rible] to the land; for if the feoffor do deliver the
deed only to the feoffee in sight of the land, this
[delivery of the deed] is not a good livery within

the view. 3. The parties must stand within view 3] Co. super Lit,
of the land; for if the feoffor, &c. being out of the 47-
sight of the land, say to the feoffee, &c. "Go
and enter, and take seisin of the land, and God
send you joy of," this is no[t a] good livery of

5] Co. 1. 156. Fitz. Faits and Feoffments, 49.

Perk. Sect. 214.

*P. 217. seisin. 4. There must be somebody capable of [1 Inst. 48 b.] a freehold to take by the livery; for if it be made to a lessee for years, the remainder to the right heirs of I. S., and I. S. is then living, it [the livery] is void. [And this rule equally applies to livery on the land.] 5. The feoffee, &c. must enter presently, for if either the feoffor, donor, &c. or feoffee, donee, &c. die before entry, the livery cannot be made good (29). And yet if the party dare not enter for fear, in this case if he claim it only, [and thus regains the seisin,] and do not enter, it is sufficient (30). [Query. The language of our author is warranted by Lord Coke, 48 b; 2 Black. Com. 316; and also by the Book of Assize, to which Lord Coke refers and the point is applicable to a feoffment, as well as to a claim to prevent a descent, which would toll an entry; but no estate vests in the feoffee till entry. Litt. § 421.] Livery of seisin in deed may be made or taken taken by an at- by the deputies or attorneys of the parties, and 52. Kelw. 51. torney shall be this livery by them is as good as that livery of good; and where not; and what seisin which is made by the parties themselves; warrant is suf- and that also, as it seems, albeit the parties themselves be upon the land at the time of the making thereof, if they do not contradict it (31). But in

10. Where livery of seisin made or

ficient.

Co. super Lit.

Co. 9. 76.

Terms of the
Law, tit.Livery.

(29) The feoffee ought to execute it, and take possession presently, or the livery will not avail him; because a frank-tenement cannot be in abeyance. Mo. 85. It it said, it will be good if the feoffee enters in the life of the feoffor, although the feoffee be a woman, and married before her entry to the feoffor; or any other who enters and claims in right of his wife. Parsons v. Perns, 1 Mod. 91. [Bac. Abr. Feoffment (A. 2.)]

(30) For it will be a good execution of the livery, and vest the frank-tenement in him. Co. Lit. 48 b. See further as to the perfection of livery within view, Bac. Abr. Feoffment (A. 2.); Vin. Abr. Feoffment (I.); and Com. Dig. Feoffment (B. 4.) By what act livery within the view may be countermanded, see Vin. Abr. Feoffment (P. 2.)

(31) 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 to the contract. 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. Bac. Abr. Feoffment (E).

the making of this livery care must be had,—
1. That there be a deed of feoffment (32), [this,
as a general proposition, is probably an error,]
for otherwise a letter of attorney [in the same in-
strument] to deliver possession availeth nothing.
2. That there be a good authority in writing, [viz.
by deed,] which may be either in the deed of
feoffment itself, whether it be poll, or indented,
and that albeit the attorney be not party to it,
[1 Inst. 52 b;] or else by a single deed besides
the feoffment, &c. 3. That the attorney do pursue
his authority at least in the substance and effect of
it. 4. That the attorney do it [in terms, or in
substance,] in the name of the feoffor, donor,
who doth give the authority. 5. That it be done.
in the lifetime of the parties, [so that the seisin
may pass out of the feoffor, in his lifetime, into
the feoffee in his lifetime.] But a livery in law
may not be made by an attorney. And therefore
if a letter of attorney be to deliver seisin generally,
and the attorney by virtue thereof deliver seisin in
view; this livery of seisin is void (33). [And
some of the books carry the proposition to the
extent, that livery in view cannot be made to or
by an attorney, or by a corporation. 2 Black.
Com. 316; Dyer, 233, and notes.]

&c.

If an infant, [see Zouch v.Parsons, 3 Burr. p. 1794,] Infant. or woman covert, make a feoffment and letter of at- Woman covert. torney to make livery, and the attorney do so; this [livery] is void, for they are not able to give such an authority; [they cannot make a valid deed, and therefore cannot have an attorney by force of the letter of attorney. Whittingham's case, 8 Rep. 42 b.] And if a man, whilst he is of sound memory, make a feoffment with a letter of attorney to give livery, and after he become paralytic and so dumb, but by signs he doth declare himself to be willing to have livery of seisin made, and it is made; this is a good livery of seisin. [It may hence be inferred, that if the party had been completely incapacitated

(32) Bargain and sale made without any words of dedi et concessi to bargainee in fee, and in the indenture was a letter of attorney to make livery, which was made accordingly : adjudged a good feoffment, well executed by the livery, notwithstanding that the words of the conveyance are only by bargain and sale. Bennicombe v. Parker's case, 1 Leon. 25.

(33) An attorney cannot make livery in view, because his warrant is intended of an actual and express livery, and not of a livery in law. Co. Lit. 52. 2 Roll. Abr. 9. An attorney cannot make a letter of attorney to another, to give livery, [at least unless he have an express authority for this purpose.] 18 E. 4, 12 b. 19 H. 8, 10. 2 Roll. Abr. 9. See further in Noy's Max. 161.

Non sane memoria.

*P. 218.

Sed

before the livery had been made, the authority
would have been determined or suspended.
vide infra.] But if a letter of attorney be made to
deliver seisin of certain land by one that is [at that
time] non sana memoriæ, and the deed of feoffment
was made whilst he was of sound memory, and
afterwards he doth come to his memory again, and
then the livery is made upon the first warrant with-
out any new assent, &c.; in this case the livery is
not good: [for the warrant of attorney was void,
being made while the feoffor was incapacitated;
and, as there was not any valid authority, there
could not be any effectual livery.]

That for the most part, which for the manner Dyer, 283. and order of making, it is a good livery of seisin if it be made and taken by the parties themselves, is good, being made and taken by their attorneys or deputies that have a good authority and do well [i. e. duly] pursue it. And therefore if the conveyance be made of divers lands, and they lie in one county, and a warrant of attorney is made to give livery generally, and the attorney doth make it in one part of the land in the name of all the rest; this is a good livery. Et sic de similibus.

If a man be seised of black acre and white Co. super Lit. acre, and he make a deed of feoffment of both 52. these acres, and a letter of attorney to enter into both these acres, and to deliver seisin of both of them according to the form and effect of the deed, and he doth enter into black acre and deliver seisin secundum formam charta; in this case the livery of seisin is good, albeit he doth not enter into both the acres, nor into one acre in the name of both: [for, in construction of law, the entry into one acre is an entry into both acres, if they be parcels of the same tenement that is in possession of the feoffor or of the same tenant.] And if the feoffment be made [by deed] to two or more [persons, as joint-tenants,] and the warrant of attorney is to make livery to them both, and the attorney doth make livery of seisin to one of the feoffees secundum formam et effectum charta; in this case the livery is good to both, and yet he that is absent may waive the livery; [and in that case the seisin will rest wholly with the feoffee, to whom livery is made, if they are to be joint-tenants.]

And yet if a man be disseised of black acre [by one person,] and [of] white acre [by another per

Co. super Lit.

52.258.

Perk. Sect. 187,

188, 189.

Perk. Sect. 109. Co. super Lit. 258.

Co. super Lit.

49.

Perk. Sect. 39.

son,] and a warrant of attorney is made to one to
enter into both these acres, and to make livery, and
the attorney doth enter into one acre only, and
make livery of seisin there secundum formam
charta; in this case the livery of seisin is void for
all, for in this case he doth less than his authority.
[But if there is only one disseisin, and only one
freehold, then an entry into one acre is, in con-
struction of law, an entry into both acres.] So if
a man make a letter of attorney to deliver seisin
to I. S. upon condition, and the attorney doth
deliver seisin absolutely; this livery of seisin is
void. And so in all such like cases, where the
attorney doth less than the authority and com-
mandment, all that he doth is void. But for the
most part, where the attorney doth that which he
is authorized to do, and more also, it is good for
so much as is warranted, and void for the rest.
And therefore if the letter of attorney be to give
livery of seisin to I. S. and the attorney give it to
I. S. and W. S.; this livery is good to I. S. and
void to W. S. So if the letter of attorney be to
give livery of seisin of white acre only, and he
make livery of white acre and black acre also ;
this livery is good for white acre, and void
for black acre. So if the letter of attorney be
absolute, and the attorney give livery upon con-
dition some hold this [livery] to be good, and the
condition to be void.

If a letter of attorney be made to two jointly,
to make or take livery of seisin, and one of them
alone doth it without the other; this is a void
livery. But otherwise it is when it is made to two
jointly or severally, for there one of them alone
may do it (34.)

If a letter of attorney be to make livery of seisin after the death of another man, and the attorney doth make livery of seisin during that man's life; this livery is void (35.) [Because it would, if effectual, pass the seisin earlier than was intended.]

(34) If a letter of attorney be made to three, conjunctim et divisim, and two of them only make the livery, it is not good, because not pursuant to the authority; for the delegation was to them all three, or to each of them separately but if the third was present at the time of the livery, though without doing or saying any thing, it is good. Dyer, 62 a. See further Mo. 278. 1 Leon. 192.

(35) See more amply as to the doctrine of livery by letter of attorney, in Vin. Abr. Feoffment (Q.); Com. Dig. Feoffment (B. 3.); and note 2, to 13th edition Co. Lit. 52 a. [Bac. Abr. Feoffment (E.)]

11. How it shall

enure, and be ta

*P. 219.

*

177.

Fitz. Feoffments

Livery of seisin is sometimes made single, and Lit. Sect. 359. ken & construed. without any relation to the deed, whereby the estate, 48. 121. Co. super Lit. upon which the livery is made, is created at all; Fitz. Estoppel, and sometimes, and most commonly, it is made 17 Ed. 4. 15. with reference to the deed, in these or such like Co. superLit.49words, "secundum formam chartæ;" [and now and Faits, 23. there must be a writing, at least, to evidence the feoffment; 29 Ch. 2, c. 3.] In the first case the estate is oftentimes made upon the livery, and then there may be one estate contained in the deed, and another made by the livery; also there may pass more land by the livery than is in the deed, and by this means, when there is a fault in the deed, so that the land will not pass by the deed, it may perhaps pass by the livery; but in this case then there must be apt words used in the making of the livery to create the estate also, as well as to give the possession. [The statute of 29 Ch. 2, c. 3, would now exclude these results.] But where the livery of seisin is made with relation to the deed, there it must take effect according to the deed, or not at all; for these words, secundum formam chartæ, are to be understood according to the quantity and quality of the effectual estate contained in the deed. And therefore if one make a deed of feoffment to another, and in the deed there is contained no condition at all, and when the feoffor doth make livery he doth make livery upon condition; or if the deed contain an estate to him [the feoffor] and his heirs, and he maketh livery of an estate in tail or for life; in these cases there doth pass nothing by the deed. And yet if there be [read, had been] apt words used to create such an estate at the time of the livery made, such an estate may be [might, at the common law, have been] made by the livery without the deed, and then the deed shall be void. But if in these cases the feoffor say, when he doth make livery on condition in tail, or for life, secundum formam charta; in this case there is a good feoffment made according to the deed, and the additional words are void. So if a man make a lease for years, and make livery secundum formam charta; this is but a lease for years still. And if A. give land to B. to have and to hold after the death of A. to B. and his heirs, this is a void deed; and therefore if the livery of seisin be made secundum formam chartæ, the livery of seisin is void also, [unless