I ■f 4 "I ^rxxwtW Ham ^rl^nnl Hibtarj) Cornell University Ubrary KFM2468.C93 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024688172 NOTES Com mon Forms: A BOOK OF MASSACHUSETTS LAW. URIEL H. CROCKER. boston : LITTLE, BROWN, AND COMPANY. 1867. Entered, according to Act of Congress, in the year 1867, by URIEL H. CROCKEK, In the Clerk's Office of the District Court of the District of Massachusetts. boston: PBBSS of GEO. C. RAND ife AVERT. TABLE OF CONTENTS. PAGE. Deeds . . . 1 1. Warranty Deed . . . 3 2. Quit-claim Deed ■ 56 3. Mortgage Deeds ... 58 Common Mortgage .... 58 Power of Sale Mortgage . . 61 Mortgage Note . . 67 Guaranty of Mortgage Note .68 Assignment of Mortgage .... . . . 68 Extension of Mortgage 71 Discharge of Mortgage 72 Partial Release of Mortgaged Premises 75 Acknowledgment by Mortgagor of Entry to foreclose . . .75 Certificate of Two Witnesses to prove Entry to foreclose . . 76 Surrender of Possession by Mortgagee 78 Sale under Power of Sale Mortgage 78 Conveyances to Uses . . 83 Deed of Administrator or I'xecutor 88 Deed of Guardian 90 Deed of Sheriff : . . 92 Deed of Executor or Trustee under Power in Will . . . 93 Deed of Estate of Married Woman ... . . 94 Execution of Deeds . . . ... . . 98 By Corporations . . 98 By Partners ... . . . . 100 By Attorney 100 Delivery of Deeds 107 Acknowledgment and Kccording of Deeds Ill iv TABLE OF CONTENTS. PA OB. Leases . . • • H^ Assignment of Lease by Lessor ... . . .134 Assignment of Lease by Lessee ... ■ • 135 Extension of Lease ... . . . . 137 Notice to Quit '39 Ageeement roK Purchase and Sale of Real Estate . . .153 Bonds ... 155 General Form of 155 Bond of OfScer of Corporation 157 Bill of Sale of Pebsonal Property 160 Mortgage of Personal Property 166 Tender 174 Wills 179 Some Important Points relating to Wills 1 89 Mention of " Heirs " in giving a Pee 189 After-acquired Lands 190 Widow's Portion 191 Omission of Children in Will 1 92 Lapsed Devises and Legacies 193 Residuary Clause. — What passes by 1 94 Devise or Legacy to " Heirs," to " Children," &c 195 Devises and Legacies to two or more 198 Devise to one for Life, Remainder to his Heirs in Fee . . .199 " Dying without Issue," &c 200 Law against Perpetuities . , 205 Provisions in Restraint of Alienation 208 Powers to sell 208 Power to sell in First Taker rendering void a Limitation over . 211 Bequest of Life Interest in Personal Property 213 Minor Points 214 Index . . 221 TABLE OF CASES CITED. A. Abbey ». Chase, 99 Abbott V. Bradstreet, 196 Adams v. Adams, 192 Adams v. Craft, 20i Adams v. Cuddy, 9 Adams v. Frothingham, 15 Adams v. Frye, 52. 109. 156 Adams v. Nichols, 127 Adams v. Parker, 71 Aiken v. Sanford, 164 Albee v. Carpenter, 204. 213 Allen V. Bryan, 121 Allen V. Clark 76 Allen V. Holton, 8 Allen, Petitioner, 90 Allen V. Scott 16 Allen V. Wheeler, 163 Alley 1). Lawrence, 211 American Bank v. Adams, 158 Amherst Bank v. Root 158. 159 Ammidown v. Ball, 17. 21 Ammidown v. Grocers' Bank 21 Amory v. Fellowes, 183 Amory ». Leland, 198 Amory v. Meredith, 215 Annable ». Patch, 197. 198. 204 Appletons. Bird 199 Ashby V. Eastern R. E. Co., 16. 21 Ashley v. Warner 140 Atkins V. Albree, 214 Atkins D. Chilson, ......26. 126. 127. 128 Atkins «. Sleeper, 118. 147 Attorney General v. Merrimack Manuf. Co 25 Austin V. Cambridgeport Parish, . .26. 27 195. 206 Austin V. Shaw, 69 B. Baboock v. Albee, 149 Bacon v. Lincoln, 33 Bacon v. Mclntire, 74 Bacon ». Woodward, 189 Badger ». Boardman, 28 Bailey v. JStna Ins. Co 64 Baker «. Adams, 131. 148 Baldwin ». Timmins, 33. 94 Ballard ii. Ballard 193. 197 Ballard v. Carter, 189 Ballou V. Talbot, 104 Bancroft!). Ives 192 193 Bank of Brighton s. Smith, 156. 159 Bank of British N. America v. Hooper, 103 Barlow v. Cong. Soo. in Lee 105 Barnard v. Eaton, 168 Barnard v. Moore, 66 Barnogee v. Hovey, 100 Barrett ». Porter 35. 37 Barry v. Bennett, 168 Bartlett ii. Bartlett, 5. 95. 97. 98 Bartlett v. Greenleaf, 119. 132. 140 Bartlett d. Johnson, 77 Bartlett v. Tarbell, 40 Basford v. Pearson, 30. 52. 53. 96 Bass V. O'Brien, 105 Batchelder v- Batchelder, 139. 143 Batchelder v. Stnrgis 32. 38 Bates ». New York Central R. R. Co.. 50 Bates V. Norcross, 42 Baxter v. Abbott, 184 Bayley v. Bailey, 182. 188 Bay State Bank v. Kiley 146. 148 Beal D. Warren, 97 Bearce v. Jackson, 33. 39 Bemis J). Call, 43. 70. 74 Benedict v. Hart 151 V VI TABLE OP CASES CITED. Benedict v. Morse, 141 Bennett v. Brooks 180 Bennett v. Conant, 76 Bickford v. Page 34 Bigelow V. Bridge, 158 Bigelow V. CoUamore 129 Bigelow 1). Jones, 40 Bigelow V. Smith, 172 Bingham v. Jordan, 172 Bixby V. Franklin Ins. Co 161 Blaokstone Bank v. Davis, 208 Blair, ex parte, 69 Blanchard v. Blanchard, 212. 213 Blanohard v. Brooks, 8 Blanchard ». Ellis, 35. 37. 44 Blaney v. Blaney, 192. 218 Blood V. Blood, 112 Boldry v. Parris, 186 Bond V. Fay 15 Bonsey v. Amee 167 Boston D. Tileston, 185 Boston V. Worthington 126. 134 Boswell V. Goodwin, 66 Bowditch V. Andrew, 198 Bowers «. Porter, 195. 196. 197. 200 Boyden v. Moore, 176 Boyntou V. Eees, 5 Brackett v. BuUard 169 Bradford!). Eandall, 48. 50 Bradlee v. Boston Glass Manufactory, . 106 Bradstreet v. Clark, 25 Brainard v. B. & N. Y. Central R. E. Co., 11 Braman v. Dowse, 19 Brattle Square Church v. Grant,. . .26. 27 128. 195. 205. 206. 207 Breed v. Hurd, 176 Breed v. Pratt, 182 Brewer v. Dyer 137 Brewer v. Worthington, 20 Bridge v. Wellington 7 Bridgham v. Tileston, 137 Briggs V. Parkman, 169 Brigham v. Maynard, 191 Brigham v. Palmer, 51 Brigham ». Peters, 102 ■Brigham ». Shattuck, 27. 195. 206 Brigham v. Smithy 44 Brigham J). Weaver 172 Brimmer v. gohier,. 190, 214, 215 Brinley v. M^nn, 99. 115 Brooks V. Jpnes, , 85 Brooks V. Lynde, , . , 217 Brooks i). Moody, ; 38 Brooks V. Powers, 1^3 Brown v. Bigelow, 16^ Brown v. Lapman, '" Brown v. Lawrence, 1^^ Brown ». Parker, 103. 104 Brown v. Pinkham ^^ Brown v. Thissell 1'^ Bruce v. Bonney, '?". V3 Bruce v. Wood, 43. 97 Bryant 1). Pollard, 74. 170 Bucknam «. Goddard, 168 Buffum II. Hutchinson, 21 Bnllard v. Briggs ^ Bnllardo. Gofife, 84 Bullock V. Williams 167. 169 Burbank v. Whitney, 212 Burden v. Thayer, 121. 135 Burge V. Cone, • 1^3 Burnett v. Pratt 70 Burns v. Lynde, 53. 100 Burrage v. Smith, 40 Burt V. Ricker, 69 Butler V. Seward 70 Buttrick v. Wentworth, 65 Buxton V. Uxbridge, 204 Byrnes v. Rich, 34 c. Call V. Buttrick, 112 Campbell v. Stetson, 121 Canedy v. Haskins, 204 Capron v. Attleborongh Bank, 65 Carbrey v. WiHis 14. 18 Carson v. Carson, 214 Cary v. Bancroft, 176 Caswell V. Keith, 164 Catlin V. Ware, 47. 61 Chadboum v. Chadboum, 89 Chaffin ». Chaffin, ..'. 9 Chamberlain v. Preble, 39 Chandler v. Temple 108. 109 Chapel •■;. Bull, 86. 37. 39 Chapin v. Harris 26 Chapin c Universalist Society in Chicopee, 94 Chapman v. Edmands, 12 Chase v. Allen, 156 Chase v. Kittredge, 186 Cheever v. Perley, 74 Chelmsford Co. v. Demarest, 158 Chesley v. Josselyn, 168 Chessman v. Whittemore, 52 TABLE OF OASES CITED. Childs V. Dolan, 81 Childs V. Russell, 196 Churoh V. Crocker, 193 Clap V. McNeil, 13 Clapp V. Thomas, 132 Clapp V. Tirrill, 6 Claik V. Houghton, 170 Clark V. Munroe, 48 Clark V. Scudder, 121 Clark V. Swift 31 Clark V. Tainter, 210 Clarke v. Oorilis, '. 196 Clarke v. Moies, 176 Cleveland v. Hallett, 21. 24 Codman v. Evans, 11 Codman v. Freeman 168 Codman II. Hall, 116. 125 Coffin u. Loring, 59 82 Coloord V. Swan, 43 Cold Spring v. Tolland, 12 Cole V. Raymond, 42 Collins V. Canty, 149 Comings v. Little, 30 Comins v, Newton, 167. 169 Commercial Bank v. Cunningham, ... 66 Commonwealth v. Andr^, 45 Commonwealth v. Bigelow, 151 Commonwealth v. Brown, 8 Commonwealth v. Dudley, 151 Commonwealth v. Griffith, : 50 Commonwealth v. Haley, 149 Commonwealth v. Koxbury 13 Comstook V. Smith, ( . 8. 44. 45 Concord Bank v. Bellis, 96 Converse v. Wales 193. Cook V. Farrington, 9 Coolidge V. Brigham, 163 Cooper V. Adams, 142 Cooper V. Bobinson 89. 90 Copeland v. Mercantile Ins. Co.,. .101. 102 Corbin v. Healy,. 22 Cornell v. Jackson, 33. 34. 35 Cox V. |;dwards, 2. 3 Creech v. Crockett, 139. 140 Crocker v. Gilbert, 5. 68 Crosby v. Baker, 169 Crosby v. Parker, 9 Crosby v. Taylor, 71 Crowninshield ». Crowninshield, 182 Cuffee V. Milk, 204 Currieri). Barker, 144. 145 Carrier v. Gale, 73 Curtis ». Galvin, 141. 162 Gushing v. Aylwin, 1 90 Cutter V. Davenport, 70 D. Dadmun v, Lamson, 3. 71 Daggett «: Slack, 195 Damon v. Granby, 99 Dana v. Middlesex Bank, 16 Danforth v. Sargeant, 139 Daniels v. Pond, .' 142 Daniels v. Eiohardson, 12] Davidson v. Delano, 74 Davis V. Hayden, 22. 86 Davis V. Maynard, 74 Davis V. Eainsford, 14 Deane «. Litchfield, 182 Dedham Bank v. Chickering, 158 Dennis v. Twitchell, 137 Denny v. Allen, 198 Denny v. Lincoln, 172 Desmond v. Norris, 65 Dewey v. Dewey, 186 Dewey v. Humphrey, 174 DeWitt V. Harvey, 93 Dexter v. Gardner, 206 Dexter v. Manley, 118. 122 Deyo V. Jennison, 158 Dillon V. Brown, 100. 133. 141 Dingley v. Dingley, 197 Doane v. Broad St. Ass., 16. 21 Doane «. Willcutt, 12. 43 Dolei). Tharlow, 61. 112 Donahoe v. Emery, 30. 41. 91. 123 Doody V. Pierce, 73 Dorr V. Wainwright, 213. 214 Dorrell v. Johnson, , 139 Dow V. Lewis 7. 92 Draper v. Mass. Steam Heating Co., . . 103 104. 105 Drury v. Natick, 206 Dunham v. Barnes, 164 Dutton V. Gerrish, 122. 133 Dwight «. Mudge, 124 Dyer «. Kich, 44 Dyer v. Sanford, 19 E. Earle v. Bickford, 67 Earle «. DeWitt, 7. 30. 67 Earle v. Kingsbury, 119 Easterbrook v. Tillinghast, 205 TABLE OP CASES CITED. Edwards v. Hale, 119. 120 Ela a Edwards,... 181. 182. 185. 186. 187 Eliot*. Eliot 187 Elliott V. Stone 119. 139. 140 Ellis V. Drake 77 Ellis V. Page, 216. 218 Ellis V. Paige, 142 Ellis V. Props. Essex Merrimack Bridge, -..195. ^00 Ellis ». Pulsifer, 99 Ellis V. Welch, 41. 123 Elwell 9. Shaw, 102 Elyu.Ely, B2 Emerson v. Cutler 199 Emerson v. Proprietors, &c., 39 Emerson ». Providence Hat Manuf. Co., 104 Emerson ». White H'4 Emerson v. Wiley, 13 Estabrook «. Smith, 32. 36. 39. 41 Evans v. Reed 143 Eyre v. Lamblay, 146 r. Fairbanks v. Metoalf, 49. 109. Ill Farley ». Thompson 121. 134 Farnsworth v. Taylor, 13. 11 Farnum v. Buffum, 114 Farson v. Goodale, 143 Farwell v. Mather, 154 Fay V. Fay, 189 Fay V. Smith, 62 Felch V. Taylor, 19 Felton V. Brooks 59 Ferriu v. Kenney, 142 Fifty Associates v. Howland, 127. 128 '140. 151 Firth V. Denny, 192 Fisher v. Hill, 194 Fisher ». Smith, 11 Fisk V. Gray, 156 Fiske V. Eldridge, 104 Fiske V. Framingham Manuf. Co.,. 133. 1S4 Fitch B. Seymour, '. 36 Flagg V. Mann, 45 Fletcher v. MoFarland, 124 Fletcher v. WiUard, 163 Flood V. Flood, 119 Flynn i). Trask, 131 Follett ti. Grant, 33 Forbes!). Parker, 167 Forbush v. Lombard, 16 Forster v. Fuller, 107 Fosdick V. Fosdick 198. 205. 207. 213 Foss V. Crisp, 1" Foster v. Mansfield, H" Foster D. Peyser, 118- 122 Fowle V. Merrill, ^3 Fowlers. Bott 129 Fowler v. Shearer 43. 46. 96. 102 FuUam v. West Brookfield, 99 Fuller V. Hooper, 106 Fuller V. Ruby, 119 Furlong v. Leary 1*1 G. Gale V. Cobum, 2. 6 Gales. Ward 16V Gardner «. Gardner, 101 George v. Baker, 69 George v. Wood, 14. 46. 46. 76 Gerrish!). Mason, .'... 23 Gibbs V. Marsh, 210 Gibbs V. Thayer, 41. 46 Gibson v. Stevens, 163 Giles V. Boston F. & W. Soc, 26. 206 Giles V. Morse, 47 Gilman v. Haven, 39. 40 Gilmore v. Holt, 176 Gilson e. GUson, 70. 112 Gleason v. Fayerweather, 189. 208 Gleason v. Gleason, 140 Goddard v. Sawyer, 66 Goff 11. Rehoboth, 178 Goldsmith v. Guild, .' 154 Goodrich «. Proctor, 94. 211 Goodwin v. Gilbert, 19. 116 Goodwin v. Richardson, 73. 77 Gore V. Brazier, 40 Gould V. Newman, 69 Goulding v. Swett, 167 Granger v. Brown, 145 Grant v. Chase, 18 Graves v. Hampden Ins. Co., 59 Grays. Blanchard, 24. 26 Green s. Chelsea, 12 Greenfield Bank ». Crafts, 102 Greenough s. Turner, 46 Greenongh v. Wells, 209 H. Hadley v. Hadley Manuf. Co., 25 Hall V. Bumstead, 31 Hall i>. Crowlty, 166 TABLE OF OASES CITED. Hall V. Hall, 186 Hall V. Hancock, 198 Hall V. Priest, 202. 204. 207 Hall !). Thayer, 204 Hall V. Tiifts, 208 Halls. Whiston, 112 Hallowell Bank v. Jloward, 176 Hamiltoif 0. Cutts, 39 Hancock v, Carlton, 26 Harding v. Coburn 167. 169 Harlow v. Fisk, 12 Harlow ». Thomas, 32. 35. 37. 38 Harper v. Ross, 164 Harrison v. Trustees of Phillips Academy, 49. 108. 112 Hastings v. Levering, 163 Hatch V. Dwight, , 13 Hatch V. Hatch, 52. 110 Hatch V. Smith, 161 Haven «. Adams, 61. 99 Haven v. Hilliard, 183. 184 Haverhill Ins. Co. v. Newhall, 103. 105 Hawes v. Humphrey, 184. 185. 189 Hawley v. ilorthampton, 203 Hayden v. Bradley, 131 Hayden t). Stoughton, 24. 27. 195. 206 Hays V. Jackson, 81. 218 Hay ward's. Howe, 200. 202 Hazards. Loring, 164. 176 Heard v. Bowers, 156 Hoards. Hall, 43. 45 Heath s. Wells, 90 Hedge v. Drew, 108. 109. 112 Hendee s. Pinkerton, 50 Henshaw s. Bank of Bellows Falls,.. . 168 Henshaw s. Bobbins, 163 Hewes s. Dehon, 216 Higginson s. Weld, 156 Hildreth s. O'Brien 164 Hills s.Bearse 96 Hills s. Eliot 69 Hills V. Farrington 66 Hogan s. Grosvenor 185. 186 Hogins V. Plympton 163 Holbrook s. Finney 48 Holden s. Fletcher 42 Hollands. Cruft '. 204 HoUenbeok s. Rowley 18 HoUis s. Pool 139. 140. 141 Holraan s. Bailey 73 Holmes s. Leland 177 Holt s. Sargent 45 Homer s. Shelton 212. 213. 214 Hooper e. Hooper 193. 194. 207. 214 (ii) Hosmer s. Sargent 82. 169 Houghton s. Bartholomew ' 93 Hovey s. Newton 123 Howard s. Merriam 139. 140. }41. 143 Howe s. Alger 13 Howe V. Dewing 108 Howe s. Lewis 73 Howes s. Bigelow 31 Howlandt). Coffin 121. 134 Howland s. Howland 217 Howland s. Shurtlefif. 74 Howlett s. Holland 177 Hulibard s. Apthorp 8 Hubbard s. Hubbard 26. 218 Hubbard s. Knous 177 Hubhard s. Lloyd 198 Hubbell V. HubbeU 218 Hudson s. Hulbert 90 Hugus s. Strickler 55 Hultain v. Munigle 145. 145 Hunt s. Adams 53 Hunt s. Hunt 69 Hunt s. Thompson 121. 132. 135. 137 Huntington s. Knox 103 Hutohinss. Byrnes 49. 99. 100 Hutohins v. State Bank 70. 72 I. Ide s. Ide 204. 212. 213 Inches s. Leonard 74 Ipswich, Pet 12 Ives s. Farmers' Bank 52 J. Jackson s. B. & W. B.R 12 Jamaica Pond Aq. Co. v. Chandler 2. 9. 16. 22 Jaques s. Gould 118. 120. 126 Jarvis v. Buttrick 36 Jeftsw. York 104. 106 Jenkins s. Hopkins 36. 37 Jenkins s. Stetson 217 Jewett s. Davis .23. 98 Jewett s. Draper 20 Johnson v. Bridgewater Iron Manuf. Co 214 Johnson s. Johnson 84. 86 Johnson s. Jordan 15. 18 Johnson s. Rayner 15 Johnson s. Stewart 145. 147 Jones V. Richardson 168 Jones s. Woloott 106 TABLE OP CASES CITED. Jordan v. Ward .' 146 Joslyn V. Wyman ^* K. Kellogg V. Ingersoll 35 Kelly V. Waite 141 Kendall w. Garland 121. 133. 135 KendaU v. Kendall 52 Kendall v. Mann ? Kent V. Barker 192 Kent V. Waite 17 Kimball v. Eowlaud 128. 145. 149 Kimball v. Tucker 102 King V. Parker 21 King V. Stetson 48 Kinmonth v. Brigham 214 Kinsley v. Ames 62. 143 Kirby v. Boylston Market Association 134 Knight 1). WUder 12 Kramer D. Cook 129. 131 L. Lackey v. Holbrook 60 Lamson v. Sohntt 90 Langwortby v. Little 171 Larned v. Bridge 209 Lathrop v. Grosvenor 36 Laughton v. Atkins 188 Learnard v. Kiley 114 Learned v. Cutler 47 Leavitt v. Fletcher 122. 123. 127. 129. 131 Leavitt v. Lamprey 47 Leeds v. Wakefield 211 Leffingwell v. Elliott 41 Leishman v. White 119 Leland i). Stone 34 Lennon v. Porter 76. 77 Leonard v. Leonard 18 Lerned v. Johns 103 Lexington & W. C. R. R. Co. i: Elwell 158. 159 Lienow «. Ellis 121 Light V. Goddard 13. 14 Livermore v. Aldrich . .' 6 Lobdell V. Hayes 192 Long V. Colburn 104 Loring v. Cooke 175. 176 Loring v. Otis 13 Loring ». Park 183. 184. 185 Levering v. Minot 218 Lowell «. Daniels 43. 97 Lowell 0. Spaulding 134 Lufkin V. Curtis 4T Lunt V. Holland 1^ Lynde v. McGregor 98 Lynde v. Thompson 1^^ M. Macomber v. Parker •' 1^3 Magoun e. Lapham 14 Manahan v. Vamum 70 Mann v. Chandler 105 Mann v. Hughes 142 Marsh v. Woodbury 171 Marshall v. Fisk 3. 112 Marston v. Hobbs 33. 34. 39 Mayhew v. Norton 12 Mayhew v. Prince 105 Maynard v. Hunt 73 Maynard v. Maynard 107. Ill McFarland ». Chase 141 Mclniffe v. Wheelook 174 Molntyre v. Park 101 Mead v. Fox 164 Meader v. Stone 152 Melledge v. Boston Iron Co 100. 104 Melvin v. Props. Looks & Canals 15. 47. 51. 97 Mendell v. Delano 17 Merriam v. Leonard 107 Merrifield v. Baker 59 Merrifield v. Cobleigh 25 Merrifield v. Parritt 102 Merrill v. Chase 73 Merrill v. Emery 212. 213 Middlesex Manuf. Co. u. Lawrence. . . 168 Miles V. Boyden 214. 215 Milford V. Holbrook 134 Mill Dam Foundry u. Hovey. . .48. 50. 99 Miller v. Ewing 8. 41. 44 Miller v. Goodman 6 Miller v. Miller 199 Millett V. Fowle 14 Mills «. Gore 107. 108 Milton V. Mosher 100. 169. 170 Minot V. Prescott 212 Mitchell ». Black 164. 171 MitcheU v. King 175. 177 Mizner v. Monroe 141. 142 Montague v. Dawes 62. 63. 65 Montague v. Gay 134 Moody V. Wright 168 Moore i'. Hazleton 109 Moore ». Mason 152 Morell V. Codding ' 104; 106 TABLE OF OASES CITED. Morgan!). Moore 14. 85 Morse v. Aldrioh 31. 32 Morse v. Mason 215 Mngford v. Richardson 152 Manro v. Merchants' Bank 66 Murdook V. Chapman 69 Mussey v. Scott 102 K Nash V. Cutler 196. 199 Nash «. Spofford » 43 Newcomb v. Presbrey 30. 41 New England Ins. Co. •». De Wolf 106 New England Jewelry Co. -v. Merriam 48 Newhall v. Ireson 11, 12 Newton v. Fay 164 Nichols V. Walter 35 Nicholson v. Munigle 119 Nickerson v. Buck 181. 186 Nightingale v. Burrell 203. 204 Niles V. Patch 12 Northampton Bank v. Pepoon 106 Norton v. Baboock 36. 37. 38. 40 o. Cakes v. Munroe 144 Oakham v. Rutland 76 Odell V. OdeU 205. 207 O'Kelly V. O'Kelly Ill O'Linda v. Lothrop 11. 13 Olmstead v. Mansir 164 Osborn v. Cook. . . ; 186. 187 Packard v. Nye 106 Page V. Page. '. . . 46. 47 Paige ». Sherman 6 Paine ». Prentiss '. 183. 194 Palmer v. Paine 113 Palmer v. Palmer 90 Palmer v. Stevens 114 Parker v. Bennet 14. 18 Parker v. Coburn 216 Parker v. Converse 94 Parker v. Framingham 11 Parker «. Hill 107. 108 Parker v. Nightingale 28 Parker v. Parker 45. 108. 189. 202 Parker v. Props. Locks & Canals 44 . Parker v. Smith 13 Parks V. Boston 123 Parks V. Loomis 14 Parsons V, Welles 73 Patch V. Wheatland 100. 170 Patten v. Deshon 121. 185 Patterson v. Boston 123 Perkins v. Nichols 6 Perkins v. Richardson 97. 113 Pettee v. Case 77 Pettingill v. Porter 18 Pettis V. Kellogg 167. 168. 169 Phelps V. Townley 71 Philips V. Ledley 161 Phillips V. Bowers 11 Phillips V. Stevens ; 127 Phinney v. Watts 12 Fidget. Tyler 1. 3. 111. 112 Pike V. Brown 19. 20. 25. 116 Pike V. Goodnow 46 Pitts V. Aldrich 71 Plimpton V. Fuller 216 Plymptou V, Plympton 192 Pollard V. Pollard 217. 218 Pomroy v. Rice 74 Pond V. Wetherbee 112 Poor V. Robinson 43. 216 Potter «. Bost. Locomotive Works . . . 170 Potter V. Irish 161 Powers V. Russell 107. 108. 109 Powers V. Ware,. 63 Pratt!). Farrar, 141. 142 Pratt 1). Felton, 192 Pratt V. Bice, 210. 214 Pratt V. Sanger, 7. 20. 21 Pray v. Pierce, ' 2. 67 Pray v. Waterston, 130 Preble «. Baldwin, 6 Prentiss v. Prentiss, 193 Prescott D. Elm, 145 Prescott V. Prescott, 193 Pres6ott v. Trueman, 35. 37. 38 Prescott V. Williams, 36 Purdie i). Whitney 211 Putnam v. Cushing, , 169 R. Randall v. Hazleton, 83 Randall v. McLaughlin, 18 Rawsou V. Uxbridge, 25 Raymond v. Holden, 43. 97 Raymond v. Raymond, 83. 40. 44 Reed «, Dickerman, 192 Reid V. Borland, 188 Rice «. Boston & Worcester R.R. Co., 27 TABLE OF OASES CITED. Eice.t). Gove, 103. 104 Bice V. Rice 60 Eichardsou «. Bigelow, 14. 16 Eiohardson ». Boston Chem. Lab., 175 Eichardson v. Boynton, 49 Eiohardson v. Noyes, 189. 203 Eichardson D. Wheatland,... 196. 197. 200 Eiohmond, Petitioner 90 Eising 1). Stannard, 142 Eoarty v. Mitchell 62. 63. 81 Eodgers v. Parker, 13- 14 Eooney v. Gillespie, 141 Eowley v. Eioe, 169 Eoyce v. Burrell, 31 Euggles ». Barton, 69 Russell V. Allen, 61. 135 EnsseU «. Coffin, 2. 57 s. Salisbury «. Hale 120 Saltonstall v. Long Wharf, 12 Saltonstall 1). Saunders 206. 207. 214 Sampson v. Heniy, 152 Samson «. Thornton, 108 Sanborn «. Flagler, 49 Sanborn J). Woodman, 25. 26 Sanderson v. White 206 Sanford v. Harvey, 144. 146 Sargent v. Smith, , .120. 121 Sargent v. Webster 99 Saunders v. Frost, : 174. 176 Saunders v- Bobinson, 151 Savage v. Hall, 71 Savary v. Clements, 70 Sawyer v, Kendall, 15 Scanlan v. Wright, 114 Scott V. Uxbridge & Rioksmansworth Railway Co., 175 Sears v. Dillingham, 183. 184 Sears «.EusseIl,... 196. 205. 207. 212. 213 Seaver v. Cobnrn, 102. 122 Sedgwick v. Lakin, 21 Sedgwick v Minot, 215 Shapleigh v. Wentworth, 172 Shattuck V Lovejoy, 121. 126. 127 Shaw V. Hayward, 107 Shaw V. Hearsey, , 199 Shaw V. Poor, 113 Shearer v. Babson, 169 Shearer v. Fowler, 57 Shearer ». Ranger, , 36 Shelton v. Oodman, . , 41. 123 Shelton r. Homer, 209 Shumway v. Collins, 122 Sibley v. Holdea 10 Silsby V. Bullock, 183 Simonds v. Heard, 106 Simpson v. McFarland, 172 Slater v. Rawson, 33.-39. 42 Slawson v. Loring, 103 Slayton v. Mclntyre, 73 Smith V. Bird, 23. 97 Smith V. Crocker, 52. 53 Smith!) Harrington, ...195. 196. 207. 216 Smith V. Jennings, 135 Smith V. Porter, 49 Smith V. Slooomb, 10 Smith V. Smith, 45. 215 Smith u. Strong, 34. 35 Smithwick v. Jordan, 216 Snow V. Perry, 176 Somes V. Skinner, 3. 44 South Soituate Savings Bank «. Ross, 217 Southwick i>. Hapgood, 173 Southworth v. Smith, 176 Sowie V Sowle, 8. 91 Sparhawk ». Sparhawk, 183, 184 Spaulding v. Day, 23 Spioer v. Lea, 144 Sprague ». Baker, 31. 39 Spring V Tongue, 32. 36 Spurn). Andrew, 32.34.35. 36 Staples V. Brown, 98 Stearns i). Harris, 26. 27 Stearns v. Hendersass 44 Stearns v. Mullen, . . . \ 11 Stearns v. Palmer, 85 Stearns d. Swift, 46. 47 Stebbins v. Merritt, 99 Steel 1). Cook, 22. 195. 199 Steel V. Steel, 60 Stevens v. Winship, 211. 212 Steward v. Harding 144 Stimpson «. Batterman, 199 StookweU 0. Hunter, 129 Stone !) Damon, 182 Stone D. Ellis, 25.' 26. 27 Stone D. Fowle, 154 Stone I). Lane, 67 Storer v. Freeman 12 Storer v. MoGaw, 178 Strong V. Converse, 20. 70 Strong V. Williams, 216 Sturtevant «. Bowker, 192 Sufifolk Banki). Worcester Bank,. 174. 178 Sumner » Barnard 34 TABLE OF CASES CITED. Sumner v. Williams, 8. 40. 89 Sutton B. Hawkins, 175. 177 Sweet «. Brown 8 Swett V. Boardman 185 T. Tainter v. Clark, 209. 210 Taploy V. Butterfield, 100 Tappan v. Burnham, 12 Tasker v. Bartlett 49. 60 Terry v. Foster, 193 Thacher v. Phinney, 51 Thatcher v. Omans, 1. 2. 84. 85. 95 Thayer v. Brackett, 175 Thayer v. Clemenoe, 31. 41 Thayer v. Payne, 18 Thayer ». Stark 107. 108 Thayer v. Wellington, 181. 194 Thomas v. LeBaron, 89 Thompson v. Brown, 90 Tilden v. Tilden, 127. 185 Tillinghast v. Cook, 195. 199 Tilson !). Thompson, 113 Tinney v. Ashley 164 Titcorab v. Currier, 94 Titcomb v. Morrili, 5 Torrey v. Wallis, 121. 124. 132 Town V. Trow, 177 Townsend v. Weld, 32 Townsley v. Chapin, 97 Travis v. Bishop, 172 Treadwell v. Cordis 211 Tripp V. Swanzey Paper Co. 105 Trull V. Eastman, 41. 46 Tufts V. Adams, 32. 35. 37. 41 Tufts V. Charlestown, 13 Tuttles. Bean 149 Twambly v. Henley 33. 39 Twyoross v. Fitohburg E. R. Co 124 Tyler v. Hammond 11 tr. Underwood v. Carney, 17 V. Valentine v. Piper, 101 Varnum v. Messerve, 62. 64. 65 Veazie D. Somerby, 161. 167. 170 W. Wades. Howard 2. 71. 73 Wade V, Merwin, 93 Walden v. Brown, 176 Waldos. Hall, 137 Wales V. Mellen, 60 Walker D. Sharpe, 146. 147 Walkins v. Hill, 74 Wall 1). Hinds 124. 126. 126. 129. 131 Wallis V. Wallis, 223 Ward V. Bartholomew, 3. 102 Ward V. FuUer, 1. 3. 216 Ward V. Lewis, 109 Ward V. Winslow, 108 Warden v. Adams, 69 Warden v. Richards, 209 Warner v. Beach 188. 189 Warring v. Williams, 63. 100 Way I). Reed 124. 132. 133 Webb I). Peele, 6 Wedge V. Moore, 45 Welch V. Priest, 69 Weld V. Williams, 204 Welles V. Castles 122. 129. 130 Welsh V. Foster, 26 West V. Spaulding, 40 Western R. R. Co. v. Baboock, 19. 107 Weston V. Foster, 197 Weston V, Penniman, 161 Wetherbee ». Bennet, 35. 38 Wheatland v. Dodge, 204 Wheeler v. Bent, 214 Wheeler v. Earle, 120. 127 Wheelwright v. Wheelwright, 110 White V. Curtis, 197 White V. Patten, 42 White V. Whitney, 40. 41 White V. Woodberry, 196. 200 Whiting V. Dewey, 10. 34. 91 Whiting V. Hadley, 93 Whitney v. Dinsmore, 31. 40 Whitney v. Gordon 139 Whitney v. Heywood, 172 Whitney v. Union K. R. Co., 28 Wight V. Shaw, 8. 41. 43. 44 Wight V. Thayer, 22. 204 Wild V. Brewer, 193 Wilde V. Armsby, 52 Wilder v. Goss, 193 Wilkinson v. Libbey, 125 Wilkinson v. Scott, 6 Willard v. Ware, 215 Williams v. Reed, 68 XIV TABLE OF CASES CITED. Williams v. Williams, 192 Wilson ». Fosket, 193 Winchester v. Carter, 5 Winchester v. Forster 190 Winslow V. Merchants' Ins. Co., 168 Winsor v. Griggs, 103 Winsor v. Lombard, 163 Winter v. Stevens, 3. 152 Witham v. Butterfield, 172 Woloot V. Knight, 44 Wood V. Goodridge 101. 102 Wooley V. Groton, 16 Wprthington v. Hylyer, 14 Wyman v. Ballard, 35. 37 Wyman v. Brigden 38 Wyman v. Hooper 91 Wyman v. Symmes, 184 TABLE OF STATUTES CITED. St. 1783, c. 24, s. 8 194 St. 1788, c. 37, s, 4 3 St. 1784, ^i. 8 151 St. 1786, 0. 58, s. 1 5 St. 1785, u. 62, s. 4 199 St. 1791, li. 60, s. 3 199 St. 1832, u. 157, s. 1 167 EeT. St., u. 50, s. 15 5 Rev. St., u. 59, ». 2 43, 94 Eev. St., u. 59, s. 5 '. 57 Eev. St., u. 59, a. 9 200 Eev. St., u. 59, B. 28 3 Eev. St., u. 60, ». 7 46 Bev. St., 13. 62, s. i 182, 216 Eev. St., 0. 62, s. 2 216 Eev. St., 0. 62, s. 3, 4 190 Eev. St., 0. 62, 8. 5 182 Eev. St., 0. 62, s. 24 194 Eev. St., 0. 74, s. 5 167, 172 Eev. St., c. 94, s. 54 184 Eev. St., 0. 104 151 St. 1843, c. 72, s. 2 172 St. 1845, u. 208 23, 96, 97, 113 St. 1848, „. 166, ». 5 112 St. 1849, u. 47 69 St. 1849, t>. 205 101 St. 1850, u. 34 184 St. 1850, u. 200 182 St. 1851, 0. 288 69 St. .1854, 0. 428 192 St. 1855, 0. 304, 23, 43, 96, 97, 182 St. 1856, 0. 188 184 St. 1857, u. 249 .23, 96, 97, 182 St. 1857, .;. 305 184 Gen. St., u. 3, 5. 7, cl. 5 31 Gen. St., u. 3, s. 7, ol. 15 50 Gen. St., 0. 11, 8. 8, 9 125 Gen. St., c. 12, s. 35 112 Gen. St., c. 18, s. 64 148 H9. Gen. St., 0. 85, s. 4 5 Gen. St., c. 87,8.6, 8, 9.... 133 Gen. St., 0. 89, 8. 1 111 Gen. St., c. 89, s. 2 • > t . ..49. 132 Gen. St., 0. 89, s. 3 ..3. 111. 132 Gen. St., 0. 8fl, o. 4 . . . - 22 Gen. St., 0. 89, 8. 8 ..57. 85 Gen. St., 0. 89, s. 12 200 Gen. St., c, 89, =.13, 14 .... ...70. 87. 199 Gen. St., i;. 89, ». 17 ..31. 38 Gen. St., u. 89, 8. 18 •. . . IIS Gen. St., u. 89, ». 19 114 Gen. St., li. 89, ». 20-27. . . . ..51. 112 Gen. St., u. 89, s. 28 .112. 111. 114 Gen. St., u. 89, s. 29 . . .100. 101. 113 Gen. St,i>. 89,8.30,31.... ..72. 176 Gen. St., c. 90, s. 1 191 Gen. St., c. 90, s. 8 ..46. 47 Gen. St., 0.90,8. 9,10,12.. 48 Gen. St., 0. 90, s. 15,16,18. 191 Gen. St., c. 90, 8. 20 IS"" Gen. St., 0. 90, 8. 25 1'>0 Gen. St., 0. 90, 8. 30 .127. 139. 144 Gen. St., 0. 90, ». 31 .139. 144 Gen. St., li. 90, ». 36 22 Gen. St., u. 92, s. 1 22 . 27. 182. 216 Gen. St., u. 92, 8. 2 IS'' Gen. St., 0. 92, 8. 8 •"Ifi Gen. St., c. 92, 8. 4 190 Gen. St., 0. 92, 8. 5 .189. .181. 190 Gen. St., 0. 92, 8. 6 183 Gen. St., i;. 92, 8. 8 .181. 188 Gen. St., u. 92, s. 9 1SS Gen. St., u. 92, 8. 10 183. 184. 185 Gen. St., u. 92, 8, 11 IRS Gen. St., c. 92, s. 24 .191. 192 Gen. St., 0. 92, s 25 .192. 193 Gen. St., c. 92, ». 26 193 XVI TABLE OF STATUTES CITED. Gen. St., c. 92, s. 28 194 Gen. St., u. 92, ». 29, 30 218 Gen. St., t. 92, 0. 36, 37 192 Gen. St., c. 93, s. 6 180 Gen. St., c. 94, s. 16, 17 191 Gen. St., 0. 96, 8. 4, 5 191 Gen. St., u. 96, ». 12, 13 69 Gen. St., li. 97, s. 21 217 Gen. St., c. 97, s. 23, 24 218 Gen. St., 0. 98, s. 5 69 Gen. St., c. 100, s. 9, 10 87 Gen. St., c. 101, =. 81-37 31 Gen. St., v;. 102,8.1-23,48 89 Gen. St., c. 102, s. 6, 24, 25, 28, 34-36, 41,48 91 Gen. St., u. 102, s. 10 112 Gen. St., 0. 102, s. 11, 24, 26, 33 27 Gen. St., c. 102, s. 20, 24, 31, 33 112 Gen. St., c. 103, s. 26 176 Gen. St., c. 103, s. 40 92. 93 Gen. St., c. 103, s. 44 176 Gen. St., c. 104, s. 7, 8 46 Gen. St., 0. 105, s. 1 153 Gen. St., c. 105, s. 5 162 Gen. St., 0. 108, s. 1 23. 96 Gen. St., y,. 108, =,. 2 43. 94 Gen. St., e. 108, s. 3 95 Gen. St., 0. 108, s. 5, 8 43 Gen. St., c. 108, s. 9, 10 182 Gen. St., c. 108, s. 11 47 ■ Gen. St., u. 108, ». 12 98 Gen. St., u. 108, ». 19-25 48 Gen. St., 0. 108, s. 29 96 Gen. St., c. 108, s. 31 96 Gen. St., c. 118, s. 42 112 Gen. St., t. 129, ». 62, 63 178 Gen. St., c. 130, s. 23, 24, 25 174 Gen. St., c. 130, 8. 26 175 Gen. St., 0. 131, 8. 13 183 Gen. St., M. 131, 8. 14 183. 184 Gen. St., u. 131, ». 15 183 Gen. St., o. 134, s. 2, 7 26 Gen. St., 0. 134, s. 18 et 8eq 37. 40 Gen. St., c. 137 149. 151. 152 Gen. St., vi. 137, ». 3 148 Gen. St., u. 138, ». 11, 12 ' 174 Gen. St., c. 140, a. 2 ....76. 77 Gen. St., 0, 140, s. 9 60 Gen. St., 0. 140, 8. 18 176 Gen. St., u. 140, s. 38 83 Gen. St., c. 140, s. 39, 49, 41 63. 83 Gen. St., c. 140, 8. 42 63. 81. 82 Gen. St., 0. 140, s. 43 63. 81 Gen. St., c. 140, s. 144 63 Gen. St. li. 151, ». 1 . . .167. 169. 170. 171 172 Gen. St., c. 151, s. 2 170 Gen. St., c. 151,8.6,7 173 Gen. St., u. 156, s. 4 52. 67 Gen. St., u. 161, 8. 59 17 Gen. St., c. 161, s. 60 17 Gen. St., c. 161, s. 61, 62 170 St. 1861, c. 164 191 St. 1868, i>. 41, ». 2, 3 114 St. 1863, u. 151,5. 1 113 St. 1864,0.137 88. 89. 90. 91 St. 1864,0.262 114 St. 1866, c. 174 124 St. 1866, u. 280, s. 1,3 133 St. 1867, c. 56 67 St. 1867, c. 250, s. 1 113 St. 1867, u. 250, 8. 2 114 NOTES ON COMMON FORMS. DEEDS. Undee this head it is proposed to consider only those in- struments which are called " deeds " in the more limited sense of the word ; that is, conveyances of real estate or of some interest therein. In Massachusetts in early times most, if not all, the modes of conveyance known to the English law seem to have been sometimes made use of, — feoffment, bar- gain and sale, lease and release, covenant to stand seized, fines, rQCOveries, &c. Only two of these, however, were com- mon, — namely, the feoffment, and the bargain and sale ; the former consisting of a formal livery of seizin of the prem- ises convej'ed, accompanied generally, but not necessarily, by the delivery of a writing under seal called a charter of feoff- ment; and the latter being a contract by which one agreed to convey his land to another for a pecuniary consideration, in consequence of which a use arose to the bargainee, and the Statute of Uses immediately vested the possession. (See Pidge V. Tyler, 4 Mass. 541. — Ward v. Fuller, 15 Pick. 185, 188. — Thatcher u Omans, 3 Pick. 521, 529, 532.) Most of the early deeds, however, united many of the elements of the charter of feoffment with those of the bargain and sale, (1) DEEDS. a union which is still maintained in our modern deeds, the words "give, grant," in which have been adopted from. the former ; while from the latter are derived the words " bar- gain, sell," and the mention in the habendum clause of the use and behoof of the grantee and his heirs. It is, however, a well-established rule of law that the tech- nical words which may happen to be adopted in a deed shall not determine its character and effect, if such construction would defeat the lawful intent of the parties, but an instru- ment shall be construed to belong to any of the recpgnized species of conveyance, so as best to give effect to such intent. Thus, a deed which in form is strictly a release may be holden to act as a deed of bargain and sale, and a deed in form of bargain and sale may be construed to operate as a covenant to stand seized. Pray v. Pierce, 7 Mass. 381. Russell V. CofSn, 8 Pick. 143. — Gale v. Coburn, 18 Pick. 397. — Jamaica Pond Aq. Co. v. Chandler, 9 Allen, 159, 167. — WaUis V. Wallis, 4 Mass. 135. See also Thatcher v. Omans, 3 Pick. 521.— Wade v. Howard, 11 Pick. 289, 295. — Cox v. Edwards, 14 Mass. 492. As early as 1640 it was provided by statute in the Massa- chusetts Colony that conveyances of real estate, tohere the grantor remained in possession, should, unless acknowledged and recorded, be valid only as against the grantor and his heirs. Mass. Col. Pec. vol. i. p. 306. Soon afterwards, in 1652, with the view of preventing the then common evil of transfers of real estate without deed, it was provided that no conveyance should be valid, unless "by deed in writing under hand and seal," accompanied either by livery of seizin or by the acknowledgment and recording of the deed. Mass. Col. Reel vol. iii. p. 280. In 1697 what had been implied in the last-cited statute was distinctly enacted ; namely, that a deed recorded at length should "be valid to pass" real FOEM OP WAEBANTY DEED. 3 estate without livery of seizin. Mass. Prov. Laws, 1697. For the space of nearly a century after this the law remained tinaltered, till, in 1784, the importance of livery of seizin was finally destroyed, and the new system of registration firmly and completely established by a statute provision to the effect, that, unless acknowledged and recorded, a deed should not be good except as against the grantor and his heirs. St. 1783, c. 37, s. 4. This left the law substantially as we find it at present ; the only changes having been that the Revised Statutes included, in the same exception with the heirs, the devisees of the grantor, and also, (adopting a judicial deter- mination to that effect,) persons having actual notice of the deed. R. S. c. 59, s. 28. — G. S. c. 89, s. 3. See 6 Cush. 167, 168. See a general review of the changes of the law relative to conveyances of real estate in the decisions of Par- sons, C. J., in Pidge v. Tyler, 4 Mass. 541, and in Marshall v. Piske, 6 Mass. 24. See also Ward v. Puller, 15 Pick. 185, 188, &c. — Cox V. Edwards, 14 Mass. 492. It may be well to mention in this connection that a disseizee, without entry and delivery of the deed on the land, cannot convey any title which will be valid as against the disseizor and those claiming under him. See Dadmun v. Lamson, 9 Allen, 85, 88, and cases there cited. See also Somes v. Skin- ner, 3 Pick. 52, 61. But it seems that this rule has no appli- cation to grants by the State. Ward v. Bartholomew, 6 Pick. 409, 415. As to what is a disseizin sufficient to prevent the true owner of an estate from making a valid conveyance, see Winter v. Stevens, 9 Allen, 526, 529. I. WARRANTY DEED. Know all men by these presents that I, A. B., of Boston, in the Common- wealth of Massachusetts, in consideration of one thousand dollars to me paid by C. D., of Worcester, in said Commonwealth, the receipt whereof is hereby 4 DEEDS. acknowledged, do hereby give, grant, bargain, sell and convey unto the said C. D. a certain parcel of land situated on W street in said Boston, and bounded as follows : — Easterly on said W street, thirty feet ; — Southerly on land now or late of L. M., fifty feet ; — Westerly on land of N. O., thirty feet ; — and Northerly on the same, fifty feet and seven inches ; — and being the same premises that were conveyed to me by E. S. by deed, dated 7th Dec. 1862, and recorded in Suffolk Registry of Deeds liber 820, folio 147. To have and to hold the aforegranted premises, with the privileges and appurtenances to the same belonging, to the said C. D. and his heirs and assigns to his and their use and behoof forever. And I do hereby, for myself and. my heirs, executors and administrators, covenant with the said grantee and his heirs and assigns that I am lawfully seized in fee of the granted premises ; that they are free from all incum- brances ; that I have good right to sell and convey the same as aforesaid ; and that I will, and my heirs, executors and administrators shall, warrant and defend the same to the said grantee and his heirs and assigns forever, against the lawful claims and demands of all persons. And for the consideration aforesaid, I, S. B., wife of the said A. B., do hereby release unto the said grantee and his heirs and assigns all right of and to both dower and homestead in the granted premises. In witness whereof we, the said A. B. and S. B., have hereunto set our hands and seals this first day of January in the year one thousand eight hundred and sixty-seven. Sig;iied and sealed in presence of E. F. G. H. A. B. S. B. (I SEAL. ] NOTES. " I, A. B., OF Boston," &c. The mention of the county iu which a party to a deed resides would seem, at least in this State, to be unnecessary and superfluous. The naming of the profession or business of the parties is of but little prac- tical benefit, especially when, as is often the case, such general terms as " gentleman," " trader," " yeoman," or " merchant," are employed. CONSIDERATION. 5 "In consideration op" &c. Even if no consideration be named, a deed is not on that account invalid, a consideration being implied in the solemnity of the instrument. Boynton V. Reesj-S Pick. 329. See also 2 Kent Com. 464 — Crocker v. Gilbert, 9 Cush. 131, 134. Nor it seems is an actual want or failure of consideration a good ground, in the absence of fraud, for the avoidance of a deed by the grantor. Bartlett V. Bartlett, 4 Allen, 440, 443. Nor will a total want of con- sideration raise an implied trust in the grantee in favor of the grantor, even though aided by an oral agreement. Titcomb V. Morrill, 10 Allen, 15, 17. But it is provided by statute that, when the whole or any part of the consideration of any conveyance is money or goods won by gaming or betting, or for reimbursing or repay- ing money knowingly lent or advanced for gaming or betting, or lent and advanced at the time and place of such gaming or betting to a person so gaming or betting, such conveyance shall be void, except as to parties holding in good faith and without notice, — and upon any siich conveyance of lands being adjudged void, the lands are to envcne-.todhe. me of such person as would be entitled thereto if the .grantoor, were deadn- Gen. St. c. 85, s. 4. (Re-enacting R. S. C- 50, s. 15, and St. 1785, c. 58,s. 1.) " A conveyance of property made only on a meritorious con- sideration, as of blood and affection, is not per se fraudulent. Whether it be so or not is a question of fact, to be determined on a view of all the circumstances attendant upoji the making of the grant or conveyance, especially on the condition of the vendor or grantor as to property, and as to the amount of debts which were due and owing from him at the time he undertook to dispose of his estate, or a portion thereof, by gift, or without adequate consideration." Bigelow, C. J., in Winchester v. Carter, 12 Allen, 606, 608. And in 6 DEEDS. this case it was held that a voluntary conveyance from one to his vv-ife through a third person was not to be considered void as against subsequent creditors, although such convey- ance was made with a view to place the property be3't)nd the reach of creditors to whom the grantor might at some subse- quent day become indebted, provided he had not at the time of the conveyance any fraudulent intent to contract debts which he did not intend to pay, or had reasonable ground to believe that he should not be able to pay. The consideration and the acknowledgment of its payment expressed in the deed are held to be recitals merely which aflbrd only primd facie proof of the facts, and are liable to be controlled and rebutted by parol evidence. Paige v. Sher- man, 6 Gray 511, 513. Consequently it may be proved by parol that the real consideration was greater (Miller v. Good- win, 8 Gray 542, — Paige v. Sherman, 6 Gray 511, — Preble V. Baldwin, 6 Cush. 549, 553.) or less (Webb v. Peele, 1 Pick. 247) than that named, or altogether different from it ; (Gale v. Coburn, 18 Pick. 397, — Bullard v. Briggs, 7 Pick. 533, 537.) or that a part or the whole of the consideration, the receipt of which is acknowledged in the deed, has not in fact been received by the grantor. (Paige v. Sherman, 6 Gray 511, — Clapp v. Tirrill, 20 Pick. 247, —Wilkinson v. Scott, 17 Mass. 249, 257.) So although it be expressed in the deed that the consider- ation was paid by the grantee, yet parol evidence that it was in fact paid by a third person is admissible for the purpose of establishing a resulting trust in his favor. Livermore v. Al- drich, 5 Cusb. 431, 435. — Perkins v. Nichols, 11 Allen, 542, 545. And it seems that a resulting trust in favor of a third party may also be established when, although the money paid by the grantee was his own money, it is yet fully and clearly proved by parol that it had been distinctly agreed before the purchase that the money so paid should be considered as a loan BPffBCT OF "WORDS " EIGHT, TITLE AND INTEKB8T." 7 from the grantee to the third person. Kendall v. Mann, 11 Allen 15. " Give, grant, bargain, sell and convey." A warranty during the life of the grantor was, in the absence of express cov- enants, formerly implied from the words gice and grant. Co. Litt. 384, a — Dow v. Lewis, 4 Gray, 468, 473 — Earle v. De Witt, 6 Allen, 520, 528. But it may be doubted whether such an effect would now be given to those words in this State. It would seem that none of the other words recited above have ever been held to imply any warranty or covenant whatever. A deed in which all words of grant were omitted, but which was complete in other respects, has been held to be a valid conveyance. Bridge v. Wellington, 1 Mass. 219. " To THE SAID C. D." It is common to insert the words " and his heirs and assigns " in this place after the name of the grantee, but they are wholly unnecessary. The haben- dum is the portion of a deed which, properly, should declare the quality of the estate granted, whether for years, for life, in fee, &c., and, if that refers to the " heirs " of the grantee, the deed passes a fee in all the estate described in the premises. Pratt V. Sanger, 4 Gray 86. It may be remarked also that the form given above corresponds in this respect with that of the ancient charter of feoffment as given at the end of the Sec- ond Book of Blackstone's Commentaries. " A CERTAIN PARCEL OP LAND," &c. The words " all my right, title and interest in " are sometimes inserted before the description of the premises, and it has been held that in such cases all subsequent covenants, which in terms apply, accord- ing to the usual form, to the " granted premises," are to be construed as referring not to the parcel of land desci-ibed by 8 DEEDS. metes and bounds, but to the right, title and interest, what- ever they may be, of the grantor therein. Sweet v. Brown, 12 Met. 175. — Allen v. Holton, 20 Pick. 458. — Comstock v. Smith, 13 Pick. 116, 120. — Sumner v. Williams, 8 Mass. 174. See also Commonwealth v. Brown, 15 Gray 189, 191. And if the grantor in a deed, in which these words are used, has in addition to a certain vested interest a further contingent interest, the grant will operate to pass the vested interest only, and a warranty will be construed as referring to such vested interest alone, and will not extend to the contingent interest or operate upon it even by way of estoppel. Blanchard v. Brooks, 12 Pick. 47, 65. — Wight v. Shaw, 5 Cush. 56, 64. Where however a deed conveyed all " the share and interest" of a party in certain land, it was held to pass both a present estate and an estate in reversion. Sowle v. Sowle, 10 Pick. 376. See also Miller v. Bwing, 6 Cush. 34, 40, where, though by the terms of the deed the grantors " remise, release, grant, bar- gain, sell and forever quit claim certain lands " described, " together with all the estate, right, title, interest, use, property, claim and demand whatsoever of us which we now have, or at any time heretofore had, of, in, or to the aforementioned premises," it was held that the grant was only of the right, title and interest of the grantors at the time of the grant and that the covenants in the deed covered such interest only. But where, having used terms purporting to convey an estate described by metes and bounds, the grantor added the words " meaning and intending hereby to convey all my right, title and interest in and to " the said estate, it was held that the covenants applied to the land described and not to the grantor's interest therein. Hubbard v. Apthorp, 3 Cush. 419. According to the preceding decisions the restricting of the grant to the grantor's right, title and interest in the described "WITH THE BUILDINGS THEREON." 9 premises renders any covenant in the usual form which may be contained in the deed wholly ineffectual, and a deed which purports in its general appearance and to the eye of any but the practised conveyancer to be a full warranty deed, may, through the influence of these few obscure words, be in fact a simple release of the interest of the grantor without any effectual covenant whatever. Indeed the influence of these words seems to reach still farther, for in Adams v. Cuddy, 13 Pick. 460, though the final decision of the case did not rest upon this point, but was ad- verse to the party in whose favor it operated, it was held by Judge Shaw that, where they are thus introduced in a deed, the grantee takes a title subject to all prior unregistered con- veyances and incumbrances, even those of which he has no notice. In this case however the deed contained no particu- lar description by metes and bounds of the parcel conveyed, and this fact may have had an influence, though it was not referred to as one of the grounds of the decision ; but the principle there laid down has, at least as applicable to deeds not containing descriptions by metes and bounds, been recog- nized and adopted in the recent cases of Jamaica Pond Aq. Co. V. Chandler, 9 Allen 159, 169 ; Chaffin v. Chaffin, 4 Gray 280 ; and Cook v. Farrington, 10 Gray 70. With regard to the use in this part of a deed of the words " with the buildings thereon," it was remarked by Chief Justice Parsons in Crosby v. Parker, 4 Mass. 110, 114, that " they are often inserted by unskilful scriveners with- out any particular meaning, and in fact have no legal ope- ration." Sometimes however by a reference to the partic- ular character of the buildings on the granted premises, as for instance by mentioning "the church" or "the new brick dwelling-house thereon standing," a fact may be re- corded in the deed which will be useful in identifying the 10 DEEDS. premises, or will, at least, be interesting as illustrating their history. " Bounded as follows." It is by no means necessary that the granted premises should be particularly described ; thus, where a deed conveyed several parcels described by metes and bounds, and then provided as follows, " meaning and intend- ing hereby to convey all the real estate which I derived under" certain deeds, referred to only by their place of registry, " to all which deeds reference is to be had," it was held that a parcel conveyed by one of the deeds so referred to, but not one of those described by metes and bounds, passed by the deed. Foss v. Qrisp, 20 Pick. 121. But on the other hand it seems that such a recital, following a par- ticular description by metes and bounds, will not be allowed to exclude from the operation of the deed any parcel included in the particular description. Whiting v. Dewey, 15 Pick. 428. When land is described as bounding on or hy a highway, in the absence of such a description as necessarily excludes any portion of the way, the law presumes it to be the intention of the grantor to convey the fee of the land to the centre of the road, provided of course that his own title extends so far. Hohenbeck v. Rowley, 8 Allen 473. From the numerous cases in which our Supreme Court has applied the above prin- ciple there may, we think, be deduced two practical rules of interpretation, which may however be rendered inoperative in any given case by the addition in the deed of peculiar words or phrases tending to show the intention of the grantor. 1st. If a monument, such as a stake or a wall standing at the side of the way, is mentioned as the point to and from which the bounding-hnes of the granted premises run, the whole of the way is excluded. Smith v. Slocomb, 9 Gray 36. — Sibley v. Holden, 10 Pick. 249. DESCRIPTION. 11 2d. If however the land be bounded on or by the road or street without any reference to such monument, the convey- ance is held to extend to the middle of the way, even though measurements of side lines be given of such a length as to reach only to the outer line of the way. Philhps v. Bowers, 7 Gray 21, 24. — Newhall v. Ireson, 8 Cush. 595. But see Tyler v. Hammond, 11 Pick. 193. See also remarks of Chap- man J. in Codman v. Evans, 5 Allen 308, 310. Where land was bounded easterly by a " thirty-foot street by a line which is parallel with and one hundred and ninety feet distant from B Street," and which thirty-foot street was also described as being one hundred and sixty feet west- erly from said B Street, it was held that the description did not include any part of said thirty-foot street. Brainard v. B. & N. Y. Central R. R. Co., 12 Gray 407. The same principles extend to lands bounding on private ways. Fisher v. Smith, 9 Gray 441. — Codman v. Evans, 1 Al- len 443. See also Phillips v. Bowers, 7 Gray 21, 26. — Stearns V. Mullen, 4 Gray 151. In the following cases the intent to exclude the way has been held to be sufiScieutly shown by peculiar expressions in the deeds. Where the granted premises were bounded " on a certain nine-feet passage-way or open piece of land lying between the land herein conveyed and .the house of said A." Codman v. Evans, 1 Allen 443. Where they were bounded "on an intended street," 0' Linda v. Lothrop, 21 Pick. 292; but in this case the above expression was aided by other facts tending to show an intent to exclude the street. Where they were bounded " by the Worcester Turnpike," the turnpike having been " recently laid out by an exact description, recorded, and well known and understood." Parker v. Frar mingham, 8 Met. 260, 267. When land is described as bounding by or on a river (Lunt 12 DEEDS. V. Holland, 14 Mass. 149), brooh (Newhall v. Ireson, 13 Gray 262), mill-pond (Phinney v. Watts, 9 Gray 269), the sea (Green V. Chelsea, 24 Pick. 77. — Jackson v. B. & W. R. R., 1 Gush. 578. — Saltonstall v. Long Wharf, 7 Gush. 200), a harbor (May- hew V. Norton, 17 Pick. 357), or creek (Harlow v. Fisk, 12 Gush. 302), the conveyance is held to extend to the thread of the river or stream, and to low-water mark of the sea or tide water. And this result is not affected by the fact that the side lines are described as running to and from monuments standing on the bank of the river or at high-water mark of the sea (Cold Spring v. Tolland, 9 Gush. 492.— Knight v. Wil- der, 2 Gush. 199, 210.— Ipswich, Pet. 13 Pick. 431), nor by the fact that the quantity of land granted or the length of the side lines as given in the deed would exclude all beyond the bank or high-water mark. (Mayhew v. Norton, 17 Pick. 357. — Saltonstall v. Long Wharf, 7 Gush. 195.) But when the boundary is by the bank of a river (Hatch v. Dwight, 17 Mass. 289), by the shore of the sea (Storer v. Freeman, 6 Mass. 435, but see remarks in Doane v. Willcutt, 5 Gray 335), by the beach (Niles u. Patch, 13 Gray 254— Tap- pan V. Burnham, 8 Allen 65, 72), or by the flats (Saltonstall v. Long Wharf, 7 Gush. 195, 200— Jackson v. B. & W. R. R., 1 Gush. 575, 579), the land under the river in the one case, and that between high and low-water marks in the other, is ex- cluded. When the expression " sea or beach " or " sea or flats " is used, the conveyance is held to extend to low-water mark on the principle that an ambiguous expression in a deed is to be construed most strongly against the grantor. Salton- stall V. Long Wharf, 7 Gush. 195 — Doane v. Willcutt, 5 Gray 328. In this connection it should also be remarked that in a recent case it has been decided that flats are not included in a description which bounds the land on a salt-water " creek betwixt said land and land of J. L." Ghapman v. Edmands. DESCEIPTIOK. 13 3 Allen 512. See also the cases on this subject collected in the note to Commonwealth v. Eoxbury, 9 Gray 524. When land is described as bounding on a street or way, if the grantor be the owner of the adjoining land over which such street or way is described as laid out, he and his heirs and all persons claiming under him are estopped from setting up any claim or doing any acts inconsistent with the grantee's use of such street or way. O'Linda v. Lothrop, 21 Pick. 292. — Farnsworthw. Taylor, 9 Gray 162. — Tufts v. Charlestown, 2 Gray 271. — Parker v. Smith, 17 Mass. 413.— Emerson v. Wi- ley, 10 Pick. 310. But where at the time of the grant there is a way existing, which does not correspond completely to the description of the bounding way given in the deed, the estop- pel may be limited in its effect to the extent of such actually .existing way. Clap v. McNeil, 4 Mass. 589. — Parker v. Smith, 17 Mass. 413, 416. When however the grantor has not any interest in the adjoining land, the mere recital of a street or way as one of the abuttals in the description will not raise any implied covenant of the existence of such street or way. Howe V. Alger, 4 Allen 206. See also Loring v, Otis, 7 Gray 563. As to the rights of the grantee of land bounded upon a court open only at one end, see Rodgers v. Parker, 9 Gray 445. See also a case where, — one having sold lots on one side of a street, referring in the deeds conveying the lots to a plan on which those lots were shown, and the land on the other side of the street belonging to the grantor was not divided iuto lots, but was marked in one portion " Ornamental Grounds," and in another, " Play Ground," — it was held that there was no implied covenant on the part of the grantor that such land on the opposite side of the street should con- tinue to be appropriated for the purposes specified on the plan. Light ?;. Goddard, 11 Allen 5. 14 DEEDS. If land be described as bounding on a " house," " building," &c., the line will run, not by the face of the wall, but by the edge of the eaves or other extremest part of the building. Carbrey v. Wilhs, 7 Allen 364, 370 — Millett v. Powle, 8 Gush. 150. The following are some of the more important general rules of construction which are applicable to the interpretation of this portion of a deed : — " Whenever known monuments are referred to as bound- aries, they must govern, although neither courses, nor dis- tances, nor the computed contents, correspond with such boundaries." Per Wilde, J. in Davis v. Rainsford, 17 Mass. 207, 210. See also George v. Wood, 7 Allen 14. But this rule is not inflexible ; a boundary inadvertently inserted may be rejected. See Parks v. Loomis, 6 Gray 467, 472. " When the description includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass except such as will agree to every particular of the description." Per Parsons, C. J. in Worthington u. Hylyer, 4 Mass. 196, 205. " But if the description be sufiBcient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected." Ibid. Where a plan is referred to for further description, the lines, courses, distances, references to monuments, and other particulars appearing thereon, are to be as much regarded as the true description of the land conveyed as they would be if expressly recited in the deed. Magoun v. Lapham, 21 Pick. 135, 137. — Farnsworth v. Taylor, 9 Gray 162, 166. — Morgan i;. Moore, 3 Gray 319. — Parker v. Bennet, 11 Allen 388. — Rodgers v. Parker, 9 Gray 445, 447. — Richardson v. Bigelow, 15 Gray 154. But compare Light v. Goddard, 11 Allen 5. DBSCEIPTION. 15 Where a deed contains two inconsistent descriptions of the land conveyed, the more certain and particular description must govern. For example, a description by metes and bounds will be followed rather than a reference to the grant- or's title-deeds. Dana ■;;. Middlesex Bank, 10 Met. 250, 255. Melvin v. Props. Locks & Canals, 5 Met. 15, 27. But if the particular description be uncertain and impos- sible, it will be controlled by an intelligible, though general, description. Sawyer v. Kendall, 10 Cush. 241, 246. When the description is clear and unambiguous, parol evi- dence is not admissible to control its effect by showing the intention of the parties, and the description may be in a legal sense clear and unambiguous, although its construction may involve questions of considerable difficulty. Bond v. Pay, 12 Allen 86. — S. C. 8 Allen 212. " Doubtful words and provisions are to be taken most strongly against the grantor, he being supposed to select the words which are used in the instrument." Adams v. Proth- ingham, 3 Mass. 352, 361. See also 2 Met. 240 — 2 Cush. 331. "A grant of any principal thing shall be taken to carry with it all which is necessary to the beneficial enjoyment of the thing granted, and which it is in the power of the grantor to convey." Per Shaw C. J. in Johnson v. Jordan, 2 Met. 239. — See also 2 Cush. 331. " Whenever land is occupied and improved by buildings or other structures designed for a particular purpose, which comprehends its practical beneficial use and enjoyment, it is aptly designated and conveyed by a term which describes the purpose to which it is thus appropriated." Bigelow J. in Johnson v. Eayner, 6 Gray 107, 110. Thus a grant of a well carries the soil covered by and used with it. Same case. And a conveyance of a wharf and dock will include the flats 16 DEEDS. lying in front thereof. Doane v. Broad St. Ass. 6 Mass. 332. — Ashby V. Eastern R. R. Co. 5 Met. 368. So an exception of a mill will exclude from the conveyance the land under the mill and adjacent to it, so far as necessary to its use and com- monly used with it. Forbush v. Lombard, 13 Met. 109. " The grant of a mill carries with it by necessary implication the right to the use of the watercourse coming to the mill and furnishing power for working it, and also to the canal or raceway which carries the water from the mill, to the full ex- tent of the grantor's right and power so to grant them." Richardson v. Bigelow, 15 Gray 154, 156. And where land was conveyed " with all the buildings standing thereon except the brick factory," the land on which the factory stood and the water-privilege appurtenant thereto were held not to pass. Allen V. Scott, 21 Pick. 25. So where " the town pound " was excepted, the exception was held to cover thfe land on which the pound stood. Wooley v. G-roton, 2 Cush. 305. But where one conveyed a " highway twenty feet wide," it was held that the fee did not pass, but only an easement. Jamaica Pond Aqueduct Co. v. Chandler, 9 Allen 159. " Being the same premises," &c. For the convenience of those who may afterwards have occasion to examine the title to the estate in the Registry of Deeds, this reference to the deed by which the grantor acquired his title ought always to be made. When releases, assignments of mortgages, . 196. As to the law relative to release of dower prior to the Rev. St. see decision of Parsons, C. J. in Fowler v. Shearer, EELBASE OP DOWEE AND HOMESTEAD. 47 7 Mass. 14, 20. See also Page v. Page, 6 Cush. 197 — Stearns V. Swift, 8 Pick. 532. To be valid for the purpose of releasing dower, a deed must contain words importing such release. Thus a deed in which the only mention of the wife's name was in the in testimonium clause, which read — "In witness whereof I, the said A. B., and S. B., my wife, have hereunto set our hands," &c., was held insufficient to bar dower. Lufkin ■;;. Curtis, 13 Mass. 223. The same was held of a deed in which the wife joined in the following form — " In witness whereof I, the said A. B., with S., my wife, in token of her assent thereto, have here- unto set our hands " &c. Leavitt v. Lamprey, 13 Pick. 382. See also Catlin v. Ware, 9 Mass. 218 — Melvinu Props. Locks & Canals, 16 Pick. 137. But in Learned v. Cutler, 18 Pick. 9 it was held that it was not necessary that dower should be released eo nomine, but that any other words showing an in- tention on the wife's part to relinquish her dower would be sufficient. And it was said that if she joined with her husband in the sale and conveyed the land jointly with him, this gen- erally would be a sufficient indication of her intention to exclude herself from any claim of dower. This case however was decided upon the statutes existing prior to the Rev. St., and which did not contain the words " and therein releasing her claim to dower," which are found in the latter. As to the proper form for a subsequent deed releasing dower and executed jointly by husband and wife, see Stearns V. Swift, 8 Pick. 532, 536. A writing signed by a married woman, but not sealed nor acknowledged, will not in any way work an alienation of her dower. Giles v. Morse, 4 Gray 600. When the husband is under guardianship, the wife may release her dower by joining in the deed with the guardian. Gen. St. c. 90, s. 8, — c. 108, s. 11, 48 DEEDS. When a married woman is insane, a guardian may be ap-. pointed, and her' rights of dower and homestead released by him. See Gen. St. c. 108, s. 19-25. No release of dower will be required where the seizin of the grantor has been only instantaneous, for in such case the grantor's wife will acquire no title to dower. 4 Kent Com. 39. Thus where a deed and a mortgage back to the grantor are executed at the same time and as parts of one transaction, no release of .dower will be needed in the mortgage. Hol- brook V. Finney, 4 Mass. 566. And the same rule holds although such mortgage be given to a third person. King v. Stetson, 11 Allen 407 — Clark v. Munroe, 14 Mass. 351. Nor is any release of homestead required in such cases. New England Jewelry Co. v. Merriam, 2 Allen 390. In this case it was decided that, although the date of the deed was earlier than that of the mortgage, this fact would not affect the the result, provided the two instruments were actually exe- cuted simultaneously. Nor in a conveyance of an estate which the grantor holds only as trustee and without any beneficial interest in himself. See 4 Kent Com. 42, 43. Nor in a conveyance of wild lands. Gen. St. c. 90, s. 12. Nor when a jointure or pecuniary provision in lieu of dower has been settled on the wife before marriage in accordance with Gen. St. c. 90, ss. 9 & 10. " In witness whereof," &c. It is not necessary that the in testimonium clause should contain words indicating that the parties have affixed their seals. It is sufficient if it should otherwise appear to have been done, and where seals are in fact affixed to an instrument the legal presumption is that they were placed there as the seals of the parties. Mill Dam Foundry v. Hovey, 21 Pick. 417, 428. - Bradford v. Randall, 5 Pick. 496. DATE. • SIGNATTTEE.* — SEAL. 49 " This first dat op," &c. In the absence of evidence to the contrary, the presumption is that a deed was executed on the day on which it bears date, and the fact that it was not acknowledged until a later day does not affect this presump- tion. Smith V. Porter, 10 Gray 66. Evidence is admissible to show that a deed was delivered at a time subsequent to that of its date. Fairbanks v. Met- calf, S Mass. 230, 240. " So insignificant is the mere date of a deed that the deliv- ery may be averred and proved to be either before or after the date ; and if an absurd or impossible date, or no date at all, be found, the grantee may prove the time of execution, if important to be proved, by witnesses." Per Parker, C. J. in Harrison v. Trustees of Phillips Academy, 12 Mass. 456, 463. SiGNATUEE. In this Commonwealth sealing, without sign- ing, is not a sufficient execution of a conveyance of land. Gen. St. c. 89, s. 2. — Hutchins v. Byrnes, 9 Gray 367, 369. A signature by initials only has been held to be good in the case of a writing not under seal, whether equally good in a deed, qucere. See Sanborn v. Flagler, 9 Allen 474, 478. Where one named as a party in a deed signs his name in the proper place for the name of a witness, evidence is admis- sible to show that he intgaded to sign as a party and not as a witness. Richardson v. Boynton, 12 Allen 138. Seal. " Anciently a seal was defined to be an impression on wax ; but it has long been held that a seal by a wafer or other tenacious substance, upon which an impression is or may be made, is a valid seal." Per Wilde, J. in Tasker v. Bartlett, 5 Gush. 359, 364. The seal in this case was made of gummed paper with an impression upon it and affixed to the deed by moistening the gum, without the addition of any 50 ■ DEEDS. wafer or wax, and it was held to be a good seal. See Bradford v Randall, 5 Pick. 496, 497. It seems that for the seal of an individual it is necessary that there should be affixed to the deed a wafer, wax, gummed paper or some other tenacious substance capable of receiving the impression of a seal upon it, and that a mere impression on the paper of the deed or a scrawl will not be sufficient. See Bates v. New York Central R. R. Co., 10 Allen 251, 254, — Commonwealth v. Griffith, 2 Pick. 11, 18. But qucBre whether the rule laid down in the case of Hendee v. Pinkerton cited below, though in terms confined to the seals of corpora- tions only, should not properly apply equally to those of individuals. For the seal of a court, public office, or corporation it is provided by statute that an impression of the official seal, made upon the paper to which it is affixed, shall be sufficient. Gen. St. c. 3. s. 7, cl. 15. And in a case arising upon a deed made prior to the existence of any such statute provision as the above relating to the seals of corporations, it was decided that a distinct, visible, and permanent impression of a corpor- ate seal upon and into the substance of the paper on which a conveyance was written, without the addition of any wafer or other substance, constituted a valid seal of a corporation. Hendee v. Pinkerton, Jan. Term, 1867 (not yet reported). But it has been held to be no sufficient seal, where a fac simile of the seal was printed upon the instrument at the same time and by the same agency as the blank form printed thereon, to be afterwards filled up and signed by the officers of the cor- poration. Bates V. N. Y. Central R. R., 10 Allen 251. Several persons may seal by one seal, but in such case it is proper, though not absolutely necessary, that the in testimo- nium clause should read thus — " have hereunto set our hands and our common seal." Tasker v. Bartlett, 5 Cush. 359, 364. Mill Dam Foundry v. Hovey, 21 Pick. 428. ATTESTATION. 51 If a party subBcribes his name and affixes his seal to a deed purporting to be the deed of another, and in the body of which he is not mentioned or referred to, it would seem that he is not in any way bound or affected by such deed. See Catlin V. Ware, 9 Mass. 218 — Melvin v. Props. Locks & Canals, 16 Pick. 137. " Signed and sealed in presence op." It is customary to write this — " Signed, sealed, and delivered " Ac, but as a statement that the deed has been delivered in the presence of the attesting witnesses is generally not in accordance with the facts, it would seem advisable, as a general rule, to omit this word. " A deed is valid without attesting witnesses. At the same time it is proper to add that as the attestation of witnesses Jeffords such an easy and effectual mode of proof as may en- able a grantee to supply the want of an acknowledgment and obtain the registration of his deed, where acknowledgment is wanting," (See Gen. St. c. 89, ss. 20-27) "and adds greatly to the credit of a deed, every conveyancer of common pru- dence, and every gra^e in the exercise of due care, will per- ceive the propriety of having a deed duly attested by wit- nesses." Per Shaw C. J. in Dole v. Thurlow, 12 Met. 157, 166. — Thacher v. Phinney, 7 Allen 149. See also Brigham v. Palmer, 3 Allen 450 for a statement of the theory of the law regarding attesting witnesses. It may be remarked however that an attesting witness is often the cause of trouble, inasmuch as the law requires that upon proving the deed he should be called, or his absence accounted for, even though the personj,whose signature is at- tested, is himself present and competent to testify; (Brigham V. Palmer, 3 Allen 450 — 1 Gr. Ev. sect. 569) and it would seem on the whole to be undesirable to have the signature 52 DEEDS. to a deed attested when, as is so often the case, the wit- nesses are less well known and less likely to be easily found than the party whose signature they attest, or when that signature is one which is well known in the community and which can be readily identified and sworn to by numerous individuals. An attesting witness is, however, of importance upon a promissory note under our statute of limitations. Gen. St. c. 155, s. 4. Noting op Alterations &c. It is important to note in the attestation clause all material alterations or interlineations which may have been made in the body of the instrument, for if made by the grantee after the execution and delivery of the deed, they render it void, and the fact that they are so noted affords a presumption that they were duly made before execution. If however the alterations are immaterial, — that is, such as do not change the legal tenor and effect of the instrument, — it is not necessary that they should be noted, for whenever made, whether before or after the execution of the instrument, they will not affect its validity. 1 Gr. Ev. sect. 564 — 2 Pars. Cont. 224 — Wil^ v. Armsby, 6 Cush. 314 — Ely V. Ely, 6 Gray 439 — Fay v. Smith, 1 Allen 477 — Ives V. Farmer's Bank, 2 Allen 236. — Basford v. Pearson, 9 Allen 387. — Adams v. Frye, 3 Met. 103. — Brown v. Pinkham, 18 Pick. 172.— Smith v. Crocker, 5 Mass. 538, 54Cl. It is equally unnecessary to note alterations when, as is often the case, the instrument shows on its face that they were made before execution. But no alteration in a deed, made after the estate conveyed has vested in the gra||tee, can divest or invalidate his title, it '' may deprive him of his remedies upon the covenants but not of his right to hold the property." Chessman v. Whittemore, 23 Pick. 231.— Kendall -y. Kendall, 12 Allen 91. — Hatch u ALTERATIONS. — STAMPS. 53 Hatch, 9 Mass. 307. —Hunt v. Adams, 6 Mass. 519. — Smith V. Crooker, 5 Mass. 538. As to the effect of the material alteration of a deed by the grantor or by a stranger, as by tearing off the seal, whether by accident or design, see Powers v. Ware, 2 Pick. 451, 457. If blanks are filled in after a deed has been signed and sealed by the grantor, the deed will not be vaUd unless such al- terations are made by the grantor himself or in his presence and by his direction, or by his attorney created by a power under seal, or unless the filling of the blanks is not material to the validity of the instrument, and does not alter its legal tenor and effect. Burns v. Lynde, 6 Allen, 305. — Basford v. Pearson, 9 Allen 387. — Warring v. WiUiams, 8 Pick. 326. — Smith V. Crooker, 5 Mass. 538. — Hunt v. Adams, 6 Mass. 519. Internal Revenue Stamps. The United States Revenue Laws require that upon every " deed, instrument, or writing, whereby any lands, tenements, or other realty sold shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons by his, her, or their direction " there shall be affixed stamps to the amount of fifty cents for every five hundred dollars, or fractional part thereof, of the " consideration or value " of such conveyance. Inter. Rev. Law (as passed 30 June 1864 and amended by Acts of 3 March 1865, 13 July 1866, and 2 March 1867,) s. 151 and Schedule B. Sow Cancelled. Upon all stamps so afiSxed " the person using or aflBxing the same shall write the initials of his name and the date upon which the same shall be attached or used, so that the same may not be used again." Ibid. s. 156. Every document " made or purporting to be made in any foreign country to be used in the United States, shall pay the same tax as is required by law on similar instruments or 54 DEEDS. documents when made or issued in the United States ; and the party to whom the same is issued, or by whom it is to be used, shall before using the same, affix thereon the stamp or stamps indicating the tax required." Ibid. s. 163. Exemptions. " All official instruments, documents, and pa- pers issued by the officers of the United States government, or by the officers of any State, county, town, or other munici- pal corporation, shall be, and hereby are, exempt from taxa- tion : Provided : That it is the intent hereby to exempt from liability to taxation such State, county, town, or other muni- cipal corporation, in the exercise only of functions strictly be- longing to them in their ordinary governmental and municipal capacity." Ibid. s. 154. Under this section it is claimed that deeds conveying lands belonging to a city or town do not re- quire to be stamped. No stamp is required " on any certificate of the record of a deed or other instrument in writing, or of the acknowledge ment or proof thereof by attesting witnesses." Ibid. s. 160; Stamping by collector in cases of doubt. Whenever it is doubtful whether any stamp is required upon an instrument, or where the amount of the stamp required is doubtful, such instrument may, before it is issued or used, be presented to the collector, who shall thereupon stamp it as exempt from stamp duty, or shall affix the stamp he deems to be proper, and such instrument shall then " be received in evidence in all courts of law or equity, notwithstanding any objection made to the same by reason of it being unstamped, or of it being insufficiently stamped." Ibid. s. 162. Effect of faalwre to stamp. "Any person or persons who shall make, sign, or issue, or who shall cause to be made, signed, or issued, any instrument, document, or paper of any kind or description whatsoever " " without the same being duly stamped, or having thereon an adhesive stamp for denot- STAMPS. 55 ing the tax chargeable thereon, and cancelled in the manner required by law, with intent to evade the provisions of this act, shall, for every such offence, forfeit the sum of fifty dollars, and such instrument, document, or paper," " not being stamped accprdirig to law, shall be deemed invalid and of no effect : Provided: That the title of a purchaser of land by deed duly stamped shall not be defeated or affected by the want of a proper stamp on any deed conveying said land by any person from, through, or under whom his grantor claims or holds titles." Ibid. s. 158. Whether a failure properly to stamp an instrument, if not intentioncd, will invalidate it, quaere. See Desmond v. Norris, 10 Allen 250 — Hugua v. Strickler, 19 Iowa 413. " No deed, instrument, document, writing, or paper, requir- ed by law to be stamped, which has been signed or issued without being duly, stamped, or with a deficient stamp, nor any copy thereof, shall be recorded, or admitted, or ujed as evidence in any couri^ until a legal stamp or stamps, denoting the amount of tax, shall have been affixed thereto, as pre- scribed by law." Inter. Rev. Law s. 163. " It shall not be lawful to record any instrument, document, or paper required by law to be stamped, unless a stamp or stamps of the proper amount have been affixed, and cancelled in the manner required by law ; and the record of any such instrument, upon which the proper stamp or stamps aforesaid shall not have been affixed and cancelled as aforesaid, shall be utterly void, and shall not be used in evidence." Ibid. s. 152. Remedy in case of failure to affix proper stamps. Where an instrument has been made or issued without being dufy stamped, " any party having an interest therein " may, upon application to " the collector of the revenue of the proper district " and the payment of a penalty, have such instrument, 56 DEEDS. or if it be lost, a copy thereof, etamped by such collector, " and the same shall thereupon be deemed and held to be as valid, to all intents and purposes, as if stamped when made or issued." And it is further provided that if such application is made " within twelve calendar months after the making or issu- ing " of such instrument, the collector may in certain cases re- mit the penalty. And the instrument or copy may then be recorded anew, and such instrument, or copy, or record " may be used in all courts and places in the same manner and with the like effect as if the instrument had been originally stamped." " But no right acquired in good faith before the stamping of such instrument or copy thereof, and the recording thereof as herein provided, if such record be required by law, shall in any manner be affected by such stamping as aforesaid." Ibid. s. 158. • II. — QUIT-CLAIM DEED. Know all men by these presents that I, A. B., of &c., in consideration of ten thousand dollars to me paid by C. D., of &c. the receipt whereof is here- by acknowledged, do hereby remise, release and forever quit-claim unto the said C. D. a certain parcel of land &c. To have and to hold the above-released premises, with the, privileges and ap- purtenances to the same belonging, to the said C. D. and his heirs and assigns to his and their use and behoof forever. And I do hereby, for myself and my heirs, executors and administrators, covenant with the said C. D., and his heirs and assigns, that the released premises are free from all incumbrances made or suffered by me, and that I will, and my heirs, executors and administrators shall, warrant and defend the same to the said C. D. and his heirs and assigns against the lawful claims and demands of all persons claiming by, through, or under me, but against none other. And for the consideration aforesaid I, S. B., wife of the said A. B., do here- by release unto the said C. D. and his heirs and assigns all right of and to both dower and homestead in the said premises. In witness whereof we, the said A. B. and S. B., have &c. QUIT-CLAIM DEEDS. 57 NOTES. " Remise, release and foeever quit-claim." According to the old and technical rule of the common law, a deed in this form would be ineffectual to pass any right to one who was not already seized or in possession of the estate. But our Supreme Court, acting upon the principle, before referred to in the general remarks upon Deeds, that although an instru- ment be not, technically, adapted to execute the intent of the parties, it shall be held to operate in some other way in order to effect such intent, have held that a deed in the above form should be effectual, although the releasee be not in possession. Pray v. Pierce, 7 Mass. 381 —Russell v. Coffin, 8 Pick. 148. This decision was incorporated into the Revised Statutes, which provide that — "A deed of quit-claim and release of the form in common use in this State shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale." Rev. St. c. 59, s. 5. The same provi- sion is repeated in Gen. St. c. 89, s. 8. One who takes a quit-claim deed of all the grantor's right, title and interest in an estate, with a covenant of warranty against all persons claiming under the grantor, cannot recover back the purchase money upon a total failure of the grantor's title, although at the time of the sale both parties supposed the title to be perfect. And it would seem that the same rule would hold in the case of a simple quit-claim deed without the words, " right, title and interest " and without any cove- nant whatever. Earle v. DeWitt, 6 Allen 520. But the pur- chase money may be recovered back if the title fails for want of authority in the grantor to act in the capacity in which he professes to act, — as for instance if he assumes to act as assignee in insolvency without due appointment, (Earle v. Bickford, 6 Allen 549) as attorney without authority, (Shearer 58 DEEDS. V. Fowler, 7 Mass. 31) or as guardian under a license to sell without having given the bond or taken the oath re- quired by law. ("Williams v. Reed, 5 Pick. 480.) In the printed blanks in common use a space is generally left before the word " remise " for the insertion of some other word by the pen, but it is not easy to see what word would be of any particular avail in this place. Covenants. The remarks before made relative to the covenants in a warranty deed apply equally to those of the deed now under consideration. It may be mentioned that, when there are more than one grantor, for the word " me " in the covenants should be inserted " us or either of m." 3. — MORTGAGE DEEDS. The mortgages in general use may be divided into two classes, — common mortgages, and power of sale mortgages. I. — COMMON MORTGAGE. This differs from a warranty deed only in the insertion be- fore the in testimonium clause of two clauses substantially as follows : — Provided nevertheless that if the said grantor, or his heirs, executors, ad- ministrators, or assigns, shall pay unto the said grantee, or his executors, administrators, or assigns, the sum of one thousand dollars in three years, from this date, with interest semi-annually at the rate of six per cent, per annum, and until such payment shall pay all taxes and assessments on the granted premises ; shall keep the buildings thereon insured against fire in a sum not less than one thousand dollars for the benefit of the said grantee and his ex- ecutors, .Jidministrators and assigns, at such Insurance Ofiice as he or they shall approve ; and shall not make or suffer any strip or waste of the granted premises, — ■ then this deed, as also a note of even date herewith, signed by the said A. B., whereby he promises to pay to the said grantee or order the said sum and interest at the times aforesaid, shall both be void. COMMON MORTGAGES. 59 But it is agreed that, until default in the performance of the condition of this deed, the grantor and his heirs and assigns may hold and enjoy the granted premises and receive the rents and profits thereof. NOTES. " Grantor, or his heirs, executors, administrators, or ASSIGNS." Many mortgages are made without inserting the word " assigns " in this connection, but it would seem that this word is equally as important as the ones preceding it, for the mortgagor is quite as likely to assign and convey away his interest in the estate, as to die and leave it to his heirs. " The sum op " &c. If the amount be payable by instal- ments the deed should read somewhat as follows, — " the sum of three thousand dollars in three several instalments, namely, — one thousand dollars in one year, — one thousand dollars in two years, — and one thousand dollars in three years, from this date, — with interest " &c. Three days' grace are to be allowed in computing the time for the payment of the principal sum due on a mortgage note, or of any instalment thereof payable at a day certain, so also of any interest falling due at the same time with the principal or any instalment of the principal. Whether grace is to be allowed upon all interest made payable at a fixed time, qucere. Coffin V. Loring, 5 Allen 153. " Shall keep the buildings thereon insured " &c. As to the riglits of the parties in policies of insurance p.rocured pursuant to this stipulation, see Graves v. Hampden Ins. Co., 10 Allen 281. See also Felton v. Brooks, 4 Cush. 203. — Merrifield v. Baker, 9 Allen 29. "Ant strip or waste" &c. The clause relative to waste 60 DEEDS. by the mortgagee is not often inserted, and does not seem to be of much importance. " As ALSO A NOTE " &c. It is not necessary that a note, or other collateral personal security for the debt, should be given with the mortgage. Rice v. Rice, 4 Pick. 349. " Then this deed " &c. In a case where this provision, that upon fulfilment of the condition the deed should be void, was omitted, it was held that the deed should still be consid- ered a mortgage. Steel v. Steel, 4 Allen 417. " But it is agreed " &c. This clause is generally intro- duced by the words — "And provided also," but the word provided is technically and properly used only for introducing a condition. It was therefore correctly employed in com- mencing the preceding paragraph, which is the true condition of the mortgage. This clause however is by no means an- other condition, as would seem to be implied by the use of the words — " and provided also," but is a mutual agreement between the mortgagor and mortgagee. This agreement that the grantee may retain possession &c. is rendered necessary by the principle that, unless there be an agreement to the contrary, a mortgagee has a right to im- mediate possession, and may eject the mortgagor before breach of the condition. Lackey v. -Holbrook, 11 Met. 458 — Gen. St. c. 140, s. 9. Such agreement however, though not ex- pressly set forth, may in some cases appear by necessary imr plication from the terms of the condition of the mortgage. Wales V. Mellen, 1 Gray 512. In the blank forms in general use this clause only stipulates that " until default " 3 In presence of "» i M. N. I If there be more than one promisor the note should read — " we jointly and severally promise." When interest is reserved at a rate higher than six per cent, it will be well to add to the note words to this eflfect, " during said term and for such farther time as the said principal sum or any part thereof shall remain unpaid ; " otherwise, in case the note should not be paid when due, the mortgagor might claim that after maturity only six per cent could be recovered, the express agreement for the higher rate extending only to that date. See St. 1867, c. 56. As mortgage notes are often allowed to run for many years after maturity, it is important that they should be signed in the presence of an attesting witness, as thereby they are brought within those provisions of the Statute of Limitations which allow an action to be brought within twenty years after the cause of action accrues. 'Gen. St. c. 155, s. 4. It is not customary to stamp a mortgage note, it being pro- 68 DEEDS. vided in the statute that " whenever'any bond or note shall be secured by a mortgage, but one stamp shall be required to be placed on such papers ; Provided : That the stamp duty placed, thereon shall be the highest rate required for said in- struments or either of them." Inter. Rev. Law, s. 160. GUARANTY OF MORTGAGE NOTE. Boston, 1st January, 1867. For value received and in .consideration of the loan for ■which the above note is given, which loan is this day made at our request, we hereby jointly and severally guarantee to C. D. above-named, his executors, administrators or assigns, the payment of the above note and interest and in default of payment by the promisor, we hereby promise to pay the same on demand, waiving demand on the promisor and notice. For a case relating to a guaranty of a mortgage note, see Crocker v. Gilbert, 9 Cush. 131. ASSIGNMENT OF MORTGAGE. Know all men that I, G. D., of &c., the mortgagee named in a certain mortgage deed given by A. B. to secure the payment of one thousand dollars, dated 1st January 1865, and recorded in Suffolk Registry, liber 901, folio 74, in consideration of one thousand dollars to me paid by E. F., of &o., the re- ceipt whereof is hereby acknowledged, do hereby assign, transfer and set over to the said E. F. the said mortgage deed, the note and claim thereby secured, and all my right, title, and interest in the estate thereby conveyed* To have and to hold the same to the said E. F. and his heirs and assigns to his and their use and behoof forever. In witness whereof I, the said C. D., have hereunto set &c. NOTES. If the assignment be endorsed upon the mortgage, it should read — " that I, C. D. of &c., the within named mortgagee, in consideration of" ^^^ ^ M. N. E. F. f'^"^^ Q_ p 5. "^"^ .6 80 DEEDS. COMMONWEALTH OF MASSACHUSETTS. Sujfolk ss. Boston, 7th May 1868. Then personally appeared the above- named E. F. and acknowledged the foregoing instrument to be the free act and deed of himself and of the said A. B. before me X. Y. Justice of the Peace. AFFIDAVIT. I, E. F., of &c., the assignee of a certain mortgage deed given by A. B. to C. D., dated &c., and recorded &c., on oath depose and say that default was made in the payment of the principal sum mentioned in the condition of said mortgage deed and of the interest thereon, the said principal and six months interest having become payable on the fourth day of January last and not having been then or at any time paid or tendered to any person authorized to receive the same ; and that, pursuant to the provisions of said mortgage deed, I published on the second, ninth, and sixteenth days of April now last past in the Boston Post, a newspaper published in Boston aforesaid, a notice of which the following is a true copy. mortgagee's sale. By virtue of a power of sale contained in a certain mortgage deed given by A. B. to C. D., dated &c., and recorded &c., will be sold at public auction upon the premises [or, at the office of N. A. T. & Co. No. — , Street, Boston,] on Wednesday the twentieth day of April 1868 at eleven o'clock in the forenoon all and singular the premises conveyed by said mortgage deed, namely, — a certain parcel of land &c. &c. E. F. Assignee of said Mortgage. And I. further depose and say that pursuant to said notice and at the time and place in said notice appointed, the said default still continuing, I sold the premises conveyed by said mortgage deed at public auction by N. A. T., a duly licensed auctioneer, to G. H., of &c., for the sum of eleven hundred dollars, which amount was bid by the said G. H., and was the highest bid made therefor at said auction, and I have this day in pursuance of said power con- tained in said mortgage delivered to said G. H. the foregoing deed of said mortgaged premises. Witness my hand this eleventh day of May A. D. 1868. E. F. SALE tTNDEK POWER OF SALE MORTGAGE. 81 COMMONWEALTH OF MASSACHUSETTS. Suffolk ss. Boston, llth May 1868. Then personally appeared the above- named E. F. and made oath that the foregoing affidavit by him subscribed is true, before me. X. Y. Justice of the Peace. NOTES. The statute (Gen. St. c. 140, s. 42) requires that the above affidavit should be filed in the Registry of Deeds within thirty days after the sale, and it is further provided (Gen. St. c. 140, s. 43) that, if in due form, the affidavit or a duly certified office copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed. It is difficult to determine exactly what facts the statute in- tends that the affidavit should cover, — whether, for instance, it can affiard evidence of the default in the payment of principal or interest, — but as it would ' appear firom section 43 that it cannot be used as evidence at all, unless it includes aU the facts, whatever they may be, which the statute intended should be included, the only safe way in framing such an affi- davit is to set forth all facts which, like the default in the pay- ment of interest or principal, though they are not strictly the " acts in the premises " of the party making the sale, yet are important elements in making it " appear " " that he has sold the property in the manner required by the power." It is to be noticed also that the statute requires that the affidavit should set forth the facts "/uUy and particularly." Where the mortgage requires an entry on the premises before the sale, the fact of such entry should of course be set forth in the affidavit. See Roarty v. Mitchell, 7 Gray 243. But it has been decided that the affidavit need not state the rendering of an account or the disposition that has been made of the pur- chase money. Childs v. Dolan, 5 Allen 319. 82 DEEDS. It would seem indeed to be a serious question whether a failure to record a proper certificate will not have the efiect^not merely to deprive the parties of the most convenient evidence of the regularity of the proceedings in reference to the sale, but also to render the sale itself wholly null and void. The words of the statute are (Gen. St. c. 140, s. 42) that the mort- gagee &c.' " sJicdl within thirty days " &c. "file a copy of the notice," &e. It will be found not only to be a matter of convenience, but to add to the authenticity of the instrument, to use for the copy of the notice in the affidavit a printed slip, cut from the paper in which it was published, and pasted in its proper place upon the affidavit. In stating in the deed or affidavit the date on which the principal or interest became payable, it should be remembered that three days of grace E^re to be allowed in fixing the time, of payment of the principal and of all instalments of princi-, pal, — also of interest falling due at the same time with in-, stalments of principal, and perhaps of all interest, whether sa falling due or not. Coffin v. Loriug, 5 Allen 153. And in reckoning the days of grace it is of course important to no,- tioe whether the third day falls on a Sunday or legal holiday. It seems that a sale at public auction iinder a power of sale will not be valid unless made by a licensed auctioneer. Hos- mer v. Sargent, 8 Allen 97, 99 — Gen. St. c. 50,, s. 9. The mortgagee may, in the exercise of a reasonable discre- tion, adjourn the sale from time to time, and it is not necessary that this should be done through the agency of a licensed auctioneer nor that any new notice of the sale should be given. Hosmer v. Sargent, 8 Allen 97. (This case relates to a mort- gage of personal property, but it would seem that the above rule must be equally applicable to mortgages of real estate.) To the deed and a,ffidavit as given above is sometimes add- CONVEYANCES TO USES. 83 ed for greater certainty an assignment of the mortgage, but as according to the cases cited above at page 69, the deed must itself act as an assignment of the mortgage, such addi- tional assignment would seem to be superfluous. It is necessary that the sale should purport to be a sale of the estate and not of the equity of redemption. Fowle v. Mer- rill, 10 Allen 350. Instead of a simple sale pursuant to the power, a mortgagee may obtain a decree of Court for a sale in the manner provid- ed by Gen. St. c. 140, s. 38, 40, 41. It seems that a mortgagor will have no remedy where the acts of the mortgagee in execution of the power of sale, al- though strictly in accordance with the terms of the deed, are performed in a secret manner with the view and effect of preventing the fact of the sale from coming to the knowledge of the mortgagor. Randall v. Hazleton, 12 Allen 412, 415, 418. Stamp. The deed must, of course, like other deeds, be stamped according to the value of the estate conveyed, — the affidavit, under Act of March 2nd. 1867, s. 9, is exempt from stamp duty. CONYEYANCES TO USES. Though the old English statute of 27 Henry VIII., known as the Statute of Uses, is theoretically an important element in accounting for the validity of the deeds in common use, it is seldom of any direct practical importance to the convey- ancer in this country. There are cases however where, in framing deeds to accomplish certain special purposes, the aid of this ancient statute may sometimes be directly availed of 84 DEEDS. even in this State and at the present day. Thus where one or more persons, owning the fee or an interest in the fee of an estate, wish so to convey that the estate may thereafter he held by themselves in a different manner from that in which it had before been held, or wish to admit others to an interest with them in the estate, this statute affords the means of ef- fecting the object by a single instrument. So also where a husband desires to make a conveyance to his wife, or a wife to her husband, this may be accomplished by a single convey- ance to uses instead of by two deeds as it is generally done. A few such deeds have been the subject of decisions by our Supreme Court. For instance, husband and wife, being seized in fee in her right, conveyed the estate to C. D. to the use of themselves, their heirs and assigns, and the heirs and assigns of the longest liver of them ; and it was held that 0. D. stood seized to the use limited in the deed, and that the Statute executed the use, thereby making the husband and wife complete owners of the estate as joint tenants. Thatcher V. Omans, 3 Pick. 521. Thus the difficulty of making the same parties both grantor and grantee in the same deed was avoided, and the third party, C. D., after affording a mere receptacle into which the estate might pass out of the grant- ors, delivered it back instantaneously by virtue of the. Statute, without its having been for the smallest fraction of time in any way subject to his disposal or liable to be affected by his acts. Similar cases may be found in Johnson v. Johnson, 7 Allen 196 — BuUard v. Goffe, 20 Pick. 252. The old Statute of Uses may also be availed of where it is desired to create a freehold to commence in futuro, to cause an. es- tate to shift from one person to another by matter ex post facto, or to accomplish other objects often of importance in England, but which, by reason of the different habits and customs of the people, are seldom sought after here. In CONVEYANCES TO USES. 85 Morgan v. Moore, 3 Gray 319, an estate had been conveyed to A. in fee, in trust for certain purposes during the life of B., and upon the death of B. to the use of C. and his heirs, and it was held that upon B's. death the Statute of Uses immedi- ately executed the use limited in the deed, and the fee there- upon became vested in C. without any conveyance to him from A. See also Davis v. Hayden, 9 Mass. 514, where an estate had been conveyed to A. and his heirs in trust for B. during her life, then to the use of her husband during his life, and then to the use of the joint heirs of their bodies. Where a use is limited upon a use, it is held that the Statute executes only the first use, while the second is void at law and only to be enforced in equity as a trust. Hence if in a deed of bargain and sale,' which operates in all cases by way of raising a use which the Statute executes, a use be limited to a party other than the grantee, it will be a use upon a use and as such not executed by the Statute. A conveyance in the form of a deed of bargain and sale should therefore never be adopted where the intention is to take advantage of the eifect of the Statute of Uses ih the manner we have been considering. It has however been decided that, even though the words " bargain and sell " be contained in a conveyance to uses, the Court will, in order to efiectuate the intent of the parties and for the purpose of allowing the use limited to be executed by the Statute, construe the deed,' not as a deed of bargain and sale, but as a feofiment. See Thatcher v. Omans, 3 Pick. 521, 530. — Stearns v. Palmer, 10 Met. 32, 35.— Brooks V. Jones, 11 Met. 191, 192. But though the words " bargain and sell " will not work any positive evil, it is of course preferable to employ only words proper to a feofiment, for instance, — " give, grant, enfeoff, and convey." The Gen. Sts. (c. 89, s. 8) provide that a deed of quit-claim and releaser shall be " sufficient to pass all the estate which a 86 DEEDS. grantor could lawfully convey by a deed of bargain and sale." This provision does not however require that such deed shall operate in the same manner as a deed of bargain and sale, and as a release does not in English law derive its effect from the Statute of Uses, but is a conveyance at common law, a deed using the words commonly inserted in a quit-claim deed — " remise, release and forever quit-claim " — would seem to be perfectly proper as a conveyance to uses. See also Johnson V. Johnson, 7 Allen 199, where the deed before the Court was apparently a quitrclaim deed. The following forms will serve as examples of these con- veyances to uses. CONVEYANCE BY THREE OLD TRUSTEES TO TWO CON- TTNUING AND ONE NEW TRUSTEE. To all men to whom these presents shall come A. B., C. D., and E. F., all of Boston, Massachusetts, send greeting. ■ Whereas by a certain deed, dated &c., and recorded &c., X. Y. conveyed to the said B., D., and F. a certain parcel of land hereinafter described in trust for the purposes set forth in said deed ; — and whereas it is provided in said deed that, in the event of the resignation of either of said trustees and of the appointment of a new trustee in accordance with the provisions of said trust deed, the remaining trustees and any trustee who shall so resign shall execute such deeds, conveyances and assignments as may be needful or proper- in the circumstances; — and whereas the said E. F. has resigned the said trust and G. H. of said Boston has been duly appointed by Sec. as trustee in the place of him, the said E. F. Now therefore know ye that, in consideration of the premises and of one dollar to us paid by the said G. H., we the said A. B., C. D., and E. F., trus- tees as aforesaid, do hereby remise, release and forever quit-claim unto the said G. H. all that parcel of land situated on Washington Street in said Boston and bounded as follows : — To have and to hold the above-released premises to him, the said 6. H., and his heirs, to the use of the said A. B., C. D., and G. H., and the survivors and survivor of them and the heirs of such survivor and their and his assigns, CONVEYANCES TO USES. 8'/ but nevertheless in trust for the purposes set forth in the above-mentioned deed from X. Y. to the said B., D., and F. And I, the said E. F., for myself and my heirs, executors and administra- tors, do covenant with the said A. B., C. D., and G. H. and their survivors, heirs and assigns that the above-released premises are free from all incum- brances knowingly or willingly made or suffered by me. In witness whereof we, the said A. B., C. D., and E. F., trustees as afore- said, have hereunto set our hands and seals this first day of &c. If the habendum merely expressed the estate to be given to the use of A. B., C. D., and G. H. " and their heirs and as- signs " without mention of " survivors," they would still hold as joint tenants under Gr. S. c. 89, s. 13, 14. In connection with the above form it may be remarked that, where a new trustee is appointed by the Probate or Supreme Court under Gen. St. c. 100, s. 9, the estate will vest in such new trustee by operation of law and without any conveyance, though the Court may order such conveyance as may be " proper or convenient." Gen. St. c. 100, s. 9, 10. CONVEYANCE BY HUSBAND TO WIFE. Know all men by these presents that I, A. B. of &c. (the husband) in con- sideration of one dollar to me paid by C. D. of &c. (a third party) and for other good and valuable considerations me hereto moving, do hereby remise, release and forever quit-claim unto the said C. D. a certain parcel of land &c. To have and to hold the same, with all the privileges and appurtenances to the same belonging, to the said C. D. and his heirs to the use of my wife, S. B., and her heirs and assigns forever. In witness whereof I, the said A. B., have hereto set my hand and seal this &c. DEEDS. DEED OP ADMINISTRATOR OR EXECUTOR. To all men to whom these presents shall come A. B., of Boston, Massa- chusetts, Administrator of the estate of G. M., late of said Boston, deceased, sends greeting. Whereas by virtue of a license granted to the said Administrator on the second day of March current by the Probate Court for the County of Suffolk, the estate of the said deceased hereinafter described was on the twentieth day of said March sold at public auction to C. D. of said Boston for the sum of ten thousand dollars, which amount was bid by the said C. D. and was the highest bid made therefor at said auction. Now therefore know ye that I, the said A- B., Administrator as aforesaid, in consideration of the said sum of ten thousand dollars paid by the said C. D., the receipt whereof is hereby acknowledged, do by virtue of the afore- said license hereby give, grant, bargain, sell, and convey unto the said C. D., a certain parcel of land situated on Court Street in said Boston and bounded as follows : — To have and to hold the granted premises to him the said 0. D. and his heirs and assigns to his and their use and behoof forever. And I do hereby, for myself and my heirs, executors and administrators, covenant with the said C. D. and his heirs and assigns that I am the duly ap- pointed and legal Administrator of the estate of the said G. M. ; — that the license aforesaid was granted by a Court of competent jurisdiction ; — ■ that I gave a bond to account for and dispose of the proceeds of said sale according to law, which bond was approved by the Judge of said Probate Court ; [or, that no bond was required of me upon the granting of said license] — that the notice of the time and place of said sale was given according to the order of said Court ; — and that the said premises were sold accordingly and in good faith at public auction to the said C. D. as aforesaid. In witness whereof I, the said A. B., Administrator as aforesaid, have hereunto set my hand and seal this thirtieth day of March in the year one thousand eight hundred and sixty-six. If the deed is by an executor it should read " A. B. of &c., Executor of the will of G. M." &c. The covenants in the above deed are framed with a view to adapt them to the provisions of St. 1864, c. 137. See also DEED OF ADMINISTEATOR OE EXECUTOE. 89 Gen. St. c. 102, s. 1-23, 48. These covenants are not of much importance, for the matters to which they relate are such that the purchaser may easily satisfy himself regarding them by an examination in the Registur of Probate, and ought in fact always to have such examination made. It seems that though the' covenants be expressly made by the grantor "in his capacity of administrator," he will be personally liable upon them, while the estate of the deceased will not be bound. Sumner v. Williams, 8 Mass. 162. See also 9 Met. 63,-15 Pick. 428. As to the extent to which one might be estopped from set- ting up any claim to an estate sold by him as executor &c. see p. 43. Where the deed, in the body of it, purports to be executed by a person as administrator of the estate of another, the ad- dition of the word " administrator *' to the signature is wholly unnecessary. Chadbourn v. Chadbourn, 9 Allen 173. H Where in the deed, as also in the order of Court containing the license, and in the condition of the bond, the grantor was described as an "administratrix," when in fact she was an " executrix," such misnomer was held not to invalidate the sale. Cooper V. Robinson, 2 Cush. 184, 190. A misrecital of the time when the license was granted will not render the deed invalid, provided it contains also a recital of other facts which show that the sale was made under the true license. Thomas v. Le Baron, 8 Met. 355, 361. St. 1864, c. 137 purports to point out and enumerate all the matters essential to the validity of sales of real estate by ex- ecutors &c., but, in the case of executors and administrators selling for the payment of debts, it is questionable whether such sale may not be rendered void by a matter not there re- ferred to, — namely by reason of the license not having been granted until after the expiration of the two years limited by 12 90 DEEDS. statute for bringing actions against executors or administra- tors, and when there was no debt in existence against which that statute was not an eflFectual and conclusive bar. Heath V. Wells, 5 Pick. 140, 145 and Thompson v. Brown, 16 Mass. 172 are decisions to this effect, but these cases arose prior to the existence of any statute provision similar to St. 1864, c. 137. But in the recent case of Lamson v. Schutt, 4 Allen 359, though the point is not needed for the decision of the case, it was distinctly laid down that a sale under such cir- cumstances would be wholly void and would pass no title to the purchaser. In Cooper v. Robinson, 2 Cush. 184, 190 how- ever, it was said that such sale would be good, but in this case also this was only a dictum, since it does not appear but that the license authorizing the sale in question was legally and pro- perly granted. It is to be noted that a license may in many cases be pro- perly granted even after the expiration of the two years. See Palmer v. Palmer, 13 Gray 326. — Cooper v. Robinson, 2J Cush. 184. — Hudson v. Hulbert, 15 Pick. 423. — Richmond, Petitioner, 2 Pick. 567. — Allen, Petitioner, 15 Mass. ,58. DEED OF GUARDIAN. To all men to whom these presents shall come A. B., of Boston, Massv chusetts, Guardian of L. M., a minor and child of G. M., late. of, said Boston, deceased, sends greeting. Whereas by virtue of a license granted to the said Guardian on the fifth day of January last by the Probate Court for the County of Suffolk, the in- terest of the said Ward in the real estate hereinafter described was on the thirtieth day of said January sold at public auction to C. D. of said Boston for the sum of ten thousand dollars, which amount was bid by the said C. D. and was the highest bid made therefor at said auction. DEED OP GUAEDIAN. 91 Now therefore know ye that I, the said A. B., Guardian as aforesaid, in consideration of the said sum of ten thousand dollars paid by the said C. D., the receipt whereof is hereby acknowledged, do by virtue of the aforesaid license hereby give, grant, bargain, sell and convey unto the said C. D. all the right, title and interest of the said L. M. in and to a certain parcel of land situated on Court Street in said Boston and bounded as follows : — To have and to hold the granted premises to him the said C. D., and his heirs and assigns, to his and their use and behoof forever. And I do hereby, for myself and my heirs, executors, and administrators, covenant with the said grantee and his heirs and assigns that I am the duly appointed and legal Guardian of the said L. M. ; — that the license aforesaid wjis granted by a court of competent jurisdiction ; — that I gave a bond to account for and dispose of the proceeds of said sale according to law, which bond was approved by the Judge of said Probate Court [or, that no bond was required of me upon the granting of said license ] ; — ■ that the notice of the time and place of said sale was given according to the order of said Court ; — and that the said premises were sold accordingly and in good faith at public auction to the said C. D. as aforesaid. In witness whereof I, the said A. B., Guardian as aforesaid, have hereunto set my hand and seal this first day of February in the year one thousand eight hundred and sixty-six. The covenants in the above deed are framed with a view to adapt them to the requirements of St. 1864, c. 137. — See also Gen. St. c. 102, s. 6, 24, 25, 28, 34-36, 41, 48. The remarks made on p. 89 relative to the omission of the covenants in an administrator's deed are equally applicable here. It seems that though the covenants be expmssly made by the grantor " in his capacity as guardian " he will be person- ally liable upon them, while the estate of his ward will not be bound. Donahoe v. Emery, 9 Met. 63. — Whiting v. Dewey, 15 Pick. 428. As to the form of the notice of time and place of sale, see Wyman v. Hooper, 2 Gray 141. As to guardian's deeds see further Sowle v. Sowle, 10 Pick. 376. 92 DEEDS. DEED OP SHERIFF UNDER GEN. ST. c. 103, s. 40. To all men to whom these presents shall come A. B., of Boston in the County of Suffolk and Commonwealth of Massachusetts, a Deputy Sheriff for said County, sends greeting. Whereas the said A. B., as Deputy Sheriff as aforesaid, did on the first day of &c. by virtue of an execution issued upon a judgment recovered by V. W. against X. Y. on the tenth day of &c. in the Superior Court for said County of Suffolk, seize and take all the right which the said X. Y. had on the third day of &c., being the time when the same was attached on mesne process, of re- deeming the mortgaged premises hereinafter described ; — and whereas after- wards, having duly given the notices and caused to be published the adver- tisements required by law, the said A. B. did, on the twentieth day of &c. and in accordance with said notices and advertisements, sell the said right of re- demption at public auction to C. D., of said Boston, for the sum of one thousand dollars, which amount was bid by the said C. D. and was the highest bid made therefor at said auction. Now therefore know ye that I, the said A. B., as Deputy Sheriff as afore- said, in consideration of the aforesaid sum of one thousand dollars to me paid by the said C. D., the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said C. D. all the right, which the said X. Y. had at the aforesaid time of attachment, of redeeming the par- cel of land situated on State Street in said Boston and bounded as follows : — To have and to hold the granted premises to the said C. D. and his heirs and assigns to his and their use and behoof forever, subject nevertheless to the right of the said X. Y. and his representatives to redeem the same ac- cording to law. And I, the saifM.. B., for myself and my heirs, executors, and administra- tors, do covenant with the said C. D. and his heirs and assigns that in making the aforesaid attachment, seizure, and sale, and in everything the same con- cerning, I have complied with all the rules and requirements of the law in Buch cases made and provided. In witness whereof I, the said A. B., Deputy Sheriff as aforesaid, have hereto 8fc. In a sheriff's deed, (or in any deed which is the mere exe- cution of a power given by the Statutes) there is no implied covenant in the word " give." Dow v. Lewis, 4 Gray 468. DEED UNDER POWER IN WILL. 93 A sheriff cquld not probably be required to insert any ex- press covenant in a deed given by him. But as to the force and effect of such covenant, if inserted, see Wade v. Merwin, 11 Pick. 280. A sheriff's deed will convey no title unless the description of the premises is accurately stated and corresponds with the description in the return upon the execution. Whiting v. Hadley, 3 Allen 357. A sheriff's deed will convey no title as against a subsequent purchaser or attaching creditor without notice, unless recorded within three months after the sale. Gen. St. c. 103, s. 40 -^ De Witt V. Harvey, 4 Gray 486, 490. — Houghton v. Barthol- omew, 10 Met. 138. DEED OP EXECUTOR OR TRUSTEE UNDER POWER IN WILL. Know all men by these presents that whereas E. J., late of Boston, Mas- sachusetts, in and by his last will authorized and empowered A. B. of &c., his executor therein named, in case his personal estate should prove insufficient for the payment of his just debts and legacies, to sell and Convey such por- tion of his real estate as might be needed for that purpose, as will more fully appear by reference to said will, and whereas on the 3d November 1865 the said will was duly proved and allowed by the Probate Court for the County of Suffolk and letters testamentary thereon were duly issued to the said A. B., and whereas the personal estate of said deceased has proved wholly in- sufficient for the payment of his just debts and legacies and it has become necessary to sell and convey the real estate hereinafter described for said purpose ; — Now therefore I, the said A. B., executor as aforesaid, do by virtue and in execution of the power to me given in and by said will, and of every other po.wer and authority me hereto enabling, and in consideration of ten thousand 94 DEEDS. dollars to me paid by C. D., of &c., the receipt &c., hereby ^ve, grant, bar- gain, sell and convey unto the said C. D., a certain parcel &c. To have and to hold &c. In witness whereof I, the said A. B., executor as aforesaid, have &c. The above form must be varied to meet the special pro- visions of the will in each case ; — for instance, if the will requires a sale at public auction, such sale should be set forth with sufficient particularity to show that the requirements of the will have been complied with. " As a general rule trustees, not for a charity or public trust, must join in holding or conveying trust property for the pres- ervation of the trust, and separate conveyances by each of his aliquot part or separate share will be void." Per Shaw C. J. in Chapin v. Universalist Society in Chicopee, 8 Gray 580, 583. A deed of a trustee, purporting to convey only all the right, title, and interest of the cesim que trust, will not transfer the legal title. Titcomb v. Currier, 4 Cush. 591. It seems that a deed from a trustee will convey the legal title, although no power to sell be given to the trustee in the instrument creating the trust, and no license to sell has been obtained from any competent tribunal. Goodrich v. Proctor, 1 Gray 567, 569. — Parker v. Converse, 5 Gray 336, 340.— Baldwin v. Timmins, 3 Gray 802. DEED OP ESTATE OP MARRIED WOMAN. By Gen St. c. 108, s. 2. (substantially reenacting Rev. St. c. 59, s. 2,) it is provided that — "A husband and wife may, by their joint deed, convey the real estate of the wife, which is not her separate property, in like manner as she might do DEED OP ESTATE OF MAEEIED WOMAN. 95 by her separate deed if she were unmarried ; but the wife shall not be bound by any covenant contained in such joint deed." This statute provision was merely declaratory of the law as fixed by judicial decisions. (See 10 Allen 70.) In Fowler v. Shearer, 7 Mass. 14, 21, Chief Justice Parsons says that at common law the deed of a married woman is not merely void- able but void, but that in this State by an immemorial usage, founded in necessity, a deed of conveyance executed by hus- band and wife, acknowledged and recorded, will pass the wife's lands, not only as to the husband, but as to her and her heirs ; — that this usage has never extended to make her liable to an action on the covenants in the deed further than they may operate by way of estoppel, nor to authorize her to con- vey any interest she has in lands without her husband's join- ing in the deed. There is however another theory which founds the validity of a deed conveying the real estate of a married woman, not on usage and necessity, but on the Prov. St. Mass. 9 Will. 3, s. 1, which gave authority to transfer by deed any estate which a person could alien at common law by any mode of conveyance whatsoever, and inasmuch as at common law the lands of a married woman could be aliened by her sufiering a fine and recovery with her husband, it is claimed that this statute rendered it competent for her to efiect the same object by executing jointly with her husband a deed conveying the estate. See Bartlett v. Bartlett, 4 Allen 440, 442. — Thatcher v. Omans, 3 Pick. 521, 525. As to real estate which is the separate property of a mar- ried woman under the laws of this State, it is provided by Gen. St. c. 108, s. 3, that it may be conveyed by her by a deed in which her husband joins, or with his assent in writing, or in certain cases with the consent of one of the judges of the Supreme Judicial, the Superior, or the Probate Court, and 96 DEEDS. Tipon the covenants contained in such deed she will be liable. See Basford v. Pearson, 7 Allen 504. As to what will consti- tute a sufficient " assent in writing " of the husband, see Hills V. Bearse, 9 Allen 403. The separate real estate of married women includes that held by them under ante-nuptial contracts, or conveyed or devised to their sole and separate use under St.^ 1845, c. 208, — also that which women married in this Commonwealth after June 3d, 1855 owned at the time of their marriage, or which they have since received by descent, devise, or the gift of any person except their husbands, (St. 1855, c. 304) — also that which came in either of these ways after June 27th, 1857 to any women then married in this Commonwealth, (St. 1857, c. 249) and all that has come since May 31st, 1860 or that may hereafter come by descent, devise, gift, or grant to any mar- ried woman whatever. (Gen. St. c. 108, s. 1. See also note of Commissioners on Revision of Gen. St. upon this section.) A married woman who " comes from another State or coun- try without her husband, he never having lived with her in this State " " may make and execute deeds and other instru- ments in her own name." Gen. St. c. 108, s. 29. "A wife whose husband has absented himself from thQ State, abandoning and not sufficiently maintaining her, or whose husband has been sentenced to confinement in the State prison, may upon her petition be authorized by the Supreme Judicial Court " to sell and convey her real estate. Gen. St. c. 108, s. 31. The separate deed of a married woman, except so far as au- thorized by the Statute provisions cited above, is not merely voidable, but absolutely void. Concord Bank v. Bellis, 10 Cush. 276. And it will not, even though it be a warranty deed and fraudulently dated as of a time prior to her marriage, and signed by the name she then bore, estop her or her heirs DEED OP ESTATE Of MARRIED * WOMAN. 97 from claiming the land from the grantee or from a purchaser from him without notice. Lowell v. Daniels, 2 Gray 161. (On this subject see further ant&p. 43.) Nor will a married woman's sole deed of her separate estate afford any ground upon which, after the husband's death, equity will decree the execution bj' her of a new deed. Townsley v. Chapin, 12 Allen 476. But under St. 1845, c. 208 a married woman might by her sole deed convey, subject only to her husband's tenancy by the courtesy, real estate which had been conveyed to her to her sole and separate use according to the provisions of that Statute. Beal v. Warren, 2 Gray 447, 457. See also Smith V. Bird, 3 Allen 34. Such separate conveyance was however by St. 1855, c. 304 forbidden to all women thereafter married, and by St. 1857, c. 249 to all married women without ex- ception. A deed signed by both husband and wife, but in which the wife's name nowhere occurs except in the signature, and the body of which contains no allusion to her or her right, will not pass her title. Melvin v. Props. Locks & Canals, 16 Pick. 137. Nor a deed which was wholly in the name of the husband un- til the. in testimonium clause, which read " In witness whereof I, the said A. B., and I, S. B., wife of A., in token that I re- linquish all my right in said bargained premises, have here- unto set our hands " &c. Bruce v. Wood, 1 Met. 542. See also Raymond v. Holden, 2 Cush. 264, 270. But the fact that in the in testimonium clause the wife is said to sign ' in token of release of all right of dower in the grant- ed premises' cannot be allowed to control the previous parts of the deed, if these are in the proper form of a joint deed of husband and wife. Bartlett v. Bartlett, 4 Allen 440, 444. -— Perkins v. Richardson, 11 Allen 538. The validity of a deed conveying the real estate of a mar- is 98 DEEDS. ried woman will not be affected by the fact that she received no portion of the consideration paid. Bartlett v. Bartlett, 4 Allen 440, 442. A deed of real estate of a married woman, not her separate property under our statutes, which the husband signed in token of his assent thereto, but not as a grantor, was held to be wholly void, and not even to be reformed or otherwise afford- ing ground for relief in equity. Jewett v. Davis, 10 Allen 68. (This deed was dated 16th July 1857.) Where the husband is under guardianship, provision is made for the wife to execute deeds of her real estate jointly with the guardian. Gen. St. c. 108, s. 12. A husband's interest as tenant by the courtesy in his wife's separate estate is not, during her life, an interest which he can convey by his separate deed, or which will pass to his assignee iij insolvency. Staples w, Brown, 13 Allen . — Lynde v. McGregor, 13 Allen EXECUTION OF DEEDS. I, BY CORPORATIONS. When the grantor in a deed is a corporation, the in testimo- nivm clause and the execution should be substantially as follows : — In witness whereof, the said Corporation has caused its corporate seal to be hereto affixed and these presents to be signed, executed, acknowl- edged and delivered in its name and behalf by C. D. its President, hereunto duly authorized, this first day of &c. Corporation W''^ by C. D., President. EXECUTION BY COBPOEATIONS. 99 A form which varies considerably from the above may how- ever be valid, — thus a deed has been held good as the deed of a corporation which read — " In witness whereof the said Corporation has caused these presents to be signed by C. D., its President, and its corporate seal to be hereto affixed. C. D. President," and a seal. Haven v. Adams, 4 Allen 80. So also a deed in this form — " In witness whereof the said Corpora- tion, by C. D., its Treasurer, has hereto set its name and seal. C. D., Tr. Corporation," and a seal. Hutchins v. Byrnes, 9 Gray 367. But the following form has been held to be bad — "In witness whereof I, the said C. D. in behalf of the said Corporation and as its Treasurer, have hereto set my hand and seal. C. D., Treasurer of Corporation," and a seal. Brinley v. Mann, 2 C^ish. 337. See also Ellis v. Pulsifer, 4 Allen 165, — Abbey v. Chase, 6 Cush. 54. — Sar- gent V. Webster, 13 Met. 497. — Fullam v. West Brookfield, 9 Allen 1. " A corporation as well as an individual person may use and adopt any seal." Mill Dam Foundery v. Hovey, 21 Pick. 417, 428. See also Brinley v. Mann, 2 Cush. 337, 340. The signa- ture of the duly authorized agent of a corporation executing a deed in its behalf being proved, the seal annexed, though mere paper and wafer without any specific stamp or mark, will be presumed to be the seal of the corporation. But if a corporation have adopted a particular seal, it seems that it can- not use any other. Where however a seal of a particular description had been annexed to three deeds of a corporation at different times, that fact, in the absence of any vote adopt- ing or ratifying such seal, was held not to prove it to be the corporate seal to the exclusion of other modes of ensealing in- struments. Stebbins v. Merritt, 10 Cush. 27, 34. See also Damon v. Granby, 2 Pick. 345, 362. The mere impression of the corporate seal upon the paper of the deed without the addition of any wafer &c. will be sufficient, see page 50. 100 DEEDS. As to the authority which an agent should have for exe- cuting a deed in behalf of a corporation, see Hutchins v. Byrnes, 9 Gray 367. As to his authority in cases of simple contracts, see Melledge v. Boston Iron Co., 5 Gush. 158, 175, 178. It will generally be well to subjoin to the deed of a corpo- ration certified copies of the vote, if any, authorizing its exe- cution, and also of such portions of the charter and by-laws as may relate to the matter. II. BY PARTNEKS. A 'deed of real estate owned by partners must be signed and sealed by each and all of them, and a deed executed by one partner only in the name of the firm will convey only the undivided portion of the estate owned by such partner. Dil- lon V. Brown, 11 Gray 179. But a valid transfer ot personal property of a firm, either absolute or by way of mortgage, may be executed by a single partner, and it is immaterial whether he signs the firm name or the name of each partner separately. Patch v. "Wheatland, 8 Allen 102. — Tapley v. Butterfield, 1 Met. 515. And such transfer will be equally valid though a seal be unnecessarily added. Milton v. Mosher, 7 Met. 244. III. BY ATTORNEY. A letter of attorney to execute an instrument requiring a seal must itself be under seal, (see Banorgee v. Hovey, 5 Mass. 11 —Warring v. Williams, 8 Pick. 326. — Burns v. Lynde, 6 Allen 305) and, if for the conveyance of real estate, must be acknowledged and recorded. Gen. St. c. 89, s. 29. [If made by husband and wife for the purpose of authorizing a conveyance of her real estate, and not merely for the release of her dower, it must be acknowledged by both husband and EXECUTION BY ATTOENEY. 101 wife. Gen. St. c. 89, s. 29.] The acknowledgment and re- cording of letters of attorney was not required however prior to the passage of St. 1849, c. 205. See Valentine v. Piper, 22 Pick. 85, 90. But where the name of a grantor is subscribed to a deed by another person in the grantor's presence and at his request, no written authority is required, as otherwise a party " phys- ically incapable of making a mark could never make a convey- ance or execute a deed." Gardner v. Gardner, 5 Gush. 483. In such a case " the act of writing is regarded as the grantor's personal act as much as if he had held the pen and signed and sealed the instrument with his own hand," and it seems that it is not necessary that anything be added to the grantor's name to show that it has been written by the hand of another. Wood V. Goodridge, 6 Gush. 117, 120. Where however a deed has been executed by an attorney without any authority under seal, such deed may be rendered valid by a subsequent ratification by parol. Mclntyre v. Park, 11 Gray 102. See also Copeland v. Mercantile Ins. Go., 6 Pick. 198, 203. A power of attorney given to two must be executed by them jointly. Gopeland v. Mercantile Ins. Go., 6 Pick. 198, 202. Where a sealed instrument is to be executed for a party by his attorney, it should, except in the in testimonium clause, read exactly the same as if it were to be executed by the party himself. This clause and the signature should be sub- stantially as follows : — In witness whereof I, the said A. B. by C. D. my attorney hereto duly authorized, [by letter of attorney, dated &c., and recorded &o.,] have here- unto set my hand and seal this first day of &c. A. B. 5?^^'='=^ (I SEAL. D by C. D. 102 DEEDS. The portion in brackets it is well to insert when this instru- ment is of such a nature as to require the recording of the letter of attorney. Though the above is the proper form, other forms may not be invalid, the material points being apparently that the deed should purport to be the deed of the principal and not of the agent, and that the name of the principal should in some way appear in the signature. Thus a deed purporting to be the deed of A. B. and signed "C. D. for A. B." was held to be well executed as the deed of A. B. Mussey v. Scott, 7 Gush. 215. But a deed beginning "7, C. D.," or "7, C. D. as attor- ney for A. B." or " 7, G. D. by virtue of a power of attorney from A. B.," and signed "C. D." or "C. D. attorney to A. B." will not be good as the deed of A. B. Copeland v. Mercan- tile Ins. Co., 6. Pick. 198. — Elwell v. Shaw, 16 Mass. 42.— Fowler v. Shearer, 7 Mass. 14. See also Kimball v. Tucker, 10 Mass. 192. — Seaver v. Coburn, 10 Cush. 324. A deed of State lands, executed by an agent pursuant to a resolve of the Legislature, seems to form an exception to the general rule as above stated, such a deed having been held to be sufficient though executed by the agent in his own name as agent and under his own seal. "Ward v. Bartholomew, 6 Pick. 409, 414. It seems that, except in cases where one writes the name of another to a deed in his presence and by his direction, an attorney must add his own signature as such to that of his principal, or in some way indicate that the instrument is not executed by the grantor's own hand. Wood v. Goodridge, 6 Cush. 117. But in instruments not under seal the simple signature of the principal's name may be sufficient. Green- field Bank v. Crafts, 4 Allen 447, 454, — Brigham v. Peters, 1 Gray 139, 146, — Merrifield v. Parritt, 11 Cush. 590, 597. The strictness of the rule applicable to sealed instruments EXECUTION BY ATTORNEY. 103 is not however extended to writings not under seal. In these " the particular fomi of executing the contract is not material if it indicate a ministerial act on the part of the agent." Rice V. Gove, 22 Pick. 161. In fact it is held that in cases of writ- ten simple contracts not negotiable, it is competent to show by parol evidence that the party nominally contracting on the face of the paper is actually the agent of another, who can sue and be sued upon the contract as if it were made in his name. Lerned v. Johns, 9 Allen, 419. — Huntington v. Knox, 7 Cush. 371, 374 — Brown v. Parker, 7 Allen 339. — Slawson v. Lo- ring, 4 Allen 342— Haverhill Ins. Co. v. Newhall, 1 Allen 130. — Bank of British N. America v. Hooper, 5 Gray 567, 570. In such cases however it would seem that the agent would be liable on the contract as well as the principal, at least unless at the time of making the contract he disclosed the name of his principal, or it was known to the other contracting party. Huntington v. K50X, 7 Cush. 374 — Winsori;. Griggs, 5 Cush. 210, 212. — Haverhill Ins. Co. v. Newhall, 1 AUen 130. But in cases of negotiable paper the question who is liable on the contract "must be determined by the terms of the paper itself" and not by external evidence as to the fact of agency or the intent of the parties. Draper v. Mass. Steam Heating Co., 5 Allen 338. It " depends exclusively on the fair result of the inspection of the writings themselves — that is whether, on the instruments as they appear, it can be reason- ably inferred that the person executing disclosed his prin- cipal, and that the intent was to bind the principal and not himself." Slawson v. Loring, 5 Allen 342. See also Brown v. Parker, 7 Allen 337. — Bank of British N. America v. Hooper, 5 Gray 567, 571, and cases there cited. To this general rule there is however this, apparent excep- tion, — that where the name of an agent has been adopted by a person or corporation as a substitute for their own name in 104 DEEDS. signing notes or executing other written contracts, the prin- cipal may be liable on such contracts executed under the name of such agent, though on the face of the paper nothing appears to show that the agent did not contract wholly on his own ac- count and without reference to any principal. In such cases the adopted name is held to be in law equivalent to the actual name of the party. Brown v. Parker, 7 Allen 337, 338 — Melledge v. Bost. Iron Co., 5 Cush. 158, 176, 178. In considering the question of the intent of parties to ne- gotiable paper as shown on its face one fact, which has a strong influence in determining the contract to be that of the principal, is the introduction of his name as a part of the sig- nature to the instrument. Morell v. Codding, 4 .Allen 403. Thus in the following cases the contract has been held to be that of the principal. A note 'signed " Pro A. B, — O. D." Long v. Colburn, 11 Mass. 97. A note beginning " I promise" &c., and concluding ^'for the Corporation. 0. D." Emerson v. Providence Hat Manuf. Co., 12 Mass. 237. A note signed " C. D. agent for A. B." Ballou v. Talbot, 16 Mass. 461. A note beginning " We jointly and severally promise " &c., and signed " C. <& D. for A. B." Rice v. Gove, 22 Pick. 158. A note beginning " We promise " &c. and signed " Corporation. C. D. Treasurer." Draper v. Mass. Steam Heating Co., 5 Allen 338. See also Jefts v. York, 4 Cush. 371. But where the only thing tending to show that the party signing acted as agent and not as principal, is the addition to his name in the signature of the words "President," or "Trus- tee" " of the Corporation," such fact will not relieve the party signing from personal responsibility. Piske v. Eld- EXECUTION BY ATTORNEY, 105 ridge, 12 Gray 474, — Haverhill Ins. Co. v. Newhall, 1 Allen 130. It was indeed held in an early case that a note beginning "I, the subscriber, Treaswrer of the Corporation prom- ise " &c. and signed " 0. D. Treasurer of the Corpora- tion" was the note of the Corporation. Mann i7.Mjhandler, 9 Mass. 335 ; but it was said in Draper v. Mass. Steam Heat- ing Co., 5 Allen 339 that this case " is hardly to be reconciled with the current of authorities ; " perhaps however a treasurer, as the officer usually charged with the duty of making the notes of a corporation, may stand in a different position from a president or trustee. (See 12 Gray 476.) See to the same effect in Barlow v. Cong. Soc. in Lee, 8 Allen 460, 461. But though the name of the principal does not form a part of the signature, there may still be some expression in the body of the instrument sufficient to show the intent to make it the contract of the principal. Thus a bill of exchange, stamped in the margin "A. B.," and concluding ^^ which place to account of A. B. C.,D. agent," was held to purport to be the bill of A. B. Puller ■;;. Hooper, 3 Gray 334. See also Tripp v. Swanzey Paper Co. 13 Pick. 291. — Mayhew u Prince, 11 Mass. 54. But the simple fact that a bill contains a direction to charge the amount thereof to the account of a third person will not make it the bill of such third person. Bass v. O'Brien, 12 Gray 477. So where a note began " I, as treasurer of the cor- poration, or my successors in office," and was signed " C. D., Treasurer," it was held to be the note of the corporation. Barlow v. Cong. Soc. in Lee, 8 Allen 460. The opinion of Gray J. in this case contains a careful examination of all the Massachusetts and of many other American and English de- cisions upon this subject. So where a guaranty of a negotiable note was in this form 106 DEEDS. — " By authority from A. B. I hereby guaranty the payment of this note. C. D.," it was held to be the guaranty of A. B. and not of G. D. New England Ins. Co. v. DeWolf, 8 Pick. 56. See also the case of Northampton Bank v. Pepoon, 11 Mas's. 288, where a negotiable note payable to the Berkshire Bank was endorsed in blank by its president in this form " G D. Attorney," and it was held that this endorsement was sufficient, for the reason that C. D. having endorsed in blank, the holder of the note was entitled to write over the signature such words as would give effect to the endorsement. But in the following cases it has been held that the intent to bind a principal did not sufficiently appear. A note beginning — " We, the prudential committee for and in hehalf of the Baptist Church in Lee," and signed "CD." "E. F." and " 0. H." Morell v. Codding, 4 Allen 403. A note beginning — "We the subscribers, trustees for the proprietors of a new meeting-house," and signed "C D." and "E.F." Packard 17. Nye, 2 Met. 47. A note beginning " We the subscribers jointly and severally promise to pay X. Y. or order for the Corporation," and signed "C. D.," " E. F." and "G. H." Bradlee v. Best. Glass Manufactory, 16 Pick. 347. See also Simonds v. Heard, 23 Pick. 120. It may be remarked in this connection that one who exe- cutes a note in terms as agent for a third person and in his name, but who in fact had no authority to act as such agent, cannot be held personally liable as promisor. Jefts v. York, 4 Cush. 371. But he may be liable in an action of tort for falsely representing himself as duly authorized as such agent. Jones V. Wolcott, 2 Allen 247. It has been held however that, when one executed a note in this form " I, C. D. as guardian of A. B. promise " &c., and DELIVEEY. 107 signed " 0. D., Guardian," inasmuch as he could not by such note bind the person or estate of his ward, he bound himself personally. Porster v. Fuller, 6 Mass. 58. DELIVERY OP DEEDS. What Constitutes. — "A deed may be delivered to a party by words without any act of delivery, as if the writing sealed lieth on the table and the feoffor or obligor saith to the feoffee or obligee, go and take up the writing, it is sufficient for you ; or it will serve the turn ; or take it as my deed ; or the like words, it is a sufficient delivery. If however a party throws a writing on the table and says nothing, and the other party takes it up, this does not amount to a delivery, unless it be found to be put there with the intent to be delivered to the party or to be taken up by him." Per Wilde J. in Mills v. Gore, 20 Pick. 28, 36. Delivery to an agent of the grantee is a good delivery to the grantee. Western R. R. v. Babcock, 6 Met. 346, 356. The delivery of a deed by the grantor to a Register of Deeds for record will not of itself amount to a delivery to the grantee. Maynard v. Maynard, 10 Mass. 456. — Parker v. Hill,'8 Met. 447, 450. — Merriam v. Leonard, 6 Cush. 151. — Powers V. Russell, 13 Pick. 69, 77. But qusere whether the grantor would, as against creditors of the grantee, be allowed in such a case to deny the delivery. See Maynard v. May- nard, 10 Mass. 458. Such delivery to the Register however, if made in accord- ance with a prior request of the grantee that it should be so delivered, has been held to be a good delivery to the grantee. Shaw V. Hayward, 7 Cush. 170. — See also Thayer v. Stark, 6 Cush. 11, 14. 108 DEEDS. So of a delivery to a Register for the use of the grantee, followed by a subsequent assent of the grantee to the same, (Hedge v. Drew, 12 Pick. 141, 144,) even though such assent be not given until after the deed has been lost or stolen from the Register's office. Thayer v. Stark, 6 Cush. 11. But such subsequent assent has been held to be necessary to complete the delivery as against an attaching creditor of the grantor, even though the deed had been made in pursuance of a prior agreement between the -parties. Samson v. Thornton, 3 Met. 275, 281. See further on this point remarks of Shaw C. J. in Powers V. Russell, 13 Pick. 69, 77. Where a deed was written by an attorney at the request of both grantor and grantee, and the grantor had signed it, and both parties had looked at it and expressed themselves satis- fied with the form of it, and the grantor had taken the deed for the purpose of obtaining the signature of his wife to her release of dower, having received of the grantee a note which was part of the consideration, it was held that there had been no delivery of the deed. Parker v. Parker, 1 Gray 409. Where the grantee on receiving a deed gave a writing ac- knowledging that he had received it and promising to return it to the grantor on demand or to pay him the consideration, and no demand for a return of the deed had been made, it was held that the deed had been duly delivered and that the title had vested in the grantee. Howe v. Dewing, 2 Gray 476. As to the fe,cts sufBcient to constitute a delivery, see also , Chandler v. Temple, 4 Cush. 285. — Ward v. Winslow, 4 Pick. 518. —Mills V. Gore, 20 Pick. 28. Time of. It is no objection to the validity of a deed that it was not delivered until after it was recorded. Parker v. Hill, 8 Met. 447. — Harrison v. Trustees of Phillips Academy, DELIVERY. 109 12 Mass. 455, 461. — Hedge v. Drew, 12 Pick. 141. In the two cases last cited deeds recorded before tliey were delivered were, after their delivery and without any new recording, held to be valid as against attaching creditors of the grantor. Evidence is admissible to show that a deed was in fact de- livered at a time subsequent to its date. Fairbanks v. Met- calf, 8 Mass. 230, 240. Peesumption op. The possession by the grantee of a deed duly executed affords primd facie but not conclusive evidence that the deed has been delivered. Chandler v. Temple, 4 Cush. 285, 287. — Ward v. Lewis, 4 Pick. 618, 520. —Adams V. Prye, 3 Met. 103, 109. And where one executed and ac- knowledged a deed to an infant of whom he was the guardian, the attestation stating the deed to have been " executed and delivered " in the presence of the witness, it was held that, although the grantor had retained possession of the deed, a delivery was to be presumed, inasmuch as such possession was in accordance with the nature of the grantor's duty as guar- dian. Moore v. Hazleton, 9 Allen 102, 106. But where a deed, duly executed and recorded, was found in the possession of the grantor, and it was proved that at the time of attestation neither the grantee nor any one acting in his behalf was present, it was held that any presumption that a delivery had been made was rebutted. Powers v. Russell, 13 Pick. 69, 75. » Conditional ob qualified delivery. Where a deed has been delivered to the grantee, parol evidence is inadmissible to show that the delivery was conditional or qualified, or any thing else than absolute, and such that the deed should take full effect immediately. Ward v. Lewis, 4 Pick. .518, 520. — Fair- banks V. Metcalf, 8 Mass. 230, 238. 110 DEEDS. " Whether when a deed is executed, and not immediately deh'vered to the grantee, but handed to a stranger to be de- livered to the grantee at some future time, it is to be consid- ered as the deed of the grantor presently, or as an escrow, is often a matter of some doubt, and it will generally depend rather on the words used and the purposes expressed than upon the name which the parties give to the instrument. When the future delivery is to depend upon the payment of money or the performance of some other condition, it will be deemed an escrow. When it is merely to await the lapse of time or the happening of some contingency, and not the per- formance of any condition, it will be deemed the grantor's deed presently. Still it will not take effect as a deed until the second delivery, but when thus delivered it will take ef- fect by relation from the first delivery. But this distinction is not now very material, because when the deed is delivered as an escrow, and afterwards and before the second delivery the grantor becomes incapable of making a deed, the deed shall be considered as taking effect from the first delivery in order to accomplish the intent of the grantor, which would otherwise be defeated by the intervening incapacity." Per Shaw C. J. in Poster v. Mansfield, 3 Met. 412, 415. See also to the same effect in 4 Kent Com. 454. An escrow is " a mere writing as distinguished from a perfect deed." Burrill Law Diet. "Escrow." In accordance with the above principles it was held in the above-cited cjise of Foster v. Mansfield that, where one exe- cuted and acknowledged a deed and delivered it to a third person with a request that he would deliver it to the grantee after the grantor's death, upon such delivery the deed took effect by relation as of the time of the first delivery, and di- vested the estate of the grantor as from that time. See also similar decisions in Hatch v. Hatch, 9 Mass. 307, — Wheel- ACKNOWLEDGMENT AND KECOEDING. Ill Wright V. Wheelwright, 2 Mass. 447, and O'Kelly v. O'Kelly, 8 Met. 436. But see Rand's notes to the two cases of Hatch V. Hatch and Wheelwright v. Wheelwright, in which he doubts the validity of such deeds as being in fact testamen- tary in their character. The decision in the last named case contains a learned discussion of this subject by Chief Justice Parsons. When a deed is delivered to a third person as an escrow, or to be delivered to the grantee upon a certain condition or in a certain event, and the condition is not performed or the event does not happen, the title to the property does not pass, and the deed is wholly without effect. Fairbanks v. Metcalf, 8 Mass. 230. — Maynard v. Maynard, 10 Mass. 456. So also, it seems, when the third party to whom the deed is entrusted, fails to deliver it as directed. See O'Kelly v. O'Kelly, 8 Met. 436. ACKNOWLEDGMENT AND RECORDING OP DEEDS. For a general statement of the history and theory of the law relative to the acknowledgment of deeds, see the decision of Parsons, C. J., in Pidge v. Tyler, 4 Mass. 541. Importance of. — The statutes provide that — " no bargain and sale or other like conveyance of an estate in fee simple, fee tail, or for life," " no lease for more than seven years from the making thereof," and no " letter of attorney for the con- veyance of real estate," " shall be valid and effectual against any person other than the grantor and his heirs and devisees and persons having actual notice thereof, unless it is made by a deed recorded " " in the registry of deeds for the county or district where the lands lie " Gen. St. c: 89, ss. 1, 3, 29. It is 112 DEEDS. further provided (Gen. St. c. 89, s. 28) that no deed shall be recorded without a certificate of acknowledgment or of proof under Gen. St. c. 89, ss. 20-27. And it has been held accord- ingly that if a deed be recorded without having been properly acknowledged or proved, such registration will be a mere nullity. Pidge v. Tyler, 4 Mass. 541. — Blood v. Blood, 23 Pick. 80.— See also 12 Met. 163 — 22 Pick. 91. Where however a deed had been recorded before it was delivered to the grantee, such record was, after the delivery, held to be valid and sufficient as against attaching creditors of the grant- or. Hedge v. Drew, 12 Pick. 141, 144. — Harrison v. Trustees of Phillips Academy, 12 Mass. 455, 461. But though a deed be neither acknowledged nor recorded, it will still be effectual to pass the title as against the grantor, his heirs and devisees, and persons having actual notice of it. Dole V. Thurlow, 12 Met. 157, 162. — Marshall v. Fisk, 6 Mass. 24. — Call V. Buttrick, 4 Gush. 345, 350.— Gilson v. Gilson, 2 Allen 115, 117. There seem however to be some conveyances which do not require to be either acknowledged or recorded to give them full validity. For instance, the conveyance of an insolvent's estate to his assignee in insolvency under Gen. St. c. 118, s. 42. Hall V. Whiston, 5 Allen 126. So also possibly a conveyance by an executor or administrator under Gen. St. c. 102, s. 10. See Pond v. Wetherbee, 4 Pick. 312. And if this be true of such conveyances, it would seem to be equally so of convey- ances by guardians and others who are authorized to sell real estate in like manner as executors and administrators. See ' Gen. St. c. 102, ss. 20, 24, 31, 33. In some cases the statute re- quires a deed to be recorded within a limited time : the deed of a tax collector conveying land sold for non-payment of taxes will not be valid unless recorded within thirty days of the day of sale. Gen. St. c. 12, s. 35. [First required by St. ACKNOWLEDGMENT AND RECORDING. 113 1848, c. 166, s. 5. As to necessity of recording prior to this statute, see Tilson v. Thompson, 10 Pick. 359.] By whom the acknowledgsment is to be made. The statute requires the acknowledgment of deeds to be "by the grantors, or one of them, or by the attorney executing the same." Gen. St. c. 89, s. 18. An acknowledgment by one of two or more grantors is equally good, whether the grantors are seized as tenants in common of the whole estate conveyed, or are separately seized of. distinct parts. Shaw v. Poor, 6 Pick. 58. So also it is sufficient if the grantor acknowledging the deed has merely a contingent life interest in the estate con- veyed : — thus where husband and wife, after issue born, joined in a deed of an estate held by the wife to her separate use under St. 1845, c. 208, an acknowledgment by the husband alone was held to be good. Palmer v. Paine, 9 Gray 56. Compare Perkins v. Richardson, 11 Allen 638. See also 9Mass. 218, — 4Mass. 547. To the general rule that an acknowledgment by one grantor is sufficient, there is however this exception, — that letters of attorney made by husband and wife for the purpose of author- izing conveyances of her real estate, — and not merely for the release of dower by the wife, — must be acknowledged by both husband and wife. Gen. St. c. 89, s. 29. Quaere whether this does not render necessary such a double ac- knowledgment of a power of sale mortgage of the real estate of a married woman. Bbpoee whom. The acknowledgment may be made before any notary public (St. 1867, c. 250, s. 1) or justice of the peace in this State ; (and such justice may act in his own or any other county, St. 1863, c. 157, s. 1, and might legally have 15 114 DEEDS. done so even prior to this Statute. Learnard v. Riley, 14 Allen ) or before any justice of the peace, magistrate, (for meaning of word " magistrate " in this place, see Scanlan v. Wright, 13 Pick. 523, 528, — Palmer v. Stevens, 11 Gush. 147) or notary public, or commissioner appointed for that purpose by the Governor of this Commonwealth, within the United States or in any foreign country ; or before a minister or consul of the TJ. S. in any foreign country. Gen. St. c. 89, s. 19. It would seem that, prior to May 18th, 1867, acknowledg- ments of deeds before notaries public in this State were npt valid, unless an ex post facto validity has been given them by St. 1867, c. 250, s. 2, which provides that all such acknowledg- ments made prior to the passage of that statute " shall be deemed and taken to be legal and valid." If a person be in the regular or volunteer land service of the U. S. and without the State, his acknowledgment may be made before any officer in such service above the rank of lieutenant. St. 1863, c. 41, s. 2, 8. — St. 1864, c. 262. If a person be in the naval service of the U. S. and without the State, his acknowledgment may be made before " the pay- master, assistant paymaster, acting assistant paymaster, sur- geon, or officer in command of the vessel in which such person shall at the time serve or with which he may be connected." St. 1863, c. 41, s. 2, 3. Form of. certificate. The certificate of acknowledgment must be " under the hand of the officer taking the same " and " indorsed upon the deed or annexed thereto." Gen. St. c 89, s. 28. When the acknowledgment, is taken before a notary public, his certificate need not be authenticated by his notarial seal. Farnum v. Buffum, 4 Cush. 260. ACKNOWLEDGMENT AND EECOEDING. 115 A person executing and acknowledging a deed in behalf of a corporation should acknowledge the deed as that of the corporation. Brinley v. Mann, 2 Cush. 337, 340. So it would seem that whenever a deed is executed by an agent, he should acknowledge it as the deed of his principal. No stamp is required upon a certificate of the acknowledg- ment of a deed. Inter. Rev. Law, s. 160. 1. — CERTIFICATE OF ACKNOWLEDGMENT BY ONE GRANTOR. COMMONWEALTH OF MASSACHUSETTS. Suffolk ss. Boston, 1st January 1867. Then personally appeared the above named A. B. and acknowledged the foregoing instrument to be his free act and deed, before me X. Y. Justice of the Peace. 2. — BY TWO OR MORE GRANTORS. * * * Then personally appeared the above-named A. B., C. D., and E. P. and severally acknowledged the foregoing instrument to be their free act and deed, before &c. 3.— WHERE DEED IS EXECUTED BY ATTORNEY. » * * « Then personally appeared the above-named C. D. [name of attorney] and acknowledged the foregoing instrument to be the free act and deed of the said A. B., [name of principal] before &c. 4. _ WHERE A CORPORATION IS GRANTOR. * » » « Then personally appeared the above-named C. D. and ac- knowledged the foregoing instrument to be the free act and deed of the Corporation, before me &c. LEASES. A LEASE is usually made in two parts, each of which ig signed by both lessor and lessee, but if it be made by deed poll and signed only by the lessor, the law, from the accept- ance of such deed by the lessee, will imply a promise and obligation on his part to pay the rent reserved and to do such other things as the deed shows that it was intended he should perform. Pike v. Brown, *J Cush. 134, 135. — Goodwin v. Gilbert, 9 Mass. 510, It seems that where a lessor has failed to execute a lease which has been executed by the lessee, who has entered and enjoyed his term, he may maintain an action against such lessee on his covenant to pay rent. Codman v. Hall, 9 Allen 335, 338. FOKM OF COMMON LEASE. This Indekture made this fifteenth day of December A. D. 1868 be- tween A. B., of Boston, Massachusetts, of the first part, and C. D., of said Boston, of the second part, witnesseth : That the said A. B. doth hereby demise and lease unto the said C. D. the store and premises numbered one hundred on Washington Street in said Boston, and being the same lately occupied by M. N. To have and to hold the same for the term of five years from and includ- ing the first day of January next '[or, the day of the date hereof]. Yielding and paying therefor rent at the rate of one thousand dollars per annum, to be paid in equal quarterly payments, the first of such payments, to be made on the first day of April next, and in like proportion for any fraction of a quarter in case this lease shall be determined between two rent days. FOEM OF LEASE. 117 And the lessor hereby covenants with the lessee and his executors, admin- istrators and assigns that he and they shall peaceably hold and enjoy the said premises as aforesaid. And the lessee hereby covenants with the lessor and his heirs and assigns that he will pay the said rent in manner aforesaid, and also all taxes, water rates, and assessments whatsoever, whether now existing or hereaifter created, that may be payable for or in respect of said premises or any part thereof daring said term, excepting however assessments for any permanent benefit or improvement to said premises under any betterment law or otherwise ; that he will not, without the consent in writing of the lessor, his heirs or assigns, being first obtained, assign this lease, nor underlet the whole or any part of said premises, nor make or suffer any alterations or additions in or to the same ; — that he will not make or suffer any waste or any unlawful, improper or offensive use of the said premises ; — • that he will allow the lessor and his heirs and assigns and their agents at seasonable times to enter upon the said premises and examine the condition thei'eof and make necessary repairs, — will keep all and singular the said premises in such repair as the same are in at the commencement of said term or may afterwards be put in by the lessor or his heirs or assigns, reasonable use and wearing thereof and damage by accidental fire or other unavoidable casualty only excepted, and at- the end of said term will peaceably deliver them up to the lessor or his heirs or as- signs in such repair as aforesaid, together with all future erections or addi- tions upon or to the same. Provided always and these presents are upon this condition, that in case of a breach of an3' of the covenants to be observed on the part of the lessee, the lessor or his heirs, devisees, or assigns may, while the default or neglect con- tinues, and without any notice or demand, enter upon the premises, or on any part thereof in the name of the whole, and thereby determine the estate hereby created ; and may thereupon expel and remove, forcibly if necessary, the lessee and those claiming under him and their effects. And provided also that in case the buildings on the said premises or any part thereof shall be destroyed or damaged by accidental fire or other un- avoidable casualty so that the same shall be thereby rendered unfit for use and occupation, then and in such case the rent hereinbefore reserved, or a just and proportionate part thereof according to the nature and extent of the injury sustained, shall be abated until the said premises shall have been duly repaired and restored by the lessor or his heirs or assigns, or, in case the said buildings shall be substantially destroyed, then at the election of the lessor 118 LEASES. or his heirs or assigns the estate hereby created shall thereupon be de- termined. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. NOTES. "Demise and lease." It seems that these words imply a covenant of title by the lessor, that is, a covenant for quiet enjoyment against him and all that come in under him and against all others claiming by title paramount during the term. See Poster ■;;. Peyser, 9 Gush. 242, 246. See also Dexter ■;;. Manley, 4 Gush. 14. " Peom and including."' If it be the intention of the par- ties to include in the term the day named, the word " includ- ing" should always be used, for if a lease be made to hold " from " a day named, " from the date," or " from the day of the date," such day is excluded'from the term. Thus a lease " for three years from the first day of July " begins on the second day of July. Atkins v. Sleeper, 7 Allen 487. — 4 Kent Gom. 95, note. " Yielding and paying therefor rent " &o. It is not ne- . cessary to state to whom the rent is to be paid. " If rent be reserved generally without saying to whom, the law will make the distribution." " The most clear and sure way to secure rent is to reserve rent during the term and leave the law to make the distribution." Per Wilde, J. in Jaques v. Gould, 4 Gush. 384, 387. "And in like proportion for ant fraction of a quak- ter " &c. This clause is inserted by reason of the rule of law that, if a lease determines in accordance with its own REDDENDUM CLAUSE. 119 provisions before the day on which the rent is made payable, the tenant is not liable for any portioQ of the rent which by the terms of the lease is payable on that day, nor is he liable even for use and occupation for any time subsequent to the next preceding rent day. Nicholson v. Munigle, 6 Allen 215. Earle v. Kingsbury, 3 Cush. 206. The same rule holds where the tenant is evicted by his landlord from the whole or from a portion of the demised premises between two rent days. Leishman v. White, 1 Allen 489. But an interruption of the tenant by his landlord is not necessarily an eviction, and noth- ing less than an eviction will suspend the rent in whole or in part. Fuller vl Ruby, 10 Gray 285. As to effect of provision in a written lease that the rent shall be payable in advance, see Bartlett v. Greenleaf, 11 Gray 98. Compare also Elliott v. Stone, 1 Gray 571. To the reddendum clause are sometimes added also words to this effect — " and at that rate for such further time as the said lessee may hold the premises." And in a case where the above provision was inserted, together with a covenant , that the lessee would " during the term, and for such further time as he should hold the premises, pay the said quarterly rent upon the day appointed for the payment thereof," and a further covenant to yield up the premises at the end of the term, it was held that the lessee was bound to pay pro rata for the time of actual occupation only, and not, like a tenant at will, for a full quarter if he held over' for a few days only. Edwards v. Hale, 9 Allen 462. But it would seem advisable, as the law stands at present, to drop all such provisions as the above. Before the passage of the General Statutes a tenant at sufferance was not liable to pay any rent, (Flood v. Flood, 1 Allen 217 — 4 Kent Com. 117) and, in the absence of such provisions in the lease, a landlord had no remedy for the rent against a lessee who held 120 LEASES. over beyond his term, though he might recover damages in an action of tort for the unlawful detention of the premises, (Sargent v. Smith, 12 Gray 426) but now by Gen. St. c. 90, s. 25 tenants at sufferance are made liable to pay rent for such time as they may occupy or detain the premises, and it would seem preferable not to insert a special provision which would hmit the amount of rent which the landlord might recover, while, if the case were left to the operation of the statute, he would apparently be able to recover the actual value of the premises for the time of detention, though such value might greatly exceed the rent named in the lease. And it may be remarked that it is particularly in cases where the rental value of an estate has risen, that landlords are troubled by their tenants holding over after the expiration of their terms. See however the remarks of Chapman J. in the above case of Ed- wards v. Hale at p. 465. As to the effect of the use in a lease of words similar to those above cited, see further Jaques v. Gould, 4 Gush. 384 — Salisbury v. Hale, 12 Pick. 416. This last-named case pre- sents an instance in which the insertion of such a clause was of avail to the lessor, for, the performance of the covenants in the lease having been guaranteed by a third party, such guar- antor's liability was held to extend to the payment of rent, taxes &c. for a time subsequent to the expiration of the les- see's term. The Covenants. As a generd.1 rule the covenants of the lessee run with the land. Thus the covenant not to use for an unlawful purpose " is binding upon the estate in the hands of sub-tenants. They take only the title of the lessee and with the like limitations and restrictions." Wheeler v. Barle, 5 Cush. 31, 35. So an action for the rent, which the lessee covenants to pay, may be maintained by the lessor or his as- THE COVENANTS. 121 signee against the lessee or his assignee, (Rowland v. CoflSn, 12 Pick. 125. S. C. 9 Pick. 51. — Patten v. Deshon, 1 Gray 325. — Torrey v. Wallis, 3 Cush. 442, 446. — Daniels v. Rich- ardson, 22 Pick. 565.) but not against a sub-lessee, (Campbell V. Stetson, 2 Met. 504) who is not, so long as the original lease remains in force, liable to the original lessor even for use and occupation. Shattuck v. Lovejoy, 8 Gray 204. [At common law the assignee of the lessee was not liable to the action of the lessor for the rent until after' attornment, but this rule was changed by the English statute of 4 Anne c. 16, s. 9, and at-, tornment is now held to be of no importance in this respect. Burden v. Thayer, 3 Met. 76, 78. — Parley v. Thompson, 15 Mass. 18, 25. The action by or against the assignee is how- ever local, being founded on privity of estate and not on pri- vity of contract, and must be brought in the county where the land lies. See Clark v. Scudder, 6 Gray 122. — Lienowv. Ellis, 6 Mass. 331. — Also Patten v. Deshon, 1 Gray 325, 326.] But in one respect the benefit of the covenant to pay rent ap- pears not to run strictly with the land, for a party to whom the lessor has assigned the rent alone, without the reversion, may maintain an action for such rent in his own name against the lessee or his assignee. Hunt v. Thompson, 2 Allen 341 — Kendall v. Carland, 5 Cush. 74. See also Patten v. Deshon, 1 Gray 325, 326, —Allen v. Bryan, 5 Barn. & Cress. 512. But see, contra, 1 Smith's Lead. Cas. H. & W. Notes, 5th ed. p. 162. But, as to the covenant by the lessee to deliver up the premises at the end of the term, it seems to be an open ques- tion whether it will run with the land so that an action can be maintained upon it against an assignee of the lessee. Sar- gent V. Smith, 12 Gray 426. A waiver of one breach of a covenant in a lease is no answer 16 122 LEASES. to an action for another and distinct breach of the same cove- nant. Seaver v. Coburn, 10 Cush. 324. A lessee will not be excused from the performance of his covenant, as to pay rent, by the failure of the lessor to per- form a covenant on his part, as to make repairs. Leavitt v. Fletcher, 10 Allen 119, 121. But if the lessor evict his les- see from the whole or from a portion of the leased premises, they being let at an entire rent, the lessee will no longer be liable to pay any rent under his covenant, unless a special pro- vision to meet the case is inserted in the lease. See page 118, where the cases on this point are cited. Implied covenants. In a lease of a warehouse, not de- scribed as let for any particular purpose, no covenant is im- plied that the building is safe, well built, or fit for any partic- ular use. Button v. G-errish, 9 Cush. 89. And in the lease of a house, though described as " a dwelling-house " and " to be used as a private dwelling-house only and not as a boarding house," there is no implied covenant that it is reasonably fit for habitation. Foster v. Peyser, 9 Cush. 242. See also Welles V. Castles, 3 Gray 323, 326. But see Dexter v. Man- ley, 4 Cush. 14, 25, — also 9 Cush. 94. Whether the lessee would be restricted in his use of the premises by such a recital, see Shumway v. Collins, 6 Gray 227, 231. There is an implied covenant on the part of the lessor that, so far as he is concerned, he will do no act to interrupt the free and peaceable enjoyment of the premises by the lessee. Dexter v. Manley, 4 Cush. 14, 24. It seems that there is also an implied covenant of title. See Foster v. Peyser, 9 Cush. 242, 246, where the Court quotes and endorses as " perfectly satisfactory" the following passage from an opinion of Mr. Baron Parke. " It is clear that from the word ' demise ' in a lease under seal the law implies a covenant, — in a lease not COVENANT FOR QTJIET ENJOYMENT. 123 under seal, a contract, — for title to the estate merely ; that is, for quiet enjoyment against the lessor and all that come in under him by title and against all others claiming by title paramount during the term ; and the word ' let,' or any equiv- alent words which constitute a lease, have no doubt the same effect and no more. There is no authority for saying that these words imply a contract for any particular state of the property at the time of the demise ; and there are many which clearly show that there is no implied contract that the prop- erty shall continue fit for the purpose for which it is demised." See also Taylor's Land. & Ten. sect. 304. " No covenant is implied that the lessor shall keep the premises in repair or otherwise fit for occupation." Gray J. in Leavitt v. Fletcher^ 10 Allen 119, 121. Express covenants, — oplessoe. "Shall peaceably hold AND enjoy " &c. It would Seem that this covenant is super- fluous, inasmuch as, if it were omitted, the law would imply a covenant to the same effect. See above under " implied covenants." The benefit of this covenant runs with the land, and an ac- tion for a breach may be brought against the lessor by an assignee of the lessee. Shelton v. Codman, 3 Giish. 318. Under this covenant the lessor is liable only for evictions, entries, and disturbances made by virtue of rights existing at the time when the covenant is made, but not of rights after- wards acquired. Thus he is not responsible for an ejection by the City authorities in widening the street on which the leased premises are situated. Ellis v. Welch, 6 Mass. 246. As to the rights of the parties in such case see Patterson v. Boston, 20 Pick. 159 — Parks v. Boston, 15 Pick. 198. As to the measure of damages for breach of this covenant see Hovey v. Newton, 11 Pick. 421 — Donahoe v. Emery, 9 Met. 63. 124 LEASES. Express covenants, — op lessee. " Pat the said rent " &c. Though this covenant be omitted, the lessor may still re- cover his rent, but in that case, if the lessee assigns his interest and the lessor assents thereto and receives rent of the as- signee, he can no longer look to the lessee for the rent, but only to the assignee. Where however there is. an express covenant to pay the rent, the fact of such assignment and as- sent will not affect the liability of the lessee on his covenant. Wall V. Hinds, 4 Gray 256 — Fletcher v. M'Farlane, 12 Mass. 43, 46. — Dwight v. Mudge, 12 Gray 23. — Way v. Reed, 6 Allen 364, 369. As to the effect of an eviction by the lessor to discharge the lessee from this covenant, see above, page 122. "All taxes" &c. &c. "excepting however assessments foe ant permanent benefit " &c. Under a covenant " to pay all taxes or duties levied or to be levied" on the leased premises, it has been held that a lessee was not bound to repay to his lessor the expense of paving a sidewalk in front of the prem- ises, which expense the town had recovered of the lessor under the provisions of a statute. Twycross v. Fitchburg R. E. Co. 10 Gray 293. See also Torrey v. Wallis, 3 Cush. 442, 447. Where' however, as in the leases now generally used, the lessee covenants to pay "all taxes, water rates, and assess- ments whatsoever that may be payable for or in respect of the premises during the term," it would seem that the lessee would be bound to pay an assessment for laying a sidewalk or drain and, in the City of Boston, even an assessment under the betterment law. (St. 1866, c. 174.) With a view to ex- empt the lessee from such liability, which it is evident he would never intentionally assume, the covenant has been framed in the language given above. When the lease is of a portion of an estate, of the differ- COVENANTS OP LESSEE. 125 ent parts of which there has been no separate assessment by the assessors of taxes, the covenant to pay taxes is to be con- strued as an agreement by the lessee to pay such proportion of the entire tax assessed on the whole estate, as the portion thereof demised to him bears in taxable value to the entire premises. Wall v. Hinds, 4 Gray 256, 269. But it has been held that a usage in the City of Boston might be shown, whereby the whole tax on the building was to be apportioned to the tenants of different portions accord- ing to their respective rents, and that the covenant to pay taxes should be construed accordingly. Codman v. Hall, 9 Allen 335. It is provided by Statute (Gen. St. c. 11, s. 8,) that taxes on real estate may be assessed either to the owner or to the terir ant, but is further provided (Gen. St. c. 11, s. 9,) that, when the tax has been assessed to the tenant, he may, unless there is an agreement to the contrary, retain out of his rent the taxes paid by him, or may recover the same in an action against his landlord. " Which mat be payable " &c. It is held that under this language the lessee is bound to pay taxes assessed upon the premises during the term but not payable till afterwards, and is not bound to pay those becoming payable within the term but assessed before its commencement. Wilkinson v. Libbey, 1 Allen 375. If the language used in the form given above had not received a judicial interpretation, it might be better to use the phrase " which may be assessed or laid upon said premises or any part thereof," and perhaps this latter form is on the whole preferable, inasmuch as the other naturally tends to mislead any person not acquainted with the decision above cited. 126 LEASES. "Will not assign this lease nor underlet." Unless restrained by covenant, a lessee may both assign and underlet. 4 Kent Com. '96. An assignment is a transfer of the lessee's interest in the whole or a part of the premises for the whole residue of the term; — a sublease is a transfer of such interest for any time less than the whole of such residue. 1 G-ray 330. 4 Kent Com. 96. A breach of this covenant will not of itself determine the lease and revest the estate in the lessor. Shattuck V. Lovejoy, 8 Gray 204. " Ant alterations or additions." This covenant does not, it seems, prevent the lessee from making repairs without the consent of the lessor. City of Boston v. Worthington, 10 Gray 496. See also as to effect of this covenant, Atkins v. Chilson, 9 Met. 52. " Ant waste." See Wall v. Hinds, 4 Gray 256, 270; " Allow the lessor &c. to enter &c. and make necessary REPAIRS &c." This covenant may sometimes be important to a lessor when the lease covers a portion only of a building. In such case a right to make repairs in the part demised may be necessary to the safety of the rest of the building. " Will keep said premises in such repair " &c. In the ab- sence of any express Covenant relative to repairSj the land- lord is wholly free from any liability to repair, while the ten- ant " is bound to make ordinary tenantable repairs, such as to keep the house wind and water tight, and to repair windows and doors broken by him, but not to make lasting repairs." 4 Kent Com. 110. — 1 Parsons on Cont. 424.-7 Gray 553.— 10 Allen 121. As to the general purport of this covenant, see Jaques v. Gould, 4 Cush. 384. THE CONDITION. 127 It seems that it is a sufficient compliance with this cove- nant if any want of repair, which may exist, be removed dur- ing the term. Atkins v. Chilson, 9 Met. 52, 63. Unless the exception of fire and other casualties be made under this covenant, the lessee will be bound to repair or re- build, even if the buildings on the premises should be wholly destroyed through such causes. Phillips v. Stevens, 16 Mass. 238. — Adams v. Nichols, 19 Pick. 275. — Tilden v. Tilden, 13 Gray 103, 109. — Leavitt v. Fletcher, 10 Allen 119, 121. As to what constitutes an " unavoidable casualty " see page 129. " Provided always " &c. This clause constitutes a condi- tion and not a conditional limitation, and the estate of the lessee does not determine upon the mere happening of the contin- gency named, but can only be defeated by the entry of the lessor or his heirs. Fifty Associates v. Howland, 11 Met. 99. — Shattuck V. Lovejoj'-, 8 Gray 204. In some cases where a forfeiture is incurred under this con- dition by accident or mistake, the Court will refuse to enforce it. Atkins v. Chilson, 11 Met. 112. This condition is equally effectual to work a forfeiture when the covenant which is broken is only a negative stipulation, as that the lessee will not suffer the premises to be used for un- lawful purposes. Wheeler v. Earle, 5 Cush. 31, 35. In case of a " neglect or refusal to pay the rent due accord- ing to the terms of any written lease " an additional remedy is given by Gen. St. c. 90, s. 30 which provides that " four- teen days' notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease." "The lessor or his heirs, devisees, or assigns may enter " &c. The old rule of law is that the right to enter for breach of condition can only be reserved to the grantor and his heirs, 128 LEASES. but not to his devisees or assigns; (see 4 Ketit Com. 122, 123. ■ — Stearns on Real Actions p. 21. — also above p. 27,) and as in the above-cited case of Fifty Associates v. Rowland it was held that this clause constitutes a condition and not a condi- tional limitation, it would seem questionable whether a devi- see or assignee of the lessor could enforce the forfeiture of a lease under this clause. Whether the mention of the " devi- sees or assigns " of the lessor can convert what would other- wise be a condition into a conditional limitation, quaere. See Brattle Square Church v. Grant, 3 Gray 142. But it would seem that if the clause were to be considered as a conditional limitation, it would not, by reason of the rule against perpetu- ities, be valid in a lease for a definite term of more than twenty-one years. See same case. " Without ant notice ob demand " &c. See Fifty Associ- ates V. Howland, 5 Cush. 214, 217. If, although no notice be required, one be given which specifies a particular breach as the cause of entry, the validity of the entry will depend upon the proof of that breach, and all other breaches will be held to have been waived. Atkins v. Chilson, 9 Met. 52. Unless expressly waived in the lease, it would seem that a demand of the rent on the day it falls due is strictly required where a lease is to be forfeited for breach of condition in the non-pay- ment of rent. See dictum of Shaw, C. J. in Kimball v. Row- land, 6 Gray 224, 225. "FoECiBLT IF NECESSARY." Theso words do not author- ize such a degree of force as would tend to a breach of the peace, but such only aa would sustain a plea of justification of molliter manv^ imposuit. Fifty Associates v. Howland, 5 Cush. 214, 218. But as to degree of force see further under "Notice. to Quit." FIEE CLAUSE. 129 " Provided also " &c. If this proviso be not inserted in a lease, the lessee will be bound to pay the rent to the end of the term, although the buildings on the premises should be wholly destroyed by fire or other casualty, and the lessor should refuse to rebuild. Fowler v. Bott, 6 Mass. 63. — Wall V. Hinds, 4 Gray 256, 268. See also Leavitt v. Fletcher, 10 Allen 119, 121. But if the lease be of a room in a building and such room be wholly destroyed, the lease and all rights under it thereupon terminate. Stockwell v. Hunter, 11 Met. 448. "Oe other unavoidable casualty." "This phrase does not signify a mere want of repair arising from lapse of time or improper use of the premises ; nor from trespasses or nui- sances occasioned by the acts of the tenant or of third per- sons. Neither does it include any injuries which may happen by reason of the common and ordinary use and occupation of the estate leased or of the adjoining premises. The term has a much more restricted meaning and comprehends only dam- age or destruction arising from supervening and uncontrol- lable force or accident. By a strict definition, as applied to the subject matter, it signifies events or accidents which hu- man prudence, foresight and sagacity cannot prevent. Look- ing at the connection in which they stand and applying to them the maxim of construction, noscitur a sodis, they clearly signify occurrences of an unusual and extraordinary character, that is from causes like fire, such as lightning, earthquakes and wind, which usually result without any direct agency of the tenant and which are ordinarily beyond human control." Bigelow J. in Welles v. Castles, 3 Gray 323, 325. See also on this point Bigelow v. Collamore, 5 Cush. 226. — Kramer v. Cook, 7 Gray 550. 17 130 LEASES. " Rendeebd unfit for USB AND OCCUPATION." See Welles v. Castles, 3 Gray 323. " Ok in case the said buildings shall be substantially DESTROYED " &c. Inasmuch as it may often be very impor- tant to a landlord, in case of the destruction of his building by fire, to erect one quite different and perhaps wholly un- suited to the purposes for which the lessee had previously been using the estate, it would seem that the insertion of such a clause as the above would be generally desirable as a means of giving the owner of an estate, in case of its substantial destruction by fire, but not for any lesser injury, the power to free himself and his estate from any further liability to his les- see, who might, if he chose, in the absence of such a clause, insist that the landlord should either let his estate remain un- improved and without rent during the remainder of the lease, or should rebuild such an edifice as stood there before, or, if he allowed the landlord to erect a better one, could claim to occupy it at the probably wholly inadequate rent of the old one. Stamp. Upon every " lease, agreement, memorandum, or contract for the hire, use, or rent of any land, tenement, or portion thereof, where the rent or rental value is three hun- dred dollars per annum or less," is required a stamp of fifty cents, and a like stamp is required for every additional two hundred dollars, or fractional part thereof, of such rent or rental value. Inter. Rev. Law Schedule B., "Lease." It is customary in Boston to place the full amount of stamps re- quired by law upon both parts of a lease; this, however, does not seem to be necessary, for if one part alone be stamp- ed, that will constitute a valid lease, and the other may be re- garded simply as a copy. But as both lessor and lessee are SPECIAL COVENANTS. 131 usually equally desirous of having a valid and legal instru- ment in their own hands, and are unwilling to be satisfied with a mere copy, it is usual, as above stated, for them to stamp both parts of the lease, each bearing half the expense of the stamps required. SPECIAL COVENANTS SOMETIMES INSERTED. (.4 covenant to renew.) That he, the said lessor, or his heirs or assigns, will on or before the expiration of this present lease at the request and ex- pense of the said lessee, his executors, administrators, or assigns execute to and with him or them a new lease of the premises hereby demised for the further term of three years, to commence from the expiration of the term hereby granted, at the same yearly rent, payable in like manner, and with and subject to the like covenants, agreements, and provisoes (except a covenant for further renewal) as are herein contained. (^Covenant relative to damage from Cochituate water.) That the said lessee &c. will save the said lessor and his representatives harmless from all loss or damage occasioned by the use, misuse, or abuse of the Cochituate water, or bursting of the pipes. For cases in which other special covenants and provisoes have been the subject of consideration by the Supreme Court, see the following : Kramer v. Cook, 7 Gray 550. Lease for a certain term and at the election of the lessee for a further term at an increased rent. Baker v. Adams, 5 Cush. 99. Proviso that either party by giving notice may terminate the lease before the end of the term. Wall V. Hinds, 4 Gray 256. Similar proviso except that lessee upon receiving such notice may elect to remain at an increased rent. Hayden v. Bradley, 6 Gray 425. — Leavitt v. Fletcher, 10 Allen 119. — Flynn v. Trask, 11 Allen 550. Covenants by lessors to keep the premises in repair. 132 LEASES. Way V. Keed, 6 Allen 364. Proviso that, upon failure to pay rent or breach of any covenant by lessee, lessor may re- enter and relet the premises at the risk of the lessee. Clapp V. Thomas, 7 Allen 188. Covenant in lease of farm that lessee will consume on the premises all the bay and fodder produced thereon during the term. Bartlett v. Greenleaf,, 11 Gray 98. Rent payable in ad- vance. Torrey v. WaUis, 3 Cush. 443. Covenant by lessor to pay all taxes, and by lessee to pay all costs, expenses, and charges, except the yearly taxes. Hunt V. Thompson, 2 Allen 341. Provision that the lessee may " deduct and reserve from the first rents " " the cost of the floors and such further sums as the parties shall hereafter agree, or shall hereafter be determined, is due." CBETAIN MATTERS RELATING TO LEASES IN GENERAL. A lease not in writing can create only an estate at will. Gen. St. c. 89, s. 2. A lease for more than seven years should be under seal, ac- knowledged, and recorded, as otherwise it will be valid only against the lessor, his heirs and devisees, and persons having actual notice of it. Gen. St. c. 89, s. 3. The estate created by a lease for one hundred years or more, so long as fifty years of the term remain unexpired, is to be regarded as an estate in fee simple, so far as concerns the descent and devise thereof and certain other matters. Gen. St. c. 90, s. 20, The use of leased premises for the illegal keeping or sale of intoxicating liquors or as a place of resort for prostitution, lewdness, or illegal gaming will make void the lease, and the lessor may take immediate possession either with or without VARIOtJS POINTS. 133 process of law. Gen. St. c. 87, s. 8, 6. But such use of leased premises does not make the lease void as against the lessor, so as to deprive him of his remedy on the lessee's covenants, unless at least the lessor has actual knowledge of the illegal use. Way v. Reed, 6 Allen 364, 370. Whoever knowingly lets a building or tenement owned by him or under his control for any of the above purposes, or knowingly permits it or any part of it while under his control to be used for such purpose, or after due notice of any such use omits to take all reasonable measures to eject therefrom the persons occupying the same as soon as it can lawfully be done, is liable to be punished by a fine of not less than $50.00 nor more than $100.00 and imprisonment in the house of cor- rection for not less than three nor more than twelve months, but at the discretion of the Court he may be sentenced to be punished by such imprisonment without the fine or by such fine without the imprisonment in all cases where he shall prove or show to the satisfaction of the Court that he has not before been convicted of a similar ofience. Gen. St. c. 87, s. 9 — St. 1866, c. 280, s. 1,3. A sealed lease of an estate belonging to partners, executed by one partner in the name of the firm, will not pass the estate of the other partners, even though the lease be for a term of less than seven years. Dillon v. Brown, 11 Gray 179. Com- pare Kendall v. Carland, 5 Cush. 74, 79. As to when informal instruments in the nature of agree- ments " '• on surrender of possession by mortgagee, 78. " " on deed conveying property sold under power of sale mortgage, 83. INDEX. 233 ST AMPS. (Continued). What required on lease, 130. " " on assignment of lease, 137. " " on extension of lease, 138. " " on agreement for sale of real estate, 154. " " on bond, 156. " " on bond of ofEeer of corporation, 159. on bill of sale of vessel, 161. " " on bill of sale of stocks, bonds, &c., 162. " " on bill of sale in other cases, 165. " " on mortgage of personal property, 172. None required on mortgage note, 68. " " on discharge of mortgage, 74. " " on certificate of acknowledgment of deed, 115. What instruments exempt, in general, 54. How to be cancelled, 53. How affixed by collector in cases of doubt, 54. ElFect of failure to affix, 54. Remedy in such case, 55. STOCKS. Stamped bill of sale required on sale of, 162. STREET. As a boundary in a deed, and when the fee to the centre of passes by a grant of adjoining land, 10. SUBLEASE. What 13 a, 126. SUBSEQUENT ACQUISITIONS. How far they can be affected by a mortgage of personal property, 168. ^ SUFFERANCE. (See Tenant at Suffekance.) SUNDAY. (See Lord's Day.) SUPPORT, Mortgages to secure, 67. SURETIES. Clause exempting executor from giving, 180. TAIL. (See Estate Tail.) TAXES. What taxes the lessee is bound to pay according to the covenants of a lease in the usual form, 124, 125. How to be apportioned, when lessee occupies a portion of a building, 125. TENANCY BY THE CURTESY. A husband's in his wife's separate estate is not an alienable interest, 98. TENANT AT SUFFERANCE. Liable to pay rent, 119. 234 INDEX. TENDER, 174. In what cases and at what time to be made, 174. To whom to be made, 1 74. Form of, 175. Consequences of, 177. TERM. Of lease, when it commences, 118. TIME. Of essence of contract for sale of real estate in this country, 154. For performance of such contract, how reckoned,. 154. TRUSTEES. Assignment of mortgage by, presumed to be valid, 70. One of several, cannot assign mortgage, C9. Form of conveyance by three old to two continuing and one new trustee, 86. Form of deed of, under power in will, 93. Form for power to sell by, 211. May in certain cases be allowed, perhaps compelled, to convey to ces- tuis que trust, 216. UNAVOIDABLE CASUALTY. What it is, 129. , UNDERLETTING. What it is, 126. USES. Conveyances to, 83. VESSELS. Bills of sale of, 160. No necessity for actual delivery on sale of, 163. WAIVER. Of one breach of a covenant in a lease, no answer to action for another breach, 121. Of notice to quit, 148. Of provisions of her husband's will by a widow, 192. WARRANTY. Covenant of, 39, Implied on sale of personal property, 161. WAY. Grant of land bounding on a, 10. WIDOW. Rights of, in estate of deceased husband, 191. Waiver of provisions of husband's will by, 192. Entitled to interest on legacy from husband from the time of his death, 217. When legacy is given to widow in lieu of dower, she is not to con- tribute with the other legatees in case of deficiency of assets, 218. INDEX. 235 WIFE. Form of conveyance from husband to, 87. WILLS, 179. Short form for, 179. Who may make, 182. Attestation of, 183. Who competent as witnesses to, 183. Publication of, 185. Nuncupative, 188. Revocation of, 188. Important points relative to, 189. WITNESSES. To Wills. Who competent as, 183. Must sign in presence of testator, 186. Need not sign in presence of each other, 186. (See also Attestation.)