Stamps on deeds.
Duplicate or counterpart.
(x) Pigot's cane, 11 Rep. 27 a.
(y) Aldons v. Cornwell, L. It., 3 Q. B. 573; A dsetts v. Hives, 33 Beav. 55.
(z) Lord Ward v. Lumley, 5 II. & N. 87, 656.
(a)Pigot's case, 11 Rep. 27 a; Principles of the Law of Personal Property, p. 81, 4th ed.; 83, 5th ed.; 85, 6th cd.; 88, 7th ed.; Hall v. Chandless, 4 Bing. 123. It is now felony not only to steal, but also for any fraudulent purpose to destroy, cancel, obliterate or conceal, any document <>f title to lands. Stat. 24 & 25 Vict. c. 96, s. 28.
(b) Stat. 33 & 34 Vict. c. 97.
Deeds are divided into two kinds, Deeds poll and Indentures: a deed poll being made by one party only, and an indenture being made between two or more parties. Formerly, when deeds were more concise than at present, it was usual, where a deed was made between two parties, to write two copies upon the same piece of parchment, with some word or letters of the alphabet written between them, through which the parchment was cut, often in an indented line, so as to leave half the words on one part, and half on the other, thus serving the purpose of a tally. But at length indenting only came into use (g); and now every deed, to which there is more than one party, is cut with an indented or waving line at the top, and is called an indenture (h). Formerly, when a deed assumed the form of an indenture, every person who took any immediate benefit under it, was always named as one of the parties. But now by the act to amend the law of real property it is enacted that, under an indenture, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture; also that a deed, purporting to be an indenture, shall have the effect of an indenture, although not actually indented (i). A deed made by only one party is polled, or shaved even at the top, and is therefore called a deed poll; and, under such a deed, any person may accept a grant, though of course none but the party can make one. All deeds must be written either on paper or parchment (k).
The Stamp Act, 1870.
Progressive duties abolished. Duplicate or counterpart.
Deeds poll and indentures.
(c) Stats. 55 Geo. III. c. 184; 13 & 14 Vict. c. 97; 21 & 25 Vict. c. 91, s. 31.
(d) Stat. 33 & 34 Vict. c. 97.
(e) Schedule to act, tit. Deed.
(f) Schedule to act, tit. Duplicate. (g,) 2 Black. Com. 295. (h) Co. Litl 143b.
So manifest are the advantages of putting down in writing matters of any permanent importance, that, as commerce and civilization advanced, writings not under seal must necessarily have come into frequent use; but, until the reign of King Charles II., the use of writing remained perfectly optional with the parties, in every case which did not require a deed under seal. In this reign, however, an act of parliament was passed (l), requiring the use of writing in many transactions, which previously might have taken place by mere word of mouth. This act is intituled "An Act for Prevention of Frauds and Perjuries," and is now commonly called the Statute of Frauds. It enacts (m), amongst other things, that all leases, estates, interests of freehold, or terms of years, or any uncertain interest, in messuages, manors, lands, tenements, or hereditaments, made or created by livery of seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and no greater force and effect; any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding. The only exception to this sweeping enactment is in favour of leases not exceeding three years from the making, and on which a rent of two-thirds at least of the full improved value is reserved to the landlord (n). In consequence of this act, it became necessary that a feoffment should be put into writing, and signed by the party making the same, or his agent lawfully authorized by writing; but a deed or writing under seal was not essential (o), if livery of seisin were duly made. But now by the act to amend the law of real property (p), it is provided that a feoffment, other than a feoffment made under a custom by an infant, shall be void at law, unless evidenced by deed (q). "Where a deed is made use of, it is a matter of doubt, whether signing, as well as sealing, is absolutely necessary: previously to the Statute of Frauds, signing was not at all essential to a deed, provided it were only sealed and delivered (r); and the Statute of Frauds seems to be aimed at transactions by parol only, and not to be intended to affect deeds. Of this opinion is Mr. Preston (s). Sir William Blackstone, on the other hand, thinks signing now to be as necessary as sealing (t). And the Court of Queen's Bench has, if possible added to the doubt (u). Mr. Preston's, however, appears to be the better opinion (x). However this may be, it would certainly be most unwise to raise the question by leaving any deed sealed and delivered, but not signed.
Person taking benefit need not be a party.
Writings not under seal.
The Statute of Frauds.
(i) Stat. 8 & 9 Vict, c. 106, s. 5, repealing -tat. 7 & 8 Vict. c. 76, s 11, to the same effect.
(k) Shep. Touch. 54; 2 Black.
(l) Stat. 29 Car. II. c. 3. (m) Sect. 1.
A deed now necessary.
Whether sign ing of deeds necessary.
(n) Stat. 29 Car. II. c. 3, s. 2. (o) 3 Brest. Abst. 110. (p) Stat. 8 & 9 Vict. c. 106. (q) Sect. 3. (r) Shep. Touch. 56. (s) Shep. Touch, n. (24), Preston's ed.
(t) 2 Black. Com. 306.
(u) Cooch v. Goodman, 2 Queen's Bench Rep. 580, 597.
(x) See Taunton v. Pepler, 6 Madd. 166,167; Avcline v. Whis-son, 4 Man. & Gran. 801; Cherry v. He'ming, 4 Ex. 631, 636.
The doubt above mentioned is just of a class with many others, with which the student must expect to meet. Lying just by the side of the common highway of legal knowledge, it yet remains uncertain ground. The abundance of principles and the variety of illustrations to be found in legal text books, are apt to mislead the student into the supposition, that he has obtained a map of the whole country which lies before him. But further research will inform him that this opinion is erroneous, and that, though the ordinary paths are well beaten by author after author again going over the same ground, yet much that lies to the right hand and to the left still continues unexplored, or known only as doubtful and dangerous. The manner in which our laws are formed is the chief reason for this prevalence of uncertainty. Parliament, the great framer of the laws, seldom undertakes the task of interpreting them, a task indeed which would itself be less onerous, were more care and pains bestowed on the making of them. But, as it is, a doubt is left to stand for years, till the cause of some unlucky suitor raises the point before one of the Courts; till this happens, the judges themselves have no authority to remove it; and thus it remains a pest to society, till caught in the act of raising a lawsuit. No wonder then, when judges can do so little, that writers should avoid all doubtful points. Cases, which have been decided, are continually cited to illustrate the principles on which the decisions have proceeded; but in the absence of deci--ion, a lawyer becomes timid, and seldom ventures to draw an inference, lest he should be charged with introducing a doubt.
To return: a feoffment, with livery of seisin, though Legal doubts.
once the usual method of conveyance, has long since censed to be generally employed. For many years past, another method of conveyance has been resorted to, which could be made use of at any distance from the property; but as this mode derived its effect from the Statute of Uses (y), it will be necessary to explain that statute before proceeding further.
(y) 27 Hen. VIII. c. 10.