paper or parch stamped. Thirdly, the deed must be written, or I presume printed, 3. Writing on for it may be in any character or any language; but it must ment, duly 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 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 (4), enacts, that no lease, estate or in(m) Co. Litt. 229; F. N. B. 122. whether he was, or was not, then in insolvent circumstances. (Lush v. Wilkinson, 5 Ves. 387.)-ED.] Mr. Christian proceeds, "And if a person makes a voluntary grant, and afterwards becomes bankrupt, whether he was indebted or not at the time, it will be void by 1 Jac. I. c. 15; and the estate granted may be conveyed by the commissioners to the assignees for the benefit of the creditors. 1 Atk. 93." [See ante, p. 286, note. Although a voluntary settlement by a trader who becomes bankrupt, is void even against creditors who became such subsequently to the settlement; still, if any surplus of the bankrupt's estate remain after payment of all his creditors, that surplus will be bound by the trusts of the settlement. (Ex parte Bell, 1 Glyn & Jameson, 284; Assignees of Gardiner v. Shannon, 2 Sch. & Lef. 228; and see Rand v. Cartwright, 2 Freem. 183.)-ED.] (4) Courts of equity, though the practice has been lamented, have long been in the habit of deciding, upon equitable grounds, in contradiction to It is settled also, that trusts of lands terest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only, (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; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid; unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorised 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 must be left to the courts of law to determine (n). 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 from them without good reason or urgent necessity; and therefore I will here mention them in their usual (0) order. (n) Co. Litt. 225. (0) Ibid. 6. Willis v. Willis, 2 Atk. 71; Anonym. The statute of frauds enacts, that Lord Redesdale, indeed, has intimated a doubt, whether in any case (not turning upon the fact of part performance) an agreement ought to be enforced, which has not been signed by, or on behalf of, both parties; (Lawrenson v. Butler, 1 Sch. & Lef. 20; 1. The premises may be used to set forth the number and premises; names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted (p). tenendum; 2, 3. Next come the habendum and tenendum (q). The habendum and office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises, In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As, if a grant be "to A. and “the heirs of his body," in the premises, habendum “to "him and his heirs for ever," or vice versâ ; here A. has an estate-tail, and a fee-simple expectant thereon (r). But, had it been in the premises "to him and his heirs," habendum "to him for life," the habendum would be utterly void (s); for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. The tenendum," and to hold," is now of very little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure by which the [299] estate granted was to be holden; viz. “tenendum per servi"tium militare, in burgagio, in libero socagio, &c." But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I., it was also sometimes used to denote the lord of whom the land should be holden: but that statute directing all future purchasors to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi (t); but as this expressed nothing more than the statute had already provided for, it gradually grew out of use. (p) See Appendix, No. II. s. 2, pag. v. (q) Ibid. (r) Co. Litt. 21; 2 Roll. Rep. 19, VOL. II. 23; Cro. Jac. 476. (s) 2 Rep. 23; 8 Rep. 56. (t) Appendix, No. I. Madox. For. mul. passim. HH reddendum; condition; 66 4. Next follow the terms of stipulation, if any, upon which the grant is made: the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as rendering therefore yearly the sum of ten shillings, or a (6 pepper corn, or two days' ploughing, or the like (u).” Under the pure feodal system, this render, reditus, return, or rent, consisted in chivalry principally of military services; in villenage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit (w). To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed (x). But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee (y). 5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated (5); as "provided always, that if the mortgagor shall pay the mor[*300] "gagee *5001. upon such a day, the whole estate granted "shall determine;" and the like (2). warranty; 6. Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted (a). By the feodal constitution, if the vassal's title to enjoy the feud was disputed, he might vouch, or call the lord or donor, to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompence (b). And so, by our ancient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty (6) to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for (u) Appendix, No. II. s. 1, pag. iii. (x) Plowd. 13; 8 Rep. 71. (y) Appendix, No. I. pag. i. (5) See ante, chapter 10, pp. 152— 162, and the notes thereto. (z) Appendix, No. II. s. 2, pag. viii. (a) Ibid. No. I. pag. . i. (b) Feud. 1. 2, t. 8 & 25. (6) See ante, p. 53, note. the gift) were originally stipulated to be rendered (c). Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage, (which was called homage auncestrel,) this also bound the lord to warranty (d); the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition (7) or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty (e), because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title (ƒ). But, in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs (g); because it is a mere personal contract on the part of the feoffor, the tenure (and of course the ancient services) resulting back to the superior (c) Co. Litt. 384. (7) See ante, p. 185, note, and the corrigenda et addenda prefixed to this volume, as to the course of proceedings for effecting a partition. Every partition between coparceners has annexed to it a warranty in law; (1 Instit. 173 b;) though, in other deeds of partition, it seems there is no implied warranty, and therefore mutual covenants for title ought never to be omitted therein. But in every exchange, both a condition and a warranty are tacitly implied; a condition of re-entry, and a warranty of voucher and recompence. Such warranty, however, is special; and upon voucher by force of it, a man shall not recover other land in value, but that only which was given by him in exchange. And this warranty implied by law runs only in privity; for none shall vouch by force of it but the parties to the exchange or their heirs, and no assignee. (Bustard's case, 4 Rep. 121; Provost of Eton v. Bishop of Winches (f) Co. Litt. 384. ter, 3 Wils. 490, 496.) The transactions of partition, and of exchange approximate to each other, and have some things in common, but they have many points of difference: the rule as to warranty, we have seen, is not precisely the same in both cases: on a partition, each party has what was previously his own land, though he acquires a different interest in it; on an exchange, the land to which each party had previous title is parted with, and new lands acquired : a partition may be enforced, an exchange is always a voluntary act: a mere partition does not revoke a previous devise of the undivided interest, an exchange always operates a revocation; or rather a will made before the exchange cannot dispose of the land received in exchange. (Attorney General v. Hamilton, 1 Mad. 223; M'Queen v. Farquhar, 11 Ves. 476: Attorney General v. Vigor, 8 Ves. 281.) |