§ 2. The original conveyances deriving their effect from the common law, are, 1, A feoffment. 2, A gift. 3, A grant. 4, A leafe. 5, An exchange. 6, A partition. The derivative conveyances are, 1, A release. 2, A confirmation. 3, A furrender. 4, An affignment. 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 fubftantive derived from the word feoffare, or infeudare, to give one a fief or feud; and therefore a feoffment was properly, donatio feudi, and Lord Coke fays, the ancient writers called a feoffment donatio, from the verb do or dedi, which is the apteft word of feoffment,

Of a Feoff1

ment.

Inft. 94,

f. 21.

§ 4. A feoffment is evidently taken from the breve teftatum of the feudal law, and the proper and original Ante ch. 1.. meaning of the word feoffment was, the gift of a feud. But by custom it came afterwards to fignify a gift of a free inheritance or liberum tenementum, to a Mad. Form Differt. 4. man and his heirs, refpect being had, rather to the perpetuity of the estate granted, than to the tenure.

§ 5. A charter or deed of feoffment must be fealed and delivered in the fame manner as other deeds. And although no technical words are neceffary to conftitute a feoffment, yet the proper and usual words are, give, grant, and enfeoff.

§ 6. A feoffient can only be made of corporeal 1 Inft. 9 hereditaments of which the actual poffeffion may be 49 4.

Of Livery of
Seifin.

I Iuft. 48 a.

Rep. 84 b.

Plowd. Joz.

Lit. f. 418.

227.

delivered to the feoffee; and therefore corporeal hereditaments are frequently spoken of in law by the name of things that lie in livery.

§ 7. The mere figning and fealing a deed of feoffment, was, however, in no inftance fufficient to transfer an estate of freehold from one person to another, unless the poffeffion was formally delivered by the feoffor to the feoffee, which was called livery of feifin, and without which a deed of feoffment only passed an estate at will; and this ftill continues to be the law.

§ 8. Livery of feifin is in fact exactly fimilar to the inveftiture of the feudal law, and was adopted in England for the fame reason, namely that the proprietor of each piece of land fhould be publicly known, in order that the lord might be always certain on whom he was to call for the military fervices that were due for the land; and that strangers might know against whom they were to bring their præcipes.

$9. Where the lands comprised in a feoffment Perk. f. 226, are all fituated in the fame county, though in different vills, livery of feifin 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 fufficient.

4

$ 10. As

Cafe,

§ 10. As livery of feifin is the delivery of the Bettifworth's actual poffeffion, it follows that no perfon can give 2 Rep. 31 b. livery of feifin who has not at the moment the actual poffeffion. And therefore where a perfon makes a feoffment of lands which are let on leafe, he must obtain the affent of the leffee to the livery. And in cafes of this kind the practice formerly was, for the leffee to give up the poffeffion for a moment to the leffor, in order to enable him to give livery.

§ 11. Livery of feifin is of two kinds, livery in 1 Inft. 48. deed, and livery in law; livery in deed is the actual delivery of the poffeffion, where the feoffor comes himfelf upon the land, and taking the ring of the door of the principal messuage, or a turf or a twig, delivers the fame to the feoffee in the name of feifin. 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 fays to the feoffee, I am content that you should enjoy this land according to the deed, this is a good livery to pafs the freehold. For the charter of feoffment makes the limitation of the estate, and then the words fpoken by the feoffor on the land, are a fufficient indication to the people prefent of the change of the poffeffion,

§ 12. If a man merely delivers a deed of feoffment on the land, this will not amount to livery of feisin, for it hath another operation to take effect as a deed; but if the feoffor delivers the deed upon the land in the name of feifin of all the lands deed, this will be a good livery, H4

contained in the

$ 13, Livery

Sharp's Cafe,

6 Rep. 26.

Throughgood's Cafe, 9 Rep. 136,

S13. Livery in law is where the feoffor is not actually on the land, or in the house, but being in fight of it, fays to the feoffee, I give you yonder house or land, go and enter into the fame and take poffeffion of it accordingly. This fort of livery feems to have been made at first only at the courts baron, which were anciently held in the open air, on fomé fpot in the manor, from whence a general view might be taken of the whole; and the pares curia 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 poffeffion is not delivered to him, but only a licence or power given him by the feoffor to take poffeffion; 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 and a woman were joint-tenants in fee, and the woman made a livery in view to the man by the words-Go and enter into poffeffion, but before it was executed fhe 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 fubfequent 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

in view, by which act the woman did all which was in her power to do,

§ 16. If in a cafe of this kind the feoffee dare not 1 Inft 48.6. enter upon the land, without endangering his life, he muft claim the land as near as he may fafely venture to go, and this will be fufficient to veft the poffeffion in him, and to render the livery within view perfect and complete; for no one is obliged to expofe his life for the security of his property. But when he has gone as far as he may with fafety, the law very reafonably looks on fuch 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.

1 Inft. 52 a.

S 17. Livery of feifin may be given and received by Lit. f. 66. attorney, but the authority to give or receive livery must be by deed, that it may appear to the court that the attorney had a power to represent the parties, and that fuch power was properly pursued.

§ 18. A deed of feoffment was made to three, habendum to two for their lives, remainder to the third for his life; and livery of feifin was made to all three fecundum formam charta. The question was, whether livery fo made, as if they had all eftates in poffeffion, 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,

that

Norris v.
Trift,

2 Mod. R.78.