THE LAW RELATING TO DEEDS IN NEW ZEALAND

J. I?. Burrows*

Deeds used to be the most important and most common legal documents.
In many situations they were required by law, and in others, although
not necessary, they had distinct advantages over other forms of docu-
ment. Deeds undoubtedly no longer occupy this pre-eminent position,
although there seems to be considerable uncertainty among both practi-
tioners and academics as to their exact status today. This investigation
is an attempt to clarify the position to some small degree.

A. WHAT IS A DEED?
1. Execution
In England, a deed is a document under seal, written or printed on
paper, vellum or parchment.l The seal is clearly the important feature.
It was originally adopted as a requirement when, with the increase in
writing as an ac~omplishment,~ something was felt to be necessary over
and above a mere signamre to mark important legal documents off from
other writings; the mode of execution used by the nobility was felt to
be most appr~priate.~ But, paradoxically, over the years less and less
was regarded as being sufficient to constitute a sealing. The result is
that today the seal is usually no longer a wax impression; an adhesive
wafer attached by the law stationer or typist will do just as well." The
requirement is little short of a fiction.
It is therefore not surprising that the New Zealand legislature has
decided to dispense with the requirement altogether in this country. By
section 4 subsections (1) and (2) of the Property Law Act 1952 sealing
is not necessary to constitute a deed, except where the party to be
bound is a corporation; all that is necessary is that the deed should
be signed by the party to be bound, and attested by one witness who
adds his address and calling. (The requirement of paper, vellum or
parchment seems still to exist, something that is scarcely likely to give
rise to any practical problems.)
Yet one is led here into a logical trap. While all deeds have, and must
have, a signature and attestation, it seems that not all documents with
a signature and attestation are deeds. Something over and above these
minimum requirements is necessary, but there is a surprising lack of
* LL.M. (N.Z.), Ph.D. (Lond.). Senior Lecturer, Faculty of Law, University of
Canterbury, Christchurch.
1 Norton on Deeds (1906), 1-4; Odgers' Construction o f Deeds and Statutes
5th ed. (1967), 1-2. These two works are henceforth referred to as Norton
and Odgers.
2 Originally, it appears that a deed was any writing at all; writing was such a
rare accomplishment that anyone who went to the trouble of having a
document scratched out on parchment must have attached particular
eolemnity to the transaction. See Encyclopedia of the Laws of England
(1897), Vol. IV, 171.
3 Pollock and Maitland, ii. 223; Holdsworth, H. E. L., iii, 417.
4 Odgers, 6-7.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 241
unanimity as to just what it is. All one can say with certainty is that it
is not necessary that the document should be described in the body of
it as a deed.5 The same problem exists in England, where not all sealed
documents are deeds.GIt is thus rather unhelpful to find New Zealand
judges defining a deed as a document "which is of such a nature that
if sealed it would be a deed at common law".7
It may be that "deed" is not susceptible of brief comprehensive defini-
tion. The cases do not proceed on any very logical basis, each judge
tending to confine his decision to the document before him. The result
is that we can list certain documents which are not deeds-probates,
arbitrators' awards and the like-and certain documents which are,
without being clearly able to explain why. Some have gone so far as to
suggest that what is a deed and what is not varies according to the
context in which the word is used: that a "deed" for the purposes of,
say, the crime of forgery is not the same as a "deed" for the purposes
of the Stamp Duties Act. But, although many legal words have such a
chameleon character, to include "deed" among them would be an
affront to the usual understanding, and at least one New Zealand judge
has doubted whether the word can thus change its c01our.~
Inconclusive though they are, it is submitted that a perusal of the
cases yields at least the following guides, none of them intractable.
First, if a deed is required by law to accomplish a certain legal result,
the court will very readily hold that a document attempting to achieve
that result which meets the requirements of section 4 is a deed, even
though it is nowhere described by the parties as one. Thus, a document
headed "agreement to lease" which contained words of demise has been
held to be a deed where the demise was for more than one year and was
tlius required by statute to be by deed.1° This reasoning would suggest
that if a promise without consideration is made by a witnessed document,
the document would be held to be a deed, for it can be legally effective
in no other way. Some caution is necessary, however, in applying this
approach. For instance, before holding that a witnessed document con-
ferring a benefit on a third person is a deed for the purposes of section
7 of the Property Law Act 1952, a court would need to convince itself
that the parties wanted such arrangement to be directly enforceable
by the third person.
Secondly, even in cases where no deed is required by law, it would
seem that a witnessed document will be held to be a deed if the parties
intended that it should be one. The simplest way for them to evince
that intention is to include words in the document itself describing
it as a deed, but it is probably enough if that intention appears from
their other words and conduct. Thus, the principal reason that a licence

5 Boyd v. Cooper (1915) 34 N.Z.L.R. 807.

6 R. v. Morton (1873) L.R. 2 C.C.R. 22 at 27 per Bovill C.J. And see
Electricity Meter Mfg. Co. v. Manufacturers' Producers Pty. Ltd. (1930)
30 S.R. (N.S.W.) 422.
7 Domb v. Owler [I9241 N.Z.L.R. 532 at 538 per Salrnond J.
8 See, for instance, Mayor o f Wellington v. Commissioner of Taxes [I9311
G.L.R. 333 per Myers C.J. at 333.
9 Christie J. in Stellin Construction Ltd. v. Carr [I9481 N.Z.L.R. 578 at
585 (semble).
10 Boyd v. Cooper (1915) 34 N.Z.L.R. 807. See also Goodson v. Hawera Lawn
Tennis Club [I9311 N.Z.L.R. 1096; Mayor etc. o f Wellington v. Commissioner
o f Taxes [I9311 G.L.R. 333 and Re Palmer [I9191 G.L.R. 82 at 83 per
Edwards J.
242 THE LAW RELATING TO DEEDS IN NEW ZEALAND
to use a patent was held not to be a deed in the case of Chanter v.
Johnsonl1 was, to quote Parke B., that it did "not purport to be
delivered as a deed".lZ Yet there is some doubt as to how far this
principle extends, and whether any sealed or witnessed document what-
ever may become a deed just because the parties decide to describe it as
one. For instance, there is authority that share certificates,13certificates
of admission to learned bodies,14 memoranda of association,15probates,18
arbitrators' awardsx7and receiptsls are not normally deeds, even though
sealed or (in New Zealand) witnessed. Would it make any difference if
the parties actually described such a document as a deed in the body
of the document? There is some authority, although fairly oblique, that
an award may be a deed if the parties clearly evince their intention that
it should be,19 and it seems fairly clear that the same is true of a
receipt. But some of the others may well be instruments sui generis,
which the parties cannot convert into deeds at their mere whim. That
is obviously so of a probate,20which is not a document between private
persons; this may well be an essential characteri~tic.~~
Thirdly, it appears that if a witnessed document contains words which
are immediately operative-words, for instance, having the effect per se
of vesting or divesting property, or of discharging obligations-it is
likely to be held to be a deed. Thus, an agreement to lease will readily
be held a deed if it contains words of present demise;22whereas a
renunciation of probate has been held not to be a deed, for such a
document does not operate to convey anything.z3
That leaves the class of case which is perhaps the most doubtful: the
class where a contract not required by law to be by deed is embodied
by the parties in a document which satisfies the formalities of a deed,
although the parties nowhere describe it as one. An example would be
an attested agreement for the sale and purchase of land. Such a document
was held to be a deed in Stellin Construction Ltd. v. and the
words of Christie J. in that case strongly suggest that any contract
which meets the minimum requirements of section 4 is a deed.25Yet
that is very doubtful. In Mayor of Wellington v. Commissioner of
Taxesz6it was held that a drainage agreement entered into by a City
Council was not a deed, although under the suggestion from the
cases is that an agreement to lease which does not contain words of
1 1 (1845) 14 M. Br W. 408. See also Brown v. Vawser (1804) 4 East 584.
12 14 M. & W. 408 at 411.
13 R. v. Morton (1873) L.R. 2 C.C.R. 22 at 27 per Bovill C.J.
14 ibid.
15 Re Whitley Partners Ltd. (1886) 32 Ch.D. 337 at 340 per Cotton L.J.
16 Chanter v. Johnson, supra.
-17. ihiri
- .-.
18 Hurrey v. Bank o f New South Wales (1882) N.Z.L.R. 1 C.A. 115.
19 Brown v. Vawser (1804) 4 East 584.
20 Cf., however, Blackburn J. in R. v. Morton (1873) L.R. 2 C.C.R. 22 at 28.
21 It seems to be so treated by Odgers, 1.
22 An alternative ground of Boyd v. Cooper (1915) 34 N.Z.L.R. 807. See also
Malfroy v. Raymond (1906) 26 N.Z.L.R. 563 and Brown v. Turner (1911)
13 G.L.R. 413.
23 Re Palmer [I9191 G.L.R. 82. See also Long v. Murray [I9341 G.L.R. 487,
and Fama v. Ryder [I9541 N.Z.L.R. 523, especially at 529-530 per Turner J.
24 [I9481 N.Z.L.R. 578.
25 Idem. 584-585.
26 [I9311 G.L.R. 333.
27 But it may be that that case turned on the construction of the particular
statute in question.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 243
present demise is not a deed;2s and the words of Turner J. in Fama v.
Ryder, the most recent case, are that "a contract executed with the
formalities of a deed may be held to be a deedw"-not that it is always
a deed. It is submitted hesitantly that whether such an instrument is a
deed or not will turn on "the intention of the parties", to be gauged
from such matters as the importance of the transaction, and the
language used in the document-4.g. the presence of words such as
"covenant" and "proviso".30
In the light of all this, it is extremely difficult to give a satisfactory
brief definition of "deed". That of Norton is the most often quoted:
A deed is a writing [signed and attested] whereby an interest, right or property
passes, or an obligation binding on some person is created, or which is in
affirmance of some act whereby an interest, right or property has passed.31
But this is not very satisfactory. Certain instruments well within this
definition are not necessarily deeds (for instance an arbitrator's award,
and the drainage agreement of the Wellington City Council case,32both
of which create "an obligation binding on some person"); and, con-
versely, certain documents which are clearly deeds are not comprehended
by this definition (for example a deed poll changing a surname). It is
probably not possible to give a simple comprehensive definition; it is
proposed to leave the matter with the guides already postulated. Nor is it
proposed, in this general article, to tackle the even more complicated
question of the difference between a deed and a document which by
statute "has the effect of a deed";33 or the problem of whether a
document whose form is prescribed by a particular statute, and which
happens to coincide with the requirements of a deed, is, or can be, a
deed.34Suffice it to say that the courts have not as yet answered these
questions.

2. Delivery
It has always been a requirement of the common law that, to be
effective, a deed must be delivered. "After a deed is written and sealed,
if it be not delivered, all the rest is to no purpose."35 Originally,
"delivery" probably bore its literal meaning, and the deed had actually
to be handed over to the other party to the transaction. But before
long something far less became sufficient; and today all that is required
is that there should be "acts or words sufficient to show that it is intended
by the party to be executed as his deed presently binding on him".36
Delivery, in other words, is now nothing more than a synonym for the
party's intention to be bound.
28 See the cases cited n. 22 supra.
29 [I9541 N.Z.L.R. 523 at 527. (Emphasis added) See also Harper v. Cornrnis-
sioner o f Stamp Duties [I9421 N.Z.L.R. 18.
30 See Re Palmer [I9191 G.L.R. 82; Malfroy v. Raymond (1906) 26 N.Z.L.R.
563. For a discussion of the whole topic see Goodall, Conveyancing in New
Zealand, 2nd ed., 10-16.
31 At p. 3. It is substantially taken from Bovill C.J.'s judgment in R. v.
Morton supra n. 13.
32 Supra n. 26.
. ,
33 The two awwarentlv need not be the same: Re Whitlev Partners Ltd. (1886)
32 Ch. D. %7 at 340 per Cotton L.J.
34 See below, p. 246.
35 Termes de la Ley, Heading "Fait."
36 Xenos v. Wickham (1867) L.R. 2 H.L. 296 at 312 per Blackburn J. And
see Co. Litt. 36a and 49b.
244 THE LAW RELATING TO DEEDS IN NEW ZEALAND
In the light of this. the definition of an "escrow" has become a matter
of some difficulty. Classically, an escrow was a document delivered to a
"stranger" or "third person" to be handed over by him to the other
party to the transaction upon the happening of a certain condition, at
which moment it became a deed.37 But it was eventually established,
after a number of fictitious extension^,^^ that even a document handed
to the other party to the transaction could be an escrow if it was not
intended to be effective as a deed until the happening of some condition
precedent.39 It might appear, then, having regard to the modem under-
standing of "delivery", that an escrow is simply a deed which, although
it has left the grantor's possession, has not been "delivered". There are,
indeed, some cases which use this t e r m i n ~ l o g y .But
~ ~ apparently this
is not quite correct. An escrow is a document which has been delivered,
subject to a condition precedent: that is to say, it is a document which
is intended to have effect as a deed provided a certain stated event
happens.41 While the parties await the happening of the event, the
grantor cannot revoke the document.42
In the light of all this, section 4(3) of the Property Law Act 1952
is, at first sight, somewhat puzzling. It says, with regard to deeds, that
"formal delivery and indenting are not necessary in any case". This
obviously cannot mean that a deed invariably has immediate effect the
moment it has been signed and attested, without any "delivery" at all;
if that were so a conveyance of land under a deeds system would be
completed as soon as the vendor signed the deed, and before the
moment of settlement. It is clear that the important word is "formal",
and that all this section does is to remove the ancient common law
requirement of a formal handing over; it does not dispense with the
need for an intention by the grantor, evidenced in some way, to be
bound by. the deed. Further, it has been held by the New Zealand
Court of Appeal that this section does not preclude the possibility of an
escrow in this country; a document may still be validly handed to
another subject to a condition precedent as to its effectiveness as a deed.43
If this is so, the position in New Zealand as regards delivery is the
same as that in England. The sub-section in question may therefore be
mere surplusage.

B. WHERE THE DEED IS IMMEDIATELY OPERATIVE

A deed may operate in two ways. Sometimes it acts as a contract,
and imposes an obligation on the parties to do something in the future.

37 Sheppard's Touchstone, 58. See Blunden v. W o o d (1606) Cro. Jac. 85;

Holford v. Parker (1618) Hob. 246.
38 See, for instance, Watkins v. Nash (1875) L.R. 20 Eq. 262.
39 London Freehold & Leasehold Property Co. v. Suflield [I8971 2 Ch. 608;
In re Carile [I9201 V.L.R. 427; Odgers, 12.
40 In re Carile [I9201 V.L.R. 427 at 431 per Cussen J.
41 See the statements of law in Xenos v. Wickham (1867) L.R. 2 H.L. 296
- - Ch. 105
at 323 Der Lord Cranworth: Beeslv v. Hallwood Estates Ltd. 119611
at 116-f19 per Harman L.J. '
42 Beesly v. Hallwood Estates Ltd. [I9611 Ch. 105; Windsor Refrigerator Co.
Ltd. v. Branch Nominees Ltd. [I9611 Ch. 375. See the criticism of the present
state of the law by Winn L.J. in Vincent v. Premo Enterprises Ltd. [I9691
2 Q.B. 609 at 622-623.
43 In re Goile, Ex parte Steelbuild Agencies Ltd. [I9631 N.Z.L.R. 666. The
same point is made, albeit by implication, in In re Vanstone [I9551 N.Z.L.R.
1079.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 245
At other times, however, the deed eo instanter accomplishes a legal act:
the deed itself renders the legal position what it declares it to be.44 For
purposes of simplicity, this latter sort of deed may be described as a
"conveyancing deed". There is admittedly a certain degree of overlap
between these two functions of a deed: they sometimes appear side by
side in the same document; sometimes a contract has the effect d a
conveyance in equity;45 and sometimes, especially in the case of a
release of debt, there is some doubt into just which category the trans-
action falls. But for discussion purposes a reasonably clear division can
be made. We shall deal first with cases where the deed accomplishes a
legal act: with conveyancing deeds.
At one time the deed was the main mode of conveyancing. A great
number of legal acts could only be accomplished by deed.46There were
exceptions, of course: physical property-goods or land47--could be
transferred by actual delivery (an illustration of how close the concepts
of possession and ownership were in early law), and commercial con-
venience dictated that other informal acts developed by the practice
of merchants should be sanctioned by the law: the negotiation of bills
of exchange and the assignment of insurance policies, for instance.
Today, however, the deed is dwindling in importance in New
Zealand. There inevitably remain certain situations where it is required
by law, some of them the result of persistent common law rules, but
rather more being enshrined in statutory provisions. They fall into
three groups. First of all, there are a few instances where a deed is
required to transfer property. For instance, in the rare case of land
under the deeds system, the deed is still the only means of "partition,
exchange, lease (for more than a year), assignment or s ~ r r e n d e r " ; ~ ~
in the absence of delivery, a deed is the only effective means of trans-
ferring goods by way of gifti4%nd a power exercisable inter vivos can
only be exercised by a deed.50In the second place, certain releases and
disclaimers also require deeds: for instance disclaimers of any interest
in land,51 of a succession interest by a person entitled to a share on an
intestacy,52and of a releases or part releases of debts (unless
supported by cc~nsideration)~~ and (what is rather the same thing) an
approved compromise with creditors by a bankrupt.55 Thirdly, a deed
is sometimes necessary for a man to achieve a new status: to enter or
leave a class of persons to whom special rights and duties attach. Thus

44 See Holdsworth, H.E.L., iii, 226 and 357 et seq for the history of the deed,
and its "double aspect".
45 See below. A covenant may operate as an assignment: R e Lind [I9151
2 Ch. 345; R e Gilliot [I9341 Ch. 97.
46 See the list of circumstances where a deed was required by the common law
set out in Halsbury, Laws of England, 1st ed., vol. 10, 361-364; 3rd ed.,
vol. 11, 327-330.
47 This was feoffment with livery of seisin in the case of land. It goes without
saying that land is no longer transferable by delivery, although goods still
are: goods may also be transferred by sale.
48 Property Law Act 1952, s.10.
49 Garrow and Gray, Personal Property, 5th ed., 48.
50 Property Law Act 1952, s.11. The words of the section are " . . . executed
as a deed is hereby required to be executed."
51 Property Law Act 1952, s.12.
52 Administration Act 1969, s.81.
53 Property Law Act 1952, s.34.
54 The rule in Foakes v. Beer (1884) 9 App. Cas. 605.
55 Insolvency Act 1967 s.123.
246 THE LAW RELATING TO DEEDS IN NEW ZEALAND
a trustee may only retire,56and a new one be appointed, by deed;57a
guardian of children can only be appointed extra-judicially by deed or
Under this head we may place also the man who wishes to change
his name (he must do it by deed poll) and the man who is appointed
attorney.59
Yet, overall, the deed has today nothing like the importance that once
attached to it as a conveyancing instrument. This is largely the result
of two influences: statute and equity.
Statute
Many modem statutes provide for the creation and transfer of particu-
lar interests in property by documents less than deeds. In some cases,
the statute actually prescribes a special form. Occasionally these pre-
scribed forms have the insignia of a deed (signature and attestation),
although they are nowhere said actually to be deeds. Examples are the
memoranda under the Land Transfer Act 195260and the instrument by
way of security under the Chattels Transfer Act 1924.61Others of these
prescribed forms, however, fall short of the requirements of a deed;
the legislature seems to have realised that there is more point in clarity
and uniformity than in blind adherence to the format of the deed.'j2
But most significant are quite a large number of statutes which require
no more than a simple signed writing; the best known are perhaps the
sections of the Property Law Act 1952'j3and the Copyright Act 196264
providing for the assignment of, respectively, choses in action and copy-
right.65 These really are situations where intention appears to matter
more than form.
Equity
"Equity looks to the intent rather than the form." Equity has never
been as insistent as the common law on forms of words. It has never

56 Trustee Act 1956, s.45.

57 Zbid.. s.34.
58 ~ u a r d i a n s h Act
i ~ 1968, s.7.
59 For0 - 9New Zealand authority, see Richardson v. Harris [I9301 N.Z.L.R. 890
-1
a1 7LJ.
60 By the Land Transfer Act 1952 s.157(2), as amended by the Land Transfer
Amendment Act 1958, s.2, these are said to "have the effect of deeds".
61 See also the forms for bill of sale and mortgage of ships prescribed by the
Shipping and Seamen Act 1952 ss. 412 and 418, and the form for mortgage
of a life insurance policy provided by Life Insurance Act 1908 s.44.
62 See for instance the form of the assignment of a life insurance policy pre-
scribed by the Life Insurance Act 1908 s.43; and the form of transfer pre-
scribed by the New Zealand Loans Act 1953, s.30. Note also the Status of
Children Act 1969 s.8 which provides that an acknowledgement of paternity
may be made in the form of a deed or by writing in the presence of a
solicitor.
63 s.130.
64 s.56(3).
65 The Bankruptcy Act 1908 s.84 (cf. Insolvency A d 1967 s.75) and Companies
Act 1955 s.312 provide that the Official Assignee and liquidator respectively
may disclaim onerous property in writing; the Charitable Trusts A d 1957
s.3 provides for succession of trustees by the most informal methods; the
Friendly Societies Act 1909 s.65 and Industrial and Provident Societies Act
1908 s.15 provide for "instruments of dissolution" of the societies by rela-
tively informal agreements; the National Provident Fund Act 1950 s.73A
provides for the surrender of a pension for cash payment, which is to be in
writing. Although assignments of patents, designs and trade marks are
recognised by statute, no particular form is prescribed: see Patents Act 1953,
s.84, Designs Act 1953, s. 27, and Trade Marks Act 1953 5.31.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 247
required a deed for the creation or transfer of equitable interests:'j6
a trust, for instance, can be set up by a completely informal verbal
declaration.
This informal approach of equity has had important repercussions on
the law. It has had the effect that sometimes, even though the legal
formality of a deed has not been observed, a transaction may neverthe-
less have an effect in equity which is very nearly the same as if a deed
had been used. The classic example of this is the doctrine of Walsh V.
L o n ~ d a l e ,whereby
~~ an enforceable agreement to grant an interest in
land (be it lease, mortgage or easement) has, by virtue of the maxim
"equity looks on that as done which ought to be done", the same effect
as a proper deed of grant, save only that it is defeasible by third
persons.'j8 This doctrine has even been extended beyond agreements to
grant interests to actual attempts to grant those interests which fail for
want of form--e.g. because they are not in the form of deeds.69The
doctrine in such cases has the remarkable effect of converting an invalid
act into a valid one,70which is very nearly to "neutralise the provisions
of a statute",71 as one judge has objected; but it would not be the first
time that equity has done this.
The main application of Walsh v. Lonsdale and its associated doctrines
in New Zealand today is in cases where the "proper legal document" is
a Land Transfer memorandum rather than a deed.72But the equitable
approach which they exemplify is certainly capable of extending further
and rendering a deed less than mandatory in several of the situations
where statute supposedly requires one. The extent of this is uncertain,
for it is arguable that the availability of specific performance is central
to equity's ability to interfere. Even if it is, the equitable doctrine would
still seem wide enough to render effective, for example, a simple contract
disclaiming a succession interest or a power.73But the courts may be
persuaded by analogy to go even further and accord at least some
effect to informal documents in other cases too, even if it be not the
perfect effect which would have been achieved by a deed. By way of

66 11 Halsbury, Laws of England, 3rd ed., 335 et seq. It seems that the informal
transfer of an equitable interest does not require consideration; Halsbury,
loc. cit.; Garrow and Gray, Personal Property, 5th ed., 272.
67 (1882) 21 Ch.D. 9.
68 Besides Walsh v. Lonsdale itself, the doctrine is also seen in operation in
Swain V. Ayres (1888) 21 Q.B.D. 289; Manchester Brewery v. Coombs
[I9011 2 Ch. 608; May v. Belleville [I9051 2 Ch. 605.
69 The invalid grant is treated "as if it were an agreement". See Parker v.
Taswell (1858) 27 L.J.Ch. 812; Zimbler v. Abrahams [I9031 1 K.B. 577;
Miller v. Jenner [I9211 N.Z.L.R. 841; Harley v. Te Reneti Te Whauwhau
(1913) 33 N.Z.L.R. 256; Rewiri v. Eivers [I9171 N.Z.L.R. 479; Wellington
City Council v. Public Trustee [I9211 N.Z.L.R. 1086. Query whether con-
sideration is necessary: see a discussion of the parallel problem in assignment
of choses in action in Garrow and Gray, Personal Property, 5th ed., 271 et seq.
70 See Garrow, Real Property in New Zealand, 5th ed., 633: "a void lease
becomes equivalent to a valid lease."
71 Zimbler v. Abrahams [I9031 1 K.B. 577 at 581 per Vaughan Williams L.J.
72 See, for instance, Harley's case and Rewiri v. Eivers, supra n. 69.
73 See above at n. 53. It is notable that even in cases where statute requires a
signed writing4.g. the assignment of a chose in action or of copyright-
something less will suffice in equity. See Garrow and Gray, Personal
Property, 5th ed., 251 et seq, 320. Note also the effect of Hurst v. Picture
Theatres Ltd. [I9151 1 K.B. 1 on the doctrine in Wood v. Leadbitter (1845)
13 M . & W. 838 (grant of licence). See the discussion of the licence cases in
Hounslow ond don Borough council v. Twickenham Garden Developments
Ltd. [I9701 3 W.L.R. 538.
248 THE LAW RELATING TO DEEDS IN NEW ZEALAND
illustration, it has already been held that while a deed or will is by
statute necessary to appoint a guardian for one's the court
will nevertheless pay close attention to an informal document embody-
ing a parent's Similarly, if a new trustee is appointed by some-
thing less than a deed, it is hard to imagine that the courts will not
treat him as a constructive trustee the moment he intermeddles with
the estate; and constructive trustees are just as much subject to the
Trustee Act 1956 as express trustees.76
Yet it is well for the conveyancer not to take risks in this.77And it
must always be remembered that even when Walsh v. Lonsdale is operat-
ing to its full extent, the informal document never has quite the perfect
effect of the deed. The most one can say is that if the parties are too
careless, or have insufficient time, to prepare a deed where one is
required by law, their transaction will in many cases not be totally
devoid of effect.

C. DEEDS EMBODYING CONTRACTS

We turn now to the deed which contains a contract imposing future
obligations. Of this, rather more can be said. It has long been believed
that the deed differs in many important respects from the simple con-
tract: that rules applying to the one do not apply to the other, and
vice versa. The older text books certainly do list a number of important
differences; for instance, the 1865 edition of J. W. Smith's Law of
Contracts spends 16 pages doing just that.
But the deed has waned in importance. Whereas in olden times it
was the only effective method of contracting, it has now been supplanted
almost entirely by the simple contract, the result of a growing realisa-
tion that form matters less than substance. Indeed, the only contracts
which today are required by law to be by deed seem to be the bank-
rupt's compromise with ~ r e d i t o r s ,and
~ ~ the gratuitous promise (which
of course is not within the modern understanding of "contract" at all.)70
With this growing obsolescence has come a lessening of the old advan-
tages of the deed over the simple contract. In other words, there has
been something approaching an assimilation, perhaps hastened by the
abolition of the forms of action. There are no longer many rules which
are peculiar to deeds and which have no parallels in simple contract.
There are still a few, however. The most important undoubtedly is that

75 1 n ' ~ eHancock [I9321 N.Z.L.R. 318.

76 Trustee Act 1956, s.2. Note also National Bank Ltd. v. Dharamshi Vallabhji
11967 1 A.C. 207: on the construction of the Chattels Transfer Act 1924. an
battested instrument by way of security is valid inter partes, although'not
vis 2 vis third persons.
77 Note the emphatic statement in 11 Halsbury, Laws of England, 3rd ed., 335,
that "equity follows the law".
78 Supra n. 55; this arguably is a "conveyance" rather than a contract.
79 Some contracts are required to be in writing to be enforceable, and certain
statutes prescribe a particular method of execution-e.g. Shipping and
Seamen Act 1952 s.29-but these appear to be the only cases where a deed
is required. There thus appears to be little scope for the secion commonly
found in statutes dealing with corporations that the corporation must make
under seal any contract which would have to be by deed if between private
individuals. Unless the contract involves some element of conveyance, it
would seem that it need never be by deed. See, for example, Companies
Act 1955,.s.42, Public Trust Office Act 1957, 9.13, Charitable Trusts Act 1957,
5.19, Public Bodies Contracts Act 1959, s.3.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 249
no consideration is required to support a deed;s0 more will be said of
this later. The doctrine of merger-that a simple contract obligation
is nullified by and absorbed into a deed embodying the same obliga-
tion-also remains,81 although its scope is narrow. It applies only
where the subject matter of the two obligations is the same, so that the
two are either identical, or unable to stand together.82The other notable
instances are statutory. The limitation period is longer for an action on
a deed than on a simple contract;83a deed "not otherwise charged"
attracts stamp duty, whereas a simple agreement does a person
may sue on a deed although not a party thereto,85whereas the doctrine
of privity adamantly prevents this in the case of simple contract. These
are important differences, no doubt, even if the logic of their retention
is at times a little hard to follow. It is interesting to speculate on what
would have happened had they not been enshrined in statute.
Many differences which used to exist at common law between a deed
and a simple contract have either narrowed or disappeared completely.
Statute has accounted for some of them-for instance sections 33 and
37 of the Administration Act 1969 have removed the d d rules giving
specialty creditors priority over ordinary creditors in the administration

80 The rule is so fundamental that no authority is now ever cited to support it.
But authority does exist. See, for instance, Shubrick v. Salrnond (1765) 3
Burr. 1639; Pratt v. Barker (1828) 1 Sim. 1; Clough v. Larnbert (1839)
10 Sim. 174.
81 See Chitty on Contract, 23rd ed., General Principles, 28.
82 The law on merger is complex, and could well form the subject of a
special study. The early cases almost all involve debts, originally by simple
contract, but later embodied in a specialty. The simple contract debt merged
in the specialty not because of any theory that the parties intended it, but
just because the deed was the higher obligation; indeed the doctrine of
merger was thought to be quite independent of intention (Price v. Moulton
(1851) 20 L.J.C.P. 102). At the same time if there was any difference in
the two obligations, and they could stand together, there was no room for
the doctrine: e.g. if the parties were different (Holmes v. Bell (1841) 3
M . & G. 213; Ansell v. Baker (1850) 15 Q.B. 20); again, if the simple debt
was incurred after the specialty, the doctrine apparently had no application
(Norfolk Railway v. McNarnara (1849) 3 Ex. 628). However today the
doctrine of merger is usually applied in a different context, that of convey-
ances: a contract obligation merges in a conveyance. The rule here may have
a different basis: that after conveyance there should be an end to litigation.
The rule here, at least today, is also far more dependent on the parties'
intentions. The only provisions of the contract which merge are those
which the parties intend should be performed by the conveyance. (Knight
Sugar Co. v. Alberta Railway Co. [I9381 1 All E.R. 266; Svanosio
McNarnara (1956) 96 C.L.R. 186 at 206-207). But within this limit, even .d
the contract and the conveyance are inconsistent, the conveyance prevails
(ibid.). However, any provision of the contract which is not incorporated in
the conveyance and which was intended to survive it, does not merge, but
remains enforceable. This will included all such collateral matters as war-
ranties of quality, date of possession, promises of vacant possession, etc.
(Williams on Vendor and Purchaser, 3rd ed., 989; Stonham, Vendor and
Purchaser, 861; Lawrence v. Cassell [I9301 2 K.B. 83; Cumberland Holdings
V. Ireland [I9461 K.B. 264; Hissett V. Reading Roofing Co. Ltd. [I9691 1
W.L.R. 1757, esp. at 1763). Apparently, also, the doctrine does not operate
if the conveyance contains a genuine mistake: Taitapu Gold Estates Ltd. v.
Prouse [I9161 N.Z.L.R. 825.
83 Limitation Act 1950. s.4.
84 Stamp Duties Act 1954, s.151.
85 Property Law Act 1952, s. 7. See also Law Practitioners Act 1955, s.18,
which makes it an offence for an unaualified person to draw deeds and
certain other documents.
250 THE LAW RELATING TO DEEDS IN NEW ZEALAND
of a deceased estate.86Judicial process and the influence of equity have
removed others-for instance the rule that a deed could only be varied
by another deedaS7
In other cases there has been what may appropriately be called a
"cross-fertilisation" which has resulted in a degree of assimilation.
Rules once thought to be peculiar to deeds have spread to simple
contract, and, conversely, ideas developed in simple contract have
had their influence on the law relating to deeds. The first of these
developments has often been more apparent than real. Many of the
old text books lay down rules which they say apply to "deeds", whereas
even in those times it might have been better to express them as rules
of the general law of contract; the books confined their discussion to
deeds for no other reason than that most important contracts used to
be by deed, and therefore most of the cases involved deeds. But with
the rise of simple contract, it has been affirmed that these rules have a
far wider scope, and apply equally to all forms of contract. Examples
are the principle non est f a c t ~ r n , *the
~ par01 evidence rule,8Dand the
detailed rules for the construction of documents found in books like
Norton and Odger~.~O Similarly the old strict rules against implying
covenants into deeds are now applied in simple contract cases, albeit
in a slightly relaxed form.g1
More troublesome are certain rules which have been embodied in
statute in such terms as to suggest that they apply only to deeds, having
been passed at a time when the deed was the principal means of con-
tracting and conveyancing. Yet by dint of liberal interpretation it has
often been possible for the modem courts to hold that these rules
extend beyond deeds. By way of example, one may refer to a num-
ber of sections in the Property Law Act 1952 which apply, in terms,
to "covenants". A covenant is, technically, a promise in a deed, so
prima facie one is justified in construing these sections as applying only
to deeds, particularly when one finds them alongside other provisions
which apply to "covenants and agreement^"^^ and therefore clearly
have a wider ambit. But the courts have been generous. The tendency

86 For the old rules, see Smith Law of Contracts 4th ed. (1865), 28.
87 For the old rule, see West v. Blakeway (1841) 2 M . & Gr. 729; for the new
Berry v. Berry [I9291 2 K.B. 316, Creamoata Ltd. v. Rice Equalisation Assn.
Ltd. (1953) 89 C.L.R. 286.
88 Included under the heading "Deeds" in 10 Halsbury, Laws of England, 1st
ed., 404. See Chitty, General Principles, 23rd ed., 26, and Foster v. Mackinnon
(1869) L.R. 4 C.P. 704 at 712 where Byles J, expressly holds that the
principle has application to instruments other than deeds.
89 The eighth chapter of Norton is entitled, "Extrinsic Evidence Inadmissible to
Add to Deeds."
90 Almost all the examples given in Norton are drawn from cases on deeds,
for no other reason than that almost all important contracts were at that
time drawn in the form of deeds. The rules are equally applicable to other
written contracts, as is made clear in Odgers, 5th ed., 27.
91 It appears that originally one could not imply a covenant into a deed unless
there were actually words in the deed which gave rise to the inference that
one was intended (Aspdin v. Austin) (1844) 5 Q.B. 671). It is probable
that a similar rule did not apply to simple contracts, at least bare contracts
not containing much detail. But after the abolition of the forms of action,
we find the same test used for both deeds and simple contracts-and, indeed,
for both verbal and written contracts. It is the familiar "necessary intendment"
test of Hamlyn v. Wood [I8911 2 Q.B. 488. See Kelantan Government v.
Duff Development Co. [I9231 A.C. 395 at 419-420 per Lord Pannoor.
92 For instance s.66.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 25 1
is to construe the word "covenant" liberally as including any promise,
whether by deed or not-a suggestion for which there is some slight
authority in the older cases.93Thus, the rules relating to the running
of covenants with landlords' and tenants' interests in leased land have
been held to apply to promises in leases not by deed.g4 This makes
sense, for, considering how few leases are by deed in New Zealand, any
other view could upset much of the well-understood law of landlord and
tenant. (By analogy with these cases, Megarry and Wade suggest that
the general rules about the running of covenants with land probably now
apply also to promises not by deed," a matter of some importance in
New Zealand when it seems likely that a positive covenant of the type
in Smith v. River Douglas Catchment Boardg6cannot be incorporated
in a memorandum of transfer.)
On the same liberal construction, other sections of the Property Law
Act such as 67 and 106 probably apply also to documents other than
deeds. The latter, which implies covenants into leases, was actually held
in an old case, Lyons v. Guy," to apply only to leases by deed, but
the section has since been amended in such a way as to excise the
words principally relied on by the judge in Lyons v. Guy; moreover the
very similar section 107, implying lessor's powers into leases, has since
been held to apply to leases not by and there would seem to be
no reason for treating the two sections differently.
With other sections d the same Act there may be more difficulty,
for they refer in express terms to "deeds", a far less equivocal term than
"covenant". Section 70, providing that in the construction of a deed
the masculine imports the feminine and the singular the plural, could
readily enough be held merely to embody a rule of thumb for eliciting
the parties' intention, which could be extended by analogy to all agree-
ments. But section 65 is not so easy. It provides that a contract by
deed with two persons jointly shall be deemed to include an obligation
to do the act in question for the benefit of the survivor, thus averting
the complicated old rules of law and equity relating to plurality of
creditors.99 This section emphatically applies to obligations by deed
(the term is used twice), and stands with others which refer to "instru-
ments" rather than "deeds".l It will require all the resources of section
5 (j) of the Acts Interpretation Act 1924 to avoid the literal meaning
of this section.
Yet on the question of assimilation of deed and simple contract, two
areas are of such interest and importance that they have been reserved
for separate treatment. In each of them, deed and simple contract have

93 Hayne v. Cummings (1864) 16 C.B.N.S. 421.

94 The sections are Property Law Act 1952 ss. 112 and 113 (which deal with
covenants running with the reversion); ss. 73 and 75 (which, together with
the common law in Spencer's Case (1583) 5 Co. Rep. 16a, constitute the
law on covenants running with the lessee's interest in the land). The cases
are Boyer v. Warbey [I9531 1 Q.B. 234 and Miller v. lenner [I9211 N.Z.L.R.
841 (lessee's interest); Weg Motors Ltd. v. Hales [I9621 Ch. 49 (reversion).
95 The Law o f Real Property, 3rd ed., 729. It used to be thought that covenants
, only ran with land if they were by deed--see Smith, Law of Contract (1865),
26.
96 [I9491 2 K.B. 500.
97 (1899) 18 N.Z.L.R. 124.
98 Harley v. Te Reneti te Whauwhau (1913) 33 N.Z.L.R. 256.
99 For the statement of these rules, see Treitel, Law o f Contract (2nd ed.)
428 and 432, and Martin, The Property Law Act 1905, 32.
1 E.g. ss. 56 and 61.
252 THE LAW RELATING TO DEEDS IN NEW ZEALAND
so interacted that there has been a substantial drawing together of the
rules relating to them.

Estoppel by Deed
The old books all state unequivocally that a party is absolutely
estopped by statements of fact in a deed.2 The rule was originally stated
very widely indeed, and seemed to apply to all statements in the deed,
the only requirement being that they must be precise and certain. Thus
Blackstone: "[A deed] is the most solemn and authoritative act that a
man can possibly perform . . . Therefore a man shall always be estopped
by his own deed, or not permitted to aver or prove anything in contra-
diction to what he has once so solemnly and deliberately a~owed."~
Oddly enough, there was originally doubt as to whether a recital bound:
oddly, for it is in the recitals that one commonly expects to find state-
ments of fact. But it was conclusively held in Bowman v. TayloF in
1834 that a recital did give rise to an estoppel.
It used to be believed that estoppel was peculiar to deeds, and arose
by analogy with the rule that documents under the King's seal were
indisputable. There are many assertions to be found-for instance in
Smith's Law o f Contract5 and the early editions of Chitty6-that a
statement in a simple contract did not estop; it was at most presumptive
evidence.
Yet even if that used to be the position, it clearly no longer is.
"Estoppel by deed" is now something of a misnomer, for it certainly does
apply to documents other than deeds.
In the first place, from a fairly early date, certainly even before
the time when Smith and Chitty were writing, there existed cases showing
that there could be estoppel by agreement not under seal. The principle
on which they proceeded was thus stated in Blackburn on Sale:
When parties have agreed to act upon an assumed state of facts, their rights
between themselves are justly made to depend on the conventional state of
facts and not on truth.7

This rule, which may have grown up through an analogy with estoppel
by deed,s was flourishing in the nineteenth century. Thus, in McCance
v. L. N. W. Railway Co.$ it was held that when horses were given to the
defendant to carry, and the plaintiff signed a declaration that they were
not worth more than £10 each, this agreed value could not later be
disputed. Other examples may be found in the rules that a tenant cannot
dispute his landlord's title,1° or a bailee his bailor's;ll perhaps there

2 Co. Litt. 352a; BI. Comm. 1st ed., bk. ii, 295; Smith, Law of Contract, 5th
ed., 19; see also Holdsworth H.E.L. vol. ix, 154.
3 Supra, n. 2.
4 (1834) 2 A. & E. 278.
5 5th ed., 19.
6 12th ed. (1890) 7-8.
7 3rd ed., 204.
8 See Lewis v. Morelli [I9481 2All E.R. 1021 at 1204 per Harman J., speaking
of aereements to lease.
9 (la&) ~-H.~&-c. 343:
10 Phipps v. Sculthorpe (1817) 1 B. & A. 50; Cooper v. Blandy (1834) 1 Bing.
N.C. 45. Woodfall on Landlord and Tenant. 26th ed.. 15-16.
I1 Stonard v. Dunkin (1810) 2 Camp. 343; dosling v. ' ~ i r n i e(1831) 7 Bing.
339. The same principle applies as between the licensor and licensee of a
patent: Crosley v. Dixon (1863) 10 H.L.C. 293.
THE LAW RELATING TO DEEDS IN NEW ZEALAND Z>j
were originally elements of policy in such decisions,12 but they were
soon commonly explained as resting on this notion of "conventional"
estoppel". This estoppel is based on agreement. The theory is that
once parties have agreed to accept a certain set of facts as true, and
contract on that basis, they will not be allowed to deny that set of
facts, for otherwise they would upset the very basis of the transaction.ls
This estoppel does not require at all, as do some other forms, that the
plaintiff should have been misled; both parties may have known full
well that the facts were not so, yet nevertheless agreed to accept them as
such for the purposes of the agreement.14
In the second place, however wide estoppel by deed may once have
been, there is no doubt that its scope has progressively narrowed over
the years until it today rests on precisely the same ground as this
estoppel by agreement of which we have just spoken. In other words,
although the doctrine seems originally to have been based on the
sanctity of the deed,15 it came later, when the element of bargain made
its presence felt in deed law,16 also to be based on agreement. This can
be seen in three ways: (a) While it had been realised from an early
time that an estoppel by deed was reciprocal, "so as to binde both
parties",17 the refinement was placed on this in 1850 that estoppel by
deed only arises when the statement in question can be said to be the
language of both parties.ls Lord Russell rephrased this in the important
case of Greer v. Kettle19 in terms reminiscent of estoppel by agreement:
"a statement only estops if it is the agreement of both parties to admit
a fact."20 This is not to preclude the possibility that if a statement in a
deed is construed as being that of one party only he may be bound by
it; but if he is, this is not estoppel by deed, but rather simple estoppel
by representation, which requires that the other party should have
been misled, and have acted to his detriment;z1 and such an estoppel
may arise from a statement in a simple agreement just as much as in a
deed.22
(b) Just as is the case with estoppel by agreement, it seems that
estoppel by deed can only arise in respect of facts on which the very
arrangement is based. In Young v. RaincockZSColtman J., in a judgment
12 See Stonard v. Dunkin, supra n. 11, and Cooke v. Loxley (1792) 5 T.R. 4
per Lord Kenyon and Grose J.
13 Blackburn on Sale, supra n. 2. See also the most informative judgment of
Isaacs J. in Dabbs v. Seaman (1925) 36 C.L.R. 538 at 548-552, and Cross
on Evidence, N.Z. ed., 186.
14 Grundt v. Grear Boulder Proprietary Gold Mines Ltd. (1938) 59.C.L.R. 641
at 676 per Dixon J. Cf. Re McCathie [I9691 N.Z.L.R. 393 which is of doubt-
ful validity on this point. The doctrine is obviously relevant to the doctrine of
common mistake in contract; but a discussion of that relationship is beyond
the scope of this article.
15 Blackstone, supra n. 98; Goodtitle v. Bailey (1777) 2 Cowp. 597 per Lord
Mansfield. See also Holdsworth, H.E.L. vol. ix, 154.
16 See the discussion on the element of bargain, infra.
17 Co. Litt. 352a.
18 Stroughill v. Buck (1850) 14 Q.B. 781. The same principle was adumbrated
in Edwards v Brown (1829) 3 Y . & J. 423.
19 [I9381 A.C. 156.
20 Idem. at 167. He quotes Stroughill v. Buck, supra.
21 Compania Naviera Vasconzada v. Churchill & Sim [I9061 1 K.B. 237;
Silver v. Ocean S.S. C o . Ltd. [I9301 1 K.B.416; District Bank Ltd. v. W e b b
[I9581 1 W.L.R. 148; Lowe v. Lombank Ltd. [I9601 1 W.L.R. 196.
22 The first two cases cited in n. 21 supra.
23 (1849) 7 C.B. 310.
254 THE LAW RELATING TO DEEDS IN NEW ZEALAND
later approved by the House of Lords in Greer v. Kettle,24said: "Where
the parties to a deed have agreed upon a certain admitted state of facts
as the basis on which they contract, the statement of those facts . . .
estops from averring the c ~ n t r a r y . " Doubtless
~~ there will always be
room for argument as to whether a certain fact is or is not "basic": but
that is the sort of problem that is very familiar in the law of contract.
In any event, the sorts of statement which have been held to create
estoppel by deed are closely parallel to those giving rise to estoppel by
agreement. There are numerous cases where grantees by deed have been
held disentitled to dispute their grantor's titles whether the transaction
be one of lease,26patentz7 or mortgage;28where borrowers have been
estopped from denying that they borrowed the money in question for
the purposes recited in the deed;29 where grantors have not been
allowed to allege that the property concerned differed from that des-
cribed in the deed.30
(c) While it may have been the case under the old common law that
even statements inserted in a deed by mistake could estop,31equity was
never of that view, holding that if the error was of such a kind that the
equitable remedy of rectification would lie, then the statement did not
estop.32Since the amalgamation of law and equity it is the latter view
which prevails. This has been held in several New Zealand cases,3sand
reaffirmed by the House of Lords in Greer v. Kettle.34It comes to this,
that estoppel by deed now only applies where the statement in the deed
is an accurate expression of what the parties have agreed will be taken
as true for the purposes of their transaction.
Thus Spencer Bower and Turner on Estoppel by Representation,
following the judgment of Isaacs J. in Dabbs v. Seaman,35settles on this
definition :
24 [I9381 A.C. 156.
25 7 C.B. at 338.
26 Parker v. Manning (1798) 7 T.R. 537; Taylor v. Needham (1810) 2 Taunt.
278.
27 Bowman v. Taylor (1834) 2 A. & E. 278.
28 Doe d. Levy v. Horne (1842) 3 Q.B. 757.
29 Hill v. Manchester & Salford Waterworks (1831) 2 B. & A. 544; Horton
V. Westminster Improvement Commissioners (1852) 7 Ex. 780.
30 Roberts v. Karr (1809) 1 Taunt. 495; Jones v. Williams (1817) 2 Stark.
51; Dabbs v. Seaman (1925) 36 C.L.R. 538. For other instructive cases on
estoppel by deed see Carpenter v. Buller (1841) 8 M . & W. 209; Willoughby
V. Brook (1599) Cro. Eliz. 756; Hart v. Buckminster (1648) Style 103;
Pilbrow v. Pilbrow's Atmospheric Railway & Canal Propulsion Co. (1848)
5 C.B. 950; Wiles v. Woodward (1850) 5 Ex. 557. The recent New Zealand
decision McCathie v. McCathie [I9711 N.Z.L.R. 58 affirms the principle that
the doctrine only applies in a claim on the deed itself.
31 See Lainson v. Tremere (1934) 1 A. & E. 792.
32 Scholefield v. Lockwood (1863) 4 de G. J. & S. 22; Brooke v. Haymes
(1868) L.R. 6 Eq. 25; Empson's Case (1870) L.R. 9 Eq. 597. It is Greer v.
Kettle, infra, which lays down the requirement that the mistake must be
one for which rectification lies; the other cases make no mention of this.
In fact the requirement is not as restrictive as may appear, for rectification
is not a narrow remedy. The comment might well be made that if a statement
by mistake does not give rise to an estoppel, the doctrine of estoppel by deed
is reduced to a very narrow compass indeed.
33 Daniel1 v. Sinclair (1881) N.Z.P.C.C. 140; Firmin v. Public Trustee (1889)
7 N.Z.L.R. 277; Pearce v. Holmes (1902) 21 N.Z.L.R. 544; Buckland v.
C.S.D. [I9541 N.Z.L.R. 1194; In re McCathie [I9691 N.Z.L.R. 393, affd.
[I9711 N.Z.L.R. 58.
34 [I9381 A.C. 156.
35 (1925) 36 C.L.R. 538 at 548-552.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 255
Estoppel by deed, then, arises where it appears from the formal writing of
the parties that they have agreed to admit as true, or to assume the truth of,
certain facts as the conventional basis upon which they have entered into . . .
relations . . . In modern times the estoppel which Coke considered the
peculiar consequence of contract under seal has readily been held to arise,
in appropriate circumstances, from any formal writing . . . 36
In any case, the question of whether there has been such an assumption
will be a question of construction in all the circumstances; doubtless
policy factors will play their part, as one assumes they already have in
the landlord and tenant ~ i t u a t i o n . ~ ~
But the chief point of all this is that nowadays "estoppel by deed"
and "estoppel by agreement7' are exactly the same thing. It may be
better to adopt the expression of Six Alexander Turner and combine
them both under the omnibus heading of "conventional e s t ~ p p e l . " ~ ~
There seems no longer to be a species of estoppel which is peculiar to
deeds.
The element of bargain
The essence of the simple contract is bargain, a notion which involves
two ideas-the first that both parties have consented to the transaction,
and the second that each has supplied consideration to the other. But,
in traditional theory, a contract by deed does not depend on bargain
at all. The party or parties are bound because they have executed a
deed with solemn formality, and not because they have struck a bargain.
This truism remains correct, and nothing in this article should be taken
as minimising its importance. It is still the outstanding point of departure
between deed and simple contract. It results in two clear propositions:
that a promise by deed is enforceable even if unsupported by considera-
t i ~ n and
, ~ ~that one party to a deed may be bound even though the
other has not consented to the transaction.
The first of these propositions is self-explanatory. The second,
although closely related, deserves illustration. The theory is that a man
can be bound by a deed as soon as he has signed and delivered it,
despite the fact that the other party has not yet appended his signature.
The existence of the obligation depends on the objective acts of signing
and delivery, not upon consent. This means that the simple contract
rules of offer and acceptance have little place in deed law, as is clearly
illustrated by Naas v. Westminster Bank.40 A deed of settlement was
entered into between A and B, by which A had the option of executing
a later deed by way of variation of the first. A did execute such a deed;
B, although named as a party to it, failed to sign. It was held that the
later deed bound A immediately upon delivery by him. The deed was
absolute and unconditional, and had not been delivered as an escrow.
The House of Lords reversed the decision of the Court of Appeal,4l

36 2nd ed., 146-148. Chapter VIII of this book contains, with respect, an excel-
lent survey of estoppel by deed. See now the discussion by Turner J. in
McCathie v. McCathie [I9711 N.Z.L.R. 58 at 69-70.
37 Supra n. 12.
38 Spencer Bower and Turner, Estoppel by Representation 2nd ed., Ch. VIII.
See also Cross on Evidence, N.Z. ed., 184. Note however that Phipson on
Evidence still prefers to treat estoppel by deed and estoppel by agreement
separately: 10th ed., 846-851.
39 Supra, n. 80.
40 [I9401 A.C. 366.
41 Sub nom. Westminster Bunk v. Wilson [I9381 3 All E.R. 652.
256 THE LAW RELATING TO DEEDS IN NEW ZEALAND
where two members of the courP2 had held that, by analogy with the
law relating to offer and acceptance in simple contract, the deed was
not binding until accepted by B. Lord Wright commented on this view:4s
I think is is misleading to import into the law of deeds analogies from an
entirely different region of law, that of simple contracts. They, indeed, are
consensual, and depend on a meeting of minds in a common intent, evidenced
.
by words or conduct . . [This deed] depended, not on the other party's
consent, any more than on mutual consideration. It depended on the act
of the settlor in executing the settlement.44

This has interesting repercussions. It means that the parties to a

deed may become bound at different times, something which is quite
impossible in the case of a simple contract. It also involves that certain
types of escrow are possible which have no parallel in simple contract.
For example, if A executes a deed and delivers it conditionally on B's
executing it also, A will not be able to revoke his execution, at least
until a reasonable time has elapsed without the other party appending
his signature;45he is bound by the escrow, albeit only conditionally.
Had this been a simple contract, however, he could have revoked at any
time before "acceptance" by the other, for his conduct would then
amount only to an "offer".46
There is evidently a close connection, on which it would be interesting
to speculate, between this piece of theory and the view of Bramwell B.
in Wake v. Harrop7 that whereas in the case of a simple contract the
writing is only evidence of the contract, which is constituted by their
agreement, in the case of a deed the writing is the contract.48

42 Clauson and Scott L.JJ.

43 [I9401 A.C. at 403.
44 See also Bowker v. Burdekin (1843) 11 M . & W. 128; Re Vanstone [I9551
N.Z.L.R. 1079; Federal Commissioner of Taxation v. Taylor (1929) 42
C.L.R. 80; Xenos v. Wickham (1867) L.R. 2 H.L. 296 at 312 per Blackburn
J. The decided cases all involve deeds of trust or present assignment of
property. No doubt the same principle applies to deeds containing covenants
of future obligation, but then an interesting question would arise as to
whether the non-signatory could sue on the covenant. Presumably he could
if, although not a signatory, he could nevertheless be described as a
"party" to the deed, or if, by virtue of the Property Law Act 1952, s.7, he
was a person for whose benefit the covenant was made.
45 Beesly v. Hallwood Estates Ltd. [I9611 Ch. 105. There are types of escrow
which are closely paralleled in simple contract-those where both parties'
covenants are conditional upon the same event happening. There would seem
to be no difference. between these and a contract subject to a condition pre-
cedent as in Pym v. Campbell (1856) E. & B. 370. Cf. however Watts in
3 A.L.J. 11. His arguments that there is a difference are highly theoretical,
and based on the doctrine in Wake v. Harrop. (See infra nn. 47 and 48, and
the criticism therein contained). His view that to establish a condition
precedent to a simple contract one must prove a collateral contract is, with
respect, doubtful.
46 It also follows that a man may be bound by a deed even though the bene-
ficiary is unaware of its existence: Leech's case (1692) Carth. 250; Xenos
v. Wickham loc. cit. supra n. 39. The best short statement of the differences
in theory between a simple contract and a deed is to be found in Salmond
and Williams on Contract, 12-18.
47 (1861) 6 H. & N. 768 at 774-775. See Phipson on Evidence, 10th ed., 644.
48 One wonders just how much this theory was believed. If it were true, the
par01 evidence rule should have been applied much more stringently to
deeds, which does not appear to have been the case; further, once the
remedy of rectification had been developed by equity and applied to deeds,
the very basis of the theory would seem to have disappeared.
THE LAW RELATING TO DEEDS I N NEW ZEALAND 257
However, despite all this, it would be misleading to say that the
notion of bargain is totally absent from the law of deeds. And it is
believed that the rise of simple contract, with its emphasis on bargain
and consideration, has brought about an increasing intrusion of the
notion into deeds. There has, of course, been nothing approaching an
assimilation of deed with simple contract in this respect; the only point
one is trying to make is that the law of deeds, despite traditional theory,
does pay some attention, and apparently an increasing attention, to the
idea of bargain.
This may be demonstrated in a number of ways, but in none more
clearly than a study of the law relating to breach of covenant. When
one party to a deed has broken a covenant, the question arises whether
the other party is thereby released from his covenants. The early view
was an interesting onea40 The courts seemed to treat the problem
without much concern at all for ideas of bargain or consideration; they
tended to rely rather on the concept of condition. The old cases seem
to modern eyes strange, and at times even rather unfair. Ware v.
ChappelPo in 1649 provides a good example. Ware covenanted to raise
500 soldiers, and bring them to a certain port: Chappell covenanted
to find shipping and victuals for them. Chappell, having been sued on
his covenant, pleaded that Ware had not raised the soldiers. The plea
was held bad; Ware's breach would only excuse Chappell if performance
by Ware was a condition precedent to Chappell's liability, and that was
held not to be the case. Just what rendered a covenant a condition
precedent always involved a certain degree of mystique,51 but it does
seem that the question of time was the principal factor; what we would
call the element of return or consideration was not overtly52treated as
relevant. For instance, if A promised to transfer land on 1 July, where-
upon B was to pay A, A could not sue B on his covenant without first
transferring the land, just because it was clear from the wording of
the deed that the transfer was to come first in time. The question of
whether one covenant was to be performed before another was a ques-
tion of construction. As Lord Mansfield said in Kingston v. Preston: 5s
The dependence or independence of covenants was t o be collected from the
evident sense and meaning of the parties, and that, however transposed they
might be in the deed, their precedency must depend on the order in time in
which the intent of the transaction requires their performance.
The determination of this question led to some subleties which bewilder
the modem mind.s4
Yet the rise of simple contract brought with it the idea of considera-
tion (which may well have been latent in the approach to deeds all

49 For a survey of this problem, see Morison, The Principles of Rescission o f

Contracts, Chapter V .
50 (1649) Style 186.
51 Sergeant Williams evidently thought so too-see his notes to Pordage v.
Cole (1607) 1 Wms Saund. 319 where he s ~ e a k sof the "artificial and subtle
distinc'tions" in the decisions.
52 It may have subconsciously affected the decisions.
53 Cited (1772) Douglas 689.
54 The following cases provide the best illustrations of the old approach:
Pordage v. Cole (1607) 1 Wms Saund. 319; Ughtred's case (1591) 7 Co.
Rep. 9b; Russen v. Coleby (1734) 7 Mod. 236; Walker v. Harris (1793)
1 Anst. 245. See also the detailed rules in the notes appended to Pordage
v. Cole (supra), and Norton, Ch. XXX. Note the strange result obtained in
Peeters v. Opie (1671) 2 Wms Saund. 742 by the use of similar reasoning.
258 THE LAW RELATING TO DEEDS IN NEW ZEALAND
along) and by the late eighteenth century that idea was beginning to
have effect on the determination of the question of whether the breach
of a covenant in a deed excused the other party from performance. A
milestone is Boone v. Eyre in 1777, where Lord Mansfield laid down
this principle :55
The distinction is very clear, where mutual covenants go to the whole o f the
consideration on both sides, they are mutual conditions, the one precedent to
the other. But where they go only to a part, where a breach may be paid
for in damages, there the defendant has a remedy on his covenant, and
shall not plead it as a condition precedent.
It was not long before this test was extended, and the proposition
developed that if a breach of covenant went to the substantial part of
the consideration, the innocent party was relieved from his ~ b l i g a t i o n . ~ ~
So efficiently did the notion of consideration temper the judges' think-
ing, that as early as 1792, in Goodisson v. N ~ n n Lord , ~ ~ Kenyon was
heard to say of the older cases which had paid no attention to it that
they "outraged common sense", and were "absurd". So ideas of con-
sideration and bargain spread to deeds, and became the overt basis of
decision in questions of breach.58
Unfortunately, however, there was cross fertilisation, for the doctrine
of condition precedent infiltrated strongly into the law of simple con-
tract. The doctrine is not wholly out of place there,59but a great deal too
much was made of it, particularly by certain judges.60 In many cases
where a decision could have been reached on the simple ground that a
breach went to the substance of the consideration, it was found neces-
sary to resort to the tautology that the term broken was therefore a
condition p r e ~ e d e n t .There
~ ~ were also many clumsy and quite unneces-
sary attempts to apply the rules in Pordage v. Cole to simple contract.62
But today simple contract has largely freed itself from the trammels of
"condition", a course which some judges had advocated all along.63
However the converse has not happened; the law relating to deeds has
retained its connection with consideration, and there seems to be little
difference now between the principles applied in deed and simple
contract.64
55 Boone v. Eyre (1777) 1 H.Bl. 273n.
56 Ellen v. Topp (1851) 6 Ex. 424.
57 Goodisson v. Nunn (1792) 4 T.R. 761.
58 See also Campbell v. Jones (1796) 6 T.R. 570; Duke of St Albans v. Shore
(1789) 1 H.Bl. 270. See the use of the concept of consideration in an early
contract case, Thorp v. Thorp (1701) 12 Mod. 455. This was an action on
the case. not an action in covenant.
59 See its recent appearance in United Dominions Trust Ltd, v. Eagle Aircraft
Services Ltd. [I9681 1 W.L.R. 74.
60 One of the chief offenders was Blackburn J.
61 See. for instance. Graves v. L e ~ a(1854) 9 Ex. 710. White v. Beeton (1861)
7 H. & N. 42, Simpson v. ~ r u i ~ i(1872)
n L.R. 8 Q.B. 14; Bettini<. ~y'e
(1876) 1 Q.B.D. 183; Poussard v. Spiers (1876) 1 Q.B.D. 410; Havelock v.
Geddes (1809) 10 East 555.
62 For example in Simpson v. Crippen and Bettini v. Gye, supra n. 61.
63 See Hoare v. Rennie (1859) 5 H. & N. 19 at 27 per Pollock C.B.; Honck v.
Muller (1881) 7 Q.B.D. 92 at 100 per Bramwell L.J.: "Pordage v. Cole has
absolutely nothing to do with the case. That was an action on a specialty.
This is not."; Bradford v. Williams (1872) L.R. 7 Ex. 259 at 261 per Martin
B.: "Now I think the words 'condition precedent' unfortunate. The real
question is what in each instance is the substance of the contract?" It seems
that the Exchequer judges were much more progressive on this point than
those in Queen's Bench.
64 See for instance Huntoon v. Kolynos Ltd. [I9301 1 Ch. 528.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 259
The cases on breach are only one example of the influence of notions
of bargain and consideration on the law of deeds. There are many
others, some dating from an early time, perhaps even before the rise of
simple contract.
For one thing, equity was always reluctant to enforce a deed which
did not embody a true bargain. For instance, it has long been established
that equity will not grant specific performance of a gratuitous promise,
even one by deed.65 Hand in hand goes the doctrine that equity will
not perfect an uncompleted voluntary a ~ s i g n m e n t . ~ ~
There is other evidence in the common law itself. While the common
law certainly does not require consideration to render a deed binding,
most inter partes deeds do in fact embody bargains: i.e. they contain
reciprocal mutual promises. Even the common law has for a long time
recognised and, to some extent, protected this element of bargain where
it exists. Firstly, a person not a party to such a deed could not sue on
it at common law,6i and even the earliest cases suggest that this rule
was based on nothing more than the essential quality of bargain. In
Scudamore v. V a n d e ~ t e n ein~ ~1579, the phrase "agreement rwiprocall"
is used to explain the rule.
Secondly, if a deed clearly embodies a bargain, the common law will
not enforce only part of that bargain. So if one party's promise fails
for some reason, the common law will not enforce the other's part, for
to do so would be to hold that other to a quite different arrangement
from that which he intended.6s This has been the law for some con-
siderable time, although the familiarity with the concept of considera-
tion bred by the growth of simple contract has refined it, and made it
more articulate. Two illustrations will suffice. (a) If one party's coven-
ant is contrary to public policy, the other's will not be enforced. As
Smith preferred to express it in 1865, "the deed is invalidated by the
taint".70 A more recent refinement holds that if only part of one party's
obligations are thus contrary to public policy, the deed will still be
totally unenforceable if the offensive portion is the substantial part of
the consideration for the other's promise; in other words, a tainted
promise will only be severed if the deed is still left a reasonable arrange-
ment between the parties.?l The rule here is precisely the same for both
deed and simple contract; indeed Bennett v. Bennetti2 and Goodinson
v. G o ~ d i n s o n ~
commonly
~, taught as illustrating a general principle of

65 Jefferysv. Jeflerys (1841) Cr. & Ph. 138; Groves v. Groves (1829) 3 Y . & 3.
163; Kirk v. Greaves [I9241 N.Z.L.R. 260. In such cases, the law may never-
theless award damages: Kirk v. Greaves, supra; Cannon v. Hartley [I9491
1 Ch. 50.
66 Hanbury, Modern Equity, 8th ed., Ch. 6.
67 See Burrows, "Section 7 of the Property Law Act 1952", [I9691 N.Z.L.J. 676.
68 Set out in Norton, 23. See also Storer v. Gordon (1814) 3 M..& G. 308.
69 See Chitty on Contracts, General Principles, 21st ed., 10. (Omitted from the
latest edition.) Cf. however May v. Trye (1677) 1 Freeman 447. However this
case as reported is difficult to understand. Compare the report in 3 Keble
780.
70 Law of Contract, 4th ed., 16 and 18. See Collins v. Blantern (1767) 2 Wils.
341, Bunn v. Guy (1803) 4 East 190, and the other cases cited by Smith,
Law o f Contract, 4th ed., 16-18.
71 It seems, even then, that severance is only possible if the illegality is of a
relatively inoffensive kind.
72 [I9521 1 K.B. 249.
73 [I9541 2 Q.B. 118.
260 THE LAW RELATING TO DEEDS IN NEW ZEALAND
the law of contract, are in fact both cases involving deeds.74 (b) If
one party signs a deed in the expectation that the other party will sign
also, and the latter fails to do so, there are at least two grounds on
which the court may hold the first party not bound by his signature.
In the first place, it may find that the first signor did not intend to be
bound until all parties had executed the document. That is to say, it may
find that the document is an escrow until the condition of signature by all
parties has been s a t i ~ f i e d This
. ~ ~ conclusion will surely be fairly readily
reached in the case of a deed embodying reciprocal obligations. If,
however, the facts will not support such a conclusion, there is an alterna-
tive escape route. It lies in the rule that if one party signs a deed "in
the faith" that the other party will also sign, the court will not enforce it
against him in the event of the other's failure to sign if "the obligation
sought to be enforced is different from the obligation which would have
been enforceable if the non executing party had executed the deed,"
or, apparently, if such enforcement would lead to inj~stice.?~ This will
always be the case if a signatory, having signed on the faith of getting
some return for his promise, is deprived of that return by the other
party's refusal to sign. A gratuitous promise is a very different thing
from a bargain.77

D. CONCLUSION
The conclusions drawn from this survey may be shortly stated. The
deed is no longer the all-important legal document that it used to be.
There are a few cases where it remains necessary to effect a conveyance
or perform a legal act, but, mainly as the result of statute, lesser docu-
ments are sufficient to accomplish many conveyancing transactions.
More than that, as a result of the intervention of equity, sometimes
even where a deed is strictly required by statute a document not in the
form of a deed may nevertheless have substantial legal effect.
Likewise, there are few situations today where a contract has to be
by deed. Certain special rules still apply to contracts by deed, but they
are dwindling in number and some of those which remain are of
minimal importance: the liability to stamp duty, for instance. Many
such rules have either been completely abolished, or else extended by

74 Note the attempt in Smith, Law o f Contract, 4th ed. (1865), 18-19, to state
the rule as it was then understood: "Even if there were several considerations,
and any one of them was illegal, it avoids the whole instrument . . .
Though it is just the reverse where the consideration is good, and there are
.
several covenants, some legal, some illegal." See Wallis v. Day (1837)
2 M . & W. 273.
75 Beesly v. Hallwood Estates Ltd. [I9611 Ch. 105; Re Vanstone [I9551
N.Z.L.R. 1079 esp. at 1090-1091 per Barrowclough C.J.; Ani Waata v. Grice
(1883) N.Z.L.R. 2 C.A. 95 at 112 per Richmond J. See also Moore v.
Irwin [I9261 4 D.L.R. 1120.
76 Naas v. Westminster Bank [I9401 A.C. 366 at 376 per Lord Maugham; at
391 per Lord Russell; at 405 per Lord Wright; at 410 per Lord Romer; Re
Vanstone [I9551 N.Z.L.R. 1079 at 1095 per Barrowclough C.J.
77 One may note here the converse rule that a party to a deed who has not
signed will be bound by the deed if he has accepted the benefit of the other
party's performance. This is a simple application of the principle that he
who takes the benefit must also take the burden. See Macdonald v. Twiname
[I9531 2 Q.B. 304 at 316; Re McCathie [I9691 N.Z.L.R. 393 (and note the
cases cited at 397-398). See the more restrictive approach of the N.S.W.
Spreme Court in Commonwealth Dairy Produce Equalisation Committee Ltd.
v. McCabe (1938) S.R. (N.S.W.) 397 at 402-403 per Jordan C.J.
THE LAW RELATING TO DEEDS IN NEW ZEALAND 26 1
the courts to simple contracts as well-even if that may sometimes
involve doing violence to the words of an Act of Parliament. There has
been a movement the other way as well: ideas of bargain which had
their growth in simple contract have spread to the deed, and modified
certain of the rules applicable to deeds.
There are therefore many situations where, although a deed may be
used, no real advantage is gained through its use: no different legal
result will be obtained, and the same legal principles will be applied.
In the light of this decline of the deed from its former pre-eminent
position, it is perhaps not surprising that in New Zealand, with the
abolition of the requirement of the seal, a deed does not even look
very different from any other written document; and there is some
irony in the fact that there is occasionally doubt today as to whether a
particular document is a deed or not.