obligation. The words of the act of 1584, with a reasonable number of witnesses, are, in practice, understood of two, which is deemed a sufficient number for every deed that can be executed by one notary. This enactment of the statute of 1584 relating to seisins, has been, from the parity of reason, extended by custom to instruments of resignation. That clause of the act of 1681, c. 5, which requires witnesses to subscribe their attestations, and their names and designations to be inserted in the body of the deed, expressly comprehends instruments of seisin, of resignation ad remanentiam, of intimation of assignations, translations and retrocessions. (a)

By the act of 1686, c. 17, seisins are allowed to be written book wise, provided the notary and witnesses sign each leaf, and the notary mentions in his attestation the number of leaves of which the seisin consisted. (b)

The acts of 1579, 1593, and 1681, expressly declare that all deeds which are destitute of the solemnities thereby required, shall bear no faith in judgment; or that they shall be null, and not suppliable by any condescendence. They cannot, therefore, produce an action against the grantor, or be pleaded as evidence before any court to his prejudice. It has been decided, that they cannot be supported, even by the most pregnant proof that could be offered in their favour, (c) nor even by referring the verity of the subscription and the subsistence of the debt, to the oath of the grantor's representative. (d) But by other decisions, a condescendence has been admitted for supplying the defect of

(a) Bishop of Aberdeen, Dict. p. 3011. Ersk. b. 3, tit. 2, § 15. (b) Lindsay Carnegie, Act of Sederunt, Jan. 17th, 1765. Fac. Coll. 1, 2, Clark v. Wardel, Feb. 7th, 1752, Dict. p. 14,333, and App. voce Sasine, n. 1. Kirkham, May 2nd. 1822, S. and B. Ersk. ib. note 50.

(c) Fount. Nov. 21st, 1704, Kirkpatrick,

1738, Low, Dict. p. 16,899.

Dict. p. 12,061.

Jan. 26th,

(d) Forbes, Jan. 4th, 1710, Logie, Dict. p. 17,026. Smith, &c. Jan. 25th, 1821, Fac. Coll.

the deed, not only where the witnesses to a party's subscription have not been designated; but even where the writer's name and designation were omitted, though that is declared a nullity in the most express words by the act of 1593. (a)

SECTION III.

CONVEYANCES OF ESTATES AND INTERESTS IN PROPERTY ACCORDING TO THE LAW OF ENGLAND.

Conveyances deriving their effect from the common law and statute of uses. -Livery of seisin.-Feoffment, what the subject of.-How it takes effect. -Grant.-Gift.- Lease.-Exchange. - Release, different species of.Confirmation.-Surrender.-Assignment. - Defeasance. -Covenant to stand seised.—Bargain and sale.-Lease and release.

THE complicated and verbose instruments, by which the transfer of real property is effected by the law of England, presents a striking contrast to the simple and concise forms adopted by the civil law, and the codes of Spain and France.

They have been distinguished as conveyances by force of the common law, and as conveyances under the statute of uses.

It was a rule of the common law that land could only pass by delivery of the possession, or seisin, as it is technically called. This was accompanied by a feoffment, of which the livery of seisin was the essential part, the

(a) Stair, Dec. 5th, 1665, Cunningham, Dict. p. 17,019. Dirl. 343, Feb. 22nd, 1676, Ogilvie against Buckie, Dict. p. 16,860. Fount. Feb. 2nd, 1710, Maxwell, Dict. p. 17,027. Erskine, b. 3, tit. 2,

tenant for life accepting it on behalf both of himself and those in remainder, while the deed only authenticated the transaction. (a)

A feoffment is defined to be, a conveyance of corporeal hereditaments from one person or body corporate to another by delivery of possession, which may be either upon or in view of the hereditaments conveyed. (b)

It is essential to its completion that the seisin be passed. (c) It can only be adopted, therefore, in cases where the seisin may be and is to be conveyed; as in the transfer of estates of freehold in possession. (d) Hence, if a stranger make a feoffment against the will of the person who has the possession, the feoffment will be void, for the possession of a tenant for years, or even at will, continues the seisin of the freeholder. But with the consent of the person in possession, a feoffment may be made although that person retains the possession, except that, if tenant for life be in possession, the remainder-man or reversioner cannot make livery even with his consent while he retains the possession, since livery, if effectual, would be a disseisin.

Chattel interests in land cannot be conveyed, (e) though they may be created, by feoffment, as a feoffment may be made to A. for years with remainders over, and in that case the livery must be to the termor. (f)

The ceremony of giving the feoffee seisin of the lands is called livery of seisin. Formerly, livery of seisin would have conveyed the lands without any deed, but now a deed is required by the statute of frauds. (g)

The inconvenience of giving livery when the feoffor resides at a distance may be prevented by executing a

(a) Humphreys on Real Prop. p. 10.

(b) Co. Litt. 49, a. Com. Dig. Feoffment.

(c) 2 Bl. Comm. 310. Sheph. 203. Co. Litt. 271, b. n. 1.

(d) Co. Litt. 9, 49, a. Buckler's case, 2 Rep. 56. 2 Sand. Us. 4. Gilb. Ten. by Watk. n. 29.

(e) Read and Morpeth v. Errington, Cro. Eliz. 322.

(f) Litt. § 60. Co. Litt. 49, a.

(g) 29 Car. 2, c. 3.

power of attorney, unless he is an infant. The latter cannot appoint an attorney to make livery. Aggregate corporations must always make attornies under their common seal as well to deliver, as to receive, seisin.

The livery of seisin, it is said, will correct the charter of feoffment, as where the feoffment is in fee, and the livery for life, the feoffee is entitled for life only. (a) Livery of seisin, though not indorsed on the deed, is presumed after a long possession, (as for twenty years,) consistent with the feoffment. (b) Equity will supply even the want of livery of seisin, where there has been a sufficient consideration. (c)

The ceremony of delivering possession is by delivering the key of the door or a piece of the soil to the feoffee in the presence of any number of witnesses, saying to the following purport, "I hereby deliver unto the feoffee named in this indenture the hereditaments therein comprised to the use of him and his heirs, or to, for, and upon the uses, trusts, intents, and purposes in this indenture expressed, in pursuance and according to the true intent of the same indenture." A memorandum of this livery of seisin is then indorsed on the deed, and signed by at least two of the witnesses present at the livery. (d)

In conveyances by corporations, conveyances of gavelkind lands, and in other special cases, it is the most proper, if not the only effectual, means of transfer. Though feoffments are termed common law conveyances, yet limitations under them may operate under the statute of uses. So far as they convey the land to, or to the use of, the feoffee, they operate merely as common law conveyances; but when the use is declared to a third

(a) Co. Litt. 222, b.

(b) Jackson v. Jackson, Fitzg. 146. 1 Vern. 196. Rees d. Chamberlain v. Lloyd, Wightw. 123. Doe d. Wilkins v. Cleveland, 9 Barn. and Cress. 864.

(c) Thompson v. Atfield, 1 Vern. 40. Fitzg. 147. Finch, 28. Com. Dig. Feoffment, B. 4 Cru. Dig. 52.

(d) See 2 Wilde's Supp. 499.

person, then by the operation of the statute the possession, previously transferred to the feoffee by the operation of these conveyances at common law, is divested from him, and vested in the cestuique use by the statute. (a)

An estate created by feoffment cannot be made to commence in futuro, unless by way of remainder. (b)

No precise words are requisite to a feoffment, (c) as if a man by deed bargains and sells land to A. and his heirs, and livery be made, it is a feoffment.

An assurance for the transfer of reversions, remainders, or equitable interests, (d) in the form and with the ceremonies of a feoffment, will operate as a grant. (e)

A feoffment may also enure as a surrender, as where a tenant for life made a feoffment with warranty, to him next in remainder for life, it was a surrender, and not a forfeiture. (f)

A clause of warranty is usually added to a feoffment, but it is preferable to insert a covenant by the feoffor "for himself, his heirs, executors, and administrators," as the warranty only binds the heirs having assets. (g)

A grant is the conveyance of things not in possession, as reversions and remainders, and incorporeal hereditaments, as rents, advowsons, &c., of which no livery can be given. The term grant is generally applied to conveyances by feoffment, fine, recovery, lease and release, bargain and sale, and covenant to stand seised. But the simple grant at common law is complete without any of the ceremonies peculiar to the above conveyances. It does not require enrolment, nor a prior lease for years, nor the consideration necessary to establish a covenant

(a) Co. Litt. 272 a, n. by Butl.

(b) 4 Cru. Dig. 52. Litt. § 60. Norris v. Trist, 2 Mod. 78. Freeman v. West, 2 Wils. 166.

(c) 2 Roll. Abr. 2.

(e) Watk. by Prest. 162.

(d) 1 Prest. Abs. 296.

(f) Bredon's case, 1 Rep. 77. Co. Litt. 41, b. 42, a.

(g) 2 Bl. Comm. 300. Gilb. Ten. 133, and n. 54, by Watk.