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Chap. 20.] REQUISITES to a DEED

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Chap. 20.] REQUISITES to a DEED Chap. 20.] REQUISITES TO A DEED. 295 CHAPTER XX. OF ALIENATION BY DEED. IN treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requi- sites; and, thirdly, how it may be avoided. I. First, then, a deed is a writing sealed and delivered by the parties.(a) It is sometimes called a charter, carta, from its materials; but most usually when applied to the transactions of private subjects, it is called a deed, in Latin factum, xar' e$oX-q , because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property ; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed.(b) If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such manner as to leave half the word on *one part and half on the [,296] other. Deeds thus made were denominated syngrapha by the canon- [2] ists; (c) and with us chirographa,or hand-writings; (d) the word cirographum or cyrographum being usually that which is divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called, the original,and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed.(e) (1) II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with for the purposes intended by the deed: and also a thing, or subject-matter to be contracted for; all which must be expressed by sufficient names.(f) So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised. Secondly, the deed must be founded upon good and sufficient consideration. Not upon an usurious contract; (g) nor upon fraud or collusion, either to deceive purchasers bona fide,(h) or just and lawful creditors; (i) any of which bad considerations will vacate the deed, and subject such persons as put the same in ure, to forfeitures, and often to imprisonment. (2) A deed also, or other a Co. Litt. 171. (b) Plowd. 434. (c) Lyndew. 1. 1, t. 10, c. 1. (d) Mirror, c. 2, § 27. (e) Mirror, c. 2, § 27. Litt. ff 371, 372. (f) Co. Litt. 85. (g) Stat. 13 Eliz. c. 8. (h) Stat. 27 Eliz. c. 4. (i) Stat. 13 Eliz. c. 5. (1) Generally, at the present time, deeds for the conveyance of lands simply, though called indentures, are executed only by the grantors, and counterparts are not made and not needful. (2) But a deed in fraud of purchasers or creditors is not void as between the parties thereto, nor even as to third persons who are not concerned in the fraud. Only the parties who would be defrauded by it can allege it§ invalidity, and as to them it is avoided only so far as is needful for their protection. 296 REQUISITES TO A DEED. [Book II. grant, made without any consideration, is, as it were, of no effect: for it is con- strued to enure, or to be effectual, only to the use of the grantor himself.(c) (3) [*297] The consideration may be either *a good or a valuable one. A good consideration is such as that of blood, or of natural love and affec- tion, when a man grants an estate to a near relation; being founded on motives of generosity., prudence, and natural duty; a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant: (1) and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona.fide purchasers.(4) Thirdly; the deed must be written, or I presume printed,(5) for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed.(m) Wood or stone may be more durable, and linen less liable to erasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration: nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II, c. 3, enacts, that no lease-estate or interest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value), shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid; unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized in writing.(6) (k) Perk. j 533. (1) 3 Rep. 83. (m) Co. Litt. 229. F. N. B. 122. (3) [This sentence is not quite accurately worded: from the expression "deed or other grant,' it might be inferred that a deed was a species of grant, whereas a grant is only one mode of conveyance by deed: next, it is not true that all deeds, or all grants made without consideration, are of no effect, for 1st, as to all deeds which operate at common law, or by transmutation of possession, tha~t they will be valid at law to pass the estates they profess to pass, as against the grantor, though made without any consideration; and secondly as to deeds which operate under the statute of uses, they create a use which results to the grantor. To all appearance, indeed, no change is made in the grantor's title or rights by such a deed, yet that it is without effect in law cannot be said, because it works such an alteration in the grantor's estate from that which he had before, that any devise of the lands made before the the will be republished, that is, in fact, new made.date of1 the deed, will have no effect, unless (4) This rule does not obtain in the United States. A deed purely voluntary is perfectly valid as against any subsequent purchaser from the grantor, who buys with notice, whether the notice be actual, or such as the law implies from the recording of the prior deed. 4 Kent, 463; Jackson v. Town, 4 Cow. 603; Salmon v. Bennett, 1 Conn. 525; Bennett v. Bedford Bank, 11 Mass. 421; Ricker v. Ham, 14 id. 137; Cathcart v.Robinson, 5 Pet. 280; Atkinson v.Phillips, 1 Md. Ch. Dec. 507; Beal v.Warren, 2 Gray, 447; Douglas v.Dunlap, 10 Ohio, 162. (5) [Coin Dig. Fait, A; 3 Chitty's Com. L. 6. There seems no doubt that it may be printed, and that if signatures be requisite the dame of a party in print at the foot of the instrument would suffice. 2 M. and S.288; 2 Bos. and P. 238.] (6) Nevertheless courts of equity have long been in the practice of enforcing the specific performance of parol contracts for the sale of lands, where there have been such acts of part performance as preclude the parties being placed in statu quo, and where, under the circum- stances, it is equitable that such performance should be decreed. See Fry on Specific Perform- ance; Story Eq. Juris. §§ 712-799.
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