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OF ALIENATION BY DEED.
OF DEEDS GENERALLY AND THEIR PARTS.
CH. 1, s. 1.
Of Deeds generally.
Deeds, when considered with reference to the parties to Deeds are
mutual stipulations by two or more persons (c). For- ture.
(a) 4 Cruise T. 32, c. 1, § 16 ; 2
CH. 1, B. 1.
Reason for indenting.
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 Modern way the other (a). Afterwards, indenting in an undulating ing. line came into use, without cutting through any words
or letters at all (6). 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.
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. Indenting As practised in modern times, however, it can be of no necessary. 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 And though that Act is repealed by the stat. 8 & 9 Vict.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. Originals In the case of an indenture, there ought regularly to be parts. 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. Definition A deed poll (which is so called because not indented, poll.
but cut in a straight line) is not strictly speaking an
(a) 4 Cruise T. 32, c. 1, $ 20. Co. Litt. 229 a, b, 1.
(6) 2 Bl. Com. 296. See also Co. (d) 1 Pres. Shep. T. 59. Litt. 229 a, n. (1).
(C) 2 Bl. Com. 296 ; 4 Cruise T. (C) 4 Cruise T. 32, c. 1, § 22 ; 32, c. 1, § 23 ; 1 Pres. Shep. T. 51.
of a deed
agreement between two persons, but a declaration of some Pr. III.T. 12,
CH. 1, s. 1. 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 From what 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 the order of of times of delivery, it being a maxim of common law, of del Qui prior est tempore, potior est jure (c). 1718.
Bad English will not vitiate a deed, when it does not Bad render the deed unintelligible (d). 1719.
[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.
CH. 1, s. 2.
SECTION II. The several Parts of Deeds enumerated. It is not necessary to the validity of a deed that it be Pr. 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; ('0. (d) The Queen v. The Inhabitants Litt. 229 a.
of Wooldale, 6 Ad. & E. 549. (6) 2 Sugd. Pow. 363.
(c) 2 Bl. Com. 398 ; Co. Litt. 7 a. (c) 4 Cruise T. 32, c. 20, $ 5.
Pr. III.T.12, ration of Trusts. 9. The Reddendum. 10. The Conditions. CH, 1, %. 2.
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 (6). 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.
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
Pt. III.T. 12,
(a) 2 Bl. Com. 298–304. See (©) 2 Bl. Com. 298 ; Co. Litt. 6 Burton, $ 513.
a; Burton, $ 516; 1 es. Shep. T. (6) See Sugd. Concise View, 537; 52, 74. 1 Jarm, & Byth. by Sweet, 90 ; 1 (d) 1 Pres. Shep. T. 74, Pres. Shep. T. 55.
. 1, .
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.
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.
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.
Of the Parties. With respect to the parties to a deed, they are either Pt. 111. T. 12,
CH. 1, 8. 4. active or passive. Those who do the act which is to accomplish the object of the deed are the active parties : either active
or passive. 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 (f). 1730.
(a) 4 Cruise T. 32, c. 20, $ 2. Co. Litt. 46 b. (6) 2 Bl. Com. 304.
(d) Burton, $ 525. (c) 2 Bl. Com. 304; 4 Cruise T. (e) Burton, $ 449. 32, c. 20, $ 4; 1 Pres. Shep. T. 55 ; (5) See 4 Cruise T. 32, c. 20, 7.