Sivut kuvina

Before the sta

tute, sealing


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 aualone 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

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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 scrow 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. 1. 1, t. 4.

(11) In the delivery of a deed as an escrow, proper words to express the intent should be used; (Shep. Touch. 58); and the delivery must be to a stranger; for, if a person delivers a deed to the party himself to whom it is made, though he professes to do so only as an escrow, and upon conditions, the deli

very is absolute, and the deed will take
effect immediately; nor will the party
to whom it is delivered be bound to
perform the previous conditions. (Tho-
roughgood's case, 9 Rep. 137. Holford
v. Parker, Hob. 246. Blunden v. Wood,
Cro. Jac. 86).

+ Mr. Christian observes that, "by 29 Car. 2, c. 3, referred to above in the text, all leases and agreements, which are required to be in writing, must be signed by the party, or an agent lawfully authorized.

"With respect to leases and agree.

ments specified in the first section, the
agent must be authorized by writing,
but in the fourth and seventeenth sec-
tions, the words, by writing, are omit-
ted, and a parol authority to the agent
will be sufficient with respect to the
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 (q), 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. 1. 2, t. 32.

(n) Spelm. Gloss. 228. Madox. For

mul. No. 221, 322, 660.

(0) 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 a 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) ‡. 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 few laconic deeds of antiquity, being mostly feoffments, which I have had an opportunity of seeing, I have observed that in the reign of Edw. IV. and before that time, they were neither subscribed by the parties nor witnesses. But they conclude, in cujus rei testimonium huic charta (vel scripto) nostra sigilla apposuimus. Hiis testibus, &c. But after that time the parties began to write their names over or near the seal. And in the reign of Hen. VIII., in general they are signed by the parties, but not by the witnesses; but in the next reign the practice commenced, that the witnesses, who the parties intended should afterwards prove the execution of the instrument, should also subscribe their names."


Mr. Christian observes, that "such an alteration will also render void a bill of exchange or promissory note. 4 T. R. 320. 1 Anst. 225.—[But the doctrine is not confined to negotiable instruments. (Powell v. Divett, 15 East, 32),-ED.]

"A bill may be altered in the terms of it at the time of making, or so soon afterwards that the alteration and the making may be construed as one act. But after it has been some time in the hands of the payee, it is void, though altered by the consent of all parties; a fresh stamp becomes neces➡ But words written on a bill, which do not affect the responsibility of the acceptor or party against whom the action is brought, do not vitiate a bill or note. Camp. p. 79."



Of the several

species of deeds,

and their respective incidents.

I. Conveyances,

law, are, original or primary, and derivative or secondary.

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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.

And, having thus explained the general nature of deeds, we are next to consider their several species, together with their respective incidents. And herein I shall only examine 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. Of conveyances by the common law, some may be called by the common original, or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative, or secondary: whereby the benefit, or estate originally created, is enlarged, restrained, transferred, or extinguished.

(w) Toth. numo. 24. 1 Vern. 348.

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