PURCHASES. to these presents have hereunto set and affixed Feoffment. Seisin taken by attorney. and appoint the said A. B. (or if two persons be named attornies, the said A. B. and C. D. jointly, and each of them severally and respectively), his true and lawful attorney [or attornies] for him and in his name and stead, into and upon the several messuages, lands, tenements, and hereditaments hereby granted and enfeoffed, or mentioned or intended so to be, or into any part thereof, in the name of the whole, to enter, and full, quiet, and peaceable possession, and seisin thereof for and in the name of him the said (vendor) to take and have, and such possession and seisin being so taken and had, the like possession and seisin thereof, or of any part thereof in the name of the whole, unto the said (purchaser) his heirs and assigns, or to his or their certain attorney or attornies lawfully appointed and authorized to receive the same, to give and deliver, according to the form and effect and the true intent and meaning of these presents. And he the said (vendor) doth hereby allow, ratify, and confirm, and promise and agree, at all times hereafter, to allow, ratify and confirm all and whatsoever his said attorney or attornies shall lawfully do in the premises by virtue hereof. Livery of seisin may likewise be made to an attorney for the purchaser, as well as by an attorney for the vendor, Co. Lit. 48. which may also be contained in the deed of feoffment, and may be thus: "And the said (purchaser) hath nominated, constituted and appointed, and by these presents doth nominate, constitute, and appoint the said C. D. (if a party to the deed, but if not, C. D. of, &c.) his true and lawful attorney, for him and in his name and stead, to receive and take of and from the said (vendor) or the said A. B. (the vendor's attorney) his attorney as aforesaid, full and sufficient seisin and possession of all and singular the lands and hereditaments by these presents granted and enfeoffed, or mentioned or intended so to be, with the appurtenances, or of any part or parcel thereof, in the name of the whole to take their respective hands and seals, the day and year PURCHASES. first above written (1). Sealed and delivered, &c. Feofment. Memorandum of livery of seisin (2) to be indorsed on the deed of feoffment. BE IT REMEMBERED, that on the day and year and have, and such seisin and possession being so taken and had, to hold and retain to and for the use of the said (purchaser) his heirs and assigns for ever, according to the purport and effect, and the true intent and meaning of these presents." Indorsement of livery aud seisin. a corporation, need not be made during the life of the feoffor. It has been observed in a preceding note that livery of seisin Livery by when made by attorney, must be effected during the life of the vendor, but this does not hold where the feoffment is made by a body corporate, as the death of the head or principal of a corporation will not vacate the attorney's authority, which is that of the aggregate body delegated by its common seal. (1) If the feoffment be a body corporate, the testatum will be, Corporation. "IN WITNESS whereof the said mayor, commonalty and citizens (or as the case may be) have hereunto put their common seal the day and year first above written." (2) If the feoffment be by a corporate body, delivery of the deed will not be necessary, see ante, No. XVI. p. 184. n. (27). Livery of seisin is essential to a feoffment, for unless it be given, the feoffment will pass only an estate at will, Co. Lit. 48. d.; but although no livery be made, yet if the feoffment be accompanied by a fine it will operate as a declaration of the uses of the fine, 1 Lord Raym. 291. 12 Mod. 165. Delivery of deed not neces sary by a corporation. And it is proper that the livery of seisin should be testified by Livery should an indorsement on the deed: but if it be not indorsed, the fact be indorsed. whether it were or were not made may be left to a jury, Hands v. James, 2 Com. 531. And where there has been long possession under a feoffment, the court will presume livery to have been made, Jackson v. Jackson, Fitzgib. 146. and equity will in some cases supply the want of livery, Burgh v. Francis, Fin. 28. 74. And in a late case livery of seisin was presumed after Feoffment. PURCHASES. first within written, peaceable and quiet possession, and full seisin of the messuages, lands, tenements, and hereditaments within mentioned to be granted and enfeoffed to the within named (purchaser) and his heirs, were openly had and taken by the within named (vendor) (1); and by him delivered to the said (purchaser) to the use of the said (purchaser) (2) and his heirs, according to the purport and true intent Seisin delivered by attorney. Seisin taken by attorney. Premises in lease. Feoffor must be in possession. Dower. twenty years possession, although not indorsed, Rees dem. Chamberlain . Hand, Wightw. 69. 123. (1) If seisin be delivered by attorney, say, "By the within named (attorney), and by him in the name of and for the said (vendor), delivered to the said (purchaser)." If the seisin be taken by attorney, say, "Delivered to the within named attorney in the name of and for the said (purchaser).” If the premises are in lease, add, "With the full assent of the tenant thereof, (testified by his signature to the memorandum of livery indorsed thereupon), but without prejudice to his interest therein." As a deed of feoffment transfers the possession to the feoffee, it is absolutely necessary that the feoffor should have possession at the time of making the livery, Dyer, 106. 131. Bettesworth's case, 3 Co. 31. If, therefore, the premises are on lease, the tenant is often required to relinquish his possession for the occasion, saving his own right to re-enter, ibid. 362. Shep. Touch. 202. but his assent to the livery seems to be sufficient. Vid. 2 Bla. Com. 307. n. 4. (2) If the feoffment be made to a purchaser and his trustee to prevent dower, say, "Unto the said (purchaser) and his heirs, to the uses, upon the trusts, and for the ends, intents, and purposes declared in and by and according, &c." as above. and meaning of the within written indenture, in purchases. the presence of us whose names are hereunto Feoffment. subscribed (1). several counties. (1) If the lands enfeoffed lie in several counties, and actual Lands lying in delivery of possession is to be given, as supposed in the above form (which is termed livery in deed), separate liveries must be made of the land lying in each county, Lit. s. 418. Perk. s. 226. 227. unless they are all comprised in one and the same manor, in which case livery in one of the counties will be sufficient, ib. after which the feoffee will be in the full possession of the land without any subsequent entry. It may be proper, how- Livery in view. ever, to remark that livery within view of the lands, without any actual delivery of possession (which is called a livery in law), may be made, and will be good if perfected by a subsequent entry by the feoffee; and in this case one livery of the whole land will be sufficient, although it lie in different counties; but the entry by the feoffee must be made during the joint lives of himself and of the feoffor, for if either of them die before entry, the livery made within view will be ineffectual, Co. Lit. 48. b. Parsons v. Pearce, Pollex. 45. but the marriage of a feme feoffor with the feoffee before his entry after livery by view will not, Parsons v. Petit, 2 Salk. 165. This form of livery must also be made by the feoffor himself in person and not by attorney, Aprice v. Rogers, 2 Dyer, 233. The former mode of livery is therefore always to be recommended when practicable; should, however, any circumstances render it necessary that the latter should be had recourse to, the form may be, in view. "I deliver you possession of yonder land, as described in Form of livery this indenture; go and enter into the same, and take possession of it accordingly:" see Pollexf. 43.-and see INTRODUCTION, Sec. II. day of And the memorandum of such livery may be, "Be it remembered, that on this livery within view of the lands comprised and described in the within written indenture, was given to, &c." as above. *** A feoffment when made for clearing disseisins, &c. should be accompanied by a fine to operate under the stat. of nonclaim, as to which see 4 Elem. Conv. 2d Ed. c. 1. and Sup. Tit. FEOFFMENT. PURCHASES. Copyholds. No. XVIII. Conveyance of Copyholds from a Vendor to a Purchaser by Surrender (1) and Deed of Covenants. Variations where the Surrender is made at or before, and where after executing the Deed. Where it is intended that the Lands, &c. should descend to the Purchaser's Heirs, free from the free bench of his Wife (2). Where the Vendor is entitled to a moiety or other undivided part only. Where in remainder or reversion. Where the sale is by private contract or by auction, &c. &c. Where the premises are in mortgage. And see the Variations subjoined to No. XVI. THIS INDENTURE, of two parts, made the day of [in the year of the Demesnes. Dower, or free bench, (1) It is unnecessary to observe, that it is only when copyholds are in the hands of tenants that a surrender is necessary to pass them. When the grant is of the manor, or of the demesnes of the manor, by the lord himself, the conveyance will be by lease and release, or other conveyance adapted to the passing of freehold inheritances, as they are free in his hands, and held by customary tenure by the tenants only. (2) As a wife is entitled to free bench of the copyhold lands |