Deeds

 

  Deeds are legal instruments for the transfer of property. At the present time, deeds are considered primarily as documents utilized for the transfer of "real" property (i.e. real estate or land) as compared to "personal" property. The will is considered the legal document by which personal property is transferred.

  Until the Nineteenth Century, the deed was utilized to transfer either type of property. The following information is provided to give you an idea of how deeds were used during the Colonial and Revolutionary War periods and up until the Civil War period.

  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 comprehend-ing 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 the book, 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 indivi-dual, 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.

  Although the formalities of signing, sealing and delivering deeds are not accomplished the same today, as they were during our ancestorsí times, the deed still must be signed by both parties, and the deed must be filed at the court house in order for it to be valid, legal and binding.

  Deeds are not as useful to the genealogist as some other forms of public records, because deeds seldom provide information on the families of the grantors and grantees of the deed, but they do provide proofs of the residence of an individual. They often provide the name of the spouse of the person filing the deed (i.e. the grantor) and/or the name of the spouse of the person receiving the deed (i.e. the grantee). Also, on early deeds the occupation of the grantor was often given at the very beginning of the deed. The usual way a deed would begin was with a statement such as: "This Indenture, made the twenty sixth day of November in the year of our Lord one thousand seven hundred and ninety nine, between Heinrich Naftgzer, shoemaker, of the township of Donegall in the county of Lancaster and state of Pennsylvania and Margaret his wife of the one part..."

  Copies of deeds and deed indexes are found in the county court houses in the register (or wills) and recorderís (of deeds) office.

  One more thing should be mentioned in regard to deeds. We often think of genealogy and lineage in terms of people, and seldom in terms of Ďplacesí. The genealogy of a tract of land can easily be traced by going backwards from the present time. The text of deeds has remained fairly consistent over the years. The deed usually begins with the naming of the two parties involved, the grantor (i.e. the seller of the land) and the grantee (i.e. the buyer of the land). Then a description of the tract in regard to its gen-ealogy often follows, with that being, in turn, followed by a physical description of the tract of land noting the boundaries and acreage encompassed by the tract. The description of the tract in regard to its genealogy usually consists of a statement such as "Being the tract of land recorded in Deed Book 32, Page 126..." By referring to the the named previous record, the researcher will find the deed pertaining to the tract of land issued just prior to this one. That deed, in turn, will contain a description of the tract very similar to that noted above, but noting the deed book and page of the record of the transaction just preceeding that one. By continuing backwards from one deedís description to the previous one, a researcher can identify the genealogy of the tract of land. This is not always completely clear and easy, though, because from time to time the tract of land might change hands not by a deed, but by being handed down via a will. In that case, the will must be located, and although the tract of land will be described in much the same way as in the deeds, it might not refer the researcher to a particular deed book and page.

  The results of a search of a tract of landís genealogy may provide some very interesting and surprising information. My search of the genealogy of the property on which I built my own house revealed that it was the homestead property of my great-great-grandfather John Jacob Nofsker, who moved into Bedford County circa 1827 from Centre County. I had heard tales about an old log house that stood on the property, but did not know, until making the search of the tractís genealogy, that the log house would have been the original homestead of my Nofsker ancestors. I had previously assumed that the log house located to the west, at Smith Corner, and in which my mother was born, would have been the original Nofsker homestead. The discovery that that assumption was incorrect urged me to conduct further research on that other property, which led to an understanding that it had originally been built by a Stiffler ancestor and simply acquired in the 1880s by my great-grandfather John Wilks Nofsker.

  The further back into the past that you take a search of the history of a tract of land, the greater the possibility that you will be able to go beyond the point where it was transferred by deed. You might be able to determine if it was recorded on an early land warrant. And if that is determined, it is possible that you might be able to also locate an early survey of the property.