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and not contradictory, of any thing contained in a deed, for whatever is avowed therein cannot be denied by the grantor.

It has been held, that where the only consideration expressed in a deed is, that a grantee shall support the grantor, or some other person, or do some act, to enforce which the agreement must be in writing, by law, the same is void, because the grantee is not bound to perform. [16 Johnson, 47.] Such a consideration is destitute of substance, and cannot support a deed.

It must be accepted in fact, or by construction. To give effect to a delivery, there must be an acceptance, or something equivalent to one, in a case of bargain and sale. The mere passing of a deed to another who refuses to take it, does not complete the transfer; until he accepts, the transaction is inchoate and imperfect. Where the delivery is the mandate of a decree, or the condition of a previous contract, the rule bends to the exigency of the case; but in those cases, more regard is had to the personal liability of parties and their obligation to perform their covenants, than to what constitutes a valid transfer of the land which the deed in question purports to convey. A tender of a deed duly executed, and which is either witnessed or acknowledged, and delivered to a third person, for the benefit of the grantee, will, in some special cases, it is presumed, invest him with the title. In such case, however, such deposit must be after refusal by the grantee, and with his knowledge, or by his permission, direction or consent.

What constitutes a delivery must depend, in many cases, upon circumstances and contingencies which cannot be here enumerated. It has been held, that a formal delivery is not necessary, if there be acts evincing an intent to deliver. [1 J. C. 250.] But where a deed was executed and acknowledged, but retained by the grantor as security for the consideration money, although done by the direction and at the

request of the grantee, it was held that it was no conveyance, and that the title remained in the grantor. But if a deed be executed and acknowledged and delivered to a third person, by consent of both parties, until some condition precedent is performed by the grantee, and such condition shall be subsequently performed, and the grantee afterward receive the deed; in such case the deed will be valid, and the title of the grantee will relate back to the time when the deed was made an escrow. [18 John, 544.]

Fraud receives no quarter in the law, and it is not protected by a seal. It is a vice whose turpitude so far enters into the essence of any contract, that the whole instrument is supposed to be contaminated therewith. It is, however, a question of fact, where fraud is alledged; and whenever it is put in issue in courts of justice, it is the province of a jury to determine it. [8 Cowan, 406.]

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A conveyance of land subject to the condition of being defeated by a payment of a specified sum, within a limited time, is termed a mortgage. This species of written instruments is much in use, and is suggested by the wants and convenience of mankind. The conditions of a mortgage are usually inserted in its body, but the defeasance may be contained in a separate instrument. It should, however, be executed in due form, for recording in the same office, with the conveyance. The practice of separating the defeasance from the conveyance is liable to accidents and abuse, is productive of fraud, and should be discouraged.

The character of any conveyance is determined by the clear and certain intention of the parties; and any agreement in a deed, or in a separate instrument, showing that the parties intended that the conveyance should operate as a security for the re-payment of money, is, in effect, a mortgage. A deed, although absolute in its terms, may be proved by parol to have been intended only as a mortgage. And if a deed be once a mortgage, its character cannot be afterwards

changed. The maxim is, "once a mortgage, always a mortgage."

A power of sale is usually inserted in a mortgage; yet, such power is not requisite to its validity. It is a matter of convenience in most cases, however, and enables the mortgagee to effect a collection of his debt with greater facility and ease.

The execution and delivery of mortgages are governed by the same rules which regulate the execution of deeds. And as an instrument under seal cannot be revoked by another of lesser authority in law, it follows that instruments for the cancelation of mortgages should be signed, sealed and delivered with the same formality.

Although a mortgage is a species of deed, conveying a qualified interest in land, it is proper to remark that the freehold is adjudged to remain in the mortgagor, and that the mortgagee acquires but a chattel interest in the premises. It is termed a lien, and not a fee. But as the mortgagor may be disseized and dispossessed by a foreclosure, the same formality is required in the execution of a mortgage as in an absolute conveyance.

The legal operation of a deed is to pass the incident as well as the principal, although the latter only be mentioned; and this effect cannot be avoided, without a reservation therein, or in a contemporaneous instrument. Growing crops, for instance, are an incident which pass with land, unless they are reserved. They are, however, not an incident, if they have been previously sold. All prior and contemporaneous negotiations are merged in a deed. This should be understood by every land dealer. Whatever stipulations and reservations the parties agree to, prior to the execution of a deed, become nugatory, if no mention thereof be made in the conveyance, or some contemporaneous writing. The courts hold that a deed must receive its construction as to what it conveys, from its language and matter.

In construing deeds, that which is most material and certain prevails over that which is less so. This very plain. and evident proposition lies at the bottom of a multitude of decisions, settling the law in respect to boundaries. Thus, when a deed defines a line by a certain number of chains and links to the bank of a river, a spring, or a marked tree, and it is found that the chains do not agree with the monuments, the latter, being most certain, control. Hence it is adjudged that courses and distances shall yield to natural and ascertained objects, such as a river, a stream, a spring, or a marked tree. [5 Cowan's R., 37.]

The interest in land which passes to the grantee is qualified by the covenants contained in a deed. Thus, if one be in possession of land without title, and convey to another by quit claim, the latter acquires but a possessory title to the premises; but if the deed contain covenants of warranty it is otherwise, for it would operate as an estoppel upon the grantor, if he should seek to regain possession.

Deeds are expounded by the courts so as to give them effect according to the intention of the parties, where that intention can be determined from the face of the instrument; and all uncertainties are taken in favor of the grantee in possession, although no covenants will be taken by implication or inference.

XV. THE PROOF AND ACKNOWLEDGMENT OF DEEDS AND MORTGAGES IN NEW-YORK.

In order to entitle any conveyance of land to be recorded by any County Clerk, the statute provides that it shall be acknowledged by the party or parties executing the same, or proved by a subscribing witness thereto, before any of the following officers, viz:

1. If acknowledged or proved within this State, the Chancellor, Justices of the Supreme Court, Circuit Judges, Supreme Court Commissioners, Judges of County Courts, Mayors and

Recorders of cities, Commissioners of Deeds in cities, and Justices of the Peace in towns; but no Judge, Commissioner of Deeds, or Justice of the Peace, shall take any acknowledgment out of the county or city, for which he was appointed.

2. If acknowledged or proved out of this State, and within the United States, the Chief and Associate Justices of the Supreme Court of the United States, District Judges of the United States, the Judges or Justices of the Supreme or Superior or Circuit Court of any State or Territory within the United States, and the Chief Judge, or any Associate Judge of the Circuit Court of the United States in the District of Columbia; but no proof or acknowledgment taken by any such officer shall entitle a conveyance to be recorded, unless taken within some place or territory to which the jurisdiction of the court to which he belongs shall extend.

3. Every acknowledgment, or proof of a deed or mortgage made or taken before the Mayor of either of the cities of Philadelphia or Baltimore, or before any Consul of the United States, resident in any foreign port or country, or before a Judge in the highest court in Upper Canada or Lower Canada, and certified by them respectively, shall be as valid and effectual as if taken before one of the Justices of the Supreme Court of this State. [1 R. S., 747, Sec. 4.]

The statute further provides "that if the party or parties executing such conveyance shall be or reside in any State or Kingdom in Europe, or in North or South America, the same may be acknowledged before any Minister Plenipotentiary, or any Minister Extraordinary, or any Charge d'Affaires of the United States resident, and accredited within such State or Kingdom. If such parties be or reside in France, such conveyance may be acknowledged or proved before the Consul of the United States, appointed to reside at Paris; and if such parties be or reside in Russia, such conveyance may be acknowledged or proved before the Consul of the United States, appointed to reşide at St. Petersburgh. [Id., Sec. 5.] If

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