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dicature. This was anciently the province of the Court of Star Chamber, and now of the Chancery;" when it appears that the deed was obtained by fraud, force, or other foul practice, or is proved to be an absolute forgery. In any of these cases the deed may be voided, either in part or totally, according as the cause of avoidance is more or less extensive.

And having thus explained the general nature of deeds, we Several speare next to consider their several species, together with their deeds. respective incidents. And herein I shall only examine the particulars of those which, from long practice and experience of their efficacy, are generally used in the alienation of real estates; for it would be tedious, nay, infinite, to descant upon all the several instruments made use of in personal concerns, but which fall under our general definition of a deed ; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, are commonly denominated conveyances ; which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses.

I. Of conveyances by the common law, some may be called I. Convey. original or primary conveyances; which are those by means common law whereof the benefit or estate is created or first arises: others are original are derivative or secondary; whereby the benefit or estate tive. originally created is enlarged, restrained, transferred, or extinguished.

Original conveyances are the following: 1. Feoffment; 2. (310) Gift; 3. Grant; 4. Lease; 5. Exchange ; 6. Partition : derivative are, 7. Release ; 8. Confirmation ; 9. Surrender ; 10. Assignment ; 11. Defeasance.

1. A feoffment, feoffamentum, is a substantive derived from 1. A feoffthe verb, to enfeoil, feoffare or infeudare, to give one a feud; and, therefore, enfeoffment is properly donatio feudi. It is the w Toth., Numo., 24. 1 Vern., 348.

1 Co. Litt., 9.

or deriva

ment

saying that the estate never vested in (28) The courts of common law are him. (4 Ves., 97; 3 Myl. & Cr., 708.) equally competent to nullify the deed

It was formerly supposed that an es- in such case, upon the principle that, tate of freehold could only be waived or the mind not assenting, it is not the disclaimed by matter of record. (Shepp., deed of the party sought to be charged Touch., 285.) But it is now clear, upon by it; and there is no necessity to reprinciple and authority, that even a pa- sort to a court of equity for relief, when rol disclaimer is sufficient, though liable, evidence at law can be adduced. (2 of course (as a more solemn disclaimer T. R., 765.) The advantage of resortwould be), to be rebutted by evidence ing to a court of equity is derived from of previous assent. (See 4 Man. & R., the peculiar jurisdiction exercised by it 189, n.; 1 Vent., 128; 2 Id., 108; 3 B. of directing a deed that is void for any & Ald., 31; 6 B. & Cr., 112; 10 Id., reason not apparent on the face of it to 80; 5 Mad., 435; 2 Scott, 128; 1 Myl. be delivered up, to be canceled; so that & K., 195; 3 Russ., 583.)

any danger from the loss of evidence is

thus effectually prevented. Vol. II.-A A

369

most ancient 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. *

This is plainly derived from, or is, indeed, itself the very mode of the ancient feodal donation ; for though it may be performed by the word “enfeoff” or “grant,” yet the aptest word of feoffment 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." 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 conser, "ne quis plus donasse præsumatur, quam in donatione expresserit;"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. 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 [ 311 ] express provision in the creation 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 forever ; though it serves equally well to

convey any other estate of freehold.d Livery of But by the mere words of the deed the feoffment is by no seizin.

means perfected, there remains a very material ceremony to be performed, called livery of seizin ; without which the feoffee has but a mere estate at will.e This livery of seizin is no other than the pure feodal investiture, or delivery of corporeal possession of the land or tenement; which was held absolutely necessary to complete the donation. Nam feudum sine iny Co. Litt., 9.

See Appendix, No. I. z Wright, 21.

d Co. Litt., 9. a Page 108.

e Litt., \ 70. b Co. Litt., 42. (29) This definition is not sufficiently strictness, the word is not applicable precise ; it requires the addition of unless an estate in fee-simple passes; words to this effect: "by the delivery where the conveyance is merely of an of seizin and possession of the thing estate for life, it is properly called a given.” (Shepp., Touchst., 203.) In lease; of an estate-tail, a gift.

* The mode of conveyance of lands by feoffment with livery of seizin is abolished in New York.-(1 R. S., 738, \ 136.)

vestiturâ nullo modo constitui potuit :"{ and an estate was then only perfect when, as the author of Fleta expresses it in our law, fit juris et seisinæ conjunctio.”!

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 right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And, at a time when writing was seldom practiced, 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. Afterward 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.

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 (312) the corporeal possession ; which possession could not be acquired without both an actual intention to possess, and an actual seizin, or entry into the premises, or part of them, in the name of the whole. And even in ecclesiastical promotions, where the freehold passes to the persou promoted, corporeal 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 corporeal 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 act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporeal 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 seized. 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 seizina, facit stipitem.

f Wright, 37.

sufficit qunmlibet partem ejus fundi in& L. 3, c. 15, $ 5.

troire. — (Ff., 41, 2, 3.) And again: Nam apiscimur possessionem cor- Traditionibus dominia rerum, non nudis pore et animo; neque per se corpore, pactis, transferuntur. (Cod., 2, 3, 20.) neque per se animo. Non autem ita ac- i Decretal., l. 3, t. 4, c. 40. cipiendum est, ut qui fundum possidere See p. 209, 227, 228. velit, omnes glebas circumambulet; sed | Flet., 1. 6, c. 2, V 2.

Symbolical Yet, the corporeal tradition of lands being sometimes inconlivery.

venient, a symbolical delivery of possession was in many cases anciently 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 permitted as [313] 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 changing, for to confirm all things : a man plucked off his shoe and gave it to his neighbor; and this was a testimony in Israel.” Among the ancient 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. With our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish the conveyance of lands. 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 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 remem

brance of the witnesses, was liable to be forgotten or misrep'resented, 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 purpose 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 he effected by a mere simple corporeal transfer of the soil from

one man to another, which was principally calculated for con[314] veying 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 transfer, by delivery of corporeal possession.

Livery of seizin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corm Ch. 4, v. 7.

Stiernhook, De Jure Sueon. l. 2, • Hickes, Dissert. Epistolar., 85.

c. 4.

poreal, whether of inheritance or for life only. In hereditaments incorporeal 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. 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 right, he is then, and not before, in possession of his term, and complete tenant for years. This entry by the tenant himself serves the purpose of notoriety, as well as livery of seizin 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 can not be made to commence in futuro, because they can not (at the common law) be made but by livery of seizin; which livery, being an actual manual tradition of the land, must take effect in præsenti, or not at all.930

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. But if such a remainder be created afterward, 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 ;"s but it must be made to the remainder-man himself, by consent of the lessee for years; for without his consent no livery of the [315 7 possession can be given ;t partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before givenu for introducing the doctrine of attornments.

Livery of seizin is either in deed or in law. Livery in deed Livery in 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 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 feoffp Co. Litt., 46.

Co. Litt., 49. 9 See page 165.

Ibid., 48. " Page 167.

Page 288.

deed.

u

(30) This is still so in conveyances cipals; for if he who has given the auat common law, but it is otherwise in thority die before the livery of seizin is conveyances to uses under the statute. completed, the authority of his attorn(1 Saund. on Uses, 3d ed., 128–9; 4 ey, whether to give or to receive seizin, Taunt., 20; Willes, 682; 2 Wils., 75.) is at an end; and if the other party die,

the object of the authority is gone. (See (31) But the authority given for this 2 Roll. Ab., 8 R., pl. 4, 5; Co. Litt., 52, purpose should be by deed. And, b; 2 B. & Al., 156. (Livery to one of whether given by the feoffor or feoffee, several joint feoffees is good as to the it must be completely executed or per- whole. (2 Leon., 23; 2 Veut., 198.) formed in the lifetime of both the prin

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