$142. Formal Requisites of Deeds.-A deed may be wholly in writing or wholly printed, or partly in writing and partly printed. The instrument need not recite that the maker has affixed his seal to it. Moreover, it is not necessary that it should be executed in the presence of, or be attested by a witness. Probably the written signature which is so commonly affixed to this formal document as means of identifying the seal is not required by the common law. The one mark of a deed which distinguishes its appearance from that of other writings is the seal.

In the old days a seal on a writing consisted of wax impressed by the seal of the party executing the instrument. At the present time, however, this is deemed unduly cumbersome, and it is much more common merely to attach a gummed wafer to the paper. In the case of a corporation, the prevailing practice is to make an impression in the substance of the paper with the distinctive corporation seal, although it may adopt such seal as it pleases, if it is sufficient to satisfy the requirements for the seal of a natural person.

The common-law notion of what constitutes a seal has been markedly attenuated in many jurisdictions. In a number of states, usually as the result of legislation, a scroll, or any mark with the pen, if so intended, may serve for a seal. In these states the seal usually consists of nothing more on the paper than a printed impression purporting to be a seal; for instance, a printed circle containing the word "seal," or the letters "L.S.," (locus sigilli). Of all judicial modifications of the original notion of what constitutes a seal, the most striking decision is one which held that a single horizontal dash less than one-eighth of an inch long would answer for a seal, the context and circumstances showing that it was so intended. In such jurisdictions

"The rule is otherwise in Virginia and in a few other states. Moreover, it is held in several jurisdictions that any instrument to which a mere scroll has been affixed by way of a seal must purport to be sealed in order to constitute it a deed.

"In some states, however, statutes require the attestation of deeds which are used for the purpose of conveying land.

Hackers' Appeal (1888), 121 Pa. 192. Of course no one should act on the assumption that he may safely use one of these novel modes of sealing, without first being sure of the law of his own state.

the private seal is no longer distinctive, and where this is true it may well be asked whether it would not be wise to do away with the use of private seals and abolish the distinction between sealed and unsealed writings.

In some jurisdictions individual, but not corporate, seals. have been entirely abolished; other states, while not doing away altogether with the individual seal, have abolished the requirement of a seal on a conveyance of real estate.

§143. Delivery of a Writing.-According to a well-known formula, no document is effective as a valid deed unless it be "signed, sealed, and delivered." The formula is misleading in that a signature is probably not necessary, although a cautious person will prefer to follow the established practice and hence will sign his instruments under seal.

The sealing of a deed need not be the act of the one executing the instrument. If an adequate seal has actually been attached to the paper, no matter by whom, it may be adopted by the maker of the instrument as his own seal. As a rule, an intention to adopt the previously affixed seal is not so commonly expressed in words as by conduct. Whenever one of several parties has signed and attached his seal to an instrument which recites that the parties to it have affixed their seals, the decisions are almost unanimous to the effect that all subsequent signers presumptively adopt the seal of the first one as their own.

As regards the requirement of delivery, the existence of a declared intention on the part of the maker that the sealed writing is to be presently binding on him is the decisive consideration. All courts recognize, of course, that there must be some appropriate expression of such an intention. Whenever, as frequently happens, the maker transfers the physical possession of the instrument to the benefited party or to the latter's agent, and there is nothing to indicate an intention by him to retain dominion over the deed, his act of handing over the docu

'Alaska, Arizona, Arkansas, California, Idaho, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, South Dakota, Tennessee, Texas, Utah, and Washington.

'Alabama, Colorado, Georgia, New York, Rhode Island.

ment constitutes delivery. He may also manifest his intention. that the deed shall become immediately operative by making a manual delivery of it to a third party for the benefit of the grantee or obligee. But may he also make a legal delivery without a physical delivery of the instrument to anyone? English law unquestionably permits a delivery "by acts without words, or words without acts, or both," but the English doctrine is not given the unanimous support of all American authorities, some of which hold that there is no delivery unless the maker actually relinquishes the control over the instrument.

Willingness on the part of the grantee or obligee to receive the deed is not at all essential to its validity, according to the English conception of a deed. Nearly all American courts, however, insist upon the necessity of acceptance by the grantee or obligee, and hold that until the instrument has been accepted it is merely inchoate. An unswerving insistence on the requirement of concurrent action by both interested parties obviously leads to an unsatisfactory result in certain cases in which a deed is intended as a conveyance of property by way of gift. Most of the American courts, therefore, do not require an actual acceptance in the case of a deed which confers a benefit. They profess holding that conclusively to presume an acceptance in such a case, which is, of course, merely a veiled way of making an exception to their general rule. In connection with business. dealings, the requirement of acceptance is of little significance, inasmuch as business transactions, no matter in what form they are embodied, rest upon mutuality of assent.

$144. Characteristics of Contracts Under Seal.-At common law obligations under seal possess a validity superior to those embodied in unsealed writings. The ceremonial mode of incurring an obligation by the execution of a deed is attended by certain peculiar consequences. Unsuspected legal consequences are especially apt to arise in those cases in which the contract is a printed form of agreement with the letters "L.S." stamped upon it.

1. When the parol evidence rule was first established it applied only to sealed instruments, and, of course, it still applies

to them as well as to unsealed written agreements. There are, however, several distinctions which should be noted. It will be remembered that if an unsealed writing appears on its face to be an incomplete statement of the agreement, the matter in writing, though conclusive, is not exclusive; that is to say, its terms may be freely supplemented by the introduction of extrinsic evidence. On the other hand, however, no contract by deed which is incomplete on its face can be said to be under seal, although, of course, a new delivery of the instrument after the necessary additional terms have been incorporated in it will make the instrument binding in its altered form.

2. If an unsealed written agreement is delivered upon the condition that the agreement is not to take effect until the happening of some event or the fulfilment of a certain condition, the law in all cases will give effect to the intention of the parties. With respect to an instrument under seal, the law will not in every case effectuate the maker's declared intention, that the deed shall have no effect until a condition has been fulfilled. If the maker deposits his deed with a third person, who is to deliver it to the benefited party only upon the performance of a specified condition (such as the payment of money), the instrument is not a deed, but only a mere escrow, until the condition has been fulfilled. On the other hand, however, most of the authorities in this country hold that a deed cannot be delivered in escrow to the obligee or grantee. The rule that placing the instrument in the hands of the party to be benefited necessarily constitutes an absolute delivery and makes the deed binding, grew up at a time when the lawful possession of a deed by the benefited party was regarded as a fact of almost sacred significance. From the modern viewpoint such a technical doctrine is difficult to defend on principle, except possibly when it is limited to deeds conveying realty, although it is undeniable, of course, that to permit a condition to be annexed to a delivery of a deed when made to the obligee himself leaves "the very essence of the transaction to depend on the memory and truth of the bystanders."'"

1Ordinary of N. J. v. Thatcher (1879), 41 N. J. Law 403, 410, per Beasley, C. J.

3. Any agreement evidenced by an unsealed writing may be rescinded by a subsequent oral agreement and may also, except insofar as the Statute of Frauds is applicable, be modified by word of mouth or any other so-called parol evidence. According to the original common-law rule, however, a deed cannot be varied, rescinded, or discharged except by deed, there being an ancient maxim that every obligation under seal must be dissolved in the same manner in which it was created. In the course of time, however, the rule forbidding modification, rescission, and discharge of sealed contracts by subsequent parol agreements became overlaid with certain modifications and exceptions. These modern departures from the original technical rule are naturally not uniform in all states, and in a few jurisdictions a distinction is drawn between cases at law and those in equity.

4. The rules permitting the admission of extrinsic evidence to interpret an ordinary written agreement and to identify the parties to it also apply to deeds, except in one case. "Where a contract is made by deed, under seal, on technical grounds, no one but a party to the deed is liable to be sued upon it, and, therefore, if made by an attorney or agent, it must be made in the name of the principal, in order that he may be a party, because otherwise he is not bound by it.

992

5. The loss or destruction or alteration of a deed in early times entailed a forfeiture. This follows logically enough from the common-law view that the document is the obligation itself, and not merely evidence of it, as in the case of an ordinary written agreement. Hence, when, as in one case, rats ate off the wax it was held that the instrument and the obligation were both gone. The obligation was regarded as "bound so indissolubly to the substance of the document that the soul perished with the body when the latter was destroyed or changed in its identity for any cause." Equity, however, early gave relief against the hardship resulting from the innocent loss or destruction or alteration of a deed. In modern times the common-law courts in

C. J.

Huntington v. Knox (1851), 7 Cush. (Mass.) 371, 374, per Shaw, 'Bacon v. Hooker (1901), 177 Mass. 335, 337, per Holmes, C. J.