power. Nor can a feme covert join with the attorney of her husband in executing a deed of her land, so as effectually to pass her title to the same.2

22. Although a married woman cannot convey directly to her husband, there does not seem to be any difficulty in her doing so by means of a conveyance to his use, if her husband join with her in the deed. Thus, where a husband and wife conveyed the wife's land to J. S. to the use of the husband and wife, their heirs and assigns, and the heirs and assigns of the longest liver of them, it was held to be a good feoffment to their use as joint-tenants, and that the statute would execute the seisin in them accordingly.3 The wife may also do this by joining with her husband in a deed to a third person, and having a deed from such grantee made to the husband.*

23. And, though perhaps not necessarily a part of the subject under consideration, it may be stated, as a general proposition, that although competent to join with her husband in executing a conveyance of her land, her covenants of warranty and of title, though in the same deed, are not binding upon her. But her conveyance operates, nevertheless,, to estop her as to the title thereby granted." 24. Aliens, too, are embraced in the Touchstone, in the category

of persons who cannot convey lands. But it seems to be [*565] *well-settled, that even at common law, an alien may purchase and hold land against all the world but the king, and may, with the same limitation, convey the same." And this disability is wholly removed in many of the States by statute.8

25. If one makes a deed under duress of imprisonment, or fear

1 Judson v. Sierra, 22 Texas, 365, 371; 2 Kent, Com. 645.

2 Toulmin v. Heidelberg, 32 Miss. 268.

8 Thatcher v. Omans, 3 Pick. 521.

* Meriam v. Harsen, 2 Barb. Ch. 267; Jackson v. Stevens, 16 Johns. 110; Todd v. Wickliffe, 18 B. Mon. 866.

5 Jackson v. Vanderheyden, 17 Johns. 167; Grout v. Townsend, 2 Hill, 554. By statute, she may bind herself by covenants in a deed made jointly with her husband. New Jersey, Pentz v. Simonson, 13 N. J. 234. Only bound by way of estoppel in Tennessee. Fletcher v. Coleman, 2 Head, 384.

But not

Doane v. Willcutt, 5 Gray, 328, 332; Colcord v. Swan, 7 Mass. 291. as to any title subsequently acquired by her. Schaffner v. Grutzmacher, 6 Iowa, 137. 7 2 Bl. Com. 293; Shep. Touch. 56; Burk v, Brown, 2 Atk. 399; 1 Wood, Conv. 138.

8 Ante, Vol. I. pp. *48, *49.

from threats of personal injury, it is a voidable, but not a void instrument.1

25 a. There is a qualified disability to convey lands, on the part of joint-tenants and tenants in common, which it is proper to notice in this connection. As each owner, in such a case, is seised of an undivided share of every part, and has, moreover, as an incident to such an ownership, a right to have his own share set out from every other share, by a process of partition, neither owner can convey his interest in any particular part of the common estate, if objected to by his co-tenant, for if he may do so as to one, he may do so to an indefinite number, and thereby compel his co-tenant to become tenant in common of these several parcels, with these several grantees, and to have a separate process of partition with each of these owners, thereby greatly reducing the value of his estate. Such a conveyance of the personal interest of a tenant, however, would be good as to all persons except his co-tenants, and, if not objected to by them, will be valid and effectual to all intents. In some of the States, a different rule prevails, as may be seen by reference to a former part of the work, where the whole subject is treated of. And in one other respect, such joint-tenant or tenant in common cannot, by his separate deed, affect the joint property belonging to him and his cotenant, and that is by creating, thereby, a servitude upon the common property, in favor of a stranger. A grant to that effect would be void so far as the rights of his co-tenant were concerned. Nor can one of several trustees, in other than charity or public trusts, convey a separate or aliquot part of the estate held in trust. Such deed would be void. In respect to the right of one of several partners to convey partnership lands by a deed in the name of the company, but executed by himself alone, the common law seems to be clear, that it can only affect his own share and interest in such land,

1 2 Bl. Com. 291, 292; Worcester v. Eaton, 13 Mass. 371; Deputy v. Stapleford, 19 Cal. 302; Fisk v. Stubbs, 30 Ala. 335, deed of wife set aside, which she executed under threat of husband.

2 Ante, Vol. I. p. *432; Great Falls Co. v. Worster, 15 N. H. 449; Whitton v. Whitton, 38 N. H. 127; Smith v. Benson, 9 Vt. 138; McKey v. Welch, 22 Texas, 390; Porter v. Hill, 9 Mass. 34; Blossom v. Brightman, 21 Pick. 284; Phillips v. Tudor, 10 Gray, 78.

Collins v. Prentice, 15 Conn. 423; Marshall v. Trumbull, 28 Conn. 183; Washb. Easements, 30.

Chapin v. First Universalist Soc. &c., 8 Gray, 583.

and will not pass the interest of his partners. Nor will any ratification, subsequently made by them, give effect to the deed, unless it be by an instrument of as high a nature as the deed itself.1 But the court of Iowa were inclined to regard a parol ratification in such a case, as giving effect to the deed as to those who thus ratify it. It is hardly necessary to add, that corporations authorized to hold real estate, are competent to convey the same. But, in so doing, they must conform to the mode pointed out by their charter and by-laws. It must be the act and deed of the corporation as an entity. A deed signed by every individual member of a corporation would not convey the corporate right or title to land.3

26. The next requisite of a good deed named is, that it should contain the name of the grantor, and, as it is equally important that it should contain the name of the grantee, these will be considered together.

The object of names being merely to distinguish one person from another, it seems to be sufficient if this is effected, though the true name of the party be not used, or even no name at all. The general principle of law is, id certum est quod certum reddi potest, and a man may be described by his office or his relationship to a known. person. If the intended grantee be not named, he should be ascerR tained by description, so as to be distinguished from all others, and any uncertainty, in this respect, will render the grant void. Thus a grant to the inhabitants of a neighborhood which is not defined with certainty and ascertained limits, would be void. But if made to the inhabitants of a certain defined district, who are not incorporated, and their successors, the same may create in the then actual residents there, a life-estate in the thing granted, but nothing passes to their successors who may thereafter reside there." And where the Chris

1 Story, Part. §§ 119, 121; Gow, Part. 75, 76.

2 Haynes v. Seachrest, 13 Iowa, 455.

8 Wheelock v. Moulton, 15 Vt. 519; Pratt v. Bacon, 10 Pick. 123; Ang. & Ames, Corp. § 221.

* Broom, Max. 482; 1 Wood, Conv. 160, 164, 171; Co. Lit. 3 a; Perkins, §§ 36, 54, 55; Dr. Ayray's case, 11 Rep. 20, 21; Counden v. Clerke, Hob. 32 a; Sir Moyle Finch's case, 6 Rep. 65; Hoffman v. Porter, 2 Brock. 156, where a deed to P. H. & Son, they being partners, was held good to both; Morse v. Carpenter, 19 Vt. 613; contra, Arthur v. Weston, 22 Mo. 378; Shaw v. Loud, 12 Mass. 447; one "to heirs of AB" was held good, he being dead; Boone v. Moore, 14 Mo. 420.

5 Thomas v. Marshfield, 10 Pick. 367, 368.

.

tian name of the grantee was left blank in a deed, it was held competent for him to show who was intended by proof aliunde, he being in possession of the deed.1 And this applies also to corporations.2 Thus, a grant to a corporation which has never been created or organized, would be void for want of a grantee. It might be different if the defect consisted simply in organizing the corporation. It is sufficient if the person be described by the character ascribed to him by general repute, though this be not accurate in point of fact. As a grant to the wife of B, where the person intended to be designated lives with him and is generally reputed his wife, though never lawfully married to him. So, the name by which a man is habitually called is sufficient, though different from that of his baptism. So, calling the party the senior, when the junior of the same name, or vice versa, is intended.5 But a deed to a fictitious person would be simply *void. A grant by or to a person by a [*566] surname only, without something in the deed to show who is intended, would be void for uncertainty.7

27. And if a man execute a deed, calling himself therein a certain name, he will not be admitted to take advantage of the fact that it is not his true name.8

28. The law knows but one Christian name, and the omission of a middle name or its initial, does not affect the execution of a deed. So it is immaterial that there is a mistake in the Christian name, if the deed explains who is intended. A deed to Robert Bishop of E. will be good, though his real name is Roland.10

29. But the deed itself must not create the uncertainty as to who is the grantee intended, as if a grant be made to A B or C D, it would be void as to both.11

1 Fletcher v. Mansur, 5 Ind. 269.

2 Dr. Ayray's case, 11 Rep. 21.

3 Harriman v. Southam, 16 Ind. 190; Russell v. Topping, 5 McLean, 202; Jones v. Cincinnati Type Foundry, 14 Ind. 89.

Counden v. Clerke, Hob. 32 a; Sir Moyle Finch's case, 6 Rep. 65; 1 Wood, Conv. 160, 161.

5 1 Wood, Conv. 161; Perkins, § 37.

6 Muskingum Turnpike v. Ward, 13 Ohio, 120.

7 1 Wood, Conv. 162; Shep. Touch. 53; Fanshawe's case, F. Moore, 229.

8 Com. Dig, Fait, B. 1.

9 Games v. Stiles, 14 Pet. 322; Franklin v. Talmadge, 5 Johns. 84; Dunn v. Games, 1 McLean, 321.

10 1 Wood, Conv. 172; Perkins, § 36.

VOL. II.

11 1 Wood, Conv. 171.

50

30. So no person can take, under a deed where the grant purports to be of a present estate, unless he is named in the deed as a party to it, though a remainder may be limited to one who is not a party to the deed or even a person in esse.1 And a deed to a person not then living, and his heirs, would be void, since the word "heirs" being a word of limitation and not of purchase, there is no person to take under it.2

31. It was once thought that the grantor should be named as such in the deed. But this does not seem to be necessary if the grantor signs it. Thus, where a deed purported to be that of a married woman, her name only appearing as grantor, but it was signed by her and her husband who acknowledged it, it was held to be a good grant of the husband as well as the wife.3

32. There must be a person in esse to give as well as to receive a conveyance, in order to make a deed of an immediate [*567] *estate by or to such person, good. And if there is any reasonable doubt of such person being in esse at the time of the delivery of the deed, it must be affirmatively shown that he was so in order to give the deed validity.5

33. This principle does not apply to remainders, provided there is some ascertained person in esse to take the immediate particular estate which is to sustain the remainder till the person who is to take, shall come in esse. But if the grant, in præsenti, be to a person not in esse, or not ascertained, and a remainder be limited to another not in esse, both will be void. So a grant in præsenti to the oldest son of J. S., who has no son when the deed is delivered, derives no validity from the subsequent birth of a son to J. S. So a deed to the heirs of J. S., who is alive, would be void.8

34. The capacity to take as grantee is much less restricted than that required to make a grant. Persons non compotes mentis, mar

1 Hornbeck v. Westbrook, 9 Johns. 73.

2 Hunter v. Watson, 12°Cal. 363.

Elliot v. Sleeper, 2 N. H. 525; Perkins, § 36; Co. Lit. 6 a; Lord Say and Seal's case, 10 Mod. 46. But see Catlin v. Ware, 9 Mass. 218.

1 Wood, Conv. 161, 170; Miller v. Chittenden, 2 Iowa, 368. See also, the same case, as to how far grants to charitable uses from executors, to this rule and numerous cases cited, pp. *368, *376.

5 Hulick v. Scovil, 4 Ill. 191.

7 1 Wood, Conv. 170.

61 Wood, Conv. 170, 172; Perkins, § 53.

8 Hall v. Leonard, 1 Pick. 27.