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a state of society which certainly never had any existence in Michigan. The peculiar reasons and relations out of which this doctrine sprung never having had any existence here, why should the rule itself? Where the reasons from whence a rule arose cease to exist, the rule should cease also. In a country where they never existed, the rule should not be adopted. Of course there may be exceptions to this. Other reasons for continuing a rule may arise while those from whence
instance. The doctrine of attornment is inconsistent with our laws, customs and institutions. It may serve a useful purpose in estopping a tenant from denying the title of a landlord to whom he has attorned, but beyond this it can be of but little if any use. “ The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.” Story, J., in Van Ness v. Pacard, 2 Pet. 144 ; or as was said in Lorman v. Benson, 8 Mich. 25 : « Questions of property, not clearly excepted from it, must be determined by the common law, modified only by such circumstances as render it inapplicable to our local affairs.” Cooley's Const. Lim. 23 and note.
I am of opinion that the court erred in charging the jury that an attornment was necessary to entitle the plaintiffs to recover. The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred.
RELEASE AND SURRENDER.
LIT. $$ 444, 445, 459, 460. Releases are in divers manners, viz. releases of all the right which a man hath in lands or tenements, and releases of actions personals and reals, and other things. Releases of all the right which men have in lands and tenements, &c. are commonly made in this form, or of this effect.
Know all men by these presents, that I, A. of B. have remised, released, and altogether from me and my heirs quiet claimed: (me A. de B. remisisse, relaxasse, et omnino de me et hæredibus meis quietum
the right, title, and claim (totum jus, titulum, et clameum) which I have, or by any means may have, of and in one messuage with the appurtenances in F. &c. And it is to be understood, that these words, remisisse, et quietum clamasse, are of the same effect as these words, relaxasse.
Also, if a man letteth to another bis land for term of years, if the lessor release to the lessee all his right, &c. before that the lessee had entered into the same land by force of the same lease, such release is void, for that the lessee had not possession in the land at the time of the release made, but only a right to bave the same land by force of the lease. But if the lessee enter into the land, and hath possession of it by force of the said lease, then such release made to him by the feoffor, or by his heir, is sufficient to him by reason of the privity which by
In the same manner it is, as it seemeth, where a lease is made to a man to hold of the lessor at his will, by force of which lease the lessee hath possession : if the lessor in this case make a release to the lessee of all his right, &c. this release is good enough for the privity which is between them; for it shall be in vain to make an estate by a livery of seisin to another, where he hath possession of the same land by the lease of the same man before, &c.
(But the contrary is holden, Pasch. 2 E. 4, by all the justices.)
Co. Lit. 337 b. “ Surrender,” sursum redditio, properly is a yielding up an estate for life or years to him that hath an immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them.
LIT. $$ 167, 586. Also, in some boroughs, by the custom, a man may devise by his testament bis lands and tenements, which he hath in fee simple within the same borough at the time of his death ; and by force of such devise, he to whom such devise is made, after the death of the devisor, may enter into the tenements so to him devised, to have and to hold to him, after the form and effect of the devise, without any livery of seisin thereof to be made to him, &c.
In the same manner is it, where a man letteth such tenements devisable to another for life, or for years, and deviseth the reversion by his testament to another in fee, or in fee tail, and dieth, and after the tenant commits waste, he to whom the devise was made shall have a writ of waste, although the tenant doth never attorn. And the reason is, for that the will of the devisor made by his testament shall be performed according to the intent of the devisor ; and if the effect of this should lie upon the attornment of the tenant, then perchance the tenant would never attorn, and then the will of the devisor should never be performed, &c. and for this the devisee shall distrain, &c. or he shall have an action of waste, &c. without attornment. For if a man deviseth such tenements to another by his testament, habendum sibi in perpetuum, and dieth, and the devisee enter, he hath a fee simple,
causa qua supra ; yet if a deed of feoffment had been made to him by the devisor of the same tenements, habendum sibi in perpetuum, and livery of seisin were made upon this, he should have an estate but for term of his life.
DISSEISIN AND OTHER OUSTER.
Lit. $$ 279, 385. And note that disseisin is properly, where a man entereth into any lands or tenements where his entry is not congeable, and ousteth him which hath the freehold, &c.
Descents which toll entries are in two manners, to wit, where the descent is in fee, or in fee tail. Descents in fee which toll entries are, as if a man seised of certain lands or tenements is by another disseised, and the disseisor hath issue, and dieth of such estate seised, now the lands descend to the issue of the disseisor by course of law, as heir unto him. And because the law cast the lands or tenements upon the issue by force of the descent, so as the issue cometh to the lands by course of law, and not by his own act, the entry of the disseisee is taken away, and he is put to sue a writ of entre sur disseisin against the heir of the disseisor, to recover the land.
LIT. $$ 414, 415, 422, 423, 592, 595-600, 611, 698. Continual claim is where a man hath right and title to enter into any lands or tenements whereof another is seised in fee or in fee tail, if he which hath title to enter makes continual claim to the lands or tenements before the dying seised of him which holdeth the tenements, then albeit that such tenant dieth thereof seised, and the lands or tenements descend to his heir, yet may he who hath made such continual claim, or his heir, enter into the lands or tenements so descended, by reason of the continual claim made, notwithstanding the descent. As in case that a man be disseised, and the disseisee makes continual claim to the tenements in the life of the disseisor, although that the disseisor dieth seised in fee, and the land descend to his heir, yet may the disseisee enter upon the possession of the heir, notwithstanding the descent.
In the same manner it is, if tenant for life alien in fee, he in the
1 All socage land and two thirds of the land held by knight service were made devisable by will in writing by the Sts. of 32 Hen. VIII. (1540) c. 1, and 34 & 35 Hen. VIII. (1543) c. 5. Land held by knight-service having been turned into socage land by the St. of 12 Car. II. (1660) c. 24, all land has since that time been devisable.
reversion or be in the remainder may enter upon the alienee. And if such alienee dieth seised of such estate without continual claim made to the tenements, before the dying seised of the alienee, and the lands by reason of the dying seised of the alienee descend to his heir, then cannot be in the reversion nor be in the remainder enter. But if he in the reversion or in the remainder, who hath cause to enter upon the alienee, make continual claim to the land before the dying seised of the alienee, then such a man may enter after the death of the alienee, as well as he might in his life-time.
And if his adversary who occupieth the land, dieth seised in fee, or in fee tail, within the year and a day after such claim, whereby the lands descend to his son as heir to him, yet may he which makes the claim enter upon the possession of the heir, &c.
But in this case after the year and the day that such claim was made, if the father then died seised the morrow next after the year and the day, or any other day after, &c. then cannot he which made the claim enter: and therefore if he which made the claim will be sure at all times that his entry shall not be taken away by such descent, &c. it behooveth him that within the year and the day after the first claim made, to make another claim in form aforesaid, and within the year and the day after the second claim made, to make the third claim in the same manner, and within the year and the day after the third claim to make another claim, and so over, that is to say, to make a claim within every year and day next after every claim made during the life of his adversary, and then at what time soever his adversary dieth seised, his entry shall not be taken away by any descent. And such claim in such manner made is most commonly taken and named continual claim of him which maketh the claim, &c.
Discontinuance is an ancient word in the law, and hath divers significations, &c. But as to one intent it bath this signification, viz. where a man hath aliened to another certain lands or tenements and dieth, and another hath right to have the same lands or tenements, but he may not enter into them because of such an alienation, &c.
Also, if tenant in tail of certain land thereof enfeoff another, &c. and hath issue and dieth, his issue may not enter into the land, albeit he hath title and right to this, but is put to his action, which is called a formedon in le discender, &c.
Also, if there be tenant in tail, the reversion being to the donor and his heirs, if the tenant make a feoffment, &c. and die without issue, he in the reversion cannot enter, but is put to his action of formedon in le reverter.
In the same manner is it, where tenant in tail is seised of certain land whereof the remainder is to another in tail, or to another in fee. If the tenant in tail alien in fee, or in fee-tail, and after die without issue, they in the remainder may not enter, but are put to their writ of formedon in the remainder, &c. and for that that by force of such feoffments and alienations in the cases aforesaid, and the like cases they that have title and right after the death of such a feoffor or alienor may not enter, but are put to their actions, ut supra ; and for this cause such feoffments and alienations are called discontinuances.
Also iť tenant in tail be disseised, and he release by his deed to the disseisor and to his heirs all the right which he hath in the same tenements, this is no discontinuance, for that nothing of the right passeth to the disseisor, but for term of the life of tenant in tail which made the release, &c.
But by the feoffment of tenant in tail, fee simple passeth by the same feoffment by force of the livery of seisin, &c.
But by force of a release nothing shall pass but the right which he may lawfully and rightfully release, without hurt or damage to other persons who shall have right therein after his decease, &c. So there is great diversity between a feoffment of tenant in tail, and a release made by tenant in tail.
But otherwise it is when tenant for life maketh a feoffment in fee, for by such a feoffment the fee simple passeth. For 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, &c.
Warranty that commences by disseisin is in this manner: as where there is father and son, and the son purchaseth land, &c. and letteth the same land to his father for term of years, and the father by his deed thereof enfeoffeth another in fee, and binds him and his heirs to warranty, and the father dies, whereby the warranty descendeth to the son, this warranty shall not bar the son ; for notwithstanding this warranty the son may well enter into the land, or have an assise against the alienee if he will, because the warranty commenced by disseisin : for when the father which had but an estate for term of years, made a feoffment in fee, this was a disseisin to the son of the freehold which then was in the son. In the same manner it is, if the son letteth to the father the land to hold at will, and after the father make a feoffment with warranty, &c. And as it is said of the father, so it may be said of every other ancestor, &c. In the same manner is it, if tenant by elegit, tenant by statute mercbant, or tenant by statute staple, make a feoffment in fee with warranty, this shall not bar the heir which ought to have the land, because such warranties commence by disseisin.
Co. Lit. 277 a, b. “ Abate,” is both an English and French word, and signifieth in his proper sense to diminish or take away, as here by his entry he diminisheth and taketh away the freehold in law
1 St. 8 & 9 Vict. c. 106 (1845), c. 4, provides “that a feoffment made after" October 1, 1845, “shall not have any tortious operation.” For like Statutes in the United States, see Stimson, Am. Stat. Law, $ 1402.