30. A deed must be in writing, and must be sealed and delivered, and possibly signed.
32. ESCROW - A deed may be delivered to a third person to be delivered to the other party to it on the performance of a condition, and in such case takes effect, on performance of the condition, from the date of the original delivery.
A deed must be in writing or printed on paper or parchment.11 It is often said to be executed, or made conclusive as between the parties, by being "signed, sealed, and delivered." At common law there seems to be some doubt whether signature to a deed is necessary,12 but it is, to say the least, safer to sign. That, however, which identifies a party to a deed with its execution is the presence of his seal; that which makes it operative, so far as he is concerned, is the fact of its delivery by him.13
The Seal There cannot be a deed or specialty without a seal.14 A seal is said by Lord Coke to be wax, with an impression,15 and no doubt anciently wax was the only substance used; but it is no longer essential. The impression may be made on a wafer attached to the instrument, or any other substance sufficiently tenacious to adhere, and capable of receiving an impression.16 It is therefore held sufficient if the impression is made on the paper itself on which the instrument is written. It need not be on a separate substance attached to the instrument.17
11 A deed is a writing or instrument, written on paper or parchment, sealed and delivered, to prove and testify the agreement of the parties whose deed It is to the things contained in the deed. * • * A deed cannot be written upon wood, leather, cloth, or the like, but only upon parchment or paper, for the writiug upon them can be least vitiated, altered, or corrupted." Shep. Touch. 50; Co. Litt. 35b. For the reason why a deed may not be written on wood, see Pol. Cont. 156. It may well be doubted whether the old rule requiring paper or parchment exclusively would be strictly followed to-day. See "Deeds," Dec. Dig. (Key-No.) §§ 26, 28; Cent. Dig. §§ 50-53.
12 Leake, Cont. 76; Cooch v. Goodman, 2 Q. B. 597; Cromwell v. Gruns-den, 2 Salk. 4G2; Jeffery v. Underwood, 1 Ark. 108. See "Deeds," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 89-94.
13 Anson, Cont. (4th Ed.) 46.
14 State v. Thompson, 49 Mo. 188; Vance v. Funk, 2 Scam. (111.) 263; Chilton v. People, 66 111. 501; Stabler v. Cowman, 7 Gill & J. (Md.) 284; Booth-bay v. Giles, 68 Mo. 160; Corbin v. Laswell, 48 Mo. App. 626. Where, however, a seal is omitted by mistake, a court of equity will reform the instru-
16 3 Coke. Inst. 160.
Some of the states have passed statutes allowing a scroll or scrawl made with the pen to be used in the place of a seal,18 and some courts have held, independent of statute, that a scroll is sufficient.19 At common law, however, this is not permissible; there must be an impression.20
At common law the mere affixing of the seal makes the instrument a contract under seal, but it has been held that, where a scroll is used, there must be some recital in the body of the instrument ment by supplying one, or will restrain the setting up of the want of one to defeat a recovery at law. Inhabitants of Bernards Tp. v. Stebbins, 109 U. S. 341, 3 Sup. Ct. 252, 27 L. Ed. 956; Wadsworth v. Wendell, 5 Johns. Ch. (N. Y.) 224; Town of Rutland v. Page, 24 Vt. 181; Inhabitants of Town of Montville v. Haughton, 7 Conn. 543; Sullivan v. Latimer, 38 S. C. 417, 17 S. E. 221. The matter appearing on an instrument must have been intended as a seal. The fact that it appears to be a seal, if it was not so intended, does not make the instrument a specialty. Clement v. Gunhouse, 5 Esp. 83; Blackwell v. Hamilton, 47 Ala. 470. As to presumption that there was a seal on an ancient deed on which no seal appears, see Reusens v. Staples (C. C.) 52 Fed. 91. See "Deeds," Dec. Dig. (Key-No.) § 46; Cent. Dig. §§ 99-103.
16 4 Kent, Comm. 452; Warren v. Lynch, 5 Johns. (N. Y.) 239; Tasker v. Bartlett, 5 Cush. (Mass.) 359; Beardsley v. Knight, 4 Vt 471. See "Seals," Dec. Dig. (Key-No.) § 3; Cent. Dig. §§ 4-6.
17 Pillow v. Roberts, 13 How. 472, 14 L. Ed. 228; Pierce v. Indseth, 106 U. S. 546, 1 Sup. Ct. 418, 27 L. Ed. 254; Hendee v. Pinkerton, 14 Allen (Mass.) 381. See "Seals," Dec. Dig. (Key-No.) §3; Cent. Dig. §§ 4-6.
18 Such is the case in California, Connecticut, Florida, Indiana, Illinois, Michigan, Minnesota, Missouri, New Jersey, New Mexico, Oregon, Virginia, West Virginia, and Wisconsin, and probably in other states. The word "seal," following the signature, has been held a sufficient compliance with such a statute, although not accompanied by any scrawl, stamp, impression, or mark. Jackson v. Security Mut. Life Ins. Co., 233 111. 161, 84 N. E. 198. See "Seals," Dec. Dig. (Key-No.) §§ 8-5; Cent. Dig. §§ 3-7.
19 HACKER's APPEAL, 121 Pa. 192, 15 Atl. 500, 1 L. R. A. 861, Throckmorton, Cas. Contracts, 40; Lee v. Adkins, Minor (Ala.) 187; Bertrand v. Byrd, 4 Ark. 195; Hastings v. Vaughn, 5 Cal. 315; Trasher v. Everhart, 3 Gill & J. (Md.) 234; Underwood v. Dollins, 47 Mo. 259; Groner v. Smith, 49 Mo. 318. Whether a mark or character shall be held to be a seal depends on the intention of the executant as shown by the paper. Jacksonville, M. P. Ry. & Nav. Co. v. Hooper, 160 U. S. 514, 16 Sup. Ct. 379, 40 L. Ed. 515; HACKER's APPEAL, supra. See "Seals," Dec. Dig. (Key-No.) §§ 3-5; Cent. Dig. §§ 3-7.
20 Warren v. Lynch, supra; Hendee v. Pinkerton, supra; Bates v. Boston & N. Y. C. R. Co., 10 Allen (Mass.) 251; Perrine v. Cheeseman, 11 N. J. Law, recognizing it as a seal.21 The authorities on this point are not in accord.28
One seal may do for any number of parties signing a deed if each one adopts it as his own, but it is always safer to have a seal for each signature.23