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The result of this act was that generally all trace or remembrance of the relation of freeholder and lord passed away, except within the known precincts of a manor,, and. the freeholder became for practical purposes the owner of the soil.29

14. Tenure in the United States.

In all the colonies, the lands were granted to the colonial proprietors to hold in free and common socage; the services reserved consisting sometimes of a nominal rent, and sometimes there being merely the incident of fealty to mark the feudal relation.3 30 After the Revolution, the feudal position of paramount lord, previously occupied by the crown, presumably passed to the state with the other sovereign rights,31 since, as stated by a most competent authority, "it does not seem that so fundamental an alteration in the theory of property as the abolition of tenure would be worked by a change of political sovereignty. Tenure still obtains between a tenant for life or years and the reversion; and so, in like manner, it is conceived a tenant in fee simple holds of the chief lord,-that is, of the state."82 The same writer, however, enumerates a number of states in which, in view of the statutes or particular judicial decisions, tenure must be regarded as nonexistent.33 In this latter class of states, the statute of Quia Emptores is, of course, not in force, since, in the absence of tenure, the statute is

29 Digby, Hist. Real Prop. c. 39; 2 Bl. Comm. 76; Challis, Real Prop. 21.

80 1 Story, Const. Law, § 172; 1 Gray's Cas. 407, note.

81 Sharswood's note, 2 Bl. Comm. 78.

82 Gray, Perpetuities, § 22. Tenure is recognized by the statutes of Georgia (Code 1895, § 3051) and New Jersey (1 Gen. St. 1895, p. 879).

38 "In this condition are at least Connecticut, New York, Maryland, Virginia, Ohio, Wisconsin, West Virginia, Kentucky (?), Min nesota, California." Gray, Perpetuities, § 24.

meaningless. In the other states, however, where, as stated above, there seems good reason to assume the existence of tenure, this statute is probably in force, with the exception only of Pennsylvania and South Carolina, and consequently, except in those two states, all tenure, so far as existent, must be directly of the state.

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The theory of seisin, which at one time played a most important part in the English law of land, gave rise to rules which still exist as to the creation of estates, and this fact, together with the frequent reference to the subject in the older text books and decisions, renders a brief consid eration thereof desirable,35 though it can be regarded as a part of the law at the present day for but very few purposes.

36

Seisin primarily means possession,37 and for several centuries after the Conquest it was the only word known to the English lawyers capable of conveying this meaning. It was consequently applied at one time to the possession of chattels, as well as of land.38 Later it was applied only to the

34 Gray, Perpetuities, §§ 25-28.

35 "In the history of our law there is no idea more cardinal than that of seisin. Even in the law of the present day it plays a part which must be studied by every lawyer; but in the past it was so important that we may almost say that the whole system of our land law was law about seisin and its consequences." 2 Pollock & Maitland, Hist. Eng. Law, 29.

36 The law of seisin has still a bearing on the subjects of dower and curtesy. See post, §§ 180, 205.

87 The word, while suggestive to our minds, from its similarity to the word "seize," of the idea of violence, is in reality only distantly connected with the latter word, and is to be associated rather with the words to "sit" and to "set," with which it is also connected etymologically, and properly implies the idea of one being "set" on land, and thereafter sitting there in rest and quiet. 2 Pollock & Maitland, Hist. Eng. Law, 29.

2 Pollock & Maitland, Hist. Eng. Law, 32.

possession of land or of incorporeal things, and in this connection it came finally to be used only in reference to possession by one claiming a freehold estate; he being said to be "seised," while a tenant for years or at will was said to be merely "possessed." 39 The possession of the tenant for years or at will did not, however, exclude the idea of seisin in another; such possession being in fact regarded as being in behalf of the person claiming the freehold, the person "seised."40 Consequently "seisin," at least before the Statute of Uses (27 Hen. VIII. c. 10; A. D. 1535), may be regarded as meaning the possession of land by one having or claiming a freehold estate therein, either by himself or by another in his behalf.*1

Seisin might be either seisin "in deed" or seisin "in law." Seisin in deed was the actual possession, obtained by the actual and corporeal entry of the freeholder upon the lands, while seisin in law existed when an estate came to one by act of the law, as by descent, and he failed to make an entry thereon, it being, however, turned into seisin in deed in case he made such entry.42

After the Statute of Uses, for reasons connected with the construction of that statute as giving, under certain cir

Litt. 324; Co. Litt. 200b, 201a; Challis, Real Prop. 47.

40 Challis, Real Prop 181. "On the whole, we may say that the possession of land which the law protects under the name of a 'seisin of freehold' is the occupation of land by one who has come to it otherwise than as tenant in villeinage, tenant at will, tenant for term of years or guardian, that occupation being exercised by himself, his servants, guardians, tenants in villeinage, tenants at will, or tenants for term of years." 2 Pollock & Maitland, Hist. Eng. Law, 39.

41 2 Pollock & Maitland, Hist. Eng. Law, 32. The definition of seisin, frequently found, as being "the completion of that investiture by which the tenant was admitted into the tenure," more properly describes the "livery of seizin." See 12 Law Quart. Rev. 239.

42 Litt. § 448; Co. Litt. 266b, and Butler's note; 1 ise. Dig. tit. 1, 20; Challis, Real Prop. 180-183.

cumstances, seisin even "in deed," without actual entry on or possession of the land, seisin apparently acquired a different and broader meaning than before, and one was generally said to be "seised" if he had the legal estate, either in possession, or in remainder or reversion, provided it had not been turned into a mere right of entry, as where a wrongdoer obtained the actual possession.**

Disseisin.

From the mere seisin of land, independently of whether the seisin was rightfully acquired, certain rights accrued at common law to the person seised, and accordingly the effect of a disseisin, as the putting of a person out of possession and usurpation of his place was called, was frequently in question. The wrongdoer, or "disseisor,” while liable to be turned out by the rightful owner either by actual entry or by process of law, had in fact a defeasible title, and for many purposes acts done by him were as effectual as if he were what we would call the owner. person wrongfully ousted, the "disseisee," was considered to have a mere "right of entry," and this was lost by his failure to assert it in the proper way, and within the proper time, or before the seisin passed from the disseisor to another by alienation or descent.45

41 Cruise's Dig. tit. 11, c. 3, § 34. See post, § 88.

The

44 Goodeve, Real Prop. (3d Ed.) 364; article by Charles Sweet, Esq., in 12 Law Quart. Rev. 239, 247.

So late as 1878 it was decided in England that a devise of "all real estate of which I may die seised" did not cover land to which the testator was entitled, but which had been entered upon some years before by another person claiming title. Leach v. Jay, 9 Ch. Div. 42.

45 Litt. §§ 385, 414, 417, 422, 423, 592; Co. Litt. 239a, Butler's note; 3 Bl. Comm. 169 et seq.; Digby, Hist. Real Prop. 108.

The person disseised could exercise his right of entry by reentering on the land, or, in case he was forcibly prevented from re-entering, he could formally assert his claim near the land, and

(33)

Disseisin has an historical connection, at least, with what we now term "title by adverse possession," and will be hereafter referred to in the consideration of that subject."

16. Livery and grant.

The seisin, aa representing the freehold interest of the tenant, was at common law made use of for the purpose of a conveyance of such interest, the latter being in fact transferable only by a delivery of the possession of the land, called "livery of seisin." This livery of seisin was effected by the delivery on the land, "in name of seisin of the land," of a turf or twig (livery in deed), or by a statement made in view of the land to the effect that possession was given, followed by entry by the alienee (livery in law). This ceremony was usually accompanied by a deed or charter "of feoffment," as it was called, attesting the livery of seisin, and stating the purpose, nature, and extent of the transfer, the whole transaction being known as a "feoffment." 47

Since a feoffment operated merely by a transfer of possession, it resulted that it might be wrongfully made by one who was rightfully in possession in behalf of the owner of the freehold; and so a tenant for life or years, by a livery of seisin to another, could in effect disseise the owner

this assertion of claim, if repeated yearly, constituted what was known as "continual claim." If the disseisee failed to assert his right of entry either by re-entry or by continual claim, it was lost to him in case the disseisor died, the seisin then passing to the disseisor's heir, or, in case the disseisor aliened the fee, to the alienee, and in such cases the disseisee was com. pelled to resort to legal proceedings to assert his rights. See authorities supra. The student would do well to read 8 Bl. Comm. c. 10, treating of the various kinds of "ouster of the freehold," and remedies therefor at common law.

46 See post, §§ 436-444.

47 Litt. 859; Co. Litt. 48, 49; 4 Cruise, Dig. tit. 32, c. 1, § 18; 2 Bl. Comm. 315, and appendix I.; Thoroughgood's Case, 9 Coke, 136b, 1 Gray's Cas. 437; Digby, Hist. Real Prop. 145.

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