Composition Deed. Agreement of Creditors. and the said party of the second part, and his heirs, executors and administrators, shall continue to be bound by the covenants and agreements herein contained, in the same manner, for such further period, to all intents and purposes, as if the whole term had been originally limited for that purpose.. XI. Provided always, nevertheless, and these presents are upon this express condition, that if the said Y. Z. shall die within the period aforesaid, or if he shall make default in performance of either of the covenants or agreements hereinbefore contained on his part to be performed, or in case any of the creditors of the said Y. Z. whose debts respectively exceed the sum of dollars (except only such of them as having other securities shall choose to rely thereon), shall not duly execute or otherwise accede to these presents [or, if all the intended parties are named in the caption, say, or in case any of the hereinbefore named parties of the first part shall fail to execute these presents] within months next after the date hereof, then, and in either of the said cases, this indenture, and every thing herein contained, so far as the same respectively tends to restrain the said creditors from suing for and recovering his, her or their respective debts, within the time aforesaid, shall be absolutely void. IN WITNESS [etc., as in Form 640]. 642. Minute of Creditors' Meeting Agreeing On a Composition. At a meeting of the creditors of Y. Z., of 18, at merchant, held on the day of it is agreed as follows: that is to say, we, the creditors of the said Y. Z., whose names are hereunder written, severally agree for ourselves, and for our respective executors, administrators, partners and assigns, to and with the said Y. Z., his executors and administrators, to accept and receive the sum of cents on the dollar for all that he owes to us, the same to be in full satisfaction of the debts or sums severally due to us from him, provided that the said sum of cents for every dollar be paid severally unto us, or to our respective partners, executors, administrators or assigns, within the space of days from the day of the date hereof; and in default thereof, this agreement, and every thing herein contained, shall be void and of none effect towards him and them of us, to whom any such default of payment shall happen to be made. IN WITNESS [etc., as in Form 640]. General Principles concerning Deeds. CHAPTER XXVIII. DEEDS. The word "DEED," in its broadest signification, imports any instrument in writing, signed, sealed and delivered, as the act of the person making it. The term is more commonly used of conveyances of land, in contradistinction to bonds, mortgages, leases, powers of attorney, etc.; and accordingly, in this work, such other instruments form the subjects of separate chapters. Throughout the United States, the form of conveyance is usually what is known in English conveyancing as the bargain and sale;-such an instrument, in its orderly form, states that the one party, naming him, in consideration of a specified sum of money, the receipt of which is acknowledged, grants, bargains and sells to the other party, naming him, certain described premises, with such appurtenances, upon such conditions, or subject to such reservations, as may be expressed; to be held by the grantee for life, or by him and his heirs and assigns forever, or upon trust, etc., or otherwise, according to the estate intended to be conveyed. Then follow such covenants respecting the title to the property or the use of it, as the parties agree upon; and in witness of the whole, the grantor, and sometimes the grantee also, signs the instru ment. The first requisite of a valid deed is, that there be competent parties to contract, and that they be sufficiently designated in the instrument. If the parties upon either side are copartners, their designation and signature should be by their individual names, not by the firm-name. Secondly. There should, in order to sustain a deed as against creditors and subsequent purchasers, be a consideration, and it is advisable that the consideration be expressed. Where there is no actual consideration, it is usual to insert a nominal one, commonly one dollar. Thirdly. The conveyance must be reduced to writing upon paper or parchment. The first part of the instrument,-which states the names of the parties, the consideration, the transfer, and the property transferred, is termed the premises. The habendum, which usually follows, declaring what estate the grantee is to have, is a mere form, which has no efficacy if the premises indicate the estate intended to be vested. The usual covenants as to title are: that the grantor is lawfully seized; that he has good right to convey; that the land is free from encumbrances; that the grantees shall quietly enjoy; and that the grantor will warrant and defend the title against all lawful claims. These are more fully treated in the chapter of COVENANTS than in this chapter. Lastly, to make the deed operative, it must be duly executed and delivered; and by the law of some States, attestation by witnesses, acknowledgment by the grantor, or proof by the witnesses, and record, are also essential. The due execution of a deed requires the signature of the grantor, which may be made by his own hand, or by the band of another, writing his name in his presence and by his direction, or by the hand of an agent empowered by deed. To the signature, a seal must be affixed in some of the States. In the absence of any regulation to the contrary, the seal must be an impression made upon wax or a wafer, affixed to the paper. In some of the States, however, the word " Seal," or a printed or written scroll in imitation of a seal, is sufficient. In others, chiefly Western and Southern States, the use of seals is wholly dispensed with. Where there are several signatures, it is best to affix a seal for each; but one will suffice for all, if the intention to use it so is made apparent. If actual seals are affixed to the instrument, words in the conclusion indica General Principles. ting that the parties have affixed their seals are not necessary (a) though it is usual always to insert them. In some of the States, the sufficiency of a scroll as a seal depends on whether such words are inserted. The seals are usually affixed by the conveyancer in preparing the instrument. If the paper is sent away for execution, it is a convenient practice to mark on it, in pencil, the proper places for the respective signatures, and the number of witnesses required. If the grantor is an illiterate person, or in any case, if he requests it, the deed must be read over to him before its execution; and all blanks should be filled before execution, and any material erasures or interlineations should be noted at the foot, just above the signatures of the attesting witnesses. After an attestation and acknowledgment as required by law, the parties have not power, even by consent, to make alterations in any material point without attesting and acknowledging anew. The delivery of a deed is essential to give it operation; and in general a deed will not take effect, so as to vest the estate or interest intended to be conveyed, except from the time of its delivery. In this respect, the date, which is not in itself an essential part of a deed, is unimportant. Delivery and an acceptance by the grantee are, however, presumed from slight circumstances. A declaration made by the grantor, in the presence of the witnesses, upon executing a deed, that he does deliver it, though he retains possession at the time, will be sufficient to throw the burden of disproving the delivery upon the party dis puting it. If the delivery is intended to be conditional, so as not to take effect immediately, it must be made to some other person than the grantee or his agent. It is the practice of the most careful conveyancers to cause the grantor, on executing the deed, to declare in words, in the presence of the witnesses, that he executes and delivers it as his act and deed. Such a formula, though not essential, is a convenient way of preventing controversy as to the fact of delivery. Attestation by witnesses is not essential to constitute a deed at common law, and when not required by the terms of a power under which a deed is made, or by statute, a deed is valid without attesting witnesses. Most of the States, however, have adopted the rule that to render a deed valid against others than the grantor and his heirs, it must be attested by one or more witnesses, unless it is acknowledged by the grantor; and as the attestation of witnesses affords such an easy and effectual mode of proof, enabling the grantee to supply the want of a sufficient acknowledgment, and adds greatly to the credit of a deed, prudence requires that every deed be so attested.(b) Persons who are disinterested and competent should be selected as witnesses.(c) It is generally understood that a subscribing witness is one who was present when the instrument was executed, and who at that time subscribed his name to it as a witness. He need not, however, be present at the moment of the transaction. If he is called in by the parties immediately afterwards, and upon being told by the grantor that it is his act, and requested to subscribe as witness, he then does so, it is a sufficient attestation, the whole being regarded as one transaction. The witnesses should in general attest the delivery as well as the execution. In some of the States, however, it will be observed that the statute speaks only of attesting the signing and sealing. Where a deed is delivered in escrow, a written memorandum of the condi (a) Goddard's Case, 2 Co., 5; Milldam Foundry v. Hovey, 21 Pick., 417; 85 Me., 260. (b) Dole v. Thurlow, 12 Metc., 157. (c) As to whether interest or incompetency is fatal, compare Winsted Savings Bank v. Spencer, 26 Conn., 195; Johnson v. Turner, 7 Ohio, 568. In Corbett v. Norcross (35 N. H., 99), it was held that signature as witness by the wife of the grantor was a nullity. And see Townsend v. Downer, 27 Vt. (1 Will.), 119. Analysis of the Chapter of Deeds. tions inserted in the witnesses' attestation may be a convenient method of preserving evidence of the fact; but such a memorandum is not essential.(d) Acknowledgment.-The formalities above stated will, as a general rule, complete the transfer according to the tenor of the instrument, so far as concerns the immediate parties to the instrument and their heirs. But in order to protect fully the rights of others, registry is necessary, and a preliminary condition to the registry of a deed is its due acknowledgment or proof before the proper officer. It is to be added, also, that by the law of most of the States, a deed by a married woman is without any validity until it has been acknowledged by her in person before such officer. The subject of ACKNOWLEDGMENT AND PROOF forms a separate chapter, where the rules on this point adopted in the several States are indicated. It is the duty of the grantor, or person who has contracted to give the deed, to procure the due acknowledgment or proof of its execution, and such incidental certificates as may be necessary to entitle the deed to be put on record at once.(e) In the following pages, we give, first, in alphabetic order of the names of the States, short or peculiar forms, and special rules relating to deeds, which are established by statute or practice in these States respectively. These forms are adapted to the most common cases only, and present the local peculiarities usual in common deeds. Following these are a copious collection of forms conformable to the methods of conveyancing used in the State of New York and the numerous States in which the same forms are in vogue. These are adapted to a great variety of cases involving peculiar parties, considerations, property, estates and conditions. These, although more prolix than is agreeable to the practice of some other States, are, in general, valid and sufficient in all the States and Territories. With due attention to the directions given for the execution of deeds for particular States, and, in case of statutory conveyances, to the provisions of the acts under which the conveyance is made, these may be safely used as sufficient, in matter of form, for lands in any jurisdiction within the Union, in the cases to which they are respectively adapted. I. FORMS SANCTIONED BY THE STATUTES OR PRACTICE OF PARTICULAR STATES, AND DIRECTIONS FOR EXECUTION. (d) Baldwin v. Potter, 2 Root, 81; Ray- (e) Smith v. Smeltzer, 1 Hilt., 287. mond v. Truth, 5 Conn., 555. 819 820 820 820 820 320 |