conveyance of land to be by deed and under seal, but this has become necessary in most jurisdictions.67 At common law, the presence of a seal precluded the denial of the recitals of the contract. Statements made in a deed under seal were absolutely conclusive against the parties.68 Furthermore, a contract under seal, being of a higher nature, superseded a simple contract upon the same subject matter. This is the doctrine of merger.69 Similarly, a debt due under a sealed contract was entitled to a priority out of the assets of the deceased, before debts due upon contracts not under seal. But this doctrine has been generally eliminated by statutes of distribution.70 Quite generally a right of action arising upon a simple contract is barred by the Statutes of Limitations in less time than an action arising from a contract under seal.71 59. Same subject-Deeds, bonds, records.—(1) Deeds. The term "deed" is applicable to all contracts under seal, but it is now most frequently used in a limited sense to denote an instrument for the conveyance or incumbrance of real estate. Its execution consists in its being "signed, sealed and delivered," and it is then conclusive between the parties. Its form and requisites will be fully discussed under the subject, Real Property, in a subsequent volume of this series. Formerly there was a distinction between instru 67 See subject, REAL PROPERTY; Clark, Contracts (2d ed.), § 64. 68 2 Kent, Commentaries, p. 464; Sage v. Jones, 47 Ind. 122. 69 Banorgee v. Hovey, 5 Mass. 11. 70 Walker, American Law, p. 465. 71 See "Limitations of Actions" in state statutes. ments termed deed poll and indenture. A deed poll was a deed made by one party, and the parchment on which it was written had a smooth edge. An indenture was made by two parties. The matter was copied for each party on the same parchment, and the copies were then cut apart with indented edges. The parts could be identified by fitting them together. This distinction is no longer of importance except to designate the origin of the terms, deed poll and indenture, which are still used to designate instruments of one and of two or more parties, respectively. (2) Bonds. A bond is an instrument under seal acknowledging the existence of a debt. It differs from a covenant in that the latter is always an executory contract for something future, though each is called a "writing obligatory." Bonds are of two kinds, single bonds and penal bonds. A single bond, frequently called a single bill, is a simple acknowledgment of indebtedness without any condition of qualification; as if A, under hand and seal, acknowledges himself indebted to B for a given sum. A penal bond is an acknowledgment of indebtedness, accompanied by a condition, upon compliance with which such acknowledgment is to be void. The sum here made as a debt is called a penalty, because it is inserted merely to secure the performance of the condition, which is the principal thing. It is held that an action will not lie to recover a penalty, unless it be under a seal.72 (3) Records. Specialties of record are obligations of indebtedness evidenced by judicial records. The 72 Walker, American Law, pp. 466, 467. records form the highest evidence, and the only question that can be controverted is, whether the records exist. So specialties of record are the highest form of specialties. They are of two kinds: recognizances, and judgments or decrees. A recognizance is an acknowledgment of indebtedness made before a court or authorized officer, with a condition making it void on the happening of certain things mentioned in it, and the whole forming part of the record of the case. A judgment or decree is the final decision of a court upon a matter submitted to it, and being entered of record forms the highest kind of a specialty, as its terms admit of no dispute, but are proved by the production of the record. It merges the previous rights, and gives the judgment creditor convenient remedies not before his, as the right to issue execution, the creation of a lien, and the like.73 60. Same subject-Delivery and form.-The specialty must not only be sealed, but it must be delivered, in order to make it binding. This delivery is sometimes made by giving the instrument to a person not a party thereto, to be delivered to the other party upon the happening of an event. Such a delivery is called an escrow. But merely to part with the possession of the specialty is not sufficient, unless it is intended thereby to render it effective." Furthermore, to constitute a sufficient delivery, it is generally held in the United States that there must be an acceptance by the other party." But it seems 73 Anson, Contracts (Huffcut's 2d ed.), § 76. 74 Roberts v. Security Co. (1897), 1. Q. B. 111 (Eng.). 75 Meigs v. Dexter, 172 Mass. 217, 52 N. E. 75. This is not the rule in England. that where the instrument is clearly beneficial to the other party, its acceptance will be presumed." This is especially true where the other party is an infant. Of course no such presumption arises, even if beneficial, where the acceptance is in fact refused." As the delivery is the act making the specialty operative, its date is the date of delivery, regardless of the date of the instrument. Ordinarily, however, until otherwise proved, the date of the instrument is presumed to be the date of delivery.78 No particular form of words is necessary in order to constitute a sealed instrument. But as a general rule, a written agreement cannot be said to be a completed contract until it is signed by all the parties.79 The parties may, however, adopt it without signing, if the intention is clear that there is to be no signature.80 The signature may appear anywhere on the instrument. A deed which is sealed and delivered, but which omits a material part, is called a deed executed in blank. Such an instrument is void, and cannot be made good by subsequently filling in the blank without a new execution.81 61. Same subject-Statutory changes.-Statutes have modified or abolished the use of seals in many states. There exist three classes of states with reference to such legislation. The first class permits the 76 Peavey v. Tilton, 18 N. H. 151. 77 Butler and Baker's Case, 3 Coke 25a (Eng.). 78 Faulkner v. Adams, 126 Ind. 459; 26 N. E. 170. 79 Mattoon v. Barnes, 112 Mass. 463. 80 Dillon v. Anderson, 43 N. Y. 231. 81 Powell v. Duff, 3 Camp. 181 (Eng.). use of the seal and generally follows the rules of the common law in the enforcibility of sealed instruments. Here, the absence of consideration in a sealed contract may not be proved.82 These are usually the common-law states. The second class permits the use of the seal, but will allow evidence of the absence of a consideration.83 The third class has abolished the use of seals. Here, every contract must have a consideration.84 Other changes have modified the rules respecting specialties. The action of assumpsit, in place of covenant, on a specialty is permitted even in common-law states.85 Similarly, the rule that a specialty could be destroyed or modified only by an instrument of like dignity, i. e., a sealed instrument, has been changed. Now, such a contract may be rescinded orally or modified by a subsequent agreement.8 82 Illinois is an example. 83 Aller v. Aller, 40 N. J. L. 446. 84 Code states such as California, Kentucky, Ohio, Indiana, Iowa, Kansas; Stimson, American Statute Law, p. 455. 85 Illinois. 86 Bishop, Contracts, § 130. |