1 " 
 
 
KFhJ 
 
 Agent for the following Office Buildings : 
 
 \J9^1 corn exchange bank building, 
 
 NATIONAL BANK OF COMMERCE BUILDING, 
 
 HOME LIFE INSURANCE CO.'S BUILDING, 
 METROPOLITAN LIFE INSURANCE CO.'S BUILDING, 
 AMKRICAN TRACT SOCIETY BUILDING, 
 
 NEW YORK COFFEE EXCHANGE BUILDING. 
 
 BROKER. AGENT. 
 
 GEO. R. READ, 
 
 Real Estate 
 
 flain Office, No. 9 Pine Street, 
 
 USTOR BUILDING) 
 
 Uptown Office, No. 1 fladison Avenue, 
 
 (metropolitan life building) 
 
 JEW YORK CITY. 
 
 AUCTIONEER. APPRAISER. 
 
 Agent for the following Office Buildings : 
 
 LANCASHIRE INSURANCE COMPANY'S BUILDING, 
 
 ASTOR BUILDING, 
 
 CONSTABLE BUILDING, 
 
 J. MONROE TAYLOR BUILDING, 
 DOWNEY BUILDING, 
 
 WALLACE BUILDING, 
 
 EDISON BUILDING, 
 
 SHELDON BUILDING, 
 
 BEARD BUILDING, Etc. 
 
law u^ a 
 
 Cornell University Library 
 KFN5140.V27 
 
 Real estate record :auide i to buyers and 
 
 3 1924 022 803 864 
 
 djornrll Idaui ^ri^onl Hibrary 
 
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/cu31924022803864 
 
REAL ESTATE RECORD 
 
 GUIDE TO BUYERS AND SELLERS 
 OF REAL ESTATE 
 
 HOW TO DRAW A CONTRACT. 
 
 By 
 
 GEO. W. VAN SICLEN, 
 Counsellor-at-Law. 
 
 'When I can read my title dear."— Dr. Watts. 
 
 SECOND EDITION. 
 
 Together with 
 
 THE REAL PROPERTY LAW 
 
 of the State of New York, which takes effect October 1, 1890. 
 
 INDEXED. 
 
 THE REAL ESTATE RECORD AND BUILDERS' GUIDE, 
 Publishers. 
 14-16 Vesey Street, New York, 
 1896. 
 
Copyright 1896 
 
 By the real Estate Becokd association 
 
 16 Veaey Street, New York. 
 
 D^T2 7^05 
 
CONTENTS. 
 
 Preface . . . i-H 
 
 Guide to Buyers and Sellers of Real Estate . 1-5 1 
 
 A Form of Careful Contract . . 52-54 
 
 Simple Form of Contract . . 54-55 
 
 A Good Form for Exchange .56 
 
 Index to " Guide to Buyers and Sellers " 57-5S 
 
 The Real Property Law 59-125 
 
 Schedule of Laws Repealed 126 
 
 Analytical Index to The Real Property Law 127-165 
 
Printed by 
 
 The Eecoed And Guide Press, 
 
 227 william st., n. y. 
 
PREFACE. 
 
 It is certainly pleasant to have one's publisher insist on a 
 second edition. The three thousand copies of the first edi- 
 tion of this Handybook were some time ago exhausted. The 
 Title Guarantee and Trust Company, of New York, which I 
 planned and founded in 1883 upon the lines laid down herein, 
 has grown, under other management than my own, from a cap- 
 ital of $500,000, to have a capital and surplus of about $4,500,- 
 000, and transacted in 1895-6 a business of over $20,000,000. 
 
 But few changes need to be made in the text of the book. The 
 New York Court of Appeals has recently, May, 1896, differed 
 from my views in regard to a quitclaim deed (see p. 31), and 
 held in the case of Wilhelm vs. Wilken, that a purchaser by a 
 quitclaim deed can be a bona fide purchaser for value without 
 notice, and protected by the Recording Act. 
 
 In affirming this proposition the opinion of the Court which 
 was prepared by Justice Gray, and in which all concurred, stated: 
 "The practice of transferring title to real estate through quit- 
 claim deeds has not been uncommon in this State, and, in the 
 absence of any facts creating a suspicion as to the transaction of 
 transfer, there is nothing especially significant in the use of such 
 a mode of conveyance. The point is, what is effected by the deed; 
 and where, as in the present case, the subject of the release and 
 quitclaim is a certain particularly described property with all the 
 appurtenances and all the estate, right, title and interest of the 
 grantor, with the "habendum" to the grantee, her heirs and as- 
 signs forever, a. conveyance of the real estate, within the meaning 
 of the act, is evident. The terms of such a deed imply that Tall- 
 man professed to have an interest in the premises, which he could 
 convey, and it is the duty of the Court to so construe a deed, pur- 
 porting to convey land for a valuable consideration, as to give 
 effect to the intentions of the parties, and to hold it to be a con- 
 veyance of the land." 
 
 I did not use to think so. 
 
 And it is, perhaps, not necessary to require a husband to join 
 with his wife in executing a deed (see p. 22), in view of the 
 statute authorizing a wife to make a will or sell her real estate 
 without the consent of her husband; but until the husband's 
 right by the curtesy is explicitly abolished by law, situations 
 can arise in which a careful conveyancer may be in doubt as to 
 whether there may not yet be a husband living who could claim 
 a life estate in property his wife had conveyed. 
 
 Many of the reforms suggested and indicated in the first edi- 
 
PREFACE. 
 
 tion of this book, having been also independently suggested 
 and urged by Mr. Dwight H. Olmstead, and by other able law- 
 yers interested in the public welfare, have been adopted by 
 the State Legislature, and short forms of deeds and mortgages 
 have been legalized and encouraged, and the "Block system" 
 adopted for New York City and Brooklyn for recording and in- 
 dexing conveyances, etc., as against the parcel of property 
 rather than the name of the grantor. 
 
 The methods of transferring ownership, and of mortgaging 
 real estate can be still greatly simplified; it can be dealt in by 
 the use of certificates like certificates of stock, or warehouse 
 certificates; but the time has not yet come. In the meantime, 
 however, since the first edition of this book appeared in 1885, 
 several good statutes have been passed by the New York Legis- 
 lature effecting great saving of labor and simplicity of plan in 
 recording and indexing transfers of real estate. And finally in 
 1896, a Real Property Law has been passed, to take effect Octo- 
 ber 1, 1896, which is intended to embody all the statutory law of 
 New York upon this subject. The commissioners for codifica- 
 tion seem to have done their work well; it will take time, how- 
 ever, to prove it. That Code is printed as a necessary Appendix 
 to this volume. 
 
 The passage of that law has rendered useless quite a number 
 of notes and remarks intended for this second edition; but the 
 Index to it appended hereto will be found worth the price of this 
 b00k - GEO. W. VAN SICLEN. 
 
 No. 132 Nassau street, New York, July 1, 1896. 
 
REAL ESTATE RECORD 
 
 GUIDE TO 
 
 Buyers and Sellers of Real Estate. 
 
 When a man has decided to buy a house and lot, or a vacant lot, 
 or a farm, the question arises, what shall he do to protect himself 
 in making his written contract for the purchase ? 
 
 For while occasionally men are found foolish enough to pay for 
 their land first, and take their chances as to faults in the title turn- 
 ing up afterwards, very much as many plunge into matrimony, 
 marrying in haste to repent at leisure, yet the opportunities for 
 thorough investigation are so ample in the former venture, that few 
 make it until they have taken time to investigate ; and besides prep- 
 aration usually has to be made for the payment of the price. 
 
 Take Time. — Assuming, then, that you will certainly not risk 
 your money without having the title searched, take care first to 
 allow yourself ample time for this before the date when you are to 
 take your deed and pay your money. The customary time is thirty 
 days ; and the reasons why so long a time must be allowed, at least 
 in large cities like New York, are these : In the first place the law 
 says that the County Clerk and the Register shall have twenty days 
 to make their returns to your searches after you put the latter in ; 
 and if you want your work done any sooner, of course you have 
 to pay extra for it ; for instance, if the lawful charge for the 
 necessary official searches against your piece of property were twenty 
 dollars for the County Clerk and thirty dollars for the Register, and 
 you want them done in a week, you will have to pay fifty per cent, 
 extra, that is ten dollars more to the County Clerk and fifteen dol- 
 lars additional to the Register, to get them in that time ; and very 
 properly so, for to accomplish such an amount of labor, the careful 
 . official searchers have to work, to dig into the volumes of records, 
 night and day. ^In the city of New York alone there were twelve 
 thousand two hundred and sixty-two deeds recorded during the year 
 1884, conveying houses and lots for the expressed consideration of 
 one hundred and eighty-two millions of dollars ; three thousand 
 and sixty-one of those deeds were for nominal considerations, and 
 probably were only for the purpose of curing defects in titles, or by 
 way of gift from parents to children, etc. ; that would make nine 
 thousand two hundred titles to be searched for the purchase of 
 property ; but besides this there were ten thousand two hundred 
 
4 REAL ESTATE CONTRACTS. 
 
 and thirty-nine mortgages recorded for one hundred eighteen mil 
 lions of dollars ; this would require nineteen thousand four hundred 
 searches to be made by the corps of official searchers in each of the 
 before mentioned offices, in the year of three hundred and five 
 working days or over sixty-four searches for each day ; and the 
 deeds and mortgages in the Register's office alone are contained in 
 thirty-seven hundred and sixty-five huge volumes, the indexes to 
 which must be carefully examined ; so you see you must give time 
 for the searchers to do your work, and you ought very properly 
 to pay them extra if you crowd them. But your lawyer who is 
 to examine your title must have two or three days to look into the 
 abstract and papers that you should get from the seller, so as to 
 know just what official searches (and how few of them as possible), 
 to have made ; and then after the official searches have been made, 
 and certified to by the Register and the County Clerk, and paid for, 
 your lawyer must go to the books of record, and take down each 
 volume cited, and examine it carefully to see exactly what the 
 instrument contains, and that it makes your title good ; and that 
 takes several days more ; so that thirty days are a proper and reason- 
 able time for an ordinary title ; if you are buying a big Westchester 
 County farm of several hundred acres, made up of thirteen smaller 
 farms, so that there are really thirteen titles to examine, thirty days 
 are not long enough. 
 
 Examine the Title. — Many otherwise intelligent people do not 
 understand at all the work which a real estate lawyer has to do, 
 and to be fit for which he must study night and day all his life, and 
 they think that if an official search from the County Clerk and 
 Register only comes back showing a connected chain of deeds clear 
 from judgments, that that is all they need to know, and that the 
 lawyer has nothing to do. 
 
 This is one of the gravest of errors. 
 
 The Register, and County Clerk, don't know anything about the 
 correctness of your title ; this is not in the least to their discredit : 
 they don't pretend to know ; it is not their business, nor their duty, 
 to know if the title be good ; they only tell you at what pages in what 
 books of record in their offices you can find deeds and mortgages, 
 etc., which affect the piece of property you inquire about ; but how 
 the property is affected, you must find out for yourself, and for that 
 you must employ a man learned in the law. It is really surprising 
 how many otherwise able business men misunderstand this, to then- 
 great risk. I have in mind now the head of a large house, liberal, 
 fair, but who frequently employs to "examine" the titles of the 
 houses he buys, a very honest, worthy, intelligent real estate broker, 
 who has bought and sold and inspected and insured many houses, 
 and who is a very safe guide as to values, and who knows how to 
 make out an official search, but who knows no more about the con- 
 struction of wills, and deeds, and statutes, than a lawyer knows 
 how to make a watch ; but my friend employs him, and congratu- 
 
REAL ESTATE CONTRACTS. a 
 
 (ates himself from time to time that he is saving another hundred 
 dollars. 
 
 A fair toast at a dinner of the Bar is " Here's to the man who 
 draws his own will, and searches his own title !" 
 
 It is not to be wondered at that those who buy real estate, or who 
 borrow on bond and mortgage, grumble and rebel at the bills which 
 they have to pay their lawyers for the examination of title ; but 
 it is not the lawyers' fault : it is largely the result of circumstances 
 which ought to be and can be corrected ; which are partly due to 
 the enormous growth of dealings in real estate ; and which must 
 soon be corrected, or it will be physically impossible to examine a 
 title in a reasonable time in the City of New York. 
 
 Multiplication of Fees. — Not long ago the Jumel property was 
 cnt up into thirteen hundred and eighty-three pieces or parcels of 
 real estate and sold at partition sale. There appear to have been 
 about three hundred purchasers at that sale, and no doubt each 
 buyer, before he paid his money, carefully employed a good lawyer 
 to examine the title to the lot or plot that he had bought ; so that 
 probably three hundred lawyers each of them carefully examined 
 and went through the same work — viz. , the old deeds and mort- 
 gages and records affecting the whole property (for as it had never 
 been cut up before, each had to examine the title of the whole, no 
 matter how small his parcel), and each of them searched the same 
 volumes of long lists of names and picked out from the thirty-five 
 hundred volumes of deeds and mortgages then in the New York 
 Register's office the same big, dusty volumes of writing, and lifted 
 them down and looked them through — in all three hundred times 
 the very same labor. 
 
 Evidently two hundred and ninety-nine times that labor was 
 thrown away — done over and over again uselessly. 
 
 And the clients, those buyers, together paid three hundred fees 
 to those lawyers, who each earned his money, but evidently two 
 hundred and ninety-nine of those fees were for repetitions of the 
 very same work. 
 
 By and by, twenty years from now, instead of only three 
 hundred owners of those Jumel plots, the whole thirteen 
 hundred and eighty-three lots will be sold and built upon, 
 and thirteen hundred and eighty-three new purchasers will 
 again pay thirteen hundred and eighty-three lawyers thirteen 
 hundred and eighty-three fees for examining that same Jumel title, 
 only the fees will be larger, for there will by that time (at the pres- 
 ent rate of growth, and unless a remedy be soon applied) be fully 
 ten thousand big folio volumes in the Hall of Records, and the 
 whole thirteen hundred and eighty-three fees will be for mere rep- 
 etitions of labor so far as the whole Jumel estate title down to 1883 
 is concerned, and will be practically wasted. 
 
 Fees. — Not only that, but to-day, in examining that title for a 
 purchaser, his lawyer carefully puts in official searches. He makes 
 
6 REAL ESTATE CONTRACTS. 
 
 a requisition on the Register for all deeds, conveyances, mortgages 
 and instruments in writing on record in his office affecting the par- 
 cel -whose title he is examining, and, of course, the Register care- 
 fully returns on his search all the old deeds, &c, affecting the 
 whole property — because they affect the parcel — and he charges and 
 gets by law five cents for each year for each name searched against 
 for deeds, and five cents per year per name for mortgages. Alto- 
 gether, say $20 is paid by each purchaser for those searches; but as 
 there were three hundred purchasers, and they put in three hundred 
 searches, the Register gets three hundred times twenty dollars for 
 the same work; and twenty years hence thirteen hundred and 
 eighty-three purchasers will again pay the then Register thirteen 
 hundred and eighty-three times twenty dollars, or more, for a 
 search showing those very same facts. 
 
 But this is not all. In the County Clerk's office are the records 
 of judgments and of notices of suits brought affecting the title to 
 real estate (lis pendens, lawyers call them), and of mechanics' hens, 
 certificates of Sheriffs' and Marshals' sales, insolvent assignments, 
 general assignments, foreclosure by advertisement, appointment of 
 receivers, appointment of trustees of absconding, concealed, non- 
 resident or imprisoned debtors, and the law gives the County Clerk 
 five cents per name per item per year for his search, and fifteen 
 cents per year for judgments, or say, seventy-five cents for every- 
 thing against one name for a year. So the three hundred pur- 
 chasers of the Jumel property go to the County Clerk, and each 
 pays him, say, twenty dollars for his search, being the same thing 
 uselessly repeated and the money wasted two hundred and ninety- 
 nine times; and twenty years hence it will all be paid over again 
 thirteen hundred and eighty-three times. 
 
 But then the purchaser is not done. He must put in searches 
 with the United States Commissioners and pay them about $1.25 for 
 their return, and the Clerk of the United States District Court for 
 bankruptcy and judgments charges $1, and the Clerk of the United 
 States Circuit Court for judgments must be paid $1 ; and each of 
 those items, like the Register's search, is to-day uselessly repeated, 
 and the charges therefore wasted two hundred and ninety-nine 
 times; and twenty years hence on that same property will be again 
 thrown away thirteen hundred and eighty-three times. 
 
 This sort of thing is daily repeated, year in and year out, in this 
 city, over the whole of its surface. The blocks of land bounded by 
 Fifty-fourth and Fifty-seventh Streets and Sixth and Eighth Ave- 
 nues were once all one estate, like the Jumel estate. They were the 
 Cozine property. Between Eighty-third and One Hundred and Sixth 
 Streets from Third to Eighth avenue, diagonally across, were the 
 Harlem Commons, and many New Yorkers can remember when the 
 Murray Hill farm, from Thirty-third Street to Thirty-eighth Street, 
 and between Madison and Lexington Avenues, was cut up into lots 
 and sold. And thus the whole surface of this city can be mapped 
 
REAL ESTATE CONTRACTS. K 
 
 out — in fact is mapped out — into old farm titles, each of which is 
 the original source of title of several hundred houses and lots. 
 
 And the same thing happens in regard to loans on bond and mort 
 gage. Every man who thus lends money must have the title ex 
 amined, and very properly bo, and the borrower has to pay for it — 
 the same old searches against the same old names — and pay the 
 same old fees. 
 
 The tax which the real estate of New York city thus annually 
 pays amounts to more than one per cent, of the real value of the 
 property sold and mortgaged ; and it is safe to say that at least one- 
 half of this burden is the result of useless repetition, of the want of 
 a good system in responsible hands, and is thrown away. 
 
 In the year 1882 there were nine thousand nine hundred and sev- 
 enty-five deeds and ten thousand five hundred and sixty-six mort- 
 gages recorded in the office of the Register of the City and County 
 of New York. Thus there were at least twenty thousand titles 
 examined and twenty thousand fees paid and twenty thousand sets 
 of searches paid for the same during that time. In 1883 it was 
 nineteen thousand five hundred odd, and in 1884 over twenty-two 
 thousand five hundred. 
 
 Bill. — The bill for examining title to the land for the new United 
 
 States Post Office in Brooklyn was between $7,000 and $8,000; but 
 
 an ordinary bill for examining the title and for a set of searches 
 
 for a house and lot worth, say $10,000, will contain items something 
 
 like these (they are taken from a bill lately rendered) : 
 
 ■William Client, 
 
 To John Counsellor, Dr., 
 
 To copy of abstract $10 00 
 
 To affidavit of John Smith (that he is not the John Smith there 
 
 is a judgment against) 1 00 
 
 To affidavit of William Jones 1 00 
 
 To paid for tax search 13 00 
 
 To paid for Register's search 22 45 
 
 To paid for County Clerk's search 34 15 
 
 To paid for United States District Court search 300 
 
 To paid for United States Circuit Court search 2 10 
 
 To paid for United States Loan Commissioners' search 2 50 
 
 To paid for certificate satisfaction Brown mortgage 25 
 
 To paid for recording deed 1 85 
 
 Copy of Abstract. — If we examine these items (and all who 
 have had experience in the matter will say that this is a very mod- 
 erate, small bill), we find " copy of abstract." Why should the old 
 chain of title be copied over and over again? Why not have it 
 done once for all and thoroughly by a responsible party, and filed 
 where access can be had to it at any time ? 
 
 Judgments. — Then look at the affidavits. Perhaps nine years 
 ago a judgment of $100 was filed against some impecunious John 
 Smith, and every time any one of the rest of the two columns of 
 John Smiths listed in the New York City Directory, and every time 
 each of his grantees has sold land or borrowed on mortgage, he has 
 had to make a similar affidavit— that he is not the man against 
 whom that judgment was obtained. 
 
8 REAL ESTATE CONTRACTS. 
 
 What's the use of the old judgment, anyway ? If it was obtained 
 against a man who had any property, it would have been long ago 
 collected (unless he appealed from it, and then he must have given 
 security); and who ever knew a judgment nine years old to be col- 
 lected out of the debtor's real estate? 
 
 But our law ties up and tangles up the property for ten years, to 
 the damage of everybody except the real debtor. If a judgment 
 should be a lien on real estate at all, it should be for not more than 
 one or two years. 
 
 Tax Search. — But to go back to our moderate bill — " tax search, 
 $13." There certainly ought to be (and there is) a way of noting 
 on the expensive tax maps and tax books of this city (for the cost 
 of which every tax-payer has already paid his share) every unpaid 
 tax or tax sale or assessment affecting each particular lot, so that it 
 could be seen whether it were clear or not without paying a fee 
 equal to the whole annual water rent of a medium-sized house. 
 And this has been lately accomplished in the Brooklyn Tax Office 
 by a system for ascertaining the arrears of taxes and assessments, 
 on the plan of indices against localities and not against names. 
 
 Of the Register's fees we have already spoken. It is calculated 
 that for the sixty thousand titles he received in 1882, 1883 and 1884 
 at least $300,000 in each year, besides $40,000 each year for 
 recording the deeds and mortgages. Probably $300,000 were paid 
 to the County Clerk for his searches during each of the same years. 
 
 While there are copyists and searchers to be paid in the Register's 
 office, but fifty copyists at $10 a week each only take $26,000 a 
 year off from the $340,000 receipts, and the searchers all receive 
 " extras," as already explained. Heretofore no part of any of these 
 fees has gone into the city treasury, but while the Legislature in 
 1884 put these officials upon salaries of $20,000 and $15,000 respect- 
 ively, the foregoing fees must hereafter be paid to the city, which 
 will be no relief to property owners. 
 
 New York city real estate must be a very good investment to 
 stand such a steady drain. 
 
 The other charges for United States Courts and Commissioners' 
 searches are for almost no work at all — for glancing over a half 
 empty page of a small folio volume in each case. The money is 
 thrown away, yet a careful lawyer must put in those searches to 
 make sure that he has protected his client. 
 
 Wrong System. — Several causes have brought about or now 
 contribute to this obviously wasteful, useless burden on real estate, 
 but passing by all others, we may say that the root of all this 
 trouble is the improper system of indexing deeds and mortgages by 
 the names of the parties to them, which is cumbersome, expensive 
 and full of errors in practice. 
 
 If you go to the Register's office now to find if Mr. James Robin- 
 son ever conveyed a certain lot on Broome street, you look through 
 several huge volumes of indices which are backed by the letter R, 
 
REAL ESTATE CONTRACTS. 9 
 
 and every time you come across the name of James Robinson you 
 note on your memorandum paper the book and page which you 
 find written opposite his name; by the time you have gone through 
 the indices you have notes of perhaps two hundred conveyances by 
 a man of that name, but you don't know whether any one of them 
 is a conveyance of the particular piece of property on Broome street; 
 there is nothing (nor can there be anything under the present sys- 
 tem of name indexing) to tell you what piece of property is con- 
 veyed by any one of those two hundred deeds that you have noted, 
 so you go deliberately to work and lift down the two hundred big, 
 dusty tomes and find the proper page in each, and read through the 
 three or four pages of manuscript and see if the Broome street piece 
 be described in any one of them. 
 
 And this is done over and over again, day in and day out, for all 
 the names of all the prior owners of each of the twenty thousand 
 parcels of land annually conveyed and mortgaged in this city. 
 Evidently this is an enormous waste of labor and of expense, if only 
 some way could be devised to prevent it. And again, the name you 
 are looking for may have been misspelled or mispronounced and 
 placed in the wrong column, and you may never find it at all, to 
 your great loss; for there are so many names that the pages of each 
 index book are ruled in columns right across both pages, and the 
 name is put in a separate column, according to the first two letters 
 which occur in the name, thus : 
 
 Date of 
 Record. 
 
 Grantors. 
 
 Grantors. 
 
 Grantors. 
 
 Grantee. 
 
 Lib. 
 
 Pase. 
 
 
 L.a. L.b. L.d. 
 
 i.e. L.f, L.h. 
 
 ** ** ** £.z. 
 
 
 
 
 1883. 
 Jan. 20. 
 
 Lamont, Edward, 
 et al. 
 
 
 
 Daniel Jones. 
 
 1,591 
 
 393 
 
 1883. 
 Jan. 21. 
 
 Lawrence, Wil- 
 liam, 
 Rebecca. 
 
 
 
 James Mar- 
 shall. 
 
 1,597 
 
 874 
 
 1883. 
 Jan. 22. 
 
 
 Levy Abram. 
 
 
 William Den- 
 ison. 
 
 1,598 
 
 89 
 
 
 
 
 
 
 
 
 If a reader of Irish extraction were dictating to a German copyist 
 for entry in that index the name of Mr. Abram Levy and should 
 pronounce it " Lavy," he might be correctly understood and the 
 name be placed in the second, its proper column ; but if a reader of 
 either of the foregoing nationalities were dictating to an American 
 
10 REAL ESTATE CONTRACTS. 
 
 born citizen, the chances are that Mr. Levy's name would go out of 
 place into the first column, and no searcher would ever find that he 
 had made a conveyance, and our Court of Appeals has held that the 
 index is no part of the record, so that if an instrument is recorded 
 it is notice whether indexed or not. 
 
 Again under this name system of indices, the transposition of a 
 single letter in the spelling of a name may throw the searcher off 
 his line of search entirely ; as in Greenbaum often spelled Gruen- 
 baum, Miller for Mueller, etc. A case recently occurred in Brooklyn 
 where a name was indexed as Fraendly instead of Traendly — and 
 this for a mortgage. But the worst evil is in the enormous accu- 
 mulation of written volumes (increasing at the rate of three hundred 
 per year), through which the searcher must wade, entailing a labor 
 almost physically impracticable ; by 1895, when three thousand 
 more volumes shall have been added, it will be impossible. 
 
 Not only does the examination of these books and indices involve 
 great personal labor and occupy much valuable time, but every 
 conscientious searcher of titles knows where and how the running 
 of long indices is attended with great responsibility and risk to the 
 searcher. A moment's abstraction of thought, a sudden interrup- 
 tion or other slight cause may render him liable to miss some con- 
 veyance or encumbrance seriously affecting the title under consid- 
 eration. His continuous use of the indices is frequently prevented 
 by the use of the books by others, when he must either wait his 
 turn or break the order of his search by taking up other indices, 
 thus adding another risk to this part of his duty. 
 
 Eight System, Locality Index. — The minds of practical men in 
 various places have been independently drawn to this problem, and 
 it has been found by all or nearly all of them who have stated their 
 conclusions that the remedy for this great evil is to arrange the 
 indices of the conveyances and mortgages upon a geographical 
 basis and not to have a name index at all (except for judgments); 
 to make it a locality index, so that a buyer or lender desiring to 
 know all the deeds and mortgages and lieDs on record affecting a 
 particular house and lot can turn first to a ward and block map, 
 something like the ward and block maps in the Tax Oflice of this 
 city, and there identify by its number the parcel he is searching 
 against, and then turn to another volume, which is numbered and 
 paged to correspond with the ward and lot number, and find in 
 that volume a page devoted to that particular lot, and on that page, 
 in regular order, each occupying but one line, find every deed, 
 mortgage and lien affecting that lot properly noted; then it will be 
 a brief and easy labor to examine the specific volumes of records 
 referred to. 
 
 If such a method be carefully, systematically and thoroughly 
 carried out, what an enormous saving of time, labor and money 1 
 
 It is plain that the labor of keeping such a set of indices up with 
 the daily records of deeds and mortgages is but a matter of detail. 
 
REAL ESTATE CONTRACTS. 
 
 11 
 
 For years the columns of The Record and Guide have weekly- 
 shown all the deeds and mortgages recorded in the Register's office 
 the week before, and the same careful hand which furnishes those 
 reports could continue to do so daily and clerks could daily assort the 
 same and post each item in its proper locality. 
 
 The chief difficulty to be overcome is to systematically, accur- 
 ately and thoroughly extract from the thirty-seven hundred and 
 sixty-five volumes now in the Register's office the items that are 
 now in that huge collection and which must be posted each to its 
 proper place. This, however, is a matter merely of time, of 
 patience, of system, of cost. It would have been well under way 
 now and largely accomplished but for the opposition on the part of 
 the Registers, who have refused to allow free access to the public 
 records in their charge for fear that the fees of the office will be 
 materially lessened, as indeed they will be, to the public benefit. 
 
 The matter of passing upon the correctness of the title to a piece 
 of property, after all the deeds, mortgages and liens affecting it are 
 Known, is, of course, a very different thing, and requires the ser- 
 vices of a studious, learned lawyer, as before explained. Many a 
 will is void, for example, for trying to tie up property for more 
 than the lives of two living people; but that would not appear on 
 the searches; and scores of similar questions constantly arise; hence 
 counsel will always be needed, and must be paid, for their study 
 and labor and knowledge. 
 
 But the full abstract of title of the old farms and large estates and 
 large pieces of property in the city can be made up and thoroughly 
 worked out and written or printed and well bound and indexed and 
 filed away once for all; and the block maps can be colored so as to 
 show on what old farm and under which of those old abstracts the 
 lots come, and thus save the useless repetition of the larger half of 
 this labor, while the later part of the title (since the partition or 
 other subdivision of the old farm or estate) can be worked out in 
 the usual way. Take, for example, a block in the Twentieth "Ward. 
 
 Thirtieth Street. 
 
 
 RED 
 
 
 
 S CO 
 
 to 
 
 
 
 
 
 
 GREE1 
 
 
 
 as / 
 
 
 
 
 
 
 
 CO 
 
 o 
 
 
 
 
 Twenty ninth Street. 
 
12 REAL ESTATE CONTRACTS. 
 
 Let red be Mary Clark's estate, abstract No. 9, and green Clement 
 C. Moore's estate, abstract No. 43. 
 
 Suppose that that block lay partly in two estates, the Mary Clarke 
 and the Clement C. Moore ; let us color red all in the former, and 
 on the other side of the boundary line make the rest of the block in 
 the Moore estate green ; one glance of your eye and you know the 
 title down to the partitions of those estates, the abstracts of which 
 are at hand, filed by the Nos. 9 and 43. This method with abstracts 
 has been for some time successfully used for the three or four square 
 miles of the neighboring village of College Point, in its Savings Bank, 
 the charge for the examination of the abstract title (exclusive of 
 official searches and papers and recording) averaging about twenty- 
 five to thirty dollars; the same system, or very similar, obtains in 
 several large conveyancing offices in the city. 
 
 The keeping up the chain of titles for a lot becomes thus a 
 mere matter of book-keeping ; take for example lot number 1330 in 
 the foregoing diagram ; in the first place 1330 is the tax number on 
 the city assessment rolls ; in the next place the block between 29th 
 and 30th streets, Ninth and Tenth avenues, like every block in the 
 city, is given a number of its own on the " Guide-map,'' and a sep- 
 arate volume of its own, the number of the volume corresponding 
 with the number of the Block on the Guide-map ; there are seldom 
 more than fifty-six lots, generally about thirty to forty, in any given 
 city block, so that one hundred pages give ample room in each vol- 
 ume ; then each lot is given one page, and the pages in the volume 
 are numbered to correspond with the tax numbers of the lots, and 
 are not numbered one, two, three, four, etc. ; thus in the foregoing 
 diagram the pages in the volume for that Block would be numbered 
 1327, 1329, 1330, 1332, etc. 
 
 An Index page with diagram begins each Block volume. 
 
 Turn to page 1330 for our example. 
 
 On the top line are written the location and dimensions of this 
 particular lot. 
 
 On the next line. " Abstracts 9 and 23." This shows that we are 
 to find the old farm titles of this lot (which have been so many 
 times examined and approved), handsomely written out and filed 
 away under those numbers, 9 and 23, the Mary Clarke and the 
 Clement C, Moore abstracts. 
 
 The next line shows the first recorded deed, with its bo6k and 
 page in the Register's office ; the next line the next deed or mort- 
 gage, somewhat in the following shape: 
 
 301 E. 10th Av., 24.9x99.11x24.9x99.11. 133 ° 
 
 Abstracts 9 and 23. 
 
 Mary Clarke to Wm. Jones, liber 93, p. 267. 
 
 C. C. Moore to Wm, Jones, fiber 100, p. 8. 
 
 Win. Jones to Edw. Lawrence, fiber 180, p. 45. 
 
 Edw'd Lawrence to Wm. Jones, $10,000 Mtge., liber 127 p 83 
 
 Edw'd Lawrence to P. Wilkie, liber 201, p. 594. ' 
 
 The clerk who writes in the mortgages always uses red ink ; this 
 
REAL ESTATE CONTRACTS. 13 
 
 shows those liens at a glance ; when a mortgage is paid off and can- 
 celed of record, one black line ruled through that line of writing 
 shows the fact distinctly the same thing should be done with the 
 lien known as lis pendens which shows that there is a lawsuit about 
 that particular lot), and with mechanics' hens. 
 
 Judgments, and all general liens allowed by law, will have io be 
 entered in a separate volume indexed by the names of the parties af 
 fected. 
 
 Of course, it will occur that some deeds and mortgages will in- 
 clude and cover many lots, and will have to be "posted" on the 
 page of each separate lot, just as the " Abstracts" are. 
 
 There are a number of little details about the particular lot, and 
 the particular deed or mortgage or tax sale or lien, that can be 
 noted on the particular line of the latter. 
 
 But each item affecting the title has its own line. 
 
 Assuming that something is done or occurs once every five years 
 to affect a lot, twenty lines would show the record of a hundred years, 
 which carries us back to the time when nearly all of the present 
 City of New York was in farms; (I.myself remember walking with 
 my father up to the country at Fourteenth Street and Broadway); 
 and a fair ledger page contains fifty to sixty lines, so the account of 
 a lot once begun will last quite awhile before it need be simply con- 
 tinued on a subsequent page. 
 
 Now when a buyer or a lender, or his lawyer, desires a chain of 
 title, let the searcher look at the Guide-map (which he will soon 
 know by heart), turn to the block volume, turn to the page having 
 the tax number, and in half an hour copy and verify the whole 
 chain of title; then examine the names in the judgment dockets, and 
 the work is done. 
 
 In a new country like one of our "Western States or Territories, or 
 like New Zealand, where very lately the title to the land originated 
 in a patent from the government, it is a comparatively easy matter 
 for the deeds and mortgages and judgments to be very soon system- 
 atically arranged so that the government itself, for a small fee, can 
 promptly issue a certificate of all deeds, &c, affecting the title to 
 a lot; and not only that, but as the title so recently came from the 
 government, and such few and simple rights have intervened, the 
 government itself can also guarantee the title, so that the chain of title 
 can be kept on the page of a ledger, and guaranteed certificates can 
 be issued to the owners, who can sell or mortgage the property by 
 simple transfer of the certificates, as in the case of a warehouse 
 receipt, from hand to hand, a new certificate being obtained from the 
 Land Office for a small fee. * But it is not practicable to apply this 
 guarantee in this way in this old city; for in the many transfers that 
 have taken place there have crept in rights of aliens and of infants, 
 and of lunatics, and disputes over wills, and varieties of other claims 
 which would make it unsafe for the city to pledge its credit and 
 its property and to risk guaranteeing all the titles of all the 
 
14 REAL ESTATE CONTRACTS. 
 
 houses and lots in its limits, especially as the safety of its guarantee 
 would depend on the correctness of examinations which would be 
 made by lawyers who would necessarily be politicians, unused to 
 the studious ways and sedate habits and careful, thoughtful 
 methods of counsel accustomed to examining titles. Besides, many 
 titles are in dispute and the city could not guarantee them, nor 
 could any law be constitutionally passed which should injure the 
 vested rights of many claimants by attempting to take away or an- 
 nul their claims, no matter how convenient it might be to the gen- 
 eral public. 
 
 Any systematized effort to remove the trammels which now im- 
 pede the transfer of real property must depend upon the accuracy 
 and conscientious fidelity with which details are carried out, for the 
 confidence it would deserve and receive at the hands of the public. 
 The practical difficulties are great and can only be overcome by 
 scrupulous performance of duty on the part of those intrusted with 
 the execution of details. The utmost care would have to be exercised in 
 the selection of those who abstracted from the records and of those 
 who verified the work. No principle but that of competence and 
 fidelity could prevail in the selection of the workers without dis- 
 aster coming upon the result of their labor. 
 
 The practical way to carry out such a system is to create special 
 corporations as trust companies, with sufficient capital, with power 
 to guarantee the titles to real estate, and with the right to make all 
 searches and copies of records, abstracts, indices, maps, &c, that 
 they may need for such purposes. This renders possible the exis- 
 tence of combinations of experienced men, of the highest reputation 
 for character and ability, who will by great labor and expense and 
 by the employment of systematic methods do the work once and for 
 all, and preserve the result of this work in available form for future 
 use. 
 
 It is obvious that such companies would, for their own protection, 
 take the utmost pains to secure the services of those who have had 
 the greatest experience and who have shown the highest degree of 
 skill in the successful conduct of similar work. The labor to be 
 performed is immense, and it requires legal knowledge and ability 
 of the highest order. The most perfect system and the most 
 thorough accuracy and reliability in every detail are absolutely 
 essential. If such a task should be managed as a political job it 
 could only result in a colossal failure and make matters much worse 
 than they are now. 
 
 Companies of the character alluded to are in successful operation 
 in Baltimore, Boston, Washington, Louisville and Philadelphia. 
 
 The labor which here requires weeks is, in these other cities, the 
 work of hours. The prices charged are uniform and moderate. 
 
 The guarantees of such companies protect purchasers of property 
 and mortgagees against risks which, though remote, always attend 
 real estate transactions. The most experienced lawyer may err, 
 
REAL ESTATE CONTRACTS. 15 
 
 especially where the law is undetermined, and fraud as an element 
 of danger increases with the growth of the city, though the nature 
 of such a company's work should render the perpetration of suc- 
 cessful fraud more difficult than at present. When a purchaser 
 loses by reason of error in an official certificate of search, suit 
 against the official leads to uncertain expense and vexation. A 
 company guaranteeing its searches should and would pay such 
 losses on notice given, be subrogated to the rights of the insured, 
 and conduct litigation in his stead. 
 
 With a guarantee policy of corporation of sufficient capital, whose 
 directors and stockholders should be the best lawyers and most con- 
 servative business men in this city, the owner of a piece of property 
 here could in a day turn it into money or obtain in the same time a 
 loan upon it on bond and mortgage, or get money from his bank 
 upon his own note without an indorser, with his mortgage and 
 guarantee policy as collateral, and real estate would be relieved 
 from the larger part of the burden of expense and delay which now 
 trammel its free use as capital. 
 
 The proper corporation to do this in New York city is our new 
 Real Estate Exchange. 
 
 Title Reform Two Hundred Years Ago. — Andrew Yarranton, 
 a shrewd Englishman, published over two hundred years ago a 
 book with the following extensive title ; " England's Improvement 
 by Sea and Land: To Outdo the Dutch without Fighting; To Pay 
 Debts without Moneys; To Set at Work the Poor of England with 
 the Growth of Our Own Lands; To prevent Unnecessary Law Suits 
 with the Benefits of a Voluntary Eegister; Directions where Vast 
 Quantities of Timber are to be had for the Building of Ships; With 
 the Advantage of Making the Great Eivers of England Navigable; 
 Rules to prevent Fires in London and other Great Cities; With 
 Directions how the several Companies of Handicraftsmen in Lon- 
 don may have Cheap Meat and Drink. By Andrew Yarranton, 
 Gent., London; Printed for the Author, byJRoger L'Estrange, 1677." 
 
 Andrew had been sent abroad by eleven private gentlemen, who 
 paid from their own pockets his expenses and those of an inter- 
 preter, that he might study and report upon all trades, manufac- 
 tures and improvements which he should deem it advantageous to 
 introduce into England. This book was written on his return. 
 The following extract gives his views on the subject of Land Title 
 Reform. 
 
 "Now, I will demonstrate to all men unbiassed the truth of 
 what I assert, and show them the condition the gentlemen and 
 people of England are in at this day, and also the condition the 
 Dutch are in at this day, in all their provinces. Let a gentleman 
 now in England, that hath a thousand pounds a year in land, that 
 owes four thonsand pounds, come to a money scrivenor and desire 
 four thousand pounds to be lent on all his land, and produce his 
 writings, and the estate hath been in the family two hundred years, 
 
18 SEAL ESTATE CONTRACTS. 
 
 I know at this day the answer will he, that by the law of England, 
 as it is now practiced, no man can know a title by writings, there 
 being so many ways to encumber land privately. And therefore, 
 the answer commonly is, ' Bring us security for the covenants, and 
 we will lend you the moneys.' The gentleman gets such friends as 
 he can procure to be bound for his covenants, whom, if they accept, 
 then the procurator and continuator have their game to play ; but 
 if he bring not such security as they like, he goeth without his four 
 thousand pounds, which is a sad and lamentable case, he having 
 lands worth a thousand pounds a year; and now he is put to his 
 shifts, his creditors come upon him, the charge of law-suits comes 
 on, all his affairs are distracted, his sons and daughters want money 
 to set them into the world. At last it is possible he gets two 
 thousand pounds a piece of two several persons, of one at York, and 
 of the other at London, and mortgages all his lands to each man. 
 This continues private for some years ; the while the gentleman 
 strives what he can to be honest, and prepare moneys to pay off one 
 of the mortgages. 
 
 But it commonly falls out otherwise, either through 'bad times' or 
 decay to tenants, great taxes, or the eldest son matching contrary 
 to his father's will, or oftentimes it is worse — he is so debauched no 
 one will match with him. Now the gentleman's miseries comes on, 
 and what must he then do? For the persons that have the land 
 mortgaged will not stay, because by this time it is discovered the 
 land is twice mortgaged. I tell you, the lawyers' harvest is now 
 come on, and the estate torn to pieces, and the gentleman, his wife 
 and family, and, it may be, creditors, too, undone. For seeing all 
 is in danger to be gone, the friends of the wife trump up a former 
 title to the two mortgages, and fence to get all the estate that 
 sheriff,- ■ bayliffs, solicitors and lawyers leave, to be to the uses 
 intended or pretended in the private settlement. But you will ask 
 me what the poor gentleman shall do to secure his person? I will 
 tell you what some have done, and many more, I know, must do, — 
 even turn over either to the Fleet or Bench. O pity and sin that it 
 should be so in brave England ! First, pity that a poor gentleman 
 cannot have moneys at such interest upon his lands as the law 
 directs, to pay his just debts, and for the good and comfort of his 
 family. Secondly, it is a sin that a gentleman of a thousand 
 pounds a-year should be the occasion of ruining so many families, 
 as he does, by putting them to such vexatious suits for their moneys 
 lent, and it may be at last lose all." 
 
 "In this posture, as you see, are many poor men in England, 
 which cannot borrow four thousand pounds of a thousand pounds 
 a-year land. I pray let us |see what posture a Dutchman stands 
 in, that hath one hundred pounds a year, and wants four thousand 
 pounds." 
 
 " Now, I am a Dutchman, and I have one hundred pounds a year 
 in the province of "West Friezland, near Groningen, and I come to 
 
REAL ESTATE CONTRACTS. 17 
 
 the bank at Amsterdam, and there tender a particular of my lands, 
 and how tenanted, being one hundred pounds a year in West Friez- 
 land, and desire them to lend me four thousand pounds, and I will 
 mortgage my land for it. The answer will be, I will send by the 
 post to the register of Groningen your particular, and at the return 
 of the post you shall have your answer. The register of Groningen 
 sends answer, it is my land and tenanted according to the particu- 
 lar. There is no more words, but tell out your moneys." 
 
 " Observe, all you that read this, and tell to your children this 
 strange thing, that paper in Holland is equal with moneys in Eng- 
 land. I refuse the moneys, I tell him I do not want moneys, I 
 want credit, and having one son at Venice, one at Noremburg, one 
 at Hamburg and one at Dantzick, where banks are, I desire four 
 tickets of credit, each of them for a thousand pounds, with letters 
 of advice directed to each of my sons, which is immediately done, 
 and I mortgage my lands at three in the hundred. Reader, I pray 
 observe, that every acre of land in the seven provioces trades all 
 the world over, and it is as good as ready money ; but in England 
 a poor gentleman cannot take up four thousand pounds upon his 
 land at six in the hundred interest, although he would mortgage a 
 thousand pounds a year for it. No , and many gentlemen at this 
 day, of five hundred pounds a year in land, cannot have credit to 
 live at a twelve-penny ordinary. If this be so, it is very clear and 
 evident that a man with one hundred pounds a year in Holland, 
 so convenienced as their titles are, and at the paying but three in 
 the hundred interest for the moneys lent, may sooner raise three 
 families, than a gentleman in England can raise one or preserve 
 the family in being, for the reasons already given." 
 
 Our New York system seema to be the child of the Holland 
 system of our Dutch ancestors ; but it has grown to such dimen- 
 sions here that it must be reformed again. 
 
 But at present, and until the recommendations that may be made 
 by the lately appointed able Land Transfer Commission shall be en- 
 acted into laws, we must take facts as we find them : many houses 
 and lots will be bought and sold and loaned upon before the reform 
 comes, and in the meantime you want to know what to do now. 
 
 Thirty Days Time. — In the first place, then, make the seller 
 allow you thirty days if possible, certainly twenty, before you are 
 to take the deed. Though it has lately been decided by the 
 Supreme Court in New York that a buyer who had contracted on 
 June 23d to complete his purchase on July 1st, and who on the 
 latter day requested an adjournment because he had been unable 
 to procure a search of the title to the property, which adjournment 
 was refused by the seller, was entitled to a reasonable extension of 
 time, where the only damage to the seller was loss of interest ; and 
 in this case the seller was ordered to give a deed (specific perform- 
 ance was decreed), the buyer having obtained a search and offered 
 to pay the money in the latter part of July. 
 
18 REAL ESTATE CONTRASTS. 
 
 Seller to Furnish Abstract. — In the next place see that it is 
 written in the contract that the seller will furnish you with an 
 abstract of title and official searches, or copies of accessible official 
 searches, down to a certain date — usually the date when he bought 
 it, or, if he put a mortgage on it since, then to the date of such 
 mortgage. This will save your lawyer considerable labor, and he 
 will not have to charge you so much for the examination ; the 
 labor of digging out a chain of title without any former abstract to 
 serve as a guide or clue, is indeed very great. In England the rule 
 is that the seller's lawyer prepares the abstract at the former's 
 expense, and the purchaser's lawyer examines the abstract, with 
 the deeds, at the purchaser's expense ; but that is not the rule here, 
 and although it is customary and usual for the seller to hand over 
 his abstract of title and other papers to you, you can't make him 
 do so, unless it is written in your contract. If he agrees to do it, 
 and fails, then you can make him foot the bill. 
 
 I said that you will have it written in your contract that you 
 shall receive 6uch an abstract. 
 
 The Contract must be "Written. — You know of course, that to 
 be binding, a bargain for the purchase or sale of real estate must be 
 in writing signed by the parties to be bound. Printing is writing. 
 So your contract may be partly a printed form, and partly written. 
 
 There are cases, however, in which the contract for the sale and 
 purchase of real estate need not be in writing; I refer to those cases 
 where the contract is already executed on one side; for instance, if 
 you agree to give me a deed of a certain house for five thousand 
 dollars, and I go into possession of the house, you can make me pay 
 you the money. But a grave drawback to an oral executed contract 
 is, that terms and conditions that are desirable are not thought of 
 at the time of making it (and you cannot make them up and put 
 them in afterwards). 
 
 But you are going to have a written contract. 
 
 What a Contract is. — A letter in terms repudiating liability, but 
 admitting the making of the contract, the letter being signed by 
 the party to be charged, has been received as a sufficient memor- 
 andum in writing. And the terms of the bargain may be gathered 
 from two or more separate papers if the signed contract contains 
 such reference to the other papers as to make them part of the former ; 
 but they must be mentioned in the contract; the connection between 
 unsigned papers and the contract cannot be made by parol evidence 
 that they were intended to be read together or by evidence of facts 
 and circumstances from which such intention may be inferred. It 
 may be stated generally that the contract must state expressly the 
 subject of sale, the terms, and the parties, with such certainty as 
 to furnish evidence of a complete agreement. 
 
 Contract by Letter. — The contract might be the result of cor- 
 respondence by letters. If I write to you that I will sell you my 
 land on certain terms and you send me another letter accepting the 
 
REAL ESTATE CONTRACTS. 19 
 
 terms proposed the contract is complete the moment that you put 
 your letter to me in the postoffice. So it would be if the letters 
 were written by our duly authorized agents. These letters must be 
 definite; if I had simply written to you asking if you are the owner 
 of certain real estate and what your price is, and you answer that 
 you are the owner and state the price at which you hold it, that 
 would not be an offer on your part to sell it to me; I could not 
 clinch it by writing back to you that I take the land at your price. 
 
 And if some one has made you an offer through his agent to buy 
 your land, and you write to the agent accepting the offer and do not 
 in your letter request him to have your acceptance delivered to his 
 principal, unless you can prove that the latter had knowledge of it, 
 the agent's letter and yours together would not make a contract. C 
 
 Date. — To begin with, you will date your contract. But if from 
 oversight the date of the agreement should be left out, that will not 
 invalidate it, it will take effect from the date of its actual delivery. 
 
 Escrow. — Sometimes, however, the buyer determines to buy, and 
 the contract is signed, at a time when the buyer has no money 
 about him, and thereupon for that or for'some other good reason the 
 contract is left "in escrow," as it is termed, that is, in the hands of 
 some trusted third party to be delivered on the payment into his 
 hands within a certain time of a certain amount of money, or on 
 the doing cf some certain act agreed upon. And as the contract 
 will not take effect until its delivery, it is better to have it dated. 
 
 Cancellation of Contract. — A contract can be extinguished, by 
 agreement of both parties, by simply tearing it up. 
 
 It does not need a written cancellation or agreement that it be 
 deemed cancelled, nor need the wife of a buyer join in or sign a 
 cancellation of a contract. * 
 
 t &. wife has no dower in a contract for the purchase of land. 
 
 Cancellation of Deed. — But this is not the case if a deed has been 
 executed and delivered, although it has never been recorded ; the 
 right of dower of the wife of the grantee at once attaches to the 
 land in that case, whether she knows anything about it or not; 
 neither can the title of the buyer, if a single man, be extinguished 
 by simnly rearing up the deed, even with the consent of the seller; 
 the title to land can only be conveyed or given up by a deed duly 
 signed and executed, and a grave mistake is often made in the 
 utmost good faith by attempting to end the matter by just destroy- 
 ing the deed. 'S-' 
 
 ) Parties. — Seldom doef any question arise as to the parties to such 
 a eontract. Of course an infant under twenty-one can not sell land 
 without a guardian appointed for that purpose by the court, and an 
 order of the court that such .and be sold for the infant's benefit; nor 
 can a seller rely upon a young man of twenty say, as a buyer, even 
 if he pay his money and take his deed, for he may repudiate his 
 bargain any time before he is twenty- two, and deed the land 'oaca:, 
 and get his money. Of course a corporation car sell ..and tiiat it 
 
30 KEAL ESTATE CONTRACT*. 
 
 owns; the general view is that a corporation can not give a full 
 covenant warrantee deed, but only a deed of bargain and sale, or a 
 quit-claim, on the ground that the covenants of warranty would be 
 ultra vires (or beyond the powers of the corporation): but my own 
 view is opposed to this, and if the corporation will give you such a 
 deed, you take it; the only risk you run is that some time in the 
 future, if you should have trouble with your title, say your quiet 
 enjoyment interfered with, or some deed of further assurance be 
 required, the corporation may have ceased to exist and you would 
 have no one to enforce your claim against; but you would be no 
 worse off then than if you had a simple deed of bargain and sale, 
 without any covenants. 
 
 Referees appointed by the court, or Sheriffs, in foreclosure or 
 partition suits, are very often the sellers of property, and the par- 
 ties of the first part in contracts. In such cases the terms of sale 
 are usually embodied in the decree or judgment that appoints the 
 referee; but if you are going to buy a piece of property at such a sale 
 you ought to go, or rather send your lawyer, beforehand and exam- 
 ine the decree, and the terms of sale that the referee intends to use, 
 for you will not be able to understand them when they are read in 
 the babel of the real estate exchange or auction room, at the sale. 
 
 Referee to see that taxes are paid. — The referee, or Sheriff, is 
 personally bound by law to see that all taxes and assessments, liens 
 on such property, are paid from the proceeds of the sale; if he 
 overlooks it you can maiie him pay them out of his own pocket. 
 
 Competent Parties. — There must be competent existing parties, 
 but they need not be expressly named, though where there is noth- 
 ing in the contract itself nor in the nature of the transaction which 
 shows who are the parties, such a contract would be void for uncer- 
 tainty ; though it is not necessary in every case that the party to 
 whom the deed is to be made should be distinctly ascertained at the 
 time of the contract ; for example a contract might be made to 
 convey land to a corporation not yet formed, which would not be 
 void for want of a grantee, if a good consideration were paid for 
 the contract, as the corporation might be formed and be in existence 
 before the date of the delivery of the deed ; and the heirs of a 
 vendor, even though they should be infants, and although not 
 named in the contract, may be made to fulfil the contract to the 
 extent of the estate that descends to them ; in one case, where the 
 seller died before delivery of the deed and left a lunatic child as his 
 heir at law the court directed the committee of that lunatic child to 
 execute the necessary conveyance. 
 
 Assignee of Contract. — The contract may be assigned. The 
 assignee can stand in no better position than the original vendee, 
 and takes it subject to all equitable rights, between his assignor and 
 the other party to the contract, bound by any understanding or 
 bargain outside of, or in addition to the contract ; but the assignee 
 ©f the buyer under such a contract is not personally bound to pay 
 
REAL ESTATE CONTRACTS. 21 
 
 the balance of the purchase money that may be due; unless he 
 makes an express agreement so to do, or unless such an agreement 
 on his part can be implied, the seller cannot sue him for such balance 
 of the purchase money. 
 
 Oral Authority to Agent. — An oral authority to an agent to 
 make a contract relative to the sale of lands would be good, and 
 not within the statute of frauds ; but the execution of a deed by an 
 agent would not be good unless authorized by a power of attorney 
 under seal (you could tell another man to sign your name right in 
 your presence and that would be a good signature by you). 
 
 Auctioneer. — A mere oral authority is all that an auctioneer 
 needs to sell lands, but not to make a deed of them. As soon as a 
 sale is perfected the auctioneer's agency ceases. A sale by him (at 
 auction, of course), is within the statute of frauds and requires a 
 memorandum of it in writing in order to bind both parties, but this 
 memorandum made and signed by the auctioneer is sufficient ; he 
 acts as the agent of the buyer as well as that of the seller ; but he 
 must make that memorandum and sign it at the time of the sale, 
 and before those proceedings are terminated, or the purchaser will 
 not be bound. 
 
 By-bidding. — The employment of puffers or by-bidders to run up 
 the property by sham bids is against public policy and avoids an 
 auction sale ; a buyer at such a sale may be delivered from his 
 purchase. But some courts have held that if persons were employed 
 to bid up to a certain sum in order to avoid a sacrifice of the prop- 
 erty, and then the price was afterwards raised by real bidders, the 
 sale will be sustained ; and out in Texas, merely for a person to bid 
 in for the owner does not necessarily vitiate an auction sale, so long 
 as he does not intend to raise the price beyond a fair value ; and it 
 has been decided there that whether the by-bidders were employed 
 in good faith to prevent a sacrifice, or simply to raise the price by a 
 pretended competition, is a question for the jury to pass upon in 
 each case. 
 
 Lunatic Party. — If you should unfortunately be drawn into 
 making a contract with a lunatic of course you cannot hold him to 
 it, but mere weakness of understanding on his part would not 
 invalidate it, so long as he has memory and judgment to a moder- 
 ate extent and no fraud is shown ; it is useless to get a man to 
 make a contract while he is intoxicated and thereby deprived of 
 his reason, because he can have it set aside. 
 
 Signature by Agent. — The proper way for an agent to 
 sign a contract on behalf of his principal is of course, - " the princi- 
 pal by the agent," "John Smith, by Wm, Jones, agent ;" still 
 should it be signed ""Wm. Jones for John Smith" that would bind 
 the principal, provided the contract on its face purported to be 
 made by the principal ; and where the agency is disclosed and the 
 contract is within the agent's authority, the latter will not be per^ 
 sonally bound, unless upon clear and explicit evidence of an inten- 
 
22 REAL ESTATE CONTRACTS. 
 
 fcion bo to bind him ; if an agent who had no authority should 
 lisk signing a contract on behalf of a principal, the former would 
 ie personally bound to carry out the contract ; this rule, how- 
 ever, does not extend to a purchase at auction where the auc- 
 tioneer, carrying out his duty as such, signs the memorandum 
 of the sale and purchase as the agent of the buyer, as well as 
 of the seller. 
 
 Signature by Trustee.— If a seller who is a trustee for others 
 should be described in a contract simply as " Trustee " or " Trustee, 
 etc.,'' without stating for whom, he would be personally liable ; so 
 take care to put in the whole of your title as trustee : this is a pre- 
 caution often neglected, generally from laziness, because it is too 
 much trouble to look up the exact words of description of your 
 position or legal name, the seller not being quite certain whether he 
 is "executor of the estate of James Henderson, deceased," or 
 " trustee under the last will and testament of James Henderson, 
 deceased," or what. 
 
 Signature by Trustee of a Corporation. — But it will not do to 
 make a contract on behalf of a corporation and then sign it with 
 your name as trustee of such corporation, you would then be per- 
 sonally liable ; it must be signed with the name of the corporation 
 by So and So, trustee, or director, or president ; if you sign it in 
 the preceding way, as we have stated before, you will be personally 
 liable. 
 
 Of course a person merely named in a written agreement is not 
 liable if he has not signed it, unless there be other evidence of his 
 promise. 
 
 Pretended Owner. — If you contract to purchase from a person 
 who turns out to be only a pretended owner, you can not be com- 
 pelled to take your title from some one else, a third Derson, the 
 real owner. 
 
 Assumed Agency — Bond and Mortgage. — If you sell to a pur- 
 chaser under a contract in which he agrees to assume and pay a 
 mortgage on the premises as part of the consideration, or if he 
 agrees to give a purchase money mortgage for the same, and then 
 you give him a deed in which he assumes the existing mortgage, or 
 upon the delivery of which he gives you his own purchase money 
 bond and mortgage, in pursuance of that contract, and you after- 
 wards find that he was acting for some one else, some rich man, 
 his undisclosed principal, it will be of no use for you to sue this 
 third party on the covenants in that contract, should the one to 
 whom you gave the deed afterwards fail to pay the mortgage. >. 
 ^ Husband to join. — A married woman in New York can contract 
 to sell her land, or can buy, without the consent of her husband ; 
 but I doubt very much whether estate by the curtesy has been 
 abolished ; I think that to accomplish that would require aoa express 
 statute, and that it has not been destroyed by implication any more 
 than an estate by the entirety has, by the Married Women's Acts ; 
 
REAL ESTATE CONTRACTS. 23 
 
 and I should require a husband to join in the deed of his wife's 
 land to release his right by the curtesy, just the same as I would 
 require the wife to join in a deed of her husband to release her 
 right of dcwer. 
 
 Curtesy. — Right by the curtesy is the common law right of a 
 husband to take possession of all his wife's land should she die 
 first, and receive and spend all the rents for his own benefit during 
 his lifetime, provided they ever had a child born to them alive (no 
 matter whether it continued to live or not). 
 
 Dower.— Right of dower is the right of the wife to one-third of 
 the rents of the husband's houses and lands or to have one-third of 
 his houses and lands set apart for her use, so long as she lives, after 
 he is dead, no matter whether they ever had any children or not. 
 It is curious how many well-informed people think that a widow's 
 dower is the absolute ownership of one-third of her husband's real 
 estate, with the right to sell it, or to do as she has a miad to with 
 it ; whereas her right is only a life estate, so long as she shall live. 
 
 However, it is but seldom that it is written in a contract that a 
 wife shall sign the deed to release her right of dower, or a husband 
 to release his right by the curtesy; because the contract usually pro- 
 vides that a deed shall be given free from all incumbrances, and the 
 wife must join in order to comply with that. In view of the differ- 
 ences of opinion about the state of the law as to curtesy, I should 
 say, require the careful insertion in the contract, where a married 
 woman is the seller, of an agreement on her part that her husband 
 shall join in the deed to bar his right by the curtesy, and if she would 
 not agree to that, especially if because sha could not control him, 
 it would then be a grave cause for the buyer refusing to make the 
 contract. 
 
 Consideration. — The question as to what is a good consideration 
 for a contract is too large to be gone into here. An agreement for 
 the sale of land requires a good and valid consideration, the same 
 as any other contract ; for example, if you agree to give the refusal 
 of your house and lot to another party, but the latter does not 
 agree to take the house and lot, and there is no promise on his part, 
 nor no money or other valuable thing given, the whole agreement 
 would be void for want of consideration ; of course you could not 
 hold him, but also he could not hold you. Marriage is a good con- 
 sideration ; so that if you promise a lady that you will give her 
 your Murray Hill residence if she will marry you, and she accepts 
 and carries out her part of the bargain, you can be made to keep 
 your part of it. 
 
 But a contract to convey real estate in consideration of love and 
 affection, as to a son or other relative, cannot be enforced, although 
 if a deed be actually delivered for such a reason that would be a 
 valid consideration to uphold the conveyance, unless the latter has 
 been made to defraud creditors. 
 
24 HEAL ESTATE CONTRACTS. 
 
 As to the consideration for the agreement to sell and purchase a 
 piece of property, contracts usually are in one of two forms : 
 
 In one, the consideration (for the contract, mind) is directly 
 expressed and paid at the time of delivery of the contract, thus 
 " the said party of the first part " (the seller), " for and in consid- 
 eration of the sum of (say) five hundred dollars to him in hand 
 paid, has contracted and agreed to sell " to the buyer a certain 
 piece of property for (say) ten thousand dollars. Here the consid- 
 eration for the contract is five hundred dollars, and the consider- 
 ation to be paid for the property ten thousand dollars. It is usual 
 under this form of contract, however, when it comes to specifying 
 how the consideration for the land (the ten thousand dollars) shall 
 be paid, to provide " payable as follows : The sum of five hundred 
 dollars paid as aforesaid at the time of the delivery of this agree- 
 ment to be allowed thereon ; the sum of (say) forty-five hundred 
 dollars upon the delivery of the deed, and the balance (say) five 
 thousand dollars in a purchase money mortgage, etc. ;" so that the 
 said five hundred dollars expressed as the consideration of the 
 contract ultimately becomes a part of the consideration for th 
 property. This form is inaccurate and illogical. 
 ' The other way is to regard the mutual covenants, that of the 
 seller to give deed, and of the buyer to pay, as the mutual consid- 
 erations which support the contract. This is correct both in fact 
 and in principle. This form is worded thus : " The party of the 
 first part, in consideration of the sum of ten thousand dollars, to 
 be fully paid as hereinafter mentioned, hereby agrees to sell unto the 
 party of the second part" such a piece of property; "and the 
 said party of the second part hereby agrees to purchase said 
 premises at the said consideration of ten thousand dollars, and to 
 pay the same as follows : five thousand dollars on the delivery of 
 the deed, and five thousand dollars in a purchase money bond and 
 mortgage, etc." 
 
 In some states, for example New York and New Hampshire, the 
 courts require the consideration to be expressed in writing as part 
 of the agreement, while in others, for instance Massachusetts and 
 Missouri, it is enough if the agreement be in writing though the 
 consideration be not expressed. At law, as we have said before, a 
 parol contract for the sale of land is void notwithstanding possession 
 and improvements by the purchaser; but it has long been the settled 
 doctrine in equity that such a contract will, if executed by the party 
 seeking relief, as for example if he has made full payment, be 
 specifically enforced; only partial payment of the purchase money 
 is not of itself usually regarded as a sufficient part performance to 
 take the contract out of the statute. 
 
 Description — We must now consider the description of the prem- 
 ises in your contract. 
 
 This cannot be too clear and accurate. This is a part very apt 
 to be slighted, usually because the printed blanks do not leave 
 
REAL ESTATE CONTRACTS, 2S 
 
 room enough to write all that ought to be written; if it be only 
 a city lot of four sides that is to be conveyed, it needs but little 
 space ; but if a farm, with many courses, and various rights 
 of way or easements, or a house or factory, with movable 
 fistures to be enumerated, remember that the deed must 
 follow the contract, and that if you begin to enumerate 
 and describe everything, whatever you omit will not go with 
 the rest as a matter of course; therefore, take more care with 
 the description. It is not essential that the description of a 
 property should have such particular identification as to render it 
 entirely needless to call in outside evidence to determine what 
 property was contracted to be sold, but the terms must be sufficient 
 to comprehend it, so that with the assistance of outside evidence, 
 the description without being contradicted or added to can be con- 
 nected with and applied to the very property intended to the 
 exclusion of all other property. 
 
 What "Land" Means. — The word land is broad in its meaning 
 and includes growing grass and standing trees. A contract for the 
 sale of standing timber is therefore a contract for the sale of an 
 interest in land, and must be written ; so is one for the sale of 
 growing crops ; but if the standing trees are sold with the intention 
 of their being immediately cut down, this contract need not be in 
 writing ; and the same has been held with regard to a crop of 
 peaches, the buyer to gather and remove the peaches as they ripen ; 
 so may hops upon the vine, and hop roots be sold without a written 
 contract, although at the time the bargain was made the roots were 
 in the ground. But in England the sale of a right to shoot ove. 
 land, and to take away part of the game killed, comes within the 
 statute of frauds, and must be in writing ; and so must a sale of 
 coal and the right to take coal ; and a permission to flow land wiih 
 water as for a mill pond ; and the same has been held in respect to 
 mining claims ; but the sale of shares in a mining company is not a 
 sale of land or of an interest in land. A contract for the sale of 
 improvements on land, such as houses, has been held In some 
 states to be a sale of personal property, and not within the statute. 
 Pointing 1 out Boundaries. — Where the seller undertakes to 
 point out to the buyer the boundaries of a piece of land he does so 
 at his peril. 
 
 Allowance for Deficiency in Quantity. — But if the buyer can 
 obtain substantially what he bargained for, and the value of any 
 deficiency can be reasonably ascertained, he can be forced to take 
 title ; the general rule is that he shall have what the seller could 
 give with a deduction for the quantity that the land falls short. 
 And if the title to part of the premises fails, the buyer may claim 
 performance as to the remainder with a deduction for the defi- 
 ciency ; but if the term " more or less " is used and there should be 
 but a small variation in the dimensions or quantity, no change in 
 the consideration can be claimed by either party ; while if the vari- 
 
26 REAL ESTATE CONTRACTS. 
 
 ation is considerable, an equitable allowance should be made to the 
 one entitled to it ; and if you pay part of the purchase money and 
 give a mortgage for the balance, you will not be relieved against a 
 mortgage on the mere ground of a defect of title, where there was 
 no fraud in the sale, and you have not been turned out ; but you 
 can get your remedy at law on the covenants in your deed. 
 
 The real test as to the materiality of a deficiency in the quantity 
 of land contracted to be conveyed is, would the buyer have entered 
 into the contract if the error or falsity had been known. The buyer 
 is not bound to know that the description of the premises in the 
 contract does not include all the land that the seller represented it 
 to contain, and any deceptive assertions and false representations 
 made by the seller upon that point would justify an inference of 
 fraud and enable the buyer to have the contract set aside. 
 
 Description. — A broker may give you a diagram which specifies 
 supposed dimensions of the property, besides designating it by 
 street and number, but if he had no authority from the seller to 
 give the dimensions and you should afterwards take a contract 
 which described the premises only by the street and number, with- 
 out any dimensions (as contracts often do) you will be bound to 
 take the deed of the property as it stands, in accordance with 
 the contract, and cannot claim the dimensions given you by the 
 broker. 
 
 A question that quite often arises is whether a purchaser will be 
 bound to complete his contract if he finds somewhere in the chain 
 of title an error like this, " beginning at a certain point and run- 
 ning southeasterly " when it ought to say " southwesterly," which 
 of course would locate the property in an entirely different place 
 from the one intended by the buyer ; but this is always to be 
 decided by reading the entire description as a whole, and if the 
 intention to convey the premises in question is apparent the pur- 
 chaser will not be relieved. 
 
 He would be, however, where he had taken a contract for a store 
 and premises which had been offered to him by the seller as they 
 appeared with water pipes and gas pipes and gas fixtures in them, 
 and then the pipes and fixtures should be removed afterwards, 
 although they were taken away by a tenant who had the right to 
 do so, and the seller when he made his contract did not know that 
 his tenant had any such right. 
 
 Buyer must Agree to Buy.— Another odd thing that of ten hap- 
 pens when a contract is drawn without the aid of an experienced 
 lawyer or real estate broker is that while it is carefully written that 
 the seller agrees to sell, and so he is bound, it is often forgotten, or 
 taken as a matter of course, and omitted to state expressly and 
 separately that the buyer agrees to buy and to pay for, and to pay 
 on the special terms agreed on, so that frequently contracts are 
 seen where the buyer is not bound. This is a one-sided sort of 
 contract, not always to be safely indulged in by the seller. 
 
REAL ESTATE CONTRACTS. 27 
 
 An apt commentary upon these views is the opinion of Judge 
 O'Gorman, of the New York Superior Court, in the suit of Isaac E. 
 Wright against Herman Mischo, decided March 13, 1885, since the 
 manuscript of the foregoing was written. This was a motion on 
 the part of plaintiff for a new trial on the minutes, the complaint 
 having been dismissed at the close of the case on the trial, all the 
 evidence on both sides having been received. 
 
 O'Gorman, J.— The action is brought for the recovery of $4,000, as dama- 
 ges resulting from the breach by the defendant of a contract alleged to have 
 been made by him in March, 1883, to purchase from the plaintiff certain real 
 property in this city. The burden of proving this contract by a preponder- 
 ance of evidence was on the plaintiff. 
 
 The plaintiff testified that, after some preliminary negotiation between 
 him and the defendant, an interview took place on or about March 31, 1883, 
 at the store of defendant, who dealt in furs. 
 
 Defendant said he would give plaintiff for the property $34,000, and $500 
 in furs, to which the plaintiff answered " The proporty is yours." Defendant 
 said, " I want to know that for sure, because if I don't get this propery I 
 want other property I am looking at." Plaintiff said, " It is yours. I 
 will draw you a contract, a receipt, and you pay me some money." He 
 (defendant) says, " Very well, I have not much money in the safe." I said, 
 "All right, $50 will do. rf 
 
 " Defendant then instructed his bookkeeper to give me (plaintiff) fifty 
 dollars and to draw a receipt. The bookkeeper commenced drawing the 
 receipt and turned to me (plaintiff) and said, f Mr. "Wright, you know more 
 about this property than ldo; you know the location of it; you better draw 
 the receipt yourself ;' then I took the pen and drew a receipt." 
 
 This document was thereupon signed by the plaintiff and left with the de- 
 fendant, and plaintiff received the fifty dollars in bills. It was not produced 
 at the trial by the defendant, who stated that it was lost, and plaintiff testi- 
 fied as to its contents, using, to refresh bis memory, a copy which he made 
 of the document a few days after it had been signed by nim. 
 
 The following is a copy: 
 
 " New York, Mar 21, 1883. Received from Herman Mischo the sum of $50 on 
 account of purchase of property known as 411 and 413 East One Hundred and 
 Fifteenth street for the sum of $24,500, as follows: Subject to $16,000 now a lien on 
 said property, $8,000 in cash and $500 in furs. The property to be free and clear of 
 all encumberances, except as above mentioned. Deed to J>e given on the 2d of 
 April, 1883." 
 
 This paper, as plaintiff testified, was read over to the defendant. This, 
 however, defendant denies. Plaintiff continuing his testimony further says: 
 
 " I was to have a contract drawn next morning, and Mr. Mischo was to 
 •call at my office and pay $950 additional. I read the contract over to him. 
 He says: 'Mr. Wright, they are apparently all correct; I do not see anything 
 there but what I agree to, but I have always done business in such a way 
 that I never sign any papers without my attorney seeing them.' I said to 
 him: 'I want the money to-day.' He said: 'You sign this contract and leave 
 it here with Mr. Knapp (plaintiff's clerk), and before three o'clock, if my 
 attorney does not come from Brooklyn, I will show it to another attorney 
 and be here in time for banking hours with the check for $950." The con- 
 tract was thereupon signed by plaintiff and left with the clerk 
 
 Defendant did not return that day, and wrote a letter to plaintiff declin- 
 ing to proceed further in the transaction. This letter was answered on the 
 gart of the plaintiff, stating that defendant had bought the property and 
 eld plaintiff's receipt which debarred plaintiff from selling it to anyone else, 
 whereupon defendant again wrote to plaintiff inclosing plaintiffs signature 
 which had been cut from the receipt. Plaintiff thereupon took steps to sell 
 the property by private sale, and, failing in that, sold it at auction on May 
 12, 1883, for $30,500, $4,000 less than the price at which he claims that it was 
 purchased from him by defendant. Plaintiff testified that the market value 
 of the property in April, 1883, was about $30,500 or $31,000. These are, I 
 think, the material facts as testified to by the plaintiff.. ; 
 
 ;The question to be considered is whether or no the transaction, as thus 
 described by him, constituted a contract by the defendant to purchase the 
 property and take a deed for it and pay for it, according to the terms as 
 set forth in the receipt drawn up by the plaintiff and given by him to 
 
28 EEAL ESTATE CONTRACTS. 
 
 defendant. Did the delivery by plaintiff to the defendant of the receipt, 
 audits acceptance by the defendant, coupled with the delivery by the 
 defendant to the plaintiff of fifty dollars, as stated by the plaintiff, con- 
 sidered in the light of all the attendant circumstances, constitute, or supply 
 sufficient evidence of a contract on the part of defendant to purchase the 
 plaintiff's property, under the provision of the Statute of Frauds as now in 
 force in this State ? The section of the act bearing on this subject is as 
 follows: 
 
 " Every contract for the leasing for a larger period than one year, or for 
 the sale of any lands, shall be void, unless the contract or some note or 
 memorandum thereof expressing the consideration be in writing and be 
 subscribed by the party by whom the lease or sale is to be made." 
 
 This receipt sets forth, I think, with sufficient accuracy the description 
 of the property, the price and the terms of sale, to constitute "a note or 
 memorandum of sale " by the plaintiff, under that section. But that is not 
 the question here. The question is, did the whole transaction constitute a. 
 contract on the part of the defendant to buy ? The section above set 
 forth does not require that the contract to purchase land should be in writ- 
 ing. But, nevertheless, a contract on the part of the purchaser is necessary 
 to establish any obligation against him, and the burden is on the plaintiff to 
 prove that such a contract was made. The plaintiff's claim here is that the 
 acceptance by the defendant of the receipt drawn up by the plaintiff, and 
 payment by the defendant of fifty dollars, constitute a contract on his 
 part, or in evidence of a contract. 
 
 From a dictum in the opinion of the Court of Appeals, in Cagger vs. 
 Lansing (43 N. Y., 553), it may be inferred that the Court held it to be 
 law that the delivery by the vendor to the purchaser of a written con- 
 tract for sale of land subscribed by the vendor alone, and its acceptance 
 by the purchaser, would constitute a contract on the part of the latter 
 to purchase, if it were accepted by him as a valid subsisting contract. 
 But if not so accepted that it would not be binding on him. 
 
 Did defendant here accept this receipt as " a valid subsisting contract " 
 by the vendor to sell Mm this property ? The burden of proving that 
 he did so accept it was on the plaintiff. The question can be answered 
 only by considering the circumstances of the whole transaction in defend- 
 ant's store, and also what occurred at the interview in plaintiff's office 
 next day. 
 
 The payment of money on account of a purchase of land is held not to 
 be of itself evidence of a contract topurchase the land (Cagger vs. Lansing, 
 supra. ; Baldwin vs. Palmer 10 N. Y., 232). 
 
 In fiaubitchek vs. Blank (80 N. Y., 482), an action was brought for pay- 
 ment of a check valid on its face. The defendant pleaded want of consid- 
 eration, and the burden of proof was on him. It appeared that the check 
 was given as part payment on a verbal agreement for the sale of land; 
 that a receipt signed by the vendor was given to the purchaser, 
 which receipt contained enough to constitute a note or memorandum 
 under the Statute of Frauds. It was held that the defendant failed to show 
 that there was not good consideration for the check; that the receipt 
 amounted to a contract of sale sufficient to satisfy the Statute of Frauds, 
 and was binding on the vendor; that the transaction bound the purchaser 
 also, on the ground that the receipt and the check formed the one contract, 
 the mutual relations of these several writings appearing on their face. 
 
 This case has been referred to in the argument, but is not in point with 
 the case at bar, for the burden of proof there was on the defendant to prove 
 that no valid contract existed on the part of the vendor to sell the property, 
 whereas, in the case at bar, the burden is on the plaintiff to prove that there 
 was a valid contract on the part of the defendant to buy; and it is worthy 
 of note that only three members of the Court of Appeals concurred in the 
 decision in that case. 
 
 The question then in the case at bar is whether there is evidence enough 
 to go to the jury that defendant understood the receipt to be, or that it was 
 intended by plaintiff to be, a valid and subsisting contract for the sale of 
 the land, and that defendant accepted it as such. There is no evidence that 
 he did so. » 
 
 At the interview in his store, defendant directed his bookkeeper to draw 
 a receipt. The bookkeeper requested plaintiff to draw the receipt himseB. 
 The document was in form a receipt, and in the interview and conversation 
 between plaintiff and defendant it was called a receipt. The agreement 
 then made between plaintiff and defendant that they were to execute a con- 
 
REAL ESTATE CONTRACTS. 29 
 
 tract in counterpart the morning after that interview does not favor the 
 conclusion that defendant understood that a valid and subsisting contract 
 binding plaintiff had been made, or was intended to be made, by plaintiff, 
 and that the defendant was bound as a purchaser by reason of the delivery 
 to and acceptance by him of a contract. 
 
 If defendant believed, and had reason to believe, that the paper then 
 signed by plaintiff and delivered to him was a receipt and nothing more, 
 there was no valid or binding contract between them. A strong prepon- 
 derance of evidence is that he did so believe. 
 
 I have considered this question so far by the light only of the evidence in 
 its aspect most favorable to the plaintiff, and I find therein no proof of any 
 valid contract on the part of the defendant to purchase this property. 
 
 At the trial of the action all evidence on both sides was received that was 
 believed to be material and relevant to a full understanding of the whole 
 transaction; and, taking the evidence in the case altogether, I think that 
 there is not only a failure of necessary proof by the plaintiff but a prepon- 
 derance of evidence in favor of the defendant. 
 
 His conduct may have been unbusiness-like, vacillating, and, on various 
 grounds, open to serious objection, but I see no evidence in the case that 
 would have warranted a jury in finding that he had violated a contract by 
 reason of which plaintiff was entitled to claim damages against him. 
 
 The motion for a new trial is denied, but without costs." 
 
 Possession of Premises is Notice. — If the contract is recorded, 
 and the buyer goes into possession of the premises, then any subse- 
 quent purchaser or mortgagee would be deemed to have notice of 
 the contract. And bear in mind that possession of property is 
 always notice of a claim of ownership ; so that before you pay your 
 money for a deed (or hand it over for a bond and mortgage), care- 
 fully inquire of all persons, tenants or others, in possession of the 
 property, who owns it, and how they hold possession. 
 
 Possession of Wild Land. — Of course it is difficult to say what 
 is actual possession of wild lands ; in one case a man was sued for 
 having cut bark on wild land and he showed a receipt for money 
 for which the owner had contracted to give a deed for the land, 
 and the court held that this receipt was a contract for the sale of 
 the land and that by cutting bark or timber from it the person who 
 paid the money, having taken such possession of it as was possible, 
 had become the equitable owner and could not be made to pay the 
 value of the bark cut, although he had not paid the balance of the 
 price, and the former owner had continued to pay the taxes on it. 
 i Possession. — The contract is not of itself permission to the buyer 
 to go into possession, unless it expressly says so, and the buyer who 
 enters and is turned out by force by the owner could not successfully 
 sue the latter for trespass ; if, however, the land be vacant and the 
 purchaser has paid the entire price and has done all that he agreed 
 to, and all that remains for the seller to do is to give the deed, there 
 is an implied agreement or license that the buyer may at once take 
 possession and have the use of the land. 
 
 - If the buyer, however, before he examines the title takes posses- 
 sion under the contract and makes improvements and it afterwards 
 turns out that the seller is unable to convey, the former cannot 
 recover the cost of the improvements if the latter contracted in good 
 faith and has not refused to perform. 
 
 Taxes. — Different views are often entertained by buyer and 
 
30 REAL ESTATE CONTRACTS. 
 
 seller ai to which shall pay taxes ; for example, a contract might be 
 signed early in September, the deed to be given in October, and in the 
 meantime the tax levy be confirmed, say on September 23d ; then 
 the buyer insists that the seller shall pay them, and vice versa; in 
 this case the seller must pay. On the other hand, the contract 
 might have been made August 23d, to be closed thirty days from 
 date (September 22d). Here the buyer would receive all the pur- 
 chase money, and the very next day the buyer's property would be 
 liable for a whole year's taxes. These facts are usually, but not 
 always borne in mind when the contract is made. To produce any 
 different results any desired different arrangement must be dis- 
 tinctly specified in the contract. 
 
 / Party "Walls. — Of oourse it is of importanee to know if a house 
 has a party wall on either side. While each adjoining owner has 
 an easement in the land of the other upon which the wall stands, 
 such a wall is not an "encumbrance" under the covenant in a 
 contract or deed against encumbrances ; but a sound party wall 
 cannot be taken down except by mutual consent. Repairs to it 
 must be paid for by each owner ratably, but one party has not the 
 right to make the other pay towards rebuilding it should it be 
 totally destroyed as by fire. The right to such a wall continues so 
 long as it is sufficient for the purpose and the adjoining buildings 
 remain in condition to need it. Division fences must be main- 
 tained, in New York at least, by the adjoining owners under State 
 statutes and city and village ordinances. 
 
 Title. — When you agree to sell land you impliedly agree to give 
 a good and unencumbered title. Every purchaser has a general 
 right to require such a title without its being written in the agree- 
 ment ; and certainly where the seller contracts " to give a deed 
 free of all encumbrances," or "a good warrantee deed," or "a 
 good and sufficient deed," unless the contract shows on its face 
 that he has merely agreed to sell the title which he has, whether 
 defective or not ; but this is only true of a contract, and as soon as 
 that is consummated by the delivery of the deed the buyer must 
 look out for himself and see that the deed contains express cove- 
 nants. If the contract is merely to convey the land, that means a 
 conveyance in fee. You cannot be compelled to pay your money 
 and take a doubtful title or an encumbered property. It would be 
 a doubtful title if it were to expose you to a lawsuit, but you cannot 
 reject it simply on a possibility of its proving to be imperfect. 
 Where a husband has agreed to sell, the wife must sign the deed, 
 although she may not have signed the contract, in order to give a 
 good title. 
 
 Deed. — You must take care what kind of a deed you agree in 
 your contract to give, or agree to take. If it says that the seller is 
 simply to give a deed, that is satisfied by his giving one without 
 warrantee or covenants. If the agreement is simply xo give a deed 
 in fee, that will not be satisfied by giving a title subject to 
 
REAL ESTATE CONTRACTS. 3L 
 
 encumbrance. If the words " good and sufficient deed " are used, 
 the seller is bound to convey a good title ; he must give a warranty 
 against encumbrances, and must convey the legal estate in fee, 
 free from all other claims or liens whatsoever ; the seller's wife 
 must join in such a deed. If the contract says the "title to be 
 satisfactory," that implies only that the title shall be good and 
 marketable. The best way to put it is " a full covenant warrantee 
 deed." 
 
 Quit Claim Deed. — A quit claim deed does not give a very good 
 title ; it simply conveys whatever right or title or interest the 
 grantor may have in the property described, at the time that he 
 signs and delivers the deed ; it would, however, take precedence of 
 a prior unrecorded warrantee deed from the same grantor, if the 
 purchaser under the quit claim has no notice of the prior deed and 
 if there is nothing stated in the quit claim which suggests an 
 earlier conveyance ; but a quit claim deed will not operate, as a 
 warrantee deed does, to carry subsequently acquired title of the 
 grantor ; if you take such a deed you can hardly be regarded as a 
 bona fide purchaser without notioe of outstanding titles and 
 equities ; you obtain just such a title as the seller had, and the land 
 in your hands would remain subject to all the equities attaching to 
 it in the hands of the seller, though they may be unknown to you ; 
 even in the absence of fraud by accepting such a deed you take the 
 risk of the title ; the seller virtually declares that he will not 
 warrant the title even as against himself ; a buyer might much 
 better take a 
 
 Deed cf Bargain and Sale, wherein, although the seller makes 
 no express covenants, he really grants or conveys the property for 
 a valuable consideration, and thus impliedly claims to be the owner 
 of it. 
 
 Executor's Deed. — Of course if the contract is made by execu- 
 tors under the will of a deceased owner they can only agree to give 
 an executor's deed in the usual form. 
 
 A Full Covenant Warrantee Deed contains six covenants: 
 First, the covenant of seisin; second, of right to convey; third, 
 against encumbrances; fourth, for quiet enjoyment; fifth, further 
 assurance; sixth, warranty. And these covenants are all worth 
 having. 
 
 Covenant of Seisin; Covenant of Bight to Convey. — The 
 first two are practically the same thing, that the seller has posses- 
 sion of the premises and the right to sell them; you know that it is 
 unlawful to convey land when you are not in actual possession or 
 control of it — that is, where some one is holding it in adverse pos- 
 session; so if the grantor is not then possessed of the legal title and 
 is not in possession of the premises when he delivers the deed, that 
 covenant is broken as soon as it is made, and the grantee (but no 
 one else) may at once bring an action for damages for the breach 
 of it. 
 
32 REAL ESTATE CONTRACTS. 
 
 The Covenant Against Encumbrances provides security 
 against the assertion of every right to or interest in the land which 
 may exist in third persons, inconsistent with the passing of the fee 
 by the conveyance; such as a mortgage, taxes, an inchoate right 
 of dower, judgments, conditions and covenants restricting the use 
 of the premises; also existing easements upon the land, such as 
 private rights of way, rights of artificial water courses, or drains, 
 or sewers, or a right to cut trees, or to mine, or to maintain a dam. 
 A seller, when he makes his contract, must therefore be very care- 
 ful to satisfy each and every encumbrance or lien of such a char- 
 acter that it would be allowed to remain on the property when he 
 gives his deed, for he cannot put it in his deed if it is not written 
 in the contract, and if it should be left out of the deed ary one of 
 these circumstances will constitute a breach of this covenant even 
 though the grantee is aware of its existence when he takes the 
 deed and pays the consideration. 
 
 $ Inchoate Bight of Dower. — It may be remarked here that an 
 inchoate right of dower is a right that the wife has while her hus- 
 band is alive; she really has not got any dower until she is a widow, 
 and that is why the blank space usually found iu the printed forms 
 of deeds is written in with the words dower and right of dower. 
 
 The Covenant for Quiet Enjoyment is an assurance against the 
 consequences of a defective title and any disturbance thereupon; 
 however, nothing but actual or constructive eviction from the land 
 by the assertion of a paramount title will constitute a breach of this 
 covenant; and indeed it is almost entirely covered by the covenant 
 of warranty. 
 
 The Covenant of Further Assurance is that the seller and hi- 
 heirs will hereafter sign, obtain, and give any further deeds that 
 the buyer or the latter's lawyer may demand, but at the expense 
 of the buyer ; and of course such a covenant is worth having. 
 
 Covenant of 'Warranty. — That the latter may be broken there 
 must be an actual or constructive eviction from the whole or from 
 a part of the premises. But the grantee need not resist the claim 
 of the contestant until he has been evicted by process of law ; he 
 may voluntarily yield the possession upon the demand of the 
 owner of the paramount title ; but he does this at his peril, and if 
 he should bring a suit upon the covenant the burden of proof 
 would then be on him to show that the title to which he yielded 
 was really paramount ; a judgment against the buyer in an eject- 
 ment suit would be a breach of this covenant, or one in favor of a 
 right to an easement, or to a widow's dower, or in favor of a mort- 
 gage, when either is enforced. 
 
 Time of Performance —At law you are held very strictly to the 
 time fixed by the contract for the actual delivery of the deed; this 
 is a case where time is said to be of the essence of the contract — 
 that is, a vital provision of it. If the contract should happen to 
 leave that out a reasonable time must be allowed. But the time 
 
KEAL ESTATE CONTRACTS. 33 
 
 named may easily become immaterial by the conduct of the parties, 
 especially if they have once acquiesced in extending it. As a gen- 
 eral rule, if a party has not been guilty of great neglect, if his delay 
 can be easily explained consistently with good faith, the court of 
 equity will afford relief. Each case, however, will depend upon its 
 own circumstances, and the neglect or default of one party will not 
 be excused where it would seriously injure the other party. If by 
 accident you name in your contract a legal holiday or a Sunday as 
 the day for closing the contract, the law says it shall be closed the 
 next following day. 
 
 Tender of Deed. — The seller cannot sue for the price or for 
 damages for the non-performance of the contract, without having 
 tendered the deed, unless the buyer has waived the tender, or has 
 otherwise made it useless to offer it. And in New York it is not 
 necessary for a vendor to make out and tender a deed on the day the 
 purchase is to be completed; he is not bound to prepare it until the 
 vendee is ready to demand it, and even then he is allowed a reason- 
 able time to draw and execute it. If several lots were sold the seller 
 is bound, if required, to give separate deeds. 
 
 When Title Passes. — The title to the land passes to the pur- 
 chaser when he accepts the deed, and, as we said before, the agree- 
 ment then becomes functus officio, and the rights of the parties are 
 thereafter to be determined by the deed and not by the contract; 
 still, the contract might contain collateral covenants or stipulations, 
 for instance, to do a series of acts at successive periods, for which 
 purposes the contract would still remain alive. If either party with 
 good cause desires to rescind the contract he must act promptly; 
 and the vendee especially should offer to rescind it as soon as he 
 discovers the defect that entitles him to do so. 
 
 i The Deed, Not the Contract, Gives Title. — A contract for the 
 sale and purchase of land is in its nature executory and does not give 
 the buyer any present title; it is the deed which passes the title, 
 and the acceptance of the deed is an execution of the contract 
 which thereby becomes void and of no further effect. Equity some- 
 times treats of a contract for the sale of land as if it had been 
 executed, the purchaser being regarded as the owner of the land, 
 and the seller as owner of the price for it and as holding the land 
 in trust for the purchaser. 
 
 Subscribing "Witness.— It is not necessary that the contract 
 should be also signed by a subscribing witness; in fact, I would 
 rather not be bothered with a subscribing witness to any instrument 
 if it be " acknowledged " properly before a notary or commissioner 
 of deeds, or justice of the peace, then it needs no other evidence 
 to prove it. Get your contract so acknowledged by all who 
 sign it. 
 
 SeaL— It is not necessary that the contract should be under seal. 
 There are these advantages about going through the legal form of 
 putting a seal on any instrument; the seal is of itself proof of a 
 
34 REAL ESTATE CONTRACTS. 
 
 valuable consideration, and a seal instrument is not outlawed under 
 twenty years. 
 
 That excellent lawyers' journal, the New York Daily Register, 
 lately published the following pithy remarks upon the use of a seal: 
 
 " Now the law reformers are attacking that sacred symbol, the seal. Is 
 there to be no end to their audacity ? Next they will ridicule signatures. 
 What is more ludicrous than the legal effect of a mark or an initial ? 
 
 " There is so much need of improvement in the law that it may seem 
 venturesome to deny that any particular change would be any improve- 
 ment; but we nevertheless must venture the assertion that in those jurisdic- 
 tions where the seal is retained and used it has an important and valuable 
 function, which doubtless we could do without, but which nevertheless is 
 convenient and useful, and which no sarcasm can supersede. In itself there 
 is nothing more insignificant or even undignified than a scrawl annexed to 
 a signature, but, in the usage as it is commonly understood and in the rule 
 of law which it does signify, it is important. 
 
 ) " Thus a man makes a compromise and gets full acquittance. He knows 
 that if he only gets an ordinary receipt in full the creditor can attempt at 
 least to explain it away, if not indeed wholly to disregard it ; but if he gets 
 a sealed release, he knows that he has a protection which the creditor will 
 not undertake to question. The simple rule that the paper wafered on, or 
 n some jurisdictions a scrawl following the signature, will make this differ- 
 ence in the effect of the instrument is a great convenience. 
 
 '• In the business transactions of men there are many cases where receipts 
 in full are given which the parties do not mean or desire to be conclusive 
 to the extent of a sealed release. If the symbol of the seal were abolished, 
 men would still continue to endeavor to make these two classes of instru- 
 ments, and the lawyers would have to devise some form of words which 
 would supply the place of a seal, as, for instance, the clause reciting the 
 occasion in conveyances of an absolute and conclusive release, and then it 
 would take some years of doubt and litigation to determine whether such a 
 clause would have the effect a seal has at common law, and what was the 
 proper form in which it should be expressed. 
 
 "Again, a promise to pay money, if unsealed, is barred by the statute of 
 limitations at six years; if under seal, it is not barred until twenty years. 
 This is a convenient and desired distinction. In mercantile affairs men pre- 
 fer the shorter limitation; in permanent investments they prefer the longer 
 limitation. ' 
 
 " This is the reason why in one case they use a promissory note and in the 
 other a bond. There is no law requiring men to use seals for such purposes, 
 but the substantial advantage of the distinction is the reason why their use 
 continues. If seals were abolished, conveyancers would at once be requested 
 by their clients to devise some form of words that would serve to take the 
 place of the seal, and with the same uncertainty as in the case of a release. 
 
 " The law does require a seal to transfer real property. This requirement 
 may be unnecessary, but we have little doubt that if seals were abolished 
 purchasers of land and mortgages would still desire conveyances to be 
 sealed, and that the signers of instruments would still continue, as a general 
 thing, to consider a little more carefully an instrument which bears a seal 
 before signing it than a simple contract. Nor is it just to say that a sealed 
 deed is worthless; for if any consideration has been paid it is good as an 
 executory contract to the extent of the act of the purchaser. 
 
KEAL ESTATE CONTRACTS. 36 
 
 " In fact, the distinction between sealed and unsealed instruments serves 
 really in the ordinary affairs of business men somewhat to the same useful 
 purpose that the distinction between oral and written contracts serves in 
 conveyancing. A man who contemplates parting with the title of real 
 property may negotiate as much as he please with the offer, and accept offers 
 or come as near an offer or as near an acceptance as negotiation may bring 
 him without any fear (as long as he receives no money, or no consideration 
 and signs no paper) that he will be bound for anything except perhaps 
 brokers' fees, until the terms are so far settled and agreed npon as to be 
 reduced to writing and signed. 
 
 "In ttvelf , the scrawl of the name at the bottom of a paper is as ridiculous 
 a thing as a scrawl or a wafer, but its legal significance is of great value 
 and importance. In an abstract, moral or theoretic sense, there is much 
 plausibility in saying that a man should be as much bound to convey by a 
 verbal offer accepted as by a written one. But to abolish the distinction 
 between verbal and written contracts to convey land would turn dealing 
 in real estate into a perilous sort of business. The nature of the business 
 itself as transacted by men as they go, negotiating under incomplete knowl- 
 edge and fickle impulses and varying necessities, requires that there should 
 be some separate formality to distinguish between coming to an understand- 
 ing and an actual binding contract, and that men should be left free to 
 come to a definite understanding and agree with each other, while yet the 
 insignificant scrawl of the signature which is necessary to turn that under- 
 standing into a binding contract should remain to be done as a separate act. 
 
 " The ludicrousness of the symbol is no argument against the deep-rooted 
 distinction in th«> usages and customs of business, and to abolish the seal 
 would not obliterate the distinction." 
 
 Signatures. — As we have said before, it is not absolutely neces- 
 sary that the contract should be signed by both parties; but in ordei 
 that either party can be successfully sued, for example, before the 
 buyer could be forced to pay the price agreed on, he must have sub- 
 scribed the contract, unless indeed he has entered into possession of 
 the premises, and thus there is a partial performance sufficient to 
 take it out of the rule of the statute which requires the contract to 
 be in writing; but as there is a right way to do everything, and you 
 never know what may happen, always have the buyer sign as well 
 as the seller. 
 
 Recording Contract. — Theoretically the record of a contract is 
 not notice to a third party who might buy from a dishonest seller 
 and take a deed of the same piece of property, without knowledge 
 of such an outstanding contract; he is not bound to search for the 
 record of such a contract; but if the contract be recorded, as 
 it often wisely is, the register or county clerk will return a mem- 
 orandum of it on a search for conveyances, and then knowledge, 
 that is, notice of it will be brought home to the otherwise innocent 
 third party, and the rights of the would-be purchaser under the 
 first contract be preserved. It is therefore often wise for the bi:yer 
 to go to the expense of recording his contract. 
 
 Sometimes such a contract is given by way of security for a debt; 
 it is then a mortgage and should be recorded with mortgages. 
 
36 REAL ESTATE CONTRACTS. 
 
 Vendor's Lien. — The seller of lands has a lien on them for the 
 unpaid purchase money against the buyer; but not against one who 
 has bought in good faith from the first buyer and without a notice 
 of the original vendor's lien; but if a bona fide purchaser has 
 bought without notice he will not be protected if he pays after 
 notice; he must have purchased in good faith, have paid a really 
 valuable consideration, and must have known no fact sufficient to 
 put him on inquiry, or the original lien of the seller will survive 
 against him. 
 
 The seller can waive his lien, and that very easily, by any act 
 which shows his intention to release the land; as for instance the 
 taking of a mortgage, or the buyer's note with security; or the note 
 of a third party, even though it should prove worthless; but merely 
 taking unsecured personal liability of the buyer, as for example his 
 note alone, is not such a waiver; nor would it be if he were to take 
 securities known to the buyer to be worthless but represented by 
 him to be good. A receipt of part of the purchase money is not a 
 waiver of the seller's lien for the balance. But if the seller ever 
 gives up his lien fairly and willingly, that is the end of it, and it 
 cannot be revived again in his favor. 
 
 Buyer's Lien. — But the buyer also has a lien on the land for 
 money which he may have paid on the contract for its purchase, 
 when the contract is broken by the seller; and if he has entered into 
 possession of the land and made improvements on it he would have 
 a lien for their value. 
 
 In an ordinary contract where the buyer has to pay and the seller 
 to give the deed at the same time, neither one can successfully sue 
 without alleging and proving the performance on his own part, or 
 readiness and willingness to perform. 
 
 Buyer Cannot Get His Earnest Money Back.— If the seller has 
 performed his part of the contract, and the failure to carry it out is 
 the fault or misfortune of the buyer, the latter cannot recover back 
 any money that has been paid by him on account; he can only get 
 it back when both parties agree to rescind the contract, or where 
 the seller is unable or unwilling to perform it on his part, or else has 
 been guilty of fraud in making the contract. And so a buyer who 
 has paid money on a void contract for the sale of land, which would 
 come within the statute of frauds, cannot recover it back if the 
 seller is able and willing to fulfil the contract on his part. 
 i Buyer Not a Tenant. — A party who goes into possession of land 
 under a contract, before he gets his deed, has been held by some courts 
 to be a tenant at will; as such he would be entitled to the growing 
 crops, supposing the land were a farm; and on the other hand, if he 
 had had any beneficial use of the premises and then abandon them 
 and broke his contract, he could be made to pay rent for the use and 
 occupation; the courts have held both ways, however, on this ques- 
 tion, and the latest decisions, and those which would, I have no 
 doubt, govern in the State of New York, hold that the relation of 
 
REAL ESTATE CONTRACTS. 37 
 
 landlord and tenant cannot exist between the buyer and seller of 
 land when the latter enters into possession under a contract and 
 fails to pay the purchase money; nor would such a default entitle 
 the seller to claim the contract as void and hold a buyer as a tenant 
 liable to pay rent; but he can bring an ejectment suit to get pos- 
 session of the land, and sue for the purchase money, or bring a suit 
 in equity to enforce his vendor's lien. 
 
 Damages for Breaking Contract. — Ordinarily the damages 
 which a buyer can recover against the seller, when the latter breaks 
 his contract and fails to give a deed as agreed, will be the amount 
 that the buyer has paid on account, the lawful interest, and prob- 
 ably, I may say certainly, his fair expenses that he has paid for 
 examining the title; this is where the seller has been guilty of no 
 fraud, but the contract was made in good faith, and he has been 
 unable to perform. If, however, the seller has been guilty of fraud, 
 or absolutely refuses to give a deed when he can, or has undertaken 
 to sell when he knew that he had no authority to make the contract, 
 or if when he might remedy a defect in his title he refuses to do so, 
 he can be made to pay the buyer damages for the loss of the bar- 
 gain, and the proper measure of such damages is the value of the 
 property at the time he broke the contract. If the seller, believing 
 that he had the right to sell, should make the contract in good faith 
 and then discover a fault in his title before he has received any of 
 the purchase money, no damages could be recovered from him for 
 refusing to give the deed. 
 
 If after you take the contract and before you get the deed you 
 employ and pay an architect to make plans for a building to be 
 erected on the premises and the contract is broken and you do not 
 get your deed, you cannot include in your damages the expense 
 incurred for the architect's plan; the contract does not contemplate 
 that the purchaser should prepare to build as if he were the owner 
 before he becomes owner; it leaves him, until its promised perfor- 
 mance, without the title or power or interests of owner. The expense 
 therefore is not within the contemplation of the parties, nor is it an 
 ordinary or anticipated consequence of the making of the contract. 
 Damages Against Seller for Fraud by Agent. — If the seller 
 receives and keeps the price, where his agent has been guilty of 
 fraud and misrepresentation, even if the latter were unknown to 
 the seller, the seller is liable to the buyer, and the latter may either 
 reconvey and recover back what he has paid, or keep the land and 
 sue for damages for the fraud. 
 
 Seller's Damages. — The only way in which the seller can 
 recover damages from the buyer for a failure to accept the deed is 
 by an action for specific performance; and of course the measure of 
 those damages is the full contract price. It is customary in the 
 case of a sale at auction where the purchaser does not come forward 
 and complete his purchase to put the property up again, and then 
 the damages that can be claimed from the first purchaser will be 
 
38 REAL ESTATE CONTRACTS. 
 
 the difference between the price at which the premises are first 
 struck off and that which it brings at the second sale, together with 
 the expenses of the re-sale; but this is not necessary in tne case of a 
 private sale, at least in New York, and the seller can recover the 
 full purchase price and interest, and the buyer who has failed to 
 complete cannot limit him to the actual damages caused by the 
 breach of contract. 
 
 Liquidated Damages. — The parties, however, may and often do 
 agree in advance how much damages shall be paid for breach of 
 contract, and this is written in the contract, but you want to call 
 theso liquidated damages and not a penalty. 
 
 Quite often a clause is inserted in the contract giving to either 
 party a certain sum, five hundred or a thousand dollars, or upwards 
 (according to the value of the property) as liquidated damages to 
 be paid by the other should the latter fail to give the deed or pay 
 the price. These are put as liquidated damages, and not as a 
 penalty, because the buyer or seller might be damaged by such a 
 failure, indirectly yet seriously in many ways, and yet it would be 
 difficult, and indeed impracticable, to put a money value on his 
 damages; for this the law allows the parties to name a lump sum, 
 and that will not be reduced nor inquired into by the courts. If, 
 however, you should write in your contract that such an amount 
 should be paid by either party as a penalty for failing to carry out 
 the contract, the law is opposed to penalties, mitigates and lessens 
 them when possible, and if the defaulting party refused to pay such 
 penalty, the one who sued for it would have a hard time proving 
 exactly the money value of his damages. 
 
 Rescission. — A contract may be set aside for mistake of fact; 
 also one which has been procured by fraud or by false representa- 
 tions; but there must be no delay in bringing such a suit; but if 
 the purchaser knows the representation to be false, then his con- 
 duct was not influenced by it and he has no right to make com- 
 plaint. Such a contract may be set aside for the misrepresentation 
 of the buyer as well as that of the seller; in a case in New York 
 the buyer said that the premises, a piece of wild land, were worth 
 nothing except as a sheep pasture when he knew that there was a 
 valuable mine on it of which the seller was ignorant, and the con- 
 tract was set aside for fraud. And there may be constructive fraud 
 which will avoid the contract, as where the seller or the buyer is a 
 lunatic or an idiot, or where the deed or contract was obtained from 
 a man intoxicated. The Court of Equity will quickly interfere in a 
 case where there are trust and confidence on one side and influence 
 and control on the other, as where a parent sells to a child or a 
 guardian buys from his ward; and in another New York case the 
 conveyance was set aside where an uncle induced his ignorant 
 young nephew to accept a deed and to cancel a debt of the uncle, 
 three times the value of the land. It must be borne in mind that 
 in such cases, where there was a relation of trust and confidence 
 
REAL ESTATE CONTRACTS. 39 
 
 between the paxties, it is not the duty of the one imposed upon to 
 show that the contract was unfair, but the burden of proof is on 
 the other party to show that there was absolute fairness and equity 
 in the whole dealing. Agreeing to take too small a price for your 
 land is not a good ground for avoiding your contract; but if there 
 be other circumstances existing which make it inequitable to 
 enforce the latter then inadequacy of price may also be considered; 
 this is more likely to arise where confidential relations have existed 
 between parties and have been abused. 
 
 Fraud — Purchaser's Remedies. — A buyer of real estate who was 
 induced to purchase by means of false representations has 
 his choice of remedies ; he may rescind the contract and after 
 an offer to reconvey, recover back the consideration paid, or he may 
 keep the land and recover damages for the fraud. The measure of 
 these damages is not, as it is in case of a breach of a covenant in a 
 deed, the price paid and interest, but is the difference in value 
 between the property sold and that for which it would have sold 
 had it been as represented. 
 
 Reformation for Fraud or Mistake. — If when you are selling 
 your land you make erroneous statements about it, no matter if 
 you believe them to be true, it would be a material mistake of fact ; 
 and if you did not believe them it would be a fraud on the pur- 
 chaser ; and in either case he could get the Court to reform the con- 
 tract or the deed. 
 
 Alteration. — A material alteration of any written contract by 
 one of the parties to it, without the knowledge or consent of the 
 other, not only discharges the latter from all liability upon it, but 
 if fraudulently made will release him also from all liability upon 
 the consideration for which it was made. 
 
 <* Specific Performance. — When either party will not keep the 
 contract, when the seller will not give the deed or the buyer pay 
 the price as agreed, the injured party may bring a suit in equity 
 and force the delinquent to carry out the agreement ; thus the 
 Court may order the seller to accept the price and to deliver a 
 properly executed deed, and may lock him up in jail until he obeys 
 If, however, the injured party can be compensated in money the 
 relief of specific performance will not be granted to him ; it is a 
 remedy which rests in the sound discretion of the Court. Still it is 
 almost a matter of course for specific performance to be decreed 
 where a contract for the sale of land is fair and certain and 
 reasonable. 
 
 In one case a buyer in New York City only gave himself eight 
 days in which to get his title searched ; when the time was up of 
 course he was not ready and ht asked an adjournment, which was 
 refused, and the seller kept the $500 that had been paid down, and 
 kept his land ; but three weeks afterward the buyer, having found 
 the title good, offered the balance of the price, and when the deed 
 was refused him brought such a suit, and the Court ordered the 
 
40 KEAL ESTATE CONTRACTS. 
 
 seller to give the deed and take the money, as it was shown that the 
 situation of the property and of the parties had not changed so that 
 any injury would result to the seller. And that is the principle 
 that underlies all decisions in suits for specific performance ; relief 
 will be given to a party who seeks it if he has not been guilty of 
 negligence, brings his suit within a reasonable time, excuses his 
 delay in completing the contract, and the situation of the parties or 
 of the property has not changed so that injury will result. Some 
 sellers would, in the case just cited, have found another buyer and 
 have had a new contract to show at a higher price within that 
 three weeks, whether the latter contract was ever carried out 
 or not. 
 
 Specific Performance — Title. — Before a buyer can successfully 
 resist performance of the contract on the ground of defect of title 
 there must be at least a reasonable doubt as to the latter, such as 
 affects its value and would interfere with its sale to a reasonable 
 purchaser, and thus render the land unmarketable. A defect in 
 the record title may furnish a defense to the purchaser. But there 
 is no inflexible rule that the seller must furnish a perfect record or 
 paper title; it has frequently been held that defects in the latter 
 may be cured or removed by parol evidence. 
 
 Good Title Implied. — If your contract should be so carelessly 
 drawn as not to specify the terms or form of the deed that is to be 
 given, nor the nature and extent of the estate in the property 
 intended to be sold, then such a contract impliedly warrants that 
 the seller has a good title and will convey a good title, free of all 
 encumbrances. 
 
 Fixtures. — Buyers frequently desire to know whether certain 
 articles in the premises they contract to purchase will come to them 
 under the contract as part of the real estate; this depends upon 
 whether such articles are " fixtures " or not in the eye of the law. 
 The rule as to what shall be deemed fixtures varies somewhat when 
 the question arises between a landlord and tenant and between a 
 buyer and seller of real estate. 
 
 Mirrors secured to the wall by an iron clamp, and let into and 
 glued to the mantel piece, and constructed at the same time and 
 with frames of the same wood as the mantel, would be held to be 
 fixtures; while a mirror resting upon a bracket and connected with 
 the wall only as picture frames usually are, would not be. Chairs 
 furnished to a theatre, of a special pattern adapted to the place 
 Where they are set and screwed to the floor because they cannot 
 stand alone, are a part of the building. A steam engine and boiler 
 may be set up in a building in such a way and under such a bargain 
 between the seller of these articles and the landowner that they 
 shall remain personal property, but machinery of great weight, 
 especially adapted for a factory and permanently fastened therein, 
 with the intention of leaving it there for permanent use, such as 
 machinery for a twine factory or for a paper mill, would be fix- 
 
REAL ESTATE CONTRACTS. 41 
 
 tures. Gas fixtures in a building, which can be taken away by 
 simply unscrewing them, are only personal property and would not 
 belong to the buyer unless specifically mentioned in the contract 
 for the sale of the house and land; but the opposite has been held 
 with regard to a sun-dial and a statue out of doors. 
 
 There are three requisites to constitute an article a fixture as 
 between the seller and buyer of real estate; the article must be 
 actually annexed to the land or house, it must be applicable to the 
 use or purpose to which the part of the land or house with which it 
 is connected is appropriated, and the person who annexed it to the 
 house or land must have intended to make a permanent accession 
 to the freehold. 
 
 " While not agreeing as to the necessity for or the degree of im- 
 portance to be attached to the fact of actual physical annexation, 
 yet the authorities generally unite in holding that, to constitute a 
 fixture, the thing must be of an accessory character and 
 must be in some way in actual or constructive union with 
 the principal subject, and not merely brought upon it; that 
 in determining whether the article is personal property, or has 
 become a part of the realty, there should be considered the fact and 
 character of annexation, the nature of the thing annexed, the 
 adaptability of the thing to the use of the land, the intent of the 
 party in making the annexation, the end sought by annexation, 
 and the relation of the party making it to the freehold. These other 
 tests named, while having an important bearing upon the questions, 
 whether there has been an annexation, and, if so, its effect, do not, 
 however, do away with the necessity of annexation, either actual or 
 constructive, to constitute a fixture. This would involve a contra- 
 diction of terms, and wipe out the fundamental distinction between 
 real and personal property. A thing may be said to be constructively 
 attached where it has been annexed, but is separated for a temporary 
 purpose, as in the case of a millstone removed for the purpose 
 of being dressed, or where the thing, although never physically 
 fixed, is an essential part of something which is fixed; as in the 
 case of keys to a door, or the loose cover of a kettle set in brickwork. 
 It is, perhaps, somewhat on this principle that the permanent and 
 stationary machinery in a structure erected especially for a particular 
 kind of manufacturing has been held fixtures, although very slightly 
 or not at all physically connected with the building; because without 
 it the structure would not be complete for the purpose for which it was 
 erected. Ponderous articles, although only annexed to the land by the 
 force of gravitation, if placed there with the manifest intent that 
 they shall permanently remain, may be fixtures. But, while physical 
 annexation is not indispensable, the adjudicated' cases are almost 
 universally opposed to the idea of mere loose machinery or utensils, 
 even where it is the main agent or principal thing in prosecuting 
 the business to which the realty is adapted, being considered a part 
 of the freehold for any purpose. To make it a fixture, it must 
 
42 REAL ESTATE CONTRACTS. 
 
 not merely be essential to the business of the structure, but it must 
 be attached to it in some way, or, at least, it must be mechanically 
 fitted so as, in ordinary understanding, to constitute a part of the 
 structure itself. It must be permanently attached to, or the com- 
 ponent part of, some erection, structure or machine which is 
 attached to the freehold, and without which the erection, structure 
 or machine would be imperfect or incomplete. 
 
 " In the application of this principle the Courts have held that beer 
 casks, fermenting tubs and a copper cooler used in the brewery 
 were protected by a chattel mortgage, and not covered by the 
 mortgage of the real property, saying that the intent that they 
 should remain in this brewery for permanent use there is unimpor- 
 tant. Intent alone will not convert a chattel into a fixture. A 
 farmer may take a plow or any other farm implement upon his farm 
 with intent to keep and use it there until it wears out, but this will 
 not make it real estate." 
 
 Repairs. — The seller is not bound to keep the premises in repair 
 after the contract is signed, unless the latter expressly says so. 
 
 Buyer Cannot Dispute Encumbrances. — If you are the buyer and 
 find encumbrances on the title, if you should accept a deed subject 
 to all liens, which you assume and agree to pay, you cannot after- 
 wards dispute the validity of any of those encumbrances — for 
 example : If a mortgage on the property were tainted with usury 
 you could obtain no advantage from that, but would be obliged to 
 pay the whole amount of principal and interest. 
 
 Encumbrances. — Both seller and buyer, therefore, must be very 
 careful to enumerate in the contract what encumbrances are on the 
 property. A party wall is not an encumbrance, but an agreement 
 to allow a clothes-post (as often in tenement property) is ; it is not 
 practicable to enumerate here all rights that would be so held ; and 
 the general rule can only be given that in case of doubt as to any 
 fact affecting the particular piece of property, that fact should be 
 mentioned and the agreement about it noted in the contract. 
 
 There is No Implied Warranty in a Contract for the sale of real 
 estate except as to title ; and as we have said before, all agreements 
 relating to the purchase and sale are merged in the deed, unless the 
 contract clearly shows a different intention ; this includes the 
 covenant of titles a good example of a contract which had cove- 
 nants that remained alive after the deed was given is one where 
 the buyer agreed to take the property subject to a mortgage 
 and to taxes not exceeding two thousand dollars, and he agreed 
 ta assume and pay the taxes ; the seller gave a deed which 
 conveyed the property subject to the mortgage and taxes, 
 but which did not contain a covenant on the part of the 
 buyer to assume and pay the taxes as he had agreed, although 
 he kept back two thousand dollars out of the consideration 
 named ; the mortgage was afterwards foreclosed and those 
 unpaid taxes were paid by the referee out of the proceeds of the 
 
REAL ESTATE CONTRACTS. 43 
 
 foreclosure sale, and the result was a deficiency of over two thou- 
 sand dollars against the seller. He brought a suit against the 
 buyer on the contract and sale, and the Court decided that the 
 latter's covenant to pay being part of the consideration for the 
 conveyance was not merged in the deed, and that his failure to pay 
 those taxes was a breach of that covenant, and that he must pay 
 said sum of two thousand dollars, by which amount the deficiency 
 judgment had been increased. 
 
 "Agrees to Sell," not "Sells." — Frequently contracts are 
 carelessly drawn so as to say that the seller " hereby sells and con- 
 veys" to the buyer instead of saying that he " agrees to sell and 
 convey." Such an instrument, however, would not be construed 
 by the Courts as an actual conveyance or deed, but from all the cir- 
 cumstances and from reading the paper as a whole it would be held 
 to be a mere agreement to convey. 
 
 Contract Sometimes is a Mortgage. — In order to prevent usury 
 and extortion an agreement to convey land will often be decided 
 by the Courts to be a mortgage upon the repayment of the money 
 paid, with interest ; and an agreement to sell the land back again 
 is often held to be similar to a mortgage, for example, in a suit just 
 tried this July, 1885, the facts were that away back in 1852 a man 
 bought property in Thirteenth street for $22,000, which he after- 
 wards conveyed to his wife and died. In 1878 there were two 
 mortgages on the property amounting to only $8,000 in all ; the 
 second mortgage, only $2,000, falling due, the widowed owner being 
 financially embarrassed, in order to prevent the sacrifice of the 
 property on a sale agreed with the holder of the second mortgage to 
 deed the property to the latter, and if within three years she should 
 pay up in full the second mortgagee agreed to reconvey it. The 
 old lady, over sixty, was unable to redeem it, and then the second 
 mortgagee claimed to be the full owner ; but a suit was brought 
 for a reconveyance and an accounting for the rents and profits on 
 the ground that the contract with the second mortgagee and the 
 deed given under it constituted an equitable mortgage. It resulted 
 in a judgment in favor of the widow. 
 
 Contract May Still Exist. — A very good example of the way in 
 which part of a contract may still survive the execution and deliv- 
 ery of the deed is a case where a buyer agreed in the contract 
 to take the property subject to taxes not exceeding $2,000 in 
 amount, and to assume and pay those taxes; after the deed was 
 delivered it was discovered that there had been omitted from it the 
 clause which it should have contained by which the grantee should 
 have assumed and agreed to pay those taxes; when a prior mort- 
 gage on the property was foreclosed there was a deficiency at the 
 sale, the amount of which was increased by those $2,000 worth of 
 unpaid taxes, and the buyer under the contract being afterwards 
 sued for that $2,000 the Court determined that he could be held and 
 
4& REAL ESTATE CONTRACTS. 
 
 was bound to pay it under the covenants in the contract of sale 
 although that clause had been left out of the deed. w 
 
 Real Owner. — The seller impliedly represents and warrants in 
 the contract, unless there are express statements to the contrary, 
 that he is the owner of the property which he assumes to sell, and 
 while a concealment of his want of title, should it not belong to 
 him, is not necessarily fraudulent, because he may intend and be 
 able to become the real owner before the time of closing the con- 
 tract, yet if he did intend to defraud and deceive on this point and 
 knew that he could not become such owner, the buyer may rescind 
 the contract and recover any money he has paid. 
 
 Payment. — If the price is payable in instalments the seller can- 
 not sustain a suit for the balance of the price without first proving 
 that he himself had tendered a deed. 
 
 Interest on Purchase Honey Mortgage. — Where the contract 
 says that a purchase money mortgage to be given shall bear even 
 date with the deed, " and interest from the date thereof," but does 
 not say what shall be the date of the deed, but only names the date 
 for the delivery of the latter, the mortgage will bear interest from 
 such date named as the date of delivery. 
 
 Time. — It has been decided that if the contract expressly fixes 
 the place and day and hour for performance, this makes time "of 
 the essence of the contract ;" in the suit that decided this, however, 
 there had been an adjournment to another day and hour to enable 
 the buyer to examine an objection to title which was specified, and 
 when that time arrived the buyer's lawyer was sent for and refused 
 to leave his office and only answered by requesting several days 
 further adjournment; when the buyer afterwards brought a suit 
 for specific performance he was defeated on the aforesaid ground. 
 
 Damage to Premises after Contract Signed. — Sometimes after 
 a contract is signed the house burns down, or careless blasting in 
 the neighborhood injures it, or the premises are otherwise dam- 
 aged ; the buyer then objects to paying the full amount of the con- 
 sideration ; but the law is that he must pay in full. Courts of 
 equity consider that a valid contract obliges the seller to give a 
 deed of the land to the purchaser, and they hold that whatever 
 ought to be done should he considered already done, and they look 
 upon the seller as a trustee of the land for the buyer ; hence the 
 buyer gets all the benefit if there be any increase in the value of 
 the property after the contract is signed, as from a new railroad or 
 a park, or any other public or private benefit ; and he has to stand 
 all the loss or decrease of value that may come, whether the 
 weather damages it, or some part decays, or it burns up, or is bat- 
 tered down by accident, or destroyed by a mob ; he must in any 
 event pay the full price to the seller, unless, indeed, the seller him- 
 self should do some wrongful act of waste upon the premises which 
 would give the buyer a valid claim against him for damages. 
 
REAL ESTATE CONTRACTS. 45 
 
 Insurable Interest. — Hence the buyer under a real estate con- 
 tract has an insurable interest in it to the full amount of the value 
 of the buildings, and can take out a valid policy for the time while 
 title is being examined. If, however, liquidated damages are named 
 in the contract for its non-performance, a poliey for that amount 
 would be sufficient to protect the buyer, as he could then safely 
 refuse to complete if the premises were seriously injured by fire. 
 
 The seller, however, does not lose his insurable interest because 
 the buyer has also acquired one, but any policy he has will still 
 hold good (provided he notifies the company of the change that has 
 taken place in his interest as such policies all require); only the 
 insurance company, paying his loss, will be subrogated to his rights 
 and entitled to receive the balance of the purchase money from the 
 buyer. 
 
 Bents. — If nothing be stipulated in the contract, rent of premises 
 which has not yet fallen due when the deed is given will go entirely 
 to the purchaser; and, on the other hand, rent already due, although 
 even in advance and for a period of time extending beyond the 
 delivery of the deed, will remain the property of the seller. The 
 fairer way, however, is to agree in the contract to apportion the rent 
 up to the date of delivery of the deed. 
 
 Interest on the Price. — If the time for closing the title be 
 adjourned by consent for whatever cause, and nothing be stipulated 
 at the time of granting the adjournment, no interest upon the 
 balance of the purchase money to be paid, nor upon any part of the 
 price already paid, can be demanded in addition to or differently 
 from the specific agreements about interest in the contract. And 
 unless care be taken the seller might become entitled to additional 
 rent falling due during the adjournment, or become liable to pay 
 additional taxes (under his agreement to give a clear title), or the 
 buyer become released from paying interest on some mortgage 
 during the period of adjournment. The better way in agreeing 
 upon such adjournments is to stipulate, when agreeing to them, 
 that " the title shall be closed as of the original date of delivery of 
 deed first agreed upon." 
 
 Mortgages. — The contract must carefully specify how many and 
 what mortgages are to remain as liens upon the premises ; and if 
 any agreement is made as to how long a mortgage has to run, or is 
 to be allowed to remain upon the property, see that this is explicitly 
 stated. 
 
 Assumption of Mortgage. — If you do not intend to be bound to 
 pay a mortgage already on the premises (suppose, for instance, that 
 you might be glad to let the property go if only you are not bound), 
 be very careful not to "assume and agree to pay as part of the con- 
 sideration ;" all you want to do then is to take it "subject to" a 
 certain mortgage. It is somewhat surprising how often the 
 " assumption clause " slips into a contract, and then (as 'it must) 
 into the deed, unnoticed by the buyer. 
 
46 REAL ESTATE CONTRACTS. 
 
 By-the-way, the agreement to assume a mortgage need not be in 
 writing to be valid and binding ; an oral promise by the buyer is 
 sufficient where the seller fully performs his agreement, executes 
 and delivers a deed, and givea possession of the premises to the 
 buyer. So look out what you agree to, orally, about that. 
 
 [Oral— Verbal. — When you speak of anything agreed to or done 
 by word of mouth, don't call it verbal ; call it oral ; everything that 
 is written in words is verbal; that is what verbal means, "by 
 words ;" everything that is done or promised in writing as well as 
 in speech is done verbally ; these words are used very carelessly 
 and incorrectly.] 
 
 An agreement to pay the accrued or the future interest upon a 
 mortgage will not, however, bind the purchaser to pay the principal. 
 
 (Purchase Money Mortgage. — And so, too, if the buyer is to 
 give back a purchase money mortgage for part of the price, all the 
 details about this mortgage should be carefully written out in the 
 contract; not only how long it is to run and at what per cent., but 
 all the special covenants and agreements which the one who is to 
 take the mortgage desires to have in to protect himself; and the 
 buyer must notice these, as some of the more modern conditions in 
 mortgages are quite burdensome. 
 
 Mortgage "With 1'ull Agreements. — An iron-clad mortgage 
 now contains agreements on the part of the mortgagor that if inter- 
 est remains unpaid, say thirty days, the whole mortgage may be 
 foreclosed (this time of grace, however, is in favor of the mortgagor); 
 that if taxes or assessments remain unpaid, say ninety days, the 
 whole mortgage may be foreclosed (these days of grace are also in 
 mortgagor's favor;; that if default be made in payment of interest 
 or principal when due the mortgagee may at once take possession 
 of the premises, collect the rents, and pay all necessary expenses, 
 without any legal proceedings, and without being deemed a tres- 
 passer; that in cane of any such default the mortgagee may at once 
 upon beginning a foreclosure suit and without any notice to or 
 consent of the mortgagor have the Court appoint a receiver to 
 collect the rents and take care of the property; that in case of any 
 such default the mortgagee may have the property sold according 
 to law and apply the proceeds to payment of the debt and expenses 
 of foreclosure and sale; that the mortgagor will keep the premises 
 insured or the mortgagee may do it and add the premium to the 
 mortgage; that if the mortgagor does not pay the taxes and assess- 
 ments the mortgagee may do it and add them on to the mortgage; 
 and that the mortgagor and his heirs and assignees will at any time 
 make and deliver any further deeds and instruments the mortgagee 
 may think he needs to make his title good. Each detail, such as 
 the foregoing and relating to the mortgage, must be specified in the 
 contract of sale, or the buyer or seller cannot insist upon having 
 it in the mortgage when it comes to be drawn. 
 
REAL ESTATE CONTRACTS. 47 
 
 Mortgage by a Corporation Buying. — Under the laws of New 
 York, before a mortgage given by a corporation can be valid the 
 duly executed written assent of two-thirds of the stockholders must 
 be filed with the County Clerk where the property is situated. This 
 assent, however, is often deemed unnecessary in the case of a 
 purchase-money mortgage given by the corporation; still, as 
 opinions differ, it is better to have the stockholders execute such an 
 assent even in that case, and thus prevent objections, however 
 mistaken, from any source. 
 
 Signature by a Corporation. — And, by-the-way, a deed or mort- 
 gage or other instrument executed by a corporation does not at law 
 require any signature at all; the president need not put his name 
 there nor sign the name of the corporation either alone or by him- 
 self as president; all that is necessary is to affix the seal of the 
 corporation. 
 
 However, it is customary to have the executive officer or officers 
 sign, and where the by-laws or the certificate of incorporation, or 
 the charter of the corporation requires in express terms that such 
 instruments be signed or countersigned by certain officers, such 
 signatures would of course be necessary to their validity. 
 
 Leases. — If there be an outstanding lea.=e on the premises sold, 
 the seller for his own protection must cause the details of such 
 lease to be specified in the contract, and that the buyer takes 
 subject to the same; so, too, if the buyer wishes to be certain that 
 the premises as leased bring in a certain amount of rent for a cer- 
 tain term, he should have those items carefully mentioned. 
 
 Will. — If your property came to you by will, be sure and get 
 good legal advice and know what the will means, and whether you 
 have the power and right to sell, before you sign a contract. Nice 
 questions often arise ; parties lately consulted me just in time to 
 prevent their signing a contract to sell and give a warrantee deed, 
 when the will which gave the property left it to the widow for life, 
 then to the son, but if the son should die first and leave no 
 children, before his mother, the widow, then the property to go to 
 the brothers and sisters of the deceased ; the widow and son want 
 to sell the property, but no one who knew what he was about 
 would take their deed, and no one to-day can give a perfect title 
 under that will. On the other hand, the General Term of the 
 Supreme Court in New York has just decided, this October, 1885, 
 that where a will left the property to the widow as long as she 
 remained unmarried and his widow, but on her decease or remarriage 
 to the son or his heirs, the title vests in the son, subject to the 
 widow's life estate, and that if they both join in the deed, they can 
 give good title ; and the Court made the purchaser take his deed. 
 
 Short Contracts of Sale. — While carelessness and baste should 
 by all means be avoided in making real estate contracts, yet some- 
 times exigencies arise when very brief contracts are necessary: and 
 here I quote, with permission, the practical, pithy remarks of that 
 
48 REAL ESTATE CONTRACTS. 
 
 eminent lawyer Mr. Austin Abbott, which appeared in the Daily 
 Register (the New York law journal), of September 24, 1885: 
 
 It is often convenient to know how concise and informal a writing will 
 serve to bind the parties to an executory contract for the purchase and sale 
 of real estate. A clear idea on the point is serviceable often to the attorney 
 whose client brings hi™ a very informal memorandum, as representing a 
 contract he has made and which the attorney is to superintend the fulfill- 
 ment of. It is also useful often in delicate negotiations, where a nervous 
 or uncertain owner or buyer may hesitate if left long enough to have a 
 formal contract drawn. 
 
 The statute requires that " the contract, or some note or memorandum 
 thereof, be in writing and be subscribed by the party by whom the lease or 
 sale is to be made," or " by the agent of such party, lawfully authorized." 
 
 The courts unanimously interpret this as requiring a note or memorandum 
 expressing all the terms of the agreement. 
 
 The document may be as trivial in form as it could happen to be, if it 
 meets this requirement in substance. 
 
 It is no objection to its validity that it is in pencil, or that it has no seal, 
 no witness, no acknowledgment. 
 
 An engrossed contract will not satisfy the statute any better than a 
 receipt or a telegram, or an entry in one's diary, or an affidavit in legal 
 proceedings, or correspondence, or even a letter to a third person, so 
 long as the substance is there; the parties, the agreement, the premises, the 
 terms and the subscription. 
 
 It is no objection to the memorandum that it was not made at the time 
 the bargain was struck, nor that it was not delivered to the other party, 
 unless it was prepared and subscribed in anticipation of an intended deliv- 
 ery and intended not to take effect meanwhile. 
 
 It is clear then that the memorandum is not the contract, but only a 
 peculiar kind of evidence of the contract, without which the contract is not 
 enforcible at law. 
 
 The essentials are parties, designation of premises, price, and terms if 
 any credit is agreed on. 
 
 Both parties must be designated, and the premises must be designated, 
 but a memorandum is not invalid because it does not give the residence of 
 the parties or the precise location of the premises. An agreement by John 
 Smith to convey to John Jones a house on Church street, without saying 
 anything of the whereabouts of either, would be foolishly meager, but, if 
 litigation arose, Jones might prove that the particular John Smith whom he 
 sued on the contract was the same John Smith who owned and occupied 
 a house and lot on Church street, in the town of Somerville, Mass., and 
 no other on any street of that name, that the lot had well-defined bound- 
 aries, and that immediately before signing the memorandum the two men 
 had been in treaty for a sale of those premises. When these circumstances 
 were proved a. Court well advised of the present state of the law would 
 hold that the writing sufficiently designated the parties and the premises. 
 But it is nevertheless true that many a purchaser or vendor has been 
 unable to enforce a similar contract because the circumstances were not 
 susceptible of the clear or satisfactory proof necessary to enable the Court 
 to apply it to specific premises and a definite area of land. 
 
 It is always enough, however, with land that is in actual possession or 
 has a known designation to describe it by such possession or designation, as, 
 
REAL ESTATE CONTRACTS. 49 
 
 for instance, the farm now occupied by me, or the house and lot known as 
 No. 1 Church street in the town of Somerville and State of Massachusetts. 
 There are the best of reasons for giving a full and accurate description 
 such as is usual in deeds when the case allows of so doing, but the advan- 
 tage secured does not relate to the binding effect of the memorandum, but 
 to the precise extent of the obligation assumed by the signer. 
 
 The price and terms, if any, must also be designated, but here again the 
 utmost conciseness is consistent with validity. 
 
 A receipt for a payment, if it designates the parties and the premises 
 and specifies the full price agreed on is sufficient, therefore as against the 
 party signing it, except that if it be for a part payment it should fix the 
 time for paying the balance. Whether the latter point is essential, how- 
 ever, the Courts are not agreed. Some have held that on an agreement to 
 pay money without fixing a time the law implies an obligation to pay imme- 
 diately. This is very true in the case of debtors ; yet, a part payment on 
 an executory contract may justly be thought to imply an understanding 
 that the balance should not be instantly due, but payable at some future 
 day. A receipt for payment in full, however, might properly be deemed to 
 imply an obligation to convey forthwith. 
 
 If all these elements of the contract are thus indicated the memorandum 
 lacks only one thing more, and that is words of agreement. The note or 
 memorandum must be a note or memorandum of a contract. 
 
 These suggestions are not given as guides for drawing contracts. In a 
 great proportion of cases there would be serious disadvantage in their 
 use. The death of either party, the falsehood of a witness, the destruction 
 of buildings by fire, many other incidents such as often occur between 
 contract and conveyance, would be very likely Ito invite litigation. No 
 one should rely on such a thread when he can have a strong cord, but 
 there are often cases when the negotiator must do the best the moment 
 admits of. And there are often cases when the attorney has to advise off- 
 hand on the sufficiency of such a memorandum. 
 
 In the latter class of cases he should ask his client if the scrap of paper 
 shown him embodies all the terms of the agreement, otherwise it may be 
 found not to satisfy the statute. 
 
 And for the same reason in drawing a short memorandum especial 
 care should be taken that nothing which is actually agreed on is omitted 
 from the memorandum. 
 
 Exchange of Premises. — An exchange of land, according to 
 Blackstone, is a mutual grant of equal interests, the one in consider- 
 ation of the other. Generally, however, there is an inequality of 
 values which is made good with money, or by mortgage, or other- 
 wise. When one party has performed his part of such a contract and 
 the other for any reason fails to perform on his part, the question 
 arises what damages the former is entitled to. In New York this 
 has been held to be either the purchase money or consideration 
 stated in the deed of the property conveyed by the performing 
 party, or the value of the piece of property contracted to be con- 
 Teyed to him, as he might elect ; and in another case where the 
 defaulting party had agreed to not only convey a piece of land in 
 exchange, but also to pay a certain sum of money, and also to 
 transfer a certain debt due from a third person, and performed all 
 
BO SEAL ESTATE CONTRACTS. 
 
 but the transfer of the debt, the Court decided that the 
 party who had fully performed was not bound to deduct from the 
 value of his piece of property the money and the value of the piece 
 of property he had received and then sue for the balance, but that 
 he might sue outright for the value of the debt which had not been 
 transferred, although that might be greater than the balance of the 
 value of the first piece of property ascertained as aforesaid. 
 
 It is better in an exchange to so express it in one contract, just as 
 the agreement is, and not to have two separate contracts of sale 
 from each party to the other, which would have to be connected 
 together by parol evidence should any trouble arise. 
 
 •Purchaser Not a Tenant. — If a purchaser be allowed to go into 
 possession before he has paid all the price, and he afterwards fails 
 to pay up and refuses to take title, the seller cannot claim that the 
 buyer is his tenant, either at will or any other way, and sue him 
 for rent, for use and occupation; all the landlord can do is either sue 
 him at law for the balance of the prict, or better still in equity to 
 foreclose his vendor's lien; or else take the long-winded way of an 
 ejectment suit, where either party has the right to three trials 
 altogether ; the wise man will therefor get his money first before 
 delivering possession. Taking a mortgage for part of the price is 
 all right, because the mortgage protects the seller. 
 
 Delivery of Possession. — The buyer ought not to pay his money 
 until he gets absolute possession of the premises, otherwise he may 
 get a lawsuit on his hands. Possession can be given by going on 
 the premises and giving the key, or by simply giving the key if the 
 house is vacant ; or by assigning over the lease if there be a lease ; 
 if there be no written lease the buyer should ask every person in 
 possession by what right he is there, and the landlord should give a 
 letter to each tenant telling him to pay the rent from a certain day 
 when due to the buyer. 
 
 To Bind Heirs and Administrators. — If the seller dies, his 
 heirs must carry out the contract and give a deed in accordance 
 therewith. This, however, often necessitates considerable delay. 
 If the buyer dies, his administrator is bound to carry out the con- 
 tract, pay the price and take the deed. Where, however, the per- 
 sonal estate of a deceased buyer is insufficient to pay his debts, a 
 New York statute provides that his executors or administrators may 
 apply to sell his interest in any land held under a contract for the 
 purchase thereof. The sale to be made subject to all payments due 
 or to become due on the contract. 
 
 Assignment of the Contract. — An assignee of a contract for 
 the sale or purchase of land takes it subject to all the equities 
 against, and the special agreement is made by, his assignor. But if 
 the buyer assigns the contract, his assignee is not personally liable to 
 pay the remainder of the purchase money due under the contract, 
 unless there is an express or implied agreement on his, the 
 assignee's, part to. do so. 
 
REAL ESTATE CONTRACTS. 51 
 
 Varieties of Contracts. — There are other forms of contract for 
 the sale and purchase of land, but they are of such an intricate 
 character that even a very wise man who thinks he knows all about 
 everything will feel that he had better get the aid of a man learned 
 in the law upon one of that kind; for example, a man may agree 
 with his wife that he will deed to her his farm, provided she will 
 make her last will and testament in favor of all of their children; 
 this is a contract which the Court will enforce, and if she makes a 
 will in contravention of this the Court will set it aside; another 
 variety is that of a building contract, where land is sold with an 
 agreement by the buyer to build and by the seller to lend the buyer 
 money on bond and mortgage upon the same land and house. It is 
 thought best not to go into discussion of such contracts in this 
 monograph. 
 
 Finally.— And, finally, do not either give or take a deed of prop- 
 erty until every encumbrance is removed, every little detail of the 
 contract is carried out; if you do, delay in its performance, vexa- 
 tion and trouble will come upon you, and often an expensive law- 
 suit. And law is war. Botli sides lose money in a lawsuit; always 
 willing and eager to set a lawyer at work using up his strength and 
 brains to accomplish their views, but almost always paying him 
 grudgingly, and thinking if he wins that he should look to the losing 
 side for his pay (which the law does not allow), or not charge much 
 for his work, however hard, because his client has had delay and 
 loss; or, if he loses, that he should not look for any pay at all, 
 although he may have worked still harder; not appreciating that 
 it is the clients who desire or cause the fight, and that litigation, 
 which is contention, conflict, quarrel (from the old High German 
 werra), war, is destructive to property at least, if not to life. If, 
 however, such a conflict be forced upon you, if wise you will not 
 try to protect yourself with a five-dollar shotgun and cheap ammuni- 
 tion, but will provide yourself with the best equipped armament 
 you can afford; pay an active, studious lawyer well, and be benefited 
 by his willing aid. 
 
 Many topics and points upon the law of real estate other than 
 those in the foregoing pages have suggested themselves, but as they 
 do not belong to the subject of a contract of sale they are not 
 touched upon. If this be found sufficiently interesting to demand 
 a future edition, the author will be glad to include therein answers 
 to all pertinent questions which he may receive, and which he 
 invites. 
 
 [Apportionment of Bents.— Note.— A New York statute of 1875 
 was in December, 1881, interpreted to have altered the rule as stated on page 
 45 and to require apportionment up to date of passing title, but the correct- 
 ness of that interpretation is doubted, as that statute is deemed to have been 
 intended to apply to cases where title to property changes involuntarily, as 
 by death, and not by contract; the safe way is to put an explicit agreement 
 in the contract.] 
 
52 REAL ESTATE CONTRACTS. 
 
 A FOEM OF CAEEFUL OONTEAOT. 
 
 (Correct amounts omitted for obvious reasons,) 
 
 In consideration of the sum of one dollar to each by the other in hand paid 
 it is hereby agreed between William L. Andrews, of the city of New York, 
 of the first part and The J. L. Mott Iron Works, a corporation existing 
 under the laws of the State of New York, of the second part, as fol- 
 lows, viz.: 
 
 The party of the second part hereby agrees to purchase from the devisees 
 of Loring Andrews, deceased, all that certain piece or parcel of land, with 
 the buildings thereon, in the city of New York, known as Nos. 84, 86, 88 
 and 90 Beekman street, known as the St. George Buildings, and the area on 
 the west betweeen said buildings and the property of Tatham Brothers, so 
 far as the said devisees have a right to convey the same, containing in front 
 on Beekman street about one hundred and thirteen (113) feet, eight (8) inches, 
 in the rear about one hundred and twenty-five (125) feet, eleven (11) inches, 
 on the easterly side on Cliff street about one hundred and thirty-three (133) 
 feet, five (5) inches, and on the westerly about one hundred and twenty-two 
 (122) feet, eleven (11) inches, being the entire property known as the St. 
 George Buildings, for the price of three hundred and fifty dollars, to be 
 paid as follows: One hundred and ten dollars in cash on delivery of the 
 deed as hereinafter mentioned, and two hundred and forty dollars by the 
 purchase money bond and mortgage of said party of the second part, on 
 said premises at 5 per cent, per annum interest payable semi-annually, the 
 principal to be payable on or before the expiration of ten years, in Aimnal 
 instalments of not less than twenty-five dollars each, or in multiples of five 
 dollars in excess of that amount at the option of the party of the second 
 part, on ninety days notice in writing; said mortgage to contain the usual 
 tax, interest and insurance clauses. And if the party of the first part so 
 elects it may be divided into several mortgages of such amounts as shall be 
 most convenient for distribution among the aforesaid devisees, according to 
 their respective interests. 
 
 The premises are to be conveyed by a good title in fee simple, free and 
 clear of all encumbrances except the existing leases thereon ; and the agree- 
 ment now in force to furnish power from the engine in said building to the 
 premises Nos. 61, 63 and 65 Cliff street, and also subject to all such rights 
 and privileges of light and air and all such rights and privileges in, over 
 and upon a part of said premises as were granted and conveyed by William 
 B. Dodge and others to William P. Tatham in and by a certain agreement 
 or instrument bearing date the 30th day of June, 1860. The party of the 
 first part and the said devisees or any of them shall not reserve any right 
 of way under said agreement of 30th June, I860, for their adjoining Cliff 
 street property. 
 
 The deed of conveyance as to six undivided sevenths of said premises is 
 to be a full covenant warranty deed, subject as aforesaid ; and as to one 
 undivided seventh part thereof is to be a trustee's deed in the usual form. 
 The said William L. Andrews agrees to use his best endeavors to procure 
 the execution of said deeds at as early a date, not later than May 1st, 1880, 
 as practicable; but it is expressly agreed and understood in case of the 
 failure or refusal of any of the tenants in common with said William L. 
 Andrews to execute said deed, that in such case the said William L. 
 Andrews shall not be held personally liable or responsible for such failure 
 
REAL ESTATE CONTRACTS. . 03 
 
 or refusal, but that then and in such case this agreement shall become and 
 be null and void, and neither party shall have any claim against the other 
 for damages by reason of the non-fulfilment hereof through such failure or 
 refusal to execute such deed. 
 
 It is understood that the present owners of said real estate are the said 
 William L. Andrews, James B. Andrews, Constant A. Andrews, Loring 
 Andrews, Walter S. Andrews and Clarence Andrews, as devisees under the 
 will of the late Loring Andrews, deceased, and Daniel Morison, as trustee 
 of the separate estate of Isabel Von Linden, the said Isabel Von Linden 
 being also a devisee under said will; and that the said Constant A. 
 Andrews, Walter Scott Andrews and Isabel Von Linden have heretofore 
 authorized, in writing, the said William L. Andrews to accept for them a 
 certain price for the property, and that this agreement is executed under 
 such an understanding. The said Constant A. Andrews and the said Daniel 
 Morison as trustee as aforesaid, execute this agreement for the purpose of 
 ratifying and confirming the said sale as far as respects their respective 
 interests in said premises. 
 
 The deed of said premises is to be delivered and the consideration paid at 
 the office of the counsel of the party of the second part, Mr. Geo. W. Van 
 Siclen, No. 146 Broadway, New York City, on the first day of May, 1880, 
 at 12 o'clock noon. The bond and mortgage hereinbefore referred to is to 
 be drawn by De Forest & Weeks, Esqs., the counsel of the vendors, and 
 the expense of drawing and recording the same is to be paid by the vendee. 
 Witness the hands and seals of the parties the eighteenth day of Feb- 
 ruary, one thousand eight hundred and eighty. 
 
 The J. L. Mott Iron Works, by 
 
 Jordan L. Mott, President. [l. s.] 
 Wm. L. Andrews, [l. s.] 
 
 Constant A. Andrews, [l. s.] 
 
 D. Morison, Trustee. [l. s.] 
 
 Whereas, since the execution of the annexed contract, Loring Andrews, 
 owner of one undivided seventh of said premises, Nos. 84 to 90 Beekman 
 street, has died, and The J. L. Mott Iron Works, the party of the second 
 part thereto, has agreed to accept from the owners thereof a conveyance of 
 six undivided sevenths of said premises, and to pay the sum of three hundred 
 dollars therefor, 
 
 And, whereas, the said The J. L. Mott Iron Works is desirous of obtain- 
 ing the ownership of the remaining one-seventh part of said premises whereof 
 the said Loring Andrews died seized, as soon as a good title thereto can be 
 made and said interest conveyed, and is willing to pay therefor the sum of 
 fifty dollars in cash. 
 
 And, whereas, in order to obtain such conveyance it may become 
 neccessary to take proceedings by action or otherwise to that end, and the 
 said The J. L. Mott Iron Works is desirous of being protected against any 
 cost or expenses in excess of said fifty dollars, 
 
 Now, therefore, this agreement witnesseth that in consideration of the 
 premises the parties to said agreement have mutually agreed as follows: 
 
 That the sum of five dollars be deposited in the United States Trust Com- 
 pany, of the City of New York, payable to the joint order of Mr. Francis 
 H. Weeks and Mr. George W. Van Siclen, the attorneys of the respective 
 parties hereto, such deposit to be held for the purpose of indemnifying the 
 said The J. L. Mott Iron Works against any damages, costs, expenses or 
 
64 REAL ESTATE CONTRACTS. 
 
 payments in excess of fifty dollars which it may be compelled to pay in order 
 to procure the conveyance of said one-seventh interest in said premises of 
 which the said Loring Andrews, Jr., died seized, provided, however, that 
 the one-seventh part of the net rents of said premises accruing from and after 
 the 1st day of April, 1880, and payable to the estate of said Loring Andrews, 
 Jr. , deceased, is not to be reckoned as forming a part of the sum paid for the 
 purchase or conveyance of said one-seventh interest, said snm of five dollars 
 to be applied whenever the said one-seventh interest has become vested in 
 the said The J. L. Mott Iron Works, first, to reimbursing to it any payments 
 made by it in excess of said snm of fifty dollars in the procuring the convey- 
 ance of said interest; and, secondly, the surplus, if any, remaining after 
 such application to be paid over to the said Francis H. Weeks, Esq., as the 
 attorney for the estate of the said Loring Andrews. 
 
 And it is further covenanted and agreed that the rental to be paid by the 
 said The J. L. Mott Iron Works for said one undivided one-seventh to the 
 heirs or devisees of said Loring Andrews, Jr., deceased, shall be 5 per cent, 
 upon fifty dollars from and after April 1st, 1880. 
 
 De Forest & Weeks, [l. s.] 
 
 Attorneys for Vendors. 
 The J. L. Mott Iron Works, by 
 
 Geo. W. Van Siclbn, [l. s.] 
 
 Attorney. 
 
 SIMPLE FORM OF CONTRACT. 
 
 These Articles of Agreement made the fifteenth day of October, 
 in the year one thousand eight hundred and eighty-five, between George 
 H. Wallace, of the City, County and State of New York, party of the first 
 part, and John A. Dermody, of the City of Brooklyn, County of Kings and 
 State of New York, party of the second part, witnesseth: 
 
 The said party of the first part, in consideration of the sum of one 
 thousand dollars to him duly paid, the receipt whereof is hereby acknowl- 
 edged, hereby agrees to sell unto the said party of the second part, all that 
 certain lot, piece or parcel of land, with the buildings thereon, situate in the 
 Sixteenth Ward of the City of Brooklyn, and known as No. 45 Eighteenth 
 street, and bounded and described as follows: Beginning on the northerly 
 side of Eighteenth street, one hundred (100) feet westerly from the north- 
 west corner of Eighteenth street and Eighth avenue, and r unning thence 
 northerly and parallel to the avenue and part way through a party waQ 
 one hundred (100) feet, thence westerly and parallel to Eighteenth street 
 twenty-two (32) feet, thence southerly and parallel to Eighth avenue and 
 part way through a party wall one hundred (100) feet to Eighteenth street, 
 and thence easterly along Eighteenth street twenty-two f22) feet to the point 
 or place of beginning, together (Pith ail siiadsa m iha windows, acd also rsc 
 refrigerator nov> in the house on said premises, for the consideration of twenty 
 thousand dollars to be paid by the party of the second part in the manner 
 and at the times hereinafter stated. 4 And the said party of the second part 
 hereby agrees to purchase said premises at the said consideration of twenty 
 thousand dollars, and to pay the same as follows: Nine thousand dollars 
 upon the fifteenth day of November, 1885, when the deed is to be delivered; 
 
REAL ESTATE CONTRACTS. 55 
 
 fire thousand dollars in the mortgage held by the Broadway Savings Insti- 
 tution, now a lien on said premises, and which mortgage the party of the 
 second part hereto shall assume and agree to pay as part of the aforesaid 
 consideration; five thousand dollars in the purchase money bond and mort- 
 gage of the party of the second part upon the aforesaid premises, to bear 
 date November 15th, 1885, and to contain a twenty-day interest clause, a 
 ninety-day tax and assessment clause, and the usual insurance clause, 
 together with the usual receiver's and warranty clauses; and one thousand 
 dollars in the aforesaid sum paid as the consideration for this contract, 
 which shall be allowed upon the consideration for said deed upon completion 
 hereof by the party of the second part. 
 
 And the said party of the first part, on receiving such payments at the 
 time and in the manner above mentioned, shall, at his own proper cost and 
 expenses, execute, acknowledge and deliver to said party of the second part, 
 or to his assigns, a proper deed containing a general warranty and the 
 usual full covenants for the conveying and assuring to him or them, the fee 
 simple of the said premises, free from all encumbrance, except the afore- 
 said mortgage of five thousand dollars now a lien on said premises, and 
 except also an existing covenant against erection of buildings upon the front 
 portion of said lot, and which deed shall be delivered on the fifteenth day of 
 November, 1885, at twelve o'clock M., at the office of Mr. Geo. W. VanSiclen, 
 No. 146 Broadway, in the City of New York. The risk of loss or damage by 
 fire prior to the completion of this contract is hereby assumed by the party 
 of the first part. The rents of the said premises shall be apportioned and 
 allowed up to the day of taking title. 
 
 And it is hereby further agreed that in case either party hereto shall 
 fail or refuse to carry out this contract or any part thereof by him to be 
 performed, the party so failing shall and will pay to the other party, his 
 executors, administrators or assigns, the sum of five hundred dollars, which 
 sum is hereby declared fixed and agreed upon as the liquidated damages 
 to be paid by the party so foiling for his non-performance. 
 
 And the party of the first part hereby agrees to furnish the party of the 
 second part on or before the 17th day of October, 1885, with an abstract 
 of title of said premises and the searches appended thereto down to April 
 9th, 1879, when he purchased the same, or to pay towards the cost of an 
 abstract and searches one hundred dollars. 
 
 And it is understood that the stipulations aforesaid are to apply to 
 and bind the heirs, executors, administrators and assigns of the respective 
 parties. 
 
 In Witness Whereof, the parties to these presents have hereunto set 
 their hands and seals, the day and year first above written. 
 
 Geo. H. Wallace. [l. s.] 
 John A Debmody. [l. s.] 
 
 State of New York ) 
 
 City and County of New York | 0B- 
 
 On this fifteenth day of October, one thousand eight hundred and eighty- 
 five, before me personally came George H. Wallace and John A Dennody, 
 to me known, and known to me to be the individuals described in and who 
 executed the foregoing instrument, and they thereupon duly acknowledged 
 to me that they had executed the same. 
 
 A. Fbed. Silverstone, 
 
 Notary Public, New York County. 
 
66 EEAL ESTATE CONTRACTS. 
 
 A GOOD FORM FOR EXCHANGE. 
 
 Agreement made and entered into the fourteenth day of November in the 
 year one thousand eight hundred and eighty-five, between John Doe, of the 
 town of Flushing, County of Queens and State of New York, party of the 
 first part, and Richard Roe, of the City, County and State of New York, 
 party of the second part, in manner following: 4 The said party of the first 
 part, in consideration of ten dollars duly paid by the party of the second 
 part, the receipt whereof is hereby acknowledged, and also in consideration 
 of the conveyance of the property hereinafter mentioned, belonging to the 
 said party of the second part, doth hereby agree on his part, to give and 
 grant unto the said party of the second part all that parcel of land situate, 
 lying and being in said town of Flushing, lying on the westerly side of the 
 highway between Flushing and Bayside, known as the Vleigh farm, bound- 
 ed by land of George Parks on the north and by land of James Merritt on 
 the south, containing forty acres more or less, together with the buildings 
 and appurtenances, as the said premises are more fully described in the deed 
 of the same from Arthur Powell and wife to the party of the 'first part 
 hereto, dated July 8th, 1879, and recorded in Queens County Clerk's office. 
 
 And the said party of the second part, in consideration of the sum of ten 
 dollars duly paid by the party of the first part to the second part, the 
 receipt whereof is hereby aclmowledged and also of the conveyance of the 
 property and the consideration first above mentioned in exchange, and for 
 the further consideration of eight thousand dollars in cash to be paid by the 
 party of the first part at the time of the delivery of the deeds hereinafter 
 mentioned, doth likewise agree on his part, to give and grant unto the said 
 party of the first part all that lot, piece or parcel of land with the buildings 
 thereon, situate in the Ninth Ward of the City of New York, known as No. 
 1046 Charles st, beginning on the northerly side of Charles street, etc., etc. 
 
 The parties to these presents mutually agree to execute, acknowledge and 
 deliver, each to the other, or to their assigns, and at their own proper cost 
 and expense, a proper deed or deeds for the conveying and assuring, each to 
 the other, the fee simple of the property of each, above described, free from 
 all encumbrances, of any name or nature whatever, except that the property 
 on Charles street, New York City, is subject to a mortgage of $6,000 which 
 the said John Doe shall assume and agree to pay, and which deeds shall be 
 delivered and exchanged on the 14th day December, 1836, at 12 o'clock noon, 
 at the office of Mr. Geo. W. Van Siclen, No. 146 Broadway, New York City. 
 Each party hereto shall assume the risk of loss or damage by fire to his own 
 premises hereby agreed to be exchanged by him, prior to the completion of 
 this contract. Fifteen days' rent of the Charles street property, viz. : one 
 hundred and twenty dollars, shall be allowed to the party of the first part 
 for the balance of the month of November, 1885. And it is hereby further 
 agreed that in case either party hereto shall fail to carry out his part of this 
 agreement the party so failing shall pay to the other party the sum of 
 three hundred dollars as and for liquidated damages for such failure. 
 And each party hereto respectively agrees to forthwith deliver to the other 
 his abstract of title and official searches that he obtained at the time he 
 became owner of his said premises. 
 
 And it is understood that the stipulations aforesaid are to apply to and 
 bind the heirs, executors, administrators and assigns of the respective 
 parties. In witness whereof, etc. 
 
 [Acknowledgments]. 
 
iitsriD :e 
 
 PAGE 
 
 Abstract 7 
 
 Administrators and heirs bound 60 
 
 After contract signed, Premises 
 
 damaged 44 
 
 Agent's fraud, damages against seller 37 
 
 Agency, Assumed 21 
 
 Agent's oral authority 21 
 
 Agent's signature 21 
 
 " Agrees to sell," not " Sells " 43 
 
 Allowance for deficiency in quantity. 25 
 
 Alteration 39 
 
 Apportionment of rents (Note) 61 
 
 Assigneeof contract 20 
 
 Assignment of contract 50 
 
 Assumed agency 21 
 
 Assumption of interest not assump- 
 tion of principal 46 
 
 Assumption of mortgage 45 
 
 Assurance, Covenant of further 32 
 
 Auctioneer 21 
 
 Authority, Oral, of agent 21 
 
 Bargain and sale deed 31 
 
 Bill 7 
 
 Boundaries, Pointing out 
 
 Breach of contract, damages 
 
 Buyer cannot dispute encumbrances . 
 Buyer cannot get back " earnest " . . 
 
 Buyer's lien 
 
 Buyer must agree to buy 
 
 Buyer not a tenant 
 
 By-bidding 
 
 Cancellation of contract 
 
 Cancellation of deed 
 
 Consideration 
 
 Contract by letter 
 
 Contract, Damages for breach of 
 
 Contract may exist after deed 
 
 Contract must be written 
 
 Contract, Oral, when good 
 
 Contract, Recording 
 
 Contracts, Short 
 
 Contract sometimes mortgage 
 
 Contract, what it is 
 
 Copy of abstract 
 
 Corporation mortgage 
 
 Corporation signature 
 
 Corporation, Signature by trustee of 
 
 Covenant against encumbrances 
 
 Covenant for quiet enjoyment 
 
 Covenant of further assurance 
 
 Covenant of right to convey 
 
 Covenant of seisin 
 
 Covenant of warranty 
 
 Curtesy 
 
 Damage to premises after contract 
 ~ signed 
 
 PAGE 
 
 Damages against seller, agent's fraud 37 
 
 Damages for breaking contract 37 
 
 Damages liquidated 38 
 
 Damages, Seller's 37 
 
 Date 19 
 
 Deed 30 
 
 Deed, Bargain and sale 31 
 
 Deed, Executor's 31 
 
 Deed, Full covenant warrantee 31 
 
 Deed, not contract, gives title 33 
 
 Deed, Quit claim 31 
 
 Deed, Tender of 33 
 
 Deficiency in quantity, Allowance for 25 
 
 Delivery of possession 50 
 
 Description , 24, 26 
 
 Destroying deed does not put title 
 
 back 19 
 
 Division fences 30 
 
 Dower 23 
 
 Dower, Inchoate 32 
 
 Dower, none in contract 19 
 
 Earnest money cannot be recovered 36 
 
 Encumbrances 42 
 
 Encumbrances, Buyer cannot dis- 
 pute 42 
 
 Encumbrances, Covenant against. . . 32 
 
 Escrow 19 
 
 Examine title 4 
 
 Exchange of premises 49 
 
 Executor's deed 31 
 
 Existence of contract after deed 43 
 
 Fees 6 
 
 Fences, Division 30 
 
 Finally 61 
 
 Fixtures 40 
 
 Form of contract 52 
 
 Fraud by agent, damages against 
 
 seller 37 
 
 Fraud, purchaser's remedies 39 
 
 Fraud, Eef ormation for 39 
 
 Full covenant warrantee deed 31 
 
 Further assurance, Covenant of 32 
 
 Good title implied 40 
 
 Heirs and administrators bound 60 
 
 Husband to join 22 
 
 Implied, Good title 40 
 
 Implied warranty, None but of title. 42 
 
 Inchoate right of dower 32 
 
 Infant seller 19 
 
 Insurable interest 45 
 
 Interest on purchase money mort- 
 gage 44 
 
 Interest on the price 45 
 
 Iron-clad mortgage 46 
 
 Judgments 7 
 
 Land, what it means 25 
 
INDEX. 
 
 PAGK 
 
 47 
 
 Letters may make contract 18 
 
 Lienofbuyer 36 
 
 Idenofvendor 86 
 
 Liquidated damages 38 
 
 Lunatic 21 
 
 Mistake, Reformation for 39 
 
 Mortgage assumed 45 
 
 Mortgage by corporation buying ... 46 
 
 Mortgage, Contract sometimes is ... . 43 
 Mortgage, Interest on purchase 
 
 money 44 
 
 Mortgage, Iron-clad 46 
 
 Mortgage, Purchase money 46 
 
 Mortgage with full agreements 46 
 
 Mortgages 45 
 
 Multiplication of fees 6 
 
 No implied warranty except title — 43 
 
 Notice from possession of premises . 29 
 
 Oral authority of agent 21 
 
 Oral contract, when good 18 
 
 "Oral"not "verbal" 46 
 
 Owner, Pretended 22 
 
 Owner, Real 44 
 
 Parties 19 
 
 Party a lunatic 21 
 
 Partywalls 30 
 
 Passing of title, When 33 
 
 Payment 44 
 
 Performance, Specific 89 
 
 Performance, Specific, Title 40 
 
 Performance, Time of 32 
 
 Pointing out boundaries 25 
 
 Possession, Delivery of 60 
 
 Possession of premises is notice .... 29 
 
 Possession of wild land 29 
 
 Premises damaged after contract 
 
 signed 44 
 
 Pretended owner 22 
 
 Purchase money mortgage 46 
 
 Purchase money mortgage, Interest 
 
 on 44 
 
 Purchaser not a tenant 50 
 
 Purchaser's remedies for fraud 39 
 
 Quantity, Allowance for deficiency in 25 
 
 Quiet enjoyment, Covenant of 82 
 
 Quit claim deed 81 
 
 Real owner 44 
 
 Recording contract 35 
 
 Referee must pay taxes 20 
 
 Beferees 20 
 
 Reform 200 years ago 15 
 
 Reformation for fraud or mistake. . . 39 
 Remedies of purchaser for fraud.... 39 
 
 Rents 45 
 
 Rents, Apportionment of (Note) 51 
 
 Repairs 42 
 
 Rescission 88 
 
 Right system of recording. 10 
 
 Right to convey, Covenant of II 
 
 Seal 33 
 
 Seisin, Covenant of 31 
 
 Seller, Damages against, for agent's 
 
 fraud 87 
 
 Seller's damages 37 
 
 Seller'slien 86 
 
 Short contracts of sale 47 
 
 Signature by agent 21 
 
 Signature by corporation 47 
 
 Signature by trustee 22 
 
 Signature by trustee of corporation. 22 
 
 Signatures 35 
 
 Specific performance 39 
 
 Specific performance, Title 40 
 
 Subscribing witness S3 
 
 System of recording 8 
 
 Take time 3 
 
 Taxes 29 
 
 Tax search 8 
 
 Tenant, Buyernotone 36 
 
 Tender of deed 38 
 
 Time 44 
 
 Time of Performance 32 
 
 Thirty days time 17 
 
 Title SO 
 
 Title, Deed, not contract, gives 33 
 
 Title good, Implied 40 
 
 Title passes, When 38 
 
 Title reform 200 years ago 15 
 
 Title, Specific performance 40 
 
 To bind heirs and administrators 50 
 
 Trustee of corporation, Signature by 22 
 
 Trustee's signature 22 
 
 Varieties of contract 50 
 
 Vendor's lien 86 
 
 "Verbal," "Oral" 46 
 
 Walls.Party 30 
 
 Warrantee deed 31 
 
 Warranty, Covenant of 32 
 
 Warranty, None implied except title 42 
 
 What a contract is IS 
 
 When oral contract good 18 
 
 When title passes 33 
 
 Wife no dower in contract 19 
 
 Wild land, Possession of 29 
 
 Will 47 
 
 Witness, Subscribing 33 
 
 Written contract 18 
 
 Wrong system of recording S 
 
THE REAL PROPERTY LAW. 
 
AN ACT 
 
 Relating to real property, constituting chapter 
 forty-six of the general laws. 
 
 The People of the State of New York, represented in Senate 
 and Assembly, do enact as follows : 
 
 CHAPTER XLVI OF THE GENERAL LAWS. 
 
 The Real Property Law. 
 
 Article 1. Tenure of real property. (§§ 1-9.) 
 
 2. Creation and division of estates. (§§ 20-56.) 
 
 3. Uses and trusts. (§§ 70-93.) 
 
 4. Powers. (§§110-163.) 
 
 5. Dower. (§§170-187.) 
 
 6. Landlord and tenant. (§§ 190-202.) 
 
 7. Conveyances and mortgages. (§§ 205-234.) 
 
 8. Recording instruments affecting real property. (§§ 240- 
 
 277.) 
 
 9. Descent of real property. (§§ 280-296.) 
 
 10. Laws repealed; when to take effect. (§§300-301.) 
 
 ARTICLE I. 
 TENURE OF REAL PROPERTY. 
 
 Section 1. Short title; definitions; effect. 
 
 2. Capacity to hold real property. 
 
 3. Capacity to transfer real property. 
 
 4. Deposition of resident alien. 
 
 5. When and how alien may acquire and transfer real 
 
 property. 
 
 6. Effect of marriage with alien. 
 
 7. Title through alien. 
 
 8. Liabilities of alien holders of real property. 
 
 9. Heirs of patriotic Indian. 
 
60 THE REAL PROPERTY LAW. 
 
 § 1. Short title; definitions; effect. 
 
 This chapter shall be known as the real property law. The 
 terms "real property" and "lands" as used In this chapter are 
 coextensive in meaning with lands, tenements and heredita- 
 ments. This chapter does not alter or impair any vested estate, 
 interest or right, nor alter or affect the construction of any 
 conveyance, will or other instrument which has taken effect at 
 any time before this chapter becomes a law. 
 § 2. Capacity to hold real property. 
 
 A citizen of the United States is capable of holding real prop- 
 erty within this state, and of taking the same by descent, devise 
 or purchase. 
 § 3. Capacity to transfer real property. 
 
 A person other than a minor, an Idiot, or person of unsound 
 mind, seized of or entitled to an estate or interest in real prop- 
 erty, may transfer such estate or interest. 
 § 4. Deposition of resident alien. 
 
 An alien who, pursuant to* the laws of the United States, has 
 declared his intention of becoming a citizen, and who is, and 
 intends to remain, a resident thereof, may make a written depo- 
 sition to such facts, before any officer authorized to take the 
 acknowledgment or proof of deeds to entitle them to be re- 
 corded within the state. Such deposition must be certified by 
 the officer before whom it is made, and may be filed in the office 
 of the secretary of state and when so filed, must be recorded by 
 him in a book kept for that purpose. 
 
 Such deposition shall be presumptive evidence of the facts 
 therein contained. 
 
 § 5. When and how alien may acquire and transfer real prop- 
 erty. 
 An alien may, for a term of six years after filing the depo- 
 sition described in the last preceding section, take, hold, convey 
 and devise real property. If such deposition be filed, or such 
 alien be admitted to citizenship, a grant, devise, contract or 
 mortgage theretofore made to or by him is as valid and effectual 
 as if made thereafter; provided, however, that a devise to an 
 alien shall not be 'valid unless a deposition be filed by him, or 
 he be admitted to citizenship, within one year after the death of 
 the testator, or if the devisee is a minor, within one year after 
 his majority. If a person who has filed such a deposition dies 
 within six years thereafter, and before he is admitted to citizen- 
 ship, his widow is entitled to dower in his real property, and If 
 he dies intestate, his heirs or the persons who would otherwise 
 answer to the description of heirs, inherit his real property, upon 
 such persons being admitted to citizenship, or filing a deposition 
 
THE REAL PROPERTY LAW. 61 
 
 in their own behalf, within one year after such death, or if 
 minors, within one year after their majority. If an action or 
 proceeding is commenced by the state to recover real property 
 held by an alien, such action or proceeding shall be suspended 
 upon the filing of such deposition, and the service of a certified 
 copy thereof upon the attorney-general, and the payment of the 
 costs to the time of such service. 
 § 6. Effect of marriage with alien. 
 
 A woman who, being a citizen of the United States, marries 
 an alien not entitled to hold real property in this state, may, 
 notwithstanding such marriage, take by grant, will or descent, 
 and hold, convey and devise real property within this state; and 
 the descendants of such a woman who dies intestate, inherit her 
 real property within this state, and any real property which she 
 would have been entitled to take, by descent, if living; and such 
 descendants may take real property by grant or devise from 
 their mother or from any citizen to whom she would be an heir, 
 may hold real property acquired under this section, and may 
 convey and devise it to any person capable of holding the same. 
 
 § 7. Title through alien. 
 
 The right, title or interest in or to real property in this state of 
 any person entitled to hold the same can not be questioned or 
 impeached by reason of the alienage of any person through 
 whom such title may have been derived. Nothing in this sec- 
 tion affects or impairs the right of any heir, devisee, mortgagee, 
 or creditor by judgment or otherwise. 
 § 8. Liabilities of alien holders of real property. 
 
 Every alien holding real property in this state is subject to 
 duties, assessments, taxes and burdens as if he were a citizen of 
 the state. 
 § 9. Heirs of patriotic Indian. 
 
 The heirs of an Indian to whom real property was granted for 
 military services rendered during the war of the revolution may 
 take and hold such real property by descent as if they were citi- 
 zens of the state at the time of the death of their ancestors. A 
 conveyance of such real property to a citizen of this state, exe- 
 cuted by such Indian or his heirs after March seventh, eighteen 
 hundred and nine, is valid, if executed with the approval of the 
 surveyor-general or state engineer and surveyor, indorsed there- 
 upon. 
 
ARTICLE II. 
 CREATION AND DIVISION OF ESTATES. 
 
 Section 20. Enumeration of estates. 
 
 21. Estate in fee simple and fee simple absolute. 
 
 22. Estates tail abolished; remainders thereon. 
 
 23. Freeholds; chattels real; chattel interests. 
 
 24. When estate for life of third person is freehold; 
 
 when chattel real. 
 
 25. Estates in possession and expectancy. 
 
 26. Enumeration of estates in expectancy. 
 
 27. Definition of future estates. 
 
 28. Definition of remainder. 
 
 29. Definition of reversion. 
 
 30. When future estates are vested; when contingent. 
 
 31. Power of appointment not to prevent vesting. 
 
 32. Suspension of power of alienation. 
 
 33. Limitation of successive estates for life. 
 
 34. Remainders on estates for life of third person. 
 
 35. When remainder to take effect if estate be for lives 
 
 of more than two persons. 
 
 36. Contingent remainder on term of years. 
 
 37. Estate for life as remainder on term of years. 
 
 38. Meaning of heirs and issue in certain remainders. 
 
 39. Limitations of chattels real. 
 
 40. Creation of future and contingent estates. 
 
 41. Future estates in the alternative. 
 
 42. Future estates valid though contingency improbable. 
 
 43. Conditional limitations. 
 
 44. When heirs of life tenants take as purchasers. 
 
 45. When remainder not limited on contingency de- 
 
 feating precedent estate takes effect. 
 
 46. Posthumous children. 
 
 47. When expectant estates are defeated. 
 
 48. Effect on valid remainders of determination of 
 
 precedent estate before contingency. 
 
 49. Qualities of expectant estates. 
 
 50. Dispositions of rents and profits. 
 
 51. Accumulations. 
 
 52. Anticipation of directed accumulation. 
 
 53. Undisposed of profits. 
 
 54. When expectant estates are deemed created. 
 
 55. Estates in severalty, joint tenancy and in common. 
 
 56. When estate in common; when in joint tenancy. 
 
THE REAL PROPERTY LAW. 63 
 
 § 20. Enumeration of estates. 
 
 Estates in real property are divided into estates of inheritance, 
 estates for life, estates for years, estates at will, and by suf- 
 ferance. 
 
 § 21. Estates in fee simple and fee simple absolute. 
 
 An estate of inheritance continues to be termed a fee simple, 
 or fee, and, when not defeasible or conditional, a fee simple 
 absolute, or an absolute fee. 
 
 § 22. Estates tail abolished; remainders thereon. 
 
 Estates tail have been abolished; and every estate which 
 would be adjudged a fee tail, according to the law of this state, 
 as it existed before the twelfth day of July, seventeen hundred 
 and eighty-two, shall be deemed a fee simple; and if no valid 
 remainder be limited thereon, a fee simple absolute. Where a 
 remainder in fee shall be limited on any estate which would be 
 a fee tail, according to the law of this state, as it existed pre- 
 vious to such date, such remainder shall be valid, as a contin- 
 gent limitation on a fee, and shall vest in possession on the 
 death of the first taker, without issue living at the time of such 
 death. 
 
 § 23. Freeholds; chattels real; chattel interests. 
 
 Estates of inheritance and for life shall continue to be termed 
 estates of freehold; estates for years are chattels real; and es- 
 tates at will or by sufferance continue to be chattel Interests, 
 but not liable as such to sale on execution. 
 
 § 24. When estate for life of third person is freehold, when 
 chattel real. 
 An estate for the life of a third person, whether limited to 
 heirs or otherwise, shall be deemed a freehold only during the 
 life of the grantee or devisee; after his death it shall be deemed 
 a chattel real. 
 
 § 25. Estates in possession and expectancy. 
 
 Estates, as respects the time of their enjoyment, are divided 
 into estates in possession, and estates in expectancy. An estate 
 which entitles the owner to immediate possession of the prop- 
 erty, is an estate in possession. An estate, in which the right 
 of possession is postponed to a future time, is an estate in ex- 
 pectancy. 
 
 S 26. Enumeration of estates in expectancy. 
 
 All expectant estates, except such as are enumerated and de- 
 fined in this article, have been abolished. Estates in expectancy 
 are divided into, 
 
 5 
 
64 THE REAL PROPERTY LAW. 
 
 1. Future estates; and 
 
 2. Reversions. 
 
 § 27. Definition of future estates. 
 
 A future estate, is an estate limited to commence in possession 
 at a future day, either without the intervention of a precedent 
 estate, or on the determination, by lapse of time or otherwise, 
 of a precedent estate created at the same time. 
 § 28. Definition, remainder. 
 
 When a future estate is dependent on a precedent estate, it 
 may be termed a remainder, and may be created and transferred 
 by that name. 
 § 29. Definition, reversion. 
 
 A reversion is the residue of an estate left in the grantor or 
 his heirs, or in the heirs of a testator, commencing in possession 
 on the determination of a particular estate granted or devised. 
 
 § 30. When future estates are vested; when contingent 
 
 A future estate is either vested or contingent. It is vested, 
 when there is a person in being, who would have an immediate 
 right to the possession of the property, on the determination of 
 all the intermediate or precedent estates. It is contingent while 
 the person to whom or the event on which it is limited to take 
 effect remains uncertain. 
 § 31. Power of appointment not to prevent vesting. 
 
 The existence of an unexecuted power of appointment does 
 not prevent the vesting of a future estate, limited in default of 
 the execution of the power. 
 
 § 32. Suspension of power of alienation. 
 
 The absolute power of alienation is suspended, when there are 
 no persons in being by whom an absolute fee in possession can 
 be conveyed. Every future estate shall be void in its creation, 
 which shall suspend the absolute power of alienation, by any 
 limitation or condition whatever, for a longer period than during 
 the continuance of not more than two lives in being at the crea- 
 tion of the estate; except that a contingent remainder in fee 
 may be created on a prior remainder in fee, to take effect in the 
 event that the persons to whom the first remainder Is limited, 
 die under the age of twenty-one years, or on any other contin- 
 gency by which the estate of such persons may be determined 
 before they attain full age. For the purposes of this section a 
 minority is deemed a part of a life and not an absolute term 
 equal to the possible duration of such minority. 
 § 33. Limitation of successive estates for life. 
 
 Successive estates for life shall not be limited, except to per- 
 
THE REAL PROPERTY LAW. 65 
 
 sons in being at the creation thereof; and where a remainder 
 shall be limited on more than two successive estates for life, all 
 the life estates subsequent to those of the two persons first en- 
 titled thereto, shall be void, and on the death of those persons, 
 the remainder shall take effect, In the same manner as if no 
 other life estates had been created. 
 § 34. Remainders on estates for life of third person. 
 
 A remainder shall not be created on an estate for the life of 
 any other person than the grantee or devisee of such estate, un- 
 less such remainder be in fee; nor shall a remainder be created 
 on such an estate in a term of years, unless it be for the whole 
 residue of such term. 
 
 § 35. When remainders to take effect if estate be for lives of 
 more than two persons. 
 
 When a remainder is created on any such life estate, and more 
 than two persons are named as the persons during whose lives 
 the life estate shall continue, the remainder shall take effect on 
 the death of the two persons first named, as if no other lives had 
 been introduced. 
 
 § 36. Contingent remainder on term of years. 
 
 A contingent remainder shall not be created on a term of 
 years, unless the nature of the contingency on which it is lim- 
 ited be such that the remainder must vest in interest, during the 
 continuance of not more than two lives in being at the creation 
 of such remainder, or on the termination thereof. 
 § 37. Estate for life as remainder on term of years. 
 
 No estate for life shall be limited as a remainder on a term of 
 years, except to a person in being at the creation of such estate. 
 § 38. Meaning of heirs and issue in certain remainders. 
 
 Where a remainder shall be limited to take effect on the death 
 of any person without heirs, or heirs of his body, or without 
 issue, the words "heirs" or "issue," shall be construed to mean 
 heirs or issue, living at the death of the person named as an- 
 cestor. 
 
 § 39. Limitations of chattels real. 
 
 All the provisions contained in this article, relative to future 
 estates, apply to limitations of chattels real, as well as of free- 
 hold estates, so that the absolute ownership of a term of years 
 shall not be suspended for a longer period than the absolute 
 power of alienation can be suspended in respect to a fee. 
 § 40. Creation of future and contingent estates. 
 
 Subject to the provisions of this article, a freehold estate as 
 well as a chattel real may be created to commence at a future 
 day; an estate for life may be created in a term of years, and a 
 
66 THE REAL PROPERTY LAW. 
 
 remainder limited thereon; a remainder of a freehold or chattel 
 real, either contingent or Tested, may be created expectant on 
 the determination of a term of years; and a fee or other less 
 estate, may be limited on a fee, on a contingency 'which, if it 
 should occur, must happen within the period prescribed in this 
 article. 
 
 § 41. Future estates in the alternative. 
 
 Two or more future estates may be created to take effect In 
 the alternative, so that if the first in order fails to vest, the next 
 in succession shall be substituted for it, and take effect accord- 
 ingly. 
 8 42. Future estate valid though contingency improbable. 
 
 A future estate, otherwise valid, shall not be void on the 
 ground of the improbability of the contingency on which it is 
 limited to take effect. 
 § 43. Conditional limitations. 
 
 A remainder may be limited on a contingency, which, if it 
 happens, will operate to abridge or determine the precedent es- 
 tate; and every such remainder shall be a conditional limitation. 
 § 44. When heirs of life tenant take as purchasers. 
 
 Where a remainder shall be limited to the heirs, or heirs of 
 the body, of a person to whom a life estate in the same premises 
 is given, the persons who, on the termination of the life estate, 
 are the heirs, or heirs of the body, of such tenant for life, shall 
 take as purchasers, by virtue of the remainder so limited to 
 them. 
 
 § 45. When remainder not limited on contingency defeating 
 precedent estate, takes effect. 
 
 When a remainder on an estate for life or for years is not lim- 
 ited on the contingency defeating or avoiding such precedent es- 
 tate, it shall be construed as intended to take effect, only on the 
 death of the first taker, or the expiration by lapse of time of 
 such term of years. 
 § 46. Posthumous children. 
 
 Where a future estate is limited to heirs, or Issue, or children, 
 posthumous children shall be entitled to take in the same man- 
 ner as if living at the death of their parents; and a future es- 
 tate, dependent on the contingency of the death of any person 
 without heirs, or issue, or children, shall be defeated by the 
 birth of a posthumous child of such person, capable of taking by 
 descent. 
 § 47. When expectant estates are defeated. 
 
 An expectant estate can not be defeated or barred by any 
 transfer or other act of the owner of the intermediate or pre- 
 
THE REAL PROPERTY LAW. 67 
 
 cedent estate, nor by any destruction of such precedent estate 
 by disseizin, forfeiture, surrender, merger or otherwise; but an 
 expectant estate may be defeated in any manner, or by any act 
 or means which the party creating such estate, in the creation 
 thereof, has provided for or authorized. An expectant estate 
 thus liable to be defeated shall not, on that ground, be adjudged 
 void in its creation. 
 
 § 48. Effect on valid remainders of determination of precedent 
 estate before contingency. 
 A remainder valid in its creation shall not be defeated by the 
 determination of the precedent estate, before the happening of 
 the contingency on which the remainder was limited to take ef- 
 fect; should such contingency afterwards happen the remainder 
 shall take effect in the same manner and to the same extent as 
 if the precedent estate had continued to the same period. 
 
 § 49. Qualities of expectant estates. 
 
 An expectant estate is descendible, devisable and alienable, in 
 the same manner as an estate in possession. 
 
 § 50. Dispositions of rents and profits. 
 
 A disposition of the rents and profits of real property to ac- 
 crue and be received at any time subsequent to the execution of 
 the instrument creating such disposition, shall be governed by 
 the rules established in this article, for future estates in real 
 property. 
 
 8 51. Accumulations. 
 
 All directions for the accumulation of the rents and profits of 
 real property, except such as are allowed by statute, shall be 
 void. An accumulation of rents and profits of real property, for 
 the benefit of one or more persons, may be directed by any will 
 or deed sufficient to pass real property as follows: 
 
 1. If such accumulation be directed to commence on the cre- 
 ation of the estate out of which the rents and profits are to 
 arise, it must be made for the benefit of one or more minors 
 then in being, and terminate at or before the expiration of their 
 minority. 
 
 2. If such accumulation be directed to commence at any time 
 subsequent to the creation of the estate out of which the rents 
 and profits are to arise, it must commence within the time per- 
 mitted, by the provisions of this article, for the vesting of future 
 estates, and during the minority of the beneficiaries, and shall 
 terminate at or before the expiration of such minority. 
 
 3. If in either case such direction be for a longer term than 
 during the minority of the beneficiaries it shall be void only as 
 to the time beyond such minority. 
 
68 THE REAL PROPERTY LAW. 
 
 § 52. Anticipation of directed, accumulation. 
 
 Where such rents and profits are directed to be accumulated 
 for the benefit of a minor entitled to the expectant estate, and 
 such minor is destitute of other sufficient means of support and 
 education, the supreme court, at a special term, or, if such ac- 
 cumulation has been directed by will, the surrogate's court of 
 the county in which such will has been admitted to probate, 
 may, on the application of his general guardian, direct a suita- 
 ble sum out of such rents and profits to be applied to his main- 
 tenance or education. 
 
 § 53. Undisposed profits. 
 
 When, in consequence of a valid limitation of an expectant 
 estate, there is a suspension of the power of alienation, or of 
 the ownership, during the continuance of which the rents and 
 profits are undisposed of, and no valid direction for their ac- 
 cumulation is given, such rents and profits shall belong to the 
 persons presumptively entitled to the next eventual estate. 
 § 54. When expectant estates are deemed created. 
 
 Where an expectant estate is created by grant, the delivery of 
 the grant, and, where it is created by devise, the death of the 
 testator, shall be deemed the time of the creation of the estate. 
 § 55. Estates in severalty, joint tenancy and in common. 
 
 Estates in respect to the number and connection of their 
 owners, are divided into estates in severalty, in joint tenancy 
 and in common; the nature and properties of which respectively, 
 shall continue to be such as are now established by law, except 
 so far as the same may be modified by the provisions of this 
 chapter. 
 
 § 56. When estate in common; when in join tenancy. 
 
 Every estate granted or devised to two or more persons in 
 their own right, shall be a tenancy in common, unless expressly 
 declared to be in joint tenancy; but every estate vested in execu- 
 tors or trustees as such, shall be held by them in joint tenancy. 
 This section shall apply as well to estates already created or 
 vested as to estates hereafter granted or devised. 
 
ARTICLE III. 
 
 USES AND TRUSTS. 
 
 Section 70. Executed uses existing. 
 
 71. Certain uses and trusts abolished. 
 
 72. When right to possession creates legal ownership. 
 
 73. Trustees of passive trust not to take. 
 
 74. Grant to one where consideration paid by another. 
 
 75. Bona fide purchasers protected. 
 
 76. Purposes for which express trusts may be created. 
 
 77. Certain devises to be deemed powers. 
 
 78. Surplus income of trust property liable to creditors. 
 
 79. When an authorized trust is valid as a power. 
 
 80. Trustee of express trust to have whole estate. 
 
 81. Qualification of last section. 
 
 82. Interest remaining in grantor of express trust. 
 
 83. What trust interest may be aliened. 
 
 84. Transferee of trust property protected. 
 
 85. When trustee may convey trust property. 
 
 86. When trustee may lease trust property. 
 
 87. Notice to beneficiary where trust property Is con- 
 
 veyed, mortgaged or leased. 
 
 88. Person paying money to trustee protected. 
 
 89. When estate of trustee ceases. 
 
 90. Termination of trusts for the benefit of creditors. 
 
 91. Trust estate not to descend. 
 
 92. Resignation or removal of trustee and appointment 
 
 of successor. 
 
 93. Grants and devises of real property for charitable 
 
 purposes. 
 
70 THE REAL PROPERTY LAW. 
 
 § 70. Executed uses existing. 
 
 Every estate which is now held as a use, executed under any 
 former statute of the state, is confirmed as a legal estate. 
 
 § 71. Certain uses and trusts abolished. 
 
 Uses and trusts concerning real property-, except as authorized 
 and modified by this article, have been abolished; every estate 
 or interest In real property is deemed a legal right, cognizable 
 as such in the courts, except as otherwise prescribed in this 
 chapter. 
 
 § 72. When right to possession creates legal ownership. 
 
 Every person, who, by virtue of any grant, assignment or de- 
 vise, is entitled both to the actual possession of real property, 
 and to the receipt of the rents and profits thereof, in law or 
 equity, shall be deemed to have a legal estate therein, of the 
 same quality and duration, and subject to the same conditions, 
 as his beneficial interest; but this section does not divest the es- 
 tate of the trustee in any trust existing on the first day of Jan- 
 uary, eighteen hundred and thirty, where the title of such trus- 
 tee is not merely nominal, but is connected with some power of 
 actual disposition or management in relation to the real prop- 
 erty which is the subject of the trust. 
 
 § 73. Trustee of passive trust not to take. 
 
 Every disposition of real property, whether by deed or by devise, 
 shall be made directly to the person in whom the right to the pos- 
 session and profits is intended to be vested, and not to another to 
 the use of, or in trust for, such person; and if made to any per- 
 son to the use of, or in trust for another, no estate or interest, 
 legal or equitable, vests in the trustee. But neither this section 
 nor the preceding sections of this article shall extend to trusts 
 arising, or resulting by implication of law, nor prevent or affect 
 the creation of such express trusts as are authorized and de- 
 fined in this chapter. 
 
 § 74. Grant to one where consideration paid by another. 
 
 A grant of real property for a valuable consideration, to one 
 person, the consideration being paid by another, is pre- 
 sumed fraudulent as against the creditors, at that time, of the 
 person paying the consideration, and, unless a fraudulent intent 
 is disproved, a trust results in favor of such creditors, to an ex- 
 tent necessary to satisfy their just demands; but the title vests 
 in the grantee, and no use or trust results from the payment, to 
 the person paying the consideration, or in his favor, unless the 
 grantee either, 
 
 1. Takes the same as an absolute conveyance, in his own 
 name, without the consent or knowledge of the person paying 
 the consideration, or, 
 
THE REAL PROPERTY LAW. 71 
 
 2. In violation of some trust, purchases the property so con- 
 veyed with money or property belonging to another. 
 § 75. Bona fide purchasers protected. 
 
 An implied or resulting trust shall not be alleged or estab- 
 lished, to defeat or prejudice the title of a purchaser for a valu- 
 able consideration without notice of the trust. 
 
 § 76. Purposes for which express trusts may be created. 
 
 An express trust may be created for one or more of the follow- 
 ing purposes: 
 
 1. To sell real property for the benefit of creditors; 
 
 2. To sell, mortgage or lease real property for the benefit of 
 annuitants or other legatees, or for the purpose of satisfying any 
 charge thereon; 
 
 3. To receive the rents and profits of real property, and apply 
 them to the use of any person, during the life of that person, or 
 for any shorter term, subject to the provisions of law relating 
 thereto; 
 
 4. To receive the rents and profits of real property, and to 
 accumulate the same for the purposes, and within the limits, 
 prescribed by law. 
 
 § 77. Certain devises to be deemed powers. 
 
 A devise of real property to an executor or other trustee, for 
 the purpose of sale or mortgage, where the trustee is not also 
 empowered to receive the rents and profits, shall not vest any 
 estate in him; but the trust shall be valid as a power, and the 
 real property shall descend to the heirs, or pass to the devisees 
 of the testator, subject to the execution of the power. 
 
 § 78. Surplus income of trust property liable to creditors. 
 
 Where a trust is created to receive the rents and profits of 
 real property, and no valid direction for accumulation is given, 
 the surplus of such rents and profits, beyond the sum necessary 
 for the education and support of the beneficiary, shall be liable 
 to the claims of his creditors in the same manner as other per- 
 sonal property, which can not be reached by execution. 
 § 79. When an authorized trust is valid as a power. 
 
 Where an express trust relating to real property is created for 
 any purpose not specified in the preceding sections of this ar- 
 ticle, no estate shall vest in the trustees; but the trust, if direct- 
 ing or authorizing the performance of any act which may be 
 lawfully performed under a power, shall be valid as a power in 
 trust, subject to the provisions of this chapter. 
 
 Where a trust is valid as a power, the real property to which 
 the trust relates shall remain in or descend to the persons other- 
 wise entitled, subject to the execution of the trust as a power. 
 
72 THE REAL PROPERTY LAW. 
 
 § 80. Trustee of express trust to have whole estate. 
 
 Except as otherwise prescribed in this chapter, an express 
 trust, valid as such in its creation, shall vest in the trustee the 
 legal estate, subject only to the execution of the trust, and the 
 beneficiary shall not take any legal estate or interest in the prop- 
 erty, but may enforce the performance of the trust. 
 
 § 81. Qualification of last section. 
 
 The last section shall not prevent any person, creating a 
 trust, from declaring to whom the real property, to which the 
 trust relates, shall belong, in the event of the failure or termina- 
 tion of the trust, or from granting or devising the property, sub- 
 ject to the execution of the trust. Such a grantee or devisee 
 shall have a legal estate in the property, as against all persons, 
 except the trustees, and those lawfully claiming under him. 
 
 § 82. Interest remaining in grantor of express trust. 
 
 Where an express trust is created, every legal estate and in- 
 terest not embraced in the trust, and not otherwise disposed of, 
 shall remain in or revert to, the person creating the trust or his 
 heirs. 
 § 83. What trust interest may be alienated. 
 
 The right of a beneficiary of an express trust to receive rents 
 and profits of real property, and apply them to the use of any 
 person, can not be transferred by assignment or otherwise; but 
 the right and interest of the beneficiary of any other trust may 
 be transferred. Whenever a beneficiary in a trust for the receipt 
 of the rents and profits of real property is entitled to a remain- 
 der in the whole or a part of the principal fund so held in trust 
 subject to his beneficial estate for a life or lives, or a shorter 
 term, he may release his interest in such rents and profits, and 
 thereupon the estate of the trustee shall cease in that part of 
 such principal fund to which such beneficiary has become en- 
 titled in remainder, and such trust estate merges in such re- 
 mainder. 
 
 § 84. Transferee of trust property protected. 
 
 When an express trust is created, but is not contained or de- 
 clared in the conveyance to the trustee, the conveyance shall be 
 deemed absolute as -to the subsequent creditors of the trustee 
 not having notice of the trust, and as to subsequent purchasers 
 from the trustee, without notice and for a valuable considera- 
 tion. 
 
 § 85. When trustee may convey trust property. 
 
 If the trust is expressed in the instrument creating the estate, 
 every sale, conveyance or other act of the trustee, in contraven- 
 tion of the trust, except as provided in this section, shall be 
 
THE REAL PROPERTY LAW. 73 
 
 absolutely void. The supreme court, may, by order, on such 
 terms and conditions as seem just and proper, authorize any 
 such trustee to mortgage or sell such real property, or any part 
 thereof, whenever it appears to the satisfaction of the court 
 that it is for the best interest of such estate, or that it is neces- 
 sary and for the benefit of the estate, to raise funds for the pur- 
 pose of preserving and improving it; and whenever the interest 
 of the trust estate in any real property is an undivided part or 
 share thereof, the same may be sold, if it shall appear to the 
 court to be for the best interest of such estate. 
 
 § 86. When trustee may lease trust property. 
 
 A trustee appointed to hold real property during the life of a 
 beneficiary, and to pay or apply the rents, income and profits 
 thereof to, or for, the use of such beneficiary, may execute and 
 deliver a lease of such real property for a term not exceeding 
 five years, without application to the court. The supreme court 
 may, by order, on such terms and conditions as seem just and 
 proper, in respect to rental and renewals, authorize such a trus- 
 tee to lease such real property for a term exceeding five years, 
 if it appears to the satisfaction of the court that it is for the 
 best interest of the trust estate, and may authorize such trustee 
 to covenant in the lease to pay at the end of the term, or re- 
 newed term, to the lessee the then fair and reasonable value of 
 any building which may have been erected on the premises dur- 
 ing such term. 
 
 If any such trustee has leased any such trust property before 
 June fourth, eighteen hundred and ninety-five, for a longer term 
 than five years, the supreme court, on the application of such 
 trustee, may, by order, confirm sueh lease, and such order, on 
 the entry thereof, shall be binding on all persons interested in 
 the trust estate. 
 
 § 87. Notice to beneficiary where trust property is conveyed, 
 mortgaged or leased. 
 The supreme court shall not grant an order under either of 
 the last two preceding sections, unless it appears to the satisfac- 
 tion of such court that a written notice, stating the time and 
 place of the application therefor, has been served upon the bene- 
 ficiary of such trust property, at least eight days before the 
 making thereof, if such beneficiary is an adult within the state; 
 or if a minor, lunatic, person of unsound mind, habitual drunk- 
 ard or absentee, until proof of the service on such person of such 
 notice as the court, or a justice thereof, prescribes. 
 
 § 88. Person paying money to trustee protected. 
 
 A person who shall actually and in good faith pay a sum of 
 money to a trustee, which the trustee as such is authorized to 
 
74 THE REAL PROPERTY LAW. 
 
 receive, shall not be responsible for the proper application of 
 the money, according to the trust; and any right or title derived 
 by him from the trustee in consideration of the payment shall 
 not be impeached or called in question in consequence of a mis- 
 application by the trustee of the money paid. 
 ^ 89. When estate of trustee ceases. 
 
 When the purpose for which an express trust is created ceases, 
 the estate of the trustee shall also cease, 
 g 90. Termination of trusts for the benefit of creditors. 
 
 Where an estate or interest in real property has heretofore 
 vested or shall hereafter vest in the assignee or other trustee 
 for the benefit of creditors, it shall cease at the expiration of 
 twenty-five years from the time when the trust was created, 
 except where a different limitation is contained in the instru- 
 ment creating the trust, or is especially prescribed by law. The 
 estate or interest remaining in the trustee or trustees shall 
 thereon revert to the assignor, his heirs, devisee or assignee, as 
 If the trust had not been created. 
 
 g 91. Trust estate not to descend. 
 
 On the death of the last surviving or sole trustee of an express 
 trust, the trust estate shall not descend to his heirs nor pass to 
 his next of kin or personal representatives; but in the absence 
 of a contrary direction on the part of the person creating the 
 same, such trust, if unexecuted, shall vest in the supreme court, 
 with all the powers and duties of the original trustee, and shall 
 be executed by some person appointed for that purpose under 
 the direction of the court, who shall not be appointed until the 
 beneficiary thereof shall have been brought into court by such 
 notice in such manner as the court or a justice thereof may 
 direct. 
 
 g 92. Resignation or removal of trustee and appointment of 
 successor. 
 The supreme court has power, subject to the regulations es- 
 tablished for the purpose in the general rules of practice: 
 
 1. On his application by petition or action, to accept the resig- 
 nation of a trustee, and to discharge him from the trust on such 
 terms as are just. 
 
 2. In an action brought, or on a petition presented, by any 
 person interested in the trust, to remove a trustee who has vio- 
 lated or threatens to violate his trust, or who is insolvent, or 
 whose insolvency is apprehended, or who for any other 
 cause shall be deemed to be an unsuitable person to execute the 
 trust. 
 
 3. In case of the resignation or removal of a trustee, to appoint 
 a new trustee in his place, and in the meantime, if there is no 
 
THE REAL PROPERTY LAW. 75 
 
 acting trustee, to cause the trust to be executed by a receiver 
 or other officer under its direction. 
 
 This section shall not apply to a trust arising or resulting by 
 implication of law, nor where other provision is specially made 
 by law, for the resignation or removal of a trustee or the ap- 
 pointment of a new trustee. 
 
 § 93. Grants and devises of real property for charitable pur- 
 poses. 
 A conveyance or devise of real property for religious, educa- 
 tional, charitable or benevolent uses, which is in other respects 
 valid, is not to be deemed invalid by reason of the indefiniteness 
 or uncertainty of the persons designated as the beneficiaries 
 thereunder in the instrument making such conveyance or de- 
 vise. If in such instrument, a trustee is named to execute the 
 same, the legal title to the real property granted or devised shall 
 vest in such trustee. If no person is named as trustee, the 
 title to such real property vests in the supreme court, and such 
 court shall have control thereof. The attorney-general shall 
 represent the beneficiaries in such cases and enforce such trusts 
 by proper proceedings. 
 
ARTICLE IV. 
 
 POWERS. 
 Section 110. Effect of article. 
 
 111. Definition of a power. 
 
 112. Definitions of grantor, grantee. 
 
 113. Division of powers. 
 
 114. General power. 
 
 115. Special power. 
 
 116. Beneficial power. 
 
 117. General power in trust. 
 
 118. Special power in trust. 
 
 119. Capacity to grant a power. 
 
 120. How power may be granted. 
 
 121. Capacity to take and execute a power. 
 
 122. Capacity of married woman to take power. 
 
 123. Capacity to take a special and beneficial power. 
 
 124. Reservation of a power. 
 
 125. Effect of power to revoke. 
 
 126. Power to sell in a mortgage. 
 
 127. When power is a lien. 
 
 128. When power is irrevocable. 
 
 129. When estate for life or years is changed Into a fee. 
 
 130. Certain powers create a fee. 
 
 131. When grantee of power has absolute fee. 
 
 132. Effect of power to devise in certain cases. 
 
 133. When power of disposition absolute. 
 
 134. Power subject to condition. 
 
 135. Power of life tenant to make leases. 
 
 136. Effect of mortgage by grantee. 
 
 137. When a trust power is imperative. 
 
 138. Distribution when more than one beneficiary. 
 
 139. Beneficial power subject to creditors. 
 
 140. Execution of power on death of trustee. 
 
 141. When power devolves on court. 
 
 142. When creditors may compel execution of trust 
 
 power. 
 
 143. Defective execution of trust power. 
 
 144. Effect of insolvent assignment. 
 
THE REAL PROPERTY LAW. 77 
 
 145. How power must be executed. 
 
 146. Execution by survivors. 
 
 147. Execution of power to dispose by devise. 
 
 148. Execution of power to dispose by grant. 
 
 149. When direction by grantor does not render power 
 
 void. 
 
 150. When directions by grantor need not be followed. 
 
 151. Nominal conditions may be disregarded. 
 
 152. Intent of grantor to be observed. 
 
 153. Consent of grantor or third person to execution of 
 
 power. 
 
 154. When all must consent. 
 
 155. Omission to recite power. 
 
 156. When devise operates as an execution of the power. 
 
 157. Disposition not void because too extensive. 
 
 158. Computation of term of suspension. 
 
 159. Capacity to take under a power. 
 
 160. Purchaser under defective execution. 
 
 161. Instrument affected by fraud. 
 
 162. Sections applicable to trust powers. 
 
78 THE HEAL PROPERTY LAW. 
 
 § 110. Effect of article. 
 
 Powers, as they existed by law on the thirty-first day of De- 
 cember, eighteen hundred and twenty-nine, have been abolished. 
 Hereafter the creation, construction and execution of powers, af- 
 fecting real property, shall be subject to the provisions of this 
 article; but this article does not extend to a simple power of at- 
 torney, to convey real property in the name, and for the ben- 
 efit of the owner. 
 
 § 111. Definition of a power. 
 
 A power is an authority to do an act in relation to real 
 property, or to the creation or revocation of an estate therein, 
 or a charge thereon, which the owner, granting or reserving the 
 power, might himself lawfully perform. 
 
 § 112. Definitions of grantor, grantee. 
 
 The word "grantor" is used in this article, in connection with 
 a power, as designating the person by whom the power is 
 created, whether by grant or by devise; and the word "grantee" 
 is so used as designating the person in whom the power is 
 vested, whether by grant, devise or reservation. 
 
 § 113. Division of powers. 
 
 A power, as authorized in this article, is either general or 
 special, and either beneficial or in trust. 
 
 § 114. General power. 
 
 A power is general, where it authorizes the transfer or en- 
 cumbrance of a fee, by either a conveyance or a will of or a 
 charge on the property embraced in the power, to any grantee 
 whatever. 
 
 § 115. Special power. 
 A power is special where either: 
 
 1. The persons or class of persons to whom the disposition of 
 the property under the power is to be made are designated; or, 
 
 2. The power authorizes the transfer or encumbrance, by a 
 conveyance, will or charge, of any estate less than a fee. 
 
 § 116. Beneficial power. 
 
 A general or special power is beneficial, where no person, 
 other than the grantee, has, by the term of its creation, any in- 
 terest in its execution. A beneficial power, general or special, 
 other than one of those specified and defined in this article, is 
 void. 
 
 § 117. General power in trust. 
 A general power is in trust, where any person or class of per- 
 
THE REAL PROPERTY LAW. 79 
 
 sons, other than the grantee of the power, Is designated as en- 
 titled to the proceeds, or any portion of the proceeds, or other 
 benefits to result from its execution. 
 
 § 118. Special power in trust. 
 A special power is in trust, where either: 
 
 1. The disposition or charge which it authorizes is limited to 
 be made to a person or class of persons, other than the grantee 
 of the power; or, 
 
 2. A person or class of persons, other than the grantee, is 
 designated as entitled to any benefit, from the disposition or 
 charge authorized by the power. 
 
 § 119. Capacity to grant a power. 
 
 A person is not capable of granting a power, who is not, at the 
 same time, capable of transferring an interest in the property 
 to which the power relates. 
 § 120. How power may be granted. 
 
 A power may be granted either: 
 
 1. By a suitable clause, contained in an instrument sufficient 
 to pass an estate in the real property, to which the power re- 
 lates; or, 
 
 2. By a devise contained in a will. 
 
 § 121. Capacity to take and execute a power. 
 
 A power may be vested in any person capable in law of hold- 
 ing, but can not be exercised by a person not capable of trans- 
 ferring real property. 
 § 122. Capacity of married woman to take power. 
 
 A general and beneficial power may be given to a married 
 woman, to dispose, during her marriage, and without concur- 
 rence of her husband, of real property conveyed or devised to 
 her in fee. 
 
 | 123. Capacity to take a special and beneficial power. 
 
 A special and beneficial power may be granted: 
 
 1. To a married woman, to dispose, during the marriage, and 
 without the concurrence of her husband, of any estate less than 
 a fee, belonging to her, in the property to which the power re- 
 lates; or, 
 
 2. To a tenant for life, of the real property embraced in the 
 power, to make leases for not more than twenty-one years, and 
 to commence in possession during his life; and such a power is 
 valid to authorize a lease for that period but is void as to the 
 excess. 
 
 § 124. Reservation of a power. 
 The grantor in a conveyance may reserve to himself any 
 6 
 
80 THE REAL PROPERTY liAW. 
 
 power, beneficial or in trust, which he might lawfully grant to 
 
 another; and a power thus reserved, shall be subject to the 
 
 provisions of this article, in the same manner as if granted to 
 
 another. 
 
 § 125. Effect of power to revoke. 
 
 Where the grantor in a conveyance reserves to himself for 
 his own benefit; an absolute power of revocation, he is to be 
 still deemed the absolute owner of the estate conveyed, so far 
 as the rights of creditors and purchasers are concerned. 
 
 § 126. Power to sell in a mortgage. 
 
 Where a power to sell real property is given to a mortgagee, 
 or to the grantee in any other conveyance intended to secure 
 the payment of money, the power is deemed a part of the secur- 
 ity, and vests in, and may be executed by any person who, by 
 assignment or otherwise, becomes entitled to the money so 
 secured to be paid: 
 § 127. When power is a lien. 
 
 A power is a lien or charge on the real property which it em- 
 braces, as against creditors, purchasers and encumbrancers in 
 good faith and without notice, of or from a person having an 
 estate, in the property only from the time the instrument contain- 
 ing the power is duly recorded As- against all other persons, 
 the power is a lien from the time the instrument in which it is 
 contained takes effect. 
 
 | 128. When power is irrevocable. 
 
 A power, whether beneficial or in trust, is irrevocable, unless 
 an authority to revoke it is granted or reserved in the instru- 
 ment creating the power. 
 
 § 129. When estate for life or years is changed into a fee. 
 
 Where an absolute power of disposition, not accompanied by a 
 trust, is given to the owner of a particular estate for life or for 
 years, such estate is changed into a fee absolute in respect 
 to the rights of creditors, purchasers and encumbrancers, but 
 subject to any future estates limited thereon, in case the power 
 of absolute disposition is not executed, and the property is not 
 sold for the satisfaction of debts. 
 § 130. Certain powers create a fee. 
 
 Where a like power of disposition is given to a person to whom 
 no particular estate is limited, such person also takes a fee, 
 subject to any future estates that may be limited thereon, but 
 absolute in respect to creditors, purchasers and encumbrancers. 
 
 | 131. When grantee of power has absolute fee. 
 Where such a power of disposition is given, and no remainder 
 
THE REAL PROPERTY LAW. 81 
 
 is limited on the estate of the grantee of the power, such grantee 
 
 is entitled to an absolute fee. 
 
 § 132. Effect of power to devise in certain cases. 
 
 Where a general and beneficial power to devise the inheri- 
 tance is given to a tenant for life, or for years, such tenant is 
 deemed to possess an absolute power of disposition within the 
 meaning of and subject to the provisions of the last three sec- 
 tions. 
 § 133. When power of disposition absolute. 
 
 Every power of disposition by means of which the grantee is 
 enabled, in his lifetime, to dispose of the entire fee for his own 
 benefit, is deemed absolute. 
 § 134. Power subject to condition. 
 
 A general and beneficial power may be created subject to a 
 condition precedent or subsequent, and until the power becomes 
 absolutely vested it is not subject to any provision of the last 
 four sections. 
 
 § 135. Power of life tenant to make leases. 
 
 The power of a tenant for life to make leases is not assignable 
 as a separate interest, but is annexed to his estate, and passes 
 by a grant of such estate unless specially excepted. If so ex- 
 cepted, it is extinguished. 
 
 Such a power may be released by the tenant to a person enti- 
 tled to au expectant estate in the property, and shall thereupon 
 be extinguished. 
 
 § 136. Effect of mortgage by grantee. 
 
 A mortgage executed by a tenant for life, having a power to 
 make leases, does not extinguish or suspend the power; but the 
 power is bound by the mortgage in the same manner as the real 
 property embraced therein, and the effects on the power of such 
 lien by mortgage are: 
 
 1. That the mortgagee is entitled to an execution of the power 
 so far as the satisfaction of his debt requires; and, 
 
 2. That anj subsequent estate, created by the owner, in exe- 
 cution of the power, becomes subject to the mortgage as if in 
 terms embraced therein. 
 
 § 137. When a trust power is imperative. 
 
 A trust power, unless its execution or nonexecution is made 
 expressly to depend on the will of the grantee, is imperative, 
 and imposes a duty on the grantee, the performance of which 
 may be compelled for the benefit of the person interested. A 
 trust power does not cease to be imperative where the grantee 
 has the right to select any, and exclude others, of the persons 
 designated as the beneficiaries of the trust. 
 
82 THE REAL PROPERTY LAW. 
 
 § 138. Distribution when more than one beneficiary. 
 
 Where a disposition under a power is directed to be made to, 
 among, or between, two or more persons, without any specifi- 
 cation of the share or sum to be allotted to each, all the persons 
 designated shall be entitled to an equal proportion; but when 
 the terms of the power import that the estate or fund is to be 
 distributed amon^" the persons so designated, in such manner or 
 proportions as tbe trustee of the power thinks proper, the trus- 
 tee may allot the whole to any one or more of such persons in 
 exclusion of the others. 
 
 § 139. Beneficial power subject to creditors. 
 
 A special and beneficial power is liable to the claims of cred- 
 itors in the same manner as other interests that can not be 
 reached by execution; and the execution of the power may be 
 adjudged for the benefit of the creditors entitled. 
 
 § 140. Execution of power on death of trustee. 
 
 If the trustee of a power, with the right of selection, dies 
 leaving the power unexecuted, its execution must be adjudged 
 for the benefit, equally, of all the persons designated as bene- 
 ficiaries of the trust. 
 
 § 141. When power devolves on court. 
 
 Where a power in trust is created by will, and the testator has 
 omitted to designate by whom the power is to be executed, its 
 execution devolves on the supreme court. 
 
 § 142. When creditors may compel execution of trust power. 
 
 The execution, wholly or partly, of a trust power may be ad- 
 judged for the benefit of the creditors or assignees of a person 
 entitled as a beneficiary of the trust, to compel its execution, 
 'where his interest is assignable. 
 
 § 143. Defective execution of trust power. 
 
 Where the execution of a power in trust is defective, wholly 
 or partly, under the provisions of this article, its proper execu- 
 tion may be adjudged in favor of the person designated as the 
 beneficiary of the trust. 
 
 § 144. Effect of insolvent assignment. 
 
 A beneficial power, and the interest of every person entitled 
 to compel the execution of a trust power, shall pass, respect- 
 ively, to a trustee or committee of the estate of the person in 
 whom the power or interest is vested, or an assignee for the 
 benefit of creditors. 
 
THE REAL PROPERTY LAW. 83 
 
 § 145. How power must be executed. 
 
 A power can be executed only by a written instrument, which 
 would be sufficient to pass the estate, or interest, intended to 
 pass under the power, if the person executing the power were 
 the actual owner. 
 § 146. Execution by survivors. 
 
 Where a power is vested in two or more persons, all must 
 unite in Its execution; but if before its execution, one or more of 
 such persons dies, the power may be executed by the survivor 
 or survivors. 
 
 § 147. Execution of power to dispose by devise. 
 
 Where a power to dispose of real property is confined to a dis- 
 position by d(vise or will, the instrument must be a written 
 will, executed as required by law. 
 § 148. Execution of power to dispose by grant. 
 
 Where a power is confined to a disposition by grant, it can 
 not be executed by will, although the disposition is not intended 
 to take effect until after the death of the person executing the 
 power. 
 
 § 149. When direction by grantor does not render power void. 
 
 Where the grantor of a power has directed or authorized it to 
 be executed by an instrument not sufficient in law to pass the 
 estate, the power is not void, but its execution is to be gov- 
 erned by the provisions of this article. 
 § 150. When directions by grantor need not be followed. 
 
 Where tho grantor of a power has directed any formality to be 
 observed in its execution, in addition to those which would be 
 sufficient by law to pass the estate, the observance of such 
 additional formality is not necessary to the valid execution of 
 the power. 
 
 § 151. Nominal conditions may be disregarded. . 
 
 Where the conditions annexed to a power are merely nominal, 
 and evince no intention of actual benefit to the party to whom, 
 or in whose favor, they are to be performed, they may be wholly 
 disregarded in the execution of the power. 
 § 152. Intent of grantor to be observed. 
 
 Except as provided in this article, the intentions of the grantor 
 of a power as to the manner, time and conditions of its exe- 
 cution must be observed; subject to the power of the supreme 
 court, to supply a defective execution as provided in this article. 
 § 153. Consent of grantor or third person to execution of power. 
 
 Where the consent of the grantor or a third person to the exe- 
 cution of a power is requisite, such consent shall be expressed 
 
84 THH REAL PROPERTY LAW. 
 
 in the instrument by which the power is executed, or in a 
 written certificate thereon. In the first case, the instrument of 
 execution, in the second, the certificate, must be subscribed by 
 the person whose consent is necessary; and to entitle the instru- 
 ment to be recorded, such signature must be acknowledged or 
 proved and certified in like manner as a deed to be recorded. 
 
 § 154. When all must consent. 
 
 Where the consent of two or more persons to the execution of 
 a power is requisite, all must consent thereto; but if, before 
 its execution, one or more of them die, the consent of the survi- 
 vor or survivors is sufficient, unless otherwise prescribed by the 
 terms of the power. 
 § 155. Omission to recite power. 
 
 Aa instrument executed by the grantee of a power, conveying 
 an estate or creating a charge, which he would have no right 
 to convey or create, except by virtue of the power, shall be 
 deemed a valid execution of the power, although the power be 
 not recited or referred to therein. 
 8 156. When devise operates as an execution of the power. 
 
 Real property embraced in a power to devise passes by a will 
 purporting to convey all the real property of the testator, unless 
 the intent that the will is not to operate as an execution of the 
 power, appears, either expressly or by necessary implication. 
 
 § 157. Disposition not void because too extensive. 
 
 A disposition or charge by virtue of a power is not void on the 
 ground that it is more extensive than was authorized by the 
 power; but an estate or interest so created, so far as embraced 
 by the terms of the power, is valid. 
 § 158. Computation of term of suspension. 
 
 The period during which the absolute right of alienation may 
 be suspended, by an instrument in execution of a power must 
 be computed, not from the date of such instrument, but from 
 the time of the creation of the power. 
 
 § 159. Capacity to take under a power. 
 
 An estate or interest can not be given or limited to any person, 
 by an instrument in execution of a power, unless it would have 
 been valid, if given or limited at the time of the creation of the 
 power. 
 
 § 160. Purchase under defective execution. 
 
 A purchaser for a valuable consideration, claiming under a de- 
 fective execution of a power, is entitled to the same relief as a 
 similar purchaser, claiming under a defective conveyance from 
 an actual owner. 
 
THE REAL PROPERTY LAW. 85 
 
 § 161. Instrument affected by fraud. 
 
 An instrument in execution of a power is affected by fraud, 
 in the same manner as a conveyance or will, executed by an 
 owner or by a trustee. 
 
 § 162. Sections applicable to trust powers. 
 
 Sections ninety-one to ninety-three of this chapter, both inclu- 
 sive, in relation to express trust estates, and the trustee thereof, 
 apply equally to trust powers, however created, and to the gran- 
 tees of such powers. 
 
ARTICLE V. 
 
 DO WEB. 
 
 Section 170. Dower. 
 
 171. Dower in lands exchanged. 
 » 172. Dower in lands mortgaged before marriage. 
 
 173. Dower in lands mortgaged for purchase money. 
 
 174. Surplus proceeds of sale under purchase money 
 mortgages. 
 
 175. Widow of mortgagee not endowed. 
 17*5. When dower barred by misconduct 
 
 177. When dower barred by jointure. 
 
 178. When dower barred by pecuniary provisions. 
 
 179. When widow to elect between jointure and dower. 
 
 180. Election between devise and dower. 
 
 181. When deemed to have elected. 
 
 182. When provision in lieu of dower is forfeited. 
 
 183. Effect of acts of husband. 
 
 184. Widow's quarantine. 
 
 185. Widow may bequeath crop. 
 
 186. Divorced woman may release dower. 
 
 187. Married woman may release dower by attorney. 
 
THE REAL PROPERTY LAW. 87 
 
 § 170. Dower. 
 
 A widow shall be endowed of the third part of all ther lands 
 whereof her husband was seized of an estate of inheritance, at 
 any time during the marriage. 
 § 171. Dower in lands exchanged. 
 
 If a husband seized of an estate of inheritance in lands, ex- 
 changes them for other lands, his widow shall not have dower 
 of both, but she must make, her election, to be endowed of the 
 lands given, or of those taken, in exchange; and if her election 
 be not evinced by the commencement of an action to recover 
 her dower of the lands given in exchange within one year after 
 the death of her husband, she is deemed to have elected to take 
 her dower of the lands received in exchange. 
 § 172. Dower in lands mortgaged before marriage. 
 
 Where a person seized of an estate of inheritance in lands, ex- 
 ecutes a mortgage thereof, before marriage, his widow is, nev- 
 ertheless, entitled to dower of the lands mortgaged, as against 
 every person except the mortgagee and those claiming under 
 him. 
 § 173. Dower in lands mortgaged for purchase-money. 
 
 Where a husband purchases lands during the marriage, and at 
 the same time mortgages his estate in those lands to secure the 
 payment of the purchase-money, his widow is not entitled to 
 dower of those lands, as against the mortgagee or those claim- 
 ing under him, although she did not unite in the mortgage. She 
 is entitled to her dower as against every other person. 
 8 174. Surplus proceeds of sale, under purchase-money mort- 
 gages. 
 
 Where, in a case specified in the last section, the mortgagee, 
 or a person claiming under him, causes the land mortgaged to 
 be sold, after the death of the husband, either under a power 
 of sale contained in the mortgage, or by virtue of a judgment 
 in an action to foreclose the mortgage, and any surplus remains, 
 after payment of the money due on the mortgage and the costs 
 and charges of the sale, the widow is nevertheless entitled to the 
 interest or income of one-third part of the surplus for her life, 
 as her dower. 
 § 175. Widow of mortgagee not endowed. 
 
 A widow shall not be endowed of the lands conveyed to her 
 husband by way of mortgage, unless he acquires an absolute 
 estate therein, during the marriage. 
 § 176. When dower barred by misconduct 
 
 In case of a divorce, dissolving the marriage contract for the 
 misconduct of the wife, she shall not be endowed. 
 
THE REAL PROPERTY LAW. 
 
 § 177. When dower barred by jointure. 
 
 Where an estate in real property is conveyed to a person and 
 his intended wife, or to the intended wife alone, or to a person 
 in trust for them or for the intended wife alone, for the purpose 
 of creating a jointure for her, and with her assent, the jointure 
 bars her right or claim of dower in all the lands of the husband. 
 The assent of the wife to such a jointure is evidenced, if she be 
 of full age, by her becoming a party to the conveyance by which 
 it is settled; if she be a minor, by her joining with her father 
 or guardian in that conveyance. 
 § 178. When dower barred by pecuniary provisions. 
 
 Any pecuniary provision, made for the benefit of an intended 
 wife and in lieu of dower, if assented to by her as prescribed in 
 the last section, bars her right or claim of dower in all lands 
 of her husband. 
 
 § 179. When widow to elect between jointure and dower. 
 
 If, before the marriage, but without her assent, or, if after the 
 marriage, real property is given or assured for the jointure of a 
 wife, or a pecuniary provision is made for her, in lieu of dower, 
 she must make her election whether she will take the jointure 
 or pecuniary provision, or be endowed of the lands of her hus- 
 band; but she is not entitled to both. 
 
 § 180. Election between devise and dower. 
 
 If real property is devised to a woman, or a pecuniary or 
 other provision is made for her by will in lieu of her dower, she 
 must make her election whether she will take the property so 
 devised, or the provision so made, or be endowed of the lands 
 of her husband; but she is not entitled to both. 
 § 181. When deemed to have elected. 
 
 Where a woman is entitled to an election, as prescribed in 
 either of the last two sections, she is deemed to have elected to 
 take the jointure, devise or pecuniary provision, unless within 
 one year after the death of her husband she enters upon the 
 lands assigned to her for her dower, or commences an action 
 for her dower. But, during such period of one year after the 
 death of her said husband, her time to make such election may 
 be enlarged by the order of any court competent to pass on the 
 accounts of executors, administrators or testamentary trustees, 
 or to admeasure dower, on an affidavit showing the pendency 
 of a proceeding to contest the probate of the will containing 
 such jointure, devise or pecuniary provision, or of an action to 
 construe or set aside such will, or that the amount of claims 
 against the estate of the testator can not be ascertained within 
 the period so limited, or other reasonable cause, and on notice 
 given to such persons, and in such manner, as such court may 
 
THE REAL PROPERTY LAW. 89 
 
 direct. Such order shall be Indexed and recorded in the same 
 manner as a notice of pendency of action in the office of the 
 clerk of each county wherein the real property or a portion 
 thereof affected thereby is situated. 
 
 § 182. When provision in lieu of dower is forfeited. 
 
 Kvery jointure, devise and pecuniary provision in lieu of 
 dower is forfeited by the woman for whose benefit it is made 
 in a case in which she would forfeit her dower; and on such for- 
 feiture, an estate so conveyed for jointure, or devised, or a pecun- 
 iary provision so made, immediately vests in the person or legal 
 representatives of the person in whom they would have vested 
 on the determination of her interest therein, by her death. 
 
 § 183. Effect of acts of husband. 
 
 An act, deed, or conveyance, executed or performed by the 
 husband without the assent of his wife, evidenced by her ac- 
 knowledgment thereof, in the manner required by law to 
 pass the contingent right of dower of a married woman, or a 
 judgment o; - decree confessed by or recovered against him, or 
 any laches, default, covin or crime of a husband, does not preju- 
 dice the right of his wife to her dower or jointure, or preclude 
 her from the recovery thereof. 
 
 § 184. Widow's quarantine. 
 
 A widow may remain in the chief house of her husband forty 
 days after his death, whether her dower is sooner assigned to 
 her or not, without being liable to any rent for the same; and 
 in the meantime she may have her reasonable sustenance out of 
 the estate of her husband. 
 
 § 185. Widow may bequeath a crop. 
 
 A woman may bequeath a crop in the ground of land held by 
 her in dower. 
 
 § 186. Divorced woman may release dower. 
 
 A woman who is divorced from her husband, whether such 
 divorce be absolute or limited, or granted in his or her favor, 
 by any court of competent jurisdiction, may release to him, by 
 an instrument in writing, sufficient to pass title to real estate, 
 her inchoate right of dower in any specific real property there- 
 tofore owned by him, or generally in all such real property, and 
 such as he shall thereafter acquire. 
 
 § 187. Married woman may release dower by attorney. 
 
 A married woman of. full age may release her inchoate right 
 of dower in real property by attorney in fact in any case where 
 she can personally release the same. 
 
ARTICLE VI. 
 LANDLORD AND TENANT. 
 
 Sectioa 190. Action for use and occupation. 
 
 191. Rent due on life leases recoverable. 
 
 192. When rent is apportionable. 
 
 193. Rights where property or lease is transferred. 
 
 194. Attornment by tenant. 
 
 195. Notice of action adverse to possession of tenant. 
 
 196. Effect of renewal on sub-lease. 
 
 197. When tenant may surrender premises. 
 
 198. Termination of tenancies at will or by sufferance, 
 
 by notice. 
 399. Liability of tenant holding over after giving notice 
 of intention to quit. 
 
 200. Liability of tenant holding over after giving notice 
 
 to quit 
 
 201. Liability of landlord where premises are occupied 
 for unlawful purpose. 
 
 202. Duration of certain agreements in New York. 
 
THE REAL PROPERTY LAW. 91 
 
 § 190. Action for use and occupation. 
 
 The landlord may recover a reasonable compensation for the 
 use and occupation of real property, by any person, under an 
 agreement, not made by deed; and a parol lease or other agree- 
 ment may be used as evidence of the amount to which he is 
 entitled. 
 § 191. Rent due on life leases recoverable. 
 
 Rent due on a lease for life or lives, is recoverable by action, 
 as well after as before the death of the person on whose life 
 the rent depends, and in the same manner as rent due on a 
 lease for years. 
 § 192. When rent is apportionable. 
 
 Where a tenant for life, who shall have demised the real prop- 
 erty, dies before the first rent day, or between two rent days, 
 his executor or administrator may recover the proportion of 
 rent which accrued to him before his death. 
 § 193. Rights where property or lease is transferred. 
 
 The grantee of leased real property, or of a reversion thereof, 
 or of any rent, the devisee or assignee of the lessor of such a 
 lease, or the heir or personal representative of either of them, 
 has the same remedies, by entry, action or otherwise, for the 
 nonperformance of any agreement contained in the assigned 
 lease for the recovery of rent, for the doing of any waste, or for 
 other cause of forfeiture as his grantor or lessor had, or would 
 have had, if the reversion had remained in him. A lessee of 
 real property, his assignee or personal representative, has the 
 same remedy against the lessor, his grantee or assignee, or the 
 representative of either, for the breach of an agreement con- 
 tained in the lease, that the lessee might have had against his 
 immediate lessor, except a covenant against incumbrances or 
 relating to the title or possession of the premises leased. This 
 section applies as well to a grant or lease in fee, reserving 
 rent, as to a lease for life or for years; but not to a deed of con- 
 veyance in fee, made before the ninth day of April, eighteen 
 hundred and five, or after the fourteenth day of April, eighteen 
 hundred and sixty. 
 § 194. Attornment by tenant. 
 
 The attornment of a tenant to a stranger is absolutely void, 
 and does not in any way affect the possession of the landlord 
 unless made either: 
 
 1. With the consent of the landlord; or, 
 
 2. Pursuant to or in consequence of a judgment, order, or de- 
 cree of a court of competent jurisdiction; or, 
 
 3. To a mortgagee, after the mortgage has become forfeited. 
 § 195. Notice of action adverse to possession of tenant. 
 
 Where a process or summons in an action to recover the real 
 property occupied by him, or the possession thereof, is served 
 
92 THE REAL PROPERTY LAW. 
 
 upon a tenant, he must forthwith give notice*hereof to his land- 
 lord; otherwise he forfeits the value of three years' rent of such 
 property, to the landlord or other person of whom he holds. 
 § 196. Effect of renewal on sub-lease. 
 
 The surrender of an under-lease is not requisite to the validity 
 of the surrender of the original lease, where a new lease is given 
 by the chief landlord. Such a surrender and renewal do not im- 
 pair auy right or interest of the chief landlord, his lessee or the 
 holder of an under-lease, under the original lease; including the 
 chief landlord's remedy by entry, for the rent or duties secured 
 by the new lease, not exceeding the rent and duties reserved in 
 the original lease surrendered. 
 § 197. When tenant may surrender premises. 
 
 Where any building, which is leased or occupied, is destroyed 
 or so injured by the elements, or any other cause as to be un- 
 tenantable, and unfit for occupancy, and no express agreement 
 to the contrary has been made in writing, the lessee or occupant 
 may, if the destruction or injury occurred without his fault or . 
 neglect, quit and surrender possession of the leasehold premises, 
 and of the land so leased or occupied; and he is not liable to 
 pay to the lessor or owner, rent for the time subsequent to the 
 surrender. 
 
 § 198. Termination of tenancies at will or by sufferance by 
 notice. 
 
 A tenancy at will or by sufferance, however created, may be 
 terminated by a written notice of not less than thirty days given 
 in behalf of the landlord, to the tenant, requiring him to remove 
 from the premises; which notice must be served, either by deliv- 
 ering to the tenant or to a person of suitable age and discre- 
 tion, residing upon the premises, or if neither the tenant nor 
 such a person can be found, by affixing it upon a conspicuous 
 part of the premises, where it may be conveniently read. At 
 the expiration of thirty days after the service of such notice, 
 the landlord may re-enter, maintain ejectment, or proceed, in 
 the manner prescribed by law, to remove the tenant, without 
 further or other notice to quit. 
 
 8 199. Liability of tenant holding over after giving notice of In- 
 tention to quit. 
 If a tenant gives notice of his intention to quit the premises 
 held by him, and does not accordingly deliver up the possession 
 thereof, at the time specified in such notice, he or his personal 
 representatives must, so long as he continues in possession, 
 pay to the landlord, his heirs or assigns, double the rent which 
 he should otherwise have paid, to be recovered at the same 
 time, and in the same manner, as the single rent. 
 
THE REAL PROPERTY LAW. 93 
 
 § 200. Liability of tenant holding over after giving notice to 
 quit. 
 Where, on the termination of an estate for life, or for years, 
 the person entitled to the possession demands the same, and 
 serves, in the same manner as for the termination of a tenancy 
 at will, a written notice to quit, if the tenant, or any person in 
 possession under him, or by collusion with him, willfully holds 
 over, after the expiration of thirty days from such service, he 
 must pay to the person so kept out of possession, or his repre- 
 sentatives, at the rate of double the yearly value of the prop- 
 erty detained, for the time while he so detains the same, to- 
 gether with all damages incurred by the person so kept out by 
 reason of such detention. There is no equitable defense or relief 
 againdt a demand accrued, or a recovery had, under this sec- 
 tion. 
 
 § 201. Liability of landlord where premises are occupied for un- 
 lawful purpose. 
 
 The owner of real property, knowingly leasing or giving posses- 
 sion of the same to be used or occupied, wholly or partly, for any 
 unlawful trade, manufacture or business, or knowingly permit- 
 ting the same to be so used, is liable severally, and also jointly 
 with one or more of the tenants or occupants thereof, for any 
 damage resulting from such unlawful use, occupancy, trade, 
 manufacture or business. 
 § 202. Duration of certain agreements in New York. 
 
 An agreement, for the occupation of real property in the city 
 of New York, which shall not particularly specify the duration 
 of the occupation, shall be deemed to continue until the first 
 day of May, next after the possession commences under the 
 agreement: and rent thereunder is payable at the usual quarter 
 days, for the payment of rent in that city, unless otherwise ex- 
 pressed in the agreement 
 
ARTICLE VII. 
 
 CONVEYANCES AND MORTGAGES. 
 
 Section 205. Definitions and use of terms. 
 20(3. Livery of seizin abolished. 
 
 207. When written conveyance necessary. 
 
 208. Grant of fee or freehold. 
 
 209. When grant takes effect. 
 
 210. Estate which passes by grant or devise. 
 
 211. Certain deeds declared grants. 
 
 212. Conveyance by tenant for life or years of greater 
 
 estate than possessed. 
 
 213. Effect of conveyance where property is leased. 
 
 214. Covenants in mortgages. 
 
 215. Mortgages on real property inherited or devised. 
 
 216. Covenants not implied. 
 
 217. Lineal and collateral warranties abolished. 
 
 218. Construction of covenants in grants of freehold in- 
 
 terests. 
 
 219. Construction of covenants in mortgages and bonds. 
 
 220. Construction of grant of appurtenances and of all 
 
 the rights and estate of grantor. 
 
 221. Construction of grant in executor's or trustee's 
 
 deed of appurtenances, and of the estate of tes- 
 tator and grantor. 
 
 222. Covenants to bind representatives of grantor and 
 
 mortgagor and enure to the benefit of whom. 
 
 223. Short forms of deeds and mortgages. 
 
 224. When contract to lease or sell void. 
 
 225. Effect of grant or mortgage of real property ad- 
 
 versely possessed. 
 
 226. Conveyances with intent to defraud purchasers and 
 
 incumbrancers void. 
 
 227. Conveyances with intent to defraud creditors void. 
 223. Conveyances void as to creditors, purchasers and 
 
 incumbrancers, void as to heirs and assigns. 
 
 229. Fraudulent intent, question of fact. 
 
 230. Rights of purchaser or incumbrancer for valuable 
 
 consideration protected. 
 
 231. Conveyances with power to revoke, determine or 
 
 alter. 
 
 232. Disaffirmance of fraudulent act by executor and 
 
 others. 
 
 233. When remainderman may pay interest owed by 
 
 life tenant. 
 
 234. Powers of courts of equity not abridged. 
 
THE REAL PROPERTY LAW. 05 
 
 § 205. Definitions and use of terms. 
 
 The term "heirs," or other words of inheritance, are not requi- 
 site to create or convey an estate in fee. The term "convey- 
 ance," as used in this article, includes every instrument, in 
 writing, except a will, by which any estate or interest in real 
 property is created, transferred, assigned or surrendered. Every 
 instru nent creating, transferring, assigning or surrendering an 
 estate or interest in real property must be construed according 
 to the intent of the parties, so far as such intent can be gath- 
 ered from the whole instrument The terms "estate" and "inter- 
 est in real property," include every such estate and Interest, 
 freehold or chattel, legal or equitable, present or future, vested 
 or contingent. 
 § 206. Livery of seizin abolished. 
 
 The conveyance of real property by feoffment, with livery of 
 seizin, has been abolished. 
 
 § 207. When written conveyance necessary. 
 
 An estate or interest in real property, other than a lease for 
 a term not exceeding one year, or any trust or power, over or 
 concerning real property, or in any manner relating thereto, can 
 not be created, granted, assigned, surrendered or declared, un- 
 less by act or operation of law, or by a deed or conveyance in 
 writing, subscribed by the person creating, granting, assigning, 
 surrendering or declaring the same, or by his lawful agent, 
 thereunto authorized by writing. But this section does not af- 
 fect the power of a testator in the disposition of his real prop- 
 erty by will; nor prevent any trust from arising or being ex- 
 tinguished by implication or operation of law, nor any declara- 
 tion of trust from being proved by a writing subscribed by the 
 person declaring the same. 
 
 § 208. Grant of fee or freehold. 
 
 A grant in fee or of a freehold estate, must be subscribed by 
 the person from whom the estate or interest conveyed is in- 
 tended to pass, or by his lawful agent. If not duly acknowl- 
 edged before its delivery, according to the provisions of this 
 chapter, its execution and delivery must be attested by at least 
 one witness, or, if not so attested, it does not take effect as 
 against a subsequent purchaser or encumbrancer until so ac- 
 knowledged. 
 
 § 209. When grant takes effect 
 
 A grant takes effect, so as to vest the estate or interest in- 
 tended to be conveyed, only from its delivery; and all the rules 
 of law, now In force, in respect to the delivery of deeds, apply 
 to grants hereafter executed. 
 
 7 
 
96 THE REAL PROPERTY LAW. 
 
 § 210. Estate which passes by grant or devise. 
 
 A grant or devise of real property passes all the estate or in- 
 terest of the grantor or testator unless the intent to pass a less 
 estate or interest appears by the express terms of such grant or 
 devise or by necessary implication therefrom. A greater estate 
 or interest does not pass by any grant or conveyance, than the 
 grantor possessed or could lawfully convey, at the time of the 
 delivery of the deed; except that every grant is conclusive 
 against the grantor and his heirs claiming from him by descent, 
 and as against a subsequent purchaser or encumbrancer from 
 such grantor, or from such heirs claiming as such, other than 
 a subsequent purchaser or encumbrancer, in good faith and for 
 a valuable consideration, who acquires a superior title by a con- 
 veyance that has been first duly recorded. 
 
 § 211. Certain deeds declared grants. 
 
 Deeds of bargain and sale, and of lease and release, may con- 
 tinue to be used; and are to be deemed grants, subject to all 
 the provisions of law in relation thereto. 
 
 § 212. Conveyance by tenant for life or years of greater estate 
 than possessed. 
 
 A conveyance made by a tenant for life or years, of a greater 
 estate than he possesses, or can lawfully convey, does not work 
 a forfeiture of his estate, but passes to the grantee all the title, 
 estate or interest which such tenant can lawfully convey. 
 § 213. Effect of conveyance where property is leased. 
 
 An attornment to a grantee is not requisite to the validity of 
 a conveyance of real property occupied by a tenant, or of the 
 rents or profits thereof, or any other interest therein. But the 
 payment of rent to a grantor, by his tenant, before notice of the 
 conveyance, binds the grantee; and the tenant is not liable to 
 such grantee, before such notice, for the breach of any condi- 
 tion of the lease. 
 
 § 214. Covenants in mortgages. 
 
 A mortgage of real property does not imply a covenant for the 
 payment of the sum intended to be secured; and where such 
 covenant is not expressed in the mortgage, or a bond or other 
 separate instrument to secure such payment, has not been given, 
 the remedies of the mortgagee are confined to the property men- 
 tioned in the mortgage. 
 
 § 215. Mortgages on real property inherited or devised. 
 
 Where real property, subject to a mortgage executed by any 
 ancestor or testator, descends to an heir, or passes to a devisee, 
 such heir or devisee must satisfy and discharge the mortgage 
 out of his own property, without resorting to the executor or ad- 
 
THE REAL PROPERTY LAW. 97 
 
 miuistrator of his ancestor or testator, unless there be an ex- 
 press direction in the will of such testator, that such mortgage 
 be otherwise paid. 
 8 216. Covenants not implied. 
 
 A covenant is not implied in a conveyance of real property, 
 whether th? conveyance contains any special covenant or not. 
 § 217. Lineal and collateral warranties abolished. 
 
 Lineal and collateral warranties, with all their incidents, have 
 been abolished; but the heirs and devisees of a person, who has 
 made a covenant or agreement, are answerable thereon, to the 
 extent of the real property descended or devised to them, in the 
 cases and in the manner prescribed by law. 
 § 218. Construction of covenants in grants of freehold interests. 
 
 In grants of freehold interests in real property, the following 
 or similar covenants must be construed as follows: 
 
 1. Seizin.— A covenant that the grantor "is seized of the said 
 premises (described) in fee simple, and has good right to convey 
 the same," must be construed as meaning that such grantor, at 
 the time of the execution and delivery of the conveyance, is 
 lawfully seized of a good, absolute and indefeasible estate of 
 inheritance in fee simple, of and in all and singular the premi- 
 ses thereby conveyed, with the tenements, hereditaments and 
 appurtenances thereto belonging, and has good right, full power 
 and lawful authority to grant and convey the same by the said 
 conveyance. 
 
 2. Quiet enjoyment.— A covenant that the grantee "shall 
 quietly enjoy the said premises," must be construed as meaning 
 that such grantee, his heirs, successors and assigns, shall and 
 may, at all times thereafter, peaceably and quietly have, hold, 
 use, occupy, possess and enjoy the said premises, and every 
 part and parcel thereof, with the appurtenances, without any 
 let, suit, trouble, molestation, eviction, or disturbance of the 
 grantor, his heirs, successors or assigns, or any person or per- 
 sons lawfully claiming or to claim the same. 
 
 3. Freedom from encumbrances.— A covenant "that the said 
 premises are free from encumbrances," must be construed as 
 meaning that such premises are free, clear, discharged and un- 
 encumbered of and from all former and other gifts, grants, 
 titljs, charges, estates, judgments, taxes, assessments, liens and 
 encumbrances, of what nature or kind soever. 
 
 4. Further assurance.— A covenant that the grantor will "exe- 
 cute or procure any further necessary assurance of the title to 
 said premises," must be construed as meaning that the grantor 
 and his heirs, or successors, and all and every person or persons 
 whomsoever lawfully or equitably deriving any estate, right, 
 
98 THE REAL PROPERTY LAW. 
 
 title, or interest of, in, or to the premises conveyed by, from, 
 under, or in trust for him or them, shall and will at any time or 
 times thereafter upon the reasonable request, and at the proper 
 costs and charges of the grantee, his heirs, successors and as- 
 signs, make, do, and execute, or cause to be made, done and exe- 
 cuted, all and every such further and other lawful and reason- 
 able acts, conveyances and assurances in the law for the better 
 and more effectually vesting and confirming the premises there- 
 by granted or so intended to be, in and to the grantee, his heirs, 
 successors and assigns forever, as by the grantee, his heirs, suc- 
 cessors or assigns, or his or their counsel learned in the law, 
 shall be reasonably advised or required. 
 
 5. Warranty of title.— A covenant that the grantor "will for 
 ever warrant the title" to the said premises, must be construed 
 as meaning that the grantor and his heirs, or successors, the 
 premises granted, and every part and parcel thereof, with the 
 appurtenances, unto the grantee, his heirs, successors and as- 
 signs, against the grantor and his heirs or successors, and 
 against all and every person and persons whomsoever lawfully 
 claiming or to claim the same shall and will warrant and for- 
 ever defend. 
 
 6. Grantor has not encumbered.— A covenant that the grantor 
 "has not done or suffered anything whereby the said premises 
 have been encumbered," must be construed as meaning that 
 the grantor has not made, done, committed, executed, or suf- 
 fered any act or acts, thing or things whatsoever, whereby or 
 by means wherof, the above mentioned and described premises, 
 or any part or parcel thereof, now are, or at any time hereafter 
 shall or may be impeached, charged or incumbered in any man- 
 ner or way whatsoever. 
 
 § 219. Construction of covenants in mortgages and bonds. 
 
 In mortgages of real property, and in bonds secured thereby, 
 the following or similar covenants must be construed as follows: 
 
 1. Agreement that whole sum shall become due.— The words 
 "and it is hereby expressly agreed that the whole of the said 
 principal sum shall become due at the option of said mortgagee 
 
 or obligee after default in the payment of interest for 
 
 ■days, or after default in the payment of any tax or assessment 
 for days, after notice and demand," must be con- 
 strued as meaning that should any default be made in the pay- 
 ment of the said interest, or of any part thereof, on any day 
 whereon the same is made payable, or should any tax or assess- 
 ment, which now is or may be hereafter imposed upon the 
 premises hereinafter described, become due or payable, and 
 should the said interest remain unpaid and in arrear for the 
 space of days, or such tax or assessment remain un- 
 
THE EEAL PROPERTY LAW. 99 
 
 paid and In arrear for days after written notice by 
 
 the mortgagee or obligee, his executors, administrators, succes- 
 sors or assigns, that such tax or assessment is unpaid, and de- 
 mand for the payment thereof, then and from thenceforth, that 
 is to say, after the lapse of either one of said periods, as the case 
 may be, the aforesaid - principal sum, with all arrearage of inter- 
 est thereon, shall, at the option of the said mortgagee or obligee, 
 his executors, administrators, successors or assigns, become and 
 be due and payable immediately thereafter although the period 
 above limited for the payment thereof may not then have ex- 
 pired, anything thereinbefore contained to the contrary thereof 
 in any wis ? notwithstanding. 
 
 2. In default of payment, mortgagee to have power to sell.— 
 A covenant that the mortgagor "will pay the indebtedness, as 
 provided in the mortgage, and if default be made in the pay- 
 ment of any part thereof, the mortgagee shall have power to sell 
 the premises therein described, according to law," must be con- 
 strued as meaning that the mortgagor for himself, his heirs, exe- 
 cutors and administrators or successors, doth covenant and 
 agree to pay to the mortgagee, his executors, administrators, 
 successors and assigns, the principal sum of money secured by 
 said mortgage, and also the interest thereon as provided by said 
 mortgage. And if default shall be made in the payment of the 
 said principal sum or the interest that may grow due thereon, 
 or of any part thereof, that then and from thenceforth it shall 
 be lawful for the mortgagee, his executors, administrators or 
 successors to enter into and upon all and singular the premises 
 granted, or intended so to be, and to sell and dispose of the same, 
 and all benefit and equity of redemption of the said mortgagor, 
 his heirs, executors, administrators, successors or assigns there- 
 in, at public auction, according to the act in such case made and 
 provided, and as the attorney of the mortgagor for that purpose 
 duly authorized, constituted and appointed, to make and deliver 
 to the purchaser or purchasers thereof a good and sufficient 
 deed or deeds of conveyance for the same in fee simple (or 
 otherwise, as the case may be) and out of the money arising 
 from such sale, to retain the principal and interest which shall 
 then be du'i, together with the costs and charges of advertise- 
 ment and sale of the said premises, rendering the overplus of 
 the purchase-money, if any there shall be, unto the mortgagor, 
 his heirs, executors, administrators, successors or assigns, which 
 sale so to be made shall forever be a perpetual bar both in law 
 and equity against the mortgagor, his heirs, successors and as- 
 signs, and against all other persons claiming or to claim the 
 premises, or any part thereof by, from or under him, them or 
 any of them. 
 
 3. Mortgagor to keep buildings insured.— A covenant "that the 
 
100 THE REAL PROPERTY LAW. 
 
 mortgagor will keep the buildings on the said premises in- 
 sured against loss by fire, for the benefit of the mortgagee," 
 must be construed as meaning that the mortgagor, his heirs, 
 successors and assigns will, during all the time until the money 
 secured by the mortgage shall be fully paid and satisfied, keep 
 the buildings erected on the premises insured against loss or 
 damag3 by fire, to an amount and in a company to be approved 
 by the mortgagee, and will assign and deliver the policy or pol- 
 icies of such insurance to the mortgagee, his executors, admin- 
 istrators, successors or assigns, so and in such manner and 
 form that he and they shall at all time and times, until the full 
 payment of said moneys, have and hold the said policy or pol- 
 icies as a collateral and further security for the payment of said 
 money, and in default of so doing, that the mortgagee or his 
 executors, administrators, successors or assigns, may make 
 such insurance from year to year, in a sum not exceeding the 
 principal sum for the purposes aforesaid, and pay the premium 
 or premiums therefor, and that the mortgagor will pay to the 
 mortgagee, his executors, administrators, successors or assigns, 
 such premium or premiums so paid, with interest from the 
 time of payment, on demand, and that the same shall be deemed 
 to be secured by the mortgage, and shall be collectible there- 
 upon and thereby in like manner as the principal moneys, and 
 in default of such payment by the mortgagor, his heirs, execu- 
 tors, administrators, successors or assigns, or of assignment 
 and delivery of policies as aforesaid the whole of the principal 
 sum and interest secured by the mortgage shall, at the option 
 of the mortgagee, his executors, administrators, successors or 
 assigns, immediately become due and payable. 
 
 4. Mortgagor to give further assurance of title.— A covenant 
 that the mortgagor "will execute any further necessary assur- 
 ance of the title to said premises, and will forever warrant said 
 title," must be construed as meaning that the mortgagor shall 
 and will make, execute, acknowledge and deliver in due form of 
 law, all such further or other deeds or assurances as may at any 
 time hereafter be reasonably desired or required for the more 
 fully and effectually conveying the premises by the mortgage 
 described, and thereby granted or intended so to be, unto the 
 said mortgagee, his executors, administrators, successors or as- 
 signs, for the purpose aforesaid, and unto all and every person 
 or persons, corporation or corporations, deriving any estate, 
 right, title or interest therein, under the said indenture of mort- 
 gage, or the power of sale therein contained, and the said 
 granted premises against the said mortgagor, and all persons 
 claiming through him will warrant and defend. 
 
THE REAL PROPERTY LAW. 101 
 
 § 220. Construction of grant of appurtenances and of all the 
 rights and estate of grantor. 
 
 In any grant or mortgage of freehold interests in real estate, 
 the words, "together with the appurtenances and all the estate 
 and rights of the grantor in and to said premises," must be con- 
 strued as meaning, together with all and singular the tene- 
 ments, hereditaments and appurtenances thereunto belonging 
 or in anywise appertaining, and the reversion and reversions, 
 remainder and remainders, rents, issues and profits thereof, and 
 also all the estate, right, title, interest, dower and right of dower, 
 curtesy, and right of curtesy, property, possession, claim and 
 demand whatsoever, both in law and in equity, of the said 
 grantor of, in and to the said granted premises and every part 
 and parcel thereof, with the appurtenances. 
 
 § 221. Construction of grant in executor's or trustee's deed of 
 appurtenances, and of the estate of testator and 
 grantor. 
 
 In any deed by an executor of, or trustee under a will, the 
 words "together with the appurtenances and also all the estate 
 which the said testator had at the time of his decease in said 
 premises, and also the estate therein which said grantor has or 
 has power to convey or dispose of, whether individually or by 
 virtue of said will or otherwise," must be construed as mean- 
 ing, together with all and singular the tenements, heredita- 
 ments and appurtenances thereunto belonging, or in anywise 
 appertaining, and the reversion and reversions, remainder and 
 remainders, rents, issues and profits thereof; and also all the 
 estate, right, title, interest, property, possession, claim and de- 
 mand whatsoever, both in law and equity, which the said testa- 
 tor had in his lifetime, and at the time of his decease, or which 
 the said grantor has or has power to convey or dispose of, 
 whether individually or by virtue of the said last will and tes- 
 tament or otherwise, of, in and to the said granted premises, 
 and every part and parcel thereof, with the appurtenances. 
 
 § 222. Covenants to bind representatives of grantor and mort- 
 gagor and enure to benefit of whom. 
 
 All covenants contained in any grant or mortgage of real estate 
 bind the heirs, executors, administrators, successors and as- 
 signs, of the grantor or mortgagor, and enure to the benefit of 
 the heirs, executors, administrators, successors and assigns of 
 the grantee or mortgagee in the same manner and to the same 
 extent, and with like effect as if such heirs, executors, adminis- 
 trators, successors and assigns were so named in such cove- 
 nants, unless otherwise in said grant of mortgage expressly 
 provided. 
 
102 THE REAL PROPERTY LAW. 
 
 § 223. Short forms of deeds and mortgages. 
 
 The use of the following forms of Instruments for the convey- 
 ance and mortgage of real property Is lawful, but this section 
 does not prevent or invalidate the use of other forms: 
 
 SCHEDULE A. 
 DEED WITH FULL, COVENANTS. 
 
 This indenture, made the day of , in 
 
 the year eighteen hundred and , between 
 
 of (insert residence) of the first part, and of (in- 
 sert residence) of the second part. 
 
 Witnesseth, that the said party of the first part, in considera- 
 tion of dollars lawful money of the United States, 
 
 paid by the party of the second part, doth hereby grant and re- 
 ' lease unto the said party of the second part, his heirs and as- 
 signs forever (description), together with the appurtenances and 
 all the estate and rights of the party of the first part in and to 
 said premises. 
 
 To haV'j and to hold the above granted premises unto the said 
 party of the second part, his heirs and assigns forever. And 
 the said party of the first part doth covenant with said party of 
 the second part as follows: 
 
 First. That the party of the first part is seized of said prem- 
 ises in fee simple, and has good right to convey the same. 
 
 Second. That the party of the second part shall quietly enjoy 
 the said premises. 
 
 Third. That the said premises are free from encumbrances. 
 
 Fourth. That the party of the first part will execute or pro- 
 cure any further necessary assurance of the title to said prem- 
 ises. 
 
 Fifth. That the party of the first part will forever warrant the 
 title to said premises. 
 
 In witness whereof, the said party of the first part hath here- 
 unto set his hand and seal the day and year first above written. 
 
 In presence of: 
 
 SCHEDULE B. 
 EXECUTOR'S DEED. 
 
 This indenture, made the day of , eighteen hun- 
 dred an 1 between as executor of the last 
 
 will and testament of late of deceased, of 
 
 the first part, and , of the second part, witnesseth: 
 
 That the said party of the first part, by virtue of the power 
 and authority to him given in and by the said last will and 
 
THE3 REAL PROPERTY LAW. 103 
 
 testament, and in consideration of dollars, lawful 
 
 money of the United States, paid by the said party of the sec- 
 ond part, doth hereby grant and release unto the said party of 
 the second part, his heirs and assigns forever (description) to- 
 gether with the appurtenances, and also all the estate which the 
 said testator had at the time of his decease in said premises, and 
 also the estate therein, which the said party of the first part has 
 or has power to dispose of, whether individually, or by virtue of 
 said will or otherwise. 
 
 To have and to hold the above granted premises unto the said 
 party of the second part, his heirs and assigns forever. 
 
 And the said party of the first part covenants with said party 
 of the second part that the party of the first part has not done 
 or suffered anything whereby the said premises have been en- 
 cumbered in any way whatever. 
 
 In witness whereof the said party of the first part has here- 
 unto set his hand and seal the day and year first above written. 
 
 In presence of: 
 
 SCHEDULE C. 
 MORTGAGE. 
 
 This indenture, made the day of in the year 
 
 eighteen hundred and , between of , 
 
 party of the first part, and of party of the 
 
 second part 
 
 Whereas, the said is justly indebted to the said party 
 
 of the second part in the sum of dollars, lawful money 
 
 of the United States, secured to be paid by his certain bond or 
 obligation, bearing even date herewith, conditioned for the pay- 
 ment of the said sum of dollars, on the day 
 
 of eighteen hundred and and the interest 
 
 thereon, to be computed from at the rate of per 
 
 centum per annum and to be paid 
 
 It being thereby expressly agreed that the whole of the said 
 principal sum shall become due after default in the payment of 
 Interest, taxes or assessments, as hereinafter provided. 
 
 Now this indenture witnesseth, that the said party of the first 
 part, for the better securing the payment of the said sum of 
 money mentioned in the condition of the said bond or obligation, 
 
104 THE REAL PROPERTY LAW. 
 
 with interest thereon, and also for and in consideration of one 
 dollar, paid by the said party of the second part, the receipt 
 whereof is hereby acknowledged, doth hereby grant and release 
 unto the said party of the second part, and to his heirs (or suc- 
 cessors) and assigns forever (description), together with the ap- 
 purtenances, and all the estate and rights of the party of the 
 first part in and to said premises. 
 
 To have and to hold the above granted premises unto the said 
 party of the second part, his heirs and assigns forever. 
 
 Provided always, that if the said party of the first part, his 
 heirs, executors or administrators, shall pay unto the said party 
 of the second part, his executors, administrators or assigns, the 
 said sum of money mentioned in the condition of the said bond 
 or obligation, and the interest thereon, at the time and in the 
 manner mentioned in the said condition, that then these pres- 
 ents, and the estate hereby granted, shall cease, determine and 
 be void. 
 
 And the said party of the first part covenants with the party 
 of the second part as follows: 
 
 1. That the party of the first part will pay the indebtedness 
 as hereinbefore provided, and if default be made in the payment 
 of any part thereof, the party of the second part shall have 
 power to sell the premises therein described according to law. 
 
 2. That the party of the first part will keep the buildings on 
 the said promises insured against loss by fire for the benefit of 
 the mortgagee. 
 
 3. And it is hereby expressly agreed that the whole of said 
 principal sum shall become due at the option of the said party 
 of the second part after default in the payment of interest for 
 . . . .days, or after default in the payment of any tax or assess- 
 ment for days, after notice and demand. 
 
 In witness whereof, the said party of the first part hath here- 
 unto set his hand and seal, the day and year first above written. 
 In the presence of: 
 
THE REAL PROPERTY LAW. 105 
 
 § 224. When contract to lease or sell void. 
 
 A contract for the leasing for a longer period than one year, 
 or for the sale of any real property, or an interest therein, is 
 void, unless the contract, or some note or memorandum thereof, 
 expressing the consideration, is in -writing, subscribed by the 
 lessor or grantor, or by his lawfully authorized agent. 
 
 § 225. Effect of grant or mortgage of real property adversely 
 
 A grant of real property is absolutely void, if at the time of 
 the delivery thereof, such property is in the actual possession 
 of a person claiming under a title adverse to that of the grantor; 
 but such possession does not prevent the mortgaging of such 
 property, and such mortgage, if duly recorded, binds the prop- 
 erty from the time the possession thereof is recovered by the 
 mortgagor or his representatives, and has preference over any 
 judgment or other instrument, subsequent to the recording 
 thereof; and if there are two or more such mortgages, they sev- 
 erally have preference according to the time of recording there- 
 of, respectively. 
 
 § 226. Conveyances with intent to defraud purchasers and en- 
 cumbrancers void. 
 A conveyance of an estate or interest in real property, or the 
 rents and profits thereof, and every charge thereon, made or 
 created with intent to defraud prior or subsequent purchasers 
 or encumbrancers, for a valuable consideration, of the same real 
 property, rents or profits, is void as against such purchasers 
 and encumbrancers. Such a conveyance or charge shall not be 
 deemed fraudulent in favor of a subsequent purchaser or en- 
 cumbrancer, who, at the time of his purchase or encumbrance, 
 has actual or legal notice thereof, unless it appears that the 
 grantee /in the conveyance, or the person to be benefited by the 
 charge was privy to the fraud intended. 
 
 § 227. Conveyances with intent to defraud creditors void. 
 
 A conveyance or assignment in writing or otherwise, of an 
 estate, interest, or existing trust in rear property, or the rents 
 or profits issuing therefrom, or a charge on real property, or on 
 the rents or profits thereof, made with the intent to hinder, de- 
 lay or defraud creditors, or other persons, of their lawful suits, 
 damages, forfeitures, debts or demands, or a bond or other evi- 
 dence of debt given, suit commenced or decree or judgment suf- 
 fered, with the like intent, is void as against every person so 
 hindered, delayed or defrauded. 
 
 § 228. Conveyances void as to creditors, purchasers and encum- 
 brancers, void as to heirs and assigns. 
 A conveyance, charge, instrument or proceeding, declared by 
 
106 THE HEAL PROPERTY LAW. 
 
 this article to be void as against creditors, purchasers or encum- 
 brancers, is equally void as against their heirs, successors, per- 
 sonal representatives or assigns. 
 § 229. Fraudulent intent, question of fact. 
 
 The question of fraudulent intent in a case arising under this 
 article, shall be deemed a question of fact and not of law; and 
 a conveyance or charge shall not be adjudged fraudulent as 
 against creditors, purchasers or encumbrancers, solely on the 
 ground that it was not founded on a valuable consideration. 
 
 § 230. Rights of purchaser or encumbrancer for valuable con- 
 sideration protected. 
 This article does not in any manner affect or Impair the title 
 of a purchaser or encumbrancer for a valuable consideration, 
 unless it appears that he had previous notice of the fraudulent 
 intent of his immediate grantor, or of the fraud rendering void 
 the title of such grantor. 
 8 231. Conveyances with power to revoke, determine or alter. 
 
 A conveyance of or charge on an estate or interest in real 
 property, containing a provision for the revocation, determina- 
 tion or alteration of the estate or interest, or any part thereof, 
 at the will of the grantor, is void, as against subsequent pur- 
 chasers and encumbrancers, from the grantor, for a valuable 
 consideration, of any estate or interest so liable to be revoked 
 or determined, although the same be not expressly revoked, 
 determined or altered by the grantor, by virtue of the power 
 reserved or expressed in the prior conveyance or charge. 
 
 Where a power to revoke a conveyance of real property or the 
 rents and profits thereof, and to reconvey the same, is given to 
 any person, other than the grantor in such conveyance, and such 
 person thereafter conveys the same real property, rents or prof- 
 its to a purchaser or encumbrancer for a valuable consideration, 
 such subsequent conveyance is valid, in the same manner and to 
 the same extent as if the power of revocation were recited there- 
 in, and the intent to revoke the former conveyance expressly 
 declared. 
 
 If a conveyance to a purchaser or encumbrancer, under this 
 section, be made before the person making it is entitled to exe- 
 cute his power of revocation, it is nevertheless valid, from the 
 time the power of revocation actually vests in such person, in 
 the same manner, and to the same extent, as if then made. 
 § 232. Disaffirmance of fraudulent act by executor and others. 
 
 An executor, administrator, receiver, assignee or other trus- 
 tee, may, for the benefit of creditors, or of others interested in 
 real property held in trust, disaffirm, treat as void and resist any 
 
THE REAL PROPERTY LAW. 107 
 
 act done or transfer or agreement made in fraud of the rights 
 of any creditor, including himself, interested in such estate or 
 property; and a person who fraudulently receives, takes, or in 
 any manner interferes with the real property of a deceased per- 
 son, or an insolvent corporation, association, partnership, or indi- 
 vidual, is liable to such executor, administrator, receiver or 
 other trustee for the same, or the value thereof, and for all dam- 
 ages caused by such act to the trust estate. 
 
 A creditor of a deceased insolvent debtor, having a claim or 
 demand exceeding one hundred dollars against such deceased, 
 may, for the benefit of creditors or others interested in the real 
 property of such deceased, disaffirm, treat as void, and resist 
 any act done or conveyance, transfer or agreement made by 
 such deceased in fraud of the rights of any creditor, including 
 himself, and may maintain an action to set aside such act, con- 
 veyance, transfer or agreement, without having first obtained 
 a judgment on such claim or demand; but the same, if disputed, 
 may be established on the trial. The judgment in such action 
 may provide for the sale of the premises or property involved, 
 when a conveyance or transfer thereof is set aside, and that the 
 proceeds thereof be brought into court or paid into the proper 
 surrogate's court to be administered according to law. 
 § 233. When remainderman may pay interest owed by life 
 tenant. 
 
 Whenever real property held by any person for life is encum- 
 bered by mortgage or other lien, the interest on which should 
 be paid by the life tenant, and such life tenant neglects or re- 
 fuses to pay such interest, the remainderman may pay such in- 
 terest, and recover the amount thereof, together with interest 
 thereon from the time of such payment, of the life tenant. 
 § 234. Powers of courts of equity not abridged. 
 
 Nothing contained in this article abridges the powers of courts 
 of equity to compel the specific performance of agreements in 
 cases of part performance. 
 
ARTICLE VIII. 
 
 RECORDING INSTRUMENTS AFFECTING REAL 
 PROPERTY. 
 
 Section 240. Definitions; effect of article. 
 
 241. Recording of conveyances. 
 
 242. By whom conveyance must be acknowledged or 
 
 proved. 
 
 243. Recording of conveyances heretofore acknowledged 
 
 or proved. 
 
 244. Recording executory contracts and powers of at- 
 
 torney. 
 
 245. Recording of letters patent 
 
 246. Recording copies of instruments which are in sec- 
 
 retary of state's office. 
 
 247. Certified copies may be recorded. 
 
 248. Acknowledgments and proofs within the state. 
 
 249. Acknowledgments and proofs in other states. 
 
 250. Acknowledgments and proofs in foreign countries. 
 
 251. Acknowledgments and proofs by married women. 
 
 252. Requisites of acknowledgments. 
 
 253. Proof by subscribing witness. 
 
 254. Compelling witnesses to testify. 
 
 255. Certificate of acknowledgment or proof. 
 
 256. When certificate to state time and place. 
 
 257. When certificate must be under seal. 
 
 258. Acknowledgment by corporation and form of cer- 
 
 tificate. 
 
 259. When county clerk's authentication necessary. 
 
 260. When other authentication necessary. 
 
 261. Contents of certificate of authentication. 
 
 262. Recording of conveyances acknowledged or proved 
 
 without the state, when parties and certifying 
 officer are dead. 
 
 263. Proof where witnesses are dead. 
 
 264. Recording books. 
 
 265. Indexes. 
 
 266. Order of recording. 
 
 267. Certificate to be recorded. 
 
 268. Time of recording. 
 
 269. Certain deeds deemed mortgages. 
 
 270. Recording discharge of mortgage. 
 
 271. Effect of recording assignment of mortgage. 
 
 272. Recording of conveyances made by treasurer of 
 
 Connecticut. 
 
 273. Revocation to be recorded. 
 
 274. Penalty for using long forms of covenants. 
 
 275. Certain acts not affected. 
 
 276. Actions to have certain instruments cancelled of 
 
 record. 
 
 277. Officers guilty of malfeasance liable for damages. 
 
THE REAL PROPERTY LAW. 109 
 
 § 240. Definitions; effect of article. 
 
 The term "real property" as used in this article, includes 
 lands, tenements and hereditaments and chattels real, except a 
 lease for a term not exceeding tbeee years. The term "pur- 
 chaser," includes every person to whom any estate or interest 
 in real property is conveyed for a valuable consideration, and 
 every assignee of a mortgage, lease or other conditional estate. 
 The term "conveyance," includes every written instrument, by 
 which any estate or interest in real property is created, trans- 
 ferred, mortgaged or assigned, or by which the title to any real 
 property may be affected, including an instrument in execution 
 of a power, and although the power be one of revocation only; 
 except a will, a lease for a term not exceeding three years, 
 an executory contract for the sale or purchase of lands, and an 
 instrument containing a power to convey real property as the 
 agent or attorney for the owner of such property. The term 
 "recording officer," means the county clerk of the county, ex- 
 cept in the counties of New York, Kings or Westchester, where 
 it means tho register of the county. 
 
 This article does not apply to leases for life or lives, or for 
 years, heretofore made, of lands in either of the counties of Al- 
 bany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Dela- 
 ware or Schenectady. 
 § 241. Recording of conveyances. 
 
 A conveyance of real property, within the state, on being duly 
 acknowledged by the person executing the same, or proved as 
 required by this chapter, may be recorded in the office of the 
 clerk of the county where such real property is situated. Every 
 such conveyance not so recorded is void as against any sub- 
 sequent purchaser in good faith and for a valuable considera- 
 tion, from the same vendor, his heirs or devisees, of the same 
 real property or any portion thereof, whose conveyance is first 
 duly recorded. 
 § 242. By whom conveyance must be acknowledged or proved. 
 
 Except as otherwise provided by this article, such acknowl- 
 edgment can be made only by the person who executed the con- 
 veyance, and such proof can be made only by some other per- 
 son, who was a witness of its execution, and at the same time 
 subscribed his name to the conveyance as a witness. 
 
 § 243. Recording of conveyances heretofore acknowledged or 
 proved. 
 A conveyance of real property, within the state, heretofore 
 executed, and heretofore acknowledged or proved, and certi- 
 fied, so as to be entitled to be read in evidence, or recorded, un- 
 der the laws in force at the time when so acknowledged or 
 proved, but which has not been recorded is entitled to be 
 
110 THE REAL PROPERTY LAW. 
 
 read in evidence, and recorded in the same manner, and with the 
 like effect, as if this chapter had not been passed. 
 
 If herftofore executed, but not proved or acknowledged, it 
 may be proved or acknowledged in the same manner as convey- 
 ances hereafter executed and with like effect. 
 
 8 244. Recording executory contracts and powers of attorney. 
 
 An executory contract for the sale or purchase of real prop- 
 erty, or an instrument containing a power to convey real prop- 
 erty, as the agent or attorney for the owner of the property, 
 acknowledged or proved, and certified, in the manner to entitle 
 a conveyance to be recorded, may be recorded by the recording 
 officer of any county in which any of the real property to which 
 it relates is situated. 
 
 § 245. Recording of letters patent. 
 
 Letters patent, issued under the great seal of the state, grant- 
 ing real property, may be recorded in the county where such 
 property is situated, in the same manner and with like effect, 
 as a conveyance duly acknowledged or proved and certified so 
 as to entitle it to be recorded. 
 
 § 246. Recording copies of instruments which are in secretary 
 of state's office. 
 
 A copy of an instrument affecting real property, within the 
 state, recorded or filed in the office of the secretary of state, 
 certified in the manner required to entitle the same to be read 
 in evidence, may be recorded with such certificate, in the office 
 of any recording officer of the state. 
 
 | 247. Certified copies may be recorded. 
 
 A copy of a record, or of any recorded instrument, certified or 
 authenticated so as to be entitled to be read in evidence, may 
 be again recorded in any office where the original would be en- 
 titled to be recorded. Such record has the same effect as if the 
 original were so recorded. A copy of a conveyance or mortgage 
 affecting separate parcels of real property situated in different 
 counties, or of the record of such conveyance or mortgage in 
 one of such counties, certified or authenticated so as to be enti- 
 tled to be read in evidence, may be recorded in any county in 
 which any such parcel is situated, with the same effect as if the 
 original instrument authenticated as required by section two 
 hundred and fifty-nine of this chapter were so recorded. 
 
 § 248. Acknowledgments and proofs within the state. 
 
 The acknowledgment or proof of a conveyance of real prop- 
 erty within the state may be made at any place within the state, 
 before a justice of the supreme court; or within the district 
 
THE REAL PROPERTY LAW. HI 
 
 wherein such officer is authorized to perform official duties, be- 
 fore a judge, clerk, deputy clerk, or special deputy clerk of a 
 court, a notary public, or the mayor or recorder of a city, a jus- 
 tice of the peace, surrogate, special surrogate, special county 
 judge, or commissioner of deeds. 
 
 § 249. Acknowledgments and proofs in other states. 
 
 The acknowledgment or proof of a conveyance of real prop- 
 erty, within the state, may be made without the state, but with- 
 in the United States, before either of the following officers act- 
 ing within his jurisdiction, or of the court to which he belongs: 
 
 1. A judge of the supreme court, of the circuit court of ap- 
 peals, of the circuit court, or of the district court of the United 
 States. 
 
 2. A judge of the supreme, superior, or circuit court of a state. 
 
 3. A mayor of a city. 
 
 4. A commissioner appointed for the purpose by the governor 
 of the state. 
 
 5. Any officer of a state, authorized by the laws thereof to 
 take the acknowledgment or proof of deeds to be recorded 
 therein. 
 
 § 250. Acknowledgments and proofs in foreign countries. 
 
 The acknowledgment and proof of a conveyance of real prop- 
 erty within the state, may be made without the United States 
 before either of the following officers: 
 
 1. An ambassador, a minister plenipotentiary, minister ex- 
 traordinary, minister resident, or charge des affairs of the Uni- 
 ted States, residing and accredited within the country. 
 
 2. A consul-general, vice-consul or deputy consul, a consu- 
 lar or vice-consular agent, or a consul or commercial or vice- 
 commercial agent of the United States, residing within the 
 country. 
 
 3. A commissioner appointed for the purpose by the governor, 
 and acting within his own jurisdiction. 
 
 4. A person specially authorized for that purpose by a com- 
 mission, under the seal of the supreme court, issued to a reputa- 
 ble person, residing in or going to the country where the ac- 
 knowledgment or proof is so to be taken. 
 
 5. If within the dominion of Canada, it may also be made be- 
 fore any judge of a court of record; or before any officer of such 
 dominion authorized by the laws thereof to take the acknowl- 
 edgment or proof of deeds to be recorded therein. 
 
 6. If within the United Kingdom of Great Gritain and Ireland 
 or the dominions thereunto belonging, it may also be made be- 
 fore the mayor, provost or other chief magistrate of a city or 
 town therein. , , 
 
112 THH REAL PROPERTY LAW. 
 
 § 251. Acknowledgments and proofs by married women. 
 
 The acknowledgment or proof of a conveyance of real prop- 
 erty, within the state, or of any other written instrument, may 
 be made by a married woman the same as if unmarried. 
 
 § 252. Requisites of acknowledgments. 
 
 An acknowledgment must not be taken by any officer unless 
 he knows or has satisfactory evidence, that the person making 
 it is the person described in and who executed such instrument. 
 
 § 253. Proof by subscribing witness. 
 
 Where the execution of a conveyance is proved by a subscrib- 
 ing witness, such witness must state his own place of residence, 
 and that he knew the person described in and who executed the 
 conveyance. 
 
 The proof must not be taken unless the officer is personally 
 acquainted with such witness, or has satisfactory evidence that 
 he is the same person, who was a subscribing witness to the 
 conveyance. 
 
 § 254. Compelling witnesses to testify. 
 
 On the application of a grantee in a conveyance, his heir »r 
 personal representative, or of a person claiming under either «f 
 them, verified by the oath of the applicant, stating that a witness 
 to the conveyance, residing in the county where the application 
 is made, refuses to appear and testify concerning its execution, 
 and that such conveyance can not be proved without his testi- 
 mony, any officer authorized to take, within the state, acknowl- 
 edgment or proof of conveyance of real property may issue a 
 subpoena, requiring such witness to attend and testify before 
 him concerning the execution of the conveyance. A person who, 
 on being duly served with such a subpoena, without reasonable 
 cause refuses or neglects to attend or refuses to answer under 
 oath concerning the execution of such conveyance, forfeit* t» 
 the person injured one hundred dollars; and may also be com- 
 mitted to prison by the officer who issued the subpoena, there 
 to remain without bail, and without the liberties of the jail, un- 
 til he answers under oath as required by this section. 
 
 § 255. Certificate of acknowledgment or proof. 
 
 An officer taking' the acknowledgment or proof of a convey- 
 ance must indorse thereupon or attach thereto, a certificate, 
 signed Vy himself, stating all the matters required to be done, 
 known er proved on the taking of such acknowledgment «r 
 proof; together with the name and substance of the testimony 
 of each witness ex;i mined before him, and if a subscribing wit- 
 ness, his place of residence. 
 
THE REAL PROPERTY LAW. 113 
 
 S 256. When certificate to state time and place. 
 
 Where the acknowledgment or proof is taken by a commis- 
 sioner appointed bj the governor, for a city or county within 
 the United States, and without the state, the certificate must 
 also state the day on which, and the city or town or county in 
 which the same was taken. 
 
 § 257. When certificate must be under seal. 
 
 Where a certificate of acknowledgment or proof is made by a 
 commissioner appointed by the governor, or by the mayor or 
 other chief magistrate of a city or town without the United 
 States, or by a minister, charge des affairs, consul-general, vice- 
 consul or deputy consul, consular or vice-consular agent, or con- 
 sul or commercial or vice-commercial agent, of the United States, 
 it must be under his seal of office, or the seal of the consulate to 
 which he is attached. 
 
 All acknowledgments or proofs of deeds, mortgages or other 
 instruments relating to real property, the certificates of which 
 wore made in the form required by the laws of this state, by a 
 vice-consul, deputy-consul, consular agent, vice-consular agent, 
 consul or commercial agent or vice-commercial agent of the 
 United States prior to the fourteenth day of April, eighteen hun- 
 dred and sixty-five, have' been confirmed. 
 
 § 258. Acknowledgment by corporation and form of certificate. 
 The acknowledgment of a conveyance or other instrument 
 by a corporation, must be made by some officer thereof author- 
 ized to execute the same by the board of directors of said cor- 
 poration. The certificate of acknowledgment must be in sub- 
 stantially the following form, the blanks being properly filled i 
 
 Stat j of New York, ) gg . 
 County of , ( 
 
 On the day of in the year , 
 
 before me personally came to me known, who, being 
 
 by me duly sworn, did depose and say that he resided in ; 
 
 that he is the (president or other officer) of the (name of corpora- 
 tion), the corporation described in and which executed the 
 above instrument; that he knew the seal of said corporation; 
 that the seal affixed to said instrument was such corporate seal; 
 that it was so affixed by order of the board of directors of said 
 corporation, and that he signed his name thereto by like order. , 
 (Signature and office of officer taking acknowledgment.) 
 
 If such corporation have no seal, that fact must be stated in 
 place of the statements required respecting the seal. 
 
114 THE REAL PROPERTY IiAW. 
 
 § 259. When county clerk's authentication necessary. 
 
 A certificate of acknowledgment or proof, made within the 
 state, by a commissioner of deeds, justice of the peace, or, ex- 
 cept as otherwise provided by law, by a notary public, does not 
 entitle the conveyance to be read in evidence or recorded, ex- 
 cept within the county in which the officer resides at the time 
 of making such certificate, unless authenticated by a certificate 
 of the clerk of the same county. But this section does not applj 
 to a conveyance executed by an agent for the Holland Land 
 company, or of the Pulteney estate, lawfully authorized to con- 
 vey real property. 
 § 260, When other authentication necessary. 
 
 In the following cases a certificate of acknowledgment or 
 proof is not entitled to be read in evidence or recorded unless 
 authenticated by the following officers, respectively: 
 
 1. Where the original certificate of acknowledgment or proof 
 is made by a commissioner appointed by the governor, by the 
 secretary of state. 
 
 2. Where made by a judge of a court of record in Canada, by 
 the clerk of the court. 
 
 3. Where made by the officer of a state of the United States, 
 or of the dominion of Canada authorized by the laws thereof to 
 take the acknowledgment or proof of deeds to be recorded there- 
 in, by the secretary of state of the state, or the clerk, register, 
 recorder or prothonotary of the county in which the officer mak- 
 ing the original certificate resided, when the certificate was 
 made, or by the clerk of any court of that county, having by 
 law a seal. 
 
 8 261. Contents of certificate of authentication. 
 
 An officer authenticating a certificate of acknowledgment or 
 proof must subjoin or attach to the original certificate a certifi- 
 cate under his hand, and if he has, pursuant to law, an official 
 seal, under such seal. Except when the original certificate is 
 made by a judge of a court of record in Canada, auch certificate 
 of authentication must specify that, at the time of taking the 
 acknowledgment or proof, the officer taking it was duly author- 
 ized to take the same; that the authenticating officer is ac- 
 quainted with the former's handwriting, or has compared the 
 signature to the original certificate with that deposited in his 
 office by such officer; and that he verily believes the signature 
 to the original certificate is genuine; and if the original certifi- 
 cate is required to be under seal, he must also certify that he 
 has compared the impression of the seal affixed thereto with the 
 impression of the seal of the officer who took the acknowledg- 
 ment or proof deposited in his office, and that he verily believes 
 the impression of the seal upon the original certificate is gen- 
 uine. 
 
THE REAL PROPERTY LAW. 115 
 
 A clerk's certificate authenticating a certificate of acknowl- 
 edgment or proof, taken before a judge of a court of record in 
 Canada, must specify that there is such a court; that the judge 
 before whom the acknowledgment of proof was taken, was, 
 when it was taken, a judge thereof; that such court has a 
 seal; that the officer authenticating is clerk thereof; that he is 
 well acquainted with the handwriting of such judge, and verily 
 believes his signature is genuine. 
 
 8 262. Recording of conveyances acknowledged or proved with- 
 out the state, where parties and certifying officer are 
 dead. 
 Where the execution of a conveyance of real property within 
 this state is acknowledged or proved according to the laws of 
 any other state of the United States, and a certificate of the 
 acknowledgment or proof signed by the officer taking it is an- 
 nexed to or indorsed upon the instrument, if such officer and 
 the grantor or mortgagor be dead and the death of all of them 
 be proved by affidavit, sworn to in such state before an officer 
 authorized by its laws to administer an oath therein, the con- 
 veyance, with the affidavit or affidavits annexed thereto, on 
 being authenticated as required by this section, may be read in 
 evidence and recorded in the same manner, and with like effect, 
 as if the conveyance was acknowledged or proved and certi- 
 fied as required by the laws of this state. 
 
 To entitle such conveyance and affidavits to be read in evi- 
 dence, or recorded, a certificate of the clerk, recorder, register 
 or prothonotary of the county in which the deceased officer re- 
 sided, authenticating his signature, and also certifying that the 
 conveyance is acknowledged or proved in all respects, as re^ 
 quired by the laws of such state, must be annexed to the origi- 
 nal certificate; and a like certificate of such clerk, recorder, reg- 
 ister ov prothonotary, authenticating the signature of the officer, 
 before whom the affidavits proving the deaths were taken, must 
 be annexed to such affidavits. The affidavits on being recorded, 
 are presumptive evidence of the matters of fact, required to 
 be stated therein. 
 § 263. Proof where witnesses are dead. 
 
 Wheru the witnesses to a conveyance, authorized to be re- 
 corded, are dead, its execution may be proved before any officer 
 authorized to take within the state the acknowledgment and 
 proof of conveyances, other than a commissioner of deeds, a 
 notary public, or a justice of the peace. The proof of the exe- 
 cution must be made by satisfactory evidence of the death of all 
 the witnesses thereto, and of the handwriting of such witnesses, 
 or any one of them, and of the grantor, which evidence, with 
 the name and residence of each witness examined, must be set 
 
110 THE REAL PROPERTY LAW. 
 
 forth by the officer taking the same, in his certificate of proof. 
 A conveyance so proved, and certified, may be recorded in the 
 proper office, if the original conveyance be at the same time de- 
 posited in the same office, there to remain for the inspection of 
 all persons desiring to examine the same. If the conveyance 
 affects real property in two or more counties, a certified copy of 
 the conveyance, -with the proof and certificates, may be re- 
 corded in each of such counties. Such recording and deposit are 
 constructive notice of the execution of such conveyance to all 
 purchasers of the same real property, or any part thereof, 
 from the same vendor, his heirs or assigns, subsequent to 
 such recording, but do not entitle the conveyance or the record 
 thereof, or a transcript of the record to be read in evidence. 
 
 § 264. Recording books. 
 
 Different sets of books must be provided by the recording of- 
 ficer of each county, for the recording of deeds and mortgages; 
 in one of which sets, he must record all conveyances and other 
 instruments absolute in their terms delivered to him, pursuant 
 to law, to be so recorded, which are not intended as mortgages, 
 or securities in the nature of mortgages, and in the other set, 
 suoh mortgages and securities delivered to him. 
 
 § 265. Indexes. 
 
 Each recording officer must provide, at the expense of his 
 county, proper books for making general indexes of instruments 
 recorded in his office, and must form indexes therein, so as to 
 afford correct and easy reference to the books of record in his 
 office. There must be one set of indexes for mortgages or se- 
 curities in the nature of mortgages, and another set for convey- 
 ances and other instruments not intended as such mortgages or 
 securities. Each set must contain two lists in alphabetical or- 
 der, one consisting of the names of the grantors or mortgagors, 
 followed by the names of their grantees or mortgagees, and the 
 other list consisting of the names of the grantees or mortgagees, 
 followed by the names of their grantors or mortgagors, with 
 proper blanks in each class of names, for subsequent entries, 
 which entries must be made as instruments are delivered for 
 record. 
 
 This section, so far as relates to the preparation of new in- 
 dexas, shall not apply to a county where the recording officer 
 now has general numerical Indexes. 
 
 A recording officer who records a conveyance of real property, 
 sold by virtue of an execution, or by a sheriff, referee or other 
 person, pursuant to a judgment, the granting clause whereof 
 states whose right, title or interest was sold, must insert In the 
 proper index, under the head "grantors," the name of the officer 
 
THH REAL PROPERTY LATT. 117 
 
 executing the conveyance, and of each person whose right, title 
 or interest is so stated to hare been sold. 
 
 § 266. Order of recording. 
 
 Every instrument, entitled to be recorded, must be recorded 
 by the recording officer in the order and as of the time of ita de- 
 livery to him therefor, and is considered recorded from the time 
 of such delivery. 
 
 § 267. Certificate to be recorded. 
 
 The certificate of the acknowledgment or proof of the execu- 
 tion of an instrument, and the certificate authenticating the sig- 
 nature or seal of the officer so certifying, or both, if required, 
 must be recorded together with the instrument so acknowl- 
 edged or proved; otherwise neither the record of the instrument 
 nor a transcript thereof can be read in evidence. 
 
 § 268. Time of recording. 
 
 The recording officer must make an entry in the record, im- 
 mediately after the copy of every instrument recorded by him, 
 stating the hour, day, month and year, when it was recorded, 
 and must Indorse upon every such instrument a certificate, stat- 
 ing the time as aforesaid, when, and the book and page where, 
 the same was recorded. 
 
 § 269. Certain deeds deemed mortgages. 
 
 A deed conveying real property, which, by any other written 
 instrument, appears to be intended only as a security in the 
 nature of a mortgage, although an absolute conveyance in 
 terms, must be considered a mortgage; and the person for whose 
 benefit such deed is made, derives no advantage from the re- 
 cording thereof, unless every writing, operating as a defeasance 
 of the same, or explanatory of its being desired to have the ef- 
 fect only of a mortgage, or conditional deed, is also recorded 
 therewith, and at the same time. 
 
 § 270. Recording discharge of mortgage. 
 
 A mortgage, registered or recorded, must be discharged upon 
 the record thereof, by the recording officer, when there is pre- 
 sented to him a certificate signed by the mortgagee, his per- 
 sonal representative or assignee, and acknowledged or proved, 
 and certified, in like manner as to entitle a conveyance to be 
 recorded, specifying that the mortgage has been paid, or other- 
 wise satisfied and discharged. The certificate of discharge, and 
 the certificates of its acknowledgment or proof, must be re- 
 corded; and a reference must be made to the book and page con- 
 taining such record, in the minute of the discharge of such 
 mortgage, made by the officer upon the record thereof. 
 
118 THE REAL PROPERTY LAW. 
 
 8 271. Effect of recording assignment of mortgage. 
 
 The recording of an assignment of a mortgage is not in it- 
 self, a notice of such assignment to a mortgagor, his heirs or 
 personal representatives, so as to invalidate a payment made by 
 either of them to the mortgagee. 
 
 § 272. Recording of conveyances made by treasurer of Connec- 
 ticut. 
 
 A conveyance of real property, executed at any time since 
 the tenth day of March, eighteen hundred and twenty-five, by 
 the treasurer of the state of Connecticut, acknowledged by him 
 before the secretary of state of such state, and the acknowl- 
 edgment of which is certified by such secretary of state under 
 the seal of such state, in the manner required for the acknowl- 
 edgment and certification of a conveyance within this state, may 
 be recorded in the proper office within this state, without fur- 
 ther proof thereof. 
 
 § 273. Revocation to be recorded. 
 
 A power of attorney or other instrument, recorded pursuant 
 to this article, is not deemed revoked by any act of the party by 
 whom it was executed, unless the instrument containing such 
 revocation is also recorded in the same office in which the instru- 
 ment containing the power was recorded. 
 
 § 274. Penalty for using long forms of covenants. 
 
 The recording officer of any county may charge for the re- 
 cording of an instrument containing any of the covenants 
 mentioned in sections two hundred and eighteen and two hun- 
 dred and nineteen of this chapter, at large, instead of the short, 
 forms thereof, in said sections contained, the sum of five dol- 
 lars in addition to the fees chargeable by law for such record- 
 ing. 
 
 § 275. Certain acts not affected. 
 
 Nothing contained in this article repeals or affects any act 
 providing for recording and indexing instruments affecting real 
 property in the city of New York, according to city blocks or 
 other limited areas. 
 
 § 276. Actions to have certain instruments cancelled of record. 
 
 An owner of real property or of any undivided part thereof 
 or interest therein, may maintain an action to have any re- 
 corded instrument in writing relating to the same, other than 
 those required by law to be recorded, declared void or invalid, 
 or to have the same cancelled of record as to said real prop- 
 erty, or his undivided part thereof or interest therein. 
 
THE REAL. PROPERTY LAW. 119 
 
 § 277. Officers guilty of malfeasance liable for damages. 
 
 An officer authorized to take the acknowledgment or proof of 
 a conveyance or other instrument, or to certify such proof or 
 acknowledgment, or to record the same, who is guilty of mal- 
 feasance or fraudulent practice in the execution of any duty 
 prescribed by law in relation thereto, is liable in damages to the 
 person injured. 
 
ARTICLE IX. 
 DESCENT OP REAL PROPHRTY. 
 
 Section 280. Definitions and use of terms; effect of article. 
 
 281. General rule of descent. 
 
 282. Lineal descendants of equal degree. 
 
 283. Lineal descendants of unequal degree. 
 
 284. When father inherits. 
 
 286. When collateral relatives inherit; collateral rela- 
 
 tives of equal degrees. 
 
 287. Brothers and sisters and their descendants. 
 
 288. Brothers and sisters of father and mother and their 
 
 descendants. 
 
 289. Illegitimate children. 
 
 290. Relatives of the half-blood. 
 
 291. Cases not hereinbefore provided for. 
 
 292. Posthumous children and relatives. 
 
 293. Inheritance, sole or in common. 
 
 294. Alienism of ancestor. 
 
 295. Advancements. 
 
 296. How advancements adjusted. 
 
THE REAL PROPERTY LAW. 121 
 
 § 280. Definitions and use of terms; effect of article. 
 
 The term "real property " as used in this article, includes 
 every estate, interest and right, legal and equitable in lands, ten- 
 ements and hereditaments except such as are determined or ex- 
 tinguished by the death of an intestate seized or possessed 
 thereof, or in any manner entitled thereto; leases for years, es- 
 tates for the life of another person; and real property held in 
 trust, not devised by the beneficiary. "Inheritance," means real 
 property as herein defined, descended according to the provi- 
 slons of this article; the expressions "where the inheritance shall 
 have come to the intestate on the part of the father" or 
 "mother," as the case may be, include every case where the in- 
 heritance shall hare come to the intestate by devise, gift or de- 
 scent from the parent referred to, or from any relative of the 
 blood of such parent. 
 
 When in this article a person is described as living, it means 
 living at the time of the death of the intestate from whom the 
 descent came; when he is described as having died, it means 
 that he died before such intestate. 
 
 This article does not affect a limitation of an estate by deed 
 or will, or tenancy by the curtesy or dower. 
 
 § 281. General rule of descent. 
 
 The real property of a person who dies without devising the 
 same shall descend: 
 
 1. To his lineal descendants. 
 
 2. To his father. 
 
 3. To his mother; and 
 
 4. To his collateral relatives, 
 
 as prescribed in the following sections of this article. 
 
 $ 282. Lineal descendants of equal degree. 
 
 If the intestate leave descendants in the direct line of lineal 
 descent, all of equal degree of consanguinity to him, the inheri- 
 tance shall descend to them in equal parts however remote from 
 him the common degree of consanguinity may be. 
 
 § 283. Lineal descendants of unequal degree. 
 
 If any of the descendants of such intestate be living, and any 
 be dead, the inheritance shall descend to the living, and the 
 descendants of the dead, so that each living descendant shall 
 inherit such share as would have descended to him had all the 
 •descendants in the same degree of consanguinity who shall have 
 died leaving issue been living; and so that issue of the descend- 
 ants who shall have died shall respectively take the shares 
 which their ancestor would have received. 
 
122 THE REAL PROPERTY LAW. 
 
 § 284. When father inherits. 
 
 If the intestate die without lawful descendants, and leave a 
 father, the inheritance shall go to such father, unless the inher- 
 itance came to the intestate on the part of his mother, and she- 
 be living; if she he dead, the inheritance descending on her part 
 shall go to the father for life, and the reversion to the brothers 
 and sisters of the intestate and their descendants, according to- 
 the law of inheritance by collateral relatives hereinafter pro- 
 vided; if there be no such brothers or sisters or their descend- 
 ants living, such inheritance shall descend to the father in fee. 
 
 § 285. When mother inherits. 
 
 If the intestate die without descendants and leave no father, 
 or leave a father not entitled to take the inheritance under the 
 last section, and leave a mother, and a brother or sister, or the 
 descendant of a brother or sister, the inheritance shall descend 
 to the mother for life, and the reversion to such brothers and 
 sisters of the intestate as may be living, and the descendants 
 of such as may be dead, according to the same law of inheri- 
 tance hereinafter provided. If the intestate in such case leave 
 no brother or sister or descendant thereof, the inheritance shall 
 descend to the mother in fee. 
 
 § 286. When collateral relatives inherit; collateral relatives of 
 equal degrees. 
 
 If there be no father or mother capable of inheriting the es- 
 tate, it shall descend in the cases hereinafter specified to the col- 
 lateral relatives of the intestate; and if there be several such 
 relatives, all of equal degree of consanguinity to the intestate, 
 the inheritance shall descend to them in equal parts, however 
 remote from him the common degree of consanguinity may be. 
 
 § 287. Brothers and sisters and their descendants. 
 
 If all the brothers and sisters of the intestate be living, the 
 inheritance shall descend to them; if any of them be living and 
 any be dead, to the brothers and sisters living, and the descend- 
 ants, in whatever degree, of those dead; so that each living 
 brother or sister shall inherit such share as would have de- 
 scended to him or her if all the brothers and sisters of the intes- 
 tate who shall have died, leaving issue, had been living, and so 
 that such descendants in whatever degree shall inherit the share 
 which their parent would have received if living; and the same 
 rule shall prevail as to all direct lineal descendants of every 
 brother and sister of the intestate whenever such descendants 
 are of unequal degrees. 
 
THE REAL PROPERTY LAW. 123 
 
 § 288. Brothers and sisters of father and mother and their de- 
 scendants. 
 If there be no heir entitled to take, under either of the pre- 
 ceding sections, the inheritance, if it shall have come to the in- 
 testate on the part of his father, shall descend: 
 
 1. To the brothers and sisters of the father of the intestate in 
 equal shares, if all be living: 
 
 2. If any be living, and any shall have died, leaving issue, to 
 such brothers and sisters as shall be living and to the descend- 
 ants of such as shall have died. 
 
 3. If all such brothers and sisters shall have died, to their 
 descendants. 
 
 4. If there be no such brothers or sisters of such father, nor 
 any descendants of such brothers or sisters, to the brothers and 
 sisters of the mother of the intestate, and to the descendants of 
 such as shall have died, or if all have died, to their descendants. 
 
 But, if the inheritance shall have come to the intestate on the 
 part of his mother, it shall descend to her brothers and sisters- 
 and their descendants; and if there be none, to the brothers and 
 sisters of the father and their descendants, in the manner afore, 
 said. 
 
 If the inheritance has not come to the intestate on the part of 
 either father or mother, it shall descend to the brothers and sis-» 
 ters both of the father and mother of the intestate, and their 
 descendants in the same manner. 
 
 In all cases mentioned in this section the inheritance shall de- 
 scend to the brothers and sisters of the intestate's father or 
 mother, as the case may be, or to their descendants in like man- 
 ner as if they had been the brothers and sisters of the intestate. 
 § 289. Illegitimate children. 
 
 If an intestate who shall have been illegitimate die without 
 lawful issue or illegitimate issue entitled to take, under this sec- 
 tion, the inheritance shall descend to his mother; if she be dead, 
 to his relatives on her part, as if he had been legitimate. 
 
 If a woman die without lawful issue, leaving an illegitimate 
 child, the inheritance shall descend to him as if he were legiti- 
 mate. 
 
 In any other case illegitimate children or relatives shall not 
 inherit. 
 
 § 290. Relatives of the half-blood. 
 
 Relatives of the half-blood and their descendants, shall inherit 
 equally with those of the whole blood and their descendants, 
 in the same degree, unless the inheritance came to the intestate 
 by descent, devise or gift from an ancestor; in which case all 
 those who are not of the blood of such ancestor shall be ex- 
 cluded from such inheritance. 
 
124 THE REAL PROPERTY LAW. 
 
 § 291. Oases not hereinbefore provided for. 
 
 In all cases not provided for by the preceding sections of this 
 article, the inheritance shall descend according to the course of 
 the common law. 
 
 § 292. Posthumous children and relatives. 
 
 A descendant or a relative of the intestate begotten before his 
 death, but born thereafter, shall inherit in the same manner as 
 if he had been born in the lifetime of the intestate and had sur- 
 vived him. 
 § 293. Inheritance, sole or in common. 
 
 When there is but one person entitled to inherit, he shall take 
 and hold the inheritance solely; when an inheritance or a share 
 of an inheritance descends to several persons they shall take as 
 tenants in common, in proportion to their respective rights. 
 
 | 294. Alienism of ancestor. 
 
 A person capable of inheriting under the provisions of this 
 article, shall not be precluded from such inheritance by reason 
 of the alienism of an ancestor. 
 
 | 295. Advancements. 
 
 • If a child of an intestate shall have been advanced by him, by 
 settlement or portion, real or personal property, the value there- 
 of must be reckoned for the purposes of descent and distribution 
 as part of the real and personal property of the intestate de- 
 scendible to his heirs and to be distributed to his next of kin; 
 and if such advancement be equal to or greater than the amount 
 of the share which such child would be entitled to receive of the 
 estate of the deceased, such child and his descendants shall not 
 share in the estate of the intestate; but if it be less than such 
 share, such child and his descendants shall receive so much, 
 only, ©f the personal property, and inherit so much only, of the 
 real property, of the intestate, as shall be sufficient to make all 
 the shares of all the children in the whole property, including the 
 advancement, equal. 
 
 The value of any real or personal property so advanced, shall 
 be deemed to be that, if any, which was acknowledged by the 
 child by an instrument in writing; otherwise it must be esti- 
 mated according to the worth of the property when given. 
 
 Maintaining or educating a child, or giving him money with- 
 out a view to a portion or settlement in life is not an advance- 
 ment. 
 
 An estate or interest given by a parent to a descendant by 
 virtue of a beneficial power, or of a power in trust, with a right 
 of selection, is an advancement. 
 
THE REAL PROPERTY LAW. 125 
 
 § 2M. How advancements adjusted. 
 
 When an advancement to be adjusted consisted of real prop- 
 erty, the adjustment must be made out of the real property 
 descendible to the heirs. When it consisted of personal prop- 
 erty, the adjustment must be made out of the surplus of the 
 personal property to be distributed to the next of kin. If either 
 species of property is insufficient to enable the adjustment to 
 be fully made, the deficiency must be adjusted out of the other. 
 
 ARTICLE X. 
 LAWS REPEALED; WHEN TO TAKE EFFECT. 
 
 Section 300. Laws repealed. 
 
 301. When to take effect. 
 
 | 300. Laws repealed. 
 
 Of the laws enumerated in the schedule hereto annexed, that 
 portion specified in the last column is repealed. 
 
 § 301. When to take effect. 
 This chapter shall take effect on October 1, 1896. 
 
126 
 
 THE REAL PROPERTY LAW. 
 
 SCHEDULE OF LAWS REPEALED. 
 
 Revised Statutes, part II., chapter* 1, 2, 3 .AH, except Sees. 6, 6, 
 
 7 of tit. I. of ch. 1, 
 and Sec. 63, tit II., 
 ch. 1. 
 
 chapter 7, title I AH. 
 
 Chapter. Sections. 
 
 Revised Statutes, part II. 
 Laws of — 
 
 1798 
 
 1802 
 
 1804 
 
 1805 
 
 1807 
 
 1808 
 
 1819 
 
 1829 
 
 1830 
 
 1834 
 
 1835 
 
 1839 
 
 1843 
 1843 
 
 72. 
 
 49. 
 109. 
 
 25. 
 123. 
 175. 
 
 25. 
 222. 
 171. 
 273. 
 275. 
 295. 
 
 87. 
 
 199 
 
 1843 210.' 
 
 1845 
 1845 
 1845 
 1848 
 1855 
 1857 
 1858 
 1860 
 1860 
 1860 
 1863 
 1865 
 1868 
 1870 
 1872 
 1872 
 
 109. 
 110. 
 115. 
 195. 
 547. 
 576. 
 259. 
 322. 
 345. 
 396. 
 246. 
 421. 
 513. 
 208. 
 120. 
 141. 
 
 1872 358. 
 
 1874 
 1875 
 1875 
 1875 
 1877 
 1879 
 1880 
 1880 
 1880 
 1882 
 1883 
 1884 
 1886 
 1888 
 1889 
 1890 
 1890 
 1891 
 1891 
 1891 
 1892 
 1892 
 1893 
 1893 
 1893 
 1893 
 1894 
 1894 
 1895 
 1895 
 
 261. 
 
 38. 
 336. 
 545. 
 111. 
 249. 
 300. 
 115. 
 530. 
 275. 
 
 80. 
 
 26. 
 257. 
 246. 
 
 42. 
 
 61. 
 475. 
 100. 
 172. 
 209. 
 208. 
 616. 
 123. 
 182. 
 207. 
 599. 
 315. 
 729. 
 525. 
 
 AH. 
 . All. 
 26. 
 All. 
 2. 
 AH. 
 
 All. 
 All. 
 
 All. 
 ■ All. 
 
 All. 
 5. 
 
 All. 
 
 All. 
 5. 
 
 All. 
 
 All. 
 
 All. 
 
 AH. 
 
 All. 
 
 AIL 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 AH. 
 
 All. 
 
 AH. 
 
 AH. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 All. 
 
 AH. 
 
 All. 
 
ANALYTICAL INDEX 
 
 THE REAL PROPERTY LAW 
 
 NEW YORK. 
 
 TAKING EFFECT 1ST OCTOBER, 1896, 
 
 BY 
 
 GEO. W. VAN SICLEN. 
 
INDEX. 
 
 206 
 
 95 
 
 21 
 
 63 
 
 131 
 
 80 
 
 76 
 
 71 
 
 51 
 
 67 
 
 51 
 
 67 
 
 8RCTIOK. PAOH. 
 A •»•» ished, livery of seizin has been, .... 
 
 Absolute fee ...... 
 
 when grantee of power has 
 Accumulate rents and profits, express trust to, . 
 Accumulations ....... 
 
 of re nts and profits void except as allowed 
 
 may be ordered applied to support and education of 
 
 destitute minor children ..... 52 68 
 
 Acknowledged before Oct. 1, 1896, recording of con- 
 veyances, ....... 243 109 
 
 Acknowledging officer must know or have satisfactory 
 
 evidence of identity of person , 252 112 
 
 Acknowledgments, 
 
 before IT. S. officials prior to April 1, 1896, confirmed, 
 by corporation, and form of . 
 
 by married women within the state same as if unmarried 
 by whom ........ 
 
 oan only be made by person executing conveyance 
 
 certificate of by officer taking, 
 
 conveyances executed before Oot. 1, 1896 
 
 Holland Land Co., or Pulteney estate, does not need 
 
 County Clerk's certificate 
 In Canada ....... 
 
 in foreign countries ..... 
 
 In Great Britain and Ireland .... 
 
 in other states ....... 
 
 must also be recorded or record or transcript of instru- 
 ment cannot be read in evidence 
 must be authenticated in certain canes 
 necessary to grant of fee or freehold before it can take 
 effect against subsequent purchaser or incum- 
 brancer ....... 
 
 not necessary, but great seal of the state, to letters patent 
 granting real property ..... 
 
 out of New York, before New York Commissioner or 
 Mayor of foreign oity, or any U. S. official, must be 
 under seal ....... 
 
 requisites of ....... 
 
 taken by judge of Canadian court of reoord must be au- 
 thenticated by clerk of the court 
 taken by New York Commissioner must be authenti- 
 cated by Secretary of State .... 
 
 taken by New York Commissioner out of New York and 
 
 witbln U. 8., must state day and place, 
 taken by official of one of the IT. S. or of Canada, must 
 be authenticated by Secretary of State, or clerk, reg- 
 ister, recorder or prothonotary of county, or clerk 
 of court of county having seal, 
 within the state, ....... 
 
 without the state, how reoorded when parties and certify- 
 ing officer are dead ...... 262 115 
 
 Act done in fraud of any creditor may be disaffirmed, 
 treated as void, and resisted by executor, adminis- 
 trator, reoeiver, assignee, or other trustee . . 232 106 
 Act of deceased insolvent, fraudulent, may be disaf- 
 firmed, treated as void, resisted, by creditor for 
 over $100 ....... 
 
 Aci of 1st xr may create eatate or trust 
 
 Act of trustee in contravention of trust expressed in In- 
 strument creating estate is void ... 
 Acts of husband without wife's assent do not prejudice 
 dower or jointure ...... 
 
 Acts, recording and Indexing for New York City not af- 
 fected by Real Property Law .... 
 
 257 
 258 
 25 L 
 242 
 242 
 255 
 243 
 
 113 
 113 
 112 
 109 
 109 
 112 
 109 
 
 259 
 250 
 250 
 250 
 249 
 
 114 
 111 
 111 
 111 
 111 
 
 267 
 260 
 
 117 
 114 
 
 208 
 
 95 
 
 245 
 
 110 
 
 257 
 252 
 
 113 
 
 112 
 
 260 
 
 114 
 
 260 
 
 114 
 
 256 
 
 113 
 
 260 
 
 248 
 
 114 
 111 
 
 232 
 207 
 
 107 
 95 
 
 85 
 
 72 
 
 183 
 
 89 
 
 275 
 
 118 
 
SECTION. 
 
 5 
 
 190 
 
 PAGE. 
 
 91 
 
 232 
 276 
 296 
 
 107 
 118 
 125 
 
 232 
 232 
 215 
 222 
 222 
 
 106 
 106 
 96 
 101 
 101 
 
 192 
 295 
 295 
 
 91 
 124 
 124 
 
 296 
 
 125 
 
 225 
 225 
 
 105 
 105 
 
 240 
 218 
 208 
 
 109 
 
 97 
 95 
 
 130 ANALYTICAL INDEX. 
 
 Action by state against alien's property, when suspended 
 Action for use and occupation ..... 
 
 Action to set aside act, conveyance, transfer or agree- 
 ment of deceased insolvent made In fraud of cred- 
 itors, may be maintained by creditor for over $100 
 with 'ut first obtaining judgment 
 Actions to have certain instruments cancelled of record 
 Adjustment of advancements 
 Administrator 
 
 may have damages for fraudulent interference with real 
 property of deceased .... 
 
 may disaffirm fraudulent act 
 not to satisfy mortgage, but heir or devisee 
 of grantee or mortgagee, covenants to benefit of, 
 of grantor or mortgagor, covenants to bind, 
 or executor of life tenant may recover portion of rent 
 accrued before death .... 
 
 Advancements ...... 
 
 how adjusted ...... 
 
 from real property must be adjusted from surplus of 
 real property, and from personal property from 
 surplus of personal property if possible 
 Adverse possession does not prevent mortgaging prop- 
 erty ........ 
 
 renders a grant absolutely void .... 
 
 Affecting the title to real property, any instrument except 
 will, lease for not over 3 years, executory contract, 
 and power of attorney to convey, is a conveyance . 
 Against grantor's acts, covenants 
 Agent, lawful, may subscribe grant of fee or freehold 
 Agreement 
 
 of ancestor or testator binds heir or devisee only to ex- 
 tent of real properly descended or devised . . 217 97 
 that whole sum shall become due in mortgages and 
 
 bonds ........ 219 98 
 
 in fraud of creditors by deceased Insolvent may be dis- 
 affirmed, treated as void, resisted, by creditor for 
 over $100, by exeoutor, administrator, reoeiver, 
 assignee, or other trustee .... 232 107 
 
 for occupation in New York City not specifying dura- 
 tion, shall continue until May 1st next after 
 possession ....... 202 93 
 
 power of courts of equity to co mpel specific performance 
 
 of, not abridged by Article m, 
 agreements in mortgages and bonds .... 
 
 Albany County, Article VIII., does not apply to leases 
 for life or lives, or for years heretofore made [1 
 
 Oct., 1896] 
 
 Alien 
 
 holder's liabilities .... 
 
 how may acquire and transfer .... 
 
 may hold, convey and devise for six years 
 
 resident, may make deposition .... 
 
 title through .... 
 
 Alienation 
 
 of trust interest ....... 
 
 period of suspension dates from time of oreation of 
 
 power, not from date of instrument executing 
 suspension of power of ...... 
 
 Alienism of ancestor shall not preclude person capable 
 of inheriting under Article IX. .... 
 
 Alien's citizen wife may hold, convey, etc 
 heirs inherit, when, .... 
 
 widow entitled to dower, when, .... 
 
 Already created or vested estates are subject to & 56 
 Altered or impaired by Real Properly Law, nothing that 
 
 h as tak en effect Before Oct. 1, 1896 
 Alternative, future estates maybe created in the 
 Ancestor, alienism of, shall not preolude person capable 
 
 of inheriting under Article IX .... 294 124 
 
 Annuitants, express trust to sell, mortgage or lease for 
 
 benefit of, ...... . 76 71 
 
 Anticipation of direoted accumulation of rents and 
 
 profits 52 68 
 
 Apply rents and profits to use of person during life or 
 
 shorter term, express trust to, ... 76 71 
 
 234 
 219 
 
 107 
 
 98 
 
 240 
 
 109 
 
 8 
 5 
 5 
 
 4 
 7 
 
 61 
 60 
 60 
 60 
 61 
 
 83 
 
 72 
 
 158 
 32 
 
 84 
 64 
 
 294 
 
 6 
 
 5 
 
 5 
 
 56 
 
 124 
 61 
 60 
 60 
 68 
 
 1 
 41 
 
 66 
 86 
 
KEAL PROPERTY LAW. 
 
 131 
 
 Appointment of successor on resignation or removal of 
 trustee ...... 
 
 Apportionable, rent, when, .... 
 
 Apprehension of insolvency cause for removal of trustee 
 Appurtenances and all right and estate, grant of, 
 Appurtenanoes and estate of testator and grantor, trus 
 
 tee's or executor's deed of 
 Article 
 
 I. Tenure of Real Property 
 If. Creation and Division of Estates 
 III. IXses and Trusts ..... 
 
 IV. Powers ... 
 
 V. Dower ... 
 
 Y . Landlord and Tenant 
 VII, Conveyances and mortgages 
 VIII. Recording Instruments Affecting Real Prop> 
 erty ....... 
 
 IX. Descent of Real Property 
 X. IJaws Repealed ; When to take effect 
 Article. 
 
 Ill, §§70 to 73 do not affect trusts arising by implication, 
 nor prevent creation of express trust authorized by 
 Real Property Law ...... 
 
 IV., after 1 Oct., 1896, governs powers affecting real prop- 
 erty ........ 
 
 does not extend to simple power of attorney to convey 
 
 governs execution of power directed by insufficient 
 
 instrument ....... 
 
 governs intentions of grantor of power 
 VII., does not abridge powers of courts of equity to compel 
 specific performance . . . . . 
 
 does not affect or impair title of bona-flde purchaser 
 or encumbranoers without notice 
 VIII., does not apply to leases f<r life or lives or for years 
 made heretofore [1 Oct., 1896] in counties of 
 Albany, Ulster, Sullivan, Herkimer, Dutchess, 
 Columbia, Delaware or Sohenectady . 
 IX., does not affect limitation by deed or will or tenancy by 
 the ourtesy, or dower .... 
 
 Assent of intended wife in jointure 
 
 in pecuniary provisions .... 
 
 Assessments overdue, whole principal to fall due in 
 mortgages and bonds .... 
 
 Assignee 
 
 for benefit of creditors takes a beneficial trust power 
 
 may compel execution of trust power where beneficiary' 
 
 interest is assignable .... 
 
 may disaffirm any fraudulent act 
 of lessee has same remedies as lessee had, except on 
 covenants against incumbrances, or of title or pos- 
 session ...... 
 
 of lessor has same remedies as lessor had 
 of mortgage, lease, or other conditional estate is a 
 "purchaser" 
 Assigning any estate or Interest, any instrument exoept 
 will, lease for not over three years, executory con- 
 tract, and power of attorney to convey, is a "con- 
 veyance" ....... 
 
 Assignment 
 
 of mortgage carries power to sell 
 
 record of, no notice to mortgagor .... 
 
 with intent to hinder, delay or defraud creditors void . 
 Assigns 
 
 conveyance void as to, if void as to creditor, purchaser 
 or incumbrancer ...... 
 
 of grantee or mortgagee, benefit of . 
 of grantor or mortgagor, covenants to bind. 
 Association, damages for fraudulent interfering with 
 
 real property of insolvent . 
 
 Assurance, covenant of further ..... 
 
 in mortgage ....... 
 
 Attestation or acknowledgment of grant of fee or free- 
 hold before It oan take effect against subsequent 
 purchaser or incumbrancer . . , . 
 
 Attorney-general shall represent beneficiaries and en- 
 force trusts where they are indefinite or uncertain, 
 
 SECTION. 
 
 I' AGE. 
 
 I 
 
 92 
 
 74 
 
 192 
 
 91 
 
 i 92 
 
 74 
 
 220 
 
 101 
 
 - 
 
 221 
 
 101 
 
 
 59 
 
 .... 
 
 62 
 
 .... 
 
 69 
 
 .. , * 
 
 76 
 
 .... 
 
 86 
 
 
 90 
 
 .... 
 
 91 
 
 
 108 
 
 .... 
 
 120 
 
 .... 
 
 125 
 
 73 
 
 240 
 
 240 
 
 240 
 
 126 
 
 271 
 227 
 
 228 
 222 
 222 
 
 232 
 218 
 219 
 
 208 
 
 70 
 
 110 
 
 no 
 
 78 
 78 
 
 149 
 152 
 
 83 
 83 
 
 234 
 
 107 
 
 230 
 
 106 
 
 109 
 
 280 
 177 
 178 
 
 121 
 
 88 
 88 
 
 219 
 
 98 
 
 144 
 
 82 
 
 142 
 232 
 n 
 
 82 
 106 
 
 I- 
 
 193 
 193 
 
 91 
 91 
 
 109 
 
 109 
 
 i?a 
 
 105 
 
 105 
 J 01 
 101 
 
 106 
 97 
 
 98 
 
 95 
 
SECTION. 
 
 PAGE. 
 
 93 
 
 75 
 
 187 
 244 
 
 89 
 11* 
 
 260 
 259 
 260 
 
 114 
 114 
 114 
 
 260 
 260 
 261 
 261 
 79 
 
 114 
 114 
 114 
 114 
 
 71 
 
 211 
 116 
 139 
 
 96 
 
 . 78 
 
 82 
 
 83 
 
 72 
 
 80 
 
 72 
 
 38 
 
 82 
 
 132 ANALYTICAL INDEX. 
 
 or where no trustee named under grant or devise 
 for charitable purposes 
 Attorney 
 
 of married woman may release her dower 
 
 recording executory contracts, and powers of 
 
 power of, to convey, not considered revoked unless 
 
 revocation reoorded . • 273 118 
 
 Attornment 
 
 by tenant to stranger absolutely void . . . 194 91 
 
 to grantee not requisite to validity of conveyance of 
 
 property oecupied by tenant .... 213 96 
 
 Authentication of acknowledgment or proof 
 by Canadian judge must be by clerk of the court 
 by county clerk ... ... 
 
 by N. T. commissioner must be by Secretary of State . 
 by official of one of the XT. S., or Canada, must be by Sec- 
 retary of State of the state, or by clerk, register, 
 recorder, or prothonotary of county, or clerk of 
 court of county having seal 
 in certain cases .... 
 
 contents of certificate of .... 
 
 Canadian certificate 
 Authorized trust, when valid as a power 
 Bargain and sale, deeds of may continue to be used, 
 and are grants .... 
 
 Beneficial power ..... 
 
 subject to creditors .... 
 
 estate, or interest, given by parent by virtue of bene- 
 ficial power, with a right of seleotion. is an ad- 
 vancement ....... 295 124 
 
 Beneficiary 
 
 in trust for receipt of rents and profits, who is entitled 
 
 to remainder in whole or part, may release 
 may enforce performance of express trust 
 more than one, distribution when .... 
 
 must have notice of intention of court to appoint a per- 
 son to execute trust on death of last trustee . 91 74 
 of any other trust than to receive and apply rents and 
 
 profits may transfer right and interest . . 83 72 
 
 of express trust to receive and apply rents and profits can 
 
 not assign or transfer the right ... 83 72 
 
 of express trust takes no legal estate or interest in the 
 
 property ....... 80 72 
 
 Beneficiaries indefinite or uncertain under grant or 
 devise for charitable uses, attorney-general shall 
 represent ....... 93 75 
 
 of trust share equally on death of trustee with power of 
 
 selection unexecuted ..... 140 82 
 
 Benefit of creditors 
 
 an executor, administrator, reoeiver, assignee or other 
 trustee, may disaffirm any fraudulent act, for bene- 
 fit of creditors, including himself . . . 232 106 
 creditor for over $100 may disaffirm any fraudulent 
 aot of deceased insolvent .... 
 
 execution of beneficial power m&y be adjudged for 
 termination of trusts for . . . . 
 
 Benefit of trust estate, court may authorize mortgage 
 
 or sale for ....... 85 72 
 
 Benevolent uses, conveyance or deviee for, not in- 
 valid for indefiniteness or uncertainty of bene- 
 ficiaries ....... 93 75 
 
 Best interest of trust estate 
 
 court may authorise mortgage or sale . . 85 72 
 
 court may order sale if an undivided share or part . 85 72 
 
 Block system of recording and indexing N. Y. City, aots 
 
 for not aff oted by this Real Property Law . 275 118 
 
 Board of directors must authorize officer to acknowl- 
 edge conveyance ...... 258 113 
 
 Bona fide purchaser or incumbrancer without notice. 
 title not affected or impaired by Article VII. 
 power is a lien against from time of record 
 protected ........ 
 
 bona fide subsequent purchaser, unrecorded convey- 
 ance void as to ...... 241 109 
 
 Bonds secured by mortgages on real property, covenants 
 
 and agreements in . . , . . 219 98 
 
 232 
 
 107 
 
 139 
 
 82 
 
 90 
 
 74 
 
 229 
 
 106 
 
 127 
 
 80 
 
 75 
 
 71 
 
REAL PROPERTY LAW. 
 
 133 
 
 Book and page and time of record most be indorsed on 
 instrument ....... 
 
 Book*, recording, for deeds and mortgages 
 Breach of lease, tenant not liable to grantee before 
 notice of conveyance ..... 
 
 Brothers and sisters, and their descendants, how take by 
 descent ........ 
 
 take by descent per stirpes and not per oapita . 
 of father and mother and their descendants, how take 
 by descent ....... 
 
 Building, a trustee may be authorized to pay for, at end 
 of lease ....... 
 
 destroyed or injured by elements or other causes, so as 
 to be untenantable, or unfit for occupancy, tenant 
 may surrender, if not his fault, and pay no rent 
 thereafter ....... 
 
 buildings insured under mortgage . 
 By whom conveyance must be acknowledged or proved 
 Canada, acknowledgments and proofs in, . 
 Canadian certificate of authentication of acknowledgment 
 or proof, contents of, .... . 
 
 judge of court of record, acknowledgment or proof be- 
 fore must be authenticated by clerk of oourt 
 official, acknowledgment or proof before must be 
 authenticated by clerk, register, recorder or pro- 
 thonotary of county, or by clerk of court having seal 
 Cancelled of record, action to have certain instruments 
 Capacity 
 
 of married woman to take power 
 
 to grant a power .... 
 
 to hold real property 
 to take and execute a power 
 to take under a power 
 to transfer real property 
 Cases not hereinbefore provided for, common law governs 
 descent .... 
 
 Certain acts not affected 
 Certain deed* declared grants . 
 
 deemed mortgages 
 Certain powers create a fee 
 Certain uses and trusts abolished . 
 Certified copies 
 
 of conveyance or mortgage of several parcels may be re 
 
 corded in any county where paroel situate . 
 of instruments in Secretary of State's office may be re 
 corded ........ 
 
 of record or recorded instrument may be recorded again 
 Certificate of acknowledgment or proof 
 by officer taking it 
 
 contents of certificate of authentication of 
 tontents of Canadian authentication 
 must be recorded voiih instrument, or record or tran 
 
 script can not l>e read in evidence 
 of deed of Holland Land Co., or of Pulteney Estate, does 
 
 not need county clerk's certificate 
 taken out of N. T. and in U. S. by JT. T. Commissioner 
 must state day and place .... 
 
 taken out of state by N. T. Commissioner, or by XT. S. 
 official, must be under seal 
 Certificate of authentication, contents of 
 Chapter I does not alter or impair any vested estate, 
 interest, or right, nor the construction of any con- 
 veyance, will or other instrument which has taken 
 effect before 1 Oct., 1896 .... 
 
 Charge on real property 
 
 express trust to sell, mortgage or lease for purpose of eat- 
 not adjudged fraudulent solely for want of valuable 
 consideration ...... 
 
 void as to creditor, purchaser or incumbrancer is void as 
 
 to their heirs, successors, representatives or assigns 
 
 Charitable uses, conveyance or devise for, not invalid for 
 
 indeflnlteness, or uncertainty of beneficiaries 
 " Chattel interest " is included in term " estate " or "in- 
 terest in real property " . 
 Chattel interests, estates at will, or by sufferance are, . 
 
 SECTION. 
 
 FAGB. 
 
 268 
 264 
 
 117 
 116 
 
 213 
 
 96 
 
 287 
 287 
 
 122 
 122 
 
 288 
 
 123 
 
 86 
 
 73 
 
 197 
 219 
 242 
 250 
 
 92 
 
 98 
 
 109 
 
 111 
 
 261 
 260 
 
 260 
 276 
 
 122 
 119 
 
 2 
 121 
 159 
 
 2 
 
 291 
 275 
 211 
 269 
 130 
 71 
 
 247 
 
 246 
 
 247 
 
 255 
 261 
 261 
 
 267 
 
 259 
 
 256 
 
 257 
 261 
 
 114 
 114 
 
 114 
 
 118 
 
 79 
 79 
 60 
 79 
 84 
 60 
 
 124 
 
 118 
 
 96 
 
 117 
 
 80 
 
 70 
 
 110 
 
 110 
 110 
 
 112 
 114 
 
 114 
 
 117 
 
 114 
 
 113 
 
 113 
 114 
 
 60 
 
 76 
 
 71 
 
 229 
 
 106 
 
 228 
 
 105 
 
 93 
 
 75 
 
 205 
 23 
 
 96 
 63 
 
r.u 
 
 ANALYTICAL INDEX. 
 
 Chattel real, remainder of on determination of term of 
 years .... 
 
 when estate for life of third person it 
 "Chattels real" except lease for not over 3 years in 
 eluded in term "real property" in Article VIII. 
 estates for years are ..... 
 
 limitations of ..... 
 
 Children, illegitimate, when inherit 
 Citizen of United States 
 
 capable of holding realproperty 
 
 capable of taking by descent, devise or purchase 
 
 " C laint " included in grant of appurtenances and all 
 
 rights ........ 
 
 Clerk of the County is recording officer, except in New 
 York, Kings and Westchester, where it is the regis 
 ter of the county 
 Collateral relatives inherit, when 
 
 of equal degree, inherit in equal parts 
 •llat 
 
 Collateral warrenties have been abolished 
 Columbia County, Article Till, does not apply to leases 
 for life or lives, or for years, heretofore made 
 
 [1 Oct., 1896] 
 
 Commissioner for New York 
 
 Acknowledgment or proof by, must be authenti- 
 cated by Secretary of State .... 
 
 out of If. Y. and in XT. S., must state day and plaoe in 
 
 certificate of acknowledgment . 
 out of If. T. must affix seal to acknowledgment 
 Committee of estate takes a beneficial trust power 
 Common, estate in, ..... 
 
 Common inheritance, or sole 
 
 Common law governs descent in oases not provided for 
 
 in the Real Property Law 
 Common, when estate in, and when joint tenancy 
 Compel specific performance, powers of courts of 
 
 equity to. not abridged by Article Til. 
 Compelling witnesses to conveyance to testify 
 Compensation, landlord may recover, for use and occu- 
 pation ..... 
 
 Computation of term of suspension . 
 Condition, power subject to ... . 
 
 Conditional estate, assignee of is a purchaser 
 Conditional limitations .... 
 
 Conditions of execution of power, grantor's intent to 
 be observed ...... 
 
 nominal may be disregarded .... 
 
 Connecticut, conveyances by treasurer of 
 Connection of owners of an estate 
 Consanguinity 
 
 of equal degree, collateral relatives take equal parts by 
 descent ...... 
 
 lineal descendants take equal parts 
 
 of unequal degree, lineal descendants take per stirpes 
 
 ana not per capita ...... 
 
 Consent of all requisite, or of survivor, to execution of 
 power ........ 
 
 Consent of grantor, or third person, must be written in 
 
 or endorsed on instrument executing power 
 Consideration paid by one, grant to another, fraudulent 
 
 as to creditors, at that time, of former 
 Construction 
 
 of covenants in mortgages and bonds 
 in grants of freehold interests 
 of executor's grant of appurtenances and of estate of 
 testator and grantor .... 
 
 of grant of appurtenances and all rights of grantor 
 
 of powers governed after 1 Oot., 1896, by the Real 
 
 Property Law ...... 
 
 of trustee's grant of appurtenances and of estate of tes 
 tator and grantor ...... 
 
 Constructive notice, but not to he read In evidenoe, the 
 
 record of conveyance, and certificates of proof, 
 
 where witnesses are dead 
 
 Contents of certificate of authentication 
 
 Contingency improbable, yet future estate valid 
 
 remainder may be limited on . 
 
 now. 
 
 PAOB. 
 
 40 
 
 24 
 
 65 
 63 
 
 240 
 23 
 39 
 
 289 
 
 75 
 
 63 
 
 65 
 
 123 
 
 2 
 2 
 
 60 
 60 
 
 220 
 
 101 
 
 240 
 
 286 
 286 
 217 
 
 109 
 
 122 
 
 122 
 
 97 
 
 240 
 
 260 
 
 109 
 
 114 
 
 256 
 257 
 144 
 55 
 293 
 
 113 
 113 
 
 82 
 
 68 
 
 124 
 
 291 
 56 
 
 124 
 68 
 
 234 
 254 
 
 107 
 112 
 
 190 
 158 
 134 
 240 
 43 
 
 91 
 84 
 81 
 109 
 66 
 
 152 
 
 151 
 
 272 
 
 55 
 
 83 
 
 83 
 
 118 
 
 68 
 
 286 
 
 282 
 
 122 
 121 
 
 283 
 
 121 
 
 154 
 
 84 
 
 153 
 
 83 
 
 74 
 
 70 
 
 219 
 218 
 
 98 
 
 97 
 
 221 
 220 
 
 101 
 101 
 
 11* 
 
 78 
 
 221 
 
 101 
 
 263 
 
 261 
 
 42 
 
 43 
 
 115 
 
 114 
 
 66 
 
 66 
 
REAL PROPERTY LAW. 135 
 
 Contingent estate, creation of ... 
 
 Is included in term "estate" or "Interest" in real 
 property ...... 
 
 contingent, future estate when 
 Contingent remainder in fee on prior remainder in 
 fee, when ....... 
 
 on term of years ....... 
 
 Contract, by alien ....... 
 
 executory, for sale or purohase of lands is not a " con- 
 veyance" ....... 
 
 executory, and powers of attorney, recording 
 
 to sell, or lease for more than one year, void unless 
 written ...... 
 
 Conveyance 
 
 acknowledged or prosed may he recorded 
 
 before 1 Oct. 1898, recording or reading in evidence of 
 
 without the state, how recorded when parties and certi- 
 fying officer are dead .... 
 
 acknowledgments and proof of within the state 
 
 before XT. S. official prior to 1 April, 1896, confirmed 
 
 by alien ....... 
 
 by corporation, hoard of directors must authorize 
 acknowledgment ...... 
 
 by deceased insolvent, fraudulent, may be disaffirmed, 
 treated as void, resisted, by creditor for over 
 $100 
 
 by patriotic Indian ..... 
 
 by sheriff, or referee, must be indexed also against each 
 person whose right, title, or interest was sold 
 
 by tenant for life or years, of greater estate than he pos- 
 sesses does not work forfeiture, but passes all he 
 has ........ 
 
 by treasurer of Connecticut ..... 
 
 by trustee in contravention of trust expressed in instru- 
 ment creating estate is void .... 
 
 by whom acknowledged or proved .... 
 
 compelling witness to. to testify .... 
 
 does not pass greater estate than srantor had 
 
 includes every written instrument by which title may be 
 
 affected 210 109 
 
 includes every written instrument except will, lease for 
 not over three years, executory contract, and power 
 of attorney to convey ..... 240 109 
 
 includes instrument in execution of a power, although 
 
 power of revocation only .... 240 109 
 
 in fee, made before 9 April, 1805, or after 14 April, 
 
 1860. § 193 does not apply .... 193 91 
 
 intended as security, grantee derives no benefit from 
 record unless defeasance also recorded 
 
 no covenants implied in ..... 
 
 not acknowledged or proved before 1 Oct., 1896, yet 
 may be ....... 
 
 not adjudged fraudulent solely for want of valuable 
 consideration ...... 
 
 not recorded, void as to subsequent bona fide purchaser 
 
 of real property by feoffment, with livery of seizin, has 
 
 been abolished ...... 206 95 
 
 of several parcels, certified copy may be recorded in any 
 
 county where parcel situate .... 247 110 
 
 of trust property by trustee by order of court must be on 
 
 notice to beneficiary ..... 87 73 
 
 or assignment, with intent to hinder, delay or defraud 
 
 creditors, void .... . 227 105 
 
 or devise, for religious, educational, charitable or be- 
 nevolent uses not invalid for indefiniteness or uncer- 
 tainty of beneficiaries ..... 
 
 proof of, where witnesses are dead .... 
 
 recording of > . 
 
 short forms of .... 
 
 to alien ........ 
 
 to trustee omitting an express trust, shall be absolute as 
 to subsequent creditors and purchasers without 
 notice ........ 
 
 under $ 231 valid from time power of revocation vests 
 
 the term in Article Til. includes every Instrument ex- 
 cept a Will 205 95 
 
 SECTION. 
 40 
 
 PAGE. 
 65 
 
 205 
 30 
 
 95 
 64 
 
 32 
 36 
 
 5 
 
 64 
 65 
 60 
 
 240 
 224 
 
 109 
 110 
 
 224 
 
 105 
 
 241 
 243 
 
 109 
 109 
 
 262 
 
 248 
 
 257 
 
 5 
 
 115 
 
 110 
 
 113 
 
 60 
 
 258 
 
 113 
 
 232 
 9 
 
 106 
 61 
 
 265 
 
 116 
 
 212 
 272 
 
 96 
 118 
 
 85 
 242 
 254 
 210 
 
 72 
 109 
 112 
 
 96 
 
 269 
 216 
 
 117 
 97 
 
 243 
 
 109 
 
 229 
 241 
 
 106 
 109 
 
 93 
 
 75 
 
 263 
 
 115 
 
 241 
 
 109 
 
 223 
 
 102 
 
 5 
 
 60 
 
 84 
 
 72 
 
 231 
 
 106 
 
136 ANALYTICAL INDEX. 
 
 SECTION. riSB. 
 
 void as creditors, purchasers and encumbrancers, void 
 
 as to their heirs and assigns .... 228 106 
 
 void, with intent to defraud purcriasers and encum- 
 
 Drancers ....... 226 105 
 
 wUhpower to revoke, determine, or alter, by grantor or 
 by tblrd person, void against subsequent bona fide 
 purcriasers or encumbrancers, although not ex- 
 pressly revoked ...... 231 106 
 
 written when necessary ..... 207 95 
 
 Conveyances and Mortgages Article Til. 94 
 
 conveyance, see also Deeds 
 Copies of instruments which are In Secretary of State's 
 
 office may be certified and recorded . . . 246 110 
 
 copies of record or of recorded instrument, certified, 
 
 may be again recorded ..... 247 110 
 
 copy of conveyance or mortgage affecting several par- 
 eels, certified, may be recorded in any county 
 where parcel situate. ... 247 110 
 
 Corporation, acknowledgment by, and form of . 258 113 
 
 damages for fraudulently interfering with real property 
 
 of insolvent ....... 232 106 
 
 Connty clerk 
 
 his authentication, when necessary , . . 259 114 
 
 his certificate not necessary to Holland Laud Co., nor 
 
 Pulteney estate 259 114 
 
 his certificate, when necessary .... 259 114 
 
 is " recording officer " except in New York, Kings, or 
 
 Westchester, where it is the register of the county 240 109 
 
 may charge $5 in addition to reg ular fees for recording 
 
 Instrument using long forms of covenants . 274 118 
 
 Court 
 
 becomes trustee on death of last trustee 
 
 has power to supply defective execution of power 
 
 may accept resignation of trustee .... 
 
 may appoint person to exeoute trust, on notice to bene- 
 ficiary ........ 
 
 may appoint receiver of a trust, pending appointment 
 of new trustee ...... 
 
 successor on resignation or removal of trustee 
 
 may authorize mortgage or sale of trust estate for its best 
 interest orfor preserving or improvingit 
 
 may authorize trustee to lease and to covenant to buy 
 buildings ....... 
 
 to lease for over five years ..... 
 
 may confirm trustee's lease for over five years made be- 
 fore 4 June, 1895 
 
 may directmaintenance or education of destitute minor, 
 from accumulation of rents and profits 
 
 may enlarge time of widow to elect as to do wer 
 
 may order sale of undivided share whioh is trust estate 
 
 may remove trustee for cause ..... 
 
 must execute power where testator omitted to designate 
 
 bywhom 141 82 
 
 shall have control ot property where no trustee named 
 
 in grant or devise to charitable uses . 93 75 
 
 shall have legal title to property where no trustee named 
 
 in grant or devise for charitable pnrposes . . 93 75 
 
 Courts of equity, powers to compel specific performance 
 
 not abridged by Artiole Til. .... 234 107 
 
 Covenant 
 
 against grantor's acts ...... 218 97 
 
 of ancestor or testator binds heir or devisee only to 
 extent of real property descended or devised 
 
 of freedom from encumbrances .... 
 
 of further assurance ..... 
 
 of further assurance of title by mortgagor 
 
 of good right to convey ...... 
 
 of quiet enjoyment ...... 
 
 of seizin . ....... 
 
 of warranty of title ..... 
 
 of warranty of title in mortgagee .... 
 
 that grantor has not encumbered .... 
 
 that mortgagee shall havepower to sell In default of pay- 
 ment ........ 
 
 that whole sum shall become due in mortgages and bonds 
 
 to insure under mortgage ... 
 
 152 
 92 
 
 83 
 74 
 
 91 
 
 74 
 
 92 
 92 
 
 74 
 
 74 
 
 85 
 
 72 
 
 86 
 86 
 
 73 
 73 
 
 86 
 
 73 
 
 52 
 
 181 
 
 85 
 
 92 
 
 68 
 88 
 72 
 74 
 
 217 
 
 97 
 
 218 
 
 97 
 
 218 
 
 97 
 
 219 
 
 98 
 
 218 
 
 97 
 
 218 
 
 97 
 
 218 
 
 97 
 
 218 
 
 97 
 
 219 
 
 100 
 
 218 
 
 97 
 
 219 
 
 99 
 
 219 
 
 98 
 
 219 
 
 99 
 
SECTION. 
 
 FAGH 
 
 219 
 
 100 
 
 219 
 
 90 
 
 214 
 
 96 
 
 193 
 
 91 
 
 218 
 
 97 
 
 214 
 
 96 
 
 219 
 
 98 
 
 216 
 
 97 
 
 274 
 
 91 
 
 222 
 
 101 
 
 222 
 
 101 
 
 REAL PROPERTY LAW. 137 
 
 to keep buildings insured, in mortgage 
 
 to pay, in mortgage ...... 
 
 to pay Bum secured, not implied In mortgage 
 Orcnanu 
 
 against encumbrances, or relating to title or possession, 
 do not pass to benefit of lessee, bis assignee, or per- 
 sonal representative as against lessor, his grantee 
 or assignee ...... 
 
 in grants of freehold, construction of 
 
 in mortgages ...... 
 
 in mortgages and bonds, construction of . 
 
 not impaed in a conveyance .... 
 
 penalty S5 for using long forms of . 
 
 to benefit representatives of grantee or mortgagee 
 
 to bind representatives of grantor or mortgagor 
 Covin, crime, laches or default of husband do not preju- 
 dice wife's dower or jointure .... 183 89 
 Creatine any estate, or interest, any instrument, except 
 will, lease for not over 3 years, executory contraot, 
 or power of attorney to convey, is a "convey- 
 ance" 240 109 
 
 Creation and Division of .Estates ■ Article II. 62 
 
 creation of future and contingent estates ... 40 65 
 
 creation of powers governed after 1 Oct., 1896, by Artiole 
 
 IV 110 78 
 
 creator of trust may declare to whom property shall be- 
 long on failure or termination of trust . . 81 72 
 
 may grant or devise property subject to execution of 
 
 the trust . 81 72 
 
 Creditor/or oner $100 may disaffirm act of deceased in- 
 solvent 232 106 
 
 need not first obtain judgment oil claim before maintain- 
 ing action to set aside fraudulent deed or agree- 
 ment of deceased insolvent debtor . . . 232 106 
 Creditors 
 
 beneficial power is subject to claims of . . . 139 82 
 
 can claim surplus income of trust property . 78 71 
 
 conveyance, or assignment void, with intent to hinder, 
 
 d"lay or defraud 227 105 
 
 conveyance void as to, is void as to their heirs or assigns 228 105 
 
 execution of beneficialpower may be adjudged for benent 
 
 of . 139 82 
 
 grant to another, where consideration paid by debtor at 
 
 that time, presumed fraudulent against . . 74 70 
 
 may compel execution of trust power where beneficiary's 
 interest is assignable ..... 
 
 power is a lien against, from time of record 
 
 subsequent, without notice, protected against express 
 trust not declared in in conveyance to trustee . 
 
 termination of trusts for benefit of .... 
 Crime, laches, default or covin of husband do not preju- 
 dice wife's dower or jointure .... 
 C rop in land held in dower, widow may bequeath 
 "Curtesy "included in grant of appurtenances and all 
 
 estate 220 101 
 
 Damages 
 
 against officer guilty of malfeasance or fraudulent 
 
 practice .... . . 277 119 
 
 and double rent where tenant holds over after 30 days' 
 
 notice to quit. No equitable defence to this . . 200 93 
 
 for fraudulent interference with real property of deceased, 
 or of insolvent corporation, association, partner- 
 ship, or individual 232 107 
 
 Dates 
 
 12 July, 1782, Fee tail as it existed before, shall be 
 
 simple fee ....... 22 63 
 
 9 April, 1805, Conveyance in fee made before, § 193 
 
 does not apply ...... 193 91 
 
 7 Maroh, 1809, Conveyance by patriotic Indian, or 
 
 belrs, after, valid 9 61 
 
 10 Maroh, 1825, Conveyance may be recorded executed 
 
 by treasurer of Conn., since .... 
 31 Dec, 1829, Powers abolished as they existed 
 1 Jan'y, 1830, Estate of trustee existing, not divested 
 14 April, 1860, Conveyance in fee made after, § 193 
 
 does not apply ...... 193 91 
 
 142 
 
 127 
 
 82 
 80 
 
 84 
 90 
 
 72 
 
 74 
 
 183 
 
 185 
 
 89 
 89 
 
 272 • 
 
 118 
 
 110 
 
 78 
 
 72 
 
 70 
 
138 ANALYTICAL INDEX. 
 
 4 June, 1895, Leases for over 5 years made by trustee 
 
 before, may be confirmed by court ... 86 73 
 
 1 April, 1896, Proof in due form before TJ. 8. Official 
 
 prior to, confirmed ..... 257 113 
 
 1 Oct., 1896. Article VIII. does not apply to leases for 
 life or lives or for years heretofore made in conn- 
 ties of Albany, Ulster, Sullivan, Herkimer, 
 Dutchess, Columbia. Delaware, or Schenectady . 240 109 
 
 ibid Nothing altered or impaired that has taken effect 
 
 before ........ 1 60 
 
 ibid Proving or acknowledging conveyances executed 
 
 before ........ 243 109 
 
 ibid Eeal Property Law takes effect . . . 300 125 
 
 ibid Recording, or reading in evidence, of conveyances 
 
 acknowledged or proved before . . . 243 109 
 
 ibid Rules of law now in force as to delivery of deeds 
 
 apply to grants hereafter executed . . . 209 95 
 
 Death 
 
 of last trustee, trust estate not to descend to his heirs . 91 74 
 
 trust estate vests in Supreme Court ... 91 74 
 
 of testator is time of isreation of expectant estate by 
 
 devise ........ 54 68 
 
 of trustee, withrightqf selection, unexecuted, execution 
 
 of power on death ... . . 140 82 
 
 Deceased, damages for fraudulently interfering with 
 
 real property of .... . . 232 206 
 
 Deceased insolvent, creditor for over $100 may dis- 
 affirm fraudulent act of ..... 232 106 
 
 Declaration of trust may he proved by writing sub- 
 scribed by person dec iaring . . . 207 95 
 Dead parties and certifying officer to conveyance 
 acknowledged or proved without the state, how 
 recorded ....... 262 115 
 
 Deed 
 
 executor's, short form of ..... 223 102 
 
 intended as security, mortgagee derives no benefit from 
 
 reoord unless defeasance also recorded 
 limitation by, not affected by Article IX. (Descent) 
 with full covenants, short form of . 
 Deed, see also conveyance 
 Deeds 
 
 acknowledgments or proofs of before U. S. official prior 
 to 1 April, 1896, confirmed .... 
 
 and mortgages, short forms of . 
 
 certain, deemed mortgages ..... 
 
 of bargain and sale, and of lease and release, are grants 
 and may continue to be ustd .... 
 
 recording books for mortsrapes and ° 
 
 rules of law as to delivery of, apply to grants here- 
 after ....... 
 
 Default, covin, crime or laches of husband do not pre- 
 judice wife's dower or jointure .... 
 
 default in payment of debt, power to sell in mortgage 
 
 of interest, principal duo in mortgages aDd bonds 
 
 of tax or assessment, principal due in mortgages and 
 
 bonds ........ 219 98 
 
 Defeasance must be also recorded, or grantee under 
 deed intended as security derives no benefit from 
 reoord . . ..... 269 117 
 
 Defective execution of power, purchaser under, re- 
 lieved 160 84 
 
 Deficiency in surplus of r«al or personal property in 
 adjusting advancement must be made up out of the 
 other speoies ...... 
 
 Definition of grantor, grantee, in relation to a power 
 definition of a power ...... 
 
 Definitions 
 
 and effect of Article TILT. {Recording) 
 
 and use of tenrs, effect of Artic le IX. (Descent\ 
 
 and use of terms in Article VII {conveyances and mort- 
 
 269 
 280 
 223 
 
 117 
 121 
 102 
 
 257 
 223 
 269 
 
 113 
 
 64 
 
 117 
 
 211 
 
 264 
 
 96 
 116 
 
 209 
 
 95 
 
 183 
 219 
 219 
 
 44 
 99 
 98 
 
 296 
 112 
 111 
 
 125 
 
 78 
 78 
 
 240 
 280 
 
 109 
 121 
 
 205 
 1 
 
 05 
 60 
 
 in the Beat Property Law ..... 
 
 Defraud creditors, conveyance or assignment void with 
 
 intent to ....... 227 105 
 
 defraud purchasers or encumbrancers, conveyances void 
 
 with intent to ...... 226 105 
 
REAL PROPERTY LAW. 139 
 
 Degree 
 
 equal, collateral relatives take equal parte . 286 122 
 
 equal, lineal descendants talro iu equal parts . . 282 121 
 
 ■unequal, lineal descendants take per stirpes and not per 
 
 capita ........ 283 121 
 
 Delaware county, Article VIII. (Recording) does nor, 
 apply to leases for lite or lives, or for years, hereto- 
 fore made (1 Oct.. 1896) .... 240 109 
 
 Delay creditors, conveyance or assignment void with 
 
 Intent to 227 105 
 
 Delivery 
 
 a grant takes effect <mly from ..... 209 95 
 
 of deeds, rules of law as to delivery of, apply to grants 
 
 hereafter ....... 209 95 
 
 of the grant is time of creation of expectant estate by 
 
 grant 54 68 
 
 to recording officer, instrument is considered recorded 
 
 from time of 266 117 
 
 '■ Demand " Included in grant of appurtenances and all 
 
 rights 220 101 
 
 Deposition 
 
 of alien mustbe filed and recorded .... 4 60 
 
 of resident alien ....... 4 60 
 
 presumptive evidence ...... 4 60 
 
 Descendants 
 
 begotten before death of intestate but born thereafter 
 
 inherit as if born before and had survived him . 292 124 
 
 lineal, in equal degree, take in equal parts . ■ 282 121 
 
 lineal, in unequal degree, take per stirpes and not per 
 
 capita 283 121 
 
 of brothers and sisters of father and mother, how take 
 
 by descent 288 123 
 
 of brothers and sisters take by descent per stirpes and 
 not per capita .... 
 
 of citizen wife of alien may inherit . 
 Descent of Real Property 
 
 general rule of 
 
 who may take by descent 
 Destruction of building without his fault, tenant may 
 
 surrender ....... 197 92 
 
 Determination of precedent estate before contingency, 
 
 effect on valid remainders .... 48 67 
 
 Devise 
 
 and dower, election between ..... 
 
 by alien ....... 
 
 disposition by power to, must be by legally executed 
 written will ....... 
 
 effect In certain cases of power to 
 
 far purpose of sale or mortgage, to executor or trustee 
 sot empowered to receive rents and profits vests no 
 estate in him, but is valid as a power . 
 
 in lieu of dower may be forfeited .... 
 
 in Men of dower takes effect on forfeiture in whom it 
 would have vested by her death 
 
 or conveyance, for religious, educational, charitable or 
 benevolent uses, not invalid for uncertainty of 
 beneficiary ....... 
 
 or grant, what estate passes by .... 
 
 passes all estate or interest testator had, unless differ- 
 ent intent by express terms .... 
 
 to an alien ........ 
 
 when operates as execution of power 
 
 who may take by . 
 Devised property, mortgage on must be paid by devisee, 
 not by exeoutor ...... 
 
 Devisee 
 
 nolexecutor, must satisfy mortgage on devised property 
 
 of lessor has same remedies that the lessor had . 
 
 of property subject to express trust shall have legal 
 estate against all except trustee 
 
 of person maker of covenant or agreement liable to ex- 
 tent of property devised .... 
 
 takes subject to execution of power .... 
 Devises 
 
 certain, to be deemed powers ..... 
 
 of real property for charitable purposes . 
 
 287 
 
 122 
 
 6 
 
 61 
 
 irticle IX. 
 
 120 
 
 281 
 
 121 
 
 2 
 
 60 
 
 ISO 
 5 
 
 88 
 60 
 
 147 
 132 
 
 83 
 81 
 
 77 
 182 
 
 71 
 89 
 
 182 
 
 89 
 
 93 
 210 
 
 75 
 96 
 
 210 
 5 
 
 156 
 2 
 
 96 
 60 
 84 
 60 
 
 215 
 
 96 
 
 215 
 193 
 
 96 
 91 
 
 81 
 
 72 
 
 217 
 
 77 
 
 97 
 
 71 
 
 77 
 93 
 
 71 
 75 
 
264 116 
 
 147 
 
 148 
 
 50 
 
 83 
 83 
 67 
 
 157 
 
 84 
 
 133 
 138 
 
 81 
 
 82 
 
 176 
 186 
 113 
 
 87 
 89 
 
 78 
 
 140 ANALYTICAL INDEX. 
 
 SECTION. PAGB. 
 
 " Died," in Article IX. (Descent) .... 280 121 
 
 Different indexes of mortgages and conveyances . 269 116 
 
 Different sets of recording books for deeds and mort- 
 gages ........ 
 
 Direction by grantor for insufficient instrument, power 
 
 not void ....... 149 83 
 
 Directions of grantor of power beyond sufficient legal 
 
 forms need not be followed .... 150 83 
 
 Disaffirmance of any fraudulent act by executor and 
 
 others 232 106 
 
 Disaffirmance of fraudulent act of deceased insolvent 
 
 by creditor for over $100 232 107 
 
 Discharge of mortgage must be reoorded and noted on 
 
 record 270 117 
 
 Disposition 
 
 of power to devise must be by legally executed written 
 
 will . . . 
 
 of power to grant oan not be by will .... 
 
 of rent and profits ...... 
 
 or charge, by virtue of a power is not void because too 
 extensive ....... 
 
 power of is absolute when grantee can in his lifetime 
 dispose of fee to his own benefit . . 
 
 Distribution where more than one beneficiary 
 Divorce a vinculo for misconduct of wife bars her dower 
 as widow ....... 
 
 Divorced woman may release dower 
 
 Divisions of powers ....... 
 
 Dominion of Canada, acknowledgments and proofs 
 
 in 250 111 
 
 Double rent and damages where tenant holds over after 
 
 30 days notice to quit. No equitable defence to this. 200 93 
 
 Double rent when tenant holds over after giving 
 notice of intention to quit 
 Dower ........ 
 
 Article IX. (Descent) does not affect . 
 barred by devise in lieu of ... 
 byjointure ....... 
 
 by misconduct ...... 
 
 by pecuniary provision In lieu of 
 
 election between devise and .... 
 
 jointure, or pecuniary provision, and 
 
 included in grant of appurtenances and all estate 
 
 in lands exchanged ..... 
 
 mortgaged for purchase money 
 
 mortgaged before marriage .... 
 
 maybe released b / attorney of married woman . 
 by divorced woman ..... 
 
 not prejudiced by acts of husband without wife's assent 
 provision, devise or jointure In lieu of, when forfeited . 
 when alien' 1 s widow has ..... 
 
 when, widow deemed to have elected 
 widow may bequeath crop inland held in . 
 Duration of certain atrreements in N. Y. City 
 Dutchess County, Article VIII. does not apply to leases 
 for life or lives, or for years, heretofore made [1 
 
 Oot., 18961 240 109 
 
 Educating a child without a view to a portion or settle- 
 ment in life is not an advancement . . . 295 124 
 Education and support may be ordered destitute minor 
 
 entitled to expeotant estate .... 52 68 
 
 Educational uses, conveyance or devise for. not invalid 
 
 for indeflniteness or uneertainlty of beneficiaries . 93 75 
 
 Effect 
 
 grant takes, only from delivery .... 
 
 of acts of hit sband without wife's assent . 
 
 of Article IX. ....... 
 
 of conveyance where property is leased 
 of grant or mortgage of real property adversely pos- 
 sessed ........ 
 
 of insolvent assignment on beneficial trust power 
 
 of marriage with alien ...... 
 
 of mortgage by grantee of life estate .... 
 
 of power to devise in certain oases .... 
 
 of power to revoke ..... 
 
 of renewal on sub-leases ..... 
 
 199 
 
 92 
 
 Article V. 
 
 86 
 
 280 
 
 121 
 
 180 
 
 88 
 
 177 
 
 88 
 
 176 
 
 87 
 
 178 
 
 88 
 
 180 
 
 88 
 
 179 
 
 88 
 
 220 
 
 101 
 
 171 
 
 87 
 
 173 
 
 87 
 
 172 
 
 87 
 
 187 
 
 89 
 
 186 
 
 89 
 
 it 183 
 
 89 
 
 182 
 
 89 
 
 5 
 
 4 
 
 181 
 
 88 
 
 185 
 
 89 
 
 202 
 
 93 
 
 209 
 
 95 
 
 183 
 
 89 
 
 280 
 
 121 
 
 213 
 
 96 
 
 225 
 
 105 
 
 144 
 
 82 
 
 6 
 
 61 
 
 136 
 
 81 
 
 132 
 
 81 
 
 125 
 
 80 
 
 196 
 
 92 
 
REAL PROPERTY LAW. 
 
 141 
 
 of this law ........ 
 
 on valid remainders, of determination of preoedent 
 
 estate before contingency 
 this Real Property Law takes, 1 Oct., 1896 . 
 Election 
 
 of widow between devise and dower 
 
 bet ween jointure and dower .... 
 
 order for enlargement of widow's time indexed and re 
 oorded like lis pendens .... 
 
 time for widow's, may be enlarged by court 
 when widow deemed to nave made 
 Encumbrancer 
 
 conveyance void as to. Is void as to heirs and assigns 
 conveyances void with intent to defraud 
 for valuable consideration, conveyance to, is valid 
 after conveyance providing for revocation, al 
 though same not expressly revoked 
 without notice, title not affected or impaired by Art! 
 
 oleVII - 
 
 in good faith, power is a lien against only from time of 
 reoord ........ 
 
 withnotice, conveyance or charge fraudulent as to sub 
 sequent, where grantee privy to fraud . 
 Encumbrances, covenant of freedom from . 
 Enjoyment, covenant of quiet .... 
 
 enumeration of estates in expectancy 
 enter on record after instrument, time of reoord, re 
 cording officer must ..... 
 
 Equal degree, collateral relatives in, inherit in equal 
 parts ....... 
 
 lineal descendants in, take in equal parts . 
 Equal parts, collateral relatives in equal degree inherit 
 in ....... 
 
 lineal descendants in equal degree take in 
 
 "Equitable estate " is included in term "estate" or 
 
 "interest in real property" . . . . 
 
 "Equity" claim, right and estate, included in grant 
 
 of appurtenances and all rights and estates . 
 Equity, powers of courts of, to compel specific perform 
 ance, not abridged by article VII. 
 Estate 
 
 every estate or interest in real property is a legal right 
 
 except lease for one year, or trust, can only be created 
 
 by written instrument .... 
 
 for life as remainder on term of years 
 
 for life in a term of years .... 
 
 for life of third person chattel real after death of gran 
 t«e ....... 
 
 for life or years, when changed to fee 
 
 freehold, for life of grantee .... 
 
 for years, at termination, tenant holding over after 30 
 days' notice to quit liable for double rent and dam- 
 ages. No equitable defence to this. 
 in expectancy ...... 
 
 oan not be defeated by intermediate owner, nor by dis 
 
 seizin, forfeiture, surrender, nor merger 
 is created by devise at death of testator . 
 is oreated by grant on delivery of the grant 
 liable to be defeated as provided by its creator is not 
 void in its oreation ..... 
 
 when deemed created ..... 
 
 in fee, "heirs" or other words of inheritance not 
 
 necessary to create or oonvey . 
 in possession ....... 
 
 of trustee oeases when purpose ceases for which trust 
 oreated ........ 
 
 with power of disposition, prior to 1830, not divested 
 
 or interest given to a child by virtue of a beneficial 
 
 power, or a power in trust, with a right of selection 
 
 is an advancement ...... 
 
 the term " estate " includes every interest in real prop- 
 erty, freehold or chattel, legal or equitable, present 
 or future, vested or contingent .... 
 
 to two or more is tenancy in common unless expressly 
 
 declared joint tenancy . 
 vested- in executors or trustees is always in joint tenancy 
 
 8BCTION. 
 
 1 
 
 48 
 301 
 
 180 
 179 
 
 181 
 181 
 180 
 
 228 
 226 
 
 231 
 
 230 
 127 
 
 226 
 
 218 
 
 218 
 
 26 
 
 268 
 
 286 
 282 
 
 286 
 282 
 
 205 
 
 220 
 
 234 
 
 71 
 
 207 
 37 
 40 
 
 24 
 
 129 
 
 24 
 
 200 
 25 
 
 47 
 
 54 
 54 
 
 47 
 53 
 
 205 
 25 
 
 89 
 72 
 
 295 
 
 205 
 
 56 
 56 
 
 PAGE. 
 60 
 
 67 
 125 
 
 88 
 88 
 
 88 
 88 
 88 
 
 105 
 105 
 
 IOC 
 
 106 
 
 80 
 
 105 
 97 
 97 
 63 
 
 117 
 
 122 
 121 
 
 122 
 121 
 
 95 
 101 
 107 
 
 70 
 
 95 
 65 
 65 
 
 63 
 80 
 63 
 
 93 
 63 
 
 66 
 
 68 
 68 
 
 66 
 68 
 
 95 
 63 
 
 74 
 70 
 
 124 
 
 95 
 
 68 
 68 
 
1412 
 
 ANALYTICAL INDEX. 
 
 vests only from the delivery of ihe grant . 
 
 which passes by grant or devise 
 Estates 
 
 already created or vested are subject to § 56 
 
 at will are chattel interests, not liable as such to sale 
 on execution .... 
 
 by sufferance are chattel interests . 
 
 for life continue freehold estates 
 
 for years are ohattels real 
 
 in common ..... 
 
 in fee simple, and fee simple absolute 
 
 in joint tenancy .... 
 
 in real pro-pert ,</, kinds of 
 
 in severalty .... 
 
 of inheritance continue freehold estates 
 Every estate in real property is a legal right 
 
 every interest In real property is a legal right 
 
 every instrument must be construed according to the 
 intent of the parties ..... 
 
 Evidence 
 
 acknowledgment or proof of instrument must be re- 
 corded to entitle record or transcript to be read in 
 
 conveyance acknowledged or proved without the state, 
 where parties and certifying officer dead, when may 
 be read in ....... 
 
 conveyance lawfully executed, acknowledged, proved, 
 certified before 1 Oct., 1896, but not recorded, may 
 be recorded, or may be read in . 
 
 recorded conveyance and certificates of proofs are 
 
 nitice hut not evidence where witnesses are dead 
 
 before proof and record ..... 
 
 Exchanged lands, dower In . . . 
 
 Exclude beneficiaries and select others, right to, trust 
 
 power does not cease to be imperative 
 Execute a power, capacity io take and 
 
 executed but not acknowledged or proved before 1 Oot. , 
 1896, conveyance may be proved or acknowledged 
 
 executed lawfully and acknowledged, proved, certified 
 before 1 Oct., 1896, but not recorded, conveyance 
 may be reoorded, or read in evidence . 
 
 executed uses, existing are confirmed 
 
 executing power, though power of revocation only, In- 
 strument is a " conveyance " . 
 
 execution of beneficial power may be adjudged for bene- 
 fit of cvedi tors ...... 
 
 Execution of power 
 
 affected by fraud same as a conveyance or will . 
 
 by survivors ....... 
 
 consent, if necessary, of grantor or third person must be 
 expressed In or endorsed on instrument and signed 
 
 consent of all requisite, or of survivor 
 
 governed after 1 Oct., 189S, by Real Property Law 
 
 governed by § 149, etc., where grantor directed insuf- 
 ficient instrument ...... 
 
 grantor's intent to be observed . 
 
 in trust devolves on Court where testator omitted to 
 designate ....... 
 
 need not follow any formality directed by grantor in 
 addition to sufficient by law .... 
 
 nominal conditions may be disregarded 
 
 on death of trustee with right of seleotion unexecuted 
 
 purchaser under defective, relieved .... 
 
 to dispose by devise or will must be by legally executed 
 written will ....... 
 
 to dispose by grant oan not be by will 
 
 when devise operates as . 
 Execution of trust power, defective may be cured 
 
 may be compelled for benefit of creditors, or assignees, 
 
 where beneficiary's interest is assignable 
 Executor 
 
 and others, may disaffirm any fraudulent aot 
 
 may have damages for fraudulent interference with 
 real property of deceased ..... 
 
 not to satisfy mortgage on property, but heir or devisee 
 
 or administrator of life tenant may reoover proportion 
 of rent accrued before death of life tenant . 
 
 SECTION. 
 
 PAGB. 
 
 209 
 
 95 
 
 210 
 
 96 
 
 66 
 
 68 
 
 23 
 
 63 
 
 23 
 
 63 
 
 23 
 
 63 
 
 23 
 
 63 
 
 55 
 
 68 
 
 21 
 
 63 
 
 55 
 
 68 
 
 20 
 
 63 
 
 55 
 
 68 
 
 23 
 
 63 
 
 71 
 
 70 
 
 71 
 
 70 
 
 205 
 
 267 
 
 262 
 
 243 
 
 95 
 
 117 
 
 115 
 
 109 
 
 263 
 
 171 
 
 115 
 
 87 
 
 137 
 121 
 
 81 
 79 
 
 213 
 
 109 
 
 243 
 
 70 
 
 109 
 70 
 
 240 
 
 109 
 
 139 
 
 82 
 
 161 
 146 
 
 85 
 83 
 
 153 
 154 
 110 
 
 83 
 84 
 
 78 
 
 149 
 152 
 
 83 
 83 
 
 141 
 
 82 
 
 150 
 151 
 140 
 160 
 
 83 
 83 
 82 
 84 
 
 147 
 148 
 156 
 143 
 
 83 
 83 
 84 
 82 
 
 142 
 
 82 
 
 232 
 
 106 
 
 232 
 215 
 
 107 
 96 
 
 192 
 
 91 
 
KEAL PROPERTY LAW. 143 
 
 SECTION. PAGE. 
 Executor's deed, or grant of appurtenances and of 
 
 estate of testator and grantor . . . . 221 101 
 
 shortform 223 102 
 
 Executors, estate vested in, is always in joint tenancy . 56 68 
 
 Executors of grantee or mortgagee, benefit of . 222 101 
 
 Executors of grantor or mortgagor, covenants to bind 222 101 
 
 Executory contract for sale or purchase of lands Is not 
 
 a " conveyance "...... 240 109 
 
 and powers of attorney, recording .... 244 110 
 
 Existing executed uses are confirmed ... 70 70 
 
 Expectancy, estate In ..... 25 63 
 
 enumeration of estates in . . . . . 26 63 
 
 Expectant estate 
 
 cannot be defeated by intermediate owner, nor by dis- 
 seizin, forfeiture, surrender, nor merger . . 47 66 
 is created by devise, at death of testator . . . 54 68 
 is created by grant, on delivery of the grant . 54 68 
 is descendible, devisable, alienable .... 48 67 
 
 liable to be defeated as provided by its creator is not 
 
 void in its oreation ..... 47 66 
 
 support and education may be ordered from accumula- 
 tions for destitute minor entitled to . 52 68 
 when defeated ....... 47 66 
 
 Express trust 
 
 authorized by Seal Property Law not prevented by 
 
 $§ 70 to 73 73 70 
 
 for any purpose not specified In § 76 vests no estate . 79 71 
 purposes for which may be created .... 75 70 
 to sell, mortgage or lease for benefit of annuitants or 
 legatees, or for satisfying any charge on real prop- 
 erty 76 70 
 
 to sell real property for benefit of creditors . . 76 70 
 
 to receive rents and profits and accumulate same . 76 70 
 
 to receive rents and profits and apply to use of any per- 
 son for life or for shorter term .... 76 71 
 
 trustee to have whole estate ..... 80 72 
 
 Eact, fraudulent Intent is question of . . . . 229 106 
 
 Father and mother, brothers and sisters of, and their de- 
 scendants, how take by descent .... 288 123 
 
 Father, descent of Inheritance on part of . . . 288 123 
 
 inherits, trhen . . . ' . . . . 284 122 
 
 normother, descent of of inheritance on part of neither 288 123 
 
 "Father, on the part of the" in article IX. (Descent) . 280 121 
 
 Eee 
 
 absolute, when grantee of power has . . . 131 80 
 
 createdby certain powers ..... 130 80 
 
 grant of, must be subscribed and acknowledged or wit- 
 nessed or does not take effect against subsequent 
 purchaser or incumbrancer .... 208 95 
 
 "heirs" or other words of inheritance not necessary 
 
 to create or convey estate in . . . 205 95 
 
 limited on a fee ....... 40 65 
 
 simple, and fee simple absolute .... 21 63 
 
 tail deemed fee simple since 1782 .... 22 63 
 
 Feoffment, conveyance by, with livery of seizin, has 
 
 been abolished ...... 205 95 
 
 Foreign city or town, mayor must affix his seal to ac- 
 knowledgment or proof before him . . . 257 113 
 foreign countries, acknowledgments and proofs in . 250 111 
 Forfeit o/ $100 by witness to conveyance who neglects 
 
 orrefusestotestifywhensubpcenaedbynotary.etc. 254 112 
 
 cf 3 years' rent by tenant who fails to give landlord 
 
 notice forthwith of process or summons . . 195 91 
 
 Forfeiture of provision, jointure or devise in lieu of i 
 
 dower ........ 182 89 
 
 estate takes effect in person In whom it would have 
 
 vested by death 182 89 
 
 Formality in execution of power directed by grantor be- 
 yond what sufficient In law need not be followed . 
 Form of acknowledgment by corporation 
 
 of deed with full covenants, short .... 
 
 of executor's deed, short , 
 
 of mortgage, short ...... 
 
 Forms of covenants, penalty $5 for using long 
 of deeds and mortgages, short . ... 
 
 other than short, of deeds and mortgages, valid . 
 10 
 
 150 
 
 83 
 
 258 
 
 113 
 
 223 
 
 102 
 
 223 
 
 102 
 
 223 
 
 102 
 
 274 
 
 118 
 
 223 
 
 102 
 
 223 
 
 102 
 
144 ANALYTICAL INDEX. 
 
 Fraud can affect execution of power, like conveyance or 
 
 will ........ 161 85 
 
 grantee privy to, then conveyance fraudulent as to 
 subsequent purchaser or encumbrancer with no- 
 tice . 226 105 
 
 Fraudulent actmaybedisaffirmedby executor an&otllBra 232 106 
 
 conveyance or charge, though subsequent purchaser 
 or encumbranber has notice, if grantee privy to 
 
 fraud 226 105 
 
 grant to one, where consideration paid by another, as 
 
 against creditors of that time, of latter . 74 70 
 
 intent must be disproved, as against creditors of one 
 
 who pays consideration for grant to another 
 intent question of fact ...*.. 
 practice, officer guilty of, liable in damages 
 Fraudulently interfering with real property of de- 
 ceased, or of insolvent corporation, association, 
 partnership, or individual, damages for 
 Wrce&om from encumbrances, covenant of . 
 Freehold, grant of must be subscribed and acknowledged 
 or witnessed, or does not take effect against subse- 
 quent purchaser or encumbrancer 
 is included in term " estate " or " interest in real prop- 
 erty" . . . . . . • 
 
 remainder of, on determination of term of years 
 when estate for life of third person is 
 Freeholds, chattel interests are .... 
 
 chattels real are ....... 
 
 Full covenant deed, short form .... 
 
 Further assurance, covenant of .... 
 
 in mortgage ....... 
 
 Future estate defeated by posthumous child 
 
 is included in term " estate " or " interest in real prop- 
 erty" ........ 
 
 valid though contingency improbable 
 void if power of alienation suspended more than two 
 lives in being ...... 
 
 when contingent ...... 
 
 when vested ....... 
 
 Future estates, creation of .... 
 
 definition of ....... 
 
 estates in expectancy ...... 
 
 in the alternative ....... 
 
 General power ....... 
 
 intrust ........ 
 
 General rule of descent ...... 
 
 Giving a child money without a view to a portion or 
 
 settlement in life is not an advancement 
 Good right to convey, covenant of , 
 
 Grant 
 
 absolutely void if property in adverse possession 
 
 by alien ........ 
 
 conclusive against grantor, his heirs,- and subsequent 
 purchasers from them ..... 
 
 of appurtenances and all estate and rights of grantor . 
 
 of fee or freehold must be subscribed and acknowledged 
 
 or witnessed as against subsequent purchaser or 
 
 encumbrancer ...... 
 
 or conveyance, does not pass greater estate than gran- 
 tor had ....... 
 
 or devise, what estate passes by 
 
 passes all estate of grantor unless different intent ex- 
 pressed ........ 
 
 takes effect only from delivery .... 
 
 to alien ........ 
 
 to one where consideration paid by another 
 Grant a power, oapacity to .... 
 
 Grants and devises of real property for charitable pur- 
 poses ........ 93 75 
 
 Grants hereafter executed governed by rules of law now 
 
 in f oroe in respeot to delivery of deeds . . 209 95 
 
 Grantee 
 
 bound by payment of rent to grantor before notice 
 
 to tenant, of conveyance .... 213 96 
 
 cannot hold for breach of least before notice to tenant, 
 
 of conveyance . .... 213 96 
 
 74 
 
 70 
 
 229 
 
 106 
 
 277 
 
 119 
 
 232 
 
 106 
 
 218 
 
 97 
 
 208 
 
 95 
 
 205 
 
 95 
 
 40 
 
 65 
 
 24 
 
 63 
 
 23 
 
 63 
 
 23 
 
 63 
 
 223 
 
 102 
 
 218 
 
 97 
 
 219 
 
 98 
 
 46 
 
 66 
 
 205 
 
 95 
 
 42 
 
 66 
 
 32 
 
 64 
 
 30 
 
 64 
 
 30 
 
 64 
 
 40 
 
 65 
 
 27 
 
 64 
 
 26 
 
 63 
 
 41 
 
 66 
 
 114 
 
 78 
 
 117 
 
 78 
 
 281 
 
 121 
 
 295 
 
 124 
 
 218 
 
 97 
 
 225 
 
 105 
 
 5 
 
 60 
 
 210 
 
 96 
 
 220 
 
 101 
 
 208 
 
 95 
 
 210 
 
 96 
 
 210 
 
 96 
 
 210 
 
 96 
 
 209 
 
 95 
 
 5 
 
 60 
 
 74 
 
 70 
 
 119 
 
 79 
 
SECTION. 
 
 rAGE. 
 
 155 
 112 
 
 84 
 78 
 
 193 
 131 
 
 91 
 80 
 
 74 
 222 
 162 
 
 70 
 101 
 
 85 
 
 218 
 112 
 
 97 
 
 78 
 
 213 
 
 82 
 
 96 
 
 72 
 
 150 
 
 83 
 
 149 
 
 83 
 
 152 
 
 83 
 
 222 
 
 101 
 
 REAL PEOPEBTT LAW. 145 
 
 executes power, though Ms instrument of conveyance 
 
 of the estate omits to recite power 
 in relation to a power, definition of 
 of leased real property, or reversion, or rent, has same 
 
 remedies as grantor-lessor 
 of power, when has absolute lee 
 of property subject Jo express trust shall have legal 
 
 estate ........ 81 72 
 
 privy to fraud, conveyance or oharge is fraudulent in 
 favor of subsequent purchaser or encumbrancer 
 
 ■with notice 226 105 
 
 purchasing with money or property of another in viola- 
 tion of a trust, trust results in favor of latter . 74 70 
 taking without knowledge of person paying considera- 
 tion, trust results in favor of latter 
 Gran tee's representatives, covenants to benefit 
 Grantees of trust powers are affected by § 91, 92, 93 . 
 Grantor 
 
 has not encumbered, covenant that 
 in relation to a power, definition of ... 
 
 may receive rent from tenant before notice of convey- 
 ance ........ 
 
 of express trust, interest remaining in 
 
 reserving absolute power to revoke is still absolute 
 
 owner ........ 125 80 
 
 Grantor's 
 
 acts, covenant against ...... 218 97 
 
 directions beyond sufficient legal formalities need not 
 be followed ....... 
 
 incorrect directions do not render power void 
 intent to be observed in exeoution of power 
 representatives, covenants to bind .... 
 
 Great Britain and Ireland, acknowledgments and 
 
 proofs in ...... . 250 111 
 
 Greater estate than grantor had does not pass by grant, 
 except that it Is conclusive against grantor, his 
 heirs, and subsequent purchasers from them . 210 96 
 
 Guilty of malfeasance, or fraudulent practice, offioer 
 
 is liable in damages to person injured . . 277 119 
 
 Half-blood, relatives of the ..... 290 123 
 
 excluded if not blood of ancestor from whom descent, 
 
 devise, or gift oame ..... 290 123 
 
 when inherit equally with whole blood . . . 290 123 
 
 Heir, not executor, must satisfy mortgage on property 
 
 descending ....... 215 96 
 
 of grantee, or devisee, of leased property, nr of reversion, 
 
 or of rent, has same remedies as grantor-lessor had 193 91 
 
 Heirs, conveyance void as to, if void as to oreditor, pur- 
 chaser, or encumbrancer . . 
 meaning of, in certain remainders 
 of grantee or mortgagee, benefit of . 
 of grantor or mortgagor, covenants to bind 
 of his body, in certain remainders .... 
 
 of life tenant take as purchaser, when 
 
 of patriotic Indian ...... 
 
 of person maker of covenant or agreement answerable 
 
 to extent of real property descended . 
 or other words of inheritance, not requisite to create or 
 oonvey estate in fee ..... 
 
 take subject to execution of vower .... 
 
 Hereditaments ....... 
 
 in article Till, inoluded in term "real property" 
 included in grant of appurtenances ana all estate 
 Herkimer County, Article VIII. does not apply to leases 
 for life or lives, or for years, heretofore made [1 
 
 Oot., 1896] 240 109 
 
 Hinder, delay or defraud creditors, oonveyanoe or assign- 
 i f , , ment void with intent to . . . . . 227 105 
 
 Holding over after receiving-30 days* notice to quit, ten- 
 ant liable to double rent and damages. No equitable 
 defence to this. . . . . . * 200 93 
 
 after giving notice of intention to quit, liability of 
 
 tenant ........ 199 92 
 
 Holding? real property, capaoity of .... 2 60 
 
 Holland Land Co., county olerk's authentication of cer- 
 tificate of acknowledgment or proof not necessary 259 114 
 
 228 
 
 105 
 
 38 
 
 65 
 
 222 
 
 101 
 
 222 
 
 101 
 
 38 
 
 65 
 
 44 
 
 66 
 
 9 
 
 61 
 
 217 
 
 97 
 
 205 
 
 95 
 
 77 
 
 71 
 
 1 
 
 60 
 
 240 
 
 109 
 
 220 
 
 101 
 
146 ANALYTICAL INDEX. 
 
 Bow a power may be granted .... 
 advancements adjusted ..... 
 and when alien may acquire and transfer real property 
 power must be executed ...... 
 
 Husband's acts without assent of wife do not prejudice 
 wile's dower or jointure ..... 
 laches, default, covin or crime do not prejudioe wife's 
 dower or jointure . .... 
 
 Idiot may not transfer ..... 
 
 Illegitimate child dying without issue, inheritance de- 
 scends to his mother, or her relatives 
 when inherits ...... 
 
 Impaired or altered by Heal Property Law, nothing that 
 has taken effect before] Oct., 1896 . 
 
 Implication of law, trust arising by, not affected by § 92 
 not affected by §§ 70 to 73 
 
 Implied covenants, none in a conveyance 
 
 Implied or resulting trust shall not defeat title of bona 
 flde purchaser without notice 
 
 Improbable contingency, yet future estate valid 
 
 Improving trust estate, court may authorize mortgage 
 
 or Bale for 85 72 
 
 Incidents Of lineal and collateral warranties have 
 
 been abolished 217 97 
 
 Including himself, an executor, administrator, re- 
 ceiver, assignee or other trustee may disaffirm any 
 act done in fraud of creditors .... 232 106 
 
 Income of trust property, creditors can claim surplus. 78 71 
 
 Incumbrancer, subsequent, not affected by grant not 
 
 acknowledged or witnessed .... 208 95 
 
 Indexed and recorded like lis pendens, order enlarging 
 
 time for widow's election .... 181 88 
 
 Indexed against each person also, whose right, title or 
 interest has been sold by sheriff or referee 
 
 Indexes for recorded instruments .... 
 new numerical, § 265 does not apply to . 
 
 Indexing and recording acts for New York city block 
 system not affected by Keal Property Law . 
 
 Indian, heirs of patriotic ...... 
 
 Individual insolvent, damages for interfering with real 
 
 SECTION. 
 
 120 
 
 296 
 
 5 
 
 145 
 
 PAGE. 
 
 79 
 
 125 
 
 60 
 
 83 
 
 183 
 
 89 
 
 183 
 3 
 
 89 
 60 
 
 289 
 289 
 
 123 
 123 
 
 1 
 92 
 73 
 
 216 
 
 60 
 
 74 
 70 
 
 97 
 
 75 
 42 
 
 71 
 66 
 
 property of 
 Indor. 
 
 Indorsed upon instrument by recording officer, time, 
 book and page of record must be 
 Inherit, when collateral relatives .... 
 
 Inheritance, definition of in Article IX. 
 
 estates of, are freehold ...... 
 
 not provided for in (he Meal Property Law shall descend 
 aooording to common law .... 
 
 on part of father ....... 
 
 on part of mother . ...... 
 
 on part of neither father nor mother 
 
 sole or in common ...... 
 
 to several persons, they take as tenants in common 
 words of, " or heirs," not necessary to create or convey 
 estate infee ....... 
 
 Inherited property, mortgage on must be paid by heir 
 not by executor ...... 
 
 Inherits, when father ...... 
 
 when mother ....... 
 
 Injury to building so as to be untenantable, without 
 his fault, tenant may surrender .... 
 
 Insolvent assignment carries beneficial trust power 
 Insolvent corporation, association, partnership or in- 
 dividual, damages for fraudulently interfering with 
 
 real property of 232 106 
 
 Insolvent deceased debtor, creditor for over $100 may 
 
 disaffirm fraudulent act of .... 232 106 
 
 Insolvent trustee, or one whose insolvency is appre- 
 hended, may be removed ..... 92 74 
 Instrument 
 
 considered tecorded from time of delivery to recording 
 
 officer 266 117 
 
 conveying estate of grantee of power, executes power 
 
 though it omits to recite latter ... 155 84 
 
 every written instrument by which title may be affected 
 
 is a '• conveyance" . . . . . 240 109 
 
 265 
 265 
 265 
 
 116 
 116 
 116 
 
 274 
 9 
 
 118 
 61 
 
 232 
 
 106 
 
 268 
 
 286 
 
 280 
 
 23 
 
 117 
 
 122 
 
 121 
 
 63 
 
 291 
 288 
 288 
 288 
 293 
 293 
 
 124 
 123 
 123 
 123 
 124 
 124 
 
 205 
 
 95 
 
 215 
 285 
 285 
 
 96 
 122 
 122 
 
 197 
 144 
 
 92 
 82 
 
257 
 276 
 
 82 
 118 
 
 246 
 
 110 
 
 149 
 219 
 177 
 178 
 
 83 
 98 
 
 88 
 88 
 
 REAL PROPERTY LAW. 147 
 
 SECTION. PAGE. 
 
 ereating, transferring, mortgaging, assigning any es- 
 tate or interest, or affeoting title, except will, lease 
 for not over 3 years, executory contract, and power 
 of attorney to convey Is a " conveyance " . . 240 109 
 
 executing power must express or be endorsed with any 
 
 neoeasary oonsent of grantor or third person . 153 83 
 
 in execution of power can be affected by fraud like a 
 
 will or conveyance ...... 161 85 
 
 must be con. s trued acoording to intent of parties . 205 95 
 
 must be indorsed by recording officer with time of 
 
 reoord, book and page ..... 268 117 
 
 void as to creditors, purchasers or encumbrancers, is 
 void as to their heirs, successors, representatives 
 
 or assigns 228 105 
 
 Instruments 
 
 acknowledgments and proofs of, before U. S. officials 
 
 prior to 1 Apr., 1896, confirmed 
 cancelled of record, aotlons to have certain 
 in Secretary of State's office, oouiesjmay be certified and 
 recorded ....... 
 
 Insufficient instrument directed by grantor, power not 
 void ........ 
 
 Insurance of buildings under mortgage 
 
 Intended wife, assent in jointure .... 
 
 assent in pecuniary provisions .... 
 
 Intent 
 
 fraudulent, is question of fact .... 229 106 
 
 fraudulent, must be disproved as against creditors of 
 one who paid consideration where grant was taken 
 by another ....... 74 70 
 
 of grantor of power to be observed, subject to Ar- 
 ticle IV 152 83 
 
 •/ parties must govern construction of an instru- 
 ment 205 95 
 
 to defraud purchasers and encumbrancers, convey- 
 ances void 226 105 
 
 to hinder, delay or defraud creditors, conveyance or 
 
 asslenment void ...... 227 105 
 
 Intention to quit, liability of tenant holding over after 
 
 giving notice of ...... 199 92 
 
 Interest 
 
 "all interest" is included- in grant of appurtenances 
 and all estate ...... 
 
 clause in bonds and mortgages .... 
 
 given by pare nt by virtue of a beneficial power, or a 
 power in trust, with right of election, is an ad- 
 vancement ....... 
 
 in real property, every interest, is a legal right 
 "in real properly," the term "estate" includes every 
 "interest" ....... 
 
 overdue whole principal due in mortgages and bonds. 
 owed by life-tenant may be paid by remaindermen, and 
 amount, with interest, reoovered from life-tenant. 
 remaining in grantor of express trust 
 the term " estate " includes every interest 
 vests only from delivery of the grant 
 what trust interest may be alienated 
 Interfering with real property of deceased, or of insolv- 
 ent corporation, association, partnership, or indi- 
 vidual, damages for fraudulently , 
 Irrevocable, when power is .... 
 
 Ireland, acknowledgments and proofs in 
 Issue, meaning of, in certain remainders 
 
 " Issues" in oluded in grant of appurtenances and all 
 estate ........ 
 
 Joint tenancy, estate in . 
 
 when estate in joint tenanoy, and when in oommon . 
 Jointure bars dower, if wife assents .... 
 
 may be forfeited ....... 
 
 not prejudiced by acts of husband without wife's assent 
 or dower, widow must elect ..... 
 
 takes effect on forfeiture, in. person in whom it would 
 
 have vested by death . . . . . 182 89 
 
 Judgment in creditor's action to set aside deed, etc., of 
 deceased insolvent may provide for sale of prem- 
 ises, and distribution of proceeds . . . 232 106 
 
 220 
 
 101 
 
 219 
 
 98 
 
 295 
 
 124 
 
 71 
 
 70 
 
 205 
 
 95 
 
 219 
 
 98 
 
 233 
 
 107 
 
 82 
 
 72 
 
 205 
 
 95 
 
 209 
 
 95 
 
 83 
 
 72 
 
 232 
 
 106 
 
 128 
 
 80 
 
 250 
 
 111 
 
 38 
 
 65 
 
 220 
 
 101 
 
 55 
 
 68 
 
 56 
 
 68 
 
 177 
 
 88 
 
 182 
 
 89 
 
 183 
 
 89 
 
 179 
 
 88 
 
148 ANALYTICAL INDEX. 
 
 SECTION. PASl. 
 on claim not first necessary to maintain action of 
 creditor to Bet aside conveyance or agreement of 
 deceased insolvent debtor, bat same mar be estab- 
 lished on the trial 232 166 
 
 Kinds of estates in real property .... 20 63 
 
 Kings county, register, not county clerk, is recording 
 
 officer . , 240 109 
 
 Laches, default, covin or crime of husband do not preju- 
 dice wife's dower or jointore .... 183 89 
 Landlord and Tenant .... Article Tl. 94 
 Landlord liable for damages resulting from occupancy 
 
 of premises for unlawful purpose . . . 201 93 
 may have 3 years' rent from tenant who fails to forth- 
 with give him notice of process or summons . 195 91 
 may recover double rent and damages where tenant 
 holds over after 30 days' notice to quit. No equit- 
 able defence to this 200 93 
 
 may recover double rent where tenant holds over after 
 
 giving notice of intention to quit 
 may recover for use and occupation 
 may re-enter or proceed after 30 days' notice to tenant 
 at will or by sufferance . , . . . 
 
 Lands , ....... 
 
 in Article Till, is included in term " real property " . 
 Laws repealed ....... 
 
 schedule of ... ... 
 
 the portion specified in last column of schedule hereto 
 annexed ....... 
 
 when to take effect ...... A 
 
 Lease and release, deeds of, may continue to be used 
 and are grants ...... 
 
 Lease, assignee of, is a " purchaser " . 
 
 for five years by trustee without leave of court 
 
 for life, rent due recoverable ..... 
 
 for not exceeding 3 years is not a " conveyance " 
 for one year or less need not be in writing . 
 for over 5 years by trustee may be authorized by court 
 for over 5 years made by trustee before 1895 may be 
 
 confirmed by court ...... 86 73 
 
 life tenanVs power to lease is extinguished if excepted 
 
 from his grant, or if released .... 135 81 
 
 more than one year, contract to lease for, .void unless 
 
 written . . 224 105 
 
 not over 3 years not included in term "real property" 
 
 inAitioleVIII. 
 
 of trust property, by trustee, when 
 by order of court must beonnotieeto beneficiary 
 power of life tenant to make lease is not assignable 
 real properly for the benefit of annuitants or legatees 
 or to satisfy any charge thereon, express trust to 
 lease ........ 
 
 "Legal estate" is included in term "estate" or "in- 
 terest in real property" ..... 
 
 legal estate of express trust vests in trustee 
 Legal ownership, when created by right to possession. 
 Legal title shall be in Supreme Court where no trustee 
 
 named in grant or devise for charitable uses . 93 75 
 
 shall be in trustee under grant or devise for charitable 
 
 uses, although beneficiaries are uncertain . . 93 75 
 
 Legatees, express trust to sell, mortgage or lease for 
 
 benefit of ....... 76 71 
 
 Lessee, his assignee, or personal representative has 
 same remedy against lessor, his grantee or as- 
 signee, or the representative of either, as lessee 
 might have had, except covenants against incum- 
 brances, for title or possession .... 
 
 Letters patent granting real property may be recorded. 
 Liabilities of* alien holders ..... 
 
 Liability of landlord, premises oocupied for unlawful 
 
 purpose ....... 201 93 
 
 of tenant holding over after giving notice of Intention 
 
 to quit 199 92 
 
 Lien or charge, a power is, against creditors, purchas- 
 ers, or encumbrancers, from time of record 
 Lien of dower, election of widow, of de vise in , 
 
 election of widow of jointure or pecuniary provision in. 
 
 199 
 
 92 
 
 190 
 
 46 
 
 196 
 
 92 
 
 1 
 
 60 
 
 240 
 
 109 
 
 300 
 
 125 
 
 pp. 126 
 
 ,127 
 
 300 
 
 125 
 
 lei. 
 
 125 
 
 211 
 
 96 
 
 240 
 
 109 
 
 86 
 
 73 
 
 191 
 
 91 
 
 240 
 
 109 
 
 207 
 
 95 
 
 86 
 
 73 
 
 240 
 86 
 87 
 
 135 
 
 109 
 73 
 73 
 81 
 
 76 
 
 71 
 
 205 
 80 
 71 
 
 52 
 72 
 70 
 
 193 
 
 •1 
 
 245 
 
 110 
 
 8 
 
 61 
 
 127 
 
 80 
 
 180 
 
 88 
 
 179 
 
 88 
 
REAL PROPERTY LAW. 
 
 149 
 
 forfeiture'of provision, jointure or devise in 
 Iiife estate, at termination of ', tenant holding over after 
 30 days' notice to quit liable to double rent and 
 damages. No equitable defence to this 
 effect of mortgage of life estate by grantee with power 
 
 to lease, . 
 
 when changed to fee ...... 
 
 lAfe estates are freehold ..... 
 
 Iiife lease, rent recoverable ..... 
 
 Iiife of third person, estate for, is chattel real after 
 death of grantee . 
 is freehold only for life of grantee . . . . 
 
 remainder on ...... 
 
 Iiife tenant, conveyance by, of greater estate than he 
 
 Sossesses does not work forfeiture, but passes all 
 e has . ... 
 
 neglects or refuses to pay interest on mortgage or other 
 lien, remainderman may pay and recover amount, 
 with interest, from lite tenant . 
 power to make leases . . . . . . 
 
 extinguished if excepted from his grant, or if released, 
 not assignable . . . . . 
 
 Id/e tenant's heirs take as purchasers when 
 Limitation 6;/ deed or will not attested by Article IX. 
 (Descent) . . . 
 
 of sueeessive estates for life . . . 
 
 Limitations, conditional . . : 
 
 of chattels real . . 
 
 liineal and collateral warranties have been abol- 
 ished ........ 
 
 liineal descendants in equal degreetate in equal parts 
 
 of unequal degree . ; . . . 
 
 liivery of seizin has been abolished . 
 liires of more than two persons, remainder on 
 "Living "in Article IX. (Descent) . . . . 
 
 maintaining a child without a view to a portion or set- 
 tlement in life is not an advancement . 
 maintenance and education may be ordered from expec- 
 tant estate, for destitute minor entitled to . 
 malfeasance, officer guilty of, liable in damages . 
 manner of execution of power, grantor's intent to be 
 observed ........ 
 
 married woman, acknowledgments andproofs by, within 
 the state, same as U.unmarried .... 
 
 capacity to take power . 
 
 may dispose, under power, without concurrence of hus- 
 band . . . . . , 
 
 may release dower by attorney ..... 
 
 mayor of foreign city or town must affix seal to ac- 
 knowledgment orproof before him 
 meaning of " heirs " and " issue " in certain remainders 
 merger of trust estate in remainder, when beneficiary en- 
 titled to remainder, releases interest in rents and 
 profits ........ 
 
 minor, destitute, entitled to expectant estate, may have 
 support and education 
 may not transfer .... 
 
 minority, when part of a life . . . 
 
 misconduct of wife bars her dower as Widow 
 more than one benefloiary, distribution when , 
 mortgage 
 
 assignee of , is a purchaser ... , 
 
 assignment, record no notice to mortgagor 
 by alien ...... 
 
 by grantee of life estate, effect of 
 
 by tenant for life with power to lease binds the power 
 
 and any subsequent estate 
 by trustee may [be authorized by court 
 covenants . . .... . • 
 
 further assurance of title . 
 
 grant of appurtenances and all rights and estate 
 
 power to sell in default of payment 
 
 te benefit representatives of mortgagee . 
 
 to bind representatives of mortgagor 
 
 te insure ...... 
 
 to pay indebtedness . . 
 
 179 
 
 88 
 
 200 
 
 93 
 
 136 
 
 129 
 
 23 
 
 191 
 
 81 
 80 
 63 
 91 
 
 24 
 24 
 34 
 
 63 
 63 
 65 
 
 212 
 
 96 
 
 233 
 
 107 
 
 135 
 
 81 
 
 135 
 
 81 
 
 135 
 
 81 
 
 44 
 
 66 
 
 280 
 
 121 
 
 33 
 
 64 
 
 43 
 
 66 
 
 39 
 
 65 
 
 217 
 
 97 
 
 282 
 
 121 
 
 283 
 
 121 
 
 206 
 
 95 
 
 35 
 
 65 
 
 280 
 
 121 
 
 295 
 
 124 
 
 52 
 
 68 
 
 277 
 
 119 
 
 152 
 
 83 
 
 251 
 
 112 
 
 122 
 
 79 
 
 122,123 
 
 79 
 
 187 
 
 89 
 
 257 
 
 113 
 
 38 
 
 65 
 
 83 
 
 72 
 
 52 
 
 68 
 
 3 
 
 60 
 
 32 
 
 64 
 
 176 
 
 87 
 
 138 
 
 82 
 
 240 
 
 109 
 
 271 
 
 118 
 
 5 
 
 60 
 
 136 
 
 81 
 
 136 
 
 81 
 
 85 
 
 72 
 
 219 
 
 98 
 
 219 
 
 100 
 
 220 
 
 101 
 
 219 
 
 99 
 
 222 
 
 101 
 
 222 
 
 101 
 
 219 
 
 99 
 
 219 
 
 99 
 
150 ANALYTICAL INDEX. 
 
 SECTION. PAGE. 
 
 warranty of title . 
 
 whole sum to become due on default in insurance 
 
 on default In Interest, taxes, assessments 
 
 confined to property mentioned, in absenoe of a bond, 
 or of covenant to pay sum secured . 
 
 discharge of, must be recorded and noted on record of 
 mortgage . . . . 
 
 does not imply covenant to pay sum secured 
 
 express trust to, for benefit of annuitants, or legatees, 
 or to satisfy charge ..... 
 
 grant of appurtenances and all rights and estate of 
 grantor ....... 
 
 of property in adverse possession binds property 
 
 of property in adverse possession not void 
 
 of trust property by trustee by order of court must be on 
 notice to beneficiary ..... 
 
 omitting covenant to pay sum secured, and no bond, the 
 mortgage is connued to property mentioned 
 
 of several parcels, certified copy may be recorded in 
 any county where pareel situate 
 
 power to sell in ...... 
 
 real property for benefit of annuitants, or legatees, or 
 to satisfy any charge thereon, express trust to 
 
 satisfaction of, must be recorded and noted on record of 
 mortgage ....... 
 
 short form ........ 
 
 to alien ........ 
 
 Mortgagee entitled to execution of power by life tenant 
 mortgagor with power to lease 
 
 to have power to sell in default of payment 
 
 under absolute deed intended as security derives no 
 benefit from reoord unless defeasance also re- 
 corded ........ 
 
 Mortgagee's option on default in insurance 
 
 option on default on interest, taxes and assessments 
 
 widow not endowed ...... 
 
 Mortgages, acknowledgments or proofs of before 17. 8. 
 official prior to 1 April, 1896, confirmed . 
 
 and bonds, covenants and agreements in . 
 
 certain deeds deemed ...... 
 
 on realproperly inherited or devised 
 
 short forms of deeds and ..... 
 
 two or more on property in adverse possession have nre- 
 
 ferenoe according to time of reoord . . " . 225 105 
 
 Mortgaging any estate or interest, any instrument except 
 will, lease for not over 3 years, executory con- 
 tract, or power of attorney to convey, is a " con- 
 veyance" ....... 240 109 
 
 Mortgagor, record of assignment of mortgage is no no- 
 tice to ....... 
 
 to give further assurance of title .... 
 
 to Keep buildings insured ..... 
 
 Mortgagor's representatives, covenants to bind 
 Mother aud father, brothers and sisters of, and their de- 
 scendants, how take by descent 
 
 descent of inheritance on the part of 
 
 inherits, when ....... 
 
 nor father, descent of inheritance on the part of 
 neither ....... 
 
 "on thepart of the mother," in Artioie IX., Descent . 
 Nature of estate in common ..... 
 
 in joint tenancy ....... 
 
 in severalty ....... 
 
 Necessary, written oonveyanoe, when 
 Neglect or refusal of life tenant to pay interest on 
 mortgage or other lien, remainderman may pay, 
 and reoover amount, with interest, from life 
 tenant ....... 233 107 
 
 of witness to conveyance to testify under subpoena, for- 
 feit $100, and notary may send to prison without 
 
 bail 254 112 
 
 neither father nor mother, desoent of inheritance on 
 
 the part of . . . . . . . 288 123 
 
 New York Cijy acts for recording and indexing aooord- 
 ing to blook system not affected by this Eeal Prop- 
 erty Law 275 118 
 
 219 
 219 
 219 
 
 100 
 99 
 98 
 
 214 
 
 96 
 
 270 
 214 
 
 117 
 96 
 
 76 
 
 71 
 
 220 
 
 225 
 225 
 
 101 
 105 
 105 
 
 87 
 
 73 
 
 214 
 
 96 
 
 247 
 126 
 
 110 
 
 80 
 
 76 
 
 71 
 
 270 
 
 223 
 
 5 
 
 117 
 
 102 
 
 60 
 
 136 
 
 219 
 
 81 
 98 
 
 269 
 219 
 219 
 175 
 
 117 
 98 
 98 
 87 
 
 257 
 219 
 269 
 215 
 223 
 
 113 
 98 
 
 117 
 96 
 
 102 
 
 271 
 
 118 
 
 219 
 
 100 
 
 219 
 
 99 
 
 222 
 
 101 
 
 288 
 
 123 
 
 288 
 
 123 
 
 285 
 
 122 
 
 288 
 
 123 
 
 280 
 
 121 
 
 55 
 
 68 
 
 55 
 
 68 
 
 55 
 
 68 
 
 207 
 
 85 
 
REAL PROPERTY LAW. 151 
 
 agreement for occupation, not specifying duration, 
 oontinues to May tat next after possession com- 
 mences under the agreement. Bent thereunder is 
 payable on usual quarter days .... 202 93 
 
 "New York commissioner, acknowledgment or proof 
 
 by, to he authenticated by Secretary of State . 260 114 
 
 out of If. Y. and within XT. S. must state day and place 
 
 in certificate of acknowledgment or proof . . 256 113 
 
 must affix seal ....... 257 113 
 
 New York county, register, not county clerk, is reoord- 
 
 Inc officer . . .... 248 109 
 
 No notice to mortgagor, record of assignment of mort- 
 gage is 271 118 
 
 Nominal conditions annexed to a power mar he disre- 
 garded 151 83 
 
 Not evidence, recorded conveyance and certificates of 
 
 proofs, where witnesses are dead . . . 263 115 
 
 Notary or other offioer may send to prison without bail, 
 witness to conreyanoe who refuses or neglects to 
 testify 254 112 
 
 Noted on record of mortgage, discharge or satisfaction 
 
 must he 270 117 
 
 Notice of action adverse to possession of tenant . . 195 91 
 
 of intention to quit, liability of tenant holding over 
 
 after giving 199 92 
 
 of termination of tenancy at will or by sufferance, how 
 
 served 197 92 
 
 only constructive, on record of conveyance and certifi- 
 cates of proofs, when witnesses are dead . . 263 115 
 to beneficiary where trust property is conveyed, mort- 
 gaged, or leased ...... 87 73 
 
 to putt at termination of estate for life or years, tenant 
 liable to double rent damages. Ho equitable de- 
 fense to this. ...... 
 
 Number of owners of an estate .... 
 
 Numerical indexes, § 265 does not apply to new in- 
 dexes ........ 
 
 'Occupancy for unlawful purpose, landlord liable for 
 any damages ...... 
 
 Occupant or tenant may surrender premises, when 
 
 Occupation and use, landlord may recover for 
 
 Office of Secretary of State, copies of instruments in, 
 
 may be certified and recorded .... 246 110 
 
 Officer taking acknowledgment or proof must indorse or 
 
 attach oertifloate to conveyance . . . 255 112 
 
 must know, or have satisfactory evidence of identity 
 
 of person acknowledging .... 252 112 
 
 with power to take acknowledgment may send to prison 
 without bail witness to oonveyanoe who refuses or 
 neglects to testify . . . . 254 112 
 
 Officers guilty of malfeasance liable for damages . . 277 11 9 
 
 Official of one IT. 8., or of Canada, acknowledgment or 
 proof by, must be authenticated by Secretary of 
 State of State.or clerk, register, recorder or pro- 
 thonotary of county, or olerkof court of county 
 having seal . 260 114 
 
 Officials, various U. 8., acknowledgments before, prior 
 
 to 1 April, 1896, confirmed .... 257 113 
 
 may take acknowledgments or proofs . . . 250 111 
 
 must affix seal to acknowledgment or proof . - . 257 113 
 
 Omission to recite power in instrument conveying its 
 
 grantee's estate . . . . . . 155 84 
 
 On forfeiture of jointure, devise, or provision in lieu of 
 dower, estate vests in person in whom it would 
 have vested by death ..... 182 89 
 
 On the part of neither father nor mother, descent of in- 
 heritance ....... 
 
 the father, descent of inheritance .... 
 
 the father or mother in Article IX .... 
 
 the mother, descent of inheritance .... 
 
 One year lease, or less, need not be in writing 
 
 Operation of law may ereate or declare an estate or 
 trust ....... 
 
 Option of mortgagee on default of interest, taxes or 
 assessments ....... 
 
 Order of recording ...... 
 
 200 
 55 
 
 93 
 
 68 
 
 265 
 
 116 
 
 201 
 197 
 190 
 
 93 
 92 
 91 
 
 288 
 288 
 280 
 288 
 207 
 
 123 
 123 
 121 
 123 
 95 
 
 207 
 
 95 
 
 219 
 266 
 
 98 
 117 
 
232 
 
 . 73 
 
 245 
 
 9 
 
 88 
 
 106 
 70 
 
 110 
 61 
 73 
 
 182 
 182 
 178 
 274 
 
 89 
 
 89 
 
 88 
 
 118 
 
 283 
 
 121 
 
 287 
 283 
 
 122 
 121 
 
 152 ANALYTICAL INDEX. 
 
 SECTION. PAGE. 
 Other Mates, acknowledgments and proofs in . . 249 HI 
 
 Owner may maintain actum to nave any recorded instrn- 
 
 . ment declared void or invalid and cancelled . 276 118 
 
 Parol lease or other agreement may be need as evidence 
 
 of amount of compensation for use and occupation 190 91 
 
 "Part of the father" or "mother" in Article IX. 
 
 [Descent] 280 121 
 
 Part performance, in oases of, powers of courts of 
 equity to oompel specific performance not 
 
 abridged by Article VII 234 107 
 
 Parties to conveyance, and certifying officer dead, where 
 
 acknowledged without tho state, now recorded . 262 115 
 
 Partnership, damages for fraudulently interfering with 
 real property of insolvent .... 
 
 Passive trust, trustee not to take . . 
 
 Patent granting realproperty, letters must be recorded . 
 Patriotic Indian's heirs may hold and convey 
 Paying money to truwfec, person protected 
 Pecuniary provision in lieu of dower takes effect on for- 
 feiture in person in whom it would have vested by 
 death ........ 
 
 when forfeited ....... 
 
 when dower barred by ...... 
 
 Penalty $5 for using long forms of covenants . 
 Per capita and not per stirpes, lineal descendants of 
 equal degree take ...... 
 
 Per stirpes and not per capita, brothers and sisters and 
 their descendants take by descent 
 lineal descendants in unequal degree take 
 Performance, powers of courts of equity to compel 
 
 specific, not abridged by Article VII ... 234 107 
 Period of suspension of alienation dates from time of 
 creation of power, not from date of instrument ex- 
 ecuting 158 84 
 
 Person, acknowledging officer must know or have satis- 
 factory evidence of identity of . . . . 252 112 
 creating trust may declare to whom property shall 
 
 belong on failure or termination of trust . . 81 72 
 
 may grant or devise property subject to exeeotion of 
 
 the trust 81 72 
 
 fraudulently interfering with real property of deceased, 
 or of insolvent corporation, association, partner- 
 ship or individual, is liable to executor, adminis- 
 trator, receiver or trustee .... 
 of unsound mind may not transfer 
 paying money to trustee protected .... 
 to whom any estate or interest is conveyed for valuable 
 
 consideration is a "purchaser" . . . 240 109 
 
 Personal property advancement must be adjusted out of 
 surplus of personal property to be distributed to 
 
 next of kin, if possible 296 125 
 
 Personal representative, conveyance void as to, if 
 
 void as to creditor, purchaser or enoumbranoer . 228 105 
 
 o/ grantee, or devisee, or assignee of leased real prop- 
 erty, or of reversion, or of rent, has same remedies 
 
 as lessor had . 193 91 
 
 of lessee, has same remedies his lessee had except on 
 covenants against encumbrances, for title, or pos- 
 session ....... 
 
 Possession, estates in ..... 
 
 included in grant of appurtenances and all rights 
 when right to, creates legal ownership 
 Posthumous children ...... 
 
 Posthumous children and relatives begotten before his 
 death shall inherit as If born in lifetime of intes- 
 tate 292 124 
 
 Power 
 
 additional formalities directed by grantor beyond suffi- 
 cient by law need not be followed 
 beneficial ........ 
 
 beneficial, subject to claims of creditors . 
 
 can be executed only by written instrument 
 
 tan only be created by written instrument . 
 
 capacity of married womanlo take .... 
 
 capacity to grant ....... 
 
 capacity to take and execute ..... 
 
 232 
 
 106 
 
 3 
 
 60 
 
 88 
 
 73 
 
 193 
 
 91 
 
 25 
 
 63 
 
 220 
 
 101 
 
 71 
 
 70 
 
 46 
 
 66 
 
 150 
 
 83 
 
 116 
 
 78 
 
 139 
 
 82 
 
 145 
 
 83 
 
 207 
 
 95 
 
 122 
 
 79 
 
 119 
 
 79 
 
 121 
 
 78 
 
REAL PROPERTY LAW. 163 
 
 SECTION. PAOB. 
 
 capacity to take under power ..... 1S9 84 
 
 consent of all requisite, or of survivor, to execution of. 154 84 
 
 definition of ....... Ill 78 
 
 execution of, affected by fraud like conveyance or -will 161 85 
 
 of beneficial, may be adjudged for benefit of creditors 139 82 
 
 on death of trustee with right of selection unexecuted 140 82 
 
 general ........ 114 78 
 
 grantor's intent to be observed in execution of . . 152 83 
 
 how may be granted ...... 120 79 
 
 in trust, exeoution defective, proper execution ad- 
 Judged 143 82 
 
 exeoution devolves on court where testator omitted 
 
 to designate ....... 141 82 
 
 general ........ 117 78 
 
 passes to trustee, or committee of estate, or assignee 
 
 for benefit of creditors ..... 144 82 
 
 special ........ 118 79 
 
 with a right of selection, estate or interest given by 
 
 parent, by virtue of, is an advancement . . 295 124 
 
 irrevocable, when ...... 128 80 
 
 must be executed by all in whom vested, or their sur- 
 vivor or survivors ...... 146 83 
 
 necessary consents of grantor or third person must be 
 expressed in or endorsed on instrument executing, 
 
 and signed 153 83 
 
 nominal condition* in execution of, maybe disregarded 151 83 
 not void though grantor directed exeoution by insuffi- 
 cient instrument ...... 149 83 
 
 of alienation, bb to chattels real . . . 39 65 
 
 suspension of ...... . 32 64 
 
 of appointment not to prevent vesting ... 31 64 
 of attorney to convey not considered revoked unless re- 
 vocation recorded . . . . . . 273 118 
 
 not governed by Article IV ..... 110 78 
 
 real property is not a " oonveyanoe "... 240 109 
 of disposition is absolute when grantee in his lifetime 
 
 can dispose of fee for his own benefit . . 133 81 
 
 of life tenant to make leases ..... 135 81 
 
 is extinguished if excepted from his grant or if released 135 81 
 
 may be released . . . . . ... 135 81 
 
 omission to recite in instrument conveying its grantee's 
 
 estate ........ 155 84 
 
 purchaser under defective execution of relieved . . 160 84 
 
 reservation of ....... 124 79 
 
 special ........ 115 78 
 
 subject to condition ...... 134 81 
 
 until vested is not subject to §§ 130 to 133 . . 134 81 
 
 to devise, effect of in oertain cases .... 132 81 
 
 to dispose by devise or will must be by legally executed 
 
 written will 147 83 
 
 by grant cannot be executed by a will . . . 148 83 
 
 to revoke, effect of ...... 125 80 
 
 reserved to grantor's benefit, he is still absolute owner 125 80 
 
 to sell in a mortgage ...... 126 80 
 
 in default of payment of mortgage . . . 219 98 
 too extensive disposition or charge by virtue of, is not 
 
 void 157 84 
 
 though power of revocation only, Instrument executing 
 
 is a " conveyance " ..... 240 109 
 
 trust power, when imperative .... 137 81 
 
 when power a Hen or charge ..... 127 80 
 
 when devise operates as execution of ... 156 84 
 
 when grantee of power has absolute fee . . . 131 80 
 
 Powers ....... Article IV. 90 
 
 abolished as they existed 31 Dec. ,1829 . . . 110 78 
 
 eertain powers create a fee ..... ISO 80 
 
 certain devises to be deemed ..... 77 71 
 
 division of ........ 113 78 
 
 governed after 1 Oct., 1896, by Article IV . . . 110 78 
 
 of attorney, reoording exeoutory contracts, and powers 244 110 
 of courts of equity to compel specific performance are 
 
 not abridged by Article VII .... 234 107 
 
 trust powers, and grantees of trust powers, are af- 
 fected by §§ 91, 92, 93 162 85 
 
 Preference according to time of record, twe or more 
 
 mortgages on property in adverse possession 225 105 
 
232 
 
 106 
 
 51 
 
 67 
 
 52 
 
 68 
 
 50 
 
 67 
 
 76 
 
 71 
 
 76 
 
 71 
 
 220 
 
 101 
 
 53 
 
 68 
 
 253 
 
 112 
 
 154 ANALYTICAL INDEX. 
 
 Premises may be surrendered by tenant or occupant, 
 
 ■when 197 92 
 
 '< Present estate " is included In " estate "or " interest 
 
 in real property" ...... 205 95 
 
 Preserving trust estate, court may authorize mortgage 
 
 or sale ........ 85 72 
 
 Presumptive evidence, recorded affidavits proving 
 deaths of parties and certifying officer to deed 
 acknowledged without the state . . . 262 115 
 
 Principal sum shall become due, covenant or agreement 
 
 in mortgages and bonds ..... 219 98 
 
 if interest defaulted 219 98 
 
 if default in tax or assessment .... 219 98 
 
 Prison wi thou i bail for neglect or refusal of witness to 
 
 conveyance to testify under subpeena . . . 254 112 
 
 Proceeding void as to creditors, purchasers or encum- 
 brancers, is void as to their heirs, successors, repre- 
 sentatives or assigns ..... 228 105 
 Proceeds of sale under judgment in creditor's action to 
 set aside transfer, etc., of deoeased insolvent may 
 be brought into court ..... 
 Profits, and rents, accumulation void except as allowed 
 
 anticipation of directed accumulation of . 
 
 disposition of, governed by rules for future estates 
 
 express trust to receive, and apply to use of person 
 during life or for shorter term .... 
 
 Profits, express trust to receive and accumulate 
 
 included in grant of appurtenances and all estate 
 
 undisposed belong to next eventual estate 
 Proof by subscribing witness ..... 
 
 of conveyance by judge of Canadian court of record 
 
 must be authentio&ted by clerk of oourt . . 260 114 
 
 by JT. Y. commissioner must be authenticated by Secre- 
 tary of State 260 114 
 
 by official of one of V. S„ or of Canada, must be au- 
 thenticated by Secretary of State of State, or clerk, 
 register, recorder, or prothonotary of county, or 
 clerk of court of county having seal . . . 260 114 
 
 certificate of by officer taking .... 255 112 
 
 contents of certificate of authentication . . . 261 114 
 
 of Canadian authentication ..... 261 114 
 
 executed but not nroved before 1 Oct., 1896 . . 243 109 
 
 without the state whore parties and certifying offloer 
 
 are dead 262 115 
 
 must be a uthentiealed in certain cases . . . 260 114 
 
 of Holland Land Co., or of Pulteney estate, does not 
 
 need county clerk's certificate .... 259 114 
 
 taken out ofN. Y., before N. T. commissioner, mayor of 
 
 foreign city, or any TJ. S. official, must be under seal 257 113 
 
 where witnesses are dead ..... 263 115 
 
 of execution of conveyance can only be made by witness 
 
 who subscribed at time of execution . . . 242 109 
 
 of instrument, or acknowledgment, must also be re- 
 corded to entitle record or transcript read in 
 evidence 267 117 
 
 of letters patent granting real property not neoessary 
 
 other than great seal of state .... 245 110 
 
 taken by N. Y. commissioner out of If. Y. and in U. S. 
 
 must state day and place .... 256 113 
 
 Proofs of conveyances by married women within the 
 state same as by unmarried .... 
 
 in Canada ........ 
 
 in foreign countries ...... 
 
 in Great Britain and Ireland ..... 
 
 in other states ....... 
 
 within the state ....... 
 
 of deeds, mortgages or other Instruments, made in due 
 form before U. S. official before 1 April, 1896, are 
 confirmed ....... 
 
 Proper execution adjudged where execution of trust 
 power defective ...... 
 
 Properties of estate in common .... 
 
 injoint tenancy ....... 
 
 in severalty ....... 
 
 " Property » included in grant of appurtenances and all 
 
 estate . . - . . . . . 820 101 
 
 251 
 
 112 
 
 250 
 
 111 
 
 250 
 
 111 
 
 250 
 
 111 
 
 249 
 
 111 
 
 248 
 
 110 
 
 257 
 
 113 
 
 143 
 
 82 
 
 55 
 
 68 
 
 55 
 
 68 
 
 55 
 
 68 
 
240 
 
 109 
 
 160 
 
 84 
 
 2 
 
 60 
 
 REAL PROPERTY LAW. 155. 
 
 8E0TI0K. PAGK. 
 Property inherited or devised, mortgages on . . 215 96 
 
 Provision in lieu of dower takes effect on forfeiture 
 
 in person in whom it would have yestec by death 182 89 
 
 when forfeited . . . . . . . 182 89- 
 
 Pnlteney estate, county clerk's authentication to certifi- 
 cate of acknowledgment not necessary . . 259 114 
 Purchase money mortgage, surplus proceeds of sale 
 
 under ........ 174 87 
 
 Purchase of lands, executory oontract for, is not a 
 "conveyance" ...... 
 
 under defective execution of power 
 
 who may take hy ...... 
 
 Purchaser for valuable consideration, conveyance to Is 
 valid after conveyance providing for revocation, 
 although same not expressly revoked . . 231 108 
 
 withou r notice, title not affected or impaired hy 
 
 Article VII 230 106 
 
 includes every person to whom property is conveyed 
 
 for valuable consideration, and every assignee of 
 
 mortgage, lease or other conditional estate . 240 109 
 
 subsequent, not affected by grant not acknowledged or 
 
 witnessed ....... 
 
 unrecorded conveyance void as to subsequent bona fide 
 with notice, conveyance ".or oharge fraudulent as to 
 subsequent, if grantee was privy to fraud ' . 
 Purchasers, bona fide proteoted .... 
 
 conveyance void as to, is void as to their heirs or as- 
 signs ........ 
 
 conveyances void with intent to defraud 
 power is a lien against, from time of record 
 subsequent, without notice, protected against express 
 
 trust not contained in conveyance to trustee 
 when heirs of life tenant take as 
 Pnrposes for which express trusts may be created 
 Qualities of expectant estates ..... 
 
 Quarantine, widow's ...... 
 
 Question of fact, fraudulent intent is 
 
 Quiet enjoyment, covenant of .... 
 
 Raising funds to preserve or improve trust estate, court 
 
 may authorize mortgage or sale ... 85 72 
 
 Real Property advancement must be adjusted from 
 surplus of real property descendible to heirs, if 
 
 possible 296 125 
 
 descends subject to execution of a valid power in 
 
 trust ........ 79 71 
 
 " Seal Property " in Article VIII includes lands, tene- 
 ments and hereditaments and chattels real except 
 lease for not over 3 years .... 240 109 
 
 in Article IX includes every estate, interest, right, 
 legal and equitable, except those determined or 
 extinguished by death of intestate; leases for 
 years; estates for life of another, and property 
 held in trust not devised by beneficiary . . 280 121 
 
 in the Real Property Law ..... 1 go 
 
 to descend to heirs or devisees subject to execution of 
 
 power ........ 77 71 
 
 Real Property I. aw ...... 1 60 
 
 does not affect acts for recording and indexing New 
 
 York city under block system .... 275 118 
 
 does not alter or impair anything that has taken ef- 
 fect before 1 Oct., 1896 1 60 
 
 Receive and accumulate rents and profits, express 
 
 trust to ....... 76 71 
 
 Beceive rents and profits, express trust to, and apply 
 
 to use of any person during life or shorter term . 76 71 
 
 Receiver may disaffirm any fraudulent act . . 232 106 
 
 may have damages for fraudulent interference with 
 real property of deceased, or of insolvent corpora- 
 tion, association, partnership or individual . 232 106 
 of trust estate may he appointed by court pending 
 
 appointment of new trustee .... 92 74 
 
 Recite power, omission to, from instrument conveying 
 
 estate of grantee ...... 155 84 
 
 Record cancelled of certain instruments, actions to have 276 118 
 
 of acknowledgment or proof also necessary for record 
 
 or transcript of instrument to be read in evidence 267 117- 
 
 208 
 
 95 
 
 241 
 
 109 
 
 226 
 
 105 
 
 75 
 
 71 
 
 228 
 
 105. 
 
 226 
 
 105 
 
 127 
 
 80 
 
 84 
 
 72 
 
 44 
 
 66 
 
 76 
 
 71 
 
 49 
 
 67 
 
 184 
 
 89 
 
 229 
 
 106 
 
 218 
 
 97 
 
156 ANALYTICAL INDEX. 
 
 SECTION. PAGE. 
 
 of revocation ...... 273 118 
 
 or transcript of instrument cannot be read in evidence 
 
 unless acknowledgment or proof also recorded . 267 117 
 
 Kecordcd and indexed like lis pendens, order enlarging 
 
 widow's time to elect ..... 181 83 
 
 conveyance, lawfully exeouted, acknowledged, proved, 
 certified before 1 Oct., 1896, but not recorded, 
 maybe 243 109 
 
 from time of delivery to recording officer, every instru- 
 ment is considered ...... 266 117 
 
 Recording and indexing acts for New York city block 
 
 system not affected by this Real Property Law . 275 118 
 
 assignment is no notioe to mortgagor or his beirs or 
 
 representatives ...... 271 118 
 
 assignment of mortgage, effect of .... 271 118 
 
 Recording books for deeds and mortgages . . 264 116 
 
 Recording copies of instruments which are in Secretary 
 
 of State's office 246 110 
 
 discharge of mortgage ...... 270 117 
 
 executory contracts and powers of attorney . . 244 110 
 
 Instruments Affecting Real Property . . Article Till. 108 
 
 of conveyances ....... 241 109 
 
 acknowledged or proved without the state, where 
 
 parties and certifying offioer are dead . . 262 115 
 
 heretofore acknowledged or proved . . . 243 109 
 
 made by treasurer of Connecticut .... 272 118 
 
 of letters patent granting real property . . . 245 110 
 
 " Recording officer " means county clerk except in New 
 York, Kings and Westchester, where it means 
 register of the oounty ..... 240 109 
 
 must enter on record hour, day, month and year of 
 record, and indorse same on Instrument with book 
 and page 268 117* 
 
 must record instruments in the order and as of the time 
 
 of delivery to him therefor .... 266 117 
 
 must record satisfaction or disoharge of mortgage and 
 
 note same on record ..... 270 117 
 
 Recording, order of ..... 266 117 
 
 lime of 268 117 
 
 Referee's deed must be indexed also against eachperson 
 
 whose right, title or interest was sold . . . 265 116 
 
 Refusal of witness to conveyance to testify under sub- 
 poena, forfeit 8100, and notary may send to prison 
 without bail T . ... . . 254 112 
 
 or neglect of life-tenant to pay interest on mortgage or 
 other lien, remainderman may pay and recover 
 amount, with interest, from life-tenant . . 233 107 
 
 Register is (he recording officer in New York, Kings and 
 Westchester oounties, in others it is the oounty 
 olerk 240 109 
 
 may charge $5 in addition to fees for recording Instru- 
 ments using long forms of covenants . . 274 118 
 Relatives begotten before death of intestate but born 
 thereafter inherit as if born in his lifetime 
 
 of the half -blood ....... 
 
 excluded if not of blood of anoestor from whom ' de- 
 scent, devise, or gift oame .... 
 
 inherit equally with whole blood, when . 
 
 when collateral inherit ...... 
 
 Release dower, divorced woman may 
 
 married woman may, by attorney .... 
 
 Religious uses, conveyance or devise for, not invalid 
 
 for indeflniteness or uncertainty of benefloiaries . 
 
 Remainder, definition of ..... 
 
 im, fee on fee tail to vest on death of first taker . 
 
 valid as contingent limitation .... 
 
 tomiled on estate for life in term of years 
 
 limited to heirs for life tenant, they take as purchasers 
 
 may be limited on a contingency .... 
 
 not limited on contingency defeating preoedent estate 
 when takes effect ...... 
 
 of freehold or chattel real on determination of term of 
 years ........ 
 
 on lives of more than twopersons .... 
 
 on term of years, contingent ..... 
 
 estate for life as . 
 
 292 
 
 124 
 
 290 
 
 123 
 
 290 
 
 123 
 
 290 
 
 123 
 
 286 
 
 122 
 
 186 
 
 89 
 
 187 
 
 89 
 
 93 
 
 75 
 
 28 
 
 64 
 
 22 
 
 63 
 
 22 
 
 63 
 
 40 
 
 65 
 
 44 
 
 66 
 
 43 
 
 66 
 
 45 
 
 66 
 
 40 
 
 65 
 
 35 
 
 65 
 
 36 
 
 65 
 
 37 
 
 65 
 
REAL PROPERTY LAW. 
 
 157 
 
 Remainderman, when life tenant neglects or refuses 
 
 to pay Interest on mortgage or other lien, may pay, 
 
 and recover amount, with interest, from life tenant 
 
 Remainders, effect on valid, of determination of pre' 
 
 oedent estate before contingency 
 
 included in grant of appurtenances and all estate 
 
 meaning of "heirs" and "issue" in certain, 
 
 on estates tail ...... 
 
 on life of third persons ..... 
 
 Remoteness does not prevent equal parts to collateral 
 
 relatives of equal degree of consanguinity . 
 
 to lineal descendants in equal degree 
 
 Removal of trustee may be made by court, except in 
 
 implied trust ...... 
 
 Renewal, effect of on sub-lease 
 
 Rent apportionable, when .... 
 
 doubled where tenant holds over after giving notioe of 
 intention to quit ..... 
 
 due on life leases recoverable 
 in New York city under agreement not specifying dura- 
 tion of occupation continues to May 1st next after 
 possession commences under agreement, and is 
 payable on usual quarter days .... 
 
 may bepaid to grantor before notice of conveyance 
 tenant not liable for, after surrender 
 Rents and profits, accumulations, void except as allowed 
 anticipation of directed accumulation of 
 disposition governed by rules for future estates 
 express trust to receive and accumulate 
 and apply to use of person during life or shorter term 
 "Rents" included in grant of appurtenanoes and all estate 
 Repealed, Revised statutes hereby .... 
 
 schedule of laws ...... 
 
 that portion of laws specified in last column of 
 schedule annexed ...... 
 
 Representatives, conveyance void as to personal, if void 
 as to creditor, purchaser or encumbrancer . 
 of grantor or mortgagor, covenants to bind 
 Reqmsites of acknowledgments .... 
 
 Reservation of power ...... 
 
 to revoke to grantor he is still absolute owner . 
 Resignation of trustee may be accepted by court, ex- 
 cept in implied trust ..... 
 
 or removal of trustee, appointment of successor 
 Resist any act done In fraud of creditors, an executor, 
 administrator, receiver, assignee, or other trustee 
 may ........ 
 
 any fraudulent act of deceased insolvent debtor, a 
 creditor for over $100 may .... 
 
 Resulting trust shall not defeat title of bona fide pur- 
 chaser without notioe ..... 
 
 Reversion, definition of . 
 
 Reversions, estates in expectancy .... 
 
 included in grant of appurtenances and all estate 
 Revised statutes, parts of repealed hereby 
 Revocation only, instrument executing power of, is a 
 "conveyance" ...... 
 
 toberecorded 
 " Right," " all " included in grant of appurtenanoes 
 and all estate ...... 
 
 and interest of beneficiary of any other trust than to re- 
 ceive and apply rents and profits may be transferred 
 of beneficiary of express trust to receive Tents and 
 profits and apply to use of any person can not be 
 transferred by assignment or otherwise . 
 of curtesy inoluded in grant of appurtenances and all 
 rights ....... 
 
 of dower included in grant of appurtenanoes and all 
 rights ........ 
 
 to convey, covenant of good right .... 
 
 to possession, when creates legal ownership 
 to select beneficiaries and exclude others, trust power 
 still remains imperative . 
 Rights of purchaser or encumbrancer for valuable con- 
 sideration protected . 
 where property or lease is transferred , 
 
 SECTION. 
 
 233 
 
 48 
 220 
 38 
 22 
 34 
 
 286 
 282 
 
 92 
 196 
 192 
 
 199 
 
 191 
 
 202 
 
 213 
 197 
 51 
 52 
 50 
 76 
 76 
 220 
 
 300 
 
 228 
 222 
 252 
 124 
 125 
 
 92 
 92 
 
 232 
 232 
 
 220 
 
 83 
 
 83 
 220 
 
 220 
 
 218 
 71 
 
 137 
 
 230 
 193 
 
 106 
 
 67 
 101 
 65 
 63 
 65 
 
 122 
 122 
 
 74 
 92 
 91 
 
 92 
 91 
 
 93 
 
 96 
 
 92 
 
 67 
 
 68 
 
 67 
 
 71 
 
 71 
 
 101 
 
 126 
 
 126 
 
 125 
 
 105 
 101 
 
 112 
 79 
 80 
 
 74 
 74 
 
 107 
 
 107 
 
 71 
 
 64 
 
 63 
 
 101 
 
 126 
 
 109 
 
 118 
 
 101 
 
 72 
 
 72 
 
 101 
 
 101 
 97 
 70 
 
 81 
 
 106 
 91 
 
SECTION. 
 281 
 
 X2X 
 
 209 
 
 95 
 
 85 
 
 85 
 
 224 
 
 240 
 
 72 
 
 72 
 
 105 
 
 109 
 
 76 
 
 71 
 
 223 
 
 102 
 
 223 
 
 102 
 
 223 
 
 1«3 
 
 
 
 126 
 
 158 ANALYTICAL INDEX 
 
 Rolfs of descent, general . 
 
 Rules of law now in force [1 Oet., 1896] in respect to- de- 
 livery of deeds apply to grants hereafter executed 
 Sale by trustee in contravention of trust expressed in In- 
 strument creating estate is void 
 by trustee may be authorized by court 
 contract of, void unless written 
 
 of lands, executory contract for is not a " convey ance " 
 
 of premises may be decreed in suit of creditor to set 
 
 aside deed, etc., of deceased insolvent, together 
 
 ■with distribution of proceeds .... 232 106 
 
 of trust estate which is an undivided share may be 
 
 authorized toy court ..... 85 72 
 
 of trust property by trustee by order of court must be on 
 
 notice to beneficiary ..... 87 72 
 
 8 a lisfac tioo of mortgage must be recorded, and noted 
 
 on record 270 117 
 
 Satisfying charge on real property, express trust to 
 
 sell, mortgage or lease for purpose of 
 Schedule A, Deed with full covenants, short form 
 Schedules, Executor's deed, short form . 
 Schedule C, Mortgage, short form .... 
 Schedule of Lbwn Repealed _ • • • 
 
 Schenectady county, Article Till, does not apply to 
 leases for life or lives, or for years, heretofore 
 
 made [1 Oct., 1896] 240 109 
 
 Seal must be affixed to acknowledgment or proof by N. Y. 
 commissioner out of state, mayor of foreign city, 
 
 or U. S. official 257 113 
 
 of the State, not acknowledgment or proof, necessary 
 
 to recording letters patent granting real property. 245 110 
 
 Secretary of State's office, copies of instruments in, 
 
 may be certified and recorded .... 246 110 
 
 Secretary of State to authenticate acknowledgment or 
 
 j>roof toy N. T. commissioner .... 260 114 
 
 Securities in the nature of mortgages recorded in mort- 
 gage toooks ....... 
 
 Seizin, covenant of . 
 
 livery of, has been abolished ..... 
 
 Select beneficiaries and exclude others, right to, does not 
 
 make trust power less imperative 
 Sell, contract to. void unless written .... 
 
 mortgage or lease for benefit of annuitants, or legatees, 
 or to satisfy any charge on real property, express 
 trust to ........ 
 
 real property for benefit of creditors, express trust to . 
 Several parcels in one conveyance or mortgage, certi- 
 fied copy may toe recorded in any county where 
 parcel situate . .... 
 
 Several persons take an Inheritance as tenants in 
 common ..... 
 
 Severalty, estate in ...... 
 
 Sheriff's deed must toe indexed also against each person 
 
 whose right, title or Interest was sold 
 Short form of deed wi th full covenants 
 
 of mortgage ....... 
 
 of executor's deed ...... 
 
 Short Title ...... 
 
 Sisters and brothers and their descendants take by 
 descent per stirpes and not per capita . 
 
 of father and mother, and their descendants, how take 
 by descent ....... 
 
 Sole inheritance, or in common .... 
 
 Special covenants in a conveyance do not cause any 
 implied covenants ...... 
 
 Special power ....... 
 
 in trust ........ 
 
 Specific performance, powers of courts of equity to 
 
 compel, not abridged by Article VII . 
 State, great seal of, not acknowledgment or proof, 
 necessary to recording letters patent granting real 
 property ....... 
 
 acknowledgments and proofs within the 
 Slate's office, copies of instruments in Secretary of, may be 
 certified and recorded ..... 
 
 Stales, other, acknowledgments and proofs in 
 
 264 
 218 
 206 
 
 116 
 97 
 95 
 
 137 
 224 
 
 81 
 105 
 
 76 
 76 
 
 71 
 
 71 
 
 247 
 
 110 
 
 293 
 55 
 
 124 
 68 
 
 265 
 223 
 223 
 223 
 
 1 
 
 116 
 102 
 103 
 102 
 60 
 
 287 
 
 122 
 
 288 
 293 
 
 123 
 124 
 
 216 
 
 115 
 118 
 
 97 
 78 
 79 
 
 234 
 
 107 
 
 245 
 248 
 
 110 
 
 110 
 
 246 
 249 
 
 110 
 
 111 
 
REAL PROPERTY LAW. 
 
 159 
 
 Statutes, parta of Revised, repealed hereby 
 Sub-lease, effect of renewal on' .... 
 
 Subposna of notary, or other officer, must he obeyed by 
 
 witness to conveyance . 
 Subsequent bona flde encumbrancer acquires superior 
 title by conveyance first duly recorded 
 bona flde purchaser aoquires superior title by convey- 
 ance first duly recorded . 
 unrecorded conveyance void as to . 
 creditors without notice protected against express trust 
 
 not contained in conveyance to trustee 
 encumbrancer not affected by grant not acknowledged 
 or witnessed . . . . . . 
 
 purchaser not affeoted by grant not acknowledged or 
 witnessed ....... 
 
 purchaser or encumbrancer for valuable consideration, 
 conveyance to is valid after conveyance providing 
 for revocation, although same not expressly re- 
 voked by grantor, or by third party holding power 
 to revoke ....... 
 
 with notioe, yet conveyance not fraudulent unless 
 grantee privy to fraud ..... 
 
 purchaser without notice protected against express 
 trust not contained in conveyance to trustee 
 Subscribing witness, proof by ... 
 
 Successive estates for life, limitation of . 
 Successors, conveyance void as to, if void as to creditor, 
 purchaser or encumbrancer .... 
 
 Successors of grantee or mortgagee, benefit of 
 of grantor or mortgagor, covenants to bind 
 Sufferance, estates by are chattel interests ; not liable 
 as such to sale on execution .... 
 
 termination by notice, of tenancy Dy sufferance 
 Sullivan County, Artiole VIII. does not apply to leases 
 for life or lives, or for years, heretofore made [1 
 
 Oot., 1896] 
 
 Support and education maybe ordered destitute minor 
 entitJed to expectant estate .... 
 Surplus income of trust property liable to creditors 
 Surplus proceeds of sale under purchase money mort- 
 gage 
 
 Surrender and renewal of lease by landlord and lessee 
 do not impair any right or interest of either, or of 
 under-lessee ....... 
 
 of premises by tenant or occupant, when . 
 of under-lease not requisite to surrender of original 
 lease where new lease given .... 
 
 Survivor or survivors of those in whom vested may 
 execute power ...... 
 
 Survivor's consent sufficient to execution of power 
 
 needing consent of two or more 
 Suspension, computation of term of 
 
 of power of alienation ...... 
 
 as to chattels real ...... 
 
 Tail, estates abolished; remainder thereon . 
 Take a special and beneficial power, capacity to 
 
 and execute power, capacity to ... . 
 
 power, capacity of married woman to 
 Takes effect only from delivery, grant 
 this Real Property Law, 1 Oct., 1896 
 Taxes in default, principal to become due in mort- 
 gages and bonds ...... 
 
 Tenancy at will or by sufferance, termination by notice . 
 by the curtesy, Article IX. (Descent) does not affect 
 in common ....... 
 
 unless expressed to be in joint tenancy 
 
 joint, every estate vested in executors or trustees is . 
 
 must be expressly declared ..... 
 
 Tenant aud landlord liable severally and jointly for 
 damages resulting from occupancy for unlawful 
 purpose ....... 
 
 Tenant, attornment by ..... 
 
 not requisite to validity of conveyance of property 
 occupied by him ...... 
 
 attornment to stranger absolutely void 
 
 for life may take power to make leases for 21 years . 
 
 11 
 
 SECTION. 
 
 196 
 
 254 
 
 210 
 
 210 
 241 
 
 84 
 208 
 208 
 
 231 
 226 
 
 196 
 146 
 
 PAGE. 
 
 126 
 
 92 
 
 112 
 
 96 
 
 96 
 109 
 
 72 
 
 95 
 
 95 
 
 106 
 105 
 
 84 
 
 253 
 
 33 
 
 72 
 
 112 
 64 
 
 228 
 222 
 222 
 
 105 
 101 
 101 
 
 23 
 198 
 
 63 
 92 
 
 240 
 
 109 
 
 52 
 
 78 
 
 68 
 71 
 
 174 
 
 87 
 
 196 
 197 
 
 92 
 92 
 
 92 
 83 
 
 154 
 
 84 
 
 158 
 
 84 
 
 32 
 
 64 
 
 39 
 
 65 
 
 22 
 
 63 
 
 123 
 
 79 
 
 121 
 
 79 
 
 122 
 
 79 
 
 209 
 
 95 
 
 301 
 
 125 
 
 219 
 
 98 
 
 198 
 
 92 
 
 280 
 
 121 
 
 55 
 
 68 
 
 56 
 
 68 
 
 56 
 
 68 
 
 56 
 
 68 
 
 201 
 
 93 
 
 194 
 
 91 
 
 213 
 
 96 
 
 194 
 
 91 
 
 123 
 
 79 
 
160 
 
 ANALYTICAL INDEX. 
 
 for life or years, conveyance by him of greater estate 
 than he possesses does not work forfeiture, but 
 passes all he has ...... 211 
 
 with general or beneficial power to devise inheritance 
 
 has absolute fee under §§ 129, 130. 131 . . 132 
 
 holding over after giving notice of intention to quit, 
 
 liability of 199 
 
 after receiving 30 days' notice to quit liable to double 
 
 rent and damages ; no equitable defence to this . 200 
 
 may pay rent to grantor before notice of conveyance . 213 
 
 must forthwith give notice to landlord of process or 
 
 summons or forfeit three years' rent . . . 195 
 
 not liable to grantee for breaeh of lease before notice of 
 
 conveyance ...... 213 
 
 not liable to pay rent after surrender . . . 197 
 
 or occupant may surrender premises when . . 197 
 
 Tenants in common, inheritance descending to several 
 
 persons they take as ..... 293 
 
 Tenements ........ 1 
 
 in Article VIII. (Recording) included in term •' real 
 
 property" ....... 240 
 
 included in grant of appurtenances and all estate . 220 
 
 Tenureof Real Property .... Article I. 
 
 Term " conveyance" in Article VIII. (Recording) includes 
 
 every written instrument, except will, lease for 
 
 not over 3 years, executory contract, and power of 
 
 attorney to convey ..... 
 
 in Article Til (Conveyances) includes every instru- 
 ment except a will ..... 
 
 " died" in Article IX. (Descent) 
 
 " heirs," or other words of Inheritance not necessary 
 to create or convey estate In fee 
 
 "inheritance" in Article IX. (Descent) 
 
 "living" in Article IX. (Descent) 
 
 not exceeding 3 years, instrument is not a " convey 
 ance" ....... 
 
 Term of years, contingent remainder on . 
 
 estate for life in . 
 
 estate for life as remainder on 
 Term of suspension, computation of 
 
 Term "on the part of the father " or " mother " in Artiole 
 IX. (Descent) ...... 
 
 "purchaser" in Article VIII. (Recording) includes 
 every person to whom any estate or interest is 
 conveyed for valuable consideration, and every 
 assignee of mortgage, lease, or other conditional 
 estate ........ 
 
 " real property " in Artiole Vin. (Reoording) includes 
 lands, tenements, hereditaments, and chattels 
 real except lease for not over 3 years 
 
 in Artiole IX. (Desceni) ..... 
 
 "recording officer" in Artiole VUI. means county 
 clerk except in New York, Kings or Westchester 
 counties, where it means register 
 Termination of life estate or for years, tenant holding 
 over after 30 days' notice to quit liable to double 
 rent and damages. So equitable defence to this . 
 
 of trusts for benefit of creditors .... 
 Terms, definitions and use of in Article VIII. (Record- 
 ing) 
 
 in Article IX. (Descent) ..... 
 
 in Article I. (Tenure) ...... 
 
 in Artiole VII. (Conveyances and Mortgages) 
 
 terms "estate" and "interest in real property" in 
 
 Article VII. (Conveyances and Mortgages) include 
 
 every such estate and interest .... 
 
 Testator omitted to designate by whom, execution of 
 
 power in trust devolves on court 
 
 Testator's power to dispose by will not affeoted by § 207. 
 Threatening to violate his trust, trustee may be re- 
 moved ........ 
 
 Three years' lease or under is not a "conveyance" 
 
 not included in term " real property " in Article Vin. 
 (Recording) ..... 
 Time of creation of expectant estate by devise is death of 
 testator .... . . 
 
 240 
 
 205 
 280 
 
 205 
 280 
 280 
 
 240 
 36 
 37 
 40 
 
 158 
 
 280 
 
 240 
 
 240 
 280 
 
 240 
 
 96 
 
 81 
 
 92 
 
 93 
 96 
 
 91 
 
 96 
 92 
 92 
 
 124 
 60 
 
 109 
 101 
 
 60 
 
 109 
 
 95 
 121 
 
 95 
 121 
 121 
 
 109 
 65 
 65 
 65 
 
 84 
 
 121 
 
 109 
 
 109 
 
 121 
 
 109 
 
 200 
 90 
 
 93 
 
 74 
 
 240 
 
 280 
 
 1 
 
 205 
 
 109 
 
 121 
 
 60 
 
 95 
 
 205 
 
 95 
 
 141 
 207 
 
 82 
 95 
 
 92 
 240 
 
 74 
 109 
 
 240 
 
 109 
 
 54 
 
 68 
 
ION. 
 
 54 
 
 25 
 
 152 
 
 PAGE. 
 68 
 63 
 83 
 
 269 
 268 
 
 117 
 117 
 
 242 
 
 109 
 
 158 
 
 181 
 
 84 
 88 
 
 220 
 218 
 219 
 
 101 
 
 97 
 
 100 
 
 230 
 
 7 
 
 106 
 61 
 
 240 
 219 
 
 109 
 100 
 
 REAL PROPERTY LAW. 161 
 
 by grant Is delivery of the grant . , 
 
 of enjoyment of estates ..... 
 
 of execution of power, grantor's Intent to be observed 
 
 of record of defeasance must be same wltb reeord of 
 deed Intended as security for grantee to derive 
 advantage from record .... 
 
 o/reconJinjrlnstruments .... 
 
 of subscription by proving witness must be same as exe- 
 cution of conveyance ..... 
 
 of suspension of alienation dates from creation of 
 power ....... 
 
 of widow to elect may be enlarged by court 
 " Title," " all," Included In grant of appurtenances and 
 all estate ...... 
 
 Title, covenant of warranty of .... 
 
 further assurance of in mortgage 
 
 of purchaser or encumbrancer for valuable considera- 
 tion, without notice, not affected or Impaired by 
 Article VII. (Conveyances and Mortgages) . 
 
 through alien can not be questioned 
 
 to any real property may be affected, any instrument by 
 which, except will, lease for not over 3 years, exe- 
 cutory contract, and power of attorney to convey, 
 is a " conveyance " .... 
 
 warranty of, in mortgage .... 
 
 Too extensive disposition by virtue of power or 
 
 charge is not void ...... 157 84 
 
 Transcript of record of instrument oan not be read In 
 evidence unless acknowledgment or proof has also 
 been recorded ...... 267 117 
 
 Transfer in fraud of creditor by deceased insolvent 
 debtor may be disaffirmed, treated as void and 
 resisted by creditor for over $100 . . . 232 106 
 
 may be disaffirmed, treated as void, resisted by execu- 
 tor, administrator, receiver, assignee, or other 
 trustee ....... 
 
 real property, capacity to transfer .... 
 
 Transferee of trust property protected 
 Transferring any estate or interest, any instrument 
 except will, lease for not over 3 years, exeoutory 
 contract, or power of attorney to convey, Is a " con- 
 veyance" 240 109 
 
 Treasurer of Connecticut, recording conveyances 
 
 made by 272 118 
 
 Treat as void any act in fraud of creditors, an exeoutor, 
 administrator, receiver, assignee or other trustee 
 may 232 106 
 
 any fraudulent act of deceased insolvent debtor, creditor 
 
 for over $100 may 232 106 
 
 Trust, any other than to receive and apply rents and profits, 
 rieht and interest of beneficiary may be transferred 
 
 arising by implication of law, § 92 does not apply 
 
 §§ 70 to 73 do not affect ..... 
 
 authorized, when valid as a power 
 
 can only be created by written instrument . 
 
 created but not contained m conveyance to trustee, con- 
 veyance shall be absolute as to subsequent credi- 
 tors and purchasers without notice ... 84 72 
 
 estate which is undivided, share may be ordered sold by 
 
 court ......... 85 72 
 
 for benefit of creditors shall cease after 25 years, and 
 
 revert to assignor ...... 90 74 
 
 for receipt of rent and profits, beneficiary entitled to 
 
 remainder in whole or in part may release . . 83 72 
 
 implied or resulting, shall not defeat title of bona fide 
 
 purchaser without notice .... 75 71 
 
 in favor of person paying consideration, where grantee 
 
 takes without former's knowledge ... 74 70 
 
 interest, what may be alienated .... 83 72 
 
 may arise or be extinguished by operation or implica- 
 tion of law ....... 207 95 
 
 not specified in § 76 vests no estate in trustee, but may 
 
 be valid as a power ..... 79 71 
 
 not to descend ....... 91 74 
 
 power, proper execution may be adjudged where exe- 
 cution defective ...... 143 82 
 
 232 
 
 106 
 
 3 
 
 60 
 
 84 
 
 72 
 
 83 
 
 72 
 
 92 
 
 74 
 
 73 
 
 70 
 
 79 
 
 71 
 
 207 
 
 95 
 
SECTION. 
 
 PAGE. 
 
 137 
 
 81 
 
 162 
 
 85 
 
 78 
 
 81 
 
 84 
 
 72 
 
 86 
 
 73 
 
 162 ANALYTICAL INDEX. 
 
 when imperative . 
 
 powers are affected by §§ 91, 92, 93 . 
 
 property, creditors can olaim surplus income of 
 transferee of, protected 
 
 when may he leased by trustee . • 
 
 results in favor of another where grantee, in violation 
 of trust, purchases with money or property of 
 former ■ ■ ^4 70 
 
 of creditors of latter, from grant to one, when con- 
 sideration paid by another ...- 74 70 
 
 to receive and apply rents and profits, beneficiary can- 
 not assign or transfer right . . . • 83 72 
 
 valid as a power, property remains or descends subject 
 
 to execution of trust as powr . . ■ ■ 79 71 
 
 Trustee can not be removed, nor resignation be accepted, 
 
 by court if trust arise by implication of law . 92 <4 
 
 estate of shall cease and merge when beneficiary entitled 
 to remainder releases his interest In rents and 
 profits 83 72 
 
 may oe authorized by court to mortgage or sell for best 
 interest of estate, or for preserving or improvingit 
 
 to pay for building at end of lease .... 
 
 may disaffirm any fraudulent act . • ... 
 
 may have damages for fraudulent interference with 
 real property of deceased, or of insolvent corpora- 
 tion, association, partnership or individual . , 
 
 may lease for five years without leave of court 
 
 may lease trust property when .... 
 
 not named under grant or devise designating uncertain 
 beneficiaries, supreme court shall have control 
 
 for charitable uses, legal title shall be in Supreme 
 court ........ 
 
 of estate takes a beneficial trust power 
 
 of express trust to have whole estate .... 
 
 of passive trust not to take ..... 
 
 of trust with power of disposition, prior to 1830, not 
 divested ....... 
 
 on death of last trustee, trust estate vests in Supreme 
 court ........ 
 
 resignation or removal of, appointment of sucoessor 
 
 shall have legal title under grant or devise designating 
 uncertain beneficiaries ..... 
 
 who is for any cause unsuitable person may be removed 
 
 who is insolvent may be removed .... 
 
 who threatens to violate trust may be removed 
 
 who violates trust may be removed .... 
 
 whose insolvency is apprehended may be removed 
 
 with power of selection unexecuted, on death of, bene- 
 ficiaries share equally ..... 140 82 
 Trustee's deed or grant of appurtenances and of estate 
 
 of testator and grantor ..... 220 101 
 
 estate ceases when purpose for which trust created 
 
 ceases ........ 89 74 
 
 lease for over 5 years made before 1895 may be con- 
 firmed by court 86 73 
 
 sale, conveyance, or act in contravention of trust ex- 
 pressed in instrument creating estate is void 
 Trustees, estate vested in, is always, in joint tenancy 
 Trusts and uses abolished ..... 
 Trusts, express, purposes for which may be created 
 
 for benefit of creditors, termination of 
 Two or more mortgages on property in adverse pos- 
 session have preference according to time of 
 
 record 225 105 
 
 Ulster county, Article VIII. does not apply to leases for 
 life or lives, or for years heretofore made (1 Oct., 
 
 1896) 240 109 
 
 Under-lessee not affected by surrender and removal of 
 
 original lease ...... 196 92 
 
 Undisposed profits belong to next eventual estate . 53 68 
 
 Undivided share or part, being trust estate, oourt may 
 
 order sale ....... 85 72 
 
 Unequal degree, lineal descendants of, take per stirpes 
 
 and not per capita ...... 283 121 
 
 United Kingdom of Great Britain and Ireland, ac- 
 knowledgments and proofs in . . . . 250 111 
 
 85 
 
 86 
 
 232 
 
 72 
 
 73 
 
 106 
 
 232 
 86 
 
 86 
 
 106 
 
 73 
 73 
 
 93 
 
 75 
 
 93 
 
 144 
 
 80 
 
 73 
 
 75 
 82 
 72 
 70 
 
 72 
 
 70 
 
 91 
 92 
 
 74 
 74 
 
 93 
 92 
 92 
 92 
 92 
 92 
 
 75 
 
 74 
 74 
 74 
 74 
 74 
 
 85 
 
 72 
 
 56 
 
 68 
 
 71 
 
 70 
 
 76 
 
 71 
 
 90 
 
 74 
 
92 
 
 74 
 
 280 
 
 121 
 
 205 
 
 95 
 
 274 
 
 118 
 
 Article III. 
 
 69 
 
 71 
 
 70 
 
 70 
 
 70 
 
 REAL PROPERTY LAW. 163 
 
 United States official, acknowledgments or proof before, 
 
 prior to 1 April, 1896, confirmed . . . 257 113 
 tdkvng acknowledgments or proof must affix seal . 257 113 
 Unlawful purpose, liability of landlord, premises occu- 
 pied for 201 93 
 
 Unrecorded conveyance void as to subsequent bona 
 
 fide purchaser ..... 241 109 
 
 Unsnitable person from any cause may be removed as 
 trustee ..... 
 
 Use of terms in Artiole IX. (Descent) 
 
 in Artiole VII. (Conveyances and Mortgages) 
 Using lone forms of covenants, penalty $5 
 Uses and Trusts ..... 
 
 abolished ...... 
 
 Uses, existing executed, are confirmed 
 
 Valid remainders, effect of determination of precedent 
 
 estate before contingency .... 48 67 
 
 Valuable consideration for conveyance of any estate 
 
 or interest makes grantee a " purchaser " . . 240 109 
 
 want of, not sole ground of adjudging conveyance or 
 
 charge fraudulent ...... 229 106 
 
 without notice, title of purchaser or encumbrancer not 
 
 affected or impaired by Artiole VII . . . 230 106 
 
 Value of advancement, acknowledged by child in 
 ■writing, or else estimated .... 
 
 Vested estate already created, is subject to § 56 
 
 future estate, when vested ..... 
 
 is included in term "estate" or "interest in real 
 property" ....... 
 
 not altered ....... 
 
 Vesting of future estate not prevented by power of 
 appointment ...... 
 
 Vests only on delivery of grant, estate or interest con- 
 veyed ........ 
 
 Violator of trust may be removed as trustee 
 Void as to creditors, purchasers or encumbrancers, void 
 as to their heirs, successors, personal representa- 
 tives or assigns, conveyance .... 
 
 Conveyance or assignment with intent to hinder, delay 
 or defraud creditors., ..... 
 
 with Intent to defraud purchasers or encumbranoers 
 executor, administrator, receiver, assignee, trustee, 
 or creditor for over $100, may treat any fraudu- 
 lent act as 232 106 
 
 unless written, contract to sell, or to lease for more 
 
 than 3 years 224 105 
 
 Want of valuable consideration not sole ground of 
 
 adjudging conveyance or charge fraudulent 
 Warranties, lineal and collateral, have been abolished 
 Warranty of title, covenant of .... 
 
 in mortgage ....... 
 
 Westchester County register, not county clerk, is re- 
 cording officer ...... 
 
 What estate passes by grant or devise 
 
 what trust interest may be alienated 
 ■When a trust power is imperative .... 
 
 when and how alien may aoquire and transfer real 
 property ....... 
 
 when authorised trust valid as a power 
 when certificate of acknowledgment or proof to state 
 time and place ...... 
 
 when collateral relatives to inherit .... 
 
 when contract to lease or sell void .... 
 
 when creditors may compel execution of trust power 
 
 when county clerk's authentication necessary 
 
 when devise operates as execution of power 
 
 when direction of grantor does not render power void . 
 
 of power need not be followed .... 
 
 when dower barred by jointure .... 
 
 by misconduct ....... 
 
 by preouniary provisions ..... 
 
 when estate for life of third person is freehold, when 
 chattel real ....... 
 
 for life or years is changed into f e» ... 
 
 in common, when in joint tenancy .... 
 
 of trustee ceases ....... 
 
 295 
 56 
 30 
 
 124 
 68 
 64 
 
 205 
 
 1 
 
 95 
 60 
 
 31 
 
 64 
 
 209 
 92 
 
 95 
 
 74 
 
 228 
 
 105 
 
 227 
 226 
 
 105 
 105 
 
 229 
 
 106 
 
 217 
 
 97 
 
 218 
 
 97 
 
 219 
 
 98 
 
 240 
 
 109 
 
 210 
 
 96 
 
 83 
 
 72 
 
 137 
 
 81 
 
 5 
 
 60 
 
 79 
 
 71 
 
 256 
 
 113 
 
 286 
 
 122 
 
 224 
 
 105 
 
 142 
 
 82 
 
 259 
 
 114 
 
 156 
 
 84 
 
 149 
 
 83 
 
 150 
 
 83 
 
 177 
 
 88 
 
 176 
 
 85 
 
 178 
 
 88 
 
 24 
 
 «S 
 
 129 
 
 SO 
 
 56 
 
 68 
 
 89 
 
 74 
 
164 
 
 ANALYTICAL INDEX. 
 
 when expectant estate* are deemed created 
 are defeated . . . . . 
 
 when father inherits ..... 
 
 when future estates are vested, when contingent 
 when grant takes effect .... 
 
 when grantee of power has absolute fee 
 when heirs of life tenant take as purchasers 
 when more man one beneficiary, distribution 
 when mother inherits ..... 
 
 when other authentication than county clerks, is neces- 
 sary ....... 
 
 when power is alien . ... 
 
 Is irrevocable ...... 
 
 of disposition absolute ..... 
 
 when provision in lieu of dower is forfeited 
 when remainder not limited on contingency defeating 
 precedent estate, takes effect .... 
 
 when remainderman may pay interest owed by life 
 tenant ........ 
 
 when remainders take effect if estate be for lives of 
 more than two persons .... 
 
 when rent is apportionable .... 
 
 when right to possession creates legal ownership 
 when tenant may surrender premises 
 when to Take Effect; Laws Repealed 
 when to take effect (1 Oct., 1896) 
 when trustee may convey property . 
 when trustee may lease trust property 
 when widow to elect between jointure and dower 
 when written conveyance necessary . 
 Who may hold real property .... 
 
 who may take by descent, devise or purchase 
 Whole sum shall become due, agreement or covenant 
 in mortgages and bonds .... 
 
 Widow barred of dower for misconduct as wife . 
 has dower ....... 
 
 in lands mortgaged before marriage exoept as against 
 mortgagee ....... 
 
 in lands mortgaged for purchase-money exoept as 
 against mortgagee ..... 
 
 in surplus of sale under purchase money mortgage 
 may bequeath crop in land held in dower . 
 must elect as to dower in exchanged lands 
 not entitled to both dower and jointure or precuniary 
 provision ......* 
 
 of alien entitled to dower, when 
 
 of mortgagee not endowed .... 
 
 to elect between devise and dower 
 when to elect between jointure and dower . 
 Widow's dower barred by jointure . 
 
 by pecuniary provisions .... 
 
 Widow's provision in lieu of dower forfeited when 
 Widow's quarantine ..... 
 
 Wife of alien, herself a citizen, may hold convey, etc 
 Wife's misconduct bars her dower as widow 
 Will, estates at, are chattel interests ; not liable as such 
 to sale on execution .... 
 
 Will is not a" conveyance " 
 
 limitation by. Article IX. (Desoent) does not affect 
 not included in the term " conveyance " 
 purporting to convey all real property of testator oper- 
 ates as execution of a power to devise 
 termination of tenancy at will by notice 
 Within the state, acknowledgments and proofs . 
 Without the state, recording conveyances acknowledged 
 or proved, when parties and certifying officer dead 
 Witness must subscribe at same time in order to prove 
 execution of conveyance ..... 
 
 or acknowledgment necessary to grant of fee or free- 
 hold before it can take effect against subsequent 
 purchaser or enoumbranoer .... 
 
 proof by subscribing ...... 
 
 to conveyance, compelling to testify 
 refusing or neglecting to testify forfeits $100 and may 
 be sent to prison without b»il by notary or other 
 officer . ... 
 
 SECTION. 
 
 PAGE. 
 
 54 
 
 68 
 
 47 
 
 66 
 
 284 
 
 122 
 
 30 
 
 64 
 
 209 
 
 95 
 
 131 
 
 80 
 
 44 
 
 66 
 
 138 
 
 82 
 
 285 
 
 122 
 
 260 
 
 114 
 
 127 
 
 80 
 
 128 
 
 80 
 
 133 
 
 81 
 
 182 
 
 89 
 
 45 
 
 233 
 
 35 
 192 
 
 72 
 
 197 
 
 Article X. 
 
 301 
 
 85 
 
 86 
 
 179 
 
 207 
 
 219 
 176 
 170 
 
 172 
 
 173 
 174 
 185 
 11 
 
 179 
 5 
 175 
 180 
 179 
 177 
 178 
 182 
 184 
 6 
 176 
 
 23 
 240 
 280 
 205 
 
 1K6 
 
 198 
 248 
 
 262 
 
 242 
 
 208 
 253 
 254 
 
 254 
 
 66 
 
 107 
 
 65 
 91 
 70 
 92 
 125 
 125 
 72 
 73 
 88 
 95 
 60 
 60 
 
 98 
 87 
 87 
 
 87 
 
 87 
 87 
 89 
 87 
 
 88 
 60 
 87 
 88 
 88 
 88 
 88 
 89 
 89 
 61 
 87 
 
 63 
 109 
 121 
 
 95 
 
 84 
 
 92 
 
 110 
 
 115 
 
 109 
 
 95 
 112 
 112 
 
 112 
 
REAL PROPERTY LAW. 165 
 
 SECTION. PAGB. 
 
 Witnesses dead, proof of conveyance . . . 263 115 
 
 Woman citizen, mauled to alien, may take, hold, con- 
 vey or devise ...... 6 61 
 
 Woman dying without lawful issue, inheritance descends 
 
 to her Illegitimate child 289 123 
 
 Women, acknowledgments and proofs within the state 
 
 by married same as unmarried .... 251 112 
 
 Words of Inheritance, or *• heirs," not neoessary to 
 create and oonvey estate in fee 
 
 Written conveyance, when neoessary 
 
 Written instrument is a '* conveyance " except will, 
 lease for not over 3 years, exeoutory contract, and 
 power of attorney to convey .... 
 
 Written notice of not less than 30 days to terminate 
 tenancy at will or by sufferance . . . 
 
 Years, estates for, are chattels real .... 
 tenant holding over at expiration after 30 days' notice 
 to quit liable to double rent and damages. So 
 equitable defence to this .... 200 93 
 
 Years, tenant for, oonveying greater estate than he 
 possesses does not work forfeiture, but passes all 
 he has 212 96 
 
 205 
 
 207 
 
 95 
 95 
 
 240 
 
 109 
 
 198 
 23 
 
 92 
 63