by whom and to whom it was transferred; or, with regard to the subject matter, as, what the thing transferred consisted of; or lastly, with relation to the mode and quality of the transfer, as, for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed. assurances are 1. By deed; These common assurances are of four kinds:-1. By mat- The common ter in pais, or deed; which is an assurance transacted be- of four kinds :— tween two or more private persons in pais, in the country; that is, (according to the old common law) upon the very spot to be transferred. 2. By matter of record, or an as- 2. By matter of surance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular 3. By special places, and relating only to some particular species of property. Which three are such as take effect during the life record; custom; of the party conveying or assuring. 4. The fourth takes no 4. By devise. effect till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in its order. 295 CHAPTER XX. OF ALIENATION BY DEED. Of deeds. I. A deed is a writing sealed and delivered 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, its 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, by the parties, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, Kar' εoxnv, 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 any thing in contradiction to what he has once so solemnly and deliberately avowed (b). 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, like the teeth of a saw, 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 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 de Indentures. (a) Co. Litt. 171. (b) Plowd. 434. nominated syngrapha by the canonists (c); and with us chirographa, or hand-writings (d); 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 Deeds-poll. is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed (e). quisites of a 1. Proper par II. We are in the next place to consider the requisites of II. Of the rea deed. The first of which is, that there be persons able deedto contract and be contracted with for the purposes intend- ties, and a proper subjected by the deed and also a thing, or subject-matter to be matter. contracted for; all which must be expressed by sufficient names (ƒ). 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. Secondly, the deed must be founded upon good and 2. A good and sufficient consideration (1). Not upon an usurious con- sideration. (c) Lyndew. 1. 1, t. 10, c. 1. (d) Mirror, c. 2, s. 27. (1) A consideration, (in the legal sense of that word,) it has sometimes been said, is not, for all purposes, essentially necessary to the validity of a deed. In Sharington v. Strotton, (1 Plowd. 308 b,) it was observed, arguendo, and not denied, that "because words are oftentimes spoken unadvisedly, the law has provided that a contract by words shall not bind, without a consideration. But deliberation necessarily accompanies the making and completion of deeds, for which reason they are received as a lien final to the party, and are ad (e) Ibid.; Litt. s. 371, 372. judged to bind the party, without sufficient con tract (g) (2); nor upon fraud or collusion, either to deceive purchasors bonâ fide (h), or just and lawful creditors (¿); any (h) Stat. 27 Eliz. c. 4. (g) Stat. 13 Eliz. c. 8. (i) Stat. 13 Eliz. c. 5. that a consideration is absolutely necessary to the forming of a contract, and that a nudum pactum is totally void in law, and a man cannot be compelled to perform it; yet, if he has entered into a voluntary bond, or given a promissory note, he shall not be allowed to aver the want of consideration in order to evade the payment; for, every bond, from the solemnity of the instrument, and every note, from the subscription of the drawer, carries with it an internal evidence of a good consideration. Courts of justice will, therefore, support them both, as against the contractor himself; but not to the prejudice of creditors. That guaranties must not only be made on good consideration in order to be binding, but that such consideration must appear on the face of the instrument, see post, the note to Vol. III. p. 157. (2) Whenever a fair inference arises, either of ignorance on the one side as to the extravagant nature of the transactions, or of undue influence on the other part, no conveyances obtained from a distressed party, (whose urgent necessities render him hardly a free agent,) can be supported as more, at the utmost, than securities for any balance which may be truly due on the account between the parties. (Wharton v. May, 5 Ves. 70.) And though in the case just cited it was held, that post obit bonds were not liable to impeachment, on the ground of usury; and it is not of necessity that post obit bonds must be affected, merely by showing that the money might have been procured on more reasonable terms; (Curling v. Marquis Townsend, 19 Ves. 634;) still, such dealings are discounte nanced in equity, (Earl of Chesterfield v. Jansen, 1 Atk. 347, 353,) and, on grounds of public policy, will be very strictly examined; great inadequacy of consideration may, of itself, in such cases be sufficient to induce a court to presume oppression. (Darley v. Singleton, Wightwick, 29; Crowe v. Ballard, 1 Ves. jun. 220.) To expectant heirs, the Court of Chancery seems to have extended a degree of protection, almost approaching to a declaration of their incapacity to bind themselves by any contract as to their expectancies. (Peacock v. Evans, 16 Ves. 514; Marsack v. Reeves, 6 Mad. 109; Gwynne v. Heaton, 1 Browne, 9.) And although a sale by an expectant heir of a reversion (which is as much property as an estate in possession) may be supported if the transaction was a fair one: (Shelley v. Nash, 3 Mad. 236; Headen v. Rosher, M'Clel. & Younge, 91) yet, if the particulars of a sale by auction disclose that the vendor is a young man about to raise money on post obit bonds, and that the sale is to take place without a reserve of any bidding on the part of the vendor, the purchaser will have great difficulty, at all events, in supporting the transaction. (Fox v. Wright, 6 Mad. 112.) It has been doubted, (in Wood v. Abrey, 3 Mad. 422,) whether the principle was sound, according to which the purchasers of vested reversions have been compelled to prove the fairness of the price they paid, or to reconvey the property purchased : this rule, however, seems to be established by a series of decisions. (Gowland v. De Faria, 17 Ves. 24.) A fortiori, where a person has dealt with an heir apparent for interests not of which bad considerations will vacate the deed, and subject such persons, as put the same in ure, to forfeitures, and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect; for it is construed to inure, or to be effectual, only to the use of the grantor himself (k) (3). The consideration may be either (k) Perk. s. 533. vested, but constituting a bare expectancy, it does not rest with the heir to show that the bargain was unreasonable ; but the onus lies on the other party to show that it was reasonable. (Davis v. The Duke of Marlborough, 2 Swanst. 139; and see 1 Hovenden on Frauds, chap. 14.) When an annuity is set aside upon equitable grounds, it is obviously just that the applicant should return the consideration he actually received for the grant. (Aguilar v. Aguilar, 5 Mad. 416; Low v. Barchard, 8 Ves. 136; Shove v. Webb, 1 T. R. 735; Scarfield v. Gowland, 6 East, 241; and see the additions to Mr. Christian's next note.) But, in the case of Roberts v. Goff, (4 Barn. & Ald. 92,) a rule was granted, calling upon the plaintiff to show cause why the judgment entered upon a warrant of attorney, and the execution thereof, should not be set aside, and the warrant of attorney be delivered up to be cancelled, on the ground of usury. The plaintiff showed for cause, that, even if the court were satisfied of the usury, they could not set aside the judgment and direct the security to be cancelled, except upon the terms that the party should repay the money actually advanced with legal interest. But the Judges, Bailey, Holroyd, and Best, said, we cannot impose such terms; the instrument is void: it is not good at law: the construction and practice of this court have been different from that suggested." 66 And to the generality of the dictum in the Duke of Bolton v. Williams, (2 Ves. jun. 144,) that courts of equity consider the holder of an usurious instrument as a creditor for the sum actually advanced by, and fairly due to him, an exception must be made in cases where the creditor becomes bankrupt; there, the security (if not a negotiable one, and actually in the hands of an indorsee for valuable consideration without notice,) is cut down altogether. (Ex parte Skip, 2 Ves. sen. 489; Benfield v. Solomons, 9 Ves. 84; Ex parte Scrivener, 3 Ves. & Bea. 14.) But the statute of 58 Geo. III. c. 93, in order to afford relief to boná fide holders of negotiable securities, who took them without notice that they were tainted with usury, enacts, that, in such hands, the securities shall not be void. (3) Mr. Christian, in his note upon the text, says, "this I conceive is only true of a bargain and sale; for 'herein it is said to differ from a gift, that this may be without any consideration or cause at all; and that hath always some meritorious cause moving it, and cannot be without it.' Shep. Touch. 221. But otherwise a voluntary conveyance is good both in law and equity. Tr. of Eq. b. 1, c. 5, s. 2." [A court of equity will not annul donations-and the principle applies a fortiori to bargains-merely because they are improvident, and such as a wise man would not have made, or a man of nice honour would not have accepted; (Huguenin v. Baseley, 14 Ves. 290; Fox v. Mackreth, 2 Br. 420;) but, whilst disclaiming such a |