CHAPTER THE TWENTIETH. OF ALIENATION BY DEED. IN N treating of deeds I fhall confider, first, their general nature; and, next, the feveral forts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; fecondly, it's requifites; and, thirdly, how it may be avoided. I. FIRST then, a deed is a writing sealed and delivered by the parties. It is fometimes called a charter, carta, from it's materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, xar so, because it is the moft folemn and authentic act that a man can poffibly perform, with relation to the difpofal 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 fo folemnly and deliberately avowed. 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 fhould be cut or indented (formerly in acute angles inflar dentium, but at present in a waving line) on the top or fide, to tally or correfpond with the other; which deed, fo made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the fame piece of parchment, with fome word or letters of the alphabet written between them; through which the parchment was cut, either in a strait or a Co. Litt. 171. b Plowd, 434. T 4 indented indented line, in fuch a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonifts; and with us chirographa, or hand-writings; the word cirographum or cyrographum being usually that which was divided in making the indenture: and this cuftom is ftill preferved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into ufe, without cutting through any letters at all; and it feems at present to ferve for little other purpose, than to give name to the fpecies of the deed. When the feveral parts of an indenture are interchangeably executed by the feveral parties, that part or copy which is executed by the grantor is usually called the original, and the reft 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 fhaved quite even; and therefore called a deedpoll, or a fingle deed *. II. We are in the next place to confider the requifites of a deed. The first of which is, that there be perfons 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 expreffed by fufficient names f. So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a leffor, a leffee, and a thing demised. SECONDLY; the deed muft be founded upon good and fufficient confideration. Not upon an ufurious contract; nor upon fraud or collufion, either to deceive purchafors bona fide, or juft and lawful creditors; any of which bad confiderations will vacate the deed. A deed alfo, or other grant, made without any confideration, is, as it were, of no effect; for it is conftrued to enure, or to be effectual, only to the use of the grantor himself. The confideration may be either a Lyndew. l. 1. t. 10. c. I. d Mirror. c. 2. §. 27. e Ibid. Litt. §. 371, 372. f Co. Litt. 35. Stat. 13 Eliz. c. 8. h Stat. 27 Eliz. c. 4. i Stat. 13 Eliz. c. 5. * Perk. §. 533. good, good, or a valuable one. A good confideration is fuch as that of blood, or of natural love and affection, when a man grants an eftate to a near relation; being founded on motives of generofity, prudence, and natural duty: a valuable confideration 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 juftice. Deeds, made upon good confideration only, are confidered as merely voluntary, and are frequently fet afide in favour of creditors, and bona fide purchafors. THIRDLY; the deed must be written, or I prefume 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 ftone, board, linen, leather, or the like, it is no deed ". Wood or stone may be more durable, and linen less liable to rafures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those defirable qualities for there is nothing else fo durable, and at the same time fo little liable to alteration; nothing so fecure from alteration, that is at the fame time fo durable. It must alfo have the regular ftamps, imposed on it by the several ftatutes 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 ftatute 29 Car. II. c. 3. enacts, that no leafe or eftate in lands, tenements, or hereditaments, (except leafes, not exceeding three years from the making, and whereon the reserved rent is at least two thirds of the real value) fhall be looked upon as of greater force than a leafe or estate at will; unless put in writing, and figned by the party granting, or his agent lawfully authorized in writing. FOURTHLY; the matter written must be legally and orderly fet forth that is, there must be words fufficient to fpecify the agreement and bind the parties: which fuffici} 3 Rep. 834 Co. Litt, 229. F. N. B, 122. ency For ency must be left to the courts of law to determine". it is not abfolutely neceffary in law, to have all the formal parts that are usually drawn out in deeds, fo as there be fufficient 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 cleareft, diftincteft, and most effectual manner, and have been well confidered and settled by the wisdom of fucceffive ages, it is prudent not to depart from them without good reafon or urgent neceffity; 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 alfo contain the recital, if any, of fuch deeds, agreements, or matters of fact, as are neceffary to explain the reasons upon which the prefent tranfaction is founded: and herein also is fet down the confideration 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. The office of the babendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and fometimes is performed, in the premises. In which cafe the habendum may leffen, enlarge, explain, or qualify, but not totally contradict or be repugnant to, the eftate granted in the premifes. 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-fimple expectant thereon'. But, had it been in the premifes "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 fhall not afterwards be taken away, or devested, by it. The tenendum, "and to hold," is now of very little ufe, and is only kept in by cuftom. It was fometimes for n Co. Litt. 225. • lbid. 6. See appendix, No. II. §. 2. pag. v. r Co. Litt. 21. 2 Roll. Rep. 19. 23. Cro. Jac. 476. $ 2 Rep. 23, 8 Rep. 56. merly merly used to fignify the tenure, by which the estate granted was to be holden; viz. "tenendum per fervitium militare, in "burgagio, in libero focagio, &c." But, all these being now reduced to free and common focage, the tenure is never specified. Before the ftatute of quia emptores, 18 Edw. I. it was alfo fometimes used to denote the lord of whom the land fhould be holden: but that statute directing all future purchafors 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 antient charters, that the tenements fhall be holden de capitalibus dominis feodit, but, as this expreffed nothing more than the ftatute had already provided for, it gradually grew out of use. 4. NEXT follow the terms or ftipulations, if any, upon which the grant is made: the first of which is the reddendum or refervation, whereby the grantor doth create or reserve fome new thing to himself out of what he had before granted. As "rendering therefore yearly the fum of ten fhillings, or a pepper corn, or two days ploughing, or the like "." Under the pure feodal fyftem, this render, reditus, return, or rent, confifted in chivalry principally of military services; in villenage, of the most flavish offices; and, in focage, it ufually confifts of money, though it may confist of services ftill, or of any other certain profit". To make a reddendum good, if it be of any thing newly created by the deed, the refervation must be to the grantors, or fome, or one of them, and not to any stranger to the deed *. But if it be of antient services or the like, annexed to the land, then the refervation 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 claufe of contingency, on the happening of which the estate granted may be defeated; as "provided always, that if the mortgagor shall pay the mort |