Deed - Definition - Law Dictionary Home Dictionary Definition deed

Definition :

Deed [fr. d'd, Sax.; ded gaded, Goth.;daed, Dut.], a formal document on paper or parchment duly signed, sealed, and delivered. It is either an indenture (factum inter partes) needing an actual indentation [(English) Real Property Act, 1845 (8 & 9 Vict. c. 106), s. 5], reproduced by the Law of Property Act, 1925, s. 56 (2), made between two or more persons in different interests, or a deed-poll (charta de una parte) made by a single person or by two or more persons having similar interests. By the (English) Law of Property Act, 1925, s. 57, a deed may be described according to the nature of the transaction, e.g., 'this lease,' 'this mortgage,' etc., or as a 'deed' and not habitually by the word 'indenture.'

The requisites of a deed are these:-

(1) Sufficient parties and a proper subject of assurance.

(2) It must be written, engrossed, printed, or lithographed, or partly written or engrossed, and partly printed or lithographed in any character or in any language, on paper, vellum, or parchment, since these materials best unite the two qualities of durability and difficulty of concealing alteration or erasure.

(3) The language employed should be sufficient in point of law, intelligible without punctuation, and clear without the aid of stops or parentheses.

Usage has arranged the text of a conveyance inter partes in a formal and well-understood sequence; and although it is not absolutely necessary that a deed should be drawn in accordance with the generally received formulary, provided it exhibits the intention of the parties, yet it is not advisable to deviate from it unless in a matter of urgent necessity. A properly prepared deed, then, is arranged in the following parts:-

(a) Commencement or exordium, date and parties.

The commencement sets forth its style or character. The date follows in indentures and contracts, but is generally placed in the last or peroration-clause in a deed-poll. In any case, even if there be no date, or an impossible date, the deed takes effect from its actual delivery, of which extrinsic evidence is admissible. The parties are described by their several names, their rank, profession or calling, and their places of abode, except in the case of a peer. The assumption of any additional name should be stated so as to preserve identity on the face of the title. A mistake will not vitiate the instrument if the party can be identified by extraneous evidence, Nihil facit error nominis cum de crpore constat.

Every person who conveys any estate or interest, or enters into a covenant, or is to be bound by the deed, should be made a party to it.

Parties are classified in parts according to their several interests. Persons having joint-interests except in a deed of partition should be of the same part, but those having distinct though undivided interests should be of several successive parts. Those who are to transfer any interest or relinquish any right should come first, and amongst them, those having legal estates before those having equitable only, and the larger interests should precede the lesser. Then consenting parties and covenantors. After these, those who take any estate or interest, and, amongst these, trustees follow real owners. Lastly, those who are inserted to fix them with notice of the deed, as creditors, legatees, trustees, and executors.

When a person acts in two or more capacities, he should be named in distinct parts, according to such several capacities.

Husband and wife are generally of the same part except in separation deeds.

The (English) Real Property Act, 1845 (8 & 9 Vict. c. 106), s. 5, enacts that under an indenture executed after the 1st October, 1845, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the indenture. This has been extended by the (English) Law of Property Act, 1925, section 56, to any estate, interest in land or other property and the benefit of any condition or covenant respecting land or other property. The better opinion is that the s. relates to covenants only which run with the land or property. See COVENANT.

Before this statute, however, a person not named in an indenture could and still take a remainder, or a use, or the benefit of a trust, or any authority by a letter of attorney, or if he executes the deed, undertake any liability therein expressed to be undertaken by him, Halsbury, L. of Eng 'Deeds.' Under a deed-poll any person sufficiently designated may maintain an action under the deed for breach of any obligation or assurance therein expressed in his favour. A party named in a deed is bound by it if he accepts any benefit thereby assured to him even if he does not execute the deed. See Halsbury, loc. cit.

(b) Recitals. These are either narratives of past facts, or a statement of the purpose of the deed. They are not a necessary part of an assurance, yet they frequently become material as an aid to collect the intention of the parties to the instrument, and a key to its construction. Thus a recital may restrain the effects of general phraseology in the operative part of a deed, and although it is not evidence as against strangers, yet it may be conclusive as to the facts which it sets forth between the parties to it and those claiming under them.

(c) Testatum, * witnessing or operative clause, comprehending:-

1. The consideration and its receipt. When a deed contains more than one testatum, the whole consideration should generally be stated in the first, unless it can be apportioned amongst the different testata.

2. The name of the grantor.

3. The operative words of transfer.

4. The name of the grantee, with appropriate words of limitation (if any). See s. 56 of (English) Law of Property Act, 1925.

(d) The Parcels, i.e., the description of the property affected, with any savings or exceptions.

(e) General Words were inserted with sweeping clauses prior to the Conveyancing Act, 1881, under which a conveyance, in the 'general words,' enumerated all the particulars intended to pass to the grantee. S. 6 of that Act reproduced by s. 62 of the (English) Law of Property Act, 1925, enacts that a conveyance of land shall operate to convey, all 'buildings, erections, fixtures, commons,' etc., etc., and so dispenses with the enumeration of such particulars in the conveyance itself; and s. 63, reproduced by the (English) Law of Property Act, 1925, s. 63, in like manner dispenses with the 'estate clause' or clause conveying all the estate right etc., of the conveying parties.

All the parts which have been enumerated are as a whole technically denominated 'the premises' (pr'missa) or the matters which precede. The premises should name all the parties, as well active as passive, i.e., both grantors and grantees, and set forth with certainty the thing granted, with any exceptions or reservations. This word has also a popular sense, meaning the property granted by the deed.

In Scotland the 'testing clause' is the attestation; see infra.

(f) Habendum, limiting and defining the interest.

This part is a non-essential formality, expressing the extent of the grantee's interest in the thing granted. The grantee should be named, and he would take although not mentioned in the former part of the deed. While nothing can be limited in the habendum which has not been given in the premises, yet it may abridge, qualify, or enlarge the premises, but where they are repugnant, the premises will operate in preference to the habendum.

There is not any habendum in an appointment under a power or (before 1926) in a covenant to stand seised, or a simple declaration of uses, because such deeds themselves fulfil that office by limiting the estate to be created.

(g) Tenendum. This is usually joined with the habendum, but it is unnecessary, since the tenure is never expressed, except upon a sub-grant or lease reserving rent.

In annuity deeds and money assignments, the phrase 'To have, hold, receive, and take' is the common form of habendum.

(h) Declaration of Uses in deeds executed before 1926 operating by virtue of the Statute of Uses (27 Hen. 8, c. 10). A person may take an estate under this declaration, although not a party to the deed.

(i) Declaration of Trusts, when necessary.

(j) Declaration against Dower in purchase-deeds succeeded the limitation of the estate. This declaration, however, is now never inserted.

(k) Reddendum in leases, which reserves something to the grantor out of the estate transferred, such as rent.

The phrase 'yielding and paying' in a lease by indenture executed by the lessee will imply after entry a covenant to pay rent in the absence of one expressed (Platt on Covenants, pp. 50 et seq.) It is generally advisable, except in leases pursuant to statute, to reserve the rent at large, not specifying to whom made, since the rent will be annexed to the reversion and belong to the person for the time being entitled to the latter.

(l) Conditions, conditional limitations, provisos for cesser of interests, clauses of restraint, and for redemption, and special agreements, are generally next inserted, when stipulated for between the parties.

(m) Powers; e.g., a power to lease.

(n) Covenants. See COVENANT.

(o) The testimonium. In Scotland called the 'testing clause,' connecting the contents of the deed with the signatures and seals. See infra.

All these several parts, thus arranged, make up a formally prepared deed.

(5) The deed being engrossed, the next step is its execution, which consists of three acts, viz.:-

(a) Signing. This was not necessary before 1926 in cases where the Statute of Frauds (see FRAUDS, STATUTE OF) did not apply. Whether signing was necessary where that statute applied, or whether mere sealing was sufficient, is an open question. See Chitty on Contracts, 15th Edn. At pp. 89, 90, citing Cooch v. Goodman, (1842) 2 QB 580, and other authorities. A deed executed after 1925 must be signed. [(English) Law of Property Act, 1925, s. 73]

(b) Sealing, which is a Norman usage, and makes the assurance a specialty. It is, however, but a simple formality, but see CORPORATION, and (English) Law of Property Act, 1925, s. 74. There should be a distinct seal for every signature.

(c) Delivery, which complete the efficacy of the deed, and whence it takes effect, if, as we have already seen, there be a false, or impossible, or no date. See DELIVERY OF A DEED, post.

(6) The deed must be read before execution if any of the parties request it, otherwise it will be void, so far as the requester is concerned; and a false read-ing will avoid it so far as it was misread (1 Touch. P. 56). Seeing that the draft of a deed is usually submitted to the legal advisers of the several parties, to be approved of by them on their client's behalf, the request of reading seldom occurs. In strict practice, the engrossment is examined with the draft by the solicitors of the parties before an appointment for its execution is fixed.

(7) The attestation is not essential, unless it be required by a particular statute, or by the express terms of a power. See POWER. In practice, however, every deed is attested, in order to render it more easy of proof. It was expressly enacted by the repealed (English) Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 26, that it would not be necessary to prove by the attesting witness any instrument to the validity of which 'attestation is not requisite.'

A deed may be delivered as an escrow upon some condition precedent to its taking effect, but in that case it should not be delivered to the other party or parties under the deed, though it may be delivered to an agent or solicitor acting for all parties in the matter of delivery.

(8) The receipt-clause acknowledging the payment of the consideration money, if any, signed by the recipient, formerly always endorsed on the deed, is now rendered unnecessary by s. 54 of the (English) Conveyancing Act, 1881, reproduced by s. 67 of the (English) Law of Property Act, 1925, which provides that a receipt in the body of the deed shall be a sufficient discharge without any further receipt being endorsed on the deed.

(9) Extrinsic formalities.

Generally speaking, in localities where registration of titles is compulsory in regard to conveyances of land, including leases of land situate there and in regard to land charges which are required to be registered under the (English) Land Charges Act, 1925, a deed may become ineffectual to vest the legal estate in the grantee or lessee or to give a full legal title in rem against the world, unless the title or charge is registered. Before 1926 extrinsic formalities were necessary in some cases of transfer and other assurances such as enrolment in Chancery of grants by the Crown, bargains and sales of freeholds, pursuant to 27 Hen. 8, c. 16, or under the Land Tax Acts, gifts of land to charities under the (English) Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42), s. 4 (9), and disentailing assurances according to 3 & 4 Wm. 4, c. 74.

(10) The stamp does not strengthen the efficacy of a deed, but is required to render it admissible in evidence. A deed may be stamped before or after execution. See STAMPS.

Though a deed may be good in point of form, as apparently possessing the external and internal circumstances necessary to its validity, yet it may be rendered invalid from many causes, which may be thus classified:-

(I.) Those making it void ab initio, when it can never take effect; as

(a) Where it is wanting in any of the essentials such as want or capacity, or knowledge of the contents, or intention of the deed, or under a common mis-take of fact as to the existence or state of the subject-matter, it is then absolutely null against all persons.

(b) Where a party has made it under threat, for then it is void as to him.

(II.) Those making it voidable, not being void from the beginning; as

(a) By dissent of parties, for instance the repudiation of an infant's deed after majority.

(b) By dissent of strangers, as the grantee of a deed-poll or an indenture not executed by him, disclaiming the estate thereby given to him, or a husband repudiating his wife's purchase.

(III.) Those making it void by something ex post facto; as

(a) By an extra-judicial act, as a razure or interlinea-tion, or breaking off the seal, with the assent of the parties, or delivering up the deed to be cancelled. The act of a spoliator will not avoid a deed. To prevent any after-dispute, any alteration or inter-lineation made in a deed before execution should be particularized in the attestation clause. If a freehold estate have already passed by the deed, its cancellation will not divest such estate so as to revest it in the original owner; there must be a re-transfer to this effect.(b) By a judicial act, as where by a decision of a Court a deed is declared void by reason of fraud, or an illegal consideration, or that it attempts to derogate a prior and superior right.

The rectification or setting aside or cancellation of deeds or other written instruments, formerly part of the jurisdiction of the High Court of Chancery, is continued in the Chancery Division of the High Court of Justice by the (English) Judicature Act, 1873, s. 34. See now the J. Act, 1925, s. 55.

As to supplemental deeds, now very commonly used to save recitals, see (English) Conveyancing Act, 1881, s. 53, and s. 58 of the (English) Law of Property Act, 1925; and s. 74 ibid. for execution of instruments by corporations, and for a number of provisions as to the construction and effect of deeds generally, see the same Acts. Consult Key or Elphinstone, Prec