of your body, or to you and your heirs for ever, as the case shall require. Ruth. cap. 4. ver. 7, 8. When the kinsman of Elimelech gave unto Boas the parcel of land that was Elimelech's, he took off his shoe, and gave it unto Boas Deut. 25.9, 10. in the name of seisin of the land (after the manner in Israel) in the presence and with the testimony of many witnesses. And when Gen. 23. ver. Ephron infeoffed Abraham of the field of Machpelah, he said to him, Agrum trado tibi, &c. I deliver this field to thee (D). 11. 6 (337)* 56 b. Co. 26. Ante, 48 a.) Faits, 51. *Albeit the deed be delivered upon the ground, yet doth it not amount to a livery of seisin of the land; for it hath its natural effect) Flet.lib. to make it a deed. (g) Donationum alia perfecta, alia incepta et non perfecta: ut *si donatio lecta fuerit et concessa, ac traditio nondum fuerit subsecuta. But if the deed be delivered in name of seisin of the land, or if the feoffor saith to the feoffee, Take and enjoy this land according to the deed; or, Enter into this land, and God give you joy; these words do amount to a livery of seisin. AND if a man will make a feoffment, by deed or without deed (E), of lands or tenements which he hath in divers towns in one county, the livery of seisin made in one parcel of the tenements in one town, in the name of all the rest, is sufficient for all other the lands and tenements comprehended within the same feoffment in all other the towns in the same county (10). But if man maketh a deed of feoffment of lands or tenements in divers counties, there it behoveth in every county to have a livery of seisin (11). (10) Vid. 11 Eliz. Dy. 283. Cestui que use of three acres by three several feoffments in one county makes charter of feoffment of all and livery in one of the acres, it is pursuant to the statute and passes all." Hal. MSS. The statute meant is the 1 R. 3. c. 1. which empowers cestui que use to make effectual feoffments and conveyances against his feoffees in trust; and the case cited was of feoffment before the 21 H. 8. for transferring uses into possession. It is stated, that the livery was made by attorney, and that was the cause of the doubt; it being said, by some, that the statute of R. 3. ought to be construed strictly, and to be confined to conveyances made by the cestui que use in his a cap. 15. 13E. Br. 27 Ass. 39 Ass. 12. 41 6 Co. 26. LITTLETON. [Sect. 61. 50 a.] Where the lands lie in one county, name of the ficient: own person. See Bro. Feoffment to Uses, 28.-[Hargr. n. 1. 50 a. (323).] (11) Vid. Dy. 246. 22 H. 6. 10. If a manor extends into two counties, livery 'in that part of the manor which is in one county, doth not pass that which is in the other county. So it is with respect to disseisin." Hal. MSS.-But Mr. Perkins holds, that livery of parcel of such a manor in one county will pass the parcel in the other county. Perk. sect. 227. However, he admits, that if one be disseised of two acres in different counties, entry into the acre in one of the counties, though made in the name of both acres, will not extend to the acre in the other county. Perk. sect. 229.-[Hargr. n. 2. 50 a. (324).] (D) Among the ancient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses. Stiernhook De jure Sueon, 1. 2. c. 4. In the times of our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish a conveyance of lands. Hicke's Dissert. Epistolar. 85. And, to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of tenants. 2 Bl. Com. 313. The disuse of livery of seisin, and the want of sufficient notoriety thereby occasioned, have been frequently regretted. See 2 Bl. Com. 337. Bac. Law Tracts, 154.—[Ed.] (E) That is, at common law, before the 29 Cha. 2. c. 3.—[Ed.] 48 b. How livery shall be made fee-simple. (338) Vid. sect. I. in Vide Sect. 1. in Bridgewater's case, where a man hath a moveable estate of inheritance, for example there put, in 13 acres: the of a moveable question is, where livery shall be made. First, if they be parcel of a manor, they may pass by the name of the manor; but if they be gross, then the charter of feoffment must be of 13 acres lying and being in the meadow of 80 *acres, generally, without bounding or describing of the same in certainty; and livery of the seisin of any 13 acres allotted to the feoffee for a year secundum formam cartæ is a good livery to pass the content of 13 acres wheresoever the same lie in that meadow. In the second case, where one entire manor is separate and divided, as is aforesaid, there is no question but the livery must be made of that manor; but in the other case, where two manors are separate, and divided alternis vicibus, there the charter of feoffment must be made of both, and livery in that manor which he is seised of in any one year secundum formam cartæ, and the next year in the other secundum formam carta: for there are two distinct manors, and several estates in them (12). 48 a. Livery of part secundum formam car If divers parcels of land be contained in a deed, and the feoffor delivers seisin of one parcel according to the deed, all the parcels do ta, passes all pass, albeit he saith not (in name of all, &c.) because the deed concontained in taineth all. And so, if there be divers feoffees, and he make livery to one according to the deed, the land passeth to all the feoffees (13); and yet the plainer way is to say (in the name of the whole, or of all the feoffees) (14). the deed; or if made to If a deed be made and dated in a foreign kingdom, of lands E. 3. 17. in within England, yet if livery and seisin be made, secundum formam carta, the land shall pass, for it passeth by the livery. Gracye's case. 48 a. or if made for life, the deed passes the fee. Ib. (2 Co. 246. 40. 10 Ass. 19 Ass. If a man make a charter in fee, and deliver seisin for life secunbeing in fee, dum formam cartæ, the whole fee-simple shall pass, for it shall be taken most strongly against the feoffor (F). Note, that these words (secundum formam carta) are understood according to the quantity 7 E. 4. 25. 29. and quality of the effectual estate *contained in the deed. If a man make a lease for years by deed, and deliver seisin according to the form and effect of the deed; yet he hath but an estate for years, and the livery is void, as Littleton saith. So, if A. by deed give land to B., effect, livery to have and to hold after the death of A. to B. and his heirs, this is a void deed, because he cannot reserve to himself a particular estate, void. and construction must be made upon the whole deed; and if livery be made according to the form and effect of the deed, the livery 43 Ass. 20. (339)* Where the deed has no according to the deed is *48 b. (Hob. 171. (12) "Vid. 8 E. 2. Feoffments 111. Livery by the lord of any part of the manor without going to it; but contra if not parcel." Hal. MSS.-[Hargr. n. 3. 48. b (314).] 66 (13) But if it be without deed nothing passes to the others. Dy. 14. 35." Hal. MSS.—[Hargr. n. 7. 48 a.] (14) "15 E. 4. 18. 18 E. 4. 12. 18 H. 6. 9. 22 H. 6. 1. 40 E. 3. 40." Hal. MSS.[Hargr. n. 8. 48 a.] (F) And livery is not only made for life, but also according to the form of the deed, that is, according to the quantity and quality of the estate contained in the deed, which necessarily includes an estate for life. Hawk. Abr. 80. But where the deed and the words used in the livery are inconsistent, nothing passes by the deed. Ante, 222 b. p. 9.-[Ed.] 197. 1 Sid. 82. also is void (G), because the livery referreth to a deed that hath no Plowd. 155. effect in law, and therefore it cannot work secundum formam et 2 Rol. Abr. 7. effectum carta (15). And so it was adjudged, et sic de similibus. Cro. Ja. 376.) (*) And it is to be observed, that neither the feoffor being absent Mich. 33 & 34. can make livery, nor the feoffee being absent can take livery, but by King's Bench warrant of attorney, by deed (í), and not by parol, because it con- Crosse for cerneth matter of freehold (16). * a Eliz. in the inter Hogge & lands in Lon- livery by at torney, the deed. IF a man maketh a deed of feoffment to another, and letter of attorney to one to deliver to him seisin by force of the same deed; yet if livery of seisin be not executed in the life of him which made the deed, this availeth nothing, for that the other had nought to have the tenements according to the purport 66. 11 H.4.71 of the said deed, before livery of seisin made; and if there be no livery of seisin, then after the decease of him who made the deed, the right of these tenements is forthwith in his heir, or in some other. 19 Ass. 9. 19 H. 8. 9 b. Post, 359. 2 Rol. Abr.8. Sid. 61.) [Sect. 66. 51 b.] (340)* LITTLETON. 51 b. (9 Co. 75. "Attorney" is an ancient English word, and signifieth one that is set in the turn, stead, or place of another: and of these some be private (whereof our author here speaketh) and some be public, as attornies at law, whose warrant from his master is, ponit loco suo F. N. B, 156.) talem attornatum suum, which setteth in his turn or place such a man to be his attorney. 52 a. "And a letter of attorney to one to deliver to him seisin by force of the same deed." Here first it appeareth, that the authority Vid. sect. 196. (15) "Charter of feoffment habendum a die datas, Ruled, 1. If livery be made the same day secundum formam cartæ, it is void. 2. If it was after the day by the feoffor himself, it is good. 3. If there be letters of attorney to deliver seisin in the deed, or it was at the same time, and it is delivered' after the day, yet it is not good, because the authority was given at a time when it was a void charter. But 4. If letter of attorney be made after the day, and livery is made according to the deed it is good. Hob. 314. Greenwood and Tiler. T. 3. Car. Owen and Price. C. B. H. 3 Jac. Rot. 216. 1 (G) In these two cases the livery of seisin is void, for the first deed expressly gives a chattel only, and the second gives a freehold in futuro, and consequently is void: and where the sole purport of the livery is to make the estate contained in the deed effectual, it shall rather be void, than strained to give a freehold in the first case, or a present estate in the second, against the manifest intent of the parties. Hawk. Abr. 80.-[Ed.] (H) A man may either give or receive livery by his attorney: for since a contract is no more than the consent of a man's mind to a thing, where that consent or concurrence appears, it were most unreasonable to oblige each person to be present at the execution of the contract, since it may as well be performed by any other person delegated for that purpose by the parties. But such delegation or authority, to give or receive livery, must be by deed, that it may appear to the court, that the attorney had a commission to represent the parties that are to give or take livery, and whether the authority was pursued. 3 Bac Abr. 166.-[Ed.] (h) 24 E. 3. 27. 11 H. 7. 13. Britt. 101 b. Who may be attornies to make livery. (i) 21 E. 4. 18. Br. Feoffments 50. 21 H. 6. 30. to deliver seisin (as hath been said) must be by deed (17): for letter of attorney is as much as a warrant of attorney by deed, for literæ do signify sometimes a deed, as literæ acquietanciæ do signify a deed of acquittance, and herewith (h) agreeth Britton. 2. Littleton here speaks generally to one, and few persons are (i) disabled to be private attornies to deliver seisin; for monks, infants, 13 E. 3. A feme coverts (18), persons attainted, outlawed, excommunicated, villains, aliens, &c. may be attornies. A feme may be an attorney to deliver seisin to her husband, and the husband to the wife, and he in the remainder to the lessee for life (1). torney 73. (341)* Must pursue both express (k) 12 39. 11 H. 4.3. 10 H.7. 11 H. 7.3. 40 Ass. 38. (9 Co.76b.) (2 Leon. 73.) 3. It appeareth here that the attorney must (k) pursue his warrant, his authority, otherwise he doth not deliver seisin by force of the deed, as Littleand implied. ton speaketh. Now his authority is two-fold, expressed in his pl. 24. 26 Ass. warrant, and implied in law, both which he must pursue. And first of his express authority. A man seised of Black Acre and White Acre makes a deed of feoffment of both, and letter of attorney to enter into both Acres, and to deliver seisin of both of them according to the form and effect of the deed, and he entereth into Black Acre and delivers seisin secundum formam cartæ, this livery and seisin is good, albeit he did not enter into both, nor into one in the name of both; for when he delivereth seisin of one secundum formam carte, this is tantamount and implieth a livery of both. (19) So, when the feoffment is made to two or more, and the atwell given to an infant, the disability of infancy being stronger than that of coverture; 2. because in the particular case it did not appear, that the power was intended to be given during infancy, the power being given notwithstanding coverture, without the least notice of infancy; and 3. because it was a power coupled with an interest, the infant having a trust in equity for life, together with the trust of the inheritance subject to the power.-[Hargr. n. 2. 52 a. (332).] (17) Vid. 1 Ass. 16. 35 Ass. 1. 12 H. 7. 27. 4 H. 7. 13. 13 E. 4. 8." [Hargr. n. 1. 52 a.] 26 Ass. 29. 13 H. 7. 14. Hal. MSS. (18) In another place Lord Coke cites a passage from the Mirror, which excludes both infants and femes covert from being attornies. Post, 128 a. But that is quite reconcilable with the doctrine here; for there public attornies for prosecuting suits at law are meant, whose office cannot be properly executed without considerable knowledge and discretion: but here Lord Coke in the first part of the sentence confines himself to private attornies to deliver seisin, which is an act so merely ministerial that it may be done by the most ignorant. See the case of Earle and Greenough, in 3 Atk. 695. and 1 Ves. 298. One question in that case was, whether a power of disposing of real estate could be well executed by an infant feme covert of the age of nineteen; and Lord Ch. Hardwicke determined against the execution of the power, 1. because he thought in general that such a power could not be [See ant. vol. 1. p. 174. n. 35.]—[Ed.] (19) Adjudged accordingly of livery to one feoffee. T. 1651. B. R. Trotman's case. Vid. M. 31, 32 Eliz. C. B. Trevillian's case. A. seised of two acres makes lease of one acre to B. for years, and afterwards makes charter of feoffment of both acres and letter of attorney to B. and C. conjunctim et divisim to make livery: B. makes livery in one acre and C. in another, and adjudged good. Entered M. 30, 31 Eliz. Rot. 2908. Vide Bendl. n. 15. M. 32, 33 Eliz. 1868.” Hal. MSS.-[Hargr. n. 3. 52 a. (333).] (1) But seisin can be delivered by attorney only when the feoffor is sui juris; for, if the feoffor be an infant, feme covert, or the like, livery should be made in person; for as an attorney cannot be constituted but by deed (which these persons are incapable of making, Zouch v. Parsons, 3 Burr, 1801.), any act done by them in pursuance of such vacate authority, would of course be wholly void, whilst the effect of a livery made in person will be good until avoided by entry. Perk. sect. 12. 1 Bart. Prec. conv. 47. n. 17.—[Ed.] 359 a.) torney is to make livery of seisin to both, and the attorney make Post, 310 a. livery of seisin to one of the feoffees secundum formam et effectum carta, this is good to both (K), and yet in that case he that is absent may waive the livery. If lessee for life make a deed of feoffment and a letter of attorney to the lessor to make livery, and the (342) * lessor maketh livery accordingly, notwithstanding he shall enter for the forfeiture (L). But if lessee for years make a feoffment in fee and a letter of attorney to the lessor to make livery, and he make livery accordingly, this livery shall bind the lessor, and shall not be avoided by him: for the lessor cannot make livery as attorney to the lessee, because he had no freehold whereof to make livery, but the freehold was in the lessor (20). If the lessor make a deed of feoffment and a letter of attorney to the lessee for years to make livery, and he doth it accordingly, this shall not drown or extinguish his term, because he did it as a minister to another (22) and in Tr. 7 Eliz. in another's right, and is accounted in judgment of law the act of the other, and the feoffee claimeth nothing by him (23). Com. Banco (21) (F.N.B. 350.) If one as procurator or attorney to another present to his own 17 E. 3. 61. benefice, he puts himself out of possession, because he cometh in by the induction and institution of the ordinary. If the tenant devise that the lord shall sell the land, and dieth, and the lord selleth it, the seignory remains. But if the lord or a grantee of a rent-charge had been also cesty que use of the land, and after the statute of R. 3. and before the statute of 27 H. 8., cesty que use had made a fe- 1 Co. 111. offment in fee of the land, albeit the land passeth from the feoffees, and his feoffment is warranted by the power given to him by the Post, 265 b.) count of the mischief. 13 H. 4. 15. 7 H.6. 33." Hal. MSS.-[Hargr. n. 6. 52 a. (335).] (23) "So it is of livery by the lord. H. 4 E. 6. Mo. n. 41. Trevillian's case, supra." Hal. MSS.-See note 19.-By the case of livery by the lord, it is meant, that if tenant makes feoffment of his tenancy, and the lord as attorney makes livery, it shall not extinguish his seignory. Mo. 11.[Hargr. n. 7. 52 a. (336).] (K) So where a deed of feoffment was made to three, habendum to two for their lives, remainder to the third for his life, and a letter of attorney was made to give livery to the two, but the attorney made livery to all three secundum formam carta; and the question was, whether the livery so made as if they had all estates in possession, whereas in truth one of them had but an estate in remainder, was good: the court were all of opinion, that the livery was good to two for their lives, remainder to the third person. And the chief justice said, that whatever the ancient opinions were about pursuing 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 pursued at all. As if a letter of attorney was made to three jointly and severally, two could not execute it, because they were not the parties delegated; they did not agree with the authority. Norris v. Trists, 2 Mod. 78. S. C. 3 Salk. 277.-[Ed.] (L) For the lessee had an estate which might pass by livery, and the lessor who was not privy to the deed, might presume that it contained no greater estate than the lessee could lawfully make; and therefore he ought not to be prejudiced in respect of his right of entry for the forfeiture. Hawk. Abr. 88.—[Ed.] 37 VOL. II. |