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Of these there are four kinds : 1. Deeds or matters in pais, which are assurances transacted between two or more private persons, in the country; that is, according to the old law, upon the very spot or piece of land to be transferred. 2. Matters of record, or assurances transacted only in the King's public courts of record. 3. Assurances deriving their effect from special custom, obtaining in some particular places ; and relating only to some particular species of property. 4. A devise contained in a person's last will and testament, which does not take effect till after his death.
19. A deed is a writing on parchment or paper, Of a Deed. sealed and delivered, to prove and testify the agreement of the parties, whose deed it is, to the 1 Inst. 35 b.
Touch. 50. things therein contained. It is sometimes called a charter, charta, from its materials; but most usually, when applied to the transactions of private persons, it is called a deed; in Latin, factum; because it is the most solemn and authentic act that a man can perform, in the disposal of his property.
20. It is probable that every alienation of land was very soon accompanied with some written evidence; though, in the time of the Saxons, a legal transfer might be made of lands by certain ceremonies, without any charter or writing. Thus, Ingulphus in his History of the Abbey of Croyland, saysConferebantur multa prædia nudo verbo, absque scripto vel charta ; tantum cum domini gladio, galea, vel cornu, vel cratera ; et plurima tenementa cum calcari, cum strigili, cum arcu ; et nonulla cum sagitta. Deeds or charters were notwithstanding in use at that time. These were generally called gewrite or writings ; the particular deed, by which a free estate might be conveyed, was called landboc, libellus de terra, a do
Madox For nation or grant of land ; and the land thus granted mull. 283.
was called bockland.
21. Upon the introduction of the Norman customs, the solemn and public delivery of the possession, in imitation of the feudal investiture, became essentially necessary to the transfer of land ; and was alone sufficient for that purpose. But as written
charters constituted a much better species of evidence Dissert. c. l. of the agreement; a charter or deed, in imitation of 45.
the breve testatum of the feudal law, was usually prepared and executed, and delivered to the purchaser, at the same time with the land.
22. The increase of commerce and wealth having introduced a greater degree of refinement of manners, agreements and conveyances became more complex, which produced an universal practice of reducing them into writing : but still lands might have been transferred by a verbal contract only, provided it was attended with a solemn and public delivery of the possession, till the latter end of the reign of King
Charles II. Deed Poll. 23. Deeds are divided into two sorts; deeds poll, Lit. $ 370.2.
or cut in a straight line; and deeds indented. A deed poll is not, strictly speaking, an agreement between two persons; but a declaration of some one particular person, respecting an agreement made by him with some other person. Thus, a feoffment from A. to B. by deed poll, is not an agreement between A. and B., but rather a declaration by A. addressed to all mankind, informing them that he thereby gives and enfeoffs B. of certain lands therein described. It was formerly called charta de una parte, and usually began thus, Sciant præsentes et futuri quod ego, A. &c.; and now begins in these words, Know all men by these presents that I, A. B. have given, granted, and
enfeoffed, and by these presents do give, grant, and enfeoff, &c. 24. An indenture is a mutual agreement between Indenture,
Lit. 370. two or more persons, whereof each party has usually a copy. Formerly, when deeds were more concise than they are at present, it was usual to write both parts on the same skin of parchment, with some words or letters of the alphabet written between them, through which the parchment was cut in acute angles, instar dentium, from which they acquired the name of indentures, or deeds indented, in such a manner as to leave half the word on one part, and half on the other.
25. Lord Coke says, to constitute an indenture it 1 Inst. 143 b. is absolutely necessary that the paper or parchment, on which the deed is written, be cut instar dentium on the top or side. And in Stile's case, where a 5 Rep. 20. deed was produced as an indenture, which was not indented, beginning with the words hæc indentura, it was adjudged that it was not an indenture, although it was in two parts, for the words of a deed cannot make it indented; but to the making of an indenture there ought to be a manual act of indenting the parchment or paper.
26. The practice has long been to cut the first skin of parchment on which an indenture is written in an undulating line. And it is said by Sir H. Gwillim, that if only the form of indenting the parch- 4 Bac. Ab. ment or paper be wanting, this is not material; for it might even be done in court. No exception is therefore now taken on such a trifling omission.
27. In the case of an indenture, there ought regu. larly to be as many copies of it, as there are parties : and when the several parts are interchangeably executed by the several parties, that part or copy
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. But a counEyton v.
terpart of a deed has been admitted to be sufficient Eyton, Prec. in Cha. evidence of such deed : and a conveyance decreed 116. accordingly. Finch's Law,
28. If there happens to be any variance between the indenture and counterpart, it shall be taken as the deed of the grantor is, and the other shall be intended
only the misprision of the writer. A Deed
29. All deeds, whether deriving their effect from transfers the Estate with the common law, or the statute of uses, do, immedisent of the ately upon their execution by the grantors, devest Grantee. estate out of them, and put it in the party to whom Gorton's
the conveyance is made, though in his absence, and Case, infra, c. 12. without his notice, till some disagreement to such
estate appears. Thompson 30. This doctrine is founded on the principle, v. Leach, 2 Vent. 201. that the assent of the party who takes, is implied in 3 Mod. 296. all conveyances ; 1. Because there is a strong intend
ment in law, that it is for a person's benefit to take : and no man can be supposed to be unwilling to that which is for his advantage. 2. Because it would seem incongruous and absurd, that when a convey. ance is completely executed on the grantor's part, the estate should continue in him. 3. But the principal reason why the law will not suffer the operation of a conveyance to be in suspence, and to expect the agreement of the party to whom it was made, is to
prevent the uncertainty of the freehold. Article of
31. It is a common practice for persons to enter Agreement.
into an article of agreement, preparatory to the execution of a formal deed, whereby it is stipulated that one of the parties shall convey to the other certain
lands, or release his right to them, or exccute some other disposition of them. An article is therefore considered as a memorandum or minute of an agreement to make some future disposition or modification of real property ; and such an instrument will create a trust or equitable estate, of which a specific per- Tit. 12. c. 1. formance will be decreed in Chancery.
32. Articles are usually entered into for the purchase and sale of lands; for the taking and granting of leases; for making mortgages, and settlements on marriage.