Page images


[blocks in formation]

Of the Circumstances necessary to a Deed.

2. lo sufficient Parties. | 43. Conveyances to charitable 6. Who may convey by Deed.

Uses. 8. The Queen.

46. 2o Consideration. 9. Corporations.

53. Different kinds of.
11. Infants.

57. 3. Writing.
15. Marriage Contracts by Female 60. A proper Stamp.

61. 4• Sufficient Words.
22. By Male Infants.

63. Formal Parts.
24. Infant Trustees may convey. 72. 5° Reading if required.
26. Idiots and Lunatics.

73. 6° Sealing and Signing. 29. Married Women.

80. 7• Delivery. 36. Persons attainted.

87. Delivery as an Escrow. 37. Who may be Grantees.

93. 8° Attestation by Witnesses.


W HEN it became usual to reduce all agreements

into writing, the following circumstances were deemed necessary to a deed: 1. Sufficient parties and a proper subject-matter. 2. A good and sufficient consideration. 3. Writing on paper or parchment duly stamped. 4. Words sufficient to specify the agreement, and bind the parties, legally and orderly set forth. 5. Reading, if desired. 6. Sealing and signing. 7. Delivery. 8. Attestation by witnesses.

2. The first requisite to a valid deed is, that there be persons able to contract and be contracted with, for the purposes intended by the deed; and also a

1, Sufficient Parties.

thing or subject-matter to be contracted for. So that in every deed there must necessarily be a grantor, a grantee, and a thing granted,

3. All those who have any estate, right, title, or interest whatever, either at law or in equity, in that which is the subject-matter of a deed, must necessarily be parties to it, otherwise their estates or interests will remain in them. And all those who are intended to take an immediate interest under a deed indented, must also be parties to it, by sealing it. But a person may take an estate in remainder, by a deed 1 Inst. 231 a. to which he is not a party. And when the person to

into 2- 673. whom a remainder is limited, enters on the land, he Faits, C.a. then becomes bound to perform the conditions con- Inst. 230 b. tained in the deed.

231 a. 4. In a deed poll, the person to whom the estate is granted, becomes in fact a party to it. Thus if A. Com. Dig.

Fait, D. 1. by deed poll agrees to pay a sum of money to B., B. shall maintain an action upon it, though he be a stranger, and did not seal it.

5. A power of attorney may be given in a deed 1 Inst. 52 b. poll to a stranger, to make livery of seisin. Though it was formerly held, that such a power could, in an indenture, be only given to one of the parties to it.

6. With respect to the persons who are capable of Who may conveying by deed, it may be laid down as a general Deed.

convey by rule, that all those who have attained the age of 21 years, are of sound mind and understanding, and not under the power of others, may be parties to, and bind themselves by deed.

7 Persons who are blind, deaf, or dumb, or who are both deaf and dumb, may convey by deed ; if it Perk. $ 25 appear that, potwithstanding those disabilities, they are capable of comprehending the nature and con

sequences of a deed, and can express their meaning

by writing or signs. The Queen,

8. The king can only grant and take by matter of record; but a queen consort is considered by the common law as a feme sole : she may therefore be party to any species of deed, without the king. By the statute 39 & 40 Geo. III. c. 88. S 8. a queen consort is enabled, during the joint lives of the king and such queen, by deed under her hand and seal, to grant, convey, alien, and dispose of any manors, &c. which shall be purchased by, or in trust for her; or which shall come to, or devolve upon, or vest in her, or any person or persons in trust for her, for any estate of inheritance or freehold, as fully and effectually as if she were sole and unmarried. By the ninth section the like power is given to all future queens, with a proviso that this act shall not enable any queen consort to dispose of any palace belonging to the king, in right of the Crown, vested in her for life: or to

make any grant but such as she might make if sole. Corpora 9. A corporation sole, as a bishop or parson, may

be a party to a deed; and although a corporation aggregate is said to be invisible, immortal, and

to exist only in supposition of law, yet such an i Inst. 94 8. artificial body is capable, by its creation, of being

party to a deed; and, in many cases, of acquiring or conveying away real property by deed. But a dean without his chapter, a mayor without his commonalty, or the master of a college without his fellows, cannot,

by executing a deed, bind the corporation. 10 Ren. 30 b. 10. All lay civil corporations may alien their lands 1 Sid. 162. as freely as individuals ; but ecclesiastical and eleemoi Ves, & B. 226.

synary corporations are restrained by statute 1 Eliz. c. 19. and 13 Eliz. c. 10. from every mode of aliena


tion, except that of leasing. In the exercise of this
power, they are placed under considerable restrictions
by the legislature, of which an account will be given Ch. 5.
hereafter. Incumbents of livings are however per-
mitted and enabled, by the statute, 17 Geo. III. c. 53.
and 21 Geo. III, c. 66. to raise money by mortgage for
repairing or building houses.

11. By the statute 55 Geo. III. c. 147, every parson, vicar, or other incumbent of any ecclesiastical benefice, is enabled to exchange parsonage houses and glebe lands, with the consent of the patron and bishop, for other houses and lands; and also to purchase lands to be annexed to such benefices as glebe land thereof; and by mortgage of their tithes, rents, and other profits, to raise money for such purchases.

12. All agreements and deeds made by infants, from Infants. which no apparent benefit can arise to them, are either absolutely void or voidable ; that is, the law allows the infant, when he comes of age, either to ratify and confirm, or else to avoid them. And where it is held that the deeds of infants are not void, but voidable, the meaning is, that non est factum cannot be pleaded ; because they have the form, though not the opera. 3 Mod. 310. tion of deeds: they are not therefore void on that account, without showing some special matter to render them so.

13. Whatever an infant is bound and compellable to do at law, the same shall bind him although he does it without suit: Therefore where an infant reconveyed lands, which had been mortgaged to his father, the mortgage money having been paid off, the conveyance was held good. · 14. A person conveyed the lands in question to Zouch v. W. Cooke and his heirs, by way of mortgage : Cooke !

Toke Parsons,

3 Burr. 1794. afterwards died, leaving J. L. Cooke, an infant, his

Vol. IV.


heir : the mortgage money was paid off, and the infant joined with his father's executor in conveying the mortgaged premises to a new mortgagee. It was resolved by the Court of King's Bench, that the infant was bound by this conveyance, because it could never operate to his prejudice, and he was compellable to convey.

15. By the statute 17 Geo. III. c. 26. it is enacted, that all contracts for the purchase of any annuity, with an infant, shall be utterly void ; any attempt to confirm the same, after such person shall

have attained the age of 21 years, notwithstanding Marriage 16. Contracts entered into by female infants, in Contracts by consideration of marriage, are more favoured than Female Infants. others. A female being capable of contracting mar

riage long before the age of twenty-one, she ought to be permitted to bind herself by the other parts of the contract; for as soon as the marriage is had, the prin. cipal contract is executed, and cannot be set aside; the estate and capacities of the parties are altered ; the children born of the marriage become interested. It has therefore been truly observed, that marriage contracts ought not to be hastily rescinded, because the interests of third persons would be affected.

17. Lord Macclesfield has said, that if a female Buckle, 2 P. : Wms. 243.

3. infant, on a marriage, with the consent of her guar

dians, should covenant, in consideration of a settlement, to convey an inheritance to her husband ; if this were done in consideration of a competent settlement, equity would execute the agreement, although no action would lie at law to recover

damages. Harvey v. Lord Hardwicke, after citing this passage, says Ashley, 3 Atk615. -" This is going a great way, as it related to the

inheritance of the wife ; but yet there are cases where

« PreviousContinue »