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it is severed is not parcel of the land, and when the feoffor is upon the
as if he saith, " I deliver seisin of this land to you in the name of all the land contained in this deed ;” or, “ Enter you into this land, and take seisin of it in the name of all the land contained in this deed," or such other words, without any ceremony or act done ; and that is the reason that the delivery of any thing upon the land in the name of
cient; for if words alone out of the land which is within the view are sufficient in law, a fortiori when they are spoke upon the land itself; and yet it is not wisely done to omit usua. ceremonies and acts in such cases, for they imprint a better remembrance of the thing which is done, because they are subject to sight, than words alone, which are
fore it was resolved, that the delivery of the deed upon the land in the name of seisin was sufficient in law. And the said case of Sharp was affirmed for good law in this case. 3. It was resolved, that this delivery of the writing amounted to two several acts at one and the same instant, viz. to deliver the writing as a deed, and to deliver seisin of the land according to the deed.
GRANT AND ATTORNMENT.
Co. Lit. 172 a. “Grant,” Concessio, is in the common law a conveyance of a thing that lies in grant and not in livery, which cannot pass without deed; as advowsons, services, rents, commons, reversions, and such like.1
1 “The division of hereditaments into corporeal and incorporeal, though deeply rooted in our legal phraseology, is most unfortunate and misleading. The confusion is inherited from the Roman lawyers (see Justinian, Inst. ii. tit. 2), but has been made worse confounded by our own authorities. The Romans, misled by the double sense of res, unhappily distinguished res corporales and res incorporales, the former being things quæ tangi possunt, veluti aurum, vcstis, the latter mere rights, quæ in jure con. sistunt. It is obvious that this is mere confusion, the two ideas not being in pari muteria, or capable of being brought under one class, or of forming opposite members of a division. Following the Romans, our lawyers distinguished between hereditaments as meaning the actual corporeal land itself, and another kind of hereditaments as not being the land itself, but the rights annexed to or issuing out of the land.' A moment's reflection is sufficient to show that the distinction is untenable. The lawyer has nothing whatever to do with the material corporeal land, except so far as it is the subject of rights. It is the distinction between different classes of rights, and not be. tween land on the one side and rights on the other, that he is concerned with. In such phrases as “the land descends to the heir,' what is meant is, not that something happens to the land itself, but that a particular class of the ancestor's rights in relation to the land descends to the heir. The names 'corporeal and incorporeal' are most un.
Lit. $ 551. Attornment is, as if there be lord and tenant, and the lord will grant by his deed the services of his tenant to another for term of years, or for term of life, or in tail, or in fee, the tenant must attorn to the grantee in the life of the grantor, by force and virtue of the grant, or otherwise the grant is void. And attornment is no other in effect, but when the tenant hath heard of the grant made by his lord, that the same tenant do agree by word to the said grant, as to say to the grantee, I agree to the grant made to you, &c. or I am well content with the grant made to you ; but the most common attornment is, to say, Sir, I attorn to you by force of the said grant, or I become your tenant, &c. or to deliver to the grantee a penny, or a halfpenny, or a farthing, by way of attornment.
Co. Lit. 309 a, b. Attornment is an agreement of the tenant to the grant of the seigniory, or of a rent, or of the donee in tail, or tenant for life or years, to a grant of a reversion or remainder made to another. It is an ancient word of art, and in the common law signifieth a torning or attorning from one to another. We use also attornamentum as a Latin word, and attornare to attorn. And so Bracton useth it: Item videndum est si dominus attornare possit alicui homugium et servitium tenentis sui contra voluntatem ipsius tenentis, et videtur quod non.
And the reason why an attornment is requisite, is yielded in old books to be, Si dominus attornare possit servitium tenentis contra voluntatem tenentis, tale sequeretur inconveniens, quod possit eum subjugare capitali inimico suo, et per quod teneretur sacramentum fidelitatis facere ei qui eum damnificure intenderet.
• The tenant must attorn to the grantee in the life of the grantor, &c.” And so must he also in the life of the grantee : and this is understood of a grant by deed. And the reason hereof is, for that every grant must take effect as to the substance thereof in the life both of the grantor and the grantee. And in this case if the grantor dieth before attornment, the seigniory, rent, reversion, or remainder descend to his heir; and therefore after his decease the attornment cometh too late: so likewise if the grantee dieth before attornment, an attornment to the heir is void, for nothing descended to him: and if he should take, he should take it as a purchaser, where the heirs were added but as words of limitation of the estate, and not to take as purchasers. · But if the grant were by fine, then albeit the conusor or conusee dieth, yet the grant is good. For by fine levied the state doth pass to fortunate, because if by 'corporeal' is meant ‘relating to land,' then a large class of incorporeal hereditaments are also entitled to the name ; if by 'incorporeal' is meant that they are mere rights, then all hereditaments are incorporeal, because the lawyer is only concerned with different classes of rights. In reality, however, it appears that the names point to different classes of rights; and in fact, Stephen in his edition of Blackstone, 5th ed., vol. i. p. 656, almost confines incorporeal hereditaments to jurii in alieno solo. See Austin, vol. ii. pp. 707, 708." Digby, Hist. Real Prop., App. to Part I. (11) note.
the conusee and his heirs ; and the attornment to the conusee or his heirs at any time to make privity to distrain is sufficient. But all this is to be taken as Littleton understood it, viz. of such grants as have their operation by the common law. For since Littleton wrote, if a fine be levied of a seigniory, &c. to another to the use of a chird person and his heirs, he and his heirs shall distrain without any attornment, because he is in by the Statute of 27 H. 8, cap. 10, by transferring of the state to the use, and so he is in by act in law.
And so it is, and for the same cause, if a man at this day by deed indented and enrolled according to the Statute, bargaineth and selleth a seigniory, &c. to another, the seigniory shall pass to him without any attornment; and so it is of a rent, a reversion, and a remainder. So as the law is much changed, and the ancient privilege of tenants, donees, and lessees much altered concerning attornments since Littleton wrote.
But if the conusce of a fine before any attornment by deed indented and enrolled, bargaineth and selleth the seigniory to another, the bargainee shall not distrain, because the bargainor could not distrain. Et sic de similibus ; for nemo potest plus juris ad alium transferre quam ipse habet. Vide Sect. 149, where upon a recovery, the recoveror shall distrain and avow without attornment.
A grant to the king, or by the king to another, is good without attornment, by his prerogative.
LIT. SS 567-569. Also, if a man letteth tenements for term of years, by force of which lease the lessee is seised, and after the lessor by his deed grant the reversion to another for term of life, or in tail, or in fee; it behooveth in such case that the tenant for years attorn, or otherwise nothing shall pass to such grantee by such deed. And if in this case the tenant for years attorn to the grantee, then the freehold shall presently pass to the grantee by such attornment without any livery of seisin, &c. because if any livery of seisin, &c. should be or were needful to be made, then the tenant for years should be at the time of the livery of seisin ousted of his possession, which should be against reason, &c.
Also, if tenements be letten to a man for term of life, or given in tail, saving the reversion, &c. if he in the reversion in such case grant the reversion to another by his deed, it behooveth that the tenant of the land attorn to the grantee in the life of the grantor, or otherwise the grant is void.
In the same manner is it, if land be granted in tail, or let to a man for term of life, the remainder to another in fee, if he in the remainder will grant this remainder to another, &c. if the tenant of the land attorn in the life of the grantor, then the grant of such a remainder is good or otherwise not."
1 See Lit. $$ 579 et seq. “Sir Will. Cordall, Mr. of the Rols (1557-1581), denied to compell one to attorn here that was at liberty by the common law, in the Case of Sir John Windham.
“ Chancellor Bromely likewise denied such compulsion generally, but where the party St. 4 ANNE (1705), c. 16, § 9. And be it further enacted by the authority aforesaid, That from and after the said first day of Trinity term , all grants or conveyances thereafter to be made, by fine or otherwise, of any manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual, to all intents and purposes, without any attornment of the tenants of any such manors, or of the land out of which such rent shall be issuing, or of the particular tenants upon whose particular estates any such reversions or remainders shall and may be expectant or depending, as if their attornment had been had and made.
DOE d. WERE v. COLE.
King's BENCH. 1827.
[Reported 7 B. & C. 243.] EJECTMENT for the recovery of the moiety of certain lands and premises, situate in the parishes of Loddiswell and Churstow, in the county of Devon. At the trial before Gaselee, J., at the last assizes for the county of Devon, the plaintiff had a verdict, subject to the opinion of this court on the following case:—
The lessors of the plaintiff made title under a deed of conveyance from one Walter Prideaux, which recited, that he was indebted to them in a sum of £3000, and that he had agreed to secure the same by demising and assigning the premises thereinafter mentioned ; that in pursuance of an agreement recited in the deed, and in consideration of 58., he Prideaus did demise, lease, grant, assign, transfer, and set over, direct, limit, and appoint unto R. Were, W. Were, and S. Were, as trustees, their executors, administrators, and assigns, all that moiety or half part of and in all that messuage, &c. lying and being in the town of Kingsbridge, and therein particularly described, which said premises were then in the tenure or occupation of the said Prideaux, and the reversion, remainder, rents, issues, and profits thereof, and of
quarrelled with the particular tenant's estate or entereth into some part of the lands in demise, or hath covenanted for recompense for non-attornment, there he utterly denieth to enforce the attornment. Pasch, 21 Eliz. (1579) in Case of Philips and Doctor Sandford.” Cary, 5.
1 For similar statutes in the United States, see Stimson, Am. Stat. Law, $ 2009.
“Formerly, in order to constitute a privity of estate between the purchaser of the reversion and the lessee, so as to enable the former to maintain an action of debt for rent, attornment was necessary. But by St. 4 Anne, c. 16, § 9, a grant of the reversion is good and effectual without attornment. Moss v. Gallimore, 1 Doug. 279. That statute having been passed long before the Revolution, and this provision being a rule in amendment of the common law, we inay probably consider it in force here. Commonwealth v. Leach, 1 Mass. 61. But if otherwise, the rule itself is well established on the authority of long usage, and its adaptation to the more simple tenures, which were in use under our former government. Farley v. Thompson, 15 Mass. 25, 26." Per Shaw, C. J., in Burden v. Thayer, 3 Met. 76, 78.
every part thereof; and also all that the moiety of and in all that capital messuage Barton Farm, and demesne lands called or commonly known by the name of Hatch Arundel, situate, lying, and being in the parishes of Loddiswell and Churstow, in the county of Devon; and which said last-mentioned premises were heretofore in the possession of one A. Rendell, and of the said W. Prideaux, and do contain in the whole by estimation 150 acres or thereabouts (be the same more or less), and are now in the possession of the said W. Prideaux and of Samuel Cole. The indenture then, after describing two other moieties or half parts undivided of a messuage and tenement, and of a barn situate in the parish of Lodliswell, in the possession of Joanna Saunders, proceeded as follows : " and all houses, outhouses, &c. profits, &c. hereditaments and appartenances whatsoever to the said moieties belonging, and the reversion and reversions, remainder and remainders, rents, suits, and services thereof, and of every part thereof, and all the estate, right, title, interest, term and terms of years, use, trust, property, claim, and demand whatsoever of him, W. Prideaux, bis heirs or assigns, either in law or equity, of, into, or out of the same or any part thereof, to have and to hold the said moiety, or half part of the said messuage, tenement, or dwelling-house in Kingsbridge, with the appurtenances, unto the said R. Were, W. Were, and S. Were, their executors, administrators, and assigns, from the date of the indenture, for and during, and unto the full end and term of 2000 years thence next ensuing, and fully to be complete and ended, yielding and paying, therefore, yearly and every year during the said term, unto him, W. Prideaux, his heirs or assigns, the rent of one pepper corn if the same should be lawfully demanded ; and to have and to hold all and singular the several moieties or half parts hereby demised and assigned, or mentioned, or intended so to be, situate, lying and being in the several parishes of Loddiswell and Churstow, with their, and each and every of their several and respective rights, members, and appurtenances unto the said R. W., W. W., and S. W., their executors, from the day of the date thereof, for and during all the natural life of the said W. Prideaux without impeachment of waste.”
The trusts as to all the premises were declared to be for sale, when R. W., W. W., and S. W. should think proper. There were covenants by W. Prideaux, that he had full power to convey the same, and a right of entry given to R. W., W. W., and S. W. This indenture was duly executed by W. Prideaus at the time of its date, no livery of seisin was indorsed on it, and no evidence was offered that any had in fact been made. The defendant, Samuel Cole, before and at the time of the esecution of this indenture, was tenant from year to year to W. Prideaux of part of the lands and premises comprised in the deed, and therein described as being situate in the parishes of Loddiswell and Churstow.
After the execution of this indenture, viz. in October 1825, W. Prid. eaux became a bankrupt, and the defendant, S. Cole, having disclaimed