This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The transfer of land by "livery of seisin," which has already been briefly described,1 was ordinarily known as a "feoffment," and the terms were, it seems, used interchangeably.2 The person making the transfer was known as the "feoffor," and the transferee as the feoffee." The livery was ordinarily accompanied by a "charter of feoffment," declaring the limitations of the estate or estates vested in the feoffee, but the livery of seisin was alone necessary until the passage of the Statute of Frauds, which in effect declared that all estates created by livery of seisin only, or by parol, and not put in writing and signed by the parties so making and creating the same, or their agents, should be estates at will merely.3 This mode of transfer was available only in the case of estates accompanied by seisin, that is, estates of freehold in possession, and was not available for the transfer of rights in incorporeal things.4
Since a feoffment operated on the possession alone, any person having possession of land, even though, as in the case of a tenant for years, not legally seised, could, by feoffment to a stranger, create in the latter an estate of any quantum; and so one having seisin as of an estate for life could create in another a greater estate. Since the effect of such a transfer of seisin was to operate wrongfully upon the interest of the owner of the reversion or remainder, it was termed a "tortious" conveyance.5
1. Ante, Sec. 14.
2. Challis, Real Prop. (3rd Ed.) 362.
3. 29 Car. II. c. 3, Sec. 1. See Co. Litt. 48; 2 Blackst. Coniin. 313;
Challis, Real Prop. 370. ;
4. Sheppard's Touchstone, 228; Williams, Real Prop. 31; 2 Blackst. Comm. 314. See ante, Sec. 16.
Effect of execution - Return or cancellation.
Transfer by feoffment is now in effect obsolete, though occasionally the theory of such a transfer may be resorted to for the purpose of upholding a conveyance otherwise invalid or ineffective to carry out the evident purpose of the parties.6 In many states the statutes expressly dispense with the necessity of livery of seisin for the conveyance of real property.7
- Fines and recoveries. Fines and recoveries were collusive actions brought for the purpose of effecting a transfer of interests in land not otherwise transferable. They have been abolished by statute in England, and in no state of this country are they, it is believed, in practical use.8 They were for many years utilized for the purpose of barring estates tail, and thereby.evading the statute De Donis Conditionalibiis,9 but they were appropriate and necessary for other purposes, the most important of which was the transfer-of land by a married woman, she not being competent to make an ordinary conveyance.
- Grant. A grant was, at common law, made use of for the transfer of such interests in land as, from their nature, were incapable of transfer by feoffment, that is, of which there could be no seisin, including all rights in another's land, or other incorporeal things real, and also estates in remainder or reversion upon a free hold estate.10 A grant always involved a "deed,"
5. Co. Litt. Sec. 611, and Butler's note; Co. Litt. 251a, 330b; Challis, Real Prop. 371.
6. Witham v. Brooner, 63 111. ::44; Ware v. Richardson. 3 Md. 505; Rogers v. Sisters of Charity 97 Md. 556; Hunt v. Hunt, 14 Pick. (Mass.) 374; Carr v. Richardson, 157 Mass. 576, 32 N. E. 958; Eckman v. Eckman, 68 Pa.
7. 1 Stimson's Am. St. Law, Sec. 1470.
8. These proceedings are explained in 2 Blackst. Coram. 348.
9. Ante, Sec. 28.
10. Co. Litt. 9b, 49a, 172a; 2 Blackst. Comm. 317; 2 Sanders. Uses & Trusts (5th Ed.) 29. See ante, Sec. 16.
That is, a writing under seal, since no other form of writing bad, at common law, any legal effect.11
At common law the lord's right to the services of the tenant, the "seignory," could not be transferred to another without "attornment" by the tenant, that is, acceptance of the new lord. The same principle applied in the case of the grant of a reversion, it not being valid unless the tenant attorned to the grantee.12 The necessity of attornment was, as before stated, abolished in England by 4 Anno, c. 16 Sec. 9, and is no longer recognized in this country.13
- Lease. A lease is a conveyance of an estate for life, for years, or at will, by one who has a greater estate. At common law, if the estate conveyed was for life, livery of seisin was required,14 but if for years or at will merely, an oral lease without livery was sufficient.15 By the Statute of Frauds, a writing was rendered necessary for the creation of an estate for years, excepting certain leases not exceeding three years from the making thereof.16 But, even at common law, a lease for years of an incorporeal thing was invalid unless in writing and under seal, since such a thing lay in grant for all purposes, and no other method of transfer thereof was recognized.15 The form and re quisites of a lease have been previously considered, in connection with the subject of estates for years.17a was utilized, at. common law, in cases in which the person to whom the conveyance was to be made was already in possession, so that no livery of seisin could be given unless he should first quit possession, which would have involved an idle multiplication of ceremonies.18 A release may be made to the tenant of a life estate by the owner of the reversion or remainder thereon, whether the life estate be one created by act of the parties,19 or one created by act of the law, such as as estate of dower or curtesy,20 the life estate being enlarged by the release to a fee simple or fee tail. A release may also be made by the owner of the reversion to the tenant of an estate for years or at will,21 but not to a tenant at sufferance.22 Releases thus made by a reversioner or remainderman to the particular tenants are said by the common law writers to enure by way of enlargement of the estate (enlarger Vestate).23 A mere interesse termini, that is, the right of a lessee who has not yet entered under his lease, does not entitle him to take a release by way of enlargement,24 it being necessary that the lessee be in actual possession, or in legal possession by force of the Statute of Uses.25 A release, in order to enlarge the particular estate to one of inheritance, must, at common law, contain the word "heirs," as in the case of a conveyance between strangers.20