Co. 2. 55. 5.94. case, B. R. Mich. 17 Jac. livery be made after the day.] But if, when he If A. by deed give land to B. to have and to & Greenwood's hold, after the death of A., to B. and his heirs; this is a void [grant by] deed; and therefore, if upon this deed, livery of seisin be made before the day, by the party himself, or at, or after the day, by his attorney secundum formam et effectum chartæ; the livery is void also, for it cannot enure so; [i. e. an estate of freehold cannot be granted to commence in futuro.] And yet if a lease be made for life to begin in futuro, and at, or after the day come, the lessor himself in person doth make livery of seisin secundum formam charta; in this case the lease, perhaps, may become good by this livery of seisin. [It has been supposed that the attorney could not, by delaying livery, make that grant good which would, if livery had been made at the time, have been void. If he had authority to make livery at or after the day, the livery would be good; and now a letter of attorney, to make livery of seisin, according to the form and effect of the deed, would warrant and support a livery after the day appointed for the commencement of the estate. Freeman v. West, 2 Wils. 165; 1 Prest. on Est. p. 223.] Co. super Lit. 222. Perk. Sect. 42. If an agreement be between two, that the one shall enfeoff the other upon condition for surety *P. 220. of money, and afterwards livery of seisin is made generally, without any such condition; in this case, it is said by some, the estate shall be on condition still; [being part of the same transaction, and founded on the original agreement. However the statute of Frauds and Perjuries, 29 Ch. 2, c. 3, would now exclude the evidence of the condition.] If there be a fault in the deed, as by the mis naming of the feoffor, &c. feoffee, &c. or the like, and afterwards the feoffor, &c. doth himself in person make livery of seisin upon this deed to the feoffee, &c.; by this the fault of the deed may be holpen and cured. If one make a feoffment to himself and another, Perk. Sect. 204. and give livery of seisin to the other, this is a 203. 7 H. 7. 9. good feoffment, and shall enure to the other wholly, and he shall take the whole by the feoffment and the livery; [for no person can give or grant to himself; or be agent and patient: he should have made the feoffment to the other, or to a stranger, and to the use of both, in order to have accomplished his intention.] And so if the livery be made to one that is capable, and to another that is not capable, [as joint-tenants,] he that is capable shall take the whole, and the other shall have nothing. So if a feoffment be made to two, [and as jointtenants,] and one of them die before the livery is made, and after the livery is made to the survivor ; in this case the livery shall enure to the survivor only, and he shall have all the estate thereby. [But if the grantees were to be tenants in common, no grantee could take more than his share, because his share is defined and fixed.] So if a feoffment be made, without deed, to a corporation and to I. S., and livery is made to I. S. alone; in this case I. S. shall have the whole, and the corporation nothing at all; [because a corporation are incapable of taking except by deed.] If a feoffment [by deed] be made to four, and livery of seisin is made to one, two, or three of them, [in the absence of the others;] this [livery] shall enure to them all. But if the feoffment be without deed, it shall enure to him wholly to whom the livery is made. And if one of them give warrant to the rest, to take livery for him, and they do so; this shall enure to them wholly, and not to him at all for any part; [for want of a deed of feoffment to all jointly.] Dyer, 35 10 E. 4.1. Co. 5. 95. If the tenant make a feoffment [by deed] to his 10 E. 4. 12. lord and another, and give livery of seisin to the other; this shall enure wholly to the other until the lord agree to it, and then to them both. [It is apprehended the law is otherwise; namely, the estate will vest in both, subject to be devested, as to the lord, by his disagreement.] Co. super Lit. 21. Co. super Lit. 52. Co. super Lit. 52. If one make a deed of feoffment of one acre of land to A. and his heirs, and another deed of the same land to A. and his heirs of his body, and deliver seisin according to the form and effect of both deeds; in this case it shall enure by moieties, i. e. he shall have an estate tail, and the fee simple expectant in the moiety, and a fee simple in the other moiety. [Query if he shall not have an estate tail in the entirety, with the remainder in fee. If there be a feoffment to a man and his heirs of his body, habendum to him and his heirs for ever, he will have an estate tail, and also the fee expectant. But if the feoffment be to him and his heirs, habendum to him and his heirs of his body, the premises will be qualified and explained by the habendum, and the feoffee will have an estate tail only. 1 Inst. 21 b.; Thurman v. Cooper, Poph. 138.] If two several deeds of feoffment be made to two several persons of one and the same thing, he that can get the seisin first shall have it. Rem, domino, vel non domino, vendente duobus, in jure est potior traditione prior. [But if a devise be to one man and his heirs, and afterwards to another man and his heirs, by the same will, and there is not any apparent intention of revoking the will, the several devisees will in this instance be joint-tenants; (1 Inst. 112 b.; and Hargr. note, 144 ;) or tenants in common, as will best effectuate the intention of the testator. Ibid.] If lessee for life make a feoffment, and a letter of attorney to the lessor to make livery, and he doth make livery accordingly; in this case this [act of livery] shall not enure to bar him of his entry upon the feoffee for the forfeiture of his lessee. But if lessee for years make a feoffment in fee, and such a letter of attorney to the lessor, and he doth deliver seisin accordingly; this livery shall bind him for it shall be said to be his own livery, as in his own right, because the lessee had no freehold whereof to make livery. [At this day the livery could not proceed from the lessor, unless the feoffment were evidenced by writing, as his act.] *If a lessor make a deed of feoffment, and a *P. 221. letter of attorney to the lessee for years to give livery, and he doth it accordingly; this shall not K K be construed to extinguish or hurt his term (36), (36) See more amply in Com. Dig. Feoffment (B. 5.) Vin. Abr. Feoffment (L.) 1 Wood, 526. Bac. Abr. Feoffment (B.) In what cases livery shall be presumed at law, or supplied in equity, see before in page 205, and further in 1 Wood, 529. Vin. Abr. Feoffment (F. a.) The reader, it is presumed, from perusing this chapter, and consulting the authors referred to in it, must be well convinced of the excellent nature of the conveyance by feoffment with livery of seisin. This conveyance is now but very little used (as was observed before in page 200), but it is still nevertheless a formal, valid, and effectual mode of conveyance; it has however been of late years almost entirely superseded by the conveyance by lease and release. The editor apprehends he cannot explain this circumstance, and the origin and nature of the conveyance by lease and release, more satisfactorily to the reader, than by selecting particular passages from some of our most respectable legal writers, in the order of time in which they have written concerning it. Lord Bacon, in his Treatise on the Use of the Law, page 154, speaking of the inconveniences of the putting lands into use before the statute of Uses, and the frauds which were occasioned thereby, says, that" in the end of 27 "Hen. 8, the parliament, purposing to take away all those uses, and reduce the law to the "ancient form of conveying of lands by public livery of seisin, fine, and recovery, did ordain, "that where lands were put in trust or use, there the possession and estate should be presently carried out of the friends in trust, and settled and invested on him that had the 66 uses, for such term and time as he had the use." In Dalrimple on Feuds, p. 210, it is said, in England, although originally conveyances by deed of party were executed by acts of enfeoffment; which, as will appear from a comparison of Madox and Craig, correspond in their nature and progress to our (Scottish) charter and seisin; or by fines, which were originally an acknowledgment of such feoffinent in a court of record; yet, earlier than the time of Littleton, it had come into fashion, to transmit land by attornment if there was a tenant, and by lease and release if there was none. [Query if this was ever practised in Littleton's time, except in the particular case of enlarging the estate of a person who was actually the tenant. There is not any instance, it is believed, of a lease and release being used as parts of the same assurance.] In the first of which cases, the form of getting the consent of the tenant of the ground to the transfer, supplied the place of that livery, which could not be given; and, in the other case, the grantor gave to the grantee an imaginary lease, in order to put him into possession, and the next minute released; or, in the language of the law of Scotland, renounced all right or interest he had in the land. In attornment something was done to supply the want of livery, and in lease and release the entry gave livery; but a statute of Hen. 8, by making provisions concerning a form of conveyance, which had been before in use, enabled people to dispense with these two shadows of a form, and with the circuit of a feoffment altogether. The form of conveyance by bargain and sale, made secure by writing and enrolment, by virtue of this statute, corresponds to the disposition without enfeoffment in Scotland. This last with us doth not transfer; it is only a step to the transfer; but in England, on a bargain and sale, all notion of a superior or delivery is lost: the moment the deed is enrolled, the estate, to almost all effects whatever, is vested ab initio ; nor can there be any dispute between competitor purchasers, except what arises from the dates of their respective enrolments. [The first bargain and sale will prevail, if enrolled in due time, although there is a prior enrolment of a second bargain and sale.] In 1 Wood's Conveyancing, p. 714, a conveyance by lease and release is described to be, where he who is to convey any lands or tenements first makes a lease (or bargain and sale,) of the premises to the person to whom the same is to be conveyed for six months, a year, &c. but usually for a year, to the intent that by virtue thereof the lessee may be in the actual possession of the premises granted by the lease, (or bargain and sale,), and intended to be released to him; and then the lessee (or bargainee) by virtue of the statute of the 27 Hen. 8, c. 10, for transferring uses into possession, is enabled to take a grant or release of the reversion or inheritance of the said lands, to the use of himself and his heirs for ever, &e. and then a release (usually dated the day next after the date of the lease, reciting the said lease and declaring the uses) is accordingly made; which, in this case, is a conveyance of statute of Uses (27 Hen. 8, c. 10,) has incorpo- And so we come to another kind of deed of one's right or interest that he has in a thing to another who has the possession thereof; [or rather, a precedent estate therein.] A lease and release are but one conveyance, [or rather, parts of the same assurance,] and in the nature of one deed. 2 Mod. 252. Lease and release is now become the most common conveyance of lands. It amounts to a feoffment, [or rather, it answers the purposes of a feoffment, considered simply as a conveyance]; for by the said statute the uses are transferred into the possession, so that thereby the place of livery of seisin is supplied; which indeed saves much trouble, especially when the bargainor, &c. lives at a distance from the premises in which case a letter of attorney to make livery was obliged to be made; otherwise the bargainor, &c. was to deliver seisin in person. Mr. Justice Blackstone, treating of the statute of Uses, (in the second volume of his Commentaries, p. 337,) says, The only service to which that statute is now consigned is, in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only ancient conveyance of corporeal freeholds; the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead. And, in the same volume, p. 339, describing the conveyance by lease and release, says, That mode of conveyance was first invented by Serjeant Moore, soon after the statute of Uses, and now the most common of any, and therefore not to be shaken; though very great lawyers, (as particularly Mr. Noy,) have formerly doubted its validity. It is thus contrived: a lease, or rather bargain and sale upon some pecuniary [should be valuable] consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now this, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the statute immediately annexes the possession [read, estate.] He therefore, being thus in possession, is capable of receiving a release of the freehold and reversion; which, we have seen before, must be made to a tenant in possession; and accordingly, the next day, a release is granted to him. This is held to supply the place of livery of seisin; and so a conveyance by lease and release is said to amount to a feoffment. Mr. Hargrave, in note 3, to the 13th edition of Coke's Littleton, 48 a, says, But since the introduction of uses and trusts, and the statute of 27 Hen. 8, for transferring the possession to the use, the necessity of livery of seisin, for passing a freehold in corporeal hereditaments, has been almost wholly superseded; and, in consequence of it, the conveyance by feoffment is now very little in use. Before the statute of Uses equitable estates of freehold might be created through the medium of trusts without livery, and by the operation of the statute legal estates of freehold may now be created in the same way. Those who framed the statute of Uses evidently foresaw that it would render livery unnecessary to the passing of freehold, and that a freehold of such things as do not lie in grant would become transferrable by parol only, without any solemnity whatever. To prevent the inconveniences which might arise from a mode of conveyance so uncertain in the proof, and so liable to misconstruction and abuse, it was enacted, in the same session of parliament, that an estate of freehold should not pass by bargain and sale only, unless it was by indenture enrolled. See 27 Hen. 8, c. 16. The objects of this provision evidently were, first, to force the contracting parties to ascertain the terms of the conveyance, by reducing it into writing; secondly, to make the proof of it easy by requiring their seals to it, and consequently the presence of a witness; and lastly, to prevent the frauds of secret conveyances, by substituting the more effectual notoriety of enrolment for the more ancient one of livery. But the latter part of this provision, which, if it had not been evaded, would have introduced almost an universal register of conveyances of the freehold, in the case of corporeal hereditaments, was soon defeated by the invention of the conveyance by lease and release, which sprung from omitting to extend the statute to |