That livery of seisin may be made or taken by the deputies or attornies of the parties: and this livery by them is as good as that livery of seisin which is made by the parties themselves; and that also, as it seems, although the parties themselves be upon the land at the time of the making thereof, if they do not contradict it. Shep. Touch. 217.

For since a contract is no more than the consent of a man's mind to a thing, where that consent or concurrence appears, it were most unreasonable to oblige such person to be present at the execution of the contract, since it may be as well performed by any other person, delegated for that purpose, by the parties to the contract. Bac. Abr. Feoff. (E).

But an attorney cannot make a letter of attorney to another to give livery, unless he has an express authority for this purpose. Touch. 217. Pres. Ed.

II. That in the making of this livery care must be had, Shep. Pr. 221. Touch. 217.

1. That there be a deed or feoffment*; for otherwise a letter of attorney to deliver possession availeth nothing.

2. That there be a good letter of attorney in writing to warrant the making livery of seisin; and this may be either within the deed of feoffment itself, whether it be indented or pole; and this also, notwithstanding the attorney be no party to the deed; or the letter of attorney may be made in another, and by a separate deed of itself.

3. The attorney must in the doing of this pursue the authority given him by the deed, at least in the substance thereof.

Therefore, if a letter of attorney be made to two jointly, to

This is a proposition too general: for where a bargain and sale was made without any words of dedi et concessi to bargainee in fee, and in the indenture was a letter of attorney to make seisin, which was made accordingly; this was adjudged a good feoffment, well executed by the livery, notwithstanding the words of conveyance were only those of bargain and 1 Leon. 35.

sale.

make or take livery of seisin, and one of them alone doth it without the other, this is a void livery; but it is otherwise when it is made to two, jointly and severally, for then one of them alone may do it. Shep. Pr. 221. Touch. 218. So, if a letter of attorney be made to three jointly and severally, and two of them only make the livery, it is not good, because not pursuant to the authority; for the delegation was to all three or each of them separately: but if the third was present at the time of the livery, without doing or saying any thing, it is good. Dyer, 62 (a.) Shep. Pr.

221. Touch. 218.

4. It must be done in the lifetime of the parties; for it cannot be done after their deaths.

Ibid.

And if a letter of attorney be to make livery of seisin after the death of another man, and the attorney doth make livery of seisin during that man's life, this livery is void. Shep. Touch. 218.

5. The attorney must do it in the names of the feoffor, donor, or party who doth make the letter of attorney. Shep. Pr. 221.

6. He must in the making of it, as an attorney, do it after the same manner as the party himself is to do it.* Shep. Prec. 221.

7. That the livery of seisin that is made by a letter of attorney, must be a livery in fact, and not a livery in law; for a livery in law cannot be made by attorney: and, therefore, if a letter of attorney be to deliver seisin generally, and the attorney by virtue thereof deliver seisin in view, this livery of seisin is void; because his warrant is intended of an actual and express livery, and not of a livery in law. Co. Lit. 52. 2 Rol. Abr. 9. Shep. Pr. 220. Touch. 217.

[Immediately after the letter of attorney to deliver seisin, a covenant to levy a fine if requisite, a general warranty of

*For this see p. 279. supra.

title, as in p. 191 suprat, or the usual covenants for that purpose, and a covenant for the production of the title deeds, as in p. 200. if they are to be retained by the vendor, must be respectively inserted according to the General Precedent.]

After livery of seisin had and taken, either in person or by attorney, A MEMORANDUM thereof must be indorsed on the back of the deed in the following form:

BE IT REMEMBERED, that on the day and year first within written, peaceable and quiet possession and full seisin of the messuages, lands, tenements, and hereditaments within mentioned to be granted and enfeoffed to the within-named (purchaser) and his heirs, were openly had and taken by the within-named (vendor,) (or A B, if seisin be delivered by attor ney,) and by him (or) in the name of or for the said (vendor,) delivered to the said within-named (purchaser,) (or if seisin be taken by attorney,) to the with-named (attorney) in the name of and for the said (purchaser,) to hold the same unto and to the use of the said (purchaser) and his heirs, according to the purport and true intent and meaning of the withinwritten indenture, in the presence of us whose names are hereunto subscribed.

Or, in the case of a corporation, thus: BE IT REMEMBERED, that this day of in the year of our Lord --, peaceable and quiet possession and seisin of the freehold piece or parcel of ground and premises within mentioned to be granted and enfeoffed by the master, wardens, and society of to the mayor and commonalty and citizens of as within mentioned, was had, taken, and delivered by the within-named (A B) (one of the attornies for that purpose appointed) unto (CD) who is lawfully authorized to take and receive the same, to and for the use of the said mayor and commonalty and citizens of to hold the same unto and to the use of the said mayor, commonalty, and citizens of successors and assigns, according to the form and effect of the within-written indenture, in the presence of

their

+ A clause of warranty is usually added to a feoffment; but it is preferable to insert a covenant by the feoffor "for himself, his heirs, executors, and administrators," (see p. 273.)

CHAP. II.

OF A BARGAIN AND SALE.

289

A DEED of BARGAIN AND SALE is an instrument whereby the property of one thing is transferred to another, upon valuable consideration. Shep. Pr. 35. Touch. 221.

A bargain and sale is also termed a real contract on a valuable consideration for passing manors, lands, tenements, or hereditaments, by deed indented and inrolled within six months after the date thereof, without livery of seisin or attornment of tenants. 2 Inst. 672.

The operative words are bargained and sold; but the very words bargain and sale are not absolutely necessary to be used, but other words, as alien, grant, demise and grant, or the like words, may do as well; though according to Lord Coke it is good to make use of them, they being contained in the Statute. 2 Inst. 672. Shep. Pr. 35. Touch. 222. For the more perfectly shewing the effect of this deed, as relating to lands, these things are to be known:

I. All things for the most part that are grantable by any other way from one man to another, are grantable and may be transferred by way of bargain and sale from one to another; and, therefore, lands, rents, advowsons, commons, tithes, and profits of courts may be granted by way of bargain and sale in fee-simple, fee-tail, for life or years. Shep. Pr. 35. Touch. 222.

II. If the bargain and sale be of land, it must be indented, and it cannot be made by a deed poll. Shep. Pr. 35.

Touch. 222.

III. A bargain and sale differs from the covenant to stand

U

seised to uses which may be in consideration of love, marriage, friendship, good-will, or the like; for here it must be in consideration of money or money's worth. There must be some good and valuable consideration in money or money's worth, as a horse or the like, given or expressed to be given for the land; and, therefore, a bargain and sale made for divers good considerations, or for great aad valuable considerations, or in consideration that the bargainee is bound for the bargainor, and for divers other good causes; these are not good conveyances. Shep. Pr. 35. Touch. 222. 2 Black Com. 333.

However, if in these cases there be money or other good consideration actually given, although it be not expressed upon the deed, the bargainee may aver it; and being proved, the bargain and sale will be good. Touch. 223. (a.) Mildmay's case, 1 Co. 25.

Dyer, 146

And if the deed make mention of money or other consideration paid, as in consideration of £100, or even 10s. only, as a nominal consideration, and in truth no money is paid, yet the bargain and sale is good, and no averment will lie against this, which is expressly affirmed by the deed. Shep. Pr. 35. Touch. 222. 2 Black. Com. 333.

So, if the deed mention and say, for a certain sum of money, or for a certain competent sum of money; these are good considerations. Ibid.

IV. In a bargain and sale, as well as in a covenant to stand seised to uses, there must be a person to stand seised; and, therefore, in the case of a corporation* some other mode should be adopted, namely, a feoffment, or lease and release: for there must be an estate in the bargainor, of which he has the seisin; as of an estate of freehold in possession, reversion, or remainder; and there must be a person capable of taking the use. Watk. Prin. 202, 203.

V. There must be an enrolment of the deed, where any