Page images
PDF
EPUB

is made for the purpose of trying the infant's title, it will be supported : so, though the bond of an infant is void,d yet, as it would be most disadvantageous to an infant if he could not contract for the necessaries of life, a single bill (which is a bond without a condition) given for them is considered good ; 1 Lev. 86.

It was in this spirit that the 17 Geo. III. cap. 26, was passed, by which it was enacted, for the protection of infants, that all contracts with them for the purchase of annuities should be absolutely void.

On the other hand, the legislature have in some instances given validity to the acts of infants, as in the case of infant mortgagees or trustees, who are, under 1 Will. IV. cap. 60, empowered to convey their trust or mortgage estates under the authority of a court of equity.

The deeds of married women, unless in execution of a power, or under the provisions of some enabling statute, are absolutely void.

The deeds of idiots and lunatics may also be avoided, either by the king after office found, or by their privies in blood or representation, namely, their heirs, or executors, or administrators, after their death; but it appears that a lunatic in his lucid intervals will not be allowed to stultify himself in order to avoid his own deed.

A deed is looked upon as an instrument of so high a nature, and made upon such mature deliberation, that at the common law it was not necessary, as in the case of parol contracts, that a consideration should be either stated or proved, in order to its validity ;8 but there are now many very important exceptions to this rule ; for no conveyance under the statute of uses is valid without a consideration, a bargain and sale requiring a valuable consideration, as money or

c Zouch v. Parsons, 3 Burr. 1806. d Co. Litt. 172, a. e Daniel v. Ubley, Latch, 41; Manby v. Scott, Sid. 120. i Co. Litt. 247, a ; Beverley's case, 4 Rep. 123. & Rann v. Hughes, 7 T. R. 350, n; 3 Burr. 1671.

money's worth, and the consideration of blood or marriage, being equally necessary to the validity of a covenant to stand seised. And, by various statutes, conveyances without a valuable consideration are declared to be fraudulent and void, as against creditors or purchasers for a valuable consideration ; but, as it is beyond the scope of this work to enter into a detailed survey of their provisions, the reader is referred to Cruise Digest, vol. iv. tit. 32, and Fonbl. Equity, and the many valuable works which treat at length on this important subject. Where a consideration is stated, the validity of the deed depends on the legality of such consideration. Thus, all deeds upon an usurious consideration are, by 12 Anne, cap. 2, sec. 16, declared to be absolutely void.

Sealing and delivery, as before stated, are essential to the validity of a deed ; and, since the statute of frauds has made signing necessary to the conveying any interest in lands, that ceremony has also become universal, except in the cases of corporations aggregate, and ought never to be omitted, though it does not appear to have been directly decided by any case that a signature is necessary to all deeds.j

The execution of a deed may be either by the party himself, or by his attorney, appointed by deed, and, in the latter case, the attorney should not sign in his own name on behalf of his principal, as is sometimes erroneously done, but should sign the name of his principal, adding, by A. B., his attorney; for if he were to sign his own name only, his principal would not be bound.

Before the deed is executed, it must be read if it is so wished by any of the parties, for if it is not read when desired, or read falsely, in the former case it

13 Eliz. cap. 5; 27 Eliz. cap. 4. i Walker v. Perkins, 3 Burr. 1568; 1 Bl. Rep. 517. į Taunton v. Peplar, 6 Mad. 166.

k White v. Cuyler, 6 T. R. 176; Frontin v. Small, 2 Raym. 1418; Wilkes v. Back, 2 East, 142.

will be void altogether, and in the latter, as to such part as may be falsely read, unless it was misread by collusion, when it will be valid against the party guilty of the fraud ; but if a party who can read a deed neglects to do so himself, he cannot afterwards avoid it; Shep. Touch. tit. 56.

A deed takes effect from its delivery, whatever may be its date, even though it should be an impossible one, as the 30th February, but still a date should never be omitted, and should, unless there is some good reason for the contrary, (as in the case of the bargain and sale for a year in a conveyance by lease and release,) be dated on that day on which it is first executed by any of the parties.

If, in cases where it is important that the date of the deed should be correctly set forth, an error in that particular should be discovered after it has become improper to correct it, on account of the deed having been then executed by any of the parties, or otherwise, it would be advisable for the witnesses to state in their attestation the date of its execution by that party whose signature they attest, or that some memorandum should be made of the real date.

Strictly speaking, attestation is not necessary to the validity of a deed, but it ought never to be omitted, for it very much increases the facility of proving it, and in a great measure prevents the grantor from denying his own deed, should it ever become his interest to do so. It must not here be forgotten, that the validity of most appointments under powers depends upon their being properly attested according to the directions of such powers.

By the 4th section of the bankrupt act, 6 Geo. IV. cap. 16, deeds of assignment by traders for the benefit of their creditors require the attestation of a solicitor or attorney.

The attestation should state every ceremony necessary to the validity of the deed, as signing, seal

| Manser's case, 2 Rep. 3 ; Thoroughgood's case, 2 Rep. 9; Shulter's case, 12 Rep. 90; 2 Atk. 327.

ing, and delivery. This may sometimes be of great importance, as in the case of appointments. Any interlineations or erasures, which are not very trifling, should, for the sake of avoiding future questions, be noticed in the attestation as having been made before the execution.

It may not be altogether ont of place here to call the attention of professional men to a practice very common amongst them, of being themselves the attesting witnesses to deeds affecting the interests of their own clients, a practice grown up, in all probability, from a very proper desire to have deeds attested by persons familiar with the requisites to their due execution. This practice is attended with the inconvenience, that when a solicitor is placed in the witness-box to prove the execution of a deed he has attested, he must disclose all the circumstances connected with the execution, however injurious they may be to his client, who thereby, to that extent, loses the privilege he would otherwise have had, of his solicitor being protected from discovering transactions that came to his knowledge in the character of his professional adviser.m

The several grounds upon which a deed is void ab initio, or voidable from defects existing at its execution, have been already stated. A deed may also be avoided by matter ex post facto, as by a disclaimer or disagreement, or on account of any interlineation, addition, or erasure," made by any of the parties to it, but not if made by a mere stranger ;o and in a modern case, it was determined that some trifling alteration, and the filling up some blanks after the execution by some of the parties, leaves the deed valid as to the persons that had executed it, if

Lord Save and Sele's case, 10 Mod. 40; Sandford v. Remington, 2 Ves. 189; and Lord Brougham's Observations in Greenough v. Gaskell, 1 M. and K. 109. * Pigot's case, 11 Rep. 26. • 6 East, 309; 9 East, 351. P Doe v. Bingham, 4 B. and Ald. 672.

the alteration has not affected the situation in which they stood. It need hardly be observed, that no person will be allowed to set up an erasure or alteration made in a deed by himself as a reason for avoiding such deed.

Cancelling a deed by destruction of the seals, or otherwise, will, unless it is the work of time or accident, render a deed void, but not so far as to divest any estates previously vested by such deeds."

Deeds obtained by fraud may be avoided either at law or in equity. The case above mentioned of a deed being misread is an instance of this.

It hardly comes within the compass of a work of this character to enter into all the many cases in which deeds are by statute, or the decisions of the several courts of law or equity, declared void or voidable for reasons of policy, but reference may be made to the case of deeds taken as rewards for procuring marriages, or appointments to offices of trust under government, purchases by trustees, assignees of bankrupts, or solicitors, deeds before marriage in fraud of the marital," or conjugal rights,' and conveyances by the king's debtors, which are void as against the crown."

11.-OF THE DIFFERENT PARTS OF A DEED.

There are certain words which the law has pointed out as the only proper vehicle for conveying cer

[ocr errors]
« PreviousContinue »