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Lit. § 60.

Norris v.
Frist,

2 Mod. 78.

Freeman v. West, 2 Wils. R. 166.

Who may

convey by Feoffment.

Lit. § 406.

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 charta. The Court was of opinion, that the livery was good to two in possession, and to the third in remainder.

may

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

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; yet it 4 Rep. 124 a. cannot be avoided by a person who is only privy in 8.

estate.

28. But if an infant, idiot, or lunatic, executes a 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.

42.

] Inst. 9 a.

30. A feoffiment 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.

Perk. § 193.7.
Tit. 18. c. 1.

2 Inst. 244.

31. One joint tenant cannot enfeoff his companion, for each of them being seised per mie et per tout, is 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 pur

poses, distinct freeholds.

Operation of a Feoffment.

204.

32. The operation of a feoffment is in some instances stronger than that of any other conveyance. 1 Inst. 9 a. Thus, Lord Coke says, a feoffment cleareth all desseisins, abatements, intrusions, and other wrongful or defeasible estates; where the entry of the feoffor is lawful which neither fine, recovery, nor bargain and sale by deed indented and enrolled, doth. And it is said in the Touchstone, that it passeth the present estate of the feoffor; and not only so, but barreth and excludeth him of all present and future right, and possibility of right, to the thing which is so conveyed: insomuch, that if one have divers estates, all of them pass by his feoffment; and if he have any interest, rent, common, or the like, in, to or out of the land, it is extinguished and gone by the feoffment.

Transfers the

Freehold by
Disseisin.

$ 611.

Lit. § 698.

2 fmst. 244.

Taylor v.
Horde,

Tit. 36. c. 2.

33. The most singular effect of a feoffment is, that it operates on the possession, without any regard to the estate or interest of the feoffor; so that, to make a feoffment good and valid, nothing is wanting but possession. Thus Littleton says-" Tenant for years may make a feoffment in fee, and by his feoffment the fee simple shall pass; and yet he had, at the time of the feoffment made, but an estate for term of years."

34. In Lord Coke's comment on this passage he says " Here it is implied that albeit the feoffment made by lessee for years, be a feoffment between the feoffor and feoffee; and that by this feoffment the fee simple passeth by force of the livery, yet it is a disseisin to the lessor."

The doctrine above stated, has been in some réspects denied in a modern case, of which an account will be given hereafter.

6

Tail.

Tit. 2. c. 2.

35. A feoffment by tenant in tail, who is actually Discontinues seised by force of the entail, creates a discontinuance an Estate of the estate tail; by transferring to the feoffee, not 1 Inst. 327 b. only the possession, but also the right of possession; so as to take away the entry of the issue in tail, as also of the persons in remainder and reversion; and to drive them to their real action.

36. It has been stated, that a feoffment in fee by Creates a a tenant for life will create a forfeiture of his estate.

For it transfers the fee simple, and devests the estates in remainder and reversion.

Forfeiture,
Tit. 3. c. 1.

37. A gift, donatio, is properly applied to the Of a Gift. creation of an estate tail; as a feoffment is to that West. Symb. Lit. § 59. of an estate in fee simple. It differs in nothing from § 254. a feoffment, but in the nature of the estate passing by it and livery of seisin must be given to render it effectual.

to

Of a Grant.

1 Inst. 9 a.

are

38. A grant is a conveyance so far similar a feoffiment, that the operative words of it dedi et concessi, given and granted, and as a feoffment was the regular mode of conveying corporeal hereditaments; so a grant was the proper mode of transferring incorporeal ones. Hence the expression that advowsons, rents, commons, &c. lie in grant.

172 a

39. As the objects of a grant are not capable of corporeal delivery, it follows that livery of seisin, cannot be given upon a grant. But still it has always been held that a grant, acccompanied with the attornment of the tenant, was as effectual as a feoffment with livery of seisin; and now the necessity of Stat. 4 & 5 an attornment is taken away.

40. Although a feoffment might formerly have been made by parol only, yet a grant could not in

Aun, c. 16.

1 Inst. 147 a.

Holmes v.
Sellers,

3 Lev. 305.

be

What may created or conveyed by Grant.

Perk. § 65.

Tit. 16. c. 1.

$9.

§ 567.

general be made without deed; because as the possession of those things which are the subjectmatter of a grant could not be tranferred by livery, there could be no other evidence of a grant but the deed.

41. The proper words of a grant are dedi et concessi, hath given and granted; but any other words that show the intention of the parties will have the same effect.

42. A. entered into an article with B., by which he granted and agreed, that in consideration of a certain rent, B. should have a way for himself and his heirs over certain lands of A. This was held to be a good grant of a right of way; not merely a covenant for enjoyment.

43. Grants are used to create an incorporeal here. ditament, as in the preceding case; but a person cannot grant or charge that which he hath not, at the time of the grant, though he acquire it afterwards. If, therefore, a man grants a rent charge out of the manor of Dale, when in truth he hath nothing in the manor; and he afterwards purchases it, he shall hold it discharged from the grant.

44. Manors, advowsons, rents, and all other incorporeal hereditaments, may be, and are often conveyed by grant; but a bare right or possibility cannot be granted.

45. Estates in remainder and reversion, consisting in right only, may be conveyed by grant. Thus Littleton says, if a man lets tenements for a term of years, by force of which lease the lessee is seised, the lessor may grant the reversion, by which the freehold will pass to the grantee, without livery of seisin. 1 Inst. 49 a. Lord Coke observes on this passage, that seeing this

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