[* 477]

*CHAPTER XXI.

ALIENATION BY DEED.

IN treating of deeds we will consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents, and the manner in which they take effect. And, in explaining the former, we will examine, first, what a deed is; secondly, its requisites; and thirdly, how it may be avoided. (342)

*

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 I. What is a deed. a deed, in Latin factum, xar' ¿oxv, 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 at law, by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemnly and deliberately avowed, though in equity this rule is not adhered to when justice requires otherwise (b). If a deed be made by more parties than one, there ought to be [* 478] 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 (c). 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 a manner as to leave half the word on one part, and half on the other. Deeds thus made were denominated syn

Indenture.

(a) Co. Litt. 171. As to estoppel at law. Veale v. Warner, 1 Wms..Saund, 325; Cros8ley v. Dixon, 10 H. L. Cas. 293; Phillpotts v. Phillpotts, 10 C. B. 85. As an example of the course a court of equity takes to secure justice, notwithstanding the expressions in a deed, see Mackreth v. Symmons, 15 Ves. 328,

where the doctrine of a vendor retaining a lien upon an estate for unpaid purchasemoney, notwithstanding the deed expressed it to be paid, was much discussed and established.

(b) Plowd. 434.
(c) Co. Litt. 143.

(342) It may be assumed that all of the States have statutes relating to the requisites of deeds. Many, and perhaps most of these statutes refer directly or indirectly to the commonlaw modes of conveyance. In preparing or executing deeds, or in giving them a construction, it will be necessary to examine and consider the statutes of the State in which the conveyed lands are situated. Before considering in detail the general requisites of a deed, it may be well to notice some essential particulars in relation to the conveyance of lands. In this country it is the general policy of the laws to favor and facilitate the sale and transfer of real estate. But there is one restriction upon the sale of real estate which prevails quite extensively, if not generally, in the several States; this restriction is a prohibition of the sale of pretended titles, or the sale of lands which are not in the possession of the grantor, but are in the possession of a third party, who claims to hold them adversely to the grantor. See 4 Kent's Com. 446 to 450, and notes.

Such sales of land held adversely are, as a general rule, void in those States in which they are prohibited (see 4 Kent's Com. 448 to 450, and notes), though the deed may be good and pass the title as between the grantor and the grantee. Ib.

Original and counterpart.

grapha by the canonists (d); and with us chirographa, or handwritings (e); the word cirographum or cyrographum being usually that which was divided in making the indenture. But at length indenting only has come into use, without cutting through any letters at all; and even this now serves no other purpose than to give a name to the species of the deed (ƒ). And the legislature has declared that a deed purporting to be an indenture shall have the effect of one, whether actually indented or not (g). 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 was not indented, but polled or shaven quite even; and therefore called a deed-poll, or a single deed (h). The distinction between indentures and deeds-poll was formerly important, as it was held that every person who took an immediate benefit under an indenture must be a party to it, whereas this was not the case under a deed-poll, to which, indeed, there being only the grantor a party, it would have been inoperative if the same rule had applied. ground of distinction is now done away with, for by the act just referred to, any person not a party to an indenture may take an immediate interest under it. The only essential importance which now remains in the question as to whether an instrument ought to be a deed-poll or indenture depends upon the necessities imposed by acts of parliament (i).

Deed-poll.

[* 479] This

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 contracRequisites of a deed. ted with, for the purposes intended by the deed (k): (343) and

(d) Lyndew. 1. 1, t. 10, c. 1.

(e) Mirror, c. 2, s. 27; Co. Litt. 143, 4. (f) See Butl. Co. Litt. 229 a, n. Com. Dig. Fait, C. 1.

(g) 8 & 9 Vict. c. 106, s. 5.

(h) lb. Litt. s. 371, 372.

(i) See 27 Hen. 8, c. 16; 32 Hen. 8, c. 28; 8 & 9 Vict. c. 18, s.81 ; 19 & 20 Vict. c. 120, s. 34. (k) Dand v. Kingscote, 6 M. & W. 174, 200.

(343) To render a deed valid the parties to it must be legally competent to contract, and they must be truly and sufficiently described. Where the grantor is legally incompetent, his deed may be absolutely void, or it may be merely voidable. And the tendency of modern adjudications is to hold them voidable rather than void.

It is a general rule that the deed of a married woman is void, unless joined in the deed by her husband, or unless authorized by statute to convey the lands without her husband. Lowell v. Daniels, 2 Gray, 161; Perrine v. Perrine, 3 Stockt. (N. J.) 142, 144; Cope v. Meeks, 3 Head. 388; Baxter v. Bodkin, 25 Ind. 172; Shumaker v. Johnson, 35 id. 33; Davis v. Andrews, 30 Vt. 681; Beckman v. Stanley, 8 Nev. 257; Hoyt v. Swar, 53 Ill. 134; Dunham v. Wright, 53 Penn. St. 167; Ezelle v. Parker, 41 Mo. 520; Dow v. Jewell, 18 N. H. 340; Camden v. Vail, 23 Cal. 633.

To render a conveyance of land valid, there must be a grantee competent to take it; therefore, a deed of land to the trustees de facto of an unincorporated religious society does not convey any title to the society. Bundy v. Birdsall, 29 Barb. 31; see, also, Jackson v. Cory, 8 Johns. 385; Hornbeck v. Westbrook, 9 id. 73; German Land Association v. Scholler, 10 Minn. 331; Sloane v. McConahy, 4 Ohio, 157; Thomas v. Marshfield, 10 Pick. 364.

A deed executed by a person of non-sane mind, whether insane, imbecile or an idiot, is voidable. Wait v. Maxwell, 5 Pick. 217; Griswold v. Butler, 3 Conn. 231; Ingraham v. Bald win, 9 N. Y. (5 Seld.) 45; Breckenridge v. Ormsby, 1 J. J. Marsh. 245; Hovey v. Hobson, 53 Me. 451, 456; Miles v. Lingerman, 24 Ind. 387; Doe v. Prettyman, 1 Houst. 339; Dennett v. Dennett, 44 N. H. 538.

VOL. I.-91

also a thing or subject-matter to be contracted for; all which must be expressed 1. Parties and by sufficient names (7). So, as in every grant there must be a subject-matter. grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised. (344)

2. Consideration.

Secondly, the deed must be founded upon good and sufficient consideration.

As to what is a good consideration, sufficient to support the deed, it is in some cases difficult to determine. (345) A grant, made without any consideration, is, as it were, of no effect: for it is construed to enure, or to be effectual, only to the use of the grantor himself (m). (346) Yet mere inadequacy of consideration, where there is no fiduciary relation between the parties, is (2) Co. Litt. 35.

(m) Perk. s. 533.

So of the deed of an infant. Kendall v. Lawrence, 22 Pick. 540; Bool v. Mix, 17 Wend. 119; Roof v. Stafford, 7 Cow. 180; Phillips v. Green, 3 A. K. Marsh. 11; Tucker v. Moreland, 10 Pet. 58.

In regard to the names of the parties to a deed, it may be stated that it is not absolutely necessary to name the grantee, if he be so designated that it is certain who is intended; and therefore, a deed to A. or his heirs is good, for if A. is alive he has no heirs, and if dead his heirs can be ascertained, aliunde. Ready v. Kearsley, 14 Mich. 225; Hogan v. Page, 2 Wall. 607; see, also, Boone v. Moore, 14 Mo. 420; Moore v. Carpenter, 19 Vt. 613.

(344) A proper designation or description of the lands granted is an essential part of a deed, for if the subject of the grant cannot be ascertained from the description in the deed, the grant will be void. Wofford v. McKinna, 23 Tex. 36, 44; Lessee of Massie's Heirs v. Long, 2 Ohio, 287; Erwin v. Helm, 13 Serg. & Rawle, 151; Haven v. Crane, 1 N. H. 93; Bal lance v. Forsyth, 13 How. (U. S.) 18, 23.

"In the description of the land conveyed, the rule is, that known and fixed monuments control courses and distances. So, the certainty of metes and bounds will include and pass all the lands within them, though they vary from the given quantity expressed in the deed. The least certain and material parts of the description must yield to those which are the most certain and material, if they cannot be reconciled; though in construing deeds the courts will give effect to every part of the description, if practicable." 4 Kent's Com. 466. The lines of the lot will be run by the needle if there is nothing in the deed to control the courses and distances. White v. Gay, 9 N. H. 126; Brooks v. Tyler, 2 Vt. 348; Pernam v. Wead, 6 Mass. 131; Higley v. Bidwell, 9 Conn. 447: Clark v. Wethey, 19 Wend. 320; Lessee of Wyckoff v. Stephenson, 14 Ohio, 13, 15, 17; Trammell v. Nelson, 2 Harr. & McHen. 4; Doe v. Porter, 3 Ark. 18, 57; Welch v. Phillips, 1 McCord, 215; Preston v. Bowmar, 6 Wheat. 580. If the land is described by definite boundaries, or its quantity is qualified by the words more or less," or other similar words, the statement is a mere matter of description, and the buyer takes the risk of the quantity, if there is no fraud in the transaction. Faure v. Martin, 7 N. Y. (3 Seld.) 210; Noble v. Goggins, 99 Mass. 231; Wearb v. Rose, 1 C. E. Green, 290, 297; Slothower v. Gordon, 23 Md. 1; Stebbins v. Eddy, 4 Mason, 414.

"

(345) One of the first requisites of a consideration is that it be legal, for if it be of an immoral or illegal nature, the deed will be void. Florentine v. Wilson, Hill & Denio, 303; German, etc., Ins. Co. v. Grim, 32 Ind. 249. See the leading case, Collins v. Blantern, 2 Wils. 341; 1 Smith's Lead. Cas. 489 (667).

(346) A recital in a deed that the consideration has been paid will prevent any trust from resulting to the grantor. Meeker v. Meeker, 16 Conn. 383, 387; Stackpole v. Robbins, 47 Barb. 212; S. C. affirmed, 48 N.Y. (3 Sick.) 665; Kimball v. Walker, 30 Ill. 511; Sprigg v. Mt. Pleasant Bank, 14 Pet. 206.

Where there is no fraud toward the grantor or his creditors, a deed of lands which is executed without any consideration is sufficient to pass the title from the grantor to the grantee. Fouty v. Fouty, 34 Ind. 433; Laberee v. Carleton, 53 Me. 211; Ryan v. Brown, 18 Mich. 196; Rogers v. Hillhouse, 3 Conn. 398, 402; Perry v. Price, 1 Mo. 553, 555; Jackson v. Dillon, Overt. 261, 264; Den v. Hawks, 5 Ired. 30, 32; Ruth v. King, 9 Kan. 17.

not sufficient ground for impeaching the deed (n). (347) 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 affection, 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 [* 480] like, which the law esteems an equivalent given for the grant (0); (348) and is therefore founded in motives of justice. Conveyances made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasers. For by a statute passed in the reign of queen Elizabeth (p), it is enacted that a conveyance of lands (of whatever tenure (q)) for the purpose of defrauding purchasers for valuable

Voluntary conveyances.

consideration, shall as against such purchasers be void. The construction put upon this act is that the mere fact of the conveyance being for no valuable consideration, i. e., a voluntary conveyance, is sufficient evidence of fraud within the act (r). Consequently a subsequent purchaser for valuable consideration gains a perfect title, notwithstanding the voluntary deed, and that even if he has notice of it (s). (349) But the deed will not be set aside in favour of a purchaser from the heir-at-law or devisee or the grantor, unless it was really fraudulent (1).

By another act of Elizabeth (u), conveyances made for the purpose of defeating creditors are void, unless made bona fide on the part of the purConveyances to chaser, and for valuable consideration (x). (350) We may here defeat creditors. refer to what is said as to equitable doctrines concerning the

(n) Harrison v. Guest, 8 H. L. 481. (0) Tuyne's Case, 3 Rep. 83.

(p) 27 Eliz. c. 4, made perpetual by 39 Eliz.

c. 18.

(q) Doe v. Bottriell, 5 B. & Ad. 131; Currie v. Nind, 1 My. & Cr. 17.

(r) Doe v. Manning, 9 East, 59; Doe v. James, 16 East, 212; Acton v. Woodgate, 2 My. & K. 492.

(8) Upton v. Bassett, Cro. Eliz. 444; Doe v. Hopkins, 9 East, 70; Gully v. Bishop of Exeter, 9 B. & C. 601.

(347) To the same effect, see the cases cited in the last note, and also Green v. Thomas, 11 Me. 318; Taylor v. King, 6 Munf. 358; Thompson v. Thompson, 9 Ind. 323; Pierson v. Armstrong, 1 Clarke (Iowa), 282.

(348) A deed of lands executed by a parent to a child, in consideration of natural love and affection, is founded upon a sufficient consideration, and is valid. Pierson v. Armstrong, 1 Clarke (Iowa), 282. So of a deed to a step-daughter. Randall v. Ghent, 19 Ind. 271. So of a deed to a grandchild. Stovall v. Barnett, 4 Lit. (Ky.) 207; Huss v. Stephens, 51 Penn. St. 282. But see Kinnebrew v. Kinnebrew, 35 Ala. 628, 638; Duvall v. Wilson, 9 Barb. 487, which hold that an executory promise will not be enforced when founded solely upon love and affection toward a grandchild; and so as to a wife. Whitaker v. Whitaker, 52 N. Y. (7 Sick.) 368. A deed to a nephew is valid, though founded upon love and affection. Eckman v. Eckman, 68 Penn. St. 460.

(349) As has been seen, ante, 722, notes 346, 347, 348, a deed which is purely voluntary is valid as between the parties; and where a subsequent purchaser from such a grantor has notice of the prior deed, he will not be regarded as a bona fide holder, and he will not hold the land as against the prior grantee. Salmon v. Bennett, 1 Conn. 525; Ricker v. Ham, 14 Mass. 139; Beal v. Warren, 2 Gray, 447; Jackson v. Town, 4 Cow. 603; Atkinson v. Phillips, 1 Md. Ch. 507; Cathcart v. Robinson, 5 Pet. 280; Douglas v. Dunlop, 10 Ohio, 162; 4 Kent's Com. 464. (350) See the last note.

[* 481]

*consideration for contracts, in the Third Volume of these Commentaries (y).

We see, then, that a good consideration, as it is called, is not sufficient to ensure the validity of the deed, and, in fact, the expression has little other meaning than to distinguish the intention of the deed from that where an illegal or immoral purpose is the object. A deed executed with or for a consideration of the latter kind is absolutely void. (351) A bona fide valuable consideration of more than mere nominal amount is, therefore, a requisite to make a deed absolutely good. The deed ought to show clearly on the face of it what the consideration is, not only in order that there should be no fraud upon the revenue in respect of the stamp, but also to obviate all questions of fraud as between the parties. Yet in the absence of such fraud, an incorrect and consequently improper statement of the consideration does not vitiate the deed (z), though it casts upon those who introduce it the serious responsibility of proving that no fraud was intended (a).

Thirdly, the deed must be written, or printed; it may be in any character or any language, but it should be upon paper or parchment. For it is said

3. Deed must

be written or printed on

paper or parchment.

that if it be written on stone, board, linen, leather, or the like, it is no deed (b). Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than in 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 [* 482] revenue (c). (352) The deed is not, however, absolutely void for want of a stamp, for on payment of a penalty the deed may always be stamped: and it may even be admitted in evidence in court though unstamped, upon payment to the registrar of the court the amount of the stamp and penalty, together with a small additional penalty (d).

Stamps.

Formerly, many conveyances were made by parol, or word of mouth only, without writing; but this giving rise to a variety of frauds, the statute 29 Car. 2, c. 3, enacts, that no lease, estate or interest in lands, teneStatute of frauds. ments, 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

(y) Vol. iii. p. 62, et seq.

(2) Harrison v. Guest, 8 H. L. 481; Clifford v. Turrell, 1 Y. & C. C. C. 633. affd. 9 Jur. 138; Leifchild's Case, L. R. 1 Eq. 231.

(a) In Re Stewart, L. R. 2 P. C. 88, 103; Gibson v. Russell, 2 Y. & C. C. C. 104. (b) Co. Litt. 229; F. N. B. 122.

(c) The act now regulating these stamps is 13 & 14 Vict. c. 97; the stamp is 10s. for every

(351) See, ante, 722, note 345.

100% of the consideration money; a sliding scale being arranged for sums below 600; when the consideration is nominal, the stamp is 1. 158. There is also a further progressive duty depending upon the length of the deed. Before the 10th Oct. 1850, the duties were somewhat different, being regulated by 55 Geo. 3, c. 184.

(d) See 17 & 18 Vict. c. 125, s. 29.

(352) In this country no stamp is required upon deeds under the existing laws. By the Laws of Congress of 1864, ch. 173, 13 Gen. Statutes, pp. 223, 299, a stamp was necessary upon a deed. But by Act of Congress of 1872, ch. 315, § 36, 17 Gen. Statutes, 256, the law requiring such stamp was repealed. The decisions upon the various questions relating to these stamps are very numerous, though it is not important to notice them here.