(c) PRIVATE GRANT-DEEDS.

CHAPTER LXXXVII.

REQUISITES OF DEEDS.

§ 1092. Aliens, as parties to deeds.

§ 1093. Corporations, as parties to deeds.

§ 1094. Co-owners and partners, as parties to deeds.

Sufficient Naming or Description of the Parties.

§ 1095. Naming, or description, of grantors.

§ 1096. Naming, or description, of grantees.

Other Elements of Contract- Consideration Consent Subject Matter.

§ 1097. The consideration. § 1098. Consent, meeting of the minds.

§ 1099. Operative words of conveyance in a deed.

§ 1100. Subject matter of a deed.

§ 1101. The other requisites of a deed.

§ 1083. Deeds How further Discussed. The kinds and general groups of deeds, or grants, have been explained above. The present chapter begins the remaining discussion of those instruments. This will apply generally to any kind of deed, whether operating as a public grant, or an office grant, or a private grant; but the last named form is the one most frequently dealt with in connection with what remains to be said. The deed, then, the writing, containing a contract, signed, sealed, and delivered, — is to be thought of, in this chapter

and the four that follow, primarily as a conveyance of realty from one private individual to another. Its requisites are to be discussed in the present chapter; in the next chapter, its execution, embracing the signing, sealing, delivery, and acceptance, and the witnessing and reading when needed; in the next, its acknowledgment or proof, and record, and the rules as to priority among deeds relied on by adverse claimants of realty; in the next, the forms of deeds, as indentures or a deeds poll, and their component parts, including the important covenants for title; and in the last, their cancellation or destruction, and the consequent termination of their effects on titles.

§ 1084. Summary of the Requisites of a Deed. Following quite closely the arrangement prescribed by Lord Coke, but with less numerous headings, the requisites of a deed may be conveniently grouped and dealt with in the following order: first, a writing, on parchment or paper; second, parties able to contract capable grantors and grantees; third, sufficient naming or description of the parties; fourth, the other essentials of a contract consideration, assent, or meeting of the minds shown by apt words, and a subject matter; and fifth, execution, embracing signing, sealing, delivery, reading, and witnessing when necessary, and for many purposes now involving acknowledgment or proof and due record or registration. The fifth group of requisites, as here stated, is simply to be summarized in this chapter for the sake of completeness, and its fuller discussion will be reserved for the succeeding chapters.

Writing on Parchment or Paper.

How to be Writ

§ 1085. Materials Paper or Parchment ten. The courts have never departed from the original requirement that a deed shall be written on parchment or paper. Of course paper is now the material most commonly used. The

1 Lord Coke's designation of the ten essentials of a deed is as follows: first, a writing; second, on parchment or paper; third, a person able to contract; fourth, a sufficient name; fifth, a person able to be contracted with; sixth, a sufficient name; seventh, a thing to be contracted for subject matter; eighth, apt words of conveyance, required by

law; ninth, sealing; tenth, delivery. Co. Lit. 35 b; 3 Wash R. P. (6th ed.) § 2087. To this classic enumeration of the ten common-law essentials of a deed modern statutes have added an eleventh -its signing, usually by the grantors only, but sometimes by all the parties. §§ 1103-1105, infra.

reasons given for insisting on these two substances are that they most readily take and longest retain the ink, are the least likely to be altered, vitiated, or corrupted, and are not so much affected as are other available materials by the lapse of time.1 Properly the writing should be with ink, but, if lead pencil or other substances easily erased be employed, it is prima facie good. When, however, a deed is written partly with ink and partly with lead pencil, and the ink portions make sense and can be read and understood by themselves, the lead pencil parts are regarded as merely deliberative, and are excluded unless it is clearly shown that they were meant to form a portion of the instrument. The same preference is given to manuscript over other methods of writing; and yet the ink, letters, or characters may be placed upon the deed by printing, typewriting, lithographing, or any other means that makes them clearly legible, The law absolutely demands a writing, and all of it is to be read together when this results in no conflict or uncertainty; in case of doubt or inconsistency, the preference among kinds of writing is for that which most probably shows the deliberate intention of the parties.3

§ 1086. How the Writing may be completed — By an Agent - Filling Blanks. A modern deed takes effect, in most jurisdictions, from the time of its delivery. Therefore, the grantor, acting fairly and in good faith, may give to it, before that time, such form and measure of completeness as he may desire; and he may do this either in person or through a duly authorized agent. When the deed is to be delivered by the grantor personally, authority to complete or alter it before delivery may be given to an agent in any manner; for, in the absence of fraud.

1 Co. Lit. 35 b; 2 Blackst. Com. p. *297; Shep. Touchst. 50, 54; Warren v. Lynch, 5 Johns. (N. Y.) 239,

246.

2 Schneider v. Norris, 2 M. & S. 286; Merritt v. Clason, 12 Johns. (N. Y.) 102, 14 Johns. 484; Miller v. Mowers, 227 Ill. 392; Knox's Estate, 131 Pa. St. 220; Martindale, Conv. (2d ed.) § 15.

3 Ibid.; Thomas v. Taggart, 209 U. S. 385; Heyn v. New York L. Ins. Co., 192 N. Y. 1; 1 Devlin on Deeds, § 136.

The rule of law follows logically that, when a deed is written partly with ink and partly with lead pencil, all will be read together in so far as that is necessary to make sense. It follows,

and unfair dealing, the grantor delivers the deed as his own in the form in which it exists at that time. When the deed is to be delivered for the grantor by his agent, the stringent rule, adhered to in England and by some of the courts of this country, such as those of Massachusetts and California, is that any filling of blanks or alterations, made by such agent after the instrument is executed and handed to him and before he delivers it to the grantee, must be authorized by a valid written power of attorney.2 But probably in a majority of the United States, of which New York, Maine, Vermont, and Minnesota are representatives, it is held that an oral authorization (clearly proved) is sufficient to enable such an agent to deal in this manner with a deed, after its execution and before its delivery by him.3 This view follows the early "principal case," so called, of Texira v. Evans, which has been overruled in England. It appears to be the more logical of the two rules; for, since the instrument has no effect as a deed until it is delivered, what is done to it, other than its execution, before delivery, is mere clerical work for which any form of clear authority should be sufficient.

Since a deed takes effect at its delivery, the general requirement is that it must be complete at that time. Can material blanks be then left in it, such for example as the omission of the name of the grantee, or of part of the description of the land to be conveyed, and can these be so filled thereafter, with the grantor's authority, as to give the deed efficacy in its completed form? The English tribunals, and some of the American, as in Massachusetts, Georgia, and California, answer this question in the negative, and insist that a deed incomplete when delivered is inoperative and void. A different conclusion

1 Ibid.

2 Hibblewhite v. McMorine, 6 M. & W. 200; Davidson v. Cooper, 11 M. & W. 794; Burns v. Lynde, 6 Allen (Mass.), 305; Vose v. Dolan, 108 Mass. 159; Upton . Archer, 41 Cal. 85; Viser v. Rice, 33 Tex. 139; Shep. Touchst. 54. See In re Howgate (1902), 1 Ch. 451.

3 Drury v. Foster, 69 U. S. (2 Wall.) 24, 33; Chauncey v. Arnold, 24 N. Y. 330, opinion of Smith, J., p. 334; Ex parte Decker, 6 Cow. (N. Y.) 60; Dictum in Richardson v. Day, 137 N. Y. 183, 187; South Berwick v. Huntress, 53 Me. 90; McDonald v. Eggleston, 26 Vt. 161, 162; Casserly v. Morrow, 101

Minn. 16; Schwartz v. Ballou, 47 Iowa, 488; Cribben v. Deal, 21 Or. 211.

Not reported, but explained in Moster v. Miller, 4 T. R. 320.

5 Hibblewhite v. McMorine, 6 M. & W. 220; Davidson v. Cooper, 11 M. & W. 794.

6 Davidson v. Cooper, 11 M. & W. 794; In re Howgate (1902), 1 Ch. 451 ; Basford v. Pearson, 9 Allen (Mass.), 387; Ingram v. Little, 14 Ga. 173; Upton r. Archer, 41 Cal. 85; Cross v. State Bank, 5 Ark. 525. See Allen v. Withrow, 110 U. S. 119, 126; Bell v. Kennedy, 100 Pa. St. 215.

is now reached by most of the states of this country; and, while the rule requiring completeness at delivery is recognized as a general principal, yet it is held that, if the grantor authorize the grantee or some other person, as his agent, to fill up a blank after delivery, as by adding a name or the consideration, or completing a description, and this be done as directed, so that the effect is to make such a finished deed as was actually intended by the parties, it is valid, even though such authority may have been given by parol or may be clearly shown by the circumstances of the transaction. Especially is this more liberal doctrine accepted in favor of subsequent innocent purchasers for value, who act on the faith of deeds thus completed. A grantor is clearly estopped, as to such purchasers, to deny the validity of an alteration or insertion placed on the instrument with his consent, whether this was done before or after it was handed to his grantee.2

§ 1087. Alteration of Deeds-Spoliation of Deeds. Changes made on a deed by intermedlers or outside agencies — not by any of the parties to the instrument nor with their consent ordinarily have no effect, in this country at least, on its validity. Such an occurrence may remove important evidence, as when, for example, an unrecorded deed is maliciously destroyed by a wrongdoer, or is eaten away by acid; but, whether this happens before or after delivery, the fact being properly established and other proof being available of what the deed contained as the parties intended it to be, the instrument operates as though it had not been thus affected.

1 Chauncey v. Arnold, 24 N. Y. 330, 337; Forster v. Moore, 79 Hun (N. Y.), 472, 474; Lamb v. Lamb, 18 N. Y. App. Div. 250, 260; Tiddiken v. Cantrell, 69 N. Y. 597, 599; Mickey v. Barton, 194 Ill. 446; Hall v. Kary, 110 N. W. Rep. (Iowa) 930; Casserly v. Morrow. 101 Minn. 16; Drury v. Foster, 69 U. S. (2 Wall.) 24, 33; South Berwick v. Huntress, 53 Me. 90; McDonald v. Eggleston, 26 Vt. 161. Of course, when the grantor is unable to give such authority, or does not do so, the filling of the blanks by the grantee or other agent is a nullity. Drury v. Foster, 69 U. S. (2 Wall.) 24; Richards v Day, 137 N. Y. 183; Doneson v. Barbero, 230 Ill. 138.

2 Ibid. See Moelle v. Sherwood, 148

Such a defacement or injury of

U. S. 21, 27; Coit v. Starkweather, 8 Conn. 289; Webb v. Mullins, 78 Ala. 111; §§ 1009, 1010, supra.

3 Gleason v. Hamilton, 138 N. Y. 353, 359; Waldorf v. Simpson, 15 N. Y. App. Div. 297, 302; Drum v. Drum, 133 Mass. 566; Nickerson v. Swett, 135 Mass. 514; Bigelow v. Stilphens, 35 Vt. 531; Hunt v. Gray, 35 N. J. L. 227; Sewing Machine Co. v. Dakin, 86 Mich. 581. The early rule of England was otherwise; especially when the deed was so affected while in the custody of the person subsequently producing it. Pigot's Case, 1 Co. Rep. 47. But later authorities make it quite clear that so unreasonable a doctrine would no longer be adhered to there. Aldous v. Cornwell, 3 Q. B. 573.