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$ 2. The original conveyances deriving their effect from the common law, are, 1, A feoffment. 2, A gift. 3, A grant. 4, A lease. 5, An exchange. 6, A partition. The derivative conveyances are, 1, A release. 2, A confirmation. 3, A surrender. 4, An assignment. 5, A defeazance. Deeds which operate to charge or discharge lands are, 1, A bond. 2, A recognizance. 3, A defeazance on a bond.
S 3. A feoffment, feoffamentum, is a substantive Of a Feoffderived from the word feoffare, or infeudare, to give i Inft. ga, one a fief or feud ; and therefore a feoffment was properly, donatio feudi, and Lord Coke says, the ancient writers called a feoffment donatio, from the verb do or dedi, which is the aptes word of feoffment.
per and original f. 21.
S 4. A feoffment is evidently taken from the breve testatum of the feudal law, and the proper and original Ante ch. s., meaning of the word feoffment was, the gift of a feud. But by custom it came afterwards to signify a gift of a free inheritance or liberum tenementum, to a Mad. Form
Differt. 4. man and his heirs, respect being had, rather to the Dit perpetuity of the estate granted, than to the tenure.
S 5. A charter or deed of feoffment must be sealed and delivered in the same manner as other deeds. And although no technical words are necessary to constitute a feofsment, yet the proper and usual words are, give, grant, and enfeoff. .
5 6. A feoffinent can only be made of corporeal Inst. 9° hereditaments of which the actual poffeffion may be 49 €.
delivered to the feoffee ; and therefore corporeal here. ditaments are frequently spoken of in law by the name of things that lie in livery.
$7. The mere figning and sealing a deed of feoffment, was, however, in no instance fufficient to transfer an estate of freehold from one person to another, unless the possession was formally delivered by the feoffor to the feoffee, which was called livery of feifin, and without which a deed of feoffinent only passed an estate at will; and this still continues to be the law.
$ 8. Livery of seisin is in fact exactly similar to the investiture of the feudal law, and was adopted in England for the same reason, namely that the pro
prietor of each piece of land fhould be publicly 5 Rep. 84. 6. known, in order” that the lord' might be always Plowd. yoz.
certain on whom he was to call for the military
át were due for the land; and that strangers might know against whom they were to bring their pracipes.
Lit. f. 418. Perk. s. 226, 227.
$ 9. Where the lands comprised in a feoffment are all situated in the same county, 'though in different vills, livery of feisin of those within one vill, in the name of all, will be good. But where the lands lie in different counties, there must be a livery in each county ; unless they are all comprised within a manor, for there livery of the manor in one of the counties will be sufficient.
$ 10. As
§ 10. As livery of seisin is the delivery of the Bettilworth's
Cale, actual possession, it follows that no person can give z Rep. 31 b. livery of seisin who has not at the moment the actual poffeffion. And therefore where a person makes a feoffment of lands which are let on leafe, he must obtain the assent of the lessee to the livery. And in cases of this kind the practice formerly was, for the lessee to give up the possession for a moment to the Jeffor, in order to enable him to give livery,
$ 11. Livery of seisin is of two kinds, livery in i Inft. 48 e. deed, and livery in law; livery in deed is the actual delivery of the poffession, where the feoffor comes himself upon the land, and taking the ring of the door of the principal messuage, or a turf or a twig, delivers the same to the feoffee in the name of seisin. Or it may be made by words only without the delivery of any thing, as if the feoffor be upon the land, or at the door of the house, and says to the feoffee, I am content that you should enjoy this land according to Sharp's Cale,
6 Rep. 26. the deed, this is a good livery to pass the freehold. For the charter of feoffment makes the limitation of the estate, and then the words spoken by the feoffor on the land, are a sufficient indication to the people present of the change of the possession,
$ 12. If a man merely delivers a deed of feoffment on the land, this will not amount to livery of seisin, for it hath another operation to take effect as a deed ; þut if the feoffor delivers the deed upon the land in Through. the name of seisin of all the lands contained in the good's Care
9 Rep. 136, deed, this will be a good livery,
$ 13, Livery
1 Int. 48 b.
$13. Livery in law is where the feoffor is not actually on the land, or in the house, but being in sight of it, says to the feoffee, I give you yonder house or land, go and enter into the fame and take poffesfion of it accordingly. This sort of livery seems to have been made at first only at the courts baron, which were anciently held in the open air, on fomě fpot in the manor, from whence a general view might be taken of the whole; and the pares curiæ could easily distinguish the land which was to be transferred,
$ 14. Livery in law does not however transfer the freehold until an actual entry is made by the feoffee, because the possession is not delivered to him, but only a licence or power given him by the feoffor to take possession; and therefore if either the feoffor or feoffee die before an entry is made under the livery thus given, it becomes void,
$ :5. A man ană a woman were joint-tenants in fee, ana ine woman made a livery in view to the man by the words-Go and enter into possession, but before it was executed the married the feoffee.
It was argued that this feoffment was void, because there was no actual entry pursuant to the livery, and that by the subsequent marriage, the feoffee was seised in right of his wife, and could not by his entry work any prejudice to her right. But it was adjudged that he might enter at any time; for he had not only an authority fo to do, but an interest passed by the livery
ip view, by which act the woman did all which was in her power to do,
$ 16. If in a case of this kind the fęoffee dare not 1 Inft 48.6. enter upon the land, without endangering his life, hę must claim the land as near as he may safely venturę to go, and this will be sufficient to vest the possession in him, and to render the livery within view perfect and complete ; for no one is obliged to expose his life for the security of his property. But when he has gone as far as he may with safety, the law very reasonably looks on such intention to be as effectual as the act itself. For otherwise it might be in the power of a stranger by an act of violence of his own, to deprive another of his right, and thereby to derive an advantage from an unlawful act.
$ 17. Livery of seisin may be given and received by Lit. f. 66. attorney, but the authority to give or receive livery i loft. 52 4. must be by deed, that it may appear to the court that the attorney had a power to represent the parties, and that such power was properly pursued.
S 18. A deed of feoffment was made to three, Norris v. habendum to two for their lives, remainder to the third Trift, ,
r 2 Mod. R.78. for his life; and livery of feisin was made to all three fecundum formam charta. The question was, whether livery so made, as if they had all estates in possession, whereas in truth one of them had but an estate in remainder, was good. The court was of opinion that the livery was good to two for their lives, remainder to the third. And the Chief Justice said,