« PreviousContinue »
that whatever the ancient opinions were about pursu.
§ 19. Livery of seifin under a power of attorney must be made during the lifetime of the feoffor; for the power ceases by his death." ..
Jackson v. $ 20. A court of equity will presume livery of Jackson, seisin to have been made, though not indorsed on the Fitzg. R.146.
deed, where the possession has gone according to the Burgh v. feoffment for a great length of time; and in some Francis, Fin. 28. 174. cases has even supplied the want of livery: Who may $ 21. All those who are capable of conveying their convey by
lands by deed, may make a feoffment: and some Feoffment.
persons may bind themselves to a certain degree by feoffment, though not by any other kind of deed.
Lit. 1. 406.
S 22. Thus if an idiot or lunatic make a feoffment, and give livery of seisin in person, it will bind him, so that he cannot by any process or plea avoid it, and restore himself to the possession. The reason is, because the livery being formerly made before the pares curia, their folemn attestation of the change of pofseffion could not be defeated by the person himself, it
being presumed that they were competent judges of the feoffor's ability to make the feoffinent.
$ 23. If an infant makes a feoffment and gives livery of seisin in person, it is not void, but only voidable ; for there must be some act of notoriety to restore the possession to him, equal to that by which he transferred it,
$ 24. Where an infant, idiot, or lunatic, made a Whitting feoffment and delivered seisin in person, it was held ban
8 Rep. 42. that it barred the lord of his escheat; for though it 4 Rep. 125 a. might have been avoided by the heir of the infant, Tit. 20.1.18. idiot, or lunatic, because he was privy in blood, yet it could not be avoided by a person who was only privy in estate.
S 25. But if an idiot, lunatic, or infant, executes 4 Rep. 125 a. a feoffment, and a power of attorney to give livery of seifin, and livery is given accordingly, the whole is void ; because the power of attorney is void.
§ 26. A feoffment cannot be made to commence A Feoffment in futuro, and therefore if a person makes a feoffment cannot com
mence in to commence on a future day, and delivers seisin im- futuro.
i Inft. 217. a. mediately, the livery will be void, and nothing more 2 Will. R. than an estate at will passes to the feoffee. This doctrine 166. is founded on two reasons, ift, Because the object and design of the ceremony of livery of seisin would fail, if it were allowed to pass an estate to commence in futuro; as it would in that case be no evidence of the change of posseffion. 2d, The freehold would be
Tit. 1. f. 47. in abeyance which is never allowed where it can, by
any means, be avoided.
Lit. s. 60.
$ 27. An estate may, however, he created by feoffnient to commence in futuro, by way of remainder; as where a lease is made to A. for three years, remainder to B. in fee. Here livery of seisin must be given to A. by which means the freehold is imme. diately created, and vested in B. during the contipuance of A.'s estate for years.
Operation of a Feoffment.
I Inft. 9a.
$ 28. The operation of a feoffment is in some instances stronger than that of any other conveyance. Thus Lord Coke says that a feoffment, “ cleareth all “ diffeisins, abatements, intrusions, and other wrong“ ful or defeasible estates, where the entry of the “ feoffor is lawful; which neither fine, recovery, nor “ bargain and sale by deed indented and inrolled, “ doth."
Transfers the Freehold by Difreisin.
S29. The most fingular and powerful effect of a feoffment is, that it operates on the possession, with. out any regard to the estate or interest of the feoffor ; so that to make a feoffment good and valid, nothing is wanting but possession. Thus Littleton says that if a tenant for life, or years, makes a feoffment in fee with livery of seisin, it will give an estate in fee, and operate as a difseisin of the real owner.
$611.698. 2 Inft. 244.
$ 30. The principles upon which this doctrine is 1 Ink. 330 b. founded, are thus explained by Mr. Butler. By the old law no person who had an estate of less duration
and extent than for his own life, or for the life of another, was considered as a freeholder; and none but a freeholder was deemed to have possession of the land. It is true that estates were sometimes held for years; in that case the possession of the tenant for years was considered to be the possession of the freeholder, but still the tenant for years held the possession, though he held it for the freeholder, and the freeholder by trust. ing the termor with it, exposed himself to lose it by the termor's negligence or treachery. If the termor left the possession vacant, if he permitted himself to be diffeised of it, if he undertook to alien it, either by act in pais, or by matter of record, if he claimed the fee, or if he affirmed it to be in a stranger; in all these cases the freeholder exposed himself to the loss of the possession, as much as if they were his own acts. Thus the termor held the possession, but he was faid to hold it nomine alieno, in contradistinction to the freeholder himself, who was said to hold it nomine proprio. Hence Britton expressly defines an estate of freehold to be “ The poffession of the soil by the Ch. 52. “ freeholder ;” and the author of Doctor and Student B. 2. D. 2x fays, that the possession of the land is called in the law of England the franktenement or freehold; so nearly fynonymous in those days were the words poffeffion and freehold. In this manner the possession of a termor differed from that of a mere bailiff, who had no possession.
· S 31. The same principles obtained respecting the Idest.
called by the law writers, livery of seifin, the freehold could be transferred by no other means. But, here, a difference is to be observed, with respect to the effect of the livery of a tenant for years, and the livery of a mere bailiff. On account of the folemnity upon which the entry of the tenant for years was grounded, the connection between him and the reversioner, and his actually holding possession of the land, (though he held it for the freeholder), the livery of the former was a transfer of the possession and fee-simple, but that of the latter had no effect. Thus, by the old law, on the one hand, the freehold could not be transferred but by livery of seisin ; on the other, livery of feisin could not be made by any person who had the possesfion, without transferring the fee-simple.
Taylor v. Hurde.
The doctrine above stated has been, in some respects, denied in a modern case ; of which, an account will be given in Title 36. Recovery.
S 32. A feoffment by a tenant in tail, who is Creates a Discontinue actually seised by force of the intail, creates a disconance. I Inft. 3276. tinuance of the estate tail, by transferring to the feoffee
not only the possession, but also the right of possession, Tit. 29. c. 1. so as to take away the right of entry of the issue in tail,
and of the persons in remainder and reversion, and to drive them to their real action.
And alfo a - S 33. A feoffment by a particular tenant will create Forfeiture. a forfeiture of his estate, because it transfers the feea Tit. 3. f. 97. fimple, and devests the remainder or reversion.
$ 34. A gift