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The Conveyance of Estates in Fee by Deed : Being a Statemennt of the Principles of Law Involved in the Drafting and Interpretati

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The Conveyance of Estates in Fee by Deed : Being a Statemennt of the Principles of Law Involved in the Drafting and Interpretati CHAPTER III. THE DEED . $ 19. Definition and characteris- $ 26 . Reasons for considering set tics of the deed . tled forms. 20. Kinds of deeds - At common 27 . The deed conveys a present law - Under the statutes of interest - To be distin uses . guished from other instru 21 . Kinds -- Indenture – Deed ments . poll. 28 . Deeds distinguished from 22 . Indenture - Deed poll - contracts to convey . Forms . 29 . Deeds distinguished from 23 . Indenture – Deed poll instruments testamentary Other differences in forms. in character . Statutory 24. Indenture – Deed poll 30 . forms of deeds . Difference in effect. 31 . The parts of a deed . 25. Modern tendency to shorten deeds . § 19 . Definition and characteristics of the deed . — It will be noticed that while such statutes as those referred tot provide for the conveyance of interests in real prop its erty by deed , they neither define “ deed " nor state all essentials . , , There are it is true in about one half the states short , statutory forms of conveyances that may be used and the statute prescribes their effect , but they are not , adapted by form to be used in all cases and no statute provides that such forms must be used . la Statutes provide also certain things that are essential in the execution of conveyances to make them valid or to , , entitle them to record but such statutes while of great , practical importance relate to a part only of the convey ance . , , 18 post $ * Ante $ 16 . See 30 . ( 18 ) $ 19 THE DEED . 19 What a deed is , therefore , is generally to be deter mined by the rules of the common law . While it is desirable when possible to define legal terms, it is by no means easy to define a deed — to state concisely its essential characteristics so that the statement shall be both properly inclusive and exclusive . Washburn says : “ A deed is defined to be a writing containing a contract sealed and delivered by the party thereto ." 2 This and most modern definitions appear to be based on Coke's definition : “ A deed signifieth in the common law an instrument consisting of three things , viz .: writing , sealing and delivery comprehending a bargain between party and party . ” 28 Coke also enumerates the ten requisites of a deed as follows : ( 1 ) a writing ; ( 2 ) in parchment or paper ; ( 3 ) a person able to contract ; ( 4 ) by a sufficient name; ( 5 ) a person able to be contracted with ; (6 ) by a sufficient name ; ( 7 ) a thing to be contracted for ; ( 8 ) apt words required by law ; ( 9 ) sealing ; ( 10 ) delivery . One of the noticeable points in the foregoing and simi lar definitions is the prominence given to “ contract" and “ bargain . ” But as pointed out in an interesting English decision ,3 where the question was as to whether there had been a “ felonious forging of a deed , ” the alleged deed being " letters of orders " by a bishop , under his seal, the term is clearly not confined to contracts . There may be a valid conveyance by deed of lands to an infant who cannot con tract . Such definitions and descriptions as the following , which are often seen , are , strictly speaking , incomplete and inaccurate : “ A writing under seal by which lands , tenements , or , , ? Real Prop ., III 6th ed . $ 2086 . , is Co . Lit . 171 b . ; , 456 . C . C . 12 S . ) . R . ( N . 28 L . T . v . * Reg Morton 452 Cox 20 THE LAW OF CONVEYANCING ., $ 19 hereditaments are conveyed for an estate not less than a by freehold ” ' - ( lands are not conveyed the writing — the ; writing is not a deed till delivered ) “ deed includes all varieties of sealed instruments ” — ( a magistrate ' s warrant , or a will may be sealed instruments but they are not deeds ) . It seems difficult to improve on the following defini tion : , ; “ A deed is a writing sealed and delivered or to speak , more particularly it is a writing done on paper or parch , , ment testifying to the performance by some person , named therein of some act in the law ( such as the con , veyance of property or the making of a contract ) authen , ticated by the seal of the person to be bound thereby and delivered to the person intended to benefit thereun der . " 4 The prominent features of the deed are : ( a ) Writing testifying to the performance of some act , in the law : i . e . the instrument must be wholly written , before delivery - must not be incomplete with blanks left ; to be afterward filled in 5 the writing — set forth with certainty - testifies to some act intended to affect the . in party ' s position the law ( b ) Seal : Of vital importance at common law — and it will appear later that the doctrines associated with the by seal are not easily disposed of modern statutes “ abol ishing ' ' seals . ( c ) Delivery : Always important and without which the most complete and formal writing is not a deed - fac , ; , tum a thing done no title passes without it and whether there has been delivery is a constantly recurring ques 6 tion . , , , In its broad signification “ deed ” applies of course to many instruments in the law besides “ conveyances . " , p * Ency . Laws Eng . IV . 171 . , p 5 Shep . Touch . 54 . , 6 See post ch . XIX . § 20 THE DEED . 21 We shall deal, however , with deeds of conveyance , and in using the term deed , it will be generally used in its , popular sense as the formal instrument prepared but not necessarily delivered . $ 20 . Kinds of deeds - At common law - Under the Statute of Uses . - According to English law as it existed when this country was settled there were several different , kinds of deeds each having its appropriate use and effect . The general rules relating to them were introduced here , with other parts of the law and while many of the old , rules are obsolete it is still necessary at times to recur to them to appreciate the effect of modern conveyances or to understand modern statutes and decisions . At present it may suffice to simply classify and enu . merate them . The so - called common law deeds were : , The original or primary deeds ( i . e . deeds creating , , ; ; estates ) feoffment creating a fee simple gift creating , ; a fee tail grant creating an estate in incorporeal real , ; of property lease creating an estate less than that , ; grantor exchange creating mutual estates in consider ; , ation of each other partition creating estates in sev ; eralty out of estates in joint tenancy or in common , and the derivative or secondary deeds ( i . e . deeds modi , fying estates already created ) : release conveying to present particular tenant the estate in remainder or re , ; version surrender conveying to remainderman or rever sioner the present particular estate ; confirmation , render ; , ing a voidable estate sure and unavoidable assignment ; , transferring the whole of an existing estate defeasance declaring conditions upon which an accompanying deed is to be defeated . ? Besides these common law deeds there were certain deeds which derived their force and effect as legal convey , pp * The foregoing discussed 2 Bl . Comm . 310 - 327 . 22 THE LAW OF CONVEYANCING . § 21 ances from the Statute of Uses. These were : bargain and sale , covenant to stand seised to uses , and lease and re lease ; the last, being really composed of two instruments , is sometimes not classed as a deed by itself ; but, as the lease was made in order that a release might immediately afterward be made , and as the purpose of the whole transaction was to convey , it is called by most authorities “ conveyance by lease and release . ” 8 . § 21 . Kinds — Indenture - Deed poll. — A further classi fication arises from a difference in the number of the par ties executing the deed . An indenture is or purports to be a deed between two or more parties ; a deed poll is or purports to be the deed of one party . Indentures were formerly in at least two parts written on the same parchment and afterward separated by cut ting in an indented line; often before the parchment was cut a word was written along the line of division : the parts were called counterpanes or counterparts , and when put together made the deed ; they were at one time inter changeably executed , the one part by one party and the other by the other party and exchanged ; then the prac tice grew up of having each part executed by all the par ties , making them “ duplicate originals ” ; where each part was not executed by all parties, that part executed by the party from whom the estate moved was sometimes called the original and that executed by the party accept ing the estate was called the counterpart. º American in dentures were formerly actually indented as sold by the stationer, but the practice became obsolete . In 1845 it was enacted in England that a deed purporting to be an indenture need not be actually indented . 10 338 - 8 2 Appendix of Bl. Comm . and for form lease and release . See , . ante $ 13 , , , ; 9 v . 2 . & . 40 . Atherstone Bostock Man Gr 511 518 note Eng C . L . , Rep . 722 note . , 10 8 & 9 . ch . Vict 106 § 22 THE DEED . 23 Deeds poll were so called because they were formerly polled or cut even and not indented . § 22 . Indenture - Deed poll - Forms. — Because these deeds were executed , the one kind by the several parties to it, and the other kind by but one , there was naturally a difference in form , and this difference is still main tained , though the method of execution of the two kinds may not always differ. The indenture commences as follows : This Indenture , made the — day of — , in the year one thousand , etc . , - , between A B , of ( town , county , party part, , , and state ) of the first and X Y of — party of the second part, witnesseth , that, etc .
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