The case of an alien born is also peculiar. For he may Aliens. purchase any thing; 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 pur

† Mr. Christian says, "it seems that he has not even this exception in his favour. Harg. Co. Litt. 2."

Papists.

II. As to how a man may aliene or convey.

Origin and use

chases (when found by an inquest of office) being immediately forfeited to the king (n).

Papists, lastly, and persons professing the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III. c. 60, within the time limited for that purpose, 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 (o) (9).

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 givof conveyances. ing 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 (10). But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seized, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose, therefore, of continuing 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, should chuse to relinquish it in his life-time. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as, whe

(n) Co. Litt. 2.

(9) The act cited was rather an enabling than a disabling statute; it repealed so much of the act of Will. III. as declared papists incapable of pur

(0) 1 P. Wms. 354.

chasing lands, and merely imposed an oath of allegiance.

(10) See ante, chapter 1, and the notes thereto.

ther there was any tranfer 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.

assurances are

of four kinds:

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 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 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 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

by the parties.

Indentures.

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, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, κατ' εξοχην, 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 (6). 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

(a) Co. Litt. 171.

(b) Plowd. 434.

word or letters of the alphabet written between them; through which the parchment was cut, either in a strait or indented line, in such a manner as to leave half the word on *one part and half on the other. Deeds thus made were de- [ *296] 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).

L

quisites of a

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- 1. Proper parties, and a proed by the deed: and also a thing, or subject-matter to be per subjectcontracted for; all which must be expressed by sufficient matter. names (f). 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.