often changed; and then it was held for law, that a Tit. 31. c. 2. deed bearing date before the limited time of prescription, was not pleadable. But it became customary, about the time of Edward II., to insert the date in all deeds, which has been practised ever since. 4. It is not, however, absolutely necessary that a deed should be dated; for, as has been already c. 2. § 80. stated, if a deed has no date, or bears an impossible date, it will take effect from the time of its delivery. 5. Deeds take place according to the priority of their dates, or times of delivery; it being a maxim of the common law, qui prior est tempore, potior est in jure. But it has been shown that there are many Tit 12. c. 3. cases where a purchaser or mortgagee may, by ob- $33. taining an assignment of a prior legal estate, obtain § 27. a preference over a person claiming under a prior deed and in consequence of the register acts, a deed duly registered will take place of a prior deed infra, c. 28. not registered. Tit 15. c. 5. 1 Burr. 106. 6. Where two deeds bear the same date, and ma- Taylor v. Horde, nifestly contain but one agreement, that deed shall be presumed to be first executed, which will best support the clear intention of the parties. 7. With respect to the parties to a deed, they are Parties. either active or passive. Those who grant, demise, or release, are the active parties, and are called the grantors, lessors, and releasors; those to whom lands are granted, demised, or released, are the passive parties, and called the grantees, lessees, or releasees, Touch. 81. 8. If several persons join in a deed, some of whom 1 Inst. 45 a. are capable of conveying or taking, and others incapable, it shall enure and be construed as the deed of those only who are capable of conveying, and to those only who are capable of taking; for the incapacity of some of the parties will not render it invalid, as to those who are capable. 9. Although a tenant for life can only grant away his own life estate, yet if he is joined in the deed by the remainder-man or reversioner, they may together convey the inheritance; for each passes his own estate. 10. The parties to a deed ought to be described by their proper christian and sirnames, their rank, profession, and place of residence. But mistakes in the description of the parties will not, unless very gross, make a deed void; for if the description, however imperfect, is sufficient to distinguish the person described from all others, it will be good.-Nihil constat error nominis, cum de corpore constat. 11. Persons who have several christian names, as Thomas Henry, &c., frequently use only the first name: and in that case, if they are described in a deed by the first name only, it will be good. For this, there is an authority in Bracton, who, speaking of legal proceedings, in which the description of the parties should be particularly accurate, says-Si quis binominis fuerit, sive in nomine proprio, sive in cognomine, illud nomen tenendum erit, quo solet frequentius appellari. 12. If lands be granted to Robert Earl of Pembroke, when his name is Henry; or to George Bishop of Norwich, when his name is John; it will be good. For in these and the like cases, no doubt or uncertainty can arise; as there can be but one person having those dignities. 13. It is said by Lord Holt, that a grant to a duke's eldest son, by the name of marquis; or to the eldest son of a marquis by the name of earl, et sic de similibus; would be good: because of the common curtesy of England; and their places in heraldry. 14. A wife is a good name of purchase, without a 1 Inst. 3 a. christian name; and so it is if a christian name be added, and mistaken; for utile per inutile non vitiatur. But if an ordinary person grants by his sirname only, without any name of baptism; or by his name of baptism, without any sirname; in these and the like cases, the deed will be void for uncertainty: unless there be some other matter in the deed to help it; or something done after to supply the defect. 15. A name acquired by reputation only, will be Idem. considered as a sufficient description; for all sirnames were originally acquired by reputation. Hence it has been often held, that a bastard is sufficiently described by the name by which he has been usually known. 16. A person to whom an estate in remainder is Idem. 3 limited, may be described in a deed, without mentioning either his christian or sirname; as if a remainder is limited, primogenito filio, or seniori puero, of J. S., it will be good. And in the usual limitation of remainders to persons unborn, they are necessarily described in this manner. 17. The word issue is a good description in a deed, Idem. and is equivalent to the words child or children: therefore a remainder to the issue, or issue of the body of A., is good. 18. In consequence of the maxim, that nemo est hæres viventis, an immediate grant to the heirs of A. is void. But a remainder may be limited to the heirs of A.; which will be good, in case A. dies during the continuance of the particular estate, or at the instant of its determination. And a grant to the heirs of a Tit. 16. c. 1. $25. 2 Roll. Ab. 417. pl. 6. Roe v. 630. Waker v. Snow, person who is dead, is good; for in that case the word heirs is a sufficient description of the person intended to take. 19. A limitation in remainder to the right heirs of A. and B., will give such heirs, if their parents die during the particular estate, an estate in common. But a limitation to the heirs of husband and wife will be considered as a limitation to the heirs of them both, according to that relation; that is, to the children of both. 20. The word heir, in the singular number, is a infra, c. 22. sufficient description, by which an estate may be limited. 1 Inst. 24 b. n. 3. Beckford v. Pendarvis, 5 Bro. Parl. Ca. 93. 21. Lord Coke says, if a remainder is limited to the heirs female of the body of A., and A. dies leaving a son and a daughter, the daughter can take nothing by this limitation, because she is not heir: for the person claiming under such a description must fully answer it; and consequently, a person having only half the description will be excluded. Now the description consists of two parts; one requiring that the donee should be heir; the other, that the donee should be a female: and in the case put by Lord Coke, the daughter is not heir, she having a brother. This doctrine has been controverted; it is, however, 1 Inst. 164 a. very ably defended by Mr. Hargrave in his note to Goodtitle v. this passage. But in a subsequent note he has menBurtenshaw, tioned a case in which the Court of Exchequer refused to apply the rule to a marriage settlement: and held, that a limitation to the heirs female of the body of the settlor was good, though the person answering that description was not also heir general. n. Fearne's Cont. Rem. 6th ed. App. No. 1. Fanshaw's Moo. 235. 22. In conveyances by or to corporations, the description of the corporation must be such as to distinguish it from all other corporations. But there is no case where a grant by a corporation has been held void, on account of a variance in any of these four circumstances; namely, addition, interposition, omission, or commutation; if they retain the four first principles of substance, viz. name of persons, of house, foundations, or dedications, places known before the foundation, in which the house is situated. 23. The recital is a narrative of such facts, deeds, Recital. or agreements, as are necessary to explain the grantor's title, and the motives and reasons upon which the deed is founded. Although recitals are not absolutely necessary, yet they are now usually inserted in all deeds, for the purpose of showing the origin and derivation of the title, or of stating such facts as are connected with, or relate to, the subjectmatter of the deed. Casón, Moody, 24. A mis-recital of a former grant will not in- Withes v. validate a deed. As where a person made a lease, Hob. 128. habendum from the feast of the Purification: after- Lewen v. wards reciting the lease as granted from the feast of 3 Leon. 135. the Annunciation, he granted the reversion: it was held good. In a subsequent case it was held, that a mis-recital of the estate of the grantor in the land, or of the date of the deed by which he acquired the land, did not invalidate a deed. Cro. Ja. 127. Jennan v. Orchard, 25. It is laid down by Lord Coke, that a recital 1 Inst. 352 b. does not conclude, because it is no direct affirmation. But it has been since held, that though a person shall not be estopped by a general recital; yet he may be estopped by the recital of a particular fact. Wright, 26. Thus, where it was recited in the condition of Shelley v. a bond, that the obligor had received divers sums of Willes R.9. money for the obligee, which he had not brought to account, but acknowledged that a balance was due to the obligee. It was held, that the obligor was |