Herbert Thorndike Tiffany.
The law of real property and other interests in land (Volume 2) online
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5
THE LAW
xn^
OF
REAL PROPERTY
AND
OTHER INTERESTS IN LAND
BY
HERBERT THORNDIKE TIFFANY
IN TWO VOLS.
VOL. n.
SAINT PAUL
KEEFE-DAVIDSON COMPANY
1903
5
Copyright, 1'503.
by
Heebhht Thorndike Tib^awt.
V'
TABLE OF CONTENTS
VOLUME I.
PART I.
PRELIMINARY CONSIDERATIONS.
CHAPTER I.
THE NATURE OF REAL PROPERTY.
(See volume 1, p. vii.)
CHAPTER II.
TENURE AND SEISIN.
(See volume 1, p. vii.)
CHAPTER III.
ESTATES.
(See volume 1, p. viii.)
PART II.
THE OWNERSHIP OF LAND.
CHAPTER IV.
THE QUANTUM OF ESTATES.
(See volume 1, p. viii.)
CHAPTER V.
EQUITABLE OWNERSHIP.
(See volume 1, p. xi.)
CHAPTER VI.
FUTURE ESTATES AND INTERESTS.
(See volume 1, p. xii.)
G6V687
TABLE OF CONTENTS.
CHAPTER VII.
CONCURRENT OWNERSHIP.
(See volume 1, p. xiv.)
CHAPTER VIII.
ESTATES AND INTERESTS ARISING FROM MARRIAGE.
(See volume 1, p. xv.)
CHAPTER IX.
RIGHTS OF ENJOYMENT INCIDENT TO OWNERSHIP.
(See volume 1, p. xvii.)
PART 111.
RIGHT TO DISPOSE OF LAND NOT BASED
ON OWNERSHIP.
CHAPTER X.
POWERS.
(See volume 1, p. xix.)
PART IV.
RIGHTS AS TO THE USE OR PROFITS OF
ANOTHER'S LAND.
CHAPTER XI.
NATURAL RIGHTS.
(See volume 1, p. xx.)
CHAPTER XII.
EASEMENTS.
(See volume 1, p. xx.)
TABLE OF CONTENTS.
CHAPTER XIII.
PROP^ITS A PRENDRE.
(See volume 1, p. xxi.)
CHAPTER XIV.
COVENANTS RUNNING WITH THE LAND.
(See volume 1, p. xxii.)
CHAPTER XV.
RESTRICTIONS ENFORCEABLE IN EQUITY.
(See volume 1, p. xxii.)
CHAPTER XVI.
RENTS.
(See volume 1, p. xxii.)
CHAPTER XVII.
PUBLIC RIGHTS.
(See volume 1, p. xxiii.)
VOLUIV^E II.
PART V.
THE TRANSFER OF RIGHTS IN LAND.
CHAPTER XVIII.
TRANSFER BY THE GOVERNMENT.
§ 370. The nature of the government title 829
371. Grants by the United States â– 832
Public sales 833
ii
vi TABLE OF CONTENTS.
§ 371— Continued.
Pre-emption 833
Homestead entry 834
Railroad grants 834
Grants to states 835
Townsites 836
Mineral lands 836
372. Grants by the states 838
373. Spanish and Mexican grants 841
374. Patents 842
CHAPTER XIX.
VOLUNTARY TRANSFER INTER VIVOS.
I, Classes of Conveyances.
§ 375. Conveyances at common law 847
Feoffment 847
Fines and recoveries 849
Grant 849
Lease 850
Release 850
Surrender 852
Assignment 857
Exchange 857
376. Conveyances operating under the Statute of Uses. .858
377. Conveyances employed in the United States 859
Quitclaim deeds 861
378. Conveyances failing to take effect in the manner in-
tended 862
IL FoKM AND Essentials of a Conveyance.
§ 379. General considerations 863
380. Designation of the parties 865
Name of grantee left blank 867
381. "Words of conveyance 869
382. The habendum 870
383. Exceptions and reservations 872
384. Consideration 876
385. Reality of consent 878
386 Effect of alterations 880
III. Description of the Land.
§ 387. General considerations 881
388. Descripiion by government survey 884
TABLE OF CONTENTS. vii
389. Reference to plat 885
390. Monuments, courses, and distances 886
391. Boundaries on water 890
392. Boundaries on ways 893
393. Appurtenances 897
IV. Covenants for Title.
§ 394. General considerations 899
395. Covenant for seisin 901
396. Covenant for right to convey 903
397. Covenant against incumbrances 904
398. Covenants for quiet enjoyment and of warranty. . .908
399. Covenant for further assurance 911
400. The measure of damages 912
401. Covenants running with the land 914
V. Execution of the Conveyance.
§ 402. Signing 918
403. Sealing 920
404. Witnesses 923
405. Acknowledgment 924
By married woman 925
Conclusiveness of certificate 925
Proof in place of acknowledgment 927
406. Delivery 927
In escrow 931
Effect of delivery 934
407. Acceptance 935
408. Execution by agent 937
CHAPTER XX.
TRANSFER BY WILL.
409. General considerations 941
410. Signing by testator 944
411. Acknowledgment and publication 946
412. Competency of witnesses 947
413. Attestation and subscription 950
414. Holographic and nuncupative wills 951
it5. Undue influence 952
416. Lapsed and void devises 953
Effect of residuary clause 955
417. The revocation of a will 956
Cancellation or destruction of instrument 957
Dependent relative revocation 959
Subsequent will 960
Marriage or birth of issue 962
viii TABLE OF CONTENTS.
§ 417— Continued.
Alienation of land 964
418. Children or issue omitted from will 966
419. Revival of will 967
420. Republication 969
CHAPTER XXI.
DEDICATION.
421. The nature of dedication 971
422. Mode of dedication 973
423. Acceptance 976
424. Effect of dedication 978
CHAPTER XXII.
INTESTATE SUCCESSION.
425. General considerations 982
426. Descent to issue 984
427. Surviving consort as heir 984
428. Parent as heir 986
429. Descent to collateral kindred 986
430. Kindred of the half blood 987
431. Representation 988
432. Ancestral lands 990
433. Illegitimate children .• 990
434. Unborn children 991
435. Advancements 992
CHAPTER XXIII.
ADVERSE POSSESSION OF LAND.
436. General considerations 996
437. Duration and continuity of possession 998
438. Tacking 1000
439. Personal disabilities 1003
440. Exception in favor of the sovereign 1005
441. Actual and visible possession 1006
442. Exclusiveness of possession 1008
443. Hostile character of possession 1009
Mistake in locating boundary 1013
444. Extent of possession 1015
TABLE OF CONTENTS. ix
CHAPTER XXIV.
PRESCRIPTION FOR INCORPOREAL THINGS.
§ 445. General considerations 1020
446. Tacking 1022
447. Personal disabilities 1022
448. Continuity of user 1023
449. Exclusiveness of user 1025
450. Hostile character of user 1025
451. Specific rights 1028
452. Rights in the public 1032
CHAPTER XXV.
ACCRETION.
453. General considerations 1034
454. Apportionment of accretions 1037
455. Islands 1038
CHAPTER XXVI.
ESTOPPEL.
456. Transfer of after-acquired title 1040
457. Estoppel by representation 1045
CHAPTER XXVII.
FORFEITURE AND ESCHEAT.
§ 458. Escheat 1049
459. Forfeiture 1050
To state 1050
To individual 1052
X TABLE OF CONTENTS.
CHAPTER XXVIII.
TRANSFER UNDER JUDICIAL PROCESS OR DECREE.
§ 460. Sales and transfers under execution 1053
461. Sales In equity at the instance of creditors 1057
462. Sales of decedents' lands 1057
463. Sales of lands of infants and insane persons 1060
464. Sales and transfers for purpose of partition 1060
465. Equitable decrees transferring title 1061
466. Adjudications of bankruptcy 1062
CHAPTER XXIX.
TRANSFER FOR NONPAYMENT OF TAXES.
467. Character of title acquired 1063
468. Judgment for taxes 1066
469. Forfeiture to state 1066
470. Remedial legislation 1067
CHAPTER XXX.
APPROPRIATION UNDER EMINENT DOMAIN.
471. The power to appropriate ' 1068
472. Rights subject to appropriation 1069
473. The mode of appropriation 1071
474. Time of passing of title 1074
CHAPTER XXXI.
NOTICE, PRIORITY, AND RECORDING.
475. The equitable doctrines 1075
476. The recording acts 1077
477. Sufficiency of record 1081
478. Persons affected with notice by record 1083
479. Notice as substitute for recording 1084
480. Notice from possession 1088
481. Notice from statements in instruments of title 1090
TABLE OF CONTENTS. xi
482. Purchasers under particular classes of conveyances 1091
483. Purchasers for value 1093
484. Purchasers with notice from purchasers without notice. .1095
485. I*urchasers without notice from purchasers with notice. .1095
486. Purchasers at execution sales 1097
487. Lis pendens 1098
CHAPTER XXXII.
REGISTRATION OP TITLE.
§ 488. The purpose of the legislation 1101
489. The method of registration 1102
490. Transfers after registration 1104
491. Equitable interests llo5
492. Liens 1105
493. Transfer of decedent's land 1106
CHAPTER XXXIII.
RESTRICTIONS UPON THE FREEDOM OF TRANSFER.
494. General considerations 1108
495. Conveyances in fraud of creditors 1109
496. Conveyances in fraud of subsequent purchasers 1114
497. Conveyances in violation of the bankrupt act 1117
498. Transfers by disseisees 1118
499. The homestead exemption 1121
Persons entitled to the right 1122
Land in which the right exists 1124
Character of the claimant's interest in the land 1127
Debts to which the exemption extends 1128
Claim and selection 1131
Transfer of the homestead property 1131
Loss of rights by abandonment 1134
Waiver of rights 1134
Federal homestead exemption 1135
500. Restriction in creation of estate 1135
Estates in fee simple 1135
Estates in fee tail 1139
Estates for life 1140
Estates for years 1142
xii TABLE OF CONTENTS.
CHAPTER XXXIV.
PERSONAL DISABILITIES AS TO THE TRANSFER OF LAND.
§ 501. Married women 1144
Conveyances between husband and wife 1145
Transfer by will 1147
502. Infants 1147
Transfer by will 1152
503. Persons mentally incapacitated 1152
Testamentary capacity 1156
504. Corporations 1156
505. Aliens 1158
505a. Criminals 1161
PART VI.
LIENS.
CHAPTER XXXV.
MORTGAGES,
The NATtTRE and Essentials of a Mortgage.
506. Historical development 1165
507. Legal and equitable theories 1167
508. The right of redemption 1170
509. Interests subject to mortgage 1170
Future acquisitions 1172
510. The ordinary form of a mortgage 1175
511. Separate defeasance 11 77
512. Conveyance absolute in form 1178
Sale with right of repurchase 1181
513. The obligation secured 1183
Description of obligation 1184
Future advances 1185
Mortgage to indemnify surety 1188
Change in amount or evidence of obligation 1188
Personal liability of mortgagor 1189
Mortgage to secure support 1189
514. Illegality of purpose of mortgage 1190
515. Agreements for collateral advantage 1192
TABLE OF CONTENTS. xiii
II. Rights and Liabilities Incident to the Mortgage Relation.
§ 516. The nature of the mortgagor's interest 1194
517. The nature of the mortgagee's interest 1196
518. The relation not fiduciary 1198
519. The right to possession of the land 1199
520. Rents and profits 1201
Mortgagor in possession 1201
Mortgagee in possession ' 1202
Annual rests 1203
521. Effect of a lease of the land 1204
522. Expenditures by mortgagee 1205
523. Insurance 1207
524. Injuries to the land 1211
Remedies of the mortgagee 1211
Remedies of the mortgagor 1213
III. The Transfer of Mortgaged Land.
§ 525. General considerations 1214
Transfer to mortgagee 1215
526. Personal liability of the transferee 1216
527. Mortgagor becoming surety 1218
528. Enforcement of personal liability by transferee. . .1219
529. The transferee's right to question mortgage 1221
530. Transfer of part of land 1221
IV. The Transfer of a Mortgage.
§ 531. Express transfer of mortgage 1225
532. Transfer of mortgage debt 1226
533. Transfer of part of debt 1227
534. Transfer of mortgage without debt 1229
535. Freedom of transfer from equities 1230
536. Record and notice 1232
V. Payment, Redemption, and Discharge.
§ 537. Payment or tender before default 1235
538. Payment or tender after default 1236
539. Formal discharge or satisfaction 1238
540. Enforcement of right of redemption 1239
Bar by lapse of time 1240
541. Persons entitled to redeem 1241
542. Amount necessary for redemption 1242
543. Tacking and consolidation 1242
Tacking unsecured claims 1244
544. Exoneration and contribution 1245
545. Subrogation of person redeeming 1246
xiv TABLE OF CONTENTS.
546. Marshaling of securities 1249
547. Merger of mortgage 1250
VI. Foreclosure.
§ 548. Accrual of the right to foreclose 1253
549. Bar by lapse of time 1254
Bar of obligation secured 1256
550. Strict foreclosure in equity 1257
551. Foreclosure by entry 1258
552. Foreclosure by writ of entry 1259
553. Equitable proceeding for sale 1260
554. Parties to proceeding 1262
555. Power of sale 1267
Mode of procedure 1271
Sale under deed of trust 1273
556. Scire facias 1275
557. Stipulation for attorney's fees 1275
558. Enforcement of personal liability 1276
CHAPTER XXXVI.
EQUITABLE LIENS.
§ 559. General considerations 1278
560. Express charges on land 1279
561. Agreements for security (equitable mortgages) 1282
By deposit of title deeds 1284
562. Lien for improvements 1286
563. Lien for owelty of partition 1287
564. Implied lien of grantor (vendor's lien) 1287
Persons affected by the lien 1289
Transfer of the lien 1290
Waiver 1291
565. Express lien of grantor 1292
566. Vendor's lien before conveyance 1293
567. Vendee's lien 1294
CHAPTER XXXVII.
STATUTORY LIENS.
568. General considerations 1296
TABLE OF CONTENTS. XV
569. Mechanics' liens 1297
Persons entitled to lien 1297
Contract or consent of owner 1300
Priorities l^^l
Assertion and enforcement of lien > 1303
Release or waiver of lien 1304
570. Judgment liens 1304
Character of the judgment 1306
Lands and interests therein subject to the lien 1308
Priorities â– l^H
571. Attachment liens 1314
572. Execution liens 1318
573. Liens for taxes and assessments 1319
574. The lien of decedent's debts 1321
575. Liens on crops 1322
576. The statutory lien for improvements 1323
577. Widow's allowance 1323
PART V.
THE TRANSFER OF RIGHTS IN LAND.
CHAPTER XVIII.
TRANSFER BY THE GOVERNMENT.
§ 370. The nature of the government title.
371. Grants by the United States.
372. Grants by the states.
373. Spanish and Mexican grants.
374. Patents.
The title to all lands belonging to individual owners was
originally acquired from the federal or a state government, or
from a foreign government formerly owning some part of the
present territory included in the United States.
The public lands of the United States have been disposed
of by the federal government in various modes, including pub-
lic sale, sale to settlers on the land under the "pre-emption"
law, gifts to settlers under the "homestead" law, grants to aid
in the construction of railroads, and grants to states to aid in
education and internal improvements. Mineral lands have been
granted, under a separate system, to persons working them.
A grant by the government may be a legislative act, tak-
ing effect immediately; but otherwise a patent is necessary
to vest the legal title to government land in an individual.
A patent which is valid on its face is conclusive in a court of
law, but may, in equity, be shown to have been procured or
issued by fraud or mistake.
§ 370. The nature of the government title.
All the land in the United States, now owned by individ-
(829)
§ 370 REAL PROPERTY. [Ch. 18
uals, formerly belonged either to the federal government, to
an individual state, or to a foreign nationality, which dis-
posed of it to an individual proprietor before that particular
territory became a part of this country. These grants of land
by foreign states to individuals, made before the incorpora-
tion of that particular territory in the United States, are
the chief basis of titles in some parts of the country, and it
seems proper to briefly sketch the history of the various acqui-
sitions of territory by this nation, in order better to under-
stand the various classes of government grants on which the
existing proprietary rights of individuals may be based.
The British claim of dominion over the territory included
within the original thirteen colonies was based upon discov-
ery, consummated by possession, the wandering Indian tribes
being regarded as having a mere right of occupancy.^ The
dominion and ownership thus acquired was, in some of the
colonies, granted by the British crown to individual pro-
prietors or proprietary companies, by whom parts of the
land were in turn granted to individuals. In others of the
colonies the title to the soil remained in the British crown,
and grants were made to individuals by the governor of the
colony in the name of the king. After the Revolution, the
title of the crown to lands still undisposed of passed to the
states, and lands belonging to the original proprietaries were
in some cases confiscated. Thus it may be said that the title
to all land within the original thirteen states is derived, di-
rectly or indirectly, from the British cro^vn, with the excep-
tion only of considerable bodies of land in the state of New
York, the title to which is based on grants by the Dutch gov-
ernment or its representatives, which grants, however, were
recognized and confirmed by the British crown upon the con-
quest of that territory.
The territory west of the Allegheny mountains and east of
1 Johnson's Lessee v. Mcintosh, 8 Wheat. (U. S.) 543.
(830)
Ch. 18] TRANSFERS BY GOVERNMENT. ^ 370
the Mississippi river, wliieli had been claimed by the French,
came, as a result of the French and Indian war, and of the
treaty of Paris in 1703, nnder the exclusive dominion of
England. The lands within this territory were, by royal
proclamation, set ajDart as "crowm lands." After the sepa-
ration of the colonies from England, a number of the col-
onies asserted claims to parts of these crown lands, as being
included within their limits under their roj'al charters.
These claims, so far as concerned what was known as the
''j^orthwest Territory" — that is, the territory northwest of
the Ohio river — were opposed by the other colonies in the
negotiations leading up to the Articles of Confederation, and
finally the colonies asserting such claims ceded practically all
their lands, or their claims thereto, within the limits of such
territory, to the confederation. Of the territory south of
the Ohio river, the state of Kentucky was formed out of that
part of Virginia west of the Allegheny mountains, w^hile the
balance of this territory, so far south as the Spanish terri-
tory of Florida, was ceded to congress by the respective
states claiming it.
In 1803, the United States purchased from France the
"Louisiana" territory, which was bounded on the east by
the Mississippi river, and on the west by a line which ran,
approximately, along the present eastern boundary of Idaho,
and through the center of what are now Colorado and New
Mexico. This territory extended north to Canada, and
south to the Arkansas river and the present northern bound-
ary of Texas. In 1819, the "Florida" purchase w^as made
from Spain, this including the present Florida and parts of
Mississippi, Alabama, and Georgia. In 1845, Texas, w^hich
had obtained independence from Mexico in 1836, was an-
nexed to the United States. In 1848, as a result of the war
with Mexico, that nation ceded to the United States terri-
tory included, approximately, within the present limits of
(831)
§ 371 REAL PROPERTY. [Ch. 18
California, Nevada, Utah, Arizona, and within parts of Colo-
rado and ISTew Mexico, it extending in effect from the Pacific
ocean to the western limit of the Louisiana purchase; and
subsequently, in 1853, a comparatively small portion of ter-
ritory, adjoining the present Mexican boundary, was pur-
chased from Mexico, in order to settle a question as to the
limits of the cession of 1848, this being known as the "Gads-
den Purchase." In 1846, by treaty with Great Britain, the
territory comprising that now occupied by Washington, Ore-
gon, and Idaho, which had been in dispute between the two
countries for many years, was ceded by Great Britain, this
country ceding in return all claim to the territory to the
north thereof. In 1867 the present territory of Alaska was
purchased from Russia.
While by far the greater part of the lands of which either
the United States government or individual states have had
the ownership and control has been acquired either from a
foreign state or by cession from the general government to
a state, or vice versa, land may be acquired from individual
owners, by either the United States or an individual state, by
forfeiture, escheat, the exercise of the power of eminent do-
main, or voluntary transfer.
§ 371. Grants by the United States.
The territory ceded to the confederation by individual
states, and that acquired by the present government from
foreign powers, was, for the most part, iree from any claims
of ownership by individuals, and was therefore open to dis-
position by the government in such a way as seemed ex-
pedient. The land thus owned and controlled by the gov-
ernment, known as "public land," has been gradually dis-
posed of to individuals and corporations by various methods,
intended, and usually adapted, to aid in the settlement and
(832)
Ch_ 18] TRANSFERS BY GOVERNMENT. § 371
industrial development of the country. The more important
methods of disposition which have been adopted v^^ill be
briefly described.
Public sales.
In the early period of the land system it was the cnstom
to offer lands, as soon as surveyed, at public sale, in accord-
ance with a proclamation by the president, and at a mini-
mum price.- This system of disposing of public lands gave
room for much abuse and oppression, it often occurring that
the land had been improved by actual settlers, who would
be dispossessed by purchasers at these sales, and it gradu-
ally fell into disuse. It is now to some extent abolished by
statute.^ The amount of land held under title thus acquired
from the government is not large.
Pre-emption.
In consequence of the evils resulting from the system of
public sales, the "pre-emption" system was instituted, by
which one who settled on one hundred and sixty acres of
land, improving it and erecting a dwelling thereon, was en-
titled to purchase the land in preference to any other per-
son. After settling on the land, he was required to file a
statement or "entry" in the land oflSce within a certain time,
declaring his purpose to claim the right of pre-emption, and
also to file proof that he was entitled to the right, and to
pay the sum fixed by law as the purchase price. He then
received a certificate of entry.^ Before making such proof
and payment, the claimant was regarded as having merely
a privilege to purchase the land, of which he might be de-
2 See Rev. St. U. S. §§ 2353, 2357-2360.
•:See 26 U. S. Stat. 1099, §§ 9, 10; 1 Dembitz, Land Titles, p. 620.
note.
4 Rev. St. U. S. §§ 2257-2288.
(833)
Real Prop.— 53.
§ 371 REAL PROPERTY. [Ch. 18
prived by the government by a grant or sale to others.^ And
such privilege or right of pre-emption could not, by the ex-
press provision of the statute, be assig-ned to another person,
though the pre-em23tor could transfer his interest after pay-
ment and issue of the certificate.^ The pre-emption law
±
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5
THE LAW
xn^
OF
REAL PROPERTY
AND
OTHER INTERESTS IN LAND
BY
HERBERT THORNDIKE TIFFANY
IN TWO VOLS.
VOL. n.
SAINT PAUL
KEEFE-DAVIDSON COMPANY
1903
5
Copyright, 1'503.
by
Heebhht Thorndike Tib^awt.
V'
TABLE OF CONTENTS
VOLUME I.
PART I.
PRELIMINARY CONSIDERATIONS.
CHAPTER I.
THE NATURE OF REAL PROPERTY.
(See volume 1, p. vii.)
CHAPTER II.
TENURE AND SEISIN.
(See volume 1, p. vii.)
CHAPTER III.
ESTATES.
(See volume 1, p. viii.)
PART II.
THE OWNERSHIP OF LAND.
CHAPTER IV.
THE QUANTUM OF ESTATES.
(See volume 1, p. viii.)
CHAPTER V.
EQUITABLE OWNERSHIP.
(See volume 1, p. xi.)
CHAPTER VI.
FUTURE ESTATES AND INTERESTS.
(See volume 1, p. xii.)
G6V687
TABLE OF CONTENTS.
CHAPTER VII.
CONCURRENT OWNERSHIP.
(See volume 1, p. xiv.)
CHAPTER VIII.
ESTATES AND INTERESTS ARISING FROM MARRIAGE.
(See volume 1, p. xv.)
CHAPTER IX.
RIGHTS OF ENJOYMENT INCIDENT TO OWNERSHIP.
(See volume 1, p. xvii.)
PART 111.
RIGHT TO DISPOSE OF LAND NOT BASED
ON OWNERSHIP.
CHAPTER X.
POWERS.
(See volume 1, p. xix.)
PART IV.
RIGHTS AS TO THE USE OR PROFITS OF
ANOTHER'S LAND.
CHAPTER XI.
NATURAL RIGHTS.
(See volume 1, p. xx.)
CHAPTER XII.
EASEMENTS.
(See volume 1, p. xx.)
TABLE OF CONTENTS.
CHAPTER XIII.
PROP^ITS A PRENDRE.
(See volume 1, p. xxi.)
CHAPTER XIV.
COVENANTS RUNNING WITH THE LAND.
(See volume 1, p. xxii.)
CHAPTER XV.
RESTRICTIONS ENFORCEABLE IN EQUITY.
(See volume 1, p. xxii.)
CHAPTER XVI.
RENTS.
(See volume 1, p. xxii.)
CHAPTER XVII.
PUBLIC RIGHTS.
(See volume 1, p. xxiii.)
VOLUIV^E II.
PART V.
THE TRANSFER OF RIGHTS IN LAND.
CHAPTER XVIII.
TRANSFER BY THE GOVERNMENT.
§ 370. The nature of the government title 829
371. Grants by the United States â– 832
Public sales 833
ii
vi TABLE OF CONTENTS.
§ 371— Continued.
Pre-emption 833
Homestead entry 834
Railroad grants 834
Grants to states 835
Townsites 836
Mineral lands 836
372. Grants by the states 838
373. Spanish and Mexican grants 841
374. Patents 842
CHAPTER XIX.
VOLUNTARY TRANSFER INTER VIVOS.
I, Classes of Conveyances.
§ 375. Conveyances at common law 847
Feoffment 847
Fines and recoveries 849
Grant 849
Lease 850
Release 850
Surrender 852
Assignment 857
Exchange 857
376. Conveyances operating under the Statute of Uses. .858
377. Conveyances employed in the United States 859
Quitclaim deeds 861
378. Conveyances failing to take effect in the manner in-
tended 862
IL FoKM AND Essentials of a Conveyance.
§ 379. General considerations 863
380. Designation of the parties 865
Name of grantee left blank 867
381. "Words of conveyance 869
382. The habendum 870
383. Exceptions and reservations 872
384. Consideration 876
385. Reality of consent 878
386 Effect of alterations 880
III. Description of the Land.
§ 387. General considerations 881
388. Descripiion by government survey 884
TABLE OF CONTENTS. vii
389. Reference to plat 885
390. Monuments, courses, and distances 886
391. Boundaries on water 890
392. Boundaries on ways 893
393. Appurtenances 897
IV. Covenants for Title.
§ 394. General considerations 899
395. Covenant for seisin 901
396. Covenant for right to convey 903
397. Covenant against incumbrances 904
398. Covenants for quiet enjoyment and of warranty. . .908
399. Covenant for further assurance 911
400. The measure of damages 912
401. Covenants running with the land 914
V. Execution of the Conveyance.
§ 402. Signing 918
403. Sealing 920
404. Witnesses 923
405. Acknowledgment 924
By married woman 925
Conclusiveness of certificate 925
Proof in place of acknowledgment 927
406. Delivery 927
In escrow 931
Effect of delivery 934
407. Acceptance 935
408. Execution by agent 937
CHAPTER XX.
TRANSFER BY WILL.
409. General considerations 941
410. Signing by testator 944
411. Acknowledgment and publication 946
412. Competency of witnesses 947
413. Attestation and subscription 950
414. Holographic and nuncupative wills 951
it5. Undue influence 952
416. Lapsed and void devises 953
Effect of residuary clause 955
417. The revocation of a will 956
Cancellation or destruction of instrument 957
Dependent relative revocation 959
Subsequent will 960
Marriage or birth of issue 962
viii TABLE OF CONTENTS.
§ 417— Continued.
Alienation of land 964
418. Children or issue omitted from will 966
419. Revival of will 967
420. Republication 969
CHAPTER XXI.
DEDICATION.
421. The nature of dedication 971
422. Mode of dedication 973
423. Acceptance 976
424. Effect of dedication 978
CHAPTER XXII.
INTESTATE SUCCESSION.
425. General considerations 982
426. Descent to issue 984
427. Surviving consort as heir 984
428. Parent as heir 986
429. Descent to collateral kindred 986
430. Kindred of the half blood 987
431. Representation 988
432. Ancestral lands 990
433. Illegitimate children .• 990
434. Unborn children 991
435. Advancements 992
CHAPTER XXIII.
ADVERSE POSSESSION OF LAND.
436. General considerations 996
437. Duration and continuity of possession 998
438. Tacking 1000
439. Personal disabilities 1003
440. Exception in favor of the sovereign 1005
441. Actual and visible possession 1006
442. Exclusiveness of possession 1008
443. Hostile character of possession 1009
Mistake in locating boundary 1013
444. Extent of possession 1015
TABLE OF CONTENTS. ix
CHAPTER XXIV.
PRESCRIPTION FOR INCORPOREAL THINGS.
§ 445. General considerations 1020
446. Tacking 1022
447. Personal disabilities 1022
448. Continuity of user 1023
449. Exclusiveness of user 1025
450. Hostile character of user 1025
451. Specific rights 1028
452. Rights in the public 1032
CHAPTER XXV.
ACCRETION.
453. General considerations 1034
454. Apportionment of accretions 1037
455. Islands 1038
CHAPTER XXVI.
ESTOPPEL.
456. Transfer of after-acquired title 1040
457. Estoppel by representation 1045
CHAPTER XXVII.
FORFEITURE AND ESCHEAT.
§ 458. Escheat 1049
459. Forfeiture 1050
To state 1050
To individual 1052
X TABLE OF CONTENTS.
CHAPTER XXVIII.
TRANSFER UNDER JUDICIAL PROCESS OR DECREE.
§ 460. Sales and transfers under execution 1053
461. Sales In equity at the instance of creditors 1057
462. Sales of decedents' lands 1057
463. Sales of lands of infants and insane persons 1060
464. Sales and transfers for purpose of partition 1060
465. Equitable decrees transferring title 1061
466. Adjudications of bankruptcy 1062
CHAPTER XXIX.
TRANSFER FOR NONPAYMENT OF TAXES.
467. Character of title acquired 1063
468. Judgment for taxes 1066
469. Forfeiture to state 1066
470. Remedial legislation 1067
CHAPTER XXX.
APPROPRIATION UNDER EMINENT DOMAIN.
471. The power to appropriate ' 1068
472. Rights subject to appropriation 1069
473. The mode of appropriation 1071
474. Time of passing of title 1074
CHAPTER XXXI.
NOTICE, PRIORITY, AND RECORDING.
475. The equitable doctrines 1075
476. The recording acts 1077
477. Sufficiency of record 1081
478. Persons affected with notice by record 1083
479. Notice as substitute for recording 1084
480. Notice from possession 1088
481. Notice from statements in instruments of title 1090
TABLE OF CONTENTS. xi
482. Purchasers under particular classes of conveyances 1091
483. Purchasers for value 1093
484. Purchasers with notice from purchasers without notice. .1095
485. I*urchasers without notice from purchasers with notice. .1095
486. Purchasers at execution sales 1097
487. Lis pendens 1098
CHAPTER XXXII.
REGISTRATION OP TITLE.
§ 488. The purpose of the legislation 1101
489. The method of registration 1102
490. Transfers after registration 1104
491. Equitable interests llo5
492. Liens 1105
493. Transfer of decedent's land 1106
CHAPTER XXXIII.
RESTRICTIONS UPON THE FREEDOM OF TRANSFER.
494. General considerations 1108
495. Conveyances in fraud of creditors 1109
496. Conveyances in fraud of subsequent purchasers 1114
497. Conveyances in violation of the bankrupt act 1117
498. Transfers by disseisees 1118
499. The homestead exemption 1121
Persons entitled to the right 1122
Land in which the right exists 1124
Character of the claimant's interest in the land 1127
Debts to which the exemption extends 1128
Claim and selection 1131
Transfer of the homestead property 1131
Loss of rights by abandonment 1134
Waiver of rights 1134
Federal homestead exemption 1135
500. Restriction in creation of estate 1135
Estates in fee simple 1135
Estates in fee tail 1139
Estates for life 1140
Estates for years 1142
xii TABLE OF CONTENTS.
CHAPTER XXXIV.
PERSONAL DISABILITIES AS TO THE TRANSFER OF LAND.
§ 501. Married women 1144
Conveyances between husband and wife 1145
Transfer by will 1147
502. Infants 1147
Transfer by will 1152
503. Persons mentally incapacitated 1152
Testamentary capacity 1156
504. Corporations 1156
505. Aliens 1158
505a. Criminals 1161
PART VI.
LIENS.
CHAPTER XXXV.
MORTGAGES,
The NATtTRE and Essentials of a Mortgage.
506. Historical development 1165
507. Legal and equitable theories 1167
508. The right of redemption 1170
509. Interests subject to mortgage 1170
Future acquisitions 1172
510. The ordinary form of a mortgage 1175
511. Separate defeasance 11 77
512. Conveyance absolute in form 1178
Sale with right of repurchase 1181
513. The obligation secured 1183
Description of obligation 1184
Future advances 1185
Mortgage to indemnify surety 1188
Change in amount or evidence of obligation 1188
Personal liability of mortgagor 1189
Mortgage to secure support 1189
514. Illegality of purpose of mortgage 1190
515. Agreements for collateral advantage 1192
TABLE OF CONTENTS. xiii
II. Rights and Liabilities Incident to the Mortgage Relation.
§ 516. The nature of the mortgagor's interest 1194
517. The nature of the mortgagee's interest 1196
518. The relation not fiduciary 1198
519. The right to possession of the land 1199
520. Rents and profits 1201
Mortgagor in possession 1201
Mortgagee in possession ' 1202
Annual rests 1203
521. Effect of a lease of the land 1204
522. Expenditures by mortgagee 1205
523. Insurance 1207
524. Injuries to the land 1211
Remedies of the mortgagee 1211
Remedies of the mortgagor 1213
III. The Transfer of Mortgaged Land.
§ 525. General considerations 1214
Transfer to mortgagee 1215
526. Personal liability of the transferee 1216
527. Mortgagor becoming surety 1218
528. Enforcement of personal liability by transferee. . .1219
529. The transferee's right to question mortgage 1221
530. Transfer of part of land 1221
IV. The Transfer of a Mortgage.
§ 531. Express transfer of mortgage 1225
532. Transfer of mortgage debt 1226
533. Transfer of part of debt 1227
534. Transfer of mortgage without debt 1229
535. Freedom of transfer from equities 1230
536. Record and notice 1232
V. Payment, Redemption, and Discharge.
§ 537. Payment or tender before default 1235
538. Payment or tender after default 1236
539. Formal discharge or satisfaction 1238
540. Enforcement of right of redemption 1239
Bar by lapse of time 1240
541. Persons entitled to redeem 1241
542. Amount necessary for redemption 1242
543. Tacking and consolidation 1242
Tacking unsecured claims 1244
544. Exoneration and contribution 1245
545. Subrogation of person redeeming 1246
xiv TABLE OF CONTENTS.
546. Marshaling of securities 1249
547. Merger of mortgage 1250
VI. Foreclosure.
§ 548. Accrual of the right to foreclose 1253
549. Bar by lapse of time 1254
Bar of obligation secured 1256
550. Strict foreclosure in equity 1257
551. Foreclosure by entry 1258
552. Foreclosure by writ of entry 1259
553. Equitable proceeding for sale 1260
554. Parties to proceeding 1262
555. Power of sale 1267
Mode of procedure 1271
Sale under deed of trust 1273
556. Scire facias 1275
557. Stipulation for attorney's fees 1275
558. Enforcement of personal liability 1276
CHAPTER XXXVI.
EQUITABLE LIENS.
§ 559. General considerations 1278
560. Express charges on land 1279
561. Agreements for security (equitable mortgages) 1282
By deposit of title deeds 1284
562. Lien for improvements 1286
563. Lien for owelty of partition 1287
564. Implied lien of grantor (vendor's lien) 1287
Persons affected by the lien 1289
Transfer of the lien 1290
Waiver 1291
565. Express lien of grantor 1292
566. Vendor's lien before conveyance 1293
567. Vendee's lien 1294
CHAPTER XXXVII.
STATUTORY LIENS.
568. General considerations 1296
TABLE OF CONTENTS. XV
569. Mechanics' liens 1297
Persons entitled to lien 1297
Contract or consent of owner 1300
Priorities l^^l
Assertion and enforcement of lien > 1303
Release or waiver of lien 1304
570. Judgment liens 1304
Character of the judgment 1306
Lands and interests therein subject to the lien 1308
Priorities â– l^H
571. Attachment liens 1314
572. Execution liens 1318
573. Liens for taxes and assessments 1319
574. The lien of decedent's debts 1321
575. Liens on crops 1322
576. The statutory lien for improvements 1323
577. Widow's allowance 1323
PART V.
THE TRANSFER OF RIGHTS IN LAND.
CHAPTER XVIII.
TRANSFER BY THE GOVERNMENT.
§ 370. The nature of the government title.
371. Grants by the United States.
372. Grants by the states.
373. Spanish and Mexican grants.
374. Patents.
The title to all lands belonging to individual owners was
originally acquired from the federal or a state government, or
from a foreign government formerly owning some part of the
present territory included in the United States.
The public lands of the United States have been disposed
of by the federal government in various modes, including pub-
lic sale, sale to settlers on the land under the "pre-emption"
law, gifts to settlers under the "homestead" law, grants to aid
in the construction of railroads, and grants to states to aid in
education and internal improvements. Mineral lands have been
granted, under a separate system, to persons working them.
A grant by the government may be a legislative act, tak-
ing effect immediately; but otherwise a patent is necessary
to vest the legal title to government land in an individual.
A patent which is valid on its face is conclusive in a court of
law, but may, in equity, be shown to have been procured or
issued by fraud or mistake.
§ 370. The nature of the government title.
All the land in the United States, now owned by individ-
(829)
§ 370 REAL PROPERTY. [Ch. 18
uals, formerly belonged either to the federal government, to
an individual state, or to a foreign nationality, which dis-
posed of it to an individual proprietor before that particular
territory became a part of this country. These grants of land
by foreign states to individuals, made before the incorpora-
tion of that particular territory in the United States, are
the chief basis of titles in some parts of the country, and it
seems proper to briefly sketch the history of the various acqui-
sitions of territory by this nation, in order better to under-
stand the various classes of government grants on which the
existing proprietary rights of individuals may be based.
The British claim of dominion over the territory included
within the original thirteen colonies was based upon discov-
ery, consummated by possession, the wandering Indian tribes
being regarded as having a mere right of occupancy.^ The
dominion and ownership thus acquired was, in some of the
colonies, granted by the British crown to individual pro-
prietors or proprietary companies, by whom parts of the
land were in turn granted to individuals. In others of the
colonies the title to the soil remained in the British crown,
and grants were made to individuals by the governor of the
colony in the name of the king. After the Revolution, the
title of the crown to lands still undisposed of passed to the
states, and lands belonging to the original proprietaries were
in some cases confiscated. Thus it may be said that the title
to all land within the original thirteen states is derived, di-
rectly or indirectly, from the British cro^vn, with the excep-
tion only of considerable bodies of land in the state of New
York, the title to which is based on grants by the Dutch gov-
ernment or its representatives, which grants, however, were
recognized and confirmed by the British crown upon the con-
quest of that territory.
The territory west of the Allegheny mountains and east of
1 Johnson's Lessee v. Mcintosh, 8 Wheat. (U. S.) 543.
(830)
Ch. 18] TRANSFERS BY GOVERNMENT. ^ 370
the Mississippi river, wliieli had been claimed by the French,
came, as a result of the French and Indian war, and of the
treaty of Paris in 1703, nnder the exclusive dominion of
England. The lands within this territory were, by royal
proclamation, set ajDart as "crowm lands." After the sepa-
ration of the colonies from England, a number of the col-
onies asserted claims to parts of these crown lands, as being
included within their limits under their roj'al charters.
These claims, so far as concerned what was known as the
''j^orthwest Territory" — that is, the territory northwest of
the Ohio river — were opposed by the other colonies in the
negotiations leading up to the Articles of Confederation, and
finally the colonies asserting such claims ceded practically all
their lands, or their claims thereto, within the limits of such
territory, to the confederation. Of the territory south of
the Ohio river, the state of Kentucky was formed out of that
part of Virginia west of the Allegheny mountains, w^hile the
balance of this territory, so far south as the Spanish terri-
tory of Florida, was ceded to congress by the respective
states claiming it.
In 1803, the United States purchased from France the
"Louisiana" territory, which was bounded on the east by
the Mississippi river, and on the west by a line which ran,
approximately, along the present eastern boundary of Idaho,
and through the center of what are now Colorado and New
Mexico. This territory extended north to Canada, and
south to the Arkansas river and the present northern bound-
ary of Texas. In 1819, the "Florida" purchase w^as made
from Spain, this including the present Florida and parts of
Mississippi, Alabama, and Georgia. In 1845, Texas, w^hich
had obtained independence from Mexico in 1836, was an-
nexed to the United States. In 1848, as a result of the war
with Mexico, that nation ceded to the United States terri-
tory included, approximately, within the present limits of
(831)
§ 371 REAL PROPERTY. [Ch. 18
California, Nevada, Utah, Arizona, and within parts of Colo-
rado and ISTew Mexico, it extending in effect from the Pacific
ocean to the western limit of the Louisiana purchase; and
subsequently, in 1853, a comparatively small portion of ter-
ritory, adjoining the present Mexican boundary, was pur-
chased from Mexico, in order to settle a question as to the
limits of the cession of 1848, this being known as the "Gads-
den Purchase." In 1846, by treaty with Great Britain, the
territory comprising that now occupied by Washington, Ore-
gon, and Idaho, which had been in dispute between the two
countries for many years, was ceded by Great Britain, this
country ceding in return all claim to the territory to the
north thereof. In 1867 the present territory of Alaska was
purchased from Russia.
While by far the greater part of the lands of which either
the United States government or individual states have had
the ownership and control has been acquired either from a
foreign state or by cession from the general government to
a state, or vice versa, land may be acquired from individual
owners, by either the United States or an individual state, by
forfeiture, escheat, the exercise of the power of eminent do-
main, or voluntary transfer.
§ 371. Grants by the United States.
The territory ceded to the confederation by individual
states, and that acquired by the present government from
foreign powers, was, for the most part, iree from any claims
of ownership by individuals, and was therefore open to dis-
position by the government in such a way as seemed ex-
pedient. The land thus owned and controlled by the gov-
ernment, known as "public land," has been gradually dis-
posed of to individuals and corporations by various methods,
intended, and usually adapted, to aid in the settlement and
(832)
Ch_ 18] TRANSFERS BY GOVERNMENT. § 371
industrial development of the country. The more important
methods of disposition which have been adopted v^^ill be
briefly described.
Public sales.
In the early period of the land system it was the cnstom
to offer lands, as soon as surveyed, at public sale, in accord-
ance with a proclamation by the president, and at a mini-
mum price.- This system of disposing of public lands gave
room for much abuse and oppression, it often occurring that
the land had been improved by actual settlers, who would
be dispossessed by purchasers at these sales, and it gradu-
ally fell into disuse. It is now to some extent abolished by
statute.^ The amount of land held under title thus acquired
from the government is not large.
Pre-emption.
In consequence of the evils resulting from the system of
public sales, the "pre-emption" system was instituted, by
which one who settled on one hundred and sixty acres of
land, improving it and erecting a dwelling thereon, was en-
titled to purchase the land in preference to any other per-
son. After settling on the land, he was required to file a
statement or "entry" in the land oflSce within a certain time,
declaring his purpose to claim the right of pre-emption, and
also to file proof that he was entitled to the right, and to
pay the sum fixed by law as the purchase price. He then
received a certificate of entry.^ Before making such proof
and payment, the claimant was regarded as having merely
a privilege to purchase the land, of which he might be de-
2 See Rev. St. U. S. §§ 2353, 2357-2360.
•:See 26 U. S. Stat. 1099, §§ 9, 10; 1 Dembitz, Land Titles, p. 620.
note.
4 Rev. St. U. S. §§ 2257-2288.
(833)
Real Prop.— 53.
§ 371 REAL PROPERTY. [Ch. 18
prived by the government by a grant or sale to others.^ And
such privilege or right of pre-emption could not, by the ex-
press provision of the statute, be assig-ned to another person,
though the pre-em23tor could transfer his interest after pay-
ment and issue of the certificate.^ The pre-emption law
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64
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