[to possess, and an actual seisin or entry into the premises, or part of them, in the name of the whole (n). And even in ecclesiastical promotions where the freehold passes to the person promoted, corporal possession is required at this day to vest the property completely in the new proprietor; who, according to the distinction of the canonists (o), acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in ecclesiastical dignities, possession is given by "instalment ;" in rectories and vicarages, by " induction ;" without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir,] as we have seen, [has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands (p).]

[Yet the corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was in many cases antiently allowed, by transferring something near at hand, in the presence of credible witnesses; which, by agreement, should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was permitted as equivalent to occupancy of the land itself. Among the Jews, we find the evidence of a purchase thus defined in the book of Ruth (9): "Now "this was the manner in former time, in Israel, concern

(n) "Nam apiscimur possessionem corpore et animo; neque per se corpore, neque per se animo. Non autem ita accipiendum est, ut qui fundum possidere velit, omnes glebas circumambulet; sed sufficit quamlibet partem ejus fundi introire."-Ff. 41, 2, 3.And again: "traditionibus dominia rerum, non nudis pactis, transferuntur."-Cod. 2, 3, 20. (0) Decretal. 1, 3, t. 4, c. 40.

(p) Vide sup. p. 432, where it is noticed that an heir before entry cannot maintain an action of trespass. So under the rule that formerly required a title by descent to be traced from the person last seised of the inheritance, the heir was incapable, before entry, of being made the root of descent, vide sup.

p. 399.

(q) Ruth, ch. iv. v. 7.

["ing redeeming and concerning changing, for to confirm "all things; a man plucked off his shoe, and gave it to "his neighbour: and this was a testimony in Israel." Among the antient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses, who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses (r). With our Saxon ancestors, the delivery of a turf was a necessary solemnity to establish the conveyance of lands (s). And to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward, by delivery of a rod or verge, and then from the lord to the purchaser, by re-delivery of the same, in the presence of a jury of tenants.

Conveyances in writing were the last and most refined improvement.] For the donation, when depending on the remembrance and testimony of witnesses, [was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities introduced by the advancement of commerce, required means to be devised of charging and encumbering estates,] without an absolute sale thereof; [and of making them liable to a multitude of conditions and minute designations.] Written deeds (t) were consequently introduced, [in order to specify and perpetuate the peculiar purposes of the party who conveyed:] and now by the statute of frauds (29 Car. II. c. 3) s. 1, no estate created by livery of seisin only, and not in writing signed by the party, or his agent by writing lawfully authorized, shall be of any force except to constitute an estate at will. Since this statute, therefore, a feoffment has not been effectual unless

(r) Stiernhook, de Jure Sueon. 1. 2, c. 4.

(s) Hickes, Dissert. Epistolar. 85. (t) A deed of feoffment is also

called a charter of feoffment; and this is the more appropriate term. Co. Litt. 9 b, 36 a, n. (1).

accompanied either by deed or writing so signed; though the transaction has been nevertheless considered as deriving its legal force from the livery, and not from the written instrument (u). And now by 8 & 9 Vict. c. 106, s. 3, a feoffment made after 1st October, 1845, other than a feoffment made under a custom by an infant (x), shall be void at law unless evidenced by deed.

[Livery of seisin is either "in deed" or "in law." Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney (for this may as effectually be done by deputy or attorney as by the principals themselves in person), come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee (all other persons being out of the ground) a clod or turf, or a twig or bough there growing, with words to this effect: "I deliver these to you in the name of seisin of all the lands and tenements contained in this deed." But if it be of a house, the feoffor must take the ring or latch of the door (the house being quite empty), and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others (y). And in all these cases it is prudent and usual to indorse the livery of seisin on the back of the deed, specifying the manner, place and time of making it, together with the names of the witnesses (z).] And thus much for livery in deed.

[Livery in law is where the same is not made on the land, but in sight of it only; the feoffor saying to the feof

(u) Co. Litt. 48 a; et vide sup. p. 502, n. (n.)

(x) As to this custom in gavelkind, vide sup. p. 218.

(y) Co. Litt. 48a; West. Symb. 251. Further information will be found in Blackstone (vol. ii. p. 315) on this subject; and particularly as

to the cases in which more than one livery will be required, in consequence of the lands lying in different counties, or the like.

(z) As to the manner of making livery of seisin, see also Roe v. Rashleigh, 3 Barn. & Ald. 156; Doe v. Taylor, 2 Nev. & M. 508.

[fee, "I give you yonder land, enter and take possession." Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise.] By the antient law, indeed, if he dared not enter through fear of his life or bodily harm, his continual claim (a)—made yearly in due form-would suffice without an entry. But this is now altered by 3 & 4 Will. IV. c. 27, s. 11, which provides that no right of entry or action shall in future be preserved by continual claim. [Livery in law cannot be given or received by attorney, but only by the parties themselves (b).]

By feoffment, not only a fee simple may be conveyed, but an estate tail or an estate for life; for these (as we have seen) are all estates of freehold. But the term "feoffment" is considered as importing more properly a conveyance of the fee; while the conveyance of an estate tail is more technically called gift; that of an estate for life, a demise or lease (c).

The last point that we shall notice with respect to this conveyance, is, that up to a recent period it has been distinguished from others by the following property; that when made (without fraud) by a person in actual possession, it would always have the effect of passing to the feoffee a freehold, either by right or by wrong. For it was a delivery of the actual seisin, that is, of the actual possession, as for an estate of freehold, in fee, in tail, or for life; so that if the feoffor was himself lawfully seised to the full extent of the estate that he conveyed, a freehold as of right would pass; and even if he was not lawfully seised, or not lawfully seised to that extent, a freehold would still pass, though a freehold by wrong (d). And

(a) Litt. s. 421; Co. Litt. 48 b; 2 Inst. 483.

(b) Co. Litt. 52 b.

(c) Litt. s. 59; Co. Litt. 9 a. Blackstone (vol. ii. p. 316) enumerates " gift" as a separate conveyance; but, as he himself remarks,

it differs in nothing from a feoffment, but in the nature of the estate passing by it."

(d) Litt. ss. 599, 611; Co. Litt. 367 a; Fermor's case, 3 Rep. 77; Taylor v. Horde, 1 Burr. 60; Co. Litt. by Butl. 330 b, n. (1); 2 Sand.

when by such means, or by any other, a wrongful or tortious freehold was created, the effect was, that the person lawfully entitled to the freehold in possession was disseised; and if there were any persons in reversion or remainder, such reversion or remainder was displaced or divested, so that each of these parties ceased to retain (strictly speaking) an estate; though each nevertheless possessed a right of entry; that is, was entitled, in his proper turn, to enter, and eject the wrong-doer, and thus to revest his own estate (e). But all this doctrine, so far as regards the operation of a feoffment by wrong, long diminished in practical importance by the growing rarity of feoffments, and by other causes, and latterly involved in some degree of obscurity, is now abolished by the provision of 8 & 9 Vict. c. 106, s. 4, to which we have had frequent occasion already to refer, that "a feoffment made after the 1st October, 1845, shall not have any tortious operation."

II. A Grant is effected by mere deed, without livery of seisin, containing words expressive of the intention to con

Us. 18, 20; Doe v. Hall, 2 Dow. & Ry. 38; Doe v. Lynes, 3 Barn. & Cress. 388; Doe v. Taylor, 5 Barn. & Adol. 575. The doctrine in the text, though no longer in force, yet deserves attention from its tendency to illustrate the principles of the law of real property. It is to be observed, that, independently of a feoffment, a tortious estate may be created by any act that produces a disseisin, or any wrongful ouster of the freehold. (Co. Litt. 2 a.) The nature of these wrongful acts will be explained in that part of the work which treats of civil injuries, vide post, bk. v. c. VIII.

(e) Co. Litt. 251 a, b, 327 b; 1 Saund. by Wms. 319, n. (1); Focus

v. Salisbury, Hard. 401, 402. In the particular case, however, of a wrongful feoffment by tenant in tail in possession, the effect was different; for it was a discontinuance, which formerly deprived the reversioner or remainder-man (as well as the issue in tail) even of his right of entry, and left him nothing but a right of action. (Co. Litt. 327 b.) But by 3 & 4 Will. 4, c. 27, s. 39, a discontinuance is no longer to be attended with this effect (see also 8 & 9 Vict. c. 106, s. 4). A discontinuance, besides, involved (as we have seen) no forfeiture of the particular estate; though it was otherwise with a wrongful feoffment by tenant for life or years. Vide sup. p. 468.