(B 5.) When a second delivery renders a deed effectual.

If a deed be intirely void at the time of delivery, for want of capacity in him, who makes it, and afterwards the same person attains a capacity to make it, and then delivers the deed de novo, the second delivery makes it good: as, if a feme covert delivers a deed, and after the death of her husband delivers it de novo. Vide Capacity, (D 2.)

Vide ante, (A 3.)

So, if a deed be cancelled, and afterwards executed and delivered de novo, it shall be good. 2 Rol. 26. l. 7.

So, if a man, who has a capacity to make a deed, but for some impediment cannot at that time make it effectual, delivers the deed as an escrow, to be afterwards delivered as his deed, and after the impediment removed, it be delivered as his deed, it shall be good: as, if a disseisee makes a lease for years, being out of possession, and delivers the deed as an escrow, to be afterwards delivered as his deed, and after possession obtained it be delivered as his deed; it shall be good. Co. L. 48. b. Cro. El. 446. 3 Co. 35. b.

But if a man delivers a deed as his deed, and at the time of the delivery has not power to make it effectual, it shall not be good by a second delivery after the impediment removed: as, if a disseisee makes a lease, being out of possession, and delivers it as his deed, it cannot be a good lease by a new delivery after the possession recovered.

So, if a deed of confirmation of the estate of the lessee be delivered before a lease executed; it cannot be good by a delivery de novo after a lease made.

So, if a man, who has not capacity to make a deed, delivers it as an escrow to be afterwards delivered as his deed, and afterwards attains a capacity, and then the deed is delivered; it shall not be good, for this relates to the first delivery: as, if an infant, feme covert, &c. delivers a deed as an escrow, and after full age, death of the husband, &c. it is delivered as a dead. R. Cro. El. 446. 3 Co. 35.

So, if it was delivered at first as his deed, by one whose deed is not void, but voidable only, as, by an infant, by duress, &c. it shall not be good by a delivery de novo at full age, when at large, &c. 2 Rol. 26. l. 10. 15.

(C 1.) Deed indented.

Every deed is indented, or poll.

When a deed is indented it shall be said to be an indenture, though the words, this indenture, &c. are wanting. Co. L. 229. a. (d)

2 Inst. 672. R. 5 Co. 20. b.

But

preserving his name and family, are also held to be good considerations. Ibid. 13. The payment of a man's debts is deemed a good consideration; as every man is under a moral obligation of satisfying his lawful creditors. Ibid. 14. A consideration too is either express or implied. An express consideration is where the motive or inducement of the parties to a deed, is distinctly declared. Treat. Eq. b. 1. c. 5. s. 1. -15. A consideration is implied, where an act is done or forborne at the request of another, without any express stipulation; in which case the law presumes an adequate compensation for the act of forbearance, to have been the inducement of the one party, and the undertaking of the other. Ibid.

(d) The Annotator subjoins, that before the indenting of deeds came into use, when

But the words, this indenture, &c. do not make an indenture, if Co. L. 229. a. 143. b. (e)

the deed be not indented. Indented deeds began to were common Temp. H. 3. An indenture may be

299. a.

be used Temp. R. 1. John, or H. 2. and Mad. Form. Int. 29. (ƒ)

indented at the top or side. Co. L.

An indenture is bipartite, tripartite, quadrupartite, &c. 229. a. (g)

Co. L. And every part of the indenture is of as great effect as all the parts together. Lit. S. 370. (h)

And

when there were more parties than one interested in them, there were as many parts of them taken, as there were parties interested, and one part was delivered to each of the parties: these multiplied parts were called chartæ paricla, or paricole. The charta paricle, or paricole, were superseded in a great measure, by the charta partita. One part of the charta partite was written on a piece of vellum or parchment beginning about the middle and continuing to the end of each side. This prevailed as early as the times of the Saxons, as appears by the will of Ethelwyrd, a nobleman of Kent, dated in 958; by that of prince Ethelstan, eldest son of king Ethelred the second; by a charter of archbishop Eadsi, made about the year 1045; and by other Saxon documents preserved in the library of Mr. Astle; in all which the parchments are cut in straight lines. Straight lines continued to be generally used, till the latter end of the reign of king Henry the third. Afterwards the cut through the parchment was made in a waving or undulating line; and the practice of writing an intermediate sentence, or drawing an intermediate figure, was generally disused, and the word cyrographum adopted. In process of time it became the practice, to indent this line in small notches or angles. This practice began with the lawyers, as early as the reign of king John; but was not adopted by the ecclesiastics till a much later period. This made the intermediate writing or drawing unnecessary; and it seems to have been abandoned about the reign of Edward the third. But the practice of indenting deeds in the intermediate line, remained in use till the close of the fourteenth century; it then seems to have declined: yet the practice of cutting a waving or undulating line at the top of the parchment, on which every deed that is not a deed poll is written, has ever since continued. If the deed contains more than one skin of parchment, only the first skin of parchment is indented. Foreign diplomatists contend, that when the parchment on which a deed is written, is cut through the intermediate word or figure in a straight line, it is properly called chirographum; that when it is cut through the intermediate word or figure in a waving line, it is properly called charta undulatoria; and that it is then only properly called charta indenta, or indentura, when it is cut through the intermediate word or figure in a waving line, and that waving line is indented or notched in the manner abovementioned. But with us, every deed, the top of which is cut in the undulating or waving manner abovementioned, is called an indenture. He refers to Mr. Madox's preface to his Formulare, and the Nouveau Traité de Diplomatique, tom. i. 331.

(e) 1. Accordingly in Stiles's case, where a deed was produced as an indenture, which was not indented, beginning with the words hæc indentura, it was adjudged, that it was not an indenture, although it was in two parts; for the words of a deed cannot make it indented; but to the making of an indenture there ought to be a manual act of indenting the parchment or paper. 5 Rep. 20.-2. It is affirmed by Sir Henry Gwillim, that if only the form of indenting the parchment or paper be wanting, this is not material; since it might even be done in court. 4 Bac. Abr. 51.

(f) Some deeds must be indented, to be valid for the purposes for which they are used, as bargains and sales by the stat. 27 H. 8. c. 16.; leases by persons seised in tail in right of their wives, or ecclesiastical persons, by 32 H. 8. c. 28.; a bargain and sale of a bankrupt's estate by 13 Eliz. c 7. Vide etiam, 43 Eliz. c 18

(g) 1. And that part or copy which is executed by the grantor, is usually called the original: the rest are called counterparts. 2 Comm. c. 20. s. 1.-2. Though the use now is for all the parties to execute every part, which makes them all originals. Ibid.

(h) 1. The counterpart of a deed has been admitted to be sufficient evidence of such deed;

And all the parts are but one deed in law. Lit. S. 370.

(C 2.) Who are parties to it.

If one party (i) executes his part of an indenture, it shall be his deed, though the other does not execute his part. R. Cro. El. 212. Co. L. 229. a. Vide post, (D 2.)

So, if an indenture be between A. and B. of the one part, and C. and D. of the other, whereby an estate is granted to C. and D. and there are covenants to A. and B. by them; though D. does not seal, if he agrees to the deed, he shall be bound by the covenants. Vide ante, (A 2.)

So, though B. does not seal, A. and B. may have covenant; for B. is named a party. Vide ante, (A 2.)

So, if a deed between A. on the part of B. of the one part, and C. of the other, and C. agrees to pay so much to B. without saying with whom he agrees; B. though a stranger, may maintain an action thereon against C. Dub. 3 Lev. 139.

So, if a deed does not mention any parties in the beginning, but says, it is agreed, that a horse shall run, &c. In witness whereof we have set our hands and seals, and A. and B. sign and seal it; they are parties to it, and the one shall have covenant against the other. 1 Sal. 214.

R.

So, if a deed be between A. and B., whereby it is agreed, that D. shall do all on his part, and D. seals and delivers it, he is a party; and if he does not do all agreed on, covenant lies against the covenantor. Semb. Sho. 59.

So, if a demise be by A. to B. by deed between A. and B., and afterwards C. adds, that he covenants that B. shall pay his rent, &c. and signs the deed; covenant lies against C., though he was not a party to the original deed. R. Carth. 76.

But if a charter-party be between A. and other owners of a ship, of which B. is master, of the one part, and C. of the other, whereby A. covenants with B. and C., and also C. covenants with A. and B. Though B. executes the deed, yet he is not a party, and cannot release covenant by A. against C. R. 2 Rol. 22. 1. 20. (k)

So a man cannot be party to a deed, if he be not named therein: as,

-

deed; and a conveyance decreed accordingly. Prec. Ch. 116. 2. If there happens to be any variance between the indenture and counterpart, it shall be taken as the deed of the grantor happens to be, and the other shall be intended only the misprision of the writer. Finch's Law. 109.

(i) 1. The parties to a deed are either active or passive. Those who grant, demise, or release, are the active parties, and are called the grantors, lessors, and releasors, those to whom the subject is granted, demised, or released, are the passive parties, and are called the grantees, lessees, or releasees. 4 Cruise, 313. 2. If several persons join in a deed some of whom are capable of conveying or taking, and others incapable, it shall enure and be construed as the deed of those only who are capable of conveying, and to those only who are capable of taking; for the incapacity of some of the parties will not render it invalid, as to those who are capable. Ibid. 1 Inst. 45. a. Touch. 81.

(k) A deed inter partes, is only available between those who are parties to it, and their privies. Hence a deed between A. of the one part, and C. of the other, whereby A. agreed to annul certain claims which he had against B. cannot be pleaded by B. in an action against him by A. brought to enforce those claims. 3 M. & S. 308.

if it be agreed between A. and B. that A. being arrested shall go at large upon his note, whereby he writes, I engage to return to the custody of D. such a day; B. is not a party, nor can have covenant upon this note, though it be signed and sealed by A. R. 1 Sal. 197.

(D 1.) Deed poll.

A deed poll is every deed not indented. Co. L. 229. a.

And if a deed is pleaded, it shall be intended to be poll, if it be not mentioned to be indented. Co. L. 229. a.

If a deed poll between A. and B. be delivered by A. to B. and afterward delivered by B. to A. either of them who has it in his hands may maintain an action thereon: for the re-delivery does not avoid the deed. R. Cro. El. 483.

So, if A. by deed-poll agrees to pay so much to B. he shall maintain an action upon it, though he be a stranger, and did not seal it. 3 Lev. 140.

(D 2.) Who shall take, though not a party.

None shall take a present interest by a deed, if he be not a party to it. Co. L. 231. a. Vide ante, (C 2.)

So a party to a deed cannot covenant with one, who is a stranger to the deed. Per Holt, Carth. 76. (l)

But a man may take by way of remainder, though he be not a party to the deed. Co. L. 231. a.

As, if by deed between A. and B. only, A. conveys to B. for life, or in tail, remainder to D. for life, in tail, or in fee; D. shall take the remainder, though he be a stranger to the deed. Co. L. 231. a.

So, if a lease be to B. for years if A. so long lives, and that it remain to D. for years, to commence after the death of A. it shall be a good remainder to D. though no party. R. Ray. 142.

(?) 1. That is in the case of a deed inter partes; which, in one sense every contract is, since none can be valid to which there are not proper sides or parties; but this expression has a technical sense, and means an agreement professing in the outset, and before the stipulations are introduced, to be made between such and such persons; as thus, 'This deed concluded on the 1st day of January, 1821, between A. of the one part and B. of the other.' - 2. The effect of such an introduction is very great indeed, it being a solemn declaration, that all the covenants comprised in that instrument, are intended to be made between those parties and none others. Insomuch, that should a stipulation be found in the body of the deed like this, ' And the said A. covenants with J. S. to pay him 20%.' the words with J. S.' are inoperative, unless to denote for whose benefit the stipulation is made, being in direct contradiction to what had been previously declared, and B. alone can sue for non-payment: a consequence of the maxim, that where two opposite intentions are expressed in one contract, the first in order shall be preferred. 8 Mod. 116. Carth. sup. 3 Lev. 138. 3. Where there are more sides to a contract inter partes than two, as where made between A. of the first part, B. of the second, and C. of the third, there is no objection to one covenanting with another in exclusion of the third. In such case, the introduction must not be construed to declare, that every provision of the deed is made between all alike; but rather, that some are concluded with this person, some with that: and, indeed, chiefly for this end, were the contractors divided into more sets than two. On the other hand, the introduction must not receive this force, that some provisions are made with or by one party, some by or with another, and none with or by two jointly; so that two may covenant with the third, and vice versa. Vide Dyer, 337. pl. 39. 3 Taunt. 87. &c. 4. Indenting a deed (in the usual form) only multiplies the copies, and has not the effect of making it a contract inter partes. 3 Lev. 139.

1 Show. 58.

(E) The

(E) The parts of a deed.
(E 1.) Recital.

A deed may be good, though it has not formal parts.

A recital (m) is not an essential part of a deed, (2) for it may explain the intent, or may be repugnant. (0) Per Holt, 3 Ca. Ch. 101. (p)

(E 2.) Indorsement, &c. (q)

A thing subscribed after the words, in cujus rei testimonium, or indorsed, may amount to a covenant or defeasance; but is no part of the deed: (7) as, if a bill or note for 10l. be subscribed, Memorandum that he is not to pay the 107. till he has recovered, &c. R. 2 Brownl. 98.

So a thing wrote after, in cujus rei testimonium is no part of the deed, though it was wrote before the sealing and delivery of the deed. 2 Rol. 23. 1. 20. R. Cont. Mo. 3.

(m) 1. The recital is a narrative of such facts, deeds, or agreements, as are necessary to explain the grantor's title, and the motives and reasons upon which the deed was founded. 4 Cruise, 317.

(n) Although recitals are not absolutely necessary, yet they are now usually inserted in all deeds, for the purpose of showing the origin and derivation of the title, or of stating such facts as are connected with or relate to, the subject matter of the deed. 4 Cruise, 317.

(0) 1. A misrecital of a former grant will not invalidate a deed; nor will a misrecital of the estate of the grantor in the land. Hob. 128. 3 Leon. 135. Cro. Jac. 127. Skin. 543.-2. And Lord Coke laid it down, that a recital does not conclude, because it is no direct affirmation. 1 Inst. 352. b. 3. But it has been since held, that though a person shall not be estopped by a general recital, yet he may be estopped by the recital of a particular fact. For where it was recited in the condition of a bond, that the obligor had received divers sums of money for the obligee, which he had not brought to account, but acknowledged that a balance was due to the obligee; it was held, that the obligor was estopped to say, that he had not received any money for the use of the obligee. Willes, 9. 4. Where it can be proved, that a deed was actually executed, and is lost, the recital of it in another deed is evidence of it. 6 Mod. 45.

(p) 1. If there is any mistake in a recital, that part of the recital in which the mistake is, shall be rejected.-2. Thus, in an award under a submission by bond, if the arbitrators offer to recite the bond and mistake the date of it, the mistatement shall be rejected.

(9) After the recitals comes the witnessing part, which begins with an account of the consideration, and if it be a pecuniary one, the payment of it is mentioned, and the grantor acknowledges the receipt of it, and releases the grantee from the payment of it. And it is also usual to indorse a receipt for the consideration, where it is pecuniary, on the back of the deed, which should be signed by the party who receives the money. 4 Cruise, 318. 2 Atk. 478. 3 Atk. 112.

(r) 1. An indorsement of the same date as the deed, and made before its execution, must be taken as part of the deed itself. 4 M. & S. 30. 6 T. R. 737. — 2. And when a bond was conditioned that the obligor should indemnify the obligee from all sums which he should pay upon the obligor's account, and before the bond was executed a memorandum was indorsed on it, that the obligee undertook not to sue upon the bond until after the obligor's death; the bond, it was held, was not payable by the obligor himself but only by his representatives after his death. 8 T. R. 485. -3. But where an indorsement was made upon a deed after its execution, that the lessee should not be dispossessed, but should have the land from the day of the indorsement until, &c., being a day beyond the term granted by the deed; it was held, that the memorandum had no force whatever: it could not operate to take from the lessor, the power of determining the first lease, not being by deed; and it did not operate as a surrender of the former lease and the creation of a new one, that being obviously against the intention of the parties, since then a lease with rent and covenants should be exchanged for one without. 4 M. & S. 30.

But