subsist only for his life; unless the feoffor, by express provision in the creation and constitution of the estate, hath given it a longer continuance. These express provisions are indeed generally made; for this was for ages the only conveyance whereby our ancestors were wont to create an estate in fee-simple, by giving the land to the feoffee, to hold to him and his heirs forever; though it serves equally well to convey any other estate or freehold.

But by the mere words of the deed the feoffment is by no means perfected: there remains a very material ceremony to be performed, called livery of seisin; without which the feoffee has but a mere estate at will. This livery of seisin is no other than the pure feodal investiture, or delivery of corporeal possession of the land or tenement; which was held absolutely necessary to complete the donation. “Nam feudum sine investitura nullo modo constitui potuit" and an estate was then only perfect, when, as the author of Fleta expresses it in our law, "fit juris et seisinæ conjunctio."

ID., 316. 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. But this doctrine has for some time been greatly shaken; and it has been considered that a feoffment had no longer this effect. . . . 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's note.

1L. 3, c. 14, § 5.

DIGBY, HIST. REAL PROP., Ch. III., § 12 (2). In order to acquire possessio two elements are necessary: 1. The consciousness of actual or possible physical control of the thing which is the subject of acquisition. 2. The animus sibi habendi. The requisites for the acquisition of possessio were to this extent common with the requisites for acquiring property by traditio, or delivery; and the application of these rules gave rise to the feudal notion of investiture-the clothing the donee with the actual possession of the land the subject of the grant.

Since, as has been seen, freehold interests were formerly the only interests in land known to the law, a grant of land is synonymous with a grant of a freehold interest in land, and the doctrines of Roman law as to conveying things movable by traditio, and things immovable by allowing the donee to enter on the vacant possession, gave rise to the principle that for passing a freehold interest in lands a ceremony was necessary by which the possession of the land itself should be given to the donee. This was livery, or delivery, of the seisin or possession of the land, and was effected either by the donor himself or his deputy. What did and what did not amount to "livery of seisin" now becomes a curious question. Speaking generally, it must be the delivery of something, such as a clod of earth or a twig, on the land in the name of the whole, or it was sufficient if the two parties were actually present on the land and the one by word or act gave possession to the other. It was even effectual for the donor to bring the donee within sight of the land and to give him authority to enter, provided this were followed by the entry of the donee during the lifetime of the donor. Great importance was attached to the notoriety of the transaction. That all the neighbors might know that A. was tenant to B. from the fact that open livery of seisin had been made to him, was of the utmost importance to B. in order to protect and to enable him to assert his rights as lord. For in case of dispute as to the title to the lands, or the right to services, aids or reliefs, the fact of this open

and notorious livery of seisin enabled the lord to appeal to the tribunal before which, since the reforms of Henry II., suits relating to land were commonly decided the verdict of twelve legales homines de vicineto, who would know themselves or have heard from their fathers the truth of the matter.

4 KENT COM., 480. Nothing can be more concise, and more perfect in its parts, than the ancient charter of feoffment. It resembles the short and plain forms now commonly used in the New England States.

The feoffment operated upon the possession without any regard to the estate or interest of the feoffor; and though he had no more than a naked, or even tortious possession, yet, if the feoffor had possession, the feoffment had the transcendant efficacy of passing a fee by reason of the livery, and of working an actual disseisin of the freehold. It cleared away all defeasible titles, devested estates, destroyed contingent remainders, extinguished powers, and barred the feoffor from all future right, and possibility of right, to the land, and vested an estate of freehold in the feoffee. In this respect the feoffment differed essentially from a fine, or common recovery; for the conusor in the fine, and the tenant to the præcipe, must be seised of the freehold, or of an estate in fee, or for life, otherwise the fine or recovery may be avoided.

STAT. 8 & 9 VICT., c. 106, § 4. A feoffment made after the first day of October, 1845, shall not have any tortious operation.

N. Y. REAL PROP. LAW, § 206. The conveyance of real property, by feoffment, with livery of seisin, has been abolished.

§ 210. . . . A greater estate or interest does not pass by any grant or conveyance than the grantor possessed or could lawfully convey at the time of the delivery of the deed. . .

CHAPTER III.

FINE AND RECOVERY.

By

2 BL. COм., 348-357. A fine is sometimes said to be a feoffment of record; though it might with more accuracy be called an acknowledgment of a feoffment on record. which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands though it is one of those methods of transferring estates of freehold by the common law, in which livery of seisin is not necessary to be actually given; the supposition and acknowledgment thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices: whereby the lands in question become, or are acknowledged to be, the right of one of the parties. In its original it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual that fictitious actions were, and continue to be, every day commenced, for the sake of obtaining the same security.

A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. . . Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil1 and Bracton2 in the reigns of Hen. II. and Hen. III. as things then well known and long established; and instances have been produced of them even prior to the Norman invasion. So that the statute 18 Edw. L. 5, t. 5, c. 28. 3 Plowd. 369.

'L. 8, c. I.

I., called modus levandi fines, did not give them original, but only declared and regulated the manner in which they should be levied or carried on. And that is as follows:

1. The party to whom the land is to be conveyed or assured, commences an action or suit at law against the other, generally an action of covenant, by suing out a writ of praecipe, called a writ of covenant: the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. The suit being thus commenced,

then follows,

2. The licentia concordandi, or leave to agree the suit. For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangers if he now deserts it without license, he therefore applies to the court for leave to make the matter up. This leave is readily granted.

3. Next comes the concord, or agreement itself, after leave obtained from the court: which is usually an acknowledgment from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. This acknowledgment must be made either openly in the court of common pleas, or before the lord chief-justice of that court; or else before one of the judges of that court, or two or more commissioners in the country, empowered by a special authority called a writ of dedimus potestatem, which judges and commissioners are bound, by statute 18 Edw. I. st. 4, to take care that the cognizors be of full age, sound memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband.