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footing of this agreement, and not of the policy. But it may be shown by evidence and circumstances, that it was intended by the insurers to vary the agreement, and propose a different policy to the insured, and this was understood by the insured, and the policy so accepted.

SECTION VII.

INSURANCE AGAINST DISEASE, AND AGAINST DISHONESTY OF SERVANTS.

Of late years, both of these forms of insurance have come into practice; but not so long or so extensively as to require that we should speak of them at length. In general it must be truc, that the principles already stated as those of insurance against marine peril, or fire, or death, must apply to these other -and indeed to all other forms of insurance, excepting so far as they may be qualified by the nature of the contract.

From one interesting case which has occurred in England, it seems that, when an application is made for insurance, or guaranty, against the fraud or misconduct of an agent, questions are proposed, as we should expect, which are calculated to call forth all the various facts illustrative of the character of the agent, and all which could assist in estimating the probability of his fidelity and discretion. But a declaration of the applicant as to the course or conduct he was to pursue, was distinguished from a warranty. He may recover on the policy, although he changes his course, provided the declaration was honest when made, and the change of conduct was also in good faith. In this case the application was for insurance of the fidelity of the secretary of an institution. There was a question as to when, and how often, the accounts of the secretary would be balanced and closed; and the applicant answered that these accounts would be examined by the finiancial committee once a fortnight. A loss ensued from the dishonesty of the secretary; and it appeared to have been made possible by the neglect of the committee or the directors to examine his accounts in the manner stated in the policy. But the insurers were held, on the ground that there was no warranty.

CHAPTER XXIV.

OF DEEDS CONVEYING LAND.

SECTION I.

WHAT IS ESSENTIAL TO SUCH DEEDS.

By the old law, no instrument was considered made until it was sealed; then it was thought to be done, and the word deed, which literally means only something done, was given to every written instrument to which a seal was affixed; and that is the legal meaning now. But the common meaning of the word is an instrument for the sale of lands; and it is of this that we would now treat.

In our first chapter, we have given the reasons why our remarks or directions on this subject must be only brief and general.

By the statutes and usage of this country, generally, no lands can be transferred excepting by a deed, which is signed, sealed, acknowledged, delivered, and recorded.

What the deed should be, that is, in what words it should be expressed, we can best show by the forms in the Appendix, and do not propose to say more about it than this. It is not safe to depart from forms, and established phrases, which have passed before the courts so often, that their exact meaning is certainly known. There are things which seem to be, and perhaps are, vain repetitions; and for the usual words it may be thought that others of the same or better meaning may be substituted. Such changes may be made, perhaps, without detriment; but perhaps, also, with ruinous results; and it is not wise to run the risk.

It should be signed; and this means, properly, that the seller or grantor should write his name in the usual way, in the proper place, and with ink. If the grantor cannot write his name, he may merely make his mark. It has been said that

writing with a lead pencil is enough, but it would not be safe to trust to it. The name of the grantee should be distinctly written in the proper place, in ink. Sometimes, in our large cities, an agent buys land for a principal who does not wish to be known, and the agent's name is inserted as grantee, in pencil, and the deed is so executed and acknowledged and delivered; and some time afterwards the agent rubs his name out, and writes the name of his principal, the actual buyer, instead. But this is a very unsafe and reprehensible practice, and the deed cannot be considered satisfactory.

The deed of a corporation must be signed by an agent or attorney, who should be careful to execute it in the manner indicated in some of the forms in the Appendix. In one case, in Massachusetts, where a deed was written throughout as the deed of a corporation, and their treasurer signed it thus: "In witness whereof, I, the said C. C., in behalf of the said company, and as their treasurer, have hereunto set my hand and seal," it was held that this was the deed of the treasurer, and not the deed of the corporation, and did not transfer the lands. This is an extreme case, and the law might not always be applied with so much severity; but it is best not to incur any such risk. So, too, the rule that a person who is to be authorized to affix the seal of another should be authorized under the scal of the principal, is so general, that, although it has important exceptions, it should always be observed.

The seal is properly a piece of paper wafered on, or sealingwax pressed on. In the New England States generally, and in New York, nothing else satisfies the legal requirement of a scal. In the Southern and Western States generally, a scrawl, intended for a seal, usually made by writing the word "scal” within a square or diamond, is regarded in law as a seal. there be but one seal on an instrument, and many parties, all of whom should seal it, this seal will be taken generally for the scal of each one; although, properly, each signer should put a scal against his own name.

If

The deed should be delivered. If a man makes a deed, and acknowledges it, and keeps it in his possession, and dies, the deed has no effect whatever; no more than if the grantor had put it in the fire. Even where it was recorded, and then taken

back by the grantor and kept by him, with words going to show that the grantor did not wish the grantee to know of it, it was held not to have been delivered. But there are no especial words or form necessary for delivery. If the deed, in any way whatever, gets into the possession of the grantee, with the knowledge and consent of the grantor, it is a delivery.

The grantor may deliver it by his agent, and it may be delivered to the agent of the grantee, authorized by him to receive it. Moreover, the law permits a kind of conditional delivery. Thus, the grantor may deliver the deed to a third person, to be delivered by him to the grantee on a certain condition, or when a certain thing is done; and when that condition is performed, or the thing is done, the deed belongs to the grantee, and takes effect in the same way as if it had been delivered to him personally.

So the grantor may put the deed in the hands of the third person, with directions to give it to the grantee after the death of the grantor, provided the grantor does not reclaim it in the mean time. Then the grantor can reclaim it whenever he will, which he cannot do after he has delivered it to the grantee; but if he does not reclaim it during his life, at his death it becomes the property of the grantee, and the law now considers that it was delivered to him when first delivered to that third party. So that deed is good even against creditors, provided that the grantor was perfectly solvent when he put the deed in the hands of the third party, and acted altogether in good faith. If a deed to a married woman be delivered either to her or to her husband, it is sufficient.

As there must be delivery to the grantee, or to some one for him, so there must be assent and acceptance on his part. The law will help any evidence tending to show such assent, by presuming in favor of the grantee's assent if the deed be wholly and only favorable to him. But if there is money to be paid by him, or anything important to be done if he accept the deed, this presumption is much feebler.

It is usual and proper that the execution of the deed should be attested by witnesses. In many of our States two witnesses are required by statute. In New York, one is enough. In the greater number, witnesses are not absolutely required by stat

utes, nor by strict law of any kind; but even there it is usual and safer to have them.

The witness should see the party sign; but if the deed is signed near him, and is immediately brought to him by the grantor, who tells him that is his signature, and asks him to witness, this would be sufficient in law.

It is desirable that witnesses, when called on to testify, should remember the signature, sealing, &c.; but it is sufficient in law that they are certain of their handwriting, and can declare under oath that they should not have attested the execution and delivery if they had not seen it. If witnesses are dead, proof of their handwriting is sufficient; and if this cannot be offered, then proof of the handwriting of the grantor is enough. If witnesses attest the signing, sealing, and delivery, in the common form, proof of their handwriting, in case of their death or absence, is proof of the execution and delivery of the deed.

The witness should, properly, be of sufficient age and understanding, but may be a minor. He should have no interest in the deed. Hence a wife is not a proper witness of a deed to her husband. But the courts, and especially a court of equity, would seldom permit a deed to be avoided through the incompetence of a witness, if there were no suspicion of wrong.

So a deed must be acknowledged. For this purpose the grantor must go before a person qualified by law to receive acknowledgments, and exhibit the deed to him, and acknowledge it as his free act and deed; and the person receiving the acknowledgment then certifies that he has received this acknowledgment, under the proper date.

In general an acknowledgment may be made before any justice of the peace, or a commissioner appointed for the State in which the land to be conveyed is situated, if the deed is executed in another State, or any consul or consular agent of the United States if the deed is executed in a foreign country. This acknowledgment must be made, or the deed cannot be recorded. But it seems to be law, that, if the deed gets on record, neither a defect in the acknowledgment, nor a total want of acknowledgment, avoids it; it would not, however, be prudent to act on this supposition.

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