This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At common law, the only recognized mode of authenticating a written instrument was by sealing, and consequently any conveyance in use at the present day which takes effect by the common law, such as a grant of a right in another's land, or a release, must be under seal, in the absence of a statutory provision to the contrary.80
In a number of the states, by express provision of statute, seals are no longer necessary, and the presence of a seal on a conveyance does not affect the acquisition of rights thereunder.81 In other states there is an express requirement that a transfer of an interest in land shall be under seal.82
Since, after the passage of the Statute of Uses, a conveyance by bargain and sale might be oral, the mere payment of a consideration being sufficient to raise a use, which the statute would execute,83 and since moreover, the Statute of Enrollments, passed in recognition of this fact, and requiring a bargain and sale to be by writing under seal and enrolled, has been
Conlan v. Grace, 36 Minn. 276; Pierce v. Hakes, 23 Pa. St. 231; Newton v. Emerson, 66 Tex. 142;
78. Colton v. Leavey, 22 Cal. 496; Jackson v. Sanford, 19 Ga. 14; Scott v. Whipple, 5 Me. 336; Harrelson v. Sarvis, 39 S. C. 14, 17 S. E. 368.
79. Johnson v. Brook, 31 Miss. 17; Arthur v. Anderson, 9 Rich. (S. C.) 234; Haskins v. Lombard, 16 Me. 140, 33 Am. Dec. 645. See Post, Sec. 462.
80. Somerset v. Fogwell, 5 Barn. & C. 875; Wood v. Lead-bitter, 13 Mees. & W. 838; Hew-lins v. Shippam, 5 Barn. & C. 229; Arnold v. Stevens, 24 Pick. (Mass.) 109, 35 Am. Dec. 305;
Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484; Huff v. Mccauley, 53 Pa. St. 206, 91 Am. Dec. 203; Cagle v. Parker, 97 N. C. 271, 2 S. E. 76.
81. 1 Stimson's Am. St. Law, Sec. 1564 (B). See Wisdom v. Reeves, 110 Ala. 418, 18 So. 13; Pierson v. Armstrong, 1 Iowa, 283, 63 Am. Dec. 440; Jerome v. Ortnian. 66 Mich. 668; Gibbs v. Mcguire, 70 Miss. 646, 12 So. 829.
82. 1 Stimson's Am. St. Law, Sec. 1564 (A).
83. Challis, Real Prop. 419, 420; Williams, Real Prop. (18th Ed.) 196; 1 Hayes, Conveyancing (5th Ed.) 76. See ante, Sec. 428.
• generally regarded as not in force in this country, it would seem that a seal is unnecessary, in the absence of a state statute to the contrary, in the case of a con veyance taking1 effect under the Statute of Uses or under a state statute. In a number of the states, however, it has been decided or assumed that, even in the absence of a local statutory requirement, a seal is necessary, this view being sometimes based upon the assumption that a conveyance of land is necessarily a "deed," which, since a deed means a sealed instrument, assumes the very point in question.84
- Sufficiency. At common law, an instrument was sealed, usually, at least, by impressing some device upon wax, which was made to adhere to the paper;86 but at the present day an impression made by stamping upon the paper on which the instrument is written,87 or even a paper wafer or piece of paper gummed on the face of the instrument,88 is usually regarded as sufficient. By statute in many states, a mere scroll or any other device marked on the paper on which the conveyance is written is sufficient,89 and in other states a similar view has been taken, in the absence of any express statute.90 So, the writing of the word "Seal" in connection with the signature has been regarded as a sufficient sealing.91 A recital in the instrument that it is sealed is not necessary in order to make the sealing effective, if there is actually a seal.92 In a few decisions, however, a different view has been taken when the alleged seal consisted of merely a scroll or other device which did not of itself show that it was affixed as a seal.93 A statement in the instrument that it is sealed will not be sufficient as a substitute for a seal.94
84. Floyd v. Ricks, 14 Ark. 286, 58 Am. Dec. 374; Barrett v. Hinckley, 270 111. 298, 110 N. E. 359; Osby v. Reynolds, 260 111. 576, 103 N. E. 556; Switzer v. Knapps, 10 Iowa, 72. 74 Am. Dec. 375; Mclaughlin v. Randall. 66 Me. 226; Colvin v. Warford, 20 Md. 357; Robinson v. Noel, 49 Miss. 253; Jackson v. Hart, 12 Johns. (N. Y.) 77. In Underwood v. Campbell, 14 N. H. 393, it seems to be considered that the Statute of Enrollments is in force in New Hampshire.
85. Switzer v. Knapps, 10 Iowa, 72, 74 Am. Dec. 375; Jewell, v. Harding. 72 Me. 124; Mccarley v. Tippah County Sup'rs, 58 Miss. 483; Wadsworth v. Wendell, 5 Johns, eh. (N. Y.) 224; First
Nat. Bank of North Bend v. Gage, 71 Ore, 373, 142 Pac. 539; Brink-ley v. Bethel, 9 Heisk. (Tenn) 786; Frost v. Wolf, 77 Tex. 455, 19 Am. St. Rep. 761; Garten v. Layton, 76 W. Va. 63, 84 S. E. 1058.
86. 3 Co. Inst. 169.
87. Sugden, Powers (8th Ed.) 232; Pillow v. Roberts, 13 How. (U. S.) 472; Pillow v. Roberts, 12 Ark. 822; Hendee v. Pinkerton, 14 Allen (Mass.) 381; Allen v. Sullivan R. Co.. 32 N. H. 446; Corrigan v. Trenton Delaware Falls Co., 5 N. J. Eq. 52 Contra, Bank of Rochester v. Gray. 2 Hill (N. Y.) 227; Warren v. Lynch, 5 Johns. (N .Y.) 239. See l Am. Law Rev. at p. 638.
88. Tasker v. Bartlett, 5 Cush. (Mass.) 359; Turner v. Field, 44 Mo. 382; Corrigan v. Trenton Delaware Falls Co., 5 N. J. Eq. 52.
89. 1 Stimson's Am. St. Law, Sec. 1565.
90. Trasher v. Everhart. 3 Gill. & J. (Md.) 246; Hudson v. Poindexter, 42 Miss. 304; Hacker's Appeal, 121 Pa. St. 192; Jones v. Logwood, 1 Wash. (Va.) 42. Contra, Mclaughlin v. Randall, 66 Me. 226; Bates v. Boston & N. Y. C. R. Co., 10 Allen (Mass.) 251; Douglas v. Oldham, 6 N. H. 150; Warren v. Lynch, 5 Johns. (N. Y.) 239.
91. Cochran v. Stewart, 57 Minn. 499, 59 N. M. 543; White-ley v. Davis' Lessee, 1 Swan (Tenn.) 333. The word "Seal" within a scroll has been decided to be sufficient in some cases. Hastings v. Vaughn. 5 Cal. 315; Miller v. Binder, 28 Pa. St. 489;
English v. Helms, 4 Tex. 228. Contra, Beardsley v. Knight, 4 Vt. 471.
92. Wing v. Chase, 35 Me. 260; Devereux v. Mcmahon, 108 N. C. 134, 12 L. R. A. 205, 12 S. E. 902; Proprietors of Mill Dam Foundry Co. v. Hovey, 21 Pick. (Mass.) 417, 428; Taylor v. Glaser, 2 Serg. & R. (Pa.) 502; Comyns, Dig. "Fait" (A 2).
93. Bohannon v. Hough, 1 Miss. 461; Cromwell v. Tate's Ex'r, 7 Leigh (Va.) 301, 30 Am. Dec. 506; Corlies v. Vannote, 16 N. J. L. 324; Carter v. Penn, 4 Ala. 140. And see Buckingham v. Orr, 6 Colo. 587. Compare Ash-well v. Ayres, 4 Grat. (Va.) 283.
94. Armstrong v. Pearce, 5 Harr. (Del.) 551; Deming v. Bullitt, 1 Blackf. (Ind.) 241; Mc-pherson v. Reese, 58 Miss. 749; Patterson v. Galliher, 122 N. C. 511. 29 S. E. 773; Taylor v. Glaser, 2 Serg. & R. (Pa.) 502;
The seal need not, and in fact usually is not, affixed at the same time as or after the signing of the instrument, it being sufficient that the party adopts, expressly or impliedly, the seal already placed on the paper.95 So, each of the parties executing the instrument need not have a separate seal, one seal being sufficient if adopted by all the parties signing.96