forborne at the request of another, without any express stipulation; in which case the law presumes an adequate compensation for the act of forbearance, to have been the inducement of the one party, and the undertaking of the other. 53. The third circumstance necessary to a deed is, III. Writing. that it be written or printed on paper or parchment; although it may be in any language or character 1 Inst. 229. a whatever. If it be written on stone, board, linen, leather, or the like, it is no deed. Wood and stone, 2 Cơm. 297. says Sir W. Blackstone, may be more durable, and linen less liable to erasures; but writing on paper or parchment unites in itself, more perfectly than in any other way, both these desirable qualities; for there is nothing else so durable, and at the same time so little liable to alteration: nothing so secure from alteration, that is at the same time so durable. 54. All the matter and form of a deed must be Touch. 54. written before the sealing and delivery of it. For if a man seals and delivers an empty piece of parchment or paper, though he at the same time give directions that an agreement shall be written above, which is accordingly done, yet it is not a good deed. 55. The blanks in a deed may, however, if not very material, be filled up after its execution. 2 Cha. R. 187. 56. A deed of revocation, and a new settlement Paget v. Paget, made by that deed; though after the sealing and Doe v. Bingexecution thereof, blanks were filled up, and not read ham, 4 Barn. & again to the party, or resealed and executed; was held good. Ald. 672. 57. A deed must also have the regular stamps re- Proper stamps. quired by the several statutes made for that purpose, otherwise it cannot be given in evidence. It should, however, be observed, that the laws which require all deeds to be stamped do not prevent their legal effect Fearne's Post. and operation, but only suspend their being pleaded, or given in evidence, or admitted in any court to be good, useful, or available, till the duty and penalty be 411., IV. Sufficient words. 1 Inst. 6. a. paid, and the deed properly stamped. The omission of the stamps in the first instance, is therefore immaterial, if the deed be afterwards duly stamped. 58. The fourth circumstance necessary to a deed is that there be words sufficient to specify the agreement, and bind the parties, legally and orderly set forth. That is, there must be words sufficient to signify the terms and conditions of the agreement, and to bind the parties; which sufficiency must be left to the law to determine. 59. 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. CO. These formal and orderly parts are, 1. The premises, which contain all that part preceding 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. 2. The habendum, which declares what estate or interest is granted, though that may be also done in the premises. But the description of the things granted need not be repeated in the habendum, as it is sufficient that they are described in the premises. 3. The tenendum, which was formerly used to express the tenure by which the estate granted was to be held; but since all freehold tenures have been converted into socage, the tenendum is of no further use, and is therefore joined to the habendum. 4. The red dendum, which is that whereby the grantor reserves some new thing to himself, out of what he had granted before. 5. The condition, which has been treated of Tit. 13. in a former title. 6. The warranty, which is described by Lord Coke to be "a covenant real annexed to 1 Inst. 365. a. lands or tenements, whereby a man and his heirs are: bound to warrant the same; and either upon voucher, or judgment in a warrantia charte, 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. 7. The covenant, which is an agreement by which one of the parties obliges himself to do something beneficial to, or abstain from something, which, if done, might be prejudicial to another of the parties. 8. The conclusion, which mentions the execution, and the date, either expressly or by reference to the beginning. v. Reading, if required. 2 Rep. 3. case, id. 9. Anon. Skin. 61. The fifth circumstance necessary to a deed is, that it be read, if any of the parties require it; if not, the deed will be void, as to the party requiring it to be read. If a person can, he should read it himself; if he be blind or illiterate, some other should read it 12 Rep. 90. for him. If it be read falsely, it will be void, at least 159. for so much as was misread, unless it be agreed by collusion, that the deed should be read falsely, on purpose to make it void; for in such case it will bind the fraudulent party. 2 Atk. 327. signing. 62. The sixth circumstance required is, sealing, vi. Sealing and and, in most cases, signing. Upon the establishment 2 Com. 306. of the Normans in England, the practice of authenticating all written instruments by waxen seals only, was introduced; and in the reign of Edw. I. every freeman, and such of the most substantial villeins as were fit to be put upon juries, had their particular seals. 63. Sealing alone was sufficient to authenticate a deed till the reign of King Charles II. and is still absolutely necessary; for no written agreement is consi Perk. § 130. § 134. Anon. 12. dered as a deed unless it be sealed. But if a stranger. seal an instrument by the allowance, or the commandment precedent, or agreement subsequent, of the person who is to seal it, that 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. So if the party seal the deed with any seal beside his own, or with a stick, or any thing else, it is equally good. 64. 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. 65. One of the incidents to every 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 Holt says, that if a person, pretending to be mayor of a corporation, puts the corporation seal to a deed, yet it is not by that the deed of the corporation. 66. By the statute 29 Cha. II. c. 3. usually called the statute of frauds, it is enacted, "That all leases, estates, interests of freehold, or terms for years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery of seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases and estates at will only; and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect." By the 2d. section, leases for three years, whereupon the rent reserved amounts to two thirds of the full improved value are excepted. And by the 3d. section, it is enacted "That no leases, estates, or interests, either of freehold or terms for years, or any uncertain interest, not being copyhold or customary interest of, in, to, or out of any messuages, &c. shall be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law.' 67. A person may appoint another to be his attorney Frontin v. to seal and sign a deed for him; but in such a case 705. the deed must be executed in the name of the principal. If that be done, it matters not in what form of words such execution is denoted, by the signature of the names. The power of attorney is now frequently annexed to the deed. Small, Stra. 2 East. 142. 2 Rep. 4. b. Salk, 463. 1 68. The seventh circumstance necessary to a deed vii. Delivery. is, that it be delivered by the party himself, or by his Goddard's case, certain attorney. For a deed only takes effect from its delivery; and if the date be a false or impossible one, the delivery ascertains the time from which it takes effect. 69. If another person seals the deed, yet if the Perk. § 130. party delivers it, he thereby adopts the sealing, and (says Sir W. Blackstone), by a parity of reason, the 2 Com. 07. signing also, and makes them both his own. This 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. 70. The deed of a corporation does not need any delivery; for the apposition of their common seal gives perfection to it, without any further ceremony. But it has been held in a modern case, that though Wilmot, 9 East, Derby canal v. 360. |