Deed

Deed is an instrument in writing or print upon paper or parchment duly sealed and delivered. The name for a deed in the law French of Littleton and others is fact, i.e. factum, a thing done, of which deed is the translation. Deeds are of two kinds, indented and poll - a deed indented is termed an indenture, and has (or should have) a waving line cut teeth fashion on one of the edges of the material upon which it is written, usually the top edge, and when the deed consists of more sheets than one on the first sheet only. This formality is, however, often lost sight of, and is of little importance. Objection was once made to a deed indented - that it was not indented (i.e. not an indenture). The learned judge before whom such objection was made simply asked for a pair of scissors and himself healed the difficulty. The term indenture also implies that the deed is of two parts, i.e. two parts or copies exactly alike, and the two parts were divided by a line so as to afford additional means of authentication; but except in the cases of leases, marriage settlements, partnership deeds, and some few others, there are seldom more parts than one. The cost of deeds is so heavy, that frequently where two or more parties are equally interested in a deed, it is deposited with some person for their joint use.

A deed poll is cut even or polled at the edges, and is usually of one part only, that is, the deed of one party or several parties of the same part. The form commences as in a declaration, "Know all men by these presents." The operative words of an indenture are "This indenture made between (parties) witnesseth." A deed to be in all respects absolute and irrevocable must be founded on a valuable or good consideration.

A deed should be read over and explained to the parties before execution, which consists of signing, sealing, and delivery of it. Signing is not absolutely essential to the validity of a deed, though it is required as to less formal instruments by the statute of frauds; but sealing is absolutely essential, this being the most ancient mode of authentication and in use from the earliest times. At the present day the seal is no real security against fraud, for any impression upon wax or other substance employed is sufficient. The last requisite to the due execution of a deed is delivery, except in the case of a corporation, where sealing with the common seal has that effect. The usual form of delivery of a deed is for the executing party to say, with his finger upon the seal, "I deliver this as my act and deed." The delivery means that the person whose act and deed the instrument is, and who is bound by it, delivers it to the person who is taking some benefit thereunder. All the parties whose deed the instrument is must deliver it as their deed.

A deed may also be delivered as an escrow, i.e. to a third person to keep till something is done by the grantee; when the condition is performed the deed becomes effectual. A deed takes effect from the delivery and not from the date. Enrolment and registration are necessary in some cases by statute, and the Revenue laws have imposed certain stamps upon deeds the absence of which renders them inadmissible in evidence.

After execution a deed may become void by erasure, interlineation, or other alteration in any material part, but, generally speaking, such alteration will be presumed to have been made before the execution; at any rate if nothing appears to the contrary. A grantee may also disclaim the grant or disagree thereto, and a deed may be destroyed or cancelled, but such destruction or cancellation will not revest the thing granted in the grantor, though all obligations established by the deed between the parties will be at an end. If the deed has transferred property, the property continues transferred, just as if the deed existed; but if the seal be destroyed, the covenants which are to be performed are destroyed, because when any legal proceeding is taken upon the deed, it must be pleaded as a deed, and it is not the deed of the party whose deed it professes to be if that mark is destroyed which is the legal evidence of its being his deed. But as long as the seal is on the deed, and it exists entire, so long is the party whose deed it is bound by the covenant.

Acknowledgment of a deed is required in certain cases by a married woman; such acknowledgment must be taken before a judge or commissioner (formerly two were required), specially appointed for the purpose of her examination as to its contents apart from her husband, and she must declare it is executed of her own freewill. The necessity, however, for this is now much curtailed by virtue of the Married Women's Property Act, 1882.