Defeasance

An instrument which defeats the force or operation of some other deed or of an estate. That which is in the same deed is called a condition; and that which is in another deed is a defeasance. deed in case of things executory; Co. Litt. 237 o; 2 Saund. 43; but must be a part of the same transaction in case of an executed contract; Co. Litt 236 6; Lund v. Lund, 1 N. H. 39, 8 Am. Dec 29; Swetland v. land, 3 Mich. 482; Kelly v. Thompson, 7 Watts (Pa.) 401. Yet, where an Instrument of defeasance is executed subsequently in pursuance of an agreement made at the time of making the original deed, it is sufficient; 2 Washb. R. P. 489; as well as where a deed and the defeasance bear different dates but are delivered at the same time; Devi. Deeds 1102; Bodwell v. Webster, 13 Pick. (Mass.) 411; Reitenbaugh v. Ludwick, 31 Pa. 131; Hale v. Jewell, 7 Greenl. (Me.) 435, 22 Am. Dec. 212; Freeman v. Baldwin, 13 Ala. 246. The instrument of defeasance must at law be of as high a nature as the principal deed; Baton v. Green. 22 Pick. (Mass.* 526; Jaques v. Weeks, 7 Watts (Pa.) 261; Kelly v. Thompson, 7 Watts (Pa.) 401; Richardson v. Woodbury, 4.". Me. 206. It must recite the deed it relates to, or at least the most material part thereof: and it is to be made between the same persons that wore parties to the first deed; Shaw v. Erskine, 43 Me. "71. Defeasances of deeds conveying real estate are generally subject to the same rules as deeds, as to record and notice to purchasers; Brown v. Dean, 3 Wend. (N. Y.) 208; Priedley v. Hamilton, 17 S. & R. (Pa.) 70, 17 Am. Dec. 63S; Purrington v. Pierce, 38 Me. 447; but in some states actual notice is not sufficient without recording; Mich. Rev. Stat. 201; Minn. Stat, at L. 1873, 34, § 23. In equity, a defeasance could be proved by parol and a deed, absolute on its face, shown to be in legal effect a mortgage; Pearson v. Sharp, 115 Pa. 254, 9 Atl. 38; but such evidence must be clear, explicit, and unequivocal, and the parol defeasance must be shown to have been contemporaneous with the deed; id. In Pennsylvania, all defeasances are now required to be in writing, executed as deeds and recorded within sixty days after the deed. Act of June 8, 1SS1.