*Co. 2. 3.

'Perk. Sect.

123.

4 Perk. Sect.

155

325.

d

с

parchment; for if an agreement be written on a piece of wood, linen, the bark of a tree, a stone, or the like, and this be sealed and delivered; this is no good deed (20). But it may be written in any language, or in any hand. And therefore it *P. 55. is held that a deed written in French or Latin, and in text, court, or roman hand, is as good as a deed written in English and in a secretary hand. And albeit the writing be beside the lines, or the lines be written crooked, yet this [irregularity] will not hurt the deed. And if there be any alteration, rasure, or inCo. Super. Lit. terlining made in any part of the deed before the delivery of it; this [act] will not hurt the deed. But in such cases it is policy to make a memorandum of it upon the back of the deed, and to give the witnesses notice of it; for otherwise if it be in any place material, as in the name of the grantor, grantee, in the limiting of the estate, or the like, and especially if it be in a deed poll [or an indenture, and there be not several parts, so that one part may authenticate and support the other part,] the deed is greatly suspicious. [A deed of thirty years standing, produced from the proper custody, with an accompanying possession according to the deed, proves its own execution; or, more properly speaking, proof of possession, according to the deed, proves the execution of thedeed itself: but if there be any blemish in the deed, by rasure or interlineation, proof of the execution of the deed, or of the deed and hand-writing of the witness, must, 3] Co. super Lit. if circumstances will admit, be given.] 3. The matter written, must be legal [viz. sufficient in law] and orderly for manner and matter; i. e. There must be words sufficient to set forth the agreement and bind the parties; for a deed may be void and lose its virtue in all, or part, for repugnancy, incertainty, and divers other matters: (whereof, see in Fitz. Fait, and exposition of deeds, infra.) But it is not material whether the deed be in the first or in the third person, so as the words be aptly applied. For if a deed poll be in the third person, viz. quod presens scriptum testatur, &c. quod idem A. dedit & tradidit,

225.

feoffments, 5.

Dyer 6.

(20) Wood or stone may be more durable, and linen less liable to erasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities, for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. A deed must have the regular stamps imposed on it by the several statutes for that purpose, otherwise it cannot be given in evidence. 2 Bl.Com. 297.

Numb. 3.

Co. 2. 5.

Dyer 19.

Kelw. 70.

&c. Or an obligation be in the third person, viz.
Md. quod I. S. debet I. D. 201. &c. these are good
deeds notwithstanding the statute of 38 E. 3. c. 4.
which is meant only of obligations made beyond
the seas.
So if the words of a deed indented, run
in the first person, it is as good as if it were in the
third person. Neither is it necessary that the Co. 5. 121. 10.
English or Latin, whereby it is made, be true and 133. See Oblig.
congruous; for false and incongruous Latin or
English, seldom or never hurteth a deed; for the
rules are, falsa orthographia non vitiat chartam.
Falsa grammatica non vitiat concessionem. Neither Co. super Lit. 6.
is it necessary that every deed have all the parts of
a deed before set down, as premises, habendum, &c.
for a deed may be good without habendum, war-
ranty, reservation, or covenant; [for these are
formal and orderly parts only, and not essential
parts of the deed; 2 Prest. Convey. p. 439; and
sometimes the habendum may be rejected as repug-
nant to the premises; Jermyn v. Orchard, Show.
Par. Ca. 199.] And a deed is good, albeit these
words in the close thereof, in cujus rei testimonium
sigillum meum apposui, be omitted; and albeit there
be no mention made in the same [deed] that the
deed was sealed and delivered; so as in truth it be
duly sealed and delivered, and the sealing and deli-
very can be proved. Also a deed is good, albeit
it mention no time or place of date or making, or
have a false date, i. e. be dated at one time and
delivered at another; and albeit it have an impos-
sible date, as the 30th of February, or the like, for
anciently until the time of E. 2. and E. 3. the
deeds had no date; because the law was then held
to be, that if a deed were dated before the time of
memory, it was not pleadable, except it were of
record, but it might have been given in evidence.
But he that doth plead such a deed without any
date, or with such an impossible date, must set
forth the time when it was delivered (21), [and
support the averment by proof; so a deed may be
pleaded and proved as bearing date, &c. but first
delivered, &c. and thus show that the deed sup-
ports the title. In deeds, made in exercise of
powers, stipulating for attestation, there must be
an attestation of the facts to be attested.]

Co. 2.5.5.117.
Perk. Sect. 120.
Co. super Lit. 6.

Dyer 28.

(21) See accordingly Dodson v. Kayes, Yelv. 193. If two deeds bear date the same day, and are manifestly but one agreement, that shall be presumed to be executed first, which shall support the clear intent of the parties. Taylor v. Horde, 1 Burr. 106. [2 Prest. Convey. 24. 237-]

Co. 11. 73Plow. 555. Perk. Sect. 1. 119.

the persons par

*The second thing required in every well made *P. 56. deed is, that the person making it be able to give, 2. In respect of grant, make, or do the thing contained in it; that ties thereunto & the person to whom it is made be capable of the matter therein. Feoffment infra. thing to be given, granted, made or done thereby;

SeeGrant, infra.

Numb. 4.

Numb. 12.

for if it be made by, or to any such persons as are disabled, as infants, aliens, women covert (22), persons attainted of treason or felony, idiots, and such like, it will be void in all or part, [or may become void by disagreement, &c. at a period when there is a person competent to disagree, &c. Primá facie, grants to aliens, infants, &c. are good; but the crown may claim the benefit of the grant to the alien, and grants by aliens are good as against themselves, though voidable by the crown. A grant to an attainted person enures to the benefit of the crown. A grant by a person between conviction and attainder is good, subject to any forfeiture which may have been incurred. A grant after attainder is good, except as against the title by forfeiture, as distinguished from a title by escheat; sed query. In Zouch v. Parsons, 3 Burr. 1794, it was decided that a lease and release by an infant trustee was voidable only, and not void. That decision has not been followed, nor can it be safely relied on] (23). But any person natural, male or female, or politic, as sole corporations, or corporations aggregate of many, ecclesiastical or temporal, not disabled by law, may give or take by deed. Also there must be some matter, whereabout the contract may be conversant. It is therefore said, that in every grant there must be grantor, grantee, and a thing to be granted, and in every obligation an obligor, obligee, and thing to which the obligor is Co. 2.9. 11. 27. bound; and so of feoffments and other deeds. The third thing required in every well made deed is, that if the party that is to seal it be a blind or an illiterate man, and desire to hear it read, that it be so [viz. read;] for if such a man be to

14 H. 8. 26.

3. In respect of the reading of it.

(22) See Goodright, on dem. of Eliz. Carter, v. Straphan and others, Cowp. 201, and Dougl. 54. Re-delivery by feme (of a deed delivered by baron and her during coverture) after death of baron, is good without re-execution or re-attestation, and circumstances alone may be equivalent to such a re-delivery.

(23) Or voidable; for deeds executed by infants are sometimes void, and sometimes voidable. See Perk. § 12. Co. Lit. 2, b. 380, b. Ante, p. 7, note 1. Bac. Abr. Grant, (A. 3.) Com. Dig. Enfant, (C. 2, 3.) But deeds by femes covert are said to be always void. 3 Burr. 1805. Co. Lit. 42, b. 13th edit. note 4. See further as to deeds by or to the several persons mentioned in the text. 2 Bl. Com. 290. Vin. Abr. Faits, (F. a.) Grants, (H. a. 12.) 2 Atk. 398.

4. In respect of the sealing of it.

seal a deed, and he desire to hear it, or to hear the
contents of it read or declared to him first, and it
be not done, and he afterwards seal and deliver it,
this is no good deed. [This conclusion is doubtful,
since the grantor was not deceived.] So, if upon
or without any such request made by him that is to
seal and deliver it [the deed,] the party himself to
whom it is made, or a stranger, shall read the deed,
or declare the contents thereof, falsely and otherwise
than in truth it is, the deed will be void, at least
for so much as is so misread or misdeclared. But
if the party himself that is to seal and deliver it,
before the sealing and delivery thereof, cause
another that is a stranger covinously to read it, or
to declare the contents thereof falsely to him, and
otherwise than it is, of purpose to make the deed
void, this will not hurt the deed; [for the party
shall not take advantage of any act of which he is
the author. In short, this is a fraud committed
by himself on himself. The maxims are, 1st. Qui
vult decipi decipiatur; 2d. No man can take advan-
tage of his own wrong; 3d. The fraud of the
grantor, shall not be available to the prejudice of
the grantee.] So if the party that is to seal the
deed, can read himself and doth not, or being an
illiterate or a blind man, doth not require to hear
the deed read, or the contents thereof declared, in
these cases albeit the deed be contrary to his mind,
yet it is good and unavoidable [at law. On this
subject, read Manser's case, 2 Co. Rep. 3.
equity may correct mistakes, frauds, &c.]

But

law. Fait. Co.

Perk. Sect. 129.

The fourth thing required in every well made Terms of the deed [read in every deed] is, that it be sealed: super Lit. 225[for a seal is essential to a deed, while signing is Co. 2.4. 5. not; since no writing without a seal can be a deed; even under the Statute of Frauds and Perjuries, signing is not necessary to the validity of a deed. Signing is often requisite to the valid exercise of powers, &c.; and if the deed exercising the power be required to be attested, the facts of signing, &c. must be attested. 3 Prest. Abst. p. 61.] But this sealing of deeds in times past was not used; for the Saxons used only to subscribe their names, and to add the sign of the cross, and to set down a great number of witnesses (24). And afterwards the Normans brought

(24) And the statute 29 Car. 2. c. 3. revives the Saxon custom of signing, and expressly directs it in all grants of lands; and many other species of deeds; in which therefore signing

131. 134.

in with them the sealing of deeds, but by degrees; for first the kings and a few of the nobility used it, and to seal with their seals of arms; afterwards all the nobility used it, and then the gentlemen ; and about the time of E. 3, all men began to use sealing of deeds, which hath been continued ever since; so that now it is of necessity, insomuch that if a deed be never so well written before, and Perk. Sect. 130. delivered afterwards, yet if it be not sealed be- *P. 57. tween the writing and delivery, it is not a good deed. [This proposition is too general: it would at this day be sufficient that there was a seal to the deed at the time of its actual or constructive delivery; and that the party, in terms or by conduct, recognized this seal as his seal. That the seal was affixed prior to engrossment would not vitiate the deed.] But if a stranger seal it by the allowance or commandment precedent, or agreement subsequent, of him that is to seal it, before the delivery of it, it is as well as if the party to the deed did seal it himself. And therefore if another man seal a deed of mine, and I take it up after it is sealed, and [do] deliver it as my deed; this is said to be a good agreement to, and allowance of Perk. Sect. 130. the sealing, and so a good deed. And if the party seal the deed with any seal besides his own, or with a stick, or any such like thing which doth make a print, it is good; [for sealing is cera sigillo impressa.] And although it be a corporation that doth make the deed, yet they may seal with any other seal besides their common seal, and the deed never the worse. And if there be twenty Perk. Sect. 134 to seal one deed, and they seal all upon one piece of wax and with one seal, yet if they make distinct and several prints; this is a very sufficient sealing, and the deed is good enough (25). [In general there must be a distinct seal for each distinct person, who is to grant, &c.; yet a deed with one seal, executed by one of two partners in the presence of the other with his consent, and as their act, was allowed to be the deed of both partners. Ball v. Dunsterville, 4 T. Rep. 313. 3 Prest. Abstr.

131. 132.

seems now to be as necessary as sealing, though it has been held sometimes that the one includes the other. 2 Bl. Com. 306. [This seems to be a mistake; for it is apprehended the statute is applicable only to mere agreements, not to deeds: this will appear very clear from the words of the statute.]

(25) See further as to the sealing of deeds, Com. Dig. Fait (A.2). Roll. Abr. Fait (H).