Forfeiture.

upon the land but his cattle; they will not keep
his possession, nor prejudice the livery of seisin,
though he did not consent to the livery (15).]

If a lease be made of one acre to one, and
another acre to another, and the lessor make a
feoffment of both these acres, and make livery in
one of them in the name of both acres; this is no
good feoffment for the other acre; for by this
livery he [the lessee of the other acre] is not put
out of possession of that acre. [This will be a
great impediment to the attempt to introduce
feoffments into general practice; since there must
be as many liveries as there are tenants of different
tenements.] So if one make a feoffment of two
manors, the one in possession and the other in
lease, and give livery of seisin of the manor in
possession in the name of both the manors; this
is not a] good feoffment for the other manor, nei-
ther will it pass by this feoffment [as a feoffment.
But if livery had been made of the manor in lease
with consent of the tenant, and in the name of both
manors, this livery would have been effectual for
both manors.] So if one make a lease for years
of a house, and after make a feoffment in fee of the
house and of a close adjoining, and give livery of
seisin of the house, the termor's wife and children
being then in the house, [and the livery is without
the consent of the tenant;] in this case this is no
good livery, neither to pass the house nor the close;
[for want of possession of the lands in lease, since in
construction of law the possession remained in the
lessee; and, as a consequence, the livery was ac-
tually void, and therefore did not pass the close;
though actual livery of the close, on the close,
would have been effectual.]

21 H. 7. 7.

Dyer, 18.

If lessee for life, or years, make a feoffment of Perk. Sect. 222. the land, the lessor being then upon the land and Dyer, 362. not contradicting it; it seems this is a good feoffment, and that the presence of the lessor upon the land, especially if he do not contradict it, will not hinder the virtue of the feoffment as against the feoffor and all others; but the lessor may enter

(15) Lord Coke's words are," if the lessee be absent, and hath neither wife nor servants (though he hath cattle) upon the grounds," the livery of seisin shall be good, Co. Lit. 48b; but if lessee consents, though he be upon the ground, livery is good. Tr. 40th Eliz. Shephard and Gray. See further in note 8. to 13th edition, Co. Lit. 48 b.

Perk. Sect. 223.

Perk. Sect. 220.

Perk. Sect. 219.

afterwards for the forfeiture, notwithstanding, if he
please. [As the lessee is in possession the feoff-
ment is good, notwithstanding the lessor contra-
dicts the livery; indeed, unless the feoffment was
good, no right of entry for a forfeiture would ac-
crue. See Perk. § 222. All therefore what Per-
kins means to assert is, that the feoffment remains
good only for an instant, since the contradiction of
the lessor amounts to an assertion of his right to enter
for the forfeiture, and by disclaiming the tenancy,
vests the possession of the land in himself.]

If the husband alone make a feoffment of the Husband & wifeland he hath in the right of his wife, or that he *P. 208. hath jointly with his wife, his wife being then upon the land and disagreeing to it; in this case the feoffment is good [and binding] against the feoffor and all others, but the wife; who, notwithstanding her presence and disagreement, [or even though she agreed, for her agreement is void,] may after his death avoid it [by action at the common law, and now, since the statute of Hen. 8, by entry; so her heir may enter after her death. It must be remembered that the husband is seised in right of his wife, and that his conveyance or grant, at least his feoffment, passes the fee, subject only to be avoided by the entry or claim of the wife. For the same reason, the lease of the husband of lands of his wife doth not determine by his death. It continues till avoided by the entry of the wife or her heirs. However, in Doug. p. 329, it was held, that the husband and wife were seised in right of the wife.]

If one joint-tenant make a feoffment of the whole Joint-tenant. land, his companion being then upon the land; by this [feoffment] there doth pass no more but [viz. than] a moiety, and the feoffment is void as to the moiety of his companion, for the feoffment doth not give his moiety (16); [for as to the other moiety, he has not the possession; therefore, as to that moiety, the livery is void. When the other joint-tenant is not on the land, the feoffment will amount to a disseisin.]

If a man enter into my land by wrong, and make a feoffment of it to a stranger, I being then upon the land; this feoffment is void, for in this case the law doth adjudge me to be always in, and

(16) Ante, p. 205.

Prerogative.

Outlawed per

sons.

4. In respect of the manner of making of it.

Reversion.

never out of, the possession. [The general rule is,
that when two persons are in possession, and one
alone is entitled to the possession, the law adjudges
him alone to be in possession who is entitled to
the same.]

Bro. Feoffment, 3. 17.

21 H.7. 7. 2 H. 6. 5.

1

H. 7. 5.

Stamf.

prer.

Regis, 40.

If the king have any possession of the land by Perk. Sect. 219. wardship or otherwise, the owner of the land can make no feoffment of it. And therefore if the king be entitled to land by wardship, or primer seisin, after office found, after the death of an ancestor of one of his tenants; in this case, it is said, the feoffment of the heir is void and passeth nothing, for the king is still in possession. And if it be before office found it will be all one, for the office shall relate to the death of the ancestor. And yet in these cases the feoffment is good against the heir himself, and all others, besides the king. If the heir, before office found, enter and make a feoffment, and then the king doth pardon the feoffee; in this case the feoffment is good. And yet such a feoffment, after office with a pardon, is, [for want of possession,] void. And the like law is if the entry be before office, and the pardon [read, feoffment, and query,] after the office; for this is void also. But if a man be outlawed for debt or trespass, and thereupon the king hath the profits of the lands; in this case the owner, [being in possession,] may make a feoffment of this land notwithstanding.

See Grant,

Numb. 4.

Divers persons cannot make a feoffment, but it Fitz. Faits and must [except it] be by deed, as corporations, and Feoffments, 32. such like. [This proposition is not intended to be applied to individual persons, but to collective bodies only. Joint-tenants, for instance, may jointly or severally make livery without any deed:] also divers things cannot be granted by a feoffment, but the feoffment must be by deed, for a feoffment cannot be made of a reversion of land; but it must be by deed. [Query, if the livery does not inclusively carry the reversion, though it cannot, without deed, carry the services; and it should seem several estates, &c. may be granted by feoffment, without any deed, so as there be, in conformity with the statute of Frauds and Perjuries, a writing.] But a lease may be made of land to one for life, the remainder to another in fee, and this may be done without any [deed or] writing; [and, at the com

may

mon law,] by word only (17.) Also a feoffment
be made of the moiety, third, or fourth part
of a manor, or of a piece of land, without deed.
And yet, if one be seised of a manor, whereunto
an advowson is appendant, and he make a feoff-
ment of three acres, parcel of the manor, together
with the advowson to two men, habendum the one
moiety, with the advowson to one of them, and the
other moiety to the other; in this case the feoff-
ment cannot be well made, unless it be by deed, [so
as to pass the advowson.]

If a lease be made for five years, on condition that if the lessee pay to the lessor, within the two first years, 107., then that he shall have the land *P. 209. to him and his heirs, or otherwise but for five years; in this case, if livery of seisin be made to the lessee before his entry, this is a good feoffment. Et sic de similibus. [And in that case the lessee has the fee immediately; but if no livery be made, then he has a term to be enlarged, on a contingency or condition, into a fee.

Every feoffment, also, whether it be made by Livery of seisin. deed or without deed, must be made with livery of seisin; and this livery of seisin must be made according to the rules of livery and seisin hereinafter laid down, for this is of the essence of a feoffment; and a feoffment is not accounted perfect until livery of seisin be made, for until then the feoffee, [though he enter,] hath only an estate at will in the land, and the feoffor may put him out when he will. And if either of the parties die before Equity. the livery of seisin be made, the feoffment is void; and no warrant of attorney, to make livery, can be executed after the death of the feoffor or feoffee, [for the authority is revoked by death ;] neither is

(17) By the statute of 29 Car. 2, c. 3, § 3, it is enacted, "That no leases, estates or "interests, either of freehold, or terms of years, or any uncertain interest, not being copy"hold or customary interest, of, in, to or out of any messuages, manors, lands, tenements, " or hereditaments, shall be assigned, granted or surrendered, unless it be by deed or note " in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorised, by writing, or by act and operation of law." And by the same statute it is enacted, "That all leases, estates, interests of freehold, or terms of years, or any uncertain interest, of, in, to or out of any messuages, manors, &c. made or created by livery and seisin only, or by parol, and not put in writing, and signed by the "parties so making or creating the same, or their agents thereunto lawfully authorised by "writing, shall have the force and effect of leases or estates at will only, and shall not, "either in law or equity, be deemed or taken to have any other or greater force or effect; any consideration for making any such parol leases or estates, or any former law or usage "to the contrary notwithstanding."

5. Livery of seisin. Quid.

there any remedy in this case, to get the assurance
to be made perfect, but in a court of equity (18),
[unless there be a deed, and the deed may operate
as a grant.] But in case where there are many
feoffees, [who are to be joint-tenants,] there the
death of one or some of them will not hinder the
livery, but it may be made to him or them that do
survive. [But if the feoffees are to be tenants in
common, the livery will be void as to the shares of
those persons who die before livery. The like ob-
servation, mutatis mutandis, is applicable to several
feoffors by attorney:] we must see therefore, in
the next place, what this livery of seisin is.

Livery of seisin, or giving of possession, is a New terms of [feudal] solemnity, or overt [viz. open and noto- the law. rious] ceremony, required by law, and used for the passing of [the immediate freehold of] lands or tenements corporeal, as an evidence or testimonial of the willing departing by him that makes the livery, from the thing whereof livery is made, and the willing acceptance thereof by the other party (19). And this is as ancient as a feoffment; West. 2 part, for no feoffment is made without livery of seisin, Co. super Lit. albeit livery of seisin be sometimes made upon 48. other conveyances, [as a gift in tail and a lease for life.] And it was first invented, [even before writing was in general use,] as an open and notorious act to this end; and that by this means the

Symb. Sect. 251.

(18) In the case of Jackson v. Jackson, heard in November 1730, a deed of lands in two different counties, by way of feoffment; livery and seisin of the lands in one county only indorsed. The deed was made in 1657. Lord Chancellor King declared the plaintiff had a good foundation to apply to a court of equity, as he had not his evidences to try his title at law that were he to try the matter (at law), he should presume, and so direct, that livery was executed according to the deed, after that length of time; but that, however, a court of equity would aid a defect of that kind. Fitz. Gibb. Rep. 146. S. C. in select Cases in Chancery, 81. See also Bokenham v. Bokenham, 1 Chan. Ca. 240. And where such a defective conveyance is aided, it shall be discharged of mesne incumbrances by the party, [except against purchasers for a valuable consideration, without notice ;] as, if a mortgage wants livery, and thereupon the heir confesses judgments to another, the mortgagee shall be released and discharged from the judgments, [for a judgment creditor is not considered as a purchaser for a valuable consideration, within the rule respecting notice.] Burgh v. Burgh, Rep. in Chan. Temp. Finch, 28. The assistance and relief, afforded by a court of equity, in aid of a defective conveyance, is very extensive; it will remedy not only mistakes in form or upon the face of the deed, but will supply the material part or essence of a conveyance, as livery to a feoffment, a surrender of a copyhold, &c. In what cases, and in what manner, equity will supply defective conveyances, see in Com. Dig. Chancery (2 T.) Copyhold (P. 2.) Eq. Ca. Abr. Deeds (D.) Vin. Abr. Faits (T. a.)

(19) Seisin is a technical term, to denote the completion of that investiture, by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. Per Ld. Mansfield, 1 Burr. 107. For the original intent and manner of trans ferring lands by livery of seisin, see Spel. Gloss. 510. Mad. Form. Angl. Dissert. 9.