PRINCIPLES OF CONVEYANCING, &c. &c. BOOK II. OF CONVEYANCES, AS THEY RELATE TO ESTATES. CHAP. I. OF A FEOFFMENT. A FEOFFMENT is a conveyance which operates by transmutation of possession: it is essential to its completion that the seisin be passed. Hence In Rees dem. Chamberlain v. Lloyd, Wightw. 123., a feoffment was tendered in evidence upon which no memorandum of livery of seisin was endorsed. The feoffment had been made for twenty-five years, and possession had gone along with it. On the one side it was contended that livery of seisin ought not to be presumed under thirty years, the Of livery, see Watk. n. xxix. to Gilb. Ten. it can only be adopted in cases where the seisin may be, and is actually to be, conveyed; as in the transfer of estates of freehold in possession. In the transfer of chattel interests there is no seisin to be conveyed, as the seisin remains in [See 5 Bar. & the freeholder: hence a term of years cannot be conveyed by feoffment. In the transfer of reversions or remainders on a freehold, the actual or corporal seisin is not concerned, as it continues in the particular tenants: Hence they cannot pass by feoffment, but by grant. So of equitable interests, &c. Adol. 575.] Hence, too, feoffments can only be made by a person in the actual seisin* to a person who Gilb. Ten. 72. is not in the actual seisin: and, therefore, one joint-tenant cannot enfeoff his companion, because his companion has the seisin already; each period at which it becomes unnecessary to prove deeds; on the other side it was urged that livery ought to be presumed after the expiration of twenty years, as possession for that length of time would bar a possessory action. The Court of Exchequer thought twenty years the best analogy, but did not give any decided opinion on the point, as the necessity of livery was superseded by its being recited in the deed that the feoffee was in possession, which it was held estopped the feoffor from saying otherwise. [But livery of seisin according to an indorsement thereof on the deed of feoffment will not be presumed within any period less than twenty years. Doe v. Marq. of Cleveland, 9 Bar. & Cress. 864. Doe v. Davies, 2 Mee. & Wel. 503.] [ See Doe v. Taylor, 5 B. & Adol. 575.] joint-tenant being seised per mie et per tout. But, as tenants in common, and coparceners as to some purposes, have several freeholds, they may enfeoff their companions of their respective shares. But a feoffment by a person having no right See 1 Burr.92. of property in the lands will pass them; because the moment he enters to give seisin he gains the fee simple in possession by wrong. dis into This mode of conveyance was, in many instances, the most advisable, as it cleared all seisins, &c. and turned all other estates rights; so that a fine, levied by the feoffor to the feoffee, or by the feoffee to a stranger, [would before the operation of the statutes abolishing fines have barred] them, if not avoided within the time prescribed by the statute. * But to give a fine this effect, one of the parties must have had the freehold. If a termor [previously to the above statutes] wished to acquire the fee he should have assigned the term to a trustee in trust for himself personally. Having then no legal interest in the land he might have entered and made a feoffment, on which a fine might have been levied, and the use thereof declared to himself in fee. The effect of the feoffment was to turn the estate and seisin of the trustee and reversioner into rights of entry; but the reversioner might have entered within five years from the last proclamation on the fine to revest his seisin, and if he did so, the term in the trustee would have been revested also, and the trustee would then stand possessed of it in trust for the original termor, 2 Lev. 52. The giving of livery, indeed, is often attended with inconvenience and expense when the feoffor resides at a distance from the lands; but this may be easily prevented by executing a power of attorney; and we may remember that [aggregate] corporations must always make attorneys, under their common seal, to deliver [and receive] seisin. A feoffment, therefore, is incompatible with any conveyance operating by way of use.* whose wrongful fee would then be destroyed: if the reversioner did not enter he would have been barred by nonclaim on the fine if he were not under disability, and the quondam termor would have acquired an indefeasible estate in fee, and he might then take an assignment of the term to attend the inheritance. If the first assignment of the term alluded to the intended feoffment the assignee would be a party to the disseisin, and the term would, it is apprehended, be forfeited, and the reversion accelerated into an estate in possession. This subject has occupied the attention of the courts, and the above is submitted to be the result of the decisions; which are the following:-Taylor v. Horde, 1 Burr. 60. 2 Cowp. 689. Jerrit v. Weare, 3 Price, 575. 3 Pres. Abs. Pref. ix. Doe v. Moody, 1 Sand. U. 40. [Sugd. V. & P. 261. note ed. 6.] 2 Pres. Conv. Pref. xxxii. Doe v. Lynes, 3 Barn. & Cress. 388. Reynolds v. Jones. 2 Sim. & Stu. 206. * The difference between conveyances at common law and conveyances which derive their effect from the statute of uses is thus stated by Mr. Butler:-A feoffment, fine, and recovery, are conveyances at the common law, so far as they convey the land to the feoffee, conusee, or recoveror; if they are directed to operate to, or to the use of the feoffee, conusee, A feoffment and bargain and sale cannot be made by the same person, of the same lands, at or recoveror, they have no other operation than as conveyances at the common law: but if they are directed to operate to the use of any other person, then, though they are conveyances at common law so far as they convey the land to the feoffee, conusee, or recoveror, they derive their effect under the statute of uses, so far as the use is limited by them to the person or persons in whose favour it is declared. A lease and release has a mixed operation; the lease has the operation of a bargain and sale, and is in effect a bargain and sale, under the statute; but the fee passes to the lessee, and enlarges his estate to an estate of inheritance by the operation of the release at the common law; and, if the release is directed to operate to, or to the use of the releasee, he is said to be in by the common law; but if the use be declared in favour of another person, the statute then again intervenes, and executes the use in the person or persons in whose favour it is declared. A bargain and sale enrolled, and a covenant to stand seised, wholly derive their effect from the statute of uses; the first is considered a real contract, by which the bargainor, for a pecuniary consideration, sells and contracts to convey the lands to the bargainee: the second is a real covenant, by which a person covenants to stand seised to the use of his or her husband, wife, child, or near relation.-Neither of those conveyances has any effect at the common law, or independently of the statute of uses, in conveying the land from the party selling or covenanting to stand seised, to those in whose favour they are intended to operate; so that at common law they have no legal operation, and are merely declarations of trust, binding the land in equity. But the statute attaches on them, and devests the land from the party selling or covenanting to stand seised, and vests it in the person to whom it is limited. Fearne, 416. 7th edit. Butl [In illustration of the preceding note, see the two tables supra, pp. 256., 257.] U |