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taken to explain the nature of the transaction, so as to make it understood by the grantor.

An idiot or lunatic is incapable of binding himself by deed. But mere imbecility of mind, not amounting to idiocy or lunacy in the grantor, is not sufficient to avoid the deed, though it should insure caution in those who are called upon to decide upon the validity of the acts of such persons. The definition of the term idiot and lunatic, seems to comprehend only those who show a total want of understanding, in the first, from nativity, and in the second, at the time of doing the act which is brought in question. (Odell v. Buck, 21 Wend. 142. Jackson v. King, 4 Cowen, 207, approved in Stewart's Ex. v. Lispenard, 26 Wend. 298, and Blanchard v. Nestle, 3 Denio, 37.) In the latter of which cases, the common law notion of idiocy and lunacy, is fully set forth by the learned judge.

A civil corporation may, in general, convey its lands like a natural person; but religious corporations are, under a disability in this respect, except by the permission of the supreme court, or some tribunal having the requisite authority. But this matter will be considered more at large in the following chapter.

Married women, at common law, could not alien their lands during the coverture. They were permitted to do so by joining with their husband in the conveyance, and acknowledging, on a private examination before a proper officer, that they executed the deed freely, without any fear of their husband. By some recent statutes, a married woman of lawful age can, in certain cases, alien her real estate in the same manner as if she was sole. This branch of the subject belongs to the next chapter, where it will be treated at large.

By the common law, all natural persons may be grantees in a deed, because it is supposed to be for their advantage. But if such grantees are infants, married women, or persons of insane memory, they may disagree to such deeds, and waive the estates thereby conveyed to them.

A grant to be valid, must be to a corporation, or to some certain person named who can take by force of the grant, and hold in his own right, or as trustee. A grant to the people of a county is void. Formerly, counties were not esteemed a corporate body; and it was well settled, that a community, not incorporated, could not purchase and take in succession. (Jackson v. Corry, 8 John. 388.)

So a grant to the inhabitants of a town, not incorporated, was held to be void. (Hornbeck v. Westbrook, 9 id. 73.) But by the revised statutes each county is made a corporate body, with capacity to purchase and hold lands within its own limits, and for the use of its inhabitants. (1 R. S. 364.) Strictly speaking, and in the absence of any legislative provision on the subject, the acts and proceedings by, to, and against a county, should be in the name of the board of supervisors of such county, as a board, and not of the individuals by name; but the statute has provided that every conveyance of land within the limits of the county, made, in any manner, for the use or benefit of its inhabitants, shall have the same effect, as if made to the board of supervisors. (Id. Hill v. The Board of Supervisors of Livingston Co. 2 Kern. 52. 23 Barb. 338.) The statute has also given to the several towns in the state a certain corporate capacity. They may purchase and hold lands within their own limits for the use of their inhabitants. (1 R. S. 337. Lorillard v. The Town of Monroe, 1 Kern. 394. Denton v. Jackson, 3 John. Ch. 320.) But neither a county or a town can hold lands out of their respective limits, unless specially authorized by statute; nor for purposes not connected with their business and duties as a county or a town. They cannot embark in the business of buying and selling lands for the purpose of profit. The intention of the law doubtless was to give them respectively a corporate capacity to take and hold lands for a court house, jail, poor house, town house, and the like. The general law for the incorporation of villages, (2 R. S. 701 et seq. 5th ed.) gives to such villages when incorporated a corporate capacity to hold lands within their limits. for various purposes, and in some cases they are specially authorized to take and hold lands without their corporate limits for a cemetery for the burying of the dead. The power of holding real estate is possessed to more or less extent by all our cities and villages heretofore incorporated, as will be seen by reference to their charters; but it is not deemed necessary to insert a reference to them in this treatise.

2. With regard to the consideration, it was not deemed essential at common law, to the validity of a deed, that it should express a consideration. (Cunningham v. Freeborn, 11 Wend. 248.) And so, under the revised statutes, a conveyance actually delivered and accepted of all the real estate of a party, is good and valid as

a grant, although there be no express consideration to support it. This is so, whether the grant be a beneficial one, or in trust for the payment of debts, and in the latter case it is unnecessary that the creditors should be parties to it. (Id.)

But although a deed be good between the parties, and effectual to vest the estate of the grantor in the grantee, without any consideration being expressed therein, yet such deed may be impeached by creditors of the grantor for fraud. A man in unembarrassed circumstances may, if he pleases, give his property to a friend or a stranger, and in the absence of fraud or imposition, the courts will not interfere with it. Even a voluntary deed is not void in law, as made to defraud creditors, if the grantor had, at the time, enough other property to pay all his debts. (Jackson v. Post, 15 Wend. 588.) Indeed, the distinction which had previously been supposed to exist between fraud in fact and fraud in law, in voluntary conveyances, seems to have been repudiated in subsequent cases. (Seward v. Van Wyck, 8 Cowen, 406. Jackson v. Peck, 4 Wend. 300. Same v. Timmerman, 7 id. 437.) In the case of a volutary conveyance, as much as in any other, the question is as to the actual fraud, and is to be passed upon by the jury. Where there is any valuable consideration, the deed is not voluntary, and the adequacy of it is only material upon the question of fraudulent intent. (Id.)

There are various reasons why it is advisable that a deed should express the consideration on which it is granted. Courts of equity never lend their aid to carry into execution voluntary conveyances. There must either be a good or a valuable consideration, or something equivalent thereto. (Minturn v. Seymour, 4 John. Ch. 497. Acker v. Phoenix, 4 Paige, 305. Willard's Eq. Jur. 263.) If the deed requires the aid of a court of equity to vary its terms, it will not be granted in favor of a volunteer.

A voluntary conveyance may become valid upon matter ex post facto, or it may acquire validity so far as concerns the claims of others. (Wood v. Jackson, 8 Wend. 9.)

Considerations are of two kinds, good and valuable. The first is merely a moral consideration; such as arises from an implied obligation, and which subsists between parent and child. The love and affection subsisting between near relatives, and the desire of preserving his name and family, are frequently held to be good considerations. The second, called a valuable consideration, is money

or other valuable thing. Marriage is a valuable consideration. (Whelan v. Whelan, 3 Cowen, 537. Verplank v. Sterry, 12 John. 536.)

3. The third essential circumstance to the validity of a deed is, that it must be written or printed on paper or parchment. If it be made on a piece of wood, or upon a piece of linen, or on the bark of a tree, or on a stone or the like, and the same be sealed or delivered, it is no deed. (Co. Litt. 229 a.) The reason assigned for this, by Coke, is that a writing upon paper or parchment is less subject to alteration or corruption than upon the other substances.

It is usual that the instrument is written or printed and subscribed with ink, as that is in general the most durable, and most difficult to be effaced. But with regard to the note or memorandum of the agreement which the statute of frauds requires to be in writing, and subscribed by the party to be charged, (2 R. S. 134, § 6,) it has been held in this state, both by the supreme court and the late court of errors, that a memorandum written and subscribed with a lead pencil, was as valid as if written with pen and ink. (Merritt v. Classon, 12 John. 102; affirmed on error, 14 id. 484, by name of Classon v. Bailey, and approved by the same court in the later case of Davis v. Shield, 26 Wend. 354.) It appears by the note of the revisers, that the opinion of Chancellor Kent in Classon v. Bailey, (supra,) was before the legislature, when the statutes were revised in 1830, and with a knowledge of what he had said on the subject, they left the language of the statute of frauds in that respect unaltered. The statute, the chancellor observed, requires a writing &c., but does not tell us with what instrument it may be written. He then proceeds thus: "To write is to express our ideas by letters visible to the eye. The mode or manner of impressing those letters is no part of the substance or definition of writing. A pencil is an instrument with which we write without ink. The ancients understood alphabetical writing as well as we do, but it is certain that the use of paper, pen and ink was for a long time unknown to them. In the days of Job they wrote upon lead, with an iron pen. The ancients used to write upon hard substances, as stones, metals, ivory, wood, &c. with a style or iron instrument. The next improvement was writing on waxed tables; until at last paper and parchment were adopted, when the use of the calamus or reed was introduced. The common law has gone so far to regulate

writings as to make it necessary that a deed should be written on paper or parchment, not on wood or stone. This was for the sake of durability and safety; and this is all the regulation that the law has prescribed. The instrument, or the material by which letters were to be impressed on paper or parchment, has never yet been defined. This has been left to be governed by public convenience and usage; and as far as questions have arisen on the subject, the courts have, with great latitude and liberality, left the parties to their own discretion." He then adverts to the well known fact, that it has long been held that printing is writing, and making a mark is a subscribing within the meaning of the law, and that the ecclesiastical courts had admitted to probate a codicil to a will written in pencil. And he fully concurred in opinion with the supreme court, which upheld the validity of the agreement written by a lead pencil. The court of errors unanimously agreed with him. (See Willard on Executors, 113.)

The question whether a deed written and subscribed with a lead pencil, is valid, does not seem to have arisen. It is the most prudent course to continue the use of pen and ink until the legislature or the higher courts sanction a different mode.

4. The next circumstance to be noted is, that the deed must contain proper words for expressing the contract, and that they should be legally and orderly set forth. Although the statute does not prescribe the different parts of a deed, and the omission of all but the granting part would not invalidate the instrument, it is nevertheless the more correct and lawyer-like mode of conveyancing, to adhere to forms which have been long established and sanctioned by general usage.

The orderly parts of a deed are, 1. The premises; the office of which is rightly to set down the names of the parties, grantor and grantee, together with their place of abode, or other matter of description, the recital if there be any, the consideration and the receipt thereof, the grant, the description of the thing granted, and the exception if there be any. 2. The habendum and tenendum, the office of which is to set forth the kind of estate which is granted, for what time and the tenure by which held. These are not essential parts of our deeds, if the quantity of interest conveyed has been already stated in the premises. They are merely inserted in pursuance of custom. 3. The redendum, which is that by which

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