that is, something issuing out of the land, not part of the land itself, and not issuing out of any other land or thing (u). (360) Conditions. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated; (361) as "provided always, that if the mortgagor shall pay the mortgagee 5001. upon such a day, the whole estate granted shall determine;" or, as the modern form of mortgage [* 487] runs, "provided always that if the mortgagor shall pay the mortgagee 5001. upon such a day, the mortgagee shall, whenever requested by the mortgagor, reconvey the estate." This clause follows the tenendum. The last part of a conveyance usually consists of covenants, or conventions, which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain statements, or may bind himself Covenants. to perform, or give, something to the other. (362) Thus, the grantor may covenant that he has a right to convey; or for the grantee's quiet (u) Shep. Touch. 80. See ante, p. 35. (360) See Case v. Haight, 3 Wend. 632, 635; Dyer v. Sanford, 9 Metc. 395, 404; Cutler v. Tufts, 3 Pick. 272, 278. (361) A father who conveys real estate to a married daughter by a deed which contains a condition that, if the daughter shall die without children living at the time of her decease, the property shall revert to the grantor and his heirs, and the daughter dies, leaving one child, this is a performance of the condition, and upon the death of such child the estate will go to its heirs. Pierson v. Armstrong, 1 Iowa, 282, 295. (362) The importance of covenants in a deed will be fully seen, when it is remembered that, in a conveyance of real estate, there is no warranty of title if the deed does not contain any covenants. And, in such a case, the purchaser has no remedy either at law or in equity. In this country, the usual covenants inserted in a conveyance of real estate in fee, are, 1. That the grantor is lawfully seized of the premises described in the deed. Parker v. Brown, 15 N. H. 186; Mills v. Catlin, 22 Vt. 106; Lockwood v. Sturdevant, 6 Conn. 285; Mott v. Palmer, 1 Comst. 564; Fitzhugh v. Crogan, 2 J. J. Marsh. 430; Martin v. Baker, 5 Blackf. 232; Woods v. North, 6 Humph. 309; Brandt v. Foster, 5 Clarke (Iowa), 287. 2. That he has good right and lawful authority to convey such land. Griffin v. Fair brother, 10 Me. 91; Wheeler v. Hatch, 3 Fairf. (Me.) 389; Raymond v. Raymond, 10 Cush. 134; Abbott v. Allen, 14 Johns. 252; Collier v. Gamble, 10 Mo. 472; Brandt v. Foster, 5 Iowa, 294. It is sometimes said that covenants of seisin and of right to convey amount to the same thing. Id. See Rawle on Cov. for Title, 53, etc., 4th ed. 3. That the land is free from any incumbrances. Townsend v. Weld, 8 Mass. 146; Harlow v. Thomas, 15 Pick. 66; Sedgwick v. Hollenback, 7 Johns. 376; Butler v. Gale, 27 Vt. 739; Wilson v. Cochran, 46 Penn. St. 232; Mitchell v. Warner, 5 Conn. 527; Carter v. Denman, 3 Zabr. (N. J.) 273; Bean v. Mayo, 5 Me. 94; Norton v. Babcock, 2 Metc. (Mass.) 510; Jones v. Davis, 24 Wis. 229. 4. That the grantee shall peaceably enjoy the premises. Wilder v. Ireland, 8 Jones' Law, 88; Mayor of N. Y. v. Mabie, 13 N. Y. (3 Kern.) 156; O'Keefe v. Kennedy, 3 Cush. (Mass.) 325; Switzky v. Canning, 33 Cal. 308; Greenvault v. Davis, 4 Hill, 645; Booth v. Starr,5 Day, 282; Funk v. Creswell, 5 Iowa, 86; Cable v. Wellborn, 2 Dev. (N. C.) 390; Leary v. Durham, 4 Ga. 593; Rickert v. Snyder, 9 Wend. 422; Clarke v. McAnulty, 3 Serg. & R. 372; See Rawle on Cov. for Title, 147, 4th ed. 5. That the grantor will warrant and defend the title against all lawful claims. Fowler v. Poling, 6 Barb. 165, 170; Home Life Ins. Co. v. Sherman, 46 N. Y. (1 Sick.) 370; Rea v. Minkler, 5 Lans. 196; Crutcher v. Stump, 5 Hayw. (Tenn.) 100; Witty v. Hightower, 12 Sm. & M. 478; Patton v. McFarlane, 3 Penn. St. 422; Caldwell v. Kirkpatrick, 6 Ala. 62; Athens v. Male, 25 Ill, 198; Kellogg v. Platt, 33 N. J. L. (4 Vroom) 328, 333. Covenant real. enjoyment; or the like: the grantee may covenant to pay his rent, or keep the premises in repair, &c. If the covenantor, as is usual, covenants for himself and his heirs, it is then sometimes called a covenant real (x), and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise; if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty. These covenants for title in purchase deeds are usually restricted so as to extend only to the acts and omissions of the grantor, and all persons through whom he claims by descent or devise, but do not go beyond the acts of the last purchaser of the estate. In mortgage deeds the practice is different, as it is invariable that a mortgagor gives absolute covenants for title. Covenants on the part of the grantee are sometimes inserted restricting the free use of the land and giving rights to the grantor in respect of adjoining land retained by him. Such covenants are, of course, enforceable against the covenantor personally; but how far they will continue to be binding upon the land in the hands of subsequent owners is a question involving points [* 488] of the nicest character. The general result of the cases seems to be, that, except where by reason of notice or otherwise, there would be a breach of good faith in violating the covenant, the burden of it does not continue to bind subsequent owners (y). We may notice, however, that an important distinction has been established between covenants entered into between landlord and tenant and those between vendor and purchaser; the former being much more favoured in law; as seems reasonable from the continuing nature of the relation existing between the parties, and also because such covenants being between persons interested in the same land and relating solely to that land, do not constitute any impediment to its free alienation, further than arises from the fact of there being the two parties - the landlord and tenant. The conclusion. Lastly, comes the conclusion, which mentions the execution and date of the deed, or the time of its being given or executed, either expressly, or by reference to some day and year before mentioned (z). Not but a deed is good, although it mention no date, which indeed in early times was very common: or bears a false date; or even if it has an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is delivered, can be proved. For then the day of delivery constitutes the date of the deed (a). (363) (x) Though the expression has been also used with a different meaning, see Shepp. Touch. 161. (y) See Spencer's Case, 5 Rep. 16, where the law is laid down by Lord Coke, but not so as to meet the numerous complications which have since arisen. See Keppell v. Bailey, 2 M. & K. 517; and Coles v. Sims, 5 De G. M. & G. 1. Recent cases have principally arisen out of the restrictions which persons who have laid out an estate for build ing endeavoured to impose upon purchasers (a) Co. Litt. 46; Dyer, 28; Com. Dig. Fait. B. Dates began to be added in the reigns of Edw. 2 and Edw. 3. See 2 Ld. Raym. 1076; 4 B. & Cr. 908; and Bac. Ab. Leases, I. 1. (363) The American cases are to the same effect. Jackson v. Schoonmaker, 2 Johns. 234; Genter v. Morrison, 31 Barb. 155; Geiss v. Odenheimer, 4 Yeates, 278; Thompson v. Thompson, 9 Ind. 333; Swan v. Hodges, 3 Head. 254; Banning v. Edes, 6 Minn. 402; Colquhoun v. Atkinson, 6 Munf. 550. 5. Deed must be read on request. The fifth requisite for making a good deed is the reading of it, [* 489] which is necessary, wherever any of the parties desire it, though not otherwise (b); (364) and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him, if he request it. If it be read falsely, it will be void; at least for so much as is mis-recited: unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party (c). Sixthly, it is requisite that the party, whose deed it is should seal it. (365) The use of seals, as a mark of authenticity to letters and other instruments in We read of it among the Jews writing, is extremely ancient. 6. Sealing and signing. and Persians in the earliest and most sacred records of history (d). And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase (e). In the civil law also (f), seals were the evidence of truth; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use in England. For though Sir Edward Coke (g) relies on an instance of king Edwin's making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation: and perhaps the charter he mentions may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our ancient * historians, that sealing was not then in common use. The method [*490] of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross: which custom illiterate persons do, for the most part, to this day keep up; by signing (b) R. v. Longnor, 4 B. & Ad. 647; see 8 Car. & P. 124. (c) 2 Rep. 3, 9; 11 Rep. 27. (d) 1 Kings, c. 21; Daniel, c. 6; Esther, c. 8. (e) "And I bought the field of Hanameel, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took witnesses, and weighed him the money in the balances. And I took the evidence of the purchase, both that which was sealed according to the law and custom, and also that which was open." c. 32. (f) Inst. 2, 10. 2 & 3. (364) Although a grantor be very illiterate, and cannot read or write, yet a deed executed by him will not be void for the omission to read the deed to him, unless he requested its reading. Hallenbeck v. Dewitt, 2 Johns. 404; Harris v. Story, 2 E. D. Smith, 364; Ellis v. McCormick, 1 Hilt. 313. So where the party can read and write, a deed executed by him will not be declared void on the ground of fraud or mistake because the whole of the deed was not read by the grantor. Jackson v. Croy, 12 Johns. 427. See Wittington v. Warren, 10 Metc. 431, 434. But where an illiterate man is induced to sign a deed by a misrepresentation of its contents, the deed is void. Jackson v. Hayner, 12 Johns. 469; Suffern v. Butler, 18 N. J. Eq. (3 C. E. Green) 220. See Taylor v. King, 6 Munf. 358. Until evidence to the contrary is offered, it is to be presumed that a grantor knew the contents of the deed he executed. Kimball v. Eaton, 8 N. H. 391. (365) The general rule stated in the text is the rule in this country. But what a seal is, or what act constitutes sealing a deed, is to be determined by the laws of the State in which the land is situated "In the eastern States, sealing, in the common-law sense, is requisite; but in the southern and western States, from New Jersey inclusive, the impression on wax has been disused to such an extent as to induce the courts to allow (but with certain qualifications in some of the States) a flourish with the pen at the end of the name, or a circle of ink or scroll, to be a valid substitute for a seal." 4 Kent's Com. 452, 453. See 3 Washb Real Prop. (3d ed.) 246, 247; 1 Am. Law. Rev. 638. a cross for their mark when unable to write their names. It was very common also to attach some instrument, the handle of a knife or other similar object to the deed, as a symbol of the property transferred (h). This inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters (i). In like manner, and for the same unsurmountable reason, the Normans, a brave but illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names: which custom continued, when learning made its way among them, though the reason for doing it had ceased; and hence the charter of Edward the Confessor to Westminster Abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England (k). At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross (7). And in the reign of Edward I. every * freeman, and even such of the more substantial [* 491] villeins as were fit to be put upon juries, had their distinct particular seals (m). The impressions of these seals were sometimes a knight on horseback, sometimes other devices: but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the First, who brought them from the crusade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained. One piece of wax may serve as a seal for several persons, if each of them impresses it himself, or one for all, by proper authority, or in the presence of all, and if it appear by the deed to be the seal of all (n). (366) Signing formerly was not, and indeed appears still not to be, essential to the validity of a deed as such, though this point since the statute of frauds is not altogether free from doubt (o). No prudent person now would think of executing a deed without signing it either by writing or a mark (p); (367) yet (h) Among the muniments of Trinity Coll. Cambridge, is an ancient deed of Saxon times, with the handle of a knife attached to it. (i)" Propria manu pro ignorantiâ literarum signum sanctæ crucis expressi et subscripsi." Seld. Jan. Angl. 1. 1, s. 42. And this (according to Procopius), the emperor Justin in the east, and Theodoric king of the Goths in Italy, had before authorised by their example, on account of their inability to write. (k) Lamb. Archeion. 51. (1) Normanni chirographorum confectionem, cum crucibus aureis, aliisque signaculis sacris, in Anglia firmari solitam, in caeram impressam mutant, modumque scribendi Anglicum rejiciunt." Ingulph. See also for like infor mation, Florentius Vigornensis, cited in Dugd. Off. Ch. 2. (m) Stat. Exon. 14 Edw. 1. (n) Park. ss. 130, 132, 134; 4 T. R. 313; 6 M. & S. 319. (0) 18 Ves. 459; 8 Ves. 185, 504; 3 N. & P. 228. (p) Where the signature was appended by another, and afterwards shown to and approved by the party, it was left to the jury to judge from all the circumstances, including subsequent conduct, whether the deed was well executed, although the son had not been authorised to execute the deed by an instrument under seal. Tupper v. Foulkes, 9 C. B. N. S. 797. (366) See, to the same effect, Mackay v. Bloodgood, 9 Johns. 285; Van Alstyne v. Van Slyck, 10 Barb. 383, 387; Townsend v. Hubbard, 4 Hill, 351; Tasker v. Bartlett, 5 Cush. 359, 364; Lambden v. Sharp, 9 Humph. 224; Bohannons v. Lewis, 3 T. B. Monr. 376; Yarborough v. Monday, 3 Dev. L. (N. C.) 420. (367) In this country it is so general a practice to sign a deed in some manner that no purchaser would knowingly accept an unsigned deed. See 3 Washb. Real Prop. (3d ed.) 244 the common form of attestation "sealed and delivered" (if it has even now entirely gone out of use in favour of the more full "signed, sealed, and delivered,") may still be found on deeds of very moderate antiquity. * But we must bear in mind, with reference to the necessity for signature to validate a deed, that by reason of the provisions of several acts of [* 492] parliament and principally the one just mentioned (29 Car. 2, c. 3, the Statute of Frauds), signature by the party or by an agent lawfully authorised in writing, is rendered necessary for many purposes. That statute requires such signature in the following among other cases; the assignment, grant, or surrender of leases, estates, or interests of freehold for years, or any uncertain interest in lands, tenements, and hereditaments, not being copyholds. certainly seems to include all assurances by deed, though the opinion that it does so is by no means universal (q). The statute provides also that contracts for sale of lands, tenements, or hereditaments, and declarations of trust relating to them, not arising by operation of law, must be in writing, duly signed by the party or his agent (r). (368) This A seventh requisite to a good deed is that it be delivered, by the party himself or his certain attorney: which therefore is also expressed in the attestation; "sealed and delivered." (369) A deed takes effect only from this tradition or delivery; for, as we before said, if the date be 7. Delivery of deed. (q) See Mr. Preston's note to Shep. Touch. 56 also Cooch v. Goodman, 2 Q. B. 580; Aveline v. Whisson, 4 M. & G. 801; and the above mentioned case of Tupper v. Foulkes, 9 C. B. N. S. 797. (r) See vol. iii. p. 56. Another act requir ing signature is 9 Geo. 4, c. 14. (368) See ante, 725, note 353. (369) It is universally agreed that delivery is essential to the validity of a deed. The cases are very numerous, and but a few of them need be cited. Stiles v. Brown, 16 Vt. 563; Fairbanks v. Metcalf, 8 Mass. 230, 239; Jackson v. Leet, 12 Wend. 105; Church v. Gilman, 15 id. 656, 658; Hulick v. Scovil, 4 Gilm. 175; Fletcher v. Mansur, 5 Ind. 267: Hughes v. Easton, 4 J. J. Marsh. 572; Overman v. Kerr, 17 Iowa, 485, 490. The delivery of a deed consists in its voluntary transfer by the grantor to the grantee in such a manner as to vest in the grantee all the right, title or interest intended to be conveyed by the grantor, and expressed in such deed. The grantor must give up dominion or control over the deed, and the grantee must expressly or impliedly accept the deed and the estate conveyed by it. The grantor and the grantee may act by their duly authorized agents, and the delivery and acceptance will be as valid as though the acts had been performed by them in person. Belden v. Carter, 4 Day, 66; Hatch v. Hatch, 9 Mass. 307; Foster v. Mansfield, 3 Metc. (Mass.) 412; Turner v. Whidden, 22 Me. 121; Lessee of Shirley v. Ayres, 14 Ohio, 307. To render the act of the agent valid he must pursue the directions given to him. Smith v. South Royalton Bank, 32 Vt. 341; Hinman v. Booth, 21 Wend. 267; Black v. Shreeve, 13 N. J. Eq. (2 Beasl.) 455; Everts v. Agnes, 6 Wis. 453; Cincinnati, etc., R. R. Co. v. Iliff, 13 Ohio St. 235. A complete delivery of a deed requires its acceptance by the grantee, and this may be presumed from his possession of it. Ward v. Winslow, 4 Pick. 518; Den v. Farlee, 21 N. J. L. (1 Zabr.) 279; Green v. Yarnall, 6 Mo. 326; Clarke v. Ray, 1 Harr. & Johns. 318; Southern Life Ins., etc., Co. v. Cole, 4 Fla. 359; Stewart v. Redditt, 3 Md. 67; Comer v. Baldwin, 16 Minn. 172. This presumption may be rebutted, and it may be shown that the grantee took possession of the executed deed without the grantor's consent. Little v. Gibson, 39 N. H. 505; Mills v. Gore, 20 Pick. 36; Hadlock v. Hadlock, 22 Ill. 388; Den v. Farlee, 21 N. J. L. (1 Zabr.) 279; Morris v. Henderson, 37 Mo. 501; Williams v. Sullivan, 10 Rich. Eq. 217. |