estate for life (y). For, as the personal liabilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the [* 499] *feoffee's estate ought to be confined to his person and subsist only for his life: unless the feoffor, by express provision in the creation. and constitution of the estate, has given it a longer continuance. These express provisions are indeed generally made; for this was for ages the only conveyance, by which our ancestors were wont to create an estate in feesimple (2), by giving the land to the feoffee, to hold to him and his heirs for ever; though it serves equally well to convey any other estate of freehold (a). But by the mere words of the deed the feoffment is by no means perfected, there remains a very material ceremony to be performed, called livery of seisin; without which the feoffee has but a mere estate at will (b). This Livery of seisin. livery of seisin is no other than the pure feudal investiture, or delivery of corporal possession of the land or tenement; which was held absolutely necessary to complete the donation. "Nam feudum sine investiturá nullo modo constitui potuit" (c): and an estate was only perfect, when, as the author of Fleta expresses it in our law, "fit juris et seisina conjunctio" (d).

The advantage of this mode of conveyance in ancient times no doubt consisted in the publicity of it, for when writings were, to say the least, rare, it was necessary that the evidence of right should be preserved by those whose personal interest in the matter would engage their attention. Therefore the ceremony took place on the land, in the presence of the neighbours, who, should litigation subsequently arise, would constitute at once the witnesses and the jury to decide the right. Moreover, it was thought a matter of high policy that no secret dealing with the possession of land should be encouraged. With our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish the conveyance of *lands (e). And, to this day, the con[* 500 ] veyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of tenants. Conveyances in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolical, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities, introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed: yet still, for a very long series of years, they were never made use of, but in company with the more ancient and notorious method of

(y) Co. Litt. 42.

(2) See Appendix, No. 1.

(a) Co. Litt. 9.

(b) Litt. s. 70; 4 Cru. Dig. t. 32, c. 4.

(c) Wright, 37.
(d) L. 8, c. 15, s. 5.

(e) Hickes, Dissert. Epistolar. 85.

transfer, by delivery of corporal possession. But until recently a deed was not necessary for a feoffment, though the Statute of Frauds required a writing (ƒ). The act to amend the law of real property now requires a feoffment to be by deed (g).

[*501] In leases for years

Livery of seisin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life * only. In incorporeal hereditaments it is impossible to be made; for they are not the object of the senses: and in leases for years, or other chattel interests, it is not necessary. indeed an actual entry is necessary to vest the estate in the lessee; for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini: and, when he enters in pursuance of that right, he is then, and not before, in possession of his term, and complete tenant for years (h). This entry by the tenant himself serves the purpose of notoriety, as well as livery of seisin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot by a common law assurance be made to commence in futuro, because they cannot (at the common law) be made but by livery of seisin; which livery, being an actual manual tradition of the land, must take effect in præsenti, or not at all (i).

[*502]

On the creation of a freehold remainder, at one and the same time, with a particular estate for years, we have before seen that at the common law livery must be made to the particular tenant (k). But if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing; "nam quod semel meum est, amplius meum esse non potest" (1); but it must be made to the remainderman himself, by consent of the lessee for years: for without his consent no livery of the possession can be given (m); partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given (n) for introducing the doctrine of attornments. *Livery of seisin is either in deed, or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney, (for this may as effectually be done by deputy or duly authorised attorney, as by the principals themselves in person) come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of land, delivers to the feoffee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect: "I deliver these to you in the name of seisin of all the lands and tenements contained in this deed." But if it be of a house, the feoffor must take the ring, or latch of the door, the house being quite empty, or at least the person in possession being a consenting party (0), and deliver it to the feoffee in the same form; and then the feoffee

Livery in deed.

For, if

must enter alone, and shut to the door, and then open it, and let in the others (p). If the conveyance or feoffment be of divers lands, lying scattered in one and the same county, then in the feoffor's possession, livery of seisin of any parcel, in the name of the rest, suffices for all (q); but if they be in several counties, there must be as many liveries as there are counties. the title to these lands comes to be disputed, there must be as many trials as there are counties, and the jury of one county are not judges of the notoriety of a fact in another. Besides, anciently this seisin was obliged to be delivered coram paribus de vicineto, befere the peers or freeholders of the neighbourhood, who attested such delivery in the body or on the back of the deed;

[* 503 ] according to the rule of the feudal law (r), pares debent interesse investituræ feudi, et non alii: for which this reason is expressly given; because the peers or vassals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though, afterwards, the ocular attestation of the pares was held unnecessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed (like that of other attestations), was still reserved to the pares or jury of the county (s). Also, if the lands be out on lease, though all lie in the same county, there must be as many liveries as there are tenants: because no livery can be made in this case but by the consent of the particular tenant; and the consent of one will not bind the rest (†). And in all these cases it is prudent, and usual, to endorse the livery of seisin on the back of the deed, specifying the manner, place, and time of making it; together with the names of the witnesses (u). And thus much for livery in deed. Livery in law is where the same is not made on the land, but in sight of it only: the feoffor saying to the feoffee, "I give you yonder land, enter and take possession." Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise; unless he dares not enter, through fear of his life or bodily harm: and then his continual claim, made yearly, in due form of law, as near as possible to the lands (x), will suffice without an entry (y). This livery in law cannot however be given or received by attorney, but only by the parties themselves (z).

Livery in law.

We have dwelt somewhat at length upon this ancient method of conveyance, on account of the former * universality with which it was employed, [* 504] a circumstance that cannot but be attended with great interest. It is now however, and has for some time been, out of use, with the single exception of the customary alienation of land of gavelkind tenure by an infant, for, as we have seen, an infant of the age of fourteen years or upwards may by feoffment convey lands of this tenure (a). A feoffment under this custom is an exception to the rule that a deed is requisite. It only remains to remind the reader that the tortious effect which feoffments formerly had, whereby a feoffment by a particular tenant as a tenant for life conveyed by wrong, as it was said, a fee-simple, thereby putting the remainder-man to his legal remedy

(p) Co. Litt. 48; West. Symb. 251.

(y) Litt. s. 61, 414, 418. By the act of induction into a benefice, a parson is put into actual possession of a part for the whole. Bulwer v. Bulwer, 2 B. & Al. 470.

(r) Feud. 1. 2, t. 58.

(8) Gilb. 10, 35.

(t) Dyer, 18.

(u) See Appendix, No. I.
(x) Litt. s. 421, &c.
(y) Co. Litt. 48, 254.
(z) Ib. 52.

(a) Ante, p. 170.

to recover the property, has been abolished, and now such a feoffment would but convey the estate for life, and have no further or other effect (b).

2. Gifts.

2. The conveyance by gift, donatio, is properly applied to the creation of an estate-tail, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of the estate passing by it: for the operative words of conveyance in this case are do or dedi (c); and gifts in tail are equally imperfect without livery of seisin, as feoffments in fee-simple (d). And this is the only distinction that Littleton seems to take, when he says (e), "it is to be understood that there is feoffor and feoffee, donor and donee, lessor and lessee;" viz. feoffor is applied to a feoffment in fee-simple, donor to a gift in tail, and lessor to a lease for life, or for years, or at will.

3. We come next to the third, and now, since the recent amendments, by far the most important of all assurances-grants-concessiones. (376) Feoff

8. Grants.

ment and gifts can operate only on corporeal hereditaments (thence said to lie in livery) and those in possession. Incorporeal *hereditaments and estates in reversion and remainder, as they were [* 505] incapable of being corporally delivered (ƒ), could only be conveyed by grant, and were therefore said to lie in grant (g). But before the recent act, a grant was inapplicable to convey the immediate freehold, which did not lie in grant. This has been altered, and an immediate estate now lies in grant as well as in livery (h).

From this circumstance the conveyance of any estate of freehold, whether in possession or reversion, when it is made to a stranger to the title, is always made by grant; and the estate passes by the delivering of the deed. The words were concedi et concessi, and the proper phrase is now "grant." The mode in which grants are modelled so as to operate under the statute of uses, will presently appear.

In this place we may very shortly notice that, by virtue of divers modern acts of parliament passed for the purpose of meeting the difficulties in conveying land when there is some personal incapacity on the part of the alienor, and yet a paramount necessity exists for conveyance, deeds of various kinds are authorised to be executed which operate in a wholly abnormal way. Thus, where land is purchased for a railway, and it is impossible, either by reason of incapacity or otherwise, that an ordinary conveyance can be made, a person having only a limited interest may convey the inheritance; or even a deed-poll executed by the company itself in a form prescribed by the act, will, if all preliminaries which are necessary for the protection of those interested in the

(b) 8 & 9 Vict. c. 106, s. 3; ante, pp. 262, inhaerens, traditionem non patiuntur.” Bract. 355, 438. 1. 2, c. 18.

(c) West. Symbol. 256. (d) Litt. s. 59.

(e) Sect. 57.

(f) Co. Litt. 9.

(g) Co. Litt. 172; "Traditio (or livery), nihil aliud est quam rei corporalis de persona in personam, de manu in manum, translatio aut in possessionem inductio; sed res incorporales, quæ sunt ipsum jus rei vel corpori

(h) 8 & 9 Vict. c. 106, s. 1, which act (s. 4) abolished the obsolete doctrines as to the effect of the words 'give' and 'grant,' ante, p. 483. The preceding act, 7 & 8 Vict. c. 76, which remained in force from the 1st January, 1845, to the 1st October, 1845, had a similar object, but was inartificially drawn, and was therefore repealed.

(376) See 4 Kent's Com. 490, 491, 492; 3 Washb. Real Prop. (3d ed.) 311-814.

land, have been duly observed, *have the effect of vesting the land [* 506 ] in the company (i). Again, in other cases, where a similar necessity for a conveyance exists, and a similar difficulty in finding a grantor, the court of chancery may appoint a person to convey, and his deed will operate even though he has no estate whatever in the land (k).

4. Leases.

Underlease for the whole term

of underlessor is in effect an assignment.

4. A lease is properly a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense), made for life, for years, or at will, but always for a less time than the lessor has in the premises: for if it be for the whole interest, it is more properly an assignment than a lease (7). Though no formal words are requisite to a lease at common law (m), the usual words of operation in it are, "demise, grant, and to farm let; dimisi, concessi, et ad firmam tradidi." Farm, or feorme, is an old Saxon word, signifying provisions (n): and it came to be used instead of rent or render, because anciently, the greater part of rents were reserved in provisions; in corn, in poultry, and the like: till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme: though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or land so held upon farm or rent. By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments; though livery of seisin is indeed incident and was necessary to one species of leases, viz. leases for life of corporeal hereditaments; but to no other. Before the Statute of Frauds a lease for any number of years might have been made by parol without writing, entry * merely being requisite to complete the estate. That statute (0) ren

[* 507] dered a lease for any period greater than three years (and even less

if the rent reserved did not amount to two-thirds of the full value) void as a lease, and only operative as creating an estate at will, unless put into writing and signed. Leases continued however not to be necessarily made by deed. until the recent act, already often referred to; which has rendered it necessary that all leases previously required to be in writing shall be made by deed (p). Much litigation has taken place to determine whether a particular instrument was a lease or merely an agreement for a lease, and it is said that formerly the judges endeavoured to construe them as leases and not agreements (7). Since the latter act the tendency is the other way; and a document void as a lease, from not being under seal, may be, and often is, construed as an agreement for a lease and enforceable as such (r).

Whatever restriction, by the severity of the feudal law, might in times of very high antiquity be observed with regard to leases, yet by the common law, as it has stood for many centuries, all persons seised of any estate might let leases to endure so long as their own interest lasted, but no longer. Therefore tenant in fee-simple might let leases of any duration;

Who may make leases.

(i) 8 & 9 Vict. c. 18, ss. 75, 77.

(k) 13 & 14 Vict. c. 60, s. 20.

(1) Ante, p. 341; Beardman v. Wilson, L. R. 4 C. P. 57.

(m) Co. Litt. 47 a; Mr. Hargrave's note, and Attoe v. Hemmings, Bulstr. 281; Bac. Ab. Leases, 281.

(n) Spelm. Gloss. 229.

(o) 29 Car. 2, c. 3, s. 1.

(p) 8 & 9 Vict. c. 106, s. 3.

(q) Tidey v. Mollett, 33 L. J. C. P. 235. For numerous instances where the discussion has arisen, see 4 Jarm. Bythe. Conv. 265, et seq.

(r) See the recent cases, Bond v. Rosling, 1 B. & S. 371; Rollason v. Leon, 7 H. & N. 73; Tidey v. Mollett, 16 C. B., N. S., 298; Taswell v. Parker, 2 De G. & J. 559.