chandize (3), in cafe he be an alien friend: all other purchases (when found by an inqueft of office) being immediately forfeited to the king".

PAPISTS, laftly, and persons profefling the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III. c. 60. within the time limited for that purpose, are by ftatute 11 & 12 W. III. c. 4. disabled to purchase any lands, rents, or hereditaments; and all eftates made to their ufe, or in truft for them, are void".

II. WE are next, but principally, to inquire, how a man may aliene or convey; which will lead us to confider the feveral modes of conveyance.

IN confequence of the admiffion of property, or the giving a separate right by the law of fociety to those things which by the law of nature were in common, there was neceffarily fome means to be devised, whereby that separate right or exclufive property fhould be originally acquired; [294] which, we have more than once obferved, was that of occupancy or firft poffeffion. But this poffeffion, when once gained, was also neceffarily to be continued; or else, upon one man's dereliction of the thing he had feised, it would again become common, and all those mischiefs and contentions would enfue, which property was introduced to prevent. For this purpose therefore, of continuing the poffeffion, the municipal law has established defcents and alienations: the former to continue the poffeffion in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those perfons, to whom the proprietor, by his own voluntary act, fhould choofe to relinquish it in his life-time. A tranflation, or transfer, of property being

(3) It seems that he has not even this exception in his favour. Harg. Co. Litt, 2.

- thus admitted by law, it became neceffary that this transfer fhould be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all: or concerncing the perfons, by whom and to whom it was transferred; or with regard to the fubject matter, as what the thing transferred confifted of; or, laftly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this tranflation of property are called the common affurances of the kingdom; whereby every man's eftate is affured to him, and all controverfies, doubts, and difficulties are either prevented ́or removed.

THESE Common affurances are of four kinds: 1. By matter in pais, or deed; which is an affurance transacted between two or more private perfons in pais, in the country; that is (according to the old common law) upon the very fpot to be transferred. 2. By matter of record, or an affurance tranfacted only in the king's public courts of record. 3. By special custom, obtaining in fome particular places, and relating only to fome particular fpecies of property. Which three are such as take effect during the life of the party conveying or affuring. 4. The fourth takes no effect, till after his death; and that is by devife, contained in his last will and teftament. We fhall treat of each in it's order.

CHAPTER THE TWENTIETH.

OF ALIENATION BY
BY DEED.

I

N treating of deeds I fhall confider, firft, their general nature; and, next, the feveral forts or kinds of deeds, with their respective incidents. And in explaining the former, I fhall examine, first, what a deed is; fecondly, it's requifites; and thirdly, how it may be avoided.

I. FIRST then, a deed is a writing fealed and delivered by the parties. It is fometimes called a charter, carta, from it's materials; but most usually, when applied to the transactions of private fubjects, it is called a deed, in Latin factum,

Tox, becaufe it is the moft folemn and authentic act that a man can poffibly perform, with relation to the difpofal of his property; and therefore a man fhall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once fo folemnly and deliberately avowed. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each fhould be cut or indented (formerly in acute angles inftar dentium, like the teeth of a faw, but at present in a waving line) on the top or fide, to tally or correfpond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concife than at prefent, it was afual to write both parts on the fame piece of parchment, with fome word or letters of the alphabet written between them; through which the parchment was cut, either in a strait or

a Co. Litt. 171.

24

b Plowd 434.

indented

BOOK 11. indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated fyngrapha by the canonifts; and with us chirographa, or hand-writings d; the word cirographum or cyrographum being usually that which is divided in making the indenture: and this cuftom is ftill preferved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into ufe, without cutting through any letters at all; and it feems at prefent to ferve for little other purpose, than to give name to the fpecies of the deed. When the feveral parts of an indenture are interchangeably executed by the feveral parties, that part or copy which is executed by the grantor is usually called the original, and the reft are counterparts: though of late it is moft frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or fhaved quite even; and therefore called a deedpoll, or a fingle deed.

II. WE are in the next place to confider the requifites of a deed. The firft of which is, that there be perfons able to contract and be contracted with, for the purposes intended by the deed; and also a thing, or fubject matter to be contracted for; all which must be expreffed by fufficient names". So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a leffor, a leffee, and a thing demifed.

SECONDLY; the deed muft be founded upon good and fufficient confideration. Not upon an ufurious contract ; nor upon fraud or collufion, either to deceive purchafors bona fide, or just and lawful creditors'; any of which bad confiderations will vacate the deed, and subject such persons, as put the fame in ure, to forfeitures, and often to imprisonment. A deed alfo, or other grant, made without any confideration, is, as it were, of no effect; for it is conftrued to inure, or to

e Lyndew. l. 1. f. 10, c. 1,

d Mirror. c. 2. § 27.

Ibid. Litt. § 371, 374.

# Co. Litt. 35.

8 Stat. 13 Eliz. c. 8.

h Stat. 27 Eliz. c. 4.

i Stat. 13 Elia. • 5%

be effectual, only to the use of the grantor himself * (1). Thé confideration may be either a good or a valuable one. A good [ 297 ] confideration is fuch as that of blood, or of natural love and affection, when a man grants an estate to a near relation ; being founded on motives of generofity, prudence, and natural duty; a valuable confideration is fuch as money, marriage, or the like, which the law efteems an equivalent given for the grant1; and is therefore founded in motives of justice. Deeds made upon good confideration only, are confidered as merely voluntary, and are frequently fet afide in favour of creditors, and bona fide purchasors.

THIRDLY; the deed must be written, or I prefume printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written. on ftone, board, linen, leather, or the like, it is no deed". Wood or stone may be more durable, and linen less liable to k Perk. § 533. m Co. Litt. 229. F. N. B. 122.

3 Rep. 83.

(1) This I conceive is only true of a bargain and fale; for "herein it is faid to differ from a gift, that this may be with"out any confideration or caufe at all; and that hath always "fome meritorious cause moving it, and cannot be without it." Shep. Touch. 221. But otherwife a voluntary conveyance is good both in law and equity. Tr. of Eq. b. 1. c. 5. S. 2. It used to be thought, if a perfon made a voluntary grant of lands, although he could not refume them himfelf, yet if he afterwards made another conveyance of them for a valuable confideration, that the firft grant would be void with regard to this purchafor under the 27 Eliz. c. 4. But it was determined by lord Mansfield and the court, that there must be some circumstance of fraud to vacate the first conveyance, the want of confideration alone not being fufficient. Cowp. 795.

But if a perfon is indebted at the time of making a voluntary grant, or becomes fo foon afterwards, it will be confidered fraudulent and void with respect to creditors, under the 13 Eliz. c. 5.

And if a perfon makes a voluntary grant and afterwards becomes bankrupt, whether he was indebted or not at the time, it will be void by 1 Jac. c. 15; and the eftate granted may be conveyed by the commiffioness to the affignees for the benefit of the creditors, 1 Atk. 93.

rafures;