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1 Inst. 6 a.

Formal Parts.

1 Inst. 6 a.

and to bind the parties; which sufficiency must be left to the law to determine.

62. Ancient deeds were extremely short, and suited to the simplicity of the times; but when deeds grew more complicated, it became customary to divide them into several formal parts: and although it is not absolutely necessary that a deed should be divided in this manner, provided there are sufficient words to show the meaning and intention of the parties; yet as these formal and orderly parts are calculated to convey that meaning in the clearest, most distinct, and 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.

63. These formal and orderly parts are, 1. The premises. 2. The habendum. S. The tenendum. 4. The reddendum. 5. The condition. 6. The warranty. 7. The covenants: and 8. The conclusion,

64. The premises of a deed contain all that part which precedes the habendum, that is, the date, the parties names and descriptions, the recital, the consideration, and receipt thereof, the grant, the description of the things granted, and the exception,

if any.

65. The habendum declares what estate or interest is granted by the deed, though that may be also done in the premises. The description of the things granted need not be repeated in the habendum; as it is sufficient that they are described in the premises.

66. The tenendum was formerly used to express the tenure by which the estate granted was to be held; but since all freehold tenures have been con

verted into socage, the tenendum is of no further use, and is therefore joined to the habendum.

67. The reddendum is that whereby the grantor 1 Inst. 47 a. reserves some new thing to himself, out of what he

has granted before.

68. The fifth part of a deed is the condition, which Tit. 13. has been described in a former title.

69. The warranty is described by Lord Coke to be 1 Inst. 365 a. " a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same and either upon voucher, or judgement in a warrantia chartæ, to yield other lands and tenements, to the value of those that shall be evicted by a former title; or else may be used by way of rebutter."

70. The covenant is an agreement by which one of the parties obliges himself to do something beneficial to, or to abstain from something, which, if done, might be prejudicial to another of the parties.

71. The last part of a deed is the conclusion, which mentions the execution, and the date, either expressly, or by reference to the beginning.

2 Rep. 3.

İd. 9.

72. The fifth circumstance necessary to a deed is, 5° Reading if required. that it be read, if any of the parties require it; if not, Manser's the deed will be void, as to the party requiring it to Case, be read. If a person can, he should read it himself; Thorowand if he be blind or illiterate, some other should good's Case, read it for him. If it be read falsely, it will be void, Shulter's at least for so much as was misread; unless it be 12 Rep. 90. agreed, by collusion, that the deed should be read Anon. Skin. false, on purpose to make it void; for in such a case 2 Atk. 327. it will bind the fraudulent party.

Case,

159.

73. The sixth circumstance required is sealing and 60 Sealing and Signing. signing.

Upon the establishment of the Normans in England, the practice of authenticating all written in

2 Comm.

306.

struments by waxen seals only, was introduced. And in the reign of Edw. I. every freeman, and even such of the most substantial villeins as were fit to be put upon juries, had their particular seals.

74. Sealing alone was sufficient to authenticate a deed, till the reign of Charles II., and is still neces

sary; for no written agreement is considered as a Perk. § 130. deed, unless it be sealed. But if a stranger seal an instrument by the allowance or commandment precedent, or agreement subsequent, of the person that is to seal it, it is sufficient: therefore, if another man seal a deed of mine, and I take it up after it is sealed, and deliver it as my deed, this is said to be a good agreement to, and allowance of the sealing, and so a good deed. If the party seal the deed with any seal beside his own, or with a stick, or any thing else, it is equally good.

$134.

Anon. 12.

Mod. 423.

75. Perkins says, it is not requisite that there be for every grantor, &c. who is named in the deed, a several piece of wax; for one piece of wax may serve for all the grantors, &c. which are named in the deed, if every one of them put his seal upon the same piece of wax, or if another do so for them, if the words of the deed imply so much; that is, if it be said in the deed, in cujus rei testimonium sigilla nostra apposuimus, or words to that effect.

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76. One of the incidents to a corporation, is to have a common seal, to authenticate their proceedings, and to prove that what is done is the act of the corporate society. But Lord C. J. Holt has said, that if a person pretending to be mayor of a corporation, put the corporation seal to a deed, yet it is not, by that, the deed of the corporation.

77. By the statute 29 Cha. II. c. 3. usually called the statute of frauds, it is enacted, that all conveyances of lands shall be in writing, and signed by the

parties. This statute, with the cases that have arisen en it, will be stated in the next chapter.

Stra. 705.

78. A person may appoint another to be his attor- Frontin v ney, to execute a deed for him; but in such case it Small, must be executed in the name of the principal; and the power of attorney is now frequently annexed to the deed.

79. One who executes a deed for another, under a power of attorney, must execute in the name of his principal. But if that be done, it matters not in what form of words such execution is denoted, by the signature of the names.

Wilkes v.
Back,

2 East, 142.

80. The seventh circumstance necessary to a deed 7° Delivery. is, that it be delivered by the party himself, or by his certain attorney. For a deed only takes effect from Goddard's its delivery; and if the date be a false or impossible Case, 2 Repa one, the delivery ascertains the time from which the 1 Salk, 463. deed takes effect.

4 b.

81. If another person seals the deed, yet if the Perk, § 130. party delivers it, he thereby adopts the sealing, and

This 307.

(says Sir W. Blackstone), by a parity of reason, the 2 Comm, signing also, and makes them both his own. doctrine does not appear reconcileable with the statute of frauds, which indirectly requires that all deeds should be signed by the party himself, or his agent lawfully authorized. And the universal practice is, for the party to sign the deed, and to acknowledge

the seal as his.

Jermin,
Cro. Eliz.

82. The deed of a corporation does not need any Willis v. delivery; for the apposition of their common seal gives perfection to it, without further ceremony.

167.

1 Inst. 36 a.

83. The usual mode of delivering a deed is to take it up and say—“ I deliver this as my act and deed.”. But a deed may be delivered without words; so a Thoroughdeed may be delivered by words, without any act of good's Case, VOL. IV,

9 Rep. 136.

Shelton's
Case,
Cro. Eliz. 7.

Touch. 57.

Perk. § 154.
Touch. 60.

1 Inst. 48 b.
Stephens v.
Elliot,
Cro. Eliz.
484.

ante, § 27.

Delivery as

delivery; as if the writing lies upon the table, and the feoffor says to the feoffee, go and take up the said writing, it is sufficient for you; or, it will serve your turn; or, take it as my deed, or the like words, it is a sufficient delivery.

84. A lessee for years granted his term by deed, and sealed it in the presence of the grantee and several other persons. The deed at the same time was read, but not delivered; nor did the grantee take it, but it was left behind in the same place. The opinion of all the Judges was, that it was a good grant; for the parties came for that purpose, and performed all that was requisite for the perfecting it, except an actual delivery; and it being left behind them, not countermanded, it should be said a delivery in law.

85. A deed may be delivered to the party himself, or to any other person, by sufficient authority from him, or it may be delivered to any stranger, for and on behalf and to the use of him to whom it is made, without authority. But if it be delivered to a stranger, without any such declaration, it seems that will not be a sufficient delivery.

86. A deed cannot be delivered twice, for if the first delivery has any effect, the second will be void. Thus if an infant, or a person under duress of imprisonment, delivers a deed; in which case the deed is not void, but only voidable; and after the infant being of full age, or the person who was under duress being at large, do deliver the deed again, such second delivery is void. But where a married woman delivers a deed, and after her husband's death, delivers it again, the second delivery is good; because the first was void.

87. The delivery of a deed may be either absolute, au Escrow. that is, to the grantee, or to some person for him;

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