Original conveyances are the following: 1. Feoffment; Original con2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: veyances are— derivative are, 7. Release; 8. Confirmation; 9. Surrender;

10. Assignment; 11. Defeazance.

1. A feoffment, feoffamentum, is a substantive derived 1. Feoffment. from the verb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi (x). It is the most antient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feoffor; and the person enfeoffed is denominated the feoffee.

The feoffor must
expressly de-
clare the quan-

means to con

vey.

This is plainly derived from, or is indeed itself the very mode of the antient feodal donation; for though it may be performed by the word, "enfeoff" or "grant," yet the tity of estate he aptest word of feoffiment is, "do or dedi" (y). And it is still directed and governed by the same feodal rules; insomuch that the principal rule relating to the extent and effect of the feodal grant, " tenor est qui legem dat feudo," is in other words become the maxim of our law with relation to feoffments,"modus legem dat donationi" (z). And therefore, as in pure feodal donations the lord, from whom the feud moved, must expressly limit and declare the continuance or quantity of estate which he meant to confer, "quis plus donasse præsumatur, quam in donatione ex"presserit" (a); so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) hath barely an estate for life (b). For as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the 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

(x) Co. Litt. 9. (y) Ibid.

(z) Wright, 21.

(a) Pag. 108, [and 56].
(b) Co. Litt. 42.

" ne

The feoffee must have livery of seisin.

The origin of investiture.

and constitution of the estate, hath given it a longer continuance. These express provisions are indeed generally made; for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple (c), 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 (d).

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 (e). This livery of seisin is no other than the pure feodal investiture, or delivery of corporal possession of the land or tenement; which was held absolutely necessary to complete the donation. "Nam feudum sine investitura nullo modo constitui po"tuit" (f): and an estate was then only perfect, when, as the author of Fleta expresses it in our law, "fit juris et "seișinæ conjunctio” (g) (13).

Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord, and that he did not grant a bare litigious

(13) Lord Mansfield (in Taylor v. Horde, 1 Burr. 107), said, in conformity with the text above, "seisin is a technical term, to denote the completion of that investiture by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. Disseisin, consequently, means some way of turning the tenant out of his tenure, and usurping his place and feudal relation." It should be observed, however, that livery of seisin, though the fact be not indorsed on the deed of feoffment, will

be presumed, where the possession has gone according to the feoffment for great length of time. (Jackson v. Jackson, Fitz-Gib. 147. Throckmorton v. Tracey, 1 Plowd. 149). And a court of equity will even supply the admitted defect of livery of seisin, where a feoffment appears to have been made for a good or a valuable consideration. (Thompson v. Attfield, as stated from Reg. Lib. in Mr. Raithby's note to 1 Vern. 40. Burgh v. Francis, 1 Eq. Ca. Ab. 320).

qualified to prosecute, but
And at a time when writ-

right, which the soldier was ill
a peaceable and firm possession.
ing was seldom practised, a mere oral gift, at a distance
from the spot that was given, was not likely to be either
long or accurately retained in the memory of by-standers,
who were very little interested in the grant. Afterwards
they were retained as a public and notorious act, that the
country might take notice of and testify the transfer of the
estate; and that such, as claimed title by other means,
might know against whom to bring their actions (14).

In all well-governed nations some notoriety of this kind has been ever held requisite, in order to acquire and ascertain the property of lands. In the Roman law plenum dominium was not said to subsist, unless where a man had both the right and the corporal possession; which possession could not be acquired without both an actual intention to possess, and an actual seisin, or entry into the premises, or part of them in the name of the whole (h).. And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possession is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists (i), acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in dignities possession is given by instalment; in rectories and vicarages by induction, without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands by our law, which are cast on the heir by

(h) Nam apiscimur possessionem corpore et animo; neque per se corpore, neque per se animo. Non autem ita accipiendum est, ut qui fundum possidere velit, omnes glebas circumambulet; sed

sufficit quamlibet partem ejus fundi in-
troire. (Ff. 41. 2, 3). And again: tra-
ditionibus dominia rerum, non nudis
pactis, transferuntur. (Cod. 2, 3, 20).
(i) Decretal, 1. 3, t. 4, c. 40.

(14) See ante, p. 54, note (17) to chapter 4.

Symbolical de

livery of possession antiently allowed.

act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised (k). It is not therefore only a mere right to enter, but the actual entry that makes a man complete owner; so as to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem (1) (15).

Yet, the corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was in many cases antiently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was per[ *313] *mitted as equivalent to occupancy of the land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth (m): "now this was the manner in former "time in Israel, concerning redeeming and concerning

66

changing, for to confirm all things: a man plucked off his "shoe, and gave it to his neighbour; and this was a testimony in Israel." Among the antient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses (n). With our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish the conveyance of lands (o). And, to this day, the conveyance 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

(k) See pag. 209, 227, 228.
(1) Flet. l. 6, c. 2, s. 2.

(m) Ch. 4, v. 7.

(n) Stiernhook, de jure Sueon. 1. 2,

c. 4.

(0) Hickes, Dissert. Epistolar. 85.

(15) See ante, pp. 128, 209, 227, with the notes thereto.

lord to the purchasor by re-delivery of the same, in the pre

sence of a jury of tenants.

ances.

Conveyances in writing were the last and most refined Introduction of improvement. The mere delivery of possession, either actual written conveyor symbolical, depending on the occular 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, [ *314 ] 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 antient and notorious method of transfer, by delivery of corporal possession.

necessary on the

hold, whether of for life only.

inheritance, or

Livery of seisin, by the common law, is necessary to be Livery of seisin made upon every grant of an estate of freehold in heredita- grant of a freements corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impossible to be made (16); for they are not the object of the senses; and in leases for years, or other chattel interests, it is not necessary. In leases for years 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

(16) See ante, note (5) to chapter 2, and also note (5) to chapter 3, with note (8) to chapter 9.