Pr. III.T. 12, ration of Trusts. 9. The Reddendum. 10. The Conditions. CH. 1, s. 2. PT. III.T. 12, Mode of dating. 11. The Provisoes, Declarations, or Special Stipulations appropriate to the particular transaction. 12. The Covenants. 13. The Testimonium or Conclusion (a). 14. The Seals and Signatures. 15. The Attestation. 16. The Receipt for the Consideration indorsed, if there is any pecuniary consideration. The last two are only parts of the deed in a qualified sense, as regularly occurring in the case of formal agreements under seal, but a deed is complete in itself without them. And even when they occur, they are not regarded as themselves under seal (b). 1721. Some of the parts above mentioned always occur in all formal deeds. Such are, 1. The Date. 2. The Parties. 3. The Operative Part. 4. The Testimonium. 5. The Seals and Signatures. 6. The Attestation. 1722. Recitals are also usually required and inserted in indentures. 1723. The other parts are peculiar to certain deeds. 1724. The date, the parties, the recitals, the operative part, and the parcels are all included in the term "the premises," as used in speaking of a deed (c). But this word, when used in a deed, sometimes refers to the parcels or property comprised in the deed, and at other times it is used in reference to facts and transactions which occur in a former part of the deed, as things præmissa or preceding (d). 1725. SECTION III. Of the Date. In expressing the date of a deed, that is, the time of the making thereof, it was the usual practice to mention (a) 2 Bl. Com. 298-304. See Burton, § 513. (b) See Sugd. Concise View, 537; 1 Jarm. & Byth. by Sweet, 90; 1 Pres. Shep. T. 55. (c) 2 Bl. Com. 298; Co. Litt. 6 a; Burton, § 516; 1 Pres. Shep. T. 52, 74. (d) 1 Pres. Shep. T. 74. CH. 1, s. 3. the year of the reign of the Sovereign as well as the PT. III.T. 12, year of our Lord, but the modern practice is only to mention the year of our Lord. 1726. The date may be placed either at the beginning or at the end. In deeds indented, it is now usually placed at the beginning, and in deeds poll at the end (a). 1727. wrong date. A deed is good, though it mention no date, or though No date, or it have a false date, i.e., a date which is not the date of its delivery, or an impossible date, as the 30th of February; provided the real day of its being dated or delivered can be proved (b). In such a case, it will take effect from the time of its delivery (c). 1728. conclusive. The date mentioned in the deed is not conclusive, Date not even against the parties, unless perhaps it be made so by inrolment (d). But a deed is presumed to have been executed at the date expressed in it, unless the contrary be shown (e). 1729. SECTION IV. Of the Parties. CH. 1, s. 4. Parties are or passive. With respect to the parties to a deed, they are either PT. III.T. 12, active or passive. Those who do the act which is to accomplish the object of the deed are the active parties: either active those in whose fayour the act is done are the passive parties. The former are distinguished by the termination or in their designations, the latter by the termination ee. Thus, parties who grant, lease, or release, are the active parties, and are called the grantors, lessors, and releasors; and those to whom lands are granted, leased, or released, are the passive parties, and are called the grantees, lessees, or releasees (ƒ). 1730. (a) 4 Cruise T. 32, c. 20, § 2. (b) 2 Bl. Com. 304. (c) 2 Bl. Com. 304; 4 Cruise T. 32, c. 20, § 4; 1 Pres. Shep. T. 55 ; Co. Litt. 46 b. (d) Burton, § 525. (f) See 4 Cruise T. 32, c. 20, § 7. PT. III.T. 12, Who must be parties. When a person need not be named as a premises. All those who have any estate, right, title, or interest whatever, either at law or in equity, in that which is the subject matter of a deed, must necessarily be parties to it, if they are to be bound by it (a). 1731. Even under the old law, a person may take an estate in remainder by a deed to which he is not a party, and party in the when the person to whom the remainder is limited enters on the land, he then becomes bound to perform the conditions contained in the deed (b). A power of attorney may also be given by indenture to a person who is not named as a party (c). And, even under the old law, if no person is named in the premises, one who is named for the first time in the habendum may take an immediate estate; but if any other person was named in the premises as grantee, no new grantee could be added in the habendum in an indenture, unless in correction of an evident clerical mistake, or except by way of remainder or by way of use (d). 1732. Arrangement of the parties. But by the stat. 7 & 8 Vict. c. 76, s. 11, it was enacted "that any person, not being a party to any deed, may take an immediate benefit under it in the same manner as he might under a deed poll." And although that statute was repealed by the stat. 8 & 9 Vict. c. 106, yet by s. 5 of the latter Act, it is enacted that "under an indenture, executed after the first day of October, 1845, an immediate estate or interest, in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture." 1733. With respect to the arrangement of the parties, the active parties should be named before the passive parties; (a) 4 Cruise T. 32, c. 2, § 3. (d) 9 Jarm. & Byth. by Sweet 87; 4 Cruise T. 32, c. 2, § 3; and c. 20, § 67, 69, 71; Burton, § 442; 1 Pres. Shep. T. 76. CH. 1, s. 4. the legal owner before the equitable owner; the free- Pr. III.T. 12, holder before the termor; those who have estates before those who have mere rights; the vendor after all the other active parties; the purchaser before the parties on his behalf. For the sake of perspicuity, if the same persons are made parties in different characters (e.g., both as beneficial owners and as trustees), they should be named as parties of as many different parts as they sustain different characters; and the same rule is to be observed if any of the parties are to take estates or to receive benefits under different characters or in different modes (a). But the rule of law does not require this or any other arrangement of the parties (b). 1734. of the The parties to a deed ought to be described by their Description proper Christian and surnames, their rank, profession, parties. and place of residence. But if the description, however imperfect, is sufficient to distinguish the person described from all others, it will be good. Nihil facit error nominis cum de corpore constat (c). And where a party to a deed is named by different Christian names in different parts of the deed, parol evidence is admissible to show by whom the deed was executed (d). 1735. are capable not. If several join in a deed, and some are able to make Where some such a deed, and some are not able, the deed is deemed and others to be the deed of the former alone (e). If there are two grantees, and one of them only is capable, the person who is capable will take the whole exclusively, if they were to be joint tenants, because joint tenants take per mie et per tout; but only an aliquot part, if they were to be tenants in common, because tenants in common take per mie only. But in a gift to persons, as a class, (a) Martin's Conveyancer's Recital Book, 25; 9 Jarm. & Byth. by Sweet, 204. (b) 2 Pres. Conveyancing, 419. Burton, § 529. (d) The Queen v. The Inhabitants of Wooldale, 6 Ad. & E. 549. (e) 1 Pres. Shep. T. 81-2; 4 Cruise T. 32, c. 20, § 8. PT. III.T. 12, grantors or grantees. as tenants in common, those who are capable will take the entirety (a). 1736. Who may be All persons that may be grantors may be grantees. And some who cannot grant or give, may yet take or receive (b). 1737. Conveyance by a person etc. A person born deaf and dumb is not thereby incapacitated to execute a deed or will, if he has sufficient understanding to give evidence of his assent, either by his own signs, or by signs with the assistance of an interpreter. And he might have acknowledged a fine or suffered a recovery (c). But persons who are born blind as well as deaf and dumb, as they have always wanted the common inlets of understanding, are incapable of contracting or making a gift, lease, grant, or will (d). 1738. If a gift or grant of goods is made to the churchwardens or to the parishioners of Dale, by those words, it seems this gift is good, and the churchwardens will take to the use of the parish (e). But in general if a grant of land is made to the churchwardens or to the parishioners or to the inhabitants of Dale, or if a grant is made to the commoners of such a waste, or to the lord and his tenants, these are not good grants: for, although these persons are capable, yet they are not capable by these names (f). 1739. [With respect to conveyances made after the 31st of to himself, December, 1881, it is enacted by stat. 44 & 45 Vict. c. 41, s. 50 (Appendix), that "Freehold land, or a thing in action may be conveyed by a person to himself jointly with another person by the like means by which it might be conveyed by him to another person; and may in like manner be conveyed by a husband to his wife, and by (a) 1 Pres. Shep. T. 71, 81-2, 237. 22. (b) 2 Pres. Shep. T. 235. (c) 3 Jarm, & Byth. by Sweet, (d) 3 Jarm. & Byth. by Sweet, 23; Co. Litt. 8 a. (e) 2 Pres. Shep. T. 237. (f) 1 Pres. Shep. T. 237; see infra, Part IV. T. 1, Ch. 8. |