S 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 paffing by

it, and livery of seifin must be given, to render it effectual.

172 a.

S 35. A grant is a conveyance fo 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- 1 Inft. 94 gular mode of conveying corporeal hereditaments, fo, a grant was the proper mode of conveying incorporeal hereditaments. Hence the expreffion, that advowfons, 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 seifin 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 feifin.

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 poffeffion of those things, which were the fubject 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 confent of the tenant, but, now, the neceflity of attornment is taken away.

§ 39. The

No technical

Words necef

fary.

$ 39. The proper and technical words of a grant are, dedi et conceffi, hath given and granted; but any Inft. 147 a. other words that fhew the intention of the parties, will have the fame effect.

Holmes v.

305.

$ 40. A. entered into an article with B., by whicfr Sellers, 3 Lev. he agreed, that, in confideration of a certain rent, B. fhould 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.

Peik. f. 65.

Operation of a Grant.

§ 41. Every person who has a prefent eftate or interest in lands, in remainder or reverfion, may convey it away by grant, becaufe eftates in remainder and reverfion confist in right only. So every one may grant away any incorporeal hereditament, fuch as an advowfon, a rent, common, &c. But a bare right or poffibility cannot be granted.

$ 42. A perfon 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 fhall hold it discharged from this grant.

§ 43. As to the operation of a grant, it is materi ally different from that of a feoffment, for, we have feen, that a feoffment operates immediately on the poffeffion, without any regard to the estate or intereft of the feoffor. But a grant only operates on the eftate

of

of the grantor, and will pafs no more than what the grantor is by law enabled to convey. This rule, probably, arose from the circumftance, 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 paffed as much as the grantor could really give.

§ 44. Lord Chief Baron Gilbert seems to have been Ten. 123. of opinion, that the reason why a grant paffes no more than the grantor can lawfully give, is, because it is a fecret conveyance, and therefore ought not to be allowed to have fo extenfive an operation as a feoffment, in which livery of feifin is publicly given.

§ 45. A grant cannot, in any cafe, operate as a difcontinuance but this is rather owing to the nature of the things which are the fubject matter of the grant, than to the grant itfelf; for the fubject matter of grants being rights only, they cannot, from their nature, be difcontinued.

§ 46. If, therefore, a tenant in tail of a rent, ad vowfon, common, or of a remainder or reverfion, expectant on an estate of freehold, makes a grant in fee, this is no difcontinuance of the estate tail, for nothing paffes but during the life of the tenant in tail, which is not unlawful.

§ 47. It follows, from the fame principle, that a grant can in no inftance operate as a forfeiture: for a VOL. IV.

I

grant

grant cannot prejudice the perfon in remainder or reverfion, 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, confequently, what estate he could convey; and fo the grantee, notwithstanding his grant in fee, could claim no greater estate than his grantor had power to make, and, confequently, the perfon in reverfion could not be prejudiced.

A LEASE is a contract for the poffeffion and profits Defcription

of lands and tenements on the one fide, and a recompence of rent or other income on the other, or else it is a conveyance of lands and tenements to a perfon for life or years, or at will, in confideration of a return of rent, or other recompence.

of.

§ 2. Where a freehold estate is created by leafe, Tit. 1. f. 19. livery of feifin must be given to the leffee. And where

the lease is for a term of years, there must be an entry Vide Tit. 8. by the leffee.

ch. 1. f. 14.