benefitted, the deed would become absolute, though the party delivering were to say in express terms that he

Where, moreover, a deed is delivered as an escrow, although, as is stated in the text, it relates back to the time of the original delivery (Forster v. Mansfield, 4 Metcalf, 412; Graham v. Hughes, 13 Johns. 235), yet it must be borne in mind that this is for certain purposes only-that this fiction is resorted to in cases of necessity, to prevent injury and uphold the deed; as, for instance, where a feme sole delivers a deed as an escrow, and marries before the condition is performed, it is her deed from the first delivery, as otherwise her marriage would defeat it, Perkins, 139-140; "for in such case from necessity, and ut res magis valeat quam pereat, to this intent by fiction of law, it shall be a deed ab initio, and yet in truth it was not her deed until the second delivery." Butler & Baker's case, 3 Coke, 36 a. Hence, in accordance with the maxim, in fictione juris semper equitas existit, such relation back will not operate to defeat the rights of third persons attaching in the interval; Frost v. Beckman, 1 John. Ch. 296; Green v. Putnam, 1 Barbour, 504; Lewis v. Taylor, Riley's Ch. 179; Carr v. Hoxie, 5 Mason, 60; Merrills v. Swift, supra; and thus in Jackson v. Rowland, 6 Wendell, 666, where a deed was delivered as an escrow, and previously to its subsequent absolute delivery a judgment was obtained against the grantor, under which the land was sold, it was held that the purchaser under this judgment took a good title to the land, and so in Shirley's Lessee v. Ayres, 14 Ohio, 307.

Where a deed is rejected by the grantee, the title revests in the grantor, provided the dissent be made by the party really in interest. Thus, where a conveyance was to A. to the use of B., A.'s dissent was not allowed to defeat the use limited to B.; Gorton's case, 2 Roll. Ab. 789, pl. 7. In these cases of rejection the question also arises as to intermediate interests and estates created by the deed. In Thompson v. Leach, 2 Ventries, 201, it was finally held in the House of Lords, reversing the judgments below, that a deed of surrender by tenant for life to a remainder man, barred intermediate contingent remainders, though the grantee rejected the deed when he knew of it; and in Read v. Robinson, 6 Watts & Sergeant, 329, a debtor executed a general assignment for the benefit of his creditors, and delivered it to one of his sons, with instructions to take it to one Ward, who had been making out his father's accounts. Ward took the deed to the assignee, who refused to receive it, and said he would have nothing to do with it. An assignee was then appointed by the Court, who brought trover against the executor of the grantor's will, executed after the assignment. The Court below ordered a nonsuit, on the

[*11]

intended it to be *conditional only; for it is impossible by words to get rid of the legal operation of the delivery; and therefore in Holford v. Parker, Hob. 246, where the defendant in debt on bond endeavoured to set up a delivery as an escrow to the obligee himself, the Court thought that the plea was so clearly bad, that they would not hear any argument upon the subject. Where, however, the deed is delivered to a third person as an escrow, the delivery is, as I said, conditional, and when the condition has been performed, it becomes absolute and takes effect, not from the date of performing the condition, but from the date of the original delivery; so much so, that it has been held, that where a bond was delivered upon condition, and the obligor and obligee were both dead before the condition was performed, yet on that event happening, it became the deed of ground of the refusal of the assignee; but this judgment was reversed by the Supreme Court, which held, that although by the rejection the title might have been remitted to the grantor in case the grantee were the party beneficially interested, yet that the instrument being a trust for creditors, the latter were the parties in interest, and that by the transmission of the deed for acceptance to the assignee, the title instantly passed at law, and it could not be divested by the subsequent disagreement by the assignee; thus showing, as was said by the Chief Justice, in speaking of Thompson v. Leach, "that intermediate interests may fasten on the title, which it is not in the power of the grantee's disagreement to unclasp."

It has been suggested by Professor Greenleaf, in his edition of Cruise on Real Property (Tit. xxxii. ch. 1, § 25, note), that Thompson v. Leach was not the case of the grant of an estate from the absolute owner to a stranger who had no previous interest in it, but it was the annihilation of a particular estate in favour of a person to whom, on the termination of that estate at that time, by what mode soever, the whole property would belong by its original limitation, and that the case of Read v. Robinson was rather decided upon a local statute, authorizing the Court, in case of renunciation or refusal of a trustee, to appoint a new one in his place. The Court did not, however, rest its decision wholly on that ground.

the deceased obligor, so as to create a charge upon his assets as against his representatives.

(See Graham v. Graham, 1 Ves. jun. 274; Froset v. Walsh, Bridg. 51.) (a)

*Such, then, being the essentials of a deed,

[*12] writing on paper or parchment, sealing, and

delivery, it is right to add that, for the sake of convenience, deeds are divided into two classes, Deeds Poll and Indentures; a Deed Poll being (as Littleton informs us,

(a) It is no longer necessary to say that a writing is an escrow at its delivery, in order to render it one, though the law is otherwise stated in Sheppard's Touchstone. It is not requisite that this be done by express words, but the facts attending the execution and the result of the transaction may be looked at, and although the delivery were in form absolute, yet if it can reasonably be inferred that it was delivered not to take effect as a deed till a certain condition was performed, it will nevertheless operate as an escrow; Bowker v. Burdekin, 11 M. & W. 146, per Parke, B.

1 The point decided in Bowker v. Burdekin was that a deed which was executed as an absolute conveyance, would not the less be an act of bankruptcy, because, on looking at the form of the deed, the conclusion might possibly be come to that the parties did not contemplate that the deed should operate as an act of bankruptcy unless the whole partnership effects were conveyed. The remark cited supra, was said, by Baron Parke, to be the result of the cases of Johnson v. Baker, 4 Barn. & Ald. 440, 6 E. C. L. R.; and Murray v. The Earl of Stair, 2 Barn. & Cress. 82, 9 E. C. L. R., in both of which cases, the instrument was not delivered to the party interested, but left with a stranger; and it must not be inferred from the remark in Bowker v. Burdekin, that a deed purporting to be absolute, and delivered to a party, can by parol evidence, be shown to have been conditional, as the contrary was expressly held in Ward v. Lewis, 4 Pickering, 520, where an insolvent debtor having executed an assignment for the benefit of his creditors, which was found in the hands of the assignee, it was held that the deed could not operate as an escrow, because the prima facie evidence was that it was delivered to the party, and that parol evidence was inadmissible to show that the assignment was meant to take effect only upon the assent of the majority of the creditors.

at sect. 370), "that which is executed by one party only: an indenture, by several contracting parties." The names indeed of Deed Poll and Indenture were, as you probably all know, derived from the circumstance that the former was shaved or polled, as the old expression was, smooth at the edges, whereas the latter was cut or indented with teeth like a saw; for, in very old times, when deeds were short, it was the custom to write both deeds on the same skin of parchment, and to write a word in large letters between the parts, and then, this word being cut through, saw-fashion, each party took away half of it; and, if it became necessary to establish the identity of the instrument at a future time, they could do so by fitting them together, whereupon the word became legible. However, this, though the origin of the word indenture, has become a mere form; and though, as you are all aware, such instruments are still indented by nicking the edge of the parchment, not teethwise, but in an undulating line, that is a mere form, and might be done in Court during the progress of a trial, if it had been forgotten till then.

There are one or two peculiarities in the [*13] *question of a contract made by deed, which as they apply to all contracts by way of deed, this is the proper place to notice.

In the first place, a Contract by Deed requires no consideration to support it; or perhaps it might be more correct to say that the law conclusively presumes that it is made upon a good and sufficient consideration.1

The proposition in italics, was properly qualified by the lecturer in the remainder of the sentence. At common law no consideration was requisite to the validity of a deed, but since the introduction of conveyances taking effect by virtue of the statute of uses, courts of equity, and then courts of law, have held a consideration necessary to support such an instrument. It need not be expressed in the deed, but may

The importance of this arises from the strong line of distinction it creates between Contracts by Deed and Simple Contracts. For a simple contract, that is, a contract by words or by writing not under seal, requires, as I shall hereafter have occasion to explain more at length, a consideration to support it and give it validity. For instance, suppose a written promise in the words ;—" I, A. B. promise C. D. that I will pay the debt he owes to E. F." This promise would be absolutely void, unless it could be shown to have been made in consideration of something given to A. B. for making it; for it would be a promise by him to undertake a liability without any consideration or recompense whatever; and if he neglected to perform it, no action would lie against him, for the maxim ex nudo pacto non oritur actio would intervene for his protection. But if to that very instrument, conceived in those very words, the additional solemnity of sealing and delivery were added, so as to make it a deed, it would become a good and binding covenant on which an action might be

[*14] *supported (see Fallowes v. Taylor, 7 T. R. 475), and this is on account of the greater formality be proved. But if expressed, the language of the instrument, so far as the legal effect of the deed is concerned, is conclusive, (Preston on Abstracts, 14), and although in America, there is a numerous class of cases deciding that the consideration may, by parol, be shown to be greater or less, than is expressed (see infra, note 1, to page 17), yet on neither side of the Atlantic is such evidence admitted to defeat the legal effect of the deed as between the parties; Wilt v. Franklin, 1 Binney, 502; Hurn v. Soper, 6 Harris & Johns. 276. Where the rights of creditors step in, the rule is different; Preston, supra, 1 Am. Lead. Cases, 1. This is merely mentioned, in order that conclusions might not be drawn from the text which the lecturer did not mean to convey, and on page 81, infra, he refers to the. subject again. It may be here observed that there is another class of instruments which prima facie presume a consideration equally with specialties, viz., negotiable instruments. See Mr. Smith's remarks, infra, p. 100.