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ing, and delivery. This may sometimes be of great importance, as in the case of appointments. Any interlineations or erasures, which are not very trifling, should, for the sake of avoiding future questions, be noticed in the attestation as having been made before the execution.
It may not be altogether ont of place here to call the attention of professional men to a practice very common amongst them, of being themselves the attesting witnesses to deeds affecting the interests of their own clients, a practice grown up, in all probability, from a very proper desire to have deeds attested by persons familiar with the requisites to their due execution. This practice is attended with the inconvenience, that when a solicitor is placed in the witness-box to prove the execution of a deed he has attested, he must disclose all the circumstances connected with the execution, however injurious they may be to his client, who thereby, to that extent, loses the privilege he would otherwise have had, of his solicitor being protected from discovering transactions that came to his knowledge in the character of his professional adviser.m
The several grounds upon which a deed is void ab initio, or voidable from defects existing at its execution, have been already stated. also be avoided by matter ex post facto, as by a disclaimer or disagreement, or on account of any
interlineation, addition, or erasure," made by any of the parties to it, but not if made by a mere stranger ;o and in a modern case, it was determined that some trifling alteration, and the filling up some blanks after the execution by some of the parties, leaves the deed valid as to the persons that had executed it, if
Lord Saye and Sele’s case, 10 Mod. 40; Sandford v. Remington, 2 Ves. 189; and Lord cham's Observations in Greenough v. Gaskell, 1 M. and K. 109.
Pigot's case, 11 Rep. 26.
A deed may
the alteration has not affected the situation in which they stood. It need hardly be observed, that no person will be allowed to set up an erasure or alteration made in a deed by himself as a reason for avoiding such deed.
Cancelling a deed by destruction of the seals, or otherwise, will, unless it is the work of time or accident, render a deed void, but not so far as to divest any estates previously vested by such deeds."
Deeds obtained by fraud may be avoided either at law or in equity. The case above mentioned of a deed being misread is an instance of this.
It hardly comes within the compass of a work of this character to enter into all the many cases in which deeds are by statute, or the decisions of the several courts of law or equity, declared void or voidable for reasons of policy, but reference may be made to the case of deeds taken as rewards for procuring marriages, or appointments to offices of trust under government, purchases by trustees, assignees of bankrupts, or solicitors,' deeds before marriage in fraud of the marital," or conjugal rights,' and conveyances by the king's debtors, which are void as against the crown."
11.OF THE DIFFERENT PARTS OF A DEED.
There are certain words which the law has pointed out as the only proper vehicle for conveying cer
4 Touch. 70; Seaton v. Henson, 2 Show. 29.
'Hudson's case, Prec. in Chy. 235; Bolton v. Bp. of Carlisle, 2 H. Bl. 259.
* Ex parte James, 8 Ves. 337.
u Lance v. Norman, 2 Ch. Rep. 79; Howard o. Hooker, Id. 81.
" Carleton v. Dorset, 2 Vern. 17; Ball v. Montgomery, 2 Ves. 194 ; Turton v. Benson, 1 P. Wms. 496; Palmer v. Neave, 11 Ves. 165.
* Favel's case, Dyer, 160, a; 12 Rep. 3; but see 2 Vic.c. 11.
tain ideas. Thus a fee-simple cannot be granted without the word “heirs," nor an estate tail without the words “ heirs of the body ;" so the word * exchange" is essential in a deed of exchange,' and a warranty of real property can be created by deed by no other expression than warrant ;a but with these few exceptions it may be laid down, that if a deed contains a clear statement of the party's meaning, it will be supported in whatever form that meaning is expressed ; but as the forms of deeds at present in use have (to adopt the words of Mr Justice Blackstone) “ been well considered, and settled by the wisdom of successive ages, it would be imprudent to depart from them without good reason or urgent necessity,” a deed may now be considered as divided into the eight parts, which are mentioned in order below.
1. The premises, in which are found the names, additions, and titles of the parties. The recitals of such deeds, and other matters, as will explain the nature and object of the deed. The consideration on which the deed is founded. The grant, and the certainty of, or such description as points with certainty to, the grantor, grantee, and thing granted, and the exception of that part (if any) of the thing granted as is not intended to pass by such grant.b
2. The habendum, the object of which is to declare what estate or interest is granted, but which is often done in the premises, and in such case the habendum can only qualify the estate given in the premises, as by enlarging, lessening, or explaining it, for if it were repugnant, then it would be void, and the estate given in the premises take effect. Thus, if lands are given in the premises, to A. and his heirs, habendum to A. for life, the habendum would be void, and A. would take the fee; but if the habendum had been to A. and the heirs of his body, then the habendum
· Litt. 1.
y Co. Litt. 20, b. 2 Co. Litt. 51, b. : Co. Litt. 334, a.
b Touch. 77. e Co. Litt. 21, a, and.299, a; 8 Rep. 56, b, Plowd. 153. would stand, and A. take only an estate tail.d In one case it has been held, that where the estates given by the premises and the habendum can consistently stand together, they shall do so, as in the case of a grant to A. and the heirs of his body, habendum to A. and his heirs, A. was held to take an estate tail with a remainder in fee.
3. The tenendum, which formerly described the tenure by which the estate was to be holden, but since almost all tenures are reduced to free and common socage, the only relic of this part of a deed which custom has retained are the words “to hold.”
4. The reddendum, by which some thing is reserved out of the thing granted, as ten shillings, a pepper-corn, or two days' ploughing, &c.; and with respect to such reservation, it must be remarked, that any thing newly created and reserved can be reserved to the grantor and his heirs only ;' but if the reservation is of something previously issuing out of the land, then it may be reserved to the lord of the fee, or other person to whom such service or rent was previously payable. Thus a rent reserved on the grant of a lease being a new thing, must be made payable to the lessor and his heirs, or other persons entitled to the reversion after him, as a remainderman; whereas, on an assignment of a lease, in which rent was reserved, such rent should be made payable to the original lessor, or other person entitled to the reversion, though such person should be a stranger to the deed of assignment.
5. The condition, which is a clause of contingency on the happening of which the estate granted may be defeated.
6. The warranty comes next in order. By it the grantor doth for himself and his heirs warrant and secure to the grantee the estate granted, which is a kind of covenant real to secure to the grantee and his heirs the enjoyment of the thing granted against
d Thurman's 2 Roll. Abr. 68. • 8 Rep. 154, b; 1 Rep. 21, a.
' 8 Rep. 71. Co. Litt. 47, a; Sheph. T. 80.
all men. The books contain a great deal of learning on the subject of warranties, but it is not now one of much general importance, as, by two statutes passed in the 3d and 4th Will. IV. they were practically done away with, for by the 39th sec. of cap. 27, it was enacted that no warranty which might be made after December 31, 1833, should toll or defeat any right of entry or action for the recovery of land; and by the 14th sec. of the 74th cap., all warranties made after the same period by any tenant in tail were made absolutely void against the issue in tail, and all persons whose estates were to take effect after the determination, or in defeazance of the estate tail ; and by the 30th sec. of the former act the writ of warrrantia charta was swept away with many other obsolete ones, and, indeed, long before these statutes, covenants for title had entirely superseded the warranty.
7. The covenants by which a party stipulates for the truth of any fact or statement, as that he is seised in fee of the estate conveyed, or agrees to perform, or refrain from doing any act; of such a character are the usual covenants for payment of money in a mortgage, or for further assurance in a conveyance.
A covenant to refrain from performing a legal duty, or to do an illegal or immoral act, or any act impossible at the time of entering into the covenant, is void; but if the act does not become impossible till afterwards, the covenant will be supported.
8. The conclusion, in which the execution and date of the deed are mentioned or referred to.
III. OBSERVATIONS ON THE PREPARATION OF DEEDS.
As several statutes and powers require deeds executed under their authority to be by indenture, it is the safest plan to make use of that sort of deed in preference to deeds poll in all cases. An indenture, according to Coke's definition, Co. Litt. 229, a, is a