Wednesday, April 17, 2013

"Bargain and Sell"

One invariably sees the phrase "A bargains and sells to B" in deeds. Equally invariably, nobody handling such a deed can explain why the deed says "bargain and sell." Because they do not understand the words, having never bothered to learn the nature, purpose, or origin of their presence, people simply assume they are superfluous. It is fashionable in many circles to deride such phrasings as merely an abundance of surplusage.

Au contraire. The Georgia Supreme Court explains:
Blackstone says of the deed of bargain and sale, that it “is a kind of real contract, whereby the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to convey, the land to the bargainee, and becomes by such a bargain, a trustee for, or seized to the use of, the bargainee: and then the statute of uses completes the purchase; or, as it hath been well expressed, the bargain first vests the use, and then the statute vests the possession.” (2 Black. Com. 338.) So, Cruise says; “The proper and technical words of this conveyance, are, “bargain and sell;” but any other words that would have been sufficient to raise a use upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale.”

Dudley’s Lessee v. Bradshaw, 29 Ga. 17, 22–23 (1859). 

Thus, the contract for the sale of land was the bargain, which created (as it still does) an equitable title in the purchasor. The sale was the legal result, created by the Statute of Uses (27 Hen. VIII c. 10), that followed, of the legal title vesting in the purchasor as a result of the bargain. So the words are not surplusage: they describe the conveyance of two different rights, distinguishing a deed from a trust instrument. Once again, our ancestors prove that they were more intelligent than we like to believe.


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