much of the real estate of said deceased as will raise the last-mentioned sum, for the payment of said debts and charges of administration.

Dated the

day of

A.D. 186

(Signature.)

The undersigned, being all persons interested, hereby assent to the sale, as prayed for in the foregoing petition.

(Here should follow the signatures of the widow and all the heirs.)

[If the petitioner wishes the court for special reasons to direct what specific part of the real estate shall be sold, he must set forth the value, description, and condition of the estate, or of such part as he proposes to sell. Or he may say that a partial sale would miure the estate, and ask a license to sell the whole.]

(17ƒ.)

BOND OF ADMINISTRATOR LICENSED TO SELL REAL ESTATE.

KNOW ALL MEN BY THESE PRESENTS, That we (name of person licensed), as principal, and (names of his sureties), as sureties, and all within the State of are holden and stand firmly bound and obliged unto Esquire, judge of the Probate Court in and for the county of in the full and just sum of

dollars, to be paid to said

judge, and his successors in said office; to the true payment whereof we bind ourselves, and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the in the year of our Lord

day of

one thousand eight hundred and sixty

THE CONDITION OF THIS OBLIGATION IS SUCH, That if the abovebounden (name of the person licensed), administrator of the estate of (name of deceased), late of (residence of deceased), deceased, who has been licensed by said court to sell real estate of said deceased, more than is necessary for the payments of debts. and charges of administration, shall to law all proceeds of the sale remainand charges: then this obligation to

account for and dispose of according ing after payment of debts,

be void; otherwise to remain in full force and virtue.

I (name of administrator), do solemnly swear, that in disposing of the real estate of (name of the deceased), deceased, which I have been licensed by the Probate Court to sell, I will use my best judgment in fixing on the time and place of sale, and will exert my utmost endeavors to dispose

of the same, in such manner as will be most for the advantage of all persons interested therein. So help me God.

The first (or second or other, as the case may be) account of (name of executor), executor of the last will and testament of (name of the testator), late of (residence of the testator), in the county of

deceased.

Said accountant charges himself with the several amounts re-
ceived, as stated in Schedule A, herewith exhibited
And asks to be allowed for sundry payments and charges, as
stated in Schedule B, herewith exhibited

The undersigned, being all the parties interested, having examined the foregoing account, request that the same may be allowed without further notice.

(Signatures of the widow and all the heirs and legatees.)

(Then follow the schedules.)

CHAPTER V.

DEEDS OF LAND.

SECTION I.

WHAT IS ESSENTIAL TO DEEDS CONVEYING LAND.

By the statutes and usage of this country, generally, no lands can be transferred excepting by a deed, which is signed, sealed, acknowledged, and delivered; and it should always be recorded.

By the old law, no instrument was considered made until it was sealed; then it was thought to be done, and the word deed,

which literally means only something done, was given to every written instrument to which a seal was affixed; and that is the legal meaning now. But the common meaning of the word is an instrument for the sale of lands; and it is of this that we would now treat.

What the deed should be, that is, in what words it should be expressed, we can best show by the forms appended to this chapter, and do not propose to say more about it than this. It is not safe to depart from forms and established phrases, which have passed before the courts so often that their exact meaning is certainly known. There are things which seem to be and perhaps are vain repetitions; and for the usual words it may be thought that others of the same or better meaning may be substituted. Such changes may be made, perhaps, without detriment; but perhaps, also, with ruinous results: and it is not wise to run the risk.

It should be signed; and this means, properly, that the seller or grantor should write his name in the usual way, in the proper place, and with ink. If the grantor cannot write his name, he may merely make his mark. It has been said that writing with a leadpencil is enough, but it would not be safe to trust to it. The name of the grantee should be distinctly written in the proper place, in ink. Sometimes, in our large cities, an agent buys land for a principal who does not wish to be known, and the agent's name is inserted as grantee, in pencil, and the deed is so executed and acknowledged and delivered; and some time afterwards the agent rubs his name out, and writes the name of his principal, the actual buyer, instead. But this is a very unsafe and reprehensible practice, and the deed cannot be considered satisfactory.

The deed of a corporation must be signed by an agent or attorney, who should be careful to execute it in the manner indicated in some of the forms appended. In one case, in Massachusetts, where a deed was written throughout as the deed of a corporation, and their treasurer signed it thus: "In witness whereof, I, the said C C, in behalf of the said company, and as their treasurer, have hereunto set my hand and seal," — it was held that this was the deed of the treasurer, and not the deed of the corporation, and did not transfer the lands. This is an extreme case, and the law might not always be applied with so much severity; but it is best not to incur any such risk. So, too, the rule that a person who is to be authorized to affix the seal of another should be authorized under the seal of the principal, is so general, that, although it has important exceptions, it should always be observed.

The seal is properly a piece of paper wafered on, or sealingwax pressed on. In the New England States generally, and in New

York, nothing else satisfies the legal requirement of a seal. In the Southern and Western States generally, a scrawl, intended for a seal, usually made by writing the word "seal" within a square or diamond, is regarded in law as a seal. If there be but one seal on an instrument, and many parties, all of whom should seal it, this seal will be taken generally for the seal of each one; although, properly, each signer should put a seal against his own name.

The deed should be delivered. If a man makes a deed, and acknowledges it, and keeps it in his possession, and dies, the deed has no effect whatever; no more than if the grantor had put it in the fire. Even where it was recorded, and then taken back by the grantor and kept by him, with words going to show that the grantor did not wish the grantee to know of it, it was held not to have been delivered. But there are no especial words or form necessary for delivery. If the deed, in any way whatever, gets into the possession of the grantee, with the knowledge and consent of the grantor, it is a delivery.

The grantor may deliver it by his agent, and it may be delivered to the agent of the grantee, authorized by him to receive it. Moreover, the law permits a kind of conditional delivery. Thus, the grantor may deliver the deed to a third person, to be delivered by him to the grantee on a certain condition, or when a certain thing is done; and when that condition is performed, or the thing is done, the deed belongs to the grantee, and takes effect in the same way as if it had been delivered to him personally. In legal language, the deed is said to be delivered to the third person, as an

escrow.

So the grantor may put the deed in the hands of the third person, with directions to give it to the grantee after the death of the grantor, provided the grantor does not reclaim it in the mean time. Then the grantor can reclaim it whenever he will, which he cannot do after he has delivered it to the grantee; but if he does not reclaim it during his life, at his death it becomes the property of the grantee, and the law now considers that it was delivered to him when first delivered to that third party. So that deed is good even against creditors, provided that the grantor was perfectly solvent when he put the deed in the hands of the third party, and acted altogether in good faith.

If a deed to a married woman be delivered either to her or to her husband, it is sufficient.

As there must be delivery to the grantee, or to some one for him, so there must be assent and acceptance on his part. The law will help any evidence tending to show such assent, by presuming in favor of the grantee's assent if the deed be wholly and only favor

able to him. But not if there is money to be paid by him, or any thing important to be done by him if he accept the deed.

It is usual and proper that the execution of the deed should be attested by witnesses. In many of our States two witnesses are required by statute. In New York one is enough. In the greater number, witnesses are not absolutely required by statutes, nor by strict law of any kind; but even there it is usual and safer to have them.

The witness should see the party sign; but if the deed is signed near him, and is immediately brought to him by the grantor, who tells him that is his signature, and asks him to witness, this would be sufficient in law.

It is desirable that witnesses, when called on to testify, should remember the signature, sealing, &c.; but it is sufficient in law that they are certain of their handwriting, and can declare under oath that they should not have attested the execution and delivery if they had not seen it. If witnesses are dead, or inaccessible, proof of their handwriting is sufficient; and if this cannot be offered, then proof of the handwriting of the grantor is enough. If witnesses attest the signing, sealing, and delivery, in the common form, proof of their handwriting, in case of their death or absence, is proof of the execution and delivery of the deed.

The witness should, properly, be of sufficient age and understanding, but may be a minor. He should have no interest in the deed. Hence a wife is not a proper witness of a deed to her husband. But the courts, and especially a court of equity, would seldom permit a deed to be avoided through the incompetence of a witness, if there were no suspicion of wrong.

Generally a deed is valid as between the parties, although not acknowledged; but, to entitle it to be recorded, it must be acknowledged. For this purpose the grantor must go before a person qualified by law to receive acknowledgments, and exhibit the deed to him, and acknowledge it as his free act and deed; and the person receiving the acknowledgment then certifies that he has received this acknowledgment, under the proper date.

In general, an acknowledgment may be made before any justice of the peace, or a commissioner appointed for the State in which the land to be conveyed is situated, if the deed is executed in another State, or any consul or consular agent of the United States if the deed is executed in a foreign country. This acknowledgment must be made, or the deed cannot be recorded. And the deed is invalid, as notice, if the acknowledgment is defective, although it is actually recorded.