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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, 111. 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 () 4. 2. By breaking off, or defacing the seal(u). 3. By delivering it
(s) 2 Inst. 78. See pag. 378.
(t) 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. í 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 charta (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 incis 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. conveyances by the common law, some may be called by the common original, or primary conveyances; which are those by means law, are, original or primary, whereof the benefit or estate is created or first arises; others and derivative
are derivative, or secondary: whereby the benefit, or estate or secondary
originally created, is enlarged, restrained, transferred, or extinguished.
(w) Toth, numo. 24. 1 Vern. 348.
Original conveyances are the following: 1. Feoffment; Original con2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: veyances arederivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance.
1. A feoffment, feoffamentum, is a substantive derived 1. Feoffment. from the verb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi (x). It is the most antient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feoffor; and the person enfeoffed is denominated the feoffee.
This is plainly derived from, or is indeed itself the very The feoffor must mode of the antient feodal donation; for though it may be expressly de performed by the word, “ enfeoff” or “grant,” yet the tity of estate he aptest word of feoffment is, “ do or dedi" (y). And it is still directed and governed by the same feodal rules; insomuch that the principal rule relating to the extent and effect of the feodal grant, “ tenor est qui legem dat feudo," is in other words become the maxim of our law with relation to feoffments, “ modus legem dat donationi”(z). And therefore, as in pure feodal donations the lord, from whom the feud moved, must expressly limit and declare the continuance or quantity of estate which he meant to confer,“ ne “ quis plus donasse præsumatur, quam in donatione ex
presserit” (a); so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) hath barely an estate for life (6). For as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the teoffment, the feoffee's estate ought to be confined to his person, and subsist only for his life; unless the feoffor, by express provision in the creation
means to convey.
() Co. Litt. 9.
(a) Pag. 108, (and 56).
The feoffee must have livery of seisin.
and constitution of the estate, hath given it a longer conti
These express provisions are indeed generally made; for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple (c), by giving the land to the feoffee, to hold to him and his heirs for ever; though it serves equally well to convey any other estate of freehold (d).
But by the mere words of the deed the feoffment is by no means perfected, there remains a very material ceremony to be performed, called livery of seisin; without which the feoffee has but a mere estate at will (e). This livery of seisin is no other than the pure feodal investiture, or delivery of corporal possession of the land or tenement; which was held absolutely necessary to complete the donation. “ Nam feudum sine investitura nullo modo constitui po“ tuit” (f): and an estate was then only perfect, when, as the author of Fleta expresses it in our law, “fit juris et “ seisinæ conjunctio" (g) (13).
Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord; and that he did not grant a bare litigious
The origin of investiture.
(c) See Appendix, No. I.
(f) Wright, 37.
(13) Lord Mansfield (in Taylor v. be presumed, where the possession has Horde, 1 Burr. 107), said, in confor- gone according to the feoffment for a mity with the text above, “seisin is a great length of time. (Jackson v. Jacktechnical term, to denote the comple- son, Fitz-Gib. 147. Throckmorton v. tion of that investiture by which the Tracey, 1 Plowd. 149). And a court tenant was admitted into the tenure, of equity will even supply the adand without which no freehold could mitted defect of livery of seisin, where be constituted or pass. Disseisin, con- a feoffment appears to have been made sequently, means some way of turning for a good or a valuable consideration. the tenant out of his tenure, and usurp- (Thompson v. Attfield, as stated from ing his place and feudal relation.” It Reg. Lib. in Mr. Raithby's note to should be observed, however, that i Vern. 40. Burgh v. Francis, 1 Eq. livery of seisin, though the fact be not Ca. Ab. 320). indorsed on the deed of feoffment, will
right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or accurately retained in the memory of by-standers, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate; and that such, as claimed title by other means, might know against whom to bring their actions (14).
In all well-governed nations some notoriety of this kind Consequences of has been ever held requisite, in order to acquire and ascer
the want of cor
poral possestain *the property of lands. In the Roman law plenum do- sion. minium was not said to subsist, unless where a man had [ *312 ] both the right and the corporal possession; which possession could not be acquired without both an actual intention to possess, and an actual seisin, or entry into the premises, or part of them in the name of the whole (h). And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possession is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists (i), acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in dignities possession is given by instalment; in rectories and vicarages by induction, without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands by our law, which are cast on the heir by
(h) Nam apiscimur possessionem cor- sufficit quamlibet partem ejus fundi inpore et animo; neque per se corpore, troire. (Ff. 41. 2, 3). And again: traneque per se animo. Non autem ita ac- ditionibus dominia rerum, non nudis cipiendum est, ut qui fundum possidere pactis, transferuntur. (Cod. 2, 3, 20). velit, omnes glebas circumambulet; sed (i) Decretal, 1. 3, t. 4, c. 40.
(14) See ante, p. 54, note (17) to chapter 4.