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Before the conquest, and since, till the time of Rich. I. the king's seal was not arms, but any impression, varying at the king's pleasure. Co. L. 7. a. 2 Rol. 180. A. Vide Patent, (C 1.)

Rich. I. first used two lions rampant, combatant. Co. L. 7. a. 2 Rol. 181. 1. 25.

And after his return from Jerusalem, three lions passant. 2 Rol. 181.1. 25. but Coke says K. John first used them. Co. L. 7. a.

So, if an indenture be between A. of the one part, and B. and C. of the other; whereby A. demises to B. and C. who covenant with A. If B. seals the counterpart, but C. does not seal, yet if C. agreed to the lease, it shall be his deed, and he shall be bound by the covenants. Co. L. 231. a. Vide post, (C 2.)

So, if there are mutual covenants between A. and B. of the ome part, and C. and D. of the other, and B. does not seal; yet covenant lies by him, against C. and D. upon this deed. R. 2 Rol. 22. l. 35. For he is named a party to the deed, and C. and D. covenant with him.

(A 3.) Delivery:- What shall be a delivery.

So delivery is essential to a deed; for it is not a deed without delivery, though it be sealed. Co. L. 35. b. 2 Rol. 23. l. 40. 45. When a second delivery avails. Vide post, (B 5.)

But a delivery may be made without any words: (m) as, if he actually delivers a writing, after sealing it, to the party, without saying any thing. Co. L. 36. a. 2 Rol. 24. 1. 28. 45. Per 2 J. Dal. 104. (n) If he throws it upon the table, with an intent that the party shall take it; and he takes it accordingly. R. Ow. 95. (0) If he delivers it as his deed into the hands of a stranger. 2 Rol. 24. 1. 42. (p)

If it be wrote in a book, and he delivers the book. 2 Rol. 25. 1. 20. If a deed be to A. for the benefit of B. upon a marriage, a delivery to B. upon the day of marriage, saying, this will serve, and B. delivers it to A. shall be a good delivery to A. R. Dy. 192. b. 2 Rol. 24. l. 15. (q) So a delivery may be by words only, without an actual delivery: as, if the writing lies upon the table, and the obligor says to the obligee, take it up, it is sufficient for you. Co. L. 36. a.

(m) That is, where the delivery is to the party himself, or his authorised agent, for if delivered to a stranger, without declaring that it is for and in behalf and to the use of him to whom it is made, it seems that such delivery will not be sufficient. 4 Cruise, 34. Touch. 57.

(n) Lofft. 340. 4 T. R. 314. 9 Rep. 156.

(o) A lessee for years granted his term by deed, and sealed it in the presence of the grantee and several other persons. The deed at the same time was read but not delivered; nor did the grantee take it, but it was left behind in the same place. The opinion of all the judges was that it was a good grant; for the parties came for that purpose, and performed all that was requisite for the perfecting it, except an actual delivery; and it being left behind them, not countermanded, it should be said to be a delivery in law. Cro. Eliz. 7.

(p) 1. A deed may be delivered in the absence of the party who is to take under it. L. R. 233. Vide 2 P. Wms. 359.-2. Therefore it is no excuse for not re-assigning an estate, that the party to whom it was to be re-assigned never requested it. (q) 1. A joint obligation executed once only by one obligor for himself and the other, in the presence and with the authority of that other, binds both. 4 T. R. 313. 2. If A., without authority, execute a joint and several bond for himself and B., and sign it A. and B.', it is available as a several bond against himself. 2 B. & P. 338.

Or,

Or, take it as my deed. Co. L. 36. a.

So, if it be once delivered as his deed, it is sufficient, though he afterwards by words explains his intent otherwise: as, if an obligation be made to A. and delivered to A. himself as an escrow to be his deed upon performance of a condition: this is an absolute delivery, and the subsequent words are void, and repugnant. Dub. Dy. 34. b. Cont. Cro. El. 835. R. acc. Cro. El. 520. 884. Mo. 642. Semb. cont. Mo. 697. 27 H. 8. 12. b. Acc. 19 H. 8. 8. a. R. acc. Hob. 246. 2 Rol. 26. l. 45. R. 9 Co. 137. Co. L. 36. a. R. Noy, 6. (r)

If it be delivered as his deed, to a stranger, to be delivered to the party upon performance of a condition, it shall be his deed presently, and if the party obtains it, he may sue before the condition performed. 2 Rol. 25. 1. 30. R. per 3 J. 1 Leo. 152.

So a common seal fixed to the deed of a corporation is tantamount to a delivery. R. 2 Rol. 23. 1. 50. Dav. 44. (s)

So a delivery by a stranger, with the assent of the maker of the deed, is sufficient. Perk. Fait, 187.

(A 4.) What not.

But if a man throws a writing on a table, and says nothing, and the party takes it; this does not amount to a delivery, unless it be found to be put there with intent to be delivered to the party. R. 1 Leo. 140. Ow. 95. (t)

So, if he delivers a writing to A. to the use of B.; it is not a delivery to B. if it was not delivered as his deed. 2 Rol. 24. 1. 39.

(r) 1. The delivery of a deed may either be absolute, that is, to the grantee, or to some person for him; or conditional, that is, to a third person, to keep it till something is done by the grantee; in which last case it is not delivered as a deed, but as an escrow, that is, a scrowl writing, which is not to take effect, till the condition is performed; when it becomes a good deed. 4 Cruise, 35.-2. Where a deed is delivered as an escrow, it is of no force till the condition is performed, and although the party to whom it is made, should get it into his possession, before the condition is performed, yet he can devise no benefit from it. Ibid. Touch. 59.-3. But if either of the parties die before the condition is performed, and afterwards the condition is performed, the deed becomes good, and will take effect from its first delivery; for there was traditio inchoata in the life time of the parties; et postea consummatio existens, by the performance of the condition. 4 Cruise, 35. 3 Rep. 35. b. 4. Where a person who delivers a deed as an escrow, has not power or ability in law at that time to make the deed, and before the second delivery he attains such power, there the deed is void. But where the person, at the first delivery, has power and ability in law to contract, but cannot perfect it till an impediment be removed; there, if the impediment be removed, before the second delivery, the deed is good. Ibid. 5. If an unmarried woman delivers a deed as an escrow, and before the second delivery, she marries or dies; in such a case, for necessity, ut res magis valeat quam pereat; by fiction of law, this shall be a good deed ab initio.-6. In the delivery of a deed as an escrow, two things must be attended to: first, that the form of the words used in the delivery be apt and proper; which are, "I deliver this to you as an escrow, to deliver to the party as my deed, upon condition that he deliver to you 201. for me," or upon any other condition then mentioned; which mode of delivery ought to be taken notice of in the attestation. 4 Cruise, 36. Touch. 58. -7. Secondly, that the delivery of the deed as an escrow, be to a stranger; for if a person delivers a deed to the party himself, to whom it is made, as an escrow, upon certain conditions, the delivery is absolute, and the deed will take effect immediately; nor will the party to whom it is delivered, be bound to perform the conditions. Ibid. 1 Inst. 36. a. 9 Rep. 137, a. Infra, (A 4.)

(s) Cro. Eliz. 167.

(t) Vide supra (A 3.) citing Cro. Eliz. 7.

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So, if an obligation made to two, be delivered but to one, without saying any thing, this will not avail as to the other. 2 Rol. 24. l. 12.

So, if a lease and letter of attorney be fixed together, and a delivery be of the letter of attorney only; this does not amount to a delivery of the lease, though it be actually put with the letter of attorney into the hands of the party. R. 2 Rol. 25. l. 5.

So, if it be delivered to a stranger as an escrow to be his deed upon performance of conditions; it is not his deed till the conditions performed, though the party happens to have it before. 2 Rol. 25. 1. 25.45. Co. L. 36. a.

Or be delivered to a stranger to keep till conditions be performed. 2 Rol. 25. 1. 40.

Or, to be delivered to the party, as his deed, upon performance of a condition.

But a delivery cannot be to the obligee, as an escrow.

2 Cro. 85. 86.

So a deed, by a corporation out of possession, containing a lease of land and a letter of attorney, is not good under the common seal, if the attorney does not deliver it upon the land. R. 2 Rol. 24. l. 5. R. 1 Vent. 257. (u)

(B) That is not essential.

(B 1.) The name of the party.

It is not essential to a deed, that the party subscribe his name. 2 Cro. 640. Vide post, (E 3.)—Capacity, (B 4. 5.) — Grant, (A 2.)

And therefore, a variance in the name subscribed from the name of the defendant, does not prejudice, if it be found that the defendant executed it: as, if the defendant be R. Erlin, and subscribed his name Erlwin. R. Sal. 462.

(B 2.) Reading.

So it is not necessary that the deed be read before sealing and delivery: for if the party executes it without hearing, or desiring that it may be read, yet it binds him. Dub. 44 Ed. 3. 23. a. 44 Ass. 30. 2 Rol. 28. 1. 15. Mo. 184. 2 Co. 9. b.

But an illiterate man need not execute a deed before it be read to him. R. 2 Co. 3. Manser. R. 2 Co. 9.

Or, if it be in Latin. &c. before it be read to him in a language which he understands. 2 Co. 9.

So, a blind man, though he be well learned. 11 Co. 28. a.

So, if it be agreed to execute a release of a trespass, and the party, instead of it, executes a release of the land; it does not bind him. 44 Ed. 3. 23. 44 Ass. 30.

Or, if he executes a general release. 2 Rol. 28. 1. 10.

(u) (A 5.) Form of words.-1. Another circumstance necessary to a deed is, that there be words sufficient to specify the agreement and bind the parties, legally and orderly set forth; that is, there must be words sufficient to signify the terms and conditions of the agreement, and to bind the parties; which sufficiency must be left to the law to determine. 4 Cruise, 30.-2. A deed may refer to any collateral authenticated writing; when the term of such writing will be considered as incorporated with the deed. 1 H. Bl. 254. - 3. Vide infra, (2).

So,

So, if an illiterate man executes a deed which is falsely read (x), or the sense declared different from the truth, it does not bind him. Amd. 9 H. 6. 59. b. 2 Rol. 28. l. 5. R. 2 Co. 9. b. Mo. 148. 184.

As if it be read to be upon a condition, when it was absolute. 2 Rol. 28. 1. 25.

Or, to be of 51. penalty, when it was of 101. 2 Rol. 28. 1. 32. 11 Co. 27. b.

Or, to be a gift in tail, when it was a feoffment. 2 Rol. 28. 1. 27. So it does not bind, if the false reading be by a stranger, any more than if by the party to whom the deed is given. R. 2 Co. 9. b.

So, though it be by a friend of him, who executes it, without covin. R. 2 Co. 9. b.

So, if a man lettered, but blind by age, &c. executes a deed falsely read, it does not bind him. R. 2 Rol. 28. 1. 20.

If a feoffment, with a letter of attorney, is falsely read; it is void for both. 2 Rol. 28. 1. 27. 11 Co. 27. b.

But if two deeds are on the same parchment, and the one is truly read, and the other falsely; it binds for the deed which was truly read. 2 Rol. 28. 1. 35. 37. 11 Co. 27. b.

So, if there are two distinct clauses in the same deed, and one is truly read, and the other not, it shall be good as to the one. 11 Co. 27. b.

(B3.) Date.

So the date is not essential to a deed: for if it has no date (y), or a false, or impossible date, the deed shall be good, and shall take effect from the time of the delivery. Co. L. 6. a. R. 2 Co. 5. a. 2 Rol. 21. 1. 41. P. Q. 3 Leo. 100. Kelw. 34. b. R. Yel. 193. Vide Mad. Form.

Int. 30. (z)

So, if it has the day of the month, but no year is mentioned: for that is a void date. 2 Rol. 27. 1. 22.

So, if the delivery be found before or after the date, the deed shall be good: for though the party is estopped to plead the deed to be delivered before the date, yet the jury may say the truth. R. 2 Co. 4. b. 3 Leo.

100.

So, where a deed has a void date, it may be pleaded, that it was delivered at some other day than that mentioned in the deed. 2 Rol. 27. 1. 25. Yel. 194.

So, if it be delivered after the date, it may be pleaded, quod per fact geren' dat' 1°. Maii, et primo deliberat' 9°. Maii. R. 3 Lev. 348. R. Cro. El. 890.

So a deed with the date of the month, and year of the king, shall be good, though A. D. be mistaken. Mod. Ca. 45.

(x) Unless it be agreed, by collusion, that the deed should be read false, on purpose to make it void; for in such a case it will bind the fraudulent party. 2 Atk. 327. (y) In former times deeds were not dated, because the limitation of prescription, or time of memory often changed; and then it was held for law, that a deed bearing date before the limited time of prescription, was not pleadable. But it became customary, about the time of Edward II., to insert the date in all deeds, which has been practised ever since. 4 Cruise, 313.

(z) If two deeds bear date the same day, and are manifestly but one agreement, that shall be presumed to be executed first, which will support the clear intent of the parties. 1 Burr. 60.

So,

1

So, if the year of the king be mistaken.

of the king be mistaken. R. Sal. 462, 463.

So the clause in cujus rei testimonium is not necessary. Co. L. 6. R. 1 Leo. 25.

B 4. a.) Witnesses.

So witnesses are not essential to a deed. (a)

Though the clause

till the time of H. 8.

of, hiis testibus, continued in the deeds of subjects 2 Inst. 78. (b)

And was used in the king's patents Temp. H. 3. Ed. 1. 2. and 3. and before. 2 Inst. 77. Vide Patent, (B). (c)

(B 5.)

(a) 1. Their use is to constitute evidence of the authenticity of the deed. — 2. It is not necessary that the witness should actually see the party execute the deed; for if he be in an adjoining room, and the party after executing the deed brings it to him, tells him that he has done so, and desires him to subscribe his name as a witness, that is sufficient. 2 B. & P. 217.

(b) In the reign of Queen Elizabeth, deeds were often without witnesses. In 13 Car. 2., a counterpart of an old lease without witnesses, was allowed to be good evidence; and Mr. Justice Windham said, that he had seen several deeds made in Queen Elizabeth's time without witnesses. 4 Cruise, 36. 1 Lev. 25.

(c) (B 4. b.) Consideration. 1. At common law, a consideration was not essentially necessary to the validity of a deed. 2. Thus, in Plowden, it is said arguendo, that, by the law of England, there were two ways of making contracts for lands or chattels; the one by words, the other by writing; and because words were often spoken inadvisedly, and without deliberation, the law had provided that a contract by words should not bind without consideration. But where the agreement was by deed, there was more time for deliberation; for which reason deeds were received as a lien final to the party, and were adjudged to bind him, without examining upon what cause or consideration they were made. Plowd. 308. Bac. Read. 13.-3. Thus where a perrson promised by deed to give another twenty pounds, it was held that an action of debt lay upon the deed; and that the consideration was not examinable; for in the deed there was a sufficient consideration, namely, the will of the party who made the deed. 17 Edw. 4. 4. b. 4. And modern opinions agree with this doctrine. 3 Burr. 1670. 7 T. R. 350. n. 475.- - 5. Yet though a deed entered into without any consideration is valid at law between the parties; yet in many cases, it is void as to strangers. And therefore it may be laid down generally, that a consideration is necessary to render a deed valid against all persons. 4 Cruise, 27.-6. The court of chancery too will not lend its aid to carry a deed into execution, unless it is supported by some consideration. For equity is remedial only to those who come in upon an actual consideration. So that although a voluntary conveyance which is good in law, is sufficient likewise in equity: yet a voluntary defective conveyance, which cannot operate at law, is not helped in equity, in favour of a bare volunteer; where there is no consideration expressed or implied. Treat. Eq. b. 1. c. 5. s. 2. 2 P. Wms. 245. 1. Ves. J. 54. Vide in Chancery.-7. There must be not only a consideration in equity as a motive for relief, but it must be a stronger consideration than what is on the other side. For if it is only equal, then the balance will incline neither way, and the court will not interfere. Treat. Eq. Id. s. 2.-8. Thus where there are two con veyances, without consideration, of the same lands, the court of chancery will not re lieve the latter against the former; so that in such case, he who has the legal estate will hold it. 1 Ch. Rep. 173. - 9. There are likewise some deeds deriving their effect from the statute of uses; namely, a bargain and sale, and a covenant to stand seised to uses; to the first of which a pecuniary consideration, and to the second a good consideration, is absolutely necesary; otherwise they are void. 4 Cruise, 27. 10. Considerations are of two kinds, civil and moral; the first which is usually called a valuable consideration, is money, or any other thing that bears a known value; marriage also forms a valuable consideration. 4 Cruise, 28.-11. The second, which is called a good consideration, arises from an implied obligation; such as that which subsists between a parent and child; for children are considered in equity as creditors, claiming a debt, founded on the moral obligation of the parent to provide for his child. Ibid.12. The love and affection which a man is naturally supposed to bear to his brothers and sisters, nephews and neices, and heirs at law; and the desire of preferring and

preserving

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