This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
The history of a form of a conveyance is a matter of practical utility at the present day - for the old forms still appear in many abstracts of title (see p. 260) which have to be considered by practical lawyers.
I. At Common Law.
(a) Corporeal hereditaments could only be conveyed by delivery. They were said to "lie in livery."
A corporeal hereditament is an interest in land in possession (see p. 7). Such an interest could only be transferred by the public delivery of possession.
This was done by Feoffment with livery of seisin.
The grantor and the grantee entered on the land and the grantor handed over possession to the grantee, generally by giving him a stick or sod of earth from the land, and declared in the presence of witnesses that he granted the land to the grantee and his heirs.
This was livery in deed, i.e. actual delivery of the land, for both parties went on to the land itself. Whereas in case of livery in law, the parties did not go on to the land, but the feoffment took place within sight of the land. This was sufficient if the grantee (or feoffee) entered during the lifetime of the feoffor.
(b) Incorporeal hereditaments being interests in land not in possession, could not be transferred by delivery of possession; hence from early times they could he conveyed by deed of grant. Thus it was said that "Incorporeal hereditaments lie in grant."
Thus if X, the tenant in fee" simple, has granted the land to' A for life, X has not possession of the land: he has merely a reversion; that is, on the death of A, the land will revert to X. If X wished to grant his reversion, i.e. his fee simple subject to A's life interest) to B, he could always do so by deed. This was called a "deed of grant," for it was necessary that a deed should contain the word "grant."
A deed is a writing under seal. Deeds are of two kinds -
1. Indentures, where there are two parties (or sets of parties).
The deed was then written in duplicate on one piece of parchment, and was cut through the middle with an "indented " or waved edge. Each party retained one part, and the indented edge was proof that the two documents related to each other. The indented edge is still often found, but is a mere formality, and does not correspond with the edge of the duplicate (if any). Deeds " inter partes " are still called "indentures."
2. Deeds Poll, where there was only one party (or one set of parties).
The deed then had a "polled " or straight edge.
A deed is not complete until it has been sealed (a) and "delivered."
This delivery may be final, or may be merely conditional.
Where a deed is delivered to a third party so as not to take effect until the happening of a condition, it is called an "escrow."
Deeds are usually signed; but whether this is necessary is still doubtful.
(a) It is not necessary that an actual seal should be used, or even that any impression should be made on the paper or parchment, merely touching the deed is sufficient or any act done with the intention of sealing. See "Norton on Deeds " (1906 Edn.), p. 6.
II. Lease and Release at Common Law.
Lawyers were always trying to find some method of secret conveyance of corporeal hereditaments. The feoffment was public because it involved
(i) Actual entry on the land;
(ii.) Presence of witnesses.
A less public form of conveyance was invented by using the doctrine that incorporeal hereditament could be conveyed by deed. Thus -
The grantor leased the land to the grantee for one year. The grantee entered on the land. Thereupon the grantor had no longer an interest in possession, but merely a reversion following upon the lease for one year. The grantor then granted or "released" his reversion to the grantee by deed.
Note that this did not avoid the necessity for entry by the grantee. But later, by means of the Statute of Uses the necessity for entry was evaded, and a means found by which a grantor in London could convey lands in Devonshire without leaving London. The history of this is as follows: -
III. Immediately after the Statute of Uses it would be possible to convey the whole fee simple without publicity and without entry, as follows: -
A wishes to grant land to B. A agreed to sell the land to B. B paid the purchase-money. This, it will be remembered, raised a use or implied trust in favour of B; and the Statute of Uses turned this use into the legal estate in possession.
Thus a "Bargain and Sale" of land passed the legal estate on payment of the purchase money.
IV. This was prevented in the same year by The Statute of Enrolments (27 Hen. VIII, c. 16). Bargains and sales of land of freehold or inheritance were to be enrolled in certain courts within six months; otherwise they should be void (a).
(a) This statute did not apply to a covenant to stand seised to the use of another in consideration of blood or marriage (see Williams, R.P.,
This Act once more did away with all secrecy; but it did not apply to leaseholds; and this fact was seized upon by the lawyers as a means of once more inventing a secret conven-ance by means of an improved form of lease and release as follows: -
V. Lease and Release after the Statute of Uses. - A in London wished to convey lands in Devonshire to B. A agreed to sell the land (Bargain and Sale) to B for one year. This was not a "Bargain and Sale of Lands of Freehold" and therefore need not be enrolled.
B paid 5s. This nominal consideration was sufficient to raise a use in favour of B for one year, and the Statute of Uses turned this use into the legal estate in possession. Thus B was deemed to be in legal possession of the land for one year.
This being so, A had no longer an estate in possession; he had merely a reversion, which was an incorporeal hereditament and could be conveyed by deed.
Consequently, the next day A by deed released his fee simple reversion "to B and his heirs."
B thus acquired the lease and the reversion, i.e. the whole fee simple, without entry and without publicity.
VI. By the Statute of Frauds (29 Car. II. c. 3, ss. 1-3) all grants of land or any interest in land (except leases for not more than three years at a substantial rent) must be in writing (b).
By section 7 of the same statute writing is made necessary for the creation of trusts of land, and by section 9 transfers of trusts, whether of land or personal property, must be in writing.
p. 211). Hence, if A, being tenant in fee simple, covenants that he will stand seised of the land to the use of his son, the son gets the legal estate.
(b) For the full text of these sections see p. 302.
Thus equitable estates in land cannot be created or transferred without writing.
By section 4, contracts for the sale of land cannot be enforced unless there is some note or memorandum of the contract in writing, and signed by the party to be charged (i.e. the person against whom the contract is being enforced) or his agent.
This statute did not materially affect the form of a conveyance; for a lease and release had become the usual form, and both these documents were usually in writing.
After this Statute, however, the lease must be in writing unless a substantial consideration was paid, namely, at least two-thirds of the best rent obtainable for the year.
A Lease and Release continued to be the usual form of conveyance of freehold land until 1841.
It then at last occurred to the legislature that it was rather ridiculous that every conveyance of land should require two deeds, consequently the necessity of the lease was abolished.
VII. By a statute of 1841 (c) a release alone was made sufficient to convey the fee simple.
The Release stated or "recited" that the lease had been made and then released the reversion.
This fiction of a lease lasted only for four years.
VIII. By the Real Property Amendment Act, 1845, A deed of grant was made sufficient to convey all corporeal estates in land. So that now "corporeal hereditaments lie in grant as well as livery."
By this Act all interests in land can be and (except leases for not more than three years at a substantial rent) (see p. 302) must be conveyed by deed, otherwise the conveyance is void at law. A feoffment may still be used, but if so must be evidenced by deed under this statute.
(c) 4 & 5 Vict. c. 21.