tion of blood or marriage exists;81 and, as before stated, a conveyance in words of release, void as such for want of an estate or possession in the releasee, will be supported as a conveyance by bargain and sale, or otherwise.82 This principle has also been adopted to support limitations of future estates which could not be supported unless the conveyance were regarded as operating under the Statute of Uses.88

II. FORM AND ESSENTIALS OF A CONVEYANCE.

A conveyance must identify the parties thereto and the land conveyed, and must contain words showing an intention that it is to transfer rights in the land. It must also be properly executed. It frequently, moreover, contains words limiting the estate to be taken by the grantee; and may likewise contain a reservation creating new rights in the land in favor of the grantor, such as easements or rights of profit.

No consideration is necessary to the validity of a conveyance not operating under the Statute of Uses. The conveyance may be set aside if induced by fraud or duress, or, in some cases, if executed under a mistake.

$379. General considerations.

All conveyances of freehold or leasehold interest in lands, other than certain leases for three years or less, must, by the Statute of Frauds, be in writing.84 In most if not all the states of this country there are statutes to the same effects

81 Crossing v. Scudamore, 2 Lev. 9, 1 Mod. 175; Horton v. Sledge, 29 Ala. 478; Bank of United States v. Housman, 6 Paige (N. Y.) 526; Eckman v. Eckman, 68 Pa. St. 460.

82 See ante, note 33.

83 Roe d. Wilkinson v. Tranmer, 2 Wils. 75, Willes, 682, 1 Gray's Cas. 494; Ward v. Wooten, 75 N. C. 413; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147.

84 29 Car. II. c. 3, §§ 1-3.

#5 1 Stimson's Am. St. Law, §§ 1560, 4143.

These statutes do not, however, as before stated, interfere with surrenders by operation of law.86

At common law, all written conveyances of land, as well as most other written instruments, were in the form of deeds, -that is, of instruments under seal,-and a deed was either a "deed of indenture" or a "deed poll." A deed of indenture was a deed made between two or more persons, while a deed poll was made by one person only.87 These terms are thus used in England at the present day, and they are occasionally so used in this country.

A carefully drawn conveyance usually consists of the fol lowing parts: At the commencement the names of the parties are stated,88 and the date is sometimes here given, though it is frequently placed at the end. Next come the recitals, if there are any, these being statements of fact explanatory of the transaction. A statement of the consideration and of its payment and receipt then follow,80 and, after this, the operative words of conveyance,90 with a description of the land conveyed,"1 and any exception therefrom.92 The parts thus far enumerated constitute what is known as "the premises." The premises are followed by the "habendum," which limits the estate to be taken by the grantee, and is usually

86 See ante, § 375.

87 Co. Litt. 229a. The word "indenture" originated in the fact that two copies of the deed were usually written on the same piece of parchment, with some word or letters written between them, through which the parchment was cut in an indented or waiving line. The words "deed poll" refer to a deed "polled" or shaven at the top. Subsequently, conveyancers adopted the practice, which still, it seems, prevails in England, of cutting all deeds between two or more parties in a waving line at the top. 2 Bl. Comm. 296; Williams, Real Prop. (18th Ed.) 150.

introduced by the words "to have and to hold."

Any decla

ration of trust which is sought to be made is here inserted. The "reddendum" or reservation then follows, after that the statement of any condition or power affecting the grant, and then the covenant or covenants of title.95 The conclusion usually consists of a formal reference to the execution, and the signatures and seals of the parties are then placed by them at the foot of the instrument.98 There is also, almost invariably, a certificate by an officer that the conveyance was acknowledged by the grantors.

97

Though a well-drawn conveyance usually contains all or most of these parts above referred to, a conveyance containing merely the names of the parties and words of conveyance, with a description of the land, if duly executed, is sufficient to vest at least an estate for life in the grantee." 98

380. Designation of the parties.

A conveyance should designate with certainty the name of the grantor, and this should regularly be done at the commencement. It is sufficient, however, if the name as given is sufficient to enable the grantor to be identified, and the fact that his name as it appears in the instrument differs from his actual name, or from the name signed thereto, does not invalidate the conveyance." A conveyance by the "heirs"

93 Post, $ 382.

94 Post, § 383.

95 Post, $$ 394-401.

96 Post, $$ 402, 403.

97 Post, $405.

98 Co. Litt. 7a; 4 Kent's Comm. 461.

99 Comyn's Dig. "Fait" (E 3); Erskine v. Davis, 25 Ill. 251; Nicodemus v. Young, 90 Iowa, 423; Houx v. Batteen, 68 Mo. 84; Rupert v. Penner, 35 Neb. 587; Jenkins v. Jenkins, 148 Pa. St. 216; Bierer v. Fretz, 32 Kan. 329.

(865)

of a decedent is sufficient, provided such heirs can be identified,100

It is generally held that, when two or more persons join in the execution of a conveyance, only such as are named in the body of the instrument will be regarded as parties thereto. This rule has usually been applied in the cases of conveyances by a husband, the joinder in the execution of which by the wife has been held to be insufficient to release her dower, or otherwise divest her rights;101 but the rule is applicable, for even stronger reasons, it would seem, in the case of strangers joining in the execution.102 The same necessity that the grantor be named in the conveyance does not exist, it would seem, in the case of a conveyance executed by and purporting to be the act of one person only, since the name of the grantor is put in "but to make certainty of the grantor, 108 and thero

100 Blaisdell v. Morse, 75 Me. 542.

101 Payne v. Parker, 10 Me. 178, 25 Am. Dec. 221; Stevens v. Owen, 25 Me. 94; Lothrop v. Foster, 51 Me. 367; Catlin v. Ware, 9 Mass. 218, 6 Am. Dec. 56, 3 Gray's Cas. 621; Leavitt v. Lamprey, 13 Pick. (Mass.) 382, 23 Am. Dec. 685; Greenough v. Turner, 11 Gray (Mass.) 334; Prather v. McDowell, 8 Bush (Ky.) 46; Agricultural Bank of Mississippi v. Rice, 4 How. (U. S.) 225; Batchelor v. Brereton, 112 U. S. 396; Cox v. Wells, 7 Blackf. (Ind.) 410, 43 Am. Dec. 98; Merrill v. Nelson, 18 Minn. 366 (Gil. 335); Stone v. Sledge, 87 Tex. 49, 47 Am. St. Rep. 65; Laughlin v. Fream, 14 W. Va. 322; Harrison v. Simons, 55 Ala. 510. Contra, Armstrong v. Stovall, 26 Miss. 275; Johnson v. Montgomery, 51 Ill. 185; Ingoldsby v. Juan, 12 Cal. 564; Elliot v. Sleeper, 2 N. H. 525; Woodward v. Leaver, 38 N. H. 29. In Burge v. Smith, 27 N. H. 332, a release of dower by the mere execution by the wife of the husband's deed is upheld, on the ground that, in that state, a contrary decision would overthrow many titles, but that this holding is wrong in principle is strongly asserted.

102 Harrison v. Simons, 55 Ala. 510. See Stone v. Sledge, 87 Tex. 49, 47 Am. St. Rep. 65; Batchelor v. Brereton, 112 U. S. 396. Contra Hrouska v. Janke, 66 Wis. 252.

108 Perkins, § 36.

can, in such a case, be no question that the person executing the conveyance is the grantor therein.104

The grantee or grantees must be named in the conveyance, or means for their identification furnished thereby.105 A conveyance to a deceased person is invalid;106 but a conveyance to the heirs of one deceased is sufficient, since their identity can be determined.197. On the other hand, one cannot convey land to the heirs of a living person, since they are incapable of identification.108

Name of grantee left blank.

At the common law, a deed, that is, an instrument under seal,-if delivered with a blank therein as to an essential part, is void, although this blank be afterwards filled by one having parol authority from the maker of the deed so to do; this being based on the theory that an authority to make an instrument under seal must itself be under seal.109 Apply

1

104 Elliot v. Sleeper, 2 N. H. 525. But see, to the contrary, Peabody v. Hewett, 52 Me. 33, 83 Am. Dec. 486.

So it would seem that a conveyance in the first person, though not naming the grantor, if signed by him, would be sufficient to divest his title. Such a conveyance was upheld, without any question as to this particular point, in Jackson v. Root, 18 Johns. (N. Y.) 60; Hutchins v. Carleton, 19 N. H. 487.

105 Wunderlin v. Cadogan, 50 Cal. 613; Wood v. Boyd, 28 Ark. 75; Simmons v. Spratt, 20 Fla. 495; Hardin v. Hardin, 32 S. C. 599; Wright v. Lancaster, 48 Tex. 250; Chase v. Palmer, 29 Ill. 306. See, as to conveyance to one under assumed name, Thomas v. Wyatt, 31 Mo. 188, Finch's Cas. 1075.

108 Lewis v. McGee, 1 A. K. Marsh. (Ky.) 199.

107 Shaw v. Loud, 12 Mass. 447; Hoover v. Malen, 83 Ind. 195; Boone v. Moore, 14 Mo. 421; Gearheart v. Tharp, 9 B. Mon. (Ky.) 31.

108 Booker v. Tarwater, 138 Ind. 385; Morris v. Stephens, 46 Pa. St. 200; Hall v. Leonard, 1 Pick. (Mass.) 27. But otherwise if the word "heirs" means children. Huss v. Stephens, 51 Pa. St. 282; Tharp v. Yarbrough, 79 Ga. 382, 11 Am. St. Rep. 439.

109 Sheppard's Touchstone, 54; Comyn's Dig. "Fait" (A 1); Hib blewhite v. McMorine, 6 Mees. & W. 200.