One of these maxims was, that the tenancy should always be full; in other words, that there should always be a tenant or succession of tenants to do the lord's services; and hence land could not be granted to vest at a future day. It was frequently granted to one for life, with remainder to another in fee. In this case, the immediate tenant, being seised of the freehold, was intrusted with the protection of the possession. If he failed in his duty, his estate was forfeited to the lord. But, though the freehold could never be in abeyance, yet the reversion or remainder in fee might be; as, if an estate were granted to A. for life, with remainder to the right heirs of B. during the life of B., the remainder in fee was necessarily in abeyance, because nemo est hæres viventis. The abeyance, however, of the inheritance was never favoured by the law, because even in that case many important operations were suspended. For example, the tenant in possession, though a mere tenant for life, was rendered dispunishable of waste, since the writ of waste could only be brought by the party entitled to the inheritance. Feoffment. It was another maxim flowing out of the system of tenures, that land could only pass by an actual delivery of the possession, or livery of seisin, as it was technically called; and upon this consideration is founded the conveyance by feoffment, which is, in fact, nothing more than a public delivery of the possession, or, to adopt the language of the common law, a livery of seisin of the land to the person to whom it is intended to be conveyed. This assurance was complete at common law without writing, though a writing, called a charter of feoffment, in the form of a deed, was frequently superadded, for the purpose of having a permanent record of the transaction, and evidencing more certainly the terms upon which it was made. By the livery of seisin the freehold passed of necessity, but not the inheritance, unless livery was made to the feoffee "and his heirs"--primâ facie also it passed an immediate estate of freehold, but in point of fact the feoffment made with the consent of the tenant might be designed to operate upon the remainder or reversion expectant upon an estate for years-or finally, the feoffment might be made upon condition, or to uses, or upon confidence that the feoffee would permit the estate to be enjoyed as the feoffor should direct by his will. It is obvious, therefore, that, except in the very simplest transactions, some writing would be very convenient for the purpose of explaining the intention and objects of the parties, though it did not become legally necessary till made so by the statute of frauds: but, even at the present day, the livery is the operative part of the assurance, the charter or deed of feoffment merely an incident. And hence the circumstance of livery having been made is always indorsed upon the deed, and stated upon the abstract, where such an assurance occurs in the deduction of the title. Fine and recovery.]-Besides this mode of conveying land, there were two others, which no longer exist, founded upon a feigned action at law concerning the land, namely-Fine and Recovery. The former of these assurances was in the form of a suit commenced by the party to whom the lands were designed to be transferred, against the persons in whom they were then vested, in the Court of Common Pleas, or other court of competent jurisdiction; and the intended transfer was effected by a compromise or agreement to put an end to the suit, either upon an acknowledgment by the defendant of the plaintiff's prior title, or by making a compromise by means of present grant*. This Where the acknowledgment of the plaintiff's prior title is founded upon a former gift, the fine is said to be a fine sur cognizance de droit come ceo qu'il a de son done; and this done or gift, here assumed, where the subject is lands in possession, is understood to be a feoffment in fee, made at some former time by the defendant, of which the fine is to be conclusive evidence; and hence this species of fine is said to be a "feoffment of record." When the fine proceeded upon an acknowledgment of a former right, without grounding it upon a gift, it is then said to be a fine "sur cognizance de droit tantum;" and hence this species of fine was the most proper to be used when the estate to be conveyed was in remainder or in reversion, of which generally there could have been no feoffment. The third species of fines, being founded upon an agree ment to make a present grant, was called a fine "sur concessit," and was originally adopted when the design was to create an estate for life or for years, although it might be used to convey the fee-simple. To perfect the fine in these two last cases, it was necessary to sue out a writ of possession, and hence they soon fell into desuetude, and the first species of fine was universally resorted to, because, being founded upon the acknowledgment of title by virtue of a feoffment, a writ of possession was unnecessary. It will be observed, therefore, that, in every case, a fine either implied a previous feoffment, or livery of seisin was necessary to its completion. A fine was only resorted to when certain special objects were to be accomplished, the principal of which were, to pass the estates of married women, to extinguish their title to dower, to agreement was made with the consent of the judges, and enrolled. The latter, namely, a common recovery, was a judgment by default in a court of competent jurisdiction in a real action, brought by the intended grantee against the tenant in tail. To carry this judgment into effect, a writ of fieri facias seisinam was sued out, directed to the sheriff, to put the plaintiff into possession: this writ was never executed, but with the other proceedings was recorded as having been executed, which was considered as coming to the same thing; and hence the plaintiff or intended grantee, commonly called the recoveror, became seised of the tenements by a process which amounted in substance to an actual livery of seisin. The livery passed a fee, whether by right or wrong*, since acquire a title by non-claim, and to bar the entail vested in the person levying it. From the difference in the mode of assurance applicable respectively to corporeal and incorporeal hereditaments, there grew up at an early period a recognised difference as to their operation, founded on reasons connected with the feudal policy, but which have long ceased to be understood; though it may reasonably be questioned whether they could ever have been intelligible on any but arbitrary rules or maxims. A feoffment, as has been shewn, operated by delivery of the possession; and its operation was such, that it of necessity passed the freehold or inheritance, according to the terms in which the livery was made, whether the feoffor had or had not the freehold and inheritance in him; nay, however slender or tortious his estate or possession might be. A grant, on the other hand, operating only on the right of the grantor, did not pass more than he legally had a right to, however extensive might be the terms of the deed. If he had an estate for life or years only, no more than an estate for life or years would Fines and re pass, although his grant purported to This tortious operation of feoffments, a doctrine now little favoured, and which perhaps for all practical purposes may be regarded as being exploded, has been, in modern times, the subject of much discussion. In Taylor v. Horde, (1 Burr. 60; 5 Bro. P. C. whoever had the possession was competent to deliver it. The same effect was attributed to a fine, that species of assurance being 247; Cowp. 689), a tenant in tail in remainder expectant upon the estate for life of a jointress, brought an ejectment against her, and obtained a verdict, judgment, and writ of execution in his favour; and afterwards, being in possession accordingly, made a tenant to the præcipe by feoffment, and suffered a recovery. After this recovery the jointress, by a new ejectment, was restored to her estate; and the question which ultimately arose was this, Whether there was a good tenant to the præcipe? in other words, whether he was actually seised of the freehold? And the court being of opinion that the possession acquired under the first ejectment did not amount to a seisin of the freehold, it then turned upon this point, Whether such seisin was acquired and conferred by the feoffment? This was the main question, and was argued repeatedly during the course of several years: all the learning on the subject was brought to bear upon it, and Lord Mansfield finally determined that the freehold was not acquired by the feoffment. The soundness of this decision is the subject of a very elaborate argument by the late Mr. Butler, in a note to Co. Litt. 3308. On an extensive survey of the authorities he arrives at the following conclusions:-"1st, That, as feoffments have not been made, from the reign of Hen. 2 to the present time, with any other solemnities than those with which they are made at present, every operation and efficacy which has been constantly and uniformly ascribed to them by the courts of judicature or writers of authority contemporary with or subsequent to that monarch's reign, down to the present time, ought, notwithstanding the objection that they are not now made with some of the solemnities with which they are said to have been made in their earliest institution, to be allowed and ascribed to them now; 2ndly, That, by the passage cited from Bracton and the other authoriries cited or referred to in the course of this note, it appears that the disseisin produced by feoffment must be understood to be an actual disseisin, and not a disseisin at the election of the party; 3rdly, That in many of these authorities it is most expressly mentioned, and that in all of them it must be implied, that, however slender, bare, or tortious the possession of the feoffee is, his feoffment necessarily and unavoidably vests the freehold in the feoffee, till the disseisee by entry or action restores the possession; 4thly, that copyholders, tenants for years, by elegit, statute merchant, statute staple, at will, or by sufferance, are all considered to have the possession of the estate, and that they may by feoffment vest an actual estate of freehold in the feoffee; 5thly, That a fine may be levied of, or a common recovery suffered upon, this estate of freehold; 6thly, That the feoffment so executed, the fine so levied, and the recovery so suffered, are immediately good against every person except the rightful owner; 7thly, That in process of time they become good against the owner himself;" and arrives at a conclusion unfavourable to the legal soundness of Lord Mansfield's decision. In Doe v. Lynes, (3 Barn. & Cress. 388), the subject of the operation of feoffments was again much considered; founded upon the acknowledgment of a previous or present feoffment, and to a recovery, implying an actual delivery of the seisin. The result was, 1st, that an immediate interest in land could only be transferred on the spot, or by a judicial acknowledgment; 2ndly, that all in reversion took through the medium of the delivery of seisin to the first tenant; and, 3rdly, that this tenant, being entrusted with the seisin, was competent, by the same mode of feoffment or fine, to transfer it, not merely to the extent of his own rightful estate, but absolutely, to another. Such an act was indeed a forfeiture of his own estate; and, if the grantee in remainder was in existence, and his estate vested, he could enter for the forfeiture. If there was no such grantee, then, from the imaginary ouster or divestment of the seisin on which the limitations depended, and the want of an existing right of entry to restore it, the contingent remainders were destroyed. The grantor, indeed, or his heir, might re-enter, the seisin under the grant being at an end; but, if the latter colluded with the tenant in possession, the whole estate might be defeated, and a new estate acquired by wrong with impunity. After uses were converted into legal estates by the statute of uses, the effect of this inconvenience was prevented in settlements to uses embracing provisions for unborn children, by limiting to trustees an estate commensurate with that of the immediate tenant for life for preserving these remainders, with a right of entry for the trustee. Grant.]-Incorporeal hereditaments, on the other hand, being in their nature incapable of actual possession, could not be transferred by livery. The owner could only transfer his right to them, of which there could be no other evidence than a written instrument to that effect; and this the common law required to be sealed and delivered, as affording the most solemn evidence of purpose that the nature of the transaction admitted. In other words, incorporeal hereditaments can be conveyed only by deed, and, to and in Mr. Preston's argument will be found much curious and important learning concerning this subject. The case turned upon an attempt by a termor to acquire the fee by feoffment: in the result, however, nothing was determined as to the effect of a feoffment, which in this case was clearly inoperative, having been made without the consent of the persons in whom at the time the term was vested. For more on this subject see Reynolds v. Jones, 2 Sim. & Stu. 206; Jerritt v. Weare, 3 Pri. 575; Doe v. Moody, 3 Barn. & Cress. 399, n. (b); 2 San. 14; Doe v. Forrester, 8 East, 552. |