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Arthur W. (Arthur Walker) Blakemore.

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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY






low to Examine a Title
to Real Estate



Modern American Law Lecture




Blackstone Institute, Chicago



HOW TO EXAMINE A TITLE
TO REAL ESTATE



BY

ARTHUR W. BLAKEMORE, A.B., LL.B.

OF THE BOSTON BAR



One of a Series of Lectures Especially Prepared
for the Blackstone Institute



Copyright, 1916, by Blackstone Institute



T

3 5&3# A

ARTHUR W. BLAKEMORE

Mr. Blakemore is a practicing attorney of wide
experience. Since 1900 he has been engaged in
active practice.

He is a graduate of Harvard College and Har-
vard Law School. Mr. Blakemore also studied
for a time at the Universities of Berlin and Hei-
delberg, Germany.

After he was admitted to the bar, he devoted
his attention not only to practice but also to the
preparation of legal articles on many phases of
the law and has become known as an authority.

Mr. Blakemore is the author of ' ' Real Property, ' '
in Modern American Law. In addition he has writ-
ten several articles in the Cyclopedia of Law and
Procedure. He is the author of "Massachusetts
Court Rules Annotated," "Blakemore and Ban-
croft on Inheritance Taxes," "Gould and Blake-
more on Bankruptcy," and has prepared articles
for several other publications.

Along with his other activities Mr. Blakemore
has found time to take an active part in civic
enterprises. For a period of five years he has
served as Alderman of the City of Newton, Massa-
chusetts, where he resides.



M.



HOW TO EXAMINE A TITLE TO
EEAL ESTATE

By

AKTHUR W. BLAKEMORE, A.B.,LL.B.

INTEODUCTION

It is impossible in this monograph to attempt even
to hint at the many rules of substantive law that
govern and affect the title to real estate. We will
assume, therefore, that the title examiner has a fair
knowledge of these rules of law, and will confine our-
selves to other questions which may well affect the
title. It should be remembered in the first place that
a record title is not a fetish of itself ; that there may
be a great difference between good title to real estate
and record title; that many persons hold land who
have not a good record title, while many titles good on
their face are defective for one cause or another which
does not and cannot appear on the records. For this
reason all good conveyancers attempt as far as pos-
sible to get the history of the title, as their report
might properly be biased by the consideration that the
property had been for a long period of years in the
hands of well-known people, or that it was based on
a land development which had been engineered by
careful and conservative owners. For the same rea-
son it is always wise before reporting on a title to



6 MODERN AMERICAN LAW LECTURE



personally examine the land in question, as many
things may thus be called to the attention of the title
examiner which he otherwise might overlook. He
might notice, for example, that the fences were down ;
that the buildings were within some building restric-
tion, or that the land was vacant where the parties
expected to find buildings. It has happened, for ex-
ample, more than once that good conveyancers have
passed title by mistake to the wrong lot of land or
have certified a title to be good which was impaired
by some cause which was readily apparent on per-
sonal examination of the property. As we shall see
in the course of this treatise, the examiner must rely
of necessity on the common honesty of the average
dealer in real estate. He knows and relies upon the
fact that not one in a thousand real estate transac-
tions are fraudulent. This reliance on common hon-
esty is one basis of a record title, as of course it is
comparatively easy to put on record deeds that are
forged or to misstate important facts like the names
of heirs interested in the property of a deceased
person.

The title examiner is employed by the buyer and
paid by him and it is his duty to protect the buyer
at all hazards against anything which might diminish
the value of the property bought. In case of mort-
gages, the mortgagee who loans the money selects the
title examiner, whose duty then of course is to pro-
tect the mortgaee, but the examiner is paid by the
mortgagor. In practice it is quite common for the
parties to agree beforehand as to the amount of com-
pensation of the examiner and this is wise to avoid



TITLE TO REAL ESTATE 7

controversy as to his bill. It is quite customary for
conveyancers to employ clerks experienced in such
work to examine the indexes and make the abstracts
and fill in the blanks by abstracting the various deeds,
but when this is done, the examiner should himself
verify the work of his assistants by an examination
of the original record.

DESCRIPTION AND PLAN OF PROPERTY

The first thing the examiner will ask for on being
retained to examine a title is the last deed of the
property. Failing this, he will ascertain the exact
location and get the name of the present owner. When
this is done, he should carefully write out the descrip-
tion of the land to be conveyed, which land is com-
monly called the " locus," as in case the land has been
previously subdivided, or is part of a larger tract,
such a description is absolutely essential to have with
him at all times. He should also as soon as possible
make a sketch of the property, showing the points of
the compass, the boundaries with the distances on
each side, and all the adjoining owners. He will get
this possibly from some atlas, where the land has been
cut up in lots for some time, but preferably from the
last available plan on file showing the description of
the property. It is as a general rule convenient and
sometimes absolutely necessary to make tracings or
sketches of every plan on record which is referred to
in any of the deeds or other papers abstracted. Such
plans often explain descriptions in old deeds which
otherwise would be unintelligible and form a very
convenient way of piecing the property together when



8 MODERN AMERICAN LAW LECTURE

it has been held in the past by separate and distinct
owners.

Plans of all kinds are of great assistance to the
examiner and should be carefully studied, and these
are especially valuable in interpreting old deeds, as
formerly plans were so expensive that they were not
usually drawn except by the more wealthy people,
and they are therefore of great help when found. For
want of better information, the examiner will often
find atlases of various dates which he can usually
obtain at the registries, to be of great assistance, as
these atlases will give the approximate outline of
each lot of land, with the name of the owner. Such
an atlas, for example, might help him materially in
case of a break in the title in finding the name of the
owner at a given date. Town maps are often made
and are on file, containing much valuable informa-
tion. Small maps are often bound in the record
books themselves with the deeds and should be care-
fully studied. It is common to bind up the larger
plans in books and compile indexes to these plans
either under the name of the city or town in which
the land is situated, under the name of the owner,
and sometimes under the name of the street or of the
surveyor who drew the plan. In this way it is pos-
sible to find plans which might not otherwise come
to light. Plans of railroad locations are commonly
filed in the registry of deeds, although they may be
filed with some other public officer, as with the County
Commissioner. Tax Collectors' plans are usually on
file with the local assessors and should be consulted,
especially in consideration of tax deeds.



TITLE TO KEAL ESTATE 9

RECORDS AND INDEXES

Let us suppose that the examiner has obtained the
last deed of the property with general instructions in
regard to it. He will first ascertain in which county
his land lies and familiarize himself with county lines
during the time of his examination, as it may well be
that the lines have been changed, so that he must look
for part of his title in one county and for part in
another county. He will go to the Registry of Deeds
of the county where the land lies and there trace back
to a starting point for his title. He will find in the
registries in this country universally that the deeds
and most other instruments relating to titles are
copied into record books in the registries of deeds.
In some registries where the ink in the original rec-
ords has become too faint for ordinary use, or where
the records themselves have been lost or destroyed,
duplicate records attested by the Register may be
found and used.

In order to make these voluminous records avail-
able, indexes have been prepared containing the names
of all persons named in these instruments. The
grantees in all deeds and other instruments are placed
in grantees' indexes and the grantors in grantors'
indexes. It is a common practice to have a separate
index for each year and from time to time these
indexes are consolidated so that the examiner may be
able to find in one index all the conveyances which
John Smith, for example, has made or has received
during five, ten or even a hundred years. Such con-
solidated indexes of course greatly facilitate the work



10 MODERN AMERICAN LAW LECTURE

of the examiner and may be relied upon by hum The
examiner should familiarize himself with the methods
of indexing in these indexes in the particular registry
in which he is to work. It is common, for example,
to index partition proceedings in both grantor and
grantee indexes. The names of corporations are
treated in various ways. In some places the first
word in the name, whatever it may be, is indexed,
while in other places the most important name alone
will be found. For example, the M. B. Smith Com-
pany might be indexed under M or under Smith;
or in some places all corporations are indexed under
the word " Company," all votes under the word
"Vote" and all banks under the word "Bank."

The examiner should also be very careful in regard
to the middle names, as the early indexes pay some-
times little attention to them and there is much law
to the effect that the middle name of a person is not
important, so that the title may really be charged
with a conveyance or lien against John J. Smith
when the conveyance or lien stands in the name of
John Smith. Middle names were formerly not con-
sidered important and it was quite customary for
persons to change their middle names as they saw
fit, sometimes using them and sometimes not using
them. To-day it is quite common for women when
they marry to drop out their former middle name
and use instead their former surname, and the ex-
aminer must be on the watch for all these things.

It is customary to keep separate indexes of attach-
ments and of plans and in some places of tax sales
and street and other assessments and the examine*



TITLE TO REAL ESTATE 11

must ascertain just what system is used in the par-
ticular registry which he is using. The later indexes
in most places now require the insertion of the name
of the town where the land lies and this of course is
a great help. Even here, however, the examiner must
familiarize himself with the history of the locality
and ascertain whether or not the city or town where
the land lies was formerly a part of another city or
town or went by some other than its present name.

PROBATE RECORDS

When a land owner dies, his estate is settled in the
Probate Court and the examiner will be obliged to go
to the probate records to find the names of heirs and
other data necessary for his examination. Difficulties
owing to the death of the previous owners are fre-
quently encountered in tracing .a title back to the
starting point, as of course any change of title due
to death will not appear in the grantee indexes in
the Registry of Deeds. The fact of death of the for-
mer owner should appear where the deeds have been
carefully drawn, by reference in the deeds of the
heirs to the person from whom they obtained title.
Where no such references appear and the deceased
person was of a different name from the heir, as in
case of a descent to collateral relatives or a devise
to one of a different name, it may become quite dif-
ficult to ascertain from whom the title comes. There
is a case on record, for example, where the last known
deed was in 1892, made by one of several heirs of a
person who died in 1785, and where there were no
references or deeds on record during all that period.



12 MODERN AMERICAN LAW LECTURE

In such a case old atlases or town or city plans or
assessors' records can be resorted to and will usually
disclose the name of the former owner. Then tb
examiner should go into the Probate Registry and
there make a careful abstract of all papers on file in
that estate. As a matter of caution the docket should
also be examined and copied, as some papers may
have been filed and lost or be out of place. Of course
the important things to note in relation to a probate
are all matters giving the court authority to deal
with the title to the real estate. It should first be
noted that the court had jurisdiction over the estate ;
that the deceased person died an inhabitant of the
county which issued probate and the petition for pro-
bate should be abstracted to see what heirs of the
deceased person are named in the petition and that
the usual jurisdictional facts appear. Where there
is a will, the will should be abstracted and any special
clause like a devise or a power of sale relating to
the real estate should be carefully copied. The inven-
tory filed by the executor or administrator should
also be examined, as it may be important to show that
in his opinion the deceased person owned the prop-
erty and also what it was worth at the time of his
death. The proceedings of the court must be care-
fully examined. It should be seen that the heirs or
other parties interested had notice of the proceedings
for probate and whether they appeared or not, and
that if the petition was without sureties, that publi-
cation was made in states which require publication.
After appointment the affidavit or other proceedings
showing notice of the appointment must be examined



TITLE TO REAL ESTATE 13

and the examiner must satisfy himself that all proper
proceedings were taken to bar the rights of creditors.
He should also examine the accounts of the executor
or administrator to ascertain whether any legacies
provided in the will were paid, as in many states
legatees have a lien on the land and can bring suit
even a long time after probate. Probate proceedings
must all be considered in view of the law in force at
the date of the death, with which the examiner must
familiarize himself, remembering that the main ques-
tions are, whether the Probate Court obtained juris-
diction and had power to take what action it did over
the land and over the persons who had rights in the
land.

The persons to be scheduled after a probate pro-
ceeding will depend upon the form of the probate,
as in case of an administration the heirs must be run
and likewise the administrator, if he obtains author-
ity to sell for any purpose. If there is a will, the
devisees of the land should be scheduled and also
trustees, if the property is left in trust, and in all
cases the estate of the deceased person himself should
be scheduled because of the different methods of
indexing adopted in different places.

SCHEDULES

A schedule is a copy from the index in the Registry
of Deeds of all the deeds made by a certain person
during a certain time in the case of a grantor index,
or those made to a person in a certain period in the
case of the grantee index. The purpose of grantee
schedules is to find a starting point for the title, while



14 MODERN AMERICAN LAW LECTURE

the grantor schedules have to be made and then
checked from the time each owner received title until
he parted with it and for a certain time afterwards
sufficient to guard against tax sales. Schedules are
commonly written on separate sheets of paper and
will show simply the number of the volume of the
record book and its page and the date of the convey-
ance and a statement of the property conveyed when
necessary. It is customary in a grantor's schedule
to insert the names of the grantees. The only pur-
pose of the schedule is as a check to enable the exam-
iner to assure himself that he has examined every
instrument that can possibly bear on the title.

Where the examiner finds that the owner is a
woman who has been subsequently married, both the
single name and her married name should be sched-
uled, as she may have given a deed before her mar-
riage which is not recorded until after it. Under the
law in some states where the husband is made a joint
owner with the wife of her real estate, it is necessary
also to schedule the name of the husband as well as
that of the wife where title is in her primarily. It
may be necessary to schedule the name of the mort-
gagee under a mortgage to find out whether a dis-
charge was ever given where it does not appear by a
marginal reference on the mortgage.

ABSTRACTS

It is necessary to make an abstract or synopsis of
every instrument relating to the property. The form
of the abstract is important. It serves two purposes.
In the first place, it forms the basis for the examiner's



TITLE TO REAL ESTATE 15

study when he finishes collecting his material to ascer-
tain by an examination of the abstract whether the
title is good or not. In the second place, it forms a
permanent and convenient record in case the exam-
iner may later be consulted in regard to the title.
For these reasons the abstract should be as full as
may be necessary. The most approved system is to
use printed blanks with a separate sheet for each
instrument, which amounts to a synopsis.

Printed forms of abstract required in the Land
Court in Massachusetts, for example, are as follows :

DEED BOOK PAGE

Grantor

Consideration, $ paid by Dateinst. . . .

Grantee Date ack ....

Habendum to Date rec ....

Covenants

Dower and

Signed by

Sealed by

Ack. by before

Description

Sheet No Title No

MORTGAGE (Outstanding or Foreclosed) BOOK PAGE

Grantor

Consideration, $ paid by Date inst. . . .

Grantee Date ack

Habendum to Date rec ....

Covenants

Dower and

Signed by

Sealed by

Ack. by before

Marginal
references



16 MODERN AMERICAN LAW LECTURE

Description

Provided

Power of sale Where ? ,

Notice

Newspaper published in

Grantee may purchase ?

Special provisions

Sheet No Title No

MORTGAGE (Discharged) BOOK PAGE

Grantor

Consideration, $ paid by Dateinst. . . .

Grantee Date ack. . . .

Habendum to Date rec ....

Covenants

Amount

Time

Wife

Marginal
references

Description

Marginal Record

Sheet No Title No

Whatever system the examiner uses, he should be
careful to adhere to that system carefully. It is not
well to have the printed blank too full, as it is much
easier to overlook important mistakes or omissions
in a deed when the matter appears in the printed
blank than if the examiner is obliged to write it into
the blank himself. Many examiners dislike printed
blanks altogether, as they claim there is a tendency
to forget to note differences from the printed matter
and to exercise care in comparing the printed blank
with the deed in question, and therefore they prefer
to abstract each deed by itself. On the other hand the
advantages of printed blanks are, in the first place,



TITLE TO REAL ESTATE 17

uniformity; in the second, saving of time and con-
venience in sorting the blanks when filled in.. A
sample of an abstract not made on a printed blank
is as follows :

1602. 302 William Claflin Newton $1

to
Not locus Mary E. Clark ux Geo. L. Newton

gv gr bar sell cy A ctn pel of Id with
the bldgs thron sit in Newton bnd

Begng at the N. "W. corner of the prems to be cyd
on Otis St at the fence by Id of Eldredge being at
N. "W. corner of lot 33 on Blakes plan of Id of James
M. Cook, d 1847. rec 3/44 th the line E on Otis St
431 f m or 1. to the end of the pointed wall th S
in a straight line to the fence by the wall bndg
Mrs. Eldredge and my land th N. W. by sd stone
wall and by the rear lines of lots 37 & 38 on sd plan
to Mrs. Eldredge 's land, th N 6 W by sd Eldredge
land d, being W boundary line of lot 38 265 f to
pt of begng.

Clark to pay taxes 1882

To h & h Mary E. Clark H & a

free fuU

D & H Mary B.

Date Apr. 1, 1882 William Claflin seal Mary B.
Claflin seal

Ack June 9, 1882 bef Chas A. Drew N. P. seal
Eec. June 10, 1882

The date of the instrument is the date of record,
but a good abstract will include the date of the instru-
ment, the date of acknowledgment, and also the date
of record. It is quite common to put the date of rec-
ord at the top of the abstract of each instrument and
a capital letter in the margin indicating the character
of the instrument, as "M" for mortgage, "W" for
warranty deed, "Q" for quitclaim deed, etc. The



18 MODERN AMERICAN LAW LECTURE

abstract should begin, of course, with the full names
of the grantors. It should include the consideration
and indicate in some way by whom the consideration
is paid. It should give the words of the granting
clause fully by abbreviations, using a different abbre-
viation for the word "give" from that used for
" grant," and it should also be noted whether the
words "heirs and assigns" are used. The grantee's
name will be placed commonly at the head of the in-
strument and therefore need not be repeated here
under the granting clause. The description of the
property must be carefully followed, and it may be
well to begin each boundary on a new line, and in case
of a complicated description, to make a small sketch
on the page showing the description. The examiner
should be careful to use some uniform system of punc-
tuating the description. All distances may be writ-
ten out in figures and the examiner will soon learn
to use common abbreviations which will save much
tune. The expression "habendum in fee" may sig-
nify a complete and proper habendum clause in the
deed, including heirs and assigns in the case of an
individual grantee and successors or assigns in the
case of a corporation. It is common to indicate the
warranty in a deed by the expression "full wty," and
any unusual warranty should be written out in full.
The expression "being the same premises conveyed
by deed of" can be abbreviated by using the equality
sign, and a reference to title, as "for my title see deed
of ' ' will appear in the abstract as ' ' ref . deed, ' ' etc. It
is unnecessary usually to give the last name of the
wife in the dower clause, which might well read as



TITLE TO EEAL ESTATE 19

follows : "ux Grace F. rel. d. & h." It must be noted
whether all parties to the deed have actually signed
it and whether all signatures are accompanied with
seals, which may be indicated by the expression "all
s. & s," and it is well to make a note of the names of
the witnesses, if any. The examiner should note who
acknowledges a deed and the name of the officer
taking the acknowledgment. The examiner should see
whether the deed is properly executed and acknowl-
edged in accordance with the law in force at the time
of its execution, as this may involve the question of
Federal Revenue stamps under the Federal law of
1898.

All deeds must show that the owner was either un-
married at the time, or if not, proper release of home-
stead and of curtesy in the case of a husband and
dower in the case of a wife, must appear on the deed.
Where the deed does not show whether the owner was
married or not, it may be necessary for the examiner
to fortify the title by affidavits of persons who know
the facts that the owner was unmarried at the time the
deed was given. A mortgage is abstracted like a deed
except that great care should be taken in noting the
terms of the power of sale and other requisites to a
good foreclosure stated in the mortgage. Any assign-
ment, extension, or foreclosure of a mortgage will be
carefully abstracted in the same way.

There are various methods of arranging the ab-
stracts on completion of the work. Some conveyan-
cers put them in chronological order regardless of the
portion of the laws to which they refer, but probably
a better way where the land comes from different



20 MODERN AMERICAN LAW LECTURE

sources is to arrange the abstracts for each portion
of the laws in chronological order.

STARTING POINT

Conveyancers all have their own methods of ab-


1

Online LibraryArthur W. (Arthur Walker) BlakemoreHow to examine a title to real estate → online text (page 1 of 2)