c. 65, s. 1), which vests an intestate's real estate in his administrator, and gives the heir no legal title to it until the administrator conveys it to him, it is difficult to say.

A devisee of distinct estates, where the devises are for his own benefit absolutely, may disclaim one or more of the devises without disclaiming the others (h). But, as regards trust estates, there seems to be now some question, whether the trustee can disclaim one estate without disclaiming the others (i), which partial disclaimer used to be a very common thing, more especially where the trust estates comprised lands of copyhold tenure (k).

(h) Freke v. Calmady, (1886) 32 Ch. D. 408; Frewen v. Law Life Assurance Society, [1896] 2 Ch. 511. (i) In re Lord and Fullerton,

[1896] 1 Ch. 228.

(k) Lord Wellesley v. Withers, (1855) 4 El. & Bl. 750.

CHAPTER XVI.

OF DEEDS.

[BEFORE Considering the divers modes of conveyance by which alienations, by the mutual consent of the parties, may be effected, that is to say, before considering the different species of deeds,-it is convenient to consider deeds themselves generally. And in treating of deeds, we shall consider, first, what a deed is; secondly, its requisites; thirdly, how it may be avoided; and lastly, the general rules for its construction.

I. First, what a deed is.-A deed is a writing sealed and delivered by the parties. It is sometimes called a charter (carta), from its materials (1), although more usually, and when applied to the transactions of private. subjects, almost exclusively, it is called "a deed," factum, par excellence, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property. Therefore a man, at any rate where the deed is based on valuable consideration (m), shall always be estopped by his own deed, that is, shall not be permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed (n).] And for the same reason, when an engagement has been made by way of simple contract, that is, without deed, and afterwards the very same engagement is made between the same parties by deed, the first contract is merged in the second (o). Further, a

(7) Co. Litt. by Harg. 9 b, n. (1).

(m) Lovett v. Lovett, [1898] 1 Ch. 82.

(n) Plowd. 434; Co. Litt. 260,

352 a; Low v. Bouverie, [1891] 3 Ch. 82.

(0) Sharpe v. Gibbs, (1864) 16 C. B. (N.s.) 527.

contract by deed is not capable of being contradicted or explained by any other contract or declaration between the same parties, which is not itself also under seal (p).

[If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties; and the deed so made is called an indenture, because the parts used formerly to be cut or indented in acute angles (instar dentium, or serrated) on the top or side, to tally or correspond the one with the other or others (q). At one time, too, when deeds were more concise than they are at present, and only two parts were required, it was usual to write both parts on the same piece of parchment, with some word (or letters of the alphabet) written between them, through which the parchment was cut, either in a straight or in an indented. line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists (1), and with us chirographa, or handwritings (s)-cirographum, or cyrographum, being usually the word which was divided in the cutting;] and in the indentures of a fine, this custom continued to be observed until the abolition of that

species of conveyance, But the practice of cutting through any word, (or letters of the alphabet,) fell into disuse; and by the Real Property Act, 1845, s. 5, a deed, purporting to be an indenture, is to have the effect of an indenture though not actually indented. [When the several parts of an indenture 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 termed counterparts (t); though of late it has become most frequent for all the parties to execute every part, which renders them all originals. A deed made

(p) Gwynne v. Dary, (1840) 1 Man. & G. 857.

(g) Litt. s. 371; Co. Litt. 476, 229 a, n. (1).

() Lyndew. 1. 1, t. 10, ch. 1.

(s) Mirrour, ch. 2, s. 27; Co. Litt. by Harg. 143 b, n. (4).

(t) Burchell v. Clark, (1877) 2 C. P. D. 88.

[by one party only, is called a deed-poll (u), such a deed having (in old times) been polled (i.e., shaved even), and not indented.

II. Secondly, as to the requisites of a deed. Of these, the first is, that there be persons able to contract and to be contracted with, for the purposes intended by the deed; and also a thing, or subject-matter, to be contracted for and all these must be expressed by sufficient names (x). Thus, in every grant there must be a grantor, a grantee, and a thing granted; and in every lease, a lessor, a lessee, and a thing leased. And the second requisite is, that the deed must be written or printed, either upon paper or on parchment; for if on stone, board, linen, leather, or the like, it is no deed (y). A deed must be duly stamped; else it cannot, in general, be given in evidence (z).

And it is a third requisite, that the matter of the deed be legally and orderly set forth; that is, there must be words sufficient to specify the agreement of the parties. For it is not absolutely necessary in law, to have all the formal parts that are usually drawn out in deeds (a). As these

(u) Mirrour, ch. 2, s. 27; Litt. ss. 371, 372.

(c) Co. Litt. 35 b.

(y) Ibid. 229 a; F. N. B. 122. (≈) The principal Act relating to the stamps on deeds is the Stamp Act, 1891 (54 & 55 Vict. c. 39); and by the 14th section of that Act, it is provided, that on the production of an instrument chargeable with any duty, as evidence in any court of civil judicature, if the instrument be one which may legally be stamped after execution, it may be received in evidence, saving all just exceptions on other grounds, on payment of the amount of the unpaid duty, and of the

penalty payable by law on stamping after execution, and of a further sum of 11. And the penalty is fixed, by the 15th section of the Act, at the sum of 107., together with interest at 57. per cent. on the amount of the unpaid duty, where this exceeds 101. There is also the Stamp Act, 1888 (51 Vict. c. 8), by which (sect. 18) it is provided, that the person by that Act made liable to pay the duty, if he neglects to pay same, forfeits 10., and in addition pays the above-mentioned penalty of 107. and interest, and a further penalty equal to the amount of the stamp duty.

(a) Co. Litt. 6a; 225 a.

[formal parts, however, have been settled by the wisdom. of successive ages, it is prudent not to depart from them without good reason or urgent necessity. Therefore, they shall be here mentioned in their usual order (b).

1. The premises set forth the number and names of the parties, with their additions or titles;] and, in the case of an indenture, the deed is always formally described as made inter partes, that is, as made between such an one of the one part, and such another of the other part. As to which, this distinction was formerly established, that one named as a party to an indenture could not covenant therein with a stranger (or person not named as a party), nor could the latter take an estate under the deed, except by way of remainder (c), though a stranger might covenant with one who was a party, binding himself by executing the deed (d). But, by the Real Property Act, 1845, s. 5, an immediate estate and interest in any hereditaments, and the benefit of a condition or covenant respecting any hereditaments, may be taken, though the taker be not named a party to the deed. The premises also contain the recitals, if any, of such deeds; agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded, and they set down the consideration upon which the deed is made; and then follows the certainty of the grantor and grantee, and of the thing granted. And, as regards the description of the thing granted, a conveyance of any land will suffice to pass also the structures or buildings thereon, as well as the

(b) When the transaction is a purchase, the purchaser prepares the draft of the conveyance; and when that draft is approved by the vendor, the purchaser also prepares an engrossment of the deed properly stamped, and sees to its due execution. But when the transaction is a lease, the draft and engrossment,

properly stamped, of the lease are usually prepared not by the lessee but by the lessor, although at the lessee's expense.

(c) Reeves v. Watts, (1866) L. R., 1 Q. B. 412.

(d) Co. Litt. 259 b; Berkeley v. Hardy, (1826) 5 B. & C. 355.