Co. 2.4.5. 5 H. 7. 26. Plow. 491.

Dyer, 307. 315. & Fait. 87. 63.

Fitz. Feoffments

95

force and is good still; for a man may grant two
acres upon condition to re-enter into one of them.
If it be intended that the whole deed shall be void,
the best way is to use these words, "then these
presents, and every thing therein contained, shall
be utterly void."

what time a deed

tion: and when it shall begin to take effect.

All deeds [in point of obligatory force, with a 8. How and to view to the priority of title] do take effect from, shall have rela and therefore have relation to, the time, not of their date, but of their delivery: and this is always presumed to be the time of their date, unless the contrary do appear. [The first branch of the proposition is, the rule of law: the second branch is, the rule of evidence. Proof of the time of delivery, renders the date immaterial. But the date cannot controul the evidence of the time of actual delivery.] And hence it is, that if a statute be acknowledged the 26th day of May, and the conusee make a release of all demands dated the 25th day, and deliver it the 27th day; by this release the statute is discharged [infra, 71.] And that if the defeasance of a statute do bear date before, and the delivery of it be after, the statute; the conusor may show this [by proving the time of delivery,] and take advantage of it in avoidance of the statute. And that if a writing be dated in the minority of an infant, and be sealed and delivered by him when he is of full age, this is a good deed and will bind him. And that if a release be supposed to be made by a husband, to bar a duty due to the wife, and it be dated during the coverture, but in truth it is sealed and delivered by the husband before the coverture [viz. before he had any rights as husband ;) this shall not bar the wife : the time therefore of delivery of a deed is material in all these and the like cases, and this is always to be tried by a jury. And hence it is also, that if Faits, Barre. 147. the next presentation to a church be granted to two several persons, by several deeds, of several dates, and the deed that beareth the last date be first delivered; in this case, he to whom this deed is made, shall have the presentation, and not the other, whose deed albeit it be dated first, yet is delivered last. And hence it is also, that if a lease be made for years, to begin from henceforth, or à confectione presentium, or a die confectionis; this lease shall be said to begin from the time of the

Fitz. Feoff. &

Relation.

*P. 73.

first delivery, and not from the time of the date.
[And if there be a power to lease in possession, or
there be a freehold lease, and the habendum in
such lease, or in a lease under the power be to hold
from a day to come, and the lease under the
power be delivered, or there be livery under the
freehold lease, after the day for commencement,
the lease will be good. But in a limitation for
years, from the day of the date, the computation,
except under special circumstances, is from the day
of the date of the deed, without any regard to the
time of delivery; and, according to many cases, a
lease to commence from the day of the date, ex-
cludes the day of making; but according to Pugh
v. The Duke of Leeds, Cowp. 714, it will depend
on the intention, whether these words shall be con-
strued exclusive or inclusive.]

18 H. 6.

27 H. 6. 7. Plow. 344.

And where deeds have a kind of double delivery, Co. 3. 35-36. as in case of a delivery as an escrow, there they shall take effect from, and have relation to, the time of the first delivery, or not, as circumstances may require, and ut res valeat: for if relation may hurt, and for some cause make void the deed, (as in some cases it may,) there it shall not relate. But if relation may help it, as in case where a feme sole deliver an escrow, and before the second delivery she is married, or dieth, in this case, if there were not a relation, the deed would be void, and therefore in this case it shall relate (57). So if one disseise me of two acres of land in D., and I release to him all my right in my lands in D., and deliver it to an estranger as an escrow, &c. until a time, and before that time he disseise me of another acre there; in this case this release shall not by relation extend to this other acre to bar me * of that also. [The relation depends on the nature of the transaction, and the presumable intention of the parties. In point of title (admitting the parties who are grantors are competent as to ownership and free from disability,) the deed will take effect from the first delivery, so as to overreach all intermediate encumbrances.] But as to collateral acts, there shall be no relation at all in

(57) See accordingly Jennings v. Bragg, Cro. Eliz. 446. So also it is of a deed of feoffment, and letter of attorney therein to make livery, by a man sanæ memoriæ, which is delivered by the attorney when the feoffor is non compos mentis; yet it is good, because it hath relation to the authority before.

this case. And therefore if the obligee release
before the second delivery, the release is void, and
will not bar the party obligee of the fruit of his
obligation (58). [It should seem that this inchoate
or imperfect obligation might be released by appro-
priate language. If it be not released as an obli-
gation, the reason is, because, in fact, there is not
any obligation till the second delivery. But, at
this day, it would probably be decided, that the
release, even by these inartificial terms, was effec-
tual.]

Co. 10. 92.

super Lit. 267. 317. 225. 231.

If a man, that is party or privy in estate or interest, or one that doth justify in the right of one $74 Lit. Sect. that is such a party or privy, shall plead a deed in

375

[B. N P.

9. When & where shown in court. And how long it

a deed must be

shall abide there.

any court; although he claim but parcel of the And who may Ch. Evidence.] original estate, yet in this case, he must show the take advantage of

original deed to the court; and the reason of this
is, to the end that the legal part of the deed (the
trial whereof belongeth to the judges) may approve
itself; i. e. that it may be seen whether the com-
position of words be sufficient in law or not; and
then that it may appear whether the estate be with
condition, limitation, or with power of revocation,
&c. to the end that if there be any such thing in it,
and there be no other part of it, the other party
may take advantage of it; and then that it may
appear to be without rasure, or interlining, and the
like; and also that it may appear to be well sealed
and delivered, (the trial whereof doth now belong
to the country.) (To this general rule there is an
exception. When the deed is lost, or is in the
hands of the adverse party; under these and the
like circumstances, the party may aver the loss of
the deed, or the possession by the adverse party,
as a reason for not making the profert. So, in
case of rights depending on presumable releases,
&c. the practice now is to plead such a release,
&c. and to aver that it is lost, and to go before
the jury to try the facts on which the presumption
is grounded.) But strangers in estate, that are
neither parties nor privies, shall not be compelled

to show the deed, though they make use of it (59).

(58) In what cases subsequent acts shall bind by reason of their relation to precedent ones. See Vin. Abr. Deeds (O.) Relation (E.) Com. Dig. Bargain and Sale (B. 9.) Confirmation (D. 5.)

(59) See fully in what cases it is necessary to show the deed or not. Com. Dig. Pleader (O.) (P.) Wils. Rep. 1 vol. part 1. p. 121. 2 vol. p. 1. Vin. Abr. Faits (M. a.) But in cases of great and notorious extremity, which have occasioned the destruction of the deed, as by

Dyer, 315. 12 H. 6. 1. Co. 2. 4, 5.

And when a deed is thus showed in court, it must
remain in that court, all the term wherein it is
showed, in the custody of the custos brevium; [on
a profert, the practice now is to give a copy,] and at
the end of the term, if the deed be not denied,
the law doth adjudge the possession of the deed in
him to whom it doth belong. But if the deed
be denied, then it is to be kept there until it be
determined. Also when a deed is showed in
court, the adverse party may take any advantage
by it that it will afford him; as if a feoffment be
made by deed poll on condition, and the feoffee
doth break the condition, and the feoffor doth
enter, and the feoffee doth sue him, and makes his
title by that deed, the feoffee may take advantage
of the condition [by pleading it.]

10. Where one

may say his deed was delivered at

another time, or

Any man that hath occasion to use or plead a deed, may set forth the delivery thereof to be at any time [before or after the date of the deed [by averring the time of delivery;] and in some cases he must do so, if he will have any advantage by it, [since in the absence of such averment the opposite party might demur.) As if he plead a release to an obligation, and it [the release] beareth date before the obligation; in this case he must aver, that it [the release] was delivered after [the obligation, or show the error in the date of the obligation, or it (the release] will not avail him. But a man may not, in pleading, set forth the delivery of a deed to be before the date of the deed. [Why not? The text proceeds on a mistake of law. 2 Rep. 5.] And yet if it be so that a deed be dated after the time of the delivery of it, the deed is good; and therefore if he that doth use such a deed, do plead and set it forth as a deed made before the time of the delivery, [read as bearing date before the day on which the deed is delivered. Goddard's case, 2 Rep. 5.] and the party that made it plead Non est factum to the deed, a jury upon the trial may find the truth of the case; but Estoppel. if he by his pleading set forth the deed to be delivered before the time of the date, then the jury

is concluded as, well * as the party himself, [to find *P. 74.
contrary to that fact;] for a jury is estopped to
find any thing contrary to that which is apparently
admitted in the record. In debt brought by an
executor, the defendant pleaded the release of the
testator, which did bear date after the death of the
testator; but he did aver the delivery of it in the
life-time of the testator, and the court did not allow
of this plea. (The law is so stated in 2 Co. 5,
Goddard's case, and the court agreed to it; but as
it is admitted that such a release is good, there
seems no reason for over-ruling the plea, since the
plea puts the material fact of the case in issue.
At this day such plea would, it is apprehended, be
allowed; for the date of a deed is not an estoppel
against stating and proving the time of delivery.
The averment of the time of delivery is perfectly
consistent with the statement, that by indenture
bearing date, &c. But Goddard's case proves that
such special declaration is not necessary, since the
jury may find the fact, and of course it admits of
proof. The proper way is to plead the deed, as
bearing date, &c.: with an averment, if the oсса-
sion requires it, of the time of delivery. But if,
in describing dates, there be a material error, the
deed, when produced, will not support the issue;
and therefore a deed, bearing date the 1st of Ja-
nuary, cannot be given in evidence to support an
issue or a declaration, which describes the deed as
bearing date the 2d of January. And yet in God-
dard's case, 2 Co. 5, it is said, that the mistaking
of the date of a deed will not hurt, upon a plea of
non est factum pleaded; but there is nothing in
that case which warrants this general conclusion,
and it is in opposition to the rules of evidence: for
as far as the court or jury can judge, the bond
produced in evidence may be, and apparently, is a
different instrument from the deed pleaded. But
this objection does not exist when a deed is
pleaded as bearing date (for that is the fact) on one
day, and as first delivered on another day; for in
such case the issue is on the time of delivery, and
not on the apparent date.]

Sometimes antiquity added the place where the
deeds were made, as datum apud B. and this was
in disadvantage of him to whom the deed was
made; for if the deed be in general, and without this

N