What convey.

ance must be by inden ure, andnot by deed-poil.

be expounded according to the deed delivered by the conufee. 2 And. 58.

If an indenture be not made between parties, it is in nature of a deedpoll, and thereby the party may covenant with a stranger. 2 Lev. 74. i Lutw. 305, 535:

A. by a deed-poll covenanted with B. to fell him land for 200l. and B. by the fame deed covenanted with A. to pay the money. B fealed and delivered it as his deed to A. and fo did A. to B. This was adjudged the deed of both A. and B. and he that has it may have covenant againft the other on breach.

By flat. 27 H. 8. c. 16. No manors, lands, tenements or other here. ditaments, fhall pafs, alter or change from one to another, whereby any eftate of inheritance or freehold fhall be made or take effect in any per. fon or perfons, or any use thereof to be made by reafon only of any bar. gain and fale thereof, except that the fame bargain and fale be made by writing indented, fealed and inrolled.

Vide infra, Tit. Bargain and Sale.

And by fat. 13 Eliz c. 7. A bargain and fale of a bankrupt's estate must be by deed indented and inrolled.

And by flat. 43 Eliz. c. 11. Where the queen or her fucceffors is or fhall be lord or owner of the freehold of the foil of waste or common (propofed by this act to be drained and recovered in the ifle of Ely, and the counties of Cambridge, Huntingdon, Northampton, Lincoln, Norfolk, Suffolk, Suffex, Effex, Kent, and County Palatine of Durham) the mot part of the commoners in fuch foil may contract, bargain, affign and ju forth part of their common therein, to any perfons who will undertake the draining; which fhall bind all the faid commoners, their heirs, executors or affigns, and all others that fhall hereafter, by reason of any their refidence, claim any common of pafture in the faid waftes or com mon grounds whereof the foil belongs to the queen, of and for all their intereft or claim of common therein; To hold according to the true intent and effect of fuch contract, bargain, affignment and conveyances, by writing indented, fealed and delivered by the moft part of fuch commoners, as fhall be made between the most part of fuch commoners and fuch undertakers: But fhall not in any fort be of any effect or validity against the queen, her heirs, fucceffors or affigns, or their eftates in the foil thereof, except fuch conveyances be by writing indented in parchment, and one part thereof under the hands and feals of moft part of the commoners fo contracting the same, certified into chancery, if the walle or foils fhall be of the poffeffions of the queen's crown of England; and except her majefty's royal confent be obtained thereunto, and fignified by and under the queen's privy feal, or great fel, and inrolled in the queen's faid court of chancery; and after fuch affent fo had, fignified and inrolled, then the fame contracts and covenants fhall be good and available to all and every fuch undertakers, their heirs and affigns, against the queen's heirs and fucceffors, according to the provisions, agreements and covenants fo affented unto by the queen, her heirs and fucceffors; and where they are of the poffeffion of the duchy of Lancafier, then the faid contract, bargain, affignment of or from the queen, fhall not be of any effect or validity againft the queen, her heirs, fucceffors and affigns; except fuch contract and bargain touching the premiffes, and fuch affignment and fetting forth of such part to the faid

undertakers

undertakers to hold in feveralty, be by writing indented in parchment, fealed and delivered by the faid commoners, or the most part of them, and the faid undertakers, and one part thereof, certified under the hands and feals of moft part of the commoners, into the queen's court of the duchy of Lancaster for the time being, and her majesty's royal confent under the feal of the faid duchy obtained thereunto, and there inrolled in that court which confent royal being obtained for the foil of fuch wafte, being of the poffeffions of the crown, and under the feal of the faid duchy, of the queen's foil of fuch waste as are of thofe poffeffions, the faid undertakers, and their heirs and affigns, fhall and may enjoy in feveralty the foil of fo much wafte and common as was fo contracted for, affigned and fet forth by the most part of the queen's commiffioners, in fuch fort and quality as the faid undertakers fhall hold and enjoy the intereft of common, to all intents and purposes.

Provided always, that this act, nor any thing therein contained, fhall not extend to the impairing, diminishing, letting, taking away or extinguishing of the intereft of commoners, or any of them, or of the lords or owners of the foil, of, in or to any part of the refidue of the wafte of commons, which is not or fhall not be fet forth or affigned to the undertakers, nor to any franchises or liberties, or waif, tray, leet, law. day, nor other liberties to be used or taken in the part fo to the faid undertakers affigned; but that as well the commoners and lords and owners of that foil, fhall and may enjoy their commons in the refidue thereof; and the queen's majefly, her heirs and fucceffors, and the lords and owners, fhall and may have and enjoy fuch liberties and franchifes in fuch their part as heretofore was lawfully ufed, and as they or any of them fhould or might have done, if this act, or fuch contract, bargain and affignment, had never been.

Provided always, that this act, or any thing therein contained, shall not extend either to any bargain, fale, agreement, grant, conveyance or affurance, or to the inning, draining or laying dry, of any commons, marshes or furrounded grounds, whereby or by means whereof any of the havens or ports of the realm may be in any foit annoyed, impaired or hindered, nor to any grants within eight miles of Yarmouth, or fix miles of Lynn in Norfolk.

But contracts, &c. made concerning the waftes and commons of which the foil belongs to fubjects; are not required to be by deed indented. The claufe of the act as to them is as follows:

It is enacted, that the lord or lords, as well bodies politic or corpofate, as any other perfon or perfons whatfoever, of all and every the wafte and commons as aforefaid, and the most of the commoners for their particular commons, and likewife the owners, and fuch as have or fhall have interest in any feveral furrounded grounds lying within or near the fame, may contract or bargain for part of fuch commons, waftes and feverals aforefaid, with fuch perfon and perfons which will undertake the draining and keeping dry perpetually the feveral waftes or commons of that quality; which contract, and bargain and conveyances thereupon made, fhall be good and available in law to all conftructions against the faid lords of the faid foil, and owners of feverals, and their heirs, fucceffors and affigns, and all the commoners, and fuch as fhall or might have common or intereft there afterwards, according to the contracts, covenants, provifions and agreements in thofe conveyances to be specified,

and

and for fo much of fuch commons, wafles or severals, as shall be fo con tracted or conveyed; to hold and enjoy in feveralty to fuch perfon or perfons, his or their affignee or affignces, as fhall or have undertaken the fame, in fuch manner and form as his or their eftates and intereft are or fhall be, by or upon fuch contracts or agreements, by fuch convey. ances limited or appointed.

There are three kinds of perfons who may make leafes for three lives, &c. but they must be by deed indented, and not by deed-poll, viz. (1) Any person seised of an ellate-tail in his own right. (2) Any perfon feifed of an eftate in fee-fimple in the right of his church. (3) Auy husband and wife feifed of any eftate of inheritance in fee-fimple or fee-tail in the right of his wife, or jointly with his wife before the coverture or after, viz. the tenant in tail by deed to bind his iffue in tail, but not the reverfion or remainder; the bishop, &c. by deed without the dean and chapter, to bind his fucceffors; the hufband and wife by deed to bind the wife and her and their heirs; and these are made good by the statute of 32 H. 8. c. 26. Vide fupra,

(B) Of the various Kinds of Deeds (a) with Relation to their Ufe and Effia.

ΤΗ

HERE are fome deeds which concern the public, and others which concern and are made between particular perfons. Shep Epitome, 397.

And

(a) Deeds, being the finews and ftrength of mens inheritances and eftares, prima facie appertain to him whofe poteffion is derived from them, and are as incidents or concomitants to the land, which go and pafs with it. And therefore if a man feifed of lands in fee in potieffion or reverfon, to which there belongs charters, deeds, and evidences, fome with warranty and fome without, make a feoffment in fe without warranty, the purchafer fhall have all the charters, deeds, and evidences, ratione terra, as incidert to the land, although they be not granted by the deed. And this is to the end that he may thereby be enabled to defend the land, he having 10 warranty to re over in value; and the feoffor, not being bound to warran”, has no ufe for them.

So if there be a warranty in the deed, vet, if the feoffor grant the deed, the purchafor shall nevertheless have them.

And if the thing that paffes lie in grant, as common, rent, &c. there, although the feller or grantor de not grant the charters that concen the land, and although there be a warranty in the deed, the purchaser fhall have all the deeds that concern the land, for the grant is not good without the deeds.

But if a man be feifed of land in poffeffion or reverfion, and has chartes thereto belonging, fome containing warranty and fome not, and he make a feoffment of the land, and warrant it to the feoffee and his heirs, fo that he is bound to render in value, and there are no words of grant of the charters in the deed; in this cafe, in as much as the defence of the title is at the feoffor's peril, he fhall keep all the principal evidences that are material for the maintenance of the tile of the land. As feoffments, releafes, confir mations, wills in writing, by which the title to the land is devifed, and deeds that comprehend warranty, whereof he may take advantage, and fuch as may serve him to deraign the warranty paramount. Thus if A. enfeoff B. with warranty, and B. enfeoff C. with warranty, though C. may vouch A, upon the firft warranty, yet he fhall not have the firft deed; but

And of these fome are abfolute, and fome conditional: fome concern the realty, fome the perfonalty, and fome are mixed. Ibid.

Some deeds contain matter of grant, or gift; amongst which feoffments, gifts, bargains and fales, grants and leafes, are the chief. Ibid. And fome of them contain matter of discharge; as releafes, acquit tances, defeafences, and fuch like. Ibid.

And fome of them contain other matter; as confirmations, and such like. Ibid.

Or, as they are otherwife diftinguished: Some of them are conflitutive and making, and fome are remiffory or liberatory. Some of the fir fort are creating, i. e. fuch whereby an eltate, property or obligation, not having eflence before, is newly raifed and created; as the first grant of a rent, common, way, &c. estate-tail, for life, years, &c. and iome of them are conveying, i. e. fuch by which eftates, properties, and the like, being already created, are conveyed to others; as feoffments, bargains and fules, grants over, or affignments, furrenders, and the like.

if in this cafe a franger have the deeds, the feoffee may recover them against him. So if A. enfeoff B. with warranty, and B. enfeoff C. by the word dedi (which implies a warranty for life of the donor) B. fall keep the charters during his life, but his heir shall not keep them afterwards.

If a lord come to land by efcheat he fhall have all the charters of land fo efcheated to him.

If one make a feoffment to two, and the heirs of one of them, and deliver all the charters and deed to him that hath the fee-fimple of the land, and he happen to die before his companion, his heir fhall keep all the reit of his evidences, except the deed of feoffment which the furviving jointenant is to have.

If two jointenants be by a defeafable title, and a releafe is made to them, and one of them die, now the furvivor fhall have the releafe, and all the reft of the writings.

If a feoffment be made to two without deed, and the writings be delivered to one of them, the other fhall not have them from him. So if one releafe to his two joint-feoffees and deliver the deed to one, the other though he furv ve fhall not have it, for in this cafe melior eft conditio poffidentis.

If I releafe to two difseisors, and deliver the deed to one, the other furviving fhall have it. If the diffeifee releafe to the diffeifor, and he make a fffment of the .and, the feoffee fhall have the releafe. But if a feoffment be made to two without deed, and the evidences that do concern the land are delivered to one, the other shall not have them.

If a leafe for life be made by deed, the remainder over in fee, the deed appertains to the leffce during his life, and not to him in remainder.

And he that has the greater eftate is intitled to the deeds. Therefore if a man has a rent in fee and grants it over for term of life, the deed belongs to the grantor, and not to the grantee.

But where a feotiment is made with warranty, the feoffee fhall have fuch deeds as are neceffary only; and which concern the poffeffion and not the title; as exemplifications of records, confiats, tranfcripts of fines, court❤ rolls, pedigrees, rentals, furveys, accounts, and the like.

But in all cafes of conveyances to ufes, the poffeffion of the deeds appertains to the feoffee or covenantee, and not to the celui que ufe; the reafon for which is faid to be, that it was fo at common law; and the ceftui que ufe is in by act of law, in like manner as tenant in dower, and by ftatute ftaple or merchant, and the ftatute of ufes though it transfers the legal eftate to the ceftui que uf, does not transfer the deeds. Vide Dyer 277. a. pl. 58. 2 Roll. Abr. Tit. Z. pl. 3 Cro. Fac. 217. pl. 5. Noy 145. Sed. vid. Co. Litt. 13 ed. fol. 6. note 4. where it is faid that this is a questionable point. Et videi Co. 1, 2, 3. 11 Co. 50. Roll. Abr. Tit. Fait. (Z) Moore 30S. 5 Co. 75. Fitzh. Abr. Tit. Monfrans de Droit 58.

Thofe

Thofe of the laft fort are fuch as defcribe and teftify fome precedent contract for a duty or fact to be paid, performed or done, releafed or difcharged; of which fort are all acquittances, releafes, and other fuch like matters of discharge. Ibid.

But there may be and are divers other kinds of deeds befides thofe which are named before; for every agreement put in writing, fealed and delivered, becomes a deed. And attornments, exchanges, furrenders, par titions, authorities, commiffions, licences, revocations, and the like, are ufually made, given, done and granted by deed; and there are divers other inftruments, concerning merchants, and other affairs; if therefore any of these be done by deed, fuch a deed is for the most part subject to the rules refpecting deeds herein laid down. Ibid.

Although feoffients, gifts, bargains, leafes, attornments, exchanges, furrenders, and fuch like, may in divers cafes be as well made and done without as with a deed; (a) yet if a man will make his claim to any thing given or granted by fuch feoffments, gifts, &c. by deed, fuch deed must be a good and perfect deed. "Itid.

Conveyances are either, (1) according to the course of the common law; (2) according to, or by force or power of acts of parliament; or (3) according to cuflom.

Firft, According to the courfe of the common law, there are two kinds of conveyances; 1. By matter of record; 2. By matter in pais.

I. By matter of record, they are either, (1) by fine; (2) by common recovery: or (2) by deed inrolled.

1. Fines in general are of two kinds; (1) at common law; or (2) with proclamations: And their effs are, (1) in relation to the barring pri vies, or conveyance of eftates; or (2) in relation to firangers, non-claim.

2. Common recoveries as to their kinds, are either with fingle, double or treble voucher: And as to their effects, they are in relation to transferring or barring eftates-tail, remainders, reverfions, &c.

3. Deeds inrolled are of three kinds; (1) deeds inrolled by special cuf tom, as in London; (2) deeds inrolled at common law; or (3) deeds inrolled in purfuance of certain ftatutes.

11. Conveyances by matter in pais, are either, (1) without deed; or, (2) by or with deed.

Conveyances in pais without deed, are either, (1) Of chattels, as leafes or extents of land, which may be either by grant or affignment by pa rol, or by exchange (b), (but as to the laft, quære); or (2) Of freeholds of lands by livery, and conveyances in pais with or by deed, which, with relation to the creating or paffing eftates, are called tharters, grants or feofments.

Deeds, with relation to their ufe, are either, (1) fuch as have their efficacy without the adjunct of fome other ceremony; or (2) such as require another ceremony to be joined with them to give them effect.

I. As to the first they are of three kinds, (1) Grants, (2) Releajes, and (3) Confirmations.

As to grants; there are many things that are of an incorporeal nature ; as advowjons, tithes, liberties, commons, &c. that cannot país from one

(a) Vid. fupra, fol. 175. note c. as to ftat. 29 Car. 2. cap. 3. which alters the common law in this refpect.

() Vid. Supy a 175. n. (c) as to ftatute 29 Car. 2. cap. 3. which alters the cominion law in this refpect.

to