229 a. Writing on parchment or paper. (Ante, 35 b. 36 a.) 14 E. 3. Ley 79. 4 And here it is to be understood, that it ought to be in parchment or in paper. For if a writing be made upon a piece of wood, or upon a piece of linen, or in the bark of a tree, or on a stone, or the like, &c. and the same be sealed or delivered, yet it is no deed, for a deed must be writ- 4 ten (1) either in parchment or paper, as before is said, for the writing upon these is least subject to alteration or corruption (1). The sealing of charters and deeds is much more ancient than some out of error have imagined (14); for the charter of king Edwin, brother of king Edgar, bearing date anno Domini 956, made of the land called Jecklea, in the Isle of Ely, was not only sealed with his own seal (which county, and it be by a stranger, it doth hot avoid the deed, though if by the party himself it doth avoid it. Vid. H. 43 Eliz. Cam. Scace. the case of For and Markhum. Vid. Noy, fo. 112. n. 487. A. B. and C. are bound jointly and severally the seal of A. is torn off; in debt against B. he may plead non est factum. But if A. B. and C. covenant severally, and the seal of A. is torn off, it will not avoid against the others. 5 Rep. 23. Vide where by rasure of the deed the interest is lost. Where a thing may pass without deed, as in case of feoffment or lease, though the deed be rased, the interest continues. H. 10 Car. B. R. Crook, n. 8. Miller and Manwaring. But if lease by abbot and convent be interlined [And see 1 Selw. N. P. 517.]— (14) See further as to the antiquity of sealing deeds, in Seld. Jan. Angl. b. 2. c. 2. Mad. Form. Anglic. Dissert. p. 27. and Nichols. Engl. Histor. Libr. 2d ed. 241.-[Hargr. n. 4. 7 a.] (H) Or printed, for it may be in any language or character. 2 Bl. Com. 297.-[Ed.] (I) Wood or stone may be more durable, and linen less liable to erazures, 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 alterations; nothing so secure from alteration, that is at the same time so durable. 2 BI. Com. 297. All the matter and forms of a deed must be written before the sealing and delivery of it. For, if a man seals and delivers an empty piece of parchment or paper, though he, at the same time, gives directions that an agreement shall be written above, which is accordingly done, yet it will be void as a deed. Sheph. Touch. 54. Perk. s. 118. But an alteration, erazure, or interlineation, made in any part of the deed before it is delivered, will not hurt the deed; though in such cases it is right to mention it in the attestation. Sheph. Touch. 55. Paget v. Paget, 2 Cha. Rep. 187. A deed must have the regular stamps imposed on it by the several statutes for that purpose, otherwise it cannot be given in evidence. 2 Bl. Com. 297. Fearne's Post. Works, 111. A deed also must be read whenever any of the parties require it; if not, the deed will be void as to the party requiring it to be read. If a person can, he should read it himself; and if he be blind or illiterate, some other should read it for him. If it be read falsely, it will be void; at least for so much as was misread; unless it be agreed by collusion that the deed should be read falsely, on purpose to make it void: for, in such case, it will bind the fraudulent party, Manser's case, 2 Co. 3. Thouroughgood's case, Id. 9. 4 Cru. Dig. 27.[Ed.] E 2. Fines, 116. 2 R. 2. Det. 4. 21.) 9. F. N. B. (2 Rol. Abr. 7 a. Sealing. 36 a. 9 Co. 137. Noy, 50. 1 Raym. 197. Ow. 95. appeareth by these words, ego Edwinus gratiâ Dei totius Britannice telluris rex meum donum proprio sigillo confirmavi), but also the bishop of Winchester put to his seal, ego Elfwinus, Winton, ecclesiæ divinus speculator, proprium sigillum impressi. And the charter of king Offa, whereby he gave the Peter-pence, doth yet remain under seal. But no king of England before or since the Conquest sealed with any seal of arms before king R. 1., but the seal was the king sitting in a chair on the one side of the seal, and on horseback on the other side, in divers forms. And king R. 1. sealed with a seal of two lions, for the Conqueror of England bare two lions. And king John, in the right of Aquitaine (the duke whereof bare one lion), was the first that bare three lious, and made his scal accordingly, and all the kings since have followed him. Aud king E. 3, in anno 13. of his reign, did quarter the arms of France with his three lions, and took upon him the title of king of France, and all his successors have followed him therein (K). If a man deliver a writing sealed, to the party to whom it is made, as an escrow to be his deed upon certain conditions, &c. this is an absolute delivery of the deed, being made to the party himself; for the delivery is sufficient without speaking of any words (otherwise a man that is mute could not deliver a deed), and tradition is only requisite, and then when (K) See ant, vol. 1. p. 69. n. (C).—Sealing and delivery are essential to a deed; which, if delivered, may be a good deed, whether signed or not. But if it is to be executed under a power, with signature and scaling, both are required. Wright v. Wakeford, 17 Ves. 459. And in most cases signing is necessary; for it is enacted by the statute of frauds and perjuries, 29 Cha. 2. c. 3. that all leases, estates, interests of freehold or terms for years, or any uncertain interest in or out of lands or tenements, not put in writing and signed by the parties making them, or their agents authorised by writing, shall have no greater effect than as estates at will; except leases not exceeding three years from the making thereof, whereupon the rent reserved shall be two thirds at least of the full improved value of the thing demised: and no such estates or uncertain interests, not being copyhold, &c. shall be assigned, granted, or surrendered, unless by deed or note in writing, signed as aforesaid, or by act and operation in law. If another person seals the deed, yet, if the party delivers it, he thereby adopts the sealing, and, by a parity of reason, the signing also, and makes them both his own. Perk. s. 130. 2 Bl. Com. 307. And if the party scal the deed with any seal besides his own, or with a stiek, or any such like thing which does make a print, it is good. And, though it be a corporation that makes the deed, yet they may seal with any other seal besides their common seal. And if there be twenty to seal one deed, and they all scal upon one piece of wax and with one seal, yet if they make distinct and several prints, this is a sufficient sealing, and the deed is good enough. Sheph. Touch. 57. A person may appoint another to be his attorney to execute a deed for him. But, in such case, it must be executed in the name of the prin cipal. Frontin v. Small, Stra. 705.—[Ed.] And this the words are contrary to the act which is the delivery, the (15) In Mo. 697, there is an opinion of some judges in 39 Eliz. to the contrary; but the authorities since are with Lord Coke. See acc. Mo. 642. Noy, 6. Hob 245. 9 Co. 137. Sty. 251. 6 Mod. 213. [Hargr. n. 3. 35 a.] (16) See Dy. 167 b.-[Hargr. n. 4. 36 a.] (17) "Nota, if dean and chapter seal a deed, it is their deed immediately; but if at the same time they make letter of attorney to deliver it, this is not their deed till delivery. T. 21 Jac. B. R. rot. 652. Hayward and Fulcher." Hal. MSS. As to the former point, see acc. Dav. 44. 2 Leon. 97 and Cro. Eliz. 167, and as to the latter point the case cited by Lord Hale in W. Jo. 170. and Palm. 504, according ~[Fd.] (18) The obligor seals obligation, and throws it upon the table without other circumstances; this is not a delivery. But if he throws it towards the obligee, or if the obligee immediately takes it, and the obligor says nothing, it is a delivery. M. 29 and 30 Eliz. Rot. 636. Staunton and Chambers." Hal, MSS.-See S. C. in Ow. 95. Cro. Eliz. 122. Dy. ed. 1688. fo. 192 b. in marg. [Hargr. n. 6. 36 a. (223).] (19)" T. 3 Eliz. Gibson v. Tenant, Bendl. n. 140." Hal. MSS.--See S. C. in N. Bendl. 92. and Dy. 192. (L) In the delivery of a deed as an escrow, two things must be attended to.-1st. That the form of words used in the delivery of the deed, as an escrow, be apt and proper:-As "I deliver this to you as an escrow to deliver to the party as my deed, upon condition that he deliver to you the sum of 201. for me," &c. And 2dly. That the deed be delivered to a stranger, and not to the party himself, to whom it is made. Sheph. Touch. 58. 9 Co. 137 a. Where a deed is delivered as an escrow, it is of no force till the condition is performed; and, though the party to whom it is made should get it into his possession before the performance of the condition, yet he can derive no benefit from it. But if either of the parties should die before performance of the condition, and afterwards the condition is performed, the deed is good, and will take effect from the first delivery: for there was traditio inchoata in the life-time of the parties; et postea consummatio existens, by the performance of the condition. Sheph. Touch. 59 -[Ed.] (M) A deed may be delivered to the party himself to whom it is made, or to any other person, by sufficient authority from him; or it may be delivered to any stranger, for, and on behalf, and to the use of him to whom it is made, without authority. But if it be delivered to a stranger, without any such declaration (unless it be in case of a delivery as an escrow), it seems it will not be a sufficient delivery. Sheph. Touch. 57. 3 b. Consideration. (N) Note, that purchasers of lands, tenements, leases, and Deeds and conveyances hereditaments, for good and valuable consideration, shall may be avoided in case avoid all former fraudulent and covinous conveyances, estates, of fraud; (Post, 76 a.) 80. 82. 83. Twine's grants, charges, and limitations of uses, of or out of the same, (m) by a statute made since Littleton wrote (20), whereof you may plainly and plentifully read in my Reports, to which I will add this case. J. C. had a lease of certain lands for sixty years, if he lived so long, and forged a lease for ninety years absolutely, and he by indenture reciting the forged lease, for valuable consideration, bargained and sold the forged lease and all his interest in the land to R. G. It seemed to me that R. G. was no purchaser within the statute of 27 Elizabeth, for he contracted not for the true and lawful interest, for that was not known to him, for then perhaps he would not have dealt for it, and the visible and known term was forged; and although by general words the true in See further as to the delivery of [That circumstances alone with- livery, see Goodright v. Strapivan, 1 Cowp. 204.]—[Ed.} (20) For cases of fraudulent gifts before the 13 Eliz. c. 5, see Dy. 294 b. 295 a.-[Hargr. n. 9. 3 b.] A deed cannot be delivered twice; for if the first delivery has any effect, the second will be void. Thus if an infant, or a person under duress of imprisonment, delivers a deed (in which case the deed is not void, but only voidable), and after, the infant being of full age, or the person who was under duress being at large, do deliver the decd again, such second delivery is void. But where a feme covert seals and delivers a deed, and after her husband's death delivers it again, the second delivery is good, because the first was void. Sheph. Touch. 60. Goodright v. Strapham, 1 Cowp. 201. Ant. p. 219. n. (F). In the case of the king's letters patent, or of grants under the seal of the dutchy of Lancaster, the seal is matter of record, and therefore the deed needs no delivery. And the deeds of a corporation to which their seal is affixed, need not in general be delivered. Willis v. Jermin, Cro. Eliz. 167. 4 Cra. Dig. 31.-[Ed.] (N) By the common law, it is not absolutely necessary that any consideration should be expressed: for, although a verbal contract is not binding without a consideration, because words often pass from men lightly and inconsiderately, which may justify a suspicion of imprudence, and even of fraud; yet where an agreement is made by deed, which must necessarily be attended with more thought and deliberation, all suspicion of surprize or deceit is excluded; and therefore every deed in itself imports a consideration, though it be only the will of the maker, and there. fore shall never be said to be nudum pactum. Plowd. 308. 3 Burr. 1637. There are two kinds of considerations, civil and moral. The first, which is usually called a valuable consideration, is money, or any other thing that bears a known value. Marriage, also, forms a valuable consideration. The second, which is called a good consideration, arises from an implied obligation, such as that which subsists between a parent and child for children are considered, in equity, as creditors claiming a debt, founded upon the moral obligation of the parent to provide for his child. The love and afection which a man is naturally supposed to bear to his brothers and sisters, nephews and nieces, and heirs at law, and the desire of preferring his name and family, are also held to be good considerations. In like manner the payment of a man's debts is deemed a good consideration; since every man is under a moral obligation of satis fying his lawful creditors. Fonbl. Eq. b. 1. c. 5. 8. 1.—[Ed.] terest passed, notwithstanding he gave no valuable consideration nor contracted for it. And of this opinion were all the judges in Serjeants'-inu, in Fleet-street (o). (0) The deeds and conveyances affected by the statutes of 13 Eliz. c. 5. and 27 Eliz. c. 4. (made perpetual by 30 Eliz. c. 18. s. 3.) are, 1st. Deeds or conveyances, made with an express intention to defraud creditors or subsequent purchasers. 2d. Deeds or conveyances made without any consideration, usually called voluntary conveyances. 3d. Deeds or conveyances made for good, but not for valuable considerations, such as deeds made to provide for a man's wife, children, or relations. 4 Cru. Dig. 373. 1st. With respect to deeds made with intent to defraud creditors and purchasers, they are clearly void, whatever may be the consideration, and though the conveyance be made to the king. Magdalen College case, 11 Co. 66. And in Twine's case, 3 Co. 80), a leading case on this subject, the badges of fraud were, ist. The conveyance was of all the grantor's property, without exception of his apparel, or any thing of necessity. 24. The donor continued in possession. Et vid. Reid v. Blades, 5 Taunt. 212. Dewey v. Bayntun (Bart.), 6 East, 257. Sd. The conveyance was made in secret. 4th. There was a trust between the parties. Et vid. 11 Co. 74 a. Tarback v. Marbury, 2 Vern. 510. Though in conveyances of land, it seems, that, where the consideration is future, the donor's continuation in possession is not fraudulent; unless it be expressly proved that fraud was intended. Stone v. Grubbam, 1 Rol. Rep. 3. And where a debtor being sued by a creditor, pending the suit and before execution, being insolvent, executed an assignment of all his effects to trustees for the benefit of all his creditors, under which possession was immediately taken, it was held, that the assignment was not fraudulent within the 13 Eliz., although made to the intent to delay the plaintiff of his execution. Pickstock v. Lyster, 3 Maul. & S. 371. Et vid. Estwick v. Cailland, 5 T. R. 420. Anst. 381. Nunn v. Wilsmore, 8 T. R. 521. Holbird v. Anderson, 5 T. R. 235. Meux, q. t. v. Howell, 4 East. 1. With respect to the circumstances from which an intent to defraud a subsequent purchaser may be collected, the conveyance to such purchaser has been held sufficient to shew, that there was a fraudulent intent at the time when the first conveyance was made; and will therefore invalidate such first conveyance, as to the subsequent purchaser. And in order to bring a case within the statute 27 Eliz., it is not necessary that the person, who sells the land, should make the former conveyance. Burrell's case, 6 Co. 72. And though the subsequent purchaser should have notice of the preceding conveyance, yet he will be allowed to invalidate it. 5 Co. 60 b. Cowp. 711. Doe, d. Otley v. Manning, 9 East, 59. Hill v. The Bishop of Exeter, 2 Taunt. 69. Et vid. Pulvertoft v. Pulvertoft, 18 Ves. 84. Nietcalfe v. Pairertoft, 1 Ves. & B. 183, 184. Buckle v. Mitchell, 18 Ves. 100. 2d. With respect to voluntary conveyances, there is a difference, says Lord Hardwicke, 2 Ves. 101, between the stat. 13 Eliz. in favor of creditors, and that of the 27 Eliz. in favor of purchasers. For, on the 27 Eliz., every conveyance made, where there is a subsequent conveyance for a valuable consideration, though no fraud in that voluntary conveyance, nor the person making it at all indebted, yet the determinations are, that such mere voluntary conveyance is void at law, by the subsequent purchase for a valuable consideration. But the difference between that and the 13 Eliz. is this: if there is a voluntary conveyance of real estate, or chattel interest, by one not indebted at the time, though he afterwards becomes indebted, if that voluntary conveyance was for a child, and no particular evidence or badge of fraud to deceive or defraud subsequent creditors, that will be good; but if any mark of fraud, collusion, or intent to deceive subsequent creditors appears, that will make it void; otherwise not, but it will stand, though he afterwards becomes indebted. But I know of no case, on the 13 Eliz. says his lordship, where a man, indebted at the time, makes a voluntary conveyance to a child without consideration, and dies indebted, but that it shall be considered as part of his estate for the benefit of his creditors. Sd. With respect to conveyances made for good considerations, that is, in favor of a wife, children, or near relations, they are also within these statutes, and are considered as fraudulent against creditors (Apharry v. Bodingham, Cro. Eliz. 550.) and subsequent purchasers. Woodie's case, eited in Cro. Jac. 158. Goodright v. Moses, 2 Bl. Rep. 1019. Chapman v. Emery, Cowp. 279. And a voluntary settlement, though free from ac |