other, it will, if made in the name of both, be good to pass FEOFFMENT. the estate to both; because the parties being united in a deed, they all take as one; therefore livery to one, in the name of the rest, is an actual delivery to them all; besides, in the case of such feoffment by deed, A. may be looked upon as the attorney of B. to receive livery; and therefore the estate will immediately vest in B, because every man is presumed to assent to a grant for his advantage *. IV. OF THE EFFECT AND OPERATION OF A THE nature of a feoffment, by reason of the delivery to the feoffee, either actually or symbolically, of the lands enfeoffed, is to pass the immediate possession, whether the feoffor have any estate in the land or not. If, therefore, a tenant for life or years only of lands, enfeoff them to another in fee, it will primâ facie be good, and put the owner of the inheritance to prove his title'. Hence, as is observed in the Touchstone of Common Assurances, (p. 204,) this not only is the most ancient kind of conveyance, but is also the best and most excellent of all others, and in some respects doth excel the conveyance by fine or recovery for it is of that nature and efficacy, by reason also of the livery of seisin inseparably incident to it, that it cleareth all disseisins, abatements, intrusions, and other wrongful and defeasible titles, and reduceth the estate clearly to the feoffee, when the entry of the feoffor is lawful, which neither fine, recovery, nor bargain and sale, by deed indented and inrolled, will do, when the feoffor is out of possession". And it not only passes the present estate of the feoffor, but bars and excludes him of all * Co. Lit. 49, 359; Vent. 202, 205; 5 Co. 95; 2 Rol. Abr. 9; 2 Leon. 23, 2 m Co. Lit. 49, 237; 1 Co, Mutton's case. 244. of the effect and operation of a feoffment. FEOFFMENT. future right, and possibility of right, to the thing enfeoffed; and if he have any rent, common, or the like, in or out of the land, it is extinguished and gone by the feoffment. It also bars the feoffor of all collateral benefits touching the land, as conditions of re-entry, &c. powers of revocation, writs of error, and the like: if, therefore, a man convey his land upon condition, or with power to revoke it, and afterwards make a feoffment of the land, he is for ever barred of taking advantage of the condition, or power of revocation: so also does it bar and destroy all contingent remainders depending upon particular estates, in like manner as a fine or recovery": for the feoffment and livery are much favoured in law, and shall be construed most strongly against the feoffor, and in advantage of the feoffee: because it is so solemnly and publicly made, it is of all other conveyances most observed in its execution, and therefore best remembered and proved. Where a feoff ment operates seisin. Though a feoffment has invariably been admitted to as an actual dis operate as a disseisin, yet it has been a subject of much discussion, what possession is required in the feoffor to make his feoffment an actual disseisin of the freehold, and not merely a disseisin at the election of the party; Mr. Butler has presented the student with a full investigation of the abstruse, but by no means useless, learning upon this subject. And he observes, that it seems to be admitted by the court, in the case of Taylor v. Horde, that originally no greater estate was required to be in the feoffor than mere possession. This they attribute to the solemnities originally attending both the admission of tenants into the tenure, and the transfer of the fee. But it seems to be their opinion, that since most, if not all, of these solemnities, have been dispensed with, the peculiar efficacy of a feoff- FEOFFMENT. ment has been lost. This has certainly been the case in one very remarkable instance. Lord Chief Baron Gilbert, in his Treatise of Tenures', observes, "that the feoffee of the disseisor that came in by title, after a year and a day was expired, was anciently held to have right of possession, and to put the disseisee to his writ of entry, because the feoffee came in by title. Hence, writs of entry against the feoffee in the per and cui: but this was not held so in respect of disseisors, because they themselves, being the wrong-doers, had no law in their favour, lest it should encourage such injuries. But afterwards, as feoffments became more secret, and nothing paid to the lord, then they thought it too hard such feoffments should alter the right of possession; and therefore they construed the feoffee that came in by his own act to be a wrongdoer, and not to alter the right of possession." But it will be difficult to find another instance in which feoffments have lost their efficacy. The arguments brought to prove that they have lost their efficacy in creating an estate of freehold, when it is not in the feoffor at the time of the feoffment, are, 1st, that livery is not made now with the solemnity with which it was made formerly; 2dly, that the passages in the books, which speak of feoffments by tenants for years, and others having estates less than freehold, creating estates of freehold in the feoffee, by disseisin, are to be understood as referring only to a disseisin by election; but both these objections have been very ably and satisfactorily confuted by Mr. Butler in his annotations upon the 1st Institute of Lord Coke'. For with respect to the first, he adduces the most decisive evidence, "that from the reign of Henry II, to the present time, the courts of judicature and the writings of the professors of the law, are perfectly agreed in considering feoffments as made with the same ceremonies, and attended with the same efficacy and operation:" whence he concludes, FEOFFMENT. that it can be no argument against their having the efficacy and operation contended for in the particular instance in question; that at a period anterior to that mentioned here, they were made (if that really was the case) with more notoriety and ceremony than they are now. And as to the second objection, that the passages in the books which speak of tenants for years and others having estates less than of freehold creating estates of freehold in the feoffee by disseisin, are to be understood as referring only to a disseisin by election; he observes, that by a disseisin at the election of the party, is not to be understood an act which in itself is a disseisin, but which the party supposed to be disseised, may, if he pleases, consider as not amounting to a disseisin : on the contrary, every act which is susceptible of being made a disseisin by election, is no disseisin till the party in question, by his election, makes it such. It follows, therefore, that every act which is said by the writers to produce an immediate disseisin, necessarily implies an actual disseisin. Now we find, that the disseisins produced by feoffments instantly gave the feoffee, against every person but the disseisee, an immediate estate of freehold, with all the rights and incidents annexed to it. The wife of the feoffee became immediately entitled to her dower; the husband of the feoffee to his curtesy; and the descent upon the heir of the feoffee immediately took away the entry of the disseisee. This is the constant language of the books, when they speak generally of disseisins. Now the books make no difference, whether the feoffment is made by a person seised of an estate of freehold, or by a person having only the bare possession, as tenant for years, at will, or by suf ferance. Bracton says, that immediately upon the feoffment the estate becomes the property of the feoffee, as between him and the feoffor, and every other person, except the rightful owner; that a long and uninterrupted possession of a certain duration, will make the title of the feoffee good even against the rightful owner; that, to pre vent this, the donor must restore his own seisin. But if FEOFFMENT. the feoffee in this case were only a disseisor at the election of the disseisee, it would follow, that he was not a disseisor till the right owner made him such by his election; and therefore, that the fee would not be in him, if the rightful owner did not elect to make him a disseisor. According to this doctrine, if the feoffee of tenant for years, or any other person making a feoffment without an estate of freehold in him, died in the life of the rightful owner of the estate, the estate would not be subject to dower or curtesy, nor would the entry of the rightful owner be taken away. But we find, that in all cases in which our law-writers treat of disseisins made by feoffments, they consider it as a matter of course, that the estate of the feoffee, immediately became an estate of freehold, with all the qualities and rights of a freehold estate annexed to it. In every stage of our law, the most modern as well as the most ancient, the peculiar operation of a feoffment, as to the divesting of estates, destruction of contingent remainders, and extinction of powers, has been recognized. Citations and arguments, to prove the point before us, might be easily multiplied; but they shall be concluded here, by some observations upon the allowed effect of a fine levied by a tenant for years, or even by a tenant at sufferance, who has previously made a feoffment. No point of our law is more clearly settled, than that unless some one of the parties to a fine has an estate of freehold in the lands of which it is levied, it is totally void as to all strangers, and may be avoided at any time by the plea, quod partes finis nihil habuerunt. Now, supposing a tenant for years to make a feoffment, and the feoffee afterwards to levy a fine, it is clear, that the fine would be without effect, unless the feoffiment gave him an estate of freehold. But in the case of Whalley v. Tancred', it was t 1 Vent. 241; Sir Thomas Raymond, 219, 1 Leon. p. 2, 52. |