Oldalképek
PDF
ePub

the expense of exchanging a paper of such insignificance of appearance, for a conveyance surrounded by the usual outworks, and securing respect, and checking attacks, by the formality of its manner, the prolixity of its provisions, and the usual redundancy of its language. The English practice, and the New-York practice, down to the present time, have been in conformity with the opinion of Lord Coke, that it is not advisable to depart from the formal and orderly parts of a deed, which have been well conşidered and settled.

(2.) of the parties.

The parties must be competent to contract, and truly and sufficiently described. A grant to the people of a county has been held to be yoid, because the statute enabling supervisors of counties to take conveyances of land, applied only to conveyances made to them by their official name," So, a grant to the inhabitants of a town not incorporated, is void, But conveyances are good, in many cases, when made to a grantee by a certain designation, without the mention of either the christian or surname, as to the wife of I. S., or to his eldest son, for id est certum, quod potest reddi certum.

(3.) Of the consideration,

A consideration is generally held to be essential to a good and absolute deed ; though a gift, or voluntary conWeyance, will be effectual as between the parties, and is only liable to be questioned in certain cases, when the rights of ereditors, and subsequent purehasers, are concerned. The consideration must be good or valuable, and not partaking of any thing immoral, illegal, or fraudulent. It is a universal rule, that it is unlawful to contract

a Jackson v. Cory, 8 Johns. Rep. 385.
6 Hornbeck v. Westbrook, 9. ibid. 73.
r Co. Litt. 3. a.

to do that which it is unlawful to do; and every deed, and every contract, are equally void, whether they be made in violation of a law which is malum in se, or only malum prohibitum. A good consideration is founded upon natural love and affection between near relations by blood ; but a valuable one is founded on something deemed valuable, as money, goods, services, or marriage. There are some deeds, to the validity of which a consideration need not have been stated. It was not required, at common law, in feoffments, fines, and leases, in consideration of the fealty and homage incident to every such conveyance. The law raised a consideration from the tenure itself, and the solemnity of the act of conveyance. The necessity of a consideration came from the courts of equity, where it was held requisite to raise a use ; and when uses were introduced at law, the courts of law adopted the same idea, and held, that a consideration was necessary to the validity of a deed of bargain and sale. It has been long the setItled law, that a consideration expressed or proved, was necessary to give effect to a modern conveyance to uses." The consideration need not be expressed in the deed, but it must exist. It is sufficient if the deed purports to be for money received, or value received, without mentioning the certainty of the sum ; and if any sum is mentioned, the smallest in amount or value will be sufficient to raise the use. The consideration has become a matter of form, in respect to the validity of the deed in the first inst ince. in a court of law; and if the deed be brought in que tion,

a Aubert v. Maze, 2 Bos. & Pull. 371. Ribbans v. Cricket ibid. 264. Watts v. Brooks, 3 Vesey's Rep. 612. Bank of the nited States v. Owens, 2 Peters' U. S. Rep. 527.

6 Lloyd v. Spillet, 2 Atk. Rep. 148. Jackson v. Alexa ler, 3 Johns. Rep. 491. Preston on Abstracts, vol. iii. 13, 14.

c Fisher v. Smith, Moor, 569. Jackson v. Schoonmaker,? phas Rep. 230. Jackson v Alexander, 3 ibid. 491. Cheney v. W kins, 1 Harr. & Johns. 527.

the, consideration may be averred in pleading, and supportsd by proof. The receipt of the consideration money is usually mentioned in the deed ; and Mr. Preston says, that if the receipt of it be not endorsed upon the deed, it, will, in transactions of a modern date, be presumptive evidence that the purchase money has not been paid, and impose upon a future purchaser the necessity of proving payment, in order to rebut the presumption of an equitable lien in favour of the seller for his purchase money. I have no idea that the courts of justice in this country would tolerate any such presumption in the first instance, from the mere circumstance of the omission to endorse on the deed the receipt of payment, for that ceremony is not now the American practice

(4.) The description of the premises.

In the description of the land conveyed, the rule is that known and fixed monuments control courses and distances. : So, the certainty of metes and bounds will include, and pass all the lands within them, though they vary from the given quantity expressed in the deed. The least certain and material parts of the description, must yield to those which are the most certain and material, if they cannot be reconciled; though, in construing deeds, the courts will give effect to every part of the description, if practicable. Where natural and ascertained objects are wanting, and the course and distance cannot be reconciled, the one or the other may be preferred, according to circumstances. If there be nothing to control the course and distance, the line is run by the needle. The mention of quantity of acres, after a certain description of the subject by metes and bounds, or by other known specification, is but matter

a Abstracts, vol. i. 72. 299. Ibid. vol. ii. 15.

Jackson v. Staats, 2 Johns. Cas. 350.' Trammell v. Nelson, 2 Harr. & M Henry, 4. Pernam v. Weed, 6 Mass. Rep. 131. M Iver 1. Walker, 9 Cranch's Rep. 173. Preston v. Bowmar, 6 Wheat. Rep. 580.

Il of description, and does not amount to any covenant, e

afford ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the girea amount. Whenever it appears by the definite boundaries, or by words of qualification, as " more or less," or as “ containing by estimation," or the like, that the state ment of the quantity of acres in the deed, is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case. So, according to the maxim of Lord Bacon, falsa demonstratio non nocet, when the thing itself is certainly described ; as in the instance of the farm called A., now in the occupation of B.; here the ilfarm is designated correctly as farm A.; but the demonIstration would be false if C., and not B., was the occupier, Isand yet it would not vitiate the grant.

(5.) Of the habendum.

This part of the deed was originally used to determine the interest granted, or to lessen, enlarge, explain, or qua. lify the premises. But it cannot perform the office of de vesting an estate already vested by the deed, for it ia void if it be repugnant to the estate granted. It has degenerated into a mere useless form, and the premises non contain the specification of the estate granted, and the deed becomes effectual without any habendum. If, however, the premises should be merely descriptive, and no estate

a Mann v. Pearson, 2 Johns. Rep. 27. Smith v. Evans, 6 Binney's Rep. 102. Powell v. Clark, 5 Mass. Rep. 355. and see 1 Aiken's Rep. 325. to the same point. Jackson v. Moore, 6 Cowen's Rep. 706.

b Stebbins v. Eddy, 4 Mason's Rep. 414.

c Preston on Abstracts, vol. iii. 206-210. has collected the nice distinctions on this subject, of the requisite description of the premi mises; but to notice them all would lead me too far into detail.

1 2 Blacks. Com. 298. Goodtitle v. Gibbs, 5 Barnw. & Cress. 709

1

be mentioned, then the habendum becomes efficient to declare the intention, and it will rebut any implication arising from the silence of the premises.

(6.) Of the usual covenanta in a deed.

The ancient warranty was a covenant real, whereby the grantor of an estate of freehold, and his heirs, were bound to warrant the title ; and either upon voucher, or by judg. ment in a writ of warrantia chartæ, to yield other lands to the value of those from which there had been an eviction by a paramount title. The heir of the warrantor was bound only on condition that he had, as assets, other lands of equal value by descent. Lineal warranty was where the heir derived title to the land warranted, either from or through the ancestor who made the warranty; and collateral warranty was where the heir's title was not derived ? from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by de. scent from or through the ancestor; and it imposed upon him the obligation of giving the warrantee other lands, in case of eviction, provided he had assets. These collateral warranties were deemed a great grievance, and, after successive efforts to be relieved from them, the statute of 4 Anne, c. 16. made void, not only all warranties by any tenant for life, as against any person in reversion or remainder, but as against the heir, all collateral warranties, by any ancestor who had no estate of inheritance in possession. The statute of Anne was re-enacted in NewYork in 1788 ; but the revised statutes have made a more thorough reformation, for they have abolished both lineal and collateral warranties, with all their incidents, and made heirs and devisees answerable only upon the covenant or

[graphic]

a Co. Litt. 365, a.

b 2 Blacks. Com, 301, 302,
. c Vol, i, 739. sec. 141.
Vou. IV.

58

« ElőzőTovább »