Lit. 61. 418. 7. 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 Bro. Ab. Grant, manor; for there, livery of seisin in one of the counties will be sufficient. 32. Livery in deed. 1 Inst. 48 a. Thoroughgood's care, 9 Rep. 136. Vaughan Ja. 80. 8. Livery of seisin is of two kinds; 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 limitation of the estate; and then the words spoken by the feoffor on the land, are a sufficient indication to the persons present, of the change of possession. 9. If a man merely delivers a deed of feoffment on the land, this will not amount to livery of seisin; for 7. Holdes, Cro. 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. Bettisworth's 10. 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 lessee to give up the possession for a moment to the feoffor, in order to enable him to give livery. 1 Inst. 48, b. 11. Livery in law is, where the feoffor is not actually Livery in law, on the land, or in the house, but being within 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 of the whole might be taken; and the pares curia could distinguish the land that was to be transferred. 12. Livery in law does not, however, transfer the Idem. 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 Parson v. Petit, before an entry is made, under the livery thus given, it becomes void. 1 Mod. 91. 13. If, in a case of this kind, the feoffee dare not 1 Inst. 48. b. 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. torney. 14. Livery of seisin may be given and received by May be by atattorney. But the authority to give or receive livery Lt. 66. 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 Roe v. Rashpursued. leigh, 3. Barn. & Ald. 156.. 15. Livery of seisin under a power of attorney must 1 Inst. 52. a. 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. 16. A memorandum that livery of seisin was given, Sometimes preis usually endorsed on all ancient feoffments, But sumed. Plowd. 149. Jackson v. Jack 1 Vern. 196. Courts of law and equity will presume livery of seisin son, Fitzg. 146. to have been given, though not endorsed on the deed, where the possession has gone, according to the feoffment, for a length of time. And supplied in equity. Thompson v. 40. 17. A Court of equity will supply the want of livery of seisin, where a feoffment appears to have been made for a good, or a valuable consideration. 18. Thus, where the deed under which the plaintiff Atfield, 1 Vern. 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 Burgh v. Fran- made on such valuable consideration as marriage; it was decreed, that the defendant should execute livery of seisin to the same deed. cis, Tit. 15. c. 5. § 19. A feoffment can 19. A feoffment cannot be made to commence in not commence futuro; so that if a person makes a feoffment to com in futuro. Tit. 1. Lit, § 60. Norris v. Frist, 2 Mod. 78. mence on a future day, and delivers seisin immediately, the livery is void, and nothing more than an estate at will passes to the feoffee. This doctrine is founded on two grounds: first, because the object and design 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, when it can be avoided. 20. 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. 21. 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, Freeman v. and to the third in remainder. West, 2 Wils. vey by feoff 22. All those who are capable of conveying their Who may conlands by deed may make a feoffment; and some per- ment. sons may bind themselves to a certain degree by a feoffment, though not by any other kind of deed. Thus if an idiot or a lunatic makes a feoffment, and gives Lit. § 406. livery of seisin in person, it will bind him, so that he cannot by any process of 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. Perk. 12. 23. If an infant makes a feoffment, and gives livery Idem. of seisin in person, it is not void, but only voidable; 4 Rep. 125: a. for there must be some act of notoriety to restore the possession to him, equal to that by which it was transferred. But if an infant idiot or lunatic executes a 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. 24. It has been stated that a feoffment by an infant, Tit.30. an idiot, or a lunatic, will bar the lord of his escheat. 4 Rep. 124. a. For though it may be avoided by the heir of the infant, the idiot or the lunatic, because he is privy in blood; yet it cannot be avoided by a person who is only privy in estate. 25. A corporation, whether sole or aggregate, may convey, by feoffment, and appoint an attorney to give livery. And it being now agreed that a corporation cannot be seised to a use, a feoffment is frequently used by corporations to create a freehold estate. 26. A feoffment can only be made of corporeal he- What kind of reditaments, of which the actual possession may be property. delivered to the feoffee; and therefore corporeal hereditaments are frequently spoken of in law by the name of things that lie in livery. Tit. 18. e. 1. 27. 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 Tit. 19 & 20. livery to the other. But one coparcener or tenant in common may make a feoffment of his share of the land to his companion; because for most purposes, these have distinct freeholds. Operation of a feoffment. 1 Inst. 9. a. 204. Transfers the freehold by disseisin. § 611. Lit. § 698. 28. The operation of a feoffment is in some instances stronger than that of any other conveyance. Thus, Lord Coke says, a feoffment cleareth all disseisins, 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. 29. 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." And 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 respects |