How to read an Old System Deed
What is a deed ?
By the dictionary a deed is
“an act done”.
By Osborn’s Concise Law Dictionary it is,
“A writing or instrument, written on paper or parchment, signed, sealed and delivered, to prove and testify the agreement of the parties whose deed it is (That is the people signing the deed)...”
In summary, a deed is a solemn declaration or statement of actions taken (the deed done) by a group of people in relation to the agreements between them. It can be on any matter, such as the disposal of land, trading agreements or the division of inheritance. It is a written account of events, actions or arrangements agreed on.
Note: An indenture; is a deed or document written in duplicate on a single piece of parchment. It is then cut in half ussually with a wavey line. That allowed people to recognise the two documents were the same.
A Deed Poll is a record of the actions taken by a single person. Usually it’s a declaration of a change of name or some other personal matter the world needs to know about. It can also be a declaration of possession of land.By the way, contrary to the popular saying in cannot be “written in stone” nor can it be “written in blood”. Blood would fade, in fact it must be written in dense black ink. It is interesting to note that it can be written on skin that has been prepared for writing on known as parchment or vellum. Vellum is the skin of young Cows while Parchment can be made from Lamb or goat.
Why they developed.
Before the general population could write, major acts such as the sale of land would be performed in public, in a ceremony that became known as a Livery of Session. It was held with public witnesses so everyone would know that the ownership had passed to a new person. This was good as long as the principals and the witness were around; but what of later years when the witness had died or moved. Legislative and practical needs drove the development of the deed which in essence is simply the written record of the acts performed by the parties to the deed. See under A brief history of Conveyancing.
The wording of a deed at first glance can be daunting and if you are not used to reading or writing cursive script, reading the old hand written deeds could be a challenge. The structure of a deed like the common law that underpinned it is steeped in precedent.
The meaning of the language has been determined by years of legal interpretation. While the wording attempts to cover “all the bases” so to speak, the language is comprehensible because it does, follow those precedents. That is, the basic wording has a precise meaning and follows the same basic principles, which are not all that hard to follow.
Don’t be put off. Once you understand it’s basic construction a deed it can be a most illuminating document for the historian as well as the lawyer. Once you have a grip on the basic interpretation and understand the effect of the words, the deed will open up a wealth of historical data revealing the real facts about the history of the land. For the Historian deeds would be considered as original source documents.
The parts of the deed (1)
At first glance it may be difficult to see how a deed has parts as it is intended to be seen as a whole. However once you start to read a deed the parts will start to fall into place. Most deeds have these elements in common.
Parties to the deed;
The recitals,these can be recognise by the preamble “whereas”.
For the historian the recitals are a great mine of information about the state of the title before the deed was made. Recitals are usually seen where the land is subject to inheritance or other form of settlement. They always appear where the vendor of the land held the land in some other capacity such as executor or trustee or where some problem with the title has occurred eg the vendor is in possession without a registered deed.
The purchase price.While the title may be correct without a price, the assumption is made that no title investigation has been undertaken if moneys did not exchange. Any conveyance without a valuable consideration is not a good root of title (See definitions).
The operative words.This is the critical part of any deed, these words tell you what the deed is doing and it usually starts with “now this deed witness”.
The words used have been determined by years of precedent, and in New South Wales by regulation under such acts as the Conveyancing Act. Let’s look at the operative words of the two main types of deeds, the conveyance and the mortgage;
The words of a conveyance will vary according to the age of the document, and the type of estate being sold.
These days the words of a conveyance are determined by the conveyanceing act, "doth hereby convey unto the said C.D. in fee simple"
Before the Conveyancing Act the most common form of words used was “grant bargain sell alien release and confirm”.
Other common additional words used are “enfeoff”, and “lease and release”. Each word has a different meaning based on the type of estate being sold, but they are used together as a sort of “catch all” in case there is any dispute as to which form of title was actually being sold.
The mortgage is different. Under old system the mortgagor (the owner) was required to sell his land, the operative words ussually say “conveys unto XXX the estate in fee simple”. However, if the loan was paid back, the mortgagee (the bank) is obliged to sell the land back. The owner retains what is called an equity of redemption.
The full wording is usually “conveys unto XXX the estate in fee simple subject to the equity of redemption”. See under A brief history of Conveyancing.
The land description.
The land description can appear in a number of places in the deed. The most common in old deeds was to describe the land immediately after the list of parties. The other common place is immediately after the operative words or in numerous cases in a schedule at the end of the deed.
The Habendum (3)
It is not uncommon for older deeds to have an Habendum, usually indicated by the words “to have and to hold”
eg “to have and to hold unto the purchaser in fee simple” and they usually reiterate the details of what is being sold. It is used to expand and if needed define the limitations on what is being sold. Sometimes the habendum is needed to indicate the limitations or conditions to the deed such as the term of the lease or the trusteeship the purchasers are taking under. It is also the place were other conditions such as the clauses defining the mortgage or lease conditions will appear.
There are four standard covenants.
- That the vendor is the beneficial owner and has good right to convey,
- That the purchase will be entitled to the quiet enjoyment of the land,
- that land is unencumbered and
- finally the vendor undertakes to execute any documents necessary to make good the conveyance. These standard covenants are now proscribed in the NSW Conveyancing Act 1900.
Be aware, the habendum is where you may find some real covenants such as fencing and where any easements or rights of way that may be created will be found.
While covernants usually appear at the end of the deed, they may appear anywhere including the land description.
Signed Sealed and Delivered.
Most people have heard the term. It’s usually used to indicate the completion or finalisation of something. This area of the deed is known as the “testimonium” and is usually indicated by the words “in witness thereof XXX has” and or “Signed Sealed and Delivered by” followed with the signatures of the parties. The term has its origins in how a deed is executed or authenticated.
SignaturesGenerally to be properly executed a deed must be signed by all parties to the deed. It is now unusual for a deed to be sealed unless the party is a corporation. If a party to the deed cannot write a mark, usually an X is used and a statement made such as “XXX his mark”.
Witnesses.The signatures are usually witnessed or “attested to” by someone not a party to the deed. Where a deed is executed by a person not a party to the deed some explanation should be given usually, its statement like YYY acts as solicitor for XXX. Also a party can appoint a person to act for them by way of a Power of Attorney. The number of the power is usually stated. For the historian, powers of attorney could be of interest as it may indicate other developments such as incapacity or a long term residence overseas.
SealingThe use of a seal arose in the middle ages as a way of allowing people of stature who were somewhat illiterate to authenticate documents and for those documents to be recognised through the seal as being executed by that person. The seal was usually came in the form of a ring with a symbol on it. The symbol was listed and could only be used by the owner. It became common practice for institutions and holders of a Government Office to use a seal.
DeliveryTo quote Helmore (2) "Delivery is essential to the validity of the deed". Generally it is the passing of the physicl deed of conveyance to the new owner. The deed "takes effect from delivery" however the delivery is assumed to be the date of the deed.
Helmore also notes that a deed can be delivered "subject to conditions" such as payment of the purchase price. During that time the deed is said to be held "in escrow". Blackstone the medival compler of English Law defined escrow as a scrowl (scroll) or writing, to interpret Blackstone; the deed is held as a piece of writting until the conditions of release are meet.