some of them. Among the States where this principle of the common law has been held to prevail, are New York, North Carolina, Vermont, Indiana, Kentucky, New Hampshire, Maine, Massachusetts, Michigan, Georgia, and Mississippi. But the principle applies only as to the one holding adversely at the time the [*597] deed is made, and those claiming under him. As to all the rest of the world, the deed would be valid and effectual.2 And this further effect would follow from such conveyance, that though no title is thereby created in the grantee, as against the tenant holding adverse possession, and the original title remains in the grantor, still he holds it as trustee for the use of his grantee, so far that his grantee may sue for possession of the land in the grantor's name, and the possession, when thus gained, enures to the benefit of the grantee.3 There are exceptions to the rule as to the effect of adverse possession upon the validity of a deed, among which is the case of the State granting lands. As the State cannot be disseised, no adverse possession can affect its right to convey its lands. Nor does such possession affect the validity of a sale under a judicial decree, or by a public officer acting in that capacity. The possession of a tenant holding over, is not so adverse to his lessor as to render his deed of the estate invalid. Among the States where a conveyance of lands,

1 Co. Lit. 214 a; Lalor, Real Prop. 253; Den v. Shearer, 1 Murph. 114; Hoyle v. Logan, 4 Dev. 495; Thurman v. Cameron, 24 Wend. 87; Ewing v. Savary, 4 Bibb, 424; Hathorne v. Haines, 1 Me. 238; Dame v. Wingate, 12 N. H. 291; Gresham v. Webb, 29 Ga. 320; Helms v. May, ib. 121; Betsey v. Torrance, 34 Miss. 132; Parker v. Proprietors, &c. 3 Met. 98; Galbreath v. Doe, 8 Blackf. 366; Wade v. Lindsey, 6 Met. 407, 414; Selleck v. Starr, Vt. 198; Stockton v. Williams, 1 Doug. (Mich.), 546. As to the character of adverse possession which renders a deed void, Foxcroft v. Barnes, 29 Me. 128.

2 Livingston v. Peru Iron Co. 9 Wend. 511, 523; Livingston v. Prosens, 2 Hill, 526; Edwards v. Roys, 18 Vt. 473; Wade v. Lindsey, 6 Met. 407, 414; Stockton v. Williams, 1 Doug. (Mich.), 546; Betsey v. Torrance, 34 Miss. 138; University of Vt. v. Joslyn, 21 Vt. 61.

Wade v. Lindsey, 6 Met. 413, 414; Betsey v. Torrance, 34 Miss. 138, 139; Livingston v. Peru Iron Co. 9 Wend. 523; Stockton v. Williams, 1 Doug. (Mich.), 567; Jackson v. Leggett, 7 Wend. 380; Wilson v. Nance, 11 Humph. 191; Edwards v. Parkhurst, 21 Vt. 472.

4 People v. Mayor, &c., 28 Barb. 240; Ward v. Bartholomew, 6 Pick. 409.

5 Hanna v. Renfro, 32 Miss. 130; Frizzle v. Veach, 1 Dana, 211, 216; Jarrett v. Tomlinson, 3 W. & S. 114.

6 Taylor v. Kelly, 3 Jones, Eq. 240.

though in the adverse possession of another, will pass the grantor's title as a valid deed, are Pennsylvania and Ohio.1

65. In Ohio, a deed is valid though made on Sunday.2 A deed given by the way of composition of a felony, cannot be avoided for that reason by the grantor. But a deed obtained by duress of imprisonment, may be avoided by the grantor or his heirs, by a reentry upon the premises.3

66. There is a class of conveyances of lands which, though formal in all respects, and effectual between the parties, are, by the policy of the law or by statute, held to be void to a certain extent. This embraces what are known as fraudulent conveyances, where the intent of the parties to the same is to defraud the creditors or the subsequent purchasers of the grantor, by means of such conveyance. The questions arising under these are usually referred to the statutes of 13 Eliz. ch. 5, and 27 Eliz. ch. 4, though these are said to be in affirmance of the common law, and, in one form or the other, prevail all over the United States. The first of these statutes relates to creditors, and provides, in general terms, that all conveyances of lands intended to defraud or delay creditors, shall, as to such creditors, be void. As the question in these cases depends upon the bona fides with which the transaction takes place, it would be transcending the purposes of this work to attempt to present, in detail, the cases wherein the questions considered related to what should be deemed evidence of good or bad faith. A few general principles may, however, be properly stated. In the first place, such conveyance, though fraudulent, is, if otherwise sufficient, and for a valuable consideration, valid as to all innocent purchasers not privy to the fraudulent intent. Thus, if a fraudulent grantee conveys the estate to a bona fide purchaser, for a valuable consideration, the conveyance is good, and the first grant may be purged of the fraud. So, though the grantor makes the conveyance with a fraudulent intent, it will

1 Cresson v. Miller, 2 Watts, 272; Hall v. Ashby, 9 Ohio, 96; Bennet v. Williams, 5 Ohio, 461.

2 Swisher v. Williams, Wright (Ohio), 754. See Tracy v. Jenks, 15 Pick. 465.

3 Worcester v. Eaton, 11 Mass. 368; s. c. 13 Mass. 371.

* Burton, R. P. § 221-228; Story, Eq., §§ 352–356; Sands v. Codwise, 4 Johns.

536, 559; 1 Am. Lead. Cas. 68; Penniman v. Cole, 8 Met. 499.

Oriental Bank v. Haskins, 3 Met. 340; Jackson v. Henry, 10 Johns. 185; Somes v. Brewer, 2 Pick. 184, 198. See Clapp v. Tirrell, 20 Pick. 247.

The editors of the American Lead

not affect the validity of the transaction unless the grantee was cognizant of his intent, or participated in it.1 And though the design be originally fraudulent, as to creditors, and known to the grantee, so as to be void as to creditors so long as the transactions had that character, yet it may become valid by being purged of the fraud by matter ex post facto, if the fraudulent intent is abandoned.2 But if vendor and vendee participate in the purpose of the vendor, to defraud or delay creditors, by conveying his land, it will be void as to such creditors, though a full and valuable consideration may have been paid for the same. In respect to conveyances that are voluntary, that is, made without a valuable consideration, the cases are very numerous, but not uniform. ing Cases have collected these, accompanied by discriminating comments upon the classes into which they divide themselves. That such conveyances are not void as against subsequent creditors, where no intent exists to defraud such creditors, seems to be admitted law. And while, as to previous creditors, different courts have applied different degrees of stringency in the rule, it may be laid down as a general proposition, that, if such conveyance be made to any person other than a child, it will be void as to existing creditors, and when made to a child, or as a settlement upon a wife, whether it shall be void or not, depends upon the condition of the grantor as to his ability to pay his debts out of his remaining property at the time of its being made. And it may be added, that such voluntary conveyances are uniformly recognized as valid between the parties and their representatives. Where the conveyance is made with an actual fraudulent intent, it may be avoided by subsequent as well as previous creditors. But that a voluntary conveyance, made in good faith, will

1 Bridge v. Eggleston, 14 Mass. 250; Harrison v. Trustees, &c., 12 Mass. 462.

2 Oriental Bank v. Haskins, 3 Met. 340; Verplank v. Sterry, 12 Johns. 552; Sterry v. Arden, 1 Johns. Ch. 261.

8 Story, Eq. § 369; Wright v. Brandis, 1 Ind. 336; Ruffing v. Tilton, 12 Ind. 260. Sexton v. Wheaton, 8 Wheat. 229; Salmon v. Bennett, 1 Conn. 525; 1 Am. Lead. Cases, 49-85; Doe v. Hurd, 7 Blackf. 510; Bullitt v. Taylor, 34 Miss. 708, 737, and cases cited in the argument; Story, Eq. §§ 362, 364, 371; Reade v. Livingston, 3 Johns. Ch. 500, 501; Hinde's Lessee v. Longworth, 11 Wheat. 199. See Washband v. Washband, 27 Conn. 424, for the distinction between an inadequate and no consideration, in its effect where grantor owes existing debts; in the former the deed will be good, unless made with a fraudulent intent.

5 Parkman v. Welch, 19 Pick. 231. But see Bullitt v. Taylor, 34 Miss. 740, 741.

be good against a subsequent purchaser with notice, seems to be the better rule of law, as now prevailing in the United States, though held otherwise in England. And it would not be good against a subsequent purchaser without notice, if for a valuable consideration.1 Another class of conveyances which were good at common law, have been declared fraudulent, by statute, under the doctrine of modern bankrupt and insolvent laws, and that is, conveyances intended to give undue preferences to creditors, and to prevent an equal distribution of a bankrupt's assets among his creditors.2 And it may be added, that, though the deed be voluntary and fraudulent in its intent, it is, nevertheless, valid and effectual against the grantor and his heirs.3 It may be added that, in Bunn v. Winthrop, a voluntary deed settling lands, in which the grantor had a chattel interest, upon a natural daughter, was sustained in a court of equity, although, after executing it, but without delivery, the grantor sealed it up with his will, and retained the custody of it till his death. And in respect to deeds obtained by duress or fraud at common law, if the party so obtaining a deed, which is duly executed in matter of form, convey the estate to a bona fide purchaser, ignorant of the duress or fraud, for a valuable consideration, the latter will hold the estate purged of such fraud or duress.5

SECTION III.

WHAT PROPERTY MUST BE CONVEYED BY Deed.

It only remains, while considering the constituent elements of a deed as a means of creating a title by private grant, to inquire what is embraced under "a thing to be contracted for," one of the requi

1 Story, Eq. § 427; Cathcart v. Robinson, 5 Peters, 264, 280; Beal v. Warren, 2 Gray, 447; Doe v. Rusham, 17 A. & E. N. s. 724; Jackson v. Town, 4 Cow. 603; Sterry v. Arden, 1 Johns. Ch. 261. See Upton v. Basset, Cro. Eliz. 445; Buckle v. Mitchell, 18 Ves. 100.

2 Penniman v. Cole, 8 Met. 500.

3 Jackson v. Garnsey, 16 Johns. 189; Upton v. Basset, Cro. Eliz. 445.

Bunn v. Winthrop, 1 Johns. Ch. 329; Souverbye v. Arden, 1 Johns. Ch. 255.

5 Somes v. Brewer, 2 Pick. 184, 203; Worcester v. Eaton, 11 Mass. 379; Deputy v. Stapleford, 19 Cal. 302.

sites, as given by Lord Coke, in the passage already cited.1 In other words, in the conveyance of what property is a deed necessary, and to what property does it apply?

It will be borne in mind, that the former distinction, as to the necessity of a deed, Between what lies in livery and what lies in grant, has, at last, been practically abolished in England, by the *statute of 8 and 9 Vict. ch. 106, § 2, and was never in [*598] force in this country. Since the statute of frauds, 29 Charles II. ch. 3, A. D. 1676, a deed has been required, in order to convey a freehold interest in, to, or out of any messuages, manors, lands, tenements, or hereditaments." 2

The subject of what property lies in grant, and requires a deed to create or transfer a title to it, was minutely considered by the early writers, to some of whom reference is here made, rather by way of example and illustration, than with a view of giving a complete summary of what may, and must be so conveyed. It is laid down as a proposition, having few, and only special exceptions, that such things as lie in grant, and not in livery, generally, cannot be granted or given without deed. And therefore, rents and services, and such like things, which are in gross, and not incident to some other thing, may not be granted without deed.3

Whatever it requires a deed to create at first, requires a deed to transfer from one grantee to another, and the same is true in respect to surrenders. As in the case of a conveyance, or surrender of an existing rent charge, or rent seck. Remainders and reversions in fee, or for life, are grantable only by deed, and can be surrendered only by deed. A grant by deed, of an acre of land, covered by water, would be good. So a grant of a way, either de novo, or of one already existing, must be by deed. But a mere license to do something upon another's land, like hunting or walking upon it, is not the subject of a grant by one to another, unless it be a license to take the property in another's land, which cannot pass without a

1 Co. Lit. 35 b; ante, pp. *553, *554.

8 Shep. Touch. 230; 1 Wood, Conv. 176, 177.

2 Browne, Stat. Frauds, § 6.

* 1 Wood, Conv. 175, 185; Bennet v. Westbeck, Poph. 137; Shep. Touch. 229.

5 1 Wood. Conv. 177, 178; Perkins, § 61; Co. Lit. 338, a; 2 Rolle, Abr. 62, Grant, 6; Shep. Touch. 230.

61 Wood, Conv. 176; Co. Lit. 4.

7 1 Wood, Conv. 177; Beaudely v. Brook, Cro. Jac. 189.