4 T. R. 94. But by the late statute 49 Geo. 3. c. 121. s. 19, it is enacted, that where a bankrupt is entitled to any lease, and the assignees shall accept the same as part of his estate, the bankrupt shall not be liable to pay the rent accruing due after such acceptance of the same, nor be sued in respect of any subsequent non-performance of the covenants and agreements therein contained. If the tenant be not assignee of the whole term, he is then in fact only an under-tenant, and is not liable to any action of covenant. Holford v. Hatch, Doug. 182. Et vid. Derby (Earl) v. Taylor, 1 East. 502. And it has been determined that the devisee of an equitable estate is not liable as assignee. The Mayor, &c. of Carlisle v. Blamire, 8 East. 487. As to implied covenants, see ante, p. 252, 253. n. (K). The last part of a deed is the conclusion, which mentions the execution of the deed, and the date either expressly, or by reference to some day and year previously mentioned.-[Ed.] OF THE SEVERAL KINDS OF DEEDS OR CONVEYANCES: Definition a feoff. ment. For the antiquity of FEOFFMENT is derived of the word of art feodum, quia est donatio feodi (A); for the ancient writers of the law called a feoffment donatio, of the verb do or dedi, which is the aptest word of feoffment (1). And that word Ephron bridge, ca. 9. 8 E. 3. used (*), when he infeoffed Abraham, saying, I give thee Feoffments, see the second part of the Institutes, Marle 24. 18 H. 6. 14. 39 H. 6. 39. (*) Genesis 25. the field of Machpelah over against Mamre, and the cave (1) See more as to the word feoffment, in Mad. Form. Angl. Dissert. p. 3. 2 Inst. 110.-[Hargr. n. 5. 9 a.] (A) 'The general nature of deeds having been explained, we now come to consider their several species, together with their respective incidents and qualities. All deeds by which lands or tenements may be conveyed, derive their effect, either from the common law, or from the statute of uses. Of conveyances by the common law some may be called original or primary, which are those by means whereof the estate is originally created or arises others are derivative or secondary, whereby an estate, already created, is enlarged, restrained, transferred, or extinguished. Original conveyances are, 1. Feoffments; 2. Gifts; S. Grants; 4. Leases; 5 Exchanges; 6. Partitions. Derivative conveyances are, 1. Releases; 2. Confirmations; 3. Surrenders; 4. Assignments; 5. Defeazances. A third class which are used not to convey, but to charge lands, and to discharge them again, are, 1. Bonds; 2. Recognizances; 3. Defeazances on Bonds. 4 Cru. Dig. 100, 101. A feoffment, which is evidently taken from the breve testatum of the feudal law, originally signified the grant of a feud or fee, but by custom it came afterwards to signify a grant of a free inheritance to a man and his heirs; respect being had rather to the perpetuity of the estate granted, than to the feudal tenure. Mad. Form. Dissert. 4. A feoffment can only be made of corporeal hereditaments of which the actual possession may be delivered to the feoffee: for which reason corporeal hereditaments are said to be things that lie in livery, Infra, 9 a. This mode of conveyance, although it might formerly have been made by word without any writing, yet was usually made by writing; and it was then called a deed, or charter of feoffment. Shep. Touch. 203. But the mere signing and sealing a deed of feoffment was not sufficient to pass an estate of freehold, unless it was accompanied with a formal delivery of the possession, which was called livery of seisin; without which the feoffee had but an estate at will. Post, 48 a. This livery of seisin is no other than the pure feudal investiture, and was adopted in England for the same reason, namely, that the proprietor of each piece of land should be publicly known, in order that the lord might be always certain on whom he was to call for the military ser vices that were due for the land; and that strangers might know against whom they were to bring their præcipes. 5 Co. 84 b. Plowd. 302. 2 Bl. Com. 311. With respect to the operation of a feofiment, see infra, 9 a. and the note there.-[Ed.] therein I give thee, and all the trees in the field and the borders round about; all which were made sure unto Abraham for a possession, in the presence of many witnesses. (*) Vid. sect. 57. of Feoflments, sect. By a feoffment the corporeate fee is conveyed, and it properly betokeneth a conveyance in fee, as our author himself saith (*), in his Chapter of Tenant for Life. And yet sometimes improperly it is called a feoffment when an estate of freehold only doth pass: done est nosme general plus que n'est feoffment, car done est general a touts choses moebles sect. 259. et nient moebles, feoffment est riens forsque del soyle. And note, there is a difference inter cartam et factum; for carta is *intended a charter which doth touch inheritance, and so is not factum, unless it hath some other additions (2). A deed of feoffment is properly called charta feoffamenti (3), and yet if such a deed be denied, the plea is non est fac tum. #9 b. 36a. 9 a. Its nature and opera Littleton (sect. 1.) saith, "In all feoffments and grants.” Here he giveth the feoffment the first place, as the ancient tion. and the most necessary conveyance, both for that it is solemn and public, and therefore best remembered and proved, (b) Mirror, cap. 2. (a) and also for that it cleareth all disseisins, abatements, in- (a) Vid. sect. 59 & 66. trusions, and other wrongful or defeasible estates, where the entry of the feoffor is lawful (B), which neither fine, recovery, nor bargain and sale by deed indented and inrolled doth. And here is implied a division of fee, or inheritance, viz. (b) into corporeal, as lands and tenements which lie in livery, comprehended in this word feoffment, and may pass by livery by deed, or without deed, which of some is called hæreditas corporata, and incorporeal, (which lie in grant, and cannot pass by livery, but by deed, as advowsons, commons, &c. and of some is called hæreditas incorporata, and by the delivery (2) See further as to the distinction between charters and deeds, and the various other names of writings before and since the Conquest, in Mad. Form. Angl. Dissert. p. 2. and Mad. Hist. Exch. Pref. Ep. p. 8.-[Hargr. n. 1. 9 b.] (3) For the formal parts of a deed of feoffment, see ant. 6 a. (p. 240.) -[Hargr, n. 2. 36 a.] (B) And it turns all other estates into rights, so that a fine levied by the feoffor to the feoffee, or by the latter to a stranger, will bar them, if not avoided within the time prescribed by the statute. Watk. Conv. 95. 2 Bl. Com. 375. 2 Lev. 52. See further as to the advantages of this mode of conveyance, infra, 49 a. and the notes there.~[Ed.] sect. 15. & cap. 5. sect. 1. Bract. lib. 2. fol. 53. 366. 568. Fleta, lib. 3. cap. 1, 2. 15. Britton, 64. 102. 141, 142. agre Com. 171. Hill & 87 a. & fol. 63. 101, eth herewith. Pl. Grange. of the deed, the freehold, and inheritance of such inheritance, as doth lie in grant, doth pass) comprehended in this word Grant. And the deed of incorporeate inheritances doth equal the livery of corporeate. And therefore Littleton saith, in all Mirror, ca. 5. sect. 1. feoffments and grants, hæreditus, alia corporalis, alia incorporalis: corporalis est, quæ tangi potest et videri; incorporalis, quæ tangi non potest, nec videri. Britton, cap. 34. LITTLETON. [Sect. 59. 48 a.] 1. Livery of seisin ne cessary to a feoffment. 48 a. 18 E. 3. fol. 16. 10. 2 Ass. 1. 2 E.3.4. AND it is to be understood, that in a lease for years, by deed or without deed (4), there needs no livery of seisin (c) to be made to the lessee, but he may enter when he will by force of the same lease. But of feoffments made in the country, or gifts in tail, or lease for term of life; in such cases where a freehold shall pass, if it be by deed or without deed, it behoveth to have livery of seisin. "Livery of seisin." (5) Traditio, or deliberatio seisina, 41 E. 3. 17. 40 Ass. is a solemnity, that the law requireth for the passing of a freehold of lands or tenements by delivery of seisin thereof. (c) Intervenire debet solennitas in mutatione liberi tenementi, ne contingat donationem deficere pro defectu probationis (6). 43 E. 3. Feoff. 51. 303 b. Vid. sect. 66. (4) See ant. vol. 1. p. 630. n. (6). (5) For the origin and history of the transfer of lands by livery of seisin, see 2 Bl. Com. 311. Mad. Form. Angl. Dissert. 9. and Spelm. Gloss. and Du Fresn. Gloss. voce Investitura.-[Hargr. n. 2. 48 a.] (6) But since the introduction of uses and trusts and the statute of 27 H. 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 sante way. Those who framed the statute of uses evidently foresaw, that it would render livery unnecessary to the passing of a 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 inrolled. See 27 H. 8. c. 16. The objects of this provision evidently were, first, to force the contract. ing 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 inrolment 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 (C) Seisin is a technical term, to denote the completion of that investiture, by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. Fer Lord Mansfield, 1 Burr, 107.-[Ed.] And there be two kinds of livery of seisin, viz. a livery in cap. 15 & 18. Britt. (d) deed, and a livery in law. A livery in deed is when the Livery in deed defined. feoffor taketh the ring of the door, or turf or twig of the (d) Bracton, lib. 2. land, and delivereth the same upon the land to the feoffee in name of seisin of the land, &c. per hostium et per haspam et annulum vel per fustem vel baculum, &c. cap. 33. in fine fol. 87. Fleta, lib. 3. cap. 15. A. seised of an house in fee, and being in the house, (e) saith to B., I demise to you this house for term of my (e) 6 Co. 26. Sharp's life; this is a good beginning to limit the state, but here wanteth livery (7). A livery in deed may be done two man case. lemn act and words; (ƒ) See of this more sect. 60. (2 Rol. Abr. 7.) ner of ways. By a solemn act and words; as by delivery of May be made by a sothe ring or hasp of the door, or by a branch or twig of a tree, or by a turf of the land, and with (f) these or the like words, the feoffor and feoffee both holding the deed of feoffment, and the ring of the door, hasp, branch, twig, or turf; and the feoffor saying, Here I deliver you seisin and possession of this house, in the name of all the lands and tenements contained in this deed, according to the form and effect. of this deed; or by words without any ceremony or act (8); or by words without as the feoffor being at the house door, or within the house, any act. Here I deliver you seisin and possession of this house, in the 41 Ass. p. 10. 38 Ass. name of seisin and possession of all the lands and tenements contained in this deed; et sic de similibus: or, Enter into 39. you this house or land, and have and enjoy it according to the deed: or, Enter into the house or land, and God give you joy: or, I am content you shall enjoy this land according to the deed; or the like. For if words may amount to a livery within the view, much more shall it upon the land (9). But (Post, 37. Cro. Jam. if a man deliver the deed of feoffment upon the land, this the freehold in the case of corporeal hereditaments, was soon defeated by the invention of the conveyance by lease and relcase, which sprung from the omission to extend the statute to bargains and sales for terms of years; and the other parts of the statute were necessarily ineffectual in our courts of equity, because these were still left at liberty to compel the execution of trusts of the freehold though created without deed or writing. The inconveniences from this insufficiency of the statute of inrolments are now in some measure prevented by the 29 Ch. 2. c. 3. which provides against conveying any lands or hereditaments for more than three years, or declaring trusts (7) 9 Rep. 13. Thoroughgood's case. 48 a.] (8) "43 Ass. 10. 18 H. 6. 16. A. makes charter of feoffment to uses to B., and B. being on the land, A. says, I am content, you shall have this house and land according to the deed made to you; it is not livery, because it imports only assent and is future. H. 6 Jac. Maund's case. Ley n. 3." Hal. MSS.-See Ley 2. -[Hargr. n. 5. 48 a. (311).] (9) But Cro. Jam. 80. and Ley 2. seem contra.-[Hargr. n. 6. 48 a.] 41 E. 3. 17 b. P. 2. 38 E. 3. 11. 80.) |