FEOFFMENT. By Termor. Parties. WITNESS. The feoffor grants. of our Lord 18 BETWEEN (the feoffor) of, &c. of the one part, and (the feoffee) of, &c. of the other part, WITNESSETH, that for the purpose of vesting the freehold of the hereditaments and pre kins, 3 Atk. 562, as the livery will create an estate of freehold by disseisin, and the freehold thus created will be sufficient to support the fine levied upon it. It is to be observed, however, that a feoffment can be made only of land or other corporeal hereditaments, as these alone are capable of delivery of possession. The case supposed in the text is that of a mortgagee for years, in possession under a decree of foreclosure, who on account of the length of time elapsed, is unable to discover the reversioner, and is therefore desirous of acquiring the freehold and inheritance, by the means above stated, and which is almost the only case in which the fee can be acquired by the termor; for if a tenant at will, copyholder, or lessee for years, make a feoffment, and levy a fine, it will, by reason of the privity that subsists between him and the owner of the inheritance, be considered fraudulent; Fermer's Ca. 3 Co. 77; Shield v. Atkins, 3 Atk. 562; Smith dem. Dormer v. Packhurst, ib. 141; Whaley v. Tancred, 1 Vent. 241; Sir T. Raym. 219, S. C. * Since the above note was written by the former editor, the doctrine referred to has been in some degree qualified by recent opinions; but without entering into a discussion of the question, which on account of the little probability of a case of this kind frequently occurring, and of its importance when it does occur being such that an attempt to acquire the fee by the means proposed should never be made but under the sanction of a professional opinion taken upon the actual circumstances of the case, I shall merely present the student with some remarks on the point, by made two of our most modern and learned writers. "It is fit to guard the profession against the practice of termors for years making feoffments to gain the freehold though they first assign their terms to a trustee with a view to protect against forfeiture and to attend the inheritance. A late decision of the Court of King's Bench, (Hilary Term, 1817) on a motion for a new trial treated the term as forfeited. There was abundance of principle and even of decision to lead to that conclusion. In the first place it is a fraud on the part of the termor to attempt to gain the freehold. Secondly, The admission by the assignee of a title in the feoffee to the reversion is an attornment to a stranger; and by the rules of the common law attornment by a termor to a stranger is an abandonment of the tenancy, a destruction of the privity between the termor and the reversioner, and a forfeiture of the term." Prest. Conv. p. xxxii; and see Throgmorton v. Whelpdale, B. R. Hil. 9 Geo. 3. B. N. P. 96; Doe ex dem. Foster v. Williams, Cowp. 621; Peake 196; Espinasse 462, per Lord Redesdale, in Hovenden v. Lord Annesley, 2 Schoales and Lefroy, p. 625; also Kelly v. Power, 2 Ball and Beat. 245; Cholmondeley v. Clinton, 2 Mer. 238. "It is a common practice (a practice to be now carefully avoided) for a termor who wishes to acquire the freehold to make a feoffment and then levy a fine; first assigning the term to attend the in FEOFFMENT. Parcels. mises hereinafter described in the said (feoffee) to the uses hereinafter expressed, HE the said (feoffor), HATH given, granted By Termor. and enfeoffed, and by these presents DoтH give, grant, enfeoff and confirm unto the said (feoffee) and his heirs, ALL, &c. or howsoever otherwise, the said messuages, lands, tenements, heditaments and premises, or any or either of them now are, or is, or heretofore have been situated, tenanted, called, known, described or distinguished; together with all houses (1), outhouses, buildings, barns, stables, coach-houses, dovehouses, yards, cellars, vaults, areas, benefit and advantage of ancient and other lights, ways, paths, passages, gardens, orchards, land covered with water, watercourses, rivers, streams, springs, timber and other trees, woods, heritance. It seems better that a stranger should enter and make the feoffment, and that the term being restored by entry, the termor should make an assignment to attend the inheritance, and afterwards accept a conveyance of the inheritance; and even then it may be doubted whether the termor does not by his re-entry regain the seisin to his reversioner; also, whether, by acceding to the arrangement, he does not forfeit the term. But if a disseisin turn the right of the reversioner into a right of action, then the re-entry of the termor will not revive the seisin of the former owner. The general rule is, that the possession of the termor is, in effect, the seisin of the owner of the reversion." Watkins, Principles by Preston, p. 216. "A termor may gain the fee by the following means. In the first place the term should be assigned to a trustee, then a feoffment of the lands should be executed; and after the feoffment, the trustee to whom the term is assigned, should declare that he will stand possessed of the lands during the term, in trust to attend the inheritance according to the uses created by the feoffment. This mode will give the purchaser a good title against all persons except the lessor or reversioner; and as he can claim no title till the expiration of the term, the title will be substantially good against all the world, if the term be a long one. At the same time it is evident that there are certain privileges attached to a freehold estate, which could not be claimed by the purchaser in derogation of the rights of the reversioner. Indeed this mode of making a title should only be resorted to where it is not known who is the lessor or reversioner. See Saunders v. Lord Annesley, 2 Scho. and Lef. 73. There would be no difficulty in holding such a feoffment void, as fraududulent; but it would be quite impossible to hold it a forfeiture of the term in the trustee." Sugd. Vend. and Pur. p. 261, n. (1), 6th Edition. (1) A particular description of the premises of which it is intended Parcels. to levy a fine, should be inserted here, describing them by their ancient and present name, situation, boundary, &c. FEOFFMENT. By Termor. To hold to the feoffee to the To the intent that he may be underwoods, and the ground and soil thereof, and all and all manner of other rights, privileges, advantages and appurtenances to the same premises belonging, or with the same, or any of them now or heretofore holden, used, occupied or enjoyed (1); 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 use of the feoffor. 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, but to the use of him the said (feoffee), his heirs and assigns, for ever; to and for the end, intent and purpose, that he the enabled to levy said (feoffor), his heirs or assigns, may acquire an absolute seisin for an estate of freehold in the said premises, and be thereby enabled to levy one or more fine or fines sur cognizance de droit come ceo, &c. as of term now next ensuing or any subsequent term, with proclamations to be thereupon had in pursuance of the statute in such case provided (2) of the same premises, to the use of himself and his heirs for ever. AND it is hereby declared and agreed, that the said fine or fines so to be acknowledged and levied of the said messuages, lands, tenements and hereditaments, as hereinbefore is mentioned, shall be and enure, and shall at all times, and from time to time be construed, deemed and taken to be and enure, and the person or persons to whom the said fine or fines, and other assurances respectively shall or may be levied, made and executed, shall stand and be seised as to all and singular the messuages, lands, tenements and hereditaments by these presents granted and enfeoffed, or otherwise assured, or expressed or intended so to be, a fine. Declaration of uses of fine. "Reversion and reversions." Fine must be levied of a term subsequent to the livery. (1) The words "and the reversion and reversions, remainder and remainders," &c. are generally inserted in deeds of feoffment, as in the conveyance by release; but this seems to be a mere inadvertency, owing to a want of discrimination between the two assurances. By the rever. sion in the release is meant that which is expectant upon the determination of the previous estate or lease for a year; but there can be no such reversion in a deed of feoffment which transfers the whole of the feoffor's interest. (2) Care must be taken that the fine be levied of a term subsequent to the livery, in order that the termor may have the freehold in him for the fine to operate upon at the time of its being levied. unto and to and for the use and behoof of the said (feoffor) (1), his heirs and assigns for ever (2). IN WITNESS, &c. FEOFFMENT. By Termor. (1) If the feoffor be married, and wish that the estate which it is Limitation to intended to acquire by the fine should be limited to a trustee to pre- prevent dower. vent dower, insert here the limitation given ante, p. 478, n. (1). (2) No warranty will of course be requisite in the present, as in other cases of feoffment, the intent being not to give a title to the feoffee, but to vest the seisin in him only for the purpose of its being transferred to the feoffor himself by the statute of uses, and as the feoffee is in this instance merely a trustee for him, the insertion of a warranty would have the effect of making the feoffor warrant the estate to himself. Warranty not re quisite in feoffment merely to give seisin. Possession must In order to give effect to a deed of feoffment, actual possession Practical reof the land must be delivered by the feoffor, and taken by the feoffee, marks. either personally or by attorney, in the presence of witnesses; for by the be given and old common law, and before the use of written evidence, the actual taken either delivery of possession by the one party to the other was absolutely ne- personally or by cessary to give the lord notice of the change of tenancy; and the attorney to perstatute of frauds, requiring all conveyances, &c. affecting land to be in fect a feoffinent. writing, has not altered the mode of transfer required before that act, but only aided the proof of its having been done, by requiring it to be in writing. This delivery of possession may be by any mode which indicates a How to be given symbolical delivery of the thing itself, the usual mode of doing which is and taken. by the feoffor taking hold of the key of the door, (if the feoffment be of a house, the door being the extreme and principal part of the thing delivered,) and if of land a piece of the clod or soil, in the presence of any indefinite number of witnesses, saying to the following purport: "I hereby deliver unto (the feoffee) named in this indenture, the hereditaments therein comprised, to the use of him and his heirs, [or to, for and upon the uses, trusts, intents and purposes in the said indenture expressed] in pursuance and according to the true intent and meaning of the same indenture." It will then be proper that a memorandum of such livery having been made should be indorsed on the feoffment, the form of which may be as follows: Memorandum of Livery of Seisin. "Memorandum, That on the day and year first within written peaceable and quiet possession and full seisin of the within mentioned messuages, lands, tenements and hereditaments were openly had and taken by the within named (feoffor), and by him delivered to the within named (feoffee), to hold the same to the said (feoffee) and his heirs, to the use of him and his FEOFFMENT. By Termor. If feoffment contain letter of attorney, addi tional stamp requisite. heirs for ever, [or to, upon and for the uses, trusts, intents and purposes in the said indenture expressed] according to the purport and true intent and meaning of the within written indenture, in the presence of us whose names are hereunto subscribed." By the 55 Geo. 3. cap. 184. a feoffment of lands or other hereditaments, if not otherwise charged as a purchase-deed, &c. and not containing 2160 words, requires a deed stamp only of £1 15s.; but if it contain any letter or letters of attorney to deliver or receive seisin, then a further duty of £1 15s.; see post. Vol. III. “ STAMP," Sched. verb. "FEOFFMENT." |