deed.

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,i 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.j20

i Perk., § 130.

ment, or that some note or memorandum in writing of the bargain be signed by the parties or their agents. This clause is extended by the 9th Geo. IV., c. 14, s. 7, to all contracts for the sale of goods of the value of ten pounds and upward, notwithstanding such goods are to be delivered at some future time, or may not, at the time of the contract, be actually made, or ready for delivery.

The other sections of the Statute of Frauds do not relate to the subject now under consideration.

It may be remarked, in conclusion, that a valid consideration is essential to make a binding agreement by parol, or writing not under seal; and, therefore, that a memorandum, which states what one party is to do, without stating or disclosing the consideration or inducement to his doing it, is not a complete memorandum of the agreement. (1 Cr. & Jerv., 464; 1 Scott, 668; 5 Mee. & W., 621; see 9 Ves., 251.)*

(20) 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. But an instrument may operate, although it is never parted with by the grantor. (3 Meriv., 256; 5 B. & Cr., 671.) And

Co. Litt., 36.

where a writing under hand and seal is
sufficient to effectuate any object, such
a writing, if not delivered, will be effect-
ual, although not stamped as a deed
within the Stamp Act. (1 East, 584.)
The delivery by the party of the instru-
ment as his act and deed is the formal
declaration of his determination to com-
plete the conveyance, or enter into the
contract. (See 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 writ-
ten, which is one part of deliberation;
and afterward 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 de-
liberation used in the making of deeds:
for which reason they are received as a
lien final to the party, and are adjudged
to bind him without examining for what
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.

Attestation.

21*

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 uncertainAncient 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),

method of

▲ Feud., l. 1, t. 4.

TY.]

(21) 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 handwriting of the defendant himself; and where the subscribing witness denied any recollection of the execution, proof of his handwriting was deemed sufficient. (Peake, Rep., 23, 146; 2 Camp., 635. See 10 Ves., 436; 11 Mee. & W., 161.)

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
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 de-
liver it with the assent of the party to
the deed. (Phil. Ev., 449; 9 Rep.,
137, a; Com. Dig., 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 can not be obtained, or when he
has no recollection on the subject, evi-
dence to be left to a jury that the party
sealed and delivered the deed. (7
Taunt., 251; 2 Marsh., 527; and see 17
Ves. Jun., 439; Peake, R., 146.) It is
a question of fact for the jury, upon the
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
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 es-

ticular 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; 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, § 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, § 1.)

66

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."l 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, 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.s22

tation.

how avoid

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 essentia! 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., 1. 2, t. 32.

n

Spelm., Gloss., 228. Madox, For

mul., No. 221, 322, 660.

。 Co. Litt., 6.

p 2 Inst., 77.

9 Madox, Formul., No. 515.
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. [CHRISTIAN.] suimus. Hiis testibus, &c. But after

that time the parties began to write

(23) 6 Mee. & W.,

200.

alteration

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 rasure, interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execuBreaking tion and attestation.t" 2. By breaking off or defacing the cellation. seal.u25 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;

the seal can.

Dissent.

By judg

ment or de

cree.

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.27 5. By the judgment or decree of a court of ju☐ 5 Rep., 23.

t 11 Rep., 27.

(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 possesblanks, 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 liabilTY.] 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.)—[CHITTY.] without the privity of either party, avoided a deed; but this has been overruled. (6 East, 309. See 4 T. R., 320.) Interlineations unexplained are, in bills of exchange, presumed to have been made subsequently to the execution; in deeds and other documents, prior to 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 ef material 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 in a material part (as in the name of the grantee) is void, and can not be set up by filling in the blank after execution. (6 Mee. & W., 200. See 9 East, 354.)

(25) See, in general, Com. Dig., Fait, F., 2. It must be an intentional break

(26) But when an estate has passed by the deed, the merely canceling it will not suffice, but there must be a reconveyance, or, in case of a lease, a surrender. (2 H. Bl., 259; 6 East, 86; 4 B. & A., 465.)-[CHITTY.]

to him. (See 1 Moore & Sc., 199.) If he have once assented to receive the estate, either by executing the deed by mere parol, or by conduct, such as by acting under the trusts, he can not afterward disclaim it. And if, while he affects to disclaim the estate, he conveys it to another by the same deed, that is an acceptance which estops him from

:

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.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.

cies of

And having thus explained the general nature of deeds, we Several speare next to consider their several species, together with their deeds. 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

1. Of conveyances by the common law, some may be called I. Convey. original 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.

or deriva

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.

ment.

1. A feoffiment, 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. 1 Vern., 348. saying that the estate never vested in him. (4 Ves., 97; 3 Myl. & Cr., 708.) It was formerly supposed that an estate of freehold could only be waived or disclaimed by matter of record. (Shepp., Touch., 285.) But it is now clear, upon principle and authority, that even a parol disclaimer is sufficient, though liable, of course (as a more solemn disclaimer would be), to be rebutted by evidence of previous assent. (See 4 Man. & R., 189, n.; 1 Vent., 128; 2 Id., 108; 3 B. & Ald., 31; 6 B. & Cr., 112; 10 Id., 80; 5 Mad., 435; 2 Scott, 128; 1 Myl. & K., 195; 3 Russ., 583.)

VOL. II-A A

* Co. Litt., 9.

(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 necessity to resort to a court of equity for relief, when evidence at law can be adduced. (2 T. R., 765.) The advantage of resorting to a court of equity is derived from the peculiar jurisdiction exercised by it of directing a deed that is void for any reason not apparent on the face of it to be delivered up, to be canceled; so that any danger from the loss of evidence is thus effectually prevented.

369