SPECIAL NON EST FACTUM.
The name of a plea by which the
defendant says that the deed which he has executed is not his own or binding
upon him, because of some circumstance which shows that it was not intended to
be his deed, or because it was not binding upon him for some lawful reason; as,
when the defendant delivered the deed to a third person as an escrow to be
delivered upon a condition, and it has been delivered without the performance
of the condition, he may plead non est factum, state the fact, of the
conditional delivery, the non-performance of the condition, and add, "and so it
is not his deed;" or if the defendant be a feme covert, she may plead non est
factum, that she was a feme covert at the time the deed was made, "and so it is
not her deed." Bac. Ab. Pleas, &c. H 3, 1 2; Gould. on Pl. c. 6, part 1,
§64. See Issint.
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