CHAPTER VI.

FORM OF CONTRACTS.

872. Contracts of record. 873-904. Contracts in writing. 874-893. Contracts under seal. 875. Form of a deed.

877. The seal.

878. Delivery of a deed.

879. Effect of a deed.

880-893. Kinds of deeds.

881. Bonds.

882. Single bill.

883-890. Mortgage.

884. Legal mortgage of lands.

887. Equitable mortgage of lands.

888. Mortgage of chattels.

889. For what debts mortgages may be given.

890. Difference between mortgage and conditional sale.

891. Warrant of attorney.

892. Covenants.

893. Letter of attorney.

894-904. Contracts in writing not under seal.

895. Bills of exchange.

896. Promissory notes.

897-899. Bills of lading.

898. Form of bill of lading.

899. Assignment of bill of lading.

900. Bill of adventure.

901. Charter party.

902. Articles of agreement.

904. Letters or correspondence.

905-909. Contracts not in writing.

910-920. The statute of frauds.

911. Promises by executors or administrators.

912-914. Guaranties.

913. Nature of debt in guaranty.

914. Nature of miscarriage in guaranty.

915. Agreements in consideration of marriage.

916. Contracts for sale of land.

917. Promises not to be performed within one year.

918-920. The memorandum.

919. Form of the memorandum.

920. The signature.

871. It is not sufficient to make agreements; they must be made in such a way that they can be proved and established in a court of justice whenever required; and in some cases, to be valid, they must be reduced to writing in order to comply with certain statutory provisions.

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209

Contracts are divided, as to their form, into those which are of record, those in writing, and those not in writing. These will be considered in order.

872. The principal contract of record is a recognizance, which is an obligation of record, entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law to be done, or to refrain from doing some act forbidden by law which is therein specified.'

As to their form, recognizances are mere acknowledgments before the court, judge, or magistrate having authority to take the same. It is a short entry on the record of the substance of the engagement without the same being signed by the recognizor.

A recognizance is taken for a certain sum, with a condition that the cognizor will pay a debt or do some other thing.

A recognizance in civil cases is entered into by bail, conditioned that they will pay the debt, interest and costs recovered by the other party under certain contingencies, and for other purposes under statutes. A very common case is where a party appeals to a higher court from a judgment, and is to secure payment if the judgment is confirmed.

In criminal cases it is either that the party shall appear before the proper court to abide its judgment, or shall keep the peace or be of good behavior. 873. Much difference exists between a contract under seal and one not under seal, though both be in writing.

874. A contract under seal is called a specialty or deed. A deed is an instrument under seal, written or printed, containing some contract or agreement, and which has been delivered by the parties. This is the generic name for all writings under seal, whether they relate to the conveyance of lands or other matters. But the word deed is in a more contined sense used to designate a conveyance of real estate. A specialty is a written agreement under seal.3

We will consider the form of deeds, the matter and effect of a deed, the kinds of deeds.

875. The deed must contain a contract, must be under seal, and must be delivered. It must be made between competent parties, without fraud or restraint, and must be completely written before delivery. At common law it need not be signed, but a conveyance of land must now be signed in all the states except Florida, Mississippi, North Carolina, Tennessee and Texas.

876. It is evident from our definition of a deed that some contract must be the object of the instrument, for if it were not for this, there would be no deed in the true meaning of the word. An epistolary letter is a writing, sealed and delivered, but it is not a deed. And a blank piece of paper, signed (which was a writing), sealed and delivered, and afterward written upon, was held to be no deed.1

877. To make a valid deed a writing must be sealed, for if it has no seal it is no deed; the question then arises as to what is a seal. A seal is defined to be an impression upon wax, wafer, or some other tenacious substance capable of being impressed. Lord Coke defines a seal to be wax, with an impression." Sigillum," says he, "est cera impressa, quia cera sine impressione non est sigillum." It is presumed, however, that if wax were dropped on the paper or parchment while hot and it adhered to it, such wax would be considered as a seal if the party had adopted it as such, whether any impression had been made on it or not.

3

1 2 Sharswood, Blackst. Comm. 341; Brooks, Abr. Recognizance; 1 Chitty, Crim. Law, 90. Coke, Litt. 171; 2 Sharswood, Blackst. Comm. 295; Sheppard, Touchst. 50.

Taylor v. Glazier, 2 Serg. & R. Penn. 502; Mitchell ». Parham, Harp. So. C. 1.

6

Duncan v. Hodges, 4 McCord, So. C. 239; Perminter v. McDaniel, I Hill So. C. 267. Warren v. Lynch, 5 Johns. N. Y. 239.

Coke, 3 Inst. 169.

Merlin' defines a seal to be a plate of metal with a flat surface, on which are engraved the arms of a prince or private individual, or other device, with which an impression is made on wax or other soft substance, or on parchment or paper, in order to authenticate them; the impression thus made is also called a seal.

All these definitions are imperfect in this country, because in some of the states the impression upon wax is not always used, and a circular, oval, or square mark, opposite the name of the signer, has the same effect as a seal. It is usually made with a pen, and the shape of it is altogether indifferent.8

When there are several obligors and but one seal, it is presumed each one adopted the same seal."

878. A delivery is necessary to a deed, but it is not requisite that the delivery should be express, it may be implied from the acts of the grantor; as, where the deed was put into the recorder's office to be recorded at the request of the grantor, for the use of the grantee, and the grantor subsequently assented to it, this was considered as a delivery.10 And putting a deed into the post-office by the grantor, directed to the grantee, is a sufficient delivery." presumption of delivery arises from the fact that the deed is in possession of the grantee.12

A deed may be delivered to a third person for the use of the grantee; it takes effect immediately, and is then absolute; or it may be delivered to such person conditionally or as an escrow. It has then no binding effect until the condition has been performed,13 and, by relation, it refers back to the delivery.

879. A deed or specialty differs from any other agreement in writing in various particulars, the principal of which are the following:

It always imports a consideration, and although one is generally stated, it is not indispensably requisite.1

The right to it cannot be transferred at common law, like a promissory note, by a bare indorsement; such indorsement may convey the equitable right, but not the legal title.

It is not barred by the act of limitations, and no presumption of payment arises till a period of twenty years has elapsed, nor then, if the reason for the non-payment can be explained.

A man who makes a specialty is estopped from denying or disproving any

7 Merlin, Répert. Sceau.

2 Serg. & R. Penn. 503; United States v. Coffin, Bee, Dist. Ct. 140; Duncan v. Duncan, 1 Watts, Penn. 322; Cromwell v. Tate, 7 Leigh, Va. 301; Commerford v. Cobb, 2 Fla. 418. A scroll with the pen is a sufficient seal in Arkansas, Delaware, Florida, Michigan, Wisconsin, Minnesota, Oregon, Missouri, Ohio, Texas, Illinois, Mississippi, Georgia, Indiana, Maryland, North Carolina, Pennsylvania and South Carolina. Ark. Dig. St. 1858, Ch. 155, 2; Thompson, Dig. Fla. Laws, 348; 2 Mich. Comp. Laws 844, Ch. 38, 39; Wisc. Rev. St. Ch. 86, 239; Oregon, Stat. 1858, p. 523, 37; 1 Mo. Rev. St. 1855, p. 352; Ohio, Rev. St. Ch. 102, 1; Oldham & W. Dig. Tex. Laws, 1859; Ill. Comp. St. 1858, p. 240; Miss. Rev. Code, 355; Cobb, New Dig. Ga. Stat. 1851, p. 274. The rule of the common law still holds in New Jersey and the New England states. It seems that in all the states an impression stamped on the paper is a good seal, and this is the common method now of affixing corporation seals. Pillow v. Roberts, 13 How. 473.

9

Mackay v. Bloodgood, 9 Johns. N. Y. 285; Tasker v. Bartlett, 5 Cush. Mass. 359; Lamb den v. Sharp, 9 Humphr. Tenn. 224.

10

Hedge v. Drew, 12 Pick. Mass. 141.

" McKenney v. Rhodes, 5 Watts, Penn. 343. See White v. Bailey, 14 Conn. 271.

13 Green v. Yarnall, 6 Mo. 326; Dunn v. Games, 1 McLean, C. C. 321; Hatch v. Haskins, 17 Me. 391.

13 Currie v. Donald, 2 Wash. Va. 68; 14 Conn. 271; Wheelright v. Wheelright, 2 Mass

447.

14 Horn v. Gartman, 1 Fla. 63.

fact recited in it; 15 in a simple contract, on the contrary, although an admission in it of a fact affords evidence of its truth, it may be disproved by other proof.16

880. We have already observed that the word deed has two meanings: one, which is the generic name for all instruments under seal, and another, which, in a more confined sense, signifies a conveyance of real estate. Of this last we shall have occasion to speak in another place. Here our observations will be confined to the first. Deeds of this description are bonds, single bills, mortgages, and covenants.

881. A bond is an obligation in writing and under seal, by which the maker, called the obligor, binds himself, his heirs, executors and administrators, to pay to the other party, called the obligee, a certain sum of money. A conditional bond (which is the kind generally used) has also a condition that if the obligor does some particular act the obligation shall be void. The sum of money first specified is called the penal sum or penalty of the bond, and is usually double the sum mentioned in the condition where the condition is to pay money. A bond conditioned to do an unlawful act is void. If the condition becomes impossible, the bond is an absolute obligation. When a bond becomes absolute the whole penalty was formerly recoverable at law, but the courts of equity interfered, and the equitable doctrine now prevails, and the obligee in this can only recover the damages which he has sustained by the breach of the condition with interest and costs, the whole amount not to exceed the penalty of the bond. The following are the requisites of a valid bond:

There must be proper parties, one or more obligors, and one or more obligees.

The words must clearly declare the intention of the parties, but no particular form of words is required.

It must be in writing, on paper or parchment, and if made on other materials, it is void.17

It must be under seal.

It must be delivered.

It

It ought to be dated, but as the date is no substantial part of a deed, a bond that either has no date, or an impossible one, is not void on that account. takes effect from the day of delivery.'

18

882. A single bill is in the form of a bond without any condition; it must be in writing, under seal, and delivered, and the object must be to promise a payment of money.

883. Mortgages are of several kinds; as they concern the nature of property mortgaged, they are mortgages of lands, tenements, and hereditaments, or of goods and chattels; as they affect the title of the thing mortgaged, they are legal and equitable.

884. A legal mortgage may be described to be a conveyance by deed of lands by a debtor, called the mortgagor, to his creditor, called the mortgagee, as a pledge and security for the payment of money borrowed, or the performance of a covenant, with a proviso that the conveyance shall be void on the payment of the money and interest on a certain day, or the performance of the covenant by the time appointed; by which the conveyance of the land becomes absolute at law; yet the mortgagor has an equity of redemption, that is, a right in equity to

15 2 Sharswood, Blackst. Comm. 295; Comyn, Dig. Estoppel, A; 1 Greenleaf, Ev. 24, 25, 211.

16 Parish v. Stone, 14 Pick. Mass. 201, 202.

Bacon, Abr. Obligations, A; Coke, Litt. 229; 2 Sharswood, Blackst. Comm. 297.

17

18

2 Sharswood, Blackst. Comm. 304.

perform the agreement in a reasonable time, and to call for a reconveyance of the land.19

A mortgage differs from a pledge; the general property passes by a mortgage, while by a pledge only the possession or at most a special property passes. All kinds of property, real or personal, which are capable of an absolute sale may be the subject of a mortgage; rights in remainder and reversion, franchises and choses in action, may therefore be mortgaged.

885. As to the form, a mortgage must be in writing and under seal, between parties capable of contracting. It is usual to insert the condition of the mortgage in the deed, but sometimes the conveyance of the land is absolute, and the grantee, by a separate instrument, called a deed of defeasance, agrees to reconvey the land to the grantor, on his paying a certain sum of money. At law the defeasance must be of as high a nature as the conveyance to be defeated.20 The two instruments make but one contract, and both must be recorded in order to give them validity as a mortgage against lands."

In equity it is held in some of the states that any agreement in writing is sufficient to constitute a defeasance, though the mortgage be sealed."

In general, whatever clauses or covenants are introduced in a conveyance, though they seem to import an absolute disposition or an additional purchase, yet if upon the whole it appears to have been the intention of the parties that such conveyance should have been a mortgage only, or pass an estate redeemable, a court of equity will always so construe it. And it is a universal rule that an instrument once a mortgage is always a mortgage.24

23

886. At common law mortgages were held conveyances upon condition, and the estate became absolute unless the condition was performed. But in equity the mortgage is only a pledge of the land as security for a debt; the debt is the principal obligation, the mortgage only collateral. The equitable doctrine has been adopted to an unequal extent by the courts of law of the different states. There must be some evidence of a debt from the grantor to the grantee in order to construe the instrument as a mortgage.

It

This is usually a bond or note given with the mortgage. But this debt need not be a personal obligation, enforceable against the grantor. is enough if it bind the property,25 and the mortgage being collateral is discharged if the debt is paid. Where the only evidence of the debt is a proviso that if the grantor pays, etc., the deed shall be void, the grantee has no claim against the mortgagor personally, but can only enforce his remedy against the land.26

887. An equitable mortgage of lands is a lien recognized in equity as a security for the payment of debts. It may be created by a deposit of the titledeeds. This is regarded as an agreement to make a mortgage, and is recog

Lund v. Lund, 1 N. H. 39; Flagg v. Mann, 14 Pick. Mass. 467; Eaton v. Green, 22 Pick. Mass. 526; Kelly v. Thompson, 7 Watts, Penn. 401; Dey v. Dunham, 2 Johns. Ch. N. Y. 191; Richardson v. Woodbury, 43 Me. 206.

"Brown v. Dean, 3 Wend. N. Y. 208; Jaques v. Weeks, 7 Watts, Penn. 261.

"Reed v. Gaillard, 2 Dess. Ch. So. C. 552; Hicks v. Hicks, 5 Gill & J. Md. 75; Batty v. Snook, 5 Mich. 231; Cross v. Hepner, 7 Ind. 359; Breckinridge v. Auld, 1 Rob. Va. 148; Belton v. Avery, 2 Root, Conn. 279; Marshall v. Stewart, 17 Ohio, 356.

Vern. Ch. 183; Rice v. Rice, 4 Pick. Mass. 349; Catlin v. Chittenden, Brayt. Vt. 163; Page v. Foster, 7 N. H. 392.

2 Cow. N. Y. 324; Wheeland v. Swartz, 1 Yeates, Penn. 584.

Russell v. Southard, 12 How. 139; Smith v. People's Bank, 24 Me. 185; Hickox v. Lowe, 10 Cal. 197; Murphy v. Calley, 1 All. Mass. 108; Flagg v. Mann, 2 Sumn. C. C. 534. Salisbury v. Philips, 10 Johns. N. Y. 57; Drummond v. Richards, 2 Munf. Va. 337; Conway v. Alexander, 7 Cranch, 218; Scott v. Fields, 7 Watts, Penn. 360; Hill v. Eliot, 12 Mass. 26.