DEED.

§ 293. WHEN a deed or specialty is the foundation of the action, whether it be an action of covenant or of debt, and the defendant would deny the genuineness or legal formality of execution of the instrument, this fact is put in issue by the plea of non est factum. Under this plea, the plaintiff needs not prove the other averments in his declaration.1

§ 294. The burden of proof of the formal execution of a deed, whether it is put in issue by a special plea, or is properly controverted under any other issue, is upon the party claiming under it. This proof consists in producing the deed, removing any suspicions arising from alterations made in it, and showing that it was signed, sealed, and delivered by the obligor; and where any particular formalities are required by statute, as essential to its validity, such as a stamp, or the like, the party must show that these have been complied with.

§ 295. The subject of the production of deeds, and of the nature and effect of alterations in them, has been treated in the preceding volume.2 The cases in which the evidence of the subscribing witnesses is dispensed with, have also been considered. In the proof of signing and sealing, it is not necessary that the witnesses should have seen this actually done; it is sufficient if the party showed it to them as his

1 Chitty on Pl. 424, 428; Kane v. Sanger, 14 Johns. 89; Gardiner v. Gardiner, 10 Johns. 47; The People v. Rowland, 5 Barb. S. C. R. 449. As to the proof of a lost deed, see ante, Vol. 1, § 558, note.

2 Ante, Vol. 1, § 144, 559 – 563, 564–568.

3 Ante, Vol. 1, § 569-575. As to the proof of the formal execution of deeds, see 4 Cruise's Dig. tit, 32, ch. 2, Greenleaf's notes.

hand and seal, and requested them to subscribe the instrument as witnesses. So, where the witness was requested to be present at the execution of the writings, and saw the money paid, and proved the handwriting of the obligor, but did not see him sign, seal, or deliver the instrument, this was held sufficient proof, to admit the instrument to go to the Jury.2 If the attesting witness has no recollection of the facts, but recognizes his own signature as genuine, and from this, and other circumstances, which he states to the Jury, has no doubt that he witnessed the execution of the instrument, this also, uncontradicted, has been held sufficient. And if the witness recollects seeing the signature only, but the attestation-clause is in the usual form, the Jury will be advised, in the absence of controlling circumstances, also to find the sealing and delivery. Indeed, if there is any evidence, however slight, tending to prove the formal execution of the instrument, it is held sufficient to entitle it to go to the Jury. If the signa

1 Munns v. Dupont, 3 Wash. 42; Ledgard v. Thompson, 11 M. & W. 41 ; Infra, tit. WILLS, § 676.

2 Lesher v. Levan, 2 Dall. 96.

3 Pigott v. Holloway, 1 Binn. 436. See also, Dewey v. Dewey, 1 Metc. 349; Quimby v. Buzzell, 4 Shepl. 470; New Haven Co. Bank v. Mitchell, 15 Conn. R. 206; Ante, Vol. 1, § 572; Pearson v. Wightman, 1 Const. Rep. 344; Denn v. Mason, 1 Coxe R. 10; Currie v. Donald, 2 Wash. 58; Russell v. Coffin, 8 Pick. 143.

4 Burling v. Paterson, 9 C. & P. 570; Curtis v. Hall, 1 South. 148; Long v. Ramsey, 1 S. & R. 72.

5 Berks Turnp. Co. v. Myers, 6 S. & R. 12; Sigfried v. Levan, Id. 308; Scott v. Galloway, 11 S. & R. 347; Churchill v. Speight, 2 Hayw. 338. In New Hampshire, (Rev. St. ch. 130, § 3); Connecticut, (Rev. St. 1838, p. 390; Coit v. Starkweather, 8 Conn. R. 293); Ohio, (3 Ohio R. 89, Walk. Introd. 354); Vermont, (Rev. St. 1839, ch. 60, § 4); Georgia, (Prince's Dig. p. 160, § 6); Florida, (Thomps. Dig. p. 177); Michigan, (Rev. St. 1846, ch. 65, § 8); and Arkansas, (Rev. St. 1837, ch. 81, § 12); two witnesses are required, to the validity of a deed of conveyance of lands. In Indiana, (Rev. St. 1838, ch. 44, § 7); New Jersey, (Elmer's Dig. p. 83, § 12); Illinois, (Rev. St. 1833, p. 131, § 9); and in Alabama, (Aikin's Dig. p. 88,) the deed must be either acknowledged before a magistrate, or be proved by one or more of the attesting witnesses, before it is admissible in evidence. But in the latter State, the statute is not considered as excluding the proof by evidence aliundè. Robertson v. Kennedy, 1 Stew. 245. See

ture of the obligor's name is made by a stranger, in his presence and at his request, it is a sufficient signing.1

§ 296. In regard to sealing, where there are several obligors, or grantors, it is sufficient if there be several impressions, though there be but one piece of wax.2 And in the sale of lands by a committee of a corporation, it is sufficient if the deed have but one seal, if it be signed by all the members of the committee.3 If the deed bears on its face a declaration that it was signed and sealed, and there is a seal upon it, proof of the signature is evidence to be left to a Jury that the party sealed and delivered it, even though the witness does not recollect whether or not it had a seal, at the time of attestation. And if the party, on being inquired of, acknowledge his signature without objection, this also is sufficient, though it were signed without his authority.

further, as to witnesses, 4 Cruise's Dig. tit. 32, ch. 2, § 77, note, (Greenleaf's ed.) Whether a deed, invalid to pass the estate, for want of witnesses, can be read to support an action of covenant, on proof of its execution at Common Law, quære; and see French v. French, 3 N. Hamp. R. 234; Pritchard v. Brown, 4 N. Hamp. R. 397; Merwin v. Camp, 3 Conn. R. 35, 41.

1 Rex v. Longnor, 1 Nev. & Man. 576. So, the party's mark is a sufficient signature. Pearcy v. Dicker, 13 Jur. 997.

2 Perk. § 134. It has also been held, that many obligors may adopt one seal. Hollis v. Pond, 7 Humph. 222. See, as to seals, 4 Cruise's Dig. tit. 32, chap. 2, § 54, note, (Greenleaf's ed.) In Kentucky, obligatory writings without seal are placed on the footing of specialties; by Stat. 1812, ch. 375, §8; Hughes v. Parks, 4 Bibb, R. 60; Handley v. Rankin, 4 Monr. 556. 3 Decker v. Freeman, 3 Greenl. 338. So, if a bond be executed by a private agent of several obligors, one seal is sufficient. Martin v. Dortch, 1 Stew. 479.

4 Talbot v. Hodson, 7 Taunt. 251; 2 Marsh. 527, S. C.; Ball v. Taylor, 1 C. & P. 417. In some modern cases it is held, that proof of the signature alone is sufficient proof of the seal, though there be no mention of the seal in the body of the instrument. Merritt v. Cornell, 5 N. York, Leg. Obs. p. 300; Taylor v. Glaser, 2 S. & R. 504; Sicard v. Davis, 6 Pet. 137; Lesher v. Levan, 2 Dall. 96.

5 Byers v. McClanahan, 6 Gill & J. 250.

6 Hill v. Scales, 7 Yerg. 410. In several of the American States, south of New York, a scroll, made with a pen, denoting the place of a seal, is held a sufficient sealing. 4 Kent, Comm. 453; M'Dill v. M'Dill, 1 Dall. 63;

§ 297. The delivery of a deed is complete, when the grantor or obligor has parted with his dominion over it, with intent that it shall pass to the grantee or obligee; provided the latter assents to it, either by himself or his agent. It follows, therefore, that no form of words is necessary, if the act is done; and that the delivery may be complete, without the presence of the other party, or any knowledge of the fact by him, at the time, if it be made to his previously constituted agent, or if, being made to a stranger, the transaction is subsequently ratified.1 The receipt of the purchase-money, or bringing an action to recover it, is evidence of the delivery of the deed. So, where the obligor, after signing and sealing a bond, held it out to the obligee, saying "here is your bond; what shall I do with it?"- this has been held a sufficient delivery, though it never came to the actual pos

Long v. Ramsay, 1 S. & R. 72; Taylor v. Glaser, 2 S. & R. 504. But in some States, it is necessary that the instrument should in such cases contain some expression, showing an intent to give it the effect of a sealed instrument. Baird v. Blaigrove, 1 Wash. 170; Austen v. Whitlock, 1 Munf. 487; Anderson v. Bullock, 4 Munf. 442; or, at least, that the obligor acknowledged it as his seal; U. States v. Coffin, Bee, R. 140. In New Jersey, the scroll is restricted to money bonds. Hopewell v. Amwell, 1 Halst. 169. See also Newbold v. Lamb, 2 South. 449. But it seems that such an instrument, in States where the Common-Law rule prevails, would still be regarded only as a simple contract. Adam v. Kerr, 1 B. & P. 360; Warren v. Lynch,

5 Johns. 239.

1 Porter v. Cole, 4 Greenl. 25, 26, per Mellen, C. J.; ante, Vol. 1, § 568, note (8); 4 Cruise's Dig. tit. 32, ch. 2, § 46, 64, notes, (Greenleaf's ed.); Mills v. Gore, 20 Pick. 28, 36; Hatch v. Hatch, 9 Mass. 307; Maynard v. Maynard, 10 Mass. 456; Harrison v. Phillips Academy, 12 Mass. 456; Chapel v. Bull, 17 Mass. 213, 220; Woodman v. Coolbroth, 7 Greenl. 181; Goodrich v. Walker, Johns. Cas. 256; Barnes v. Hatch, 3 N. Hamp. R. 304; Ward v. Lewis, 4 Pick. 588; Goodright v. Gregory, Lofft, R. 339. Though the grantor die before the deed reaches the hands of the grantee, it is still a good delivery. Wheelwright v. Wheelwright, 2 Mass. 447. And it is not necessary that the delivery be made to an agent of the grantee or obligee. Doe v. Knight, 5 B. & C. 671. It may remain in the grantor's own custody, as bailee. Id.; Scrugham v. Wood, 15 Wend. 545; Hall v. Palmer, 8 Jur. 459; Hope v. Harman, 11 Jur. 1097. See further, Verplank v. Sterry, 12 Johns. 536; Ruggles v. Lawson, 13 Johns. 285; Gardiner v. Collins, 3 Mason, R. 398; Harris v. Saunders, 2 Strobh. Eq. 370. 2 Porter v. Cole, 4 Greenl. 20.

session of the obligee. So, if the parties meet, read, sign and acknowledge the deed before the proper officer, this has been held sufficient evidence of delivery, though the deed remained afterwards in the possession of the grantor.2 Putting the deed in the post-office, addressed to the grantee, is also held sufficient. If the effect of the instrument is beneficial to the party to whom it is made, as, for example, if it be an absolute conveyance of land in fee-simple, or an assignment to pay a debt, his assent to it will be presumed. The possession of a deed by the grantee or obligee, is, in the absence of opposing circumstances, primâ facie evidence of delivery.5 So also, is the registration of a deed, by the grantor, if it be done for the use of the grantee. And where the instrument was executed in the presence of a witness, who signed his name to the attestation clause, which was in the usual formula of "signed, sealed, and delivered," but the deed had never been out of the actual possession of the grantor; it has been held that in the absence of opposing circumstances, the jury might properly find that it was delivered. And a deed duly executed and acknowledged will be presumed to have been delivered on the day of its date, unless the contrary is proved; the burden of proof being on the party alleging a delivery on another day.8

1 Folly v. Vantuyl, 4 Halst. 153. See also, Byers v. McClanahan, 6 G. & J. 250.

2 Scrugham v. Wood, 15 Wend. 545.

3 McKinney v. Rhoades, 5 Watts, 343.

4 Camp v. Camp, 5 Conn. R. 291; Jackson v. Bodle, 20 Johns. 184; Halsey v. Whitney, 4 Mason, R. 206.

5 Mallory v. Aspinwall, 2 Day, R. 280; Clarke v. Ray, 1 H. & J. 323 ; Ward v. Lewis, 4 Pick. 518; Union Bank v. Ridgley, 1 H. & Gill, 324; Hare v. Horton, 2 B. & Ad. 715; Maynard v. Maynard, 10 Mass. 456, 458; Den v. Farlee, 1 New Jersey, 279.

6 Hedge v. Drew, 12 Pick. 141; Chess v. Chess, 1 Penn. 32. And see Powers v. Russell, 13 Pick. 69; Elsey v. Metcalf, 1 Denio, R. 323; Commercial Bank v. Reckless, 1 Halst. Ch. R. 430; Ingraham v. Grigg, 13 S. & M. 22; Rathbun v. Rathbun, 6 Barb. S. C. R. 98.

7 Hope v. Harmann, 11 Jur. 1097. And see Hall v. Bainbridge, 12 Ad. & El. 699, N. S.

8 McConnell v. Brown, Lit. Sel. Cas. 459; Elsey v. Metcalf, 1 Denio, R.