1 Inft. 52 a. Jackson v. Burgh v. Fin. 28. 174. Who may convey by Feoffment. Lit. f. 406. a that whatever the ancient opinions were about purfu ing authorities with great exactness and nicety, yet this matter of livery upon indorsements of writing was always favourably expounded of later times, unless where it plainly appeared that the authority was not purfued at all. As if a letter of attorney was made to three jointly and feverally, two could not execute it, because they were not the parties dele. gated; they did not agree with the authority. $ 19. Livery of seifin under a power of attorney must be made during the lifetime of the feoffor; for the power ceafes by his death. § 20. A court of equity will prefume livery of seisin to have been made, though not indorsed on the deed, where the poffeffion has gone according to the feoffment for a great length of time; and in fome cafes has even fupplied the want of livery. A § 21. All those who are capable of conveying their lands by deed, may make a feoffment: and fome persons may bind themselves to a certain degree by feoffment, though not by any other kind of deed. § 22. Thus if an idiot or lunatic make a feoffment, and give livery of seisin in person, it will bind him, fo that he cannot by any procefs or plea avoid it, and restore himself to the poffeffion. The reafon is, because the livery being formerly made before the pares curia, their folemn atteftation of the change of poffeffion could not be defeated by the perfon himself, it being prefumed that they were competent judges of the feoffor's ability to make the feoffinent. S 23. If an infant makes a feoffment and gives livery of feifin in perfon, it is not void, but only voidable; for there must be fome act of notoriety to reftore the poffeffion to him, equal to that by which he transferred it, ham's Cafe, 8 Rep. 42. S 24. Where an infant, idiot, or lunatic, made a Whitting. feoffment and delivered feifin in perfon, it was held that it barred the lord of his escheat; for though it might have been avoided by the heir of the infant, idiot, or lunatic, because he was privy in blood, yet it could not be avoided by a person who was only privy in eftate. 4 Rep. 125 a. Tit. 30. f.18. § 25. But if an idiot, lunatic, or infant, executes 4 Rep. 125 a. a feoffment, and a power of attorney to give livery of feifin, and livery is given accordingly, the whole is void; because the power of attorney is void. cannot comfuturo. mence in § 26. A feoffment cannot be made to commence A Feoffment in futuro, and therefore if a perfon makes a feoffment to commence on a future day, and delivers feifin immediately, the livery will be void, and nothing more than an estate at will paffes to the feoffee. This doctrine is founded on two reafons, ift, Because the object and defign of the ceremony of livery of seisin would fail, if it were allowed to pafs an estate to commence in futuro; as it would in that cafe be no evidence of the change of poffeffion. 2d, The freehold would be I Inft. 217 a. 2 Wilf. R. 166. Tit. 1. f. 47. in abeyance which is never allowed where it can, by Lit. f. 60. Operation of a Feoffment. I Inft. 9a. Transfers the $611. 698. 2 Inft. 244. any means, be avoided. § 27. An eftate may, however, be created by feoffment to commence in futuro, by way of remainder; as where a leafe is made to A. for three years, remainder to B. in fee. Here livery of seifin must be given to A. by which means the freehold is imme diately created, and vested in B. during the contipuance of 4.'s estate for years. § 28. The operation of a feoffment is in fome instances stronger than that of any other conveyance. Thus Lord Coke fays that a feoffment, "cleareth all "diffeifins, abatements, intrufions, and other wrong"ful or defeafible eftates, where the entry of the "feoffor is lawful; which neither fine, recovery, nor “bargain and fale by deed indented and inrolled, "doth." § 29. The most fingular and powerful effect of a feoffment is, that it operates on the poffeffion, without any regard to the eftate or intereft of the feoffor; fo that to make a feoffment good and valid, nothing is wanting but poffeffion. Thus Littleton fays that if a tenant for life, or years, makes a feoffment in fee with livery of feifin, it will give an estate in fee, and operate as a diffeifin of the real owner. $ 30. The principles upon which this doctrine iş Inst. 330 b. founded, are thus explained by Mr. Butler. By the old law no perfon who had an eftate of lefs duration and and extent than for his own life, or for the life of an other, was confidered as a freeholder; and none but a freeholder was deemed to have poffeffion of the land. It is true that eftates were fometimes held for years; in that cafe the poffeffion of the tenant for years was confidered to be the poffeffion of the freeholder, but still the tenant for years held the poffeffion, though he held it for the freeholder, and the freeholder by trusting the termor with it, expofed himself to lofe it by the termor's negligence or treachery. If the termor left the poffeffion vacant, if he permitted himself to be diffeifed 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 expofed himself to the lofs of the poffeffion, as much as if they were his own acts. Thus the termor held the poffeffion, but he was faid to hold it nomine alieno, in contradiftinction to the freeholder himself, who was faid to hold it nomine proprio. Hence Britton exprefsly defines an eftate of freehold to be "The poffeffion of the foil by the "freeholder;" and the author of Doctor and Student fays, that the poffeffion of the land is called in the law of England the franktenement or freehold; fo nearly fynonymous in thofe days were the words poffeffion and freehold. In this manner the poffeffion of a termor differed from that of a mere bailiff, who had no poffeffion. Ch. 52. B. 2. D.:2 S 31. The fame principles obtained refpecting the Idem. transfer of the freehold. Nothing farther was neceffary, than a delivery of the poffeffion, or, as it was called Taylor v. Creates a ance. called by the law writers, livery of feifin, 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 reverfioner, and his actually holding poffeffion of the land, (though he held it for the freeholder), the livery of the former was a transfer of the poffeffion and fee-fimple, 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 feifin; on the other, livery of feifin could not be made by any person who had the poffeffion, without transferring the fee-fimple. The doctrine above stated has been, in fome respects, denied in a modern cafe; of which, an account will be given in Title 36. Recovery. § 32. A feoffment by a tenant in tail, who is actually feifed by force of the intail, creates a difcon1 Inft. 327 b. tinuance of the eftate tail, by transferring to the feoffee not only the poffeffion, but also the right of poffeffion, Tit. 29. c. 1. fo as to take away the right of entry of the issue in tail, and of the perfons in remainder and reverfion, and to drive them to their real action. And alfo a § 33. A feoffment by a particular tenant will create a forfeiture of his eftate, because it transfers the fee Tit. 3. f. 97. fimple, and devests the remainder or reverfion. § 34. A gift |