of the reoffee became entitled to dower, and the husband to his curtesy, and a descent to the heir of the feoffee tolled Me entry of the disseisee. The tenant was expelled from his fee, and the feoffee usurped his feudal place and relation, and he became a good tenant to the præcipe of every demandant, though the true owner's right of entry upon him was not taken away. The uniform language of the books which treat of disseisins by feoffments, considers the feoffee as having an immediate estate of freehold, and as having acquired a seisin in fee as against strangers. The disseisin produced by a feoffment, meant, according to Mr. Butler and Mr. Preston, an actual disseisin, and not one at the election of the party; and the feoffee continued vested with the freehold until the disseisee, by entry, or action, regained his possession, and of that right of entry, or of action, he might be barred in process of time.

The character and effect of a feoffment and disseisin, according to the ancient and strict notion of them, were ably illustrated and supported by Mr. Knowler, in his argument in Taylor v. Horde. The doctrine of the court in that case, was somewhat different from the view which Mr. Butler has given of the operation of a feoffment. The opinion of Lord Mansfield has been much questioned by him, and others, who deny that the efficacy of the feoffment is lost; and they insist that it does still vest an actual estate of freehold by disseisin. According to Mr. Preston, whenever a person enters into land without title, and claims a fee, he is a disseisor, and acquires a seisin in fee. So, if a termor makes a feoffment, he gains a freehold by disseisin. The great struggle which commenced with Lord Mansfield, between the courts at Westminster, and the

a 1 Burr. Rep. 60. Mr. Preston says, that the argument of Mr. Knowler, and not the doctrine of Lord Mansfield, states the law most correctly.

b Preston on Abstracts, vol. ii. 390. 392.

adherents of the ancient consequences of a feoffment, is, that the latter are tenacious of holding the feoffment to its primitive operation, by which it passed a fee by wrong, as well as by right, and disseised the true owner; whilst the former are disposed to check, as much as possible, the application of the unreasonable and noxious qualities of the feoffment, and confine its operation within the bounds of truth and justice. The doctrine in Taylor v. Horde was, that if a tenant for life or years should make a feoffment, the lessor might still elect whether he would consider himself disseised; and that, except in the special instance of a fine with proclamations, there was no case in which the true owner might not elect to be deemed not disseised, provided his entry was not taken away. In Jerritt v. Weare, the Court of Exchequer were disposed to follow the spirit of the case of Taylor v. Horde, and disarm the doctrine of disseisin of much of its ancient severity, and formidable application. They adopted the doctrine in Blunden v. Baugh, that whether there was an actual disseisin or not, depended upon the character and intention of the act. A lease for years to a stranger, by a tenant at will rendering rent, was held, in the case from Croke, to be a disseisin only at the election of the owner; and, in the Exchequer case a lease by a stranger and entry under it by the lessee, was put upon the same ground. Every disseisin is a trespass, But every trespass is not a disseisin. A manifest intention to oust the real owner must clearly appear, in order to raise an act which may be only a trespass to the bad eminence of disseisin.

In Goodright v. Forester, the court censured and condemned the ancient doctrine of estates arising by disseisin, as they did also in Jerritt v. Weare. The opinion of Lord

a 3 Price's Ex. Rep. 575.

b Cro. C. 302.

c 1 Taunt. Rep. 578.

Mansfield received still more decided confirmation, by the unanimous decision of the K. B. in Doe v. Lynes." It was there held, that a feoffment did not operate to destroy a term for years, when made without the consent of those who had the term. Lord Tenterden declared, that there was so much good sense in the doctrine of Lord Mansfield, that he should be sorry to find any ground for saying it could not be supported. A feoffment by a stranger would be void, if there was a lessee for years in possession, who did not assent to it. To attempt to turn a term into a wrongful fee, with all its inequitable consequences, by the old exploded notion of the transcendent operation of a feoffment, was pointedly condemned. The nature of a feoffment and disseisin were said to be materially altered since Littleton wrote. The good sense and liberal views which dictated the decision in Taylor v. Horde, seem to have finally prevailed in Westminster Hall, notwithstanding the strong opposition which that case met with from the profession. The courts will no longer endure the old and exploded theory of disseisin. They now requiresomething more than mere feoffments and leases, to work, in every case, the absolute and perilous consequences of a disseisin in fact. Those acts are a disseisin only at the election of the real owner, and are not, in all cases, absolutely and inevitably so. It will depend upon the intention of the party, or it will require overt acts that leave no room to inquire about intention, and which amount to actual ouster in spite of the real owner. Mr. Preston, in his discussion of titles under seisin and disseisin, adheres to the strict doctrines of the old common law, and he severely condemns the judgment in Taylor v. Horde, as "confounding the principles of law, and producing a system of error." Mr. Butler, also, though more temperately, and

b

a 3 Barnw. & Cress. 388.

b Preston on Abstracts, vol. ii, 279–296.

more ably, attacks its conclusions, while he admits the case was decided with much consideration, and infinite ability. These writers serve, at least, to show the spirit of free inquiry, and of uncompromising hostility to innovation, which animates the English property lawyers, and inpels them to stand watchful and intrepid sentinels over the ancient jurisprudence. While we admire their independence and patriotism, we think that it would be deeply to be lamented, if we were obliged, at this day, to call inte practice the extravagant consequences of disseisin, after feudal tenures, and the assurance by feoffment itself, and the reasons which gave such tremendous effects to dis seisin, had all become lost, and buried in oblivion."

a I presume Mr. Preston to be the same counsel who argued the cause of Goodright v. Forester, in the Exchequer Chamber, in 1809. (1 Taunt. Rep. 578.) In that case, Sir James Mansfield, in delivering the judgment of the court, observed, that if the doctrine of es tates, arising by disseisin, was such as had been stated by Mr. Pres ton, he should lament that the law was such. “Our ancestors," he observed, "got into very odd notions on these subjects, and were induced, by particular cases, to make estates grow out of wrongful acts." It is presumed that Mr. Preston is also the same counsel who argued the cause of Jerrit v. Weare, before the Court of Exchequer, in 1817. (3 Price, 575.) In that case, Baron Graham, in delivering the opinion of the court, observed, that the principle of the decision in Taylor v. Horde rested on a foundation not to be shaken; and he spoke with even reprehensible harshness of the effort to revive the old doctrine of disseisin in its unmitigated force. Mr. Preston was not dismayed or diverted from his opinions by that decision; and he says, in the preface to his third volume on Abstracts of Title, that he has stated his propositions on disseisin, though that decision was before him, with the fullest conviction of their accuracy. It is presumed further, that Mr. Preston is the same person who, as counsel once more, brought up and enforced his tenacious opinions on the efficacy of feoffment working a disseisin, and creating a wrongful fee: and the K. B., in Doe v. Lynes, (3 Barnio. & Cress. 388.) very peremptorily rejected them. His views on this subject, as laid down in his treatises on property, may therefore be considered as essentially expelled from Westminster Hall.

In this country, the decision of Lord Mansfield has not met with entire approbation, and the late and learned Chief Justice Parsons declared, that his lordship had not gone to the bottom of the matter, and had puzzled himself unnecessarily. I cannot acquiesce in the accuracy of this censure, and it appears to me, that Lord Mansfield gave to a disseisin, founded on the operation of a feoffment, as much efficacy as it was entitled to receive, in this improved age of the English law."

The conveyance by feoffment, with livery of seisin, has long since become obsolete in England; and though it has been, in this country, a lawful mode of conveyance, it has not been used in practice. Our conveyances have been either under the statute of uses, or short deeds of conveyance, in the nature of the ancient feoffment, and made effectual, on being duly recorded, without the ceremony of livery. The New-York Revised Statutes have expressly abolished the mode of conveying lands by feoffment, with livery of seisin.

(2.) Of Grant.

incorn as a

servic

This a common law conveyance, and applied to hereditaments, such as reversions, rents, and and not being of a tangible nature, and existing only in contemplation of law, they could not be conveyed by livery of seisin. Such rights were said to lie in grant,

a It is to be regretted that the learned judge, who delivered the opinion in Prescott v. Nevers, (4 Mason's Rep. 326.) did not then find a proper occasion to investigate the subject of disseisin at large, upon which, he says, he had bestowed his researches at an early period of his professional life. There is no person living who would have done more complete justice to the subject; for that eminent judge never handles a question on any part of the science of law, without examining it in all its relations, with equal candour and freedom, and fervour and force, and leaving it completely exhausted.

b Vol. i. 738. sec. 136.