And, finally, he states his approval of the draft in some Approval. such form as the following: "I have settled and do approve of this draft on behalf of Mr. subject to my notes in the margin." "I have resettled and do approve of this draft on behalf of Mr., subject to my notes in the margin." "I have resettled and do approve of this draft on behalf of the parties of the first and third parts in accordance with the instructions of the to my opinion in fold." day of -, 189, and subject He signs the approval, adding the date. The first two forms are those used when the draft is sent to the opposite party. Owing to the risk of oral instructions being misunderstood, it is a convenient practice in settling a draft from oral instructions to call special attention to the fact, as follows: "I have resettled and do approve of this draft on behalf of all parties, in accordance with the oral instructions given to me by Mr. in conference on the day Deed defined. CHAPTER IV. DEEDS (a). It is not very easy to define a deed. Coke states the requisites of a deed to be, "first, writing; secondly, in parchment or paper; thirdly, a person able to contract; fourthly, by a sufficient name; fifthly, a person able to be contracted with; sixthly, by a sufficient name; seventhly, a thing to be contracted for; eighthly, apt words required by law; ninthly, sealing; and tenthly, delivery." (Co. Lit. 35 b.) Again, he says, "a deed signifieth in the common. law an instrument consisting of three things, viz., writing, sealing, and delivery, comprehending a bargain between party and party." (Co. Lit. 171 b.) An interesting discussion as to what amounts to a deed will be found in Reg. v. Morton, L. R. 2 C. C. R. 22, where Bovill, C.J., says, "In some of the definitions given a deed is described as being something of the nature of a contract. But the term is clearly not confined to contracts. A charter of feoffment, for instance, is a deed: so is a gift or grant, a power of attorney, a release, or a disclaimer. I would go further, and say that any instrument delivered as a deed, and which either itself passes an interest or property, or is in affirmance or confirmation of something whereby an interest or property passes, is a deed. . . . Many documents under seal are not deeds, for instance, an award, though sealed" (b). (a) As to the form and execution of deeds, see Articles in 30 Sol. J., pp. 636, 651, 667. (b) Or a magistrate's warrant; per Parke, B., Chanter v. Johnson, 14 M. & W. 408. See further as to deeds generally, Cruise's Digest, vol. iv., Title xxxii., Deed, ch. i. ss. 16 et seq.; ib. ch. ii. ; and Shep. Touch. 50. SEALING. The authorities appear to be agreed that a deed must be written on parchment or paper, sealed, and delivered. Seal or 47 mark used In old times very few people could write, and accordingly most people, when they wished to signify their assent to in old any document, either put their mark to it in the form of a times. cross, as now done by the illiterate, or affixed a seal to it. The former plan appears to have been a practice among the Saxons, the latter among the Normans; and as, after the Conquest, the judges were Normans, they introduced the latter practice, i.e., that of using a seal, into this country (c). As, in old times, writing was used only for matters of importance, the fact of sealing a document remained, even after the art of writing had become common, an indication that the document was of importance. And, accordingly, to this day, a document under seal is considered in law of greater importance than one not under seal. The reader need hardly be reminded that it is necessary that the seal should have been affixed with the intention that the document should operate as a deed; that a seal affixed merely for the purpose of keeping the document secret, as in the case of a letter going through the post, will not render it a deed contrary to the wish of the person sealing it. In old times every man had his own distinctive seal, but in practice at present the seals are affixed by the law stationer, and only touched by the parties. Sometimes, indeed, in the case of a marriage settlement, some of the parties to the deed have a fancy for sealing it with their own seals. The solicitor witnessing the execution of such a deed will see that those people who use their own seals put them in the proper place, which, where the deed consists of more than one skin of parchment or sheet of paper, is on the strings that tie the different skins of parchment or sheets of paper together. The reason of this place being adopted for the seal appears to be the belief that it throws difficulty in the way of a fraudulent substitution of one skin for another. See Kemble, Cod. Diplom., I. pp. 90 et seq.; Pollock, Land Laws, p. 75. What amounts to delivery. Escrow. To constitute a seal neither wax, wafer, nor probably even an impression is requisite; merely touching the parchment with the seal or the end of a ruler is sufficient (d). There is no need to make use of any particular form in the delivery (Co. Lit. 36 a, 49 b; Smith v. Adkins, L. R.14 Eq. 402; Shep. Touch. 57, 58). The usual custom is to touch the seal and say, "I deliver this as my act and deed." But any word or sign showing an intention to deliver the instrument will do. Thus actual physical delivery (handing over) to one of the parties or his solicitor is sufficient; or saying to him "take this," "this will serve," or the like, will suffice (e). Merely throwing the deed on the table would not be a delivery, as the act would be equivocal; but throwing it on the table towards the other party, or allowing him to take it up, would clearly show the intention. In practice it often happens that a man delivers the deed in the presence of his own solicitor only, and possibly retains it in his own possession. The question whether this is intended to operate as an absolute delivery, or as a delivery to take effect on the performance of a condition, is entirely a matter of fact to be ascertained from all the surrounding circumstances (ƒ). When the deed is delivered to some person not a party to it (Co. Lit. 36 a) (g), to take effect in certain events, it is called an escrow. (Shep. Touch. 58) (h). The modern cases show that a deed may be an escrow although it was not expressly stated at the time of the delivery that the delivery was conditional (i), or although it was delivered to (d) Per Bovill, C.J., Re Sandilands, L. R. 6 C. P. 411; Sugden on Powers, 232. See Re Balkis Consolidated Co., 36 W. R. 392; National Provincial Bank of England v. Jackson, 33 Ch. D. 1. (e) Xenos v. Wickham, L. R. 2 H. L. 296, at p. 312. (f) Bowker v. Burdekin, 11 M. & W. 128; Xenos v. Wickham, L. R. 2 H. L. 296; Watkins v. ESCROW EXECUTION. the solicitor of the grantee (k), or to one of several grantees, provided that the intention that the delivery was conditional appears clearly. An example of a deed delivered as an escrow is where a person executes and delivers a deed to his solicitor to be exchanged against the purchase-money when paid by a purchaser, or against the counterpart of a lease when executed by the lessee. "It would be monstrous," says Romilly, M.R. (Walker v. Ware, &c., Railway Co., 35 Beav. 58), "for the purchaser to be allowed to say to the seller, 'You have executed the deed, and therefore I need not pay the purchase-money; and I have got the legal estate, and you must enforce payment of the purchase-money as best you can. His Honour was of opinion that in such a case the legal estate did not pass till the deed was handed over. In practice it would be a wise precaution for the solicitor, in cases where there is any serious doubt as to the ability of the purchaser, or as to the honesty of the intended lessee, to make his client deliver the deed as an escrow, to take effect as a deed upon the money being paid or the counterpart being delivered up; for Williams, J. (in Kidner v. Keith, 15 C. B. N. S. 40), says, "in the ordinary case of a deed executed, and left with the party's attorney, unless it is delivered to the attorney as an escrow not to be delivered until the consideration money is paid, or some other condition performed, it operates as a perfect deed." 49 A purchaser cannot insist on the vendor executing, i.e., Execution. sealing and delivering the conveyance in the presence of himself or his own solicitor; but if such a request be made, the vendor will act wisely in acceding to it, as the purchaser is entitled to have the execution attested by a person appointed by him, who may be his solicitor (C. A. 1881, s. 8; as to the law before 1882, see Viney v. Chaplin, 2 De G. & J. 468; Essex v. Daniell, L. R. 10 C. P. 538). Although at common law the attestation of a deed is Attesta (k) Watkins v. Nash, L. R. 20 Eq. 262; London Freehold, etc., Property Co. v. Suffield [1897], 2 tion. E.I.C. 4 |