person enters into land without title, and claims a fee, he is a disseisor, and acquires a seisin in fee. So, if a termor makes a feoffment, he gains a freehold by disseisin. The great struggle which commenced with Lord Mansfield, between the courts at Westminster, and the adherents of the ancient consequences of a feoffment, is that the latter are tenacious of holding the feoffment to its primitive operation, by which it passed a fee, by wrong as well as by right, and disseised the true owner; whilst the former are disposed to check, as much as possible, the application of the unreasonable and noxious qualities of the feoffment, and confine its operation within the bounds of truth and justice. The doctrine in Taylor v. Horde was, that if a tenant for life or years should make a feoffment, the lessor might still elect whether he would consider himself disseised; and that, except in the special instance of a fine with proclamations, there was no case in which the true owner might not elect to be deemed not disseised, provided his entry was not taken away. In Jerritt v. Weare," the court of exchequer were disposed to follow the spirit of the case of Taylor v. Horde, and disarm the doctrine of disseisin of much of its ancient severity, and formidable application. They adopted the doctrine in Blunden v.

Baugh, that whether there was an actual dis*487 seisin or not depended upon the character and intention of the act. A lease for years to a stranger, by a tenant at will rendering rent, was held, in the case from Croke, to be a disseisin only at the election of the owner; and, in the exchequer case, a lease by a stranger, and entry under it by the lessee, was put upon the same ground. Every disseisin is a trespass, but every trespass is not a disseisin. A manifest intention to oust the real owner must clearly appear, in order to

3 Price's Ex. Rep. 575.

Cro. C. 302.

raise an act which may be only a trespass to the bad eminence of disseisin.

In Goodright v. Forester, the court censured and condemned the ancient doctrine of estates arising by disseisin, as they did also in Jerritt v. Weare. The opinion of Lord Mansfield received still more decided confirmation by the unanimous decision of the K. B., in Doe v. Lynes. It was there held, that a feoffment did not operate to destroy a term for years, when made without the consent of those who had the term. Lord Tenterden declared, that there was so much good sense in the doctrine of Lord Mansfield, that he should be sorry to find any ground for saying it could not be supported. A feoffment by a stranger would be void, if there was a lessee for years in possession, who did not assent to it. To attempt to turn a term into a wrongful fee with all its inequitable consequences, by the old exploded notion of the transcendant operation of a feoffment, was pointedly condemned. The nature of a feoffment and disseisin were said to be materially altered since Littleton wrote. The good sense and liberal views which dictated the decision in Taylor v. Horde, seem to have finally prevailed in Westminster Hall, notwithstanding the strong opposition which that case met with from the profession. The courts will no longer endure the old and exploded theory of disseisin. They now require something more than mere feoffments and leases, to work, in every case, the absolute and perilous consequences of a *disseisin in fact. Those acts *488 are a disseisin only at the election of the real owner, and are not, in all cases, absolutely and inevitably so. It will depend upon the intention of the party, or it will require overt acts that leave no room to inquire about intention, and which amount to actual

1 Taunt. Rep. 578.

3 Barnw. & Cress. 388.

ouster in spite of the real owner. Mr. Preston, in his discussion of titles under seisin and disseisin, adheres to the strict doctrines of the old common law; and he severely condemns the judgment in Taylor v. Horde, as "confounding the principles of law, and producing a system of error." Mr. Butler, also, though more temperately, and more ably, attacks its conclusions while he admits the case was decided with much ccnsideration, and infinite ability. These writers serve, at least to show the spirit of free inquiry, and of uncompromising hostility to innovation, which animates the English property lawyers, and impels them to stand watchful and intrepid sentinels over the ancient jurisprudence. While we admire their independence and patriotism, we think it would be deeply to be lamented, if we were obliged, at this day, to call into practice the extravagant consequences of disseisin, after feudal tenures, and the assurance by feoffment itself, and the reasons which gave such tremendous effects to disseisins, had all become lost and buried in oblivion.b

• Preston on Abstracts, vol. ii. 279–296.

I presume Mr. Preston to be the same counsel who argued the cause of Goodright v. Forester, in the exchequer chamber, in 1809. 1 Taunt. Rep. 578. In that case, Sir James Mansfield, in delivering the judgment of the court, observed, that if the doctrine of estates arising by disseisin was such as had been stated by Mr. Preston, he should lament that the law was such. "Our ancestors," he observed, "got into very odd notions on these subjects, and were induced, by particular cases, to make estates grow out of wrongful acts." It is presumed that Mr. Preston is also the same counsel who argued the cause of Jerritt v. Weare before the court of exchequer, in 1817. 3 Price's Ex. Rep. 575. In that case, Baron Graham, in delivering the opinion of the court, observed that the principle of the decision in Taylor v. Horde, rested on a foundation not to be shaken; and he spoke with even reprehensible harshness of the effort to revive the old doctrine of disseisin in its unmitigated force. Mr. Preston was not dismayed nor diverted from his opinions by that decision; and he says, in the preface to his third volume on Abstracts of Title, that he has stated his propositions on disseisin, though that decision was before him, with the fullest conviction of their accuracy. It is presumed farther, that Mr. Preston is the same person who, as counsel, once

*In this country, the decision of Lord Mansfield has not met with entire approbation; and the late and learned Chief Justice Parsons declared, that his lordship had not gone to the bottom of the matter, and had puzzled himself unnecessarily. I cannot acquiesce in the accuracy of this censure; and it appears to me, that Lord Mansfield gave to a disseisin, founded on the operation of a feoffment, as much efficacy as it was entitled to receive, in this improved age of the English law.a

The conveyance by feoffment, with livery of seisin, has long since become obsolete in England; and though it has been, in this country, a lawful mode of conveyance, it has not been used in practice. Our conveyances have been either under the statute of uses, or short deeds of conveyance, in the nature of the ancient feoffment, and made effectual, on being duly recorded, without the ceremony of livery. The New-York Revised Statutes have expressly *abolished the *490 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.c

more brought up and enforced his tenacious opinions on the efficacy of feoffment working a disseisin, and creating a wrongful fee; and the K. B., in Doe v. Lynes, (3 Barnw. & Cress. 388,) very peremptorily rejected them. His views on this subject, as laid down in his treatises on property, may therefore be considered as essentially expelled from Westminster Hall.

It is to be regretted, that the learned judge, who delivered the opinion in Prescott v. Nevers, (4 Mason's Rep. 326,) did not then find a proper occasion to investigate the subject of disseisin at large, upon which, he says, he had bestowed his researches at an early period of his professional life. There is no person living who would have done more complete justice to the subject; for that eminent judge never handles a question on any part of the science of law without examining it in all its relations, with equal candor and freedom, and fervor and force, and leaving it completely exhausted. Vol. i. 738, sec. 136. See, also, post, 496, note.

• Revised Laws of Illinois, edit. 1833. Perry v. Price, 1 Missouri Rep. 553. In South Carolina feoffment with livery of seisin is still a valid and

(2.) Of grant.

This was a common law conveyance, and applied to incorporeal hereditaments, such as reversions, rents, and services; and not being of a tangible nature, and existing only in contemplation of law, they 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. 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. Feoffment and grant were the two great disposing powers of transfer of land, in the primitive ages of the English law.

To render the grant effectual, the common law 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. It arose from the intimate alliance between the lord and vassal existing under the feudal tenures. The tenant could not alien the feud without the consent of the lord, nor the lord part with his seignory without the consent of the ten#491 ant. The necessity of the attornment was partly

subsisting mode of conveyance, and if made by the tenant for life of the legal estate, will bar all contingent remainders. Dehon v. Redfern, Dudley's Eq. Rep. 115. So, also, in Connecticut, a feoffment is a valid conveyance without the formality of livery of seisin. Bryan v. Bradley, 16 Conn. Rep. 474.

■ Co. Litt. 9, b. 172, a.

Litt. sec. 608, 609.

• Wright on Tenures, 171. Mr. Butler, in his note 272, to Co. Litt. lib. 3, while he admits that this doctrine formerly prevailed in England, says, that it did not prevail to an equal extent on the continent; and the lord might transfer his whole fee, without the consent of the vassal; and the vassal became, by such transfer, the tenant of the new lord. Mr. Hallam, in treating of the feudal system, on the continent, during the middle ages, passes