4. The nature of a deed indented, and a deed poll, with the differ ence that is between them. *P. 53. dium clause of this indenture made, &c.] contain- Lit. Sect 370. 38 H. 6. 24, 25. 9 All the parts of a deed indented, in judgment Plow. 134. of law, do make up but one deed, and every part is of as great force as all the parts together, and they are esteemed the mutual deeds of either party, and either party may be bound by either part of the same. And the words of the indenture are the words of either party. And albeit they be spoken as the words of the one party only, yet they are not his words alone, but may be applied to the other party if they do more properly belong to him: for every word that is doubtful shall be applied and expounded to be spoken by him to whom they will best agree, according to the intent of the parties; and they shall not be taken more strongly against one, or beneficially for the other, as the words of a deed poll shall. If therefore A. by indenture † 11 H. 7. 22. enfeoff B. upon condition, and then doth enter for per Brian. the condition broken; in this case it hath been held, that A. in his pleading may show forth the deed that he himself sealed, and that this is sufficient. And therefore also it is thought, that an indenture made in the first person is as good in law as an indenture made in the third person, when both parties have to this [deed] put their seals; Lit. Sect. 373for if in an indenture made in the third person, or in the first person, mention be made that the grantor only hath put his seal, and not the grantee, then is the indenture only the deed of the grantor; but when mention is made that the grantee also hath put his seal to the indenture, it shall be said to be the deed of them both (16), [and where in the clause of grant, the name of the grantor was omitted, the court supplied it by construction, 2 Prest. Convey. p. 380.] Finche's law, And although both parts of the indenture are 109. (15) See more fully as to the parts of a deed, Wood's Inst. 224. Noy's Max. 54. Com. 298. 1 Wood, 236. 2 Bl. (16) The indenture in the third person is the most sure, because it is most commonly used. Co. Lit. 229, b. And where a deed is made between two parties, and one of them doth seal and deliver his part, and the other doth not, yet the deed so sealed and delivered is good to charge the person sealing and delivering it. Cro. Eliz. 212. Plow. 484.421. but as one deed, yet the part of the grantor is as This [indented] deed is the strongest kind of deed Estoppel. (17) Sed quare as to the feoffor and lessor. In Co. Lit. 47, b. it is said, if the lease be made by deed indented, then are both parties concluded; but if it be by deed poll, the lessee shall not be estopped to say that the lessor had nothing at the time of the lease made, 5. When and be said to be good will any estoppel be created on an indenture, when Trin. 38 El. Co. B. per Curiam. Co. super Lit. 143. Note here first of all, that some deeds are void See grant, infra. where a deed shall from the beginning, and do never take effect; and sufficient, amongst these some are absolutely void against all where not, but persons, and some are void only to some purposes, void or voidable, and against some persons. Some also that are not and And when and ab initio. void from the beginning are, notwithstanding, void- whereby it seems to be implied that the lessor shall be estopped. In Bacon's Abr. tit. Leases, &c. (O.) p. 442, this point is discussed; and it is there said, "it should seem that a lease by deed poll binds the lessor himself as much as if it were by indenture, because it is executed on his part with the same solemnity, and therefore it should seem he is bound by such lease by way of estoppel." And then it proceeds to mention, that it is generally said that estoppels ought to be mutual. (18) And some that at the time of making are voidable, may be made good by some fter act, as if feoffment by husband and wife of wife's land rendering rent, the husband dies, ife accepts the rent, this shall bind her. 2 Brownl. 141. Cro. Eliz. 749. Co. super Lit. 225.35.36. Co. 2. 4. 5. 137. See infra. * either by an extra-judicial act, as rasure, or the *P. 54. A vacat of a deed. to make a deed To the making of every good deed containing Things requisite any agreement, these things are requisite. 1. Writ- good. ing: i. e. That it be written in parchment, [vellum] or paper; and that the agreement be legally and formally [or at least effectually] set down, and be sufficient in law for the composition and frame of the words. And this is called the legal part; the judgment whereof belongeth to the judges of the law [and not to a jury. Thus the facts of infancy, idiocy, &c. are to be tried by the jury. The conclusion of law respecting the ability of infants is to Perk. sect. 149. be resolved by the court.] 2. That there be a person able to contract, and to be contracted with, and a thing to be contracted for, and that all these be set down by sufficient names (19). 3. Reading: i. e. That if it be an illiterate man that is to seal the deed, and he desire to hear it read, that it be truly read, or the contents thereof truly declared to him. 4. Sealing: i. e. That the deed so written, be sealed by the party or some other by his appointment, for a further testimony of his consent thereunto. [It now rarely happens that the party seals the deed, the seal is generally affixed by the persons professionally employed, and the party recognises the seal to be his seal; indeed his delivery of the instrument would, without any other ceremony, be a recognition. It seems essential only that the instrument should be sealed, without regarding by whom the seal is affixed, so as it be affixed with the intention to give to the instrument the character and effect of a deed.] Perk. sect. 137. 5. Delivery: i. e. That the deed so written and See infra. &c. See infra. sealed be delivered by the party or some other (19) What is a sufficient name or description of the parties to a deed, see Bac. Abr. Grant, (C.) 1. In respect of the writing of it. other ceremonies or complements, are requisite, as 171. Every deed well made must be written; i. e. the Perk. Sect. 118. agreement must be all written before the sealing Co. super Lit. and delivery of it, [or as part of the same transaction, and as a cotemporaneous act, or at latest, while the deed is in fieri;] for if a man seal and deliver an empty piece of paper or parchment, albeit he do therewithal give commandment that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no good deed; Powell v. Duff, 3 Camp. 181. But see 2. Super Lit. Tesciera v. Evans, infra, p. 69, and 1 Anstr. 228.] 2. This writing must be in paper [vellum] or by post. and B.122. |