Sivut kuvina

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 ascer

tained. Before the sta- This neglect of signing, and resting only upon the autute, sealing alone was suffi- thenticity 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) (10). 7. Delivery. A seventh requisite to a good deed is, that it be delivered,

by the party himself or his certain attorney, which, therefore, [ *307 ] is *also expressed in the attestation; “sealed and delivered.

A deed takes effect only from this tradition or delivery; for


solitam, in cæram impressam mutant,
"modumque scribendi Anglicum rejici-
unt." Ingulph.

(g) Stat. Exon. 14 Edw. I.
(h) 3 Lev. 1. Stra. 764.

(10) In Ellis v. Smith, (1 Ves. jun. that it is not signing, notwithstanding 13), Chief Justice Willes said, “I do the obiter dicta, which in many cases not think sealing is to be considered as were nunquam dicta, but barely the signing; and I declare so now, because, words of the reporters.” And see to if that question ever comes before me, the same effect, Smith v. Evans, ( 1 Wils. I shall not think myself precluded from 313). weighing it thoroughly, and decreeing

if the date be false or impossible, the delivery ascertains the time of it. And, if another person seals the deed, yet, if the party delivers it himself, he thereby adopts the sealing (i), and by a parity of reason the signing also, and makes them both his own t. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person (11), to hold till some conditions be performed on the part of the grantee: in which last case it is not delivered as a deed, but as an escrow; that is, as a scrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purposes (j).

The last requisite to the validity of a deed is the attesta- 8. Attestation. tion, or execution of it in the presence of witnesses: though this is necessary, rather for preserving the evidence, than for constituting the essence of the deed. Our modern deeds are, in reality, nothing more than an improvement or amplification of the brevia testata mentioned by the feodal writers (k); which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture,

(i) Perk. sec. 130.

(j) Co. Litt. 36.

(k) Feud. I. 1, t. 4.

(11) In the delivery of a deed as an very is absolute, and the deed will take escrow, proper words to express the in- effect immediately; nor will the party tent should be used; (Shep. Touch. to whom it is delivered be bound to 58); and the delivery must be to a perform the previous conditions. (Thostranger; for, if a person delivers a deed roughgood's case, 9 Rep. 137. Holford to the party himself to whom it is made, v. Parker, Hob. 246. Blunden v. Wood, though he professes to do so only as an Cro. Jac. 86). escrow, and upon conditions, the deli.

+ Mr. Christian observes that, “by ments specified in the first section, the 29 Car. 2, c. 3, referred to above in the agent must be authorized by writing, text, all leases and agreements, which but in the fourth and seventeenth secare required to be in writing, must be tions, the words, by writing, are omitsigned by the party, or an agent law- ted, and a parol authority to the agent fully authorized.

will be sufficient with respect to the “ With respect to leases and agree- contracts therein enumerated."

[ * 308 ]

when grants by parol only became the foundation of frequent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names, (that not being always in their power), but they only heard the deed read; and then the clerk or scribe added their names, in a sort of memorandum; thus: hijs testibus, Johanne Moore, Jacobo Smith, et aliis ad hanc rem convocatis (1).This, like all other solemn transactions, was originally done only coram paribus (m) (12), and frequently when assembled in the court-baron, hundred, or county-court; which was then expressed in the attestation, teste comitatu, hundredo, &c. (n). Afterwards the attestation of other witnesses was allowed, the trial, in *case of a dispute being still reserved to the pares; with whom the witnesses (if more than one) were associated and joined in the verdict(0); till that also was abrogated by the statute of York, 12 Edw. II. st. 1, c. 2. And in this manner, with some such clause of hijs testibus, are all old deeds and charters, particularly magna carta, witnessed. And in the time of Sir Edward Coke, creations of nobility were still witnessed in the same manner (p). But in the king's common charters, writs, or letters patent, the stile is now altered: for at present the king is his own witness, and attests his letters-patent thus: Teste meipso, witness ourself at Westminster, &c.” a form which was introduced by Richard the first (9), but not commonly used till about the beginning of the fifteenth century; nor the clause of hijs testibus entirely discontinued till the reign of Henry the eighth (r): which was also the æra of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general;

(1) Co. Litt. 7.
(m) Feud. l. 2, t. 32.

(n) Spelm. Gloss. 228. Madox. For-
mul. No. 221, 322, 660.

(o) Co. Litt. 6.
(p) 2 Inst. 77.
(9) Madox. Formul. No. 515.
(r) Ibid. Dissert. fol. 32.

(12) See ante, p. 54, note (17) to chapter 4.

and therefore, ever since that time the witnesses have usual. ly subscribed their attestation, either at the bottom, or on the back of the deed (s) +.

III. We are next to consider, how a deed may be avoided, III. How a deed or rendered of no effect. And from what has been before may be avoided. laid down it will follow, that if a deed wants any of the essential requisites before-mentioned; either, 1. Proper parties and a proper subject matter: 2. A good and sufficient consideration: 3. Writing on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing; and, by the statute, in most cases signing also: or, 7. Delivery; it is à void deed ab initio. It may also be avoided by matter ex post facto: as, 1. By rasure, interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execution and attestation (t) I. 2. By breaking off, or defacing the seal(u). 3. By delivering it

(s) 2 Inst. 78. See pag. 378.

(1) 11 Rep. 27.

(u) 5 Rep. 23.

+ Mr. Christian remarks," from the Mr. Christian observes, that “such few laconic deeds of antiquity, being an alteration will also render void a mostly feoffments, which I have had bill of exchange or promissory note. an opportunity of seeing, I have ob- 4 T. R. 320. 1 Anst. 225.-[But the served that in the reign of Edw. IV. doctrine is not confined to negotiable and before that time, they were neither instruments. (Powell v. Divett, 15 East, subscribed by the parties nor witnesses. 32).-Ed.] But they conclude, in cujus rei testi- “A bill may be altered in the terms monium huic chartæ (vel scripto) nos- of it at the time of making, or so tra sigilla apposuimus. Hiis testibus, soon afterwards that the alteration and &c. But after that time the parties the making may be construed as one began to write their names over or near But after it has been some time the seal. "And in the reign of Hen. in the hands of the payee, it is void, VIII., in general they are signed by though altered by the consent of all the parties, but not by the witnesses; parties; a fresh stamp becomes necesbut in the next reign the practice com- sary. But words written on a bill, menced, that the witnesses, who the which do not affect the responsibility of parties intended should afterwards the acceptor or party against whom the prove the execution of the instrument, action is brought, do not vitiate a bill should also subscribe their names." or note. Camp. p. 79.” VOL. II.



up to be cancelled; that is, to have lines drawn over it in the form of lattice-work or cancelli; though the phrase is now used figuratively for any manner of obliteration or defacing it. 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as the husband, where a feme-covert is concerned; an infant, or person under duress, when those disabilities are removed; and the like. 5. By the judgment or decree of a court of judicature. This was antiently the province of the court of star-chamber, and now of the chancery: when it appears that the deed was obtained by fraud, force, or other foul practice: or is proved to be an absolute forgery (w). In any of these cases the deed may be voided, either in part or totally, according as the cause of avoidance is more or less

extensive. of the several

And, having thus explained the general nature of deeds, species of deeds, we are next to consider their several species, together with and their respective inci their respective incidents. And herein I shall only examine dents.

the particulars of those, which, from long practice and experience of their efficacy, are generally used in the alienation of real estates: for it would be tedious, nay infinite, to descant upon all the several instruments made use of in personal concerns, but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, are commonly denominated conveyances; which are either conveyances at common law, or such as receive their force and efficacy by

virtue of the statute of uses. I. Conveyances,

I. Of conveyances by the common law, some may be called by the common original, or primary conveyances; which are those by means al or primary,

whereof the benefit or estate is created or first arises; others

are derivative, or secondary: whereby the benefit, or estate or secondary.

originally created, is enlarged, restrained, transferred, or extinguished.

and derivative

(W) Toth.

umo. 24. 1 Vern. 348.

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