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[BOOK III. PARTI. FEOFPMENT. settled, that where a fine is levied in this manner, the fine will bar the lessor at the end of five years after the expiration of the term; which could not be the case unless the feoffment had previously created an estate of freehold". Upon the whole, therefore, he submits to the reader's consideration, 1st, that, as feoffments have not been made from the reign of Henry II, to the present time, with any other solemnities than those with which they are made at present, every operation and efficacy which has been con-. stantly and uniformly allowed or ascribed to them by the courts of judicature, or writers of authority cotemporary with or subsequent to that monarch's reign, down to the present time, ought, notwithstanding the objection that they are not now made with some of the solemnities with which they are said to have been made in their very earliest institution, to be allowed and ascribed to them now: 2dly, that by the passage cited from Bracton, and the other authorities cited or referred to by him, it appears, that the disseisin produced by feoffments must be understood to be an actual disseisin, and not a disseisin merely at the election of the party: 3dly, that in many of these authorities it is most expressly mentioned, and in all of them it must be implied, that however slender, bare, or tortious the possession of the feoffor is, his feoffment necessarily and unavoidably vests the freehold in the feoffee, till the disseisee by entry or action restores his possession: 4thly, that copyholders, tenants for years, by elegit, statute-merchant, statute-staple, at will, or by sufferance, are all considered to have the possession of the estate, and that they may by feoffment vest an actual estate of freehold in the feoffee: 5thly, that a fine may be levied of, or a common recovery suffered upon, this estate of freehold 6thly, that the feoffment so executed, the fine so levied, and the recovery so suffered, are immediately good against every person except the rightful

Co. Lit. 330, b; and Doe v. Prosser, Cowp. 217.

owner: and 7thly, that in process of time they become FEOFFMENT. good against the owner himself.

This doctrine may be illustrated by applying it to a case which not unfrequently happens: suppose A. to be possessed of a mortgage term of one thousand years under a decree of foreclosure, and it cannot be ascertained, owing to the length of time since it was created, in whom the reversion in fee is subsisting (1), in this case A. by executing a feoffment and levying a fine of the land, may acquire the absolute fee-simple after five years nonclaim (2).

* See Co. Lit. ub. supra; and 2 Saund. Uses and Trusts, 17, (9).

(1) If the reversioner be known to whom rent is paid or service performed, the feoffment will be deemed fraudulent against the reversioner, by reason of the privity between him and the reversioner, and inoperative. See 3 Co. 77, a; and see Brandlyn v. Ord, 1 Atk. 571; and Whalley v. Tancred, 1 Vent. 241; T. Raym. 219; Shields v. Atkins, 3 Atk. 141, 339, 562; Pomfret v. Windham, 2 Ves. 481.

(2) In a case of this kind it is usual, and seems advisable previously to the feoffment, to assign the term to a trustee in trust to attend the inheritance, not however generally, but as acquired by the feoffment and fine. The uses of the feoffment and fine may then be declared either to the feoffor or a purchaser. See 2 Saund. Uses, 26; and Sugd. Vend. & Pur. 129, n. (8).

GIFT.

CHAP. IV.

OF A GIFT.

THIS word, in its most extensive signification, imports
generally the transferring of the property of a thing from
one to another, and is therefore of a larger extent than a
feoffment, which is always applied to corporeal and im-
moveable things only; but this is equally applicable to
moveable things, as cattle, household-stuff, &c. the pro-
perty of which may be altered as well by gift as by sale or
grant. And in this latter sense a gift is said to be some-
times by the act of the party; as when a man voluntarily
gives a thing to another: and sometimes by act of law; as
when a woman is married, or one is made executor to another;
in which cases all the goods of the woman are given by the
law to the husband, and those of the testator to his exe-
cutor. So if a man takes my goods as a trespasser, and I
recover damages for them upon a suit in law; in this case
the law gives him the property of the goods, because he
has paid for them. But a gift is sometimes, and more
properly, taken in a stricter sense, and applied to a con-
veyance or passing of an estate to another in tail, as feoff-
ment is to that of an estate in fee, and lease to that of an
estate for life or years. In this sense it differs in nothing
from a feoffment, but in the nature of the estate passing
by it: for the operative words of conveyance in this case
are do or dedi; and gifts in tail are equally imperfect with-
out livery of seisin, as feoffments in fee-simple (1). And

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(1) A gift is said by Coke, 1 Rep. 61, to be good by the common law without livery, though not by the civil law; but this it should seem can be understood only of property

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this is the only distinction that Littleton seems to take, when he says", "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.

It is distinguishable from grants and other modes of transfer in its being properly a voluntary conveyance; that is, a conveyance not founded on the consideration of money or blood, and being therefore, in general, without either a good or a valuable considération, it is seldom better than of dubious efficacy; as it will be void as against all persons who were creditors of the donor at the time of the gift; but against subsequent creditors it will be good.

This species of assurance will be further noticed under the next head.

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not susceptible of livery, for as no use can arise upon it for want of a consideration, (and where there is a consideration it is more properly a grant) livery is evidently necessary, as it is in respect of gifts of all corporeal things in possession of the donor when the gift is made,

GIFT.

GRANT.

CHAP. V.

OF A GRANT.

IN treating of a grant, we may consider,

I. ITS NATURe.

II. WHO MAY CONVEY BY GRANT.

III. WHAT MAY BE THE SUBJECT OF A GRANT.

IV. WHAT WORDS ARE NECESSARY TO CONSTITUTE A
GRANT AND,

V. THE OPERATION OF THIS ASSURANCE.

I. OF THE NATURE OF A GRANT.

A GRANT, in the original and regular signification of the word, is a conveyance or transfer of incorporeal hereditaments (1), of which no livery can be had, such as advowsons, rents, commons, reversions, &c. which are therefore said to lie in grant, and not in livery, being "rei corporalis de persona in personam, de manu in manum translation, aut possessionem inductio; sed res incorporales, qua sunt ipsum jus rei vel corpori inhærens, traditionem non patiuntur." These things therefore pass merely by delivery of the deed: and in seigniores, or reversions of lands, such grants (together with the attornment of the tenant whilst attornments were requisite) were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in the immediate possession of the grantor. And as livery of seisin could not be had of incorporeal hereditaments, the transfer of them was always made by

Co. Lit. 9, a. 172, a. 332,a; Shep. Prac. Couns. 2. Brac. lib. 2, c. 18.

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• See 2 Blac. Com. 316; Co. Lit. 384, a, n. (1); Fearne's Posth. Works, 11.

(1) See of the definition and properties of incorporeal hereditaments, Fearne's Posth. Works, 11.

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