CHAPTER XVI.

OF DEEDS.

[IN treating of deeds we shall consider, first, what a deed is; secondly, its requisites; thirdly, how it may be avoided; lastly, the general rules which the law has laid down for its construction.

[I. First then, a deed is a writing sealed and delivered by the parties (a), and used in a great variety of different transactions; among which, one of the most important is the alienation of real estates. It is sometimes called a charter (b), carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin, factum, xar' oxy, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed (c). If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties,] and the deed so made is called an indenture, because each part used formerly to be cut or

(a) Co. Litt. 171 a.

(b) Co. Litt. by Harg. 9 b, n. (1.) (c) As to estoppel, vide Plowd. 434; Co. Litt. 352 a; 1 Saund. by Wms. 325 a, n. (4) and (c); 2 Saund. by Wms. 418; Hill v. Manchester Company, 2 Barn. & Adol. 544; Right v.

Bucknell, 2 Barn. & Adol. 278; Lainson v. Tremeere, 1 Ad. & El. 742; Bowman v. Taylor, 2 Ad. & El. 278; Whitton v. Peacock, 2 Bing. N. C. 411; and the other authorities cited in Smith's Leading Cases, vol. ii. p. 436, 460.

indented in acute angles (instar dentium, or like the teeth of a saw) on the top, or side, to tally or correspond with the other (d). Formerly too [when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists (e); and with us chirographa, or hand-writings (ƒ); the words cirographum or cyrographum, being usually that which was divided in making the indenture:] and in the indentures of a fine, this custom continued to be observed until the recent abolition of that species of conveyance. But for a long time past, the practice of cutting through any letters has in all other instances been disused; and even that of indenting saw-wise: the modern method being to cut the top of the parchment in a waving line. Neither this, however, nor any other method of indenting is in general necessary to the legal validity of the instrument (g). [When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor, is usually called the original, and the rest are counterparts; though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only, is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed (h).

(d) Vide Co. Litt. 47 b; Litt. s. 371. The history of the practice of indenting is given in Co. Litt. by Butl. 229 a, n. (1).

(e) Lyndew. 1. 1, t. 10, c. 1. (f) Mirror, c. 2, s. 27; Co. Litt. by Harg. 143 b, n. (4).

(g) Lord Coke says, that if it be not actually indented it is no indenture; Co. Litt. 143 b. But it will

certainly be a deed, if sealed and delivered as a deed. In certain cases, however, it is to be observed that a deed indented is made by statute essential to the validity of the transaction; vide Co. Litt. by Butl, 229 a, n. (2).

(h) Mirror, c. 2, s. 27; Litt. s.371, 372; Gardner v. Lachlan, 8 Sim. 123.

[II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with, for the purposes intended by the deed; and also a thing, or subject-matter to be contracted for; all which must be expressed by sufficient names (¿). So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.]

Secondly, [the deed must be written or printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed (k). Wood or stone may be more durable, and linen less liable to rasures, but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities; for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps imposed on it by the several statutes for the increase of the public revenue(); else it cannot be given in evidence.]

Thirdly, [the matter written must be legally and orderly set forth; that is, there must be words sufficient to specify the agreement and bind the parties; which sufficiency must be left to the courts of law to determine (m). For it is not absolutely necessary in law to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; and therefore such of them as are appropriate

(i) Co. Litt. 35 b.

(k) Co. Litt. 229 a; F. N. B. 122.

(1) The General Stamp Act now in force is the 55 Geo. 3, c. 184.

(m) Co. Litt. 225 a.

to deeds containing a conveyance of land, shall here be mentioned in their usual (n) order.

[1. The premises may be used to set forth the number and names of the parties, with their additions or titles,] and in the case of an indenture, the deed is always formally described as made inter partes, that is, as made between such an one of the one part, and such another, of the other part. As to which, this distinction deserves notice, that one named as party in an indenture, cannot covenant with a stranger, or person not named as party, nor can the latter take an estate by the deed, except by way of remainder; but, on the other hand, a stranger may covenant with one who is party, and bind himself by executing the deed (o). The premises [also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted.] With respect to the last, that is, the description of the thing granted, a conveyance of any land will suffice (as we have elsewhere seen (p)) to pass also the structures, or buildings thereon, as well as all mines below the surface; but a conveyance, by deed, of certain land, or of a certain house, even adding the words with the appurtenances, will not pass land not specified, although it may have been usually occupied together with the property which is specified; unless indeed it consist of the orchard, garden, or curtilage of a house, in which case it would pass under a grant of the house and its appurtenances, or even (as it should seem) under a grant of the house simply (7).

(n) Co. Litt 6 a.

(0) Co. Litt. 259 b; Salter v. Kidgley, Carth. 76; Storer v. Gordon, 3 M. & Sel. 322; Berkeley v. Hardy, 5 B. & Cress. 355.

(p) Supra, p. 157.

VOL. I.

G G

(4) See Co. Litt. by Harg. 5 b, n. (1); 2 Saund. by Wms. 401, n. (2). As to the word appurtenances, vide Co. Litt. 121 b; Hinchliffe v. Kinnoul, 5 Bing. N. C. 1, 25.

[2, 3. Next comes the habendum and tenendum (“ to have and to hold"). The office of the habendum is properly to determine what estate or interest is granted by the deed; though this may be performed, and sometimes is 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 for ever,” or vice versá; here A. has an estate-tail, and a fee simple expectant thereon (7). But had it been in the premises "to him and his heirs," habendum "to him for life," the habendum would be utterly void (s); for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away, or divested by it. The tenendum" and to hold," is now of very little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure by which the estate granted was to be holden; viz. "tenendum per servitium militare, in burgagio, in libero socagio, &c." But all these being now reduced to free and common socage, the tenure is never specified. Before the statute of Quia Emptores, 18 Edw. I. it was also sometimes used to denote the lord of whom the land should be holden; but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi (t); but as this expressed nothing more than the statute had already provided for, it gradually grew out of use.

4. Next follow the terms of stipulation, if any, upon which the grant is made; the first of which is the redden

(r) Co. Litt. 21 a; Thurman v. Cooper, 2 Roll. Rep. 19, 23; Cro. Jac. 476. Vide Goodtitle v. Gibbs, 5 B. & Cress. 709.

(s) Baldwin's case, 2 Rep. 23; Earl of Rutland's case, 8 Rep. 56. (t) Madox, Formul. passim.