Historical Aspects of Deeds

The term “deed” is defined in early Indiana law:

In its legal sense, a “deed” is an instrument in writing, upon paper or parchment, between parties able to contract, subscribed, sealed and delivered; but by an act approved December 23d, 1858, a seal or ink scroll is no longer necessary to the validity of a deed, in this State.^[1]

The full history of the document is a subject of some debate in scholarly works. However, regardless of the actual provenance of the deed, like many things in real property, the deed has a long history in the common law of England and the United States. For instance, a brief search produced a pre-revolutionary case, which discussed a deed as follows:

This defendant admits that Thomas Bordley and Thomas Larkin in the information mentioned, did, for the consideration of 16,000lbs. of tobacco, purchase from Lancelot Todd, heir at law of the said Thomas Todd, a tract of land called Todd’s Pasture, also the tract of land called Todd’s Harbour, also the tract of land surveyed in 1651, and granted as aforesaid to the said Bordley and Larkin, and also another tract of land called Todd’s Range, by a deed bearing date the 10th of March, 1713, duly executed, acknowledged and recorded….^[2]

There are characteristics of the deed discussed in this excerpt that will continue to be important, namely that the deed in question was “executed, acknowledged, and recorded.” In his famous Commentaries on American Law, first published in 1826, James Kent states that a “deed, duly executed, must be written on paper or parchment and signed, sealed, delivered, and recorded.”^[3]

In Indiana, deeds formed part of property law since the founding of the State. For instance, a question as to whether recording a deed affects its validity was considered by the Supreme Court of Indiana in 1822:

The legal title to the land was vested in Shepherd by the execution of the deed agreeably to the laws of Virginia and did not depend on any act of Congress for its validity. The design of recording a deed is not to vest a title in the grantee; and a neglect on his part to have it recorded, does not destroy or make void a title once vested.^[4]

[1] Am. Ins. Co. of Chicago v. Avery, 60 Ind. 566, 572 (1878)

[2] Dulany v. Jenings, 1 H. & McH. 92, 112 (Md. Ch. 1738) (emphasis added)

[3] Kent, James. Commentaries on American Law. United States, vol. IV, p. 449, 1844.

[4] Henthorn v. Doe ex dem. Shepherd, 1 Blackf. 157, 162 (1822)