2. Quotuplex.

3. The nature & operation of it.

*P. 204.

sometimes, but improperly, called a feoffment
when an estate of freehold only doth pass. [When
an estate tail only is created, then the conveyance
is properly termed a gift; and when an estate of
freehold only is granted, the assurance is denomi-
nated a lease.]

This kind of conveyance, albeit it may be made
in most cases by word without any writing, yet is
most commonly done by writing; and this writing
is then called a deed or charter of feoffment; but
hence is the division of a feoffment by word, or a
feoffment by writing. [And sometimes even at
the common law a deed was requisite. The statute
of Frauds and Perjuries, 29 Car. 2, c. 3, now ren-
ders it absolutely necessary that in all cases there
should be at least a writing; but a deed is not ne-
cessary under that statute; and even where a deed
constitutes part of the transaction, the livery is the
operative and essential part of the assurance, Free-
man v. West, 2 Wils. 165; and no estate passes till
livery of seisin is made. 1 Prest. Est. ch. Freehold,
p. 224.] The ancient forms and examples of these
deeds are very brief; and yet they [generally, though
not of necessity,] had these parts contained in them..
1. The premises. 2. The habendum. 3. The tenen-
dum. 4. The reddendum. 5. The clause of war-
ranty. 6. The in cujus rei testimonium. 7. The date.
8. The clause of his testibus. Hæc fuit candida
illius ætatis fides & simplicitas, quæ pauculis lineis
omnia fidei firmamenta posuerunt (2).

See West. Syni

1 part.
Sect. 235.

Co. super Lit. 6.

Co. super Lit.

Co.

: 1111, 112. Plow. 554 or 9H7.24. Co. super Lit. Perk. Sect. 210.

39 H. 6. 43.

237.

And this manner of conveyance, as it is the most ancient kind of conveyance, so is it the best and most excellent of all others, and in some respects doth excel the conveyance by fine recovery; for it is of that nature and efficacy, by reason also [omit also] of the livery of* seisin evermore inseparably incident to it, that it cleareth 24 E. 3. 70. all disseisins, abatements, intrusions, and other Co. 6. 70. wrongful and defeasible titles, and reduceth the Bro. scire facias, estate clearly to the [feoffor, and through him to Plow. 423, 424. the] feoffee, when the entry of the feoffor is lawful; which [i. e. this] neither fine (3), recovery, nor

Co. 1. 121.

88.

(2) For various precedents of feoffments, see Mad. Form. Angl. 174 to 216. (3) A feoffment differs materially from a fine; for, in notoriety of fact, the feoffment is supposed to be made openly upon the land, and the feoffee is immediately put into the possession, but a fine has nothing public except the proclamations; and therefore, by the act

bargain and sale by deed indented and inrolled will
do, when the feoffor is out of possession, [viz.
disseised; nor will the seisin be reduced when
there is a right of action only, as distinguished
from a right of entry. It is the entry preparatory
to the feoffment, and not the feoffment as an
assurance, which reduces the seisin (4). And it
[the feoffment] passeth the present estate of the
feoffor; and not only so, but barreth and excludeth
him of all present and future right, and possibility
of right, to the thing which is so conveyed; inso-
much, that if one have divers estates, all of them
pass by his feoffment; and if he have any interest,
rent, common, or the like into [read in, to,]
or out of the land, it is extinguished and gone
by the feoffment. And further, it barreth the
feoffor of all collateral benefits touching the land;
as condition, power of revocation, [any other
power which confers a benefit; Weale v. Lower,
Pollex. p. 55; benefit of] writs of error, attaint,
and the like; insomuch, that if a man make an
estate of his land upon condition, or with power to
revoke it, and after he make a feoffment of the
land; by this [feoffment] he is barred for ever of
taking advantage of the condition, or power of
revocation. It destroyeth contingent uses [in the
feoffor, and contingent remainders in strangers, if
supported only by an estate of freehold or of
inheritance in the feoffor. It also] gives away a
future use [in the feoffor] inclusively; [it] gives
away a seigniory inclusively; and gives away a right
of action. [It may bind the expectancy of an
heir, as a title against him personally; Co. Litt.
p. 352, a b; Helps v. Hereford, 2 Barn. & Ald.
p. 244;] for both the feoffment, and livery of
seisin incident thereunto, are much favoured in
law, and shall be construed most strongly against
the feoffor, and in advantage of the feoffee. And
besides all this, (because it is so solemnly and
publicly made, being a notorious and public act,

of 4 Hen. 7, non claim runs only from the proclamations. Per Willes, C. J. in Smith v. Packhurst, 3 Atk. 140.

(4) To make a feoffment good and valid, nothing is wanting but possession, and where the feoffor has possession, though it be ever so bare and naked, yet a freehold or fee simple passes by it, by reason of the livery. Arg. in 1 Burr. 92, referring to Poph. 39; Lit. § 595. 599. 611.618. Co. Lit. 366 b. 377 a. [That a feoffment may be made by a person who has a reversion in fee expectant on a term for years, by the consent of the terior, infra, p. 201.]

4. Who may make

within the local jurisdiction, and as it were coram
pares curiæ,) it is of all other conveyances most
observed, [i. e. under public observation,] and there-
fore best remembered and proved (5). [Proclama✩
tions of fines are only another mode of giving
that notoriety of change of seisin which anciently
was accomplished by livery of seisin; and the
enrolment of bargains and sales was prescribed by
statute, and for the like object.]

Numb. 4.

If the feoffment be made by deed, then must the See Grant, or take a feoff deed be so made, written, read, sealed and delivered, Couper Lit. as all other deeds that are well made must be. For 2. 42, 43good feoffment; which see Deed, supra, chap. 4, numb. 5. [But the

ment; and what shall be said a

or not; and what

site thereunto.

things are requi- livery may be formal and good, though the writing be informal or defective, as not sealed or delivered; and the livery may be proved, though the charter of feoffment be lost. Per Lord Hardwicke.]

1. In respect of

unto, and the

estate.

And in every good feoffment that is made there the persons there must be a feoffor, i. e. a person able to grant the quality of their thing passed by the feoffment; a feoffee, i. e. person capable of it and able to take it; and a thing grantable; and it must be granted in that [viz. such] manner as [the] law requireth. [If A. tenant for life, with remainder or reversion to B. in fee or in tail, join in a feoffment without deed: in construction of law, it is the feoffment of B. and the surrender of A., for the estate of B. cannot by any construction pass without deed, unless there be ground for an implication that the particular estate is surrendered. But suppose that, under the same circumstances, the feoffment had been by deed, it would have been the feoffment of A. and the grant and confirmation of B., since the feoffment with the deed will admit of a construction under which the estate of B. will pass merely by the deed, as a grant and confirmation. Treport's case, 6 Rep. 15; supra, 81. Supposing B. to have had an estate tail, no discontinuance would have been created; because B. had not an estate tail in possession. Bredon's case, 1 Rep. 76.] And for this therefore observe, that whosoever is disabled by the common law to take, is disabled also to make a feoffment, gift,

(5) See accordingly 2 Bl. Com. 310; and further as to the origin, nature, and operation of a feoffment, Spel. Gloss. 510. Wright's Ten. 22. 48. 2 Inst. 110. 119. Dalrymple on Feuds, 202. The conveyance by feoffment is now very little in use: see note at the end of

this chapter.

257.]

grant, or lease. And many also, that have capacity to take by such conveyances have no ability to grant them as men attainted of treason, felony, or in a premunire, aliens born, the king's villains, Aliens. ideots, madmen, a man deaf, blind, and dumb Idiots. from his nativity, a feme covert, an infant, and a Feme covert. man by duress; for the feoffments, gifts, &c. of Infant. such persons may be avoided (6). [This paragraph must be read with caution and with many qualifications. Aliens may make a grant which will be effectual as against all persons, except the [1 Prest. Conv. crown. Persons attainted may grant, and the grants will be good as against all persons, except those entitled to the benefit of forfeitures. See infra, Grant. The feoffments of persons deaf, dumb, and blind, and of madmen, are mere nullities.] But such persons as have committed Attaint persons, treason or felony, if attainder do not follow, [and even after attainder for felony, then against the lord claiming by escheat, as distinguished from the lord claiming the benefit of forfeiture. See ch. Grant, for the qualifications and distinctions,] such as are attaint of heresy, a leper removed by the king's writ from the society of men, bastards, such as are deaf, dumb, or blind, that have understanding and sound memory, albeit they cannot express their intentions otherwise than by signs, those that are drunken, the villains of a common person before entry, &c. also excommunicate persons, P. 205. and outlawed persons, albeit the king take the Outlawed perprofits of their lands; all these may make feoff- sons. ments, gifts, &c. and all these have capacity to take by such conveyances.

Perk. Sect. 185, 186.

Fitz. Faits and

A woman that hath a husband, alone and by Feme covert. herself without her husband, cannot make a feoffment of her own land, and if she do so it is void, albeit her husband agree to it (7); [and yet a fine, if levied by her as a feme sole, would be effectual, unless the fine were avoided by the husband during the coverture. Supra, ch. Fines.]

Neither the head alone, nor any one or more Corporation. Feoffments, 29. of the members of a corporation aggregate of

(6) See before in page 54, and the references in note 2 thereunto.

(7) A feoffment by a feme covert without her husband is void, for she cannot make a livery, Adm. Join. 138; Lat. 41; though it be in execution of a trust, for it ought to be done by her and her husband. Jones, 137. 8. Semb. cont. by the other judges in the case of a trust. Jones, 137. Lat. 40. Com. Dig. Baron & Feme (P. 1.)

Ecclesiastical persons.

many, alone may [read, may alone] make a feoff- Perk. Sect. 205.
ment of any of the land belonging to their corpo- 224, 225.
ration, [as a conveyance by the corporation ;]
but all of them together may make a feoffment.
And if any [one] of them be seised of land in his own
right, and in his natural capacity, he may make a [Bro. Corpora-
feoffment of this land as another man may do; tions, pl. 66.]
yea he may make a feoffment of this land to the
same corporation whereof he is a head or member,
and so give and take also in a divers capacity.
[Or rather the corporation by its corporate name,
and by a corporate act, may, through the medium
of their attorney duly appointed, make a feoffment.
It is not necessary that all the members should be
present, unless it be required by the constitution
of the corporation, that all the members should be
present at the time of performing the corporate
act. In correction of the text, it is to be observed,
that a grant cannot be made to or by a corpora-
tion while there is a vacancy in its head, except
that the corporation is, even during the vacancy
capable of a grant of a remainder, and that re-
mainder may vest in case, and only in case, the
corporation shall be complete by its head, while
the particular estate shall be continuing. Butler's
Fearne, 250. Also no grant can be made to the
corporation, by the head thereof, as the dean or
mayor; nor can the head of a corporation, as the
dean or mayor, take by a grant of the corporation.
Jenk. Cent. 200; Bro. Corporations, pl. 4. An
individual, being a member, and not the head, of a
corporation, may be the grantor to or a grantee or
lessee of the corporation. 12 Mod. 683. And a
feoffment by an individual, being the member of a
corporation, may be effectual as a tortious and
wrongful alienation, though it would be ineffectual
as a conveyance by the corporation.] (8).

[In consequence of the regulations by the statute Co. super Lit.
law,] ecclesiastical persons cannot make feoffments, 43.
gifts, &c. of their ecclesiastical lands for longer
time than three lives, or twenty-one years; [or
even for these terms, unless the leases are con-
formable to the statutes of Hen. 8, and 13 Eliz. c. 10;
and see Bacon on leases, 39. But under certain

(8) But in this case the circuity of conveying to a third person, to enfeoff the corporation, would be preferrable. E. H.