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a feoffment. But this loose usage is due to the fact that in one age a feoffment means in law something different from another.95 In later times it came to denote the "charta feoffamenti," rather than the legal act recorded in the deed itself.

A feoffment was at first confined to the transfer of a fee only and not used to transfer a life estate.9 96 It might be a formal oral grant: "I give thee and thy heirs to hold forever black acre" was probably a sufficient form of feoffment at common law. But a feoffment, without livery of seisin, was incomplete and ineffectual.97 Mr. Challis was of the opinion that a feoffment and livery were one and the same thing.98 In this opinion this distinguished and usually most accurate lawyer does not coincide with other late writers.99 A written charter, or deed of feoffment, at an early date seems to have been used simply to record the transaction, and was, therefore, usually expressed in the past tense.1 At a subsequent date, livery was frequently made secundum formam carta, and the deed is then called a charter of feoffment.2 On the written charter the witnesses then customarily indorsed the fact that they had witnessed livery of seisin. But the charter and indorsement were only modes of preserving evidence and not the conveyance itself. Not until ancient did a charter become a sort of Scotch, or hearsay, evidence, provided it was not suspicious on its face.* Chancellor Kent thought that the mode of conveyance by feoffment with livery of seisin was not used in New York. But opposed to his opinion is the fact that certain early charters at Albany bear an indorsement of livery of seisin. This profound lawyer is also clearly wrong in his statement that this mode of conveyance was then obsolete in England, as persons since, even in our own times, have taken part in that country in this form of conveyance.

94 Reeve, Hist. Com. Law, 338. 95 See Introduct. p. 24, supra. 96 Co. Litt. 9a.

97 Challis, 321; Co. Litt. 48a; Crabb, Hist. Eng. Law, 387.

98 Challis, Real Prop. 321. 99 2 Black. Comm. 310, 311; Litt., 70; Co. Litt. 9a, 56b; Smith, Real & Pers. Prop. 514; Shep. Touch. 203; Crabb, Hist. Eng. Law, 387.

1" Has conveyed, enfeoffed," etc. Bracton, lib. 2, cap. 16, fol. 34b.

22 Gilbert, Uses, 2, 3; Strahan, Prop. 230; Co. Litt. 48a; I Reeve, Hist. Com. Law. 338.

3 See Wigmore, 4 Col. Law Rev. 343 seq.

4 Our doctrine of ancient deeds corresponds to the Scotch law which, however, admits hearsay evidence in all cases when it is not suspicious.

54 Kent, Comm. 489; cf. Chancellor Walworth to the contrary, Rogers v. Eagle Fire Ins. Co., 9 Wend. 611, 622.

64 Kent, Comm. 489.
7 Challis, 321.

Livery of Seisin. Livery of seisin (which presumably corresponds with "traditio," or delivery of possession, in the Roman Law) was the primary element of a freehold at common law. It is called the "investitive fact "9 in the common law.10 Originally the act of feudal investment,11 livery of seisin finally became in law the ultimate sign of a perfected transfer inter vivos of title to a freehold estate.12

When Written Deeds Became Necessary to Conveyance of Lands. Precisely when deeds became essential in English law to the transfer of freeholds is not certain. Yet the use of deeds or charters is more ancient than the feudal settlement in England. But from the Conquest, certainly until the Statute of Inrolments,13 a writing was not necessary to the legal transfer of freeholds.14 Yet during all this period written deeds were commonly used for the preservation of evidence or for the purpose of recording the transaction. The Statute of Uses 15 brought into practice as legal conveyances deeds of bargain and sale, and by the mere operation of that statute the legal estate of a grantor was transferred to the bargainee.16 Then came the Statute of Inrolments. No ceremony was made necessary by the Statute of Inrolments to such bargain and sale, and, therefore, both livery of seisin and attornment were superseded by it.17 To prevent secret conveyances the Statute of Inrolments18 required deeds of bargain and sale to be enrolled. This was virtually to require a writing, at least for this species of conveyances.19

But the common-law conveyance by feoffment with livery of seisin, continued legal, and, indeed, essential to make a perfect disseisin in some cases,20 and to such mode of conveyance no writing was necessary until the Statute of Frauds.21 A deed was still

8 Cf. Digby, Hist. Real Prop., § 12, chap. II; Spence, Eq. Jurisdic. 33. 9 Bisset, Estates for Life, 13. 10 See above, p. 24.

111 Black. Comm. 311; Sparrow v. Kingman, 1 N. Y. 242, 250.

12 There were two kinds of livery of seisin livery in deed and livery in law. See Co. Litt. 48a.

13 27 Hen. VIII, chap. 16.

14 Shep. Touch. 203; Co. Litt. 48a, note; 4 Col. Law Rev. 343; Williams on Seisin, 148.

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17 2 Sanders, Uses & Trusts, 42. 18 27 Hen. VIII, chap. 16.

19 Note 310, Co. Litt. 48a; Strahan, Prop. 224; 4 Col. Law Rev. 351.

20 Sparrow v. Kingman, 1 N. Y. at pp. 250, 251; McGregor v. Comstock, 17 id. at p. 171; Varick v. Jackson, 2 Wend. 158, 203; Shep. Touch. 203; Strahan, Prop. 231.

21 29 Car. II, chap. 3. Unless in writing feoffment with livery under this statute could create only an estate at will, determinable by feoffor. Co. Litt. 56b.

unnecessary to satisfy that statute; any writing would do.22 If the writing were a deed it need not be signed; sealing and delivery sufficed. The English Statute of Frauds did not, however, extend to New York, being enacted only after the English law was established here.24 But the Duke's Laws, established in New York in 1664-5, required a conveyance to be by deed.25 Of late years and after "Independence" sufficient attention has not been paid to this very interesting statute.

In 1683,26 and in 1684,27 the Legislature of New York required deeds of conveyance to be acknowledged and recorded before they had legal effect as to third persons. At a later day the English Statute of Frauds28 seems, however, to have been extended here by judicial legislation,29 and in 1787 it was revised and formally reenacted in Jones & Varick's revision,30 and so passed into the Revised Statutes.31 Thus, until the Revised Statutes, conveyance by feoffment with livery of seisin was valid, but it must have been accompanied by a deed to comply with the local statute or with the Statute of Frauds. As late as 1827 a conveyance by feoffment with livery of seisen was made in New York by a Mr. Edgerton Winthrop. It was, of course, accompanied by a deed to satisfy the Statute of Frauds.32 In 1830 the Revised Statutes abolished altogether this form of conveyance.33

Written Conveyances. The law regulating written conveyances in this State is now largely embodied in the next succeeding section of this act.34

22 Prest. Shep. Touch. 203; 4 Col. Law Rev. 350, 352.

23 I Prest. Abst. of Title, 236; Challis, Real Prop. 327; Prest. Shep. Touch. 56b; 3 Prest. Abst. of Title, 61; 1 Sugd. Pow. 304; Smith, Law of Contracts, note a, discussing recent English cases.

24 Burton, Compend. Real Prop. 499; cf. Cahill Iron Works v. Pemberton, 30 Abb. N. C. 450.

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27 "A bill to prevent deceipt and fforgerye," 1 Col. Laws of N. Y. 148. 28 29 Car. II, chap. 3.

29 Preamble to chap. 1678, 5 Col. Laws of N. Y. 689.

30

2 J. & V. 88; cf. Cahill Iron Works v. Pemberton, 30 Abb. N. C. 540.

31 Supra, under § 242, Real Prop. Law. 32 McGregor v. Comstock, 17 N. Y. 162, 164, 171.

33 See above, I R. S. 738, § 136; § 241, Real Prop. Law; Moore v. Littel, 41 N. Y. at p. 78; Archer v. Eckerson, 10 App. Div. 598, 601. 34 § 242, Real Prop. Law.

§ 242. When written conveyance necessary. An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, can not be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. But this section does not affect the power of a testator in the disposition of his real property by will; nor prevent any trust from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by a writing subscribed by the person declaring the same.

Formerly section 207, Real Property Law of 1896, chapter XLVI, General Laws:

§ 207. When written conveyance necessary. An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or 'in any manner relating thereto, can not be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. But this section does not affect the power of a testator in the disposition of his real property by will; nor prevent any trust from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by a writing subscribed by the person declaring the same.35

Section 207 was formerly 2 Revised Statutes, 134, section 6, and 2 Revised Statutes, 135, 'section 7, and 2 Revised Statutes, 137, section 2:

§ 6. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.36

§ 7. The preceding section shall not be construed to affect in any manner, the power of the testator in the disposition of his real estate, by a last will and testament; nor to prevent any trust from arising, or being extinguished,

35 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, $ 460.

36 Repealed, chap. 547, Laws of 1896.

by implication or operation of law; nor to prevent, after a fine37 shall have been levied, the execution of a deed or other instrument, in writing, declaring the uses of such fine. (Amended by chap. 322, Laws of 1860, by inserting the words "Nor to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same.") 38

§ 2. Every grant or assignment of any existing trust in lands, goods or things in action, unless the same shall be in writing, subscribed by the party making the same, or by his agent lawfully authorized, shall be void.39

Conveyances to be in Writing. This section belongs strictly to the famous "Statute of Frauds." The history of the various statutes requiring conveyances of lands to be in writing has been outlined under the preceding section of this act,40 and need not be repeated. Statute of Frauds. When Jones & Varick came to revise for reenactment the English Statute of Frauds 41 in 1787, they did not depart far from the phraseology of the original statute.42 They, however, consolidated into one act the Elizabethan statutes 43 against fraudulent conveyances and the act of Charles II for the prevention of frauds and perjuries called the "Statute of Frauds." 44 Section 9 of 2 Jones & Varick, 88, corresponded to sections 1 and 2, 29 Charles II, chapter 3; section 10 of 2 Jones & Varick, to section 3, 29 Charles II, chapter 3; section 11 of 2 Jones & Varick, 88, to section 4, 29 Charles II, chapter 3; section 12 of 2 Jones & Varick, 88, to section 7, 29 Charles II, chapter 3; section 13 of 2 Jones & Varick, 88, to section 8, 29 Charles II, chapter 3; section 14 of 2 Jones & Varick, 88, to section 9, 29 Charles II, chapter 3.45 The subsequent revisions in New York in 180246 and 181347 preserved the language of Jones & Varick's edition of the English Statute of Frauds. The Revised Statutes48 somewhat altered the language of that great statute while preserving the sense.49

Derivation of New York Statute. Section 242 of the Real Property Law is composed of sections 6 and 7 of 2 Revised Statutes, 134,

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