6 a. On feoffment purchaser is the deeds: case. 44 E. 3. 65 b. 34 H.6. change a freehold may pass without livery, as hereafter shall be said. as it (t) A man seised of land in fee has divers charters, deeds, and in fee without evidences, and maketh a feoffment in fee, either without warranty, warranty, the or with warranty only against him and his heirs, the purchaser shall entitled to all have all the charters, deeds, and evidences, as incident to the lands (t) 1 Co. fol. 1 et ratione terræ, to the end he may the better defend the land himBuckhurst self, having no warranty to recover in value; for the evidences are, were, the sinews of the land, and the feoffor not being bound 17 a. 19 H. 6. to warranty hath no use of them. But if the feoffor be bound to 1a. 10 E. 4. Warranty, so that he is bound to render in value, then is the defence 14,156 of the title at his peril; and therefore the feoffee in that case shall 3. H.7.33. have no deeds that comprehend warranty, whereof the feoffor may take advantage (c 1). Also, he shall have such charter, as may serve him to deraign the warranty paramount. Also, he shall have all deeds and evidences, which are material for the maintenance of the title of the land; but other evidences which concern the possession, and not the title of the land, the feoffee shall have them (55). H. 7. (2 Rol. Abr. 31.) secus as to deeds relating to the ti tle, if the feof for b bound to warranty. (356)* CHAP. XXXVII.* SAME SUBJECT. 9 b. a grant. Lincoln Col- OF GRANT AND ATTORNMENT. GRANT, concessio, is properly of things incorporeal, which (as Rol. Abr. hath been said) cannot pass without deed. 833. 6 Co. 16 b.) 172 a. Grant, concessio, is in the common law a conveyance of a thing in Lincoln that lies in grant and not in livery, which cannot pass without deed; (c 1) Acc. Hooper v. Ramsbottom, 6 Taunt. 14. And therefore where a vendor warrants his title, which in deeds of feoffment he usually does, it is proper to insert an express grant of the title deeds. 1 Bart. Prec. Conv. 43. n. 11. Idem, 45. n. 16. For the learning res pecting deeds and the right to them, see Buckhurst's case, 1 Co. 1. Field v. Yea, 2 T. R. 708. 2 Prest. Conv. 466. and the above case of Hooper v. Ramsbottom, in which it was determined, that if the vendor of a leasehold estate delivers the conveyance as an escrow, to take effect on payment of the residue of the purchase-money, the property in the title deeds of the estate is so vested in the vendee, that the vendor obtaining possession of them, and pawning them, confers on the pawnee no right to detain them after tender of the residue of the purchase-money.-[Ed.] case. as advowsons, services, rents, commons, reversions, and such like. College Of this sufficient hath been said in the First Chapter of the First Book (A). 390 a. Attornment necessary to It is to be observed, to what kind of inheritances being granted, an attornment is requisite. And in this chapter Littleton speaketh of five. First of a seignory, rent service, &c. Secondly, of a rent the grant of charge. Thirdly, of a rent seck. And hereafter in this chapter of two more, viz. of a reversion and remainder of lands; for the tenant shall never need to attorn, but where there is tenure, attendance, remainder, or payment of a rent out of land. And therefore if an annuity, common of pasture, common of estovers, or the like, be granted for life or years, &c. the reversion may be granted without any attornment; and albeit sometimes in some of these cases, or the like, an attornment be pleaded, yet it is surplusage, and more than needeth, because in none of them there is any tenure, attendance, remainder, or payment out of land. what inherit- Rol. Abr. 292, 293.), (37)* 309 a. Definition of attornment. fol. 81. Brit 176 & 177. Attornment, is an agreement of the tenant to the grant of the seignory, or of a rent, or of the donee in tail, or tenant for life or years, to a grant of a reversion or remainder made to another. It is Bract. lib. 2. an ancient word of art, and in the common law signifieth a torning ton, fol. 105 b. or attorning from one to another. We use also attornamentum Fleta, lib 3. as a Latin word, and attornare to attorn. And so Bracton useth it cap. 6. (1 Rol. (a): Item videndum est, si dominus attornare possit alicui ho- (1 Rep. 69.) magium et servitium tenentis sui contra voluntatem ipsius te- lib. 2. fol. 81 b. nentis, et videtur quòd non. Abr. 293.) (a) Bracton. Fleta, Britt. ubi supra. 2. fol. 81 b. And the reason why an attornment is requisite, is yielded in old Bracton, lib. books to be: Si dominus attornare possit servitium tenentis Britton. ubi contra voluntatem tenentis, tale sequeretur inconveniens, quod supra. possit eum subjugare capitali inimico suo, et per quod teneretur (A) A grant is a conveyance appropriated to the transfer of things not in possession, as reversions and remainders, and other incorporeal hereditaments, as rents, advowsons, &c. of which no livery can be had. Hence the expression that advowsons, rents, commons, &c. lie in grant. It was a rule that a grant could not be made without deed; because as the possession of those things, which are the subject matter of a grant, cannot be transferred by livery, there could be no other evidence of a grant but the deed. But it was always held that a grant, with the attornment of the tenant, was equally valid with a feoffment and livery. Ante, 9 a. p. 333, 334. 2 Bl. Com. 317. Watk. Conv. 97. 4 Cru. Dig. 111. 2 Prest. Conv. 209, 210. A gift, donatio, is properly applied to the creation of an estate tail, as a feoffment is, to that of an estate in fee-simple. And, considered in this view, it differs in nothing from a feoffment, but in the nature of the estate passing by it; for the operative words of this conveyance are do or dedi, and livery of seisin must be given to render it effectual. 2 Bl. Com. 306. A feoffment, however, is always applied to an immoveable thing; but a grant is often used for the conveyance of moveable things also; as trees, cattle, household stuff, &c. the property whereof may be altered, as well by gift, as by sale or grant. Shep. Touch. 227. A grant is, at this day, a suspicious species of conveyance, as being without what the law denominates either a good or valuable consideration. It is void as to those who were creditors of the donor at the time of its being made, though valid as to subsequent creditors. Watk. Conv. 100. 13 Vin. 519. tit. Fraud. 22 Vin. 15. tit. Voluntary Convey. Ante, 3 b. p. 236, 237. and the notes there.-[Ed.] sacramentum fidelitatis facere ei qui eum damnificare entenderet (1) (B). (1) Sir Martin Wright and many other writers have laid it down as a general rule, that by the old feudal law the feudatory could not alien the feud without the consent of the lord; nor the lord alien or transfer his seignory without the consent of his feudatory: for the obligations of the lord and his feudatory being reciprocal, the feudatory was as much interested in the conduct and ability of the lord, as the lord in the conduct and ability of his feudatory; and that as the lord could not alien, so neither could he exchange, mortgage, or otherwise dispose of his seignory, without the consent of his vassal. See Sir Martin Wright's Introduction to the Law of Tenures, 30, 31.-It is certain that this doctrine formerly prevailed in England. But, in general, it does not appear to have prevailed (at least in an equal extent) in other countries. It seems there to have been admitted, that the lord might transfer the whole fee, without the consent of the vassal, and that the vassal immediately, by such a transfer, became the tenant of the new lord.-It seems also to have been admitted, that the lord might transfer to another the beneficial fruits of the tenure, without the consent of the vassal. But it was a great question whether the lord could transfer his vassal to another, without the vassal's consent, unless by transferring the whole fee. See Bosnage Commentaire de la Coutume de Normandie, des Feifs et Droits feodaux, Art. 204.-This necessity, which subsisted in our old law, that the tenant should consent to the alienation of the lord, gave rise to the doctrine of attornment. At the common law, attornment signified only the consent of the tenant to the grant of the seignory; or in other words, his consent to become the tenant of the new lord.-The necessity of attornment was, in some measure, avoided by the statute of Uses; as by that statute the possession was immediately executed to the use;--and by the statute of Wills, by which the legal estate is immediately vested in the devisee.-Yet attornment continued after this to be necessary in many cases. But both the necessity and efficacy of attornments have been almost totally taken away by the statutes of 4 Ann. c. 16. and 11 Geo. 2. c. 19. By the former of these statutes, sect. 9. it was enacted, "that all grants and conveyances of any manors or rents, or of the reversion or remainder of any messuages or lands, should be good without attornment of the tenants; provided that no such tenant should be damaged by payment of rent to any such grantor or conusor, or by breach of any condition for nonpayment of rent before notice given him of such grant by the conusee or grantee." By the latter statute it was enacted, That the attornment of tenants to strangers claiming title to the estate of their landlords, should be absolutely null and void to all intents and purposes whatsoever, and that the possession of their respective landlord or landlords, lessor or lessors, should not be deemed or construed to be anywise changed, altered, or affected by any such attornment or attornments; provided that nothing therein contained should extend to vacate or affect any attornment made pursuant to, and in consequence of, some judgment at law, or decree, or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagee after the mortgage is become forfeited." Till the passing of these statutes, the doctrine of attornment was one of the most copious and obstruse points of the law. But these statutes having made attornment both unnecessary and inoperative, the learning upon it is so useless, that Mr. Viner has inserted nothing respecting it in his voluminous compilation but an extract from lord chief baron Gilbert.-Mr. Bacon has not the article Attornment in his work; and the learning and industry of lord chief baron Comyns have furnished him with little material upon it, that is not to be found either in Littleton or Sir Edward Coke. [Butler, Note 272.] (B) By the feudal law the feudatory, we have seen, could not alien the feud without the consent of the lord, ante, p. 211, n. (a); neither could the lord alien or transfer his seignory without the consent of the feudatory, Wright Ten. 30. Feud, b. 2. t. 34. s. 1. Craig. de jure feud. 129. 374, 375; for the obligations of the superior and inferior being mutual and reciprocal, the feudatory was as much interested in the conduct and ability of the lord, as the lord was in the qualifications and ability of his feudatory. And as the lord could not alien, so neither could he exchange, mortgage, or otherwise dispose of his seignory, without the consent of his vassal. Wright. 31. Hence arose the doctrine of attornment, which is defined to be "the consent of the tenant to the grant of the seignory, or the reversion, putting the grantee into possession of the services due from such tenant." Gilb. Ten. 81. The reason for attornment, says Lord Ch. B. Gilbert, was threefold. 1st. That the tenant in possession might not be subjected to a stranger, or a new lord, without his own approbation and consent. 2d. That he might know to whom he was to render his services, and distinguish the lawful distress from the tortious taking of his cattle: Different tornment. b. Tooker's Dyer, 302. * It is to be understood, that there be two kinds of attornment, (387)* viz. an attornment in deed or express, and an attornment in law or 309 b. implicit. Of attornment express or in deed Littleton, sect. 551, kinds of at speaketh, and of attornment in law he speaketh after in this chapter. And to both these kinds of attornments, there is an incident inseparable, that is, that the tenant hath notice of the grant; for (an attornment being an agreement or consent to the grant, &c.) he cannot agree or consent to that which he knoweth not. And the usual Lib. 2. fol. 67 pleading is, to which grant the tenant attorned. And therefore if a case. 13 El. baily of a manor who used to receive the rents of the tenants, pur- Tooker's chase the manor, and the tenants having no notice of the purchase, case, ubi su, continue the payment of the rents to him, this is no attornment. So, if the lord levy a fine of the seignory, and by fine take back an estate in fee, the tenant continueth the payment of the rent to the first conusor without notice of the fines, this is no attornment. But Lib. 2. Tookit is to be known, that there be two kinds of notices, viz. a notice in er's case, ubi deed or express, whereof Littleton, sect. 551. speaketh, when he saith, that the tenant agreeth to the grant, and a notice in law or implied, whereof Littleton hereafter speaketh in this chapter. *ATTORNMENT is, as if there be lord and tenant, and the lord will grant by his deed the services of his tenant to another for term of years, or for term of life, or in tail, or in fee, the tenant must attorn to the grantee in the life of the grantor (c) pra. supra. (359)* [Sect. 551. 309 a.] LITTLETON. Attornment in deed. and this reason was so prevalent, that when the statute quia emptores terrorum, gave a free alienation, in respect of the superior lord, yet the tenant's right of attornment continued unaltered. 3d. That by such attornment, the grantee of the reversion or seignory, might be put into the possession of it, and that others might be apprised and informed of the transfer.-Ibid. The necessity of attornment was partly avoided by the method of conveying to uses under the statute 27 H. 8. c. 10. by which the possession is immediately executed to the use. And it is now almost entirely taken away by the statutes 4 & 5 Ann. c. 16. and 11 Geo. 2. c. 19. The former of which enacts, that all grants or conveyances, by fine or otherwise, of any manors or rents, or of reversions or remainders, shall be effectual without the attornment of any of the tenants; but it is thereby provided, that no tenant shall be prejudiced by payment of rent to any grantor or conusor, or by breach of any condition for non-payment of rent, before notice shall be given to him of such grant by the conusee or grantee. And by the latter statute, reciting, that the possession of estates is rendered very precarious by the frequent and fraudulent practice of tenants, in attorning to strangers, who claim title to the estates of their respective landlords or lessors, who are thereby put out of the possession of their respective estates, and put to the difficulty and expense of recovering the same by action at law; it is therefore enacted, that all such attornments shall be void, and the possession not altered; but it is thereby provided, that the act shall not extend to affect any attornment made pursuant to any judgment at law, or decree or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagees on a forfeited mortgage. Before the statute of Anne, attornment was necessary in the case of a mortgage, on the principle of notice to the tenant; but since that statute the conveyance is complete without attornment, and the mortgagee is entitled to the rents on notice. Moss v. Gallimore, Dougl. 265. Ante, p. 37. n. (z). And attornment is now seldom heard of in practice, except in the case of a recovery in ejectment, where the tenants frequently attorn to the lessor of the plaintiff, in order to save the expense of sheriff's poundage, and officer's fees, on executing a writ of possession.-[Ed.] (c) That is, at common law, before the 4 & 5 Ann. c. 16. So, where a lord exchanged the services of his tenant with another for land, the attornment of the tenant, by whom the services were to be performed, was necessary to perfect such exchange. Perk. sect. 249. 259. And where a man made a lease for years of land, rendering rent, if he afterwards granted the reversion to another for years, to begin after the death of the grantor; the 1. How made. by force and virtue of the grant, or otherwise the grant is void. And attornment is no other in effect, but when the tenant hath [COKE, heard of the grant made by his lord, that the same tenant (here309 b.] after in this chapter Littleton doth teach what manner of tenant Might be by shall attorn) do agree by word to the said grant (and so he may, words alone; and more safely, by his deed in writing), as to say to the grantee, [COKE, 309 b.] I agree to the grant made to you, (1), &c. or I am (2) well content with the grant made to you; but the most common attornment is, to say (3) Sir, I attorn to you by force of the said grant, ery of a thing or I become your tenant, &c. or (4) to deliver to the grantee a penny, or a halfpenny, or a farthing, by way of attornment. or by deliv by way of at tornment. 310 a. Littleton here putteth five examples of an express attornment, but of them the last is the best, because the ear is not only a witness of (360)* the words, but the eye of the delivery of the penny, &c. and so there made in the is dictum et factum. And any other words which import an agreement or assent to the grant, do amount to an attornment. And might be grantee's ab sence. (b) Lib. 2. fol. 68, 69. Took er's case. 98 H. 3. tit. Br. 40. (10 * And albeit these five express attornments be all set down by Attornment. Littleton, to be made to the person of the grantee (b), yet an attornment in the absence of the grantee is sufficient; for if he doth agree to the grant, either in his presence or in his absence, it is sufficient. Rep. 52. Cro. Car. 410. 1 Rol. Abr. 300. (Dyer, 298 a.) 309 b. Of the grant made by his lord." Here is to be seen, when And in some the thing granted is altered, what becometh of the attornment. cases was good, notwithstanding an alteration in the thing granted. If there be lord, mesne, and tenant, and the mesne grant over his mesnalty by deed, the lord releaseth to the tenant, whereby the mesnalty is extinct, and there is a rent by surplusage, an attornment to the grant of this rent seck is good, although the quality of that part of the rent is altered, because it is altered by act in law. If a reversion of two acres be granted by deed, and the lessor, before attornment, levy a fine of one of them, and the tenant attorn to the grantee by deed, this is good for the other acre. (1) &c. not in L. and M. nor Roh. (3) &c. added in L. and M. and Roh. attornment of the lessee for years in possession was necessary. So, where a lessee for twenty years made a lease over to a third person for ten years, rendering rent, and then granted the reversion to a stranger, attornment of the lessee for ten years was requisite: but if the lease for ten years had been made without any reservation of rent, it would have been otherwise. For it was a rule, that where there was no tenure, attendancy, rent, or service to be paid or done, there attornment was not necessary. Supra, 312 a. p. 356. And hence it was, that where a person granted common of pasture appendant or appurte nant, or estovers out of land, there needed no attornment of the tenant to make such grant good. And for the same reason, where a rent or common was granted to one for life, a subsequent grant of the reversion of it, was good without attornment, Also if a man had made a lease to one for ten years, and afterwards made a lease to another for twenty years, in this case the second lease was good for the ten years to come after the first ten years ended, without any attornment of the first lessee. Sheph. Touch. 255, 256.—[Ed.] |