seisin to a use; the conveyance taking effect here without the intervention of the statute.

Lease and Release. (a) This mode of conveyance was invented to evade one of the provisions above referred to. We have seen that the necessity of enrolment was confined to the conveyance of freeholds. Consequently, a bargain and sale of an estate for years would be good without enrolment. Accordingly, a person wishing to make a secret conveyance, executed a lease for one year or more, which, without enrolment, vested in the lessee the use of the term for that time; to which use the statute at once annexed the possession. Now, by the common law, a person in possession as lessee could receive a release of the freehold and reversion without livery of seisin. Accordingly, a release was executed immediately after the lease, and thus the conveyance was completed without either livery or enrolment. This is said to be the most common conveyance in England; but so far as I know, it is not practised at all in Ohio, though, as we have seen, it is provided for in the ordinance of 1787. At any rate, the main reason for preferring it in England, does not exist here; for such a conveyance would require to be recorded as much as a deed of bargain and sale; and the latter is the more simple and economical, because it requires but one instrument, while the former requires two. This is probably the reason why a bargain and sale is here generally preferred.

It will thus be seen that our law of conveyancing has been greatly simplified. By a slight attention to the form of a deed of bargain and sale, every man might, for all common purposes, become his own conveyancer. It will also be seen, that while personalty may be transferred by mere delivery, without even a bill of sale, realty can only be transferred by means of a deed, which must be recorded in a public office, for notice to all the world. The form and requisites of a deed will be fully described in the course of this lecture. But in the mean time, there are several preliminary considerations which require a brief notice. With respect to personalty, I shall have very little to say here, on account of the simplicity of the mode of transfer; but when I come to speak of the contract of sale, my remarks will relate chiefly to the sale of personalty. It must not, however, be inferred that no right whatever to realty can be transferred without a regular and formal deed. This is the only method of conveying a complete legal title from one person to another among the living; but an equitable title, as before explained, may be transferred by any instrument of writing which complies with the statute of frauds; and this equitable title may be perfected into a legal title, by the decree of a court of chancery. Indeed, where the purchase-money is not to be paid down, instead of making a deed and taking back a mortgage, it is very common for the vendor to make only a title bond, which is a contract to convey when the stipulated payments shall have been made. Such a

(a) See 2 Black. Com. 339; 4 Kent, Com. 494.

contract makes the vendor a trustee for the vendee; and when the latter has complied with his part of the contract, if the vendor should refuse to make a deed, he may be compelled to do so by a decree in chancery.

§ 170. Preliminary Conditions of a Valid Conveyance. Under this head, I shall consider several matters affecting the validity of a conveyance, though it may have all the formalities required by law.

Fraudulent Conveyances. (a) I shall reserve what I have to say on the general subject of fraud, until I come to treat of contracts, when the statute of frauds will be examined at some length. It will be sufficient here to say, that this statute not only requires every conveyance of realty to be in writing, as before remarked, but also makes void every conveyance made with intent to defraud creditors or purchasers. Under the head of crimes, moreover, we shall see that severe penalties are annexed to the fraudulent transfer of property, whether real or personal. In fact, it is a general rule, that fraud vitiates every thing into which it enters. A fraudulent conveyance, therefore, will not be permitted to take effect; and in our subsequent remarks we shall presuppose that the parties to a conveyance are acting in good faith. If not, a court of law, when it is possible, and a court of equity always, will set aside the fraudulent conveyance.

Conveyance without Title. In this State, it is made a penitentiary offence, knowingly to convey land without having a title thereto, either legal or equitable, properly evidenced, with intent to defraud the purchaser. It will be observed that three things are necessary to constitute the criminality: First, the entire want of title secondly, a knowledge of that fact; and thirdly, the intent to defraud the purchaser. But if the first two exist, the third almost necessarily follows. If a man who knows that he has no shadow of title, undertakes to make a conveyance, he can have no other motive than to defraud the purchaser; but where the guilty knowledge does not exist, the criminality is taken away; and the only effect of a conveyance without title would be to lay the foundation of an action by the purchaser, either on the covenants in the deed, or to recover back the purchase-money.

Conveyance without Possession. (b) At common law, the conveyance of land, which at the time was in the adverse possession of another, was void; and this is the law in several of the States. Also by a statute of the 32d of Henry 8th, it was made unlawful for any person to make a conveyance of land, unless he, or those under whom he claimed, had been in actual or constructive possession within one year. In this State, we have no statutory

(a) See Hovenden on Frauds; Roberts on Frauds, and Roberts on Fraudulent Conveyances; Crumbaugh v. Kugler, 2 Ohio State, 373; 3 id. 544.

(b) 2 Black. Com. 290; 4 Kent, Com. 446, Key v. Vattier, 1 Ohio, 132; Backus v. McCoy, 3 id. 211; Cresinger v. Welch, 15 id. 156; Hull v. Ashby, 9 id. 96; Rawle on Covenants for Title, pp. 31-51; Cain v. Monroe, 23 Geo. 82; Harring v. Barwick, 24 id. 59.

provision on the subject; we have no law against champerty or maintenance, which prohibited a right of action from being assigned or purchased; and we have no express decision on the question. But the reason of the ancient common-law doctrine does not exist here. When livery of seisin was necessary, as it could only be made by a person in possession, a conveyance by a person not in possession must of course be void. But where the execution and delivery of a deed consummates a conveyance, without livery of seisin on the one hand, or entry on the other, there is no good reason why a conveyance of land to which the grantor has a good legal claim, should not be valid. On the whole, then, I think we are safe in concluding that a conveyance by a person who has a legal claim to land, held adversely by another, is valid. The ancient idea that litigation is thereby encouraged, is utterly without foundation. An action by the vendee would do no more harm than an action by the vendor.

Conveyance Pending Suit- Lis Pendens. (a) Wherever there is a statute existing against champerty, or where champerty is an offence at common law, a conveyance of land during the pendency of a suit concerning it, is an act of champerty. As we recognize no such misdemeanor, the only effect of the pendency of a suit is to make the conveyance void; and this effect always follows, though the purchaser knew nothing of the existence of the suit, and paid a full price for the land. The pendency of a suit, for reasons of public policy, is held to be constructive notice to all the world, not to purchase the subject in litigation; and as against the plaintiff, such purchase, however honestly made, is totally void; though as against the defendant, if he should finally prevail in the suit, the conveyance would be good, because he would not be allowed to disaffirm his own deed. This may be often a very

(a) Pending Suit Lis Pendens. Upon the general subject of lis pendens, see 4 Kent, Com. 449; 6 Dane's Abr. 741; Jackson v. Ketchum, 8 Johns. 479. The doctrine of lis pendens does not apply to the party in interest who is not a party to the suit. Irvin v. Smith, 17 Ohio, 226 Where a trustee before suit by him who has the equity, contracts to sell to one ignorant of the equity, and conveys to him after suit is brought, the doctrine does not apply. Trimble v. Boothby, 14 Ohio, 109; Gibler v. Trimble, id. 323. After a final decree there is no lis pendens. Turner v. Crebill, 1 Ohio, 372; Taylor v. Boyd, 3 id. 337. Nor does the doctrine apply where the plaintiff in ejectment conveys during suit. Dawson v. Porter, 2 Ohio, 304. Nor where the conveyance was made between final decree and reversal on bill of review. Ludlow v. Kidd, 3 Ohio, 541. A chancery suit is considered as pending from the time of publication of notice. Bennett v. Williams, 5 Ohio, 461. A bill of divorce praying for alimony, but not referring to any particular property, is not a lis pendens as to that property. Hamlin v. Bevans, 7 Ohio, pt. 1, 161. Where a bill was filed to subject land to a judgment, which was afterwards reversed, and remanded, and another judgment obtained, a conveyance between the two judgments was held to be pendente lite. Stoddard v. Myers, 8 Ohio, 203. A grant of letters of administration is not a lis pendens. Davis v. Livingston, 6 Ohio, 225. Where a creditor's bill does not allege that there are no leviable means, a conveyance by the judgment debtor is good. Clark v. Strong, 16 Ohio, 317. After final judgment against A., and proceedings to subject a debt due from W. to A. to the judgment, and notice to W. of such proceedings, the fact that such judgment is set aside, and a new judgment entered, will not authorize W. to pay A. Such a payment is made lite pendente. Gibbon v. Dougherty, 10 Ohio State, 365.

hard doctrine, but without it there would be no end to litigation; for before the plaintiff had got through his suit, the defendant would convey to some one else, and thus make another suit necessary, and so on without end.

Conveyance of more than one has. (a) At common law, as we have seen, the attempt to convey a greater estate than the grantor had, was not only void as to the grantee, but worked a forfeiture as to the grantor. For example, if a lessee for years undertook to convey a freehold, his term was thereby forfeited to the next owner in reversion or remainder. This depended upon technical reasons arising from the feudal relation of lord and vassal. And accordingly, after the statute of uses, when the courts adopted many of the equitable doctrines already established in chancery, this doctrine of forfeiture was given up, and it was held that when a person attempted to convey a greater estate than he possessed, the conveyance should be good for his whole interest. This is the doctrine here, and it seems to be the only rational doctrine that could be adopted. In like manner the conveyance of more land than one has, is good for whatever he has. Thus, if I undertake to convey, as sole owner of a tract of land, when in fact I only own an undivided share, this will be good for such undivided share. Indeed, our court has gone so far as to hold, that if I own an undivided fourth, for example, of a given tract, and I undertake to convey a specific portion thereof, by metes and bounds, the conveyance will be good for an undivided fourth of the portion attempted to be conveyed. (b) This is a novel doctrine, but it must stand as law till overruled.

§ 171. Formalities of a Deed. (c) I now come to the particular consideration of deeds. According to Blackstone, "a deed is a writing sealed and delivered by the parties." It is said to be called a deed, by way of eminence, "because it is the most solemn and authentic act that a man can possibly perform in relation to the disposal of his property." The above definition does not describe a deed of the present day, because by our law signing is essential. With us, any instrument is a deed, which is written, signed, sealed, and delivered. But, in common language, we confine the term deed to an instrument for the conveyance of real estate. I proceed, therefore, to describe the properties of such a deed. The formalities of a deed are provided for by statute. But from the ordinance of 1787 to the present time, there has been a great deal of fluctuating legislation on the subject.

(a) See 4 Kent, Com. 106; White v. Sayre, 2 Ohio, 113. (b) White v. Sayre, 2 Ohio, 103.

(c) See 4 Kent, Com. 450; 2 Black. Com. 295. A deed must conform to the law in force at the time of its execution, to be valid. Though the law be altered to require less formality before it is recorded, still it will be void. Boyle v. Chambers, 32 Missouri, 46; Switzer v. Knapps, 10 Iowa, 72. Since the internal revenue law, it must be stamped fifty cents for every five hundred dollars, or fractional part thereof, in the value of the property conveyed. The act of June 6, 1872, taking effect Oct. 1, 1872, statutes at large, session of 1871, 1872, p. 230, 256, § 36, repealed stamp duties on all instruments except bank checks, to take effect, Oct. 1, 1872.

A deed must be in writing: or it may be printed, all but the signature. The common custom is to have blank forms printed, to be filled up with writing; but the deed must be filled up before the execution. A writing not under seal may be made over a signature in blank; but for technical reasons, no sealed instrument can be thus made. (a)

It must be signed: or if the grantor cannot write, some one else must write his name, and he must ratify it. In early times, when seals had a distinctive character, signing was not necessary, but it became so under the English statute of frauds. Even without the statute, however, signing has always been necessary in this State. But I presume it would be sufficient for the grantor's name to appear in any part of the deed.

It must be sealed. (b) And it is provided by statute, that whenever a specific seal is not expressly required, "a seal either of wax, wafer, or of ink, commonly called a scrawl seal, shall be alike valid, and deemed sufficient." In consequence of this provision, it is very rare to see any other seal to a deed than a mere flourish of a pen opposite to the signature, with the word "seal," or the initials "L. S.," to show that it is meant for a seal; and this flourish is hardly ever made by the grantor himself, but usually by the scrivener, so that it becomes his only by adoption. More need not be said to demonstrate the utter insignificance of the formality of sealing; yet the conveyance would be good for nothing without it. The use of seals originated in the inability of men to write their names; and then they had a distinctive character, which identified the grantor as well as his signature. But ever since men have been able to write, and their signature has been required, and especially since a mere scrawl has been made sufficient, the requisition of a seal has been purely arbitrary. The theory is, that the affixing of a seal evinces solemnity and deliberation; but as seals are usually affixed, this is, of course, mere theory; and even were it fact, still the formalities which remain to be mentioned, are amply sufficient for every useful purpose. But such is the law, and I shall consider the policy of seals in another place.

It must be attested. (c) The words of the statute are:

Such

(a) Ayres v. Harness, 1 Ohio, 368; Day v. Brown, 2 id. 345. Blanks cannot be filled in a deed after execution. Drury v. Foster, 2 Wallace, 24; Burns v. Lynde, 6 Allen, 305. But in Iowa it has been held that an agent may be authorized to fill blanks as to third persons. Owen v. Perry, 25 Iowa, 412; Durie v. Himer, 29 Iowa, 297. As to the question of presumption as to the time of alterations appearing on the face of a deed, the decisions are conflicting. On the one hand, it is said that in the absence of any proof on the subject the alteration must be presumed to have been made before delivery. Little v. Herndon, 10 Wall. 26. On the other, that when the alteration is beneficial to the grantee he must explain and justify it. Robinson v. Myers, 67 Penn. St. 9. Where a deed has once been executed and delivered, parol evidence is not admissible to show that at the time the grantor reserved a right to cut timber on it. Jones v. Timmons, 21 Ohio St. 596.

(b) 2 Black. Com. 295; Erwin v. Shuey, 8 Ohio State, 509; Richardson v. Bates, 8 id. 257.

(c) Attestation. The ordinance required two witnesses. This was changed by the law of 1795, and until 1805 no witnesses were required. Since then there must be two witnesses, or no legal title passes, but only an equitable title. Moore v. Vance, 1