Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

Another kind of deed used in selling land is called an indenture. This is signed by all the parties, and copies are usually made and delivered to all of them. This deed also contains warrants or covenants like the one first described.

Another kind of deed is called a release or quit-claim. By this the grantor or party giving it conveys whatever interest he may have in the land. It is the deed always given by a mortgagee on the payment or discharge of his mortgage. It contains no warrants to do anything and therefore differs from a deed of warranty. Sometimes a person conveys a piece of land knowing that the title is defective which the purchaser, notwithstanding the defect, is willing to buy. The seller may safely give a quit-claim deed for he thereby sells only whatever interest he may have.

All the deeds above mentioned except an indenture, are signed only by the selling or granting party. They become effective by delivery. They are often called poll deeds.

Every grantor must append to his name a seal. Once a seal was of the utmost importance in the days of ignorance when persons knew not how to write and each person had a seal of his own. As distinctive seals have long since disappeared, seals have less significance than formerly, nevertheless many legal rules are founded on the distinction between sealed and unsealed instruments. Thus two written contracts may be exact duplicates except that one of them may have no seal. The law in most states regards the unsealed one as a mere oral or unwritten contract, to which are applied the same rules of evidence. The use of L.S., enclosed in brackets, thus [L.S.] is just as effective as a seal of wax or a wafer. In many states a corporation need not use its corporate seal, any other may be substituted. The federal rule especially requires the use of the corporate seal and that it be affixed by someone who was properly authorized to do this.

By statute the names of two witnesses are required, and when omitted the deed is not only defective, but in some states at least is void. A witness need not write his name in the grantor's presence, if asked to sign in the proper place as a witness this will suffice.

A lease of land is also a deed differing from those mentioned in conveying the use of land for a fixed period and on varying terms.

A deed should be completed before delivering it, the same rule applies to most legal writings. Unimportant alterations may be made, and if any are made, the question may prove difficult, are they important or not. Of course if both parties agree to them, the validity of the deed is not impaired. Whenever they do appear, in some states the law presumes they were made before delivering the deed, but this is not the rule everywhere.

Who can make or execute a deed? A minor cannot make a legal deed, and if he attempts to do so he can avoid or set it aside after he becomes of age whenever he acts with reasonable promptitude. If he does not thus act, his delay will be regarded as a ratifying of his previous action. What action will have this effect is a fact to be proved whenever the controversy arises.

Usually a deed need not be read to the grantee, nor can he avoid it because he did not know the contents, except when fraud has been practised on him. To a blind or ignorant man a different rule applies. The deed should be read to him, and if this is not done, or if it is wrongly read to him, he can have it set aside in a proper legal proceeding.

Delivery is essential; to do this two things are required. The grantor must give up the deed and the grantee must actually accept it, consequently the delivery of a deed after the grantor's death would not be valid. There must be an actual delivery by him, and though a deed may be completed in every other respect, it is not an effective deed. A deed therefore stolen from one's drawer and delivered to the grantee would not be valid, however innocent the grantee might be in receiving it. Many difficulties have arisen in applying this rule. When the question comes before a court, it seeks after the intention of the parties, and is guided by it when ascertained. If therefore a deed were lying on a table and the grantor should say to the grantee, take it, and he did so, the delivery would be complete; but if he should get it in a surreptitious way there would be no legal delivery. Suppose a deed were mailed to the grantee, or handed to another person to deliver to the grantee, this would be a good delivery.