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OF

THE LAW OF

REAL AND PERSONAL PROPERTY

PRIMARILY CONNECTED WITH CONVEYANCING:

DESIGNED AS

A SECOND BOOK FOR STUDENTS,

AND AS

A DIGEST OF THE MOST USEFUL LEARNING FOR PRACTITIONERS.

BY JOSIAH W. SMITH, B.C.L., Q.C.,

RETIRED JUDGE OF COUNTY COURTS, AND A BENCHER OF LINCOLN'S INN; (EDITOR OF FEARNE'S "CONTINGENT REMAINDERS"; AND AUTHOR OF A TREATISE ON EXECUTORY INTERESTS ANNEXED THERETO; EDITOR OF MITFORD'S "CHANCERY PLEADINGS"; AND ONE OF THE CONSOLIDATORS OF THE CHANCERY ORDERS.)

Sixth Edition.

(Enlarged, and embodying the alterations made by the recent Statutes.

BY

THE AUTHOR

AND

J. TRUSTRAM, LL.M.,

of Lincoln's Inn, Esq., Barrister at Law; formerly MacMahon Law Student of St. John's College, Cambridge.

IN TWO VOLUMES.

VOL. II.

LONDON:

STEVENS & SONS, 119, CHANCERY LANE,

Jaw Publishers and Booksellers.

1884.

[blocks in formation]

721

OF DEEDS GENERALLY AND THEIR PARTS.

SECTION I.

Of Deeds generally.

CH. 1, s. 1.

A DEED is a written or printed document on parchment, P. III.T. 12,
vellum, or paper, sealed and delivered, to prove and testify Definition
the agreement of the parties whose deed it is, to the things of a deed.
therein contained (a). A deed must be written or printed
on parchment, vellum, or paper, because there is nothing -
else which is at once so durable and so little liable to
alteration (b). 1711.

Deeds, when considered with reference to the parties to Deeds are
them, are of two kinds: Indentures or deeds inter partes,
and Deeds Poll. 1712.

dentures or

deeds poll.

CH. 1, s. 1.

way

Modern
of indent-

Pr. III.T. 12, through which the parchment was cut in acute angles, instar dentium (from which they acquired the name of indentures or deeds indented), in such a manner as to leave half the words or letters on one part and half on the other (a). Afterwards, indenting in an undulating line came into use, without cutting through any words or letters at all (b). And the practice has long been to cut in this manner the first skin of parchment on which a deed containing mutual stipulations is written (c). 1713.

ing.

Reason for indenting.

Indenting

not now necessary.

Originals

and counter

parts.

Definition of a deed poll.

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 (d). 1714.

As practised in modern times, however, it can be of no utility. And hence it was enacted by the stat. 7 & 8 Vict. c. 76, s. 11, that it should "not be necessary in any case to have a deed indented." And though that Act is repealed by the stat. 8 & 9 Vict. c. 106, yet by s. 5 of the latter Act, "a deed executed after the 1st of October, 1845, purporting to be an indenture, shall have the effect of an indenture, although not actually indented." 1715.

In the case of an indenture, there ought regularly to be as many copies of it as there are parties; and when the several parts are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts; but all of them, in law, make but one entire deed. It is usual, however, for all parties to execute every part, which renders them all originals (e). 1716.

A deed poll (which is so called because not indented, but cut in a straight line) is not strictly speaking an

(a) 4 Cruise T. 32, c. 1, § 20.
(b) 2 Bl. Com. 296. See also Co.
Litt. 229 a, n. (1).

(e) 4 Cruise T. 32, c. 1, § 22;

Co. Litt. 229 a, b, 1.

(d) 1 Pres. Shep. T. 59.

(e) 2 Bl. Com. 296; 4 Cruise T. 32, c. 1, § 23; 1 Pres. Shep. T. 51.

Pr. III.T. 12,

CH. 1, s. 1.

From what

time a deed

agreement between two persons, but a declaration of some person or persons respecting an agreement made by him. or them with some other person or persons (a). 1717. A deed takes effect from its execution, and not from the date of it (b). And in the absence of special circum- takes effect. stances creating an equity to the contrary, where there operate are several deeds, they operate according to the priority of times of delivery, it being a maxim of common law, Qui prior est tempore, potior est jure (c). 1718.

Deeds

according to

the order of

their times of delivery.

English.

Bad English will not vitiate a deed, when it does not Bad render the deed unintelligible (d). 1719.

original

creating

[Original instruments creating powers of attorney may, Deposit of under the provisions of stat. 44 & 45 Vict. c. 41, s. 53 instruments (Appendix), be deposited in the Central Office of the powers of Supreme Court of Judicature.] 1719a.

SECTION II.

The several Parts of Deeds enumerated.

attorney.

CH. 1, s. 2.

It is not necessary to the validity of a deed that it be PT. III. T. 12, framed in any particular mode whatever. The only thing absolutely essential is, that words be used which are sufficient to specify the agreement and bind the parties. But there are certain formal and technical parts in all deeds prepared by professional draftsmen, because these have been well considered and settled by the wisdom of successive ages, as the forms best calculated to express the meaning and accomplish the objects of the parties (e). 1720.

These are 1. The Date. 2. The Parties. 3. The Recitals. 4. The Operative Part. 5. The Parcels. 6. The Habendum. 7. The Declaration of Uses. 8. The Decla

(a) 4 Cruise T. 32, c. 1, § 19; Co. Litt. 229 a.

(b) 2 Sugd. Pow. 363.

(c) 4 Cruise T. 32, c. 20, § 5.

(d) The Queen v. The Inhabitants of Wooldale, 6 Ad. & E. 549.

(e) 2 Bl. Com. 398; Co. Litt. 7 a.

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