deed. It may be added, in general terms, that every easement or servitude in lands, being an interest therein, can be acquired only by grant, or what is deemed to be evidence of an original grant. And in this are embraced rights in one man to take off the soil, or profits of the soil of another, if such right be of a freehold or inheritable character.2

A man may grant trees growing on his own land, without deed. So he may corn on the ground, or fruit upon trees, [*599] *standing on his land, although these may not have been severed. And the same is true of the timber, stone, or other materials of a house, then standing upon his estate, and the donee, in such a case, may take it away after the donor's death. The law regards these things as so much of the character of chattels, as not to require the formality of a deed, to pass property in them. But the grant of the vesture of land, such as the herbage, and the like, can only be made by deed. In speaking of deeds above, no distinction is made between an indenture and a deed poll, as a means of conveyance, the form, in that respect, being immaterial. Another familiar principle is applicable to surrenders, or revocations of grants, namely, that they must be of as high a nature as the instrument, by which the interests granted were created, so that if any interest is created by deed, it must be surrendered or revoked by deed.

But every right is not the subject of grant, though it relates to land, or an interest therein. Thus, a bare possibility of an interest which is uncertain, is not grantable, though a possibility, coupled with a present interest, may be granted. It has, accordingly, been held, that a grant by an heir apparent of his interest in his ancestor's estate, so long as his ancestor is living, conveys nothing, and is inop

11 Wood, Conv. 182; Perkins, 98; Monk v. Butler, Cro. Jac. 574.

2 Washburn, Easements, 18 and cases cited.

8 1 Wood, Conv. 179; 3 id. 16, note; Perkins, §§ 57, 59; Shep. Touch. 231. But see Trull v. Fuller, 28 Me. 545, and ante, p. *573, that a deed is necessary to convey a fixture, like a shingle-mill. Claflin v. Carpenter, 4 Met. 580; Smith v. Surman, 9 B. & C. 561; Evans v. Roberts, 5 B. & C. 829; Whitmarsh v. Walker, 1 Met. 313. But see Rodwell v. Phillips, 9 M. & W. 501; and Green v. Armstrong, 1 Denio, 550; M'Gregor v. Brown, 10 N. Y. 117, that a sale of standing trees can only be by writing, and not by parol. 6 Ibid.

4 1 Wood, Conv. 179, cites Noy, 54.

51 Wood, Conv. 185.

7 1 Wood, Conv. 182, 185; Fulwood's case, 4 Rep. 66; in Thomas Palmer's case, 5 Rep. 24 b; Jackson v. Catlin, 2 Johns. 261.

erative.1 So is a grant by a soldier of such land as may thereafter be given him by the government as a bounty.2 It must be an interest in the land existing in possession, reversion, remainder, by executory devise, or contingent remainder. An exception to this exists,

in many cases, where the grant is with a covenant of warranty, which would create an estate in the grantee by estoppel, whenever the grantor shall have acquired the estate which he has granted and warranted. So no possibility, right, or title to land in action, can be granted to a stranger, though it may be released to the tenant, by deed; nor, generally, are things in action, as rights and titles of entry or action concerning inheritances, grantable, except in special cases; as, for instance, if one be disseised, he may not grant the land, or a right of action to recover it. Nor can one who has a right to defeat a freehold granted to another, upon failure to perform a condition, grant over this right to a stranger, except in such cases as the benefit of the condition passes with the reversion.5

1 Davis v. Hayden, 9 Mass. 519; Dart v. Dart, 7 Conn. 255; Bayler v. Com'th, 40 Penn. St. 37; Lit. § 446; Co. Lit. 265 a.

2 Jackson v. Wright, 14 Johns. 193.

8 Jackson v. Catlin, 2 Johns. 261.

* Ante, pp. *473, *474; Trull v. Eastman, 3 Met. 121; Co. Lit. 265 a.

5 1 Wood, Conv. 183; Perkins, § 86; Lampet's case, 10 Rep. 51; Lit. § 347; Co. Lit. 214 a, 214 b; Shep. Touch. 231.

1. In considering the forms of deeds used in this country to effectuate private grants of lands, it may be well to recapitulate briefly the names and general characteristics of those of England, which have, to a greater or less extent, been adopted as modes of conveyance in this country. So much, however, has already been said of the doctrine of seisin, and livery of seisin at common law, as well as of uses and the forms of conveyance to which the statute of uses gave rise, that it would be little more than repetition to attempt to analyze or give in detail, the grounds upon which these various forms of conveyance originally depended for their adoption and use. The form employed, for ages, in England, until the Statute of Uses, and which continued to be one of the modes of conveyance

there until a comparatively recent period, was that of feoffment. It did not require any deed until the time of Charles II., and consisted of a gift of a feud, evidenced and consummated by an actual or symbolical livery of seisin. It, of course, applied to corporeal hereditaments, or such incorporeal hereditaments as remainders or reversions, where the seisin which perfects the estate, is committed to the holder of the particular estate as a kind of bailiff of the reversioner or remainder-man. It was always incumbent upon the feoffee, to indicate, in his gift, the nature and duration of the estate which he intended to give the *feoffee in the lands, and if [*604] no estate was limited therein, it was, constructively, an estate for the life of the feoffee. In carrying out the intention of the parties to the feoffment, it became customary to make written deeds, expressing the terms of the gift, though these did not obviate the necessity of livery of seisin.

A conveyance by "gift," is simply a feoffment, wherein the estate thereby limited or created, is one in tail. This is applying the term in its stricter sense, for in its broader meaning, the word gift imports no more than the transferring of the property of a thing from one to another, without a valuable consideration.2

2. The effect of a conveyance by feoffment was, that as it passed the actual seisin, if it proposed to convey a fee-simple, it created an actual fee-simple in the feoffee, by right or by wrong, according as the feoffor was or was not seized in fee. Thus the feoffment, even of an idiot or lunatic, was held effectual till avoided by process of law. The effect upon contingent remainders of a feoffment made by him. who had the particular estate, has been heretofore considered. It was to do away with this form of conveyance, as a means of injuriously affecting the rights of third parties, that a recent statute in England has declared, that no feoffment shall have any tortious operation.3

3. The deed or charter of feoffment was, originally, exceedingly brief and simple, as the reader may perceive by recurring to appendix No. 1, to the second volume of Blackstone's Commentaries.1 4. Conveyance by grant was the common-law mode of transfer

1 2 Bl. Com. 310–317.

2 3 Wood, Conv. 1.

8 Stat. 8 & 9 Vict. ch. 106, § 3; Wms. Real Prop. 121, 122; 4 Kent, Com. 481. * See 4 Kent, Com. 480.

ring or creating estates or interests in incorporeal hereditaments, of which there could be no livery of seisin. This was always by deed, and these interests passed only by a delivery of the deed. The difference between these two modes of conveyance gave rise to the expression with reference to the two classes of property, one "lying in livery," the other, "in grant." The words made use of in a grant, in creating or passing the estate, differed but little from those employed in a feoffment, and the two modes varied from each other only in the subject-matter of the conveyance. By the [*605] statute above cited, it is now declared that the conveyance of an immediate estate of freehold in corporeal hereditaments, shall be deemed to lie in grant as well as livery.1

5. One essential difference between a feoffment and a grant, has already been referred to, namely, their effect upon the interests of third persons, since grants cannot, like feoffments, create a tortious fee, but operate only upon the estate or interest which the grantor has in the thing conveyed, and can lawfully convey. A feoffment visibly operated upon the possession, a grant could only operate on the right of the party conveying. As possession and freehold were convertible terms at the common law, a conveyance which was considered as transferring the possession, was considered as transferring an estate of freehold, or as transferring the fee. But as grants only transferred a right, a conveyance of this kind could only transfer whatever estate the party had a right to convey. It is in this sense, that a feoffment is said to be a tortious, and a grant to be a rightful conveyance.3 And where "give and grant" are followed by "bargained and sold," it qualifies the mode of gift and grant, and converts it into bargain and sale,.without its being a feoffment.*

6. Grant is no longer confined to the conveyance of incorporeal hereditaments, and the term has been applied, by statute in New York, to the forms of deeds adopted there, though retaining, in all but name, the characteristics of the deeds previously in use in that State. And Wood, in his treatise on conveyancing, says: "The word grant taken largely, is where any thing is granted or passed

8 Co. Lit. 271 b; n. by Butler, § 1.

1 2 Sharsw. Bl. Com. 317, and note.

2

4 Kent, Com. 490.

4 Matthews v. Ward's Lessee, 10 Gill & J. 448.

5 4 Kent, Com. 491; Cornish, Purch. Deeds, 208.