words.

KNOW ALL MEN, PRESENT AND TO COME (1), That I Operative [feoffor] have given and granted, and by this my present charter have confirmed (2) unto [feoffee], for a certain sum of money in hand paid by him to me, one acre of my arable land lying Parcels. in, adjoining the land formerly of (3): TO HAVE

(1) It will be observed, that this feoffment is by deed-poll, which, if Deeds poll. there be no recital, usually speaks in the first person, beginning, "Know all MEN BY THESE PRESENTS that I, A. B., of &c., do &c." But when recitals are introduced, it speaks in the third person, beginning, "TO ALL PERSONS TO WHOM THESE PRESENTS SHALL COME, A. B., of &c., sends greeting," and proceeding, "WHEREAS, &c. NOW THESE PRESENTS WITNESS," &c. (2) The land passed, and still passes, by the livery, of which the charter of Origin of "hath feoffment was and is merely the record or written evidence; hence the lan- granted," &c. guage of the instrument "have given and granted, and by this my present charter have confirmed;" and hence, perhaps, the prevailing practice of employing operative words in the past and present tense, (as, "Hath granted, bargained, sold, released, and confirmed, and by these presents, Doth grant, bargain, sell, release, and confirm"), which are introduced into all modern conveyances, whether of real or personal property, without regard either to the reason of the ancient form, or to the form itself.

(3) The "all estate" clause would not have been in character with the assurance, of which the livery was the operative part. Livery was made of the possession, or seisin, and not of the estate, or interest, of the feoffor. And although the "all estate" clause is now commonly inserted, as well in feoffments as in other conveyances, yet it is properly omitted where the feoffment is made with the intention of creating a disseisin, and where, of course, the feoffor contemplates the acquisition of a tortious fee, and not

As to the "all estate clause

in feoffments.

1

HABENDUM

and TENENDUM.

Warranty.

Hiis testibus.
Date.

Modern doc

AND TO HOLD the aforesaid acre of land, with all its appurte-
nances, to the said [feoffee], his heirs and assigns, of (4) the
chief lords of the fee, rendering and doing yearly to the same
chief lords the services therefore due and accustomed. And
I, the aforesaid [feoffor], and my heirs and assigns, all the
aforesaid acre of land, with all its appurtenances, to the afore-
said [feoffee], and his heirs and assigns, against all men will
warrant for ever. IN WITNESS whereof to this present char-
ter I have put my seal: These being witnesses (5), [names of
witnesses], and others. Given at
on the
before the feast of Saint Mary the Virgin, in the
of the reign of King

day next

year

(L. S.)

MEMORANDUM of Livery indorsed on the above Feoffment.

BE IT REMEMBERED, that, on the day and year within written, full and peaceable seisin of the within-mentioned acre, with the appurtenances, was given and delivered by the withinnamed [feoffor] to the within-named [feoffee], in their respective proper persons, according to the tenor and effect of the within-written charter, in the presence of [names of witnesses], and others.

merely the passing of his lawful estate and interest. The practitioner trine as to dis- should, however, be cautioned against relying, at this day, on the forcible seisin, &c. operation ascribed to feoffments in the old books, and particularly against the experiment of making a feoffment for the purpose of transforming a long term of years into a fee. (See Doe v. Lynes, 3 Barn. & Cress. 388; 5 Dowl. & Ryl. 160; Doe v. Hall, 2 Dowl. & Ryl. 38). The tortious operation of assurances has been so much discountenanced of late, that some conveyancers of eminence appear to have thought that the effect of even a fine sur conusance de droit come ceo, &c., levied by a legal tenant for life, might, by the deed leading or declaring the uses, have been so corrected as to prevent a forfeiture.

Tenendum.

(4) The tenendum, "To hold," is still retained in conveyances; but as tenure is a consequence of law, which the party cannot control, (ante, Vol. 8, Chap. i.), words expressing of whom, and by what services, &c., the land shall be held, are (except upon a sub-grant or lease reserving rent, &c.) very rarely, and never usefully inserted.

(5) When a deed was denied, process issued to bring in all the witnesses named in the deed. The names of the witnesses are not now inserted in the deed.

No. 2.

FEOFFMENT by a Tenant in Fee, in Possession, to
another for Life, Remainder for Life, Remainder
in Tail, Reversion to the Feoffor, with Powers of
Attorney to deliver and receive Seisin.

THIS INDENTURE, made the

year of our Lord

day of

in the Date.

BETWEEN [feoffor], of [residence Parties.

and quality of the party], of the one part, and [feoffee], of &c.,

eldest son and heir apparent of the said [feoffor], of the other

words.

part, WITNESSETH, that the said [feoffor], in consideration of TESTATUM. the marriage heretofore solemnized between the said [feoffee] Consideration. and [Christian name of feoffee's wife], his wife, formerly [maiden name], spinster, and in consideration of the natural love and affection which the said [feoffor] bears towards his son, the said [feoffee], and grandson [son of feoffee], the eldest son and heir apparent of the said [feoffee], and for other good causes and considerations him the said [feoffor] hereunto moving, Hath given, granted, and enfeoffed, and by these presents Operative Doth confirm unto the said [feoffee], All &c. [parcels], (of Parcels. which said hereditaments the said [feoffor] is seised in feesimple), Together with all the rights, members, and appurtenances thereunto belonging; And also all the estate, right, "All estate" title, and interest, at law or in equity, of the said [feoffor], in or to the said hereditaments and premises, and every part thereof, with their appurtenances; And all deeds and mu- Deeds. niments in his possession or power relating thereto: TO HABENDUM. HAVE AND TO HOLD the said hereditaments and premises hereby granted and enfeoffed, or intended so to be, with their appurtenances, unto (6) the said [feoffee] and his as- Particular es

(6) It will be observed that all the limitations in the text, consisting of a particular estate, remainders, and reversion, arise at the common law. The habendum is immediate-"unto" the first taker for life, and after his decease, "unto" the next taker, &c. In order that the limitations may be valid in this shape, they must conform strictly to the rules of the common law. The first limitation may be for years only, as, habendum to A. for the term of 100 years, and from and after the expiration or sooner determination of that term, to B. for life, &c. (in which case the livery is made to A.; Litt. s. 60); but the first freehold limitation must confer a vested estate, and the subsequent freehold limitations must be so framed as to ex

clause.

tate for life.

Common law limitations—

rules concern

ing them.

Remainder for signs, during his natural life, without impeachment of waste; and immediately after his decease (7) unto the said [Christian

life.

Practical value of a knowledge

of those rules.

Particular estates and re

mainders, how to be limited.

pect, or depend, on the immediate determination, by natural or legal means, of the preceding freehold limitations. If the habendum were "to A., from Christmas next, for his life, and after his death to B." &c., or "to the unborn child of A. in tail, and after the death of such child without issue, to B." &c., all the limitations would be void at law: (Shep. Touch. 219): and if the habendum were "to A. for a term of years, and, subject to that term, to B. from Christmas next, for his life, or to the unborn child of B." with limitations over, the limitation to B. or to his unborn child, and all the subsequent limitations, would be void at law. (Co. Litt. 48. b.). So, if the habendum were "to A. for life, and after his death and one day, to B.," or "to A. in fee, and if he shall die without issue living at his death, to B.," the limitation to B. would be void at law. But the introduction of a few additional words changes the whole result of the conveyance. For if the ha

bendum were "to A. and his heirs to the use of A. from Christmas next, for his life, and after his death to the use of B." &c., the limitations would be valid, because the habendum "to A. and his heirs," imports a seisin of the fee in A., conformably to the rules of the common law, while the limitations take effect as springing uses engrafted upon that seisin, and consequently need not conform to those rules;—and so, of the other examples. Although limitations in conveyances of estates of freehold tenure are commonly created by way of use, yet it is by no means unimportant to the practitioner to obtain a correct knowledge of the rules which govern the creation of estates at the common law, inasmuch as the seisin to serve uses, raised by transmutation of possession, must be created by a common law conveyance. To exemplify the practical importance of such knowledge; suppose that, in the ordinary case of a strict settlement before marriage, the draughtsman, instead of conveying to A. and B. and their heirs, to the use of the settlor and his heirs till the marriage, and after the marriage, to the uses of the settlement, were to convey, by feoffment, or lease and release, to A. and B. and their heirs from and after the solemnization of the marriage, but to the uses of the settlement, the conveyance of the land, and consequently the uses, would be void at law, and the only result would be a contract in equity; because the conveyance so framed would purport to confer upon A. and B. an estate of inheritance in futuro.

(7) The limitations should form a regular chain, each limitation being linked on to the limitation immediately preceding: as, "to A. for life, and after his death to B. for life, and after his (B.'s) death, (not after the death of the survivor of A. and B.'), to C.;" or "to A. for life, and after his death to B. and the heirs of his body, and on failure of such issue, (not 'after the death of A., and the death and failure of issue of B.'), to C." Where the limitations are numerous, to usher in each successive limitation by recapitulating the events which must happen in order to exhaust all the preceding limitations, would be to accumulate words at compound interest. Again, in the limitation of a remainder, it is usual to contemplate only the natural or regular determination of the preceding estate, as, "to A. for life, and after his death, (not after his death or on the forfeiture or surrender &c. of his estate'), to B."