In the study of the people who lived during the period of the American Revolutionary War, much useful information can be obtained from estate papers: deeds and wills, in the public archives of county court systems. The purpose of this page is to give you an idea of the structure and purpose of a deed as it existed in the Eighteenth Century.
A definition of the Deed as found in the Cyclopaedia: Or An Universal Dictionary Of Arts And Sciences, by E. Chambers, published in London in 1741 is as follows:
"DEED, Factum, in law, an instrument written on paper or parchment, consisting of three things, viz. Writing sealing and delivery; and comprehending a contract, or bargain between party and party."
"Of these there are two sorts; Deeds indented, and Deeds Poll: which denominations arise from the form and fashion thereof; the one being cut in and out in the top, or side, called indented; and the other plain, or polled."
"A Deed indented, or an indenture, consists of two parts or more, (for there are tripartite, quadripartite, septempartite, &c. Deeds) wherein it is expressed, that the parties thereto have to every part thereof interchangeably set their several seals. The cause of their indenting is, that, whereas the several parties have each one of them one, the indenture may make it appear, that they belong to one and the same contract by their tallying. See INDENTURE."
"INDENTURE, in law, a writing which comprises some contract between two at least; being indented at top answerable to another part, which has the same contents. It differs from a deed-poll; in that this last is a single deed, and is unindented."
"A Deed poll, or polled, anciently called charta decima parte, or charta simplex, is a plain Deed without indenting, used when the vendor, for example, only seals, and there is no need for the vendee's sealing a counter part, by reason the nature of the contract is such, that it requires no covenant from the vendee. See COVENANT."
"COVENANT, in law, is that which the law intends to be made, though it be not expressed in terms: as, if the lessor demise, and grant a tenement to the lessee for a certain term; the law intends a covenant on the lessor's part, that the lessee shall, during the term, quietly enjoy the lease against all lawful incumbrances."
"COVENANT, in Fact, is that which is expresly agreed between the parties. There is also a covenant merely personal, and a covenant real. Fitzherbert defines a COVENANT real, to be that whereby a man ties himself to pass a thing real, as lands or tenements, or to levy a fine on lands, &c. COVENANT merely personal, is where a man covenants with another by deed to build him a house, or to serve him, &c."
"SEALING DEEDS, Makes Persons Parties to them: and if they are not thus sealed they are void. If a Seal is broken off, it will make the Deed void; and when several are bound in a Bond, the pulling off the Seal of one makes it void as to the others. But in a Deed of Covenants, 'tis held that a Person's breaking off the Seal of one of the Covenanters, after making the Covenant, shall avoid the Deed only against himself. In case the Seal of a Bond be broke or eat off by Rats, or it is any ways cancelled, no Action can be brought on such Bond, &c."
From the foregoing, it is important to note that there were three parts to a deed, which had to exist to make the deed valid and lawful: writing, sealing and delivery. Without all three parts, the deed was void and useless. And it is from the fact that a deed was not valid unless it contained these three parts, that the saying, "signed, sealed and delivered" came to represent something that was in a complete state.
It was also noted in the above definition, that there were two basic types of deeds: 1.) Deed Poll, and 2.) Deed Indented.
The Deed Poll was used when only one party was required to seal the contract. It did not require a covenant from the second party. A Last Will And Testament is a good example of a Deed Poll. A Will was one-sided, not requiring the recipient's agreement (and signature and/or seal) to make it valid and binding. As long as the person making the Will (i.e. the testator) agreed to the terms, and signed it, sealed it and had it delivered to the recipient, the Will was valid.
The word poll meant "per head".
The Deed Indented (or Indenture) was used when a contract (or, in the words of the Eighteenth Century, a covenant) was to be made between two or more parties. According to the definition given in A New Law Dictionary, by Giles Jacob, printed "In the Savoy" in 1744:
"The reason for indenting is that, whereas the several parties each have one part, the written instrument, (by tallying them together) makes them appear that they belong to the same contract."
The Indenture, or Deed Indented, began with the grantor's (i.e. the seller's) portion, explaining what was to be conveyed. It could be either real or personal estate. The grantor's portion was followed by the grantee's (i.e. the buyer's) portion, explaining how the second party would compensate the first party for the conveyance.
The various portions of the Deed Indented were sometimes marked by notches cut in the sides of the parchment. By the Seventeenth Century, though, and continuing into the Eighteenth, the various parts of the document were separated by the capitalization of certain key words, such as "To Have And To Hold".
Both parties should sign the Indenture to indicate their agreement with the terms of their contract. In regard to the signatures, if the signer could read and write he (or she) would actually sign his (or her) name to the document. If the signer could not read and write, the court clerk, who had written the text of the document, would write the name and the person would simply make an X, usually between the given name and surname.
After the document had been properly signed, or marked with an X, a seal would be affixed to it. Thin strips of the parchment material (one for each of the parties) would be worked through a slit in the document's bottom edge, folded over, and the ends encased in small balls of soft clay. The parties to the contract would impress into the soft clay their individual and unique seals. The signet ring came into being for that very purpose. The design on the face of the signet ring was, often, the owner's armorial device. Because the armorial device was unique to the individual, the use of it on the signet ring provided a way for the sealing of the contract to be validated and beyond question, when impressed into the clay seal.
Toward the latter part of the Eighteenth Century, the parchment strips encased in clay seals gave way to wax seals. A spot of wax would be dropped on the document and the party would press the face of a signet ring into the soft, molten wax.
The decline of the use of signet rings resulted in the need for and use of specially made seal dies on which would be carved the user's armorial device or initials. Eventually, even the use of such seals was dispensed with altogether, and the parties simply signed the document.
As noted in the 1744 definition for "sealing deeds", given above, the breaking of any of the seals voided the contract. And it was wise for the possessor of a signed and sealed deed to safeguard it against any rodents that might be tempted to gnaw on the seals. It was assumed that the deed's seals would remain unbroken until the parties consciously chose to break the contract or covenant made between them.
