[the ancient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses (q). With our Saxon ancestors, the delivery of a turf was a necessary solemnity to establish the conveyance of lands (r). And to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward, by delivery of a rod or verge, and then from the lord to the purchaser, by re-delivery of the same, in the presence of a jury of tenants. Conveyances in writing were the last and most refined improvement. For the donation when depending on the testimony and remembrance of witnesses [was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities, introduced by the advancement of commerce, required means to be devised of charging and incumbering estates], without an absolute sale thereof [and of making them liable to a multitude of conditions and minute designations.] [Written deeds(s) were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed: and now by the Statute of Frauds (29 Car. II. c. 3, s. 1), no estate created by livery of seisin only, and not in writing signed by the party or his agent, shall be of any force except to constitute an estate at will. Since this statute, therefore, a feoffment is not effectual unless accompanied either by deed or writing so signed. But the transaction is still considered as deriving its legal force from the livery, and not from the written instrument (t). (2) Stiernhook, de jure Sueon. 1.2, c. 4. (r) Hickes, Dissert. Epistolar. 85. (s) A deed of feoffment is also called a charter of feoffment; and this is the [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 of 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 (u). And in all these cases it is prudent and usual to indorse 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 (x).] 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 posses"sion." Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise.] By the ancient law, indeed, if he dared not enter through fear of his life or bodily harm, his continual claim (y) made yearly in due form, would suffice without an entry. But this is now altered by a late statute (2), which provides that no (u) Co. Litt. 48a; West. Symb. 251. Farther information will be found in Blackstone as to the cases in which more than one livery will be required, in consequence of the lands lying in different counties, or the like. (x) As to the manner of making livery of seisin, see Roe v. Rashleigh, 3 Barn. & Ald. 156; Doe v. Taylor, 2 Nev. & M. 508. (y) Litt s. 421; Co. Litt. 48 b; 2 Inst. 483. (*) 3 & 4 Will. 4, c. 27, s. 11. right of entry or action shall in future be preserved by continual claim. [Livery in law cannot be given or received by attorney, but only by the parties themselves (a).] By feoffment, not only a fee simple may be conveyed, but an estate tail or an estate for life; for these (as we have seen) are all estates of freehold. But the term "feoffment" is considered as importing more properly, a conveyance of the fee; while the conveyance of an estate tail, is more technically called a gift; that of an estate for life, a demise or lease (b). The last point that we shall notice with respect to this conveyance is, that it is distinguished from others by the following property, that, when made (without fraud) by a person in actual possession, it will always have the effect of passing to the feoffee a freehold, either by right or by wrong. For it is a delivery of the actual seisin, that is of the actual possession, as for an estate of freehold, in fee, in tail, or for life; so that if the feoffor is himself lawfully seised to the full extent of the estate that he conveys, a freehold as of right will pass; and even if he is not lawfully seised, or not lawfully seised to that extent, a freehold will still pass, though a freehold by wrong (c). When by such means, a wrongful or tortious freehold is created, (a) Co. Litt. 52 b. (b) Litt. s. 59; Co. Litt. 9 a; 2 Bl. Com. 316. Blackstone enumerates "gift" as a separate conveyance; but as he himself remarks, "it differs in nothing from a feoffment, but in the nature of the estate passing by it." (c) Litt. s. 599, 611; Co. Litt. 367 a; Fermor's case, 3 Rep. 77; Taylor v. Horde, 1 Burr. 60; Co. Litt. by Butl. 330 b, n. (1); 2 Sand. Us. 18, 20; Doe v. Hall, 2 Dow. & Ry. 38; Doe v. Lynes, 3 Barn. & Cres. 388; Doe v. Taylor, 5 Barn. & Adol. 575. The doctrine in the text, though diminished in practical importance by the present rarity of feoffments, and by other causes, and though now involved (as appears by the above authorities) in some degree of obscurity, yet deserves attention from its tendency to illustrate the principles of the law of real property. It is to be observed, that independently of a feoffment, a tortious estate may be created by any act that produces a disseisin, or other wrongful ouster of the freehold. Co. Litt. 2 a. The nature of these wrongful acts will be explained in that part of the work which treats of civil injuries. Some notice was taken of disseisin, supra, p. 289. the effect is, that the person lawfully entitled to the freehold in possession is disseised; and if there are any persons in reversion or remainder, such reversion or remainder is displaced or divested, so that each of these parties ceases to retain (strictly speaking) an estate; though each nevertheless possesses a right of entry; that is, is entitled in proper turn, to enter, and eject the wrong-doer, and thus to revest his own estate (d). his II. A Grant is effected by mere deed without livery, containing words expressive of the intention to convey. The appropriate words are "dedi et concessi," "have given and granted." This is the regular method by the common law, of transferring estates in expectancy (e) (that is, reversions and remainders) in corporeal hereditaments, as feoffment is, of transferring a freehold estate in possession. And the same mode, viz. grant, is appropriate also to the transfer (for whatever estate) of hereditaments incorporeal (f) (such as advowsons, commons, rents, &c.), of which we are to treat hereafter. For it obviously results from the nature both of things incorporeal, and of corporeal things in expectancy, that no livery can be made of them; not of the first, because they are not capable of possession; nor of the last, because the possession is in the particular tenant, and not in the grantor. For which reason they are both said to lie in grant; while corporeal hereditaments in possession are said to lie in livery (g). (d) Co. Litt. 251 a, b; 327 b; l Saund. by Wms. 319, n. (1); Focus v. Salisbury, Hard. 401, 402. In the particular case, however, of a wrongful feoffment by tenant in tail in possession, the effect is different; for it is a discontinuance; which formerly deprived the reversioner or remainderman (as well as the issue in tail), even of his right of entry, and left him nothing but a right of action; Co. Lit. 327 b. But by a late statute, 3 & 4 Will. 4, c. 27, s. 39, a discontinu ance is no longer to be attended with this effect. A discontinuance, besides, involves (as we have seen) no forfeiture of the particular estate; but it is otherwise with a wrongful feoffment by tenant for life or years. Vide supra, p. 431. (e) Co. Litt. 172 a, 332 a, b. (f) Ibid. As to incorporeal hereditaments, vide supra, p. 159. (g) 2 Rep. 31b; Doe v. Cole, 7 Barn. & Cres. 243. And as the latter pass by force of the livery of seisin, so the former pass by force of the deed. By the ancient law, indeed, an additional ceremony was required where a reversion or remainder was the subject of transfer; viz. the attornment of the tenant of the particular estate to the grantee (h). But by the statute 4 & 5 Anne, c. 16, this requisite is now dispensed with, and the conveyance of such estates is therefore placed on precisely the same footing with that of incorporeal hereditaments. III. A Lease (i) (or demise) is a conveyance by which a man grants lands or tenements (k) (usually with the reservation of a rent) to another, for life, for years or at will, such estate being short of the lessor's own interest therein (1); for if it be to the full extent of that interest, it is then properly an assignment, and no lease (m). A lease of land for life, being a freehold interest, cannot be constituted by the common law, without livery of seisin, and therefore the lease must in such case be by way of feoffment (n); but if the estate be for years or at will, no livery is required (o); nor was a deed or even any writing formerly essential to the efficacy of a demise of (h) Litt. s. 568, 569. Doe v. Finch, 4 Barn. & Adol. 303. As to attornment, vide supra, p. 434, 436; Litt. s. 551; Co. Litt. 309 a; Gilb. Ten. 90, 91. (i) As to leases, vide Co. Litt. 43 b. (k) Litt. s. 58. A lease may be either of land in the possession of the lessor, or of land of which he has the reversion or remainder; for of the latter, he may grant a lease for years in futuro, to take effect in possession, when the reversion or remainder executes by the determination of the particular es. tate and he may grant the reversion itself for a term short of his own interest therein. But such grant must |