Jackson ex dem. Gouch v. Wood — 12 Johns. 73

Majority

p. 73

Jackson, ex dem. Gouch, against Wood.

Headnote

a conveyance orest^f»/«, ™e<oibroní;»í. ’mdir 5Eai"

THIS was an action of ejectment for lot No. T. in the town of Locke, in the county of Onondaga, and was tried before Mr. Justice Thompson, at íhé Cayuga circuit, in Tune, 1813. '

The lessors of the plaintiff gave in evidence the exemplification of a' patent, dated the 13th of June, IT91, to John Day, for the lot in question. He then proved that Moses Gouch was the identical person who served and was known In the New-York line of the army by the name of John Day, and that he was the same person to whom the patent was granted by that name. It was also proved that 'Moses Gouch, alias dictus John Day, was dead, and that the lessors of the plaintiff were his heirs at law. .

The defendant gave in evidence an instrument in writing, endorsed on the original patent, dated the 19th of November, If92, signed cc John j-S Daybut without any. seal, by which he, John Day, for the consideration of ten pounds, paid to him by Benjamin Prescott, bargained, sold, remised, released, and quit-claimed to the said Benjamin Prescott, his heirs and assigns, all

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his right, title, claim, and interest, ■ of, in,, and to, the premises granted .and described in the patent, to. have and to hold the samé to the'said Benjamin Prescott and to his heirs and assigns, tó his and their only proper usé and benefit for ever; and to this instrument the ñames of two witnesses were subscribed.

. There never having been atiy seal to the Writing' thus' en dorsed on the patent, it was,objected, on the part of, the plaintiff, that it amounted to no more than a paroi Contract, and was not 'sufficient. to pass the land. " This, point was reserved by the judge, and the defendant gave in evidence sundry biesne conveyances (com.Benjamin Preséott to himself, all of which', had been duly recorded; he also showed a possession for seven or ■eight years. ‘ A verdict was taken for thé plaintiff, subject t© the opinion of the, court on a case,,as above stated..

Seely, for the plaintiff,

Van Buren, contra;

delivered the opinion of the court.

The single question in this ease is; whether an estate in fee can be conveyed .-otherwise than by deed: that is: to say,-> whether a seal is essential to such conveyance ?

Tlie earliest inode of transferring a' freehold estate, known in the English common law, was by livery'of seisin only, (Co. Lit. 49 b. 48 b.); Blit when the art 0,f writing became common among our rtide ancestors, the deed of feoffment was introduced,. in order to ascertain with tabre precision the nature and extent of the estate granted, with the Various conditions and limitations. This deed; however, was ófytío validity, unless accompanied by the old ceremony of livery andseisini ‘ (2 Black. Com. 318.)

- The statute.of uses (27 Hen. VIII.) gave'rise to. the,deed of bargain and sale; and soon afterwards, the conveyance by lease and release- was" introduced, in order go avoid the necessity Of enrolment, required, by the 'statuteof 27 Hen. VIII. (2 Black. Com. 343.) By Virtue/of the statute of uses, which we have adopted, (without the proviso in the English statute requiring the enrolment of deeds,) the deéd of bargain and sale, now in usé befé, is equivalent to the deed of feoffment

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with livery of seisin, (2 Black. Com. 339. 343.) and has, in practice, superseded the lease and release.

By the common law, estates less than a freehold might be created or assigned, either by deed, by writing, without seal, or by paroi merely.

By the 29 Car. II. c. 3. (9th and 10th sections of our “ act for the prevention of frauds’’) it was enacted, “ that all leases, estates, interest of freehold, or terms of years, or any uncertain interests in lands, &c. made or executed by livery and seisin only, or by paroi, and not in writing, and signed by the parties so making and creating the same, shall have the force and effect of leases or estates at will only; excepting leases for three years and less,” &c.; and “ that no leases, estates, or interests, either of freehold, or terms. of years,” &c. “ in any lands,” See. “ shall, at any time hereafter, be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same/’ &c.

Now, it is contended on the part of the defendant, that the common law mode of conveyancing has been so modified by this statute, as to destroy the distinction between an estate of freehold, and an estate less than a freehold, as it regards the mode of alienation ; and that either may now be conveyed by 65 note in writing” without seal, as well as by deed.

No.direct decision appears to have been made on this point 5 but in the case of Fry v. Philips, (5 Burr. 2827.) and in the case of Holliday v. Marshall, ( 7 Johns. Rep. 211 .) it was de» cided, that a written assignment of a lease for ninety-nine years was valid, though not sealed; upon the express ground, that it was the sale of a chattel-real, for which the statute of frauds requires only a “ note in writing ;” plainly recognising the distinction between a term for years, and & freehold estate, as to*the mode of conveyance.

According to Sir William Blackstone, (2 Black. Com. 309. &c., sealing was not in general use among our Saxon ancestors. Their custom was, for such as could write, to sign their names, and to affix the sign of the cross; and those who could not write, made their mark in sign of the cross, as is still continued to this day. The Normans used the practice of sealing only, without writing their names ; and, at the conquest, they introduced into England waxen seals, instead of the former English

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mode of writing their names-and affixing, the sign.of . the cross ; It being then usual for every freeman to have his distinct and, particular seal. The neglect pf signing, ánd resting upon the. authenticity, of seals alone, continued for several ages, during which time it was held, fey all the English courts, that sealing alone was sufficient.; But, i-w process of. time, the practice of .using particular-and appropriate- seals, was, in a great measure, disused; and Sir William Blackstone, (2 Black. Com. 310.) seems-to. consider the statute of 29 Car. II. c. 3. (of which the 9th and,10th, sections, of -our statute of frauds are a .copy) as reviving, the ancient Saxon custom pf 'signing,/without. dispensing with the.ag then in úse, under the custom -derived frpm the Normans, 1

We. have the authority of that learned commentator, unequivocally in favour of-the opinion; that a seal is indispensable in order to- convey an estate in fee -simple, fee tail, or for life.. (2 Black. Com. 297. 312.)

Such seems to have been the practical construction, ever .since the statute, of Car. II. in England, ,aiid under our statute of frauds in this state; and to decide now, that a seal is unnecessary to pass ¡ a fee; would be to introduce a new rule of conveyancing, contrary to the received" .opinion, and almost "universal practice; in. our communityand danger pus in its retrospective operation.- Construing this statute with reference to the preexisting common law; and 'the particular, evil intended to be remedied; I think the. legislature did ;not intend to di^pense ■ with á seal; where it was before required, as in a conveyancé pfya freehold-'estate; but the object, was to require such deeds to be signed also, which the-courts had decided to be unnecessary. V - ■ . ' •'

I construe this statute as though the- form-- of expression had been thus: “■ No estate of freehold shall be granted, unless- it be: by deed signed by the party granting; apd no,, estate less than a freehold; (excepting leases for three years, See.)) shall be granted, or- surrendered, unless -by deed;,, of note in. writing signed"by the grantor.5’ ' ; - /

, This, venerable custom pf sealing,. is a‘réHñ of . ancient wlsdom, and is not;without, its.- real use at -this) day. There is yet stíme degree of sólémhity in-this form pf conveyance. Á seal .attractsattention,. and excites caution in- illiterate persons, and thereby operates as 8 security-against fratid.; •.

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If a man’s freehold might be conveyed by a mere note in writing, he might more easily be imposed bn,, by procuring his signature to such a conveyance, when he really supposed he was signing a receipt, a promissory note, or a mere letter.

The plaintiff is entitled to judgment.

Judgment for the plaintiff,^[1]

(a) (a) See Warren v. Lynch, ( 5 Johns. Rep. 239 .) as to the origin, nature and use, of seáis. "