4 KENT. COM., 497. Of Fines and Recoveries.—Alienation by matter of record, as by fines and common recoveries, makes a distinguished figure in the English code of the common assurances of the kingdom. But they have not been in much use in any part of this country, and probably were never adopted, or known in practice in most of the States. The conveyance by common recovery was in use in Pennsylvania, Delaware and Maryland, before the American. revolution; but it must have become obsolete with the disuse of estates tail. Fines have been occasionally levied in New York for the sake of barring claims; but by the New York Revised Statutes1 fines and common recoveries are now abolished. . . . The conveyance by fine, as a matter of record, transacted in one of the highest courts of common law, has some great advantages, and merits a more serious consideration. Its force and effect are very great; and great solemnity is required in passing it, because, said the statute of 18 Edw. I., "the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those who are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied, unless they put in their claim within a year and a day." This bar by non-claim was, afterwards, by the statute of 4 Hen. VII., extended to five years. These statutes, and this bar of non-claim after five years, were reenacted in New York, and continued in force until January, 1830; and common recoveries were equally recognized by statute as a valid mode of conveyance down to this lastmentioned period. Such a formal, solemn, and public mode of conveyance, with such a short bar by non-claim, was resorted to in special cases, where title had become complex, and the property was of great value, and costly improvements were in immediate contemplation.

1 Vol. II., 343, sec. 24.

CHAPTER IV.

GRANT AND ATTORNMENT.

Co. LIT., 172, a. "Grant," concessio, is in the common law a conveyance of a thing that lies in grant and not in livery, which cannot passe without deed; as advowsons, services, rents, commons, reversions, and such like.

171, b. "Fait," Factum, Anglice a deed, and signifieth in the common law, an instrument consisting of three things, viz., writing, sealing, and delivery, comprehending a bargaine or contract between party and party, man or woman. It is called of the civilians literarum obligatio.

49, a. So to conclude this point; of freehold and inheritances some be corporeall, as houses, &c., lands, &c.; these are to passe by liverie of seisin, by deed or without deed; some be incorporeall, as advowsons, rents, commons, estovers, &c.; these cannot passe without deed, but without any liverie. And the law hath provided the deed in place or stead of a livery. And so it is if a man make a lease, and by deed grant the reversion in fee, here the freehold with attornement of the lessee by the deed doth passe, which is in lieu of the livery. See Bract., lib. 2, cap. 18.

LIT., 551. Attornement is, as if there bee lord and tenant, and the lord will grant by his deed the services of his tenant to another for terme of yeares, or for terme of life, or in taile, or in fee, the tenant must attorne to the grantee in the life of the grantor, by force and vertue of the grant, or otherwise the grant is void. And attornement is no other in effect, but when the tenant hath heard of the grant made by his lord, that the same tenant do agree by word to the said grant, as to say to the grantee, I agree to the grant made to you, &c., or I am well content with the grant made to

you; but the most common attornement is to say: Sir, I attorne to you by force of the said grant, or I become your tenant, &c., or to deliver to the grantee a pennie, or halfepennie, or a farthing, by way of attornement.

§ 567. Also, if a man letteth tenements for terme of yeares, by force of which lease the lessee is seised, and after the lessor by his deed grant the reversion to another for terme of life, or in taile, or in fee, it behoveth in such case that the tenant for yeares attorne, or otherwise nothing shall passe to such grantee by such deed. And if in this case the tenaunt for yeares attorne to the grantee, then the freehold shall presently passe to the grantee by such attornement without any liverie of seisin, &c., because if any liverie of seisin, &c., should be or were needfull to bee made, then the tenant for yeares should be at the time of the livery of seisin ousted of his possession, which should bee against reason, &c.

§ 568. Also, if tenements be letten to a man for terme of life, or given in taile, saving the reversion, &c., if hee in the reversion in such case grant the reversion to another by his deed, it behooveth that the tenant of the land attorne to the grantee in the life of the grantor, or otherwise the grant is voyd.

$569. In the same manner is it, if land be granted in taile, or let to a man for terme of life, the remainder to another in fee, if he in the remainder will graunt this remainder to another, &c., if the tenant of the land attorne in the life of the grantor, then the grant of such a remainder is good, or otherwise not.

$570. P. 12. Edw. 4. It is there holden by the whole court, that tenant in taile shall not be compelled to attorne, but if he will attorne gratis, it is good enough.

Co. LIT., 316, b. This is added to Littleton, and therefore, though it be good law, and the booke truly cited, yet I passe it over.

ID., 309, a.

"Attornment" is an agreement of the ten

ant to the grant of the seigniorie, or of a rent, or of the donee in tayle, or tenant for life or yeeres, to a grant of a reversion or remainder made to another. It is an ancient word of art, and in the common law signifieth a torning or attorning from one to another. Wee use also attornamentum as a Latine word, and attornare to attorne. And so Bracton useth it.

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And the reason why an attornment is requisite, is yeelded in old bookes to be, Si dominus attornare possit servitium tenentis contra voluntatem tenentis, tale sequeretur inconveniens, quod possit eum subjugare capitali inimico suo, et per quod teneretur sacramentum fidelitatis facere ei qui eum damnificare intenderet.

309, a, b. "Il covient que le tenant attorna al grantee en la vie del grantor, &c." And so must he also in the life of the grantee; and this is understood of a grant by deed. And the reason hereof is, for that every grant must take effect as to the substance thereof in the life both of the grantor and the grantee. And in this case, if the grantor dieth before attornement, the seigniorie, rent, reversion or remainder descend to his heire; and therefore after his decease the attornement commeth too late: so likewise if the grantee dieth before attornement, an attornement to the heire is void, for nothing descended to him; and if he should take, he should take it as a purchasor, where the heires were added but as words of limitation of the estate, and not to take as purchasors.

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A grant to the king, or by the king to another, is good without attornement, by his prerogative.

ID., 271, b.

A grant, in the original signification of the word, is a conveyance or transfer of an incorporeal hereditament. As livery of seisin could not be had of incorporeal hereditaments, the transfer of them was always made by writing, in order to produce that notoriety in the transfer of them which was produced in the transfer of corporeal hereditaments, by delivery of the possession. But, except

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that a feoffment was used for the transfer of corporeal hereditaments, and a grant was used for the transfer of incorporeal hereditaments, a feoffment and a grant did not materially differ. Such was the original distinction between a feoffment and a grant. But, from this real difference in their subject matter, a difference was supposed to exist in their operation. A feoffment visibly operated on the possession; a grant could only operate on the right of the party conveying. Now, as possession and freehold were synonymous terms, no person being considered to have the possession of the lands but he who had himself, or held for another, at least an estate of freehold in them, a conveyance which was considered as transferring the possession must necessarily be considered as transferring an estate of freehold; or, to speak more accurately, as transferring the whole fee. But this reasoning could not apply to grants; their essential quality being that of transferring things which did not lie in possession; they therefore could only transfer the right; that is, could only transfer that estate which the party had a right to convey. It is in this sense we are to understand the expressions which frequently occur in our lawbooks, where they describe a feoffment to be a tortious, and a grant to be a rightful conveyance. Thus, from a difference in the quality of the hereditaments conveyed by those two modes of conveyance, a difference has been considered to exist in their operation. Butler's note,

231, I. (1).

Co. LIT., 309, a. Sir Martin Wright and many other writers have laid it down as a general rule that by the old feudal law the feudatory could not alien the feud without the consent of the lord; nor the lord alien or transfer his seigniory without the consent of his feudatory; for the obligations of the lord and his feudatory being reciprocal, the feudatory was as much interested in the conduct and ability of the lord, as the lord in the conduct and ability of his feudatory; and that as the lord could not alien, so neither could he exchange, mortgage, or otherwise dispose of his seig