Charta, cap. 52. for thereby it is provided, Quòd liceat unicuique libero homini terras suas seu tenementa sua, seu partem inde ad voluntatem suam vendere, ita quòd feofjatus teneat, &c. de capitali domino. And herein are divers notable points to be observed. First, that this word liceat proveth that the tenant could not, or at least ways was in danger to alien parcel of his tenancy, &c. upon the said act of Magna Charta. Secondly, that upon the feotiment of the whole, the tenant shall hold of the chief lord. Thirdly, that the tenant might infeoff one of part to hold pro particula of the chief lord. But this act (the king being not named) doth not take away the king's fine due to him by the statute of Magna Charta (35). Out of that which hath been said, it is to be observed, that a man may purchase lands to him and his heirs by ten manner of conveyances, (for I speak not here of estoppels.) First, by feoffment. Secondly, by grant (of which two our author in sect. 1. speaketh.) Thirdly, by fine, which is a feoffment of record. Fourthly, by common recovery, which is a common conveyance, and is in nature of a feoffment of record. Fifthly, by exchange, which is in nature of a grant. Sixthly, by release to a particular tenant. Seventhly, by confirmation to a particular tenant, both which are in nature of grants. Eighthly, by grant of a reversion or remainder with attornment of the particular tenant, of all which our author speaketh hereafter. Ninthly, by bargain and sale by deed indented and inrolled, ordained by statute since Littleton wrote. Tenthly, by devise by custom of some particular place, as he sheweth hereafter, and, since he wrote, by will in writing, generally, by authority of parliament (G). (35) Fines for alienation are taken away as well from the king as from all others by the 12 Cha. 2. chap. 24. But the statute saves fines for alienation due by the customs of particular manors, other than fines for alienation of lands holden of the king in capite. See further on the (G) With respect to the different modes of alienation, or rather the legal evidences of the transfer of real property, they are called the common assurances of the realm, whereby every man's estate is assured to him, and all controversies, doubts, and difficulties, are either prevented or removed. And these common assurances are divided by Sir William Blackstone into four kinds, 1st. Deeds or matters in pais, which are assurances transacted between two or more private persons in pais, in the country, that is (according to the old common law) upon the very spot to be transferred. 2d. Matters of record, or assurances transacted only in the king's public courts of record. 3d. Assurances deriving their effect from special custom, obtaining in some particular places, and relating only to some particular species of property. 4th. A devise contained in a person's last will and testament, which takes no effect till after his death. 2 Bl. Com. 294.-[ Ed.] Regist. Int. les breves de onerand' pro rata portione. 10 a. 3. The different modes of alienation. 27 H. 8. cap. 16. 34 H. 8. cap. 5. 32 H. 8. cap. 2. 221 CHAP. XXXIV. OF ALIENATION BY DEED. 171b. Definition of a deed. FACTUM, Anglicè, a deed, signifieth, in the common Britt. fol. 65, 66, & 101. Fleta, lib. 3. law, an instrument consisting of three things, viz. writing, cap. 14 (Perk. sect. sealing, and delivery, comprehending a bargain or contract 133.) between party and party, man or woman. 35 b. civilians literarum obligatio (A). It is called of the Of deeds, some be indented, and some be deeds poll. Of 1. The different kinds indented, some be bipartite, some tripartite, some quadri of deeds. (a) Britt. fol. 101. Bract. lib. 2. fol. 33. Fleta, lib. 3. cap. 14. (2 Inst. 675.) *36 a. partite, &c. whereof more shall be said in the Chapter of Conditions. Also of deeds, some be inrolled, and some (a) be not inrolled. If it be inrolled according to the statute of 27 H. 8. cap. 10. it must be inrolled in parchment for the strength and continuance thereof, and not in paper, and so was it resolved in parliament *by the judges in anno 23 Eliz. Now for the rest of the parts of a deed, you shall read thereof (A) It is sometimes called a charter, cartu, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factam, because it is the most solemn and authentic act that a man can perform, in the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed. Plowd. 434. 2 Bl. Com. 295. It is probable that every alienation was very soon accompanied with some written evidence, though in the time of the Saxons a legal transfer might be made of lands by certain ceremonies, without any charter or writing. Mad. Form. Pref. Deeds or charters were notwithstanding in use at this time: these were generally called gewrite or writings; and the particnlar deed by which a free estate might be conveyed was called landboc, libellus, de terra, a donation or grant of land, and the land thus granted was called bockland. Idem, 283. Upon the introduction of the Norman customs, the solemn and public delivery of the possession, in imitation of the feudal investiture, became essentially necessary to the transfer of land, and was alone sufficient for that purpose. But, as writ ten charters constituted a much better species of evidence of the agree ment of the parties, a charter or deed, in imitation of the Breve Tes tatum of the feudal law, was usually prepared and executed; and was delivered to the purchaser at the same time with the land. The increase of commerce and wealth having introduced a greater degree of retinement in manners, agreements and conveyances became more complex, which produced an universal practice of reducing them into writing. But still lands might have been transferred by a verbal contract only, provided it was attended with a solemn and public delivery of the possession, until the latter end of the reign of Cha. 2. 4 Cru. Dig. 10, 11.-[Ed.} plentifully in our books, and in my Reports; which by this short instruction you shall easily understand (1). Of deeds some concern the realty, as a deed of feoffment; some the personalty, as a deed of gift of goods, obligations, bills, &c. And some mixt, whereof more shall be said in the Chapter of Releases. Of deeds and their distinctions, you shall read excellent cap. 14. matter in antiquity. (b) Cartarum, alia regia, alia priva- (b) Bract. lib. 2. fol. tarum, et regiarum, alia privata, alia communis, et alia 35b. Fleta, lib. 3. universitatis. Privatarum, alia de puro feoffamento et simplici, alia de feoffamento conditionali sive conventionali, alia de recognitione purâ, vel conditionali, alia de quiete clamantia, alia de confirmatione, &c. Verba intentioni, non è contra, debent inservire. Bract. lib. 2. fol. 34. Carta non est (c) nisi vestimentum donationis. Carta non (c) Fleta, lib. 6. ca. 23. est nisi vestimentum orationis. Nemo tenetur armare adversarium suum contra se. Scriptum est instrumentum ad instruendum quod mens vult. Carta est legatus mentis. (d) Benigne sunt faciendæ interpretationes cartarum propter (d) Bract. lib. 2. fol. simplicitatem laicorum, ut res magis valeat quàm pereat. 94, 95. Nihil tam (e) conveniens est naturali aquitati, quàm volunta- (e) Idem, lib. 2. fo. 18. tem domini volentis rem suam in alium transferre ratam habere. (f) Re, verbis, scripto, consensu, traditione, Verba cartarum fortius accipiuntur contra proferentem. Generale dictum generaliter est intelligendum. Verba debent intelligi secundum subjectam materiam. Carta de non ente non valet. (f) Pl. Com. in Throgmorton's case, f. 161 b. 229 a. "Deeds indented." Those are called by several names, as scriptum indentatum, carta indentata, scriptura indentata, Deeds indented and indentura, literæ indentata. An indenture is a writing con (1) See further as to deeds, Perk. c. 2. post, 6 a. and n. 5. there. Sheph. Touchst. c. 4. Vin. Abr. tit. VOL. II. Deeds, and also tit. Faits. Com. deeds poll distinguished, Vid. sect. 217. (Ante, 143 b.) Lib. 5. fol. 20. Stile's case. (2 Rol. Abr. 22. Inst. 672.) (1 Rep. 173 b.) LITTLETON. [Sect.370. 229a.] All the parts of an in denture make but one deed; and are equally binding. or taining a conveyance, bargain, contract, covenants, agreements between two or more, and is indented in the top or side answerable to another that likewise comprehendeth the self-same matter, and is called an indenture, for that it is so indented, and is called in Greek cuμygaçov (B). συμγραφον If a deed beginneth, hæc indentura, &c. and in troth the parchment or paper is not indented, this is no indenture, because words cannot make it indented. But if the deed be actually indented, and there be no words of indenture in the deed, yet it is an indenture in law; for it may be an indenture without words, but not by words without indenting. Bipartite is, when there be two parts and two parties to the deed. Tripartite, when there are three parts and three parties; and so of quadripartite, quinquepartite, &c. A deed poll is that which is plain without any indenting, so called because it is cut even, or polled (c). Every deed that is pleaded shall be intended to be a deed poll, unless it be alleged to be indented. AND for that conditions are most commonly put and specified in deeds indented, somewhat shall be here said (to thee, my son) of an indenture, and of a deed poll concerning conditions. And it is to be understood, that if the indenture be bipartite, or tripartite, or quadripartite, all the parts of the indenture are but one deed in law, and every (B) Formerly, when deeds were more concise than they are at present, it was usual to write both parts on the same skin of parchment, with some words or letters of the alphabet written between them, through which the parchment was cut, either in a strait or 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, Lyndew. 1. 1. t. 10. c. 1.; and with us chirographa or hand-writings, Mirr. c. 2. s. 27; the word cirographum or cyrographum being usually that which is divided in making the indenture: and this custom is still preserved in making out the indentures of a fine. But in other cases indenting only is used (formerly in acute angles instur dentium, like the teeth of a saw, but at present in a waving line), without cutting through any letters at all. See ant. 143 a. vol. 1. p. 447. n. (7) and n. (8). 2 BI. Com. 295, 296. Bargains and sales under the stat. 27 H. 8.; leases under the 32 H. 8. c. 28.; and bargains and sales of a bankrupt's estate (13 Eliz. c. 7. 43 Eliz. 3. 18.), must be by deed indented to be valid.-[Ed.] (C) A deed poll is not, strictly speaking, an agreement between two per sous, but a declaration of some one particular person. Infra, 229 a. It was formerly called charta de unâ parte.-[Ed.] part of the indenture is of as great force and effect, as all the parts together be (»). "All the parts of the indenture are but one deed in law." If a man by deed indented make a gift in tail, and the donee dieth without issue, that part of the indenture which belonged to the donee doth now belong to the donor, for both parts do make but one deed in law. "And every part of the indenture is of as great force, &c.” This is manifest of itself, and is proved by the books aforesaid. It is to be observed, that if the feoffor, donor, or lessor, Indenture though scalseal the part of the indenture belonging to the feoffee, &c. ed by the grantor only, is good. the indenture is good, albeit the feoffee never sealeth the counterpart belonging to the feoffor, &c. AND the making of an indenture is in two manners. LITTLETON. One is to make them in the third person. Another is to [Sect.S71. 229 b.] make them in the first person. The making in the third person Form of an indenture in the third person. is in this form. This indenture made between R. of P. of the one part, and V. of D. of the other part, witnesseth, that the said R. of P. hath granted, and by this present charter indented confirmed to the aforesaid V. of D. such land, &c. To have and to hold (2), &c. upon condition (3), &c. In witness whereof the parties aforesaid to these presents (4) interchangeably have put their seals. Or thus: In witness whereof to the one part of this indenture remaining with the said . of D. the said R. of P. hath put his seal, and to the other part of the same indenture remaining with the said R. of P, the said V. of D. hath put his seal. Dated, &c. (2) &c. not in L. and M. nor Roh. (3) &c. not in L. and M. nor Roh. (4) præsentibus, not in L. and M. nor Roh. (D) In the case of an indenture there ought regularly to be 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: though of late it is most frequent for all the parties to execute every part, which renders them all originals. 2 Bl. Com. 296. But a counterpart of a deed has been admitted to be sufficient evidence of such deed. Eyton v. Eyton, Prec. in Cha. 116. Roe, d. West v. Davis, 7 East, 363.-Ed.] |