PRESENT: All the Justices

THE GAME PLACE, L.L.C., ET AL.
                                                                       OPINION BY
v. Record No. 170631                                            JUSTICE D. ARTHUR KELSEY
                                                                      MAY 10, 2018
FREDERICKSBURG 35, LLC


           FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                             Gordon F. Willis, Judge

       A commercial lessor, Fredericksburg 35, LLC, sued a lessee, The Game Place, L.L.C., 1

for unpaid rent under a 15-year lease after The Game Place vacated the leasehold prior to the

expiration of the 15-year term. The Game Place demurred, claiming that the lease was

unenforceable under the Statute of Conveyances, Code § 55-2, because it did not have either the

common-law formality of a seal or the relaxed seal substitutes available under Code § 11-3.

       Reasoning that “[t]he law looks at substance not form,” J.A. at 9, the trial court rejected

The Game Place’s arguments and overruled the demurrer. After a bench trial, the court entered

final judgment against The Game Place and its guarantor, Robert C. Lightburn. Finding the 15-

year lease unenforceable as a matter of law, we reverse and enter final judgment in favor of The

Game Place and Lightburn. 2

                                                 I.

       In September 2000, a real-estate partnership, Amusement-Central Park Limited

Partnership, leased space in a commercial shopping center to Nicol, Inc. The parties executed a



       1
        Throughout this opinion, we refer to “The Game Place, L.L.C.” as “The Game Place”
and “Fredericksburg 35, LLC” as “Fredericksburg 35.”
       2
        Judge Herbert M. Hewitt entered the order denying the demurrer and rejecting The
Game Place’s argument regarding the Statute of Conveyances, see J.A. at 16-17, and Judge
Gordon F. Willis entered the final judgment following a bench trial on unrelated issues, see id. at
253-54.
15-year lease requiring monthly payments. A year later, Amusement-Central Park Limited

Partnership conveyed property which included the leasehold space to Carl D. Silver. See id. at

194. That same year Silver re-conveyed the property to the Carl D. Silver Company. See id. at

235-37. After selling the property, Amusement-Central Park Limited Partnership dissolved itself

in 2001 and filed a certificate of cancellation with the State Corporation Commission in January

2002. See id. at 239.

       In November 2002, the lessee, Nichol, Inc., assigned its rights and obligations under the

lease to The Game Place. 3 See id. at 224-25. The lease required the written consent of the

landlord to any such assignment. Though Amusement-Central Park Limited Partnership had

ceased to legally exist, it executed the assignment as “LANDLORD” with the signature line

stating “By: Silver GP, Inc., General Partner.” Id. at 225 (altering capitalization). 4 The

narrative becomes more tangled when, in December 2002, the Silver Company conveyed the

property to Fredericksburg 35. See id. at 193-96.

       The lessor-lessee relationship nonetheless continued without contest until years later

when The Game Place found itself unable to keep up with the rent payments. In May 2014, The

Game Place vacated the premises and terminated what it characterized as “its month-month

periodic tenancy.” R. at 688. The Game Place was current on its rent at that time. Rejecting

The Game Place’s characterization of the lease as month-to-month, Fredericksburg 35 responded

with a suit seeking unpaid rent that had accrued since The Game Place had vacated the leasehold

space. The Game Place demurred, arguing that the lease was unenforceable under the Statute of



       3
        Lightburn executed the assignment as “GUARANTOR,” with the signature line stating,
“The unconditional guaranty of: [signature] Robert C. Lightburn.” Id. at 225.
       4
          In contrast, Amusement-Central Park Limited Partnership’s certificate of cancellation
identifies ACP Management I, LLC as the “Sole General Partner.” Id. at 239.
                                                 2
Conveyances because it did not contain a seal as required by the common law for a deed or one

of the substitutes for a seal available under Code § 11-3. The trial court overruled the demurrer.

Following a bench trial, the court entered final judgment against The Game Place and Lightburn,

jointly and severally, ordering them to pay $68,610.44 in unpaid rent and $17,152.61 in attorney

fees pursuant to a lease provision allowing the landlord to recover 25% of the claim as attorney

fees. See J.A. at 211, 253.

                                                II.

       On appeal, The Game Place contends that the trial court erred as a matter of law when it

enforced the 15-year lease and, instead, should have recognized that the lessor-lessee relationship

could only be enforced as a month-to-month tenancy. 5 We agree.

                              A. THE STATUTE OF CONVEYANCES

       The Statute of Conveyances states in pertinent part that “[n]o estate of inheritance or

freehold or for a term of more than five years in lands shall be conveyed unless by deed or will.”

Code § 55-2; see Humble Oil & Ref. Co. v. Cox, 207 Va. 197, 201, 148 S.E.2d 756, 760 (1966)

(“The Lease purported to demise property for a term of more than five years, and Virginia law

requires that such a demise be made in the form of a deed.”). That provision’s “statutory

antecedents date back to 1705” and it appears to be “based in part upon section three of the

English Statute of Frauds, 29 [Car. II] c.3 (1677).” Burdette v. Brush Mt. Estates, LLC, 278 Va.

286, 293, 682 S.E.2d 549, 553 (2009) (quoting Burns v. Equitable Assocs., 220 Va. 1020, 1031,




       5
         The Game Place also contends that the trial court erred when it entered judgment
against Lightburn as guarantor of the assignment, see supra note 3, because Amusement-Central
Park Limited Partnership could not consent to the assignment of the lease to The Game Place as
it was no longer the landlord, rendering Lightburn’s guaranty “of no effect” and also void for
lack of consideration. See Appellants’ Br. at 14-18. Given our holding, we need not address this
contention.
                                                 3
265 S.E.2d 737, 744 (1980)); see 3 William Waller Hening, The Statutes at Large 318-19 (1812)

(reprinting 1705 Act).

       When applicable to an inter vivos conveyance, the Statute of Conveyances specifically

requires a “deed” to effect the transfer. Code § 55-2. When a statute employs a common-law

term of art, the General Assembly “is presumed to have known and to have had the common law

in mind in the enactment of a statute” and we must “giv[e] effect to both ‘unless it clearly

appears from express language or by necessary implication that the purpose of the statute was to

change the common law.’” Jenkins v. Mehra, 281 Va. 37, 44, 704 S.E.2d 577, 581 (2011)

(citation omitted); see also Tvardek v. Powhatan Vill. Homeowners Ass’n, Inc., 291 Va. 269, 276

n.4, 784 S.E.2d 280, 283 n.4 (2016) (“A statute touching on matters of common law must ‘be

read along with the provisions of the common law, and the latter will be read into the statute

unless it clearly appears from express language or by necessary implication that the purpose of

the statute was to change the common law.’” (citation omitted)).

                         B. THE ENGLISH COMMON LAW OF SEALED DEEDS

       It is “almost impossible to trace the history of seals back to the time when they were first

employed.” 1 Robert T. Devlin, The Law of Real Property and Deeds § 242, at 345 (3d ed.

1911). Chancellor Kent found the common-law custom of sealing documents to be

“corroborated by the usages and records of all antiquity, sacred and profane.” 4 James Kent,

Commentaries on American Law 444-45 (1830); see also 1 Devlin, supra, § 242, at 345-46

(describing the ancient origins of sealing); 2 John B. Minor, Institutes of Common and Statute

Law 727-28 (4th rev. ed. 1892) (same).




                                                 4
       For our purposes, the historical analysis focuses on English common law at the time of

the Founding. 6 At that time, a deed had certain defined characteristics. One of them was that it

had to be a “sealed” writing. See 2 William Blackstone, Commentaries *295. 7 The seal was

“deemed essential” and was “requisite” to the conveyance of land by deed. 4 Kent, supra, at

443-44. We have never taken issue with this view. “One of the essential requisites of a deed,”

we have emphasized, “is that it shall have a seal affixed thereto.” Smith v. Plaster, 151 Va. 252,

258, 144 S.E. 417, 419 (1928). 8 The historic justification for the seal requirement in deeds of

conveyance was two-fold, with both explanations stemming from the goal of orderly conveyance

of real property that has always been integral to the Anglo-American legal tradition.

       First, “affixing a seal to a signature to a deed gives solemnity” to this uniquely important

transaction. Bank of Chatham v. Arendall, 178 Va. 183, 192, 16 S.E.2d 352, 355 (1941). We




       6
         See In re: Brown, 295 Va. 202, 208 & n.1, 810 S.E.2d 444, 447 & n.1 (2018)
(describing Virginia’s reception of the common law through Code § 1-200 in 1776); Tvardek,
291 Va. at 274 n.1, 784 S.E.2d at 282 n.1 (same).
       7
          At common law, a seal was “an impression upon wax or wafer, or some other tenacious
substance capable of being impressed.” 4 Kent, supra, at 444; see also 3 Sir Edward Coke,
Institutes of the Laws of England 169 (1797) (translation of original text); 2 Sir Frederick
Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I
224 (2d ed. 1898). Prior to the Norman Invasion, the Saxons used “the sign of the cross,”
accompanied by their signatures if they were literate, as a solemn identifying mark. See 2
Blackstone, supra, at *305-06.
       8
          See also Burnette v. Young, 107 Va. 184, 191, 57 S.E. 641, 643 (1907) (noting that “[i]t
is requisite . . . that the party whose deed it is should seal it,” and that “a seal is essential to a
deed”) (quoting 2 Minor, supra, at 727)); Penn v. Hamlett, 68 Va. (27 Gratt.) 337, 341-42 (1876)
(“One of the essential requisites constituting a deed is, that it should be written, as well as signed,
sealed and delivered.”). See generally Christopher G. Tiedeman, An Elementary Treatise on the
American Law of Real Property § 808, at 636-37 (1885) (“The word deed means an instrument
under seal, and, except in those States where seals are by statute dispensed with, no instrument
can be called a deed without being sealed, whatever may be the intention of the parties.”); 3
Emory Washburn & John Wurts, A Treatise on the American Law of Real Property § 2128, at
245 (6th ed. 1902) (“The sealing of deeds was indispensably necessary at common law, in order
to their validity, at least after the time of Edward III.”).
                                                  5
inherited this view from the Normans, whom Blackstone described as “a brave but illiterate

nation” responsible for bringing the tradition of seals to England after the 1066 invasion by

William the Conqueror. See 2 Blackstone, supra, at 305-06. 9 The Normans “used the practice

of sealing only, without writing their names: which custom continued, when learning made its

way among them, though the reason for doing it had ceased.” Id. “[S]ealing alone,” Blackstone

reports, “was sufficient to authenticate a deed” even if the deed was unsigned. Id. at 306. Seals

acquired this importance in part because “they obviously made the evidence of the [instrument]

better, in so far as the seal was more difficult to forge than a stroke of the pen.” Oliver Wendell

Holmes, Jr., The Common Law 272 (1923). The seal thus provided the highest form of certitude

for one of the most important legal transactions. 10

       Second, “[a]t common law a sealed instrument imposed peculiar liabilities.” Preston v.

Hull, 64 Va. (23 Gratt.) 600, 604 (1873). One of these liabilities, though somewhat unclear in its

origins, 11 was the enforcement of sealed instruments even in the absence of bilateral

consideration. “In a contract under seal, a valuable consideration is presumed from the solemnity

of the instrument, as a matter of public policy and for the sake of peace, and presumed




       9
         Because “much of the population was illiterate and unable to sign their names,” a
person’s seal could “serve much the same purpose as a signature. When attached to a document,
it became an identification of the person executing it.” 14 Richard R. Powell, Powell on Real
Property § 81A.04[1][f], at 81A-57 (Michael Allan Wolf ed., 2017).
       10
          See Penn, 68 Va. (27 Gratt.) at 341 (“Deeds are of a higher nature than parol contracts,
and there are great and important distinctions between the operations and effect of these different
species of contracts.”).
       11
          Experience tells us, of course, that we cannot expect “that the particular reason of
every rule in the law can at this distance of time be always precisely assigned.” 1 Blackstone,
supra, at *70. We search the history of our laws not laboring under the illusion of achieving
absolute certitude but to discover the most probable view of our jurisprudential ancestors. See
generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
399-402 (2012).
                                                  6
conclusively . . . .” Norris v. Barbour, 188 Va. 723, 736, 51 S.E.2d 334, 339 (1949) (emphases

in original). 12 With a sealed instrument, therefore, “it d[id] not matter how the obligation arose,

or whether there was any consideration for it or not.” Holmes, supra, at 270. 13 An instrument

“under seal was no longer a promise well proved; it was a promise of a distinct nature, for which

a distinct form of action came to be provided.” Id. at 272-73; see 9 W.S. Holdsworth, A History

of English Law 155-59 (1926) (describing the origins of the doctrine of estoppel by deed in the

common-law seal requirement).

       Thus, “the seal furnished a convenient means by which an intentional promise,

voluntarily made (i.e., without consideration) could be binding.” 1 Samuel Williston & Richard

A. Lord, A Treatise on the Law of Contracts § 2:16, at 175 (4th ed. 2007). Though the seal

requirement, when unsatisfied, “occasionally defeated the intent of the parties, the seal served its

purpose of permitting obligors to bind themselves without consideration.” Id. at 176-77.

Professor Williston recognized the need for and the ongoing development of legislative reforms



       12
            See also Watkins v. Robertson, 105 Va. 269, 279, 54 S.E. 33, 36 (1906) (same); 3
Minor, supra, at 139 (2d rev. ed. 1895) (same). We acknowledge the criticism of some scholars
that “[i]t is misleading to say, as courts have sometimes done, that a seal ‘imports consideration’
or that it raises a ‘presumption of consideration.’ As we have seen, the action of covenant long
antedated the general notion that an unsealed promise was enforceable if supported by
consideration. Far from deriving its effect from the doctrine of consideration, the seal was a
distinct and independent alternative basis for the enforcement of a promise.” 1 E. Allan
Farnsworth, Farnsworth on Contracts § 2.16, at 154 (3d ed. 2004 & Supp. 2018-1) (footnotes
omitted). For our purposes, however, either manner of making the point suffices to explain why
sealed instruments are enforceable without consideration.
       13
          See also Georgeton v. Reynolds, 161 Va. 164, 173, 170 S.E. 741, 744 (1933) (“All of
these contracts were under seal and were therefore supported both constructively and actually by
valuable considerations.”). In Virginia, however, a chancellor exercising equity jurisdiction has
the authority to examine the absence of consideration even for a sealed instrument when a
“conveyance is attacked for fraud, mistake, oppression or unconscionableness.” Cooper v.
Gregory, 191 Va. 24, 31, 60 S.E.2d 50, 53 (1950); see also Norris, 188 Va. at 735-37, 51 S.E.2d
at 339-40; Seward v. Camp Mfg. Co., 112 Va. 479, 486, 71 S.E. 614, 616-17 (1911); Watkins,
105 Va. at 278-80, 54 S.E. at 36-37.
                                                  7
to the seal requirement, but he argued “that the seal has served and continues to serve a valid

function, that being to make binding promises without consideration, and to suggest that some

device for performing that function is not only appropriate, but in some cases necessary.” Id. at

177. 14

                     C. THE STATUTORY REFORMS TO THE SEAL REQUIREMENT

          Almost immediately upon the reception of English common law in the United States,

state legislatures began to make a host of statutory changes to the common-law seal

requirement. 15 In 1788, the General Assembly of Virginia enacted a statute to permit the use of

a “scroll 16 by way of seal” as an alternative to the traditional wax-imprinted seal. See 1788 Acts

ch. 67, at 35 (codified as amended at Code § 11-3) (altering archaic spelling). An instrument




          14
           At common law, seals implicated various doctrines such as the “equal dignity” rule
requiring amendments to sealed instruments to likewise be sealed, see Sachs v. Owings, 121 Va.
162, 171-72, 92 S.E. 997, 1000 (1917); the capacity of unnamed third parties to enforce an
agreement, see Code § 55-22 (superseding common-law rule prohibiting unnamed third-party
beneficiaries from suing on covenants or promises); Levine v. Selective Ins. of Am., 250 Va. 282,
285, 462 S.E.2d 81, 83 (1995); Ward v. Ernst & Young, 246 Va. 317, 329, 435 S.E.2d 628, 634
(1993); Thacker v. Hubard & Appleby, Inc., 122 Va. 379, 387-91, 94 S.E. 929, 931-32 (1918);
Newberry Land Co. v. Newberry, 95 Va. 119, 120-21, 27 S.E. 899, 899-900 (1897); 4 Minor,
supra, at 451 (3d rev. ed. 1893); the authority of an agent to bind a principal on a sealed contract,
see Forrest v. Hawkins, 169 Va. 470, 476, 194 S.E. 721, 723 (1938); and the enforceability of
releases lacking bilateral consideration, see Ferries Co. v. Brown, 121 Va. 13, 17, 92 S.E. 813,
814 (1917); 3 Eric Mills Holmes, Corbin on Contracts § 10.18[F][3], at 430 (Joseph M. Perillo
ed., rev. ed. 1996) [hereinafter “Holmes, Corbin on Contracts”].
          15
           See generally 3 Holmes, Corbin on Contracts, supra note 14, § 10.18[A]-[B], at 418-22
(listing 26 jurisdictions that have abolished private seals altogether and 12 jurisdictions that have
abolished the seal requirement for conveyances of real property).
          16
           A “scroll” is “[a] written mark; esp[ecially], a character affixed to a signature in place
of a seal.” Black’s Law Dictionary 1549 (10th ed. 2014); see also James A. Ballentine, A Law
Dictionary 458 (1916) (defining a scroll as “a scrawl or flourish intended as a seal”); 2 John
Bouvier, A Law Dictionary 500 (10th rev. ed. 1860) (defining a scroll as “[a] mark which is to
supply the place of a seal, made with a pen or other instrument on a writing”); Samuel Johnson,
A Dictionary of the English Language (3d rev. ed. 1768) (defining a “scrawl” as an “[u]nskillful
and inelegant writing” (capitalization omitted) (altering archaic spelling)).
                                                  8
bearing such a scroll would be treated in law “as if it were actually sealed.” Id. (altering archaic

spelling). The current version of the statute provides in pertinent part:

               Any writing to which a natural person . . . making it affixes a scroll by
               way of a seal, shall be of the same force as if it were actually sealed.
               The impression or stamping of a corporate or an official seal on paper
               or parchment alone shall be as valid as if made on wax or other
               adhesive substance. And any writing to which a natural person . . .
               making it affixes his signature . . . and which writing in its body says
               “this deed,” or “this indenture,” or other words importing a sealed
               instrument, or recognizes a seal, shall be of the same force as if it
               were actually sealed by such person . . . ; and any writing signed by a
               natural person . . . and regularly acknowledged before an officer
               authorized to take acknowledgments of deeds to be recorded in this
               Commonwealth, in the body of which writing it clearly appears that
               the person so signing and acknowledging the same intends to and
               does grant or convey . . . certain real estate therein described, . . . shall
               pass the title to such real estate as effectually as if it were written and
               executed in strict accordance with the provisions of [Code] § 55-48
               [providing a permissible form for a deed] . . . .

Code § 11-3.

       This statute does not abolish the seal requirement. Instead, it relaxes the seal requirement

by offering a limited list of specific substitutes for a seal. These substitutes include (1) “a scroll

by way of a seal”; (2) an imprint or stamp “of a corporate or an official seal on paper or

parchment”; (3) the use in the “body of [such] writing” of the words “‘this deed,’ or ‘this

indenture,’ or other words importing a sealed instrument” or recognizing a seal; or, finally, (4) a

proper acknowledgement of a document clearly demonstrating an intent to convey real estate

“before an officer authorized to take acknowledgments of deeds.” Id. The statute does not

identify when a seal is necessary but instead only addresses ways to make a written instrument

compliant with the seal requirement if either the common law or a statute require a seal.

                                 D. THE UNSEALED 15-YEAR LEASE

       The 15-year lease in this case did not include a seal of any kind, thus failing to satisfy the

common-law seal requirement embedded in the definition of “deed” under the Statute of
                                                    9
Conveyances, see Code § 55-2. Nor did the lease include any specific seal substitutes

recognized in Code § 11-3. The trial court, however, held that the lease “me[t] the requirements

of a deed” because “[t]he seventeen page Agreement of Lease exemplifies a sealed instrument as

alluded to in [Code §] 11-3 even though it is not referred to as ‘this deed’ or ‘this indenture.’”

J.A. at 9 (emphases added). The trial court reasoned that “[t]he law looks at substance not form.

The subject lease could just as easily have been entitled ‘Deed of Lease’ or ‘Lease Indenture.’”

Id. For several reasons, we disagree with the trial court’s interpretation of Code § 11-3.

       First, the court’s logic appears to be that a lengthy contract — simply because of its

length — “exemplifies a sealed instrument as alluded to in [Code §] 11-3.” J.A. at 9. We are

aware of no authority supporting this proposition. Under the common law, a sealed contract

means just that, a contract with a seal. The contract can be short or even cryptic, but its brevity

or verbosity reveals nothing about whether it is sealed or unsealed.

       We similarly disagree with the inference the court drew from the observation that the

“lease could just as easily have been entitled ‘Deed of Lease’ or ‘Lease Indenture.’” Id. By

statute, the words “this deed” or “this indenture” must appear in the body of the instrument, see

Code § 11-3, not merely the title. But, more importantly, even if we interpret the trial court as

holding that the lease could have simply used the statutorily approved words “this deed” or “this

indenture” in the body of the document, the parties did not do so. The relative ease with which a

party can comply with a statute is hardly a basis for excusing him when he does not even comply

with the minimal requirements imposed on him. If anything, the opposite is true.

       Second, we must also pause briefly over the trial court’s reflection that “[t]he law looks at

substance not form.” J.A. at 9. Though it is more properly understood as a maxim of equity, we




                                                 10
nonetheless acknowledge and respect this principle and its underlying sentiment. 17 Even so,

taken at face value, this aphorism itself lacks substance. Both the common law and statutory law

create a virtual architecture of rules that necessarily draw lines. At the margins the lines may

seem arbitrary. But those lines create a structure, and when viewed as a systemic whole they

provide predictability and stability.

       Courts cannot jettison “form” in favor of “substance” as an overarching philosophy of

law. It would be naïve, after all, to think that doing so would improve the judicial line-drawing

exercise. Courts would simply replace categorical, predictable, bright lines with ad hoc,

unpredictable, blurry lines. This case provides a useful illustration. The trial court’s reliance on

the substance-over-form maxim enabled it to effectively abolish the seal requirement for a

“seventeen page” lease because its length “exemplifies a sealed instrument as alluded to in [Code

§] 11-3.” J.A. at 9. 18 What about a 10-page lease or, for that matter, a very concise 5-page

lease? Are lengthy boilerplate leases to be favored over succinct leases tailored to a specific

transaction? Truth be told, courts can never fully escape the line-drawing exercise that the



       17
           See, e.g., Virginia Mach. & Well Co. v. Hungerford Coal Co., 182 Va. 550, 556, 29
S.E.2d 359, 362 (1944) (“Equity looks at the substance of a transaction and not its mere form.”
(citation omitted)); Hinman v. Mason, 149 Va. 267, 272, 136 S.E. 573, 574 (1927) (same), aff’d
on reh’g, 149 Va. 267, 273, 141 S.E. 144, 144 (1928); Ruckdeschall v. Seibel, 126 Va. 359, 373,
101 S.E. 425, 430 (1919) (same); Rinehart & Dennis Co. v. McArthur, 123 Va. 556, 570, 96 S.E.
829, 834 (1918) (same); Straley v. Esser, 117 Va. 135, 143, 83 S.E. 1075, 1078 (1915) (same);
Pace v. Pace’s Adm’r, 95 Va. 792, 800, 30 S.E. 361, 364 (1898) (same); Shepherd’s Adm’r v.
Chapman’s Adm’r, 83 Va. 215, 224, 2 S.E. 273, 277 (1887) (same); Poindexter’s Ex’rs v.
Green’s Ex’rs, 33 Va. (6 Leigh) 504, 514 (1835) (same); Watts v. Kinney, 30 Va. (3 Leigh) 272,
295 (1831) (same).
       18
          This reliance on length played no role in Granva Corp. v. Heyder, which involved a
“very comprehensive” lease that “contain[ed] practically every conceivable provision found in
leases of property,” 205 Va. 660, 662, 139 S.E.2d 77, 79 (1964). The lease violated Code § 55-2
by failing to include a corporate seal and thus was unenforceable. See id. at 662-65, 139 S.E.2d
at 79-81. At no point in our analysis did we consider the length or even the comprehensive
nature of the lease as a possible ground for excusing the statutory violation.
                                                 11
“form” of the law requires — which is why elevating “substance” over “form” as the ultimate

jurisprudential ideal is illusory.

          When taken too far, the substance-over-form maxim can also sideline “the larger premise

that, before any legal question can be answered, an a priori question must first be asked — who

has the authority to decide. It is the one question that precedes all others.” Boone v. Harrison,

52 Va. App. 53, 62, 660 S.E.2d 704, 708 (2008). Before asking where to draw the substance-

form line, we must first ask who has the power to draw it. That is an easy question to answer in

this case. The seal requirement comes to us from centuries of common-law precedent. The seal

substitutes come to us from the General Assembly. We have no authority to summarily dismiss

either.

          We made this point in Gordon v. Funkhouser, 100 Va. 675, 42 S.E. 677 (1902). In that

case, the appellant challenged the continuing relevance of the seal requirement and called upon

us to abolish it in the interest of modernity. We acknowledged the argument but offered this

reply:

                 In answer to the argument that the solemnity attaching to a sealed
                 instrument no longer exists; that under the business conditions of
                 this day no difference in facts exists between a sealed and an
                 unsealed instrument, and that the former decisions of this court to
                 the contrary should be overruled, we cannot do better than to
                 add . . . “[t]hat [even though] a spirit of self-reliance and directness
                 of purpose . . . will prompt the people of this age and country to
                 disregard the formalities of conveyancing, and the rules of law by
                 which they are described, [that fact] can constitute no sufficient
                 reason, nor furnish any adequate authority to the court to change
                 the law or overthrow plain, intelligible, and well-settled legal
                 principles. That is the province of the Legislature, not of the
                 judiciary.”

Id. at 684-85, 42 S.E. at 680 (quoting Stinchcomb v. Marsh, 56 Va. (15 Gratt.) 202, 211




                                                   12
(1858)). 19 We find ourselves in good company with these views. Chief Justice John Marshall

spoke directly to this issue while riding circuit in Virginia:

                [T]here are certain technical rules growing out of the state of
                things, when many of our legal principles originated, which are
                firmly [e]ngrafted on the law, and still remain a part of it, though
                the circumstances in which they had their birth are totally changed.
                Perhaps every distinction between a sealed and an unsealed
                instrument is of this description. But the distinction, and the rules
                which are founded on it, have taken such fast hold of the law, that
                they can be separated only by the power of the legislature. Till that
                authority shall interpose, the courts must respect the rules as they
                are found in adjudged cases.

United States v. Nelson, 27 F. Cas. 82, 84 (C.C.D. Va. 1822) (No. 15,862); see also Preston, 64

Va. (23 Gratt.) at 607 (“It is sufficient to say that [the distinctions between sealed and unsealed

instruments] exist; having their origin in well established principles. In the language of Chief

Justice Marshall, they have taken such firm hold of the law [that] they can only be removed by

the power of legislation.”). 20

        Our deference to the legislature is especially warranted on the subject of sealed

instruments because the General Assembly has specifically modified the common law in various

ways without abolishing the seal requirement. The legislature has rendered seals inoperative in

contracts for the sale of goods and in lease contracts governed by the Uniform Commercial



        19
            As one commentator well said, “the law has been somewhat relaxed in favor of custom
and convenience in doing business, yet the relaxation is confined to the manner of making a
seal. . . . If it should be thought that, in the present state of society, it would be best to put all
writings on the same footing, the legislature alone has power to accomplish it.” 1 Devlin, supra,
§ 245, at 352 (emphasis in original) (citation omitted).
        20
           We acknowledge that we have sometimes expressed, in dicta, criticism of the seal
requirement as irrelevant in cases in which parties attempted to use the seal requirement to defeat
claims based “upon [an] independent promise to pay, which would be valid though not under
seal,” as opposed to a claim that seeks to enforce a “deed, as an instrument under seal.” See, e.g.,
Harris v. McKay, 138 Va. 448, 455, 122 S.E. 137, 139 (1924). The present case, however,
involves the latter rather than the former claim.
                                                  13
Code, see 1964 Acts ch. 219, at 302 (codified as amended at Code § 8.2-203); 1991 Acts ch. 536,

at 902 (codified as amended at Code § 8.2A-203); made seals unnecessary to establish the

validity of surety bonds taken before courts and their officers, see 1979 Acts ch. 211, at 272

(codified as amended at Code § 49-18.1); and made seals similarly unnecessary to establish the

validity of a bond made on behalf of a fidelity and surety insurer under a power of attorney, see

1912 Acts ch. 328, at 654-55 (codified as amended at Code § 38.2-2420).

       The General Assembly has also changed the common-law rule that a defendant could not

claim a set-off in response to a plaintiff’s claim based on an instrument under seal, see 1830 Acts

ch. 11, at 62 (codified as amended at Code § 8.01-422); Kinzie v. Riely’s Ex’rs, 100 Va. 709,

714, 42 S.E. 872, 873-74 (1902); done away with the sealed-unsealed distinction in the statute of

limitations for written contracts, see 1977 Acts ch. 617, at 1089 (codified as amended at Code

§ 8.01-246(2)); retroactively validated real-estate deeds lacking a proper corporate seal or

attestation, see 1942 Acts ch. 436, at 698-99 (codified as amended at Code § 55-136); made seals

unnecessary in corporate deeds, see 1975 Acts ch. 500, at 994 (codified as amended at Code

§ 55-119); and validated all deeds and other documents executed by agents or attorneys in fact

on behalf of individuals in the armed forces despite the power of attorney or agency agreement

being defective for lack of a seal, see 1946 Acts ch. 130, at 190 (codified as amended at Code

§ 55-56).

       In these and other ways, the General Assembly has engaged the common-law seal

requirement but has never abolished it altogether for deeds governed by the Statute of

Conveyances. Whether the legislature should do so is not for us to say. We ask only if the

legislature already has; we answer that it has not.




                                                 14
                                     E. THE SAVING STATUTE

       The trial court resolved this case based entirely on its substance-over-form analysis as

applied to the seal-substitute statute, Code § 11-3. The lessor, Fredericksburg 35, argues on

appeal that another statute, Code § 55-51, cures any error in the trial court’s reasoning because

that statute directly overrules the common-law seal requirement for deeds covered by the Statute

of Conveyances. 21 We disagree.

       Code § 55-51 provides in full: “Any deed, or a part of a deed, which shall fail to take

effect by virtue of this chapter shall, nevertheless, be as valid and effectual and as binding upon

the parties thereto, so far as the rules of law and equity will permit, as if this chapter had not been

enacted.” By its plain terms, this saving statute only saves deeds that “fail to take effect by

virtue of this chapter.” Code § 55-51. This saving statute appears in Chapter 4 of Title 55.

Nowhere in that chapter is there a statutory requirement that deeds be under seal. That

requirement, as earlier observed, comes from the common law and is incorporated into the

definition of “deed” in the Statute of Conveyances, see Code § 55-2, neither of which can be

found in Chapter 4 of Title 55.

       The final phrase of the saving statute, declaring a statutorily noncompliant deed to “be as

valid and effectual and as binding . . . as if this chapter had not been enacted,” Code § 55-51

(emphasis added), adds support for this limitation. If Chapter 4 of Title 55 had never been

enacted, our analysis would not be different. The common-law seal requirement antedated the

General Assembly’s existence, and the legislative antecedent to the Statute of Conveyances




       21
           As an appellee, Fredericksburg 35 may raise this argument on appeal even though the
trial court never addressed it because it involves an assertion of law offered in support of, not in
contest with, the lower court’s judgment. See Robert & Bertha Robinson Family, LLC v. Allen,
295 Va. 130, 141 & n.9, 810 S.E.2d 48, 54 & n.9 (2018).
                                                  15
made its first appearance in the Code of Virginia in 1705, see Burns, 220 Va. at 1031 & n.8, 265

S.E.2d at 744 & n.8; 3 Hening, supra, at 318-19. So, even if Chapter 4 of Title 55 never existed,

the seal requirement would nevertheless govern deeds of lease with a term exceeding five years.

         Unpersuaded by this reasoning, Fredericksburg 35 points out that two provisions in

Chapter 4 of Title 55 provide suggested deed forms to which Code § 55-51 allegedly provides an

exception. Code § 55-57 states that “[a] deed of lease may be made in the following form” and

then includes the attestation clause: “Witness the following signature and seal (or signatures and

seals).” (Emphasis added.) Code § 55-48, the other statute on which Fredericksburg 35 relies,

does not mention a seal. In fact, in 2014, this recommended form for general deeds contained

the same attestation clause as Code § 55-57, but the General Assembly removed the language

referring to seals, replacing it with the attestation clause: “Witness the following signature (or

signatures).” See 2014 Acts. ch. 338, at 554 (codified as amended at Code § 55-48). Tellingly,

the General Assembly did not remove the seal language in its recommended form for deeds of

lease.

         Nonetheless, neither Code § 55-57 nor Code § 55-48 contain seal requirements that Code

§ 55-51 operates to suspend. Neither of these statutes imposes a seal requirement on deeds,

which the common law and the Statute of Conveyances have already accomplished. These

provisions only offer recommended language — purely permissive, not mandatory — for deeds

already required to be under seal. The presence or absence of either statute has no effect on the

seal requirement. 22



         22
           Fredericksburg 35 also suggests that the saving statute applies because the only
“defect, if it is a defect,” Appellee’s Br. at 8, is that the lease does not employ one of the seal
substitutes such as the words “this deed” or “this indenture,” Code § 11-3. See Appellee’s Br. at
7-9. Code § 11-3, however, does not require the use of substitutes for a seal. It only provides
alternatives to satisfy the common-law requirement of a seal. Moreover, Code § 11-3 is not
                                                 16
                                     F. THE PROPER REMEDY

        When a lease violates the common-law seal requirement, the lease as such cannot be

enforced in an action for damages by either party against the other. The written lease “may be

repudiated as soon as made by either party because it is not binding on them.” Granva Corp. v.

Heyder, 205 Va. 660, 664, 139 S.E.2d 77, 81 (1964). The ability to repudiate does not mean that

a court should wholly ignore the actual lessor-lessee relationship that may have been created

based upon the parties’ mistaken assumption about the legal validity of the written lease. 23 Its

invalidity, after all, was caused solely by creating a lease term exceeding five years, thus

violating the Statute of Conveyances and the common-law seal requirement for deeds subject to

that statute.

        In Granva Corp., we recognized that “when a tenant takes possession under a defectively

executed instrument a tenancy is created,” id., adopting the approach taken by New York courts

in Laughran v. Smith, 75 N.Y. 205 (1878), and Reeder v. Sayre, 70 N.Y. 180 (1877). In

Laughran, a verbal lease agreement violated the statute of frauds applicable to lease terms

greater than one year. The court acknowledged that the lease was void but stated that,

nevertheless,

                it has long been settled that when the tenant enters, and occupies,
                the agreement regulates the terms on which the tenancy subsists, in
                all respects, except as to the duration of the term. It is a reasonable
                inference in such case from the circumstances that the parties
                intended a tenancy on the terms of the original agreement, and the
                law implies a new contract between the parties corresponding
                therewith, so far as it is not in conflict with the statute.



located in Chapter 4 of Title 55.
        23
          Nor does the ability to repudiate mean that equitable remedies are unavailable. See
generally Granva Corp., 205 Va. at 664, 139 S.E.2d at 80; 1 Devlin, supra, § 246, at 353; 14
Powell, supra note 9, § 81A.04[1][f], at 81A-57; 4 Herbert Thorndike Tiffany, The Law of Real
Property § 1024, at 323 (3d ed. 1975 & Supp. 2017-2018).
                                                  17
Laughran, 75 N.Y. at 209 (emphases added) (citation omitted). The court in Reeder came to a

similar conclusion:

               The agreement, though by parol, and void as to the term and the
               interest in lands sought to be created, regulates the relations of the
               parties to it in other respects upon which the tenancy exists, and
               may be resorted to [in order] to determine their rights and duties, in
               all things consistent with, and not inapplicable to a yearly tenancy,
               such as the amount of rent to be paid, the time of year when the
               tenant could be compelled by the landlord to quit, and any
               covenants adapted to a letting for a year.

Reeder, 70 N.Y. at 184.

       We found this reasoning persuasive in Granva Corp. and still do. Once the invalid 15-

year term is excised from the lease, the tenancy created is implied from “the manner in which the

rent is received.” Granva Corp., 205 Va. at 664, 139 S.E.2d at 81 (citing Stores Bldg. Corp. v.

Conover, 204 Va. 457, 459-61, 132 S.E.2d 458, 460-61 (1963)). In this case, rent was received

on a monthly basis during the entirety of the lessor-lessee relationship. The occupation of the

premises and the monthly payment of rent in this case implies a month-to-month tenancy, cf.

Elliot v. Birrell, 127 Va. 166, 169-79, 102 S.E. 762, 763-66 (1920), which, as the undisputed

evidence at trial showed, was paid for through the last month of occupancy. The Game Place,

therefore, had no further rent obligation to Fredericksburg 35.

                                                III.

       In sum, the trial court erred as a matter of law by enforcing the lease and ordering The

Game Place and Lightburn to pay unpaid rent and attorney fees. We reverse and enter final

judgment in favor of The Game Place and Lightburn. 24



       24
          The trial court’s award in favor Fredericksburg 35 against Lightburn was solely against
Lightburn in his capacity as an alleged guarantor of the lease. See supra note 3. Because we
reverse the award against The Game Place, it follows that Lightburn has no independent
guarantor liability. See Bourne v. Board of Supervisors, 161 Va. 678, 684, 172 S.E. 245, 247
                                                18
                                                                        Reversed and final judgment.




(1934) (noting that a principal’s obligation and that of a guarantor are separate, but stating that
“[i]f there is no obligation on the part of the principal, there is none on the guarantor.” (citation
omitted)); C.S. Luck & Sons, Inc. v. Boatwright, 157 Va. 490, 495, 162 S.E. 53, 54 (1932) (“Of
course if the principal contractor is not liable his surety is not, for it would be a solecism to hold
that he is bound beyond his principal.”).
                                                  19
