In medieval England, title to land was conveyed in fee simple by a feoffment with livery of seisin. The essence of this was a public ceremony, performed before witnesses, called a livery of seisin. The seller and buyer (feoffer and feoffee) met on the land, where the seller gave to the buyer something symbolic of the land like a twig or handful of earth, and made an oral statement transferring the land. No type of document was needed for this sort of transaction until 1677, when the Statute of Frauds required one for all transfers of land titles.
The Statute of Uses in 1535 effectively created an alternative form of conveyance, the bargain and sale. The seller (bargainor) basically promised to deliver the land to the buyer (bargainee) in exchange for a payment. The Statue of Uses provided that any written document transferring use of the land automatically transferred the title as well. The bargain and sale contract was useful because, unlike livery of seisin, the bargain and sale could take place in private and at a more convenient location than on the land itself. However it had the disadvantage that the Statute of Enrollment in 1536 required that a bargain and sale contract conveying land not only be written down, but also that the deed be enrolled in a public registry.
Another type of conveyance used at this time was the grant, which was used to convey an incorporeal or future interest in land. Due to a peculiarity of the law, a deed of grant could not be used to convey a current interest in land. However, a special form of grant called a release could be used to convey a future interest to someone who already had a current interest. [The modern version is called a quitclaim.] This resulted in a very popular form of conveyance called a lease and release. Two agreements were required. First, a bargain and sale contract was executed by the seller to convey a lease on the land. [Unlike an outright sale, leases did not require enrollment in a public registry.] The seller then separately executed a release to grant to the buyer (who was now his tenant) a reversion of the seller’s interest. Voila! The effect was to transfer title to the buyer, since he now owned both the current and future interests in the land.
Although it might seem that a bargain and sale of land was more straightforward, it did require livery and enrollment. A bargain and sale of a lease required neither. The lease and release thus became popular among those who wished to transact land sales in privacy, such as aristocratic families dividing up ancestral estates. [This was obviously a moot point in America.] In fact, the lease and release was heavily used in England well past the American Revolution, until an 1845 statute permitted the use of grants to transfer title to land.
In America, deeds for land were made in all these forms. For instance, the first deed book for Surry County, Virginia covering deeds recorded 1652-1671 contains deeds executed by each of these methods.
The specific method used for the conveyance was far less important in America than in England. The advantage of privacy, which favored lease and release conveyances in England, was eliminated by the actions of colonial legislatures which required public recording of deeds regardless of form they employed. Virginia, for instance, required deeds for land to be publicly recorded as early as 1640.
The most common form of colonial deed (at least in the southern colonies) was the bargain and sale. Livery of seisin and deeds of feoffment appear to have become steadily less popular to the point of becoming quite rare by the end of the colonial period. Lease and release conveyances seem to have been more popular in some areas than in others, perhaps more a reflection of a preference on the part of the individual clerks or attorneys who created them rather than any inherent advantage to the method. In Virginia, at least, there was seemingly no legislated preference as to method, nor any local advantage of one form over another. The statutes dealing with deeds persistently lump all the various types together, singling none out for special treatment.
Regardless of the method used, deeds were structured in the same basic way. Genealogists know that the names and residence of the grantor and grantee, the consideration, the description of the land, and the dower release are all valuable genealogical clues. We don’t always pay enough attention to the language describing exactly what is being transferred and to whom. That’s the subject of the next section.
Genealogists normally need to be concerned with just a few basic types of interests in land. Which type of interest is conveyed by a deed depends on the specific language used. These types can be viewed hierarchically based on how long the interest in the land is designed to last:
simple This is an interest that (potentially) lasts forever. It
was basically unrestricted in that the owner could do as he wished with the
land – in particular, could sell it or devise it to his heirs. The key
language in a deed is a conveyance “to X and his heirs.” Normally, we see a
more evolved version that makes it clear that the interest being conveyed was
unrestricted, for instance “to X and his heirs, executors, administrators, and
assigns.” These deeds almost always are clear that the interest is being
Fee tail The fee tail was an interest held by a person and his lineal descendants. It thus could last only as long as his lineal descendants survived. Each generation held what was basically a life interest, with the land passing to a specific lineal descendant upon his death, generation after generation. The current holder could neither sell the land nor devise it in a will. The key language in a deed (or a will) is a conveyance “to X and the heirs of his body.” Some more restrictive versions of fee tail are covered in a footnote. A person was said to have “died without heirs of his body” whenever the line eventually died out, at which point the land reverted to the legal heirs of the original grantor. [This subject is treated in more detail in the paper on entail.]
Life estate A life estate can last only as long as a particular person lives. The land then reverts to the original owner or his heirs. A deed (or will) which transfers property “to X for his life” is conveying a life estate. A deed which transfers land simply “to X” with no mention of X’s heirs also transfers a life estate. We commonly see a version of this in the case of a husband conveying a life estate to his widow in his will. Occasionally the life might be that of a different person, as in “to X for the life of Y.” The holder of a life estate could not sell or devise title to the land, though they could assign their lifetime right in it.
Term of years Basically, a lease. Leases usually used verbs in the granting clause like “demise” or “lease” instead of language denoting an outright sale. The term could be a specific length of time, or an undetermined period like a lifetime or “at will”. The leaseholder normally assumed the rights and obligations of the titleholder during the term of the lease. In colonial times, these often looked like any other deed and a careful reading of the terms is sometimes necessary to identify them as leases.
In addition to these forms of interest in land, we also see a variety of other sorts of recorded deeds. Among them are mortgages, deeds and bills of sale for property other than land, and a variety of specialized contracts such as deeds of settlement and marriage contracts.
Deeds became effective upon their delivery to the buyer. The public recording of a deed was not necessarily required in England (see above), but colonial legislatures dealt with higher volumes, and a greater level of fraud, than in the mother country. They recognized the need early on for a public register of land transactions. Virginia, for example, enacted statutes beginning in 1640 which effectively required all transfers of title to be recorded in order to preserve their validity. In 1662 it required even deeds executed in England to be recorded in Virginia. As the first and largest southern colony, and a great exporter of statutes, Virginia’s acts tended to be copied by the other southern colonies. For instance, although few of North Carolina’s early statutes survive, one of the first acts of its Proprietors was the appointment of a registrar of deeds.
Subsequent Virginia statutes clarified the recording requirement, eventually extending it to cover mortgages, most leases, marriage-related land contracts (deeds of settlement) and a variety of specialized deeds. Later statutes also clarified that the recording must take place in the jurisdiction where the land lay.
Deeds first had to be proven, either by the testimony of the seller himself or by witnesses. Virginia initially required the testimony of two witnesses, then increased the requirement to three witnesses in 1748. Once proven, the recording took the form of copying the original deed into a record book. A 1656 Virginia statute required all deeds to be “registered in a booke for the purpose” at the county courts. In general, the original deed was retained by the buyer, and the county clerk’s copy preserved in county record books. (Genealogists might note the possibility of copying errors.)
With regard to the timing of recording, Virginia’s original statutes required deeds to be recorded within six months of delivery. A 1705 act extended this to eight months (or two years if the seller resided outside the colony). The eight month requirement remained in force at least through the Revolution (though it was extended temporarily in 1766 and again for deeds after 1771.)
 Livery is an archaic form of the word “delivery.” Seisin (or seizin) was originally a word meaning “possession.” Livery of seisin thus was synonymous with “delivery of possession.”
 Sometimes the witnesses signed a statement that they had observed the ceremony, but that did not constitute a deed by itself.
 The Statute of Uses was designed to plug a tax loophole. Landowners were required to pay to the King a portion of the profits arising from their land. Medieval landowners had evolved a scheme to avoid paying these rents by separating title to the land from the right to use and occupy the land. The landowner would sell the right to occupy the land to someone else. The landowner avoided paying rents because he didn’t own the crops and livestock. At the same time, the person occupying the land avoided rents because he didn’t own the land. Some scholars estimate that perhaps 80% of land in England was being used in this way by 1535. The Statute of Uses plugged this loophole by providing that if the owner sold the right to occupy and use the land through a written document, then the legal title to the land would also transfer.
 The legal phrase for a current interest is “present possessatory interest.” A reversion is the operative example of a future interest (or ‘future possessatory interest”).
 Hening, Vol. 1, p227. See also Hening, Vol. 1, pp417: The Act of 1656 required all deeds for land to be recorded within six months at the county courts, or before the Governor and Council. It confirms prior acts of March 1642 and April 1652 which are not preserved. The purpose of this in Virginia was apparently to protect creditors across the ocean from land being transferred without their knowledge.
 Entails could be more restrictive with regard to the heirs. Some examples: “to X and the male heirs of his body” or “to X and the heirs of his body begotten on Y.”
 Hening, Vol. 1, p168.
 Hening, Vol. 5, p409.
 Hening, Vol. 1, p418 and confirmed in 1662 in Vol. 2, p98.