By Gose, John A.
Real Estate Issues , Vol. 33, No. 2
THE AGE OF "STICKS AND STONES:" MANUAL TRANSFER
Prior to 1500, most real estate conveyances (1) were by livery of seisin: "livery" meaning delivery and "seisin" meaning possession. Ownership followed possession at that time: "Historically, the doctrine of livery of seisin referred to the ceremony by which the transferor conveyed property to the recipient. To successfully convey a fee interest in the property, the doctrine requires the physical transfer of a piece of ground, twig, key, or other symbol on the premises in the presence of witnesses." (2)
Livery of seisin could refer to either:
* livery of deed, whereby the parties actually went onto the land, and the transferor symbolically delivered possession of the land by handing over a twig or a clump of earth to the recipient; or
* livery of law, whereby the parties went within sight of the land and the transferor telling the recipient that possession was being given, followed by the recipient entering the land." (3)
Beginning in the early 1500s, the method of conveyance began to change. Through pressure from Henry VIII, and aided by the common law lawyers, "It came about that in the Parliament of 1535-1536, perhaps the most significant piece of real property legislation in the history of English Law--namely, The Statute of Uses--was enacted." (4) The statute converted all English equitable estates created through "use" into legal estates. This was followed by the Statute of Wills (5) in 1540, which allowed the testamentary disposition of most English land. After the statute of uses, a simple bargain and sale deed would effectively transfer the beneficial interest to the grantee, and by the mandate of the statute of uses, the legal interest would follow. Hence, deeds replaced livery of seisin. (6)
With the passage of the statute of frauds in 1677, (7) writing was necessary to transfer a freehold interest in land and real estate. The effect of these three statutes was to solidify written transfers. Real estate closing transactions entered the era of parchment and paper.
II. THE WRITTEN ERA: 450-PLUS YEARS OF PARCHMENT AND PAPER
Since the mid-1500s, the deed has been the normal form of conveyance. Parchment gave way to paper, but the written deed was now the norm. Property may be conveyed by devise or will, (8) court order, or adverse possession, but by far the most prevalent method is by a written deed.
From the inception, the United States adopted English common law. The history of the title to various state lands is as varied as the states. (9) The real estate conveyance laws are usually governed by the state where the real estate is located. Thus, real estate conveyances are governed by 50 separate state laws, together with Native American laws and federal laws. Diversity is the word. All of these jurisdictions recognize the written deed. Each state has developed its own real estate law concerning conveyancing and deeds. One need only look at the index to deeds in the American Law of Property (10) to see the myriad of subjects covered by state law on deeds. Every facet of conveyancing law is covered from acknowledgments through warranties and words of conveyance. Indeed, the form of deed is specifically a state law creation. Most states have the basic form of deed from the release or quit claim deed (11) to the warranty deed. The implications, covenants and warranties from the various deed forms are again state dependent.
The effect of the various state recording statutes varies with the state. The recording statutes are varied and "Distinguishing among the types of recording acts can be tricky ..." (12)
One is ill-advised to generalize about deeds. They are state-specific. Over the life of the specific state, the state courts have developed the law peculiar to that state. Though one might see certain similarities in state interpretations, the law of conveyancing remains particularly state-dependent. …