cannot (at the common law) be made but by livery of seisin; which livery, being an actual manual tradition of the land, must take effect in praesenti, or not at all. (9) 30 On the creation of a freehold remainder, at one and the same time with a particular estate for years, we have before seen, that at the common law livery must be made to the particular tenant. (r) But if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing; “nam "quod semel meum est, amplius meum esse non potest;" (s) but it [315] must be made to the remainder-man himself, by consent of the les see for years; for without his consent no livery of the possession can be given; (t) partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given (v) for introducing the doctrine of attornments. 31 Livery of seisin is either in deed, or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney (for this may as effectually be done by deputy or attorney, as by the principals themselves in person), come to the land, or to the house; and there in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect: "I deliver these to you in the name of seisin of all "the lands and tenements contained in this deed." But if it be a house, the feoffor must take the ring or latch of the door, the house being quite empty, and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others. (w) If the conveyance or feoffment be of divers lands, lying scattered in one and the same county, then in the feoffor's possession, livery of seisin of any parcel, in the name of the rest, sufficeth for all; (x)* but if they be in several counties, there must be as many liveries as there are counties. For if the title to these lands comes to be disputed, there must be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. Besides anciently this seisin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighbourhood, who attested such delivery in the body or on the back of the deed: according to the rule of the feodal law, (y) pares debent interesse investiturae feudi, et non alii: for which this [316] reason is expressly given: because the peers or vasals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though afterwards the ocular attestation of the pares was held unne (30) This is still so in conveyances at common law, but it is otherwise in conveyances to uses under the statute. 1 Saund. on Uses and T. 3 ed. 128, 9. 4 Taunt. 20. Willes, 682. 2 Wils. 75. (31) But the authority given to an attorney, &c. for this purpose should be by deed. And the authority so given, whether by the feoffor or feoffee, must be completely executed or performed in the lifetime of both the principals; for if either of them die before the livery of seisin is com pleted, his attorney cannot proceed, because his authority is then at an end. See 2 Roll. Ab. 8 R. pl. 4, 5. Co. Litt. 52. b. (32) By the act of induction, a parson is put into actual possession of a part for the whole. 2 B. & A. 470. cessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed (like that of all other attestations), (2) was still reserved to the pares or jury of the county. (a) Also, if the lands be out on lease, though all lie in the same county, there must be as many liveries as there are tenants: because no livery can be made in this case but by the consent of the particular tenant; and the consent of one will not bind the rest. (b) And in all these cases it is prudent, and usual, to endorse the livery of seisin on the back of the deed, specifying the manner, place, and time of making it; together with the names of the witnesses. (c) And thus much for livery in deed. Livery in law is where the same is not made on the land, but in sight of it only; the feoffor saying to the feoffee, "I give you yonder land, enter "and take possession." Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise; unless he dares not enter, through fear of his life or bodily harm: and then his continual claim, made yearly, in due form of law, as near as possible to the lands, (d) will suffice without an entry. (e) This livery in law cannot, however, be given or received by attorney, but only by the parties themselves. (ƒ) 2. The conveyance by gift, donatio, is properly applied to the creation of an estate-tail, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of an estate passing by it: for the operative words of conveyance in this case are do or dedi; (g) and gifts in tail are equally imperfect without livery or seisin, as feoffments in fee-simple. (h) And this is the only distinction that Littleton seems to take, when he [317] says, (i) "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. In common acceptation gifts are frequently confounded with the next species of deeds: which are, 33 3. Grants, concessiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or such things whereof no livery can be had. (k) For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advowsons, commons, rents, reversions, &c. to lie in grant. (1) And the reason is given by Bracton: (m) "traditio, or livery, nihil aliud est quam "rei corporalis de persona in personam, de manu in manum, translatio "aut in possessionem inductio; sed res incorporales, quae sunt ipsum jus "rei vel corpori inhaerens, traditionem non patiuntur." These therefore pass merely by the delivery of the deed. And in signiories, or reversions of lands, such grant, together with the attornment of the tenant (while attornments were requisite), were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in its subject-matter: for the operative words therein commonly used are dedi et concessi, "have given and granted." 34 z See pag. 307. b Dyer, 18. e Co. Litt. 42. i § 57. a Gilb. 10. $5. (33) See in general, Com. Dig. Grant; 2 Saund. index, tit. Grant; and as to the construction of them when made by a subject, post 347. and Thomas Co. Litt. 2 vol. 606. (34) And for this reason leases for lives must be made to take place in præsenti, not in futuro. 4. A lease is properly a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense), made for life, for years, or at will, but always for a less time than the lessor hath in the premises; for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, "demise, [318] grant, and to farm let; dimisi, concessi, et ad firmam tradidi," Farm, or feorme, is an old Saxon word signifying provision: (n) and it came to be used instead of rent or render, because anciently the greater part of rents were reserved in provisions: in corn, in poultry, and the like; till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme: though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent. By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments; though livery of seisin is indeed incident and necessary to one species of leases, viz. leases for life of corporeal hereditaments; but to no other. Whatever restriction, by the severity of the feodal law, might in times of very high antiquity be observed with regard to leases; yet by the common law, as it has stood for many centuries, all persons seised of any estate might let leases to endure so long as their own interest lasted, but no longer. Therefore tenant in fee-simple might let leases of any duration; for he hath the whole interest, but tenant in tail, or tenant for life, could make no leases which should bind the issue in tail or reversioner: nor could a husband, seised jure uxoris, make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants for life, where the fee-simple was in abeyance, might (with the concurrence of such as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-simple, such as parsons and vicars with consent of the patron and ordinary. (o) So also bishops, and deans, and such other sole ecclesiastical corporations as are seised of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or controul. [319] And corporations aggregate might have made what estates they pleased, without the confirmation of any other person whatsoever. Whereas now, by several statutes, this power, where it was unreasonable, and might be made an ill use of, is restrained; and, where in the other cases the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statute. We will take a view of them all, in order of time. And, first, the enabling statute, 32 Hen. VIII. c. 28. empowers three manner of persons to make leases, to endure for three lives or one-andtwenty years; which could not do so before. As first, tenant in tail may by such leases bind his issue in tail, but not those in remainder or reversion.* Secondly, a husband seised in right of his wife, in fee-simple or fee-tail, Formerly it was held that a lease made to commence "from henceforth," "from the date," "from the day of the date," and the like, was a lease to commence in futuro, not in præsenti, but throughout the modern cases, a contrary opinion has been held, and I think with great jus Archbold tice. (35) And even to bind the issue in tail, the lease must have been duly perfected by his ancesfor. Co. Litt. 44. a. Bac. Ab. tit. Leases, (D) 2. provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persons seised of an estate of fee-simple in right of their churches, which extends not to parsons and vicars, may (without the concurrence of any other person) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding. (p) 1. The lease must be by indenture; and not by deed poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time.36 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty-one years, or three lives, and not for both. 5. It must not exceed the term of three lives, or twenty-one years, but may be for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor cannot resort to them to distrain. (9) 7. It must be of lands and tenements most commonly letten for [320] twenty years past; so that if they had been let for above half the time (or eleven years out of the twenty) either for life, or for years at will, or by copy of court roll, it is sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards, imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given. Next follows, in order of time, the disabling or restraining statute, I Eliz. c. 19. (made entirely for the benefit of the successor), which enacts, that all grants by archbishops and bishops (which include even those confirmed by the dean and chapter; the which, however long or unreasonable, were good at common law), other than for the term of one-and-twenty years or three lives from the making, or without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the act. (r) 37 But by a saving expressly made, this statute of 1 p Ibid. But now by the statute 5 Geo. III. c. 17. a lease of tithes or other incorporeal bereditaments, alone, may be granted by any bishop or any such ecclesiastical or eleemosynary corporation, and the successor shall be entitled to recover the rent by an action of debt; which (in case of a freehold lease) he could not have brought at the common law. r Co. Litt. 45. (36) By various acts of parliament, and also frequently by private settlements, a power is granted of making leases in possession, but not in reversion, for a certain term; the object being that the estate may not be encumbered by the act of the party beyond a specific time. Yet persons, who had this limited power of making leases in possession only, had frequently demised the premises to hold from the day of the date; and the courts in several instances had determined that the words from the day of the date excluded the day of making the deed; and that of consequence these were leases in reversion, and void. See Cro. Jac. 258. 1 Buls. 177. 1 Rol. Rep. 387. 3 Buls. 204. Co. Litt. 46. b. But this question having been brought again before lord Mansfield and the court of king's bench, it was established, that from the day might either be inclusive or exclusive of the day; and therefore that it ought to be construed so as to effectuate these important deeds, and not to destroy them. Pugh. v. Duke of Leeds, Cowp. 714. Freeman v. West, 2 Wils. 165. Christian. (37) The law of concurrent leases is somewhat involved from the conflicting operation of the ancient common law with the several statutes passed on the subject; but the practical results are as follows: If a bishop have made a lease for twenty-one years, under the 32 Hen. VIII. he may make a a fresh lease for twenty-one years from the making thereof, at any time exceeding a year before the expiration of the first, which will be valid upon being confirmed by the dean and chapter. For it is of no consequence to the successor how long the old lease has to run at the period of making the new one, as the term of the latter commences from its date, and both are thus run Eliz. did not extend to grants made by any bishop to the crown; by which means queen Elizabeth procured many fair possessions to be made over to her by the prelates, either for her own use, or with intent to be granted out again to her favourites, whom she thus gratified without any expense to herself. To prevent which (s) for the future, the statute 1 Jac. I. c. 3. extends the prohibition to grants and leases made to the king, as well as to any of his subjects. Next comes the statute 13 Eliz. c. 10. explained and enforced by the statutes 14 Eliz. c. 11. & 14., 18 Eliz. c. 11., and 43 Eliz. c. 29.; 38 which extend the restrictions laid by the last-mentioned statute on [321] bishops, to certain other inferior corporations, both sole and aggre gate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclesiastical or eleemosynary corporations, and all parsons and vicars, are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty-one years, or three lives, from the making. 2. The accustomed rent, or more, must be yearly reserved thereon. 30 3. Houses in corporations, or market towns, may be let for forty years, provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repair; and they may also be aliened in fee-simple for lands of equal value in recompense. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste. (t) 6. All bonds and covenants tending to frustrate the provisions of the statutes of 13 & 18 Eliz. shall be void. Concerning these restrictive statutes there are two observations to be made; first, that they do not by any construction enable any persons to make such leases as they were by common law disabled to make. Therefore a parson, or vicar, though he is restrained from making longer leases than for twenty-one years or three lives, even with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor without obtaining such consent (u) 40 Secondly, that though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a sole corporation; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most concerned in interest. For the act was intended for s11 Rep. 71. t Co. Litt. 45. u Co. Litt. 44. ning out at the same time; and if the first expire the next year, the second will expire twenty years after, as there is not at any period an interest of more than twenty-one years in lease. But there cannot be two leases in the same way running for lives at the same time, nor one lease for lives and another for years; they must be both of the latter description, or they cannot co-exist, or concar in conferring an interest upon the lessee. If the second lease be granted to any other than the lessee in the first, the lessor may lose his remedy by distress for the recovery of his rent during the continuance of the old lease, because the old lessee may pay his rent to the new lessee, who is become the reversioner, and against whom the lessor can only proceed by action of debt or covenant. See Bac. Ab. tit. "Leases and Terms for Years," E. Rule 3. Chitty. (38) See post 322. note. (39) And where a part of land usually let for a certain rent is leased, the ancient rent must be reserved pro rata, 39 & 40 Geo. III. c. 41. (40) If the lease has not been confirmed by the ordinary, the acceptance of rent by the success. or will not ratify the rest of the term which may be unexpired at the time of the death or cession of the lessor. Bro. Abr. Acceptance, pl. 26. And a lease of lands which have never before been in lease, though confirmed by the patron and ordinary, and in every other respect duly executed, is not binding upon the successor. 1 Bingh. Rep. 24. |