A deed has certain orderly and formal parts but is now of a simpler nature than it used to be.
A deed is said to have these following parts: first, the premises, which sets forth the number and names of parties and the consideration and also the description of the property conveyed;101 second, the habendum and tenendum. The habendum states the quantity of the estate; and the tenendum was formerly used to signify the tenure, but as now there is but one form of tenure, the tenendum is useless and is seldom used. Where we use the words "to have and to hold" today they simply read somewhat as follows: "To have and to hold to himself and his heirs forever." But an examination of the modern deed will show that these ancient provisions which used to extend at length are no longer necessary; though of course the deed must show the estate granted, whether, for instance, for life or in fee. The next part of the deed in old days was the reddendum or reservation of rent and this part of a deed we do not find in modern deeds except in leases. Another part of the deed is that which states the conditions upon which the estate is granted, and these are not usually put in deeds, except mortgages and trust deeds, though the fee is sometimes
101. See SEC. 214, post, for description of real estate.
I50 made defeasible, as we shall notice further. The next part of the deed is that part containing the warranties but in our modern deeds the warranties are usually implied in the words used and are not made extensively and are contained in such words as "grant, bargain and sell," etc., at the beginning of the deed. The next part of the deed is that in which the covenants are made in reference to the use of the property, etc., and we will find that land is often granted upon covenants as to its use in our day as well as ancient days. Next comes the conclusions which contains the date of the deed, and refers to its execution. After this is the signature and the seal.
A brief reference to the modern form of deed will show how simple it has become.
By the execution of the deed we mean the act of making it complete as a deed, by signature and sealing in its completed form. The deed is executed by signature and seal with the intent of making it complete and final, but, also, there must be delivery of it before it takes effect.
The deed has no effect without delivery and delivery consists in parting with the deed with the intent of releasing all control over it and making it effective as a legal document.
A deed must not only be properly signed and sealed but it must be delivered before it can take effect. A person may have a deed in his possession which is fully signed and complete in form but the grantee therein can claim nothing by it until it has been delivered to him or to someone for him. The reason of this is very apparent. One may make a deed before he really makes up his mind to use it and until he finally hands it over it can have no effect.
The lack of delivery frequently renders inoperative deeds evidently intended to be effectual at death, but never given over by the grantor during his life time to the grantee.
Delivery may be absolute or upon condition and when upon condition it is said to be delivery in escrow. The party to whom it is delivered is called the escrowee and it is his duty to deliver it to the grantee upon the performance of a condition, as for instance, payment of certain money. Thus, when property is purchased the deed is often put up in escrow to be delivered on payment of a certain part of the purchase money. The deed cannot be delivered in escrow to the grantee himself.
Acknowledgment is the act of the grantor before some official in admitting the instrument to be his own for the purposes therein set forth. It is not essential as between the parties but is requisite to entitle the deed to record, and for other purposes.
Before the grantor delivers the deed he generally acknowledges the same before a notary public or other officer and this consists in his admission, that the deed is his own and was given freely and for the purposes set forth in the deed.
A deed may be effective between the parties without acknowledgment provided it was really delivered, but acknowledgment is always desirable and is necessary for certain purposes. In the first place a trumped up charge of fraud on the part of the grantor would be more difficult to sustain. In the second place, acknowledgment is necessary in most states to make the recording of the deed effectual against third parties. In the third place, dower and homestead cannot be waived by deed except it is acknowledged and in the fourth place, a deed which is acknowledged is said to prove itself, meaning that it can go in as evidence without proof of its execution which would otherwise be necessary.
It is said that acceptance is as necessary as delivery and that is true in this sense, that you cannot compel a man to take an estate against his will, but of course acceptance is usually one with the delivery and does not consist in any special formality. Children who are of tender age, lunatics and the like are presumed to have accepted and can take the estate though too weak mentally to signify a willingness to receive it.
The record of the deed is not essential to its validity in any sense but is necessary for the grantee's protection against subsequent acts of the grantor and should never be neglected.
The purpose of recording the deed is to give notice to all the world of the grantee's rights thereunder and for this reason the grantee should always record the deed for in that only, can he be sure of protection against the acts of the grantor with innocent persons who still rely upon his ownership of the title having no notice by record or otherwise that it has been dispensed with.