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 seisin, as representing the freehold interest of the tenant, was at common law made use of for the purpose of a conveyance of such interest, the latter being in fact transferable only by a delivery of the possession of the land, called "livery of seisin." This livery of seisin was effected by the delivery on the land, "in name of seisin of the land," of a turf or twig (livery in deed), or by a statement made in view of the land to the effect that possession was given, followed by entry by the alienee (livery in law). This ceremony was usually accompanied by a deed or charter "of feoffment," as it was called, attesting the livery of seisin, and stating the purpose, nature, and extent of the transfer, the whole transaction being known as a "feoffment."53
Since a feoffment operated merely by a transfer of possession, it resulted that it might be wrongfully made by one who was rightfully in possession in behalf of the owner of the freehold; and so a tenant for life or years, by a livery of seisin to another, could in effect disseise the owner of. the freehold. Such a transaction was known as a "tortious" feoffment or alienation, and was at common law a cause for forfeiture of his estate by the tenant guilty of the wrong.54
Interests in things which were incapable of actual possession, that is, incorporeal things, and also estates in reversion and remainder, in the case of which the possession was in the owner of the particular estate, were not capable of livery of seisin, and could be conveyed only by deed, called a deed of "grant." Hence the distinction which existed at common law between things which "he in livery" and those which "lie in grant."55 When the grant was of a manor, or a right of lordship (a seigniory), to which tenure with rent or other services were incident, it was necessary that the tenant consent to hold of the new lord, such consent being known as "attornment." Likewise, as we shall see later, in case of the grant of a reversion expectant on a present estate, attornment by the tenant in possession was necessary. The necessity of attornment was afterwards dispensed with by statute (4 Anne, c. 16, Sec.Sec. 9, 10; A. D. 1705), and it is no longer necessary in England or in this country.56 Since a grant did not involve livery of seisin, it could convey only the estate of the grantor, and consequently it could never take effect as a tortious conveyance.57
52. "In conclusion, then, the ancient doctrine of disseisin of land and chattels was not an accident of English legal history, but a rule of universal law. Brian's dictum, that the wrongful possessor had the property and the dispossessed owner only the right of property, rightly understood, is not a curiosity for the legal antiquarian, but the working principle for the determination of controversies for all time." Prof. J. B. Ames in 3 Harv. Law Rev. at p. 345.
53. Litt. Sec. 59; Co. Litt. 48, 49; 4 Cruise, Dig. tit. 32, c. 1, Sec. 18; 2 Blackst. Comm. 315, and appendix I.; Thoroughgood's Case, 9 Coke, 136b, Digby, Hist. Real Prop. 145.
54. Litt. Sec.Sec. 415, 416, 611; Co. Litt. 233b, 330b, and Butler's notes.
55. Co. Litt. 9a, 9b, 49a, 172a: Shep. Touch. 228; Leake, Prop. in Land, 52 et seq.; Challis, Real Prop. 47, 51.
56. Litt. Sec.Sec. 551, 567, 568; Co.
Litt. 309a, and Butler's note. See post, Sec. 53(b).
57. Litt. Sec. 609, 610; Co. Litt. 330a, Butler's note; 4 Kent, Comm. 490.