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 (f). 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 lord of the fee. And in other forms of alienation, gradually introduced since that statute *no warranty whatsoever is im- [*301] plied (h); they bearing no sort of analogy to the original feodal donation. And therefore in such cases it became necessary to add an express clause of warranty to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant (i). These express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feodal doctrine of nonalienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet if a clause of warranty was added to the ancestor's grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him a recompense in lands of equal value: the law, in favour of alienations, supposing that no ancestor would wantonly disinherit his next of blood (k); and therefore presuming that he had received a valuable consideration, either in land or in money, which had purchased land, and that this equivalent descended to the heir together with the ancestor's warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in feesimple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir and this, whether that warranty was lineal or collateral to the title of the land. Lineal warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty: as where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with warranty, this was lineal to the younger son (1). Collateral warranty was where the heir's title to the land neither was, nor could have been derived from the warranting [*302] ancestor;38 as where a younger brother released to his father's disseisor, with warranty, this was collateral to the elder brother (m). where the very conveyance to which the warranty was annexed immediately followed a disseisin, or operated itself as such, (as, where a father tenant for years, with remainder to his son in fee, aliened in fee-simple with warranty), this, being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseisin; and, being too palpably injurious to be supported, was not binding upon any heir for such tortious warrantor (n). (e) Co. Litt. 174. (f) Ibid. 384. (g) Ibid. (h) Ibid. 102. (i) Litt. 733. (k) Co. Litt. 373. But (38) See Hov. n. (38) at the end of the Vol. B. II. In both lineal and collateral warranty, the obligation of the heir (in case the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor (o). But though without assets, he was not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for if he could succeed in such claim, he would then gain assets by descent (if he had them not before), and must fulfil the warranty of his ancestor and the same rule (p) was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon the son (who was the heir of both his parents) barred him from claiming his maternal inheritance; to remedy which the statute of Gloucester, 6 Edw. I. c. 3. declared, that such warranty should be no bar to the son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III. [303] to make the same provision universal, by enacting, that no col lateral warranty should be a bar, unless where assets descended from the same ancestor (9); but it then proceeded not to effect (9). However, by the statute 11 Hen. VII. c. 20. notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he be also heir to the wife. And by statute 4 & 5 Ann. c. 16. all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession, shall be void against his heir. By the wording of which last statute it should seem that the legislature meant to allow, that the collateral warranty of tenant in tail in possession, descending (though without assets) upon a remainder-man or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets should not bar the issue in tail, yet they held such warranty with assets to be a sufficient bar (r): which was therefore formerly mentioned (s) as one of the ways whereby an estate-tail might be destroyed; it being indeed nothing more in effect than exchanging the lands entailed for others of equal value. They also held, that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue; and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate-tail and all remainders and reversions expectant thereon (t). And so it still continues to be, notwithstanding the sta tute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases (0) Co. Litt. 102. (p) Litt. 711, 712. (g) Co. Litt. 373. (9) In New-York lineal and collateral warranties are abolished, but heirs and devisees continue liable to the covenants and agree (r) Litt. 712. 2 Inst. 293. (1) Co. Litt. 374. 2 Inst. 335. ments of their ancestor or testator to the extent of the lands received by them. (1 R. S. 739, § 141.) make a good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion. *7. After warranty usually follow covenants (10), or conven- [*304] tions, which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus the grantor may covenant that he hath a right to convey; or for the grantee's quiet enjoyment; or the like; the grantee may covenant to pay his rent, or keep the premises in repair, &c. (u). If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise; if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty (11). It is also in some respects a less security, and therefore more beneficial to the grantor; who usually covenants only for the acts of himself and his ancestors, whereas a general warranty extends to all mankind. For which reasons the covenant has in modern practice totally superseded the other. 8. Lastly, comes the conclusion, which mentions the execution and date of deed, or the time of its being given or executed, either expressly, or by reference to some day and year before mentioned (w). Not but a deed is good, although it mention no date or hath a false date; or even if it hath an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is delivered, can be proved (r) (12). « (u) Appendix, N° II. ◊ 2, pag. viii. (w) 1bid. pag. xii. (10) As to covenants in general, see Com. Dig. Covenant. The word "covenant" is not essentially necessary to the validity of a covenant, for a proviso to pay is a covenant, and may be so declared upon. Clapham v. Moyle, Lev. 155. And it may be inferred from the exception in another covenant. 16 East, 352. A vendor's covenant that he hath right to convey is usually only against his own acts, and not absolutely that he has a good title. Sometimes when he takes by descent, he covenants against his own acts and those of his ancestor; and if by devise, it is not unusual for him to covenant against the acts of the devisor as well as his own. But the usual words "notwithstanding any act by him done," &c. are generally to be taken as confining the covenant to acts of his own. 2 Bos. & P. 22. 26. Hob. 12. See the constructions on covenants for good title. 2 Saund 178. a. b. 181. Covenants which affect, or are intimately attached to the thing granted, as to repair, pay rent, &c. are said to run with the land, and bind not only the lessee, but his assignee also, 5 Co. 16. b. and enure to the heir and assignee of the lessor, even although not named in the covenant. See 2 Lev. 92. As are also those which the grantor makes that he is seised in fee, has a right to convey, for quiet enjoyment, for further assurance, and the like, which enure not only to the grantee, but (2) Co. Litt. 46. Dyer, 28. also to his assignee. 1 Marsh. 107. S. C. 5 Taunt. 418. 4 M. & S. 188. id. 53. and to executors, &c. according to the nature of the estate. 2 Lev. 26. Spencer's case, 5 Co. 17. b. 3 T.R. 13. And these are covenants real, as they either pass a realty, or confirm an obligation, so connected with realty, that he who has the realty is either entitled to the benefit of, or is liable to perform, the obligation. Fitz. N. B. 145. Shep. Touch. c. 7. 161. See, as to right and liability of suing and being sued on these covenants, in case of heirs, assignees, &c. 1 Chitty on Pl. 10, 11. 13. 38, 39, 42. (11) The executors and administrators are bound by every covenant without being named, unless it is such a covenant as is to be performed personally by the covenantor, and there has been no breach before his death. Cro. Eliz. 553. (12) The date of a deed is not essential. Com. Dig. Fait, B. 3. In ancient times the date of the deed was generally omitted, and the reason was this, viz. that the time of prescription frequently changed, and a deed died before the time of prescription was not pleadable, but a deed without date might be alleged to be made within the time of prescription. Dates began to be added in the reigns of Ed. II. and Ed. III. Where a deed purported to bear date on the I proceed now to the fifth requisite for making a good deed; the reading (13) of it. This is necessary, wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party (y). [*305] *Sixthly, it is requisite that the party, whose deed it is, should seal (14), and now in most cases I apprehend should sign it al80 (15). The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely ancient. We read of it among the Jews and Persians in the earliest and most sacred records of history (z). And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase (a). In the civil law also (b), seals were the evidence of truth; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use in England. For though sir Edward Coke (c) relies on an instance of king Edwin's making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation: and perhaps the charter he mentions may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and whether they could write or not, to affix the sign of the cross; which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters (d). In like manner, and for (y) 2 Rep. 3. 9. 11 Rep. 27. (z) 1 Kings, c. 21. Daniel, c. 6. Esther, c. 8. (a)" And I bought the field of Hanancel, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took witnesses, and weighed him the money in the balances. And I took the evidence of the purchase, both that which was sealed according to the law and custom, and also that which was open." c. 32. 20th of November, and was executed by one of two defendants on the 16th of that month, and by the other on a previous day, it was held to be immaterial, it not appearing that a blank was left for the date at the time of the execution. 6 Moore, 483. A person may declare in covenant that the deed was indented, made, and concluded, on a day subsequent to the day on which the deed itself is stated on the face of it to have been indented, made, and concluded. 4 East, 477. And where there is no date to a deed, and it directs something to be done with in a certain time after its supposed date, the time will be calculated from the delivery. 2 Ld. Raym. 1076. And see Bac. Ab. Leases, I. 1. Com. Dig. Fait, B. 3. (13) 2 Co. 3. 9. 12 Co. 90. Skin. 158. 2 Atk. 327. 8 T. R. 147. Com. Dig. Fait, B. 2. - (14) See in general, Com. Dig. Fait, A. 2. Sealing must be averred in pleading. 1 Saund. 290. n. 1. If A. execute a deed for himself and his partner by the authority of his partner, and in his presence, it has been held a good execution, though only sealed once, 4 T. R. 313. 3 Ves. 578. though it is an established rule, that one partner cannot bind the other partners by deed. 7 T. R. 207. A person executing a deed for his principal, should sign in the name of the principal, 6 T. R. 176. or thus, "for A. B. (the principal), E. F. his attorney." 2 East, 142. (15) Signing seems unnecessary, unless in cases under the statute of frauds and deeds executed under powers. Com. Dig. Fait B. 1. 17 Ves. J. 459. the same unsurmountable reason, the Normans, a brave_but *il- [*306] literate nation, at their first settlement in France, used the practice of sealing only, without writing their names: which custom continued, when learning made its way among them, though the reason for doing it had ceased; and hence the charter of Edward the Confessor to Westminster-abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England (e). At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross (ƒ). And in the reign of Edward I. every freeman, and even such of the more substantial villeins as were fit to be put upon juries, had their distinct particular seals (g). The impressions of these seals were sometimes a knight on horseback, sometimes other devices: but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the First, who brought them from the croisade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every Christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained. This neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed: and so the common form of attesting deeds,-" sealed and delivered," continues to this day; notwithstanding the statute 29 Car. II. c. 3. before mentioned revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds: in which therefore signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other (h) (16). A seventh requisite to a good deed is, that it be delivered (17) by the party himself or his certain attorney, which therefore is also ex- [*307] pressed in the attestation; "sealed and delivered." A deed takes ef (e) Lamb. Archeion. 51. (f) "Normanni chirographorum confectionem, cum crucibus aureis, aliisque signaculis sacris, in Anglia firmari solitam, in caeram impressam mu (16) In Ellis v. Smith (1 Ves. jun. 13.), Chief Justice Willes said, "I do not think sealing is to be considered as signing; and I declare so now, because, if that question ever comes before me, I shall not think myself precluded from weighing it thoroughly, and des creeing that it is not signing, notwithstanding the obiter dicta, which in many cases were nunquam dicta, but barely the words of the reporters." And see to the same effect, Smith v. Evans, (1 Wils. 313). See also note 5 ante. (17) With regard to the delivery of a deed, no particular form or ceremony is necessary; it will be sufficient if a party testifies his intention in any manner, whether by action or word, to deliver or put it into the possession of the other party, as by throwing it down upon the table, with the intent that it may be taken up by the other party; or if a stranger deliver it with the assent of the party to the deed. Phil. Er. 449. 9 Rep. 137. a. Com. Dig. tit Evidence. (A. 3.) Proof that a party signed a deed which bears on the face of it a declaration that the deed was sealed by the party, is when the testimony of a subscribing witness cannot be obtained, or when he has no recollection on the subject, evidence to be left to a jury that the party sealed and delivered the deed. 7 Tanut. 251. 2 Marsh. 527. and see 17 Ves. J. 439. Peake R. 146. It is a question of fact for the jury upon the whole evidence, whether a bond was delivered as a deed to take effect from the moment of delivery, or at some future time. In Murray v. Earl Stair, Abbott, C. J. told the jury, that "to make the delivery conditional, it was not necessary that any express words should be used at the time, the conclusion was to be drawn from all the circumstances. It obviated all question as to the intention of the party, if at the time of delivery he expressly declared, that he delivered it as an escrow, but that was not essential to make it an escrow.' " 2 B. & C. 88. See also 4 B. & A. 440. |