of the act have conveyed by lease and release, and that every such conveyance should take effect as if it had been made by lease and release: provided always that every such deed should be chargeable with the same stamp duty as would have been chargeable if such conveyance had been made by lease and release. But it was shortly afterwards repealed, as from the 1st of October, 1845, by an act of 8 & 9 Vict. (8), which enacted (t), that after that day all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery; and that every deed which by force only of the enactment under notice shall be effectual as a grant shall be chargeable with the stamp duty with which the same deed would have been chargeable in case the same had been a release, founded on a lease or bargain and sale for a year, and also with the same stamp duty, (exclusive of progressive duty) with which such lease and bargain and sale for a year would have been chargeable. This clause, though apparently applicable rather to the transfer or conveyance of an existing interest, than the creation of a new and subordinate one, will, it is submitted, embrace a frechold interest by way of demise or lease. If so, there is reason to believe that a grant under the act of 8 & 9 Vict. c. 106, will often be substituted for a lease with livery. In the case of leases by corporations, there can be little doubt that the latter will fall into disuse. In other cases, the question of expense will be balanced against the inconvenience of livery. If livery can be made in person without trouble, the old form of lease with that solemnity will probably be adopted, as there will be a saving of the 35s. stamp on the power of attorney to make and receive livery; but where livery would have to be made by attorney, a grant under the act may be resorted to with advantage, the additional lease for a year stamp imposed by it being set-off against the stamp duty payable for the power of attorney. (8) 8 & 9 Vict. c. 106, s. 1. (1) Sect. 2. The operative words may then be "grant and demise," or "grant demise and lease." The 4th section of 8 & 9 Vict. c. 106, enacted that the word grant in a deed executed after the 1st of October, 1845, shall not imply any covenant in law in respect of any tenements or hereditaments except so far as it may by force of any act of parliament imply a covenant (u); but it is observable, that the effect of the word demise in creating a covenant for quiet enjoyment (a) is not taken away; though the omission is of no great practical moment, as the implied covenant arising on that word would yield to any qualifications contained in the express covenant for quiet enjoyment usually inserted in leases (y). If a feoffment be preferred, (not being a feoffment made under a custom by an infant,) it will be void at law unless evidenced by deed (z); though, without doubt, it would be good proof in equity of a contract for a lease. And it is to be noticed, that a feoffment made after the 1st of October, 1845, will not have any tortious operation (a). It seems at last to be decided that an indenture of lease for more than three years need not be signed, under the statute of frauds (b). (u) And see a similar provision in 7 & 8 Vict. c. 76. s. 6. Holder v. (x) Nokes's case, 4 Co. 80, b; S. C., nom. Nokes v. James, Cro. Eliz. 674. Taylor, Hob. 12. Deering v. Farrington, 1 Mod. 113. Andrew's case, Cro. Eliz. 214. Coleman v. Sherwyn, 1 Show. 79; S. C. 1 Salk. 137. Merrill. Frame, 4 Taunt. 329. Iggulden v. May, 9 Ves. 325. 330. Burnett v. Lynch, 5 Barn. & Cres. 589. 609; S. C. 8 Dow. & Ry. 368. (y) Nokes's case, sup. Deering v. Farrington, sup. Merrill v. Frame, sup. Hayes v. Bickerstaff, Vaugh. 118. 126. (2) 8 & 9 Vict. c. 106, s. 3. (a) 8 & 9 Vict. c. 106, s. 4. And see a similar provision in sect. 7 of 7 & 8 Vict. c. 76, now repealed. (b) Cooch v. Goodman, 2 Q. B. 580; S. C. 2 Ga. & Dav. 159. Aveline v. Whisson, 4 Man. & Gra. 801. CHAPTER II. OF THE DATE. THE date of the lease, which follows immediately after the style of the deed, where an indenture is adopted, but in deeds poll is inserted in the concluding clause, "In witness &c.," is either express or implied: the former is the day and year on which the deed purports to be made; the latter is the day of the delivery (a). A lease is always presumed to be delivered on the day on which it bears date (b); and when the days of the date and of the delivery are different, the instrument takes effect from the latter (c). And, in like manner, if there be no date, or an impossible one, as the 30th of February, it takes its date and operation from the delivery (d). But where there is a sensible date, the word date in other parts of the deed means the day of the date, and not of the delivery. Therefore, where by an indenture, dated the 24th (a) Anon. 3 Salk. 120. Arnote v. Bream, 6 Mod. 245; S. C., nom. Armote v. Bream, Holt, 212. (b) Stone v. Grubbam, 1 Rol. 3; S. C., but not S. P., 2 Bulstr. 217 or 225. The paging of this report is very incorrect throughout. Hall v. Denbigh, Cro. Eliz. 773. House v. Laxton, Cro. Eliz. 890. Knevytt v. Cope, 3 Leon. 266. Osbourn v. Rider, Cro. Jac. 135. Ofley v. Hicks, Cro. Jac. 263-4. Taylor v. Lenne, 2 Rol. 479. (c) Goddard's case, 2 Co. 5, a. Clayton's case, 5 Co. 1. Cony v. Chomley, 2 Leon. 117. Armitt, Armote, or Arnote, v. Breame, 1 Salk. 76; S.C. 6 Mod. 244; 2 Ld. Raym. 1076. 1082; Holt, 212. Doe dem. Cox v. Day, 10 (d) Goddard's case, sup. Armitt, Armote, or Arnote, sup. Cromwell v. Grunsden, or Grumsden, 2 Salk. 463; S. C. 1 Ld. Raym. 335; S. C., nom. Crumwell v. Grunsdale, 5 Mod. 281. Foot v. Berkley, 1 Vent. 83; S. C. 1 Lev. 234; 1 Sid. 460; 2 Keb. 322. 480. 514. 611. 654. 673; Cart. 147; O. Bridgm. by Bann. 527. Anon. 1 Mod. 180. Dy. 93, b. n. (28). Styles v. Wardle, Barn. & Cres. 908; S. C. 7 Dow. & Ry. 507. Co. Lit. 46, b. of December, 1822, certain premises were leased by the defendant to the plaintiff for ninety-seven years, subject to an agreement for an underlease to one R. B., and the defendant Covenanted that he would, within the space of twenty-four calendar months next after the date of the said indenture, procure the said R. B. to accept such underlease at a certain rent, and that in case R. B. would not accept it, the defendant would within one calendar month after the expiration of the said twenty-four calendar months, repay to the plaintiff' a certain sum; it was held, that the defendant was liable to pay the sum at the expiration of the twenty-five calendar months after the date of the indenture, although it was not in fact executed till the 8th of April, 1823, and consequently twenty-five calendar months had not elapsed since its execution (e). It is competent to either party to show that the delivery took place on a day different from the date (ƒ); although the tenant may have stated in his answer in a suit in chancery brought to impeach the lease, that it had been executed on the day on which it bore date (g). But a plaintiff declaring on a lease as bearing such a date, without an averment that it was delivered on a different day, cannot in a subsequent stage of the pleading avail himself of the fact of its not having been delivered on the day of its date (h). (e) Styles v. Wardle, 4 Barn. & Cres. 908; S. C. 7 Dow. & Ry. 507. (ƒ) Ofley v. Jack dem. Wheatley v. Creed, 2 Huds. & Br. 128. sup. (g) Jack dem. Wheatley v. Creed, (h) Hall v. Denbigh, Cro. Eliz. 773 Ofley v. Hicks, Cro. Jac. 263-4. CHAPTER III. OF THE PARTIES. THE indenture, if properly drawn, invariably designates all the parties, by their christian and surnames, their places of residence, particularizing the street, town, and county, or the village, parish, and county; and their title, profession, or trade. But, in accordance with the maxim, nihil facit error nominis cum de corpore constat, mistakes in the description of the parties, unless very gross, will not vitiate the deed. It will be sufficient, if the description, however imperfect, clearly distinguish the person described from all others (a). A departure from the practice of naming all the parties was formerly, and in certain cases noticed hereafter may still be, attended with serious consequences; for if a deed professing to be inter partes named only one of several (say three) lessees as a party, and afterwards granted the premises to the three, none but the party named could derive any benefit under it (b); unless the habendum expressly pointed out that they were to take in succession or remainder (c). So, on the other hand, one not a party, the indenture being inter partes, could not take advantage of the covenants. entered into by the lessee. Thus, where by indenture between J. Drummond of the first part, the dowager Baroness South (a) Shep. Touch. 233. (b) See ante, Vol. I, p. 683. And Gilby v. Copley, 3 Lev. 138. Grene, or Green, v. Edwards, 1 And. 258; S. C. Cro. Eliz. 216; 1 Leon. 218; Mo. 297. Wright dem. Plowden v. Cartwright, 1 Burr. 282. Lowther v. Kelly, 8 Mod. 115. Clement v. Henley, 2 Rol. Ab. 22. Faits, (F) 2. Salter v. Kidgly, Carth. 76; S. C. 1 Show. 58; Holt, 210. East Skidmore v. Vaudstevan, Cro. Eliz. 56; S. C., nom. Scudamore v. Vandenstene, 2 Inst. 673; 2 Rol, Ab. 22. Faits (F) 1. Storer v. Gordon, 3 Mau. & Selw. 308. 322. Barford v. Stuckey, 5 J. B. Mo. 23; S. C. 2 Brod. & Bing. 333. Gardner v. Lachlan, 8 Sim. 123. (c) Ante, Vol. I, P. 683. |