CHAPTER THE TWENTIETH.

OF ALIENATION BY DEED.

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, it's 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 it's materials; but most usually when applied to the transactions of private subjects, it is called a deed, in Latin factum, xar' oxy, 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 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

Deeds thus made were

on one part and half on the other. denominated syngrapha by the canonists; and with us chirographa, or hand-writings ; 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 deedpoll, or a single deed .

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 subject-matter to be contracted for all which must be expressed by sufficient names'. 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.

SECONDLY, the deed must be founded upon good and sufficient consideration. Not upon an usurious contract; nor upon fraud or collusion, either to deceive purchasors bona fide", or just and lawful creditors; 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. (1) A deed also, or other grant, made without any

Lyndew. l.1. t. 10. c.1.

d Mirror. c. 2. § 27.
Ibid. Litt. § 371, 372.

f Co. Litt.35.

Stat. 12 Anne, st. 2. c. 16.
Stat. 27 Eliz. c.4.

i Stat. 13 Eliz. c.5.

(1) The deed will not be void as between the parties themselves, that is, the grantor or grantee cannot vacate their own act, but it will be void as

against

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. (2) The consideration may be either a good or a [297] valuable one. A good consideration is such as that of 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: 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 purchasors.

THIRDLY; the deed must be written, or I presume printed, 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. Wood or

k Perk. § 533.

1

3 Rep. 83.

m Co. Litt.229. F. N. B. 122.

against bona fide purchasors and lawful creditors. The purchasor here intended must have bought for a valuable consideration, and as against him a voluntary grant, or one made on good consideration, is held fraudulent merely because voluntary, and will be set aside even though he had notice of its existence before he paid his purchase money. See the luminous judgment pronounced by Lord Ellenborough to this effect, in the case of Otley v. Manning, 9 East. p. 59. in which all the prior decisions were reviewed, and those overturned, which had laid down, that there must be some circumstance of actual fraud in the first deed, beyond the want of valuable consideration, in order to make it void.

(2) This sentence is not quite accurately worded; from the expression "deed or other grant," it might be inferred that a deed was a species of grant, whereas a grant is only one mode of conveyance by deed; next, it is not true that all deeds, or all grants made without consideration, are of no effect, for, 1st, As to all deeds which operate at common law, or by transmutation of possession, I imagine that they will be valid at law to pass the estates they profess to pass, as against the grantor, though made without any consideration; and 2dly, As to deeds which operate under the statute of uses, they create a use which results to the grantor. To all appearance, indeed, no change is made in the grantor's title or rights by such a deed, yet that it is without effect in law, cannot be said, because it works such an alteration in the grantor's estate, from that which he had before, that any devise of the lands made before the date of the deed will take no effect, unless the will be republished, that is in fact new made.

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. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 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.

FOURTHLY; the matter written must be legally and 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 law to determine". For it is [298] 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; and therefore I will here mention them in their usual 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 ¶. 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'. But, had it been in the premises " to him and his heirs," habendum " to him "for life," the habendum would be utterly void; 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 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 "burgagio, in libero socagio, &c." But all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia 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 antient charters, that the tenements shall be holden de capitalibus dominis feodi'; but as this expressed nothing more than the statute had already provided for, it gradually grew out of use.

See Appendix, N° II. § 1: pag.v.

Ibid.

$2 Rep. 23. 8 Rep. 56.

Appendix, N° 1. Madox. Formul.

' Co. Litt. 21. 2 Roll. Rep.19.23. passim. Cro. Jac. 476.