affected with positive or even strong presumptive notice, in any other way, they cannot impeach the unrecorded deed; and the fact of such notice may be established by parol evidence. This doctrine can never produce hardship; for the burden of proving the actual notice will fall upon him who has neglected to record his deed; and if the subsequent purchaser knew of the former deed, it was folly to purchase, and he deserves to suffer. But if there be two deeds, and neither recorded within six months, the second deed, if executed before the first is recorded, will prevail in the absence of notice; and this doctrine has been extended to the case of a sale on execution, where the sale was confirmed before the prior deed was recorded, the six months having elapsed. The constructive notice resulting from recording, applies only to deeds, mortgages, and leases, duly executed; and if there be any defect in the execution, or if the instrument be not a deed, mortgage, or lease, the recording will have no effect, because the statute does not apply to such. But when the recorded instrument is within the statute, it is declared that a certified copy thereof shall be prima facie evidence of the existence of the instrument, and conclusive evidence of the existence of the record; and it has been held that even the immediate grantee may give such certified copy in evidence, without accounting for the original.

Exceptions. (a) The seven requisites of a deed now enumerated, namely, that it must be in writing, signed, sealed, attested, acknowledged, delivered, and recorded, are expressly extended by the statute to every "instrument of writing, by which any land, tenement, or hereditament, shall be conveyed, or otherwise affected or incumbered in law," with the exception of "leases of school or ministerial lands, for any term not exceeding ten years; and of any other lands for any term not exceeding three years." But there is some ambiguity in the phraseology of the statute, which it may be well to notice. The words are, "that nothing in this act contained shall be construed to affect the vitality of any excepted lease, or to require such lease to be attested, acknowledged, or recorded." Now the question is, whether it was intended to except such leases altogether from the operation of the act, as the first of the clause implies; or only as to the requisites of attestation, acknowledgment, and recording, as enumerated in the last part of the clause. the former be the intention, then these leases are left to the operation of the statute of frauds, which simply requires them to be in writing, without a seal; if the latter, then such leases are still required to be under seal. I should have little hesitation in saying that the former was the intention, and that these excepted leases would be good if made in writing without a seal; but I do not know that the question has been raised. It will be observed that these requisites are expressly limited to estates "in law," and hence it is that any written agreement to convey will be good in equity.

If

(a) See Bentley v. Deforest, 2 Ohio, 221; Barr v. Hatch, 3 id. 527; Paine v. French, 4 id. 318; Reed v. McGrew, 5 id. 385; Atkinson v. Bailey, 2 id. 212.

Moreover, where a legal conveyance was intended, but has been frustrated by the want of any one of these formalities, a court of equity will still consider it a valid contract to convey, as between the parties, and will enforce a specific performance; but a legal title cannot be conveyed, if any one of these formalities be wanting. There is a case, where the grantee in a deed by an indorsement on the back assigned "all his right and title in the deed" to another; and the court held that there never was a time in this State when such an assignment would be of any avail in law; but that equity might hold it to be a valid contract to convey. The words "conveyed, or otherwise affected or incumbered," are as comprehensive as could have been selected; and, but for the exception in regard to leases, would include the transfer of the smallest degree of interest. It has been held, however, that a certificate of entry or a mortgage may be assigned by mere delivery; thus taking the case both out of the statute of frauds and of deeds: and the reason is, I presume, because, by the assignment, the land is not affected by any new incumbrance; but the ownership remains. precisely as it was before the assignment.

The Consideration. (a) Of the consideration of contracts I shall speak more at large hereafter. The general principle of law is, that a consideration is essential to a contract, and where the contract is in writing, must be stated therein: but instruments under seal form an exception to the necessity of stating the consideration; because, in the eye of the law, the solemnity of affixing a seal is itself evidence of a consideration. As, therefore, a sealed instrument generally imports a consideration, none need be stated;

(a) See, in general, 4 Kent, Com. 461; Sheppard v. Little, 14 Johns. 210. Where a deed purports to be executed for a valuable consideration, and none such existed, it cannot be supported by natural affection. Burrage v. Beardsley, 16 Ohio, 438. But a different consideration from that expressed may be set up, if not inconsistent. Steele v. Worthington, 2 Ohio, 182; Vail v. McMillan, 17 Ohio State, 617; Hannan v. Oxley, 23 Wis. 519; Bryant v. Hunter, 6 Bush, 75. See on the proof of another or different consideration, McCrea v. Purmount, 16 Wendell, 460; Frink v. Green, 5 Barb. 455; 1 Parsons on Cont. 355. Where a husband has received property with his wife, this is a good consideration for a conveyance of a property to her use. Hill v. West, 8 Ohio, 222. Where the consideration was the compromising of a suit, or forbearance to prosecute, a court of equity will not set the conveyance aside, on showing that there was no real foundation for such suit or prosecution. Moore v. Adams, 8 Ohio, 372. A court of chancery will not set aside a deed executed upon the consideration of a bet on an election, but will leave the parties as it finds them. Thomas v. Cronise, 16 Ohio, 54. And see as to gaming consideration, Bond v. Swearingen, 1 Ohio, 395. Mere inadequacy of price, though it may prevent a decree for specific performance, will not be sufficient to set aside a conveyance, unless it be so gross as to suggest actual fraud. Smith v. Loring, 2 Ohio, 440; Steele v. Worthington, 2 id. 182; Knobb v. Lindsay, 5 id. 468; Watkins v. Collins, 11 id. 31; Galloway v. Barr, 12 id. 354; Osgood v. Franklin, 2 Johns. Ch. 1; Hyer v. Little, 20 N. J. Eq. 443; Holmes v. Holmes, 1 Abb. U. S. 525. The doctrine in the text, that the recital of a valuable consideration in a deed is essential to its validity in Ohio, is overruled in Thompson v. Thompson, 17 Ohio State, 650. The judges were unanimous that it is sufficient if the deed recites a good consideration, as natural affection for a child. Two out of the five judges declared their opinion that a deed was valid, although no consideration whatever was named in it. Where a deed purports to be made for a valuable consideration, it cannot, when impeached, be sustained by proof of a good consideration. Burrage v. Beardsley, 16 Ohio, 438; Miller v. Stokely, 5 Ohio State, 194.

and this was the doctrine in regard to the common-law conveyances; but conveyances under the statute of uses form an exception to this exception; that is, they fall under the general principle, which requires a consideration to be stated in the contract; and the reason is this: before the statute of uses, some consideration was held necessary, as we have seen, in order to raise a use; and as the statute merely annexed the legal estate to the use, without varying the evidence necessary to create the use, the courts of law still retained the doctrine established in equity; indeed, it may be added, that the very idea of a bargain and sale, which in theory is something different from a gift, supposes a valuable consideration; accordingly, it is a settled doctrine that a valuable consideration must be stated in the deed; but the amount is of no consequence; it being only necessary to comply with the technical requisition; and where one consideration is stated, so as to make the deed prima facie sufficient, a different one may be proved, so that it be not repugnant to the first. How, then, it may be asked, is a father to convey to his child, in consideration of natural affection, where no money passes? I answer, that he must resort to a fiction. There was a conveyance under the statute of uses, adapted to this very case; namely, by a covenant to stand seised to the use of the child; for which the consideration of blood was sufficient: but as this conveyance, not being mentioned in the ordinance of 1787, has never been adopted here; a conveyance to a child, in consideration of blood, being in the form of a bargain and sale to the child, must purport to be upon some valuable consideration for the sake of form; as one dollar, for example. This doctrine, respecting the consideration of a conveyance is sufficiently absurd, at best; but perhaps its absurdity will not be quite so striking if the reason be stated thus. There is a manifest difference between a bargain for the sale of land and a legal conveyance of that land; the former being a contract to be executed, and the latter the execution of that contract; now, at common law, a contract for the sale of lands would not have been binding without a consideration; but when a subsequent legal conveyance was made in execution of the prior contract of sale, this consideration was presumed, and was not, therefore, required to be stated. Under the statute of uses, however, the contract of sale and the conveyance became one act, and were effected by one instrument; and accordingly before this instrument could operate as a good conveyance, it must contain enough to make a good prima facie contract of sale; that is, a valuable consideration. The result, then, of the doctrine of a consideration is, that the deed must appear on its face to have been made upon a sufficient one: and then, as between parties, a court of law will not inquire into the fact. A deed without any consideration in fact, or with only a very inadequate one, would be perfectly binding in a court of law, except as to creditors and purchasers, under the statute of frauds; and even in equity, mere inadequacy of consideration

would not vitiate a deed, unless there had been gross deception and misrepresentation.

Foreign Deeds. (a) Our statute provides that all deeds out of this State, executed, and acknowledged or proved, pursuant to the law of the place, or pursuant to the law of this State, shall be as valid as if executed here. But the time for recording is the same as for deeds executed within the State. The words of the statute are, "in any other State, territory, or country," thus including all deeds wherever made.

§ 172. Parties to a Deed. (b) With respect to the grantees in a deed, there is little to be said. Every natural person is capable of receiving a conveyance, and there is no general law disabling corporations. As before observed, their ability to take and hold real estate depends entirely upon their charters. The only question as to grantees arises when there is no person in existence competent to take; and in such case, the grant is necessarily held to be void, except it be to charitable uses; in which case, the legislature may appoint a trustee of the legal title, and until such appointment the fee remains in the donor, subject to the trust. But with respect to the grantors, there are various restrictions and qualifications, both as to the ability to convey and the mode of conveying. I shall consider these in connection with the different classes of persons to whom they apply: namely, infants, idiots, and lunatics, married women, partners, corporations, attorneys in fact, sheriffs, commissioners of insolvents, auditors, and executors or administrators.

Infants and Guardians. (c) As a general principle, we have seen that an infant can make no binding obligation. The deed. of an infant, however, is not absolutely void, but only voidable. When he becomes of age, he may either confirm or annul it. If he confirm the deed, it becomes good ab initio; if not, it is void ab initio. It follows, then, that an infant can only make a valid conveyance, through his guardian, who is expressly empowered "on good cause shown, to sell all or any part of the property, whether real or personal, of his ward." This cause must be shown to the court of common pleas, without whose sanction a conveyance by guardian would be utterly void. And it will not be a good cause, unless, in pursuance of another provision of the statute, "the court shall be satisfied that the sale will be for the advantage of the ward, or is necessary for his maintenance." The statute makes no difference between testamentary and other

(a) Allen v. Parish, 3 Ohio, 107; Foster v. Dennison, 9 id. 121; M'Cullough v. Roderick, 2 id. 234; Rogers v. Allen, 3 id. 488; Sort well v. Jewett, 9 id. 180; Nowler v. Coit, 1 id. 519; Willis v. Cooper, 2 id. 124; Henry v. Doctor, 9 id. 49.

(b) 4 Kent, Com. 462; Sloane v. McConahy, 4 Ohio, 157; Bryant v. McCandless, 7 id. 135; Helfenstine v. Garrard, 7 id. 275; Sergeant v. Steinberger, 2 id. 307; Green v. Graham, 5 id. 264; Fleming v. Donohoe, 5 id. 255; Trustees of McIntire School v. Zanesville Co. 9 id. 203.

(c) Drake's Lessee v. Ramsay, 5 Ohio, 251; Massie's Lessee v. Long, 2 id. 293; Tucker v. Moreland, 10 Peters, 58; Cresinger v. Welch, 15 Ohio, 156.

guardians; but it is manifest, that if a will, appointing a guardian, expressly authorize him to sell the property of his ward, he may do it without leave of court; otherwise, not. In case the court authorizes a sale by the guardian, he is to be governed by the same regulations in every respect as an executor or administrator. What these regulations are, I shall state under that head. Idiots and Lunatics. (a) Idiots, as we have seen, are utterly incapable of making a valid conveyance; and lunatics can only convey during their lucid intervals. But their guardians have the same power to sell the real estate of their wards, as guardians of minors; and are under the same regulations. The statute, however, mentions the payment of the debts of an idiot or lunatic, as a sufficient cause for selling real estate, which is not the case with regard to minors; also, where an idiot or lunatic, when sane, had contracted to convey, the guardian is specially empowered to execute the conveyance; and all these provisions apply to deaf and dumb persons, if they are incapable of managing their estates. As to persons intoxicated, it has been held that if the grantor was so much intoxicated as not to know what he was doing, his deed will be set aside in chancery, although the grantee had no agency in procuring the intoxication.

Married Women. (b) On account of the legal presumption

(a) Lacy v. Garrard, 2 Ohio, 7; French v. French, 8 id. 214. As to the duty of the insane person or his guardian to restore the consideration when the deed is avoided, see Arnold v. Richmond Iron Works, 1 Gray, 434; Gibson v. Soper, 6 id. 279.

(b) There has been so much controversy as to how far contracts to convey may be enforced, or mistakes in conveyances corrected, as against married women, that we have recently had legislation tending, at least as to mistakes, to place them on the same footing as single persons. I shall in this note refer to a number of cases. Where a married woman agreed to surrender or levy a fine, and the husband died, she was compelled to perform. Baker v. Child, 2 Vernon, 61. Where a married woman with others had been ordered to execute a conveyance, the order was enforced. Jordan v. Jones, 16 Law Jour. R. Ch. 93. An imperfect conveyance, which, if valid, would have barred dower, was validated in equity, and had that effect. McCall v. McCall, 3 Day, 402. A mere signing and sealing with the husband will not be sufficient. There must be words in the body of the deed showing the intent to be bound. Constantine v. Van Winkle, 6 Hill, 177; Catlin v. Ware, 9 Mass. 218; Lufkin v. Curtis, 13 id. 223; Powell v. Monson M. Co., 3 Mason, 347; Cox v. Wells, 7 Blackford, 410. A wife may act as the attorney of her husband, but only to convey his interest. Fowler v. Shearer, 7 Mass. 14. Where the wife joined in all but the acknowledgment, which she refused, her interest was not affected. Martin v. Dwelly, 6 Wendell, 9. Where a wife only united in a deed because she was advised it was so defectively drawn as not to bar her dower, she knowing that the purchaser was not aware of this, it was held that fraud could not be imputed to her, being a married woman. McFarland v. Febiger, 7 Ohio, pt. 1, 194. This was going to the extreme verge, and there appeared to be a disposition to recede somewhat. Chestnut v. Shane, 16 Ohio, 599; Smith v. Handy, id. 191. But in Purcell v. Goshon, 17 Ohio, 105, where the fee was in the wife, and she joined, with the intention of conveying it for a cemetery, but by a blunder of the scrivener, only relinquished dower, it was held the mistake could not be corrected. By statute in Ohio, courts are now authorized to correct and relieve against any errors, mistakes, and defects occurring in a conveyance of land, by a husband and wife. 54 Ohio Laws, 199. Under this statute, the case of Purcell v. Goshorn came up again, and the deed was corrected. 11 Ohio State, 641. But this is limited by the courts strictly to cases of omissions, defects, or errors. Miller v. Hine, 13 Ohio State, 565; Carney v. Hopple's Heirs, 17 Ohio State. 39. This statute is only permissive, not mandatory. It still remains for the courts to determine