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deed, and subject such persons, as put the same in ure, to forfeitures, and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect: for it is construed to enure, or to be effectual, only to the use of the grantor himself. (7) The consideration may be either a good or a valuable [297] one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty; a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant:' and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasers. (7)

Written or

Thirdly; the deed must be written, or I presume printed, (8) for it Thirdly; may be in any character or any language; but it must be upon paper printed on or parchment. For if it be written on stone, board, linen, leather, paper or or the like, it is no deed. Wood or stone may be more durable, inent. (8)

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(7) This it has been said applies only to the case of a bargain and sale; for "herein it is said to differ from a gift which may be without any consideration or cause at all; and that (a bargain and sale) hath always some meritorious cause moving it, and cannot be without it." Shep. Touch. 221. A voluntary conveyance is good both in law and equity against the party himself. Tr. of Eq. b. 1. c. 5. s. 2. It was originally considered that if a person made a voluntary grant of lands, although he could not resume them himself, yet if he afterwards made another conveyance of them for a valuable consideration, the first grant would be void with regard to this purchaser under the 27 Eliz. c. 4. And though decided by lord Mansfield and the court that there must be some circumstance of fraud to vacate the first conveyance, and that the want of consideration alone was not sufficient. See Cowp.705. Yet it was more recently determined in the case of Doe d. Otley v. Manning, 9 East. 59. that a voluntary settlement of lands made even in consideration of natural love and affection, and in favour of the nearest relation, as parents or children, is void, as against a subsequent purchaser for a valuable consideration, though with notice of a prior

m Co. Litt. 229. F. N. B. 122.

And it

settlement before all the purchase money
was paid or the deeds executed, and there
was no fraud in fact in the transaction;
for the law which is in all cases the judge
of fraud and covin arising out of facts and
intents, infers fraud in this case upon the
construction of the 27 Eliz. c. 4.
was remarked by lord Ellenborough in
delivering the judgment of the court, that
in the case of Doe v. Routledge, above
referred to (and in which it was consi-
dered that lord Mansfield had established
as a point of law, that the settlement must
be fraudulent, as well as voluntary, to
renderit void), there was no bondá fide pur-
chaser, and that "a marriage was had upon
the strength of that settlement," which is
a good consideration. If a person is in-
debted at the time of making a voluntary
grant, or becomes so soon afterwards, it
will be held fraudulent and void with re-
spect to creditors under the 13 Eliz. c. 5.
and 6 Geo. IV. c. 16. Though a considera-
tion is not in general essential to a deed.
7 T. R. 475.

(8) Com. Dig. Fait, A. 3 Chitty's
Com. L. 6. There seems no doubt that
it may be printed, and that if signatures
be requisite the name of a party in print
at the foot of the instrument would suf-
fice. 2 M. & S. 288.


and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular Stamps. (9) stamps imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3. enacts, that no lease-estate or interest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value), shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid: unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized in writing.

Matter must

be legally

Fourthly; the matter written must be legally and orderly set forth that is, there must be words sufficient to specify the agreeand orderly ment and bind the parties; which sufficiency must be left to the set forth. (10) courts of law to determine." (10) For it is not absolutely necessary [298] in law to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; (11) and therefore I will here mention them in their usual order.

n Co. Litt. 225.

(9) See statute 55 Geo. III. c. 184. 3 Geo. IV. c. 117. 2 Chitty's Com. L. 163 to 192.

(10) As to the construction of contracts in general at law and in equity, see Comyn on contracts, 2 edit. 23 to 28. 3 Chitty's Com. L. 106 to 118. No precise technical words are required in a deed to make a stipulation a condition precedent or subsequent; neither does it depend upon its being prior or posterior in the deed. But it must depend on the nature of the contract, and the acts to be performed by the contracting parties. 1

• Ibid. 6.

T. R. 638. And if a deed correctly describe land by its quantities and occupiers, though it describe it as being in a parish in which it is not, the land shall pass by the deed. 5 Taunt. 207. A deed made with blanks and afterwards filled up and delivered by the agent of the party, is good. 1 Anst. 229. 4 B. & A. 672. And the palpable mistake of a word will not defeat the manifest intent of the parties. Dougl. 384.

(11) The maxim in pleading in favour of following approved precedents "num nihil simul inventum est et perfectum,"


1. The premises may be used to set forth the number and names 1. The of the parties, with their additions or titles. They also contain the mises. (12) recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted.

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2, 3. Next come the habendum and tenendum. The office of 2.flabendum. the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As if a grant be "to A and the heirs of his body," in the premises; habendum "to him and his heirs for ever," or vice versa; here A has an estate-tail, and a fee-simple expectant thereon. But, had it been in the premises to him and his heirs;" habendum "to him for life," the habendum would be utterly void; for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. (12) The tenendum, and to hold," 3. Tenenis now of very little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure by which the estate [291] granted was to be holden; viz. " tenendum per servitium militare, in burgagio, in libero socagio, &c." But, all these being now reduced to free and common socage, the tenure is never specified. (13) Before the statute of quia emptores, 18 Ed. I., it was also sometimes used to denote the lord of whom the land should be holden: but that statute directing all future purchasors to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi; but as this expressed nothing

a Ibid.

P See Appendix, No II. § 1. pag. v.
Co. Litt. 21. 2 Roll. Rep. 19. 23. Cro. Jac. 476.
Appendix, No 1. Madox. Formul. passim.

2 Rep. 23. 8 Rep. 56.

may well be applied to conveyancing. Co. Litt. 230. a. Frequently the reason for using particular expressions will appear after many years study, when before upon a cursory consideration, the words seemed unnecessary, if not improper.

(12) See in general, Com. Dig. Fait, E. 3. See the different powers of the premises and habendum, and how they may control each other, explained in a learned VOL. II.


note in 2 Saunders on Uses & T. 3 ed.
255 to 262. Com. Dig. Fait, E. 9.

(13) The third part of a deed is called
the tenendum, which was formerly used to
express the tenure by which the estate
granted was to be held. But since all
freehold tenures have been changed into
free and common socage, the tenendum is
of no farther use, and is therefore joined
to the habendum. Cru. Dig. title, 32. s. 52.

dum. (13)

4. The red

dendum. (14)

5. Condi. tions.

more than the statute had already provided for, it gradually grew out of use.

4. Next follow the terms of stipulation, if any, upon which the grant is made the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as "rendering therefore yearly the sum of ten shillings, or a pepper-corn, or two days' ploughing, or the like." Uuder the pure feodal system, this render, reditus, return or rent, consisted in chivalry principally of military services; in villeinage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit." To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed.* (14) But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee.

5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated; as "provided always, [S00] that if the mortgagor shall pay the mortgagee 500l. upon such a day, the whole estate granted shall determine; and the like."

6. Warranty. (15)

6. Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted. By the feodal constitution, if the vasal's title to enjoy the feud was disputed, he might vouch, or call the lord or donor to warrant or insure his gift; which if he failed to do, and the vasal was evicted, the lord was bound to give him another feud of equal value in recompense. And so, by our ancient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered.

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w See pag. 41. * Plowd. 1S. 8 Rep. 71.
Appendix, No II. § 2. pag. viii.
c Co. Litt. 384.

b Feud. l. 2. t. 8 & 25.

(14) The reservation of rent should be during the term, and in that case it will pass as an incident to the reversion, without any words of reservation to the heir, &c. 2 Saund. 367. 2 Preston on Convey

ancing, 185.

(15) See the learned notes referred to in 2 Saund. Rep. index, tit. Warranty; Co. Litt. by Harg. and Butler, index to notes, tit. Warranty.


Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage (which was called homage auncestrel), this also bound the lord to warranty; the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty, because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title. But in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs ; because it is a mere personal contract on the part of the feoffor, the tenure (and of course the ancient services) resulting back to the superior lord of the fee. And in other forms of alienation, gradually introduced since that statute, no warranty whatsoever is implied; they [301] bearing no sort of analogy to the original feodal donation. And Express therefore in such cases it became necessary to add an express

clause warranty.

of warranty to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant

These express warranties were introduced, even prior to the sta tute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet if a clause of warranty was added to the ancestor's grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him a recompense in lands of equal value: the law, in favour of alienations, supposing that no ancestor would wantonly disinherit his next of blood ; and therefore presuming that he had received a valuable consideration, either in land or in money, which had purchased land, and that this equivalent descended to the heir together with the ancestors warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was lineal or collateral to the title of the land. Lineal Lineal war


d Litt. § 143.

b Ibid. 102.

• Co. Litt. 174.
1 Litt. § 733.

f Ibid. 384.
* Co. Litt. 373.


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