LIT. § 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 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 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.

Fit

for yrs. has

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 third 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 conusee 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 recov

eror shall distrain and avow without attornment.

A grant to the king, or by the king to another, is good without attornment, by his 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 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, Escidin and or otherwise nothing shall pass to such grantee by such deed. And if must allown in this case the tenant for years attorn to the grantee, then the freeto make good hold shall presently pass to the grantee by such attornment without any livery of seisin, &c. because if any livery of seisin, &c. should be or were needful to be made, then the tenant for years should be at for it ousts lessee the time of the livery of seisin ousted of his possession, which should be against reason, &c.

to reversioner

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

1 See Lit. §§ 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

ST. 4 ANNE (1705), c. 16, § 9. And be it further enacted by the 1705authority aforesaid, That from and after the said first day of Trinity term [1706], all grants or conveyances thereafter to be made, by fine. or otherwise, of any manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual, to all intents and purposes, without any attornment of the tenants of any such manors, or of the land out of which such rent shall be issuing, or of the particular tenants upon whose particular estates any such reversions or remainders shall and may be expectant or depending, as if their attornment had been had and made.1

This is the beginning Just I quement

Sect 1101 Cal. ande

DOE d. WERE v. COLE.

KING'S BENCH. 1827.

[Reported 7 B. & C. 243.]

EJECTMENT for the recovery of the moiety of certain lands and premiations puson ises, situate in the parishes of Loddiswell and Churstow, in the county d = devised of Devon. At the trial before Gaselee, J., at the last assizes for the were having banner county of Devon, the plaintiff had a verdict, subject to the opinion of this court on the following case : —

The lessors of the plaintiff made title under a deed of conveyance
from one Walter Prideaux, which recited, that he was indebted to them
in a sum of £3000, and that he had agreed to secure the same by de-
mising and assigning the premises thereinafter mentioned; that in pur-
suance of an agreement recited in the deed, and in consideration of 5s.,
he Prideaux did demise, lease, grant, assign, transfer, and set over,
direct, limit, and appoint unto R. Were, W. Were, and S. Were, as
trustees, their executors, administrators, and assigns, all that moiety
or half part of and in all that messuage, &c. lying and being in the
town of Kingsbridge, and therein particularly described, which said
premises were then in the tenure or occupation of the said Prideaux,
and the reversion, remainder, rents, issues, and profits thereof, and of
quarrelled with the particular tenant's estate or entereth into some part of the lands in
demise, or hath covenanted for recompense for non-attornment, there he utterly denieth
to enforce the attornment. Pasch, 21 Eliz. [1579] in Case of Philips and Doctor
Sandford." Cary, 5.

1 For similar statutes in the United States, see Stimson, Am. Stat. Law, § 2009.
"Formerly, in order to constitute a privity of estate between the purchaser of the
reversion and the lessee, so as to enable the former to maintain an action of debt for
rent, attornment was necessary. But by St. 4 Anne, c. 16, § 9, a grant of the rever-
sion is good and effectual without attornment. Moss v. Gallimore, 1 Doug. 279.
That statute having been passed long before the Revolution, and this provision being a
rule in amendment of the common law, we may probably consider it in force here.
Commonwealth v. Leach, 1 Mass. 61. But if otherwise, the rule itself is well established
on the authority of long usage, and its adaptation to the more simple tenures, which
were in use under our former government. Farley v. Thompson, 15 Mass. 25, 26." Per
SHAW, C. J., in Burden v. Thayer, 3 Met. 76, 78.

every part thereof; and also all that the moiety of and in all that capital messuage Barton Farm, and demesne lands called or commonly known by the name of Hatch Arundel, situate, lying, and being in the parishes of Loddiswell and Churstów, in the county of Devon; and which said last-mentioned premises were heretofore in the possession of one A. Rendell, and of the said W. Prideaux, and do contain in the whole by estimation 150 acres or thereabouts (be the same more or less), and are now in the possession of the said W. Prideaux and of Samuel Cole. The indenture then, after describing two other moieties or half parts undivided of a messuage and tenement, and of a barn situate in the parish of Lodiswell, in the possession of Joanna Saunders, proceeded as follows: "and all houses, outhouses, &c. profits, &c. hereditaments and appurtenances whatsoever to the said moieties belonging, and the reversion and reversions, remainder and remainders, rents, suits, and services thereof, and of every part thereof, and all the estate, right, title, interest, term and terms of years, use, trust, property, claim, and demand whatsoever of him, W. Prideaux, his heirs or assigns, either in law or equity, of, into, or out of the same or any part thereof, to have and to hold the said moiety, or half part of the said messuage, tenement, or dwelling-house in Kingsbridge, with the appurtenances, unto the said R. Were, W. Were, and S. Were, their executors, administrators, and assigns, from the date of the indenture, for and during, and unto the full end and term of 2000 years thence next ensuing, and fully to be complete and ended, yielding and paying, therefore, yearly and every year during the said term, unto him, W. Prideaux, his heirs or assigns, the rent of one pepper corn if the same should be lawfully demanded; and to have and to hold all and singular the several moieties or half parts hereby demised and assigned, or mentioned, or intended so to be, situate, lying and being in the several parishes of Loddiswell and Churstow, with their, and each and every of their several and respective rights, members, and appurtenances unto the said R. W., W. W., and S. W., their executors, from the day of the date thereof, for and during all the natural life of the said W. Prideaux without impeachment of waste."

The trusts as to all the premises were declared to be for sale, when R. W., W. W., and S. W. should think proper. There were covenants by W. Prideaux, that he had full power to convey the same, and a right of entry given to R. W., W. W., and S. W. This indenture was duly executed by W. Prideaux at the time of its date, no livery of seisin was indorsed on it, and no evidence was offered that any had in fact been made. The defendant, Samuel Cole, before and at the time of the execution of this indenture, was tenant from year to year to W. Prideaux of part of the lands and premises comprised in the deed, and therein described as being situate in the parishes of Loddis well and Churstow.

After the execution of this indenture, viz. in October 1825, W. Prideaux became a bankrupt, and the defendant, S. Cole, having disclaimed

to hold under the lessors of the plaintiff, defended this action of ejectment under an indemnity from the assignees of W. Prideaux.

Follett for the lessors of the plaintiff. The question in this case is, whether the deed was sufficient, without livery of seisin, to pass the estate in the lands in the parish of Loddis well to the lessors of the plaintiff for the life of the grantor. The lessor of the plaintiff had a reversion expectant on the determination of Cole's tenancy, and that will pass by the word grant without livery. It is true, that in order to pass a freehold interest in possession, livery of seisin is essential, unless the conveyance takes effect under the statute of uses; but a reversion expectant on an estate of freehold, or for years, passed by grant with the attornment of the tenant before the statute of the 4 Anne, c. 16, § 9. Co. Lit. 49 a; 2 Bl. Com. 317; Shepherd's Touchstone, 210, 288; 1 Saund. 232, n. 3; Bacon's Abridgment, Lease N. And if it so passed then, it will, since the statute, pass by grant without the attornment of the tenant. It may, perhaps, be said, that although a reversion expectant on the determination of a freehold term would pass by the deed, yet that this being a reversion expectant on the determination of a term for years, it will not pass; but Littleton, §§ 567, 568, and Lord Coke's Comment on the latter section, and Littleton, § 572 shew, that there is no distinction in this respect between a reversion expectant on the determination of a freehold term, and one expectant on the determination of a term for years. A tenancy from year to year is a term for years. Botting v. Martin, 1 Campb. 317. Assuming that the deed was not intended to pass the reversion, it was clearly intended to pass the land; and if the words in the deed are sufficient for that purpose, the court will give effect to the intent. Roe v. Tranmer, 2 Wils. 75; Haggerston v. Hanbury, 5 B. & C. 101. Coleridge, contra. It must be conceded, that a person seised of a freehold, of which a lessee for years is in possession, may transfer his reversionary interest by deed without livery of seisin. But here, Walter Prideaux was in possession of some part of the premises intended to be conveyed, and those will not pass by this deed. This action is brought to recover those premises, of which Cole, at the time when the deed was executed, was in possession. The deed does not profess to grant the reversion of any premises; it describes the premises sought to be recovered, as being in the possession of Walter Prideaux and of Samuel Cole. It is clear, therefore, that it was the intention of the parties that an immediate possession of the lands, and not the mere reversion of them, should pass. It is a presumption of law, resulting from the deed, that Prideaux and Cole were joint-tenants of the estate; and then the possession of one would be the possession of both. Now if a grantor and his tenant are in possession of an estate, and the deed of grant does not point out what part was in his own possession, and what in that of the tenant, but professes to pass an immediate freehold, the one will not pass without livery of seisin, and the other will not pass, because it was not the intention of the grantor.