The ancient English deeds were the original deeds of feofment, gift, grant, lease, exchange and partition; and the derivative deeds of release, confirmation, surrender, assignment and defeasance.
We will examine the ancient English deeds very briefly in this section. The time was when the subject of conveyancing was much more complex than at present as our times tend towards simplicity in such matters. Deeds were formerly executed upon parchment, sometimes in counterpart and sometimes singly. Where the deed was executed by both parties the counterparts were written upon the same parchment, which was then cut into in an irregular fashion so that each part fitted the other and this form of deed Was called an "indenture" because of the indented edge, and we have this word until this day in legal instruments which begin, "This Indenture Wit-nesseth," although the indenting itself has long since been abolished. Deeds which were not indented were called "deeds poll," meaning that they were "polled" or "shaved" even and not indented.
Old English deeds may be known as those which are original and those which are derivative or which in some way affect an original deed.
A deed of feofment was the deed whereby the fee was conveyed in praesenti and to this deed livery of seisin was a necessary ceremony to convey the fee; that is, there must be a present delivery of possession in order to transfer the fee. Land could not be enfeofed .to take effect in the future. The fee could only be transferred by present transfer accomplished by actual livery of seisin.
The deed of grant was a deed whereby all estates were granted of which in the nature of the case there could be no livery of seisin, as in the case of a grant of the reversion. But if livery of seisin could be had the deed must be one of feofment with livery of seisin.
A deed of lease was a deed for life or years or any less time than the lessor had in the premises; and was the same deed in effect that our lease is today.
A deed of exchange is a deed whereby the parties mutually exchange estates.
A deed of partition is a deed whereby both tenants or tenants in common or copartners agree to divide the land among them each taking a distinct part.
Coming now to the derivative deeds, the first of these was the release whereby one who has an estate in land releases his estate to the other as where the owner of the fee releases his interest to the tenant. In order for a release to operate at common law it was necessary for the relessee to be in possession.
The deed of confirmation was a deed given to correct or confirm a former deed.
A deed of surrender was the opposite of a release, as where one who has an estate surrenders it to another who has a higher estate.
An assignment was a transfer of a right in an estate as where one lessee assigns his estate to another.
A deed of defeasance was a collateral deed containing conditions upon the performance of which an estate might be defeated
Under the statute of uses, conveyancers, invented forms of deeds which took effect by the language of that statute because they created uses which that statute executed and in this manner livery of seisin was avoided in the conveyance of a fee. They were the deeds of bargains and sale, lease and release and covenants to stand seized.
We have already noticed the statute of uses and we need not occupy space to examine at length the deeds mentioned for they are not in common use today. We know that the statute of uses was passed to give the fee to him who before that time had a mere use in an estate, the bare legal title to which was held in another. Thus if A conveyed to B for the use of C, the statute of uses gave the legal title to C. Under this statute a number of deeds were invented by which uses were created and the statute then operated to convey the fee, and this saved livery of seisin. The lease and release was a form of conveyance whereby a lease was given to one as for a year and then released to the lessee. The bargain and sale was a deed whereby the grantor bargained to sell and by his bargain became a trustee for the grantee and the statute of uses then conveyed the estate to the grantee. A covenant to stand seized was the creation of a use which the statute executed in the covenantee. In all of these deeds a use was created which the statute executed. We need not examine them further. Black-stone treats them fully if any further study is sought.100
100. Book II, p. 327ff..
(1) Warranty deeds.
A warranty deed is a deed used today whereby the grantor warrants the title to the property, that is, he contracts that if the grantee loses the title, or suffers any damage by reason of any defect in it he, the grantor, will make him whole. There are several warranties of title, such as the grantor is the owner and has the right to convey and that there are no encumbrances and that he will give further assurance and defend the title. By statute in many states whereby certain words are used, as "grants and conveys" or as "bargains and sells" certain warranties of title will be implied; and forms of warranty deeds are set out in the statutes with the legal effect that they shall have. A warranty deed is said to convey after acquired title. Thus, if A by warranty deed conveys to B and the title is defective and A afterwards acquires any title it passes to B under the former warranty deed. In all sales of real estate for an agreed price the warranty deed is the usual deed.
(2) Quitclaim deeds.
The quitclaim deed is a deed used when it is desired that anyone who may have some claim upon land should convey it but the grantor does not care to make any warranties. By a quitclaim deed one in effect says "I hereby quit my claim to this land." Where one is thought to have any interest which operates as a cloud on the title he is usually asked to quitclaim, but would hardly care to warrant in such a case. So when several tenants in common desire to convey to one of their number a quitclaim deed may be used. A quitclaim deed is as effectual to pass a legal title as a warranty deed but no warranties are contained in it and the grantor merely parts with what, if anything, he has, without warranting that he has any interest whatever.
(3) Other deeds.
Trust deeds and mortgages we have already considered.
Leases are deeds by which tenancies are created and we have already considered them.
A release deed is a deed whereby one who has an interest in property under some other deed, releases it. It is used by a mortgagee to release title to the mortgagor and by a trustee to release title obtained by him under the trust deed. The release deed always refers to the deed by which the title which is now released was obtained. Thus a trustee when the debt is paid releases whatever interest he may have by virtue of the trust deed, describing it by date and record number. See the form in the back of this book.
The deed of assignment is a deed whereby one estate is assigned to another as where a mortgagee assigns the mortgage to another. Where a lease is assigned it is usually done by a short assignment on the back of the lease.