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abeyance or uncertainty until the condition happened or the person became ascertained. Such a limitation was good and might remain in uncertainty so long as the particular estate continued, as it was supported by the seisin of that estate. But it was essential that it should have become certain and absolute at the time when the particular estate determined ; and if not then ascertained, so as to be capable of taking up the scisin, it failed altogether, and the next estate in remainder took immediate effect.
A remainder limited to an uncertain person or upon an uncertain condition, and so long as the uncertainty lasted, became known as a contingent remainder. A remainder limited absolutely and to a determinate person, or which had become absolute and certain in ownership by subsequent events was a vested remainder; the remainderman was presently invested with a portion of the seisin or freehold.
Lit. $ 324. Also, when a man will show a feoffment made to him, or a gist in tail, or a lease for life of any lands or tenements, there he shall say, by force of which feoffment gift, or lease, he was seised, &c. but where one will plead a lease or grant made to him of a chattel real or personal, then he shall say, by force of which he was possessed, &c.
Co. Lit. 200 b, 201 a. “ He was seised, &c." Seisin is a word of art, and in pleading is only applied to a freehold at least, as possessed for distinction sake is to a chattel real or personal. As if B. plead a feoffment in fee, he concludeth, virtute cujus prædicť. B. fuit seisitus,
, &c. But if he plead a lease for yeares, he pleadeth, virtute cujus prædictus B. intravit, et fuit inde possessionatus, and so of chattels personals, virtute cujus fuit inde possessionatus.
And this holdeth not only in case of lands or tenements which lie in livery, but also of rents, advowsons, commons, &c. and other things that lie in grant, whereof a man hath an estate for life or inheritance.
Also when a man pleads a lease for life, or any higher estate which passeth by livery, he is not to plead any entry, for he is in actual seisin by the livery itself. Otherwise it is of a lease for years, because there he is not actually possessed until an entry.
Lit. & 647. Also, if a parson of a church dieth, now the freehold of the glebe of the parsonage is in none during the time that the parsonage is void, but in abeyance, viz. in consideration and in the understanding of the law, until another be made parson of the same church ; and immediately when another is made parson, the freehold in deed is in him as successor.
1 Co. Lit. 342 b; 378 a ; Perkins, $$ 52, 87. “If a man seised of land, lease it to a stranger for life, and grants the remainder over to the right heir of J. S., which J. S. is then alive ; in that case the fee is in abeyance, viz., in the consideration of the law, and is in no certain person.” Ih. $ 708. Fearne C. R. 3, 281, 307; “It is a general rule, that every remainder must vest, either during the particular estate, or else at the very instant of its determination." Ib. 307. A contingent remainder, as putting the freehold in abeyance, seems to have been originally regarded as an infringement of feudal principles, and is said not to have been fully recognized until the reign of Henry VI. See Williams, Real Prop. 243, 7th ed.
DESCENT AND PURCHASE.
Lit. § 12. Also, purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors, or of his cousins, but hs his own deed.
Co. LIT. 18 b. A purchase is always intended by title, and most properly by some kind of conveyance, either for money or some other consideration, or freely of gift; for that is in law also a purchase. But a descent, because it cometh merely by act of law, is not said to be a purchase ; and accordingly the makers of the Act of Parliament in 1 H. 5, ca. 5, speak of them that have lands or tenements by purchase or descent of inheritance. And so it is of an escheat or the like, because the inheritance is cast upon, or a title vested in the lord by act in law, and not by his own deed or agreement, as our author here saith. Like law of the state of tenant by the curtesy, tenant in dower, or the like. But such as attain to lands by mere injury or wrong, as by disseisin, intrusion, abatement, usurpation, &c. cannot be said to come in by purchase, no more than robbery, burglary, piracy, or the like, can justly be termed purchase.
LIVERY OF SEISIN.
LIT. $ 59. And it is to be understood, that in a lease for years, by deed or without deed, there needs no livery of seisin to be made to the lessee, but he may enter when he will by force of the same lease. But of feoffments made in the country, or gists in tail, or lease for term of life; in such cases where a freehold shall pass, if it be by deed or without deed, it behooveth to have livery of seisin.
Co. Lit. 48 a, b. And there be two kinds of livery of seisin, viz. a livery in deed, and a livery in law. A livery in deed is when the feoffor taketh the ring of the door, or turf or twig of the land, and delivereth the same upon the land to the feoffee in name of seisin of the land, &c. per hostium et per haspam et annulum vel per fustem vel baculum, &c.
A livery in law is, when the feoffor saith to the feoffee, being in the view of the house or land, “I give you yonder land to you and your heirs, and go, enter into the same, and take possession thereof accordingly,” and the feoffee doth accordingly in the life of the feoffor enter, this is a good feoffment, for signatio pro traditione habetur. And herewith agreeth Bracton: Item dici poterit et assignari, quando res vendita vel donata sit in conspectu, quam venditor et donator dicit se tradere : and in another place he saith, in seisina per effectum et per aspectum. But if either feoffor or the feoffee die before entry the livery is void. And livery within the view is good where there is no deed of feoffment. And such a livery is good albeit the land lie in another county. A man may have an inheritance in an upper chamber, though the lower buildings and soil be in another, and seeing it is an inheritance corporeal it shall pass by livery.
Lit. $ 60. But if a man letteth lands or tenements by deed or without deed for term of years, the remainder over to another for life, or in tail, or in fee; in this case it behooveth, that the lessor maketh livery of seisin to the lessee for years, otherwise nothing passeth to them in the remainder, although that the lessee enter into the tenements. And if the termor in this case entereth before any livery of seisin made to him, then is the freehold and also the reversion in the lessor. But if he maketh livery of seisin to the lessee, then is the freehold together with the fee to them in the remainder, according to the form of the grant and the will of the lessor.
KING'S BENCH. 1612.
(Reported 9 Co. 136.] It was found by office in the county of Cambridge, 21 Jan. anno 36 Eliz. by force of a writ of Diem clausit extremum after the death of Robert Thoroughgood, that he was seised in fee of an house, &c. and divers lands and tenements in Tadlowe in the county aforesaid, and that the said house, &c. was held of the King in chief by knight's service; and he being thereof so seised fecit & sigillavit in dicto messuagio quoddam scriptum indentatum, in hæc verba : To all Christian people, &c. Robert Thoroughgood sendeth greeting, &c. Know ye, that I the said Robert for divers good causes, &c. have given, granted, and enfeoffed, and by these presents do give, grant, enfeoff, and confirm to Henry Hutton and Edward Eliot all that my capital messuage, &c. lands and tenements, &c. habendum unto the said Henry Hutton, and Edward Eliot, and their heirs, &c. dať 18 Julii anno 35 Eliz. Et ulterius dicunt, quod prved Robert jacens in extremis deliberavit in præed messuagio præd' 18 Julii scriptum præd' indentatum prajutis Henrico Hutton & Elwardo Eliot pro et in nomine seisinæ præd messuagii & omnium residuorum terrarum & tenementorum indicto scripto indentato contentorum : and further found the other points of the writ. And upon this case two questions were moved; 1. If in this case the jury have found a sufficient delivery of the indenture to make it a deed in law. 2. If this delivery of the indenture in the house, in the name of seisin of the house, and of the residue of the lands and tenements aforesaid, was a sufficient livery of seisin in law, or not. As to the first, it was resolved, that the actual delivery of a writing sealed to the party, without any words, is a good delivery; for in traditionibus scriptorum non quod dictum est, sed quod gestum est inspicitur : but here he saith, " I deliver this writing to you,” which clearly is sufficient, although he doth not say, as his deed or as his act. And therefore if A. makes a writing to B. and seals it, and delivers it to B. as an escrow, to take effect as his deed when certain conditions are performed, it has been adjudged to be immediately his deed, for the law respects the delivery to the party himself, and rejects the words which will make the express delivery to the party, upon the matter no delivery. And therefore in Mich. 12 H. 8. Rot. 751. in Banco, Anne Quilter, late wife of John Quilter, and others, executors of the will of the said John Quilter, brought an action of debt against Edward Cobham on a bond, &c. the defendant pleaded that he delivered the bond to the testator as a schedule, upon condition if the plaintiff made indentures between the defendant ex una parte, & præfut testator' ex altera parte, de certis conditionib', convenť & ugreamenť inter easd' partes adtunc concord', &c. pro adnullatione præd' script obligať, &c. ante festum Mich' Archang' deliberand quod extunc præd' scripť obligator' in omni suo robore staret, sin aliter, vacua foret : et id' defendens dicit quod præd' testať non fecit aliquam indent &c. & sic id defendens dicit quod script præl in forma præd deliberať dictis indent' inter easd partes minime confectis non est factum suum, et hoc, &c. Judgment if action? And thereupon the plaintiff demurred in law, and it was resolved, that the said delivery was good in law, although the condition was not performed, and the plaintiffs had judgment to recover. And Tr. 13 H. 8. Rot. 405 in Banco, between T. Bodenham, Esq. plaintiff and Ed. Mermion Clerk, defendant in debt on a bond the like plea pleaded, and a demurrer upon it, and judgment given for the plaintiff which judgments (upon search which I commanded to be made) I have seen. And therewith agrees the report of 19 H. 8. 8. a. and takes the difference when it is so delivered to the party himself, and when to a stranger, as it was there agreed, 35 Ass. p. 6. a writing may take effect by actual delivery to the party himself without any words: and as a writing may take effect by actual delivery without words, so it may take effect by words without actual delivery; as if a writing is sealed and it lies in a window, or upon a table, and the obligor saith to the obligee, “ see there's the writing, take it as my deed” and he takes it accordingly it is a good delivery in law : in the same manner as if one makes a charter of feoffment, and within the view of his land saith to another, see you the land, enter into it and enjoy it according to the form and effect of this charter,” and the feoffee enters, it amounts to a good livery of seisin of the land : and if words in such case shall amount to a livery of seisin, by which a freehold shall pass, a fortiori words shall amount to a delivery of a deed ; wherefore it was concluded a fortiori in the case at bar, when Robert Thoroughgood delivered the writing to the parties, saying, “ here I deliver you this writing,” it is a good delivery thereof to take effect as a deed: vide 33 Ass. 2. 33 E. 3. Assise 367. 43 E. 3. 28. 13 E. 4. 8. 8 H. 6. 26. 9 H. 6. 37 & 59. vide 4 H. 6. 5. If the obligor delivers the bond to the obligee to re-deliver to him, the obligee may detain the bond for ever, and these words to re-deliver to him are void. Vide 29 H. 8. 34 & 35 Dyer, & Trin. 43 El. between Flawkston and Catcher in B. R. where some opinions ex improviso were conceired, that the obligor might deliver a bond as an escrow to the obligee; but believe you the said judgments given upon demurrer in law in the point: wherefore as to the first point it was clearly resolved, that the said writing sealed took effect as a deed by the delivery aforesaid.
As to the second point, first it was clearly resolved, that the delivery of the deed upon the land, doth not amount to a livery, for it has another effect, sc. to take effect as a deed, as it is resolved in Sharp's Case, anno 42 El. in Com' Banco, reported by me in the sixth part of my reports, f. 26. and there it is well agreed, that to every livery of seisin there is requisite, either an act, which the law adjudges livery, or apt words which amount to it, and there the case of 43 E. 3. Feoffments & Faits 51 is cited, which is to this effect : in assise the recognitors found a special verdict, sc. that the plaintiff was seised of land in fee, and the tenant drew and engrossed a charter of feoffment of the land in view, &c. in the name of the plaintiff to the tenant himself and his heirs, and the tenant delivered the charter to the plaintiff, and prayed him to deliver seisin in the same land, and the plaintiff would not deliver seisin, but he delivered back the charter to the tenant upon the land, and the tenant kept himself in, and if the delivery of the charter upon the land was a sufficient livery of seisin, was the question, and there Kirton, Justice, said, if the plaintiff had spoke in this manner, when he delivered the charter to the tenant, 66 Sir, I deliver to you this charter in the name of seisin of all the lands and tenements contained in the charter," it had been a good delivery of seisin, but so he doth not do in this case, wherefore the court awarded that the plaintiff should recover seisin. And it was resolved, that although most properly livery of seisin is made by delivery of a twig or turf of the land itself, whereof livery of seisin is to be given ; and so it is good to be observed ; yet a delivery of a turf or twig growing upon other land ; of a piece of gold or silver, or other thing upon the land in the name of seisin is sutficient, for the turf or twig which grows upon the land, when