his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised.(k) It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; so as to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem.(1)(72)

Yet the corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was in many cases anciently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was permitted [*313 as equivalent to occupancy of the land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth:(m) "now this was the manner in former time of Israel, concerning redeeming and concerning changing, for to confirm all things: a man plucked off his shoe and gave it to his neighbor; and this was a testimony in Israel." Among the ancient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses. (n) (73) With our Saxon ancestors the delivery of a turf was a necessary solemnity to establish the conveyance of lands. (o) And to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of tenants.

Conveyances in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolical, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. *Written deeds were therefore introduced, in order to specify and [*314 perpetuate the peculiar purposes of the party who conveyed; yet still,

for a very long series of years, they were never made use of, but in company with the more ancient and notorious method of transfer by delivery of corporal possession. (74)

Livery of seisin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life only. (75) In hereditaments incorporeal it is impossible to be made; for they are not the object of the senses; and in leases for years, or

(k) See pages 209, 227, 228.

(1) Flet. 7. 6. c. 2, 22.

(m) Ch. iv., 7.

(n) Stiernhook, de jure Sueon. l. 2, c. 4.
(o) Hickes, Dissert." Epistolar. 85.

(72) [Not right, but seisin, makes the stock.]

(73) Tiedeman, R. P. 722.

(74) Wood v. Fleet, 36 Tiffany (N. Y.) 507 (1867). Lake v. Campbell, 18 Ill. 109 '1856).

other chattel interests, it is not necessary. In leases for years indeed an actual entry is necessary to vest the estate in the lessee: for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini: and when he enters in pursuance of that right, he is then, and not before, in possession of his term, and complete tenant for years. (p) This entry by the tenant himself serves the purpose of notoriety, as well as livery of seisin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, (76) because they cannot (at the common law) be made but by livery of seisin; which livery, being an actual manual tradition of the land, must take effect in præsenti,(77) or not at all. (9)

On the creation of a freehold remainder, at one and the same time with a particular estate for years, we have before seen, that at the common law livery must be made to the particular tenant. (r) But if such a remainder be created afterwards, expectant on a lease for years, now in being, the livery must not be made to the lessee for years, for then it operates nothing; "nam quod semel meum est, amplius meum esse non *315] potest;"(s)(78) but it must be made to the remainderman *himself,

by consent of the lessee for years; for without his consent no livery of the possession can be given;(1) partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given(u) for introducing the doctrine of attornments.

Livery of seisin is either in deed or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney, (for this may as effectually be done by deputy or attorney as by the principals themselves in person,)(79) come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee, all other persons being out of the ground, a clod or turf, or a twig, or bough there growing, with words to this effect: "I deliver these to you in the name of seisin of all the lands and tenements contained in this deed." But if it be of a house, the feoffor must take the ring or latch of the door, the house being quite empty, and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others. (w) If the conveyance or feoffment be of divers lands, lying scattered in one and the same county, then in the feoffor's possession, livery of seisin of any parcel in the name of the rest, sufficeth for all; (~) but if they be in several counties, there must be as many liveries as there are counties. For if the title to these

(76) [In the future.]

(77) [In the present.] This is still so in conveyances at common law; but it is otherwise inconveyances to uses under the statute. I Saund. on Uses and T. 3 ed. 128, 129. 4 Taunt. 20. Willes, 682. 2 Wils. 75.-CHITTY. Speed v. Buford, 3 Bibb (Ky.) 60 (1813). Gittings v. Hall, I Md. 24 (1800). Livery of seisin is abolished in England. See statute 8 and 9 Vict. c. 106. It never was adopted in the United States. See Kent Com. 84. Wash. Real Prop. 33.

(78) [For what is once mine can not be mine more fully."]

(79) But the authority given to an attorney, etc. for this purpose should be by deed; and the authority so given, whether by the feoffor or feoffee, must be completely executed or performed in the lifetime of both the principals; for if either of them die before the livery of seisin is completed, his attorney cannot proceed, because his authority is then at an end. See 2 Roll. Abr. 8 R. pl. 4, 5. Co. Litt. 52, b.-CHITTY. Goodeve's Mod. Law of Real Prop. (3 ed.) 353-4.

lands comes to be disputed, there must be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. (80) Besides, anciently this seisin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighborhood, who attested such delivery in the body or on the back of the deed; according to the rule of the feodal law, (y) pares debent interesse investituræ feudi et non alii: (81) for which this reason is expressly given: because *the peers or vassals of the lord, being bound by their oath of fealty, [*316 will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though afterwards the ocular attestation of the pares was held unnecessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed, (like that of all other attestations,)(z) was still reserved to the pares or jury of the county. (a) Also, if the lands be out on lease, though all lie in the same county, there must be as many liveries as there are tenants: because no livery can be made in this case but by the consent of the particular tenant; and the consent of one will not bind the rest. (b) And in all these cases it is prudent, and usual, to endorse the livery of seisin on the back of the deed, specifying the manner, place, and time of making it: together with the names of the witnesses. (c) (82) And thus much for livery in deed.

Livery in law is where the same is not made on the land, but in sight of it only; the feoffor saying to the feoffee, "I give you yonder land, enter and take possession." Here, if the feoffee enters during the life of the feoffer, it is a good livery, but not otherwise; unless he dares not enter, through fear of his life or bodily harm; and then his continual claim, made yearly, in due form of law, as near as poss.ole to the lands, (d) will suffice without an entry.(e) This livery in law cannot however be given or received by attorney, but only by the parties themselves. (ƒ) (83)

2. The conveyance by gift, donatio, is properly applied to the creation of an estate-tail, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of an estate passing by it: for the operative words of conveyance in this case are do or dedi; (g) and gifts in tail are equally imperfect without livery of seisin, as feoffments in fee-simple. (h) (84) *And [*317

(y) Feud. 1. 2. t. 58.

(z) See page 307.

(a) Gilb. 10, 35.

(b) Dyer, 18.

(c) See Appendix, No I.

(d) Litt. 421, &c.
(e) Co. Litt. 42.

(ƒ) Ibid. 52.

(g) West. Symbol. 256.
(h) Litt. 2 59.

(80) Thomas v. Blackemore, 5 Yerger (Tenn.) 125 (1833). The Law of Sales, Newmark. sec. 240. Williams on Real Property (6 ed.) 142. 2 Pingrey on Real Prop. 1292. (81) [The peers, and no others, should be present at the investiture of the fee.]

(82) Thomas v. Blackemore, 5 Yerger (Tenn.) 125 (1833). 3 Wash. on Real Prop. (5 ed.) 375.

(83) A feoffment has of late been generally resorted to in practice rather for its peculiar powers and effects than as a simple mode of assurance from one person to another. Thus, a feoffment by a particular tenant, until recently, destroyed the contingent remainders depending on the particular estate, and, if made by a tenant in tail in possession, discontinued the estate-tail; and at one time it seemed quite settled that a feoffment might be employed to convey a fee to the feoffee by disseisin, whatever might have been the estate of the feoffor, provided he had possession of the lands enfeoffed. See the authorities referred to in Butl. Co. Litt. 330, b., n. (1.) 2 Saund. Us. and Tr. 15. 2 Prest. Abst. 293. But this doctrine has for some time been greatly shaken; and it has been considered that a feoffment had no longer this effect, (Doe d. Maddock v. Lynes, 3 B. & C. 388. Doe d. Dormer v. Moody, 2 Prest. Conv. Pref. 32. Doe v. Hall, 2 Dowl. & Ry. 38. I Saund. Us. 40. Jerritt v. Weare, 3 Pri. 575; and see Reynolds v. Jones, 2 Sim. & Stu. 106); and by stat. 8 and 9 Vict. c. 106, 4, a feoffment made after the 1st of October, 1845, shall not have any tortious operation, and is now to be ranked among what are called innocent conveyances.-STEWART.

(84) Tiedeman on Real Prop. 720 (2 ed. 1892). Benson v. The Mayor etc. of N. Y., 10

this is the only distinction that Littleton seems to take, when he says, (i) “it is to be understood that there is feoffor and feoffee, donor and donee, lessor and lessee;" viz., feoffor is applied to a feoffment in fee-simple, donor to a gift in tail, and lessor to a lease for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next species of deeds: which are,

3. Grants, concessiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or such things whereof no livery can be had. (k) For which reason all corporeal hereditaiments, as lands and houses, are said to lie in livery; and the others, as advowsons, commons, rents, reversions, etc., to lie in grant. (1) And the reason is given by Bracton:(m) “traditio, or livery, nihil aliud est quam rei corporalis de persona in personam, de manu in manum, translatio aut in possessionem inductio: sed res incorporales, quæ sunt ipsum jus rei vel corpori inhærens, traditionem non patiuntur." (85) These therefore pass merely by the delivery of the deed. And in signiories, or reversions of lands, such grant, together with the attornment of the tenant, (while attornments were requisite,) were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in its subject-matter: for the operative words therein commonly used are dedi et concessi, "have given and granted." (86) 4. A lease is properly a conveyance of any lands or tenements, (usually in consideration of rent or other annual recompense,) made for life, for years, or at will, but always for a less time than the lessor hath in the premises; for if it be for the whole interest, it is more properly an assignment than a lease. (87) The usual words of operation in it are, "demise, grant, *318] and to farm let; demisi, concessi, et ad firmam *tradidi. Farm, or feorme, is an old Saxon word signifying provision:(n) and it came

(i) 57.

(k) Co. Litt. 9.

(1) Ibid. 172.

(m) L. 2. c. 18.
(n) Spelm. Gloss. 229.

Barbour (N. Y.) 235 (1850). Becher v. Woods, 16 Upper Canada C. P. 29, 33 (1865). I Sheppard's Touchstone, Preston, 228.

(85) ["Livery is merely the transferring from one person to another, from one hand to another, or the induction into possession of a corporeal hereditament: but an incorporeal hereditament, which is the right itself to a thing, or inherent in the person, does not admit of delivery."]

"It is true that 'grant' is used by the most accurate modern writers, as comprehending a conveyance of corporeal hereditaments." Dudley v. Sumner, 5 Mass. 472 (1809). Though the word 'grant' was originally made use of in treating of conveyances of interests in lands to denote a transfer by deed of that which could not be passed by livery, and of course was applied to incorporeal hereditaments, it has now become a generic term applicable to transfers of all classes of property." 3 Wash. on Real Prop. (5 ed.) 193. Dartmouth College v. Wood word, 4 Wheaton, 684 (1819). Dudley v. Sumner, 5 Mass. 471 (1809). Sellers v. Union Lumbering Co. 39 Wis. 527 (1876). Smith on Contracts, 33 (1878). Myers on Vested Rights, 520 (1891).

(86) Which words, it is to be observed, in any deed executed after the 1st of October, 1845, shall, by the late act (8 & 9 Vict. c. 106, s. 4) not imply any covenant in law in respect of any hereditaments, except so far as the words "give" or "grant" may by force of any act of parliament imply a covenant. But by the same act an important alteration of the law has now been made. Great inconveniences arose in the conveyance of corporeal hereditaments from the necessity of livery of seisin to perfect a feoffinent, and various contrivances were used to evade its necessity. These are no longer needful; for by the statute 8 & 9 Vict. c. 106, s. 2, all corporeal hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. By this useful provision the conveyance of corporeal hereditaments is much simplified. STEWART. Seaton v. Lunney, 27 Chanc. Rep. Ont. 175, Grant (1879).

(87) Krider v. Lafferty, 1 Wharton (Pa.), 315 (1835). Bridge Proprietors v. The State, 1 N. J. 389 (1848). Lenow v. Fones, 48 Ark. 566 (1886). Spielman v. Kliest 36 N. J. Eq. 203. Tiedeman Real Prop. 724 (2 ed. 1892). Biun's Justice, Brightly, 76 (10 ed. 1895).