Fourthly, the matter written must be legally or 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.(n) For it is not absolutely necessary in law to have all the formal parts that are [*298 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(0) order. 1. The premises may be used to set forth the number and names of the parties, with their additions or titles. They 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 granted.(p) 2, 3. Next come the habendum and tenendum.(g) 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 forever," or vice versa; here A. has an estate-tail, and a fee-simple expectant thereon.(r) But, had it been in the premises "to him and his heirs;" habendum "to him for life," the habendum would be utterly void;(s) 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 formerly *used to signify the tenure by which the estate granted was to be [*299 holden; viz., "tenendum per servitium 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 tha* (*) Co. Litt. 225. (0) Ibid. 6. (P) Sen Appendix, N° II. 21, page v. (9) Ibid. (7) Co. Litt. 21. 2 Roll. Rep. 19, 23. Cro. Jac. 476. Mohun, 3 Swanst. 435. Fowle vs. Freeman, 9 Ves. 354. Western vs. Russell, 3 Ves. & Bea. 192. Lord Eldon, without expressly deciding the point, seems to have leaned to lord Redesdale's view of the question, (Huddlestone vs. Biscoe, 11 Ves. 592;) and Sir Thomas Plumer wished it to be considered whether, when one party has not bound himself, the other is not at liberty to enter into a new agreement with a third person. Martin vs. Mitchell, 2 Jac. & Walk. 428.-CHITTY. By statute 8 & 9 Vict. c. 106, s. 4, a feoffment made after the 1st of October, 1845, other than a feoffment made under a custom by an infant, shall be void at law unless evidenced by deed; and it is also enacted that a partition and an exchange of any hereditaments not being copyhold, and a lease, required by law to be in writing, of any hereditaments, and an assignment of a chattel interest not being copyhold in any hereditaments, and a surrender in writing of any interest therein not being a copyhold interest, and not being an interest which might by law have been created without writing, made after the 1st day of October, 1845, shall also be void at law, unless made by deed.-STEWART. If a deed correctly describe land by its quantities and occupiers, though it describe it as being in a parish in which it is not, the land shall pass by the deed. 5 Taunt. 207. A deed made with blanks, and afterwards filled up and delivered by the agent of the party, is good. 1 Anst. 229. 4 B. & A. 672. And the palpable mistake of a word will not defeat the manifest intent of the parties. Doug. 384.-CHITTY. The maxim in pleading in favour of following approved precedents, "nam nihil simul inventum est et perfectum," may well be applied to conveyancing. Co. Litt. 230, a. Frequently the reason for using particular expressions will appear after many years' study, when before, upon a cursory consideration, the words seemed unnecessary, if not improper.-CHITTY. VOL. I.-40 625 statute directing all future purchasers to hold, not of the immediate grantor but of the chief lord of the fee, this use of the tenendum hath been also ant quated; though for a long time after we find it mentioned in ancient charters that the tenements shall be holden de capitalibus dominis feodi;(t) but as this erpressed 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."(u) Under the pure feodal system, this render, reditus, return, or rent, consisted in chivalry principally of military services; in villeinage, 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 profit.(w) 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.(x) But if it be of antient services or the like, annexed to the land, then the reservation 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 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 *5001. upon such a day, the whole estate granted shall de *300] termine;" and the like.(z) 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 vassal's title to enjoy the feud was disputed, ne might vouch, or call the lord or donor to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense. (b) And so, by our antient 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 certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered.(c) Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage, (which was called homage auncestral,) this also bound the lord to warranty;d) the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty, (e) because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title.(ƒ) But in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffor only is bound in the implied warranty, and not his heirs ;(g) because it is a mere personal contract on the part of the feoffor, the tenure (and of course the antient services) resulting back to the superior lord of the fee. And in other *301] forms of alienation, gradually introduced since that statute, *no warranty whatsoever is implied;(h) they bearing no sort of analogy to the original feodal donation. And therefore in such cases it became necessary to add an express clause of warranty to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant.(i) These express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet if a cause of warranty was added to the ancestor's grant, this cove nant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him a recompense in lands of equal value: the law, in favour of alienations, supposing that no ancestor would wantonly disinherit his next of blood;(k) and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor's warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was lineal or collateral to the title of the land. Lineal warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty; as, where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with warranty, this was lineal to the younger son.(1) Collateral warranty was where the heir's title to the land neither was, nor could have been, derived from the *warranting ancestor; as, where a younger brother released to his father's disseisor, with warranty, this was collateral to the elder brother.(m) But [*302 where the very conveyance to which the warranty was annexed immediately followed a disseisin, or operated itself as such, (as, where a father tenant for years, with remainder to his son in fee, aliened in fee-simple with warranty,) this, being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseisin; and, being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor.(n) In both lineal and collateral warranty, the obligation of the heir (in case the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor.(0) But though, without assets, he was not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for if he could succeed in such claim, he would then gain assets by descent, (if he had them not before,) and must fulfil the warranty of his ancestor: and the same rule(p) was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon the son (who was the heir of both his parents) barred him from claiming his maternal inheritance; to remedy which the statute of Gloucester, 6 Edw. I. c. 3, declared, that such warranty should be no bar to the son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III. *to make the same provision universal, by enacting, that no collateral warranty should be [*303 a bar, unless where assets descended from the same ancestor;(q) but it then proceeded not to effect. However, by the statute 11 Hen. VII. c. 20, notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he also be heir to the wife. And by statute 4 & 5 Anne, c. 16, all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession, shall be void against his heir. By the wording of which last statute it should seem that the legislature meant to allow, that the collateral warranty of tenant in tail in possession, descending (though without assets) upon a remainderman or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets should not bar the issue in tail, yet they held such warranty with assets to be a sufficient bar :(r) which was there fore formerly mentioned(s) as one of the ways whereby an estate-tail might be destroyed; it being indeed nothing more in effect than exchanging the lands entailed for others of equal value. They also held that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue; and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate-tail and all remainders and reversions expectant thereon.(t) And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases make a good conveyance in feesimple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion.s *7. After warranty usually follow covenants, or conventions, which *304] are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus the grantor may covenant that he hath a right to convey; or for the grantee's quiet enjoyment; or the like; the grantee may covenant to pay his rent, or keep the premises in repair, &c.(u) If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have () Litt. 712. 2 Inst. 293. (*) Co. Litt. 374. 2 Inst. 335. 8 But now, by the statute 3 & 4 W. IV. c. 74, all warranties entered into after the 31st December, 1833, by a tenant in tail, shall be void against the issue in tail and remainderman. By the statute 3 & 4 W. IV. c. 27, s. 39, the effect of warranty in tolling a right of entry was taken away; and by the same statute the writ of warrantia charta and the writ of voucher, by the help of which the party wishing to obtain the protection of warranty might have defended himself, were also abolished. So that warranties of real estate, which have indeed been long disused, cannot now have any practical operation. -KERR. 9 As to covenants in general, see Com. Dig. Covenant. The word "covenant” is not essentially necessary to the validity of a covenant, for a proviso to pay is a covenant, and may be so declared upon. Clapham vs. Moyle, Lev. 155. And it may be inferred from the exception in another covenant. 16 East, 352. A vendor's covenant that he hath right to convey is usually only against his own acts, and not absolutely that he has a good title. Sometimes, when he takes by descent, he covenants against his own acts and those of his ancestor; and if by devise, it is not usual for him to covenant against the acts of the devisor as well as his own. But the usual words "notwithstanding any act by him done," &c. are generally to be taken as confining the covenant to acts of his own. 2 Bos. & Pul. 22, 26. Hob. 12. See the constructions on covenants for good title, 2 Saund. 178, a.; b. 181. Covenants which affect, or are intimately attached to, the thing granted, as to repair, pay rent, &c., are said to run with the land, and bind not only the lessee, but his assignee also, (5 Co. 16, b.,) and enure to the heir and assignee of the lessor, even although not named in the covenant. See 2 Lev. 92. As are also those which the grantor makes that he is seised in fee, has a right to convey, for quiet enjoyment, for further assurance, and the like, which enure not only to the grantee, but also to his assignee, (1 Marsh, 107, S. C. 5 Taunt. 418. 4 M. & S. 188, id. 53,) and to executors, &c. according to the nature of the estate. 2 Lev. 26. Spencer's case, 5 Co. 17, b. 3 T. R. 13. And these are cove nants real, as they either pass a realty or confirm an obligation so connected with realty that he who has the realty is either entitled to the benefit of, or is liable to perform, the obligation. Fitz. N. B. 145. Shep. Touch. c. 7, 161. See, as to right and liability of suing and being sued on these covenants, in case of heirs, assigns, &c., 1 Chitty on Pl. 10, 11, 13, 38, 39, 42.-CHITTY. CHARG assets by descent, but not otherwise; if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty. It is also in some respects a less security, and therefore more beneficial to the grantor; who usually covenants only for the acts of himself and his ancestors, whereas a general warranty extends to all mankind. For which reasons the covenant has in modern practice totally superseded the other. 8. Lastly, comes the conclusion, which mentions the execution and date of deed, or the time of its being given or executed, either expressly, or by refer ence to some day and year before mentioned.(w) Not but a deed is good, although it mention no date; or hath a false date; or even if it hath an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is, delivered, can be proved.(x)" I proceed now to the fifth requisite for making a good deed; the reading of it. This is necessary wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited: unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party.(y) 12 *Sixthly, it is requisite that the party, whose deed it is, should seal,12 [*305 and now in most cases I apprehend should sign it also.13 The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely antient. We read of it among the Jews and Persians in the earliest (0) Appendix, No II. 2, page xii. (v) 2 Rep. 3, 9. 11 Rep. 27. 10 The executors and administrators are bound by every covenant without being named, unless it is such a covenant as is to be performed personally by the covenantor, and there has been no breach before his death. Cro. Eliz. 553.-CHRISTIAN. This is not a correct description of a covenant real, which is that whereby an obligation to pass something real is created, as lands or tenements, or the obligation of which is so connected with the realty that he who has the latter is either entitled to the benefit of, or liable to perform, the other. Fitz. N. B. 145. Shep. Touch. c. 7, p. 161. Thus, a warranty is a real covenant, a covenant to levy a fine, &c. The heirs of the covenantor, with assets descended, may be sued for the breach of any covenant, whether real or personal, to the performance of which they are expressly bound. On the other hand, exe cutors and administrators are bound by all covenants of the testator, whether named or not, except the thing which was the object of the covenant related to the realty or was something to be performed personally by the covenantor, the obligation to perform which, of course, ended with his life. Cro. Eliz. 553.-Coleridge. 11 The date of a deed is not essential. Com. Dig. Fait, B. 3. In ancient times the date of the deed was generally omitted; and the reason was this, viz., that the time of prescription frequently changed, and a deed dated before the time of prescription was not pleadable, but a deed without date might be alleged to be made within the time of prescription. Dates began to be added in the reigns of Edward II. and Edward III.—. CHRISTIAN. Where a deed purported to bear date on the 20th of November, and was executed by one of two defendants on the 16th of that month, and by the other on a previous day, it was held to be immaterial, it not appearing that a blank was left for the date at the time of the execution. 6 Moore, 483. A person may declare in covenant that the deed was indented, made, and concluded on a day subsequent to the day on which the deed itself is stated on the face of it to have been indented, made, and concluded. 4 East, 477. And where there is no date to a deed, and it directs something to be done within a certain time after its supposed date, the time will be calculated from the delivery. 2 Lord Raym. 1076. And see Bac. Abr. Leases, I. 1. Com Dig. Fait, B. 3.-CHITTY. 12 See in general, Com. Dig. Fait, A. 2. Sealing may be averred in pleading. 1 Saund. 290, n. 1. If A. execute a deed for himself and his partner, by the authority of his partner and in his presence, it has been held a good execution, though only sealed once, (4 T. R. 313. 3 Ves. 578;) though it is an established rule that one partner cannot bind the other partners by deed. 7 T. R. 207. A person executing a deed for his principal should sign in the name of the principal, (6 T. R. 176,) or thus, "for A. B., (the principal,) E. F., his attorney." 2 East, 142.-CHITTY. 13 Signing seems unnecessary, unless in cases under the statute of frauds, and deeds executed under powers. Com. Dig. Fait, B. 1. 17 Ves. Jr. 459.-CHITTY. |