Page images
PDF
EPUB

Indenture.
Lit. § 370.

sents, that I., A. have given, granted and enfeoffed, and by these presents do give, grant, and enfeoff, &c. 20. An indenture is a mutual agreement between two or more persons, whereof each party has usually a part. 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. 1. Inst. 143. b. 21. Lord Coke says, to constitute an indenture, it 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 deed was produced as an indenture, which was not indented, beginning with the words hæc indentura, it was ad→ judged 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.

229.a.

5. Rep. 20.

22. The practice has long been to cut the first skin of parchment on which an indenture was written, in 4. Bac, Ab. 51. an undulating line. It is said by Sir H. Gwillim, that if only the form of indenting the parchment or paper be wanting, this is not material; for it might even be done in court, and therefore no exception is now taken on such a trifling omission.

23. In the case of an indenture, there ought regularly 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 which 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 counter

Prec. in Cha.

part of a deed has been admitted to be sufficient Eyton v. Eyton, evidence of such deed; and a conveyance decreed 116. accordingly.

109.

24. If there happens to be any variance between the Finch's Law, 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.

fers the estate

sent of the

25. All deeds, whether deriving their effect from A deed transthe common law, or the statute of uses, except a without the asfeoffment, do, immediately upon their execution by grantee. the grantors, divest the estate out of them, and put it in the party to whom the conveyance is made, though in his absence, and without his knowledge, till some Gorton's Case. disagreement to such estate appears.

infra, c. 12.

Leach, 2 Vent.

296.

26. This doctrine is founded on the principle that Thompson v. the assent of the party who takes, is implied in all 201. 3 Mod." conveyances; 1. Because there is a strong intendment in law, that it is for a person's benefit to take; and no man can be supposed unwilling to that which is for his advantage. 2. Because it would seem incongruous and absurd, that when a conveyance is completely executed on the grantor's part, the estate should continue in him. 3. Because, if the operation of a conveyance was allowed to be in suspense, and to expect the agreement of the party to whom it was made, there would be an uncertainty of the freehold.

27. It is a common practice for persons to enter Article of 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 execute some other disposition of them.

28. An article is therefore considered as a memorandum or minute of an agreement, to make some future disposition or modification of real property. Such an instrument will create a trust or equitable estate, and a specific performance of it will be decreed in Chancery.

29. 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.

1. Sufficient parties.

CHAP. II.

Circumstances necessary to a Deed.

2. 1. Sufficient Parties.

6. Who may Convey by Deed.

8. The King.

9. The Queen.

10. Corporations.

37. Who may be Grantees.
41. Conveyances to Charitable
Uses.

44. 11. Consideration.
50. Different kinds of.

12. Who are incapable of Con- 53. 111. Writing.

[blocks in formation]

57. Proper Stamps.
58. IV. Sufficient Words.
61. v. Reading, if required.
62. vi. Sealing and Signing.
68. vII. Delivery.

75. Delivery as an Escrow.
81. VIII. Attestation by Witnesses.

SECTION 1.

WHEN 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. II. A good and sufficient consideration. III. Writing on paper or parchment, duly stamped. IV. Words sufficient to specify the agreement and bind the parties, legally and orderly set forth. v. Reading, if desired. VI. Sealing and signing. vir. Delivery. VIII. Attestation by witnesses.

2. The first circumstance 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 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. All those who are intended to take an immediate estate under a deed indented, must also be parties to it, but a person may take an estate in remainder, by a deed to which he is not a party; and when the person to whom the remainder is limited, enters on the land, he then becomes bound to perform the conditions contained in the deed.

[blocks in formation]

D. 1.

4. In a deed poll, the person with whom the agreement is made becomes, in fact, a party to it. Thus, Com. Dig. Fait, if A., by deed poll, agrees to pay a sum of money to B., an action may be maintained by B. 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 conconveying by deed, it may be laid down, as a general vey by deed, rule, that all those who, having attained the age of twenty-one 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 both Perk. § 25. deaf and dumb, may convey by deed; if it appear that, notwithstanding those disabilities, they are capable of comprehending the nature and consequences of a deed, and can express their meaning by writing or signs.

8. By the common law the king can only grant and The King. take by matter of record; but, by a modern statute, the late king and his successors are enabled to convey Tit. 34. all lands purchased with their privy purse, and also all such estates as shall come to them by escheat, in the same manner as a subject.

The Queen.

Corporations,

9. A queen consort is considered as a feme sole; she may, therefore, be party to any species of deed, without the king; and, by the statute 39 & 40 Geo. III. c. 88. §. 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.

10. 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 1 st. 94. 6. only in supposition of law, yet such an artificial body is capable, by its creation, of being a 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 a master of a college, without his fellows, cannot, by executing a deed, bind the corporation.

10 Rep. 30. b. 1 Sid. 162.

1 Ves. & B. 226.244.

Ch. 5.

11. All lay civil corporations may alien their lands as freely as individuals; but ecclesiastical and eleemosynary corporations are restrained by statute 1 Eliz. c. 19. and 13 Eliz. c. 10. from every mode of alienation, 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 hereafter. Incumbents of livings are however permitted 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. And by the statute

« PreviousContinue »