Underwood v. Campbell

| Superior Court of New Hampshire | Dec 15, 1843

Gilchrist, J.

The instrument referred to in this case cannot have the effect of an agreement to convey lands, because there is no consideration expressed in it. N. H. Laws 535, § 3, (Ed. of 1830;) Wain vs. Warlters, 5 East 10; Neelson vs. Sanborne, 2 N. H. Rep. 413. And parol evidence is not admissible to prove that the properly advanced by the tenant, as set forth in the brief statement, formed the consideration for the instrument. This point is settled by the case of Wain vs. Warlters, and the numerous decisions which have since been made in accordance with it.

We have held that an instrument cannot operate as a deed, under the act of February 10th, 1791, unless it be signed by two or more witnesses. Smith vs. Chamberlain, 2 N. H. Rep. 440; French vs. French, 3 N. H. Rep. 259. But it was held in the latter case, that a deed, attested by one witness only, may in certain cases operate as a covenant to stand seized, or as a bargain and sale, and so pass the estate. We have also held that since the passage of the act of June 29th, 1829, an instrument, attested by one witness only, cannot operate as a conveyance of land, even against the grantor and his heirs. Stone vs. Ashley, 13 N. H. Rep. 38. As the instrument in the present case bears the date of the 10th of September, 1828, its validity must be determined by the law as it existed prior to the passage of the act of 1829.

One of the requisites of a deed at common law, from the time of the Conquest, was a seal. Co. Litt. 35, b; Shep. Touch. 50. This is still absolutely necessary, for no written agreement is considered a deed unless it be sealed. 4 Cruise 28. Á seal is essential, in order that an instrument may operate as a conveyance under the Statute of Uses, 27 Hen. 8, ch. 10, which has been adopted in this state. French vs. French, 3 N. H. Rep. 234. When this act was passed, a bargain and sale of lands might be by parol; but at the same session the Statute of Enrolments was enacted, 27 Hen. 8, ch. 16, which required a bargain and sale to be by writing, sealed and enrolled. Roberts on Frauds 270; 4 Cruise 112. The act of 1791, in mentioning a conveyance of land by way of bargain and sale, speaks of a deed of bargain and sale. N. H. Laws 191, Ed. of 1815. There is nothing in the act which implies that land may be conveyed by a writing not under seal, and the question therefore remains to be determined by the rules of the common law applicable to it. It has been held that a deed, defective in law for want of a seal, might still avail in equity. Wadsworth vs. Wendell, 5 Johns. Ch. 224. But in the case before us the defect is a fatal one.

A bargain and sale requires a pecuniary consideration, though none need be expressed in the deed. 4 Cruise 110 ; Jackson vs. Fish, 10 Johns. 456. But even if the objection on account of the want of a seal did not.exist, the instrument could not operate as a covenant to stand seized ; for the only consideration mentioned in the case is a pecuniary consideration, which of itself would be a sufficient reason why it could not avail as a covenant to stand seized ; that mode of conveyance requiring for its support the consideration of love and affection, which does not appear to have existed in this case, even if it might be proved, although not expressed in the instrument. 4 Cruise 120 ; Rex vs. Scammonden, 3 T. R. 474 : 4 Kent 493.

As the demandant is entitled to one sixteenth part of the premises, the verdict for the tenant must be set aside, and there must be a

New trial.