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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 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 clude illegal 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.

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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

Free ceces 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.

LIT. § 60. But if a man letteth lands or tenements by deed or with- 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

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livery of seisin to the lessee for years, otherwise nothing passeth to years.

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.

[Reported 9 Co. 136.]

Robt. Thorough good made deed of evanager land to af

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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 livery

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

vice; and he being thereof so seised fecit & sigillavit in dicto messuagio quoddam scriptum indentatum, in hæc verba: To all Christian

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deed in name greisin people, &c. Robert Thoroughgood sendeth greeting, &c. Know ye, is good fassthat I the said Robert for divers good causes, &c. have given, granted, in scisin.

and enfeoffed, and by these presents do give, grant, enfeoff, and con- mere handing

is not gook!

firm to Henry Hutton and Edward Eliot all that my capital messuage, it
&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 præď' indentatum præfatis

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

say that it house, in the name of seisin of the house, and of the residue of the seiname f

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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 præď 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 præd' deliberat dictis indent' inter easd partes minime confectis non est fuctum 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

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an umbom son in the estates

THOROUGHGOOD'S CASE.

439

delivery in law in the same manner as if one makes a charter of feoff-
ment, and within the view of his land saith to another, 66 see you the
land, enter into it and enjoy it according to the form and effect of this
charter," and the feoffee enters, it amounts to a good livery of seisin of
the land and if words in such case shall amount to a livery of seisin,
by which a freehold shall pass, a fortiori words shall amount to a
delivery of a deed; wherefore it was concluded a fortiori in the case
at bar, when Robert Thoroughgood delivered the writing to the parties,
saying, "here I deliver you this writing," it is a good delivery thereof
to take effect as a deed: vide 33 Ass. 2. 33 E. 3. Assise 367. 43 E. 3.
28. 13 E. 4. 8. 8 H. 6. 26. 9 H. 6. 37 & 59. vide 4 H. 6. 5. If the
obligor delivers the bond to the obligee to re-deliver to him, the obligee
may detain the bond for ever, and these words to re-deliver to him are
void. Vide 29 H. 8. 34 & 35 Dyer, & Trin. 43 El. between Hawkston
and Catcher in B. R. where some opinions ex improviso were con-
ceived, that the obligor might deliver a bond as an escrow to the obli-
gee; but believe you the said judgments given upon demurrer in law
in the point wherefore as to the first point it was clearly resolved,
that the said writing sealed took effect as a deed by the delivery
aforesaid.

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As to the second point, first it was clearly resolved, that the delivery Paint fea of the deed upon the land, doth not amount to a livery, for it has another effect, sc. to take effect as a deed, as it is resolved in Sharp's Case, anno 42 El. in Com' Banco, reported by me in the sixth part of my reports, f. 26. and there it is well agreed, that to every livery of seisin there is requisite, either an act, which the law adjudges livery, or apt words which amount to it, and there the case of 43 E. 3. Feoffments & Faits 51 is cited, which is to this effect: in assise the recognitors found a special verdict, sc. that the plaintiff was seised of land in fee, and the tenant drew and engrossed a charter of feoffment of the land in view, &c. in the name of the plaintiff to the tenant himself and his heirs, and the tenant delivered the charter to the plaintiff, and prayed him to deliver seisin in the same land, and the plaintiff would not deliver seisin, but he delivered back the charter to the tenant upon the land, and the tenant kept himself in, and if the delivery of the charter upon the land was a sufficient livery of seisin, was the question, and there Kirton, Justice, said, if the plaintiff had spoke in this manner, when he delivered the charter to the tenant, "Sir, I deliver to you this charter in the name of seisin of all the lands and tenements contained in the charter," it had been a good delivery of seisin, but so he doth not do in this case, wherefore the court awarded that the plaintiff should recover seisin. And it was resolved, that although most properly livery of seisin is made by delivery of a twig or turf of the land itself, whereof livery of seisin is to be given; and so it is good to be observed; yet a delivery of a turf or twig growing upon other land; of a piece of gold or silver, or other thing upon the land in the name of seisin is sufficient, for the turf or twig which grows upon the land, when

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 hap pens 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

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