Deed. EXECUTION OF, the performance of the ceremonies required by law in order to make a deed binding and effectual. These ceremonies in England consist in signing, sealing, and delivering. Signing is usual in practice, but it is open to doubt whether it is strictly necessary in law. When a party, from any cause, is unable to write, it is usual for him to place his mark in the place of signature. But a mark is unnecessary, and signature by another, at request of the party, is enough. Sealing is the most ancient form of authentication of deeds, and comes from the Norman usage. A seal is absolutely essential to the validity of an English deed, but any species of seal is sufficient, and in practice a common wafer is usually affixed. Delivery is the third requisite. Delivery may be made either to the grantee or to another person for him. In the former case, the deed becomes absolute; in the latter, it is called an Escrow, and does not yet acquire its full effect. Witnesses are not absolutely required to a deed in England, but in practice it is usual that one witness should attest. Before execution, a deed must be read, if required, by a party to it; and if not read, it is void as to the party requesting. A will (except that of a soldier or sailor in active service) must be in writing, and signed by the testator or by some other person in his presence and by his direction; and two witnesses must attest the signature.
In Scotland, sealing was once essential, but has long fallen into disuse. A deed is now probative on the face of it (i.e. is received as the authentic act of its grantor) if it is signed by the grantor on each sheet, and attested by two witnesses who are either designated in the deed itself, or in a designation added to their subscriptions before the deed is recorded or founded on in court. In case the maker of the deed cannot write, the deed is validly executed by one notary public or justice of the peace signing it for him in his presence and by his authority, and reading it over to him, all in the presence of two witnesses. A parish minister may act in his own parish as notary for signing a will. Holograph deeds—i.e. deeds written throughout in the handwriting of the grantor, are exempted from the rules as to execution; as also, out of favour to trade, are mercantile writings, such as Bills of Exchange.
In the United States, the formalities required for the transfer of real estate are governed by local laws. Generally throughout the states, signing, sealing, attestation, acknowledgment, and delivery are the essential requisites of a valid deed of con- veyance. The usual form of attestation being 'signed, sealed, acknowledged, and delivered in the presence of us witnesses,' then follow the names of the subscribing witnesses. The grantor must himself sign the deed, or if it is signed by his agent he must adopt the signature as his own in the presence of the subscribing witnesses and the commissioner or other qualified officer. In the United States, a 'deed,' technically speaking, is an instrument under seal; hence a seal, although a mere formality, is essential, except in those states in which seals have been abolished by statute—Alabama, Louisiana, Texas, Virginia, Kentucky, Kansas, and Iowa. Neither wax nor wafer is necessary for a seal, although a wafer is generally used. A scroll with a pen inclosing the letters 'L.S.' is a seal within the meaning of the law, if it is the intention of the party appending it to adopt it as his seal, and by its use a specialty is created, the same as by the use of wax or wafer. It is not necessary to refer to the fact of sealing in the attestation clause. The number of witnesses required is governed by statutes in most of the states. Generally two are required, but in some of the states only one witness is necessary if the grantor can read; and it is believed that in any state a deed otherwise properly executed with but one subscribing witness would be good as between the parties themselves. It has also been held that independent of any statute, a deed signed, sealed, and delivered, without being acknowledged or recorded, is valid as between the parties and their privies, but the provisions of a local statute as to the execution of a deed must be strictly followed, or the deed is inoperative. Delivery, although essential to the execution of a deed, need not be formally made in the presence of witnesses, but may be a matter of circumstance. A deed takes effect from the date of actual delivery, or the date of record. Everywhere in the United States it is the law that deeds of conveyance must be recorded either in the proper office of the county in which the land lies—or if the conveyance be by grant or letters patent from the state or United States, the record must be made in the land office of the state or United States. The recording of a deed has the force of seisin and possession under the English law. Any estate less than a fee may be conveyed by deed with single acknowledgment, but if the estate sought to be conveyed is a fee, the husband and wife must join in the deed and acknowledge it separately. Deeds of conveyance of lands sold at judicial sale, or for taxes for several successive years and unredeemed made by the sheriff of the county, and deeds made in pursuance of a decree of court by the officer appointed for that purpose, are as effectual as if made by the grantor and his heirs, and must be executed with the same formalities and recorded within fifteen days; neither is it necessary to set forth in the deed as a part of the title the proceedings which culminate in the decree of sale. Federal decisions as to the formalities necessary to the execution of a deed are apparently conflicting. This arises from the application of the principle that land or property must be governed by the law of the place in which it is situated, and the lack of uniformity of state laws upon this subject. The United States laws are applicable only to lands belonging to the United States and those located within the territories. See also CONVEYANCING, CONTRACT, CHARTER, TITLE-DEEDS, WILL, ERASURE, REGISTRATION, &c.