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A seventh requisite to a good deed is that it be delivered by Delivery of

deed. 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 i Perk., Ø 130.

1 Co. Litt., 36.

a

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 mem- 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 Mee. & 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; 5 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, 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. II., c. 3, will be noted infra.

21*

Attestation. 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 ;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 uncertain

ty. To this end they registered in the deed the persons who attestation, attended as witnesses, which was formerly done without their signing their names (that not being always in their power),

Feud., 1. 1, t. 4.

Ancient method of

.

a

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 Mau. &
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 him-
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 Stair, 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.
cumstances. 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. S., 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 as-
sembled 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 asso-
ciated 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 Charta, witnessed. And in
the time of Sir Edward Coke, creations of nobility were still wit-
nessed 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 pat-
ent 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 centu-
ry; nor the clause of hijs testibus entirely discontinued till the
reign of Henry the Eighth ;' which was also the era of discon-
tinuing 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 at-
testation, either at the bottom or on the back of the deed.543

tation.

how avoid

III. We are next to consider how a deed may be avoided, I.L. 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

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

Spelm., Gloss., 228. Madox, For-
mul., No. 221, 322, 660.

o Co. Litt., 6.

P 2 Inst., 77.
9 Madox, Formul., No. 515.

Ibid., Dissert., fol. 32.
8 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 wit.
time, 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.—[Christian.]
suimus. Hiis testibus, &c. But after
that time the parties began to write (23) 6 Mee. & W., 200.

alteration

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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.t* 2. By breaking off or defacing the tellation an seal.us 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, 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.27 5. By the judgment or decree of a court of ju+ 11 Rep., 27.

u 5 Rep., 23.

.

Dissent.

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, 8. 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.)—[OHITTY.] 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 ; 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 abineffectual, 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 blank 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 executing 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 after354.)

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

28

.] FORMS OF CONVEYANCES. -1. FEOFFMENTS. dicature. This was anciently 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. 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.

W

cies of deeds.

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And having thus explained the general nature of deeds, we Several spe. 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.

ances at

ar deriva

1. Of conveyances by the common law, some may be called I. Conveyoriginal or primary conveyances; which are those by means common law whereof the benefit or estate is created or first arises: others are original are derivative or secondary; whereby the benefit or estate tive. 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, 7. Release ; 8. Confirmation; 9. Surrender ; 10. Assignment; 11. Defeasance,

1. A feoffment, feoffamentum, is a substantive derived from 1. A feoffthe verb, to enfeoff, feoffare or infeudare, to give one a feud; and, therefore, enfeoffment is properly donatio feudi. It is the w Toth., Numo., 24. i Vern., 348.

* Co. Litt., 9.

ment.

saying that the estate never vested in (28) The courts of common law are him. (4 Ves., 97; 3 Myl. & Cr., 708.) equally competent to nullify the deed

It was formerly supposed that an es- in such case, upon the principle that, tate of freehold could only be waived or the mind not assenting, it is not the disclaimed by matter of record. (Shepp., deed of the party sought to be charged Touch., 285.) But it is now clear, upon by it; and there is no necessity to reprinciple and authority, that even a pa- sort to a court of equity for relief

, when rol disclaimer is sufficient, though liable, evidence at law can be adduced. (2 of course (as a more solemn disclaimer T. R., 765.) The advantage of resortwould be), to be rebutted by evidence ing to a court of equity is derived from of previous assent. (See 4 Man. & R., the peculiar jurisdiction exercised by it 189, n.; 1 Vent., 128; 2 Id., 108; 3 B. of directing a deed that is void for any & Ald., 31; 6 B. & Cr., 112; 10 Id., reason not apparent on the face of it to 80; 5 Mad., 433; 2 Scott, 128; 1 Myl. be delivered up, to be canceled; so that & K., 195; 3 Russ., 583.)

any danger from the loss of evidence is

thus effectually prevented. VOL. II -AA

369

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