Page:The American Cyclopædia (1879) Volume V.djvu/759

 DEED 755 other in addition to a pecuniary consideration, it is necessary that there should be some ex- Sression in the deed to warrant it, as "for ivers other considerations." These rules, which had respect to deeds of bargain and sale, will generally apply to the simpler forms which have been substituted. A deed was at common law the most artificial of all forms of contract. Certain operative words belonged to each of the different conveyances, and no others could be used with the same legal effect, as enfeoff or give (feqffavi or dedi), in the conveyance of the fee ; give or grant (dedi or concessi), in the conveyance of incorporeal hereditaments ; demise, grant, and to farm let, in a lease ; and so of others. A second peculiarity was that certain obligations resulted from the use of these terms without being otherwise expressed, which were called covenants in law. Thus to the word "enfeoff" or "give" was annexed a warranty by which the grantor vouched for the title, and upon failure thereof was bound to render lands of equal value ; but this being by statute limited to the grantor, an express clause of warranty was introduced into the deed in order to bind his heirs. This gave rise to what Lord Coke declared to be "one of the most curious and cunning learnings of the law." The heir was bound upon the presumption of law that he had received from his ancestor an equiv- alent ; and though he was not compelled upon failure of title to render an equivalent to. the grantee unless he had himself received other lands by descent from the warranting ancestor, yet he was barred from making a claim to the lands warranted if he might have derived title from him who made the warranty. The same rule was unjustly extended to a case where the title to the warranted lands could not by possi- bility have come from the warrantor ; as when the husband, having an estate for life as tenant by the curtesy in lands belonging to his wife, conveyed with warranty, the son who would have taken as heir of the mother was barred from claiming the estate. This is the doctrine of lineal and collateral warranties, to understand which fully it is necessary to bear in mind that it was first introduced for the purpose of avoid- ing the old feudal rule of non-alienation of lands without consent of the heir. By various statutes in England, collateral warranties are now abrogated, except when assets have de- scended from the ancestor who warranted. Both lineal and collateral warranties have been abolished in the state of New York, and it is further declared that no covenant shall be im- plied in any conveyance of real estate, and heirs and devisees are liable upon the express covenant of the ancestor or testator only to the extent of lands which descend or are de- vised to them. Corresponding statutes have been adopted in many of the other states. In the absence of such statutes it is held that the word " give " implies a warranty during the life of the grantor; that the words "grant, bargain, and sell " do not imply a covenant of title in a conveyance in fee, but that "grant" or " demise " does imply such a covenant in a lease for years. Express covenants have both in England and this country taken the place of the ancient warranty. The covenants usu- ally inserted are these : 1, that the grantor is lawfully seized ; 2, that he has good right to convey ; 3, that the land is free from encum- brances ; 4, that the grantee shall quietly en- joy ; 5, that the grantor will warrant and de- fend. These are personal covenants, and the remedy for a breach is only against the cove- nanter or against his heirs or assigns to the ex- tent of lands descended or devised. The cov- enants of warranty and for quiet enjoyment are broken only by actual eviction; hence they are said to run with the land, and may be taken advantage of by the heirs or assignees of the grantee. But the other covenants, not being prospective, but being broken, if at all, at the time of the execution of the deed, become what are called choses in action, and are not assignable. The measure of damages for a breach of these covenants is the price paid for the lands with interest, the rule being found- ed upon the supposed value of the lands at the time of the execution of the deed ; and the rule is the same although the land has since risen in value, or the grantee has himself made improvements. The covenant against encum- brances may be an exception, as the damages recoverable is the sum paid to discharge the encumbrance, and this may in some cases ex- ceed the consideration or price of the lands. As to the parties to a deed, the general rules have been stated in the article CONTRACT. An important innovation has, however, been re- cently made in many of the states in respect to the capacity of a married woman to convey, which will be more properly considered under the title HUSBAND AND WIFE. The recording of deeds is universal in this country; and although the suggestion was derived from a local practice in some parts of England, yet it is still very limited in that kingdom, being probably uncongenial to the large landed pro- prietors, who usually have private family ar- rangements which they would be unwilling to make subject to public inspection. For the purpose of recording, it is a requisite in all the states of the United States that the deed should be acknowledged or proved before some officer authorized to take such acknowledgment or proof, whose certificate is to be affixed to the deed; and in several of the states two sub- scribing witnesses are required. In some states a subscribing witness is not required when the deed is acknowledged, but is necessary if the deed is to be proved for the purposes of record. The general provision is, that an unrecorded deed is inoperative against a subsequent pur- chaser in good faith and for a valuable consid- eration, whose deed shall be first recorded. It is, however, understood that actual knowledge of a previous deed by the subsequent pur- chaser, or such notice as should have put him