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TITLE XXXII.

DEED.

CHAP. IV.

Of a Feoffment, Gift, and Grant.

1. Different Kinds of Deeds.

3. Of a Feoffment.

7. Livery of Seisin.

10. Livery in Deed.

13. Livery in Law.

16. May be by Attorney.

18. Livery sometimes presumed. 19. And supplied in Equity.

21. A Feoffment cannot commence

in futuro.

32. Operation of a Feoffment.
33. Transfers the Freehold by
Disseisin.

35. Discontinues an Estate Tail.
36. Creates a Forfeiture.

37. Of a Gift.

38. Of a Grant.

43. What may be created or con-
veyed by Grant.

47. Operation of a Grant..

24. Who may convey by Feoff. 50. Does not create a Discon

ment.

30. What Kind of Property.

tinuance,

51. Or a Forfeiture.

SECTION 1.

AVING discussed the general nature of deeds, Different

HAV

Deeds.

it will now be necessary to consider the several Kinds of kinds of deeds which are known to the law, together with their various incidents and qualities.

All deeds by which lands may be conveyed or charged, derive their effect either from the common law, or the statute of uses. Of those which derive their effect from the common law, some may be called original or primary, which are those by means whereof the estate is originally created: others are derivative. or secondary, whereby an estate, already created, is enlarged, restrained, transferred, or extinguished, There is a third class, which are used, not to convey,

Of a Feoffment.

1 Inst. 9 a.

ante, c. I. § 21.

Mad. Form.
Dissert. 4.

Denton's
Case,
2 And. 68.

Benicomb v.
Parker,

1 Leon. 25.
Livery of
Seisin.

but to charge or incumber lands, and to the discharge them again.

2. The original conveyances deriving their effect from the common law are, 1. A feoffment. 2. A gift. 3. A grant. 4. A lease. 5. An exchange. 6. A partition. The derivative conveyances are,

3. A surrender.

1. A release 2. A confirmation.
4. An assignment. 5. A defeazance. Deeds which
operate to charge or discharge lands are, 1. A bond.
2. A recognizance. S. A defeazance on a bond.

3. A feoffment, feoffamentum, is derived from the word feoffare, or infeudare; to give one a fief or feud; therefore a feoffment was properly called donatio feudi and Lord Coke says the ancient writers called a feoffment donatio, from the verb do or dedi, which is the aptest word of feoffment.

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4. A feoffment is evidently taken from the breve testatum of the feudal law. The proper and original meaning of the word feoffment was the gift of a feud; but by custom it came afterwards to signify a gift of a free inheritance, or liberum tenementum, to a man and his heirs; respect being had rather to the perpetuity of the estate granted, than to the tenure.

5. A charter or deed of feoffment must be sealed and delivered in the same manner as other deeds. The proper and usual words of a feoffment are, give, grant, and enfeoff; but any other words of equal import will be sufficient.

6. Thus where a bargain and sale was made to J. S. and his heirs, by deed indented, but not enrolled; and the bargainor made livery of the land, secundum formam charta: this was held a good feoffment.

7. The mere signing and sealing a deed of feoffment was in no instance sufficient to transfer an estate

1 Inst. 48 a. of freehold, unless the possession was formally deli

vered by the feoffor to the feoffee. This was called livery of seisin; without which a deed of feoffment only passed an estate at will; and the law continues the same in this respect.

8. Livery of seisin is exactly similar to the investiture of the feudal law; it was adopted here for the same reason, namely, that the proprietor of each piece of land should be publicly known; that the 5 Rep. 84b. lord might be always certain on whom he was to call for the military services due for the estate: and that strangers might know against whom they were to bring their præcipes.

Plowd. 302.

Lit. § 61.

418.

Perk. §226-7.

9. Where the lands comprised in a feoffment are all situated in the same county, though in different vills, or hundreds, livery of seisin of those within one vill, in the name of the whole, will be good: but where lands lie in different counties, there must be a livery in each county; unless they are all comprised within the same manor; for there, livery of Bro. Ab. seisin in one of the counties will be sufficient.

Grant, 32.

Deed,

1 Inst. 48 a.

10. Livery of seisin is of two kinds; livery in Livery in deed and livery in law. Livery in deed is the actual delivery of the possession; where the feoffor comes - himself upon the land, and taking the ring of the door of the principal mansion, or a turf, or a twig, delivers the same to the feoffee in the name of seisin; or it may be by words only, without the delivery of any thing. As if the feoffor be upon the land, or at the door of the house, and says to the feoffee, "I am content that you should enjoy this land according to the deed;" this is a good livery to pass

the freehold for the charter of feoffment makes the Sharp's Case, limitation of the estate; and then the words spoken 6 Rep. 26. by the feoffor on the land are a sufficient indication,

to the persons present, of the change of possession.

Thoroughgood's Case, 9 Rep. 136. Vaughan v. Holdes,

Cro. Ja. 80.

Bettisworth's

Case,

LiveryinLaw. 1 Inst. 48 b.

I1. If a man merely delivers a deed of feoffment on the land, this will not amount to livery of seisin ; for it has another operation, to take effect as a deed : but if the feoffor delivers the deed upon the land, in the name of seisin of all the lands contained in the deed, this will be a good livery.

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12. As livery of seisin is the delivery of the actual 2 Rep. 31. possession, it follows that no person can give livery in deed, who has not himself, at the moment, the actual possession; therefore where a person makes a feoffment of lands which are let on lease, he must obtain the assent of the lessee to the livery and in cases of this kind, the practice formerly was, for the lessee to give up the possession for a moment to the feoffor, in order to enable him to give livery. 13. Livery in law is, where the feoffor is not actually on the land, or in the house, but being in sight of it, says to the feoffee, "I give you yonder house or land, go and enter into the same, and take possession of it accordingly." This sort of livery appears to have been made at first only at the courts baron, which were then held in the open air, on some spot in the manor, from whence a general view might be taken of the whole; and the pares curiæ could distinguish the land that was to be transferred.

Idem.

Parson v.
Petit.

1 Mod. 91.

1 Inst. 48 b.

14. Livery in law does not, however, transfer the freehold, till an actual entry is made by the feoffee; because the possession is not delivered to him, but only a licence or power given him by the feoffor to take possession. Therefore, if either the feoffor or feoffee die before an entry is made, under the livery thus given, it becomes void.

15. If, in a case of this kind, the feoffee dare not enter on the land, without endangering his life, he

must claim the land as near as he may safely venture to go; which will be sufficient to vest the possession in him, and to render the livery in view perfect and complete, for no one is obliged to expose his life, for the security of his property.

Lit. § 66.

16. Livery of seisin may be given and received by May be by attorney. But the authority to give or receive livery Attorney. must be by deed, in order that it may appear to the Court that the attorney had a power to represent the parties; and that the power was properly pursued.

1 Inst. 52 a.

17. Livery of seisin under a power of attorney must Idem. be made during the lifetime of the feoffor; for the power ceases with his death and also during the life of the feoffee; for if he dies, livery cannot be made to his heir, because then he would take by purchase, where the word heirs was a word of limitation.

Livery sometimes pre

sumed. Plowd. 149.

18. Courts of law and equity will presume livery of seisin to have been made, though not indorsed on the deed, where the possession has gone according to Jackson,

the feoffment for a great length of time.

Jackson v.

Fitzg. 146. And supplied in Equity.

ivern. 40.

v. Atfield,

19. A court of equity will supply the defect of livery of seisin, where a feoffment appears to have been made for a good or a valuable consideration. 20. Thus, where the deed under which the plaintiff Thompson claimed appeared to have been fairly executed by the plaintiff's father; that there was no defect therein, save only the form of livery of seisin; and that it was made on such valuable consideration as marriage. It was decreed, that the defendant should execute livery of seisin to the same deed.

21. A feoffment cannot be made to commence in futuro; so that if a person makes a feoffment, to com

Burgh v. Francis,

Tit. 15. c. 5.

$ 19.

A Feoffment

cannot commence in

mence on a future day, and delivers seisin imme. futuro. diately, the livery is void, and nothing more than 1 Inst. 217 a.

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