mode of conveying lands by feoffment, with livery of seisin, and in Illinois and Missouri, a feoffment, deed, or conveyance in writing, passes the estate without livery of seisin. In South Carolina, feoffment, with livery of seisin, is still a valid and subsisting mode of conveyance. So, in Connecticut, feoffment, without livery.

65. What was a grant ?—490.

It was a common law conveyance, and applied to incorporeal hereditaments, such as reversions, rents, and services; which, not being of a tangible nature, and existing only in contemplation of law, could not be conveyed by livery, of seisin. Such rights were said to lie in grant, and not in livery, and they were conveyed simply by deed.

66. What was the difference between a feoffment and a grant?

-490.

There was this essential difference between a feoffment and a grant while the former carried destruction in its course, by operating upon the possession, without any regard to the estate or interest of the feoffor, the latter benignly operated only upon the estate or interest which the grantor had in the thing granted, and could lawfully convey.

67. What did the common law require, to render the grant effec tual?-490, 491.

It required the consent of the tenant of the land out of which the rent, or other incorporeal interest, proceeded; and this consent was called attornment; but this is now abolished in the United States.

68. Have not the New York Revised Statutes rendered the attornment of the tenant unnecessary to the validity of a conveyance by his landlord?-491.

Yes. But to render him responsible to the grantee, for rent or otherwise, he must have notice of the grant. Nor will the attornment of a tenant to a stranger be valid, unless made with his landlord's consent, or in consequence of a judgment or decree, or to a mortgagee, after forfeiture of the mortgage.

69. Have not the New York Revised Statutes given to deels of conveyance of the inheritance or freehold, the name of grants ?—

491.

Yes. And though deeds of bargain and sale, and of lease or release, may continue to be used, they are to be deemed grants.

70. What is the nature and effect of a covenant to stand seised to uses ?-492.

By this conveyance, a person seised of lands covenants that he will stand seised of them to the use of another. On executing the covenant, the other party becomes seised of the use of the land, according to the terms of the use; and the statute of uses immediately operates, and annexes the possession to the use.

71. Can any use be raised for any purpose by this conveyance, in favor of a person not within the influence of a domestic consideration ?-493.

No. And it makes no difference whether the grantee, if he be a stranger to the consideration, is to take on his own account; · or as a mere trustee for some of the family connections. He is equally incompetent to take.

72. Does this mode of conveyance exist in England ?—493.

It is said to be no longer in use there. It owes its efficacy to the statute of uses; and in New York the statute of uses is abolished, and no mention is made of this conveyance.

73. What is a general rule as regards the form of conveyances?

-493.

It is a principle of law, that if the form of the conveyance be an inadequate mode of giving effect to the intention, according to the letter of the instrument, it is to be construed under the assumption of another character so as to give it effect. Cum quod ago non valet ut ago, valeat quantum valere potest.

74. Is there not a qualification to this rule?—493, 496.

Yes; the instrument must partake of the essential qualities of the deed assumed. And, therefore, no instrument can operate as a feoffment without livery, either shown or presumed; nor

(as a grant, unless the subject lies in grant (as it now does in New York in all cases of the freehold); nor as a covenant to stand seised, without the consideration of blood or marriage; nor as a bargain and sale, without a valuable consideration.

75. What is the usual mode of conveyance in England?-494.

That of lease and release; because it does not require the trouble of enrolment. It was contrived by Sergeant Moore, at the request of Lord Norris, for a particular case, and to avoid the unpleasant notoriety of livery, or attornment. It was the mode universally in practice in New York until the year 1788.

76. What mode of conveyance is most prevalent in the United States?-495.

That of bargain and sale; and it was in universal use in New York prior to the introduction of the grant by the Revised Statutes, in January, 1830.

77. What, originally, was a bargain and sale ?-495, 496.

It was originally a contract for the conveyance of land for a valuable consideration; and though the land itself would not pass without livery, the contract was sufficient to raise a use, which the bargainor was bound in equity to perform. Nothing can be more liberal than the rules of law, as to the words requisite to create a bargain and sale. There must be a valuable consideration, and then any words that will raise a use will amount to a bargain and sale. After the statute of uses was passed, the use which was raised and vested in the bargainee, by means of the bargain, was annexed to the possession; and by that operation the bargain became at once a sale, and complete transfer of the title.

1

LECTURE LXVIII. B. XXXII-2.

OF TITLE BY WILL OR DEVISE

1. What is a will?-501.

A will is a disposition of real and personal property, to take effect after the death of the testator. When the will operates upon personal property, it is sometimes called a testament; and when upon real estate a devise; but the more general and the more popular denomination of the instrument, embracing equally real and personal estates, is that of last will and testament.

2. Were lands devisable with the Anglo-Saxons ?-503.

It seems that they were, to a qualified extent. But upon the establishment of the feudal system, at the Norman conquest, lands held in tenure ceased to be devisable.

3. What exceptions were there to this restraint ?—504. Burgage tenures, and lands in gavelkind.

4. When did the disposition of real property by will become absolute?-504.

In the beginning of the reign of Charles II. .

5. Was not the English law of devise imported into this country by our ancestors ?—504, 505.

Yes; and incorporated into our colonial jurisprudence, under such modifications, in some instances, as were deemed expedient. Lands may be devised by will in all the United States; and the statute regulations on the subject are substantially the same, and they have been taken from the English statutes of 32 Henry VIII., and 29 Charles II.

6. What is the general rule as to the parties to a devise?—505,

506.

That all persons of sound mind are competent to devise real estate, with the exception of infants and married women. A feme covert may devise, by way of the execution of a power;

but

the will that she makes in such a case, must be executed with the same solemnities as if she had executed the will while sole; and the statute of New York excludes the exercise of such power by her during infancy.

7. May testaments of chattels be made by infants ?-506.

They might at common law be made by infants of the age of fourteen, if males, and twelve, if females.

8. Are the laws in the several States uniform on this point?—

506.

They are not; and by the New York Revised Statutes, the age to make a will of personal estate is raised up to eighteen in males, and sixteen in females; nor can a married woman make a testament of chattels, any more than of lands, except under a power or marriage contract. •

9. May infants, femes covert, and persons of nonsane memory, and aliens be devisees ?-506.

Yes; for the devise is without consideration. A devise to the heir at law is void, if it gives precisely the same estate that the heir would take by descent, if the particular devise to him was omitted out of the will.

10. Which, in this case, has the precedence, title by descent, or by devise?-506.

Title by descent.

11. If the land be devised to the heir charged with debts, by what will he take, and why?-507.

By descent; for the charge does not operate as an alteration of the estate.

12. Are not corporations excepted out of the English statute of wills?-507.

Yes; corporations are excepted out of the English statute of wills, and the object of the law was to prevent property from being locked up in perpetuity, and also to prevent languishing and dying persons from being imposed upon by false notions of merit or duty, to give away their estates from their families.