What exactly is a deed?

That was the question confronting Michael John Neill of RootDig.com after he came across two documents in a land entry file for federal land in Coshocton County, Ohio.

He wrote about the transactions in his blog entry on Tuesday, “A Straw Man in a Credit Under File.”¹

Both documents, he wrote, “are dated 21 April 1829. One transfers interest in the patent from Thomas Tipton to James Shores. The other transfers title in the patent from James Shores, Administrator of the Estate of Thomas J. Rampley, deceased, to Thomas Tipton. Both list the same property (part of section 5 in what is now Jackson Township, Coshocton County, Ohio).”²

He noted that Shores, as the estate administrator, couldn’t have simply deeded the land to himself, so Tipton was the “straw man” in the deal. He took title only long enough to convey it back to Shores.³

But after writing about the land deal and the roles of the players, he started thinking. Were these two documents actually deeds at all? Or should they be called something else?⁴ That’s when he brought in The Legal Genealogist.

You see, neither of the documents actually transferred title to the land. The first document, from Shores as Administrator to Tipton, conveyed “all the Equitable right … of the aforsaid Thomas J. Rampley … deceased had Either in law or Equity to a Certain Quarter lot of land.”⁵ The second, from Tipton back to Shores, conveyed all of Tipton’s “Right, Interest and Claim and Demand unto a Certain Quarter lot of land.”⁶

Neither of the documents could actually transfer title to that “Certain Quarter lot of land” because the dead man, Rampley, hadn’t yet gotten his patent from the United States for the land. It wasn’t until November of 1830 that Shores completed everything that needed to be done to get that patent.⁷

So are these really deeds?

And the answer is yes. And they and a whole range of other documents are all properly called deeds even though they end up accomplishing a whole range of purposes.

A “deed,” Black’s Law Dictionary tells us, is

A sealed instrument, containing a contract or covenant, delivered by the party to be bound thereby, and accepted by the party to whom the contract or covenant runs.
A writing containing a contract sealed and delivered to the party thereto.
In its legal sense, a “deed” is an instrument in writing, upon paper or parchment, between parties able to contract, subscribed, sealed, and delivered.
In a more restricted sense, a written agreement, signed, sealed, and delivered, by which one person conveys land, tenements, or hereditaments to another. This is its ordinary modern meaning.⁸

So a deed, in a modern says, can convey land (we know what that means), or “tenements,” or “hereditaments.” So what exactly are those?

“Tenement,” we learn, “is a word of greater extent than ‘land,’ including not only land, but rents, commons, and several other rights and interests issuing out of or concerning land.”⁹ And “hereditaments” are “(t)hings capable of being inherited, be it corporeal or incorporeal, real, personal, or mixed, and including not only lands and everything thereon, but also heir-looms, and certain furniture which, by custom, may descend to the heir together with the land.”¹⁰

Clearly, each of the documents in the Shores-Tipton transactions fell within these broad definitions. The right to proceed to acquire the patent was, at a minimum, “an interest issuing out of or concerning land.” In fact, the title-deed — a deed that constitutes or is evidence of title to the land itself — is only one type of deed.¹¹

So in the records you’ll come across, you’ll see the word deed referring to many types of transactions, such as:

     • Deed of accession: in Scottish law, “A deed executed by the creditors of a bankrupt or insolvent debtor, by which they approve of a trust given by their debtor for the general behoof, and bind themselves to concur in the plans proposed for extricating his affairs.”¹²

     • Deed of agency: “A revocable and voluntary trust for payment of debts.”¹³

     • Deed of covenant: “a separate deed (from the deed for the land itself), for title, or for the indemnity of a purchaser or mortgagee, or for the production of title-deeds.”¹⁴

     • Deed of gift: “a voluntary conveyance or assignment,”¹⁵ sometimes of land and sometimes of personal property, often used in slave transactions.

     • Deed of partition: “A species of primary or original conveyance between two or more joint tenants, coparceners, or tenants in common, by which they divide the lands so held among them in severalty, each taking a distinct part.”¹⁶

     • Deed of settlement: A deed made for the purpose of settling property, i. e., arranging the mode and extent of the enjoyment thereof.¹⁷

You’ll also see the term “deed of trust” or “trust-deed” — “In some of the states, and in the District of Columbia, a trust-deed is a security resembling a mortgage, being a conveyance of lands to trustees to secure the payment of a debt, with a power of sale upon default.”¹⁸

And all of these — and more — are still deeds.

 
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