Gambar halaman

ried women, infants, corporations, and bodies politic, may take as grantees.

35. There are, and from an early date have been, statutes in England, called those against mortmain, which prohibit corporations, without special authority, to hold lands. But with the exception of Pennsylvania, it is believed that similar statutes have not been adopted in this country. It is usual, however, to insert a clause in acts creating corporations, limiting the amount of estate which they may hold. But if a corporation exceeds this prescribed amount by an original purchase, nobody but the State can interfere with its holding the property thus acquired. And if its property, by its rise in value, comes to exceed the amount prescribed in its charter, its title will not thereby be impaired. And if a deed be made to several, as *tenants in common, a part only of whom are [*568] competent to take by the deed, it will be good as to their respective shares to such as are competent, though void as to the others.3 A conveyance to “S. L. and Company,” would vest the legal title in S. L. individually, but clothed with a trust for the benefit of the partnership of which he is a member. The subject of what may be granted, and by what words it shall be done, will be more properly noticed in another part of the chapter, and, so far as the formal parts of a deed are concerned, it only remains to speak of what is necessary to its proper execution. This, as stated by Lord Coke, consists of sealing and delivery. And this was all that was required by the common law, though it was always deemed desirable that the deed should be signed, and the signature accompanied by the attestation of witnesses, both of which are specially required by the statutes of several of the States.

11 Wood, Conv. 165, 169; Perkins, $ 51 ;. Co. Lit. 2 b, 3 b. See Sutton v. Cole, 3 Pick. 332; Concord Bank v. Bellis, 10 Cush. 278; vid. post, p. *583 as to effect of husband dissenting to wife accepting deed, and Doug. 452; Melvin v. Prop. &c., 16 Pick. 167.

2 2 Kent, Com. 282, 283; Bogardus v. Trinity Church, 4 Sandf. Ch. 633, where from £30 income per year, the property had grown to $300,000 per annum.

3 Shep. Touch. Prest. ed. 71. See Chamberlain v. Bussey, 5 Me. 164. • Moreau v. Safferans, 3 Snced, 595.



1. Mode of executing deeds among the Saxons, &c.
2. Signing, unnecessary in deeds at common law.
3. How far signing is necessary in this country.
4. Sealing, indispensable at common law.
5. Affixing a seal makes a deed.
6. Immaterial who affixes the seal.

7. Of sealing and executing deeds by corporations.
8, 9. What is a seal by the laws of different States.
10, 11. Of witnesses and attestation of deeds.
12, 13. Of the execution of deeds by attorney.

14. Public agents may use their own seals.
16. Of the requisite power by which an attorney acts.
16. Of certificate of payment of consideration.
17. Of the reading requisite to make a valid deed.
18. What a grantor is presumed to know of the deed.

19. Of the date of a deed.
20, 21. Of the delivery of a deed essential to its effect.

22. A second delivery of no effect.
23. Deeds take effect from delivery, irrespective of date.
24. Deeds must have been executed to have their delivery good.
25. What will be the delivery of a deed.

26. Of delivery of a deed by a corporation.
27, 28. Of delivering deeds through the agency of others.
29, 30. Delivery not effectual till known and assented to by grantee.

31. Delivery presumed from possession by grantee.
82. When grantee must be shown to have been in esse.

38. Effect of possession of an executed deed.
34, 35. Presumption of intent from an act of delivery.

36. Of successive acts of delivery.

37. Of dissent by husband to delivery made to wife. 38, 39. Of accepting delivery by assent to act of others.

40. What is an escrow.
41. Deed never an escrow if delivered to grantee.
42. Deed delivered to a third person, when not an escrow.
43. Form of delivery to make an escrow.
44. Escrow has no effect as a deed till condition performed.
45. Effect of second delivery in case of an escrow.


45 d. Effect of rescinding deeds.

46. What is equivalent to livery of seisin.
46 a. of the doctrine of relation in deeds.

47. Of deeds poll and indentures.
48. How far a party can be covenantor without signing deed.
49. Of the remedy against a party bound by deed poll.
50. Of assigning words in indentures to the several parties.
51. Of the enrolment and registration of deeds.
52. To what time the date of record refers.
53. To whom the record of a deed is notice.
54. In what cases a recorded deed is notice.
55. Of the time within which a deed must be recorded.

When a certificate of acknowledgment is necessary.
57. In what States record of a deed is evidence of its validity.

58. How far knowledge of an unrecorded deed binds third persons. 59, 60, 61. Knowledge of a deed equivalent to its being recorded.

62. Certificate of acknowledgment, &c., conclusive.
63. Of what facts a purchaser's deed is implied notice.
64. . Of deeds by persons out of seisin of land.
65. Deeds void or voidable.
66. Fraudulent conveyances.

1. Among the Saxons, seals were not in general use ; and deeds were simply subscribed with a sign of the cross appended and attested by witnesses. But when the Normans came in, signing was dispensed with, and sealing substituted ; though sealing did not come into general use in England, until after the time of Edward III.1

2. And at common law, signing, as a part.of the execution of a deed, is unnecessary, though always advisable.

3. When the laws and usages of the different States, in this respect, are examined, they will be found to have varied, from time to time. Thus the only requisites to. a good conveyance of lands in Kentucky, were formerly, that it should be in writing, sealed and delivered, though in another case, signing was *recog- [*569] nized as a part of what constitutes a conveyance. But as the statute of frauds in that State requires certain instruments like leases to be signed, and the statutes of 1843 and of 1860, dispense with seals in the conveyance of land, it is presumed signing would now be regarded as indispensable.' So far as this was once doubtful in New Hampshire, it is now made certain by a statute requiring deeds to be signed. Signing is essential in Pennsylvania. And the same is true in Ohio. By reference to the statutes of the several States, as found in Thornton's Conveyancing, modified in some cases by more recent legislation, it appears that signing is requisite in order to give validity to deeds, in all the States with the exception of Florida, Mississippi, North Carolina, Tennessee, and Texas, where the statutes seem to recognize a common-law execution of a deed as sufficient to convey lands.

ii Wood, Conv. 191, 192; 2 Bl. Com. 309.

2 1 Wood, Conv. 238; Termes de la Ley, “Fait”; Com. Dig. Fait, B. 1; Wms. Real Prop. 126; Shep. Touch. Prest. ed. 56, and note, 60; contra, 2 BI, Com. 306. 8 Sicard v. Davis, 6 Pet. 124; Plummer v. Russell, 2 Bibb, 174. Chiles v. Conley, 2 Dana, 21.

4. The sealing of deeds was indispensably necessary, at common law, in order to their validity, at least after the time of Edward III.,6 and the same is believed to be true in every State, with the exception of Kentucky, Iowa, Alabama, and Louisiana.7* By deeds, as the word is here used, are intended such as purport to convey a freehold

interest. Therefore, calling an instrument a deed, or deliv[*570] ering it as such, or believing *or intending it to be such,

will not make it a deed, without a seal actually affixed thereto.9

NOTE. — No seal was requisite under the civil law. Any instrument which contained the names of the parties, a designation or description of the property, the date of the transfer, and the price paid, was sufficient to pass the title. Per Field, J., Stanly v. Green, 12 Cal. 166. In Connecticut, it is provided that all deeds, conveyances, and other instruments intending and purporting to be specialties, but which have been executed without seal, shall have the same legal effect as though sealed. Stats. 1855, ch. 47, and Stats. 1862, ch. 48, § 2.

1 Thornt. Conů. 223 ; Ky. Rev. Stat. 1860, Stant. ed. ch. 24, § 1, p. 278.
2 Elliot v. Sleeper, by Woodbury, J., 2 N. H. 529; Thornt. Conv. 364.
3 M’Dill v. M’Dill, i Dall. 64; Thornt. Cony. 438.
4 Clark v. Graham, 6 Wheat. 579.

5 See Mass. Gen. Stat. ch. 89, § 1, 2; Hutchins v. Byrnes, 9 Gray, 367; 1 Rev. Stat. (Ind.), 257 ; Brown's Stat. of Frauds, appendix ; Isham v. Bennington Iron Co. 19 Vt. 252.

i Wood, Conv. 192. 7 Thornt. Conv. 205, 224, 242; Ala. Code, 1852, § 2198 ; 1 Ky. Rev. Stat. 1860, Stant. ed. ch. 24, § 1; Shelton v. Armor, 13 Ala. 647; Pierson v. Armstrong, I Clarke (Iowa), 293.

8 Cline v. Black, 4 M'Cord, 431; Blackw. Tax Tit. 432; Jackson v. Wood, 12 Johns. 73; Jackson v. Wendell, id. 355; McCabe v. Hunter, 7 Mo. 355; Underwood v. Campbell, 14 N. H. 393 ; 2 Bl. Com. 297 ; id. 312; Jackson v. Wood, 12 Johns. 73.

9 Warren v. Lynch, 5 Johns. 239; Taylor v. Glaser, 2 Serg. & R. 502 ; Wads


5. On the other hand, if there be a seal affixed, it is a deed, though it want the usual recital that the party has set his seal thereto; or, though the recital be that he has thereunto set his hand without mentioning his seal.

6. It is immaterial who affixes the seal, whether a party to the deed, or the scrivener, or a stranger, provided it be done before the deed is delivered. By delivering it as his deed, the maker adopts the seal. And it is competent for any number of grantors to adopt and make use of one and the same seal, and thereby adopt it as the seal of each. If a deed be prepared for several to execute, and only a part of them seal it, it will be good as their deed, but will not bind those who do not execute it.4

7. A corporation ordinarily binds itself by its seal, and many if not all corporations are authorized to have and use a common seal. But a deed of a corporation may be good, though sealed with any seal other than their own common seal, if adopted and used by such corporation, and though it be not alleged, in the executing clause of the deed, that it is their common seal. Signing as well as sealing is essential to the validity of a deed by a corporation, though held otherwise by some of the cases in New York, as well as in England. And, as held by the U. S. Court, not only must such deed be sealed with the corporate seal, but the seal must be placed there by some one duly authorized to affix it. And it is competent to impeach a

worth v. Wendell, 5 Johns. Ch. 224; Davis v. Brandon, 1 How. (Miss.), 154 ; Long v. Long, 1 Mon. 43; Deming v. Bullitt, 1 Blackf. 241 ; Davis v. Judd, 6 Wis. 85.

Ti Wood, Conv. 192, 238 ; Shep. Touch. 55; Com. Dig. Fait, A. 2, B. 3; Taylor v. Glaser, 2 Serg. & R. 502 ; Peters v. Field, Hetl. 75; Bradford v. Randall, 5 Pick. 496; Mill Dam Foundry v. Hovey, 21 Pick. 417, 428.

? 1 Wood, Conv. 192; Co. Lit. 6 a; Elwell v. Shaw, 16 Mass. 42, 47; Shep. Touch, Prest. ed. 54, 57.

3 1 Wood, Conv. 192; Perkins, ♡ 134; Com. Dig. Fait, A. 2 ; Shep. Touch. Prest. ed. 57; Warren v. Lynch, 5 Johns. 239; Mackay v. Bloodgood, 9 Johns. 285 ; Bradford v. Randall, 5 Pick. 496; Tasker v. Bartlett, 5 Cush. 359, 364; Lambden v. Sharp, 9 Humphr. 224.

Shep. Touch. 71 ; Scott v. Whipple, 5 Me. 336. 51 Wood, Conv. 192; Com. Dig. Fait, A. 2; Shep. Touch. 57; Mill Dam Foundry v. Hovey, 21 Pick. 417, 428; Ang.& Am. Corp. $ 226. See Stebbins v. Merritt, 10 Cush. 27, 34, by which it would seem, that if the corporation have adopted a common seal of a particular character or device, it should be used to make a valid deed. See also, Koehler v. Black River &c. Co. 2 Black, (U. S.), 715.

6 Isham v. Bennington Iron Co. 19 Vt. 252.


« SebelumnyaLanjutkan »