having the right may enter, &c. as if no recovery
had been suffered, and show the nullity of the re-
covery. And the writ of error, to avoid the reco-
very, must be brought within twenty years, by
10 & 11 W. 3, c. 14. The lord only, and not
the issue in tail, &c. may reverse a recovery suf-
fered in the Court of Common Pleas, of lands in
ancient demesne, so far as the error or disceit is in
suffering the recovery in that Court.]

And thus having done with the common assur-
ances that are made by matter of record, we
come to the common assurances that are made by
matter of fait, viz. by deeds and instruments of
writing in the country; wherein we must stay
a while upon the learning of deeds in general, and
from thence we shall descend to the particular
kinds of deeds (11).

*P. 50.

Terms of the

law. Co.

Lit. 35

super

Terms of the

Lit. 239. 14338 H. 6. 25.

CHAP. IV.

Of a Deed.

A DEED is a writing or instrument, [read a 1. Adeed. Quid.
contract,] written on paper, [vellum,] or parch-
ment, sealed and delivered, to prove and testify the
agreement of the parties, whose deed it is, to
the things contained in the deed. [A deed cannot
be written on wood, a tally, &c.; and an instru-
ment to which a seal has been affixed by mistake,
will not be deemed a deed, but a mere agreement;
Clements v. Gunhouse, 5 Esp. 83.]

All deeds are either indented, or poll. The deed 2. Quotuplex. 1. Co. super indented (which is that which is called an inden- Indenture. ture) is when the paper or parchment is cut and Deed poll. indented. [And to some, though a few instruments only, as a bargain and sale under the Statute of Inrolments, and under the Bankrupt Statutes, and to appointments in exercise of powers which require the ceremonies of a deed indented, an

Com. Dig. Recovery, (B. 6.) Bac. Abr. Fines and Recoveries, (D.) Pig. 156. Bro. Abr. tit. Faurifer de Recovery. Vin. Abr. Recovery, (A a.)

(11) A fine, recovery, and deed to lead the uses, are all together but one conveyance, though they have several operations. Pig. 26. [1 Prest. Convey. p. 11.] For the doctrine concerning declaring the uses of a recovery, see the books referred to at the end of the chapter on Fines, and also the case of Stapilton and Stapilton. 1 Atk. 2. [2 Prest. Convey. p. 4-71-78

indenture is essential; and to indent a deed after it
is executed, so as to alter the quality and effect of
the instrument, is a crime. Deeds of apprentice-
ship, except of parish apprentices, require an inden-
ture.] And it [a deed] is defined to be a writing, con-
taining a conveyance, bargain, contract, covenants
or matter of agreement, between two or more
[persons;] and is indented in the top or side
answerable [in ancient times, though not in modern
practice,] to another that likewise doth comprehend
the self-same matter. And this [instrument] is
so called because it is so indented; for albeit it be
called an indenture, and begin in these words, hæc
indentura, &c. yet if it be not actually indented, it
is no indenture. And on the other side, if it be
not so called, or these words be omitted, yet if it
be indented, it is an indenture. And this was
anciently called charta chyrographata vel commu-
nis, because each party had his part (12). [In its
origin, indenting was in all probability a mode of
identification, by a comparison of the parts at the
point of indenting, and thus a guard against
forgery or fraudulent substitution.] The deed poll
is that which is plain without any indenting, when
the parchment or paper is polled or cut even, [or
is not intentionally an indenture, though it may
not be polled or cut even.] And this was anciently
called charta de una parte (13). And this is
single and but one, which the feoffee, grantee or
lessee, for the most part hath. The deed indented
is also sometimes bipartite, i. e. of two parts, when
there are two parties and two parts of the deed.
[This circumstance is not essential to a deed being
of two parts; nor are these terms used in refer-
ence to the number of parties of the deed, but
merely to the number of parts in which the par-
ties to the deed are arranged.] And then com-
monly the feoffor, grantor or lessor, hath the
one part, and the feoffee, grantee or lessee, the
other part. And sometimes it is tripartite, i. e.
when there are three parties and three parts, and
then commonly each party hath a part of the

(12) As to the antient use of deeds indented, see Mad. Form. Angl. Dissert. p. 28, and further 2 Bl. Com. 205. Com. Dig. Fait, (C. 1.)

(13) See distinction between carta and factum, Co. Lit. 9. A charter doth touch the inheritance, but a deed doth not, [query] unless, it hath some other addition. See further note 1, to Co. Lit. 96, 13th edit. and Co. Lit. 171, b.

Lit. Sect. 371372.

+ Bro. Oblig. 51. Co. super Lit. 35. 36. West. Symb.

lib. 1. part 1. Sect. 46.

*P. 51.

indenture. And sometimes it is quadripartite, &c.
And, according to the parts, they do seal inter-
changeably one to another; [nor is this a neces-
sary circumstance.] And amongst these parts,
the part sealed by the feoffor, grantor or lessor,
is said to be the principal or original, [as against
him, and as far as is material to the operation of
the grant, &c.] and the rest are called but acces-
sary, counterparts or copies; and yet all of them Counterparts,
in law do make up but one entire deed. [And
as to covenants by the other parties, these are ori-
ginals; and the prevailing practice, when there are
several parts of a deed, is to have each part executed
by all the parties, so that each part may be equally
an original.] These deeds [poll] also are sometimes
in the first person, as noveritis, &c. me. A. B. &c.
dedi & concessi, &c. [read dedisse, &c.] And albeit
it be an indenture so made, yet it is good enough.
And sometimes they are made in the third person,
as hæc indentura testatur, &c. quod idem A. B.
&c. dedit & concessit, &c. † The deed poll is usu-
ally made in the first person; but if it be made in
the third person, it is good enough. There are
divers other distinctions of deeds; for some are
public that do concern countries, some of the
prince. And some are private between particular
persons, and those private persons or [read being]
subjects. And these [deeds of subjects] only are
intended here. And of these some are absolute,
and some conditional; some are inrolled, and some
not inrolled; some concern the realty, and some
the personalty; and some are mixt, [concerning
realty and personalty; and some are merely con-
tracts or covenants for acts to be done or omitted,
or that acts have or have not been done or omit-
ted.] And some of these also contain matter of
grant, or gift; amongst which, feoffments, gifts,
bargains and sales, grants and leases, are the chief.
And some of them contain matter of discharge,
as [surrenders,] releases, acquittances and defea-
sances, and such like. And some of them contain
other matter, as confirmations, [covenants,] and
such like. Or, as others distinguish, some of
them are constitutive and making, and some are
remissory or liberatory. And the first sort are,
some of them creating, i. e. such whereby any
estate property or obligation, not having es-
sence [read existence,] before, is newly raised and

Note.

*P. 52.

created, as the first grant of a rent, common,
way, &c. estate tail, for life, years, &c. And
some of them are conveying, i. e. such by which
estates, properties and the like, being already
created, are conveyed [or restored] to others, as
feoffments, bargains and sales, grants over or as-
signments, surrenders, [releases,] and the like. [A
surrender is a species of release.] Those that are
of the last sort, are such as do describe and
testify some precedent contract for a duty or
fact, to be paid, performed or done, released
or discharged; of which sort are all acquittances,
releases, and other such like matters of dis-
charge.

1 part.

But here, by the way, two things are to be ob- See West. Sym. served: 1. That there may be, and are, divers other kinds of deeds besides those which are named before; for every agreement put in writing, sealed and delivered, becometh a deed. And attornments, exchanges, surrenders, partitions, authorities, commissions, licences, revocations, and the like, are usually made, given, done and granted by deed; [or rather by an instrument having the forms and ceremonies of a deed. These instruments are not deeds, but instruments sealed and delivered, or quasi deeds.] And there are divers other instruments concerning merchants and other affairs; if therefore any of these be done by deed, such a deed is for the most part subject to the rules of deeds herein laid down. 2. Albeit that feoffments, gifts, bargains, [not being bargains and sales to be inrolled,] leases, attornments, exchanges, surrenders, and such like things, may in divers cases be as well made and done without as with a deed; yet if a man will make his claim to any thing given or granted by such feoffment, gift, &c. by deed, the deed must be such a deed as is a good and perfect deed by the rules hereinafter laid down ; [namely, if the instrument be pleaded as a deed, and on production it does not appear to be a deed, the party who pleads the instrument will fail, though the instrument would have been effectual for the object, if it had been duly pleaded.]

* In every deed or writing there are two Co. super Lit. 3. The parts of a parts considerable [to be considered;] 1. the ex- 6.229. 2. 3.

deed.

ternal or material part, i. e. the parchment or

paper, wax and writing, [sealing and delivery ;]

2. the internal or intellectual part, i. e. the [con-
tract, viz.] sense, force, virtue and operation of
the words and matter therein contained. And in
the writing, context or matter contained in divers
deeds, as feoffments, grants, leases and the like,
there are certain formal or orderly parts, [and some.
of them are, and some of which are not, essential
parts,] which make up
the whole, of which the law
doth take special notice; as, 1. The premises, the
office whereof is to rightly set down the name of
the feoffor, grantor, lessor, &c. feoffee, grantee,
lessee, &c. [and their additions or descriptions, so
as to identify them,] and to comprehend the cer-
tainty of the thing granted or leased. And herein
in some deeds there is also a recital of some
things, and in some deeds an exception of some
part of the thing granted before by the deed.
2. The habendum, [which is a formal, and not an
essential part of a deed; 2 Prest. Convey. p. 439.]
the office whereof is to name again the feoffee,
lessee, &c. [though this is form, and not substance,
if the grantee be named as grantee in the prior
part of the deed;] and to set forth what estate he
shall have, and for what time he shall hold the
thing given or granted; [2 Prest. Convey. p. 467.]
3. There is set down and expressed [when neces-
sary] upon what terms and conditions the estate
of [read in] the thing granted, shall be held. And
therefore, there is sometimes contained therein a
tenendum, to set forth by what tenure the grantee
shall hold the land granted (14). [Before the sta-
tute of Quia emptores this clause was more generally
used to express whether the lands were to be held
of the grantor or of the superior lord. In reference
to this object the clause became useless when that
statute took away the power of subinfeudation.]
4. A reservation or reddendum, to set forth by
what rent he shall hold the land. 5. A condition.
6. A warranty. 7. Covenants. 8. The conclu-
sion after this manner, In cujus rei testimonium,
&c. wherein is set forth the date of the deed, [in
deeds poll the date is set forth in this clause, but

in indentures it is generally set forth in the exor

(14) The tenendum is now of very little use, being only inserted by custom: it was formerly used to signify the tenure by which the estate granted was to be holden, viz. tenendum

per servitium militare, in burgagio, in libero socagio, &c. ; but all these being reduced by the statute 12 Car. 2, c. 24, into free and common socage, the tenure is now never specified.

K