Deed, a term originally employed to express an act for the disposition of lands, which at an early period was by the actual or symbolical delivery of possession in the presence of witnesses; but when a writing was substituted in place of this formality, the same name continued to be applied. Strictly, any instrument in writing, sealed and delivered, is a deed; but the word is most commonly applied to those instruments only whereby real estate, or some interest therein, present or prospective, is transferred or created. In English conveyancing, a deed to which there are several parties is called an indenture, and properly counterparts should be made on parchments, the edges of which should be cut (indented) like the teeth of a saw to correspond with each other. A deed poll (polled or shaved even) is one executed by a single party. The term indenture is used in this country simply as expressing that there are several parties; and though in form the deed purports to be executed by all the parties named, yet in fact the ordinary deed in lands is executed by the grantor only.

The deed chiefly used in the United States is what in the English law is called a conveyance by bargain and sale. (See Bakgain and Sale.) No particular form, however, is required if the intention be sufficiently expressed, and a very simple one will be found in general use in most of the states; though very cumbrous forms are still employed more or less, particularly by old conveyancers, which combine the various operative words of the several English conveyances; as give, grant, bargain, sell, remise, release, alien, enfeoff, and confirm; a collocation of words which has this advantage, that the form may fit almost any possible case. In some states a short form is given by statute, and the effect of the terms employed, as covenants or otherwise, is prescribed. The consideration for a deed may be either good, i. e., natural affection between near relations, or valuable, i. e., that which has a pecuniary value, as money or other property, or marriage; but a deed without any consideration, deliberately made and delivered, is perfectly good as between the parties, and as against all other persons except creditors and subsequent purchasers.

If, however, a voluntary conveyance, or one made on good consideration only, or even on a valuable consideration, if wholly inadequate, would have the effect to hinder, delay, or defraud the creditors of the grantor in the enforcement of their demands, it may be avoided at their suit; as it may also at the suit of a subsequent purchaser who has bought in good faith and without notice of it, actual or constructive. In common law conveyances it was not necessary that the consideration should be expressed, nor was it necessary to prove one, the conveyance itself being an act of such formality that the law raised a presumption of a consideration; but in deeds which were introduced under the doctrine of uses held in courts of equity, it was necessary that a consideration should either be expressed in the deed, in which case it could not be controverted by the parties or their privies, or the deed should purport to be upon a valuable consideration, and then one might be proved when the deed was brought in question.

As it is not necessary to name any particular sum, the nominal sum of $1 is often expressed; but the actual consideration, and whether paid or not, may always be inquired into, when essential for other purposes than the mere validity of the deed, notwithstanding a sum has been named or the receipt acknowledged. It has indeed been held that in order to prove any other in addition to a pecuniary consideration, it is necessary that there should be some expression in the deed to warrant it, as "for divers other considerations." These rules, which had respect to deeds of bargain and sale, will generally apply to the simpler forms which have been substituted. - A deed was at common law the most artificial of all forms of contract. Certain operative words belonged to each of the different conveyances, and no others could be used with the same legal effect, as enfeoff or give (feoffavi or dedi), in the conveyance of the fee; give or grant (dedi or concessit), in the conveyance of incorporeal hereditaments; demise, grant, and to farm let, in a lease; and so of others. A second peculiarity was that certain obligations resulted from the use of these terms without being otherwise expressed, which were called covenants in law.

Thus to the word "enfeoff" or "give" was annexed a warranty by which the grantor vouched for the title, and upon failure thereof was bound to render lands of equal value; but this being by statute limited to the grantor, an express clause of warranty was introduced into the deed in order to bind his heirs. This gave rise to what Lord Coke declared to be " one of the most curious and cunning learnings of the law." The heir was bound upon the presumption of law that he had received from his ancestor an equivalent; and though he was not compelled upon failure of title to render an equivalent to the grantee unless he had himself received other lands by descent from the warranting ancestor, yet he was barred from making a claim to the lands warranted if he might have derived title from him who made the warranty. The same rule was unjustly extended to a case where the title to the warranted lands could not by possibility have come from the warrantor; as when the husband, having an estate for life as tenant by the curtesy in lands belonging to his wife, conveyed with warranty, the son who would have taken as heir of the mother was barred from claiming the estate.

This is the doctrine of lineal and collateral warranties, to understand which fully it is necessary to bear in mind that it was first introduced for the purpose of avoiding the old feudal rule of non-alienation of lands without consent of the heir. By various statutes in England, collateral warranties are now abrogated, except when assets have descended from the ancestor who warranted. Both lineal and collateral warranties have been abolished in the state of New York, and it is further declared that no covenant shall be implied in any conveyance of real estate, and heirs and devisees are liable upon the express covenant of the ancestor or testator only to the extent of lands which descend or are devised to them. Corresponding statutes have been adopted in many of the other states. In the absence of such statutes it is held that the word "give" implies a warranty during the life of the grantor; that the words "grant, bargain, and. sell" do not imply a covenant of title in a conveyance in fee, but that "grant" or "demise" does imply such a covenant in a lease for years. Express covenants have both in England and this country taken the place of the ancient warranty.

The covenants usually inserted are these: 1, that the grantor is lawfully seized; 2, that he has good right to convey; 3, that the land is free from encumbrances; 4, that the grantee shall quietly enjoy; 5, that the grantor will warrant and defend. These are personal covenants, and the remedy for a breach is only against the covenanter or against his heirs or assigns to the extent of lands descended or devised. The covenants of warranty and for quiet enjoyment are broken only by actual eviction; hence they are said to run with the land, and may be taken advantage of by the heirs or assignees of the grantee. But the other covenants, not being prospective, but being broken, if at all, at the time of the execution of the deed, become what are called choses in action, and are not assignable. The measure of damages for a breach of these covenants is the price paid for the lands with interest, the rule being founded upon the supposed value of the lands at the time of the execution of the deed; and the rule is the same although the land has since risen in value, or the grantee has himself made improvements.

The covenant against encumbrances may be an exception, as the damages recoverable is the sum paid to discharge the encumbrance, and this may in some cases exceed the consideration or price of the lands. As to the parties to a deed, the general rules have been stated in the article Contract. An important innovation has, however, been recently made in many of the states in respect to the capacity of a married woman to convey, which will be more properly considered under the title Husband and Wife. - The recording of deeds is universal in this country; and although the suggestion was derived from a local practice in some parts of England, yet it is still very limited in that kingdom, being probably uncongenial to the large landed proprietors, who usually have private family arrangements which they would be unwilling to make subject to public inspection. For the purpose of recording, it is a requisite in all the states of the United States that the deed should be acknowledged or proved before some officer authorized to take such acknowledgment or proof, whose certificate is to be affixed to the deed; and in several of the states two subscribing witnesses are required.

In some states a subscribing witness is not required when the deed is acknowledged, but is necessary if the deed is to be proved for the purposes of record. The general provision is, that an unrecorded deed is inoperative against a subsequent purchaser in good faith and for a valuable consideration, whose deed shall be first recorded. It is, however, understood that actual knowledge of a previous deed by the subsequent purchaser, or such notice as should have put him upon inquiry, and if followed up would have led to the requisite information, will preclude the subsequent purchaser from taking advantage of the want of record; in other words, with such knowledge or notice, he will not be held a purchaser in good faith within the meaning of the recording laws. As between the parties to a deed, neither acknowledgment nor record is in general required, though in some states acknowledgment is necessary, and in others the deed is void as against subsequent purchasers unless recorded within a time fixed by statute.