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Theophilus Parsons.

Laws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics online

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him, and acknowledge it as his free act and deed ; and the person
receiving the acknowledgment then certifies that he has received
this acknowledgment, under the proper date.

In general an acknowledgment may be made before any justice
of the peace, or a commissioner appointed for the State in which
the land to be conveyed is situated, if the deed is executed in
another State, or any consul or consular agent of the United States
if the deed is executed in a foreign country. This acknowledgment
must be made, or the deed cannot be recorded. And the deed is
invalid, as notice, if the acknowledgment is defective, although it is
actually recorded.

Formerly, all the grantors acknowledged the deed ; and this con-
tinues to be usual in most places, and is the safest practice. But,



WHAT IS ESSENTIAL TO SUCH DEEDS. 437

in some places, it is now sufficient in law, if either of the grantors
acknowledge it.

In many States, if a wife, separately or joining with her husband,
conveys away her land, a particular form and mode of acknowledg-
ment is required, in order to ascertain that she does it of her own
free will ; and any such directions or requirements should bo fol-
lowed with great care. The Forms added to this chapter will show
how this is done.

An attorney, A B, who executes a deed for another, C D,
should acknowledge it as " the free act and deed of the said C D,"
and not as his own.

The justice taking the acknowledgment must be careful to state
it in his certificate, exactly as it was made before him.

In some of our States, recent laws have in effect required the
assent of the wife to a transfer of the husband's real estate ; not
merely to convey her dower, but to pass the property to the grantee.
We do not enumerate or specify these States here ; having given pre-
viously an abstract of the law of husband and wife in all the States.

In all our States, we have the excellent system of registering (or
recording, as it is more frequently called) all deeds of land in the
public registers of the county in which the land lies. This was
adopted for the purpose of giving certainty and notoriety to title,
and it works admirably well. The investigation of title is usually
easy to those accustomed to this mode ; and every purchaser of
land should ascertain that the deed will give him good title before
he takes it.

The law generally requires that a deed of lands should be ac-
knowledged and recorded, to have full effect ; but judicial decisions
have everywhere qualified the force of these words, and in some
instances the language of the statutes varies. But the rules of law
in reference to the recording are quite uniform in all the States,
and are as follows.

In the first place, every acknowledged deed is considered as re-
corded as soon as it is in the hands of the recording officer ; and
therefore he generally minutes upon it the day, hour, and v minute
when it was received by him. This may be very important ; for if
A makes his deed and delivers it to B, who presents it for record at



438 DEEDS CONVEYING LAND.

five minutes past noon, and C, a creditor of A, attaches the same
estate at four minutes past noon of the same day, the grantee loses
the land and the creditor gets it ; but the grantee saves it, if he
presents it to the office three minutes and fifty seconds after noon.

In the next place, as the purpose of public registration is general
notoriety, a deed is perfectly good without record against the grant-
or himself and his heirs, because the grantor himself could not but
know of the deed, and, as all title passed out of him by it, his heirs
could take none from him.

And finally, a deed not recorded is just as good as if it had been,
recorded, against any parties, or the heirs of any parties, who took
the land from the grantor by a subsequent deed, even for a full
price, if they had at the time notice or knowledge of the prior and
unrecorded deed. Many wise persons have doubted the expediency
of this last rule, because it tends to raise troublesome questions, and
to make grantees careless about recording their deeds. But the
rule itself is universally and firmly established, and in some statutes
requiring record this exception is expressed.

A deed should be dated ; but, if it have no date, it will take effect
from delivery. Any erasures or alterations should be noticed and
stated above the names of the witnesses, as having been made before
the execution of the instrument. Any material alteration by a
grantee, or by his procurement, makes the deed void in most cases,
so far as he is concerned.

It is usual, and therefore proper, to name executors, administra-
tors, <fcc.,-'as in the forms appended ; but, generally, the rights and
obligations of the deceased fall by law on their legal representatives.



SECTION IL

THE USUAL CLAUSES DT DEEDS.

IT is customary to recite in all deeds the consideration on which
they are made. This is usually the price paid for them. Sometimes
it is this price in part, and other things in part. Sometimes there
is no price paid, the land being either a gift, or conveyed for other



THE USUAL CLAUSES IN DEEDS. 439

considerations. In the great majority of deeds, the language used
is, " in consideration of (so much money) paid me by the said
(grantee), the receipt whereof I acknowledge." Or it is, "in con-
sideration of one dollar paid me, the receipt of which I acknowledge,
and divers other considerations ; " or, " in consideration of one
dollar to me paid, the receipt of which I acknowledge, and of the
love and good-will I bear to the said (grantee)." It is always cus-
tomary, although not necessary, to put in " one dollar," or some
other nominal sum, although no price is paid.

Although the price is inserted, and the receipt thereof be acknowl-
edged, the seller is not bound by his receipt. It is a general rule,
as has been stated, that all written receipts of money are open to
evidence, as written contracts generally are not. Under this rule,
the seller may sue for the whole or any part of the money of -which
he has acknowledged the receipt, if he can prove that the money ho
demands has not been paid to him. He cannot, however, say that
the money has not been paid, and therefore the deed is void, and the
land has not passed to the grantee. For only that part of the deed
which is a receipt is open to denial or evidence.

Of the words of conveyance, which are usually " give, grant, sell,
and convey," it needs only be said, that it is best to use them, because
it is usual, but that other words, or these with some change, would
be sufficient in law.

The description of the land should be minute and accurate, to an
extreme degree. In this country, it is customary and well to refer
to the previous deeds by which the grantor obtained his title. This
is done by describing them by their parties, date, and book and page
of registry. It may be well to remark, that a deed referred to in a
deed becomes, for most purposes in law, a part of the deed referring.

By the law of England and of America, if land is conveyed by
deed to " A B," the grantee takes it for his life only. Nor will he
take it in full property (or, to use the technical law-term, in fee
simple), that is, with full power of disposing of it during his life or
at his death, with a right on the part of his heirs to it if he does not
dispose of it, unless it is given to " A B and his heirs." These last
words, which are commonly called words of inheritance, must
always be added ; for although there are some qualifications to this



440 DEEDS CONVEYING LAND.

rule, which might help those who take such a deed inadvertently,
there are none to which it would be safe to trust.

The deed is terminated by this clause of execution : " In witness '

whereof, I, the said A B, on the day of in the year ,

have hereunto set my hand and seal," or " subscribed (or written)
my name and affixed my seal." And there should be no departure
from this, although an exact adherence to this formula may not be
necessary to the validity of the deed. This clause is often called
the " In Testimonium clause."

If the deed contains nothing but what has now been said, it will
convey the land, or all the right, title, and interest in and to the
land, possessed by the grantor. But it is only what is called a quit-
claim deed. That is, it is not a warranty deed. These phrases, which
are in common use, explain themselves. Originally, a quitclaim
deed was intended, and indeed operated, only where the grantee
already held possession of the land, or some title to it, and the
grantor intended to renounce all his right or title in favor of the
grantee. But it was soon used where a man intended to sell and
convey land, but not to give any warranty. And now, because there
is some question, in some of our States, as to the effect of the words
" give, grant, sell, and convey," although there be no express war-
ranty in the deed, it is best, and it is usual, when only a quitclaim
is intended, without any warranty whatever, to substitute for the
words of conveyance above mentioned the words " grant and quit-
claim," or, more accurately, " release and quitclaim." Then, if the
grantee afterwards loses the land because the grantor had no title
to it, the grantor is nevertheless under no responsibility, provided
the transaction was an honest one on his part.

All purchasers, therefore, desire to have a warranty deed if they
can get one. And a deed becomes a warranty deed, when clauses
like those which follow are inserted just before the clause of
execution :

" And I, the said A B (the grantor), for myself, my heirs, execu-
tors, and administrators, do covenant with the said C D (the grantee),
his heirs and assigns, that I am lawfully seised in fee of the afore-
granted premises ; that they are free from all incumbrances ; that
I have good right to sell and convey the same to the said C D as



THE USUAL CLAUSES IN DEEDS. 441

aforesaid ; and that I will, and my heirs, executors, and adminis-
trators shall, warrant and defend the same to the said C D, his heirs
and assigns forever, against the lawful claims and demands of all
persons."

It will be noticed that this paragraph contains four different agre<3-
ments or warranties, covenants the law calls them. The cases
are multitudinous, and the law excessively nice, as to their exact
meaning and operation. None of this technical learning is it worth
while to spread before the general reader. But the general purpose
and effect of all of them together should be stated. It is, that if
" the said C D," that is, the grantee, or his heirs or assigns, are
turned out of that estate (ousted or evicted, the law says), on the
ground that the grantor had no title, or an incumbered title, and
could not convey any good and clear title, he or they may fall back
on the grantor or his heirs, and demand damages for the loss of the
land.

It is a question how much damage a grantee thus ousted shall re-
cover. In most of our States, it seems to be the money paid for it,
with interest (deducting rents and profits), and the legal costs and
charges (not including counsel fees) for defending against the suit
T/aich has ousted him from the land, and no more. But in other
States, as generally in New England, the party ousted recovers the
actual value of the land, with his improvements, which he loses by
the defect of the grantor's title ; although this may be much more
than he paid for it. It is not, however, settled uniformly what the
measure of damages is.

In forms of deeds there is usually a blank of a few lines left after
the word " incuinbrances ; " and this is intended for the insertion
of any mortgage, or other incumbrance, which may exist; thus,
" excepting a mortgage to, &c., dated, <fec., to secure the sum of,
fcc." Or, " excepting a right in the owners of the adjoining land
to have and maintain a drain running, &c."

Sometimes quitclaim deeds are made with this warranty : " And
I will, and my heirs, &c., shall, warrant and defend, &c., to the said
C D. <fec., against all claims and demands of myself, or of any persons
deriving title by or through me." Such a warranty will hold the
grantor and his heirs liable for any incumbrance made or suffered
by him, but not for any other.



442 DEEDS CONVEYING LAND.

As the usual covenants of a warranty deed are made with the
grantee, " his heirs and assigns," if such grantee conveys the land
only by grant and quitclaim, without warranty, his grantee takes the
benefit of all the previous warranties to which this last grantor was
entitled. Thus, A sells with warranty to B ; B quitclaims to C ;
C is ousted by D, who proves that he has a better title than A.
C cannot sue B because he got no warranty from B ; but he can sue
A on A's warranty to B, which was transferred to C.

Sometimes estates are conveyed on condition ; but this is a very
catching thing, and nobody should ever take such a deed if he can
help it. It is hardly safe to have the word condition in any deed
but a mortgage. The reason is, that if an estate is conveyed on
condition, and the condition is broken, the estate is lost. Thus if
land is sold on a certain street witli this clause : " And the land
aforesaid is sold on condition that neither the grantee, nor any one
deriving title from or through him, shall build within ten feet of
the street." If any owner build six inches over the line, by mis-
take, or extend his building by an addition of a foot or so in any
part, the whole land, house and all, might be lost and forfeited to
the grantor. And the grantor can always secure the proper effect
of such a condition by a clause like this : " Provided, however, au ^
it is agreed, that if the said C D, &c., shall build, &c., the said
A B, or his heirs or assigns, may enter upon the land hereby con-
veyed, and abate and remove any and all buildings or parts of
buildings, which stand nearer said street than the limit of ton feet
aforesaid ; " or some similar clause, as might be framed to suit
the case. This would be just as good for the grantor and a great
deal safer for the grantee.

By a rule of law which originated in this country, and is now uni-
versal here, if a married woman holds lands, the husband and the
wife, joining in one deed, may convey them. In some of our States
such a deed is regulated by statutes, which of course are to be
followed. And in many of them the wife now has peculiar powers
by statute, as stated in Chapter V. on Married Women. It may be
necessary that she should renounce or release certain rights, as of
homestead, &c., under these statutes, if it is intended that the
grantee should take a clear title ; and in such case proper words



THE USUAL CLAUSES IN DEEDS. 443

should be inserted. This is now the custom, for example, in
Massachusetts. She should always release her right of dower, un-
less it is intended that she should preserve it. In some States her
signing the deed with her husband does not release any thing, even
if it could be proved that such was her intention, unless the deed
contain words expressing her intention to release or convey such or
such a right or interest. In most printed forms there is a blank
left to be filled up for this purpose. As this differs in different
States I shall refer to it again.

It may be well to remark that bargains are often made for the
purchase and sale of real property. If the contract be oral only, it
h?5 no force in any court. If it be in writing, either party may, in
a court of law, recover damages from the other if he refuses to per-
form his contract. Or, in a court of equity, he may compel the other
to execute his contract. Not, however, if there was fraud in the
contract, or oppression, or gross misrepresentation, or intentional
and important concealment. But a mere inadequacy of price all
things being honest will not prevent a court of equity from en-
forcing such an agreement.

Deeds conveying land are of vast variety. They not only differ
that they may suit the particular purposes of the parties and the
terms of their bargain, but those used in each section of the coun-
try differ somewhat in form from those used in another; and
different conveyancers in the same State prefer one form to another.
But these differences are generally, if not always, differences only
of form, and are seldom essential to the meaning and effect of the
deeds. I give here forms of all the kinds most in use ; and in such
variety, and so selected and prepared, that it is believed that any
person in any part of this country will be able to find a form, which,
either as it stands, or with such alterations as can be readily seen to
be required by the use he would make of it, will be safe, and suffi-
cient for his purpose.

As acknowledgments differ much in form, enough of them are
given to show the kinds that are used. The fuller and more particu-
lar are the safer, although the shorter and more general might be
sufficient.

In New England, a deed of land is usually what is called in law

30



444 DEEDS CONVEYING LAND.

a Deed Poll ; by which is meant a deed of one party, and/rom him
to another. In the other States generally, a deed of lands is more
commonly in the form of an Indenture, which, as has been said
before, is an instrument "between two or more parties. The difference
between them will be seen in the forms given. The first one is a
Deed Poll. But most of them are Indentures, as they are most
frequently used ; although a Deed Poll that was satisfactory in other
respects would generally suffice tp give good title to land any
where.

A form of a Deed Poll may be converted into an Indenture by
changing the beginning of it in the manner shown in the forms,
and, whenever the word " grantor " comes, changing that into " the
party of the first part." And a deed by Indenture is made a Deed
Poll by changes of an opposite kind. How to make these changes
will be seen by comparing the deeds of the two kinds as herein
given.

Another difference between the Deeds Poll in common use in the
New-England States, and the deeds by Indenture in use elsewhere,
must be noticed.

If the grantor by a Deed Poll has a wife, and it is intended that
she shall relinquish her dower, she is not mentioned as grantor, but
in the " In Testimonium," so called, which is that part of the deed
which begins with " In witness (or in testimony) whereof," her
name is mentioned, and it must be distinctly said that she signs the
deed in token of her relinquishment or release of dower. This is
shown in Form 106. But where deeds by Indenture are used, there
she is joined with her husband, and named as grantor; he and she
being " parties of the first part." It is, however, not necessary that
any thing should be said in the deed about her release of dower, or
homestead ; but she signs and seals the deed, and, in the acknowl-
edgment, express mention is made of her release of dower and
homestead, and also that she was separately examined. Some of
the forms are drawn in this way. Other forms are written as if the
grantor was unmarried, or as if his wife, if he had one, did not
intend to give up her dower. But all these forms can be readily
altered, and made to resemble either of the forms accordingly as
there is or is not a wife, or as, if there be a wife, it is intended that



FORMS OF DEEDS. 445

she should join in the conveyance and relinquish her dower, or
that the husband should convey subject to the wife's dower. If this
last be the intention, it is not necessary to say so, as the more fact
that she is not a party to the deed preserves for her her right of
dower.

(106.)
A Deed Poll of Warranty, in Common Use in New England.

Know all Men by these Presents, That I, (the grantor) of (resi-
dence, town or city, county and state), (occupation), in consideration of (the
amount paid) to me paid by (here name the grantee or purchaser, giving in
like manner his residence and occupation), the receipt whereof is hereby acknowl-
edged, do hereby give, grant, bargain, sell, and convey unto the said (name
the grantee, and then describe the premises granted, minutely and accurately) :

To Have and to Hold the above-granted premises, to the said (name

the grantee), his (or hers or their) heirs and assigns, to his (or hers or tJieir) use and
behoof forever. And I, the said (name of the grantor), for (myself) and (my)

heirs, executors, and administrators, do covenant with the said (name of the grantee)
and with his heirs and assigns, that I am lawfully seised in fee simple of the afore-
granted premises ; that they are free from all incumbrances (if there be any incum-
brances, as a mortgage or lien, or right of way, or drain, or air, or light, say except-
ing, and then describe the incumbrance), that I have good right to sell and convey
the same to the said (name of the grantee), and his (or her) heirs and assigns for-
ever as aforesaid ; and that I will, and my heirs, executors, and administrators shall,
warrant and defend the same to the said (name of (he grantee), and his heirs and
assigns forever, against the lawful claims and demands of all persons.

In Witness Whereof, I, the said (name of the grantor), and (name of his
wife) , wife of said grantor, in token of her release of all right and title of or to dower
in the granted premises, have hereunto set our hands and seals this
day of in the year of our Lord eighteen hundred and

(Seals.)

Signed, Sealed and Delivered in Presence of

In those States in which a homestead law exists, the signature of
the wife, with a clause like that above, would not release the home-
stead. To effect this the following clause should be inserted before
the words, " In token of : "

" In token of her release to the said (name of the grantee), of ail her right,

interest, and estate to or in the premises herein conveyed, under the hwnestead
laws of this State ; and also," &c.



446 DEEDS CONVEYING LAND.

Some conveyancers think this hardly sufficient, and prefer the
following method, which would undoubtedly be effectual in every
one of these States. Insert before the paragraph beginning " In
witness whereof," this paragraph :

" And I, (name of the wife) wife of the said (the name of the grantor),

in consideration of one dollar to me paid by the said (the name of the grantee).

the receipt whereof is acknowledged, do hereby release and assign to the said
(the name of the grantee}, and his heirs and assigns, all my right, interest, claim, and
estate in or to the premises within granted, under the homestead laws of this State,
or any other statutory provisions thereof."

It is to be remembered that, whether the deed be a warranty deed
like that above given, or a release or quitclaim, or a mortgage deed,
it is equally necessary and proper that the wife should release her
homestead right and her dower, unless it is intended that she should
retain them.

Below the deed comes the acknowledgment.

Commonwealth (or State) of (County) 83. (Town, Month, and Date.)

Then personally appeared the above-named and acknowledged the

above instrument to be free act and deed ; before me,

Justice of Hie Peace.

(1O7.

Deed of Gift by Indenture, tvithout any Warranty whatever.

This Indenture, Made the day of in the

year one thousand eight hundred and between (name,

residence, and occupation of the grantor) of the first part, and (name, resi-

dence, and occupation of the grantee) of the' second part, witnesseth, that the said
(the grantor) as well for and in consideration of the love and affection which he
has and bears towards the said (the grantee') as for the sum of one dollar,

lawful money of the United States, to him in hand paid by the said party of the
second part, at or before the ensealing and delivery of these presents, the receipt
whereof is hereby acknowledged, has given, granted, aliened, enfeoffed, released,
conveyed and confirmed, and by these presents does give, grant, alien, enfeoff,
release, convey and confirm, unto the said party of the second and his heirs and
assigns forever, all (here describe carefully the land or premises granted, by metes and
bounds, and dimensions, contents or quantity, or boundary marks or monuments, ami
refer by volume and page to the deed of the land to the grantor, under which he holds ii)

Together with all and singular the tenements, hereditaments and appurte-
nances thereunto belonging or in any wise appertaining, and the reversion and



FOKMS OF DEEDS. 447

reversions, remainder and remainders, rents, issues and profits thereof.' And also,



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 44 of 70)