3. Things necessarily requisite to

deed without any more, [except that at the common
law; and till the statute of 4 and 5 Ann, c. 16,
attornment was necessary for the perfection of
every grant;] and of this sort are rents, reversions,
[even of manors, houses, lands, &c.] services,
advowsons in gross, and the like; which things
cannot pass from man to man without deed; or
matter of record, which is of a higher nature than
a deed (1). And he that makes this grant is
called the grantor, and he to whom it is made
is called the grantee.

It is taken here in the largest sense as that
which doth comprehend both. And so some
grants are of the land or soil itself; and some are
of some profit to be taken out of or from the
soil, as rent, common, &c. And some are of
goods and chattels; and some are of other things,
as authorities, elections, &c. And they are made
sometimes by matter of record, and sometimes by
⚫ deed or writing in the country, and sometimes
by word without either. Some grants also tend
to charge the grantor with something he was not
charged with before; and some to pass something
out of him to the grantee; and some tend to
discharge the grantee of something wherewith he
was charged or chargeable before, and whereof he
is now hereby discharged (2).

Plow. 555

Regularly these things are requisite in every Co. 11. 73every good grant. good grant or gift: 1. That there be a grantor, donor, &c. and that he be a person able to grant, and not disabled by any legal or natural impediment. 2. That there be a grantee, donee, &c. Perk. Sect. 1. and that he be a person capable of the thing granted, and not disabled to receive it. 3. That

(1) On this difference between things corporeal and incorporeal, it hath been held, that there can be no discontinuance of things which lie in grant; and therefore if tenant in tail of a rent, advowson, common, or remainder or reversion expectant on a freehold, make a grant by deed or fine, or disseise the tenant of the land out of which the rent is issuing, whereof he is seised in tail, and make a feoffment with warranty, that these acts work no discontinuance of the intail, for nothing passes but during the life of the tenant in tail, which is lawful. Co. Lit. 327 b. 3 Co. 85 b. [This is not correct, see Machell v. Clarke, 2 Ld. Raym. 778. When the tenant in tail enters and disseises the freeholder, he gains a fee by wrong, though he does not discontinue the estate tail. So when he conveys his reversion by grant or lease and release, a determinable fee passes.] Also of things which may be transferred without the notoriety of livery of seisin, such as rents, advowsons, &c. which lie in grant, a man cannot by any act, [ciz. alienation in deed, as distinguished from an act on record,] in pais forfeit them. Bac. Abr. Grants. See further as to the nature of a grant in 2 Bl. Com. 317. Fin. Abr. Grants (A. 2.)

(2) See accordingly 1 Wood, 660. Shep. Law of Assur. 150.

there be a thing granted, and that the thing be such a thing as is grantable. [Or a charge created, or a duty, right or title discharged; or an obligation created, or an election or authority communicated.] 4. That it be granted in that order and manner that [viz. which the] law requireth; as where the thing is not grantable without deed, that it be done by deed. And if it be [granted] by deed, that the deed have apt words to describe and set forth the person of the grantor and grantee, and thing gated, &c.; and that all necessary circumstances, as sealing, and delivery, and livery of seisin, and attornment where it is needful, be observed. [The necessity of attornment is now superseded by the stat. of 4 and 5 Ann, c. 16. See chap. Attornment.] 5. That there be an agreement to, and acceptance of, the grant or thing granted by him to whom it is made; [a fact which is to be presumed till the contrary be shown. Thompson v. Leach, 3 Mod. 296.] And for default in either of these particulars a grant may be Bro. Grant, 89. void. In acquirendo rerum dominio scilicet quod donationes non valent licet sint inceptæ, nisi sint perfecta. But if grants be very ancient, and the things granted have been enjoyed according to the grant ever since the making of it; in this case the grant may be good, notwithstanding some legal defect in some of these particulars. [As absence of evidence of livery, &c. for, from possession, &c. livery, &c. will be presumed.]

Perk. Seet. 64.

4 H. 7. 17. Plow. 150. 16 H. 7. 3. Lit. Sect. 60.

said a good and

not.

ner of it; and may be

deed; or not; and how.

Corporations, as dean and chapter, mayor and 4 What shall be commonalty, and such like, regularly can neither sufficient grant, grant lands, goods, or chattles, but it must [read, gift, or sale; or except it] be by deed. But the grantees of such 1. For the manpersons, and all other common persons, may grant what or give any thing which doth lie in livery, as granted without manors, houses, lands, and such like things, in fee simple, fee tail, for life, for years, or at will, by Rents, services word, [now by writing duly signed, 29 Car. 2, c. 3.] without deed. And if a lease be made of any such thing for life or years, with a remainder over in fee simple, fee tail, or for life, it is good, albeit the same be done by word, [viz. writing duly signed,] without any deed in writing (3). [Omit,

&c.

(3) Before the statute 29 Car. 2, c. 3, for prevention of frauds and perjuries. That statute has been often referred to in the notes to this edition; and as that act passed since the third edition of the Touchstone (in 1651,) the student will therefore consider the altera

[Rent-charge for years.]

*P. 230.

Reversion or remainder.

[Rectory,] advowson, tithes, &c.

in writing. But a remainder when created, and
while it retains that quality, cannot be granted
without deed.]

Bro. Grant, 59

Such things as are said to lie in grant and not Co. super Lit. in livery, generally cannot be granted or given, perk. Sect. 61. 49. Dyer, 139had or taken, without deed; unless it be in some 60. 63. special cases (4). And therefore rents and services, and such like things which are in gross, and not incident to some other thing, may not be granted without a deed. And therefore if a rent-charge be granted unto me for years, I may not grant this rent over without deed. [And yet lands held for a term of years may, as to the term, but not as to rent or services, be transferred without deed.] And if there be lord and tenant of arable land by fealty, and the service of yielding the tenth sheaf of corn before [read, whenever] it be sowed; the lord cannot grant this service for years without deed. But if a rent or any service be parcel of, or incident to, a manor, or any other thing which is grantable without deed; in this case, by the grant of the principal by word, [read, livery evidenced by writing,] this thing may pass, as belonging thereunto, without any deed. Also rents or services may be granted upon a partition by one coparcener to another without deed (5).

*

A reversion cannot be granted [for an estate] in fee simple, fee tail, for life, or years, without deed; unless it be in case where it is parcel of a manor (6.) But a reversion may be granted upon a partition, by one coparcener to another, without any deed. And the same law is of a remainder [on a like partition.] And therefore if one make a lease for life or years to one, the remainder in fee simple, fee tail, or for life, to another, without deed, howsoever this be a good remainder in the first creation without deed, yet this remainder cannot, [while it is a remainder, and as already observed,] be granted over without deed.

Perk. Sect. 6r.
plow. 433.
Bro. Grant, 104

Dyer, 174.

15 H. 7. 8.

A parsonage or rectory, albeit it consist of 16 H. 7. 3.

tion made by that statute in the several parts of the Touchstone which treat of leases, (exceeding the term of three years,) grants, &c. being made by parol and without deed in writing, if the act is not particularly mentioned.

(4) Because of things which lie in grant no possession can be delivered; and they are not like corporeal inheritances, which pass by livery, and therefore he that claims them must show a grant of them, which he cannot do without deed.

(5) Accordingly Co. Lit. 169.

(6) 2 Roll. Abr. 62.

19 H. 8. 12. 21 H. 6. 43.

All this was agreed, 36 El. B. R.

Mich. 8 Jac.
Dr. Longworth's

case.

21 Ed. 3. 38. 11 H. 4. 3. Dyer, 29. 10. Co. 1. 1.

Plow. 150.

9 Ed. 4. 47.

Perk. Sect. 61.

tithes.]

nothing but tithes, and the like, besides the church
and church-yard, and it hath no house nor glebe
belonging to it, yet may be granted without deed
in fee simple, for life, or years; [consequently it
lies in livery, and is a corporeal hereditament ;] and
then the tithes and offerings will pass as incident.
[See page 213.] But the tithes alone, or a portion
of tithes, oblations, mortuaries, or obventions, are
not grantable, by themselves, without deed. And
therefore a lease parol of tithes, [i. e. a lease, not [Lease of
being by deed,] albeit it be but for years, is not
good. And if the parson agree with one of his
parishioners that he shall have his own tithes ;
this is not a good grant of the tithes, neither may
it be pleaded or used so; but perhaps by way of
agreement a parishioner may retain his tithes.
[This is constantly done, and is valid by way of
contract.] And if a lessee for years of tithes will [Retainer of
grant it over to another at will only, it cannot be
done without deed, as was held by Baron Denham,
2 Car. at Sarum Assizes. And yet it is held that
a parson may grant his tithes from year to year,
to him that is to pay them, without any deed, but
this is by way of retainer; [and the right to take
the tithes in kind will not arise till a half year's
notice has been given to determine the agreement.]
But this grant or agreement must be made to and
with the party himself that is to pay the tithe, and
not with another; neither can this interest be as-
signed, or a stranger take advantage of it, as hath
been agreed in the case of Hawkes and Brafield,
Pasch. 3 Jac. B. R.

tithes.]

An advowson in gross cannot be granted without deed; yea [indeed] the grantee of the grantee of an advowson is to show both the deeds. But an ad- [Partition.] vowson is grantable upon a partition between coparceners without deed. And an advowson incident to a manor, or piece of land, is grantable with the manor or land, [by livery and writing evidencing the livery,] without any deed. The next avoidance to [Next avoida church is not grantable without deed (7). Common of pasture, of estovers, turbary, fishing, Common of &c. cannot be granted [for an estate] in fee simple, fee tail, for life, or years, unless it be in case of

ance.]

pasture, &c.

(7) See accordingly in Cro. Eliz. 163, Crispe's case; Long and Hemming's case, 1 Leon. 207; Co. Lit. 332. 335; and Whistler's case, 10 Co. 63. See more amply how an advowson shall be granted, in Com. Dig. Advowson (C. 1.)

partition, or of appendancy, as incident to some *P. 231. corporeal thing, * without deed. And therefore if a man grant by word of mouth, [or writing, not being a deed,] to me common for twenty beasts in his manor; this is not good. Neither, if it be granted to me by deed, may I grant this over to another without deed. But if a man have common of pasture appendant or appurtenant to his land; in this case he may grant his land with the common appendant by word only, [viz. livery of seisin, evidenced by mere writing,] without any deed. FranFranchises and chises, as fairs, markets, courts, warrens, [i. e. the 15 H. 7. 8. such like things. franchise of a free warren, not the soil of a warren,]

[Common appartenant.]

[Hundred.]

[Profits.]

Things in action, and such like things.

[Condition.] [Election.]

Offees.
[Privileges.]

[Stewards.]

and the like, or the profits thereof, are not grant-
able without deed. But it seems a hundred, [not
being a mere franchise,] is grantable without deed;
for that, [like a manor,] is liberum tenementum.
The profits of a mill, county, ferry, corody, or the
like, are not grantable without deed.

Things in action, as a right or title of action that
doth only depend in action, and things of that
nature, as rights and titles of entry to any real or
personal thing, [or possibilities, or uncertain inte-
rests not vested, as contingent remainders, execu-
tory devises, &c.] are not grantable at all, but by way
of release to the tenant of the land, &c. by which
means it may be extinguished; but this [release] may
not be neither without deed. And therefore if a
man take my goods as a trespssaer, or I deliver
him my goods to keep, [query, in this case,] and
after I will give these goods to him; I cannot do
this without deed, [or accord and satisfaction.
But contingent remainders may be assigned in
equity, and devised at law; and choses in action, not
being titles of entry, as rights of action in or to
lands, may be transferred in equity. Equities of
redemption, on mortgages in fee, are also trans-
ferrable in equity.]

An election, condition, [see ch. Condition,] cove Dyer, 281.
nant, assent, licence, or liberty, cannot be created
and annexed to an estate of inheritance or freehold
without deed.

A privilege to hold land for life, [or years,] Co. 9. 9.
without impeachment of waste, is not grantable
without deed. Offices for the most part are not
grantable without deed. And yet some inferior
offices, as stewardships, bailiwicks, and the like,