EXCHANGE.

other lawful and reasonable acts, deeds, conveyances, assurances and things for the further and better or more satisfactorily granting Life Estate. and demising the same messuages, lands and hereditaments unto and to or for the use of the said (second party) and his assigns, for and during the residue which shall then be to come of the said term of years, hereinbefore expressed to be granted and demised as aforesaid. AND, &c. [Add similar covenants by the se- Like covenants by second party. cond party with the first party.] IN WITNESS, &c.

Ad valorem duty on sum, if any, given for equality of exchange; Stamp. see post. Vol. III. " STAMP," Sched. verb. "EXCHANGE.'

"

FEOFFMENT.

By infant heir

in gavelkind.

No. CCCXLVII.

A Deed of Feoffment by an Infant Heir in Gavelkind (1).

THIS INDENTURE made the

day of

in the

Parties.

BE

year of the reign, &c., and in the year of our Lord 18 TWEEN (the feoffor) of, &c. of the one part, and the (feoffee) of, &c. Recital of death of the other part. WHEREAS (the father) late of

of ancestor.

Of custom authorizing the conveyance by feoffinent.

in the county of Kent (2) deceased, died seised in his demesne as of fee of the several lands and hereditaments hereinafter particularly described, which upon his decease descended unto and the said (feoffor), as his sons and co-heirs by the custom of gavelkind. AND WHEREAS by the said custom, heirs in gavelkind having attained the age of fifteen years are authorized to enter upon the lands so descended to them, and there by delivery of seisin thereof to convey the same, as fully and effectually as if of the age of twenty-one years at the common law. AND WHEREAS the said (feoffor) is above the said age of fifteen years, that is to say, of the age of

(1) An infant holding lands in gavelkind is by the customary laws of that tenure considered as of full age at the age of fifteen, for the purpose of disposing of them for money, or other valuable considerations; see Robinson's Treat. Gav. 193; and, as some have thought, although no consideration appears; see ib. 217. But in order to give effect to his conveyance, it must be by feoffment, and livery made by the infant in person, and not by attorney.

It seems also that the infant must be seised of the lands in fee-simple in possession; Vaughan v. Holden, Cro. Jac. 80. And according to some he must have taken the lands by descent, and not by will or purchase; Noy, 40. Lamb. 627; Bend. 33. pl. 52. But the better opinion appears to be, that this is not material. See Rob. Gav. 217.

(2) It appears from the stat. of 18 Hen. 6. c. 2. that nearly all the land in Kent was formerly gavelkind; but since that time a very considerable quantity has been disgavelled by different statutes. The presumption of law, however, still is, that all the lands in that county are gavelkind until the contrary be proved; 2 Sid. 138. 153; 3 Keb. 216.

FEOFPMENT.

By infant heir in gavelkind.

WITNESS. That in pursu

tom,

years, or thereabouts. AND WHEREAS, &c. (1) NOW THIS INDENTURE WITNESSETH, that by virtue and in pursuance of the said custom, and for and in consideration (2) of the sum of £ of lawful money of the United Kingdom of Great Britain and Ireland, to the said (feof- ance of the cusfor) in hand well and truly paid by the said (feoffee), the receipt whereof the said (feoffor) doth hereby acknowledge, and of and from the same doth acquit and discharge the said (feoffee) as well by these presents as by the receipt or acknowledgment for the same sum hereupon indorsed, HE the said (feoffor) HATH given, granted, and the heir grants enfeoffed, and by these presents DoтH give, grant, enfeoff and confirm unto the said (feoffee) and his heirs, ALL that the moiety, or half part, [as the case may be] (the whole into two equal moieties, or half parts, being considered as divided) of him the said (feoffor) of and in ALL, &c. or howsoever otherwise the said messuages, lands, The parcels. tenements and hereditaments, or any of them now are or is, or heretofore were, or was situated, tenanted, called, known, described or

and enfeoffs.

(1) Recite here the reason of the feoffment, as to make a partition, Recital. or the like.

(2) An infant being of age (and consequently out of guardianship) at the age of fifteen years, by the custom of gavelkind, Lamb. 624. it seems to follow, that he is to be deemed of full discretion to all intents and purposes, and may therefore receive and give a valid discharge for the consideration money; for it is expressly stated by Lambard, that he was at fifteen "completely out of guardianship," and might at that age sell his lands "for money, or other valuable consideration," and if he can sell for money, he may, according to the opinion of Lord Kenyon, when Master of the Rolls, as cited in Crewe v. Dicken, 4 Ves. 99. receive and give a discharge for the purchase money, and so is the form of the only deed I have been able to meet with in the books, which, after reciting "Cumque etiam secundum consuetud. de Gavelkind de tempore cujus contrarium memoria hominum non existit usitat. et approbat. bene licet heredes Gavelkind, qui ætatem quindecem annorum excesser. eorum terr. seu Tenementa ad illorum voluntatem donare et vendere," goes on to state the payment of the consideration money to the heir. "Sciatis nunc me præfat. L. B. ætatis nunc novem decem annorum et amplius secundum consuetudinem pro et in consideratione summæ, &c. legalis, &c. mihi præfat. L. per J. H. de. &c. bene et fideliter premanibus persolut. dedisse donasse et vendidisse, &c." See the PERFECT CONVEYANCER, Part. I. fol. 190, comprising various precedents stated to have been collected by Hendon, Noy, Mason, and Fleetwood, which, if correct, must be considered as a book of competent authority for the point in question.

It may, however, be proper to observe, that notwithstanding this pri vilege of alienation, at fifteen, an infant in gavelkind may have his age and all other privileges of an infant at the common law; 1 Roll. Ab. 144. G. pl. 11.

Payment of the consideration money to the infant, good.

Gavelkind infant although 15 has the privileges of

common law infant.

FEOFFMENT.

in gavelkind.

distinguished, and also of and in all other the several lands and By infant heir hereditaments, of which he the said (feoffor) is seised, or entitled in gavelkind as aforesaid, and which so descended unto the said and (feoffor) in gavelkind, upon the decease of the said (father) as hereinbefore is mentioned; together with all and all manner of rights, privileges, appendages, advantages and appurtenances to the same belonging, or with the same or any part thereof now or heretofore holden, used, occupied, or enjoyed. And all the estate, right, title, interest, property, claim and demand whatsoever, both at law and in equity, of him the said (feoffor) of, in, or to the same premises, or any of them. TO HAVE AND TO HOLD the said messuages, lands, tenements, hereditaments, and all and singular other the premises hereinbefore granted, enfeoffed, and confirmed, or mentioned or intended so to be, with their and every of their appurtenances, unto the said (feoffee), his heirs and assigns, to and for the use, behoof and benefit of him the said (feoffee), his heirs and assigns, for ever (1). IN WITNESS, &c.

TO HOLD to the feoffee.

Warranty in a feoffment by an infant heir in gavelkind, void.

(1) No warranty can be annexed to a feoffment made by an infant of gavelkind lands. All customs which are derogatory from the common law must be construed strictly, and as this custom reaches no further than a conveyance by a naked feoffment, a warranty is not comprehended in it, and will therefore consequently be void; 1 Roll. Ab. 568. H. pl. 5.

Stamp.

Same as in other conveyances.

No. CCCXLVIII.

A Deed of Feoffient by a Termor, for the purpose of acquiring the Fee (1).

FEOFFMENT.

By Termor.

(1) A feoffment may be defined to be a conveyance of corporeal hereditaments from one person or body corporate to another, by delivery of possession, which may be either upon or in view of the hereditaments so conveyed, and the ceremony of performing this is usually called livery of seisin.

A feoffment is the oldest and most efficacious conveyance provided by the common law for the assurance of land; and although not now very often had recourse to, is by no means an obsolete conveyance, and may be used with advantage in most cases where the actual seisin of the land is proper to be given, either for divesting any prior wrongful estate acquired by a disseisor or others, or for the purpose of giving effect to some subsequent assurance, which requires the seisin to be in the grantor; the operation of a feoffment being to clear all disseisins, intrusions and other wrongful and defeasible estates, where the entry of the feoffor is lawful, (which cannot be done even by fine or recovery, Co. Lit. 9. a.; Smith dem. Dormer v. Packhurst, 3 Atk. 135.) and to vest the freehold in the feoffee, and is the only conveyance by which a tenant for years, by elegit, statute merchant or staple, or a copyholder can create an estate of freehold by disseisin, Co. Lit. 49. a.; 2 Inst. 413. for if a tenant for years, &c. levy a fine without having previously created a fee by disseisin, it may be avoided by pleading partes finis nihil habuerunt; Hunt v. Bourne, 1 Salk. 339; Carter v. Barnardiston, 1 P. Wms. 519; Smith dem. Dormer v. Packhurst, S Atk. 135 Whereas if a feoffment with livery of seisin be made previously to the fine, the feoffee after five years' non-claim by the reversioner, (he being under no disability,) will have an indefeasible title to the fee-simple, Shield v. At