Defeasance

(Fr. defaire, to defeat). An instrument which defeats the force or operation of some other deed or estate. That which is in the same deed is called a condition, and that which is in another deed is a defeasance. Comyn, Dig. "Defeasance." A collateral deed made at the same time with a feoffment or grant, containing certain conditions, upon the performance of which the estate created by such feoffment or grant may be defeated. 43 Me. 371. An instrument collateral to a bond, and containing the condition thereof. 2 Bl. Comm. 342.

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.

defeazance. A collateral deed shall be void upon the happening or the ditions.

An instrument which defeats the force or operation of some other deed or estate. That which is in the same deed is called a “condition;” and that whieh isin another deed is a “defeasance.” Com, Dig. “Defeasance.” In conveyancing. A collateral deed made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate tlien created may be defeated or totally undone. 2 Bl. Comm. 327; Co. Litt. 236, 237, An instrument accompanying a bond, recognizance, or judgment, containing a condition which, when performed, defeats or undoes it, 2 Bl. Comm. 342; Co. Litt. 236, 237.

A defeating: undoing, overthrow, avoidance, destruction, deprivation. ' See Feasance. Defeasible. Capable of avoidance or destruction. Indefeasible. Not admitting of abolition or impairment. Many constitutional rights are spoken of as indefeasible. Two uses of defeasance are recognized: 1. A collateral deed, made at the same ' Mason v. Aldrich, 36 Minn. 286 (1886), cases. = Union Trust Co. v. St, Louis, &c. E. Co., ante. = Page v'. Sutton, 29 Ark. 306 (1874): Burrill. See also 64 Ala. 430; 6 Iowa, 265; 29 id. 24S; 11 Neb. 398.. ' Cromwell v. County of Sac, 94 U. S. 356 (1876). See also 3 Col. 277; 6 id. 485; 3 Bl. Com. 397; 34 Cent. Law J. 27 (1887), cases: as against non-residents,; 21 Am. time with another conveyance, containing conditions upon the performance of which the estate created may be "defeated" or totally undone. 1 A bond for a reconveyance upon the payment of a specific sum, at a specified time, made at the same time and of the same date as a deed of conveyance. - Formerly, every mortgagor enfeoffed the mortgagee who simultaneously executed a deed of defeasance, considered a part of the mortga Re, whereby the feoffment was rendered void on repayment of the money at a certain day. But things that were merely executory, or to be completed by matters subsequent, could always be recalled by defeasances made subsequent to the time of their creation.^ It is not of the essence of a mortgage that there should be a defeasance; and there may be a defeasance of a deed of conveyance without constituting it a mortgage. The essence of a defeasance is to defeat the principal deed and make it void ab initio, if the condition be performed. ^ A defeasance made subsequently to an executed contract must be part of the original transaction. At law, the instrument must be of as high a nature as the principal deed. Defeasances of deeds conveying realty are subject to the same rules as such deeds themselves, as to record and notice to purchasers; but in some States notice of the existence of a defeasance, to be binding, must be derived from the public records.* When an absolute deed is shown to have been originally made as security for a loan of money, a court of equity will tre^t it as a mortgage, and allow the grantor to redeem the estate, on the ground that the defeasance was omitted from the deed by fraud or mistake.* But to reduce a conveyance to a mortgage the defeasance may be required by statute to be in 'writing, duly acknowledged and recorded." 3. A defeasance to a bond, recognizance, or judgment refcovered is a condition which, when performed, defeats or undoes it, in the same manner as a defeasance to an estate. The "condition" of a bond is always inserted in the bond or deed itself; a " defeasance " is made by a separate, and frequently by a subsequent, deed. This, like the condition of a bond, when perf oi-med, disincumbers the obligor's estate.' See Condition.

A collateral deed, accompanying or annexed to another, providing that the latter is to be void upon the happening or performance of certain conditions.

Defeazance. [L. Lat. defeisantia; from Fr. defaire, to undo or defeat.] In conveyancing. A collateral deed made at the same time with a feoffment or other conveyance, contauiing cer* tain conditions, upon the performance oi which the estate then created may be defeated or totally undone. 2 Bl. Com. 327. Co. Litt. 236, 237. In this manner mortgages were, in former times, usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a oeed of defeasance, whereby the feoffment was rendered void, on repayment of the money borrowed at a certain day. 2 Bl. CW. 327. Defeasances are now of rare occurrence, the practice in modem times bein^ to mclude in the same deed, [the mortgage] both the conveyance of the land to the alienee, and the conditions, if any, to wl^ch it is to be subject, and by which its effect may be defeated. 1 Steph. Com. 487. See 4 Kent's Com. 141, 142, and notes. An instrument accompanying a bond, recognizance or judgment, containing a condition which, when performed, drfeats or undoes it. 2 Bl. Com. 342. Co. Litt. 236, 237. A defeasance may also be endorsed on a bond, but the modem practice is to make the condition a part of the bond itself. See Bond.

contracts, conveyancing, ig an instrument which defeats the force or operation of some other deed or estate. That, which in the same deed is called a condition, in another deed is a defeasance. Every defeasance must contain proper words, as that the thing shall be void. 2 Salk. 575; Willes, 108; and vide Carth. 64. A defeasance must be made tn eodem modo, and by matter as high as the thing to be defeated; so that if one be by deed, the other must also be by deed. Touchs. 397; Vide Vin. Ab. h. t.; Com. Dig. h. t.; Ib. Pleader, 2 W 35, 2 W 37; Lilly’s Reg. h. t.; Nels. Ab. h. t.; 2 Saund. 47 n, note (1); Cruise, Dig. tit. 82, c. 7, 3. 25.