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, by force and virtue of the grant, or otherwise the grant is void. An attornment is no other in effect, but when the tenant hath heard of the grant made by his lord, that the same tenant do agree by word to the said grant, as to say to the grantee, I agree to the grant made to you, &c. or I am well content with the grant made to you; but the most common attornment is, to say, Sir, I attorn to you by force of the said grant, or I become your tenant, &c. or to deliver to the grantee a penny, or a halfpenny, or a farthing, by way of attornment.

Co. LIT. 309 a, b. "The tenant must attorn to the grantee in the life of the grantor, &c." And so must he also in the life of the grantee: and this is understood of a grant by deed. And the reason hereof is, for that every grant must take effect as to the substance thereof in the life both of the grantor and the grantee. And in this case if the grantor dieth before attornment, the seigniory, rent, reversion, or remainder descend to his heir; and therefore after his decease the attornment cometh too late: so likewise if the grantee dieth before attornment, an attornment to the heir is void, for nothing descended to him: and if he should take, he should take it as a purchaser, where the heirs were added but as words of limitation of the estate, and not to take as purchasers.

But if the grant were by fine, then albeit the conusor or conusee dieth, yet the grant is good. For by fine levied the state doth pass to the conusee and his heirs; and the attornment to the conusee or his heirs at any time to make privity to distrain is sufficient. But all this is to be taken as Littleton understood it, viz. of such grants as have their operation by the common law. For since Littleton wrote, if a fine be levied of a seigniory, &c. to another to the use of a third person and his heirs, he and his heirs shall distrain without any attornment, because he is in by the Statute of 27 H. 8, cap. 10, by transferring of the state to the use, and so he is in by act in law.1

So

And so it is, and for the same cause, if a man at this day by deed indented and enrolled according to the Statute, bargaineth and selleth a seigniory, &c. to another, the seigniory shall pass to him without any attornment; and so it is of a rent, a reversion, and a remainder. as the law is much changed, and the ancient privilege of tenants, donees, and lessees much altered concerning attornments since Littleton wrote. But if the conusee of a fine before any attornment by deed indented and enrolled, bargaineth and selleth the seigniory to another, the bargainee shall not distrain, because the bargainor could not distrain. Et sic de similibus; for nemo potest plus juris ad alium transferre quam ipse habet. Vide Sect. 149, where upon a recovery, the recov

eror shall distrain and avow without attornment.

1 An attornment was not necessary where the reversion was transmitted by de

scent, escheat, or devise. 2 Shep. Touch. (Preston's ed.) 256, 257.

A grant to the king, or by the king to another, is good without attorument, by his prerogative.

LIT. §§ 567-569. Also, if a man letteth tenements for term of years, by force of which lease the lessee is seised, and after the lessor by his deed grant the reversion to another for term of life, or in tail, or in fee; it behooveth in such case that the tenant for years attorn, or otherwise nothing shall pass to such grantee by such deed. And if in this case the tenant for years attorn to the grantee, then the freehold shall presently pass to the grantee by such attornment without any livery of seisin, &c. because if any livery of seisin, &c. should be or were needful to be made, then the tenant for years should be at the time of the livery of seisin ousted of his possession, which should be against reason, &c.

Also, if tenements be letten to a man for term of life, or given in tail, saving the reversion, &c. if he in the reversion in such case grant the reversion to another by his deed, it behooveth that the tenant of the land attorn to the grantee in the life of the grantor, or otherwise the grant is void.

In the same manner is it, if land be granted in tail, or let to a man for term of life, the remainder to another in fee, if he in the remainder will grant this remainder to another, &c. if the tenant of the land attorn in the life of the grantor, then the grant of such a remainder is good or otherwise not.1

ST. 4 ANNE (1705), c. 16, § 9. And be it further enacted by the authority aforesaid, That from and after the said first day of Trinity term [1706], all grants or conveyances thereafter to be made, by fine or otherwise, of any manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual, to all intents and purposes, without any attornment of the tenants of any such manors, or of the land out of which such rent shall be issuing, or of the particular tenants upon whose particular estates any such reversions or remainders shall and may be expectant or depending, as if their attornment had been had and made.2

1 See Lit. §§ 579 et seq. “Sir Will. Cordall, Mr. of the Rols [1557–1581], denied to compell one to attorn here that was at liberty by the common law, in the Case of Sir John Windham.

"Chancellor Bromely likewise denied such compulsion generally, but where the party quarrelled with the particular tenant's estate or entereth into some part of the lands in demise, or hath covenanted for recompense for non-attornment, there he utterly denieth to enforce the attornment. Pasch. 21 Eliz. [1579] in Case of Philips and Doctor Sandford." Cary, 5.

Semble, contra in the early law. 1 P. & M. Hist. (2d ed.) 347, 348; 2 ib. 93.

2 For similar statutes in the United States, see Stimson, Am. Stat. Law, § 2009. "Formerly, in order to constitute a privity of estate between the purchaser of the reversion and the lessee, so as to enable the former to maintain an action of debt for rent, attornment was necessary. But by St. 4 Anne, c. 16, § 9, a grant of the reversion is good and effectual without attornment. Moss v. Gallimore, 1 Doug. 279. That statute having been passed long before the Revolution, and this provision being

SECTION IV.

RELEASE AND SURRENDER.

LIT. SS 444, 445, 459, 460. Releases are in divers manners, viz. releases of all the right which a man hath in lands or tenements, and releases of actions personals and reals, and other things. Releases of all the right which men have in lands and tenements, &c. are commonly made in this form, or of this effect.

Know all men by these presents, that I, A. of B. have remised, released, and altogether from me and my heirs quiet claimed: (me A. de B. remisisse, relaxasse, et omnino de me et hæredibus meis quietum clamasse) or thus, for me and my heirs quiet claimed to C. of D. all the right, title and claim (totum jus, titulum et clameum) which I have, or by any means may have, of and in one messuage with the appurtenances in F. &c. And it is to be understood, that these words, remisisse, et quietum clamasse, are of the same effect as these words, reluxasse.

Also, if a man letteth to another his land for term of years, if the lessor release to the lessee all his right, &c. before that the lessee had entered into the same land by force of the same lease, such release is void, for that the lessee had not possession in the land at the time of the release made, but only a right to have the same land by force of the lease. But if the lessee enter into the land, and hath possession of it by force of the said lease, then such release made to him by the feoffor, or by his heir, is sufficient to him by reason of the privity which by force of the lease is between them, &c.

In the same manner it is, as it seemeth, where a lease is made to a man to hold of the lessor at his will, by force of which lease the lessee hath possession: if the lessor in this case make a release to the lessee of all his right, &c. this release is good enough for the privity which is between them; for it shall be in vain to make an estate by a livery of seisin to another, where he hath possession of the same land by the lease of the same man before, &c.

Co. LIT. 337 b. "Surrender," sursum redditio, properly is a yielding up an estate for life or years to him that hath an immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them.

a rule in amendment of the common law, we may probably consider it in force here. Commonwealth v. Leach, 1 Mass. 61. But if otherwise, the rule itself is well established on the authority of long usage, and its adaptation to the more simple tenures, which were in use under our former government. Farley v. Thompson, 15 Mass. 25, 26." Per SHAW, C. J., in Burden v. Thayer, 3 Met. 76, 78.

SECTION V.

DEVISE.1

LIT. § 167. Also, in some boroughs, by the custom, a man may devise by his testament his lands and tenements, which he hath in fee simple within the same borough at the time of his death; and by force of such devise, he to whom such devise is made, after the death of the devisor, may enter into the tenements so to him devised, to have and to hold to him, after the form and effect of the devise, without any livery of seisin thereof to be made to him, &c.2

SECTION VI.

DISSEISIN AND OTHER OUSTER, AND REMEDIES THEREFOR.

LEAKE, Part I. p. 56. Disseisin was a wrongful entry upon the land and ouster or dispossession of the freeholder. The seisin de facto thereby obtained had the same effect as a rightful seisin in conferring an apparent title to the land, and the means of alienation by livery. The disseisee retained a mere right of entry.

Disseisin of the tenant of a particular estate disseised or divested all the estates in remainder or reversion, and converted them into mere rights of entry, exercisable in their order of succession.

CHALLIS, REAL PROP. (2d ed.) 371-374. By the common law, any person having actual possession (not necessarily actual seisin) of lands, could, by a feoffment, give to any person, other than the person having the next or the immediate estate of freehold in the lands, an immediate estate of freehold, having any quantum. If the feoffor was actually seised, and the estate which passed by the feoffment was no greater than the estate of the feoffor, the feoffment took effect rightfully; but if the feoffor was not actually seised, or if the estate which passed by the feoffment was greater than his estate, the feoffment was styled a tortious feoffment, and was said to take effect by wrong.

In accordance with the maxim that no one can qualify his own wrong, a tortious feoffment devested the whole fee simple out of the rightful owner or owners. It does not follow that the tortious feoffment was necessarily a feoffment in fee simple; and it might in fact be for a less estate. In such a case, the feoffee took only the less estate, but the whole fee simple was divested out of the rightful owner 1 See 2 P. & M. Hist., bk. 2, c. 6, § 3.

2 On the general introduction of wills of land by statute, see post, 417.

or owners, and such part of it as was not disposed of by the feoffment became vested in the feoffor by way of a tortious reversion upon the tortious particular estate created by the feoffment.

The tortious operation of feoffments made after 1st October, 1845, is prevented by 8 & 9 Vict. c. 106, s. 4.

The possession of a termor for years, or tenant at will, or by sufferance, sufficed to enable the termor, or tenant, to make a tortious feoffment; and thus to convey an immediate estate or freehold which fulfilled many of the purposes of a rightful estate, though it afforded no defence against the title of the rightful owner. Upon the subject generally, and especially upon the case of Doe v. Horde, 1 Burr. 60, in which Lord Mansfield, striving after an unattainable equity, did his best to throw the law into confusion, see Butl. n. 1 on Co. Litt. 330 b.

If a tortious feoffment was made by any person other than a tenant in tail actually seised, the person rightfully entitled (or any other person acting in his name, even though without his assent) might at common law destroy the tortious estate of the feoffee by mere entry (Co. Litt. 258 a); but if the feoffee's heir had succeeded by inheritance before entry made, the heir's estate could not be affected by entry, and the rightful claimant was put to his action. (Litt. sect. 382.) His entry was technically said to be tolled by descent cast. Entry was tolled by a descent cast in fee tail (when the disseisor made a gift in tail) as well as in fee simple. (Ibid. sect. 386.) But on the extinction of the entail by failure of issue, the entry was revived against the remainderman or reversioner. (Co. Litt. 238 b.)

The 3 & 4 Will. 4, c. 27, s. 39, enacts that no descent cast after 31st December, 1833, shall toll any right of entry. This enactment made the learning of descents cast, and also of continual claim whereby rights of entry might be protected therefrom, equally obsolete.

A feoffment, made by a tenant in tail actually seised, operated as a discontinuance of the estate tail, and devested all remainders, and the reversion, expectant upon it, unless they were vested in the king. (Stone v. Newman, Cro. Car. 427, at p. 428.) By such continuance the persons entitled under the entail, and in remainder or reversion, were barred of their right of entry, and respectively put to their action as the only means to enforce their claims.

The learning relating to discontinuance, though obsolete in respect to the common practice, is still sometimes of practical importance. In 1884 a case was litigated in the House of Lords in which the validity of a claim partly depended upon the properties at the common law of a tortious fee simple, which had been gained by a discontinuance effected in the preceding century, by a feoffment made by the survivor of two joint donees in special tail.

In all cases where the right of entry was tolled or barred, the needful action to recover the seisin was a real action. An action of ejectment (ejectione firma) would not suffice. (2 Prest. Abst. 328.)

1 See Lit. §§ 414-443. — ED.