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 A manual upon the searchfng of records a 
 
 3 1924 018 815 765 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31 92401 881 5765 
 
A MANUAL 
 
 UPON THE 
 
 SEARCHmG OF RECORDS 
 
 AND THE PKEPAKATION OP 
 
 ABSTRACTS OF TITLE 
 
 REAL PROPERTY 
 
 ILLUSTRATED BY 
 
 REFERENCES TO THE STATUTES OF ALABAMA, COLORADO 
 GEORGIA, ILLINOIS, INDIANA, IOWA, KANSAS, KEN- 
 TUCKY, MICHIGAN, MINNESOTA, NEBRASKA 
 NEW YORK, OHIO, PENNSYLVANIA 
 TENNESSEE, AND WISCONSIN 
 
 By MA8KELL E. C^RWElSr 
 
 Revised, Enlarged, and Edited, with Foems and References 
 TO Decisions 
 
 By W. H. WHITTAKEE 
 
 CINCINNATI 
 ROBERT CLARKE & CO 
 
 1883 
 
(B ^5 w> 
 
 Entered according to Act of Congress, in the year 1865, 
 
 By ROBERT CLARKE & CO., 
 
 In the Clerk's office of the District Court of the United States for the 
 
 Southern District of Ohio. 
 
 Copyright, 1883, 
 By ROBERT CLARKE & CO. 
 
CONTENTS. 
 
 PAGE. 
 
 Introduction v 
 
 Chap. I. Op the Conrtact of the Sale of Lakd, Sees. 1-14, 1 
 II. Of the Ascertainment of the Quantity of Land, 
 
 Sees. 15-22 21 
 
 III. Of the Preliminary Inquimes as to Facts, Sees. 
 23-28 26 
 
 IV. Of the Search for Deeds and abstracting them, 
 Sees. 29-78 30 
 
 V. Of the Acknowledgment or Proof op Deeds, Sees. 
 
 79-98 79 
 
 VI. Of the Search for Liens and Abstracting them, 
 
 Sees. 99-116 109 
 
 VII. Op the Search for Judicial Records and Ab- 
 stracting them. Sees. 117-122 195 
 
 'VIII. Op the Search poe Wills and Abstracting them. 
 
 Sees. 123-140 209 
 
 IX. Leases, Sees. 141-148 242 
 
 (iii) 
 
PREFACE TO THE NEW EDITION. 
 
 Since the first edition of this work was pub- 
 lished, a number of changes have taken place in 
 the statutory laws of the various states which ren- 
 dered a revision necessary to make it of more prac- 
 tical value. The text of the author has not been 
 otherwise materially altered ; and, with the excep- 
 tion of references to later decisions indicated in the 
 foot-notes, and the addition of the laws of several 
 states, the original work of Mr. Curwen remains 
 the same. W. 
 
INTRODUCTORY. 
 
 In every contract for the sale of real property, it 
 is implied that the seller will, before the time fixed 
 for the completion of the contract, produce to the 
 buyer satisfactory evidence of his ability to make a 
 marketable title to the land sold. The purchaser, 
 therefore, is not bound to accept a deed, nor to pay 
 the purchase money, nor is he chargeable •with, in- 
 terest on the purchase money, until after this 
 reasonable requirement has been complied with. 
 The impatience of buyers, and their unwillingness 
 to trust to the investigations of the seller's coun- 
 sel, often induce them voluntarily to incur the 
 expense of making the necessary searches ; but 
 they are not bound to do so. The owner of land 
 contemplating a sale, seldom thinks it economical 
 to have the title examined and an abstract of title 
 made beforehand, and, in consequence, the com- 
 pletion of sales is frequently delayed, interest on 
 purchase money lost, and expensive litigation in- 
 curred by the parties to enforce or resist a specific 
 performance of the agreement.^ 
 
 ' 1 Chitty's Gen. Prac. 299; 1 Sugden V., pp. 24, 456 n., 510 n. 
 [In England, " the seller's solicitor prepares the abstract at 
 his expense, and the purchaser's solicitor examines the ab- 
 stract, with the deeds, at the purchaser's expense.'' 2 Sug- 
 den v., p. 2.] (vii) 
 
viii INTRODUCXOKT. 
 
 The law of real property admits of sucli a va- 
 riety and complication of interests in land, and 
 guards tlie transfer of tlieni with sucli strictness, 
 as to make an investigation of the title, on a pur- 
 chase, or mortgage, or lease, indispensable to tha 
 security of the purchaser, or mortgagee, or lessee. 
 The title is made up of a series of documents, re- 
 quired to be executed with tbe solemnities pre- 
 scribed by law, and of facts, not usually in the 
 United States evidenced by documents, which 
 show that the claimant is the person to whom the 
 law gives the estate, as the heir, or tenant in dower, 
 and the like. A methodical statement of the con- 
 tents of these documents, and fac^, and of the evi- 
 dence in support of them, constitute An Abstract 
 of Title. The purpose of this work is to state how 
 that abstract should be made, to notice the usual 
 questions of law and doctrines of equity that arise 
 in examining titles, and to refer briefly to the com- 
 mon sources of information for the fuller elucida- 
 tion of the law. To attempt to expound the law 
 of real property would not only he beyond our 
 limits, but would be inconsistent with the design 
 of making this a manual for actual practice. ' It is 
 desired to suggest, within limits which admit of 
 the book being put into the pocket, the points to 
 which the attention ofcounsel should be drawn, 
 in examining a title, and to refer to larger works 
 
INTRODUCTOEY. IX 
 
 for the learning necessary to enable counsel to give 
 ail opinion upon the title after the Abstract has 
 been completed. The author is not aware of any 
 American work upon this subject, and there is un- 
 fortunately no treatise which gives an historical 
 review of American legislation on the law of E.eal 
 Property. It is altogether beyond the scope of 
 this work to attempt it. The law of the several 
 states is therefoje stated as it now is, and not as it 
 has been ; and no attempt has been made, in stat- 
 ing propositions which involve the common learn- 
 ing of the profession, to do more than incidentally 
 refer to the usual books on these subjects. 
 
 The client almost always desires to know, when 
 applying to have a title examined, if he has made 
 a binding contract. The title depending as well 
 on facts external to records as upon the records 
 themselves, external inquiries may disclose such de- 
 fects as to make it unnecessary to search the rec- 
 ords. The price of land is so commonly fixed by 
 the estimated quantity, that clients frequently de- 
 sire to be assured of the correctness of the compu- 
 tation. These subjects have therefore been first 
 considered. 
 
 During the progress of the negotiation for the 
 purchase of lands, the intended buyer sometimes 
 ascertains that a prior contract of sale exists, which 
 is open and unrescinded. He can not, after this 
 
X INTRODTJCTORT. 
 
 discovery, honestly or safely purchase the lands. 
 The courts of equity treat- a valid contract of sale 
 of land as against the parties to the contract, and 
 all persons vs^ho claim under them with notice of 
 the contract, as a transfer of the equitable title to 
 the buyer, for whose benefit the second purchaser, 
 with notice, holds any title he may acquire. But 
 a purchaser who, before receiving notice of the 
 prior contract, has paid the purchase money, and 
 received a deed conveying to him the legal title, 
 is as innocent as the first purchaser, and has been 
 more diligent than he was in perfecting his title ; 
 and such second purchaser is therefore preferred 
 to the first purchaser. Notice of the existence of 
 a prior contract, though it is a mere verbal one, 
 and therefore apparently not legally binding (sec- 
 tion 4), takes away from the second buyer the 
 character of an innocent purchaser, without notice, 
 since even a verbal contract of sale may be en- 
 forced against the seller, if he admits its existence. 
 
CHAPTER I. 
 
 OF THE CONTEACT OF SALE OF LAND. 
 
 1. The contract must be in writing. — 2. Contracts made by 
 agents. — 3. Sales of land by auction. — 4. The written con- 
 tract excludes verbal evidence. — 5. The kind of title re- 
 quired. — 6. The effect of the contract. — 7. Putting the pur- 
 chaser into possession. — 8. Failure of title before convey- 
 ance. — 9. The equitable doctrine of part performance. — 
 10. The effect of fraudulent representations. — 1 1. Mistakes 
 in the written contract corrected — 12. Refusal of wife to 
 join in the deed. — 13. Effect of death of either party. — 14. 
 Proposed purchase by married woman. 
 
 Section 1. By the provisions of the statute for 
 the prevention of frauds and perjuries, enacted in 
 England in 1677, and re-enacted in nearly all of the 
 United States,^ no contract for the sale of land, or 
 any interest in, out of, or concerning land, can be 
 enforced, unless some note or memorandum thereof 
 be made in writing, and signed by the party to be 
 charged. The writing must contain within itself, 
 
 "^' [Ala. Code, sec. 2121; Col. Gen. Laws, 1877, p. 447, sec. 8; 
 G-a. Code, 1873, sec/ 1950; 111. Eev. Stat. 1877, p. 521, sec. 2; 
 Ind. Eev. Stat. j£81, see. 4904; la. Rev. Stat. 1880, sec. 3664; 
 Kans. Comp. L.T188I, p. 464, sec. 6; Ky. Gen. Stat. 1881, p. 
 248, sec. 1; Mioli. Comp. L. 1871, p. 1455, sec. 8; Minn. Stat., 
 1S78, p. 543, sec. 12; N. Y. Rev. Stat. 1882, vol. 3, p. 2326, sees. 
 8,9; Neb. Comp. Stat. p. 286, sec. 5; Ohio Rev. Stat. 1880, 
 sec. 4199; Pa. Brightly's Purd. 1873, p. 724, sec. 1; Tenn. 
 Stat. 1871, sec. 1758; Wis. Rev, Stat. 1878, sec .2304.] 
 
 1 [1] 
 
2 OF THIS CONTRACT OP SALE OP LAND. 
 
 without resort to any external evidence, the whole 
 agreement, including the names of the contracting 
 parties, the price to be paid, all the stipulations in- 
 tended to bind the parties, and such a description of 
 the land as will enable any one acquainted with it, 
 to learn, upon reading the contract, what property 
 was intended to be sold. Expressions descriptive 
 of the property, if intelligible to those who know 
 it, are sufficient; such as " my farm," "the house 
 in which I live," etc.; and evidence, external to the 
 writing, is admissible for the purpose of showing 
 what land answers that description. Reference may 
 also be had to any other writing, if the contract 
 plainly and unmistakably refers to it, for the pur- 
 pose of showing any of the terms of the agreement; 
 as, where reference is made to a prior deed for the 
 description of the land, or the contract of sale was 
 made by letter and answer. All writings, so con- 
 nected by their own internal evidence, constitute 
 one document in law; but no evidence, external to 
 the papers, is admissible to show a connection be- 
 tween papers not thus united : for example, the ad- 
 vertisement of a sale by auction can not be read to 
 show the terras of sale, unless the sale book refers' 
 to it as a part of the contract. The contract may 
 be written either in ink or pencil, but must be writ- 
 ten on paper, vellum, or parchment. If it is silent 
 as to the time of payment, or of the delivery of the 
 deed, it is implied that the payment and delivery 
 are to be contemporaneous acts, and are to be done 
 in a reasonable time, which is to be determined 
 upon a consideration of all the circumstances of the 
 
OF THE CONTRACT OF SALE OF LAND. '6 
 
 transaction. The writing must be signed by the 
 party to be charged ; and is valid, though not signed 
 by the party insisting on the performance of it. A 
 writing, in which the party to be charged has signed 
 his name in the third person, in the body of the in- 
 strument, instead of signing it at the bottom, or 
 which is signed by initials, the name appearing 
 elsewhere on the paper, is sufficiently " signed," if 
 it is manifest, on reading the paper, that it was in- 
 tended to be left ia that state, and thus treated as 
 a completed instrument.' 
 
 Sec. 2. Authority may be given to an agent to 
 enter into a contract for the purchase or sale of land 
 by any writing, or by word of mouth, except in 
 Pennsylvania, where the authority must be by writ- 
 ing; and may be revoked, at any time before a 
 binding contract has been signed by the agent, not- 
 withstanding any verbal agreement into which he 
 may have entered for a purchase or sale of the land.^ 
 If it distinctly appears upon the paper who the prin- 
 cipal is, and that it is his contract, the form in 
 which the agent signs the contract is not material ; 
 but, ordinarily, it is prudent to conform to the reg- 
 ular method, and exclude the agent's name from 
 
 iQreenleaf Ev., sees. 262-271 ; [1 Sugden on V. 214; Smith 
 on Contracts, 8th Am. ed., 84-89;] Boydell v. Drummond, 11 
 East. 142 ; Sivewright v. Archbald, 6 Eng. Law and Eq. R. 286. 
 
 ^[1 Sugden "V. 217; Story Agency, 9th ed., sees. 50, 465«; 
 Parrish v. Koons, 1 Pars. 79 ; Twitehell v. Philadelphia, 33 
 Penn. St. 212; but need not be under seal, Bauer v. Dubois, 
 43 Penn. St. 26,0.] 
 
4 01" THE CONTRACT OF SALE OS LAND. 
 
 the body of the instrument altogether, and sign it 
 in the name of the principal, " by A. B., his agent." ' 
 It is not sufficient to protect the agent from per- 
 sonal hability upon the contract, to state in the 
 writing that he is agent; he must also state the 
 name of his principal.^ I^o verbal evidence is ad- 
 missible to discharge from his liability, as principal, 
 a person who has signed a written contract, which 
 does not disclose the name of the real principal. 
 Hence, brokers and auctioners, who do not, in the 
 written contract of sale or purchase, disclose the 
 name of their principals as the contracting party, 
 are, though known to the other party to be brokers 
 or auctioneers, personally liable upon the contract.' 
 Where the contract has been signed by an agent, 
 acting for an undisclosed principal, the other party 
 will have a right to hold the real principal, and to 
 introduce verbal evidence to prove the agent's au- 
 thority to bind him* An agent will bind his prin- 
 cipal only so far as the principal has given him au- 
 thority, or has represented to the other party that 
 the agent has authority, to bind him. The mere 
 declarations of the agent as to the extent of his 
 authority, though made at the time that the con- 
 
 1 [Story on Agency, 146-148; 1 Sugden V. 82.] 
 
 2 Thompson v. Davenport, 9 Barn". & Cress. 78; [2 Smith's L. 
 C, 7th Am. eel, 362; Smith's Mer. Law, 3rd Am. ed., 177.] 
 
 'Franldin v. Lamond, 4 Man., Gran. & Scott, 637; Higgins 
 V. Senior, 8 Mee. & Wells. 834; Addison on Cont. 642; [Story 
 on Agency, sec. 267.] 
 
 *Truemanu. Loder, 11 Ad. & Ellis, 495; [2 Smith's L C 368 
 369.] 
 
OP THE CONTRACT OF SALE OP LAND. 5 
 
 tract is signed, are not evidence against his princi- 
 pal to prove the authority.' It devolves on the 
 party dealing with the agent to ascertain exactly 
 how far the agent's authority extends.^ If it is 
 contained in a writing, he must call for the writing, 
 and, at his own peril, construe its terms. Should 
 the agent be unable to produce it, at the time the 
 contract is signed, that fact will be evidence that 
 his authority has been revoked.' If, on the pro- 
 duction of the writing, it appears that the agent is 
 authorized not only to sell, but to convey, the pur- 
 chaser should, in Ohio, insist on the agent having 
 the power recorded, before the contract of sale is 
 signed. A principal who leaves in the hand of an 
 agent, after the revocation of his authority, a power 
 of attorney, will be bound to any honest person 
 subsequently dealing with the agent, on the faith 
 of the power, and without notice of its revocation.* 
 In Ohio, a wife who has joined with her husband 
 
 '[1 Greenleaf Ev., sec. 114; 2 Id., sec. 63n; Story on 
 Agency, sec. 136 and n.] 
 
 'Paley's Agency, by Dunlap, 202. ["This is the rule with 
 reference to a particulai' agent. But where the agency is not 
 held out by the principal, by any acts, or declarations, or im- 
 plications, to be general in regard to the particular act or busi- 
 ness, it must from necessity be construed according to its real 
 nature and extent; and the other party must act at his own 
 peril, and is bound to inquire into the nature and extent of 
 the authority actually conferred." Story Agency, sec. 133; 
 Smith Mer. Law, 173.] Fenn v. Harrison, 3 Term R. 757; 
 Skinners. Dayton, 5 Johnson's Cha. 30.T ; 2 Kent, 621. 
 
 '[Story Agency, sec. 72; 2 Greenleaf Ev., sec. 63.] 
 
 * Story Agency, sec. 470; [2 Greenleaf Ev., sec. 68a.] 
 
6 OF THE CONTRACT OF SALE OF LAND. 
 
 in executing a power of attorney, may, at any time 
 previous to the sale and conveyance of the land, 
 revoke the power, so far as relates to her interest 
 in the land, by an instrument recorded in the 
 county wherein the land lies. The revocation in 
 such cases isinopBrative until the instrument is re- 
 corded.^ "Where the authority given to the agent 
 was by word of mouth, he is a competent witness, 
 for either party, to prove the extent of the author- 
 ity.^ One of the most common cases in practice is 
 that of authority given by mere employment, with- 
 out any definite instructions. A man who employs 
 another having a particular vocation, to do an act 
 in the line of that vocation, does, by the very act 
 of employment, represent him to all who may hon- 
 estly deal with him, in ignorance of any private 
 instructions his principal may have given him, in 
 the line of that business, as having authority to do 
 what is usual, in the usual manner, in the transac- 
 tion of the principal's business. Private instruc- 
 tions given by the principal to his agent do not, in 
 such cases, limit the authority of the agent as 
 against those dealing with him, in the regular 
 course of business, without knowledge of the lim- 
 itations.^ A contract signed by one of the con- 
 tracting parties as agent for the opposite party, in 
 pursuance of a verbal authority, is not a compliance 
 with the statute of frauds.* 
 
 1 [R. S. 1880, sec. 4109.] 
 
 ^ 1 Grreenleaf Ev., sec. 416. 
 
 = Smith's Mer, Law, 170, 173 ; Story on Agency, sec. 73. 
 
 <■ [1 Sugden V. 219; Story on Agency, sec. 9.] 
 
OF THE CONTRACT OF SALE OF LAND. 7 
 
 Sec. 3. Sales by auction are within the statute 
 of frauds, and require a written contract, in the 
 same manner as private sales. The auctioneer's 
 clerk is, for the purpose of signing the contract on 
 the acceptance of a bid, the agent for both buyer 
 and seller.^ But the auctioneer has not, by virtue 
 of his employment, any authority to receive the 
 purchase money on a sale of land,^ nor to make any 
 stipulations, after the bid is accepted, with respect to 
 the title.^ Verbal declarations, made by an auction- 
 eer in the auction room, contrary to the printed con- 
 ditions of sale, are inadmissible in evidence, unless, 
 perhaps, the purchaser has particular personal in- 
 formation given to him of a mistake in the particu- 
 lars of sale.'' 
 
 Sec. 4. The necessity of a written contract, in 
 the case of a sale of land, is absolute. The im- 
 portance of having it carefully prepared, so that it 
 shall accurately state all the terms of the engage- 
 ment, and the nature and description of the prop- 
 erty, will be apparent from a consideration of some 
 of the rules of law applicable to the subject. The 
 written contract excludes all evidence of previous 
 
 '[1 Sugden V. 218; Smith's Mer. Law, 619.] 
 
 ^ [2 Pars. Cont. 615 ; but see Story on Agency, sec. 108n, 
 " Whether an auctioneer has authority to receive the whole 
 purchase money on a Sale of roal estate, or only the deposit, 
 may admit of some question." The weight of authority would 
 seem to be, that the auctioneer has no implied authority to 
 receive the purchase money in such cases.] 
 
 ' [Story on Agency, sec. 108.] 
 
 *£1 Sugdah V. 23; Story ou Agency, sec. 107.] 
 
8 OF THE CONTRACT OF SALE OF LAND. 
 
 negotiations and conversations upon the subject'; 
 all verbal evidence of any contemporaneous agree- 
 ment, which would alter the legal effect of the 
 writing; and all verbal evidence of a subsequent 
 waiver of any of the terms of the writing.' The 
 writing is the sole repository of the agreement, 
 The party seeking performance of it is bound, in 
 the courts of law, to show a literal performance, 
 or an offer and readiness to perform it, in all its 
 parts, by himself. ISTo allowance is made for any 
 departure from its terms, either in respect of the 
 time of performance, or for mistakes in the descrip- 
 tion of the premises, or for defects of quantity. If 
 he was not ready to perform what he engaged to 
 do, on the day named in the contract for perform- 
 ance, or if he was not able then to convey the full 
 title, and the very parcels described in the contract, 
 all his remedies at law are gone.^ His remedies in 
 equity will be considered in sec. 9. 
 
 Sec. 5. It is an implied condition in all sales 
 that the seller shall produce a fair marketable title, 
 to which no reasonable objection can be made.^ If 
 there was at anytime a separation of the legal and 
 equitable titles, the purchaser has a right to insist 
 on having both conveyed to him. 'So purchaser is 
 bound to accept a title depending upon a doubtful 
 question of law — or upon facts, the evidence of 
 which it is impracticable for him, at the time the 
 
 11 Greenleaf Ev., sec. 275. 
 
 2 Adam's Equity, 85; [1 Sugden V. 397.] 
 
 » Adam's Equity, 84; [1 Sugden V. 24, 456n, 51ii 577?i.] 
 
OF THE CONTRACT OP SALE OF LAND. V 
 
 deed is tendered, to investigate with satisfactory 
 results. Tlius, if the title depends on the validity 
 of a marriage — or upon a condition, and is liable to 
 be forfeited by a breach of it — the seller can not, in 
 the absence of satisfactory evidence of the marriage, 
 or of the performance of the condition, insist on the 
 buyer taking the title.^ If there are incumbrances 
 on the property, not disclosed at the time of the 
 sale, the buyer may require them to be paid oif, 
 before he takes his deed. ISTo one is bound to ac- 
 cept or give an indemnity for a defective or incum- 
 bered title.^ No purchaser should accept a convey- 
 ance until the incumbrance is removed ; for, if he 
 does, he will have no remedy whatever, except by 
 a suit upon the covenants in his deed, after the in- 
 cumbrance has been enforced against him.^ Im- 
 perfect deeds must be corrected, and unrecorded 
 deeds recorded, at the expense of the seller. 
 
 Sec. 6. As the legal title to land can not be 
 transferred, except by deed, the seller, notwith- 
 standing the contract of sale, if it is silent upon 
 the subject, is entitled to retain the possession of 
 the land, and to exercise the other rights of the le- 
 gal owner, until the delivery of the deed. But the 
 courts of equity, considering that a valid contract 
 obliges the seller to convey the land to the buyer, 
 and that that which ought to be done should, in 
 
 '[ISugden V. 577.] 
 ' Bisp. Pr. Bq., sees. 378, 379. 
 
 ' Woodford w. Leavenworth, 14 Ind. 314; [1 Sugden V. 10, 
 521«.] 
 
10 OF THE CONTEACT OB SALE OF LAND. 
 
 justice, be considered as already done, whatever 
 formal proof of the transaction may be yet lack- 
 ing, treat the buyer, from the moment the contract 
 is signed, as the owner, and the seller, though they 
 do not disturb his legal possession, as trustee for 
 the buyer, and therefore bound to use his posses- 
 sion for the benefit of the buyer. The conse- 
 quences of thus treating the contract as a convey- 
 ance of tlie equitable title, are to give all the benefit 
 of any increase in the value of the land to the 
 buyer, and to put upon him all the risks of any 
 decrease or loss, whether caused by natural decay 
 or by inevitable accident, or by wrongful violence; 
 and to entitle the seller, if, in the event, it is proved 
 that he had a title, notwithstanding the subsequent 
 destruction of the property, to be paid the full 
 amount of the purchase money ; and to entitle the 
 buyer to apply to equity for relief, if the seller at- 
 tempts to do any act, in relation to the premises, 
 inconsistent with the terms of the contract, or the 
 buyer's right as equitable owner.' 
 
 Sec. 7. If the buj'er is put into possession by 
 the seller, the presumption of law is, that he takes 
 possession as owner, in performance of the con- 
 tract, and he will therefore be entitled, even in. the 
 absence of any written contract of sale, to compel 
 the seller to convey the land to him, in all cases 
 where he has purchased for value and the contract 
 is fair and just in all its parts, and the conduct of 
 
 1 1 Sugden V. 270; 1 Story's Eq. Juris., sec. 64^ [sec. 789]; 
 Adam's Equity, 140; [Bisp. Pr. Eq., sec. 304]. 
 
OF THE CONTRACT OP SALE OF LAND. 11 
 
 the buyer has not been improper. In Ohio, no 
 lapse of time will bar the right of the buyer, who 
 has been put into possession, from his claim to have 
 a legal conveyance from the seller.^ If the buyer 
 is aware of objections to the title, he should not 
 take possession, since his doing so will be evidence 
 of his waiver of all known objections. If a nui- 
 sance exists upon the premises at the time of the 
 sale, and is suffered to remain after he takes pos- 
 session, he will be personally liable for its continu- 
 ance.^ 
 
 Sec. 8. If, upon an investigation of the title, it 
 i^ discovered, before a deed is made, that the seller 
 does not possess a title to the extent required by 
 the contract, he is not liable in damages for the de- 
 fect; but the buyer is at liberty to take the land 
 with the defect, abating a proportionate part of the 
 price; or, if the defect is material, to decline going 
 on with the bargain. If the buyer was let into pos- 
 session, and the title fails before conveyance, he is 
 not liable to pay rent in respect of such occupation, 
 while the contract remained unrescinded.' 
 
 Sec. 9. In section 4 it was stated that the neces- 
 sity of a written contract, in the case of a sale of land, 
 was absolute, and that no damages could be recov- 
 
 i[Ohio R. S. 1880, sec. 4974 ■; Ky. Gen. Stat. 1881, p. 636.] 
 =^[1 Sugden V. 84;] King v. Pedley, 1 Ad. & Ellis, 822; 
 
 Rich V. Basterfield, 4 Man. Gran. & Scott, 783. 
 '1 Story Eq. Juris., sees. 778, 779; [2 Id., sees. 796-799;] 
 
 Adams' Equity, 89 ; [1 Sugden V. 275 ; 1 Wash. Real Prop. 591, 
 
 592.] 
 
12 OF THE CONTRACT OF SALE OF LAND. 
 
 ered at law, upon the breach of the contract, unless 
 the i^laintifl' could show that, on the day named, 
 he was ready and ofi'ered to perform the contract, 
 in strict accordance with its terms. The courts of 
 equity have, however, intervened in cases where 
 there is such a part .performance of a verbal con- 
 tract for the sale of land as would make it a fraud, 
 as distinguished from a mere disappointment, on 
 the buyer, for the seller to refuse to convey; and 
 have compelled the latter specifically to complete 
 the transaction. To sustain a bill for specific per- 
 formance of a verbal contract of sale of land, it is 
 not enough to show a breach of contract, and the 
 disappointment of just expectations by the other 
 party's refusal to keep his engagement. The pay- 
 ment of purchase money, the incurring of expenses 
 for surveys, or the examination of title, are, there- 
 fore, no part performance. But, to put the buyer 
 into possession solely in consequence of the con- 
 tract, or to allow him to make repairs, on the same 
 footing, and then to repudiate the contract, would 
 be a fraud ; for the suppression of the contract, 
 which was the only authority to enter into posses- 
 sion or to make repairs, would leave the buyer lia- 
 ble to an action at law for trespass. If the buyer 
 were, therefore, in possession under a prior contract, 
 his possession, not being referable to the verbal 
 contract of sale, would be no act of part perform- 
 ance.^ Intimately connected with the doctrine of 
 
 ['Story's Eq. Juris., sees. 759-763; Bisp. Pr. Eq., sees. 384- 
 385; 1 Sugden V. 225-233.] 
 
OF THE CONTRACT OF SALE OF LAND. 13 
 
 part performance, is the practice of the courts of 
 equity to enforce a specific execution of an agree- 
 ment, whether written, or resting on verbal evi- 
 dence and fortified by part performance. Either 
 party may invoke the aid of the court, and it is no 
 objection to the exercise of the jurisdiction that the 
 complainant has not signed the contract of sale, if 
 the party to be charged has signed it ; nor that the 
 contract is verbal only, if there has been a part 
 performance, in the sense above suggested. Where 
 the contract is fair, is for value, is made by persons 
 competent on both sides to bind themselves, gives 
 rights which the parties may mutually enforce 
 against each other, and its enforcement in terms is 
 practicable and necessary for the purposes of com- 
 plete justice, a court of equity will, ordinarily, in its 
 sound discretion, at the suit of either buyer or 
 seller, decree a specific execution of the agreement, 
 by requiring the buyer to pay the price, and the 
 seller to execute a deed. If a suit is brought within 
 a reasonable time, it is no objection that the com- 
 plainant was not ready on the day fixed for per- 
 formance , nor that in the contract there is a mis- 
 take in describing the quantity or quality of the 
 land; nor that at the time of the signing of the 
 contract the complainant had no title ; nor that he 
 can not now make a title to a portion of the parcels 
 sold : if the delay in offering to perform was not 
 unreasonable ; if the error in description is so im- 
 material as not to mislead the buyer ; if a title can 
 be made before the final decree in the present suit; 
 and if the failure, of title to a portion of the prem- 
 
14 OF THE CONTRACT OF SALE OF LAND. 
 
 ises does not disappoint the buyer with respect to 
 the intended use of the premises, and unreasonably 
 impair the value of the property as a whole. In 
 case substantial justice will be done by carrying 
 out the contract, and an abatement in the price 
 will be a full compensation for the defect, the buyer 
 ■ will be required to take the property, and be al- 
 lowed a deduction from the purchase money. 
 
 Sec. 10. A misrepresentation of a matter of 
 fact, false within the knowledge of the party making 
 it, reasonably relied on by the other party, and con- 
 stituting a material inducement to his contract, is 
 a fraud, which entitles the person upon Avhom it is 
 practiced to repudiate the contract. But the law 
 never assumes that the buyer relies on the opinion, 
 or random commendations of the seller; and there- 
 fore no misrepresentation by the seller as to his 
 opinion, or the opinion of others, concerning the 
 value of the property, or the chances of its increas- 
 ing in value, or of its being resold at advantage, 
 though known to be false, amounts in law to a fraud.* 
 A false statement of the actual amount of rent re- 
 ceived is fraudulent; for it is an assertion of a 
 matter of fact, by the owner, who has the best 
 means of knowledge, and may, therefore, reasona- 
 bly be relied on.^ Mere non-disclosure of advan- 
 tages or disadvantages is generally not equivalent 
 to fraud, unless the party has undertaken, ex- 
 
 ' [1 Story's Eq. Juris., sees. 191-203 ; Bisp. Pr. Eq., sees. 213- 
 210; i Sugden V. 370-372.] 
 
 2 [1 Sugden V. 5 ; Pollock's Cont. 473.] 
 
OF THE CONTRACT OP SALE OF LAND. 15 
 
 pressly, to make a full disclosure, or it is implied 
 that he shall, from the nature of the contract. The 
 contract of the man, mentioned in scripture, who, 
 having found treasure hid in a field, hid it and 
 bought the field, was not, by our law, fraudulent. 
 In the case of sales by auction, the owner may law- 
 fully reserve a bid to prevent the sacrifice of the 
 property, without notifying the bidders of it, ex- 
 cept in cases where the sale is advertised to be 
 " without reserve," or to be " positive," or, in other 
 words, which imply that the highest bidder shall 
 have the property. To buy the property in, after 
 such an announcement, is, in law, a fraud on the 
 real bidder ; as is also the employment, in any case, 
 of puffers, to screw up the price by taking advan- 
 tage of the eagerness of buyers. An agreement 
 among bidders, at an auction, not to bid against 
 each other, but to share the advantages of a pur- 
 chase made by one of them, is a fraud on the seller. 
 An auctioneer, or other agent, or officer, conduct- 
 ing a sale, can not buy the property, either for him- 
 self or as agent for another person.^ 
 
 Sec. 11. If, in reducing the contract of sale to 
 writing, there has been some undesigned insertion 
 or omission which makes it inconsistent with the 
 terras by which both parties meant to abide, a court 
 of equity, when the mistake is admitted or proved, 
 will reform the writing so as to make it express the 
 
 'Adams' Equity, 176; 1 .Story's Eq. Juris., sees. 147, 191- 
 212,293; Addison on Contracts, 134; ISugden V. 14; 2 Id. 409; 
 [Bisp. Pr. Eq., sees. 209-213; Story on Agency, sec. 107, n.J 
 
16 OF THE CONTRACT OF SALE OP LAND. 
 
 real engagement. Verbal evidence to prove tlie 
 mistake, is admissible. Tbe court will, in like man- 
 ner, reform the writing, if, by the fraud of either, 
 a stipulation which the parties agreed should be in- 
 serted is omitted, or a clause which was not agreed 
 upon, is inserted. If the parties agree as to th6 
 form of the contract, and it is deliberately drawn in 
 that form, no misapprehension, under which either 
 party may be, as to the legal effect of the contract 
 when so drawn, will, necessarily, be a ground for 
 rescinding or reforming the instrument. Where 
 the parties have not, in fact, agreed to tbe same 
 thing — as, where the seller supposes he is selling 
 the machinery in his mill, and the buyer supposes 
 he is buying the land on which the mill stands, 
 the mere existence of a written contract between 
 them, will not, after satisfactory proof of the mis- 
 take, prevent the court from setting the transac- 
 tion aside, as having been carried on under a mis- 
 take of fact.' 
 
 Sec. 12. The refusal of the wife to join in a 
 conveyance of the husband's lands, after he has 
 sold them, sometimes occasions serious inconven- 
 iences, and the purchaser is left to his choice of 
 submitting to them or of giving up the contract. 
 The claim of the wife, in such cases, is altogether a 
 contingent one: she has a present right of dower 
 in the land sold, which, if she survives her husband, 
 may become an estate for life, incumbering, to the 
 
 'Adam's Equity, 168; 1 Story Eq. Juris., sees. 142, 155; [1 
 Sugden V. 262; Bisp. Pr. Eq., sec. 190.] 
 
OF THE CONTRACT OF SALE OF LAND. 17 
 
 ■ extent of a third of tlie value, the hinds sokh If 
 she dies first, the land is thereby disiucumb'ered. 
 The compensation which the purchaser has a right 
 to insist upon, for this risk, in case he elects to take 
 the estate, is to retain in his own hands one-third of 
 the purchase money, paying to the seller the annual 
 interest-upon it from year to year, until the death 
 of the husband or wife. If the husband dies first, 
 he has the fund out of which to pay the widow her 
 dower, the value of which, in such cases, is, at com- 
 mon law, a third of the annual value of the land 
 at the date of the sale, and not at the date of the 
 husband's death. Should the wife die first, the hus- 
 band's consolation will be the balance of the purchase 
 money retained to cover a risk which her death 
 terminated, and now paid over to him. The plan 
 suggested is very seldom resorted to in practice ; 
 and in those states, as in Ohio, where the widow is 
 entitled to be endowed of the land according to its 
 value at the time of the assignment, the retention 
 of a third of the purchase money is obviously no 
 sufiicient indemnity.' Tbe old English rule of 
 sending the husband to jail until his wife consented 
 to join in the deed, is very generally disapproved 
 in the United States. In the event of a married 
 woman refusing to convey lands held by her for 
 her separate use, which she has sold in the exercise 
 of that right of absolute disposal — which the doc- 
 
 1 [1 Wash. B. Prop. 240, 241 ; Williams R. Prop. 233rt ; Dun- 
 seth V. The Bank of the United States, 6 Ohio, 77.] 
 2 
 
18 OF THE CONTRACT OF SALE OF LAND. 
 
 trine of equity that, as to her separate estate, she 
 retains the right of an unmarried woman in spite 
 of her marriage, confers upon her — it is conceived 
 that the ordinary rule, as to specific performance, 
 applies; and that, therefore, she may be compelled 
 to convey in execution of her contract, precisely 
 as an unmarried woman, having made a valid con- 
 tract for the sale of her lands, would, in equity, be 
 required to convey.^ "With respect to the sale of 
 the wife's lands, not settled to her separate use, the 
 statutes of nearly all the states assume, in requir- 
 ing the otEcer taking her acknowledgment to ex- 
 amine her, whether she is then satisfied with the 
 conveyance, or wishes to retract, that no contract 
 of sale made by her can be enforced by judicial 
 sanctions.^ 
 
 Sec. 13. The death of either buyer or seller 
 works no change in the rights of the survivor. He 
 has the same right to a specific execution of the 
 agreement against the representatives of the de- 
 ceased as he had against the deceased himself. An 
 impediment, arising from those representatives be- 
 ing minors, or otherwise incapacitated to bind their 
 own interests, may, however, necessitate an appli- 
 cation to a court, by whom their rights may be 
 bound. The practice of the courts of equity not 
 
 1 [ Pollock's Cont. 68, 69n ; 1 Sugden V. 311 ; Bisp. Pr. Eq. 
 sees. 101, 102.] 
 
 ' [In many of the states, no separate examination of the 
 wife is now required.] 
 
OF THE CONTRACT OF SALE OP LAND. 19 
 
 to grant a decree against minors, without, at the 
 same time, reserving to them a day after coming 
 of age, to show error in the decree, has led, in the 
 states of Ohio, Pennsylvania, Illinois, Iowa, and 
 Kansas, to statutes authorizing the courts con- 
 clusively to hind the represeutatives of the deceased 
 by a final decree.^ 
 
 Sec. 14. The proposal of a married woman to 
 purchase lands, either with her own funds, they not 
 being settled to her separate use, or with funds to 
 be furnished to her by her husband or friends, is to 
 be cautiously acted upon. She has, by law, an ab- 
 solute right, at any time during the marriage, and 
 within a reasonable time thereafter, to annul an}'- 
 transaction, not respecting an estate settled to her 
 separate use, entered into during her marriage, 
 whether done with or against the consent of her 
 husband. He, also, on learning of the transaction, 
 may, within a reasonable time, repudiate it. Her 
 right to set aside the sale and reclaim the purchase 
 money is not affected, either by her having ac- 
 cepted a deed and taken possession, or by any 
 
 i[Ala. Code, 1876, sees, 2224-2227; 111. Eev. Stat. 1880, 303, 
 304; la. Rev, Stat. 1880, COl, 662, sees. 2487, 2488; Kans. 
 Comp. L. 1881, ell. 37, sec. 140; Mich. Comp. L. 1871, 1419- 
 1422; Minn. Eev. Stat. 1878, 611; Neb. Comp. Stat. 1881,250, 
 251; Ohio Rev. Slat. 1880, sees. 5797-5802; Pa. Brightly's 
 Purd. 1873, 276, 277; Tenn. Stat. 1871, sees. 2025-2029; Wis. 
 Eev, Stat. 1878, sees. 3907-3912.] 
 
20 OF THE COKTRACT OF SALE OF LAND. 
 
 lapse of time, if she comes forward within a rea- 
 sonable time after her husband's death.' 
 
 ' Smith on Real and Tersonal Property, 880 ; [2 Kent Com. 
 :.50, 168; 2 Blk. Com. 292; Co. Lilt. 3a; Kelly's Cont. Mar- 
 ried Women, 703. " But where, as in this country, a wife, by 
 joining with ber husband in a deed, may part with her lands 
 and pass a good title, the joint act of the two, being in all re- 
 spects as available as if done by her while sole, it would seem 
 that their joint assent in accepting a title should be as valid 
 as in granting one." 1 Wash. E. P. 334.] 
 
ASCERTAINMENT OF QUANTITY OF LAND. 21 
 
 CHAPTER 11. 
 
 OF THE ASCERTAINMENT OF THE QUANTITY OF LAND. 
 
 15. Plotting the survey; instruments needed. — 16. The sur- 
 veyor's chain. — 17. The contents of rectangles. — 18. The 
 contents of triangles. — 19. The contents of trapezoids. — 20. 
 The contents of polygons. — 21. The contents of irregular 
 figures. — 22. The effect of the words " more or less." 
 
 Section 15. Some knowledge of surveying and 
 plotting, and of the more common rules for ascer- 
 taining the quantity of land, will be a guard 
 against any gross mistake that may occur in the 
 description of the premises, or in the alleged con- 
 tents of the land. The only instruments needed 
 are a semi-circular protractor, a pair of dividers, 
 and a scale of equal parts. A scale divided into 
 the fiftieth parts of an inch is very convenient, on 
 account of the accuracy with which, by means of 
 it, links, being the hundredth parts of a chain, can 
 be measured. The more common problems for su- 
 perficial measurement of land, not requiring the 
 aid of tables of sines and logarithms, are easily 
 solved, and the omission of unknown sides or an- 
 gles supplied by plotting the survey on a scale of 
 equal parts. Some of these problems will now be 
 stated. For the more difficult ones, which are 
 sometimes involved in cases of partition and the 
 adjustment of boundaries, reference may be had to 
 
22 ASCERTAINMENT OF QUANTITY OF LAND. 
 
 Baker on Surveying (Weale's Series), Davies' Ele- 
 ments of Geometry and Trigonometry, Davies' 
 Elements of Surveying, Robinson's Surveying, 
 Gillespie's Surveying, or any approved wovh ou 
 the subject. 
 
 Sec. 16. The surveyor's chain was intentionally 
 so constructed as to make 100,000 square links to 
 an acre. It is 66 feet long, divided into one hun- 
 dred links, each of M'hich is, therefore, 7.92 inches 
 long: 625 square links make a square pole; 16 
 square poles make a square chain, and 10 square 
 chains make an acre. If the dimensions are ex- 
 pressed in feet, as is the case, usually, in sur- 
 veys of town lots, an acre contains 43,560 square 
 feet. It rarely happens, under the United States 
 land system, that the boundaries vary much from 
 straight lines. 
 
 Sec. 17. "Where the land is bounded by four 
 straight lines, and has its opposite sides parallel, 
 the area is ascertained by multiplying the base by 
 the altitude. Thus, a rectangular field, 14 chains 
 27 links long, and 9 chains 75 links wide, contains 
 1,391,325 square links; and, as 100,000 square links 
 make an acre, 1,391,325 square links make 13.91325 
 acres. If the decimals .91325 are multiplied by 4, 
 and the five right-hand figures pointed ofi", as deci- 
 mals, the result will express the number of roods 
 and decimal parts of a rood; and if these decimals 
 are multiplied by 40, and the five right-hand figures 
 pointed oflf as before, the result will be perches and 
 
ASCERTAINMENT OP QUANTITY OF LAND. 23 
 
 decimals of a perch. The field would, therefore, 
 contain 13 acres, 3 roods, 26 perches ; or, to express 
 it decimally, 13.91325 acres. 
 
 Sec. 18. If the land is in the shape of a triangle, 
 the contents are ascertained by multiplying the 
 base and perpendicular together, and dividing the 
 product by 2. "Where the length of the three sides 
 is known, add the three sides together, and takp 
 half the sum ; from this half sum subtract each 
 side separately; multiply the half sum and the 
 three remainders continually together : the square 
 root of tbe product will be the area. Thus, a tri- 
 angle whose sides are 342, 384, and 436 feet, con- 
 tains 62980.14 square feet. 
 
 Sec. 19. Where only two sides of the tract are 
 parallel, the area is ascertained by adding the two 
 parallel sides together, and multiplying half that 
 sum by the distance between the parallel sides. 
 Thus, a field bounded by two parallel lines, respect- 
 ively 30 and 49 chains long, and distant from each 
 other 16.60 chains, contains 65.57 acres. 
 
 Sec. 20. If none of the sides of the field are 
 parallel to each other, or if the field has more than 
 four sides of difi"erent dimensions, the contents are 
 computed by dividing the figure into as many tri- 
 angles and trapeziums as may be convenient, and 
 ascertaining the contents of the sum of the trian- 
 gles, according to the rule stated in section 16. If 
 the land is bounded by four straight lines, no two 
 of which are parallel to each other, and the length 
 
24 ASCERTAINMENT OF QUANTITY OF LAND. 
 
 of each side is given, and the two opposite angles 
 are supplements of each other, the area may be 
 found by adding all the four sides together and 
 taking half the sum ; subtract each side separately 
 from the half sum; multiplj'^ the four remainders 
 continually together, and extract the square root 
 of the last product, which will be the contents. 
 
 Sec. 21. In cases where one of the boundaries 
 is a stream, or a public road, it often happens that 
 one side is too irregular in outline to admit of 
 measurement by dividing the field into triangles 
 and trapeziums. Resort is, therefore, had to the 
 plan of drawing a base line as near as practicable 
 to the boundary, and measuring from it, in several 
 places, at equal distances, to the boundary line. 
 To half the sum of the first and last breadths, add 
 the sum of all the intermediate breadths, and mul- 
 tiply the result by the common distance between 
 the breadths, to find the area. If the breadths 
 were taken at unequal distances, the contents may 
 be determined, with tolerable accuracy, by adding 
 all the breadths together, dividing the "Sum by the 
 whole number of them for the mean breadth, and 
 multiplying that by the length of the base line. 
 
 Sec. 22. It seems hardly necessary to add, that 
 the expression, "more or less," following the state- 
 ment of the contents of land in a contract or deed, 
 where the price has been fixed with reference to the 
 number of acres, covers only such immaterial errors 
 as usually arise from the defects of instruments, the 
 
ASCERTAINMENT OF QUANTITY OP LAND. 25 
 
 irregularities of the ground, the diiJiculty of ascer- 
 taining the exact variation of the magnetic needle, 
 and the want of high professional skill in the sur- 
 veyor. A gross mistake as to the quantity may be 
 corrected, notwithstanding the words " more or 
 less" are in the contract, as well as other mistakes 
 of fact.' 
 
 ' Portmai) v. Mill, 2 Russell, 570 ; [1 Sugden V. 489-492, notes. 
 The difference must be such as to raise the presumption of 
 fraud.] 
 3 
 
26 PRELIMINARY INQUIEIES AS TO FACTS. 
 
 CHAPTER III. 
 
 OF THE PRELIMINARY INQUIRIES AS TO FACTS. 
 
 23. If the seller has been disseized. — 24. If another person 
 is in possession. — 25. If an unrecorded deed exists. — 26. If 
 an unrecorded charge exists, — 27. If a forfeiture has been 
 incurred. — 28. If a condition has been dispensed with. 
 
 Section 23. It lias been already stated, that title 
 depends, not only on documetits and records, but 
 also upon facts external to records. Inquiry into 
 such facts may satisfy the purchaser that no title 
 can be made by the seller, and the expense of a 
 further search be thereby avoided. In those states 
 where the English statute against the granting of 
 pretended titles has been adopted or re-enacted, 
 the first inquiry is, whether the seller, or he under 
 whom he claims, has been turned out, and is kept 
 out, of possession by an adverse claimant. Where 
 those statutes exist, as in the states of Kentucky 
 and Indiana, all conveyances made by a person 
 thus out of possession are invalid.^ ^o statute of 
 
 ^ [Ky. Gen. Stat. 1881, pp. 180,255; Ind., by common law, File 
 V. Doe, 1 Blaokf. 127; Germania Ins. Co. v. Grim, 32 Ind. 257; 
 also, N. Y. R. S., Vol. 3, p. 2190, sec. 147; but it will not void 
 a grant in Col. Gen. L. 1877, p. 134, sec. 5; Ga. Code, 1873, 
 sec. 2695 ; 111. R. S. 1880, p. 307, sec. 4 ; la. Stat. 1880, sec. 
 1932; Kans. Comp. X. 1881, p. 211, sec. 6; Mich. Comp. h. 
 1871, sec. 4209; Minn. Stat. 1878, p. 535, sec. G; 'Seh. Comp. 
 
PKELIMINAEY INQUIRIES AS TO FACTS. 27 
 
 the kind is in force in Ohio ; but the fraudulent 
 sale of land, to which the seller has no title, is 
 punishable, in that state, by indictment.^ 
 
 Sec. 24. Open, visible, notorious possession .of 
 land operates as notice of the occupant's rights to 
 all purchasers, who will therefore take the- prem- 
 ises, whether they have actual knowledge of the 
 possession or not, subject to the occupant's right, 
 whatever it may be. Attempts have been made to 
 throw doubts upon the applicability of this rule, 
 where the occupant's title depends on a recordable 
 instrument which has not been recorded ; but no 
 cautious purchaser will omit to inquire as to the 
 actual claims of any person whom he finds in pos- 
 session of the land.^ 
 
 Sec. 25. During the mtei'val allowed bylaw be- 
 tween the execution and recording of a deed, it 
 may be impracticable to ascertain whether a prior 
 conveyance, which if recorded in due time will 
 have the priority of right, has been already made 
 and delivered. The character of the seller is, in 
 most cases, the only security of the buyer. A pur- 
 chase for cash, from a seller in failing circum- 
 stances, may, therefore, turn out to be a total loss. 
 The periods allowed by law, in the several states, 
 for recording deeds, are stated in the cbapter upon 
 deeds. 
 
 Stat. 1881, p. 391, sec. 31 ; Ohio, Hall v. Ashby, 9 Ohio, 96; 
 Pa., Cresson v. Miller, 2 Watts, 272 ; Wis. R. S. 1878, sec. 2205.] 
 
 ' [R. S. 18S0, SCO. 7091.] 
 
 ^Adams' Equity, 153, note; 4 Penn. St. E. 173. 
 
28 PEBLIMINAET INQUIEIES AS TO PACTS. 
 
 Sec. 26. The existence of unrecorded cliarges, 
 though they involve the incautious purchaser in 
 unexpected hazards, maybe ascertained by inquiry. 
 Of this character, are the liens of mechanics and 
 mateiial men, which take effect from the time the 
 labor is completed or the materials are furnished; 
 the lien of contractors, under city ordinances, for 
 paving, or lighting, the adjacent streets; the lien, 
 created, in Kentucky, by the arrest of a felon, on 
 his estate, in favor of the victim of his crime; the 
 lien of the United States, under the internal rev- 
 enue act, to secure the payment of taxes ; and the 
 like. The nature of these charges will be consid- 
 ered hereafter. It is sufiicient for the present pur- 
 pose to call attention to the necessity of making 
 inquiries in regard to them. Some are, in strict- 
 ness, matters of record, as city ordinances and 
 taxes; but the existence of the charge depends 
 also on matters of fact. 
 
 Sec. 27. Estates liable to forfeiture for breach 
 of condition subsequent, can seldom be forced upon 
 unwilling purchasers, since there must always be 
 some uncertainty whether the title has not already 
 been- divested. Permanent leaseholds, renewable 
 forever, are, in Ohio, almost universally clogged 
 with such conditions. The purchaser may inquire, 
 but can not be absolutely safe, unless the person 
 entitled to enforce the forfeiture, should one have 
 been incurred, will confirm his title by uniting with 
 the seller in the deed, or by executing a separate 
 instrument. A verbal assurance made to the buyer, 
 
PRELIMINARY INQUIRIES AS TO FACTS. 29 
 
 in answer to inquiries addressed to the landlord, 
 or paramount owner, would, indeed, operate as an 
 estoppel, precluding him from enforcing a forfeit- 
 ure ; hut, from the difficulty of preserving the proof 
 of such assurance, it would he of little value as a 
 muniment of title. 
 
 Sec. 28. Where the purchaser is buying the re- 
 version of an estate, and wishes to secure the con- 
 tinued existence of conditions imposed on the ten- 
 ant, or holder of the base fee, his attention must 
 be called to the question, whether, by the terms of 
 the deed containing the condition, a A'^erbal or mere 
 written dispensation with its performance, without 
 a deed, will be valid; and, if so, whether, in fact, 
 any such dispensation was ever granted. It seems 
 so contrary to natural reason that a single instance 
 of a-dispensation with the performance of a condi- 
 tion should put an end to the condition forever, 
 that it is necessary to assure the unprofessional 
 reader that such is the settled law.' 
 
 ' [Dumpor's case,'l Smith's Leading Cases, 7th Am. ed., 93- 
 136.] 
 
30 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 CHAPTER IV. 
 
 OF THE SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 29. How far back the search must extend. — 30. The United 
 States the source of title ; Indian titles. — 31. The land sy_s- 
 tem of the United States. — 32. Land descends and is trans- 
 ferred only according to the law of its situs. — 33. Rule 
 modified by statutes. — 34. Compulsory transfers by decree in 
 equity. — 35. The searcher's preliminary sketch of title. — 
 36. The heading of the abstract. — 37. The patent from the 
 government — 38. Equitable title behind the patent. — 39, 
 Deeds ; points to be noticed. — 40. Law of Pennsylvania as 
 to record of deeds. — 41. Law of Ohio. — 42. Law of Ken- 
 tucky. — 43. Law of Indiana. — 44. Law of Illinois. — 45. Law 
 of Iowa. — 46. Law of Kansas. — 47. Alabama, Colorado, 
 Georgia, JMichigan, Minnesota, Nebraska, New York, Ten- 
 nessee, Wisconsin. — 48, The names of the parties to the 
 deed. — 49. Vfords of inheritance. — 50. The words of grant; 
 statutory effect of certain words of grant. — 51. The consid- 
 eration, and whether paid or not. — 52. Tlie description of 
 the parcels. — 53. Descriptions imperfect by omission. — 54. 
 Descriptions imperfect by falsa additions, — 55, Descriptions 
 imperfect by errors. — 56. The declarations of trust. — 57, 
 Purchaser's obligation to see to application of purchase 
 money. — 58. The rents and reservations. — 59. The condi- 
 tions and limitations. — 60-62. Covenants which bind subse- 
 quent owners'. — 63. Effect of dispensing with a condition. — 
 64. Effect of entry for breach of condition. — 65. Covenants 
 enforced in equity. — 66. The usual covenants. — 67. Cove- 
 nant of seizin. — 68. Covenant of title. — 69. Covenants for 
 quiet enjoyment, — 70, Covenant against incumbrances, — 71, 
 Covenants that conditions have been performed. — 72. Re- 
 citals are notice. — 73, The testimonium clause, — 74. Seal- 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. 31 
 
 ing; scrawl seals. — -75. Erasures and interlineations. — 76. 
 The attestation by witnesses. — 77. The acceptance of 
 trusts.— 78. 
 
 Section 29. Adverse possession for the period 
 fixed by the statute of limitations is, in its effects, 
 equal to a perfect legal title. The seller, therefore, 
 is bound to trace his title back, at the least, through 
 that period. The exceptions in the statute in favor 
 of infants, lunatics, prisoners, married women, and 
 non-residents, introduce an element of uncertainty, 
 in point of time, against which there is no certain 
 precaution, except that of extending the search be- 
 yond the ordinary period of human life. The ex- 
 istence of intermediate life estates, deferring the 
 claims of remainder-men, requires the same care. 
 In England, where the limits of the statute are 
 fixed at forty years, a title that can not be traced 
 back for sixty years, is not marketable.^ It ought 
 not, therefore, to be considered an unreasonable 
 demand, if, in the western states, the buyer insists 
 on the production of a title, extending from the 
 patent granted by the United States to his owfi 
 time, and particularly so in those states, as in Ohio 
 and Kentucky, where parol evidence is admissible 
 
 ' [1 Sugden V. 551 ; 2 Id., p. 3. " The Vendor and Pur- 
 chaser Act, 1874, now provides, that, in the completion of any 
 contract of sale of land made after the 31st Dec, 1874, and 
 subject to any stipulation to the contrary in the contract, forty 
 years shall be substituted as the period of commencement of 
 title which a purchaser may require, in place of sixty years." 
 Williams E. P. 449.] ' 
 
32 SEARCH FOR DEEDS A^'D ABSTRACTING THEM. 
 
 to show 1111 equitable title anterior to the patent, 
 converting the patentee into a trustee for the equi- 
 table owners.^ If no paper title, founded upon the 
 patent, can be produced, satisfactory evidence of 
 adverse possession for the period of sixty years 
 ought to be required. "Where the purchaser 
 chooses ■ to run the risks of taking a title not 
 founded on a patent, nor on sixty years' possession, 
 the searcher should state, in his abstract, at what 
 date or conveyance his client directed him to be- 
 gin, in order that no blame may attach to him 
 should it subsequently appear that the seller had 
 no title. 
 
 Sec. 30. 'No title derived from the Indians is 
 recognized in tlie courts, except in those few cases 
 where they have been made at the time of a treaty 
 with the government, and have been sanctioned by 
 the United States.^ As a rule, in all the western 
 states, except in the military reserves, the United 
 States is the source of title for all lands. The gen- 
 eral statutes of the United States, regulating the 
 sales of the public land, are referred to in the Index 
 to the United States Revised Statutes. The de- 
 tails, as well as the private acts, are foreign to the 
 design of this work. 
 
 Sec. 81. The mode in which the public lands of 
 the United State are surveyed, conduces, in the 
 
 i[3 ^y^l-A. E. Prop., p. 197.] 
 '^ [3 Wash. R. P. ]8G, 187.] 
 
SBAECn FOR DEEDS AND ABSTRACTING THEM. 33 
 
 greatest possible degree, to compactness of settle- 
 ment. This method is rectangular. The greatest 
 division of land is called a township, containing 
 23,040 acres. The township is six miles square, 
 and is subdivided into thirty-six equal divisions, or 
 square miles, by lines crossing each other at right 
 angles, called sections. The section contains G40 
 acres, and is subdivided into four parts, called 
 quarter sections, each of which contains 160 acres. 
 The quarter section is subdivided into two equal 
 parts, containing 80 acres each, called half-quarter 
 sections, or eighths of sections, which last is the 
 smallest regular subdivision. The fractional sec- 
 tions containing less than 160 acres, are not liablo 
 to be subdivided. Those fractional sections con. 
 taining 100 acres and upward are liable to be di- 
 vided in such manner as to preserve the most com- 
 pact and convenient forms. The sections are num- 
 bered, beginning with 1, at the south-east corner, 
 and proceeding north to the north-east corner, and 
 beginning with 7, opposite 1, on the next line west, 
 aud so on ; but the system is not uniform ; the sec- 
 tions in some ranges being numbered from east to 
 west. A range is any series of contiguous town- 
 ships, laid off from north to south. The ranges 
 are numbered north and south from the base or 
 standard line, running due east and west; and 
 are counted from the standard meridian, east and 
 west. 
 
 Sec. 32. The state in which the land lies has the 
 exclusive power to determine how land shall be 
 
34 SEAECH FOR DEEDS AND ABSTRACTING THEM. 
 
 acquired, what contracts for tlie sale of it are valid, 
 and how it shall be conveyed, descend, and be in- 
 cumbered ISTo act of another state, and no adjudi- 
 cation of any court of another state, can, in any 
 manner or degree, affect or conti'ol it.' 
 
 Sec. 33. This rule, which is universally recog- 
 nized, is, in many of the states, made the subject 
 of statutes, by the effect of which deeds, wills, and 
 other instruments affecting the title to land, made in 
 another state and executed in the forms prescribed 
 by law there, are effectual to pass the title in the 
 state wherein the land is situate. Thus, in Ohio, 
 deeds, mortgages, powers of attorney, and wills, 
 executed in other states in conformity with the 
 laws of such states, are, on being recorded in Ohio, 
 as valid as if executed within the state in conform- 
 ity with the Ohio law.^ The same rule is adopted 
 in Illinois, in respect to deeds, provided that any 
 clerk of a court of record within the state, terri- 
 tory, or district, in which the deed was executed, 
 shall, under his hand and the seal of the court, cer- 
 tify that such deed is executed and acknowledged 
 or proved in conformity to the laws of such state 
 or territory.^ 
 
 Sec. 34. The practice of the courts of equity 
 
 ^ Story on Conf. of Laws, sec. 474 ; Wills v. Cowper, 2 Ohio 
 R. 124; Holmes v. Remsen, 4 Johnson's Chan. E. 469 
 
 ' [Ohio R. S., sees. 4111, 5937.] 
 
 '[111. R. S. 1880, p. 311, sec. 20, and Kans. Comp. L. 1881, 
 p. 213, sec. 25; Id., p. 1003, sec. 24; Wis. R. S. 1878, sec. 2218.] 
 
SEARCH FOR DEEDS AND ABSTKACTING THEM. 35 
 
 to decree a specific performance of a contract, for 
 the sale of land- lying in another state, where the 
 defendant has been served with process within the 
 territorial limits of the state in which the court is 
 sitting, is not a violation of, but is subordinate to, 
 this rule. In such eases, no title passes by the de- 
 cree, nor is any order made directing an ofiicer of 
 the court to execute a conveyance ; but the defend- 
 ant himself, over whom the court has acquired ju- 
 risdiction by the service of process upon liim, is 
 ordered to execute such a conveyance as shall be 
 valid and effectual by the law of the place where 
 the land lies, to the plaintiff; and the order is en- 
 forced by proceeding against the defendant, who 
 refuses to comply with it, as for a contempt of 
 court. If he contumaciously holds out in defiance 
 of the court, the remedies of the plaintiff are at 
 an end.^ 
 
 Sec. 35. All the information which the client 
 can impart having been acquired, the searcher can 
 facilitate his work by making a preliminary sketch 
 or reconnoissance, consisting of a map of the land, 
 upon which the course and distance of each line 
 and the monuments called for are accurately delin- 
 eated, and a tabular list of the names of the grant- 
 ors and grantees, with the dates of their respective 
 deeds, and the date and place of their registry, set 
 opposite the names. A conspicuous blank should 
 be left in the list, where the record fails to give the 
 
 ' ' Story on Conf. of Laws, sec. 424. 
 
36 -SEAECn FOR DEEDS AND ABSTRACTING THEM. 
 
 desired information as to any conveyance. Any 
 disconnection in the title Avill thus, at the outset, 
 become apparent ; and, if further search is not ren- 
 dered unnecessary by the existence of an irreme- 
 diable defect, the external inquiries for missing 
 deeds, or evidence of descents, or other connecting 
 links, may be immediately instituted. Very little 
 difficulty will be experienced in making this sketch 
 in those counties where conveyances are indexed, 
 as they are in Cincinnati, under the number of the 
 section, township, and range, into which, underthe 
 acts of Congress, the lands north-west of the Ohio 
 river were laid ofl". But where conveyances are 
 indexed only under the names of the grantor and 
 grantee, the sketch must contain references to all 
 deeds made by every grantor, not only during the 
 period of his apparent ownership, which is a mat- 
 ter of course, but to all deeds made subsequent to 
 the present one, during the whole period allowed 
 by law for recording deeds. All these deeds must 
 be examined, and stricken from the sketch, if 
 found not to relate to the land in question. The 
 necessity of this seemingly unnecessary labor will 
 be apparent upon considering that no negligence 
 can be imputed to any prior grantee in delaying to 
 record his deed until the last day allowed to him 
 by law for recording it; and that, therefore, if re- 
 corded on that last di\j, his deed will have priority 
 over a deed of subsequent date, though the hitter 
 was recorded first, and was taken iu ignorance of 
 the existence of the former. The ultimate limit 
 within which a deed, subsequent in point of record, 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. • 37 
 
 is allowed to over-ride one previously recorded, is, 
 in Ohio, six months ; in Jlentucky, tvsrelve mouths ; 
 in Pennsylvania, tvv'elve months ; and in Indiana, 
 forty-five days. In Illinois, lovC^a, and Kansas, 
 deeds take effect as against bova fide purchasers 
 only from the time that they are lodged for record 
 in the proper of&ce. 
 
 Sec. 36. The ohject of the abstract is to furnish 
 the buyer and his counsel with a statement of every 
 fact, and an abstract of the contents of every deed 
 on record, upon which the validity and marketable- 
 ness of the title depend : so full that no reasonable 
 inquiry shall remain unansv/cred ; so brief that the 
 mind of the reader shall not be distracted by irrel- 
 evant details ; so methodical that counsel may form 
 an opinion on each conveyanc^e as he proceeds in 
 his reading; and so clear that no new arrangement 
 or dissection of the evidence shall be required. The 
 buyer has a right to demand a marketable title. 
 He has a right to deniand that the abstract of title 
 shall disclose such evidence of that title, as will 
 enable him to defeat any action to recover, or in- 
 cumber, the laud. Any one who has tried to add 
 up a crooked column of figures, cau appreciate the 
 fact, that an abstract, which faithfully states all the 
 facts, may yet be very confusing from the mere in- 
 attention of the searcher to the details of arrange- 
 ment. The first thought that necessarily occurs to 
 the mind of the reader should, therefore, come first ; 
 whom this abstract was made for, what property it 
 relates to, and when it was made. Thus : 
 
38 SEARCH FOK DEEDS AND ABSTRACTING THEM. 
 
 An Abstract of the title of M. E. Curwen to 86-100 
 of an acre in Section 29, Township 3, Fractional 
 Range 2, bounded [stating the exact boundaries], 
 made January 12th, 1864. 
 
 Each deed, will, descent, judgment, or other step 
 in the title, should then be distinctly stated in sep- 
 arate paragraphs, with several blank lines between 
 them, and numbered continuously to the end of the 
 abstract. If the owner has directed at what period 
 the abstract shall begin, the statement of that fact 
 will constitute the first paragraph. Thus : 
 
 1. Mr. Curioen directed that the goodness of John 
 Doe's title to this parcel of land should be assumed. 
 
 2. Deed, 4th May, 1806 ; recorded, 4th December, 
 1807 ; Deed B. 11, p. 9 ; Hamilton County Ee- 
 corder's Office ; John Doe and Mary Doe, his 
 wife, to 
 
 Henry Stephen, Josiah W. Smith, and John Adams. 
 
 In proceeding to state the contents of documents, 
 the abstract should state the nature of the convey- 
 ance, the date of it, and the fact of its registry, with 
 the date, the volume, and page, and the title of tbe 
 record, ancl the office to which it belongs. These 
 particulars advise the reader, at the outset, to what 
 points his attention should be directed, and the 
 statement must be such as to enable him to judge 
 whether it is an instrument which the law allows 
 or requires to be recorded, and whether it is re- 
 corded within the time allowed by law, and in the 
 
SEARCH FOE DEEDS AND ABSTRACTING THEM. 39 
 
 proper ofSce. The record is not of itself notice of 
 instraments which the law does not require to be 
 recorded ; nor is it notice of instruments required 
 by law to be recorded, which are not executed with 
 the formalities required by law, or which are not 
 recorded in the proper county, and in the proper 
 office of that county, and, in some instances, within 
 the time allowed bylaw. The date of an instru- 
 ment may determine its priority over a rival claim, 
 under the ordinary rule, in cases not within the 
 registry laws, that priority, iu' point of time, con- 
 fers superiority in point of right. It also enables 
 the searcher, by comparing it, at one glance, with 
 the date of the record on the same line, to judge 
 whether the deed has been recorded within the. 
 limited time. In cases of deeds executed under 
 prior repealed laws, the statement of the date 
 guards the reader against the error of overlooking 
 that fact and rejecting a valid instrument for its 
 want of conformity to the law now in force. 
 Where the instrument is not dated, which some- 
 times happens from an omission to fill blanks in 
 printed forms, external evidence of the date of de- 
 hvery should be required. 
 
 Sec. 37. The first step, in all ordinary cases, be- 
 ing the patent from the United States, the abstract 
 begins with that document. In Ohio, and in Kan- 
 sas, the patent may be recorded in the office of the 
 recorder or registrar of deeds of the county in 
 which the land lies.' If not otherwise attainable, 
 
 '[OhioB. S. 1880, sec. 4137; Kans. Comp. L. 1881, p. 576, 
 
40 SEARCH FOE, DEEDS AND ABSTRACTING THEM. 
 
 an office copy can be procured from the general 
 land office at Washington, upon filing there the af- 
 fidavit of the owner, stating his ownership and oc- 
 cupation of the land, and the purpose for which 
 the coiiy is wanted. The fees required are at the 
 rate of fifteen cents per hundred words, and one 
 dollar for the seal. (E. S. U. S., sees. 460, 461 .) M"o 
 proof can be required of the execution of the pat- 
 ent, when the oi'iginal is produced, the courts tak- 
 ing judicial notice of the signatures of the heads 
 of the departments and of the official seal of the 
 land office.^ The points to be noticed, in the ab- 
 stract, are the date, the name of the person to 
 whom it was issued, the words of heirship, the re- 
 cital of the payment of the purchase money, the 
 person by whom the payment was made, the recital 
 of any assignment by the certificate holder, his rep- 
 resentatives or assigns ; the signing, sealing, and 
 volume and page of the record at Washington and 
 in the county where the land lies. 
 
 Sec. 38. In Ohio and Kentucky, the existence 
 of an equitable title anterior to the patent, can be 
 shown, and may be enforced against all persons 
 wlio have purchased the laud with notice of its 
 existence. The recital in the patent of an assign- 
 ment of the certificate by the administrator of the 
 
 Bee. 1; so also Ala. Code, 1 876, sec. 2231 ; la. Stat. 1880, p. 925; 
 Mich. Comp. L. 1871, p. 1353; duty of registrar to record, 
 Mich. L. 1877, p. 22; Min. K. S. 1878, p. 805, sec. 93; Neb. 
 Comp. Stat. 1881, p. 392, sec. 1 ; Wis. R. S. 1878, sec. 2235.] 
 ' 1 Grreenleaf Ev., sees. G, 503. 
 
SEARCH FOR DEEDS AND ABSTRACTIxa THEM. 41 
 
 enterer, may amount to such notice; for, prima 
 facie, he has by law no authority over the realty, 
 and can only acquire authority by an order of 
 court. An assignment of the certificate made by 
 him without such authority will not bind the heirs 
 of the decedent.^ 
 
 Sec. 39. The title to real property is transmitted 
 by deed, by will, by descent, by marriage, or by the 
 execution of the judgment or decree of a court of 
 competent jurisdiction. Deeds shall first be no- 
 ticed. The particulars to be abstracted are : 
 
 1. The nature of the conveyance, the date of it, 
 the fact of the registry, with the date, the volume, 
 and page, and the title of the record, and the office 
 to which it belongs. The rea;sons for this have al- 
 ready been stated. 
 
 2. The names of all the grantors, the names of 
 their wives, the character in which the grantors 
 act, if in any ofiicial or fiduciary character, and 
 their residences, if the deed appears to have been 
 executed abroad. 
 
 3. The names of all the grantees, the words of 
 heirship, or other words of limitation of the estate, 
 and the character in which the grantees take, if in 
 any official or fiduciary character. 
 
 4. The words of gtant, and whether the wives 
 are joined in the granting clause. 
 
 5. The amount or nature of the consideration, 
 
 '■ Reeder v. Barr, 4 Ohio, 446 ; Matoon v. Clapp, 8 Ohio, 248 ; 
 Bonner v. Ware, 10 Ohio, 465 ; Bell v. Duncan, 11 Ohio, 192. 
 4 
 
42 SEARCH FOE DEEDS AND ABSTRACTING THEM. 
 
 and whether it is recited to have been paid, or to 
 have been secured, and how secured, and by whom 
 paid, or whether it is unpaid ; and, if paid, whether 
 a receipt is indorsed on the deed, in those states 
 where tliat practice prevails. 
 
 6. The description of the premises conveyed, in 
 the exact language of the deed, including all the 
 exceptions. 
 
 7. If the habendum is expressed in any other 
 than the usual formal words, " to the use of. the 
 grantees and their heirs," the variation should be 
 noticed ; if otherwise, this clause should not be 
 mentioned. 
 
 8. The declaration of trusts, if any are con- 
 tained in the deed, stating them in the words of 
 the instrument. 
 
 9. The rents or other reservations out of the 
 profits of the land. 
 
 10. The conditions and other limitations upon 
 the title or the use of the land. 
 
 11. The covenants, which are suiBciently stated 
 by naming them, except in cases where unusual 
 covenants are inserted. 
 
 12. The recitals in the deed. 
 
 13. The testimonium clause, including the sign- 
 ing and sealing, and the special release of dower, 
 if such a provision is inserted in it, the attestation 
 of the- subscribing witnesses, the Avords of attesta- 
 tion, and the number of the subscribing witnesses. 
 
 14. The stamp.i 
 
 ' [The Internal Revenue Act, 13 U.S.Stat, at Large, 291, sees. 
 351, 156, 158, June 30th, ISG^l, requiring that every deed, instru- 
 
SEAKCH FOR DEEDS AND ABSTRACTING THEM. 43 
 
 15. The acknowledgment or proof of the deed, 
 the date of the acknowledgment, the name and 
 official title of the officer before whom it is taken, 
 the place iu which it is taken, whether all the 
 grantors unite in it, whether the vnie unites in a 
 joint acknowledgment with the husband, the wife's 
 separate acknowledgment on private examination, 
 whether the officer made known to her the contents 
 of the deed, whether she then expressed herself still 
 satisfied, the signature of the officer, his seal, if he 
 has a seal ; whether the certificate is indorsed on the 
 deed itself, or is on a separate paper attached to the 
 deed ; and, in case of deeds made out of the county, 
 the proof of the official character of the officer be- 
 fore whom the deed was acknowledged or proved. 
 
 16. "Where the validity or effect of a deed de- 
 pends upon its being made in conformity with the 
 
 ment, or writing, whereby any lands, tenements, or other realty 
 sold, shall be granted, assigned, transferred, or otherwise con- 
 veyed to, or vested in, the purchaser, must be stamped, was re- 
 pealed by Act of Congress, June 6th, 1872,whichwent.in to effect 
 Oct. 1st, 1872 (17 U. S. Stat, at Large, 255). Stamp duties upon 
 deeds, etc., were imposed by Acts of Congress, beginning with 
 the Excise Tax Law of July 1st, 1862, which went into opera- 
 tion Sept. 1st, 1862. All deeds, between July 1st, 1862, and 
 Oct. 1st, 1S72, required a stamp. There was a proviso in the 
 158th section of the Ir.ternal Revenue Act of June 30th, 18G4, 
 that the " title of a, purchaser of land, by deed duly stamped, 
 shall not be defeated or affected by want of a proper stamp 
 on any deed conveying said land by any person through or 
 under whom his grantor claims or holds title." Williams' R. 
 P. 150ra. The Act of March 3rd, 1865, allowed the instrument 
 to be stamped afterward.] 
 
44 SEAKCH FOE DEEDS AKD ABSTRACTING TIIEM. 
 
 law of another state, some proof of tliat conformity 
 should be required, and stated in the abstract.'' 
 
 ' [111 CooIpy's Blackstone, the following abstract of title is set 
 out, which mny give the student an idoa of what is necessary 
 to be done before pronouncing an opinion as to its validity; 
 
 " South-west quarter of section 12, town. 9, south, range 2, 
 east, Ohio: 
 
 1. Entered by John Hemingway, and patented by U. S. to 
 him Aug. 1st, 1836. 
 
 2. John Hemingway to William Jackson, warranty deed; 
 dated September 10th, 1836; recorded March 18th, 1838, in 
 liber B of deeds, page 80. Duly witnessed and acknowledged. 
 
 3. William Jackson to Eichard Benson, warranty deed; 
 dated March 18th, 1838; recorded same day, in liber B of 
 deeds, page 81. Duly witnessed and acknowledged. 
 
 4. Richard Benson and Harriet, his wife, to James Byles, 
 quitclaim deed ; dated October 1st, 1862; recorded same day, 
 in liber Y of deeds, page 292. Executed in the State of >few 
 York, and properly certified. 
 
 5. James Byles, by William Smith, his attorney in fact, to 
 Edgar Bennett, warranty deed; dated July 15th, 1868; re- 
 corded October 12th, 1868. In due form of law. 
 
 Tire records of this office show no mortgages or other liens 
 upon the land, and the title appears to be perfect in Edgar 
 Bennett. John Doe, Reyister of Deeds." 
 
 Before passing upon the soundness of this title, the convey- 
 ancer must make further investigations. Among those sug- 
 gested, the following are important: 
 
 The identity of the parties, so far as ascertainable, with 
 those in the abstract; an investigation as to the validity of 
 the patent; whether the grantors are married, and their 
 wives are joined in the conveyance; whether the attestation 
 and acknowledgment of tlie various deeds are in conformity 
 with the statutes in force at the time of their execution ; the 
 inference to be drawn from the giving of a quitclaim instead 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. 45 
 
 These particulars, and the statutory provisions 
 respecting them in Pennsylvania, Ohio, Kentucky, 
 Indiana, Illinois, Iowa, and Kansas, will bo noticed 
 in their order. And, first, of the date and place of 
 the record of deeds and other instruments aflect- 
 ing the title to lands : 
 
 ■ Sec. 40. In Pennsylvania, all written contracts, 
 whether by deed or not, maybe recorded in the of- 
 fice for the recording of deeds. If executed in the 
 state, deeds must be recorded in six months from 
 the date of their execution ; if executed out of the 
 state, and within the United States, and acknowl- 
 edged in due form before any officer or magisti^ate 
 of the state wherein they were executed, authorized 
 by the law of that state to take acknowledgments 
 
 of a warranty deed; where a conveyance is made by the heirs 
 of a deceased person, an inquiry as to whether a iviil has been 
 probated, or administration taken out of the estate; and, in 
 the latter case, whether there were not enough personal assets 
 to pay the debts of the estate, and it has boon found neces- 
 sary to sell the real estate to pay them, and the number, iden- 
 tity, and age, of the respective heirs; where the deed has 
 been executed in another state, and in compliance with its 
 statutes, whetlier the statutes of the state in which the prop- 
 erty is situated allow the deed to be so executed ; whether 
 the rights of any of the parties, or any of them, have been ex- 
 tinguished by adverse possession ; where the wife has united 
 in the conveyance, whether the execution and acknowledg- 
 ment of the deed are in due form of law; whoi-e a deed has 
 been executed by an attorney in fact, whether the power was 
 duly executed and recorded ; whether the homestead law of 
 the state affected the conveyance. 
 
 These are a few of the many inquiries which must be made 
 before a title can be passed upon by the conveyancer.] 
 
46 SEARCH FOE,- DEEDS AND ABSTKAOTING THEM. 
 
 of deeds, they must be recorded within twelve 
 montlis from the date of execution.* Deeds, not 
 recorded within the time limited, are void as to 
 subsequent 6o??a_^(;fe purchasers and mortgagees for 
 valuable consideration, Avhose conveyances are first 
 recorded.^ Leases not exceeding twenty-one years, 
 where the actual possession and occupation goes 
 with the lease, are not within the registry acts.^ 
 
 Sec. 41. In Ohio, an imperfectly executed in- 
 strument, or one not required to be recorded, de- 
 rives no efficacy from being placed on record.* The 
 record of it neither operates as constructive notice 
 to subsequent purchasers, nor can a certified copy 
 of it be used as evidence.' As between the grantor 
 and grantee, no recording is necessary to perfect 
 the title, but the record of a perfectly executed in- 
 strument, which the law allows to be recorded, and 
 
 ^ [Brightly's Purd., p. 473, sec. 76. Commissioners in Chan- 
 cery in foreign countriesmaytakeacknowledgments of deeds. 
 Pa. Sup , p. 2110, sec. 4. Mortgages are a lien from the date 
 of record, except purchase money mortgages, which are alien 
 from date, if recorded within sixty days. They can not he 
 recorded unless acknowledged or proved. Brightly's Purd., p. 
 478, sec. 103. Leasehold mortgages must be acknowledged 
 and recorded with the leases. Sup., p. 2004, sec. 8.] 
 
 ^[Brightly's Purd., p. 473, sec. 76; Sander v. Morrow, S3 
 Penn. St. 83. In Philadelphia, deeds are only valid as against 
 subsequent purchasers from date of record. May 2.oth, 1878, 
 Sup., p. 2111, sec. 5.] 
 
 ^ [Brightly's Purd., p. 473, sec. 78.] 
 
 *[Ilamsey v. Eiley, 13 Ohio, 157.] 
 
 ^[Johnston, Lessee, v. Haines, 2 Ohio, 55.] 
 
SEARCH FOK DEEDS AND ABSTRACTING THEM. 47 
 
 which is in the line of the title, and is recorded in 
 the proper office, and in the proper books in that 
 office, is constructive notice to all subsequent jiur- 
 chasers.^ All deeds and other instruments of writ- 
 ing for the conveyance or incumbrance of lands, 
 except mortgages, must be filed for record in the 
 office of the recorder of the county in which the 
 lands lie, within six months from the date thereof; 
 and, if not so filed for record within that time, are 
 deemed fraudulent, so far as relates to any subse- 
 quent bona fide purchaser having, at the time of 
 making such purchase, no notice of the existence 
 of such former deed or other instrument of writ- 
 ing.^ Leases of school or ministerial lands, for any 
 term not exceeding ten years, or for any other lands 
 for any term not exceeding three years, are not re- 
 quired to be recorded.^ Powers of attorney au- 
 thorizing the execution of any deed, mortgage, or 
 other instrument of writing, for the sale, convey- 
 ance, or incumbrance of any laud, must be recorded 
 in the office of the recorder of the county in which 
 the lands are situated, previous to the sale or exe- 
 cution of the instrument by virtue of the power of 
 attorney.^ If a married woman has joined in the 
 execution of the power of attorney, she may, at any 
 time previous to the sale and conveyance of the 
 land, revoke the power, so far as it relates to her 
 interest in the land, by an instrument recorded in 
 
 '[Irvin's Lessees. Smith, 17 Ohio, 226.] 
 '[OhioE. S., sec. 4134.] 
 '[Id., see. 4112.] 
 * [Id., sec. 4132.] 
 
48 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 the county where the land lies. The revocation is 
 inoperative until so recorded.^ These provisions 
 allowing six months to record an instrument, it will 
 be observed, do not include mortgages, which are 
 governed by a diiForent rule. 
 
 Sec. 42. In Kentucky, no deed conveying any 
 title to, or interest iu land, for a longer time than 
 five years, nor any agreement made on considera- 
 tion of marriage, is good against purchasers not 
 having notice thereof, or any creditor, or innocent 
 purchasers and creditors of the heirs and devisees 
 of any grantor in such deed as to the lands em- 
 braced therein, unless the deed is lodged in the 
 clerk's office of the court of the county in which 
 the property conveyed, or a greater part of it, lies.^ 
 If made by residents of Kentucky, it must be 
 lodged for record within sixty days from the date 
 tliercof ; if made by persons residing out of Ken- 
 tucky and in the United States, within four months ; 
 if made by persons residing out of the United 
 States, within twelve months. If recorded after- 
 ward, the deed is notice from the time of tlie re- 
 cording.^ Mortgages and deeds of trust in the 
 nature of mortgages take effect from the time that 
 tliey are lodged for record.' 
 
 Sec. 43. In Indiana, deeds not recorded within 
 forty-five days from the date of their execution, are 
 
 i[Ohio R. S., sec. 4109.] 
 
 2[Ky. Gen. Stat. 188], p. 255, sec. 8.] 
 
 »[Icl.,p. 257, sec. 14.] 
 
 *[Id., p. 2.58, sec. 21.] 
 
BEAKCH FOR DEEDS AND ABSTRACTING THEM. 49 
 
 deemed fraudulent as to subsequent purchasers or 
 mortgagees in good faith for valuable consideration.^ 
 
 Sec. 44. In Illinois, deeds take effect, as against 
 all creditors and subsequent purchasers without 
 notice, from the time they are filed in the office of 
 the recorder for record ; and from that time are 
 notice, whether acknowledged or proved according 
 to law or not. The revocation of a power of at- 
 torney for the sale or conveyance of land is eft'ected 
 by a recorded deed of revocation.^ 
 
 Sec. 45. In Iowa, no instrument affecting real 
 estate is lawfully recorded unless it has been pre- 
 viously acknowledged or proved.' 'No instrument 
 is valid, as to subsequent purchasers for valuable 
 consideration, without notice, unless recorded in 
 the ofiice of the recorder of deeds in the county 
 where the land lies.^ 
 
 Sec. 46. In Kansas, deeds take eft'ect as against 
 subsequent bona fide purchasers for value, without 
 notice, from the time that they are recorded in the 
 office of the register of deeds, in the county where 
 the land lies.^ Parol leases, not exceeding one 
 year's duration, are valid.^ 
 
 i[Ind. K. S. 1881, sec. 2931. J 
 ^[Ills. R, S. 1880, p. 316, sees. 30-31.] 
 ' [la. Stat. 18S0, sec. 1942.] 
 * [Id., sec. 1941.] 
 
 ^[Kans. Comp. L. 1881, p. 212, sec. 21.J 
 '[Id.,p. 464., sec. 5.] 
 5 
 
50 SEAKCH FOK DEEDS AND ABSTRACTUCS THEM. 
 
 [Sec. 47. In Alabama, Colorado, Michigan, Min- 
 nesota, Nebraska, !N"ew York, Teiiuessee, and Wis- 
 consin, deeds take effect as against all creditors and 
 subsequent purchasers without notice, from the 
 time they arc filed for record.' 
 
 In Alabama, all conveyances, mortgages, and in- 
 struments in the nature of mortgages, must be re- 
 corded within three months.^ In Georgia, dseds 
 must be recorded within one year,^ and mortgages 
 within thirty days from date, in the office of the 
 clerk of the superior court of the county where the 
 land lies.''] 
 
 Sec. 48. With respect to the clause containing 
 the names of the parties, it is manifest that merely 
 signing, sealing, and acknowledging a deed iu 
 which another person is grantor, and which contains 
 no words applicable to the interests of the signer, can 
 not, in law, be held to be a legal grant; yet the mis- 
 take of naming several persons as parties in the 
 premises, and confining the granting words to one 
 of them, is not very uncommon. In Iowa,if the wife 
 joins her husband in a deed, it passes her rights, 
 unless the contrary appear in the face of the con- 
 
 i[Ala, Code, 1876, sec. 2149 ; Col. Gen. L. 1877, p. 139; Mich. 
 Comp. L. 1871, sec. 4231; Minn. R. S. 1878, p. 537, sec. 21; 
 Neb. Comp. Stat. 1881, p. 389, sec. 16; N. Y. R. S 1882, vol. 
 3, p. 2215; Tenn. Stat, sec. 2072; Wis. R. S. 1878, sec. 2241.] 
 
 ^ [Ala. Code, 1870, sec. 2166.] 
 
 8[Ga. Code, 1873, sec. 2705.] 
 
 *[Ga. Sup. 1878, sec. 334; Act 1876, p. 34.] 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. 51 
 
 veyance." In Ohio, the interest of the wife passes, 
 whether it be a right of dower or the fee, if she 
 unites as grantor in the granting clause f and the 
 omission by mistake of granting words, in deeds 
 executed subsequent to April 1st, 1849, may be cor- 
 rected against the wife, as well as against the hus- 
 band.^ Where the grantor is acting in an official, 
 fiduciary, or representative character, the deed 
 should be carefully examined, to see if, in fact, it 
 binds the interest it professes to convey. Deeds, 
 executed by agents, must, by the common law, be 
 expressed to be, throughout, the deed of the princi- 
 pal. It is not sufficient, as is the case with unsealed 
 contracts, that the fact of agency can be gathered 
 from the whole instrument. If not made in the 
 name of the principal, it is not his deed, but the 
 deed of the agent alone.* This rule is, in Ohio, 
 altered by statute, which gives effect to the instru- 
 ment as the deed of the principal, if the fact of the 
 agency appears upon the face of the writing.'' The 
 most common errors, under this head, arise in the 
 deeds of trustees, executors, and official persons,who 
 often erroneously suppose that the addition of words 
 descriptive of their official character, exempts them 
 from personal responsibility .« The vocation and 
 
 '[la. Stat. 1880, sec. 1936.] 
 ^[OliioRS. 1880, sec. 4107.] 
 
 ' [Id., sec. 5872; McFarland v. Febiger, 7 Ohio, pt. 1, p. 194; 
 Bee Goshorn v. Purcell, 11 Ohio St. 641.] 
 
 * [Story on Agencj-, sec. 148.] 
 '[OhioR. S., SCO. 4110.] ■ 
 
 * [Rawle on Covenants (4th ed.), 49, 50.] 
 
52 SEAECH FOR DEEDS AND ABSTRACTING THEM. 
 
 residence of the parties is seldom stated in modern 
 deeds, and is immaterial, except where the validity 
 of the deed depends upon the residence, as it may in 
 Kentucky, or the name is so common as to occasion 
 difficulty in proving the identity of the party. If 
 the name of the grantee is omitted, the defect may 
 be supplied by the habendum clause, since, under the 
 statute of uses, he to whom the first use is limited 
 must be. the grantee.^ Where the christian name 
 of the grantor is expressed only by initials, or differ- 
 ent christian names are given to him in different 
 parts of the deed, or the wife is described as wife 
 without giving her name, verbal evidence is admis- 
 sible to show who the person was who executed the 
 deed ; but, as such irregularities occasion difficulty 
 in proof, they should be stated in the abstract.^ 
 The rule, that delegated authority can not be dele- 
 gated, precludes executors, trustees, and official per- 
 sons from conveying by power of attorney, except 
 in Pennsylvania, where, by statute, trustees and 
 executors may convey by power of attorney.' 
 Questions of the capacity of an unincorporated so- 
 ciety, assuming to act under a name as if incorpo- 
 rated, to take and hold land, must be determined 
 by the local law. The power of a corporation to 
 be a grantor, or to become a grantee, is a question 
 of the true construction of the charter. 
 
 Sec. 49. At common law, the word "heirs" is 
 
 ^ Irwin V. Longworth, 20 Ohio, 581. 
 
 ''Bacon's Ab. Misnomer; Smitli on Eeal & Per. Prop. 
 
 '[Briglitly's Purd., p. 101, sec. 4.] 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. 53 
 
 indispensable to create an estate in fee by deed. In 
 Illinois, Iowa, and Kansas, no words of inheritance 
 are necessary to pass a fee.^ In all these states, 
 there are statutes restricting the creation of es- 
 tates tail, and giving to the words "heirs of the 
 body" a meaning different from that which attaches 
 to them at common law. 
 
 Sec. 50. A statement of the words of grant is 
 important for two reasons : they are necessary to 
 the validity of the deed, and they often imply cove- 
 nants. The usual words, in all deeds of bargain and 
 sale, upon which the deeds of all the states men- 
 tioned in this chapter are modeled, are "grant, 
 bargain, and sell." Under the English statute of 
 Anne, either of these words, in deeds conveying a 
 fee, imply that the grantor was seized of an inde- 
 feasible estate in fee simple, free from incumbrances 
 done or suffered by the grantor, except the rents 
 or services that may be reserved, and also for quiet 
 enjoyment against the grantor, his heirs and as- 
 signs, unless limited by express words contained in 
 the deed, except certain leases not material to the 
 present purpose.^ This statute, has been, in sub- 
 
 i[Ills. E. S. 1880, p. 308, sec. 9; la. Stat. 1880, sec. 1929; 
 Kans. Comp. L. 1881, p. 210, sec. 2; so, also, Ala. Code, 1876, 
 sec. 2178; Ga. Codp, 187.3, sec, 2248; Ky. Gen. Stat. 1881, p. 
 585, sec. 7; Minn. R. S. 1878, p. 5.34, sec. 4; Neb. Comp. Stat. 
 1881, p. 393, sec. 49; N. Y. K. S., vol. 3, p 2205, sec. 1 ; Tenn. 
 Stat. 1871, sec. 2000.] 
 
 2 [Williams E. T., 5th Am. ed., p. 445. By the 8 and 9 Vict., 
 c. 106, it is declared that the words " give " and " grant," in a 
 deed between individuals, do not imply covenants. 3 Wash. 
 R. P. 483.] 
 
54 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 stance, re-enacted in Pennsylvania and Illinois.* In 
 Kentucky, a deed of bargain and sale, a deed of 
 release, or grant, is sufficient to transfer the posses- 
 sion of an owner in possession.^ In Iowa, the 
 words " quitclaim " or " convey " are sufficient.' 
 At common law, the grant of like estates, in the 
 same land, to two or more, by the same deed, made 
 the grantees joint-tenants, an estate which, if con- 
 tinued in the same grantees until the death of one 
 of them, gave the whole interest to the survivor. 
 ISTo such rule prevails in Ohio, Indiana, Illinois, 
 Iowa, or Kansas.* 
 
 Sec. 51. The amount of the consideration 
 should be stated, for the recital of it is evidence of 
 the amount of damages which the grantee will be 
 entitled to recover in case he is evicted by a para- 
 mount title ; the nature of it should be stated, as 
 
 i[Brightly's Purd., p. 472, sec. 75; Ills. R. S. 1880, p. 308, 
 sec. 8 ; Ala. Code, 1876, sec. 2193.] 
 
 2[Ky. Gen. Stat. 1881, p. 255, sec. 3.] 
 
 '[la. Stat. 1880, sec. 1970; Deed of "quitclaim," or "re- 
 lease," is sufficient in Ind. R. S. 18S1, sec. 2924; Mich. Comp. 
 L , 1871, p. 1342, sec. 3 ; Minn. Stat. 1878, p. 534, sec. 4; Wis, 
 R. S. 1878, sec. 2207,] 
 
 * [Sergeant et ux. v. Steinberger et al., 2 Ohio, 305; Ind. B. 
 S. 1881, sec, 2022; Ills. R. S. 1S80, pp. 307, 859, sees. 1, 5; la. 
 Stat. 1880, sec. 1939; Kans. Gen. Laws, 1859, p. 289; so, .ilso, 
 Ala. Code, 1876, sec. 2191 ; Col. Gen. L. 1877, sec. 160; Ga 
 Code, 1873, sec. 2300; Ky. Gen. Stat. 1881, p. 586, sec. 13 
 Jlich. Comp. L. 1871, p. 1329, sec. 44; N. Y. R. S., vol. 3, p, 
 2L79, sec. 44; Pa, Brightly's Purd., p. 815, sec. 1; Tenn. Stat, 
 1871, sec. 2010; Wis. R. S. 1878, sec. 2068.] 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. 55 
 
 money or natural affection, that inquiry may, if 
 necessary, bo made, whether the deed is liable to be 
 called in question as in violation of the statute 
 against fraudulent conveyances; the recital of the 
 payment should be stated, because its absence is 
 notice to the grantee that the prior grantor is un- 
 paid, and that, therefore, a lien exists upon the 
 property to secure its payment, and, if the practice 
 is to indorse a receipt for the purchase money on 
 the deed, its presence or absence must be noted, 
 since its absence is, in like manner, notice of a 
 vendor's lien.' The law on this subject is more 
 fully stated in section 57. The necessity of stating 
 a consideration, and who paid the consideration, 
 ai^ses from the doctrine of equity that a conveyance 
 not appearing to bo induced by value paid by the 
 grantee, must be assumed to have been intended to 
 be held by the grantee in trust for the grantor, or 
 other person who paid the consideration money. 
 The doctrine applies to all persons, except where 
 the grantee is the child, or other person to whom 
 the payer has undertaken to perform the duties of 
 a parent.^ In Kansas, the purchase by one with 
 the money of another, does not create any resulting 
 trust in favor of the owner of the money .^ 
 
 ^2 Story's Eq. Juris, sees. 12IG-1230. 
 
 2 {Adams' Equity, 33, 35 ; 2 Story's Eq. Juris., sees. 1201- 
 1203.] 
 
 '[Kans. Comp. L. 1881, p. 989, see. C; so, also, Mieh. Comp. 
 L., p. 1'331, see. 7; Ind. R. S. 1881, sec. 2974; Ky. Gen. Stat. 
 1881, p. 587, sec. 19; N. Y. R. S., vol. 3, p. 2181, sec. 51.] 
 
56 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 Sec. 52. If the premises have been accurately 
 described in the heading of the abstract, the only 
 care required is to note any variation from the 
 boundaries, lines, or monuments, as therein stated. 
 Repetition of the same matter is to be avoided, as 
 tending to prolixity and confusion. The remai'ks 
 made in section 1, Avith respect to the description 
 of the premises in the contract of sale, are applica- 
 ble, also, to the deed. I^o external evidence of in- 
 tention is admissible. The only evidence that can 
 be offered in explanation of the terms of the deed, 
 is that which shows what property answers to the 
 description contained in the instrument.^ If, know- 
 ing all the facts about the property itself — paying 
 no attention to what may have been in the miml 
 of the parties when the deed was made — the court 
 find the language of the description totally inap- 
 plicable to the existing facts, they must declare the 
 deed invalid, for the simple reason that it points 
 to no subject upon which it can operate.^ 
 
 Sec. 53. It is not, however, to be supposed that 
 the existence of a difficulty, or an error, in the de- 
 scription, where the subject can be identified from 
 the other words of the deed, will invalidate the in- 
 strument. The parties, it must be assumed, in- 
 tended to make a valid grant, and to give to the 
 whole description its natural effect; and, therefore, 
 to have contemplated a resort to the usual means 
 
 1 1 Greenleaf on Ev., sec. 287 ; Hildebrand v. Fogle, 20 Ohio, 
 147. 
 ' 1 Greenleaf on Ev., sec. 290. 
 
SEAKCH FOR DEEDS AND ABSTRACTING THEM. 57 
 
 of supplying an omitted pai't of the description, 
 where the deed furnishes all the data for that pur- 
 pose. Thus, a grant often acres in the nortli-west 
 corner of a section, or on the west side of a section, 
 is, in fact, a description of a tract, in which, in one 
 case, the two sides, the angle, and the included quan- 
 tity, are given to find the two other sides, the result 
 being a square ; and, on the other, the three sides, 
 and all the angles and quantity, are given to find 
 the other side. But, it is evident that the deed 
 would afford no data for computing the lines of a 
 tract described as " ten acres in a corner " of such 
 a section. In the absence of external evidence, 
 which is inadmissible, it would be impossible to as- 
 certain which of the four corners was intended ; all 
 the deed would, for that reason, be void.^ 
 
 Sec. 54. A difficulty of an opposite kind arises 
 from over-anxiety to identify the property, ia cases 
 where the conveyancer, not satisfied with having said 
 enough, proceeds to incumber his description with 
 details which are wholly unnecessary, and which 
 turn out to bo, in fact, erroneous and inapplicable. 
 If, upon striking out the erroneous details, a descrip- 
 tions which fits the property remains, the deed is 
 good. This is a correction which every thoughtful 
 reader applies to every error in detail which comes 
 under his notice : he corrects it by the context. He 
 does not mistake an error of this kind, arising from 
 ignorance of the true qualities of the subject, for a 
 
 ' Walsh V. Binger, 2 Ohio, 328. 
 
58 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 clause intelligently and purposely inserted as a 
 qualification of a more genei-al description.^ 
 
 Sec. 55. The imperfection of descriptions arising 
 from positive error, occasions more litigation than 
 those already' stated, but the means for their cor- 
 rection are to be found in the plain, common sense 
 interpretation of the deed. An error evidently ex- 
 ists somewhere. The questions are, M^here is the 
 error? And, does the deed furnish the means for 
 its correction ? To insist upon a literal adherence 
 to every clause in the deed, when, on comparing it 
 with its assumed subject, it is found that there is a 
 plain error in some clause, is to sacrifice the end of 
 the whole document for the needless saving of one 
 of its means. The errors alluded to are those 
 which show a want of correspondence in the differ- 
 ent parts of the description. The clauses do not 
 fit together ; one line is too long, one too short ; 
 one runs in a direction opposite to all the require- 
 ments of the other lines; one is so indefinitely ex- 
 pressed, in course or distance, as to leave the 
 reader in doubt where it will go; or two lines 
 which, to conform to other lines, ought to be par- 
 allel, cross each other at acute angles, like the blades 
 of an opened pair of scissors, and include nothing. 
 Tlie correction of such errors depends upon very 
 simple principles. That part of the description 
 which fits the subject is, by that circumstance, 
 proved to be free from error. The data begin 
 there. An error is more easily committed in mat- 
 
 ' 1 Greenleaf on Ev., sec. 301; Broom's Maxims, 490. 
 
SEAECH FOR DEEDS AND ABSTRACTING THEM. 59 
 
 ters, requiring care aiKl skill, ^vhich are rare, than 
 in matter of eyesight, which is common. A call 
 for a planted stone, a marked tree, the established 
 line of the section known to the Avhole township, 
 ought, for this reason, to be assumed to have been 
 what was intended to mark the boundary line, 
 rather than a line determined only by the magnetic 
 needle, the accuracy of which is a question of skill- 
 ful observation and local attraction, or by the sur- 
 veyor's chain, in which there is almost an equal 
 chance of error. Course and distance, therefore, 
 give way, in case of disagreement, to monuments 
 and other visible objects. ITo one who has handled 
 a surveyor's compass will be surprised at the courts 
 for construing the deed by reversing all the courses, 
 callingnorth, south, and east, west, or, in the absence 
 of all other data, rejecting words of approximation 
 for a definite certainty, and reading northwardly 
 due north. If, by the process of correction thus 
 indicated, the property is identified, the deed is 
 good. That is certain, which can be made so.^ 
 
 Sec. 56. The declarations of trust in a deed 
 should be copied Avord for word, and require the 
 closest attention of counsel. They advise the pur- 
 chaser that he is dealing with a person who has 
 not the beneficial ownership, and who can convey 
 to him no title, except in strict conformity with the 
 
 1 Wolfe V. Scarborough, 2 Ohio St. 368 ; McCoy v. Galloway, 
 3 Ohio, 283; Nash v. Atherton, 10 Ohio, 170; Barclay v. How- 
 ell, 6 Peters, 511 ; Lipscom v. Grubbs, 3 Bibb, 400; Croghan v. 
 Nelson, 3 Howard, 194; Wyckoffw. Stephenson, 14 Ohio, 19. 
 
60 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 terms of the trust. All the risks of misinterpret- 
 ing the extent of the trustee's authority, are de- 
 volved on the pui-chaser. These risks are of two 
 classes : 1, that the terms of the trust do not au- 
 thorize the trustee to sell at all, or not to sell ex- 
 cept upon conditions which have not been complied 
 with, and 2, that the receipt of the trustee for the 
 purchase money may not be a discharge of the pur- 
 chaser. With respect to the authority of the 
 trustee to sell, the only guide is the declaration of 
 trust. In the execution of the power, the trustee 
 is bound to bring the estate to sale under every 
 possible advantage to the beneficial owner. If the 
 purchaser knows that the trustee plainly neglects 
 his duty in this respect, he can never compel a spe- 
 cific execution of the agreement, and may involve 
 himself in the consequences of a breach of trust.^ 
 One of these consequences is, that the beneficial 
 owner may compel the purchaser, buyer under cir- 
 cumstances amounting to a breach of trust, to re- 
 store the trust property. All who concur in, or 
 knowingly profit hj, a breach of trust, are princi- 
 pals, equally liable to make restitution to the bene- 
 ficial owner for the wrong done to him. This lia- 
 bility extends to all who buy with notice of the 
 trust, and a breach of it, or who, in ignorance of the 
 trust and its breach, have taken the property from 
 the wrong-doer without paying value for it.^ 
 
 ' Turner v, Harvey, Jacobs, 178. 
 
 2 Huguenin v. Basely, 14 Ves. 273 ; [2 White & Tudor's L. C, 
 pt. 2, p. 1156; 2 Perry on Trusts, 3rd ed., sec. 790.] 
 
SEARCH FOR DEEDS AKD ABSTRACTING THEM. 61 
 
 Sec. 57. The second class of risks, which a pur- 
 chaser buying property covered by a trust must 
 encounter, is that the trust may be of such a char- 
 acter as will oblige him to be responsible that the 
 trustee properly applies the purchase money, in ac- 
 cordance with the terms of the trust ; in other 
 words, that the trustee's receipt to him, on his pay- 
 ing the purchase money, may be no defense to a 
 suit brought by the beneficiary against himself, to 
 compel a second payment of the purchase money, 
 in case the trustee should have misapplied the first 
 payment. This obligation of the purchaser to see 
 to the proper application of the purcliase money, 
 is deduced from the rule, that he who buys with 
 notice of a trust, buys subject to the trust. It is a 
 question of the intention of the creator of the 
 trust, to be gathered from the whole instrument ; 
 and, if any doubt arises, a verbal copy of the ma- 
 terial parts of the instrument should be set out in 
 the abstract. An intention to make the purchaser 
 responsible, is deemed to exist where the terms of 
 the trust imperatively require the proceeds of the 
 sale to be paid to a person in being, and competent 
 to bind himself by his receipt ; and where, there- 
 fore, any other use of the fund would involve a 
 breach of trust. The obligation does not exist 
 where an investment is directed to be made, which 
 involves the exercise of the skill and judgment and 
 discretion of the trustee ; or, where the fund is for 
 the use of a person not then in being, or not com- 
 petent to bind himself;, or, where the direction is 
 to pay creditors generally, whose names, and the 
 
62 SEARCH FOE DEEDS AND ABSTRACTING THEM. 
 
 amounts of whose debts, are not stated. In the 
 case of a plain direction to pay the money to a per- 
 son who is named, and who is competent to give 
 his receipt for it, the purcliaser may protect him- 
 self by requiring him to join in the receipt given 
 by the trustee; and if he omits to take that pre- 
 caution, he is liable ; but it is manifestly imprac- 
 ticable for the purchaser to administer an estate, to 
 insist on displacing the judgment of a trustee in 
 making an investment left to the trustee's discre- 
 tion, or to demand that he shall have the receipt 
 of a person not yet born, or by law incapacitated 
 from making any binding engagem^ent ; and in such 
 cases, therefore, the receipt of the trustee alone 
 must be a dischai^ge.^ The practical inconveniences 
 of this doctrine are admitted, and in some states it 
 is abrogated by statute, as in Indiana and Kansas.^ 
 In Kentucky, the obligation does not exist, unless 
 expressly required by the conveyance or devise.' 
 In those states where the ordinary rule of equity 
 prevails, its effect is often obviated by an express 
 clause in the deed of trust, exempting the purchaser 
 from the responsibility of seeing to the application 
 of the fund. 
 
 Sec. 58. Where rents are reserved, a statement 
 
 1 Elliot V. Merryman, 1 White & Tudor's L. C. 74-120; 
 Adam's Equity, 156; [2 Sugden V. 363nj 2 Story's Eq. Juris., 
 sec. 1135;] Boos v. Ewing, 17 Ohio, 500. 
 
 =i[Ind. R. S. 1881, sec. 2977; Kans. Comp. L. 1881, p. 990; 
 see, also, Ala. Code, 1876, sec. 2197; Mich. Comp. L. 1871, p. 
 1333, sec. 22 ; N. Y. R. S., vol. 3, p. 2183, sec. 66.] 
 
 ' [Ky. Gen. Stat. 1881, p. 837, sec. 23.] 
 
SBAKCH FOR DEEDS AND ABSTRACTING THEM. 63 
 
 of the amount and the times of payment should be 
 made in the abstract, and the receipt of the landlord 
 for the last payment of rent should be inquired for. 
 To reservations is applied the ordinary rule, that 
 clauses in the deed subsequent to the granting part, 
 and inconsistent with it, are inoperative. The ease 
 is of too unfrequent occurrence to require notice 
 here. 
 
 Sec. 59. Conditions and limitations in deeds, 
 respect either the title of the property, or the mode 
 of enjoying it. The qualities of estates, and the 
 extent of the owner's right over his possessions, are 
 determined by the law, and it is not competent for 
 the owner to create estates which the law does not 
 allow, nor to impose restraints which the law for- 
 bids. Thus, by law, an estate which is given to a 
 man and his heirs, confers upon the grantee the 
 complete and ultimate ownership, to which the law 
 attaches, as an inseparable incident, the power to 
 alienate it. The creation, by deed, of an estate after 
 the grant of a fee-simple, as well as all attempts to 
 restrain the owner of the fee from disposing of it by 
 his voluntary act, or to exempt it from liability to 
 seizure by creditors for the payment of his debts, is 
 futile. To effect the latter purpose, the legal es- 
 tate is sometimes vested in trustees, with directions 
 to them to pay over the income to the beneficiary, 
 fi'om year to year, notwithstanding any act of in- 
 solvency or bankruptcy committed by him; or, 
 with directions that the property shall not be liable 
 for any debts contracted by him, nor affected by 
 any transfer which he may make. If the terms of 
 
64 SEARCH FOE DEEDS AND ABSTEACTING THEM. 
 
 the trust are such as to make the payment of the 
 income by the trustees to the beneficiary purely 
 discretionary, so that the latter could not sustain a 
 bill in equity to compel the payment to him, such 
 an arrangement might, perhaps, be sustained, on 
 the ground that the creditors can reach only that 
 which the beneficiary might have reached by judi- 
 cial jiroceedings. A gift over, limited in the trust 
 deed, to other persons, in case the beneficiary first 
 named should become bankrupt or insolvent, is 
 valid. ^ A grant to a widow, with a limitation 
 over to another person, in case of her marrying 
 again, is upheld in some states, and treated as in- 
 valid in others.^ 
 
 Sec. 60. The parchaser may, to a certain ex- 
 tent, be restrained in the mode of use and enjoy- 
 ment of the land conveyed to him, without any in- 
 fringement of the rules of law with respect to the 
 creation of estates ; and the obligation to use the 
 laud in the niode prescribed, may be made binding 
 on all succeeding purchasers. Such restraints are 
 made effectual, in the courts of law, by means of 
 covenants " running with the land," to secure the 
 performance of which a condition is inserted in 
 
 the deed, allowing the grantor to enter upon the 
 
 « 
 i[l Perry on Trusts, 3rd eci., sec. 388; 2 Id., seo. 555.] 
 
 "^ Scott V. Tyler, 2 White & Tudors L. C , pt. 1, p. 429, 512; 
 [1 Story's Eq. .Juris., sec. 285n. "The construction of the 
 courts is, of late, certainly favorable to the upholding of gifts 
 to women dependent in any sense upon their living apart from 
 their husbands, or remaining unmarried, treating such condi- 
 tion asvoid." Id., sec. 281 cand )?; 2 Perry on Trusts, seo. 516.] 
 
SEAKCH FOR DEEDS AND ABSTRACTING THEM. 65 
 
 land, in case of a breacTi of the covenant, and ter- 
 minate the estate. The courts of equity, in anal- 
 ogous cases, where there is no remedy at law, afford 
 relief, by compelling the purchaser and subsequent 
 owners, buying with notice of the restraint, specifi- 
 cally to perform the thing contracted for, or to ab- 
 stain from the prohibited use.^ 
 
 Sec. 61. A covenant " running with the land," 
 is an engagement made by the grantee, in a deed 
 conveying land, to do something upon that land, 
 in respect to a thing then in existence there, as part 
 of the thing conveyed. Thus, an engagement by 
 the tenant in the lease to keep the house let to him 
 in repair, runs with the land ; that is, the obligation 
 to perform it becomes binding upon all the succes- 
 sive owners, who may acquire title to the lease 
 through him, during the period of their successive 
 ownership. The reader who examines the terms in 
 which the above doctrine is stated, will correctly 
 infer that an engagement with respect to a thing 
 not in existence on the premises at the time, and 
 engagements to do things upon other premises not 
 embraced in the present deed, may be perfectly good 
 contracts against the man who made them, but will 
 not oblige the successive owners, who acquire his 
 estate, to perform them. Thus, a covenant by the 
 grantee to build a house on the land conveyed, or 
 
 ^Adams' Equity, 152; Tulk v. Moxhay, 11 Beavan, 586; 2 
 Phillips, 774; 1 Hall & Twelb, 105; Cole v. Sims, 5 DeGex, M. 
 & Gor, 8; Ex parte Ralph, 1 De.Gex, 209. 
 6 
 
66 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 to repair an existing house on premises not then 
 conveyed, will not bind the succeeding owners. The 
 responsibility rests with the man who contracted 
 the engagement, and does not extend to those to 
 whom he may sell the land. For the sake of illus- 
 tration, the covenants made by the grantee are 
 stated; but the rule extends also to the covenants 
 made by the grantor, which, but for this rule, 
 would be deprived of nearly all their value. By 
 its operation, the benefits of the grantor's covenant 
 for quiet enjoyment, for indemnity against incum- 
 brance, for further assurance, for warranty, and 
 the like, extend not merely to the grantee himself, 
 with whom they were made, but to all the suc- 
 ceeding owners who may derive their titles from 
 or under him."^ 
 
 Sec. 62. The restraint by means of covenants 
 running with the land, where the burden of per- 
 formance follows the ownership, is not confined to 
 leasehold estates, but extends to estates in fee, and 
 all lesser estates. With reference to estates in fee, 
 a common restraint in modern times is against the 
 erection of buildings, either generally, or of a cer- 
 tain height or kind, or against the carrying on of of- 
 fensive trades. Such restraints are legal.^ 
 
 Sec. 63. Such restraints are sometimes accom- 
 panied by a provision that the act prohibited may 
 
 'Spencer's case, 1 Smith's L. C. 137; [2 SugdeuV. 237; 
 Williams on Real Property, 397 ] 
 «[2Sugden V. 26C.] 
 
SEARCH FOE DEEDS AND ABSTRACTING THEM. 67 
 
 not be done without the license of the grantor, 
 either verbally given or indorsed on the lease or 
 deed. It has been already stated in section 28, 
 that one act of dispensation with a condition de- 
 stroys the future efi'ect of the condition. This re- 
 sult can be obviated only by the grantor's insisting 
 on, and obtaining from, the grantee, a new condi- 
 tion restraining him for the future. 
 
 Sec. 64. If the grantor, or his heir, enters for 
 breach of condition, and terminates the estate of the 
 grantee, all conveyances and incumbrances made 
 subsequent to the deed containing the condition 
 are, so'far as they affect the premises, thereby de- 
 stroyed. The rights of the grantee, and of his 
 grantees and mortgagees, in the premises, are as if 
 they had never existed.' 
 
 Sec. 65. It has been stated, that, to make cove- 
 nants binding on the successive owners, it is es- 
 sential at law that the thing to be done shall be 
 done upon the land conveyed, and not elsewhere. 
 This requirement has necessitated a resort to the 
 coui'ts of equity, in cases where agreements have 
 been made, upon a sale of land, for the performance 
 of future acts by the buyer, upon other and ad- 
 jacent property, as a part of the consideration of 
 the purchase, and he has sold the land, with notice 
 to. the new purchaser of the engagement. Thus, 
 where an owner of land in a city laid out part of 
 
 iCi-abbon Eeal Prop., sec. 2195; 2 Piatt on Leases, 317; [2 
 Wash. R. P. 12, 13.] 
 
68 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 it into lots, and made a public square adjacent to 
 the lots of the residue, and bound all the purchas- 
 ers of the lots to keep the public square in repair, 
 equity compelled the succeeding owners, who had 
 bought lots with notice of the contract, to perform 
 it, though, from what has been said in section 61, 
 it is plain that no remedy existed at law. In like 
 manner, if the owner of adjacent property has 
 bound himself by contract for valuable considera- 
 tion, not to use his premises so as to annoy the 
 person with whom he contracted, equity will com- 
 pel him specifically to perform it. Thus, if I con- 
 tribute to the purchase of a bell for a neighboring 
 church, upon an engagement that it shall not be 
 rung in the mornings before six o'clock, the court 
 will enjoin the ringing of it before that hour.^ 
 
 Sec. 66. There are certain covenants which it 
 was the practice of the English conveyancers to in- 
 sert in deeds, and which, from that circumstance, 
 are known as the usual covenants. As the deed 
 of bargain and sale is almost the only English deed 
 followed in these states, it will be sufficient to no- 
 tice the covenants usually inserted in it. Where 
 the purchaserfinds unusual covenants or conditions 
 in the preceding deeds, his counsel will take care 
 that unusual precautions be exercised in framing 
 the deed so as to protect him from injury. The 
 usual covenants are, that the seller is seized in fee 
 simple, that he has good right to convey the lands, 
 
 ^Case.s cited under section 60; Martin d. Nutkin, 2 Peere 
 Williams, 266. 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. 69 
 
 that they shall he quietly enjoyed hy the purchaser, 
 and that the seller will warrant the title.^ 
 
 The claim to damages for a breach of any of the 
 covenants relating to land, actually committed, is 
 not transmissible with the land, but is a mere per- 
 sonal right of the person who was owner at the 
 time of the breach ; a right, which, on the sale of 
 the land, remains still in him, and, on his death, 
 goes to his administrator as a part of his persona] 
 estate.^ 
 
 Sec. 67. The covenant of seizin was originally 
 intended to guard the purchaser against the risks 
 of the seller being, out of possession of the land con- 
 veyed, a circumstance, which, under the statute 
 against the granting of pretended titles, rendered 
 the deed void. This statute has been re-enacted in 
 Kentucky and Indiana f but is not in force in Ohio, 
 Illinois, Iowa, or Kansas."* It amounted to an en- 
 gagement that the grantor was in possession, and 
 not that he was rightfully in possession. Under the 
 statute of Anne, as stated in section 50, the words 
 "bargain," "sell," or "convey," were converted 
 into an implied covenant of lawful seizin in fee 
 simple.' 
 
 1 [Williams on R. P. 191 ; 3 Wash. R. P. 447.] 
 
 '^ [Tapscott w. Williams, 10 Ohio, 444.] 
 
 ^ [Ky. Gen. Stat., p. 180, sec. 2; Ind. part of common law, 
 Fite V. Doe, 1 Blackf. 127; so, in N. Y. R. S., vol. 3, p. 2516, 
 sec, 6; Tenn. Stat. 1871, sees. 1776, 1777,] 
 
 *[Hall V. Ashby, 9 Ohio, 96; Ills. Stat. 1880, p. 307, sec 4; la." 
 Stat. 1880, sec. 1932; Kans. Comp. L. 1881, p, 211, sec. 6.] 
 
 ' [The covenant of seizin is held to run with the land in In- 
 diana, Iowa, Ohio, and Wisconsin. Martin v. Baker, 5, Blackf. 
 
70 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 Sec. 68. The covenant of good right to convey 
 originated in England, in cases where the grantor, 
 having himself no estate, but merely a power to 
 convey, under the statute of uses, which could be 
 eft'ectually exercised only npon compliance with the 
 terms of the power, desired to assure the grantee 
 that the deed was made in the form, and under the 
 circumstance, requisite to its validity. Its insertion 
 in modern deeds is due rather to habit than to its 
 practical value. 
 
 Sec 69. The covenant for quiet enjoyment is 
 an engagement on the part of the seller that the 
 buyer shall not be lawfully' disturbed in the enjoy- 
 ment of the premises. It is not intended as a pro- 
 tection against vexatious litigation or lawless vio- 
 lence. In some states, as already mentioned, the 
 covenant is implied from the words, " grant, bar- 
 gain, or sell." 
 
 Sec. 70. a. Immediately following the covenant 
 for quiet enjoyment, in English conveyances, came 
 the covenant against incumbrances. The connec- 
 tion led to a mistake, which has, in some cases, 
 completely altered the effect of the covenant. The 
 grantor covenanted that the grantee should quietly 
 enjoy the premises, " and thai free and clear of all 
 incumbrances." The conveyancer, supposing the 
 
 232 ; Knadler v. Sharp, 36 la. 322; Mecklem v. Blake, 22 Wis. 
 49.5. In Ohio, it is held that the covenant of seizin, when 
 the covenantor is in possession and claiming title, runs with 
 the land, but not otherwise. Backus v. McCoy, 3 Ohio, 211.] 
 
SEARCH FOR DEEDS AND ABSTEACTIXG THEM. 71 
 
 word " that," which is a relative pronoun referring 
 to the preceding covenant for quiet enjoyment, to 
 be an adjective, supplied the imaginary ellipsis 
 with the words, " the premises," making the cove- 
 nant an engagement that the premises were free 
 and clear, instead of an engagement, as was in- 
 tended, that the grantor would indemnify .the 
 grantee against any incumbrance that might there- 
 after be enforced against the premises. The mis- 
 take is an unfortunate one ; for it is evident that a 
 covenant that there are no incumbrances is broken 
 by the existence of an incumbrance at the time it is 
 made, and that, therefore, the benefit of it is con- 
 fined to the person with whom it is made ; whereas, 
 in its proper form, it runs with the land, and inures 
 to the benefit of all the successive owners, until the 
 incumbrance is actually enforced against oue of 
 them.^ 
 
 Sec. 70. b. The covenant of warranty is either 
 special, assuring the purchaser against the conse- 
 quences of any acts theretofore done by the seller to 
 defeat or incumber the title now granted ; or gen- 
 eral, against the acts of all persons whomsoever. 
 In Pennsylvania,^ a couti'act to give a warranty 
 
 'The American doctrine is, that a covenant against incum- 
 brances does not run with the land. But in the following cases, 
 such a covenant is held to run with the land ; Hall v. Plaine, 14 
 OhioSt.4I7; Foote!;. Burnet, 10 Ohio, 333, 334; Martin?). Baker, 
 5 Blackf. (Ind.), 232; Sohofieldu. Iowa Homestead Co., 32 Iowa, 
 317; Rawle on Covenants for Title [4th ed., pp. 89, 333, 334]. 
 
 ^[Gratz V. Ewalt, 2 Binn. 95; Knepper u. Kurtz, 58 Penn. 
 St. 480.1 
 
72 SEARCH FOR DEEDS AND ABSTRACTINa THEM. 
 
 deed implies the former ; and since all titles are re- 
 quired to be recorded, and all secret conveyances 
 are invalidated, as against bona fide purchasers for 
 value, it must be conceded that, in the United 
 States, a special warranty is all that the buyer 
 ought to expect. It is supposed, however, that, in 
 the western states, the law is otherwise, and that 
 an agreement to give a warranty deed means a 
 warranty against the acts of all persons whomso- 
 ever. In some of the states, an abbreviated form 
 of warranty is prescribed by statute. Thus, in 
 Kentucky, "he will warrant," or, "he conveys 
 with warranty," implies a covenant of general war- 
 ranty ; and the expression, " he will warrant spe- 
 cially," or, " he conveys with special warranty," 
 amounts to a covenant of special warranty.^ In 
 Iowa, the words, " I warrant the title against all 
 persons w^iomsoever," or in other words, as the 
 parties may desire, are sufBcient.^ In Indiana, the 
 words, " warrants to (C. D.)," amount to covenants 
 of seizin, title for quiet possession, against incum- 
 brances, and genera] warranty.' 
 
 Sec. 71. In transferring estates dependent on 
 the performance of conditions, or liable to forfeit- 
 ure for non-payment of rent, the seller usually 
 
 ' [Ky. Gen. Stat. 1881, p. 2o5, sees. 5^7.] 
 
 '[la. Stat. 1880, sec. 1970.] 
 
 '[Ind, li. S. 1881, sec. 2927, and Wis. R. S. 1878, sec. 2208. 
 In Xew York and Minnesota, there are no implied covenants 
 in a conveyance of land. N. Y. R. S., vol. 3, p. 2195, sec. 140; 
 ■Min. R. S. 1878, p. 535, sec. 6,] 
 
SEARCH FOB DEEDS AND ABSTRACTING THEM. 73 
 
 covenants with the new huyer that the conditions 
 have been duly performed, and the rents regularly 
 paid. In these and like cases, where the particular 
 form of expression may determine the extent of 
 the engagement, the covenant should be fully 
 stated in the abstract 
 
 Sec. 72. The importance of stating in the ab- 
 stract the recitals in deeds, arises from the circum- 
 stance that they are always notice to the purchaser 
 of the facts recited, and of everything to which, if 
 followed up by reasonable inquiry, they will natu- 
 rally lead ; and they may operate by way of estop- 
 pel, so as to prevent the party making them from 
 controverting tlieir truth. Their operation, in the 
 way of notice, is illustrated by the case mentioned 
 iu section 38, vehere the fact that the patent recited 
 an assignment by the administrator of the enterer 
 of the land, was held to put the buyer on inquiry 
 for the authority of the administrator to make the 
 assignment, he having by law prima facie no such 
 authority. If he had made the proper inquiry, by 
 searching the records, he would have found that 
 there was no authority. The recital was, there- 
 fore, notice that he had no authority. There are 
 three conditions necessary to make a recital oper- 
 ate as an estoppel, precluding the covenantor from, 
 controverting the truth of it ; first, a statement in 
 the deed of a matter of fact, material to the validity 
 of the title, or, which affects the nature and extent 
 of the interest conveyed by the deed ; second, an 
 7 
 
74 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 agreement, expressly made or necessarily implied 
 from the context, that the fact exists as it is stated; 
 and, third, that the qnestion whether the fact is as 
 is recited, should arise in a contest between the 
 parties to the instrument, or those claiming under 
 them, wherein the covenantor attempts to impair 
 the interests conveyed, by showing that the fact 
 which he recited in the deed is incorrectly stated. 
 Whatever the truth may be, such evidence is re- 
 jected, on the ground that it is against conscience 
 for a man to retract a statement, deliberately 
 made with a view for his advantage, to induce 
 another man to change his position, and who, iu 
 reliance on the stateyient, has changed his position 
 accordingly.^ 
 
 Sec. 73. The testimonium clause includes the 
 signing, the sealing, and the attestation of wit- 
 nesses; and as these are particulars upon which the 
 legal validity of the instrument depends, they de- 
 mand special attention. The signature of a private 
 person should bo Avith his first christian name in full, 
 instead of an initial. This may save the trouble of 
 identifying him by external evidence. The omis- 
 sion of, or a mistai^e in, the middle name is unim- 
 portant, unless it is, in fact, the name by which he 
 is chiefly known. The total omission of a christian 
 name, the surname alone being inserted in the 
 
 ^Best stated in Taylor on Evidence, 101; 1 Greenleaf on 
 Ev., sec. 22; [2 Smith's L. C, 6th Am. ed., pp. 655, 673.] 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. 75 
 
 deed, has been held to invalidate the instrument 
 on the ground of its uncertainty.' "Where the in- 
 strument is executed under the authority of a 
 power of attorney, the signature should be in the 
 name of the principal, " by A. B., his attorney in 
 fact." A mistake, however, in this particular, in 
 Ohio, in deeds, will not invalidate the instrument, 
 if the fact of agency and the name of the principal 
 appear from other parts of the writing.^ The deed 
 of a corporation, of whatever kind, must be signed 
 in the corporate name, " by A. B., president," 
 or other officer designated by law for that pur- 
 pose. 
 
 Sec. 74. In Ohio, a private seal is not necessary 
 to the validity of a deed.^ In Indiana, the defect 
 of a want of seal in deeds prior to August 17th, 
 1855, was cured by statute; and the act of August 
 6th, 1859, dispensed with private seals, whether 
 scroll or other seals, altogether.* In Kentucky, Iowa, 
 and Kansas, private seals have been abolished.^ In 
 
 ' Bacon's Abr. Misnomer ; Smith on R. & P. P. 
 
 ^[R.S., sec. 4110.] 
 
 ' [Private seals are now abolished ; 80 Ohio Laws, But 
 previous to March 29, 1 883, a wafer or scroll was treated as 
 a seal, which was required. OhioE. S. 1881, sees. 4and410C.] 
 
 *[Ind. R. S. 1881, sec. 2999.] 
 
 «[Ky. Gen. Stat. 1880, p. 249, sec. 2; la. Stat. 1880, sec. 
 2112; Kans. Comp. L. 1881, p. 209, sec. 6; and, also. Neb. 
 Comp. Stat., p. 489, sec. 1; Tenn, Stat. 1871, sec. 1804; Ala. 
 Code, 1876, sees. 2194, 2948.] 
 
76 SEAECII FOE DEEDS AND ABSTEA0TIN6 THEM. 
 
 Illinois, a scroll is sufficient.^ In Pennsylvania, a 
 written or ink seal is good.^ 
 
 Sec. 75. If, on the production of the original 
 deed, there appear alterations, erasures, or inter- 
 lineations, not noted in the attestation clause, the 
 deed will not be admitted in evidence until they 
 are satisfactorily accounted for. They cast a sus- 
 picion on the deed, which the owner is bound to ' 
 clear up.^ After a deed has been delivered, it is 
 not competent for the grantee to add a word to it, 
 and the better opinion is, that not even the grantor 
 himself can fill a blank, without re-executing the 
 deed.^ Upon the question whether, if a deed, exe- 
 cuted in blank, be afterward fraudulently filled up, 
 in perversion of the intended use, and in that shape 
 delivered to a person taking it bona fide for value, 
 the grantors are bound by it, it was held in Ohio, 
 that, though the deed, as a deed, was invalid, the 
 grantor who had committed the fraud was es- 
 topped to deny its validity; but that the rights of 
 
 ' [Ills. Stat. 1S80, p. 303, sec. ] ; and, also, Ga, Code, 1873, 
 sec. 5; Mich. Comp. Law, 1871, p. 1348, sec. 39, and p. 1708, 
 sec. 80; Minn. R. S. 1878, p. 538, sec. 31 ; Wis. E. S. 1878, see. 
 21215.] 
 
 2 1 Dallas, 63. 
 
 " 1 Greenleaf Ev., sec. 564. 
 
 *Moore v. Biokham, 4 Binney, 1; 9 Cranch, 28; 11 Ad. & 
 Eliis, 31 ; 6 Exch. 200, 216; 9 Cowen, 255; Hatch v. Searles, 2 
 Smales & Gifiord, 147; 1 Gi-eenleaf Ev., sec. 568. [" The rule 
 may be taken to be, that a material alteration by a party of 
 itself avoids the deed as to him; but an immaterial alteration 
 does not, unlessit is fraudulent." 1 Smith's L. C, pt. 2, p. 1285.] 
 
SEARCH FOR DEEDS AND ABSTRACTING THEM. 77 
 
 his wife, -who was innocent of the fraud, were not 
 affected by it.' 
 
 Sec. 76. The proper form of the attestation of 
 the witnesses is " signed, sealed, and delivered, in 
 our presence." These are the three facts, which, if 
 it is necessary to prove the due execution of the 
 deed, the subscribing witnesses will be i"equired to 
 prove. The words " executed in our presence," are 
 not, therefore, strictly proper, since they state 
 I'ather a matter of law, deducible from the " sign- 
 ing, sealing, and delivery," than the necessary facts. 
 There is, in Ohio, a dictum that " executed in our 
 presence" is a sufficient attestation; and it has 
 been decided in that state, under the statute, that 
 "sealed and delivered in presence of" is a good 
 attestation.^ In that state, the attestation of the 
 witnesses is not required to the delivery, but only 
 to the signing and sealing.* A deed can not be in- 
 validated by showing that one of the subscribing 
 witnesses was incompetent to testify.* By the law 
 of Ohio, the attestation of two witnesses is in- 
 dispensable to the validity of all deeds, mort- 
 gages, and leases for a longer period than three 
 years.^ In Pennsylvania, Kentucky, and Ala- 
 
 ^ Conover v. Porter, 14 Ohio St. 450. 
 
 ^[Fosdick, Lessee, v. Risk, 15 Ohio, 84; Williams v. Robson, 
 6 Ohio St, 510,] 
 
 *[Ohio R. S. 1880, sec. 4106, The attestation is now only 
 required to the signing, 80 0, L. 80.] 
 
 * [Doe V. Turner, 7 Ohio, pt. 2, 216.] 
 
 5 [Ohio E. S. 1880, sec, 4106, 80 0. L. 80.] 
 
78 SEARCH FOR DEEDS AND ABSTRACTING THEM. 
 
 bama/ the attestation of witnesses is not necessary 
 to the validity of a deed, as between the parties. 
 
 Sec. 77. By the rules of equity, the acceptance 
 of a trust may be proved by the conduct of the 
 trustee ; but in all well considered deeds creating 
 trusts, his acceptance is expressed upon the deed 
 itself. The abstract should, therefore, note the 
 pr.esence or absence of an express acceptance of the 
 trust, and the date of the acceptance. 
 
 Sec. 78. The unconscientious advantages which 
 have been taken of formal defects in the acknowl- 
 edgment of deeds, have led the legislatures of 
 many of the states to reduce the terms of the ac- 
 knowledgment to the fewest possible words, and 
 many curative acts have been passed to remedy de- 
 fects in past acknowledgments. Our limits do not 
 allow us to do more than to mention the fact, and 
 refer to the statutes for the details. The present 
 law of the several states will be stated in the next 
 chapter. 
 
 1 [Long V. Eamsey, 1 Serg. & R. 73. In Kentucky, it is, 
 nevertheless, valid as between the parties. Fitzhugh v. Cro- 
 ghan, 2 J. J. Marsh. 429. In Michigan, it is held that the ti- 
 tle may pass without attestation or acknowledgment. Price 
 V. Ilaynes, 37 Mich, 487. In Alabama, a certificate of acknowl- 
 edgment is sufficient, in the absence of attestation. Sharpe 
 V. Orme, 61 Ala. 263. In New York, a deed not acknowledged 
 previous to delivery must be attested by at least one witness, or 
 it will hot be viilid as against a purchaser until acknowledged. 
 Genter v. Morrison, 31 Barb. 155.] 
 
ACKNOWLEDGMENT OK PROOF OF EXECUTION. 79 
 
 CHAPTEE V. 
 
 THE ACKNOWLEDGMENT OR PROOF OF EXECUTION OF 
 DEEDS. 
 
 79, Alabama.— 80. Colorado.— 81. Georgia.— 82. Illinois.— 83. 
 Indiana. — 84. Iowa. — 85. Kansas. — 86. Kentucky. — 87. 
 Michigan. — 88. Minnesota. — 89. Nebraska. — 90. New York. 
 — 91. Ohio. — 92. Pennsylvania. — 93. Tennessee. — 94. Wis- 
 consin. — 95. Memorandum of defects. — 96. Deed of woman 
 about to be married. — 97. Powers of attorney to convey. — 
 98. Deeds made by and to aliens 
 
 [Section 79. In Alabama, acknowledgments of 
 deeds executed in the state may be taken by judges 
 of the supreme and circuit courts, and their clerks, 
 chancellors, registers in chancery, judges of the 
 courts of probate, justices of the peace, and nota- 
 ries public. Deeds executed out of the state, and 
 within the United States, may be acknowledged 
 by the judges and clerks of any Federal court, judges 
 of any court of record in any state, notaries public, 
 or commissioners appointed by the governor of the 
 state. Deeds executed out of the United States 
 may be acknowledged by a judge of any court of 
 record, or chief magistrate of any city, town, bor- 
 ough, or county, notaries public, or any diplomatic, 
 consular, or commercial, agent of the United States.^ 
 A deed must be either attested by witnesses or ac- 
 
 PAla Code, 1876, sees. 2155, 2156.] 
 
80 ACKNOWLEDGMENT OR PROOI* OF EXECUTION. 
 
 knowledged. An acknowledgment dispenses with 
 the necessity of an attestation.^ It mnst he at- 
 tested hy at least one witness where the grantor 
 writes his own name, and two where he can not 
 write.^ In the case of a conveyance of the home- 
 stead, a separate examination of the wife is re- 
 quired.^] 
 
 [Sec 80. In Colorado, deeds executed within 
 the state may be acknowledged before a justice of 
 the supreme or district courts, before any clerk of 
 such courts, or his deputy ; the county judge of any 
 county, such county judge and clerks certifying 
 such acknowledgment under the seal of the court; 
 before the clerk and recorder of any county, or his 
 deputy, he certifying the same, or his deputy, un- 
 der the seal of such county ; before any notary 
 public; or, before any justice of the peace within 
 his county; but if the deed be for the conveyance 
 of laud situated beyond the county of such justice, 
 there shall be affixed to his certificate of acknowl- 
 edgment a certificate of the clerk of the proper 
 court, under his hand and the seal of such county, 
 to the official capacity of such justice of the peace, 
 and that the signature to such certificate of ac- 
 knowledgment is genuine. 
 
 -Deeds executed out of the state, and within the 
 United States, o-r any territory thereof, ma)' be ac- 
 knowledged before the secretary of any such state 
 
 i[Ala. Code, ]876, sec. 2146; Sharps v. Orme, 61 Ala. 263.] 
 2 [Id., sees'. 2145,2146.] 
 '[Id., see. 2822,] 
 
ACKNOWLEDGMENT OR PROOF OF EXECUTION. 81 
 
 or territory ; clerk of any court of record of the 
 state cr territor}', or of the United States within 
 such state or territory, having a seal, such cleric 
 certifying the acknowledgment under the seal of 
 the court ; before any other officer authorized by 
 the laws of such foreign state or territory to take 
 and certify acknowledgments, provided there shall 
 be affixed to the certificate of such officer a certifi- 
 cate by the clerk of some court of record of the 
 county, city, or district, wherein such officer re- 
 sides, under the seal of the court, that the person 
 certifying the acknowledgment is the officer he as- 
 sumes to be; that he has authority by the laws of 
 such state or territory to take and certify such ac- 
 knowledgment, and that the signature of the officer 
 to the certificate of acknowledgment is genuine; 
 before any commissioner of deeds for such foreign 
 state or territory, appointed under the laws of Col- 
 orado, the commissioner certifying such acknowl- 
 edgnrent under his hand and official seal. 
 
 Deeds executed out of the United States may be 
 acknowledged before any court of record of any 
 foreign republic, kingdom, empii'e, state, principal- 
 ity, or province, having a seal, the acknowledgment 
 being certified by the judge or justice of such court 
 to have been made before such court, and the cer- 
 tificate attested by the seal of the court; before the 
 mayor or other chief officer of any city or town 
 having a seal, and such mayor or officer certifying 
 the same under such seal ; before any consul of 
 the United States within such foreign country. 
 
82 ACKNOWLEDGMENT OK PROOF OF EXECUTION. 
 
 he certifying the same under the seal of his con- 
 sulate.^ 
 
 Persons making an acknowledgment of a deed 
 must be personally' known to the officer before 
 whom the acknowledgment is made (or proved to 
 be such by the oath of some credible witness), and 
 the officer shall so certify.^ 
 
 In the mortgage of a homestead, the deed 
 must be signed, as well as acknowledged, by the 
 wife, separate and apart from the husband.^] 
 
 [Sec. 81. In Georgia, deeds executed within the 
 state may be acknowledged before a notary public, 
 justice of the peace, a judge or clerk of the su- 
 preme or ordinary court of record, or clerk of the 
 superior court. 
 
 Without the state, deeds may be acknowledged 
 before a commissioner of deeds for the State of 
 Georgia, a judge of a court of record, the clerk of 
 the court certifying the genuineness of the signature. 
 
 In foreign countries, deeds maybe acknowledged 
 before a commissioner of deeds for Georgia, a con- 
 sul or vice-consul of the United States.*] 
 
 [Sec 82. In Illinois, deeds executed within the 
 state may be acknowledged before a master in 
 chancery, notary public. United States commis- 
 sioner, circuit or county clei'k, justice of the peace, 
 
 1 [Col. Gen. Laws, 1877, p. 136, sec. 172. By Act Feb. 0, 1879, 
 L. 1879, p. 5, clerks of the circuit and district courts of the U. 
 S. or their deputies, may acknowledge deeds.] 
 
 2 [Id., p. 137, sec. 173,] »[Id., oh. 46, sec. 6.] 
 
 *[Ga. Code, 1873, sec. 2706.] 
 
ACKNOWLEDGMENT OR PROOF OP EXECUTION. 83 
 
 or any court of record having a seal, or any judge, 
 justice, or clerk of any such court. When taken 
 before a notary public or United States commis- 
 sioner, the same must be attested by his oiEcial 
 seal. When taken before a court or clerk thereof, 
 by the seal of such court. When taken before a 
 justice of the peace, there must be added the cer- 
 tificate of the county clerk, under his seal of office, 
 that the person taking such acknowledgment was 
 a justice of the peace in said county at the time 
 of taking the same. If the justice of the peace 
 resides in the county where the lands mentioned 
 in the certificate are situated, no such certificate is 
 required. 
 
 Deeds executed without the state may be ac- 
 knowledged before a justice of the peace, notary 
 public, United States commissioner, commissioner 
 to take acknowledgments of deeds, mayor of a 
 city, clerk of a county, or before any judge, jus- 
 tice, or clerk of the supreme or any circuit or dis- 
 trict court of the United States, or any judge, 
 justice, or clerk of the supreme, circuit, superior, 
 district, county, or common pleas court of any of 
 the United States or their territories. When 
 taken before a justice of the peace, there must be 
 added a certificate of the proper clerk, under the 
 seal of his office, stating that the person before 
 whom the acknowledgment was made was a justice 
 of the peace at the time of making the same. 
 Acknowledgments may also be made in conformity 
 with the laws of the state, territory, or district 
 where they are taken. But there must be a cer- 
 
84 ACKNOWLEDGMENT OR PROOF OF EXECUTION. 
 
 tificate of the clerk of a court of record withiu 
 such state, territorj^ or district attached, that the 
 deed is executed and acknowledged according to 
 the laws of such state, territory, or district, or it 
 shall so appear by the laws of such state, etc. 
 
 Acknowledgments without the United States 
 may be made before any court of any republic, 
 state, kingdom, or empire having a seal, or any 
 mayor or cliicf officer of any city or town having 
 a seal, or before any minister or secretary of lega- 
 tion or consul of the United States in any foreign 
 country, attested by his official seal, or before any 
 officer authorized by the laws of such foreign 
 country to take acknowledgments ; if he have a 
 seal, such deed must be attested by the official seal 
 of such court or officer. And, in case such ac- 
 knowledgment is taken before other than a court 
 of record or mayor or chief officer of a town hav- 
 ing a seal, proof that the officer taking such ac- 
 knowledgment was duly authorized by the laws of 
 his country so to do must accompany the certificate 
 of acknowledgment.* 
 
 Where the deed is proved before a justice of the 
 peace out of his county, the omission of the cer- 
 tificate of the clerk of the court that he was a jus- 
 tice of the peace at the time of taking the ac- 
 knowledgment will not prevent the record of the 
 instrument from being notice.^ 
 
 Deeds, though not acknowledged, are deemed, 
 
 '[Tils. R. S. 1880, p. 311, spc. 20.] 
 ^[Ills. R S.,p. 313, sec. 21.] 
 
ACKNOWLEDGMENT OR PROOF OF EXECUTION. 85 
 
 from the time of being filed for record, notice to 
 subsequent purchasers and creditors, but can not 
 be read in evidence unless their execution be 
 proved in the manner required by the rules of 
 evidence applicable to such writings.' 
 
 If the grantor has not acknowledged the deed, 
 it may be proved by the testimony of the sub- 
 scribing witnesses; and, if the subscribing wit- 
 nesses are dead, or not to be had, it may be 
 proved by evidence of the hand-writing of the 
 grantor, or at least one of the subscribing wit- 
 nesses ; which evidence shall consist of the testi- 
 mony of two or more disinterested persons swear- 
 ing to each signature.^ A certificate of acknowl- 
 edgment of a commissioner which does not show 
 the venue where it was taken is held insufficient.* 
 The defect, however, is cured by the certificate of 
 the county clerk as to his ofiicial character.*] 
 
 Sec. 83. In Indiana-, an acknowledgment is re- 
 quired to admit a deed to record.^ The act, which 
 took eflect August 9th, 1858, makes the following 
 form sufficient : 
 
 Before me, C. F. (a judge or justice, as the case 
 
 may be), this day of , A. B. acknowledged 
 
 the execution of the annexed deed (or, mortgage, 
 
 i[Ills. R. S., p, 316, sec. 31. J 
 =i [Ills. R. S., p. 314, sec. 25.] 
 " [Hardin u. Kirk, 49 Ills, 153.] 
 
 * [Hardin v. Osborne, 00 Ills. 93 ; Martindale Law of Convey- 
 ancing, sec. 257.] 
 6[Ind. R. S. 1881, sec. 2983.] 
 
8G ACKNOWLEDGMENT OR PROOF OF EXECUTION. 
 
 as the case may be).* Married women acknowledge 
 in the same form ■? but, if a married woman is be- 
 tween eighteen and twenty-one years of age, and 
 unites with her husband in a sale of his lands, her 
 father, or, if he is dead, her mother, must declare 
 before the officer that he or she believes the sale is 
 for the benefit of the wife [and that it would be 
 prejudicial to her and her husband to be prevented 
 from disposing of the lands thus conveyed, which 
 declaration, with the name of such father and 
 mother, shall be inserted as a part of the certificate 
 of the officer taking such acknowledgment].* If 
 the deed is acknowledged out of the county in 
 which the land lies, before an officer who has no 
 official seal, it must be accompanied with a certifi- 
 cate of the clerk of the circuit court of the county, 
 and attested by the seal of said court.* Deeds, etc., 
 acknowledged out of the state, and in the United 
 States, must either be acknowledged before an of- 
 ficer having a seal, and attested by his official seal, 
 or must be certified by the clerk of any court of 
 record of the county in which the officer receiving 
 the acknowledgment resides, and attested by the 
 seal of the court.^ Acknowledgments made in for- 
 eign countries require no certificate, except the of- 
 ficial seal of the officer taking the acknowledg- 
 
 i[Ind. R. S„seo. 2947.] 
 ^ [Id., sec. 293S,] 
 ^ [Id., sec. 2939.] 
 ■'[Id., sec. 2934,] 
 li [Id., sec. 2935.] 
 
ACKNOWLEDGMENT OR PKOOE OF EXECUTION. 87 
 
 ment.' The acknowledgment of a wife is made in 
 the same manner as though she were unmarried.^ 
 An acknowledgment may be made before a notary 
 public, a judge or clerk of a court of record, au- 
 ditor, recorder, mayor of a city, justice of the 
 peace, a commissioner of Indiana, a foreign minis- 
 ter. United States consul, or charge d'affaires ' 
 
 Sec. 84. In Iowa, no instrument affecting real 
 property can be lawfully recorded, unless it has 
 been previously acknowledged or proved.* 
 
 Acknowledgments may be made before spme 
 court having a seal, or some judge or clerk thereof, 
 or some justice of the peace or notary public.^ 
 
 Deeds executed out of the state, and within the 
 United States, may be acknowledged before some 
 court of record, or officer holding the seal thereof, 
 or some commissioner of deeds for Iowa, or some 
 notary public or justice of the peace; and, when 
 made by a justice of the peace, a certificate under 
 the official seal of the proper authority of the of- 
 ficial character of the justice, and of his authority 
 to take such acknowledgments, and of the genuine- 
 ness of his signature, must accompany the certifi- 
 cate.^ Deeds executed out of the United States 
 may be acknowledged before any embassador, 
 
 i[Ind. R. S., sec. 2937.] 
 
 2 [Id., sec. 2938.] 
 
 '[Id., sec. 2933.] 
 
 *[Iowa Stat. 1880, sec. 1942.] 
 
 6 [Id, sec, 1955,] 
 
 «[Id,, sec. 1956.] 
 
88 ACKNOWLEDGMENT OR PEOOF OP EXECUTION. 
 
 minister, secretary of legation, consul, charge d'af- 
 faires, consular agent, or any other officer of the 
 United States in a foreign country, who is author- 
 ized to issue certificates under the seal of the 
 United States. They may also be acknowledged 
 before any officer authorized by the laws of the 
 foi'cign country to certify to the acknowledgments 
 of written documents [but the certificate of ac- 
 knowledgment by a foreign officer must be authen- 
 ticated by one of the above named officers of the 
 United States, whoso official written statement that 
 full faith and credit is due to the certificate of such 
 foreign officer, shall be deemed sufficient evidence 
 of the qualification of said officer to take acknowl- 
 edgments and certify thereto, and of the genuine- 
 ness of signature or seal].^ The court or person 
 taking the acknowledgment must indorse upon 
 the deed a certificate setting forth the following 
 particulars: 1. The title of the court or person be- 
 fore whom the acknowledgment was taken ; 2. 
 That the person making the acknowledgment was 
 personally known to at least one of the judges of 
 the court, or to the officer taking the acknowledg- 
 ment, to be the identical person whose name is af- 
 fixed to the deed as grantor, or that such identity 
 was proved by at least one credible witness (nam- 
 ing him) ; 3. That such person acknowledged the 
 instrument to be his voluntary act and deed.^ 
 The certificate of acknowledgment must show 
 
 "&'■ 
 
 i[Iowa Stat. 1880, sec. 19.57.] 
 ''[Id., sec. 195S.] 
 
ACKNOWLEDGMENT OR PROOF OF EXECUTION. 89 
 
 the county of the notarj' ; otherwise, it has been 
 held to be fatally defective.^ 
 
 [Sec. 85. In Kansas, acknowledgments of deeds 
 executed within the state may be taken before 
 some court having a seal, or some judge, justice, 
 or clerk thereof, or some justice of the peace, no- 
 tary public, county clerk, or register of deeds, or 
 mayor or clerk of an incorporated city.^ 
 
 Acknowledgments out of the state must be made 
 before some court of record, or clerk or oiScer 
 holding the seal thereof, or before some commis- 
 sioner to take the acknowledgment of deeds ap- 
 pointed by the governor of the State of Kansas, 
 or before some notary public, or justice of the 
 peace, or any consul of the United States resident 
 in any foreign country. If taken before a justice 
 of the peace, the acknowledgment must be accom- 
 panied by a certificate of his oificial character, un- 
 der the hand of the clerk of some court of record, to 
 which the seal of said court must be affixed.^ The 
 court or ofiicer taking the ackuowledgment must 
 indorse upon the deed a certificate, showing, in 
 substance, the title of the court or ofiicer before 
 whom the acknowledgment is taken ; that the per- 
 son making the acknowledgment was personally 
 known to the court or the officer taking the acknowl- 
 edgment to be the same person who executed the 
 
 1 [Willard V. Cramer, 36 la. 22.] 
 ^'[Kans. Comp. Laws, 1881, sec. 1032.] 
 '[Id., sec. 1033.] 
 
90 ACKNOWLEDGMENT OK PKOOF OF EXECUTION. 
 
 instrument, and that siicli person duly acknowl- 
 edged the execution of the sarae.^ Deeds, mort- 
 gages, powers of attorney, and other instruments 
 in writing for the conveyance or incumbrance of 
 land situated in the state, executed, acknowledged, 
 or proved, in any other state, or territory, or 
 country, in conformity with the laws thereof, are 
 as valid as though executed in this state.^] 
 
 [Sec. 86. In Kentucky, deeds, mortgages, etc., 
 can not be admitted to record, unless their exe- 
 cution is proved before the clerk of the court of the 
 county, by two subscribing witnesses, or by proof 
 of one subscribing witness, who shall also prove 
 the attestation of the other; or by proof by 
 two witnesses that the subscribing witnesses 
 are both dead, and also like proof of the sig- 
 nature of one of them, and of the grantor; or 
 by like proof that both of the subscribing wit- 
 nesses are out of the state, or that one is absent 
 and the other is dead, and also like proof of the 
 siguature of oue witness and of the grantor, or 
 on a certificate of a clerk of a county court of this 
 state that the same had been acknowledared or 
 proved before him. J The latter is the usual prac- 
 tice.' Whether made by a single person, or by 
 husband and wife, the officer simply certifies that 
 the deed was acknowledged before him, and when 
 it was done. The common form is: 
 
 ' [Kans. Comp. Laws, sec. ]034.] 
 
 2 [Id, sec. 1048.] 
 
 ' [Ky. Gen. Stat. 1881, p. 257, sec. 15.] 
 
ACKNOWLEDGMENT OR PROOF 0¥ EXECUTION. 91 
 
 Commouwealtli of Kentucky, la,, 
 county. j 
 
 I, , Clerk of the county court for the 
 
 county afoi-esaid, do hereby certify that tlie deed 
 
 from to , was presented to 
 
 me in my office by said grantor, and acknowledged 
 
 by , to be voluntai-y act and deed. 
 
 Given under my hand, this day of , in 
 
 the year 18 — . 
 
 , Clerk. 
 
 , D. C. 
 
 Deeds executed out of the state, and within the 
 United States, by persons other than married wo- 
 men, may be admitted to record, when certified 
 under his seal of office by the clerk of a court, 
 mayor of a city, or his deputy, or by a notary pub- 
 lic, or secretary of state, or commissioner of deeds, 
 or by a judge under the seal of his court, to have 
 been acknowledged or proved before him by the 
 two subscribing witnesses, or, in case of their 
 death or absence from the state, by proof by two 
 witnesses of the signature of the grantor and of 
 one of the subscribing witnesses. The names nnd 
 residences of the witnesses so called to prove the 
 signatures of the grantor and of the subscribing 
 Avitucsses, must be stated in the certificate where a 
 deed is proved by persons other than the subscrib- 
 insT witnesses.' If the deed is executed out of 
 the United States, it must be certified by any for- 
 eign minister, or consul, or secretary of legation 
 
 i[Ky. Gen. Stat. 1881, p. 258, sec. 18.] 
 
92 ACKNOWLEDGMENT OR PROOF OF EXECUTION. 
 
 of the United States, or by the secretaiy of for- 
 eign affairs, certified under his seal of office, or 
 the judge of a superior court of the nation where 
 the deed sliall be executed, to have been acknowl- 
 edged or proved before him in the manner pre- 
 scribed by law.^ The form of acknowledgment in 
 cases of deeds executed out of the state by husband 
 and wife, or by the wife alone, or by the Avife after 
 the husband has first conveyed, to pass the wife's 
 lands, is prescribed by statute ; namely, 
 
 Commonwealth (or kingdom). Set. 
 
 Count}' (or Town, or City, or Department, or 
 Parish), of , Set. 
 
 I, A. B. (here give his title), do certify that this 
 instrument of writing, from C. I)., and wife, E. P. 
 (or, from E, E., wife of C. D.), was this day pro- 
 duced to me by the parties [which was acknowl- 
 edged by the said C. D. to be his act and deed], 
 and the contents and effect of the instrument be- 
 ing explained to the said E. F., by me, separately 
 and apart from her husband, she thereupon de- 
 clared that she did freely and voluntarily exe- 
 cute and deliver the same to be her act and deed, 
 and consented that the same might be recorded. 
 
 Given under my hand and seal of office. 
 
 [SEAL.J A. B.2 
 
 JSTon -resident married women may convey by 
 
 ' [Ky. Gen. Stat. 1881, p. 2.57, sec. 17.] 
 ^[Gen: Stat., p. 258, spc. 21.] 
 
ACKNOWLEDGMENT OR PROOF OF EXECUTION. 93 
 
 power of attorney acknowledged in like manner 
 as a deed.^ 
 
 Sec. 87. [In Michigan, deeds executed within the 
 state maybe acknowledged before any judge or 
 commissioner of a court of record, or before any 
 notary public, justice of the peace, or master in 
 chancery within the state, and the officer must in- 
 dorse thereon his certificate of acknowledgment 
 and the ti'ue date of making the same under his 
 hand.^ 
 
 Deeds executed in any other state, territory, or 
 district of the United States, may be executed ac- 
 cording to the la^vs of such state, territory, or dis- 
 trict, and the execution acknowledged before any 
 judge of a court of record, notary public, justice 
 of the peace, master in chancery, or other officer 
 authorized by the laws of such state, territory, or 
 district to take the acknowledgment of deeds, or 
 before any commissioner appointed by the governor 
 of the State of Michigan for that purpose.^ 
 
 In cases provided for in this section (4211), un- 
 less the acknowledgment be taken before a com- 
 missioner appointed by the governor of the State 
 of Michigan, for that purpose, the deed shall have 
 attached thereto a certificate of the clerk or other 
 proper certifying officer of a court of record of 
 the county or district, or of the secretary of state 
 of the state or territory within which the acknowl- 
 
 1 [Gen, Stat., p. 261, sec. 36.] 
 
 2 [Mich. Comp. L. 1871, sec, 4210.] 
 '[Mich. Comp. L., sec. 4211.] 
 
94 ACKNOWLEDGMENT OR PROOF OP EXECUTION. 
 
 ment was taken, under the seal of his office, that 
 the person whose name is subscribed to the cer- 
 tificate was at the date thereof such officer as he 
 is represented to be; that he believes the signa- 
 ture of such person to be genuine, and that the 
 deed is executed and acknowledged according to 
 the laws of such state, territory, or district.^ 
 
 Deeds executed in a foreign country may be 
 executed according to the laws of that country, 
 and acknowledged before any notary public, min- 
 ister plenipotentiary, minister extraordinaiy, min- 
 ister resident, charge d'affaires, commissioner or 
 consul of the United States appointed to reside 
 therein, which acknowledgment must be certified 
 thereon by the officer taking the same, under his 
 hand, and, if taken before a notary public, his seal 
 of office must be affixed to the certificate.^ 
 
 The acknowledgment of married women to any 
 deed or other instrument affecting real property 
 may be taken in the same manner as if she were 
 sole. And acknowledgments of married women 
 to deeds of conveyance taken since August 4th, 
 1875, in the same manner as if sole, are declared 
 valid.'] 
 
 [Sec. 88. In Minnesota, deeds executed within 
 the state may be acknowledged before a notary 
 public, register of deeds, county auditor, justice of 
 
 1 [Mich. Laws 1875, p. 259.] 
 
 2 [Mioh. Comp. L., sec. 4213.] 
 
 ' [Mich. Laws, 1877, p. 50; Id 1875, p. 142,] 
 
ACKNOWLEDGMENT OK PROOF OF EXECUTION. 95 
 
 the peace, court commissioner, judge or clerk of 
 the supreme, district, or probate courts. 
 
 Deeds ex^uted out of the state may be acknowl- 
 edged before the chief justice and associate justices 
 of the Supreme Court of the United- States, the 
 judges of the District Court of the United States, 
 the judges or justices of the supreme, superior, cir- 
 cuit, or other court of record, of any state, terri- 
 tory, or district within the United States, the 
 clerks of the several courts above mentioned, and 
 notaries public, justices of the peace, and commis- 
 sioners appointed by the governor of the State of 
 Minnesota for such purpose ; but no acknowledg- 
 ment taken by any such officer sliall be valid, un- 
 less taken within some place or territory for which 
 he shall have been elected or appointed to such of- 
 fice, or to which the jurisdiction of the court to 
 which he belongs shall extend.' And the officer 
 taking the acknowledgment must indorse upon the 
 deed a certificate of such acknowledgment, and the 
 true date thereof, and must date and sign the cer- 
 tificate.^ In case of acknowledgments taken with- 
 out the state, unless it is taken before a commis- 
 sioner appointed by the governor of the state of 
 Minnesota, or before a notary public, or a clerk of 
 a court, or some other officer having a seal of of- 
 fice, and the certificate of acknowledgment upon 
 such deed, with the officer's seal of office affixed 
 thereto, there shall also be indorsed upon the deed 
 a certificate of the clerk, or other proper officer of 
 
 1 [Minn. R. S. 1878, p. 535, sec. T.] 
 ''[Id., sec. 8.] 
 
96 ACKNOWLEDGMENT OR PROOF 01? EXECUTION. 
 
 a court of record of the county, district, or place 
 within which the acknowledgment was taken, un- 
 der the seal of his office, that the person whose 
 name is subscribed to the certificate of acknowl- 
 edgment was, at the date thereof, such officer as he 
 is therein represented to be, that he is acquainted 
 with the handwriting of such person, and that he 
 veril}' believes the signature to be genuine, provided 
 that the certificate of the secretary of any state or 
 territory, or his deputy, under seal, indorsed on the 
 deed to the effect that any justice of the peace be- 
 fore whom the acknowledgment was taken, purports 
 to have been taken, held, at the date of the ac- 
 knowledgment, his office by appointment of the 
 governor of such state or territory, shall be a suf- 
 ficient authentication.^ 
 
 Deeds executed in a foreign country may be ex- 
 ecuted according to the laws of such country, and 
 acknowledged before any notary public, or before 
 ail}' minister plenipotentiary, minister extraordi- 
 nary, minister resident, charge d'affaires, commis- 
 sioner, or consul of the United States appointed to 
 reside therein, which acknowledgment shall be certi- 
 fied thereon by the officer taking the same, under his 
 hand, and if taken before a notary public, his seal 
 of office must be affixed to the certificate, provided 
 that any such deed, duly signed and sealed, with 
 two witnesses, and acknowledged as aforesaid, 
 shall be deemed good, whether in accordance with 
 the laws of the foreign country or not ; and pro- 
 
 [>_Minn. R. S., p. 535, sec. 9.] 
 
ACKNOWLEDGMENT OR PROOF OF EXECUTION. 97 
 
 vided that any deed of land in the state, executed 
 and acknowledged in any foreign country, which 
 shall have indorsed thereon a certificate of any 
 minister resident, charge d'affaires, or consul, of 
 the United States, appointed to reside therein, that 
 such deed is executed according to the laws of 
 such country, shall be entitled to record in the 
 county in which such land is situated.'] 
 
 [Sec. 89. In Nebraska, deeds executed within 
 the state may be acknowledged before a judge or 
 clerk of any court, or justice of the peace, or no- 
 tary public ; but no ofiicer can take any such ac- 
 knowledgment or proof out of his territorial juris- 
 diction.^ 
 
 Deeds executed without the state or territory 
 must be acknowledged according to the laws of 
 such state or territory, before any officer author- 
 ized to do so by the laws of such state or territory, 
 or before a commissioner appointed by the gov- 
 ernor of IsTebraska for that purpose. If such ac- 
 knowledgment is taken before a commissioner ap- 
 pointed by the governor of the state, notary public, 
 or other officer using an official seal, the instrument 
 is entitled to record without further authentication. 
 Otherwise, there must be attached to it a cei'tificate 
 of the clerk of a court of record, or other proper 
 certifying officer of the county, state, or district, 
 under the seal of his office, showing the person 
 
 '[Minn. K. S.,p. 535, sec. 10.] 
 ^ [Neb. Comp. Stat. 1881, p. 387, sec. 3.] 
 9 
 
98 ACKNOWLEDGMENT OR PHOOE OF EXECUTION. 
 
 whose name is subscribed to the certificate was, at 
 the date thereof, such officer as he is therein repre- 
 sented to be ; that he is well acquainted Avith the 
 handwriting of such officer ; that he believes the 
 signature to be genuine, and that the deed is exe- 
 cuted and acknowledged according to the laws of 
 such state or territory. 
 
 Deeds executed in a foreign country may be ex- 
 ecuted according to the laws of such country, and 
 the execution iii:^y be acknowledged before any 
 notary public therein, or before any minister pleni- 
 potentiary, minister extraordinary, minister resi- 
 dent, charge d'affaires, commissioner, commercial 
 agent, or consul of the United States, appointed 
 to reside tlierein, which acknowledgement shall be 
 certified thereon by the officer taking the same, un- 
 der his hand ; and if taken before a notary public, 
 his seal of office shall be affixed to such certificate.'] 
 
 [Sec. 90. In ISTew York, deeds executed within 
 tlie state may be acknowledged before the justices 
 of the Supreme court, judges of the county courts, 
 mayors and recorders ^of cities, or commissioners 
 of deeds, justices of the peace in towns, notaries 
 public, surrogates, justices of the marine court and 
 the district courts iu ITew York City, the judge of 
 the court of arbitration in New York City, clerk of 
 the city court of Brooklyn, justices of the justices' 
 courts iu the city of Troy and county of Albany, or 
 justices of the superior court of the city of Buffalo, 
 chancellors, circuit judges, judges of the supreme 
 
 '[Xeb. Comp. Stat., p. 388, sees. 4, 5, 6.] 
 
ACKKOWLEDGMENT OR PROOF OF EXECUTION. 99 
 
 court commission ; but no county judge, or com- 
 missioner of deeds for a, county or city, shall take 
 any such acknowledgment out of the city or county 
 for which he was appointed. Deeds executed with- 
 out the state may he acknowledged before the 
 judges of the United States courts, or of the su- 
 preme, circuit, 'or superior court of any state or 
 territory ; before the mayor of any city, or a JSTcw 
 York commissioner ; or, before any oflrcer author- 
 ized by the laws of the place of execution to take 
 acknowledgments of deeds. There must be a cei-- 
 tificate of a clerk, register, recorder, or prothono- 
 tary of the county, or clerk of the court thereof, 
 having a seal, stating that such oflicer was duly au- 
 thorized to make the same; that he is acquainted 
 with the handwriting of such officer, and believes 
 the signature to be genuine.' 
 
 ^o separate examination of a married woman is 
 required, resident or non-resident.^] 
 
 Sec. 91. In Ohio, everj' instrument required by 
 law to be recorded must, in addition to the attesta- 
 tion by two witnesses, be acknowledged by the 
 grantors, if made in the state, before a judge of a 
 
 '[N". Y. R. S., vol. 3, p, 221G. Deeds executed without the 
 United States, may be acknowledged before any minister 
 plenipotentiary, or any minister extraordinary, or any charge 
 d' affaires of the United States; in France and Russia, before 
 the United States consul ; in Great Britain and Ireland, before 
 the mayor of the city of London, mayor of Dublin, provost or 
 chief magistrate of Edinburgh, mayor of Liverpool, or United 
 States consul at London.] 
 
 2[Id., pp. 2218, 2233, L. 1880, ch. 300. p. 170.] 
 
100 ACKNOWLEDGMENT OK PROOF OF EXECUTION. 
 
 court of record in the state, or a clerk thereof, a 
 county surveyor, a justice of the peace, notary 
 public, or the mayor or other presiding officer of a 
 municipal corporation, who must certify the ac- 
 knowledgment on the same sheet on which the in- 
 strument is written or printed, and subscribe his 
 name thereto.^ * 
 
 Deeds of lands situated within the state may be 
 acknowledged out of the state before a commis- 
 sioner, appointed by the governor of Ohio for that 
 purpose, or a consul of the United States, resident 
 in any foreign country ; and all deeds, mortgages, 
 powers of 'attorney, and otherinstruments of writing 
 for the conveyance or incumbrance of lands situ- 
 ated within the state, executed and acknowledged in 
 any other state, territory, or country in conformity 
 with the laws thereof, or in conformity with the 
 laws of Ohio, are as valid as if executed in Ohio.^ 
 'No official seal need be affixed, though the officer 
 has an official seal.' In case of deeds made by 
 husband and wife, the officer, in addition to the 
 certificate above stated, is required to certify that 
 he examined the wife separate and apart from her 
 husband, and read, or otherwise made known to 
 her, the contents of the deed, and, upon such sep- 
 arate acknowledgment, she declared that she did 
 voluntarily sign, seal, and acknowledge the same, 
 and that she is still satisfied therewith.'' If the 
 
 1 [Ohio R. S. 1880, sec. 4106 ; 80 0. L., p. 80.] 
 
 ^[Oliio U. S., sec. 4111. J 
 
 ' [Fund Commissionere, etc., v. Glass et al., 17 Ohio, 542.] 
 
 *[Ohio R. S., sec. 4107; 80 0. L , p. 80.] 
 
%"'\. 
 
 ACKNOWLEDGMENT OR PKOOP OF EXECUTION. 
 
 deed is on more than one sheet of paper, or if ti/© 
 acknowledgment is on a separate sheet of paper, tl\e' 
 instrument may be corrected either by decree or b 
 voluntary act of the parties, so as to relate back to 
 the time of the filing in the recorder's office.' 
 
 "The statute^ seems to require: 1. A joint ac- 
 knowledgment by husband and wife of the deed. 
 
 2. An examination of her by the officer, in the ab- 
 sence of her husband, at which time the officer 
 taking the acknowledgment is required to read or 
 make known to her the contents of the deed. 
 
 3. A declaration from her to the officer, upon such 
 separate examination, that she did voluntarily 
 sign, seal, and acknowledge the deed. 4. And, 
 instnr omnium, the further declaration upon such 
 separate examination, that she is still satisfied 
 therewith. 5. And, lastly, that all these facts 
 should substantially appear in the certificate of the 
 officer." ^ 
 
 Sec. 92. In Pennsylvania, deeds exectited within 
 the state, may be acknowledged before a justice 
 of the peace, or before one of the judges of the 
 supreme court or court of common pleas of the 
 county where the land lies.^ When made by hus- 
 
 ^ [Id,, sec. 4149.] 
 
 2 [Ward's Heirs v. Mcintosh, 12 Ohio St. 242. Under this 
 act, Feb. 22, 1831, it is not essential that the acknowledgments 
 of both husband and wife should be taken at the same time. 
 Ludlow V. O'Neil, 29 0. S. 181,] 
 
 ' [Also notaries public, recorders of deeds, mayor, recorder, 
 and aldermen of Carbondale, Philadelphia, Pittsburg, and 
 
102 ACKNOWLEDGMENT OR PROOF OF EXECUTION. 
 
 band and wife, the certificate of acknowledgment 
 must state that the wife was examined separate 
 and apart from her husband; that the officer read, 
 or otherwise made known, the full contents thereof 
 to the wife, and that she declared that she vol- 
 imtarily, and of her own free will and accord, 
 sealed, and as her free act and deed delivered said 
 deed, without any coercion or compulsion of her 
 husband.^ The wife may revoke the deed at any 
 time before its delivery to the grantee. Deeds 
 made out of the state, and within any of the 
 United States, may be recorded, if the acknowl- 
 edgment is taken in due form before any officer or 
 magistrate of the state wherein the deed is exe- 
 cuted, authorized by the laws of such state to take 
 acknowledgments of decds.^ Deeds made oat of 
 the state may also be acknowledged or proved be- 
 fore any judge of the Supreme Court of the United 
 States, judge of any district court of the United 
 States, judge of the supreme, superior court, or 
 court of common pleas, judge of any court of pro- 
 bate, of court of record of any state or territory 
 in the United States, certified vinder the hand of 
 the judge and seal of the court; before auy con- 
 
 Scranton; mayor and aldermen of Allegheny and Lockbaven, 
 and mayor and recorder of Williamsport. Brightly's Purd., 
 pp. 403^05 ] 1 
 
 ' [Brightly's Purd., p. 460, sec. 13; "Watson v. Bailey, 1 Binn. 
 480,] 
 
 ^ [Leland's A pp., 1 3 Penn, St. 85. As proof of autlioiity, the 
 certificate of the clerk or prothonotary of a court of record 
 of the state, under the seal of the court, that the officer taking 
 (ho acknowledgment is duly qualified to take the same, is re- 
 quired. Brightly's Purd., pp. 46.3-465.] 
 
ACKNOWLEDGMBXT OR PROOF OF EXECUTION. 103 
 
 sul or vice-consul, embassadors, and other public 
 ministers ; before notaries public and commission- 
 ers appointed by the governor of Pennsylvania; or 
 before any mayor or chief magistrate, or officer of 
 the cities, towns, or places where such deed shall 
 he made or executed, and accordingly certified un- 
 der the common or public seal of the cities, towns, 
 or places where the deed is proved. Powers of 
 attorney may be acknowledged or proved in the 
 same manner; but, in Pennsylvania, powers of at- 
 torney can not be proved before a notary public.^ 
 
 [Sec. 93. In Tennessee, deeds executed within 
 the state may be acknowledged before a notary 
 public, and the clerks of the county court or their 
 deputies.^ 
 
 If made out of the state,thcy may be acknowledged 
 before a commissioner of deeds for Tennessee, no- 
 .tary public, any court of record or clerk thereof.' 
 Deeds made out of the United States may be ac- 
 knowledged before a commissioner of Tennessee, 
 a notary public, consul, minister, or embassador, 
 of the United States.* The certificate must be un- 
 der the official seal of the officer. If made before 
 a court of record, a copy of the record must be certi- 
 fied by the clerk, under his seal; and if before a 
 clerk, there must be a certificate as to his official 
 character by the presiding judge.-''] 
 
 1 [Griffith V. Black, 10 S. & R. 102.] 
 2[Tenn. Stat. 1S71, sec. 2039 and a.] 
 ' [Id., sec. 2040.] 
 * [Id., sec. 2041.] 
 '[Id.,seos. 2045, 2046.] 
 
104 ACKNOWLEDGMENT OR PROOF OF EXECUTION. 
 
 [Sec. 94. In "Wisconsm, acknowledgments of 
 deecla executed witliiii the state may be taken be- 
 fore any judge or clerk of a court of record, court 
 commissioner, county clerk, notary public, or jus- 
 tice of the peace. The officer taking such acknowl- 
 edgment shall indorse thereon a certificate of the 
 acknowledgment thereof, and the true date of mak- 
 ing the same, under his hand.^ Such certificate of 
 acknowledgment shall be sufficient, if made in the 
 following form : 
 
 State of Wisconsin, 1 
 
 ' ^ ss. 
 
 county 
 
 ■;}■ 
 
 Personally came before me, day of , 
 
 18 — , the above (or, within) named A. B., and C. 
 D., hia wife (or, if an officer, adding the name of 
 his office), to me known to be the persons who ex- 
 ecuted the foregoing (or, within) insti'ument and 
 
 acknowledged the same. .' 
 
 (Insert name of officer.) 
 
 If any such conveyance is executed in any other 
 state, territory, or district of the United States, it 
 may be executed in the manner and acknowledged 
 in the form above given, or according to the laAVS 
 of such state, territory, or district, and the execu- 
 tion may be acknowledged before any judge or 
 clerk of a court of record, notaiy public, justice of 
 the peace, master in chancery, or other officer au- 
 thorized by the laws of such state to take acknowl- 
 edgments of deeds, or before any commissioner 
 
 i[Wis. R. S. ]87S, sec. 2216.] 
 '[Id., SCO. 2217.] 
 
ACKNOWLEDGMENT OR PROOF OF EXECUTION. 105 
 
 appointed by the governor of the State ofWiscon- 
 sin ; and if executed within the jurisdiction of any 
 military post of the United States, not witliin 
 the state, it mav be acknowledged before the 
 commanding officer thereof;' otherwise a cer- 
 tificate of the clerk or other proper certifying of- 
 ficer of a court of record of the county or district 
 within which such acknowledgment was taken, un- 
 der the seal of his office, that the person whose 
 name is subscribed to the certificate of acknowl- 
 edgment was, at the date thereof, such officer as he 
 is represented to be, and that he believes the sig- 
 nature of such person subscribed thereto to be gen- 
 uine, must be attached; and if the deed is executed 
 and acknowledged according to the laws of such 
 state, territory, or district, the certificate must state 
 that fact. If any such deed is acknowledged before 
 any commissioner, clerk of a court of record, no- 
 tary public, or commanding officer of a military 
 post, which is executed according to the laws of such 
 state, or territory, or district, the certificate of ac- 
 knowledgment must certify that fact.^ 
 
 Deeds executed in a foreign country may be exe- 
 cuted and acknowledged as prescribed in sec- 
 tion 2216, or according to the laws of such 
 country, and the execution may be acknowledged 
 before any notary public, or other officer authorized 
 by the laws of such country to take the acknowl- 
 edgment of deeds therein, or before any minister 
 plenipotentiary, minister extraordinary, charge 
 
 '[Wis. R. S. 1878, sec. 2218.] 
 2 [Id., sec. 2219.] 
 
106 ACKNOWLEDGMENT OR PROOF OE EXECUTION. 
 
 d'affaires, commissioner, or consul of the United 
 States, appointed to reside therein ; such acknowl- 
 edgment must be certified by the ofiicer taking the 
 same, under his hand. If taken before a notary 
 public, his seal of office must be affixed thereto, and 
 if such deed be executed and acknowledged accord- 
 ing to the laws of such country, the certificate of 
 acknowledgment must certify that fact. 
 
 A married woman of full age, residing in the state 
 or elsewhere, may, by joint or separate deed, con- 
 vey lier lands in the state ; or, by joint or separate 
 deed of conveyance or quitclaim, release her dower, 
 in th.e same manner as if she were unmarried ;' and 
 may bar her dower by joining witli her husband, in 
 the same manner as if she were sole.^] 
 
 Sec. 95. At the end of the abstract of each deed, 
 a separate .memorandum should be made, stating 
 any defect or matter of doubt that appears. It calls 
 the attention of the reader to it, while the facts are 
 immediately before him, and does not require hirn, 
 as a note at the end of the abstract would, to turn 
 back and review the abstract anew. 
 
 Sec. 96. If au unmarried woman is about to ex- 
 ecute a conveyance creating trusts in her favor, 
 shortly before an intended marriage, it is prudent 
 to require the intended husband to unite with her 
 in the deed; for no such conveyance, clandestinely 
 made, will he valid as against him.^ 
 
 '[Wis. R. S., sec. 2221. J 
 '[Id., sec. 2222.] 
 
 'Bell on Husband and Wife, 3; 1 Story's Eq, Juris., sec. 
 273; Hill on Trustees, 163. 
 
ACKNOWLEDGMENT OR PROOF OF EXECUTION. 107 
 
 Sec. 97. Powers of attorney to convey lands 
 must be by deed. In all the states, they require the 
 same solemnities as deeds, and are recorded in the 
 same manner. The rule of the common law that 
 the death of the principal, whether known or un- 
 known to the agent, terminates the authority of an 
 agent acting under a power of attorney,^ is, in Penn- 
 sylvania, abrogated by statute. In that state, the 
 authority of the agent does not cease until he re- 
 ceives notice of his principal's death.^ 
 
 Sec. 98. By the common law, aliens can not ac- 
 quire or hold land. In many of the states, this 
 rule is abolished by statute.^ 
 
 In Indiana, an alien can not hold land unless he 
 is a bona fide resident of the United States.'' 
 
 In New T"ork, when an alien makes an affirma- 
 tion in writing before an officer that he is a resi- 
 dent, and intends always to reside in the United 
 States, and become a citizen as soon as he is natur- 
 alized, he is entitled to take and hold real estate, 
 and may, within six years thereafter, sell, assign, or 
 mortgage it, but has not power to lease or demise 
 
 ^ Story on Agency, sec. 488; Easton v. Ellis, 1 Handy, 70. 
 
 2 [Brightly 's Purd , p. 101, sec. 3.] 
 
 *[Ala. Code, 1876, seo. 2860; Col. Gen. Laws, 1877, p. 90, sec. 
 15; Ga. Acts, 1875, p. 21; Ills. R. S. 1880, p. 9.5, sec. 1; la. Stat. 
 1880, sec. 1908; Kana. Comp. L. 1881, p. 51, sec. 17; Ky. Gen. 
 Stat. 1881, p. 861, sec. 1 ; Minn. R. S. 1878, p. 820, sec. 41 ; Ohio 
 R St., sec. 4173; Neb. Comp. Stat. ]881,p. ]7, sec. 25, Const.; 
 Tenn. Acts, 1875, p. 4; Wis. R. S., seo. 2200.] 
 
 *[Ind. E. S. 1881, sec. 2915.J 
 
108 ACKNOWLEDGMENT OR PROOF OF EXECUTION. 
 
 it until he becomes naturalized.^ The affirmation 
 must be certified and recorded. Such alien is not 
 capable of taking or holding any lands which may 
 have descended or been devised or conveyed to him 
 previous to having become such resident or made 
 such affirmation.^] 
 
 1 [N. Y. R. S. 1881, vol. 3, p. 2164, sec. 16.] 
 = LN. Y. R. 8., vol. 3, p. 2164, sec. 17.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 109 
 
 CHAPTER VI. 
 
 OP THE SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 99. General nature of liens. — 100. Liens in favor of United 
 States. — 101. Liens in Alabama. — 102. Liens in Colorado. — 
 103. Liens in Georgia. — 104. Liens in Illinois. — 105. Liens 
 in Indiana. — 106. Liens in Iowa. — 107. Liens in Kansas. — 
 108. Liens in Kentucky. — 109. Liens in Michigan. — 110. 
 Liens in Minnesota. — 111. Liens in Nebraska. — 112. Liens 
 in New York. — 113. Liens in Ohio. — 114. Liens in Penn- 
 sylvania. — 115. Liens in Tennessee. — 116. Liens in Wiscon- 
 sin. 
 
 Sec. 99. Liens are created upon lands, either Ly 
 the express declaration of the legislature, to secure 
 debts due to the state, as in the case of taxes and 
 other debts due on public account ; or, in conse- 
 quence of the law raising estates in favor of the 
 husband or the wife, as an incident of marriage, as 
 curtesy and dower; or, by the acts of courts ad- 
 judging that the lands of the defendant be taken 
 in execution, or be subjected to a charge ; or, in 
 consequence of the voluntary act of the parties in 
 making leases, gra'nting mortgages, estates for life, 
 and the like. These liens being almost universally 
 regulated by the statutes of the particular states, 
 iu which the lands lie, it will be convenient to con- 
 sider them as they exist in thj3 several states. 
 
 Sec 100. 1. "Warrants of distress levied under 
 
110 SEARCH FOR LIENS A^-D ABSTRACTING THEM. 
 
 the act of May 15th, 1820, are liens on tlie lands 
 of any officer receiving money for the government, 
 and his sureties, from the date of a levy and of the 
 recoi-d thereof in the office of the clerk of the dis- 
 trict court of the proper district.* 
 
 [2. The internal revenue tax is a first lien on 
 spirits distilled, distillers' fixtures, and the lot of 
 land on which they stand, or any building thereon.^ 
 
 3. When persons liable to pay any taxes neglect 
 or refuse to pay the same, after demand, the amounts 
 shall be a lien in favor of the United States from 
 the time they vi'ere due until paid, with, the inter- 
 est, penalties, and costs tbat may accrue, upon the 
 property of such persons.* 
 
 4. In proceedings to subject real estate for neg- 
 lect to pay taxes, the commissioner of internal 
 revenue may direct a bill in chancery to be filed iu 
 the district or circuit court of the United States, 
 to enforce the lien of the United States for taxes 
 upon any real estate owned by the delinquent.* 
 
 5. Judgments and decrees rendered in the cir- 
 cuit or district court within any state, cease to be 
 liens on real estate and chattels real in the same 
 manner and at like periods as judgments and de- 
 crees of the courts of the state cease, by law, to be 
 liens thereon.'* 
 
 1 [U. S. R. S. IS, , sec. 3529; 5 U. S. Stat. 593.] 
 '[U. S. K. S., sec. 32,5].] 
 = [Id., sec. 3186.] 
 * [Id., sec. 3207,] 
 5 [Id, sec. 9G7.] 
 
SEARCH FOR LIENS AND ABSTRACTING TIIEM. Ill' 
 
 G. "When a suit is removed from a state to a 
 United States court, attachmients, injunctions, and 
 indemnity bonds remain in full force.'] 
 
 ALABAMA. 
 
 [Sec. 101. 1. Taxes due the state are a lien upon 
 the real and personal estate of persons within the 
 county in which the assessments are made from 
 the first of January.- 
 
 2. Official bonds. — The bonds of the judge of the 
 probate court, county court, sheriff, clerks of the 
 circuit and city courts, tax collector, tax assessor, 
 and county treasurer, are liens on the property of 
 the officers giving the same from the date of their 
 execution.' 
 
 3. Dower. — In Alabama, dower is an estate for 
 life of the widow in the lands of her husband to 
 which she has not relincpiished her right during 
 marriage : 1. Of all lands of which the husband 
 Avas seized in fee during the marriage. 2. Of all 
 lands of which another was seized in fee to his use. 
 3. Of all lands to which, at the time of his death, he 
 had a perfect equity, having paid all the purchase 
 money thereon.* 
 
 "When the husband dies, leaving no lineal de- 
 scendants, and his estate is not insolvent, his widow 
 is entitled to be endowed of one-half of his lands. 
 If, in such case, his estate is insolvent, to one-third 
 
 ' [U. S. E. S., sec. 646.] 
 = [Ala. Code 1876, sec. 375.] 
 '[Id., sees, let, 107.] 
 *[Id., sec. 2232.] 
 
112 SEAUCH FOR LIENS AND ABSTRACTING THEM. 
 
 part thereof ; and, when there are lineal descend- 
 ants, then to one-third part thereof, whether the 
 estate is insolvent or iiot.^ 
 
 If any married woman, having a separate estate, 
 survives her husband, and such separate estate, ex- 
 clusive of the rents, income, and profits, is equal 
 to or greater in value than her dower interest and 
 distributive share in her husband's estate, estimat- 
 ing her dower interest in his lands at seven years' 
 rent of such interest, she will not be entitled to 
 dower." But, if her separate estate is less in value 
 than her dower, as ascertained by the above rule, 
 so much must be allowed her as that her separate 
 estate would be equal to her dower, if she had no 
 separate estate.' 
 
 Dower is relinquished by the wife joining with 
 the husband in a conveyance of land in the pres- 
 ence of two witnesses, who must attest the same ; 
 or, subsequent to such conveyance by the hus- 
 band, by an instrument in writing releasing her 
 right of dower, executed by her in the presence of 
 two witnesses, and attested by them, or acknowl- 
 edged as in any other conveyance.* 
 
 4. Curtesy. — If a married woman, having a sep- 
 arate estate, dies intestate leaving a husband, he 
 is entitled to one-half of the personalty of such 
 
 i[Ala. Code 1876, sec. 2233.] 
 ='[Id., sec. 2715.] 
 '[Id. sec. 2716.] 
 * [Id., sec. 2234.] 
 
SEARCH FOE LIENS AND ABSTRACTING THEM. 113 
 
 separate estate, and the use of the realty during 
 his life.^ 
 
 The separate estate of the wife vests in the hus- 
 band as her trustee, who has the right to manage 
 and control it, and is not required to account with 
 the wife, her heirs, or legal representatives for 
 the rents and profits thereof. But such rents and 
 profits are not subject to the payment of his 
 debts.2 
 
 The husband is not liable for the antenuptial 
 debts of the wife.' 
 
 5. Judgments and executions. — "When an execution 
 has been issued within one year after the rendition 
 of a judgment, and returned unsatisfied, another 
 execution may be issued at any time within ten 
 years without a revival of the judgment.* But no 
 execution can issue on a judgment or decree of a 
 circuit, chancery, or probate court, on which an 
 execution has not been issued within one 3'ear 
 after its rendition, until the same has been revived 
 by scire facias, if the defendant is a resident, 
 calling on him to show cause why the plaintifi" 
 should not have execution on his judgment or de- 
 cree, and, when the defendant is a non-resident, 
 plaintifil:' must make affidavit of such non-residence, 
 that the decree is unsatisfied, and cause publica- 
 tion to be made once a week, for three successive 
 
 i[Ala. Code, sec. 2714.] 
 '[Id., sec. 2706.] 
 '[Id., sec. 2704] 
 *[ld., fee. 3173.] 
 10 
 
114 SEARCH FOB, LIENS AND ABSTRACTING THEM. 
 
 Aveeks, in some newspaper published in the county, 
 calling on the defendant to show cause why plaint- 
 iff should not have execution on his judgment or 
 decree. If ton years elapse from the rendition of 
 the judgment without the issue of an execution, 
 or if ten years have elapsed since the date of the 
 last execution, the judgment must be presumed to 
 be satisfied.^ 
 
 A writ o? fieri facias is a lien only within the 
 county in which it is received by the officer on the 
 lands which continues as long as the writ is regu- 
 larly issued and delivered to the sheriff without 
 the lapse of a term.^ 
 
 If an entire term elapses between the return of 
 an execution and the issuing of an alias, the lien 
 created by the delivery of the first execution is 
 lost; but, if an alias is issued before the lapse of 
 an entire tenii, and delivered to the sheriff before 
 the sale of the property under a junior execution, 
 the lien created by the delivery of the first execu- 
 tion is preferred.' 
 
 The lien is destroyed by supersedeas, injunction, 
 or appeal.* 
 
 A writ of fieri facias issued and received by the 
 sheriff during the life of the defendant, may be 
 levied after his decease, or an alias may be issued 
 and levied if there has not been the lapse of an eu- 
 
 ' [Ala. Code, sec. 3171] 
 ^ [Id., sec. 3210.] 
 '[Id,, see. 3211.] 
 * [Id., sec. 3212.] 
 
SEARCH FOR LIEXS AND ABSTRACTING THEM. 115 
 
 tire term, so as to destroy the lien originally cre- 
 ated.^ 
 
 1^0 scire facias can issue to revive a judgment, 
 after the lapse of twenty years from its rendi- 
 tion.^ 
 
 Executions issued on decrees of the chancery 
 court are liens from their delivery to the officer on 
 the real estate, in the same manner as executions in 
 the courts of law.^ 
 
 Executions issued by justices are a lien from the 
 time of the levy.* 
 
 If more than one comes to the hands of the con- 
 stahle, at different times, the first received must be 
 the first satisfied ; if at the same time, they must he 
 ratably proportioned.'^ 
 
 6. Judicial proceedings; attachments. — The lien of 
 attachment dates from the time of levy or service 
 of garnishment. The rule is the same at law° and 
 in chancery,' as 'weU as in justices' courts.' 
 
 7. La.ndlord's lien.—l^he landlord has a lien on 
 the grovping crop of the tenant for rent, and for 
 advances in money made for the support of his 
 family, and the cultivation of the ground.' 
 
 8. Purchase money liens. — This lien exists in this 
 
 '[Ala. Code,. sec. 3213.] 
 
 2 [Id., sec. 3175.] 
 
 = [Id., sec. 3898.] 
 
 *[Id., sec. 3649.] 
 
 * [Id., sec. 3650.] 
 
 "[Id., sec. 3280.] 
 
 '[Id., sec. 3851.] 
 
 « [Id., sec. 3683.] 
 
 "[Id., sec. 3467; Acts. 1878-9, p. 72.] 
 
116 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 state/ and, by statute, is extended to the trans- 
 feree of the vendor of land, without regard to the 
 liability of the vendor.^ 
 
 9. 31origngrs. — ]\Iortgages and instruments in the 
 nature of mortgages to secure debts created at the 
 date thereof, must be recorded within three mouths 
 from date.^ Mortgages are canceled by entry of sat- 
 isfaction on the margin.' There may be satisfac- 
 tion of partpaj'ment so entered.'' Mortgages, deeds 
 of trust, or other instruments to secure the payment 
 of pre-existing debts, are void as to creditors of the 
 grantor when they are required to make any 
 release, or to do any act impairing their existing 
 rights before receiving the securities therein pro- 
 vided." 
 
 Where real estate is sold under execution, 
 mortgage, or deed of trust, or power of sale in a 
 mortgage, or by virtue of ixnj decree in chancery, 
 the same may be redeemed by the debtor from the 
 purchaser within two j'ears thereafter.^ 
 
 10. Leases. — Leases for more than one year must 
 be in writing.^ 
 
 School lands may be leased for a term not ex- 
 ceeding five years.' 
 
 1 [Burns v. Taylor, 23 Ala. 255.] 
 
 2[Acts 1878-9, p. 171. J 
 
 '[Ala. Code, sec. 2166.] 
 
 * [Id., sec. 2222.] 
 
 5 [Acts 1878-9, p. 102.] 
 
 ^[Ala. Code, sec. 2125.] 
 
 '[Id., sec. 2877.] 
 
 8 [Id., sec. 2121.] 
 
 ='[Id., sec. 968.] 
 
SEARCH FOR LIENS AND ABSTRACTING TIIEM. 117 
 
 ]S"o leasehold can be created for a longer pei-iod 
 than twenty years.' 
 
 n. Mechanics' lievs. — To create the liens of me- 
 chanics every original contractor must tile his claim, 
 within six months, with the judge of the probate 
 court of the county in which the property is situ- 
 ated, every journeyman and laborer must file 
 his claim within thirty days, and all other persons 
 within four months after the accrual of the indebt- 
 edness. If the claim belongs to a laborer, sub- 
 contractor, or material man, the lien shall be only 
 to the extent of the unpaid balance in the owner's 
 hands after notice of the same.^ 
 
 The lieu is lost if an action is not commenced 
 within ninety days after filing the lien.^ 
 
 Persons, other than original contractors, who 
 wish to avail themselves of the benefit of the me- 
 chanics' lien laws, must give ten days' notice, before 
 filing their claims, to the owner or his agent. 
 
 Agricultural laborers and superintendents of 
 plantations have liens on the same for their labor, 
 which continue for six months.''] 
 
 COLORADO. 
 
 [Sec. 102. 1. Taxes are levied for the fiscal year 
 ending ITovember 30th, and are a perpetual lien on 
 real estate until paid.^ 
 
 '[Ala. Code, sec. 2190.] 
 
 '[Id, sec. 3444,] 
 
 •'[Id., sec. 3454.] 
 
 ■> [Id., sees. 3457, 3482.] 
 
 5 [Col. Gen. Laws, 1877, sec. 2336.] 
 
118 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 2. Doioer and mrtesy. — Dower and tenancy bythe 
 curtesy are abolished, the widow being entitled to 
 one-half of the estate of the husband. The husband 
 is entitled to the same share in the wife's estate.^ 
 
 3. Judgments and executions. — Judgments are a 
 lien on real estate for six years from their entry, but 
 execution must be issued within one yeartherefrom ; 
 and where a party has been restrained by injunction, 
 that time is not considered as any part of the six 
 3'ears.^ Executions may be issued to any county by 
 the party in whose favor judgment is obtained.^ 
 
 4. Mortgages. — Mortgages are notice from the 
 time of being filed for record, though not acknowl- 
 edged or proved according to law, but can not be 
 read as evidence unless subsequently acknowledged 
 or proved according to law, or unless their execu- 
 tion be otherwise proved, in the manner required 
 by the rules of evidence.* 
 
 Mortgages are canceled by an entry of satisfac- 
 tion or receipt on the mortgage or margin of rec- 
 ord of the mortgage.'' 
 
 Lands may be redeemed within six months from 
 sale by defendant, his heirs, executors, administra- 
 tors, or grantees.^ 
 
 5. Leases. — Contracts of lease for more than one 
 year are void, unless in writing.'' 
 
 i[Col. Gen. Laws, 1877, sec. 882.] 
 
 ' [Gen. Laws, sec. 1409; Laws, 1879, p. 223, sec. 16.] 
 
 « [Id., sec. 1413.] 
 
 * [Id., sec. 178.] 
 
 ^[Id,, sees. 1847, 1849; L. 1879, p.-49.] 
 
 •'[Id., sec. 1419.] 
 
 '[Id., sec. 1258.] 
 
SEAKCII FOR LIENS AND ABSTRACTING THEM. 119 
 
 6. Mechanics' liens. — Persons performing labor oi* 
 furnishing material by contract, express orimplied, 
 with another or his agent, to the amount of not 
 less than $25, on or for any structure upon his land, 
 have a lien upon the land and structure to the ex- 
 tent of the ownership at the time of the commence- 
 ment of the work, etc. Claims must be filed in the 
 office of the clerk and recorder of the county where 
 the land is situated within forty days after the last 
 of the labor is performed or material furnished, 
 when they become a lien upon the land. Subcon- 
 tractors and laborers must serve upon the owner 
 or his agent, or, where there is no agent, must post 
 iu a conspicuous place on the structure, a notice of 
 their claim. ^ 
 
 Subcontractors, mechanics, etc., have liens for 
 work done and material furnished in constructing 
 railroads, toll roads, mines, aqueducts, canals, etc., 
 by service of notice on the owner or agent, or post- 
 ing the same. 
 
 The liens referred to, as well as those above 
 stated, continue for six mouths, unless an action is 
 commenced within that time, and relate back to 
 the commencement of the work, etc. They have 
 priority over unrecorded incumbrances, or other un- 
 recorded liens previously created.^ Surveyors have 
 a like lion for surveying and platting mines.^ So, 
 also, assignees of claims.*] 
 
 1 [Col. Laws, 1881, pp. 168-176.] 
 ^[Gen. Laws, 1881, p. 171. J 
 '[Id., p. 175, sec. 16.] 
 *[Id., sec. 15.] 
 
120 SEARCH FOR LIKNS AND ABSTRACTING THEM. 
 GEORGIA. 
 
 [Sec. 103. 1. Taxes are a first lien on the real es- 
 tate.^ All deeds of gift, mortgages, sales, and as- 
 signments of propert}', made to avoid the payment 
 of taxes, or judgments procured to be rendered for 
 the same purpose, are void.^ The person to whom 
 the property is conveyed is liable for taxes.' 
 
 2. Dower. — Dower is the right of the wife to the 
 estate for life in one-third of the land, according 
 to valuation, including the dwelling-house (which 
 is not to be valued, unless in a town or city), of 
 which the husband was seized at the time of his 
 death, or to which the husband obtained title in 
 right of his wife.'' 
 
 All of the property of the wife, had at the time 
 of her marriage, is her separate estate; and all 
 property given to, inherited, or acquired, belongs to 
 the wife, and can not be made liable for the debt, 
 default, or contract of the husband.'' 
 
 IsTo lien created by the husband in his lifetime, 
 though assented to by the wife, can in any manner 
 interfere with her right of dower.' The widow of 
 a vendee of land is not entitled to dower until the 
 purchase money is paid, as against the vendor.'' 
 
 Dower is barred by a provision made prior to 
 
 ' [Ga. Code, 1873, sec. 1973.] 
 
 2 [Id., sec. 813.] 
 
 '[Id., sec. 814.] 
 
 *[Id., sec. 1763.] 
 
 5 [Id., sec. 1754; Sup., sec. 567.] 
 
 <=[Id., sec. 1769.] 
 
 '[Act 1875, p. 100; Sup., sec. 32G.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 121 
 
 marriage, and accepted by the wife in lieu thereof; 
 by a provision made by deed or will, and accepted 
 by the wife after the husband's death, expressly in 
 lieu of dower, or where the intention of the hus- 
 band is plain that it shall be in lieu of dower; by 
 an election of the widow, within twelve months 
 from the grant of letters of administration on the 
 liusband's estate, to take a child's part of the real 
 estate in lieu of dower; by a failure to apply for 
 dower for seven years from the death of the hus- 
 band ; by the wife's deed with her husband to land 
 to which the title came through her; by the adul- 
 tery of the wife, unpardoned by the husband.' If 
 the husband, by will, gives to his wife an interest 
 in his land, her election of dower bars her of that 
 devise, but does not deprive her of any interest in 
 the personalty, unless it is expressed to be in lieu 
 of dower.^ 
 
 But the election of the widow to take a child's 
 part of the real estate, in ignorance of the condi- 
 tion of the estate, will not bar her right to dower, 
 provided the rights of third persons, acting bona fide 
 upon her election, are not prejudiced.^ 
 
 3. Curtesy. — Upon the death of the wife, the 
 husband is her sole heir ; and, upon payment of her 
 individual debts, may take possession thereof with- 
 out administration. "When there are children sur- 1 
 viving, and she leaves a separate estate, it will be 
 
 1 [Ga. Code, sec. 1764.] 
 ^ [Id., sec. 1TC5.] 
 " [Id., sec. 1766.] 
 11 
 
122 SEAKCII FOR LIENS AND ABSTRACTING THEM. 
 
 divided equally, share and share alike, between the 
 husband and children or fheir descendants, the 
 children taking j>er cajiita, and their descendants 
 j-irr stirpes} 
 
 4. Judgments and executions. — Judgments are 
 liens on the real estate for seven years after their 
 rendition, or seven years after the last entry upon 
 an execution. Judgments may be revived by scire 
 facias, or action of debt, within three years from 
 the time they become dormant.^ 
 
 Judgments rendered at the same term of court 
 are held to be of equal date, and no execution is- 
 sued thereon is entitled to preference by being first 
 placed in the hands of the ofBcer.' 
 
 Judgments of the superior court taken to the 
 supreme court and affirmed, lose no lien or priority 
 by the proceedings of the supreme court, but take 
 effect from their rendition in the court below.'' 
 
 Judgments obtained in the superior, justices', 
 or other courts of the state, are of equal dignity, 
 and bind all the property of the defendant from 
 their date.' 
 
 Decrees in chancery have a like lien as judgments 
 at law," and may be revived upon petition and no- 
 tice, without a bill or writ of scire facias} 
 
 '[Ga. Code, sec. 1761. J 
 ^[Id., sees. 2914,3604] 
 ' [Id., sec. 3578.] 
 * [Id., sec. 3.579.] 
 ^ [Id., sec. 3580.] 
 "[Id., sec. 4217.] 
 '[Id., sec. 4219.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 123 
 
 A judgment on conviction in criminal cases, car- 
 ries a lien for costs on the property of the criminal 
 from the date of the arrest.^ 
 
 5. Judicial proccedin'gs.-^The Wen of attachments 
 is created by the levy, and not tlio judgment. In 
 case of a conflict between attachments, the first 
 levied is the first satisfied ; but between attachments 
 and ordinary judgments or suits, it is the judgment, 
 and not the levy, which fixes the lien.^ 
 
 6. Purchase money liens. — The vendor's lien for 
 purchase money is abolished in this state ;^ but the 
 vendor may attach land for the purchase money, 
 and the lien of the judgment on the attachment is 
 exclusive of any other attachment.' 
 
 Official bonds. — The state has a lien on the prop- 
 erty of the treasurer, and of his sureties, on the 
 filing of his bond in the ufiico of the secretary of 
 state.' 
 
 7. Growing crops. — Landlords have a special lien 
 for rent on crops, superior to all other liens, except 
 for taxes, and also a general lien on the pi'operty 
 of the debtor liable to levy and sale, and such gen- 
 eral lien dates from the time of the levy of the dis- 
 tress warrant.^ 
 
 8. Morir/age. — ISTo particular form is necessary to 
 constitute a mortgage. It must bo executed in the 
 
 ' [Ga. Code, sec. 4699.] 
 ^ [Id., sec. .SSSl.] 
 '[Id., sec. 1997.] 
 * [Id., sec. 3292.] 
 5[Act 1876, p. 127.] 
 «[6a. Code, sec. 1977.] 
 
124 SEARCH FOR LIENS AND ABSTEACTINa THEM. 
 
 presence of, and attested or proved before, a notary 
 public, or justice of any court in the state, or a 
 clerk of the superior court (and, in case of real 
 property, by one other witness), and recorded 'withiu 
 thirty days from date.^ Mortgages not recorded 
 within the time required, remain valid as against 
 the mortgagor, but are postponed to all other liens 
 created or purchases made prior to the actual rec- 
 ord of the mortgage. Notice of a prior unrecorded 
 mortgage will postpone a j'ounger mortgage.^ 
 
 A mortgage recorded in an improper office, or 
 without due attestation, or so defectively recorded 
 as not to give notice to a prudent inquirer, is not 
 held to be notice to subsequent 6oKa_y?(ie purchasers 
 or younger lienors.^ 
 
 The due record of a mortgage, though not made 
 in the prescribed time, is notice from the time of 
 record to all the world.'' A lien is created in this 
 state by a deposit of title deeds, Avhich amounts to 
 an equitable mortgage.' 
 
 9. Lease. — The relation of landlord and tenant 
 exists when the owner of real estate grants to an- 
 other the right to possess and enjoy the use of the 
 same, either for a fixed time, or at the will of the 
 grantor. In such case, no estate passes out of the 
 landlord, and the tenant has only the usufruct, 
 which he can not convey except by the landlord's 
 
 1 [Act 1876, p. 34; Sup,, sec. 334. J 
 
 ■" [Ga. Code, sec. 1957.] 
 
 » [Id., sec. 1959.] 
 
 * [Id., sec. I960.] 
 
 ^ [Id.; Mounce v. Eyars, 16 Ga. 469.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 125 
 
 consent, and which is not subject to levy and sale; 
 and all renting or leasing of such real estate for a 
 period of time less than five years, is held to con- 
 vey only the right to possess and enjoy such real 
 estate, unless the contrary be agreed upon by the 
 parties to the contract, and so stated therein.^ 
 
 10. Mechanics' liens. — Mechanics, contractors, ma- 
 terial men, machinists, manufacturers of machinery, 
 including corporations engaged in such business, 
 have a lien on the buildings, etc., for woi'k done 
 and materials furnished. They must file their 
 claims within thirty days after the completion of 
 the work or material furnished, in the ofiice of the 
 clerk of the superior court of the county where the 
 building is situated, and commence an action within 
 twelve months from the time the claims become due.^ 
 
 Laborers have a general lien upon the property 
 of their employers,^ and also a special lien on the 
 products of their labor.* These liens arise upon 
 the completion of the labor, but can not exist 
 against bona fide purchasers until reduced to execu- 
 tion and levied by the officer.^ A lien exists in fa- 
 vor of those furnishing articles, etc., for carrying 
 on sawmills, on said mills,^and in favor of laborers 
 at steam mills.''] 
 
 ' [Ga. Sup., sec. 377.] 
 2 [Id,, sec. 1980.] 
 5 [Id., sec. 1974.] 
 
 * [Id., sec. 197.5.] 
 
 * [Id., sec. 1976.] 
 "[Id., sec. 1985.] 
 '[Id., sec. 1984.] 
 
 ■'J 
 
126 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 ILLINOIS. 
 
 [Sec. 104. 1. Taxes. — Taxes are a lien on real 
 propertj'- from the 1st of May of each year.^ 
 
 2. Dower and curtesy. — The surviving husband or 
 wife is entitled to one-third of the lands of which 
 the husband or wife was seized of an estate of in- 
 heritance at any time during marriage, unless the 
 same is relinquished in legal form.^ 
 
 3. Jadgwents and executions. —Judgments in any 
 court of record, either at law or in equity, are liens 
 on lands from the time the same are rendered or 
 revived for seven years. When execution is not 
 issued on a judgment within one year from the 
 time the same becomes a lien, it ceases to be 
 a lion ; but an execution may be issued on a judg- 
 ment at any time within seven years, and becomes 
 a lien on the real estate from the time it is deliv- 
 ered to the sheriff.^ 
 
 There is no priority over judgments rendered at 
 the same term, or same day in vacation. If exe- 
 cution is restrained by injunction, appeal, or order 
 of tiie court, or is delayed on account of the death 
 of the defendant, the time of the restraint is not 
 considered part of the seven years.* Decrees in 
 equity are liens on all lands respecting which they 
 are made.^ 
 
 Executions issued from the court of one county 
 
 ' [Ills. R. S. 1S80, p. 1289, sec. 253.] 
 ^ [Id , p. 549, sec. l.J 
 "[Id., p. 8Gl,sec. 1.] 
 *[Id.,p. 861, sec. 2.] 
 6 [Id., p. 192, sec. <i5] 
 
SEAECH FOE, LIENS AND ABSTRACTING THEM. 127 
 
 to tlie sheriff of another county, become liens on a 
 certificate being filed in the office of the recorder 
 of the county.' Judgments in bastardy proceed- 
 ings are liens.^ 
 
 4. Judicial proceedings. — Attachments, whether 
 issued in the county, or sent into the county from 
 otlier courts, do not take effect against creditors 
 and bona fide purchasers withont notice, until a cer- 
 tificate of the levy is filed in the office of the re- 
 corder of the county in which the lanjls lie.' 
 
 5. Decedents' debts. — The lands of deceased per- 
 sons are liable for their debts, but, if they are 
 aliened bona fide before action brought, the heir or 
 devisee, and not the purchaser, is liable to creditors 
 for their value.* 
 
 6. Official bonds. — The bond of the county col- 
 lector of taxes, filed in the office of the auditor, 
 and the bond of the town and district collector, 
 filed in the oflace of the county clerk, create liens 
 on the lands of those officers.^ 
 
 7. Landlord's lien on crops.^ 
 
 8. Mortgages. — Mortgages take effect as to all 
 creditors, and- subsequent purchasers, without no- 
 tice, from the time they are filed for record.' The 
 rule of equity, that notice of the existence of an 
 
 '[Ills. R. S., p. 869, sec. .34.] 
 
 2 [Id., p. 165, seo. 12.] 
 
 ^[ld.,p. 126, sec 9.] 
 
 *[Id., p. 743, seo. 12.] 
 
 ^ [Id., pp. 1259, 1262, sees. 134, 146.] 
 
 "[Id., p. 921, sec. 31.] 
 
 '[Id., p. 316, sec. 30.] 
 
128 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 unrecorded mortgage will postpone a subsequent 
 incumbrancer, is adopted. Satisfaction may be en- 
 tered on the margin of the record by the mort- 
 gagee or his assignee, or other legal representative, 
 or the mortgage maybe released by deed, under 
 the mortgagee's signature and seal, attested and 
 acknowledged.' A deposit of title deeds creates 
 an equitable mortgage.^ 
 
 9. Leases. — Leases for more than one year must be 
 in writing.^ They may be exempt as a homestead.* 
 
 10. Mechanics' liens. — Mechanics, material men, 
 and laborers have liens on buildings, and appurte- 
 nances to buildings, and the land on which they 
 stand, and upon all the property, real and personal, 
 of railroad corporations.' 
 
 IsTo creditor is allowed to enforce the lien to the 
 prejudice of any other creditor, incumbrancer or 
 purchaser, unless sait be instituted to enforce the 
 lien within six months after the last payment for 
 labor or materials has become due.° Subcontractors 
 must bring an action within three months from the 
 time of performance of subcontracts, etc' 
 
 Contractors have a lien by special assessment for 
 public improvements.* 
 
 11. Purchase money liens.']^ 
 
 i[R. S.,p. 993, sees. 8,9.] 
 ^[Wilson V. Lyon, 51 111. 106.] 
 « [R. S., p. 740, sec. 2,] 
 * [Id., p. 676, sec. 1.] 
 ^ [Id., pp. 926-938.] 
 «[Id.,p. 931, sec. 28.] 
 '[Id., p. 93.5, sec. 47.] 
 «[Id.,p. 2.i6, see. 162.] 
 "[Moshier v. Meek, 80 Ills. 79.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 129 
 INDIANA. 
 
 [Sec. 105. 1. Taxes. — The lien for taxes attaches 
 on all real estate on the first of April, annually, 
 and is perpetual for all taxes due from the owners 
 thereof.' City taxes on real estate are a lien on 
 the 1st of April, annually, to the same extent as a 
 judgment of a court of record of general jurisdic- 
 tion, and has preference over any personal charge. 
 The lien is not destroyed by a sale or transfer of 
 such real estate.^ 
 
 2. Doivir. — The common law estate of dower 
 has been abolished.^ But the widow is entitled 
 to one-third in fee of all real estate, free from 
 all demands of creditors, provided that, where 
 the real estate exceeds in value ten thousand 
 dollars, the. widow shall have one-fourth only, 
 and, where the real estate exceeds twenty thou- 
 sand dollars, one-fifth only, as against credit- 
 ors.* Where a provision is made for the widow in 
 the will, she is put to her election.^ She can not 
 alienate the land during a second or subsequent 
 marriage, where there are children or their descend- 
 ants alive of the first marriage, unless they are 
 twenty-oneyearsof age, andjoin in the conveyance." 
 If the husband dies intestate leaving a widow and 
 
 '[Ind. R. S. 1881, sec. 6446.] 
 
 ' [Id., sec. 3086.] 
 
 ■'[Id., sec. 2482.] 
 
 * [Id., sec. 2483.] 
 
 s [Id., sec. 2505.] 
 
 « [Id., sec. 2484.] 
 
130 SEAKCH FOR LIENS AND ABSTKACTINa THEM.- 
 
 one child, the retil estate descends one-half to the 
 widow and one-half to the child. ^ 
 
 3. Curtesy. — The common law estate of curtesy 
 is aholished,^ but the husband is entitled to a third 
 of the wife's land in fee, subject to the payment 
 of her debts contracted before marriage.' 
 
 4. JadgmeMs and executions. — Judgments of 
 United States circuit courts are liens upon real es- 
 tate throughout the state.* Allfinal judgments in 
 the supreme and circuit courts, for the recovery of 
 money or costs, are liens upon real estate, liable 
 to execution, in the county where judgment was 
 rendered, for ten years after the rendition thereof, 
 and no longer, exclusive of the time during T^hich 
 the party may be restrained from proceeding 
 thereon, by appeal or injunction, or by the death 
 of the defendant, or by agreement of parties en- 
 tered of record.' 
 
 The filing of a certified copy of a judgment 
 rendered in a corresponding court in another 
 county, creates a lien on the land, including chat- 
 tels real, of the defendant, in the county in which 
 the copy is filed.* 
 
 The filing of a transcript of a judgment of a 
 justice of the peace, and docketing it in the clerk's 
 
 1 [Ind. R. S., sec. 2486. 
 
 ^ [Id., sec. 2482] 
 
 s [Id., sec. 2485.] 
 
 * [Simpson v. Niles, 1 Ind. 196.] 
 
 '*[Ind. I?. S., sec. 608.] 
 
 « [Id., sees. 610,611.] 
 
SEARCH FOK LIENS AND ABSTRACTING THEM. 131 
 
 office of any coui't in the state, creates a lien from 
 the time of the filing.^ 
 
 An execution against property, issued to another 
 county, binds the real estate of the defendant from 
 the time of the levy.^ 
 
 5. Judicial proceedings. — Orders of attachment 
 hind the property of the defendants in the county 
 subject to execution, and become a lien from the 
 time the order is delivered to the sheriff, in the 
 same manner as an execution.^ Judgments on 
 bonds payable to the state bind the debtor's real 
 estate from the commencement of the action.* 
 
 Every recognizance binds the estate of the prin- 
 cipal from the time it is taken ; but binds the es- 
 tate of the surety only from the time judgment of 
 forfeiture is rendered.^ The filing of a transcript 
 of proceedings before a justice of the peace in bas- 
 tardy cases, in the circuit court, operates from the 
 time of filing as a lien upon the real estate of the 
 defendant, to the extent of the judgment which 
 may afterward be rendered against him.^] 
 
 Eecognizances taken by justices for the appear- 
 ance of prisoners, in the circuit or criminal court, 
 and docketed there ; and recognizances forfeited 
 before justices for the non-appearance of prisoners,^ 
 
 '[Ind. R. S., sec. 613.] 
 ' [Id., sec. 689.] 
 '[Id., sec. 922.] 
 * [Id., sec. 609.] 
 '5 [Id., sec. 1220.] 
 « [Id., sec. 987.] 
 '[Id., sec. 1631.] 
 
132 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 or on change of venue ;^ docketed in like man- 
 ner, operate as liens, from the date of the en- 
 try, upon all lands in the county of the parties 
 thereto.^ 
 
 6. Mortgages. — The statute has made the follow- 
 ing form sufficient : "A. B. mortgages and warrants 
 to C. B. (here descrihe the premises), to secure the re- 
 payment of (here recite the sum for which the mort- 
 gage is granted, or the note or other evidence of 
 debt, or a description thereof, sought to be secured, 
 also the date of re-payment). This implies a war- 
 ranty of a perfect title, and a warranty against all 
 incumbrances. Mortgages must be recorded within 
 forty-five days from their execution.* Ifo power 
 of sale can be reserved in a mortgage.* Satisfac- 
 tion of a mortgage may be entered on the margin 
 of the record, or may be effected by a separate re- 
 ceipt acknowledged and recorded as a deed.* The 
 record of an assignment of the mortgage is notice 
 to the mortgagor.^ 
 
 7. Leases. — Leases for a term not exceeding three 
 years, are good without deed.^ Leases for a longer 
 period are required to be acknowledged, or proved, 
 
 1 [Ind. R. S., sec. 1632.] 
 = [Id., sec. 1645.] 
 » [Id., sees. 2930, 2931.] 
 
 * [Id., sec. 1088. But may be intrust mortgages; Eaton, 
 etc. R. R. Co. V. Hunt, 20 Ind. 457.] 
 s [Id., sees. 1090, 1091 ; 
 «[Id., Laws 1877, p. 99'; R. S., sec. 1093.] 
 '[Id., sec. 2919.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 133 
 
 and recorded within forty-five days from the date 
 of their execution, in the same manner as deeds.* 
 
 8. Mechanics' liens. — Persons performing labor or 
 furnishing materials or machinery for any build- 
 ing, mill, distillery, or manufactory, may acquire 
 liens by filing their claims in the office of the re- 
 corder of the county within sixty days after the 
 completion of the work, etc., which may be enforced 
 by action in the circuit or superior court of the 
 county where the work was done or materials fur- 
 nished, within a year from the filing of the claim or 
 the expiration of the credit.^ 
 
 9. Liens created by city ordinances. — The statute 
 allows liens on town lots for grading, paving, or 
 planking the sidewalks,' and for the improvement 
 of the streets;* and for the making of levees, 
 drains, or breakwaters.^ 
 
 10. Insurance liens. — Mutual fire insurance com- 
 panies have a lien on the building insured, and the 
 land on which it stands, to secure the payment of 
 the deposit note.*] 
 
 IOWA. 
 
 [Sec. 106. 1. Taxes upon real estate are liens 
 from the first of ISTovember in each year, as between 
 vendor and purchaser.' 
 
 i[Ind. R. S, sec. 2931.J 
 
 ^ [Id., sees. 5293-5297; Acts 1883, ch. 115.] 
 
 '[Id., sees. 3357-3360.] 
 
 * [Id,, sec. 3366.] 
 
 '[Id., sec. 3106.] 
 
 «[ld., sec, 3758.] 
 
 '[Iowa Stat. 1880, sec. 853.] 
 
134 SEARCH FOR LIENS AND ABSTRACTINa THEM. 
 
 2. Doirer. — The widow is entitled to one-third in 
 value of all real estate in which the husband, at 
 any time during the marriage, had a legal or 
 equitable estate. 
 
 3. Curtesy. — The common law estate of curtesy 
 is abolished, but a widower is entitled to the same 
 interest in his deceased wife's lands as she would 
 have had in his.^ 
 
 4. Judgments and executions. — Judgments of the 
 circuit or district courts of the United States, ren- 
 dered in the state, become liens for ten years 
 from the date of judgment, by filing attested 
 copies of the same in the office of the clerk of 
 the state district coui't of the county in which the 
 land lies. 
 
 IsTo lien attaches in any county until the date of 
 filing such transcript, except in the county wherein 
 judgment was rendered, in which case, the lien at- 
 taches from the date of the rendition of the judg- 
 ment.^ 
 
 Judgments of the supreme, district, or circuit 
 courts of the state are liens for ten years from the 
 date of the judgment.^ If the laud lies in the 
 county where the judgment was rendered, the lien 
 attaches from the date of the rendition;^ if in an- 
 other county, from the time of filing an attested 
 copy of the judgment in the office of the clerk of 
 
 '[la. Stat. 1880, sec. 2440.] 
 
 ''[Id., p. 773, sec. 2; la. 17 G. A. Ch. 129.] 
 
 ='[Ia. Stat. 1880,860. 2882.] 
 
 * [Id., sec. 2883.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 135 
 
 the district court of the county where the land 
 lies.* Judgments for fines in criminal cases become 
 liens in the same way.^ 
 
 Judgments of justices of the peace become liens 
 from the time a transcript is filed in the oflice of the 
 circuit court.' 
 
 Judgments in bastardy cases are liens/ and un- 
 dertakings for bail in criminal cases.^ 
 
 Judgments of the superior courts in cities be- 
 come liens upon the real estate in the county in 
 which the city is situated, by filing a transcript in 
 the ofiice of the clerk of the circuit court. In 
 other counties, they are liens in the same manner 
 as judgments in the circuit and district courts.^ 
 
 5. Judicial proceedings. — Attachments on lands 
 are not notice, unless the sheriff making the levy 
 shall have entered them in the " encumbrancebook " 
 m the clerk's office of the county.'^ The levy of an 
 attachment and the service of a notice, in equita- 
 ble actions, supplemental to execution, create a 
 lien.' On partnership property, the lien daies from 
 the time it is taken possession of.^ 
 
 Bail undertakings are liens on the lands of the 
 
 '[la. Stat. 1880, sec. 2884.] 
 ''[Id., see. 4G09.] 
 '[Id., sees. 3567, 3568.] 
 *[Id., see. 4717.] 
 = [Id., sec. 4606.] 
 «[rd., p. 143, sec. 18.] 
 '[Id., sec. 3022.] 
 s [Id., sec. 2969.] 
 ' [Id., seo. 2974.] 
 
136 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 persons acknowledging them, from the time that 
 they are filed in the office of the clerk of the dis- 
 trict court. ^ 
 
 The defendant may redeem lands sold at judicial 
 sales within a year from the day of sale, and 
 is entitled to retain the possession in the mean- 
 time.^ 
 
 The purchaser is allowed twenty days after the 
 expiration of the full time of redemption to record 
 the evidence of his purchase.^ The rule is the 
 same on foreclosure.* 
 
 6. Lis pendens. — The filing of the petition creates 
 a lis jpendens? 
 
 7. Landlord's lien. — The landlord has a lien for 
 his rent upon all crops on the demised premises.^ 
 
 8. Mortgages. — Mortgages are constructive notice 
 from the date of filing.^ They are not deemed 
 lawfully recorded, unless previously acknow- 
 ledged or proved.' Since April 1st, 1861, deeds 
 of trust in the nature of a mortgage must be 
 foreclosed.' 
 
 9. Leases. — Leases for a term not exceeding one 
 
 1 [Ta. Stat., sec. 4606.] 
 '[Id., sec. 3102.] 
 ^ [Id., sec. 3125.] 
 * [Id., sec. 3321.] 
 5 [Id., sec. 2G28.] 
 « [Id., sec. 2017.] 
 '[Id,, see. 1941.] 
 "[Id., sec. 1942.] 
 »[Id., sec. 3318.] 
 
SEARCH FOE, LIENS AND ABSTRACTING THEM. 137 
 
 year are valid without writing.^ Those for a longer 
 period should be recorded.^ 
 
 10. Mechanics' Hems. — Claims for mechanics' liens 
 must be filed with the clerk of the district court of 
 the county within ninety days, by subcontractors 
 within thirty days, after the materials are furnished 
 or work done. The failure to file the same within 
 the time does not defeat the lien, except against pur- 
 chasers or incumbrancers in good faith, whose rights 
 accrued after the thirty or ninety days, and before 
 any claim for the lien was filed; but where a lien is 
 claimed upon a railway, the subcontractor has sixty 
 days from the last day of the month in which the 
 labor, etc., were done, to file his claim.' 
 
 11. Occupying claimants.^'] 
 
 KANSAS. 
 
 [Sec. 107. 1 'Taxes. — The lien for taxes attaches 
 on the first of Ifovember in the year in which they 
 are levied, and continues until paid.^ 
 
 2. Dower. — The common law estate of dower is 
 abolished.^ The widow is entitled to one-half 
 in fee of any legal or equitable real estate of 
 the husband, at any time during marriage, which 
 has not been sold on execution or at judicial 
 sale, or which is not necessary for the payment of 
 
 ' [la. Stat., sec. 3664.] 
 ^ [Id., sec. 1941.J 
 »[Id.,p. 59S, sec. 6.] 
 * [Id., sees. 1976-1987.] 
 ^[Kans. Corap. L. 1881, p. 956, sec. 85.] 
 5 [Id., p. 380, sec. 28.] 
 12 
 
138 SEARCH FOR LIESTS AND ABSTRACTING THEM. 
 
 debts, or of land of which the husband has made 
 a conveyance, when, at the time of the conveyance, 
 the wife has not or never has been a resident of the 
 state.' 
 
 3. Curtesy. — The estate by curtesy has also been 
 abolished. The husband has the same right in the 
 lands of his deceased wife as the wife would have 
 had in his, in case she had survived him.^ 
 
 4. Judgments and executions. — Judgments of courts 
 of the United States rendered in this state, and of 
 courts of record of this state, are liens on the real 
 estate of the debtor, within the county in which 
 the judgment is rendered, from the first day of the 
 term at which it is rendered. But judgments by 
 confession, and judgments rendered at the same 
 term during which the action was commenced, bind 
 the land only from the day on which such judgment 
 was rendered. 
 
 An attested copy of the journal entryof any judg- 
 ment, with a statement of the costs taxed against 
 the debtor in a case, filed in the ofEce of the clerk of 
 the district court of any county, creates a lien on 
 the real estate of the debtor within the county 
 from the date of filing the copy.^ 
 
 Judgments become dormant in five years.* Be- 
 tween judgments rendered at the same term there 
 is no preference, if executions are issued thereon 
 
 ' [Kans. Comp. L. 1881, p. 379, sec. 8.] 
 ^[Id.,p. 380, sec. 28.] 
 '[Id., p. 656, sec. 4] 9.] 
 * [Id., p. 660, sec. 445.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 139 
 
 during that term or within ten days after the terra.' 
 Fines and costs Tinder the dram sliop law are a lien 
 on the land of the defendant.^ 
 
 Land sold under judicial proceedings may be re- 
 deemed within two years from the day of sale.' 
 This limitation does not apply to any suit when the 
 plaintiff is the executor or administrator of the es- 
 tate of a deceased person, or when the suit is prose- 
 cuted for the pui'pose of foreclosing a mechanic's 
 lien, in which case there is no redemption.* 
 
 5. Judicial proceedings. — Attachments bind land 
 from the time of the service.^ 
 
 6. Trustee's expenses. — Trusts vesting a naked le- 
 gal estate in the trustee, without requiring the per- 
 formance of any duties by hira, are forbidden by 
 statute.* Their powers, duties, and compensation, 
 are regulated by statute.'^ 
 
 7. — Landlord's lien on the crop.^ 
 
 8. Mortgages. — l^To mortgage is valid, as to subse- 
 quent purchasers for a valuable consideration with- 
 out notice, unless recorded in the office of the 
 register of deeds in the county where the land 
 lies.' 
 
 ' [Kans. Comp. L. 18S1, p. 600, sec. 447.] 
 
 2 [Id., p. 388, sec. 18.] 
 
 = [Laws 1861, p. 241.] 
 
 * [Kans. Com. L., p. 799, sec. 1. Lands sold for taxes may 
 be redeemed within three years' from the day of sale. Id., 
 p. 963, sec. 127.] 
 
 ^ [Id , p. 623, sec. 206.] 
 
 « [Id., p. 990, sec. 13.] 
 
 '[Id.,pp. 989, 990.] 
 
 ^[Id., p. 521, sec. 24.] 
 
 ''[Id,,p. S.'iS, sec.2.] 
 
140 SEARCH FOR LIENS AND ABSTKACTIXG THEM. 
 
 Powers to sell land, in a mortgage or otherwise, 
 vest in the person entitled to the money .^ 
 
 Satisfaction of mortgages maybe entered on the 
 margin, signed by the mortgagee, or his attorney, 
 assignee, or personal representative, acknowledging 
 the satisfaction in the presence of the register of 
 deeds or his deputy, who must subscribe the same 
 as a witness, or by a receipt indorsed thereon, 
 signed by the mortgagee, his agent or attorney, 
 which maybe entered on the margin of the record.^ 
 
 A mortgage given by a purchaser to secure the 
 paj^ment of purchase money, has preference over 
 a prior judgment against such purchaser.^ 
 
 9. Leases. — Leases not exceeding one year are 
 valid without deed.* 
 
 10. 3Iechanics' liens. — The statute gives a lien on 
 any building or appurtenance of any building, 
 bridge, fence, railroad, or other work of internal 
 improvement, and the machinery, from the time 
 of making the contract, for any work done or ma- 
 terials furnished, if a claim is filed in the office of 
 the register of deeds within four months after the 
 furnishing of the materials or the completion of the 
 building; and allows twelve months from the same 
 time to bring an action to enforce the lien.^ 
 
 If any note, not exceeding twelve per cent inter- 
 est per annum, has been taken for any such labor 
 
 ' [Kans. Comp. L'., p. 990, sec. 18.] 
 
 ' [Id., p. 555, sec. 5.] 
 
 ^ [Id., sec. 4.] 
 
 *[Id.,p. 464, sec. 5.] 
 
 ^[Id., pp. 688, 689, sees. 630-633.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 141 
 
 or material, it will be sufficient to file a copy of the 
 note, with a sworn statement that it was given for 
 such labor, etc., in the office of the district clerk. ^ 
 
 In case a note is given, no lien can be enforced, 
 unless an action is commenced within a year from 
 the maturity of the note.^ 
 
 Subcontractors must file their claims within sixty 
 days after the completion of the work, etc.^ 
 
 11. Occwpyivg claimant's lien.'^l 
 
 KENTUCKY. 
 
 Sec. 108. 1. Taxes. — The commonwealth has a 
 lien for the revenue, railroad, turnpike, and county 
 tax on the estate of each person assessed for tax- 
 ation, which can not be defeated by gift, devise, 
 sale or alienation.' 
 
 2. Dower. — Dower exists in legal and equitable 
 estates, substantially, as at common law.^ 
 
 3. Curtesy. — Curtesy also exists as at common 
 law, except that the power of the husband to sell 
 or lease his life estate, and its liability to be taken 
 in execution for his debts, are restrained by stat- 
 ute.'' 
 
 ' [Kans. Comp. L., p. 6S8, sec. 630.] 
 
 2 [Id., p. 689, sec. 633.] 
 
 '[Id., p. 688, sec. 631.] 
 
 *[Id.,pp. 684-686.J 
 
 ^ [Ky. Gen. Stat. 1881, p. 709, sec. 2. Taxable estate is valued 
 as of the lOth of January, in the year listed. Persons owning 
 tho same on that day are bound for the taxes. Id. p. 720, sec. 
 11.] 
 
 «[Id., p. 527, sec. 2.] 
 
 '[Id., pp. 518,519. His contingent right of curtesy can not 
 be subjected to the payment of his debts during her life.] 
 
142 SEAECH FOR LIENS AND ABSTBAOTING THEM. 
 
 4. Jurlgments and executions. — A writ ot fieri facias 
 may be issued on any final judgment or decree of a 
 court of record, and binds tbe estate of the defend- 
 ant from the time it is delivered to the proper offi- 
 cer to execute.^ If lands sold on execution do not 
 bring two-thirds of the appraised value, the defend- 
 ant and his representatives have a right to redeem 
 them within a year from the day of sale, and to 
 retain possession until the year expires.^ A pur- 
 chaser at an execution sale of incumbered prop- 
 erty, has a lien on the property for the purchase 
 money, and interest at the rate of ten per cent, 
 per annum from the day of sale until paid, sub- 
 ject to the prior incumbrances.^ Judgments con- 
 fessed by insolvents to preferred creditors are void.* 
 Powers of attorney to confess judgment given be- 
 fore an action is instituted, are void.' Bonds for 
 the stay of execution, called forthcoming and re- 
 plevin bonds, returned by the officer to the proper 
 office, have the force and effect of a judgment." 
 
 5. Judicial proceedings. — An order of attachment 
 binds the defendant's property in the county, which 
 might be seized under an execution against him, 
 from the time of the delivery of the order to the 
 sheriff.'' An attachment has priority over trust 
 
 i[Ky. Gen. Stat. 1881, pp. 416, 417.] 
 
 ^[Id.,p. 427, sec. 4.] 
 
 '[Id., 43.5, see. l.J 
 
 * [Id., p. 490, sec. 1. Judgments suffered by debtors in con- 
 templation of insolvency, and with the design to prefer one or 
 more creditors, enure to the benefit of all creditors.] 
 
 Hld.,p. 238, sec. 1.] 
 
 "[Id., p. 425, sec. 1.] 
 
 ' [Ky. Code, 1876, sec. 212.] 
 
SEAECH FOR LIENS AND ABSTRACTING THEM. 143 
 
 deeds and mortgages not lodged for record.* In 
 cases of convictiou of felony, the party injured has 
 a lien on the estate of the criminal, from the time 
 of his arrest." 
 
 6. Decedent's debts. — The heir and devisee take 
 the estate subject to the ancestor's debts, but the 
 estate is not liable in the hands of a bona fide pur- 
 chaser for valuable consideration, if aliened by the 
 heir or devisee before suit is brought by the creditor.' 
 
 7. lAs pendens. — The ordinary doctrine of equity 
 upon this subject is followed in Kentucky.* 
 
 8. Landlord'' s lirn.^ 
 
 9. Mortgages. — ISo mortgage is effectual against 
 purchasers without notice, or any creditor, unless 
 recorded in the clerk's ofHce of the court of the 
 county in which the premises, or a greater part of 
 them, shall lie.' Mortgages, and deeds of trust in 
 the nature of mortgages, take effect from the time 
 they are lodged for record.' Mortgages made by 
 debtors in contemplation of insolvency, and with 
 design to prefer one or more creditors, inure to the 
 benefit of all creditors.' The cancellation of mort- 
 gages is effected by satisfaction being entered on 
 the margin of the record by the person entitled 
 
 ' [Laws 1861, chap. 371, sec. 13.] 
 '[Ky. Gen. Stat., p. 320, sec. 18.] 
 
 ' [Id., p. 489, sees. 5, 8. In such case the heh* or devisee is 
 liable.] 
 * [1 Stant. Ky. Dig., p. 758.] 
 » [Ky. Gen. Stat., p. 004, sec. 13.] 
 » [Id., p. 256, sec. 9.] 
 '[Id.,p. 256, sec. 11.] 
 8[Id.,p. 490, sec. 1.] 
 
144 SBAKCH FOB, LIENS AND ABSTKACTING THEM. 
 
 thereto, or by his personal representative, attested 
 by the clerk or his deputy.' 
 
 10. Leases. — Leases for more than one year must 
 be by deed.^ If for more than five years, the deed 
 is invalid against purchasers without notice, and 
 creditors, unless proved and lodged for record.' 
 
 11. Liens of mechanics. — Mechanics and material 
 men, supply men of railroads, rolling-mills, manu- 
 factures, or other establishments, have a lien on the 
 land for labor done and materials furnished.* 
 
 12. Occupying claimants.^ 
 
 MICHIGAN. 
 
 [Sec. 109. 1. Taxes — are a lien on the first of 
 December, and continue until paid.^ 
 
 2. Dower. — The widow is entitled to one-third of 
 all the lands of which the husband was seized of an 
 estate of inheritance at any time during marriage.'' 
 As against the mortgagee, and those claiming under 
 him, the widow is not entitled to dower out of land of 
 which a mortgage is given to secure the purchase 
 money, although she did not unite in the mortgage, 
 
 1 [Ky. Gen. Stat., p. 256, sec. 12.] 
 ^[Id., p. 2.55, sec. 2.] 
 
 2 [Id., p. 255, sec. 8.] 
 
 * [Claims for liens in favor of mechanics, laborers, and ma- 
 terial men, must be filed within sixtj' days from the completion 
 of the labor, etc., in the office of the clerk of the county court, 
 and an action must be commenced within six months from 
 theday of filing the claim. Id. p. 622, sees. G and 8- id. p. 982.] 
 
 5 [Id., p. 680, sees. 1-10.] 
 
 « [Mich. Pub. Acts 1882, p. 16, sec. 26.] 
 
 ' [Mich. Comp. Laws 1871, sec. 4269.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 145 
 
 but is etititled to dower therein as against all other 
 persons.^ 
 
 Dower is barred by joining with the husband in 
 a conveyance, or joining with him in a subsequent 
 deed, acknowledged in like manner,^ or by deed 
 executed by the wife alone to one who has there- 
 tofore acquired and then holds the husband's title, 
 if the intent to bar her right of dower is expressed 
 in the deed;* by jointure gettled on her, with her 
 assent, before marriage, provided it consists of a 
 freehold estate for the life of the wife, at least to 
 take effect in possession immediately after his 
 death, or by a pecuniary provision made for the ben- 
 efit of the intended wife, and in lieu of dower.* 
 Her separate estate is not liable for his debts.' 
 
 3. Curtesy. — Curtesy is abolished." 
 
 4. Judgments and executions. — A levy by execution 
 on real estate is not valid against bona fide convey- 
 ances, made subsequent to such levy, until notice 
 thereof is filed by the officer making the same in the 
 office of' the register of deeds of the county where 
 the premises are situated. Such levy is a lien only 
 from the time such notice is deposited.' 
 
 Executions have preference from delivery to the 
 
 ' [Mich. Comp. L. 1871, sec. 4272.] 
 ^ [Id., sec. 4281.] 
 ''[Mich. Pub. Acts 1877, p. 52.] 
 * [Mich. Comp. L., sees. 4282, 4284.] 
 ' [Id., sec. 4800.] 
 " [Tong V. Marvin, 15 Mich. 60.] 
 ' [Public Acts 1875, p. 3.] 
 13 
 
146 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 officer, as between each other.^ The same rule ap- 
 plies with reference to executions and attachments 
 against the property of the same person.^ But ex- 
 ecutions before justices of the peace have prefer- 
 ence, when actually levied, over any other execu- 
 tion or attachment, whether issued out of a court 
 of record or not.' 
 
 5. Judicial j^roceedivgs. — Attachments are a lien 
 on the laud from the time a certified copy of the 
 attachment, with a description of the real estate, 
 is deposited in the office of the register of deeds 
 in the county where the real estate is situated.* 
 
 6. Lis pendens. — !N"otice of the pendency of an 
 action in chancery, to the purchaser of real estate, 
 must be filed by the complainant with the register 
 of deeds of the county.^ 
 
 7. Redemption. — Ecal estate may be redeemed 
 within one year hj the person against whom an 
 execution is issued, or by his devisee, executor, ad- 
 ministrator, or grantee.^ 
 
 8. Drai7i anel ditch laws. — Taxes assessed under 
 these laws are a lien on the lands.'' Assessments 
 made on water-power companies, for defraying the 
 expenses of repairing, building, or making perma- 
 nent improvements on the same, are liens. These 
 
 ^ [Mich. Comp. Laws 1871 see. 6092.] 
 
 2 [Id., sec. 6093.] 
 
 ^ [Id,, sec. 6094.] 
 
 "[Pub. Acts 187.''), p. 183.] 
 
 ^ [Comp. Laws 1871, p. 1535, sec. 5065.] 
 
 "[Id., p. 1443, sec, 4640,] 
 
 ' [Id., sees, 1783, 1789; Public Acts 1881, p, 376.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 147 
 
 are in the nature of a mortgage, foreclosed and 
 collected in the same manner.' 
 
 9. Mortgages. — Mortgages are notice to subse- 
 quent purchasers, and incumbrances, from the time 
 of being filed for record.^ 
 
 Mortgages to be recorded must be attested and 
 acknowledged.^ 
 
 Satisfaction of a mortgage is made by entry in 
 the margin of the record, signed by the mortgagee 
 or his personal representative or assignee, acknowl- 
 edging satisfaction in the presence of the register 
 of deeds or his deputy, who must subscribe the 
 same as a witness ;* or by a certificate presented to 
 the register of deeds, executed by the mortgagee, 
 his personal representatives, or assigns, acknowl- 
 edged, approved, and certified, or upon the presen- 
 tation to such register of a certificate of the circuit 
 court of the county, signed by the judge, under 
 seal, certifying that it is made to appear to such 
 court that the mortgage has been paid.^ 
 
 10. Leases. — Leases for a longer period than one 
 year must be in writing.^ Agricultural leases for 
 a longer period than twelve years are prohibited.^ 
 Leases are void on conviction of the lessees of keep- 
 ing gaming houses or houses of ill fame.' 
 
 ' [ Comp. Laws 1871, p. 914.] 
 2 [Id., sec. 4231. J 
 ' [Id., sec. 4249.] 
 * [III, sec. 4243.] 
 s Id., sec, 4244.] 
 «[Id., sec. 4694.] 
 '[Const., art. 18, sec. 12.] 
 
 ['Comp. Laws, p. 2117. Void at the option of the lessor. 
 Id., sec. 1].] 
 
148 SEAKCH FOR LIENS AND ABSTRACTING THEM. 
 
 10. Mechanics' liens.— For work clone and ma- 
 terials furnished, niechanics, laborers, etc., have a 
 lion on the building and lot on which it stands. 
 The contractor, subcontractor, laborer, or material 
 man, must file in the office of the register of deeds 
 of the county a written notice, a copy of which 
 must be served on the owner or agent. The lien 
 continues for sixty days after the filing of the no- 
 tice, and no longer, unless an action is commenced. 
 The proceedings are by bill in chancery ; and no- 
 tice of lis pendens, filed with the register of deeds, 
 has the effect of continuing the lieu pending the 
 proceedings.^ 
 
 11. Occupying claimants.'^ 
 
 MINNESOTA. 
 
 [Sec. 110. 1. Taxes. — Taxes are a lien from, and 
 including the first of May, until paid; but, as be- 
 tween grantor and grantee, such lien does not at- 
 tach until the first of December of each year.* 
 
 2. Dower and cdrtesy. — The surviving husband or 
 wife is entitled to an undivided one-third, in fee- 
 simple, of the lands cf the other, of which he or 
 she was seized, at any time during coverture.* If, 
 at the time of the death of a married man or wo- 
 man, the surviving husband or widow has willfully, 
 and without cause, left the deceased person for the 
 space of one year immediately prior to such de- 
 
 ' [Public Acts 1879, pp. 274-279.] 
 "[Comp. Laws, sec. 62,54; Public Acts 1882, p. 35.] 
 = [Min. R. S. 1878, p 211, sec. 105.] ' 
 
 *[ld.,p. 565, sec. 3.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 149 
 
 cease, such survivor is not entitled to any estate in 
 the lands of the deceased.' 
 
 3. Judgments and executions. — Judgments for the 
 payment of money in the United States circuit or 
 district court, become a lien on the real property 
 of the debtor in the county in which the judgment 
 is rendered, from the time of docketing it, and 
 in any other county in the state upon filing in the 
 ofiice of the clerk of the distriet court of such 
 county a duly certified copy of such docket.^ 
 
 Judgments for the payment of money are a lien 
 on the real property for ten years. When the 
 judgment is docketed, it becomes a lien in any 
 other county than that in which it is rendered, from 
 the docketing of a transcript of the original 
 docket.' Transcripts of judgments before justices 
 of the peace for more than ten dollars become a 
 lien on the real estate, to the same extent as a 
 judgment of the district court, and upon filing 
 with the district court of any other county a 
 transcript of the original docket, in the same man- 
 ner as provided upon filing transcripts of judg- 
 ments in the district court. But no execution can 
 be issued thereon until an execution has been is- 
 by the justice of the peace, and returned unsatis- 
 fied, which must appear by the certificate of the 
 justice.* 
 
 1 [Min. R, S. 1878, p. 565, sec. 4] 
 ^[Id., p. 751, sec. 279.] 
 5 [Id., p. 751, sec. 277.] 
 *[Id., p. 686, see. 73.] 
 
150 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 Execution may be issued to enforce a judgment, 
 at any time within ten years after the entry of the 
 same.^ 
 
 Real property is not bound by a judgment 
 against an executor or administrator, nor liable to 
 be sold by virtue of an execution issued upon such 
 judgment.^ 
 
 A judgment obtained against the heir person- 
 ally for a debt, is a lien on the real estate ; but, 
 when the property is aliened to a bona fide pur- 
 chaser, before action brought, it is not a lien on 
 the property. The heir, in that case, is personally 
 bound ^ 
 
 4. Jadicial proceedings. — Attachments bind the 
 land from the time a certified copy of the attach- 
 ment has been delivered for record in the office of 
 the register of deeds in the county where the land 
 is situated.* 
 
 6. Urdemplion. — "Where real estate is sold under 
 execution, judgment, or decree, the judgment 
 debtor, his heirs, orassigns, may redeem within one 
 year after the day of sale, by paying to the pur- 
 chaser the amount of his bid, with interest at the rate 
 of seven per cent, per annum ; and, if the purchaser is 
 a creditor having a prior lien, the amount thereof, 
 with interest. If no such redemption is made, the 
 senior creditor may redeem within five days after 
 
 ' [Min, R. S., p. 753, sec. 293.] 
 '[Id., p. 825, sec. 4.] 
 ='[Id., p. 82S!, sees. 27, 28.] 
 *LId.,p. 731, sec. 160.] 
 
SEARCH FOE LIENS AND ABSTRACTING THEM. 151 
 
 the expiration of said year, and each subsequent 
 creditor within five days after the time allowed 
 all prior lien holders, by paying the amount afore- 
 said; but no creditor can redeem, unless within 
 the year he files notice of his intention in the office 
 of the clerk of the court where judgment is en- 
 tered.^ 
 
 6. Lis pevdens. — The notice of pending actions 
 filed in the oflice of the register of deeds is notice 
 to purchasers and incumbrancers.^ 
 
 7. Mortgages. — Mortgages are notice from the 
 time of being filed for record. They can not be 
 recorded unless properly executed.' Satisfaction 
 of a mortgage is made by an entry on the margin.* 
 
 The record of the assignment of a mortgage is 
 not notice of such assignment to the mortgagor, 
 his heirs, or personal representatives, so as to inval-- 
 idate any payment made by them to the mort- 
 gagee.^ 
 
 S. Leases. — Leases for more than one year must 
 be in writing." A lease for a term exceeding three 
 years is a " conveyance," under the statute requir- 
 ing the formalities of deeds in its execution.^ 
 
 Distress for rent is abolished in this state.^ 
 
 1 [Min. R. S., p. 7.59, sec. 324.] 
 
 '[Id., 
 
 p. 819, sec. 
 
 34.] 
 
 2 [Id., 
 
 , p. 152, sec. 
 
 184.] 
 
 ♦[Id. 
 
 , p. 150, sec. 
 
 , 177.] 
 
 ' [Id., 
 
 , p. 538, sec. 
 
 24.] 
 
 «[Id, 
 
 , p. 543, sec. 
 
 12.] 
 
 '[Id., 
 
 p. 538, sec. 
 
 26.] 
 
 «[ld.. 
 
 , p. 820, sec. 
 
 39.] 
 
152 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 9. Trustees' expenses. — Trustees have a lien on the 
 estate for their expenses, cliarges, etc.^ 
 
 10. 31echamcs' liens. — Mechanics, material men, 
 etc., must file their claims within sixty days after 
 the time of performing their lahor, etc., in the office 
 of the recorder of deeds, and have one year from 
 the commencement of such labor to bring an ac- 
 tion f which is enforced in the same manner as ac- 
 tions for the foreclosure of a mortgage.* If the 
 contractor enters into a bond with the owner for 
 the use of all persons who may do work or furnish 
 materials, conditioned for the payment of all just 
 claims for such work, etc., as they become due, and 
 files the same in the ofiice of the register of deeds of 
 the county in which the contract is to be performed, 
 no lien can attuoh in favor of the persons therein 
 mentioned; but such bond can not operate to re- 
 lieve from liability the property upon which the 
 labor, etc., is performed, unless a notice setting 
 fo2-th the existence of the bond be conspicuously 
 posted about the premises during the performance 
 of the labor, and at the time of furnishing the ma- 
 terial.* Mechanics, clerks, etc., have a lien for 
 their wages upon the works, manufactory, busi- 
 ness, etc., of their employers, for a period not 
 exceeding six months, immediately preceding 
 the transfer of such works, etc., and must file 
 
 • [Min. R S., p. 550, sec, 9.] 
 '[Id , p. 872, sec. 6.] 
 
 » [Id., p. 87.3, sec. 8.] 
 
 * [Id., p. 872, sec. 3.] 
 
SEARCH FOR LIEKS AND ABSTRACTINa THEM. 153 
 
 their claims within one month after they become 
 due.' 
 
 n. City ordinance. — Eor grading streets, con- 
 structing and repairing sidewalks and alleys, by 
 order of the city council, a lien is created on the 
 lots of owners benefited thereby, as in case of city, 
 county, and state taxes.^ And on village property 
 for the construction and repair of sidewalks.^ 
 
 12. Drainage lair. — A lien on lands drained is 
 created by filing the assessment in the ofiice of the 
 register of deeds of the county.* 
 
 13. Crops of grasshopper sufferers. — A lien on the 
 crops of grasshopper sufferers, in favor of the 
 state, is created by filing the contract which the 
 applicant has made to pay for the grain.' 
 
 NEBRASKA. 
 
 [Sec. 111. 1. Taxes. — Taxes on real property are 
 a lien from and including the 1st of April in the 
 year in which they are levied until paid.' 
 
 Municipal taxes, and special assessments upon 
 real estate in cities of the first class, are a perpetual 
 lien from the day on which the same were levied, 
 and persons or corporations purchasing real estate 
 for any tax or assessment so levied, shall, after the 
 
 • [Min. E. S., p. 876, sec. 22.] 
 
 2 [Id., p. 203, sec. 190.] 
 
 ^[Id.,p. 209, sec. 222.] 
 
 *[Id.,p. 1019, sec. 55.] 
 
 '[Id., p. 1029, sec. 109.] 
 
 1 [Comp. Stat. 1881, p. 426, sec. 138.] 
 
154 SEAKCH FOR LIENS AND ABSTKACTING THEM. 
 
 ]apse of fivo years from tlie time of recording tlie 
 treasurer's deed therefor, have a complete title.' 
 
 2. Doioer. — The widow is entitled to one-third 
 of all the lands of which her husband was seized 
 of an estate of inheritance at anytime during mar- 
 riage.^ Out of lands mortgaged to secure the pay- 
 ment of the purchase money, the widow is not en- 
 titled to dower as against the mortgagee.^ 
 
 The widow is barred of her dower by joining in 
 a deed with her husband, or by a subsequent deed, 
 acknowledged in like manner ; by jointure, or by a 
 pecuniary provision in lieu of dower.* Her alien- 
 age will not bar her right of dower.' 
 
 3. Curtesy. — When husband and wife are seized 
 of any estate of inheritance in lands, the husband, 
 on the death of his wife, holds the lands for his life 
 as tenant by the curtesy. But if the wife, at her 
 death, had issue by a former husband, to whom the 
 estate might descend, such issue takes the same, 
 discharged of the right of the surviving husband 
 to hold it as tenant by the curtesy.^ 
 
 4. Judgments arid executions. — Judgments are liens 
 on the lands of the judgment debtor for five years, 
 after which they become dormant.'' 
 
 ^ [Comp. Stat. 1S81, p. 92, sec. 38. Taxes on railroad prop- 
 erty are a lien from the first day of March of each year. Id., 
 p. 439.] 
 
 ^[Id.,p. 212. sec. 1.] 
 
 "[Id., sees. 3, 4.] 
 
 *[Id., p. 213, sees. 12, 13, 15.] 
 
 ^[Id., p. 214, sec. 20.] 
 
 "[Id., p. 215, sec. 29.] 
 
 ' [Id., p. 591, sec. 4S2. Unless execution is issued within 
 five years.] 
 
SEAECH FOR LIENS AND ABSTRACTING THEM. 155 
 
 Real estate is bound by a judgment from the first 
 day of the term at which it is rendered. But judg- 
 ments by confession, and judgments rendered at the 
 same term at wliich the action is commenced, bind 
 tlie lands only from the day on which they are ren- 
 dered. All other lands are bound froni the time 
 they are seized in execution.^ If execution is not 
 issued within five years from the date of any judg- 
 ment, or if five years intervene between the date 
 of the last execution issued, and the time of issuing 
 another, the judgment becomes dormant.^ 
 
 The transcript of a judgment rendered in the 
 probate court, and filed in the ofiice of the clerk 
 of the district court, is a lien on the real estate in 
 the county where the same is filed.* The laws upon 
 this subject are similar to those of Ohio, to which 
 reference is made. 
 
 A judgment loses its preference when an execu- 
 tion is not taken out within five years after its ren- 
 dition.* 
 
 Transcripts of justices of the peace, filed in term 
 time, are a lien on the real estate of the judgment 
 debtor from the day of filing in the district clerk's 
 office. When filed in vacation, as against the judg- 
 ment debtor, it is a lieu from the day of filing; 
 and as against the subsequent judgment creditors, 
 from the first day of the next term.' 
 
 ' [Comp. Stat., p. 590, sec. 477.] 
 ^[Id.,p. 591, sec. 482.] 
 '[Id., p. 207, sec. 18.] 
 *[Id.,p. 597, sec. 509.] 
 ' [Ids, p. 604, sec. 562.] 
 
156 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 5. Judicial proceedings. — The laws are similar to 
 those of Ohio. Where there are several orders of 
 attachments before justices of the peace against the 
 same person, in the hands of the same officer,they 
 must be executed in the order in which they are 
 received.^ 
 
 6. Lis pendens. — "When summons is served or 
 publication made, the action is pending to charge 
 third persons with notice.^ 
 
 7. Redemption. — Redemption from the lien on an 
 execution or sale may be made at any time before 
 the sale is confirmed by the court, by paying the 
 amount of the decree or judgment, with interest 
 and costs. In case the real estate is sold to any 
 one not a party plaintifl' to the suit, the person re- 
 deeming must pay to the purchaser twelve per cent 
 interest on the amount of the purchase price, from 
 the day of sale to the day of redemption, or deposit 
 the same with the clerk of the court where the de- 
 cree or judgment was rendered.^ 
 
 8. Mortgages. — Mortgages are notice to subse- 
 quent purchasers and incumbrancers from the time 
 they are delivered to the clerk for record.* Deeds 
 intended as mortgages, though absolute in terms, 
 are considered as mortgages.' 
 
 Mortgages are discharged by an entry in the 
 
 ' [Comp. Stat., p. 636, sec. 931.] 
 
 ^[Id., p. 541, sec. 85.] 
 
 = [Id., p. 595, sec. 497a.J 
 
 *[Id.,p. 389, sec. 16.] 
 
 ' [" Every deed conveying real estate, which by any other in- 
 strument in writing shall appear to have been intended only 
 as a security in the nature of a mortgage, shall be considered 
 as a mortgage." Id., p. 390, sec. 25.] 
 
SEARCH FOE LIENS AND ABSTRACTING THEM. 157 
 
 margin of the record, signed by the mortgagee, or 
 his personal representative or assigns, acknowl- 
 edging the satisfaction in the presence of the 
 county clerk or his deputy, who must subscribe the 
 same as a witness ; or, by a certificate executed by 
 the mortgagee, his personal representative or as- 
 signs, acknowledged or proved and certified, which 
 certificate must be recorded.^ 
 
 9. Leases. — Leases exceeding one year must be 
 in writing.^ 
 
 10. Mechanics' liens. — Mechanics, laborers, and 
 material men, have alien on the structures erected, 
 repaired, and the materials furnished by them. 
 They must file their claims within four months from 
 the performance of the woi'k, etc. The lien con- 
 tinues for two years from the commencement of the 
 labor, etc. Laborers on railroads, bi'idges, canals 
 and ditch companies, have -a lien on the work for 
 labor done and materials furnished. They must file 
 their claims within ninety days, and subcontractors 
 within sixty days, from the day on which the last of 
 the material was furnished or labor performed, pro- 
 vided that, when a lien is claimed upon a railway, a 
 subcontractor shall have sixty days from the last day 
 of the month in which the labor, etc., was done, in 
 which to file his claim. Such lien continues for two 
 years, and, when suit is brought, the lien continues 
 until the suit is determined.' 
 
 11. Occupying claimants.*'] 
 
 ' [Comp. Stat., p. 391, sees. 26, 27.] 
 
 =i[Id.,p, 287, sec. 5.] 
 
 '[Laws, ISSI, pp. 259-269. Comp. Stat. pp. 343-347.] 
 
 *[Comp. Stat, pp. 365-367.] 
 
158 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 NEW YORK. 
 
 [Sec. 112. 1. Bower. — A widow is entitled to a 
 third of all the lands of which her husband was 
 seized of an estate of inheritance at any time dur- 
 ing marriage. The widow of an alien, who, at the 
 time of her husband's death is entitled by law to 
 hold real estate, if she is an inhabitant of the state 
 at the time of such death, is entitled to dower. 
 
 A widow is not entitled to dower out of lands 
 mortgaged to secure the payment of the purchase 
 money, as against the mortgagee or those claiming 
 under him, although she did not unite in the mort- 
 gage, but is entitled to dower as against all other 
 persons,^ and one-third of the surplus for life after 
 paying the mortgage.^ A widow is barred of dower 
 in case of divorce for her misconduct; by jointure, 
 to which she must assent ; by a pecuniary provision 
 in lieu of dower, assented to by her.' 
 
 The wife's separate property is free from the 
 control of her husband, and not liarble for his 
 debts.^ 
 
 2. Curtesy exists as at common law. It may be 
 defeated by the wife conveying her lands to a third 
 person during coverture.' 
 
 3. Judgments and executions. — Judgments dock- 
 eted in the county clerk's office are a charge for 
 ten years after filing the judgment roll upon the 
 
 i[N. Y. R. S., vol. 3, p. 2197, sees. 1, 2, 5.] 
 
 ^^ [Id., sec. 6.] 
 
 = [Id., sees. 8, 9, 11.] 
 
 *[Id., p. 2338.] 
 
 ^ [Clark V. Clark, 24 Barb. 581.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 159 
 
 real estate in the county. Judgments become liens 
 when docketed.^ The time during which a judg- 
 ment creditor is stayed by injuction, appeal, or by 
 express provision of law, from enforcing a judg- 
 ment, is not a part of the ten years.^ 
 
 The interest of a person holding a contract for 
 the purchase of real estate is not bound by the 
 docketing of a judgment, and can not be levied 
 upon or sold by virtue of an execution issued upon 
 the judgment.' 
 
 Where real property is sold, and, at the same 
 time, a mortgage is given to secure the payment 
 of the purchase money, the lien of a mortgage 
 upon the property is superior to the lien of a pre- 
 vious judgment against a purchaser.'' 
 
 The party recovering a final judgment, or his 
 assignee, may have execution thereon within five 
 years after the entry of the judgment.^ After the 
 lapse of five years from the entry of a final judg- 
 ment, execution can be issued in one of the follow- 
 ing cases only : 1. Where an execution was issued 
 within five years after the entry of a judgment, 
 and returned wholly or partly unsatisfied. 2. 
 Where an order is made by the court, granting 
 leave to issue an execution.^ 
 
 1 [N. Y. Code of Civil Procedure, sees. 1250, 1251.] 
 
 ^ [Id., sec. 1255,] 
 
 '[Id., sec. 1253.] 
 
 * [Id., sec. 1254] 
 
 5 [Id., sec. 1375,] 
 
 "[Id., sec. 1377.] 
 
160 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 Jndgmeiits before justices of the peace are not a 
 lien on, and can not be enforced against, real prop- 
 erty, unless for $25 or more, exclusive of costs. A 
 justice of the peace may issue execution at any 
 time within five years after entry of judgment, "un- 
 less it has been docketed in the county clerk's of- 
 fice. When a transcript of a justice of the peace 
 is filed with the county clerk, it becomes a lien, as 
 does the docketing of a judgment in another 
 count}^' 
 
 The docket of a judgment must be discharged by 
 the clerk in whose ofiice the judgment roll is filed, 
 upon filing with him a satisfaction piece. A satis- 
 faction piece must be executed by the party in 
 whose favor the judgment was rendered, or his ex- 
 ecutor or administrator ; or, if made within two 
 years after filing the judgment roll, by the attorney 
 of record of the party. If the judgment is as- 
 signed and the assignment is filed, the satisfaction 
 piece is executed by the assignee, his executor or 
 administrator. If by an attorney in fact, then the 
 instrument containing the power must be filed with 
 the satisfaction piece, unless recorded already. 
 The execution of each satisfaction piece or power 
 of attorney must be acknowledged before the 
 clerk or deputy and certified b}' him, or acknowl- 
 edged and certified in like manner as a deed, and 
 recorded.^ 
 
 Judgments on arbitrations have the same force, 
 
 ^ [Code of Civil Procedure, sees. 3017, 3022, 3024.] 
 ''[Id., see. 1260.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 161 
 
 and are subject to tlie same provisions, as judg- 
 ments in actions.' 
 
 Uncollected lines of jurors in New York City, 
 and in New York and King's counties, when dock- 
 eted, may bo enforced as judgments, beings liens 
 upon the real property of the person fined.^ 
 
 4. Lis peyidens. — Notice of the peudencj' of an 
 action must be filed in the clerk's office, when the 
 action afl'ects real estate. Such notice may be filed 
 with the complaint before service of summons; but 
 in that case, personal service of the summons must 
 be made upon defendant sixty days after filing no- 
 tice, or else, before the expiration of the same time, 
 publication of the summons must be commenced or 
 service made, or service made without the state. 
 Where the defendant sets up a counter claim, a 
 similar notice of lis pendens may be given.^ 
 
 5. Redemption. — Lands may be redeemed within 
 one year from the sale of real estate by paying to 
 the purchaser, his executor, administrator, or as- 
 signee, the sum of money paid upon the sale, with 
 interest from the day of sale at the rate of ten per 
 cent. Redemption may be made either by the 
 judgment debtor, whose right and title were sold, 
 or by his heir, devisee, or grantee. Creditors may 
 redeem within three months after the expiration of 
 the year.* 
 
 ■ [Code of Civil Procedure, sec. 2380,] 
 ''[Id., sees. 1117,1156.] 
 = [Id., sees. 1670-1673.] 
 
 * [Code of Civil Procedure, sees. 1446-1449.] 
 14 
 
3 62 SEAECH rOR LIENS AND ABSTKACTING TIIEM. 
 
 6. Mortgages. — Mortgages are void as against 
 subsequent purchasers in good faith whose convey- 
 ance is first duly recorded." 
 
 ISTo mortgage is construed as implying a covenant 
 for the payment of the sum intended to be secured, 
 unless there is an express covenant to that effect. 
 The remedies of the mortgagee in such case are 
 confined to the land mentioned in the mortgage.^ 
 
 A mortgage is discharged by the officer on re- 
 ceiving a certificate signed by the mortgagee, his 
 personal representatives or assigns, acknov?ledged 
 or proved, and certified. Such certificate must be 
 recorded.' 
 
 Deeds absolute in terms, though intended as 
 mortgages, are considered as mortgages.* The re- 
 cording of the assignment of a mortgage in not 
 deemed in itself notice of such assignment to the 
 mortgagor, his heirs or personal representatives, so 
 as to invalidate any payment made by them to the 
 mortgagee.' 
 
 7. Leases. — Leases for a longer period than one 
 year must be in writing." 
 
 Leases for life must be subscribed and sealed. 
 If not duly acknowledged previous to delivery, their 
 execution must be attested by at least one witness. 
 
 i[R. S., vol. 3, p. 2215.] 
 ^[Id., p. 2195, sec. 139.] 
 = [ld,p. 2220,8608. 28, 29.] 
 
 * [Id., p. 2216, 860. 3. The intention must appear by some 
 other instrument in writing.] 
 5 [Id., p. 2222, sec. 41.] 
 «[Id., p. 2326, sec. 8,] 
 
SEARCH FOE, LIENS AND ABSTRACTING THEM. 163 
 
 If not SO attested, they shall not take eiFect against a 
 purchaser or incumbrancer until so ackuowledged.^ 
 
 A special power may be granted to a tenant for 
 life to make leases for not more than twenty-one 
 years, and to commence in possession during life. 
 This power is not assignable as a separate interest, 
 but is annexed to his estate, and passes unless spe- 
 cially excepted.^ 
 
 A building destroyed or injured by the elements 
 or any cause so as to be untenantable, exempts the 
 lessee from rent, unless otherwise expressly pro- 
 vided.' 
 
 The grantees of demised premises or the re- 
 version thereof, the assignees of the lessors, and 
 their heirs and personal representatives, grantees, 
 and assigns, have the same remedies, by entry, dis- 
 tress, orotherwise,forthe non-performanceof agree- 
 ments, as the grantors or lessors.* And so the les- 
 sees and assigns have the same remedies against the 
 lessor, his grantees, assigns, and their representa- 
 tives, for the breach of any covenant, as the lessee 
 might have had against his immediate lessor, except 
 covenants against incumbrances or relating to the 
 title or possession of the premises demised.' 
 
 ' [R. S., vol. 3, p. 2194, sec. 337, The provision with refer- 
 ence to the recording of leases for life or for years is not ex- 
 tended to the counties of Albany, Ulster, Sullivan, Herkimer, 
 Dutchess, Columbia, Delaware, and Schenectady. Id., p. 2222, 
 sec. 42.] 
 
 " [R. S., vol. 3, p. 2190, sees. 87, 88.] 
 
 = [Id.,p. 2203, sec. l.j 
 
 *[Id., sec. 23.] 
 
 '[Id., sec. 24.] 
 
164 SEARCH FOB. LIENS AND ABSTKACTING THEM. 
 
 8. Decedent's debts.— "IhQ conveyance of real es- 
 tate does not affect the title of a purchaser or mort- 
 gagee in good faith from the heir or devisee of de- 
 cedent, unless administration is granted upon 
 petition within four years after his death. The 
 grantee takes free from any claim of the widow for 
 dower, which is not assigned to her, but subject to 
 subsisting charges thereon by judgment, mortgage, 
 or otherwise, which exist at the time of his death.* 
 
 9. 3Iechavics' liens. — In all counties, except 
 King's, Queen's, ISTew York, Onondaga, Rensse- 
 laer, and the city of Buffalo, persons performing 
 labor in erecting or repairing any liouse, building, 
 or appurtenance to any house, building, or building 
 lot, including fences, sidewalks, pavements, wells, 
 fountains, fish-ponds, fruit and ornamental trees, 
 and every improvement whatever made upon the 
 same, have a lien on the building, lot, etc. Their 
 claims must be filed within sixty days from the 
 performance of the labor in the clerk's office iu the 
 county where the property is located. The lien 
 continues until the expiratian of one year, and if 
 proceedings are commenced within the 3'ear, until 
 judgment is rendered, and one year thereafter. 
 The action may be commenced in the supreme 
 court of the county (after filing notice) in which 
 the property is situated, or in the county court, 
 when the amount exceeds fifty dollars. When 
 the amount of the lien is two hundred dollars or 
 under, the action may be commenced before a jus- 
 
 ' [N. Y. Code Civil Procedure, sees. 2777, 2778.] 
 
SEARCH FOR LIENS AND ABSTRACTING!- THEM. 165 
 
 tice of the peace of the town or city ia which the 
 premises are located.' 
 
 Ia I^ew York city and county, persons perform- 
 ing labor upon, or furnishing materials to be used 
 in the construction, alteration, or repair of any 
 building, vault, wharf, fence, and any other struc- 
 ture, shall have a lien on the same, and also for 
 grading, filling in lots, sidewalks or streets in front 
 of such lots. These liens have precedence over 
 those taken by an original contractor, and the liens 
 of laborers, mechanics, or other persons furnishing 
 materials to any contractor or subcontractor, take 
 precedence of liens of contractors, and are pre- 
 ferred to any lien or other incumbrance of which 
 the lien holder had no notice, and which was unre- 
 corded at the time of filing the claim. ^ The claim 
 must be filed with the county clerk within sixty 
 days by the original contractor, and by other persons 
 within thirty days from the completion of the con- 
 tract, and continues for ninety days thereafter. Un- 
 less an action is brought within the ninety days after 
 filing the claim, and notice of the pendency of the 
 action is filed with the county clerk, the lien ceases.^ 
 
 In King's and Queen's counties, the contractor 
 or subcontractor must serve notice upon the county 
 clerk, specifying the amount claimed, etc., within 
 three months after the performance of the labor, a 
 copy of which must be served ou the owner. The 
 lien continues for one year.* 
 
 '[R. S., vol. 3, pp. 2411-2413.] 
 ='[I(l.,p. 2418, sees. 1,2,4.] 
 '[Id., sees. 5,8.] 
 *[ia., pp. 2421-2423.] 
 
166 SEAECII FOE LIENS AND ABSTRACTING THEM. 
 
 In Rensselaer county, notice in writing must be 
 served upon the town clerk, and if the property is lo- 
 cated in a city, upon the clerk of the county, within 
 thirty days after the performance of the labor. 
 "When filed, notice must be served upon the owner 
 or his agent, personally, within five days thereafter. 
 The lien continues for five years.^ 
 
 In Onondaga county, persons performing labor, 
 etc., to the amount of twenty dollars, shall have 
 an equitable lien upon the property for three 
 months. As against the owner, no notice is neces- 
 sary. As against all other persons, notice of the 
 claim must be filed within three months after the 
 labor is performed with the clerk of the county.^ 
 
 In Buffalo city, original contractors must, within 
 four mouths after the completion of their contract, 
 and all others within sixty days, file their claims 
 with the county clerk of Erie county. All persons 
 except the original contractor must serve a copy 
 of such claim upon the owner within ten days after 
 filing bis claim with the county clerk. The lien 
 continues for one year after the claim is filed, un- 
 less within that time an action is commenced, and 
 notice of its pendency is filed with the county 
 clerk.3] 
 
 '[K. S., vol. 3, pp. 2424-2428.] 
 
 ^ [Id., p. 2429.] 
 
 ^ [Id., p. 2431, sees. 5-8. Mechanics' liens on public works 
 in the cities of the State of New York, are created by tiling 
 the claims within thirty days after completion of labor, 
 and commencing an action within ninety days, and filing 
 notice of its pendency with the financial officer of the cily. 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 167 
 OHIO. 
 
 Sec. 113. 1. Taxes — duethestateai'ealienon all 
 real property subject to such tax, from the clay pre- 
 ceeding the second Monday of April, annually, 
 ■which continues until the tax is paid.' Agents, 
 guardians, and executors paying taxes, have a lieu 
 on the land for such payments.^ Lien holders pay- 
 ing taxes to preserve their liens, acquire, to the ex- 
 tent of the payment, a lien preferable to all other 
 liens.' Purchasers of tax titles have a lien, in case 
 of redemption, or in case of the failure of the tax 
 title, for all taxes paid, interest, penalties, and im- 
 provements bona fide made.'' 
 
 2. Dower. In Ohio, the widow is dowable of 
 one-third of all lands of which her husband was 
 seized as an estate of inheritance atauy time during 
 the coverture, and, upon the termination of the prior 
 estate, of all lands held by him at his decease in fee 
 
 Id. pp. 2436, 2437. The provisions of the act apply to work 
 on wharves, piers, bulkheads, and bridges. Id., p. 2439, 
 sec 1 . Laborers on railroads also have a lien on the road 
 by filing their claims within thirty days after the perform- 
 ance of their labor. The lien continues for one year, and 
 when judgment is obtained, it is a, lien upon the railroad 
 and the realty to the extent of other judgments. Id., p. 2439. 
 Laborers on oil wells must file their claims within sixty days 
 after the performance of their contract, which continues for 
 six months from the time of filing notice ; and if action is 
 brought and judgment rendered, one year thereafter, or one 
 year after the determination of an appeal. Id., p. 2440.] 
 
 1 [R. S. Ohio, sec. 2S38.] 
 
 ^[Id., sec. 28.'il.] 
 
 ' [Id., sec. 2853.] 
 
 * rid., sees. 2880, 2896.] 
 
168 SEARCH FOE, LIENS AND ABSTRACTING THEM. 
 
 simple, in remainder, or in reversion, and of all 
 lands whicli the husband at the time of his de- 
 cease held by bond, article, lease, or other evidence 
 of claim.^ The right to dower is forfeited if the 
 wife elopes with a paramour,^ or is divorced for 
 her own misconduct f and is barred by a jointure, 
 legal or equitable,^ and by her uniting with her hus- 
 band as grantor in a deed of his lands.' She is not 
 dowable of lands purchased with partnership funds 
 for partnership purposes, nor, as against the ven- 
 dor of lands, the purchase money of which is un- 
 paid." 
 
 3. Curtesy. — The common law estate by the cur- 
 tesy of England, which entitled the husband upon 
 the birth of issue, alive and capable of inheriting 
 the estate, to the rents and profits of the wife's 
 lands for his life, has been modified by statute. The 
 right of the husband to dispose of the rents and 
 profits, by making leases or creating incumbrances, 
 is altogether taken away during the life of the wife, 
 and the life of the issue of her body; nor, during 
 that period, can the estate be taken in execution 
 for the debts of the husband f and the husband's 
 right is perfect by the marriage alone, irrespective 
 
 1 [ R. S, Ohio, sec. 4188.] 
 ^ [Id., see. 4192.] 
 3 [Id., sec. 5700.] 
 ^ [Id., sec. 4189.] 
 5 [Id., sec. 4107; 80 O. L. 79.] 
 
 " [Id. ; Greene v. Greene, 1 Ohio, 535; Welch v. Buckins et 
 al., 9 Ohio St. 331. J 
 
 ' [R. S. Ohio, sec. 3108.] 
 
SEAECH FOE LIENS AND ABSTKACTINS THEM. 169 
 
 of the birth of issue. ^ It is liable to forfeiture for 
 non-payment of taxes.^ 
 
 4. Judgments and executions. — The judgments of 
 the circuit court of the United States are liens on 
 all lands of the judgment debtor within the dis- 
 trict.' The lands of the debtor within the county 
 where the judgment of the state courts of record 
 is entered, are bound from the first day of the term 
 at which judgment is rendered, except judgments 
 by confession and judgments rendered at the same 
 terms at which an action is commenced, which 
 bind the lands only from the day on which the 
 judgments are rendered. All other lands are 
 bound from the time they are seized in execution.* 
 Permanent leaseholds, renewable forever, are bound 
 in like manner as estates in fee.' The judgment 
 remains, as against all other persons than judgment 
 creditors, a lien for five years from the date of the 
 judgment, and, by the issuance of successive exe- 
 cutions, may be kept alive, from five years to five 
 years, forever.* Between judgments against the 
 same debtor, rendered at the same term, there is 
 no preference, if executions are issued thereon 
 within ten daj^s after the term.'^ 'So judgment on 
 
 ' [Harkness v. Corning, 24 Ohio St. 416.] 
 ^ [R. S. Ohio, sec. 2852.] 
 ' [Lawrence r. Belger, 31 Ohio St. 175.] 
 *[R. S.Ohio, fee. 5375.] 
 
 ^ [Northern Bank of Ky. v. Roosa et al., 13 Ohio, 335.] 
 " [R. S. Ohio, sec. 5380.] 
 ' [Id., sec. 5382.] 
 15 
 
170 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 which execution has not been taken out and levied 
 before the expiration of a year next after its rendi- 
 tion, operates as a lien to the prejudice of any 
 bona file jmlgmeut creditor.^ The junior judgment 
 creditor will, in such cases, by levying first, obtain 
 priority.^ If the cause is removed to an appellate 
 court, the lien is preserved until a year after the 
 first day of the term of the court of common pleas 
 to which the special mandate to carry the judg- 
 ment into effect maybe directed, or, if the mandate 
 be entered on the journal in vacation, after it is so 
 entered.^ Where the omission to take out execu- 
 tion and levy is occasioned by an appeal, writ of 
 error, injunction, or a vacancy in the office of the 
 sheriff and coroner, or the inability of the officer, 
 the time so covered shall be excluded.* Executions 
 may issue from any court of record to any county 
 in the state ^ Levies made under such writs, 
 called, in Ohio, foreign executions, are entered on 
 the foreign execution docket, in the office of the 
 sheriff" of the county to which they are directed. 
 The entry of a levy in this book is notice to man- 
 kind. The lands are bound by the levy. A judg- 
 ment of the supreme court for money binds the 
 lands of the debtor within the county in whichthe 
 suit originated, from the first day of the term at 
 which the judgment is entered, and all other 
 
 i[R. S. Ohio, sec. 541.').] 
 
 ^ [Scbuee et al. v. Ferguson et al., 3 Ohio, 136,] 
 
 "^ [R. S. Ohio, sec. 5415.] 
 
 ^ [Id., sec. 5415.] 
 
 s [Id., sec. 6372.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 171 
 
 lands from the time they are seized in execution, 
 but the lien of a judgment of the common pleas 
 court, in an action appealed to the district court 
 and thence removed to the supreme court, is not 
 divested, but continues till the final determination 
 of the action in the supreme court. The lien of 
 judgments of the probate courts against executors 
 and administrators has the same operation as 
 though rendered in the common pleas court.^ 
 Where a prisoner is convicted of an infamous 
 offense, judgment is rendered against him for the 
 costs of prosecution ;^ on which, execution may is- 
 sue against his lands. The statute does not in 
 terms make the judgment, in such cases, a lien 
 per se.^ These provisions in respect to the liens of 
 judgments, giving them effect by relation back to 
 the first day of the term, and preserving them 
 while the cause is pending indefinitely in the ap- 
 pellate tribunal, and while execution is stayed by 
 injunction and supersedeas, obviously necessitate 
 a much more extended search than the period of 
 five years, within which, in ordinary cases, a judg- 
 ment becomes dormant. The search begins with 
 the order book in the circuit court of the United 
 States, in which all judgments of that court are 
 minuted. If the court is then holding a term, 
 search must be made for all the pending cases 
 against the seller of the land. The search is then 
 
 ' [R, S. Ohio, sees. 1212, 5376, 6197.] 
 
 ' [Id,, sees. 6799, ineluding a jury fee of $6.00.] 
 
 = [Id., sec. 7333,] 
 
172 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 transferred to the office of the clerk of the court 
 of common pleas of the county. The judgment 
 index and the execution docket, in that office, will 
 show all judgments and executions in that court 
 for full five j^ears back. Unless the search is made 
 in vacation, the appearance docket must also be 
 searched for all pending causes ;'for, if any of them 
 come to judgment during that term, it will over- 
 reach the prior conveyance made since the term 
 began. This search is necessary also for the pur- 
 pose of ascertaining what judgments of justices of 
 the peace have been docketed. The records of the 
 superior court require the same scrutiny.^ The 
 district court is a regular trap to catch purchasers 
 and mortgagees. Causes coming there, from the 
 common pleas, may remain ten or twelve years, and 
 the lien acquired by the judgment below remain- 
 ing in full force, there is no protection against it, 
 except by searching through all the pending cases, 
 and then going back from the present time as 
 many years as may reasonably cover the time 
 within which a cause may have been decided there, 
 and have gone to the supreme court, been there 
 decided and remanded to the common pleas. An 
 old litigated case hardly fails, for want of such 
 precautions, to catch somebody with its over- 
 reaching lien. The purchaser himself is to blame 
 for it. These laborious and hazardous searches 
 make no show in the abstract, and he is very un- 
 willing to pay for what does not appeal'. When 
 
 ^ [The modern sj'stem of indexing in the large cities, enables 
 the searcher t j examine the records of the courts, as far back 
 as any case would require without much labor.] 
 
SEAKCH FOR LIENS AND ABSTKACTIKG THEM. 173 
 
 judgments are found, the abstract should state the 
 court, the term, the names of the parties, the ex- 
 act amount in dollars and cents, the day from 
 Avliich interest is to be computed, the costs, and 
 the date of the 'last execution ; that no new refer- 
 ence need be had to the records, if it is proposed 
 to pay them off; or, if paid off, to cancel them of 
 record. Judgments are rarely marked satisfied, 
 except on some such occasion as a sale of the land. 
 The foreign execution docket, in the sherifPs office, 
 will show all writs of execution in his hands from 
 other counties. 
 
 5. Judicial proceedings. — Attachments may be is- 
 sued by courts of record, to any coun-ty in the 
 state, and levied on the lands of the defendant, 
 which are thereby bound from the tirne of service.^ 
 The existence of an attachment maybe ascertained 
 in the county where tlfe suit is brought, by search- 
 ing the pending cases in the clerk's office, and, in 
 other counties, by searching the sheriff's docket. 
 Attachments issued by justices of the peace can 
 not be levied on lands. ^ Attachments are allowed 
 as of course against non-resident defendants, and, 
 on affidavits, against fraudulent and absconding 
 debtors.' 
 
 6. Decedents' debts are a lien on the lands of 
 their estates, until paid.' A search must, therefore, 
 
 1 [R. S. Ohio, sees. 5525, 5538.] 
 
 '[Id., sec. 6491.] 
 
 '[Id. sees. 5521, 5522.] 
 
 * Kamsdall v. Craighill, 9 Ohio, 1 97 ; Bank of Muskingum 
 V. Carpenter, 7 Ohio, i. 21; Stiver u. Stiver, 8 Ohio, 217; Piatt 
 V. St. Clair, Ohio, 227. 
 
174 SEARCH FOE, LIENS AND ABSTRACTING THEM. 
 
 be made in the administration docket of the pro- 
 bate court of tlie county, to ascertain if the estate 
 has been finally settled. An entry finally discharg- 
 ing the executor, though in strictness necessary, is 
 not common in practice. 
 
 7. Trustees' expenses. — The expenses and disburse- 
 ments of a trustee and his compensation, and those 
 of agents, executors, and guardians, are a lieu on 
 the trust land, both by the ordinary doctrine of 
 equity and by statute.' 
 
 8. Purchase money liens. — The doctrine upon this 
 subject, which was stated in the last section, is the 
 law of Ohio.^ 
 
 9. Lis pendens. — In the circuit court of the 
 United States, the pendency of a suit precluding 
 any change of ownership of the land sought to be 
 charged or affected by the proceeding, except in 
 subordination to the legal Sr equitable rights of 
 the complainant, dates from the time of the service 
 of the subpcena. In the state courts, the pendency 
 of tlie suit, subsequent to July 1st, 1853, dates from 
 the issuance of the summons, if service is afterward 
 obtained within sixty days.^ 
 
 'Ilill on Trustees, 567; Lewin on Trusts, 560 [R. S. Ohio, 
 sec. 2S51 ; Andrews' Ex'rs v. Andrews' Adm'rs, 7 Ohio St. 143, 
 ]51}. 
 
 ^Jockman v. Hallock, 1 Ohio, 318; Brush v. Adams, 14 
 Ohio, 121; Boos v. Ewing, 17 Ohio, 500; Follett u. Eeese, 20 
 Ohio, .546. 
 
 'Ludlow V. Kidd, 3 Ohio, 541; Bennet v. "Williams, 5 Ohio, 
 4G1 ; Hamlin v. Bevans, 7 Ohio, i. Ifil ; Trimble v. Boothby, 14 
 Ohio, 109; Irvin v. Smith, 17 Ohio, 226; Ohio [R. S., sees. 
 4987, 49S8.] 
 
SEARCH FOE, LIEaS AND ABSTRACTING THEM. 175 
 
 10. Landlord's lien. — There is no law of distress 
 iu Ohio; but the right of the landlord to his share 
 of the growing crops is preserved.' 
 
 11. Foreign xoills. — The hnv upon this subject is 
 stated in the chapter on "Wills. There is no protec- 
 tion against the production of a foreign will creating 
 charges on the land or divesting the title of the 
 heir at law, within the four years allowed to pro- 
 bate it here, except external inquii'ies.^ 
 
 12. Mortgages. — Mortgages are executed with the 
 sarne formalities as deeds.' They have priority 
 from the time that they arc filed for record in the 
 recorder's ofiice, without regard to the time of ex- 
 ecution. The ordinary doctrine of equity that no- 
 tice of a prior unrecorded mortgage postpones the 
 second mortgagee, is excluded by statute. The 
 record alone settles the priorities in case of mort- 
 gages of real property.' In case of chattels, the 
 rule is different.' Mortgages may be canceled of 
 record by the entry of satisfaction, or a receipt for 
 the same, either on the mortgage or on the record 
 of the mortgage, which is written in the margin 
 of the I'ecord.^ 
 
 13. Leases. — Leases for a term not exceedins: 
 three years, in writing merely, without attestation, 
 acknowledgment, or recording, are good ; as are also 
 
 1 Case V. Hart, 1 1 Ohio, 364. 
 
 ^[R. S. Ohio, sec. 5967.] 
 
 ^ [Id., sec. 4106 ; 80 0. L. 79.] 
 
 *[Id., sec. 4133; Bercaw v. Cockerill et al, 20 Ohio St. 163.] 
 
 ' [Id., sees. 4150-4153; Paine v. Mason, 7 0. St. 198.] 
 
 "[Id., sec. 4135.] 
 
176 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 leases of school or ministerial lands, for any term 
 not exceeding ten years.^ Parol leases for less than 
 three years, though clearly invalidated by the stat- 
 ute of frauds, are held good when possession has 
 been delivered solely in consequence of the leases.^ 
 There is also a decision, the effect of which is com- 
 monly understood to be, that a tenant holding over 
 after the expiration of his term, with the landlord's 
 implied consent, is to be construed as holding for 
 the same length of time as the original letting;' a 
 doctrine which, if re examined, would not, probably, 
 in view of the Avords of the statutes of frauds and 
 forcible detainer, be supported. Permanent lease- 
 holds, renewable forever, descend to the heir.* 
 Leases are recorded separately by themselves in the 
 recorder's office. In abstracting them, the length 
 of the term, the amount of the rent, and the clauses 
 of forfeiture, require special attention. If a lease- 
 hold is the subject of purchase, the searcher must 
 be careful to see that no mortgage precedes it, for 
 the mortgagee has it in his power to compel the 
 tenant either to pay him the rent or vacate the 
 premises.^ An unexpected liability often arises on 
 
 ^[R. S. Ohio, sec. 4112.] 
 
 ^ Wilbur V. Paine, 1 Ohio, 256; .Armstrong v, Kattenhorn, 
 11 Ohio, 265; [Grant v. Hamsey, 7 Ohio St. 158.] 
 
 ' Moore V. Beasley, 3 Ohio, 294; [see Worthington v. Globe 
 Eolling Mill, Sup. Ct. Cincinnati, 6 Gin. Law Bull. 23.') ; 9 Am. 
 Law Record, 693.] 
 
 *[R. S. Ohio, sec. 4181.] 
 
 ^Keeoh v. Hall, 1 Smith's L. C. 879-899; Doe v. Mace, 7 
 Blackford, 1 ; Evans v. Elliot, 1 Perry & Dav. 264; Hughes v. 
 
SEARCH FQR LIENS AND ABSTRACTING THEM. 177 
 
 the part of the tenant from the existence of uncon- 
 ditional covenants to pay rent or make repairs. 
 The rule of law is, that parties are understood to 
 make their own bargain, and not to intend exceptions 
 where none are expressed. The accidental destruc- 
 tion of the premises will not, therefore, exonerate 
 the tenant from the duty of paying the stipulated 
 rent, or making the stipulated repairs, or restoring 
 the property in the condition in which it was let 
 to him.^ A mortgagee of a leasehold, who takes 
 possession under his mortgage, is liable thenceforth 
 for the rents to the original landlord, as assignee 
 in possession.^ 
 
 14. Liens of mechanics and material men. — Any 
 person who performs labor or furnishes materials 
 or machinery for erecting any building oi- appurte- 
 nance, by virtue of a contract with the owner, has a 
 lien on the building or appurtenance, and the lot 
 of land on which it stands, if, within four months 
 from the time of performing the work or furnish- 
 ing the materials or machinery, he files his claim 
 
 Edwards, 9 Wheaton, 49.); Knaub v. Es-eck, 2 W.itts, 282; 1 
 Piatt on Leases, 170; Pope v. Biggs, 9 Barn. & Cress. 245. 
 
 'Linnv. Boss, 10 Ohio, 412; 2 Piatt on Leases, 119; Baker 
 V. Holtprafell, 4 Taunton, 4.5 ; 18 Vesey, 115; Leeds v. Cheetam, 
 1 Simons, 146 ; Phillips v. Stevens, 1 C Mass. 238 ; Mill Dam 
 Foundry v. Hovey, 21 Pick. 417, [This rule has been altered 
 by statute. R. S. Ohio, sec. 411.3.] 
 
 ^ Astort;. Miller, 2 Paige, G8; 2 Piatt on Leases, 42,3; Will- 
 iams i;. Bosanquet, 1 Brod. & Bing. 238; Burton v. Barclay, 7 
 Bing. 745 [Anderson v. Lanterman et al., 27 Ohio St. 104; 
 but not where he is not in actual possession; Worthington v. 
 Ballauf, Sup. Ct. Cin.. Gen. Term, 7 Cin. Law Bull. 46]. 
 
178 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 ill the office of the recorder of the county. Liens 
 are recorded in separate volumes, called lien hooks 
 The lien continues for two years from the date of 
 filing the account. If an action is brought, the same 
 continues in force until the final adjudication. 
 There is no homestead or other execution as against 
 any mechanic's lien.' 
 
 Persons performing labor or furnishing m.aterial 
 for constructing, altering, or repairing any street, 
 turnpike, road, sidewalk, way, drain, ditch, or 
 sewer, by virtue of private contract between him 
 and the owner of lands abutting thereon, or his 
 authorized agent, have a lien against the lands. 
 The claim must be filed within four months from 
 the time of performing the labor, etc., and contin- 
 ues for one j'-ear from the filing of the account.^ 
 Laborers and material men on railroads must file 
 their claims with the recorder of the count}^ within 
 forty days from the date of performing the labor, 
 etc., and serve notice in writing upon the secretary 
 or other officer, within ten days thereafter ; other- 
 wise they will be held to have waived their lien.^ 
 
 15. Liens created by city ordinaytces. — Liens maybe 
 created by city ordinances on the lands of railroad 
 companies for the expense of lighting the track; 
 on city lots for the expense of raising, filling, or 
 draining, or removing nuisances therefrom; for all 
 charges authorized to be made by the municipal 
 corporation act ; for the purchase, erection, and 
 
 ^[R. S., sees. 3184,3185.] 
 2 [Id., sees. 3186, 3187.] 
 « [80 0. L. 99.] 
 
SEAUCII FOR LIBMS AND ABSTRACTING THEM. 179 
 
 extension of water works ; for the opening, widen- 
 ing, repairing, and lighting Btreets, wharves, mar- 
 ket places, sewers, etc ;' and grading, curbing, and 
 paving streets in cities of the first grade, second 
 class,^ and repairing and constructing sidewalks.^ 
 
 Some of these liens date from the passage of the 
 ordinance, and some from the time of the assess- 
 ment. Search must be made in tlie office of the 
 city clerk for ordinances creating liens. 
 
 16. Occupying claimant's lien. — The right of a per- 
 son holding under a plain and connected title, de- 
 rived from the records of some public office, and 
 whose title has been found defective, to retain pos- 
 session until paid for his lasting and permanentim- 
 provement, is in the nature of a lien.* 
 
 17. Roads. — The existence of unopened roads, 
 legally established, may seriously affect the value 
 of the property. The road records are kept in the 
 office of the commissioners of the county. 
 
 18. Mutual insurance companies incorporated in 
 Ohio have a lien on the premises insured to secure 
 the amount of the premium note.*^ 
 
 PENNSYLVANIA. 
 
 [Sec. 114. 1. Taxes due the state are alien, and 
 
 i[R. S., sees. 2498, 2393, 2262, 2285, 2430, 2431.] 
 
 ^[Id., sec. 2359.] 
 
 »[Id., sec. 2330.] 
 
 ''[Id., sees. 5780-5790.] 
 
 '" [Id., see. 3663. The lien shall not take effect until the 
 company files with the recorder of the county a certificate 
 stating the date, number, and amount of note, and a descrip- 
 tion of the property.] 
 
180 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 bear interest from the time they are due.^ Within 
 the city and county of Philadelphia, taxes registered 
 in the county commissioners' office are a lien for five 
 years from the first day of January in the year suc- 
 ceeding that i n which they become due ; and, if judg- 
 ment be thereafter obtained upon them, the judg- 
 ment is a lien as in other cases of judgments.^ 
 Taxes due on collateral inheritances are liens until 
 paid.' 
 
 2. Debts due to the state. — Balances found due by 
 the auditor general on pubJic accounts to the com- 
 monwealth, are a lien from the date of the settle- 
 ment of the account, on all the real estate of the 
 debtors and of their sureties throughout the com- 
 monwealth.* The report of a county auditor, filed 
 in the court of common pleas, of a debt due by an 
 officer to the commonwealth or county, is a lien 
 from the filing of the report.^ Purchase money 
 due to the public land office is a lien on the land 
 sold.^ The official recognizances given by sherifis 
 and coroners for their good conduct in office, and 
 which are docketed in the office of the prothono- 
 tary of the court of common pleas of the proper 
 county, are liens on all the real estate of. the sher- 
 
 1 [Brightly's Purd , p. 1389, sec. 186.] 
 
 ''[Id., p. 1086, sec. 8. Except in cities of the first, second, 
 and fourth classes, they are a first lien for two years 
 from the 1st of July next after they are returned. Laws 1881, 
 p. 45.] 
 
 «[Id., p. 216, sec. 7.] 
 
 *[Id., p. 1188, sec, 22.] 
 
 ''[Id.,?, 301, sec. 16.] 
 
 «[Id., p. 909, sec. 95.] 
 
SEARCH FOR LIENS AND ABSTRACTIFff THEM. 181 
 
 iifs and coroners and their sureties.^ Judgments 
 rendered in Dauphin county in favor of the com- 
 monwealth against defaulters, and certified to the 
 court of common pleas of the county in which the 
 lands lie, are liens on the land there.^ 
 
 3. Dower.— The act of April 8th, 1833, abolished 
 the common law estate of dower in Pennsyvania.' 
 The claim of the widow to a distributive share of 
 her husband's estate does not exist in lands sold 
 under judicial proceedings, nor in those sold by 
 the husband,'' or otherwise limited by marriage set- 
 tlement.' 
 
 4. Curtesy. — Marriage gives the husband no rights 
 in his wife's lands. , He can not incumber them, 
 except she unites with himin the conveyance orgives 
 her consent by deed. This acknowledgment or 
 consent of the wife, if taken out of the state and 
 within the Upited States, may be taken by any 
 judge of any court of record.' 
 
 5. Judgments and executions. — The judgments of 
 the circuit court of the United States are liens on 
 all the lands of the defendant within the circuit.' 
 Judgments of the supreme and district courts, and 
 
 ' [Brightly's Purd., p. 1307, sec. 14.] 
 ^[Id., p. 488, sec. 2,] 
 ' [Id., p. 528, sec 2.] 
 
 * [Scott «. Crosdale, 2 Ball. 127.] 
 
 * [Borland v. Nichols, 12 Penn. St. 42.] 
 
 "[Brightly's Purd., p. 461, sec. 14; Id., p. 1005, sec. 13. " If 
 the wife dies defore the husband, intestate, seized of an estate 
 of inheritance, he will be entitled to enjoy the same during 
 his life, in the same manner as a tenant by tlie curtesy con- 
 summate at common law." Gamble's Estate, 1 Pars. 489.] 
 
 '7 Howard, 7C0 
 
182 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 other courts of record within the county, indexed 
 on the judgment docket, are liens upon all lands 
 within tlie county from the day judgment is signed 
 for five years from the first return day of the terra 
 of which such judgment may be entered.^ Awards 
 of arbitrators are liens for five years from the day 
 on which the award was entered.^ Judgments 
 transferred from another county and docketed 
 there, are a lien from the date of the docketing. 
 Transcripts of the judgments of justices of the 
 peace, entered on the prothonotary's docket, are 
 liens from the date of the entry .^ The filing of an 
 inquisition of an execution against lands which lie 
 in one or more adjoining tracts in different counties 
 in the otfice of the prothonotary of the counties 
 where the lands lie, is a lien from the entry.* In 
 Philadelphia, city and county, lands acquired after 
 the rendition of a judgment are not bound by it, un- 
 less the judgment is levied thereon, and the exe- 
 cution docketed on thejudgment index of the court 
 fromAvhich execution issued.^ Judgments rendered 
 in Dauphin county against public defaulters, and 
 certified to the court of common pleas where the 
 lands lie, have been already stated. Decrees for ali- 
 mony entered in the judgment docket of the pro- 
 thonotary of the court of common pleas, are liens.^ 
 
 1 [Brightly's Purcl., p. 819, sec. n ] 
 
 ''[Id., p. 820, sec. 7. Awards may be transferred to any 
 other court of common jileas by filing a certified copy of the 
 whoh; record, whioli creates a lien. Sup., p. 2027, sec. 2.] 
 
 " [Id , pp. 821, 822, sees. 14, 16; Id., p. 863, sec. 100.] 
 
 *[Id.,p. 653,800. 92] 
 
 '[Id., p. 647, sec. 61.] 
 
 ^[Id.,p. 513, see. 25.] 
 
SEAKCII FOR LIENS AND ABSTRACTING THEM. 183 
 
 Balances found due by an executor, administrator, 
 guardian, or other accountant, on settlement with 
 the orphan's court, docketed iu the office of the 
 prothonotary of the court of common pleas, create 
 a lien for five years.' A sequestration from the or- 
 phan's court, docketed in like manner, is a lieu 
 from the date of the entry .^ Decrees in equity are 
 liens like judgments.^ 
 
 6. Judicial 2^i'ocee(.li')igs. — Domestic attachments 
 levied on land."* Foreign attachments against non- 
 residents and foreign corporations, filed in tlie pro- 
 thonotary's office, create liens from the time of ex- 
 ecution.^ Attachments on lands before justices of 
 the peace, remain liens for sixty days after the time 
 when the plaintifi" might legally have had execu- 
 tion issued on the judgment. If the cause is ap- 
 pealed, they remain liens until sixty days after final 
 judgment.' 
 
 7. Decedent's debts. — The debts of a deceased per- 
 son are a lien on- the lands of his estate for five 
 years and no longer, unless an action be commenced 
 thereon within the five years, or a copy or particu- 
 lar written statement of any bond, covenant, debt, 
 or demand, where the same is not payable within 
 the said period of five years, shall be filed within 
 the said period of five years in the office of the 
 prothonotary of the county where the real estate 
 
 '[Brightly's Purd., p. 44G, sec. 201.] 
 
 ='[Id.,p. 1107, sec, 33.] 
 
 ^Id., p. 601, sec. 08.] 
 
 *[Id.,p. '519, SCO. .5.] 
 
 ^ [Id., p. 719, sec. 12] 
 
 «[Id.,p. 859, sec. 83.] 
 
184 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 to be charged is situated, in which case it shall be 
 a lien only for the period of five years after the 
 bond, covenant, debt, or demand, becomes due. 
 Tlie expenses of administering the estate, and the 
 compensation of the executor, are not thus limited.^ 
 
 8. Trustee's expenses. — By the ordinary doctrine 
 of equity, the expenses and disbursements of a 
 trustee, in respect of a trust estate, constitute a 
 lieu on the trust property. It is assumed that this 
 is the law of all the states, uo statutory provision 
 being made upon that subject.^ 
 
 9. Ground rents, which are now regulated by 
 statute.^ 
 
 10. Purchase money liens. — The lien of the un- 
 paid vendor of land on the land to secure the pay- 
 ment of the purchase money, against' all p^ersons 
 taking with notice or without paying value, was 
 noticed in section 51. This lien extends by stat- 
 ute, in Pennsylvania, to the case of money due the 
 public land office ; money due on the sale of en- 
 tailed estates, and estates subject to ground rents, 
 and to contingent remainders, which are sold un- 
 der judicial decree, in accoi'dance with the act of 
 April 18th, 1853;* to money due on sales of land 
 by order of the orphan's court,^ and money due 
 
 '[Brightly's Purd., p. 422, sec. 88; Cobaugh's Appeal, 24 
 Penn. St. 143.] 
 
 '' [Hill on Trustees, 567; Lewin on Trusts, 548.] 
 "[Brightly's Purd., p. 751, sees. 13-16.] 
 ^[Id.,p. 1244, sec. 5.] 
 ^ [Id., p. 1105, sec. 13.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 185 
 
 on the judicial completion of a decedent's contract 
 for the purchase or sale of land.^ 
 
 11. Lis pendens. — The pendency of an action 
 which seeks to. fasten a charge on land, to subject 
 it to an equitable lien, or to divest the title of the 
 defendants, is not notice in Pennsylvania, unless 
 docketed on the ejectment index in the office of the 
 prothonotary.^ 
 
 12. Landlord's lien on growing crops} 
 
 13. Caveats, to stop the issuing of a patent for 
 land from the public land office.'* 
 
 14. Mortgages. —Mortgages are executed with the 
 same formalities as deeds. They have priority from 
 the date of the record, without regard to the time 
 of execution, except mortgages to secure the pur- 
 chase money, which must be recorded within sixty 
 days from their execution.^ The lien of a mortgage 
 is not affected by a sale on execution at the instance 
 of subsequent claimants^. Mortgages are canceled 
 by satisfaction being entered ou the margin of the 
 record.'' 
 
 15. Leases. — Leases for twenty-one years, where 
 
 ' [Brightly's Purd., p. 274, sec. 2.] 
 
 ^[Id.,p. 537,sec. 24] 
 
 = [Id., p. 876, sec. 4.] 
 
 *[Id.,p. 891, sec. 10.] 
 
 ^[Id., p. 478, sec. 103. Defeasances must be in writing, 
 signed, sealed, acknowledged, and recorded within sixty days 
 from their execution. L. 1881, p. 84.J 
 
 ^ [Id., p. 486, sec. 139.] 
 
 '[Id., p. 484, sec. 127. Assignments must be noted in the 
 niortgaae. Sup., p. 2003, sec. 5.] 
 "16 
 
186 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 actual possession goes along with the lease, are not 
 required to he recorded. Inquiry must, therefore, 
 bo made of tenants in possession as to the extent 
 of their rights, as well as a search made for recorded 
 leases.' 
 
 16. Lieris of mechanics, material men, and miners. — 
 Mechanics who perform labor on buildings, and 
 material men who furnish materials, including 
 plumbers, furnishers of curb-stones, grates, and 
 furnaces, wharf builders, paper-hangers, and gas- 
 fitters and furnishers, have a lien on the building 
 and land from the time of the commencement of 
 the building and for six months after the work is 
 finished or the materials furnished, without filing 
 any claim within that time.^ 
 
 The current wages for the past six months of 
 persons working for miners or mining companies, 
 are a lien on the lands. The claims must be filed 
 in the prothonotary's ofilce in the county in which 
 the real estate is situated within three months after 
 the same becomes due, in the same manner as me- 
 chanics' liens.^ 
 
 TENNESSEE. 
 
 [Sec. 115. 1. Taxes. — Taxes are a lien on the 
 real estate, from January 10th of each year.^ 
 2. Bower. — The widow is entitled to one-third of 
 
 1 [Brighlly's Purd., p. 47.3, sec. 78.] 
 ^ [Id., pp. 1020, 1027, 1033, sec. 44.] 
 '[Id., p. 1464, sec. 1.] 
 '[Act 1873, p. 176, sec. 26.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 187 
 
 all the land of which the husbaDd died seized, or 
 of which he was equitable owner.-' 
 
 The right of dower is postponed to the lieu of a 
 vendor for purchase money.^ 
 
 3. Curtesy. — The interest of the husband in the 
 wife's land can not be disposed of by judgment, 
 or otherwise, during her life, unless she joins in the 
 conveyance.^ The husband is not liable for the 
 antenuptial debts of the wife.^ 
 
 4. Judgments and executions. — Judgments are liens 
 from the date of their rendition.^ 
 
 Judgments of the federal courts bind the real es- 
 tate in the county in which the court sat when it 
 rendered judgment." 
 
 When judgments are rendered in any other 
 county than that in which the debtor resides, the 
 lien takes effect from the time a certified copy of 
 the judgment or decree is registered in the county 
 where the debtor resides, if he resides in the state, 
 but, if not, then in the county where the land 
 lies.^ 
 
 The lien is lost unless execution is taken out and 
 the land sold within twelve months after the rendi- 
 tion of the judgment.* 
 
 '[Laws, 1871, sec. 2398.1 
 
 ^ [Id. ; Williams v. Dawson, 3 Sneed, 316 
 
 '[Id., sec. 2481.] 
 
 *[Acts 1877, p, 104.] 
 
 s [Laws 1871, sec, 2980.] 
 
 ^ [Vance v. Johnson, 10 Humph. 214.] 
 
 '[Laws 1871, sec. 2981.] 
 
 8 [Id., sec. 2982.] 
 
188 SEARCH FOR LIEN'S AND ABSTRACTING THEM. 
 
 Where the sale is prevented by injunction, writ 
 of error, appeal, or otlier adverse proceeding, the 
 lien is continued, provided an execution is issued 
 and land sold within one year after the injunction 
 is dissolved, or the judgment or decree affirmed.^ 
 
 The j udgment or decree docs not bind the equita- 
 ble interest of the debtor in the estate, unless within 
 sixtj^days from its rendition a memorandum of the 
 judgment or decree, stating the amount and date 
 thereof, with the names of the parties, is regis- 
 tered in the register's office of the county where 
 the real estate is situated.^ 
 
 As between creditors, the lien of judgments ren- 
 dered on different days of the same term relates 
 back to the first day of the term.^ As between a 
 creditor and a purchaser, or a stranger, the lien at- 
 taches only from the date of the rendition of the 
 judgment.* 
 
 The lien attaches to such lands acquired by the 
 defendant, after the rendition of the judgment, as 
 may be levied on and sold within the time limited by 
 the statute,^ and such as the debtor acquires after 
 the expiration of twelve mouths, and continues for 
 a period of one year from the time it attaches." 
 
 When execution issued by a justice of the 
 peace is levied on real estate, he must return it 
 
 '[Laws 1871, sec, 2983.] 
 
 ^ [Id- sec. 2984.] 
 
 ' [Porter v. Earthman, 4 Yerg. 358.] 
 
 * [Murfree v. Caimack, 4 Yerg. 270.] 
 
 ^ [Greenway v. Cannon, 3 Humph. 177.] 
 
 '' [Chapron v. Cassaday, 3 Humph. C61.] 
 
SEAECII FOli LIEXS AND ABSTRACTING THEM. 189 
 
 with the judgment and the papers, to the next cir- 
 cuit court of hia county, for condemnation.^ 
 
 A creditor has a lien upon the property from the 
 fihng of his bill, and may acquire a lien from the 
 rendition of the decree by causing a memorandum 
 thereof, within sixty days from its rendition, to be 
 registered, and filing his bill within thirty days 
 from the return of the execution unsatisfied.^ Pen- 
 alties incurred for the exercise of any privilege, 
 without license, are a lien.^ 
 
 5. Vendor's lien. — The vendor of the land, as 
 each payment becomes due, may bring his suit to 
 enforce his lien, and may have so much of the land 
 sold as may be necessary to pay the money then 
 due.* 
 
 6. Growing crops. — The landlord has a lien on 
 the growing crop. Any debt, note, or account cre- 
 ated for the rent, is a lien on the growing crop. 
 The lien continues for three months after the debt 
 becomes due, and until the determination of any 
 suit commenced within that time.' 
 
 The landlord has a lien on the growing crop for 
 supplies of food and clothing furnished to enable 
 tenant to grow the crop.^ 
 
 7. Mortgages and trust deeds — take effect as against 
 
 '[Laws 1871, sec. 3080.] 
 
 ' [Id., sec. 4286.] 
 
 ' [Id., sec. 5566.] 
 
 * [Id., sec. 35G3.] 
 
 ' [Id., sees. 3539, 3540.] 
 
 "[Act 1875, p. 206.] 
 
190 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 persons not having actual notice, from the time of 
 beiug filed for record.^ 
 
 8. Leases. — Leases for more than three years from 
 the time of their execution must be recorded.^ 
 Those for more than one jevw must he in writing.^ 
 
 9. Bcdemplion. — Eeal estate sold for debt may be 
 redeemed at any time within two years after such 
 sale: 1. "Where it is sold under execution ; 2. Un- 
 der any decree, judgment, or order of court of 
 chancery; 3. Under a deed of trust or mortgage, 
 unless the right is expressly waived ; 4. Where it 
 is sold for taxes.* 
 
 10. 3Iechaincs' liens. — Mechanics have liens upon 
 any lot of ground upon which a house is constructed, 
 built, or repaired, orfixtures or machinery fui'nished 
 or erected, or improvements made by special con- 
 tract with the owner or agent. If the contract be 
 made with a mortgagor, and the mortgagee has 
 written notice before the work is begun or ma- 
 terials furnished, and consents thereto, the lien has 
 priority over the mortgage, and, if he fails to ob- 
 ject within ten days after receipt of the notice, 
 his consent shall be implied. The lien continues 
 
 . for one year after the work is performed, etc., and 
 binds the land, though the owner may dispose of 
 the same. 
 
 Journeymen and persons employed by mechan- 
 ics, founders, or machinists, have a lien if at the 
 time they begin work, etc., they notify, in writing, 
 
 i[Laws 1871, seo. 2072.] 
 ^ [Id , sec- 2030] 
 '[Id., sec. 1758.] 
 *[Id., sec. 2124,] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 191 
 
 the owner of the property of their intention to 
 rely upon the lien. Such lien is enforced by at- 
 tachment, either in law or equity.^ 
 
 The lien of mechanics, foundry men, and ma- 
 chinists may be enforced by a suit before a justice 
 of the peace for all suras within the justice's juris- 
 diction, and, when an attachment has been levied, 
 judgment rendered, and execution issued, the pa- 
 pers must be returned to the circuit court, to be 
 proceeded upon as in other cases of levy by justice's 
 execution on lands. An abstract of the judgment, 
 within twenty days after its rendition, must be filed 
 in the office of the register of the county in which 
 judgment is rendered.^ 
 
 AVISCONSIN. 
 
 Sec. 116. 1. Taxes. — Taxes are a lien on land un- 
 til paid.^ 
 
 2. Dower. — The widow is entitled to one-third 
 of the land of which the husband was seized of an 
 estate of inheritance at any time during marriage. 
 She is not entitled to dower in land morts:aa:ed to 
 secure the purchase money, as against the mort- 
 gagee or those claiming under him, although she 
 did not unite in the mortgage, but is entitled to 
 dower as against all other persons.* 
 
 •[Laws 1871, sec. 1981-1987.] 
 '[Id.,sec. 3547, 3548.] 
 '[R. S. 1878, sec. 1088.] 
 * [Id., sees. 2159,2163.] 
 
192 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 3. Curiesy.^lhe husband is entitled to hold the 
 lands of which the wife died seized, and which 
 were not disposed of by will, for his life; but if the 
 wife left issue of a former husband to whom the 
 estate might descend, such issue takes the same 
 discharged of the right of the husband as tenant 
 by the curtesy.^ 
 
 4. Judgments and executions. — Judgments are a 
 lien on the lands for ten years from the date of 
 their rendition. Executions may issue within five 
 years after the rendition of the judgment. If no 
 execution issues within five years, it can only be is- 
 sued upon leave granted by the court, when it is 
 made to appear that the judgment, or some part 
 of it, remains unsatisfied. In no case can an execu- 
 tion be issued, or any proceedings be had, under a 
 judgment after twenty years from the time of the 
 rendition.^ Transcripts of judgments of justices 
 are deemed judgments of the circuit court when 
 filed therein.' 
 
 When judgments are entered on the docket as 
 satisfied, they cease as liens. Transcripts of such 
 satisfaction filed in other counties with the circuit 
 court of the county, have the same effect as when 
 originally entered.* 
 
 5. Judicial ■proceedings. — An attachment binds 
 the lands of the debtor from the time of the filing 
 
 '[R. S., 1878, sec. 2180.] 
 ^[Id, sees. 2902, 2968.] 
 " [Id., sec. 2900.] 
 *[ld., sscs. 2912, 291.3.] 
 
SEARCH FOR LIENS AND ABSTRACTING THEM. 193 
 
 of a copy of the original writ in the office of the 
 register of deeds.' 
 
 6. Lis pendens. — !N"otice of the pendency of au 
 action must be filed with the register of deeds of 
 the county where the land is situated. If the ac- 
 tion be for the foreclosure of a mortgage, it must 
 be filed twenty daj-s before judgment. A defend- 
 ant setting up affirmative matter may file a like 
 notice." 
 
 7. Mortgages. — Mortgages are notice from the 
 time of being filed for record.^ Record of the as- 
 signment of a mortgage is not deemed notice of 
 such assignment to the mortgagor, his heirs or per- 
 sonal representatives, so as to invalidate any pay- 
 ment made by them to the mortgagee.* 
 
 Satisfaction of a mortgage is entered in the gen- 
 eral index and on the margin of the record. It 
 must be signed by the mortgagee, his personal rep- 
 resentative or assignee, in the presence of the reg- 
 ister of deeds, who subscribes the same as a wit- 
 ness. A certificate by the mortgagee, his personal 
 representative or assignee, acknowledged and cer- 
 tified, has like effect.'' A lien is created by a de- 
 posit of title deeds in the nature of an equitable 
 mortgage.'' 
 
 i[R. S. 1878, sec. 2737.] 
 "[Id., sec, 3187.] 
 '[Id., sec. 2241.] 
 * [Id., sec. 2244.] 
 ' [Id., sees. 2247, 2253.] 
 « [Jarvis v. Dutcher, 16 Wis. 307.] 
 17 
 
194 SEARCH FOR LIENS AND ABSTRACTING THEM. 
 
 8. Decedent's dtUs. — Real estate desceuded to any 
 heir or devisee and aliened to a bona fide purchaser 
 before notice of action filed, or before final judg- 
 ment is docketed, is not liable to execution on any- 
 such judgment.^ 
 
 9. Vendor's lien. — The vendor has a lien for the 
 payment of purchase money .^ 
 
 10. Mtchnnics' liciis. — For constructing or repair- 
 ing buildings, wharves, filling water lots, dredging 
 channels, digging or constructing wells or foun- 
 tains, building or repairing fences, liens are ac- 
 quired. 
 
 Subcontractors acquire a lien on giving notice in 
 Avriting, if any thing is due contractor, within 
 thii'ty days after performing labor, etc., to the 
 owner, or his agent, of the propert}^ to Jbe affected 
 by .such lien. These liens continue for six months 
 from the date of the last charge for performing 
 such work ; the claim therefor must be filed in the 
 office of the clerk of the circuit court of the 
 county, and afl action brought within one year 
 from that time.' 
 
 The taking of a promissory note or other evi- 
 dence of indebtedness for such work or materials 
 will not discharge the lien, unless expressly re- 
 ceived as payment.''] 
 
 ' [R. S., sec. 32S5,] 
 ' [VViUai-a V. Reas, 26 Wis. 540.] 
 » [R. S. 1S7S, spcs. 3314-3318.] 
 *[Id.,.'5ec. 3317.] 
 
SEAECH OF JUDICIAL RECORDS. 195 
 
 CHAPTER VII. 
 
 OF THE SEARCH OF JUDICIAL RECORDS AND ABSTRACT- 
 ING THEM. 
 
 117. What title is acquired at judicial sales. — 113. The indis- 
 pensable points in records. — 119. Jurisdiction of the sub- 
 ject. — 120. Jurisdiction of the person. — 121. Judgment, 
 levy, sale, and deed. — 122. Points to be noticed in records. 
 
 Section 117. In proceeding to the examination 
 of titles founded on judicial proceedings, the pru- 
 dence or timidity of the purchaser sometimes re- 
 quires the searcher to examine, not only with refer- 
 ence to the safety of the title to be acquired, but 
 also to the chances of his being involved in the sub- 
 sequent litigation of the case under which the title 
 has been made. Apprehensions of the resnlt of 
 future litigation are entirely groundless, for, both 
 at common law and by statute, the reversal of a 
 judgment does not divcstthe title of the purchaser 
 at a sale made in pursuance of its authority, the 
 purchaser not being a jsarty to the suit,' or, in some 
 states, the attorney of a party .^ Where a search 
 is made previous to the sale, with a view to bidding 
 
 ^Goudy V. Hall, 36 111. .319 [R. S. Ohio, sec. .5409; Purd. 
 Bright., pp. 4S4, 6.3 1, sees. 84 1'25; Rorer Jud. Sales, 2nd ed., 
 sees. 57C, 577; Comp. Laws Kans., sec. 3998. In Ohio, the 
 purchaser, though h, party, is protected. McBride v. Long- 
 worth, 14 0. St. 349]. 
 
 ' Bacon's Ab. Execution, Q.; Eearson v. Searcy, 2 Bibb, 202 
 [R. S. Ind., sec. 669j. 
 
196 SEARCH OF JUDICIAL RECORDS. 
 
 at the sale, the closest attention to the regularity 
 of the proceedings subsequent to the judgment 
 may be necessary, to prevent the client bid- 
 ding, and thereby incurring the risk of his 
 purchase money lying idle in court while the 
 regularity of the proceedings relating to the sale is 
 contested, and receiving it back, without interest, 
 at the end of the litigation. A very serious mis- 
 apprehension of the true nature of a judicial sale 
 is common among bidders. They imagine that a 
 purchase "from the court" is attended with an im- 
 plied expression of the opinion of the court upon 
 the goodness of the title, and that they thereby got 
 the title of the land itself, together with the highest 
 possible assurance against any future claims upon 
 it. The fact is, that a judicial sale is a sale of the 
 interest of the defendant in the action, and nothing 
 more' iSTo expression of the opinion of the court 
 is involved in it, and no warranty of the title is 
 given or implied.^ The accepted bidder will, if the 
 proceedings are regular, be required to pay the pur- 
 chase money, whether he obtains a title or not. In 
 Ohio, by statute, purchasers at judicial and tax 
 
 'O'Neal V. Wilson, 21 Alabama, 288; Starke v. Harrison, 
 5 Richardson, 7; Andrews v. Murphy, 12 Georgia, 431; Reed 
 V. Kinnaman, 8 Iredell, 13; Vansyckle v. Richardson, 13 Illi- 
 nois, 171 ; McLouth v. Rathbone, 19 Ohio, 21. 
 
 " llarth V. Gibbes, 3 Richardson, 316 [The Monte Allegro, 9 
 Wheat. 616; XJ. S. v. Duncan, 4 McLean, 607; Brackenridge 
 V. Dawson, 7 Ind 383; King </. Gunnison, 4 Penn. St. 171; 
 Jennings v. Jenkins, 9 Ala. 285]. 
 
SEARCH OF JUDICIAL RECOEDS. 197 
 
 sales acquire the interest of the plaintiff and of the 
 state in the claim upon which the land is sold, and 
 in case the title fails, have a lien on the land to 
 that extent.' He who bids at a judicial sale of 
 laud "taken in, execution as the property of" 
 the defendant, without examination into the title 
 of the defendant, soon parts with his money. If 
 no worse mischief follows, he is pretty sure to find 
 it incumbered by the claim of the wife to dower, 
 which will give him the most lively interest in the 
 good health and long life of the judgment debtor. 
 An examination to satisfy the scrupulosity of a 
 possible bidder, involves details too voluminous to 
 be stated here. The jooints upon which the validity 
 of the title depends will be considered in the next 
 section. 
 
 Sec. 118. The mode of acquiring title to real 
 property under judicial proceedings, is regulated by_ 
 the law of the state wherein the lands lie, and the 
 validity of the title depends upon the substantial 
 conformity of the proceedings to that law.^ To con- 
 stitute that due course of law, without which the 
 act of the court will not confer a title, it is essential 
 that the court be one which has by law authority to 
 entertain the suit with respect to that land f to en- 
 
 ' [R. S., sec. 5411.J 
 
 ''Story's Confl. of Lau's, sec. 550; Buell v. Cross, 4 Ohio, 
 330, note in Emerson's edition [Borer Jud. Sales, 2nd ed., 
 sec. 58]. 
 
 'Ludlow V. Johnston, 3 Ohio, 552; Ludlow v. Wade, 5 Ohio, 
 494; Daniels v. Stevens, 19 Ohio, 222; Moore v. Robinson, 6 
 Ohio St. 302. 
 
198 SEARCH OP JUDICIAL RECORDS. 
 
 tertaiii it against the defendant as the owner thereof ;i 
 and that in the actual exercise of such authority, the 
 land was taken, sold, and conveyed to the pur- 
 chaser.^ In other words, the court must have jur- 
 isdietiou over the land and over the person of the 
 assumed owner, and must have, in fact, proceeded 
 to a judgment, levy, sale, and deed.^ To require 
 more would he to divest the j udicial authorities of all 
 title to respect, and require the purchaser to exercise 
 that power of revision over the proceedings which 
 belongs ouly to an appellate tribunal. To require 
 less would be to divest the title without a completed 
 judicial act. These essential points may be briefly 
 explained. 
 
 Sec. 119. First, the court must be one which 
 has by law authority to entertain the suit with re- 
 spect to that land. This depends upon the law regu- 
 Jating the jurisdiction of the court, of which we can 
 not now speak particularly. In general, courts of 
 record, having a clerk and seal, are limited in the 
 exercise of their jurisdiction, by tbe limits of the 
 county or district within and for which they sit, and 
 
 • Pelton V. Plainer, 33 Ohio, 209; Maxsom v. Sawyer, 12 
 Ohio, 195; Hodgson v. Bowerbank,5 Ci-anch, 303 [Conference 
 V. Price, 42 Ala. 49; Coopers. Sunderland, 3 la. 114; Moore 
 V. Xeil, 39 111. 25G ; Torrance v. Torrance, 53 Penn. St. 505 ; 
 Sheldon V. Xewton, 3 Ohio St. 495; Gerrard v. Johnson, 12 
 Ind. 63G]. 
 
 2 Adams t). Jeffries, 12 Ohio, 273; Allen v. Parrish, 3 Ohio, 
 187; Wheaton v. Se.xton, 4 Wheaton, 503; 37 Penn. St. 307. 
 
 ^GrignontJ. Astor, 2 Howard U. S. 341; Boswell v. Otis, 9 
 Howard U. S. 346; Allen v. Parrish, 3 Ohio, 187. 
 
SEARCH OF JUDICIAL RECORDS. 199 
 
 can ordinarily entertain no jariscliction of lands 
 ■which lie beyond those limits. Suits, the direct and 
 professed object of which is to obtain a sale of land 
 under an existing charge, mortgage, or other lien, 
 must, in such cases, be brought in the proper court 
 in the county or district in which the lands are situ- 
 ated. The most numerous cases are, however, those 
 wliich seek merely to fasten a personal liability upon 
 the defendant by a judgment, irrespective of any 
 particular property, to bo followed by a writ of exe- 
 cution against any goods, chattels, or lands that he 
 may possess. Jurisdiction in this latter case is 
 ordinarily limited, not by the locality of the defend- 
 ant's property, but by the ability of the officers of 
 the court to serve process upon him within the terri- 
 torial limits of the district or county ; courts having, 
 in general, jurisdiction over all persons actually 
 served with process within those limits. The right 
 to execute the judgment by executive process, is 
 often much more extensive in point of territory than 
 the power to adjudicate and render the judgment. 
 Thus, though in Ohio the jurisdiction of the courts 
 of common pleas, in respect to charges and liens on 
 lands, and in respect to the ordinary service of a 
 summons to commence an action, is limited to their 
 respective counties, process in execution of the 
 judgment establishing a liability against the person ( 
 of the defendant, may issue from that court to every 
 county in the state, and, under it, lands, in any 
 county, may be sold. 
 
 Sec. 120. Second, the court must have authority 
 
200 SEARCH OF JUDICIAL EECOEBS. 
 
 to entertain tlie suit against the defendant as the 
 owner of the laud. The n&ual requirement, with 
 respect to obtaining jurisdiction over the person 
 prescribed by the law regulating the proceedings 
 of the court, is that the defendant must have due 
 notice of the proceedings.^ Universally, that is rec- 
 ognized as indispensable. But what is due notice 
 is a question for the lawgivers. The means of 
 giving notice which they prescribe must be pur- 
 sued ; and, if pursued, are equivalent to actual no- 
 tice, though the defendant may never in fact hear 
 of the proceedings.^ It is not enough that- the 
 defendant is informed of the proceedings against 
 him, as by the unauthorized service of a writ by an 
 officer going beyond his territorial limits for that 
 purpose;^ he must have notice in the mode pre- 
 scribed by law.* ]S"othing else is of any avail, un- 
 less he voluntarily appears in court and defends the 
 action. The usual mode prescribed is by the serv- 
 ice of a writ, issued under the seal of the court, 
 and in the form, and served by the officer, and in 
 
 ' Bradstreetu. Neptune Insurance Co., 3 Sumner, 600; Bos- 
 well V. Otis, 9 How. 346; Boswell v. Sharp, 15 Ohio, 447; Saw- 
 yer u. Maine Fire and Marine Insurance Co., 12 Mass. 291; 
 Story on Confl. of Laws, sees. 549, 592; Sims v. Henderson, 11 
 Queen's Bench, 1014. 
 
 ^ Douglas V. Forrest, 4 Bingham, 6S5 ; Reynolds v. Fenton, 
 
 3 Common Bench, 187; Story on Confl, of Laws, sec. 584, et 
 seq. 
 
 ' Ewer V. CofBn, 1 Cushing, 23 ; "Woodward v. Tremere, 6 
 Pickering, 354. 
 * Matter of Underwood, 3 Cowen, 59; Messinger v. Kinter, 
 
 4 Binney, 97. 
 
SEARCH OF JUDICIAL RECORDS. 201 
 
 the mode, directed by law. The searcher will 
 necessarily be required to inform himself as to the 
 requirements of the local law upon this subject. 
 When the defendant has absconded or fraudulently 
 conceals himself, process of attachment, by which 
 his lands are seized by the officers of the court, is a 
 commonly adopted mode of giving the defendant 
 due notice. If the defendants are non-resident or 
 unknown, and thus beyond the reach of process, the 
 law ordinarily allows notice to be given by publi- 
 cation in the newspapers. These are the usual 
 modes; but what requires particular attention is, 
 that no mode is effectual in a particular case, un- 
 less it be the very mode appropriate by law to the 
 circumstances. A publication, authorized in case 
 of non-residents- against a resident, however hon- 
 estly and ignorantly done, would not confer juris- 
 diction over the resident; and so of other depart- 
 ures from the prescribed mode of giving notice. 
 The purchaser must ascertain ' at his peril that 
 the facts justified a resort to the mode adopted, 
 and that the defendant was, as the expression is, 
 legally brought into court; that is, that the means 
 of giving notice, requisite in his particular case, 
 have been resorted to. It is obvious, from what 
 has been already stated, that the whole proceeding 
 will be unavailing, if the persons made defendants 
 are not the real owners of the land sought to be 
 affected by the judgment or decree, and that the 
 onuFsion to make defendants those who have con- 
 current, paramount, or subsequent liens upon the 
 
202 SEAECII OF JUDICIAL KECORDS. 
 
 property, will leave all the riglits of the omitted 
 lien holders in full force against the land. 
 
 Sec. 121. Third, it is requisite that, in the actual 
 exercise of the rightful authority of the court, the 
 land he taken, sold, and conveyed to the purchaser.^ 
 Jurisdiction over the land, and over the person, is 
 rightfully exercised when, on the requisite notice 
 having been given to the defendants, a claim is 
 made to the court by bill, petition, complaint, 
 declaration, or by whatever means the practice of 
 the court requires the plaintiff to make known his 
 cause of action, in respect of the land, and against 
 the defendants as the owners thereof, and the judg- 
 ment is rendered thereon, authorizing a sale of the 
 land ; and the judgment is executed upon process 
 of execution issued from the court, under the seal 
 of the court, directing a sale, which is accordingly 
 made ; and, in case the law requires it, that the sale 
 be approved by the court,^ and a deed ordered to 
 be made to the purchaser. The validity of the title 
 involves the questions of the power of the court 
 over this land, and this person as its owner, and 
 the fact of the exercise of the power. Whether, 
 the requisite notice having been given, the power 
 
 ' Wheaton v. Sexton, 4 Whfaton, .503 ; Voorhees v. Bank of 
 United States, 10 Peters, 449; 37 Penna. Sffte, 307; Stall r. 
 Macalester, 9 Ohio, 19; Brooks v. Rooney, 11 Georgia, 423 ; 
 Draper v. Bryson, 17 Missouri, 71; Etheridge v. Edwards, 1 
 Swan's Tenn. R. 426; Carpenter v. Shaffner, 2 Carter's In- 
 diana R. 465; Williamson v. Bedford, 10 Iredell, 198; Bybee 
 V. Ashby, 2 Oilman, 151 ; Paine v. Mooreland, 15 Ohio, 436. 
 
 2 Stall v. Macalester, 9 Ohio, 19. 
 
Search of judicial records. 203 
 
 was exercised well or ill, regularly or irregularly, 
 may be of infinite moment to the defendants, but 
 is no concern of the purchasers. A judgment, 
 in a case where the jurisdiction existed, and was 
 exercised, is title enough for him, though it should 
 be impossible to sustain the judgment as a rightful 
 decision, either in respect of the conformity of the 
 procedure to the practice of the court, or as a just 
 exposition of the rights of the parties upon the 
 merits in the appellate tribunal.^ Keeping in mind 
 the radical distinction between the want of author- 
 ity to divest the title, and irregularities in the mode 
 of exercising that authority, we may proceed to 
 consider, without again alluding to the difference 
 between the points essential to be noticed, and 
 those which the reasonable fears of the purchaser, 
 or the clearness of the abstract may conveniently 
 require, how a judicial record may best be ab- 
 stracted. 
 
 Sec. 122. The points usually noticed in making 
 an abstract of a judicial record, are: 1. The title 
 and name of the court; as judgment of the Su- 
 perior Court of Cincinnati, Ifo. 24,447. 2. The 
 names of all parties, plaintiff and defendant. 
 3. The summons or other notice, or publication by 
 which the defendants are brought into .court, the 
 date, the seal of the court thereon, who are named 
 therein as defendants, to what officer the writ is 
 
 ' Reardon v. Searcy, 2 Bibb, 202 ; Tprrill v. Auchauer, 14 
 Ohio St. 80; Cochran v. Loring, 17 Ohio, 409. 
 
204 SEARCH OF JUDICIAL RECORD?. 
 
 directed, and his return thereon, showing who were 
 served, when served, and how served. "Where the 
 defendants are verj^ niimerons, as often happens in 
 cases of creditors' bills, or other complicated pro- 
 ceedings in equity, it maybe advisable to state the 
 names of the defendants in columns, and mark 
 the number of them, for the convenience of check- 
 ing them oflE', one by one, as the facts of their be- 
 ing included in the writ, and the return, and their 
 answering, successively appear. If new parties are 
 added in the progress of the suit, their names 
 should also appear in this part of the abstract, as 
 well as in their natural chronological order in the 
 history of the case. As the rights of all persons 
 who are parties to the judgment or decree will be 
 bound thereby, and as no other person's rights will 
 be bound, it is a saving of labor, and tends to 
 greater certainty, to have them all stated plainly 
 at the outset. Where the defendants have been 
 brought into court by publication, or by the at- 
 tachment of their effects, or other substituted modes 
 of service, the peril of the mode adopted not be- 
 ing by law appropriate to the circumstances, re- 
 quires the most careful scrutiny into all the steps 
 of the proceeding, which should bo fully stated in 
 the abstract. 4. The nature of the claim made; 
 abstracting for that purpose the material parts of the 
 bill, petition, etc., so as to show that the- subject of 
 the action is within the jurisdiction of the court, 
 both in respect to the loeallty of the laud, and the 
 nature or objects of the suit. 5. AVhether the de- 
 fendants answered or suffered a default ; and if any 
 
SEARCH OF JUDICIAL RECORDS. 205 
 
 answered tlie date, and a brief statement of the na- 
 ture of the answer, so as to show that the defend- 
 ant submitted himself to the jurisdiction of the 
 court, by pleading to the merits of the action. Anon- 
 resident defendant who employs counsel to contest 
 the jurisdiction of the court that has seized his 
 eft'ects by attachment, does not submit himself to 
 its jurisdiction. 6. If any of the defendants are 
 minors, lunatics, or other persons deemed incompe- 
 tent to defend themselves, the appointment of a 
 a guardian for suit for them, the acceptance of the 
 appointment, and their answerii being filed, must 
 be noted. 'No judgment or decree can be taken 
 against such persons by default. The case must be 
 proved against them. The answer of the guardian 
 for suit, being always a mere formal submission of 
 the rights of the ward to the court, need not be 
 stated in the abstract in detail. If a manned wo- 
 man is a party, her husband must be a party with 
 her, unless they are contending with each other, in 
 which case she must appear by " her next friend." 
 A minor plaintiiF appears in the same manner. 
 7. The judgment, the date of it, the term of the 
 court, the page of the record in which it is entered, 
 with a siatement of the material parts of it, show- 
 ing authority to sell lands, if it be for a sale of 
 lands, or the amount, and the day from which in- 
 terest is to be computed, if it is against the person 
 only of the defendant ; and, if the -final record is 
 made up, the volume and page of that record. It ■ 
 will be observed that no notice is here taken of any 
 pleadings, motions, or other proceedings subsequent 
 
206 SEARCH OF JUDICIAL RECORDS. 
 
 to the answer or plea of the defendant, and before 
 judgment. This omission is intentional. For the 
 reasons already stated in section 120, such pi'oeeed- 
 ings are irrelevant to the question of the title, and 
 to insert them tends to distract the attention of 
 counsel from the points that are material. 
 8. Whether any notice of appeal, or bill of excep- 
 tions, or other proceedings which may stay the ex- 
 ecution of the judgment, or carry the cause to an 
 appellate court, appears of record ; and, if it does, 
 the nature of it, the date of the motion, and the 
 name of the party moving. As already stated, 
 this is not essential to the title as a matter of 
 law ; but it may afit'ect the salableness of the land, 
 as a matter of fact, in the view of purchasers, in 
 consequence of that distrust which all men natur- 
 ally feel about dealing with property over which 
 there is a judicial contest. 9. The writ of execu- 
 tion, or order of sale, to carry the judgment into 
 effect ; its date, the seal of the court thereon, to 
 what officer issued, the command of the writ di- 
 recting the sale of the particular lands ; or, if an 
 execution on a personal judgment, the nature of 
 the execution ; as, a levari facias. 10. The return 
 made by the officer upon the writ. If the writ 
 were an order out of chancery, it will simply show 
 a compliance with the order, such as advertising 
 the lands for sale, the appraisement of the lands, 
 the sale, the date of the sale, the name of the pur- 
 chaser, the price paid, and the date of the I'eturn. 
 But, if it be a writ of execution at law, it must 
 show a levy on lands, as a foundation for all sub- 
 
sEakch of judicial records. 207 
 
 sequent proceedings. A sale, without any levy, 
 on an execution at law, is invalid. ITeither an 
 omission to appraise the lands, where appraise- 
 ment is directed by law, nor a mistake as to the 
 time or mode of advertising the lands, will affect 
 the title of the purchaser.^ The question is not 
 whether the proceedings are regular; but whether 
 this writ, or this order of sale, authorized the 
 officer to sell these lands. If it does, the purchaser 
 may assume that the officer knew his duty as to the 
 mode of sale, and did it. 11. Where the law re- 
 quires the sale to be reported to the court, and con- 
 firmed by it, tlie order of confirmation is essential 
 to the completion of the sale, and the title will not 
 be valid without it. The confirmation of the sale, 
 the date of it, the name of the purchaser as 
 therein stated, and the order to deliver to him the 
 deed, must, therefore, be stated in the abstract. 
 12. If the cause was removed into an appellate 
 court, by appeal or by writ of error, the proceed- 
 ings thereupon are to be abstracted in a similar 
 manner, so as definitely to inform the purchaser of 
 the exact extent to which the judgment was af- 
 firmed or modified in the appellate tribunal, and 
 what order was therein made with respect to the 
 execution of the judgment, either by process issu- 
 ing out of that court, or by remanding the cause to 
 the inferior court to be carried into execution 
 there. 13. The person perusing an abstract having 
 a right to test the accuracy of every statement con- 
 
 'AUen V. Parrish, 3 Ohio, 188; Stall v. Macalester, 9 Ohio, 19. 
 
208 SEARCH OF JUDICIAL RECORDS. 
 
 tained in it, the searcher should be careful to give 
 him every possible means of information, by stat- 
 ing the dates of every transaction, the number of 
 the writs, if they are numbered, the term, volume, 
 and page of the records, and especially to point 
 out any departure fi'om the practice of the court 
 in any proceeding. It is, for example, assumed 
 that the process is issued, from the proper court, 
 signed by the proper officer, is in the usual form 
 etc.; and, if the facts are otherwise, they must be 
 stated. 
 
OI' SBAECHING FOR WILLS. 209 
 
 CHAPTER VIII. 
 
 OF SEARCHING FOR WILLS AND ABSTRACTING THEM. 
 
 123. General principles. — 124. Points to be noticed. — 125. 
 Alabama. — 126. Colorado. — 127. Georgia. — 128. Illinois.— 
 129. Indiana.- — 130. Iowa. — 131. Kansas. — 132. Kentucky. — ■ 
 133. Michigan. — 134. Minnesota. — 135. Nebraska. — 136. 
 New York. — 137. Ohio. — 138. Pennsylvania. — 139. Tennes- 
 see. — 140. Wisconsin. 
 
 Section 123. That a paper professing to be a 
 man's last will is in fact so, can be determined only 
 by a judicial sentence establishing it as such. In 
 the United States, this power is usually vested in 
 probate courts, or courts exercising like j urisdictiou, 
 whose determinations in establishing or rejecting a 
 will are final and conclusive on all courts, except 
 where the statute allows an appeal, and in proceed- 
 ings upon that appeal.^ The validity of the will is 
 determined, so far as it relates to land, by its con- 
 formity to the law of the state whereiu the lands 
 lie, and not by the law of the testator's domicil, nor 
 by the law of the place of the original probate.^ It 
 
 '1 Greenleaf Ev., sec. 528; 2 Greenleaf Ev., sec. 672; Inhab- 
 itants of Dublin v. Chadbourne, 16 Mass. 433; Tompkins, v. 
 Tompkins, 1 Story, 552; Bailey v. Bailey, 8 Ohio, 239; Poplin 
 V. Ilawke, 8 New Hamp. 121. 
 
 2 Wills V. Cowper, 2 Ohio, 124; Holmes v. Remsen, 20 John- 
 son, 229; Story Confl. of Laws, sec. 474. 
 18 
 
210 OF SEAKCHINO FOR WILLS. 
 
 is, therefore, proposed to consider separately the 
 laws of the several states respecting the formal ex- 
 ecution and proof of wills. But the points which 
 arise on all wills, which are established as wills, 
 may be first stated. 
 
 Sec. 124. The abstract should state the name of 
 the testator, the date of the will, the date of the 
 probate, the court in which probate was had, and 
 the page and volume of the record. If the time 
 for contesting the probate has gone by, the searcher 
 may assume that the testator was legally competent 
 to make the will, and that it was duly executed; 
 but if the heirs at law are minors, or married wo- 
 men, or non-resident, or otherwise within the sav- 
 ing of the statute of limitations, the abstract should 
 proceed to state all the facts which show a compli- 
 ance with the statutes of wills, such as the signing, 
 the attestation of the witnesses, and the like. The 
 formal proofs having been stated. An abstract of 
 the contents of the will, so far as it affects the land 
 in question, should follow. In wills drawn by unpro- 
 fessional persons, this is sometimes so difficult to 
 do as to make it desirable to state all the relevant 
 clauses verbatim. External inquiry is sometimes 
 necessary to learn whether the will is liable to be 
 frustrated, in whole or in part, in consequence of 
 provisions made for the widow, who declines to ac- 
 cept them, or in consequence of the limitations im- 
 posed by the statutes of descent and distribution on 
 the power of the husband to dispose of his whole 
 estate, or in consequence of the birth of a posthu- 
 
OF SEARCHING FOR WILLS. 211 
 
 mous child, or tLe return of a child supposed to be 
 dead, or in consequence of the will creating a case 
 of election in the devisee, and the like. The ques- 
 tions which arise upon the true construction of the 
 will are too numerous to be considered, and refer- 
 ence must be had to Jarmau on "Wills, and other 
 approved works upon the subject. The cases 
 wherein the testator charges a legacy on lands,^ or 
 creates trusts which require the purchaser of lands 
 to see to the proper application of the purchase 
 money ,^ or attempts to create an estate tail, or a 
 perpetuity beyond the limits allowed by law, will 
 require special attention. Powers given by the tes- 
 tator to his executors to sell lands are generally 
 regulated by statutes.^" Except in the case of per- 
 petuities, estates tail and the like, there is no con- 
 trol over the intention of the testator by the rules 
 of law. The attention of the courts, therefore, in 
 construing wills, is almost exclusively directed to 
 ascertaining the intention of the testator, which is 
 deduced, as in the case of deeds, from what is found 
 in the instrument.* The formal evidence of the 
 
 ' Decker v. Decker, 3 Ohio, 166; Coonrod v. Coonrod, 6 Ohio, 
 314; Nelson t>. Nelson, 19 Ohio, 282; Swift v. Nash, 2 Keen, 
 20; Graves v. Graves, 8 Simons, 43; Cross v. Kennington, 9 
 Beavan, 150. 
 
 ^Sec. 57. 
 
 ^Donley V. Shields, 14 Ohio, 359; 3 Eedfield on Wills, 3rd 
 ed., p. 136. 
 
 * Collins V. Hope, 20 Ohio, 500 ; Painter v. Painter, 18 Ohio, 
 265; Hisoooks v. Hiscocks, 5 Meeson & Welsby, 363; 1 Green- 
 leaf on Ev.,sec. 289. 
 
212 OF SEARCHING FOR WILLS. 
 
 authenticity of a will beiug, as will be seen pres- 
 ently, almost the same in the seven states named 
 in this chapter, and the rules of the common law 
 for the interpretation of wills being common to all 
 the states, the searcher's scrutiny will, in all the- 
 states, be mainly directed to ascertaining the mean- 
 ing of the instrument. 
 
 [Sec. 125. In Alabama, wills must be in writing, 
 signed by the testator, or some person in his pres- 
 ence and by his direction, and attested by at least 
 two' witnesses, who must subscribe their names 
 thereto in the presence of the testator. 
 
 If competent when they attest a will, the subse- 
 quent incompetency of witnesses does not invali- 
 date it."- Every person of the age of twenty-one 
 of sound mind may devise by his last will. 
 
 Married women may dispose of their separate 
 estates by will.^ 
 
 A devise passes after acquired property, unless 
 otherwise expressed.* "Where a will is made dis- 
 posing of the whole of the property of the testator, 
 who marries and has issue, and the wife or issue is 
 living at the time of his death, the will is revoked, 
 unless a provision is made for the issue by some 
 settlement, or unless the issue is pi'ovided for in the 
 
 ' [Ala. Code, 1876, sees. 2294, 2295.] 
 
 ^[Id., sees. 2274,2713. A convict sentenced to imprison- 
 ment for life, may m;ike a will within six months after his sen- 
 tence. Id., sec. 4512.] 
 
 ^ [Id., sec. 2289.] 
 
OF SEARCHING FOE, WILLS. 213 
 
 will, or mentioned in such a way as to show an in- 
 tention not to make such provision.' 
 
 Marriage of an unmarried woman operates as a 
 revocation of her will previously made.^ 
 
 Wills are proved in the probate courts, 1. When 
 the testator, at the time of his death, was an inhab- 
 itant of the county, in the probate court of such 
 county. 2. When the testator, not being an in- 
 habitant of the state, dies in the county, leaving 
 assets there, in the probate court of such county. 
 3. When the testator, not being an inhabitant of 
 the state, dies out of the county, leaving assets 
 there, in the probate court of the county in which 
 such assets or any of them are. 4. When tlie tes- 
 tator, not being an inhabitant of the state, dies, 
 leaving no assets therein, but assets thereafter come 
 into any county, in the probate court of that 
 county.^ 
 
 A will proved in another county may be admitted 
 to probate in the state, when the testator was not, 
 at the time of his death, an inliabitant of the state, 
 and his will has been duly proved in any other 
 state : 1. If the will has been admitted to probate 
 out of the state but within the United States, such 
 will, or a copy of the same, and the probate thereof, 
 must be certified by the clerk of the court in whicli 
 the same is proved, with a certificate of the judge 
 of the court that the attestation is genuine and by 
 the proper officer ; and, if the will is proved before 
 
 *[Ala. Code, 1876, sec. 2282.] 
 ^ [Id., sec. 2283.] 
 'fid., sec. 2304.] 
 
214 OF SEARCHING FOR AVILLS. 
 
 a court not having a clork, m before an oificer who 
 is his own clerk, the certificate of the judge of sach 
 court or of&cer stating such fact is sufficient. 2. If 
 tlie will has been admitted to probate out of the 
 United States, the will, or a copy of it, with the 
 probate, must be certified by the clerk or other of- 
 ficer of the court in which the will was proved, and 
 a certificate of the judge of the court that the at- 
 testation is genuine. "Where the will is proved be- 
 fore a court having no clerk, or an officer who is 
 his own clerk, the certificate must so certify, and 
 in that case the attestation must be certified to be 
 genuine by the judge of any court of record, or 
 the mayor or chief magistrate of any town, city, 
 county, or borough, or by any diplomatic, consular, 
 or commercial agent of the United States.' 
 
 Persons interested in a will, may contest its va- 
 lidity within five years after the admission of such 
 will to probate in the state by a bill in chancery in 
 the district in Avhich the will was probated, or in 
 the district in which a material defendant resides. 
 The issue may be tried by a jury or by the chan- 
 cellor. Infants and lunatics may contest the valid- 
 ity of a will within five years after their disabilities 
 are removed, but in uo case after twenty years from 
 probate.^] 
 
 [Sec. 126. In Colorado, wills must be reduced 
 to writing and signed by the testator, or some one 
 in his presence and by his direction, and attested 
 
 '[Ala. Code, sec. 2313.] 
 
 2 [Id,, sees. 2336, 2337, 2338.] 
 
OF SEARCHING FOR WILLS. 215 
 
 in the presence of the testator by two or more 
 creditable witnesses. 
 
 Every person of the age of twenty-one if a male, 
 or eighteen if a female unmarried, of sound mind 
 and memory, may dispose of their realty by will. 
 A married woman may make a will, but can not 
 devise away from her husband more than one-half 
 of her property, real and personal, without his con- 
 sent in writing.^ 
 
 A will is not revoked because a posthumous 
 child is not provided for. But, unless it appears to 
 have been the intention of the testator to disinherit 
 such child, the legacies shall be abated in equal pro- 
 portions, to raise a portion for such child, which 
 must be the same as if the testator died intestate.^ 
 
 Wills are proved in the county court of the 
 county where the mansion-house or known place 
 of residence of the testator is. If he has no place 
 of residence, and lands are devised in the will, 
 in the court of the county where the lands lie, or 
 in one of them, where there are lands in several 
 different counties. If the testator has no known 
 place of residence, and there are no lands devised 
 in the will, it may be proved in the county where 
 the testator died, or where his estate, or the greater 
 part of it, lies.' 
 
 Wills proved and recorded in other states or ter- 
 ritories of the United States, beyond the limits of 
 
 '[Gen. Laws, 1877, sees. 1750, 2788, 2789.] 
 ^ [Id., sec. 279.5.] 
 ' [Id., sec. 2800.] 
 
216 OF SEAKCHING FOK WILLS. 
 
 the state, and authorized by the laws of such states 
 or territories to be probated, maybe admitted to pro- 
 bate, when certified in the manner required by the 
 Act of Congress, without further proof of the exe- 
 cution of the same, and without notice to the heirs, 
 widow, or husband, and letters testamentary may 
 be issued thereon.^ 
 
 Heirs at law or persons interested may contest a 
 will, who were not summoned by actual service or 
 l)rocess, and who did not appear at the probate, at 
 iiny time within two years after its admission to 
 probate, by a bill in equity in the district court of 
 the county where the will is probated, or of the 
 county to which such county is attached for judicial 
 purposes. Persons under disability have a like 
 period after their disability is removed to contest 
 the will.^] 
 
 [Sec. 127. In Georgia, wills must be in writing, 
 signed by the testator, or by some other person in 
 his presence and by his express direction, and at- 
 tested and subscribed in the presence of the testa- 
 tor by three or more competent witnesses. 
 
 Subsequent incompetency of a witness will not 
 defeat a will if he is competent at the time of at- 
 testing the same.' Every person is entitled to 
 make a will, unless laboring under some disability 
 of the law. This disability arises either from want 
 
 1 [Gen. Laws, 1877, sec. 2814.] 
 
 2 [Id., sec. 2815.] 
 
 s [Code, 1873, sees. 2414, 2416.] 
 
OF SEARCHING FOR WILLS. 217 
 
 of capacity or want of perfect liberty. Infants un- 
 der fourteen years of age are considered wanting 
 in capacity to make a Tvill. 
 
 An insane person can not generally make a Avill. 
 A lunatic may, during a lucid interval. A mono- 
 maniac may make a will, if the will is in no Avay 
 the result of or connected with the monomania.' 
 
 Married Avoraen are generally incapable of mak- 
 ing wills, for want of perfect liberty of action. But 
 a married woman may make a will : 1. Where ex- 
 press power to Avill her separate estate is reserved 
 or granted to her in the instrument creating the 
 same, or by marriage contract. 2. When, having 
 a separate estate absolutely, or an estate in expec- 
 tancy, her husband consents to her disposing of it 
 by will. 3. Where her will is in execution of a 
 power vested in her. 4. Whenever, by reason of 
 the abandonment of her husband, or a divorce from 
 bed and board, or other cause, the law declares her 
 to have the right of a, feme sole as to her own earn- 
 ings. Conviction of a crime and imprisonment 
 does not deprive a person of the power to make a 
 will, nor does any imprisonment, unless it is used as 
 duress to compel its execution.^ 
 
 Wills are proved by the courts of ordinary, which 
 have exclusive jurisdiction thereof. The residence 
 
 1 [Code, sees. 2405, 2406, 2407,] 
 
 "[Id., sees. 2410, 2411. Marriage of testator, or birth of a 
 child subsequent to making a will for whom no, provision is 
 made, operates as a revocation of the will. Id., sec. 2477.] 
 19 
 
218 OF SEARCHING FOR WILLS. 
 
 of a testator at bis death gives jurisdiction to the 
 ordinary of that county.^ 
 
 The probate of a will may be either in common 
 form or solemn form. In the former, a will is 
 proved and admitted to record upon the testimony 
 of a single subscribing witness, and without notice 
 to any one. But such probate and record is not 
 conclusive upon any one interested in the es- 
 tate adversely to the will, and if it is afterward set 
 aside, it does not protect the executor in any of his 
 acts, further than the paj'ment of the debts of the 
 estate. Purchasers under sales from him legally 
 made will be protected, if bona fide and without 
 notice.^ 
 
 The probate in solemn form is where, after due no- 
 tice to all the heirs, the will is proved by all the wit- 
 nesses in existence and within the jurisdiction of 
 the court, or by proof of their signatures and that 
 of the testator, where the witnesses are dead. Such 
 probate is conclusive upon all the parties notified.' 
 
 Foreign wills may be admitted to probate in the 
 state by the court of ordinary of the county where 
 the testator was domiciled at the time of his death, 
 or of any county of the state in which any of the 
 property is situated, if he is a foreigner, when a 
 copy of the will and of the probate, authenticated 
 by the seal of the court where the same is made, is 
 received.* 
 
 1 [Code, sees. 331, 2421.] 
 
 »[Id., sec. 2423.] 
 
 '[Id., sec. 2424] 
 
 ^[Sup. to Code, 1878, sec. 381 ; L., 1878-9, p. 146.] 
 
01 SEARCHING FOR WILLS. 219 
 
 The probate of a will in common form becomes 
 conclusive upon the parties in interest after the ex- 
 piration of seven years from the time of probate, 
 except minor heirs at law, who require proof in 
 solemn form, and interpose a caveat at any time 
 within four years after arriving at agv3. If the will 
 iu such a case is refused probate and record in sol- 
 emn form, an intestacy is declared only as to such 
 minor, and not as to others whose right to a 
 caveat is barred by lapse of time.' 
 
 I'J'otice of a motion for probate in solemn form 
 must be personal, if the party resides in the state, 
 at least ten days before the term of court when the 
 probate is made. If the party resides without the 
 state, an order of publication must be made.^] 
 
 Sec. 128. In Illinois, wills are proved before the 
 county court of the county wherein the mansion 
 house or place of residence of the testator was ; or, 
 if he had no place of residence, in the county 
 wherein the land devised lies, or in one of the 
 counties where there is land in several different 
 counties [or, if he have no such place of residence, 
 and there be no lands devised in such will, it may 
 be probated either in the county where the testa- 
 tor died, or wherein his estate, or the greater part 
 of it, lies], and are recorded in the court of pro- 
 bate.' Any person interested may, within three 
 years after the probate of the will, contest the will 
 
 '[Code, 1873, sec. 2425.] 
 
 i' [Id., sec. 2427.] 
 
 '[R. S. Ills. 1880, p. 1538, sec. 11.] 
 
220 OP SEARCHING FOR WILLS. 
 
 in the county court of the county wherein the will 
 was proved, by hill in chancery. [An issue at law 
 is made up, which is tried in the circuit court of 
 the county wherein the will is probated, before a 
 jury.] Infants, married women, persons absent 
 from tlie state, and persons of unsound mind, are 
 allowed a like period after the removal of their re- 
 spective disabilities, to contest the will. If not 
 contested within the time allowed, the probate 
 is conclusive on all parties concerned.* Men, 
 twenty-one years of age, and unmarried women, 
 of eighteen years of age, may make wills, which 
 must be in writing, signed by the testator, or by 
 some person in his presence, and by his direction, 
 and attested in the presence of the testator by 
 two or more credible witnesses, two of whom de- 
 claring on oath or affirmation that they were pres- 
 ent and saw the testator sign the will in their pres- 
 ence, or acknowledge the same to be his act, and 
 that they believe the testator was of sound mind 
 and memory at the time of acknowledging the 
 same.^ Married women may dispose of their sep- 
 arate estates by will. The birth of a child sub- 
 sequent to the date of a will, is not a revocation, 
 but, unless it appears b}' the will that the testator 
 intended to disinherit such child, he will be en- 
 titled to receive sucli portion of the father's estate 
 as he would have had in case the testator had died 
 
 1 [R. S. Ills. 18S0, p. 1530, see. 7.] 
 
 2 [Id., p. 1534, sees. 1, 2.] 
 
Q¥ SEARCHING FOR WILLS. 221 
 
 intestate.'' Powers given by executors by will to 
 sell lands, may be executed by the survivor.^ The 
 lands of decedent are liable for the debts of his 
 estate, but, if aliened by the heir to a bona fide pur- 
 chaser before an action is brought by the creditor, 
 the heir or devisee, and not the purchaser, is liable 
 ,to the creditor for such debts to the value of the 
 land.' Wills proved according to the laws of any of 
 the United States, or the territories thereof, or of any 
 country oat of the United States, accompanied with 
 a certificate of the proper officer that the will was 
 duly executed and proved agreeably to the laws and 
 usages of that state or country in which the will 
 was executed, are good in like manner as wills 
 made and executed in the state.* Such wills may 
 be recorded in the same office where deeds or other 
 instruments concerning real estate may be required 
 to be recorded.^ Powers given to executors to sell 
 lands in such wills, may, upon the recording of the 
 will, with due proof of its probate abroad, in the 
 probate or county court of the county in which the 
 land lies, be executed in the same manner as though 
 the executor had qualified in the state. ^ Deeds made 
 in pursuance of powers vested by wills executed out 
 of the state, are valid, though the will was never 
 proved in the state.' 
 
 1 [R. S., p. 543, sec. 10.] 
 " [Id,, p. 73, sec. 96.] 
 '[Id., p. 743, sec. 12.] 
 *[Id.,p. 1537, sec. 9.] 
 s[Id,p. 317, sec. 33.] 
 
 * [Id , p. 59, sec, 42. The executor or administrator must 
 give a bond for costs.] 
 '[Id., p. 317, sec. 34.] 
 
222 OF SEARCHING FOR WILLS. 
 
 Sec. 129. In Indiana, wills are proved in the 
 circuit court, when in session, or before the clerk 
 thereof in vacation, in the county wherein the 
 testator resided at the time of his death, or, if 
 not an inhabitant of the state, in the county 
 where he died, leaving assets therein ; or, if not 
 an inhabitant of the state, and he died out 
 of the state, in the county wherein he left assets, 
 or where the testator, not being an inhabitant 
 of the state, died out of the state, leaving no 
 assets in the county, but assets come into the 
 county afterward.^ ^"J person may contest the 
 validity of the will, at any time within three 
 years from the time it has been offered for probate, 
 by a proceeding in the circuit court of the county 
 where the testator died, or where any part of his 
 estate is f and the case may be carried by appeal, 
 or writ of error, to the supreme court.' Infants, 
 and persons absent from the state, or of unsound 
 mind, are allowed two years after their disabilities 
 are removed to contest the will.* A will must be 
 in writing, signed by the testator, or by some one 
 in his presence, with his consent, and attested and 
 subscribed in his presence by two or more com- 
 petent witnesses.'^ Since May 31st, 1852, mar- 
 ried women may make wills." Every devise in 
 terms denoting the testator's intention to devise 
 
 i[R. S. Ind. 18S1, sees. 2579, 2580.] 
 
 2 [Id., sec. 2596.] 
 
 '[Id., sec. 2G05.] 
 
 * [Id., sec. 2601.] 
 
 s [Id., sec. 2576.] 
 
 "[Id., sec. 2557.] 
 
OF SEARCHING FOR WILLS. 223 
 
 his entire interest in all his real or personal prop- 
 erty', will pass all the estate in such property, 
 which he was entitled to devise at his death.^ 
 Conditions in wills, restraining a wife from mar- 
 rying again, are void.^ The birth of legitimate 
 issue subsequent to the date of the will, though 
 posthumous, will, if the issue survive the testator, 
 operate as a revocation of the will, unless provis- 
 ion is made therein for such issue.* The title of 
 the purchaser of land, in good faith, and for val- 
 uable consideration, from the heir of any person 
 who died seized of the land, can not be impaired 
 by virtue of any devise, unless the will is proved 
 and recorded in the ofBce of the cletk of the court 
 having jurisdiction, within three years after the 
 death of the testator, except in cases where the 
 devisee was a minor, or of unsound mind, or im- 
 prisoned, or out of the state, at the time- of the 
 testator's death, or the existence of the will was con- 
 cealed from or was unknown to him, in which cases 
 the limitation shall not commence until after the 
 expiration of one year from the time the disability 
 is removed, or said will has come into the control 
 of the devisee or his representative, or has been 
 deposited in the clerk's office of the circuit 
 court.* Written wills proved or allowed in any 
 other of the United States, or in any foreign conn- 
 try, according to the laws of such state or coun- 
 
 '[R. S. lad. ISSl.seo. 2567.] 
 
 ^[Id.] 
 
 ' [Id., sec. 2500.] 
 
 * [Id., sec. 2575.] 
 
224 01" SBAKCHING FOB. WILLS. 
 
 try, may, on proper proof of the probate abroad, be 
 received and recorded ia the circuit court of the 
 county in which there is any estate on which the 
 will may operate ; and, when so recorded, have the 
 same effect as if they had been originally admitted 
 to probate, and recorded in this state.^ ISTo will 
 executed in the state can be admitted to record 
 unless executed according to the laws of the 
 state.^ 
 
 Sec. 130. In Iowa, the circuit court has power 
 to take probate of wills of persons who, at the time 
 of their death, were residents of the county, or who 
 died non-residents, but having property to be ad- 
 ministered upon within the county. The probate 
 is conclusive, unless set aside by an original or 
 appellate proceeding in the district court.^ Any 
 person of full age and sound mind may dispose of 
 property by will, in writing, witnessed by two com- 
 petent witnesses, and signed by the testator, or by 
 some person in his presence and by his express di- 
 rection.'' Posthumous children, unprovided for by 
 the father's will, inherit the same interest as though 
 no will had been made.' After acquired property 
 passes by the will. Wills proved and allowed in 
 
 ' [R. S. Ind., sees. 2591-2593.] 
 
 ''[Id., sec. 2954] 
 
 = [Stat. Ia. 1880, sec. 2353.] 
 
 * [Id., sees. 2322, 2326. A married woman may devise prop- 
 erty, real and personal, which she owns in her own right, ac- 
 quired by descent, gift, or purchase. Id., sec. 2202.] 
 
 ' [Id., sec. 2334.] ' 
 
OF SEARCHING FOR WILLS. 225 
 
 any other state or country are allowed and recorded 
 in any county in which it may be desired to use tliem, 
 upon the production of a copj' thereof to the proper 
 county court, and of tlie original record of probate, 
 duly aiTthenticated by the attestation of the clerk of 
 the court in which the will was proved. If there be 
 no clerk, such attestation maybe made by the judge 
 or presiding officer, and in all cases, if the clerk or 
 officer making such attestation have a seal of of- 
 fice, such seal shall be annexed to the attestation.^ 
 
 Sec. 131. In Kansas, wills are proved and re- 
 corded in the probate court of the county in which 
 the mansion-house or place of abode of the de- 
 ceased is situated ; if he had no place of abode, then 
 iu the county in which the land, or a part of it, lies. 
 The probate is conclusive, unless set aside by an 
 original or appellate proceedjng in the district 
 court. Any person of sound mind and full age, 
 including married women, may make a will, which 
 must be in writing, signed at the end by the testa- 
 tor, or by some person in his presence, and by his 
 express direction, and attested and subscribed in 
 the presence of the testator by two or more com- 
 petent witnesses, who saw the testator subscribe or 
 heard him acknowledge the same.^ After acquired 
 property passes by the will.' Posthumous children, 
 unprovided for by the father's will, inherit the same 
 
 '[Stat. la., 1880, sec. 2-351.] 
 
 = [Comp. Laws, 1881, seo. 6114.] 
 
 ^[Id., p. 1007, sec. 53.] 
 
226 OF SEARCHING FOR WILLS. 
 
 as thouEfh. no such will had been made.* Persons 
 interested in, may contest the validity of a will 
 within two years after probate. Persons under le- 
 gal disabilities have a like period in which to con- 
 test a will after their disabilities are removed. The 
 mode of contesting is by a civil action in the dis- 
 trict court of the county in which the will is pro- 
 bated, which may be brought at any time within 
 two years after the probate of a will.^ The rule in 
 Shelly's case as to wills is abolished.' 
 
 Authenticated copies of wills executed in other 
 states or countries, in conformity with the laws of 
 such states or countries, maybe admitted to record 
 in this state where any part of the property may be 
 situated. When so admitted, a copy of such re- 
 corded will, with a copy of the order of record, cer- 
 tiiied by the probate judge under the seal of the 
 court, may be filed and recorded in the office of the 
 probate court of any other county in the state where 
 any of the property is situated.* 
 
 Sec. 132. In Kentucky, the probate of a will is 
 confined to the county court of the county of the 
 testator's residence ; or, if he had no residence in 
 the state, and the will devises land, then to the 
 county where the land, or a part of it, lies, or if no land 
 is devised, then to the county where he died, or where 
 there may be any debt or demand owing him.° 
 
 1 [Comp. Laws, ISSl, sec. 6148.] 
 
 2 [Id., sees. 6131, 6132.] 
 «[Id., sec. 6104.] 
 '[Id., sec. 6136.] 
 
 5 [Gen, Stat. Ky., 1881, pp. 837, 838, sees. 26, 28.] 
 
OF SBAROIIINS FOR WILLS. 227 
 
 As in other states, no will can be received in evi- 
 dence until it has been allowed and admitted to 
 record by the county court. The probate is con- 
 clusive until reversed.' 
 
 An appeal lies from the county court to the cir- 
 cuit court of the same county, and thence to the 
 court of appeals, upon every order admitting a will 
 to record or rejecting it, within five years after ren- 
 dering the order of probate or rejection in the 
 county court, and to the court of appeals within 
 one year after the final decision in the circuit 
 court.^ 
 
 I^on-residents not personally served with process 
 on the probate of a will, or any other person inter- 
 ested who is not a party by actual appearance or 
 being personally served, may, within three years 
 after a final decision admitting or rejecting a will, 
 impeach the decree; and infants not parties to the 
 original contest are not barred until twelve months 
 after attaining full age.^ 
 
 A married woman can not make a will, except to 
 dispose of an estate secured to her separate use, or 
 to exercise a special power to that effect.* 
 
 Since 1797, no will is valid unless it is in writing, 
 with the name of the testator subscribed thereto, 
 by himself or by some other person in his presence 
 and by his direction. If not wholly written by the 
 testator, the subscription must be made, or the will 
 
 '[Id.] 
 
 '[Id., sec. 27.] 
 
 ' [Id., p. 840, sec. 37.] 
 
 *[Id,,pp. 831, 832, sees. 2, 4.] 
 
228 OF SEARCHING FOR WILLS. 
 
 acknowledged, by him in the presence of at least 
 two credible witnesses, who must subscribe the will 
 with their names in the presence of the testator.^ 
 
 ISTo person under twenty-one can make a will, 
 except in pursuance of a power specially given, and 
 except that a father, though under twenty-one 
 years of age, may appoint by will a guardian to 
 his child .^ 
 
 To pass lands, the wills of non-residents must be 
 executed conformably to the law of Kentucky.' 
 Powers of appointment are regulated by the stat- 
 ute. Devisees take subject to the testator's debts; 
 but lands aliened by the heir or devisee before suit 
 brought by the creditor, are not liable to the claims 
 of creditors in the hands of bona fide purchasers 
 for a valuable consideration.* The rule in Shelly's 
 case is abolished as to deeds and wills.' 
 
 [Sec. 183. In Michigan, wills must be in writing, 
 signed by the testator or by some person in his 
 presence, and by his express direction, and attested 
 and subscribed in the presence of the testator by two 
 or more competent witnesses.^ 
 
 A married woman can make a will without ob- 
 taining the consent of her husband.' 
 
 i[Gen. Stat. Ky., sec. 3, 1881, pp. 831, 832, see. 5.] 
 
 ^[Id.,p. 83:2, sec. 3.] 
 
 »[Id.,p. 839, sec. 30.] 
 
 *[Id.,p. 4S9, sees. 5, 8.] 
 
 6 [Id., p. 586, see. 10.] 
 
 «[Comp. Laws. 1871, sec. 4326.] 
 
 ' [Laws, 1873, p. 13.] 
 
OP SEARCHING FOR WILLS. 229 
 
 A devise of land conveys all the estate of the 
 devisee, unless the contrary is expi-essed.' 
 
 After acquired property passes by a devise, if it 
 manifestly appears to have been the intention of 
 the testator.^ Children born after the naaking of 
 a will, or omitted by mistake in the will, have the 
 same proportion of the estate as in ease of intestacy.^ 
 
 Wills are proved in the probate court, or on ap- 
 peal in the circuit or supreme court, and the pro- 
 bate is conclusive as to their due execution.^ 
 
 Wills of land situated in this state, executed ac- 
 cording to the laws of any other state or country, 
 may be admitted to probate in this state, on the 
 production of a certified copy.''] 
 
 [Sec. 134-. In Minn,esota, wills must be proved 
 and allowed in the probate court, or on appeal in 
 the district court, and the probate is conclusive as 
 to their execution. 
 
 Wills duly proved in any of the United States, 
 or in any foreign country or state, according to the 
 laws of such state or country, may be allowed, filed, 
 and recorded in the probate court of any county in 
 which the testator has real or personal estate.* 
 
 Wills must be in writing, signed at the end by 
 
 I [Comp. Laws 1871, sec. 4323.] 
 
 '[Id., sec. 4324.J 
 
 ' [Id , sees. 4346, 4347.] 
 
 * [Id., see. 4341. A recent act of the legislature of this state 
 enables a person to establish his will in his life-time, and pre- 
 vent any contest over it after his death. Public Acts, 1883.] 
 
 5 [Id., sec, 4342; Public Acts 1881, p. 85.] 
 
 «[Stat. 1878, p. 569, seos. 17, 18.] 
 
230 OF SEAKCHING FOR WILLS, 
 
 the testator or by some pei'son in his presence, and 
 bj' his express direction, and attested and subscribed 
 in his presence by two or more subscribing wit- 
 nesses. If witnesses are competent at the time of 
 the attestation of a will, their subsequent incom- 
 petency will not prevent its probate.^ 
 
 Married women may dispose of real or personal 
 property by will held by them in their own 
 riglit.^ 
 
 Children born after making a will, or omitted by 
 mistake in the will, have the same share of the 
 estate of the testator as though he died intestate.' 
 
 An appeal lies from the probate to the district 
 court. Upon the filing of the return of the pro- 
 bate court in the office of the clerk of the district 
 court, such appeal is presumed to have been duly 
 proved.* 
 
 The rule in Shelly's case is abolished in this 
 state.'^ 
 
 The provisions for contesting wills are the same 
 as in Wisconsin.'] 
 
 [Sec. 135. In ITebraska, every person of full age 
 and sound mind, including married women, having 
 property in their own right, may make a will.' 
 
 '[Stat. 1878, p. 568, sec. 5.] 
 
 ='[Id., p. 567, sec. 1.] 
 
 5 [Id., p. 570, sees. 22, 23.] 
 
 *[Id,, pp. 575, 57(5, sees. 13, 18.] 
 
 '[Id., p. 562, sec. 28.] 
 
 « [Id., p. 569, sec. 14.] 
 
 '[Conip. Stat. 1881, p. 226.] 
 
OF SEARCHING FOR WILLS. 231 
 
 "Wills must be in writing, signed by the testator 
 or by some person iu his presence, and by his ex- 
 press direction, and attested and subscribed in the 
 presence of the testator by two or more competent 
 Avitnesses. If the witnesses are competent at tlie 
 time of attesting the execution, their subsequent 
 incompetency will not prevent the probate of the 
 will.^ 
 
 Wills duly proved and allowed in any of the 
 United States, or in any foreign country or state, 
 according to the laws of such state or country, may 
 be allowed, filed, and recorded in the probate court 
 of any county in which the testator may have' real 
 and personal estate on which such will may op- 
 erate.^ 
 
 After acquired estate passes by a will, if it shall 
 manifestly appear by the will to have been the in- 
 tention of the testator.' 
 
 Posthumous children have the same share of the 
 testator's estate, when unprovided for, as in case 
 of intestacy.''] 
 
 [Sec. 136. In 'New York, the surrogate's court 
 of each county has jurisdiction, exclusively, of ev- 
 ery other surrogate's court to take the proof of a 
 will, in the following cases : 1. Where the deceased 
 was at the time of his death a resident of that 
 county, whether his death happened there or else- 
 
 i[Comp. Stat. 1881, p. 227.] 
 ''[Id., Ch. 23, sec. 144] 
 '[tcl.,seo. 125.] 
 * [Id, sec. 148.] 
 
232 OF SEARCHING FOR WILLS. 
 
 where. 2. "Where the decedent, not being a resi- 
 dent of the state, died within that county, leaving 
 personal property within the state, or which has 
 since his death come into the state and remains un- 
 ndministered. 3. "Where the decedent, not being 
 a resident of the state, died without the state, leav- 
 ing personal property within that county, and no 
 other, or which since his death has come into 
 that county, and no other, and remains unadminis- 
 tered. 4. "Where the decedent was not at the 
 time of his death a resident of the state, and the 
 petition for probate of his will has not been filed 
 in any surrogate's court; but real estate of the 
 decedent to which the will relates, or which is sub- 
 ject to disposition, is situated within that county, 
 and no other .^ 
 
 All persons, except idiots, persons of unsound 
 mind, and infants, may devise their real estate by 
 will.^ 
 
 "Wills must be in writing, subscribed by the tes- 
 tator at the end thereof, in the presence of each of 
 the attesting witnesses, or acknowledged by him to 
 have been so made to each of the attesting wit- 
 nesses. The testator, at the time of making such 
 subscription, or at the time of acknowledging the 
 same, shall declare the instrument so subscribed to 
 be his last will and testament. There must be at 
 least two attesting witnesses, each of whom must 
 sign his name as a witness at the end of the will, 
 
 ^ [(Jode Civil Procedure, sec. 2476.] 
 ^ [R. S., vol. 3, p. 2283.] 
 
OF SEARCHING SOR WILLS. 233 
 
 at the request of the testator. The witnesses must 
 write opposite their names their places of resi- 
 dence.* 
 
 Posthumous children, unprovided for, have the 
 same proportion of the estate of testator as though 
 he had died intestate.^ 
 
 A will executed by an unmarried woman is 
 deemed revoked by her subsequent marriage, as is 
 also that of a man who marries and has issue by 
 such marriage.^ 
 
 Every will made by a testator in express terms 
 of all his real estate, or in any other terms denot- 
 ing his intent to devise all his real estate, shall be 
 construed to pass all the real estate which he ac- 
 quires and devises at the time of his death.* 
 
 A devise to a person who at the time of the 
 death of the testator is an alien, unauthorized by 
 statute to hold real estate, is void, and the interest 
 so devised descends to the heirs at law.^ 
 
 "Wills of real property situated in this state, and 
 executed according to the laws of another state, 
 and duly admitted to probate there, may be ad- 
 mitted to probate in this state, on the production 
 of an exemplified copy.^ 
 
 The validity of wills may be determined by the 
 supreme court in a proper action for that jjurpose, 
 
 ' [R. S., vol. 3. pp. 2285, 2286, sees. 40, 41.J 
 ^ [Id,, p. 2287, sec. 49.] 
 = [Id,,p. 22S6, sees. 43, 44.] 
 *[Id.,p. 2284, sec. 5.] 
 ' [Id., p. 2284, sec. 4.] 
 «[Codc, .sec. 2703.] 
 20 
 
234 OF SEARCHING FOE WILLS. 
 
 in wliicli all persons interested may be made par- 
 ties. After final judgment in any sucli action, any 
 party may be enjoined from setting up or impeach- 
 ing tlie will.^ 
 
 The limitation of an action to establish a will is 
 six years.^ But where a will has been lost, con- 
 cealed, or desti'oyed, the cause of action is not 
 deemed to have accrued until tlie discovery by the 
 plaintiff or person under whom he claims of the 
 facts on which its validity depends.] 
 
 Sec. 137. In Ohio, wills are proved before the 
 probate court of the county where any real or per- 
 sonal estate devised by the will may be situated, 
 and are, together witli the evidence of the probate, 
 filed and recorded there. Wills proved prior to 
 July, 1853, were proved in the court of common 
 pleas of the county. On the transfer of jurisdic- 
 tion of probate matters from that court to the pro- 
 bate court, in July, 1858, the records of wills pre- 
 viously made in the cohimon pleas were transferred 
 to the probate court, and all searches for wills will, 
 therefore, now be made in the latter court. Wills 
 made since 1831, in another state or nation, exe- 
 cuted and proved according to the law of the place 
 where made, were admitted to probate in Ohio, but 
 did not affect property there, unless made in con- 
 formity to the law of Ohio ;' but wills made since 
 October 1st, 1840, in another state or nation, exe- 
 
 1 [R. S., vol. 3, p. 2284.] 
 
 2 [Code Civil Procedure, sec. 382.] 
 ' Curwen, 1905. 
 
OP SEARCHING J.OR WILLS. 235 
 
 cuted and proved according to the law of the place 
 where made, may be admitted to record in Ohio, 
 and when so recorded in the counties where the 
 lands lie, have the same effect as if originally made 
 in Ohio, in conformity to the laws of Ohio.^ Wills 
 devising real estate, wherever made, are, either by 
 original probate or by copies of records, admitted 
 to record in every county in which such real estate 
 may be situated. Every will must be in writing, 
 and signed at the end thereof by the party making 
 it, or by some other person in his presence and by 
 his express direction, and must be attested and sub- 
 scribed in the presence of the testator by two or 
 more competent witnesses, who saw him subscribe 
 or heard him acknowledge it.^ Men aged twenty- 
 one, and women aged eighteen years, married or 
 unmarried, have, since 1805, been competent in 
 Ohio to make wills.^ Probate of the will is" con- 
 clusive, unless contested by petition in the court 
 of common pleas of the county within two years 
 after probate had, saving the rights of infants, 
 married women, and persons absent from the state, 
 or of insane mind, or in captivity, for a like period 
 after their respective disabilities are removed.* 
 The rights of bona fide purchasers, without knowl- 
 edge of a will, to any lands in the state derived 
 from the heir of any person not a resident of the 
 state at the time of his death, can not be defeated 
 
 ' Curwen, 688, 1005. 
 ^ [R. S. Ohio, ser. 5916.] 
 » [Id., sec. 5914.] 
 * [Id., sec. 5933,] 
 
236 OB SEARCHING FOR WILLS. 
 
 by tlie production of a will of the ancestor, unless 
 the will is offered for record in this state within 
 four years from the final probate of the will abroad.^ 
 A devise passes the whole estate without words of 
 perpetuity, and also after acquired lands. The rule 
 in Shelly's case does not apply to wills made subse- 
 quent to October 1st, 1840, but it does apply to wills 
 made before that date.^ The will of a childless person 
 is revoked by the subsequent birth of a child, though 
 posthumous, except where the child is otherwise 
 provided for, or the will shows an intention not to 
 provide for it.^ The birth of another child, or the 
 return of a child supposed by the testator when he 
 made his will to be dead, operates as a partial revo- 
 cation by letting in those children to a share of the 
 estate in the same manner as if the testator had 
 died intestate.* The election of a widow to take 
 against the will must be made within a year from the 
 service of the citation issued by the judge of the pro- 
 bate court. But if a proceeding to contest the will 
 be commenced within the year, the widow is entitled 
 to make her election within three months after 
 proceedings sustaining the will.'' 
 
 Sec. 138. In Pennsylvania, wills are proved be- 
 fore the register of the county, and are recorded in 
 his office. The probate is conclusive, unless con- 
 tested within live years from the date of probate, 
 
 ' [ R. S. Ohio, sec. 5967.] 
 ^ [Id., sec. 59G8.] 
 5 [Id., sec. 59.59.] 
 * [Id, sec. 5961.] 
 5 [77 Ohio L. 307.] 
 
OF SEARCHING FOR WILLS 237 
 
 by caveat and an action at law duly prose- 
 cuted.' Copies of wills proved in any other state 
 or country, accoi'ding to the laws thereof, may be 
 offered for probate before the register.^ 
 
 Every will must be in writing, and unless the 
 person making it shall be prevented by the extrem- 
 ity of his last sickness, shall be signed by him at 
 the end thereof, or by some person in his presence 
 and by his express direction ; and, in all cases, shall 
 be proved by the oaths or affirmations of two or 
 more competent witnesses.' A married woman can 
 not make a will, except as to her separate estate.* 
 A devise passes the whole estate without any words 
 of perpetuity.^ 
 
 Lands acquired after the date of the will pass by 
 the will to the devisee under general words." Mar- 
 riage of a man, and the birth of a child not pro- 
 vided for in the will, though born after the death 
 of the father, operate as a revocation pro tanto of a 
 will made before marriage.'^ 
 
 [Sec. 139. In Tennessee, wills are probated in the 
 court of the county where the testator had his us- 
 ual residence at the time of his death, or, in case 
 ho had fixed places of residence in more than 
 
 ^[Brightly's Purd., p. 407, sees. 12, 13.] 
 
 ^ [Id., p. 40"), sec. 7,] 
 
 '[Id, p. 1474, sec. 6.] 
 
 *[Id-.,p. 1477, sec. 21. J 
 
 5 [Id., p. 1475, sec. 10.] 
 
 ''[Id., p. 1476, sec. 11.] 
 
 ' [Id., p. 1477, sec. 18, note c] 
 
238 OF SEARCHING BOE, WILLS. 
 
 one county, in either of said coauties.^ They must 
 be -written in the testator's lifetime, and signed by 
 him or by some other person in his presence, and 
 by his direction, and subscribed in his presence by 
 two witnesses at least, neither of whom is inter- 
 ested in the devise of the lands. 
 
 A paper writing, appearing to be the will of the 
 deceased person, written by him, having his name 
 subscribed or inserted in some part of it, and 
 found after his death among his valuable papers or 
 lodged in the hands of another for safe keeping, 
 is sufficient to convey lands, if the handwriting is 
 generally known by his acquaintances, and it is 
 proved, by at least three credible witnesses, that 
 they verily believe the handwriting, and every part 
 of it, to be his. 
 
 Written wills with witnesses, when not con- 
 tested, must be proved by at least one of the sub- 
 scribing witnesses, if living; when contested, by 
 all the living witnesses, if to be found, and by 
 such other persons as may be produced to sup- 
 port it.^ 
 
 A married woman may dispose of any estate 
 secured to her separate use, or in the execution of 
 a special power to tkat effect by will in writing, 
 subscribed by her, or by some other person in her 
 presence, and by her direction, and the subscrip- 
 tion must be made, or the will acknowledged, in 
 the presence of at least two witnesses subscribing 
 
 i[Laws 1S71, sec. 2169.] 
 
 ■' [M., sees. 2162, 2163, 2171, 2172 ] 
 
OF SEABCHING FOR WILLS. 239 
 
 the will with their names, in the presence of the 
 testatrix.^ 
 
 "Wills executed in other states or territories, or in 
 the district of Columbia, must be proved according 
 to the laws of the state, and certified in the man- 
 ner prescribed by the act of Congress.^ 
 
 The circuit court has exclusive jurisdiction to 
 try and determine all issues made up to contest the 
 validity of wills.' 
 
 The probate in common form may be contested, 
 even after eighteen years." 
 
 But it is settled, by numerous decisions, that the 
 judgment of the circuit court is conclusive and 
 final upon all persons interested, whether parties 
 to the recoj'd or not.^ 
 
 Children born after the making of a will, either 
 before or after the death of the testator, not pro- 
 vided for by settlement made by testator in his 
 lifetime, succeed to the same portion of the testa- 
 tor's estate as though he had died intestate.' 
 
 The rule in Shelly's case is abolished in this 
 state.'] 
 
 [Sec. 140. In "Wisconsin, every person of full 
 age, and any unmarried woman of the age of 
 
 '[Laws 1871, sees. 2168, 24S0a and c] 
 ^ [Id., sec. 2182.] 
 »[Id., sec. 4227.] 
 * [Gibson V. Lane, 9 Yerg. 475. 
 
 ^[Patton V. Allison, 7 Humph. 320; Roberts v. Stewart, 2 
 Swan, 162, 166; Fory w. Taylor, 1 Head. 594.] 
 «[rd., sec. 2193.] 
 '[Id., sec. 2008] 
 
240 OF SEAKCHIXG FOK WILLS. 
 
 eighteen, and upward, of sound mind and memory, 
 may make a will.^ 
 
 Wills must be in writing, signed by the testator 
 or by some person in his presence, and hy liis ex- 
 press direction, and attested and subscribed in the 
 presence of the testator by two or more competent 
 witnesses. If the witnesses are competent at the 
 time of the execution of the will, their subsequent 
 incompetency will not prevent the probate of the 
 same.^ 
 
 Wills are proved in the county court, or on ap- 
 peal in the circuit or supreme court.^ 
 
 Wills executed out of the state, when executed 
 according to the laws of this state, or according 
 to the laws of the state or country in which they 
 are executed, may he admitted to probate in this 
 state.* 
 
 When proved in the proper court of any other 
 state or territory, a copy of such will and of the 
 probate thereof, duly authenticated, may be re- 
 corded in the office of the register of deeds of any 
 county in which any of the lands are situated.^ 
 
 When any will is deposited with the county 
 court, the court shall appoint a time and place of 
 proving it, when all concerned may appear and con- 
 test the probate thereof, and cause notice of such 
 time and place to be given by personal service ou 
 
 • [R. S. Wis. 1878, sees. 2277.] 
 2 [Id., sec. 2282.] 
 ^ [Id., sec. 2294.] 
 *[Id., sec. 2283.] 
 "• [Id., sec. 2295.] 
 
OF SEARCHING FOR WILLS. 241 
 
 all persons interested, at least ten days before the 
 time appointed, or by publication three successive 
 weeks previous. If no person appears to contest the 
 probate ofthe will at the time fixed for that purpose, 
 the court may, in its discretion, grant probate 
 thereof ou the testimony of one of the subscrib- 
 ing witnesses only, if such witness shall testify that 
 the will was executed in conformity with the stat- 
 ute, and that the testator was of sound mind at 
 the time of the execution thereof. If none of the 
 subsci'ibing witnesses reside in this state at the 
 time fixed for proving the will, the court may, in 
 its discretion, admit the testimony of other wit- 
 nesses to prove the sanity of the testator and the 
 execution of the will, and may admit proof of the 
 handwriting ofthe testator, and ofthe subscribing 
 witnesses.* 
 
 > [R. S. Wis. 1878, sees. 3787, 3788.] 
 21 
 
242 LEASES. 
 
 CHAPTEE IX. 
 
 LEASES. 
 
 141. Mode of execution of leases. — 142. Who may make. — 
 143. Agreement for a lease. — 144. Liability of assignee. — 
 145. Coal-oil leases, who may make. — 146. Eights of adjoin- 
 ing owners. — 147. Covenants for working. — 148. Eights of 
 landlord and tenant. 
 
 Section 141. The time for which verbal leases 
 are binding, the nature of leases as incumbrances on 
 estates in fee, and the law of the several states with 
 respect to the recording of leases where deeds are 
 required, have been considered. Allusion has inci- 
 dentally been made to the effect of unqualified cove- 
 nants to pay rent,^ to make repairs,^ and to leave the 
 premises in tenantable condition. Where the lease 
 is for a longer period than that which the law al- 
 lows for verbal leases, it must, oniinarily, be by 
 deed, and requires the same solemnities, as to sign- 
 ing, sealing, attestation by witnesses, release of 
 dower, acknowledgment or proof, as are required in 
 other cases of deeds. Very little, therefore, need 
 be said upon this branch of the subje'ct. 
 
 [Sec. 142. All persons who may hold real estate, 
 
 * Gates V. Green, 4 Paige, SS.'j. 
 
 2 Phillips V. Stevens, 16 Mass. 238; 102 English Common 
 Law Eep. 483. 
 
LEASES. 243 
 
 and who labor tinder no disability, may make leases. 
 Tenants by curtesy, in dower or for life, may make 
 leases, but only to the extent of their interests. 
 Joint tenants, and tenants in common, may make 
 leases jointly or severally. When joint tenants 
 join in a lease, it is but one lease, as they ]iave 
 only one estate. Where tenants in common join 
 in a lease, it is treated as several leases of their re- 
 spective interests.' 
 
 In the latter case, where the entire rent is re- 
 served, they may join in recovering it; where there 
 is a separate reservation to each, they must sever. 
 Tenants for years may make leases of a smaller 
 estate than their own, unless restricted by the in- 
 strument under which they hold. Leases made by 
 or to infants, are not void, but only voidable. 
 They can not avoid a lease by deed until after 
 majority. As they have no power to appoint 
 agents or attorneys, the leases of infants must be 
 by their own personal acts. 
 
 Ordinarily, married women must join with their 
 husbands in making leases. Under the various 
 statutes of many of the states, they may lease their 
 separate property in the same manner as if sole. 
 Leases made by persons won compotes mentis, are 
 merely voidable ; if, under guardianship, such 
 leases are void. The statute generally confers upon 
 the guardian, or committee of these persons, the 
 power to make leases. As leases are part of the 
 personal estate of a decedent, his executors or ad- 
 
 ^ [Co. Litt. 186a. Wood on Landlord and Tenant, see. 90.] 
 
244 LEASES. 
 
 ministrators have power to assign or make leases 
 of the same. 
 
 A cestui que trust should join with the trustee in 
 making a leaso. But a trustee who holds the fee, 
 may make a lease for a reasonable term, the ques- 
 tion as to what is reasonable depending on the 
 peculiar circumstances of each case. 
 
 A mortgagee can not make a lease as against 
 the mortgagor until after foreclosure, nor can a 
 mortgagor grant a lease subsequent to the mort- 
 gage, which will be good as against the mortgagee. 
 In such a case, both should join in the lease.^ 
 
 Where leases are made by an agent, care must 
 be taken to see that he is properly authorized. 
 And, if the instrument is required to be under 
 seal, the authority of the agent to execute it must 
 likewise be under seal. The agent should execute 
 it in the name of his principal, as "A by B, his 
 agent," or " attorney."] 
 
 [Sec. 143. "Whether an instrument is a lease, or 
 an agreement for a lease, is a question which the 
 searcher will often have to decide in the exam- 
 ination of a title. This must depend upon the 
 intention of the parties, to be gathered from the 
 instrument taken as a whole. 'Eo particular form 
 of words would seem to be necessary. A descrip- 
 tion of the premises, the amount of rent to bo 
 paid, and the duration of the term should be set 
 
 1 [Wash. Real Prop., 4th Ed., pp. 455-461; Wood on Land- 
 lord and Tenant, see. 129; Martiudale on Conveyancing, sees. 
 307-319.] 
 
LEASES. 245 
 
 oat. But words of present demise must be used, 
 or such as indicate that the parties intended the 
 instrument to have that effect. Where there is cer- 
 tainty as to the amount of the rent, and the com- 
 mencement and duration of the term, there is a 
 presumption that a lease was intended to be made.' 
 The fact that the parties have entered into posses- 
 sion, and nothing further appears to be done, is 
 also evidence that the instrument was regarded as 
 a lease. On the other hand, when the demise is 
 conditional, or depending upon a contingency ; 
 where it is not to take effect until a future day, or 
 where the terms are not fully agreed upon, or are to 
 be embodied in another instrumentbefore it is to take 
 effect, or where it is expressly stipulated that it 
 shall not have the effect of a lease, it will be con- 
 strued as an agreement for a future lease.^] 
 
 Sec. 144. On the assignment of a leasehold es- 
 tate, the attention of the searcher will be directed 
 to those covenants in the lease which bind the as- 
 signee. The original tenant will always remain 
 liable upon the express covenants contained in the. 
 lease, that being the necessary effect of his own 
 agreement.* But his assignee, having made no 
 personal engagement with the original landlord, is 
 liable only on the covenants which run with the 
 land, and upon them only during the time that he 
 
 ' [Wood on Landlord and Tenant, sec. 184.] 
 
 ^ [Martindale on Conveyancing, sec. 304] 
 
 *2 Piatt on Leases, 400; [1 Wash. R. P., p. 493]. 
 
24G LEASES. 
 
 is assignee.* He may nd himself of any future li- 
 ability by assigning the whole of the unexpired 
 term to any person who will accept it, a married 
 woman, a person going abroad, a prisoner for debt, 
 or a beggar.^ He will still remain liable for rent 
 accrued due, or breaches of covenant committed, 
 during the period of his own occupation ; but for 
 nothing further.' The covenants which thus bind 
 an unnamed assignee during the period. of his oc- 
 cupation, are those relating to the payment of rent 
 and taxes, the mode of cultivating, occupying, or 
 trading on the premises, repairs, and the like. 
 Those which bind the landlord in favor of the un- 
 named assignee of the tenant are, for the quiet enjoy- 
 ment of the premises; for supplying them with 
 water; for the renewal of the lease ; for granting to 
 the lessee timber for repairs and for necessary fire- 
 wood ; for payment of hay and straw left upon the 
 premises at the expiration of the term; and for in- 
 suring the premises, if coupled with a provision for 
 applying the insurance money to re-instating them 
 in case of fire.* To constitute a party an assignee, it 
 is necessary that he should take the identical term 
 of the lessee, and the whole of the lessee's estate in 
 the premises.' If the lessee reserves to himself a 
 
 ^■2 Piatt on Leases, 400; [1 Wash. R. P., p. 494J. 
 
 ^[Co. Litt. 215a; Spencer's Case; 1 Smith's L. C, pt. 1, 7th 
 Am. C.I., pp. 137-22X.] 
 
 ^ Spencei-'s Case ; 2 Piatt on Leases, 400. 
 
 ■* [Spencer's Case, 1 Smith's L. C. 137-228;] 2 Piatt on Leases, 
 402; Keppell v. Bailey, 2 Myl. & Kean, 537; [1 Wash. E. P., 
 pp. 499, SOO.] 
 
 « [1 Wash. R. P., p. 508,] 
 
LEASES. 247 
 
 reversion, however trifling, even of a week or a day, 
 the transaction will amount to an underlease, which 
 will neither give the new tenant any right to en- 
 force the covenants against the landlord, nor sub- 
 ject him to liability to perform the covenants in 
 the original lease. All persons taking the estate 
 of the lessee, either by the act of the parties or of 
 law, are assignees.' That a mortgagee taking pos- 
 session of a leasehold estate by virtue of his mort- 
 gage, will be liable to pay the rent and perform all 
 the covenants which run with the land, has been 
 already stated.^ 
 
 Sec. 145. Leases for mining and for pumping 
 coal oil have attracted so much attention that a few 
 words may be devoted to that subject. Coal oil 
 wells are governed by the same principles of law as 
 mines, and, to some extent, on account of the fluid 
 nature of the product, underground waters. The 
 first inquiry of the searcher will be as to the right 
 of the occupant, to grant a license or lease. This 
 involves an examination of his title; for no tenant 
 for life can open a new mine or oil well, though he 
 is allowed to work one already existing on the 
 premises.^ As the wife is dowable of mines,'' her 
 release of dower is necessary for the protection of 
 the tenant. If no period is fixed in the lease, it , 
 commences, at common law, immediately, and cou- 
 
 1 [Taylor's Land. & Tenant, 7th ed., sec. 427.] 
 
 2 [1 Wash. R. P., p. 523.] 
 
 'Crabb, sec. 100 ; 1 Piatt on Leases, 21 ; [1 Wash. R. P. 144]. 
 'Stougiitoni;. Leigh, 1 Taunton, 402; [1 Wa^h. R. P. 287]. 
 
248 LEASES. 
 
 tinues a lease for the life of the tenant. The 
 modiiications of this rule by statute in the several 
 states have been nientioucd in the chapter on deeds. 
 In West Virginia, the words " doth demise unto the 
 said ]Sr. B., his legal representatives and assigns," 
 describing the property, are a sufficient statement 
 of the formal words of conveyance in a lease.' 
 "VYhere the rights of a married woman are con- 
 cerned, the certificate must show that she was ex- 
 amined privily and apart from her husband, and 
 that the writing was shown and fully explained to 
 her, and that she then acknowledged the writing to 
 be her act, and declared that she had willingly exe- 
 cuted the same, and did not wish to retract it. 
 Unless the lease contains clear words giving to the 
 grantee the exclusive right to work the land for 
 minerals and oil, the grantor and his assigns may 
 exercise the right in common with him.^ 
 
 Sec. 146. In the bona fide exercise of the right 
 of dominion over his own land, the owner may dig 
 in any part of it, subject to the right of the adja- 
 cent owner to have the natural support of the soil 
 as it existed in a state of nature.^ A well may be 
 sunk in any part of the land, though the effect may 
 be to dry adjacent wells by cutting off their sup- 
 plies, provided it is honestly done, in the exercise 
 
 ' [R. S. West. Va. 1879, Ch. 64, sec. 4; Acts, 1882, p. 479.] 
 'Chetham v. Williamson, 4 East, 469; Crabb, sec. 100. 
 'Lasalaw. Holbrook, 4 Paige, 1C9; Thurston v. Flancook, 12 
 
 Mass, 223; Humphries w. Brogden, 12 Queen's Bench, 739; 
 
 Harris v. Rj'ding, .5 Meeson & Welsby, GO. 
 
LEASES. 249 
 
 of a right, and not with a malicious design to in- 
 jure the neighbors.* 
 
 Sec. 147. Great care is necessary in drawing the 
 leases, or in advising upon the acceptance of an as- 
 signment of a lease, with respect to the covenants 
 binding the lessee to work the mine or well. If the 
 lessee has engaged to pay to the landlord a certain 
 proportion of the value of the oil to be raised, " un- 
 less prevented by una,voidable accident from work- 
 ing the well," he is not excused at law by the cir- 
 cumstance that obstacles of an unexpected nature 
 have happened to the well itself, so that the cost 
 of raising the oil would be greater than its value 
 when raised. Unavoidable accident means an acci- 
 dent physically unavoidable.^ So, where the tenant 
 was lessee of a coal mine, at the rent of £-300 a year, 
 and subject to a royalty of ten shillings for every 
 wey of coal raised in each year above six hundred, 
 that being the quantity considered to be paid for 
 by the £-300 a year, and the plaintiff was authorized 
 to terminate the lease on the coal being worked 
 out, and the plaintiff worked the mine for several 
 years, till, when it was nearly exhausted, he was 
 prevented by accidents and defects in it from con- 
 tinuing to work it, except at a ruinous expense ; 
 the court refused to restrain the defendant from 
 suing for the £300 a year, although the plaintiff of- 
 fered to pay him ten shillings per wey for all the 
 
 1 Acton V. Blundell, V2 Meeson & Welsby, 324; [2 Wash. B. 
 P., pp. 353-356]. 
 ''Morris v. Smith, 3 Douglass (English), 279. 
 
250 LEASES. 
 
 remaining coal.* But where the tenant agreed to 
 worlc a coal mine so long as it was " fairly worka- 
 ble," it was held that the mere existence of coal in 
 the mine, of such a description that it would not 
 pay to work it, did not oblige the tenant to con- 
 tinue working the mine at a dead loss.^ 
 
 Sec. 148. Covenants respecting the payment of 
 rent or royalty, and the mode of use of the mine 
 or well, run with the land and bind the assignee. 
 In those states where there is a law of distress, the 
 landlord would have a right to distrain oil found 
 on the premises to pay rent in arrear, in the same 
 manner as any other product of the land. "Where 
 rent is reserved in kind, as is usual, a sale will not 
 divest the landlord's right to follow-his share into 
 the hands of even innocent purchasers without no- 
 tice ; and a court of equity would restrain any dis- 
 position of the oil, if made or threatened, with a 
 view to defeat the rights of the landlord. His 
 right, where rent is paid in kind, is in the nature 
 of an equitable lien. 
 
 ^Phillips V. Jones, 9 Simons, 619. 
 
 ^ Jones V. Shears, 7 Carrington & Payne, 346. 
 
INDEX, 
 
 \The figures refer to the sections.'] 
 
 Abstract, form of, 36, 37 
 
 -Acceptance of trust, proved by conduct of trustee, 77 
 
 Acknowledgment of deeds, law of Alabama, 79 
 
 Colorado, 80 
 
 Georgia, 81 
 
 Illinois, 82 
 
 Indiana, 83 
 
 Iowa, 84 
 
 Kansas, 85 
 
 Kentucky, 85 
 
 Michigan, 87 
 
 Minnesota, 88 
 
 Nebraska, 89 
 
 New York, 90 
 
 Ohio, 91 
 
 Pennsylvania, 92 
 
 Tennessee, 93 
 
 Wisconsin, 94 
 Adverse possession, when equal to a legal title, 29 
 Advertisement, on a sale by auction, 1 
 Agent, for the purchase or sale of land, 2 
 Agent, deeds executed by, 48 
 Agreement, for a lease, 143 
 
 Alabama, laws of, 1, 13, 37, 47, 49, 50, 57, 74, 76, 79, 98, 101, 125 
 Alienation, power of, 59 
 Aliens, power of to hold lands, 98 
 Alterations in a deed, effect of, 75 
 Alimony, decree for, in Pennsylvania, 114(5) 
 Anne, Statute of, re-enacted in Alabama, Illinois, and Penn- 
 sylvania, 50 (251) 
 
252 INDEX. 
 
 Appeal, proceedings on, should be noticed in abstract, 122 
 
 Arbitrators, awards of, in Pennsylvania, 114(5) 
 
 Area, mode of ascertaining, 17, 18, 19, 20, 21 
 
 Assignee of leasehold estate, liability of, 144 
 
 Attestation of witnesses, 76 
 
 Auction, sales at, 3, 10 
 
 Auctioneer, can not buy the property himself, 10 
 
 extent of authority of, 3 
 Bill of exceptions, should be noticed in abstract, 122 (8) 
 Blank, can not be filled without re-executing deed, 75 
 Bonds, for stay of execution, in Kentucky, 108(4) 
 Breach of covenants, 60 
 Cash, purchase for, 25 
 Caveats in Pennsylvania, 114(13) 
 City ordinances, liens created by, in Indiana, 105(9) 
 
 Minnesota, 110(11) 
 
 Ohio, 113(15) 
 Coal oil leases, 145-148 
 
 Colorado, laws of, 1, 23, 47, 50, 80, 98, 102, 126 
 Conditions in deeds, effect of, 28, 59, 60, 63 
 Confirmation, order of, 122(11) 
 
 Contingent remainder, lien on in Pennsylvania, 114(10) 
 Consideration, should 1)6 stated in abstract, 51 
 Contract for sale of land, must be in writing, 1, 4 
 Contractors, lien of, under city ordinances, 26 
 Corporation, deed of, how to be signed, 73 
 
 power of to become grantor or grantee, 48 
 Covenants against incumbrances, 70a 
 
 claim to damages for breach of, 66 
 
 for quiet enjoyment, 69 
 
 for working oil wells and mines, 147 
 
 of good right to convey, 68 
 
 of warranty, 70J 
 
 " running with the land," 60, 61, 62, 63, 64, 65 
 
 usually inserted in deeds, 66 
 Curtesy, law of Alabama, lUl (4) 
 
 Colorado, 102(2) 
 
 Georgia, 103 (3) 
 
INDEX. 253 
 
 Curtesy, law of Illinois, 104 (2) 
 
 Indiana, 105 (3) 
 
 Iowa, 106 (3) 
 
 Kansas, 107 (3) 
 
 Kentucky, 108(3) 
 
 Michigan, 109 (3) 
 
 Minnesota, 110(2) 
 
 Nebraska, 111 (3) 
 
 New York, 112(2) 
 
 Ohio, 1 13 (3) 
 
 Pennsylvania, 114(4) 
 
 Tennessee, 115 (3) 
 
 Wisconsin, 115 (3) 
 Damages, claim to for breach of covenants, 66 
 Dates, should be noticed in abstract, 122, 124 
 Dauphin County, Penn., judgments rendered in, 114 (2) (5) 
 Death of buyer or seller, effect of, 13 
 Declarations of agent, 2 
 Decedents' debts, in Illinois, 104 (5) 
 
 Kentucky, 108 (6) 
 
 New York, 112(8) 
 
 Ohio, 113 (6) 
 
 Pennsylvania, 114(7) 
 Deeds, imperfect or unrecorded, 5 
 Deeds, effect of erroneous details in, 54 
 Deeds, laws of Alabama, Colorado, Georgia, 47 
 
 Illinois, 44 
 
 Indiana, 43 
 
 Kentucky, 42 
 
 Michigan, Minnesota, Nebraska, New York, 47 
 
 Ohio, 41 
 
 Pennsylvania, 40 
 
 Tennessee, Wisconsin, 47 
 Deeds, particulars to be abstracted from, 39 
 
 positive error in, how corrected, 55 
 
 when invalidated by defective description, 52, 53 
 Default, against whom no judgment can be taken by, 122(6) 
 Defective title, effect of discovery of, 8 
 
254 INDEX. 
 
 Defect in deed, to be noticed in abstract, 95 
 
 Delivery, external evidence of date of, 36 
 
 Descent, statutes of, 124 
 
 Distillers, U. S. tax on, 100(2) 
 
 Distribution, statutes of, 124 
 
 Doubtful question of law, title depending on, 5 
 
 Dower, 12 
 
 Dower, law of Alabama, 101 (3) 
 
 Colorado, 102 (2) 
 
 Georgia, 103(2) 
 
 Illinois, 104 (2) 
 
 Indiana, 105(2) 
 
 Iowa, 106(2) 
 
 Kansas, 107 (2) 
 
 Kentucky, 108(2) 
 
 Michigan, 109 (2) 
 
 Minnesota, 110(2) 
 
 Nebraska, 111(2) 
 
 New York, 112(1) 
 
 Ohio, 113(2) 
 
 Pennsylvania, 114(3) 
 
 Tennessee, 115 (2) 
 
 Wisconsin, 116 (2) 
 Election, effect of will creating, 124 
 Election, of widow to take against will, in Ohio, 137 
 Equitable title, 6, 38 
 
 Equitable interference in favor of buyer, 9 
 Erasure in a deed, effect of, 75 
 Error, proceedings on removal of writ of, 122 
 Estates tail, 49, 124 
 
 Estates tail, liens on in Pennsylvania, 114 (10) 
 Estoppel, 27, 72 
 Evidence, excluded by written contract, 4 
 
 external to the writing, 1 
 
 verbal, admissible to prove mistake, 11 
 to prove who executed deed, 48 
 when not admissible, 2 
 Examination of title, incurring expense in, 9 
 
INDEX. 255 
 
 Execution, writ of, should be noticed in abstract, 122 (9) 
 law of, in Alabama, 101 (5) 
 
 Colorado, 102(3) 
 
 Georgia, 103 (4) 
 
 Illinois, 104(3) 
 
 Indiana, 105 (4) 
 
 Iowa, 106(4) 
 
 Kansas, 107 (4) 
 
 Kentucky, 108(4) 
 
 Michigan, 109 (4) 
 
 Minnesota, 110(3) 
 
 Nebraska, 111(4) 
 
 New York, 112(3) 
 
 Ohio, 113(4) 
 
 Pennsylvania, 114(5) 
 
 Tennessee, 115(4) 
 
 Wisconsin, 116 (4) 
 Executors may convey by power of attoftiey in Penn., 48 
 Facts external to records, 23 
 Fee, words necessary to pass, 49 
 Forcible detainer, statute of in Ohio, 113 (13) 
 Foreign attachments in Pennsylvania, 114(6) 
 Forfeiture, estate liable to, 27, 71 . 
 Fraud, what things amount to, 9, 10 
 General land-office at Washington, 37 
 Georgia, laws of, 1, 23, 47, 49, 50, 74, 81, 98, 103, 127 
 Ground rents, law o( Pennsylvania concerning, 114(9) (10) 
 Guardian, answer of in court, 122 (6) 
 Habendum clause, variation from, 39 (7) 
 
 may supply defect, 48 
 Husband, may repudiate purchase by wife, 14 
 Illinois, laws of, 1, 13, 23, 33, 35, 44, 49, 50, 67, 74, 82, 98, 104, 
 
 117, 128 
 Incumbrances, covenant against, 70a 
 
 should be removed before acceptance, 5 
 Indiana, law of, 1, 13, 23, 43, 50, 57, 67, 704, 74, 83, 98, 105, 117, 
 
 129 
 Indians, title derived from, 30 
 Inevitable accident, 6 
 
256 INDEX. 
 
 Inheritance, words of, 49 
 
 Initials, name of grantor expressed by, 48, 73 
 Insertion, undesigned, when relieved against, Jl 
 Insurance companies, liens of, in Ohio, 113 (18) 
 
 Indiana, 105 (10) 
 Intermediate life-estates, 29 
 Internal-revenue act, 39 (14)^ 
 Interpretation of wills, 124 
 Interlineations in deeds, effect of, 75 
 Interval between execution and recording of deed, 25 
 Iowa, laws of, J, 13, 23, 35, 45, 48, 49, 50, 67, 70a,^i, 74, 84, 9 
 
 lor., 130 
 
 Joint tenants, 50 
 
 Judgments and executions, law of Ala. concerning, 101 (5) 
 
 Colorado, 102(3) 
 
 Georgia, 103 (4) 
 
 Illinois, 104 (3) 
 
 Indiana, 105 (4) - 
 
 Iowa, 106(4) 
 
 Kansas, 107(4) 
 
 Kentuck}^ 108 (4) 
 
 Michigan, 109 (4) 
 
 Minnesota, 110 (3) 
 
 Nebraska, 111 (4) 
 
 New York, 112(3) 
 
 Ohio, 113(4) 
 
 Pennsylvania, 114(5) 
 
 Tennessee, 115 (4) 
 
 Wisconsin, 116 (4) 
 Judgment, acquisition of title under, 118 
 
 reversal of, 117 
 
 what constitutes due notice of, 120 
 Judicial proceedings, in Alabama, 101 (6) 
 
 Georgia, 103 (5) 
 
 Illinois, 104(4) 
 
 Indiana, 105 (5) 
 
 Iowa, 106 (5) 
 
 Kansas, 107 (5) 
 
INDEX. 257 
 
 Judicial proceedings, ia Kentucky, 108 (5) 
 Michigan, 109 (5) 
 Minnesota, 110 (4) 
 Xebraska, 111 (5)- 
 Ohio, 113(5) 
 Pennsylvania, 114(6) 
 Wisconsin, 116 (5) 
 Judicial record, how best abstracted, 122 
 
 salps, title acquired at, 117 
 Jurisdiction of the person, 120 
 
 subject, 119 
 Kansas, laws of, 1, 13, 23, 35, 37, 46, 49, 50, 51, 57, 67, 74, 85, 
 
 98, 107, 117, 131 
 Kentucky, laws of, 1, 23, 26, 29, 35, 38, 42, 49, 60, 51, 57, 67, 
 
 704, 74, 76, 86, 98, 108, 132 
 Laborers, liens of —See Mechanics' Liens. 
 Landlord, lien of in Alabama, 101 (7) 
 Georgia, 103 (7) 
 Illinois, 104 (7) 
 Iowa, 106(7) 
 Kansas, 107 (7) 
 Kentucky, 108 (8) 
 Ohio, 113(10) 
 Pennsylvania, 114(12) 
 Tennessee, 115 (6) 
 Landlord of mines and oil wells, rights of, 148 
 Leases, law of Alabama, 101 (10) 
 Colorado, 102 (5) 
 Georgia, 103 (9) 
 Illinois, 104(9) 
 Indiana, 105(7) 
 Iowa, 106 (9) 
 Kansas, 107(9) 
 Kentucky, 108(10) 
 Michigan, 109 (10) 
 Minnesota, 110(8) 
 Nebr.iska, 111(9) 
 New York, 112(7) 
 22 
 
258 INDEX. 
 
 Leases, law of Ohio, 113 (13) 
 Pennsylvania, 114(15) 
 Tennessee, 115 (8) 
 Leases, agreement for, 143 
 mode of executing, 141 
 who may make, 142 
 liability of assignee of, 144 
 of oil lands, 145, 145, 147, 148 
 recording of, 41, 46 
 Letter and answer, contract of sale by, 1 
 Liens on lands, how created, 99 
 in favor of U. S., 100 
 law of Alabama, 101 (5) 
 Colorado, 102(3) 
 Georgia, 103(4) 
 Illinois, 104(3) 
 Indiana, 105 (4) 
 Iowa, 100 (4) 
 Kansas, 107(4) 
 Kentucky, 108(4) 
 Michigan, 109(4) 
 Minnesota, 110(3) 
 Nebraska, 111 (4) 
 New York, 112(3) 
 Ohio, 113(4) 
 Pennsylvania, 114(5) 
 Tennessee, 115 (4) 
 Wisconsin, 116 (4) 
 Limitations in deeds, effect of, 59 
 
 statutes of, 29, 124 
 Lis pendens, law of in Iowa, 106 (6) 
 Kentucky, 108(7) 
 Michigan, 109 (6) 
 Minnesota, 110 (6) 
 Nebraska, 111 (6) 
 New York, 112(4) 
 Ohio, 113(9) 
 Pennsylvania, 114(11) 
 Wisconsin, 115 (6) 
 
INDEX. 259 
 
 Literal performance, 4 
 
 Lunatics, exceptions in favor of, 29 
 
 Marketable title, 5 
 
 Married women, 12, 14, 29, 83, 86, 87, 90, 91, 94, 125-139 
 
 Material men, liens of, 26 
 
 Mecliaiiics, liens of in Alabama, 101 (II) 
 
 Colorado, 102(6) 
 
 Georgia, 103 (10) 
 
 Illinois, 104 (10) 
 
 Indiana, 105(8) 
 
 Iowa, 106(10) 
 
 Kansas, 107 (10) 
 
 Kentucky, 108(11) 
 
 Michigan, 109 (10) 
 
 Minnesota, 110(10) 
 
 Nebraska, 111(10) 
 
 New York, 112(9) 
 
 Ohio, 113(14) 
 
 Pennsylvania, 114 (16) 
 
 Tennessee, 115(10) 
 
 Wisconsin, 116(10) 
 Michigan, laws of, 1, 13, 23, 37, 47, 50, 51, 57, 74, 76, 87, 109, 133 
 .Military reserves, 30 
 
 Miners, liens of ill Colorado and Pennsylvania, 102 (6), 114(16) 
 Mines and oil wells, wife dowable of, 145 
 Minors, 13, 122 
 
 Minnesota, laws of, 1, 13, 23, 37, 49, 704, 74, 88, 98, 110, 134 
 Misrepresentation, amounting to a fraud, 10 
 Mistake in description of premises, 4, 9, 15, 22 
 Mortgages, law of Alabama in regard to, 101 (9) 
 
 Colorado, 102 (4) 
 
 Georgia, 103 (8) 
 
 Illinois, 104 (8) 
 
 Indiana, 105 (6) 
 
 Iowa, 106 (8) 
 
 Kansas, 107 (8) 
 
 Kentucky, 108(9) 
 
 Michigan, 109(9) 
 
 Minnesota, 110(7) 
 
260 INDEX. 
 
 Mortgages, law of Nebraska in regard to, 111 (8) 
 
 New York, 112(6) 
 
 Ohio, 113 (12) 
 
 Pennsylvania, 114 (14) 
 
 Tennessee, 1 15 (7) 
 
 Wisconsin, 116 (7) 
 Natural decay, 6 
 
 Nebraska, laws of, 1, 13, 23, 37, 49, 74, 89, 98, 111, 135 
 New York, laws of, 1, 23, 49, 51, 57, 706, 76, 90, 98, 112, 136 
 Non-residents, 29 
 
 Notice of judicial proceedings, 120 
 Nuisance, 7 
 
 Objections to title, waiver of, 7 
 Occupying claimant, lien of in Iowa, 106 (11) 
 
 Kansas, 107(11) 
 
 Kentucky, 108(12) 
 
 Michigan, 109(11) 
 
 Nebraska, 111(11) 
 
 Ohio, 113(15) 
 Offensive trades, restraints against, 62 
 (.ifficial bonds, liens created by, in Alabama, 101 (2) 
 
 Illinois, 101 (6) 
 Ohio, laws of, 1, 2, 7, 12, 13, 23, 27, 29, 33, 35, 37, 38, 41, 48, 50, 
 
 67, 74, 75, 76, 91, 98, 113, 117, 137 
 Oil lands, leases of, 145-148 
 Omission of Christian name, 73 
 
 undesigned, relieved against, 11 
 Order of sale, to be noticed in abstract, 122 
 Order of confirmation, essential to complete sale, 122 
 Paper, contract may be written on, 1 
 Parchment, con'.ract may be written on, 1 
 Parol evidence, 29 
 Parol lease, when valid in Alabama, 101 (10) 
 
 Colorado, 102 (5) 
 
 Illinois, 104 (9) 
 
 Indiana, 105 (7) 
 
 Iowa, 106 (9) 
 
 Michigan, 109 (10) 
 
INDEX. 261 
 
 Parol lease, when valid in Minnesota, 110 (8) 
 Nebraska, 111 (9) 
 New York, 112(7) 
 Ohio, 113(13) 
 Tennessee, 115 (8) 
 Part performance, 9 
 Patent of land from U. S., 37 
 Payment, to be made within reasonable time, 1 
 Pencil, contract naay be written with, 1 
 Pennsylvania, laws of, 1, 13, 23, 35, 40, 48, 50, 70b, 74, 76, 92, 
 
 114, 117, 138 
 Perpetuities, 124 
 Perpetuity, words of, 137, 138 
 Personal liability of agent, 2 
 Philadelphia, taxes in, 114 (1) 
 
 lands acquired in, after judgment, 114 (5) 
 Possession, notice of occupant's rights, 24 
 Posthumous children, 126, 128-139 
 Power of attorney, 2, 41, 44, 48, 73, 86, 97 
 Power of sale, 105(6), 124 
 Preliminary sketch made by searcher, 35 
 Presumption of law, 7 
 
 Pretended titles, statute against granting, 23, 67 
 Private instructions from principal to agent, 2 
 Probate, date of, should be stated in abstract, 124 
 Proof of law of another state, 39 
 Public lands of U. S., mode of surveying, 31 
 Publication in newspapers, notice by, 120 
 Puffers, employment of at auction, 10 
 Purchase money, 51 
 
 buyer must see to application of, 57 
 liens in Alabama, 101 (8) 
 Illinois, 104 (11) 
 Ohio, 113(8) 
 Pennsylvania, 114(10) 
 Tennessee, 115 (5) 
 Wisconsin, 116 (9) 
 payment of, not part performance, 9 
 Purchaser, when not bound to accept a title, 5 
 
262 INDEX. 
 
 Quantity, gross mistake in, may be corrected, 22 
 
 Quiet enjoyment, covenant for, 69 
 
 Banges, how laid oif and numbered, 31 
 
 liecitals in deeds, 72 
 
 Records, points to be noticed in, 118, 122, 124 
 
 Rent, forfeiture for non-payment of, 71 
 
 false statement concerning, fraudulent, 10 
 Rents, reserved, effect of, 58 
 Repudiation of contract, when a fraud, 9 
 
 when allowable, 10 
 Reservations in deeds, 58 
 
 Resulting trust, laws of Indiana, Kansas, Kentucky, Michi- 
 gan, and New York concerning, 51 
 Reversal of judgment, 117 
 Reversion of an estate, 28, 144 
 Road records, in Ohio, 1 13 (17) 
 Sale, order of, noticed in abstract, 122 
 School-lands, leases of, in Ohio, 41 
 Seals, private, in what states not necessary, 74 
 Sections of townships, size of, 31 
 Seizin, covenant of, 67 
 Shelly's case, rule in, in Kansas, 131 
 
 Kentucky, 132 
 
 Minnesota, 134 
 
 Ohio, 137 
 
 Tenneesee, 139 
 Societies, unincorporated, capacity to hold land, 48 
 Specific execution of an agreement, 9 
 
 performance of covenants, 60 
 contract, 34 
 Stamp, Int. Rev. Act., concerning, 39(]4)n 
 State in which the land lies, 32, 33 
 Statutes of descent and distribution, 124 
 
 frauds, 1,2, 3, 113(13) 
 
 limitations, 29, 124 
 
 uses, 48 
 
 wills, 124 
 Surveying, importance of knowledge of, 15 
 Surveyor's chain, description of, 16 
 
INDEX. 263 
 
 Surveys, incurring expenses for, 9 
 Taxes, law of Alabama, 101 (1) 
 
 Colorado, 102(1) 
 
 Georgia, 1(D3(1) 
 
 Illinois, 104(1) 
 
 Indiana, 105 (1) 
 
 Iowa, 100(1) 
 
 Kansas, 107(1) 
 
 Kentucky, 108(1) 
 
 Michigan, 109(1) 
 
 Minnesota, 110(1) 
 
 Nebraska, 111(1) 
 
 Ohio, 113(1) 
 
 Pennsylvania, 114(1) 
 
 Tennessee, 115 (1) 
 
 Wisconsin, 116 (1) 
 Tenant of naines and oil wells, rights of, 148 
 Tennessee, laws of, 1, 13, 47, 49, 50, 74, 93, 98, 115, 139 
 Term of the court, stated in abstract, 122 
 Testator, name of, stated in abstract, 1 24 
 Testimonium clause, 73 
 Title, defective or incumbered, 5 
 
 depends on facts external to record, 23 
 
 to real property, how transmitted, 39 
 Townships, size and subdivisions of, 31 
 Trapezoid, how to determine area of, 19 
 Triangle, how to determine area of, 18 
 Trust, acceptance of by trustee, 77 
 
 declaration of in deed, 56 
 Trustee, authority of to sell, 56 
 Trustee's expenses, a lien on trust property, 110(9), 113(7), 
 
 114(8) 
 Trustees, may convey by power of attorney in Pennsylvania, 48 
 Undisclosed principal, 2 
 Unrecorded charges, 26 
 U. S. internal revenue act, 39 (14)/i 
 land system, 16 
 liens in favor of, 100 
 
264 INDEX. 
 
 V. S. statutes, 30, 37, 100 
 
 the source of title to all lands, 30 
 Validity of marriage, title depending on, 5 
 
 of will, how determined, 123 
 Vellum, contract may be written on, 1 
 Verb;il evidence, admissible to prove mistake, 11 
 when admissible, 48 
 wlien not admissible, 2 
 Warrants of distress under U. S. statutes, 100(1) 
 Warranty, covenant of, 705 
 West Virginia, law of concerning leases, 145 
 Wife, interest of in husband's lands, 2 
 
 name of, effect of omitting in deed, 48 
 refusal of to join in conveyance, 12 
 Wills, foreign, law concerning in Ohio, 113(11), 137 
 general principles relating to, 123 
 law of in Alabama, 125 
 Colorado, 125 
 Georgia, 127 
 Illinois, 128 
 Indiana, 129 
 Iowa, 130 
 Kansas, 131 
 Kentucky, 132 
 Michigan, 133 
 Minnesota, 134 
 Nebraska, 135 
 New York, 136 
 Ohio, 137 
 Pennsylvania, 138 
 Tennessee, 139 
 Wisconsin, 140 
 noticed in abstract, 124 
 Wisconsin, laws of, 1, 13, 23, 37, 47, 50, 67, 74, 94, 98, 116, 140 
 
 140 
 Writ of error, proceedings on, 122 
 
 execution, noticed in abstract, 122 
 Words of grant, 50 
 Wrongful violence, 6 
 
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