Chapter XX.

OF ALIENATION BY DEED.

295-344.

In treating of deeds, I shall consider first their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided.

Definition.

I. First, then, a deed is a writing sealed and delivered by the parties. It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, zar'eoxyu because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemnly and deliberately avowed. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half of the word on one part and half on the other. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even: and therefore called a deed poll, or a single deed.

Requisites.

II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with for the purposes intended by the deed: and also a thing, or subject-matter, to be contracted for; all of

which must be expressed by sufficient names. So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.

Consideration.

Secondly, the deed must be founded upon good and sufficient consideration. Not upon an usurious contract; nor upon fraud or collusion, either to deceive purchasers bona fide, or just and lawful creditors; any of which bad considerations will vacate the deed, and subject such persons, as put the same in use, to forfeitures and often to imprisonment. A deed also, or other grant, made without any consideration, is as it were, of no effect: for it is construed to inure, or to be effectual, only to the use of the grantor himself. The consideration may be either a good or a valuable one. A good consideration is such as that of blood, or of natural love and effection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty; a valuable consideration is such as money, marriage, or the like; which the law esteems an equivalent given for the grant; and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favor of creditors, and bona fide purchasers.

Must be Written.

Thirdly, the deed must be written or I presume printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed. Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both these desirable qualities; for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3, enacts, that no lease, estate or interest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value), shall be looked upon as of greater force than a lease, or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid: unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized in writing.

Parts of a Deed.

Fourthly, the matter written must be legally and orderly set forth; that is, there must be words sufficient to specify the agreement and bind the parties: which sufficiency must be left to the courts of law to determine. For it is not absolutely necessary in law to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; and therefore I will here mention them in their usual order.

The Premises.

1. The premises may be used to set forth the number and names of the parties with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of facts, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted.

Habendum and Tenendum,

2, 3. Next comes the habendum and tenendum. The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As if the grant be "to A and the heirs of his body," in the premises, habendum "to him and his heirs forever," or vice versa; here A has an estate-tail and a fee-simple expectant thereon. But had it been in the premises "to him and his heirs," habendum "to him for life," the habendum would be utterly void; for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. The tenendum, "and to hold," is now of very little use and is only kept in by custom. It was sometimes formerly used to signify the tenure by which the estate granted was to be holden; viz., "tenendum per servitium militare, in burgagio, in libero socagio, etc." But, all these being now reduced to free and common socage, the tenure is never specified.

Reddendum.

4. Next follow the terms of stipulation, if any, upon which the grant is made; the first of which is the reddendum; or reservation, whereby the grantor doth create or reserve some new

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thing to himself out of what he had before granted. As "rendering therefore yearly the sum of ten shillings, or a pepper-corn, or two days' ploughing, or the like." To make a reddendum good, if it be of anything newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed. But if it be of ancient services or the like annexed to the land, then the reservation may be to the lord of the fee.

Condition.

5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated: as "provided always, that if the mortgagor shall pay the mortgagee 500l. upon such a day, the whole estate granted shall determine;" and the like. Warranty.

6. Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted.

Covenants.

7. After warranty usually follow covenants, or conventions, which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give something to the other. Thus the grantor may covenant that he hath a right to convey; or for the grantee's quiet enjoyment, or the like: the grantee may covenant to pay his rent, or keep the premises in repair, etc. If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise; if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty. It is also in some respects a less security, and therefore more beneficial to the grantor; who usually covenants only for the acts of himself and his ancestors, whereas a general warranty extends to all mankind. For which reasons the covenant has in modern practice totally superseded the other. Conclusion.

8. Lastly comes the conclusion, which mentions the execution and date of the deed, or the time of its being given or executed, either expressly, or by reference to some day and year before mentioned. Not but a deed is good, although it mention no date; or hath a false date; or even if it hath an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is, delivered, can be proved.