Having now considered the most usual freehold estates which are holden in lands, and the varieties of holding arising from joint tenancies and tenancies in common, we proceed to the means to be employed for the transfer of these estates from one person to another. And here we must premise that, by enactments of the present reign (a), the conveyance of estates has been rendered, for the future, a matter independent of that historical learning which was formerly necessary. But, as the means formerly necessary for the conveyance of freeholds depend on principles, which still continue to exert their influence throughout the whole system of real property law, these means of conveyance and their principles must yet continue objects of the early attention of every student: of these means the most ancient is a feoffment with livery of seisin (b), which accordingly forms the subject of our present chapter.
The feudal doctrine explained in the fifth chapter, that all estates in land are holden of some lord, necessarily implies that all lands must always have some feudal holder or tenant. This feudal tenant is the freeholder, or holder of the freehold; he has the feudal possession, called the seisin (c), and so long as he is seised, nobody else can be. The freehold is said to be in him, and till it is taken out of him and given to some other, the land itself is regarded as in his custody or possession. Now this legal possession of lands - this seisin of the freehold - is a matter of great importance, and much formerly depended upon its proper transfer from one person to another; thus we have seen that, before the act for the amendment of the law of inheritance, seisin must have been acquired by every heir before he could himself become the stock of descent (d). The transfer or delivery of the seisin, though it accompanies the transfer of the estate of the holder of the seisin, is yet not the same thing as the transfer of his estate. For a tenant merely for life is as much a feudal holder, and consequently as much in possession, or seised, of the freehold, as a tenant in fee simple can be. If, therefore, a person seised of an estate in fee simple were to grant a lease to another for his life, the lessee must necessarily have the whole seisin given up to him, although he would not acquire the whole estate of his lessor; for an estate for life is manifestly a less estate than an estate in fee simple. In ancient times, however, possession was the great point, and, until the enactments above referred to(e), the conveyance of an estate of freehold was of quite a distinct character from such assurances as were made use of when it was not intended to affect the freehold or feudal possession. For instance, we have seen that a tenant for a term of years is regarded in law as having merely a chattel interest (f); he has not the feudal possession or freehold in himself, but his possession, like that of a bailiff or servant, is the possession of his landlord. The consequence is, that any expressions in a deed, from which an intention can be gathered to grant the occupation of land for a certain time, have always been sufficient for a lease for a term of years however long(g); but a lease for a single life, which transfers the freehold, formerly required technical language to give it effect.
Feoffment with livery of seisin.
(a) Stat. 8 & 9 Vict. c. 10G, repealing stat. 7 & 8 Vict. c. 76. (b) 2 Black. Com. 310.
(c) Co. Litt. 153 a; Watkins on Descents, 108 (113, 4th ed.).
(d) Ante, pp. 96, 97
(e) Stat, 8 & 9 Vict. c. 106, repealing stat. 7 & 8 Vict. c. 76. (f) Ante, p. 8.
A feoffment with livery of seisin was then nothing more than a gift of an estate in the land with livery, that is, delivery of the seisin or feudal possession (h); this livery of seisin was said to be of two kinds, a livery in deed and a livery in law. Livery in deed was performed "by delivery of the ring or haspe of the doore, or by a branch or twigge of a tree, or by a turfe of land, and with these or the like words, the feoffor and feoffee, both holding the deed of feoffment and the ring of the doore, haspe, branch, twigge or turfe, 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 forme and effect of this deed,' or by words without any ceremony or act, as the feoffor being at the house doore, or within the house, e Here I deliver you seisin and possession of this house, in the name of seisin and possession of all the lands and tenements contained in this deed'" (i). The feoffee then, if it were a house, entered alone, shut the door, then opened it, and let in the others (k). In performing this ceremony, it was requisite that all persons who had any estate or possession in the house or land, of which seisin was delivered, should either join in or consent to making the livery, or be absent from the premises; for the object was to give the entire and undisputed possession to the feoffee (l). If the feoffment was made of different lands lying scattered in one and the same county, livery of seisin of any parcel, in the name of the rest, was sufficient for all, if all were in the complete possession of the same feoffor; but if they were in several counties, there must have been as many liveries as there were counties (m). For if the title to these lands should come to be disputed, there must have been as many trials as there were counties; and the jury of one county are not considered judges of the notoriety of a fact in another (n). Livery in lata was not made on the land, but in sight of it only, the feoffor saying to the feoffee, "I give you yonder land, enter and take possession." If the feoffee entered accordingly in the lifetime of the feoffor, this was a good feoffment; but if either the feoffor or feoffee died before entry, the livery was void(o). This livery was good, although the land lay in another county (p); but it required always to be made between the parties themselves, and could not be deputed to an attorney, as might livery in deed(q). The word give was the apt and technical term to be employed in a feoffment (r); its use arose in those times when gifts from feudal lords to their tenants were the conveyances principally employed.