Allston v. Thompson
1 S.C. Eq. 271
S.C.
1840
Check Treatment

Lead Opinion

Curia, per

Butler, J.

It was conceded in argument that the paper in question, in this' case, if valid at all as a’ deed, must be so under the Statute of Uses, as a bargain and sale; for it was not pretended that it was good as a Common Law instrument, there never having been livery of seisin, or possession-under it. It must be judged of according to its literal purport *273and what appears on the paper itself. It must be assumed that it was duly signed, sealed and delivered, and that it had one subscribing witness. And the question then arises, can a deed of bargain and sale be good and effectual for the conveyance of freehold, according to the law of South Carolina, without having at least two subscribing witnesses?

In 2 Comm. 307, Blackstone says, “the last requisite^ to the validity of a deed is the attestation, or execution of it, in the presence of witnesses; though this is necessary, rather for preserving the evidence than as constituting the essence of the deed.” From which it would seem, that according to the laws of England, subscribing witnesses are not essentially necessary to the validity of a deed. In the early and barbarous ages of the law, few could write or sign their names; and a deed derived its validity from the seal and the transmutation of possession from one to another. This was done usually in the presence of many witnesses, and with great form and ceremony. I doubt whether there ever was a deed, either at common law or under the statute of uses, that was not executed in the presence of witnesses. Livery of seisin seems to imply publicity and the presence of witnesses. I have examined many forms of deeds presented by conveyancers, and all of them, without exception, have a clause of attestation in the presence of at least two subscribing witnesses. Such has been the universality of the practice in this country, that all my brethren concur in saying that they never saw an effectual deed for the conveyance of land, (unless this be one,) which was not executed in the presence of subscribing witnesses. An instrument of this kind has been held good, as an agreement in writing, to authorize equity to direct a specific performance. ,

It is supposed that the deed which was held a good bargain and sale in the case of Rugg vs. Elles, (1 Bay R. 107,) was without subscribing witnesses. Such a conclusion is not justly inferable from the report of the case. The deed bore *274date, l£)th August, 1785, and was said to have been executed in the presence of witnesses. The reporter does not undertake to give the entire deed literally, but says it.was “in substance, as follows.” There is neither seal nor witness to it, as copied; and }et it is certain there was a seal to the original, and probably witnesses. Whether witnesses were legally necessary, was not a question in the case; the question Was, whether, in character, it was a bargain and sale; and, if so, whether a bargain and sale was. effectual to carry land without livery of seisin; and it was determined that it was. But if it had been held that witnesses were unnecessary, then it would not. affect the question now before the court, as that decision was made before ’95.

I will now enquire what is a deed and bargain of sale, and gee whether, in its essential and distinctive characteristics, it is distinguishable from the form, of dee,d presented by the Act of’95. In the case of Rugg vs. Elles, the reporter says, at the conclusion of the opinion of the court, that since the decision of the case, which was in 1790, (the reporter publishing his work in 1809,) by an Act of the Legislature, a bargain and sale is declared to be a good deed to pass the fee, in all cases, without livery of seisin. T can find no other Act, and I believe ther.e is none, on the subject, except that of 1795, which presented tire form of deed now in use ; and that, the reporter regarded as nothing but a bargain and sale. And when examined and analyzed, it will be found to be nothing else ; or, at least, it includes a bargain and sale in it.

One of the species of conveyance introduced by the statute .of uses, which, as Blackstone says, is a kind of real contract, yvhereby the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to bargain and sell, the land to the bargainee, and becomes, by such a contract, trustee for apd seised to the use of the bargainee; and then the statute .pf uses completes the purchase. But, as it was foreseen that conveyances thus made would want the notoriety which the old. common law assurances were intended to give; to prevent^ *275therefore, clandestine conveyances of freehold; it was enacted in the same session, by Stat. 27, Henry 8, c. 11, that such bargain and sale should not inure to pass a freehold, unless the same be made by indenture, and enrolled, within six months, in one of the courts of Westminster Hall, or with the cusios rotulo rum of the county. It is evident that this last statute, requiring enrolment, could not have been practically in force in South Carolina; as such deed could not-have been enrolled or recorded as therein required; and thd only deed of the kind, the one in the case of Ruggs vs. Elks,; noticed in our reports, was a deed poll, and not an in'dentdM-A bargain and sale must, therefore, have been regarded as good under the statute of uses. Such a mode of conveyance seéms not only to have received the sanction of the court,-but is recognized in several Acts of our Legislature, belore and after the revolution. In what is called.the quit-rent Act of 1731,-it is enumerated, among others; (3 Stat; So. Ca., 302, sec. 28;) also in the recording Act of 1789, (5 Stat So. Ca.; 127.) It must be regarded, now, as having the same validity as lease and release, and, it seems to me; for the very same reasons; for lease and release was, essentially, a bargain and sale under the statute of uses, and was introduced to evade the 27-Henry 8, requiring the enrolment; It is very certain that lease' and release was the usuftl conveyance of land in Sóulh Carolina, previous to ’95, notwithstanding other conveyances w'ere' regarded as legally valid. Some doubts must have been entertained as to a bargain and sale, strictly so called, or its simplicity would have recommended it to general use,- Éíhd would have obviated the necessity of the Act of 1795.

I have said that lease and release was but a complicated form of bargain and sale. Blackstone says, ‘-a lease, or rather bargain and sale, on some pecuniary consideration, for one yeas, is made by the tenant of the freehold to' the lessee or bargainee; now this, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year, and- the statute? *276immediately annexes the possession. He, therefore, being in possession, is capable of receiving a release of the freehold, or reversion.” Lease and release was supposed to have the advantage of feoffment, as there was supposed to be possession under it. Lease and release was effected by two deeds, one a bargain and sale, and the other a release, a sale by release. What has the Act of 1795 done, but reduce this mode of conveyance into one deed? There could not be a lease and release without a bargain and sale. This is the language of the Act of 1795: “Whereas, the mode of conveying land by lease and release, is expensive and inconvenient, &c.; be it enacted that the following form or purport of a release shall, to all intents and purposes, be valid and effectual to convey from one person to another, the fee simple of any land or real estate, if the same shall be executed in the presence of and subscribed by two or more credible witnesses.” The language of the form presented is, “have bargained, sold and released, and by these presents do bargain, sell and release.” What does it amount to, but bargain and sale and .release! It combines in it all the operative qualities of both; it includes in it bargain and sale; and to maintain that to write on a piece of paper “I, A B, do bargain and sell,” would be good ; but, when the word release is added, it would be bad, would be to say, the minor, which is included in the major, could be good, where the major, which includes the minor, would be bad. In other words, a bargain and sale, isolated and alone, would be good, but where included in a deed of release, would be bad. I think the proposition cannot stand the test of scrutiny. , The form prescribed by the Act, is a reduced form of bargain and sale, lease and release, and where any paper having these qualities, is intended to operate as a deed for the conveyance of freehold, it must have two subscribing witnesses. The paper before the court has but one, and cannot be supported as a deed. If such papers were allowed to operate as deeds, human vigilance could not guard against the mischiefs of clandestine and fraudulent conveyances. Courts *277should never throw down the barriers of security, which the law has wisely and judiciously constructed for the protection of property.

The Act of the Legislature does say that the form prescribed should not invalidate the forms heretofore in use in this State; that is, all Common Law modes of conveyance which were attended with notoriety and transmutation of possession from one to another. All other forms are excluded by the one presented.

Upon the whole, we are dissatisfied with the decision below, and order the nonsuit to be set aside. [In Craig vs. Pinson ; but motion dismissed in Allston vs. Thompson.]

Johnson, Gantt, Evans, Johnston, Earle and Dunkin, JJ., concurred.



Dissenting Opinion

O’Neall, J.,

dissenting. In these cases, I have the misfortune to differ from a majority of the Court. That the deeds, at Common Law, are good as deeds of bargain and sale, without witnesses, is abundantly shown by the argument of Mr. Perry, to which I refer for a correct statement of the law. As I understand my brethren, I believe they do not deny this ; but they contend that the form adopted by the Act of ’95 is, in substance, a feoffamentum, a bargain and sale and release, and that all deeds executed since, must have some of these requisites, and must, of course, have two witnesses. With great respect and deference, I think this argument more specious than solid. It is true, the operative words of these several modes of conveyance, are to be found in the form prescribed by the Act. But because it combines them all, it does not. follow that it is any one of them. It is a new creation made out of them all, and when it is adopted, then, two witnesses are required. But notwithstanding the Act'of ’95, any one of the Common Law modes of conveyance .may be resorted to, and there is nothing in the Act which reaches it ;• for the provision in the enacting clause declares that the form established by the Act was not to have the effect “to invali--*278date the forms heretofore in use in this State.” This saved every interest arising from or by any other mode of conveyance.

It has been supposed that, the recording Act of 1785, must have some effect on the decision of this case. In one point of view, I admit, it has; Its plain words show that witnesses were not necessary to the validity of a deed. Writing, signing, and sealing, are the only three requisites to make it binding between the parties. Against purchasers without notice,recording is a fourth requisite. To admit such deed to record, it was required, by the Act of ’85, that it should be acknowledged by the grantor or grantors, or by proof of the signing, sealing and delivery, by the oath of two credible witnesses in open Court. The Act of 1788 (P. L. 453,) altered this provision, and dispensed with the necessity of an acknowledgement of the grantor, or probate by the attending witnesses in open Court, and provided that an acknowledgement by the grantor or grantors, before a judge of the Supreme Court, or oath of one witness, before a magistrate out of court, swearing that the deed was duly executed, should be sufficient to admit the deed to record. These provisions,’ it is plain, do not affect the validity of the deed as between the parties. They are intended to prevent double conveyances; and it may be that a deed which could, not be admitted to record, for want of proof,- might not operate against a purchaser.

But let it be conceded that these provisions reach the deed as between the parties: what then 1 There is nothing in the Act of ’85, which speaks'of attesting witnesses. If the deed was acknowledged in open court by the grantor, or the facts of signing, sealing and delivering proved by twro witnesses, it must go upon the record, whether there were or were not subscribing witnesses. This would show that the deed must be good without witnesses. The Act of ’88 does speak of attesting witnesses; but, in the mode of proof adopted by it, it does not require proof by the subscribing witnesses: an *279“acknowledgement before a judge of the Supreme Court, or oath of one witness before a magistrate out.of court, swearing that the deed was duly and legally executed, as heretofore has been the practice to make proof,” is all which it requires. In this Act, there is nothing to make subscribing witnesses necessary to the validity of a deed. For, admit that from its phraseology there must be a witness attesting the execution, does it follow that that witness must, be a subscribing one? I think not; for a witness may attest a transaction and not make any memorandum of it.

Pern], for the motion, (in Allston vs. Thompson.) The plaintiffs claim under a deed from the Deputy Marshall of the United States. The deed is without subscribing witnesses, and the plaintiffs were non-suited. They offered to prove the execution of the deed, by witnesses who were ac*-quainted with the hand writing of the Deputy Marshall, and were not permitted by his Honor, the presiding Judge. The principal question for the consideration of the Court in this case, is, whether a deed, executed without subscribing witnesses, be good and valid to pass lands in South Carolina. In determining this question, we must first consider whether the Act of 1795, “to facilitate the conveyance of real estates,” renders null and void other forms of conveyance than that therein prescribed. Your Honors will perceive by reference to the Act, (2 Faust, 4, 5 ; 1 Brevard Dig., 176,) that it does not. The preamble states that “whereas the mode of conveying land by indentures of lease and release, is expensive, and is found by many inhabitants of this State to be very inconvenient; for remedy thereof, be it enacted,” &c., “that the toYiowmgform or purport of a release, shall, to all intents and purposes, be valid and effectual to convey,” &c. “if the same shall be executed in the presence of, and be subscribed, by two or more credible witnesses.” Then follows the form, and in conclusion is the following proviso, “That this Act shall be so construed as not to oblige any person to insert the clause of manority,” &c., “or to invalidate the forms heretofore in use toithin this State!’ There can, then, be no doubt that this Act was passed to shorten and simplify the form of a conveyance of lands, without in any manner, interfering with other modes in use at Common Law, or under the Statute of Uses. If the parties desire it, they may still resort to “the forms heretofore in use within this State.”

*279But, if there must be a subscribing witness to a deed, how does it happen, in Craig’s case, that the deed is to be adjudged void, when, in that case, there is a subscribing witness ? But I hold that a deed not pursuing the form of the Act of ’95 is good between the parties without'a subscribing witness.

I think, if understood rightly, that the opinion of some of the judges turned upon the usage of the country. That it is usual to have two witnesses to attest the execution of a deed and subscribe the memorandum of execution, is true beyond all doubt. But that usage is attached to and follows the form ol the Act of ’95, and can therefore have no sort of effect. To say, however, that usage would render void a good Common Law conveyance, is giving to it the effect of a statute. That is a going a step, and a very great step, beyond any thing that I have before heard ascribed to usage.

In the case of Allston and others vs. Thompson, I think that the motion ought to be granted. In the case of Craig vs. Pinson, I think the motion ought to be dismissed.

Let us then consider what forms of conveyance were in use, prior to the Act of 1795, and whether witnesses were absolutely requisite to the validity of such forms. At Common Law, the forms of original conveyances were, “Feoffment,” ■“Gift,” “Grant,” “Lease,” “Exchange,” and “Partition.” And under the Statute of Uses, there arose the “Covenant to stand seised to uses,” “Bargain and Sale,” and “Lease and Release.” (See 2 Comm. 310, 329, 338; 4 Cruise Dig., 43, 48, 88, 102.) It is probable, however, that the most usual forms of conveyance adopted in South Carolina, previous to 1795, were “Lease and Release,” “Bargain and Sale,” “Covenant to stand seised to Uses,” “Grant” and “Lease” for terms of years. These are the conveyances we most frequently meet on record, in the Register of Mesne Conveyance office, until the Statute “to facilitate the conveyances of real estates” was passed. Witnesses were not necessary to any of these forms of conveyance. In support of this position the authorities are numerous and without contradiction, either by comment, or decision in England, or America. In 2 Comm. 307, it is said “the last requisite to the validity of a deed, is the attestation or execution of it in the presence of witnesses; though this is necessary, rather for preserving the evidence, than for constituting the essence of the deed.” In 4 Com. Dig. 378, (tit. Fait, B, 4,) it is laid down in broad terms, that witnesses are not essential to a deed; and several authorities are referred to, in support of this doctrine in the United States, by the Editor. (1 Serj. & Rawle, 72; 1 Haywood, 20,5.) In a note on the same page, it is stated that, “in the reign of Queen Elizabeth, deeds were often without witnesses.” In 4 Com. Dig. 36, it is said, “The eighth and last circumstance necessary to a deed, is the attestation of it by witnesses; .which is not a thing essential to a deed, itself, but only constitutes the evidence of its authenticity;” — and that “Deeds, in the reign of Queen Elizabeth, were often without witnesses. Mr. Justice Windham said he had seen several deeds, made in, Queen Elizabeth’s time, without witnesses.” This, too, it will be remembered, was long after the Statute of Uses, and has reference, therefore, as well to deeds under the Statute, as to those at Common Law, — to deeds of bargain and sale,, lease and release, as to feoffments, grants, exchanges, &c. In 1 Phillipps on Evidence, 420, it is laid down that, “in cases where there is no subscribing- witness on the deed, or where the subscribing witness denies having any knowledge of the execution,” &c., “the execution may be proved by proving the hand writing of the party to the deed.” In Perkins on Conveyancing, a book of high authority, as well as great learning of the Common Law, three things, and only three, are enumerated as “necessarily appertaining unto a deed; viz. writing, sealing, and delivery.” This writer no where intimates that witnesses are essential to the validity of a deed. In 2 Campbell N. P, R. 636, Lawrence, J., says, “If the attesting witness swears he did not see the deed executed, I think it is then to be treated as if there were no attesting witnesses, and evidence of the handwriting of the party is sufficient proof of its execution.” In a note to 2 Chitty’s Blackstone, 248, the learned annotator says, “It is not essential to the validity of a deed, in general, that it should be executed in the presence of a witness.” The requisites of a good deed are enumerated in Lord Coke’s 1st institute, (lib. 1, c. 5, sec. 40,) and nothing is said of subscribing witnesses. Had witnesses been necessary to the validity of a deed, it would have been so laid down by this’ learned oracle of the ,Common Law. The words of Lord Coke are “This word, deed, in the understanding of the Common Law, is an instrument written on parchment, or paper, whereunto ten things are necessarily incident; viz. 1st writing, 2nd. on parchment, or paper, 3d. a person able to contract, 4th. by a sufficient name, 5th. a person able to be contracted with, 6th by a sufficient name, 7th, a thing to be contracted for, 8th. apt words required by law, 9th. sealing, and 10th. delivery.” It is manifest then, that although the Act of 1795 requires two witnesses to the form therein prescribed for conveying lands, it does not invalidate, or interfere in any way with, the forms in use at Common Law, or under the Statute of Uses; and that witnesses are not necessary to the validity of a deed at Common Law, or under the Statute of Uses. It follows, then, as a necessary consequence, that the deed from the Deputy Marshall is good, as such, without witnesses : in other-words, — that if it be perfect, in every other respect, to convey land in South Carolina, it will not be rendered invalid by the want of subscribing witnesses. This leads us to consider whether the present deed is in accordance with the forms by which lands were conveyed at Common Law, and under the Statute of Uses. It will not be pretended that the deed now under consideration is deficient, unless for want of “apt words required by law.” All the other requisites enumerated by Lord Coke, it has. ■ What is understood in law, by “apt words” is, that the deed shall contain “words sufficient to specify the agreement, and bind the parties.” (2 Comm. 297.) “It is not absolutely necessary in law, to have all the formal parts that are usually laid down in deeds, so as there be sufficient words to declare1 clearly and legally the parties’ meaning.” (Idem. 298.) In 4 Cruise D. 24, it is laid down that the words of a deed “inust be sufficient to specify the agreement and bind the parties, legally and orderly set forth; that is, there must bé words sufficient to signify the terms and condition's of the agreement, and to bind the parties.” There can be no doubt that the present deed is a good one according to these rules. It does contain “words sufficient to specify the agreement,” “to declare clearly and legally the parties’ meaning,” to “signify the terms and conditions of the agreement, and to bind the parties.” But I can go further than this, and may, with propriety, say that the deed before the court contains exactly the' “formal and orderly parts” mentioned by Cruise and Blackstone. They are eight, viz. premises, habendum, tenendum, reddendum, condition, warranty, covenants and Conclusion. A deed may or may not contain all these formal and orderly parts, as the parties may determine. For instance,' the clause of warranty may be inserted, or left out. So may the red-dendum, the condition and the covenants'. (2 Comm. 299 and 304.) The deed now under consideration does contain the premises, habendum, tenendum and conclusion, which was all it should contain; for the Marshall could make no warranty, there was no condition annexed, and nothing reserved. If your Honors will refer to the old form of feoffment ixi 2 Comm. App., it will be seen that the present deed is very much after that form, with the exception of the memorandum of livery of seisin endorsed on the feoffment. The form prescribed by the Act of 1795, is called; in that Act, “a form or purport of a release.” The present deed is not very dissimilar to that form, and may, with the same propriety, be termed a release. But there can be no doubt that, as a form of bargain and sale, it is a good one. “A deed may be good, though it has not formal parts,” (4 Com. D. tit. Fait, E, 1.) The words bargain, and sell, are not necessary to be contained in the deed to make it a good conveyance by bargain and sale. The words, ‘alien and grant,’ will be as good; and so' will the words, “covenant to stand seized to the use of,” or “granted, demised, set and to farm let” (4 Cruise D. 89.) Now, if the deed from the Marshall is in accordance with the forms of conveyance, at common law and under the statute of uses, adopted in South Carolina before 1795, then it is a good deed, and is capable of passing land, notwithstand--ing the Act requiring two witnesses, and prescribing the form of conveyance. I will now notice the objection, that there was no livery of seisin accompanying this deed, without which no freehold estates could be conveyed at common law. However true the objection may be to deeds at common law, it has no application to those deeds of bargain and sale, lease and release,which have arisen under the statute of uses. Livery of seisin . is not necessary in those deeds, and has been dispensed with by St 27 Hen. 8, c. 19, transferring the. possession to the use. The words of this statute are, “Be it enacted that, where any person or persons,” &c. “shall happen to be seised,” &c.- “of any lands and tenements,” &c. “to the use, confidence or trust, of any other person,” &c. “by reason of any , bargain, sale, feoffment,” &c. “in every such case, all such persons,” &c. “that have, or shall hereafter have, any Such use, confidence,” &c. “shall from henceforth, stand and be seised, deemed and adjudged, in lawful seisin,” &c. “of and in the same;” &c. In commenting on this statute, Blackstone says that, “where a man covenants to stand seised of lands to the use of his child, the statute executes, at once, the estate; for the child, having acquired the use, is thereby put, at once, into corporal possession of the land, without" ever seeing it, by a kind of parliamentary magic.” And, again, in speaking of bargain and sale, he says, “and the same is said of conveyance by lease and release.” (2 Comm. 338, 9.) “ These are held,” says the commentator, “ to supply the place of livery of seisin ; and so, a conveyance by lease and release, is said to amount to a feoffment.” In Co. Lit. 48, note 3, it is said, “but since the introduction of uses and trusts, and the Statute of 27 H. 8, for transferring the possession to the use, the necessity of livery of seisin for passing a freehold in corporeal hereditaments, has been almost totally superseded, and, in consequence of it, the conveyance by feoffment is now very little in use.” “Before the statute of uses, equitable estates of freehold might be created through the medium of trusts without livery; and, by the operation of the statute,, legal estates of freeholds may now be created in the same way.” I hope I have now shewn, that livery of seisin was not necessary to convey the lands called for in the deed under consideration ; that this deed, being under the statute of uses, is good as a release, or bargain and sale, without livery of seisin. But I would further contend, if it were necessary, that it is a good deed, as a feoffment, although no livery of seisin be endorsed upon it. Livery of seisin may be presumed in law and equity, and should be, in this case. I refer to 12 Peters-dorff’s Abridg. 336. “A memorandum that livery of seisin was given, is usually endorsed on all ancient feoffments, but courts of law and equity will presume livery of seisin to have been given, though not endorsed on the deed, when the possession has gone according to the feoffment for a length of time. A court of equity will supply the want of livery of seisin, when a feoffment appears to have been made for a good or valuable consideration.” In 1 Bay R. 107, there is a case decided very similar to the present one. It was decided in 1790, five years before our statute prescribing the form of conveyance now in use. In that case, a deed had been executed, similar to the present one; and it was decided that “a bargain and sale is a good conveyance, under the statute of uses, to pass a fee, although no livery of seisin be made; so is a covenant to stand seized to bargainee’s use.” Judge Waties, in delivering the opinion of the court,says, “what shall be the effect of this deed, as a feoffment, bargain and sale, or covenant to stand seised! It would, perhaps, require much refinement to make it a good feoffment. Possession in deed, acquired in any way, might operate as a good livery of seisin under it, and, with the possession, it would be a good title.” (There was no possession in that case.) “But there is no need at all of a strained construction to make this a good deed. I consider it as a good bargain and sale. The consideration, in part, was executed, and is acknowledged on the face of the deed. The terms of it shew a plain intent to pass the estate. The deed, therefore, must stand,” &c. In a note to this case, the reporter says, “By an Act of the Legislature, since the determination of this case, a bargain and sale is declared to be a good deed to pass a fee, in all cases, without livery of seisin.” It would seem, from the above decision, that the Act of 1795 is nothing more than a declaratory Act, with the addition of the subscribing witnesses. The same deed of bargain and sale that would now pass lands under this statute, with subscribing witnesses, would have passed the same lands, before the enactment, without witnesses, and may still pass them without subscribing witnesses. This was not, perhaps, the first declaratory Act passed by our Legislature; nor has it been the last. In 1824, an Act was passed, declaring “that no words of limitation shall, hereafter, be necessary to convey an estate in fee simple, by devise,” &c. In 4 M’C. Rep, 442, 476, the court decided that the law was as declared in this Act, before the passing of the same, and that it was only declaratory. There is another argument in support of this deed, that might be urged. It is that the conveyance was made under an Act of Congress, and, although it may not be in conformity with the forms adopted in this State, it may yet be good. The Act of Congress is general, to all the marshals in the different States, requiring them to advertize and sell the lands that the owners had not paid the direct tax for, and directs them to make title to the lands they sell; but no form of conveyance is prescribed. The local laws of a State are not to control a constitutional law of Congress. If the deed be good under the Act of Congress, it must be valid under our State laws, no matter what be its form. But it may be submitted whether any title at all be necessary to sustain this action. The deed of the marshal is not conclusive of sale. The action may be sustained by proving the assessment, sale, &c., without any deed.