NOTES OF THE AMERICAN EDITOR TO CHAPTER XIX. (55) Title by alienation, page 287. Title by alienation, according to Blackstone, comprises any method wherein estates are voluntarily resigned by one man and accepted by another. In this sense it comprises title by devise as well as by deed and by matter of record. (Ch. 20, 21.) Washburn prefers to classify titles by grant, excluding devises (or in other words alienation inter vivos), and embraces therein titles by public grant and office grant, which do not come within Blackstone's definition. His divisions are three: (1) Public grants, or titles derived to an individual from a state or the United States. (2) Office grants, or conveyances made by some officer of the law to effect certain purposes, where the owner is either unable or unwilling to execute the requisite deeds to pass the title. (3) Private grants, or conveyances from one individual to another. General references: 4 Kent Com. Lect. 67; 3 Washburn, ch. 3, 4, 5, pl. 162-424 (top); 2 Hilliard's Real Property, ch. 79-89, inclusive; Cruise's Digest, tit. 32, occupying all of vol. 4; Walker's Am. Law, Lect. 31, pp. 369–413; Digby's Hist. of Real Property Law, ch. 10, 21, pp. 321337; Deane on Conveyancing; Wharton on Conveyancing; Sugden, Dart, Hilliard, on the Law of Vendors and Purchasers of Real Estate. (56) That a man shall not stultify himself, page 292. The rule that a man shall not avoid his own deed or other act done in a condition of insanity seems never to have been adopted by the ecclesiastical courts (Turner v. Meyers, 1 Hagg. Ecc. 414), and is now entirely rejected alike in England and in this country. (See 4 Kent Com. 451.) CHAPTER THE TWENTIETH. OF ALIENATION BY DEED. In treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, it's requisites; and, thirdly, how it may be avoided. I. *First then, a deed is a writing sealed and delivered by the parties.a* It is sometimes called a charter, carta, from it's materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, кar' e§oɣny, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore †a man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemnly and deliberately avowed. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium,9 but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet a Co. Litt. 171. b Plowd. 434. 9 Ninth edition inserts, "like the teeth of a saw." **Quoted, 63 N. C. 457; 16 N. J. L. 332; 25 N. J. L. 660. Cited, 33 Me. 346; 1 Hayw. (N. C.) 114; 4 Fla. 216. +-+ Quoted, 1 Serg. & R. 442. 399; 1 Ala. 255; 1 Blackf, 131. Smith (N. H.) 347. Cited, 1 Pen. & W. 407; 21 Am. Dec. written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on [296] one part and half on the other. Deeds thus made were denominated syngrapha by the canonists; and with us chirographa, or hand-writings; the word cirographum or cyrographum being usually that which is divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose, than to give name to the species of the deed.* When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed. II. We are in the next place to consider the requisites of a deed. The first of which is, † that there be persons able to contract and be contracted with, for the purposes intended by the deed; and also a thing, or subject matter to be contracted for; all which must be expressed by sufficient names.' So as in every grant there must be a grantor, a grantee, and a thing granted ; in every lease a lessor, a lessee, and a thing demised.‡ c Lyndew. l. 1. t. 10. c. 1. d Mirror. c. 2. § 27. e Ibid. Litt. § 371, 372. f Co. Litt. 35. 8 Previously, "was." *Cited, 2 Wash. (Va.) 80 (*63). t-t Quoted, 94 N. C. 497. "It is well settled that a deed running to a grantee not in existence is a nullity," citing above, 54 Mich. 546. Secondly; the deed must be founded upon good and sufficient consideration.* Not upon an usurious contract; nor upon fraud or collusion, either to deceive purchasors bona fide, or just and lawful creditors; i any of which bad considerations will vacate the deed, and subject such persons, as put the same in ure, to forfeitures, and often to imprisonment.8 †A deed also, or other grant, made without any consideration, is, as it were, of no effect; for it is construed to enure, or to be effectual, only to the use of the grantor himself.*† The [297] consideration may be either a good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty: a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant;12 and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasors. Thirdly; the deed must be written, or I presume printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed.m || Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any +-+ Quoted and discussed, 3 Johns. 486, 488; 3 Am. Dec. 518, 520; 4 Yeates, 96; 20 Mass. 524. + Cited, 19 Ark. 658. ?-? Quoted, 12 Johns. 552; 7 Am. Dec. 355. Ref. 32 N. Y. 642; whole sentence, 1 Dall. 138. Cited, 2 N. H. 140; 32 N. Y. 642; as to marriage, 58 Vt. 651. - Quoted and criticised, 84 Pa. St. 513. Cited, 14 Johns. 491. other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps, imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3. enacts, that no lease or estate in lands, tenements, or hereditaments (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two thirds of the real value) shall be looked upon as of greater force than a lease or estate at will; unless put in writing, and signed by the party granting, or his agent lawfully authorized in writing.* Fourthly; the matter written must be legally and orderly set forth: that is, there must be words sufficient to specify the agreement and bind the parties: which sufficiency [298] must be left to the courts of law to determine. For it is not absolutely necessary in law, to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart n Co. Litt. 225. 9 Ninth edition reads, "estate or interest." 9 Ninth edition inserts, "made by livery of seisin, or by parol only." 9 Ninth edition reads, "nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid; unless in both cases the same be." *Cited, 5 N. J. Eq. 340; 16 N. J. L. 331, 332; 95 Mass. 151. + Quoted, 52 Me. 49: last sentence, 1 Busb. 347; 349; 59 Am. Dec. 560, 562. Cited, 8 Blackf. 141; 9 Ga. 176; Phill. (N. C.) 228. |