A feoffment might have created an estate by wrong.
(a) Co. Litt. 20 b; 2 Black. Com. 115.
(b) Litt. s. 1; Co. Litt. 20 a.
(c) Ante, pp. 17, 18. (d) Ante, p. 41.
Down to the time of King Henry VIII. nothing more was requisite to a valid feoffment than has been already mentioned. In the reign of this king;, how-ever, an act of parliament of great importance was passed, known by the name of the Statute of Uses (k). And since this statute, it has now become further requisite to a feoffment, either that there should be a consideration for the gift, or that it should be expressed to be made, not simply unto, but unto and to the use of the feoffee. The manner in which this result has been brought about by the Statute of Uses will be explained in the next chapter.
Feoffment by tenant fur life.
By idiots and lunatics.
By infants, of gavelkind lauds.
The Statute of Uses.
(e) Ante, p. 65. (f) Ante, p. 125. (g) Ante, p. 65.
(h) Stat. 8 & 9 Vict. c. 106, s. 4.
(i) Sect. 3.
(k) Stat. 27 Hen. VIII. c. 10.
If proper words of gift were vised in a feoffment, and witnesses were present who could afterwards prove them, it mattered not, in ancient times, whether or not they were put into writing (l); though writing, from its greater certainty, was generally employed (m). There was this difference, however, between writing in those days, and writing in our own times. In our own times, almost everybody can write; in those days very few of the landed gentry of the country were so learned as to be able to sign their own names (n). Accordingly, on every important occasion, when a written document was required, instead of signing their names, they affixed their seals; and this writing, thus sealed, was delivered to the party for whose benefit it was intended. Writing was not then employed for every trivial purpose, but was a matter of some solemnity; accordingly, it became a rule of law, that every writing under seal imported a consideration (o): - that is, that a step so solemn could not have been taken without some sufficient ground. This custom of sealing remained after the occasion for it had passed away, and writing had been generally introduced; so that, in all legal transactions, a seal was affixed to the written document, and the writing so sealed was, when delivered, called a deed, in Latin factum, a thing done; and, for a long time after writing had come into common use, a written instrution required, or the gift to be made to the use of the feoffee.
ment, if unsealed, had in Law no superiority over mere words (p); nothing was in fact called a writing, but a document under seal (q). And at the present day a deed, or a writing sealed and delivered (r), still imports a consideration, and maintains in many respects a superiority in law over a mere unsealed writing. In modern practice the kind of seal made use of is not regarded, and the mere placing of the finger on a seal already made, is held to be equivalent to sealing (s); and the words " I deliver this as my act and deed," which are spoken at the same time, are held to be equivalent to delivery, even if the party keep the deed himself(t). The sealing and delivery of a deed are termed the execution of it. Occasionally a deed is delivered to a third person not a party to it, to be delivered up to the other party or parties, upon the performance of a condition, as the payment of money or the like. It is then said to be delivered as an escrow or mere writing (scriptum); for it is not a perfect deed until delivered up on the performance of the condition; but when so delivered up, it operates from the time of its execution (u). Any alteration, rasure or addition made in a material part of a deed after its execution by the grantor, even though made by a stranger, will render it void; and it was formerly held that any alteration in a deed made by the party to whom it was delivered, though in words not material, would also render it void (x). But a more reasonable doctrine has lately prevailed; and it has now been held that the filling in of the date of the deed, or of the names of the occupiers of the lands conveyed, or any such addition, if consistent with the purposes of the deed, will not render it void, even though done by the party to whom it has been delivered, after its execution (y). If an estate has once been conveyed by a deed, of course the subsequent alteration, or even the destruction, of the deed cannot operate to reconvey the estate; and the deed, even though cancelled, may be given in evidence to show that the estate was conveyed by it whilst it was valid (z). But the deed having become void, no action could be brought upon any covenant contained in it (a).
Writing formerly unnecessary.
(l) Bracton, lib. 2, fol. 11 b, par. 3, 33 b, par. 1; Co. Litt. 48i b, 121 b, 143 a, 271 b, n. (1).
(m) Madox'sForm. Angl. Dissert, p. 1.
(n) 3 Hallam's Middle Ages, 329; 2 Black. Com. 305, 306.
(o) Plowden, 308; 3 Burrow, 1639; I Fonblanque on Equity, 342; 2 Fonb. Eq. 26.
Alteration, rasure, etc.
(p) See Litt. ss. 250, 252; Co. Litt. 9 a, 49 a, 121 b, 143 a, 169 a; Rann v. Hughes,7T. Etep.350,n.
(q) See Litt. ss. 365, 366, 367; Shcp. Touch, by Preston, 320, 321; Sugden's Vcn. & Par. 126, 11th ed.
(r) Co. Litt. 171 b; Shep. Touch. 50.
(s) Shep. Touch. 57.
(t) Due d. Garnons v. Knight, 5 Barn. & Cress. 671; Gnigeon v. Gerrard, 4 You. & Coll. 119, 130; Exton v. Scott, 6 Sim. 31; Fletcher v. Fletcher, 4 Hare, 67. See also Hall v. Bainbridge, 12 Q. B. 699.
(u) See Shep. Touch. 58, 59; Bowker v. Burdekin, 11 Mees. & Wcls. 128, 147; Nash v. Flyn, 1 Jones & Lat. 162; Graham v. Graham, 1 Ves. jun. 275; Miller-ship v. Brookes, 5 H. & N. 797.
Previously to the Stamp Act, 1870 (b), every deed, if not charged with any ad valorem or other stamp duty, nor expressly exempted from all stamp duty, was liable to a stamp duty of 1l. 15s.; and if the deed, together with any schedule, receipt or other matter put or indorsed thereon or annexed thereto, contained 2160 words, or 30 common law folios of 72 words each, or upwards, it was liable to a further progressive duty of 10s. for every entire quantity of 1080 words, or 15 folios, over and above the first 1080 words. But the duplicate or counterpart of any deed was liable only to a stamp duty of five shillings and a progressive duty of half-a-crown, unless the original were liable to a less duty, in which case the duty was thc same as on the original. If, however, the deed were signed or executed by any party thereto, or bore date, before or upon the 10th of October, 1850, when the former act to amend the stamp duties took effect, then the progressive duty was 1l. 5s. for every entire quantity of 1080 words beyond the first 1080 (c). But the Stamp Act, 1870 (d), has now consolidated and amended the provisions relating to the stamp duties. The stamp duty for a deed of any kind not described in the schedule to the act, is now only 10s. (e); and all progressive duties are abolished. The duplicate or counterpart of any deed is subject to the same duty as before, except the progressive duty(f).