Livery in deed.
(g) Bac. Abr. tit. Leases and Terms Cor Years (K). (h) Co. Litt. 271 b, n. (1). (i) Co. Litt. 43 a.
(k) 2 Black. Com. 315; 2 Sand. Uses. 4.
(l) Shep. Touch. 213; Doe d. Reed v. Taylor, 5 Barn. & Adol. 575.
In addition to the livery of seisin, it was also necessary that the estate which the feoffee was to take should be marked out, whether for his own life or for that of another person, or in tail, or in fee simple, or otherwise. This marking out of the estate is as necessary now as formerly, and it is called limiting the estate. If the feudal holding is transferred, the estate must necessarily be an estate of freehold; it cannot be an estate at will, or for a fixed term of years merely. Thus the land may be given to the feoffee to hold to himself simply; and the estate so limited is, as we have seen (s), but an estate for his life (t), and the feoffee is then generally called a lessee for his life; though when a mere life interest is intended to be limited, the laud is usually expressly given to hold to the lessee "during the term of his natural life"(u). If the land be given to the feoffee and the heirs of his body, he has an estate tail, and is called a donee in tail(x). And in order to confer an estate tail, it is necessary (except in a will, where greater indulgence is allowed), that words of procreation, such as heirs of his body, should be made use of; for a gift of lands to a man and his heirs male is an estate in fee simple, and not in fee tail, there being no words of procreation to ascertain the body out of which they shall issue (y); and an estate in lands descendible to collateral male heirs onlv, in entire exclusion of females, is unknown to the English law (z). If the land be given to hold to the ffeoffee and his heirs, he has an estate in fee simple, the largest estate which the law allows. In every conveyance (except by will) of an estate of inheritance, whether in fee tail or in fee simple, the word heirs is necessary to be used as a word of limitation to mark out the estate. Thus if a grant be made to a man and his seed, or to a man and his offspring, or to a man and the issue of his body, all these are insufficient to confer an estate tail, and only give an estate for life for want of the word heirs (a); so if a man purchase lands to have and to hold to him for ever, or to him and his assigns for ever, he will have but an estate for his life, and not a fee simple (b). Before alienation was permitted, the heirs of the tenant were the only persons, besides himself, who could enjoy the estate; and if they were not mentioned, the tenant could not hold longer than for his own life(c); hence the necessity of the word heirs to create an estate in fee tail or fee simple. At the present day, the free transfer of estates in fee simple is universally allowed; but this liberty, as we have seen (d), is now given by the law and not by the particular words by which an estate may happen to be created. So that, though conveyances of estates in fee simple are usually made to hold to the purchaser, his heirs and assigns for ever, yet the word heirs alone gives him a fee simple, of which the law enables him to dispose; and the remaining words, and assigns for ever, have at the present day no conveyancing virtue at all; but are merely declaratory of that power of alienatiou which the purchaser would possess without them.
Livery in law.
The word give to be used.
The estate taken must be marked out, or limited.
(m) Litt. s. 61. But a manor, the site of which extended into two counties, appears to have been an exception to this rule; for it was but as one thing for the pin-poseof a feoffment; Perkins,sect. 227. Sec, however, Bale's M.S., Co. Litt. 50 a, n. (2).
(n) Co.Litt.50a; 2 Black.Com. 316.
(o) Co. Litt. 48 b; 2 Black. Com. 316.
(p) Co. Lill. 48 b
(q) Co Litt 52 b.
(r) Co litt. 9 a;2 Black. Com.
An estate for life.
An estate tail.
An estate in fee simple.
The word heirs to be used.
(s) Ante, p. 19.
(t) Litt. s. 1; Co. Litt. 42 a.
(u) Ante, p. 23.
(.x) Litt. s. 57; ante, p. 35.
(y) Litt. s. 31; Co. Litt. 27 a 2 Black. Com. 115; Doe d. Bruno v. Ma/rtyn, 8 Barn. & Cress. 497.
(z) But a grant of arms by the crown to a man and bis heirs male, without saving " of the body," is good, and they will descend to his heirs male, lineal or collateral. Co. Litt. 27 a.
The formal delivery of the seisin or feudal possession, which always took place in a feoffment, rendered it, till recently, an assurance of great power; so that, if a person should have made a feoffment to another of an estate in fee simple, or of any other estate, not warranted by his own interest in the lands, such a feoffment would have operated by wrong, as it is said, and would have conferred on the feoffee the whole estate limited by the feoffment along with the seisin actually delivered. Thus if a tenant for his own life should have made a feoffment of the lands for an estate in fee simple, the feoffee would not merely have acquired an estate for the life of the feoffor, but would have become seised of an estate in fee simple by wrong; accordingly, such a feoffment by a tenant for life was regarded as a cause of forfeiture to the person entitled in reversion; such a feoffment being in fact a conveyance of his reversion, without his consent, to another person. In the same manner, feoffments made by idiots and lunatics appear to have been only voidable and not absolutely void (e); whereas their conveyances made by any other means are void in toto; for, if the seisin was actually delivered to a person, though by a lunatic or idiot, the accompanying estate must necessarily have passed to him, until he should have been deprived of it. Again, the formal delivery of the seisin in a feoffment appears to be the ground of the validity of such a conveyance of gavelkind lands, by an infant of the age of fifteen years(f); although a conveyance of the same lands by the infant, made by any other means, would be voidable by him, on attaining his majority (g). By the act to amend the law of real property (h), it is, however, now provided, that a feoffment shall not have any tortious operation; but a feoffment made under a custom by an infant is expressly recognised (i).