Title by Deed

A PURCHASE, in the ordinary and popular acceptation of the term, is the transmission of property from one person to another, by their voluntary act and agreement, founded on a valuable consideration. But, in judgment of law, it is the acquisition of land by any lawful act of the party, in contradistinction to acquisition by operation of law; and it includes title by deed, title by matter of record, and title by devise.¹

1. Of the history of the law of alienation.

The alienation of property is among the earliest suggestions flowing from its existence. The capacity to dispose of it becomes material to the purposes of social life, as soon as property is rendered secure and valuable, in the progress of nations from a state of turbulence and rudeness, to order and refinement. It is stated, by very respectable authorities, that, in the time of the Anglo-Saxons, lands were alienable either by deed or by will. When conveyed by charter or deed, they were distinguished by the name of boc, or bookland, and the other kind of land called folcland, was held and conveyed without writing.² But this notion of the free disposition of the land among the Saxons, must be understood in a very qualified sense; and the jus disponendi, even at that day, was subject, as it is in every country, and in every stage of society, to the restraints and modifications suggested by convenience, and dictated by civil institutions.³ It was reserved, however, to the feudal policy, to impose restraints upon the enjoyment and circulation of landed property, to an extent then unprecedented in the annals of Europe. There were checks (though they were comparatively inconsiderable) in favor of the heir, upon the alienation of land among the Jews, Greeks, and Romans. The feudal restrictions were vastly heavier, and founded on different policy. They arose partly in favor of the heir of the tenant, for the law of feuds would not allow the vassal to alien the paternal feud, even with the consent of the lord, without the consent of the heirs of the paternal line.⁴ But the restraint arose principally from favor to the lord of the fee. He was considered as having a strong interest in the abilities and fidelity of his vassal, and it was deemed to be a great hardship, and repugnant to the entire genius of the feudal system, to allow the land which the chieftain has given to one family, to pass, without his consent, into the possession of another, and to be transferred, perhaps to an enemy, or at least to a person not well qualified to perform the feudal engagements. The restrictions were perfectly in accordance with the doctrine of feuds, and proper and expedient in reference to that system, and to that system only. The whole feudal establishment proved itself eventually to be inconsistent with a civilized and pacific state of society; and wherever freedom, commerce, and the arts, penetrated and shed their benign influence, the feudal fabric was gradually undermined, and all its proud and stately columns were successively prostrated in the dust.

The history of the gradual decline of the feudal restraints in England, upon alienation, from the reign of Henry I., when the earliest innovations were made upon them, down to the final recovery of the full and free exercise of the right of disposition, forms an interesting view of the progress of society. Some notice of this subject was taken in a former volume;⁵ and though the feudal restrictions upon alienations never followed the emigration of our ancestors across the Atlantic, we may well pause a moment upon this ancient learning. Our sympathies are naturally excited, in a review of the subtle contrivances, the resolute struggles, the undiverted perseverance, and final and complete success, which accompanied the efforts of the English nation, in the early periods of their history, to break down the stern policy of feudal despotism, and to regain the use and control of their own property, as being one of the inherent rights of mankind.

The first step taken in mitigation of the rigors of the law of feuds, and in favor of voluntary alienations, was the countenance given to the practice of subinfeudations. They were calculated to elude the restraint upon alienation, and consisted in carving out portions of the fief to be held of the vassal by the same tenure with which he held of the chief lord of the fee. The alienation prohibited by the feudal law, all over Europe, was the substitution of a new feudatory in the place of the old one; but subinfeudation was a feoffment by the tenant to hold ‘of himself. The purchaser became his vassal, and the vendor still continued liable to the chief lord for all the feudal obligations. Subinfeudations were encouraged by the subordinate feudatories, because they contributed to their owl power and independence; but they were found to be injurious to the fruits of tenure, such as reliefs, marriage, and wardships, belonging to the paramount lords. Alienation first became prevalent in cities and boroughs, where the title to lands and houses was chiefly allodial, and where the genius of commerce dictated and impelled a more free and liberal circulation of property. The crusades had an indirect, but powerful influence upon alienation of land, as those who engaged in that wild and romantic enterprise, ceased to place any value upon the inheritances which they were obliged to leave behind them. A law of Henry I. relaxed the restraint as to purchased lands, while it retained it as to those which were ancestral.⁶ In the time of Glanville,⁷ considerable relaxations as to the disposition of real property acquired by purchase, were tolerated. Conditional fees had been introduced by the policy of individuals to impose further restraints upon alienation; but the tendency of public opinion in its favor, induced the courts of justice, which had partaken of the same’ spirit, to give to conditional fees a construction inconsistent with their original intention. This led the feudal aristocracy to procure from Parliament the statute de donis of 13 Edw. I., which was intended to check the judicial construction, that had, in a great degree, discharged the conditional fee from the limitation imposed by the grant. Under that statute, fees conditional were changed into estates tail; and the contrivance which was afterwards resorted to, and adopted by the courts, to elude the entailment, and defeat the policy of the statute, by means of the fiction of a common recovery, has been already alluded to in a former part of the present volume.⁸

The statute of Quia. Emptores, 18 Edw. I., finally and permanently established the free right of alienation by the sub-vassal, without the lord’s consent; but it broke down subinfeudations, which had already been checked by Magna Carta; and it declared, that the grantee should not hold the land of his immediate feoffor, but of the chief lord of the fee, of whom the grantor himself held it. The importance of that provision to the feudal lord, was the cause of its being enacted ad instantiam magnatum regni, as the statute itself admits. The power of involuntary alienation, by rendering the land answerable by attachment for debt, was created by the statute of West. 2. 13 Edw. I. ch. 18. which granted the elegit; and by the statutes merchant or staple, of 13 Edw. I., and 27 Edw. III., which gave the extent. These provisions were called for by the growing commercial spirit of the nation. To these we may add the statute of 1 Edw. III. taking away the forfeiture on alienation by the king’s tenants in capite, and substituting a reasonable fine in its place; (and which Lord Coke says,⁹ was only an exposition of Magna Carta;) and this gives us a condensed view of the progress of the common law right of alienation from a state of servitude to freedom.¹⁰

2. Of the purchase of pretended titles.

Every citizen of the United States is capable of taking, and holding lands, by descent, devise, or purchase; and every person capable of holding lands, except idiots, persons of unsound mind, and infants, and seized of, or entitled to any estate or interest in land, may alien the same at his pleasure, under the regulations prescribed by law. This is a principle declared in the New York Revised Statutes,¹¹ and I presume it is the general doctrine throughout the United States. In no other part of the civilized world is land made such an article of commerce, and of such incessant circulation; though it is said, that, in England, houses and lands have now become common means of investment, and circulate from owner to owner with unusual and startling rapidity. There is one check to the power of alienation of a right or interest in land, taken from the statute of 32 Hen. VIII. c. 9. against selling pretended titles; and a pretended title, within the purview of the common law, is where one person lays claim to land, of which another is in possession, holding adversely to the claim.¹² Every grant of land, except as a release, is void, if, at the time, the lands are in the actual possession of another person, claiming under a title adverse to that of the grantor. This principle has always been received as settled law in New York, and it has been recently incorporated into the revised statutes.¹³ But, even in such a case, the claimant is allowed, by the statute, to execute a valid mortgage of the lands, which has preference from the time of recording it, over subsequent judgments and mortgages, and binds the lands from the time of recovering possession.

The ancient policy which prohibited the sale of pretended titles, and held a conveyance to a third person of lands held adversely at the time, to be an act of maintenance, was founded upon a state of society which does not exist in this country. A right of entry was not assignable at common law, because, said Lord Coke,¹⁴ “under color thereof pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed.” The repeated statutes which were passed in the reigns of Edw. I. and Edw. III. against champerty and maintenance, arose from the embarrassments which attended the administration of justice in those turbulent times, from the dangerous influence and oppression of men in power. The statute of 32 Hen. VIII. imposed a forfeiture upon the seller of the whole value of the lands sold, and the same penalty upon the buyer also, if he purchased knowingly. This severe statute was re-enacted literally in New York, in 1788; but the penal provisions are altered by the New York Revised Statutes,¹⁵ which have abolished the forfeiture, but made it a misdemeanor for any person to buy or sell, or make or take a promise or covenant to convey, unless the grantor, or those by whom he claims, shall have been in possession of the land, or of the reversion or remainder thereof, or of the rents and profits, for the space of a year preceding. The provision does not apply to a. mortgage of the lands, nor to a release of the same to the person in lawful possession.. It seems to be unnecessarily harsh; but it is to be observed, that it was a principle conformable to the whole genius and policy of the common law, that the grantor, in a conveyance of land, (unless in the case of a mere release to the party in possession,) should have in him, at the time, a right of possession. A feoffment was void without livery of seizin; and without possession a man could not make livery of seizin.¹⁶ This principle is not peculiar to the English law. It was a fundamental doctrine of the law of feuds on the continent of Europe. No feud could be created or transferred without investiture, or putting the tenant into possession; and delivery of possession is still requisite, in Holland and Germany, to the transfer of real property.¹⁷ It seems to be the general sense and usage of mankind, that the transfer of real property should not be valid, unless the grantor has capacity, as well as the intention, to deliver possession. Sir William Blackstone says,¹⁸ that it prevails in the code of “all well governed nations,” for possession is an essential part of title and dominion over property. As the conveyance in such a case is a mere nullity, and has no operation, the title continues in the grantor, so as to enable him to maintain an ejectment upon it; and the void deed cannot be set up by a third person to the prejudice of his title.¹⁹ But as between the parties to the deed, it might operate by way of estoppel, and bar the grantor. This is the language of the old authorities, even as to a deed founded on champerty or maintenance.²⁰

The doctrine, that a conveyance by a party out of possession, and with an adverse possession against him, is void, prevails equally in Connecticut, Massachusetts, Vermont, Maryland, Virginia, North Carolina, and probably in most of the other states.²¹ There are other states, such as Pennsylvania, Kentucky, and Tennessee, in which the doctrine does not exist, and a conveyance by a disseizee would seem to be good, and pass to the third person all his right of possession, and of property, whatever it might be.²² I am not particularly informed as to the rule on this point in other parts of the Union.

It is the settled doctrine in England, and in New York, and probably in most of the other states, that the purchase of land pending a suit concerning it, is champerty, and the purchase is void, if made with a knowledge of the suit, and not in consummation of a previous bargain.²³ The statutes of West. 1. c. 25. West. 2. c. 49. and particularly the statute of 28 Edw. I. c. 11. established that doctrine, which became incorporated into the common law. The substance of those statutes was made part of the statute law of New York in 1788; and by the New York Revised Statutes,²⁴ to take a conveyance of land, or of any interest therein, from a person not in possession, while the land is the subject of controversy by suit, and with knowledge of the suit, and that the grantor was not in possession, is declared to be a misdemeanor. The same principle that would render the purchase of a pretended title void, would apply, with much greater force, to a purchase while the title to the land was in actual litigation.

3. Of the due execution of a deed.

A deed, duly executed, must be written on paper or parchment, and signed, sealed, delivered, and recorded.

(1.) The deed must be in writing, and signed, and sealed.

The law requires more form and solemnity in the conveyance of land, than in that of chattels. This arises from the greater dignity of the freehold in the eye of the ancient law, and from the light and transitory nature of personal property, which eaters much more deeply into commerce, and requires the utmost facility in its incessant circulation. In the early periods of English history, the conveyance of land was usually without writing, but it was accompanied with overt acts, equivalent, in point of formality and certainty, to deeds. As knowledge increased, conveyance by writing became more prevalent; and, finally, by the statute of frauds and perjuries of 29 Charles II., alt estates and interests in lands, (except leases not exceeding three years,) created, granted, or assigned, by livery and seizin only, or by parol, and not in writing, and signed by the party, were declared to have no greater force or effect than estates at will only. This statute provision has been either expressly adopted, or assumed as law, throughout the United States. In New York it has been enacted, in every successive revision of the statutes; and in the last revision it is made to apply, not only to every estate and interest in lands, but to every trust or power concerning the same; and the exception as to leases is confined to leases for a term not exceeding one year. But the provision does not apply to trusts by implication, or operation of law.²⁵ Nor is a parol promise to pay for the improvements made upon land, within the statute of frauds. They are not an interest in land, but only another name for work and labor bestowed upon it.²⁶ So, a sale for a crop of growing potatoes, has been held not to be such a contract for the sale of any interest in land, as to require a writing, within the statute of frauds.²⁷

The common law went further than this provision in the statute of frauds. It is deemed essential, in the English law, to the conveyance of land, that it should be by writing sealed and delivered; and though a corporation can do almost any business of a commercial nature by a resolution without seal, yet the conveyance of land is not one of the excepted cases, and they cannot convey, or mortgage, but under their corporate seal.²⁸ Deeds were originally called charters, and from the time of the Norman conquest, the charter was authenticated by affixing to it a seal of wax, and it derived its validity from the seal. The statute law in South Carolina, requires the conveyance of all freehold estates in land, to be by writing, signed, sealed, and delivered, or, in other words, to be conveyed by deed. The statute law in Virginia, and Kentucky, requires the same thing as to all estates or interests in land exceeding a term of five years; and the statute law in Rhode Island, as to estates exceeding a term for one year. There is probably similar statute provisions in other states; and where there is not, the general rule of the common law, that the conveyance of land must be by deed, is adopted and followed, with the exception of Louisiana, where sales of land are made by writing only, and must be registered in the office of a notary.²⁹ It had been adjudged in New York, in 1814,³⁰ that a conveyance of a freehold estate must be by deed, or a writing under seal, and the decision was founded upon the doctrine of the English common law. The revised statutes³¹ have adopted this rule, by declaring, that every grant in fee, or of a freehold estate, must be subscribed and sealed by the grantor, or his lawful agent, and either duly acknowledged previous to its delivery, or be attested by at least one witness.

A deed is an instrument in writing, upon paper or parchment, between parties able to contract, and duly sealed and delivered.³² As a seal is requisite to a deed, the definition, and the character of it, are well settled. The common law intended, by a seal, an impression upon wax or wafer, or some other tenacious substance capable of being impressed. According to Lord Coke, a seal is wax, with an impression-sigillum est cera impressa, quia cera sine impressione non est sigillum.³³ The common law definition of a seal, and the use of rings and signets for that purpose, and by way of signature and authenticity, is corroborated by the usages and records of all antiquity, sacred and profane.³⁴ 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 upon wax has been disused to such an extent, as to induce the courts to allow 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.³⁵ This is destroying the character of seals, and it is, in effect, abolishing them, and with them the definition of a deed or specialty, and all distinction between writings sealed, and writings not sealed. Whether land should be conveyed by writing, signed by the grantor only, or by writing signed, sealed and delivered by the grantor, may be a proper subject for municipal regulation. But to abolish the use of seals by the substitute of a flourish of the pen, and yet continue to call the instrument which has such a substitute a deed, or writing, sealed and delivered, within the purview of the common or the statute law of the land, seems to be a misnomer, and is of much more questionable import. In New York the seal retains its original definition and character³⁶

(2.) It must be delivered.

Delivery is another incident essential to the due execution of a deed, for it takes effect only from the delivery. The deed may be delivered to the party himself to whom it is made, or to any other person authorized by him to receive it. It may be delivered to a stranger as an escrow, which means a conditional delivery to the stranger, to be kept by him until certain conditions be performed, and then to be delivered over to the grantee. Until the condition be performed, and the deed delivered over, the estate does not pass, but remains in the grantor.³⁷ Generally, an escrow takes effect from the second delivery, and is to be considered as the deed of the party from that time; but this general rule does not apply when justice requires a resort to fiction. The relation back to the first delivery, so as to give the deed effect from that time, is allowed in cases of necessity, to avoid injury to the operation of the deed, from events happening between the first and second delivery. Thus, if the grantor was a feme sole when she executed the deed, and she married before it ceased to be an escrow by the second delivery, the relation back to the time when she was sole, is necessary to render the deed valid. But if the fiction be not required for any such purpose, it is not admitted, and the deed operates according to the truth of the case, from the second delivery. It is a general principle of law, that in all cases where it becomes necessary, for the purposes of justice, that the true time when any legal proceeding took place should be ascertained, the fiction of law introduced for the sake of justice, is not to prevail against the fact.³⁸ It has further been held, that if the grantor deliver a deed as his deed, to a third person, to be delivered over to the grantee on some future event, as on the arrival of the grantee at York, it is a valid deed from the beginning, and the third person is but a trustee of it for the grantee.³⁹ The delivery to the third person, for and on behalf of the grantee, may amount to a valid delivery. Thus, where A. delivered a deed to B., to deliver over to C., as his deed, and R. did so, and though C. refused to accept of it, the deed was held_ to ensure from the first delivery; because the deed was not delivered. as an escrow, or upon, a condition to be performed.⁴⁰ So, if a deed be duly delivered in the first instance, it will operate though the grantee suffer it to remain in the custody of the grantor. If both parties be present, and the usual formalities of execution take place, and the contract is, to all appearance, consummated, without any conditions or qualifications annexed, it is still a complete and valid deed, notwithstanding it be left in the custody of the grantor.⁴¹

(3.) It must be recorded.

By the statute law of every state in the Union, all deeds and conveyances of land, except certain chattel interests, are required to be recorded, upon previous acknowledgment or proof. If not recorded, they are good only as against the grantor and his heirs, and they are void as to subsequent bona fade purchasers, whose deeds shall be first recorded. The English law prevails, generally, in this country, that notice of the deed by the subsequent purchaser, previous to his purchase, will countervail the effect of the registry, and destroy his pretension as a bona fade purchaser.⁴² In several of the states, as, for instance, in New Hampshire, Vermont, Rhode Island, Connecticut, Georgia, Ohio, Illinois, and Indiana, two witnesses are required to the execution of the deed, and probably the deed would not be deemed sufficiently authenticated for recording, without the signature of the two witnesses. In Delaware, Tennessee, and South Carolina, two witnesses are necessary, when the deed is to be proved by witnesses. There is, likewise, a fixed period of time allowed, in many of the states, for to have the deed recorded, as, for instance, two years in North Carolina; one year in Delaware, Illinois, Tennessee, and Georgia; eight months in Virginia; six months in Pennsylvania, Maryland, South Carolina, and Ohio; three months in Missouri, and Mississippi; and fifteen days in New Jersey. In the other states, where there is no prescribed time, the deed must be recorded in a reasonable time, and when a deed is recorded within the reasonable, or the limited time, I presume it has relation back to the time of execution, and takes effect according to the priority of the time of execution, and not according to the priority of the registry.

The mode of proof, and of the coercion of the attendance of witnesses for that purpose, and the officers vested with authority to take and certify the proof, and the effect of such proof, all depend upon the local laws of the several states. In all the states, (except in Louisiana, where the law is peculiar on this subject,) femes covert are competent to convey real estate, with the consent of their husbands, who are to be parties to the conveyance; and the wife is to be separately and privately examined by the officer, respecting the free execution of the deed. This private examination seems to be required in all the states, with the exception of Massachusetts, Connecticut, and perhaps one or two others. The New York Revised Statutes⁴³ contain minute and specific directions on the subject of the proof and recording of conveyances of real estate. They make no provision as to the number of witnesses, or as to the time of recording; and, consequently, the common law rule applies, (and the statute expressly assumes it,} that one witness is sufficient, or the acknowledgment before the officer without any witness. The deed must be recorded with due diligence, and deeds are to be recorded in the order, and as of the time, when delivered to the clerk for that purpose, and they have effect according to the priority of the registry. The statute leaves the question of notice to supply the place of registry, as the rule existed before in our own, and in the English law,⁴⁴ and it applies to conveyances of chattels real, as well as of freehold estates, except leases for a term not exceeding three years. In Maryland, as in New York, attesting witnesses are not requisite to the validity of a deed.⁴⁵

In England, the practice of recording deeds is of local, and very limited application. It applies to the Bedford level tract, to the ridings of Yorkshire, and to the county of Middlesex. During the period of the English commonwealth, there was an effort to establish county register& for recording deeds throughout England. The ancient policy was in favor of the entire publicity of transfers of land, by the fine of record, the livery under the feoffment, the enrolment of a bargain and sale, and the attornment under the grant. But the ingenuity of conveyancers, and the general. and natural disposition to withdraw settlements, and the domestic arrangements, from the idle curiosity of the public, have defeated, that policy. In Scotland; the old feudal forms are retained, and the sasine, or symbolical tradition of the land, in practice. The “earth and stone,” or “clap and happer,” or “net and coble,” the emblematical symbols of the field, or mill, or fishery, are delivered, with due solemnity, to the proxy of the purchaser. The instrument of sasine reciting the transaction, is recorded, and that constitutes the title.⁴⁶

4. Of the component parts of a deed.

A deed consists of the names of the parties, the consideration for which the land was sold, the description of the subject granted, the quantity of interest conveyed, and, lastly, the conditions, reservations, and covenants, if any there be.

(1.) Of the form of the deed.

” The Saxons, in their deeds,” said Sir Henry Spelman,⁴⁷ “observed no set form, but used honest and perspicuous words to express the thing intended with all brevity, yet not wanting the essential parts of a deed, as the names of the donor and donee, the consideration, the certainty of the thing given, the limitation of the estate, the reservation, and the names of the witnesses.” This brevity and perspicuity so much commended by Spelman, has become quite lost, or but dimly perceived in the cumbersome forms and precedents of the English system of conveyancing. The Saxons commenced their deeds according to the form of a modern bond, or of an indenture in the first person, as given by Littleton,⁴⁸ by a general appeal to all men to whom the contract might be presented, for its truth and authenticity.⁴⁹ Deeds were afterwards executed by both parties; and though that practice is now generally disused, the present English forms of conveyance, and the forms in New York, and in those parts of the United States which adhere the most to the English practice, still retain the language of a mutual contract, executed by both parties; and each of them is supposed, by the fiction implied in the more formal parts of the indenture, to retain a copy. But the essential parts of a conveyance of land in fee, are very brief, and require but few words. If a deed of feoffment, according to Lord Coke,⁵⁰ be without premises, habendum, tenendum, reddendum, clause of warranty, etc. it is still a good deed, if it gives lands to another, and to his heirs, without saying more, provided it be sealed and delivered, and be accompanied with livery.

In the United States, generally, the form of a conveyance is very simple. It is usually by bargain and sale, and possession passes ex vi facti, under the authority of the local statute, without the necessity of livery of seizin, or reference to the statute of uses. In Delaware, Virginia, and Kentucky, deeds operate under the statute of uses, as they did in New York prior to the 1st of January, 1830, when the revised statutes went into operation. In Massachusetts, under the provincial act of 9 Wm. III. a simple deed of conveyance, without any particular form, and without livery of seizin, was made effectual, provided the intention was clearly declared.⁵¹

I apprehend that a deed would be perfectly competent, in any part of the United States, to convey the fee, if it was to be to the following effect: 1 I, A. B., in consideration of one dollar to me paid by C. D., do bargain and sell (or, in New York, grant) to C. D., and his heirs, (in New York, Virginia, etc. the words, and his heirs, may be omitted,) the lot of land, (describe it,) witness my hand and seal, etc.” But persons usually attach so much importance to the solemnity of forms, which bespeak care and reflection, and they feel such deep solicitude in matters that concern their valuable interests, to make L assurance double sure,” that, generally, in important cases, the purchaser would rather be at the expense of exchanging a paper of such insignificance of appearance, for a conveyance surrounded by the usual outworks, and securing respect, and checking attacks, by the formality of its manner, the prolixity of its provisions, and the usual redundancy of its language. The English practice, and the New York practice, down to the present time, have been in conformity with the opinion of Lord Coke, that it is not advisable to depart from the formal and orderly parts of a deed, which have been well considered and settled.

(2.) Of the parties.

The parties must be competent to contract, and truly and sufficiently described. A grant to the people of a county has been held to be void, because the statute enabling supervisors of counties to take conveyances of land, applied only to conveyances made to them by their official name.⁵² So, a grant to the inhabitants of a town not incorporated, is void.⁵³ But conveyances are good, in many cases, when made to a grantee by a certain designation, without the mention of either the Christian or surname, as to the wife of I. S., or to his eldest son, for id est cerium, quod potest reddi certum.⁵⁴

(3.) Of the consideration.

A consideration is generally held to be essential to a good and absolute deed; though a gift, or voluntary conveyance, will be effectual as between the parties, and is only liable to be questioned in certain cases, when the rights of creditors, and subsequent purchasers, are concerned. The consideration must be good or valuable, and not partaking of any thing immoral, illegal, or fraudulent. It is a universal rule, that it is unlawful to contract to do that which it is unlawful to do; and every deed, and every contract, are equally void, whether they be made in violation of a law which is malum in se, or only malum prohibitum.⁵⁵ A good consideration is founded upon natural love and affection between near relations by blood; but a valuable one is founded on something deemed valuable, as money, goods, services, or marriage. There are some deeds, to the validity of which a consideration need not have been stated. It was not required, at common law, in feoffments, fines, and leases, in consideration of the fealty and homage incident to every such conveyance. The law raised a consideration from the tenure itself, and the solemnity of the act of conveyance. The necessity of a consideration came from the courts of equity, where it was held requisite to raise a use; and when uses were introduced at law, the courts of law adopted the same idea, and held, that a consideration was necessary to the validity of a deed of bargain and sale. It has been long the settled law, that a consideration expressed or proved, was necessary to give effect to a modern conveyance to uses.⁵⁶ The consideration need not be expressed in the deed, but it must exist. It is sufficient if the deed purports to be for money received, or value received, without mentioning the certainty of the sum; and if any sum is mentioned, the smallest in amount or value will be sufficient to raise the use.⁵⁷ The consideration has become a matter of form, in respect to the validity of the deed in the first instance, in a court of law; and if the deed be brought in question, the consideration may be averred in pleading, and supported by proof. The receipt of the consideration money is usually mentioned in the deed; and Mr. Preston says;⁵⁸ that if the receipt of it be not endorsed upon the deed, it will, in transactions of a modern date, be presumptive evidence that the purchase money has not been paid, and impose upon a future purchaser the necessity of proving payment, in order to rebut the presumption of an equitable lien in favor of the seller for his purchase money. I have no idea that the courts of justice in this country would tolerate any such presumption in the first instance, from the mere circumstance of the omission to endorse on the deed the receipt of payment, for that ceremony is not now the American practice.

(4.) The description of the premises.

In the description of the land conveyed, the rule is, that known and fixed monuments control courses and distances. So, the certainty of metes and bounds will include, and pass all the lands within them, though they vary from the given quantity expressed in the deed. The least certain and material parts of the description, must yield to those which are the most certain and material, if they cannot be reconciled; though, in construing deeds, the courts will give effect to every part of the description, if practicable. Where natural and ascertained objects are wanting, and the course and distance cannot be reconciled, the one or the other may be preferred, according to circumstances. If there be nothing to control the course and distance, the line is run by the needle.⁵⁹ The mention of quantity of acres, after a certain description of the subject by metes and bounds, or by other known specification, is but matter of description, and does not amount to any covenant, or afford ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the given amount.⁶⁰ Whenever it appears by the definite boundaries, or by words of qualification, as “more or less,” or as “containing by estimation,” or the like, that the statement of the quantity of acres in the deed, is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case.⁶¹ So, according to the maxim of Lord Bacon, falsa demonstratio non nocet, when the thing itself is certainly described; as in the instance of the farm called A., now in the occupation of B.; here the farm is designated correctly as farm A.; but the demonstration would be false if C., and not B., was the occupier, and yet it would not vitiate the grant.⁶²

(5.) Of the habendum.

This part of the deed was originally used to determine the interest granted, or to lessen, enlarge, explain, or qualify the premises. But it cannot perform the office of divesting an estate already vested by the deed, for it is void if it be repugnant to the estate granted.⁶³ It has degenerated into a mere useless form, and the premises now contain the specification of the estate granted, and the deed becomes effectual without any habendum. If, however, the premises should be merely descriptive, and no estate be mentioned, then the habendum becomes efficient to declare the intention, and it will rebut any implication arising from the silence of the premises.

(6.) Of the usual covenants in a deed.

The ancient warranty was a covenant real, whereby the grantor of an estate of freehold, and his heirs, were bound to warrant the title; and either upon voucher, or by judgment in a writ of warrantia chartae, to yield other lands to the value of those from which there had been an eviction by a paramount title.⁶⁴ The heir of the warrantor was bound only on condition that he had, as assets, other lands of equal value by descent. Lineal warranty was where the heir derived title to the land warranted, either from or through the ancestor who made the warranty; and collateral warranty was where the heir’s title was not derived from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by descent from or through the ancestor; and it imposed upon him the obligation of giving the warrantee other lands, in case of eviction, provided he had assets.⁶⁵ These collateral warranties were deemed a great grievance, and, after successive efforts to be relieved from them, the statute of 4 Anne, c. 16. made void, not only all warranties by any tenant for life, as against any person in reversion or remainder, but as against the heir, all collateral warranties, by any ancestor who had no estate of inheritance in possession. The statute of Anne was re-enacted in New York in 1788; but the revised statutes⁶⁶ have made a more thorough reformation, for they have abolished both lineal and collateral warranties, with all their incidents, and made heirs and devisees answerable only upon the covenant or agreement of the ancestor or testator, to the extent of the lands descended or devised. The statutes have further declared,⁶⁷ that no covenants shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not. These provisions leave the indemnity of the purchaser for failure of title, in cases free from fraud, to rest upon the express covenants in the deed; and they have wisely reduced the law on this head to certainty and precision, and dismissed all the learning of warranties which abounds in the old books, and was distinguished for its abstruseness and subtle distinctions. It occupies a very large space in the commentaries of Lord Coke, and in the notes of Mr. Butler; and there was no part of the English law to which the ancient writers had more frequent recourse, to explain and illustrate their legal doctrines. Lord Coke declared “the learning of warranties to be one of the most curious and cunning learnings of the law;” but it is now admitted, by Mr. Butler, to have become, even in England, in most respects, a matter of speculation, rather than of use. The ancient remedy on the warrantia chart&,, had, however, this valuable incident, when the warrantor was vouched, and judgment passed against the tenant, the latter obtained judgment simultaneously against the warrantor, to recover other lands of equal value. This was the consolidation of the original action with the remedy over, without the expense and delay of a cross suit.

The remedy by the ancient warranty never had, as I presume, any existence in any part of the United States, and personal covenants have superseded the old warranty. The remedy is by an action of covenant against the grantor, or his real or personal representatives, to recover a compensation in damages for the land lost upon eviction for failure of title. The usual personal covenants inserted in a conveyance of the fee, are, 1. That the grantor is lawfully seized; 2. That lie has good right to convey; 3. That the land is free from encumbrances; 4. That the grantee shall quietly enjoy; 5. That the grantor will warrant and defend the title against all lawful claims. The covenants of seizin, and of a right to convey, and against encumbrances, are personal covenants, not running with the land, or passing to the assignee; for, if not true, there is a breach of them as soon as the deed is executed, and they become choses in action, which are not technically assignable. But the covenant of warranty, and the covenant for quiet enjoyment, are prospective, and an eviction is necessary to constitute a breach of them. They are, therefore. in the nature of real covenants, and they run with the land conveyed, and descend to heirs, and vest JP assignees.⁶⁸ The distinction taken in the American cases is supported by the general current of English authorities, which assume the principle that covenant does not lie by an assignee, for a breach done before his time.⁶⁹ On the other hand, it was recently decided by the K. B., in Kingdom v. Mottle,⁷⁰ that a covenant of seizin did run with the land, and the assignee might sue, on the ground that want of seizin is a continual breach. The reason assigned for this last decision is too refined to be sound. The, breach is single, entire, and perfect, in the first instance. I1 is. however, to be regretted, that the technical scruple that a chose in action was not assignable, does necessarily prevent the assignee from availing himself of any, or all of the covenants. He is the most interested, and the most f t person to claim the indemnity secured by them, for the compensation belongs to him, as the last purchaser, and the first sufferer.

The general covenant that the grantor will warrant and defend the title, (and which is usually the concluding and sweeping covenant in a deed,) is also a personal covenant, binding on the personal representatives of the covenantor; and it is not a covenant real, in the sense of the old feudal law, confining the remedy to voucher, or warrantia charge. The ancient remedy is inadequate and inexpedient, and has become entirely obsolete.⁷¹ The distinction between the covenants that are in gross, and covenants that run with the land, would seem to rest principally on this ground, that to make a. covenant run with the land, there must be a privity of estate between the covenanting parties. A covenant to pay rent, or to produce. title deeds, or for renewal, are covenants of the latter character, and they run with the land.⁷² All covenants of title run with the land, with the exception of those that are broken before the land passes.

In Pennsylvania, Delaware, and Missouri, it is declared by statute, that the words grant, bargain and sell, shall amount to a covenant that the grantor was seized of an estate in fee, freed from encumbrances done or suffered by him, and for quiet enjoyment as against his acts. But, in Grantz v. Ewalt,⁷³ it was adjudged, that those words in the Pennsylvania statute of 1715, (and the decision will equally apply to the same statutory language in the other two states,) did not amount to a general warranty, but merely to a covenant that the grantor had not done any act, nor created any encumbrance, whereby the estate might be defeated. Upon this construction, the words of the statute are divested of all dangerous tendency, and they amount to no more than did the provision in the English statute of 6 Anne, c. 35. sec. 30. upon the same words. It may not be very inconvenient that those granting words should imply a covenant against the secret acts of the grantor; but beyond that point there is great danger of imposition upon the ignorant, and the unwary, if any covenant be implied, that it is not stipulated in clear and precise terms. In New York, it was decided, in Frost v. Raymond,⁷⁴ and proved by an examination of the authorities, that the words “grant, bargain, sell, alien and confirm,” did not imply a covenant of title in a conveyance in fee, though the word “grant,” or the word “demise,” would imply a covenant of title in a lease for years. The word “give,” it was also shown, in that case, would amount to an implied warranty during the life of the feoffor.⁷⁵ But this doctrine, though deemed sound and applicable in those states which continue to be governed on this point by the common law, has ceased to have any operation in New York, under the provisions in the revised statutes. In North Carolina, the words ‘1 give, grant, bargain, sell,” etc. have been denied to imply any warranty of title⁷⁶ and this is the conclusion which sound policy would dictate. To imply covenants of warranty from the granting words in a deed, is making those words operate very often as a trap to the unwary.

The measure of damages, in actions on these personal covenants, is regulated, in some degree, by the rule on the ancient warranty. At common law, upon voucher, or upon the writ of warrantia charge, the demandant recovered of the warrantor, or heir, other lands, of equal value with the lands from which the feoffee was evicted. The value was computed as it existed when the warranty was made, so that, though the land had afterwards became of increased value, by the discovery of a mine, or by buildings, or otherwise, yet the warrantor was not to render in value, according to the then state of things, but as the land was when he made the warranty.⁷⁷ And when personal covenants were introduced, as a substitute for the remedy on the voucher and warranty, the established measure of compensation was not varied or affected. The buyer on the covenant of seizin, recovers back the consideration money and interest, and no more. The interest is to countervail the claim for mesne profits, to which the grantee is liable, and is, and ought to be, commensurate in point of time with the legal claim to mesne profits. The grantor has no concern with the subsequent rise or fall of the land by accidental circumstances, or with the beneficial improvements made by the purchaser, who cannot recover any damages, either for the improvements or the increased value.⁷⁸ But on the covenant of warranty, the measure of damages, in Massachusetts, is the value of the land at the time of eviction.⁷⁹ This may greatly exceed the value and the price of the land, at the time of the sale; but the rule was adopted in the first settlement of the country, when the value of the land consisted chiefly in the improvements made by the occupants; and if the warranty would not have secured to them the value of those improvements, it would not have been of much benefit to them. In other states, the measure of damages, on a total failure of title, even on the covenant of warranty, is the value of the land at the execution of the deed, and the evidence of that value is the consideration money, with interest and costs.⁸⁰ If the subsisting encumbrances absorb the value of the land, and the quiet enjoyment be disturbed by eviction by paramount title, the measure of damages is the same as under the covenants of seizin and of warranty. The uniform rule is, to allow the consideration money, with interest and costs, and no more. If the encumbrance has not been extinguished by the purchaser, and there has been no eviction under it, he will recover only nominal damages, inasmuch as it is uncertain whether he would ever be disturbed.⁸¹ If, however, the grantor had notice to remove the encumbrance, and refused, equity would, undoubtedly, compel him to raise it, and decree a general performance of a covenant of indemnity, though it sounds only in damages.⁸² The ultimate extent of the vendor’s responsibility, under all or any of the usual covenants in his deed, is the purchase money, with interest; and this I presume to be the prevalent rule throughout the United States.

If the eviction be only of a part of the land purchased, the damages to be recovered under the covenant of seizin, are a rateable part of the original price, and they are to bear the same ratio to the whole consideration, that the value of the land, to which the title has failed, bears to the value of the whole tract. The contract is not rescinded, so as to entitle the vendee to recover back the whole consideration money, but only to the amount of the relative value of the part lost.⁸³ The French code adopts the same rule of compensation on eviction of part only of the subject; but it allows the whole sale to be vacated, if the eviction be of such consequence, relatively to the whole purchase, that the purchase would not have been made without the part lost. This has the appearance of refined justice; but the prosecution of such an inquiry must, in many cases, be very difficult and delusive; and this part of the provision, allowing the contract to be rescinded, has been dropped in Louisiana.⁸⁴ The measure of compensation for a deficiency in the quantity of land, in the case of a sale by the acre, unattended with special circumstances, has been assumed, in some cases, to be the average, and not the relative value.⁸⁵ But in cases of eviction of a specific part, justice evidently requires that the relative, instead of the average value, be taken as the rule of computation; for though the part lost may not be one tenth part of the quantity of land purchased, it may be nine tenths of the value of the whole; or it may be one half part of the land sold, and yet it may be the rocky or the barren part of the farm, and not one hundredth part of the value of the remaining moiety.

The French law, prior to the revolution, gave to the buyer a compensation for improvements, and the increased value of the land, in addition to the restitution of the price, with interest and costs. It was founded on the Roman law; but the provision was destitute of fixedness and precision.⁸⁶ The Code Napoleon⁸⁷ has rescued the rule from the guidance of loose and arbitrary discretion, and reduced it to certainty. It allows the purchaser on eviction to recover the price, and the mesne profits which he is obliged to pay to the owner, and his costs and expenses, and the increased value of the lands, independent of the acts of the purchaser, and also the beneficial improvements which he may have made. The rule in the French law does not operate with equality and justice. The vendor is bound to pay for the increased value of the land, and yet if it happens to be diminished in value at the time of eviction, the vendor is not less bound to refund the purchase money. The Civil Code of Louisiana⁸⁸ has closely copied the general provisions of the French code on the subject, but it has omitted this inequality of regulation, and it likewise confines the recovery to the price, mesne profits, costs, and special damages, (if any,) and beneficial improvements. Both the French and Louisianian codes make the seller pay even for the embellishments of luxury expended on the premises, if he sold in bad faith, knowing his title to be unsound.

The rule of the common law, and the one most prevalent in this country, appears to be moderate, just, and safe. The French rule in the code is manifestly unjust. I cannot invent a case, said Lord Kames,⁸⁹ where the maxim cujus commodum ejus debet esse incommodum, is more directly applicable. If the price, at the time of the eviction, be the standard for the buyer, it ought to be equally so for the seller. The hardship of the doctrine, that the seller must respond, in every case, for the value of the land at the time of eviction, and for useful improvements, consists in this, that no man could ever know the extent of his obligation. He could not venture to sell to a wealthy or enterprising purchaser, or in the vicinity of a growing town, without the chance of absolute ruin.⁹⁰ The want of title in cases of good faith, is usually a matter of mutual error, for the buyer investigates the title when he buys; and the English rule would appear to be the most practicable, certain, and benign in its application.

The manner of assigning breaches on these various covenants, depends upon the character of the covenant. In the covenant of seizin, it is sufficient to allege the breach by negativing the words of the covenant. But the covenants for quiet enjoyment, and of general warranty, re quire the assignment of a breach by a specific ouster, or eviction by a paramount legal title. So, in the case of the covenant against encumbrances, the encumbrance must be specifically stated. These are some of the general and universally acknowledged rules, that apply to the subject; and it has been held not to be necessary to allege an ouster, or eviction, on the breach of a covenant against encumbrances, but only that it is a valid and subsisting encumbrance. A paramount title, in a third person, is an encumbrance within the meaning of the covenant.⁹¹

5. Of the several species of conveyances.

Sir William Blackstone⁹² divides conveyances into two kinds, viz. conveyances at common law, and conveyances which receive their force and efficacy from the statute of uses. The first class is again subdivided into original or primary, and derivative or secondary conveyances.

As some of those conveyances have grown obsolete, and as the principles which constitute and govern all of them, have been already discussed, it will not be requisite to do more than take a cursory view of those which are the most in practice, and of the incidental learning connected with the subject.

(1.) Of feoffment.

Feoffment was the mode of conveyance in the earliest periods of the common law. It signified, originally, the grant of a feud or fee; but it became, in time, to signify the grant of a free inheritance in fee, respect being had to the perpetuity of the estate granted, rather than to the feudal tenure. Nothing can be more concise, and more perfect in its parts, than the ancient charter of feoffment.

It resembles the short and plain forms now commonly used in the New England states. The feoffment was likewise accompanied with actual delivery of possession of the land, termed livery of seizin. The notoriety and solemnity of the livery were well adapted to the simplicity of unlettered ages, by making known the change of owners, and preventing all obscurity and dispute concerning the title. The actual livery was performed by entry of the feoffor upon the land, with the charter of feoffment; and delivering a clod, turf, or twig, or the latch of the door, in the name of seizin of all the lands contained in the deed. The ceremony was performed in the presence of the peers, or freeholders, of the neighborhood, who were the vassals of the feudal lord, and who might afterwards be called on to attest the certainty of the livery of seizin.⁹³

The charter itself was not requisite. The fee was capable of being conveyed by mere livery in the presence of the vicinage. The livery was equivalent to the feudal investiture of the inheritance, for it created that seizin which became an inflexible doctrine of the common law. And if the feoffor was not able to enter upon the land, livery was made within view of it, with a direction to the feoffee to enter; and if actual entry afterwards, in the time of the feoffor, took place, it was a good livery in law.⁹⁴

The feoffment operated upon the possession without any regard to the estate or interest of the feoffor; and though he had no more than a naked, or even tortious possession, yet, if the feoffor had possession, the feoffment had the transcendent efficacy of passing a fee by reason of the livery, and of working an actual disseizin of the freehold. It cleared away all defeasible titles, divested estates, destroyed contingent remainders, extinguished powers, and barred the feoffor from all future right, and possibility of right, to the land, and vested an estate of freehold in the feoffee.⁹⁵ In this respect the feoffment differed essentially from a fine, or common recovery, for the conusor in the fine, and the tenant to the praecipe, must be seized of the freehold, or of an estate in fee, or for life, otherwise the fine or recovery may be avoided.

The doctrine of disseizin forms a curious and instructive part of the old feudal law of tenures, and it has led, in modern times, to very extended and profound discussions. This branch of the work would probably appear, to the student, to be left too incomplete, without taking some notice of this ancient and vexatious learning.

Seizin was the completion of the feudal investiture, by which the tenant was admitted into the feud, and performed the rites of homage and fealty. He then became actual tenant of the freehold. Disseizin was the violent termination of this seizin, by the actual ouster of the feudal tenant, and the usurpation of his place and relation. It was a notorious and tortious act on the part of the disseizor, by which he put himself in the place of the disseizee, and in the character of tenant of the freehold, made his appearance at the lords’ court. A wrongful entry was not a disseizin, provided the rightful owner continued in possession; for it was a just and reasonable intendment of law, that when two persons were at the same time in possession, the seizin was adjudged to be in the rightful owner.⁹⁶ It was the ouster, or tortious expulsion of the true owner from the possession, that produced the disseizin. There was a distinction between dispossession and disseizin, for disseizin was a wrong to the freehold, and made in defiance and contempt of the true owner. It was an open, exclusive, adverse entry and expulsion, whereas dispossession might be by right, or by wrong; and it was necessary to look at the intention, in order to determine the character of the act. These general principles seem to be admitted in all the more modern authorities, on each side of the Atlantic, on this subject, whatever difference of opinion there may be in the application of them.⁹⁷

There were two kinds of disseizin, the one was a disseizin in fact, and the other a disseizin by construction of law. The latter could be created in many ways, without forcible and violent ouster, as by feoffment with livery, by entry under an adverse lease, or by a common recovery, or by levying a fine. Whether the disseizin was effected by actual expulsion, or by a constructive ouster, the legal consequences upon the title were the same.⁹⁸ But the doctrine of disseizin by election, depending upon the pleasure of the true and injured owner, and whether, for the sake of the remedy, he would, or would not, elect to consider himself disseized, has been extensively applied to these disseizins in construction of law. It has led to a great deal of discussion and controversy between the adherents to the ancient and rigid doctrines of disseizin, and the advocates for the melioration of that theory in its adaption to the state of modern manners and improvements since the fall of the feudal system. The question on the efficacy of the ancient feoffment came into view, and led to enlarged discussion, in Taylor v. Horde;⁹⁹ and the writings of the distinguished property lawyers, such as Butler and Preston, have shed a great deal of light and learning upon the character and operation of that celebrated species of conveyance.

By the doctrine of the feudal law, no person who had less than a life estate was deemed a freeholder, and none but a freeholder was considered to have possession of the land. The possession of a termor for years, was the possession of the freeholder under whom he held, and who was exposed to lose the possession by the negligence or treachery of the termor. If he left it vacant, or permitted himself to be disseized, or undertook to alien it, or claimed a fee, or affirmed the title to be in a stranger, the freeholder lost the possession, which was nearly synonymous to freehold. The possession of the termor at will, or at sufferance, was equally the possession of the freeholder. Persons in possession, without any right as tenants by disseizin, deforcement, abatement, and intrusion, could also transfer the possession and freehold by livery of seizin. The livery operated upon the possession, and it could not be made by a person in possession without transferring the freehold. The transfer was of itself a feoffment, and no writing was required, and no greater estate in the feoffor than mere possession. When charters were introduced, it was the livery, and not the charter, that worked the transfer of the fee. The feoffment was originally required to be made in the presence of the peers of the lord’s court, (pares curie,) and the entry of the feoffee was recorded in the lord’s court. When this solemnity and notoriety were disused by the time of Henry II. the transfer lost much of its dignity and certainty.

The feoffment was supposed, by the Court of K. B., in Atkyns v. Horde, to have lost, on account of that change, much also of its peculiar efficacy. But Mr. Butler does not accede to the accuracy of this opinion. The ancient efficacy of the feoffment was, that it created an estate of freehold, though none was in the feoffor at the time of the feoffment; and there is nothing, he observes, in the history of the English law, to show when and how it was lost. The doctrine in the time of Bracton was, that every person who had possession, however slender or naked that possession might be, as that of a tenant at will, or by sufferance, or a guardian; or however tortious his possession might be, as the possession of a disseizor or intruder, he was, nevertheless, considered to be in the seizin of the fee, and to be enabled by feoffment and livery to transfer it to another. The disseizor became a good tenant to the demandant’s privcipe, and a freeholder de facto, in spite of the true owner.¹⁰⁰ The same efficacy, by means of the possession in the feoffor, and livery of seizin to the feoffee, was imputed to the feoffment by Perkins, Coke, and others;¹⁰¹ and the ancient doctrine, as it existed when Bracton wrote, has been continued to modern times, giving to the feoffment its primitive operation. Disseizins by elections are those acts which are no disseizins unless the party chooses to consider them to be such, and which are not in themselves disseizins. The disseizin which is produced by a feoffment, answers every description of an actual disseizin. Whether the feoffment be made by a person seized of an estate of freehold, or by a person having only the possession, as a tenant for years, at will, or by sufferance, the effect was the same. The disseizin gave to the feoffee against every person but the disseizee, an immediate estate of freehold, with its rights and incidents; so that the wife of the feoffee became entitled to dower, and the husband to his curtesy, and a descent to the heir of the feoffee tolled the entry of the disseizee. The tenant was expelled from his fee, and the feoffee usurped his feudal place and relation, and he became a good tenant to the prcecipe of every demandant, though the true owner’s right of entry upon him was not taken away, The uniform language of the books which treat of disseizins by feoffments, considers the feoffee as having an immediate estate of freehold, and as having acquired a seizin in fee as against strangers. The disseizin produced by a feoffment, meant, according to Mr. Butler and Mr. Preston, an actual disseizin, and not one at the election of the party; and the feoffee continued vested with the freehold until the disseizee, by entry, or action, regained his possession, and of that right of entry, or of action, he might be barred in process of time.

The character and effect of a feoffment and disseizin, according to the ancient and strict notion of them, were ably illustrated and supported by Mr. Knowler, in his argument in Taylor v. Horde.¹⁰² The doctrine of the court in that case, was somewhat different from the view which Mr. Butler has given of the operation of a feoffment. The opinion of Lord Mansfield has been much questioned by him, and others, who deny that the efficacy of the feoffment is lost; and they insist that it does still vest an actual estate of freehold by disseizin. According to Mr. Preston,¹⁰³ whenever a person enters into land without title, and claims a fee, he is a disseizor, and acquires a seizin in fee. So, if a termor makes a feoffment, he gains a freehold by disseizin. The great struggle which commenced with Lord Mansfield, between the courts at Westminster, and the adherents of the ancient consequences of a feoffment, is, that the latter are tenacious of holding the feoffment to its primitive operation, by which it passed a fee by wrong, as well as by right, and disseized the true owner; whilst the former are disposed to check, as much as possible, the application of the unreasonable and noxious qualities of the feoffment, and confine its operation within the bounds of truth and justice. The doctrine in Taylor v. Horde was, that if a tenant for life or years should make a feoffment, the lessor might still elect whether he would consider himself disseized; and that, except in the special instance of a fine with proclamations, there was no case in which the true owner might not elect to be deemed not disseized, provided his entry was not taken away. In Jerritt v. Weare,¹⁰⁴ the Court of Exchequer were disposed to follow the spirit of the case of Taylor v. Horde, and disarm the doctrine of disseizin of much of its ancient severity, and formidable application. They adopted the doctrine in Blunden v. Baugh,¹⁰⁵ that whether there was an actual disseizin or not, depended upon the character and intention of the act. A lease for years to a stranger, by a tenant at will rendering rent, was held, in the case from Croke, to be a disseizin only at the election of the owner; and, in the Exchequer case, a lease by a stranger and entry tinder it by the lessee, was put upon the same ground. Every disseizin is a trespass, but every trespass is not a disseizin. A manifest intention to oust the real owner must clearly appear, in order to raise an act which may be only a trespass to the bad eminence of disseizin.

In Goodright v. Forester,¹⁰⁶ the court censured and condemned the-ancient doctrine of estates arising by disseizin, as they did also in Jerritt v. Weare. The opinion of Lord Mansfield received still more decided confirmation, by the unanimous decision of the K. B. in Doe v. Lynes.¹⁰⁷ It was there held, that a feoffment did not operate to destroy a term for years, when made without the consent of those who had the term. Lord Tenterden declared, that there was so much good sense in the doctrine of Lord Mansfield, that he should be sorry to find any ground for saying it could not be supported. A feoffment by a stranger would be void, if there was a lessee for years in possession, who did not assent to it. To attempt to turn a term into a wrongful fee, with all its inequitable consequences, by the old exploded notion of the transcendent operation of a feoffment, was pointedly condemned. The nature of a feoffment and disseizin were said to be materially altered since Littleton wrote. The good sense and liberal views which dictated the decision in Taylor v. Horde, seem to have finally prevailed in Westminster Hall, notwithstanding the strong opposition which that case met with from the profession. The courts will no longer endure the old and exploded theory of disseizin. They now require something more than mere feoffments and leases, to work, in every case, the absolute and perilous consequences of a disseizin in fact. Those acts are a disseizin only at the election of the real owner, and are not, in all cases, absolutely and inevitably so. It will depend upon the intention of the party, or it will require overt acts that leave no room to inquire about intention, and which amount to actual ouster in spite of the real owner. Mr. Preston, in his discussion of titles under seizin and disseizin,¹⁰⁸ adheres to the strict doctrines of the old common law, and he severely condemns the judgment in Taylor v. Horde, as “confounding the principles of law, and producing a system of error.” Mr. Butler, also, though more temperately, and more ably, attacks its conclusions, while he admits the case was decided with much consideration, and infinite ability. These writers serve, at least, to show the spirit of free inquiry, and of uncompromising hostility to innovation, which animates the English property lawyers, and impels them to stand watchful and intrepid sentinels over the ancient jurisprudence. While we admire their independence and patriotism, we think that it would be deeply to be lamented, if we were obliged, at this day, to call into practice the extravagant consequences of disseizin, after feudal tenures, and the assurance by feoffment itself, and the reasons which gave such tremendous effects to disseizin, had all become lost, and buried in oblivion.¹⁰⁹

In this country, the decision of Lord Mansfield has not met with entire approbation, and the late and learned Chief Justice Parsons declared, that his lordship had not gone to the bottom of the matter, and had puzzled himself unnecessarily. I cannot acquiesce in the accuracy of this censure, and it appears to me, that Lord Mansfield gave to a disseizin, founded on the operation of a feoffment, as much efficacy as it was entitled to receive, in this improved age of the English law.¹¹⁰

The conveyance by feoffment, with livery of seizin, has long since become obsolete in England; and though it has been, in this country, a lawful mode of conveyance, it has not been used in practice. Our conveyances have been either under the statute of uses, or short deeds of conveyance, in the nature of the ancient feoffment, and made effectual, on being duly recorded, without the ceremony of livery. The New York Revised Statutes¹¹¹ have expressly abolished the mode of conveying lands by feoffment, with livery of seizin.

(2.) Of Grant.

This was a common law conveyance, and applied to incorporeal hereditaments, such as reversions, rents, and services; and not being of a tangible nature, and existing only in contemplation of law, they could not be conveyed by livery of seizin. Such rights were said to lie in grant, and not in livery, and they were conveyed simply by deed.¹¹² There was this essential difference between a feoffment and a grant; while the former carried destruction in its course, by operating upon the possession, without any regard to the estate or interest of the feoffor, the latter benignly operated only upon the estate or interest which the grantor had in the thing granted, and could lawfully convey.¹¹³ Feoffment and grant were the two great disposing powers of transfer of land, in the primitive ages of the English law.

To render the grant effectual, the common law required the consent of the tenant of the land out of which the rent, or other incorporeal interest, proceeded; and this consent was called attornment. It arose from the intimate alliance between the lord and vassal existing under the feudal tenures. The tenant could not alien the feud without the consent of the lord, nor the lord part with his seignory without the consent of the tenant.¹¹⁴ The necessity of the attornment was partly avoided by the modern modes of conveyance under the statute of uses; and it was, at last, completely removed by the statutes of 4 and 5 Anne, c. 16., and 11 George II. c. 19.; and it has been equally abolished in these United States. The New York Revised Statutes¹¹⁵ have rendered the attornment of the tenant unnecessary to the validity of a conveyance by his landlord; though, to render him responsible to the grantee, for rent or otherwise, he must have notice of the grant. Nor will the attornment of a tenant to a stranger be valid, unless made with his landlord’s consent, or in consequence of a judgment or decree, or to a mortgagee after forfeiture of the mortgage.¹¹⁶

The New York Revised Statutes have given to deeds of conveyance of the inheritance or freehold, the denomination of grants; and though deeds of bargain and sale, and of lease and release, may continue to be used, they are to be deemed grants. That instrument of conveyance is made competent to convey all the estate and interest of the grantor, which he could lawfully convey; and it passes no greater or other interest.¹¹⁷ I should presume that, under the New York statute, the operative word of conveyance is grant, and that no other word would be held essential; but as other modes of conveyance operate equally as grants, any words, showing the intention of the parties to convey, would be sufficient.¹¹⁸ The policy of changing, by statute, the denomination of the usual deeds of conveyance of the freehold, and resolving them all into grants, may admit of some question. In the English law, and in the law of this country, grants are understood to apply specifically to the conveyance of incorporeal hereditaments, and to letters patent from government. This is the usual understanding and application of the term, with the profession, and with the country at large. Doctor Tucker said, that the word grant, when applied to lands in Virginia, was synonymous with patent. There would seem to have been no necessity that the name of the ordinary and familiar conveyance, by bargain and sale, should have been dismissed and absorbed in the word grant. The deed of bargain and sale might have been declared to operate, as heretofore, by a transfer of the title, without the necessity of the theory of raising a use.¹¹⁹

It will be unnecessary to enlarge upon conveyances, of a special or secondary character, as exchange, partition, confirmation, surrender, assignment, and defiance; and without dwelling upon them, I shall proceed, at once, to the consideration of conveyances, which owe their introduction, and universal practice, to the statute of uses.

(3) Of the covenant to stand seized to uses.

By this conveyance, a person seized of lands, covenants that he will stand seized of them to the use of another. On executing the covenant, the other party becomes seized of the use of the land, according to the terms of the use; and the statute of uses immediately operates and annexes the possession to the use. This conveyance has the same force and effect as a common deed of bargain and sale; but the great distinction between them is, that the former can only be made use of among near domestic relations, for it must be founded on the consideration of blood or marriage. No use can be raised for any purpose by this conveyance, in favor of a person not within the influence of the domestic consideration; and it makes no difference whether the grantee, if he be a stranger to the consideration, is to take on his own account, or as a mere trustee for some of the family connections. He is equally incompetent to take.¹²⁰ The existence of another consideration, in addition to that of blood or marriage, will not impede the operation of the deed. Covenants to stand seized are a species of conveyance no longer in use in England.¹²¹ They owe their efficacy to the statute of uses, and in New York the statute of uses is abolished, and no mention is made of this conveyance. But if the covenant to stand seized be founded on the requisite consideration, it would be good as a grant, for there could be no dispute about the intention; and it is admitted, that in a covenant to stand seized, any words will do, that sufficiently indicate the intention.¹²² It is a principle of law, that if the form of the conveyance be an inadequate mode of giving effect to the intention, according to the letter of the instrument, it is to be construed under the assumption of another character, so as to give it effect. Cum quod ago non valet ut ago, valeat quantum valere potest. The qualification to this rule is, that the instrument must partake of the essential qualities of the deed assumed, and, therefore, no instrument can operate as a feoffment without livery, either shown or presumed; nor as a grant, unless the subject lies in grant; (as it now does in New York in all cases of the freehold;) nor as a covenant to stand seized, without the consideration of blood or marriage;
nor as a bargain and sale, without a valuable consideration. If there be no lease to make the deed good as a release, and no livery to make it good as a feoffment, it may operate as a bargain and sale, or covenant to stand seized, provided there be the requisite consideration.¹²³

(4.) Of lease and release.

This is the usual mode of conveyance in England, because it does not require the trouble of enrolment. It was contrived by Sergeant Moore, at the request of Lord Norris, for a particular case, and to avoid the unpleasant notoriety of livery, or attornment. It was the mode universally in practice in New York until the year 1788. The revision of the statute law of the state at that period, which re-enacted all the English statute law deemed proper and applicable, and which repealed the British statutes in force in New York while it was a colony, removed all apprehension of the necessity of enrolment of deeds of bargain and sale, and left that short, plain, and excellent mode of conveyance, to its free operation. The consequence was, that the conveyance by lease and release, which required two deeds or instruments, instead of one, fell immediately into total disuse, and will never be revived.

The lease and release, when used as a conveyance of the fee, have the joint operation of a single conveyance. The first step was to create a small estate, as a lease for a year, and vest possession of it in the grantee. In a lease at common law, actual entry was requisite to vest the possession, and enable the lessee to receive a release of the reversion. To avoid the necessity of actual entry, the lesser estate was created by a bargain and sale under the statute of uses, and founded on a nominal pecuniary consideration. The bargain raised the use, and the statute immediately annexed the possession to the use; and the lessee, being thus in possession by the operation of the statute, was enabled to receive a release of the reversion. The release was a conveyance at common law, and operated by way of enlargement of the estate; and thus, by the operation of the lease, by way of bargain and sale, under the statute of uses, and by the operation of the release at common law, the title was conveyed.

If the lease is not to operate, under the statute of uses, as a bargain and sale, then a consideration is not necessary. As the statute of enrolments of 27 Hen. VIII. did not apply to terms for years, the bargain and sale for a pecuniary consideration placed the lessee before entry, in the same situation with the lessee at common law after entry; and it was early settled, that the estate of such a lessee was capable of enlargement by release, and that such a mode of conveyance was effectual.¹²⁴

(5.) Of bargain and sale.

This is the mode of conveyance most prevalent in the United States, and it was in universal use in New York, prior to the introduction of the grant, by the revised statutes, in January, 1830. A bargain and sale was originally a contract for the conveyance of land for a valuable consideration; and though the land itself would not pass without livery, the contract was sufficient to raise a use, which the bargainor was bound in equity to perform.¹²⁵ Nothing can be more liberal than the rules of law, as to the words requisite to create a bargain and sale.¹²⁶ There must be a valuable consideration, and then any words that will raise a use, will amount to a bargain and sale. After the statute of uses was passed, a use was raised, and vested in the bargainee, by means of the bargain, and the statute annexed the possession to the use; and by that operation the bargain became at once a sale, and complete transfer of the title.¹²⁷

A use may be raised by feoffment, as well as by bargain and sale, or covenant to stand seized to uses. But when raised by feoffment, the feoffor, having parted with the legal estate, cannot stand seized to the use of the feoffee, as the bargainor and covenantor, who retain in themselves the legal estate, do in the other cases.¹²⁸ Bargain and sale, and covenant to stand seized, are conveyances not adapted to settlements, and this is the reason why they have been so generally disused in England. They both require a consideration, and they could not be applied to the case of persons not in esse, for they had not contributed to the consideration when the conveyance was made.¹²⁹ The conveyance by lease and release, has become the universal mode by which property is conveyed in England, whether by way of sale, mortgage, or settlement. It has this attractive circumstance attending it. It has not the inconvenience and notoriety of livery which is requisite in feoffment, or of enrolment which is required by the statute of 27 Hen. VIII. in a bargain and sale. It is, therefore, a mode of conveyance well adapted to that secrecy which best accords with the feelings connected with family settlements.

(6.) Of fines and recoveries.

Alienation by matter of record, as by fines and common recoveries, make a distinguished figure in the English code of the common assurances of the kingdom. But they have not been in much use in any part of this country, and probably were never adopted, or known in practice, in most of the states. The conveyance by common recovery was in use in Delaware and Maryland before the American revolution, but it must have become obsolete with the disuse of estates tail. Fines have been occasionally levied in New York for the sake of barring claims; but by the New York Revised Statutes,¹³⁰ fines and common recoveries are now abolished. The English real property commissioners, in their report to Parliament, in 1829, proposed the abolition of fines and recoveries in England, and to enable tenants in tail to convey the fee, and to dock the entail by deed to be enrolled in the Court of Chancery. They proposed, likewise, to allow femes covert to part with their estates and interests in law, or equity, by deed, with the concurrence of their husbands, and after a private examination by an officer. The entire disuse of common recoveries followed, of course, in this country, upon the abolition of estates tail; for such a fictitious suit, considered as a conveyance of land in cases allowed by law, is most inconvenient and absurd. And since the acknowledged and long settled competency of a tenant in tail, to convey and bar the issue in tail, a more simple and easy mode of conveyance might well be contrived by the sages of the law in England. The conveyance by fine, as a matter of record transacted in one of the highest courts of common law, has some great advantages, and merits a more serious consideration. Its force and effect are very great, and great solemnity is required in passing it, because, said the statute of 1S Edw. I., “the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those who are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied, unless they put in their claim within a year and a day.” This bar by non-claim was, afterwards, by the statute of 4 Hen. VII. extended to five years. These statutes, and this bar of non-claim after five years, were re-enacted in New York, and continued in force until January, 1830; and common recoveries were equally recognized by statute as a valid mode of conveyance, down to this last-mentioned period. Such a formal, solemn, and public mode of conveyance, with such a short bar by non-claim, was resorted to in special cases, where title had become complex, and the property was of great value, and costly improvements were in immediate contemplation. Doctor Tucker recommended a resort to it, in Virginia, on this very account.¹³¹ In our large cities, where land is exceedingly valuable, and large, durable, and very expensive erections are constantly making, it may be desirable that the certainty of the title should he established within a shorter period than twenty years. This is the only objection that could possibly be made to the abolition of the conveyance by fine; for, as to the notoriety of the transfer, it is by no means equal to the record of a deed in the county where the lands are situated, and where all persons are accustomed to resort, as being the only place for information. In point of fact, the levying a fine, with us, may be considered to partake of secrecy, for it never attracts public observation. But when we come to consider the state and condition of real property in England, where conveyances are not, in general, required to be recorded, the formal proposition to abolish fines was not to have been anticipated. The circumstances of the two countries are totally different. I should suppose that there must be great veneration justly due to a system of transfer by record, which has exhausted so much cultivation, which has been transmitted down, in constant activity, from distant ages, and on whose foundations the best part of English real property reposes. In Sergeant Wilson’s Essay on Fines, they are said to be “the strength of almost every man’s inheritance.” Such a great innovation may have an unpropitious influence upon the character, policy, and stability, of the English jurisprudence. It will, however, favorably abridge the labors of students, and make great havoc in an English law library. Volume after volume, filled with essays and adjudications upon fines and recoveries, will be consigned to oblivion.¹³²