sons to whom the proprietor, by his own voluntary act, should choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred; or with regard to the subject-matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed. These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is (according to the old common law), upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in its order.. CHAPTER XX. OF ALIENATION BY DEED (1). IN treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided. I. First, then, a deed is a writing sealed and delivered by the parties (a). It is sometimes called a charter, carta, from its materials; but most usually when applied to the transactions of private subjects, it is called a deed, in Latin factum, xar' ε§ozŋ, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed (b). If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of (a) Co. Litt. 171. (1) See in general, Com. Dig. Fait; Cru. Dig. index, Deed; Vin. Ab. Deed; Bac. Ab. Obligations; and see 3 Chitty's Com. L. 5. to (b) Plowd. 434. 11. as to the requisites of deeds and the distinctions between them and other contracts and instruments. parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on *one part and half on the other. Deeds thus made were deno- [*296] minated syngrapha by the canonists (c); and with us chirographa, or hand-writings (d); the word cirographum or cyrographum being usually that which is divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose, than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed (e). II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with for the purposes intended by the deed: and also a thing, or subjectmatter to be contracted for; all which must be expressed by sufficient names (f). So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised. tion. Secondly, the deed must be founded upon good and sufficient consideraNot upon an usurious contract (g); nor upon fraud or collusion, either to deceive purchasors bona fide (h), or just and lawful creditors (i); any of which bad considerations will vacate the deed, and subject such persons, as put the same in ure, to forfeitures, and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect for it is construed to enure, or to be effectual, only to the use of the grantor himself (k). The consideration may be either *a good or a valuable one. A good consideration is such as that of [*297] blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty; a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant (1): and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasers (2). (c) Lyndew. l. 1, t. 10, c. 1. (d) Mirror, c. 2, § 27. (e) Mirror, c. 2, 27. Litt. ◊ 371, 372. (f) Co. Litt. 35. (g) Stat. 13 Eliz. c. 8. (2) This it has been said applies only to the case of a bargain and sale; for "herein it is said to differ from a gift which may be without any consideration or cause at all; and that (a bargain and sale) hath always some meritorious cause moving it, and cannot be without it." Shep. Touch. 221. A voluntary conveyance is good both in law and equity against the party himself. Tr. of Eq. b. 1. c. (h) Stat. 27 Eliz. c. 4. 5. s. 2. It was originally considered that if a person made a voluntary grant of lands, although he could not resume them himself, yet if he afterwards made another conveyance of them for a valuable consideration, the first grant would be void with regard to this purchaser under the 27 Eliz. c. 4. And though decided by lord Mansfield and the court that there must be some circumstance of fraud to For Thirdly; the deed must be written, or I presume printed (4), for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed (m). Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration: nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. merly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the sta tute 29 Car. II. c. 3. enacts, that no lease-estate or interest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value), shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid: unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized in writing (5), (6). (m) Co. Litt. 229. F. N. B. 122. vacate the first conveyance, and that the want of consideration alone was not sufficient. See Cowp. 705. Yet it was more recently determined in the case of Doe d. Otley v. Manning, 9 East, 59. that a voluntary settlement of lands made even in consideration of natural love and affection, and in favour of the nearest relation, as parents and children, is void, as against a subsequent purchaser for a valuable consideration, though with notice of a prior settlement before all the purchase money was paid or the deeds executed, and there was no fraud in fact in the transaction; for the law which is in all cases the judge of fraud and covin arising out of facts and intents, infers fraud in this case upon the construction of the 27 Eliz. c. 4. And it was remarked by lord Ellenborough in delivering the judgment of the court, that in the case of Doe v. Routledge, above referred to (and in which it was considered that lord Mansfield had established as a point of law, that the settlement must be fraudulent, as well as voluntary, to render it void), there was no bona fide purchaser, and that "a marriage was had upon the strength of that settlement," which is a good consideration. If a person is indebted at the time of making a voluntary grant, or becomes so soon afterwards, it will be held fraudulent and void with respect to creditors under the 13 Eliz. c. 5. and 6 Geo. IV. c. 16. Though a consideration is not in general essential to a deed. 7 T. R. 475. (3) (3) In New-York, the law against fraudulent conveyances is contained in 2 R. S. 134, &c. but (id. 137, 4,) makes the question of fraud a question of fact and not of law; and declares that a conveyance shall not be adjudged fraudulent solely on the ground that it was not founded on a valuable consideration. See the cases in New-York, collected in 1 Johns. Dig. 206, 207. A grantee ignorant of the fraud of the grantor, is not affected in his title by a subsequent purchase by one who has notice of the prior conveyance. (Id. 134, § 2.) (4) Com. Dig. Fait, A. 3 Chitty's Com. L. 6. There seems no doubt that it may be printed, and that if signatures be requisite the name of a party in print at the foot of the instrument would suffice. 2 M. & S. 288. (5) In New-York, no estate in lands, except leases for a term not exceeding one year, is valid, unless it be in writing subscribed by the grantor, or by his agent authorized in writing, or be created by operation of law. And no contract for any greater estate is valid, unless it be in writing signed by the owner of the estate or his agent. (2 R. S. 134, 6, &c.) Every grant of a freehold estate must be subscribed and sealed by the grantor or his agent. (1 R. S. 738, § 137.) (6) Courts of equity, though the practice has been lamented, have long been in the habit of deciding, upon equitable grounds, in contradiction to this positive enactment. The earliest case of the kind appears to have been that of Forcraft v. Lyster, (Colles' P. C. 108). By the highest tribunal of the realm, it was held to be against conscience to suffer a party who had entered into lands, and expended his money, on the faith of a parol agreement, to be treated as a trespasser; and for the other party, in fraud of his engagement, (although that was only verbal), to enjoy the advantage of the money so laid out. This determination, though in the teeth of the act of Parliament, was clearly founded on sound abstract principles of natural justice; and confirmed as it has been by an almost daily succession of analogous authorities, is not now to be questioned. It is settled also, that trusts of lands arising Fourthly; the matter written must be legally or orderly set forth: that is, there must be words sufficient to specify the agreement and bind the parties; which *sufficiency must be left to the courts of [*298] law to determine (n) (7). For it is not absolutely necessary in law to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity (8); and therefore I will here mention them in their usual (0) order. 1. The premises may be used to set forth the number and names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted (p). 2, 3. Next come the habendum and tenendum (q). The office of the habendum is properly to determine what estate or interest is granted by the deed though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As if a grant be "to A and the heirs of his body," in the premises; habendum “to him and his heirs for ever," or vice versa; here A has an estate-tail, and a fee-simple expectant thereon (r). But, had it been in the premises "to him and his heirs ;" habendum "to him for life," the habendum would be utterly void (s); for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. The tenendum, "and to hold," is now of very by implication, or operation of law, are not within the statute of frauds; if they were, it has been said, that statute would tend to promote frauds rather than prevent them. (Young v. Peachy, 2 Atk. 256, 257. Willis v. Willis, 2 Atk. 71. Anonym. 2 Ventr. 361.) The statute of frauds enacts, that no agreement respecting lands shall be of force, unless it be signed by the party to be charged; but the statute does not say that every agreement so signed shall be enforced. To adopt that construction would be, to enable any person who had procured another to sign an agreement, to make it depend on his own will and pleasure whether it should be an agreement or not. Lord Redesdale, indeed, has intimated a doubt, whether in any case (not turning upon the fact of part performance) an agreement ought to be enforced, which has not been signed by, or on behalf of, both parties; (Lawrenson v. Butler, 1 Sch. & Lef. 20. O'Rourke v. Percival, 2 Ball. & Beat. 62); Lord Hardwicke and Sir Wm. Grant held a different doctrine (Backhouse v. Mohun, 3 Swanst. 435. Fowle v. Freeman, 9 Ves. 354. Western v. Russel, 3 Ves. & Bea. 192); Lord (r) Co. Litt. 21. 2 Roll. Rep. 19. 23. Cro. Jac. 476. (s) Rep. 23. 8 Rep. 56. Eldon, without expressly deciding the point, seems to have leaned to Lord Redesdale's view of the question; (Huddlestone v. Biscoe, 11 Ves. 592); and Sir Thomas Plumer wished it to be considered whether, when one party has not bound himself, the other is not at liberty to enter into a new agreement with a third person. (Martin v. Mitchell, 2 Jac. & Walk. 428). (7) If a deed correctly describe land by its quantities and occupiers, though it describe it as being in a parish in which it is not, the land shall pass by the deed. 5 Taunt. 207. A deed made with blanks and afterwards filled up and delivered by the agent of the party, is good. 1 Anst. 229. 4 B. & A. 672. And the palpable mistake of a word will not defeat the manifest intent of the parties. Dougl. 384. (8) The maxim in pleading in favour of following approved precedents "num nihil simul inventum est et perfectum," may well be applied to conveyancing. Co. Litt. 230. a. Frequently the reason for using particular expressions will appear after many years study, when before, upon a cursory consideration, the words seemed unnecessary, if not improper. 86 little use, and is only kept in by custom. It was sometimes for [*299] merly *used to signify the tenure by which the estate granted was to be holden; viz. "tenendum per servitium militare, in burgegio, in libero socagio, &c." But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quis emptores, 18 Ed. I., it was also sometimes used to denote the lord of whom the land should be holden but that statute directing all future purchasors to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi (t); but as this expressed nothing more than the statute had already provided for, it gradually grew out of use. 4. Next follow the terms of stipulation, if any, upon which the grant is made the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as "rendering therefore yearly the sum of ten shillings, or a pepper-corn, or two days' ploughing, or the like" (u). Under the pure feodal system, this render, reditus, return or rent, consisted in chivalry principally of military services; in villeinage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit (w). To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed (1). But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee (y). 5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated: as "provided always, that if the mortga [*300] gor shall pay the mortgagee *5001. upon such a day, the whole estate granted shall determine; and the like (z). 6. Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted (a). By the feodal constitution, if the vassal's title to enjoy the feud was disputed, he might vouch, or call the lord or donor to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense (¿). And so, by our ancient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift), were originally stipulated to be rendered (c). Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage (which was called homage auncestrel), this also bound the lord to warranty (d); the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are (t) Appendix, N° 1. Madox. Formul. passim. (u) Ibid. No II. ◊ 1, pag. iii. (w) See pag. 41. (z) Plowd. 13. 8 Rep. 71. (y) Appendix, N° I. pag. i. (z) Ibid. N° II. § 2, pag. viii. (a) Ibid. No I. pag. i. (b) Feud. 1. 2, t. 8 & 25. (d) Litt. 143. |