INTRODUCTION.

THE great object sought in the transfers of real estate among all nations appears to have been NOTORIETY, and this was acquired either by actual entry and seizin of the land with intent to possess it, or by a symbolical delivery of possession. Of this latter method, we find a cu rious instance in the early history of the Jews. "Now this was the manner in former time in Israel concerning redeeming and concerning changing, for to confirm all things; a man plucked off his shoe, and gave it to his neighbor; and this was a testimony in Israel." (1) The ancient Goths and Swedes had a similar practice, in which a clod of earth was cast into the extended cloak of the buyer, in the presence of witnesses, and a staff, after passing through their hands, was delivered by the seller to the purchaser. And later still, among the Saxons, this symbolical possession was obtained, by the delivery of a turf, twig or latch of the door, in the presence of the neighboring freeholders. This latter mode of obtaining seizin was undoubtedly in the mind of William the conquerer, when he landed on the shores of England in the bay of Pevensey. It is related that he had hardly reached the shore, when he stumbled and fell on the palms of his hands, and that his superstitious followers, struck with dread at this bad omen, exclaimed, "Mal signe est ci!" But the prince, springing upon his feet, said with the greatest presence of mind, "No! I have taken seizin of the country." Whereupon one of the soldiers ran to a neighboring cottage, and pulling away a portion of the thatch, presented it to the Duke, bidding him receive that symbol also, as the seizin of the realm which he was about to possess.

Although it was the custom to record the transaction in writing, (2) (1) Book of Ruth, c. 4, v. 7. 2 Blacks. Com.

(2) The following grant by William the First to the ancestor of the Hopton family in England, is to be found in Stow's Chronicle and is curious from its

yet it was the symbolical delivery, which constituted in the eye of the law, the real transfer. "In fact, in many instances, after the conquest," says Ingulphus, "no writing at all was used, and many lands and estates were collated or bestowed by bare word of mouth, only with the lord's sword, or helmet, or a horn or cup; and very many tenements with a spur, with a curry-comb, or with a bow and some with an arrow." "We may see," says Selden, "the conveyance of estate how easy it was in those days, and clear from the punctillios of law, and withal, how free from the captious malice of those pettifoggers who would entangle titles and find flaws in them, and burn the swelling bundles and rolls of parchment now in use." (1)

Soon however it became convenient and desirable to avoid this notoriety, and a method was invented, by which the legal right to the property and the beneficial interest in the same were separated, so that while, de jure, the legal title stood in the name of one person, yet, de facto, the beneficial interest belonged to another. As the courts of common law would take no notice of such an arrangement as this, and looked upon the legal owner as the real owner, the beneficiary had nothing to depend upon, but the probity of the trustee, and if this failed him, he had no remedy. It seldom happened, however, that he suffered in this way, for according to Mr. Justice Manwood, (2) men were then of better consciences than now they are," and the beneficiaries had but little occasion for remedies, even had they

antiquity and quaintness. It would be difficult for a modern conveyancer in that country, to give his ponderous "acre of parchment" the grace of verse.

"From me and from myne, to thee and to thyne,
While water runs, and the sun doth shine;

For lack of heyrs to the king againe,

I, William, king, the third year of my reign,

Give to the Norman Hunter,

To me that art both Live and Deare,

The Hoffe and Hoptoune,

And all the bounds both up and downe,

Under the Earth to Hell

Above the Earth to Heaven,

From me and from myne

To thee and to thyne

As good and as fair,

As ever they myne were,

To witness that this is sooth,

I bite the white wax with my tooth,

Before Jugg, Marode and Margery,

And my third son Henry;

For one bow and broad arrow,

When I come to hunt upon Yarrow."

It will be observed in examining this singular relic of other days, that nearly the same material is contained therein, as in the common quitclaim deed among us. It is not probable that the word "give" implied a warranty in those

days.

(1) Opera, Vol. 2, p. 1001.

(2) Brent's case, 2 Leon, 15.

existed. In fact, in the ancient deeds of use, no use was declared to the beneficiary, but the purchase ran to two or three joint feoffees, and he who was first named was the cestui que use, and the others but the feoffees to uses, or trustees in his behalf. (1)

The Court of Chancery, however, ere long interfered, and in the reign of Edward III., the writ of subpoena was invented, by which that court got the control of the trustee, and was enabled to compel him, when necessary, to perform his duty. The necessity of such powers in the Court of Chancery was not so apparent then as it has appeared since; for it was stated by Sir Edward Coke in the House of Commons, in 1621, that nearly one hundred years after the invention of this celebrated writ, in the reign of Henry VI., the yearly number of subpoenas issued out of Chancery amounted to only four hundred : while two centuries later, in the reign of James I., not less than thirtyfive thousand was the yearly proportion.

Owing to the abuse of conveyances to uses, the stat. of Richard II. ch. 3, provided that the beneficiary should have the power to convey not only his use, but also the legal estate. Still this statute proved inadequate to remedy the evil, for it did not deprive the legal owners of their right to convey, so that the property was often sold twice over. Then came the famous statute of 27, Henry VIII. ch. 10, called the Statute of Uses, which in the end worked a most important and striking change in the law, and made an era in the history of our jurisprudence, which cannot be too highly appreciated. The well known effect of this statute, and the interpretation of it made by the Judges, have caused much comment and speculation, and notwithstanding the declaration of Lord Hardwicke, in Davenport v. Oloys,(2) that it has had no other effect than to add at most, three words to a conveyance, it altered the whole system of real transfers.

This statute was soon followed by the Statute of Enrollments,(3) which was intended to give notoriety to that species of conveyance, technically called Bargain and Sale. Bargain and Sale grew out of the statute of uses, and was invented to avoid that notoriety in the transfer of real property which the law was anxiously endeavoring to uphold. Before this statute, a mere agreement for a valuable consideration, for the conveyance of land, was sufficient to raise a use, and this use the bargainor was in equity found to perform ; and as the use was not recognized by the law, no legal solemnities were necessary to give it effect. The Statute of Enrollments required every such contract as to freehold property to be a sealed instru(1) Brent's case, 2 Leon, 15. (2) 1 Atk. 591. (3) 27 Henry VIII., ch. 16

ment, and to be enrolled in the Court of Chancery.(1) But not extending this provision to terms, the celebrated species of conveyance known in the profession as Lease and Release, was invented, by which a bargain and sale for one year, of the land, was made for a nominal consideration, and the statute of uses executing the use, the lessee was competent to receive from the seller, a release of all his interest in the same. The validity of this instrument, though doubted by some,(2) has remained unshaken, to the present day, and continued in frequent use in New York until the year 1788, when owing to a revision of the statutes of that state, it fell immediately into total disuse, and will never be revived. (3) The inventor of this instrument was Sir Francis Moore, who at the instance of Lord Norris contrived it," to the end that such of his kindred should not take notice by any search of the public records, what conveyance or settlement he should make of his estate." The possession in law, acquired under instruments of this kind, though in most respects equivalent to actual and corporeal possession, was not so effectual to all intents and purposes, for trespass could not be maintained by the purchaser, without actual entry. (4)

Thus, briefly, stood the law, when our single-hearted ancestors emigrated and settled the colony of Massachusetts Bay. In reviewing even the rapid and imperfect sketch given above of the rise and progress of conveyancing, one cannot but be struck with the great ingenu. ity at all times shown in baffling the object of the remedial statutes, so to speak, and which finally enabled the necessities and requirements of man to triumph over the most insuperable obstacles. Never was the maxim, that "necessity is the mother of invention," more clearly illustrated than in the history of our jurisprudence, and prolonged as was the struggle between legislative power, and professional ingenuity and skill, the former was finally obliged to succumb, failing in a pursuit where, from its creative and disabling power, it had nearly all the hope of success.

The course almost immediately adopted by our ancestors, upon their emigration, with regard to real transfers, proved that they were "wiser in their generation than the children of light." In 1634, under

(1) We find here the origin of acknowledgments of deeds; for in order to avoid the enrollment of fictitious conveyances, the officer, who had charge of this duty, required the acknowledgment by the grantor, that the instrument presented for enrollment, had been in fact executed. 4 Mass. R. 543; Godbolt, 270.

(2) Lord Chief Justice North, in Barker v. Keat, 2 Mod. 249, 5th ed. said that Mr. Noy thought the conveyance by lease and release could never be maintained without actual entry by the lessee. (See 2 Mod. Rep. 252.) (3) 4 Kent's Com. p. 494.

(4) Lutwich v. Milton, Cro, Jac. 604,

the colonial charter, an ordinance was passed relating to houses and lands, requiring the constable and four more of the chief inhabitants of each town, to be chosen by all the freemen therein, to make a survey of all lands improved or inclosed, or granted by special order of the Court, and to enter the same in a book, with the several bounds and quantities, fairly written, and to deliver a transcript thereof within six months next ensuing into the court; and this is declared to be a sufficient assurance to every free inhabitant, his heirs and assigns, of such estate as he shall have in the same. The like course was ordered as to such lands and tenements as should be thereafter enfranchised. And every sale or grant of such houses or lands was to be entered into the same books by the constable and his assistants.

In 1641, when the settlement was organized, and counties and county courts formed, an ordinance was passed directing the clerk of the County Court to act as Register, and to record all changes in the ownership of land, the names of the grantors and grantees, and the estate granted, together with the date of the transaction. At the same time it was provided that all grants, sales, and mortgages of lands where the grantor remains in possession, should be good only as against the grantor and his heirs, unless the same were acknowledged (1) and recorded. Afterwards, in 1651, another ordinance declared that no alienation of land should be good, except by deed executed with livery and seizin, unless the same be acknowledged and recorded. Thus under the Colonial Charter, if the grantor remained in possession, the conveyance was good only as against himself and heirs, unless it was by deed acknowledged and recorded; and where the purchaser entered into possession, the deed was to be executed with livery and seizin, or what was considered as effectual, by deed acknowledged and recorded.

When the Colonial Charter was repealed, and the Provinces of Ply. mouth and Massachusetts Bay were united under a new charter, the registry of the conveyances of lands, was again taken into consideration, and the old provisions of the law, in some degree, modified. By the 9 William III, c. 48, it was enacted that no conveyance of land should be good against any person other than the grantor, and his heirs, unless the deed was acknowledged and recorded, and by this act livery of seizin was virtually abolished. (2) The provisions in that statute continued in force until the Revolution; it was reenacted by Stat. 1783, c.

(1) At first deeds were acknowledged before the Register or some magistrate, for a justice of the peace was an officer not known under the first char

ter.

(2) This perhaps is stating the matter rather strongly; for, as a right of entry cannot be conveyed, a feoffment with livery of seizin, by a disseisee, would no doubt be effectual to pass a good title.