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“The law as to ‘delivery’ of a deed is of ancient date,” said Lord Denning M.R. in a recent case, “but it is reasonably clear. A deed is very different from a contract. On a contract for the sale of land, the contract is not binding on the parties till they have exchanged their parts. A deed is binding on the maker of it, even though the parts have not been exchanged, as long as it has been signed, sealed and delivered. ‘Delivery’ in this connection does not mean ‘handed over’ to the other side. It means delivered in the old legal sense, namely, an act done so as to evince an intention to be bound. Even though the deed remains in the possession of the maker, or of his solicitor, he is bound by it if he has done some act evincing an intention to be bound, as by saying: ‘I deliver this my act and deed.’ He may, however, make the ‘delivery’ conditional: in which case the deed is called an ‘escrow’ which becomes binding when the condition is fulfilled.”
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References
1 Vincent v. Premo Enterprises Ltd. [1969] 2 All E.R. 941 at p. 944.Google Scholar
2 At p. 948.
3 3rd ed., § 2405 et seq.
4 It is perhaps worth noting that with interests in land the document must have been made for the conveyance in hand. English common law has never permitted the creation of a legal estate in land purely by transferring existing title deeds, though in comparatively modern times equity has allowed the creation of mortgages in this way. If it is correct that writing was transferred originally as symbolic of corporeal transfer (infra, p. 55), then it might be asked why did title deeds entitling the grantor not serve as well as new documents entitling the grantee. Apart from practical reasons such as the grantor's warranty, the explanation, if explanation be required, may be that in feudal society a change in tenancy whether by subinfeudation or substitution involved the creation of new relationships and was not merely the transfer of an asset of wealth.
5 So in 1294 a judge admonished counsel (YB. 21 & 22 Ed. I (Rolls Series) 404), “You know very well that charter and fine are not the deed, but only evidence of the deed.” So livery was effective without writing (though spoken words were necessary), and the terms in which the feoffment was orally expressed overrode an inconsistent clause in any charter. Bracton makes the same point by stating that if the king makes two inconsistent gifts the earlier of the two seisins prevails, even if the later seisin was supported with a charter earlier in date than the first seisin (Thorne's ed. II, pp. 172–173). But in pre-Bractonian days the donatio (the charter) was a jural act of transfer.
6 Law of Property Act 1925, s. 73: a signature or mark is necessary and sealing no longer sufficient. This section applies, semble, to all deeds, not only to deeds which are conveyances.
7 Plucknett, Concise History, 612: “We do not commonly find signatures on deeds before the sixteenth century.”
8 Pollock & Maitland, II, 224.
9 Medieval monarchs used borrowed seals in an emergency (Maxwell-Lyte, The Great Seal, pp. 60–63). It is clear that A's seal used by B bound B, not A. This seems obvious but originally there was some odd “magic” in seals. Glanville (X. 12. Hall's ed., p. 127) tells us that if a man acknowledged in court that the seal was his but denied that the charter was made by him or with his consent, “he is strictly bound to warrant the charter and to observe without question the agreement set out in the charter as it is contained therein; and he should blame his own poor custody if he suffers damage because his seal was poorly kept.” This rule soon faded and in the yearbook period non est factum was pleadable.
10 Per Byles J., Re Sarah Jane Sandilands (1871) L.R. 6 C.P. 411 at p. 413 (the deed had pieces of green ribbon attached but no wax or impression). Lindley L.J. thought this “a good-natured decision in which I am not sure I could have concurred,” but it is accepted and there is no longer even the need to impress (as in one old case the grantor did by biting the wax). See Stephen, Digest of the Law of Evidence, 12th ed., p. 91, n. 1.
11 Termes de La Ley, s.v. Fait, first published in 1520.
12 Hall v. Baimbridge (1848) 12 Q.B. 699 at p. 710. “The Court are to draw all inferences of fact that a jury would be justified in doing. The document was produced by the plaintiff, executed by Mr. Solly. We cannot doubt that if the subscribing witness had been called and had proved that he saw it signed and sealed by Mr. Solly, the jury, on its production by the plaintiff, would have been justified in inferring, and would have inferred, that it was delivered by Mr. Solly….”
13 Similarly with the English word “deed.”
14 p. & M. II, 86–89.
15 He was writing of realty. The common law adhered to the requirement of delivery in the transfer of chattels, and apart from traditio brevi manu the only exceptions established in the yearbook period were the transfer of property on a contract of sale and transfer by deed. With regard to realty, the yearbook lawyers established the rigid requirement of actual transfer of seisin upon the land and the practice of symbolic livery perished in the thirteenth century. The best account is by Thorne, “Livery of Seisin” (1936) 52 L.Q.R. 345, who concludes that “symbolic investiture was well established in England during the early twelfth century as it was on the Continent: permanent evidence of its presence is found in the continuing importance of the donatio and in the formulae of the normal charter which inconsistently continues to witness a completed gift before the transaction of gift is concluded.”
16 Op. cit., p. 192.
17 This is not, of course, Maitland's comparison but that of Bracton and his contemporaries. Maitland remarks indulgently that “Justinian (Inst. 3.21) had done his very best to lead the medieval lawyers astray.”
18 One is reminded that one theory of Roman stipulatio is connected with the use of stipulae, as Isidorus writes (Orig. 4.24), “veteres enim quando sibi aliquid promittebant, stioulam tenentes frangebant quam iterum iugentes, sponsiones suas agnoscebant.” But the broken straw here serves more than a symbolic function, and the etymology of stipulatio is a highly controversial and perhaps unanswerable question.
19 The great majority of the cases are concerned with debt on an obligation.
20 Y.B. Hil. 8 H. 6, f. 26, pl. 15.
21 Y.B. Mich. 9 H. 6, f. 37, pl. 12.
22 Beesly v. Hallwood Estates Ltd. [1961]Google Scholar Ch. 105. The only qualification is that equity may require the release of the grantor on unreasonable delay of a future conditional performance by the grantee.
23 The controversy was over the fiction of relation back. One school of thought held this transaction void because of the grantor's married status at the time of delivery as her deed. The view which prevailed allowed its validity ut res magis valeat, according to Butler and Baker's Case (1591) 3 Co.Rep. 25a at 35b.
24 Profitable Book, Chap. II, s. 141.
25 Co.Litt. 36a.
26 Among numerous instances one of the earliest is Ferlington v. Fleming (1311) YB. 4 Ed. 2 (Sel.Soc. Vol. 26, p. 85). Assize of novel disseisin in which tenant produced a release and quitclaim by the plaintiff, who acknowledged the deed but said the quitclaim was made upon conditions of defeasance and that the conditions had been met. The parties compromised. Stanton J.: “Well it is for me that you are agreed, for the Court is relieved of much trouble, for in justice though you [the plaintiff] have good faith on your side, the law of the land would have served you nothing.”
27 The strongest revolt was in Hawsland v. Gatchel (1601) Cro.Eliz. 835, a unanimous decision of the King's Bench. The reasons given are significant, particularly the remark of Fenner J.: “for although difference hath been taken that a deed shall not be delivered to the party himself as an escrow, but to a stranger, and the reason hath been alleged, because when it is delivered to the party himself, there cannot be a second delivery, whereupon the writing should take effect as his deed; that seemeth to be no difference, for when it is delivered to the party as an escrow, the words are not sufficient to make it to be his deed until the condition be performed.”
28 Johnson v. Baker (1821) 4 B. & Ald. 440 (delivery to creditor on condition of his obtaining execution by other creditors); Hudson v. Revett (1829) 5 Bing. 368; Bowker v. Burdekin (1843) 11 M. & W. 128 at pp. 146–147, per Parke B.
29 For the bailee's position, see F.N.B. 106E and Corbin on Contract, Pt. 1, Chap. 10, § 248, where the YBB. on Interpleader are cited. “These are practically all cases where one of the parties brought detinue against the holder of the chattel or the escrow, the latter replying that he did not know whether or not the conditions were fulfilled and asking [for] a writ of ‘garnishment’ against the other party to the agreement to compel him to interplead with the plaintiff on the issue as to the fulfilment of the conditions.”
30 Op. cit. § 2408. The rule, like many other awkward propositions of common law, has yielded more slowly in America than in England to judicial extirpation. There is a rich American literature, one of the best discussions being by Arthur Corbin, L., “Conditional Delivery of Written Contracts” (1927) 36 Yale L.J. 443.Google Scholar The English periodical literature is negligible.
31 Superficially this seems to suggest that the yearbook lawyers could not cope with the concept of traditio brevi manu. This is certainly not so, for conveyance by release and quitclaim was no more than traditio brevi manu. They adhered to the rule for practical as well as doctrinal reasons. The Common Bench explained in 1602 (Williams v. Green, Cro.Eliz. 884) that otherwise “a bare averment without any writing would make void every deed.”
32 Clayton's Case (1585) 5 Co.Rep. 1a, a decision of the King's Bench that a deed is operative from the time of delivery, not from the date on the deed. See also Goddard's Case (1584) 2 Co.Rep. 4b. The rule goes back much earlier.
33 p. 57; first published 1651, but probably composed by Doderidge J.
34 Thoroughgood's Case (1612) 9 Co.Rep. 136b at 137a.
35 Cro.Eliz. 7.
36 Owen 95, 1 Leon 140 (in C.B.); Cro.Eliz. 122 (Exchequer Chamber).
37 This did not mean literally a hand to hand delivery by obligor to obligee. Parker v. Tennant (1560) Dyer 192b: the day before his marriage the obligor handed the obligation to his future wife, saying “this will serve.” She handed it to the obligee, then present, without saying more. The obligee was expressed in the deed as holding to the use of the woman. The jury gave a special verdict and prayed “the advice and discretion of ths Court.” The Common Bench unanimously gave judgment for the obligee; on error this decision was affirmed by the King's Bench.
38 1 And. 4, Dyer 167b, Benloe 75 (who argued for the defendant). Coke extracted the pleadings into his Book of Entries, ff. 145–146, Debt, No. 24, and the record shows clearly that the decision was on the insufficiency in law of the defendant's plea.
39 According to Dyer, who was on the bench, very much against the opinion of Sir Anthony Brown C.J. but adds Dyer, other judges (of the King's Bench) approved the decision of the Common Pleas.
40 Re Gulbenkian's Trusts (No. 2) [1969] 2 All E.R. 1173 at p. 1179Google Scholar, per Plowman J., recognising “the general principle that no one can be compelled to accept a gift against bis wish. As long ago as the Yearbooks it was somewhat quaintly said that ‘a man cannot have an estate put into him in spight of his teeth.’
41 3 Co.Rep. 25a at 26b.
42 The old law was strict on the divesting of realty. Freehold land could vest without the donee's assent, and if the donee wished to divest himself, he had to do so by waiving the benefit in a court of record. Later law took another view and held that, though naturally a donee is presumed to assent till he renounces, nevertheless he can renounce in pais. Bonefant v. Greenfield (1587) 1 Leon. 60;Thompson v. Leach (1690) 1 Ventris 198; Townson v. Tickell (1819) 3 B. & Ald. 31.
43 It was, says Dyer, “in law the deed of the defendant [A] before delivery over to the party [B], and then the refusal of the party cannot undo it as the deed of the party [A] from the beginning” (italics supplied). In Taw v. Bury the general issue, non est factum, was pleaded, and the defendant lost. The better authorities on pleading assert that refusal should be specially pleaded, for non est factum asserts nullity, not voidability. It was only safe to plead the general issue where the defendant could show he had never delivered the instrument as his deed. See Whelpdale's Case, 5 Co.Rep. 119a, note C, for editorial summary on pleading the general issue.
44 Cro.Eliz. 54; 2 Leon. 111.
45 See also Bease v. Draiton (1595) Cro.Eliz. 143; Markham v. Gonaston (1598) Cro.Eliz. 626.
46 Such as the King's letters patent or grants under the seal of the Duchy of Lancaster; or enrolled obligations such as a statute staple. Further, this paper does not explore the law merchant upon writings obligatory, whether sealed or not.
47 e.g., Case of Dean and Chapter of Femes (1607) Davis at 44b, in arguendo.
48 Gartside v. Silkstone and Dodsworth Coal and Iron Co. (1882) 21 Ch.D. 762 at p. 768.
49 Mowatt v. Castle Steel and Iron Works Co. (1886) 34 Ch.D. 58 at p. 62.
50 Cro.Eliz. 167; 2 Leon 97.
51 See the disarray of judicial opinion in Hayward v. Fulcher (1627) W.Jones 166 at p. 170; Palmer 491 at p. 504.
52 Good v. Ash (1675) 3 Keble 307; 1 Ventris 257.
53 Derby Canal Co. v. Wilmot, 9 East 360. On the facts the company had ordered their clerk to retain the conveyance pending adjustment of accounts with the purchaser, so the sealing did not execute the deed.
54 Prec.Ch. 211.
55 Prec.Ch. 235; 2 Vernon 473. The decree was affirmed in the House of Lords, 7 Brown Parl.Cas. 410.
56 1 P.Wms. 577.
57 The decision was approved but distinguished by Lord Hardwicke in Boughton v. Boughton (1739) 1 Atk. 625, where he established a voluntary settlement (retained by the settlor) against a subsequent will.
58 2 P.Wms. 358.
59 The stock was not assigned, there was merely a covenant to transfer. The covenant was sued successfully at law and held binding against the second husband. King v. Cotton (1732) 2 P.Wms. 674.
60 Ambler 264.
61 By reducing his estate below the qualifying value. He did not, however, commit the deceit, for he declined the office and paid the usual fine. Hardwicke expressly excluded considerations of fraud, but it would have been otherwise if the fraud had been perpetrated.
62 Thus implicitly deciding for the purpose of a court of equity that the settlement was legally perfect.
63 Cecil v. Butcher, 2 Jac. & W. 565 at p. 578.
64 In Cecil v. Butcher the settlor made a secret settlement on his son to give him the statutory qualification in landed property to kill game, being fearful of a prosecution. This, and cases like it, are the sources of much of the later law on locus poenitentiae where property is transferred for an illegal or fraudulent purpose.
65 Roberts V. Roberts (1818) Daniell 143, an equity case in the Exchequer, followed by a decision of the King's Bench in 1819, 2 B. & Ald. 368. The dearth of eighteenth-century cases is curious. Lord Mansfield's views of what “delivery” required may be seen in Goodright d. Carter v. Straphan (1774) 1 Cowper 201, Lofft 763. A mortgage deed delivered to the mortgagee while the mortgagor was a married woman was void, but her clear acknowledgment and confirmation of it after the death of her husband was regarded as sufficient re-delivery of the deed. The widow had surrendered possession to the executors of the mortgagee and ordered her tenants to attorn to them.
66 5 B. & C. 671.
67 Another part of the decision was that the deed was no t void against creditors (13 Eliz. c. 5) nor against the defendant as a purchaser (27 Eliz. c. 4).
68 Supra, pp. 64–67. Bayley J. expressly did not rely on Doe v. Roberts, supra, n. 65, because the grantor there in fact did part with the deed.
69 Wynne may have intended to part with the mortgage deed and have done so, but it is worth noting that the sister only knew she had possession of a brown paper parcel, though the niece knew that she had witnessed a legal document. Can there be an effective transfer of a deed to a grantee or his representative where the recipient does not know the nature of the object delivered? The answer appears to be that there can.
70 Supra, n. 28.
71 This is, of course, the modern position. It would have shocked the yearbook lawyers profoundly to think that an escrow could generally become a deed without delivery as such. It is important not to be misled by such statements as that in Perryman's Case (1599) 5 Co.Rep. 84a at 84b: “if a man delivers a writing as an escrow to be his deed on certain conditions to be performed, and afterwards the obligor or obligee died, and afterwards the condition is performed, the deed is good, for there was traditio inchoata in the life of the parties, sed postea consummata existens by the performance if the condition takes its effect by force of the first delivery without any new delivery….” This deals with the fiction of relation back which was allowed where otherwise the instrument would, contrary to the intention of the parties, fail to take effect as a deed. The relation back operated on the delivery in escrow to the intermediary. As with death, so with coverture, see YB. 27 H. 6, f. 7, pl. 3; Frosett v. Walshe (1617) J.Bridg. 49 (coverture); Graham v. Graham (1791) 1 Ves.Jun. 272 (obligor's death).
72 2 De G.J. & S. 365.
73 Vice-Chancellor in 1842.
74 (1862) 13 C.B.(n.s.) 381; (1863) 14 C.B.(n.s.) 435; (1867) L.R. 2 H.L. 296.
75 In the protracted litigation no attention was given to the corporate status of the grantor. Cf. supra, pp. 63–64.
76 Italics in report.
77 Bramwell B. and Pollock C.B. thought there was no binding contract at all, the written policy not being assented to by the plaintiffs, Pollock C.B. going so far as to say, “I attach no importance whatever to the technical delivery of the deed.” In offer and acceptance analysis, the slip was only a proposal, not an offer; the policy was the offer and not accepted. But Martin B. held that because of the refusal “the inchoate delivery was therefore never completed; and there never was a binding contract. It was not delivered as an escrow, which is delivery upon condition. It was an incomplete and inchoate delivery, which was never perfected.”
78 p. 312.
79 He later quotes Butler and Baker's case, supra, n. 41.
80 Except the time of the obligor's death, for that would be to permit a testamentary disposition without the statutory formalities.
81 p. 323.
82 p. 324.
83 Naas v. Westminster Bank Ltd. [1940] A.C. 366 at p. 399.Google Scholar This is the only House of Lords decision of importance in recent years. The settlor had unconditionally executed the deed on the faith of further execution by a covenanting beneficiary. It was not argued but admitted that this was not an escrow. The House held that in the absence of an express condition there was no reason why this should not stand as his deed though the beneficiary did not execute. As Lord Romer, at p. 410, pointed out the only equity in this situation “is that where, owing to the non-execution of a deed by one of the parties, the others who have executed it would by the application of the common law rule be bound by a covenant or transaction different in kind from that which it was their intention to enter into, they can be relieved in equity from the results of their execution of the deed.” But it is still their deed. So in Bowker v. Burdekin (1843) 11 M. & W. 128, a partner executed a deed conveying to trustees all the personal property of the partners and executed it on the footing that the other partners would also execute it, which they failed to do. There was no express condition to that effect. It was held to be his unconditional deed, not an escrow.
84 Bramwell B. (14 C.B.(n.s.) at p. 467) considered such fears ill founded. If such dishonesty were practised, “merchants will find it desirable to observe the rules of law, and will do so,” that is, by requiring actual consensus on the written policy. The Baron was a sturdy protagonist of the view that consensus was vital to contract; he never subscribed, e.g., to the proposition in Adams v. Lindsell (1818) 1 B. & Ald. 681, that an uncommunicated acceptance can be binding. The introduction of principles of consensual contract into the law of deeds, however, is an erroneous method. It was on account of such an error that the House of Lords overruled the Court of Appeal in Naas v. Westminster Bank Ltd. [1940]Google Scholar A.C. 366.
85 14 C.B.(n.s.) at p. 474.