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ment or lease on which livery is to be made. And then the feoffor, if it be of land, doth deliver 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 seizin of all the lands and tenements contained in this deed.” But if it be a house, the feoffor must take the ring, or latch of the door, the house being quite empty," and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others. 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 seizin of any parcel, in the name of the rest, sufficeth for all ;" but, if they be in several counties, there must be as many liveries as there are counties. For, if 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 no judges of the notoriety of a fact in another. Besides, anciently this seizin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighborhood, who attested such delivery in the body or on the back of the deed; according to the rule of the feodal law, pares

debent interesse investiture feudi, et non alii : for which this ( 316 ) 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, afterward, 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 all other attestationsz), was still reserved to the pares, or jury of the county. 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.b And in all these cases it is prudent, and usual, to endorse the livery of seizin on the back of the deed, specifying the manner, place

* Co. Litt., 48. West. Symb., 251.
* Litt., \ 61, 414, 418.
» Feud., 1. 2, t. 58.

? See p. 307.
a Gilb., 10, 35.
b Dyer, 18.

(32) It is not necessary that the house M. & R., 120.). Of course, if a person should be empty; it is sufficient that enter wrongfully, his feoffment during the possession be vacant, or that the the presence of the true owner is void livery be made with the consent of the (Perk., 45, A., 219.) persons in possession. The accidental presence of a stranger not belonging to (33) By the act of induction into a the family of the person in possession, benefice, a parson is put into actual posand not meaning to defend the posses- session of a part for the whole. (2 B. sion, is immaterial. (Dig., 33, a, 362; & A., 470.) Cro. El., 322; 2 Nev. & M., 508; 2 Cr.,

and time of making it; together with the names of the witnesses.c And thus much for livery in deed. Livery in law is where the same is not made on the land, Livery in

law. 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,d will suffice without an entry. This livery in law can not, however, be given or received by attorney, but only by the parties themselves.f

2. The conveyance by gift, donatio, is properly applied to 2. Gifts. 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 ;& and gifts in tail are equally imperfect without livery of seizin, as feoffments in fee-simple.b And this is the only distinction that Littleton seems to take, when he says, [317] “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. In common acceptation, gifts are frequently confounded with the next species of deeds:

which are,

3. Grants, concessiones ; the regular method by the common 3. Grants. law of transferring the property of incorporeal hereditaments, or such things whereof no livery can be had.k For such reasons all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advowsons, commons, rents, reversions, &c., to lie in grant. And the reason is given by Bracton :m “ 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 inhærens, traditionem non patiuntur.These, therefore, passed merely by delivery of the deed. And

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(34) Even where the possession is in will, the reversion lies in grant. (7 B. a mere tenant from year to year, or at & Cr., 247.)

This mode of conveyance of lands, differing from a feoffment only in the nature of the estate passing by it, is abolished. (See ante, p. 309, n.


in seigniories, or reversions of lands, such grant, together with the attornment of the tenant (while attornments were requisite), were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in its subject-matter; for the operative words therein commonly used

are dedi et concessi, “ have given and granted.” 4. Leases. 4. A lease is properly a conveyance of any lands or tene

ments (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 hath in the premises ; for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, “ demise, grant, and to

farm let; dimisi, concessi et ad firmam tradidi." Farm, or [ 318 ] 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 lands 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 seizịn is indeed incident and necessary to one species of leases, viz., leases for life of corporeal hereditaments ;* but to no other. 35

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(35) Before the Statute of Frauds, a lease at common law. This laxity was lease for any number of years might probably occasioned by the little estihave been made by parol without writ- mation in which estates of this inferior ing, entry only being requisite to com- nature were formerly held. " Whatey. plete the lessee's estate; but since that er words are sufficient to express the statute, no lease for a longer period than intention of the parties, that the one three yearst is good without writing. A shall divest himself of the possession, deed, however, is not requisite to the and the other come into it for such a validity of a lease of corporeal heredita- determinate time, such words, whether ments, as such; although, of course, the they run in the form of a licenre, covecovenants which a lessee is usually re- nant, or agreement, are o. wemselves quired to enter into must be by deed. sufficient, and will, in construction ul (2 Wils., 27; 1 Per. & D., 440.) The law, amount to a lease for years as ef apparent contradiction in 2 Wils., 49, is fectually as if the most proper and per occasioned merely by a careless ex- tinent words had been made use of for pression of the court. Incorporeal her- that purpose; and, on the contrary, if editaments can not be demised without the most proper and anthentic form of deed. (4 Nev. & M., 505; 8 Ad. & E., words whereby to describe and pass a 716.)

present lease for years are made use of, No formal words are requisite to a yet if upon the whole deed there ap

* Such lease for life may now be made by grant in New York.-(1 R. S., 738, N 137.)

+ In New York, a lease by parol for a term longer than one year is void.—(2 R. S., 134, $ 6.)


Whatever restriction, by the severity of the feodal law, Who may

make leas. 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 seized 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 ; for he hath the whole interest: but tenant in tail, or tenant for life, could make no leases which should bind the issue in tail or reversioner; nor could a husband, seized jure uxoris, make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants for life, where the fee-simple was in abeyance, might Tenants for

life. (with the concurrence of such as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-simple, such as parsons and vicars with consent of the patron and ordinary.o . So, also, bishops and deans, and Ecclesias

tical persons such other sole ecclesiastical corporations as are seized of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or control. And corporations aggre- Corpora.

tions. gate might have made what estates they pleased, without the confirmation of

[319] whatsoever. Whereas now,

person by several statutes, this power, where it was unreasonable, and might be made an ill use of, is restrained ; and where, in the other cases, the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statute. We will take a view of them all, in order of time.

And, first, the enabling statute, 32 Hen. VIII., c. 28, empow. Enabling ers three manner of persons to make leases, to endure for three Hen. VIII., lives, or one-and-twenty years; which could not do so before. c. 28. As, first, tenant in tail may, by such leases, bind his issue in Leases by tail, but not those in remainder or reversion. Secondly, a tail, hushusband seized in the right of his wife, in fee-simple or fee-bands, and

al persons. • Co. Litt., 44.

any other

pears no such intent, but that they are cordingly." (Bac. Ab., Leases, (K.); 5
only preparatory and relative to a fu- T. R., 163.) The consequence of this
ture lease to be made, the law will neglect of technicality has been a vast
rather do violence to the words than quantity of litigation on the question
break through the intent of the parties; whether a particular contract amounts
for a lease for years being no other than to an actual lease, or only to an agree-
a contract for the possession and profits ment for one; the difference of stamp
of the lands, on the one side, and a duty required in the two cases often
recompense of rent or other income, on enabling one or other of the parties to
the other-if the words made use of are maintain a dishonest defense upon this
sufficient to prove such a contract, in point. (See 1 Moo. & Sc., 259; 1 Per.
what form soever they are introduced, & D., 410; 5 M. & W., 104; 1 Q. B.
or however variously applicable, the Rep., 506, and the authorities there re-
law calls in the intent of the parties, ferred to.)
and models and governs the words ac-

but may

tail, provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persors seized of an estate of feesimple in right of their churches, which extends not to parsons and vicars, may (without the concurrence of any other person) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding.P 1. The lease must be by indenture, and not by deed-poll or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time." 3. If there be any old lease in being, it must first be absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty-one years, or three lives, and not for both. 5. It must not exceed the term of three lives, or twenty-one years,

be for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor can not resort to them to distrain.9 7. It

must be of lands and tenements most commonly letten for [320] twenty years past; so that if they had been let for above half

the time (or eleven years out of the twenty), either for life, for years, at will, or by copy of court roll, it is sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here

given. Disabling Next follows, in order of time, the disabling or restraining Eliz., c. 19. statute, 1 Eliz., c. 19 (made entirely for the benefit of the suc

cessor), which enacts, that all grants by archbishops and bish

statute, 1

p Co. Litt., 44.

astical or eleemosynary corporation, and 9 But now, by the statute 5 Geo. III., the successor shall be entitled to recorc. 17, a lease of tithes or other incorpo- or the rent by an action of debt, which real hereditaments, alone, may be grant- (in case of a freehold lease) he could ed by any bishop, or any such ecclesi- not have brought at the common law.

(36) By various acts of Parliament, consequence, these were leases in reand also frequently by private settle- version, and void. (See Cro. Jac., 258; ments, a power is granted of making 1 Buls., 177 ; 1 Rol. Rep., 387; 3 Buls., leases in possession, but not in rever- 204; Co. Litt., 46, b.) But this ques. sion, for a certain time; the object be- tion having been brought again before ing, that the estate may not be encum- Lord Mansfield and the Court of King's bered by the act of the party beyond a Bench, it was established that from the specific time. Yet persons who had day might either be inclusive or excluthis limited power of making leases in sive of the day; and, therefore, that it possession only, had frequently demised ought to be construed so as to effectuate the premises to hold from the day of the these important deeds, and not to de date; and the courts, in several instan- stroy them. (Pugh v. Duke of Leeds, ces, had determined that the words Cowp., 714; Freeman v. West, 2 Wils., from the day of the date excluded the 165.) – [Christian.] (Vide ante, p. day of making the deed; and that, of 140, n. 2.)

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