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ticity to letters and papers, is extremely ancient. We read of it among the Jews and Persians, in the earliest and most sacred records of history. In the civil law also, seals were the evidence of truth, and were required on the part of the witnesses at least, on the attestation of every testament. In the times of our Saxon ancestors, they were seldom used in England. They usually affixed the sign of the cross, which custom the illiterate imitate to this day, by signing a cross for their mark, when unable to write their names.1 The Normans introduced waxen seals. Coats of arms were not introduced into seals, until about the reign of Richard I, who brought them home from the crusade.
Signing the Deed. The neglect of signing and the resting only upon the authenticity of seals, remained very long among us, for it was held in all our books, that sealing alone was sufficient to authenticate a deed, and so the common form of attesting deeds, “sealed and delivered," continues to this day. This too, noth withstanding the statute of Charles II revives the Saxon custom, and expressly directs the signing in all grants of lands, and many other species of deeds. Signing now seems as necessary as sealing, though it has been sometimes held, that the one includes the other.2
Seventh. Delivery of the Deed. The deed must be delivered by the party himself or his certain attorney, which is expressed in the attestation “sealed and delivered.” A deed takes effect only from its delivery, for if the date be incorrect, the delivery ascertains the time of it. And if another person seals the deed, yet if the party deliver it himself, he thereby adopts the sealing, and by a parity of reason, the signing also, and makes them both his own.
In Escrow. A delivery may be either absolute, that is, to the grantee himself, or to a third person to hold till some conditions be performed on the part of the grantee; in which last case, it is not delivered as a deed, but as an escrow, that is, as a scroll or writing, which is not to take effect, as a deed, till the conditions be performed, and then it is a deed to all intents and purposes.
Eighth. Attestation of the Deed. This is the execution in the presence of witnesses. This is necessary, rather for preserving the evidence, than for constituting the essence of the deed. Our modern deeds are merely an improvement on the brevia testata, or written memoranda of a conveyance in feudal times. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names, but they only heard the deed read, and then the clerk added their names, Witnesses now usually subscribe their attestations either at the bottom, or on the back of the deed. III. AVOIDING A DEED.
1 A mere scroll in lieu of a seal, suffices in most of the United States.
2 Some writers, however, deem “signing” not essential, unless in cases, uader the Statute of Frauds, and deeds executed under powers.
Essentials of a Deed. If a deed wants any of the essential requisites above mentioned, it is a void deed, ab initio:
(1) Proper parties and a proper subject matter.
When Avoided, by Matter Ex Post Facto. (1) By erasure, interlining or other alterations in any material part, unless a memorandum be made thereof, at the time of the execution and attestation.
(2) By breaking off, or defacing the seal.
(3) By delivering it up to be cancelled, that is, to have lines drawn over it in the form of lattice work or cancelli, or any other obliteration or defacing.
(4) By the disagreement of such, whose concurrence is necessary for the deed to stand; as the husband, where a feme covert is concerned, an infant, or person under duress, when those disabilities are removed, and the like.
(5) By the judgment or decree of a court, when it be proved, that the deed was obtained by fraud or force, or it is shown to be a forgery.
In any of these cases, the deed may be avoided, either in part or totally
Species of Deeds. We are next to consider the usual species of deeds, together with their respective incidents. We will examine the particulars of those, which from long practice are used in the alienation of real estate, usually denominated conveyances, as they convey lands and tenements from man to man. They are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses.
Division of Conveyances. Of conveyances by the common law, some are called original or primary conveyances, which are those, by means whereof the benefit or estate is created; others are derivative or secondary, whereby the benefit or estate is enlarged, restrained, transferred or extinguished.
Original Conveyances. Original conveyances are the following: 1. Feoffment.
2. Gift. 3. Grant.
5. Exchange. 6. Partition.
8. Confirmation. 9. Surrender.
1. Feoffment. This term is derived from the verb feoffare, to enfeoff, or infeudare, to give one a feud, and a feoffment is donatio feudi. It is the most ancient mode of conveyance, the most solemn and public, and hence the easiest proven. It is the gift of any corporeal hereditament to another. The feoffor is the giver, and the person enfeoffed, the feoffee. It is derived from the ancient feudal donation, and though it may be performed by the word, “enfeoff' or grant, yet the aptest word of feoffment is do or dedi. It is still governed by the same feudal rules. In pure feudal donations, the lord, from whom the feud moved, must expressly limit the continuance and quantity of the estate, which he confers, so if one grants by feoffment, and limits no estate, the grantee has barely an estate for life. For as the personal abilities of the feoffee were presumed to induce the feoffment, the feoffee's estate ought to be confined to his person, and subsist only for his life, unless the feoffor, by express provision in the creation of the estate, has given it a longer continuance.
Livery of Seisin. But by the mere words of the deed, the feoffment is by no means perfected, as there remains a material ceremony to be performed, called livery of seisin, without which the feoffee has but a mere estate at will. Livery of seisin is no other than the feudal investiture, or delivery of corporal possession of the land or tenement, which was held necessary to com: plete the donation, and an estate was then only perfect, when fit juris et seisinae conjunctio.
Investitures. Investitures were probably intended to show in conquered countries the actual possession of the lord, and that he did not grant a bare, litigious right, but a firm and peaceable possession. And at a time when writing was seldom practiced, a mere oral gift, at a distance from the land bestowed, was not likely to be remembered by bystanders, who had no interest in the grant. Afterwards they were retained by a public and notorious act, that the country might testify to the transfer of the estate. In all civilized nations, some wotoriety of this kind has ever been held requisite, in oriler to acquire and ascertain the property of lands.
Under Roman Law. In Roman law, plenum dominium could not subsist, unless a man had both the right and the corporal possession, which possession must be acquired with both an actual intention to possess, and an actual seisin or entry into the premises, or part of them, in the name of the whole.
Ecclesiastical Promotions. Even in ecclesiastical proinotions, where the freehold passes, corporal possession is still required to completely vest the property in the new proprietor, who by the canon law, acquires the jus ad rem or imperfect right by nomination, but not the jus in re or complete right, unless by corporal possession.
Corporal Possession Essential. So also, even in the descent of lands by our law, till one has made an actual corporal entry into the lands, for if he dies before entry, his heir shall not be entitled to take possession, but the heir of the person, who was last actually seised. It is not therefore a mere right to enter, but the actual entry, that makes a man complete owner, so as to transmit the inheritance to his own heirs, non jus, sed seisina facit stipitem.
Symbolical Delivery. Corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was in many cases, anciently allowed, by transferring something near at hand, in the presence of witnesses, which by agreement should represent the thing designed to be conveyed, the occupancy of which symbol was equivalent to the occupancy of the land itself. Among the Jews, as defined in the book of Ruth, the removal of a shoe and its delivery to a purchaser served as a testimony in Israel. Among the Goths and Swedes, contracts for the sale of land were made before witnesses, the buyer extending his cloak, while the seller cast a clod of the land into it, in order to give possession, and a staff was tendered from the vendor to the vendee. With our Saxon ancestors, the delivery of a turf was necessary to establish the conveyance of lands. To this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward, by the delivery of a rod, and then from the lord to the purchaser, by re-delivery of the same in the presence of a jury of tenants.
Conveyances in Writing Introduced. Conveyances in writing were the last improvement. The mere delivery of possession, either actual or symbolical, depending on the memory of witnesses, was likely to be forgotten and incapable of proof. The new necessities of commerce required means to be devised to charge and encumber estates, which were liable to a multitude of conditions, for the purposes of raising money. This could not be effected by a mere corporal transfer of the soil, which was calculated to convey an absolute, unlimited dominion. Written deeds were therefore introduced to specify and perpetuate the peculiar purposes of the party who conveyed, yet for many years, they were never made use of, but in company with the more notorious method of transfer, by delivery of corporal possession.
Livery of Seisin, where Necessary. Livery of seisin by common law is necessary to be made upon every grant of an estate of freehold in corporeal hereditaments, whether of inheritance or for life. In incorporeal hereditaments it could not be made, for they are not the object of the senses, and in leases for years, or other chattel interests, it is not necessary. In leases for years, an actual entry is necessary to vest the estate in the lessee, which is called his interest in the term, or interesse termini. This entry serves the purpose of notoriety, as well as livery of seisin from the grantor could have done. One reason why freeholds cannot be made to commence in futuro, is that they cannot be made but by livery in seisin, which must always take effect in praesenti, as it is an actual manual tradition of the land.
In Remainder Estates. On the creation of a freehold remainder, at the same time as a particular estate for years, at the common law, livery must be made to the particular tenant. But if such remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for