18 H. 8.3. 11 H.7. 19. (1 Sid. 162.)

Diversity herein in the Fifthly, all this is to be understood of sole persons, or case of a corporation of a corporation or body consisting of one sole person, aggregate; or a bishop, parson, &c. But it holdeth not in a corporation aggregate of many persons capable (32). And therefore if a mayor and commonalty make a charter of feoffment, and a letter of attorney to deliver seisin, the livery of seisin is good after the decease of the mayor, because the corporation never dieth (33). The like of a dean and chapter, et sic de similibus.

or as to a license to alien.

(346)*

4 Co. 119 b. Cro.

Jac. 103. 6 Co. 38.)

Mich. 3 Ja. in Com.

Banc, F. N. B. 223.
2 E. 3. Offi. de Court.

29. Stamf. Præer. 30,
(1 Rol. Abr. 331,
332.)

Letter of attorney may

Lastly, if the lessor by his deed license the lessee for life *or years (which is restrained by condition not to alien without license) to alien, and the lessor dieth before the lessee doth alien, yet is his death no countermand of the license, but that he may alien, for the license exempteth the lessee out of the penalty of the condition, and it was executed on the part of the lessor as much as might be. And so was it resolved, Mich. 3 Jacob in Communi Banco. As if the king doth license to alien in mortmain, and dieth, the license may be execu'ted after (34)(Q).

And it is to be known, that a deed of feoffment beginbe contained in a deed ning Omnibus Christi fidelibus, &c. or Sciant præsentes poll; et futuri, &c. or the like, a letter of attorney may be contained in such a deed; for one continent may contain divers deeds to several persons; but if it be by inden

(Q) That, under a covenant not to alien without leave, if leave is once granted, the covenant is entirely discharged; whether the license to assign be general (Dumper's case, 4 Co. 119), or particular, as to one particular person subject to the performance of the covenants in the original lease, See Brummell v. Macpherson, 14 Ves. 173. Ante, p. 29, 30. n. (T). [Ed.]

ture between the feoffor on the one part, and the feoffee

on the other part (*), there a letter of attorney in such or in an indenture, the a deed is not good, unless the attorney be made a party party.

in the deed indented (35).

attorney being made a

(*) Communis error fecit jus (ut dicitur)

in contrarium. (2 Inst. 673. 2 Rol. Abr. 8. Cro. Eliz. 905.)

48 b.

38 E. 3. 11, 38 Ass. p. 2. 43 Ass. p. 20.

offments. Br. 70.

A livery in law is, when the feoffor saith to the feoffee, being in the view of the house or land, (I give you yon- Lavery in law defined. der land to you and your heirs, and go enter into the same, and take possession thereof accordingly (R)), and Temps H 8. tit. Fethe feoffee doth accordingly in the life of the feoffor enter, 18 E. 3. 16 b 28 H. v. this is a good feoffment, for signatio pro traditione ha-F 18. 9 E. 4. 39. per betur(36). And herewith agreeth Bracton: Item dici Moyle. Bract. lib. 2. poterit et assignari, quando res vendita vel donata sit fol. 225 a. (1 Co. 156. Post, 253 a.) in conspectu, quam venditor et donator dicit se tradere: and in another place he saith, in seisina per effectum et per aspectum. But if either feoffor or the foffee die before entry the livery is void (37).

66

(35) Adjudged contra between Dicker and Noland." Hal. MSS. See also another case contra in Cro. Eliz. 905. The case cited by Lord Hale is in 2 Rol. Abr. 8. pl. 12. [Hargr. n. 4. 52 b.]

[See also Sheph. Touch. 217. where it is said that the authority may be either in the deed of feoffment itself, whether it be poll or indented, and although the attorney be not a party to it, or else by a separate deed. Et vid. 2 Rol. Abr. 8, 9. 2 Prest. Conv. 418. The appointment is most usually made by the deed of feoffment but the distinction mentioned by Lord Coke is not attended to in practice.]-[Ed.] (36) Nota the case of 38 Ass. 2. A. makes feoffment to B. within the view, and afterwards marries her, and afterwards claims to the use of the wife; it is a good execution of the livery. 38 E. 3. 11. Vid. 42 E. 3. Feoffments 54. Livery good, though the land is not

cap. 18. & lib. 4.

(347)

And livery death of the feoffor or Is revocable by the feoffee before entry.

within view." Hal. MSS.—[Hargr.
n. 4. 43 b. (315.)]

[So, where there were two joint
tenants in fee, and one of them
made livery within the view, viz.
go enter and take possession; but
before it was executed she married
the feoffee himself; it was argued
that this feoffment was void, be-
cause there was no actual entry
pursuant to the livery, and that by
the subsequent marriage the feoffee
was seised in right of his wife, and
could not by his entry work any
prejudice to her right; but it was
adjudged that he might enter at
any time, for he nad not only an
authority so to do, but an interest
passed by the livery in view, by
which act the woman did all which
was in her power to do. Parsons
v. Petit, 3 Salk. 165.]-[Ed.]

(37) "1 Rep. Rector of Cheddington's case. Hal. MSS.-(Hargr. n. 5. 48 b.]

(R) Livery within view, or livery in law, seems to have been made at first only at the court barons, which were anciently held sub dio in some open part of the manor, from whence a general view might be taken of

Livery within the view within the view is good where there is no deed of feoff is good, though the (n) And such a livery is good, albeit the land

land lie in another

not enter, a claim is

sufficient.
(0) 38 Ass. p. 23.

ment.

lie in another county.

Where the feoffee dares (0) A man maketh a charter of feoffment and delivers seisin within the view, the feoffee dares not enter for fear of death, but claims the same, this shall vest the freehold and inheritance in him, albeit by the livery no estate passed to him, neither in deed nor in law, so as such a claim shall serve, as well to vest a new estate and right in the feoffees, as in the common case to revest an ancient estate and right in the disseisee, &c. as shall be said hereafter more at large in the Chapter of Continual Claim. And so note a livery in law shall be perfected and executed by an entry in law.

LITTLETON.

22 H 6. 1. 10 E. 4. 1. 18 E, 4. 13.

IF a man letteth lands or tenements by deed or [Sect. 60. 49. a.] without deed (s) (38), (for seeing that the remainders Livery of seisin necessary to pass a freehold take effect by livery, there needs no deed (39), for term interest in remainder. of years, the remainder over to another for life, or in [COKE, 49 a.] tail, or in fee; in this case it behoveth, that the lessor maketh livery of seisin to the lessee for years, otherwise nothing passeth to them in the remainder, although that the lessee enter into the tenements. And if the termor in this case entereth before any livery of *seisin made to him, then is the freehold, and also the reversion, in the lessor. But if he maketh livery of seisin to the lessee, then is the freehold together tail, or in fee, Itvery with the fee to them in the remainder, according to the form of the grant and the will of the lessor(T).

(348)*

On lease for years, remainder for life, in

must be made to the ressee.

(38) Un pur, L. and M.

(39) "12 H. 4. 20." Hal. MSS. [Hargr. n. 8. 49 a.}

the whole manor; and the pares curia could easily distinguish that part of the land which was to be transferred. But this sort of livery is not perfect to pass the freehold, till an actual entry is made by the feoffee; because the possession is not delivered to him, but only a license or power is given to him by the feoffor to take possession. Infra, 48 b. Pollexf. 47. Ventr. 186. [Ed.]

(S) See n. (E) supra, p. 337.-[Ed.]

(T) But, though, as appears from this case, an estate may be created

"Maketh livery of seisin to the lessee." This livery is not necessary in this case for the lessee himself, because he hath but a term for years, but it is for the benefit of them in the remainder, so as the livery to the lessee shall enure for the benefit of them in the remainder : for the livery of the possession could not be made to the next in remainder, because the possession belonged to the lessee for years; and for that the particular term and all the remainders made in law but one estate, and take effect at one time, therefore the livery is to be made to the lessee.

49 a.

*49 b.

(Ante, 143 a.)

lessees, in the name of

But if a lease for years without deed (u) be made to Livery to one of two A. and B., the remainder to C. in fee, and livery is both, is sufficient, made to A. in the absence of B. in the name of both; it (5 Co. 94 b.) seemeth the livery is good to vest the remainder: and there is a diversity between two joint attornies to re- secus as to livery to ceive livery for another, and livery and seisin is made to one of two joint attorone of them in the name of both, this is clearly void, because they had but a mere and bare authority (40), and they both do in law make but one attorney, unless the warrant be jointly and severally (41), but the lessee for years hath an interest in the land (w).

(40) See further as to the difference between a naked authority and an authority coupled with an interest, ant. 52 b. p. 343. 113 a

vol. 1. p. 398, 399. and 181 b. vol.
1. p. 738.-[Hargr. n. 1. 49 b.]
(41) See ant. 52 b. p. 343. n. (26).

nies.

by feoffment to commence in futuro, by way of remainder, it has long
been an established principle, that a feoffment cannot be made to com-
mence in futuro; and therefore if a person m kes a feoffment to commence
on a future day, and delivers seisin immediately, the livery will be void,
and nothing more than an estate at will passes to the feoffee. Ante, 217 a.
p. 12-14. This doctrine is founded on two reasons, 1st. Because the
object and design of the ceremony of livery of seisin would fail, if it were
allowed to pass an estate to commence in futuro: as it would in that case
be no evidence of the change of possession. 2d. The freehold would be in
abeyance, which is never allowed where it can, by any means, be avoid-
ed. 5 Co. 946. Cro. Eliz. 454. 2 Vent. 204. 2 Wils. 166.-[Ed.]
(U) See supra, p. 337. n. (E).-[Ed.]

(W) And the law intends that there is such a mutual trust between those that take a joint estate, that the act of either of them is effectual for himself and the other, especially where it is not prejudicial to him. Hawk, Abr. 84.-{Ed.]

(349)*

Livery to one of two feoffees, is void as to

deed.

10 E. 4. 1. 12 E. 4. 16.

*Again, if A. is to make a feoffment to B. and C., and their heirs, without deed, and A. makes livery to B. in

the absentee, unless by the absence of C. in the name of both, and to their heirs ; this livery is void to C., because a man being absent 15 E. 4. 18. 22 E.4. 35. cannot take a freehold by a livery, but by his attorney 40 E. 3. 10. 41. (42) being lawfully authorized to receive livery by deed (x), ments 72. 6 H. 4. 2b, unless the feoffment be made by deed, and then the livery (Post, 359 a.) (Ante, to one in the name of both is good (43).

Temps H. 8. Feoff

Litt. 153. 3. H. 7. 13.

36 a. 9 Co. 137.)

Livery within view to lessee for years, is void to pass a remainder.

Lavery must be made

unless he enters for the purpose of receiving livery

(p) Braeton, lib 1.

A man makes a lease for years to A., the remainder to B. in fee, and makes livery to A. within the view; this livery is void, for no man can take by force of a livery within the view, but he that taketh the freehold himself.

"And if the termor in this case entereth before any before the lessee enters; livery made, &c." By the entry of the lessee he is in (Mo. 14.) actual possession, and then the livery cannot be made to him that is in possession, for quod semel meum est, amplius meum esse non potest. But if the lessor and lessee come upon the ground, of purpose for the lessor to make, and for the lessee to take livery, there his entry vests no actual possession in him until livery be made; for (p) affectio tua nomen imponit operi tuo (44). And therefore if it be agreed between the disseisor and disseisee, that the disseisee shall release all his right to the disseisor upon the land, and accordingly the disseisee entereth into the land, and delivereth the release to the disseisor upon the land, this is a good release; and the entry of the disseisee, being for this purpose, did not avoid the disseisin, for his intent in this case did guide

(X) Except where a man takes a freehold by way of remainder, by livery made to another, in his absence, as in the above case of a lease for years with remainder in fee. Supra, 49 a.--[Ed.