It resembles the short and plain forms now commonly used in the New-England states. The feoffment was likewise accompanied with actual delivery of possession of the and, termed livery of seisin. The notoriety and solemnity of the livery were well adapted to the simplicity of unlettered ages, by making known the change of owners, and preventing all obscurity and dispute concerning the title. The actual livery was performed by entry of the feoffor upon the land, with the charter of feoffment; and deliver ing a clod, turf, or twig, or the latch of the door, in the name of seisin of all the lands contained in the deed. The ceremony was performed in the presence of the peers, or freeholders, of the neighbourhood, who were the vassals of the feudal lord, and who might afterwards be called on to attest the certainty of the livery of seisin.

The Charter itself was not requisite. The fee was capable of being conveyed by mere livery in the presence of the vicinage. The livery was equivalent to the feudal investiture of the inheritance, for it created that seisin which became an inflexible doctrine of the common law. And if the feoffor was not able to enter upon the land, livery was made within view of it, with a direction to the feoffee to enter; and if actual entry afterwards, in the time of the feoffor, took place, it was a good livery in law.

The feoffment operated upon the possession without any regard to the estate or interest of the feoffor; and though he had no more than a naked, or even tortious possession, yet, if the feoffor had possession, the feoffment had the transcendent efficacy of passing a fee by reason of the livery, and of working an actual disseisin of the freehold. It cleared away all defeasible titles, devested estates, destroyed contingent remainders, extinguished powers,

a Co. Litt. 48. a. 2 Blacks. Com. 315, 316.

b Litt. sec. 419. 421. Co. Litt. 48. b.

a

and barred the feoffor from all future right, and possibility of right, to the land, and vested an estate of freehold in the feoffee. In this respect the feoffment differed essentially from a fine, or common recovery, for the conusor in the fine, and the tenant to the præcipe, must be seised of the freehold, or of an estate in fee, or for life, otherwise the fine or recovery may be avoided.

The doctrine of disseisin forms a curious and instructive part of the old feudal law of tenures, and it has led, in modern times, to very extended and profound discussions. This branch of the work would probably appear, to the student, to be left too incomplete, without taking some notice of this ancient and vexatious learning.

Seisin was the completion of the feudal investiture, by which the tenant was admitted into the feud, and performed the rites of homage and fealty. He then became actual tenant of the freehold. Disseisin was the violent termination of this seisin, by the actual ouster of the feudal tenant, and the usurpation of his place and relation. It was a notorious and tortious act on the part of the disseisor, by which he put himself in the place of the disseisee, and in the character of tenant of the freehold, made his appearance at the lords' court. A wrongful entry was not a disseisin, provided the rightful owner continued in possession; for it was a just and reasonable intendment of law, that when two persons were at the same time in possession, the seisin was adjudged to be in the rightful owner.b was the ouster, or tortious expulsion of the true owner from the possession, that produced the disseisin. There was a distinction between dispossession and disseisin, for disseisin was a wrong to the freehold, and made in defiance

West. Symb.

a Co. Litt. 9. a. 49. a. 367. a. Litt. 599. 611. 698. sec. 251. Sheppard's Touchstone, 205, 204. Butler's note 285. and note 317. to lib. 3. Co. Litt.

b Litt. sec. 701.

and contempt of the true owner. It was an open, exclu sive adverse entry and expulsion, whereas dispossession might be by right, or by wrong; and it was necessary to look at the intention, in order to determine the character of the act. These general principles seem to be admitted in all the more modern authorities, on each side of the Atlantic, on this subject, whatever difference of opinion there may be in the application of them.3

There were two kinds of disseisin, the one was a disseisja in fact, and the other a disseisin by construction of law. The latter could be created in many ways, without forcible and violent ouster, as by feoffment with livery, by entry under an adverse lease, or by a common recovery, or by levying a fine. Whether the disseisin was effected by actual expulsion, or by a constructive ouster, the legal consequences upon the title were the same. But the doctrine of disseisin by election, depending upon the pleasure of the true and injured owner, and whether, for the sake of the remedy, he would, or would not, elect to consider himself disseised, has been extensively applied to these disseisins in construction of law. It has led to a great deal of discussion and controversy between the adherents to the ancient and rigid doctrines of disseisin, and the advocates for the melioration of that theory in its adaption to the state of modern manners and improvements since the fall of the feudal system. The question on the

a Litt. sec. 279. Holt, Ch. J. Anon. 1 Salk. 246. Taylor v. Horde. 1 Burr. Rep. 60. Cowp. 689. S. C. William v. Thomas, 12 East's Rep. 141. Jerrit v. Weare, 3 Price, 575. Smith v. Burtis, 6 Johns. Rep. 147. Proprietors of Kennebec Purchase v. Springer, 4 Mass. Rep. 416. Proprietors v. Laboree, 2 Greenleaf, 283. Varick v. Jackson, 2 Wendell, 166. Prescott v. Nevers, 4 Mason's Rep. 326.

b If one tenant in common enters under a recorded deed upon land, claiming the entirety in fee, and exercises notorious and avowed acts of exclusive ownership, such acts of ownership amount to a disseisin of his co-tenants. Prescott v. Nevers, 4 Mason's Rep. 326.

efficacy of the ancient feoffment came into view, and led to enlarged discussion, in Taylor v. Horde ; and the writings of the distinguished property lawyers, such as Butler and Preston, have shed a great deal of light and learning upon the character and operation of that celebrated species of conveyance.

By the doctrine of the feudal law, no person who had less than a life estate was deemed a freeholder, and none but a freeholder was considered to have possession of the land. The possession of a termor for years, was the possession of the freeholder under whom he held, and who was exposed to lose the possession by the negligence or treachery of the termor. If he left it vacant, or permitted himself to be disseised, or undertook to alien it, or claimed a fee, or affirmed the title to be in a stranger, the freeholder lost the possession, which was nearly synonymous to freehold. The possession of the termor at will, or at sufferance, was equally the possession of the freeholder. Persons in possession, without any right as tenants by disseisin, deforcement, abatement, and intrusion, could also transfer the possession and freehold by livery of seisin. The livery operated upon the possession, and it could not be made by a person in possession without transferring the freehold. The transfer was of itself a feoffment, and no writing was required, and no greater estate in the feoffor than mere possession. When charters were introduced, it was the livery, and not the charter, that worked the transfer of the fee. The feoffment was originally required to be made in the presence of the peers of the lord's court, (pares curiæ,) and the entry of the feoffee was recorded in the lord's court. When this solemnity and notoriety were disused by the time of Henry II. the transfer lost much of its dignity and certainty.

The feoffment was supposed, by the Court of K. B., in

a 1 Burr. Rep. 60.

Atkyns v. Horde, to have lost, on account of that change, much also of its peculiar efficacy. But Mr. Butler does not accede to the accuracy of this opinion. The ancient efficacy of the feoffment was, that it created an estate of freehold, though none was in the feoffor at the time of the eoffment; and there is nothing, he observes, in the history of the English law, to show when and how it was lost. The doctrine in the time of Bracton was, that every person who had possession, however slender or naked that possession might be, as that of a tenant at will, or by sufferance, or a guardian; or however tortious his possession might be, as the possession of a disseisor or intruder, he was, nevertheless, considered to be in the seisin of the fee, and to be enabled by feoffment and livery to transfer it to another. The disseisor became a good tenant to the demandant's præcipe, and a freeholder de facto, in spite of the true owner. The same efficacy, by means of the pos. session in the feoffor, and livery of seisin to the feoffee, was imputed to the feoffment by Perkins, Coke, and others;* and the ancient doctrine, as it existed when Bracton wrote, has been continued to modern times, giving to the feoffment its primitive operation. Disseisins by elections are those acts which are no disseisins unless the party chooses to consider them to be such, and which are not in themselves disseisins. The disseisin which is produced by a feoffment, answers every description of an actual disseisin. Whether the feoffment be made by a person seised of an estate of freehold, or by a person having only the possession, as a tenant for years, at will, or by sufferance, the effect was the same. The disseisin gave to the feoffee against every person but the disseisee, an immediate estate of freehold, with its rights and incidents; so that the wife

a Bracton, lib. 2. c. 5. sec. 3, 4.

b Co. Lill. 48. b. 49. a. 2 Inst. 412, 413. Bullock v. Dibler. Popham, 38. Perkins, sec. 222.