tween grant and writing, in order to produce that notoriety in the transfer GRANT. of them, which was produced in the transfer of corporeal hereditaments, by delivery of the possession. But, except Difference bethat a feoffment was used for the transfer of corporeal heredi- feoffient. taments, and a grant was used for the transfer of incorporeal hereditaments, a feoffment and a grant did not materially differ, and the words dedi et concessi were equally used as the operative words of both. 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 him, 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 law books, where they describe a feoffment to be a tortious, and a grant to be a harmless 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 (1). d 2 Blac. Com. 317; Co. Lit. 271, b, n. (1). • Co. Lit. ub. sup. (1) A great part of Mr. Knowler's celebrated argument in the case of Taylor on the demise of Atkins v. Horde, turns on this distinction. See 1 Burr. 92, GRANT. Who may convey by grant. What may be the subject of a grant. So there can be no general occupant of things which lie in grant, and which cannot pass without deed, as rents, • &c. because these things having no natural existence, but consisting purely in the agreement, and depending on the institution of the society, for their existence, no man can enter to possess them; besides, as these things are framed, and have their existence by the municipal laws of the nation; so those laws have established the solemnity of a deed to transfer them. II. WHO MAY CONVEY BY GRANT. It has been before observed, that no one can convey by feoffment who has not a present estate of freehold in an hereditament of a corporeal nature, because of the operation of a feoffment being by delivery of the possession ; but neither corporeality nor possession is necessary for the operation of a grant, this species of deed transferring, as we have before observed, the right only of the grantor to the thing granted, and whether that right be to the present or future possession. Hence, a person entitled to an estate incorporeal, whether in possession or not; or corporeal, if in remainder or reversion, may transfer it by granti. The grantor must, however, (contrary to what has been said of a feoffment), have a right to the thing granted: if, therefore, he have no right to it at the time, although he should afterwards become possessed of it, it will not pass by a previous grant of it, notwithstanding that it may be granted by an appropriate description, and was intended to pass when acquired. The reason of this has been mentioned under the head of Feoffment. III. WHAT MAY BE THE SUBJECT OF A GRANT. WITH respect to things transferrible by grant, it is observable that some are grantable de novo, or in their first * Perk. s. 65. f See Holmes v. Sellers, 3 Lev. 305. creation, but not afterwards, whilst others are grantable over from one man to another in infinitum. But generally speaking, all incorporeal things lying in grant, are grantable over in fee-simple, for life, or years, at pleasure: rents or services, therefore, reserved upon any estate, and rents granted out of lands, are grantable over in infinitum ; and that even before the grantor has seisin of them 1 (1). h And the grantee of a rent-charge in fee may grant over any part of it; though it hath been objected to these kind of grants or divisions of rent-charges, that thereby the tenant is exposed to several suits and distresses for a thing which in its original creation was entire and recoverable upon one avowry; but the answer to this is, that it is the tenant's own choice, whether he will submit himself to that inconvenience or not, because the grantee, before the 4 & 5 Anne, c. 16, s. 9, could not take any benefit of the grant by distress, without the consent or attornment of the tenant; besides, since the law allowed of such kind of grants, and thereby established such sort of property, it would have been unreasonable and severe to hinder the proprietor to make a proper distribution of it, for the promotion of his children, or to provide for the contingencies of his family, which were in his view". And if a man have a rent reserved on a particular estate he may grant over a parcel of it. But a rent or service suspended cannot be granted. Neither can a man grant a rent issuing out of a rent. And as it is a general rule, that a man cannot grant or charge that which he hath not; if a man grant a rent-charge out of the manor of Dale, and in truth he hath not any thing in the manor of Dale, and Perk. 91; and see 2 Saund. Uses and Trusts, 33. 9 H. 6, 13; 2 Rol. Abr. 45; Co. Lit. 148, a; but Cro. (1) A rent-charge may also be conveyed by fine and recovery, 7, lease and release, bargain and sale, and covenant to stand seised, as well as by grant. See 2 Saund. Uses, 33. GRANT. GRANT. afterwards he purchase the manor of Dale, yet he shall hold it discharged * (1). But an annuity it seems is not grantable over after the first creation of it, unless it be expressly granted to the assigns of the original grantee'. If a rent be granted in tail, the grantee cannot grant it over while it continues a rent, because as such, it may be entailed within the statute de donis; but if the grantee brings his writ of annuity, it is no longer within the statute, because then it is become a charge merely personal, without any relation to the land out of which it was at first granted, and therefore is become a fee-simple conditional, as such a gift of lands had been before the statute; and therefore the annuity, not being within the statute may be aliened or granted overTM. Advowsons are grantable in fee-simple, for life, or years, from man to man in infinitum, and the grantee may grant it over before he has presented to it; for he can have no seisin of it before it becomes void, and by the grant itself he is seised of the freehold, which he may grant over". Also the presentation to a church before the church is void, is grantable, but when the church is void, that turn is not grantable, for it is then in the nature of a thing in action (2). Also rectories and tithes, and portions of tithes and pensions, are grantable from man to man in infinitum°. (1) But where a man having debauched a young woman, and intending afterwards to put a trick on her, made a settlement on her of 30l. a year for life, out of an estate he had nothing to do with; yet the Court of Exchequer decreed him to make it good out of an estate he had of his own. Abr. Eq. 87. (2) And an advowson being limitable to uses, it may also be conveyed by bargain and sale, covenant to stand seised, and lease and release; so may it also by fine or recovery. 2 Saund. Uses and Trusts, 36. Reversions and remainders, when vested, are grantable from one man to another, in fee-simple, fee-tail, for life or years (1). And if I have a tenancy for life of three houses, I may grant the reversion of two of them. And if I have the reversion of three houses and four acres of land, I may grant the reversion of two houses and of two acres of land. And if there be tenant in tail of an acre of land with remainder to his right heirs, he may grant over this remainder by itself; and yet it is such a thing as the tenant in tail himself may bar by a common recovery. But if a grant be of land to I. S. for years, the remainder to the right heirs of I. D. and I. D. is living; this remainder is not grantable so long as 1. D. lives P. Commons of pasture, of turbary, of fishing, of estovers, in gross or appurtenant, are also in general, when holden in fee, grantable in fee, for life or years, from man to man in infinitum. And the grantee of a common may grant it over before he hath any seisin thereof by the mouths of his cattle, for the freehold is in him by the grant. But it is said, that if a common in gross, and without number, be granted to a man for life' or years', he cannot grant it over unless the original grant be made to him and his assigns, because of the prejudice it would be to the tenant of the land, and even if it be granted to a man and his heirs, without the word "assign," this it is said is not grantable over to another ". But if common for a certain number of beasts be so granted, it seems the law is (1) So by bargain and sale, lease and release, covenant to stand seised or fine, but not by recovery or feoffiment. 2 Saund. Uses, 34. GRANT. |