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-
ing the day, month and year, and the style of the
king or year of our Lord, [unless accomplished, as
is usual in indentures, in the title of the deed.]
And all these are sometimes contained under the
premises and the habendum (15).

Lit. Sect 370.
H. 6. 35
35 H. 6. 34.

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
the principal, and the other is not but a counter-
part. And therefore if the lessor only seal, and
not the lessee, yet it is as good [to bind him] as if
both had sealed, [and frequently a grantee may be
bound by acceptance, as an estoppel, 1 Inst.
143 a ;] and if there be any difference between the
parts, the counter-part shall be made to agree with
the principal, and it [the error] shall be deemed the
misprision of the clerk.

This [indented] deed is the strongest kind of deed Estoppel.
of the two; for this worketh an estoppel, i. e. doth
bar and conclude either party, [his heirs, &c. and all
persons claiming under or through him, except
heirs in tail; and even the issue in tail, when there
is a fine with proclamations,] to say or except any
thing against any thing contained in it. For if a
lease be by indenture, both parties are concluded
to say, that the lessor had nothing in the land at
the time of the lease made; so that if the lessor
happen to have the land after by purchase or de-
scent, [or the lands vest in him under a contingent
or executory interest,] the lessee may [during the
term] enter upon him by way of conclusion, [and
covenant will lie against a lessee accepting the
lease; and a rent reserved on a deed poll granting
a fee, &c. or an estate for life or years, must be
paid. The acceptance binds the grantee, lessee, &c.
Sullivan's Lect. ch. 10, p. 100; and Appendix, 1
Inst. 143a,] and the lessee by estoppel shall be forced
to pay his rent; [but if the indenture operate to
any extent to pass an interest, it shall not operate
by estoppel, 1 Inst. 47; 2 Prest. Abst. 216. A fine
sur concessit for years will also create an estoppel,
Weale and Lower, Pollerf. 55.] But it is other-
wise of a deed poll; for this is commonly but of
one part, which is sealed by the feoffor, lessor, &c.
only. And this shall be expounded to be the sole
deed of the feoffor, lessor, &c. and the words therein
contained shall be said to be his words, and shall
bind him only, and be expounded altogether in ad-
vantage of the feoffee, lessee, &c. and against the
feoffor, lessor, &c. and this [deed poll] doth not
work any estoppel against either party (17), [nor

(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
the deed operates to any extent to pass an estate
in point of interest. There is a difference between
an estoppel in evidence, and an estoppel in point
of estate. A deed poll cannot create an estoppel
in point of estate; but if a deed poll of A. recite that
A. by bond did, &c. A. cannot say there is not any
such bond.] But if a deed be indented or poll, and
there be therein reciprocal covenants between them
from one to another, albeit there be but one part,
yet if each of them seal it and deliver it the one to
the other, this is good for [read binding on] both
parties; and each of them, that can get the deed into
his hand to show or plead, [or can by modern
practice and in particular cases, as in the instance
of lost deeds, or deeds in the hands of the opposite
party, plead the deed without profert,] may take
advantage thereof against the other. And in this
case the deed is usually kept by one indifferent
between them both.

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-
able, and that sometimes by the party himself that
made them, or any others, and sometimes by others,
and not by himself. And some deeds are good in
their first creation and well made at the first, but
become void by some matter ex post facto (18).
[But though there be two persons of the same
name, the deed will not be void on that account
for uncertainty; but under the rule, that certum
est quod certum reddi potest, the certainty of the
person may be averred and proved. But if the
evidence fail in ascertaining the grantee, then the
deed is void for uncertainty. Thomas v. Tho-
mas, 6 Term. Rep. 676.] And this may be

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
like, or by a judicial act, i. e. when by the sen-
tence of a court a deed is damned and made void,
which is called a vacat of the deed.

*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
by his appointment as his deed. And these last
things being matters of fact are to be tried by
jurors. 6. That the ground, foundation, end, and
purpose of making the deed be good and not
against the law. Ötherwise in most of these cases
the deed is void ab initio. Also in some cases to
perfect the contract, and make the conveyance of
the thing, intended to be passed thereby, good; some

(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
inrolment, livery of seisin, attornment; otherwise
the deed, in part at least, becometh fruitless and vain.
For a deed may be void, either for that the writing
is not in parchment [vellum] or paper; or being so, is
not legally and formally drawn; or being so, there
doth want a person able to give, or make, or capa-
ble to have, or take, or a thing to be contracted
for; or if so, [viz. perfect in these particulars,] for
that it is not duly sealed and delivered; or if so,
for that it is not truly read, [or rather is read
falsely to a blind or illiterate person] at the time of
the sealing and delivery; or if so, for that it is
made void by some special law, as being made
upon an usurious contract, by duress, or the like,
[or against the policy of the law. As a grant to
take effect in case the grantee should commit mur-
der, or as an estate of freehold to commence in
futuro, in a grant at the common law; 1 Estates,
p. 216.] Or it may at least in part lose its force
afterwards by neglect of inrolment, livery of seisin,
or attornment, in cases where these things are re-
quisite, [or it may till duly stamped, and certain
penalties are paid, be inadmissible in evidence. In
bargains and sales, the freehold passes before inrol-
ment; subject, however, to be considered, as if it
had never passed, unless there be inrolment in
due time. The like observation applied to grants
when attornment was essential to the validity of
the grant. But no estate passes by a charter of
feoffment, as such, until there be livery of seisin
for livery of seisin is the essential act. Also, in
deeds of bargain and sale under powers, authorities,
&c. to which an inrolment may be requisite, no
estate will pass till inrolment; Hawkins v. Kemp,
3 East, 410.]

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.