CHAPTER XII. OF SEISIN AS A REQUISITE OF DOWER. 1. The general doctrine. 2-5. Nature and incidents of seisin. 6-11. Seisin in the United States. 12-15. Mere right of entry insufficient to give dower at common law. 16. Judgment alone against disseisor inoperative to confer seisin. 17. Execution served by the heir insufcient to give dower. 18. Necessity of actual entry abrogated by statute in England. 27. Conveyances under the statute of uses. 23. Shifting uses. 29. Doctrine of uses in the United States. 30. Seisin of incorporeal hereditaments. 31, 32. Tortious seisin. 33. Joint seisin. 34, 35. When rendered sole by relation. 36-38. Transitory seisin. 39-46. Conveyance and simultaneous 19-21. The doctrine in the United reconveyance by mortgage. States. 47, 48. Requisites of the rule making 22-23. Effect of death of bargainee such seisin transitory. before enrolment. 24-26. Seisin in law sufficient to give dower. 49. Instantaneous seisin. The general doctrine. 1. It was an inflexible rule of the common law that the right of dower could not attach upon any estate of which the husband had not been seised, either in deed or in law, at some period during the coverture; and the courts, both of law and equity, were accustomed to enforce this rule with great rigor and severity. A mere right to, or interest in land, unless accompanied by technical seisin, was deemed insufficient to confer a title of dower. Some degree of familiarity with the general principles which fix and determine the legal requisites of seisin, is necessary, it will be perceived, to a proper understanding of the full force and effect of this rule. To this subject, therefore, we will now briefly give our attention. 1 Litt. sec. 36; Perk. sec. 301; Fitzh. N. B. 147, (E.); Co. Litt. 31, a.; Park, Dow. 24; Tud. Cas. 45. Nature and incidents of seisin. 2. Under the old feudal system the mode of transferring a freehold was by corporeal investiture, or livery of seisin, and this ceremony was absolutely necessary to a perfect and complete transfer of the estate. It consisted, simply, in an open and notorious delivery of the possession to the proposed tenant of the freehold, in the presence of the pares curiæ, or peers of the lord's court; and this was usually effected by the lord of the manor, or some one authorized to act in his name, going upon the land with the tenant, and making a symbolic delivery of the possession to him by placing in his hand some portion of the premises, such as a turf or a twig severed therefrom, the pares curiæ acting as witnesses of the transaction. This act of investiture was denominated livery of seisin. No deed or other writing was necessary to perfect the title of the tenant, though it was not an uncommon practice, as a means of preserving some evidence of the transfer, to record, in what were termed brevia testata—corresponding to some extent with deeds of modern date-the nature of the services which the tenant was to render, and the terms and conditions upon which he was to hold the land. This record was authenticated by the seal and name or mark of the lord, attested by some of the pares. The formality of livery of seisin being completed, the party thus placed in possession became, to all intents and purposes, seised in deed, as tenant of the freehold.' 3. Although the system of military tenures was abolished at a comparatively early period, yet many of its peculiar features had become so interwoven with the law of real property, that it became a matter of great difficulty, if not indeed almost an impossibility, to make a thorough and entire abolition of all the incidents of the system. The rule requiring livery of seisin became engrafted upon the common law, and was preserved in England until the 8th and 9th of Victoria, (1845,) at which time it was finally abolished. In modern English practice livery of seisin was exactly similar to the investiture of the feudal law, and in common law conveyance was indispensable to a complete transfer of title to the purchaser. The mere signing and sealing of a deed of feoffment of lands, unless possession were formally delivered by the feoffor to the feoffee, was in no in 11 Sulliv. Lect. 142, 145; Co. Litt. 266, b. n. 217; Stearns' Real Act. 2, 3; 1 Spence's Eq. Juris. 139, 160; 1 Washb. Real Prop. 32, 33; Green v. Liter, 8 Cranch, 229. stance sufficient to transfer an estate of freehold. It did not convey the estate itself, but was regarded merely as evidence of the nature of the conveyance. Without the formality of livery of seisin, the deed passed only an estate at will.' 4. Livery of seisin at common law consisted of two kinds: livery in deed, and livery in law. The feoffer might go upon the premises with the feoffee, and there, taking the ring of the door of the principal mansion, or a turf or a twig, deliver the same. to the feoffee in the name of seisin; or he might say to the feoffee, "I am content that you should enjoy this land according to the deed," or words of similar import. Either of these modes constituted livery of seisin in deed; but so strict was the law that a mere delivery of the deed on the premises was not sufficient. It was necessary that it should be delivered in the name of seisin. Livery in law, was where the feoffer went within sight of the premises, and the former said to the latter, "I give you yonder house, or land; go and enter into the same, and take possession of it accordingly." If the feoffee entered in pursuance of this authority during the lifetime of the feoffor, the seisin was complete. Or if he could not enter without endangering his life, it was sufficient for him to venture as near as might be consistent with his safety, and there make claim to the land. This was also sometimes called a constructive seisin; and the same term has been applied to cases where a grantee, or the heir, of several parcels of land in the same county, enters into one parcel in the name of the whole, which he may do where there is no conflicting possession of the parcels not actually entered upon. Livery of seisin being thus made, the feoffee became invested with the legal title of the freehold, and was said to be seised thereof in deed.2 5. Seisin in law, is where title is cast upon a person by operation of law. Title to lands acquired by descent is an instance of this. Before entry the heir is said to be seised in law. But an actual entry upon the lands, either in person, or by some properly authorized agent, is necessary at common law, to invest him with seisin in deed.3 11 Inst. 48, a.: 4 Greenl. Cruise, 6, 5. 24 Greenl. Cruise, p. 67, 22 8, 9, and p. 70, 22 11, 12, 13; Litt. sec. 417, 418, 419; Co. Litt. 48, a. b.; Thoroughgood's case, 9 Co. 136, a.; Vaughan v. Holdes, Cro. Jac. 80; Parsons v. Perns, 1 Mod. 91; Dow v. Stock, Gow R. 178; McLardy v. Flaherty, 3 Kerr, N. B. Rep. 455. 3 Litt. sec. 448; 1 Roper, H. and W. by Jacob, 352, 353. As to the effect of conveyances under the statute of uses, see infra, & 27. Seisin in the United States. 6. It may be stated as a general proposition that the common law mode of conveyance by feoffment and livery of seisin, wast never adopted in the United States. There are, however, some faint traces of the use of livery of seisin to be discovered in the early history of New England, and perhaps in some other portions of the country. Mr. Sullivan, in his treatise on Land Titles, says the ceremony was practiced in the early settlement. of the country, and refers to an instance where the colony of Plymouth made livery to Vines and Oldham of their patent on Saco River, in 1642. And he adds that it was observed in York, Maine, until 1692. Judge Sharswood expresses the opinion that prior to the Statute of Frauds and Perjuries of 21st March, 1772, a parol feoffment, with livery, was a valid conveyance of lands in Pennsylvania.3 Massachusetts dispensed with livery of seisin by statute in 1642. In Plymouth it was superseded at an early date, by deed acknowledged and recorded. And the mode of conveying lands by feoffment with livery of seisin was also long since abolished in New York by statute. In many of the States it was never heard of in actual practice. 7. In this country the conveyance of lands is generally, if not universally, regulated by statute in the several States; each State for itself prescribing what acts or formalities shall be necessary to pass title to, or an interest in, lands within its own particular jurisdiction. Generally, also, a deed made, acknowledged, delivered, and recorded in the manner prescribed by statute, is all that is required to render a transfer of the title complete, and to invest the purchaser with seisin in deed of the lands conveyed. The recording of the conveyance is regarded, in many of the States, as the legal equivalent for livery of seisin. In other States, the mere delivery of the deed, without registration, operates to pass a perfect title, as against the grantor and his representatives, and all other persons having notice of the rights of the grantee. In some instances, also, the enact 1 4 Kent, 84; 1 Spence, Eq. Juris. 156. Ibid.; Smith, Land. and Ten. Morris' ed. 6, note. 4 Colony Laws, 85, 86; 1 Washb. Real Prop. 34, note 1. 5 1 Rev. Stat. p. 738, 136; ed. 1829. 6 Davis v. Mason, 1 Pet. 503, 508. 7 [See Day v. Solomon, 40 Ga. 32.] ments go so far as to make an unrecorded deed good as against judgment creditors, whether with or without notice. In several of the States, however, the registry of the deed is made an essential prerequisite to its validity, and a failure to comply with this statutory requirement is as fatal to a claim of seisin under such deed, as was the omission of livery of seisin to a feoffment at common law. An old statute of Massachusetts, passed in 1652, declared that a sale of lands should not be good unless made by deed acknowledged and recorded according to law. But this enactment has long since been repealed. In North Carolina, however, in the case of Thomas v. Thomas, it was held, under a statute of that State, that registration of a deed for lands is necessary to make the seisin complete. And the Tennessee act of 1831 is substantially to the same effect. But this is the utmost limit to which any of the statutes or reported cases go. It is believed that in no State is an actual entry necessary, where there is no adverse possesssion at the time of the conveyance, to give such conveyance validity, or to confer upon the grantee seisin in deed of the premises conveyed. The exception introduced in cases of adverse possession will be noticed on a subsequent page. 8. A case showing the necessity of registration as against a subsequent purchaser without notice, even where possession has been taken, is reported in Massachusetts. A grantee of lands entered and enjoyed them for a time, and afterwards reconveyed to the grantor. Neither of the deeds was recorded. Subsequently the original grantor conveyed the same lands to a third person, who was entirely ignorant of the prior conveyances, and it was held that as against such purchaser, the first 14 Greenl. Cruise, *45, n., and *47, n.; 1 Ibid. 340, n.; 1 Hilliard, Real Prop. 2d ed. 82, 18; 1 Washb. Real Prop. 36, 84; Smith, Land. and Ten., Amer. ed. 6, n.; McKee v. Pfout, 3 Dall. 486, 489; Pidge v. Tyler, 4 Mass. 546; Knox v. Jenks, 7 Mass. 488, 494; Goodwin v. Hubbard, 15 Mass. 210, 214; Clay v. White, 1 Munf. 162, 170; Barr v. Galloway, 1 McLean, 476; Proprietors, &c., v. Permit, N. H. 512; Ward v. Fuller, 15 Pick. 185; Holt v. Hemphill, 3 Ohio, 232; Helfenstine v. Garrard, 7 Ohio, part 1, 275; Hall v. Ashby, 9 Ohio, 96; Borland v. Marshall, 2 Ohio State, 314. 2 Colony Laws, 85; 1 Washb. Real Prop. 34, n. See Rev. St. Mass. (1836,) 407, 28. Thomas v. Thomas, 10 Ired. 123. See, also, Tolar v. Tolar, 1 Dev. Eq. 456; Morris v. Ford, 2 Dev. Eq. 418; Tate v. Tate, 1 Dev. & Bat. Eq. 22, 23. 5 See Chester v. Greer, 5 Humph. 26; also Stribling v. Ross, 16 Ill. 122, for the rule in that State. • Infra, 21. |