2 Bl. Comm. 300. Gilb. Ten. n. LIV. the same time; for the feoffment conveys the seisin or possession to the feoffee, while it is absolutely essential to the efficacy of a bargain and sale that it remain in the bargainor. Now the possession cannot be in, and not in, the feoffor at the same time. If the feoffment take effect, the possession must be out of him by the very act of livery; and if the possession be out of him, he cannot be seised to the use of the bargainee. A bargain and sale is a contract to convey, and not an absolute conveyance as a feoffment. A person cannot contract to sell what he has actually parted with. If he convey the possession to another he can have none in himself to supply the use. A clause of warranty [which is now abolished 133. and Wath. by statutes 3 & 4 Will. 4. c. 74. s. 14., 4 & 5 Ib. c. 92. s. 11., and 3 & 4 Ib. c. 27. s. 39. was before those statutes usually] added to a feoffment; but it was preferable to insert a covenant by the feoffor," for himself, his heirs, executors, and administrators," as the warranty only bound the heirs. Yet it was deemed sometimes prudent to insert a clause of warranty in addition to the covenant, as it might possibly bind a reversioner Ante, b. 1. c.8. or remainderman when no assets descended, and be even a bar to a latent entail. CHAP. II. OF A GRANT.* Touchst. 228. Butl. n. (1.) to A GRANT is appropriated to the conveyance 2 Bl.Com. 317. of things not in possession, as reversions and remainders, and other incorporeal hereditaments, as rents, advowsons, &c. of which no livery can, of course, be given. † Hence the law divided [* A grant is another of those conveyances which are said to operate by transmutation of possession or seisin; of course it does not pass the actual possession, a reversion or remainder and other incorporeal hereditaments being the subject of its operation; but as remainders, reversions, and other incorporeal hereditaments, may be conveyed to uses, the grant (strictly operating as such) passes a (statutory) seisin to the grantee, to serve or supply the uses to the cestui que use. Where no uses are limited upon the seisin of the grantee, he takes at common law, and the statute is not brought into operation. Vide infra, ch. Lease and Release, notes (a) and (d).] + But the common practice is, to take all conveyances of freehold property by lease and release. If, however, the existence of a reversion can be clearly proved, the expense of the lease for a year may be saved. It is curious to observe a doctrine so well settled giving way to an inconsistent practice. 2 Sand. Uses, 25. Gilb. Ten, 81. estates into those which lay in livery and those in grant. As livery of seisin was a matter of notoriety, it was essential to the transfer of whatever that livery could be made. It was, indeed, of itself, sufficient to effectuate such transfer; and no farther evidence of the conveyance was required than the evidence of such livery. But, as livery could not be made of incorporeal hereditaments, interests, or rights, the law, even before the statute of frauds, required the transfer of them to be in writing under seal. In many cases, also, it ordained that attornment should be made; as in the conveyance of a reversion or a seigniory; and that for the following reasons— 1st, That the tenant in possession might not be subjected to a stranger, or a new lord, without his own approbation and consent. 2ndly, That he might know to whom he was to render his services and distinguish the lawful distress from the tortious taking of his cattle. 3rdly, That by such attornment the grantee of the reversion or seigniory might be put into the possession of it, and that others might be apprized and informed of the transfer. The reasons, however, for attornment having in a great measure ceased, from the change of manners, and the decline of feudal principles, attornment is now rendered unnecessary to the completion of a grant.* *The reason, however, for attornment, so far as it proceeded on notice to the tenant, is still applicable to the case of a mortgage, where the mortgage is made subsequently to the lease; for a mortgagee will not be entitled to the rent under a lease made prior to the mortgage, until he shall have given notice to the tenant of the mortgage, and required payment of the rent to himself. Otherwise than this, actual attornment is seldom heard of in practice, except to a receiver, or in the case of a recovery in ejectment, where the tenants frequently attorn to the lessor of a plaintiff, in order to save the expenses of sheriffs' poundage and officers' fees on executing a writ of possession. 2 Bing. 59. A feoffment by a tenant in tail, who was actually seised in possession by force of the entail, [before the statute 3 & 4 Will. 4. c. 74. s. 14., and 4 & 5 lb. c. 92. s. 11.], created a discontinuance of the estate tail, by transferring to the feoffee not only the possession, but also the right of possession, so as to take away the entry of the issue in tail, as also of the persons in remainder and reversion, and to drive them to their real action. But a grant could not in any case create a discontinuance, for every discontinuance worked a wrong; whereas a grant only transfers what the grantor may lawfully give. Thus Lord Coke says, if tenant in tail of a rent service, or of a remainder or reversion in tail, grants the same in fee, and dies; this is no discontinuance to the issue in tail. 1 Inst. 332 a. It follows from this principle that a grant can in no instance create a forfeiture, for it is an innocent assurance, and conveys no more than the grantor may lawfully pass. "If a tenant for life, or years, of an advowson, The operative word in this species of conveyance is "grant."* rent, common, or of a remainder or reversion of land, grants the same in fee, this is no forfeiture, because nothing passes but that which lawfully may pass." 1 Inst. 251 b. [But by the above mentioned statutes, and the 3 & 4 Will. 4. c. 27. s. 39., discontinuances are abolished.] *For the construction of a grant see the last note in the chapter on Covenants to stand seised. |