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deed be duly delivered in the first instance, it will operate though the grantee suffer it to remain in the custody of the grantor. If both parties be present, and the usual formalities of execution take place, and the contract is, to all appearance, consummated, without any conditions or qualifications annexed, it is still a complete and valid deed. notwithstanding it be left in the custody of the grantor."
(3.) It must be recorded.
By the statute law of every state in the Union, all deeds and conveyances of land, except certain chattel interests, are required to be recorded, upon previous acknowledg. ment or proof. If not recorded, they are good only ası against the grantor and his hers, and they are void as to subsequent bona fide purchasers, whose deeds shall be first recorded. The English law prevails, generally, in this country, that notice of the deed by the subsequent purchaser, previous to his purchase, will countervail the effect of the registry, and destroy his pretension as a bona fide purchaser. In several of the states, as, for instance, in New-Hampshire, Vermont, Rhode Island, Connecticut, Georgia, Ohio, Illinois, and Indiana, two witnesses are re
a Souverbye v. Arden, i 'Johns. Ch. Rep. 240. Jones y. Jones, 6 Conn. Rep. 111. Doe v. Knight, 5 Barnw. & Cress. 671. In these cases the authorities are collected and reviewed; and the last of these cases considered the doctrine in the text as requiring an extended discussion. It goes over the same ground, and through the same authorities, in 1826, which had been done at New-York, in 1814.
b State of Connecticut v. Bradish, 14 Mass. Rep. 296. Griffith's Register. 4 Greenleaf, 20. By the N. Y. Revised Staludes, vol. i. 756. sec. 1. conveyances not recorded are void, only as against a subsequent purchaser, in good faith, and for a valuable consideration, of the same estate, or any portion thereof, whose conveyance shall be first duly recorded. This was adopting the doctrine in Jackson v. Burgott, 10 Johns. Rep. 457.
quired to the execution of the deed, and probably the deed would not be deemed sufficiently authenticated for record. ing, without the signature of the two witnesses. In Delaware, Tennessee, and South Carolina, two witnesses are necessary, when the deed is to be proved by witnesses. There is, likewise, a fixed period of time allowed, in many of the states, for to have the deed recorded, as, for instance, two years in North Carolina ; one year in Delaware, Illinois, Tennessee, and Georgia ; eight months in Virginia; six months in Pennsylvania, Maryland, South Carolina, and Ohio; three months in Missouri, and Mississippi ; and fifteen days in New Jersey. In the other states, where there is no prescribed time, the deed must be recorded in a reasonable time, and when a deed is recorded within the reasonable, or the limited time, I presume it has relation back to the time of execution, and takes eitect according to the priority of the time of execution, and not according to the priority of the registry.
The mode of proof, and of the coercion of the attendance of witnesses for that purpose, and the officers vested with authority to take and certify the proof, and the effect of such proof, all depend upon the local laws of the several states. In all the states, (except in Louisiana, where the law is peculiar on this subject,) femes covert are competent to convey real estate, with the consent of their husbands, who are to be parties to the conveyance; and the wife is to be separately and privately examined by the officer, respecting the free execution of the deed. This private examination seems to be required in all the states, with the exception or Massachusetts, Connecticut, and perhaps one or two others. The New York Revised Statutest contain minute and specific directions on the subject of the proof and recording of conveyances of real estate. They make no provision as to the number of witnesses, or as to the
time offecording; and, consequently, the common law rule appljes, (and the statute expressly assumes it,) that one witness is sufficient, or the acknowledgment before the Officer without any witness. The deed must be recorded with due diligence, and deeds are to be recorded in the order, and as of the time, when delivered to the clerk for that purpose, and they have effect according to the priority!! of the registry. The statute leaves the question of notice"! to supply the place of registry, as the rule existed before in our own, and in the English law, and it applies to con
veyances of chattels real, as well as of freehold estates, Ilexcept leases for a term not exceeding three years. In | Maryland, as in New-York, attesting witnesses are not reIbuisite to the validity of a deed..
In England, the practice of recording deeds is of local, and very limited application. It applies to the Bedford level tract, to the ridings of Yorkshire, and to the county of Middlesex. During the period of the English commonwealth, there was an effort to establish county regis ters for recording deeds throughout England. The ancient policy was in favour of the entire publicity of transfers of land, by the fine of record, the livery under the feoffment the enrolment of a bargain and sale, and the attornmen! under the grant. But the ingenuity of conveyancers, and the general and natural disposition to withdraw settlements. and the domestic arrangements, from the idle curiosity of the public, have defeated that policy. In Scotland the old feudal forms are retained, and the sasine, or symbolical tradition of the land, in practice. The “ earth and stone," or “ clap and happer,” or “net and coble," the emblematical symbols of the field, or mill, or fishery, are delivered, with due solemnity, to the proxy of the purchaser. The
a Jackson v. Burgott, 10 Johns. Rep. 457. and vide supra, p. 164. h Wickes v. Caulk, 5 Harr. & Johns. 36.
instrument of sasine reciting the transaction, is recorded, and that constitutes the title.a
4. Of the component parts of a deed.
A deed consists or the names of the parties, the considergtion for which the land was sold, the description of thy subject granted, the quantity of interest conveyed, and, lastly, the conditions, reservations, and covenants, if any there be.
(1.) Of the form of the deed.
The Saxons, in their deeds,” said Sir Henry Spelman, “ observed no set form, but used honest and perspicuous words to express the thing intended with all brevity, yet not wanting the essential parts of a deed, as the names of the donor and donee, the consideration, the certainty of the thing given, the limitation of the estate, the reservation, and the names of the witnesses.” This brevity and perspicuity so much commended by Spelman, has become quite lost, or but dimly perceived in the cumbersome forms and precedents of the English system of conveyancing. The Saxons commenced their deeds according to the form of a modern bond, or of an indenture in the first I person, as given by Littleton, by a general appeal to all men to whom the contract might be presented, for its truth and authenticity.d Deeds were afterwards executed by both parties ; and though that practice is now generally disused, the present English forms of conveyance, and the forms in New-York, and in those parts of the United States which adhere the most to the English practice, still retain the language of a mutual contract, executed by both par
a Erskine's Inst. 208. sec. 36. Bell's Com. vol. i. 674.-680. b Spelman's Works, by Bishop Gibson, p. 234. c Litt. sec. 372. d Spelman. p. 237.
ties; and each of them is supposed, by the fiction implied in the more formal parts of the indenture, to retain a copy. By the essential parts of a conveyance of land in fee, are very brief, and require but few words. If a deed of feoff ment, according to Lord Coke, be without premises, ha bendum, tenendum, reddendum, clause of warranty, &c it is still a good deed, if it gives lands to another, and to bis heirs, without saying more, provided it be sealed and delivered, and be accompanied with livery.
In the United States, generally, the form of a convey ance is very simple. It is usually by bargain and sale, and possession passes ex vi facti, under the authority of the local statute, without the necessity of livery of seisin, or reference to the statute of uses. In Delaware, Virginia. and Kentucky, deeds operate under the statute of uses, as they did in New York prior to the 1st of January, 1830, when the revised statutes went into operation. In Massachusetts, under the provincial act of 9 Wm. III. a simple deed of conveyance, without any particular form, and without livery of seisin, was made effectual, provided the intention was clearly declared.b
I apprehend that a deed would be perfectly competent, in any part of the United States, to convey the fee, if it was to be to the following effect : “I, A. B., in consideration of one dollar to me paid by C. D., do bargain and sell (or, in NewYork, grant) to C.D., and his heirs, (in New-York, Virginia, &c. the words, and his heirs, may be omitted,) the lot of land, (describe it,) witness my hand and seal, &c." But persons usually attach so much importance to the solemnity of forms, which bespeak care and reflection, and they feel such deep solicitude in matters that concern their valuable interests, to make “ assurance double sure,” that, generally, in important cases, the purchaser would rather be at
a Co. Litt. 7. a. b Story, J. in Durant v. Ritchie, 4 Mason's Rep. 57.