a house for convenience of merchandise, in case he be an alien friend; (10) all other purchases (when found by an inquest of office) being immediately forfeited to the king. (n) (11)

Papists, lastly, and persons professing the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III, c. 60, within the time limited for that purpose, are by statute 11 and 12 Wm. III, c. 4, disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void. (o) (12)

II. We are next, but principally, to inquire, how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate [*294] right or exclusive property should be originally acquired: *which we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose therefore of continuing the possession, the municipal law has established descents and alienations: the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred; or with regard to the subject-matter, as to what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.

These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is (according to the old common law), upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in its order.

(10) [In former times no alien was permitted even to occupy a house for his habitation, and the alteration in that law was merely in favor of commerce and merchants. See 1 Rapin Hist. Eng. 361, n. 9; Bac. Ab. Aliens, Č.]

(11) [But not before the inquest: 5 Co. 52, b; and if the purchase be made with the king's license, there can be no forfeiture. 14 Hen. IV, 20 Harg. Co. Litt. 2, b. n. 2.]

(12) These disabilities are now entirely removed. See the statutes 10 Geo. IV, c. 7, and 2 and 3 Wm. IV, c. 115; 23 and 24 Vic. c. 134; 32 and 33 Vic. c. 109.

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 requisites; 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, Kar' εğoxny, 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 other. Deeds thus made were denominated syngrapha by the canon[ *296] 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, put 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. (ƒ) 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 use, to forfeitures, and often to imprisonment. (2) A deed also, or other

(a) Co. Litt. 171.
(d) Mirror, c. 2. § 27.
(g) Stat. 13 Eliz. c. 8.

(b) Plowd. 434.

(c) Lyndew. l. 1. t. 10, c. 1.
(e) irror. c. 2, § 27. Lítt. §§ 371, 372. (f) Co. Litt. 35.
(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 its invalidity, and as to them it is avoided only so far as is needful for their protection.

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. (k) (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 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 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 these 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. 533.

(7) 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, that 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 date of the deed, will have no effect, unless the will be republished, that is, in fact, new made.]

(4) This rule does not obtain in the United States. A deed purely voluntary is perfectly valid as against any subsequent purchaser from the gantor, 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) [Com. 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 name 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 circumstances, it is equitable that such performance should be decreed. See Fry on Specific Performance; Story Eq. Juris. §§ 712-799.

[It is settled, also, that trusts of lands arising by implication, or operation of law, are not within the statute of frauds; if they were, it has been said, that statute would tend to promote frauds rather than prevent them. Young v. Peachy, 2 Atk. 256, 257; Willis v. Willis, id. 71; Anonym. 2 Ventr. 361.

The statute of frauds enacts, that no agreement respecting lands shall be of force, unless it be signed by the party to be charged; but the statute does not say that every agreement so

Fourthly; the matter written must be legally and orderly set forth: that is, there must be words sufficient to specify the agreement and bind the parties; which sufficiency must be left to the courts of law to determine.(n) (7)

For it is not absolutely necessary in law to have all the formal parts that [*298] are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; and therefore I will here mention them in their usual (0) order.

1. The premises may be used to set forth the number and names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted. (p)

2, 3. Next come the habendum and tenendum. (q) The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As if a grant be "to A and the heirs of his body," in the premises; habendum "to him and his heirs forever," or vice versa; here A has an estate-tail, and a fee-simple expectant thereon. (r) But, had it been in the premises "to him and his heirs, habendum "to him for life," the habendum would be utterly void; (s) for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. The tenendum," and to hold," is now of very little use, and is only kept in by custom. It was sometimes formerly *used to signify the tenure by which the estate granted was to be [*299]

(0) Ibid. 6.

(q) Ibid.

n) Co. Litt. 223. (p) See Appendix, No. II, 1, page v. (r) Co. Litt. 21. 2 Roll. Rep. 19, 23. Cro. Jac. 476 (8) 2 Rep. 23. 8id. 56. signed shall be enforced. To adopt that construction would be, to enable any person who had procured another to sign an agreement to make it depend on his own will and pleasure whether it should be an agreement or not. Lord Redesdale, indeed, has intimated a doubt, whether in any case (not turning upon the fact of part performance) an agreement ought to be enforced, which has not been signed by, or on behalf of, both parties. Lawrenson v. Butler, 1 Sch. and Lef. 20; O'Rourke v. Percival, 2 Ball and Beat. 62. Lord Hardwicke and Sir Wm. Grant held a different doctrine. Backhouse v. Mohun, 3 Swanst. 435; Fowle v. Freeman, 9 Ves. 351; Western v. Russel, 3 Ves. and Bea. 192. Lord Eldon, without expressly deciding the point, seems to have leaned to Lord Redesdale's view of the question: Huddlestone v. Biscoe, 11 Ves. 592; and Sir Thomas Plumer wished it to be considered whether, when one party has not bound himself, the other is not at liberty to enter into a new agreement with a third person. Martin v. Mitchell, 2. Jac. and Walk. 428.

By statute 8 and 9 Vic. c. 106, s. 4, a feoffment made after the first of October, 1845, other than a feoffment made under a custom by an infant, shall be void at law, unless evidenced by deed; and it is also enacted that a partition and an exchange of any hereditaments, not being copyhold, and a lease required by law to be in writing, of any hereditaments, and an assignment of a chattel interest not being copyhold in any hereditaments, and a surrender in writing of any interest therein not being a copyhold interest, and not being an interest which might by law have been created without writing, made after the first day of October, 1845, shall also be void at law, unless made by deed.] Permission from the owner of land to another, to erect and occupy a building upon his premises, though not given in writing, will make the building, when erected, the property of the builder. But this permission, properly called a license, is revocable at any time; but when revoked, the licensee is entitled to the building, and may remove it. Dubois v. Kelley, 10 Barb. 496. If, however, the owner of the land sell to a third person who has no knowledge of the license, such third person, it seems, takes the land with whatever is so attached as to pass as a part of the realty if belonging to the grantor; and in such a case, the licensee, if he had not previously removed the building, would lose it. Prince v. Case, 10 Conn. 383. That a license is always revocable, see Burton v. Schuff, 1 Allen, 13; Owen v. Field, 12 Allen, 257; Pittman v. Poor, 38 Me. 23; Rhodes v. Otis, 33 Ala. 600; Pratt v. Ogden, 34 N. Y. 22; Huff v. McAuley, 53 Penn. St. 206; Houston v. Laffer, 46 N. H. 505. A strong disposition has been manifested of late to hold that where expenditures have been made upon lands in reliance upon a license before revocation, the licensor shall be estopped from revoking afterwards unless the licensee can be placed in statu quo Kerick v. Kern, 14 S. and R. 267; Dark v. Johnston, 55 Penn. St. 164; Snowden v. Wilas, 19 Ind. 10; Lane v. Miller, 27 Ind. 534.

(7) For rules for the construction of deeds, see post, 379.

VOL. I.-C

ຮາດ

holden, viz.: "tenendum per servitium militare, in burgagio, in libero socagio," &c. But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I, it was also sometimes used to denote the lord of whom the land should be holden; but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi; (t) but as this expressed nothing more than the statute had already provided for, it gradually grew out of use. (8)

4. Next follow the terms of stipulation, if any, upon which the grant is made; the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as "rendering therefor yearly the sum of ten shillings, or a peppercorn, or two days' ploughing, or the like." (u) Under the pure feudal system, this render, reditus, return or rent, consisted in chivalry principally of military services; in villeinage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit. (w) To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed. (x) But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee. (y)

5. Another of the terms upon which a grant may be made is a condition ; which is a clause of contingency, on the happening of which the estate granted may be defeated: as "provided always, that if the mortgagor shall pay the [*300] mortgagee *5007. upon such a day, the whole estate granted shall determine;" and the like. (z)

6. Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted. (a) By the feudal constitution, if the vassal's title to enjoy the feud was disputed, he might vouch, or call the lord or donor to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense. (b) And so, by our ancient law, if before the statute of quiá emptores a man enfeoffed another in fee, by the feudal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffer and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered. (c) Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage (which was called homage auncestral), this also bound the lord to warranty; (d) the homage being an evidence of such a feudal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty, (e) because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title. (f) But in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffer only is bound to the implied warranty, and not his heirs ; (g) because it is a mere personal contract on the part of the feoffer, the tenure (and of course the ancient services) resulting back to the superior lord of the fee. And in other

(t) Appendix. No. I. Madox. Formul. passim. (u) Appendix, No. II, 1. page iii.
(w) See page 41.
(x) Plowd. 13. 8 Rep. 71. (y) Appendix, No. I, page i.
(z) Ibid. No. II, § 2, page viii. (a) I bid. No. I, page i. (b) Feud. 1. 2. t. 8 and 25.
(d) Litt. § 143.
(e) Co. Litt. 174.
(f) Ibid. 384.
(g) Ibid.

(c) Co. Litt. 384.

(S) [The habendum, though a proper and formal part of a conveyance at common law, is not absolutely essential; and in a conveyance merely by way of declaration of use, as a bargain and sale, covenant to stand seised, or appointment, it is obviously unnecessary, and (unless in a bargain and sale) improper. See 5 B. and Ad. 783.]