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tain ideas. Thus a fee-simple cannot be granted without the word “ heirs," nor an estate tail without the words “ heirs of the body ;"" so the word “exchange” is essential in a deed of exchange, and a warranty of real property can be created by deed by no other expression than warrant ;a but with these few exceptions it may be laid down, that if a deed contains a clear statement of the party's meaning, it will be supported in whatever form that meaning is expressed ; but as the forms of deeds at present in use have to adopt the words of Mr Justice Blackstone) “ been well considered, and settled by the wisdom of successive ages, it would be imprudent to depart from them without good reason or urgent necessity,” a deed may now be considered as divided into the eight parts, which are mentioned in order below.
1. The premises, in which are found the names, additions, and titles of the parties. The recitals of such deeds, and other matters, as will explain the Nature and object of the deed. The consideration on which the deed is founded. The grant, and the certainty of, or such description as points with certainty to, the grantor, grantee, and thing granted, and the exception of that part (if any) of the thing granted as is not intended to pass by such grant.
2. The habendum, the object of which is to declare what estate or interest is granted, but which is often done in the premises, and in such case the habendum can only qualify the estate given in the premises, as by enlarging, lessening, or explaining it, for if it were repugnant, then it would be void, and the estate given in the premises take effect. Thus, if lands are given in the premises, to A. and his heirs, habendum to A. for life, the habendum would be void, and A. would take the fee;' but if the habendum had been to A. and the heirs of his body, then the habendum
would stand, and A. take only an estate tail. In one case it has been held, that where the estates given by the premises and the habendum can consistently stand together, they shall do so, as in the case of a grant to A. and the heirs of his body, habendum to A. and his heirs, A. was held to take an estate tail with a remainder in fee. .
3. The tenendum, which formerly described the tenure by which the estate was to be holden, but since almost all tenures are reduced to free and common socage, the only relic of this part of a deed which custom has retained are the words “to hold.”
4. The reddendum, by which some thing is reserved out of the thing granted, as ten shillings, a pepper-corn, or two days' ploughing, &c.; and with respect to such reservation, it must be remarked, that any thing newly created and reserved can be reserved to the grantor and his heirs only;' but if the reservation is of something previously issuing out of the land, then it may be reserved to the lord of the fee, or other person to whom such service or rent was previously payable. Thus a rent reserved on the grant of a lease being a new thing, must be made payable to the lessor and his heirs, or other persons entitled to the reversion after him, as a remainderman; whereas, on an assignment of a lease, in which rent was reserved, such rent should be made payable to the original lessor, or other person entitled to the reversion, though such person should be a stranger to the deed of assignment.
5. The condition, which is a clause of contingency on the happening of which the estate granted may be defeated.
6. The warranty comes next in order. By it the grantor doth for himself and his heirs warrant and secure to the grantee the estate granted, which is a kind of covenant real to secure to the grantee and his heirs the enjoyment of the thing granted against
d Thurman's case, 2 Roll. Abr. 68.
18 Rep. 71. is Co. Litt. 47, a; Sheph. T. 80.
all men. The books contain a great deal of learning on the subject of warranties, but it is not now one of much general importance, as, by two statutes passed in the 3d and 4th Will. IV. they were practically done away with, for by the 39th sec. of cap. 27, it was enacted that no warranty which might be made after December 31, 1833, should toll or defeat any right of entry or action for the recovery of land ; and by the 14th sec. of the 74th cap., all warranties made after the same period by any tenant in tail were made absolutely void against the issue in tail, and all persons whose estates were to take effect after the determination, or in defeazance of the estate tail ; and by the 30th sec. of the former act the writ of warrrantia charta was swept away with many other obsolete ones, and, indeed, long before these statutes, covenants for title had entirely superseded the warranty.
7. The covenants by which a party stipulates for the truth of any fact or statement, as that he is seised in fee of the estate conveyed, or agrees to perform, or refrain from doing any act; of such a character are the usual covenants for payment of money in a mortgage, or for further assurance in a conveyance.
A covenant to refrain from performing a legal duty, or to do an illegal or immoral act, or any act impossible at the time of entering into the covenant, is void ; but if the act does not become impossible till afterwards, the covenant will be supported.
8. The conclusion, in which the execution and date of the deed are mentioned or referred to.
III. OBSERVATIONS ON THE PREPARATION OF DEEDS.
As several statutes and powers require deeds executed under their authority to be by indenture, it is the safest plan to make use of that sort of deed in preference to deeds poll in all cases. An indenture, according to Coke's definition, Co. Litt. 229, a, is a
writing between two or more indented on the top or side. Indenting is necessary to make an indenture, but if a deed intended to be an indenture should be executed by mistake previous to its being indented, it is apprehended that the circumstance of its being indented afterwards would not affect its validity.
Of parties there are two distinct classes. The active, who convey or release some estate, right, or interest, enter into any covenant, acknowledge the truth of any statement, or consent to, or direct the execution of any other party ; and the passive, as grantees, releasees, covenantees, &c. All of the former class should execute the deed, but except in the case of trustees, to remove all doubts as to their acceptance of the trusts, the execution by the passive parties is of no importance.
The order in which the parties are named is not very material, but there are certain rules, the adherence to which tends to the neatness and clearness of a deed; the parties, whether active or passive, should be placed according to the worthiness of the estate or interest conveyed or received by them. Thus, the party conveying the legal estate should stand before all the other active parties, and the person to whom such estate is conveyed before all the other passive parties; the freehold tenant should be placed before the chattel tenant ; persons having estates before those having rights, and persons executing by the direction, or with the approbation of another, should be placed before the parties testifying their consent or approbation. If persons are parties to a deed in different characters, and act jointly with different persons, they may with propriety (but it is not necessary that they should be named in different parts, according to their several characters. Joint tenants should be named as one party, but tenants in common, and others having separate interests, should be named in different parts. Where there is no difference in worthiness of estate, as trustees of different terms, there the order of time
in which they act will point out the order in which they should be named.
The object with which recitals are used in a deed is twofold; to explain the object of the deed, by stating the agreement or other inducement upon which it is founded, and to show the interest which the several parties have and intend to pass in the subject-matter of the deed, and this will in general point out how far it is proper to go back in reciting the state of the title; but under some circumstances the draftsman may with propriety trace the title to an earlier period than such rule would require, for the sake of keeping a connected record of the links of the title. Thus, though a recital of the ancestor's seisen would be sufficient to show the title of his heir, yet it would be desirable to recite the conveyance or other instrument under which the ancestor became entitled, and in assignments of terms where there have been but one or two previous transfers, the instrument creating, and each assignment of the term, should be recited; but if they have been numerous, then they may be shortly referred to, and recitals of the deed creating the term, and the last transfer, will be sufficient, introducing the latter by some few words of reference to the intermediate assignments. [See p. 32.]
All things necessary to be recited should, if possible, be introduced as distinct substantive recitals, and not as recitals within recitals; but this latter course is sometimes unavoidable, for parties to a reconveyance, standing in the place of trustees or mortgagees, generally object to any thing being stated in any other way than as a recital of the contents of the conveyance to them, not choosing to pledge themselves to the truth of such facts. This observation cannot, of course, apply to facts that have occurred subsequent to the execution of such original conveyance.
It is difficult, if not impossible, to give any directions as to the selection of what facts or instruments,