Sivut kuvina

ing, 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." (22)

delivery of

A seventh requisite to a good deed is, that it be delivered by the Seventhly; party himself or his certain attorney, which therefore is also expressed deed. (23) in the attestation; "sealed and delivered." A deed takes effect [307] only from this tradition or delivery; for 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, and by a parity of reason the signing also, and makes

h3 Lev. 1. Stra. 764.

(22) By 29 Car. II. 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 agreements specified in the first section, the agent must be authorized by writing, but in the fourth and seventeenth sections the words by writing are omitted, and a parol authority to the agent will be sufficient with respect to the contracts therein enumerated.

(23) Com. Dig. Fait, A. 3. & B. 5. Delivery is absolutely necessary to a deed, for it is a mere instrument under seal, not a deed, before delivery. The delivery by the party of the instrument as his act and deed is the formal declaration of his determination to complete the conveyance, or enter into the contract. See Sharrington v. Shotton, Plowd. 308. "When a man passes a thing by deed, first there is the determination of the mind to do it, and upon that he causes it to be written, which is one part of deliberation; and afterwards he puts his seal to it, which is another part of deliberation; and lastly, he delivers the writing as his deed, which is the consummation of his resolution; and by the delivery of the deed from him that makes it to him to whom it is made, he gives his assent to part with the thing contained in the deed to him to whom he delivers the deed, and this delivery is as a ceremony in law, signifying fully his good will that the thing in the deed should pass from him to the other. So that there is great deliberation used in the making of deeds, for which reason they are received as a lien final to

i Perk. § 130.

the party, and are adjudged to bind him without examining for what cause or consideration they were made." With regard to the delivery of a deed, no particular form or ceremony is necessary; it will be sufficient if a party testifies his intention in any manner, whether by action or word, to deliver or put it into the possession of the other party, as by throwing it down upon the table, with the intent that it may be taken up by the other party; or if a stranger deliver it with the assent of the party to the deed. Phil. Ev. 449. 9 Rep. 137. a. Com. Dig. tit. Evidence. (A. 3.) Proof that a party signed a deed which bears on the face of it a declaration that the deed was sealed by the party, is when the testimony of a subscribing witness cannot be obtained, or when he has no recollection on the subject, evidence to be left to a jury that the party sealed and delivered the deed. 7 Taunt. 251. 2 Marsh. 527. and see 17 Ves. J. 439. Peake R. 146. It is a question of fact for the jury upon the whole evidence, whether a bond was delivered as a deed to take effect from the moment of delivery, or at some future time. In Murray v. Earl Stair, Abbott, C. J. told the jury, that "to make the delivery conditional, it was not necessary that any express words should be used at the time, the conclusion was to be drawn from all the circumstances. It obviated all question as to the intention of the party, if at the time of delivery he expressly declared, that he delivered it as an escrow, but that was not essential to make it an escrow." 2 B. & C. 88. See also 4 B. & A. 440.


the attesta

tion. (24)

thod of attes


them both his own. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, 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.

The last requisite to the validity of a deed is the attestation, 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, which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only become the foundation of frequent dispute Ancient me- 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." This, like all other solemn transactions, was originally done only coram paribus, and frequently when assembled in the court-baron, hundred, or county-court; which was then expressed in the attestation, teste comitatu, hundredo, &c." Afterwards the attestation of other witnesses was allowed, the trial in case of a dispute being still [308] reserved to the pares; with whom the witnesses (if more than one) were associated and joined in the verdict ;° till that also was abro


J Co. Litt. 36. k Feud. l. 1. t. 4. 1 Co. Litt. 7. " Spelm. Gloss. 228. Madox. Formul. No 21. S22. 660.

(24) It is not essential to the validity of a deed, in general, that it should be executed in the presence of a witness. Com. Dig. Fait, B. 4. Phil. on Evid. 413 to 421. 4th ed. And where the names of two fictitious persons had been subscribed by way of attestation, the judge permitted the plaintiff, who had received the deed from the defendant in that deceitful shape, to give evidence of the bandwriting of the defendant himself; and where the subscribing witness denied any recollection of the execution, proof of his hand-writing was deemed sufficient. Peake Rep. 23. 146. 2 Camp. 635.

The distinction between executions of

m Feud. 1. 2. t. 32.
• Co. Litt. 6.

deeds at common law, and executions under powers, is fully established. It is a well known rule, that all the formalities and circumstances prescribed by a power are to be strictly observed. If a particular number of attesting witnesses is required, there must be that number. If they are to attest in a particular form, that form must be followed; and they must attest every thing that is necessary for the execution of the power. 4 Taunt. 214. 7 Taunt. 361. 17 Ves. 454. S. C. Also Sugden on Powers. But the 54 Geo. III. c. 168. aids the omission of a memorandum of attestation, when in fact the deed has been duly attested.

same manner.P


gated 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 But in the king's common charters, writs, or letters patent, the style is now altered: for at present the king is his own witness, and attests his letters patent thus: "Teste meipso, wit- Royal attesness ourself at Westminster, &c." a form which was introduced by Richard the First," 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 which was also the æra of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general; and therefore ever since that time the witnesses have usually subscribed their attestations, either at the bottom, or on the back of the deed.

how avoid

III. We are next to consider, how a deed may be avoided, or III, Deeds, rendered of no effect. And from what has been before laid down ed. (25) it will follow, that if a deed wants any of the essential requisites before-montioned; either, 1. Proper parties, and a proper subjectmatter: 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. (25) 2. By breaking off, or defacing the seal." (26) 3. By delivering it up to be can

[blocks in formation]

(25) See in general, Com. Dig. Fait, F. A deed may be considered as an entire transaction, operating as to the different parties from the time of execution by each, but not perfect till the execution by all. Any alteration made in the progress of such a transaction still leaves the deed valid as to the parties previously executing it, provided the alteration has not affected the situation in which they stood.

As thus, when A. executed there were blanks, which were filled up and interlineations made before B. executed, but as the filling up and interlineations did not affect A. the conveyance to C. was valid. 4 B. & A. 675.

t 11 Rep. 27.

Ibid. Dissert. fol. 32.
u 5 Rep. 23.

(26) See in general, Com. Dig. Fait, F. 2. It must be an intentional breaking off or defacing by the party to whom the other is bound, for if the person bound break off or deface the seal, it will not avoid the deed. Touchstone, c. 4. s. 6. 2. And if it appear that the seal has been affixed and afterwards broken off or defaced by accident, the deed will still be valid. Palm. 403. And the defacing or cancelling a deed will not in any case divest property which has once vested by transmutation of possession. 2 Hen. Bla. 263.; and see 4 B. & A. 675. If several join in a deed and be separately bound thereby, the breaking off the seal of one, with in

[309] celled; 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. (27) 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 anciently the province of the court of star-chamber, and now of the chancery: (28) when it appears that the deed was obtained by fraud, force, or other foul practice; or is proved to be an absolute forgery." 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.

Several spe

cies of deeds.

I. Convey

ances at com. mon law, are original or derivative.

[ 310 ]

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 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.

Original conveyances are the following; 1. Feoffment; 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are,

Toth. numo. 24. 1 Vern. 348.

tent to discharge him from future lia-
bility, will not alter the liability of the
others. 1 B. & C. 682.

(27) But when an estate has passed by
the deed, the merely cancelling it will
not suffice, but there must be a recon-
veyance, or in case of a lease, a surren-
der. 6 East, 86. 4 B. & A. 465.

(28) The courts of common law are equally competent to nullify the deed in such case, upon the principle that the mind not assenting, it is not the deed of the party sought to be charged by it; and there is no occasion to resort to a court of equity for relief, when evidence at law can be adduced. 2 T. R. 765.

7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance.

ment. (29)

1. A feoffment, feoffamentum, is a substantive derived from the 1. A feoffverb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi. It is the most ancient 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 mode of, the ancient feodal donation; for though it may be performed by the word, "enfeoff" or "grant," yet the aptest word of feoffment is, "do or dedi." 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." 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 praesumatur quam in donatione expresserit;"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. For as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, 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 and con- [ 311 ] stitution of the estate, hath given it a longer continuance. 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, 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 or 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 feoffeee has but a mere

* Co. Litt. 9.

b Co. Litt. 42.

2 Wright, 21.
See Appendix, No I.

a pag. 108. d Co. Litt. 9.

(29) See in general, Com. Dig. Feoffment; 2 Saunders, index, tit. Feoffment.

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