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 ■ 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 ■ 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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