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throughout the United States. In New-York it has been enacted, in every successive revision of the statutes ; and in the last revision it is made to apply, not only to every estate and interest in lands, but to every trust or power concerning the same ; and the exception as to leases is confined to leases for a term not exceeding one year. But the provision does not apply to trusts by implication, or operation of law. Nor is a parol promise to pay for the improvements made upon land, within the statute of frauds. They are not an interest in land, but only another name for work and labour bestowed upon it. So, a sale for a crop of growing potatoes, has been held not to be such a contract for the sale of any interest in land, as to require a writing, within the statute of frauds.
The common law went further than this provision in the statute of frauds. It is deemed essential, in the English law, to the conveyance of land, that it should be by wri. ting sealed and delivered ; and though a corporation can do almost any business of a commercial nature by a resolution without seal, yet the conveyance of land is not one of the excepted cases, and they cannot convey, or mortgage, but under their corporate seal. Deeds were originally called charters, and from the time of the Norman conquest, the charter was authenticated by affixing to it a seal of wax, and it derived its validity from the seal. The statute law in South Carolina, requires the conveyance of all freehold estates in land, to be by writing, signed, sealed, and delivered, or, in other words, to be conveyed by deed. The statute law in Virginia, and Kentucky, requires the same thing as to all estates or interests in land exceeding a term of five years; and the statute law in Rhode Island,
a N. Y. Revised Statutes, vol. ii. 134. sec. 6.
as to estates exceeding a term for one year. There is probably similar statute provisions in other states; and where there is not, the general rule of the common law, that the conveyance of land must be by deed, is adopted and fo} lowed, with the exception of Louisiana, where sales of land are made by writing only, and must be registered in the office of a notary. It had been adjudged in NewYork, in 1814, that a conveyance of a freehold estate must be by deed, or a writing under seal, and the decision was founded upon the doctrine of the English common law. The revised statutes' bave adopted this rule, by de claring, that every grant in fee, or of a freehold estate, must be subscribed and sealed by the grantor, or his law agent, and either duly acknowledged previous to its del very, or be attested by at least one witness.
A deed is an instrument in writing, upon paper or parch: meyt, between parties able to contract, and duly sealed and delivered. As a seal is requisite to a deed, the definition, and the character of it, are well settled. The common law intended, by a seal, an impression upon wax or water, or some other tenacious substance capable of being impressed. According to Lord Coke, a seal is was, with an impression-sigillum est cera impressa, quia cera sine 1941pressione non est sigillum. The common law definitio.. of a seal, and the use of rings and signets for that pur
a Civil Code of Louisiana, art. 2415. 2417.
Jackson v. Wood, 12 Johns. Rep. 73. CN. Y. Revised Statutes, vol. i. 738. sec, 137, d Co. Litt. 35. b.
e 3 Inst. 169. This definition of Lord Coke is supported by all! ancient authorities. See Perkins, sec. 134. Bro. tit. Facts, 17. U. Lightfoot and Butler's case, 2 Leon, 21. In public and notarial 11. struments, the seal or impression is usually made on the paper, a with such force as to give tenacity to the impression, and to leave character of the seal upon it.
pose, and by way of signature and authenticity, is corroborated by the usages and records of all antiquity, sacred and profane. In the eastern states, sealing, in the common law sense, is requisite ; but in the southern and western states, from New-Jersey inclusive, the impression upon wax has been disused to such an extent, as to induce the courts to allow a flourish with the pen, at the end of the name, or a circle of ink, or scroll, to be a valid substitute for a seal. This is destroying the character of seals, and it is, in effect, abolishing them, and with them the definition of a deed or specialty, and all distinction between writings sealed, and writings not sealed. Whether land should be conveyed by writing, signed by the grantor only, or by writing signed, sealed and delivered by the grantor, may be a proper subject for municipal regulation. But to abolish the use of seals by the substitute of a flourish of the pen, and yet continue to call the instrument which has such a substitute a deed, or writing, sealed and delivered, within the purview of the common or the statute law of the land, seems to be a misnomer, and is of much more questionable import. In New-York the seal retains its original definition and character.c
a Genesis, ch. xxxviii. v. 18. Exodus, ch. xxviii. v. 11. Esther, ch. viji. v. 8. 10. Jeremiah, ch. xxxii. v. 10, 11. Cicero, Acad. Q. Lucul. 4. 26. Heinecc. Elem. Jur. Civ. 497.
6 Force v. Craig, 2 Halsted's Rep. 272. Alexander v. Jameson, 5 Binney's Rep. 238. Temple v. Logwood, 1 Wash. Rep. 42. But in Virginia, there must be evidence of an intention to substitute the scroll for a seal. 1 Munf. 487. And it is understood that the scroll is, by statute, in Delaware, Virginia, Illinois, Missouri, and Tennessee, made tantamount to an actual seal.
c Warren v. Lynch, 5 Johns. Rep. 239. Mr. Griffith, the author of the “ Annual Law Register of the United States," and to whom the public have been so much indebted for that very useful publication, has, in a note to vol. iv. p. 1201, urged the expediency of substituting the scroll for the seal, by sensible and forcible observations,
(2.) It must be delivered.
Delivery is another incident essential to the due execution of a deed, for it takes effect only from the delivery. The deed may be delivered to the party himself to whom it is made, or to any other person authorized by him to receive it. It may be delivered to a stranger as an escrow, which means a conditional delivery to the stranger, to be kept by him until certain conditions be performed, and then to be delivered over to the grantee. Until the condition be performed, and the deed delivered over, the estate Hoes not pass, but remains in the grantor. Generally, an escrow takes effect from the second delivery, and is to be considered as the deed of the party from that time ; but this general rule does not apply when justice requires a resort to fiction. The relation back to the first delivery, so as to give the deed effect from that time, is allowed in cases of necessity, to avoid injury to the operation of the deed, from events happening between the first and second delivery. Thus, if the grantor was a feme sole when she executed the deed, and she married before it ceased to be an escrow by the second delivery, the relation back to the time when she was sole, is necessary to render the deed valid. But if the fiction be not required for any such purpose, it is not admitted, and the deed operates according to the truth of the case, from the second delivery. It is a general principle of law, that in all cases where it becomes necessary, for the purposes of justice, that the true time when any legal proceeding took place should be ascertained, the fiction of law introduced for the sake of justice, is
and which might well influence courts of justice, if they were fat liberty, to substitute their sense of expediency for a rule of the common law not changed by statute.
a Jackson v. Catlin, 2 Johns. Rep. 248. Perkins, sec. 137, 138. 142.
not to prevail against the fact. It has further been held, that 1 the grantor deliver a deed as his deed, to a third person, to be delivered over to the grantee on some future event, as on the arrival of the grantee at York, it is a valid deed from the beginning, and the third person is but al trustee of it for the grantee. The delivery to the third person, for and on behalf of the grantee, may amount to a valid delivery. Thus, where A. delivered a deed to B., to deliver over to C., as his deed, and B. did so, and though C. refused to accept of it, the deed was held to enure from the first delivery ; because the deed was not delivered as an escrow, or upon a condition to be performed. So, if a
a Perkins, sec. 138. Butler and Baker's case, 3 Co. 35. b. 36. a. Frost v. Beekman, 1 Johns. Ch. Rep. 288. Littleton v. Cross, 3 Barnr. & Cress. 317.
6 Perkins, 143, 144. Holt, Ch. J. 6 Mod. Rep. 217. Parsons, Ch. J. 2 Mass. Rep. 452. The distinction on this point is quite subtle, and almost too evanescent to be relied on.
c Taw v. Bury, 2 Dyer, 167. b. Alford and Lea's case, 2 Leon, 110. It appears difficult to sustain the law of these cases, unless on the ground of the subsequent possession of the deed by the grantee, and its relation back. Lord Coke, in Butler and Baker's case, (3 Co. 26. b.) explains this point, by admitting that C. may refuse the deed, in pais, when offered, and then the obligation will lose its force. In both those cases, it is assumed that the third person, who first received the deed, was a stranger to C., and not his agent; and yet in Doe v. Knight, (5 Barnw. & Cress. 671.) Mr. J. Bayley, who delivered the opinion of the K. B., lays down the law according to the authority of those cases, which he cites with approbation. It seems to be the rule at law, that a deed, so executed and delivered, will bind the grantor, if the grantee can, at any time, and in any way, get possession of it; yet a court of equity will disregard a deed, as an imperfect instrument, if it be voluntary, and never parted with, and executed for, a special purpose never acted on, and without the knowledge of the grantee, and it will not lend any assistance to the grantee. Cecil v. Butcher, 2 Jacob & Walk. 575. The deed may operate by a presumed assent, until a dissent appears, and then it becomes inoperative ; for no person can be made a grantee against his will, and without his agreement. Thompson v. Leach, 2 Vent. 198. 3 Preston on Abstracts. 104.