Sivut kuvina

signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other.h!

b 3 Lev., 1. Stra., 764.

(199 A brief account of the important consideration of marriage; or upon any provisions of the celebrated statute here contract or sale of lands, tenements, or referred to (29 Car. II., c. 3, “ An Act hereditaments, or any interests in or confor Prevention of Frauds and Perjuries") cerning them; or upon any agreement may not be out of place.

that is not to be performed within one Sect. 1 enacts, " that all leases, estates year from the making thereof; unless of freehold, or terms of years, or any un- the agreement, on which such action certain interest, of, in, to, or out of any shall be brought, or some note or memlands, tenements, or hereditaments, orandum thereof, shall be in writing, made or created by livery and seizin signed by the party to be charged, or by only, or by parol, and not put in writing some person by him lawfully authorized and signed by the parties so making or (which authority, in this instance, inay creating the same, or their agents there. be without writing). (7 Scott, 769.) unto lawfully authorized by writing, Upon this section, it seems to be setshall have the force and effect of leases tled that a contract for the sale of land. at will only."

lord's fixtures or of growing wood, unIt has generally been concluded that derwood, or grass, is a contract for the this enactment denjes effect to a lease or sale of an interest in land ; but that a conveyance by deed unsigned; but this contract for the sale of fixtures remov. has never been decided, and is not a able by the tenant or which go to the necessary consequence from the words, executor, or of growing crops in the nawhich only include “ leases, &c., made ture of emblements (such as potatoes, or created by livery and seizin only, or &c.), is not within this section. (6 East, by parol, and not put into writing, and 602; 1 You. & J., 396; 1 Cr., M. & R., signed,” &c. Now a lease or convey. 266; 5 B. & Cr., 829; 4 Mee. & W., ance by deed is certainly not made by 343.) Parol agreements within this seclivery and seizin only, or by parol, and tion, after being partly performed by therefore comes no more within the one party with the concurrence of the words of the statute than it does within other, will be enforced by a court of the description of the mischief intended equity, notwithstanding the statute. (14 to be prevented. (See Prest., Shepp., Ves., 387; 19 Id., 479; 1 Meriv., 7; 1 Touch., p. 57; 2 Gale & D., 163.) But Swanst., 181.) As to part execution at conveyances, assignments, and surren- law, see 12 East, 513. ders of cristing estates come within the Sect. 7 enacts, that all declarations or third section of the act, which is scarcely executions of trusts or confidences of open to the construction here contended any lands, tenements, or hereditaments for. In all cases, the affixing of a cor- shall be manifested and proved by some porate seal is a signature by such corpo- writing, signed by the party enabled to ration. (1 You. & C., 518.)

declare such trust. Sect. 2 excepts leases not exceeding Sect. 8 excepts trusts arising, transthree years from the making thereof, ferred, or extinguished by act of law. whereon a rent of two thirds at least of Sect. 9 requires all grants and assignthe value is reserved.

ments of trusts to be in writing, signed Sect. 3. That no leases, estates, or in- by the grantor or assignor. terests of freehold for years, or any un- Instances of implied trusts within the certain interest in lands, tenements, or 8th sect. are, where an estate is purchashereditaments (except copyhold or cus- ed in the name of one person, but the tomary lands), shall be assigned, grant- money is given by another; and where, ed, or surrendered, unless it be by deed upon a conveyance or devise, a trust is or note in writing, signed by the party declared as to part of the estate or interBO assigning, &c., or his agent lawfully est, and nothing said as to the rest; what authorized in writing, or by act and op- remains undisposed of results to the eration of law.

grantor or the devisor's heir. (2 Atk., Sect. 4 enacts, that no action shall be 150.) brought upon any special promise by an Sect. 17 enacts, that no contract for executor or administrator, to answer the sale of any goods, wares, and mer. damages out of his own estate; or upon chandises for the price of ten pounds any special promise to answer for the sterling or upward, shall be good, except debt, default, or miscarriage of another the buyer accept part of the goods sold. person ; or upon any agreement upon or give something in earnest or part pay.

A seventh requisite to a good deed is that it be delivered by Delivery of the party himself or his certain attorney ; which, therefore, is also expressed in the attestation, “ sealed and delivered.A [307] deed takes effect 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 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 Escrow. 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.ja

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ment, or that some note or memorandum where a writing under hand and seal is in writing of the bargain be signed by sufficient to effectuate any object, such the parties or their agents. This clause a writing, if not delivered, will be effectis extended by the 9th Geo. IV., c. 14, s. ual, although not stamped as a deed 7, to all contracts for the sale of goods of within the Stamp Act. (1 East, 584.) the value of ten pounds and upward, The delivery by the party of the instrunotwithstanding such goods are to be de- ment as his act and deed is the formal livered at some future time, or may not, declaration of his determination to comat the time of the contract, be actually plete the conveyance, or enter into the made, or ready for delivery.

contract. (See Plowd., 308.) " When The other sections of the Statute of a man passes a thing by deed, first, there Frauds do not relate to the subject now is the determination of the mind to do under consideration.

it, and upon that he causes it to be writIt may be remarked, in conclusion, ten, which is one part of deliberation; that a valid consideration is essential to and afterward he puts his seal to it, which make a binding agreement by parol, or is another part of deliberation; and, writing not under seal; and, therefore, lastly, he delivers the writing as his that a memorandum, which states what deed, which is the consummation of his one party is to do, without stating or dis- resolution ; and by the delivery of the closing the consideration or inducement deed from him that makes it to him to to his doing it, is not a complete mein- whom it is made, he gives his assent to orandum of the agreement. (1 Cr. & part with the thing contained in the deed Jerv., 464; 1 Scott, 668; 5 M & W., to him to whom he delivers the deed, 621; see 9 Ves., 251.)*

and this delivery is as a ceremony in law,

signifying fully his good-will that the (20) Com. Dig., Fait, A. 3 & B. 5. thing in the deed should pass from him Delivery is absolutely necessary to a to the other. So that there is great dedeed, for it is a mere instrument under liberation used in the making of deeds: seal, not a deed before delivery. But for which reason they are received as a an instrument may operate, although it lien final to the party, and are adjudged is never parted with by the grantor. (3 to bind him without examining for what Meriv., 256; B. & Cr., 671.) And cause or consideration they were made."

* The substance of sections 1, 2, 3, 7, 8, and 9, adverted to in note (19), is contained in 2 R. S., 134, ý 6, in these words: “No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his

lawful agent thereunto authorized by writing.” Sections 4 and 17 of the act 29 Car. Iß., c. 3, will be noted infra.


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. 21* 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, 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),

* Feud., l. 1, t. 4.

Ancient method of attestation.

With regard to the delivery of a deed, crow.” (2 Barn. & Cress., 88. See,
no particular form or ceremony is neces- also, 4 Barn. & Ald., 440; 5 Man. &
sary; it will be sufficient if a party test- Selw., 223; 3 Per. & Dav., 499; 8 Car.
ifies his intention in any manner, wheth- & P., 124; 11 Mee. & W., 128.)-[CHIT-
er by action or word, to deliver or put it ty.]
into the possession of the other party, as
by throwing it down upon the table, (21) It is not essential to the validity
with the intent that it may be taken up of a deed, in general, that it should be
by the other party; or if a stranger de executed in the presence of a witness.
liver it with the assent of the party to (Com. Dig., Fait, B. 4; Phil. on Evid.,
the deed. (Phil. Ev., 449; 9 Rep., 413 to 421, 4th ed.) And where the
137, a; Com. Dig., Evidence, (A., 3).) names of two fictitious persons had been
Proof that a party signed a deed which subscribed by way of attestation, the
bears on the face of it a declaration that judge permitted the plaintiff, who had
the deed was sealed by the party, is, received the deed from the defendant in
when the testimony of a subscribing that deceitful shape, to give evidence of
witness can not be obtained, or when he the handwriting of the defendant lim-
has no recollection on the subject, evi- self; and where the subscribing witness
dence to be left to a jury that the party denied any recollection of the execution,
sealed and delivered the deed. (7 proof of his handwriting was deemed
Taunt., 251; 2 Marsh., 527; and see 17 sufficient. (Peake, Rep., 23, 146; 2
Ves. Jun., 439; Peake, R., 146.) It is Camp., 635. See 10 Ves., 436; 11 Mee.
a question of fact for the jury, upon the & W., 161.)
whole evidence, whether a bond was The distinction between executions
delivered as a deed to take effect from of deeds at common law and executions
the moment of delivery, or at some fu- under powers is fully established. It
ture time. In Murray v. Earl Slair, is a well-known rule, that all the for.
Abbott, C. J., told the jury, that “ to malities and circumstances prescribed
make the delivery conditional, it was by a power are to be strictly observed.
not necessary that any express words If a particular number of attesting wit-
should be used at the time; the conclu- nesses is required, there must be that
sion was to be drawn from all the cir- number. If they are to attest in a par-

It obviated all question as ticular form, that form must be followed, to the intention of the party, if at the and they must attest every thing that is time of delivery he expressly declared necessary for the execution of the power. that he delivered it as an escrow, but (4 Taunt., 214; 7 Taunt., 361; 17 Ves., that was not essential to make it an es- 454; Sugden on Powers.)-[Chitty]


* In New York, a deed of lands must be attested by at least one witness, or acknowledged by the grantor before a proper officer, to render it effective against a purchaser or encumbrancer.-(1 R. s., 738, Ø 137.) The attestation or acknowledgment, however, is not the last requisite to the validity of a deed conveying land. It must be recorded in the office of the clerk of the county within which the estate is situated, or it will be deemed void as against a subsequent purchaser in good faith and for a valuable consideration, whose conveyance shall be first duly recorded.-(1 R. 8., 756, Ø 1.)

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,m and frequently when assembled in the court baron, hundred, or county court; which was then expressed in the attestation, teste comitatu, hundredo, &c. Afterward the attestation of other witnesses was al- [ 308 ] lowed, 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 ;o 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 Charta, 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 char- Royal attes. ters, 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, 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 ;' which was also the era 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 attestation, either at the bottom or on the back of the deed. 522


III. We are next to consider how a deed may be avoided, III. Deeds, or rendered of no effect. And from what has been before laid ed. 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, be

1 Co. Litt., 6.
m Feud., l. 2, t. 32.

Spelm., Gloss., 228. Madox, Formul., No. 221, 322, 660.

o Co. Litt., 6.

P 2 Inst., 77.
9 Madox, Formul., No. 515.
r Ibid., Dissert., fol. 32.
• 2 Inst., 78. See page 378.

(22) From the few laconic deeds of their names over or near the seal. And antiquity, being mostly feoffments, in the reign of Hen. VIII., in general, which I have had an opportunity of they are signed by the parties, but not seeing, I have observed that in the by the witnesses; but in the next reign reign of Edw. IV., and before that the practice commenced, that the wittime, they were subscribed neither by nesses, whom the parties intended the parties nor the witnesses. But they should afterward prove the execution conclude, In cujus rei testimonium huic of the instrument, should also subscribe charta (vel scripto) nostra sigilla appo- their names.

8.—[Christian.] suimus. Hiis testibus, &c. But after that time the parties began to write (23) 6 Mee. & W., 200.


fore the execution ; 6. Sealing; and, by the statute, in most

cases signing also ; or, 7. Delivery; it is a void deed ab initio. Erasure or It may also be avoided by matter ex post facto ; as, 1. By ras

ure, interlining, or other alteration in any material part; un

less a memorandum be made thereof at the time of the execuBreaking

tion and attestation.tat 2. By breaking off or defacing the the seal can.

seal.u? 3. By delivering it up to be canceled ; that is, to have [ 309] 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, Dissent. 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 ; By judg, and the like.?" 5. By the judgment or decree of a court of ju+ 11 Rep., 27.

u 5 Rep., 23.


ment or de cree.

(24) See, in general, Com. Dig., Fait, ing off or defacing by the party to whom F. A deed may be considered as an the other is bound; for if the person entire transaction, operating, as to the bound break off or deface the seal, it different parties, from the time of exe- will not avoid the deed. (Touchstone, cution by each, but not perfect till the c. 4, s. 6, 2.) And if it appear that execution by all. Any alteration made the seal has been affixed and afterward in the progress of such a transaction broken off or defaced by accident, the still leaves the deed valid as to the deed will still be valid. (Palm., 403. parties previously executing it, pro- See 1 B. & Cr., 682.) And the devided the alteration has not affected facing or canceling a deed will not, in the situation in which they stood. As any case, divest property which has thus : when A. executed, there were once vested by transmutation of posses blanks, which were filled up, and inter- sion. (2 Hen. Bla., 263; and see 4 B. lineations made before B. executed ; & A., 675.) If several join in a deed but, as the filling up and interlineations and be separately bound thereby, the did not affect A., the conveyance to C. breaking off the seal of one, with inwas valid. (4 B. & A., 675.)-[Chit- tent to discharge him from future liabil. TY.] The old doctrine was, that alter- ity, will not alter the liability of the othations in a material part by a stranger, ers. (1 B. & Cr., 682.) – [Cuttv.] without the privity of either party, avoided a deed; but this has been over- (26) But when an estate has passed ruled. (6 East, 309. See 4 T. R., 320.) by the deed, the merely canceling it Interlineations unexplained are, in bills will not suffice, but there must be a reof exchange, presumed to have been conveyance, or, in case of a lease, a surmade subsequently to the execution; render. (2 H. Bl., 259; 6 East, 86; 4 in deeds and other documents, prior to B. & A., 465.)—[Chitty.] it. (2 Moo. & P., 289; 3 Nev. & P., 375; 1 Keb., 22.) Immaterial altera- (27) Although the law may cast an tions or additions seem to have no effect estate upon a person against his will, no upon the validity of a deed; and even conveyance or devise will have that efmaterial alterations, though generally fect. (3 B. & Ald., 36.) In the ab. ineffectual, will not invalidate it, if sence of any evidence to the contrary, made with the consent of all parties however, the assent of the grantee or concerned. (See 2 Moore, 495 ; 12 devisee will be presumed, especially if East, 471; 2 Moo. & P., 663; 3 Meriv., such presumption would be beneficial 756.) But a deed which is left blauk to him. (See 1 Moore & Sc., 199.) If in a material part (as in the name of he have once assented to receive the esthe grantee) is void, and can not be set tate, either by executiug the deed by up by filling in the blank after execu- mere parol, or by conduct, such as by tion. (6 Mee. & W., 200. See 9 East, acting under the trusts, he can not after. 354.)

ward disclaim it. And if, while he af

fects to disclaim the estate, he conveys (25) See, in general, Com. Dig., Fait, it to another by the same deed, that is F., 2.' It must be an intentional break- an acceptance which estops him from

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