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years, but to the remainder-man himself, by consent of the lessee for years. Without his consent, no livery of the possession can be given.
Livery in Deed. 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, come to the land or house, and there before witnesses, declare the contents of the feoffment or lease, on which livery is to be made. If it be made of land, the feoffor delivers to the feoffee a clod, a turf, or a twig, saying in effect: “I deliver these to you in the name of seisin of all the lands and tenements contained in this deed.” If it be of a house, the feoffor must take the ring or latch of the door, the house being empty, and deliver it to the feoffee in the same form, and thereupon the feoffee must enter alone, and shut the door. He may then open it, and admit the others.
Separate Tracts of Land, If the conveyance or feoffment be of divers lands, in the same county, in the feoffor's possession, livery of seisin of any parcel, in the name of the rest, suffices for all, but if in several counties, there must be as many liveries, as there are counties. If the title to these lands 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. 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, without consent of the particular tenant, and the consent of one will not bind the rest. It is prudent to endorse the livery of seisin on the deed, specifying the manner, place and time of making it, together with the names of the witnesses.
Livery in Law. This 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.” 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 bodily harm, and then his continual claim, made yearly, in due form of law, as near as possible to the lands, suffices. This livery in law cannot be given or received by attorney.
2. Gift. 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, the words of the conveyance being do or dedi, and the estate passing by living of seisin. The terms donor and donee are used.
3. Grants. Grants, concessiones, are the regular methods, by the common law, of transferring the property of incorporeal hereditaments, or such things, whereof no livery can be had. All corporeal hereditaments lie in livery, while others lie in grant. The operative words are " dedi et concessi,” have given and granted.
4. Leases. 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 has in the premises, for if it be for the whole interest, it would be an assignment. The usual words of operation in it are: "demise, grant and to farm let," demisi, concessi, et ad firmam tradidi. Farm or feorme is a Saxon word, meaning provision, and was used instead of rent or render, because anciently the greater part of rents were reserved in provisions; in corn or poultry, until money became more abundant. By this conveyance, an estate for life, for years or at will may be created, either in corporeal or incorporeal hereditaments. In the former, livery of seisin is necessary.
Duration of Leases. By the common law, as it stood for centuries, all persons seised, of an estate, might let leases to endure so long as their own interest lasted, but no longer. Hence a tenant in fee-simple might let leases of any duration, for he had the entire interest, but a tenant in tail or for life could make no leases, which would bind the issue in tail or reversioner, nor could a husband, seised jure uxoris, make a valid lease for any longer term than the joint lives of himself and wife, for then his interest expired. Corporations aggregate might have made what estates they pleased, without the confirmation of any person whatever.
Where Lease Unreasonable. Where as now, by statutes, this power, where it was unreasonable and might be made illuse of, is restrained; and where in 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 statutes.
Enabling Statute. The statute of Henry VIII empowers three kinds of persons to make leases, to endure for three lives or twenty-one years, who could not do so before. A tenant in tail by such lease may bind bis issue. in tail, but not those in remainder or reversion. A husband seised in the right of his wife in fee-simple or fee-tail, provided his wife join in the lease, may bind her son 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 bind their successors.
Requisites of such Leases. Certain requisites however must be observed to make such leases binding: (1) The lease must be by indenture, and not by deed poll or by parol. (2) It must begin from the day of the making, and not in the future. (3) Any old lease in existence must be 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 shall not exceed such period, but may be for a shorter term. (6) It must be of corporeal hereditaments, and not of such things as lie merely in grant. (7) It must be of lands or tenements, most commonly let for twenty years past. (8) The most usual 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 statute to prevent abuses.
Disabling or Restraining Statute. The statute of Elizabeth, made for the benefit of the successor, enacts, that all grants by archbishops and bishops other than for twenty-one years, or three lives from the making, or without reserving the usual rent, are void. This restriction was afterwards extended to certain other inferior corporations, sole and aggregate.
5. Exchange. This is a mutual grant of equal interests, the one in consideration of the other. The estates exchanged must be equal in quantity; not of value, for that is immaterial, but of interest, as fee-simple for fee-simple, a lease for twenty years for a lease for the same period. The exchange must be of things that lie either in grant or in livery, but no livery of seisin, even in exchanges of freehold, is necessary to perfect the conveyance, for each party stands in the place of the other, and occupies his right. But entry must be made on both sides, for if either party die before entry, the exchange is void, for want of sufficient notoriety. If after an exchange of lands, either party be evicted of those which were taken by him in exchange, through defect of
the other's title, he shall return to the possession of his own, by virtue of the implied warranty contained in all exchanges.
6. Partition. This takes place, when two or more jointtenants, coparceners, or tenants in common, agree to divide the lands, so held among them in severalty, each taking a distinct part. Here, as in some instances, there is an unity of interest, and in all an unity of possession, it is necessary that they all mutually convey, and assure to each the several estates they are to take separately. By the common law, coparceners, being compellable to make partition, might have made it by parol only, but now a deed is in every case necessary.
Explanation of these Conveyances. The above are the several species of primary or original conveyances. Those which follow are of the secondary or derivative sort, which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore 'or transfer the interest granted by such original conveyance.
7. Releases. These are a discharge, or a conveyance of a man's right in lands or tenements to another, who has some former estate in possession. The words used therein are: mised, released and forever quit claimed."
How They may Enure. (1.) By way of enlarging an estate, as if there be a tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee. In this case the releasee must be in possession of some estate, for the release to work upon.
(2.) By way of passing an estate, as when one of two coparceners releases to the other, this passes the fee-simple of the whole.
(3.) By way of passing a right, as if a man be disseised and passes to the disseisor all his right; here the disseisor acquires a new right, and that which was tortious is rendered lawful.
(4.) By way of extinguishment.
(5.) By way of entry and feoffment, as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former companion, with the same effect as if the disseisee had entered, and afterwards had enfeoffed one of the disseisors in fee.
8. Confirmation. This is of a nature allied to a release.
Coke defines it to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure, or whereby a particular estate is increased. The words of making it are: “have given, granted, ratified, approved and confirmed.” Thus if a tenant for life gives a lease for forty years, and dies during the term, here the lease for years is voidable by him in reversion, yet if the latter had confirmed the estate of the lessee for years before the death of the life tenant, it is no longer voidable, but sure.
9. Surrender. This rendering up is of a nature opposite to a release ; for as that operates by the greater estate descending upon the less, a surrender is the falling of a less estate into a greater. It is the yielding up of an estate for life or years to him who has the immediate reversion or remainder, wherein the particular estate may merge, by mutual agreement between them. The usual words are: has “surrendered, granted and yielded up.” The party surrendering must be in possession, and the other party must have a higher estate; hence a tenant for life cannot surrender to one who has a remainder in years.
Livery of Seisin Unnecessary. In a surrender there is no need for livery of seisin, for there is a privity of estate between the parties, and livery took place at its creation. Nor is livery required on a release or confirmation in fee to a tenant for years or at will, though a freehold thereby passes, since the reversion of the lessor or confirmor and the particular estate of the re-lessee or confirmee are one and the same estate.
10. Assignment. This is properly a transfer, or making over to another of the right one has in any estate, though it usually applies to an estate for life or years. It differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion, while in assignment, he parts with the entire property, and the assignee stands in his place.
11. Defeazance. This is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which, the estate created, may be defeated. In this manner mortgages were in former times usually made, the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void, on repayment of the money borrowed, at a certain day.