Attestation. Ancient method of 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.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. 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, * 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.) 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, 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 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 (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. Breaking the seal can 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 execution and attestation. t 2. By breaking off or defacing the cellation. seal. 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; and the like." 5. By the judgment or decree of a court of ju☐ 5 Rep., 23. Dissent. By judg ment or de cree. ↑ 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 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.)—[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 to him. (See 1 Moore & Sc., 199.) If 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.] 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 after. ward disclaim it. And if, while he af fects 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 I. 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. or deriva Original conveyances are the following: 1. Feoffment; 2. [310] Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeasance. ment. 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 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 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."y 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 præsumatur, quam in donatione expresserit;" 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 [311] express provision in the creation and constitution 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 forever; though it serves equally well to convey any other estate of freehold.d Livery of seizin. 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 seizin; without which the feoffee has but a mere estate at will. This livery of seizin is no other than the pure feodal investiture, or delivery of corporeal possession of the land or tenement; which was held absolutely necessary to complete the donation. Nam feudum sine in y Co. Litt., 9. z Wright, 21. a Page 108. b Co. Litt., 42. (29) This definition is not sufficiently precise; it requires the addition of words to this effect: "by the delivery of seizin and possession of the thing given." (Shepp., Touchst., 203.) In 66 See Appendix, No. I. d Co. Litt., 9. • Litt., § 70. strictness, the word is not applicable unless an estate in fee-simple passes; where the conveyance is merely of an estate for life, it is properly called a lease; of an estate-tail, a gift. The mode of conveyance of lands by feoffment with livery of seizin is abolished in New York.-(1 R. S., 738, § 136.) |
