156 Remainders, how affected by Doctrine as to Livery. futuro, or the happening of the event on which the estate was to commence, remained in contingency, in the one case, there was no person to whom livery could be given, and if livery had been given in the other, an estate would have passed absolutely. An agreement to make livery to the person who should be entitled when the period arrived, could not be specifically enforced by any process known to the Common Law (a). It followed that when an intervening, or, as it was called, a particular estate, was granted with future estates to take effect by way of remainders, the livery must be made once for all at the creation of the estate, and when made, it inured to all persons to whom the future estates were given, provided the chain were kept entire, and not disturbed or broken in the interim, and there were a person to whom the seisin could inure instantly on the determination of each preceding estate. Following up these principles, if the precedent estate be an estate for years, the [*157] *livery of seisin must be made to the tenant for years, though his own estate does not require livery. In such case, indeed, the estate of the person in remainder commences immediately, the possession of a termor (who, as before mentioned, has an usufructuary interest rather than an estate), being the possession of the freeholder (b). An estate in remainder might, as before stated, be limited on a contingency, or a precedent estate might be made to cease on a particular event, and another estate to commence; but it was necessary that such expectant estates should vest eo instanti that the preceding estate was made to determine, so that the chain of seisin might never be interrupted (c). If the particular estate were void in its creation, or were by any means defeated afterwards, or any intervening estate were destroyed, so as to leave a chasm between one estate and another, the expectant estate or remainder, unless vested, could not, for the reason above stated, ever take effect (d). So strictly was the principle adhered to, that it was held by all the judges, though the House of Lords held the contrary; that if a gift were made to one for life with remainder to his eldest son in tail, and the tenant for life died without issue born, but leaving his wife enceinte, the son, when born, could not take the land by virtue of this remainder (e), for by reason of the chasm between the death of the ancestor and the birth of the son, without a new livery he could not have had seisin; and to settle the matter, an express Act of Parliament was passed in favor of posthumous children (f). On the same principles an estate in fee could not be made to shift from one to another by any circumstance subsequent to its creation, as on the donee coming into possession of another estate; nor could a new and distinct estate be made to spring up at a future period, independently of any other estate; neither could a power or authority be reserved to the grantor, or be given to any other person, to limit an estate, or create any change upon it, in (a) The county court could not enforce it, as perhaps it might have done before the Conquest, had livery then been necessary, for that court could not now hold plea of land but by the king's writ, and there was none for such a case, see Glanv. x. c. 8. So no real action or vindicatio would lie in such case by the Roman law, v. infra. Hayes's Elem. View, p. 21. (c) See Sugden, Introd. to Gilbert on Uses, p. xl. I would strongly recommend a perusal of this admirable little Treatise to every student. (d) See 2 Bla. Comm. 167, and note (b). (b) See 2 Bla. Comm. 166, 167; and Comm. 169. Remainders, how affected by Doctrine as to Livery. 157 derogation of the estates created by the original feoffment, not even by means of a fresh livery of seisin; for by the original livery all the estate had passed out of the feoffor; there was nothing, therefore, remaining in him out of which any livery he might afterwardsake could operate: moreover, to give a man an estate, and yet reserve a power to recall it, was such a repugnancy as the Common Law would not permit (a). The practical effect of the doctrine we have just been considering may be concisely stated to be *this, that a substantive limitation of a future estate, as such, is void at the Common Law (b). [*158] That the rule which has just been considered was technical, depending on the doctrine of livery, appears from this, that chattel interests, as leaseholds, which, as personal property, continued, as before mentioned, to be enjoyed by allodial right, and were not the subject of livery, might be given in any way that the contracting parties chose to determine, whether the estate were to commence immediately or in futuro. So a rent-charge created de novo, a rent not being the subject of livery, might be granted so as to commence at a future day, or so as to cease for a time only, and afterwards to revive (c). But a rent in esse, that is already created, could not be so granted; and the reason assigned was, that if freehold interests of this kind were thus split and severed, it might hide the person in whom the right was, by which means the person claiming a precedent right to the rent, which could not be the case in a grant of a rent de novo, might not be able to discern against whom to bring his præcipe, that is, to commence his action for recovering it; and the same reason was applied in support of the rules above stated, as to granting estates in lands in futuro, or in such manner that there might be a chasm in the seisin of lands (d). These fetters and restrictions upon the disposition of real property have been for the most part evaded through the interference of the Court of Chancery, as will be noticed in a subsequent part of this work. By an Act passed in the last year (7 & 8 Vict. c. 76) it was enacted that no estate in land should be created by way of contingent remainder, but that every such estate should take effect as an executory estate, thus making contingent remainders in effect substantive gifts independent of any prior gift, and by consequence indestructible equally as executory devises. That provision is absolutely repealed by the 1st sect. of the stat. 8 & 9 Vict. c. 106; but by the 8th sect. of that statute *all contingent remainders are protected, notwithstanding the deter[*159] (a) See Sugd. Introd. to Gilbert, xl. xli.; and 3 Ch. Ca. 66. (b) "For reasons derived from the feudal policy, if not inherent in the very nature of the primitive modes of conveyance," Hayes's Elementary View, p. 20, which is written in that eminently lucid style that distinguishes all his works. The feudal policy referred to is, that "there must always be an immediate tenant of the freehold," see Butler's Note to Co. Litt. 362 b; 1 Rep. Real Prop. p. 7. In substance both reasons appear to be the same; where no seisin was conferred, there could be no tenant of the freehold. The reason given by Lord Raymond, 151, 2 Bla. Comm. 165, is, that future estates were considered as mere contracts. (c) Cruise, iii. 308, § 21; 309, § 23. (d) Cruise, iii. p. 293, 4th edit. § 23, 24, 25; Sugden, Introd. p. xl. For a similar reason a person could not by the old Roman law appoint that at a future day a certain person should be his heir; there would have been no one against whom, in the mean time, actions could be brought on the testator's obligations, Just. Inst. ii. 14. 9. Indeed, the reason, as applied to the particular case, was Roman, as will be noticed hereafter, title, Actions. 159 Fee-simple in Abeyance-Frankalmoigne-Reversion. mination by forfeiture (which, as before observed, can hardly now happen), surrender, or merger of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened (a). The necessity for very of seisin, or anything equivalent to it (for the delivery of the deed (b) has no relation to delivery of the subject), being as before noticed (c), abolished by the same Act, the principal if not the only reason for the rule that all estates must be continuous is put an end to; and if the rule is to be considered as having been founded on feudal maxims (d), looking to the abolition of military tenure and of real actions, those reasons can no longer be said to exist. But Common Law estates in remainder must still be continuous, and not by way of future substantive gift; nor, perhaps, was it intended by the stat. 7 & 8 Vict. c. 76, to have altered the law in this respect (e). There is an exception to the rule that the chain of seisin must be kept up, in regard to Church property, or land held in frankalmoigne; for as there must be an interval between the death of one incumbent and the appointment of another, in such case the freehold was allowed to be in abeyance. The doctrine is thus stated by Littleton. If a parson of a church dieth now the freehold of the glebe of the parsonage is in none during the time that the parsonage is void, but in abeyance-namely, in consideration and in the understanding of the law-until another be made parson of the same church, and immediately when another is made parson, the freehold in deed is in him as successor; and in regard to such property the fee-simple itself is in abeyance, being neither in the parson, the patron and the ordinary, nor either of them (f). So during the suspense of a contingent remainder, as to the right heirs of J. S., he being living, it has been considered that the fee-simple is in abeyance (g). *A Reversion, as its name imports, may be described to be a [*160] right which resides in the grantor or his representatives that the land granted for any estate short of a fee-simple (so long as it remains unenlarged into a fee-simple, where that is allowable) shall return to him after the estate granted shall have been fully enjoyed. It is, as before mentioned, an estate in expectancy: the right of reverter secured by the statute de donis constitutes an estate of this description, and such an estate is capable of being impressed with similar limitations as an estate in fee (h). (a) See Neale on Real Prop. Acts, p. 57. (b) As to which, v. infra. (c) Sup. p. 140, n. (ƒ). The words are, "all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery," § 2; and by § 4 the word "give" or "grant" (v. sup. p. 138) in a deed shall not imply any covenant in law, except by force of any Act of Parliament. See Neale on Real Prop. Acts, p. 37-39. (d) Feudal reasons alone, without regard to the doctrine of livery of seisin, could not have operated against the validity of a grant to one for life or in fee from a future day, for this would not have put the freehold in abeyance; it would have remained in the grantor. (e) It would seem that the unqualified right of disposition at common law can hardly be restored without the abolition of tenure. (ƒ) Litt. § 647, 648. It is the same in the case of a bishop, dean, &c. Co. Litt. 342 b; Bracton describes the state of the feesimple in the interval as being an hereditas jacens, lib. i. c. 2. fo. (g) Co. Litt. 343 a; Fearne's Contingent Remainders, 6th edit. 351. (h) See Hayes's Introd. to Conveyancing, i. p. 132. Voluntary Alienation—Deeds—Statute of Frauds. 160 I proceed to take a general view of the different MODES OF ALIENA TION. We have seen that the original mode of Voluntary alienation of estates of freehold in corporeal hereditaments was by delivery, or livery of seisin; but as before, so after the Conquest, it was usual to have a writing as evidence of the transaction (a), particularly after it became usual to create successive interests: where conditions and charges were introduced to affect freehold estates, a deed, as we have seen, was absolutely necessary. After the Conquest, sealing (b) instead of signing was introduced, to authenticate written charters (c), and instruments so sealed, when perfected by being also delivered, acquired the name of deeds (d). Deeds are either Indentures or Deeds poll. The most important distinction between them is that a deed poll is considered as a deed made between the party or parties who executed it on the one side, and all the world on the other, or rather as a declaration addressed to all mankind of what the party executing it has done, so that any person may take a right of action on a covenant contained in a deed poll. But an indenture (which is so called because originally each party took a copy, all the copies being cut off the same parchment in a waving line) (e), is made only between the persons named as parties to it; so that an indenture between A. B. and C., containing a covenant by A. with D., would not give a right of action to D. So a stranger to an indenture could not take a release under it, or an estate unless by way of remainder, or through the Statute of Uses, which will be hereafter noticed. Now a stranger may take immediately under an indenture, and a deed may have the effect of an indenture without being actually indented; but *indenture is still the distinctive appellation of deeds made be[*161] tween more than one party (ƒ). The inconveniences which induced Constantine to require that there should be a writing as well as delivery of possession, at length produced an enactment of the legislature to the same effect in England. By the statute 29 Car. II. c. 3, commonly called the Statute of Frauds, it is enacted that all leases, estates of freehold, or terms of years, or any uncertain interest of, in, or to, or out of any lands, tenements or hereditaments, made or created by livery and seisin only, or by parol (g), and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases at will only, any consideration or any usage to the contrary notwithstanding (h). This extinguished the passing of (a) “Ad perpetuam memoriam," Bracton, fo. 33 b. (b) Bracton, 38 a. By the Roman law the solemnity of sealing by the witnesses was essential to the validity of a written will, Just. Inst. ii. 10. 2 and 3. (c) See Stat. Exon. 14 Ed. I.; 2 Bla. Comm. 306. (d) See Co. Litt. 171 b. (e) Bracton, 34 a. (f) 2 Bla. Comm. p. 296, and the cases in note (2), by Sweet. By the stat. 8 & 9 Vict. c. 106, § 5 (substituted § 11, 7 & 8 Vict. c. 76), it is enacted that the benefit of a condition or covenant respecting any lands and tenements or hereditaments may be taken, though the taker be not named a party to the indenture; and that a deed shall have the effect of an indenture, though not actually indented. (g) Parol in legal language always includes writing not sealed as well as word only. (h) § 1. Leases not exceeding three years from the making thereof, wherein a rent of two-thirds at least of the value is reserved, are excepted, § 2. 161 Various kinds of Conveyances-Feoffment— Gift—Grants, &c. estates by livery of seisin only. By the third section it is enacted, that no leases, estates, or interests of freehold for years, or any uncertain interests in any messuages, manors, lands, tenements or hereditaments (except copyhold or customary lands), shall be assigned, granted, or surrendered, unless it be by deed or note in writing signed by the party so assigning, &c., or his agent lawfully authorized in writing, or by act and operation of law (a). A deed, it is to be observed, is good at common law whether there be a consideration or not, for its solemnity always imports a consideration (b); and when a consideration is stated, whether it be true or false cannot be examined into at law (c); it is otherwise of a mere agreement (d). Conveyances at Common Law, looking to the nature of the subject of them, are, according to Sir Wm. Blackstone's description, of two kinds-namely, original and derivative (e). Original are, 1st. A Feoffment, which has already been described; and, 2d. A Gift: both have for their subject corporeal hereditaments, as land, the first being applied to conveyances in fee, the latter to conveyances in tail. *3d. A Grant, by which incorporeal hereditaments, as rents, [*162] rights of common, reversions, and the like, are conveyed; of such things no livery can be had (f), though seisin may, they therefore pass merely by the delivery of the deed of grant (g). No incorporeal hereditament can be created or transferred except by deed; all such rights are said emphatically to lie in grant, and not in livery. This does not apply to estates of inheritance only; a right of common or an easement, as a right of way, cannot, even at common law, independently of the Statute of Frauds, be granted for life or years without deed any more than they can be granted in fee (h). 4th. A Lease is described to be a conveyance of any lands or tenements for life, for years, or at will, but always for a less term than the lessor has in the premises; and usually in consideration of a rent, or other annual recompense: a lease for life of corporeal hereditaments requires livery of seisin. The Statute of Frauds did not make it necessary that a deed should be executed in order to create a leasehold interest for years, though a writing was necessary (i). 5th. A Deed of exchange is a mutual grant of equal interests, that is, fee-simple for fee-simple and the like, of things lying in livery of seisin or in grant, it is not necessary that they should be of equal value. Livery (a) § 3. This section, it will be seen, denies effect to a deed unsigned, which the first does not. (b) Crompt. 63; Cook v. Fountain, 1676; 3 Swanst. 587. (c) Crompton, 62 b, 63 b; Dyer, 169. (d) Dr. and Stud. Crompt. 62 b. As to the Construction of Deeds, v. infra. (e) 2 Bla. Comm. 309. (f) Bracton, ii. c. 18. p. 39 b. "Incorporalia-dicuntur quasi possideri, tradi enim possunt vel quasi, per patientiam et per usum," ii. c. 17. § 2 and 3. p. 38 b. (g) 2 Bla. Comm. 317. (h) Judgment in Wood v. Ledbitter, ix. Jur. 187, in Scacc. This case arose upon a question whether a person who had purchased a ticket to enter the grand stand at Doncaster, who therefore had a mere license without grant, could be lawfully turned out by the proprietor, that is, whether such license was revocable at pleasure: it was held that it was. The judgment delivered by Mr. B. Alderson contains a luminous exposition of the law on this subject. What is the legal effect of a license as distinguished from a grant, and where it is revocable, and where not, is fully entered into by that very accomplished lawyer. (i) See 2 Bla. Comm. 317, et seq. and Mr. Sweet's notes. (k) 2 Bla. Comm. 323. |