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any instrument delivered as a deed, and which either itself passes an interest, or property, or is in affirmance or confirm. ation of something whereby an interest or property passes, is a deed.” t
A document is not a deed merely because it is sealed. Many kinds of documents are made under seal and yet are not deeds. As instances of such, probates of wills, certificates of magistrates, and awards may be mentioned: (see Reg. v. Morton, sup.; Chanter v. Johnson, 14 M. & W. 408, at p. 411, per Baron Parke). Yet sealing is one of the essential attributes of a deed. It is more essential to a valid deed from one point of view than signature. Signature by the execut. ing party is in theory of law unnecessary: (R. v. Goddard, sup. ; Cromwell v. Grunsden, 2 Salk. 462).
Here we may notice a controversy which has from time to time been raised whether a deed duly sealed and delivered, but not signed, is valid in cases where the Statute of Frauds requires a transaction to be evidenced by a document signed by the person to be charged. The view expressed by Barons Parke, Alderson, and Rolfe in Cherry v. Heming (4 Ex. 531, at p. 636) is no doubt the correct one—namely, that the sta. tute only struck at parol agreements and transactions, and not at agreements and transactions evidenced by the most solemn form of document known to the law. Consequently where a deed has been executed by sealing and delivery the Statute of Frauds does not apply.
Attestation by witnesses stands in much the same position as regards the validity of a deed quá deed, as does the signature by the executing party. In other words, attestation is in theory unnecessary: (see Garrett v. Lister, 1661, 1 Lev. 25). But both are desirable as working for efficacy. Just as the efficacy of a legal document is secured by the fullness and clearness of its terms, so also is the efficacy of a deed, as an item of evidence—as a proving medium, to use an unconventional term—secured by the readiness with which its authenticity can be established. In practice, signing by the executing party and attestation by a witness or witnesses is almost universally adopted as a custom of expediency. There are, of course, numerous occasions, where such formalities are made necessary by statute; and other occasions will occur to the reader where signing and attestation are necessary, such, e.g., where the document exercises a power, formalities for
the exercise of which have been prescribed by the donor of the power.
There can be no doubt but that delivery is by far the most important part of the formalities observed in executing a deed. Yet it is the one part upon which least stress is usually made in practice. In the words of Mr. Justice Keating in Tupper v. Foulkes (9 C. B. N. S. 797, at p. 803) the operative part of the ceremony is the delivery. “Where a contract,” said Baron Martin in Xenos v. Wickham (14 C. B. N. S. 435, at p. 473), “is to be by deed, there must be delivery to perfect it. This is a positive absolute rule of the common law, which nothing but an Act of Parliament can alter, and which, in my judgment, ought not to be frittered away.” The reason why delivery holds in law such an important place in the formalities attending the execution of a deed is no doubt due to the fact that it is the overt act which most unequivocally evidences the intention of the party delivering it to adopt the document as of binding force. The whole significance of the act of executing a deed is that the person executing it deliberately adopts it as binding upon him. By the outward act of delivery all question of intention to the contrary is placed beyond doubt. Intention, of course, is the foundation of the whole matter.
There are some interesting authorities upon the question what amounts to the delivery of a deed. “No particular technical form of words or acts is necessary to render an instrument the deed of the party sealing it,” said Mr. Justice Blackburn in Xenos v. Wickham (16 L. T. Rep. 800; L. Rep. 2 H. L. 296, at p. 312). “The mere affixing the seal does not render it a deed; but as soon as there are acts or words sufficient to shew that it is intended by the party to execute it as his deed presently binding on him, it is sufficient. The most apt and expressive mode of indicating such an intention is to hand it over saying, ‘I deliver this as my deed,” but any other words or acts that sufficiently shew that it was intended to be finally executed will do as well.
In Stanton v. Chamberlain (Owen, 95) an action of debt was brought on a bond, and the defendant raised the plea non est factum—in other words, that he had not executed it. The jury found that the defendant sealed the bond and cast it on the table, and the plaintiff came and took it up and carried it away without saying anything. The question raised was whether this amounted to a delivery of the bond. The Judges resolved that if the jury had found that the defend. ant had sealed the bond and cast it on the table towards the plaintiff, to the intent that the plaintiff should take it as his deed, and the plaintiff had taken the bond and went away, that would have been a good delivery. And the same would have been the case had the plaintiff, after sealing it and cast. ing it on the table, taken it up and gone away with it at the command or with the consent of the defendant. But inas. much as the jury had found that the defendant had only sealed it and cast it on the table, and the plaintiff took it and went away with it, the Court held that there had not been a sufficient delivery because it might have been that the defendant sealed the document intending to reserve it to himself until other things had been agreed. The report continues: “But it was said that it might be accounted to be defendant’s deed because it is found that he sealed it, and cast it on the table, and the plaintiff took it, &c., and it is not found that the defendant said anything, and therefore, because he did not say anything, it will amount to his consent nam qui tacet consentire videlur.” This presumably was counsel’s argument. The report concludes “But to this it was answered, that it is not found that the defendant was present when the plaintiff took it, and if the defendant had sealed, and went away, and then the plaintiff came and took it away, then clearly it is not the deed of the defendant.”
The last-mentioned case admirably illustrates the whole principle underlying the law's necessity for delivery. Notwithstanding the fact that it was decided so long ago as the year 1587, it may be said to be the leading case on the law of delivery of deeds. There are other cases much to the same effect. They go to shew that some act of consent on the part of the person setting up a plea of non est factum suffices to make a delivery valid. In R. v. Longnor (1833, 4 B. & Ad. 647) an indenture had been prepared for binding a boy apprentice. The apprentice and his father, both being unable to write, procured a third person to write their names opposite two of the seals. The document was not read over to them, but the boy immediately afterwards took it to the master and left it with him, afterwards stating that when he did so, he considered himself bound. The boy entered the master's service under the indenture. The Court held that the indenture was sufficiently executed and delivered.
In passing, it may be observed that it is well established that the mere fact that a deed is retained by the executing party does not of itself prevent the Court holding the execution of the deed to have been perfected by the delivery by that party: (see Xenos v. Wickham, 16 L. T. Rep. 800; L. Rep. 2 H. L. 296). *
Sometimes delivery is merely confirmatory. That is to say the act of delivery, or the conduct which is taken to amount to delivery, is not intimately associated with the other parts of the ceremony of execution, but follows perhaps at some distance of time. This is sometimes called redelivery. It occurs where there has been some defect in the original execution so that a party is not bound by the provisions of the document. By his subsequent act of redelivery he adopts the document as his deed and thereby becomes bound by it. Redelivery may therefore be defined as an acknowledgment made subsequently to the purported execution of a document purporting to be the deed of the person making such acknowledgment that the document is a deed of that person, and binds him according to its tenor: (see Tupper v. Foulkes, 9 C. B. N. S. 797; Hudson v. Revett, 5 Bing. 368). Like the question of delivery, the question of redelivery is an overt act from which intention is presumed. But in both cases the question of intention is a question of fact.
In the recent case, mentioned in the opening lines of this article, the material facts were as follows: A lady desired to make a gift of certain chattels to her daughter who resided with her, and she gave instructions that a deed should be prepared. This was done, and the document was executed for her by her attorney. Subsequently, in 1898, the document was brought by her legal adviser and read over to her, and it was arranged that she should send him the original inventory of the chattels and that he should keep it with the document. The inventory was accordingly afterwards sent by her to him inside a wrapper on which she had written some words to the effect that the chattels were then the property of the daughter. The power of attorney was not in the possession of her legal adviser, nor had it been prepared by him. Subsequently the house where the mother and daughter resided was sold, and most of the chattels were taken to another residence and some of them to other houses
belonging to the mother. Some of the chattels were from time to time disposed of by the mother. The daughter was subsequently placed under medical care, and ceased to reside
with her mother, who in certain proceedings swore an affi
davit as to the kindred and property of the daughter, but did not mention the chattels comprised in the deed of gift. On the death of the mother it transpired that the power of attorney was not sufficiently wide to authorise the execution of the deed. Her trustees applied to the Court to have the ownership of the chattels determined. It was claimed on be: half of the daughter that there had been a redelivery of the document by the mother so as to make it a valid deed. The Court of Appeal, affirming the decision of Mr. Jus. tice Joyce, held that the mother had redelivered the document so as to make it a valid deed passing the property in the chattels to the daughter. This notional redelivery was held to have taken place at the interview in 1898, when, as
the evidence shewed, the mother was put in full possession
of the provisions of the deed. In the words of Lord Justice Buckley (108 L. T. Rep. 549; (1913) 1 Ch., at p. 48)), at that interview she had in substance said: “I acknowledge that as my deed; take it and keep it as such.”
The case is a clear modern authority upon the question of redelivery of deeds and is peculiar in this, that heretofore the authorities on this question have dealt with deeds made for valuable consideration, whereas in this case the rede. livered deed was a voluntary deed of gift.