DEEDS 1. Forms of deeds in general use.—The instru uient by which immediate title to land is transferred is called a deed. There are three forms of deeds in general use, known respectively as bargain and sale deed, full covenant and warranty deed, and quit claim deed. The law does not require that a deed be worded in any particular manner, but a statute has been enacted in New York giving a short form of deed containing all necessary elements clearly ex pressed. The statutory short form of bargain and sale deed follows: This deed contains the substance of bargain and sale deeds in use in most jurisdictions and the com ments made apply equally to them.
2. Indenture, date and parties.—The expression "this indenture" is a relic of the ancient custom of preparing instruments in duplicate on the same sheet, and then tearing them apart. The ragged edges or indentations when brought together helped to prove that the instrument was authentic. Formal instru ments are now frequently called indentures.
The date is not essential to a deed but is merely a convenient memorandum. If nothing can be found to the contrary it is assumed that the deed was exe cuted and delivered on the day of its date.
The parties in the deed reproduced are designated as party of the first part and party of the second part. The parties are usually Down as "grantor" and "grantee." The grantor should, of course, be a person considered as fully competent of entering into a formal contract.
3. is no legal necessity for making reference in the deed to the consideration given for the conveyance, but it is advisable to do so, as the burden of proving that no consideration was given then passes to anyone attacking the instru ment. While the full purchase price may be stated if the parties wish it, frequently the consideration stated is merely nominal; that is, it may be men tioned as "one dollar" or "one dollar and other val uable considerations" or "one hundred dollars and other valuable considerations." In dealing with fiduciaries, it is important that the full consideration be stated in the deed, since fidu ciaries are generally without authority to convey property committed to their charge, except for a val uable consideration, usually money. If, for some rea son, it is not desired to make public the amount of consideration paid, an agreement regarding it, or a receipt for its payment, executed by the fiduciary in recordable form, should be obtained. If at any time the title is questioned because the deed does not set forth the consideration, the separate instrument showing the payment may be recorded in support of it.
The consideration for a transfer of real property may be either a good or a valuable consideration. A consideration is termed good when the transfer is made because of blood relationship or because of nat ural affection. Such relationship or affection is recognized by law as sufficient consideration to sup port the transfer of property to another without the passing of anything of value. Such a conveyance is not good against creditors whose claims are in exist ence and valid at the time of the transfer.
A valuable consideration may be a transfer of money or of anything of value. It may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. Marriage is a valuable consideration under English law. It may also be a change either actual or potential in the financial position of one in favor of another. Any deed made without valuable con sideration (even tho the one were inserted fictitiously) may be set aside by creditors as a fraud upon their rights. Creditors, whose claims arise after the con veyance, have no ground for attacking the transfer.
A deed may be void when the consideration is illegal or against public policy or when induced by fraud or duress.
4. Granting hereby grant and re lease unto the said party of the second part, his heirs and assigns forever"—these words, known as the granting clause are important. By this clause the title is transferred from one party to the other. The language used is similar to that employed for the conveyance of an estate in fee simple. If any less estate than a fee is to be transferred by the deed, the language of the clause should be changed appropri ately. For example, if a life estate were to be granted, the wording would be "does hereby grant and release unto the said party of the second part for and during the term of his natural life." 5. Description of property transferred.—The de scription of property to be included in a deed should be more detailed than in a contract. It should be quite definite and easily traced because it is perma nent. The contract lasts for only a short time, but the deed is usually recorded and becomes part of the permanent history of the title to the land. The deed affects not only the present parties, but also their successors in ownership.