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2 Comm. struments by waxen seals only, was introduced. And 306.
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 à 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.
75. Perkins says, it is not requisite that there be for every grantor, &c. who is named in the deed, a several piece of
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.
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 corAnon. 12. porate society. But Lord C. J. Holt has said, that Mod. 423.
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 on it, will be stated in the next chapter. 78. A person may appoint another to be his attor- Frontin va
Small, ney, to execute a deed for him ; but in such case it
Stra. 705. must be executed in the name of the principal ; and
of attorney is now frequently annexed to the deed.
79. One who executes a deed for another, under a Wilkes v, power of attorney, must execute in the name of his 2 East, 142. principal. But if that be done, it matters not in what form of words such execution is denoted, by the signature of the names.
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 Rep. one, the delivery ascertains the time from which the 1 Salk, 463. deed takes effect.
81. If another person seals the deed, yet if the Perk, g 130. party delivers it, he thereby adopts the sealing, and (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.
82. The deed of a corporation does not need any Willis v. delivery; for the apposition of their common seal Cro. Eliz. gives perfection to it, without further ceremony.
83. The usual mode of delivering a deed is to take it up and say—“ I deliver this as my act and deed.”—
1 Ipst. 36 a. But a deed may be delivered without words; so a Thoroughdeed may be delivered by words, without any act of good's Case,
9 Rep. 136. Vol. IV,
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. Shelton's 84. A lessee for years granted his term by deed, Case, Cro. Eliz. 7.
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. Touch. 57., 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. Perk. $ 154. 86. A deed cannot be delivered twice, for if the Touch. 60. 1 Inst. 48 b. first delivery has any effect, the second will be void. Stephens v. Thus if an infant, or a person under duress of imElliot, Cro. Eliz. prisonment, 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, ante, $ 27. delivers it again, the second delivery is good ; because
the first was void. Delivery as 87. The delivery of a deed may be either absolute, au Escrow.
that is, to the grantee, or to some person for him;
or conditional, that is, to a third person, to keep it till some thing is done by the grantee: in which last case it is not delivered as a deed, but as an escrow, that is, a scrowl or writing, which is not to take effect, till the condition is performed.; when it becomes a good deed.
88. Where a deed is delivered as an escrow, it is Touch. 59. of no force till the condition is performed; and although the party to whom it is made, should get it into his possession, before the condition is performed, yet he can derive no benefit from it. But if either of the parties die before the condition is performed, and afterwards the condition is performed, the deed becomes good, and will take effect from its first delivery, 3 Rep. 35 b. For there was traditio inchoata in the lifetime of the parties ; et postea consummatio eristens, by the performance of the condition.
89. Where a person who delivers a deed as an Idem. escrow, has not power or ability, in law at that time to make the deed, and before the second delivery he attains such power, there the deed is void. But where the person at the first delivery has power and ability in law to contract, but cannot perfect it till an impediment be removed ; there, if the impediment be removed, before the second delivery, the deed is good.
90. If an unmarried woman delivers a deed as an Idem. escrow, and before the second delivery, she marries or dies ; in such a case, for necessity, ut res magis valeat quam pereat, by fiction of law, this shall be a good deed, ab initio.
91. In the delivery of a deed as an escrow, two Touch. 58. things must be attended to. First, that the form of the words used in the delivery be apt and proper; The proper words are these-" I deliver this to you
as an 'escrow, to deliver to the party as my deed,
attestation. Idem. 92. Secondly, that the delivery of the deed as an 1 Inst.36 a.
escrow, be to a stranger; for if a person delivers a 9 Rep. 137 a.
deed to the party himself, to whom it is made, as an escrow, upon certain conditions, the delivery is absolute, and the deed will take effect immediately : nor will the party to whom it is delivered, be bound
to perform the conditions. 8. Attesta- 93. The eighth and last circumstance necessary to tion by Wit
a deed, is the attestation of it by witnesses ; which is 2 Rep. 5 a. not a thing essential to the deed itself ; but only con
stitutes the evidence of its authenticity. Garret v.
94. In the reign of Queen Elizabeth, deeds were Lister, often without witnesses. In 13 Cha. II. a counterpart I Lev, 25.
of an old lease without witnesses, was allowed as good evidence; and Mr. Justice Windham said, he had seen several deeds made in Queen Elizabeth's time without witnesses.
95. It is not necessary that the witness should Mears, 2 Bos. actually see the party execute the deed; for if he be & Pul. 217.
in an adjoining room, and the party after executing the deed brings it to him, tells him he has done so, and desires him to subscribe his name as a witness, that is sufficient.