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."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, "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, 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 seizin. e 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 seizin; without which the feoffee has but a mere estate at will. 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 in 66 See Appendix, No. I. d Co. Litt., 9. e Litt., § 70. strictness, the word is not applicable unless an estate in fee-simple passes; where the conveyance is merely of an estate for life, it is properly called a 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:"f and an estate was then only perfect when, as the author of Fleta expresses it in our law, "fit juris et seisinæ conjunctio."s 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 person 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.1 f Wright, 37. § 5. 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- Symbolical livery. Yet, the corporeal tradition of lands being sometimes incon 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 remembrance 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 multi tude 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 be 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 cor m Ch. 4, v. 7. • Hickes, Dissert. Epistolar., 85. n Stiernhook, De Jure Sueon. 1. 2, 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.q30 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 | 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 given" for introducing the doctrine of 56 attornments. deed. 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 feoff P Co. Litt., 46. (30) This is still so in conveyances at common law, but it is otherwise in conveyances to uses under the statute. (1 Saund. on Uses, 3d ed., 128-9; 4 Taunt., 20; Willes, 682; 2 Wils., 75.) (31) But the authority given for this purpose should be by deed. And, whether given by the feoffor or feoffee, it must be completely executed or performed in the lifetime of both the prin cipals; for if he who has given the au- And then the ment or lease on which livery is to be made. 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.w 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 ;x" 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 investituræ 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. (32) It is not necessary that the house should be empty; it is sufficient that the possession be vacant, or that the livery be made with the consent of the persons in possession. The accidental presence of a stranger not belonging to the family of the person in possession, and not meaning to defend the possession, is immaterial. (Dig., 33, a, 362; Cro. El., 322; 2 Nev. & M., 508; 2 Cr., z See p. 307. M. & R., 120.) Of course, if a person enter wrongfully, his feoffment during the presence of the true owner is void (Perk., 45, A., 219.) (33) By the act of induction into a benefice, a parson is put into actual possession of a part for the whole. (2 B & A., 470.) |
