KfP Cornell University Library KFP 112.R65 Real estate and conveyancing in Pennsylv 3 1924 024 706 081 0}nrn?U ICam ^rt|ool Htbrarg Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024706081 V REAL ESTATE AND ^CONVEYANCING IN PENNSYLVANIA With Forms, and Decisions to Date BY LOUIS W. RpBEY Of the Philadelphia Bar. Instructor in Real Estate, Law and Conveyancing at Temple University V^ Philadelphia GEORGE T. BISEL CO. Law Booksellers, Publishers and Importers 1922 ± Copyright, 1922, BY George T. Bisel Company PREFACE The writer has been lecturing for a number of years in the School of Commerce of Temple University on the sub- ject of this volume. A large part of the present work is an elaboration of a book of outlines worked out for the stu- dents of that course. The law and practice of conveyancing and real estate law in Pennsylvania have been very well organized and expressed by previous writers in the field, from Mitchell through Fallon to Ladner. Our indebtedness to them must be clearly apparent in the following pages, but we take pleasure in expressly acknowledging it here. Particular acknowledgment should be given to the last named. At the request of the publisher, Ladner on Conveyancing in Penn- sylvania has been used as a basis for the general arrange- ment of this volume. Free use has been made of Ladner's forms but the substantive part of his work has been almost entirely re-written, more than six hundred additional cases have been cited, and changes in the law during the past ten years noted. Six entirely new chapters have been added to the arrangement of the subject as made by Ladner, in- cluding Landlord and Tenant, Building and Loan Associ- ations, Dedication, Eminent Domain and Title by Matter of Kecord. The first eighteen chapters of the book are devoted to a presentation of the law of real estate and conveyancing, interspersed with practical suggestions to persons inter- ested in these subjects as a business. The last four chap- ters deal with certain practical aspects of several kinds of activities centering around real estate, and include such subjects as Real Estate Agency or Brokerage, Building and Loan Associations, Searches, Abstracts of Title, Title In- surance and Settlements. In the Appendix eighty-nine forms have been collected, which, as the author hopes, will be found to cover all the usual transactions in the transfer of real estate. The author gratefully acknowledges the assistance in putting together the following pages of his partner, Ben- iv Preface. jamin B. Hoar, Esq., of the Philadelphia Bar, and of Martin Feldman, Esq., of the same Bar. Mr. Guilliaem A. Wells has been especially helpful in his practical sugges- tions and criticism of the forms. More than ordinary thanks should be expressed to Vincent D. Nicholson, Esq., of the Philadelphia Bar, and head of the Department of Eeal Estate and Conveyancing at Drexel Institute Evening School, for his thorough and efficient work in looking after the multitudinous details that arose as the book made its way through the press, and also for the part he has played in helping with the substantive part of the work. The author would not feel easy if in this connection he did not acknowledge the assistance that he has received from his students at Temple University, and to thank them for the patient and constructive class discussion that laid the foundations for the following pages. Temple University, Louis W. Kobey. September 15, 1922. TABLE OF CONTENTS CHAPTER I. SCOPE OF CONVEYANCING. Section Page 1. Definition 1 2. Conveyancing as a Science 1 3. Estates ^ 4. Title 2 5. Transference of Title 2 6. Allied Subjects 2 CHAPTER II. ESTATES IN REAL PROPERTY. 7. Kinds of Property 3 8. Change of Ownership 3 9. Kinds of Estates 4 10. Estates of Freehold ■ 5 11. Estates Less than Freehold 6 12. Estates upon Condition 6 13. Reversions and Remainders 7 14. Joint Estates 8 15. Estate in Coparcenary 8 16. Joint Tenancy 9 1 7. Tenancy in Common 10 18. Estate by Entireties 10 19. Tenancy in Partnership 14 CHAPTER III. TITLE. 20. Title— What It Is 15 21. Naked Possession 15 22. Perfect or Good Title 15 23. Marketable Title ; Cloud Upon Title 16 24. Equitable Title 17 25. How Title May Be Acquired 21 26. What Law Governs Title to Real Estate 21 CHAPTER IV. CAPACITY TO TAKE, HOLD AND CONVEY. 27. Introduction 23 28. Who May Take, Hold and Convey. Individuals ; In General . . 23 29. Aliens 24 30. Persons of Unsound Mind 24 vi Conveyancing in Pennsylvania. Section Page 3 1. Habitual Drunkards 25 32. Weakness of Mind and Senility 26 33. Minors 26 34. Persons under Duress 27 35. Married Woman 27 36. Feme Sole Traders 29 37. Fiduciaries 30 38. The Commonwealth or the State 32 39. Corporations 33 40. Foreign Corporations 35 41. Unincorporated Societies and Churches 36 42. Partners 38 CHAPTER V. AGREEMENTS OP SALE. 43. In General 41 44. Must be in Writing. Statute of Frauds 42 45. What the Writing Must Contain. Form 43 46. Meaning of the Various Parts : The Introduction 44 47. Description 44 48. Terms and Conditions 45 49. Fire Insurance Policies 46 50. Incumbrance Clause 47 51. Fixture Clause 48 52. Possession Clause 48 53. Apportionment of Taxes, Etc 48 54. Kind of Title Agreed Upon 49 55. Execution of Agreement of Sale; Signature by Agent 50 56. Acknowledgment of Agreement of Sale : Recording 50 57. Assignment of an Agreement of Sale 51 58. Legal Effect of Agreement of Sale 52 59. Rights and Remedies upon Breach 54 60. Where Agreement Is Written. Default by Seller 54 61. Where Agreement Is Written. Default by Buyer 56 62. Where the Agreement is Oral 58 63. Circumstances under Which Oral Contracts will be Enforced . . 58 64. Husband or Wife Not Signing 60 65. Analysis of Rights and Remedies upon Breach 61 66. Extinction of Agreement 63 67. Suggestions in Drawing Agreements of Sale 63 CHAPTER VI. DEEDS. 68. History of Conveyancing 68 69. What is a Deed ; Seal 70 70. Kinds of Deeds. Deed Poll. Indenture 71 71. Requisites of a Deed 72 Table op Contents. vii Section Page 72. Component Parts of a Deed 72 73. Meaning of Parts. Date 74 74. Names of Parties 74 75. Consideration 75 76. Granting Clause 76 77. Description 77 78. The Eecital 78 79. IncumbTauce Clause. "Under and Subject" 78 80. Appurtenance Clause. End of Premises , 79 81. Habendum Clause 81 82. Covenants 82 83. Conclusion of Deed 85 84. Short Form of Deed Under Act of April 1, 1909 86 85. Execution of Deeds : Reading 87 86. Signing 87 87. Sealing 88 88. Attestation 89 89. DeUvery of Deed 89 90. Delivery in Escrow 91 91. Alteration or Destruction of Deeds 92 92. Acknowledgment 92 93. Separate Acknowledgments of Married Women Not Necessary in Pennsylvania 93 94. What a Valid Certificate of Acknowledgment Must Contain ... 94 95. By Whom Acknowledgment May Be Taken 95 96. Notary Public, How to Become One 96 97. Probate of Deeds Where Grantor is Dead or Unable to Appear 98 98. Estoppel by Deed 98 CHAPTER VII. MORTGAGES. 99. Definition of Mortgage, Bond and Warrant 101 100. History and Development of Mortgages 102 101. Origin of Equity of Redemption of a Mortgage 103 102. A Mortgage is a Collateral or Secondary Obligation 104 103. Nature of a Mortgage in Pennsylvania 105 104. Rights and Status of the Mortgagor 106 105. Rights and Status of the Mortgagee 107 106. Porm of a Mortgage. General Requirements 108 107. Formal Parts of a Mortgage 108 108. Bond and Warrant of Attorney 110 109. Certificate of Residence of Mortgagees Ill 110. What May Be Mortgaged. In General 112 111. Leasehold Mortgages 112 112. After Acquired Property 113 113. Fixtures 114 114. Parties to a Mortgage. In General 114 viii Conveyancing in Pennsylvania. Section Page 115. Married Women 115 116. Minors 116 117. Other Persons Under Disability 116 118. Fiduciaries 117 119. Corporations 117 120. Corporation Mortgage to Secure Bond Issue 118 121. Kinds of Mortgages. Purchase Money Mortgage 119 122. Advance Money Mortgage 120 123. Absolute Deed and Separate Defeasance 122 124. Vendor 's Lien 122 125. Equitable Mortgages 123 126. First Mortgages 123 127. Second Mortgages. Second Mortgage Clause 123 128. Building and Loan Association Mortgage 125 129. Assignment of Mortgages. Methods and Form of Assignment 125 130. Assignment of Fractional Portions 126 131. Rights of Assignee Against Assignor 126 132. Eights of Assignee Against Mortgagor 127 133. Declaration of No Set Off 128 134. Eights of Second Assignee Against Mortgagor 129 135. Eights of Assignee Against Other Persons 130 136. Eecording the Assignment 130 137. Sale of Property Subject to a Mortgage. In General 131 138. Eights of Mortgagee Against the Mortgagor (Vendor) after Sale of the Property 131 139. Avoiding Personal Liability of Mortgagor by Use of Straw Man 132 140. Rights of Mortgagee Against Purchaser 133 141. Eights of Vendor (Mortgagor) Against Purchaser 133 142. Sale of Mortgaged Property in Parts 135 143. Eecording of Mortgages 135 144. Discharge of a Mortgage by Payment 136 145. Eights of a Third Party Who Pays the Mortgage Debt 137 146. Satisfaction of Mortgages 138 147. Satisfaction by Order of Court 139 148. Eelease of a Mortgage 140 149. Discharge by Merger 142 150. Discharge by Judicial Sale 142 151. Eemedies of Mortgagee Upon Default by Mortgagor 143 152. Foreclosure by writ of Scire Facias 143 CHAPTEE VIII. GEOUND EENTS. 153. Definition and History 145 154. Form and Analysis of Ground Rents 147 155. Parties to a Ground Rent 149 156. Nature of a Ground Eent 149 157. Irredeemable Ground Eents 150 Table op Contents. ix Section Page 158. Redeemable Ground Eents 151 159. Apportionment of Ground Rents 152 160. Personal Liability of Subsequent Grantees 152 161. Lien of Ground Eents and Arrearages of Rent 154 162. Discharge of Ground Rents by Extinguishment 154 163. Discharge by Merger 155 164. Discharge by Order of Court after Lapse of Twenty-one Years 155 165. Discharge by Judicial Sale 156 166. When and How Rent Must be Paid 157 167. Collection of Rent by Distress 157 168. Remedy by Reentry 157 169. Remedy by Action of Ejectment 158 170. Remedy by Action of Assumpsit 158 171. Mortgages and Ground Rents Compared 159 CHAPTER IX. RECORDING OF DEEDS AND OTHER INSTRUMENTS RELATING TO REAL ESTATE. 172. History of Recording 161 173. Object and Purpose of Recording 162 174. Title Under Unrecorded Deeds 163 175. Persons Protected by Recording Acts 164 176. When Recording is not Notice 164 177. Effect of Record as Notice 165 178. Actual Notice Equivalent to Recording 165 179. Time Within Which Deeds Must be Recorded. Outside Phila- delphia 167 180. Time for Recording. In Philadelphia 168 181. Matters Affecting Title That Cannot Be Ascertained from the Record 169 182. Method of Recording 171 183. Defective Recording and Indexing. Result Thereof 172 184. Recording of Mortgages : In General 173 185. Unrecorded Mortgage Void as Against Subsequent Judgments 174 186. Purchase Money Mortgages 175 187. Recording Assignments and Entering Satisfaction of Mort- gages 176 188. Recording Agreements of Sale 176 189. What Other Instruments May Be Recorded 176 CHAPTER X. TITLE BY MATTER OF RECORD. COURT AND JUDICIAL SALES. 190. Definition and Scope 180 191. Decree of Court in Suit Affecting Title. Ejectment 181 192. Suit to Quiet Title. Rule to Bring Ejectment 183 193. Suit for Specific Performance 184 X Conveyancing in Pennsylvania. Section Page 194. Partition and Allotment 184 195. Judgment Liens 186 196. Mechanics ' Liens 188 197. Lien of Decedent 's Debts 189 198. Sheriff's Sales 190 199. Orphan's Court Sales. In General 193 200. Sales and Mortgages for Payment of Decedent 's Debts 194 201. Sales by Fiduciaries Under Orphan's Court Decree 195 202. Sales by Fiduciaries. Under Common Pleas Court Decree . . . 197 203. Sales Under the Price Act 199 204. Sales for Taxes and Assessments 202 205. Discharge of Liens by Judicial Sale 206 CHAPTEE XI. TITLE ACQUIRED BY ADVEESE POSSESSION. 206. Definition and Origin 211 207. Efeeet of the Statute of Limitations 212 208. Possession Must Be Actual 213 209. Constructive Possession under Color of Title 214 210. Possession Must be Continuous 215 211. Tacking Interests 215 212. Possession Must be Visible 216 213. Possession must be Hostile 216 214. Possession Adverse to the Public Interest 217 215. Persons Under a Disability 218 216. How Title by Adverse Possession Can Be Averted 219 217. Nature of Title Acquired 220 218. Easements by Prescription 220 CHAPTEE XII. EMINENT DOMAIN. 219. Definition and Scope 223 220. Who May Exercise the Power 224 221. What Property May Be Taken 225 222. What Estate is Acquired 225 223. Compensation for Taking. In General 225 224. Persons Entitled to Compensation 226 225. Measure of Damages. (1) Where Entire Tract Is Taken 226 226. Measure of Damages. (2) Where Part of a Tract Is Taken . . 227 227. Measure of Damages. (3) Where No Part Taken but Adjacent Property Injured 228 228. Compensation for Opening Streets 229 229. Damages for Change of Street Grade 231 230. Public Service Companies in City Streets 231 231. Public Service Companies in Eural Highways 233 232. Eemedies of Owner of the Laud 233 Table op Contents. xi CHAPTER XIII. DEDICATION. Section Page 233. Definition 235 234. Express Dedication by Deed 235 235. Implied Dedication. Intent of Owner Governs 236 236. Where Intent to Dedicate is Presumed 236 236. (A) Where no Intent to Dedicate is Presumed 237 237. Acceptance by the Public is Necessary 237 238. Acceptance Must Be Within Twenty-one Years 238 239. Effect of Dedication 239 240. Dedication Should Be Distinguished From Easement by Pre- scription 240 CHAPTER XIV. TITLE BY DESCENT. 241. History and Definition 241 242. What Law Governs 242 243. Intestate Act of 1917 242 244. Text of the Act of 1917 243 245. How to Ascertain Heirs 249 246. Synopsis of Intestate Act 251 247. Who May Inherit. Certain Special Rules 254 248. Dower 256 249. When Dower Interest Vests 257 250. How Dower May Be Barred 258 251. Remedies to Enforce Dower 260 252. Curtesy 260 253. How Curtesy May Be Barred 261 254. Provisions of the Intestate Act Specially Relating to Real Estate 261 255. Advancements 262 256. Presumed Decedents 262 257. Widow 's and Children 's Exemption 263 258. Inheritance Taxes 263 259. Administration of Decedent 's Estates 264 260. Recital in Deed of Person Who Acquired Title by Descent .... 265 CHAPTER XV. WILLS. 261. Definition of Wills and of Terms Thereo* 266 262. Origin and History of Wills 268 263. Pennsylvania Wills Act of 1917 268 264. What Law Governs Disposition by Will 269 265. Who May Make a Will. Capacity 269 266. Form of Will 270 267. Execution of a Will 272 xii Conveyancing in Pennsylvania, Section Page 268. Codicil of Will. Form and Effect Thereof 273 269. When Subscribing Witnesses are Necessary. Charitable Gifts 274 270. Appointment of Testamentary Guardians 275 271. What Property Passes By Will 276 272. Lapsed Devises 277 273. Who are Meant by the Term ' ' Children " 277 274. Who is Meant by the Term ' ' Wife " 278 275. Legacies as a Charge Upon Beal Estate 279 276. Devisee Takes Subject to Existing Mortgage 280 277. Revocation of Wills. Express Eevocation 281 278. Eevocation by Circumstances or Implied Revocation 282 279. Right of Surviving Spouse to Take Against the Will 284 280. Probate of Wills 286 281. Powers of Executors Over Real Estate 287 282. Recital in a Devisee 's Deed 288 CHAPTER XVI. ESCHEAT AND FORFEITURE. 283. Definition of Escheat 289 284. Escheat of Lands Held by Aliens 289 285. Escheat of Land Held by Charities 290 286. Escheat of Land Held by Trustees or Other Fiduciaries 290 287. Escheat of Land held by Corporations 290 288. Escheat Not Complete until Commonwealth Begins Proceedings 291 289. Grantees Before Escheat Gain Good Title 291 290. Proceedings to Escheat 292 CHAPTER XVII. BOUNDARIES AND MISCELLANEOUS MATTERS RELATING TO TITLE AND THE TRANSFER THEREOF. 291. Title to Land Under Navigable Waters 293 292. Title to Land Under Non-navigable Waters 295 293. Title to Islands 295 294. Title by Accretion 296 295. Boundaries. In General 297 296. Inconsistent Descriptions 298 297. Conveyance of Land Bounded by a Street 299 298. Conveyance of Land Bounded by Streams and Lakes 300 299. Party Walls 300 300. Compensation for Use of Party Wall by Subsequent Builder . . 302 301. Fences 304 CHAPTER XVIII. LANDLORD AND TENANT. 302. Leases. Definition and Origin 307 303. Kinds of Tenancy 309 Table of Contents. xiii Section Page 304. Tenancy for Years 309 305. Tenancy from Year to Y'"ear, or from Month to Month 309 306. Tenancy at Will 310 307. Tenancy at Sufferance 311 308. Nature of a Leasehold Interest 312 309. Form of Lease 313 310. Eecordiug of Leases 314 311. Implied Leases 314 312. Covenants in a Lease 316 813. Eights and Eemedies of Tenant. Implied Covenant for Quiet Enjoyment 316 314. Rights of Tenant Upon Eviction or Trespass. What Constitutes an Eviction 317 315. Use of Premises 319 316. Condition of Premises. Eepairs 320 317. Express Covenant to Eepair 321 318. Destruction of Buildings 323 319. Rent 324 320. Rights and Remedies of Landlord. Assumpsit for Rent 326 321. Rights and Remedies of Landlord. Distress. In General 326 322. When the Right of Distress Exists 327 323. What Goods May be Distrained 328 324. Procedure in Distress 328 325. Tenant 's Right of Exemption 330 326. Eights of Tenant in Case of Illegal Distress 331 327. Landlord's Preferred Claim Over Other Creditors 331 328. Transfer of Landlord 's Interest 332 329. Transfer of Tenant 's Interest 333 330. Sub-Leases 335 331. Termination of the Relation. In General 335 332. Forfeiture 336 333. Judicial Sale of Leased Premises 337 334. Surrender 338 335. Notice to Quit 340 336. Tenant Holding Over After Term 341 337. Landlord 's Remedies to Regain Possession 344 338. Fixtures 346 339. Way -going Crop 349 340. Tenant Estopped to Deny Landlord 's Title 350 341. Suggestions in Drawing Leases: For Protection of Landlord 350 342. Suggestions in Drawing Leases : For Protection of Tenant . . . 352 343. Long Term Leases 353 CHAPTER XIX. REAL ESTATE AGENTS AND BROKERS. 344. Modern Real Estate Business. Who is a Broker 357 345. Real Estate Broker Must Be Licensed 358 xiv Conveyancing in Pennsylvania. Section Page 346. Effect of Not Obtaining a License 359 347. When a Broker is Entitled to Commisaion 360 348. Relation of Broker to Client Regarded in Law as a Confidential One 363 349. Agent Cannot Represent Both Buyer and Seller Except Under Certain Circumstances 364 350. Principal's Duty to Reimburse Agent for Losses Suffered in Course of Agency 365 351. Authority of Real Estate Agent to Act 366 352. Right of Principal to Cancel Agency 367 353. When a Broker is Personally Liable 368 CHAPTER XX. BUILDING AND LOAN ASSOCIATIONS. 354. History and Purpose 370 355. Capital Stock 372 356. Certificates 373 357. Maturity 374 358. Contingent Fund 374 359. Fines 375 360. Forfeitures 376 361. Withdrawals 376 362. Appropriations 377 363. Application for Loan 377 364. Building and Loan Association Mortgages 379 365. Split Mortgage 380 366. Premiums 381 367. Building and Loan Association Administration 383 CHAPTER XXI. SEARCHES. 368. Searches. In General 386 369. How Records are Indexed 387 370. Kinds of Searches 388 371. Conveyance Searches 389 372. Registry Bureau 390 373. Incumbrance Search. Mortgages 390 374. Incumbrance Search. Judgments 391 375. Where to Search for Judgment Liens 392 376. Appellate Court Judgments 393 377. Common Pleas Court Judgments 393 378. Criminal Court Judgments 394 379. United States Court Judgments 394 380. Lien of Decedent 's Debts 395 381. Mechanics ' Liens, Taxes and Municipal Claims 395 382. Locality Indexes 397 Table op Contents. xv Section Page 383. Assignment of Mortgage Searches 397 384. Examination of Property 398 385. Synopsis of How to Search 398 386. Brief or Abstract of Title. Form 400 CHAPTEE XXII. SETTLEMENTS. TITLE INSURANCE COMPANIES. 387. Title Insurance Companies 416 388. Application for Title Insurance 417 389. Settlement Certificate 419 390. Approval of Form of Instruments 423 391. Payment of Title Charges and Conveyancing Expenses 423 392. Settlements (Conveyance) 425 393. Mortgage Settlement 431 394. Assignment of Title Insurance Policies 433 395. Suggestions in Making Settlements 434 FOEMS See Page 437 et seq. for Table of Contents. CHAPTER I. Scope of Convbyancing. Section Page 1. Definition 1 2. Conveyancing as a Science 1 3. Estates 2 Section Page 4. Title 2 5. Transference of Title 2 6. Allied Subjects 2 1. DEFINITION. Conveyancing is the science of transferring title to any estate in real property. Analyzing this definition divides it into at least the fol- lowing four elements : (1) Conveyancing as a science, (2) Estates in real property, (3) Title, and (4) Transference of title. 2. CONVEYANCING AS A SCIENCE. Commenting on the first element, we must say that, too often, conveyancing is looked upon as the sort of thing that anybody who can operate a typewriter is capable of doing, whether he has had any previous training or not. This idea is encouraged by our modern methods of doing business, which put such undue emphasis on the attainment of the desired result, forgetting in a large measure the manner of reaching it. Conveyancing, on the contrary, lays all of its stress on the method of the transfer, placing its greatest premium on accuracy and exactness. A science is a form of organized knowledge and conveyancing essentially should be this. Careless, hit or miss, disconnected information about real estate is no foundation for a science and transfers made with that kind of mental equipment are usually worthless except as laying the groundwork for a future law-suit. It shall be the pur- pose in what follows to organize the knowledge of the subject. 1 2 Conveyancing in Pennsylvania. 3. ESTATES. The second element wMch we will consider covers estates in real property. This is the subject matter of convey- ancing, and will be considered from the lowest form of estate known as a tenancy at sufferance, to the highest, — namely, that of a fee simple. 4. TITLE. A third element treats of the question of title to this subject matter. There are a number of different kinds of title and each will come in for a complete explanation. 5. TRANSFERENCE OT TITLE. Next comes the matter that is at the very root of the main subject, the transference of the title. How this is done, who has capacity to do it, what instruments must be drawn in order to accomplish it, will each in turn be given the necessary discussion. 6. ALLIED SUBJECTS. Finally there are certain allied subjects without which no work on our subject would be complete. These comprise the rights and duties of real estate brokers, Building and Loan Associations, title searches. Title Insurance Com- panies, and settlements. CHAPTEE II. Estates in Real Peopeety. Section Page 1. Kinds of Property 3 8. Change of Ownership .... 3 9. Kinds of Estates 4 10. Estates of Freehold 5 11. Estates Less than Freehold 6 12. Estates upon Condition. . 6 Section Page 13. Reversions and Remain- ders 7 14. Joint Estates 8 15. Estate in Coparcenary. . . 8 16. Joint Tenancy 9 17. Tenancy in Common.... 10 18. Estate by Entireties 10 19. Tenancy in Partnership. . 14 7. KINDS OF PROPERTY. All property is divided into the two classifications of personal and real. The former is made up of property of a movable character or as Blackstone puts it, "such as may attend the person of the owner and the rights therein." The latter includes all things immovable and certain rights therein. 8. CHANGE OF OWNERSHIP. It can readily be seen that the method of the transfer of ownership applicable in the case of personal property would be different from that used in the case of real prop- erty. Personalty is usually capable of manual delivery. Real estate as defined above, on the other hand, is not. In the early days of the transfer of real property a form, representative of delivery, was gone through with, which was known as "livery of seisin." Even this fiction of de- livery has been discarded in the present day. In view of these conditions, another method had to be devised for the transfer of real estate. This has resulted in the method of transfer by Deed, without any attempted manual delivery, except that of the conveyancing instru- ment itself. 3 4 Conveyancing in Pennsylvania. 9. KINDS OF ESTATES. The ownership of real property may be divided up among a number of people. The quantity and character of each portion is called his estate. Let us suppose a case where O has in himself alone the full and complete ownership of a piece of real property. He marries and thereby W, his wife, obtains an estate in the property known as an estate by dower. He then mortgages to M who in turn becomes the holder of another estate. Next he leases to T and the latter's interest makes him an estate holder. Then O, wishing to give A the in- come of the property, delivers a deed, transferring the property to A for life and on A's death to X, or his heirs. This constitutes A the holder of another estate and X of still another. In this illustrative way we can see that there can be a great number of estates in the same piece of property. Each man's estate is really his quantitative and qualitative in- terest therein. Blackstone (2 Bl. 104-162) analyses these various estates as follows : 1. With respect to Quantity of Interest. A. Estates of Freehold. Fee Simple. Life Estate. I For one's own life. ( For the life of another. Curtesy. Dower. B. Estates Less than Freehold. For years. At will. By sufferance. C. Estates on Condition (including Mortgages). Estates in Eeal Propbett. 5 2. With respect to Time of Enjoyment. A. Estates in possession. B. Estates in reversion. C. Estates in remainder. 3. With respect to Number and Condition of Tenants. A. Severalty — Ownership by one person. B. Ownership by several persons. Joint tenancy. Coparcenary. Tenancy in common. Blackstone deals with several other kinds of estates, such as Estates Tail, Copyhold Estates, etc., which are now obsolete and which we need not consider. 10. ESTATES OF FREEHOLD. The term "Freehold" has only an historical significance. It originally referred to the possession of land by a "free- man" as distinguished from the less valuable rights of a "serf" or "villein." A Fee Simple Estate is the largest that a man can have in real property. It is a simple, unconditional and absolute estate (Mitchell on Real Estate and Conveyancing 91). It is commonly called an estate in fee. It is the estate with which we are most familiar. A Life Estate, as the name indicates, is an estate for life. It may be granted to last for the grantee's own life or for the life of another. In any event, to be a life estate, it ceases with the life of the person for the length of whose life it was granted. Estates of Dower and Curtesy at common law were a species of life estates and could be treated as subdivisions thereof. They differed from ordinary life estates, in that they were created by operation of law, and not by any act of the parties. An Estate of Dower at common law was the one-third interest for life which a married woman had in all land owned in fee by the husband at the time of and after his 6 Conveyancing in Pennsylvania. marriage. Should the wife survive her husband she be- came entitled to said one-third of all his real estate for and during the term of her natural life. An Estate by Curtesy at common law was the right which vested in the husband upon marriage to enjoy upon his wife's death for and during the term of his natural life all of the real estate which she owned in fee. At common law an estate by curtesy never vested until the birth of a child, but now it vests upon the marriage even though there be no issue. The law of Pennsylvania has radically changed the estates of dower and curtesy. Under the Intestate Act of 1917 (P. L. 429) these estates are exactly the same in quantity, and each is the share to which either husband or wife is entitled in the estate of the other by the intestate law. This share is an estate in fee and is either an un- divided half or an undivided third, depending upon the existence and number of children. ( See chapter XIV. ) 11. ESTATES LESS THAN FREEHOLD. An Estate for Years is an estate which is let unto another to enjoy for a stipulated time. Whether given for one month or for one year or for two years, it is nevertheless an estate for years provided the period be definite. An Estate at Will is where lands are let by one man to another to hold at the will of the owner, who is known as the lessor. The tenant at will also has the privilege of terminating the tenancy at any time. An Estate by Sufferance is where one comes into posses- sion of the land by lawful means, but keeps it afterwards without any title at all, — e.g., a tenant in possession after the lease has expired, so long as the owner suffers, or per- mits him to remain. 12. ESTATES UPON CONDITION. These are such as have a qualification annexed to them, by which they may, upon the happening of a particular Estates in Real Property. 7 event be created or enlarged or destroyed (Mitchell: Eeal Estate and Conveyancing, P. 175). The most common form of a conditional estate is that of a mortgage. A mortgage is in the form of a fee simple conveyance with a conditional clause, providing that, if the mortgage debt is truly paid, the estate of the mortgagee shall cease and become void. 13. REVERSIONS AND REMAINDERS. The second chief subdivision of estates according to Blackstone's analysis comprises those with respect to the time of enjoyment. A person who has the immediate right to the possession of property is considered as having an Estate in Possession. This kind of estate cuts across those considered under Blackstone's first subdivision and may be in fee, for life, or for years. It is possible for an owner in fee to give up his right to immediate possession by leasing to a tenant. In this case the tenant has an estate in possession for the length of the term and the owner in fee has an estate in reversion. A reversion is defined as the residue of an estate left in the grantor to commence in possession after the termina- tion of a lesser estate which he has granted. It is also possible for an owner of property, either by will or by deed, to create a present estate in one person and a future estate in another person. Thus, a grant to A for life, and after A's death, to B for life, and after B's death to C in fee, creates three separate estates in the same property. The interests of B and C are called re- mainders. Remainders are divided into two classes — vested and contingent. A vast quantity of learning has been built up concerning these future estates. Without at- tempting a definition that covers all possible cases, it is sufficient for our purpose to state that a vested remainder is usually the kind of future interest which is certain. A contingent remainder is subject to some condition, and is therefore uncertain. In the example given above the re- 8 Conveyancing in Pennsylvania. mainders of B and C are vested, because they are certainly to be enjoyed upon the termination of the prior estate. The fact that B might die before A and thus never enjoy his estate, does not prevent his remainder interest from being vested, since it is certainly to be enjoyed if B outlives A. If, however, the grant were to A for life, remainder to B if she is not married, B's interest is a contingent remainder. Or in a grant to A for life, remainder to A's wife, the re- mainder is contingent if A is unmarried, but vests as soon as he marries. The law favors vested interests and will usually consider a remainder vested when a real doubt arises. The difference is important because a contingent remainder may be cut off and is a less valuable interest. Other future interests, such as executory devises, are outside the scope of this treatise. 14. JOINT ESTATES. By joint estates are meant such as are vested in more than one person at the same time in the same property. Of the three mentioned in Blackstone's analysis. Coparcenary, Joint Tenancy and Tenancy in Common — the first is now obsolete and the second has been greatly modified by statute. In addition, there are two other kinds of joint estates frequently met with in modern conveyancing: the peculiar estate in husband and wife, known as Tenancy by Entireties, and Tenancy in Partnership as provided in the Partnership Act of March 26, 1915, P. L. 18. 15. ESTATE IN COPARCENARY. This is an estate defined by Blackstone (2 Bl. 187) to be one where lands of inheritance descend from an ancestor to two or more persons. This estate is now obsolete in Pennsylvania. If the joint heirs are husband and wife, they take by entireties; in all other cases they take as tenants in common. Estates in Real Property. 9 16. JOINT TENANCY. At common law a joint tenancy in land existed when- ever two or more persons acquired land by one and the same instrument, and there were no express words creating a tenancy in common. In other words there was a strong presumption that a joint tenancy was intended, although this presumption could be overcome by clear language in the instrument indicating a contrary intent. (2 Blackstone 180 and 193. ) Each party to such an estate was considered in law as having vested in him the possession as well a^ the full title and interest to the whole of the property. Thus it followed that if one of two joint tenants died his right survived to the other and did not descend to his heirs. A joint tenancy could be changed into a tenancy in common or the land could be partitioned by the voluntary act of all the parties, but no one tenant could compel a partition. In Pennsylvania the common law presumption in favor of joint tenancy has been abolished by the Act of March 31, 1812, 5 Sm. L. 395. That act took away from joint tenancies the incident of survivorship and provided that, upon the death of a joint tenant, the estates of joint tenants shall "be considered to every intent and purpose in the same manner as if such deceased joint tenants had been tenants in common." It has been held, however, that this act did not prevent the creation of joint tenancies with the incident of sur- vivorship, by clear and appropriate words expressing such an intent. {Arnold v. Jacks' Executors, 24 Pa. 57; Re- demptorist Fathers v. Lawler, 205 Pa. 24.) In the latter case the court said: "It is not forbidden by this Act (Act of 1812) to create by grant or devise an estate with the same attributes of survivorship as joint tenancy at com- mon law. . . . No particular form of words is required further than that they shall be sufficient to clearly express an intent in order to overcome the presumption arising from the statute." (See also McCallums' Estate, 211 Pa. 205.) 10 Conveyancing in Pennsylvania. Thus the Act of 1812 merely changed the rule of pre- sumption. At common law a joint tenancy was presumed in the absence of clear words to the contrary ; at the present time a tenancy in common is presumed in the absence of clear words expressing a contrary intent. Trust estates were expressly excepted from the provi- sions of the Act, and the right of survivorship still exists between two or more trustees. When the last surviving trustee dies the title descends to his heirs, pending the ap- pointment of new trustees. The Act of 1812 does not apply to estates in the joint names of husband and wife, who continue to hold the peculiar estate of Tenancy by Entireties. {Diver v. Diver, 56 Pa. 106. See Sec. 18.) 17. TENANCY IN COMMON. This is the usual form of estate held by two or more persons, and the other kinds of joint estates are exceptions to it, dependent upon peculiar circumstances. Each co- tenant is considered in law as being possessed of the whole of an undivided pfurt. In each of the other joint estates — joint tenancy, by entireties, and in partnership, — each tenant is considered as possessed of an undivided part of the whole. The chief practical distinction is in connection with survivorship. The incident of survivorship exists in all joint estates excepting tenancy in common. When a co- tenant dies, his interest does not go to the other cotenants, but continues as a separate interest and descends to his heirs. Since the Act of 1812, it is presumed that all estates held by two or more persons, excepting estates held by husband and wife and by trustees, are tenancies in com- mon. This presumption can be rebutted by express words creating a joint tenancy or by circumstances showing a partnership. 18. ESTATE BY ENTIRETIES. This is the peculiar estate existing between husband and wife. It resembles joint tenancy in that the survivor Estates in Real Peopeety. 11 takes the whole estate, but it is based, not upon any intent expressed in the instrument, but upon the legal unity of husband and wife. As Blackstone explains : "If an estate in fee be given a man and his wife they are neither prop- erly joint tenants or tenants in common, for husband and wife being considered one person in the law, they cannot take the estate by moieties (halves) but both are seised by the entirety." At common law, husband and wife could not hold title to the same land in any other way, and this doctrine was not changed by the Act of 1812 previously mentioned. Thus, where lands were conveyed to husband and wife as tenants in common and not as joint tenants, the Court held that the clearly expressed intention could not be re- garded, and that the parties had attempted to do some- thing which in law was impossible. {Stuckey v. Keefe, 26 Pa. 397. ) If the grantees are actually husband and wife, the estate is created even though they are not named as such, and even though there is no express mention in the instrument of an estate by entireties. Conversely, thd estate is not created if the grantees are not actually husband and wife even though they are so described. The nature of an estate depends upon circumstances at the time of its creation and no later events can destroy or modify the estate originally created. Thus, where an estate is conveyed to a man and woman who are not mar- ried, but who afterwards intermarry, they continue to holds as tenants in common. {Stuckey v. Keefe, 26 Pa. 397 at 403. ) Conversely, when an estate by entireties has once been created, not even a divorce between the parties can convert it into a tenancy in common. {Alles v. Lyon, 216 Pa. 604. ) Partition of the estate cannot be compelled by either party, but a voluntary partition is valid, and even an oral agreement for partition is binding, at least upon the hus- band if he survives. {Merritt v. Whitlock, 200 Pa. 50.) 12 Conveyancing in Pennsylvania. Where husband and wife take property by inheritance, they hold by entireties. ( Gillan v. Dixon, 65 Pa. 395. ) After passage of the Married Women's Property Acts giving married women full competency to hold real estate, it has often been contended that tenancy by entireties was impliedly abolished by these statutes. The Courts have consistently held, however, that such was not the effect of these acts. {Meyer's Estate, 232 Pa. 89; Blease v. Ander- son, 241 Pa. 198 at 203. ) One case has gone so far as to hold that an express attempt to create a tenancy in com- mon between husband and wife is just as futile now as it was at common law. {Hoover v. Potter,, 42 Pa. Superior Ct. 21.) Such a doctrine, however, has been questioned in several cases and the doctrine of the case of Hoover v. Potter has been overruled. In Stuckey v. Keefe, 26 Pa. 397 at 403, the court recognized the possibility of a husband and wife holding as tenants in common, when the property was conveyed to them before marriage. The court ex- pressly stated that its decision was based on the law prior to the Married Woman's Property Act of 1848, intimating that an express attempt to create a tenancy in common after that act might be valid. In Merritt v. Whitlock, 200 Pa. 50, the Supreme Court said at P. 55 : "It may be considered as still an open question whether they (man and wife) may not now, since the Acts referred to (Mar- ried Women's Property Acts ) take as well as hold in com- mon, if that be the actual intent, notwithstanding the legal presumption to the contrary." This dictum was approved in Alles v. Lyon, 216 Pa. 604. In Rhodes' Estate, 232 Pa. (decided after Hoover v. Potter), we find at p. 493 another similar dictum : "The intention may be made clear in a deed that the grantees, even though husband and wife are to take estates in severalty." In Blease v. Anderson, 241 Pa. 198, it was held that a conveyance of a ten-fifteenths interest to the husband and a two-fifteenths interest in the same land to the wife, did not create an estate by en- Estates in Real Property. 13 tireties. The language of the court is broad enough to declare the possibility of creating a tenancy in common between husband and wife by clear and appropriate lan- guage. In other words, the law now seems to give effect to the intent of the parties as expressed in the instrument. There is a strong presumption that a tenancy by entireties is intended, but this presumption may be overcome by explicit language to the contrary. This estate may exist in personal property as well as in real property. {Klenke's Estate, 210 Pa. 572; Sloans' Estate, 254: Fa.. 34:6.) The property cannot be levied on under a judgment against either husband or wife during their joint lives. Upon the death of either, the survivor takes the whole and his estate dates, not from the time of the death of the other, but from the date of the deed. Therefore, if a judg- ment had been entered against the survivor at any time after the date of the deed to the husband and wife, this judgment ripens into a binding lien at the death of the other. Conversely, the survivor takes the property free and clear of any judgments against the other. {Hetzel v. Lincoln, 216 Pa. 60. ) Both can convey a good, marketable title free and clear of judgments against either. Thus where a judgment was entered against the husband prior to a conveyance by both, and the husband survived the wife, it was held that the judgment did not bind the property. (Beihl v. Martin, 236 Pa. 519.) The court said at P. 528: "The owner of such a lien must hold it subject to its possible extinction in either of two events, the predecease of the husband or the alienation of the estate by the joint act of the parties." A different rule, however, is applied in the case of a mortgage by both after a judgment has been entered against the one who ultimately survives. In such a case it has been held that the judgment binds the property and is a lien prior to the mortgage. (Fleek v. Zillhaver, 117 Pa. 213.) The reason for the distinction is found in the 14 Conveyancing in Pennsylvania. different nature of a mortgage and a deed. The latter completely divests the grantors of all interest in the prop- erty, and when either husband or wife dies there is no estate in the survivor to which a judgment can attach. A mortgage, on the other hand, is a mere lien and an estate remains in the mortgagor which passes to the survivor and to which the judgment can attach. The expectancy of either husband or wife cannot be sold on execution. If the husband conveys the property without the joinder of the wife, and then survives her, title would probably pass to the purchaser under the doctrine of estoppel. ( See Sec. 98. ) It is open to question, however, whether a deed by the wife would similarly pass title by estoppel upon the death of the husband, owing to the policy of the law which makes a married woman's deed wholly void. 19. TENANCY IN PARTNERSHIP. The Partnership Act of March 26, 1915, P. L. 18, Sec. 25 (1), provides that partners shall hold property used in the partnership business as "tenants in partnership." This tenancy has a number of peculiar features. As dis- cussed later (Sec. 42), the interest of a partner, even in firm real estate, is considered as personalty. It is not sub- ject to attachment or execution by the creditors of an in- dividual partner. Neither does a wife of a partner have dower in his interest in the firm real estate. A tenancy in partnership bears more resemblance to a joint tenancy than to a tenancy in common, the Act of 1915 providing that, upon the death of a partner, all of his interest in the partnership property vests in the surviving partners. They are under obligation, of course, to account to the deceased partner's estate for the cash value of his interest. CHAPTEE III. Title. Section Page 20. Title— What It Is 15 21. Naked Possession 15 22. Perfect or Good Title. ... 15 23. Marketable Title, Cloud Upon Title 16 Section Page 24. Equitable Title 17 25. How Title May Be Ac- quired 21 26. What Law Governs Title to Eeal Estate 21 20. TITLE. WHAT IT IS. Title is tile ownership of property. When a man owns a piece of property of any kind, we say he has title to it. It may be an automobile or a right to do a certain thing, or a piece of realty. In any case he is the holder of the title. This title may be good or bad or there may be a third kind of title which is legally perfect, but is unmarketable because of some "cloud upon the title." 21. NAKED POSSESSION. The lowest form of title is that of naked possession with no other right. This, one would say at the first blush, is no title at all. True, in a measure, but possession with no right is something more than no possession with no right ; for as we shall presently see, a continuance of such posses- sion adverse to the owner may ripen into an absolutely good title. Then, again, possession is a good defense against everybody except the holder of a better title than the possessor, and even here the burden is on the latter to make good his title. [Lane v. Reynard, 2 S. & R. 65. ) 22. PERFECT OR GOOD TITLE. Perfect title exists where the person has the clear and undisputed right to hold the property as against all the 15 16 Conveyancing in Pennstlvanu. world. He may hold by his own possession or by the pos- session of a tenant, the latter being called constructive possession. Possession, however, actual or constructive, is necessary or the title is not complete. To give an example : Suppose A has a complete record title, by which is meant that the evidence of his right forms a perfect chain whether by deed or will. Suppose now, X enters possession of the premises during A's absence and refuses to vacate on A's return. A is the record owner and has a complete chain of title. Should he proceed against X, he would prevail. But he must proceed and obtain possession or his title is not complete. X's possession is a cloud upon the title which would render it unmarketable. 23. MARKETABLE TITLE. CLOUD UPON TITLE. This leads us to consider what we term a marketable title, since the expression is a very important one in sales of real estate. This is not to be confounded with a good title. Strange as it may sound, a good legal title may not be marketable. It often happens that a person has more than mere possession, but something less than perfect and complete title. Thus a person may have good title as a matter of law, but may be deprived of the benefits of title by the claim or by the contingent interest of some other person. This claim or contingent interest which might prevent a desired sale is called a "cloud upon title." In addition to the example given in the preceding section, a great many instances of unmarketable titles might be given. For example, A has a perfect title to some land. B enters into an agreement to purchase it. Then he learns that a third person claims an interest in the property under an old will. Let us suppose that the claim is entirely invalid and without any legal right. Legally A's title is good, — per- fect, but from a practical standpoint it is doubtful, and, therefore, unmarketable. No one buys the hazard of a law suit unless at a greatly reduced figure. An unmarketable title has been well defined by the Supreme Court of Penn- Title. IT sylvania as a title which exposes the party holding it to the hazard of litigation. {Reighwrd's Estate, 192 Pa. 108; Christ Church v. Clark, 47 Pa. Superior Ct. 286; Mc- Closkey v. Timmons, 74 Pa. Superior Ct. 19. ) It must, however, be remembered that not all objections render a good title unmarketable, and the question as to what is and is not a marketable title is too large a subject to develop in this book, but in practice the difficulty is avoided by defining in the agreement of sale what the parties mean by a marketable title, and it is usually done by inserting the following clause: "The title to be good and marketable and such as will be insured by any title insurance or trust company." {Srolovitz v. Margulis, 35 Pa. Superior Ct. 252. ) In this way it will be observed that an objection raised by a title company makes the title un- marketable as agreed to between the parties. 24. EQUITABLE TITLE. To properly understand' the difference between a legal title and an equitable title we must understand the mean- ing of the word equity. This is a difficult word to define. Blackstone (Blks. Introduction, Sec. 2, page 61) adopts the definition of Grotius, who says that "equity is the correc- tion of that wherein the law (by reason of its universality) is deficient." But this definition, like all others, requires explanation. Bispham, in his admirable book on Equity Jurisprudence, explains the meaning of equity by setting forth its history rather than by attempting to define it, and we cannot do better than to adopt his method. Historically the fountainhead of English justice was the sovereign, the King. At the time of the Norman Con- quest and immediately thereafter the law was administered by the King and a certain Council which he convened from among the lords of the realm. From this council there developed the courts later known as the Court of King's Bench, the Court of Common Pleas, etc. In all of these courts there was administered justice according to the 18 CONVEYANCINS IN PENNSYLVANIA. rules and precedents of the common law. Under these rules and precedents the party injured was always entitled to a judgment of money damages to compensate him for his injuries. As time passed it became evident that money damages awarded after injury was not always a sufficient compensa- tion for the injury suffered. E.g., suppose a man had a beautiful grove of shade trees and Ms neighbor out of pure wantonness cuts down a shade tree, the next day cuts down another and announces his intention of continuing to do so until all are gone. The injured man can, of course, sue and recover damages. But money damages, while they may punish the wrongdoer, cannot replace the trees. The court of law could not prevent the trespasser from con- tinuing his wanton trespasses. It could only give damages to the grieved party. Again, suppose A agreed to sell a certain valuable painting to B, and later refused to carry out his agreement, B could sue him, but money damages would not give him that certain painting, and if it were the only one of its kind manifestly no amount of damages could redress the injured party. Again, X has a stream of water running through his place which he uses to run his mill. Y, who is up stream, diverts the water, leaving X's mill high and dry. The common law court could give X damages, but his stream was gone forever. Thus, examples could be multiplied where the common law by reason of its inflexibility (universality) afforded no proper relief to the injured party. Now, as the King was the Supreme Judge, or head of Justice, it became natural for the injured subject to whom money damages afforded no relief to petition his sovereign for redress. The King had the power to grant extraordinary relief if the case warranted it. Usually the King would refer the peti- tion to his Chancellor, the official who acted at that time in the capacity of Secretary to the King. These petitions for relief became so frequent that later in the reign of King Edward I, an ordinance (Bispham's Principles of Equity (6th Ed.) 10) was issued for the purpose of re- Title. 19 lieving the King from the business of attending petitions addressed directly to him whereby it was provided that "all petitions touching the seal do come first before the Chan- cellor" ; and further, "if the demands be so great and so much of grace that the Chancellor and those others cannot do without the King, then they shall bring them before the King to know his will." Soon the practice of presenting the petition to the Chancellor in the first instance became firmly established. As applications increased it became necessary for Vice- Chancellors to be provided, and so arose a separate court of justice known as the Court of Chancery or Court of Equity, in which court a suitor who had no adequate remedy in the common law court could get relief. This, therefore, is what is meant by Grotius in the definition above given that equity is the correction of that wherein the law is deficient. The Equity Court has power by injunc- tion to restrain such trespasses as those previously illus- trated ; to compel A to pass over the specific painting which he agreed to sell B ; and to restrain Y from diverting the stream from its original bed. But to the present day, consistent with its origin, the Equity Court will take juris- diction of a matter only when the suitor has no adequate remedy at law. As America was colonized by the English people who brought with them their native customs and laws, America inherited both the common law and equity of the Mother Country and retained them after the revolution. Penn- sylvania, to be sure, administered her equity under common law forms during the early part of the 19th century, but later the legislature conferred upon the courts of law, equity powers of the English Court of Chancery. And now, while the same judge may sit either as a law judge or equity judge, when he sits as equity judge or chancellor, the practice of the court of equity is strictly adhered to. In some states, e.g., New Jersey, separate courts of law and equity are still maintained, although most of the states as well as England have united them, and like Penn- 20 Conveyancing in Pennsylvania. sylvania, have conferred equity powers upon the judges of law courts who at certain times sit as chancellors and administer equity according to the equity practice, forms and rules. Returning now to the question of the difference between a legal title and an equitable title, we find that according to the common law the person who had the title to land was the only one recognized. The common law courts would not recognize the right to the title as being in any other person. Equity, on the other hand, being unfettered by the precedents of the common law, recognized rights which the common law would not entertain. E.g., suppose A agreed to sell his land to B, and then subsequently re- fused to do so. The legal title, of course, remained in A, but the right to the title was really in B. B in all fairness should have the land upon payment of the purchase price because A agreed to give it to him. Yet B's right to title was not recognized in the common law' court. B might recover damages for A's breach of contract, but since this particular piece of land could not be duplicated, the money obtained from damages would not make possible the pur- chase of a like piece. Money damages therefore would be inadequate. Equity, however, stepped in to correct this deficiency of the law. It recognized the fact that although B had no title to the land in the legal sense of the term, nevertheless he had a right to have that title transferred to him. So the Chancellor compelled A to give actual title to B and accept the money. An equitable title, therefore, is such a title as is enforceable only by a court of equity. Another example of an equitable title is a trust. A trust is created by giving title of property to one person to hold for the use of another. In a trust, therefore, the legal title is in one person and the beneficial use or ownership of the property is vested in another. The person who has the legal title is called the trustee. The person for whose benefit the trust exists is called the cestui que trust or beneficiary. The latter has no standing in a court of law. Title. 21 but in a court of equity his rights are enforced. His title is, therefore, an equitable title. 25. HOW TITLE MAY BE ACQUIRED. We have thus considered what title is, and the kinds that exist. We will now consider how title may be acquired and transferred. There are many different methods and processes whereby title to real estate, either legal or equitable, passes from one person to another. Blackstone divides the subject into only two main divisions, — descent and purchase. (2 Bl. 201, et seq.) By the former is meant the inheritance of property by an heir, and the latter includes all other methods of transfer of title. Much of Blackstone's analysis is now obsolete and it is sufficient for our purpose to con- sider the transfer of title by the following methods, some, of course, having much greater practical importance than others : ( 1 ) Agreement of sale. ( 2 ) Conveyances by deed or act of the parties, including conveyances by way of mortgage and ground rent. (3) Adverse possession and prescription. (4) Eminent domain. (5) Dedication. (6) Matter of record. (7) Descent or inheritance. (8) Will. (9) Escheat and forfeiture. (10) Accretion. 26. WHAT LAW GOVERNS TITLE TO REAL ESTATE. It is a general rule, subject to almost no exception, that the law of the State where land is situated governs all questions relating to the transfer of title. If the land is situated in Pennsylvania and the deed executed and delivered in another State where both parties reside, the requisites of a valid deed are determined by the law of Pennsylvania. (Linton v. Moorhead, 209 Pa. 646.) For, example, if the law of the other State allows a wife to deed her property without joinder of her husband, such a deed would be void as to Pennsylvania land, even though the whole transaction took place in the other State. Or if the law of the other State required witnesses or separate 22 Conveyancing in Pennsylvania. acknowledgment of a married woman, yet a deed executed in such other State without these requirements would be valid to pass title to Pennsylvania land. Conversely where land is situate in another State, but the entire transaction in the transfer of title takes place in Pennsylvania, the law of Pennsylvania has no bearing. {Baum V. Birchall, 150 Pa. 164.) CHAPTER IV. Capacity to Take^ Section Page 27. Introduction 23 28. Who May Take, Hold and Convey. Individuals ; In General 23 29. Aliens 24 30. Persons of Unsound Mind 24 31. Habitual Drunkards 25 32. Weakness of Mind and Senility 26 33. Minors 26 34. Persons under Duress. ... 27 Hold and Convey. ( Section Page 35. Married Women 27 36. Feme Sole Traders 30 37. Fiduciaries 30 38. The Commonwealth or the State 32 39. Corporations 33 40. Foreign Corporations .... 35 41. Unincorporated Societies and Churches 36 42. Partners 38 27. INTRODUCTION. Before considering in detail the various methods of acquiring title to real estate, we shall first consider what persons or bodies have the power or right to hold, acquire or convey title toi real estate. The capacity to take, to hold and to convey title to real estate, as Professor Mitchell in his excellent lectures on conveyancing says, de- pends upon a variety of circumstances. "Some persons can take title but cannot hold it. Others can take and hold but cannot convey it." 28. WHO MAY TAKE, HOLD AND CONVEY. IN- DIVIDUALS. IN GENERAL. Any person who has the legal capacity to bind himself by contract, may convey his real estate. The same dis- abilities which incapacitate him from making a legal contract, incapacitate him from making a valid deed. Keeping in mind the general rule, therefore, that any in- dividual not under a legal disability may freely convey land, it becomes important to see and understand what 23 24 Conveyancing in Pennsylvania. these disabilities are. Classified under their respective dis- abilities, we have: Aliens, Persons of Unsound Mind, Drunkards, Persons Under Duress, Minors, Married Women, Feme Sole Traders, Fiduciaries. Since not all of these individuals are absolutely prevented from con- veying, it becomes necessary to consider each one sepa- rately. 29. ALIENS. At common law, it was deemed for the welfare of England that foreign-born residents should be forbidden to hold land or inherit land. Blackstone, however, points out they could purchase land, but the moment they did so it was liable to be forfeited to the sovereign. (2 Black- stone, 293.) The harshness of this rule has been greatly relaxed and in most States the alien friend is now under no disability. In Pennsylvania, by statute (Act, Feb. 28, 1791, 3 Sm. L. 4), alien friends may take by descent with- out limit. But under the Act of May 1, 1861 (P. L. 433), they are permitted to hold by purchase only 5,000 acres and not exceeding |20,000 in net annual value. Up to this limit they may take, hold and convey as freely as a native born or a naturalized citizen. The Legislature frequently passes Acts confirming all titles that have passed through aliens, thus waiving the right of the State to insist upon a forfeiture of lands held in excess of the legal limit. ( See Act of June 24, 1895. P. L. 264, and Act of March 26, 1903, P. L. 67.) 30. PERSONS OF UNSOUND MIND. This heading should be taken to include not only lunatics but idiots and all persons of unsound mind. The law pre- sumes every one sane and the burden is upon him who seeks to establish the want of sufficient mental capacity to execute a deed and such incapacity must be established beyond a reasonable doubt. {In re Gang were' s Estate, 14 Pa. 417. ) In most jurisdictions, laws have been enacted pro- Capacity to Take, Hold and Convey. 25 viding for methods by which a person may be legally ad- judged insane, and such a decree when made is conclusive and binding upon all the world, and renders deeds of the lunatic absolutely void. By Pennsylvania statutes the appointment of a committee after inquisition or a guardian by the Court, is a decree which establishes the lunacy of the party absolutely, and from that time all capacity to contract is gone and his deed is absolutely void. {Imhoff V. Witmer, 31 Pa. 243.) The inquisition and decree are recorded, and this is notice to all the world of the party's insanity and incapacity to contract. The law also provides that it is the duty of the commissioner and jury, sitting to determine the lunacy, to find how long the party has been insane and if he has lucid intervals. During the period from the time of the commencement of insanity so found to the time of the decree, there is a presumption that the party was without capacity to contract, but this presump- tion may be overcome by proof that the contract or deed was made in a lucid interval. Where the party has never been legally declared insane the question of whether he was or was not insane at the time of the execution of the deed is, of course, a question of fact to be decided by the jury, the burden being upon him who seeks to set the deed aside. The several Acts of Assembly give to the committee or guardian of the lunatic all the powers necessary to manage his estates, but the real estate cannot be sold or mortgaged without authority from the court. 31. HABITUAL DRUNKARDS. Drunkenness is really a species of temporary mental de- rangement. To relieve himself from a contract or deed made while intoxicated a party must prove that he was so drunk as not to know what he was doing. The deed of a person executed while drunk is not void but voidable, i.e., it may be confirmed or made good when the grantor be- comes sober. To set the deed aside he must disavow it promptly ; otherwise the law presumes he means to ratify 26 Conveyancing in Pennsylvania. it. Where, however, a person is habitually intoxicated and is declared an habitual drunkard by decree of court, then he is in the same position as a person adjudged a lunatic, and all his deeds are void. 32. WEAKNESS OF MIND AND SENILITY. Mere weakness of mind due to old age, accident or disease is not of itself sufficient to set aside a deed {Nace V. Boyer, 30 Pa. 99; Kleckner v. Kleckner^ 212 Pa. 515) ; there must be some fraud or mistake before a formal instru- ment such as a deed can be set aside. However, the court is alert to protect the aged or weak-minded, and the Chan- cellor will usually seize on slight circumstances of fraud to set aside a deed so secured. [Hetrick's Appeal, 58 Pa. 477. ) In Pennsylvania, by the Act of May 28, 1907, (P. L. 292 ) , a method of protecting the property of the aged and weak-minded is now proAdded. Upon proper application made to the Court, by petition filed setting forth that the party is unable by reason of insanity, feeble-mindedness or other mental defectiveness from taking care of his prop- erty, the Court will fix a time for a hearing, and if con- vinced that the allegations of the petition are correct, will appoint a guardian to protect and conserve the estate of such person. Such guardian has the same powers and is subject to the same duties as a committee on lunacy. 33. MINORS. A minor (often designated as an infant in a legal sense) , is a person under twenty-one years of age. The law pro- vides that a minor cannot make a contract, the theory being that he is too immature and must be protected against his own folly. There is a certain exception, viz : that he may contract for necessaries. Eemembering that his dis- ability results from his incapacity to contract, it follows he can neither contract to acquire title by deed nor convey it by deed. He may, however, acquire title by deed of gift or by devise or by descent, since in such cases no capacity Capacity to Take, Hold and Convey. 27 to contract is required. The contract or deed of a minor is not void but voidable, and he has it in his power when he reaches the age of twenty-one years to either ratify it, in which event it becomes good, or disaffirm it, in which event it becomes void absolutely. But he must do one or the other within a reasonable time after he arrives at the age of twenty-one years, else the law presumes his failure to act to be a ratification. {Dolph v. Hand, 156 Pa. 91.) The contract, however, is voidable only on the part of the infant. An adult party with whom the contract is made is bound. Neither can the heirs of a deceased minor elect to disaffirm a deed which the minor had made. Upon dis- affirmance of a deed made during minority, the minor should return the purchase money received for the prop- erty, but if he has spent or lost it, his action in disaffirming is nevertheless effectual even though no return can be made of the consideration. {Shaw v. Boyd, 5 S & E. 309; RucUzky V. DeHaven, 97 Pa. 202.) 34. PERSONS UNDER DURESS. Deeds made by persons under duress are voidable and may be set aside by action of the party if done within a reason- able time after the removal of the restraint. By duress is meant some undue compulsion such as threats, actual vio- lence, imprisonment, which prevents the free exercise of the will power of a person and makes him execute the deed or contract through fear alone. A person, however, is sup- posed to possess ordinary firmness unless it is shown by reason of age or other sufficient cause he is weak or infirm. The constraint that takes away free agency must be one that is imminent and without immediate means of protection, and such as would operate upon the mind of a person of reasonable firmness. ( Sulzner v. Gappeau Lemly, etc., Co., 234 Pa. 162.) 35. MARRIED WOMEN. At common law a married woman was under many disa- bilities for, as said by Mitchell {Real Estate & Convey anc- 28 Conveyancing in Pennsylvania. ing in Penna. P. 372), "at common law the husband and wife are one person and that one is the husband." In Pennsylvania, step by step married women's rights were in- creased until the Act of June 8, 1893, (P. L. 344, sec. 5), completed her emancipation. That act provided that a married woman shall have the same right and power as an unmarried person to contract and to acquire, own, sell or otherwise dispose of real estate, except that she cannot mortgage or convey her real estate unless her husband joins in such mortgage or conveyance. The act makes a further exception to the effect that a married woman cannot be- come accommodation indorser, maker, guarantor or surety for another. Sole and Separate Use Property. — Even before the Mar- ried Women's Property Acts it was possible for a married woman to acquire, either by deed or will, real estate held in trust for her sole and separate use. Such a trust could be so created as to give her the same exclusive rights and powers possessed by an unmarried person. It was early established, however, in Pennsylvania, that her powers over such property were limited to those expressly set forth in the instrument creating the trust. {Lancaster v. Dolan, 1 Eawle 231.) Such a sole and separate equitable estate may be created by a conveyance direct to the wife, without the mention of a trustee. ( Wright v. Brown, 44 Pa. 224. ) This peculiar estate is of less importance and is less frequently created since the passage of the Married Wom- en's Property Acts. However, it has been held that these Acts apply only to the legal estate and not to sole and separate use trusts. (MacConnell t\ Lindsay, 131 Pa. 476; Holliday v. Hively, 198 Pa. 335.) Thus it is still possible, by the method of such a trust to give a married woman power to convey and mortgage property without the joinder of her husband and free and clear of curtesy. Since her power over sole and separate use property de- pends entirely upon the terms of the instrument, it may be more limited or it may be more extensive than the power Capacity to Take, Hold and Convey. 29 conferred by the Married Women's Property Acts as to land held under the ordinary legal title. Conveyances between Husband and Wife. — After the passage of these married women's property acts, it was a question in doubt as to whether a wife could convey directly to her husband if made bona fide and without seeking to defraud creditors. The matter is now settled that she can, although it was necessary for the legislature to pass an act (Act of June 3, 1911, P. L. 631) so declaring in order to overrule the case of Alexander v. Shalala, 228 Pa. 297, which had held she could not. The act of 1911 provides "That it shall be lawful for a married woman to make con- veyances of real estate to her husband as if she were a feme sole" and also that "all conveyances of real estate hereto- fore made by any married woman to her husband, which had been duly signed, acknowledged and delivered by her are hereby validated and made good in law." The Superior Court, however, has declared the last clause of this act to be inoperative, on the ground that the attempt of the legis- lature to validate deeds made by married women direct to the husband before the passage of the act, disturbed vested titles and was, therefore, unconstitutional. {Bu- chanan V. Corson, 51 Pa. Superior Ct. 558. ) This decision only renders the last clause of the act ineffective, and the first clause permitting such conveyances in the future, still stands. While the right of a wife to convey to her husband di- rectly had been a vexed question until settled as above, it had been long settled on the other hand that a husband might not only convey directly to his wife for a valuable consideration but he might also convey to her as a gift when not prejudicial to his creditors. {Reagle v. Reagle, 179 Pa. 89; Mitchell v. Phillips, 236 Pa. 311.) It has always been considered the better practice in either case, however, to have the married person convey to a third party who in turn conveys to the husband or wife. 30 Conveyancing in Pennsylvania. 36. FEME SOLE TRADERS. A feme sole trader is a married woman authorized by statute under certain conditions to carry on business and trade as though she were "sole" or unmarried. In Pennsyl- vania, the Act of May 4, 1855, P. L. 430, sec. 2, and the Act of May 28, 1915, P. L. 639, provide that whenever her husband from drunkenness, profligacy or other cause shall neglect or refuse to provide for her or shall desert her, her property real and personal how- soever acquired, shall be subject to her free and absolute disposal during her life or by will, without any liability to be interfered with or obtained by her husband, and in case of her intestacy shall go to her next of kin as if he were previously dead. For some time there was considerable doubt as to whether this act gave a feme sole trader the right to convey a clear title without joinder of her husband, but it has now been settled that she can. {Elsey v. McDaniel, 95 Pa. 472.) And she can even ratify a deed previously delivered before separation from her husband. {Simons' Estate, 20 Pa. Superior Ct. 450 at 469. ) Not only can she make a deed as though unmarried, but she can also mort- gage her property without joinder of her husband. {Red- dens' Appeal, 17 Atlan. Eep. 29. ) It is not necessary for her to be actually declared by decree of court to be a feme sole trader but the better practice and safer plan is to have her so decreed and then to recite that fact in the deed of conveyance. {Ellison v. Anderson, 110 Pa. 486. j If never declared a feme sole trader, the facts that bring her within the provisions of the Act of May 4, 1855, should be recited in the instrument of conveyance, although failure to do so will not invalidate the instrument. {Fonnan v. Hosier, 94 Pa. 418.) A court certificate of feme sole trader is over- come by a later reconciliation between husband and wife. {Flanagan's Estate, 59 Pa. Superior Ct. 61.) 37. FIDUCIARIES. By a fiduciary we mean one who occupies a relation of trust and confidence with another. The fiduciaries which Capacity to Take, Hold and Convey. 31 we shall briefly consider are : Trustee, Executor, Adminis- trator and Guardian. Mr. Fallon, in his very complete book on conveyancing, says at page 91 : "Generally speak- ing, trustees, including guardians, executors, and assignees, have no power to sell or convey lands unless authorized and empowered by the instrument of appointment or under the direction of the court having jurisdiction over the trust." If there is more than one trustee or guardian all must join in the deed. Where the instrument which creates the trust defines and prescribes any manner in which it is to be exe- cuted that method must be strictly followed. Before ac- cepting a deed from a fiduciary a purchaser must, at his peril, ascertain the extent of the trustee's power. As Fal- lon further says, "A deed simply to AB, trustee, without stating for whom or for what does not afford such an op- portunity and is to be considered bad conveyancing." The golden rule to be followed is : Look to the instrument defin- ing the powers of the trustee. In Bwyard v. Farmers' and Mechanics' Nat. Bank, 52 Pa. 232 at 237, the court said: "No purchaser either of land or personalty would be safe in buying from a known trustee without looking at the nature and extent of his trust. It is true a trustee may have power to sell, but the power is not a necessary incident to his trust, as it is to the office of an executor. He may have the legal title yet no authority to sell. His sale may be entirely authorized by the instrument which created the trust; it may have been forbidden." In Pennsylvania, the Act of June 7, 1917, P. L. 447, sec. 28 b, authorizes execu- tors, trustees, etc., who have express authority to sell, to make either public or private sale unless the mode of sale is specifically directed. If a public sale is directed, only a public sale can be made and a private one will carry no title. On the ground of public policy executors and trustees cannot purchase at their own sale. But such a sale, if not avoided by the parties for whose benefit the trust exists, may be made good by their ratification. If a trustee desires 32 Conveyancing in Pennsylvania. to buy or bid at his own sale, he should make application to the court. (Fiduciaries' Act of 1917, P. L. 447, sec. 16 k. ) An executor has no power or right over real estate unless the power be given him in the will, or unless the personal property is not sufficient to pay the decedent's debts, in which case the executor may make application to the or- phans' court for leave to sell the decedent's real estate to pay debts. So also an administrator has no power or con- trol over real estate unless the personal property is not suf- ficient to pay debts in which case he may, as in the case of the executor, petition the orphans' court for leave to sell the real estate. In either case the authority of the fiduciary selling or the decree of the court authorizing him to sell should be set forth in the deed. ( See Appendix, Form 28, page 470. ) Any fiduciary without power to sell may, under certain circumstances, obtain such power by decree of court under the Price Act. ( See section 203. ) 38. THE COMMONWEALTH OR THE STATE. Turning now to associations of individuals that may acquire, hold and convey title we will consider : first. The State or Commonwealth; second. Corporations; third. Unincorporated Societies; fourth. Partners. The Commonwealth, i. e., the State, may purchase, hold, sell, convey, lease and mortgage land like any person. It can gain title by adverse possession but cannot lose it in that way. The statutes of limitation do not run against the Commonwealth, and no one can gain title by adverse possession against it. (Bagley v. Wallace, 16 S. & R. 245; Com. V. Baldwin, 1 Watts 54.) The Commonwealth has the further power to take land for public purposes except as restricted by the Constitution, and to delegate this right to certain public corporations as provided by law. This power to take land from individuals against their wish is called the right of eminent domain. The Constitution provides that just compensation must be made to the owners and Capacity to Take, Hold and Convey. 33 the various states have prescribed methods laid down by law which must be carefully followed when the right is exercised. For a fuller discussion of this power see chapter XII. 39. CORPORATIONS. Corporations have only such right to hold and convey land as is given them by the authority that creates them, i. e., the State. In Pennsylvania, the preamble of the Act of April 6, 1833 (P. L. 167) sets forth that "no corporations either of this State or of any other state though lawfully in- corporated or constituted can in any case purchase lands within this State either in its corporate name or names of any person or persons whomsoever for its use, directly or indirectly, without incurring the forfeiture of said lands to this Commonwealth unless such purposes be sanctioned or authorized by an act of legislature." [See also Eeport of the Judges (3 Binney 595 at 625) as to the English Mort- main Acts in force in Pennsylvania.] But while a corpo- ration has not the power to purchase land except to the ex- tent authorized by law, still as to such land as the law au- thorizes it to hold, it may convey and dispose of it as fully and freely as an individual may do in respect to his own property. (Ardisco v. N. A. Oil Co.^QG'Pa. 315.) Prior to the Constitution of 1874, each corporation was created by special act of assembly, and its right to hold land was specified in the creating act. In 1874, the legislature passed a general corporation act which divided all corpo- rations into two classes : Corporations for profit, and cor- porations not for profit. The former are chartered by the Governor of the State and the latter by the courts. Both classes of corporations are authorized to hold, purchase, and transfer such real estate as the purposes of the cor- poration require, not exceeding the amount limited by its charter or by law." Section 6 of article XVI of the Con- stitution stipulates that a corporation shall not take or hold any real estate except such as is necessary and proper for its legitimate business. 3 34 Conveyancing in Pennsylvania. In additional to this general limitation, there are a few special limitations upon particular kinds of corporations. For example, corporations of the first class (not for profit) have power to hold real estate only up to the clear yearly rental value or income of fifty thousand dollars. (Act of May 15, 1913, P. L. 214.) Such corporations, however, can petition the Court of Common Pleas for permission to hold a greater amount of real estate. (Act of June 1, 1915, P. L. 701.) These provisions also apply to trustees who hold real estate for religious, charitable or educational purposes. Iron manufacturing companies may own or lease mining lands not to exceed ten thousand acres. (Act April 29th, 1874, P. L. 73 at 99, section 38, as amended by Act of May 24, 1887, P. L. 188. ) Building and Loan Associations can hold lands not exceeding fifty acres, but such lands must be disposed of within ten years from the date of incorporation. This is in addition to the power to purchase real estate to protect a mortgage or other lien, and also in addition to the power to purchase such real estate as the purposes of the corporation require. (Act of April 29, 1874, P. L. 73 at 98 ; Act of May 5, 1921, P. L. 380. ) Eeal estate companies are restricted to five hundred acres in cities or boroughs and ten thousand acres outside thereof. (Act of April 17, 1876, P. L. 36, section 9. ) Several classes of corporations have power to purchase, either at public or private sale, real estate upon which they have mortgage or judgment liens or ground rents : Banks (Act May 13, 1876, P. L. 161, section 8), Building and Loan Associations (Act April 29, 1874, P. L. 73 at 98, sec- tion 37), Charitable, religious or educational corporations (Act May 13, 1879, P. L. 60), Title insu/rance companies (Act of May 9, 1889, P. L. 159). The period of time for which such real estate could be held was, in most cases, originally limited to five or ten years, but the legislature passes an act or acts every few years extending the period for another five years. Since the Act of April 15, 1903, P. L. 200, it seems that these extensions apply only to bank- ing corporations. Capacity to Take, Hold and Convey. 35 Prior to 1919, mechanical, mining, quarrying or manu- facturing companies could not dispose of their real estate without the consent of a majority of the stockholders. By the Act of June 12, 1919, P. L. 442, the board of directors of such corporations has power both to acquire and to dis- pose of real estate. This act validates any prior convey- ances of property without the consent of a majority of the stockholders. Nearly every year the legislature passes an act validating titles to real estate conveyed by corporations without power to hold or convey the same. ( See Acts of April 20, 1921, P. L. 196, and May 25, 1921, P. L. 1124.) Convey- ances after the expiration of a corporation's charter are validated by the Act of June 19, 1913, P. L. 539 ; and con- veyances to or by a corporation before its charter is re- corded are validated by the Act of March 15, 1911, P. L, 17. All corporations have power to mortgage their real es- tate, subject to the requirements for increasing the in- debtedness of a corporation. (Act of February 9, 1901, P. L. 3, as amended by Act of April 22, 1905, P. L. 280.) 40. FOREIGN CORPORATIONS. By foreign corporations are meant such as are chartered in another state, e. g., a corporation chartered under the laws of New Jersey would be a foreign corporation in Pennsylvania. Foreign corporations have no rights outside of the jurisdiction which created them except such as may be given them by the sovereignty in whose domains they seek to carry on business. {Van Steuben v. Central R. B. Co., 178 Pa. 367.) In fact, a foreign corporation may be excluded from the jurisdiction of a state altogether. They are, however, usually admitted on terms, but they should comply strictly with the general law providing for the con- duct of foreign corporations doing business in the State. Prior to 1919 there was no general law giving foreign cor- porations the power to hold real estate in Pennsylvania. A large number of special laws, however, had been passed 36 Conveyancing in Pennsylvania. conferring such power on particular kinds of corporations. These laws are now rendered obsolete by the Act of June 12, 1919, P. L. 441, which gives to foreign corporations the same powers to hold real estate that are possessed by do- mestic corporations. The acts previously mentioned validating conveyances of real estate by corporations without power to hold or con- vey, apply also to foreign corporations. 41. UNINCORPORATED SOCIETIES AND CHURCHES. A grant or devise to an unincorporated association, ex- cepting religious and charitable societies, is void for want of a grantee with legal capacity to take. (Kirk v. King, 3 Pa. 436 — case of a void grant ; Zeisweiss v. James, 63 Pa. 465 — a void devise.) If the membership is small, all of the members can be made grantees and the title will re- semble that of partnership property. A better plan, es- pecially for large associations, is to have title conveyed to trustees to hold for the benefit of the organization and in accordance with its rules and instructions. If the association exists for religious or charitable pur- poses, special rules of law apply. It is entirely clear under all the authorities that such associations, in practical effect, if not in legal theory, have the same capacity to receive and hold real estate as corporations. Many cases go farther and hold that actual legal title is in the unincorporated body as such. There is no legal obstacle to such a view. A club or a church is just as much a natural entity, apart from the individuals who comprise it, whether it is incor- porated or not. Although such associations, if unincor- porated, are considered without legal capacity for most purposes, yet it is entirely within the province of the law to give them the legal capacity to hold title to real estate. The decisions of the courts in this connection are based primarily upon the doctrine of so-called "charitable trusts," under which the courts will not allow such a trust to fail for the lack of a trustee, but will appoint a suitable trustee. Capacity to Take, Hold and Convey. 37 This doctrine is firmly established apart from statute, but is recognized in Pennsylvania by the Act of April 26, 1855, P. L. 328, section 10. {Zimmerman v. Anders, 6 W. & S. 218; Frazier v. Church, 147 Pa. 256.) The word "chari- table" is broadly interpreted as meaning any association for edification, uplift or public benefit whether it be reli- gious, literary, scientific or charitable in the ordinary sense of the term. Although in most cases actual trustees are appointed either by the court or the association, the title is considered as vested in the association as such. In Brendle v. German Reformed Congregation, 33 Pa. 415 at p. 425, the Supreme Court said "The conveyance to their trustees constituted an executed legal estate in the congregation itself Such trustees seldom if ever convey to successors ; but the title in their name is treated as the title of the congregation." See also Liederkranz Society v. Turn Yerei/n, 163 Pa. 265. As a result of this theory of the title, it is held that title vests in subsequent trustees appointed by the association, even though there are no conveyances from one set of trus- tees to their successors. {Kranczumas v. Eoban, 221 Pa. 213 at p. 221; Hays v. Bridge Co., 32 Pitts. L. J. (N. S.) 265. ) Similarly when land is devised to an unincorporated society, which later incorporates, title vests in the corpora- tion without formal deed of conveyance, on the theory that the title has been in the society all the while. (Shomayin V. Moss, 22 Pa. Superior Ct. 356 ; Civic Club v. Payne, 19 Dauph. 150. ) An unincorporated church can acquire title by adverse possession, which title vests in the church when incorporated without any formal conveyance. {Hough v. Rose, 10 West. 80 (1918) , in which the court gives a learned and exhaustive analysis of title in unincorporated bodies. ) Religious bodies are sometimes considered as on a special footing owing to an early Act of February 6, 1831, which sought to protect religious congregations from the unau- thorized acts of trustees or dissenting groups. {Phipps v. Jones, 20 Pa. 260. ) The rules above stated are not limited 38 Conveyancing in Pennsylvania. to churches, however. Thus legal capacity to hold land was accorded a civic club {Civic Club of Harrisburg v. Payne, 19 Dauph, 150 (1916) ); and a beneficial Lodge (Hays V. Bridge Co., 32 Pitts. L. J. (N. S. 265). The Act of May 20, 1913, P. L. 242, provides that all prop- erty bequeathed, devised or conveyed to any church or re- ligious society shall be held subject to the control of a ma- jority of the lay members of the society or church. 42. PARTNERS. A partnership can take title to real estate in any of the following ways : (1) In the names of all the partners; (2) In the names of one or more but less than all the partners ; (3) In the partnership name. (Act of March 26, 1915, P. L. 18.) A conveyance of partnership real estate is governed by the following rules : ( 1 ) If title is in the names of all the partners all must join in the conveyance in order to pass good legal title ; (2 ) If title is in the names of less than all, those who hold title can convey a good title, unless they have no authority to convey and unless the purchaser has knowledge of such lack of authority. In such a case a dis- closure of the partnership in the recorded deed to the part- ners is considered as notice of lack of authority. (3) If title is in the partnership name, any partner can convey a good title, unless he has no apparent authority to convey. Even though the title of the first purchaser may be defective owing to such lack of authority, the title becomes inde- feasible if it passes to a subsequent bona fide purchaser without knowledge of the lack of authority. (Act of March 26, 1915, P. L. 18.) Real estate held by partners for the purposes of the firm business does not have the usual incidents of a tenancy in common. It is considered as part of the assets of the firm, and the interest of an individual partner in such real estate is only an intei-est in the firm assets, and not a right in real Capacity to Take, Hold and Convey. 39 estate as a tenant in common. This interest is considered as personal property and not as real estate. This common law doctrine is enacted in the Partnership Act of 1915, sections 25 and 26, which provides for a special form of tenancy entitled "tenancy in partnership." Thus, a judgment against a partner individually is not a lien upon real estate described as partnership property, and such real estate can be sold by the firm, free from any claim of the judgment creditors of individual partners. {Meily V. Wood, 71 Pa. 488; Fair Hope Brick Co., 183 Pa. 103; Act of 1915, section 25 (2c) ). Likewise, partnership real estate can be sold, free of any claim of dower by the wife of an individual partner. ( West Hickory Mining Assn. v. Reed, 80 Pa. 38 at 51; Act of 1915, section 25 (2e)). As between the partners and any persons claiming under them, excepting creditors or purchasers, parol evidence can be introduced to show that real estate which appears in the deed to be held as a tenancy in common, is in reality held as partnership property. {Ahhot's Appe{al, 50 Pa. 264; Ihmsen v. Huston, 247 Pa. 403 at 408.) As regards the rights of creditors or purchasers, however, real estate is not considered as partnership property unless such fact is disclosed in the deed to the partners. A creditor of an individual partner, in looking at the record and find- ing no mention of a partnership, is entitled to assume that the property is held as a tenancy in common. His judg- ment, therefore, becomes a lien upon his debtor's interest in the property. {Cundey v. Hall, 208 Pa. 335; Gwinner v. Trust Co., 226 Pa. 614 ; Salter v. Acker Co., 62 Pa. Superior Ct. 207.) The question has frequently arisen as to whether the in- terest of a partner in firm real estate, descends, upon his death, as personalty or realty. The cases are not entirely consistent, the later decisions tending to the view that the property descends as personalty as opposed to the contrary view in the earlier cases. Prior to the act of 1915 a dis- 40 Conveyancing in Pennsylvania. tinction was drawn between a continuation of the business by the other partner or partners after the death of a part- ner, and a complete dissolution and winding up of the busi- ness at his death. In the former case, it seems settled that the interest of the deceased partner in the firm real estate passes to his administrator or executor and is distributed as personal property. {Leafs Appeal, 105 Pa. 505 ; Ihmsen V. Huston, 247 Pa. 403 ; Arbuckle's Estate, 252 Pa. 161 ; Hall's Estate, 266 Pa. 312.) Where, however, the partner- ship is dissolved and the business wound up at the death of a partner, it has been held that his interest in firm real estate descends as realty. {Foster's Appeal, 74 Pa. 391; Haeberly's Appeal, 191 Pa. 239. ) The act of 1915, section 25, provides that upon the death of a partner, his interest in partnership property passes to the surviving partner, and upon the death of the last survivor the entire property passes to his legal representative. This would seem to change the rule of the above cases holding that firm real estate descends as realty under certain circumstances. ( See Hall's Estate, 266 Pa. 312.) The surviving partner or partners are, of course, under obligation to account to the estate of the deceased partner for the cash value of his interest. The question arises less often since the Intestate Act of 1917, which places real and personal property upon the same footing as regards inheritance. The question still has importance, however. For example, it was held that a sale by an administrator of a deceased partner's interest in the firm passed title to his interest in firm real estate. Ihmsen v. Huston, 247 Pa. 403. ) And upon the death of a partner domiciled in New York, it was held that his interest in partnership real estate situated in Pennsylvania, was not subject to inheritance tax in Pennsylvania, but was personalty and hence taxable in New York. {Arbuckle's Estate, 252 Pa. 161.) CHAPTER V. Agreements of Sale. Section Page 43. In General 41 44. Must be in Writing. Stat- ute of Frauds 42 45. What the Writing Must Contain. Form 43 46. Meaning of the Various Parts. The Introduction 44 47. Description 44 48. Terms and Conditions... 45 49. Fire Insurance Policies. . 46 50. Incumbrance Clause .... 47 51. Fixture Clause 48 52. Possession Clause 48 53. Apportionment of Taxes, Etc 48 54. Kind of Title Agreed Upon 49 55. Execution of Agreement of Sale; Signature by Agent 50 56. Acknowledgment of Agreement of Sale ; Eecording 50 Section Page 57. Assignment of an Agree- ment of Sale 51 58. Legal Effect of Agreement of Sale 52 59. Eights and Remedies upon Breach 54 60. Where Agreement is Writ- ten. Default by Seller 54 61. Where Agreement is Writ- ten: Default by Buyer 56 62. Where the Agreement Is Oral 58 63. Circumstances under Which Oral Contracts Will Be Enforced 58 64. Husband or Wife Not Signing 60 65. Analysis of Rights and Remedies upon Breach 61 66. Extinction of Agreement 63 67. Suggestions in Drawing Agreements of Sale. . . 63 43. IN GENERAL. It is generally known that the actual transfer or convey- ance of title to real property is made by an instrument called a deed. But most deeds are merely the fulfilment of a prior agreement between the buyer and seller as to the price to be paid and other terms. The contract of sale in itself creates an equitable estate in the buyer and is there- fore a form of conveyance. The agreement, which for rea- sons to be hereinafter explained must be in writing, will be, therefore, our first consideration. 41 42 Conveyancing in Pennsylvania. Suppose A desires to buy B's property. After much ne- gotiation both arrive at a mutual understanding and desire to close the transaction. This understanding embodies the terms and conditions of the sale and must be in writing and signed by at least the owner of the property. An agree- ment of sale may, therefore, be defined as an agreement or contract in writing wherein one party agrees to sell and another agrees to buy real estate under such terms and conditions as are therein set forth. 44. MUST BE IN WRITING. STATUTE OF FRAUDS. It has been considered sound public policy in all states that certain contracts should be required to be made in writing. And in all common law jurisdictions the one kind of contract most universally required to be in writing is the one relating to the sale and creation of interests in real property. The first statute requiring such contracts to be in writing was passed in England in 1676. As it recited in its preamble that its purpose was to prevent frauds, it has ever since been known as the Statute of Frauds. Statutes similar, to a greater or lesser extent, have been reenacted in almost every state of the United States. Pennsylvania Statute of Frauds. — The Pennsylvania Statute of Frauds is the Act of March 21, 1772 (1 Sm. Laws 389 ) , which provides : "All leases, estates, interest of freehold or term of years or any uncertain interest of, in or out of any messuages, manors, lands, tenements or hereditaments, made or cre- ated by livery of seisin only, or parol and not put in writing and signed by the parties so making or creating the same or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity, be deemed or taken to have any other or greater force or effect, any con- sideration for making any such parol leases or estates or any former law or usage to the contrary notwithstanding, except nevertheless all leases not exceeding the term of three years from the making thereof." Agreement of Sale. 43 Continuing, the statute provides: "And moreover no leases, estates or interests either of freehold or terms of years or any uncertain interest of, in, to or out of any mes- suages, manors, lands, tenements or hereditaments shall at any time be assigned, granted or surrendered unless it be by deed or note in writing signed by the party so assigning, granting or surrendering the same or their agents thereto lawfully authorized by writing or by act or operation of law." This in brief means that no interest in land shall be cre- ated or conveyed unless in writing signed by the party or his agent. The latter's authority to do so must also be in writing. Since a contract creates an equitable estate in the buyer, it is within the terms of the statute and an oral con- tract is not enforceable. As will be seen later, however, such oral contracts are not void and give rise to certain rights. Under certain circumstances of part performance, the courts will enforce an oral contract to full perform- ance in spite of the statute of frauds. 45. WHAT THE WRITING MUST CONTAIN. FORM. The statute requires no particular form ( Galdwallader V. App., 81 Pa. 194 ) , but the memorandum to be sufficient, should disclose (a) the names and interest of the parties, (b) the terms of the sale, (c) a definite enough description to identify the land, and ( d ) the consideration or the price to be paid. The agreement need not be under seal ( Colt v. Selden, 5 Watts 525 ) , nor need it be witnessed. It has been held that a receipt on account of purchase price, if it contain these particulars, is sufficient. (Dalzell v. Nuhlum, 49 Pitts. L. J. 138. ) The agreement need be signed only by the vendor — that is, the owner — although it is customary and better practice to have the vendee sign also. Where the vendor is married, both the husband and wife must sign either the contract itself or a power of attorney authorizing an agent to sign for them. 44 Conveyancing in Pennsylvania. While it is true that no set form is required, it has become customary to use forms, printed copies of which can be ob- tained at any legal stationer's. (See Appendix, Forms 11 and 12, pages 445, 447.) A common form is given in the following pages with the blanks filled in and the several parts discussed in order. 46. MEANING OF THE VARIOUS PARTS. THE IN- TRODUCTION. "Agreement made 12th day of September, A. D. 1911, between A. B., of the City of Philadelphia, State of Pennsylvania, of the first part, and C. D., also of said city and state, of the second part. "Witnesseth that the said party of the first part agrees to sell and convey to the said party of the second part, and the said party of the second part agrees to purchase." This part of the agreement may be called the introduc- tion, and its purpose is to recite the names, identify the parties and to state what the agreement is about. 47. DESCRIPTION. "All that certain lot or piece of ground with the buildings and improvements thereon erected, known as No. 2214 Y Street, in the City and County of Phila- delphia, State of Pennsylvania.." The description should be definite enough to identify the property. Within the city limits the words "property situate No. 2214 Y Street, in the City of Philadelphia, State of Pennsylvania," is definite enough. Where there is no street and number then the description should be by metes and bounds and copied from the vendor's deed, e. g., as follows : "All that certain lot or piece of ground with the three-story brick messuage or tenement thereon erected, situate on the west side of 'Y' Street, at the distance of 337 feet northward from the north side of Agreement op Sale. 45 'X' Street, in the Fiftieth Ward of the City of Phila- delphia, containing in front or breadth on the said 'Y' Street, 18 feet and extending of that width in length or depth westward between parallel lines at right angles to said 'X' Street one hundred feet to a three-feet wide alley leading northward from 'X' Street to 'Z' Street." 48. TERMS AND CONDITIONS. "The said party of the second part agrees to pay therefor the sum ot sixty-five hundred dollars ($6,500) as follows: Two hundred dollars ($200) on the sign- ing of this agreement [which deposit it is hereby agreed may, at the option of the said party of the first part, be retained by said party as liquidated damages in case of default by the said party of the second part in the performance of this agreement] and the balance of the purchase money at the time of settlement." Obviously, this clause sets out the method of paying the purchase price. Only one thing calls for explanation at this point. Later on ( Sec. 61 ) , other matters based on this clause will be given more extended treatment. When a sale is first agreed to it is customary for the pur- chaser to make a payment of "down" or "earnest" money to bind the bargain. In our case above it is two hundred dollars. It is usually further agreed that in case of de- fault by the purchaser this sum shall be kept by the vendor at his option and not returned to the vendee. In other words there is an understanding ahead of time that if the vendee does not perform, both parties agree on the "down" money as the damages suffered by the vendor in so far as they can be measured in money. The rest of this part of the agreement relates to the terms under which consideration should be paid. The methods of paying the consideration may be as many and varied as the parties may see fit to agree upon. For example, if de- sired to purchase subject to an existing mortgage it may be stated as follows : 46 Conveyancing in Pennsylvania. "The said party of the second part agrees to pur- chase said property for the sum of $6,500 and to pay for the same as follows: An existing first mortgage of $4,000 now against the property to remain and the sum of $2,500 in cash as follows : $200 at the time of the execution of this agreement and the balance at the time of settlement." Again, the property may be clear of incumbrance and the vendor may agree to take a first mortgage as part consider- ation, in which event the clause may read as follows : "The said party of the second part agrees to pay and the party of the first part agrees to accept there- for the sum of $6,500 in the following manner : $200 at the time of the signing of this agreement and the remainder by executing to the vendor a first mortgage to the amount of $4,000 on said property and the pay- ment of the balance of $2,300 in cash at the time of settlement." 49. FIRE INSURANCE POLICIES. "All perpetual policies of fire insurance are to be paid for at the withdrawal value, and term policies at proportionate value for the unexpired term." Fire insurance policies are generally of two kinds, per- petual and term. A perpetual policy is one which remains in force forever without payment of additional premium. It is issued on the payment of one premium based on a charge of two per cent of the amount insured for. Thus the premium on $1,500 policy would be $30. This policy may be surrendered and cancelled at any time and the holder thereof receive a rebate or return of the whole pre- mium paid less 10 per cent. This is what is known as the cancellation or withdrawal value. A term policy is a policy which, as the name signifies, issued for a limited term such as one, three or five years. The premium varies according to the risk and the length of the term. The cancellation value of this kind of a policy Agreement op Sale. ^' is the proportion of the unexpired term less the brokers' commission assumed to be 15 per cent of the premium. Very often, however, the vendor will throw the policy in without charge, especially if it be a term policy, in which event this clause should read : "All fire insurance policies now on said property are included in the sale." 50. INCUMBRANCE CLAUSE. "The premises are to be conveyed free and clear of all incumbrance." This clause, unless qualified by exceptions, means that the vendor undertakes to pass an absolutely clear title. Any incumbrance, such as mortgage, easement, judgment, building restriction, would, unless removed, be a noncom- pliance with this term. However, if the title is to be taken subject to the incumbrance, the clause will read as follows : "The premises are to be conveyed clear of all in- cumbrance except a first mortgage of $4,000 as above mentioned." The usual clause to convey "free and clear of all incum- brances" not only gives the buyer the right to rescind the contract if incumbrances are discovered which are not re- moved by the seller, but it gives the buyer a right to dam- ages if an incumbrance is discovered after conveyance and payment of the purchase price. {Lehman v. Paxton, 7 Pa. Superior Ct. 259. ) In the above case the incumbrance was a lien which antedated the seller's acquisition of title, and the case therefore goes so far as to hold that a covenant against incumbrance in the contract has a much wider effect than the covenant of special warranty, in the deed. (See section 82.) There seem to be few cases exactly on the point, but under the doctrine of this case the cove- nant in the contract practically amounts to title insurance against incumbrances and can be enforced against the seller at any time an incumbrance is discovered. (See also Dobkin v. Landsberg, 273 Pa. 174.) 48 Conveyancing in Pennsylvania. 51. FIXTURE CLAUSE. "The gas fixtures, heaters, ranges, etc., annexed to said building are included in sale." Fixtures are such articles as are annexed to the freehold. In Pennsylvania the question whether a given article is a fixture or not depends not on the way it is fastened, but upon the intention of the person who attached it. (Bank V. North, 160 Pa. 303 ; Wickes Bros. v. Island Park Assn., 229 Pa. 400 ; Bannerot v. Bcmnerot, 238 Pa. 606. ) Thus gas fixtures, heaters, ranges, may or may not be fixtures according to the intention of the one placing them and it has already been held under certain circumstances that they are not. [Hey sham v. Dettre, 89 Pa. 506.) Conse- quently it is good practice to always insert a clause to the effect that gas fixtures, heaters, ranges, etc., are included in sale. 52. POSSESSION CLAUSE. "Possession is to be given at the time of settlement." The clause as herein set forth means that at the hour of settlement the house will be vacant and possession given to the vendee. If there should be a tenant whose lease does not expire before the settlement a mere assignment of the lease would not satisfy this clause unless the vendee agrees to waive it. If it is desired to take the property subject to an existing lease, it is usually specified as follows : "Possession to be given by assignment of existing lease." 53. APPORTIONMENT OF TAXES, ETC. "Taxes, water rent, rent and interest on incum- brance (if any) to be apportioned for the current term at the date of settlement." Unless this clause be inserted, taxes levied before settle- ment are an incumbrance and as such must be paid by the vendor. (Densmore v. Haggerty, 59 Pa. 189; King v. As- sociation, 106 Pa. 165.) Agreement op Sale. 49 The mode of aportioning taxes, water rent, rent, etc., will be discussed and explained fully hereinafter when we treat with the subject of settlements. It will suffice now to say that under this clause, taxes and water rent and inter- est on mortgages, if any, as well as rent (if the property is occupied by tenant) are apportioned to the date of settle- ment. That is, if the settlement takes place June 30th and the vendor has already paid his taxes for the whole year, it is, of course, plain that he is entitled to a rebate or a return of six months' taxes from the vendee. Strictly speaking rent does not accrue day by day, but comes into existence the day on which it is due and belongs to holder of the legal title on the day it is due. {Singer v. Solomon, 8 Pa. D. R. 402.) It is good practice, therefore, that it be provided in the agreement that the rent is to be apportioned. 54. KIND OF TITLE AGREED UPON. "The title is to be good and marketable and such as will be insured by any title and trust company of Philadelphia at current rates. And the said parties hereby bind themselves, their heirs, executors and ad- ministrators, for the faithful performance of the above agreement within thirty days from the date hereof, said time to be of the essence of this agreement, unless extended by mutual consent in writing endorsed hereon." As has been said heretofore (Marketable Title, section 23), in order to clear up any question that may arise re- specting the title without maintaining an action of law, it is well to insert the above clause, for thus a safe easy test is provided. Of course in sections of the State where there are no title companies the clause need only read, "The title is to be good and marketable, etc.," and the test then is, as set forth hereinbefore in the Section on Marketable Title (Sec. 23), that any title which exposes the holder thereof to the hazard of a law suit is not marketable. 4 50 Conveyancing in Pennsylvania. The time within which settlement must be performed is an important part of the agreement. Unless specifically made so, the particular date of settlement need not be pre- cisely adhered to. Performance within a reasonable time after the date prevents the working of a forfeiture. {Syl- vester V. Boon, 132 Pa. 467. ) But if, as in the agreement above, time is made of the essence of the agreement, no ex- tension is permitted. {Doughty v. Oooney, 266 Pa. 237.) 55. EXECUTION OF AGREEMENT OF SALE: SIG- NATURE BY AGENT. An agreement of sale should be executed, that is, signed by both parties or their agents. But when executed by an agent, he must be authorized in writing to do so, otherwise the agreement is not binding on his principal. {Parish v. Koons, 1 Pars. 78. ) The principal subsequently in writing, however, may ratify this act of his agent. {McClintock v. South Penn Oil Co., 146 Pa. 144.) The delivery of the deed signed by the principal would be such a ratification. This point is important and should be kept in mind by all real estate agents and brokers. An agent cannot execute a binding agreement of sale nor a lease over three years un- less he has authority in writing. If the vendor is married, care should be taken to have both the wife and husband sign, else the contract cannot be specifically enforced. An agent acting for a married ven- dor must have his authority to execute an agreement of sale signed by both husband and wife. A further and more ex- tended treatment of this subject will be found in section 64. 56. ACKNOWLEDGMENT OF AGREEMENTS OF SALE: RECORDING. It is not necessary for an agreement of sale to be ac- knowledged by the parties before a notary public and it is rarely done. Acknowledgment, though, gives the very important advantage to an instrument that it may be re- corded. By recording, constructive notice is given to the Agreement of Sale. 51 world of the agreement to sell. Should the vendor there- after refuse to carry out his agreement and deliver a deed, the vendee's agreement becomes a cloud on the title which prevents the vendor from selling to any one else. This practically enables the vendee to compel the vendor to keep his agreement, without commencing action at law. In this connection, an agreement executed by an agent must be accompanied by a power of attorney showing the agent's authority to sign, or it will not be accepted by the Eecorder of Deeds for record. 57. ASSIGNMENT OF AN AGREEMENT OF SALE. Agreements of sale are assignable. The assignee suc- ceeds to all the rights held by his assignor and can enforce them. The assignment is made by placing on the agree- ment the following: "I hereby transfer and assign all my right, title and interest in and to the within agreement to for the consideration of dollars (| ). Witnesses. Signed (Seal)." In drawing an agreement of sale, an assignment of which is likely to occur, care should be taken to make such action possible under all circumstances. A recent decision has shown at least one set of conditions where it may not be permissible. In DolMn v. Landsberg, 273 Pa. 174, an owner of a piece of real property placed a mortgage thereon. He then entered into an agreement with a purchaser for the sale of the property. The latter thereupon assigned his right under the agreement. The Court, although not deciding the point, intimated that the vendor could not be compelled to convey to any person other than the person with whom he contracted. A grantee of mortgaged property impliedly agrees to indemnify the grantor for any payments the latter may be forced to make on the mortgage, and hence the grantor should be allowed to choose his grantee. (See Chapter on Mortgages, Sec. 52 Conveyancing in Pennsylvania. 141.) It is therefore to the advantage of a purchaser that the agreement should contain a clause reading as follows : "It is hereby expressly agreed that the rights under the within agreement are assignable." This makes the agreement freely transferable without question. 58. LEGAL EFFECT OF AGREEMENT OF SALE. Immediately upon the signing of an enforceable con- tract of sale, the buyer acquires an equitable estate in the land. This estate arises from his right to go into a court of equity and obtain a decree of "specific performance," compelling the seller to convey. The buyer under the con- tract becomes the real owner of the property for nearly every purpose. His interest in the contract is real estate, and descends as such at his death. {Longwell v. Bentley, 23 Pa. 99 at 103.) A judgment against the buyer, entered after the execution of the contract, binds his equitable estate, which can be sold on execution. {Auwerter v. Mathiot, 9 S. & E. 397. ) The lien of the judgment dates from the tirae of its entry, and has priority over liens (except purchase money mortgages) created after the buyer has acquired the legal title. (Stephen's Appeal, 8 W. & S. 186.) When the purchaser gets legal title there need be no revival of the judgment so as to bind the after acquired property, as is true of judgments entered before the execution of the contract. It has been held that a judgment against the buyer which was carried as far as a levy upon growing crops bound the property, even though the seller later got back the property by a judgment in ejectment against the buyer. [Gordon v. Gordon, 45 Pa. Superior Ct. 95. ) The buyer obtains the benefit of any improvements or appreciation and suffers the burden and risk of loss. Thus, if the property is damaged by fire, through no fault of the seller, the buyer can be compelled to pay the full contract price without deduction. (Morgan v. Scott, 26 Pa. 51; Agreement op Sale. 53 Beed v. Lukens, 44 Pa. 200.) He can obtain the benefit of any insurance on the property however. (Imperial Fire Ins. Co. V. Dunham, 117 Pa. 460.) The interest of the seller, on the other hand, is considered for many purposes as a mere chose in action for the pur- chase price. It is personal property, and at his death must be administered as such by his executor or adminis- trator. [Foster v. Harris, 10 Pa. 457.) The seller, of course, continues to have a certain interest in the property as real estate. He holds the legal title as trustee for the purchaser and also as security for the pay- ment of the purchase price. Judgments entered against the seller after the execution of the contract bind what- ever interest the seller has, and the judgment creditor obtains a lien up to the extent of the unpaid purchase price. {McMuUen V. Wenner, IQ S. & U. 18.) If, however, the price has been fully paid or if the right to receive the purchase money has been assigned, there is nothing to which the lien can attach. {McCleary v. Stoup, 32 Pa. Superior Ct. 42.) The seller is subject to the obligations of a trustee, and he cannot purchase an outstanding lien and enforce it against the property. [Dentler's Appeal, 23 Pa. 505. ) As holder of a security title he can maintain an action of ejectment against a purchaser in default. {Thompson v. Carpenter, 4 Pa. 132.) After conveyance, however, there is, in Pennsylvania, no vendor's equitable lien for unpaid purchase money. (Kauffelt v. Bower, 7 S. &R. 64.) A conveyance by the seller to a bona fide purchaser with- out notice of the prior contract, destroys the equitable estate of the purchaser under the contract. If the grantee, however, has notice of the contract he acquires only what the seller had, — a bare legal title held in trust for the prior purchaser. (DilUnger v. Ogden, 244 Pa. 20.) It is possible to record agreements of sale, and such a record is sufficient notice to the world to protect the rights of the purchaser under the contract. In other words, the 54 Conveyancing in Pennsylvania. recorded agreement becomes a cloud upon the title which would usually prevent the vendor from selling to any one else, and which in any event would preserve the purchaser's equitable ownership if the vendor should convey to a third party. Possession by the purchaser (or by his tenant) is also sufficient notice to the world of his equitable owner- ship. {Stonecipher V. Keane, 268 Fa. 5A0.) It should be noted that a bona fide purchaser without notice of a prior agreement takes a clear title for all purposes and can pass a good title to a subsequent grantee who has notice of the agreement. (Filby v. Miller, 25 Pa. 264.) 59. RIGHTS AND REMEDIES UPON BREACH. A refusal by one party to carry out the contract accord- ing to its terms, immediately gives the other party the right to protect himself by legal proceedings. In general he can choose one of two courses that are open to him: he can insist upon performance of the contract by the party in default; or he can rescind the contract and sue for damages. The extent and nature of these rights, how- ever, vary, in different classes of cases, dependent upon whether the contract is written or oral, whether there is fraud on the part of the party in default, and whether there is a provision in the contract for liquidated damages. These various types of cases will be considered in order. 60. WHERE AGREEMENT IS WRITTEN: DEFAULT BY SELLER. In case of a default of a written agreement by the seller, the purchaser may insist upon the performance of the terms of the contract and the Court will compel the seller to go through with them. This is called the remedy of specific performance. {Boris v. Satterthwaite, 180 Pa. 542. ) Or, not caring to force the actual conveyance of the property, he may sue the seller for damages. As to the measure of damages, the Pennsylvania cases have adopted one rule where no fraud is present and Agreement op Sale. 55 another rule where the contrary is true. In the former, they permit the buyer to recover only his actual outlay of "down" money and expenses, and he cannot recover the loss of his bargain. [Dwmfvrs v. Miller, 34 Pa. 319; Mc- Navr V. Compton, 35 Pa. 23; Haney v. Hatfield, 241 Pa. 413. ) In the latter, the buyer may recover, in addition to any payments of purchase price and expenses, the value of his bargain, — namely, the difference between the con- tract price and the market value of the property at the time agreed upon for settlement. {Bartram v. Hering, 18 Pa. Superior Ct. 395 ; Vernan v. Wilson, 31 Pa. Superior Ct. 257. ) It has been held that false statements of value may be fraud in the above legal sense, even though believed by the sellt-r and made innocently by him. {Jack v. Hixon, 23 Pa. Superior Ct. 453.) The measure of damages depends further upon whether the parties have agreed upon a liquidated damage clause. Usually such a clause applies only to breach by the buyer, but it may be worded so as to represent the measure of damages in case of breach of either party. In such case, under the usual form of clause, the buyer can sue for his "down" money and expenses, or he can elect to sue for the sum agreed upon as liquidated damages, but he cannot sue for both. {Orr v. Greimer, 254 Pa. 308.) The liquidated damage clause may be worded so as to be the exclusive remedy and so as to prevent even a suit for specific performance. {Heclcman's Estate, 236 Pa. 193.) The seller is in default when he cannot furnish the kind of title contracted for. Thus a purchaser can refuse to take title when a borough ordinance is discovered which provides for widening a street on which the property abuts. Orayhill v. Buhl, 225 Pa. 417.) And a purchaser can- not be compelled to accept a lot of less width or in a differ- ent condition than that contracted for, even though he had inspected the premises before signing the contract and even though the difference is slight. (Keily v. Saunders, 236 Pa. 593.) If the seller does not have title, the pur- 56 Conveyancing in Pennsylvania. chaser can refuse to take a deed from any other person. (Hopkins v. Phillips, 76 Pa. Superior Ct. 243.) A purchaser, however, is always entitled to demand a conveyance of such title as the vendor has. {Medoff v. Vwndersaal, 271 Pa. 169.) And under certain circum- stances he is allowed to deduct from the purchase price the amount of the loss occasioned by the vendor's breach. Thus the purchaser can always deduct from the purchase price the amount of a judgment, mortgage or other lien, if the contract calls for a conveyance free of all incum- brances. {Burh's Appeal, 75 Fa. 14:1 at 14c5.) And it has been held that a purchaser can demand specific perform- ance with an abatement of the purchase price, when the vendor has title to only a part of the property contracted for. (Erwin v. Myers\, 46 Pa. 96; Napier v. Darlington, 70 Pa. 64.) When the extent of the defect or incum- brance cannot be easily measured there is no right of abatement. The purchaser must either pay the full price or else rescind the contract and sue for damages. Thus a purchaser can elect to take property subject to the dower of the vendor's wife, but cannot have an abatement of the value of her dower. (Reisz's Appeal, 73 Pa. 485; Burkes Appeal, 75 Pa. 141 ; Saler v. Lessy, 76 Pa. Superior Ct. 15.) And there can be no abatement of price representing the outstanding interest of a minor. {Safron v. McBumey, 269 Pa. 392.) 61. WHERE AGREEMENT IS WRITTEN: DEFAULT BY BUYER. If the buyer refuses to carry out a written agreement although the seller is able and willing to perform his part, the latter can enforce the contract by suing for the full purchase price. By a peculiar Pennsylvania practice this is done through an ordinary action at law rather than by a proceeding for specific performance in equity. {Smaltz's Appeal, 99 Pa. 310. ) But equitable principles are applied in such an action. (See Heckmian's Estate, 236 Pa. 193, and Hoover v. Pontz, 271 Pa. 285.) Agreement op Sale. 57 The seller can waive his right to force the buyer to take title and pay the full purchase price, and can elect to sue for damages. The courts allow a seller a much broader measure of damages than they allow a buyer, although no clear reasons are given for the distinction. In addition to any outlay of expenses the seller can obtain the loss of his bargain by reselling the property and suing the buyer for the difference between the contract price and the price of resale. {Bowser v. Cessna^ 62 Pa. 148.) It is essential, however, that the terms and conditions of the resale be equally advantageous with those of the first. {Peffer v. Deakyne, 212 Pa. 181. ) Almost all the cases involve public sales and it has been said that the resale must be a public one, even when the first sale was private. {Clever v. Clever, 38 Pa. Superior Ct. 66. ) But a later case applied the rule when both sales were private. {Qoodritz v. Mc- Mahon, 64 Pa. Superior Ct. 479.) In the presence of the usual liquidated damage clause the seller still retains his right to enforce the contract and obtain judgment for the full amount of the price, disre- garding the mere damages to which he is entitled as an alternative. {Korman v. Tr'fdner, 258 Pa. 362.) He may on the other hand rescind the contract, and sue for the sum which both he and the buyer have determined to be the damage he would suffer, measured in money. {Streeper v. Williams, 48 Pa. 450.) If his contract con- tains an option clause allowing the vendor to retain or recover the amount agreed upon as liquidated damages at his option, he can waive the benefit of this clause and sue for his actual damages if he thinks they are greater. If there is no such option clause, he is usually limited in a suit for damages to the amount agreed upon. The liquidated damage clause may be so worded as to constitute the exclusive remedy and to prevent even a suit for the purchase price in enforcement of the contract. It was so held in Heckman's Estate, 236 Pa. 193, where the 58 Conveyancing in Pennsylvania. liquidated damage clause contained the provision "and all other rights under this agreement shall be at an end." Even in the absence of a clause allowing the seller to retain the deposit money as liquidated damages, the seller, upon default by the buyer, can retain any part of the pur- chase price that has been paid and resell the property. He is not obliged to return any of the purchase price to the buyer even though the resale is in excess of the contract price. (Sanders v. Brock, 230 Pa. 609.) If the purchaser has gone into possession and made im- provements the seller, upon the buyer's default, can get back the land without making compensation for the im- provements. {McCollum V. Shook, 228 Pa. 28.) 62. WHERE THE AGREEMENT IS ORAL. In the absence of any writing neither party can enforce the contract, because of the provisions of the Statute of Frauds. But the courts have held (without assigning any clear reason for the rule) that the Statute does not pre- vent recovery of damages. As to all rights under the con- tract except that of specific performance, an oral contract stands on exactly the same footing as a written one. Thus, whether the contract is oral or written, a purchaser can recover from a seller in default any part of the purchase price paid and expenses incurred on the faith of the con- tract. (Rvneer v. Collins, 156 Pa. 342 ; Stephens v. Barnes, 30 Pa. Superior Ct. 127.) These are all that can be re- covered in absence of fraud. In the event of fraud by the seller, the loss of the bargain can also be recovered. Thompson v. Sheplar, 72 Pa. 160.) Upon breach by the purchaser the seller can resell and recover the difference in the two prices. {Bowser v. Cessna, 62 Pa. 148.) 63. CIRCUMSTANCES UNDER WHICH ORAL CON- TRACTS WILL BE ENFORCED. Although, under the Statute of Frauds, oral agreements for the sale of real estate cannot be specifically enforced, the courts refuse to apply the Statute when the parties Agreement op Sale. 59 have gone so far in part performance of the contract that it would be inequitable to allow either to rescind. To render an oral contract specifically enforceable the Supreme Court has stated the following requirements: "The evidence must establish the fact that possession was taken in pursuance of the contract, at or immediately after the time it was made, the fact that the change of pos- session was notorious, and the fact that it has been ex- clusive, continuous and maintained. And it must show performance by the vendee which could not be compensated in damages and such as would make rescission inequitable and unjust. . . . There must be proof of an expenditure for improvements not reimbursed by profits derived from the occupation of the land and not capable of compensa- tion in damages recoverable in an action for the breach of the contract." {Hwrt v. C{irroll, 85 Pa. 508.) It is necessary that the possession relate exclusively to the contract. Thus where the purchaser was living on the land prior to the contract, there is no such change of possession under the contract as will take the case out of the operation of the Statute of Frauds. CWright v. Nulton, 219 Pa. 253. ) A tenant in common cannot secure specific performance of an oral contract to buy his cotenants' share, even though he takes possession and makes valuable improvements. {Lincoln v. Africa, 228 Pa. 546.) So a tenant under a lease cannot enforce an oral contract of purchase made with his landlord. (Hill v. Meyers, 43 Pa. 170. ) However, if the tenancy is terminated by clear and definite act of the landlord, it is possible for the tenant to continue in such possession as will take the contract out of the Statute of Frauds. {Tressler's Estate, 66 Pa. Supe- rior Ct. 547.) Possession alone is not enough. {Dougan v. Blocker, 24 Pa. 28.) There must be circumstances under which the position of the parties has so changed as to make rescission inequitable. The usual circumstance is the making of valuable improvements by the vendee. {Parry v. Miller, 60 Conveyancing in Pennsylvania. 247 Pa. 45.) If, however, the value of the improvements can be easily compensated in damages, the purchaser is not allowed to retain the land but must be satisfied with damages. {Postlethwait v. Frease, 31 Pa. 472.) Or, where the profits from the land exceed the improvements, the purchaser cannot invoke the doctrine of "part perform- ance." {Mayer's Appeal, 105 Pa. 432.) The courts have sometimes intimated by way of dicta that possession plus payment of all or a substantial amount of the purchase price is sufficient to render an oral con- tract enforceable, but there is no modern case so holding. As set forth in the preceding section a purchaser under an oral contract can recover the amount of the purchase price paid, in a suit for breach of contract, and such a case would seem to fall within the rule that specific per- formance will be decreed only when there cannot be com- pensation in damages. However, if the vendor is insolvent so as to render a judgment for damages worthless, posses- sion plus payment of the purchase price is sufficient to give a right to specific performance. {Jamison v. Dimock, 95 Pa. 52.) Under appropriate circumstances a vendor can specif- ically enforce an oral contract. Thus where a vendee had taken possession and depreciated the value of the property by quarrying operations, the court refused to allow the Statute of Frauds as a defense in a suit by the vendor for the purchase price. {Fays Estate, 213 Pa. 428.) It is essential to show the terms of the contract, as to price, boundaries, etc., by "full, complete, satisfactory and indubitable proof." {Hart v. Carroll, 85 Pa. 508; Sample V. Horlacker, 111 Pa. 247.) A parol gift of land will be sustained when the donee takes possession and makes valuable improvements. {Cald- well V. Caldwell, 24 Pa. Superior Ot. 230. ) 64. HUSBAND OR WIFE NOT SIGNING. When property stands in the single name of either hus- band or wife, both must sign the contract in order to make Agreement op Sale. 61 it completely enforceable. If only the owner signs the contract and the other refuses to sign the deed, the pur- chaser, however, has certain rights, as follows : Wife Refuses to Convey. Where the owner is the hus- band and the wife refuses to sign, the purchaser may have specific performance of the agreement subject to the wife's dower, without abatement of price. ( Corson v. Mulvaney, 49 Pa. 88; Hughes v. Antill, 23 Pa. Superior Ct. 290.) Where the agreement of sale provides for liquidated damages, the buyer may recover these. {Matthews v. Sharp, 99 Pa. 560.) But where no such clause appears and no fraud has been practiced the damages against the selling husband as in the other cases, are limited to the actual outlay. {Christian v. Bitner, 11 Pa. 127.) Husband Refuses to Convey. On the other hand, where the owner is the wife and the husband refuses to convey, the courts do not grant a decree of specific performance. The reason is that it could compel nothing more than the delivery of a deed signed by the wife only, and under the Married Women's Property Act this would be worthless. {McCoy V. Niblick, 228 Pa. 342.) Damages, however, are enforceable here. As in the other cases where no fraud ap- pears, they are limited to expenses actually made or con- tracted for. 65. ANALYSIS OF RIGHTS AND REMEDIES UPON BREACH. I. Written Agreement. A. Default by seller. 1. Specific Performance. a. With abatement of price under cer- tain circumstances. 2. Damages — No liquidated damage clause. a. No Fraud present — Limited to payments of purchase price and expenses. 62 Conveyancing in Pennsylvania. b. Fraud present — Additional right to recover loss of bargain. 3. Liquidated Damage Clause. a. Amount agreed upon can be recovered in lieu of other remedies — not in ad- dition to them. b. Clause may be worded so as to be ex- clusive remedy and bar all other rights, but not usual. B. Default by Buyer. 1. Suit for full purchase price (in nature of specific performance). 2. Damages — No liquidated damage clause. Loss of bargain in addition to outlay of expenses. a. Extent of loss measured by resale under same conditions, and on same terms as first sale. 3. Liquidated Damage Clause. a. Amount agreed upon can be recovered in lieu of other remedies — not in ad- dition to them. b. Usual clause bars right to recover actual damages in excess of liqui- dated amount. c. May be worded so as to be exclusive remedy and bar all other rights. d. Optional clause preserves choice of any remedy. II. Oral Agreement. A. Part Performances by Possession and Improve- ments. All rights the same as under written contracts. B. No Sufficient Part Performance. 1. No specific performance by either party. 2. All other rights the same as under written contracts. Agbebment of Sale. 63 III. Where Husband and Wife Have Not Both Signed Contract. A. Title in Husband— Wife Eefuses to Sign Deed. 1. Buyer cannot be compelled to take. 2. Buyer can elect to take subject to wife's dower, a. No abatement of purchase price. 3. Buyer can elect to sue seller for damages. B. Title in Wife — Husband Eefuses to Sign Deed. 1. No election to take specific performance since wife's deed wholly void. 2. Buyer can recover damages from wife. 66. EXTINCTION OF AGREEMENT. (a.) Merger. — An agreement of sale may be extin- guished first by deed being made and delivered by the vendor to the vendee in which event it is said to be merged into the deed. That is, the deed takes the place of the agreement of sale. The general rule is that the deed exe- cuted, delivered and accepted is taken to be the ultimate intent of the parties and prevails over an inconsistent pro- vision of a prior agreement. This rule has certain excep- tions, as, for example, the doctrine that the covenant against incumbrances in the contract survives the deed and is broader in its scope than the covenant of special war- ranty in the deed. (See Sec. 50.) (ft.) Cancellation or Recision Tjy Parties. — If the parties to the agreement mutually agree that it be cancelled, abro- gated or avoided this of course extinguishes the agreement of sale. The agreement to rescind the agreement of sale need not be in writing, but for sake of safety and con- venience of proof it is much better to have it done in writ- ing. (McClure v. Jones, 121 Pa. 550.) 67. SUGGESTIONS IN DRAWING AGREEMENTS OF SALE. The condition of the property purchased will of course suggest additional clauses which may be inserted for the 64 Conveyancing in Pennsylvania. better protection of either of the parties. The following are some suggestions as to points to observe in drawing agreements of sale : 1. If the property about to be purchased is not vacant, specify when and how possession is to be given. 2. If the vendee is to have possession before settlement have him sign a lease containing the usual ejectment clause (see form 46, page 523), for the period to the time of settle- ment. This will protect the vendor in case the settlement is not completed and the vendee refuses to move out. The ejectment clause in a lease provides a speedy method of ejecting a recalcitrant tenant and saves delay and expense of the ordinary proceeding at law. 3. See that the agreement provides that taxes, water rent and house rent are to be apportioned at the settlement. By local custom {Moore v. Twylor, 29 W. N. C. 495), in Philadelphia, this is always done, but outside of Phila delphia not unless specified. Taxes levied and unpaid are really an incumbrance and must be removed by the grantor unless the agreement provides that they should be appor- tioned. (King v. Association, 106 Pa. 165.) Eent is held not to accrue day by day but to spring into existence the day it is due ; hence, when a month's rent is paid in advance to the grantor he is entitled to the whole of it even if the settlement be the next day, unless the agreement pro- vides that it is to be apportioned. {Singer v. Solomon, 8 Pa. Dist. R. 402, but see Johnson v. Smith, 3 P. & W. 496. ) 4. It is well to provide also that municipal improve- ments or work done in or about the property by the city which might be a lien on the property, made between the date of the agreement of sale and settlement must be paid for by the vendee, otherwise the vendor might be forced to bear the expense. For this suggestion the author is in- debted to a prominent member of the bar who related a circumstance in which a rather shrewd vendee after the purchase of a property filed a complaint through a third party with the city where premises in question were not Ageeement op Sale. 65 under-drained, the city caused the work to be done and at the settlement the vendee maintained that the city claim was an incumbrance which the grantor was bound to re- move. 5. Fixtures attached pass with the freehold. Not the manner of annexation but the intention determines the question whether a given chattel has or has not become a fixture. (National Bank of Catasauqua v. North, 160 Pa. 303.) It is a vexed question which can and should be avoided in the agreement of sale. Specify therefore in the agreement of sale that all gas fixtures, heater, range, etc., are included in the sale. Much litigation can be avoided by taking the little additional time required to enumerate what fixtures ornamental or otherwise are included. 6. When purchasing a property occupied by a tenant examine the property and determine what fixtures the tenant placed in the property and what he claims the right to remove. (McKay v. Meyer Co., 44 Pa. Superior Ct. 293. ) Do this especially where the premises about to be pur- chased is a store, for great liberality is shown the tenant in the matter of trade fixtures. (William's Landlord and Tenant, 2d Ed., p. 52 ; Lindsay v. Curtis, 236 Pa. 229. ) 7. Ascertain the amount and expiration date of exist- ing fire insurance policy. If the amount is inadequate, or if the policy is to expire before settlement, the purchaser should immediately take out new insurance since he is con- sidered as the owner, and all risk of loss is on him. 8. It is usually better for the buyer to order new fire insurance and allow the seller to cancel the old policy, rather than apportion the premium and take an assignment of the old policy. At most settlements the insurance policy is not produced (usually because it is in the possession of a mortgagee) and it saves delay and inconvenience to have a new policy. If the seller is willing to throw in the old policy free of charge, the situation is different and the saving to the purchaser would usually be worth the pos- sible delay and inconvenience of an assignment. 5 66 Conveyancing in Pennsylvania. 9. It is sometimes advisable to expressly stipulate that the costs of title insurance and conveyancing are to be borne by the buyer. It is customary in Pennsylvania for the buyer to bear these charges and this custom would usually be implied in the contract. In most States, how- ever, the seller pays these charges, and it is well to ex- pressly provide as to which party shall pay them, if there is likely to be any question about it. 10. The purchaser should secure as detailed a descrip- tion as possible, in order to be protected if the property actually owned by the seller does not conform to the original understanding of the parties. On the other hand, it is in the interest of the seller to have the description in very general terms. 11. If the property is sold subject to a mortgage, it is better to mention the full value of the property as the consideration and later refer to the amount of the mort- gage as constituting part of the purchase price. This avoids any later dispute as to the actual consideration. It has the additional advantage from the standpoint of the real estate agent, in making entirely clear the amount upon which his commission is based. 12. If there is a liquidated damage clause it is to the advantage of the seller to insert the phrase "to be retained as liquidated damages at the option of" the seller. He then has a choice of any remedy, in case of default by the buyer. On the other hand, it is to the advantage of the buyer to insert the phrase "and all other rights under this contract shall cease." This restricts the seller to the sum agreed upon as liquidated damages in case of the buyer's default, and prevents the seller from suing for specific perform- ance or for damages in excess of the liquidated amount. 13. In the incumbrance clause, it is to the advantage of the seller to except restrictions in the line of title, ease- ments and any existing mortgage. Agreement of Sale. 67 14. It should be specified that title is to be such as will be insured by a Title Company at regular rates. Then, if a cloud upon the title appears and requires a special rate the burden is on the seller (where it ought to be) to pay the additional premium. 15. Where possession is to be given by lease the agree- ment should call for a "written lease." CHAPTER VI. Deeds. Section Page 68. History of Conveyancing 68 69. What is a Deed; Seal.. 70 70. Kinds of Deeds. Deed Poll. Indenture 71 71. Requisites of a Deed.... 72 72. Component Parts of a Deed 72 73. Meaning of Parts. Date 74 74. Names of Parties 74 75. Consideration 75 76. Granting Clause 76 77. Description 77 78. The Recital 78 79. Incumbrance Clause "Un- der and Subject" 78 80. Appurtenance Clause. End of Premises 79 81. Habendum Clause 81 82. Covenants 82 83. Conclusion of Deed 85 84. Short Form of Deed Under Act of April 1, 1909 86 85. Execution of Deeds. Read- ing 87 Section Page 86. Signing 87 87. Sealing 88 88. Attestation 89 89. Delivery of Deed 89 90. Delivery in Escrow 91 91. Alteration or Destruction of Deeds 92 92. Acknowledgment 92 93. Separate Acknowledg- ments of Married Women Not Necessary in Pennsylvania 93 94. What a Valid Certificate o f Acknowledgment Must Contain 94 95. By Whom Acknowledg- ment May Be Taken. . 96. Notary Public. How to Become One 97. Probate of Deeds Where Grantor is Dead or Unable to Appear. 98. Estoppel by Deed.... 95 96 98 98 68. HISTORY OF CONVEYANCING. A proper understanding of a modern deed and its lan- guage must include a brief study of the early English law of conveyancing upon which a modern deed is based. In the beginnings of the Feudal system it was impossible for a man to convey his land without the consent of the lord under whom he held the land. Later, it became pos- sible to make conveyance by paying a sum of money called 68 Deeds. 69 a "fine" to the over-lord, and finally these fines were abol- ished by Statute. These early conveyances, called "feoffments," required no writing. They were entirely oral and took place on the premises. The existing owner would hand to the pro- spective owner a clod of turf or a twig or a key with the words, "I hereby enfeoff thee and thy heirs forever." The transaction was called "livery of seisin," that is, delivery of possession. Even though a writing was not necessary, it later became a common practice to give a deed of feoff- ment as permanent evidence of the conveyance. Since the deed was merely evidence and title had already passed, the past tense was used : "I have given and granted." The practice in modern deeds of using the past tense as well as the present tense is a useless and inconsistent relic of this old custom. It was not until the Statute of Frauds, passed in 1677 in England, and in 1772 in Pennsylvania, that all Con- veyances of land were required to be in writing. This method of conveyancing by feoffment gave way almost entirely to a so-called method of conveyancing by "bargain and sale." This latter method has been in use since the 15th century and forms the chief basis of the modern deed. It is a method that for a long time was recognized only in courts of equity and was based upon the custom of holding lands to "uses," — that is, in trust. The large amount of land held by religious corporations and the conflict between Church and State led to the passing of a series of laws prohibiting the holding of land by such corporations, — known as "Statutes of Mortmain." The Clergy then invented the method of having title in some individual for the use or benefit of the Church. This beneficial interest of the Church was recognized in courts of equity which were controlled by the clergy, and there arose the so-called equitable ownership of land. This cus- tom of having land held in use or trust became very pop- ular among all classes of people since the equitable 70 Conveyancing in Pennsylvania. ownership could be held, transferred and inherited with- out the rigid requirements of common law conveyancing. The so-called deed of bargain and sale arose in the follow- ing way. When real estate was sold and the purchaser had paid his money, a court of equity considered the former owner merely as trustee for the purchaser. The trans- action under which the purchaser acquired this equitable ownership was known as a "bargain and sale" and the deed evidencing the transaction was called a deed of bargain and sale. In 1535 there was passed the Statute of Uses, in- tended to abolish the holding and transfer of equitable estates. It provided that anyone holding or receiving an equitable title should immediately become vested with the legal title. This statute wholly failed in its purpose of abolishing trusts and equitable ownership because of the interpretation put upon it by the courts, but it did have a fundamental influence upon conveyancing. The deed of bargain and sale which formerly created only an equitable title in the purchaser now gave him a complete legal title. Conveyancing in Pennsylvania depends cjiiefly upon the Act of May 28, 1715, Sec. 5, 1 Sm. 95, which provides that all deeds and conveyances, duly acknowledged and re- corded shall be of the same force and effect as deeds of feoffment with livery of seisin or deeds of bargain and sale. (Eckman v. Eckman, 68 Pa. 460.) 69. WHAT IS A DEED. SEAL. A deed, technically speaking, is any writing sealed and delivered by the parties. (Michell on Real Estate and Con- veyancing, 402.) Because "deeds" are commonly used in conveying title to real estate, it is quite a popular error to suppose that a deed is an instrument limited to that use only. The distinguishing feature about a deed is that the writing is under seal. It is therefore considered in law to be a solemn instrument. The seal imports solemnity. In the early days a wax seal was required and everyone Deeds. "^1 had Ms own peculiar device or mark for a seal. Nowadays, the old time wax seal has been dispensed with and is no longer required. Any mark placed after the signature of a person intended to be a seal is so considered. {Hacker's Appeal, 121 Pa. 192.) Usually a seal is now represented by the word (seal) in brackets or the letters (L. S.). These letters stand for the Latin phrase "locus siguli," meaning "place of seal." In most legal documents it is printed at the end of the line. Anyone signing opposite the printed seal is presumed in law to have adopted the printed seal as his own. {Lorah v. Nissley^, 156 Pa. 329.) If therefore any instrument in writing under seal is a deed, it follows, legally speaking, that bonds, leases, mort- gages, etc., which are usually under seal are deeds, and therefore to be exact, deeds to convey property should be termed deeds of conveyance. The word deed however has been so consistently used, not only by laymen, but even by the bar that it has come to have a fixed meaning in the minds of the public, and we will therefore not hesitate to refer to a deed of conveyance simply as a deed. 70. KINDS OF DEEDS. INDENTURE. DEED POLL. That fountain head of legal definitions, Blackstone (2 Blk. p. 296) very clearly explains the difference between a deed poll and an indenture. These terms are entirely historical in their meaning. An indenture was the ap- propriate name of a deed to which there were two or more parties as distinguished from a deed poll which was made by one person. An indenture derives its name from the in- dentation which always appeared on a deed made between two or more parties. Formerly deeds between two parties were written as two copies or counterparts on the same sheet of paper or parchment signed by both grantor and grantee ; between the two counterparts some words or let- ters of the alphabet were written. The copies were then separated by a wave-like or indented line cut through these words or letters. Each party to the deed received one copy. 72 Conveyancing in Pennsylvania. In case of dispute arising as to the authenticity of either counterpart they could be fitted together and the question of genuineness definitely settled. From the indented cut came the name indenture. The term "indenture" is still applied to the ordinary form of deed, although only the grantor signs. A deed poll derives its name from the fact that it was "polled," or cut with even edges. The formal difference between the two kinds of deeds to-day are as follows: A deed poll begins "Know all men by these presents"; an indenture begins "Now this Indenture . . . witnesseth." A deed poll is usually in the first person and an indenture in the third person. The date appears at the end of a deed poll and at the beginning of an indenture. It is possible to use a deed poll as a form of conveyance, and sheriffs' deeds are usually in this form. 71. REQUISITES OF A DEED. Although writing, seal and delivery are the distinguish- ing characteristics of a deed, it can be said that a cus- tomary deed of conveyance of real estate has seven requisities. (1) Sufficient words in writing or printing. (2) Proper parties. (3) A consideration. (4) A thing to be granted. ( 5 ) Execution, i. e., signing, sealing, at- testation and acknowledgment. (6) Delivery and accept- ance. (7) Eecording. As will appear later, some of these are not essential to a valid conveyance, although usually present in actual practice. These requisites of a deed will be considered in detail under the following sections in which the various parts of a deed are taken up in order. (For usual form of deed, see Appendix, Form 21, page 460. ) 72. COMPONENT PARTS OF A DEED. The usual form of deed differs but little from that which has been in use for two or three centuries. Much of the language is obsolete in its meaning and most of the States, including Pennsylvaniafi have adopted by Statute an ap- Deeds. '^^ proved short form of deed of which we will treat here- after. But there is this to be said in favor of the old form ; every clause and word has had years of legal interpretation and has acquired an exact and accepted meaning. Further- more, short forms vary in different States, but the common law form is universal. As a matter of practice the old form is still used almost exclusively, since many Title Companies refuse to insure any other form. Under early English law the usual form of deed included the following parts : (1) Premises. (2) Habendum. (3) Tenendum. (4) Keddendum. (5) Conditions. (6) Covenants. The significance of these various parts is largely historical and has little practical value to-day, al- though some of the terms are still in use. 1. The Premises contains all that precedes the Haben- dum and includes: (a) Date. (b) Names of Parties. ( c ) Consideration. (d) Granting Clause. (e) Description. (f) Eecitals. (g) Incumbrance Clause, (h) Appurtenance Clause. 2. Habendum. This is the clause, beginning "To have and to hold." Its purpose is to describe the quantum of the estate, as, — life estate, estate in fee, estate by en- tireties, etc. 3. Tenendum. This is now combined with the Haben- dum (Habendum — "to have," and Tenendum, "to hold"), although in the early deeds it was a separate clause. Its purpose, under the feudal system, was to show the kind of tenure by which the land was held. It has no modern function. 4. Reddendum. This is now largely obsolete except in ground rent deeds. It is the clause by which the grantor reserved something in himself. In modern ground rent 74 Conveyancing in Pennsylvania. deeds the clause is more commonly known as the "Reserva- tion." (See Sec. 152.) 5. Conditions. (See Sec. 12.) The most common con- ditional clause is the defeasance clause in a mortgage. Building restrictions are usually put in the form of a condition. 6. Covenants. A covenant is a writing under seal wherein a party stipulates the truth of certain facts, or promises to perform some future act. 7. Conclusion. (a) Execution Clause. (b) Receipt. (c) Acknowledgment. 73. MEANING OF PARTS: DATE. A deed takes effect only at the time of delivery. It is presumed that the date mentioned in the deed is the date of delivery. But it is not essential to the validity of a deed that a date be inserted since the date of delivery can be shown by oral evidence. If the date mentioned in the deed is not the date of actual delivery, the true date can be shown by oral evidence. {Park v. Neeley, 90 Pa. 52; Cutter V. Pierson, 26 Pa. Superior Ct. 10.) 74. NAMES OF PARTIES. Following the date comes the names of the parties, their professions and city in which they live. Care should be taken to insert the correct names of the parties and if they have middle initials insert them. In this way may be avoided the possible expense of correcting the deed or estab- lishing identity. It is good practice to insert the profes- sion following the names. It is to be regretted that this old custom has lately fallen in disuse. It had many advantages, chief among them being its aid in fixing the identity of the individual against whom a title search was being made. E.g., John Smith, Blacksmith, distinguished him from the hosts of other John Smiths appearing of record, in a Deeds. '^^ way that would leave no doubt on the mind of the person making the title search that he was the one sought. Of like advantage is the adding the name of the city and state in which the grantor or grantee resides, and this is usually done. 75. CONSIDERATION. "That the said grantor, Andrew Black, for and in consideration of one dollar (|1.00) lawful money of the United States unto him well and truly paid by the said grantee at or before the sealing or delivery hereof, the receipt whereof is hereby acknowledged." It is often said that a deed must be supported by con- sideration. This is true of the old deed of bargain and sale, since the payment of purchase money was necessary in order to create an equitable ownership in the grantee, which under the Statute of Uses became a complete legal ownership. A modern deed in Pennsylvania, however, if recorded, is valid without any consideration, owing to the Act of 1715, which makes any deed properly acknowledged and recorded of the same effect as an old common law deed of feoffment. No consideration was necessary in a deed of feoffment. {Eckman v. Eckman, 68 Pa. 460.) Another reason why no consideration is necessary is the fact that a deed is under seal, and it is held (even in contracts that usually require consideration), that an instrument under seal requires no consideration. It is entirely possible for an owner of land to make a pure gift of it. Another common example of a deed without consideration is a deed from a trustee to a succeeding trustee. It is the universal custom, however, as a relic of the old deed of bargain and sale, to state in a deed a consideration of one dollar, even though no money at all passes, or even though thousands of dollars may pass. The actual con- sideration is usually not stated to prevent this private information becoming public property when placed on record. 76 Conveyancing in Pennsylvania. The consideration as stated is not binding, and if the grantee refuses to pay, the grantor can show by oral evi- dence what the real consideration was. {Edmundson's Estate, 259 Pa. 429.) Even though the grantor acknowledges in the deed re- ceipt of the full consideration, he is not bound by such an acknowledgment, and can show by oral evidence that he did not receive the money. {McPherran's Estate, 212 Pa. 425.) This is because of the usual rule that a receipt is not a contract, but merely evidence of a fact, which can be contradicted by contrary evidence that is more convincing. A deed without consideration is considered as a fraud upon existing creditors and may be avoided by them. {Saunders v. Wiagonseller, 19 Pa. 248; Isett v. Maclay, 265 Pa. 165.) 76. GRANTING CLAUSE. "Hath granted, bargained and sold, aliened, enfe- offed, released and confirmed and by these presents doth grant, bargain and sell, alien, enfeoff, release and confirm unto the said grantee his heirs and assigns.'' These M^ords are sometimes called the "operative words," and in printed form of deeds, usually precede the descrip- tion, but may be inserted anywhere. While these words are always printed in the deed, their strict necessity is no longer required, and they may be dispensed with, provided words indicating an intention to convey are used. {Auman V. Auman, 21 Pa. 343 ; Riggs v. New Castle, 229 Pa. 490. ) A mere assignment endorsed on the back of a prior deed has been held sufficient to pass title to the premises de- scribed in the deed. {Babcock v. Day,, 104 Pa. 4.) In Pennsylvania the Act of April 1, 1909, Sec. 1, P. L. 91, provides that the words grant and convey, or either one of them, shall be sufficient to pass a fee simple title, if the grantor has such a title. The last three words, "his heirs and assigns," are known as words of limitation because they limit or denote the Deeds. 77 quantity of the estate intended to be conveyed. To pass a fee simple estate the word "heirs" was essential at com- mon law, and without the addition of such word the grantee took but a life estate. {Brown v. Mattocks, 103 Pa. 16.) The words "heirs" is no longer necessary to pass a fee since the above mentioned Act of 1909, Sec. 2, provides that a deed shall be construed as including all the estate and interest of the grantor, unless some other intention is expressly mentioned. It is customary, however, to adhere to the old form. If the grantee is a corporation, the proper words are "its successors and assigns." 77. DESCRIPTION. "All that certain lot or piece of ground with the messuage or tenement thereon erected, situate on the west side of Y Street at the distance of three hundred and thirty-seven feet (337') northward from the north side of V Street in the Fiftieth Ward of the City of Philadelphia, containing in front or breadth on said Y Street eighteen feet (18') and extending of that width in length or depth westward between two parallel lines at right angles with said X Street one hundred feet (IOC) to a certain three-feet wide alley extending north from X Street to Z Street." This part of the deed is called the description and is, of course, to be inserted into the deed by the conveyancer. The object of the description in a deed is to identify the land to be conveyed, and no deed will be operative which does not contain a description sufQcient for such identifi- cation. {Negley V. Lindsay, 67 Fa. 217). The description, while it must be clear, need not necessarily be technically accurate, but must be sufficiently precise to enable the sur- veyor to locate it. Should the deed contain a reference to some other paper which describes the property it will be sufficient. {Armstrong v. Boyd, 3 P. & W. 458.) For this reason the recital is always placed in a deed. The reference therein to the prior deed insures against any possible mis- take in the description. 78 Conveyancing in Pbnnsylvanu. 78. THE RECITAL. "Being the same premises which Edward Frame and wife by indenture bearing date the fifth day of July, A. D. 1910, and recorded in the office for the recording of deeds in and for the City and County of Philadelphia in Deed Book W. S. V. 1196, page 213, etc., granted and conveyed unto Andrew Black in fee." This clause, known as the recital, is not a necessary part of the deed, although it is of value in indicating the source of the title and in fixing the description of the land. It ought, therefore, always be inserted in the deed. Its usual place is immediately following the description. Where the recital and operative part of the deed conflict the operative part prevails if certain and definite. If indefinite the re- cital may be used to explain it. 79. INCUMBRANCE CLAUSE. UNDER AND SUB- JECT. "Under and subject nevertheless to the payment of a certain mortgage debt or principal sum of thirty- five hundred dollars (|3,500.00) with interest thereon as the same may become due and payable." This under and subject clause may be placed either in the premises immediately following the recital or in the haben- dum immediately after the "to have and hold" clause. In the deed form set forth on page 460 we have placed it in the premises and referred to it again in the habendum, which is quite a common method. For the legal effect of this clause as to the relative rights and obligations between grantor, grantee and mortgagee, see the chapter on Mortgages, sec- tions 137 to 141. Of course, should there be no mortgage which is to re- main on the property, the clause is omitted unless there be certain building restrictions, in which case the clause would read : "Under and subject nevertheless to certain express conditions and restrictions as appear of record in Deed Book W. M. G. 322, page 34, etc." Deeds. "79 This is the usual method of drawing this clause, although the far better practice is to actually recite the restrictions if not too bulky, e. g. : "Under and subject nevertheless to the express con- ditions and restrictions that said premises shall not, within the period of five years from the date hereof be sold to or occupied by any person other than of Caucasian race, and that, within said period the said premises shall not be used as an undertaking estab- lishment, nor for the carrying on of any business re- quiring the use of machinery run otherwise than by human power, and that the porches upon said struc- ture erected on the said lot shall be maintained free of any enclosure or obstruction which might prevent the free and common enjoyment of air, light and view by all of the owners, tenants and occupiers of struc- tures upon any of the lots which may front on the said Y Street between X Street and Z Street." 80. APPURTENANCE CLAUSE. END OF PREMISES. "Together with all and singular the buildings, im- provements, ways, streets, alleys, passages, waters, water-courses, rights, liberties, privileges, heredita- ments and appurtenances whatsoever unto the hereby granted premises belonging, or, in anywise appertain- ing and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim, and demand whatsoever of him, the said grantor, as well at law as in equity of, in and to the same." In connection with the question of appurtenances it is necessary to distinguish between cases where the grantor conveys an entire tract of ground and cases where he con- veys only part of a tract, retaining an adjacent part. In the former case, the question is a simple one. All ease- ments, rights, and incidents belonging to the land pass under the general word "appurtenances" without any ex- 80 Conveyancing in Pennsylvania. plicit reference. {Pickering v. Stapler, 5 S. & R. 106.) And they also would pass to the grantee even without the word "appurtenances," since the grant of the land carries with it everything belonging to the land. This was prob- ably true at common law (Shep. Touch. 89; Mitchell, p. 429), and is noAV established by the Act of 1909, P. L. 91, Sec. 2. Where the grantor conveys a part and retains an ad- jacent part, difficult questions often arise as to easements over one part and in favor of the other part. For example, the part conveyed may be cut off from a road so as to re- quire a right of way over the tract retained by the grantor. Or, to put the contrary case, the tract retained by the grantor may require a right of way over the tract conveyed to the grantee. The best and safest practice is explicitly to mention in the deed the easements that are granted to the grantee, and those that are reserved by the grantor. If this is not done the law will imply, either a grant or a res- ervation, as the case may be, under certain circumstances. To give rise to an implied grant or reservation it is neces- sary that the one tract shall be subject to the burden of an open, visible easement in favor of the other tract, and that this easement be necessary to the reasonable enjoyment of the property. Thus, where the owner of two lots built on one of them a house, the cornice of which projected over the other, and then sold the improved lot, it was held that the purchaser acquired an implied grant of an easement to maintain the overhanging cornice. ( Ch-ace Church v. Dob- bins, 153 Pa. 294. ) Conversely, where the tract conveyed is subject to the burden of a right-of-way for the benefit of the tract retained, it is held that there is an implied reservation by the grantor of the easement. {Ornisby v. Pinkerton, 159 Pa. 458. ) Things that are not necessary, but only con- venient, for the use of the property, cannot be the subject of an implied grant or reservation. (Messer v. Rhodes, 3 Brewst. 180.) Deeds. 81 Another example of implied easement is where the grantor describes the land as bounded by a street or alley which is not yet laid out. The grantee acquires an implied easement over the way described. {Trutt v. Spotts, 87 Pa. 339.) If the grantor wishes to reserve an easement the follow- ing language can be used : "Excepting and reserving unto the said grantor, his heirs and assigns, full and free right and liberty at all times hereafter, in common with all other per- sons who may hereafter have the like right, to use a passageway ( describing it ) for all purposes connected with the use and occupation of said grantor's other lands and houses adjoining the same." The legal maxim "that what is appurtenant to a piece of land is appurtenant to every part thereof" is well to be re- membered, for if a right-of-way be granted as an appurte- nance to a tract of land, later, if that tract be divided into smaller lots, each of the grantees of the subdivisions will be entitled to the same right-of-way which may have been intended only for the convenience of the single owner of the undivided tract. {Ermentrout v. Stitzel, 170 Pa. 540; Seidler v. Wain, 266 Pa. 361.) 81. HABENDUM CLAUSE. "To have and to hold the said lots or pieces of ground above described with the messuage or tenement thereon erected, hereditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto said grantee, his heirs and assigns, to and for the only proper use and behoof of the said grantee, his heirs and assigns forever." The purpose of this clause is to determine what estate passes. In the clause above set forth it provides that the grantee shall have and hold an estate in fee. The haben- dum and tenendum clause may be used to explain the prem- ises of the deed and perhaps qualify it. [Bedford Lodge v. 6 82 Conveyancing in Pennsylvania. Lents, 194 Pa. 399. ) But if it be repugnant or hopelessly contradictory to the premises, it will be rejected. {Karch- ner v. Hoy, 151 Pa. 383. ) The office of the habendum and tenendum may be and sometimes is performed in the prem- ises in which case the habendum is not really necessary; however, it usually appears as a printed part in all forms of deeds. 82. COVENANTS. "And the said grantor, Andrew Black, for himself, his heirs, executors and administrators, doth covenant, promise and agree to and with the said grantee, his heirs and assigns, by these presents that he the said grantor, Andrew Black, and his heirs, all and singular the hereditaments and premises hereby granted or mentioned and intended so to be with appurtenances unto the said grantee, his heirs and assigns, against him the said grantor, Andrew Black, and his heirs and against all and every person and persons whoso- ever lawfully claiming or to claim the same or any part thereof by, from or under him, them or any of them shall and will under and subject as aforesaid warrant and forever defend." A covenant is a writing under seal wherein a party stipu- lates the truth of certain facts or promises to perform some future act. In the old deed of real estate there were several customary covenants dealing with the title, in which the grantor stated that he had a good title, that he had a right to convey, that there were no encumbrances, and that he would protect the grantor against any adverse claim of title, etc. These are all obsolete, excepting the last, and it is sufficient merely to mention them: 1. For seisin, 2. Power to convey, 3. For quiet enjoyment, 4. Against in- cumbrances, 5. For further assurance, 6. Warranty. The covenant of warranty is the only covenant of title that is ordinarily found in modern conveyancing. It had its origin (Fallon on Conveyancing, p. 191) in the fact Deeds. 83 that in the early history of England, conveyances were chiefly made from a superior to an inferior, as from a baron to his retainer or from a father to his daughter upon mar- riage. No examination of the grantor's title was deemed necessary, for the grantee relied solely upon the grantor's covenant to defend his (the grantee's) title. The modern covenant is of two kinds : General Warranty arid Special Warranty. A general vyarranty is a promise on the part of the grantor to defend the grantee's title against all mankind. It amounts to an insurance of title and is very rarely used. A grantee cannot demand such a warranty unless expressly provided for in the agreement of sale. A special warranty is the clause customarily used in con- veyancing. It protects the grantee only against claims made by the grantor or anyone claiming under the grantor. This covenant had a very real value before our recording system and before the days of Title Insurance, since the grantee relied upon this personal covenant to hold the grantor responsible in damages if the grantee suffered loss by reason of any claim arising under the grantor, as, for example, a mortgage placed on the property by the grantor and not disclosed to the grantee. It was only a limited protection however, since defects in the title prior to the grantor, were not covered. In modern times, covenants of warranty have lost most of their original importance, owing to the development of our recording system and the possibility of securing Title Insurance. The grantee can examine the title for himself and ascertain its validity, and (as usually happens) he can secure insurance that protects him against a bad or imper- fect title. It should be remembered, however, that if the agreement of sale contains an unqualified promise to convey clear of incumbrances, this promise survives the delivery of deed and can be made the basis of an action for damages against the grantor if incumbrances are later discovered. The promise is held to cover any incumbrance whether 84 Conveyancing in Pennsylvania. created by the grantor or by his predecessors in title. It is thus much wider than the special warranty in the deed. {Lehman v. Paxton, 7 Pa. Superior Ct. 259; see Sec. 50.) Covenants are not limited to matters of title but may include any kind of promise, and may be made by either party. Sometimes the covenant is made by the grantee, in which case the grantee should also sign the deed. Among such covenants may be mentioned the following: To pay rent, to pay a royalty, to lay out a railroad or make improve- ments. Building restrictions are sometimes drawn in the form of a covenant. Implied Covenants. These are such as the law infers from certain language or acts of the parties. The most usual example of an implied covenant in Pennsylvania is found in the Act of May 28, 1715, which provides that in all recorded deeds, the words "grant, bargain and sell" shall be construed as a covenant by the grantor that he had an in- defeasible estate in fee simple, free from incumbrances created by the grantor, and for quiet enjoyment by the grantee his heirs and assigns, etc. The language seems broad enough to amount to a general warranty of an inde- feasible title, but the courts have limited the act to a special warranty only. (Knepper v. Kurtz, 58 Pa. 480.) Another example of an implied covenant is where a grantor describes a lot as bounded by a street which is laid out over his own land. In such a case there is an implied covenant that the grantee has a right of way over the street. Enforcement of Covenants. A covenant is a personal obligation and upon a breach gives rise to a cause of action for damages. In addition, equity will sometimes enjoin a threatened breach, as in the case of building restrictions. Most covenants run with the land, i. e., they are binding upon the heirs and assigns of the covenantor and are for the benefit of the heirs and assigns of the covenantee. When a covenant has been broken, however, and a cause of action for damages has arisen, the obligation and the cor- relative right crystallize and no longer "run with the land." Deeds. 85 The person breaking the covenant (whether the original covenantor or his heirs or assigns) is liable in damages for a personal debt, which binds him and his administrator or executor, but does not bind his heirs or assigns of the land. Likewise, the person having the benefit of the covenant (whether the original covenantee or his heir or assign) be- comes the owner of a cause of action which does not pass to his heirs or assigns of the land in question. {Dailey v. Beck, i ClsLvk 58.) 83. CONCLUSION OF DEED. (a.) Execution Clause or Testimonium. "In witness whereof the parties have hereunto inter- changeably set their hands and seals. Dated the day and year first above written. Sealed and delivered in the presence of us : [Seal.] [Seal.]" It will be observed that the Indenture Deed from which the above clause is an extract retains the word interchange- ably from the old form of indenture when it was customary for the grantee to sign. This the grantee no longer does, although the form persists. A deed poll omits, of course, the word interchangeably and is dated at the end instead of at the top. (5.) Receipt. — Following the testimonium or execution clause is usually found a receipt in the following form : "Received on the day of the date of the above inden- ture of the above-named grantee the full consideration money hereinbefore mentioned." This is signed by the grantor also, although it is unneces- sary where the consideration is only nominal. It should be noted that the receipt is not conclusive, but can be rebutted by evidence that the grantor did not ac- 86 Conveyancing in Pennsylvania. tually receive the money. {McPhern/m's Estate, 212 Pa. 425.) (c.) Acknowledgment Clause (see Act of April 1, 1909, sections, P. L. 91). "On the 7th day of July, Anno Domini one thou- sand nine hundred and twenty-two (1922) before me the subscriber, a notary public for the Commonwealth of Pennsylvania, residing in the City of Philadelphia, personally appeared the above-named B. M., and in due form of law acknowledged the above indenture to be his act and deed and desired the same might be recorded as such. "Witness my hand and notarial seal the day and year aforesaid." Notary Public. This is to be signed by the notary public or offlcer au- thorized by law to take acknowledgments. The execution of acknowledgments and execution of deeds will be con- sidered more in detail in later sections. 84. SHORT FORM OF DEED UNDER ACT OF APRIL 1, 1909. The reader by this time has probably reached the conclu- sion that there is much in the form of deed just examined and analyzed that could without loss be omitted. And it is doubtless true that much of the verbiage could be elimi- nated for it is merely a survival of the times when the scrivener or the conveyancer was paid by the number of words written; when mere prolixity had its own reward. It is not to be wondered, therefore, that many jurisdictions have by legislation provided for a short form of deed. In Pennsylvania by the Act of April 1, 1909 (P. L. 91), the legislature approved a short form of deed, which is given exactly the same legal effect as the older, traditional form. The title insurance companies and the older convey- Deeds. 87 ancers are, however, loath to abandon the old form and to adopt the new. There is something to be said on both sides. The short form would seem to be preferable since it elimi- nates obsolete and useless language, facilitates recording, and saves time and expense. On the other hand, the ad- herents of the older form point out that this form has re- ceived years of judicial interpretation and every clause has a known definite meaning, not only in this jurisdiction but in all common law jurisdictions. Which form will finally prevail, — whether the simplified form will meet the fate of simplified spelling, — cannot now be determined. For an example of a short form deed see Appendix, Form 23, page 464. For the legal effect of the short form see the act of 1909, P. L. 91, the provisions of which are self-ex- planatory and need no interpretation. 85. EXECUTION OF DEEDS. READING. The formalities of execution usually include reading, signing, sealing, attestation and acknowledgment. If either party requires that the deed should be read be- fore it is executed, it must be done. The presumption is, however, that every party to a deed is fully acquainted with its contents. Chief Justice Gibson has said : "If a party who can read will not read a deed before him for execution, or if, being unable to read, he will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection, either at law or in equity." ( Greenfield's Estate, 14 Pa. 496. ) Re- lief, of course, would be granted in case of fraud or deceit. {County of Schuylkill v. Copley, 67 Pa. 386.) 86. SIGNING. Historically, sealing antedates signing. In the early times English people generally, noble as well as peasant, could not write, and hence at common law the affixing of the seal only was necessary to the execution of the deed. The Statute of Frauds, however, it will be remembered, re- 88 Conveyancing in Pennsylvania. quired that instruments concerning real estate be signed. From this time on, the signing became the important part of the execution of a deed. Sealing by itself is no longer sufficient, the deed must be signed. A deed is good if actually signed no matter how poorly the signature be written. If the party is unable to write he may sign by mark, in which event the mark must be at- tested, i. e., witnessed by the one who writes the party's name. This is usually done as follows: Witness : his Jeremiah Stone. Jacob X Strong mark. The name of the grantor is written out by the witness and the grantor then makes his mark between his Christian and surname. The words, "his" and "mark" are then written respectively above and below the mark and the witness signs opposite. Even though able to sign, a grantor may execute the deed through an agent, provided (1) the agent has written au- thority under seal, or (2) signs in the presence of the prin- cipal. ( Grove v. Hodges, 55 Pa. 504. ) 87. SEALING. As the world outgrew the necessities of the age when men made seals because they could not write, seals became less elaborate and in some states have been abolished atlogether. In Pennsylvania it is still necessary ; a deed still requires a seal. Although a writing without a seal operates to con- vey a good title, yet strictly speaking it would not be a deed. However, in Pennsylvania, neither the wafer or wax seal is required, nor is any distinctive seal required; any mark made opposite the name and intended as a seal will be so considered. {Hacker's Appeal, 121 Pa. 192.) One seal may be adopted by all the parties if there are several grantors. {Bom,an r. Rohb, 6 Pa. 302.) A deed of a corporation must always be under seal, but even the seal of a corporation need not be of any prescribed Deeds. 89 form. Any device adopted by the corporation and intended as its seal will be so treated. {Nicholas v. Machine Co., 7 North. 137.) It is not sufficient to merely recite in the instrument that it is under seal. There must be some mark or letters in- tended as a seal. If there is such a seal, however, the in- strument is a deed even though there is no mention of a seal. {Taylor v. Qlaser, 2 S. & R. 501.) 88. ATTESTATION. Attestation means witnessing. The witnessing of the execution of a deed by subscribing witness or witnesses was not necessary at common law and is not required in Penn- sylvania generally speaking, though it is usually done so that in case of any dispute thereafter it may be known who was present, in order that their testimony may be pro- cured. {Long V. Ramsey, 1 S. & E. 72; Barnard v. Kell, 271 Pa. 80.) There is, however, an important exception to the rule just stated, and that is, two subscribing wit- nesses who are disinterested are required where conveyance is made to a church or other charitable institution or use. (Section 11, Act April 26, 1855, P. L. 328, as amended by Act June 7, 1911, P. L. 702, Section 1.) Some states re- quire subscribing witnesses and whenever a deed be made conveying land outside of Pennsylvania it is safe practice to have the execution attested by two subscribing witnesses. 89. DELIVERY OF DEED. After the signing and sealing it is necessary that a deed be delivered before title passes to the grantee. No cere- mony or form whatever is necessary to a valid delivery. Whether there has been a proper and sufficient delivery depends upon the intention of the grantor. ( Critchfield v. Critchfield, 24 Pa. 100. ) Delivery may be by acts alone or by words alone, or by the two together. {Kanawell v. Miller, 262 Pa. 9. ) There is often no direct evidence on the point owing to the death of the parties or for some other reason. 90 Conveyancing in Pennsylvania. As an aid, therefore, in ascertaining such intent the law has established certain presumptions. If the deed is in the possession of the grantor there is a presumption that there has been no delivery. This pre- sumption, however, can be rebutted by proof that there was an actual delivery before the deed came back into the pos- session of the grantor. It can also be rebutted by circum- stances showing that possession by the grantor is not incon- sistent with a delivery, as for example, where grantor and grantee live together. {Gummings v. Glass, 162 Pa. 241.) If the deed is in the possession of the grantee there is a presumption that it has been delivered. [Gable v. Gable, 146 Pa. 451. ) This presumption, however, can be rebutted by direct evidence showing no intent to deliver. Evidence that the possession of the grantee was obtained by fraud or theft, destroys the presumption of delivery. {Sears v. Trust Go., 22^ Pa. 126.) Recording of a deed raises a presumption of delivery, which can be rebutted, however, by evidence that there was no intent to deliver and that the recording was unauthor- ized by the grantor. {Bush v. Geuter, 174 Pa. 154; Lewis V. Merryman, 271 Pa. 255. ) Evidence of recording by the grantor or with his consent, would be conclusive of a de- livery. When rights of third parties who have relied upon the record are involved, it would be extremely difflcult ( and usually impossible) for the grantor to prove that there was no delivery. Such proof, however, is legally possible, even against the rights of subsequent purchasers who have relied upon the record, by evidence that the deed was obtained without the consent of the grantor and without any care- lessness or negligence on his part. Acceptance of a deed by the grantee is necessary to com- plete the title. Acceptance will be presumed in the absence of evidence showing a refusal. If the grantee dies before delivery there can be no delivery to his heirs. In such a case, if the conveyance were under a contract of sale, the heirs can enforce the contract and obtain a new deed to them. Deeds. 91 90. DELIVERY IN ESCROW. A deed can be delivered to a third person, to be delivered later to the grantee upon the happening of some condition, — usually the payment of the purchase price. This is called a delivery in escrow. When a deed is fully executed and deposited with a real estate broker, attorney or title com- pany with instructions to deliver it to the grantee upon payment of the purchase price, the delivery is not complete and title has not passed. The grantor retains title as a protection until the price is paid. But he has taken an irrevocable step toward complete delivery and cannot pre- vent title from ultimately passing, by getting possession of the deed. {Bourn's Appeal, 113 Pa. 58.) Since title does not pass until the performance of the condition, creditors of the grantor who obtain judgment while the deed is in escrow obtain valid liens. {Landon V. Brown, IQO Pa. 538.) If the grantee, through fraud, obtains possession of the deed without performing the condition, he himself does not obtain good title, but if he conveys to a bona fide purchaser, such purchaser acquires an indefeasible title. (Blight v. Shenck, 10 Pa. 285. ) This is on the theory that the grantor made it possible for the fraud to be committed by deliver- ing in escrow and he should be the one to suffer — called the doctrine of "estoppel." A delivery in escrow or upon condition cannot be made direct to the grantee. The law regards such a delivery as absolute. A grantor sometimes attempts to have a deed take effect at the time of his death. This is not possible if the deed re- mained in the grantor's possession until the time of his death. (Critchfield v. Critchfield, 24 Pa. 100.) But if the grantor delivers the deed in escrow to a third person to be ■ delivered to the grantee upon the grantor's death, the grantee takes good title. {Stephens v. Huss, 54 Pa. 20.) 92 Conveyancing in Pennsylvania. 91. ALTERATION OR DESTRUCTION OF DEEDS. If any erasures, alterations or interlineations appear upon the deed, it is presumed that they were made before delivery and were made with the consent of the grantor. {Jordan v. 8tewfir% 23 Pa. 244 at 248. ) This presumption, however, can be overcome by proof to the contrary. If it is proved that the alteration was made after de- livery, such alteration will usually be of no effect since title passed at the time of delivery and no later treatment of the deed — not even its total destruction — can affect the title. {Coleman v. Reynolds, 181 Pa. 317.) In some cases of fraudulent alteration, where the rights of the grantor are affected — as by recording the altered deed — the whole deed may be rendered void. ( Wallace v. Harmstad, 44 Pa. 492. ) If the loss of a deed be established, the contents may be proved by oral evidence and a court of equity may compel the grantor to give a new deed. {Wallace v. Harsttod, 44 Pa. 492, at 495.) 92. ACKNOWLEDGMENT OF DEEDS. We have seen that signing, sealing and delivery of a deed without more, vests the title in the grantee. Acknowledg- ment is not necessary to pass the title {Maguire v. Realty Co., 257 Pa. 48 ) , but acknowledgment is necessary in order to record the instrument. This practically makes ac- knowledgment necessary in every case, for without it there is no protection against the frauds which the recording system has done away with. By acknowledgment is meant the appearance of the grantor before an officer qualified by law to take acknowl- edgments (usually a notary), and formally acknowledging the execution of the instrument as his act and deed. The acknowledgment must be made by the grantor in per- son and the official taking the acknowledgment while he need not be personally acquainted with the grantor should Deeds. 93 be satisfied as to his identity. (Com. v. Haines, 97 Pa. 228.) Acknowledgment hy a, corporation is made by one of the officers authorized to do so, either by the president or the secretary. The best practice is to have the acknowledging clause recite the fact that the officer was authorized to do so by resolution of the board of directors. The secretary should attest as witness even where he is the officer making the acknowledgment. (See form of acknowledgment by corporation, Appendix, Form 4, page 441.) "A corporation may acknowledge any deed, conveyance, mortgage or other instrument of writing by an attorney ap- pointed by such corporation, and such appointment may be embodied in said deed, conveyance, mortgage or other in- strument of writing in substantially the following form" (Act of May 11, 1901, section 1, P. L. 171.) (See Appen- dix, Form 5, page 442 and Form 6, page 442. ) Acknowledgments hy trustees are made the same as by individuals except that the clause should recite that he is a trustee. Although the word trustee annexed to his name has been held sufficient without more. {Dail v. Moore, 51 Mo. 589.) (See Appendix, Form 2, page 440.) Acknowledgments hy attorneys in fact should be as the act of their principal as well as their own act. ( See Ap- pendix, Form 3, page 441. ) 93. SEPARATE ACKNOWLEDGMENTS OF MAR- RIED WOMEN NOT NECESSARY IN PENN- SYLVANIA. In some of the States, for example New Jersey, it is still necessary for an acknowledgment of the wife to be separate and apart from her husband, but in Pennsylvania, by the Act of April 4, 1901, P. L. 67, this is no longer required, and the acknowledgment of a married woman may now be taken as though she, were a feme sole, that is, like that of any other person. 94 Conveyancing in Pennsylvania. 94. WHAT A VALID CERTIFICATE OF ACKNOWL- EDGMENT MUST CONTAIN. It has been the policy of the State of Pennsylvania to prevent any injustice from arising from any defects that may happen in the certificate of acknowledgment. Hence at every session of the legislature, which assembles bi- ennially, there is usually passed an act which validates all acknowledgments taken before its passage, which may be invalid by reason of omission or defects of form. However, by bearing in mind the few essentials that are requisite to a proper acknowledgment there should be no fear of any defective acknowledgments. The certificate of acknowledgment to be valid should always contain these things: a. The date. b. The venue. c. The name of the grantor. d. The signature of the officer taking the acknowl- edgment. e. His of&cial position. /. His seal. g. If a notary, the date of the expiration of his com- mission. (See Appendix, Form 1, page 440.) a. Date. — The date should appear. By this is meant the date when the deed is acknowledged, not when executed, although the best practice is to have the deed acknowledged as soon as it has been executed. The acknowledgment may be made at any time after execution, but the deed cannot be recorded until it is acknowledged. h. Venue. — By venue is meant the place of residence of the officer taking the acknowledgment. In the form above given it appears in the words, A notary public of the Commonwealth of Pennsylvania residing in the City and County of Philadelphia. Should the officer be a magis- trate or justice of the peace, the venue would read: A magistrate (or justice of the peace) of the County of Phila- Deeds. 95 delphia, etc. Since the Act of April 1, 1909, P. L. 91, the venue may possibly be omitted and the form of acknowledg- ment set forth at the end of short form of deed (Appendix, Form 23, page 464 ) may be used for all purposes. c. The name of the grantor who makes the acknowledg- ment must, of course, appear. d. Signature of the officer taking the acknowledgment is obviously necessary to the validity of the certification. 6. Official position of the officer taking the acknowledg- ment must appear in order that the authority of the officer to take acknowledgment may appear on the face of the certificate. /. Seal. — The seal completes the act of certification and should appear after the signature. g. Notaries public are required in addition to append the date when their commissions expire under Act of April 4, 1901, P. L. 70. In view of the Act of April 27, 1909, P. L. 181, which prohibits a director or officer of any bank, banking institu- tion or trust company from performing duties of notary in his company, an acknowledgment or affidavit taken for any bank, banking institution or trust company should contain a certification by the notary in words such as the following: "I am not a stockholder, director or officer of said company." The Act of 1903, P. L. 50, prohibited a stockholder from acting as notary for a bank, and, although this word is omitted in the Act of 1909, it is customary to use the certificate in the form given above. 95. BY WHOM ACKNOWLEDGMENTS MAY BE TAKEN. The legislature has passed a large number of Acts con- ferring upon various officers the right to take acknowledg- ments. Many of these Acts are local in their application, some are undoubtedly obsolete, and it is not advisable to consider them in detail. Deeds are usually acknowledged before Notaries Public or Justices of the Peace, but the 96 Conveyancing in Pennsylvania. following officers are also qualified to take acknowledg- ments : Any Judge of the United States ; any Judge of the Supreme, Superior, Common Pleas or Orphans' Courts of Pennsylvania; Mayors, Kecorders and certain other officials of most cities. A deed to Pennsylvania land executed in another State can be acknowledged before any officer allowed by the law of that State to take acknowledgments. ( Act of December 14, 1854, P. L. 572.) This Act goes on! to provide that proof of the authority of the officer shall be the certificate of the Clerk of any Court of Kecord in such State. Such certificate should be attached to the acknowledgment and recorded with the deed. In actual practice in Philadelphia, deeds acknowledged in another State, are accepted for record without such certificate of the Clerk of Court. Deeds executed in a foreign country should be acknowl- edged before an American Consul. A Notary Public can act in any county of the State. (Act of April 4, 1901, P. L. 70, Sec. 1.) But a Justice of the Peace cannot act outside of his county. {Share v. Anderson, 7 S. & R. 43.) If the officer is personally interested in the conveyance, the acknowledgment is void. {Withers v. Baird, 7 Watts 227.) 96. NOTARY PUBLIC. HOW TO BECOME ONE. Notaries public are the most usual officers before whom acknowledgments and affidavits are taken. Any person, male or female, of good character, twenty-one years of age may be a notary in Pennsylvania. To become one, secure an application form by writing to the Secretary of the Commonwealth, Harrisburg, Pa. This form must be filled out according to the instructions indorsed thereon. It must then be indorsed by the State senator of the senatorial district in which the applicant resides. The application is then forwarded to the private secretary of the governor, together with two letters of reputable citizens recommend- Deeds. 97 ing the applicant to be a person of good character. The application must also be accompanied by a certified check for $25.00. If the governor of the State approves the appli- cation, he appoints the applicant and if such appointment is confirmed by the senate, the commission issues. This commission must be recorded at the office of the recorder of deeds of the county in which the notary resides, and a bond filed, and oath of office taken at the prothonotary's office. The amount of bond varies according to the county for which the notary is appointed. Ten thousand dollars (110,000.00) in Philadelphia County; five thousand dollars (15,000.00) in Allegheny County and three thousand dollars ($3,000.00) in other counties are required. When this is done the notary may enter upon his duties. His commission is for four years. Should the senate not be in session when the application is made, the governor is authorized by law to issue a com- mission which expires at the expiration of the next session of the senate. When the senate convenes they may confirm the appointment and a new commission issues for four years from the date of confirmation. A female notary who marries must, before the perform- ance of any notarial act, return her commission to the governor, giving her married name, whereupon a new com- mission will issue to her in her new name for the unexpired term without any additional charge, although a new bond must be entered. By the Act of July 10, 1919, P. L. 903, the following fees for notary publics were provided: Making demand for payment or acceptance of a promis- sory note, bill of exchange, draft or check, seventy-five cents. Protesting the same, seventy-five cents. Eegistering protest of the same, fifty cents. All notices of protest, twenty cents. Administering oaths or affidavits, fifty cents. Acknowledgment or probate of deed or other instru- 7 98 Conveyancing in Pennsylvania. ment — For first name, fifty cents; for every additional name, twenty-five cents. Taking deposition (first page folio cap.) one dollar; each additional page, seventy-five cents. 97. PROBATE OF DEEDS WHERE GRANTOR IS DEAD OR UNABLE TO APPEAR. By probate of deed is meant proof of its execution by other means than acknowledgment. This may be done under the Act of May 28, 1715, 1 Sm. L. 94, Sec. 5, which provides that if the grantor is dead or cannot appear, the deed may be proved by the affidavit of the two subscribing witnesses. By the Act of March 18, 1775, 1 Sm. L. 422, the oath of one witness is made sufficient. The usual method of probate is to endorse on the deed the affidavit of the witness that he saw the grantor execute the instru- ment. This affidavit is signed by the witness and attested by a magistrate or justice of the peace. The affidavit need not be signed by the witnesses although it is. cus- tomary to have them do so. The attestation by the justice of the peace is the necessary thing. (See Appendix, Form 8, page 443. ) Probate of a deed entitles it to be re- corded even though not acknowledged. Should there be no subscribing witness and any party be dead, the handwrit- ing of the deceased may be proved before a judge of court and his certificate of proof by two witnesses entitles the deed to be recorded. (Act of May 25, 1878, P. L. 155, Sec. 1. (See Appendix, Form 9, page 444.) 98. ESTOPPEL BY DEED. A peculiar method by which title is transferred from one person to another is the doctrine known as title by estoppel. If a person conveys to another property which he does not own or to which he has an incomplete title, and later the grantor acquires a perfect title, such title immediately vests in the grantee as of the date of the deed. Deeds. 99 The full legal title passes by operation of law and no second deed is necessary. {Brown v. McCormick, 6 Watts 60; Logan v. Neill, 128 Pa. 457.) But the grantee can compel the delivery of a new deed and should do so to per- fect his title of record. ( Clark v. Martin, 49 Pa. 299. ) The grantor or his heirs is estopped from asserting against the grantee, his heirs or assigns, the title subsequently acquired. In other words he is not allowed to contradict his former deed. The doctrine of estoppel as stated by the United States Supreme Court ( Van Renssaeler v. Kearney, 11 How. 297) is one "that imposes silence on a party where, in conscience and honesty, he should not be allowed to speak." Most of the cases are deeds containing covenants of general warranty, but it seems clear that the doctrine applies to deeds with special warranty or even to deeds with no warranty at all. {Root v. Crock, 1 Fa. 378.) The grantee cannot reject the title so acquired and recover the full consideration paid. {Knowles v. Kennedy, 82 Pa. 445.) The title so acquired by the grantee is not valid, how- ever, as against subsequent purchasers or mortgagees from the grantor, without notice, who have relied upon the record. {Calder v. Chapman, 52 Pa. 359; Gallagher v. Stern, 250 Pa. 292.) In searching the record they would look for conveyances by the grantor only after he acquired title and thus would not discover the prior deed even though it had been recorded. The Eecording Acts do not expressly cover titles by estoppel but the spirit and pur- pose of the Acts require that a new deed be recorded after the perfect title is acquired; the record of the original deed is not sufficient. CHAPTER VII. Mortgages. Section Page 99. Definition of Mortgage, Bond and Warrant. . . 101 100. History and Develop- ment of Mortgages . . 102 101. Origin of Equity of Ee- demption of a Mort- gage 103 102. A Mortgage is a Collat- eral or Secondary Ob- ligation 104 103. Nature of a Mortgage in Pennsylvania .... 105 104. Eights and Status of the Mortgagor 106 105. Eights and Status of the Mortgagee 107 106. Form of a Mortgage, General Eequirements 108 107. Tormal Parts of a Mort- gage 108 108. Bond and Warrant of Attorney 110 109. Certificate of Besidence of Mortgagees Ill 110. What May Be Mort- gaged. In General . . 112 111. Leasehold Mortgages . . 112 112. After Acquired Prop- erty 113 113. Fixtures 114 114. Parties to a Mortgage. In General 114 115. Married Women 115 116. Minors 116 117. Other Persons Under Disability 116 Section Page 118. Fiduciaries 117 119. Corporations 117 120. Corporation Mortgage to Secure Bond Issue . . 118 121. Kinds of Mortgages, Purchase Money Mort- gage 119 122. Advance Money Mort- gage 120 123. Absolute Deed and Sep- arate Defeasance .... 122 124. Vendor's Lien 122 125. Equitable Mortgage . . 123 126. First Mortgages 123 127. Second Mortgages. Sec- ond Mortgage Clause 123 128. Building and Loan As- sociation Mortgage . . 125 129. Assignment of Mort- gages. Methods and Form of Assignment . 125 130. Assignment of Frac- tional Portions 126 131. Eights of Assignee Against Assignor . . . 126 132. Eights of Assignee Against Mortgagor . . 127 133. Declaration of No Set OfE 128 134. Eights of Second As- signee Against Mort- gagor 129 135. Eights of Assignee Against Other Per- sons 130 100 Mortgages. 101 Section Page 136. Eecording the Assign- ment 130 137. Sale of Property Subject to a Mortgage. In General 131 138. Rights of Mortgagee Against the Mortgagor (Vendor) After Sale of the Property 131 139. Avoiding Personal Lia- bility of Mortgagor by Use of Straw Man . . 132 140. Rights of Mortgagee Against Purchaser . . 133 141. Rights of Vendor (Mortgagor) Against Purchaser 133 142. Sale of Mortgaged Prop- erty in Parts 135 Section Page 143. Recording of Mortgages 135 144. Discharge of a Mort- gage. By Payment. . 136 145. Rights of a Third Party Who Pays the Mort- gage Debt 137 146. Satisfaction of Mort- gages 138 147. Satisfaction by Order of Court 139 148. Release of a Mortgage . 140 149. Discharge by Merger . . 142 150. Discharge by Judicial Sale 142 151. Remedies of Mortgagee Upon Default by Mortgagor 142 152. Poreclosure by Writ of Scire Facias 143 99. DEFINITION OF MORTGAGE, BOND AND WAR- RANT. A mortgage is a pledge of an estate in land, as collateral security for the repayment of money or performance of some other act. In form it recites the fact that the mort- gagor is under obligation to pay a certain sum of money at a certain period and to pay interest at certain intervals and for the purpose of securing the performance of these covenants certain land (described) is conveyed to the mortgagee which conveyance is defeasible on the perform- ance of the covenants set forth. ( See Appendix, Form 54, page 545. ) Accompanying a mortgage, although not neces- sary to its validity we usually find an instrument evidenc- ing the debt for which the mortgage is security. This may be a promissory note, but in Pennsylvania it is usually a bond accompanied by a warrant of attorney authorizing an attorney-at-law to appear for and confess judgment for the mortgagee against the mortgagor. ( See Appendix, Form 55, page 549. ) 102 Conveyancing in Pennsylvania. The bond and mortgage are separate and distinct instru- ments but are securities for one and the same debt. A mortgage creates a lien, as will be hereinafter explained on a certain property. The bond and warrant creates no lien until entered of record as a judgment when default is made. Then it becomes a general judgment lien against all of the defendant's real estate. In some instances when the mort- gaged premises have depreciated in value and the mort- gagor has other property, the advantages of proceeding on the bond and warrant are obvious. 100. HISTORY AND DEVELOPMENT OF MORT- GAGES. A brief resume of the history of the development of mort- gages is interesting and instructive. In early England there were two forms of mortgages or pledges of land, one known as the "vivum vadium" and the other as the "mor- tuum vadium." In a vivum vadium the land was conveyed to the creditor to hold until out of the rents, issues and profits the creditor could pay the debt, when the debtor was entitled to receive back the land. In the mortuum vadium the land was conveyed to the creditor, who took possession and held it until the debt was paid. During this time the rents, etc., were not applied to the reducing of the debt, but were retained by the creditor. Manifestly this was a most vigorous and harsh kind of a pledge, and soon fell into disuse. Later this form was modified so that possession of the land was not given to the creditor unless the debt was not paid upon a certain day fixed. This modification became the modern mortgage {dead pledge) so called, says Little- ton, "because if the money was not paid on the day fixed the land was forfeited and became dead to the mortgagor. If it was paid then the pledge became dead to the mort- gagee." It will be observed that this mortgage differed from its forerunners, the vivum vadium and mortuum vadium in this very material point. In the earlier kind Mortgages. 103 of pledges possession of the land was given when the debt was created and the instrument made: in the later type the mortgagee or creditor never was given possession of the land unless the mortgage debt was not paid. 101. ORIGIN OF EQUITY REDEMPTION OF A MORTGAGE. The common law form of the mortgage was thus strictly an estate on condition. If the condition was performed, i.e., if the money was paid at the time stipulated, the interest of the mortgagee was extinguished. If, on the contrary, the condition was broken, that is, if the money was not paid exactly upon the due date, an absolute fee simple estate vested in the mortgagee and all right of the mortgagor was gone. It frequently happened that the forfeiture in most instances was a very great hardship against which the common law courts could give no relief. In such instances the mortgagors turned to the equity courts for relief. These decided that, although strict interpretation of the common law vested in the mortgagee an absolute title upon the breach of the condition at the time fixed, yet justice re- quired that the mortgagor be given a further opportunity to redeem the property and if he could pay back to the mortgagee the debt, interest and costs, he should have his land back. This right to redeem the property after forfeiture natu- rally came to be called the "Equity of Kedemption." The name still survives in the expression, — a person's "equity" in a property, — by which is meant, of course, the interest a person has in a property over and above the mortgage. At first no time was set within which the right of re- demption in equity had to be applied for. It naturally followed that the mortgagee felt insecure as to his right to the property even though the land was forfeited and the mortgagee had made no move in equity to redeem it. This led to great uncertainty and worked a hardship upon the 104 Conveyancing in Pennsylvania. mortgagee since he feared to improve the land because his occupation might later be disturbed. Consequently, the mortgagee, in turn, began to turn to the equity court for re- lief and asked to have the mortgagor's right of equity re- demption ended or "foreclosed." The equity court would then fix a certain day at or before which the debtor, — that is, the mortgagor, — was required to pay his debt. If he failed to obey the order of the court the estate became abso- lutely forfeited to the mortgagee. This, to a certain extent, again involved a hardship upon the mortgagor, who often was willing but unable to pay the money to redeem his property, even within the additional time given. The matter was finally and most justly settled by a statute or Act of Parliament which authorized the equity court to sell the property at the request of either party, and after payment of the mortgage debt to pay the balance of the proceeds realized from the sale to the mortgagor. In some States, as in New Jersey, foreclosure suits are still brought in equity. In Pennsylvania and other States by statute a shorter and less costly method of proceeding is provided by writ of sdre facias in the common law courts. The law considers a mortgagor's equity of redemption so important and fundamental a right that the parties are not allowed, even by express contract, to take away this right or to interfere with its customary operation. In other words, a lender of money is not allowed to take advantage of a borrower's necessitous circumstances by obtaining an express agreement for a strict common law forfeiture of the land in case of default by the mortgagor, — a policy some- what similar to that which is back of the law against usury. 102. A MORTGAGE IS A COLLATERAL OR SECOND- ARY OBLIGATION. A mortgage is a secondary — not a primary obligation. It is merely collateral security for a debt, and without a debt there usually can be no valid and enforceable mort- gage. Lack of consideration is a valid defense to an action Mortgages. 105 for the enforcement of a mortgage, unless this defense has been cut off by the endorsement of a promissory note, or unless the mortgagor has made himself liable under the doctrine of estoppel. (See Johnson v. McCurdy, 83 Pa. 282.) The mortgage follows the debt and is available to an assignee of the debt even though the mortgage is not assigned. {De WiWs Appeal, 76 Pa. 283.) The debt need not be created at the same time the mort- gage is created, although this is the usual case. A mort- gage may be given to secure a preexisting indebtedness, or to secure future advances. A valid mortgage may be given to secure the debt of another than the mortgagee. {Maffitt V. Rynd, 69 Pa. 380.) Although the existence of an en- forceable debt is necessary, it is not necessary that there be any instrument other than the mortgage, evidencing the debt. {Neale v. Dempster, 179 Pa. 569 at 576. ) 103. NATURE OF A MORTGAGE IN PENNSYL- VANIA. Although a modern mortgage still follows the old form of a fee simple conveyance upon condition, a mortgage in Pennsylvania is no longer regarded as a conveyance of the title. It is considered for most purposes merely as a lien upon the land as a pledge or security for the debt. [Pres- hyterian Corporation v. Walliace, 3 Eawle 109.) In the case just cited the Presbyterian Corporation in- stituted foreclosure proceedings. The defense was, that, some time prior, the property had been sold by the Sheriff under a subsequent lien and that thereby the mortgage had been discharged. The plaintiff replied that only "in- cumbrances" were discharged by such a sale and that a mortgage was not an incumbrance but an estate in the land held by the mortgagee and was therefore not discharged." Gibson^ C. J., delivering the opinion, said: "In form a mortgage is certainly a conveyance; but it is unquestion- ably treated at law here, in the way it is treated in equity elsewhere, as a bare incumbrance, and the accessory of a 106 Conveyancing in Pennsylvania. debt. As between the parties it is a conveyance, so far as is necessary to enforce it as a security; as regards third persons, the mortgagor is the owner, even of the legal estate." See Tryon v. Mimson, 11 Pa. 250 at 262, where the court held that for the purpose of enforcing Ms security the interest of the mortgagee is an "estate in the land itself, capable of enjoyment and enabling the mortgagee to grasp and hold it actually and not a mere lien or potentiality." 104. RIGHTS AND STATUS OF THE MORTGAGOR. The mortgagor is considered as the sole owner of the property. He can convey it or encumber it without the joinder of the mortgagee. He usually has the right to pos- session, is liable for taxes, has the benefit of all improve- ments on the property and bears the risk of any loss or depreciation. At his death the property descends as real estate directly to his heirs or passes directly to his devisees. His wife has dower, — but only, however, in the equity of redemption, as we shall see later. ( Sec. 115. ) Even though he defaults in the payment of the debt he does not lose all of his interest in the property and is entitled, upon a foreclosure sale, to the proceeds after payment of the mortgage debt. As we have seen (Sec. 101 ) he cannot contract away this right — cannot "clog his equity of redemption," as the courts say — even by express agreement. He is not only a mortgagor of real estate, — he is also the obligor of a debt, for which he is personally liable at all times and up to the full amount. Thus if the land, upon foreclosure, does not bring enough to pay the mort- gage debt, the mortgagor is personally liable for the de- ficiency. This personal liability continues and may be en- forced against him even after he has sold the land subject to the mortgage. Mortgages. 107 105. RIGHTS AND STATUS OF THE MORTGAGEE. The interest of the mortgagee, on the other hand, is con- sidered as personal property for most purposes. Except for the purpose of enforcing his lien, he does not own an estate in the land and hence his judgment creditors have no lien upon the land. What he owns is the right to collect a debt. This right can be assigned without the joinder of his wife and at his death passes to his executor or ad- ministrator to be distributed as personal property. Even though his personal representative buys in the property upon a foreclosure sale after the death of the mortgagee, the property is still considered as personalty for purposes of accounting and distribution in the orphan's court. For purposes of protecting and realizing upon his secu- rity, the mortgagee is considered as the owner. Thus he can enjoin waste by the mortgagor which tends to diminish the value of the security, and it is no defense to such an injunction proceeding that the diminished value of the property would be ample security. {Real Estate Trust Company v. Hatton, 194 Pa. 449.) Upon default by the mortgagor the mortgagee has the right to possession of the premises and can obtain possession by an action of ejectment if necessary. He does not acquire an indefeas- ible title, however, and holds the property only as security, applying the rents and profits to the reduction of the mort- gage debt. The statement is often found in Supreme Court opinions that a mortgagee has the right to possession at any time, even before default. Thus in Youngman v. Elmira, etc.,, R. R. Co., 65 Pa. 278 at 285, Shaeswood, J. says, "That a mortgagee or his assignee may maintain ejectment and recover possession of the mortgaged prop- erty before the condition is broken, unless there is a stipula- tion in the instrument to the contrary, is too well settled in this state to be any longer a subject of question." In Soper V. Guernsey, 71 Pa. 219 at 224, the right of the mort- gagee to possession before default was further qualified by holding that this right may be denied by an implied intent 108 Conveyancing in Pennsylvania. of the parties to the contrary. Although the modern mort- gage does not usually have any express provisions as to possession, it should be considered in the ordinary case that the mortgagor has an implied right to possession until default. After default the mortgagee in practice rarely exercises his right to take possession, but collects his debt through a judicial sale of the property. Upon such sale he is not limited to the value of the property when the mortgage was given, and can obtain, if necessary, the benefit of any improvements that have been made on the property. 106. FORM OF A MORTGAGE. GENERAL RE- QUIREMENTS. A mortgage must be in writing [Bowes v. Oyster, 3 P. & W. 239) but need not be in any particular form. The practice used in England of creating an equitable mort- gage by the deposit of title deeds is not recognized in Pennsylvania. {Shitz v. Dieffenhach, 3 Pa. 233.) It is valid if signed only by the mortgagor, but the courts will enforce an express stipulation that it must be signed by both, and will decree cancellation in such a case if signed by the mortgagor only. {Brown v. McCrdght, 187 Pa. 181.) A mortgage without a seal is valid and may be recorded, but a scire facias may not issue on an unsealed mortgage, since the Act of 1705, 1 Sm. L. 57, creating this remedy of foreclosure, applies only to mortgage deeds. Alteration of a mortgage after final delivery absolutely discharges the mortgage. It is doubtful whether a mort- gage is valid that is signed, sealed and delivered in blank, although there is some authority to the effect that such a deed is valid. {Wiley v. Moor, 17 S. & K. 438; Wallace V. Harmstad, 15 Pa. 462.) 107. FORMAL PARTS OF A MORTGAGE. Although a mortgage need not be in any particular form, the form used in general practice (see Appendix, Form 54), Mortgages. 109 page 545 ) contains three parts, Debt or Premises, Security or Conveyance, and Defeasance. (a) Debt or Premises. The Premises is the first part of the mortgage setting forth the names of the parties, the date, and containing the "Whereas" clause which recites the debt and the terms thereof. It is not necessary to state the amount of the debt nor to describe the nature of the debt. All that is required is such statement as will put third persons upon inquiry. A mortgagee is confined to the debt set out in the instrument and cannot include other debts, except that there can be an express provision that the mortgage shall cover future advances. (See Sec. 122.) The customary mortgage contains in the bond and war- rant and in the mortgage instrument itself certain obliga- tions on the part of the mortgagor in addition to the pay- ment of the debt with interest. These usually require the mortgagor to produce on or before September 1st of each year receipts for taxes and water rent, receipts for interest payments on prior incumbrances (if any), and to main- tain adequate fire insurance. There is usually the addi- tional proviso that upon default by the mortgagor and in foreclosure proceedings by writ of scire facias, the mort- gagee can collect an attorney's commission, — usually five per cent. If excessive this commission will be reduced, but otherwise it is entirely legal. {Cunningham v. McCready, 219 Pa. 594.) (b) Security or Conveyance. This is the part beginning "Now This Indenture Wit- nesseth" and is almost exactly similar in form to the language of an ordinary fee simple deed. It is usual to set forth the exact amount of the debt, and a further sum of one dollar as consideration, but this is entirely unneces- sary to the creation of a valid mortgage. The description of the property must be sufficient to indicate what land is covered by the mortgage, but may be in very general terms, and need not be by metes and bounds or by courses and 110 Conveyancing in Pennsylvania. distances. (Bailey v. Allegheny Bank, lOi Ya.. '^25.) The rules governing descriptions and boundaries in deeds also apply to mortgages. (Patterson v. Harlan, 124 Pa. 67.) (c) Defeasance. This is the part beginning with the words "Provided Always Nevertheless." It is the conditional clause which turns the fee simple deed into a mortgage, and provides that, upon fulfilment by the mortgagor of his obligations, according to the terms of the bond or debt, then the mort- gage shall become void. This defeasance may be in a sepa- rate instrument. For the special rules applicable in such cases, see Sec. 123. 108. BOND AND WARRANT OF ATTORNEY. The bond and warrant of attorney to confess judgment are really two separate instruments although they are usually spoken of as one. This is probably because they are usually fastened together. The bond itself, as may be seen from the form set forth in the Appendix, Form 55, page 549, recites the fact that the maker thereof, called the obligor, who is the mortgagor in the mortgage, holds him- self indebted to the obligee in the sum of five thousand ($5,000.00) dollars. The amount of the bond is by custom made in double the amount of the sum really due, doubtless iii order to amply protect the obligee as to interest and costs, should proceedings thereon become necessary but such double amount is wholly unnecessary since the prin- cipal sum always carries with it interest and costs, and the courts would allow no greater recovery than this, re- gardless of the amount of the bond. Following the bond proper Avhich is nothing more or less than an acknowl- edgment of indebtedness, come the conditions of the bond. These are the same as those found in the mortgage, viz. to maintain fire insurance as collateral in an amount equal to the sum due (here |2,500.00) upon the buildings on which the mortgage is made; to repay at the expira- tion of the term fixed (here three years) the principal sum MOETGAGES. Ill due (here |2,500.00) ; to pay taxes and water rents as- sessed on the mortgaged premises and to produce the re- ceipts therefor at the time fixed (usually September 1st, every year) ; to pay interest at the rate fixed, and the whole principal sum at maturity. It then recites that if these conditions are performed, the obligation or bond is to become void; or otherwise, to remain in full force, virtue and eifect. It provides further that if default is made in the production of the taxes and water rent receipts or in the payment of interest or maintenance of the insur- ance, the whole amount of the bond is to become immedi- ately due and payable and proceedings may be commenced to recover the same, etc. ; or judgment may be confessed against the: obligor on the accompanying warrant of at- torney, with an attorney's commission for collection of five per cent., added to the amount due; or that proceed- ings may be commenced on the accompanying indenture of mortgage. 109. CERTIFICATE OF RESIDENCE OF MORT- GAGEES. By the Act of April 29, 1909, P. L. 289, all mortgages, assignments or agreements given to secure the payment of money at interest must contain a certificate signed by the mortgagee, assignee, etc., or his or her duly authorized agent setting forth the precise residence of the mortgagee, assignee or party entitled to the interest. The Recorder is bound under this act to refuse to receive for record any such mortgage, assignment or agreement unless it contains such a certificate of residence. The object of this act was to enable the tax assessors to ascertain the names and ad- dresses of all persons who have money at interest in order that they may be properly taxed. The certificate required need not be inserted in the body of the instrument. Nor is it required to be any more formal than a mere state- ment of residence such as the following, I hereby certify that my residence is 1321 M Street, Philadelphia, Pa. Richaed Brown. 112 Conveyancing in Pennsylvania. This may be indorsed on the back of the mortgage or written along the margin. This certificate need not neces- sarily be made by the mortgagee; his agent or any one cognizant of his address may certify it. 110. WHAT MAY BE MORTQAGED. IN GENERAL. Any interest in real property that may be sold may be mortgaged. A ground rent ( Weidner. v. Poster, 2 P. & W. 23) ; an equitable interest in land (Easton Borough's Ap- peal, 47 Pa. 255) ; future interest, whether vested or con- tingent; leaseholds (See Sec. Ill); after-acquired prop- erty. (See Sec. 112.) Land directed by a will to be sold cannot be mortgaged by the executor or beneficiary since it is regarded as per- sonalty. ( Gray v. Smith, 3 Watts 289 ) . But the rule is otherwise if all the legatees elect to take the land as such. [Bailey v. Allegheny Bank, 104 Pa. 425.) Chattel mortgages in Pennsylvania, while valid as be- tween the parties are (with a few exceptions; see Act of May 20, 1891, P. L. 102) void as to purchasers from, or creditors of, the mortgagor unless the mortgagee takes possession. (Mode's Estate, 76 Pa. 502 ; Maynard v. Shaw, 246 Pa. 330. ) The rule is different as to corporate mort- gages to secure a bond issue and such mortgages cover all personal property as well as real estate without the neces- sity of change of possession. {Robinson v. Atlantic, etc., R. R. Co., 66 Pa. 160 ; Phila., etc., R. R. Co. v. Woelpper, 64 Pa. 366.) 111. LEASEHOLD MORTGAGES. We have seen that in general any freehold estate of land may be mortgaged; so also may a leasehold interest be mortgaged. This is an important advantage where the lease is for a long term of years. Under Act of April 27th, 1855, P. L. 368, Sec. 8, every lessee for a term of years may mortgage his lease with all buildings, fixtures and machinery thereon with the same effect as in case of free- Mortgages. 113 hold interests. But the mortgage must be acknowledged and recorded with the lease or a copy thereof. {Ladley v. Creighton, 70 Pa. 490.) (See Appendix Form 62, p. 578.) Such mortgage, however, does not affect the landlord's rights, priority or remedy for rent. As the right to mort- gage leaseholds is a statutory right it is strictly construed, so that where a lease and a mortgage of said lease are duly recorded and both expire on a date named and the lease is extended after the expiration of the original term but the extension of lease is not recorded, the lien of the mortgage is not extended but is lost on the date when the lease had expired. This applies not only to the lien on the lease, but also to the lien on the fixtures and machinery belonging to the lessee which are considered appurtenant to the lease. {Stoclo v. German Press Co., 230 Pa. 127.) 112. AFTER ACQUIRED PROPERTY. Where one mortgages property to which he has no good legal title and later acquires such title, the title so acquired will enure to the benefit of the mortgagee under the doc- trine of estoppel. (See Sec. 98.) Such mortgage, even though recorded, is not valid as to subsequent purchasers or mortgagees, since in searching the record they would naturally look for encumbrances only after the time the mortgagor acquired title. Although the lien of such a mortgage is good at common law, and although there may be a technical compliance with the Eecording Acts by recording, yet the general purpose and spirit of these Acts require that subsequent purchasers, mortgagees and judgment creditors, after the title was acquired, should be protected. {Galder v. Chapman, 52 Pa. 359; Gallagher v. Stem, 250 Pa. 292.) A corporate mortgage of all the property of a railroad to secure a bond issue may cover all property both real and personal that may be acquired after the date of the mort- gage, auid such a mortgage is valid ias to subsequent creditors. (Philadelphia', etc., R. R. Co. v. Woelpper, 64 Pa 366.) 8 114 Conveyancing in Pennsylvania. 113. FIXTURES. In general all fixtures belonging to the realty are cov- ered by the mortgage. As to what are, or are not, fixtures depends chiefly upon the intent with which thp articles were originally attached to the realty. {Harmony Build- ing Assn. V. Berger, 99 Pa. 320.) Different rules apply to different types of cases. A tenant is allowed great liber- ality in removing as personal property, fixtures which he has attached. In the case of a deed, there is the opposite tendency to construe things attached to the land as realty, so as to pass to the purchaser. In the case of a mortgage there is a much stronger tendency to construe all articles attached to the realty as part of it and as covered by the mortgage. This is because the mortgage is only a lien for a debt which the mortgagor is bound to pay in any event. If he pays the debt there is no loss or forfeiture of the fixtures as would be true in the case of a vendor or a tenant. If he does not pay it is noi real injustice to give' the mortgagee liberal rights as to fixtures, since it is only by way of paying off a debt for which the mortgagor is personally liable. When the question arises between the mortgagee and other creditors of the mortgagor, there is not the same reason for liberality as to the mortgagee as is true when the issue is only between the two parties to the mortgage. This distinction, although not often emphasized by the courts, will serve to reconcile many seemingly confiicting decisions. 114. PARTIES TO A MORTGAGE. IN GENERAL. In, general any one who has capacity to contract and convey real estate can make a valid mortgage. The same disabilities which make a conveyance void or voidable apply also to a mortgage. The same is true as to the capacity of a mortgagee. Anyone who has capacity to hold title to real estate can usually be a mortgagee. There are some special prohibi- Mortgages. 115 tions such as the inability of a national bank to loan money on real estate security except under certain restric- tions, and the inability of a State Bank to invest in second mortgages. 115. MARRIED WOMEN. By the Act of June 8, 1893, P. L. 344, Sec. 1, a wife is forbidden from making a mortgage without her hus- band joining. Since the Act of June 4, 1901, P. L. 67, her acknowledgment of a mortgage need no longer be separate and apart from her husband. Should the wife be divorced, or if she be living separate from her husband under articles of agreement wherein her husband has released all his rights and interest in her property, she may convey or encumber or mortgage her estate as though she were a feme sole. (See Sec. 36.) (Act of June 9, 1897, P. L. 212.) The purposes for which the wife uses the money obtained by a mortgage does not affect the validity of the instru- ment as, for instance where she mortgages the property to raise money for her husband's use {Daubert v. Eckert, 94 Pa. 255 ) ; or where she mortgages her estate to secure a debt due by her husband, {ffagenbuch v. Philips, 112 Pa. 284. ) It should be noted, however, in such a case that the bond or note of the wife is void and she is under no personal liability, since the above Act of 1893 prohibits a married woman from being a surety. Although a married woman can not mortgage her estate without the joinder of her husband curiously enough by statute (Act of May 25, 1878, P. L. 152, Sec. 1), she is permitted to satisfy or assign a judgment or mortgage alone. A husband, on the other hand, can make a valid mort- gage without the joinder of his wife. There is an im- portant distinction between a deed and a mortgage as re gards a wife's dower. A deed, without her joinder, does not bar her dower. But in the case of a mortgage without 116 Conveyancing in Pennsylvania. her joinder, if the property is sold to pay off the mortgage, her dower is cut off. The purchaser at the sheriff's sale takes free and clear of the dower, and her only interest in the proceeds of the sale is a dower in the "equity of re- demption." If, however, that mortgage is made to defraud the wife and the mortgagee has notice of the fraud, she can claim a full dower interest in the proceeds of the sale, although as regards the land itself, a purchaser at the sale with no notice of the fraud takes a title free and clear of the dower. {McClurg v. Schwartz, 87 Pa. 521.) When the property is held by husband and wife as tenants by entireties neither can make a valid mortgage without the joinder of both. It is important to note that a judgment entered against the one who later becomes the survivor, is a prior lien to a mortgage created by both after the date of the judgment. (Fleek v. ZilThaver, 117 Pa. 213.) For a wife's rights to mortgage sole and separate use property without joinder of her husband, see Section 35. 116. MINORS. The mortgage of a person under twenty-one years is not void but voidable. After maturity he can disaffirm and obtain a title free and clear of the mortgage without re-paying the mortgage debt, but he must do so promptly or else the law will assume a ratification. Where a minor buys property subject to a mortgage, or gives a purchase money mortgage, he is considered as ratifying the mortgage if he continues to hold the land after reaching maturity. In other words, he cannot affirm part of the transaction and disaffirm part. He can free himself from the mortgage debt by giving up the land, or! he can keep the land and assume the mortgage. {Kennedi/ w. Baker, 159 Pa. 146.) 117. OTHER PERSONS UNDER DISABILITY. With regard to other persons under disability such as lunatics, et al, it may generally be stated that their power Mortgages. 117 given by a vendee for the purchase price. In such case vey property. This has been already covered in Sections 30-32. By applying the rule that whoever cannot make a deed, cannot mortgage, the question as to whether such person has the right to mortgage is answered. 118. riDUCIARIES. If a fiduciary has the power given him, by the will or deed creating the trust, to sell, he is regarded as having also the power to mortgage without express mention of it. {Zane v. Kenned^/, 73 Pa. 182.) Conversely if he has no power to sell he has no power to mortgage unless that right is expressly given, except that he may make a pur- chase money mortgage when he has power to buy real property. {Gernert v. Albert, 160 Pa. 95.) A trustee without power to mortgage may, under some circum- stances, obtain such power by court decree under the Price Act. (See Sec. 203.) 119. CORPORATIONS. As set forth in Section 39, a corporation in so far as it has power to hold land may alienate as freely as an individual unless restricted by statute. One of the re- strictions by statute is the power to mortgage. This power has been restricted by law in Pennsylvania to the extent that certain conditions must be complied with in order for the mortgage to be valid. These restrictions have been passed mostly for the benefit of the stockholders. To avoid a reckless incurring of indebtedness, the constitution of the State of Pennsylvania, adopted 1874, directed, that "the stock and indebtedness of corporations shall not be increased except in pursuance of a general law nor with- out the consent of the persons holding the larger amount in value of the stock first obtained, at a meeting to be held after sixty days' notice given in pursuance of law." (Article XVII, Sec. 7, Constitution of Pennsylvania). By Act of April 22, 1905, P. L. 280, corporations are authorized to borrow money to any amount and in any 118 Conveyancing in Pennsylvania. manner, subject to the above constitutional requirements. Altliough the language of this Act is broad enough to cover corporations of both first and second classes, it prob- ably applies only to corporations for profit. Corporations not for profit are authorized by Act of June 25, 1901, P. L. 599, "to borrow money and secure any indebtedness (i. e. to mortgage) created by it by issuing bonds not to exceed the sum of f500,000.00 Avith or without interest coupons attached thereto and to secure the same by mort- gage or mortgages, for the use of its bondholders upon its property real and personal, and its franchises, but no such bond or indebtedness shall bear a rate of interest exceed- ing six per centum per annum." If the mortgage is, however, only to secure an existing indebtedness, obviously the special consent of the stock- holders is not required. [AM v. Rhoads, 84 Pa. 319). And a corporation may buy property subject to a mortgage or give a purchase money mortgage without the above constitutional requirements. (Potoell v. Blair, 133 Pa. 550). Title companies, however, usually require compli- ance with these requirements in all cases of corporate mortgages, however small. 120. CORPORATION MORTGAGE TO SECURE BOND ISSUE. If the mortgage of the corporation is made to an indi- vidual mortgagee, the form of the mortgage and bond and warrant is similar to an individual's mortgage. (See Appendix, Form 56, page 554.) Where, however, the mortgage is made by a large corporation for the purpose of raising a large amount which n,o single individual will loan, the mortgage is made to a trustee for the benefit of bondholders and the amount divided among a number of individuals. Suppose a corporation desires to borrow 1100,000.00 and to secure it by a mortgage against its property; this amount is divided into 100 bonds of $1,000.00 Mortgages. 119 each. Each individual receives one bond for every $1,000.00 he advances. Suppose 100 individuals each put up |1,000.00. Obviously the corporation cannot execute a mortgage to each. It therefore, executes one mortgage for 1100,000.00 to a trustee who represents all the bond- holders. If default is made in the payment of the principal or interest any bondholder may demand that the trustee proceed to foreclose and if the trustee neglects to do so the bondholder may by appropriate proceedings in court compel a foreclosure and sale. 121. KINDS OF MORTGAGES. PURCHASE MONEY MORTGAGE. A purchase money mortgage, as its name indicates, is a mortgage given by a purchaser of real estate for a part of the purchase price. It must be delivered at the same time as the deed. {Cake's Appeal, 23 Pa. 186.) But it is not necessary that it be given to the vendor. It may be given to anyone who furnishes a part of the purchase price or to any nominee to whom the vendor assigns his right to receive such a mortgage. For form of such assignment. ( See Appendix, Form 17, page 456. ) It is good practice to use such assignment in all cases where a purchase money mortgage is given to a third person who advances the money and to recite the fact of the assignment in the mort- gage, but this is not necessary. Purchase money mortgages have certain special rights of priority. Thus a purchase money mortgage can be recorded any time within thirty days of its delivery (orig- inally sixty days under earlier acts ) , and when so recorded the lien dates from the time of delivery. (Act of May 28, 1915, P. L. 631.) Thus, if a purchase money mortgage is recorded within thirty days it is not discharged by sale of the property under a judgment entered before the record- ing but after the date of the mortgage. {Bratton's Appeal, 8 Pa. 164. ) And a purchase money mortgage given Janu- ary 1st and recorded January 30th, would have priority 120 Conveyancing in Pennsylvania. over an ordinary mortgage given January IStli and re- corded the same day. If two mortgages are given for pur- chase money and both recorded within thirty days, although on different dates, neither is prior tt» the other, and a sheriff's sale on one discharges the other. In such cases it is often expressly provided in one of the mortgages that it is subsequent to the other. (See Sec. 127.) A purchase money mortgage is prior to judgments against the purchaser entered after he acquired the equitable title and before he acquired the legal title. {Cake's Appeal, 23 Pa. 186. ) This is true even though the judgment is for money advanced to make cash payment on the property. {Pear- son V. Hoovler, 44 C. C. 596.) When the mortgage is given to the vendor it is not necessary to show on its face that it is for purchase money. This fact can be shown by oral evidence. ( CommonwealtK Title Co. m. Ellis, 192 Pa. 321.) When it is given to a third party, such as a Building Association, it is necessary to state in the mortgage that it is for purchase money in order to obtain priority from the date of delivery. {Alhright v. Lafayette Building Assn., 102 Pa. 411.) The reason for the distinction is that in the former case the fact that the mortgage is given to the vendor is sufficient notice that it is probably for purchase money; whereas in the latter case there is not such implied notice and subsequent mortgagees who recorded first might be deceived into thinking that they had a prior lien. Oral evidence can be used to show that a mortgage al- though stated to be for purchase money is not so in fact. {Hendricksons Appeal, 24 Pa. 363.) 122. ADVANCE MONEY MORTGAGES. A mortgage may be given to secure advances or loans to be made in the future. Such mortgages are known as "advance money mortgages" or mortgages to secure future advances. They are commonly used by builders to raise money in gradual installments to finance a building opera- Mortgages. 121 tion. Although it is probably necessary to state that the mortgage is to secure future advances it is not necessary to state the amount nor to set forth the agreement between the parties as to the advances. The mortgage is valid whether the advances are made to the mortgagor or to the contractor or other person designated by him. If the mortgagee is not under obligation to make the advances the lien for each loan dates only from the time of the loan. ( Bank of Montgomery's Appeal, 36 Pa. 170. ) If, however, he is under obligation by con,tract to make the advances his lien for all the money loaned dates from the time of recording the mortgage. {DaJilem's Estate, 175 Pa. 444). The reasons for the distinction are obvious. In the former case there is no consideration for the mort- gage until an advance is actually made. Since the mort- gagee can withhold a loan if he desires, he is not prejudiced by other and prior liens intervening between the date of the mortgage and the date of the loan. In the latter case the mortgagee is bound by contract from the time of the mortgage and cannot withhold a loan, — hence it would be unjust to allow other liens after the contract and mort- gage to have priority. An ordinary mortgage cannot be kept alive as security for renewal notes, unless such is expressly provided for. {Ayres v. Wattson, 57 Pa. 360.) Until the decision of Page v. Carr, 232 Pa. 371, the Mechanics' Lien Law (Act of June 4, 1901, P. L. 431, Sec. 13 ) gave mechanics' liens a preference over advance money mortgages as far as the newly-erected buildings or im- provements were concerned. The Supreme Court, how- ever, in the case just cited held such preference unconsti- tutional and void, as being in conflict with Section 7, Article III of the Constitution forbidding special legis- lation. Mechanics' liens, therefore, are now in no better position than other subsequent liens or encumbrances, and the priority of advance money mortgages covers not only the land but the newly erected buildings and improvements as well. 122 Conveyancing in Pennsylvania. 123. ABSOLUTE DEED AND SEPARATE DEFEAS- ANCE. Persons may desire for some reason to create a mort- gage by absolute conveyance in fee simple with a collateral agreement whereby the mortgagee promises to re-convey the property upon payment of the debt. A common motive is a desire to keep the mortgage secret and yet to give the mortgagee ample protection. Since the Act of June 8, 1881, P. L. 84 as amended by Act of April 23, 1909, P. L. 137, such a separate agreement or "defeasance" is void unless in writing. As between the parties it need not be recorded but as against subsequent purchasers or mort- gagees the Act provides that it is void unless acknowledged and recorded. 124. VENDOR'S LIEN. A situation so^ analogous to a mortgage that it can properly be called an informal mortgage is where a pur- chaser under a contract of sale takes possession and the vendor retains title as security for the purchase price. In substance the rights of the parties are very much the same as though the purchaser had taken a conveyance and had given back a purchase money mortgage. (See Sec- tions 58 and 104-5.) The interest of the vendor is con- sidered as personalty — the right to collect a debt — and he holds title only as security for the debt. The interest of the purchaser, however, is realty, and his position is substantially the same as that of a mortgagor. In many states, such a method of financing a real estate sale is very common, the purchaser giving long term notes, maturing at different times. If the vendor gives a deed before receipt of the full pur- chase price he does not have a vendor's equitable lien for the unpaid purchase price as is true in some states. {Kauffelt V. Bower, 7 S. & R. 64.) Mortgages. 123 125. EQUITABLE MORTGAGES. An equitable mortgage, says Fallon ( Pennsylvania Law of Conveyancing 383), is a lien of such a nature as will be recognized in equity as a security for the payment of money and will be treated as a mortgage. Like other equitable charges it will only be enforced against the party whose action gives rise to it or those who take the land with notice of it or take the land without giving a valuable consideration therefor. Bona fide purchasers for value without notice and subsequent legal mortgagees for value will not be effected by these equitable liens. In E!Qgland, an equitable mortgage can be created by merely depositing the title deeds with the mortgagee, but not in Pennsyl- vania nor generally anywhere in this country. {Shits v. Dieffenbach, 3 Pa. 233.) The only kinds of equitable mortgages that exist in Pennsylvania are such as may be implied by a court of equity from the nature of the trans- action between the parties or where on account of some informality in the execution of the instrument it cannot operate as a legal mortgage or be inforced as such. 126. FIRST MORTGAGES. Mortgages are customarily referred to either as first or second, according to their priority. As the name implies, a first mortgage is a first lien upon the property incum- bered. If given at the time of the execution of the deed for a part of the purchase price it becomes a purchase money mortgage as set forth in Section 121. A first mort- gage is regarded as the safest and most desirable kind of investment. Trust funds are permitted by law to be in- vested in them. 127. SECOND MORTGAGES. SECOND MORTGAGE CLAUSE. A second mortgage is precisely the same as a first mort- gage except that it is subject to a prior lien, on the prop- erty mortgaged. It, of course, follows that it is not as 124 Conveyancing in Pennsylvania. good a security as a first mortgage unless there is ample margin between the aggregate amount of the mortgages and the market value of the property. Ordinarily it is not necessary to recite the fact that the mortgage is under and subject to an existing mortgage, but it is customary to insert in the second mortgage directly after the recital a clause as follows : "Under and subject nevertheless to the payment of a certain mortgage debt or principal sum of | with interest thereon as the same may become due and payable." There is, however, one very important exception to the rule just stated, and that is where the two mortgages are given by a vendee for the purchase price. In such case both are purchase money mortgages, and as such, equal liens if recorded at any time within thirty days after exe- cution. To guard against this, one mortgage often stipu- lates that it is not a purchase money mortgage and is to be a second lien. A clause similar to the following is generally used for this purpose and is known as the sec- ond mortgage clause. "Being the same premises which Andrew Black by indenture dated the 12th day of January, A. D. 1922, and intended to be recorded, granted and conveyed to the said mortgagor in fee. And it is hereby expressly certified and declared that this is not a purchase money mortgage and that it is subject both in lien and payment to a cert,aim, mortgage to secure the payment of ($3,500.00) with interest as therein mentioned, given by said mortgagor to Isaac Thomas, dated January 12, A. D. 1922, and intended to be fortMcith recorded; and that the lien of said first mortgage shall not be affected or impaired by a judicial sale under a judg- ment recovered upon this present indenture or upon the bond secured hereby; but any such sale shall be expressly advertised and made subject to the lien of the smd first mortgage." Mortgages. 125 This clause is inserted as the recital in the conveyance part of the mortgage. Following the habendum is inserted this clause: "Under and subject both in lien and payment to a certain mortgage to secure the payment of |3,500.00 given by the mortgagor to Isaac Thomas, dated Jan- uary 12th as above fully set forth." These clauses must always be inserted when two mort- gages are given at the same time for purchase money and it is intended that one shall be prior to the other. The second mortgage must then be dated and recorded sub- sequent to the first mortgage. It will be seen that the effect of this clause is to expressly disavow the implication that it is a purchase money mortgage and to declare it to be subject both in lien and payment to the designated first mortgage. 128. BUILDING AND LOAN ASSOCIATION MORT- GAGE. For a discussion of the important subject of Building and Loan Association Mortgages see Chapter XX, Sec- tions 363 to 366. 129. ASSIGNMENT OF MORTGAGES. METHODS AND FORM OF ASSIGNMENT. A mortgage like any other chose in action may be as- signed and the assignee may sue on the bond or foreclose on the mortgage with equal effect as the original mort- gagee. An assignment may be involuntary as in bank- ruptcy or intestacy or it may be by voluntary act of the mortgagee. No particular form is necessary for an assignment. An oral assignment is valid and an assignment of the debt carries with it the mortgage even though the mortgage is not mentioned. (Craft v. Webster, 4 Eawle 242.) To vest complete legal title in the assignee and enable him to sue in his own name the assignment must be by a sealed 126 Conveyancing in Pennsylvania. instrument and witnessed by two witnesses (Act of May 28, 1715, Sec. 8, 1 Sm. 90), or duly acknowledged and recorded. {Pry or v. Wood, 31 Pa. 142.) Otherwise the assignee must sue in the name of the assignor to his (the assignee's) use. 130. ASSIGNMENT OF FRACTIONAL PORTIONS. It is possible for the mortgagee to split the mortgage up into two or more parts and assign the several parts to different persons. In such a case the assignees are con- sidered as joint owners of a single mortgage and they share equally (or pro rata if the portions are of different amounts) in, the proceeds of a foreclosure, irrespective of the time of the assignments. This rule of equality pre- vails, although the mortgage debt is evidenced by bonds maturing at different times and the bond first assigned is the first to mature. {Donley v. Hays, 17 S. & R. 400.) The assignor himself, if he retains a portion, has equal rights with his assignees {Patrick's Appeal, 105 Pa. 356), unless he guarantees payment of the assigned portion, in which case the assignee has priority in the distribu- tion of the proceeds of a foreclosure sale. {Fourth Na- tional BanWs Appeal, 123 Pa. 473.) In the latter case the priority of the assignee is lost if the assignor later sells the retained portion tO' another assignee, although the assignor of course remains personally liable on his guarantee. {Hancock's Appeal, 34 Pa. 155.) 131. RIGHTS OF ASSIGNEE AGAINST ASSIGNOR. The liability of an assignor depends upon the nature of the debt and the character of the assignment. If the debt is evidenced by a promissory note or other negotiable instrument, the endorsement of the note makes the en- dorser personally liable as surety. Such liability can be avoided by adding to the endorsement the words "without recourse." Mortgages. 127 If the debt is evidenced by a bond (as is customary in Pennsylvania) or other non-negotiable chose in action, an assignment does not make the assignor liable for the debt as surety, unless he expressly guarantees payment. The law implies certain warranties, however, in every assignment, even, in the absence of an express guarantee. An assignor is bound by an implied warranty that the lien is co-extensive with the description contained in the mortgage. Thus, he is liable in damages for any loss which the assignee may suffer by reason of an unrecorded release by the assignor of part of the premises. {Lieher- man v. Reichard, 7 North., 237.) And an assignor im- pliedly warrants the genuineness of the execution by the mortgagor. {Reineman v. Moon, 29 Pitts. L. J. (0. S.) 167.) 132. RIGHTS OF ASSIGNEE AGAINST MORTGAGOR. An assignment carries with it all the rights which the original mortgagee had and may cany more. The assignee can hold the mortgagor personally liable on the bond or he can foreclose on the property. He can collect the full amount which the mortgagee could have collected regard- less of the reduced price he may have paid for the assign- ment. The question of chief importance is whether the mortgagor cau assert against the assignee all the defenses which he would have had in a suit by the original mort- gagee. If the mortgage debt is evidenced by a promissory note or other negotiable instrument, an assignment for value and before maturity to a bona fide holder of the note who has no actual notice of any defenses cuts off these defenses. {Welton v. Littlejohn, 163 Pa. 205.) In other words the assignee in such a case may acquire more rights than the original mortgagee had. If the debt is evidenced by a bond or other non-negoti- able instrument, the rule is different. In such a case the assignee merely steps into the shoes of the assignor, and 128 Conveyancing in Pennsylvania. acquires only the rights which the assignor had. The mortgagor can assert against the assignee all defenses which he could have asserted against the original mort- gagee. These defenses are called "equities" since they were originally valid only in a court of equity. Among such possible defenses are the following: (a) Payment to the original mortgagee of the whole or any part of the debt. Such a payment is a valid defense even if made after the assignment, provided the mort- gagor had no knowlede of the assignment. (Horstman v. Gerker, 49 Pa. 282; O'Maley v. Pugliese, 272 Pa. 356.) (b) Set off. If the mortgagee were indebted to the mortgagor, even in an entirely separate transaction, the amount of this claim could be set off against the mortgage, and hence the value of the mortgage held by the mortgagee would be only the difference between the two debts. Upon assignment, the assignee takes only what the mort- gagee had — namely, the mortgage debt subject to the set off. ( Oeiger v. Peterson, 164 Pa. 352. ) (c) Lack or failure of consideration is always a defense against a mortgagee and hence against an assignee also. ( CarotJiers v. Sims, 194 Pa. 386 ) . In the cases where an assignee has not been bound by such a defense, an element of estoppel against the mortgagor was present. ( See John- son V. McCurdy, 83 Pa. 282.) (d) Illegality of consideration. {Riddle v. Hall, 99 Pa. 116.) (e) Collateral agreement between mortgagor and mort- gagee made at the time of the mortgage. Thus, for ex- ample, if the mortgagee agreed not to assign the mort- gage, an assignee takes nothing. {Myerstown Bank v. Roessler, 186 Pa. 431 ; see also Anderson v. Kern, 259 Pa. 81.) 133. DECLARATION OF NO SET-OFF. It is obvious that mortgages could rarely be assigned except at a speculative price unless assignees could pro- tect themselves against the possibility of such defenses. Mortgages. 129 Such protection is acquired by procuring from the mort- gagor a statement that he has no defenses to the mortgage. This is called a "declaration of no set-off." The mort- gagor is bound by his statement under the doctrine of "estoppel"— a salutary doctrine which prevents a person under certain circumstances from later repudiating a statement or an act upon which another person has relied. No particular form is required but there is a customary form, printed copies of which can be obtained from any legal stationer. (See Appendix, Form 19, page 458.) The mortgagor cannot be required to sign such a declara- tion, but when there are no defenses, mortgagors are usu- ally willing to do so upon being made to understand that they are not prejudicing their rights in the slightest. If the mortgage is due, and the mortgagee wishes his money, an assignment is the easiest method of re-financing, and the mortgagor is usually very willing to facilitate the assignment. The declaration of no set-off is a protection only to such persons as need the protection, — i. e., those who have paid value for the assignment with no knowledge of any defense. One who is not a purchaser for value or one who has actual knowledge of a defense, is not protected and takes only the rights which the mortgagee had. {AsMon's Appeal, 73 Pa. 153.) 134. RIGHTS OF SECOND ASSIGNEE AGAINST MORTGAGOR. A second assignee also takes subject to equities between the original mortgagee and the mortgagor. But the rule is not carried further and the second assignee is not bound by a set-off which the mortgagor may have had against the first assignee. {Blair v. Mwthiott, 46 Pa. 262; Reineman V. Robb,98 Pa. 474.) If the mortgagor gave a declaration of no set-off to the first assignee, such declaration is available, to all subse- quent assignees. This is true even though the subsequent assignees are not purchasers for value or even though 9 130 Conveyancing in Pennsylvania. they have knowledge of some defense. To hold otherwise would limit the first innocent purchaser for value in his opportunity to sell the mortgage. {Ashton's Appeal, 73 Pa. 153.) 135. RIGHTS OF ASSIGNEE AGAINST OTHER PERSONS. In general an assignee for value, without notice, takes the mortgage clear of all equities of persons other than the mortgagor. These are called secret equities, and it is just that the assignee should not be bound by them since he could not ordinarily discover them nor protect himself by a declaration of no set-off. Thus if the original mort- gagee held the mortgage in trust and assigned it in de- fraud of the beneficiary, the assignee, if he had no knowl- edge of the trust, takes free and clear of the equitable ownership of the beneficiary. {Mott v. Clark, 9 Pa. 399.) If the original mortgagee after an assignment wrong- fully satisfies the mortgage of record, a purchaser of the land from the mortgagor takes free and clear of the mort- gage. {Roberts V. Halstead, 9 Va. 32 Sit 35.) The assignee should protect himself from such a possibility by record- ing the assignment. If he acts before a sale of the prop- erty he can have the wrongful satisfaction stricken off by court order. If the original mortgagee is left in possession of the mortgage papers after an assignment which is unrecorded, and later he fraudulently assigns the mortgage to another, the later assignee takes a good title to the mortgage. The prior assignee should protect himself by either record- ing the assignment or by securing the mortgage papers, either of which is sufficient notice to the second assignee. (Brumhach v. McLean, 196 Pa. 321.) 136. RECORDING THE ASSIGNMENT. An assignment may and should be recorded, although it is less essential than the recording of deeds and mort- gages. An unrecorded assignment is valid except as to MOETGAGES. 131 persons who may be deceived by the failure to record. An unrecorded assignment is valid as against the mort- gagor or purchasers of the land from the mortgagor. As to the necessity for recording as against a subsequent assignee of the same mortgage from the mortgagee, or as against purchasers of the land after the mortgagee has wrongly entered satisfaction of record, see the preceding section. It is important to note that recording an assignment is not notice to the mortgagor so as to prevent him from obtaining credit for payments made to the mortgagee after the assignment but before he had knowledge of it. {Foster V. Oarson, 159 Pa. 477. ) It would be an intolerable hard- ship if mortgagors should be forced to search the record every time they wished to pay either interest or principal, in order to ascertain the proper party to receive pay- ment. It is the simple and easy duty of the assignee to give actual notice to the mortgagor of the assignment. The declaration of no set off usually recites that such notice has been received. (See Appendix, Form 19, page 458.) 137. SALE OF PROPERTY SUBJECT TO A MORT- GAGE. GENERALLY. We have been considering the three-cornered situation when the mortgagee assigns his interest. We shall now consider another three-cornered situation when the mort- gagor assigns his interest, i. e., when he conveys the mortgaged property. 138. RIGHTS OF MORTGAGEE AGAINST THE MORTGAGOR (VENDOR) AFTER SALE OF THE PROPERTY. It is obvious that the mortgagor cannot avoid his per- sonal liability on the debt by a sale of the property. The mortgagee can waive a proceeding against the property and can hold the mortgagor liable for the whole amount of the debt. Or he can foreclose on the property and hold the mortgagor liable for a deficiency if any. 132 Conveyancing in Pennsylvania. 139. AVOIDING PERSONAL LIABILITY OF MORT- GAGOR BY USE OF STRAW MAN. It is to avoid this personal liability on the bond that mortgages are sometimes made by a so-called "straw man." That is, if a responsible person desires to have a mortgage placed upon his property or properties he is about to buy, without personal liability, he causes the property to be con- veyed to some person without financial responsibility, the straw man. This straw man then executes the mortgage and bond and warrant to the mortgagee, and conveys the premises, subject to the mortgage thus created, to the real owner. In this way only the straw man is liable on the bond and warrant. This method of protecting oneself from personal liability on a mortgage is usually practiced by persons who deal extensively in real estate. Such men from the very nature of their business cannot afford to be personally responsible for the payment of the principal of a mortgage after they have conveyed away the prop- erty, as they would be, for the term of the mortgage, if they executed the bond. The Act of April 28, 1903, P. L. 327, however, pro- vides a method by which a mortgager who has parted with the title to the mortgaged premises may call in his bond and warrant after expiration of the term of the mortgage. Under this Act he must first tender the mortgagee ( or his assignee or whoever may be the holder of the mortgage ) the full amount of the mortgage principal with interest to day of tender, and demand that the mortgage be assigned to him. Upon refusal of the holder of the mortgage to accept tender and comply with the demand, the mortgagor may petition the court for a decree relieving him of all personal liability under the bond and warrant. Thereafter the holder of the mortgage must look solely to the land as his security. The decree obtained by the mortgagor may be indexed at the prothonotary's office and noted on the margin of the record of the mortgage at the Recorder of Deed's office. Mortgages. 133 140. RIGHTS OF MORTGAGEE AGAINST PUR- CHASER. The mortgagee, of course (provided Ms mortgage was recorded), may foreclose and cause the purchaser's land to be sold. He cannot, however, hold the vendee person- ally liable for a deficiency unless the purchaser in writing expressly assumed such liability. The Act of June 12, 1878, P. L. 205, provides that accepting a deed with the words "under and subject to the payment" of a mortgage shall not be considered as such an assumption of personal liability. This Act further provides that, even where the purchaser expressly assumes such liability, the liability shall not continue after he has parted with the property, unless he expressly assumes such a continuing liability. When such personal liability is expressly assumed, it has been held that he cannot avail himself of any defenses which the mortgagor could have employed. His engage- ment seems absolute. ( Old Colony Trust Co. v. Allen-town, etc. Transit Co., 192 Pa. 596.) 141. RIGHTS OF VENDOR (MORTGAGOR) AGAINST PURCHASER. Upon sale of mortgaged property, the purchaser, even though he does not expressly assume the debt, becomes liable to reimburse the vendor for any payment which the vendor may be forced to make. ( See Dobhin v. Landsberg, 273 Pa. 174, for a recent review of the reasons for this rule.) It is obviously just that a vendor who has been forced to pay the whole mortgage debt should be subro- gated to the rights of the mortgagee in the land itself and should be able to get reimbursement by foreclosing upon the land. The law, however, allows the vendor to recover from the vendee a deficiency over and above the value of the land. {Mays Estate, 218 Pa. 64. ) This case was a great surprise to those interested in real estate law since it had been assumed that the above Act of 1878, P. L. 205, absolved the grantee from all personal liability as to both grantor and mortgagee, so that in the event of a fore- 134 CONVEYANCIKG IN PENNSYLVANIA. closure tlie grantee's liability was limited to tlie value of the land. This case holds otherwise and decides in sub- stance that the Act of 1878 merely bars the mortgagee or subsequent holder of the mortgage from proceeding di- rectly against the grantee, but that "the grantee is liable to the grantor if the grantor is compelled to make good to the mortagee the difference between what the land brings and the value of the mortgage." The effect of the decision is to permit the mortgagee to accomplish indirectly what he cannot do directly — that is, fasten ultimate liability upon the grantee by suing the grantor who in turn can sue the grantee and recover from the grantee what he, the grantor was compelled to pay the mortgagee. The situation is un- fortunate and an act of the legislature is sorely needed to absolve the grantee from personal liability on the encum- brance. Until such act is passed the only method by which a grantee can avoid personal responsibility is to insist on a release of this liability from a grantor when taking title. Such a release may be in the form of a contract that lia- bility is limited to the property. {Neville v. Kretzschmar, 271 Pa. 222. Although the vendor, after having the paid the debt or a part of it can sue the purchaser, the Act of 1878 is ade- quate in its language to prevent a suit by the mortgagee against the purchaser in the name of the vendor. [Smith V. Danielson, 45 Pa. Superior Ot. 125. ) The position of the vendor is considered as that of a surety, and he can sue the purchaser only for what he (the vendor) has actually paid out. The mere entry of judgment against the vendor is not sufficient. {Kearney V. Tanner, 17 S. & R. 94. ) The vendor is discharged if the property is released from the lien. {Hunters Estate, 257 Pa. 32.) But it is a special form of suretyship and all the usual rules for the protection of sureties do not applyt Thus the vendor is not discharged by an extension of time on the mortgage granted to the purchaser. {Brecht v. Bialas, 19 Pa. Dist. Rep. 664.) Mortgages. 135 142. SALE OF MORTGAGED PROPERTY IN PARTS. If mortgaged property is divided and one part sold for its full value without any pro rata deduction for the mort- gage debt, the law implies an agreement ibetween the vendor and the purchaser that the part retained by the vendor shall be liable first for the mortgage debt. The mortgage, of course, still continues as a lien upon the part sold, but the purchaser can compel a foreclosure upon the other part first, and his part becomes liable only in case the proceeds of the first sale are insufflcient. {Mevey's Appeal, 4 Pa. 80.) Or if the purchaser allows his lot to be sold on foreclosure he is subrogated to the rights of the mortgagee against the other lot and can get reimbursement for the loss he has suffered. This rule applies when two or more parts are sold to different per- sons, and the parts are liable in the inverse order of their sale, — i. e., the one sold first is liable last, etc. {'Nailer v. Stanley, 10 S. & E. 450; Martvn/s Appeal, 97 Pa. 85.) If a second mortgage is placed on lot one, this second mort- gagee has the same rights as a purchaser to compel the mortgagee to proceed first against lot two ; or if he suffers loss by reason of allowing a foreclosure upon lot one, he can get reimbursment for his loss out of lot two. {Mil- ligan's Appeal, 104 Pa. 503. ) If the purchaser or purchasers of prior parts take sub- ject to the mortgage, as disclosed by the reduced prices which they pay, the above rule naturally does not apply, and the several parts must bear the burden of the mortgage debt pro rata according to their respective values. {Car- penter V. Koons, 20 Pa. 222.) 143. RECORDING OF MORTGAGES. The Pennsylvania recording system and laws will be considered in a later chapter (Chapter IX) in which deeds, mortgages, and other instruments capable of being recorded will be considered. For the law of recording as applied to mortgages, see particularly Sections 184 to 187. 136 Conveyancing in Pennsylvania. 144. DISCHARGE OF A MORTGAGE. BY PAYMENT. Time of Payment. A mortgage must mature before either party can compel its discharge. This is true even though the mortgagor offers principal and interest to date of maturity. A mort- gage payable "within" or "in" a certain time gives the mortgagor the option of paying it at any time within that period. {Horstman v. Gerker, 49 Pa. 282; Patterson v. Judge, 17 W. N. C. 127.) If the mortgagee desires the mortgage to run for the full term, the following language should be used : "Payable at the expiration of from the date thereof." Building and Loan Association mortgages usually read that they are payable within one year, but the real intent of the parties is quite different and the mortgage debt is intended to mature and be can- celled when the stock matures, — usually in eleven and a half or twelve years. The Association cannot foreclose at the expiration of one year or at any time before the matur- ity of the stock unless the borrower is more than six months in arrears. (Act of AprillO, 1879, Sec. 5, P. L. 16.) The mortgagor, however, can pay off a Building and Loan Mortgage at any time. (Act of 1879, Sec. 4, P. L. 16; Winn V: Building Association, 20 Dist. Rep. 625. ) Proper Party to Receive Payment. Until the mortgagor has received notice of an assign- ment, the proper payee is the mortgagee or his lawfully authorized attorney or agent. As we have seen, the mere recording of an assignment is not sufficient notice. {Fisher V. Carson, 159 Pa. 477. ) Upon the death of the mortgagee the proper payee is his executor or administrator, and a mortgagor is protected in paying an executor whose letters have been revoked, who holds the mortgage papers. (Irwin V. Hfmthorn, 1 Pa. Superior Ct. 149.) It is sometimes said that inability to produce the mortgage papers is notice that a mortgagee no longer has the right to receive pay- ment (Jones on Mortgages, 5th Ed., Sec. 483) but there seems to be no Pennsylvania case so holding. As a matter Mortgages. 137 of practice the papers are not usually produced at least at the time of payments of interest or small installments of principal, and the mortgagor is undoubtedly safe in pay- ing the person originally entitled until he receives notice sufficient to raise a suspicion that some other person has become the proper payee. When a dispute arises as to who is the proper party to receive payment, the mortgagor may protect himself by petitioning the court for leave to pay the money into court. The court will then decide the question of the rights of the disputants and make a decree awarding the money to the one legally entitled, and pro- viding for the discharge and satisfaction of the mortgage — called a suit of "interpleader." 145. RIGHTS OF A THIRD PARTY WHO PAYS THE MORTGAGE DEBT. When a third party who has an interest in the mort- gage or is directly affected by it, pays off the debt, he impliedly becomes the assignee of the mortgage even with- out an express assignment. He acquires all the rights of the mortgagee and may foreclose in the name of the mort- gagee even against the latter's will. This form of assign- ment by implication or by operation of law is called "sub- rogation." A subsequent incumbrancer who pays off a prior lien becomes subrogated to the rights of the prior incumbrancer. (DeJicuware & Hiodson Co.'s Appeal, 38 Pa. 512.) An endorser of a note secured by a mortgage or a guarantor of the accompanying bond becomes subrogated upon paying the debt. ( Gossiti v. Brown, 11 Pa. 527. ) A life tenant who pays off a mortgage is subrogated. ( Craw- ford V. Carver, 16 Phila. 53) ; and also a lessee. {Dollar Savings Bank v. Duff, 269 Pa. 29.) Under the Act of June 24, 1885, P. L. 158, an assignment of a mortgage can be compelled upon payment to the mort- gagee of the amount thereof, in the following four types of cases : Where land belongs to a minor, when it is held for life, or in trust, or was obtained by descent. 138 Conveyancing in Pennsylvania, If one of several cotenantg pays the whole mortgage or any amount more than his share, he can collect from the other mortgagors their respective shares — called the right of "contribution." {Haverford Assn. v. Fire Assn., 180 Pa. 522.) If the third party is an entire stranger to the mortgage transaction, he acquires no right of subrogation by paying off the debt, unless he takes an express assignment. {Leg gate v. Korn, 74 Pa. Superior Ct. 383.) Thus a per- son loaning money to the mortgagor for the purpose of paying the mortgage debt is not subrogated to the rights of the mortgagee. ( Campbell v. Foster Assn., 163 Pa. 609. ) A mere tenant at will is considered as a stranger even though he has paid taxes and the interest on the mortgage. [McDonowgh v. Barnes, 77 Pa. Superior Ct. 334.) 146. SATISFACTION OF MORTGAGES. The act of discharging a mortgage of record is called its satisfaction. The person authorized of record to enter satisfaction — either the original mortgagee, an assignee, or an attorney in fact — produces the mortgage papers to the Eecorder of Deeds and signs a statement that the mortgage is satisfied, upon the margin of the book where the mortgage is recorded. A power of attorney may be given to any person to satisfy either a particular mortgage or any mortgage; this power of attorney must be re- corded. (See Appendix, Form 52, page 543.) A power of attorney to satisfy may be given to the Eecorder of Deeds and such a power is sufficient authority to the successor of the Recorder who is named in the power. (Act of April 28, 1915, P. L. 198.) All Banks, Trust Companies, Build- ing and Loan Associations and other corporation mort- gagees must record a power of attorney designating the person authorized to make assignments, enter satisfaction, or do any other act affecting the lien of the mortgage. (Act of May 24, 1921, P. L. 1071. ) An absolute duty rests upon the owner of a mortgage to satisfy upon receiving payment Mortgages. 139 of the debt and all charges. (Act of May 28, 1715, Sec. 9-10,1 Sm. L. 95.) If the satisfaction is wrongly entered — as, by a mort- gagee who has assigned — the holder of the mortgage can have the satisfaction stricken off by order of court. 147. SATISFACTION BY ORDER OF COURT. When the mortgagor is unable for some reason to obtain satisfaction by the owner of the mortgage, he can obtain a court order directing the Recorder of Deeds to enter satis- faction. (a) Where the holder has died. (Act of March 31, 1823,8 Sm. L. 131.) (b) Where the holder has gone out of the State. (Act of June 20, 1883, P. L. 138.) (c) Where there is a dispute between mortgagor and mortgagee the money may be paid into court, which prevents the mortgagor from being in default and stops tlie running of interest provided the decree of the court is favorable to the contention of the mortgagor. (Act of April 3, 1851, Sec. 14, P. L. 868.) (d) A mortgage' must be satisfied by the Recorder upon a certificate from the court that the bond and mortgage have been duly endorsed in the presence of two witnesses as satisfied and discharged. (Act of April 11, 1856, P. L. 304.) (e) A court order may be obtained when the holder refuses to satisfy or cannot be found. (Act of June 11, 1879, P. L. 141.) (f ) A presumption of payment from mere lapse of time arises when it appears that no payments of principal or interest have been made for twenty years. {Hart v Bucher, 182 Pa. 604. ) In such cases the mortgagor can obtain satis- faction by order of court. (Act of 1881, P. L. 97 ; Act 1895, P. L. 44.) 140 Conveyancing in Pennsylvania. (g) Where the mortgage papers are lost, mislaid or de- stroyed, the mortgagor can obtain an order for satisfaction upon proof of payment. (Act June 8, 1911, P. L. 717.) 148. RELEASE OF A MORTGAGE. Where a mortgage covers but one property and it is de- sired to release the lien against that property, the simplest way to do it is by satisfaction of the record. But it some- times happens that one mortgage is drawn to cover several properties and it is desired by the parties to relieve one property from the lien without relieving the rest. This is accomplished by what is called a Eelease of Mortgage. It may be oral {Ackla v. Ackla, 6 Pa. 228), although it is usually in writing. If it is under seal no consideration is necessary. {Wentz v. De Haven, 1 S. & R. 312.) The re- lease should be acknowledged and recorded in order to clear the title of the released premises. For form of a release see Appendix, Form 84, page 591. It must be remembered that a mortgagee is not bound to release any part of the mortgaged premises without the payment of the entire principal. {Home Bldg. Assn. v. Troth, 3 Del. Co. 169. ) In other words, if a mortgage of $1,000.00 covers two properties the mortgagor cannot tender $500.00 and demand the release of one property. The giv- ing of a release is always an act of accommodation on the part of a mortgagee and may or may not be for a consider- ation. But a release taken from a trustee should always be for a valuable consideration lest the trustee be exceeding his trust powers in giving the release in which event the release would be void as to the cestui que trust. {Kirk's Appeal, 87 Pa. 243.) Sometimes there is given what is called a blanket mort- gage or a mortgage which covers a large tract of land con- sisting of a number of separate lots. If an agreement be made at the time this mortgage is made that the mortgagee will release from time to time separate lots from the lien of his mortgage, as sold, upon the receipt of the proportionate MOETGAGES. 141 share of his mortgage, such an agreement is binding and the mortgagor can compel the release of the lien of the mortgage from the lots sold, upon tender of the proportion- ate share of the mortgage. But unless such agreement is made the mortgagor cannot compel the mortgagee to release any part without tender of the whole mortgage debt. In connection with such a division of mortgaged prop- erty into parts which are sold it is important to note the following doctrine. If the purchaser of the first part pays full value without a pro rata deduction for the amount of the mortgage and the mortgagee releases the remaining part, the part first sold is also released by operation of law. (Schrack v. Shriver, 100 Pa. 451.) This is because of the doctrine (see section 142) that the remaining part is con- sidered as primarily liable and the usual rule of surety- ship applies, — namely, that a release of the primary obli- gation discharges the secondary obligation. The rule only applies when the mortgagee knew of the sale. If the value of the part released was not as great as the mortgage debt, the other part is released only up to the extent of such value. The above doctrine also applies in two other cases: 1. When one part only of mortgage property is subject to a second mortgage or other lien, the owner of the second lien can prevent a release of the other part from the first mort- gage by notifying the first mortgagee not to make such re- lease. (Hart V. Anderson, 198 Pa. 558. ) This is because of the injustice to the second mortgagee of throwing the entire burden of the first mortgage upon his portion of the prem- ises. 2. When property is sold subject to a mortgage, the mortgagee cannot release the mortgaged property or any part of it without also discharging, by operation of law, the personal liability of the mortgagor. {Meigs v. Tunni- cUffe, 214 Pa. 495. ) This is because the mortgagor after a sale, is only surety for the payment of the debt. ( See sec- tion 141.) 142 Conveyancing in Pennsylvania. 149. DISCHARGE BY MERGER. When the title to the land and the mortgage become vested in the same person, the mortgage is usually dis- charged by the merger. {Kennedy v. Borie, 166 Pa. 360.) A merger, however, does not necessarily discharge a mort- gage and it can be shown that there was an intention to keep the mortgage alive. ( Carrow v. Headley, 155 Pa. 96. ) A mortgage once discharged by merger cannot be revived by a subsequent assignment. {Rushton v. Lippincott, 119 Pa. 12.) 150. DISCHARGE BY JUDICIAL SALE. The final method of discharge of a mortgage is by a sheriff's sale on the instrument itself or on some prior lien, or by decree of the Orphans' Court. This subject will be considered more fully in section 205. It is sufficient here to note the following general rules : 1. A sale on the mort- gage itself always passes a title free and clear of the mort- gage, and the holder of the mortgage must look to the pro- ceeds of the sale in the hands of the sheriff. 2. The same is true if the sale is on any lien that is prior to the mortgage. 3. If the sale is on a subsequent lien the mortgage is not discharged if the mortgage is a first lien, or has ahead of it nothing but other mortgages, ground rents, municipal liens or taxes. 151. REMEDIES OF MORTGAGEE UPON DEFAULT BY MORTGAGOR. The mortgagee has a choice of three remedies. He may proceed by way of ejectment to recover possession of the premises ; he may proceed upon the bond ; or he may fore- close the mortgage by a scire facias proceeding. (McGall V. Lenox, 9 S. & E. 302. ) The first remedy is rarely used. The second is often a more expeditious and satisfactory procedure than a foreclosure, — especially where the usual warrant of attorney to confess judgment accompanies the bond. Mortgages. 143 The warrant of attorney is an instrument which pro- vides the person with a short cut to obtain judgment. Ordi- narily to recover money due a suit must be instituted which if contested may result in some time before a judgment can be recovered, and even if uncontested, it takes about three weeks before judgment can be entered. Obviously an in- strument which enables a judgment to be placed on record instantly without any delay whatsoever is of immense ad- vantage, especially if it is desirable to beat out, in order to obtain a prior lien, some other creditor who is suing to obtain a judgment. A warrant of attorney is therefore a valuable addition to the bond and proceedings thereon afford a complete remedy exclusive of the mortgage pro- ceedings. A judgment so entered becomes a general judg- ment lien not only against the mortgaged premises but against all the property owned by the mortgagor at the time the judgment is entered. If the mortgaged property is insufficient to cover the en- tire debt, it is very important to obtain the earliest pos- sible lien upon any other real estate, which the mortgagor may own. Even though he owns no other real estate, it is important and necessary to enter a judgment in order to issue execution against his personal property. Even in cases where the mortgage premises are sufficient to pay the debt it is considered by many attorneys to be more expe- ditious to proceed upon the personal judgment against either the personal or real property of the mortgagor. No disadvantage is suffered by such a procedure since the lien of the judgment, as regards the mortgaged property, relates back to the time when the mortgage was recorded. {Hartz V. Woods, 8 Pa. 471; De Witfs Appeal, 76 Pa. 283; O'Maley v. Pugliese, 272 Pa. 356.) 152. FORECLOSURE BY WRIT OF SCIRE FACIAS. This procedure is a peculiar form of Pennsylvania prac- tice that originated in Colonial days when Pennsylvania had no courts of equity. Among the many equitable reme- 144 Conveyancing in Pennsylvania. dies that were administered under common law forms and procedure was the foreclosure of a mortgage. By the Act of January 12, 1705, section 6, 1 Sm. L. 59, the legislature provided that a writ of scire facias might be issued requir- ing the mortgagor to show cause why the land in question should not be sold in satisfaction of the mortgage debt. The act required the passage of one year after default be- fore the writ could issue but this limitation is waived in the usual form of mortgage. No demand for payment is necessary nor must the mortgagee give prior notice to the mortgagor that he expects to foreclose ; the service of the writ is sufficient notice. {AtMnson v. Walton, 162 Pa. 219.) If the property has been sold or for some other reason is in the possession of some other person than the original debtor that person must be joined and served with a copy of the writ. Such person is called the terre-tenant. The mortgagor or terre-tenant may appear and enter a defense if they have any, but in the absence of such de- fense judgment can be entered at the expiration of fourteen days from the return day, against the mortgagor and terre- tenant for the amount of the debt with interest, and the additional attorney's commission, if such is provided for in the mortgage. This is not a judgment which binds the mortgagor personally, but is a so-called judgment in rem or de terris binding only the mortgaged property. Execu- tion upon such a judgment is by a writ of levari facias under which the property is sold by the sheriff. Out of the proceeds are paid first all expenses of the sale including a special form of Title Insurance known as a Distribution Policy which protects the sheriff in distributing the pro- ceeds. All liens discharged by the sale are then paid off in the order of their priority and the balance, if any, paid to the mortgagor or any other person who has succeeded to his rights. CHAPTER VIII. Ground Eents. Section Page 153. Definition and History. 145 154. rorm and Analysis of Ground Eents 147 155. Parties to a Ground Eent 149 156. Nature of a Ground Eent 149 15Y. Irredeemable Ground Eents 150 158. Eedeemable Ground Eents 151 159. Apportionment of Ground Eents 152 160. Personal Liability of Subsequent Grantees. 152 161. Lien of Ground Eents and Arrearages of Eent 154 162. Discharge of Ground Section Page Eents by Extinguish- ment 154 163. Discharge by Merger. . 155 164. Discharge by Order of Court after Lapse of Twenty-one Years. . . 155 165. Discharge by Judicial Sale 156 166. When and How Eent Must Be Paid 157 167. Collection of Eent by Distress 157 168. Eemedy by Eeentry ... 157 169. Eemedy by Action of Ejectment 158 170. Eemedy by Action of Assumpsit 158 171. Mortgages and Ground Eents Compared .... 159 153. DEFINITION AND HISTORY. The meaning of ground rent is generally misunderstood more than any other term in the science of conveyancing, and this is in a great measure due to its inappropriate name, which leads most people to believe it to mean rented ground. The idea that a man who pays ground rent does not own the ground in fee is as unfortunate, as it is erro- neous. The real meaning of the term ground rent is best ex- plained by briefly developing its history. In early English history there existed an estate in land called a Rent Service, which was created by a lord conveying land to one of his vassals in fee, reserving to himself, however, the right to call upon his vassal's service so long as the vassal remained 145 10 146 Conveyancing in Pennsylvania. the owner of the land. Later, instead of reserving the right of demanding the actual service of the vassals, the lords granting the land began to reserve to themselves the right to receive annually a certain sum of money instead. At common law, therefore, a rent service became an estate in land reserved by the grantor to himself out of the granted estate. This reserved part usually consisted of a right to services or right to receive a certain sum of money paid at fixed intervals according to the terms of the grant. The so- called ground rent is a lineal descendant of the old rent service. It possesses all its attributes (Ingersoll v. Ser- geant, 1 Whart. 337) and is created in the same way. The method of creating a ground rent is as follows : The owner of the land conveys to a grantee his whole estate, reserving, however, for himself the ground rent out of it. The former owner or grantor then has the ground rent estate and the grantee owns the land subject to the payment of this rent. The owner of the ground rent is sometimes called the grantor, sometimes the ground rent landlord and some- times the covenantee. The owner of the land sub- ject to the payment of the ground rent is sometimes called the grantee, sometimes the terre-tenant, and some- times the covenantor. A ground rent can only be created by the person having a fee simple estate reserving it out of a conveyance to some one else. Therefore, if A desires to give B a ground rent in a certain piece of land, he must first convey unto B his whole estate, which makes B the owner in fee. B must now reconvey the land to A, reserving unto himself a sum of money or rental to be paid yearly. A is once again the owner in fee of the land, but he must now pay to B a certain tribute every year. Thus it will be seen that a ground rent is nothing more or less than "a rent reserved by a grantor, to himself, his heirs and assigns in conveying land in fee." {IngersoU v. Sergeant, 1 Whart. 337. ) This rent, while usually a sum of money payable at stated intervals, may, like the common law rent service, be either in kind, services or chattels. Ground Eent. 147 The ground rent is generally unknown througliout the rest of this country. It is in use in some few of the states, perhaps in parts of New York or New Jersey. With these exceptions it is peculiar to Pennsylvania, and even in Penn- sylvania, outside of the City of Philadelphia it is a rarity. In Philadelphia, however, ground rents are very common. The creation of ground rents was used for the building up of the City of Philadelphia, and was of inestimable value in doing it. The method was that the owner of a tract of land would convey it to B, reserving a perpetual rent generally with a condition that the rent might be paid off within a certain time upon the payment of an amount equal to the rent capitalized at 6%. Of course, the advantage of the ground rent was that the purchaser or grantee did not need to pay any ready money to complete his purchase, but simply had to go upon the land, improve it and so earn the purchase money. Again, the ground rent was used and to this day is still used as an incumbrance for the loaning of money, as in the case of a mortgage. In such case, as ex- plained before, A being the owner of the land and desiring to borrow money on it would convey it to B for a nominal con- sideration and B. would immediately reconvey it to A, re- serving the rent ; in this way the ground rent estate would become a security for the money loaned. 154. FORM AND ANALYSIS OF GROUND RENTS. The instrument by which a ground rent is created is called a ground rent deed. This deed contains covenants on the part of the grantor and grantee and is usually executed in duplicate as all indentures once were. (See section 70.) One copy is recorded and the other marked counterpart and they are retained by the owner of the land and of the ground rent, respectively. By examining the form set forth in the Appendix, Form 44, page 516, it will be seen that a ground rent deed reads the same as an ordinary deed of conveyance until the conclusion of the habendum (to have and to hold clause) after which is inserted the long clause reserving the rent and providing for its collection. 148 Conveyancing in Pennsylvania. The technical name of this clause is the "reddendum," or, to use a more modern term the "reservation." Upon analysis it will be seen that it provides : ( 1 ) For the amount of rent reserved and how it shall be paid. Modern ground rent deeds set forth merely, "law- ful money of the United States;" the older ones usually stipulated the metal, and specified the weight and fineness. (2) Then follows an agreement permitting the grantor or owner of the ground rent, his heirs or assigns to enter to make distress if the rent is unpaid and following it a pro- vision that if sufficient distress be not found the grantor, his heirs or assigns may reenter and take possession. (3) Modern ground rent deeds have inserted a clause providing for an attorney's fee of whatever amount agreed upon, to be added to the arrearage of the ground rent, should it be necessary to commence suit thereon. This pro- vision for attorney's fee relieves the grantor from this bur- den which he bore under the older deeds and saddles it on the grantee who ought to bear it when in default. (4) Next is a covenant on the part of the grantee to pay all the taxes assessed against the property which is im- portant in that it relieves the grantor from paying any taxes on his ground rent. (5) A clause may be inserted requiring the grantee to build or make other specified improvements, thus increas- ing the security for the rent. Such a covenant' binds only the original owner of the land and does not run with the land to bind subsequent grantees. {De Sanno' v. Earle, 273 Pa. 265.) ( 6 ) The next clause is that waiving the Exemption Act. The remedy of distress is often of little or no value unless the |300 exemption is waived, so care should be taken by the grantor always to insert the waiver. (7) Then follows the agreement that if at any time the owner of the ground rent is paid $1,000.00 (which is the capitalized principal of |60.00 per year at 6%) he will execute the necessary instruments to extinguish it. Ground Eent. 149 After the reddendum or reservation clause is the cove- nant of quiet enjoyment by the grantor. 155. PARTIES TO A GROUND RENT. Any person capable of conveying real estate may create a ground rent, and any person capable of holding real estate and of contracting may become the covenantor. Although the deed is usually in counterpart and both parties sign, the Act of 1850, section 8, P. L. 569, provides that mere ac- ceptance of the deed without signing binds the grantee, his heirs and assigns to pay the rent. But see section 160 of this treatise as to the effect of the Act of 1878, P. L. 205, upon the personal liability of subsequent grantees. A married woman who is the grantee of a ground rent deed is liable for the rent even though her husband did not sign the counterpart. (Gowton v. Wickershani, 54 Pa. 302. ) If a married woman is the grantor, the husband of course, must join, in which case the rent may be reserved to the husband alone. But it cannot be reserved to a stranger to the title. {Evans v. McCarter, 8 W. N. C. 75.) If, in the conveyance of real estate of the wife, the rent is reserved to the grantors — i. e., both husband and wife, it has been held that the two become tenants by the entireties of the rent, and upon the death of either the survivor is entitled to the whole rent. (Bobb v. Beaver, 8 W. & S. 107. ) It is perhaps an open question whether the married wom- en's property acts affect the early decisions so as to make it impossible for a husband to hold a ground rent reserved directly to him out of his wife's land. (See the two cases cited above.) 156. NATURE OF A GROUND RENT. From the foregoing section it is readily seen that a ground rent is essentially different from a mortgage both in creation and effect. A ground rent is an estate in the land and is, therefore, real estate, whereas a mortgage is but a pledge of the land to repay a debt and is personal property. The rent is an estate in fee, although separate 150 Conveyancing in Pennsylvania. and distinct from the estate in fee of the land itself, out of which it issues, the former being an incorporeal estate and the latter a corporal estate. A ground rent has all the incidents of real estate. It may itself be mortgaged. {Weidner v. Foster, 3 P. & W. 23.) It is subject to partition. (White's Appeal, 167 Pa. 206.) Judgments entered against the owner of the rent become liens upon it. It is subject to assessment and taxation as real estate although it is usually provided in the deed that the grantee shall pay all taxes and assessments. {Fran- ciscus V. Reigart, 4 Watts 98 at 120.) Upon the death of the owner it passes to the devisee or heir and not to the executor or administrator. The fact that a ground rent is real estate is likewise reflected in the way it is extinguished. 157. IRREDEEMABLE GROUND RENTS. Ground rents in Pennsylvania are of three kinds, — Ee- deemable, Irredeemable and Conditionally Irredeemable. Irredeemable ground rents, as the name implies, are such as never can be redeemed, — that is, — never paid off except upon the mutual agreement of the owner of the rent and the owner of the land. These were the older form, the early rents being perpetual and created by the words, "In every year hereafter forever." No capitalized sum (i. e., the sum to be paid in extinguishment) is mentioned in such rents and the owner of the rent can refuse to extinguish for any sum less than the one he may fix. If he desires, he can fix a sum much greater than the capitalized value of the rent at six per cent. The owner of such a rent, of course, can never compel the payment of any principal sum, since there is no such debt under the terms of the deed. Later, it became customary to place in the deed reserving the ground rent a provision that the rent could be extin- guished by the payment of a certain principal sum within a specified period, but if not paid within such period, it should become irredeemable. These may be described as conditionally irredeemable. Although at the present time there are few ground rents existing in Pennsylvania which Ground Bent. 151 were originally irredeemable, there are many still existing which have become irredeemable, by operation of the con- ditional clause as above stated. The existence of a charge or encumbrance upon land which the owner of the land can never remove is against the modern tendency of the law to make land freely alienable. Hence it is not suprising that the Legislature in 1850 (P. L. 553, section 21 ) attempted to make it impossible to cre- ate an irredeemable ground rent. The Supreme Court, how- ever, held that the act was ineffectual for that purpose. {PaUiretv. Snyder, 106 Pa. 227.) The Act of 1885, P. L. 161, finally made the creation of irredeemable ground rents impossible. It provided that no irredeemable ground rent can be created nor can a ground rent be construed to be such from express words or impli- cation; nor shall the time for the extinguishment of any ground rent be postponed for a period of more than 21 years or a life or lives in being. All ground rents created, there- after, unless the rate is otherwise provided, shall be redeem- able at the legal rate of interest at the time of their cre- ation. Irredeemable ground rents created before this act are not affected, and an earlier attempt of the legislature to provide for their compulsory extinguishment was held un- constitutional. {Palwi/ret's Appefil, 67 Pa. 479.) 158. REDEEMABLE GROUND RENTS. Eedeemable ground rents are such as can be redeemed or extinguished at any time after their creation at the option of the owner of the land, — that is, the person who is liable for the rent. The ground rent owner, or ground rent landlord, does not have such an option. He can never demand the payment of the principal unless a clause giving him such a right is in- serted, in which case he may demand the payment of the principal only at the expiration of the term fixed, notwith- standing any default in payments of rent. 152 Conveyancing in Pennsylvania. 159. APPORTIONMENT OF GROUND RENTS. A peculiar attribute of a ground refit is that it becomes apportioned as the land out of which it issues is divided. Suppose a tract of land out of which a ground rent issues is divided into three parts ; out of each part of the original tract must be paid its proportionate part of the whole rent, — in this case one-third. The rights of the owner of the rent are not affected, unless he consents to an apportionment, and he can collect the whole rent from any part. (Ministers of Lutheran Congregation v. lAmehouse, 19 Dist. Rep. 199. ) But if the holder of one part pays the whole rent he may maintain an action against the owners of the other parts for their proportionate contribution. {Donovan v. McKee, 13 Phila. 48.) The mortgage doctrine of liability in the in- verse order of sale does not apply and a release of any part of the land by the owner of the rent does not release the other part, which continues liable ; but only for its propor- tionate part. (Ingersoll v. Sargent, 1 Whart. 337. ) Not only may the land out of which the rent issues be ap- portioned but the ownership of the rent may also be divided among any number of persons, and the owner of any por- tion may maintain a separate action for his portion of the rent and the tenant is bound to pay each his due portion. [Reed v. Ward, 22 Pa. 144.) When mortgaged property is divided into parts which are then sold subject to newly created ground rents, the owner of the ground rent on one part can protect himself from a release of another part from the mortgage, provided he warns the mortgagee not to make such a release. {Hart v. Anderson, 198 Pa. 558. ) 160. PERSONAL LIABILITY OF SUBSEQUENT GRANTEES. The original covenantor continues liable for all arrears of rent, even after he has parted with the title. [Eunckle V. Wi/nick, 1 Dall. 305.) He is surety only and if forced to pay such arrears he can sue the subsequent grantee or grantees for reinbursement. Prior to the Act of June 12, Ground Rent. 153 1878, P. L. 205, a grantee of land subject to a ground rent became personally liable to the owner of the rent, under the doctrine that the covenant to pay rent ran with the land so as to bind all subsequent grantees. {Streaper v. Fisher, 1 Rawle 155.) He was personally liable for arrears of rent accruing before his acquisition of title, although not liable for interest on such arrears. {McQuesney v. Hiester, 33 Pa. 435. ) He was not liable for arrears of rent after he had parted with the title to another grantee, and was not required to reimburse the original covenantor who had been forced to pay such arrears. {American Academy of Music V. Smith, M Pa. 130.) The above Act of 1878 (see section 140) provides that a grantee should not be subject to personal liability unless he expressly assumed it by agreement in writing, and that ac- ceptance of a deed under and subject to the payment of a ground rent, mortgage, or other encumbrance, shall not be construed as making the grantee liable. This act without question applies to all ground rents created after the act. (Easby v. Eashy, 180 Pa. 429.) It is equally well estab- lished that it does not apply to grantees who acquire title before the passage of the act. {Merriman v. Moore, 90 Pa. 78; Hopple v. Hutchinson, 44 W. N. C. 441.) It was un- certain for some time as to whether the act applied to cases where the grantee acquired title after the act but where the ground rent was created before the act. It now appears to be settled that the act does not apply to such cases and that in all cases of ground rents created before 1878, all subsequent grantees are personally liable. {Conway v. Building and Loan Assn., 44 W. N. C. 439; Saehse v. Myers, 15 Pa. Superior Ct. 425.) The latter case is not entirely satisfactory because of certain contradictory rea- soning. The court says that there is "nothing in the words of the act to warrant the conclusion that, the under and subject clause in a future grantee's deed was intended to be interpreted one way if the ground rent was created before the passage of the act and another way if it was 154 Conveyancing in Pennsylvania. created afterward." Yet the court proceeds to reacli ex- actly such conclusion in its decision, — namely that a gran- tee is personally liable if the ground rent was created before 1878, although admittedly not so liable if the rent was cre- ated after 1878. This act does not affect the grantee's liability to reim- burse the original covenantor for any payments which the latter has been forced to make for rent accruing after the conveyance. {May's Estate^ 218 Pa. 64. ) 161. LIEN OF GROUND RENTS AND ARREARAGES OF RENT. Strictly speaking a ground rent is not a lien, though its practical effect on the title is that of any other incum- brance. Therefore, a property subject to a ground rent would not satisfy the terms of an agreement of sale call- ing for a marketable title clear of all encumbrance. Ar- rears of ground rent are, strictly speaking, a lien against the property. The lien dates from the time of the creation of the ground rent rgardless of the time when the arrears occur. [Devine's Appeal, 30 Pa. 348 at 351.) This means that a mortgage on a property subject to a ground rent comes after ground rent arrearages that may have accrued after the mortgage, because all of these arrearages become liens as of the date of the ground rent deed. Arrears carry interest and interest also becomes a lien. 162. DISCHARGE OF GROUND RENTS BY EXTIN- GUISHMENT. A ground rent cannot be discharged on payment of the principal sum, by merely satisfying the record, as in the case of a mortgage. Neither is it possible to extinguish by a mere release of lien under seal. It must be done by a formal instrument called a deed of extinguishment. As it is really a conveyance of real estate, all formalities inci- dent to ordinary deeds must be observed. Thus, if the owner of the ground rent is married, his wife must join in Ground Rent. 155 the deed of extinguishment to release her dower. For form of -a Deed of Extinguishment see Appendix, Form 45, page 521. Such a deed is really an assignment of the rent to the owner of the land and operates to extinguish the ground rent by merger as explained in the following sec- tion. The same form can be used for assignments of ground rents to third parties. The legislature has provided a procedure whereby a ground rent that has been paid or barred by lapse of time may be extinguised by decree of court. (Act of July 19, 1917, P. L. 1112.) 163. DISCHARGE BY MERGER. If the owner of the ground rent subsequently acquires title to the land out of which the rent issues, the ground rent is said to be merged and is extinguished. By operation of law, when the right to the land and the right to the rent are united in the same person, the rent becomes extinct. (Frank v. Guarantee Trust, etc., Co., 216 Pa. 40.) But this does not happen where a mortgage intervenes which was given by a prior owner of the land. [Cook v. Brightly, 46 Pa. 439. ) To allow extinguishment in such a case would make the land liable for the mortgage up to the full value of the land whereas the mortgage was intended to be a lien only upon the land subject to the ground rent. Not only must the two titles vest in the same person, but that person must own both the land and rent in fee. Thus where the owner of the rent in fee acquired a life estate in the land there was no merger. [Pennsylvania, etc., Co. v. Sing- /iewer,235Pa. 241.) 164. DISCHARGE BY ORDER OF COURT AFTER LAPSE OF TWENTY-ONE YEARS. Under the Act of April 27, 1855, section 7, P. L. 368, "where no payment claim or demand shall have been made on account, of or for any ground rent, annuity or other charge upon real estate for twenty-one years, or no decla- 156 Conveyancing in Pennsylvania. ration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground rent, annuity or charge, a release shall be presumed." This act is retroactive and applies to rents created before its passage. {Clay v. Ise- minger, 190 Pa. 580.) By Act of Feb. 26, 1869, P. L. 3, this presumption of payment or release was extended to parts of ground rents. Appropriate proceedings exist whereby the court will order an extinguishment on the record of a ground rent barred by lapse of time. (Act of July 19, 1917, P. L. 1112.) 165. DISCHARGE BY JUDICIAL SALE. This subject will be considered in general, as affecting all liens, in chapter IX, section 205. It is sufl&cient here to note that a ground rent is never discharged by a sheriff's sale of the property upon a subsequent lien. This is true even though the sale is for taxes. {Irwin v. Bank, 1 Pa. 349; see also Act of Jan. 23, 1849, P. L. 686.) Neither is the ground rent itself discharged upon a sale for arrearages. A sale on a prior lien would, of course, discharge the ground rent itself, otherwise a judgment debtor might im- pair or destroy the value of his creditor's lien by conveying the property subject to a ground rent. And sale upon a sub- sequent lien discharges a ground rent if preceded by a lien — such as a judgment — that is discharged. For a distinction between mortgages and ground rents when the prior judg- ment has been paid but not satisfied of record see Pancoast V. Hagaman, 4 Leg. & Ins. Rep. 75, holding that the ground rent was not discharged. Arrears of ground rent being a lien and not an estate in the land are discharged by sale on a subsequent lien, except that when a lien not discharged, such as a mortgage — inter- venes between the ground rent and the subsequent lien on which the sale is made, the arrears are not discharged. {Devine's Appeal, 30 Pa. 348.) Ground Rents. 157 166. WHEN AND HOW RENT MUST BE PAID. The rent must be paid according to the terms of the deed. If it provides that rent is to be paid in lawful money of the United States it may be paid in any legal tender. If it provides "payable in coin of a specified weight and fineness" it must be paid by coin of that weight and fineness, unless such coin is no longer legal tender, in which case it may be paid in legal tender. {Cook v. Lovet% 17 D. R. 347.) It must be paid when due or the ground rent landlord may proceed to collect the rent by any remedies hereinafter set forth ; which remedies are cumulative ; i. e., the party en- titled to the ground rent may invoke any or all until he is satisfied. {Royer v. Ake, 3 P. & W. 461.) 167. COLLECTION OF RENT BY DISTRESS. The owner of the ground rent may distrain like the lessor of a term of years. (See Sec. 321, et seq.) This right is an incident of a ground rent and exists without special pro- vision in the deed ( Wallace v. Harmsted, 44 Pa. 492. ) But ground rent deeds usually have inserted an express distress clause which includes a waiver of exemption in order to make this remedy more complete. In distress for ground rent the procedure is the same as any other distress for house rent, and if the ground rent deed contains a waiver of the exemption law it is usually effective. Tenant's goods on the property as well as goods of the owner are liable for distress. 168. REMEDY BY REENTRY. This remedy is practically obsolete although it may still be enforced. It is, however, a troublesome procedure and rarely used because the following steps must be carefully taken : Distress must first be made and if sufficient prop- erty be not found to pay the rent due, an actual demand must be made before sundown on the precise day when due for the exact amount. {McCormick v. Gonnell, 6 S. & R. 151. ) This demand must be made even though the land is 158 Conveyancing in Pennsylvania. unoccupied. {Hornet v. Singer, 35 Pa. Superior Ct. 491.) If possession of the land be refused ejectment proceedings must be commenced to oust the tenant in possession. An indefeasible title is not acquired by such reentry, — the owner of the rent merely has the right of possession until all arrears are paid. 169. REMEDY BY ACTION OF EJECTMENT. Wherever the ground rent deed provides for a right to reenter upon the breach of covenants then the ground rent landlord may begin an action of ejectment upon such breach. All the requirements mentioned in the preceding section must first be complied with {Newmfm v. Rutter, 8 Watts 51 ) , and ejectment cannot be brought unless the deed expressly provided for a right of entry. {Kenege v. Elliot, 9 Watts 258.) 170. REMEDY BY ACTION OF ASSUMPSIT. The most common remedy to recover arrearages of ground rent, (and the principal itself whenever that is due) , is by a suit in an action of contract. The ground rent is a covenant or contract to pay the rent and hence may be enforced by the usual contract action of assumpsit. The original grantor (or covenantee) and every person who has ever owned the ground rent must be named as plaintiffs and the whole chain of title of the present owner must be set out. The original grantee, or covenantor, must be named as defendant, and if title to the land has become vested in some other person, that person must be named as terre- tenant and served with the writ of summons. If the original covenantor is dead or cannot be found (the usual case) the sheriff returns the writ endorsed "Nihil habet," and a sec- ond or alias writ is issued which is summarily returned. If no defense is made by the terre-tenant, judgment can be en- tered after the two returns of nihil habet. This judgment can always be enforced against the land. It is a personal judgment against the original covenantor if he is living Ground Rents. 159 and has been served with summons, and is a personal judg- ment against the terre-tenant if the latter expressly as- sumed a personal liability. (See section 160.) Interest on arrears is usually allowable from the time the rent became due {Buck v. Fisher, 4 Whart. 516), but may be refused if the equities of the case require. {McQuesney V. ffies*er,33Pa. 435.) 171. MORTGAGES AND GROUND RENTS COMPARED. Mr. Fallon (Pa. Law of Conveyancing, page 459), from the viewpoint of an investor, has compared the respective advantages of a ground rent and mortgage and a review of his comparison may be of some benefit. First : A ground rent is real estate and is descendable to the heir, subject to the rights of curtesy and of dower. On the other hand, a mortgage is personal property and goes to the administrator. A ground rent being real estate is, of course, subject to the lien of a judgment; but a mort- gage is not so subject to lien of judgment, but may only be attached on an attachment execution issued for that pur- pose. A ground rent may be mortgaged which of course is not true of a mortgagee's interest. Second : The holder of a ground rent can never demand the payment of the principal (unless specified to the con- trary), so that if the property should depreciate in value, he cannot protect his capital by withdrawing it; mort- gages, on the other hand, are made for a fixed period, usually three to five years, and if the holder at the end of that time is not satisfied with his investment, he can call in the prin- cipal. Third : Should it become necessary to sell the property for the nonpayment of rent, the holder thereof is at the expense of the sale, although in recent years many deeds contain a provision for an attorney's fee. (See Appendix, Form 44. page 516.) The recovery of costs upon ground rents in Philadelphia not exceeding flOO.OO is, however, secured by the Act of April 8, 1857, P. L. 175. Mortgages, on the other 160 Conveyancing in Pennsylvania. hand, invariably provide for an attorney's fee, in case fore- closure is necessary and should the property not realize sufficient to pay ofE the debt, interest and costs, the holder can resort to the bond accompanying the mortgage for the balance due. Fourth : The cost of satisfying a mortgage is small com- pared to the extinguishment of a ground rent, which, it will be remembered, must be done by a deed, carefully drawn, executed and recorded. Fifth : Ground rents, however, are usually not taxable, unless the deeds creating them do not contain the usual clause of covenant to pay all taxes on the rent and on the land in which event the owner of the rent pays a tax on the value of the rent and the owner of the land pays a tax on the assessed value of the land. {Robinson v. Allegheny Co., 7 Pa. 161.) Mortgages, however, are subject to state tax of four mills on the dollar. The usual covenant to pay all taxes includes Federal Income Tax. {Ehrlich v. Brogan, 262 Pa. 362 ; Van Beil v. Brogan, 65 Pa. Superior Ct. 384.) CHAPTER IX. Eecording of Deeds and Other Instruments Relating to Real Estate. Section Page 172. History of Eecording. . 161 173. Object and Purpose of Eecording 162 174. Title under Unrecorded Deeds 163 175. Persons Protected by Eecording Acts 164 176. When Eecording Is Not Notice 164 177. Effect of Eecord As Notice 165 178. Actual Notice Equiva- lent to Eecording . . 165 179. Time within Which Deeds Must Be Ee- corded. Outside Phil- adelphia 167 180. Time for Eecording. In Philadelphia 168 181. Matters Affecting Title Section Page That Cannot Be As- certained from the Eecord 169 182. Method of Eecording. . . 171 183. Defective Eecording and Indexing. Eesult Thereof 172 184. Eecording of Mortgages. In General 173 185. Unrecorded Mortgage Void As against Sub- sequent Judgments . . 174 186. Purchase Money Mort- gages 175 187. Eecording Assignments an(i Entering Satis- faction of Mortgages. 176 188. Eecording Agreements of Sale 176 189. What Other Instruments May Be Eecorded ... 176 172. HISTORY OF RECORDING. At common law a deed "first in time is first in law." Thus a purchaser of land after paying his money and ob- taining a deed might discover that he had no title, or an encumbered title owing to an earlier deed or mortgage from his grantor of which he was unaware. Certain early acts were passed in England requiring deeds to be "enrolled or recorded" in order to give notice and prevent fraud and mistake, but they applied only to certain kinds of deeds and were not adequate protection to innocent purchasers. (2 161 162 Conveyancing in Pennsylvania. Blackstone 342. ) William Penn, with the object lesson of the inefficient recording system of England before him, de- termined to establish a recording system in his new colony of Pennsylvania that would place titles upon a solid foun- dation. The first assembly held at Chester in 1682 passed an act requiring all charters, gifts, conveyances of land and cer- tain other securities to be recorded within two months or else to be void in law. Several later acts were revised and consolidated by the Act of May 28, 1715, 1 Sm. L. 94. Al- though this act is the foundation of the Pennsylvania Re- cording system, it differed in one important respect from the earlier and also from the later acts, — namely, that an unrecorded deed was not void as against subsequent pur- chasers or mortgagees without notice. (Maclay v. Work, 5 Binn. 154.) The Act of March 18, 1775, 1 Sm. L. 422, remedied this defect of the earlier act and provided that any deed or conveyance not recorded within six months should be "void against any subsequent purchaser or mortgagee for valuable consideration." The Act of May 25, 1878, P. L. 151, which is now in force, abolished the six months' time limit as regards Philadelphia and provided that a deed is valid as against subsequent purchasers and mortgagees only from the date of record. The Act of May 19, 1893, P. L. 108, which is now in force throughout the State outside of Philadelphia, reduced the six months' time limit to ninety days, except for deeds executed outside the State. 173. OBJECT AND PURPOSE OF RECORDING. The primary object of recording deeds as stated by the Supreme Court {Salter v. Reed, 15 Pa. 260) is "to give public notice in whom the title resides so that no one may be defrauded by deceptious appearance of title." A second- ary object is to provide permanent evidence of title that may be authentic and available at any time. Exemplified copies from the record, — i. e., copies made and certified by the recorder of deeds, — may be evidence in court without for- Recording op Deeds and Other Instruments. 163 mally proving execution and delivery. Such proof has equal probative value with the original deed, and may be given in evidence without producing or proving the loss of the original. {Gurry v. Raymond^, 28 Pa. 144.) 174. TITLE UNDER UNRECORDED DEEDS. At common law, as before stated, a deed first in time is prior in law to all subsequent deeds of the same property by the same grantor. This is true even though the prior deed was without consideration and the subsequent deed was to a bona fide purchaser without knowledge. This com- mon law rule as to priority still prevails except as it has been modified by the recording acts. These acts do not make recording obligatory for all purposes. In other words an unrecorded deed is valid as to all persons who are not ex- pressly mentioned in the acts as protected against such conveyances. The only classes of persons so mentioned are "subsequent purchasers and mortgagees for a valid consider- ation." As to all other persons the common law applies. An unrecorded deed is therefore valid as against the follow- ing: ( a ) The grantor. (b) Heirs of the grantor. ( c ) A devisee of the grantor. (d) A donee of the grantor. (e) Creditors of the grantor. The Act of 1893 (P. L. 108 ) included creditors among those protected by the act, but the Supreme Court in a rather unsatisfactory opinion held that the act was ineffective for this purpose. {Davey V. Ruff ell, 162 Pa. 443. ) The reason for the decision seems to be that there is no method whereby a judgment creditor can record his lien in the recorder of deeds' office, but why this fact should nullify the express language of the act is not clear since the courts have experienced no difficulty in holding unrecorded mortgages void as to subsequent judg- ment creditors. The result of the case might be properly supported on the ground that the title of the act does not 164 Conveyancing in Pennsylvania. disclose an intent to enlarge the class of persons protected, which renders such provision unconstitutional. (f) Subsequent purchasiers or imortgagees who have actual notice of the prior deed. ( See section 178. ) 175. PERSONS PROTECTED BY RECORDING ACTS. The question often arises as to what persons come within the phrase "purchasers or mortgagees for valid (Act 1893) {valuable, act 1775) consideration." The courts have in- terpreted it as applying only to persons who actually pay out money or give some other kind of value in a bona fide transaction. Thus an assignee for the benefit of creditors is not within the meaning of the phrase. {Ludwig v. High- ley, 5 Pa. 132. ) Consideration of "kindness and affection" does not bring a grantee within the protection of the act. (Ritzman v. Spencer, 5 D. E. 224.) A grantee who takes real estate in payment of or as security for an antecedent debt, is not a purchaser or mortgagee within the meaning of the act. {Pepper v. Watts, 7 Lane. L. R. 241 ; Adamson v. Souder, 205 Pa. 498. ) A sheriff's vendee is such a pur- chaser as is protected. {Heister v. Fortner, 2 Binn. 40. ) 176. WHEN RECORDING IS NOT NOTICE. It is not eivery recorded deed that is notice to the whole world, so as to defeat the rights of subsequent purchasers. The record is notice only to those who are bound to search for it, and subsequent purchasers may be protected as against a prior recorded deed, if the record is such as would not be found in a customary search. Thus, if there is a gap in a record chain of title because of an unrecorded deed, a recital of such deed in a subsequent recorded deed will not close up the gap, so as to complete the record title. {Collins V. Aaron, 162 Pa. 539.) Nor is a subsequent pur- chaser from the record owner, bound by any recorded deeds (or recitals in such deeds), that are outside the record chain of title. {Keller v. Nutz, 5 S. & R. 246; Pyles v. Brown, 189 Pa. 164. ) The record of a defectively acknowl- Recording of Deeds and Other iNSTRrMENTa. 165 edged instrument is not notice to anyone and such a deed has no more effect than an unrecorded deed. (Green v. Drinker, 7 W. & S. 440. ) The legislature, however, passes frequent acts validating defective acknowledgments. A deed which is incorrectly recorded or indexed by mistake of the recording clerk is not notice. (Prouty v. Marshall, 225 Pa. 570: see section 183.) The record of a deed subject to a mortgage is not notice to the mortgagee so as to cause a release of another part subsequently sold to operate as a release of the part first sold. (Sco field v. Wallace, 56 Pitts. Q. S. 41; see section 148.) In such a case the owner of the part first sold must give actual notice to the mortgagee. A similar doctrine is the rule that the record of an assignment of a mortgage is not notice to the mortgagor. (See section 136.) 177. EFFECT OF RECORD AS NOTICE. A deed from the true and record owner which is duly re- corded gives the grantee an indefeasible title as against the whole world. Such a title is good as against a subsequent purchaser for value, even though the prior grantee paid no consideration. (Lancaster v. Dolan, 1 Eawle 231.) And such prior grantee has title even though he allowed a sub- sequent grantee to take possession and make valuable im- provements. (Knouff V. Thompson, 16 Pa. 357; Gillespie V. Buffalo, etc.. By. Co., 204 Pa. 107. ) 178. ACTUAL NOTICE EQUIVALENT TO RECORD- ING. POSSESSION IS ALWAYS NOTICE. The purpose of recording a deed is to give notice of its existence to subsequent parties. Notice is of two kinds: actual, which means actual, positive knowledge of the deed in question ; or constructive, which means a state of facts under which subsequent parties ought to know of the deed and which has the same legal effect as actual knowledge. The proper record of a deed is, therefore, actual notice to all who actually find it, but it is also constructive notice to 166 Conveyancing in Pennsylvania. all who are bound to search for it, whether or not it is ac- tually found. Since the purpose of the Recording Acts is merely to give notice to subsequent purchasers, it naturally follows that such purchasers should not be protected against a prior unrecorded deed of which they have actual knowledge by some means apart from the record. So the courts have held, although the Acts do not expressly provide for such a doctrine. {Stroud v. Lockhart, 4 Dall. star page 153; Swank v. PhilUps, 113 Pa. 482.) The doctrine of constructive notice is not limited to the record; it is possible for a subsequent purchaser to be bound by mere constructive notice of a prior unrecorded deed. If there is a state of facts sufficient to put him upon an inquiry which would lead to a discovery of the prior deed he is bound by such deed even though he does not make the inquiry and has no actual knowledge. Thus a pur- chaser is bound by a recital in the deed to him which refers, even though vaguely, to a prior unrecorded deed. {Jen- nings V. Bloomfield, 199 Pa. 638. ) Possession is always constructive notice of the claim of the party in possession. {Jamison v. Dvmock, 95 Pa. 52. ) The possession, however, must be exclusive, open and no- torious. Joint possession by the prior grantee with the grantor is not sufficient. {Dunning v. Reese, 7 Kulp. (Lu- zerne) 201.) And occasionally entries upon the property do not constitute the required possession. {Meehan v. Williams, 48 Pa. 238.) Possession by a tenant is con- structive notice of the landlord's claim to title. {Stone- cipher V. Keane, 268 Pa. 540. ) Vague rumors of a prior deed are not such notice as will bar the right of a subsequent purchaser. {Jaques v. Weeks, 7 Watts 261.) Even though the subsequent purchaser has no title be- cause of a prior unrecorded deed, he can pass good title to a purchaser for value without notice. {Good v. Baus- nrnn, 6 W. N. C. 93. ) And a subsequent bona fide purchaser Recoedinq op Deeds and Other Instruments. 167 who has once acquired title because of a lack of notice of a prior unrecorded deed can pass good title to another pur- chaser who has knowledge of such prior deed. (Stone- cipher V. Keane, 268 Pa. 540.) 179. TIME WITHIN WHICH DEEDS MUST BE RE- CORDED. OUTSIDE PHILADELPHIA. The Act of May 19, 1893, P. L. 108, which governs the recording of deeds throughout Pennsylvania, except in Philadelphia, provides that all deeds must be recorded within ninety days after execution and that deeds not so recorded "shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for a valid con- sideration." Deeds executed outside the State, however, are allowed six months in which to be recorded. Three situations should be considered: (1) Where both deeds are recorded within the period. (2) Where one is within and the other without the period. (3) Where both are without the period. ( 1 ) When Both Are within the Ninety-Diay Period. The effect of the act is to preserve the common law right of priority to any deed that is recorded within the ninety- day (or six months') period, as against a deed subsequent in date but recorded first. A purchaser must take the risk of a prior unrecorded deed dated within ninety days which may later be placed on record within the ninety days so as to cut out the subsequent deed. Thus a deed dated Janu- ary 1st and not recorded until March 1st would have pri- ority over a deed dated and recorded February 1st. There seems to be no case directly on the point under the act of 1893 but the ninety-day provision would seem largely mean- ingless under any other doctrine. For an application of the rule as above stated, under the Act of 1775, see Hultz v. Ackley, 63 Pa. 142. (2) Where One Deed, Is mthinland the Other without the Period. Conversely, a deed that is not recorded within the statu- tory period loses its common law priority and is postponed 168 Conveyancing in Pennsylvania. to a later deed that is recorded within the period even though the first deed was recorded first. Thus it was held that an agreement of sale executed in December and not recorded until March, one hundred and five days later, was post- poned to a deed executed in February and recorded in April. (Smith V. Young, 259 Pa. 367.) This case was decided under the act of 1893 and reached a contrary conclusion from cases decided under the different wording of the act of 1775, which cases had held that the first upon record should prevail. ( See Fries v. Null, 154 Pa. 573. ) (3) Where Neither Deed Is Recorded within the Period. Where neither deed is recorded within the ninety-day period there seems to be no case decided under the act of 1893. The above case of Smith v. Young, however, would seem authority for holding that any deed not recorded within the statutory period loses its priority as to all sub- sequent purchasers regardless of when their deeds are re- corded. Such seems the only reasonable interpretation of the act which provides simply and only that any deed not recorded within ninety days shall be void as against subse- quent purchasers. There is no provision, express or implied, as to when subsequent purchasers who were deceived by the lack of record must record ( or even that they must record at all ) in order to be protected against the prior deed. This policy of postponing the time for recording dates back to the early recording acts in colonial days when a journey to the county seat over the almost impassable roads was a serious matter that might be undertaken only a few times in the course of a year. There seems to be no valid reason for a continuance of the policy and, as stated by the Supreme Court in the case of Smith v. Young, 259 Pa. 367 at 372, the legislature should provide that priority should be given to the first on record regardless of the date of execution. 180. TIME FOR RECORDING. IN PHILADELPHIA. As regards real estate within Philadelphia the Act of May 25, 1878, P. L. 151, provides that all deeds or other Recording of Deeds and Othee Instruments. 169 instruments shall be void "as against any subsequent bona fide purchaser or mortgagee unless such deed, conveyance or instrument of writing shall be recorded . . . before the recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim." This simply means that, as regards the class of persons affected by the Kecording Acts, priority is determined solely by the date of the record and none of the complications or uncertainties discussed in the preceding section can arise. The first upon the record prevails, regardless of the date of execution and delivery. 181. MATTERS AFFECTING TITLE THAT CANNOT BE ASCERTAINED FROM THE RECORD. Search for matters affecting title must also be made in places other than the office of the Recorder of Deeds, such as the office of the Register of Wills, the Prothonotary's office, etc. (See Chapter XXI). In addition there are many matters affecting title that cannot be ascertained from any public record. Hence, a recording system, how- ever perfectly devised and executed, cannot be an absolute assurance of the state of the title. Among such matters that must be investigated outside any public record might be mentioned the following : (1) Authenticity of All Record&d, Documents. The recording of an instrument gives it no greater validity as far as execution is concerned than it had before. Thus where a forged deed was recorded one who buys relying on the record takes no title. As said by the Supreme Court : "Of course a purchaser who examines the records is protected by them as far as they can protect him, but he necessarily takes the risk of having the actual state of title correspond to that which appears of record." [Reck V. Clapp, 1 Pennypacker, 339 at 344 ; Smith v. Marklwnd, 223 Pa. 605. ) A forgery may consist of the entire instru- ment; of the name of the grantee; or the date may be changed to bring it within the ninety-day period, or to get it ahead of a judgment. 170 Conveyancing in Pennsylvania. (2) Title in Heirs of Last Record Owner. When title descends to heirs a purchaser must look outside the record for proof as to the identity of the heirs, all of whom must join in the deed. (3) Rights of Dower. The wife of any grantor in the chain of title who did not join in the deed and whose rights are not barred by the Statute of Limitations may claim her dower, and proof of the non-existence of such claims must be sought outside the record. (4 ) The Title of a Devisee under a will may be disturbed by the election of a widow or husband to take against the will or by the claim of children of the etstator bom after the will was executed (See Sections 278-279). (5) Widows' or Children's Exemption. The widow or children of a decedent have the right to take their fSOO exemption out of real estate, and a purchaser should there- fore provide against this possibility ( See Section 257 ) . (6) The Title of Supposed Heirs may be upset by the later discovery of a will. (7). Inspection of Premises. A search of title should always include an inspection of the premises, — as to who is in possession, for possible easements that may be ap- parent, etc. (8) Easements not apparent on inspection, binding a particular property, may have been created by deeds to other property in the neighborhood, and a careful pur- chaser who has any suspicion of such easements should search the chain of title of all adjacent land. (9) Mechanics' Liens date from the time the work com- menced even though the law allows several months for filing (six months for new construction and three months for repairs). Hence subsequently filed liens may slip in ahead of a deed or a mortgage (See Section 196). (10) Taxes and Municipal Claims and Decedent's Debts are liens for a certain period without being filed of record (See Sections 197, 204, 380 and 381). Eecoeding of Deeds and Other Instruments. 171 (11) Corporation deeds and mortgages must conform to requirements of the law and the corporation by-laws. Therefore the by-laws and resolutions authorizing the deed or mortgage should be produced. (12) For other matters of title seaching see Chapter XXI. In modern practice in Philadelphia and other cities (and to a lesser extent in country districts), purchasers seldom rely upon their own search of the title or upon an abstract of title prepared by conveyancers or attorneys, but pro- tect themselves from the foregoing contingencies and all other possible defects, by title insurance. (See Chapters XXI and XXII.) 182. METHOD OF RECORDING. The method of recording a deed or other instrument is to take or send the instrument to the recorder of deeds' office. The recording fee is then paid, and receipt for the instrument is issued by the recorder or his clerk. The instrument is left there and when copied into the book and properly indexed is returned to the owner upon sur- render of the receipt. The instrument is stamped as recorded, the moment it is received by the recorder. Its recording dates from the time it is left with the recorder and not from the time it is copied into the book. For recording to be effective it must be properly done. The instrument must not only be correctly transcribed in the proper book, but must be correctly indexed as well. The rule of law governing the question as to where an instrument should be recorded has been stated as follows : "Where certain instruments of writing are not required by law to be recorded in a particular book, they may be recorded in any book kept by the recorder." {Glading v. Frick, 88 Pa. 460.) Deeds and mortgages are required to be indexed in the deed book and mortgage book respec- tively. A list of all instruments which may be recorded and the acts of assembly relating thereto, will be found in Section 189. Before 1875, a general index was not re- 172 Conveyancing in Pennsylvania. quired by law and it was then held that "where an instru- ment was properly recorded but not indexed in a general index it' was nevertheless effective, since the only index then required by law to be kept was an index for each book." {Sehell v. Stein, 76 Pa. 398.) The Act of March 18, 1875, P. L. 32, requires the recorder to keep two general indexes, one for deeds and one for mortgages, and makes it his duty to index in the proper index every deed and mortgage left at his office for record. 183. DEFECTIVE RECORDING AND INDEXING. RESULT THEREOF. At one time there was some uncertainty as to who should bear the burden of a mistake by the recording clerk, and the law differs widely in different States. The law of Penn- sylvania now seems to be settled by the case of Prouty v. Marshall, 225 Pa. 570, that the person claiming under a defectively recorded instrument must suffer and subsequent purchasers are protected. Defective indexing has the same effect as defective recording. As said by the Supreme Court in the above case, "The mortgage was neither re- corded properly nor indexed properly ; both recording and indexing were alike defective and each of the defects was fatal to the claim of the mortgagee." As a result of this development of the law a mortgagee or grantee to insure proper protection by the record, must do more than merely leave the instrument for record, he must examine the record and see that no mistake has been made by the recorder, either in indexing or transcribing. Says the Supreme Court in the same case of Prouty v. Marshall, 225 Pa. 570: "The chief object to be obtained, by recording and indexing an instrument, affecting real estate, is to give notice of the incumbrance. It is therefore the duty of a person offering an instrument for record to see that it is properly recorded and properly indexed. If he fails to do so, he cannot shift the consequence upon an innocent pur- chaser." The error in this case was the recording and in- Eecording of Deeds and Other Instruments. 173 dexing of an instrument under t'he initials "S. J." when they should have been "L. J." A somewhat similar case arose in Crippen v. BergoM, 258 Pa. 469, in which a middle initial was wrongly used in the instrument and hence wrongly inserted in the record and index. The court held that the record was sufficient notice, and distinguished the case of Prouty v. Marshall on the ground that, as a practical matter of title search, an error in the first initial is entirely different from the er- roneous insertion of a middle initial. 184. RECORDING OF MORTGAGES. IN GENERAL. All mortgages, except purchase money mortgages, should be recorded immediately after execution, if they are to be a lien from that time. The Act of March 28, 1820, 7 Sm. L. 303, sets forth in effect that all mortgages and de- feasible deeds in the nature of mortgages should have priority according to the date of recording the same with- out regard to the time of execution. And the recorder was required to indorse the time upon the mortgages or de- feasible deeds when left for record and to number the same according to the time when left for record, and if two or more were left on the same day they should have priority, according to the time they were left for record, and no mortgages or defeasible deeds should be a lien until left for record. The meaning of this act requires but little explanation, and by it mortgages, except purchase money mortgages, become a lien only from the time of recording. In general, the rules of recording deeds given in the pre- ceding sections apply also to mortgages. Although the language of the acts is different as regards deeds and mort- gages and "no mortgage shall be a lien until such mortgage shall have been recorded," the courts have not interpreted this language literally. In other words, an unrecorded mortgage is valid as against all persons who are not in- jured by the failure to record. Thus, an unrecorded mort- gage is a valid lien as against the following : (1) Mortgagor. 174 Conveyancing in Pennsylvania. (2) Heirs of the Mortgagor. {Try on v Munson, 77 Pa. 250. ) It should be noted, however, that the lien, although valid against the heirs, is not preferred to the other credi- tors of the deceased mortgagor and the mortgagee under an unrecorded mortgage must claim as a general creditor. {Nice's Appeal, 54 Pa. 200.) (3) Assignee of the land for the benefit of creditors. {Mellon's Appeal, 32 Pa. 121.) (4) Subsequent purchasers, mortgagees or creditors with actual notice. {Stroud v. Lockhart, 4 Dall. star page 153 ; Mfgrs' Bank v. Bank of Pa., 7 W. & S. 335.) It has been held that the lien of a mortgage dates from the time of being left for record, even though there may have been undue delay in recording or indexing. {Wood's Appeal, 82 Pa. 116.) But doubt is thrown upon the doc- trine of this case by the recent tendency to protect sub- sequent purchasers or mortgagees against all mistakes of recording clerks. When a judgment is entered and a mortgage recorded on the same day, they take pro rata. {Glaason's Appeal, 22 Pa. 359.) Title insurance companies have adopted a method of requiring the mortgages they are asked to insure to be recorded for two days prior to settlement. This is for the reason that it is usually practically impossible to bring the search down to the exact hour of settlement and the two day's leeway protects the title company against liens or deeds that might otherwise slip in between the con- clusion of the search and the recording of the mortgage. 185. UNRECORDED MORTGAGE VOID AS AGAINST SUBSEQUENT JUDGMENTS. The Mortgage Recording Act of 1820 (7 Sm. L. 303) is strictly and literally enforced as regards all persons who are prejudiced by a failure to record. Thus an unrecorded or defectively recorded mortgage is void as against sub- sequent purchasers of the land or subsequent mortgagees. {Pancake v. Cauffman, 114 Pa. 113; Stewart v. Bampman, Eecording op Deeds and Other Instruments. 175 4 Pa. Superior Ct. 540. ) An unrecorded mortgage is also void as to subsequent judgment creditors of the mortgagor. {Semple v. Burd, 7 S. & R. 285.) An important distinc- tion appears, therefore, between deeds and mortgages, in that an unrecorded deed is valid as against subsequent judgments. The reason for the distinction lies in the dif- ferent wording of the acts. An unrecorded deed is made void only as against certain specified persons, — namely, subsequent purchasers and mortgagees. An unrecorded mortgage is literally void for all purposes, although the courts have made certain exceptions. Since a judgment creditor may rely upon the record in extending credit and hence be prejudiced by the failure to record, he is not brought within such exceptions and as to him the act is literally applied. A purchaser at a sheriff's sale under a judgment is also protected and takes free and clear of a prior unrecorded mortgage, and notice given to the pur- chaser at the time of the sale does not affect the title. To hold otherwise would destroy the priority of the judgment creditor. {Uhler v. Hutchinson, 23 Pa. 110.) Actual notice by the judgment creditor at the time he ex- tended credit would preserve the common law priority of the unrecorded mortgage. [Britton's Appeal, 45 Pa. 172. ) Notice after the extension of credit but before the entry of judgment would probably not be sufficient to preserve the priority of the mortgage, but see dictum in Uhler v. Hutchinson, 23 Pa. 110. 186. PURCHASE MONEY MORTAGES. As already stated (Sec. 121) a purchase money mort- gage, if recorded within thirty days, is a lien from the date of execution. Hence a purchase money mortgage re- corded within thirty days comes ahead of a subsequent mortgage that is recorded first. It also comes ahead of a judgment entered against the purchaser after the signing of the agreement of sale, and before delivery of the deed. Cake's Appeal, 23 Pa. 186. ) If two purchase money mort- gages are given, neither has priority over the other even 176 Conveyancing in Pennsylvania. though recorded on different days, provided both are re- corded within thirty days. 187. RECORDING ASSIGNMENTS AND ENTERING SATISFACTION OF MORTGAGES. Assignments of mortgages may be recorded (Act of 1849, P. L. 525, Sec. 14), and are noted upon the margin of the book where the mortgage is recorded. Satisfaction of mortgages is also entered upon the margin. For fuller discussion, see the Chapter on Mortgages, Sections 136 and 146. 188. RECORDING AGREEMENTS OF SALE. Although the Recording Acts do not expressly refer to agreements of sale it is established that an agreement may be recorded, even though not under seal and hence not a deed. {Brotherton v. Livingston^, 3 W. & S. 334; Smith V. Young, 259 Pa. 367.) Such a record is notice to the world of the purchaser's equitable title and protects such title as against all subsequent parties, — even purchasers for value without actual notice. 189. WHAT OTHER INSTRUMENTS MAY BE RE- CORDED. From time to time the legislature has passed acts pro- viding that other instruments besides deeds and mortgages may be recorded and when they are recorded they have all the advantages, incidents and force of a public record such as being constructive notice to the world, receivable in evidence without formal proof, etc. The following instruments may be recorded : Assignments for benefit of creditors. Act of March 24, 1818, Sec. 5, 7 Sm. L. 132; Act of June 4, 1901, Sec. 10, P. L. 404. Bankruptcy certificates. Act of May 2, 1907, P. L. 159. To be recorded in deed books and indexed as conveyances ; the bankrupt as grantor and receiver or trustee (if any) as grantee. Coroners' deeds. Act of March 14, 1846, P. L. 124, Sec. 1. Eecording of Deeds and Other Instruments. 177 County commissioners' deeds, Act of April 5, 1849, P. L. 344, Sec. 2. Decrees of Orphan's Court in awarding real estate to wife of decedent, Act of June 7, 1917, P. L. 429, Sec. 2 and 17. Deeds or conveyances executed outside tlie State. Act of December 14, 1854, P. L. (1855) 724, Sec. 3. Deeds of sheriffs, coroners, marshals and treasurers, made in pursuance of decree of court. Act of March 14, 1846, P. L. 124, Sec. 1. Deeds of trust where lands and tenements are conveyed. Act of May 6, 1854, P. L. 603, Sec. 1. Discharges of commissioned or noncommissioned officers and privates, Act of April 8, 1868, P. L. 73, Sec. 1 ; Act of June 2, 1919, P. L. 364. Dower, releases of. Act of May 17, 1866, P. L. 1085. Election of husband or wife to take either under will or intestate laws. Act of April 21, 1911, P. L. 79. Exemplification of deed embracing land in two counties recorded in one county may be recorded in the other county in which the land lies. Act of January 26, 1870, P. L. 13, Sec. 1. Extinguishment of ground rent, Act of July 19, 1917, P. L. 1112. Judgments or decrees affecting real estate shall be noted on the margin of the record of the deed to such land, Act of May 17, 1921, P. L. 860. Letters of attorney to satisfy mortgages, Act of April 9, 1849, P. L. 525, Sec. 14. Letters of attorney authorizing contracts, adjustments of accounts, sale of stocks and personal estate, receipt of moneys, discharges and acquittances of legacies or dis- tributive shares, when executed out of State, Act of Decem- ber 14, 1854, P. L. 724 (1855) , Sec 1. See also Act of May 17, 1866, P. L. 1085. Extended to affidavits before any officer of any State authorized to take affidavits. Act of August 10, 1864, P. L. 962. 12 178 Conveyancing in Pennsylvania. Leases for more than twenty-one years, Act of March 18, 1775, 1 Smith's Laws, 422, Sec. 3. Marriage articles whereby title to land is affected are within the recording act. Lessee of Foster v. Whitehill, 2 Yeates 259. Married women. All releases, contracts, letters of at- torney and other instruments of writing which a married woman is or shall be authorized by law to make and execute without the joinder of her husband, and which have been or shall hereafter be so executed by her, may be recorded in the office for recording deeds in the proper county if the same shall have been acknowledged by her without her husband joining, or her signature thereto shall have been duly proved, Act of May 25, 1897, P. L. 83, Sec. 1. Map or plan of lots, where one or all the owners have died, may, after approval by the court, be recorded. The act does not affect adversely persons not parties to the proceedings. Act of June 6, 1893, P. L. 329. Map or plan of subdivision of lands into building lots, making it the duty of owner to record, Act of April 28, 1899, P. L. 123. Marshals' deeds. Act of March 14, 1846, P. L. 124, Sec. 1. Ordinance of any municipality vacating streets, lanes, alleys. Act of May 23, 1907, P. L. 223. Patents granted by the commonwealth, Act of April 4, 1919, P. L. 49. Such deeds or patents may be recorded without acknowledgment. Powers of attorney to make sale, conveyance, mortgage or transfer of lands and tenements. Act of December 14, 1854, P. L. (1855) 724, Sec. 1. All Banks, Trust Com- panies, Building and Loan Associations and other cor- poration mortgages must record a power of attorney designating the person entitled to do any act affecting the lien of the mortgage. Act of May 24, 1921, P. L. 1071. Eeceipts for taxes on unseated lands duly acknowledged, Act of March 9, 1847, P. L. 278, Sec. 1. Eeceipts for money paid for redemption of unseated lands. Act of April 25, 1850, P. L. 569, Sec. 33. Eecording of Deeds and Other Instruments. 179 Receipts for installments of mortgages, Act of March 31, 1823, P. L. 216, Sec. 2. Release of recognizance or dower, Act of May 17, 1866, 1085, Sec. 1. Releases of mortgage were authorized to be given by the Act of April 2, 1822, 7 Smith's Laws 551, Sec. 1, but no provision was made in that Act for recording them. But the Act of December 14, 1854, P. L. (1855) 724, Sec. 3, includes all releases relating to real estate. Release or other instrument in writing being evidence of the payment or satisfaction of any legacy charged on lands and releases to any executor, administrators, as- signee, trustee or guardian. Act of April 15, 1828, P. L. 490, Sec. 1. This Act required two witnesses, but the Act of April 26, 1854, P. L. 501, Sec. 1, dispenses with seals or witnesses. Releases of warranties, covenants and liabilities con- tained in a deed are within the provision of the general recording Act for deeds, etc. {Susquehanna Coal Co. v. Quick, 61 Pa. 328. ) A release not properly acknowledged is not entitled to record. {Powell's Appeal, 98 Pa. 403.) Sheriff's deeds were originally recorded in prothonotary's office, and could be recorded in recorder's office, Act of March 14, 1846, P. L. 124, Sec. 1. But now, by Act of April 22, 1905, P. L. 265, Sections 4, 5, and 6, sheriff's deeds are required to be recorded in the Recorder of Deeds' Office, and indexed in the deed index with the name of the purchaser as grantee and with the name of the defendant or party whose title was divested by the sale, as grantor. Sheriff's deeds need no longer be recorded in the Prothono- tary's Office; the recorder of deeds must, however, give the prothonotary a certificate stating the place of record, which the prothonotary must note on the docket of the case. See also Act of May 8, 1919, P. L. 160. Treasurer's deeds. Act of March 14, 1846, P. L. 124, Sec. 1. Trustee deeds where land and tenements are conveyed, Act of May 6, 1854, P. L. 603, Sec. 1. CHAPTER X. Title by Matter or Record. Court and Judicial Sales. Section Page 190. Definition and Scope . . 180 191. Decree of Court in Suit Affecting Title. Eject- ment 181 192. Suit to Quiet Title. Eule to Bring Eject- ment 183 193. Suit for Specific Per- formance 184 194. Partition and Allotment 184 195. Judgment Liens 186 196. Mechanics' Liens 188 197. Lien of Decedent's Debts 189 198. Sheriff's Sales 190 Section Page 199. Orphan's Court Sales. In General 193 200. Sales and Mortgages for Payment of Dece- dent's Debts 194 201. Sales by Eiduciaries under Orphan's Court Decree 195 202. Sales by Fiduciaries. Under Common Pleas Court Decree 197 203. Sales Under the Price Act 199 204. Sales for Taxes and As- sessments 202 205. Discharge of Liens by Judicial Sale 206 190. DEFINITION AND SCOPE. We have thus far been dealing chiefly with the transfer of title by the voluntary act of the owner of the land. It is possible, however, for title to be aflfected by incumbrance or entirely transferred from one person to another by oper- ation of law and decree or order of court, even against the wish of the owner. Blackstone (2 Bl. 344) gives as one method of transferring title, "title by matter of record." He gives four kinds of such titles: by private acts of parliament ; king's grants ; fines ; and common recoveries. The matter contained in Blackstone's chapter is almost entirely obsolete. His first two kinds of title are radically changed by our different constitutional system; his last two were methods of conveying land that was subject to contingent remainders and are replaced in part by our :80 Title by Matter of Recobd. 181 Price Act. But title by matter of record is still a subject of the first importance. Such title is that which is based upon public record and passes by operation of law or court decree as distinguished from conveyance by voluntary act of the parties. It includes judgment liens, sheriff's sales, sales under decree of the Orphan's Court and Court of Common Pleas, etc. It is probable that the great majority of titles are dependent at some stage upon such matter of record. 191. DECREE OF COURT IN SUIT AFFECTING TITLE. EJECTMENT. When title to land is directly at issue in legal proceed- ings, the decree or judgment is a matter of record which determines the title as between the parties to the proceed- ing. An action of ejectment is the usual method of trying title to real estate. Originally it was limited to actions by a tenant who had been ousted from possession. Later, by alleging a fictitious lease (usually to John Doe), it became an expeditious method of trying all titles and re- placed the old and cumbersome common law real actions. Technically it is not an action to determine the title, but to determine and enforce the right to possession. However, since the right to possession must be based upon a proof of title, the judgment of the Court fixes the title as to all parties to the action and those claiming under them. The action may be maintained by anyone having a present right to possession of corporeal real estate, regard- less of the plaintiff's quantity of interest. A tenant in common may maintain ejectment against his cotenants or strangers (McMahan v. McMahan, 13 Pa. 376), but in an action against strangers by one tenant in common, the judgment covers only his interest and not the entire tract. (Motley V. Brvmer, 59 Pa. 481.) A mere prior possession without proof of legal title is sufficient to support eject- ment against an intruder who proves no right of any kind. {Turner v. Reynolds, 23 Pa. 199.) Such possession, how- 182 CON^VEYANCING IN PENNSYLVANIA. ever, must be of a character indicating permanency of oc- cupation. {Akin V. Byrd, 153 Pa. 23.) Ejectment is not a proper remedy in the following cases: (1) When the plaintiff is in possession. {Krihhs v. Down- ing, 25 Pa. 399.) (2) When the plaintiff, although owner in fee, does not have the right to immediate possession. {Stofflit V. Troxell, 8 W. & S. 340.) (3) For the enforce- ment of a right to an incorporeal hereditament such as an easement or privilege {Garnahan v. Brown, 60 Pa. 23) or a ground rent where no right of reentry is reserved. {Kenege v. Elliot, 9 Watts 258.) Pennsylvania has a peculiar practice of allowing eject- ment for the enforcement of an equitable title. This prac- tice arose in Colonial days when Pennsylvania, as dis- tinguished from the other Colonies, had no courts of equity. Thus a purchaser under an agreement of sale may obtain specific performance by ejectment. {Hawn v. Norris, 4 Binn. 77.) And this remedy was not abolished by the act of the legislature in conferring equity jurisdiction upon the courts. {Corson v. Mulvany, 49 Pa. 88.) Similarly, an unpaid vendor who has put the vendee in possession may enforce payment by obtaining a conditional verdict in ejectment, — either that the purchaser pay the purchase money or relinquish possession. {Thompson v. McKinley, 47 Pa. 353. ) A cestui que trust may maintain the action in his own name without the knowledge or con- sent of the trustee. {Ross v. Barker, 5 Watts 391.) The judgment, of course, is binding only upon the parties to the action and those claiming under them, — it does not affect the title as regards the rights of other parties. The judgment is enforced by a writ directing the sheriff to put the plaintiff in possession, called a writ of lynhere facias possessionem. "Amicable ejectment" is the action provided for in the usual form of modern lease whereby the lessee authorizes the landlord, upon default in payment of rent or upon failure to deliver possession at the termination of the lease, Title by Matter of Record. 183 to enter a confession of judgment. With such a provision the landlord often can obtain possession within a few days or at most within a few weeks, and avoid the long delay of a contested action in the courts. 192. SUIT TO QUIET TITLE. RULE TO BRING EJECTMENT. As stated above, ejectment is not the proper form of action when the plaintifE is in possession. It often happens that an owner in possession wishes to settle a dispute as to the title, raised by a claim on the part of some other person. The fact of this claim constitutes a cloud upon the title and may make the property unmarketable. If the claimant out of possession refuses to bring an action of ejectment the person in possession has a choice of several remedies. Under certain circumstances he may proceed by "bill in equity to quiet title," sometimes called a "bill quia timet." {Ootorora Water Co. v. Garrison, 271 Pa. 421. ) This is not a complete or satisfactory remedy since it is usually limited to cases where invalid instruments are to be cancelled by decree of court. To provide a better remedy the legislature passed an Act (Act of March 8, 1889, P. L. 10, later amended by Act of April 16, 1903, P. L. 212), whereby a person in possession can obtain a rule upon a claimant out of pos- session, directing him to bring ejectment within six months. If the defendant does not enter an appearance or bring such action within the time limit, judgment by default is entered against him. A somewhat similar remedy is provided by the Act of June 17, 1893, P. L. 415, under which such a plaintiff in possession can petition the court to direct an issue whereby the title of the parties shall be tried. For a discussion as to the forms of procedure, see Fearl v. Johnstown (216 Pa. 205), in which the court says that the simpler procedure under the Act of 1889 should be followed when the plain- tiff's possesion is clear, and the Act of 1893 should be em- ployed when the facts as to possession are disputed. 184 Conveyancing in Pennsylvania. Title is not tried in the preliminary action but in the action of ejectment, if brought (under the Act of 1889), or under the issue as directed by the court (under the Act of 1893). {Titus V. Bindley, 210 Pa. 121.) 193. SUIT FOR SPECIFIC PERFORMANCE. Although specific performance of a contract for the sale of real estate may still be enforced by the purchaser in an action of ejectment, the legislature has provided the usual equitable procedure as found in most States. (Act of June 16, 1836, P. L. 785, Sec. 13 ; and Act of February 14, 1857, P. L. 39.) The decree of the court in a successful suit for specific performance, directs that the vendor shall make a proper conveyance. If he refuses to obey the decree, the equity Rules (Rule 88) provide that he himself or his property may be seized and held until he does obey. If he refuses or is unable to obey, the court may order a con- veyance to be made by the sheriff, prothonotary, clerk, or by a trustee specially appointed for that purpose. (Act of April 19, 1901, P. L. 83.) 194. PARTITION AND ALLOTMENT. Thus far we have been considering cases where the decree of the court merely determined who had the legal right to the land and did not of itself operate as a transfer of the title from one person to another. There are circum- stances under which title passes by virtue of the decree and nothing more remains to be done by the parties. Such circumstances exist in the partition of real estate among several owners thereof when the parties fail to agree upon a voluntary division of the property. Partition may be compelled by tenants in common, joint tenants, tenants in partnership but not by tenants by entireties. There are three possible methods of procedure, — at law, in equity, or in the Orphan's Court. Before equity powers were conferred upon courts in Pennsylvania, actions for partition were under the Act Title by Matter of Recobd. 185 of April 11, 1799, 3 Sm. 386, and subsequent acts. The Act of 1857, P. L. 39, extended equity jurisdiction in parti- tion to the courts of Pennsylvania, and the Act of July 7, 1885, P. L. 257, reenacted and revised the procedure of equitable partition. In practice the equitable procedure is much more satisfactory and has largely replaced the old partition at law. {Doyle v. Brundred., 189 Pa. 113.) When the land forms part of a decedent's estate, juris- diction is conferred upon the Orphan's Court by "the Act of June 7, 1917, P. L. 337, which takes the place of a large number of previous acts. This jurisdiction is not exclu- sive and partition of a decedent's estate may still be had at law or in equity. Since most cases of partition are in the Orphan's Court, and since the procedure there is very much the same as that in the Common Pleas, reference will be made only to the Act of 1917 in the following brief summary of pro- cedure. If it is possible to divide the property equitably among the several owners, such a decree is entered in accordance with the report of commissioners appointed by the court to conduct the hearing and make partition. (Act of 1917, P. L. 337, Sec. 8. ) Such a decree by the Orphan's Court, or in equity, or a judgment in partition at law operates of itself to vest title to the respective portions in the parties entitled and usually no conveyances by the parties are necessary. (Act of 1917, Sec. 16; Griffiths v. Phillips, 3 Grant 381 ; Wittmer v. Bauer, 14 W. N. C. 304. ) If it is not possible to divide the property into parts exactly equal in value to the respective shares of the parties, the court may direct that certain parts shall be taken subject to the payment of certain sums to the other parties. (Act of 1917, Sec. 9. ) Such a sum is called an "owelty." The parties have an option of bidding for the several parts or for the whole property at a price above the valuation as fixed by the commissioners. (Act of 1917, Sec. 12.) If there are no bids the widow and heirs are allowed to choose 186 Conveyancing in Pennsylvania. the parts at the valuation fixed, the widow having first choice and the heirs having choice in the order of seniority in age. (Act of 1917, Sec. 13.) If the commissioners find that the land cannot be divided without spoiling the whole, or if any party refuses to accept an allotted part (as often happens when it is subject to an owelty) then the property (or the part, as the case may be) is sold and the proceeds divided. (Act of 1917, Sec. 21. See Sec. 199 of this treatise.) A situation somewhat similar to title by partition is where a husband or wife elects to take real estate in partial or full satisfaction of the |5,000 allowed under the Intes- tate Act in addition to one-half the estate. The decree confirming an appraisement and allotment of such real estate shall be recorded in the offlce of the Kecorder of Deeds. (Act of June 7, 1917, P. L. 429, Sec. 2.) Another similar situation is the choice by a widow or children of real estate as the $500 widow's or children's exemption. (Act of June 7, 1917, P. L. 429, Sec. 12. ) After compliance with the provisions of the Act as to appraise- ment, advertisement, etc., the decree confirming the allot- ment shall be recorded in the office of the Eecorder of Deeds. 195. JUDGMENT LIENS. We have been considering decrees or judgments of court when title to land is directly at issue. We now come to a second general division of "title by matter of record," where title is affected indirectly as a result of liens that bind real estate by operation of law. As early as 1688 the lands of judgment debtors were subject to liens as security for the debts. (See 1 Sm. L. 8-9.) The lien attaches immediately upon entry of judg- ment without the necessity for any further proceeding (Act of March 21, 1772, 1 Sm. L. 390, Sec. 2-3.) It binds all the real property of the debtor (both legal and equitable) situate in the county where the judgment is Title by Matter of Record. 187 entered, but not property situate in any other county. (Act of March 2, 1799, 3 Sm. L. 358.) To make the judg- ment a lien upon property in another county two forms of procedure are possible. The judgment can be entered in the second county by filing a certified copy of the whole record, or a writ of testatum fi fa can be obtained from the prothonotary of the county where the judgment is entered, directed to the sheriff of the county where the land lies. Before this writ can be obtained there must either be a return of nulla bona upon an execution in the first county or the plaintiff must file an affidavit that the judgment debtor has no real or personal property within such county. The lien of a judgment binds only real estate which the defendant owns at the time and does not automatically bind property which lie had previously sold (Biting' s Ap- peal, 17 Pa. 211) or which he acquires later. {Lea v. Hopkins, 7 Pa. 492.) To bind after acquired property a writ of fieri facias must be issued against the land in ques- tion and the lien dates from the docketing of the fi fa. (Ramsey v. Shreiner, 13 D. K. 641.) The lien of a judgment expires at the end of five years as against other lien creditors or purchasers unless it is re- vived by the issuance of a writ of scire facias, served on the original debtor (if living and in the county) and also upon the terre-tenwut if the property has passed into the hands of any other person. The lien can thus be kept alive indefinitely as of the original date by revival every five years. iJven though the lien is lost by failure to revive, the judgment is still effective, and a new lien can be se- cured by the simultaneous issuance of writs of sci/re facias and fieri facias dating only from the verdict on the scire facias. (Ramsey v. Shreiner, 13 D. R. 641.) The lien binds all real estate of the judgment debtor whether a fee, a life estate, a ground rent, an equitable interest, or a future estate. It does not bind personal property and hence does not attach to a leasehold interest or a mortgage. 188 Conveyancing in Pennsylvania. The judgment may be limited to a particular piece of property by agreement filed of record. {Hendrick v. Thomas, 106 Pa. 327). So, too, the lien may be released as to a particular property without afEecting the lien as to the rest. {Kirk's Appeal, 87 Pa. 243.) 196. MECHANICS' LIENS. These are a special form of judgment lien. From an early date it has been the policy of the law to specially favor mechanics and material men who furnish labor and ma- terials that go into a building. As to the wisdom of such special legislation either from the standpoint of the build- ing trades or the general public, there is much difference of opinion. The laws, however, are sanctioned by long custom and no legislature probably would dare to repeal' them. The first law was passed in 1803 and the law now in force was approved June 4, 1901, ( P. L. 431 ) and amended March 24, 1909, (P. L. 65.) Although the law is within the class of special legislation prohibited by the Consti- tution of 1874, it has been held that the constitutional pro- hibition does not apply to policies of special legislation that were established before 1874. {Felin v. Lomist Realty Co., 232 Pa. 123.) The acts provide, in general, that any person, whose labor or materials goes into a building and who is unpaid, may file a lien against the building and the land on which it stands. The lien dates from the time the work began and not from the date of filing or the date of judgment. {Ketcham v. Land Title & T. Co., 237 Pa. 391.) Certain requirements as to notices to the owner and time of filing must be strictly complied with. [Wolf Co. v. Penna. B. R., 29 Pa. Superior Ct. 439.) A distrinction is drawn between new construction, and repairs to old buildings. In the former case, if the claim is by a sub-contractor, he has six months after the completion of the work within which to file his claim but a notice of intention to file a Title by Matter op Record. 189 claim must be served on the owner at least one month before filing the claim, and within three months after the work is finished. In the latter case, the subcontractor has three months within which to file a claim, but notice of intention to file a claim must be given at least one month before the claim is filed and forty-five days after the work is completed. It is open to question whether, in the case of repairs, the provision of the Act of 1901 requiring notice before completion of the work is still in force. After the claim is filed notice of such fact must be given to the owner. The lien is enforced by a writ of scire facias, upon which a judgment is entered in due course if there is no? defense. If the claim is by a sub-contractor, both the contractor and owner are named as defendants. As to the contractor, the judgment is a personal one, but as to the owner it is a judgment in rem, binding only the property. It is possible for the owner and contractor to provide by written agreement that no mechanics liens shall be filed and this agreement if filed in the office of the prothonotary prior to the commencement of the work, is binding upon all persons, or if not so filed is binding upon all sub-con- tractors having actual knowledge of it. 197. LIEN OF DECEDENTS' DEBTS. This is another special form of lien in favor of creditors which had its origin as early as the charter of William Penn. (See Kirk v. Van Horn, 265 Pa. 549, for an his- torical treatment.) It is provided by the Act of June 7, 1917, P. L. 447, Sec. 15, known as the Fiduciaries Act that all the debts of a decedent shall remain a lien upon his estate for the period of one year after the decease of the de- cedent. This applies to all debts and is not limited to judg- ments or even to debts upon which suit has been begun. The lien expires at the end of one year unless: (1) It is a debt not due until after the expiration of one year; and a statement thereof is filed in the office of the prothonotary 190 Conveyancing in Pennsylvania. before the end of the year; (2) it is a judgment lien; (3) it is a mortgage lien; or (4) an action is brought against the executor or administrator within the year for the re- covery of the debt. This action must be brought in the Court of Common Pleas and if prosecuted to judgment, the judgment becomes a lien upon all the real estate of the decedent for a period of five years. This judgment lien can be kept alive by subsequent revivals every five years. A judgment entered before the death of decedent con- tinues for five years after his death without revival but no longer. (Act of May 3, 1909, P. L. 386 ; Brubaker's Estate, 59 Pa. Superior Ct. 109.) This is true of all land bound by the lien whether owned by the decedent at death or not. {Mercy Hospital v. McCwrteen, 247 Pa. 328.) The sale of property to satisfy the liens of creditors will be considered in the two following sections and discharge of liens by judicial sale will be discussed in Section 205. 198. SHERIFF'S SALES. The method whereby a creditor enforces a lien upon his debtor's real estate is by a sheriff's sale. In the case ofi an ordinary judgment the procedure is first to issue a writ of fieri facias, by virtue of which the Sheriff is authorized to levy on certain property described in the writ. The next step (unless defendant has waived inquisition) is an inquest by a sheriff's jury to ascertain whether the net rents and profits will be sufficient to satisfy the debt within seven years. If so, the plaintiff is put in possession under a writ of liberari facias. If the rents and profits are found to be insufficient (as is almost always the case) the land is sold by the sheriff under a writ of venditimii exponas. In the case of mechanics' liens and mortgages no writ of fi, fa or inquisition is necessary and the land is sold by the sheriff under a writ of levari facias. Sheriff's sales and the title passed thereby are governed by the very important Act of June 16, 1836, P. L. 755, Title by Matter of Record. 191 and amendments that have been added from time to time. That act provides ( Sec. 66 ) that a purchaser at a sheriff's sale takes the same estate as the original owner or debtor had. This provision applies only to the estate of the orig- inal owner and not to liens upon the land, since, as we shall see later, a purchaser takes the property discharged of certain kinds of liens. ( See Sec. 205. ) A purchaser at a sheriff's sale is charged with notice of all matters of record affecting the title and is protected against unre- corded claims. The purchaser also succeeds to all the rights of the lien creditor for whose debt the land is sold: Thus, he takes free and clear of a prior unrecorded deed or mortgage, even though notice of such deed or mortgage is given at the sale. {Uhler v. Hivtchmson, 23 Pa. 110.)' The title of the purchaser may be invalidated by irregu- larity in the proceedings under which the property is sold. Every step in the proceedings from the service of summons in the original action to the final acknowledgment and delivery of the sheriff's deed must be taken strictly in ac- cordance with the prescribed rules of law in order to make the title valid. Certain errors, however, must be objected to before the acknowledgment of the sheriff's deed or else the parties seeking to invalidate the sale lose the right to make such objection thereafter. In other words certain defects in the proceedings are cured by the sheriff's ac- knowledgment. The Act of April 22, 1905, P. L. 265, pro- vides for the method of acknowledgment and delivery and the final passing of title. The deed must be acknowledged by the sheriff who made the sale (or his successor) before the prothonotary or deputy prothonotary, but not earlier than the return day of the writ under which the sale was made. Previous to this time or subsequent to acknowledg- ment and before final delivery, any persons interested in the property may file exceptions to the sale. If no excep- tions are filed the deed is delivered to the sheriff to be recorded in the office for the recording of deeds and such delivery passes title to the purchaser. 192 Conveyancing in Pennsylvania. In general it is said that the only objections to the title that may be asserted after acknowledgment and delivery of the sheriff's deed are those based upon absence of au- thority to make the sale or the presence of fraud in the sale. All other errors and irregularities, however gross, are cured by the acknowledgment. {Mencke v. Rosenberg, 202 Pa. 131.) Among the errors that cannot be objected to after ac- knowledgment and delivery but which may have furnished ground for setting aside the sale if objected to in time, are the following : (1) Inadequacy of Price. {Lyle v. Armstrong, 255 Fa. 227.) (2) Errors of description of the property in the ad- vertisements of the sale. (Lyle v. Armstrong, 235 Pa. 227.) (3) Discrepancies between the name of the purchaser as shown in the sheriff's return and the name of the grantee in the sheriff's deed. {Jackson v. Gunton, 26 Pa. Superior Ct. 203.) (4) Failure by the sheriff to properly return the writ. [Hinds V. Scott, 11 Pa. 19.) (5) Statement on the return that the purchase price was unpaid and the property not sold. {Foster v. Gray, 22 Pa. 9.) Among the objections that can be raised against the purchaser's title at any time, even after acknowledgment are the following: (1) Void judgment. A judgment may be void because the court had no jurisdiction {Camp v. Wood, 10 Watts, 118), or because illegally entered {Caldioell v. Walters^ 18 Pa. 79), or because defendant was not properly served with summons. However, if the judgment is voidable, and not void, the rule is different. In such case the purchaser takes a good title even though the judgment is later re- versed upon appeal. (Act of 1705, 1 Sm. L. 57, Sec. 9.) (2) Sale on -fi fa without inquisition or writ of vend. ex. {Black V. Conwell, 6 D. R. 66.) Query as to whether sale Title by Matter of Record. 193 on a vend ex without inquisition is cured by acknowledg- ment. {Rector of St. Bartholomew Church v. Wood, 80 Pa. 219.) (3) Acknowledgment by Sheriff before return day. {Olamcey v. Jones, 4 Yeates 212.) (4) Sale on lien that had been previously discharged. {Leeds v. Artzt, 2 W. N. C. 507.) (5) Fraud by the Purchaser. {Faust v. Haas, 73 Pa. 295.) The Act of April 22, 1905, P. L. 265, gives the form of a sheriff's deed, which is in the form of a deed poll. (See Sec. 70. ) The Acts of April 8, 1905, P. L. 121, and April 20, 1905, P. L. 329, provide remedies whereby the purchaser under a sheriff's deed can obtain possession of the prop- erty, if possession is refused. 199. ORPHANS' COURT SALES. IN GENERAL. In general, sales of real estate are made under order of the Orphans' Court in four classes of cases: 1. Parti- tion by sale; 2. Sales to Pay Decedent's Debts; 3. Sales by Fiduciaries, and 4. Sales under the Price Act. These classes are not exhaustive nor mutually exclusive but will serve as a convenient division of the subject. The legis- lature in 1917 passed a group of seven acts dealing with all aspects of decedents estates, to replace a host of earlier acts that were then in force. These seven acts are as fol- lows ( 1 ) Intestate Act, — to be considered in chapter XIV. (2) Wills Act, — to be considered in chapter XV. (3) Revised Price Act, — to be considered in Section 203. (4) Partition Act, — already considered in Section 194. (5) Fiduciaries Act, — to be considered in the two following sections. (6) Orphans' Court Act, and (7) Register of Wills Act, — which need not be considered in a treatise on real estate. In all sales under decree of the Oi'phans' Court the title acquired by the purchaser is the same as that held by the decedent or other prior owner, except that certain lieng 13 194 Conveyancing in Pennstlvanu. are discharged by the sale as considered later in Section 205. In all cases the purchaser takes the property free of any obligation as to the application of the proceeds. The sale is valid only when made in strict accord with the decree, which forms an essential link in the chain of title and is usually referred tO' or recited in full in the deed. 200. SALES AND MORTGAGES FOR PAYMENT OF DECEDENT'S DEBTS. In general, an executor or administrator has no author- ity over the real estate of the decedent. Title vests directly in the heirs or devisees at the death of decedent and the personal representative should not include the real estate in his account. If, for some reason, the executor or ad- ministrator handles rents and profits or proceeds from the sale of real estate, such monies must be accounted for separate and apart from the personal estate. There are circumstances under which an executor or administrator is required to sell real estate. One such case is where an executor is authorized or directed by will to sell and distribute the proceeds, to be considered in the following section. Another such case is the sale of real estate to pay debts. The personal estate of the decedent is primarily liable for the payment of debts, but section 16 of the Fiduciaries Act (Act of June 7, 1917, P. L. 447) provides that, if the personal estate or rentals from real estate, are insufficient to pay debts, the executor or administrator shall proceed without delay to sell or mortgage so much of the real estate as shall be necessary to supply the deficiency. Such a sale must be made under the direction of the Orphans' Court and the procedure provided by the act must be strictly complied with. The first step is the filing of a petition for leave to sell or mortgage together with an account of the personal estate, the real estate and the debts. The Court may direct a public sale, or may au- thorize or confirm a private sale. In either case provisions as to advertising must be strictly complied with, and any Title by Matter of Record. 195 creditor or heir can object to a private sale for insuffi- ciency of price and may offer to pay an increased price. If the executor or administrator or any of several co-execu- tors or co-administrators shall die or otherwise become incapable of acting the act provides for the completion of the' sale and the conveyance to the purchaser, by su(f- cessors or by the Clerk of the Court. Title acquired by the purchaser shall not be affected by subsequent revocation of the letters testamentary or letters of administration of the person making the sale, nor shall the title be affected by irregularity or defect in his original appointment. If the real estate is situate in part or entirely in another county the act makes provision for procedure in the Orphans' Court of such other county. 201. SALE BY FIDUCIARIES UNDER ORPHANS' COURT DECREE. There are three general classes of Orphans' Court sales by fiduciaries : ( 1 ) Sale by Executor under implied power. (2) Sale by Trustee and (3) Sale by Guardian. The last two classes of sales are made under the Price Act to be considered later, but involve certain provisions of the Fiduciaries Act and they are therefore considered separately. (1) Sale hy Executor. An executor has no authority to sell real estate except for the payment of debts (See preceding section) unless the will contains an express or implied power. When such power is possessed by an executor his position is really that of a trustee, although certain special provi- sions as to executors should be noted. If the power is expressly given to the executor the sale may be made with- out any order of court. {Fiduciaries Act, Sec. 28 (a) j Schwartz's Estate, 168 Pa. 204.) If there is an express power of sale in the will, but not expressly given to anyone by name or description, the power vests in the executors, but must be exercised under the direction of the Orphans' Court. {Fiduciaries Act, Sec. 28 b.) The power may be 196 Conveyancing in Pennsylvania. implied, as, for example, a direction to convert effects into money (Schropp v. Shaeffer, 2 D. K. 362), or where it is the intention of the will that the whole estate both real and personal, be considered as one fund for distribution. ( Oray v. Henderson, 71 Pa. 368. ) (2) Sale bp Trustees. Land may be devised in trust, either to the executor, or to sonae other person law of Pennsylvania the mere relation of landlord and tenant is sufficient {Barns V. Wilson, 116 Pa. 303). The term "covenant for quiet enjoyment" means that the landlord will do nothing to disturb the tenant's possession and will defend any suit brought to evict the tenant or to contest the landlord's title. It is used in a Special, legal sense rather than in a popular one and does not mean that the landlord will defend or indemnify the tenant against mere trespassers who may disturb the tenant's peaceful possession. {Barns v. Wilson, 116 Pa. 303.) The tenant's right to possession is an exclusive one and the landlord has no right to enter the premises without the consent of the tenant unless the contract, expressly or impliedly confers such right. Most leases expressly give the lessor the right to enter for certain purposes such as making repairs, or putting up a "for sale" or "to let" sign. In the absence of such a provision the lessor has no more right than a stranger to enter the premises except for the purpose of collecting rent, and perhaps for the purpose of discovering waste (i. e., injury or destruction of the prop- erty) by the tenant. 314. RIGHTS or TENANT UPON EVICTION OR TRESPASS. WHAT CONSTITUTES EVICTION. If the possession of the tenant is interfered with by a stranger or by the landlord, without lawful right, the tenant has a -right to bring an action of trespass against the intruder. If the possession of the tenant is so inter- fered with as to constitute an eviction he has the right to consider (the lease as terminated, to be relieved of any further obligation under it, and to sue the landlord for breach of the covenant of quiet enjoyment. It is often difficult to determine whether an eviction has really re- 318 CONVETANCING IN PENNSYLVANIA. suited or whether the tenant merely has an action of tres- pass. It is necessary to distinguish between acts by the landlord and acts by third parties. Acts hy the Landlord. Any unauthorized ^interference by the landlord of the tenant's right to possession gives the tenant an immediate right to sue the landlord in trespass. Whether there is an eviction so as to give the tenant the option of terminating the lease depends upon the extent of the interference. Many acts short of actual, physical expulsion may constitute an eviction in the legal sense. Thus an interference by threats with the tenant's right to sublet was considered an eviction {Doran v. Chase, 2 W. N. C. 609). And extensive repairs by the landlord beyond those consented to by the tenant amounts to an eviction and relieves the tenant of further liability for rent {Hoeveler v. Fleming, 91 Pa. 322). But a mere unauthorized entry by the landlord, even to remove coal, is not an eviction and creates only the right to dam- ages for the trespass. {Tiley v. Moyers, 43 Pa. 404.) If the landlord enters to make extensive alterations under orders of the city authorities, his entry is not unlawful and does not give rise even to a right of action for damages. This is true even though the action of the authorities was unconstitutional. {Dunn v. Mellon, 147 Pa. 11.) Acts hy Third Parties. If the interference of the tenant's possession by a third party is not under a paramount claim of title there is no eviction and the tenant cannot terminate the lease. This rule is applied even though the interference is so extensive as to entirely destroy the value of the lease. (Oakford v. Nixon, m Pa. 76.) The tenant, of course, can sue the third party for damages resulting from the trespass or the nuisance, but has no right of action against the landlord. If, however, the tenant's possession is destroyed or even interfered with by a person claiming a paramount title, he can deduct his damages from the rent, or terminate the lease and sue the landlord for breach of covenant. {Peters Landlord and Tenant. 319 V. Bruhh, 21 Pa. 455.) It is necessary, however, to con- stitute an eviction that the claim of the third party be a successful claim so as to actually prejudice or destroy the tenant's possession. The mere bringing of an action of ejectment, although the landlord is under obligation to defend, does not of itself amount to an eviction. A judg- ment in ejectment, even though there has been no actual eviction, constitutes an eviction in law. (Boss v. Dysart, 33 Pa. 452.) A sale of the premises under a lien prior to the lease is an eviction and the tenant can hold the landlord liable for damages even though the tenant knew of the lien when he signed the lease. [Einfeld v. Shermer, 56 Pa. Superior Ct. 4.) An actual eviction by the State under the exercise of the power of eminent domain gives the tenant no right of action against the landlord (Schuylkill, etc., R. Go. v. Schmoele, 57 Pa. 271 ) . The tenant, however, may share in the com- pensation for the taking. {Iron City Auto Co. v. Pitts- burgh, 253 Fa. 478.) 315. USE OF THE PREMISES. Unless the lease provides otherwise a tenant may use the premises for any lawful purpose. The customary form of lease, however, specifies the use to which the premises are to be put, and contains a covenant on the part of the lessee not to use them for any other purpose without the written consent of the lessor. It seems the better rule that a business tenant can use the outer walls for signs in the absence of any stipulation to the contrary [Scott v. Fox Optical Co., 38 Pitts. L. J. [O. S.] 368) but the opposite result has been reached. (Hele V. Stewart, 19 W. N. C. 129.) A lease of property carries with it all easements and appurtenances even though they are not expressly men- tioned. A tenant, however, may not mine coal, cut trees 320 Conveyancing in Pennsylvania. or commit any other form of waste. {Kingston Proprietors V. Coul Co., 236 Pa. 350.) Premises Occupied iy Several Tenants. Where there are several tenants in the same building, questions often arise as between the tenants concerning the use of the premises. The law implies an understanding on the part of each that he will make no use that abridges the rights of the other tenants. Thus a second floor tenant was enjoined from keeping the front door locked during day time (Kleeman v. Kenvnierer, (3 Kulp. 481), and upper floor tenants were allowed to use the first floor entry way for signs and show cases despite the objection of the first floor tenant. ( Cunningham v. Entrekin, 3 Dist. Eep. 291.) 316. CONDITION OF THE PREMISES. REPAIRS. Obligation of Landlord. There is no implied covenant by the landlord that the premises are fit for any particular purpose for which they may be rented {Wood v. Carson, 257 Pa. 522). Nor is there a covenant that the premises are tenantable {Levine V. McClenathan, 246 Pa. 374). The rule caveat emptor { "let the buyer beware" ) is strictly applied and the tenant is liable for rent for the full term, no matter how defective or untenantable may be the condition of the premises. The tenant, however, is entitled to receive the premises in the condition existing at the time the lease was signed. Therefore, if the condition of the premises changed between the time of the execution of the lease and the delivery of possession, there is a breach by the landlord of an implied warranty and the tenant is entitled to rescind the lease. ( Schomaker v. Heinz, 77 Pa. Superior Ct. 30. ) Neither is there an implied covenant on the part of the landlord to make any repairs. If the tenant makes re- pairs, he cannot charge them to the landlord or deduct them from the rent, even though the repairs are absolutely necessary to make the premises habitable {Huher v. Baum, Landlord and Tenant. 321 152 Pa. 626). The fact that the landlord had been accus- tomed voluntarily to make repairs in the past does not raise any presumption of a liability for repairs. {Moore v. Weber, 71 Pa. 429.) When the several floors of a building are rented to dif- ferent tenants, a somewhat different rule is applied and the landlord is responsible for the maintenance of the stair- way in good repair. There is necessarily an implied cove- nant that each tenant shall have proper means of egress and ingress. {Lewin v. Pauli, 19 Pa. Superior Ct. 447.) A different problem is presented when the landlord is sued for injuries resulting from a dangerous condition of the premises, known to the landlord when the premises were rented. In such a case, the landlord is liable to the person injured even though the tenant had covenanted to make repairs (Folkman v. Lauer, 244 Pa. 605). The land- lord, of course, could obtain reimbursement from the tenant under the latter's express covenant. Obligation of Tenant. A tenant, on the other hand, is bound to make ordinary repairs of a small nature that are necessary to keep the premises in good order and prevent more serious injury. There can be no inclusive rule covering all cases and the rule can best be explained by way of example. Thus a tenant is bound to remove obstructions from drains, replace broken windows or doors (Long v. Fitzsimmons, 1 W. & S. 530 ) . A tenant is not bound, however, to make permanent repairs such as replacing a roof, nor is he compelled to restore the premises if they are destroyed. (Opinion of Rogers, J., in above case.) 317. EXPRESS COVENANT TO REPAIR. By Landlord. Either party may make an express covenant to repair and such provisions are usual in leases. Many leases contain covenants on the part of each to make certain stipulated kinds of repairs, differing in each case. When the land- 322 Conveyancing in Pennsylvania. lord expressly covenants to make repairs the question often arises as to whether a breach of such covenant gives the tenant the right to rescind the lease or only a right to damages. The answer to the question depends partly upon the terms of the lease, and partly upon the extent of injury caused by the breach. If the repairs are slight, the tenant merely has a right to deduct the amount of the repairs from the rent or to sue the landlord for damages, and is not entitled to rescind the lease [Overmyer v. Nichols, 6 Binn. 159). The same is true where it is clear from the terms of the lease that the covenant for repairs and the covenant for rent were independent. {Bradley v. Trust Co., 7 Pa. Superior Ct. 419.) Where, however, the injury to the tenant from the land- lord's failure to repair is so serious as to greatly impair or destroy the value of the lease, such a breach amounts to an eviction and entitles the tenant to rescind the lease. The failure to maintain a heating plant in proper condi- tion was held to be such a breach. {Bittner v. Bangeri, 35 Pa. Superior Ot. 448 ; McSorley v. Allen, 36 Pa. Superior Ct. 271.) By Tenant. Covenants for repairs on the part of tenants are perhaps more common. Such covenants may specify in detail as to the kind of repairs, but are usually in general terms that require interpretation. A covenant to make "all necessary repairs" has been interpreted as meaning more than mere tenantable repairs, and to include permanent repairs "necessary to protect the house from waste and ruin." {Wade V. Pittsbii^rgh Tool Co., 40 Pa. Superior Ct. 361.) A common form of such covenant is found in the promise of the tenant to deliver up the premises "in as good order and repair as the same now are, reasonable wear and tear and damage by accidental fire excepted." Under such a covenant the tenant is bound to make all repairs, however extensive, that are not within the exception clause. Upon failure of the tenant, the landlord can make the repairs Landlord and Tenant. 323 at the end of the term and hold the tenant responsible for the cost, but he cannot claim a breach of the covenant before the end of the term {Oandy v. Elaw, 269 Pa. 320). Care should be taken by the tenant to make the exception clause broad enough to cover all the contingencies intended by the parties. Thus it was held that the clause "reason- able wear and tear and acts of God above excepted" did not cover loss by fire and the tenant was bound to restore a burned building. {McKinley v. Jutte Co., 230 Pa. 122.) A tenant is bound by a covenant for repairs, even though the building becomes uninhabitable because of excessive dampness. (Jackson v. Stewart, 31 Pa. Superior Ct. 58.) 318. DESTRUCTION OF BUILDINGS. It follows, from the rules above stated, that neither land- lord nor tenant is liable on an implied covenant to restore buildings destroyed by fire or other agency. A tenant, however, in the absence of an express provision to the con- trary, is liable for rent for the full term {Penna. Co. v. Bodek, 77 Pa. Superior Ct. 473). This liability is not af- fected by the fact that the landlord may have received in- surance money (Magaw v. Lambert, 3 Pa. 444). The rule, however, does not apply to tenants in an apartment house, and their obligation to pay rent ceases with a destruction of the building. (Paxson v. Potter, 30 Pa. Superior Ct. 615.) A covenant by the landlord to make all necessary re- pairs, would protect the tenant and would compel the landlord to restore the building for the benefit of the tenant. The interests of both parties would be protected by a provision for a termination of the lease upon a de- struction of the building by fire or otherwise. As we have seen, a covenant by the lessee to make all repairs or to deliver up the premises in the same condition as received, makes the tenant liable for the cost of restoring a destroyed building, unless there is an exception of such liability (Hoy v. Holt, 91 Pa. 88). Although to construe 324 CONVETANCING IN PENNSYLVANIA. a covenant to repair as meaning a covenant to rebuild seems a distortion of language and is usually at wide variance with the real intent of the parties, the principle is now too firmly established to be questioned. A tenant who covenants to make all repairs without exception may of course protect himself by fire insurance. (Boyer v. Dickson, 7 Phila. 190.) 319. RENT. When Paifiible. Eent may be payable in a sum certain, in royalties, in kind, or in services. Unless the lease provides otherwise rent is payable at the end of the rent term. If the lease is for three years for a gross sum, the rent is not due until the end of the three years. If the rent is at a yearly or quarterly or monthly rate it is payable at the end of each aliquot period as the case may be. Most leases, however, contain a provision that the rent is payable in advance at the beginning of each rent term. Such an intention may be implied from the language of the lease. {Ellis v. Rice, 195 Pa. 42.) It is also a frequent provision in leases that, upon de- fault by the lessee in certain covenants or upon a removal or attempted removal by the tenant of any of his goods from the premises, the rent for the whole term shall be due and payable. In such a clause the word "term" means the entire term of the lease and not the rent term of a month or a year. Such a provision is valid and enforceable. {McAnniny v. Miller, 19 Pa. Superior Ct. 406.) A pro- vision, however, that the whole rent is to become due upon the happening of a certain contingency, is not self-operat- ing. The landlord must give notice to the tenant that he elects to take advantage of such a covenant. {Harrop v. Lutz, 53 Pa. Superior Ct. 195. ) It is frequently said that rent is not apportionable in respect of time. This means that the owner of the reversion at the time the rent falls due is entitled to the whole rent Landlord and Tenant. 325 even though such person was not the owner during the whole of the term for which the rent in question is payable. Thus if leased premises are sold with no express provision on the point, the vendor need not account to the purchaser for rent collected in advance, nor must the purchaser ac- count to the vendor if the rent day falls after the date of conveyance. If rent is paid in advance to a life-tenant who dies before the end of the term for which the rent was paid, the estate of the life-tenant is not liable to account to the remaindermen for any portion of the rent received ( Agnevfs Estate, 17 Pa. Superior Ct. 201; Archambault's Estate, 232 Pa. 347). An exception to the rule that rent is not apportionable is found in the preferred claim of a landlord to the proceeds of a sheriff's sale of the tenant's goods (see Section 327). In such a case the rent is considered as accruing from day to day and is apportioned to the day of the levy. {Wickey v. Eyster, 58 Pa. 501. ) Where Payable. Rent is payable on the premises unless the lease fixes some other place. [Hughs v. Lillihridge, 8 t). R. 358.) The landlord must make demand on the premises before he can declare a forfeiture of the lease for non-payment of rent and this is true even though the tenant has been in the habit of bringing the rent to the landlord (Rea v. Eagle Transfer Co., 201 Pa. 273). If, however, the rent is pay- able at a particular place (such as the common provision for payment to the landlord's agent) no demand for the rent either on the premises or at the place designated is necessary. ( Singer v. Sheriff, 28 Pa. Superior Ct. 305. ) The tenant may always off-set against the rent, damages for breach of any covenant by the lessor, or in fact any other debt owing him by the landlord. He may also pay off any incumbrance in order to prevent an eviction and, by virtue of subrogation to the rights of the previous lien- holder, can set off the amount of such payment against the rent. 326 CONTEYANCING IN PENNSYLVANIA. Taxes, Assessments, etc., as Rent. Taxes are usually payable by the lessor, but leases (par- ticularly long-term leases) sometimes contain covenants that the lessee shall pay all taxes, assessments, water-rent, etc. Under such a covenant, the lessor, if forced to pay such charges, can collect them from the tenant as rent. A general covenant to pay taxes includes federal income tax {North Penna. B. R. Co. v. P. S R. Ry. Co., 249 Pa. 326), and also excess profits tax {Phila. City Ry. Co. v. P- R. T. Co., 263 Pa. 561) , although such taxes were not in existence when the lease was executed. 320. RIGHTS AND REMEDIES OF LANDLORD. AS- SUMPSIT FOR RENT. Since a lease is a contract, the landlord, upon a default in payment of rent or in other obligations of the tenant, has the usual remedies for breach of contract. Such a pro- ceeding, however, takes considerable time, if the tenant defends the action, and the landlord can obtain no lien upon the tenant's property until judgment is secured. A much better remedy is the special right of "distress" con- sidered in the following sections. 321. DISTRESS. IN GENERAL. From the earliest days of the common law a landlord has had the right to enter upon the premises and seize goods found there, as a means of enforcing the obligations of the tenant. This is called the "right to distrain," or "distress." Under the feudal system, when rent was by way of services rendered the overlord, the lord had no right to sell the goods, and distress was merely a means of forcing the ten- ant to perform his obligations. Later where leases for terms of years became customary and rent was reserved in money the landlord was given the right to sell the goods as a means of obtaining the amount of rent due. In Penn- sylvania the right of distress has always included the right to sell. Landlord and Tenant. 327 This remedy is obviously a very effective one. It en- ables the landlord upon default by the tenant, to secure an immediate lien upon the goods on the premises. It has the additional advantage of usually forcing a performance of the tenant's obligations. The mere knowledge by the tenant of the existence of the right is often suf&cient for this purpose, without the necessity for its exercise. In Pennsylvania, the right of distress and the procedure thereunder are governed chiefly by the Act of March 21, 1772, 1 Sm. L. 370. A distress does not bar the landlord from exercising simultaneously any other rights under the contract. 322. WHEN THE RIGHT OF DISTRESS EXISTS. The right to distrain exists only when the rent may be reduced to a certainty. There can be no distraint for use and occupation {Wells v. H Ornish, 3 P. & W. 30). The right is restricted to what may be regarded strictly as rent and cannot include damages for breach of other covenants, such as a covenant to repair. Eent, however, for which distraint may be made, may be in services, or in kind, and may include taxes which the tenant has covenanted to pay. {Shaffer v. Sutton, 5 Binn. 228.) The landlord cannot distrain before the rent becomes due, but the right can be exercised the day after a default, even though the rent is payable in advance. There is no limitation as to time and the right continues after the termination of the tenancy so long as the landlord has title and goods of the tenant remain on the premises {Moss^ Appeal, 35 Pa. 162). The right continues after the ter- mination of the tenancy as regards goods of the tenant remaining on the premises, even though the landlord has made a new lease to a third party {W. K. Kuhn Co. v. Fell, 225 Fed. 13). If, however, the goods have been fairly sold to the new tenant the right of distress is lost {B'poth V. Hoenig, 7 D. E. 529). And a tenant's goods may be seized for rent due on a prior lease, even though he 328 CoNVETANCiNa IN Pennstlvanu. is holding under a new lease. {Parker & Kellers Appeal, 5 Pa. 390.) If, however, the new lease is jointly to a tenant and a third party, it seems that the right of distress cannot be exercised so as to prejudice the rights of such third party {Beltshoover v. Waltman, 1 W. & S. 416). The right does not exist after the death of the tenant. {Qandy v. Dickson-, 166 Pa. 422.) 323. WHAT GOODS MAY BE DISTRAINED. The right is not limited to the tenant's own property, but extends to all property found on the premises, with certain exceptions to be considered later. Thus a sub- tenant's goods may be seized, even though the sub-tenant has paid his rent in full and there are sufficient goods of the tenant on the premises to satisfy the rent. {McComb's Appeal, 43 Pa. 435. ) If the sub-tenant holds over after the term, his goods are still liable to be distrained for rent due by the original tenant. ( WMtinff v. Lake, 91 Pa. 349. ) The right extends to goods of a stranger, subject to the following three exceptions : 1. If the goods of the stranger are on the premises by way of the tenant's business or trade, they are exempt from distraint. The following classes of goods have been in- cluded within this exception. Goods sold by the tenant on commission (Wa/rui'maker S Brown v. Carter, 22 Pa. Superior Ct. 625) ; goods stored with the tenant as ware- houseman or other bailee (Brown v. Sims, 17 S. & R. 138) ; goods of a boarder {Oliver v. Wheeler, 26 Pa. Superior Ct. 5 ) . The exception, however, does not extend to goods form- ing the tenant's stock in trade and not sold on commission {Dorsh V. Lea, 18 Pa. Superior Ct. 447) ; nor where the goods are held by the tenant not for hire but as a matter of favor {Page v. MiMleton, 118 Pa. 546). The rule does not protect goods of a stranger which are rented to the tenant even though they are used in the tenant's business. Landlord and Tenant. 329 as for example, motion picture films and generator. {Kor- sofiv. Nixon, 45 Pa. Superior Ct. 343.) 2. Certain kinds of goods rented to a tenant are pro- tected by statute from distraint for rent. These are pianos, melodious and organs (Act of May 13, 1876, P. L. 171) ; sewing and typewriting machines (AjCt of June 25, 1895, P. L. 282) ; electric fans, motors and dynamos (Act of May 3, 1909, P. L. 407) ; soda-water apparatus (Act of May 3, 1909, P. L. 423). It is necessary, to protect such goods, that notice of the owner's title be given to the landlord by marking on the articles or otherwise. {Amer- ican Soda, Fountam Cp. v. Stenger, 50 Pa. Superior Ct. 481.) 3. Goods in the custody of the law are exempt from distress. Thus, goods previously levied on cannot be dis- trained, and this protection extends for a reasonable time after a sheriff's sale to a purchaser. {Stern v. Stanton, 184 Pa. 468.) Several questions arise in connection with the landlord's right to distrain goods after they have been removed from the premises. The Act of 1772, Sec. 5 (1 Sm. L. 370), provides that the right of distress follows goods of the tenant, fraudulently or clandestinely removed from the premises, for a period of thirty days thereafter. However, the right is cut off by sale to a bona fide purchaser ( Section 6 of the same Act) . This right to follow goods is limited by the Act to goods of the lessee. As a condition of such right it is necessary to prove a fraudulent or clandestine removal {McCrossan v. Reilly, 33 Pa. Superior Ct. 628). Because of the difficulty of such proof it is common in leases to provide for such right for a period of thirty days (sometimes ninety days) after removal in all cases regardless of fraud. Such a provision however, cannot apply to a stranger's goods, even though the lease so provides. {Walsh v. Phila. Bourse, 32 Pa. Superior Ct. 348.) 330 Conveyancing in Pennstlvania. 324. PROCEDURE IN DISTRESS. Distress may be by the landlord himself, but is usually by a constable or sheriff as his agent. Some seizure is necessary, but this does not mean manual seizure. It is sufficient if goods are pointed out with notice that they are distrained and must not be removed. It is an old rule of the common law that distress must be made between sun- rise and sunset, but this rule does not apply when the tenant is persistently away during the day and keeps the house locked. {Pifikermg v. Breen, 31 Pa. Superior Ct. 280.) A lawful distress cannot be made if forcible entry is required. Thus, it is a trespass to break or pick the lock of an outer door {Ewald p. Fidelity T. & T. Co., 48 Pa. Superior Ct. 593 ) , or even to unlock the door with a bor- rowed key [Murray v. Vaughn, 2 Dauphin Co. 354) . Inner doors, however, may be broken open. After the distraint, the first step is to give notice to the tenant, stating the amount of rent due and listing the goods seized. This notice should be in writing. The tenant then has five days within which he can pay the rent, or, if he thinks the distress unlawful, replevy the goods. At the end of five days, the next step is an appraisement of the goods by two reputable freeholders, who make a return under oath. Then, after six days' public notice, the goods may be sold to satisfy the rent due. The forms of lease customarily used, contain a waiver by the tenant of all his rights under the Act of 1772, and allow a sale without appraisement at any time within five days after the distress. 325. TENANT'S RIGHT OF EXEMPTION. The tenant, by statute, is allowed an exemption from distress, of property up to the value of three hundred dol- lars, wearing apparel, school books, bibles and sewing Landlord and Tenant. 331 machines. The exemption does not apply to goods of the tenant's wife {Swaney v. Doumont, 44 Pa. Superior Ct. 49). Most leases contain a waiver of this exemption, and without such waiver the right of distress is often valueless since appraisers are very liberal to the tenant. 326. RIGHTS OF TENANT IN CASE OF ILLEGAL DISTRESS. All the requirements of a distress proceeding at every stage (unless waived by the tenant) must be strictly com- plied with, or else the distress is unlawful and the land- lord and the officer actually making the distress are jointly guilty of trespass and can be held liable in damages. {Rams- dell V. Seyhert, 27 Pa. Superior Ct. 133.) If no rent is due, the tenant may recover a penalty of double the value of the goods under the Act of 1772, unless his rights under that Act have been waived. 327. LANDLORD'S PREFERRED CLAIM OVER OTHER CREDITORS. Even though a landlord has not made a distress, his claim for rent is preferred over other creditors who have levied upon goods on the premises (Act of June 16, 1836, P. L. 755, Sec. 83 ) . This right is based upon the right to distrain and it is not necessary that the landlord have a ' judgment. It is limited to goods which were liable to dis- tress at the time of the levy {Grant's Appeal, 44 Pa. 477). The landlord exercises his preference by a notice to the sheriff at any time before the proceeds of the sale are dis- tributed, and the sheriff is bound to pay such claim first if no exception to it is made by the other claimants or by the tenant. The preference is limited to one year's rent. It covers all rent of a current term, year, quarter or month appor- tioned to the day of the levy, even though not then payable by the terms of the lease, but does not cover rent between 332 Conveyancing in Pennsylvanu. the date of the levy and the day of the sale. If there are levies by several creditors, the rent is computed up to the date of the last execution to participate in the fund. (Wadm V. Sharp, 27 Pa. Superior Ct. 233.) A landlord is also entitled to preference of a year's rent under the National Bankruptcy Act and under sales by Eeceivers or Assignees for the benefit of creditors. Wage claims up to certain amounts as provided by Statute are preferred over the landlord's claim for rent. 328. TRANSFER OF LANDLORD'S INTEREST. When the reversion becomes vested in a third party either by operation of law, as in bankruptcy or intestacy, or by conveyance from the lessor, the holder of the reversion is entitled to all rent falling due after the transfer. As we have seen, there is no apportionment of rent based upon a fraction of a rent term. The tenant is liable to the land- lord's grantee, even though there was no assignment of the lease nor any recognition by the tenant of the grantee as landlord {Broker v. Denser, 49 Pa. Superior Ct. 215). If there is a dispute as to the person entitled to receive the rent the tenant should pay the money into Court and inter- plead the claimants. Not only the right to receive rent, but all other covenants that run with the land, pass to a grantee of the premises, even though the lease is not assigned. Covenants, how- ever, which do not directly concern the land, but are merely personal rights collateral to the land, do not pass by a mere transfer of the land. In order that an assignee shall have the benefit of such covenants it is necessary that the lease expressly state that they are for the benefit of the "lessor and his assigns," and that the lease itself be as- signed. As examples of the many covenants that run with the land might be mentioned the following: to pay rent, to make repairs, to use the premises only in a stipulated manner. An important example of a covenant that does Landlord and Tenant. 333 not run with the land is a warrant of attorney to confess judgment. {HocMey v. McGUfin, 40 L. J. 279; See also Fogerty v. Dix, 75 Pa. Superior Ct. 214. ) The lessor continues liable on his covenants, express and implied, after the transfer of the reversion. Whether the burden of such covenants passes to the assignee depends upon the principles stated above as to covenants running with the land. 329. TRANSFER OF TENANT'S INTEREST. Unless the lease provides to the contrary, a tenant may assign the lease, even against the objection of the landlord, and the assignee acquires the rights of the original tenant. The tenant, however, is not thereby relieved of his ob- ligations and continues liable for rent and for the per- formance of his other covenants under the lease. The re- ceipt by the landlord of rent from the assignee does not relieve the original lessee of his liability for rent not paid or covenants not performed by the assignee. {Ghegan v. Young, 23 Pa. 18; Thompsons Estate, 205 Pa. 555.) If, however, the landlord agrees to accept the new tenant in place of the old, the original tenant is released. Such substitution of tenants may be an ora^ understanding (Whelen v. Laird, 56 Pa. Superior Ct. 489). And it has been held that an oral release is valid even though the term is for more than three years. (People's Savings Bank v. Alexander, 140 Pa. 22.) Whether or not the assignee obtains the benefit and is subject to the burden of covenants in the lease depends upon the nature of the covenants and the terms of the lease. As regards covenants which run with the land, the assignee takes the benefit, and is subject to the burden, even though there is no mention in the lease of "assigns." The landlord has an option of holding liable either the original tenant or the assignee, and an acceptance of one installment of rent from the one does not bar the landlord from later holding 334 Conveyancing in Pennsylvania. the other liable for future installments. Among covenants which run with the land and bind the assignee may be men- tioned the following: to pay rent, to repair, to use the premises for a restricted purpose, not to sublet, etc. The assignee also takes the benefit of covenants made by the lessor, such as the -implied covenant of quiet enjoyment, covenants to repair, not to engage in similar business, to renew the lease, etc. The assignee's liability is confined to the period during which he holds the land and he is not liable for prior breaches of covenant by the original lessor nor for subse- quent breaches after he has parted with the lease to a sec- ond assignee. ( Goss v. Woodland Brick Co., 4 Pa. Superior Ct. 167.) The original lessor, after an assignment, is only a surety for the performance of the covenants which run with the land, and if he is forced to pay he has a right to reimburse- ment from the assignee. [Bender v. George, 92 Pa. 36.) An assignee is not bound by a warrant of attorney to confess judgment at least when the lease made no mention of assigns. {Ahern v. Standard Realty Co., 267 Pa. 404; Qirard Trust Co. v. Cosgrove, 270 Pa. 570.) In the above cases the leases made no mention of assigns and it does not seem to *h,ave been ex,pressly decided in Pennsylvania whether a warrant signed by the lessee on behalf of him- self and assigns would bind an assignee. It could be argued that such a warrant would bind an assignee, upon the an- alogy of the cases holding that a grantee of the lessor has the benefit of such a warrant when it runs to the lessor and assigns. ( See preceding section. ) It would seem the bet- ter rule, however, that such an analogy does not hold, since there is a wide distinction between assigning a burden and assigning a benefit. The language of the above cases is broad enough to relieve an assignee from the burden of a warrant of attorney in all types of leases. It is a common provision in leases that the lessee may not assign without the written consent of the lessor. Under Landlord and Tenant. 335 such a lease an assignment without consent is a breach of covenant, and entitles the landlord to forfeit the lease if there is a provision for forfeiture upon breach of any cove- nant. The landlord, however, may waive the right to a forfeiture and continue to hold the original tenant re- sponsible under the lease. The assignee in such case has no rights or obligations as a tenant, unless he and the landlord so agree. (Rosenberger v. Hallowell, 35 Pa. 369. ) 330. SUB-LEASES. A tenant, in the absence of a covenant to the contrary, has the right to sublet the premises or a part thereof. To constitute a sub-lease it is necessary that the tenant carve out of his estate, an estate that is less than his own term. If the whole term is transferred, it is an assignment, even though called a sub-lease. {Lloyd v. Cozens, 2 Ash. 131.) There is no privity of estate (i. e. no relation of land- lord and tenant) between a sub- tenant and the paramount landlord. The sub-tenant's rights and obligations are with his landlord, — ^the original lessee. The sub-tenant is liable to eviction upon breach of covenants by the tenant, but he can protect his interest by paying the rent or other obliga- tions due the paramount landlord, and in turn may charge such payment against the tenant. It is a common provision in leases that a tenant shall not sub-let the premises or any part thereof, without the writ- ten consent of the landlord. If the landlord desires to prevent all sub-letting the clause "or any part thereof" should be inserted, since it has been held that a covenant not to "sublet the premises" does not prevent a subletting of a part of the premises. {Nohle v. Becker, 3 Brewst. 550.) 331. TERMINATION OF THE RELATION IN GEN- ERAL. The relation of landlord and tenant may be terminated in various ways. 1. The term may expire naturally at a 336 CONVETANCING IN PENNSYLVANIA. stated time provided for in the lease. 2. The lease may be terminated during the term by the exercise of the land- lord's right to a forfeiture for breach of covenant. 3. A judicial sale of the premises on a lien antedating the lease may destroy the tenant's interest, i. The tenant may sur- render his estate to the landlord and if accepted by the latter, the tenancy is terminated. 5. The tenancy may expire by virtue of a notice to quit, either under the terms of the lease or under the law governing such notices. 6. It may be destroyed by merger whenever the reversion and the leasehold interest vest in the same person. The ques- tions of law presented by these various methods of ter- minating the tenancy will be considered in the following sections. 332. FORFEITURE. Unless there is an express provision giving the landlord the right to terminate the lease upon breach of a covenant, he has no such right. It is customary, however, for leases to contain a forfeiture clause such as the following: "If the lessee shall violate any covenant or condition herein contained, then this lease shall absolutely determine at the option of the lessor." A clause for forfeiture upon default is not self -operating. The landlord, even though there is no express provision for an "option," may and must make an election, either to terminate the lease or continue the lease. If no notice of an intent to forfeit is given the tenant, he (the tenant) cannot later claim that the lease is terminated as a defense to further performance of its terms. Nor can he be con- sidered as a trespasser until the landlord has made his election to forfeit the lease. It is customary to provide in the lease that an election to forfeit shall be by written notice given to the tenant or left on the premises, but in the absence of such a provision, any clear indication by words or conduct is sufficient. It has been held that election can be made by bringing an action of ejectment, without Landlord and Tenant. 337 any prior notice to the tenant. ( Qv/inn v. McCarty, 81 Pa. 475.) The landlord may waive the right to declare a forfeiture by words or conduct indicating that he considers the ten- ancy still in force. In other words he is bound by words or conduct indicating an election to treat the tenancy as continuing and cannot later change his mind and declare a forfeiture. Eeceipt of rent for a period subsequent to the breach is a waiver, but not a receipt of rent after the breach for a period prior to the breach. A waiver of one breach, however (such as a subletting) is not a waiver of the right to forfeit for future breaches [Fidelity Trust Co. v. Kohn, 27 Pa. Superior Ct. 374 ) . A different rule is applied to a covenant against assignment and it is held that landlord who waives his right to forfeit for one assignment cannot object to a reassignment. {National Publishing Assn. v. Shupe Co., 18 W. N. C. 379.) Under the usual rules governing election it would seem that a landlord should be equally bound by either election, and that an election to forfeit the lease could not be with- drawn so as to keep the lease still in force. It has been held, however, that a landlord could withdraw ejectment proceedings entered after a notice of forfeiture for breach of covenant and thereby revive the lease. {Bronisz v. CienkowsTci, 68 Pa. Superior Ct. 524. ) The result of this case may be supported by the fact that there was evidence of a new agreement for a continued tenancy, but the rea- soning of the court seems open to question. 333. JUDICIAL SALE OF LEASED PREMISES. If the landlord's reversion is sold on a lien created sub- sequent to the lease, the purchaser, of course, takes subject to the lease. He becomes the landlord and the respective rights of the parties are the same as in the case of a volun- tary conveyance by the original lessor. (See Section 328.) {Mutual Building Assn. p. Wilcox, 273 Pa. 385.) 338 Conveyancing in Pennsylvania. If the lien on which the sale is made was created prior to the lease, the situation is entirely different. The ten- ant's rights are subject to all liens existing when he took the lease, and therefore are also subject to the rights of the purchaser at the sale. Such purchaser has an election to recognize the lease and hold the tenant under the terms thereof, or to repudiate the lease and consider the tenant as a trespasser. Acceptance of rent is an affirmation of the lease and the purchaser thereupon becomes the landlord, subject to all the advantages and disadvantages of that relation. He is bound by the terms of the lease, even though he did not have actual knowledge of its provisions. {Curry v. B(wharach Quality Shops, 271 Pa. 364 at 370.) When the lease intervenes between a mortgage and the entry of judgment on the bond accompanying the mort- gage, an execution issued on the judgment cuts out the lease, since the judgment relates back to the time of re- cording the mortgage. {Hostetter's Petition, 57 Pa. Su- perior Ct. 601. ) If the lease is paramount to the lien on which the sale is made, the tenant is credited with all payments of rent made before the sale to the original landlord, even though the payments are made before due, provided, they were bona fide and without knowledge of a pending sale. If the lease was subject to the lien and the purchaser elects to affirm the lease, the purchaser is entitled to rent appor- tioned from the date of delivery of the sheriff's deed, ex- cept that a farm tenant is entitled to credit for not more than a quarter's rent already paid in advance under the terms of the lease, and other tenants are entitled to credit for a month's rent so paid. (Act of April 20, 1905, Sec. 13, P. L. 239.) 334. SURRENDER. A tenancy may be terminated by the tenant surrender- ing his estate to the landlord, provided the latter accepts Landloed and Tenant. 339 the surrender. Surrender may be by agreement of the parties or by operation of law. A surrender by agreement is valid without any consider- ation other than the mutual undertaking of the parties to relieve each other from further obligation under the lease. Np set form of words is required nor is it necessary to deliver up and cancel the lease. An oral surrender of a term for more than three years is valid if there is an actual redelivery of possession to the landlord. {Auer v. Penn, 92 Pa. 444.) Surrender by operation of law occurs when the offer of surrender and the acceptance thereof is not based upon express agreement, but is implied from conduct of the parties. When a tenant vacates or abandons the premises or otherwise indicates that he desires to surrender the lease, he remains liable for the full term unless the land- lord accepts the surrender. What amounts to an accept- ance is often a difficult question of fact, but certain pre- sumptions of law have become established. It is held that no acceptance of a surrender should be inferred from the fact that the landlord takes possession, makes repairs or even relets the premises. All of these acts are consistent with a continuance of the tenancy, since they tend to pro- tect the property or to protect the tenant by diminishing the amount of rent for which he is liable {Auer v. Penn, 99 Pa. 370 ; Hochman v. KueUer, 53 Pa. Superior Ct. 481 ; Smucker v. Orinberg, 27 Pa. Superior Ct. 531). A land- lord who refuses to accept a surrender is not required to make any effort to relet the premises, and he can hold the tenant liable to the full rent. If he does make a new lease, however, he must credit the tenant with all rent received from the new lessee. [Fitzpwtrick v. Rogers, 75 Pa. Super- ior Ct. 273.) If the landlord asks for the keys and receives them this constitutes an acceptance of a surrender {Reaney v: Fan- nessy, 14 W. N. C. 91). And it seems that a mere accept- 340 Conveyancing in Pennsylvania. ance by the landlord himself of the keys from the tenant is an acceptance of a surrender unless the landlord informs the tenant that he intends to hold him liable for the rent. But acceptance by the landlord's agent of the keys is not binding on the landlord as a complete surrender. {Jackson V. Stewart, 31 Pa. Superior Ct. 58. ) 335. NOTICE TO QUIT. A lease for a stated time expires automatically at the end of the term and no notice by either party is necessary to terminate the lease at that time. A lease from year to year can be terminated by the landlord only by giving at least three months' notice of an intention to terminate, prior to the end of the current year. If he fails to give such notice the tenant has the right to continue for an- other year. The notice must be an entire three months prior to the termination date. Thus, when the year begins January 1st, it ends December 31st, and notice must be given not later than September 31st. A notice on October 1st would be insufficient. {Nathan v. Sinclair, 65 Pa. Superior Court 237. ) When the lease is from month to month, for any time less than a year, or for an indeterminate period, the land- lord, desiring to regain possession, must serve a notice to quit thirty days before he is entitled to possession. (Act of March 31, 1905, P. L. 87.) As regards tenancies from month to month this is merely an enactment of the com- mon law (See Hollis v. Burns, 100 Pa. 206). As to ten- ancies at will it is probably a change of the common law, since it is usually stated in the books that a tenancy at will can be terminated at any time by either party without notice. (But see Bedford v. McElJicrron, 2 S. & R. 49.) The obligation to give notice rests only upon the land- lord. The tenant can quit at the end of the current term ( or at any time in a tenancy at will ) , without any prior notice. {Cook v. Neilson, 10 Pa. 41; Thompson v. School District, 48 Pa. Superior Ct. 607.) Landloed and Tenant. 341 Many leases, especially those for a short term, contain an express provision for notice by either party of an inten- tion to terminate the lease at the end of the term, and, in the absence of such notice, the lease to continue from year to year or from month to month, as the case may be. It should be noted that such a lease changes the common law rule of requiring no notice from a tenant and makes the tenant liable for an additional term upon failure to give the required notice. 336. TENANT HOLDING OVER AFTER TERM. A tenant is under obligation to vacate the premises before midnight on the last day of the term. If he con- tinues in possession after such date the landlord has an election of considering him either as a trespasser or hold- ing him liable as a tenant from year to year or from month to month, on the terms of the old lease. The tenant is considered as a tenant at sufferance until the landlord makes his election. As regards the date of expiration it is necessary to dis- tinguish between two types of cases : first, where the lease terminates on a fixed day ; and second, where it terminates only by notice, either under the terms of the lease or by the rule of law applicable to tenants from year to year, etc. In the latter type of case, when the required notice to quit is not given by the landlord, a tenant staying on after the term is not a tenant at sufferance. In other words he is not "holding over" in the sense that the phrase is used in this section. He is entitled to stay of right, for another period of a year or a month, as the case may be. He can not be ejected as a trespasser. On the other hand the ten- ant, having elected to stay another year ( or month ) , is of course bound for the whole of such renewed period, and cannot quit at any time. When the required notice to quit is given by the landlord, the tenant is under obligation to leave at the time designated, and in the event of failure to 342 Conveyancing in Piinnstlvania. do so, the situation is the same as that where a tenant holds over after a fixed term. If the term is for a year or more and the tenant holds over after the date when he is obligated to leave, the land- lord may elect to treat him as a tenant from year to year on the same terms as the old lease. This means that the term is extended for one more year and indefinitely for succes- sive terms of one year as long as the tenant elects to con- tinue and as long as the landlord gives no notice to quit. The rent and other conditions of such new tenancy are the same, so far as applicable, as those of the original lease. In case of an election by the landlord to consider the tenant as a tenant from year to year, the latter acquires all the rights of such a tenant. He cannot be required to vacate except at the end of one of the yearly periods and after three months' notice to quit. Thus if a tenant holding over is treated as a tenant from year to year and the land- lord gives no notice to quit three months before the end of the year, the tenant has a right to continue for another year. There is no definite rule as to what constitutes an elec- tion to treat a tenant holding over as a tenant from year to year. It has been held that the landlord made such an election by allowing the tenant to remain for a year after the termination of the term {James v. B' "^' r William Jones. (Seal) Wm. F. Belstbrling, I Andrew Smith. J (Acknowledgment — See Form 2, page 440.) FoEMs. 473 29. GUARDIAN'S* DEED FOR LANDS SOLD BY ORDER OF ORPHANS' COURT. This Indenture, made the Sixth day of September, A. D. one thousand nine hundred and twenty, between Patrick Coe, Guardian, legally appointed by the Orphans' Court of the County of Philadelphia of the estate of John Beown, a minor son of Harey Brown, late of Phila- delphia, Merchant, deceased, of the one part, and Edward Jones, of Philadelpha, Salesman, of the other part: Whereas by force and virtue of certain good conveyances and assurances in the law, duly had and executed the said Harey Brown became in his lifetime lawfully seized in his demesne, as of fee, of and in a certain lot or piece of land, situate, in, &c., and bounded and described as follows (here describe the premises), with the appurtenances, and being so thereof seised, died intestate, (or, if the de- ceased made a will, add the following after the word seised, "made his last will and testament in writing, bearing date the day of , A. D. , wherein and whereby (among other things) he did give and devise the said plantation and tract of land unto his said son John Brown, and his heirs, as in and by the said in part recited will, since his decease duly proved and remaining in the Register's office at Philadelphia, reference being thereunto had, appears;") and whereas at an Orphans' Court held at Philadelphia aforesaid, in and for the said county, upon the petition of the said John Brown, the * Guardians are of two kinds, testamentary or such as are appointed by the decedent in his will, and such as are appointed by the orphans' court. In drawing a deed from a, guardian first ascertain how the guardian was appointed. If by wUl, recite that part of the will. If by the orphans ' court, recite that fact as in this form. The portion in brackets is a covenant which is not essential to the validity of the deed and is often omitted. Until bond has been entered by the guardian his deed is ineffectual to pass title. Therefore, at settlement, a certificate of the clerk of the orphans' court must be produced, showing that bond has been entered in conformity with the order of the court. It is good practice to record this certificate with the deed though the more usual practice is to have the clerk of the orphans' court certify to the entering of the bond as shown at end of deed, form 30, page 480. See also note to form. Par. 28, page 470. 474 Conveyancing in Pennsylvania. said Patrick Coe was duly appointed Guardian of the estate of the said John Brown during his minority, and it appearing to the said Court that the said John Brown was not possessed of a personal estate adequate to his maintenance and education, ( [or "that the estate of said minor was 'in such a state of dilapidation and decay'] [or 'so unproductive and expensive,'] that it would be to the interest and benefit of said minor that the estate should be sold,") the said Court did then and there make an order empowering the said Patrick Cob to make public sale of the said plantation and tract of land, the estate of the said John Brown, for the purposes aforesaid, and to make a title thereto to the purchaser; in pursuance whereof, the said Patrick Cob having first given bond withi suf- ficient surety to the said Court, according to the Act of Assembly, for the faithful discharge of trust thus com- mitted to him, did, on the day of , A. D. 19 , on the premises aforesaid, in accordance with the said order, expose the premises therein mentioned to sale by public vendue, and sold the same to the said Edward JONBS, at and for the sum of $ he being the highest bidder, which sale, on report thereof made to the Judges of the said Court, on the day of , A. D. 19 , was confirmed by the said Court; and it was considered and adjudged by the said Court that the same should be and remain firm and stable forever, as by the records and pro- ceedings of the said Court, reference thereunto being had, will fully appear. Now this indenture witnesseth, that the said Patrick Cob, for and in consideration of the sum of I , to him in hand paid by the said Edward Jones, at and before the ensealing and delivery hereof, the receipt and payment whereof he doth hereby acknowl- edge, hath granted, bargained, sold, aliened, released, and confirmed, and by these presents (by virtue of the powers and authorities to him given by the aforesaid order of Orphans' Court, and pursuant to the directions thereof) doth grant, bargain, sell, alien, release, and confirm unto the said Edward Jones, his heirs and assigns, all the Forms. 475 aboye-mentioned and described lot or piece of land, with the appurtenances thereto belonging. Together with all and singular the rights, liberties, privileges, hereditaments, and appurtenances whatsoever, thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, claim, and demand whatso- ever of the said Habky Brown in his lifetime, at and immediately before the time of his decease, of, in, to, or out of the same. To have and to hold the said plantation and tract of land, hereditaments, and premises hereby granted or men- tioned, or intended so to be, with the appurtenances, unto the said Edward Jones, his heirs and assigns, to the only proper use, benefit, and behoof of the said Edward Jones, his heirs, and assigns, forever. [And the said Patrick Cob doth covenant, promise, and agree to and with the said Edward Jones, his heirs and assigns, by these presents, that he, the said Patrick Coe, hath not done, committed, or wittingly or willingly suffered to be done or committed, any act, matter, or thing whatsoever whereby the premises aforesaid, or any part thereof, is, are, or shall or may be impeached, charged or encumbered in title, charge, or estate, or otherwise howsoever.] In Witness Whereof, the said party of the first part hath hereunto set his hand and seal the day and year first above-written. Signed, sealed and de- j li-i7PT>prI in tTift nrpsence liyered in the presence \ Patrick Coe. ( Seal. ) . 0^ "«' r (SeaL) Wm. F. Belsterling, Andrew Smith. (Acknowledgment— See Form 2, page 440.) 476 Conveyancing in Pennsylvania. 30. DEED OF HEIRS AND GUARDIAN OF MINOR HEIR RECITING ABSTRACTS OF WILL AND ORPHANS' COURT PROCEEDINGS UNDER PRICE ACT. This Indenture, Made the first day of August in the year of our Lord One Thousand Nine Hundred and Five (1905) BETVPBEN G. F. B., single man, and W. C. B., single woman, H. G. B. and L. F., his wife, 0. F. B. and M. L., his wife, and H. G. B., guardian of the estate of W. A. B., a minor, all of the city of Philadelphia (hereinafter called the grantors), and S. D. P., of the city of Philadelphia, gentleman (hereinafter called grantee). Whereas, J. D. and wife, by indenture bearing date the 7th day of July, A. D. 1887, and recorded at Phila- delphia in Deed Book G. G. P. No. 276, page 442, &c., granted and conveyed the hereinafter described premises unto M. E. B., wife of G. B., in fee. And Whereas, The said M. E. B., being so thereof seised, afterwards departed this life on the 19th day of January, A. D. 1896, having first made and published her last will and testament in writing bearing date the 12th day of June A. D. 1888, since her decease duly proved and registered in the office of the register of wills in and for the city and county of Philadelphia, and recorded in Will Book No. 182, page 576, &c. Wherein and Whereby, She did will (inter alia) as follows: "I give, devise and bequeath unto my children and unto the children of my said husband by a former marriage and their respective heirs forever, all my prop- erty, real, personal and mixed, of what nature, kind, soever and wheresoever the same shall be at the time of my death share and share alike." Whereas, The said children of said M. E. B. and those of G. B., her husband by a former marriage, were W. P. B., H. G. B. and C. F. B., her own children, and G. H. B., W. C. B., E. E. B. and G. C. B., children of her husband by a former wife. Forms. 477 And Whereas, The said W. F. B., one of the children above mentioned, departed this life on the 18th day of June, A. D. 1897, a widower, intestate, leaving surviving him one child, the minor W. A. B., in whom an undivided one-seventh part or share in said premises is now vested in fee. And Wheebas, At an orphans' court held at Phila- delphia on the 18th day of July, A. D. 1903, of July Term, 1903, No. 53, the said H. P. B. was appointed guardian of the estate of W. A. B., a minor. And Wheeeas, At an orphans' court aforesaid held as aforesaid as of July Term, 1903, No. 53, upon petition duly presented to the court on the 29th day of April, A. D. 1905, it was ordered and decreed that H. P. B., guardian as aforesaid, join with the other parties in interest in the sale and conveyance of the premises hereinafter described and granted unto the said J. T. T. for the sum of $4,000 for the whole thereof free and clear of all encumbrances as therein mentioned. Security to be entered in double the amount of the share of the minor, which security has since been duly entered. And Wheeeas, the said C. C. B. departed this life on or about the 4th day of March, A. D. 1903, unmarried and without issue, having first made and published her last will and testament in writing bearing date the 7th day of April, A. D. 1902, duly proven and registered in the of&ce of the register of wills in and for the city and county of Philadelphia in Will Book No. 246, page 60, &c. Wheeein and Wheeeby, After directing the payment of her just debts and funeral expenses she did will as follows : "All the rest, residue, and remainder of my estate, real, personal and mixed, whatsoever and wheresoever of which I may be seised, possessed or entitled to, I give, devise and bequeath unto my beloved sister W. C. B., her heirs and assigns absolutely forever." And Wheeeas, The said E. E. B. departed this life on or about the 2nd day of December, A. D. 1903, having first made and published her last will and testament in 478 Conveyancing in Pennstlvanu. writing, bearing date the 25th day of March, A. D. 1903. duly proven Nov. 15, 1904, recorded at Philadelphia in Will Book No. 262, page 115, &c. Wherein and Whereby, She did will as follows: "Fourth," "All the rest, residue and remainder of my estate, real or personal whatsoever and wheresoever the same may be situate, of which I may be seised or possessed of, I give, devise and bequeath to my beloved sister, W. C. B., absolutely." Nov?^ THIS Indenture Witnesseth, That the said grantors for and in the consideration of the sum of four thousand (|4,000.00) dollars lawful money of the United States unto them well and truly paid by the said S. D. P. at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, have granted, bargained and sold, released and confirmed, and by these presents do grant, bargain and sell, release and confirm unto the said S. D. P., his heirs (here describe the premises). Together with all and singular the buildings, improve- ments, ways, streets, alleys, passages, water, water courses, rights, liberties, privileges, hereditaments and appurte- nances whatsoever, unto the hereby granted premises be- longing, or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of them the said grantors as well in law and equity, of, in and to the same and every part thereof, to have and to hold said lot or piece of ground with said messuage or building thereon erected, hereditaments and premises hereby granted, or mentioned and intended so to be, unto the said S. D. P., his heirs and assigns, to and for the only proper use and behoof of the said S. D. P., his heirs, and assigns forever. And the said grantors, G. F. B., W. C. B., H. G. B., C. F. B., for themselves, their heirs, executors and adminis- trators do covenant and agree to and with the said grantee, his heirs and assigns and by these presents that they, the said grantors, their heirs, all and singular the heredita- Forms. 479 ments and premises hereby granted or mentioned and in- tended so to be, with the appurtenances unto the said grantee, his heirs and assigns against them, the said grantors, their heirs, and against all and every person whomsoever lawfully claiming or to claim the same or any part thereof, by, from, or under them, or any of them, shall and will warrant and forever defend. In Witness Whereof, The parties of the first part have hereunto set their respective hands and seals, dated the day and year as above written. Signed, Sealed and De- livered in the presence of Wm. F. Belsterling, Henry B. Lang. G. F. B. (Seal.) W. C. B. (Seal.) H. G. B. (Seal.) L. F. B. (Seal.) C. F. B. (Seal.) M. L. B. (Seal.) H. G. B., Guardwn (Seal.) Philadelphia County^ ss: On the first day of August, A. D. 1905, before me the sub- scriber, a notary public for the Commonwealth of Pennsyl- vania, residing in Philadelphia, personally appeared the above named G. F. B., W. C. B., H. G. B., L. F. B., C. F. B. and M. L. B. and in due form of law acknowledged the above indenture to be their and each of their acts and deed and desired the same might be recorded as such. Witness my hand and notarial seal the day and year afojesaid. Wm. F. Belsterling^ Notari/ Public. Commission Expires, &c. (Seal.) Philadelphia County, ss: On the first day of August, A. D. 1905, before me, the subscriber, a notary public for the Commonwealth of Penn- 480 Conveyancing in Pennsylvania. sylvania, residing in Philadelphia, personally appeared the above-named H. G. B., guardian of the estate of W. A. B., a minor, who in due form of law acknowledged the fore- going indenture to be his act and deed, as such guardian, to the end that it might be recorded as such : Witness my hand and seal the day and year aforesaid. Wm. F. Belstbeling^ Notary Public. Commission Expires, &c. ( Seal. ) City and County of Philadelphia, ss: At an Orphans' Court for the city and county afore- said, held at Philadelphia on the 18th day of July, A. D. 1903, as of July Term, 1903, No. 53, H. G. B. was appointed guardian of the estate of W. A. B., a minor. And at an orphans' court for the city and county aforesaid, held at Philadelphia on the 29th day of April, 1905, the said H. G. B., guardian of the estate of W. A. B., the above-named minor, was ordered and decreed to join with the other parties in interest in the sale and conveyance, execution and delivery of all and every deed or deeds or other as- surances in law necessary to vest the said minor's undi- vided one-seventh interest, part or share in said real estate, in the said S. D. P. in fee, and the said court ordered and decreed that said guardian was authorized to receive and receipt for the purchase money, security to be entered in double the amount of the share of said minor, to wit, eight hundred sixty dollars, which security has been entered and approved. Witness my hand and seal of said court this second day of August, A. D. 1905. A. J. Fortin^ 1st Asst. Clerk O. 0. (Seal.) Forms. 481 31. DEED OF HEIRS AND CORPORATION GUARD- IAN CONTAINING RECITALS OF TITLE GAINED BY WILL, DESCENT, ADVERSE POS- SESSION, EXTINGUISHMENT OF GROUND RENT, ORPHANS' COURT PROCEEDINGS UN- DER PRICE ACT, ETC. This Indenture^ Made the sixteenth day of December, in the year of our Lord one thousand eight hundred and eighty -four (1884), between Luther G. Smith^ of the city of Philadelphia, and Clara V. Smith^ his wife, Emma E. Stearly, of the said city, single woman, John Newton^ of the said city, and Ida L, his wife, and Mary S. Kainer, of the said city, single woman, all of the first part; "The Fidelity Insurance Trust and Safe Deposit Company," Guardian^ of the estate of Mary Leath Courtney, a minor, of the second part ; and Peter S. Dildine, of the city of Philadelphia, gentleman, of the other part. Whereas, Jacob Stearly was, in his lifetime, lawfully seised in his demesne, as of fee, of and in the several lots or pieces of ground and premises hereinafter particularly described, with the appurtenances, and being so thereof seised as aforesaid, departed this life on the twenty-second day of July, Anno Domini one thousand eight hundred and eighty-three (1883) having first made and published his last will and testament in writing bearing date the four- teenth day of March, Anno Domini, 1882, duly proven the thirteenth day of July, Anno Domini 1883, and remaining on record in the office of the register of wills in and for the City and County of Philadelphia, wherein and where- RY^ after directing the payment of his just debts and fu- neral expenses he, the said Jacob Stearly, did will as fol- lows, viz : "Item I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever the same may be situ- ate and of which I may die seised, possessed or entitled to in manner following, to wit: One full, equal fifth part thereof unto my grandchild, Clara D. Smith^ her heirs, 31 482 Conveyancing in Pennsylvania. executors, administrators and assigns forever absolutely. One full, equal fifth part thereof unto my grandchild Emma E. Stearly, her heirs, executors, administrators and assigns forever absolutely. One full, equal fifth part thereof unto my grandchild Ida I. Newton, her heirs, ex- ecutors, administrators, assigns forever absolutely. One full, equal fifth part thereof unto my grandchild Mary Rainer, her heirs, executors, administrators and assigns forever absolutely. And the remaining one-fifth -part thereof unto my great grandchild, Mary Leath Courtney, her heirs, executors, administrators, and assigns forever absolutely." And Whereas, All of the devisees named in said recited will are of full age except' the said Mary Leath Courtney. And Whereas, At an orphans' court for the City and County of Philadelphia, held at Philadelphia, on the twenty-ninth day of December, Anno Domini 1883, upon the petition of the said Mary Leath Courtney, who was then above the age of fourteen years, the said "The Fidelity Insurance Trust and Safe Deposit Company," was ap- pointed guardian of her estate. And Whereas, At an orphans' court for the city and county aforesaid, held at Philadelphia on the twenty-ninth day of November, Anno Domini 1884, the petition of the said "The Fidelity Insur- ance Trust and Safe Deposit Company," guardian as afore- said, was presented setting forth "That the said Mary Leath Courtney is seised in her demesne as of fee of and in an equal undivided fifth part or share of and in the real estate hereinafter particularly described. That all the other parties interested in said real estate, being sui juris, are anxious and desirous of disposing of the same." That Peter S. Dildine, of the City of Philadelphia, has offered to ■purchase the said real estate for the price or sum of six- teen thousand dollars clear of all encumbrances, and all the other owners of said real estate have agreed to sell at said price, and are anxious and desirous, that the proper and necessary deeds and assurances for said real estate Forms. 483 should be executed to the said Peter S. Dildine, and a per- fect title for the same made to him, but are prevented from so doing on account of the inability of the petitioners to join with them in the execution and delivery of said deeds as guardian aforesaid, without the consent and order of the said court. That the said price offered for said real estate is much greater than the assessed value of same, and that the said amount is to the best of the petitioner's knowledge and belief as large a price as can now be obtained for said property. That it is to the advantage of said minor's estate that the said real estate should be sold, inasmuch as the same is in great need of repair and in a dilapidated con- dition. The petitioners therefore prayed the court to ap- prove of the price offered for said real estate and authorize them to sell the said minors undivided fifth interest therein for one-fifth of the said price, offered as aforesaid, viz: f 3,200 ; and that they be authorized, ordered and directed as guardian of said Mary Leath Courtney, to join with the other owners of the above mentioned real estate in the ex- ecution and delivery of the proper and necessary deed or deeds and other assurances needful and necessary for vest- ing and conveying said real estate to the said Peter S. Dil- dine, in fee simple. Whereupon the said court upon due consideration of the said petition, ordered and decreed that the said "The Fidelity Insurance Trust and Safe Deposit Co.," Guardian of said Mary Leath Courtney, be authorized to sell the said minor's one full, equal and undivided fifth part or share of and in the real estate hereinafter particu- larly described for the price or sum of three thousand two hundred dollars to Peter S. Dildine, his heirs and assigns, and that the said "The Fidelity Insurance Trust and Safe Deposit Co.," guardian as aforesaid, be authorized and di- rected to make, execute and deliver, or join with the other owners of said real estate in the execution and delivery of, all and every deed or deeds or other assurances in the law necessary to vest said minor's undivided fifth part or share in said real estate in the said Peter S. Dildine, in fee simple, 484 Conveyancing in Pennstlvania. and that said minor's undivided interest in said real estate so sold be and remain to the said Peter S. Dildine, his heirs and assigns, firm and stable forever, and the said guardian was thereby authorized to receive and receipt for said pur- chase money. And the said court further ordered that security be entered by said guardian in the sum of six thousand four hundred dollars, and approved of the bond of the said "The Fidelity Insurance Trust and Safe Deposit Company," as such security. Which security has since been duly entered. Now THIS Indenture Witnesseth^ That the said parties of the first and second parts hereto for and in consideration of the sum of sixteen thousand dollars lawful money of the United States of America, unto them well and truly paid by the said Peter S. Dildine at or before the sealing and delivery hereof, the receipt whereof is hereby acknowl- edged, have granted, bargained and sold, released and con- firmed, and by these presents, the said "The Fidelity In- surance Trust and Safe Deposit Co.," guardian as aforesaid (the party of the second part hereto), acting herein by vir- tue of the powers and authorities to them given by the above recited order of the orphans' court, and in pursuance of the directions thereof, do grant, bargain, and sell, release and confirm unto the said Peter S. Dildine, his heirs. All that certain lot or piece of ground ( Description of Tract One). Also all that certain (Description of Tract Two). Also all that certain (Description of Tract Three). Also all that certain (Description of Tract Four). Also all that certain (Description of Tract Five). The premises first described being composed of two certain lots or pieces of ground which Ulrich Ruskstuhl and Margaret, his wife, by indenture bearing date the fourth day of April, Anno Domini 1814, and recorded at Philadelphia in Deed Book I. H., No. 9, page 1, &c., granted and conveyed unto the said Jacob Stearly in fee. Under and subject to the payment of a certain yearly rent charge Forms. 485 of fifteen Spanish milled silver dollars to John Redman, his heirs and assigns in equal half yearly portions or pay- ments on the first day of the months of May and November in each and every year, forever free of all deductions or abatements for taxes or assessments. But free and clear discharged and indemnified of and from all other rents, rent charges, liens and encumbrances whatsoever, which yearly rent charge of fifteen Spanish milled silver dollars John B. Newman and others, executors of the last will and testament of James Lyle, Anno Domini 1830, and recorded at Philadelphia, in Deed Book G. W. R., No. 36, page 371, &c., released and extinguished unto the said Jacob Stearly, his heirs and assigns. The premises second described being the greater part of a certain lot or piece of ground which Peter Richmond by indenture, bearing date the eleventh day of May, Anno Do- mini 1842, and recorded at Philadelphia in Deed Book G. S., No. 38, page 670 &c., granted and conveyed unto the said Jacob Stearly, in fee. Under and subject to the payment of a certain yearly ground rent or sum of sixteen Spanish milled silver dollars payable to John Redman, his heirs and assigns in half yearly payments on the first day of the months of May and November in every year forever with- out any deduction for taxes, &c., which yearly ground rent or sum of sixteen Spanish milled silver dollars John Kes- sler, Junior, trustee, by indenture, bearing date the twenty^ third day of November, Anno Domini 1868 and recorded at Philadelphia in Deed Book J. T. 0., No. 198, Page 15, &c., released and extinguished unto the said Jacob Stearly, his heirs and assigns. The premises third described being composed as fol- lows, viz : A portion thereof being a part of the said lot or piece of ground which Peter Richmond granted and con- veyed to the said Jacob Stearly, in fee as above recited. Another part thereof John Shaw by indenture bearing date the Twenty-second day of March, Anno Domini 1831, and recorded at Philadelphia in Deed Book A. M., No. 9, Page 486 Conveyancing in Pennstlvanu. 500, &c., granted and conveyed unto the said Jacob Stearly, in fee, under and subject to the payment of a certain yearly ground rent or sum of Forty-five dollars lawful sil- ver money of the United States of America, unto Jacob F. Hoeckley his heirs and assigns, on the first of the months of January and July in every year forever without deduc- tion for taxes, &c., v^^hich yearly ground rent the said Ja- cob F. Hoeckley and Anna Elizabeth, his wife, by Deed Poll bearing the date the sixth day of April, Anno Domini 1831, and recorded at Philadelphia in Deed Book A. M., No. 10, Page 288, &c., released and extinguished unto the said Jacob Stearly, his heirs and assigns. And William Martin by Deed Poll bearing date the Eight day of April, Anno Domini 1831, and recorded at Philadelphia in Deed Book A. M., No. 10, page 289, &c., did remise release and forever quit claim unto the said Jacob Stearly, his heirs and assigns all his (the said William Martin's), estate, right, title and interest in and to a certain gore or strip t>f ground mentioned and described in the above recited Indenture from John Shaw to said Jacob Stearly, and the said Jacob Stearly and Mary M., his wife, by indenture bearing date the Eighth day of April, Anno Domini 1831, and recorded at Philadelphia in Deed Bpok A. M., No. 10, page 295, &c., granted and confirmed unto Isaac Griffith, his heirs and assigns, a certain yearly rent charge or sum of Eighteen Spanish Milled Silver dollars, each dollar weighing seventeen pennyweight and six grains at least to be yielding and payable and to be had taken and received in half yearly payments on the first day of the months of October and April in every year thereafter forever without any deduction for Taxes, &c., out of the premises therein particularly described, being the premises conveyed by the said John Shaw to the said Jacob Stearly in fee as above recited. Which yearly rent charge Lukens Griflftth and Sarah, his wife (by their Attorney, Anthony P. Morris), by Indenture bearing date the fifth day of February, Anno Domini 1851, and recorded at Philadelphia in Deed Book Forms. 487 G. W. 0., No. 82, page 202, &c., released and extinguished unto the said Jacob Stearly, his heirs and assigns. An- other PART OF SAID PREMISES THIRD DESCRIBED Johu Kessler by Indenture bearing date the third day of April, Anno Domini 1833, and recorded at' Philadelphia in Deed Book Am. M., No. 33, page 577, &c., granted and conveyed unto the said Jacob Stearly in fee. Another part thereof being the greater part of a certain lot or piece of ground which Jonathan CoUom and Mary, his wife, by Indenture bearing date the eighth day of April, Anno Domini 1831, and recorded at Philadelphia in Deed Book A. M., No. 10, page 291, &c., granted and conveyed unto the said Jacob Stearly, in fee. And the remaining part thereof being a part of a larger lot or piece of ground which Kobert Ral- ston and others, Trustees of the last Will and Testament of Jonathan Bayard Smith, deceased, by Indenture bearing date the Eleventh day of May, Anno Domini 1826, and re- corded at Philadelphia in Deed Book G. W. R., No. 9, page 356, &c., granted and conveyed unto the said Jacob Stearly in fee. The premises fourth described being composes as fol- lows : viz ; a part thereof being a lot Twenty-feet in front on said Hermitage about one hundred and twenty feet — Jonathan Bayard Smith and Hannah, his wife, by Inden- ture bearing date the first day of January Anno Domini 1795, and recorded at Philadelphia in Deed Book E. T., No. 16, page 368, &c., granted and conveyed unto Richard Limehouse in fee. Reserving thereout unto the said Jona- than Bayard Smith, his heirs and assigns, a certain yearly ground rent or sum of Twenty Spanish milled silver dol- lars. And the said Richard Limehouse and Elizabeth, his wife, by Indenture bearing date the sixth day of January, Anno Domini 1806, and recorded at Philadelphia in Deed Book G. W. R., No. 9, page 355, &c., granted and conveyed said lot unto John Harrison, in fee. Subject to the pay- ment of said yearly ground rent or sum of Twenty dollars. And the said John Harrison by Deed Poll bearing date the 488 Conveyancing in Pennsylvania. twenty-eighth day of March, Anno Domini 1826, and re- corded at Philadelphia in Deed Book G. W. R., No. 9, page 356, &c., granted and conveyed said lot unto the said Jacob Stearly in fee. Subject to the payment of said yearly ground rent or sum of Twenty dollars. And Eobert Eal- ston and others Trustees of the last Will and Testament of the said Jonathan Bayard Smith, deceased, by the said recited Indenture bearing date the Eleventh day of May, Anno Domini 1826, and recorded at Philadelphia in Deed Book G. W. E., No. 9, page 356, &c., granted and conveyed unto the said Jacob Stearly, in fee, a lot of ground con- taining in front on said Hermitage street fifty-five feet six inches and extending in Depth Westward about one hun- dred and twenty feet (which lot included the said lot con- veyed to Richard Limehouse as above recited). Whereby the said yearly ground rent or sum of Twenty dollars merged and became extinguished forever. Another por- tion of said premises fourth described being a part of said lot of Ground conveyed by Eobert Ralston and others Trustees to said Jacob Stearly in fee, as above recited. And the remaining portion of said premises being the Southermost Two feet ten inches more or less of said prem- ises although not covered by the dimensions of the lot con- veyed by said recited Deed from Eobert Ralston and others Trustees to Jacob Stearly in fee, was included within the boundary of said Lot of ground contained in said Deed and the said Jacob Stearly entered into possession by virtue thereof and held actual, adverse, continued, visible, notor- ious, distinct, and hostile possession thereof until the time of his decease, being a period of more than Fifty years. So that a perfect and indefeasible title to said remaining part of said premises fourth described was vested in said Jacob Stearly in fee simple, at the time of his decease by virtue of the Statute of Limitations of the Commonwealth of Pennsylvania. And the premises fifth described being composed of the whole of a certain lot or piece of ground which Andrew J. Forms. 489 Grauel and Amanda M., his wife, and Lafayette Grauel and Phebe, his wife, by Indenture bearing date the nine- teenth day of April, Anno Domini 1870 and recorded at Philadelphia in Deed Book J. A. H., No. 25, page 543, &c., granted and conveyed unto the said Jacob Stearly in fee and part of a certain lot or piece of ground which Jon- athan Collom and Mary, his wife, by Indenture bearing date the eighth day of April, Anno Domini 1831, and re- corded at Philadelphia in Deed Book A. M., No. 10, page 291, &c., granted and conveyed unt'o the said Jacob Stearly in fee. Together with all and singular the buildings, improve- ments, ways, streets, alleys, passages, water, water courses, rights, liberties, privileges, hereditaments and appurte- nances whatsoever unto the hereby granted premises belong- ing or in any wise appertaining. And the reversions and remainders, rents, issues and profits, thereof and all the estate, right, title, interest property, claim and demand whatsoever of them the said parties of the first part and second part hereto and of the said Mary Leath Courtney as well at law as in equity of, in and to the same and every part thereof. To have and to hold the said Lots or pieces of ground above described with the said messuages or tenements and other buildings and improvements thereon erected heredita- ments and premises hereby granted or mentioned and in- tended so to be with the appurtenances the said Peter S. Dildine, his heirs and assigns. To and for the only proper use and behoof of the said Peter S. Dildine, his heirs and assigns forever. And Luther Gr. Smith and John Newton for themselves respectively, and for their respective wives and their heirs, executors and administrators and the said Emma E. Stearly and Mary S. Kainier, for themselves re- spectively and their respective heirs, executors and admin- istrators DO by these presents covenant, grant and agree to and with the said Peter S. Dildine, his heirs and assigns, that they the said Luther G. Smith and Clara V., his wife, 490 CONYEYANCING IN PENNSYLVANIA. Emma E. Stearly, John Newton and Ida I., his wife and Mary S. Rainier, and their respective heirs, all and sing- ular the hereditaments and premises hereinabove described and granted or mentioned and intended so to be with the appurtenances, unto the said Peter S. Dildine, his heirs and assigns, against them the said Luther G. Smith and Clara V., his wife, Emma E. Stearly, John Newton and Ida I., his wife, and Mary S. Eainier, and their respective heirs and against all and any other person or persons whomso- ever lawfully claiming or to claim the same or any part thereof by, from, or under them or any of them shall and will warrant and forever defend And the said "The Fidelity Insurance Trust and Safe Deposit Co.," guardian as afore- said. Doth covenant, promise and agree to and with the said Peter S. Dildine, his heirs and assigns by these pre- sents that It the said The Fidelity Insurance Trust and Safe Deposit Co., Guardian as aforesaid hath not at any time heretofore made, done, suffered or committed any act, matter or thing in deed or in law whereby or by means whereof the premises hereby granted or any part thereof are, is, or can be impeached, charged or affected in title, estate or otherwise howsoever. In Witness Whereof the said parties of the first part have hereunto interchangeably set their hands and seals, and the said "The Fidelity Insurance Trust and Safe De- posit Co.," guardian as aforesaid hath hereunto afllxed its common or corporate seal Dated the day and year first above written. Sealed and Delivered IN THE presence OF us Edvstin F. Glenn^ John A. Sinbr. Luther G. Smith (Seal.) Clara V. Smith (Seal.) Emma E. Stearly (Seal.) John Newton (Seal.) Ida T. Nbvpton (Seal.) Mary S. Rainier (Seal.) FOEMS. 491 As to the Fidelity, &c., Co. Guardians & C, E. L. Wright, Jr. H. H. PiGOTT. Stephen A. Caldwell, Pres. ^Attest. E. Patterson, /Sec. (Corporate Seal.) Eeceived the day of the date of the above Indenture of the above named Peter S. Dildine the sum of Sixteen thousand dollars being the full consideration money above men- tioned. Witnesses at Signing Edwin F. Glenn, John A. Siner. As to the Fidelity and Trust Co.| E. T. Wright, Jr., H. H. PiGOTT. Luther G. Smith Clara V. Smith John Newton Ida T. Newton Emma E. Stearly Mary S. Eainier ■ E. Patterson, Treas. On the sixteenth day of December, Anno Domini 1884, before me the subscriber a Nortary Public for the Com- monwealth of Pennsylvania residing in the City of Phila- delphia personally appeared Luther G. Smith and Clara v., his wife, Emma E. Stearly, John Newton and Ida I., his wife, and Mary S. Eainier, and in due form of law acknowledged the above written Indenture to be their and each of their act' and deed and desired the same might be recorded as such and the said Clara V. Smith and Ida I. Newton being of full age and separate and apart from their said husbands by me thereon privately examined and the full contents of the above deed being by me made known unto them did thereupon declare and say that they did voluntarily and of their own free will and accord, sign, seal, and as their act and deed deliver the above written Indenture, Deed or conveyance, without any Coersion or compulsion of their said husbands. 492 CONTETANCING IN PeNNSTLVANU. Witness my hand and Notarial seal, the day and year aforesaid. Edwin F. Glenn, (Seal.) Notary Public. On the eighteenth day of December, Anno Domini 1884, before me the subscriber a Notary Public for the Common- wealth of Pennsylvania residing in the City of Philadel- phia personally appeared Eobert Patterson, Secretary of the above named The Fidelity Insurance Trust and Safe Deposit Co., who being duly affirmed according to law did depose and say that he was present and saw Stephen A. Caldwell as President of the said Corporation affix the seal of the said corporation to the above Indenture and that the seal set and affixed to the said Indenture is the common or corporate seal of the said "The Fidelity Insur- ance Trust and Safe Deposit Co.," and that the said Inden- ture was duly sealed and delivered by the said President as and for the act and deed of the said corporation, for the purposes therein mentioned, and that the name of this deponent and of the said Stephen A. Caldwell, President aforesaid, subscribed to the said Indenture in attestation of the due execution and delivery thereof by the said "The Fidelity Insurance Trust and Safe Deposit Co.," are of their own proper and respective handwritings. Affirmed and subscribed before me this eighteenth day of December, Anno Domini 1884, K. T. Weight^ Je., R. Patteeson^ Sec. (Seal.) Notary Public. City and County of Philadelphia^ ss: At an Oephans' Court for the City and County afore- said held at Philadelphia on the twenty-ninth day of No- vember, A. D. 1884, the said The Fidelity Insurance Trust and Safe Deposit Co., Guardian of the estate of Mary Leath Courtney, the above minor, was authorized to sell the said minor's one full equal and undivided fifth part or Forms. 493 share of and in the Eeal Estate in the Above Indenture described to Peter S. Dildine, his heirs and assigns, and the said Guardian was authorized and directed to make, execute and deliver or join with the other owners of said Eeal Estate in the execution and delivery of all and every deed or deeds or other assurances in the law necessary to vest said minor's undivided fifth part or share in said Eeal Estate in the said Peter S. Dildine in fee simple and the said Court ordered and decreed that the said minor's un- divided interest in said Eeal Estate so sold be and remain t'o the said Peter S. Dildine, his heirs and assigns, firm and stable forever, and the said guardian was authorized to receive and receipt for the purchase money, security to be entered in the sum of Six thousand four hundred dol- lars and the bond of said company was approved as such security which security has been duly entered. Witness my hand and the seal of the said Court this 19th day of December, Anno Domini 1884. A. J. FORTIN, (Seal.) 1st. Asst. Clerk. Eecorded in the ofi&ce for Eecording of Deeds in and for City and County of Philadelphia in Deed Book J. O. D , No. 238, Page 528, &c. Witness my hand and seal of office this Twentieth day of December, A. D. 1884. John O'Donnel, (Seal.) Recorder of Deeds. 32. SHERIFF'S DEED. Know all Men by these Presents that I, Joseph Gilfil- lan, Sheriff of the County of Philadelphia in the State of Pennsylvania, for and in consideration of the sum of Fif- teen Hundred (f 1500. 00) dollars, to me in hand paid, do hereby grant and convey to Anna S. Lanning, widow, of the City of Philadelphia. (Here describe the premises.) Being the same premises which Richard Dintel and Maggie, Ms wife, hy Indenture hearing date the Nvnth day of Jan- 494 Conveyancing in Pennsylvania. uary 1907 wnd recorded in the office for the Recording of Deeds in and for the City and County of Philadelphia in Deed Book W. 8. V., No. 767, Page 111, &c., granted a/nd conveyed unto the said Martin Sellman in fee. Together vyith the free use and privilege of the aforesaid two several four feet wide alleys at all times hereafter forever, And the same having been sold by me to the said grantee, on the first day of August Anno Domini one thousand nine hundred and ten after due advertisement, according to law, under and by virtue of a writ of Levari Facias issued on the sixth day of July Anno Domini One Thousand nine hun- dred and ten, 1910, out of the Court of Common Pleas, No. 1, as of M/nrch Term, one thousand nine hundred and ten, (1910) Number 3809, at the suit of Anna S. Lanning, As- signee of Edv^ard H. Stanton,, Mortgagee, against Martin Sellman, Mortgagor and Real Owner. In witness whereof, I have hereunto affixed my sig- nature, this tenth day of August Anno Domini one thou- sand nine hundred and ten, (1910). Joseph Gilfillan. Commonwealth of Pennsylvania, ss: Before the undersigned, Prothonotary of the Common Pleas Court of Phila. personally appeared Joseph Gil- fillan^ Sheriff of Philadelphia County aforesaid, and in due form of law declared that the facts set forth in the foregoing deed are true, and that he acknowledged the same in order that said deed might be recorded. Witness my hand and seal of said court, this tenth day of August Anno Domini one thousand nine hundred and ten, (1910). Craig Biddlb, Prothonotary. per Jas. W. Fletcher, Dep. Prothy. FoBMs. 495 33. DEED, INDIVIDUAL, TO TRUSTEES OF AN UN- INCORPORATED CHURCH. This Indenture, Made the ninth day of September in the year of our Lord one thousand nine hundred and twenty (1920) Between M. G., of the city of Philadelphia,, State of Pennsylvania, and S., his wife (hereinafter called the grantors), of the one part and J. D., V. L. and 8. K., all of the said dty and state, Trustees for St. Michael's Orthodox Church, (hereinafter called the grantees) , of the other part, Witnesseth, That the said grantors for and in consider- ation of the sum of One (fl.OO) Dollar, and other good and valuable consideration lawful money of the United States of America, unto them well and truly paid by the said grantees at or before the sealing and delivery hereof, the receipt' whereof is hereby acknowledged, have granted, bargained and sold, released and confirmed, and by these presents do grant, bargain and sell, release and confirm unto the said grantees their heirs and assigns, All that certain (Here describe the premises and insert the recital). Together with all and singular the buildings, improve- ments, ways, streets, alleys, passages, wafers, water- courses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever unto the hereby granted prem- ises belonging, or in any wise appertaining, and the re- visions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of them the said grantors as well at law as in equity, of, in, and to the same. To have and to hold the said lot or piece of ground above described with the buildings and improvements thereon erected, here- ditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the said grantees, their heirs and assigns, to and for the only proper use and behoof of the said grantees, their heirs and assigns forever. In trust nevertheless for the uses and purposes of St. Michael^s Orthodox Chxjech with power to the said J, D., V. L. and 8. K. trustees, to sell and convey in 496 CONTETANCrNG IN PENNSYLVANIA. fee-simple and to mortgage the whole or any part of the aforesaid premises and appurtenances to any person or persons and for such sum or sums of money as the said congregation of St. Michael's Orthodox Church, hy a ma- jority vote at a meeting held for the purpose of considering that question, may appoint and direct. And the said M. G. and 8., his wife, grantors, for themselves, their heirs, executors and administrators, do covenant, promise and agree, to and with the said grantees, their heirs and as- signs, by these presents, that they, the said grantors, their heirs all and singular the hereditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said grantees, their heirs and assigns, against them, the said grantors, their heirs and against all and every person and persons whomsoever law- fully claiming or to claim the same or any part thereof, by, from or under him, her, them, or any of them, shall and will WARRANT and forever defend. In Witness Whereof, The parties of the first part have hereunto set their hands and seals, dated the day and year first above written. Sealed and Delivered in the presence of us: Robt. Roe, \ S. a. (Seal) John Doe. J M. G. (Seal) Received on the day of the date of the above indenture, of the above-named grantees the full consideration above mentioned. 8. G. (Acknowledgment. ) 34. VOLUNTARY DEED OF PARTITION BY TEN- ANTS IN COMMON. This Indenture, Made the twenty-fourth day of Novem- ber, A.D. one thousand nine hundred and nine, between William Brown, of Philadelphia, of the one part, and Forms. 497 Thomas Brown, of Philadelphia, of the other part: Whereas, the said William Brown and Thomas Brown now stand seized in fee-simple, as tenants in common, of and in a certain tract or parcel of land, situate, lying, and being in, &c., containing, &c. (here describe the whole tract ) . Now this indenture witnesseth, that the parties to this indenture have agreed to make, and by these presents do make, a full, just, equal, perfect, and absolute partition and division between them, of and in the aforesaid tract of land, according to their respective shares and interests therein, in manner following, that is to say that the said William Brown and his heirs shall have all that piece or allotment of land, part of the said tract, beginning (here describe the land), containing, &c., together with the mes- suages, edifices, buildings, and improvements on the said described piece of land erected, standing, or being, and all the rights, liberties, privileges, hereditaments, and appur- tenances whatsoever, thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof. To have and to hold the same unto the said William Brown, his heirs and assigns, for- ever, in severalty, as his and their full part, share, and divi- dend, of and in all and singular the premises : And the said Thomas Brown doth by these presents, for himself and his heirs, give, grant, allot, assign, set over, release, and con- firm, unto the said William Brown, and t'o his heirs and assigns, forever, the said described price or allotment of land, with the appurtenances : To have and to hold to him, the said William Brown, his heirs and assigns, to the only proper use and behoof of him, the said William Brown, his heirs and assigns, forever, in severalty: And the said Thomas Brown, for himself, his heirs, executors and ad- ministrators, doth covenant to and with the said William Brown, his heirs and assigns, and every of them, by these presents, that he, the said William Brown, his heirs and assigns, shall, or lawfully may, from time to time, and at all times hereafter, forever, freely, peaceably, and quietly have, 32 498 Conveyancing in Pennsylvania.. hold, occupy, possess, and enjoy the said first described piece or allotment of land, containing, &c., with the ap- purtenances, and receive and take the rent's, issues, and profits thereof, without the let, suit, trouble, molestation, interruption, or denial of him, the said Thomas Beovtn, his heirs and assigns, or any other person or persons what- soever, lawfully claiming, or to claim, by, from, or under him, them, or any of them, or by or with his, their, or any of their acts, means, consent, privity, or procurement. And that the said Thomas Bkown and his heirs shall have that piece or allotment of land (residue of the said tract), be- ginning (here describe the land), containing, &c., together with the messuages, edifices, buildings, and improvements on the said described piece of land erected, standing, or being, and all the rights, liberties, privileges, hereditaments, and appurtenances whatsoever thereunto belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof: to hold and enjoy the same unto the said Thomas Bkovpn^ his heirs and assigns, forever, in severalty, as his and their full part, share, and dividend of, and in all and singular the premises : And the said William Brown doth, by these presents, for himself and his heirs, give, grant, allot, assign, set over, release, and confirm, unto the said Thomas Brovpn, and to his heirs and assigns, forever, the said last described piece or allot- ment of land, with the appurtenances : To have and to hold to him, the said Thomas Brown^ his heirs and assigns, to the only proper use and behoof of the said Thomas Brown, his heirs and assigns, in severalty, forever: And the said William Brown^ for himself, his heirs, executors, and ad- ministrators, doth covenant to and with the said Thomas Brown^ his heirs and assigns, and every of them, by these presents, that he, the said Thomas Brown^ his heirs and assigns, shall or lawfully may, from time to time, and at all times hereafter, forever, freely, peaceably, and quietly, have, hold, occupy, possess, and enjoy the said last-described piece or allotment of land, containing, &c., with the appurte- Forms. 499 nances, and receive and take the rents, issues, and profits thereof, without the let, suit, trouble, molestation, interrup- tion, or denial of him, the said William Brown^ his heirs or assigns, or of any other person or persons whatsoever, lawfully claiming, or to claim, by, from, or under him, them, or any of them, or by or with his, their, or any of their acts, means, consent, privity, or procurement. In Witness Whereof, The said parties have hereunto set their hands and seals the day and year aforesaid. Thomas Brovs^n (Seal) William Brown. (Seal) Signed, sealed amd jde- livered in the presence of Egbert Rob, John Doe. ( Acknowledgment. ) 35. MASTER'S DEED IN PARTITION IN EQUITY. Whereas, On the 21st day of January, A.D. 1922, in the Court of Common Pleas No. 1, of Philadelphia County, in the Commonwealth of Pennsylvania, sitting in equity of December Term, 1921, number 921, a bill of com- plaint was filed by Maria Bloom, plaintiff, against Otto Bloom and Anna Bloom, defendants, setting forth (inter alia) that the parties therein named as plaintiff and de- fendants, together and undivided did hold a certain tract of land situate in said county, and bounded and described as follows (here set out the description). And praying that partition thereof be made among said parties. Where- upon the cause was so proceeded in that partition was de- creed and the cause referred to Andrew Lang, Esq., as master, to make partition of the land, &c., and the master having made report that the land could not be divided without prejudice, &c., and having valued, and appraised the same, and the parties having refused to accept the land at the valuation, the court did, on the 27th day of May, A.D. 1922, order that the master make sale thereof at pub- 500 Conveyancing in Pennsylvania. lie auction. Pursuant to which order the master did, on the fifteenth day of June, A.D. 1922, sell the land to Alfred Cameron for the sum of ten thousand (|10,000) dollars; which sale on the return day thereto made, was on the first day of July, A.D. 1922, approved and confirmed by the court and adjudged to remain firm and stable forever. Now this Indenture Witnesseth, That Andrew Lang, Esq., master by virtue of the power vested in him by the order aforesaid, and in the consideration of the sum of ten thousand (|10,000) dollars, to him in hand paid, the re- ceipt whereof is hereby acknowledged, hath granted, bar- gained and sold, and by these presents doth grant, bar- gain and sell unto the said Alfred Cameron, his heirs and assigns, the tract of land hereinbefore described, together with all and singular the rights, privileges, hereditaments and appurtenances thereunto, belonging or in any wise appertaining: To have and to hold the same for such es- tate as the parties named in said bill of complaint as plaintiff and defendants had therein at the time of the filing of said bill. In Witness Whereof, The said master hath hereunto set his hand and seal, this tenth day of July, A.D. 1922. Andrew Lang. (Seal) Master. '' ] ss: City and County op Philadelphia, State op Pennsylvania^ On this tenth day of July, A.D. 1922, before me, the subscriber, a notary public in and for the Commonwealth of Pennsylvania, residing in said county, personally ap- peared Andrew Lang, Esq., named as master in the fore- going indenture, and acknowledged the said indenture to be his act and deed, as master, in pursuance of the decree set forth in said indenture for the sale of the land therein described. Forms. 501 Witness my hand and seal this tenth day of July, A.D. 1922. William Blinn^ Notary Public. (Seal) Commission Expires March 1, 1923. 36. ADMINISTRATOR'S DEED FOR LANDS SOLD BY ORDER OF ORPHANS' COURT IN PAR- TITION. This Indenture^ Made the twenty-first day of August, in the year of our Lord one thousand nine hundred and twenty, between John Green and Earl White^ adminis- trators of all and singular the goods and chattels, rights and credits which were of John Jones^ late of Philadel- phia, farmer, deceased, of the one part, and John Black^ of Philadelphia, gentleman, of the other part : Whereas^ The said John Jones was, in his lifetime, lawfully seized in his demesne, as of fee, of and in a certain lot or tract of land, situated in Philadelphia, and bounded and described as follows, that is to say, beginning at (here describe the land), containing , with the appurtenances, and being so thereof seized as aforesaid, died intestate; and whereas at an orphans' court, held at Philadelphia, in and for the County of Philadelphia aforesaid, the day of , A.D. 19 , upon the petition of Harry Jones, eldest son and heir-at-law (or as the case may be) of the said John Jones, praying the court to award an inquest to make partition of the said real estate of the said in- testate, in the said petition mentioned, to and among his children and representatives, in such manner and in such proportions as by the laws of Pennsylvania is directed and appointed, if such partition could be made without prejudice to or spoiling the whole, otherwise to value and appraise the same, the said inquest was awarded by the court, according to the prayer of the said petitioner; whereupon a writ of partition or valuation issued out of the said court, bearing date the day of , A.D. 502 Conveyancing in Pennstlvanu. 19 , to the sheriff of the said county directed, command- ing him to summon an inquest to make partition of the said real estate to and among the children and representa- tives of the said intestate according to law, if such par- tition could be thereof made without prejudice to and spoiling the whole ; but if such partition could not be made thereof as aforesaid, then to value and appraise the same ; and that the partition or valuation so made he should distinctly and openly have before the judges of the said court, at Philadelphia, the day of , A.D. 19 . At which day, before the judges alforesaid, the sheriff of the said county, to wit, Charles Kaymond^ Esq., made return of the said writ, with a schedule thereunto annexed, by which schedule or inquisition, under the hand and seal as well of the said sheriff as of the inquest therein named, it appears, by the oaths and affirmation of the said inquest, that the real estate in the said writ mentioned could not be parted and divided to and among the parties therein named without prejudice to or spoiling the whole thereof ; and therefore the inquisition aforesaid, upon their oaths or affirmations aforesaid, had valued and appraised the same at the sum of dollars, which return and valuation were, on motion, confirmed by the court. And whereas all the heirs and legal representatives of the said John Jones having severally and respectively refused to take the said lot or tract of land at the valuation aforesaid, the court did, upon the application of the said Harry Jones (or other party, as the case may be), grant a rule upon all the heirs and legal representatives of the said intestate to show cause, at an Orphans' Court to be held at Philadelphia, in the County of Philadelphia, the day of , next ensuing, why the said real estate should not be sold according to the act of general assembly in such case made and provided; at which said time and place, legal notice of the aforesaid rule being proved to have been duly given to all the heirs and legal representa- tives of the said intestate, and no cause being shown why Forms. 503 the said real estate should not be sold as aforesaid, the court did then and there make an order commanding the said John Green and Earl White,, administrators as aforesaid, to expose the aforesaid lot or tract of land of the said intestate to public sale, on the premises (or as the case may be), upon the terms in the said order directed In pursuance whereof, the said administrators, having first given sufficient security, according to law, for the faithful execution of the power committed to them did, in accord- ance with the directions of the said order, expose the prem- ises therein mentioned to sale by public vendue, and sold the same to the said John Black^ at and for the sum of dollars, he being the highest bidder, and that the highest and best price bidden for the same, which sale, on return thereof made to the judges of the same court, was, on the day of , last past, confirmed ; and it was considered and adjudged by the said court that the said lot or tract of land, with the appurtenances so sold as aforesaid, should be transferred and vested in the said John Black^ as fully as the said John Jones held the same at his decease, subject and liable to the payment of the purchase money, according to the terms prescribed in the said order, as by the records and proceedings of the same court, remaining at aforesaid, relation there- unto being had, will more fully and at large appear. Now this indenture witnesseth, that the said John Green and Earl White^ administrators, as aforesaid, for and in con- sideration of the said sum of dollars, to them in hand paid by the said John Black^ at and before the en- sealing and delivery hereof, the receipt and payment whereol they do hereby acknowledge, have granted, bar- gained, sold, aliened, released, and confirmed, and by these presents (by virtue of the powers and authorities to them given by the aforesaid order of orphans' court, and pursu- ant to the directions thereof) do grant, bargain, sell, alien, release, and confirm unto the said John Black^ his heirs and assigns, all that the above-mentioned and described 504 Conveyancing in Pennsylvania. lot or tract of land, with the appurtenances. Together with all and singular the rights, liberties, privileges, here- ditament's, and appurtenances whatsoever, thereunto be- longing or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, claim, and demand whatsoever of the said John Jonesi in his life- time, at and immediately before the time of his decease, of, in, to, or out of the same. To have and to hold the said lot or tract of land, here- ditaments, and premises, hereby granted, or mentioned, or intended so to be, with the appurtenances, unto the said John Black, his heirs and assigns, to the only proper use, benefit, and behoof of the said John Black, his heirs and assigns, forever.* (And the said John Green and Bael White do severally, but not jointly, or the one for the other, or for the act or deed of the other, but each for his own act only, covenant, promise and agree, to and with the said John Black, his heirs and assigns, by these presents, that they, the said John Green and Earl White have not, nor hath either of them done, committed, or wittingly, or willingly suffered to be done or committed any act, matter, or thing whatsoever, whereby the premises aforesaid, or any part thereof, is, are, or shall or may be impeached, charged, or incumbered in title, charge, or estate, or other- wise howsoever.) In Testimony Whereof, The said parties have here- unto set their hands and seals the day and year first above written. Signed, sealed and de- livered in the presence of y William Sloan, Jacob Rooney. John Green. (Seal) Earl White. (Seal) *Add administrator's acknowledgment as in Form 2, page 440. Covenant in brackets is not necessary and may be omitted. Forms. 505 37. SHERIFF'S DEED IN PARTITION BY A COM- MON PLEAS COURT. I, A. T., high sheriff in and for the City and County of Philadelphia, in the State of Pennsylvania, to all to whom these presents shall come, send greetings: Whereas, a certain writ of breve de partltione facienda, lately issued out of the Common Pleas Court No. 3, for the City and County of Philadelphia, tested at Philadelphia the first day of December, Anno Domini, 1902, and to me directed at the suit of W. W. S., in order to have inter alia the three- story brick messuage or tenement and lot or piece of ground hereinafter particularly described, and granted, parted, and divided between him, the said W. W. S., and G. S. and M. S., minor children by their guardian, J. J. M., to wit, Number TwO' (No. 2), all that certain (here insert the description of the premises). And whereas, I re- turned to the Judges of the Common Pleas Court No. 3, for the City and County of Philadelphia, that in obedience to the said writ I had gone with twelve honest and lawful men of my bailiwick to the tenements and premises in the said writ described with the appurtenances, the parties to said writ having been warned and as many as chose to be there being present, which twelve honest and lawful men, upon their oaths and affirmations, respectively did say that the said lands and tenements could not be divided without prejudice to or spoiling the whole, and therefore they had valued and appraised the said lands and tene- ments in the said writ described, as follows, to wit : Num- ber One ( No. 1 ) , at five thousand five hundred dollars, and Number Two (No. 2) at two thousand dollars, subject to the said ground rent ( or as the case may be ) mentioned in the above-recited writ, lawful money of Pennsylvania: And whereas, the said parties declined and refused to take the lands and tenements in the said writ described with the appurtenances, at the appraised value, as appears of record in the said court: Whereupon the return to the said writ of partitione facienda was approved of by the 506 CONVEYANCINQ IN PENNSYLVANIA. Judges aforesaid, demandant aforesaid prayed that the premises be sold agreeably to the act of assembly in such case made and provided, and it was accordingly ordered by the said Judges that the lands and tenements in the said writ described, with the appurtenances, be sold at public vendue, agreeably to the act of assembly, after notice and advertisements twenty days previous thereto. Wherefore, by a certain order of sale issued out of the said court, to me directed, bearing teste the first day of Febru- ary, Anno Domini 1903, I was commanded that the lands and tenements in the said writ described, with the appur- tenances, I should expose to sale at public vendue, having first given due, fair, and legal notice of the time and place of sale thereof, agreeably to the directions of the said act of assembly, and the order of court thereon, and the money arising from the said sale or suflflcient sureties therefor, to the satisfaction of all parties concerned, I should bring into the said Court to be held at Philadelphia the Monday of March then next, to be distributed and paid by order of said Court to and among the several parties entitled to receive the same in lieu of their respective parts and pur- parts of the premises in the said writ described, with the appurtenances, according to their just rights and propor- tion, and to abide such further order as should be made by the said Court in the premises, and that I should have then and there the said writ: And whereas, I, the said sheriff, in obedience to the last recited writ or order of sale, after having given due, fair, and legal notice, accord- ing to the directions thereof, of the time and place of sale twenty days previous thereto, by advertisements in the public newspapers and by hand bills set up in the most public places in my bailiwick, did, on Monday, the third day of February, in the year of our Lord 1902, at half -past five o'clock in the evening, at Room 676 City Hall, in the City of Philadelphia, expose (inter alia) the said three- story brick messuage or tenement and lot or piece of ground herein above particularly described, with the ap- FoBMS. 507 purtenances, to sale by public vendue or outcry, when and where I sold the same to D. T. M., of the said City of Philadelphia, in the state aforesaid, for the price or sum of one thousand and twenty-five dollars, he being the high- est and best bidder, and that the highest and best price bidden for the same. Now, know ye, that I, the said A. T., high sheriff as aforesaid, for and in consideration of the said sum of one thousand and twenty-five dollars, lawful money of the United States of America, to me in hand well and truly paid by the said D. T. M., at or before the sealing and delivery hereof, the receipt whereof I do hereby ac- knowledge, have granted, bargained, and sold, and by these presents according to the directions of the said last recited writ or order of sale, and by force and virtue there- of, and of the constitution and laws of this commonwealth, in such case made and provided, do grant, bargain, and sell unto the said D. T. M., his heirs and assigns, all that the aforesaid certain three-story brick messuage or tene- ment and lot or piece of ground (here describe premises), together with the free use and privilege of the said alley as a passage way and watercourse, at all times hereafter forever, and together with all and singular the buildings, improvements, ways, streets, alleys, passages, waters, watercourses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever, thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof : And also, all the estate, right, title, interest, property, claim, and demand whatso- ever of them, the said W. W. S., G. S. and M. S., minor children as aforesaid, by their guardian, J. J. M., either at law, in equity, or otherwise howsoever, of, in, and to, or out of, the same and every part and parcel thereof, to have and to hold all and singular the hereditaments and prem- ises above particularly described and hereby granted or mentioned or intended so to be, with the appurtenances, unto the said D. T. M., his heirs and assigns, to and for the only proper use and benefit and behoof of the said D. T. M., 508 Conveyancing in Pennsylvania. his heirs and assigns forever, according to the form, force, and effect of the laws and usages of this commonwealth, in such case made and provided. In Witness Whereof^ I, the said sheriff, have hereunto set my hand and seal, this twenty-eighth day of March, in the year of our Lord one thousand nine hundred and three (1903). A. T. (Seal) Sheriff. Add sheriff's acknowledgment as in Form 32, page 493. Partition by common pleas courts under the common law is now rarely used. The most usual mode of partition is by equity or in the orphans' court. 38. QUIT CLAIM DEED (USUAL FORM). This Indenture, Made the nmth day of April, in the year of our Lord one thousand nine hundred twenttf (1920), Between Thomas Jones and Elsie, Ms wife, both of Phila- delphia, State of Pennsylvania (hereinafter called the parties of the first part), and William Flick, of the City of Philadelphia, State of Pennsylvania {hereinafter called the party of the second part) . Witnesseth, That the said parties of the first part, for and in consideration of the sum of one thousand ($1,000) dollars, lawful money of the United States of America, to them well and truly paid by the said party of the seconrt part, at and before the sealing and delivery of these pres- ents, the receipt whereof is hereby acknowledged, have remised, released and quit-claimed, and by these presents do remise, release and quit-claim unto the said party of the second part, and to his heirs and assigns forever. All THAT CERTAIN lot or piece of ground with the three-story brick messuage or dwelling thereon erected, situate on the east side of "F" Street, at a distance of one hundred three (103') feet northward from the north side of "O" Street, in the Fiftieth Ward of the City of Philadelphia, contain- ing in front or breadth on said "F' Street eighteen (18') feet and extending of that width in length or depth east- Forms. 509 ward, between parallel lines at right angles to the said "O" Street, one hundred (100') feet to a three feet wide alley, leading southward into said "G" Street, being the same premises which John Eobinson et ux., by Deed dated June 15, 1904, and recorded at Philadelphia in Deed Book E. L. T. No. 48, page 516, &c., granted and conveyed unto the said William Flick in fee. This conveyance being in- tended to buttress and confirm the title so conveyed to the said William Flick, his heirs and assigns, as to any right, title and interest that the said Thomas Jones and Elsie, his wife, may have had or may now have in and to said premises. Together with all and singular, the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversions, remainders, rents, issues and profits thereof : And also, all the estate, right, title, interest, property, claim and demand whatso- ever, as well in law as in equity, of the said parties of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above-mentioned and described premises, together with the appurtenances unto the said part?/ of the second part, his heirs and as- signs forever. In Witness Whereof, The said parties of the first part have hereunto set their hands and seals the day and year first above written. Sealed and delivered in" the presence of us, Robert Roe, Oscar Thomas. Thomas Jones. (Seal) Elsie Jones. (Seal) Received, the day of the date of above Indenture, of the above-named William Fick, the sum of one thousand (|1,000.00) being the full consideration above mentioned. Thomas Jones. Elsie Jones. (Acknowledgment. ) 510 CoNVETANcmQ IN Pbnnstlvanu. 39. SHORT FORM OF QUIT-CLAIM DEED UNDER ACT OF APRIL 1, 1909. This Dbed^ Made the Ninth day of April in the year nineteen hundred and twenty (1920), between Thomas Jones and Elsie^ his Wife, both of the City of Philadel- phia, State of Pennsylvania, (hereinafter called the parties of the first part) and WiiiUAM Flick^ of the City of Phila- delphia, State of Pennsylvania ((hereinafter called the party of the second part) : Witnesseth^ That in consider- ation of One Thousand (|1,000.00) Dollars, in hand paid, the receipt whereof is hereby acknowledged, the said par- ties of the first part do hereby release and quit-claim to the said party of the second part, All That Certain lot or piece of ground with the three- story brick Messuage or Dwelling thereon erected, situate on the East side of "F" Street at a distance of One Hun- dred Three (103') feet Northward from the North side of "C" Street containing in front or breadth on said "F" Stt-eet Eighteen (18') feet and extending of that width in length or depth Eastward in parallel lines at right angles to the said "G" Street One Hundred (100') feet to a three- feet-wide alley, leading Southward into said "G" Street. In Witness Whereof^ Said parties of the first part have hereunto set their hands and seals, the day and year first above written. Sealed and delivered Elsie Jones. (Seal) Thomas Jones. (Seal) in the presence of Wm. Bunn, Oscar Flinn. (Acknowledgment — See Form 23, page 464.) 40. DEED OF CONFIRMATION.* Knovt all Men by these Presents,, That I, John Smith of Philadelphia, in Philadelphia Courity and State of Pennsylvania, in consideration of the sum of *Add usual form of acknowledgment of individual, as in Form 1, page 440. This deed has the same function as a quit-claim deed, — namely, to confirm the title already held by the grantee and to convey to him any outstanding interest of claim against his title which may exist by reason of defect in the original conveyance to him, or by defective recording, mistake, etc. Forms. 511 Dollars, to me in hand paid by William Jones, the re- ceipt whereof is hereby acknowledged, have granted, bar- gained, sold, ratified, and confirmed and by these present's do grant, bargain, sell, ratify, and confirm, unto the said William Jones, his heirs and assigns, forever, all the estate which I have in the messuage, with the appurte- nances, in the county aforesaid, now in the possession and occupation of the said William Jones. To have and to hold the same unto him, the said William Jones, and his heirs and assigns, forever. In Witness Whereof, I have hereunto set my hand antl seal this 1st day of June, A.D. 1922. Signed, Sealed and De-^ livered in the presence of I William Dick, f Alexander Thompson, J John Smith (Seal) 41. DEED or RIGHT OF WAY OR OTHER EASE- MENT. This Indenture, Made the 1st day of July, in the year of our Lord One thousand nine hundred and twenty, be- tween Adam Brown, of Philadelphia, of the one part, and Charles Doe, of Philadelphia aforesaid, of the other part ; WITNESSETH, that the said Adam Brown, for and in con- sideration of the sum of One Dollar, lawful money of the United States, unto him well and truly paid by the said Charles Dob, at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged, hath granted, bargained, and sold, and by these presents doth grant, bargain, and sell, unto the said Charles Doe, and to his heirs and assigns, the free and uninterrupted use, liberty, and privilege of, and passage in and along, a cer- tain alley or passage, of feet in breadth by feet in depth, extending out of and from Greene Street, in the said city, along the east side of the present messuage, dwelling-house, and lot of the said Charles Doe. Together 512 CoirVEYANCINQ IN PENNSYLVANIA. with free ingress, egress, and regress to and for the said Charles Doe^ his heirs and assigns, his and their tenants and under-tenant's, occupiers, or possessors of the said Charles Doe^s messuage and gi'ound contiguous to the said alley or passage, at all times and seasons for ever hereafter, into, along, upon, and out of the said alley, in common with him, the said Adam Brown, his heirs and assigns, tenants or occupiers of the said Adam Brovfn-'s messuage and ground, adjacent to the said alley. To have and to hold all and singular the privileges aforesaid to him, the said Charles Doe^ his heirs and assigns, to the only proper use and behoof of him, the said Charles Doe, his heirs and assigns, forever, in common with him, the said Adam Brown^ his heirs and assigns, as aforesaid; subject', nevertheless, to the moiety or equal half part of all necessary charges and expenses which shall from time to time accrue in paving, amending, repairing, and cleans- ing the said alley. In Witness Whereof^ We have hereunto set our hands and seals the day and year first above written. Signed, Sealed and De- Adam Brown (Seal) (Seal) livered in the pres ence of ^ Andrew Smith, Allen Dick. If the grantor is married, his wife should also join in the deed. Add acknowledgment as in case of regular deed. Form 1, page 440. 42. DEED OF EXCHANGE OF LANDS.* This Indenture^ Made the Twenty-first day of January, A.D. One thousand nine hundred and twenty (1920) be- tween John Black^ of Philadelphia, of the one part, and *This is a form of deed of exchange in which the grant is made by the respective parties in the same instruments. The deed should of course be executed in duplicate. Usually, in such transactions, separate deeds are used ; in other words, James Smith would make a deed granting his property to John Black and John Black a separate deed granting his property to James Smith. In such case the ordinary deed form for individual (see Form 21, page 460) may be used. FoBMs. 513 James Smith, of Philadelphia, of the other part; Wit- nesseth, that the said John Black hath given and granted and by these presents doth give and grant, unto the said Jambs Smith; — All That Certain lot or piece of ground with the buildings and improvements thereon erected, be- ing premises No. 3122 "X" Street in the City of Phila- delphia, and being more particularly described as follows, to wit, Situate (here describe premises in full) for and in exchange of All That Certain lot or piece of ground with the buildings and improvements thereon erected belonging to the said James Smith being known as premises No. 325 "M" Street in the City of Philadelphia and more par- ticularly described as follows, to wit. Situate (here de- scribe premises in full). To have and to hold said prem- ises No. 3122 "X" Street with the appurtenances to the said James Smith, his heirs and assigns forever, for and in exchange of premises No. 325 "M" Street with the ap- purtenances. And the said John Black doth covenant, &c., (here add such covenants as may be agreed upon). And the said Jambs Smith hath likewise on his part given and granted, and by these presents doth fully, freely, and absolutely give and grant, unto the said John Black, his heirs and assigns, premises No. 325 "M" Street as de- scribed aforesaid with the appurtenances. To have and to hold said premises 325 "M" Street and hereditaments, &c., to the said John Black, his heirs and assigns forever and in exchange of and for premises No. 3125 "X" Street afore- said. Provided always, nevertheless, and these presents are upon this condition, and it is the true intent and mean- ing of the parties to these presents, their executors, ad- ministrators, or assigns, shall at any times hereafter during the said respective terms above granted, by color or means of any former or other gift, grant, or sale, or other- wise howsoever, be ousted or evicted of and from the pos- session of either of the said messuages or tenements, and other the premises, so respectively granted in exchange as aforesaid, or any part thereof, then and in such cases these 33 514 Conveyancing m Pennstlvania. present's, and every matter and thing herein contained, shall be utterly void and of none effect, and then and thenceforth it shall and may be lawful to and for the party or parties so ousted or evicted into his or their said former messuage or tenement and premises, with all and singular the appurtenances, to re-enter, and the same to have again, repossess, and enjoy, as of his and their former estate or estates, anything herein contained to the contrary thereto in any wise notwithstanding. In Witness Whereof, The said parties have hereunto set their hands and seals, the day and year aforesaid. Signed, Sealed, and | Delivered in the pres- joh^ Black. (Seal) ence of ^ Robert Roe, John Doe. J ( Acknowledgment. ) James Smith. (Seal) 43. DEED OF DEDICATION. This Indenture, Made the first day of August in the year of our Lord one thousand nine hundred and twenty- two (1922) ; Between Suburban Improvement Company of the first part (grantor ), and The City of Philadel- phia of the second part (grantee). WITNESSETH, That the said grantor , for and in con- sideration as well of the advantage to it accruing as for divers other considerations affecting the public welfare which it seeks to advance has granted, bargained, sold, aliened, enfeoffed, released and confirmed and by these presents does grant, bargain, sell, alien, enfeoff, release and confirm unto the said The City of Philadelphia, its successors and assigns. All that certain lot or piece of ground situate in the Fortieth Ward of the City of Phila- delphia, Beginning at a point in the northerly side of X Street at a distance of four hundred atid eighty feet east- ward from the east side of Y Street, thence at right angles to said X Street north ten degrees west five hundred and Forms. 515 twenty feet to the south side of Z Street, thence along the south side of Z Street north eighty degrees east eighty feet to a point, thence south ten degrees east five hundred and twenty feet to the north side of X Street, thence along said X Street south eighty degrees west eighty feet to the place of beginning, being a continuation of W Street as laid out by the Bureau of Surveys upon the city plan. To Have and to Hold^ the said lot or piece of ground above described unto the said The City of Philadelphia^ its successors and assigns to and for the only proper use and behoof of the said The City of Philadelphia^ its suc- cessors and assigns forever as and for a public street or highway and for no other use or purpose whatsoever and to the same extent and with the same effect as if the said street had been opened by a Decree of the Court of Quarter Sessions of the Peace for the County of Philadelphia after proceedings duly had for that purpose under and in pur- suance of the Eoad Laws of the Commonwealth of Penn- sylvania. And the said grantor for itself and its successors does by these presents covenant, promise and agree to and with the said The City of Philadelphia^ its successors and assigns that neither the said grantor nor its successors shall nor will at any time hereafter ask, demand, recover or receive of or from the said The City op Philadelphia, its successors or assigns any sum or sums of money as and for damages for or by reason of the physical grading of the said street to the grade as now established by the Board of Surveyors of the said The City of Philadelphia, and if such grade shall not be established at the day of the date of these presents that neither the said grantor nor its successors shall nor will at any time thereafter ask, demand, recover or receive any such damages by reason of the physical grading of the said street to conform to the grade as first thereafter established or confirmed by the said the Board of Surveyors of the said The City op Philadelphia. 516 Conveyancing in Pennsylvania. And the said grantor for itself amd its successors does by these presents further covenant, promise and agree to and with The City of Philadelphia, its successors and assigns that the said lot of ground above described unto the said The City of Philadelphia, its successors and assigns against it the said grantor and its successors and against all and every person or persons whomsoever law- fully claiming or to claim the same, or any part thereof, by, from or under it or , them, or any of them shall and will warrant and forever defend. In Witness Whereof, The said grantor, has hereunto caused its corporate seal to be affixed, attested by its secre- tary and these presents to be signed by its president. Dated the day and year first above written. Sealed and Delivered in the presence of us: Suburban Improvement Company, President. (Seal) Attest^: Secretary. 44. GROUND RENT DEED. This Indenture, Made the first day of February in the year of our Lord one thousand nine hundred and twenty- two; Between Arthur Brown of the City and County of Philadelphia, Pennsylvania of the one part and Charles Dunn of the same city and county, of the other part, WITNESSETH, That the said Arthur Brown as well for and in consideration of the sum of one dollar and other good and valuable consideration lawful money, unto h'un at or before the sealing and delivery hereof by the said Charles Dtmn well and truly paid, the receipt whereof is hereby acknowledged, as of the payment of the yearly rent and taxes, and performance of the covenants and Forms. 517 agreements hereinafter mentioned, which on the part of the said Charles Dunn, Ms heirs and assigns, is and are to be paid and performed, has granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by these presents does grant, bargain, sell, alien, enfeoff, release and confirm unto the said Charles Dunn, his heirs and assigns, {here describe the premises). Together with all and singular the buildings, ways, streets, alleys, passages, waters, water-courses, rights, lib- erties, privileges, hereditaments and appurtenances what- soever, unto the said hereby granted premises belonging, or in anywise appertaining, and the reversions and re- mainders thereof : To Have and to Hold the said described lot or piece of ground, hereditaments and premises hereby granted, with the appurtenances, unto the said Charles Dunn, his heirs and assigns, to the only proper use and behoof of the said Charles Dunn, his heirs and assigns forever; Yielding and Paying therefor and thereout, unto the said Arthur Brown, his heirs and assigns the yearly rent or sum of sixty ($60.00) dollars, lawful money of the United States of America, in half yearly payments on the first day of February and first day of August in every year hereafter, forever, without any deduction, defalcation or abatement for any taxes, charges or assessments whatso- ever to be assessed, as well on the said hereby granted lot as on the said yearly rent hereby and thereout reserved; the first payment thereof to be made on the first day of August, one thousand nine hundred and twenty-two; And on default of paying the said yearly rent on the day and time and in manner aforesaid, it shall and may be law- ful for the said Arthur Brown, his heirs and assigns to enter into and upon the said hereby granted premises, or any part thereof, and into the buildings thereon erected or to be erected, and to distrain for the said yearly rent so in arrear and unpaid, without any exemption whatsoever, any law to the contrary thereof in anywise notwithstand- 518 Conveyancing in Pennstlvanu. ing, and to proceed with and sell such distrained goods and effects according to the usual course of distresses for rent charges. But if sufficient distress cannot be found upon the said hereby granted premises to satisfy the said yearly rent in arrear, and the charges of levying the same, then and in such case it shall and may be lawful for the said Arthur Brown, his heirs and assigns, into and upon the said hereby granted lot and all improvements wholly to re-enter, and the same to have again, repossess and enjoy, as in his or their first and former estate and title in the same, as though this Indenture had never been made. And if at any time suit shall be properly brought by the said grantor, his heirs and assigns, to recover any arrearages of the yearly rent that may be due and unpaid, then and in such case an attorney's fee of fifty ($50.00) dollars, law- ful money aforesaid, shall be added to such arrearages, and be recovered and collected in said suit, as part of the costs thereof. And the said Charles Dunn for himself and for his heirs, executors, administrators and assigns, does cove- nant, promise and agree to and with the said Arthur Brown, his heirs and assigns, by these presents, that he, the said Charles Dumv, his heirs and assigns, shall and will well and tinily pay, or cause to be paid, to the said Arthur Brown, his heirs and assigns, the aforesaid yearly rent or sum of siaety ($60.00) dollars, lawful money afore- said, on the day and time hereinbefore mentioned and appointed for payment thereof, without any deduction, de- falcation or abatement for any taxes, charges or assess- ments whatsoever; it being the express agreement of the said parties that the said Charles Dunn, his heirs and assigns, shall pay all taxes whatsoever that shall here- after be laid, levied or assessed, by virtue of any laws whatever, as well on the said hereby granted lot and buildings thereon erected or to be erected, as on the said yearly rent now charged thereon. ALSO;, That he the said Charles Dunn, his heirs or as- signs, shall and will within one year from the date hereof, Forms. 519 erect and build on the said hereby granted lot a brick garage to secure the said yearly rent hereby reserved. And Further^ The said Charles Dunn does hereby for himself, and for his heirs, executors, administrators and assigns, expressly waive, relinquish and dispense unto the said Arthur Brown, his heirs, executors, administrators and assigns, all and every provisions and provision in the Act of Assembly of the Commonwealth of Pennsylvania, passed on the ninth day of April, A.D. 1849, entitled "An Act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent," so far as the same may exempt the said hereby granted lot and any part thereof, and any buildings or improvements to be erected or placed thereon, from levy and sale by virtue of any writ of execution that may be issued upon any judgment that may be obtained or en- tered in any action for the recovery of the rent hereby reserved, or hereby covenanted to be paid, and of any arrears thereof and of the costs of such action and execu- tion; also any other Act of Assembly now or hereafter to be passed, authorizing any stay of execution upon any judgment, until an appraisement of the property shall be made, or upon any other condition whatsoever ; so that it shall be lawful for the said Arthur Brown, his heirs, executors, administrators or assigns, to proceed by execu- tion to levy upon and sell the said hereby granted lot of ground, and every part thereof, with the buildings and improvements as aforesaid, in the same manner and to the same extent and to the same effect, to all intents and purposes, as if the said Act of Assembly had not been passed ; Provided always^ nevertheless, that if the said Charles Dunn, his heirs or assigns, shall and do at any time after the expiration of ten years from the date hereof, pay or cause to be paid to the said Arthur Brown, his heirs or assigns, the sum of One Thousand ($1,000), lawful money as aforesaid, and the arrearages of the said yearly rent to 520 Conveyancing in Pennsylvania. the time of such payment, then the same shall forever thereafter cease and be extin^ished, and the covenant for payment thereof shall become void; and then he the said Arthur Brown, Ms heirs or assigns, shall and will at the proper costs and charges in the law of the said grantee, his heirs or assigns, seal and execute a suffi- cient release and discharge of the said yearly rent hereby reserved, to the said Charles Dunn, his heirs and assigns, forever, anything hereinbefore contained to the contrary thereof notwithstanding. And the said Arthur Brown for himself and for his heirs, executors and admin- istrators, does covenant, promise and agree to and with the said Charles Dunn, his heirs and assigns, by these pres- ents, that he the said Charles Dunn, his heirs and assigns, paying the said yearly rent, or extinguishing the same and taxes, and performing the covenants and agreements afore- said, shall and may at all times hereafter forever, freely, peaceably and quietly have, hold and enjoy all and sin- gular the premises hereby granted, with the appurte- nances, and receive and take the rents and profits thereof, without any molestation, interruption or eviction of the said Arthur Brown, his heirs, or any other person or per- sons whomsoever, lawfully claiming or to claim, by, from or under him, them, or any of them, or by or with his, their, or any of their act, means, consent or procurement. In Witness Whereof^ The said parties to these presents have hereunto interchangeably set their hands and seals the day and year first above written. Sealed and Delivered in the presence of us : Edward Farr, John Kerr. ( Acknowledgment. ) Arthur Broion, Charles Dunn. Forms. 521 45. EXTINGUISHMENT OR ASSIGNMENT OF GROUND RENT. (Note: The same form is used for both assignment and extinguishment of ground rents. If the instrument is made to the owner of the land subject to the rent, it operates to extinguish the rent by merger ( see Section 163 ) . If made to a third person it operates as an assignment of the rent. ) This Indenture made the first day of September in the year of our Lord one thousand nine hundred and twenty- two BETWEEN Arthur Brown, of the City and County of Philadeplhia, and Charles Dunn, of the same city and county, of 'the orther part: WITNESSETH^ That the said Arthur Brown for and in consideration of the sum of One Thousand Dollars ($1,000.00), lawful money of the United States of America, unto him well and truly paid by the said Charles Dunn at and before the sealing and de- livery of these presents, the receipt whereof is hereby ac- knowledged, has granted, bargained, sold, released and confirmed and by these presents does grant, bargain, sell, release and confirm unto the said Charles Dunn, his heirs and assigns, all that certain yearly ground rent, charge, or sum of sixty dollars ($60.00), chargeable on and payable in half yearly payments on the first day of the months of February and August in every year without deduction for taxes, etc., issuing out of all that certain lot or piece of ground situate (Here describe premises). Together with all and singular the ways, means, rights, privileges, rem- edies, right and power to entry, distress and of re-entry, and all other the covenants, ways, means, and remedies for recovering payment of the aforesaid yearly Ground Rent and the arrearages thereof, and all and singular the other rights, incidents and appurtenances whatsoever thereunto belonging, and the revisions and remainders thereof; and all the estate, right, title, interest, property, claim and demand whatsoever, of him the said Arthur Brown, either in law or equity as well of in, to and out of the said yearly rent or sum hereby granted, as also of. 522 CONVETANCING IN PENNSYLVANIA. in and to the aforesaid lot or piece of ground, with the appurtenances, for and out of which the said rent is issu- ing and payable: To have and to hold the said yearly ground rent with the appurtenances hereditaments and premises hereby granted, or mentioned and intended so to be, with the rights, remedies, incidents and appurtenances, unto the said Charles Dunn, his heirs and assigns, to and for the only proper use and behoof of the said Charles Dunn, his heirs and assigns forever. And the said Arthur Brown does by these presents, covenant, grant and agree, to and with the said Charles Dunn, his heirs and assigns, that he, the said Arthur Brown, all and singular the here- ditaments and premises hereby granted or mentioned or intended so to be, with the rights, remedies, incidents and appurtenances, unto the said Charles Dunn, his heirs and assigns, against the said Arthur Brown, his heirs and as- signs and against all and every person or persons whomso- ever lawfully claiming or to claim, by, from or under him, them or any of them, shali. and will Warrant and for- ever Defend by these presents. In witness whereof, the said parties of these presents have hereunto interchangeably set their hands and seals the day and year hereinbefore first written. Sealed and Delivered in the presence of us : John Dob KiCHARD KOE J r Arthur Brown Received, the day of the date of the above Indenture, of the above-named Charles Dunn the sum of One Thousand Dollars ($1,000), being the full consideration money above mentioned. Witness at Signing^ John Doe ( Acltnowledgment) Arthur Brown Forms. 523 46. LEASE OF CITY PROPERTY. This Agreement Witnbsseti-i^ that Arthur Brown, (hereinafter called the lessor), doth hereby let unto Charles Dunn, (hereinafter called the lessee), all that CEETAIN lot or piece of ground with the dwelling house thereon erected situate at number 1500 North X Street, Philadelphia, Pa., for the term of three months from the first day of May, A. D. 1^22, yielding and paying therefor unto the lessor the monthly rent of fifty dollars, payable in monthly payments of fifty dollars on the first day of each month in advance, at 300 Y St., Philadelphia, or at such other place as said lessor may from time to time di- rect. And it is hereby covenanted between the lessor and lessee , for themselves, their respective heirs or successors and assigns as follows: — 1st. The lessee will pay the rents hereby reserved ac- cording to the terms of this lease, and will also pay, if said premises are equipped with water meter, all charges in ex- cess of the annual minimum water meter rates, propor- tioned monthly, otherwise all charges for water other than for dwelling house purposes, accruing during the continu- ance of this lease ; and all bills for the same, if paid by the lessor, may be distrained for and recovered as rent. 2nd. The lessee shall not occupy the demised premises otherwise than as a dwelling house, nor shall the lessee assign this lease, nor underlet the premises or any part thereof. Any transfer by process of law shall be deemed an assignment by the lessee , and the lessee shall not do or knowingly suffer to be done any act, matter or thing, where- by any policy of insurance on the demised premises shall, according to the conditions thereof become avoided or sus- pended. No sign or signs shall be painted upon any part of the demised premises, other than on glass in window or doors. 3rd. The lessee shall keep the demised premises in good condition during the continuance of this lease, remove all 524 Conveyancing in Pennsylvania. ashes, rubbish and refuse matter therefrom, replace or re- pair any electric fixtures or wiring that may be damaged or broken, and at the termination of this lease deliver up the said premises to the lessor in as good order and repair as the same now are, reasonable wear and tear and damage by accidental fire excepted. Any improvements or additions made by the lessee shall not be detached from the prop- erty, but shall remain for the benefit of the lessor. 4th. The lessee agrees that all goods and property on the demised premises shall be liable to distress for rent, un- paid water rent, repairs to or replacing electric fixtures and wiring, and for all costs of such distress and officers' com- missions, including the five per cent chargeable by Act of Assembly to the lessor , and waives the benefits of all laws made, or to be made, exempting any property, rights or demands, on the demised premises or elsewhere, from levy, attachment or sale on distress or execution; such waiver to extend to distress and sale after removal, and also to executions issued on any judgment either for possession or damages, recovered upon this lease or entered or confessed under the terms thereof, the lessee also waiving all rights to stay of execution on any such judgment. And all goods and chattels removed from the premises, shall be liable to distress and sale for ninety days after their removal, in the same manner and subject to the same conditions, provi- sions, agreements and waivers as if they were on the prem- ises hereby leased. 5th. Either party may determine this lease at the expi- ration of the term hereby created, by giving to the other 30 days' written notice of intention so to do, but in default of such notice, this lease, with all the conditions and cov- enants thereof, shall continue for the additional term of one month and so on from month to iiionth until termi- nated by either party giving to the other 30 days' written notice of intention to terminate said lease at the expiration of the then current term. Provided, however, that if the lessor shall have given 30 days' written notice prior to the Forms. 525 end of any term of intention to change the conditions of this lease, and the lessee shall hold over after such notice, he shall be considered lessee under the terms and conditions mentioned in such notice, for such further period as he may occupy the demised premises, and until this lease is termi- nated by notice or otherwise, as herein provided. Leaving notice upon the premises shall be a sufficient service. 6th. The lessor reserves the right at all times to visit and inspect the demised premises, personally or by agent, and to cause any repairs to be made which he may deem proper ; also the right at any time to put up a "For Sale" sign in such place on the premises as he may elect, and a "For Rent" sign immediately, in case notice to quit is given. 7th. If proceedings shall be commenced by the lessor to recover possession under the Acts of Assembly, either at the end of a term or for non-payment of rent, the lessee expressly waives the right to the three months' notice re- quired by the Act of December 14th, 1863, and to the fifteen or thirty days' notice required by the Act of April 3rd, 1830, and agrees that five days' notice shall be sufficient in either or any such case. 8th. The said lessee further waive all rights under the Act of Assembly March 21st, 1772, and all supplements and amendments thereto that may hereafter be passed, and authorizes the sale of any goods distrained for rent at any time after the five days from said distraint, without any appraisement thereof. 9th. If the lessee shall violate any covenant or condi- tion herein contained, or shall fail to vacate the demised premises at the end of any term, then this lease shall ab- solutely determine at the option of the lessor , to be sig- nified by written notice to that effect delivered to the lessee, or left upon the demised premises. And when the lease shall be so determined, any attorney may immediately appear for the lessee , in an amicable action of ejectment to be brought by the lessor in any competent court, for the re- 526 CONVETANCINQ IN PENNSYLVANIA. covery of the demised premises and damages for the deten- tion thereof, and therein confess judgment against the lessee , for which this agreement (or a true copy thereof), shall be a sufficient warrant; and the lessor may issue thereon all the necessary writs or process for recovering possession of said premises, with damages for detention (to be assessed at an amount equal to all unpaid rent) and costs. No determination of this lease, nor recovery of pos- session or damages as aforesaid, shall release the lessee from liability for the breach of any covenants herein con- tained. 10th. The lessee waives all right of appeal from, or writ of error or certiorari to any judgment, order or decree that may be entered against him by any court or magistrate, for rent, damages, possession or otherwise; and does fur- ther expressly waive the benefit of any and all stay or execution or exemption from civil process under any law of the Commonwealth of Pennsylvania, or of the United States, now in force or hereafter to be passed, and par- ticularly the acts of Assembly approved April 18th, 1861 (P. L. 408), and May 3rd, 1917 (No. 71), exempting from civil process persons in the military service of the State or of the United States — this waiver to extend to and be applicable in any and all proceedings or actions for the recovery of possession, for damages, or for rent, whether by distress or otherwise. And it is further expressly agreed that execution for possession, for damages, or otherwise, may issue upon any judgment entered in any proceedings hereon, immediately upon the entry thereof. In vp^itness whereof^ the said parties have hereunto set their hands and seals. Dated the twentieth day of April, A. D. 1922. Sealed and Dbli\t]rbd in presence of George Hart John Kerr Arthur Brovpn^ (Seal) Charles Dunn^ (Seal) Forms. 527 Fob value received, the undersigned hereby becomes surety to the lessor or his assigns, for the true and faith- ful performance of the above contract, and every renewal thereof, on the part of the said lessee , without recourse to the said lessee being first required, and I do hereby waive the benefit of any and all exemption laws, on all ex- ecutions issued to recover any judgment obtained against me in pursuance of the above contract. Witness my hand and seal the 20th day of April, A. D. 1922. Sealed and Delivered ) „ „ , „ , . > Everett Fakb (Seal) m presence of j Owns property 600 N. W. St. Resides at 600 N. W. St. 47. LONGER FORM OF LEASE. This Agreement Witnesseth that Arthur Brown, here- inafter called lessor hereby lets unto Charles Dunn, here- in after called lessee, all that certain lot or piece of ground with the grocery stare thereon erected located at number 600 North X Street, Harrisburg, Pa., for the term of one year from the first day of April, A. D. one thousand nine hundred and twenty-two ( 1922 ) , at the rent of one hundred (|100) per month to be paid monthly in advance, the first day of each month. Lessee hereby agreed to pay the said rent to lessor on the days and times aforesaid, at 300 Y Street, Harrisburg, or at such other place as lessor from time to time may direct in writing without demand being made therefor, and to pay within ten days after the same shall become due and pay- able all bills for gas and electricity consumed in or on said premises during the continuance of this lease, and to pay as rent all charges for water in excess of the annual minimum water meter rates in force at the execution of this lease. Lessee agrees that he will not assign this lease, or under- let the said premises or any part thereof, or use or occupy 528 Conveyancing in Pennsylvania. the same otherwise than as a grocery store without les- sor's written consent first had and obtained. Any lawful levy, execution or other legal process, sale in bankruptcy or insolvency, or any compulsory procedure, may be deemed and taken at lessor's option to be an assignment within the meaning of this contract. If lessee shall be- come embarrassed, or make an assignment for the benefit of creditors, or if a petition in bankruptcy shall be filed by or against him, or a bill in equity be filed or other proceeding be taken for the appointment of a receiver for him, or if his personal property shall be sold by sheriif's or marshal's sale, then the rent for the said term, or for whatever por- tion thereof lessor may desire, shall at once become due and payable as if by the terms of this lease it were all payable in advance, and shall be first paid out of the proceeds of such assignment, bankrupt or insolvent estate, or sale, any law, usage or custom to the contrary notwithstanding. During the said term lessee will keep said premises in good condition, order and repair, will remove, or cause to be removed, any and all ashes, rubbish or refuse matter therefrom, and at the termination of the said term will de- liver up the premises in as good condition, order and repair as the same now are in, reasonable wear and tear and dam- age by accidental fire or act of God excepted. Lessee agrees that no explosive materials of any kind shall be kept in or about the premises, except that kerosene may be kept in tightly closed containers in the shed to the rear of the building. Lessee shall not do or commit, or suffer to be done or committed, any act, matter or thing whereby, or in con- sequence whereof, the policy of policies of insurances on the premises or any part thereof, or on the building of which the demised premises may be a part, shall become void or suspended, or whereby or in consequence whereof the insurance rate on the premises, or any part thereof, or on the building of which the premises may be a part shall be rendered higher than at the date of the execution Forms. 529 of this lease, and lessee will pay at once, as rent, any in- crease of premium caused by reason of any breach of this covenant. Lessee agrees that lessor shall not be held responsible for, and lessor is hereby entirely relieved from, any liabil- ity by reason of damage or injury to persons or property caused by any break or leak in any part of the demised premises or in the pipes or plumbing work of the same, or from any other place or quarter, or that may be caused by the acts of any person or persons whether representing les- sor otherwise. Lessee hereby releases lessor from all responsibility, and assumes all liability in any action for damages which may arise from any kind of injury to any person or property by or on account of the use, misuse or abuse of all elevators, hatches or openings of any kind whatsoever that may at any time exist upon the premises, or which may arise from any other cause in connection with the premises, excepting such injuries as may be caused by any condition existing in the premises at the time possession is delivered to the lessee. No alteration or improvements to the premises shall be made without first having lessor's written consent, and any permanent improvements or alterations made by les- see after such consent shall have been given shall become lessor's property, and shall remain or be removed at les- see's cost, at the expiration or other sooner determination of this lease, as lessor may elect, except that lessee may re- move at the expiration of this lease any show-cases, shelves, or machines installed by him during the term of this lease. Lessee may place upon the outside walls advertising signs containing his name and business but shall not erect or cause to be erected any other signs, or place or allow to be placed any stands, booths or show-cases upon the door- steps, vestibules or outside walls or pavements of the prem- ises without lessor's written consent. 34 530 CoNVETANCmG IN Pennstlvanu. Lessee agrees at his own cost and expenses promptly to comply with and perform anything and everything as may be required under notice from any of the constituted authorities. In the event of the total destruction of the said store by fire or other casualty, the rent shall cease from the date of such fire or other casualty, and possession of the premises shall be surrendered forthwith by lessee to lessor. Lessor shall have the right at any time after notice from either party of his intention to determine this lease to dis- play a "For Rent" sign or both "For Sale" and "For Rent" signs, in a conspicuous place in front of the premises. Les- see shall permit the premises to be examined by any person or persons upon an order from lessor. Lessee shall permit lessor or his duly authorized employees to enter the prem- ises at all times, if lessor shall in his free discretion so de- sire, and to make all necessary repairs in such manner as will not seriously interfere with the business of lessee. If lessee, or anyone acting on lessee's behalf or con- nected with lessee in any manner, shall at any time during the continuance of this lease attempt to remove, or mani- fest what may seem in lessor's judgment to be an intention to remove, any of his goods or effects out of or off from the premises without having paid and satisfied lessor in full for all rent which shall become due during the term of this lease, or any renewal thereof, then and in such case such removal, or attempt or seeming intention to remove, shall be considered fraudulent, and the whole rent for the whole term of the lease, or any renewal thereof, shall be taken to be due and payable ; and lessor may proceed by landlord's warrant or other process to distrain and collect the whole in the same manner as if by the conditions of this lease the whole rent were payable in advance. If lessee shall remove from the premises during the said term, or any renewal thereof, or cease to use or occupy the same as herein pro- vided, lessor in his discretion may immediately, and with- out liability therefor, re-enter said premises by force or FoEMs. 531 otherwise, without notice or demand, and lease the prem- ises to any other person or persons, and lessee shall be liable for any loss in the rents for the balance of the then current term and any renewal term for which lessee may be obligated. Lessee agrees that if the rent, or any charges herein re- served as rent, shall remain unpaid on any day on which the same ought to be paid, lessor may enter the premises, and proceed by distress and sale of the goods there found to levy the rent and all costs and officers' commissions, in- cluding watchman's wages and the five per cent, chargeable by Act of Assembly to lessor; and lessee agrees that in such case the costs, officers' commission and other charges shall immediately attach and become part of lessor's claim for rent, and that any tender of rent without said costs, commissions and other charges, made after the issue of a warrant of distress, shall not be sufficient to satisfy lessor's claim, any law, usage or custom to the contrary notwith- standing. Lessee also waives the benefit of all exemption laws in relation thereto, now made or hereafter to be passed, and of all laws providing for an inventory and ap- praisement of any goods which may be levied upon under this lease and of all laws regarding any limitation of time in which distress is to be made after removal of goods, and further relieves lessor from any obligation of proving or identifying such goods. Lessee also waives the benefit of all stay laws and of all present and future laws passed for the benefit of those in the service of the State of Penn- sylvania, or the United States, including any and all parts of the acts of May 3, 1917, P. L. 113, and June 22, 1917, P. L. 628. Lessee agrees that all these waivers shall extend and be applicable to any process, execution or executions that may be issued in any and all suits, actions or proceed- ings, for the collection of rent or other charges herein re- served as rent, due and in arrear, for any gas bills left un- paid, for any expenses incurred in removing ashes, rubbish or refuse matter from the premises, and for damages for 532 CONVETANCINQ IN PENNSYLVANIA. the non-fulfilment of any of the covenants herein contained, and agrees that this lease shall be a sufficient warrant to lessor or to any attorney at laws, to confess judgment there- for against lessee. Lessee agrees to lease no goods of any kind for use on the demised premises with the understand- ing that such goods shall be exempt from levy for rent and other charges herein reserved as rent, any law, usage or custom to the contrary notwithstanding. All goods and chattels removed from the premises shall be liable to dis- tress and sale for ninety days after their removal in the same manner and subject to the same conditions, provi- sions, agreements and waivers as if they were on the premises hereby leased. The lessee, at the termination of this lease, shall have the option of renewing and extending it for further term of one year upon the same terms and conditions, by giving the lessor a written notice of such intention at least ninety days prior thereto. In the event of such renewal, either party hereto may determine this lease at the end of the second year by giving the other written notice thereof, at least ninety days prior thereto, but in default of such no- tice this lease shall continue upon the same terms and con- ditions as are herein contained, including the powers of attorney hereby granted, for a third period of one year; and so on from year to year, unless and until terminated by either party hereto giving to the other ninety days' written notice for removal before the expiration of the then current term. The notices herein provided for either party must be given by registered mail, and the only admissible evidence of the giving thereof shall be a registry return receipt signed by the party or his authorized agent. Pro- vided, however, that if lessor shall have given ninety days' written notice before the expiration of the second year, if the lessee exercises the option to renew as above provided, or of any further extension or renewal thereof as above, of his intention to change the terms and conditions of this lease, and lessee shall hold over after the expiration of the Forms. 533 time mentioned in such notice, he shall be considered les- see under the terms and conditions mentioned in such no- tice, for such further period as he may remain in posses- sion of the premises and until this lease is terminated by notice as herein before provided. If the rent, or any charges herein included as rent, shall at any time be in arrear and unpaid, or if lessee shall underlet or otherwise use the premises than as above ex- pressed, or shall fail to comply with the conditions of this lease, or notice given under the terms hereof, or shall not well and truly perform and fulfill all the covenants and agreements herein contained on the part of lessee to be per- formed and kept, then this lease shall, at lessor's option, cease and absolutely determine, and any attorney at law may immediately thereafter, as attorney for lessee, at the sole request of lessor, sign an agreement for entering in any competent court an amicable action and judgment in ejectment (without any stay of exlecution or appeal), against lessee and all persons claiming under lessee for the recovery by lessor of possession of the hereby demised prem- ises, without any liability on the part of the said attorney, for which this shall be a suificient warrant ; and thereupon a writ of habere facias possessionem may issue forthwith without any prior writ of proceeding whatsoever ; and any attorney at law, as attorney for lessee, may appear for and confess judgment against lessee for any rent in arrear, in- cluding costs, commissions and other charges, and for any damages for the breach of any agreement herein contained. Lessee hereby releases to lessor all errors and defect's what- soever in entering such action or judgment, or causing such of habere facias possessionem to be issued, or in any pro- ceeding thereon or concerning the same ; and hereby agrees that no writ of error or objection or exception shall be made or taken thereto ; and a copy of this lease, verified by affidavit, being filed in said action, it shall not be necessary to file the original as a warrant of attorney, any law or rule of court to the contrary notwithstanding. No such 534 Conveyancing in Pennsylvania. determination of this lease, or taking or recovering pos- session of the premises shall deprive lessor of any other action against lessee for possession, for rent, for any gas bill left unpaid, for any expenses incurred in removing ashes, rubbish or refuse matter from the premises, or for damages. All rights, and liabilities herein given to, or imposed upon, either of the parties hereto shall extend to the heirs, executors, administrators and assigns of such party. In witness whereof the said parties have set their hands and seals hereto this third day of September, one thousand nine hundred and twenty (1920). Signed, sealed and delivered in the presence of (Signed) Arthur Brovtn (Seal) (Signed) Charles Dunn (Seal) 48. FARM LEASE. This Agreement Witnesseth, That Benjamin Keagel, of Carlisle, Pa., doth hereby let and demise unto Daniel Kob- erts, all that certain (here describe property. See Form 22, page 463) for the term of one year from the first day of April, A. D., nineteen hundred twelve, at the rent of six hundred dollars per annum, to be paid quarterly in advance by the lessee at 521 Main Street, Carlisle, Pa., or at such place as the lessor or subsequent owner may require; the first quarterly payment thereof to be made on the first day of April, nineteen hundred twelve, which said rent the said lessee doth hereby agree to pay to the said lessor on the days and times aforesaid, and that he shall not nor will assign this lease nor underlet said premises, or any part thereof, or use or occupy the same other than as a farm, without the written consent of the said lessor first had and obtained, and shall and will during the said term keep, and at the Forms. 535 termination thereof deliver up, the said premises in as good order and repair as they are now in, reasonable wear and tear and casualties which may happen by fire or otherwise only excepted. The lessee agrees as follows, viz : That he will use on the said premises all the hay, straw and fodder which shall be grown thereon ; that he will not sell, assign, pledge, remove or cause or suffer to be removed any of the dung, manure or compost made or which shall be on said premises, and that he will use and spread the same thereon at proper times and places for the nourishment thereof, and that upon the termination of this lease or any subsequent letting thereunder he will leave upon the said premises any remaining hay, straw, fodder or manure, which shall then become the property of the lessor ; that he will not convert into tillage or garden ground any of the pasture or meadow ground ; that he will not mow any of the meadow or pas- ture ground more than once in any one year ; that he will not cut down or use any of the trees upon the said prem- ises ; that he will mow or keep down in the usual manner, thistles, docks, and other seeding weeds ; that he will keep the fences in good repair, the lessor furnishing such ma- terials for the purpose as he may think necessary ; that he will cultivate the said farm with respect to crops and in every respect according to the usual course and custom of good husbandry, sowing winter grain with a sufficient quantity of timothy and clover seed. And if the rent shall remain unpaid on any day on which the same ought to be paid, then the lessor may enter the premises, and proceed by distress and sale of the goods there found, to levy the rent and all costs and officer's commissions. The said lessee further agrees that all goods on the said premises, and for thirty days after removal shall be liable to distress for rent and hereby waives the benefit of all exemption laws in relation thereto or to any execution. And it is hereby mutually agreed, that either party hereto may de- termine this lease at the end of the said term, by giving the other notice thereof, at least three months prior thereto, but in default of such notice, this lease shall continue upon 536 Conveyancing in Pennstlvania. the same terms and conditions as are herein contained, for a further period of one year and so on from year to year or until terminated by either hereto giving to the other three months' written notice for removal previous to the expira- tion of the second or any succeeding or extended term under this lease, express or implied. And it is further agreed, that if the lessee shall die or if there shall be any involun- tary assignment of this lease by law or otherwise, or if the said rent shall at any time be in arrear and unpaid, or if the said lessee shall underlet or otherwiEe use the said premises then as above expressed, or shall fail to comply with the conditions of this lease or shall not well and truly perform and fulfill all and every the covenants and agree- ments herein contained on the part of the lessee to be per- formed and kept then this lease shall, at the option of the said lessor, cease and absolutely determine, and any attor- ney may immediately thereafter, as attorney for the said lessee, at the sole request of the said lessor, sign an agree- ment for entering in any competent court, an amicable action and judgment in ejectment (without any stay of execution or appeal) against the said lessee and all per- sons claiming under said lessee for the recovery by the lessor of possession of the hereby demised premises, without any liability on the part of the said attorney, for which this shall be a sufficient warrant; and thereupon a writ of habere facias possessionem may issue forthwith without any prior writ or proceeding whatsoever, and the lessee hereby releases to the lessor all errors and defects whatso- ever in entering such action or judgment, or causing such writ of habere facias possessionem to be issued, or in any proceeding thereon, or concerning the same; and hereby agree that no writ of error or objection or exception shall be made or taken thereto ; and a copy of this lease verified by affidavit, being filed in said action, it shall not be neces- sary to file the original as a warrant of attorney, any law or rule of court to the contrary notwithstanding. No such determination of this lease, nor taking or recovering pos- session of the premises, shall deprive the lessor of any other Forms. 537 action against the lessee for possession for rent or for dam- ages. It is mutually agreed that this lease shall extend and ap- ply to and bind the respective heirs, assignees, devisees, executors and administrators of the lessor and lessee and all covenants, agreements, conditions and provisions herein shall apply to and bind the owner of the lease or demised premises as if the same ran with the land or as if they were original parties and the lessee agrees that no objection shall be made to the said ejectment proceedings by reason of rent not having been demanded or collected when due or by any waiver. In witness whereof, the said parties have hereunto set their hands and seals, this first day of February, one thou- sand nine hundred twelve. Sealed and delivered in the j presence of i Benj. Reagel. (Seal.) William Linn. ( Daniel Roberts. (Seal.) I Charles Zimmerman. J 49. FARM LEASE ON SHARES. This Agreement Witnessbth, That Frank Boeliva doth hereby let and demise unto Frederick Herman, (here de- scribe farm with buildings ) , for the term of one year from the first day of April, A. D. nineteen hundred twelve ; the said Frederick Herman to yield and pay unto the said Frank Boeliva one-half part of all the grain which shall be raised or grown upon the said premises, and which let- ting is to be according to the following agreements : The said Frederick Herman shall plant crops and culti- vate the farm as follows ( state how fields are to be planted ; what crops are to be sown ; how much winter grain, etc. ) . Each party is to find and pay for one-half the seeds for crops. The said Frederick Herman is to find and pay for all farming implements, all the working stock, all the neces- sary labor and all the other expenses in working and culti- vating the farm and is to work the farm diligently in a 538 CONVETANCING IN PeNNSYLVANU. husbandlike manner. The said Frederick Herman is to have the right to keep and feed not more than homed cattle and horses ; the products of the dairy and garden products are to be for the exclusive use and benefit of the said Frederick Herman. The manure, hay, straw and corn which shall be grown upon the premises and all ma- nure made thereon shall belong solely to the said Frank Boeliva, but the same shall be used on the farm for its nourishment, but any part thereof which shall not have been so used shall belong to the said Frank Boeliva. The said Frank Boeliva shall have the right to store in the farm buildings his share of the crops, and the said Frank Boeliva reserves the right of entering and visiting the said farm and the farm buildings, to inspect the farming operations, re- ceive, take care of and dispose of his share of the grain. The said Frederick Herman shall keep the fences up and in good order and repair at his own expense; keep down the weeds and preserve all trees and timber. It is agreed that there shall not be any partnership between the parties hereto; and it is hereby mutually agreed that the said Frank Boeliva shall have the ownership of one-half part of all the grain sowed when in the ground and until it shall be divided and that all crops shall be cut and harvested in due season by the said Frederick Herman, and that there shall be a division between the said Frank Boeliva and Frederick Herman of their shares of the grain upon such harvesting. And the said lessee doth hereby agree to pay the said rent to the said lessor and deliver to him his share of the said grain at the time aforesaid, at or in said barn or at such other place, within said as said lessor may in writing from time to time direct, without demand being made therefor, and that he will not assign this lease nor underlet the said premises, or any part thereof, or use or occupy the same other than as a farm without the written consent of the said lessor first had and obtained, and dur- ing the said term will keep said premises in good condition, order and repair, and at the termination of said term will deliver up the said premises in as good condition, order and FoEMS. 539 repair as the same now are, reasonable wear and tear and casualties which may happen by fire or otherwise excepted. And the said lessee further agrees that if the rent shall remain unpaid on any day on which the same ought to be paid, then the lessor may enter the premises and proceed, by distress and sale of the goods there found, to levy the rent and all costs and officer's commissions. The said lessee further agrees that all goods on the said premises, and for thirty days after removal, shall be liable to dis- tress for rent and hereby waives the benefit of all exemp- tion laws in relation thereto. And said lessee further agrees that this waiver shall extend and be applicable to any process, execution or executions that may be issued in any and all suits, actions or proceedings, for the col- lection of rent due and in arrear, and for damages for the nonfulfillment of any of the covenants heiein contained. And it is further agreed, that if the said rent or grain shall at any time be in arrear and unpaid or undelivered, or if the said lessee shall underlet said premises or any part thereof, or assign this lease, or in case of an assignment of the lease by operation of the law, or if he shall use the said premises otherwise than as above expressed and provided, or shall not well and truly perform and fulfil all and every the covenants and agreements herein contained on the part of the lessee to be performed and kept, or in case the lessee shall die ; or in case of a levy by execution on the lessee's right or interest in the crops, then this lease shall, at the option of the said lessor, cease and absolutely determine, and any attorney may immediately thereafter, as attorney for the said lessee, at the sole request of the said lessor, sign an agreement for entering in any competent court, an amicable action and judgment in ejectment (without any stay of execution or appeal) against the said lessee and all persons claiming under said lessee for the recovery by the said lessor of possession of the hereby demised prem- ises, without any liability on the part of the said attorney, for which this shall be a sufficient warrant ; and thereupon a writ of habere facias possessionem may issue forthwith 540 Conveyancing in Pennsylvania. without any prior writ or proceeding whatsoever, and the lessee hereby releases to the lessor all errors and defects whatsoever in entering such action or judgment, or causing such writ of habere facias possessionem to be issued, or in any proceeding thereon, or concerning the same; and hereby agrees that no writ of error or objection or excep- tion shall be made or taken thereto; and a copy of this lease verified by affidavit, being filed in said action, it shall not be necessary to file the original as a warrant of attorney, any law or rule of court to the contrary notwithstanding. No such determination of this lease, nor taking or recover- ing possession of the premises, shall deprive the lessor of any other action against the lessee for possession, rent, grain or damages. All rights and liabilities herein given to or imposed upon either of the parties hereto, shall ex- tend to the heirs, executors, administrators, successors and assigns of such party. In witness whereof, the said parties have hereunto set their hands and seals this first day of March, one thousand nine hundred twelve. Sealed and delivered in the 1 I presence of I Frederick Herman. (SeaJ.) Louis Schmidt. | Frank Boeliva. (Seal.) I Otto Kramer. J 50. LETTER OR POWER OF ATTORNEY APPOINT- ING A PERSON ATTORNEY IN FACT TO ACT FOR AND EXECUTE INSTRUMENTS FOR THE PRINCIPAL. Knov? All Men by These Presents, That I, John Jones, of the City of Philadelphia, merchant, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, James Black, of Philadelphia, my true and lawful attorney, for me, and in my name, place and stead, to enter into and take possession of all messuages, lands, tenements, hereditaments, and real estate whatever, in (here describe the lands), to or in which I am Forms. 541 now possessed, seised or am or in any way entitled or inter- ested ; and to grant, bargain, and sell the same, or any part or parcel thereof, for such sum or price and on such terms as to him shall seem meet ; and for me and in my name to make, execute, acknowledge, and deliver good and suflEicient deeds and conveyances for the same, either with or without covenants and warranty; and, to let and demise the said real estate for the best rent that can be procured for the same; and to ask, demand, recover, and to receive all sums of money which shall become due and owing to me by means of such bargain, sale, or lease, and to take all law- ful ways and means for the recovery thereof ; to compound and agree for the same, and to execute and deliver suf- ficient discharges and acquaintances therefor. (If it is de- sired to permit the attorney to substitute another to act in his absence, insert also this clause: With power to substi- tute one or more attorney or attorneys under him in or concerning the premises or any part thereof, and the same at his pleasure to revoke.) Giving and granting unto my said attorney (or his substitute or substitutes) full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do, if personally present; hereby ratify- ing and confirming all that my said attorney (or his sub- stitute or substitutes ) shall lawfully do or cause to be done by virtue hereof. In Witness Whereof, I have hereunto set my hand and seal, this first day of July, in the year of our Lord one thousand nine hundred and twenty-two. Signed, sealed and delivered in the presence of William Blinn. OSCAK Flinn. It is advisable to record such letter of attorney and in order to do so it must be acknowledged. The form of ac- knowledgment may be as follows : -\ John Jones. ( Seal. ) 542 Conveyancing in Pennstlvanu. State of Pennsylvania, SS County of Philadelphia, ) Before me the subscriber, a notary public of the Com- monwealth of Pennsylvania, residing in Philadelphia, per- sonally appeared John Jones, who in due form of law acknowledged the foregoing to be his act and deed to the intent that the same might be recorded as such. William Blinn. Notary Public. 51. LETTER OF SUBSTITUTION. ( Note : Where the attorney of fact is given power to sub- stitute another, to avail himself of this substitution he should execute the following general letter of substitution. ) GENERAL LETTER OF SUBSTITUTION. To all persons to whom these presents shall come, greet- ing: Whereas, John Jones, of the City of Philadelphia, State of Pennsylvania, merchant, in and by a certain in- strument of writing or letter of attorney, bearing date the first day of July, in the year of our Lord one thousand nine hundred and eight, did make, constitute and appoint James Black, to, &c., (as in the original power), as in and by the said letter of attorney, which is hereunto an- nexed (or, recorded, &c.), relation being thereto had, ap- pears : Now know ye, that, I, the said James Black, have made, appointed and substituted, and by these presents, by virtue of the power and authority given to me by the said- recited letter of attorney, do make, appoint and substitute John Jacobs, of the City of Philadelphia, State of Penn- sylvania, to be the true and lawful attorney of the said John Jones, the constituent in the foregoing letter of at- torney named, to do, execute and perform all such acts, deeds, matters and things, as shall and may be requisite and necessary to be done and performed for effecting the purposes and objects in the said letter of attorney con- tained, as fully and effectually, in all respects and to afl FoBMs. 543 intents and purposes, as I myself might or could do, in virtue of the power and authority aforesaid, if personally present ; hereby ratifying and confirming all and whatso- ever my said substitute may lawfully do by virtue hereof. In Witness Whereof, I have hereunto set my hand and seal, this second day of September, in the year of our Lord one thousand nine hundred and twenty-two. Signed, sealed and delivered in the presence of William Blinn. OscAK Flinn. John Jones. ( Seal. See note to form 50, page 540, as to necessity for ac- knowledgment. 52. LETTER OR POWER OF ATTORNEY TO SAT- ISFY MORTGAGE. I, John Beow^n, assignee of Eichard Smith, the mort- gagee named in a certain indenture of mortgage executed and given by Simon Large, to secure the payment of two thousand dollars, with interest, which mortgage is dated the first day of April, 1904, and recorded in the recorder's office of Bucks County, in Mortgage Book No. 98, page 65, and the assignment whereof is recorded in the same office in Mortgage Book No. 300, page 265, do hereby acknowl- edge that I have received payment of the full amount due upon and secured by said mortgage; and I do hereby ap- point and authorize John L. Jones, Esq., as my attorney, to enter satisfaction upon the record thereof as effectually as I could do if personally present. Witness my hand and seal the 12th day of May, A. D. 1922. Witnesses : C. D. J^ John Brovs^n. (Seal. A. B. 544 Conveyancing in Pennstlvanu. 53. REVOCATION OF LETTER OR POWER OF AT- TORNEY. To all persons to whom these presents shall come, I, M. J., of Philadelphia, send greeting: Whereas I, the said M. J., did heretofore, by a certain instrument in writing or letter of attorney, empower I. C, of Philadelphia, to be my attorney, in my name and for my use, to recover and receive all such moneys, debts and effects whatsoever, as were due, owing or payable unto me by, &c., (as in the power) ; and to do all other matters and things, as fully asi I myself might or could do, for that purpose, &c., or to that or the like effect, as by the same writing, relation being there- unto had, at large appears : Now know ye, that I, the said M. J., for divers good causes, and valuable considerations me thereunto moving, have revoked, recalled, counter- manded, and made void, and by all these presents do re- voke, recall, countermand and to all intents and pur- poses make null, void and of none effect, the said recited writing or letter of attorney, and all powers and authori- ties therein and thereby given and granted, and all other matters and things therein or in any of them contained; and all acts, matters and things whatsoever which shall or may be acted, done or performed by virtue or means thereof in any manner whatsoever. (If another attorney is ap- pointed, continue as follows: "And further know ye, that I, the said M. J., do by these presents make, name, con- stitute and appoint, and in my place and stead put and depute, J. M., of Philadelphia, to be my true and lawful attorney, for me and in my name, &c.," as in the form of letter of attorney desired.) In Witness Whereof, I have hereunto set my hand and seal, this first day of October, in the year of our Lord one thousand nine hundred and three. Signed, sealed and delivered in the presence of W. S. L. M. J. P. M.J. (Seal.) Forms. 545 54. SCI. FA. MORTGAGE (Usual Form). THIS INDENTURE Made the sixteenth day of July in the year of our Lord one thousand nine hundred and twenty (1920) between JOHN BORROWER of the City of Philadelphia, (hereinafter called the Mortgagor) of the one part, and WILLIAM LENDER of the same City (hereinafter called the Mortgagee), of the other part: Whereas, the said Mortgagor, in and hy a certain Obli- gation or Writing obligatory under his hand and seal duly executed, bearing even date herewith, stands bound unto the said Mortgagee in the sum of Five thousand dollars ($5,000) lawful money of the United States of America, conditional for the payment of the just sum of Twenty-five hundred dollars ($2,500) lawful money as aforesaid, at the expiration of three years from the date thereof, together with interest thereon, payable half-yearly at the rate of six (6%) per cent, per annum, without any fraud or further delay, and for the production to the Mortgagee his Execu- tors, Administrators or Assigns, on or before the first day of September of each and every year, of receipts for all taxes and water rents of the current year assessed upon the mort- gaged premises, and also, from time to time, and at all times, until payment of said principal sum, for the keep- ing of the building mentioned in this Mortgage insured against loss or damage by fire for the benefit of the Mort- gagee in the sum of Twenty-five hundred dollars ($2,500). Provided, However, and it is thereby expressly agreed, that, if at any time default shall be made in the payment of interest as aforesaid for the space of thirty days after any half-yearly payment thereof shall fall due, or in such pro- duction to the Mortgagee his Executors, Administrators or Assigns, on or before the first day of September of each and every year, of such receipts for taxes and water rents of the current year assessed upon the premises mortgaged, or in the maintenance of such insurance, then and in such case the whole principal debt aforesaid shall, at the option of the said Mortgagee hi^ Executors, Administrators or 35 546 Conveyancing in Pennstlvanu. Assigns, become due and payable immediately, and pay- ment of said principal debt and all interest tbereon, may be enforced and recovered at once, anything therein con- tained to the contrary notwithstanding. And Peovided Further, however, and it is thereby expressly agreed, that if at any time thereafter, by reason of any default in pay- ment, either of said principal sum at maturity, or of said interest, or in the production of said receipts for taxes and water rents within the time specified, or in the main- tenance, of such insurance a writ of Fieri Facias is prop- erly issued upon the judgment obtained upon said Obli- gation, or by virtue of said Warrant of Attorney, or a writ of Scire Facias is issued upon this Indenture of Mortgage, an attorney's commission for collection, viz. : five per cent, shall be payable, and shall be recovered in addition to all principal and interest then due, besides costs of suit, and all expenses of effecting such insurance, as in and by the said recited Obligation and the Condition thereof, relation being thereunto had, may more fully and at large appear. Now This Indenture Witnesseth, That the said Mort- gagor, as well for and in consideration of the aforesaid debt or principal su!m of Tw^enty-five hundred dollars ($2,500) and for the better securing the payment of the same, with interest, unto the said Mortgagee his Executors, Administrator and Assigns, in discharge of the said recited Obligation, as for and in consideration of the further sum of One Dollar unto him in hand well and truly paid by the said Mortgagee at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged. Hath granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by these presents Doth grant, bargain, sell, alien, enfeoff, release and confirm unto the said Mortgagee his heirs and Assigns, ALL THAT CERTAIN lot or piece of ground with the buildings and improvements thereon erected, No. 5216 T Street, SITUATE on the SouthGasterly side of T Street at the distance of One hundred and five feet Southwestwardly Forms. 547 from the Southwesterly side of Fifty-seaond Street, in the One hundredth Ward of the City of Philadelphia; CONTAINING in front or breadth on the said Y Street Fifteen feet and extending of that width in length or depth Southeastwardly, between lines parallel with said Fifty- second Street, Seventy-one feet six inches to a certain three feet vyide alley extending from said Fifty-second Street to West Street. BEING the same premises which George Seller et ux., by Deed dated April 14, 1918, and recorded at Philadelphia in Deed Book J. M. H., No. 1215, page 382, etc., granted and conveyed unto the said John Borrower in fee. UNDER AND SUBJECT to certain building restric- tions. TOGETHER with the free and common use, right, lib- erty and privilege of the aforesaid alley as and for a pas- sageway and water course at all times hereafter forever. And Together with all and singular the Buildings, Ways, Waters, Water-Courses, Rights, Liberties, Privileges, Im- provements, Hereditaments and Appulrtenances whatso- ever thereunto belonging, or in anywise appertaining, and the Reversions and remainders. Rents, Issues and Profits thereof. To Have and to Hold the said lot or piece of ground with the Buildings, Hereditaments and Premises heireby granted, or mentioned and intended so to be, with the Ap- purtenances, unto the said Mortgagee his Heirs and As- signs, to and for the only proper use and behoof of the said Mortgagee his Heirs and Assigns forever. SUBJECT to the aforesaid building restrictions. And the said Mort- gagor for himself, his Heirs, Executors and Administrators, doth hereby covenant, promise and agree, to and with the said Mortgagee his Executors, Administrators and Assigns, that if the said Mortgagor or his Heirs, Executors or Ad- ministrators, shall neglect or refuse to keep up the aforesaid insurance, it shall be lawful for the said Mortgagee his 548 Conveyancing in Pennstlvanu. Executors, Administrators or Assigns, to insure the said building in a sum sufficient to secure payment of the said principal debt in case of fire, and all costs and expenses of effecting such insurance shall be treated as part of the principal debt in a suit upon this Mortgage. Provided Always, nevertheless, that if the said Mort- gagor or Ms Heirs, Executors, Administrators, or As- signs, shall and do well and truly pay, or cause to be paid, unto the said Mortagee his Executors, Administra- tors or Assigns, the aforesaid debt or principal sum of Twenty-five hundred dollars ($2,500) on the day and time hereinbefore mentioned and appointed for payment of the same, together with interest as aforesaid, and shall pro- duce to the said Mortgagee his Executors, Administrators or Assigns, on or before the first day of September of each and every year, receipts for all taxes and water rents of the current year assessed upon the premises mortgaged, without any fraud or further delay, and without any de- duction, defalcation or abatement to be made of anything, herein mentioned to be paid or done, and shall keep the building mentioned in this Mortgage insured as afore- said, then, and from thenceforth, as well this present Indenture, and the estate hereby granted, as the said recited Obligation shall cease, determine and become void, anything hereinbefore contained to the contrary thereof in anywise notwithstanding. And Provided, also, that it shall and may be lawful for the said Mortgagee his Executors, Administrators or Assigns, when and as soon as the principal debt or sum hereby secured shall become due and payable as aforesaid, or in case default shall be made for the space of thirty days in the payment of in- terest on the said principal sum after any half-yearly payment thereof shall fall due, or in case there shall be default in the production to the said Mortgagee his Ex- ecutors, Administrators or Assigns, on or before the first day of September of each and every year, of such receipts for taxes and water rents of the current year assessed Forms. 549 upon the premises mortgaged, or in the maintenance of the insurance as aforesaid, to sue out forthwith a writ or writs of Scire Fmias upon this Indenture of Mortgage, and to proceed thereon to judgment and execution for the recovery of the whole of said principal debt, and all in- terest due thereon, together with an attorney's commission for collection, viz. : five per cent., besides costs of suit, and all expenses of effecting such insurance, without fur- ther stay, any law, usage or custom to the contrary not- withstanding. In Witness Whereof, the said Mortgagor to these presents Hath hereunto set Ms hand and seal. Dated the day and year first above written. JOHlSf BORROWER (Seal) Sealed and Delivered in the presence of us JOHN DOE RICHARD ROE I certify that the within named mortgagee resides at No. 2816 A Street, Philadelphia. WILLIAM JONES Agent for Mortgagee (Acknowledgment. ) 55. SCI. FA. BOND AND WARRANT (Usual Form). (Bond.) KNOW ALL MEN BY THESE PRESENTS That I, JOHN BORROWER Of the City of Philadelphia, (here- inafter called the Obligor) am held and firmly bound unto WILLIAM LENDER, of the same City, (hereinafter called the Obligee) in the sum of Five thousand dollars ($5,000) lawful money of the United States of America, to be paid to the said Obligee his certain Attorney Ex- ecutors, Administrators or Assigns; to which payment well and truly to be made, / do bind and oblige myself, my Heirs, Executors and Administrators, firmly by these Presents. Sealed with my Seal. Dated the sixteenth day 550 CONVETANCINQ IN PENNSYLVANIA. of July in the year of our Lord one thousand nine hun- dred and twenty (1920). The Condition of this Obligation is Such, That if the above bounden Obligor or Ms Heirs, Executors or Administrators, or any of them, shall and do well and truly pay, or cause to be paid unto the above named Obligee his certain Attorney, Executors, Administrators or Assigns, the just sum of Twenty-live hundred dollars ($2,500) lawful money as aforesaid, at the expiration of three years from the date hereof, together with interest thereon payable half-yearly at the rate of six (6fo) per cent, per annum, without any fraud or further delay ; and shall produce to the said Obligee or his Executors, Ad- ministrators or Assigns, on or before the first day of September of each and every year, receipts for all taxes and water rents of the current year assessed upon the premises described in the accompanying mortgage; and also from time to time and at all times until payment of the said principal sum, keep the building mentioned in the said mortgage insured against loss or damage by fire for the benefit of the Mortgagee in the sum of Twenty-five hundred dollars ($2,500) then the above Obligation to be void, or else to be and remain in full force and virtue: Provided, however, and it is hereby expressly agreed, that, if at any time default shall be made in payment of interest as aforesaid, for the space of thirty days after any half- yearly payment thereof shall fall due, or in such produc- tion to the Obligee or 7m Executors, Administrators or Assigns, on or before the first day of September of each and every year, or such receipts for the taxes and water rents of the current year assessed upon the premises mort- gaged, or in the maintenance of such insurance, then and in such case the whole principal debt aforesaid, shall, at the option of the said Obligee 7m Executors, Adminis- trators or Assigns, become due and payable immediately, and payment of said principal debt and all interest thereon, may be enforced and recovered at once, anything herein contained to the contrary notwithstanding. Forms. 551 And Provided Further, however, and it is hereby ex- pressly agreed, that if at any time hereafter, by reason of any default in payment, either of said principal sum at maturity, or of said interest, or in production of said receipts for taxes and water rents within the time speci- fied, or in the maintenance of such insurance, a writ of Fieri Facias is properly issued upon the Judgment ob- tained upon this Obligation, or by virtue of the Warrant of Attorney hereto attached, or a writ of Scire Facias is properly issued upon the accompanying Indenture of Mort- gage, an attorney's commission for collection, viz. : five per cent., shall be payable, and shall be recovered in addi- tion to all principal and interest then due, besides costs of suit and all expenses of effecting such insurance. THIS BOND is secured hy \a first mortgage on No. 5216 Y Street, Philadelphia. JOHN BORROWER (Seal) Sealed and Delivered in the presence of us JOHN DOE WILLIAM ROE ($1.25 revenue stamp). (Warrant.) To Esquire, Attorney of the Court of Common Pleas, at Philadelphia in the County of Philadelphia in the State of Pennsylvania or to any other Attorney of the said Court, or any other Court there or elsewhere. Whereas, I, JOHN BORROWER of the City of Phila- delphia in and by a certain Obligation, bearing even date herewith, do stand bound unto WILLIAM LENDER, of the same City in the sum of Five thousand dollars ($5,000) lawful money of the United States of America, conditioned for the payment of the just sum of Twenty-five hundred dollars ($2,500) lawful money as aforesaid, at the ex- piration of three years from the date thereof, together with interest thereon payable half-yearly at the rate of 552 Conveyancing in Pennsylvania.. siw (6%) per cent, per annum, and for the production to the Obligee his Executors, Administrators or Assigns, on or before the p,rst day of September of each and every year, or receipts for all taxes and water rents of the current year assessed upon the premises described in the Mortgage accompanying said Obligation; and also from time to time and at all times until payment of said prin- cipal sum, to keep the building mentioned in the said Mortgage insured against loss or damage by fire for the benefit of the Mortgagee in the sum of Twenty --five hwn- dred dollars ($2,500). Provided, however, and it is hereby expressly agi'eed, that if at any time default shall be made in payment of interest as aforesaid, for the space of thirty days after any half-yearly payment thereof shall fall due, or in such production to the Obligee his Executors, Administrators or Assigns, on or before the first day of September of each and every year, of such receiptsi for the taxes and water rents of the current year assessed upon the prem- ises mortgaged, or in the maintenance of such insurance, then and in such case the whole principal debt aforesaid shall, at the option of said Obligee his Executors, Admin- istrators or Assigns, become due and payable immediately, and payment of said principal debt and all interest thereon, may be enforced and recovered at once, anything therein contained to the contrary notwithstanding. And Provided Further, however, and it is thereby ex- pressly agreed, that if at any time thereafter, by reason of any default in payment, either of said principal sum at maturity, or of said interest, or in production of said receipts for taxes and water rents within the time speci- fied, or in the maintenance of such insurance, a writ of Fieri Facias is properly issued upon the Judgment ob- tained upon said Obligation, or by virtue of this Warrant, or a writ of Scire Fncias is properly issued upon the ac- companying Indenture of Mortgage, an attorney's com- mission for collection, viz. : fiiie per cent, shall be payable, and shall be recovered in addition to all principal and Forms. 553 interest then due, besides costs of suit and all expenses of effecting such insurance. These are to desire and authorize you, or any of you, to appear for me or my Heirs, Executors or Administrators, in the said Court or elsewhere, in any appropriate action there or elsewhere brought or to be brought against me or my Heirs, Exec- utors or Administrators, at the suit of the said Obligee Ms Executors, Administrators or Assigns, on the said Obligation, as of any term or time past, present, or any other subsequent term or time there or elsewhere to be held, and confess Judgment thereupon against me or my Heirs, Executors or Administrators, for the sum of Five thousand dollars ($5,000) lawful money of the United States of America, debt, besides cost of suit and all ex- penses of insurance as aforesaid, and an attorney's com- mission of five per cent, in case payment has to be enforced by process of law as aforesaid, by Non sum informatus, Nhili didt, or otherwise, as to you shall seem meet: And for your or any of your so doing, this shall be your suf- ficient warrant. And / do hereby, for m,yself and my Heirs, Executors or Administrators, remise, release and forever quit claim unto the said Obligee his certain Attor- ney, Executors, Administrators and Assigns, all and all manner of error or errors, misprisions, misentries, defects and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or anywise touching or concerning the same. In Witness Whereof, / have hereunto set my hand and seal this sixteenth day of July in the year of our Lord one thousand nine hundred and twenty (1920). JOHN BORROWER (Seal) Sealed and Delivered in the presence of us JOHN DOE WILLIAM ROE 554 Conveyancing in Pennsylvanu. 56. FORM OF MORTGAGE BY OR TO A CORPORA- TION. A mortgage by or to a corporation is similar in form to the ordinary mortgage of individual to individual. In a mortgage to a corporation add the words "successors and assigns" to the name of the corporation instead of "heirs and assigns." Where the mortgage is made hy a corpora- tion use the corporation form of conclusion and acknowl- edgment. See form 21, page 460. 57. SECOND MORTGAGE CLAUSE. (See Section 127, page 124.) 58. INSTALLMENT SECOND MORTGAGE (SCI. Fa.). THIS INDENTURE Made the second day of May in the year of our Lord one thousand nine hundred and Twenty (1920) between WILLIAM BUYER and SUSAN BUYER of the City of Philadelphia, Husband and Wife, (hereinafter called the Mortgagors) of the one part, and JOHN SELLER of the same City (hereinafter called the Mortgagee), of the other part: Whereas, the said Mortgagors, in and by a certain Obligation or Writing obligatory under their hands and seals duly executed, bearing even date herewith, stand bound unto the said Mortgagee in the sum of Forty-six hundred dollars ($4,600) lawful money of the United States of America, conditioned for the payment of the just sum of Twenty-three hundred dollars ($2,300) law- ful money as aforesaid, within four years from the date thereof, in monthly installments of Fifty dollars each, together with interest thereon, payable monthly at the rate of sino (6%) per cent, per annum, on the net amount of principal due at any interest period, without any fraud or further delay, and for the production to the Mortgagee his Executors, Administrators or Assigns, on or before the first day of September of each and every year, of receipts for all taxes and water rents of the current year Forms. 555 assessed upon the mortgaged premises, and for the pro- duction to the said Mortgagee his Executors, Adminis- trators or Assigns, within ten days after the same shall become due and payable, receipts for aU interest on prior Mortgage, and the ground rent, if such there be, and other municipal claims and taxes secured upon the mortgaged premises, and also, from time to time, and at all times, until payment of said principal sum, for the keeping of the building mentioned in this Mortgage insured against loss or damage by fire for the benefit of the Mortgagee in the sum of Twenty-three hundred dollars ($2,300). Provided, However, and it is thereby expressly agreed, that, if at any time default shall be made in the payment of interest as afort^said or of any installment for the space of ten days after any monthly payment thereof shall fall due, or in such production to the Mortgagee his Executors, Administrators or Assigns, on or before the first day of September of each and every year, of such receipts for taxes and water rents of the current year assessed upon the premises mortgaged, or in such production to the said Mortgagee his Executors, Administrators or Assigns, within ten days after the same shall become due and pay- able, receipts for all interest on prior Mortgage, and the ground rent, if such there be, and other municipal claims and taxes secured upon the mortgaged premises, or in the maintenance of such insurance, then and in such case the whole principal debt aforesaid or the balance remain- ing due shall, at the option of the said Mortgagee his Executors, Administrators or Assigns, become due and payable immediately, and payment of said principal debt or the balance rem,aining due and all interest thereon, may be enforced and recovered at once, anything therein contained to the contrary notwithstanding. And Pro- vided Further, however, and it is thereby expressly agreed, that if at any time thereafter, by reason of any default in payment, either of said principal or any instal- ment thereof at maturity, or of said interest, or in the production of said receipts for taxes and water rents, or 556 Conveyancing in Pennstlvanu. interest on prior Mortgage, ground rent, if such there be, and other municipal claims and taxes, within the time specified, or in the maintenance of such insurance, a writ of Fieri Facias is properly issued upon the judgment ob- tained upon said Obligation, or by virtue of said Warrant of Attorney, or a writ of Scire Facias is issued upon this Indenture of Mortgage, an attorney's commission for col- lection, viz. : five per cent., shall be payable, and shall be recovered in addition to all principal and interest then due, besides costs of suit, and all expenses of effecting such in- surance, as in and by the said recited Obligation and the Condition thereof, relation being thereunto had, may more fully and at large appear. Now This Indenture Witnessbth, That the said Mort- gagors, as well for and in consideration of the aforesaid debt or principal sum of Twenty-three hundred dollars ($2,300) and for the better securing the payment of the same, with interest, unto the said Mortgagee his Executors, Administrators and Assigns, in discharge of the said re- cited Obligation, as for and in consideration of the further sum of One Dollar unto them in hand well and truly paid by the said Mortgagee at and before the sealing and de- livery hereof, the receipt whereof is hereby acknowledged. Have granted, bargained, sold, aliened, enfeoffed, released and confirmed and by these presents Do grant, bargain, sell, alien, enfeoff, release and confirm unto the said Mort- gagee, his Hevrs and Assigns, ALL THAT CERTAIN lot or piece of ground with the buildings and improvements thereon erected, No. 5826 X Street, SITUATE on the South side of X Street at the distance of Two hundred and eight feet Westward from the West side of Y Street in the Fiftieth Ward of the City of Phila- delphia; CONTAINING in front or breadth on the said X Street Sixteen feet and extending of that width in length or depth Southward, between parallel lines at right angles to said FoEMs. 557 X Street, 8eventy-five feet to a certain four feet wide alley leading Westward into Z Street. BEING the same premises which John Seller et ux., by Deed hearing even date herewith and intended to be forthwith recorded (part of the consideration therefor is intended to he secured hereby), granted and conveyed unto the said William Buyer find Susan Buyer o-s tenants by the entireties. SUBJECT to certain building restrictions; and further UNDER AND SUBJECT to the payment of a certain Mortgage Debt or Principal Sum of Twenty-five hundred dollars unth interest thereon. TOGETHER with the free and common use, right, liberty, and privilege of the aforesaid alley as and for a passage way and water course at all times hereafter for- ever. Together with all and singular the Buildings, Ways, Waters, Water Courses, Rights, Liberties, Privileges, Im- provements, Hereditaments and Appurtenances whatso- ever thereunto belonging, or in anywise appertaining; and the Reversions and Remainders, Rents, Issues and Profits thereof. To Have and to Hold the said lot or piece of ground with the Buildings, Hereditaments and Premises hereby granted, or mentioned and intended so to be, with the Appurtenances, unto the said Mortgagee his Heirs and Assigns, to and for the only proper use and behoof of the said Mortgagee his Heirs and Assigns forever. SUB- JECT to said restrictions; and further SUBJECT to the lien and p\ayment of the said first mortgage of Twenty- five hundred dollars with interest thereon. And the said Mortgagors for themselves, their Heirs, Executors and Administrators, do hereby covenant, promise and agree, to and with the said Mortgagee his Executors, Admin- istrators and Assigns, that if the said Mortgagors, their Heirs, Executors or Administrators, shall neglect or refuse to keep up the aforesaid insurance, it shall be lawful for the said Mortgagee his Executors, Administrators or 558 CONVETANCINQ IN PENNSYLVANIA. Assigns, to insure the said building in a sum sufficient to secure payment of the said principal debt in case of fire, and all costs and expenses of effecting such insurance shall be treated as part of the principal debt in a suit upon this Mortgage. Provided Always, nevertheless, that if the Mortgagors, their Heirs, Executors, Administrators or Assigns, shall and do well and truly pay, or cause to be paid, unto the said Mortgagee his Executors, Administrators or Assigns, the aforesaid debt or principal sum of Twenty-three hun- dred dollars ($2,300) on the days and times hereinbefore mentioned and appointed for payment of the same, to- gether with interest as aforesaid, and shall produce to the said Mortgagee his Executors, Administrators or As- signs, on or before the first day of September of each and every year, receipts for all taxes and water rents of the current year assessed upon the premises mortgaged, and shall produce to the said Mortgagee his Executors, Ad- ministrators or Assigns, within ten days after the same shall become due and payable, receipts for all interest on prior Mortgage, and the ground rent, if such there be, and other municipal claims and taxes secured upon the mortgaged premises, without any fraud or further delay, and without any deduction, defalcation or abatement to be made of anything, herein mentioned to be paid or done, and shall keep the building mentioned in this Mortgage insured as aforesaid, then, and from thenceforth, as well this present Indentuke, and the estate hereby granted, as the said recited Obligation shall cease, determine and become void, anything hereinbefore contained to the con- trary thereof in anywise notwithstanding. And Provided, Also, that it shall and may be lawful for the said Mortgagee his Executors, Administrators or Assigns, when and as soon as the principal debt or sum hereby secured or any inst^allment thereof, shall become due and payable as aforesaid, or in case default shall be made for the space of ten days in the payment of interest Conveyancing in Pennsylvania. 559 on the said principal sum after any monthly payment thereof shall fall due, or in case there shall be default in the production to the said Mortgagee Ms Executors, Ad- ministrators or Assigns, on or before the first day of Sep- tember of each and every year, of such receipts for taxes and water rents of the current year assessed upon the premises mortgaged, or in case there shall be default in the production to the said Mortgagee his Executors, Ad- ministrators or Assigns, within ten days after the same shall become due and payable, receipts for all interest on prior Mortgage, and the ground rent, if such there be, and other municipal claims and taxes secured upon the mortgaged premises, or in the maintenance of the insur- ance as aforesaid, to sue out forthwith a writ or writs of Scire Facias upon this Indenture of Mortgage, and to proceed thereon to judgment and execution for the re- covery of the whole of said principal debt, or the balance remaining due and all interest due thereon, together with an attorney's commission for collection, viz. : five per cent., besides costs of suit, and all expenses of effecting such insurance, without further stay, any law, usage or custom to the contrary notwithstanding. In Witness Whereof, the said Mortgagors to these presents Have hereunto set their hands and seals. Dated the day and year first above written. WILLIAM BUYER (Seal) SUSAN BUYER (Seal) Sealed and Delivered in the presence of us JOHN DOE RICHARD ROE I certify that the mthim, named Mortgagee resides at I4I6 West Street, Philadelphia, P|a. WILLIAM JONES Agent for Mortgagee ( Acknowledgment. ) 560 Conveyancing in Pennsylvania. 59. BOND AND WARRANT TO ACCOMPANY IN- STALLMENT SECOND MORTGAGE. (Bond.) KNOW ALL MEN BY THESE PEESENTS That we, WILLIAM BUYER and SUSAN BUYER of the City of Philadelphia, Husband and Wife (hereinafter called the Obligors), are held and firmly bound unto JOHN SELLER, of the same City (hereinafter called the Obligee) in the sum of Forty-six hundred dollars ($4,600) lawful money of the United States of America, to be paid to the said Obligee his certain Attorney, Executors, Adminis- trators or Assigns: to which payment well and truly to be made, we do bind and oblige ourselves, our Heirs, Ex- ecutors and Administrators, firmly by these Presents. Sealed with our Seals. Dated the second day of May in the year of our Lord one thousand nine hundred and twenty (1920). The Condition of this Obligation is Such, That if the above bounden Obligors, their Heirs, Executors or Administrators, or any of them, shall and do well and truly pay, or cause to be paid unto the above named Obligee his certain Attorney, Executors, Administrators or Assigns, the just sum of Twenty-three hundred dollars ($2,300) lawful money as aforesaid, within four years from the date hereof, in monthly installments of Fifty dollars each together with interest thereon payable monthly at the rate of six (6%) per cent, per annum, on the net amount of principal due at each interest period, without any fraud or further delay; and shall produce to the said Obligee or his Executors, Administrators or Assigns, on or before the first day of September of each and every year, receipts for all taxes and water rents of the current year assessed upon the premises described in the accompanying mortgage, and shall produce to the said Obligee, or his Executors, Administrators or Assigns, within ten days after the same shall become due and pay- able, receipts for all interest on prior Mortgage, and the Forms. 561 ground rent, if such there be, and other municipal claims and taxes secured upon the mortgaged premises; and also from time to time and at all times until payment of the said principal sum, keep the building mentioned in the said mortgage insured against loss or damage by fire for the benefit of the Mortgagee in the sum of Twenty- three hundred dollars ($2,300) then the above Obliga- tion to be void, or else to be and remain in full force and virtue: Provided, however, and it is hereby expressly agreed, that, if at any time default shall be made in pay- ment of interest as aforesaid, or of any installment for the space of ten days after any monthly payment thereof shall fall due, or in such production to the Obligee, or his Ex- ecutors, Administrators or Assigns, on or before the first day of September of each and every year, of such receipts for the taxes and water rents of the current year assessed upon the premises mortgaged, or in such production to the said Obligee, or his Executors, Administrators, or As- signs, within ten days after the same shall become due and payable, receipts for all interest on prior Mortgage, and the ground rent, if such there be, and other municipal claims and taxes secured upon the mortgaged premises, or in the maintenance of such insurance, then and in such case the whole principal debt aforesaid, shall, at the option of the said Obligee his Executors, Administrators or As- signs, become due and payable immediately, and payment of said principal debt or the balance remaining due and all interest thereon, may be enforced and recovered at once, anything herein contained to the contrary notwith- standing. And Provided Further, however, and it is hereby ex- pressly agreed, that if at any time hereafter, by reason of any default in payment, either of said principal sum or any installment thereof at maturity, or of said interest, or in production of said receipts for taxes and water rents, or interest on prior mortgage, ground rent, if such there be, and other municipal claims and taxes, within the time specified, or in the maintenance of such insurance, a writ 36 562 Conveyancing in Pennsylvania. of Fieri Facias is properly issued upon the Judgment ob- tained upon this Obligation, or by virtue of the Warrant of Attorney hereto attached, or a writ of Scire Facias is properly issued upon the accompanying Indenture of Mortgage, an attorney's commission for collection, viz. : five per cent., shall be payable, and shall be recovered in addition to all principal and interest then due, besides costs of suit and all expenses of effecting such insurance. THIS BOND secured by a second Mortgage on No. 5826 X Street, Philadelphia. WILLIAM BUYER (Seal) SUSAN BUYER (Seal) Sealed and Delivered in the presence of us JOHN DOE RICHARD ROE ( Warrant. ) To Esquire Attorney of the Court of Common Pleas, at Philadelphia in the County of Philadelphia in the State of Pennsylvania or to any other Attorney of the said Court, or any other Court there or elsewhere. Whereas, we, WILLIAM BUYER and SUSAN BUYER of the City of Philadelphia, Husband and Wife, in and by a certain Obligation, bearing even date herewith, do stand bound unto JOHN SELLER of the same City, in the sum of Forty-six hundred} dollars ($^,600) lawful money of the United States of America, conditioned for the payment of the just sum of Twenty-three hundred dollars ($2,300) lawful money as aforesaid, within four years from the date thereof, in monthly installments of Fifty dollars each, together with interest thereon payable monthly at the rate of six (6%) per cent, per annum, on the net amount of principal due at each interest period, and for the production to the Obligee Ms Executors, Ad- ministrators or Assigns, on or before the first day of Sep- tember of each and every year, of receipts for all taxes FoEMS. 563 and water rents of the current year assessed upon the premises described in the Mortgage accompanying said Obligation, and for the production to the Obligee, or his Executors, Administrators or Assigns, within ten days after the same shall become due and payable, receipts for all interest on prior Mortgage, and the ground rent, if such there be, and other municipal claims and taxes secured upon the mortgaged premises ; and also from time to time and at all times until payment of said principal sum, to keep the building mentioned in the said Mortgage insured against loss or damage by fire for the benefit of the Mortgagee in the sum of Twenty-three hundred dollars ($2,300). Provided, however, and it is thereby expressly agreed, that if at any time default shall be made in payment of interest as aforesaid, or of any installments for the space of ten days after any monthly payment thereof shall fall due, or in such production to the Obligee his Executors, Ad- ministrators or Assigns, on or before the first day of Sep- tember of each and every year, of such receipts for the taxes and water rents of the current year assessed upon the premises mortgaged, or in such production to the said Obligee, or his Executors, Administrators or Assigns, within ten days after the same shall become due and pay- able, receipts for all interest on prior Mortgage, and the ground rent, if such there be, and other municipal claims and taxes secured upon the mortgaged premises, or in the maintenance of such insurance, then and in such case the whole principal debt aforesaid or the balance remaining due shall, at the option of said Obligee his Executors, Administrators or Assigns, become due and payable im- mediately, and payment of said principal debt or the balance remaining due and all interest thereon, may be enforced and recovered at once, anything therein contained to the contrary notwithstanding. And Provided Further, however, and it is thereby ex- pressly agreed, that if at any time thereafter, by reason 564 Conveyancing in Pennstlvania. of any default in payment, either of said principal sum or any instalment thereof at maturity, or of said interest, or in production of said receipts for taxes and water rents, interest on prior mortgage, ground rent, if such there be, and other municipal claims and taxes, within the time specified, or in the maintenance of such insurance, a writ of Fieri Facias is properly issued upon the Judgment ob- tained upon said Obligation, or by virtue of this Warrant, or a writ of Scire Facias is properly issued upon the ac- companying Indenture of Mortgage, an attorney's commis- sion for collection, viz. : fivd^ per cent, shall be payable, and shall be recovered in addition to all principal and interest then due, besides costs of suit and! all expenses of effecting such insurance. These are to desire and authorize you, or any of you, to appear for us or our Heirs, Executors or Administrators, in the said Court or else- where, in any appropriate action there or elsewhere brought or to be brought against us or our Heirs, Exec- utors or Administrators, at the suit of the said Obligee his Executors, Administrators or Assigns, on the said Obligation, as of any term or time past, present, or any other subsequent term or time there or elsewhere to be held, and confess Judgment thereupon against us or our Heirs, Executors or Administrators, for the sum of Forty- six hundred dollars ($4,600) lawful money of the United States of America, debt, besides costs of suit and all ex- penses of insurance as aforesaid, and an attorney's com- mission of five per cent, in case payment has to be enforced by process of law as aforesaid, by Non sum informatus, Nihil dicit, or otherwise, as to you shall seem meet : And for your or any or your so doing this shall be your sufftcient warrant. And we do hereby, for ourselves and our Heirs, Executors or Administrators, remise, release, and forever quit claim unto the said Obligee his certain Attorney, Ex- ecutors, Administrators and Assigns, all and all manner of error or errors, misprisions, misentries, defects and im- perfections whatever, in the entering of the said judgment, Forms. 565 or any process or proceedings thereon or thereto, or any- wise touching or concerning the same. In Witness Whereof, we have hereunto set our hands and seals the Second day of May in the year of our Lord one thousand nine hundred and Twenty (1920). WILLIAM BUYER (Seal) SU8AN BUYER (Seal), Sealed and Delivered in the presence of us JOHN DOE RICHARD ROE 60. BUILDING AND LOAN ASSOCIATION SECOND MORTGAGE WITH PREMIUM. THIS INDENTURE, Made the second day of May in thv. year one thousand nine hundred and twenty (1920) BETWEEN WILLIAM BUYER and SUSAN BUYER of the City of Philadelphia, Husband and Wife, of the one part (hereinafter called the Mortgagors), and ANY BUILD- ING AND LOAN ASSOCIATION of the other part (here- inafter called the Mortgagee) : Wheebas, the said Mortgagors, in and by a certain Obligation or Writing, obligatory under their hands and seals duly executed, bearing even date herewith, stand bound unto the said Mortgagee in the sum of Two thou- sand ($2,000) Dollars, lawful money of the United States of America, conditioned to keep and maintain at all times, until the full discharge of the| said Obligation, a policy or policies of Fire insurance in good and approved com- pany or companies, duly assigned as collateral security to the Mortgagee or its Successors or Assigns, to an amount not less than One thousand ($1,000) Dollars, upon the buildings on the premises hereinafter described, and con- ditioned for the payment of the just sum of One thou- sand ($1,000) Dollars, at any time within One year from the date thereof, together with interest thereon, payable monthly, at the rate of Six per cent, per annum, and to- 566 Conveyancing in Pennsylvania. gether with all fines imposed by the Constitution and By- Laws of the aforesaid Association, and a monthly premium of One dollar fifty cents ($1.50) for the same, in like money, payable monthly, at the regular meeting of each and every month thereafter, and should also well and truly pay, or cause to be paid unto the said Mortgagee, its Suc- cessors or Assigns, the sum of Five ($5.00) Dollars, at the said regular meeting of each and every month thereafter, as and for the monthly contribution on five Shares of the Capital Stock of the said Mortgagee, now owned by the said Mortgagors without any fraud or further delay; and should also deliver to the said Mortgagee, its Successors or Assigns, on or before the First day of September of each and every year, receipts for all water rent and taxes of the current years assessed upon the hereinafter de- scribed premises. Provided, However, and it is thereby expressly agreed, that if at any time default should be made in the payment of the said principal money when due, or of the said interest, or of the said fines, or of the said monthly premium, or the monthly contribution on said Stock, for the space of three months after any pay- ment thereof should fall due, or in the prompt and punc- tual maintenance of said fire insurance so assigned as aforesaid, or in such delivery to the said Mortgagee, its Successors or Assigns, on or before the First day of Sep- tember of each and every year, of such receipts for such water rent and taxes of the current year upon the prem- ises mortgaged, or if the said Mortgagors should not well and truly pay, or cause to be paid, the interest upon the first mortgage, and the ground rent, if such there be, the water rent and other municipal claims and taxes, on the hereinafter described premises, when the same should be- come due and payable, and produce receipts therefor to the said Mortgagee within ten days from the time when the same shall grow due and become payable, then and in such case the whole principal debt aforesaid should, at the option of the said Mortgagee, its Successors and FoBMs. 567 Assigns, immediately thereupon become due, payable and recoverable, and payment of said principal sum, and all interest, and all fines thereon, and monthly premiums due, as well as any contribution on said Shares of Stock then due, may be enforced and recovered at once, anything thereinbefore contained to the contrary thereof notwith- standing. And it was therein further agreed, that if the same or any part thereof has to be collected by proceed- ings at law, then an attorney's collection fee of Five per cent, should be added to the amount so collected as a part of the costs of such proceedings. And the said Mortgagors for themselves, their Heirs, Executors, Administrators and Assigns, thereby expressly waived and relinquished the right of inquisition on any real estate that may be levied upon to collect that obligation, and did voluntarily con- demn the same, and authorized the Prothonotary to enter upon the Fieri Facias their said voluntary condemnation, and further agreed that the said real estate might be sold upon a Fieri Facias ; and also all benefit that might accrue to any of them by virtue of any and every law made or to be made exempting the premises hereinafter described, or of any other premises or property whatever, from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the payment of the moneys thereby secured, or any part thereof, and the cost of such action and execution, as in and by the said above recited Obligation and the Conditions thereof, relation being there- unto had may more fully and at large appear. Now This Indenture Witnesseth, That the said Mort- gagors as well for and in consideration of the premises, as of the aforesaid debt or principal sum of One thousand ($1,000) Dollars, and for the better securing the payment of the same, with interest, together with all fines, and together with the monthly premium aforesaid, and to- gether with the monthly contribution of Fvve ($5.00) Dollars, on the said Shares of Stock owned by the said Mortgagors unto the said Mortgagee, its Successors and 568 CONTBTANCING IN PENNSYLVANIA. Assigns, in discharge of the said above recited Obligation and of the further sum of One Dollar, lawful money unto ihem in hand well and truly paid by the said Mortgagee, at the time of the execution hereof, the receipt whereof is hereby acknowledged, Have granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by these presents Do grant, bargain, sell, alien, enfeoff, release and confirm unto the said Mortgagee, its Successors and Assigns, ALL THAT CERTAIN lot or piece of ground with the buildings and improvements thereon erected, No. 5826 X Btreet, SITUATE on the South side of X Street at the distance of Two hundred and eight feet Westward from the West side of Y Street, in the Fiftieth Ward of the City of Phila- delphia; CONTAINING in front or breadth on the iaid X Street Sixteen feet and extending of that width in length or depth Southward, between parallel lines at right angles to the said X Street, Seventy-five feet to a certain four feet wide alley leading Westward into Z Street. BEING the same premises which John Seller et ux., by Deed bearing even date herewith and intended to) be forthwith recorded, granted and conveyed unto the said William Buyer and Susan Buyer as tenants by the entire- ties, SUBJECT to certain building restrictions. AND it is hereby expressly understood and agreed between the parties hereto that this is not a purchase money mortgage but that it is subject both in lien and payment to a cer- tain other mortgage given by these mortgagors to Wil- liam Lender to secure the payment of Twenty-five hun- dred dollars with interest thereon, dated May 2, 1920, and intended to be forthvyith recorded; and that the lien of the said other mortgage shall not be affected or impaired by a judicial sale under a judgment obtained upon this present Indenture or upon the Bond secured hereby; but any such sfile shall be expressly advertised and made sub- ject to the lien of the said first mortgage. FoKMs. 569 SUBJECT to certain tuilding restrictions; and further HINDER AND SUBJECT to the payment of a certain Mortgage Debt or Principal Sum of Twenty-five hundred dollars with interest thereon. TOGETHER with the free and common use, right, liberty and privilege of the aforesaid alley as and for a passage way and watercourse at all times hereafter for- ever. AND Together with all and singular the Buildings, Streets, Alleys, Passages, Ways, Waters, Water Courses, Eights, Liberties, Privileges, Improvements, Hereditaments and Appurtenances whatsoever thereunto belonging, or in any wise appertaining, and the Keversions and Remainders, Eents, Issues and Profits thereof. To Have and to Hold the said lot or piece of ground with the buildings. Hereditaments and Premises hereby granted, or mentioned and intended so to be, with the Appurtenances, unto the said Mortgagee, its Successors and Assigns, to and for the only proper use and behoof of the said Mortgagee, its Successors and Assigns, forever. SUBJECT to the aforesaid building restrictions; and fur- ther SUBJECT to the lien and payment of the aforesaid first mortgage of twenty-five hundred dollars with interest thereon. Provided, Always, nevertheless, that if the said Mort- gagors, or their Heirs, Executors, Administrators or As- signs, do and shall well and truly pay, or cause to be paid, unto the said Mortgagee, its Successors or Assigns, the aforesaid debt or principal sum of One thousand ($1,000) Dollars, together with interest thereon, and to- gether with the fines and the monthly premium as afore- said, on the days and times hereinbefore mentioned and appointed for payment of the same; and shall also well and truly pay or cause to be paid, to the said Mortgagee, its Successors or Assigns, the above mentioned sum of Five ($5.00) Dollars, at the regular meeting of every month, as and for the contribution on the said Shares of 570 Conveyancing in Pennsylvanu. Stock as above mentioned; and shall, on or before the First day of September of each and every year, deliver to the said Mortgagee, its Successors or Assigns receipts for all water rent and taxes of the current year assessed upon the mortgaged premises, and shall keep and maintain said fire insurance so assigned as aforesaid, according to the condition of the said above recited Obligation, without any fraud or further delay, and without any deduction, defalcation or abatement to be made of anything for or in respect of any taxes, charges or assessments whatso- ever, that then, and from thenceforth, as well this present Indenture, and the Estate hereby granted, as the said above recited Obligation shall cease, determine and be- come void, anything hereinbefore contained to the contrary thereof, in any wise notwithstanding. Peovided, Pue- THBE, in case of default in the payment of the principal, interest or fines and the monthly premium as aforesaid, or any part thereof, or in default of the payment of the monthly contribution on the said Shares of Stock, as above particularly recited and mentioned, or any part thereof, for the space of three months after any payment thereof shall fall due, or in the prompt and punctual maintenance of said fire insurance so assigned as aforesaid, or in such delivery to the said Mortgagee, its Successors or Assigns, on or before the First day of September of each and every year, of such receipts for such water rent and taxes of the current year assessed upon the mortgaged premises, or if the said Mortgagors shall not well and truly pay, or cause to be paid, the interest upon the first mortgage, and the ground rent, if such there be, the water rent and other municipal claims and taxes, on the above described prem- ises, when the same shall become due and payable, and produce receipts therefor to the said Mortgagee within ten days from the time when the same shall become due and payable, then and in such case the whole principal debt aforesaid shall immediately thereupon become due, payable and recoverable; and it shall and may be lawful FoEMs. 571 for the said Mortgagee, its Successors or Assigns, to sue out forthwith a writ of Scire Facias upon this present In- denture of Mortgage, and to proceed at once thereon to recover the principal money hereby secured, and all in- terest, and all fines, and all monthly premiums thereon, as well as any contribution on said Shares of Stock then due, according to law, without further stay, any law or usage to the contrary notwithstanding. And it is hereby agreed, that in case the same or any part thereof has to be collected by process of law, that an attorney's fee of Five per cent, shall be added to and collected as a part of the costs of such proceedings. And the said Mortgagors for themselves and their Heirs, Executors, Administrators and Assigns, hereby waive and relinquish all benefit that may accrue to any of them by virtue of any and every law made or to be made to exempt the said above described premises or any other property whatever, either real or personal, from levy and sale under execution, or any part of the proceedings arising from the sale thereof, from the payment of the moneys hereby secured, or any part thereof. In Witness Whereof, the said parties to these presents have hereunto set their hands and seals. Dated the day and year first above written. WILLIAM BUYER (Seal) SUSAN BUYER (Seal) 'Sealed and Delivered in the presence of us : JOHN DOE RICHARD ROE ( Acknowledgment. ) 61. BUILDING AND LOAN ASSOCIATION BOND AND WARRANT SECURED BY SECOND MORTGAGE. (Bond.) KNOW ALL MEN BY THESE PRESENTS That w, WILLIAM BUYER and SUSAN BUYER of the City of Philadelphia, Husiand crnd Wife, (hereinafter called the 572 CoNVETANcma in Pennsylvania. Obligors, are held and firmly bound unto ANY BUILDING AND LOAN ASSOCIATION (hereinafter called the Obligee), in the sum of Two thousand, ($2,000) Dollars, lawful money of the United States of America, to be paid to the said Obligee, its certain Attorney, Successors or As- signs : To which payment, well and truly to be made, we do bind ourselves and our Heirs, Executors and Adminis- trators, and every of them, firmly by these Presents. Sealed with our Seals. Dated the second day of May in the year one thousand nine hundred and twenty (1920). The Condition of This Obligation Is Such, That if the above-bounden Obligors or their Heirs, Executors and Ad- ministrators, or any of them, shall and do well and truly keep and maintain at all times, until the full discharge of this Obligation, a policy or policies of Fire insurance in good and approved company or companies, duly assigned as collateral security to the Obligee or its Successors or Assigns, to an amount not less than One thousand ($1,000) Dollars, upon the buildings on the premises mortgaged by the Mortgage securing this Obligation, and shall and do well and truly pay, or cause to be paid unto the above- named Obligee, its certain Attorney, Successors or Assigns, the just sum of One thousand ($1,000) Dollars, as afore- said, at any time within One year from date hereof, to- gether with interest thereon, payable monthly, at the rate of Six per cent, per annum, and together with all fines im- posed by the Constitution and By-Laws of the aforesaid Association, and a monthly premium; of One dollar and fifty cents ($1.50) for the same, in like money, payable monthly, at the regular meeting of each and every month hereafter, and shall also well and truly pay, or cause to be paid unto the said Obligee its Successors or Assigns, the sum of Five ($5.00) Dollars, at the said regular meeting of each and every month hereafter, as and for the monthly con- tribution on five Shares of the Capital Stock of the said Obligee, now owned by the said Obligors, without fraud or further delay; and shall also deliver to the said Obligee, Forms. 573 its Successors or Assigns, on or before the First day of September of each and every year, receipts for all water rent and taxes of the current year assessed upon the prem- ises described in the accompanying Indenture of Mortgage, then the above Obligation to be| void, or else to be and remain in full force and virtue. Provided, however, and it is hereby expressly agreed, that if at any time default shall be made in the payment of the said principal money when due, or of the said interest, or of the said fines, or of the said monthly premium, or the monthly contribution on said Stock, for the space of three months after any payment thereof shall fall due, or in the prompt and punctual maintenance of said fire insurance so assigned as aforesaid, or in such delivery to the said Obligee, its Successors or Assigns, on or before the First day of September of each and every year, of such receipts for such water rent and taxes of the current year upon the premises mortgaged ; or if the said Obligors shall not well and truly pay, or cause to be paid, the interest upon the first mortgage, and the ground rent, if such there be, the water rent and other municipal claims and taxes, on the premises particularly described in the Mortgage accom- panying this Obligation, when the same shall become due and payable, and produce receipts therefor to the said Obligee within ten days from the time when the same shall become due and payable, then and in such case the whole principal debt aforesaid, at the option of the said Obligee, its Successors and Assigns, shall immediately thereupon be- come due, payable and recoverable, and payment of said principal sum, and all interest, and all fines, and all monthly premiums due thereon, as well as any contribution on said Shares of Stock, then due, may be enforced and recovered at once, anything hereinbefore contained to the contrary thereof notwithstanding. And it is hereby further agreed, that if the same, or any part thereof, has to be collected by process at law, that an attorney's fee of Five per cent, shall be added to and collected as a part of the costs of such pro- 574 Conveyancing in Pennsylvania. ceedings. And it is hereby certified and declared that the premium above stated is hereby ratified. And the said Obligors for themselves and their respective Heirs, Execu- tors, Administrators and Assigns, hereby expressly waive and relinquish the right of inquisition on any real estate that may be levied upon to collect this obligation, and do hereby voluntarily condemn the same, and authorize the Prothonotary to enter upon the Fieri Facias their said voluntary condemnation, and further agree that the said real estate may be sold on a Fieri Facias; and also, all benefit that may accrue to any of them by virtue of any and every law, made or to be made, to exempt the premises described in the Indenture of Mortgage herewith given, or of any other premises or property whatever, either real or personal, from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the pay- ment of the moneys hereby secured, or any part thereof, and the cost of such action and execution. This Bond is secured by a second Mortgage on 5826 X Street, Philadelphia. WILLIAM BUYER (Seal) SUSAN BUYER (Seal) Sealed and Delivered in the presence of us : JOHN DOE RICHARD ROE (50c revenue stamp.) (Warrant) To Esq., Attorney of the Court of Common Pleas, at Philadelphia, in the county of Philadelphia, in the State of Pennsylvania, or to any other Attorney, or to the Prothonotary of the said Court, or of any other Court, there or elsewhere. Whereas, we, WILLIAM BUYER and SUSAN BUYER of the City of Philadelphia, Husband and Wife, (herein- after called the Obligors), in and by a certain Obligation, Forms. 575 bearing even date herewith, do stand bound unto ANY BUILDING AND LOAN ASSOCIATION (hereinafter conditioned to keep and maintain at all times, until the full discharge of this Obligation, a policy or policies of Fire insurance in good and approved company or com- panies, duly assigned as collateral to the Obligee or its Suc- cessors or Assigns, to an amount not less than One thou- Sfind ($1,000) Dollars, upon the buildings on the premises mortgaged by the Mortgage securing this Obligation, and conditioned for the payment of the just sum of One thou- sand ($1,000) Dollars, as aforesaid, at any time within One year from the date thereof, together with interest thereon, payable monthly, at the rate of Six per cent, per annum, and together with all fines imposed by the Constitution and By-Laws of the aforesaid Association, and a monthly pre- mium of One dollar -fifty cents ($1.50) for the same, in like money, payable monthly, at the regular meeting of each and every month thereafter, and should also well and truly pay, or cause to be paid unto the said Obligee, its Succes- sors or Assigns, the sum of Five ($5.00) Dollars, at the said regular meeting of each and every month thereafter, as and for the monthly contribution on five Shares of the Capital Stock of the said Obligee, now owned by the said Obligors without any fraud or further delay, and should also deliver to the said Obligee, its Successors or Assigns, on or before the First day of September of each and every year, receipts for all water rent and taxes of the current year assessed upon the premises described in the Mortgage accompany- ing said Obligation. Provided, however, and it is thereby expressly agreed, that if at any time default should be made in the payment of the said principal money when due, or of the said inter- est, or if the said fines, or of the said monthly premium, or the monthly contribution on said Stock for the space of three months after any payment thereof should fall due, or in the keeping and maintaining at all times fire insur- ance so assigned as aforesaid, or in the delivery to the 576 Conveyancing in Pennsylvania. said Obligee, its Successors or Assigns, on or before the First day of September of each and every year, of such receipts for such water rent and taxes of the current year assessed upon the mortgaged premises, or if the said Obligors shall not well and truly pay, or cause to be paid, the interest upon the first mortgage and the ground rent, if such there be, the water rent and other municipal claims and taxes, on the premises particularly described in the Mortgage accompanying this Obligation, when the same shall become due and payable, and produce receipts there- for to the said Obligee within ten days from the time when the same shall become due and payable, then and in such case the whole principal debt aforesaid should, at the option of the said Obligee, its Successors and Assigns, im- mediately thereupon become due, payable and recoverable, and payment of said principal sum, and all interest, and all fines, and all monthly premiums due thereon, as well as any contribution on said Shares of Stock, then due, might be enforced and recovered at once, anything thereinbefore contained to the contrary thereof notwithstanding. And it is thereby further agreed, that if the same, or any part thereof, has to be collected by process of law, then an at- torney's fee of Five per cent, should be added to the amount so collected, as a part of the costs of such proceedings. And the said Obligors for themselves and their Heirs, Executors, Administrators and Assigns, thereby expressly waived and relinquished the right of inquisition on any real estate that may be levied upon to collect that obli- gation, and did voluntarily condemn the same, and author- ize the Prothonotary to enter upon the Fieri Facias their said voluntary condemnation and further agreed that said real estate may be sold on a Fieri Facias; and also all benefit that might accrue to any of them by virtue of any and every law, made or to be made, to exempt the premises described in the Indenture of Mortgage therewith given, or of any other premises or property whatever, either real or personal, from levy and sale under execution, or any part FoBMS. 577 of the proceeds arising from the sale thereof, from the pay- ment of the moneys thereby secured, or any part thereof : These are to desire and authorize you, or any of you, to appear for us or our respective Heirs, Executors or Admin- istrators, in the said Court or elsewhere, in an appropriate form of action, there or elsewhere brought or to be brought against us or our respective Heirs, Executors or Adminis- trators, at the suit of the said Obligee, its Successors or Assigns, on the said Obligation, as of any Term or Time past, present, or any other subsequent Term or Time there or elsewhere to be held, and confess or enter Judgment thereupon against us or our respective Heirs, Executors or Administrators, for the sum of Two thouscmd ($2,000) Dollars, lawful money of the United States of America, Debt, besides costs of suit, by Non sum informatus, Nihil dicit, or otherwise, as to you shall seem meet : and for your or any of your so doing this shall be your sufficient warrant. And we do hereby, for ourselves and our respec- tive Heirs, Executors and Administrators, remise, release and forever quit claim unto the said Obligee, its certain Attorney, Successors and Assigns, all and all manner of Error and Errors, Misprisions, Misentries, Defects and Im- perfections whatever, in the entering of the said Judgment, or any Process or Proceedings thereon or thereto, or any- wise touching or concerning the same. In Witness Whereof, we have hereunto set our hands and seals the second day of May in the year one thousand nine hundred and twenty (1920). WILLIAM BUYER (Seal) SUSAN BUYER (Seal) Sealed and Delivered in the presence of us: JOHN DOE RICHARD ROE 37 578 Conveyancing in Pennsylvania. 62. LEASEHOLD MORTGAGE. This Indenture, made the tenth day of June, A. D. 1922, between Adam Jones and Eknest Bkown of the first part, who by bond of this date stand indebted to Chaeles Dob of the second part, in the sum of |1,000, conditioned for the payment of |500, as follows : WITNESSETH^ That in consideration of the debt above mentioned, and to better secure the payment thereof, with interest, &c., said parties of the first part do hereby give, grant, sell and convey to said party of the second part his heirs and assigns, all that certain leasehold estate, situ- ated in Rockill Township, Bucks County, and State of Pennsylvania, beng part of the Smith farm, and bounded and described as follows : (here set out the description of leased premises). The original lease whereof bearing date the 30 day of April, A. D. 1902, between Robert Smith and Adam Jones and Ernest Brovp^n, is recorded in the recorder's office of said county of Bucks, in Deed Book! No. 301, page 172. (Note. — If the Lease has not yet been recorded, insert after names of parties "is intended to be recorded herewith," in- stead of foregoing clause) ; together with all machinery and fixtures thereon, Steam boiler, Corliss engine. Water tank, 300 feet of tubing, 50 feet of casing, 12 feet of sucker rods, enginehouse, derrick and all tools thereon, and all and singular the appurtenances thereto belonging. To have and to hold the said premises, with the appurtenances thereto, unto said party of the second part, his heirs and assigns forever. Provided, that if the parties of the first part, their heirs, executors, administrators or assigns, pay to the party of the second part, his heirs, executors, ad- ministrators or assigns, said sum of |500, according to the condition of the above in part recited bond, then these pres- ents and the estate hereby granted shall cease and be ut- terly void. Provided further, in case of default of any payment, thereupon it shall be lawful, for the said mortgagee or his FoEMs. 579 legal representatives, to sue out forthwith a writ or writs of scire facias (any law, usage or practice to the contrary notwithstanding; upon which scire facias, when so sued out, either before or after service of same, judgment may be confessed, with or without declaration filed, by any at- torney of any court of record, in favor of said mortgagee, his heirs or assigns, and against the said Mortgagors, ) for the whole amount of the debt and interest thereby secured which then remains unpaid, to which may be added five per cent, on the whole sum as attorney's fees for collecting the same, upon which judgment execution may be issued for any payment or payments and interest then due. And thereafter execution may be issued upon said judgment as often as default shall be made in the payment of debt on interest, or both. Also the parties of the first part waive all equity of redemption under any act of assembly now in force, and all exemption laws of this Commonwealth. In Witness Whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above-written. Signed, sealed and deliv- j ered in the presence of us, 'l ^dam Jones. ( Seal. ) Andrew Jackson, f ^knest Brown. ( Seal. ) Henry Haas. J ( Acknowledgment. ) * *The original lease as well as this mortgage must be recorded in the recorder of deeds' office of the county wherein the land lies. Be care- ful to see that the lease is acknowledged else it cannot be recorded. The lease must be recorded either before or at the same time as the mortgage. The mortgage should be recorded immediately after exe- cution. 63. RECITAL OF TITLE BY DEED. Kecitals by deed are placed immediately after the de- scription (see Section 78). Where however the recital is very long it is customary to place it after the names of the parties immediately before the granting clause as in deed forms 30 and 31, pages 476 and 481. 580 Conveyancing in Pennstlvania. 64. ANOTHER FORM FOR RECITAL OF TITLE BY DEED. Being the same (or, part of the same) premises which Edward Fell, and Mary, his wife, indenture, bearing date the Fifth day of July, A. D. one thousand nine hundred and ten, (recorded in the office for the Recording of Deeds, in and for the County of Philadelphia, in Deed Book, No. — , page — ), did grant and confirm unto the said Adam Brown, party hereto, and to his heirs and assigns forever, as in and by the said in part recited indenture, relation being thereunto had, more fully and at large appears. 65. RECITAL OF TITLE BY PATENT. Whereas, The Commonwealth of Pennsylvania, by patent or grant under the great seal, bearing date the Fifth day of January, A. D. one thousand eight hundred and nine, for the consideration therein mentioned, did grant or con- firm unto Adam Brown, and to his heirs and assigns, a certain tract of land, situate in the Township of , in the County of aforesaid, by marks and bounds in said patent particularly described, containing acres and the allowance of six per cent, for roads, &c., with the appurtenances : To hold the said to him, his heirs and assigns forever, as in and by the said recited patent (re- corded in the Land Office, in Patent Book B, page ), relation being thereunto had, more fully and at large ap- pears. 66. RECITAL OF TITLE BY WILL. See form of Recital in Devisees deed, section 282, page 288. This recital is also usually placed immediately after the description, though often when such recital is lengthy it is placed immediately after the names of parties, see deed form 31, page 481. Forms. 581 67. RECITAL OF TITLE BY DESCENT. See form of Kecital of one inheriting by descent, section 260, page 265. See remarks in preceding paragraph as to the position of this recital. 68. ANOTHER FORM OF RECITAL OF TITLE BY DESCENT. Whereas by force and virtue of said recited indenture,or of some other good conveyances or assurances in the law duly had and executed, the said Adam Brovpn became, in his lifetime, lawfully seised in his demesne, as of fee, of and in the said tract of land, with the appurtenances, and being so thereof seised, died intestate, leaving issue four chil- dren, to wit, Henry, John, Maria (the wife of J. K.), and Andrbw_, to whom the same, by the laws of Pennsylvania relating to intestates, did descend and come. 69. RECITAL OF TITLE BY PATENT, DESCENT AND DEED. Being the same tract of land which the Commonwealth of Pennsylvania, by patent, bearing date the First day of June, A. D. one thousand nine hundred and three (re- corded in the Land Office for the State of Pennsylvania, in Patent Book C, page ) , for the consideration therein mentioned, did grant and confirm unto B. W. in fee, who being thereof lawfully seised, died intestate, leaving issue M. W. and D, intermarried with R. D., to whom the same, by the laws of Pennsylvania, did descend and come. And the said M. W. and R. D. and D., his wife, by their joint indenture, bearing date the day of , A. D. One thousand nine hundred and , for the con- sideration therein mentioned, did grant and confirm the same unto the said Adam Brown, (party hereto) in fee, as in and by the said indenture (recorded in the office for recording of deeds at , in Book B, page ), re- lation being thereunto had, appears. 582 Conveyancing in Pennsylvania. 70. RECITAL OF TITLE BY ADVERSE POSSESSION. Being the same premises which Jonathan Wall by Inden- ture bearing date the First day of January, 1871, and re- corded at Philadelphia in deed book T. M. No. 16, page 321, &c., granted and conveyed unto Andrew Smith in fee. And Thomas Bayard on to wit, June 17, A. D. 1900, entered into possession and by virtue thereof held actual adverse, con- tinued, visible notorious, distinct and hostile possession thereof unto the present time, being a period of more than twenty-one years, so that a perfect and indefeasible title in fee to said premises became vested in the said Thomas Bayard, by virtue of the statute of limitations of the Com- monwealth of Pennsylvania. 71. RECITAL OF TITLE BY VOLUNTARY DEED OF PARTITION. And Whereas, by indenture of partition between the said Adam Brown of the one part, and the said George Herman of the other part, bearing date the Fifth day of September, A. D. one thousand nine hundred and two, par- tition of the said messuage, &c., with the appurtenances, was made between the said parties, wherein and whereby the piece or parcel thereof, bounded and limited as follows, to wit: Beginning, &c., containing acres and allow- ances aforesaid, was released and confirmed to the said George Herman, his heirs and assigns: To hold to him, the said George Herman, his heirs and assigns, in sever- alty forever, as in and by the said indenture of partition (recording in the office for recording of deeds at in Book E, page ) , relation being thereunto had, appears. 72. RECITAL OF TITLE BY ORDER OF ORPHANS' COURT IN PARTITION. Being the same premises of which Adam Brown, died in- testate, and upon which, on due application to the Orphans' Court for the County of of April Term, 1902, No. 94, an order was granted by the said court, whereupon Forms. 583 the said premises were duly valued and appraised, and by the said court adjudged and confirmed on the day of , A. D. one thousand nine hundred and , unto the said G. B., eldest son of the said deceased (or, as the case may be) : To hold the same to the said G. B., and to his heirs and assigns forever, as in and by the records and proceedings of the said court, relation being thereunto had, appears. 73. RECITAL OF TITLE BY WRIT OF PARTITION. And Whereas by virtue of a certain writ de partitione facienda, issuing out of the Court of Common Pleas for the County of aforesaid, of September Term, 1902, No. 35, bearing date the day of , A. D. one thousand nine hundred and , for partition of the said tract of land, with the appurtenances, there was duly alloted and assigned unto the said George Herman, a cer- tain piece or parcel of land (part of the said tract) bounded and described as follows, viz., beginning at, &c., containing acres and allowance aforesaid, wth the appurte- nances : To hold the same to him, the said George Her- man, his heirs and assigns, in severalty forever, as by the said writ de partitione facienda, and return of the sheriff thereupon duly made, and remaining amongst the records and proceedings of said court, recourse being thereunto had, appears. 74. RECITAL OF TITLE BY ATTORNEY IN FACT. And whereas the said Charles Ryan, by his attorney Joseph Rogers, ( by letter of attorney, under the hand and seal of the said Charles Ryan, bearing date the Fifth day of January, A. D. one thousand nine hundred and one, re- corded in the office for recording deeds for the City and County of Philadelphia, in Letter of Attorney Book No. , Page ) , did, by indenture, bearing date the day of , A. D. one thousand nine hundred and , and recorded in the office for the recording of deeds in and for 584 Conveyancing in Pennsylvania. the county of in Deed Book No. , page , etc., grant and convey unto George Hartman in fee. 75. RECITAL OF TITLE BY EXECUTORS. And whereas the said A. E. and E. R. executors of the last will and testament of the said I. L., deceased, by virtue of the power and authority to them given by the said will, and pursuant to the direction thereof, did, by indenture, under their hands and seals, bearing date the Sixth day of January A. D. one thousand nine hundred and One, for the consideration therein mentioned, grant and confirm unto E. G., and to his heirs and assigns, all that the said messuage or tenement and tract of acres of land, with the appurtenances : To hold the same to him, his heirs and assigns forever, as in and by the said recited indenture ( recorded in the office for the recording of deeds at in book B, page ), relation being thereunto had, ap- pears. 76. RECITAL OF TITLE BY ADMINISTRATOR. And whereas, C. D., Administrator of all and singular the goods and chattels, rights and credits, which were of the said Adam Brown, at the time of his death, who died intestate, by virtue and in pursuance of an order of the Orphans' Court of the said County of , for the sale of the real estate of the said intestate, of October Term, 1910, No. 15, by indenture under the hand and seal of the said C. D., bearing date the day of , A. D. one thousand nine hundred and ten, for the consideration there- in mentioned, did grant and confirm unto Fbbd Geebn, and to his heirs and assigns, all that the said above-mentioned and described tract of acres and allowance afore- said, with the appurtenances: To hold the same to him, his heirs and assigns, forever, as in and by the said last recited indenture (recorded in the ofiice for recording of deeds, and for the county of , in Book No. , Page ) , relation being thereunto had, appears. Forms. 585 77. RECITAL OF TITLE BY SHERIFF'S SALE. And whereas H. L., High Sheriff of the County of Phila- delphia aforesaid, by deed poll, under his hand and seal, bearing date the First day of June, A. D. one thousand nine hundred and two, recorded (in the Prothonotary's office of the Court of Common Pleas No 2, for the City and County of Philadelphia, in Sheriff's Deed Book M No. 3, page 295, &c.)* for the consideration therein mentioned, by virtue of a certain writ of venditioni exponas (or Lb- VAKi Facias, as the case may be) therein recited, granted and confirmed unto C. G., and to his heirs and assigns, the said premises above described, late the estate of the said Adam Brown, with the appurtenances : To hold the same to the said C. G., his heirs and assigns forever, according to the Act of General Assembly in such case made and pro- vided, as by the said recited deed poll, duly acknowledged, and entered among the records of the Court of Common Pleas of the said county, relation being thereunto had, ap- pears. 78. RECITAL OF TITLE BY SHERIFF FOR PROP- ERTY OF A DECEDENT. It being the same lot of ground, No. , which E. H., High Sheriff of the County of , by deed poll, under his hand and seal, bearing date the Sixteenth day of July, A. D. one thousand nine hundred and four, for the con- sideration therein mentioned, did (as late the estate of S. G. ) grant and confirm unto the said C. L., party hereto, in feet, as in and by the said deed poll entered among the *Siiice the Act of April 22, 1905, Sec. 1, P. L. 265, the sheriff is re- quired to record his deeds after execution at the office for recording of deeds of the proper county, so that a recital of a sheriff's deed after that act should read "And recorded in the office for recording of deeds in and for the County of Philadelphia, in deed book No. — , page — , etc." Under the provision of the act of 1905 sheriff's deeds are no longer recorded in full in the prothonotary's office, only a cer- tificate thereof being there recorded. 586 Conveyancing in Pennsylvania. records of the Court of Common Pleas for the County of (and recorded in the office for recording of deeds at in Deed Book J. V. No. 321, Page 42), relation being thereunto had, appears. 79. RECITAL IN PURCHASE -MONEY MORTGAGE, GIVEN TO A THIRD PARTY. Being the same premises which William Stone by in- denture bearing even date herewith, but executed and de- livered before thtse presents, and intended forthwith to be recorded, for the consideration therein mentioned, part whereof has been advanced by Charles Dolan, and is in- tended to be hereby secured, granted and conveyed unto the said IssAC Long : the said William Stone having assigned his right to a purchase-money mortgage unto the said Charles Dolan. 80. RECITAL OF EXECUTOR'S OR ADMINISTRA- TOR'S DEED FOR LAND SOLD FOR PAYMENT OF DECEDENT'S DEBTS UNDER THE ACT OF JUNE 7, 1917, P. L. 447.* WHEREAS, W. W. B. was in his life time lawfully seised in his demesne as of fee, of and in the lot or price of ground and premises hereinafter particularly described with the appurtenances and being so thereof seised as afore- said departed this life on the first day of December, A. D. 1920, having first made and published his last Will and Testament in writing bearing date the 24th day of Decem- ber, A. D. 1909, duly proven the 15th day of January, A. D. *The Act of June 7, 1917, P. L. 447, requires that before the or- phans' court shall authorize, decree or approve a private sale of real estate for payment of a decedent's debts, notice must be advertised in at least one newspaper and in the legal periodical, if any, designated by the court for the publication of legal notices published in the county where the real estate is located. Written or printed notices must also be posted on the premises and at least three most public places in the vicinity. In drawing a deed for real estate so sold, com- pliance with this act should be recited as in the above form. Forms. 687 1921, and registered in the Office of the Eegister of Wills in and for the City and County of Philadelphia in Will Book No. , page , &c. WHEEEIN and WHEREBY after directing the pay- ment of his just debts and funeral expenses he, the said W. W. B., did will and direct as follows : "Second, I give, devise and bequeath unto my beloved wife, R. A., her heirs and assigns forever all my property, real, personal and mixed of what nature or kind soever and wheresoever the same shall ^be at the time of my death." AND WHEREAS, R. A. B. being so lawfully seised in her demesne as of fee of the premises hereinafter particu- larly described with the appurtenances, departed this life on the fifth day of March, A. D. 1921, having first made and published her last Will and testament in writing bearing date the second day of October, A. D. 1910, and duly proven the thirteenth day of March, A. D. 1921, and registered in the Office of the Register of Wills in and for the city and county of Philadelphia, in Will Book No. , page , &c. WHEREIN and WHEREBY after directing the pay- ment of her just debts and funeral expenses she the said R. A. B. did will and direct as follows : "Second, All the rest, residue and remainder of my estate, real, personal and mixed of whatsoever kind and whereso- ever situate, I give and devise and bequeath unto my chil- dren and my two grandchildren, namely, L., daughter of my son, W. W. B., Jr., deceased, and E., daughter of my deceased daughter, M. S., their heirs and assigns, to be equally divided between them, share and share alike." "Third," "I nominate, constitute and appoint T. F. B. to be the executor of this my last Will and Testament." AND WHEREAS, At an orphans' court for the city and county of Philadelphia, held on the first day of October, A. D. 1921, the petition of T. F. B., executor of estate of R. A. B., deceased, was presented, SETTING FORTH "That the said R. A. B. was seised in her demesne as of fee 588 Conveyancing in Pennsylvania. of the hereinafter described premises." "That there are not sufficient personal assets to pay the claims due from the estate of said decedent to the creditors thereof." That all persons and parties interested in said real estate being sui juris or by guardian have consented to the sale of the hereinafter described premises. That the petitioner has been unable to dispose of said premises at public sale for a fair or market price. That G. L. has offered to purchase the said real estate hereinafter described for the price or sum of twenty-five hundred ($2,500.00) dollars clear of all encumbrances and all the owners of said real estate have agreed to sell at said price and that proper and necessary deeds and assurances for said real estate should be executed to the said G. L. and a perfect title for the same made to him for the payment of debts of the decedent, E. A. B. The petitioner therefore prayed the court to approve of the price offered for said real estate and authorize petitioner to sell said real estate to G. L. for the price and sum of twenty-five hundred (|2,500.00) dollars for the payment of debts of the decedent, R. A. B. WHEREUPON after due advertising and notice to all heirs, creditors and parties in interest in accordance with the Act of the General Assembly approved June 7, 1917, in such case made and provided, the court, on the 16th day of October, A. D. 1921, upon due consideration of the said petition, ordered, adjudged and decreed that the petitioner is authorized hereby to sell the property described in the petition at private sale to G. L. for the price or sum of twenty-five hundred (|2,500.00) dollars in accordance with the contract of sale attached to and made part of the said petition for the payment of debts of the said decedent ; it having been shown to the court that due notice of the filing of said petition has been given in accordance with the Act of June 7, 1917, by advertising once a week for a period of three weeks prior to the presentation of this petition to the court and by posting notice of said application on the prop- Forms. 589 erty and in three of the most public places in the vicinity thereof. Security to be entered by the petitioner in the sum of five thousand (|5,000.00) dollars, which security has been duly entered in the orphans' court on November 1st, 1921. Now This Indenture Witnesseth, &c., &c., (here follows rest of deed, see forms 30 and 31, pages 476 and 481.) 81. OTHER RECITALS. For other Eecitals of Title under various Court proceed- ings, etc., consult the Deed Forms, 30 and 31, pages 476 and 481. 82. RELEASE OF LIEN OF JUDGMENT. W. F. C. ~) I In the Court of Common Pleas for Phladelphia F^G A f County, June Term, 1920, No. 441. I, F. G. D., the plaintiff in the above stated Judgment at the request of W. F. C. the defendant therein, and for and in consideration of the sum of One (fl.OO) Dollar to me in hand paid by the said W. F. C. at the time of the execution hereof, the receipt whereof is hereby acknowledged, do for myself, my heirs, executors, and administrators, covenant, promise and agree to and with the said W. F. C. his heirs and assigns by these presents, that I will not at any time hereafter sell or dispose of, attach or levy upon, or claim or demand the premises hereinafter described, with the ap- purtenances, to wit : All That Ceetain triangular lot or piece of ground with the two-story building thereon erected, situate at the inter- section of the North West Corner of Moyamensing Avenue and the Southwest Corner of Jackson Street in the First Ward of the City of Philadelphia, containing in front on the said Moyamensing Avenue sixty-two feet eleven and three-fourths inches and on Jackson Street ninety feet five and three-eighths inches and at the rear end thirty-six feet or any part thereof, by virtue of the said Judgment so that 590 Conveyancing in Pennsylvania. the said W. F. C. his heirs and assigns shall and may hold the same free and clear of and from the lien of the said Judgment, provided, however, that nothing herein con- tained, shall invalidate the lien or security of the said Judgment upon the other estate of the said W. F. C. In Witness Whereof I have hereunto set my hand and seal this day of December, A. D. one thousand nine hundred and twenty (1920). Sealed and delivered in the F. G. D. (Seal.) ( (Seal.) presence of us M. A. B., F. T. D. J This release should be filed in the prothonotary's office 83. RELEASE OF LIEN OF LEGACY. KNOW ALL MEN BY THESE PEESENTS that, whereas Arthur Brown, now deceased, late of Cheltenham Township, Pennsylvania, in and by his last Will and Testa- ment dated the first day of June, 1920, duly admitted to probate the tenth day of August, 1922, and recorded in the office of the Register of Wills at Norristown, Montgomery County, Pennsylvania, in Will Book , Page , be- queathed to me the sum of five thousand dollars, and WHEREAS the said Arthur Brown died seized of the premises herein after described which said premises form part of the residuary estate of the said Arthur Brown. provided as by his said will ; THEREFORE BE IT KNOWN that I do hereby release and forever discharge from all liability, claim, demand or lien on account of or by reason of said legacy, ALL THAT CERTAIN lot, etc., (here describe premises). PROVIDED, however, that nothing herein contained shall invalidate the lien or security of said legacy upon the other estate of Arthur Brown, deceased. WITNESS my hand and seal this first day of October, 1922. WITNESSED. CHARLES DUNN. (Seal.) (Acknowledgment. ) FoEMs. 591 84. RELEASE OF MORTGAGE. TO ALL TO WHOM THESE PRESENTS SHALL COME, Arthur A. Brown sends greetings: Whereas, Charles H. Dunn by Indenture of Mortgage bearing date the iirst day of June, Anno Domini 1918, and Recorded in the Office for Recording of Deeds in and for the County of Chester, in Mortgage Book No. , page , &c, granted and conveyed unto Everett Farr his heirs, executors and administrators and Assigns, the prem- ises therein particularly described, to secure the payment of a certain debt or principal sum of Five Thousand Dol- lars ($5,000) lawful money, with interest, as therein men- tioned. And whereas the said Arthur A. Brown is the present holder of said mortgage hy Assignment by the said Everett Farr dated March 1st, 1920, and recorded in Assignment of Mortgage Book, No. Page AND WHEREAS, the said Charles H. Dunn is desirous of having the premises hereinafter described, (being part of said mortgaged premises) released from the lien and operation of the said Mortgage : NOW THEREFORE KNOW YE, that / the said Arthur A. Brown as well in consideration of the premises as of the sum of Two Thousand Dollars ($2,000) lawful money, to me in hand paid by the said Charles Dunn at the time of the execution hereof, the receipt whereof is hereby acknowl- edged, Have remised, released, quit-claimed, exonerated and discharged, and by these presents, Do demise, release, quit -claim, exonerate and discharge unto the said Charles H. Dunn his heirs, executors, administrators and Assigns, All that certain (Here describe premises). TO HOLD the same, with the Appurtenances, unto the said Charles H. Dunn, his heirs, administrators, executors and Assigns, forever freed, exonerated and discharged of and from the lien of said Mortgage, and every part thereof. Provided, always, nevertheless, that nothing herein con- tained shall in anywise affect, alter or diminish the lien or 592 Conveyancing in Pennsylvania. encumbrance of the aforesaid Mortgage on the remaining part or parts of said Mortgaged Premises, or the remedies at law for recovering thereout or against the said Charles H. Dunn, his heirs, executors, administrators or Assigns, the balance of the principal sum, and interest, secured by said Mortgage. In witness whereof, the said parties to these presents have hereunto set their hands and seals this first day of January, A. D. 1922. Sealed and delivered in the presence of us: (Acknowledgment. ) 85. TITLE ACQUIRED BY ADVERSE POSSESSION: FORM OF CLAIM TO BE RECORDED UNDER ACT OF 1901, P. L. 352. I, John Kobekts, of Ivyland, in the County of Bucks. State of Pennsylvania, do hereby affirm and declare that I have acquired title in fee by twenty-one y^ars adverse pos- session to the following described land, situate in Rockhill Township, County of Bucks, State of Pennsylvania, to wit: [Here describe the premises). Adverse entry was made upon said land by me on or about the 21st day of March, Anno Domini 1900, and con- tinued until about the first day of June, Anno Domini 1922.* At the time of said entry, Isaac Brown (naming some person or persons in the line of existing title or legal title, as nearly as the same may be, the real owner of said lands *If the possession of the olaimant is tacked on to that of others who have preceded him, it should be stated as follows : Adverse Entry was made upon said lands by Thomas Jones on or about the 21st day of March, Anno Domini 1900, who continued in possession until about the first day of December, Anno Domini 1906, and was succeeded therein by William Smith, who continued in possession until about the ninth day of January, Anno Domini 1915, and was succeeded therein by me, who continued in possession until about the first day of June, Anno Domini 1922. Forms. 593 At the time of said entry, Isaac Brown (naming some said land and I claim adversely to him. Witness my hand and seal this first day of August, A. D. 1922. John Roberts. (Seal.) State op Pennsylvania ) County op Bucks, j Be it kemembeeed that on the, first day of August, A. D. 1922, before me the subscriber, a notary public in and for the Commonwealth of Pennsylvania residing at Doyles- town, personally appeared John Roberts, who being duly sworn did declare and say that the facts set forth in his foregoing Statement of Claim are true as he verily believes. Witness my hand and seal the day and year aforesaid. Thomas Stone, (Seal.) Notary Public. My commission expires May 1, 1923. 86. FORM OF WILL. I, Arthur Brown, of the Borough of Lansdowne, Dela- ware County, Pennsylvania, being of sound mind, memory and discretion, do hereby make, declare and publish this as my last Will and Testament, revoking hereby all Wills heretofore by me made. First. I desire that all my just and lawful debts and funeral expenses be paid as soon as possible after my de- cease. Second. I give and bequeath to my wife, Mary Brown, all the household furnishings and belongings in my home at 400 Stratford Ave., Lansdowne, Pennsylvania, or where- soever my home may be at my decease absolutely, and for- ever. Third. I give and devise all my real estate of whatso- ever kind and wheresoever situate, of and to which I may die seised, possessed or entitled, to Delaware County Trust Company, its successors and assigns, IN TRUST, neverthe- less to allow my wife, Mary Brown, to enjoy and use the same, and to receive the income therefrom during the term 38 594 Conveyancing in Pennsylvania. of her natural life, and immediately upon the decease of my said wife, to grant and convey the same in fee to my chil- dren, share and share alike. Fourth. I hereby give the said Delaware County Trust Company, power to sell and convey any of the real estate hereby devised in trust, with the written consent and ap- proval of my wife and children. Fifth. I give and bequeath to Delaware County Trust Company, its successors and assigns, the sum of Fifty Thousand Dollars (|50,000.00) IN TRUST, nevertheless to keep the said sum invested and to pay the income there- from to my wife, Mary Brown, during the term of her natural life, and immediately after her decease to pay, assign, or set over : (a) To my son, James Brown, the sum of $20,000. (b) To my daughter, Esther Brown, the sum of $20,000. (c) To my granddaughter, Anna May Brown, daughter of James and Elizabeth Brown, the sum of $10,000, pro- vided however, that if my said granddaughter shall not have reached the age of twenty-one years, I direct that the said Delaware County Trust Company shall hold the said sum of $10,000 IN TRUST, for my said granddaughter, the income therefrom to be retained by the said Trustee and allowed to accumulate until she reaches the age of twenty- one (21) years and then to be paid over to her together with the said principal sum; and provided further, how- ever, that if the father of my said granddaughter shall die before she reaches the age of twenty-one years, the income of the. trust fund shall thereafter be applied to the mainte- nance, education and support of my said granddaughter. Sixth. In the event of the death of either of my said children, without leaving issue, before the remainders above devised and bequeathed to them, shall have vested in pos- session, I give, devise and bequeath their respective inter- ests in remainder, by cross-remainders to the survivor; or if both shall so die without issue, I give, devise and be- queath said estate in remainder to my brother, Henry Brown, absolutely and in fee, and if he be deceased, then Forms. 595 subject to power of appointment by him, by last Will and Testament or writing in the nature thereof. Seventh. I direct that my wife, Mary Brown, shall have the right and privilege of using as a residence my home at 400 Stratford Ave., Lansdowne, Pennsylvania, or any other property or properties of which I may die seised during the term of her natural life, or to enjoy the benefits thereof in any way that she may elect. Eighth. All the rest, residue and remainder of my es- tate, I give, devise and bequeath to my brother, Henry Brown, absolutely. Ninth. I nominate, constitute and appoint my Brother, Henry Brown, as the sole executor of this my last Will and Testament. In witness whereof I have hereunto set my hand and seal this tenth day of September in the year of our Lord nine- teen hundred and twenty (1920). Akthue Beown. (Seal.) Signed, sealed, published and declared by Arthur Brown the testator above-named, as and for his last Will and Testament in the presence of us, who at his request in his presence and in the presence of each other, have hereunto subscribed our names as wit- nesses. Address Address Address 87. CODICIL. I, Arthur Brown, of the Borough of Lansdowne, Penn- sylvania, have made my last Will and Testament dated the 596 Conveyancing in Pennsylvania. tenth day of September, A. D. 1920, whereby I bequeathed and devised certain remainder interests together with all the residue of my estate to my brother, Henry Brown, and appointed the said Henry Brown as my sole executor, hereby revoke all of said gifts to my said brother and re- voke my appointment of him as executor and I hereby be- queath and devise all of said property, heretofore given to my said brother, to my nephew, Charles Brown, son of the said Henry Brown, and I hereby appoint my son, James Brown, as my sole executor. In all other respects I do hereby ratify and confirm my said will. In witness whereof I have hereunto set my hand and seal this tenth day of September in the year of our Lord nine- teen hundred and twenty ( 1920 ) . Arthur Brovs^n. (Seal.) Signed, sealed, published and declared by Arthur Brown the testator above named, as and for a codicil to his last Will and Testament in the presence of us who at his re- quest in his presence and in the presence of each other, have hereunto subscribed our name as witnesses. 88. CLAUSE OF WILL GIVING EXECUTOR POWER AND DIRECTING HIM TO SELL REAL ES- TATE. I order and direct my executor hereinafter named to sell all my real estate at public or private sale and upon any such sale thereof I order and direct my said executor to distribute and pay the net proceeds of sale as follows, viz : Forms. 597 89. FORM OF CODICIL FOR A CHILD BORN AFTER DATE OF WILL. I, Earl Green, do hereby make this a codicil to my last will and testament, dated the Twenty-fourth day of Novem- ber, 1916, viz : My son, Charles, having been born after the date of said will, I do hereby provide for and give, devise and bequeath unto him and his heirs in fee simple and ab- solutely one-fourth part and share of all my estate, real, personal and mixed, and so that he shall have and receive an equal part of my said estate with my other children in lieu of any share he may have under the intestate laws, and I reduce and revoke the shares of my other children ac- cordingly, so as to provide for said share for my son, Charles, and I appoint my wife as guardian of his person and estate and with this change and in all other respects I do confirm my said will. In Witness Whereof, I have hereunto set my hand and seal this first day of October, A. D. 1922. Earl Green. (Seal.) Signed, sealed, published and declared by Earl Green the testator above named, as and for a codicil to his last Will and Testament in the pres- ence of us who at his request in his presence and in the presence of each other, have hereunto subscribed our name as witnesses. It is good practice to have subscribing witnesses of both wills and codicils. Write their addresses after their signatures. TABLE OF CASES CITED Page Abbot 's Appeal, 50 Pa. 264 . . 39 Ackla 11. Ackla, 6 Pa. 228 140 Adams v. Dunn, 64 Pa. Super. 303 343 Adamson v. Souder, 205 Pa. 498 164 Addison v. Wanamaker, 185 Pa. 536 360, 365 Africa v. Trexler, 232 Pa. 493. 205 Agnew's Estate, 17 Pa. Super. 201 325 Ahem v. Standard Eealty Co., 267 Pa. 404 334 AM V. Ehoads, 84 Pa. 319 118 Akia V. Byrd, 153 Pa. 23 181 Albriglit v. Lafayette Bldg. Assn., 102 Pa. 411 120 Alexander v. Ellis, 123 Pa. 94. 206 Alexander v. Shalala, 228 Pa. 297 29 Allegheny v. La BeUe Steel Co., 25 Pa. C. C. 103 239 Alles V. Lyon, 216 Pa. 604 ..11, 12 Allison V. Bigelow, 68 Pa. Super. 219 226 Amer v. Longstreth, 10 Pa. 145 103 American Academy of Music v. Smith, 54 Pa. 130 153 American Soda Fountain Co. v. Stenger, 50 Pa. Super. 481.. 329 Anderson v. Brinser, 129 Pa. 376 398 Anderson v. Kern, 259 Pa. 81. . 128 Andrews ■;;. Kissinger, 60 Pa. Super. 599 298 Anschutz V. Miller, 81 Pa. 212 278 Appeal of Eees, 12 Atl. Eep. 427 224 Arbuckle's Estate, 252 Pa. 161 40 Archambault's Estate, 232 Pa. 347 325 Ardisco v. N. A. Oil Co., 66 Pa. 375 33 599 Page Armstrong v. Boyd, 3 P. & "W. 458 77 Arnold v. Buffalo, etc. Ey. Co., 32 Pa. Super. 452 260 Arnold v. Jack's Executors, 24 Pa. 57 9 Ashton's Appeal, 73 Pa. 153 129-130 Atkinson v. Walton, 162 Pa. 219 144 Auer V. Penn, 99 Pa. 370 339 Auer V. Penn, 92 Pa. 444 339 Auman v. Auman, 21 Pa. 343 . 76 Auwerter v. Mathiot, 9 S. & E. 397 52 Ayres v. Watson, 57 Pa. 360 . . 121 Baboock v. Day, 104 Pa. 4 .. 76 Bachrach v. Fleming, 269 Pa. 350 364 Bagley v. Wallace, 16 S. & E. 245 32 Bailey u. Allegheny Bank, 104 Pa. 425 110-112 Baker v. P. E. E. Co., 236 Pa. 479 228 Baker 's Appeal, 107 Pa. 381 . . 273 Bank of Montgomery's Appeal, 36 Pa. 170 121 Bank v. North, 160 Pa. 303 ... 48 Banneret v. Bannerot, 238 Pa. 606 48 Bannon v. Brandon, 34 Pa. 263 217 Baptist Church v. Eobbarts, 2 Pa. 110 282 Barber v. Miller, 41 Pa. 442 . . 361 Barclay E. E. Co. v. Ingham, 36 Pa. 194 294 Bardsley 's Appeal, 20 W. N. C. 90 315 Barnard v. Kell, 271 Pa. 80 . . 89 Barnes v. Wilson, 116 Pa. 303 317 600 Conveyancing in Pennsylvania. Fage Bartram v. Bering, 18 Pa. Super. 395 55 Baum V. BirehaU, 150 Pa. 164. . 22 Baum 's Appeal, 113 Pa. 58 . . . 91 Baum 's Estate, 269 Pa. 63 . . 282 Bayard v. Farmers' & Mechan- ics ' Nat. Bank, 52 Pa. 232 . . 31 Beaver v. Nutter, 10 Phila. 345 303 Bedford v. McElh&ron, 2 S. & E. 49 310, 340 Bedford Lodge v. Lentz, 194 Pa. 399 81 Beihl u. Martin, 236 Pa. 519 . . 13 Bell V. Moredock, 54 Pitts. L. J. 379 220 Beltzhoover v. Waltman, 1 W. & S. 416 328 Bender v. George, 92 Pa. 36 . . 334 Bennett •;;. Biddle, 150 Pa. 420 221 Bergner v. Palethorp, 2 W. N. C. 297 313 Billing's Estate, 268 Pa. 67 .. 274 Biting 's Appeal, 17 Pa. 211 . . 187 Bittiuger v. Baker, 29 Pa. 66 . 310 Bittner v. Bangert, 35 Pa. Super. 448 322 Black V. Conwell, 6 D. E. 66 . . 192 Black V. Peutony, 30 Pa. Super. 41 367 Blair v. Mathiott, 46 Pa. 262 . . 129 Blease v. Anderson, 241 Pa. 198 12 Blight V. Shenek, 10 Pa. 285 . . 91 Boman V. Eobb, 6 Pa. 302 ... 88 Booth V. Hoenig, 7 Pa. Dist. Eep. 529 327 Borie v. Satterthwaite, 180 Pa. 542 54 Bornot v. Bouschur, 202 Pa. 4,63 237-240 Bouvier's Estate, 14 W. N. C. 535 196 Bowes V. Oyster, 3 P. & W. 239 108 Bowser v. Cessna, 62 Pa. 148 . . 57-58 Boyd V. Boyd, 66 Pa. 283 ... 269 Boyer v. Dickson, 7 Pliiln. 190 324 Bradley v. Trust Co., 7 Pa. Super. 419 322 Page Brahms Estate, 269 Pa. 82 .. 262 Braker v. Deuser, 49 Pa. Super. 215 332 Bratton's Appeal, 8 Pa. 164 .. 119 Breeht v. Bialas, 19 Pa. Dist. Eep. 664 134 Brendle v. German Eeformed Congregation, '53 Pa. 415 . . 37 Britten's Appeal, 45 Pa. 172 . 175 Brock's Estate, 247 Pa. 365 .. 282 Brolasky v. Ferguson, 48 Pa. 434 315 Bronisz v. Cienkowski, 68 Pa. Super. 524 337 Brooklyn St., In re., 118 Pa. 640 231 Brothertou v. Livingston, 3 W. & S. 334 176 Brown's Estate, 273 Pa. 543 . . 278 Brown & Hamilton v. Johnson, 251 Pa. 378 304 Brown v. MeCormick, 6 Watts, 60 99 Brown v. McCreight, 187 Pa. 181 108 Brown v. Mattocks, 103 Pa. 16 77 Brown v. Sims, 17 S. & E. 138. 328 Brubaker's Estate, 59 Pa. Super. 109 190 Brumbach v. McTjean, 196 Pa. 321 130 Buchanan v. Corson, 51 Pa. Super. 558 29 Buck V. Fisher, 4 Whart. 516 . 159 Burk 's Appeal, 75 Pa. 141 ... 56 Bush u. Geuter, 174 Pa. 154 . . 90 Cable V. Cable, 146 Pa. 451 . . 90 Cadwalader v. App, 81 Pa. 194 43 Cake's Appeal, 23 Pa. 186 119-120-175 Calder v. Chapman, 52 Pa, 359 99-113 Caldwell v. Caldwell, 24 Pa. Super. 230 60 Caldwell v. "Walters, 18 Pa. 79 192 Callaghan v. McCredy, 48 Pa. 463 424 Table of Cases Cited. 601 Page Camp V. Wood, 10 Watts 118. 192 Campbell v. Foster Assn., 163 Pa. 609 138 Carmen v. Jackson, 252 Pa. 257 217 Cannon v. Keystone Co., 73 Pa. Super. 53 342 Carman's Appeal, 2 Penny. 332 285 Cafnahan v. Brown, 60 Pa. 23 182 Carothers v. Sims, 194 Pa. 386 126 Carpenter's Estate, 170 Pa. 203 256 Carpenter v. Koons, 20 Pa. 222 135 Carpenter v. Wolf, 76 Pa. Super. 363 305 Carroll v. Miner, 1 Pa. Super. 439 298 Carrow ■;;. Headley, 155 Pa. 96 142 Carson v. Blazer, 2 Binn. 475 . 293 Carver v. Gough, 153 Pa. 225 347, 348 Cavanaugh v. Buehler, 120 Pa. 441 367 Chadwick v. Collins, 26 Pa. 138 358, 359 Channon's Estate, 266 Pa. 417 275 Charlotte Furnace Co. v. Stouf- fer, 127 Pa. 336 348 Christ Church v. Clark, 47 Pa. Super. 286 17 Christian v. Bitner, 11 Pa. 127 . 61 Civic Club of Harrisbnrg v. Payne, 19 Dauph. 150 37 Claason 's Appeal, 22 Pa. 359 . . 174 Clark V. Everly, 8 W. & S. 226 350 Clark V. Martin, 49 Pa. 299 . . 99 Clark V. Smith, 25 Pa. 137 ... 311 Clay V. Iscminger, 190 Pa. 580 156 Clever v. Clever, 38 Pa. Super. 66 57 Coleman v. Reynolds, 181 Pa. 317 92 CoUins V. Aaron, 162 Pa. 539 164 Colt V. Selden, 5 Watts 525 . . 43 Comb 's Appeal, 105 Pa. 155 . . 275 Commonwealth v. Baldwin, 1 Watts 54 32 Commonwealth v. Foster, 36 Pa. Super. 433 294 Page Commonwealth v. George, 7 Leh. 239 295 Commonwealth v. Graphite Co., 248 Pa. 344 207 Commonwealth v. Haines, 97 Pa. 228 93 Commonwealth Title Co. v. El- lis, 192 Pa. 321 120 Comstock V. Clearfield etc. Ey. Co., 169 Pa. 582 228 Conneaut Lake Ice Co. v. Quig- ley, 225 Pa. 605 294-295-300 Connell v. P. & R. Railway Co., 241 Pa. 172 218 Connor v. BeU, 152 Pa. 444 .. 217 Conway v. BuiI3ing & Loan Assn., 44 W. N. C. 439 153 Cook V. Brightley, 46 Pa. 439 . 155 Cook 11. Lovett, 17 Dist. Rep. 347 157 Cook V. Neilson, 10 Pa. 41 . . 340 Cooper 's Estate, 4 Pa. 88 284 Cooper V. Brockway, 8 Watts 162 206 Cooper V. Smith, 9 S. & R. 25. . 220 Corson v. Mulvany, 49 Pa. 88 61-182 Cotter V. Philadelphia, 194 Pa. 496 239 County of Schuylkill v. Copley, 67 Pa. 386 87 Cowton V. Wickersham, 54 Pa. 302 149 Cox V. Freedley, 33 Pa. 124 . . 299 Craft u. Webster, 4 Ea.wle, 242 125 Crawford v. Carver, 16 Phila. 53 137 Crawford v. Commonwealth, 1 Watts 480 291 Crippen v. Bergold, 258 Pa. 4';9 173 Critchfield v. Critchfield, 24 Pa. 100 89-91 Cummings v. Glass, 162 Pa. 241 90 Cundey v. Hall, 208 Pa. 335 . . 39 Cunningham v. Entrekia, 3 Dist. Rep. 291 320 Cunningham v. McCready, 219 Pa. 594 109 602 Conveyancing in Pennsylvania. Page Curry v. Bacharach Quality Shops, 271 Pa. 364 338 Curry v. Baymond, 28 Pa. 144 163 Cutter V. PierBon, 26 Pa. Super. 10 74 D 'Arey v. Lyle, 5 Binn. 441 . . 366 Dahlem's Estate, 175 Pa. 444. 121 Dail V. Moore, 51 Mo. 589 ... 93 Dailey v. Beck, 4 Clark 58 85 DalzeU v. Nublum, 49 Pitts. L. J. 138 43 Dare's Estate, 9 Dist. Rep. 431 262 Darlington v. Darlington, 160 Pa. 65 367 Darlington v. United States, 82 Pa. 382 224 Darrah v. Kadison, 55 Pa. Super. 335 214 Daubert v. Bckert, 94 Pa. 255 115 Davey v. EufEell, 162 Pa. 443 . 163 Day V. Swauson, 236 Pa. 493.. 203 Delaware & Hudson Co.'s Ap- peal, 38 Pa. 512 137 Delaware, L. & W. E. K. Co. v. Tobyhanna, 228 Pa. 487 and 232 Pa. 76 218 Demi v. Bossier, 1 P. & W. 224 349 Dempster v. Traction Co., 205 Pa. 70 232-233 Demuth v. Amweg, 90 Pa. 181. 222 Densmore v. Haggerty, 59 Pa. 189 48 Dentler's Appeal, 23 Pa. 505 . . 53 De Sanno v. Earle, 273 Pa. 265 148 Devine's Appeal, 30 Pa. 348 154-156-210 De Witt's Appeal, 76 Pa. 283 105, 143 Dickerman v. Parrish, 6 Pa. 210 213 Dickinson v. Beyer, 87 Pa. 274 208 DUlinger v. Ogden, 244 Pa. 20 53 Dilts V. Plumville E. E. Co., 222 Pa. 516 225-226 Directors of Poor v. Eoyer, 43 Pa. 146 259 Disston's Estate, 257 Pa. 537 ,. 285 Page Diver v. Diver, 56 Pa. 106 ... 10 Dobkin v. Landsberg, 273 Pa. 174 47-51-133 Dollar Savings Bank v. Duff, 269 Pa. 29 137 Dolph V. Hand, 156 Pa. 91 .. 27 Donagan v. McKee, 13 Phila. 48 152 Donley v. Hays, 17 S. & E. 400 126 Donnelly v. Friok & Lindsay Co., 207 Pa. 597 349 Doran v. Chase, 2 W. N. 0. 609 318 Dorsh V. Lea, 18 Pa. Super. 447 328 Dougan v. Blocher, 24 Pa. 28 59 Doughty V. Cooney, 266 Pa. 237 50 Douglas V. Irvine, 126 Pa. 643 218 Doyle V. Brundred, 189 Pa. 113 185 Dubs V. Dubs, 31 Pa. 149 261 Duffy V. DufEy, ao Pa. Super. 25 219 Dumars v. Mailer, 34 Pa. 319. . 55 Dumn V. Eothermel, 112 Pa. 272 314 Dunn V. MeUon, 147 Pa. 11 . . 318 Dunning v. Eeese, 7 Knlp 201 166 Easby v. Easby, 180 Pa. 429.. 153 Easton Borough's Appeal, 47 Pa. 255 112 Eberz v. Heistler, 12 Pa. Super. 388 424 Eckman -u. Eckman, 68 Pa. 460 70-75 Edmundson's Estate, 259 Pa. 429 76 Edwards v. "Woodruff, 25 Pa. Super. 575 295-300 Ege V. Medlar, 82 Pa. 86 214 Ehrlich v. Brogan, 262 Pa. 362 160 Einfeld v. Shermer, 56 Pa. Super. 4 319 Elliott V. Walker, 11 Eawle 126 366 EUis V. Eice, 195 Pa. 42 324 Ellison V. Anderson, 110 Pa. 486 30 Elsey V. McDaniel, 95 Pa. 472 30 Table of Cases Cited. 603 Fage Englert v. Englert, 198 Pa. 326 270 Ermentrout v. Stitzel, 170 Pa. 540 81 Erwin v. Myers, 46 Pa. 96 56 Eshleman's Appeal, 74 Pa. 42 262 Esling V. Williams, 10 Pa. 126 221 Espey V. Anderson, 14 Pa. 312 424 Evan 's Appeal, 58 Pa. 238 281 Evan's Estate, 47 Pa. Super. 196 255 Evan's Estate, 12 Diat. Eep. 694 275 Evans v. MeCarter, 8 W. N. C. 75 149 Ewald V. Fidelity T. & T. Co., 43 Pa. Super. 593 330 Fairhope Brick Co., 183 Pa. 103 39 Farmers' Bank v. Ege, 9 Watts 436 208 Fassitt V. Sipp, 249 Pa. 576 . . 218 Faust V. Haas, 73 Pa. 295 ... 193 Fays' Estate, 213 Pa. 428 ... 60 Fearl v. Johnstown, 216 Pa. 205 183 Felin v. Locust Eealty Co., 232 Pa. 123 188 Fenn v. Dickey, 178 Pa. 258 . . 361 Fennell's Estate, 207 Pa. 309 259 Ferdinando v. Seranton, 190 Pa. 321 237 Fidelity Trust Co. v. Kohn, 27 Pa. Super. 374 337 Filby V. Mmer, 25 Pa. 264 ... 54 Finn v. Mellor, 265 Pa. 147 ... 203 Firmstone v. Spaeter, 150 Pa. 616 299 Fisher v. Carson, 159 Pa. 477 136 Fitzpatriek v. ChUds, 2 Brew- ster 365 343 Fitzpatriek v. Rogers, 75 Pa. Super. 273 339 Flanagan's Estate, 59 Pa. Super 61 30 Fleek v. Zillhaver, 117 Pa. 213 13-116 Fleming's Estate, 265 Pa. 399 270 Page Fogerty v. Dix, 75 Pa. Super. 214 333 Folk V. State Capital Sav. Assn., 214 Pa. 529 373 Folkman v. Lauer, 244 Pa. 605 321 Forman v. Hosier, 94 Pa. 418 30 Foray the v. Philadelphia, 211 Pa. 147 237 Foster 's Appeal, 74 Pa. 391 . . 40 Foster ■;;. Carson, 159 Pa. 477 . 131 Foster v. Gray, 22 Pa. 9 192 Foster v. Harris, 10 Pa. 457 . . 53 Foulk V. Brown, 2 Watts 209 . . 211 Foulke V. Millard, 108 Pa. 230 209 Fourth National Bank's Ap- peal, 123 Pa. 473 126 Poust V. P. E. E. Co., 212 Pa. 213 229 Frank v. Guarantee Trust etc., Co., 216 Pa. 40 155 Franciscus v. Eeigart, 4 Watts 98 150 Frazier v. Church, 147 Pa. 256 37 Fredericks v. Canal Co., 148 Pa. 317 229 Freeland v. P. E. E. Co., 197 Pa. 529 294-296 Freemansburg B. & L. Assn. v. Watts, 119 Pa. 221 371 Fries v. NuU, 154 Pa. 573 168 Frowert's Estate, 12 Phila. 148 424 Fuller V. Cole, 33 Pa. Super. 563 297-300 Gallagher v. Stern, 250 Pa. 292 99-113 Gamble v. PhUa., 162 Pa. 413. 231 Gandy v. Dickson, 166 Pa. 422 328 Gandy v. Klaw, 269 Pa. 320 . . 323 Gangwere's Estate, 14 Pa. 417 24 Ganster v. Electric Co., 214 Pa. 628 229 Geiger v. Peterson, 164 Pa. 352 126 German Nat'l Bank v. MeUor, 238 Pa. 415 103 Gernert v. Albert, 160 Pa. 95. . 117 Gernet v. Lynn, 31 Pa. 94 219 604 Conveyancing in Pennsylvania. Fage Ghegan v. Young, 23 Pa. 18 . . 333 Gillan -y. Dixon, 65 Pa. 395 . . 12 Gillespie v. Buffalo, etc. By Co., 204 Pa. 107 165 Gillespie v. By Co., 226 Pa. 31 232 Gilnior 's Estate, 154 Pa. 523 . . 274 Girard Ins. Co. v. Parmera' Bank, 57 Pa. 388 207 Girard Trust Co. v. Cosgrove, 270 Pa. 570 334 Glading v. Prick, 88 Pa. 460 . . 171 Giancey v. Jones, 4 Yeates 212 193 Glass V. Seger, 265 Pa. 391 . . 207 Goldstein v. Nichols, 273 Pa. 107 313 Good V. Bausman, 6 W. N. C. 93 166 Goodritz v. McMahon, 64 Pa. Super. 479 57 Gordon v. Gordon, 45 Pa. Super. 95 52 Gorgas v. Phila. etc. B. E. Co., 215 Pa. 501 227 Gorsuch V. Berman, 270 Pa. 8 . 367 Goss V. Woodland Brick Co., 4 Pa. Super. 167 334 Gosain v. Brown, 11 Pa. 527 . . 137 Goweu V. Philadelphia Ex- change Co., 5 W. & S. 141 . . 237 Grabill v. Barr, 5 Pa. 441 270 Grace Church v. Dobbins, 153 Pa. 294 80 Grant's Appeal, 44 Pa. 477 .. 331 Grasseli Chemical Co. v. Biddle Co., 22 Pa. Super. 426 366 Gray v. Henderson, 71 Pa. 368 196 Gray v. Smith, 3 Watts 289 . . 112 Graybill v. Buhl, 225 Pa. 417 . 55 Gr6en v. Drinker, 7 W. & S. 440 165 Green v. Kellum, 23 Pa. 254 . . 214 Green v. Schrack, 16 Pa. Super. 26 298 Greeublatt v. Fox, 59 Pa. Super. 53 363 Greenfield's Estate, 14 Pa. 496 87 Greenough v. Greenough, 11 Pa. 489 272 Page Griffin's Appeal, 109 Pa. 150 .. 237 Griffiths V. Philips, 3 Grant 381 185 Groskin v. Moore, 249 Pa. 242 362 Goss V. Woodland Brick Co., 4 Pa. Super. 167 334 Grove v. Hodges, 55 Pa. 504 . . 88 Gwinuer v. Trust Co., 226 Pa. 614 39 Hacker's Appeal, 121 Pa. 192 71-88 Hacker v. Cozzens, 92 Pa. 461 . 210 Hads V. Tiernan, 213 Pa. 44 . . 217 Haeberly's Appeal, 191 Pa. 239 40 Hagenbuch v. Philips, 112 Pa. 284 115 Hall 's Estate, 266 Pa. 312 40 Hampton v. Speeknagle, 9 S. & B. 212 368 Hancock's Appeal, 34 Pa. 155. 126 Hancock v. Phila., 175 Pa. 124 231-299-300 Haney v. Hatfield, 241 Pa. 413 55 Hanley v. McDermott, 29 Dist. Bep. 864 257 Harmony Building Assn. v. Berger, 99 Pa. 320 114 Harrop v. Lutz, 53 Pa. Super. 195 324 Hart V. Anderaou, 198 Pa. 558 141-152 Hart v. Bucher, 182 Pa. 604 . . 139 Hart V. Carroll, 85 Pa. 508.. 59, 60 Hartz V. Woods, 8 Pa. 471 ... 143 Hauek v. Pipe Line Co., 153 Pa. 366 226 Haverford Assn. v. Fire Assn., 180 Pa. 522 138 Haverstick v. Sipe, 33 Pa. 368 221 Hawk V. Seuseman, 6 S. & B. 21 212 Hawn v. Norris, 4 Binn. 77 . . 182 Hays V. Bridge Co., 32 Pitts. L. J. (N. S.) 265 37-38 Heckman's Estate, 236 Pa. 193 55-56-57 Table of Cases Cited. 605 Heddens' Appeal, 17 Atlan. Eep. 29 30 HefEelfinger v. Haas, 71 Pa. Super. 425 361 HefEner v. Lewis, 73 Pa. 302.. 348 Heister v. Portner, 2 Binn. 40. 164 Hele V. Stewart, 19 W. N. 0. 129 319 Hendler v. Quigley, 38 Pa. Super. 39 346 Hendrick v. Thomas, 106 Pa. 327 188 Hendrickson 's Appeal, 24 Pa. 363 120 Heron v. Houston, 217 Pa. 1 . . 302 Heslop V. Heslop, 82 Pa. 537 . . 258 Hetriek's Appeal, 58 Pa. 477. 26 Hetzel V. Lincoln, 216 Pa. 60 . . 13 Hewitt V. Pittsburgh etc. R. E. Co., 19 Pa. Super. 304 227 Heysham v. Dettre, 89 Pa. 506 48 Hill V. Jones, 152 Pa. 433 ... 366 Hill V. Meyers, 43 Pa. 170 59 Hinds V. Scott, 11 Pa. 19 192 Hippie V. Laird, 189 Pa. 472. . 361 Hobson v. Phila., 150 Pa. 595. . 299 Hockley v. McGlinn, 40 Leg. Int. 279 333 Hockman v. Kuehler, 53 Pa. Super. 481 339 Hoeveler v. Fleming, 91 Pa. 322 318 Holliday v. Hiveley, 198 Pa. 335 28 HoUis V. Burns, 100 Pa. 206 310, 340, 343 Holt V. Martin, 51 Pa. 409 .. 350 Home Bldg. Assn. v. Troth, 3 Del. Co. 169 140 Hornet V. Singer, 35 Pa. Super. 491 158 Hoover v. Ober, 42 Pa. Super. 308 199 Hoover v. Pontz, 271 Pa. 285. . 56 Hoover v. Potter, 42 Pa. Super. 21 12 Hope V. P. & W. B. E., 211 Pa. 401 227 Hopkins V. Everly, 150 Pa. 117 368 Page Hopkins v. Phillips, 76 Pa. Super. 243 56 Hopple V. Hutchinson, 44 W. N. C. 441 153 Horner v. Hasbrouck, 41 Pa. 169 209 Horstman v. Gerker, 49 Pa. 282 126-136 Hostetter's Petition, 57 Pa. Super 601 338 Hough V. Eose, 10 West. 80 . . 37 Houser v. Houser, 268 Pa. 401 274 Hoy V. Holt, 91 Pa. 88 323 Huber v. Baum, 152 Pa. 626 . . 320 Hughes v. Antill, 23 Pa. Super. 290 61 Hughes V. Stevens, 36 Pa. 320 213 Hughs V. LUlibridge, 8 Dist. Eep. 358 325 Hughs V. Pickering, 14 Pa. 297 215 Hultz V. Aekley, 63 Pa. 142.. 167 Hunters Estate, 257 Pa. 32 .. 134 Ihmsen o. Huston, 247 Pa. 403 39-40 ImhofE V. Witmer, 31 Pa. 243 . . 25 Imperial Fire Ins. Co. v. Dun- ham, 117 Pa. 460 53 IngersoU v. Sargent, 1 Whart. 337 146-152 Ingles v. Bringhurst, 1 Dall. 431 303 Iron City Auto Co. v. Pitts- burgh, 253 Pa. 478 ..226-228-319 Irwin V. Bank, 1 Pa. 349 156 Irwin V. Hanthorn, 1 Pa. Super. 149 136 Isaacs V. Zugsmith, 103 Pa. 77 367 laett V. Maclay, 265 Pa. 165. . 76 Isman v. Hanseom, 217 Pa. 133 349 Jack V. Hixon, 23 Pa. Super. 453 55 Jackman v. Eosenbaum Co., 263 Pa. 158 301-302 Jackson v. Gunton, 26 Pa. Super. 203 192 606 Conveyancing in Pennsylvania. Page Jackson v. Myers, 257 Pa. 104 264 Jackson v. Stewart, 31 Pa. Super. 58 323, 340 Jacobs V. Water Snpply Co., 220 Pa. 388 224 Jaekel v. Caldwell, 156 Pa. 266 366 James v. Borner, 273 Pa. 6 . . 342 Jamison v. Dimock, 95 Pa. 52 60-166 Jaques v. "Weeks, 7 "Watts 261 . 166 Jennings v. Bloomfield, 199 Pa. 638 166 Jennings v. McComb, 112 Pa. 518 323 Johnson v. McCurdy, 83 Pa. 282 105-126 Johnson v. Smith, 3 P. & "W. 496 64 Johnston v. Irwin, 3 S. & E. 291 213 Jones' Estate, 211 Pa. 364.. 278-284 Jones V. Erie E. E. Co., 151 Pa. 30 232 Jones D. Knoll, 116 Pa. 85 310 Jordan's Estate, 161 Pa. 393 . 275 Jordan v. Stewart, 23 Pa. 244 92 Joyce's Estate, 273 Pa. 404 .. 278 KanawiLL v. Miller, 262 Pa. 9 . 89 Kaiser 's Estate, 199 Pa. 269 . . 259 Karchner v. Hoy, 151 Pa. 383 . 82 Kauffelt V. Bower, 7 S. & E. 64 53-122 Kearney v. Tanner, 17 S. & E. 94 134 Keating v. Condon, 68 Pa. 75 . 312 Keily v. Saunders, 236 Pa. 593 55 Keller v. Lawson, 261 Pa. 489. . 270 Keller v. Nutz, 5 S. & E. 246. . 164 Kelly V. Marshall, 172 Pa. 396 367 Kenege v. Elliot, 9 "Watts 258 158-182 Kennedy v. Baker, 159 Pa. 146 116 Kennedy v. Borie, 166 Pa. 360. 142 Kenney's Appeal, 22 "W. N. C. 89 348 Kessler's Estate, 221 Pa. 314 . 273 Page Kester v. Eockel, 2 "W. & S. 365 424 Ketcham v. Land Title & T. Co. 237 Pa. 391 188 Keys V. Johnson, 68 Pa. 43 358, 362 KOe V. Giebner, 114 Pa. 381 . . 312 KDle V. Ege, 79 Pa. 15 217 King V. Association, 106 Pa. 165 48-64 Kingston Proprietors v. Coal Co., 236 Pa. 350 320 Kirk 's Appeal, 87 Pa. 243 . . 140-188 Kirk V. King, 3 Pa. 436 36 Kirk V. Van Horn, 265 Pa. 549 189 Kirkby v. Fitzpatrick, 168 Pa. 434 301 Kleekner v. Kleckner, 212 Pa. 515 26 Kleeman v. Klemlherer, 3 Kulp. 481 320 Klenke's Estate, 210 Pa. 572 . 13 Knappenberger v. Fairchild, 210 Pa. 173 304 Knepper v. Kurtz, 58 Pa. 480 84 Knight v. Beenken, 30 Pa. 372 302 Knop's Estate, 131 Pa. 220 .. 271 Knorr u. PhUa. etc. R. E. Co., 5 "Whart. 256 234 Kuouff V. Thompson, 16 Pa. 357 165 Knowles v. Kennedy, 82 Pa. 445 99 Koch 0. Dunkel, 90 Pa. 264 . . 298 Korman v. Trainer, 258 Pa. 362 57 Korson v. Nixon, 45 Pa. Super. 343 329 Kramer v. Slattery, 73 Pa. Super. 361 204 Kranczumas v. Hoban, 221 Pa, 212 37 Krause's Appeal, 2 "Whart. 398 312" Kreiter v. Bigler, 101 Pa. 94 . . 297 Krewson v. Fisher, 78 Pa, Super. 509 366, 367 Kribbs v. Downing, 25 Pa. 399 182 Kroeger v. Pitcairn, 101 Pa. 311 36g "W. K. Kuhn Co. v. Fell, 225 Fed. 13 327 Table of Cases Cited. 607 Fage Kunckle v. Wyniok, 1 Ball. 305 152 Kunes v. McCloskey, 115 Pa. 461 205 Kurtz's Estate, 145 Pa. 637 .. 278 Kurtz V. Hoke, 172 Pa. 165 . . 221 Kustus I'. Hager, 269 Pa. 103 . 270 Ladley v. Creightou, 70 Pa. 490 113 Laird v. Hiester, 24 Pa. 452 . . 205 Lamon v. Eodgers, 42 Pa. Super. 437 217 Lancaster v. Dolan, 1 Eawle 231 28-165 Lance v. Gorman, 136 Pa. 200 423 Landis' Appeal, 102 Pa. 467 . 216 Landon v. Brown, 160 Pa. 538 91 Lane v. Eeynard, 2 S. & E. 65. 15 Lawman's Estate, 272 Pa. 237 286 Lawtou's Estate, 266 Pa. 558 259 Lazarus v. Morris, 212 Pa. 128 22-225 Lea V. Hopkins, 7 Pa. 492 ... 187 Leaf's Appeal, 105 Pa. 505 .. 40 Leaf V. Penna. Co., 268 Pa. 579 293 Lee V. Jones, 209 Pa. 22 303 Leech v. Leech, 1 PhUa. 244 . . 270 Leedom's Estate, 4 Del. Co. 418 278 Leeds v. Artzt, 2 W. N. C. 507 193 Leeds v. Bender, 6 W. & S. 315 213 Leggate v. Korn, 74 Pa. Super. 383 138 Lehigh Valley E. Co. v. Trone, 28 Pa. 206 294 Lehman v. Paxton, 7 Pa. Super. 259 47-84 Lessee of Foster v. Whitehill, 2 Teates 259 178 Levine v. McClenathan, 246 Pa. 374 320 Lewin v. Pauli, 19 Pa. Super. 447 321 Lewis V. Merryman, 271 Pa. 255 90 Lewis V. Parrott, 37 "W. N. C. 330 259 Lewis V. Wyalusiug, Etc. Co. 62 Pa. Superior Ct. 282 207,397 Fage Lieberman v. Colahan, 267 Pa. 102 361 Lieberman v. Eeichard, 7 North. 237 127 Liederkranz Society v. Turn Verein, 163 Pa. 265 37 Lincoln v. Africa, 228 Pa. 546 59 Lindsay v. Curtis Pub. Co., 236 Pa. 229 65, 348, 349 Line ■;;. E. E. Co., 218 Pa. 604 . 229 Linnard's Appeal, 93 Pa. 313 . 281 Linton v. Moorhead, 209 Pa. 646 21 Liquid Carbonic Co. v. Wallace, 219 Pa. 457 398 Lloyd V. Cozens, 2 Ash. 131 . . 335 Lodge V. Patterson, 3 Watts 74 216-217 Logan V. NeiU, 1^8 Pa. 457 . . 99 Long V. Fitzimmons, 1 W. & S. 530 321 Long V. Eamsey, 1 S. & E. 72. 89 Longwell v. Bentley, 23 Pa. 99 52 Lorah v. Nissley, 156 Pa. 329. 71 Lowe's Estate, 35 Pitts. L. J. 181 274 Luce V. Cook, 227 Pa. 224 359 Ludwig V. Highley, 5 Pa. 132 . 164 Lyle V. Armstrong, 235 Pa. 227 192 Lyons v. P. & E. Ey. Co., 209 Pa. 550 311 Lynch v. Cox, 23 Pa. 265 218 MacConnell v. Lindsay, 131 Pa. 476 28 MoAnniny v. Miller, 19 Pa. Super. 406 324 McCall V. Lenox, 9 S. & E. 302 142 McCall V. Neely, 3 Watts 69 . 214 McCallum 's Estate, 211 Pa. 205 9 McCarher v. Commonwealth, 5 W. & S. 21 394 McCleary v. Stoup, 32 Pa. Super. 42 53 McClintock v. South Perm Oil Co., 146 Pa. 144 50 McCloskey v. Timmons, 74 Pa. Super. 19 17 608' Conveyancing in Pennsylvania. Page McClure v. Jones, 121 Pa. 550. 63 McClurg V. Showartz, 87 Pa. 521 116 McGollum V. Shook, 228 Pa. 28 58 MeComb's Appeal, 43 Pa. 435. 328 MeCormick v. Coimell, 6 S. & E. 151 157 McCoy V. Niblick, 228 Pa. 342 . 61 MeCrossan v. Eeilly, 33 Pa. Super. 628 329 McDevitt V. Gas Co., 160 Pa. 367 232 McDonough v. Barnes, 77 Pa. Super. 334 ISS"" McGunnegle v. Pittsburgh, etc. E. E. Co., 213 Pa. 383 ' 294 McKay v. Meyer Co., 44 Pa. Super. 293 65 McKim V. Burke, 57 Pa. Super. 530 348 McKinley v. Jute Co., 230 Pa. 122 323 McMahan v. McMahan, 13 Pa. 376 181 McMahon v. Eyan, 20 Pa. 329. 270 McMullen v. Wenner, 16 S. & E. 18 53 MoNair v. Compton, 35 Pa. 23 55 McNeile v. Cridland, 168 Pa. 16 366 McPherran's Estate, 212 Pa. 425 76-86 McQuesney v. Hiester, 33 Pa. 435 153-159 MeSorley v. Allen, 36 Super. 271 322 Maclay v. Work, 5 Binn. 154 . . 162 Maffitt u. Rynd, 69 Pa. 380 . . 105 Magaw V. Lambert, 3 Pa. 444 . . 323 Maguire v. Eealty Co., 257 Pa. 48 92 Maitland v. Martin, 86 Pa. 120 366 M 'f grs ' Bank v. Bank of Pa., 7 W. & S. 335 173 Manzer v. Wycoff, 78 Pa. Super. 560 288 Margulis o. Knoell, 75 Pa. Super. 228 362 Page Marple v. Brister, 63 Pa. Super. 470 349 Marshall v. Eeed, 32 Pa. Super. 60 365 Martin 's Appeal, 97 Pa. 85 . . 135 Matthews Appeal, 104 Pa. 444 350 Matthews v. Sharp, 99 Pa. 560 61 Mawle V. Ashmead, 20 Pa. 482 317 Maxwell v. West, 23 Pa. C. C. 302 365 Mayard v. Shaw, 246 Pa. 330. 112 Mays Estate, 218 Pa. 64 . . 133-154 Medara v. DuBois, 187 Pa. 431 301 Medoff V. Vandersaal, 271 Pa. 169 56 Meehau v. Williams, 48 Pa. 238 166 Meigs V. Tunnieliffe, 214 Pa. 495 141 Meily v. Wood, 71 Pa. 488 . . 39 Mellon 's Appeal, 32 Pa. 121 .. 174 M?llor V. City, 160 Pa. 614 ... 232 Meneke v. Eosenberg, 202 Pa. 131 192 Mercy Hospital v. MeCarteen, 247 Pa. 328 190 Merriman v. Moore, 90 Pa. 78 153 Merritt v. Whitlock, 200 Pa. 50 11-12 Mershon's Estate, 8 Dist. Eep. 154 198 Messer"!). Ehodes, 3 Brewst. 180 80 Mevey 's Appeal, 4 Pa. 80 ... 135 Meyer's Estate, 232 Pa. 89 . . 12 Middleton v. Thompson, 163 Pa. 112 362 Miles 's Estate, 272 Pa. 329 243-254 Miller v. Kenneck, 20 Dist. Eep. 706 361 Miller v. Shaw, 7 S. & R. 129 . 212 Miller v. Shaeffer, 75 Pa. Super. 584 288 Milligau's Appeal, 104 Pa. 503 135 Mineral E. E. Co. v. Flaherty, 24 Super. 236 350 Ministers of Lutheran Congrega- tion V. Limehouse, 19 Dist. Eep. 199 152 Mitchell V. Phillips, 236 Pa. 311 29 Table of Cases Cited. 609 Fage Mitcheson v. Earth, 38 Pa. Super. 468 344 Mobley v. Bruner, 59 Pa. 481 . 181 Mode 's Estate, 76 Pa. 502 . . 112 Monroe v. Conroy, 1 Phila. 441 302 Moore v. Collishaw, 10 Pa. 224 215 Moore v. Dixon, 94 Pa. 53. .217, 350 Moore v. Grow, 1 Pa. Super. 125 365 Moore v. Miller, 8 Pa. 272 ... 313 Moore v. Taylor, 29 W. N. C. 495 64 Moore v. Weber, 71 Pa. 429 . . 321 Morel V. Morel, 76 Pa. Super. 455 316 Morgan v. Scott, 26 Pa. 51 . . 52 Morgan v. Williams, 39 Pa. Super. S80 311 Morris v. Del. E. E. Co., 218 Pa. 88 206 Morse v. Eollins, 121 Pa. 537 . 298 Moss' Appeal, 35 Pa. 162 327 Mott V. Clark, 9 Pa. 399 130 Moudy Mfg. Co. v. Penna. E. E. Co., 215 Pa. 110 227 Meyer's Appeal, 105 Pa. 432. 60 Muirhead v. Clabby, 7 Phila. 345 257 Murray v. Vaughn, 2 Dauphin Co. 354 330 Murtland v. English, 214 Pa. 325 342 Mutual Building Assn. v. Wil- cox, 273 Pa. 385 337 Myers v. Crook, 271 Pa. 399 . . 201 Myers v. Elmer, 17 Dist. Eep. 413 350 Myers v. P. E. E. Co., 245 Pa. 534 229 Myerstown Bank v. Eoessler, 186 Pa. 431 126 Nace V. Boyer, 30 Pa. 99 26 Nailer v. Stanley, 10 S. & E. 450 135 Napier v. Darlington, 70 Pa. 64 56 Nathan v. Sinclair, 65 Pa. Super. 237 340 39 Fage National Bank of Catasauqua v. North, 160 Pa. 303 65 National Oil Eefining Co. v. Bush, 88 Pa. 335 315 National Publishing Assn. v. Shupe Co., 18 W. N. C. 379. 337 Neale v. Dempster, 179 Pa. 569 105 Negley v. Lindsay, 67 Pa. 217 77-217-424 Neville v. Kretzschmar, 271 Pa. 222 134 Newliu's Estate, 209 Pa. 456 . 283 Newman v. Eutter, 8 Watts 51 158 Nicholas v. Machine Co., 7 North. 137 89 Nice's Appeal, 54 Pa. 200 174 Noble V. Becker, 3 Brewst. 550 335 North Penna. E. E. Co. v. P. & E. Ey. Co., 249 Pa. 326 326 Nulton V. Nulton, 247 Pa. 572 . 220 Nye 's Appeal, 126 Pa. 341 ... 259 O'Connor's Estate, 273 Pa. 391 271 O'Maley v. Pugliese, 272 Pa. 356 128-143 Oakford v. Nixon, 117 Pa. 76. . 318 Octoraro Water Co. v. Garri- son, 271 Pa. 421 183 Olewine ■;;. Messmore, 128 Pa. 470 ". 214-216 Old Colony Trust Co. v. Allen- town Transit Co., 192 Pa. 596 133 Oliver v. Wheeler, 26 Pa. Super. 5 328 Opening of Brooklyn St., In re., 118 Pa. 640 237 Ormsby v. Pinkerton, 159 Pa. 458 80 Orr V. Greimer, 254 Pa. 308 . . 55 Overdeer v. Lewis, 1 W. & S. 90 311, 343 Overmyer v. Nichols, 6 Binn. 159 322 Owens V. Wehrle, 14 Pa. Super. 586 362 Page V. Carr, 232 Pa. 371 121 610 Conveyancing in Pennsylvania. Page P. E. E. V. Lippinoott, 116 Pa. 472 229 P. E. E. Co. V. Marehant, 119 Pa. 541 229 P. E. E. V. Ziemer, 124 Pa. 560 232 Page V. Middleton, 118 Pa. 546 328 Palairet's Appeal, 67 Pa. 479 151-224 Palairet v. Snyder, 106 Pa. 227 151 Palethorp's Estate, 249 Pa. 389 275 Pancake v. Cauffman, 114 Pa. 113 174 Paneoast v. Hagaman, 4 Leg. & Ins. Eep. 75 156-210 Parish v. Koons, 1 Pars. 78 . . 50-367 Park V. Neeley, 90 Pa. 52 . . . 74 Parker & Keller 's Appeal, 5 Pa. 390 328 Parkway Case, 250 Pa. 257 ... 231 Parry v. Cambria E. E. Co., 247 Pa. 169 228 Parry v. Miller, 247 Pa. 45 . . . 59 Patrick's Appeal, 105 Pa. 356 126 Patterson v. Judge, 17 W. N. C. 127 136 Patterson v. Harlan, 124 Pa. 67 110 Paul V. Carver, 26 Pa. 223 ... 299 Paxson V. Potter, 30 Pa. Super. 615 323 Pearson v. Hoovler, 44 Pa. C. C. 596 120 Peffer v. Deakyne, 212 Pa. 181 57 Penna. Co. v. Bodek, 77 Pa. Super. 473 323 Penna. Co. v. Holpern, 273 Pa. 451 208 Penna. Co. v. Phila., 268 Pa. 559 227 Pennsylvania etc. Co. v. Sing- heiser, 235 Pa. 241 155 Penna. Hospital v. Philadelphia, 254 Pa. 392 225 Penna. S. V. E. Co. ii. Ziemer, 124 Pa. 560 233 Peoples Savings Bank i;. Alex- ander, 140 Pa. 22 333 Page Peoples Street Ey. Co. v. Spen- cer, 156 Pa. 85 312 Pepper 's Estate, 148 Pa. 5 . . 273 Pepper v. Watts, 7 Lane. L. E. 241 164 Peters v. Grubb, 21 Pa. 455 . . 318 Phila. V. Anderson, 142 Pa. 357 205 Phila. V. Johnson, 208 Pa. 645 346 Phila. V. Smith, 25 Pa. Superior Ct. 450 205 Phila. V. Unknown Owner, 20 Pa. Superior Ct. 203 205 Phila. City Ey. Co. v. P. E. T. Co., 263 Pa. 561 326 Philadelphia etc. E. E. Co. v. Woelpper, 64 Pa. 366 112-113 Phila. Trust Co.. v. Eoberta, 14 W. N. C. 123 367 Phillip's Estate, 10 Dist. Eep. 99 196 Phillips V. Crist, 33 Pa. Super. 445 299 Phillips V. St. Clair Incline Plane Co., 166 Pa. 21 236 Phipps V. Jones, 20 Pa. 260 . . 37 Pickering v. Breen, 31 Pa. Super. 280 330 Pickering v. Stapler, 5 S. & E. 106 80 Pittsburgh etc. E. E. Co. v. Bruce, 102 Pa. 23 225 Pittsburgh etc. E. E. Co. v. Jones, 111 Pa. 204 234 Postlethwait v. Frease, 31 Pa. 472 60 Powell 's Appeal, 98 Pa. 403 . . 179 Powell V. Blair, 133 Pa. 550 . . 118 Powers V. Black, 159 Pa. 153 . 364 Pratt V. Eby, 67 Pa. 396 220 Presbyterian Corporation v. Wallace, 3 Eawle 109 105 Prouty V. Marshall, 225; Pa. 570 165-172 Pryor v. Wood, 31 Pa. 142 .. 126 Pyles V. Brown, 189 Pa. 164 . . 164 Quicksal v. Philadelphia, 177 Pa. 301 237 Table of Cases Cited. 611 Page Quinn v. McCarty, 81 Pa. 475. 337 Eamsay v. Shriner, 13 D. R. 641 187 Eamsdell v. Seybert, 27 Pa. Super. 183 331 Eandall v. Dunlap, 218 Pa. 210 283 Eea V. Eagle T'ransfer Co., 201 Pa. 273 325 Eeagle v. Eeagle, 179 Pa. 89 29-217 Eeal Estate Trust Co. v. Hat- ton, 194 Pa. 449 107 Beaney v. Pannessy, 14 W. N. C. 91 339 Eeek v. Clapp, 1 Pennypaeker 339 169 Eeetor of St. Bartholomew's Church V. Wood, 80 Pa. 219 193 Eedemptorist Fathers v. Law- ler, 205 Pa. 24 9 Eeed v. Lukens, 44 Pa. 200 . . 53 Eeed v. Ward, 22 Pa. 144 . . 152 Eeel V. Elder, 62 Pa. 308 259 Eeighard's Estate, 192 Pa. 108 17 Reimer v. Stuber, 20 Pa. 458 221 Eeinboth v. Zerbe Eun Co., 29 Pa. 139 206 Eeineman v. Moon, 29 Pitts. L. J. (0. 8.) 167 127 Eeineman v. Eobb, 98 Pa. 474 129 Eeisz 's Appeal, 73 Pa. 485 ... 56 Ehodes' Estate, 232 Pa. 489 . 12 Rich's Estate, 49 Pitts. L. J. 156 278 Richardson's Estate, 132 Pa. 292 258 Richardson v. McKeesport, 18 Pa. Super. 199 236 Riddles' Appeal, 37 Pa. 177 .. . 209 Riddle v. Hall, 99 Pa. 116 . . 126 Ridgway v. Ry. Co., 244 Pa. 282 233 Riggs V. New Castle, 229 Pa. 490 76 Eigler v. Cloud, 14 Pa. 361 ... 261 Eineer v. Collins, 156 Pa. 342 58 Ritter v. Seiger, 105 Pa. 400 . 303 Page Ritzman v. Spencer, 5 D. R. 224 164 Robb V. Beaver, 8 W. & S. 107 149 Roberts v. Halstead, 9 Pa. 32 . 130 Roberts v. Shipley, 2 W. N. C. 406 305 Robinson v. Allegheny Co., 7 Pa. 161 160 Robinson v. Atlantic etc. R. R. Co., 66 Pa. 160 112 Rohrbach v. Sanders, 212 Pa. 636 217 Rook V. Greenewald, 22 Pa. Super. 641 219 Root V. Commonwealth, 98 Pa. 170 222 Root V. Crock, 7 Pa. 378 99 Rosenberger v. Hallowell, 35 Pa. 369 335 Ross V. Barker, 5 Watts 391 . . 182 Eoss V. Dysart, 33 Pa. 452 ... 319 Eouzer 's Estate, 267 Pa. 323 . . 273 Eoyer v. Ake, 3 P. & W. 461 . . 157 Euchizky v. DeHaven, 97 Pa. 202 27 Eushton V. Lippincott, 119 Pa. 13 142 Sachse's Estate, 26 Dist. Eep. 709 312, 354 Sachse v. Myers, 15 Pa. Super. 425 153 Safron v. McBurliey, 269 Pa. 392 56 Saler v. Lessy, 76 Pa. Super. 15 56 Salter o. Acker Co., 62 Pa. Super. 207 39" Salter v. Eeed, 15 Pa. 260 . . 162 Sample v. Horlaeker, 177 Pa. 247 60 Samuels v. Luckenbach, 205 Pa. 428 360 Sanders v. Brock, 230 Pa. 609 58 Saunders v. Gould, 134 Pa. 445 210 Saunders v. Wagonseller, 19 Pa. 248 76 Schalls' Appeal, 40 Pa. 170 .. 210 612 Conveyancing in Pennsylvania. Page Sehall V. WiUiams Valley E. E. Co., 35 Pa. 191 220 Schell V. Stein, 76 Pa. 398 172 Schenley v. Commonwealth, 36 Pa. 29 222-236 Sehomaker i;. Heinz, 77 Pa. Super. 30 320 Schrack v. Shriver, 100 Pa. 451 141 Schrack v. Zubler, 34 Pa. 38 . . 215 Schropp V. ShaefEer, 2 Dist. Eept. 362 196 Schwartz's Estate, 168 Pa. 204 195 Schweitzer v. Williams, 43 Pa. Super. 202 350 Schuylkill County v. Copley, 67 Pa. 386 87 Schuylkill etc. E. E. Co. v. Schmoele, 57 Pa. 271 319 Schurr v. Warnick, 11 Dist. Eep. 1 361 Scofield V. Wallace, 56 Pitts. L. J. (0. S.) 41 165 Scott's Estate, 147 Pa. 89 .. 271 Scott V. Crosdale, 2 Dallas 127 259 Scott v. Douora Southern Eail- road Co., 222 Pa. 634 ...218-239 Scott V. Fox Optical Co., 38 Pitts. L. J. 368 319 Scott V. Gallagher, 14 S. & E. 333 217 Seabury v. Insurance Co., 205 Pa. 234 I Sears v. Trust Co., 228 Pa. 126 90 Seeger v. Pettit, 77 Pa. 437 . . 347 Seidler v. Wain, 266 Pa. 361 . 81 Seiter's Estate, 265 Pa. 202.271-273 Semple v. Burd, 7 S. & E. 285 175 Shaber v. Button, 6 Phila. 185. 220 Shaffer v. Lauria, 50 Pa. Super. 135 215 Shaffer v. Sutton, 5 Binn. 228 327 Share v. Anderson, 7 S. & E. 43 96 Shaw V. Boyd, 5 S. & E. 309 . 27 Shestack's Estate, 267 Pa. 115 283 Shevalier v. Telegraph Co., 22 Pa. Super. 506 233 Shimer v. Easton Ey Co., 205 Pa. 648 228 Page Shinzel v. Bell Telephone Co., 31 Pa. Super. 221 233 Shitz v. Dieffenbach, 3 Pa. 233 108, 123 Shomayin v. Moss, 22 Pa. Super. 356 37 Shrunk v. Schuylkill Nav. Co., 14 S. & E. 71 294 Shupe V. Eainey, 255 Pa. 432 257 Sidley v. Wallers, 5 Watts 389 208 Simons' Estate, 20 Pa. Super. 450 30 Simpson v. Kerkeslager, 41 Pa. Super. 347 368 Singer's Estate, 233 Pa. 55 .. 259 Singer v. Sheriff, 28 Pa. Super. 305 325 Singer v. Solomon, 8 Dist. Eep. 402 49-64 Sloan's Estate, 254 Pa. 346 .. 13 Smaltz 's Appeal, 99 Pa. 310 . . 56 Smilie v. Biffle, 2 Pa. 52 ... 219 Smith's Estate, 2 Pa. C. C. 626 274 Smith V. Beales, 33 Pa. Super. 570 271 Smith V. Danielson, 45 Pa. Super. 125 134 Smith V. Johnson, 7B Pa. 191 . 304 Smith V. Markland, 223 Pa. 605 169 Smith V. Union Switch Co., 17 Pa. Super. 444 236 Smith V. Young, 259 Pa. 367 168-176 Smoulter v. Boyd, 209 Pa. 146 300 Smucker v. Grinberg, 27 Pa. Super. 531 339 Socket V. Norristown T. Co., 62 Super. 542 232 Solms' Estate, 253 Pa. 296 ... 278 Soper V. Guernsey, 71 Pa. 219 107 South Twelfth St., In re. 217 Pa. 362 230 Southwestern Normal School's Case, 213 Pa. 244 225 Sowney v. Bair, 269 Pa. 448 . 362 Spackman's Estate, 16 W. N. C. 79 316 Table of Cases Cited. 613 Page Spangler's Estate, 4 W. N. C. 74 196 Spencer v. Carlisle Borough, 63 Pa. Super. 513 299 Srolovitz V. Margulis, 35 Pa. Super. 252 17 Stamets v. Denuiston, 193 Pa. 548 367 St. Vincents' Congregation v. Coal Co., 221 Pa. 349 312 Stark V. Coal Company, 241 Pa. 597 214-216 State Highway "Route 72, 265 Pa. 369 226 Stephen's Appeal, 8 W. & S. 186 52 Stephens v. Barnes, 30 Pa. Super. 127 58 Stephens v. Huss, 54 Pa. 20 . . 91 Stephens v. Leach, 19 Pa. 262 215 Sterling's Appeal, 111 Pa. 35. 233 Stern v. Stanton, 184 Pa. 468 329 Sterrett v. Wright, 27 Pa. 259 315 Stewart v. Dampman, 4 Pa. Super. 540 174 Stinson's Estate, 228 Pa. 475 . 273 Stinson's Estate, 232 Pa. 218 . 275 Stiteler v. Ditzenberger, 45 Pa. Super. 266 369 Stock V. German Press Co., 230 Pa. 127 113 Stoflitt V. TroxeU, 8 "W. & S. 340 182 Stokes V. Ry. Co., 214 Pa. 415 229 Stonecipher v. Keane, 268 Pa. 540 54-166-167 Streaper v. Fisher, 1 Eawle 155 153 Streeper v. Williams, 48 Pa. 450 57 Stroud V. Lockhart,- 4 DaU. *page 153 166-173 Stuckey v. Keefe, 26 Pa. 397. . 11 Sulzner v. Cappeau Lemly etc., Co., 234 Pa. 162 27 Supplee V. Timothy, 124 Pa. 375 342 Susquehanna Coal Co. v. Quick, 61 Pa. 328 179 Page Susquehanna B. B. Co. v. Quick, 68 Pa. 189 215 Swaney v. Doumont, 44 Pa. Super. 49 331 Swank v. PhUlips, 113 Pa. 482 166 Sylvester v. Boon, 132 Pa. 467 50 Taylor v. Glaser, 2 S. & B. 501 89 Thomas v. Harris, 43 Pa. 231 . 260 Thompson 's Estate, 205 Pa. 555 333 Thompson's Estate, 1 Kulp 235 315 Thompson v. Carpenter, 4 Pa. 132 53 Thompson v. Kauffelt, 110 Pa. 209 215 Thompson v. Lloyd, 49 Pa. 127 271 Thompson v. McKinley, 47 Pa. 353 182 Thompson v. Morrow, 5 S. & B. 289 257 Thompson v. School District, 48 Pa. Super. 607 340 Thompson v. Sheplar, 72 Pa. 160 58 Tiernan v. Eoland, 15 Pa. 440 424 Tiley v. Meyers, 43 Pa. 404 . . 318 Titus V. Bindley, 210 Pa. 121 . . 184 Tourison v. Engard, 30 Pa. Super. 179 315 Townsend v. Boyd, 217 Pa. 386 312, 354 Tressler's Estate, 66 Pa. Super. 547 59 Trutt V. Spotts, 87 Pa. 339 . . 81 Tryon v. Munson, 77 Pa. 250 106-174 Turner v. Eeynolds, 23 Pa. 199 181 Tuttleman v. Beetem, 48 Pa. Super. 345 313 Twenty -second Street, In re. 102 Pa. 108 225 Uhler V. Hutchinson, 23 Pa. 110 175-191 Van Beil v. Brogan, 65 Pa. Super. 384 160 Van Eenssaeler i;". Kearney, 11 How. 297 99 614 Conveyancing in Pennsylvania. Page Van Steuben v. Central E. E. Co., 178 Pa. 367 35 Vernau v. Wilson, 31 Pa. Super. 257 55 Wadas v. Sharp, 27 Pa. Super. 233 332 Wade V. Pittsburgh Tool Co., 40 Pa. Super. 361 322 Waddingtou's Estate, 7 Dist. Eep. 697 196 Wall V. Pittsburgh Harbor Co., 152 Pa. 427 294 Wallace v. Harmstad, 44 Pa. 492 92-157 Wallace v. Harmstad, 15 Pa. 462 108 Walsh V. Phila. Bourse, 32 Pa. Super. 348 329 Walter v. Transue, 22 Pa. Super. 617 311 Wanamaker v. Carter, 22 Pa. Super. 625 328 Warden v. PhUa., 167 Pa. 523. 227 Warne v. Johnson, 48 Pa. Super. 98 362 Warnock & Emlen v. Phila. Tr. Co., 26 D. E. 125 363 Warrell v. Wheeling, etc. E. E. Co., 130 Pa. 600 226 Waterhouse v. Waterhouse, 206 Pa. 433 260 Watmough's Estate, 258 Pa. 22 270 Watson v. Muirhead, 57 Pa. 161 416 Webb V. Eachmil, 75 Pa. Super. 193 . . .'. 359 Weidner v. Poster, 2 P. & W. 23 112-150 Weiss V. So. Bethlehem, 136 Pa. 294 238-240 Welch V. Hanigan, 79 Pa. Super, (page unknown) .... 384 Wells V. Hornish, 3 P. & W. 30 327 Welton V. Little John, 163 Pa. 205 127 Wentz V. De Haven, 1 S. & E. 312 140 Page West Hickory Mining Assn. v. Eeed, 80 Pa. 38 39 Wetherill v. Gallagher, 217 Pa. 635 348 Whelan v. Laird, 56 Pa. Super. 489 333 White's Appeal, 167 Pa. 206. 150 White 's Estate, 209 Pa. 627 . . 199 White 's Estate, 262 Pa. 356 . . 273 Whiting V. Lake, 91 Pa. 349 . . 328 Whiting u. Pittsburgh Opera House Co., 88 Pa. 100 313 Whittaker v. Williams, 7 Leg. & Ins. Eep. 14 424 Wickes Bros. v. Island Park Assn., 229 Pa. 400 48 Wiekey v. Eyster, 58 Pa. 501 . 325 Wikoff 's Appeal, 15 Pa. 281 . . 274 Wiley V. Moor, 17 S. & E. 438 108 Wilkinson v. McCullough, 196 Pa. 205 363 Wilkinson v. Suplee, 166 Pa. 315 239 Willard v. Earley, 22 W. N. C. 122 350 Williams v. Ladew, 171 Pa. 369 311, 343 WUloek V. Beaver Valley E. Co., 229 Pa. 526 & 222 Pa. 590 232-233 Wingate v. Mechanics Bank, 10 Pa. 108 368 Winn V. New Southward Build- ing Assn., 20 Dist. Eep. 625 136, 380 Winters v. DeTurk, 133 Pa. 359 219-258 Withers v. Baird, 7 Watts. 227 96 Wittmer v. Bauer, 14 W. N. C. 304 185 Wolf Co. V. Penna. E. E., 29 Pa. Super. 439 188 Wolff V. Wilson, 28 Pa. Super. 511 368 Wood's Appeal, 82 Pa. 116 .. 174 Wood V. Carson, 257 Pa. 522 . . 320 Table op Cases Cited. 615 Page Page Woods V. Farmee, 7 Watts 382 York Trust Co.'s Petition, 12 398, 423 York 78 196 Woods V. Gas Co., 204 Pa. 606 225 Young v. Dempsey, 67 Pa. Woods V. Heron, 229 Pa. 625 359 Super. 534 362 Workman v. Curran, 89 Pa. 226 221 Youngmau v. Elmira, etc. E. E. Wright V. Nulton, 219 Pa. 253 59 Co., 65 Pa. 278 107 Wunderlich v. P. E. E. Co., 223 Pj^ jj^^ 229 '^^^^ '"• Kennedy, 73 Pa. 182 . 117 Zeisweiss v. James, 63 Pa. 465 36 York Haven Water Co. Appeal, Zimmerman v. Anders, 6 W. & 212 Pa. 622 294 S. 218 37 TABLE OF STATUTES CITED Page. 1688. 1 Sm. L. 8-9, Judgment liens 186 1705. Jan. 12, 1 Sm. L. 57, Sec. 6, Mortgages 108, 144, 192 1716. May 28, 1 Sm. L. 94, Sec. 5, Probate of Deeds 70, 75, 84, 98, 162 May 28, 1 Sm. L. 90, Sec. 8, Assignment 126 May 28, 1 Sm. L. 94, Sec. 9, 10, Mortgages 139 1721. Feb. 24, 1 Sm. L. 124, Party Walls 301 1772. Mar. 21, 1 Sm. L. 389, Frauds 42 Mar. 21, 1 Sm. L. 370, landlord and Tenant 344 Mar. 21, 1 Sm. L. 390, Judgments 186 1776. Mar. 18, 1 Sm. L. 422, Probate of Deeds 98, 162 Mar. 18, 1 Sm. L. 422, Sec. 3, Recording 178 1785. Mar. 26, 2 Sm. L. 300, Sec. 2, Limitations 212 1791. Feb. 28, 3 Sm. L. 4, Aliens 24 1799. Mar. 2, 3 Sm. L. 358, Judgments 187 April 11, 3 Sm. L. 386, Equity 185 1812. Mar. 31, 5 Sm. L. 395, Joint Tenancy 9, 10, 11 1818. Mar. 24, 8 Sm. L. 132, Sec. 5, Assignees for Creditors 176, 198 1820. Mar. 28, 7 Sm. L. 303, Recording Mortgages 173 1822. April 2, 7 Sm. L. 549, Sec. 1, Recording 179 1823. Mar. 31, 8 Sm. L. 131, Mortgages 139 Mar. 31, P. L. 216, Sec. 2, Recording 179 1828. AprU 15, P. L. 490, Sec. 1, Recording 179 1830. AprU 3, P. L. 187, landlord and Tenant 344 616 Table of Statutes Cited. 617 Fage. 1831. Feb. 6, P. L., Churches 37 1833. April 6, P. L. 167, Escheat 33 AprU 8, P. L. 315, Intestates 256 1836. June 14, P. L. 630, Assignees for Creditors 198 June 16, P. L. 755, Sheriff's Sales 190 June 16, P. L. 783, Landlord and Tenant 208 June 16, P. L. 785, Sec. 13, Specific Performance 184 1846. Mar. 14, P. L. 124, See. 1, Kecording 177, 178, 179 1847. Mar. 9, P. L. 278, Sec. 1, Recording 178 1849. April 9, P. L. 525, Sec. 14, Recording 175 Jan. 23, P. L. 686, Judicial Sale 156 Feb. 19, P. L. 79, Eminent Domain; Railroads 225, 233 April 5, P. L. 344, Sec. 2, Recording 177 April 9, P. L. 525, Sec. 14, Recording 177 AprU 10, P. L. 600, Party Walls 302 1850. April 22, P. L. 549, Courtesy; Judgment 261 April 25, p. L. 569, Sec. 8, Ground Rents 149 April 25, p. L. 569, Sec. 21, Prescriptive Easements 221 April 25, P. L. 569, Sec. 33, Recording 178 1851. AprU 3, P. L. 871, Sec. 14, Mortgages 139 1854. AprU 26, P. L. 501, Sec. 1, Recording 179 May 6, P. L. 603, See. 1, Recording 177, 179 Dec. 14, P. L. (1855) 724, See. 1, Recording 177, 179 Dec. 14, P. L. (1855) 724, Sec. 3, Recording 176-8 Dec. 14, P. L. 572, Acknowledgments 96 1855. AprU 26, P. L. 328, Sec. 10, 11, Witnesses; Charities 36, 89 AprU 27, P. L. 368, Sec. 7, Ground Rents 155 May 4, P. L. 430, Sec. 2, Feme Sole Trader 29, 30 1856. AprU 11, P. L. 304, Mortgages 139 AprU 22, P. L. 532, See. 1, limitations 218 1857. Feb. 14, P. L. 39, Equity; Specific Performance 184, 185 AprU 8, P. L. 175, Ground Rents 160 618 Conveyancing in Pennsylvania. Page. 1869. April 13, P. L. 603, Limitations; Ejectment 219 1861. April 18, P. L. 408, Exemption from Distress 352 May 1, P. L. 433, Aliens 24 1863. AprU 1, P. L. 212, Curtesy 261 Dec. 14, P. L. (1864) 1125, landlord and Tenant 344 1864. Mar. 21, P. L. 171, locality Index 397 Aug. 10, P. L. 962, Recording 177 1866. May 17, P. L. 1085, Recording 177, 178 1868. April 8, P. L. 73, Sec. 1, Recording 177 1869. Feb. 26, P. L. 3, Ground Rents 156 April 15, P. L. 47, Ground Rents; Eminent Domain 224 1870. Jan. 26, P. L. 13, Sec. 1, Recording 177 1871. June 6, P. L. 1353, Streets; Dedication 238 1872. April 2, P. L. 31, Adoption 255 1874. AprU 29, P. L. 73, Corporations 33, 34, 117, 188, 228, 233 1875. Mar. 18, P. L. 32, Recording 171 1876. Feb. 17, P. L. 4, Assignee for Creditors 199 April 17, P. L. 36, Sec. 9, Real Estate Companies 34 May 13, P. L. 161, Sec. 8, Banks 34 1878. May 25, P. L. 151, Mortgages 162, 168 May 25, P. L. 152, See. 1, Mortgages; Married Women 115 May 25, P. L. 155, Probate of Deeds 98 June 12, P. L. 205, Deeds; Mortgages, Ground Rents .133, 134, 149, 153 1879. April 10, P. L. 16, See. 4, 5, B. and I. Associations 136 May 13, P. L. 60, Charitable Corporations 34 June 11, P. L. 141, Mortgages 139 Table of Statutes Cited. 619 Page. 1881. June 8, P. L. 84, Mortgages; Separate Defeasance 122 June 10, P. L. 97, Mortgages 139 1883. June 20, P. L. 138, Mortgages 139 1885. April 22, P. L. 553, Ground Rent 151 June 24, P. L. 158, Mortgages 137 July 7, P. L. 257, Equity 185 1889. May 2, P. L. 66, Escheat 291, 292 May 8, P. L. 10, Rule to Bring Ejectment 183 May 9, P. L. 159, Title Insurance Companies 34 May 9, P. L. 173, Dedication 238 May 23, P. L. 294, Party Walls 301 1891. May 20, P. L. 102, Chattel Mortgages 112 1893. May 19, P. L. 108, Recording 162, 163, 167 June 6, P. L. 329, Recording 178 June 8, P. L. 344, Sec. 5, Married Women 28, 115 June 17, P. L. 415, Cloud on Title 183 1895. May 8, P. L. 44, Mortgages; Ground Rents 139 June 7, P. L. 139, Party Walls 301 June 7, P. L. 140, Party Walls 302 June 24, P. L. 264, Escheat 24, 291 June 25, P. L. 282, Exemption from Distress 329 1897. May 25, P. L. 83, Sec. 1, Recording 178 June 9, P. L. 212, Married Women; Mortgage; Deed 115 1899. April 28, P. L. 123, Recording 178 1901. Feb. 9, P. L. 3, Corporation Mortgages 35 Mar. 7, P. L. 44, Party Walls 301 April 4, P. L. 67, Acknowledgment; Married Women 93 April 4, P. L. 70, Notaries Public 95, 96 April 19, P. L. 83, Specific Performance 184 May 8, P. L. 141, liens 207, 208 May 11, P. L. 171, Acknowledgment; Corporations 93 May 29, P. L. 302, Easement; Fishing 294 May 31, P. L. 352, Recording; Deeds 117, 220 June 4, P. L. 67, Acknowledgment; Married Women 115 June 4, P. L. 364, Taxes; Muicipal Claims; liens 202 620 June 4, P. L. June 4, P. L. June 25, P. L. Mar. 24, P. L. Mar. 26, P. L. Mar. 26, P. L. April 15, P. L. April 16, P. L. AprU 28, P. L. Mar. 31, P. L. April 8, P. L. April 14, P. L. AprU 20, P. L. AprU 22, P. L. AprU 22, P. L. April 25, P. L. May 2, P. L May 23, P. L May 28, P. L Mar. 24, P. L. AprU 1, P. L. April 1, P. L. April 23, P. L. AprU 27, P. L. AprU 29, P. L. May 3, P. L May 3, P. L May 3, P. L Mar. 15, P. L. AprU 21, P. L. May 11, P. L June 1, P. L. June 3, P. L. June 7, P. L. June 8, P. L. May 1, P. L. May 15, P. L. May 20, P. L. June 19, P. L. Conveyancing in Pennstlvanu. Page. 404, according 176, 199 431, Mechanics Liens 121, 188 . 599, Corporation Mortgages 118 1903. 50, Notaries Public 95 63, Taxes; Unseated land 203 67, Escheat 24, 290 200, Banks 34 212, Rule to Bring Ejectment 183 327, Mortgages 132 1905. 87, Landlord and Tenant 340 121, Sheriff's Sales 193 162, Fences 304 329, Sheriff's Sales 193 265, Recording; Sheriff's Deeds 179, 191, 193, 389 280, Corporation Mortgages 35, 117 1907. 122, Eminent Domain 225 159, Recording 176 I. 223, Recording 178 292, Weak-Minded Persons 26, 198 1909. 65, Mechanics' Liens 188 87, Descent; Dower 256 91, See. 1, Deeds 76, 77, 78, 80, 86, 87, 95 137, Mortgages 122 181, Notary Public 95 289, Mortages Ill I. 386, Decedents' Debts 190 . 407, Exemption from Distress 329 . 407, Exemption from Distress 329 1911. . 17, Corporations; Escheat 35 79, Recording 177 . 281, Escheat; Corporations 290, 292 539, Adoption 255 631, Deeds; Husband and Wife 29 702, Wills 89 717, Mortgages 140 1913. . 285, Tax Sales; Seated land 203 . 214, Charitable Corporations 34, 290 . 242, Churches 38 539, Corporations 35 Table of Statutes Cited. 621 Fage. 191S. Mar. 26, P. L. 18, Partnership 8, 14, 38, 39 April 28, P. L. 198, Mortgages 138 May 28, P. L. 299, Adoption 255 May 28, P. L. 631, Purchase Money Mortgages 119 June 1, P. L. 660, Tax Sales; Seated Land 203 June 1, P. L. 685, Eminent Domain 230 June 1, P. L. 701, Charitable Corporations; Escheat 34, 290 1917. May 3, P. L. 113, Exemption from Distress 352 June 7, P. L. 337, Partition Act 185 June 7, P. L. 388, Revised Price Act 196, 199 June 7, P. L. 403, Wills Act 268 June 7, P. L. 415, Register of Wills Act 286 June 7, P. L. 429, Intestate Act 6, 177, 186, 242, 284 June 7, P. L. 447, Fiduciaries Act 31, 40, 186, 194, 197, 262, 263 June 22, P. L. 621, Fences 304, 305 June 22, P. L. 623, Spite Fences \ 305 July 11, P. L. 832, Inheritance Tax 263 July 18, P. L. 1072, Tax Sales 27 July 19, P. L. 1112, Ground Rents 155, 156, 177 1919. April 4, P. L. 49, Recording 178 April 18, P. L. 60, Tax Sales 203 May 8, P. L. 160, Recording 179 May 16, P. L. 180, Tax Sales 206, 207 June 2, P. L. 363, Bankruptcy; Dower 259 June 2, P. L. 364, Recording 177 June 12, P. L. 441, Foreign Corporations 35 June 12, P. L. 442, Corporations 35 June 20, P. L. 521, Inheritance Tax 263 July 10, P. L. 903, Notary Public 97 1921. April 20, P. L. 196, Escheat 35, 290 AprU 21, P. L. 223, Escheat 290 May 4, P. L. 341, Inheritance Tax 264 May 5, P. L. 380, B. and 1. Associations 34 May 17, P. L. 860, Recording 177 May 20, P. L. 937, Wills 283 May 20, P. L. 992, Tax Liens 203 May 24, P. L. 1071, Recording 38, 178 May 24, P. L. 1089, Tax Liens and Sales 202, 206, 209 May 25, P. L. 1124, Escheat 35, 290 INDEX [Eeferences are to sections] ABSTEACT OF TITLE Definition of 386 Form of 386 ACCEPTANCE Of deed, necessary to complete title 89 Of dedication, necessary (see Dedication) 238 Of surrender (see Landlord and Tenant) 334 ACCEETION, TITLE BY Apportionment of land acquired under 294 several methods 294 Basis of 294 Definition of 294 Requires imperceptible change of shore line 294 Rules concerning 294 Sudden change of shore line does not create 294 When acquired 294 ACKNOWLEDGMENT (See Forms) By whom may be taken 95 Clause in deed 83 Date of 94 Defective, makes recording void 176 cured by acts of legislature 94 For bank or trust company should certify that certifying notary is not director, etc 94 How made 92 Meaning of 92 Necessary to record agreement of sale 56 Necessity for, in deeds 92 Notary must append date of expiration of commission 94 Of agreement of sale 56 Of deeds by corporation 92 Of deeds by attorney-in-fact 92 Of deeds by trustee 92 Of deeds executed outside the State 95 Of deeds executed in foreign country 95 Of deeds must be by grantor in person 92 Of deeds necessary before recording 92 Seal of executing officer in acknowledgment 94 Separate, by married women no longer necessary in Pennsylvania 93 but may be in other states 93 Signature of officer 94 Venue 94 622 Index. 623 [Eeferences are to sections] ACKNOWLEDGMENT— Conimwed. Void, if officer taking is interested in conveyance 95 What certificate should contain 94 ADMINISTEATION OF DECEDENT'S ESTATES (See Decedent's Estates) ADMINISTRATOR Accounts of 259 C. T. A 261 D. B. N 261 Duties of 259 Leasehold interest passes to 308 May petition court for leave to sell real estate if not sufficient personalty to pay debts 37, 200, 259 Powers of 259 Real estate does not pass to 37, 259 unless insufficient personalty to pay decedent 's debts .... 200 Recital in deed of 37 Seaichea against ., 373. ADOPTED CHILDREN Adoption of children revokes will pro tanto 278 How adopted 247(2) Eight to inherit 247(2) Rights under will 273 ADVANCEMENTS (See Descent) Effect of 255 Meaning of 255 ADVANCE MONET MORTGAGE (See Mortgage) ADVERSE POSSESSION, TITLE ACQUIRED BY Against whom may not be acquired 213, 214 Averted, how 216 Cannot be acquired against the public 214 Color of title, definition of 209 possession under 209 what constitutes 209 Definition of 206 Dower when Statute of Limitations begins to run against 216 Equitable interest when Statute of Limitations begins to run against 216 Good or bad faith as affecting 207 How may be averted actual eviction necessary 216 ejectment 2^" entry vrithout ejectment of no avail 216 judgment in ejectment without eviction insufficient 216 624 CONVETANCINQ IN PENNSYLVANIA. [References are to sections] ADVEESE POSSESSION, TITLE ACQUIRED BY— Continued. Nature of possession required 207 Nature of title acquired good and perfect 217 claim must be recorded if occupant leaves land 217 marketable 217 Origin of 206 Persons under a disability have thirty years within which to bring an action 215 to whom doctrine applies 215 Possession must be actual 208 what is actual possession 208, 209 actual possession of part under color of title to large tract 209 continuous 210 brief interruption of possession, effect of 210 need not be by one person 211 tacking interests 211 hostile 213 permissive possession cannot be 213 possession by tenant is not 213 possession by tenant in common is not 213 possession by vendor is not 213 visible 212 Prescriptive easements (see Easements) 218 Property of public service companies exempt from 214 Public land exempt from 214 Remainder interests when Statute of Limitations begins to run against 216 Statute of Limitation effect of 207 purpose of 207 Trustees title of cestui que trust barred when legal title barred 216 AFFIDAVITS (See Forms) AFTER-BORN Posthumous children and heirs can inherit 247(3) Revocation of will by children born after date of will 278 AGENTS AND BROKERS Authority of married vendor to be si^ed by both husband and wife 45, 64 Authority to acknowledge agreement of sale by letter of attorney 56 Authority to act 55, 351 may be oral 351 must be written only when agent is to sign agreement . 351 Authority to sign contract of sale or lease must b« written. .... 44, 55 Index. 625 [Eeferencea are to sections] AGENTS AND B'ROKEB.S— Continued. Goiniiiissions of building and loan director not entitled to secret 367 when entitled 347 when not entitled 347 343 Conveyancer and real estate broker compared 344 Definition of real estate broker 344 Effect of not obtaining a license 346 Exclusive agency 347 Must be employed before they can recover commissions 347 Must be licensed 345 amount of license fee 345 Must exercise due diligence and competent skill 347, 348, 353 Must not be disloyal 348 Must not represent both parties 349 unless such fact is disclosed to both 349 Eatification of act of, by principal 55 Reimbursement by principal for expenses or losses suffered in course of agency 350 Relation to client is confidential 348 Eight of principal to cancel agency 347, 352 Signature by, in agreement of sale 44, 55 in leases , 309 Suggestions in drawing agreements of sale 67 Tenant cannot avoid lease on ground that agent had no authority to sign 340 Warranty of authority by agent 353 When entitled to commissions 347 efforts must be fruitful 347 must be contract for commissions 347 contract may be express or implied 347 not necessary that sale actually take place 347 only necessary to produce party satisfactory to principal . . . 347 When not entitled to commissions 347 acting for both parties without full disclosure 349 no commission for securing condemnation by eminent domain 347 services of agent too remote 347 use of straw man to make a secret profit 348 withholding information from principal 348 When personally liable 353 to principal 353 to third parties 353 Who is 344 Written authority to sign contract 44, 55, 351 AGREEMENT (See Forms) 40 626 CONVETANCINQ IN" PENNSYLVANIA. [References are to sections] AGEEEMENT OF SALE Acknowledgment of 56 by agent 56 not necessary unless agreement to be recorded 56 Analysis of rights and remedies upon breach 65 Apportionment of current taxes 53, 67(3) of rent L 53, 67(3) Assignment of 57 circumstances under which assignee cannot enforce 57 Authority of agent of married vendor should be signed by both husband and wife 45, 55 Authority of agent should be written 44 Cancellation of 66 Consideration should be shown in 45, 48 Default by Buyer analysis of rights and remedies 65 damages, measure of 61 liquidated damage clause 61 seller can retain aU purchase price paid 61 specific performance 61 Default by Seller abatement of purchase price 60 analysis of rights and remedies 85 buyer can elect to take such title as seller has 60 damages, measure of 60 liquidated damage clause 60 specific performance 60 when seller is in default 60 Description of property in 47, 67(10) Effect of 58 Effect of death of parties 58 Ejectment by buyer to enforce 60 Equitable estate of purchaser 58 Execution of 55 Extinction of 66 Fire insurance clause in 49, 67(7 and 8) Fixtures attached, pass with freehold 51 clause in 51 intention governs, what are 51 should be ascertained by examination of property ...67 (5 and 6) should be specified to prevent dispute 51 Form, 45-54 Form of consideration clause in if clear, and incumbrance to be created 48 if under and subject to existing mortgage 48 Index. 627 [Eeferences are to sections] AGREEMENT OF SAL'S— Contmued. Husband of vendor should sign 45, 64 Husband or wife not signing 64 analysis of rights 65 husband refuses to join in deed 64 wife refuses to join in deed 64 Incumbrance clause 50, 67(13) survives delivery of deed 50, 82 Interest of buyer is real estate 5g judgment against is lien 58 buyer bears risk of fire or other loss 58 Interest of seller is personalty for most purposes 58 when judgment binds 58 Introduction of 46 Joinder by husband, in bars curtesy 253 Joinder by wife in, bajs dower 250 Judgments against buyer or seller 58 Kind of title agreed on clause as to, in 54 good and marketable 54 title insurance clause in 54 Legal effect of 58 Liquidated damage clause 48, 60, 61, 65, 67(12) Meaning of various parts 46, 54 Merger with deed 50, 66 Municipal improvements made between sale and settlement to be provided for 67(4) Must be in writing 44 Oral agreement analysis of rights and remedies under 65 doctrine of part performance 63 not specifically enforcible under Statute of Frauds 62 possession and part payment under 63 what is sufficient 63 rights and remedies under 62 when enforced 63 Possession by assignment of existing lease 52, 67(1, 2 and 15) clause 52 under oral contract 63 Principal 's ratification of act of agent 55 Eatification by principal of unauthorized act of agent .... 55, 58, 351 Recording of 56, 58 Rescission of, by parties 66 Bights and remedies upon breach 59 628 Conveyancing in Pennsylvania. [References are to sections] AGREEMENT OF SAl.'E— Continued. Seal not necessary 45 Signature by agent 55 Signature of parties in 45 Signature of wife or husband of vendor 45, 64 Statute of Frauds as to 44 Suggestions in drawing 67 Taxes, water-rent etc 53, 67(3) Terms and conditions in 48, 67(11) Terms of sale should be shown in 45 Time of the essence 54 Vendee in possession not liable for use and occupation 311 Vendee not required to sign 45 Vendor 's signature sufficient 45 Vendor 's wife or husband should sign 45, 64 What the writing must contain 45 Wife of vendor should sign 45, 64 AIR Easement of 218, 299 ALIENS Escheat of lands held by 284 Grantees from aliens without power to hold, take good title .... 29 May take title to land by descent 29 Title to land by purchase limited 29 ALLOTMENT (See Partition) ALTERATION Of deed 91 Of mortgage 106 AMICABLE EJECTMENT 191, 337 ANTE-NUPTIAL agreement bars dower 250 APPEAL by tenant from judgment of Justice or Magistrate 337 APPELLATE COURT Judgments, necessity to search for 376 APPLICATION For Building and Loan Mortgage 363 For title insurance 388 APPORTIONMENT Clause of, in agreement of sale 53, 67(3) Custom in Philadelphia as to rent and taxes 53 Necessity for clause in agreement of sale 53 Of ground rents 159 Of interest on incumbrance in agreement of sale 53 Of land acquired by accretion, among adjacent owners 294 Of rent 53, 319, 333 Of taxes and water -rent in agreement of sale 53 Index. 629 [Eeferences are to sections] APPURTENANCES (See Deeds, Easements) Clause in deed 80 Lease carries, without express mention 315 AEREAEAGES In ground rent 161, 205 ASSESSMENTS Covenant by tenant to pay 319, 341 Liens and sales for 204 Search for 381 ASSIGNEE For benefit of creditors sales by procedure in 202 discharge of liens by 202 decree of court not necessaiy 202 but may be obtained 202 ASSIGNMENT (See Forms) Of contract of sale 57 Of ground rent 162 Of interest in land to be in writing 44 Of land subject to lease 328 Of leasehold interest 329 Of mortgage (See Mortgages) 129-136 To secure payment of money must contain address of assignee or agent in order to be recorded 109 Witnesses necessary to enable assignee of mortgage to sue in own name 129 ASSOCIATIONS (See Unincorporated Associations) ASSUMPSIT Remedy of by landlord 320 by owner of ground rent 170 ATTESTATION (See Deeds, Wills, Witnesses) ATTORNEY IN FACT (See Forms) Acknowledgment by 92 Of corporation, to deal with mortgages 146 AUTHORITY Of agent to act 44, 55, 309, 351 Of person to satisfy and assign corporation mortgages must be recorded 1*6 AWAY-GOING CROP 339 BANKRUPTCY Bars dower and curtesy 250 (9), 253 Landlord's preferred claim for rent in 327 Recording of certificates of 189 Searches for 371 630 Conveyancing in Pennsylvania. [References are to sections] BAEGAIN and Sale, deed of 68, 73 BEQUEATH Meaning of 261 BIETH OF CHILD Eevokes will pro tanto 278 BLANK Deed signed in 106 Mortgage signed in 106 BONA FIDE PUECHASEE Fraudulent delivery to, by escrow agent, passes title 90 Of land subject to escheat gets good title 287 Protected by Eecoiding Acts 174, 175 Protected when mortgage fraudulently satisfied by mortgagee after assignment 135 Takes free of landlord's right to follow goods subject to distraint 323 Takes free of unrecorded equitable estate created by prior agree- ment of sale 58 Title by adverse possession when claimant leaves property void as to, unless recorded 217 Title under estoppel by deed void as to 98, 112 Who is a, under Eecording Act 175 BOND AND WARRANT (See Forms) Accompanying mortgage 108 Avoidance of personal liability through straw man 139 Conditions of 108 Consists of two separate instruments 108 Definition of 99 Entry of judgment on warrant of attorney advantages of 151 advantage in obtaining immediate general judgment by . . . 151 binds aU of mortgagor 's property 151 lien dates back to recording of mortgage 151 remedy exclusive of proceedings on mortgage 151 How mortgagor may avoid person^ liability after parting with title 139 Personal liability of mortgagor continues after parting with title 138 Proceedings on 151 Usually double amount of principal sum by custom 108 BONDS Mortgage to secure, by corporation 120 BOUND AEIES Courses and distances as 295, 296 less reliable than monuments 296 more reliable than statements of quantity 296 Dedication when street mentioned as 237 Fences as 301 Index. 631 [References are to sections] BOUNDARIES— ComMmwed. Inconsistent desciiptions courses and distances preferred over statements of quantity 296 monuments preferred over courses and distances 296 rules of presumption concerning 296 Lakes as 298 Monuments as 295, 296 prevail over calls for adjoiners , 296 prevail over courses and distances 296 what are 295 Must be clearly defined for title by adverse possession under color of title 209 Party walls as 299 Ponds as 298 Presumptions of law concerning 295-299 Shifting 294 Streams as middle thread is usually the boundary 298 side or shore may be 298 Streets as Center line is usually the boundary 297 even though description is "along the side" 297 even though stakes are at side 297 presumption that grantor conveys all he owns 297 title to bed of unopened street as between grantor and grantee 228, 297 BREACH Of agent 's warranty of authority 353 Of agreement of sale 59 analysis of rights and remedies 63 by buyer , 61 by seller 62 Of covenants in lease as amounting to eviction 312, 314 as giving right of forfeiture 312, 332 Waiver of, by landlord 332, 336 BRIEF OF TITLE Form of 386 BROKERS (See Agents and Brokers) BUILDER Agreement of sale by (See Forms) Building restrictions clause in deed 79 BUILDING AND LOAN ASSOCIATION Administration of eommittees appraisal committee 367 auditing committee 367 632 Conveyancing in Pennsylvania. [References are to sections] BUILDING AND LOAN ASSOCIATION— Contimaed. directors, duties and liabilities of 367 ofS.cers, duties and liabilities of 367 stockholders, liability of 367 Application for loan form 363 method of 363 Appropriations definition of 362 method and conditions of 362 Capital stock of double shares 355 compared with other corporations 355 free stock 355 kinds of 355 installment stock 355 pledged stock 355 single shares 355 Certificates of stock 356 methods of issuance 356 Contingent fund method of using 358 objections to 358 reasons for 358 Delinquent shareholders fines 359 foreclosure of mortgage 364 forfeiture of stock 360 Directors cannot take commissions on loans unless fact disclosed to other directors 367 duties of 367 kinds of persons to select on 367 liabilities of 367 Fines reasons for to equalize earnings 359 to insure prompt payment 359 Forfeitures good policy to forfeit stock greatly in arrears 360 method of 360 Full paid stock dividends cannot be guaranteed 355 must be only small proportion of total capital stock 355 History of 354 Maturity of shares 357 cannot guarantee at any particular time 357 Index. 633 [References are to sections] BUILDING AND LOAN ASSOCIATION— Contimaed. in double shares 355 in single shares 356 Methods of 364 Mortgages borrower can pay off at any time 144, 364 default, provisions governing 364 do not mature untU maturity of stock regardless of wording of instrument 144, 364 note and pledge of stock as collateral for loan 364 payment of can be made by borrower at any time 144, 364 cannot be required until maturity of shares 144, 364 method 354 split 365 special provisions in 364 Origin of first organized in Philadelphia 354 Plan of membership in 354 serial plan 354 terminating plan 354 Premiums are fair and reasonable 366 are lawful 366 justification of 366 kinds of gross 366 installment 366 rate of 366 under modern system 366 under old system 366 Purpose of 354 Beal Estate what may be held by 39 Shares (See Capital stock; Maturity) Shareholders delinquent may be charged fine 359 mortgage may be foreclosed 364 stock may be forfeited 360 kinds of 354, 355 liability of 867 withdrawals by ^^^ Split Mortgage advantages of 365 disadvantages of 365 634 Conveyancing in Pennsylvania. [References are to sectionB] BOTLDING ANB LOAN ASSOCIATION— ComimMed. first mortgage must not exceed half of the loan 365 nature of 365 Stock (See Capital Stock) certificate of 356 Withdrawals methods of 361 rate of earnings allowed withdrawing shareholder 361 when permitted 361 CANCELLATION Of agreement of sale 66 Of wills . . ■. 277 CANONS OF DESCENT 241 CAPACITY To make will (See Wills) 265 To mortgage (See Mortgages) 114-119 To take, hold and convey 27 aliens 29 commonwealth 38 corporations 39 drunkards, habitual 31 feme sole traders 36 fiduciaries 37 foreign corporations 40 individuals, in general 28 married women 35 minors 33 partners 42 persons of unsound mind 30 persons under duress 34 unincorporated associations 41 weak-minded persons 32 Sales of property of persons with no capacity to convey, under Price Act 203 CEETIFICATB Of no set-off (See Forms ; Mortgages) 133 Of residence of mortgagee, assignee or payee 109 Settlement 389 CESTUI QUE TRUST Definition of 24 Loss of title by escheat after seven years 286 Eights lost when legal title barred by adverse possession 216 Trustee cannot claim title by adverse possession against 213 CHARITIES Attestation in conveyance to 88 Conveyance or devise to and by unincorporated 41 Index. 635 [References are to sections] CHARITIES— ConUnueti. Devise or bequest to, must be witnessed 269 Devise or bequest to, must be made 30 days before death of testator 269 Escheat of land held by 285 Sales of property of, under Price Act 203 CHATTEL MORTGAGES 110 CHATTEL REAL Definition of 308 CHILD, CHILDREN (See Descent) CHURCHES (See Charities) CLOUD UPON TITLE 20, 23 BUI in equity to remove 192 CODICIL, to will (See WUls) Definition of 262 Form of 268 Effect of 268 Law adds upon birth of child after date of will 278 COLLATERAL HEIRS (See Descent) COLOR OP TITLE Adverse possession under 209 COMMISSIONS When brokers entitled to 347 When brokers not entitled to 347, 348 COMMITTEE To administer estate of insane person 30 sales by under Common Pleas Court 202 procedure in 202 under Price Act 203 COMMON PLEAS COURT Sales under direction of by trustees appointed by deed 202 by committee of lunatic 202 by guardian of weak-minded person 202 by assignee for creditors 202 Search for judgments of 377 COMMONWEALTH Can gain title but cannot lose title by adverse possession 38 Escheat to for want of heirs 283 Escheat not complete until proceedings commenced by 288 May delegate right to take land for public purposes 38, 220 May take land for public purposes 38, 220 Obligation to compensate for land taken by 38, 223 Powers to purchase, hold, sell, etc 38 Statute of limitations does not run against 38, 214 COMPENSATION in taking by eminent domain (See Eminent Domain) 636 Conveyancing in Pennsylvania. [References are to sections] COMPONENT PARTS OP A DEED 72 CONDITION, ESTATES UPON 12 In deed 72 Mortgage is 101 CONFESSION OF JUDGMENT (See Bond and Warrant; Land- lord and Tenant) CONFIRMATION Form of deed of (See Forms) CONSANGUINITY (See Descent) CONSIDERATION Clause in agreement of sale 48 In deeds (See Deeds) 75 In mortgages 102 Should be set out in agreement of sale 45 CONSTITUTION Requirements of, for mortgage by corporation 119 Provisions of, as to compensation for taking by eminent domain 219, 223, 227 security must be entered by public utility 232 Trial by jury secured in aU eases of taking by eminent domain 232 CONSULS Powers of, to take acknowledgments, etc 95 CONTINGENT REMAINDERS 13 CONTRACTS (See Agreements) CONVEYANCE (See Deeds, Mortgages, Ground Rents, Leases) CONVEYANCERS (See Agents and Brokers) Old-time conveyancer 344, 368, 387 now replaced by title companies 387 and by real estate broker 344 CONVEYANCING As a science 2 Definition of 1 Expenses and charges, who must pay 391 History of 68 Scope of 1 COPARCENARY Estate in 15 CORONER'S DEEDS Recording of 189 CORPORATIONS Acknowledgment of deed by (See Forms) 92 Cannot hold real estate unless necessary for its business 39 Charitable .fSr! ,i capacity to hold land 39 Chattel mortgages by 110 Commonwealth must commence proceedings to escheat land im- properly held by 288 Index. 637 [Eeferences are to sections] CO^FOHATIONS— Continued. Deeds of, must be under seal 87 Escheat of land held by 39, 287, 289 Foreign (See Foreign Corporations) 40 Form of deed and mortgage by (See Forms) How created prior to Constitution of 1874 39 General Corporation Act of 1874 39 classes under 39 Land properly held may be alienated as freely as by individual 39 May purchase at sheriff 's sale to protect lien 39 Mortgages by 39, 119 constitutional requirements 119 power of attorney specifying persons authorized to satisfy, assign, etc., must be recorded 146 Mortgage to secure bond issue 120 Power of eminent domain, when possessed by 220 Power to hold, purchase and transfer real estate 39 Power to mortgage (See Mortgages) 119 Eeal estate capacity to hold land 39 Right to hold and alien land dependent on statutory authority . 39, 40 Sales of property of, under Price Act 203 Title to land improperly held defeasible only by Commonwealth 289 COUNTY COMMISSIONEES ' DEEDS Becording of 189 COVENANTS Against incumbrance in contract survives delivery of deed .... 50 Enforcement of 82 Of title ancient 82 modern 82 Of warranty 82 In deeds 72, 82 In leases (See Leases, Landlord and Tenant) 312 That run with the land 328, 329 That are only personal 328, 329 CRIMINAL COURT Search for judgments of 378 CURTESY At common law 10, 252 Definition of 10, 252 Exists in wife 's sole and separate use property 252 How it may be barred 253 Is interest in fee 252 Judgment is not lien against 252 Same interest as wife 's dower 252 638 Conveyancing in Pennsylvania. [Beferences are to sections] GWRTESY— Continued. Under Intestate Act of 1917 252 What property subject to 252 DAMAGES For breach of agreement of sale by buyer 61 by seller 60 fraud, effect of 60 liquidated damage clause 60, 61 under oral agreement 62, 63 For taking by eminent domain (See Eminent Domain) 223, 231 May be inadequate remedy 24 DATE Of acknowledgment may be any time after execution 94 Of deed (See Deeds) 73 DEATH How unacknowledged deed may be probated 97 Of grantor before acknowledgment of deed 97 Of grantor before delivery no delivery possible after 89 unless previously delivered in escrow 90 Of parties to agreement of sale 58 Of tenant bars right of distress 322 DEBTS OF DECEDENT Lien of, applies to all debts 195 Mortgages to pay 200 Not discharged by judicial sale 205 Sales to pay administrator or executor has power 200 must be under direction of Orphans ' Court 200 may be private or public 200 procedure in 200 title acquired by purchaser 200 Search for 380 What debts are lien beyond one year period 196 When lien expires 196, 380 DECEDENT'S DEBTS (See Debts of Decedent) DECEDENTS' ESTATES, ADMINISTRATION OF Acts of 1917 dealing with 199 Administrator, powers of 259 Escheat 244, 246, 283 Executor, powers of 37, 201, 281 Fiduciaries Act of 1917 37, 197, 199, 200, 201, 256, 257, 259, 281 Inheritance taxes 258 Intestasy (See Descent) Intestate Act of 1917 199, 243, 244 Lien of decedent 's debts 197, 200 Index. 639 [Eeferences are to sections] DECEDENTS ' ESTATES, ADMINISTRATION OF— Continued. Orphans ' Court Act of 1917 199 Partition Act of 1917 194, 199 Partition by heirs 194 Presumed decedents 256 Probate of wills 280 Procedure in 259 Recording decree awarding land as part of widow's or children's ex- emption 194 decree awarding land to surviving spouse as $5,000 share under Intestate Act 194 decree in partition 194 election of surviving spouse to take against will 279 Register of Wills Act of 1917 199 Revised Price Act 199, 203 Sales of real estate by executor 201, 281 by guardian 201 by trustees 201 to pay decedent 's debts 200 under direction of Orphans ' Court 199, 201 under Price Act 203 What law governs 242, 264 Widow 's and children 's exemption 257 WUls Act of 1917 199, 263 DECLARATION OF NO SET-OPE (See Mortgages) 133 DECLARATION OF TRUST (See Forms) DEDICATION Acceptance by public necessary 237 form of 237 may be in variety of forms 237 must be within twenty-one years 238 Bureau of Surveys must approve in Philadelphia 237 Deed of (See Forms) 234 Definition 233 Distinguished from prescriptive easements 240 Effect of imposes duty on public to keep in repair 239 is irrevocable 239 public rights not lost by non-use 239 Express 234 Implied intent of owner governs 235 presumptions as to intent 235, 236, 237 640 Conveyancing in Pennsylvania. [Eeferences are to sections] DEDICATION— Coraiiniied. Intent to dedicate mention in deed : 236 receding from original line 236 recording of plan 236 ■when presumed 236 Intent not to dedicate express statement negativing intent 236 (^) joint use by owner and public 236 (^) mention of street already plotted on city plan 236(^) when dedication not presumed 236(^4) Is gift to public use 233 Offer of is irrevocable 239 lapses after twenty-one years if not accepted 238 may be express or implied 234, 235 Eeceding from original street line 236, 236 (^) Recording of plot or plan 236 Twenty-one year period for acceptance not affected by dates of subsequent conveyances 238 runs from original offer of dedication 238 DEED OF TEXIST For sale and separate use of married woman may stipulate against curtesy 252 May be recorded 189 Of corporation to secure bond issue 120 DEEDS (See Forms) Acknowledgment of by attorney in fact 92 by corporation 92 by married women, separate knowledge no longer necessary . 93 by trustee 92 by whom it may be taken 95 form of clause for 83 how made 92 meaning 92 necessary for purpose of recording 92 not necessary to pass title 92 separate, by married women abolished in Pennsylvania ... 93 signed before officer authorized to take 83 what it must contain 94 Act of April 1, 1909 84 Alteration of 91 Analysis of 73, 83 Appurtenances clause in 80 what passes as 80 Index. 641 [References are to sections] DEEDS— Comimited. implied grant 80 implied reservation 80 to a tract of land are appurtenant to every part 80 Assignment on back of prior deed sufficient to pass title 76 Attestation 88 necessary in, to charity, church, etc 88 not necessary generally 88 Bargain and sale 68 Boundaries (See Boundaries) 295-299 By aliens 27 corporation 38 feme sole trader 36 fiduciaries 37 married women 35 minors 33 partners 42 persons of unsound mind 30 persons under duress 34 unincorporated societies 41 weak-minded persons 32 Component parts of a deed 72 Conclusion of 72, 83 acknowledgment clause 83 execution clause, form of 83 of deed poll 70 receipt clause 83 Conditions 72 Consideration form of clause of 75 fraud on creditors if no consideration 75 not conclusive evidence 75 not necessary 75 one dollar as 75 Coroner 's, recording of 189 Covenants clause of warranty 82 definition 72, 82 kinds of 82 special warranty 82 general warranty 82 implied 82 enforcement of 82 Date of delivery governs 73 not absolutely essential ' 73 prima facie proof of ,..,.. 73 41 642 Conveyancing in Pennsylvania. [Eeferences are to sections] D'EEDS—Continiued. can be contradicted 73 Dates from time of delivery 73, 89 Deed poll 70 Defeasible (See Mortgages) Distinction between poll and indenture 70 Delivery acceptance of delivery 89 date of, deed takes effect as of 73 necessary to pass title 89 presumptions of law concerning 89 in escrow 90 Description boundaries (See Boundaries) 295-299 clause of, in deed 77 must be sufSeient for surveyor to locate 77 by reference to other paper 77 may be contained in other paper than deed 77 Destruction, effect of 91 Devisee 's recitals 282 Effect of not recording 174 Executed outside of state 95, 179 Encumbrance (See Incumbrance) Estoppel by 98 Execution of meaning of 85 reading 85 signing 83, 86 sealing 69, 87 attestation 88 delivery 89 Feoffment 68 Granting clause form of 76 operative words 76 any words showing intention to convey may be used 76 words of, under Act of 1909 76, 84 Habendum to have and to hold dause in 72. 81 purpose of 72, 81 explains premises 81 if repugnant to premises will be rejected 81 Heirs essential to pass fee at common law 76 Act of 1909 as to use of word 76 use of word, not now necessary 76 History of 68 Index. 643 [References are to sections] DEEDS— Conti7i,«ed. Husband and wife to each other 35 Incumbrance clause 79 liability of grantor for, after conveyance 50, 82, 138 liability of grantee for 140, 141 Indenture 70 Inheritance, words of, in 76 Joinder of husband in, bars curtesy 253 Joinder of wife in, bars dower 250 Kinds of 70 Livery of seisin 68 Lost deed, proof of 91 Meaning of execution 85 Meaning of various parts of 73-83 Names of parties 74 Necessity for seal 69, 87 Obtained by duress, voidable 34 Of dedication 234 Of gift to infant, valid 33 Parties 74 Poll 70 Premises of 72 Probate of, where grantor deceased or unable to appear 97 Eatification of deed by infant 33 Reading 85 Receipt acknowledgment of, not binding 75, 83 form of clause of 83 Recital clause in 78 purpose of 77, 78 by feme sole trader 36 if in conflict with operative part 78 of title by descent 260 of title by will 282 Recording of 172-180 Reddendum 72 Requisites of 71 Sealing 69, 87 Short form of, under Act April 1, 1909 84 advantages of 84 not generally used 84 Signing, 83, 86 Sole and separate use property 35 Statute of Frauds 68 644 Conveyancing in Pennsylvania. [References are to sections] DEEDS— Contmued. Statutes of Mortmain 68 Statute of Uses 68 Tenendum 72 Time within which, must be recorded 179-180 To be recorded in separate book 182 To aliens 27 Charities, churches etc 41, 48 corporation 38 minors 33 partners 42 unincorporated associations 41 Under and subject clause 79, 140, 141 What law governs 26 DEFAULT By buyer in agreement of sale 61 analysis of rights 65 By seller in agreement of sale 60 analysis of rights 65 By landlord 313, 314 By mortgagor 151 By tenant 320-324, 332, 337 In payment of ground rent 167-170 DEFEASANCE (See Mortgages) DEFEASIBLE DEEDS (See Mortgages) DELIVERY Acceptance of, necessary to complete title 89 A question of intention 90 Destruction of deed after, does not revest title 91 In escrow 90 Must be before death of grantor 89 Necessary to vest title in grantee 90 DEMISE Definition of 309 Word no longer necessary in leases 309 DESCENDANTS UNDER INTESTATE LAWS (See Descent) DESCENT Administration of decedents ' estates 259 Administrator, powers and duties of (See Administrators) Adopted children cannot inherit from natural parents 247 (2) methods of adopting 247 (2) natural parents cannot inherit from 247 (2) same status as natural children 247 (2) Advancements definition of 255 effect of 255 rules apply to all heirs under Act of 1917 255 Index. 645 [References are to sections] DESCENT— Contin-ued. At common law 241 Blood distinction between half-blood and whole blood abolished by Act of 1917 243 Collateral heirs 245 inheritance tax 258 Curtesy (See Curtesy) Decedents' estates, administration of administrator has no rights in real estate 259 unless necessary to seU for debts 259 lien of decedent's debts procedure for relieving property of 259 procedure in 259 Definition of 241 Desertion of wife by husband bars curtesy 247 (4), 252 of husband by wife bars dower 247 (5), 250 Dower (See Dower) Escheat to Commonwealth, when no heirs 244 (18), 283 Exemption, widows ' and children's 257 Federal inheritance tax 258 Heirs collateral 245 how to ascertain 245 adopted children 247 illegitimates 247 posthumous children 247 lineal 245 History of 241 How to ascertain heirs or next of kin 245 Husband curtesy of (See Curtesy) desertion of wife by, bars his interest 247, 252 election to take against wife's will (See Wills) has same interest as wife 243 interest of, in wife 's estate 244 (1) (17) Illegitimate children are heirs of mother or maternal grandparents 247 (1) mother or mother's relatives may inherit from 247 (1) subsequent marriage of parents legitimates 247 (1) Inheritance taxes are lien upon real estate 258 collateral tax of ten per cent 258 direct tax of two per cent 258 646 Conveyancing in Pennstlvanu. [Eeferences are to sections] DESCENT— Contmaed. federal 258 lien expires as against purchaser after five years 258 Intestate Act of 1917 chief changes in prior law 243 complete system 243 distinctions abolished between descent of realty and personalty 243 between shares of husband and wife 243 whole blood and half blood 243 repeals all prior acts 243 synopsis of ; . . . . 246 text of 244 Lineal heirs 245 Minor can acquire title by 33 Murderer of decedent cannot inherit 247 (6) Next of kin how to ascertain 245 meaning of phrase 245 Per capita meaning of phrase 245 Per stirpes meaning of phrase 245 Posthumous children and heirs can inherit in like manner as though born in life time of deceased 247 (3) Presumed decedents rights of, in the event of being alive 256 when Orphans ' Court will administer estate of 256 Beal estate special provisions of Intestate Act relating to 254 Eecital in deed of person acquiring title by 260 Representation taking by, meaning of phrase 245 Eules of, prior to 1917 243 Rules of under Act of 1917, 244, 246 to widow 244 (1) (17), 246 to surviving husband 244 (1), 246 to children 244 (7), 246 to grandchildren 244 (7), 24f to father and mother 244 (8), 246 to brothers and sisters 244 (9), 246 to nieces and nephews 244 (9), 246 to grandparents 244 (10), 246 to uncles and aunts 244 (12), 246 to cousins 244 (12), 246 in default of heirs 244 (17) (18), 246 Index. 647 [Eeferences are to sections] BBSCENT— Continued. Synopsis of rules of 246 What law governs 242 Wife desertion of husband hj, bars dower 247, 250 dower of (See Dower) election to take against husband's will (See Wills) entitled to entire estate if no heirs 244 (17) has same interest as husband 243 interest of, in husband 's estate 244 (1) (17) widow 's exemption 257 DESCENT AND PUECHASE Definition of title by 25 DESCRIPTION OP PEOPEBTY Boundaries in (See Boundaries) 295-299 In agreement of sale 47, 67 (10) In deeds 77 In mortgages 107 Inconsistent descriptions 296 DESEETION Bars curtesy 247, 253 Bars dower 247, 250 DESTRUCTION Of deed after delivery 91 Of leased property, effect on lease 318 DEVISE Acceptance of, in lieu of dower bars dower 250 Definition of 261 DEVISEES (See Wills) Definition of 201 Recital of will in deed by 282 DISABILITIES (See Capacity) Persons under, have thirty years under Statute of Limitations to bring action for possession of land 215 DISCHARGE Of lien of legacy 275 Of liens by judicial sale (See Judicial Sale) 205 Of mortgages (See Mortgages) Of oflicers or privates may be recorded 189 DISTRAIN Landlord's right to (See Landlord and Tenant) DISTRESS (See Landlord and Tenant; Ground Rents) DIVORCE A. V. M. bars curtesy 253 bars dower 250 648 Conveyancing in Pennsylvania. [References are to sections] DIYOUCE— Continued A mensa et thoro 250 does not bar curtesy or dower ; 250, 253 Kinds of 250 Does not destroy estate by entireties 18 Does not revoke devise to husband or wife 278 DOMICILE Of intestate 242 Of testator 264 DOVSTEE Acceptance of devise in lieu of dower bars 250 Ante-nuptial agreement may bar 250 At common law 248 was life estate in one-third of husband's lands 248 Bankruptcy of husband bars 250 Common law dower abolished by Intestate Act of 1917 248 Definition of 10, 248 Desertion bars 250 Divorce A. V. M. bars 250 How it may be barred 250 Inchoate definition of 249 gives right to enjoin fraudulent mortgage 249 only possibility of future estate 249 In land conveyed by husband during life of wife 248 common law life estate changed to interest in fee 248 Is now estate in fee 248 Is tenancy in common with heirs of husband 251 Joinder in husband 's deed bars 250 Mortgage by husband bars except as to equity of redemption . 115, 250 Orphans ' Court sale for husband 's debts bars 250 Post-nuptial agreement may bar 250 Purchaser at sheriff 's sale for husband 's debt takes clear of . . . 250 Purchaser from husband without joinder of wife takes subject to 248 Eelease of 250 Remedies to enforce 251 Separation agreement with release does not bar 250 Sheriff 's sale for husband 's debt bars 250 Statute of Limitations does not run against until death of hus- band 216, 249 Statutory 10, 248 Taking by eminent domain bars 250 "Vests, when 249 for most purposes at death of husband 249 for some purposes at time of marriage or conveyance to husband 249 What property subject to 248 not improvements made after inchoate dower vests 249 Index. 649 [Keferences are to sections] DRUNKARDS, HABITUAL Deeds of 31 DURESS Deeds made under, voidable 35 Definition of 34 Wills made under, void 265 EASEMENTS Appurtenance clause in deed 80 By prescription analogous to title by adverse possession 218 drainage 218 drip of eaves 218 encroacliment of roof 218 how acquired 218 how prevented 218 judgment in trespass, effect of 218 lateral support 218 light and air not possible in Pennsylvania 218, 299 public can acquire 218 public easement distinguished from dedication 218, 240 requisites of 218 right of fishery 218, 291, 293 rights of way 218 right to pollute a stream 218 Grantees of subdivided lots entitled to benefit of 80 Implied grant of 80 Implied reservation of 80 form of 80 Lease carries all, without express mention 315 Not discharged by judicial sale 205 Public not lost by non-user 239 of fishing 291, 292 over private streams 292 Title search should include search for 181 EJECTMENT Amicable 191, 337 By landlord 337 By mortgagee 105, 151 By vendee to enforce contract of sale 60 Clause in lease to tenant-vendee 67 (2) Effect of judgment in 191 Method of determining title 191 Remedy of, in ground rent 169 Rule to bring 192 To prevent title by adverse possession 216 650 Conveyancing in Pennsylvania. [Eeferences are to aections] EJECTMENT— CoBiTOMed Who may maintain 191 Who may not maintain 191 ELECTION By landlord when tenant holds over 336 By purchaser of leased property at sheriff's sale 333 To take against will (See Wills) 279 EMBLEMENTS 306 EMINENT DOMAIN, POWEK OF Benefits offset against damages 226, 228 Can be exercised only for public purpose 219 what is a public purpose 219 Compensation for taking by change of grade of streets 229 constitutional provisions 223, 227 opening of streets measure of damages 226, 228 when right to damages accrues 228 interest on damages 228 persons entitled to 224 public service companies in city streets special rules applicable to 230 smoke, noise, vibration 230 elevated railroads 230 telephone and telegraph companies 230 public service companies in rural highways special rules applicable to 231 liability for compensation wider than is true of city streets 231 right to, does not run with land 224 where entire tract is taken measure of damages 225 method of proof 225 where part only is taken measure of damages 226 consequential damages 226 smoke, noise, vibration, etc 226 loss of access 226 additional fencing 226 remote damages not recoverable 226 benefits offset against 226 where no part taken, but land injured constitutional provisions 227 compensation not required for injury by operation . . . 227 compensation required for injury from construction . . 227 Constitutional provisions 219, 223, 227 Index. 651 [References are to aectiona] EMINENT DOMAIN, POWEE OF— Continued Damages for taking by (See Compensation) Definition of 219 Estate acquired under 222 Exemptions from taking by 221 Expert witnesses 225 Is inherent in sovereignty 219 Procedure in 232 Public purpose, what is 219 Railroads, exercise by 226, 227, 230, 231 Remedies of owner of land taken by action of trespass 232 board of viewers 232 injunction 232 special procedure, when provided, is exclusive remedy 232 trial by jury secured by constitution 232 security must be entered by public utility 232 Rural highways public service companies in 231 Security must be entered by public utility 232 State highways constitutional requirement of compensation does not apply to 223 legislature has required compensation for taking 223 but not for change of grade 223 Streets and highways change of grade 229 effect of plotting on city plan 228 notice of intention to open 228 opening 228 public service companies in elevated roads 230 no compensation for smoke, noise and vibration 230 telegraph, telephone and gas companies 230 when right to damages accrues 228 who entitled to compensation as between grantor and grantee 228 Tenant has no right of action against landlord for taking by . . 314 Trial by jury secured by Constitution 232 Value, proof of 225 What property may be taken by 221 property already devoted to public use 221 Who may exercise federal government 220 local agencies of government 220 must be expressly conferred on 220 public service companies 220 652 Conveyancing in Pennsylvania. [Eeferences are to sections] EMINENT DOMAIN, POWEE OF— Continued must be expressly conferred on 220 state government 220 ENTIRETIES (See Tenancy by Entireties) EQUITABLE MORTGAGE (See Mortgages) 125 EQUITABLE TITLE Distinguished from legal title 24 Estate of purchaser under agreement of sale 58 destroyed by conveyance to bona fide purchaser unless re- corded 58 History of 24, 68 Lessee with option to buy has 308 To land vests in vendee on execution of agreement of sale 58 To money vests in vendor on execution of agreement of sale ... 58 EQUITY Bill in, to quiet title 192 Courts of 24 Ejectment in 191 History of 24 In property 101 Of redemption 101 Practice 24 Specific performance in 60, 61, 193 ESCHEAT (See Forfeiture) At common law 283 Definition of 283 Escheator 290 Grantees before escheat take good title 289 Informer 's bonus 290 Limitation of time within which commonwealth may begin pro- ceedings 290 Notification to commonwealth 290 Not complete until commonwealth begins proceedings 288 Of land held by aliens 29, 284 Of land held by charities 285 Of land held by corporations 39, 40, 287 Of land held by trustees 286 Proceedings in 290 To commonwealth in default of known heirs of individual 244, 246, 283 Waiver of, by commonwealth 29, 39, 284, 287, 289 ESCHEATOR 290 ESCROW Can be through third party only 90 Delivery in 90 Delivery by escrow agent in violation of condition, effect of . . . 90 ESTATES, KINDS OF 9 Quantity of interest 9 Index. 653 [References are to sections] ESTATES, KINDS OF—Contmued Time of enjoyment 9 Number and condition of tenants 9 ESTATE AT SUFFEEANCE (See Tenancy) ESTATE AT WILL (See Tenancy) ESTATE BY CURTESY (See Curtesy) ESTATE BY ENTIRETIES (See Tenancy) ESTATES FOR LIFE (See Life Estates) ESTATE FOR YEARS (See Tenancy) ESTATE FROM MONTH TO MONTH (See Tenancy) ESTATE FROM YEAR TO YEAR (See Tenancy) ESTATES IN COPARCENARY Elements at common law 15 Obsolete in Pennsylvania 15 ESTATES IN JOINT TENANCY Act of March 31, 1812 16 At common law 16 May still be created 16 Presumption against 16 Trust estates 16 Under law since 1812 16 ESTATES LESS THAN FREEHOLD Analysis 9 At common law 302 At sufferance 11, 303, 307 At will 11, 303, 306 For years 11, 303, 304 ESTATES OF FREEHOLD Analysis 9 At common law 10, 302 By curtesy 10, 252, 253 Dower 10, 248-251 Fee simple 10 Life for life of another 10 for one 's own 10 ESTATES UPON CONDITION 12, 101, 107 ESTOPPEL Declaration of no set-off based on 133 Of tenant to deny landlord 's title 340 ESTOPPEL BY DEED 98, 112 After acquired title vests in grantee 98 title void as against bona fide purchasers 98 EVICTION (See Landlord and Tenant) 314 EVIDENCE Exemplified certificate of recorder of deeds as 173 Recording of deeds and mortgages to preserve 173 654 Conveyancing in Pennsylvania. [References are to sections] EXCHANGE, DEED OF (See Forms) EXECUTION Of agreement of sale 55 Of deed 85 Of wiU 267 EXECUTOR (See FORMS) Cannot purchase at own sale 37 Deed of heirs need not join in 281 Express powers over real estate 281 can sell without order of court 281 Generally no power to sell or convey real estate without specific authority 37, 200, 201, 281 Implied powers over real estate 281 Leasehold interest passes to 308 May enforce agreement of sale signed by testator 281 May petition court for leave to sell real estate if insufficient personalty to pay debts 37, 200, 281 Power to sell when incident to oflSce of 37, 201, 281 when implied 201 when not specifically authorized 201 Real estate does not pass to 37, 281 unless directed by will or not sufficient personalty to pay decedents ' debts 37, 200 Recital of decree of court in sale by 37 Searches against 371 EXEMPLIFICATION Of deed to land lying in two counties may be recorded 189 Of record by recorder of deeds as evidence 173 EXEMPTION From power of eminent domain 221 Tenant 's right of, from distress 325 Widow's (See Descent) 257 EXTENSION OF MORTGAGE Form of agreement of (See Forms) EXTINCTION Of agreement of sale 66 EXTINGUISHMENT (See Forms) Discharge of ground rents by 157 FARM LEASE Form of deed of (See Forms) On shares, form of deed (See Forms) Tenant 's right to increase of live stock 339 Way-going crop 339 FATHER Descent to, under intestate laws (See Descent) Indeix. 655 [Eeferences are to sections] FEE SIMPLE is ine greatest estate XO Quantity of ownership in 10 Relation to estates of freehold 9, 10 Represents absolute ownership 10 Words necessary to pass 76 At common law under Act 1909 76 FEME SOLE TRADERS (See Married Women) Conveyance by without joinder of husband valid 36 Decree of court not essential 36 Definition of 36 Intestacy of, to her next of kin 36 Powers of 36 Recital of, in deed or mortgage 36 FENCES Cost of exception in Philadelphia suburbs 301 shared by adjacent owners 301 No obligation to contribute to cost of, unless used 301 Not required by law 301 Procedure in determining rights as to 301 Spite are a misdemeanor 301 definition of 301 FEOFFMENT 68 FEUDAL SYSTEM 68, 153, 302 FIDUCIARIES (See Executors, Administrators, Guardians, Trustees) Cannot purchase at own sale 37 Escheat of land held by 286 Generally power to sell or convey limited 37, 201, 202 If more than one trustee or guardian all must join in deed .... 37 May bid at own sale by leave of court 37 Mortgages by (See Mortgages) 118 power to sell includes power to mortgage 118 Power to sell or convey to be ascertained from instrument cre- ating, etc 37 Powers of 37, 201, 203 Public or private sales by 37 Recital in deed by 37 Sales by kinds of 201, 202 requirements as to 201, 202 under Orphans ' Court 201 under Common Pleas Court 202 under Price Act 203 Who are 87 656 Conveyancing in Pennsylvania. [Eeferences are to sections] FIDUCIAEIES ACT OF 1917 Administration of decedents ' estates 259 Executors, powers of 201, 281 Guardians, powers of 201 Lien of decedents ' debts 197 Presumed decedents 256 Relation to other Acts of 1917 dealing with decedents ' estates . 199 Sales and mortgages for decedents ' debts 2O0 Sales by executors 37, 201, 281 Sales by guardians 201 Sales by trustees 37, 201 Widows ' and children 's exemption 257 FIEE Effect of, on terms of lease 318 Eisk of, is on buyer under contract of sale 58 FIRE INSURANCE POLICIES Clause when included in sale 49 Covenant by tenant not to increase rate of 341 (7) Perpetual, remains in force forever 49 based on 2 per cent, of amount insured for 49 may be surrendered and cancelled 49 Suggestions for agreement of sale 67 (7 and 8) Term cancellation value of 49 is issued for term of years 49 premium varies 49 FIRST MORTGAGE (See Mortgage) 126 FIXTURES Clause in agreement of sale 51 Depends on intention to make 51, 113, 338 Rights of landlord and tenant as to 338 Rights of mortgagor and mortgagee as to 113 Eights of vendor and vendee as to 51 Should be specified in agreement of sale 51, 67 (5 and 6) VFhat are 51, 113, 338 FORECLOSURE (See Mortgage) FOREIGN CORPORATIONS Definition of 40 May be excluded from state 40 May hold and convey land as freely as domestic corporations under Act of June 12, 1919 40 Must register with Secretary of Commonwealth 40 Power to hold land in Pennsylvania 40 Eights purely statutory 40 Waiver of escheat by Commonwealth as to land improperly held 40 Indez. 657 [Eeferences are to sections] FORFEITURE (See Escheat) Of land held by aliens 29, 284 held by corporations 39, 287 held by charities 284 held in trust 286 Of lease, for breach 312, 332 Under common law mortgage 101 FORGED INSTRUMENTS Recording of 181 Title under 181 FORMS (See Index of Forms, Pages 437 to 440) FRAUD EfEect of, as to rights of parties under agreement of sale 60 What constitutes under agreement of sale 60 FRAUDS, STATUTE OF (See Statute of Frauds) FREEHOLD, ESTATES OF Definition of 10 How divided 9 Less than 11, 302 FUTURE ESTATES 13 GENERAL WARRANTY (See Warranty; Deeds) GIFT Deed of, to infant valid 33 Oral, when enf orcible 63 To public by dedication 233-240 GOOD TITLE Specification of, in agreement of sale 54 What is 22, 23 GRANDCHILDREN Descent by, under intestate laws (See Descent) GRANT AND CONVEY Meaning of, under Act of 1909 76 GRANTING CLAUSE 76 GRANTEE Duty to inspect record for defective indexing or recording 183 Of leased property rights and liabUiti* 328, 333 Of mortgaged property 140 liability to mortgagee 140 to grantor 141 Of property subject to ground rent liability for rent 160 GRANTOR Acknowledgment of, must be in person 92 Liability after conveyance on covenants in contract 50 in deed 82 43 658 CONTETANCING IN PENNSYLVANIA. [Eeferenees are to sections] GEOTTND RENT (See Forms) Act of Assembly for extinguishing against will of owner held unconstitutional 219 Action of assumpsit 170 Action of ejectment 169 Analysis of deed 154 Assignment of 162 Apportionment of 159 Arrearages of rent 161, 165 Assumpsit, action of 170 Compared with long term leases 343 Compared with mortgages 171 Definition of 153 Discharge by extinguishment 162 same form as assignment 162 by judicial sale 165, 205 by merger 163 by order of court after twenty-one years 164 Distress 154, 167 Ejectment, action of 169 Extinguishment of 157 Form of deed of '. 154 History of 153 Inheritance, of 156 Irredeemable . , 157 Is real estate 156 Judicial sale on 165 Lien of 161 Merger of 163 Method of creating 153 Nature of 156 is real estate 156 Parties to 155 Payment of rent 166 Eedeemable 158 Eeentry 168 Eemedies for collection of by action of assumpsit 170 by action of ejectment 169 by distress 167 by re-entry 168 Eent, payment of 166 Sale of property, subject to effect of Act of 1878, P. L. 205 160 grantee liable to reimburse grantor 160 Index. 659 [References are to sections] GROUND RENT — Continued. grantee not liable to owner of rent unless he assumes liability 160 original owner continues liable for rent 160 GUARDIAN Accounts of 201 All must join in deed if more than one 37 Deeds of (See Forms) Generally no power to sell or convey real estate without specific authority 37, 201 Of estate of person adjudged weak-minded, etc 32 Of estate of insane person 32 Kinds of 270 Mortgages by 118 Sales by 37, 201 under Price Act 203 requirements as to 201 Searches against 371 Testamentary 270 Who appointed as 201 Who may appoint 270 HABENDUM (See Deeds) 72, 81 HABITUAL DRUNKARD Deed of, voidable only 31 Definition of 31 Habitual, by decree of court 31 effect of 31 Proof of drunkenness 31 Sales of estates of, under Price Act 203 HEIRS (See Descent) Collateral 242 Deeds by (See Forms) How to ascertain 245, 246 Lineal 242 Need not join in deed of executor under power of sale 281 Rights of under Intestate Act (See Descent) 244 Use of word in deed 76 in will 291 HIGHWAYS (See Streets and Highways) HISTORY Of conveyancing 68 Of equity 24 Of ground rents 153 Of leases 302 Of mortgages 100. 101 Of recording , 173 660 Conveyancing in Pennsylvania. [References are to sections] TUSTOBY— Continued. Of title by descent 241 Of title by will 262 HOLDING OVEE, BY TENANT (See Landlord and Tenant) HOLOGRAPHIC WILL, Definition of 261 HUSBAND (See Agreement of Sale, Curtesy, Descent) Election of, to take against wife 's wUl must be recorded .... 189, 279 Joinder necessary in deed by wife 35 in mortgage by wife 115 Joinder not necessary in wife 's assignment of judgment 115 in wife 's assignment of mortgage 115 in wife 's satisfaction of mortgage 115 in deed or mortgage where wife feme sole trader 36 in conveyance of sole and separate use property 35 Loses right in wife 's estate where wife feme sole trader 36 Rights of surviving husband to take against will 279 Eights in deceased wife's estate (See Descent) 244, 246 Signature of, in agreement of sale 45, 64 Signature of, to agent 's authority to sell real estate 45 Will of, revoked pro tanto by subsequent marriage 278 HUSBAND AND WIFE Cannot acquire title by adverse possession against one another 213 Deeds to each other 35 Signing agreement of sale 45, 64 Take same shares in each other's estate under Intestate Act of 1917 243 Tenancy by entireties 18 Tenancy in common now possible 18 ILLEGITIMATE CHILDREN Eights under intestate law 247(1) Rights under wills 273 IMPROVEMENTS By vendee in possession under oral agreement of sale, makes contract enf orcible 58 Covenant for, in ground rent deed 154 in long term lease 343 No compensation for, when made on land laid out as streets on city plan 228 Provisions for in agreement of sale 67(5) Eight of tenant to remove 338 Vendee cannot recover for when in default 56 Wife does not have dower in, when made after title vests in husband 249 Index. 661 [Eeferences are to sections] INCUMBEANCES Clause in agreement of sale 50 survives delivery of deed 50 suggestion in drawing 67 (J5; Clause in deed 79 Liability of grantor after conveyance under covenant to convey free and clear of 50, 82 Personal liability of grantee for 140, 141 Search for 373 INDENTUEE Definition of 70 Differs from deed poll 70 History of 70 INDEX (See Recording; Searches) Ad sectum 368 Arrangement in recorder of deeds ' ofBlce 369 Direct or grantor 369 General, not required prior to 1875 182 How to search 369 Judgment index arrangement of 377 how to search in 377 of common pleas, at prothonotary 's office 377 of criminal courts located in office of clerk of quarter ses- sions 378 of Supreme Court, at prothonotary of Supreme Court office 376 of United States courts, at clerk 's office 379 Locality 382 Mortgage 373 Of deeds 182, 369 Of records 369 Recorder of deeds required to 182 IMDEXING Defective, effect of 176, 183 Duty of mortgagee or grantee to examine record for defective 183 Duty of recorder of deeds as to 182 Judgments 375, 377 Liens for taxes and assessments 204, 381, 382 Mechanic 's liens 382 Of deeds 182, 183, 369 Of instruments required to be recorded 182 Of mortgages 182, 373 Revival of judgments 375 Suit to preserve lien of decedent's debts 380 INFANTS (See Minors) INHERITANCE TAXES (See Descent) 258 INSANITY (See Unsound Mind) 662 Conveyancing nsr Pennsylvania. [Eeferences are to sections] INSUEANCE (See Fire Insurance; Title Insurance) INTESTACY (See Descent) INTESTATE (See Descent) Intestate Act of 1917 10, 243 text of 244 synopsis of 246 IREEDEEMABLE GEOUND EENTS (See Ground Rents) ISLANDS Title to 293 ISSUE, Eights of, under intestate laws (See Descent) JOINT ESTATES Definition of 14 Kinds of 14 JOINT TENANCY (See Estates in) JUDGES May Take Acknowledgments 95 JUDGMENT (See Judgment Liens) Against buyer or seller under agreement of sale 58 husband or wife holding by entireties 18 husband, is not a lien upon hia curtesy 252 Effect of 195 Entry of, on warrant of attorney in leases 329, 337, 382 in mortgages dates back to recording of mortgage 151 binds all of mortgagor 's property 151 For taxes does not bind owner personally 204 Form of release of (See Forms) Is a lien on a life estate 195 Is not a lien on curtesy 252 Is a lieu on defendant 's real property, but not on personal .... 195 Is a lien on ground rent 195 Is not a lien on leasehold 308 Is not a lien on interest of mortgagee 105 Is not a lien on real estate bought after entry unless revived by sci. fa 195 Is not a lien on real estate sold before entry 195 Magistrate 's judgment is not a lien 375 May be revived after five years 195, 375 Of appellate court 376 Of common pleas court 377 Of criminal court 378 Of ejectment, effect of 191 Of United States court 379 Of what courts are liens 375 Search for (See Searches) 374-379 Index. 663 [Eefereneea are to sections] JUDGMENT LIENS Always discharged by judicial sale 205 Attach ipso facto upon entering judgment 195 Binds all real estate of debtor in county 195 Does not bind after acquired property 195 Expires after five years unless revived 195 Judgment not affected by loss of lien 195 Methods of binding after acquired property 195 Methods of binding property in another county 195 Eelease of (See Forms) Eevival of 195 Testatum fi. fa 195 Where to search for 374-379 JUDICIAL SALE By Common Pleas court 202 By Orphans' Court 199, 201, 203 By sherifE under judgment lien 198 Corporations may purchase at, to protect security 39 Discharge of liens by agreement that no liens to be discharged enforceable . . . 205 all liens discharged except those protected by legislature . . 205 easement not discharged 205 ground rents discharged if subsequent to lien on which sale is made 205 not discharged if prior 205 arrears of ground rent discharged 205 lien of decedent 's debts not discharged 205 mortgages protected under certain circumstances 205 prior liens discharged unless protected by legislature 205 subsequent liens always discharged 205 tax liens usually discharged 205 remain if proceeds not enough to pay taxes 205 Effect as to leasehold interest 205, 333 For taxes and municipal claims 204 What is a 205 JUSTICES OF THE PEACE Power to take acknowledgments, etc 95 Summary proceedings before, by landlord to obtain possession 337 KIN, NEXT OF (See Descent) LAKES As boundaries 298 Title to bed of 291, 292 LAND Definition of 1 664 Conveyancing in Pennsylvania. [References are to sections] LANDLOED AND TENANT (See Lease) Apartment houses implied covenant of landlord to repair 316 rights between occupants 315 Assumpsit for rent 320 Condition of premises injuries resulting from defective 316, 341(S), 3i2(i) no implied covenant by landlord as to 316 except that tenant entitled to receive in same condition as when lease signed 316 Covenants by landlord as to condition of premises 316 breach of, effect of 312, 314 for quiet enjoyment 313 for repairs 316, 317 in general 312 removal of fixtures 338 when run with land 328, 329 Covenants by tenant breach of, effect of 312, 332 for rent 319 for repairs 316, 317 in general 312 removal of fixtures 338 use of premises 315 when run with the land 328, 329 Destruction of building does not relieve tenant of obligation for rent 318 lease should provide for termination in event of ....318, 342 (i) no obligation on part of either party to restore 318 Distress by owner of ground rent 167 definition of 321 does not bar exercise of all other rights 321 exemption, tenant 's right of 325 waiver of 325, 341(iS) illegal liabUity of landlord 326 liability of sheriff or constable 326 origin of 321 procedure in appraisement 324 forcible entry unlawful 324 method of levy 324 notice to tenant 324 sale 324 Index. 665 [Hefereneea are to sections] LANDLOED AND T'ES ANT— Continued. property subject to all goods on premises 323 goods fraudulently removed 323 goods of stranger liable for 323 unless used by way of trade 323 unless exempt by legislature 323 unless in custody of law 323 right of, exists after removal from property if fraudulent 323 if lease so provides 323 after termination of tenancy 322 as long as tenants goods are on premises 322 when rent is certain 322 when rent is a day over-due 322 Estoppel Of tenant to deny landlord 'a title 340 examples of 340 Eviction of tenant by landlord 314 by state under eminent domain gives tenant no Jjight of action against landlord 314 by third parties 314 effect of 314 trespasses by landlord may be 314 by third parties are not 314 what constitutes 314 Evolution of law of 302 Fixtures at common law 338 domestic 338 express provisions in lease, interpretation of 338 intent is the test 338 tenant must remove before end of term 338 trade 338 what are not removable 338 what are removable 338 Forfeiture clause for, customary in lease 332 not self-operating 319, 332 election by landlord necessary 332 for non-payment of rent 319 landlord must make demand unless provision to contrary 319 no right of, unless express 332 waiver of right to 332 when landlord bound by election 332 666 Conveyancing in Pennsylvania. [Eeferences are to sections] LANDLORD AND T'ENA'NT— Continued. Holding over hj tenant destroys tenant 's right to remove fixtures 338 effect of 336 election by landlord to continue tenancy 336 to eject tenant 336 for one day makes tenant liable for another term 336 what is 336 when tenancy from year to year created 336 from month to month created 336 Judicial sale of premises when lease prior to lieu purchaser takes subject to 333 rights of tenant as to advance payments of rent 333 when lien prior to lease purchaser can oust tenant 333 can continue the lease 333 apportionment of rent rights of tenant as to advance payments 333 Month to month (See Tenancy from) Notice to quit at common law 335 express provisions in lease 335, 336 in tenancies from year to year 335 three months ' notice 335 from month to month 335 one month 's notice 335 not required by tenant 335 under Act of 1905 (P. L. 87) 335 withdrawal of 335 Possession tenant 's right to, is exclusive 313 Preferred claim of landlord over other creditors basis of 327 limited to one year 's rent 327 method of enforcement 327 wages preferred over rent claim 327 when exists 327 in bankruptcy 327 receiver 's sale 327 sherife 's sale 327 Quiet enjoyment, Covenant of any entry by landlord is breach of 314 does not cover trespasses by third parties 314 effect of breach of 314 right to damages 314 Index. 667 [Eeferences are to sections] LANDLOED AND TIEN ANT— Continued. when there is eviction 314 express covenants giving landlord right to enter 312, 341 law implies against landlord 313 tenant 's right to possession exclusive 313 Eemedies of landlord to regain possession amicable ejectment (See Warrant of Attorney) 337 ejectment 337 summary proceeding before magistrate or justice under Act of 1772 337 under Act of 1830 337 under Act of 1863 337 Bent apportionment of 319 not apportiouable usually 319, 328 is apportiouable when premises sold by sheriff 319, 333 taxes, assessments, etc., as 319, 341 when payable 319 where payable 319 whole, due upon breach of covenant 319 Eepaira cost of cannot be deducted from rent 316 destruction of building 318 express covenant to make by landlord 317 by tenant 317 effect of breach of 312, 317, 332 no implied covenant to make, by landlord 316 tenant responsible for slight repairs 316 but not for more 316 Eights and remedies of landlord 320-327, 331-337 when tenant may be treated as trespasser. .307, 311, 332, 333, 336 Eights and remedies of tenant 313, 314, 338, 339 Surrender agent of landlord cannot accept 334 by express agreement 334 may be oral 334 by operation of law acceptance by landlord necessary 334 what constitutes 334 landlord can re-let premises and hold tenant for balance 334 tenant continues liable unless landlord accepts 334 Subleases (See Leases) 330 Tenancy (See Tenancies) at sufferance 307 at will 306 for years 304 668 Conveyancing in Pennsylvania. [References are to sections] LANDLORD AND T;:ENANT— Continued. from month to month 305 from year to year 305 Termination of relation by forfeiture 332 judicial sale of premises 333 merger 331 notice to quit 335 surrender 334 methods of 331 Transfer of landlord's interest covenants that do not run with land benefits and burdens do not pass unless lease had word "assigns" and unless lease itself assigned 328 covenants that run with the land grantee has benefit of 328 is subject to burden of 328 Transfer of tenant's interest covenants that do not run with the land benefits and burdens do not pass 329 covenants that run with the land assignee has benefit of 329 is subject to burden of 329 tenant may assign 329 continues liable 329 is surety as to assignee 329 warrant of attorney to confess judgment does not bind assignee 329 Under feudal system 302 Use of premises among several tenants 315 business property 315 easements and appurtenances 315 no restrictions unless express 315 Way-going crop definition of 339 limited to winter grain 339 Warrant of attorney to confess judgment customary in leases 337 (5) does not bind assignee 329 does not bind sub-lessee 337 exhausted by one entry of judgment 337(5) procedure under 337(5) When grantee of landlord 's interest may exercise 328 Year to year (See Tenancy from) LAPSED DEVISES (See Wills) 272, 274 Index. 669 [References are to sections] LEASE (See Landlord and Tenant) Assignment of landlord 's interest 328 of tenant 's interest 329 At common law 302 Covenants in as to condition of premises 316 as to use of premises 315 breach of, effect of 312 by landlord 312, 313, 314, 315, 316, 317, 318, 328, 329 by tenant 312, 316, 317, 318, 319, 328, 329 to pay rent 319 to repair 316, 317 what do not run with land 328, 329 what run with land 328, 329 definition of 302 Form of must be in writing if for more than three years 309 oral leases 309 signature only of lessor necessary 309 Implied definition of 311 does not exist where person in possession claims adversely 311 may be wholly or partly implied 311 obligations under 311 original owner in possession after sheriff's sale not liable under 311 tenant under, liable for use and occupation 311 vendee in possession before conveyance, not liable under ... 311 what is 311 Is a contract 308 Is estate in land 308 Is personalty 308 Long term (99 years and longer) advantages of from standpoint of lessee 343 from standpoint of lessor 343 arbitration under 343 compared with ground rents 343 compared with mortgages 343 definition of 343 disadvantages of from standpoint of lessee 343 of lessor 343 is personalty even though term is 999 years 343 lessee treated as owner for most purposes 343 origin of custom of 99 year terms 343 670 Conveyancing in Pennsylvania. [Eeferences are to sections] liEAS^i— Continued. re-appraisements under 343 rentals under 343 rights of parties at termination of 343 Nature of leasehold interest descends to executor or administrator 308 iateresse termini definition and nature of 308 is a contract 308 is chattel real 308 is estate in land 308 is personalty 308, 343 not bound by lien of judgment 308 not subject to partition 308 Oral for less than three years, valid 306, 309 for more than three years, void under Statute of Frauds . .306, 309 creates tenancy at will 306 Origin of 302 Recording of may be recorded if for over 21 years 310 not necessary if tenant in possession 310 question has little practical importance 310 Signature to by agent authority to sign must be in writing if for over three years 309 by lessee, not necessary 309 by lessor, required if for over three years 309 tenant should procure owner's own signature 342 (8) Statute of Frauds invalidates oral leases for more than three years 306, 309 three year period computed from date of lease 309 when applicable 309 Sub-leases distinguished from assignment 330 no privity of estate between landlord and sub-lessee 330 sub-lessee not bound by warranty of attorney to confess judgment 337 Suggestions, in drawing for benefit of landlord 341 for benefit of tenant 342 Tenancies under (See Tenancies) at sufferance 307 at will 306 for years 304 from month to month 305, 306, 335, 336 Index. 671 [References are to sections] L'EAS^— Continued. from year to year 305, 306, 335, 336 kinds of 303 Under feudal system 302 Use and occupation tenant liable for, under implied lease 311 Usually favors landlord as against tenant 302, 342 LEASEHOLD MOETGAGE (See Forms) Ill LEGACY Definition of 261 Lien of 273 how discharged 275 LEGATEE Definition of 26] LETTERS OF ATTORNEY (See Powers of Attorney) LICENSE Agents and brokers must have 345 Effect of not obtaining 346 LIEN Created by mortgage 103 Judgment (See Judgments) Mechanics ' 196, 381 Municipal 204, 381 Of decedent's debts (See Debts of Decedent) 197, 380 Of ground rent 161 Of legacy when it exists 275 how discharged 275 Of levy under distress 321 Of mortgage or defeasible deed dates from time of recording except purchase money mortgages 184 Of purchase money mortgage dates from time of execution . . . 121, 186 Of two purchase money mortgages on same day are equal 121 Search for tax 204, 381 Search for unfiled 181, 380, 381 Tax bind property for three years without filing 204 must be filed after three years 204 revival of every five years 204 Vendors' 124 Where to search for 374-379 LIFE ESTATES Definition of 10 May be for grantor 's life 10 May be for life of another 10 Relation to estates of freehold 9, 10 672 Conveyancing in Pennsylvania. [Eeferences are to sections] LIGHT AND AIR Easement of 218, 299 LIMITATION, WORDS OF 76 LIMITATIONS, STATUTE OF (See Adverse Possession) In Pennsylvania 207 LINEAL HEIRS (See Descent) 245 LIQUIDATED DAMAGES Clause in agreement of sale 48 rights of buyer under 61, 65 rights of seller under 60, 65 suggestions aa to 67, (12) LIVERY OP SEISIN 8, 68 LOCALITY INDEXES 382 LONG TERM LEASES (See Leases) 343 LOST DEEDS 91 LOST WILLS 280 LUNATICS (See Unsound Mind) MAGISTRATES Judgments of, not a lien on real estate 375 Summary proceedings before, by landlord to obtain possession 337 MAP OR PLAN OF LOTS MAY BE RECORDED 189 Serves as dedication of streets 235 MARKETABLE TITLE Definition of 23 Distinguished from good 23 Not marketable if holder exposed to litigation 23 Specification of, in agreement of sale 54, 67 (14) MARRIAGE Articles relating to land, etc., may be recorded 189 Of parent to legitimate children 247 Revokes wUl pro tanto 278 Vests inchoate dower 248 MARRIED WOMEN (See Descent, Dower, Feme Sole Trader, Hus- band and Wife, Wife) Cannot become accommodation indorser, maker, guarantor or surety 35 Cannot convey or mortgage without joinder of husband 35, 115 Conveyance of husband to, valid 35 Conveyance to husband valid 35 Disabilities of 35,115 May assign mortgage or judgment without joinder of husband 35 May satisfy mortgage without joinder of husband 35 Mortgage by husband cuts off rights 115 Must join in deed of husband to bar dower 64 Need not join in mortgage by husband 115 Power to mortgage (See Mortgages) 115 Releases, contracts, etc., of, may be recorded 189 Index. 673 [EeferenceB are to sections] MAERIED WOMEN— Comimaed. Eights of, under Act June 8, 1893, 35 Rights of, under fraudulent mortgage by husband 115 Separate acknowledgment by, not required in Pennsylvania .... 93 Sole and separate use property rights in, limited to those expressly created by instrument creating trust 35 curtesy of husband in, may be barred 35 may convey without joinder by husband 35 MARSHAL'S Deeds may be recorded 189 Sales, searches for 371 MATTER OP RECORD, TITLE BY 190-205 Definition and scope 190 MATURITY Of building and loan association shares 357 Of mortgage 144 MAYOR OR RECORDER Power to take acknowledgments, etc 95 MECHANICS ' LIENS Are constitutional, even though special legislation 196 Judgment on, is in rem 196 Procedure 196 Sci. fa. to enforce 196 Search for 381 Special form of judgment lien 196 Time for filing 196 six months for new construction 196 three months for repairs 196 Waiver of 196 Who may file 196 MERGER Discharge of ground rents by 163 Discharge of mortgages by 149 Of agreement of sale by delivery of deed 50, 66 Termination of lease by 331 MINORS Contracts for necessaries valid 33 Contracts of, not void but voidable 33 Deed of, voidable only 33 Definition of 33 Guardians of, powers, etc 201 Heirs of, cannot avoid contract or deed by 33 May acquire by gift, devise or descent 33 Mortgages by 116 Presumption of ratification by faUuie to disaffirm 33, 116 Ratification after reaching majority 33, 116 43 674 Conveyancing in Pennsylvania. [Eeferences are to sections] MINORS— Continued. Return of consideration on disaffirming 33, 116 Sales of estates of, under Price Act 203 Statute of Limitations gives thirty years for enforcement of right of action to land 215 MISTAKE Of recorder of deeds in recording 183 MORTGAGE (See Forms, Mortgagee, Mortgagor) Absolute deed and separate defeasance 134 necessity for recording 123 Advance money definition of 122 form of 122 lien of, as to subsequent encumbrances 122 mechanics ' liens subject to 122 After acquired property 112 mortgage of, void as to subsequent purchasers 112 Assignment of declaration of "no set off " 133 form of 129 fractional portions 130 married woman may execute without joinder of husband . . .35, 115 methods of 129 must be witnessed to enable assignee to sue in own name . . 129 notification to mortgagor 132 payment to mortgagee without notice 132 recording of 136 not notice to mortgagor 136 rights of assignee vs. assignor 131 when debt evidenced by bond 131 when debt evidenced by note 131 rights of assignee vs. mortgagor 132 when assignment cuts off ' ' equities " 132 rights of second assignee vs. mortgagor 134 rights of assignee vs. other persons 135 against prior assignees 135 fraudulent satisfaction by mortgagee after assignment 135 secret equities 135 right to purchase money mortgage 121 set-off of mortgagor 132, 133 should be recorded 136 Bond and warrant accompanying 99, 108, 151 are two instruments 108 provisions of 108 Building and loan association (See Building and Loan Associa- tion) 128, 364, 365 Capacity to (See Capacity) 114 Index. 675 [References are to sections] MORTGAGE— Co7v*i»«e(J. Certificate of no set-off 133 Certificate of residence of mortgagee 109 Chattel 110 Compared with ground rents 171 Compared with long term leases 343 Consideration necessity for 102 Conveyance portion of 107 a fee simple deed 107 contains description 107 Corporation 119 power of attorney specifying person authorized to satisfy, assign, etc., must be recorded 146 Debt or premises 107 not necessary to state amount or nature of 107 clause in mortgage, what it contains 107 Declaration of no set-off 133 cannot be required 133 form of 133 effect of 133 Defeasance a contemporaneous agreement converting deed to pledge . 107, 123 clause of 107 makes void, conditions on performance 107, 123 should be annexed to conveyance to save diflSculty 123 separate defeasance is void against subsequent grantee or mortgagee for value unless recorded 123 must be delivered by grantee 123 must be in writing 123 must be signed by grantee 123 Definition of 99 Description in 107 Devise of land subject to 276 Disabilities in creating (See Capacity) 115-119 Discharge of by judicial sale 150, 205 effect on mortgage lien 150, 205 purchaser 's title 198, 205 by merger 149 mortgagor can keep mortgage alive after payment .... 149 by order of court 147 jurisdiction 147 no payment of principal or interest for twenty years 147 when holder has died 147 when holder has not satisfied 147 676 Conveyancing in Pennsylvania. [Eeferences are to sections] MOHTQAQ^— Continued. by payment (See Mortgages, Payment of) 144 actual 144 presumed 147 by release 148 agreement to execute 148 effect of sale of portion 142, 148 from trustees must be supported by consideration .... 148 should be recorded 148 satisfaction of record original must be produced 146 when original lost 146, 147 Equitable bona fide purchasers not affected by 125 definition of 125 in Pennsylvania 125 Equity of redemption of 125 origin of 101 development of law of 101 cannot be contracted away 101 Fixtures 113 First 126 Foreclosure by sci. fa. in Pennsylvania 152 Foreclosure, origin of 100, 101 Form of, in general 106 Formal parts of debt or premises 107 security or conveyance 107 defeasance 107 History and development of 100 Index of 182, 369, 373 Kinds of 121-128 Judicial sale 150, 204 Leasehold Ill Lien not divested by judicial sale, when 150, 204 Lien on mortgaged property dates from recording 143 Made by corporations bondholders ' right to foreclosure 120 chattel 110 not for profit may mortgage up to $500,000 at 6 per cent. 119 power of, restricted by Constitution of Pennsylvania 119 to secure bond issue 120 when an increase of indebtedness, certain legal requirements must be complied with 119 if to secure existing indebtedness these requiremnts not necessary 119 Index. 677 [Eeferencea are to sections] MORTGAGE— Continued. Made by fiduciaries 117 power to sell implies power to 37, 118 without power to sell, power to mortgage must be ex- pressly given 37, 118 lunatics 117 married men wife need not join 115 bar 's dower unless fraudulent 115 married women husband must join 115, 250 (7) may mortgage for husband's debt 115 minors 116 Maturity of 144, 364 Modern, differs from common law 103 Mortuum vadium at common law 101 Nature of, in Pennsylvania 103 No set-off, declaration or certificate of 133 Origin of equity of redemption of 101 Parties to a 114 Payment of building association, before maturity 144, 364 by mortgagor before maturity 144 discharges 144 dispute in, money may be paid into court 144 presumption of 147 to mortgagee without notice of assignment 132, 136 Principal parts of 107 Proceedings to satisfy when presumed paid 147 Purchase money can be given to third party 121 definition of 121 lien dates from time of execution if recorded in 30 days ... 121 lien takes precedence over prior judgment entered against purchaser 121 presumption where two executed same day 121, 127 recording of 121 second mortgage clause in subsequent mortgage 127 when necessary to disclose on face of mortgage that it is for purchase money 121 Eatification of, by minor 116 Recording of (See Eecording) failure in, protects bona fide purchasers and creditors only 143 lien dates from time of 143 purchase money mortgage, from date of execution .... 121 678 Conveyancing in Pennsylvania. [References are to sectiona] UO'RTQAG'E— Continued. Release of may be oral 148 should be recorded 148 under blanket mortgage 148 when property sold in parts 139, 148 Remedies of mortgagee upon default 151, 152 Eights of mortgagee (See Mortgagee) 105 Rights of mortgagor (See Mortgagor) 104 Eights of third party who pays mortgage debt 145 when entitled to subrogation 145 when not entitled to subrogation 145 Sale of property subject to a mortgage 137-142 rights of mortgagee vs. mortgagor (vendor) 138 mortgagor continues liable 138 rights of mortgagee vs. purchaser 140 none unless purchaser assumed debt 140 effect of Act of 1878, P. L. 205, 140, 141 rights of mortgagor vs. purchaser mortgagor is surety and entitled to reimbursement . . . 141 in parts 139 parts liable in inverse order of sale 139 Satisfaction of by mortgagee 146 by order of court 147 fraudulent, by mortgagee after assignment 135 married woman may order, without joinder of husband . . . 115 unauthorized satisfaction by mortgagee after assignment 135 under power of attorney 146 Sei. fa attorney 's commission in 107 clause in 107 judgment on, binds only mortgaged property 152 proceedings under 152 usual method of proceedings 152 Seal, necessity for 106 Search for 373 Second in building associations 364, 365, 366 second mortgage lien 127 under and subject clause 127 when imperative 127 Secondary or collateral obligation, mortgage is a 102 Signature of mortgagee not necessary 106 Status of mortgagee is personalty for most purposes 105 is real estate for purpose of collecting debt 105 Index. 679 [Eeferences are to sections] M.O'RTGAG'E— Continued. Status of mortgagor is real estate 104 personal liability 104 Straw man use of, in mortgages 139 Subrogation right to, by third person paying mortgage debt 145 Time within which must be recorded 143 To be recorded in separate book 182 Unrecorded, good against mortgagor, his heirs and devisees . . 143, 184 good against purchasers with notice 184 Vendor 's lien analogous to mortgage 124 Vivum vadium at common law 100 Warrant of attorney with 108, 151 "What may be mortgaged, in general 110 MORTGAGEE Can enjoin waste 105 Certificate of residence of 109 Foreclosure by 101 Jiidgments against, are not liens upon mortgage property 105 Remedies upon default ejectment 151 foreclosure by aci. fa 151, 152 procedure on bond and warrant 151 lien of judgment on bond dates back to date of record- ing mortgage 151 Rights when property sold can hold mortgagor 138 cannot hold purchaser unless latter assumes debt 140 in parts 139 Status of interest is personalty 103, 105 interest is real estate for purposes of enforcing security . . 103, 105 descends to administrator or executor 105 right to possession after default 105 MORTGAGOR Declaration of no set-off by 134 Is obligor of debt 104 Liability to assignee 132 under bond 132 under note 132 Liability to second assignee 134 Personal liability after sale of the property continues 138 may be avoided by use of straw man 139 680 Conveyancing in Pennsylvania. [References are to sections] M.OUTGAGOR—Con.Unud. may be terminated by compliance with Act of 1903 P. L. 327 139 Eights against purchaser of mortgaged premises 141 Eight to redeem 101 cannot be contracted away 101 Status of right to possession 104 liable for taxes 104 bears risk of loss 104 interest is real estate 104 descends to heirs 104 MOETUUM VADIUM 100 MOTHEE Descent to, under intestate laws (See Descent) MUlSflOIPAL LIENS Nature of 204 Sales under 204 Search for 381 Suggestions as to, in drawing agreement of sale 67 (4) Time for filing 204 NAMES Of parties to deed (See Deeds) NATITEAL HEIRS (See Descent: Heirs) NEXT OF KIN Eights of, under intestate laws (See Descent) NON-SUPPORT May bar curtesy 247, 253 NO SET-OFF (See Forms; Mortgages) Certificate or declaration of 133 NOTARY PUBLIC Acknowledgment of deed before 95 Application for office of 96 Commission of, must be recorded 96 Fees authorized by legislature 96 Female, marrying, must return commission 96 How to become one 96 In Pennsylvania, power to take acknowledgment, etc 95 May act outside of county for which commissioned 95 May be appointed by governor when Senate not in session .... 96 Must affix seal 94 Must append date of expiration of commission 94 Must file bond before qualifying for office 96 Of any state or territory of United States, power to take ac- knowledgments, etc '. . . 95 Should inquire grantor 's identity 92 Index. 681 [References are to sections] NOTAEY FVBJjlC—Contmuea. When director or officer of bank, etc., may not act as, for his company 94 NOTICE (See Recording) Actual 178 Constructive 178 Possession is always 178 To world by recording 177 "When recording is not 176 NOTICE TO QUIT (See Landlord and Tenant) 335 NUNCUPATIVE WILLS 261, 266 OATHS (See Acknowledgments) OBJECTIONS Form of affidavit to remove from settlement certificate (See Forms) On settlement certificate 389 OFFICERS Discharge of army and naval may be recorded 189 Of other state with power in own state may take acknowledg- ments 95 ORAL AGREEMENT (See Agreements of Sale) ORAL GIFT When enforceable 63 ORAL LEASES 306, 309 ORDINANCES Vacating streets, lanes or alleys may be recorded 189 ORPHANS' COURT SALES By executor 201 guardian 201 trustee 201 Discharge of liens by 205 Kinds of by fiduciaries 201 partition 194, 199 under Price Act 199, 203 Purchaser takes clear title, free of obligation as to application of proceeds 199 To pay decedent 's debts 200 Under Price Act 203 OWELTY IN PARTITION 194 OWNERSHIP Change of 8 Definition of 20 Kinds of 9 682 Conveyancing in Pbnnsyi.vania. [References are to sections] PARTITION (See Forms) At law 194 Decree in, operates to vest clear title in persons to whom land is allotted 194 Efeeet of decree in 194 Estate for years not subject to 308 In equity 194 In Orphans ' Court 194 Owelty in 194 Procedure in 194 Partition Act of 1917, 194, 199 Sales in 194, 199 purchaser takes clear title, free of obligation as to disposi- tion of proceeds 199 PARTIES To a deed 74 To a ground rent 155 To a lease 302 To a mortgage 114 PARTNERS Descent of land held by 42 Land purchased for firm use should be so set out in deed 42 Real estate held by, for purpose of business considered as per- sonalty 42 Real estate of, not bound by judgments against partners indi- vidually 42 Tenancy in 19 Act of March 26, 1915 19 PARTY WALLS Boundary presumed to be in center of 299 Compensation for use of not required when first builder also owned adjacent lot .... 300 right to, may be sold to any person 300 when payable 300 who required to pay 300 when runs with the land 300 Definition of 299 Legal requirements as to thickness 299 May be placed partly on neighbor 's land 299 Old wall can be torn down to construct heavier 300 Openings in 299 Origin of rules governing 299 Right to encroach on neighbor 's land, regardless of injury .... 299 "Wall wholly upon one lot, is not 300 may be made such by agreement 301 Index. 683 [Eeferencea are to sections] PATENT Form of recital of title by (See Forms) Granted by commonwealth may be recorded 189 PAYMENT Discharge of mortgage by 144 Of building association mortgage 364 Presumption of, in mortgage 147 in ground rent 164 To mortgagee without notice of assignment 132 PER CAPITA Meaning of 245 PEEPECT TITLE Exists when 22 PERSONAL Liability of grantee of property subject to ground rent 160 subject to mortgage 138 grantor of property subject to ground rent 160 mortgagor after sale of premises 138 avoidance of by use of straw man 139 by tender, refusal and decree of court 139 tenant after assignment of lease 329 transferee of tenant 's interests 329 Property distinguished from real 7 leasehold interest is 308 mortgagee 's interest is 105 partnership real estate is 42 PERSONS Of unsound mind who are 30, 265 Persons under duress who are 34, 265 PER STIRPES Meaning of 245 POLL, DEED Differs from indenture 70 Executed by one party 70 PONDS As boundaries 298 Title to bed of 291, 292, 298 POSSESSION (See Adverse Possession) Actual 178 By buyer under agreement of sale 67 (2) Clause in agreement of sale 52 684 Conveyancing in Pennsylvania. [References are to sections] POSSESSION— ComiWMed. Constructive 178 Effect of 22 Estates in, distinguished from estates in future 13 Is notice 58, 178, 310 Naked 21 Of deed by grantee, presumption of delivery 89 Of deeds, presumption arising from , 89 Eights based on 21 Tenant 's right to, exclusive 313, 314 Under oral contract 63 POSTHUMOUS CHILDREN Rights under Intestate Laws 247 (3) POWERS OF Appointment exercise of, by will 271 Attorney acknowledgment of deed by 92 corporation must record authority of persons authorized to satisfy, assign or otherwise deal with mortgages 146 recording of 146, 189 to authorize agent to sign agreement of sale 44, 55 to satisfy a mortgage 146 POWER OP EMINENT DOMAIN (See Emiaent Domain) PREMISES In deed 72, 80 In mortgage 107 PRESCRIPTION, EASEMENTS BY (See Easements) 218 PRESUMED DECEDENTS Administration of estates of 256 PRESUMPTION Against duress in deeds 34 Against undue influence in wills 265 Of delivery of deed 89 Of discharge of ground rent by lapse of time 164 mortgage by lapse of time 147 Of implied lease 311 Of lost grant as basis for easement by prescription 218 Of non-delivery of deed 89, 90 Of ratification by minor on attaining majority 33, 116 Of sanity 30, 265 Rules of, governing acceptance of surrender of lease 334 delivery of deed 89 description in deeds 295-299 intent to dedicate 235, 236, 237 Index. 685 [Eeferences are to sections] PEICE ACT Covers every conceivable ease where owner of land has no power to convey 203 Purpose of 203 Sales under disposition of proceeds of 203 may be public or private 203 procedure in 203 title acquired by purchaser at 203 what court has jurisdiction of 203 when authorized 203 Scope of 203 PRINCIPAL (See Agents) PROBATE (See Forms) Of deeds if no subscribing witnesses 97 meaning of 97 permits recording 97 where grantor dead or unable to appear 97 Of wills (see Wills) 265, 280 PROPERTY Distinction between descent of personal and real, abolished by Intestate Act of 1917 243 Estate for years is personal 308, 343 Lease is personal 308 Mortgagee 's interest is personal 105 Partner 's real estate considered as personal 42 Personal, distinguished from real 7 PURCHASE Definition of title acquired by 25 PURCHASE MONEY MORTGAGE (See Mortgage) PURCHASER (See Bona Fide Purchaser) At Orphans ' Court sale 199 At sheriff's sale 198 right of 205 takes free of wife 's dower 250 when property subject to lease 333 At tax sale 804 Of land subject to ground rent 160 lease 328 mortgage 137-142 Eights and liabilities of, under agreement of sale (See Agree- ment of Sale) QUIET ENJOYMENT Implied covenant of, in lease 313 QUIT CLAIM DEED (See Forms) 686 Conveyancing in Pennsylvania. [References are to sections] RATIFICATION By minor upon becoming of age 3, 116 Of acts of agent by principal 55 READING Necessity for, by grantor before signing 84 REAL ESTATE Corporations capacity to hold and convey land 28 to mortgage 119 Does not pass to executor or administrator 37 unless insufficient personalty to pay descendant's debts .... 37 Fixtures as 51, 113, 338 Ground rent is 156 Modern business in 344, 387 Purchased by partnership, treated as personalty 42 REAL PROPERTY Distinguished from personal 7 RECEIPT For installments of mortgage may be recorded 189 For redemption of laud sold for taxes may be recorded 189 For taxes on unseated land may be recorded 189 In deeds, not conclusive 75, 83 RECITAL (See Forms) In deeds as an aid in searching title 77, 78 In deeds generally (See Deeds) In deed of fiduciary 30 or mortgage by feme sole trader 36 where land purchased for use of partnership 42 of person who acquired title by descent 260 of person who acquired title by will 282 RECORDER OF DEEDS Cannot record mortgage, assignment, etc., without certificate of address of obligee 109 Duty to index deeds and mortgages 182 Duty to indorse time of receipt of mortgage, etc 182 Duty to transcribe deeds and mortgages 182 Effect of mistake by 183 Exemplified records by, as evidence 173 Power to administer oaths, etc 95 RECORDING Agreement of sale 56, 58, 188 Assignments for benefit of creditors 189 Assignment of mortgage 136, 187 Bankruptcy certificates 189 Constructive notice 178 Index. 687 [Eeferences are to sections] EECOEDING_Coji