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Henrico Hutton & Edwardo Eliot pro et in nomine seisince prod 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 necessargeo
+ make it a deed in law. 2. If this delivery of the indenture in the
Thouse, in the name of seisin of the house, and of the residue of the 7 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, & præfať testator' ex altera parte, de certis conditionib', convenť & agreamenť inter easd' partes adtunc concord', &c. pro adnullatione præď scripť obligať, &c. ante festum Mich Archang' deliberand' quod extunc præd'scripť obligator' in omni suo robore staret, sin aliter, vacua foret : et id defendens dicit quod præd' testať non fecit aliquam indenť &c. & sic id defendens dicit quod script præd in forma præd' deliberať dictis indenť 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 plaintiff's 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 unbem son of an unbom son, ooremate astean, lawte pacothad estali
delivery in law : in the same manner as if one makes a charter of feoff-
As to the second point, first it was clearly resolved, that the delivery Pae
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.)
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 con. sistunt. 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 mo. ment'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 be. tween 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.
Lir. $ 551. Attornment is, as if there be lord and tenant, and the lord will grant by his deed the services of his tenant to 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, 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 do agree by word to the said grant, as to say to the grantee, I agree to the grant made to you, &c. or I am well content with the grant made to you; but the most common attornment is, to say, Sir, I attorn to you by force of the said grant, or I become your tenant, &c. or to deliver to the grantee a penny, or a halfpenny, or a farthing, by way of attornment.
Co. Lit. 309 a, b. Attornment is an agreement of the tenant to the grant of the seigniory, 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 : Item videndum est si dominus attornare possit alicui homagium et servitium tenentis sui contra voluntatem ipsius tenentis, et videtur quod non.
And the reason why an attornment is requisite, is yielded in old books to be, Si dominus attornare possit servitium tenentis contra voluntatem tenentis, tale sequeretur inconveniens, quod possit eum subjugare capitali inimico suo, et per quod teneretur sacramentum fidelitatis facere ei qui eum damnificare intenderet.
" The tenant must attorn to the grantee in the life of the grantor, &c.” And so must be 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 seigniory, rent, reversion, or remainder descend to his heir; and therefore after his decease the attornment cometh too late: 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.
But if the grant were by fine, then albeit the conusor or conusee dieth, yet the grant is good. For by fine levied the state doth pass to fortunate, because if by 'corporeal' is meant 'relating to land,' then a large class of incorporeal hereditaments are also entitled to the name ; if by 'incorporeal' is meant that they are mere rights, then all hereditaments are incorporeal, because the lawyer is only concerned with different classes of rights. In reality, however, it appears that the names point to different classes of rights; and in fact, Stephen in his edition of Blackstone, 5th ed., vol. i. p. 656, almost confines incorporeal hereditaments to jura in alieno solo. See Austin, vol. ii. pp. 707, 708.” Digby, Hist. Real Prop., App. to Part I. (11) note.
the conusee and his heirs; and the attornment to the conusee or his heirs at any time to make privity to distrain is sufficient. But all this is to be taken as Littleton understood it, viz. of such grants as have their operation by the common law. For since Littleton wrote, if a fine be levied of a seigniory, &c. to another to the use of a chird person and his heirs, he and his heirs shall distrain without any attornment, because he is in by the Statute of 27 H. 8, cap. 10, by transferring of the state to the use, and so he is in by act in law.
And so it is, and for the same cause, if a man at this day by deed indented and enrolled according to the Statute, bargaineth and selleth a seigniory, &c. to another, the seigniory shall pass to him without any attornment; and so it is of a rent, a reversion, and a remainder. So as the law is much changed, and the ancient privilege of tenants, donees, and lessees much altered concerning attornments since Littleton wrote.
But if the conusce of a fine before any attornment by deed indented and enrolled, bargaineth and selleth the seigniory to another, the bargainee shall not distrain, because the bargainor could not distrain. Et sic de similibus ; for nemo potest plus juris ad alium transferre quam ipse habet. Vide Sect. 149, where upon a recovery, the recoveror shall distrain and avow without attornment.
A grant to the king, or by the king to another, is good without attornment, by bis prerogative. ? Lit. $$ 567-569. Also, if a man letteth tenements for term of
years, by force of which lease the lessee is seised, and after the lessor e by his deed grant the reversion to another for term of life, or in tail, • or in fee; it behooveth in such case that the tenant for years attorn,
or otherwise nothing shall pass to such grantee by such deed. And if must all
in this case the tenant for years attorn to the grantee, then the freeto reversioner
hold shall presently pass to the grantee by such attornment without u .,any livery of seisin, &c. because if any livery of seisin, &c. should be
m in or were needful to be made, then the tenant for years should be at ouslt lessee the time of the livery of seisin ousted of his possession, which should
be against reason, &c.
Also, if tenements be letten to a man for term of life, or given in tail, saving the reversion, &c. if he in the reversion in such case grant the reversion to another by his deed, it behooveth that the tenant of the land attorn to the grantee in the life of the grantor, or otherwise the grant is void.
In the same manner is it, if land be granted in tail, or let to a man for term of life, the remainder to another in fee, if he in the remainder will grant this remainder to another, &c. if the tenant of the land attorn in the life of the grantor, then the grant of such a remainder is good or otherwise not."
1 See Lit. SS 579 et seq. “Sir Will. Cordall, Mr. of the Rols (1557–1581), denied to compell one to attorn here that was at liberty by the common law, in the Case of Sir John Windham.
“Chancellor Bromely likewise denied such compulsion generally, but where the party