Frederick Mortensen Hinch Edward Mills John.

American notary and commissioner of deeds manual: the general and statutory ... online

. (page 15 of 50)
Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 15 of 50)
Font size
QR-code for this ebook


with provisions for attorneys' fees in case of foreclosure.



ttWarveUe on Abstraets (4th velle's Vendors 353, citing Cam-
Ed.), II 148, 149. berland Building ft Loan Ass'n ▼.

4»WarveUe on Abstracts (4th Aramingo M. E. Church, 13 Phila.

Ed.), I 38. (Pa.) 171; Steton v. Mullis, 92 N.

BOBarkhausen t. Chicago, M. & C. 623.
St. P. B. Co., 142 Wis. 292, 124 SI Anderson ▼. Baughman, 7

N. W. 549, 125 N. W. 680; War- Mich. 69, 74 Am. Dec. 699.



Digitized by VjOOQIC



§ 208] CONVEYANCES AND ACKNOWLEDGITENTS. 117

§ 206. — Form of Deed; Formal Parts. — No particular form
is necessary, so long as the intent of the parties is clearly set
forth and can be readily ascertained in the deed. Uncertain
language vitiates it. The tendency is to very short forms.
When made by an attorney, they should be in the name of
the principal. The attorney must be appointed by letter of
attorney. If by a corporation, it must be executed in the cor-
poration's name by ofiScers authorized, and under the corpora-
tion seal."

The formal parts are: (1) The premises: Setting forth
parties' names, the reasons for the contract, the consideration,
with a description of the land. (2) The habendum: To
have, showing what estate passes. (3) The tenendum: To
hold, formerly the tenure, now of little meaning. (4) The red-
dendum: The reservation. (5) The conditions. (6) The
warranty: Covenant damages. (7) The covenants: The
agreement to do or not to do something, either expressed or
implied. (8) The conclusion: The execution and date.

§ 207. —Requisites of Deeds. — The requisites of a deed are
that there be suflScient parties, that it be in writing or print-
ing, on paper or parchment; that there be a consideration;
that sufficient words be used ; that it be read when required ;
that it be signed and sealed; that it be witnessed; that it be
delivered, acknowledged and recorded.**

§ 208. — ^Parties. — ^Parties to a deed are: The grantor, who
makes the deed ; the grantee, to whom it is made. Care should
be had as to the names and surnames of the parties. A deed
must be to some certain person or corporation.** All persons
having complete ownership, of sound mind, of full age, not
in duress, unless otherwise disqualified by law, can acquire



MBouyier'8 Inst. see. 2010; UBouvier's Inst. see. 2099.

Plnmmer v. Russell, 2 Bibb (Ky.) 64 Jackson ex dem. Cooper ▼.

174; Elwell v. Shaw, 16 Mass. 42, Cory, 8 Johns. (N. Y.) 388.
8 Am. Dec. 126; Hatch's
T. Barr, 1 Ohio 390.



Digitized by VjOOQIC



118 NOTARIBS PUBLIO. [§ 209

or alien title to land. In some states aliens are forbidden to
hold by statute.

§ 209. —Descriptions of Realty; Boundaries. — After the
parties to a conveyance, the description of the thing or subject-
matter conveyed is the great essential. Such description must,
either in terms or by reference to other designation, describe
the subject-matter intended to be conveyed suflSciently to
identify the same with reasonable certainty.** Land is usually
described according to the government survey,*^ or is platted,
but may be otherwise described if the identity of the prop-
erty intended to be conveyed is established. Frequently
reference is made to certain boundaries or monuments.
Boundaries are the lines between estates. They may be nat-
ural or artificial, such as monuments or stones, trees, streams
or certain objects. The line usually extends to the center
of streams and to the center of a street in cities or roads in
the country; to the shore of rivers or low tide water of the
ocean.*'' While the courts are usually liberal in construing
deeds to carry out the intention of the parties, it must be
remembered that nothing passes by a deed except what is
described in it, and parol evidence is not admissible to make
the deed operate upon land not embraced in the descriptive
words.**

§ 210. — Consideration. — ^A consideration is of little conse-
quence as between the parties, one dollar is accounted suffi-
cient; but when creditors are aflfected it becomes necessary
to inquire into it. It may be founded on a good or valuable
consideration,

§ 211. —Delivery; Escrow Agreements. — The delivery of a
deed is when its effect takes place and not from its date. A

ftftWarvelle on Abstraets (4th Flanigan, 76 Iowa 365, 89 N. W.

Ed.), fit 183, 184. 645.

66 Ante, fi 201. SSWarvelle on Abstracts (4th

•tOye. Law. Diet; Waliod ▼. Ed.), fi 186.



Digitized by VjOOQIC



§ 214] CONVEYANCES AND ACKNOWLEDGMENTS. 119

date is not necessary.^ A deed may be delivered condition-
ally to a third person, either to be delivered to the grantee
without condition when the rights of the grantee to the deed
immediately attach, or it may be delivered as an escrow.

An escrow is a conditional delivery of a deed to a stranger
until certain conditions shall be performed, to be then deliv-
ered to the grantee, the conditions to be distinctly stated at
the time of delivery .••

§ 212. — OovenantB for Title. — Covenants for title usually
are : That the vendor is lawfully seized (or in possession) of
the land ; that he has the power to convey it ; that he promises
peaceful possession to the purchaser, his heirs and assigns;
that it is free from all incumbrances; and for further assur-
ance.®^ Covenants running with the land are to be governed
and controlled by the laws of the state where the land is
situated.^

§ 213. — ^Witnesses; SeaL — Witnesses were not required at
common law. They are required now only in certain states
of this country. An unacknowledged deed requires witnesses,
but seldom does an acknowledged deed. They are necessary
to prove the issue, or genuineness. When the statutes require
two witnesses to a deed, one only wiU invalidate the deed.**

Sealing is very ancient. At common law it was required.
In many states of this country it has been abolished. A scroll
is all that is now required, except for corporations, which are
required to have their name engraved on a metal disc so as
to leave an impression on the document.

§ 214. Erasures and Errors.— Deeds must be fully complete
before delivery. Alterations made afterwards will either avoid



MBouvier's Inst. sec. 2022
McConneU v. Brown, latt. Sel
Cas. (Ky.) 459; Hood v. Brown,
2 Ohio 268; Fairbanks v. Met
calf, 8 Mass. 230; Robinson y,
Wheeler, 25 N. Y. 252; Harrington
V. Gage, 6 Vt. 532; Harvey v



60Q7C. Law Diet.; Clark ▼. Gif-
ford, 10 Wend. (N. T.) 310.

eiWarveUe on Abstraeta (4th
Ed.), 5 191.

WDalton V. Taliaferro, 101 Dl.
A pp. 592, citing 4 Kent's Comm.
472.



Alexander, 1 Band. (Va.) 219, 10 6S Thompson v. Morgan, 6 Minn.

Am. Dec. 519. 292 (Gil. 199); Parret t. Shnbhut,

5 Minn. 828 (Gil. 258).



Digitized by VjOOQIC



120 NOTARIES PUBLIC. [§ 215

or make them of no effect.^ All alterationa, erasures or in-
terlineations in deeds shonld be avoided, as they tend to
question the instrument.

§ 216. Validity of Deeds; Effect of Duress, Fraud or Un-
due Influence and Intoxication. — As a contract implies a vol-
untary assent, any influence, force, fraud or cause whatso-
ever, preventing the freedom of the consent, makes the
contract voidable, and any cause preventing reality of con-
sent makes the act void.** The distinction is illustrated in
cases of fraud. Where one party misleads another as to the
very nature of the act, no contract can result. But if a state-
ment is made which is false, which is known to be false by
the party making it, as to a material fact, intended to induce
the contract and which the other party relies upon, the con-
tract is rendered voidable, at the instance of the party de-
frauded. The validity of deeds is often attacked because of
fraud, and frequen1;ly in such cases undue influence is also
involved. Such undue influence consists in an abuse of in-
fluence or power which one person by reason of a fiduciary
relationship, or of the sickness, infirmity or necessitous
distress of the other, has over that other, thereby inducing
him to enter into a contract he would not have freely made.*^
In the case of undue influence over the maker of a deed,
equity will set it aside.^ Intoxication may also avoid a
deed.«»

Duress of a person is that condition of his mind caused by
wrongful conduct of another, rendering him incompetent to
contract by the exercise of his own free will.®* A deed made
under duress of imprisonment or fear from threats of personal
violence is voidable but not void.''*

§ 216. Recording of Deeds. — Recording of deeds, mort-
gages, liens, judgments, wills and other instruments pertain-

64 Wallace v. Harmstad, 15 Pa. 68 Johnson v. Phif or, 6 Neb. 401.

St. 462, 53 Am. Dec. 603. 69 Batavian Bank v. North, 114

65 Bays' Commercial Law, voL 1, Wis. 637, 90 N. W. 1016; Galusha

p. 79. V. Sherman, 105 Wis. 263, 81 N.

66 Bays' Commercial Law, vol. 1, W. 495, 47 L. R. A. 417.

p. 87. TOSandford v. McLean, 8 Paige

67 Howe ▼. Howe, 99 Mass. 88. (N. Y.) 117, 23 Am, Dec. 778.



Digitized by VjOOQIC



§ 218] OONVBTANOES AND ACKNOWLEDGMENTS. 121

ing to real estate, is necessary in order to give notice to the
public regarding the title of the property. Deeds and mort-
gages may be valid as between the parties and those having
notice, but an innocent purchaser might be defrauded.^^ The
recording acts usually provide that conveyances not recorded
shall be void as against subsequent purchasers in good faith
and for a valuable consideration, of the same land, or any
portion thereof, whose deed of conveyance shall be first duly
recorded; and further, that every instrument recorded in the
manner prescribed by statute shall, from the time of filing
same for record, impart notice to all persons of the contents
thereof.'^

§ 217. Essentials to Recording; Proof of Deeds.— All deeds
must either be acknowledged or proved before they can be
placed on record as evidence of the conveyance. A deed is
proved when witnesses testify to its genuineness. This they
do either by having seen the grantor sign it or declare that
he signed it. The statutes usually contain provisions govern-
ing this matter. Usually, proof of the execution may be made
by one of the subscribing witnesses.''** A witness is one who
gives oral testimony in a judicial proceeding. A witness who
signs an instrument to denote that the same was executed in his
presence is called a ''subscribing" or ** attesting" witness.''**
The competency of the witness is presumed.^'

§ 218. Registration of Titles.— The Torrens system of reg-
istration of titles is a system whereby titles to real estate
are registered as being in a certain person at the date of reg-
istration, and a certificate of title is issued by the state de-
claring title in such person.^*

71 A deed is valid as between Ed.), | 65. Bee post, { 272 et 9eq,

parties to it without being ac- ?«• O 'Sullivan v. Overton, 56

knowledged or recorded. Semple Conn. 102, 14 Atl. 300; Gelott v.

v. Mile«^, 2 Scam. (HI.) 315. Goodspeed, 8 Gush. (Mass.) 412;

Knowledge of the existence of Melcher v. Flanders, 40 N. H. 139.

an unrecorded deed may be a suffi- See also post, { 272 et teq,

cient ground for the imputation of 7Sb Cyc. Law Diet,

constructive fraud to a subsequent 78 Job v. Tebbetts, 4 Gilm. (Dl.)

purchaser. Schroeder v. Tomlinson, 143.

70 Conn. 348, 39 Atl. 484. 74 Bays' Commercial Law, vol. 9,

7tWarvelle on Abstracts (4th p. 187. Torrens law is a ajstem



Digitized by VjOOQIC



122



KOTARIES PUBLIC.



[§ 219



§ 219. Agent's Contracts Concerning Realty; Powers of
Attorney. — Contracts concerning real estate are frequently
executed through the intervention of real estate agents or
brokers, who bring the buyers and sellers together, or make
contracts for them. Such agents have no authority to con-
tract, except as the authority is specially conferred, and
they should be careful not to exceed their authority.^* By
the statute of frauds as enacted in some states, an agency to
contract for the sale of real estate is not enforceable, unless
in writing^^ Authority to execute an instrument under seal
must also be under seal. And when an appointment is for-
mally drawn up, under seal, it is said to be a power of at-
torney.'"^ Agent's contracts are frequently not signed by the
agent, who procures the signature of his principal, or, if
signed, provision is made for the signature of the principal
also. When a deed is given the broker's name may not ap-
pear. But in the case of powers of attorney, the instrument
is executed in the name of the principal by the attorney in
fact.*^

§ 220. Conveyances of Partners. — Conveyances of partner-
ships should be executed by each and all of the partners in
the same manner as deeds by tenants in common, and it seems
that a deed executed by one partner only in the name of the
firm will convey only the undivided portion of the estate



used in Australia, Gennany,
France, England and several other
countries. It is claimed to be a
simpler method of transferring
lands. It has been adopted to
some extent in Illinois, Ohio,
Massachusetts, Minnesota, Oregon,
California, Colorado, Washington
the Philippine Islands and Hawaii.

75 Bays ' Commercial Law, voL 4,
p. 87.

76 Bays' Commercial Law, voL 4,
p. 30.

77 Bays ' Commercial Law, vol. 4,
p. 31.

A power of attorney is an instru-
ment authorizing a person to act as



the attorney in fact of the person
granting it Cyc. Law Diet.

78 Bays' Commercial Law, vol. 4,
p. 88. See also Warvelle on Ab-
stracts (4th Ed.), ii 262, 263.

Deeds when made by an attorney
should be in the name of the prin-
cipal. The attorney must be ap-
pointed by letter of attorney. If
by a corporation, it must be exe-
cuted in the corporation 's name by
officers authorized, and under the
corporation seaL Bouvier's Inst,
sec. 2010; Plummer v. Bussell, 2
Bibb (Ky.) 174; Elwell v. Shaw, 16
Mass. 42, 8 Am. Dec. 126; Hatch's
Lessee v. Barr, 1 Ohio 390.



Digitized by VjOOQIC



§ 222] OONYEYANOES AND ACKNOWLEDGMENTS. 123



owned by such partner, or rather only a contingent right to
such part after the debts are paid.*"*

§ 221. Contracts and Convejrances Between Husband and
Wife; "Coverture" and "Feme Sole." — Coverture is the state
of a married woman, and a feme sole is an unmarried woman.

By the modem statutes, the incapacity of married women
to contract, as it existed at the common law, has been almost
entirely removed.*® The rule applies to conveyances, and
conveyances by husband to wife without the intervention of
a trustee or third person are upheld in courts of equity, when
suitable and meritorious, and not in fraud of creditors. In
states where the legal identity of husband and wife is no
longer recognized, such conveyances are good at law. Where
the ancient doctrine obtains, a deed from husband to wife,
without the intervention of a trustee, is void at law.*^

§ 222. Conveyances by Married Women. — ^With reference
to conveyances by married women, recent statutory enact-
ments in many states tend to remove entirely all restraints
from the free acquisition and alienation of property by mar-
ried women. Because of the common-law rule, special stat-
utory authority is necessary, however, to validate such con-
veyances. Such statutes being in derogation of the common
law, are strictly construed, and a rigid and literal compliance
with the statute is essential to vest title in the grantee. The
emancipation of married women in this respect has been
gradual, and at first the execution of deeds was attended by
many formalities, particularly as to acknowledgment and
authentication. Such formalities are in the main unessential
now, but in many jurisdictions, joinder of the husband is
necessary .•• When homesteads are conveyed, joinder of hus-
band and wife is usually necessary.**

TOWarvelle on Abstracts (4tli v. Bowman, 6 Wall. (XJ. S.) 816,

Ed.), § 249. 18 L. Ed. 736.

One partner has no right to bind SO Bays' Commercial Law, voL 1,

his copartners by deed. If eze- p. 69.

cuted in the presence of his copart- 81 Warvelle on Abstracts (4th

ners, it is deemed an execntion by Ed.), ( 242.

them. Haynes, Hntt ft Co. v. ••Warvelle on Abstracts (4th

Seachrest, 13 Iowa 455; Brooks v. Ed.), ( 243.

Sullivan, 32 Wis. 444; Thompson S8 Knox y. Brady, 74 JXL 476.



Digitized by VjOOQIC



124 NOTARIES PUBLIC. [§ 223

§ 223. Mortgages. — ^A mortgage is a conveyance by deed
of lands by a debtor (called a mortgagor) to his creditor
(called a mortgagee) as a pledge and security for the pay-
ment of the money borrowed, or the performance of a cov-
enant, with a proviso that the conveyance be void on the
payment of the money and interest on a certain day, or the
performance of the covenant by which the conveyance of the
land becomes absolute at law; yet the mortgagor has an
equity of redemption in a reasonable time and to call for a
reconveyance. A note or bond usually is given with the mort-
gage as evidence of the debt.** The mortgage is in the form
of a conditional conveyance of the fee. Mortgages as trust
deeds are aften used. They are made to a third party, as
trustee, with power to sell, allowing attorney's fees and costs,
and in many states are considered better than the usual form
of mortgage. One who transfers without recourse a promis-
sory note, together with a mortgage given to secure it, thereby
warrants the validity of the security.**

To create a lien on a homestead estate of mortgagor the
certificate of acknowledgment must show that the estate was
waived and relinquished.**

§ 224. Satisfaction of Mortgages. — ^When the debt due under
a mortgage is paid, the mortgage is discharged. Such pay-
ment must be in full, and entitles the mortgagor to a satisfac-
tion. This is an instrument which is recorded with the
register of recorder, showing payment. In some states, sat-
isfaction may be shown by an entry on the margin of the
record, thereby operating as public notice. The performance
of the conditions of the mortgage by payment before maturity
leaves the mortgagee with no estate in or title to the premises.
It leaves the mortgagor in his former estate.*'

§ 225. Mortgage Foreclosure; Redemption. — ^Where a mort-

To convey a homestead right, the Inst. sec. 884; Hall v. Byrne, 2 HL

deed and acknowledgment must 142 j Keith v. Burrows, 1 C. P.

contain a clause waiving the rights Div. 731.

of homestead. Ogden Building & 8ft Waller v. Staples, 107 Iowa

Loan Ass'n v. Mensch, 196 HI. 554, 738, 77 N. W. 570.

83 N. E. 1049, 89 Am. St. Bep. 330. 86 Id.

84 Bays' Commercial Law, vol. 9, 87Fl7e v. Berry, 181 MIms. 442,

p. 114; Cyc. Law Diet; Bouvier's 63 N. E. 1071.



Digitized by VjOOQIC



§ 227] OONVEYANOES AND ACKNOWLEDGMENTS. 125

gagor faib to pay the debt when it is due, and the mortgagee
finds that he must pursue some remedy to obtain satisfaction,
the usual remedy is that of making use of his security and
is done by means of foreclosure. Under the modern practice,
such foreclosure is either by judicial proceeding to sell the
property and pay the debt out of the proceeds, or to sell at
a nonjudicial sale under a power of sale in the mortgage.**
In the case of foreclosure, the mortgagor has the right of re-
deeming his property from the sale for a certain period of
time by paying the debt with a rate of interest provided by
law, and in certain cases a penalty. This is a right given by
statute.** The legal title of a mortgagor remains in him until
the execution of a deed, although he fails to redeem. A pur-
chaser at a foreclosure sale who fails to take out a deed with-
in the time allowed by statute has no rights which equity
can protect, although they may have had continuous posses-
sion since before the entry of the foreclosure decree.** The
purchaser at a master's sale acquires no title, but merely the
right to receive the redemption money, or a master's deed in
case the property is not redeemed.*^ A life tenant of a por-
tion of a mortgaged estate can redeem his or her portion by
paying their proportionate amount of the mortgage with pro-
portionate interest, if agreeable to the mortgagee.**

§ 226. Judicial Sales. — Judicial sales are made, under au-
thority of the court, by its officer, sheriff or marshal. The
officer conveys all the rights of the defendant in the prop-
erty sold. The sale carries no warranty, and must be con-
firmed by the court. Actions for recovery may be instituted
within a period of time, or the court, for just reasons, may
set the sale aside. At judicial or sheriflfs' sales parties buy
merely the interest or judgment, not a title.

§ 227. Action for Eecovery. — ^Action for recovery is a com-

W Bays* Commercial Law, voL 9, «0 Bradley v. Lighteap, 202 HI.

p. 123. 154, 67 N. E. 45.

89 Bays' Commercial Law, voL 9, 01 Strauss v. Tnckhom, 200 HL

p. 126. 75, 65 N. E. 683.

Period of redemption, see post, MKerse v. Miller, 169 Man. 44,

fi 272 ei seq,, Statutory Require- 47 N. E. 504.
ments.



Digitized by VjOOQIC



126 NOTAKIES PUBUO. [§ 228

mon-law right recognized by every state in the Union (Lou-
isiana excepted), allowing a limited time for the restoration
of a former right.*'

§ 228. Judgments and Writs of Execution.— Judgment is
the conclusion that naturally and regularly follows from the
premises of law and fact, and depends not, therefore, on the
arbitrary caprice of the judges, but on the settled and in-
variable principles of justice.** A judgment in the legal ac-
ceptation is the determination of some judicial tribunal cre-
ated by law for the administration of public justice, according
to law, and is in strictness the determination of the law.**
Judgments are the final decisions of the courts of law award-
ing the amount to be paid by the debtor. They are a lien
upon the properties of the debtor until they are fully satisfied,
or execution is issued. They sometimes are continued for a
period of years. They are entered in a book of records and
should be the last thing examined in a search for title.*^ Ab-
signment of judgment transfers only an equitable title.*^

An execution is the writ of the court putting into effect
the judgment. Proceedings for taking land upon execution
are stricti juris, and no title passes unless the statute is ex-
actly pursued.**

§ 229. Liens.

§ 230. — ^In General. — ^A lien is a hold or claim which one
person has upon the property of another as a security for some
debt or charge.** Taxes, dower, curtesy, leases, mechanics'
liens, mortgages and judgments are all liens on real estate.
A lien is not a property in the thing itself, nor does it con-
stitute a mere right of action for the thing. It more properly
constitutes a charge upon the thing. It is an equitable right
creditors have upon the property of the debtor. A creditor
at large cannot enforce the liability without a preliminary
judgment and execution.^

M dye. Law Diet. 108, es N. B. 665, 89 Am. St Bep.

84 In re Sedgeley Ave., 88 Pa. 250.
509. MSehroeder ▼. Tomllnson, 70

9ft Blood ▼. Bates, 81 Yt. 147. Ck>nn. 348, 89 Aa 484.

96 Evans v. Adams, 8 Green (N. WCyc Law Diet.
J.) 383. lOeean Nat. Bank ▼. Oleott^

97Sehmidt v. Shaver, 196 lU. 46 N. Y. 12.



Digitized by VjOOQIC



§ 235] CONVEYANCES AND ACKNOWLEDGMENTS. 127

§ 231. —Mechanics' Liens. — Mechanics' liens are statntorj
liens permitted in every state of the Union for the recovery
of money due for labor performed, or material furnished on
land, mines, vessels or buildings by contractors or material-
men and laborers for the owner or tenant of the property.
When the work is finished and the payment, or any part of
it, is refused, the claim must be filed within a statutory period
with an oflScer of the law, usually the county clerk. A stated
time is allowed for the payment, when suit can be instituted.
After judgment it remains a lien until satisfied unless barred
by statutory limitations. It may attach to an equitable in-
terest in real property, and when foreclosed the decree is a
lien thereon.*

§ 232. Taxes and Tax Sales. — ^A tax is the contribution im-
posed by the government for the service of the state.' Tax
sales are sales of the property of the owner for nonpayment
of taxes due the state. Taxes are allowed to run for a certain
period, then the property becomes forfeited for nonpayment
and is sold at auction to the highest bidder. After a given
period, if still unpaid, or redeemed, a tax deed is issued to the
purchaser, which bars the owner's recovery.

§ 233. Lis Pendens. — Lis pendens means literally a pending



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 15 of 50)