6

with for the purposes intended by the deed: 5 and also a thing, or subjectmatter to be contracted for; all which must be expressed by sufficient names. (f) So as in every grant there must be a grantor, a grantee, and a thing granted in every lease a lessor, a lessee, and a thing demised. Secondly, the deed must be founded upon good and sufficient consideration. Not upon an usurious contract; (g) nor upon fraud or collusion, either to deceive purchasors bona fide, (h) or just and lawful creditors; (i) any of which bad considerations will vacate the deed, and subject such persons, as put the same in ure, to forfeitures, and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect for it is construed to enure, or to be effectual, only to the use of the grantor himself. (k) The consideration may be either a [297] good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty; a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant: (7) and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasers."

Thirdly; the deed must be written, or I presume printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deeds (m) Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also

f Co. Litt. 35.

g Stat. 13 Eliz. c. 3.
k Perk. § 533.

h Stat. 27 Eliz. c. 4, 13 Rep. 83.

i Stat. 18 Eliz. c. 5. m Co. Litt. 229. F. N. B. 127.

(5) As to thesc, see 3 Chitty's Com. L. 14 to 63.

(6) As to the consideration in general, see 3 Chitty's Com. L. 8. 63 to 99.

(7) This it has been said applies only to the case of a bargain and sale; for "herein it is said to differ from a gift which may be without any consideration or cause at all; and that (a bargain and sale) hath always some meritorious cause moving it, and cannot be without it." Shep. Touch. 221. A voluntary conveyance is good both in law and equity against the party himself. Tr. of Eq. b. 1. c. 5. s. 2. It was originally considered that if a person made a voluntary grant of lands, although he could not resume them himself, yet if he afterwards made another conveyance of them for a valuable consideration, the first grant would be void with regard to this purchaser under the 27 Eliz. c. 4. And though decided by lord Mansfield and the court that there must be some circumstance of fraud to vacate the first conveyance, and that the want of consideration alone was not sufficient. See Cowp. 705. Yet it was more recently determined in the case of Doe d. Otley v. Manning, 9 East, 59. that a voluntary settlement of lands made even 17 consideration of natural love and affection, and in favour of the nearest relation, as parents or children, is void, as against a subsequent purchaser for a valuable consideration, though with notice of a prior settlement before the purchase money was paid or the deeds executed, and there was no fraud in fact in the transaction; for the law, which is in all cases the judge of fraud and covin arising out of facts and intents, infers fraud in this case upon the construction of the 27 Eliz. c. 4. And it was remarked by lord Ellenborough in delivering the judgment of the court, that in the case of Doe v. Routledge, above referred to (and in which it was considered that lord Mansfield had established as a point of law, that the settlement must be fraudulent, as well as voluntary, to render it void), there was no bona fide purchaser, and that "a marriage was had upon the strength of that settlement," which is a good consideration. If a person is indebted at the time of making a voluntary grant, or becomes so scon afterwards, it will be held fraudulent and void with respect to creditors under the 13 Eliz. c. 5. and 6 Geo. IV. c. 16. Though a consideration is not in general essential to a deed. 7 T. R. 475. Chitty.

(8) Com. Dig. Fait, A. 3 Chitty's Com. L. 6. There seems no doubt that it may be printed, and that if signatures be requisite the name of a party in print at the foot of the instrument would suffice. 2 M. & S. 298.

9

have the regular stamps imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3. enacts, that no lease-estate or interest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value), shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid: unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized in writing.

Fourthly; the matter written must be legally and orderly set forth: that is, there must be words sufficient to specify the agreement and bind the

parties; which sufficiency must be left to the courts of law to de[298] termine. (n) 10 For it is not absolutely necessary in law to have all

the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity; and therefore I will here mention them in their usual (0) order.

1. The premises may be used to set forth the number and names of the parties, with their additions or titles. They also contain the recital, 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 herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted. (p)

::

2, 3. Next come the habendum and tenendum. (q) The office of the habendum is properly to determine what estate or interest is granted by the deed though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As if a grant be "to A and the heirs of his body," in the premises; habendum "to him and his heirs for ever," or vice versa; here A has an estate-tail, and a fee-simple expectant thereon. (r) But,

n Co. Litt. 225.

p See Appendix, N° 11. 1. pag. v.

o Ibid. 6.

r Co. Litt. 21. 2 Roll. Rep. 19, 23. Cro. Jac. 476.

9 lbid.

(9) See statute 55 Geo. III. c. 184. 3 Geo. IV. c. 117. 2 Chitty's Com. L. 163 to 192. (10) As to the construction of contracts in general at law and in equity, see Comyn on contracts, 2 edit. 23 to 28. 3 Chitty's Com. L. 106 to 118. No precise technical words are required in a deed to make a stipulation a condition precedent or subsequent; neither does it depend upon its being prior or posterior in the deed. But it must depend on the nature of the contract, and the acts to be performed by the contracting parties. 1 T. R. 638. And if a deed correctly describe land by its quantities and occupiers, though it describe it as being in a parish in which it is not, the land shall pass by the deed. 5 Taunt. 207. A deed made with blanks, and afterwards filled up and delivered by the agent of the party, is good. 1 Anst. 229. 4 B. & A. 672. And the palpable mistake of a word will not defeat the manifest intent of the parties. Dougl. 384.

Chitty.

(11) The maxim in pleading in favour of following approved precedents "num nihil simul inventum est et perfectum," may well be applied to conveyancing. Co. Litt. 230. a. Frequently the reason for using particular expressions will appear after many years' study, when before upon a cursory consideration, the words seemed unnecessary, if not improper.

had it been in the premises "to him and his heirs;" habendum "to him for life," the habendum would be utterly void; (s) for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. 12 The tenendum, "and to hold," is now of very little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure by which the estate grant- [299] ed was to be holden; viz. "tenendum per servitium militare, in “burgagio, in libero socagio, &c." But, all these being now reduced to free and common socage, the tenure is never specified. 13 Before the statute of quia emptores, 18 Ed. I., it was also sometimes used to denote the lord of whom the land should be holden: but that statute directing all future purchasors to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi; (1) but as this expressed nothing more than the statute had already provided for, it gradually grew out of use.

4. Next follow the terms of stipulation, if any, upon which the grant is made the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as "rendering therefore yearly the sum of ten shil"lings, or a pepper-corn, or two days' ploughing, or the like." (u) Under the pure feodal system, this render, reditus, return or rent, consisted in chivalry principally of military services; in villeinage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit. (w) To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed. (x) 14 14 But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee. (y)

5. 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; as "provided always, that if the mortgagor shall pay the mortgagee 500l. upon such a day, the whole [300] estate granted shall determine; and the like. (z)

6. Next may follow the clause of warranty; 15 whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted. (a) By the feodal constitution, if the vasal's title to enjoy the feud was disputed, he might vouch, or call the lord or donor to warrant or insure his gift; which if he failed to do, and the vasal was evicted, the lord

$2 Rep. 23. 8 Rep. 56.

t Appendix, No 1. Madox Formul, passim. w See pag. 41. x Plowd, 13. 8 Rep. 71. z Appendix, No II. § 2. pag. viii. a Ibid. No 1. pag. i.

u Appendix, No. II. § 1. pag. iii.

y Appendix, N° I pag. i.

(12) See in general, Com. Dig. Fait, E. 3. See the different powers of the premises and habendum, and how they may control each other, explained in a learned note in 2 Saunders on Uses & T. 3 ed. 255 to 262. Com. Dig. Fait, E. 9.

(13) The third part of a deed is called the tenendum, which was formerly used to express the tenure by which the estate granted was to be held. But since all freehold tenures have been changed into free and common socage, the tenendum is of no farther use, and is therefore joined to the habendum. Cru. Dig. title, 32. s. 52. Chitty. (14) The reservation of rent should be during the term, and in that case it will pass as an incident to the reversion, without any words of reservation to the heir, &c. 2 Saund. 367. 2 Preston on Conveyancing, 185.

(15) See the leamed notes referred to in 2 Saund. Rep. index, tit. Warranty; Co. Litt. by Harg. and Butler, index to notes, tit. Warranty.

was bound to give him another feud of equal value in recompense. (b) And so, by our ancient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered. (c) Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage (which was called homage auncestrel), this also bound the lord to warranty; (d) the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty, (e) because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title. (ƒ) But in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs; (g) because it is a mere personal contract on the part of the feoffor, the tenure (and of course the ancient services) resulting back to the superior lord of

the fee. And in other forms of alienation, gradually introduced [301] since that statute, no warranty whatsoever is implied; (h) they bear

ing no sort of analogy to the original feodal donation. And therefore in such cases it became necessary to add an express clause of warranty to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant. (i)

These express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet if a clause of warranty was added to the ancestor's grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him a recompense in lands of equal value: the law, in favour of alie nations, supposing that no ancestor would wantonly disinherit his next of blood; (k) and therefore presuming that he had received a valuable consideration, either in land or in money, which had purchased land, and that this equivalent descended to the heir together with the ancestor's warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in feesimple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir and this, whether that warranty was lineal or collateral to the title of the land. Lineal warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty: as where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with warranty, this was lineal to the younger son. (1) Collateral warranty was where the heir's title to the land neither was, nor could have been derived from the warranting ancestor; as [302] where a younger brother released to his father's disseisor, with war

d Litt. § 143.

h Ibid. 102.

b Feud, l. 2. t. 8. & 25.
e Co. Litt. 174.
i Litt § 733.

c Co. Litt. 384.
f Ibid. 384.
g lbid.
k Co. Litt. 375.

I Litt. § 703, 706, 707.

ranty, this was collateral to the elder brother. (m) But where the very conveyance to which the warranty was annexed immediately followed a disseisin, or operated itself as such, (as, where a father tenant for years, with remainder to his son in fee, aliened in fee-simple with warranty,) this being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseisin; and, being too palpably injurious to be supported, was not binding upon any heir for such tortious warrantor. (n)

In both lineal and collateral warranty, the obligation of the heir (in case the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor. (0) But though without assets, he was not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for if he could succeed in such claim, he would then gain assets by descent (if he had them not before), and must fulfil the warranty of his ancestor and the same rule (p) was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by-the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon the son (who was the heir of both his parents) barred him from claiming his maternal inheritance; to remedy which the statute of Gloucester, 6 Edw. I. c. 3. declared, that such warranty should be no bar to the son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III. to make the same provision universal, by enacting, that no collateral warranty should be a bar, [303] unless where assets descended from the same ancestor ; (9) but it then proceeded not to effect. However, by the statute 11 Hen. VII. c. 20., notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he be also heir to the wife. And by statute 4 & 5 Ann. c. 16. all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession, shall be void against his heir. By the wording of which last statute it should seem that the legislature meant to allow, that the collateral warranty of tenant in tail in possession, descending (though without assets) upon a remainder-man or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets should not bar the issue in tail, yet they such warranty with assets to be a sufficient bar: (r) which was therefore formerly mentioned (s) as one of the ways whereby an estate-tail might be destroyed; it being indeed nothing more in effect than exchanging the lands entailed for others of equal value. They also held, that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue; and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of