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ures, and often to imprisonment. A deed without consideration is of no effect, for it is construed to enure or to be effectual, only to the use of the grantor himself.
Good and Valuable Consideration. The consideration may be either good or valuable. A good consideration is such as that of blood, or of natural love and affection, 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 for the grant, and hence is founded on motives of justice. Deeds made upon good consideration only, are deemed as merely voluntary, and are frequently set aside in favor of creditors and bona fide purchasers.
Third. Must be Written or Printed. It may be in any character or language, but must be upon paper or parchment. If written on stone, board, linen, leather or the like, it is no deed. Nothing is more secure from alteration or more durable than writing upon paper or parchment. It must have the regular stamps required by statute for the increase of the public revenue, else it cannot be given in evidence.
Leases in Writing. Formerly many conveyances were made by parol or word of mouth only, but as this often led to fraud, a statute was passed in the reign of Charles II, that no lease-estate or interest in lands made by livery of seisin, or by parol only, except leases, not exceeding three years from the making, whereon the reserved rent is not less than two thirds of the real value, shall be looked upon as a greater estate 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 authorized in writing.
Fourth. The Arrangement of the Matter. The matter written must be legally or orderly set forth, that is, there must be words sufficient to specify the agreement, and bind the parties. Courts of law determine the sufficiency. The formal parts usually set forth in deeds are not absolutely necessary, so there be sufficient words to declare legally and clearly the party's meaning. But as such formal parts are calculated to convey that meaning in the clearest manner, and have been settled by the wisdom of ages, it is prudent to retain them.
ALIENATION BY DEED.
1. The Premises. These set forth the number and names of the parties, with their additions or titles. These also contain the recital of such deeds, agreements or matters of fact required to explain the reasons for the present transactions, and herein is also set down the consideration. And then follows the certainty of the grantor, the grantee, and thing granted.
2. The Habendum. Its office is to determine what estate or interest is granted by the deed, though this may be 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 a 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 estatetail, 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.
3. The Tenendum. The tenendum, and “to hold," is now of little use, and is only retained by custom. Sometimes formerly it was used to signify the tenure, by which the estate granted was to be held, but now it is never specified. Before the statute of quia emptores, it was sometimes used to denote the lord, of whom the land should be held, but as that statute, directed all future purchases to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum became obsolete.
4. The Reddendum. Then follow the terms of stipulation, if any, upon which the grant is made, the first of which is the reddendum, or reservation to the grantor of something out of what he had before granted, as a sum for rent. Under the feudal system, this rent, in chivalry, consisted chiefly of military services; in villenage, of the most slavish offices, and in socage, usually of money or of services, of any other certain profit. To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, and not to a stranger.
5. Condition. This 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,” etc.
6. Warranty. Next follows the clause of warranty, whereby the grantor, for himself and his heirs, warrants and secures
to the grantee, the estate so granted. By the feudal constitution, if the vassal's title to enjoy the feud was disputed, he might call the lord or donor to warrant or insure the gift, which if he failed to do, and the vassal was evicted, the lord was bound to recompense him with another feud of equal value. By our ancient law, before the statute of quia emptores, if a man enfeoffed another in fee, by the feudal word dedi, to hold of himself and his heirs by certain services, the law annexed a warranty to the grant, which bound the feoffor and his heirs, to whom the services were originally stipulated to be rendered.
Bound to Warrant Title. On a similar principle, in case, after partition of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty, because they enjoy the equivalent. And so, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs, to whom the rent is payable, are bound to warrant the title. But in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs, because it is his mere personal contract, the tenure resulting back to the lord of the fee. In other forms of alienations, introduced since the statute, no warranty is implied, hence it became necessary to add an express clause of warranty to bind the grantor and his heirs, which is a kind of covenant real.
Express Warranties. These express warranties were introduced to evade the strictness of the feudal doctrine of non-alienation, without the consent of the heir, For though he, at the death of his ancestor, might have entered on any tenements, that were aliened without his concurrence, yet, if a clause of warranty was added to the ancestor's grant, this covenant, descending upon the heir, insured the grantee, not so much by confirming his title, as by obliging such heir to yield him a recompense in lands of equal value. The law, iu favor of alienations, did not suppose that an ancestor would wantonly disinherit his next of blood, and therefore presumed that he had received a valuable consideration, and that this equivalent descended to the heir, together with the ancestor's warranty. So that when an ancestor conveyed to a stranger and his heirs, or released the right in fee-simple to one in possession, adding a warranty to his deed, such warranty not only bound the warrantor himself, but also his heir, and this whether that warranty was lineal or collateral to the title of the land.
Lineal Warranty. Lineal warranty was where the heir derived, or might by possibility have derived, his title to the land warranted either from or through the ancestor who made the warranty; as where a father or an elder son, in his father's lifetime, released to the disseisor of either themselves or the grandfather with warranty, this was lineal to the younger son.
Collateral Warranty. Collateral warranty was, where the heir's title to the land neither was, nor could have been derived from the warranting ancestor; as where a younger brother released to his father's disseisor, with warranty, this was collateral to the elder brother. But where the conveyance, to which the warranty was annexed, immediately followed a disseisin, or operated itself as such, this being in its original founded on the tort or wrong of the warrantor, was termed a warranty, commencing by disseisin, and was not binding on the heir of such tortious warrantor.
Obligation of the Heir. In both these warranties, the obligation of the heir in case the warrantee was evicted, to yield him other lands in their stead, was only on condition, that he had other sufficient lands by descent from the warranting ancestor. But though without assets, he was not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was barred from claiming the land himself, otherwise he would then gain assets by descent, if he had them not before, and must fulfil the warranty of his ancestor.
Heirs' Duty in Collateral Warranties. The same rule, with less justice, was adopted in collateral warranties, which likewise, though no assets descended, barred the heir of the warrantor from claiming the land by any collateral title, as he might hereafter have assets by descent, either from or through the same ancestor. In view of the inconvenience of this latter branch of the rule, when tenants of the curtesy aliened their lands with warranty, which collateral warranty of the father descending to the son, barred him from claiming his maternal inheritance, the statute of Gloucester declared, that such warranty should be no bar to the son, unless assets descended from the father. By statute of Anne, all warranties by any tenant for life shall be void against those in remainder or reversion, and all collateral warranties by any ancestor, who has no estate of inheritance in possession, shall be void against his heir. A tenant in tail in possession may now in some cases make a good conveyance in fee-simple, by superadding a warranty to his grant, which, if accompanied with assets, bars his own issue, and without them bars such of his heirs, as may be in remainder or reversion.
7. Covenants. These 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 has 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. If the party covenants for himself and his heirs, it is a covenant real, and descends upon the heirs, who are bound to perform it, provided they have assets by descent. 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 a covenant a better security than any warranty. In some respects it is a less security, and therefore more beneficial to the grantor, who usually covenants only for the acts of himself and his ancestor, whereas a general warranty extends to all mankind. For which reason, the covenant in modern practice has superseded the other.
8. Conclusion. This 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 that a deed is good, which mentions no date, or has a false date, or even an impossible date, as the thirtieth of February, provided the real date of delivery can be proved.
Fifth. Reading of the Deed. This is requisite, when any of the parties express a desire for it, and if not done on request, the deed is void as to him. If he can, he should read it himself, but if blind or illiterate, it should be read to him. If it be read falsely, it will be void for such part as is misrecited, unless it be agreed, by collusion, that the deed shall be read falsely, on purpose to make it void, in which case, it shall bind the fraudulent party.
Sixth. Sealing the Deed. It is requisite that the party making the deed should seal, and now in most cases, I apprehend, should sign it also. The use of seals, as a mark of authen
1 Such warranties of real estate have long fallen into disuse.