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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.

Plowd, 302. 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.

9. Where the lands comprised in a feoffment are Lit. 8 61. all situated in the same county, though in different

Perk. $226-7. 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.

Grant, 32. seisin in one of the counties will be sufficient. 10. Livery of seisin is of two kinds ; livery in Livery in

Deed, deed and livery in law. Livery in deed is the actual

1 Inst. 48 a. 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

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.

upon

Thorough- 11. If a man merely delivers a deed of feoffment good's Case, 9 Rep. 136.

on the land, this will not amount to livery of seisin ; Vaughan v. for it has another operation, to take effect as a deed : Holdes, Cro. Ja. 80. 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. Bettisworth's 12. As livery of seisin is the delivery of the actual Case, 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 lesseéto give up the possession fora moment

to the feoffor, in order to enable him to give livery. LiveryinLaw. 13. Livery in law is, where the feoffor is not 1 Inst. 48 b.

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.

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 Parson v.

feoffee die before an entry is made, under the livery Petit. 1 Mod. 91. thus given, it becomes void. 1 Inst. 48 b. 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.

16. Livery of seisin may be given and received by May be by attorney. But the authority to give or receive livery

Attorney.

Lit. & 66. must be by deed, in order that it may appear to the 1 Inst. 52 a. Court that the attorney had a power to represent the parties; and that the power was properly pursued.

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 some 18. Courts of law and equity will presume livery sumed of seisin to have been made, though not indorsed on Plowd. 149.

Jackson v. the deed, where the possession has gone according to Jackson, the feoffment for a great length of time.

Fitzg. 146. 19. A court of equity will supply the defect of And supplied

in Equity 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 i Vem. 46. 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. Burgh v. It was decreed, that the defendant should execute Francis,

Tit. 15. c. 5. livery of seisin to the same deed.

$ 19. 21. A feoffment cannot be made to commence in a Feoffment futuro; so that if a person makes a feoffment, to commence on a future day, and delivers seisin imme, futuro. diately, the livery is void, and nothing more than 1 Inst, 217 a.

times pre

cannot commence in

Lit. $ 60.

Norris v.
Frist,
2 Mod. 78.

an estate at will passes to the feoffee. This doctrine is founded on two grounds: first, because the object and design of the ceremony of livery of seisin would fail, if it were allowed to pass an estate which was to commence in futuro; as it would in that case be no evidence of the change of possession. Secondly, the freehold would be in abeyance, which, we have seen, is never allowed, where it can be avoided.

22. An estate may, however, be created by feoffment, to commence in futuro, by way of remainder. As where a lease is made to A. for three years, remainder to B. in fee. Here livery of seisin must be given to A., by which an estate of freehold is immediately created, and vested in B. during the continuance of A.'s estate for years.

23. A deed of feoffment was made to three persons, habendum to two of them for their lives, remainder to the third for his life. Livery of seisin was made to all three, secundum formam chartæ. The Court was of opinion, that the livery was good to two in possession, and to the third in remainder.

24. All those who are capable of transferring their lands by deed may

make a feoffment; and some persons may bind themselves to a certain degree by feoffment, though not by any other kind of deed.

25. Thus, if an idiot or lunatic makes a feoffment, and gives livery of seisin in person, it will bind him ; so that he cannot by any process at law avoid it. The reason is, because the livery being formerly made before the pares curiæ, their solemn attestation of the change of possession, could not be defeated by the person himself; it being presumed that they were competent judges of the feoffor's ability to make the feoffment.

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26. If an infant makes a feoffment, and gives livery Idem. of seisin in person, it is not void, but only voidable. Perk. $ 12. For there must be some act of notoriety to restore the possession to him, equal to that by which it was transferred.

27. It has been stated that a feoffment by an infant, Tit. 30. an idiot, or a lunatic, will bar the lord of his escheat. For though it may be avoided by the heir of the infant, idiot, or lunatic, because he is privy in blood ; yét it 4 Rep. 124 a. cannot be avoided by a person who is only privy in 8

- 42. estate.

28. But if an infant, idiot, or lunatic, executes & Idem. feoffment, and a power of attorney to give livery of seisin, and livery is given accordingly, the whole is void; because the power of attorney is void.

29. A corporation, whether sole or aggregate, may convey by feoffment, and appoint an attorney to give livery; and it being now understood that a corporation cannot be seised to a use, a feoffment is frequently used by corporations to create a freehold estate."

30. A feoffment can only be made of corporeal What Kind hereditaments, of which the actual possession may be of Property. delivered to the feoffee. Therefore corporeal hereditaments are frequently spoken of in law, by the name of things that lie in livery.

31. One joint tenant cannot enfeoff his companion, Perk. $ 193.7. for each of them being seised per mie et per tout, is Tit. 18. c. i. in possession of the whole : so that one cannot make livery to the other. But one tenant in common or Tit. 19 & 20. coparcener may make a feoffment of his share of the land to his companion; these having, for most purposes, distinct freeholds.

i lnst. 9 a.

2 Inst. 244.

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