Commentaries on the Laws of England

the estate-tail and all remainders and reversions expectant thereon. (t) And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases make a good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion.

7. After warranty usually follow covenants, or conventions, which are clauses of agreement contained in a deed, whereby either party may [304] stipulate for the truth of certain facts, or may bind himself to per form, or give, something to the other. Thus the grantor may co venant that he hath a right to convey; or for the grantee's quiet enjoyment; or the like; the grantee may covenant to pay his rent, or keep the premises in repair, &c. (u) If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise; if he covenants also for his executors and administrators, his perso nal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty. It is also in some respects a less security, and therefore more beneficial to the grantor; who usually covenants only for the acts of him self and his ancestors, whereas a general warranty extends to all mankind. For which reasons the covenant has in modern practice totally su perseded the other.

8. Lastly, comes the conclusion, which mentions the execution and date of deed, or the time of its being given or executed, either expressly, or by reference to some day and year before mentioned. (w). Not but a deed is good, although it mention no date or hath a false date; or even if it hath an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is delivered, can be proved. (x) 18

u Appendix. N° II. § 2. pag. viii.

t Co. Litt. 574. 2 Inst. 335.
w Ibid. pag. xii.

x Co. Litt. 46. Dyer.

(16) As to covenants in general, see Com. Dig. Covenant. The word "covenant" is not er sentially necessary to the validity of a covenant, for a proviso to pay is a covenant, and may le so declared upon. Clapham v. Moyle, Lev. 155. And it may be inferred from the exception in another covenant. 16 East, $52.

A vendor's covenant that he hath right to convey is usually only against his own acts, and at absolutely that he has a good title. Sometimes when he takes by descent, he covenants agains his own acts and those of his ancestor; and if by devise, it is not unusual for him to covena against the acts of the devisor as well as his own. But the usual words "notwithstanding any act by him done," &c. are generally to be taken as confining the covenant to acts of his own. ? Bos. & P. 22. 26. Hob. 12. See the constructions on covenants for good title, 2 Saund. 178. a b. 181.

Covenants which affect, or are intimately attached to the thing granted, as to repair, pay rent, &c. are said to run with the land, and bind not only the lessee, but his assignee also, 5 Co. 16. b. and enure to the heir and assignee of the lessor, even although not named in the covenant. See 2 Lev. 92. As are also those which the grantor makes that he is seised in fee, has a right convey, for quiet enjoyment, for further assurance, and the like, which enure not caly to the grantee, but also to his assignee. 1 Marsh. 107. S. C. 5 Taunt. 418. 4 M. & S. 188. id. 53. and to executors, &c. according to the nature of the estate. 2 Lev. 26. Spencer's case, 5 Co. 17. b. 3 T. R. 13. And these are covenants real, as they either pass a realty, or confirm an obligation, so connected with realty, that he who has the realty is either entitled to the benefit of, or is liable to perform, the obligation. Fitz. N. B. 145. Shep. Touch. c. 7. 161. See, as to the right and liability of suing and being sued on these covenants, in case of heirs, assignees, &c. 1 Chitty on Pl. 10, 11. 13. 38, 39. 42.

(17) The executors and administrators are bound by every covenant without being camed, unless it is such a covenant as is to be performed personally by the covenantor, and there has been no breach before his death. Cro. Eliz. 553. Christian

(18) The date of a deed is not essential. Com. Dig. Fait, B. S. In ancient times the date of

I proceed now to the fifth requisite for making a good deed; the reading of it. 19 This is necessary, wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party. (y)

Sixthly, it is requisite that the party, whose deed it is, should seal, and now in most cases I apprehend should sign 20 it also." The use of seals,

as a mark of authenticity to letters and other instruments in writing, is [305] extremely ancient. We read of it among the Jews and Persians in the earliest and most sacred records of history. (z) And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase. (a) In the civil law also, (b) seals were the evidence of truth; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use in England. For though sir Edward Coke (c) relies on an instance of king Edwin's making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation and perhaps the charter he mentions may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and whether they could write or not, to affix the sign of the cross; which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of his charters. (d)

y 2 Rep. 3. 9. 11 Rep. 27.

z 1 Kings, c. 21. Daniel, c. 6. Esther, c. 8.

a "And I bought the field of Hananeel, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took witnesses, and weighed him the money in the balauces. And I took the evidence of the purchase, both that which was sealed according to the law and custom, and also that which was open." c. 32.

b Inst. 2. 10. 2 & 3.

c 1 Inst. 7.

d" Propria manu pro ignorantia literarum signum sanctae crucis expressi et subscripsi." Seld. Jan. Angl. 7. 1. § 42. And this (according to Procopius), the emperor Justin in the east, and Theodore king of the Goths in Italy, had before authorized by their example, on account of their inability to write.

the deed was generally omitted, and the reason was this, viz. that the time of prescription frequently changed, and a deed dated before the time of prescription was not pleadable, but a deed without date might be alleged to be made within the time of prescription. Dates began to be added in the reigns of Ed. II. and Ed. III.-Mr. Christian's note.

Where a deed purported to bear date on the 20th of November, and was executed by one of two defendants on the 16th of that month, and by the other on a previous day, it was held to be immaterial, it not appearing that a blank was left for the date at the time of the execution. 6 Moore, 483. A person may declare in covenant that the deed was indented, made, and concluded, on a day subsequent to the day on which the deed itself is stated on the face of it to have been indented, made, and concluded. 4 East, 477. And where there is no date to a deed, an it directs something to be done within a certain time after its supposed date, the time will be ca!culated from the delivery. 2 Ld. Raym. 1076. And see Bac. Ab. Leases, I. 1. Coin. Dig. Fait, B. 3. Chitty.

(19) 2 Co. 3. 9. 12 Co. 90. Skin. 158. 2 Atk. 327. 8 T. R. 147. Com. Dig. Fait, B. 2. (20) See in general, Com. Dig. Fait, A. 2. Sealing must be averred in pleading. 1 Saund. 290. n. 1. If A. execute a deed for himself and his partner by the authority of his partner, and in his presence, it has been held a good execution, though only sealed once, 4 T. R. 313. 3 Ves. 578. though it is an established rule, that one partner cannot bind the other partners by deed. 7. T. R. 207. A person executing a deed for his principal, should sign in the name of the principal, 6 T. R. 176. or thus, "for A. B. (the principal), E. F. his attorney." 2 East, 142. (21) Signing seems unnecessary unless in cases under the statute of frauds and deeds executed under powers. Com. Dig. Fait, B. 1. 17 Ves. J. 459. Christian.

form, or give, something to the other. Thus the grantor may covenant that he hath a right to convey; or for the grantee's quiet enjoyment; or the like; the grantee may covenant to pay his rent, or keep the premises in repair, &c. (u) If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise; if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty. 17 It is also in some respects a less security, and therefore more beneficial to the grantor; who usually covenants only for the acts of himself and his ancestors, whereas a general warranty extends to all mankind. For which reasons the covenant has in modern practice totally superseded the other.

u Appendix. N° 11. § 2. pag. viii.

t Co. Litt. 374. 2 Inst. 335.
w Ibid. pag. xii.

x Co. Litt. 46. Dyer. 23.

(16) As to covenants in general, see Com. Dig. Covenant. The word "covenant" is not es sentially necessary to the validity of a covenant, for a proviso to pay is a covenant, and may be so declared upon. Clapham v. Moyle, Lev. 155. And it may be inferred from the exception in another covenant. 16 East, 352.

A vendor's covenant that he hath right to convey is usually only against his own acts, and not absolutely that he has a good title. Sometimes when he takes by descent, he covenants against his own acts and those of his ancestor; and if by devise, it is not unusual for him to covenant against the acts of the devisor as well as his own. But the usual words "notwithstanding any act by him done," &c. are generally to be taken as confining the covenant to acts of his own. 2 Bos. & P. 22. 26. Hob. 12. See the constructions on covenants for good title, 2 Saund. 178. a.

b. 181.

Covenants which affect, or are intimately attached to the thing granted, as to repair, pay rent, &c. are said to run with the land, and bind not only the lessee, but his assignee also, 5 Co. 16. b. and enure to the heir and assignee of the lessor, even although not named in the covenant. See 2 Lev. 92. As are also those which the grantor makes that he is seised in fee, has a right to convey, for quiet enjoyment, for further assurance, and the like, which euure not caly to the grantee, but also to his assignee. 1 Marsh. 107. S. Č. 5 Taunt. 418. 4 M. & S. 188. id. 55. and to executors, &c. according to the nature of the estate. 2 Lev. 26. Spencer's case, 5 Co. 17. b. 3 T. R. 13. And these are covenants real, as they either pass a realty, or confirm an obligation, so connected with realty, that he who has the realty is either entitled to the benefit of, or is liable to perform, the obligation. Fitz. N. B. 145. Shep. Touch. c. 7. 161. See, as to the right and liability of suing and being sued on these covenants, in case of heirs, assignees, &c. 1 Chitty on Pl. 10, 11. 13. 38, 39, 42.

(17) The executors and administrators are bound by every covenant without being named, unless it is such a covenant as is to be performed personally by the covenantor, and there has been no breach before his death. Cro. Eliz. 553.

Christian

(18) The date of a deed is not essential. Com. Dig. Fait, B. S. In ancient times the date of

I proceed now to the fifth requisite for making a good deed; the reading of it." This is necessary, wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party. (y)

Sixthly, it is requisite that the party, whose deed it is, should seal, and now in most cases I apprehend should sign 20 it also. 2 The use of seals, as a mark of authenticity to letters and other instruments in writing, is [305] extremely ancient. We read of it among the Jews and Persians in the earliest and most sacred records of history. (z) And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase. (a) In the civil law also, (b) seals were the evidence of truth; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use in England. For though sir Edward Coke (c) relies on an instance of king Edwin's making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation and perhaps the charter he mentions may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. thod of the Saxons was for such as could write to subscribe their names, and whether they could write or not, to affix the sign of the cross; which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of his charters. (d)

y 2 Rep. 3. 9. 11 Rep. 27.

z 1 Kings, c. 21. Daniel, c. 6. Esther, c. 8.

The me

a" And I bought the field of Hananeel, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took witnesses, and weighed him the money in the balauces. And I took the evidence of the purchase, both that which was scaled according to the law and custom, and also that which was open." c. 32.

b Inst. 2. 10. 2 & 3.

c 1 Inst. 7.

d" Propria manu pro ignorantia literarum signum sanctae crucis expressi et subscripsi." Seld. Jan. Angl. 2.1. $42. And this (according to Procopius), the emperor Justin in the east, and Theodore king of the Goths in Italy, had before authorized by their example, on account of their inability to write.

Where a deed purported to bear date on the 20th of November, and was executed by one of two defendants on the 16th of that month, and by the other on a previous day, it was held to be immaterial, it not appearing that a blank was left for the date at the time of the execution. 6 Moore, 483. A person may declare in covenant that the deed was indented, made, and concluded, on a day subsequent to the day on which the deed itself is stated on the face of it to have been indented, made, and concluded. 4 East, 477. And where there is no date to a deed, and it directs something to be done within a certain time after its supposed date, the time will be ca culated from the delivery. 2 Ld. Raym. 1076. And see Bac. Ab. Leases, I. 1. Coin. Dig. Fait, B. 3. Chitty.

(19) 2 Co. 3. 9. 12 Co. 90. Skin. 158. 2 Atk. 327. 8 T. R. 147. Com. Dig. Fait, B. 2. (20) See in general, Com. Dig. Fait, A. 2. Sealing must be averred in pleading. 1 Saund. 290. n. 1. If A. execute a deed for himself and his partner by the authority of his partner, and in his presence, it has been held a good execution, though only sealed once, 4 T. Ř. 313. 3 Ves. 578. though it is an established rule, that one partner cannot bind the other partners by deed. 7. T. R. 207. A person executing a deed for his principal, should sign in the name of the principal, 6 T. R. 176. or thus, "for A. B. (the principal), E. F. his attorney." 2 East, 142. (21) Signing seems unnecessary unless in cases under the statute of frauds and deeds executed under powers. Com. Dig. Fait, B. 1. 17 Ves. J. 459. Christian.

In like manner, and for the same unsurmountable reason, the Nor[306] mans, a brave but illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names: which custom continued, when learning made its way among them, though the reason for doing it had ceased; and hence the charter of Edward the Confessor to Westminster-abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England. (e) At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross. (f) And in the reign of Edward I. every freeman, and even such of the more substantial villeins as were fit to be put upon juries, had their distinct particular seals. (g) The impressions of these seals were sometimes a knight on horseback, sometimes other devices: but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the First, who brought them from the croisade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every Christian nation who resorted thither, and who who could not, when clad in complete steel, be otherwise known or ascertained.

This neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed: and so the common form of attesting deeds," sealed and delivered," continues to this day; notwithstanding the statute 29 Car. II. c. 3. before mentioned revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds: in which therefore signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other. (h) 22

A seventh requisite to a good deed is, that it be delivered by the party

e Lamb. Archeion. 51.

"[ Normanni chirographorum confectionem, cum crucibus aureis, aliisque signaculis sacris, in Anglia fismari solitam, in caeram impressam mutant, modumque scribendi Anglicum rejiciunt." Ingulpb.

g Stat. Exon. 14 Ed. 1.

h2 Lev. 1. Sira. 764.

(22) By 29 Car. II. c. 3. referred to above in the text, all leases and agreements, which are required to be in writing, must be signed by the party, or an agent lawfully authorized. With respect to leases and agreements specified in the first section, the agent must be authorized by writing, but in the fourth and seventeenth sections the words by writing are omitted, and a parol authority to the agent will be sufficient with respect to the contracts therein enumerated. (23) Com. Dig. Fait, A. 3. & B. 5. Delivery is absolutely necessary to a deed, for it is a mere instrument under seal, not a deed, before delivery. The delivery by the party of the instrument as his act and deed is the formal declaration of his determination to complete the conveyance, or enter into the contract. See Sharrington v. Shotton, Plowd. 308. When a man passes a thing by deed, first there is the determination of the mind to do it, and upon that he causes it to be written, which is one part of deliberation; and afterwards he puts his seal to it, which is another part of deliberation; and lastly, he delivers the writing as his deed, which is the consum mation of his resolution; and by the delivery of the deed from him that makes it to him to whom it is made, he gives his assent to part with the thing contained in the deed to him to whom he delivers the deed, and this delivery is as a ceremony in law, signifying fully his good will that the thing in the deed should pass from him to the other. So that there is great deliberation used in the making of deeds, for which reason they are received as a lien final to the party, and are adjudged to bind him without examining for what cause or consideration they were made." With regard to the delivery of a deed, no particular form or ceremony is necessary; it will be sufficient if a party testifies his intention in any manner, whether by action or word, to deliver or pat it into the possession of the other party, as by throwing it down upon the table, with the intent that it may be taken up by the other party; or if a stranger deliver it with the assent of the party to the deed. Phil. Ev. 449. 9 Rep. 137. a. Com. Dig. tit. Evidence. (A. 3.) Proof that a party signed a deed which bears on the face of it a declaration that the deed was sealed by the party,

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Commentaries on the Laws of England, Band 1