denied in a modern case, of which an account will be Taylor v. given hereafter. Horde, Tit. 36. c: 2. estate tail. Tit. 2. c. 2. 1 Inst. 327. b. 30. It has been stated that a feoffment by a tenant Discontinues an in tail, who is actually seised by force of the intail, creates a discontinuance of the estate tail; by transferring to the feoffee, not 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 of the reversioner, and to drive them to their real action. And creates a forfeiture. Tit. 3. c. 1. 31. It has also been stated that a feoffment in fee, by a tenant for life, will create a forfeiture of his estate; for it transfers the fee simple, and divests the estates in remainder, and the reversion. It is the Ti 8. c. 2. same of a tenant for years. 32. A gift, donatio, is properly applied to the creation of an estate tail; as a feoffment is to that of an estate in fee simple. It differs in nothing from a feoffment, but in the nature of the estate that passes by it, and livery of seisin must be given to the donee, to render it effectual. 33. A grant is a conveyance so far similar to a feoffment, that the operative words of it are 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, commons, rents, &c. lie in grant. Gift. Lit. $ 59. West. Symb. $254. Grant. 1 Inst. 9. a. 34. 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, accompanied with the attornment of the tenant, was as effectual as a feoffment with livery of seisin; and now the necessity of an Stat. 4 & 5. attornment is taken away. 35. Although a feoffment might formerly have been made by parol only, yet a grant could not in general be made without deed; because as the possession of Ann. c. 16, 1 Inst. 147. a. Holmes v. Sellers, 3 Lev. 305. What may be created or con veyed by grant. Perk. § 65. Tit. 16. c. 1. Goodtitle v. Bayley, infra, c. 19. Tit. 18, c. 1. those things which are the subject-matter of a grant could not be transferred by livery, there could be no other evidence of a grant but the deed. A 36. 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. Thus, where 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. 37. Grants are used to create incorporeal hereditaments, as in the preceding case, But a person cannot grant or charge that which he has not, at the time of the grant, though he acquire it afterwards. Thus, if a person grants a rent charge out of the manor of Dale, when in fact he has nothing in the manor, and he afterwards purchases it, he shall hold it discharged from the grant. 38. Manors, advowsons, rents, and all other incorporeal hereditaments, may be, and are often conveyed by grant, though a bare right or possibility cannot be granted. Estates in remainder or reversion, consisting in a vested right, may also be conveyed by grant. Thus Littleton says, (§ 567.) 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. And Lord Coke observes on this passage, that, seeing this grant of the reversion must be by deed, the freehold and inheritance do pass thereby, as well as by livery of seisin, if it were in possession: 39. Where a person is tenant for life, with remainder to his first and other sons in tail male, with the reversion in fee in himself; it is doubtful whether he can grant the reversion, as an interest distinct from his estate for life. grant. 40. The operation of a grant, by which any thing Operation of a already in existence is conveyed, is materially different from that of a feoffment; for a feoffment operates immediately on the possession, without any regard to the estate or interest of the feoffee; whereas a grant only operates on the estate or interest of the grantor, 1 Inst. 251. b. and will pass no more than what he is, by law, enabled to convey. 41. This rule probably arose from the circumstance, that a grant being always made by deed, the estate of the grantor might be known by inspection of the deed. If the estate granted was greater than the estate which the grantor had, it was merely void; and the grant only passed as much as the grantor could really give. And Lord Ch. B. Gilbert was of opinion Ten. 122. that the reason why a grant passes no more than what the grantor can lawfully pass, is, because it is a secret conveyance; therefore ought not to be allowed to have so extensive an operation as a feoffment, in which livery of seisin is given. a discontinu ance. 327. b. 42. A grant cannot in any case create a discon- Does not create tinuance, for every discontinuance works a wrong; whereas a grant only transfers what the grantor may 1 Inst. 322. a. lawfully give. Thus Lord Coke says, if tenant in tail of a rent service, or of a remainder or reversion in tail, grants the same in fee, and dies; this is no discontinuance to the issue in tail. 43. It follows from the same principle that a grant or a forfeiture can, in no instance, create a forfeiture. Thus if a 1 Inst.251.b. tenant for life, or years, of an advowson, rent, common, or of a remainder or reversion of land, grants the same in fee, this is no forfeiture, because nothing passes but that which lawfully may pass. Description of. A LEASE is a contract for the possession and profits of lands and tenements on the one side; and a recompense of rent, or other income, on the other. Or else it is a conveyance of lands and tenements to a person for life, for years, or at will, in consideration of a return of rent, or other recompense. Where a freehold estate is created by lease, livery of seisin must be given to the lessee. And where the lease is for a term of years, there must be an entry by the lessee. Tit. 8. c. 1. 1 Inst. 45. b. Tooker v. Cro. Ja. 172. Hall v. Seabright, 1 Mod. 14. 2. The words demise, lease, and to farm let, are the proper ones to constitute a lease. But any other words which show the intention of the parties, that one shall divest himself of the possession, and the other come into it, for a certain time, whether they run in the form of a licence, covenant, or agreement, are of themselves sufficient; and will, in construction of law, amount to a lease, as effectually as if the most proper words had been used for that purpose. Wise, Cro. 3. Articles in writing indented were made between Harrington v. A. and B. in these words: Imprimis, It is covenanted Eliz. 486. and agreed between the parties, that A. doth let the said lands, for and during five years, to begin at the Feast of Saint Michael next following: Provided always, that the said B. should pay to A. annually, during the term, 1207. Also the said parties do covenant that a lease shall be made and sealed according to the effect of these articles, before the Feast of All Saints next ensuing. The question was, whether this was an immediate lease, or only an agreement to have a lease made. All the judges held it to be a good lease. For the words, it is agreed that A. doth let, being in the present tense, was a good lease, by the words of the agreement; and that which followed was in reference to further assurance. 4. Articles were entered into between A. and B., by which A. covenanted, granted, and agreed that B. should have the land for six years; in consideration of this, B. covenanted to pay a yearly rent to A. Resolved, that this was a good lease. Drake v. Monday, Cro. Car. Tisdale v. Es 207. sex, Hob. 34. Browne, 5. Two persons entered into an agreement with Baxter v. one Brown, that they would, with all convenient. R. speed, grant him a lease of, and they did thereby set 973. and let to him, the premises in question; to hold for 21 years, at a certain rent, payable half-yearly to the lessors. The lease to contain the usual covenants, and certain special ones, in one of which the words this demise, occurred. The Court held that this was a good lease in præsenti, with an agreement to execute a more formal one. The operative words, let and set, were in the present tense; and a reference was made to this demise. • Executory agreements for leases of copyholds are construed differently on account of the forfeiture. Vide Tit. 10. c. 5. |