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1 Inst. 36. a. 9 Rep. 136.

Shelton's case,
Cro. Eliz. 7.

Touch. 57.

Perk. § 154.
Touch. 60.

the affixing of the common seal to a deed of conveyance of a corporation be sufficient to pass the estate without a formal delivery, if done with that intent; yet it had no such effect, if the order for affixing the seal was accompanied with a direction to their clerk to retain the conveyance in his hands till accounts were adjusted with the purchaser.

71. 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 deed may be delivered by words, without any act of 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.

72. 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 of it, except an actual delivery; and it being left behind them, not countermanded, it should be said a delivery in law.

73. 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.

74. A deed cannot be delivered twice, for if the 1 Inst. 48. b. 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,

Stephens v.
Elliot, Cro.
Eliz. 484.

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 Ante, § 31. ` was void.

escrow.

75. The delivery of a deed may be either absolute, Delivery as an that is, to the grantee himself, or to some person for him; or else conditional, that is to a third person, to keep it till something 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.

76. 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. For 3 Rep. 35 b. there was traditio inchoata in the lifetime of the parties;

et postea consummatio existens, by the performance of the condition.

77. 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.

78. If an unmarried woman delivers a deed as an escrow, and before the second delivery, she marries Idem. 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.

Touch. 58.

Idem.

1 Inst. 36. a.

deed as an escrow, two First, that the form of

79. In the delivery of a things must be attended to. 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, upon condition that he deliver to you 201. for me;" or upon any other condition then mentioned. This mode of delivery ought to be taken notice of in the attestation.

80. Secondly, that the delivery of the deed as an 9 Rep. 137. a. escrow, be to a stranger; for if a person delivers 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.

VIII. Attestation by witnesses.

Garret v. Lister, 1 Lev. 25.

Park v. Mears, 2 Bos. & Pul. 217.

81. The eighth and last circumstance necesary to a deed, is the attestation of it by witnesses, which is not a thing essential to the deed itself; but only constitutes the evidence of its authenticity.

82. In the reign of Queen Elizabeth, deeds were often without witnesses. In 13 Cha. II. a counterpart 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.

83. It is not necessary that the witness should actually see the party execute the deed; for if he be 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.

CHAP. III.

Circumstances necessary to an Agreement within the
Statute of Frauds.

1. Construction of the 4th Section. 3. What amounts to an Agreement.

9. What is a sufficient Signing. 15. An Agent authorized to sign by Parol.

16. A Letter is an Agreement.
21. Letters previous to Marriage.
27. Parol Agreements good in
Equity.

28. Where there is Fraud.

32. Where there is a Part Per-
formance.

33. Delivery of Possession.
36. Payment of Purchase Money.
38. Introductory Acts not a Part
Performance.

44. Where Parol Agreements are
confessed.

46. A written Agreement dis-
charged by Parol.

48. No Averment is admissible.

SECTION I.

the 4th section.

By the 4th section of the statute of frauds, it is Construction of enacted, That no action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.

2. A great number of cases have arisen upon the construction of this section of the statute, respecting marriage agreements and contracts for the sale of lands; which we shall endeavour to class under the following heads: 1. What amounts to an agreement or contract. 11. What is a sufficient signing of an agreement or contract. III. In what cases a written note or letter will be considered as a sufficient agreement. IV. In what cases a parol agreement is out of this act, and supported in equity.

D

What amounts

to an agreement.

Cannel v.
Buckle, 2 P.
Wms. 342.

Charlewood v.
D. of Bedford,

1 Atk. 497.

Cass v. Water

Cha. 29.

3. With respect to the agreement in writing required by the statute, no precise form is necessary. It must, however, contain all the terms of the contract, distinctly set forth, and be made with the privity and consent of all the contracting parties.

4. Any written evidence of an agreement will operate as a contract within the statute. Thus an instrument originally intended as a deed, but which became void by subsequent events, was held to amount to an agreement, upon which a specific performance was decreed. 5. A mere entry by a steward in his contract book with the tenants, is however not evidence that there is an agreement for a lease, between the lord and one of his tenants; unless supported by proof.

6. A particular in writing for the sale of an estate house, Prec. in will not amount to an agreement, though it be proved to have been shown to the purchaser; unless it be also proved that it was shown to him on his purchase, and that he purchased by it.

Blagden v.
Bradbear,

12 Ves. 466.

Att. Gen. v.

Day, 1 Ves. 218.

7. Where an estate is sold by public auction, and the auctioneer puts down the name of the purchaser in writing, this does not amount to an agreement within the statute, as to real property; though sufficient for chattels. In a late case, Sir W. Grant said "The proposition that the auctioneer's receipt may be a note or memorandum of an agreement within the statute, is not denied: but for that purpose the receipt must contain in itself, or by reference to something else must show, what the agreement is. In this instance one very material particular, the price to be paid for this estate, does not appear upon the receipt for the amount of the deposit, unless we know the proportion it bears to the price, does not show what the price is; and the receipt contains no reference to the conditions of sale, to entitle us to look at them for the terms."

8. A bidding for an estate, before a Master in Chancery, amounts to an agreement within the statute.

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