præd Robert' jacens in extremis deliberavit in præd' messuagio prad' 18 Julii scriptum præd' indentatum præfatis же necessary. say chat Six is name seisin. f Henrico Hutton & Edwardo Eliot pro et in nomine seisinæ præd messuagii & omnium residuorum terrarum & tenementorum indicto scripto indentato contentorum: and further found the other points of the writ. And upon this case two questions were moved; 1. If in this case the jury have found a sufficient delivery of the indenture to make it a deed in law. 2. If this delivery of the indenture in the house, in the name of seisin of the house, and of the residue of the lands and tenements aforesaid, was a sufficient livery of seisin in law, or not. As to the first, it was resolved, that the actual delivery of a writing sealed to the party, without any words, is a good delivery; for in traditionibus scriptorum non quod dictum est, sed quod gestum est inspicitur: but here he saith, I deliver this writing to you," which clearly is sufficient, although he doth not say, as his deed or as his act. And therefore if A. makes a writing to B. and seals it, and delivers it to B. as an escrow, to take effect as his deed when certain conditions are performed, it has been adjudged to be immediately his deed, for the law respects the delivery to the party himself, and rejects the words which will make the express delivery to the party, upon the matter no delivery. And therefore in Mich. 12 H. 8. Rot. 751. in Banco, Anne Quilter, late wife of John Quilter, and others, executors of the will of the said John Quilter, brought an action of debt against Edward Cobham on a bond, &c. the defendant pleaded that he delivered the bond to the testator as a schedule, upon condition if the plaintiff made indentures between the defendant ex una parte, & præfat' testator' ex altera parte, de certis conditionib', convent & agreament' inter easd' partes adtunc concord, &c. pro adnullatione præd script' obligat, &c. ante festum Mich' Archang' deliberand' quod extunc præd' script obligator' in omni suo robore staret, sin aliter, vacua foret: et id' defendens dicit quod præd' testat non fecit aliquam indent' &c. & sic id defendens dicit quod script præd' in formâ præed' deliberat dictis indent' inter easd partes minime confectis non est factum suum, et hoc, &c. Judgment if action? And thereupon the plaintiff demurred in law, and it was resolved, that the said delivery was good in law, although the condition was not performed, and the plaintiffs had judgment to recover. And Tr. 13 H. 8. Rot. 405 in Banco, between T. Bodenham, Esq. plaintiff and Ed. Mermion Clerk, defendant in debt on a bond the like plea pleaded, and a demurrer upon it, and judgment given for the plaintiff which judgments (upon search which I commanded to be made) I have seen. And therewith agrees the report of 19 H. 8. 8. a. and takes the difference when it is so delivered to the party himself, and when to a stranger, as it was there agreed, 35 Ass. p. 6. a writing may take effect by actual delivery to the party himself without any words: and as a writing may take effect by actual delivery without words, so it may take effect by words without actual delivery; as if a writing is sealed and it lies in a window, or upon a table, and the obligor saith to the obligee, "see there's the writing, take it as my deed" and he takes it accordingly it is a good Remainder to an unborn son of an unborn son i pass : delivery in law in the same manner as if one makes a charter of feoff- Point grase As to the second point, first it was clearly resolved, that the delivery Paint it is severed is not parcel of the land, and when the feoffor is upon the land, his words without any act are sufficient to make livery of seisin ; as if he saith, "I deliver seisin of this land to you in the name of all the land contained in this deed; or, "Enter you into this land, and take seisin of it in the name of all the land contained in this deed," or such other words, without any ceremony or act done; and that is the reason that the delivery of any thing upon the land in the name of seisin is sufficient, because his words alone without anything were sufficient; for if words alone out of the land which is within the view are sufficient in law, a fortiori when they are spoke upon the land itself; and yet it is not wisely done to omit usua. ceremonies and acts in such cases, for they imprint a better remembrance of the thing which is done, because they are subject to sight, than words alone, which are only heard, and which easily and usually slip out of memory: wherefore it was resolved, that the delivery of the deed upon the land in the name of seisin was sufficient in law. And the said case of Sharp was affirmed for good law in this case. (3. It was resolved, that this delivery of the writing amounted to two several acts at one and the same instant, viz. to deliver the writing as a deed, and to deliver seisin of the land according to the deed. SECTION IV. GRANT AND ATTORNMENT. Co. LIT. 172 a. "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.1 1 "The division of hereditaments into corporeal and incorporeal, though deeply rooted in our legal phraseology, is most unfortunate and misleading. The confusion is inherited from the Roman lawyers (see Justinian, Inst. ii. tit. 2), but has been made worse confounded by our own authorities. The Romans, misled by the double sense of res, unhappily distinguished res corporales and res incorporales, the former being things quæ tangi possunt, veluti aurum, vestis, the latter mere rights, quæ in jure consistunt. It is obvious that this is mere confusion, the two ideas not being in pari materia, or capable of being brought under one class, or of forming opposite members of a division. Following the Romans, our lawyers distinguished between hereditaments as meaning the actual corporeal land itself, and another kind of hereditaments as not being the land itself, but 'the rights annexed to or issuing out of the land.' A moment's reflection is sufficient to show that the distinction is untenable. The lawyer has nothing whatever to do with the material corporeal land, except so far as it is the subject of rights. It is the distinction between different classes of rights, and not between land on the one side and rights on the other, that he is concerned with. In such phrases as the land descends to the heir,' what is meant is, not that something happens to the land itself, but that a particular class of the ancestor's rights in relation to the land descends to the heir. The names corporeal and incorporeal' are most un |