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$ 34. A gift, donatio, is properly applied to the Of a Gift. creation of an estate tail, as a feoffment is to that of 2 Com. 316. an estate in fee-fimple. It differs in nothing from a feoffment, but in the nature of the estate passing by it, and livery of seisin must be given, to render it effe&tual.
S 35. A grant is a conveyance so far fimilar to a Of a Grant. feoffment, that the operative words are dedi et conceffi, given and granted. And as a feoffment was the re- i Inft. 96 gular mode of conveying corporeal hereditaments, fo, 172 € a grant was the proper mode of conveying incorporeal hereditaments. Hence the expression, that advowsons, rents, commons, &c. lie in grant.
S 36. As the objects of a grant are not capable of corporeal delivery, it follows, that livery of seisin cannot be given upon a grant; but still it was always held, that a grant, accompanied with the attornment of the tenant, was equally valid with a feoffment and livery of seisin.
S 37. Although a feoffment might formerly have been made by parol only, yet a grant could not, in general, be made without deed ; because, as the possession of those things, which were the subject matter of a grant, cannot be transferred by livery, there could be no other evidence of a grant but the deed.
$ 38. By the old law, no grant was good without the attornment or consent of the tenant, but, now, the necessity of attornment is taken away.
S 39. The
No technical § 39. The proper and technical words of a grant Words aecel are, dedi ét concessi, hath given and granted; but any fary. 1 Inft. 147 a. other words that shew the intention of the parties,
Will have the same effect.
Holmes v. S 40. A. entered into an article with B., by whicfr Sellers, 3 Lev. he agreed, that, in consideration of a certain rent, 305.
B. should have a way for himself and his heirs over certain lands of A. This was held to be a good grant of a right of way, and not merely a covenant for enjoyment.
Who may convey by Grant.
$ 41. Every person who has a prefent estate or interest in lands, in remainder or reversion, may convey it away by grant, because estates in remainder and reversion consist in right only. So every one may grant away any incorporeal hereditament, such as an advowfon, a rent, common, &c. But a bare right or pofsibility cannot be granted.
Peik. s. 65.
S 42. A person cannot, however, grant or charge that which he hath not; and, therefore, if a man grants a rent-charge out of the manor of Dale, when, in truth, he hath nothing in the manor, and afterwards purchases it, he thall hold it discharged from this
Operation of a Grant.
S 43. As to the operation of a grant, it is materia ally different from that of a feoffment, for, we have feen, that a feoffment operates immediately on the possession, without any regard to the estate or interest of the feoffor. But a grant only operates on the estate
of the grantor, and will pass no more than what the grantor is by law enabled to convey. This rule, probably, arose from the circumstance, that a grant being always made by deed, the estate of the grantor might be known by inspection of the deed; and, if the estate granted was greater than the estate which the grantor had, it was merely void, and the grant only passed as much as the grantor could really give.
S 44. Lord Chief Baron Gilbert seems to have been Ten. 12a. of opinion, that the reason why a grant pafíes no more than the grantor can lawfully give, is, because it is a secret conveyance, and therefore ought not to be allowed to have so extensive an operation as a feoffment, in which livery of seisin is publicly given.
S 45. A grant cannot, in any case, operate as a i Inft. 327 b. discontinuance : but this is rather owing to the nature of the things which are the subject matter of the grant, than to the grant itself ; for the subject matter of grants being rights only, they cannot, from their nature, be discontinued.
S 46. If, therefore, a tenant in tail of a rent, ad. Lit. f. 627;, vowson, common, or of a remainder or reversion, ex. pectant on an estate of freehold, makes a grant in fee, this is no discontinuance of the estate tail, for nothing passes but during the life of the tenant in tail, which is not unlawful.
$ 47. It follows, from the fanje principle, that a 1 Inf. 251 b. grant can in no instance operate as a forfeiture: for a
grant cannot prejudice the person in remainder or re. version, because, if the grantee should claim a greater estate than the grantor can lawfully give, he could make no title to it without the original grant made to his grantor ; by which, it must appear what interest he had, and, consequently, what estate he could convey; and so the grantee, notwithstanding his grant in fee, could claim no greater estate than his grantor had power to make, and, consequently, the person in reversion could not be prejudiced.
DE E D
$1. Description of
1 $ 20. Circumstances required in 3. No technical Words necef- ! these Leafes, P Jary.
41. Tenants for Life. 5. Must have a certain Begin 44. Tenants in Dower and by ning and Continuance
the Curtesy. 10. May determine on Breach of 45. Tenants for Years. a Condition.
47. Guardians in Socage. 11. Who may make Leafes. 48. Exécutors and Administra12. Joint-Tenants, Coparceners,
tors. and Tenants in common. 49. Who are incapable of mak13. Tenants in Tail:
ing Leafes. 17. Husbands feised Jure Uxoris. 50. Infants. 18. Ecclefiaftics Seifed Jure Ec 53. Married Women. clesiæ.
54. Of void and voidable Leases.
Section 1. A LEASE is a contract for the possession and profits Description
of lands and tenements on the one side, and a of. recompence of rent or other income on the other, or else it is a conveyance of lands and tenements to a person for life or years, or at will, in consideration of a return of rent, or other recompence.
S 2. Where a freehold estate is created by lease, Tit. 1. f. 19. livery of seisin must be given to the lessee. And where the lease is for a term of years, there must be an entry
mere must be an entry Vide Tit. 8. by the lessee.
ch. 1, f. 146