possession in the common law - HiddenMysteries Information Central

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peaceably if he could: but this was in constant danger of being further reduced to a right of action. A right of
entry must be carefully distinguished from the right of physically manifesting an actual seisin or legal
possession. There was a still further distinction as to the forms of action available for a claimant who was ‘put
to his action.’ 3
It will be seen that seisin of land answers to possession of goods, ‘seisin in law’ to the immediate right to
possess goods which are neither in one’s own possession nor in the possession of anyone holding them
adversely, and a right of entry to the position of an owner of goods entitled to possess them when they are in
some one else’s hostile possession; while a disseisee put to his action under the old law may be likened to the
owner of chattels whose only remedy, for want of right to the immediate possession, is, or was, a special
action on the case. 4 But these latter distinctions are not exactly parallel in the case of land and of goods,
neither are their consequences the same.
The ancient and regular manner of transferring the seisin of land inter vivos was by livery, which may be
called a formal entry by the purchaser with the concurrence of the grantor. It is needless to repeat here the
descriptions of it to be found [51] in our classical books and elsewhere. 1 But it is to be observed that the
leading idea is the manifestation of an intent to transfer the de facto possession with as much particularity and
notoriety as the nature of the case requires or admits. Entry into every part of the land, or perambulation, is
needless: the grantor’s description and consent sufficiently shows the extent of what he means to part with;
but entry into some part in the name of the whole is dispensed with only where hostile possession makes it
practically impossible. The only fiction admitted in the common law is that which allows livery of one parcel
to suffice for all other parcels in the same county which are comprised in the same feoffment. 2
‘Livery in deed’ was when the feoffor delivered seisin on the land, ‘livery in law’ when he pointed out the
house or land and authorized the feoffee to enter. A livery in law may be perfected by entry at any time during
the joint lives of the feoffor and feoffee. 3 A deed or writing was not necessary at common law: 4 but it seems
to have been usual at all times since the twelfth century.
If the separation of seisin of the freehold from possession for a chattel interest had been logically carried
out, it might have been held that the possession of a tenant for years was indifferent to dealings with the
seisin, and that the freeholder might enter at reasonable times for the purpose of delivering seisin to a
purchaser, or completing his own seisin as heir. Such a view does indeed appear in a writing which is [52]
probably from Bracton’s hand. 1 But this was not accepted. It was held that on the one hand the possession of a
tenant for years made it impossible for seisin to be given without his concurrence while he was on the land,
and on the other hand his acceptance of a purchaser from the freeholder as his landlord (or, as it is properly
called, attornment) would complete the purchaser's seisin without any livery, and in the case of the freehold
passing by descent his possession at once, by operation of law, conferred ‘seisin in deed’ on the heir. ‘Where
there is no one in possession at the death of the ancestor, there must be an actual entry by the heir to give him
the seisin in fact. But when there is a tenant, his possession becomes that of the heir immediately on the death
of the ancestor’: and it makes no difference in this point though the tenant afterwards, under a mistake as to
the true title or otherwise, pay rent to a person not entitled. 2 This is a survival of the former conception of a
tenant for years as possessing alieno nomine, when ‘it was considered that the tenant was in the nature of a
bailiff or servant, and therefore that he took the esplees for the benefit of the owner of the freehold.’ 3 With
regard to attornment, it must be observed that the doctrine had been worked out in the case of freehold tenure.
A lord’s grant of services due from his freehold tenant requires attornment, in fact the attornment of the tenant
is needful to put the new lord in seisin of the services; though, by a fine distinction, he has not seisin in deed
of a rent until a payment has been made not merely in the name of attornment, but in the name and as parcel
3 Challis, R.P. 330; Butler on Co. Litt. 239 a.
4 See Donald v. Suckling, L.R. 1 Q.B. 585.
[51] 1 Bracton's accustomed methods are ‘per ostium et per haspam vel annulum,’ fo. 40 a, cf. 398 a. . Co. Litt. 48. Blackst. ii. 311, 315, 316. But Blackstone’s language
about ‘feodal investiture’ is misleading. And See Challis, R.P. ch. 28. The King, for special reasons, can neither give nor take livery of seisin. A grant by him is effected by
letters patent, one to him by deed enrolled or other matter of record: Plowd. 213 b.
2 Litt. s. 61.
3 Co. Litt. 48 b. The Roman lawyers went a step farther, allowing possession to pass by ‘livery within the view’ without any entry at all: D. 41. 2. de poss. 18, §2.
4 Co. Litt. 9 a, 121 b; Litt. ss. 61, 418. In the ‘Extenta. Manerii’ and elsewhere, free tenants are divided into those who hold ‘per cartam’ and those who do not.
[52] 1 Bracton’s Note Book, pl. 1290, vol. iii. p. 298.
2 Bushby v. Dixon, 1824, 3 B.&C. 298, 305, per Bayley J.
3 Littledale J., 3 B.&C. at p. 307.