himself or his certain attorney, which therefore is also expressed in the attestation; "sealed and delivered." A deed takes effect only [307] from this tradition or delivery; for if the date be false or impossible, the delivery ascertains the time of it. And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing, (i) and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, to hold till some conditions be performed on the part of the grantee in which last case it is not delivered as a deed, but as an escrow; that is, as a scrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purposes. (j) 21 The last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses: though this is necessary, rather for preserving the evidence, than for constituting the essence of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia testata mentioned by the feodal writers, (k) which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only become the foundation of frequent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names (that not being always in their power), but they only heard the deed read; and then the clerk or scribe added their names, in a sort of memorandum; thus: "hijs testibus Johanne Moore, "Jacobo Smith, et aliis, ad hanc rem convocatis."(1) This, like all other solemn transactions, was originally done only coram paribus, (m) and frequently when assembled in the court-baron, hundred, or county-court; which was then expressed in the attestation, teste comitatu, hundredo, &c. (n) Afterwards the attestation of other witnesses was allowed, the trial in case of a dispute being still reserved to the pares; with whom the witnesses (if more than one) were associated and joined [308] in the verdict; (o) till that also was abrogated by the statute of i Perk. § 130. j Co. Litt. 36, is when the testimony of a subscribing witness cannot be obtained, or when he has no recollection on the subject, evidence to be left to a jury that the party sealed and delivered the deed. 7 Taunt. 251. 2 Marsh. 527. and see 17 Ves. J. 439. Peake R. 146. It is a question of fact for the jury upon the whole evidence, whether a bond was delivered as a deed to take effect from the moment of delivery, or at some future time. In Murray v. Earl Stair, Abbott, C. J. told the jury, that "to make the delivery conditional, it was not necessary that any express words should be used at the time, the conclusion was to be drawn from all the circumstances. It obviated all question as to the intention of the party, if at the time of delivery he expressly declared, that he delivered it as an escrow, but that was not essential to make it an escrow." 2 B. & C. 88. See also 4 B. & A. 440. Chitty. (24) It is not essential to the validity of a deed, in general, that it should be executed in the presence of a witness. Com. Dig. Fait, B. 4. Phil. on Evid. 413 to 421. 4th ed. And where the names of two fictitious persons had been subscribed by way of attestation, the judge permitted the plaintiff, who had received the deed from the defendant in that deceitful shape, to give evidence of the hand-writing of the defendant himself; and where the subscribing witness denied any recollection of the execution, proof of his hand-writing was deemed sufficient. Peake Rep. 23. 146. 2 Camp. 635. The distinction between executions of deeds at common law, and executions under powers, is fully established. It is a well known rule, that all the formalities and circumstances prescribed by a power are to be strictly observed. If a particular number of attesting witnesses is required, there must be that number. If they are to attest in a particular form, that form must be followed; and they must attest every thing that is necessary for the execution of the power. 4 Taunt. 214. 7 Taunt. 361. 17 Ves. 454. S. C. Also Sugden on Powers. But the 54 Geo. III. c. 168. aids the omission of a memorandum of attestation, when in fact the deed has been duly attested. York, 12 Edw. II. st. 1. c. 2. And in this manner, with some such clause of hijs testibus, are all old deeds and charters, particularly magna carta, witnessed. And in the time of sir Edward Coke, creations of nobility were still witnessed in the same manner. (p) But in the king's common charters, writs, or letters patent, the style is now altered: for at present the king is his own witness, and attests his letters patent thus: "Teste "meipso, witness ourself at Westminster, &c." a form which was introduced by Richard the First, (q) but not commonly used till about the beginning of the fifteenth century; nor the clause of hijs testibus entirely discontinued till the reign of Henry the Eighth: (r) which was also the æra of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general; and therefore ever since that time the witnesses have usually subscribed their attestations, either at the bottom, or on the back of the deed. (s) III. We are next to consider, how a deed may be avoided, or rendered of no effect. And from what has been before laid down it will follow, that if a deed wants any of the essential requisites before-mentioned; either, 1. Proper parties, and a proper subject-matter: 2. A good and sufficient consideration; 3. Writing on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing, and, by the statute, in most cases signing also or, 7. Delivery; it is a void deed ab initio. It may also be avoided by matter ex post facto: as, 1. By rasure, interlining, or other alteration in any material part: unless a memorandum be made thereof at the time of the execution and attestation. (t) 25 2. By breaking off, or de facing the seal. (u) 26 3. By delivering it up to be cancelled; that [309] is, to have lines drawn over it in the form of lattice-work or can celli; though the phrase is now used figuratively for any manner of obliteration or defacing it. 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand as the husband, where a feme-covert is concerned; an infant, or person under duress, when those disabilities are removed; and the like. 5. By the judgment or decree of a court of judicature. This was anciently the province of the court of star-chamber, and now of the chancery: when it appears that the r Ibid. Dissert. fol. 92. p 2 Inst. 77. s 2 Inst. 78. See pag. q Madox. Formul. N° 515. u 5 Rep. 23. (25) See in general, Com. Dig. Fait, F. A deed may be considered as an entire transactio a operating as to the different parties from the time of execution by each, but not perfect till the execution by all. Any alteration made in the progress of such a transaction still leaves the deed valid as to the parties previously executing it, provided the alteration has not affected the situ ation in which they stood. As thus, when A. executed there were blanks, which were filled up and interlineations made before B. executed, but as the filling up and interlineations did not affect A. the conveyance to C. was valid. 4 B. & A. 675. Chitty. (26) See in general, Com. Dig. Fait, F. 2. It must be an intentional breaking off or defacing by the party to whom the other is bound, for if the person bound break off or deface the seal, it will not avoid the deed. Touchstone, c. 4. s. 6. 2. And if it appear that the seal has been affixed and afterwards broken off or defaced by accident, the deed will still be valid. Palm. 405. And the defacing or cancelling a deed will not in any case divest property which has once vested by transmutation of possession. 2 Hen. Bla. 263.; and see 4 B. & A. 675. If several join in a deed and be separately bound thereby, the breaking off the seal of one, with intent to discharge him from future liability, will not alter the liability of the others. 1 B & C. 682. (27) But when an estate has passed by the deed, the merely cancelling it will not suffice, but there must be a reconveyance, or in case of a lease, a surrender. 6 East, 86. 4 B. & A. 465. (28) The courts of common law are equally competent to nullify the deed in such case, upon the principle that the mind not assenting, it is not the deed of the party sought to be charged by it; and there is no occasion to resort to a court of equity for, relief, when evidence at law can be adduced, 2 T. R. 765. deed was obtained by fraud, force, or other foul practice; or is proved to be an absolute forgery. (w) In any of these cases the deed may be voided, either in part or totally, according as the cause of avoidance is more or less extensive. And, having thus explained the general nature of deeds, we are next to consider their several species, together with their respective incidents. And herein I shall only examine the particulars of those, which from long practice and experience of their efficacy, are generally used in the alienation of real estates for it would be tedious, nay infinite, to descant upon all the several instruments made use of in personal concerns, but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former being, principally such as serve to convey the property of lands and tenements from man to man, are commonly denominated conveyances; which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses. I. Of conveyances by the common law, some may be called original, or primary conveyances; which are those by means whereof the benefit or estate is created or first arises: others are derivative, or secondary: whereby the benefit or estate originally created, is enlarged, restrained, transferred, or extinguished. Original conveyances are the following; 1. Feoffment; 2. Gift; [310] 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance. 29 1. A feoffment, feoffamentum, is a substantive derived from the verb, to enfeoff, feoffure or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi (x) It is the most ancient method of conveyance. the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feoffor; and the person enfeoffed is denominated the feoffee. This is plainly derived from, or is indeed itself the very mode of, the ancient feodal donation; for though it may be performed by the word, enfeoff" or "grant," yet the aptest word of feoffment is, " do or dedi." (y) And it is still directed and governed by the same feodal rules; insomuch that the principal rule relating to the extent and effect of the feodal grant, "tenor est qui legem dat feudo," is in other words become the maxim of our law with relation to feoffinents, "modus legem dat donationi.” (z) And therefore, as in pure feodal donations the lord, from whom the feud moved, must expressly limit and declare the continuance or quantity of estate which he meant to confer, " ne quis plus donasse praesumatur quam in donatione expresserit ;" (a) so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) hath barely an estate for life. (b) For as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the feoffee's estate ought to be confined to his person, and subsist only for his life; [311] unless the feoffor, by express provision in the creation and constitution of the estate, hath given it a longer continuance. These express pro y Ibid. w Toth. numo. 24. 1 Vern. 348. x Co. Litt. 9. a pag. 108. b Co. Litt. 42. (29) See in general, Com. Dig. Feoffment; 2 Saunders, index, Feoffment. visions are indeed generally made; for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple, (c) by giving the land to the feoffee, to hold to him and his heirs for ever; though it serves equally well to convey any other estate or freehold. (d) But by the mere words of the deed the feoffment is by no means perfected, there remains a very material ceremony to be performed, called livery of seisin; without which the feoffee has but a mere estate at will. (e) This livery of seisin is no other than the pure feodal investiture, or delivery of corporeal possession of the land or tenement; which was held absolutely necessary to complete the donation. "Nam feudum sine investitura nullo modo constitui potuit:" (f) and an estate was then only perfect, when, as the author of Fleta expresses it in our law, “fit juris et seisinae conjunctio." (g) Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord; and that he did not grant a bare litigious right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or accurately retained in the memory of by-standers, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate; and that such, as claimed title by other means, might know against whom to bring their actions. In all well-governed nations some notoriety of this kind has been ever held requisite, in order to acquire and ascertain the property of lands. [312] In the Roman law plenum dominium was not said to subsist, unless where a man had both the right and the corporal possession; which possession could not be acquired without both an actual intention to possess, and an actual seisin, or entry into the premises, or part of them in the name of the whole. (h) And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possession is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists, (i) acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in dignities possession is given by instalment; in rectories and vicarages by induction, without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised. (*) It is not therefore only a mere right to entry that makes a man complete owner; so as to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem. (1) Yet, the corporal tradition of lands being sometimes inconvenient, a sym c See Appendix, No I. d Co. Litt. 9. f Wright, 37. gl. 3. c. 15. § 5. e Litt. § 66. h Nam apiscimur possessionem corpore et animo; neque per se corpore, neque per se anisno. Non autca ita accipiendum est, ut qui fundum possidere velit, omnes glebas circumambulet; sed sufficit qamlibet partem ejus fundi introire. (Ff. 41. 2. 3.) *And again: traditionibus dominia rerum, nonnudis pactis, transferun tur. (Cod. 2. 3. 20.) i Decretal, 7, 3. t. 4. c. 40. * See pag. 209, 227, 228. 1 Flet. 1. 6. c. 2. § 2. bolical delivery of possession was in many cases anciently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing design ed to be conveyed; and an occupancy of this sign or symbol was [313] permitted as equivalent to occupancy of the land itself. Among the : Jews we find the evidence of a purchase thus defined in the book of Ruth (m) "now this was the manner in former time in Israel, concerning "redeeming and concerning changing, for to confirm all things: a man "plucked off his shoe and gave it to his neighbour; and this was a testi"mony in Israel." Among the ancient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses. (n) With our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish the conveyance of lands. (o) And to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchasor by re-delivery of the same, in the presence of a jury of tenants. Conveyances in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolical, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimit- [314] ed dominion. Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed; yet still, for a very long series of years, they were never made use of, but in company with the more ancient and notorious method of transfer, by delivery of corporal possession. Livery of seisin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impossible to be made; for they are not the object of the senses; and in leases for years, or other chattel interests, it is not necessary. In leases for years indeed an actual entry is necessary, to vest the estate in the lessee: for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini: and when he enters in pursuance of that right, he is then, and not before, in possession of his term, and complete tenant for years. (p) This entry by the tenant himself serves the purpose of notoriety, as well as livery of seisin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, because they m ch. 4. v. VOL. I. n Stiernhook, de jure Sucon. 1. 2. c. 4. o Hickes, Dissert. Epistolar. 85. |