The case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothing (9) except a lease for years of law, but only in the courts of equity, and they do not bind her personally, but are to be enforced against the specific property only. See Gardner v. Gardner, 7 Paige, 112; Jaques v. Methodist Church, 17 Johns. 548. The circumstance that the wife has a separate estate for her support, does not, at the common law, relieve the husband from the obligation he would otherwise be under to answer for her contracts, and, in many cases, it becomes a matter of no little difficulty to determine whether, under the particular circumstances, a debt is to be regarded as contracted on behalf of the husband, or, on the other hand, as a charge on her separate estate. The following are believed to be correct rules on this subject. 1. Where a married woman contracts a debt, apparently for the benefit of the family, though really for the benefit of her separate estate, but this fact is not known to the creditor, and the circumstances are such as fairly to authorize him to infer the authority and consent of the husband, the creditor has a right to treat the wife as the agent of the husband for the purpose of contracting the debt, and to hold him liable for the payment of the same. And the husband, if he would protect himself against any such liability, must take care that those dealing with the wife have no reason to suppose from his acts, or the manner which she transacts business, that she is acting as his agent, and not on her own behalf. 2. But where the debt is contracted expressly on the faith of the separate estate, the creditor cannot look to the husband for payment, inasmuch as he has not trusted to his responsibility, and had no reason to rely upon it. Bentley v. Griffin, 5 Taunt. 356; Petty v. Anderson, 3 Bing. 170; Lillia v. Airey, 1 Ves. 277; Dyatt v. N. A. Coal Co., 20 Wend. 570. And whether the husband or the wife's separate estate was credited in any particular case is a question of fact. 3. Where a married woman contracts a debt for the benefit of her separate estate, it is presumed that she intended to charge that estate; the like presumption is a reasonable one in any case where the debt is contracted for her own benefit, and no other or different intent is manifested at the time. Story Eq. Juris, § 1400; Owens v. Dickinson, 1 Craig. and Phil. 48; Vanderheyden v. Mallory, 1 N. Y. 452. But it seems that no such presumption can be entertained where she signs a note merely as surety for her husband; and in such case her estate is not liable. Yale v. Dederer, 18 N. Y. 265. See Wolf v. Van Metre, 23 lowa, 397. (9) [If, says Lord Coke: Co. Litt. 2, a. b.; Com. Dig. Aliens, C. 2; see the reasons, Bac. Ab. Aliens, C.; an alien purchase houses, lands, tenements, or hereditaments, to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee-simple, but not to hold for upon office found, that is, upon the inquest of a proper jury, the king shall have it by his prerogative of whomsoever the land is holden; and so it is if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the king." And if an alien purchase to him and the heirs of his body, he is tenant in tail; and if he suffer a recovery, and afterwards an office is found, the recovery is good to bar the remainder; 9 Co. 141; 2 Roll. 321; 4 Leon. 84; Com. Dig. Aliens, C. 2; but the estate purchased by an alien does not vest in the king till office found, until which the alien is seised; and may sustain actions for injuries to the property. 5 Co. 52 b.; 1 Leonard, 47; 4 Leon. 82; Com. Dig. Aliens, C. 4. But though an alien may take real property by purchase, yet he cannot take by descent, by dower, or by the curtesy of England, which are the acts of the law, for the act of law, says Sir Edward Coke, 7 Co. 25 a; Com. Dig. Aliens, C. 1; Bac. Ab. Aliens, c.; 2 Bla. Com. 249, giveth the alien nothing. Therefore, by the common law, Co. Litt. 8, a, an alien could not inherit to his father, though the father were a natural born subject, and the statutes have made no alteration in this respect in favor of persons who do not obtain denization or naturalization. So that an alien is at this day excluded not only from holding what he has taken by purchase, after office found, but from even taking by descent at all; and the reason of this distinction between the act of the alien himself, by which he may take but cannot hold, and the act of the law by which he cannot even take, is marked by Lord Hale in his judgment in the case of Collingwood v. Pace, 1 Vent. 417, where he says, though an alien may take by purchase by his own contract that which he cannot retain against the king, yet the law will not enable him by act of his own to transfer or by hereditary descent to take by an act in law; for the law, quæ nihil frustra (which does nothing in vain) will not give an inheritance or freehold by act in law, for he cannot keep it. The general rule of the law therefore appears to be, that an alien by purchase, which is his own act, may take real property but cannot hold it; by descent, dower, or curtesy, or any other conceivable act of the law, he cannot even take any lands, tenements, or hereditaments whatsoever, much less hold them. The reason of the law's general exclusion of aliens, we have seen, ante, book 1, 371, 2.] By statutes 7 and 8 Vic. c. 66, alien friends are now permitted to take and hold lands, for residence or business, for twenty-one years; and a person born out of the ream, whose mother is a natural born subject, may take any estate, by devise, purchase, inheritance or suc cession. The law regarding the holding of property by aliens in the United States is not uniform in the different states, but the disability is removed, wholly or in part, in most of them. See 1 Washb. Real Prop. 51. a house for convenience of merchandise, in case he be an alien friend; (10) all other purchases (when found by an inquest of office) being immediately forfeited to the king. (n) (11) Papists, lastly, and persons professing the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III, c. 60, within the time limited for that purpose, are by statute 11 and 12 Wm. III, c. 4, disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void. (o) (12) II. We are next, but principally, to inquire, how a man may aliene or convey; which will lead us to consider the several modes of conveyance. In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate [*294] right or exclusive property should be originally acquired: *which we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose therefore of continuing the possession, the municipal law has established descents and alienations: the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred; or with regard to the subject-matter, as to what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed. These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is (according to the old common law), upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in its order. (10) [In former times no alien was permitted even to occupy a house for his habitation, and the alteration in that law was merely in favor of commerce and merchants. See 1 Rapin Hist. Eng. 361, n. 9; Bac. Ab. Aliens, Č.] (11) [But not before the inquest: 5 Co. 52, b; and if the purchase be made with the king's license, there can be no forfeiture. 14 Hen. IV, 20 Harg. Co. Litt. 2, b. n. 2.] (12) These disabilities are now entirely removed. See the statutes 10 Geo. IV, c. 7, and 2 and 3 Wm. IV, c. 115; 23 and 24 Vic. c. 134; 32 and 33 Vic. c. 109. 526 CHAPTER XX. OF ALIENATION BY DEED. IN treating of deeds I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided. I. First, then, a deed is a writing sealed and delivered by the parties. (a) It is sometimes called a charter, carta, from its materials; but most usually when applied to the transactions of private subjects, it is called a deed, in Latin factum, Kar' Esoxm, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal 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 so solemnly and deliberately avowed. (b) 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 should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such manner as to leave half the word on *one part and half on the other. [*296] Deeds thus made were denominated syngrapha by the canonists; (c) and with us chirographa, or hand-writings; (d) 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, put polled or shaved quite even; and therefore called a deed-poll, or a single deed. (e) (1) 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 names. (f) 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 contract; (g) nor upon fraud or collusion, either to deceive purchasers bona fide, (h) or just and lawful creditors; (i) any of which bad considerations will vacate the deed, and subject such persons as put the same in use, to forfeitures, and often to imprisonment. (2) A deed also, or other (a) Co. Litt. 171. (b) Plowd. 434. (c) Lyndew. l. 1. t. 10, c. 1. (1) Generally, at the present time, deeds for the conveyance of lands simply, though called indentures, are executed only by the grantors, and counterparts are not made and not needful. (2) But a deed in fraud of purchasers or creditors is not void as between the parties thereto, nor even as to third persons who are not concerned in the fraud. Only the parties who would be defrauded by it can allege its invalidity, and as to them it is avoided only so far as is needful for their protection. grant, made without any consideration, is, as it were, of no effect for it is construed to enure, or to be effectual, only to the use of the grantor himself. (k) (3) The consideration may be either *a good or a valuable one. A good [*297] 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 grant: (7) 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 favour of creditors, and bona fide purchasers. (4) Thirdly; the deed must be written, or I presume printed, (5) 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. (m) Wood or stone may be more durable, and linen less liable to erasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both these 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. (6) (k) Perk. § 533. (2) 3 Rep. 83. (m) Co. Litt. 229. F. N. B. 122. (3) [This sentence is not quite accurately worded: from the expression "deed or other grant," it might be inferred that a deed was a species of grant, whereas a grant is only one mode of conveyance by deed: next, it is not true that all deeds, or all grants made without consideration, are of no effect, for 1st, as to all deeds which operate at common law, or by transmutation of possession, that they will be valid at law to pass the estates they profess to pass, as against the grantor, though made without any consideration; and secondly as to deeds which operate under the statute of uses, they create a use which results to the grantor. To all appearance, indeed, no change is made in the grantor's title or rights by such a deed, yet that it is without effect in law cannot be said, because it works such an alteration in the grantor's estate from that which he had before, that any devise of the lands made before the date of the deed, will have no effect, unless the will be republished, that is, in fact, new made.] (4) This rule does not obtain in the United States. A deed purely voluntary is perfectly valid as against any subsequent purchaser from the gantor, who buys with notice, whether the notice be actual, or such as the law implies from the recording of the prior deed. 4 Kent, 463; Jackson v. Town, 4 Cow. 603; Salmon v. Bennett. 1 Conn. 525; Bennett v. Bedford Bank, 11 Mass. 421; Ricker v, Ham, 14 id. 137; Cathcart v. Robinson, 5 Pet. 280; Atkinson v. Phillips, 1 Md. Ch. Dec. 507; Beal v. Warren, 2 Gray, 447; Douglas v. Dunlap, 10 Ohio, 162. (5) [Com. Dig. Fait, A; 3 Chitty's Com. L. 6. There seems no doubt that it may be printed, and that if signatures be requisite the name of a party in print at the foot of the instrument would suffice. 2 M. and S. 288; 2 Bos. and P. 238.] (6) Nevertheless courts of equity have long been in the practice of enforcing the specific performance of parol contracts for the sale of lands, where there have been such acts of part performance as preclude the parties being placed in statu quo, and where, under the circumstances, it is equitable that such performance should be decreed. See Fry on Specific Performance; Story Eq. Juris. §§ 712–799. [It is settled, also, that trusts of lands arising by implication, or operation of law, are not within the statute of frauds; if they were, it has been said, that statute would tend to promote frauds rather than prevent them. Young v. Peachy, 2 Atk. 256, 257; Willis v. Willis, id. 71; Anonym. 2 Ventr. 361. The statute of frauds enacts, that no agreement respecting lands shall be of force, unless it be signed by the party to be charged; but the statute does not say that every agreement so 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.(n) (7) For it is not absolutely necessary in law to have all the formal parts that [*298] 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 (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. (q) 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; (8) 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] (0) Ibid. 6. (p) See Appendix, No. II, 1, page 7. (8) 2 Rep. 23. 8 id. 56. (q) Ibid. n) Co. Litt. 225. (r) Co. Litt. 21. 2 Roll. Rep. 19, 23. Cro. Jac. 476 signed shall be enforced. To adopt that construction would be, to enable any person who had procured another to sign an agreement to make it depend on his own will and pleasure whether it should be an agreement or not. Lord Redesdale, indeed, has intimated a doubt, whether in any case (not turning upon the fact of part performance) an agreement ought to be enforced, which has not been signed by, or on behalf of, both parties. Lawrenson v. Butler, 1 Sch. and Lef. 20; O'Rourke v. Percival, 2 Ball and Beat. 62. Lord Hardwicke and Sir Wm. Grant held a different doctrine. Backhouse v. Mohun, 3 Swanst. 435; Fowle v. Freeman, 9 Ves. 351; Western v. Russel, 3 Ves. and Bea. 192. Lord Eldon, without expressly deciding the point, seems to have leaned to Lord Redesdale's view of the question: Huddlestone v. 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 v. Mitchell, 2. Jac. and Walk. 428. By statute 8 and 9 Vic. c. 106, s. 4, a feoffment made after the first 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 first day of October, 1845, shall also be void at law, unless made by deed.] Permission from the owner of land to another, to erect and occupy a building upon his premises, though not given in writing, will make the building, when erected, the property of the builder. But this permission, properly called a license, is revocable at any time: but when revoked, the licensee is entitled to the building, and may remove it. Dubois v. Kelley, 10 Barb. 496. If, however, the owner of the land sell to a third person who has no knowledge of the license, such third person, it seems, takes the land with whatever is so attached as to pass as a part of the realty if belonging to the grantor; and in such a case, the licensee, if he had not previously removed the building, would lose it. Prince v. Case, 10 Conn. 383. That a license is always revocable, see Burton v. Schuff, 1 Allen, 13; Owen v. Field, 12 Allen, 257; Pittman v. Poor, 38 Me. 23; Rhodes v. Otis, 33 Ala. 600; Pratt v. Ogden, 34 N. Y. 22; Huff v. McAuley, 53 Penn. St. 206; Houston v. Laffer, 46 N. H. 505. A strong disposition has been manifested of late to hold that where expenditures have been made upon lands in reliance upon a license before revocation, the licensor shall be estopped from revoking afterwards unless the licensee can be placed in statu quo. Kerick v. Kern, 14 S. and R. 267; Dark v. Johnston, 55 Penn. St. 164; Snowden . Wilas, 19 Ind. 10; Lane v. Miller, 27 Ind. 534. (7) For rules for the construction of deeds, see post, 379. VOL. I.-67 529 |