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Feoffment

livery, lands, mode, deed, feoffee, land, possession, feoffor and law

FEOFFMENT is that mode of con veying the property in lands or corporeal hereditaments in possession where the land passes by livery in deed, i. e. actual delivery of a portion of the land, as a twig or a turf ; or where, the parties being on the land, the feoffor expressly gives it to the feoffee. Livery in law or within view, is when, the parties being within sight of the land, the feoffor refers to it and gives it to the feoffee. A feoff ment was the earliest mode of conveying real hereditaments in possession known to the common law. A grant, which was an instrument in writing, was the mode used when lands subject to an exist ing estate of freehold, and when rents or other incorporeal hereditaments incapa ble from their nature of being the sub jects of livery, were transferred. The term feotlinent is evidently of feudal origin, its Latinised form being feoffa mentum, from feudare or infeudare, to infeoff, to give a feud ; he who con fers the feud or fief is the feoffor, and he who receives it the feoffee. This mode of conveyance is common to all nations in rode ages. (Gilbert, Ten. 386.) It pre vailed amongst the Anglo-Saxons, who gave possession by the delivery of a twig or a turf, a mode still common, particu larly in the admission of tenants of copy hold lands. The form of an ancient feoffment was very concise. There is a copy of one in the Appendix to the 2nd vol. of Blackstone's Commentaries, No.1.

The essential part of this mode of con veyance is the delivery of possession, or. as it is technically called, livery of seisin. In former times land was frequently con veyed without any deed or writing, by simple delivery. Subsequently it became the custom to have a written instrument called the charter or deed of teollnant, which declared the intention of the parties to the conveyance. But now, since the Statute of Frauds (29 Car. II. § 3), a written instrument is necessary. Still however the land passes by the livery, for if a deed of feoffment is made without livery, an estate at will only passes ; though if livery is made, and the deed does not express that the land is conveyed to the feoffee and his heirs, an estate for the life of the feoffee only will pass. No less estate than an estate of freehold can pass by a feoffment with livery, the livery being in fact the investiture with the free hold.

Livery of seisin, of both the kinds pre viously mentioned, was at first performed in the presence of the freeholders of the neighbourhood, vassals of the feudal lord ; because any dispute relating to the free hold was decided before them as pares curiae, " equals of the court," of the lord of the fee. But afterwards, upon the decay of the feudal system, the livery was made in the presence of any witnesses; and where a deed was used, the livery wiLs attested by those who were present at it.

Livery in deed may be made by the feoffor or his attorney to the feoffee or his attorney. When lands lie in several

counties, as many liveries are necessary ; and where lands are out on lease, there must be as many liveries as there are tenants, for no livery can be made with out the consent of the tenant in possession, and the consent of one will not bind the rest. But livery in law or within view can only be given or taken by the parties themselves, though lands in several counties may pass if they all be within view. Livery of this nature requires to be perfected by subsequent entry in the lifetime of the feoffor. Formerly, if the feoffee durst not enter for fear of his life or bodily harm, his claim, made yearly in the form prescribed by law, and called continual claim, would preserve his right.

The security of property consequent upon the progress of civilization having ren dered this exception unnecessary, it was abolished by the recent Statute of Limit ations, 3 & 4 Will. IV. c. 27, § H.

Since the Statute of Uses jUsEs] has introduced a more convenient mode of conveyance, feoffinents have been rarely used. Corporations usually con vey their own estates by feoffment, in consequence of the supposition that a corporate body cannot stand seised to a use, though it seems that this doc trine only applies to the case of lands being conveyed to a corporation to the use of others. (Gilbert On Uses, Sugd. ed. 7 note.) Where the object to be at, tained was the destruction of contingent remainders or the discontinuance of an estate tail, or the acquirement of a fee for the purpose of levying a fine or suffering a recovery, a feoffment was usually em ployed. Such indeed was the efficacy attributed to this mode of conveyance by the early law writers, that where the feoffor was in possession, however un founded his title might be, yet his feoff ment passed a fee ; voidable, it is true, by the rightful owner, but which by the lapse of time might become good even as against him. Being thus supposed to operate as a disseisin to the rightful owner, it was thought till recently that a person entitled to a term of years might by making a feoffment to a stranger pass a fee to him, and then by levying a fine acquire a title by non-claim. This doc trine led to very considerable discussion, and though strictly accordant to the prin ciple of the old law, it has been over ruled. The whole state of the question may be found in Mr. Knowler's cele brated argument in Taylor dem. Atkins v. Horde ; I Burr. 60, Doe dem. Mad dock v. Lynes, 3 B. & C. 382 ; Jerritt v. Wrace, 3 Price, 575; 1 Sanders, Uses, 40 (4th ed.) ; 1 Preston, Cone. 32 (2nd ed.) ; and 4 Bythewood, Cone. (Jarman's edit.) 117.

The owner of lands of gavelkind tenure may convey them by feoffment at the age of fifteen ; and therefore in such cases, which are rare, a feoffment is still re sorted to.