Sivut kuvina

may purchase anything; but after purchase he can hold nothing, except a lease for years of a house for convenience of merchandize, in case he be an alien-friend; all other purchases (when found by an inquest of office) being immediately forfeited to the king."*

[ocr errors]

Papists, lastly, and persons professing the popish religion, are by statute 11 & 12 W. III. c. 4. disabled to purchase any lands, rents, or hereditaments and all estates made to their use, or in trust for them, are void. But this statute is construed to extend only to papists above the age of eighteen; such only being absolutely disabled to purchase: yet the next protest. ant heir of a papist under eighteen shall have the profits. during his life; unless he renounces his errors within the time limited by law.c9


II. We are next, but principally, to inquire, how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired; [294] which, we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose therefore, of continun Co. Litt. 2.

o 1 P. Wms. 354.

9 Ninth edition inserts, "and neglecting to take the oath prescribed by statute 18 Geo. III. c. 60. within the time limited for that purpose.

9 Ninth edition omits, except note o.

8 Previously spelt, "enquire."

* Cited, 37 Miss. 229; 21 Mich. 73; 19 How. 578; 3 Brev. 258.

ing the possession, the municipal law has established descents and alienations: the former to, continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons, to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his lifetime. A transaction, or transfer, of property being thus admitted by law, it becomes necessary that this transfer should be properly evidenced in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, 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.†

These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between 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 assurance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect, till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in it's


*Cited, 36 Cal. 332.

+-+ Quoted, 95 Mass. 151; 8 N. J. L. 335.


(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, § 1, pp. 321– 337; Deane on Conveyancing; Wharton on Conveyanc ing; 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.)



In treating of deeds I shall consider, first, their genéral 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 deliv-/ ered by the parties. 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, κar' eğoɣny, 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.
No estoppel in case of deed-poll,

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 pur, poses 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. o. 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 exist ence is a nullity," citing above, 54 Mich. 546.

« EdellinenJatka »