of this, by raising presumptions in favor of the regularity of proceedings, under which a deed, regular in form, shall have been executed and delivered.1 29. But if, in the case of a sale by a sheriff, guardian, &c., a judgment and execution, or order or decree, and sale be established, it is not competent to impeach the title by contradicting the deed, made in pursuance of the power thus vested in the officer, by evidence that he did not make it under that power, but some other, or that he did not intend to sell a part of what is conveyed.2 30. And it may be added that, as a general proposition, where a statute requires a ministerial officer, like a sheriff, to make a return of his doings in making a levy for instance upon land, such return is conclusive evidence between the creditor and debtor in the execution, and all persons claiming under them respectively.3 1 Hamilton v. Adams, 1 Murph. 161; Jackson v. Roberts, 11 Wend. 425; Minor v. President of Natchez, 4 S. & M. 602; Dunn v. Meriwether, 1 A. K. Marsh. 158; Weyand v. Tipton, 5 Serg. & R. 332; Ware v. Bradford, 2 Ala. 676; Bledsoe v. Doe, 4 How. (Miss.), 25; Den v. Wheeler, 11 Ired. 288; Doe v. Bedford, 10 Ired. 198. 2 Jackson v. Roberts, 11 Wend. 425; Snyder v. Snyder, 6 Binn. 489; Jackson v. Croy, 12 Johns. 427; Jackson v. Vanderheyden, 17 Johns. 167. See Minor v. President of Natchez, 4 S. & M. 602; Ware v. Bradford, 2 Ala. 676. 8 Bott v. Burnell, 11 Mass. 163, 165; Whitaker v. Sumner, 7 Pick. 551, 555. See . Butts v. Francis, 4 Conn. 424. 5. Essentials of a good deed as given by Coke. 6. Must be written on paper or parchment. 7. Must be wholly written before delivery. 8. Effect of erasures and interlineations in a deed. 9, 10. Which party is to explain erasures, &c., in a deed. 11. How erasures, &c., should be noted. 12. After title passed, alterations in deeds, of no effect. 13. Who may be parties to a deed. 14. Deeds of femes covert. 15. Deeds of persons non sane. 16. Deeds by infants. 29. 30. 31. 32, 33. Of the use of Christian names. A deed in the alternative void. No person not named can take a present estate. Grantee need not be named if ascertained. When grantee must be shown to be a person in esse. *34. Capacity of grantees less restricted than that of grantors. 35. [*550] 1. Although, at the present day, the mode in universal use, by which one individual aliens or conveys his land to another, is by deed, it should not be forgotten that the requirement of a formal instrument in writing, in order to pass title to lands themselves, is as recent as Charles the Second, near seventy years after the first settlement of Virginia, 182 years before the J. Davis rebellion. It should be remembered too, as a part of the social and political history of the kingdom, whose subjects settled these colonies, that for more than two hundred years after the Norman Conquest, the principle of free alienation of lands was ignored by the English law, and was only yielded, at last, to the imperative demands of a freer spirit and growing commerce among the people.' Under the Saxon rule, lands were, substantially, free in their capacity of alienability, at least such parts of them as were held by charter, called Boc-lands, and had been allotted to individual *proprietors, who had not only an absolute title thereto, but [*552] also a purely allodial tenure. In making conveyances of these lands, no technical or set form was requisite, nor was it necessary that it should be done in writing, though it was usual to aceompany the transfers of such land by a charter or land-boc. Sometimes the conveyance was made by a delivery of possession by symbol. But the symbol or the boc was regarded not as the conveyance or transfer, but only as a mode of proof of its having been made. *NOTE.- Barrington states that the oldest conveyance of which we have any account, was that of the cave of Macpelah, from the sons of Heth to Abraham. He quotes from Genesis xxiii, and remarks, that it had many unnecessary and redundant words, though the parcels, in a modern conveyance, cannot well be more minutely particularized. "And the field of Ephraim which was in Macpelah, which was before Mamre, the field and the cave which was therein, and all the trees that were in the field, that were in all the borders round about, were made sure unto Abraham." Barrington, Statutes, 4th ed. 175. These bocs were, usually, deposited for safe keeping in monasteries, and were the title deeds of the great proprietors, which the conqueror was eager to seize upon and destroy, that all the lands in the kingdom might only be claimed through his own grant. The change in the tenure of lands, and the obstructions interposed in the way of their free alienation under the first Norman kings of England, have been, perhaps, sufficiently referred to in a former part of this work. And although charters, as evidence of title, had been common, there was no law which required a deed or other written instrument, as a means of conveying lands, prior to the statute of frauds, so called, 29 Charles II., although the statute of Quia Emptores had made lands freely alienable, and the statute of uses had done away, substantially, with the form of livery of seisin or feoffment known to the common law. The exceptions to this, however, were, first, in respect to the conveyance of interests in land which could not be evidenced and accompanied by formal livery of seisin, because of their being of an incorporeal nature, which, therefore, lay only in grant and not in livery, and always required a deed as a means of transfer; and, second, the requirements of the act of enrolment 27 Hen. VIII. ch. 16, which rendered a deed indented and enrolled necessary in order to give effect to a conveyance by bargain and 4 sale. But this did not apply to other deeds which took their [*553] rise under the statute of *uses, nor to deeds of feoffment.5 The English statute of frauds has been followed, more or less exactly, by the statutes of the several United States, all of which require an instrument in writing in order to the conveyance of lands or any interest therein. And, with the exception of three or four States, a deed under the hand and seal of the grantor is necessary, if the interest to be thereby transferred is a freehold one." 2. In carrying out the plan of this work, it is proposed, first, to consider what constitutes a deed, and what are the requisites necessary to give effect to a deed as a means of conveyance of real 11 Spence, Eq. Jur. 8, 20, 22; 4 Kent, Com. 441, 442; Reeves, Hist. Eng. Law, 8. 2 Vol. I. ch. 2. See Reeves, Hist. Eng. Law, 329, 335, 448. 8 Roberts, Frauds, 270; Browne, Stat. Frauds, 3, 4; Wms. Real Prop. 126. 1 Wood, Conv. 7, 8; 2 Bl. Com. 317. 5 Wms. Real. Prop. 150. 6 Stewart v. Clark, 13 Met. 79. property, and, second, what are the several essential parts of such a deed. 3. It may be assumed, as a preliminary maxim, that title to lands can only be acquired or lost according to the laws of the State in which they are situate.1 4. A deed is defined to be a writing containing a contract sealed and delivered by the party thereto. This is Lord Coke's definition, and does not embrace the signing of the instrument which, at common law, was not necessary, as will appear more fully hereafter. In most of the States, however, a signing is required, and in all, it is uniformly practised. But a deed under all circumstances, implies and requires a seal, and without something answering to a seal according to the law of the State where the land lies, it cannot be a deed.2 5. In considering the character and qualities of a deed, reference is had to the materials of which it is composed, and the manner of making it, and the requisite forms to be observed to give it validity, and these are preliminary to the consideration of its parts, its construction, or its effect. This order is intended to be substantially adopted in the present chapter. Lord Coke considers ten things essential to a valid deed of *conveyance: first, writ- [*554] ing; second, parchment or paper; third, a person able to contract; fourth, a sufficient name; fifth, a person able to be con- · tracted with; sixth, a sufficient name; seventh, a thing to be contracted for; eighth, apt words required by law; ninth, sealing; tenth, delivery.3 6. It will not be necessary to consider each of these requisites in detail. It may be stated, generally, that writers upon the subject, and courts in their opinions, adopt the dogma, that in order to be a deed, the materials on which its contents are written must be parchment or paper, and the reason given places the rule upon the ground of policy, that writing upon such materials is less likely to 1 Clark v. Graham, 6 Wheat. 577; Doe v. Nelson, 3 McLean, 383. By statute in Illinois, a deed good in the State where made, will convey lands in Illinois, and the same is the law in Michigan. Root v. Brotherson, 4 McLean, 230; Butterfield v. Beall, 3 Ind. 203. 2 Co. Lit. 171 b; Wms. Real Prop. 123; Shep. Touch. 50; 1 Wood, Conv. 129; Van Santwood v. Sandford, 12 Johns. 198; Hammond v. Alexander, 1 Bibb, 333; Taylor v. Morton, 5 Dana, 365. See Hutchins v. Burns, 9 Gray, 367. 3 Co. Lit. 35 b; 1 Wood, Conv. 125; Shep. Touch. 54. |