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 syngrapha by the canonists; and with us chirographa, or hand-writingsd; 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, but polled or shaved quite even; and therefore called a deedpoll, or a single deede. : 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 namesf. 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 contracts; nor upon fraud or collusion, either to deceive purchasors bona fide, or just and lawful creditorsi; any of which bad considerations will vacate the deed, and subject such persons, as put the same in ure, to forfeitures, and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect: for it is construed to inure, or to e Lyndew. 1. 1. t. 10. c. 1. d Mirror. c. 2. sec. 27. f Co. Litt. 35. g Stat. 13 Eliz. c. 8. be effectual, only to the use of the grantor himselfk (1). 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 grant1; 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 favor of creditors, and bona fide purchasors. THIRDLY; the deed must be written, or I presume printed, 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". Wood or stone may be more durable, and linen less liable to (1) This I conceive is only true of a bargain and sale; for "herein "it is said to differ from a gift, that this may be without any conside"ration or cause at all; and that hath always some meritorious cause "moving it, and cannot be without it." Shep. Touch. 221. But otherwise a voluntary conveyance is good both in law and equity. Tr. of Eqb. 1. c. 5. s. 2. It used to be thought, if a person made a voluntary grant of lands, although he could not resume them himself, yet if he afterwards made another conveyance of them for a valuable consideration, that the first grant would be void with regard to this purchasor under the 27 Eliz. c. 4. But it was determined by lord Mansfield and the court, that there must be some circumstance of fraud to vacate the first conveyance, the want of consideration alone not being sufficient. Cowp. 705. But if a person is indebted at the time of making a voluntary grant, or becomes so soon afterwards, it will be considered fraudulent and void with respect to creditors, under the 13 Eliz. c. 5. And if a person makes a voluntary grant and afterwards becomes bankrupt, whether he was indebted or not at the time, it will be void by 1 Jac. c. 15.; and the estate granted may be conveyed by the commissioners to the assignees for the benefit of the creditors. 1 Atk. 93. rasures; but writing on paper or parchment unites in itself, more perfectly than 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 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. 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". For [298] it is not absolutely necessary in law, to have all the formal parts that 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 order. 1. THE premises may be used to set forth the number and names of the parties, with their additions or titles. They n Co. Litt. 225. o Ibid. 6. 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 grantedP. 2, 3. NEXT come the habendum and tenendum 9. 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 for ever," or vice versa; here A has an estatetail, and a fee-simple expectant thereon. But, had it been in the premises "to him and his heirs," habendum "to him for "life," the habendum would be utterly void; 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 for[299] merly used to signify the tenure, by which the estate granted was to be holden; viz. “ tenendum per servi"tium 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 purchasors 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 feodit; but as p See appendix, N° II. sec. 2. pag. v. q Ibid. z Co. Litt. 21. 2 Roll. Rep. 19. 23. Cro. Jac. 476. s 2 Rep. 23. 8 Rep. 56. t Append. N° I. Madox. Formul, passim. this expressed nothing more than the statute had already provided for, it gradually grew out of use. 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 therefore yearly the sum of ten shillings, or "a pepper corn, or two days ploughing,' or the like "." Under the pure feodal system, this render, reditus, return, or rent, consisted in chivalry principally of military services, in villenage, 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 profitw. 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. But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the feey. 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 mortgagee 5007. upon such a day, the whole estate [300] "granted shall determine;" and the like. 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 feodal constitution, if the vasal'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 vasal 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 quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by u Append. N° II. sec. 1. pag. iii. w See pag. 41. x Plowd. 13. 8 Rep. 71. y Append. No I, pag. i. z Append. No II. sec. 2. pag. viii. a Ibid. N° I. pag. i. b Feud. 1. 2. t. 8. and 25. |