Frederick Mortensen Hinch Edward Mills John.

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§ 174. Oonyeyances.

§ 176. — ^In General — ^A conveyance is the transfer of the
title of land from one person or class of persons to another."
The instrument which conveys the property is also called a
conveyance. The conveyance may be by deed, record or by
devise."

10 Bays' Commercial Law, vol. 3, sealed by the party making the

p. 74. same, the maker or makers being

11 Bays' Commercial Law, voL 9, of full age, sound mind, and dis-

p. 175. covert, shall be sufficient, without

WCyc. Law Diet. livery of seizin, for the giving,

ISBonvier's Inst., sees. 2000, granting, selling, mortgaging, leas-

2002; Hutchinson v. Bramhall, 42 ing or otherwise conveying or

•K. J. Eq. 384, 7 Atl. 873. transferring any lands, tenements

"Every deed, mortfjage or other or hereditaments in this (the)
conveyance in writing, not pro- State, so as, to all intents and pur-
cured by duress, and signed and poses, absolutely and fuUv vest in



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106 NOTARIES PUBLIO. [§ 176

§ 176. — ^FraudiQent Oonveyances. — ^A fraudulent convey-
ance is a conveyance, the object, tendency or eflEect of which is
to defraud another, or the intent of which is to avoid some
duty or debt due by or incumbent on the party making it.^*
Conveyances intended to defeat creditors or others are fraudu-
lent and void and may be attacked in a court of equity.^* To
impeach a conveyance as fraudulent, the intention of both the
grantor and grantee must be proven such.** A conveyance
by husband to his wife, when his liabilities begin to jeopardize
his future, should always be regarded with watchful sus-
picion.*''

§ 177. —Voluntary Oonveyances.— A voluntary conveyance
is the transfer of an estate without any adequate consideration
of value. The presumption of fraud naturally arises,** or at
least want of consideration may be sufficient to cause an in-
quiry.**

§ 178. Estates in Bealty.

§ 179. — ^In General — ^An estate is the quantum and dura-
tion of proprietary rights in lands, tenements and heredita-
ments, the theory of the common law being that the tenant or
owner is entitled to an estate in the land rather than to the land
itself. Estates are classified with reference to their duration
or quantum, as freehold estates, including estates of inheri-
tance, suck as fee simple estates, and fee tail estates. Also
including life estates, and in this latter class are included the
estates existing during coverture, and afterwards such as
dower and curtesy. A second class of estates less than free-



every donee, grantee, bargainee, 17 Hughes v. Noyes, 171 HI. 675;

mortgagee, lessee or purchaser, aU 49 N. E. 703; Hauk v. Van Ingen,

such estate or estates as shaU be 97 HI. App. 642; Township of

specified in any such deed, mort- Maple Valley v. Foley, 113 Mich,

gage, lease or other conveyance." 622, 71 N. W. 1086; Hathaway v.

J. & A. Ann. Stat. (Hlinois) If 2232. Arnold, 157 Wis. 22, 145 N. W.

l4Cyc. Law Diet. 780.

15 Kent ^8 Comm., vol. 2, p. •440; MCyc. Law Diet.; Lucas ▼.

Strauss v. Abrahams, 32 Fed. 310; Lucas, 103 HI. 121.

Bridge v. Eggleston, 14 Mass. 250, l^Warvelle on Abstracts (4th

7 Am. Dec. 209. Bd.), § 284.

16 Ball V. Callahan ^ Son, 91^ BL
App. 616.



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§ 182] CONVEYANCES AND ACKNOWLEDGMENTS. 107

hold include estates for years, tenancy at will or by suflfer-
ance, and tenancies from year to year. According to the right
of present or future enjoyment, estates are classified as pres-
ent and future, the latter including reversions, remainders,
and uses and trusts, dassified according as they are owned
by one or more persons, and according to the nature of the
rights of the several owners, they are estates in severalty,
and joint estates, including joint tenancy, tenacy in common,
in entirety, and in coparcenary.**

§ 180. — ^Fee Simple Estates; Determinable Fees; Fee Tail
Estates; Bemainders. — Fee simple is the absolute estate a man
and his heirs have in the land — ^the largest possible. Fee tail
is the inheritable limited estate which descends to certain
classes of heirs of the body of an ancestor. Fee determinable
is limited to a man and his heirs. An estate in remainder is
an estate limited to take effect in possession or enjoyment,
or in both, subject to a term of years or contingent interest
to intervene, which immediate interest is created by the same
instrument out of the same subject of property.*^ Where a
contingent remainder is devised, the fee descends to the heir,
and when the contingency happens, the heir's estate opens
to let in the remainder.**

§ 181. —Life Estates.— A life estate is held only during
the life of the person, such as curtesy and dower.

§ 182. —Dower and Curtesy. — ^Dower is the life estate
which a wife has in the lands and tenements of her deceased
husband, which was acquired any time during their coverture.
At common law, and in most of the United States, it is one-
third of the estate. The husband's deed to land will pass
the legal title without the wife joining. The object of the
wife joining is to pass her right of dower.** Where a feme
covert was the owner of real estate in fee, and executed a
deed with her husband, purporting to convey the estate, and
the acknowledgment was in substance a mere relinquishment
of dower, the deed did not convey the estate of the wife.**

•OCyc. Law Diet tSEagaa v. Connelly, 107 HI.

«l dye. Law Diet. 458.

tS Peterson v. Jaekson, 106 HI. MLane ▼. Doliek, 6 MeLean

40, eS N. E. 643. (U. &.) 200.



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108 NOTABIBS PUBLIC. [§ 1^3

CJurtegy is the life estate which a husband has in the estate
of his wife after her death, providing they have lawful issa«
capable of inheriting; it is an estate of freehold.

Estates of dower, and tenancy by the curtesy, have been
generally abolished and the surviving spouse takes a statutory
allowance from the estate of the deceased, varying in quan-
tity in the various states" The terms, especially the term
** dower," are frequently used to describe the statutory in-
terest of the wife in her husband's estate.

§ 183. —Trust Estates.— A trust estate is one held for the
benefit of another. A trustee is the person holding the estate.
A cestui que use is he for whose use the estate is held. A
cestui que trust is the equitable owner of the estate. A cestui
que vie is one whose life measures the duration of the estate.

§ 184. —Merger of Estates.-— A merger of an estate is the
absorption of a lesser estate by the greater when they meet
in one and the same person.

§ 186. —Joint Tenants and Tenants in Common.- An estate
of joint tenancy is that which subsists where several persons
have any subject of property jointly between them in equal
shares by purchase. Tenants in common are such as hold
lands and tenements by several and distinct titles and not
by a joint title, but occupy in common. The only unity rec-
ognized between them is that of possession."

§ 186. Homesteads. — This is a constitutionally guaranteed
right annexed to land used as a home exempting it froiki sale
under execution for debt adopted by all the states of our
Union. The homestead of a widow in a fiat building or apart-
ment house is confined to the apartment occupied by her as
a residence, provided it does not exceed in value the exemp-
tion allowed by statute.*^ In California, a homestead cannot

tSSee post, I 271 et seq, 2S6; Mayfield ▼. Maasden, 59 Iowa

Dower and Curtesy, see Warvelle 517, 18 N. "W. 652; Bhodes,

on Abstracts (4th Ed.), f 23. Pogram Sb Co. v. McCormick, 4

MCye. liaw. Diet. Iowa 368, 68 Am. Dee. 663; D78011

•7 Potter V. aapp, 203 HI. 692, v. Sheley, 11 Mich. 527. War-

68 N. E. 81, 96 Am. St. Bep. 822, \e11e on Abstraeti (4th Ed.), f 22.

citing Tieman y. Creditors, 62 Cal.



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§ 191] 00NVBYAN0B8 AND A0KK0WLEDGMBNT8. 109

be created upon land held in cotenancy, or tenancy in com-
mon, in favor of one of the cotenants.**

§ 187. Eaiements. — ^Easement is the right which the owner
of a piece of property has in the lands of another. It may
be a right of way, etc.

§ 188. Emblements. — ^Emblements are the products of the
land, its crops, etc., sown by the tenant.

§189. Titles to Real Estate.

§ 190. — ^In Oeneral.— A title is the means whereby the
owner of lands hath the just possession of his property .■• The
validity and construction, as well as the force and eflfect, of all
instroments affecting the title to the land depend upon the
law of the state where the land is situated.**

§ 191. — Good and Harketable Titles. — ^For purposes of
comparison only, titles are sometimes classified as good and
perfect, also known as marketable, and bad or doubtful. The
doctrine of marketable titles is purely equitable and of mod-
em origin; at law, every title not incurably defective is
marketable.'* A good title is one which entitles a man by
right to a property or estate, and to the lawful possession of
the same. One free from doubt or defects. A marketable
title is one which a court of equity considers to be so clear
that it will enforce. its acceptance by a purchaser. An equi-
table doctrine but frequently applied in courts of law. A
complete title is one having the right of possession joined to
the right of property. A doubtful title is one a court of
equity does not consider clear enough to enforce an accept-

tt Rosenthal v. Merced Bank, quired. This property or specific

110 Cal. 198, 42 Pac. 640. degree of interest in lands, of

•9 2 Blackstone 195; Coke on whatever kind or nature, is de-
Littleton 345; Cyc. Law Diet.; scribed in the comprehensive term
Arrington v. Liscom, 34 Cal. 365, estate. The method of acquiring
94 Am. Dec. 722. and right of holding same is de-

"A well defined and strongly nominated title.'* Warvelle on

marked distinction has been made Abstracts (4th Ed.), f 14.

by elementary writers, between the SO Dal ton v. Taliaferro, 101 HI

property or interest which one has A pp. 592, citing Harrison v. Weath-

in lands • • • and the author- erby, 180 Dl. 418, 64 N. E. 237.

ity whereby the same are held, or 91 Warvelle on Abstracts (4th

the mode by which they are ac- Ed.), f 16.



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110 NOTAKIBS PUBLIC. [§ 192

ance of, nor defective enough to declare bad* A bad title
conveys no property.**

§ 192. —Modes of Acquisition of Title.— Title to real estate
is acquired by descent, by purchase and by adverse possession.

§ 193. —Titles by Descent— Descent, or hereditary succes-
sion, is the title whereby one person, upon the death of an-
other, succeeds to or acquires the estate of the latter as heir
at law, the estate so derived being called an inheritance.
Though of universal observance, inheritance is not a natural
right but is purely statutory, and therefore arbitrary, abso-
lute and unconditional.**

§ 194. —Heirs ; Relationship by AfSnity and Oonsanguinity.
— ^Heirs a»e those bom in lawful matrimony, who succeed to
one's estate by descent, or right of blood, and by act of Qod,
There are often heirs by adoption. Affinity is the relation
existing by marriage. The kindred of the wife with the hus-
band and the kindred of the husband with the wife. Consan-
guinity or kindred is the blood degree relationship of indi-
viduals, descending from a common ancestor, as ascendents.
Ancestors: Great grandfather, great grandmother, grand-
father, grandmother, father, mother. Descendants: Son,
grandson, great grandson. The degree is established by each
generation. Lineal consanguinity is the relation which exists
among persons where one is descended from the other as be-
tween father and son, in the direct line of descent.** Collat-
eral consanguinity is the relationship between persons having
the same ancestry but not the same descendants, like uncle
and nephew. Father, son and grandson are lineal descendants.
To descend from the same father and mother, same grand-
father and grandmother, is to be of the whole blood, but to
have the same father and grandfather,, but diflPerent mother
or grandmother, is to be of the half blood. In the civil law
persons bom of the same father and grandfather but of dif-
ferent mothers or grandmothers are consanguineous children.
Those bom of the same mother or grandmother but of a differ-



ttCyc. liaw Diet. MWarvelle on Abitraett (4th

SS WarveUe on Abstnieti (4th Ed.), f 81.
Ed.), § 29.



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§ 196] CONVEYANCES AND ACKNOWLKIXJMKNTS. , 111

i

ent father are called uterine children. The common law fol-
lows the former, or canon law.

§ 196. —Titles by Purchase.— Title by purchase is a generic
term and includes every mode of coming to an estate, except
by inheritance. Its limited application is to acquisition by
bargain and sale.'* Title by deed is the most common form
of purchase, and that by which the great bulk of ^11 the real
property in the country is directly held.

§ 196. — ^Prescription and Limitations; Adverse Possession.
— ^Prescription is that title which arises from long and con-
tinued possession of property, and is founded upon the pre-
sumption that the party in possession would not have been
allowed by other claimants to hold the same without a just
and paramount right. The period of prescription, at the com-
mon law, does not extend farther back than sixty years, and
in general it is the policy of the courts to limit the presump-
tion of grants to periods analogous to those of the statute of
limitations.*^

Limitation of actions is the statutory restriction of the time
within which an action may be brought.*'' The state legisla-
tures usually have power to prescribe a reasonable time within
which rights may be enforced.** One having title to land
under a statute of limitation may maintain an action against
one who has lost title to it by the same statute.**

Title by adverse possession is the enjoyment of land, or such
estate as lies in grant, under such circumstances as indicate
that such enjoyment has been commenced and continued
under an assertion or color of right on the part of the pos-
sessor.*® 11 a landowner permits the owner of adjoining land,
in fencing his land, to inclose a portion of his land, and keep
the same, claiming title coextensive with the inclosure for
twenty years, the bar of the statute of limitations will be



85Warvelle on Abstract! (4th Equipment Mfg. Co., 151 Wis. 555,

Ed.), § 37. 139 N. W. 393.

seWarvelle on Abstracts (4th «• Bradley v. Lightcap, 202 HI.

ra.), § 45. 154, 67 N. E. 45.

87Cyc. Law Diet. 40Cyc. Law Diet. French v.

WLanz-Owen & Co. t. Garage Pearce, 8 Conn. 440; Smith v. Bur-

tis, 9 Johns. (N. Y.) 174,



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112 KOTARIES PUBLIC. [§ 197

applied.** Undispnted possession for more than twenty years
under written conveyance gives ezclosive ownership adverse
to all the world.*^

§ 197. Eminent Pomain. — ^Eminent domain is the right
which the government holds over all lands to appropriate
them to public use when necessary.**

§ 198. Defeasance. — ^A defeasance is an instrument which
defeats the force or operation of some other instrument, or
deed, or estate. That which in the same deed is called a con-
dition in another is called a defeasance.**

§ 199. Abstracts of Title.— An abstract is a condensed his-
tory of the title to land, consisting of a synopsis or summary
of the material or operative portions of all the various in-
struments of conveyance which in any manner affect said
land or the title thereto, or any estate or interest therein, to-
gether with a statement of all liens, charges or liabilities to
which the same may be subject, and of which it is in any way
material for purchasers to be apprised.** The vendor pre-
pares and pays for the abstract and the purchaser has his
lawyer examine the titles. Most abstracts are now prepared
by abstract companies. No one is bound to accept or give
an indemnity for a defective or incumbered title, and it should
be refused.**

§ 200. Examination of Titles. — ^In compiling an abstract,
the examiner simply collects, condenses and arranges the in-
formation found of record, without any expression as to the
rights of any of the parties named therein. The American
abstract is not prepared from original documents, but from
the recorded evidence thereof fotmd in the ofSces of registra-
tion, courts, and other legal depositories, and, as a rule, shows



410TlaIierty ▼. Mann, 195 HL & &. B. Co., 8 Paige (N. Y.) 78,

304, 63 N. E. 727. 22 Am. Dec. 679.

WGilman v. Brown, 115 Wis. 1, 44Cyc. Law Diet.

91 N. W. 227. 4» WarveUe on Abstracte (4th

ttWarvelle on Abstraets (4th Ed.), f 2.

Ed.), fi 53; Kent's Comm., vol. 2, 46Bi8pham Pr. Bq. sees. 878,

pp. 338, 339; Beckman ▼. Saratoga 879; Woodford y. Leavenworth, 14

Ind. 814.



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201]



CONVBTANOES AND ACKNOWLKDOMENTS.



113



only such title as is deducible of record.^ The work is then
turned over to a lawyer, who critically examines each in-
strument shown or statement made; decides upon the suffi-
ciency and legal eflfect of the conveyances, noting any de-
fects, or irregularities therein, or in any of the proceedings
necessary to divest or acquire title; determines the relative
rights and legal relations of the parties to the land in ques-
tion and to each other; and finally formulates his views in
a written opinion which is annexed to the abstract, and on
the strength of which future sales or other dispositions of the
property are usually made.

§ 201. Surveys. — ^The United States government surveys
are uniform and are done under what is known as the ''rec-
tangular system." Certain east and west lines run with the
parallels of latitude and the north and south township lines
with the meridians. The system provided for sales in sec-
tions of 640 acres, one mile square, quarter sections of 160
acres, or quarter sections of 40 acres. To secure certainty
and brevity of description, twenty-four initial points on the
intersection of the principal bases with surveying meridians



tfrWarveUe on Abstraeti (4th
Ed.), f 6.

To examine a title — search coun-
ty register'! or recorder's office for
— deeds, mortgages, agreements,
powers of attorney, assignments of
mortgages, leases, trusts by deed,
eoUector's satisfaction piece (suit
upon same limited to three years
after record), surveys.

Search county clerk's office for
— ^taxes forfeited, bonds of tax col-
lector.

Search county treasurer's office
for — taxes not delinquent, inheri-
tance taxes, special assessments,
bonds of collectors of taxes.

Search county or probate courts
for — deceased estates, deeds with
defeasances, wills, trusts, insolv-
ent assignments.

Search various courts for — jndg-
8



ments, notices of U$ penden$, as-
signments of judgments, foreclo-
sures, receivers, forfeited recogni-
zances, executions, mechanics ' liens
(county or circuit).

Search circuit court for — ^me-
chanics' liens.

Search sheriff's office for — execu-
tions, sales.

Search criminal court's office for
— ^flnes, etc.

Search U. S. 0. 0. A., circuit
and district courts for — ^judgment?
and decrees, criminal fines and
judgments, petitions in bankruptcy.

Search 17. S. marshal's office for
— sales.

Search city and village treas-
urer's offices for — special assess-
ments.

Search city or village clerk 's of-
fice for — water taxes.



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114 NOTARIES PUBLIC. [§ 201

have been used. From the principal bases, townships of six
miles square are run out and established with regular series
of numbers counting north and south thereof, and from the
surveying meridians a like series of ranges are numbered, both
east and west of the principal meridians. In order to cor-
rect inaccuracies that would otherwise arise from the con-
vergency of meridians as they run to the north pole, and to
check errors arising from inaccuracies in measurements on
meridian lines, standard parallels or correction lines are run
and marked at every four townships or twenty-four miles
north of the base, and at every five townships, or thirty miles
south of the same. Guide meridians are next surveyed at
intervals of eight ranges, or forty-eight miles, east and west
of the principal meridian, starting north of the base line in
the first instance from the line and closing on the first stand-
ard north, then starting from the first standard and closing
on the second standard north, and so on. South of the base
line, the guide meridians start from the first standard south,
and close on the base line; then starting from the second
standard, and closing on the first standard, and again starting
from the third standard and closing on the second, and so on.
The closing comers on the base line and standard parallels
are established at the intersection of the meridianal lines
therewith, thus, owing to the convergency of meridians, oc-
casioning a double set of comers in those lines which are
designated as '* standard comers" and "closing corners. '*
The closing corners on the base line and standard parallels
the rectangular system (except in California and Oregon,
where it is otherwise by some mistake of the original sur-
veyor). These parallelograms are each subdivided into town-
ships six miles square, containing about 23,040 acres. Each
township is subdivided into 36 sections of one mile square,
each containing, as near as possible, 640 acres. These are
subdivided into quarter sections of 160 acres, and these into
quarter quarter sections of 40 acres. A tier of townships
running north and south is called a range, and each range is
numbered as it is east or west of the principal meridian.
Each township is also numbered as it is north or south of the
base line. The townships are marked by wooden posts four
inches square standing two feet deep and two feet above



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§ 202]



OOITVBYANCES AND ACKNOWLEDGMENTS.



115



the ground, marked facing the township. The sections are
marked with their numbers facing it with its township and
range. Bach quarter-section or half-mile post has on it % S.,
to indicate what it stands for. The township comer-posts are
notched with six notches on each of its four angles. All mile
posts on township lines have as many notches on two opposite
angles as they are miles distant from the township corners.



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§ 202. Inception of Title; Patents.— In the United States,
the word ** patent" when used in connection with real prop-
erty, means the title deed by which a government, either state
or federal, conveys its lands. It is the highest evidence of



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116 NOTABIES PUBLIC. [{ 203

derivatiye title known to the law, and passes fall legal title
to the land."

§203. De^ls.

§ 204. —Definition; Oonstruction*— The term ''deed'' ia
very comprehensive in its signification, and denotes not only all
classes of instruments for the conveyance of land, but any
instrument in writing under seal, whether relating to land
or any other matter. In its popular acceptation, however,
it is confined to conveyances of lands, or estates or interests
therein, and is still further restricted in its meaning to abso-
lute sales, as distinguished from mortgages, indicating con-
ditional sales, though the latter are as essentially deeds as
the former.**

A deed will be construed according to the apparent intent
where the language is defective, and, if necessary, the clauses
may be rejected or transposed so as to give it its apparent
construction.** Instruments in writing should be so construed
as to render them valid and eflPectual rather than void. Where
one part of the description is false and impossible, but, by
rejecting that a perfect description remains, the false and
impossible should be rejected."

§ 206. —Kinds of Deeds.— Quitclaim is a release deed re-
linquishing all claims to the property for a consideration. It
may be for one dollar, love and affection, so long as there is
a consideration. Tax deed is the instrument by which the oflS-
cers of the law transfer the title of the rightful owner, for
nonpayment of taxes, to a purchaser at the tax sale. Trust
deed is a form of mortgage much used in many states. A deed
is made in trust with a power of sale in favor of the mortgagee,



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 14 of 50)