*479

general provisions of the French code on the subject; but it has omitted this inequality of regulation; and it likewise confines the recovery to the price, mesne profits, costs and special damages, (if any,) and beneficial improvements. Both the French and Louisianian codes make the seller pay even for the embellishments of luxury expended on the premises, if he sold in bad faith, knowing his title to be unsound. *The rule of the common law, and the one most prevalent in this country, appears to be moderate, just and safe. The French rule in the code is manifestly unjust. I cannot invent a case, said Lord Kames, a where the maxim cujus commodum ejus debet esse incommodum is more directly applicable. If the price at the time of the eviction be the standard for the buyer, it ought to be equally so for the seller. The hardship of the doctrine, that the seller must respond, in every case, for the value of the land at the time of eviction, and for useful improvements, consists in this, that no man could ever know the extent of his obligation. He could not venture to sell to a wealthy or enterprising purchaser, or in the vicinity of a growing town, without the chance of absolute ruin. The want of title, in cases of good faith, is a matter of mutual error; for the buyer investigates the title when he buys; and the English rule would appear to be the most practicable, certain and benign in its application.

The manner of assigning breaches on these various covenants, depends upon the character of the covenant. In the covenant of seisin, and in the covenant that the covenantor has good right to convey, it is sufficient to allege the breach by negativing the words of the covenant. But the covenants for quiet enjoyment and of general warranty require the assignment of a breach by a specific ouster or eviction by a

Principles of Equity, vol. i. 289.

Principles of Equity, vol. i. 288-302.

• It has been held in some of the states, that the covenant of seisin was satisfied if the grantor was seised in fact claiming a fee. Manton v. Hobbs, 2 Mass. Rep. 433. Twambly v. Hinkey, 4 ibid. 441. Prescott v. Trueman, ibid. 627. Willard v. Twitchell, 1 N. H. Rep. 177. But other decisions hold that there must be a legal seisin in fee to answer the covenant. Lockwood v. Sturdevant, 6 Conn. Rep. 305. Richardson v. Dorr, 5 Vermont Rep. 1; and these latter decisions contain, it is apprehended, the true rule of the common law.

paramount legal title. So, in the case of the covenant against incumbrances, the incumbrance must be specifically stated. These are some of the general and universally acknowledged rules that apply to the subject; and it has been held not to be necessary to allege an ouster or eviction, on a breach of a covenant against incumbrances, but only that it is a valid and subsisting incumbrance. A paramount title in a third person, or a public highway over the land, are held to be incumbrances within the meaning of the covenant;b though the existence *of such a public highway would not be *480 a breach of the covenant of seisin.c

(5.) Of the several species of conveyances.

Sir William Blackstoned divides conveyances into two kinds, viz., conveyances at common law, and conveyances which receive their force and efficacy from the statute of uses. The first class is again subdivided into original or primary, and derivative or secondary conveyances.

As some of those conveyances have grown obsolete, and as the principles which constitute and govern all of them have been already discussed, it will not be requisite to do more than take a cursory view of those which are the most

Norman v. Wells, 17 Wendell, 160.
Beddoe v. Wadsworth, 21 Wendell,

■ Kortz v. Carpenter, 5 Johns. Rep. 120. Mitchell v. Warner, 5 Conn. Rep. 497. 522. 120. But a judgment of eviction, or a decree divesting the grantee of his right, is sufficient to sustain the action upon the warranty, without showing an actual removal from the land. Hanson v. Buckner, 4 Dana's Ken. Rep. 254. (1)

Prescott v. Trueman, 4 Mass. Rep. 627. Kellogg v. Ingersoll, 2 ibid. 97. Prichard v. Atkinson, 3 N. H. Rep. 335.

• Whitbeck v. Cook, 15 Johns. Rep. 483. In a note to 10 Ohio Rep. pp. 317335, the editor, Mr. Wilcox, has given a condensed and accurate view of the ancient law of warranty, and of the modern covenants as a substitute. Mr. Sedgwick, in his very learned Treatise on the Measure of Damages, has laboriously and fully collected the decisions in the several states on the local rule of damages in actions for breach of real covenants, (ch. 6, pp. 150-204,) and to that treatise I must refer, for it would be quite foreign from this work to notice, analyze and criticise the numerous diverse decisions on the subject. I have noticed many of them as minutely as the plan of these Commentaries would permit.

d Com. vol. ii. 309.

(1) Fowler v. Polang, 6 Barb. S. C. Rep. 165.

in practice, and of the incidental learning connected with the subject.a

(1.) Of feoffment.

Feoffment was the mode of conveyance in the earliest periods of the common law. It signified, originally, the grant of a feud or fee; but it came, in time, to signify the grant of a free inheritance in fee, respect being had to the perpetuity of the estate granted, rather than to the feudal tenure. Nothing can be more concise and more perfect in its parts, than the ancient charter of feoffment. It resembles the short and plain forms now commonly used in the New-England states. The feoffment was likewise accompanied with actual delivery of possession of the land, termed livery of seisin. The notoriety and solemnity of the livery were well adapted to the simplicity of unlettered ages, by making known the change of owners, and preventing all obscurity and dispute concerning the title. The actual livery was performed by entry of the feoffor upon the land, with the charter of feoffment, and delivering a clod, turf or twig, or the latch of the door, in

the name of seisin of all the lands contained in the *481 deed. The ceremony was performed in the presence

of the peers or freeholders of the neighbourhood, who were the vassals of the feudal lord, and who might afterwards be called on to attest the certainty of the livery of seisin.b

The charter itself was not requisite. The fee was capable of being conveyed by mere livery in the presence of the vicinage. The livery was equivalent to the feudal investiture of the inheritance, for it created that seisin which became an inflexible doctrine of the common law. And if the feoffor was not able to enter upon the land, livery was made within

By the statute of 7 & 8 Vict. ch. 76, and of 8 & 9 Vict. ch. 106, freehold land may be conveyed simply by way of deed, without livery of seisin, or lease and release; and no partition, or assignment, or exchange of land or lease is valid, except by deed; but where there is an agreement for a lease, payment of rent will constitute a yearly tenancy; and contingent interests may be conveyed by deed. The last act above mentioned renders feoffments void in law, except in a special case, and they shall not have any tortious operation.

b Co. Litt. 48. a. 2 Blacks. Com. 315, 316.

view of it, with a direction to the feoffee to enter, and if the actual entry afterwards, in the time of the feoffor, took place, it was a good livery in law.a

The feoffment operated upon the possession without any regard to the estate or interest of the feoffor; and though he had no more than a naked, or even tortious possession, yet, if the feoffor had possession, the feoffment had the transcendant efficacy of passing a fee by reason of the livery, and of working an actual disseisin of the freehold. It cleared away all defeasible titles, divested estates, destroyed contingent remainders, extinguished powers, and barred the feoffor from all future right, and possibility of right, to the land, and vested an estate of freehold in the feoffee. In this respect the feoffment differed essentially from a fine or common recovery; for the conusor in the fine, and the tenant to the præcipe, must be seised of the freehold, or of an estate in fee, or for life, otherwise the fine or recovery may be avoided.c

The doctrine of disseisin forms a curious and instructive part of the old feudal law of tenures; and it has led, in modern times, to very extended and profound discussions. This branch of the work would probably appear to the *student to be left too incomplete, without taking some *482 notice of this ancient and vexatious learning. (1)

Seisin was the completion of the feudal investiture, by which the tenant was admitted into the feud, and performed the rites of homage and fealty. He then became actual tenant of the freehold. Disseisin, in fact, was the violent termination of this seisin, by the actual ouster of the feudal tenant, and the usurpation of his place and relation. It was

Litt. sec. 419. 421. Co. Litt. 48. b.

b Co. Litt. 9. a. 49. a. 367. a. Litt. 599. 611. 698. West Symb. sec. 251. Shep. Touch. 203, 204. Butler's notes, 285 and 317 to Co. Litt. lib. 3.

• The effect of a mere entry upon land, claiming to take possession as owner, is much diminished in the English law. By the statute of 3 and 4 Wm. IV. c. 27, no person is deemed to have been in possession of land by a bare entry, or by continual claim near it, so as to keep his right alive, unless there be an actual change of possession.

(1) As to what constitutes such disseisin as will defeat the deed of the proprietor, see Foxcroft v. Barnes, 29 Maine R. 128.

a notorious and tortious act on the part of the disseisor, by which he put himself in the place of the disseisee, and in the character of tenant of the freehold, made his appearance at the lord's court. A wrongful entry was not a disseisin, provided the rightful owner continued in possession; for it was a just and reasonable intendment of law, that when two persons were at the same time in possession, the seisin was adjudged to be in the rightful owner. It was the ouster or tortious expulsion of the true owner from the possession that produced the disseisin. There was a distinction between dispossession and disseisin, for disseisin was a wrong to the freehold, and made in defiance and contempt of the true owner. It was an open, exclusive, adverse entry and expulsion; whereas dispossession might be by right or by wrong; and it was necessary to look at the intention, in order to determine the character of the act. These general principles seem to be admitted in all the more modern authorities, on each side of the Atlantic, on this subject, whatever difference of opinion there may be in the application of them.b

There were two kinds of disseisin ; the one was a disseisin in fact, and the other a disseisin by construction of *483 *law. The latter could be created in many ways, without forcible and violent ouster; as by feoffment with livery, by entry under an adverse lease, or by a common recovery, or by levying a fine. Whether the disseisin was effected by actual expulsion or by a constructive ouster, the legal consequences upon the title were the same. But the doctrine of disseisin by election, depending upon the pleasure of the true and injured owner, and whether, for the sake of

Litt. sec. 701.

b Litt. sec. 279. Holt, Ch. J., Anon. 1 Salk. Rep. 246. Taylor v. Horde, 1 Burr. Rep. 60. Cowp. Rep. 689. S. C. William v. Thomas, 12 East's Rep. 141. Jerritt v. Weare, 3 Price's Fx. Rep. 575. Smith v. Burtis, 6 Johns. Rep. 147. Proprietors of Kennebec Purchase v. Springer, 4 Mass. Rep. 416. Proprietors v. Laboree, 2 Greenleaf's Rep. 283. Varick v. Jackson, 2 Wendell's Rep. 166. Prescott v. Nevers, 4 Mason's Rep. 326.

• If one tenant in common enters under a recorded deed upon land, claiming the entirety in fee, and exercises notorious and avowed acts of exclusive ownership, such acts of ownership amount to a disseisin of his co-tenants. Prescott v. Nevers, 4 Mason's Rep. 326. Clapp v. Bromagham, 9 Cowen, 530. Parker v. Proprietors, &c., 3 Metcalf, 91.