QJornBll Slam ^rl|nnl library Ill UNIVIRSIfT JUN 2s mr Cornell University Library KF 678.M38 A treatise on the examination of tities 3 1924 018 781 025 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018781025 A TREATISE -ON THE- EXAMINATION OF TITLES -TO- REAL ESTATE AND THE PEEPARATION - ABSTEACTS. WITH AN APPENDIX OF FORMS. -BT- ■\7^. B. :N^.A-DRTIlSriD-A.LB, (Author of a Tre/itUi' on the Law of Conveyancing .) ST. LOUIS, MO. WILLIAM H. STEVENSON,' LAW PUBLISHER AND PUBLISHER OF THE CENTRAL LAW JOURNAL. 1885. COPTRIGHT 1885. BY W. B. Maetindale. St. Louis, Mo-: Printed by the Central Law Journal. The preparation of this work was begun some years ago, but before publication, the writer discovered that he had fallen into the common error of indulging in frequent and extended digressions, discussing prin- ciples of law, to the obscurement of the primary object of the work. The subject is, of course, inseparably connected with the Law of Real Property, but involving as it does this entire branch of jurisprudence, a discussion of its principles, within the limits of a single volume, was found to be impracticable. The original topic was, therefore, eliminated and the first publication confined to a treatise on the Law of Conveyancing. The success of that work ■ seemed to warrant the publication of the present volume— the object of which is,^to suggest the points to which atten- tion is to be drawn in the examination of titles and to state the method of preparing abstracts. In its preparation, the writer has made liberal extracts from the early English writers on the subject, where applicable to the present state of the law in this country, but it must be admitted that very little of value in the way of precedent is to be found, on which to formulate a work of this character. For the want of a better term the word abstractor has been made use of to designate the person who prepares an abstract, which has not been sanctioned by any recognized authority. The employment of some such word seemed to be essential to clearness of expression, as that of examiner is a more general term and is applied with equal propriety to different classes of persons who engage in the investigation of titles. W. B. MAETLNDALE. Kenosha, Wis., September 1, 1835. TABLE OF CONTENTS. CHAPTER I. INTEODUCTOET. SECTION. Historical ' . . . . 1.. An Aljstract should contain what 2. Implied contract on part of vendor 3. .Title should be investigated before sale is contracted. ... 4. By whom the abstract is to be prepared 5. At whose expense the abstract is made, and conveyances drawn. 6. Ownership of the abstract. 7. Preliminary. 8. CHAPTER II. OEIGINAL SOUECES OF TITLE. The United States Government the Original Source of Title. . 10. As to Indian Titles. . . . . . . . 11. As to Titles derived from Foreign Governments. . . . 12. CHAPTER III. HOW FAK BACK THE ABSTEACT SHOULD EXTEND. Need not date from patent, when. ." . . . 15. Title by adverse possession. . . . . . .16. Discretion to be exercised by Abstractor. ... 17. CHAPTER IV. PRELIMINAET ENQUIRIES AND SKETCH. Importance of facts external to the records. . . .20. Inquiry as to description of property. .... 21. TABLE or CONTEXTS. oo Inquiry as to title and parties through whom it has passed. As to the possession of the premises. . . '^^ The search for transfer and preliminary sketch. . . .24 CHAPTER V. CAPTION OF THE ABSTRACT. •29. Caption should contain what. When property is made up of different parcels. Plat of the premises. .... CHAPTER VI. GEANTS BY STATE OR GEXERAL GOVEEXBIENT. Modes of passing title to public lands. . . . 33. What law governs. ..... .34. To whose benefit a patent invu-es. . . . .35. Patents founded on assigned land warrants. ... 3G. The effect of a Patent upon rights prior to it. . . 37. Validity of Patents. . ' . . . . . 38. Registration laws as affecting Patents. . . . 39. The Abstract of a Patent. . . . . 40. CHAPTER Vn. ABSTRACT OF A PURCHASE DEED. Introduction of the instrument. ..... 43. !N'ames and description of the parties. .... 44. Of the Kecitals. ..... 4.5. Of the consideration. ...... 46. The receipt of payment. .... .47. The granting clause. . . . . . . 48. The description of the property. ... . 40. Of the Habendum. ....... 50. Of the Reddendum. . . . . . . . ' 51. Conditions, limitations and other special agreements. 52. Covenants for title. ..... .53. The Testimonium clause. ...... 54. Signing, sealing and attesting by witnesses. . 55. The acknowledgment. .... .56. Eegistration. ••■•... 57. Memoranda. ... . . 58. TABLE OF CONTENTS. vn. CHAPTER VIII. OF CONVEYANCES DEPENDENT UPON POWERS. Of the abstract of a power of attorney. Of tbe execution of a conveyance by attorney. Powers of sale in mortgages and deeds of trust. Of the execution of a power of sale. . . . . Powers of appointment. ..... CHAPTEE IX. AS TO THE ABSTRACT OF A DEVISE. 60. 61. C2. 63. 64. Unessential parts of a will. What may he deemed essential parts. Method of abstracting the important clauses. The several clauses more specifically considered. As to the signature and attestation. Of the probate of a will. Registration, and herein of foreign wills. 67. 6s. 69. 70. 71. 72. 73. CHAPTER X. JUDICIAL SALES AND DECREES. Judicial sales and decrees defined. Of jurisdiction in general. Jurisdiction of the subject matter. Jurisdiction of the person. The bill, complaint, or petition. Other jurisdictional inquiries. Of Probate proceedings, and sales therein. The judgment order or decree. The Sale. .... The report of sale. The sale must be confirmed. . The deed upon a judicial sale. 76. 79. 80. 81. 82. 83. 84. So. 86. 87. CHAPTER XL EXECUTION SALES. Definition. Preliminary suggestions. Attachment. The judgment. 91. 92. 93. 94. VIU. TABLE OF CONTENTS. The execution. . Claims of exemptions. Inquisition or appraisement. Notice of sale. The sale. As to redemption. . Confirmation. The deed. . Other proceedings. CHAPTEE XII. THE EXAMINATION AND ABSTEACT OF A TAX SALE. 95. 96. 97. 98. 99. 100. 101. 102. 103. Caus.es of infirmity in tax titles. The assessment. .... The levy of the tax. . . . . Special or local assessments. The collector's warrant, or tax hook. The return of the delinquent list. Judgment and proceedings incident thereto* Notice of sale. .... The sale. . . . . . Preliminaries to the deed. The tax deed. . . . . . Transfers other^than by deed. Matters subsequent to the deed. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. CHAPTEK XIII. DEDICATION. Definition. An express dedication. An implied dedication. Acceptance essential. Method of abstracting. 123. 124. 125. 126. 127. CHAPTEE XIV. TITLE BY DESCENT. Of the subject generally. The search for record evidence. Evidence not of record. Dower, homestead and curtesy. Joint tenancy. Disabilities and escheats. 130. 131. 132. 133. 134. 135. TABLE OF CONTENTS. IX. CHAPTEE XV. METHOD OF ABSTEACTING TITLES TO LEASEHOLD ESTATES. The arrangement under proper captions. Inquiries incident to the nature of the estate. Method of abstracting the formal parts of a lease. As to the execution and acknowledgment. Of assignments and under leases 138. 139. 140. 141. 142. CHAPTEE XVI. THE SEARCH FOR LIENS AND ENCtTMBRANCES . Of the subject generally. Liens in favor of the United States. Debts due the State on public accounts. Official bonds Taxes due the State or Municipality. Special assessments under city ordinances. Judgments and executions. Forfeited recognizances. . . . . Attachments and other judicial proceedings. Lis Pendens. Mechanic's liens. Vendor's liens. Decedent's debts. Legacies and annuities. Trustees' expenses. Mortgages and deeds of trust. Leases Dower and curtesy. Easements and servitudes. Miscellaneous liens and incumbrances. The Abstractor's certificate. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155 156 157. 158. 159. 160. 161. 162. 163. 164. 165. CHAPTEE XVH. PERUSAL OF THE ABSTRACT. Preliminary observations. 168. Duty of counsel in respect to the abstract. .... 169. The Kind and Degree of evidence required by conveyancers. . 170. Direct and primary evidence of title. 171. Secondary evidence, i 172. Presumptions. 173. Voluntary affidavits. 174. X. TABLE OF CONTENTS. Circumstances suggesting suspicion l'-^- Analysis of the abstract. . 1''6- Summing up. '177. The certificate of opinion 1"S. CHAPTER XVIII. LIABILITY OF EXA3IIXERS OF TITLES. Xature of the liability ISl- What will constitute actionable negligence 1S2. Liabilitjr of officers making ofiicial searches. .... 183. Liability of an attorney for defective advice 1S4. To whom the liability extends. 1S5. Actual damage must be shown to support an action. . . 186. TABLE OF OASES. Alabama Conference v. Frice'3 Ex'r's, 80, 81. Allen V. Jaquisli, 141. B. Bagnell V. Broiierlck, 35. Baldwin v. Marshall, 24. Barton v. Murrain, 40, 171. Bean v. Thompson, 115. Beard v. Federy, 12. Beekman v. Frost. 24. Bell V. Duncan, 37. Bernard v. Campan, 24. Blakey v. Ahert, 101. Boggs V. Mersed Mining Co., 38. Braley v. Seaman, 108. Branch v. Lowery, 151. Brocken r. Miller, 185. Brown v. Hogle, 115. Brown v. Pierce, 151. Brown v. Veazie, 108. Brush T. Ware, 37. Brydon v. Campbell, 24. Burnet v. Lynch, 172. Bums V. Berry, 175. Butterfleld v. Smith, 175. c. Cahoon v. Coe, 108. Campbell v. Johnson, 67. Campbell v. Wortman, 33. Carpenter v. Brown, 6. Case v. Dean, 113, 115. Chamberlain v. Bell, 24. Chapman v. Chapman, 184. Chase v. Heaney, 2, 168, 182. Chase v. Ross, 82. Clark V. Marshall, 182. Clark V. Graham, 61. Clarkson v. Buchanan Co., 33. Colby V. Kenniston, 141. Commissioners t. Clarke. 115. Commonwealth v. Harmer, 184, 185. Cornell v. Andrews, 177. Cooper V. Roberts, 33. Connelly v. Pierce, 6. Cranston v. Crane, 64. Curtis V. Kesler, 126. Cushing T. Longfellow, 115. D. Darcey v. Durant, 63. Den V. Johnson, 141. Dent V. Bmmeger, 12. Dicks V. Hatch, 78. Dodd V. Williams, 182. Dolde V. Vodlcka, 50. Donnel v. Bellas, 115. Donaldson v. Haldone, 185. Dudley v. Little, 115. Dundee, etc. Co. v. Hughes, 182, 185. E. Espy V. Anderson, 3. Exchange BankT. Eeld, 141. F. Faisans y. Moore, 3. Field v. Seabury, 33, 39. Pilton V. Hamilton City, 141. Frost T. Beekman, 24. Fuller V. Hubbard, 6. G. Gibson V. Roll, SO, 81. Gilchrist v. Gough, 24. Goudy V. HaU, 80, 81. H. Haokett v. Huson, 6. Harvey t. Cook, 108. Hardy v. Harbin, 12. TABLE OF CASES CITED. H. Lea V. Polk, 33. Les Bois v. Bramell, 12. Hastings v. Jolmson, 101. Hennen v. Wood, 35. Hlokox V. Greenwood, 156 Longtellow y. Qulnby, 115. Lusk y. Carlen, 184. Lyon V. Kaln, 131. Hilgers v. Qaincy. 115. M. Hilmert v. Christian, 53. Hogan V. Page, 12, 35. Martin v. Cole, 115. Hood V. rahnstock, 185. Marshall v. Eoberts, 175. Hornsby v. United States 12. SB535S Uarston v. Bradshaw, 58. Housman v. Gerard, etc." Association, Mason y. Messinger, 30, 81. 185. McArthur v. Browder, 83. Hudson V. Jewett, 6. McCaraban v. Commonwealth, 131. Hughes V. Watt, 99. McCay v. Dillon, 12. Huntington v. Central PaolflciE. E. Co., ' MoConnell v. Reld, 175. 109. McCready v. Sexton, 117. Hutchinson v.Harttmann 175. McGarrahan v. Mining Co., 39. Mclnnerny v. Eeed, 108. I. Meader v. Norton, 12. Mella V. Simmons, 82, 131. Ins. Co. V. Hallock, 96. Merrick y. Wallace, 24. Ireson v. Pearman, 184. Miller y. Herbert, 141. Irvine v. Marshal), 35. Mines y. Mines, 24. Iverslle v. Spauldlng, 115. Mitchell V. United States, 11, 13. Moody V. Hutchinson, 37. J. Moore v. Eobbius, 40. Moore y. Ellis, 78. Jackson v. Wlnalow, 141. Morange v. Mis, 183. Jackson v. Babcock, 80. Morris y. Daniels, 175. Jackson v. La-nton, 40. Morse y. Gould, 80, 81. Jarvls T. Silllman, 115. Jenkins v. Jones, 63. jST. Jennings v. Wood. 24. Johnson v. Mcintosh, 11. Nash y. Browne, 4. Johnson y. Phoenix Mut. Life Ins. Co., New Orleans v. De Armas, 12. 141. N. T. Life Ins. Co. v. White, 24. Johnson y. Johnson, 80. Jones T. Wood, 67. o. K. Olmstead y. Niles, 141. Opln. Sec'y Int., 38. Keene y. Houghton, 115. Opln. Sec'y, 37, 38. Kelsey y. Tourtelotte, 141 Osborne v. Haryey, 4. Kimball y. Connolly, 183, LS6. Owen y. ElUs, 67. Klssam v. Dirkes, 64. Kittle y. St. John, 141. P. li. Page y. Tmtch, 182, 185. Parretty. SUoubhut, 24. Laffierty y. Conn, 99. Patterson y. Carneal, 101. Lake V. Campbell, 141. Patterson y. Jenks, 33. Lancashire y. Lancashire ,64. Payson y. HaU, 115. Landers y. Brant, 12. People y. Sayings Union, loa Langlow y. Cox, 7. PettingUl y. Deyin, 175. Lally y. Holland, 2i. Price y. Sweetzer, 115. Lawrence y. Belger, 151. Polk y. Cosgroye, 24. Lawrence y. Farmer's Loan & Trust Porter y. Cole, 141. Co., 63. Pratt y. Brown, 35. TABLE OF CASES CITED. Xlll. Eailroad Co. v. Smitli, 33. Eallroad Co. v. riemont Co., 33. Banlnn v. Slieafer, 182. Eeeder v. Barr, 37. Biggs V. Boylan, 24. Eobluson V. Minor, 12. Eoberts v. Wyatt, 7. Eoberts v. Sterling, 186. Eobertson v. Norris, 64. Eoss V. Borland, 38. Kuby V. Huntsman, 115. Buth V. Oberbrunner, 131. S. Savpy V. Papin, 38. Sanger v. Oroigne, 24. Savings Bank v. Ward, 185. Scoles V. Wilsey, 24. Sellers v. Oorwin, 151. Shepherd v. Burkhalter, 24. Shimmin v Inman, 109. Shreck v. Pierce, 3. Shrew v. Jones, 161. Sibley v. Smith, 108. Sievers v. Commonwealth, 185. Simpson v. Niles. 151. Sitzman v. Paoquette, 83. Skinner v. Wood, 68. Smiley v. Sampson, 80, 81. SmithT. Todd, 117. Smith V. Davis, 109. Smith V. United States, 12. Sparkinan v. Porter, 11. Speer v. Haddock, 64. State of Connecticut v. Bradish, 141. State T. Leach, 184. Stephenson v. Stephenson, 35. Strother v. Lucas, 12, 33. Swift V. Agnes, 92. T. Taylor v. Harrison, 175. Terrell v. Andrew County, 24. Thayer v. Sterns. 113. The People v. Arnold, 15. The People v. Livingston, 39. The People v. Van Beusslear, 15. Thomas v. Wyatt, 37. TieiTy v. Union Lumbering Co., 108. Towels V. Fisher, 67. Town of Lemington v. Stevens, 141. Tracy v. Sogers, 156. Traynor v. Palmer, 53. Tuttle V. Jackson, 141. Union Trust Co. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. United States v. TJ. V. Weber, 151. Billings, 12. Cambuston, 12. Clarke's Heirs, 12. Clark, 12. Fernandez, 11. King, 12. Perchman, 12. Eillieux's Heirs, II. Sanchez, 12. Wiggins, 12. Viucennes University v. Indiana, w. Waine v. Kempster, 184. Warde v. Newburn, 141. Weile V. United States, 61. Wells V. Wells, 63. Wendell v. Conklin, 33. Whiting V. Porter, 80, 81. Wilcox V. Jackson, 33. Wilhelm v. Mertz, 141. Wilkerson v. Allen, 64. WUken's heirs v. Huse, 115. Willey v. Scoville's lessees, 109. Williams v. Wiley, 125. Wilson V. Tucker, 186. Z. Zeigler v. Commonwealth, 184. ABSTRACTS OF TITLE. CHAPTER I. INTKODUCTOKY. 1. Historical. 2. An Abstract should Contain what. 3. Implied Contract on part of Vendor. 4. Title should be Investigated before Sale is Contracted. 5. By Whom the Abstract is to be Prepared. 6. At whose Expense the Abstract is made, and Conveyances drawn. 7. Ownership of the Abstract. 8. Preliminary. § 1. Historical. — The history of the practice of prepar- ing Abstracts of Title, is almost contemporaneous with that of the requirement of a formal instrument in writing for the conveyance of real estate. When the title to lands came to depend chiefly upon docu^uentary evidence, or, at least, when the forms of the assurances had 2:rown to such length as to be cumbersome to examine, a brief summary of the important parts of such documents became necessary to enable purchasers, or their counsel, the more readily to p'lss upon the sufficiency of the title. Before the recording acts in England, all deeds passed with the possession of the property, and it was the duty of the conveyancer employed, to examine the conveyances and prepare an abstract of the title. This constituted an im- portant part of the learning of conveyancing — " a highly (1) § 1 ABSTRACTS OF TITLE. artificial system of rules aud practice which maiutained its own separate body of practitioners."^ In this country the tendency has been to a loose and incoherent practice in the examination of titles and the drawing of conveyances, and few practitioners take the trouble to inform themselves in the nice distinctions and technical discriminations, with which the law of conveyancing abounds. Says Judge Cooley, in the Introductory to his excellent edition of Blackstone:^ " Real estate has been cheap ; we have been near the sources of title ; conveyances of any particular parcel have not generally been numerous, nor the title complicated ; the modes of transfer have been tolerably uniform and well understood ; we have a general system of registry designed to give purchasers information concerning the conveyances which have been made ; and as every man of plain common sense is able to understand all these, one naturally comes to think that the nearest justice of the peace is competent to transact the business connected with his purchases and sales, and that his own good sense is sufficient to protect him against flaws in titles, or against being entrapped through the means of inadequate conveyances of the land he buys. Unfortunately he sometimes discovers, when too late, that unaided good sense is not always an infallible guide in matters of law, and that one who relies on it, implicitly, is in the proper condition of mind to be made the victim of mis- placed confidence. Many a man has lost his all by assuming the sufficiency of his own knowledge and judgment in real estate matters, and by resting satisfied with his own exami- nation or that of his county register of deeds, Avhere he ought to have called in the best legal advice that was attain- able. Sharp schemers do not overlook this fact, and many of them thrive by it ; but we should be obliged to confess, if interrogated on that point, that many legal practitioners also do not properly appreciate the nature of their task when called upon to advise regarding titles, and that the assistance they assume to render is admirably calculated to lead astray." 1 1 Steph. Con. 466; Burrirs Law Die, Conveyancing. 2 Page xvl. INTRODUCTORY. § 2 § 2. An Abstract should Contain what. — The object of every abstract of title is to enable the purchaser, mortgagee, or party in interest, to judge of the evidence deducing, and of the incumbrances affecting the title. It should, therefore, •exhibit whatever tends to aid the parties in forming an opin- ion of the precise state of the title, at law and in equity, together with all chances of eviction and adverse claims. If the title is perfect, and supported by sufficient evidence, this should appear affirmatively. On the other hand, if there is any necessary evidence wanting, or if there are omis- sions, mistakes or irregularities, these ought also to be Ijlainly exhibited. The abstract should contain a clear.state- ment of the material parts of all patents, deeds, wills, judi- cial jDroceedings, and other records or documents affecting the title, as well as all liens and incumbrances of whatever nature, and also all facts which fill up the interval of title, commonly called matters in pais, such as births, majorities, marriages, descents and successions, connecting the several transactions, or otherwise operating upon the title. All facts which are stated should be stated correctly, and the parties should be prepared to verify or authentipate them by legal evidence, to which reference is to be had in the abstract. It is believed, however, to be the common practice in this country to set out in an abstract such facts only as appear upon the public records, and perhaps an abstractor would not be liable to an action of damages for omitting from the iibstract any matter not appearing upon such records.-' But there are many things that do not appear of record, which may affect the title and, if not stated in the abstract, must be looked to by the purchaser or his counsel. In the. following presentation of the subject, our remarks will not be confined to that which an abstractor would be bound by his implied contract to furnish, nor to the usual customs of those engaged in the practice, but our effort will be to sug- gest the principal points to which attention is to be drawn J See Chase et al.y. Heauey, 70 111. 208. § 4 ABSTRACTS OF TITLE. in the examination of titles, and to state the method of setting them out in an abstract. § 3. Implied Contract on Part of Vendors. — In Eng- land there is an implied contract on the part of every ven- dor of a freehold estate in land, to furnish the intended purchaser an abstract of the title.^ Although the vendor should think fit to deliver the deeds to a purchaser as a sub- stitute for an abstract, the purchaser would have a right to require the vendor to take back the deeds, and insist on an abstract at the vendor's expense.^ And, in the absence of an express agreement to the contrary, a purchaser who has not -been in possession is bound to pay interest on the pur- chase money, and take the rents and profits only from the time when a good title is first shown, and not from the time fixed by the agreement for the completion of the purchase.* In Louisiana it was held that a vendor of land to be free from incumbrance cannot exact the price, until, besides sign- ing and delivering an act of sale, he has produced the tax receipts and mortgage certificate, showing that the property is free and unincumbered.^ But as a general rule, in this country, the implied obligation of a vendor extends no further than to his ability to make a marketable title. It is well settled that a purchaser cannot be compelled to accept a doubtful or incumbered title ; ^ but it devolves upon him to show that the title for which he has contracted is doubt- ful or bad. Thus, in Pennsylvania it was held, that to put the purchaser in default, it was not necessary for the vendor to tender the whole chain of title, but that it was the duty of the purchaser to examine for himself.^ § 4. Title should be Investigated before Sale is Con- tracted. — It often happens that a defect in the title dis- 1 Wms. Eeal Prop. 428. 2 1 Prest. Abst. 34. n Chitty'sGen. Prac. 298. ^Faisansv. Moore, 11 La. Ann. 741. 5 Shreck v. Pierce, 3 Clarke (Iowa), 350. 6 Espy V. Anderson, 14 Pa. St. 308. In this case it was held sufficient to prove that a certain judgment against the property had been paid, though not satisfied of record. INTKODUCTORY. § 4 closed to a purchaser, leads to a claim by a person who may assert a title founded on this defect, it is, therefore, a very prudent caution on the part of sellers, to have their title thoroughly investigated by their own counsel, before they offer their lands for sale, so that they may be satisfied that there is no reasonable chance of exposing their title to a successful claim, or even to a troublesome and expensive litigation. Nor is this the only advantage to be derived from such a previous investigation, under the advice of those who are conversant with the subject. The formal difficulties with which the title may be attended may be pointed out ; the necessary steps may be taken to remove the cloud ; or, if the defect be found insurmountable, pro- vision may be made in the conditions of sale against the production of proof of any deed or other fact, so far as to compel a purchaser to accept a conveyance without the same.^ As a consequence of the want of such precaution in having the title examined, and all matters of dispute growing out of it settled, before entering into a contract, delay is often occasioned, interest on purchase money lost, and expensive litigation incurred in seeking to enforce or resist specific performance of the agreement.^ It would be a wise precaution on the part of real estate agents and brokers, to adopt a rule requiring sellers to fur- nish an abstract of their titles before placing the property upon the market, in order that they might be enabled to protect the interests of their clients in contracting for its sale, and that buyers might know what title they were negotiating for ; besides this, a sale is often defeated in the time it takes to prepare an abstract, where one has not been prepared in advance. Moreover, an abstractor should not be compelled to make a hurried search. 1 A oondition intended to relieve tlie vendor from liability to deduce a marketable title, and verily the abstract by proper evidence at his own expense, must be expressed in plain and unambiguous language. Os- borne V. Harvey, 7 Jur. 229; Nash v. Browne, 9 Jur. N. S. 4- 1; 1 Sujrd. Vend. Perk.-ed. 507. 2 1 Chitty's Gen. Prao. 295, 203. INTRODUCTORY. § 6 such stipulations as they please, with respect to the expense of investigating the title and preparing the instruments of conveyance. But when there is no previous agreement be-, tween the parties on this point, the matter of expense attending the conveyance is to be settled by the general usage of the country. When the property of an individual is taken for public use, under the exercise of the right of eminent domain, or by virtue of any statute,'the general I'ule is, that the expense of the proceeding shall be borne exclusively by the party for whose benefit the property is taken. The party whose title is forcibly wrested from him, is required to be recom- pensed in money for its value, without being liable for costs.i But when a'sale and conveyance is voluntarily made and entered into for any such purpose, no reason is per- ceived why the transaction should not be governed by the same rules that apply between vendors and purchasers gen- erally. But in England, where property is purchased by a railroad company the expense of the abstract is borne by the company, whether the sale be voluntary or compulsory. This rule, however, apjaears to depend upon statutory provisions.'^ When a mortgage is given as security for a loan, the attorney of the mortgagee commonly prepares the securit}', as the money advanced is that of the mortgagee, and it is his interest that is to be protected. But the expense of preparing the security, and of making the requisite searches and abstracts, must be borne by the mortgagor. " The lender is entitled to his money loaned and the legal interest, which he would not get if he had to bear the expenses of the searches, examination of titles and preparation of the securities." ' In the case of a mortgage given for the con- sideration money of the lands mortgaged, there is seldom any 'occasion for a search being made for incumbrances against the mortgagor. This is especially true where the conveyance and mortgage back constitute parts of the same 1 1 Sugd. V. & P. (Perk Ed.), 125. 2 Dart, on Vend. & P. 131. 3 Willard on Keal Est. & Conv. 550. § 6 ABSTRACTS OF TITLE. transaction, as no incumbrance against the vendee will attach upon an instantaneous seisin, which is immediately conveyed back to the vendor by way of mortgage.^ "In this class of cases," says Mr. Willard, "it is usual for the parties to share the expense ; the vendor paying for the preparation of the deed and for the search for incumbrances on the estate, and the vendee for the bond and mortgage given for the whole, or some part of the purchase money." ^ In ordinary transactions between vendors and purchasers, when the contract between the parties is silent upon the subject, it is believed that the rule commonly adopted in this country is, for the vendor to prepare the title deeds, and to cause the requisite searches and abstracts to be made at his own expense.^ But in England the rule is, that the expense of the conveyance must be borne by the purchaser, unless there has been some different express stipulation on the subject.* The same rule is said to prevail in some of the States in this country.'* The question as to whether it is the duty of the vendee to prepare and tender the conveyance to the vendor to be exe- cuted, in order to put the latter in default, is governed largely by the rule as to whose duty it is to jjay the expense of preparing the conveyance. Thus, in England, the pur- chaser is bound to tender the conveyance;^ but in New York, where it is the duty of the vendor to pay the expense of the conveyance, it has been held that the purchaser may put the vendee in default by demanding the conveyance and waiting a reasonable time for its preparation, or he may himself prepare the deed and present it to the vendee for execution — though if the purchaser voluntarily prepares the deed himself, it must be at his own expense.' 1 JIartiiiclale on Conv., 155, l.oS, and cases cited. 2 Willard on Keal Est. and Conv., 559. Connelly v. Pierce, 7 Wend. 131; Cai-penter v. Brown, 6 Barb. 149. * 1 Sngd. Vend., Perk cd. 309. » Ibid, 310, note. 6 1 Sugd. Vend., Perk ed. 309. 7 Connelly v. Pierce, 7 Wend. 130. Sec Fidler v. Hubbard, 6 Cow. 13; Hudson V. Jewett, 20 Johns. 24; llackett v. Huson, 3 Wend 249. INTEODUOTOKY. § 8 § 7. Ownership of the Ahstract. — Mr. Coppinger, in his work on Title Deeds ^ (London, 1875), says: " As to the general property in the abstract, while the abstract is •open, it is neither in the vendor nor in the purchaser abso- lutely : if the sale go on, it becomes the property of the purchaser ; if off, the property of the vendor. In the mean- time the purchaser has the temporary property, and a right to keep it, even if the title be rejected, until the dispute be finally settled, for his own justification, in order to show on what ground he did reject the title. He has aright to retain it also for the purpose of taking counsel's opinion upon it — for the purpose of further investigation of the title, and of preparing the conveyance or other assurance therefrom. But whenever the purchaser finally rejects the title, and rescinds the contract, and there is no dispute as to the right of the purchaser to so reject the title and rescind the con- tract, not only has the abstract to be returned, but no copies or extracts therefrom must be kept, as the retention by the intended purchaser of such copies or extracts might injuri- ously affect the title of the vendor." The foregoing prop- ositions are supported by the cases below cited. ^ § 8. Preliminary. — Before proceeding it is thought proper to consider first, what is to be regarded as the foundation of title, and in what cases it is necessary to extend the search back to the original starting point, and in what it is not. 1 Page 37. 2Bobei-tsv. Wyatt, 2 Taunt. 28S; Langlowv. Cos,l Chit. 98. § 11 ABSTRACTS OF TITLE. CHAPTEE II. ORIGINAL SOURCES OF TITLE. SECTION. 10. The United States or State Government the Original Source Title. 11. As to Indian Titles. 12. As to Titles Derived from Foreign Governments. § 10. The United States or State Government is usually accepted as the original source of title to all lands in this countiy,^ and in all ordinary cases no inquiry will be required to be made back of a patent from either of these sources. The exceptions to this rule will be noticed as we proceed. § 11. As to Indian Titles. — The only title to the soil that has ever been recognized in the aboriginal inhabitants^ of this country is that of occupation. This right has gen- erally been respected until it has been extinguished by pur- chase or conquest, under authority of the nation exercising dominion over them ; but they have not been permitted to- alienate their possession, except to the nation to which they were thus bound b}^ a qualified dependence. The Indian title is subordinate to the absolute ultimate title of the government ; ' and no grant from an Indian tribe to an 1 Upon the annexation of Texas the public domain was reserved to the- State. In other portions of the United States, with few exceptions, the general government is to be taken as the original source of title to all lands constituting a part of the public domain at the time of the ac- quisition of the territory in which it is embraced. 2 Johnson v. Mcintosh, 8 Wheat. 543 , Mitchell v. United States. 9 Pet. 712; United States v. Fernandez. 10 Pet. 303; United States v. Eillieux's- Heirs, 14 How. 189 ; Sparkman v. Porter, 1 Paine (U. S.) . 457. OKIGINAL SOURCES OF TITLE. §12' individual is recognized in our courts,' — except in tliose- few cases where purchases have been made at Indian treaties,, held under authority of the government. Such pur- chases are rendered valid by their ratification, without any patent from the United States.'^ § 12. Titles Derived from Foreign Governments, while the territory was uhder their dominion, have, generally,, been regarded as inchoate only, until confirmed by the United States. In the purchase of Florida the treaty operates as a confirmation of all perfect titles.^ But titles granted upon conditions not performed, and for the non-performance of which no excuse is shown, are void as- against the government.* The treaty for the purchase of Louisiana imposed only a political obligation upon the gov- ernment of the United States to perfect incomplete titles- originating under France and Spain, which cannot be enforced by the courts.^ The acts of commissioners to- adjust land titles in this territory have generally been held conclusive as to all titles coufii'med according to law.^ But where the contest was between a French and Spanish title,, a patent from the United States was held not to affect the- rights of the other party.' By the treaty of cession fromi Mexico in which California was acquired, the United States were bound to protect all titles to land, legal or equitable,. ' Sparkman v. Porter, 1 Paine (U. S.) , 457. 2 Mitchell V. United States, & Pet. 713. s United States v. Perchman, 7 Pet. 51 ; United States v. Clark, 9 Pet. 16S ; Mitchell v. United States, 9 Pet. 712 ; Smith v. United States, 10 Pet. 326; United States v. Clarke's Heirs, 16 Pet. 228; Les Bois v. Bramell, 4 How. 449. ^United States v. Wiggins, 14 Pet. 334 ; United States v. Eing, 7 How. 833. 6 McCay v. l>illon, 7 Mo. 7. s Strothers v. Lucas, 12 Pet. 412 ; Landers v. Brant, 10 How. 348 ;. Eobinson v. Minor, 10 How. 627; Dent y. Einmeger, 14 Wall. 308. A confirmation to a grantee or his legal representatives, embraces repre- sentatives by contract, as well as by operation of law; and in such cases the question as to whom the confirmation should inure, is open^ina court of justice. Hogan v. Page, 2 Wall.' 605. ' New Orleans v. De Armas, 9 Pet. 224. § 12 ABSTRACTS OF TITLE. perfect or imperfect.^ Under act of 1851, the United States declared the conditions upon which they would dis- charge these obligations to Mexican grantees. But the con- firmation of a claim under this act, even when followed by ii patent, is not conclusive of the equitable rights of third parties. They may assert their rights in a court of equity against the patentee and parties claiming under him, with notice.' But such notice must be actual. When a Mexican grant has been confirmed and a patent issued to parties claiming under a defective derivative title a bona fide pur- chaser from them is not chargeable with constructive notice of the invalidity of such derivative title.' 1 Hornsby v. United States, 10 Wall. 224. See Beard v. Federy, 3 Wall. 479; United States v. Cambuston, 20 How. 59. ' Meader v. Norton, 11 Wall. 442. " Hardy v. Harbin, 1 Saw. 114. See United States v. Sanchez, Hoff L. Cas. 133 ; Uaited States v. Billings, 2 Wall. 444. HOW FAR BACK ABSTRACT SHOULD EXTEND. S 15 CHAPTER III. HOW FAR BACK THE ABSTRACT SHOULD EXTEND. SECTION. 15. Need not date from patent, when. 16. Title by Adverse Possession. 17. Discretion to be Exercised by Abstractor. § 15. Need not date from patent, when. — In the older States it is sometimes impracticable to date the abstract from the original patent. In such cases it is usual to require the title to be shown for a period of forty years, at least. In England, the practice is to take the commencement of the title so as to show the state of the evidence for a period of sixty years ; and in many cases it is material to carry back the title to even a more remote period.^ It is said that the period of sixty years is derived from the analogy to the statutes of limitations against a writ of right, which was fixed at that period.^ The application of that principle to the practice in some of the United States, has shortened that period to forty years. ^ The same principle applied to the statutes of other States, would reduce that period to even a less time. In Missouri, for example, the extreme limitation allowed to persons under disabilities for com- mencing an action, or making entry, is twenty-four years after the cause of such action or right of entry shall 1 1 Prest. Abst. Tit. 5, 246, 252. 2 3 Bl. Com. 196. 3 The People v. Arnold, 4 N. Y. 50S; The People v. Van Eeusslear, 5 Seld. 291. § 17 ABSTRACTS OF TITLE. have accrued.^ Iii all other cases the limitation is ten jears.^ It is essential, however, to the running of the stat- ute, that the premises shall have been held in adverse pos- session during that time. § 16. Title by Adverse Possession. — Adverse possession for the period fixed by the statute- is, in all of the States, in most respects, equivalent to a perfect title. And in some •of the States such possession is an absolute legal title upon which ejectment may be maintained. In many cases to •carry back the title beyond this point, is, to invite tedious mquiry and long discussions. This is especially liable to he the result if the abstract should fall into the hands of an unwilling purchaser, or troublesome or timid counsel. On the other hand, in some of the States, the exceptions in the statutes in favor of persons under disabilities, such as in- fants, lunatics, prisoners, married women and persons beyond seas, introduce an element of uncertainty in point ■of time, against which there is no certain precaution except that of extending the search beyond the ordinary period of human life. And the existence of intermediate estates, de- fering the claims of remainder men, also suggest a like pre- caution in all of the States.' § 17. Discretion to be Exercised by Abstractor. — A dis- cretion ought to be exercised by the abstractor not to dis- close the title by the abstract beyond the common and •ordinary rules of practice, either from mistaken candor, or for a still more culpable motive of extending the abstract for the purpose of increasing his fees. Nor yet to with- hold any material information respecting the state of the title. Whenever a doubt exists, it is his duty to disclose all the deeds or other instruments which may raise the ques- tion, and to leave the purchaser's counsel to his own discre- tion in deciding for himself. It is presumed that in all ordmary cases, a title for forty years would be accepted as marketable in any of the States. In the western States, ' Kev. Stat. 1879, § 3322. ' Ibid, § 3219. ■' Cnrwen Abst. Tit. sec. 30. HOW FAR BACK ABSTRACT SHOULD EXTEND. § 17 however, the general custom is to extend the abstract back to the original patent, and such a requirement is not unrea- sonable. In some cases, as will be further noticed, it is «ven advisable^ to extend the inquiry into the title anterior to the patent. 1 See Ourwen Abst. Tit. 32. § 21 ABSTRACTS OF TITLE. CHAPTER IV. PRELIMINARY INQUIRIES AND SKETCH. SECTION. 20. Importauce of Facts External to the Kecords. 21. Inquiry as the Description of the Property. 22. Inquiry as to the Title and Parties through whom it has Passed. 23. As to the Possession of the Premises. 24. The Search for Transfers and Preliminary Sketch. § 20. Importance of Facts External to the Records. — It is to be remembered that the title to real estate depends not only upon records and documents, but also upon facts external to the records. In commenting upon the usual method of examining titles, Judge Cooley says : "A little reflection will convince us that these records cannot give all the information requisite ; that it is entirely possible for perfect titles not to appear upon them at all, and that often they will indicate an indefeasible right in one who, in fact, has no title whatever. Indeed, in many cases, the nature of perfect titles is such that they cannot be spread upon the records, and in all cases there are important facts concerning which the record is silent, and which must neces- sarily be determhaed by extrinsic inquiries." ^ § 21. Inquiry as to the Description of the Property. — When called upon to prepare an abstract of title, a prudent abstractor, endeavors, in the first place, to ascertain, by inquiry from his client, and from other sources, the exact location and boundaries of the property which is to form the subject of his investigations. Should the property con- 1 Cooley's Bl. Com., Introductory p. xvii., note. PRELIMINARY INQUIRIES AND SKETCH. § 22 sist of any legal subdivision of a government survey, or of lots or blocks which have been regularly laid out and platted, as in the case of town or city property, the numbers and description of the land according to such survey or plat, is all that will be required. But where the property consists in any irregular subdivision of a large tract, or is composed of several small tracts, or parts of tracts, or has been con- veyed in general terms or by irregular descriptions, some previous knowledge of such facts and of the surrounding circumstances may be of great assistance in identifying and connecting the several descriptions contained in the differ- ent conveyances. § 22. Inquiry as to the Title and Parties througli whom it has Passed. — The next inquiry, ordinarily, is in regard to the nature of the title to be deduced by the abstract, the de- gree of interest claimed, the name, age, character, condi- tion, circumstances and place of residence of the present claimant, and of all former owners or claimants of the land. The object of these inquiries being to ascertain whether any of the conveyances are likely to be called in question for the reason that they were obtained from a person de- prived of understanding ; as an idiot, lunatic or the like ; or from an infant or a married woman. Furthermore, a deed, though in due form, may be void, because it was obtained by fraud or duress ; or because it was made for some illegal purpose, or contrary to some statute ; or because it was made fraudulently to deceive, hinder or delay ci'editors ; or because it was made in avoidance of the bankrupt or insolvent laws ; or because it was misread to an illiterate, decrepit or ignorant person ; or because it has been forged, or fraudulently altered in a material point by an interested party ; or because it was executed by a person of the same name, but not the owner of the land. These and like considerations suggest the nature of the inquiries to be made in respect to the persons connected with the several transactions, and the importance of follow- ing up any suspicion that may be raised by the circumstances of any particular transfer. Ordinarily, when there are no (2; § 24 ABSTKACTS OF TITLE. suspicious circumstances brought to light by such inquiries, the regularity of a transfer in these respects will be pre- sumed. § 23. As to tlie Possession of the Premises. — The object, in the next place, is to ascertain what the connection of each of the parties was with the possession of the land during the period of their respective ownerships, and whether other parties have at any time been in possession, and if so, how long, and under what claim of right. In the prosecution of such inquiries, it will be remembered that adverse possession for the period fixed by the statute of limitations, is equiva- lent to a perfect legal title, and that, in some of the States , a deed made by one against whom the land conveyed is held adversely by claim of title, is inoperative to convey the legal title, as against one who has the actual seisin ; and that, in many of the States, the open, visible and notorious possession of land operates as constructive notice of the rights and equities of the occupant, whatever they may be. Consequently, if any person other than the apparent owner should be found in the possession of the premises, inquiry must be made as to the nature of his possession, and as to his claim of right or title, care being taken to inform them of the pending conti-act of purchase. ^ The lease of a tenant should be inspected to ascertain whether it contains any unusual terms or covenants by which the purchaser would be bound. ^ All these inquiries may be of the utmost im- portance, as affecting the title to be deduced. § 24. The Search for Transfers and Preliminary Sketch. — Aided by whatever information he may have been able to obtain from his client, or from] other sources external to the records, the searcher proceeds to make a preliminary sketch, consisting Jirst of a plat of the tland delineating the courses and distances of each line, the situation of the monuments called for, and the loca- tion of all rights of way and other existing easements o which the land may be subject. And next, of the 1 Gov. Coiiv. Ev. ]3, 19, 41. nBytb. Con. 101. PRELIMINARY INQUIRIES AND SKETCH. § 24 names of the grantors and grantees, with the dates of their respective deeds, the date of their filing for record, and the boolt and page where recorded, chronologically arranged. If the seai-cher is supplied with a skeleton abstract of the ■county records, or if there is a tract index, in which the conveyances and incumbrances are all indexed under the number of the tract or lot conveyed or affected, the labor of preparing a sketch of the conveyances and other records and documents affecting the title, will be very much simpli- fied. According to the degree of confidence felt in such county abstracts or indexes, will be the reliance placed upon the sketch thus prepared. In many instances it will be necessary to search the alphabetical index of conveyances. When this is done, reference must be had to all the deeds made by every grantor up to the time of the present con- veyance, and all these deeds are to be examined, and such as do not relate to the land in question, stricken from the sketch. Circumstances will sometimes suggest the pro- priety of inquiring into the ownership of some of the lands purporting to have been conveyed, as such an inquiry might reveal the fact that a mistake had been made in the descrip- tion of the premises, and that the land in question was in- tended—in which case equity will sometimes reform the deed and make it conform to the original intention and agreement of the parties. As in some of the States mar- ried women may pass title to their real estate without the concurrence of their husbands, searching in the husband's name alone may not be sufficient. Conveyances from the donee of a power should be searched for from the date of the creation of the power. In the case of a simple power of attorney, the principal is to be searched against, and not the attoi'ney. In the case of deceased persons, the search should be extended down to the date of the next transfer and record of the deed from the heirs or executors, as the case may be, as a deed or incumbrance may have been re- coi'ded subsequent to the death of the deceased. It is always safest, in the case of executors or testamentary § 24 ABSTRACTS OF TITLE. trustees, to search both agahist the executor or trustee and the deceased, and in the case of a trustee, against the bene- ficiary also. The method of indexing such conveyances is by no means uniform, and they may sometimes appear under the name of either party. It is necessary, also, to in- quire whether there has been a change of testamentary or other trustees, as the case may be. The same observation with respect to the search being extended against all the parties, will apply in many localities to sheriffs' and mar- shalls' sales, and sales for taxes. Though properly indexed in the name of the person whose title is supposed to be transferred, they are not unfrequently indexed in the name of the officer executing the conveyance only. Wills are to be searched for in the office of probate. The search for in- cumbrances will be noticed in a future chapter. In those States, in which a deed takes effect, as against a subsequent purchaser, from the date of its being filed for record only, if no conveyance or incumbrance appears of record, it is generally safe to assume that none exist. Though, as often as any fact or circumstance may appear that would suggest an inquiry for any such unrecorded in- strument, the inquiry thus suggested must be followed up, since whatever is sufficient to put a purchaser upon inquiry, is sufficient to charge him with notice of whatever an ordin- arily diligent search would have disclosed, whether he actu- ally made the search and ascertained the facts or not.^ Ii> . some of the States the statutes provide that a deed recorded within a certain prescribed time after execution shall take effect, and be deemed valid from the time it was made, thus taking precedence over one made to an intermediate pur- chaser. The time thus allowed ranges in the different States from one year in some, down to fifteen days in others.^ In such States, great care must be taken in mak- ing inquiry for unrecorded conveyances within the time thus prescribed. 1 Martiiidale on Conv., § 277, and cases cited. 2 See the statutes collected and cited in Martindale on Conv., § 272. PRELIMINARy INQUIRIES AND SKETCH. § 24 It is to be remembered, also, that the date of the record of a deed has reference, as a general rule, to the time when it is deposited with the proper recording officer at the office of registration; and, therefore, the files of unrecorded instruments must be searched as well as the I'ecords proper. A prudent abstractor will always seek out and examine the original instruments when possible, even though recorded, since the deed itself may disclose defects or irregularities not apparent from the record, or it may have been improp- erly transcribed upon the record by reason of a portion being omitted. The question upon whom the loss shall fall if one is misled by relying upon a record which is incor- rectly made, is one on which the cases are not all agreed. In some of the states it has been held that a deed duly exe- cuted, and left for record by the grantee, is to be deemed duly recorded so far as he is concerned, and is constructive notice to subsequent purchasers, incumbrancers and cred- itors, notwithstanding errors in recording it. But other courts have held that, if errors occur in recording, the record is notice only of what appear on its face.^ ' Merrick v. Wallace, 19111. 486; Polk v. Cosgrove, 4 Biss. 437; Klggs V. Boylan, 4 Biss. 445; Mims v. Mims, 35 Ala. 23. 2 Frost V. Beekman, 1 Johns. Ch. 288; Beekman v. Frost, 18 Johns. 544; N". Y. Life Ins. Co. v. White, 17 ZST. Y. 469; Sauger v. Craigue, 10 Vt. 555; Baldwin v. Marshall, 2 Humph. 116; Lally v. Holland, 1 Swan, 396 ; Shepherd V. Burkb alter, 43 Geo. 443; Chamberlain v. Bell, 7 Cal. 292 ; Bernard v. Campan, 29 Mich. 162 ; Jennings v. Wood, 20 Ohio, 261 ; Scoles V. Wilsey, 11 Iowa, 261 ; Parret v. Shoubhut, 5 Minn. 323 ; Bry- donv. Campbell, 40 Md. 331; Terrell v. Andrew County, 44 Mo. 309; Gilchrist v. Gough, 63 Ind. 576. I'-ii § 27 ABSTRACTS OF TITLK. CHAPTER V. CAPTION OF THE ABSTRACT. SECTION. 27. Caption should contain what. 28. As to the arrangement of the Abstract. 29. Index. 30. Plat of the Premises. I § 27. Caption should contain what. — The object of the caption is to definitely describe the subject-matter and scope of the examination. It shoul-l, therefore, set forth in as clear and concise manner as possible, a description of the property, the title to which forms the subject of in- vestigation, or the object and the extent of the ex- amination, as the case may be. For example, if it be a special examination for taxes, or for judgments against certain parties, the caption should 'so state, or if it be a continuation of a former abstract this fact should be indicated and the particulars as to the person making and the date of the former examination | should be stated. Sometimes, as we have seen, the commencement of the abstract is taken by direction from a specified date, or from some former owner in whom the title is assumed to be good, which fact should in like manner be stated, as well as any other fact or circumstance limiting the extent of the search. § 28. As to the Arrangement of the Abstract. — The labor, of perusing an abstract will be greatly facilitated if, in addition to furnishing information as to its contents, the caption also indicates the method of the arrangement. Thus, when property is made up of different parcels which have been purchased at different times, and have ul- ARRANGEMENT OF THE ABSTRACT. § 29 timately centered in one person, each of the parcels should be distinctly set out and the time and manner in which they are connected shown, in such a way as to direct attention to the specific land to which each part of the ab- stract relates, so that every part may be read with due ap- plication to the subject. This mode should also be adopted as often as the title to be deduced is made up of different terms or estates in land, or where the property has vested in several persons as tenants in common, co-parceners, or joint tenants who have severed their tenancy, and their is a different deduction of title as to each. In such cases it is also proper to give a different head to the different parts of the abstract ; and where two or more parcels or interests are united there should be a new head to direct attention to this fact. The head of the abstract should ,of course, be varied in point of form as the circumstances of each case may require , directing attention to such facts as may be necessary to give a correct understanding of the circum stances attending the title to be deduced. § 29. Index. — Where the abstract is lengthy and com- plicated a brief table of contents, or index will serve to indicate the arrangement and greatly facilitate the perusal. § 30„ -Plats. — In addition to the description of the prem- ises in the caption, as above stated, it will frequently be condusive to an accurate understanding of the situation of the property, to preface the abstract with a map or plat designating its exact location and boundaries and the ease- ments or servitudes, if any, to which it is subject. In the case of urban property it is usual to insert the map of sub- divisions and additions in their chronological order, but maps of original surveys and all plats required to give a definite and accurate understanding of the extent and location of the property which forms the subject of the investigation are properly inserted at the commencement of the abstract. § 33 ABSTRACTS OF TITLE. CHAPTER VI. GRANTS BY THE STATE OK GENERAL GOVERNMENT. SECTION . 33. Modes of Passing Title to Public Lauds. 34. What Law Governs. 35. To wbose Benefit a Patent Inures. 36. Patents Founded on Assigned Land Warrants. 37. The Effect of a Patent upon Eights Prior to it. 38. Validity of Patents. 39. Kegistration Laws as Affecting Patents. 40. The Abstract of a Patent. § 33 . Modes of Passing Title to Public Lands. — Various modes have been adopted by the several States, and by the United States in disposing of the public domain; such, for instance, as by public sale, private entry, homestead, pre- emption, etc., which it is not our purpose to consider. For, generally speaking, in whatever way the sale has been made, the patent is the evidence of title. "The patent is the foundation of title at law; and neither party can bring his entry before the court. "^ The title may be passed by Act of Congress in words of a present grant ;^ and a confirmation by law is to all intents and purposes a grant ;^ but in all these cases it is usual that a patent issues. Where no patent has issued, the question sometimes arises as to whether the title to certain lands has passed by grant. This, of course, de- pends upon the language of the grant. Two things are essential in order to pass the title by grant ; first, it must 1 McArthur v. Browder, 4 Wheat. 488. 2 Wilcox V. Jackson, 13 Pet. 498. " Strother v. Lucas, 12 Peters, 410; Field v. Seabury, 19 How. 323, 333. GRANTS BY STATE OR GKNERAL GOVERNMENT. § 33 appear that the intention was to pass a present title ; and second, the land must be sufficiently described in order to be severed from the remainder of the public domain. Where the privilege of selection is given the grantee, it must appear that the selection has been made. Thus, where a railroad grant was of a certain number of sections of land on each side of the route of the proposed road, but the company had the privilege of location, this was held to be "a con- ditional grant in presenti in the nature of a float," and did not attach to any particular part of the public lands until the necessary determinative lines were fixed on the face of the earth .1 The filing of a map of definite location in the Interior Department is prmia facie evidence of selection, but may be overcome by actual proof of prior location.^ Where lands are surveyed and marked out, the title of the State attaches to section sixteen for the use of schools, and if there be no legal impediment, becomes a good title. ^ In a case in which land-", were reserved to a territory for the use of an institution of learning and duly located, it was held that the title vested in such institution when incorporated by the territorial legislature, and did not pass to the State upon its admission to the Union.* The act of Sep- tember 28th 1850 granting swamp and overflowed lands to the State of Arkansas and other States, has been fre- quently held by the courts and by the Interior Department to be a grant m JO?'esen<^, vesting an indefeasible legal title in the State to all swamp and overflowed lands, rendered thereby unfit for cultivation.^ But more recently it has been decided and it is now regarded as settled that the fact that a tract of land was swamp on the 28th of Sept. 1850 is not of itself sufficient to confer title upon the State or the county claiming by grant of the State. It is necessary ' 18 Opin. Atty. Gen. 244. 2 Kailroad Co. v. Smith, 9 Wall. 95. 3 Cooper V. Koberts, 11 How. 173. ■> Vinneimes Univ. v. Indiana, 14 How. 268. ' Kailroad Co. v. Fremont County, 9 Wall. 89; Kailroad Co. v. Smith, 9 Wall. 95; Clarkson V. Buchanan Co., 53 Mo. 563; Campbell v. Wort- man, 58 Mo. 258; Wendell v. Conklin, Secy's Opinion, Nov. 11, 1873. § 35 ABSTRACTS OV TITLe. in addition that it shall have been selected as swamp land, and the selection approved by the Secretary of the Interior, or if not approved, the tract must fall within the provisions of the Act of March 3, 1857, confirming swamp and over- flowed land to the several States.^ § 34. What Law G-overns. — Generally speaking, the title to land can only be acquired or disposed of according to the laws of the State in which it is situated. But in the disposition of her public domain, the United States pos- sesses the exclusive right to adopt such mode, and to con- vey by such instruments or title as the government may deem proper, independent of locality. In such cases the law of the United States is paramount to the law of the State ; and the question whether the title has passed from the United States, is to be determined by the laws of the latter.^ But as soon as the title has passed from the United States it takes the character of other property within the State, and becomes subject to State legislation.^ § 35. To whose Benefit a Patent Inures. — ^A patent, as we have remarked, is a title from date, and conclusive against all those whose rights did not commence previous to its emanation. But when granted, a patent inures to the benefit of any one to whom the patentee is bound to convey the land, or for whose use he ought to hold it.'' To a man and his "representatives" in a patent, means representa- tives by contract, as well as by operation of law.^ Patents issued in the name of deceased persons are by statute made to inure to, and become vested in the heirs, devisees, or as^ signs ot such deceased patentee, as if the patent had issued to the deceased person during his life.^ But a patent issued in the name of a fictitious person j conveys no title to the land therein described.^ 1 Stephenson v. Stephenson, 71 Mo. 127. 2 Irvine v. MarshaU, 20 How. 558; Pratt v. Brown. 3 Wis. 603. 3 Bagnell v. Broderick, 13 Peters, 43G. ■* Hennen v. Wood, 16 La. An. 263. 5 Hogan V. Page, 2 Wall. 605. 6 3 U. S. Kev. Stat., oh. 11, sec. 244S. ? Thomas v. Wyatt, 25 Mo. 24. GRANTS JiV STATE OR GF.XEKAL GOVERNMENT. § 37 § 36. Patents Founded upon an Assigned Land War- rant. — By act of Congress, June 3d, 1858, which was re- enacted by sec. 2444 of the Revised Statutes, military land warrants were declared to be personal property, and as such to be assignable by the warrantees, by their heirs, or de- visees, or by the legal representatives of the deceased claim- ant, "for the use of the heirs only." Prior to this act, land warrants were regarded as real estate, consequently a transfer of a warrant before that date, by an administrator, must be accompanied by evidence that the same was made in pursuance of an order of court for the sale of the real estate of the decedent. In some States land warrants have been regarded as real estate in the settlement of estates in probate. In others they are regarded as personalty.^ In Ohio and Virginia it was held that where one who was en- titled to a patent died before it was issued, the right, unless devised, went to the heirs the same as other real estate.^ In such case, the recital in the patent of an assignment of the certificate by the administrator of the enterer,.may amount to notice of the want of authority to make the assignment, for j)rima facie he has by law no authority over the realty, and can only acquire 'such authority by order of court. An as- signment of a certificate without such authority will not bind the heirs.^ Where a patent is founded upon the assign- ment of a military right, a court of equity may inquire into an alleged fraud in the assignment, and if found fraudulent, decree the holder of the legal title to be a trustee for the equit- able owner.* The Department of the Interior can afford no redress in such case, even though the assignment be forged.^ § 37. The Effect of a Patent upon Rights which Ac- crued Prior to its Emanation, has been the subject of much discussion and seeming conflict of opinion. As a deduction ' Moody V. Hutchinson, 44 Maine, 57. 2 Brush V. Ware, 15 Peters, 93; Keeder v. Barr, 4 Ohio, 488. s Keeder v. Barr, supra; Bell v. Duncan, 11 Ohio, 192. < Brush V. Ware, 15 Peters, 93. 6 Opin. Sec'y, Feb. 19. 1874. § 38 ABSTKACTS OF TITLE. from the authorities, we give the following general state- ment which we believe to embody the substance of the bet- ter opinions. The legal title remains in the United States until the patent has been issued ; yet when an entry has been made and the land paid for, the purchaser has such an in- terest in the lands as will descend or may be aliened the same as other real estate. And the government can no more dis- pose of the land to another person than if the patent had been issued. The final certificate obtained upon payment of the money, is as binding on the government as the patent. A subsequent sale would be without authority of law and void. When the patent issues, it relates back to the entry, and perfects the title in any one to whom the patentee may have conveyed the land.^ § 38. Validity of Patents. — The law presumes that every prerequisite has been complied with, and that ther patent has been duly issued when it is found duly recorded in the record of patents.^ But such presumption may be overcome by proof ,^ and the patent set aside by a court of competent jurisdiction on the ground of fraud.* A patent issued without authority of law, or contrary to law, is void, and a second patent issued upon legal authority will pass the title. ^ But a patent void for want of authority, cannot be impeached by one resting on naked possession.^ Indi- viduals can resist the conclusiveness of a patent only by showing that it conflicts with prior rights vested in them.' Unless a patent was void upon its face, or was issued with- out authority of law, or against law, it cannot be impeached collaterally in a court of law. A third party in ejectment cannot raise the question of fraud. ^ ' For a review of the cases, see 3 Washb. Real Prop, (ith ed.) 192, 199. 2 Patterson v. Jenks, 2 Peters, 216. 3 Lea V. Polk Co., 21 How. 493. * Opin. Sec'y Int., Oct. 20, 1873. « 5 Opins. Atty. Genl. 7 ; Eoss v. Borland, 1 Peters, 656. « Sarpy v. Papin, 7 Mo. 503. ' Boggs V. Mersed Mining Co., 14 Cal. 316. " Field V. Seabury, 19 How, 323. GRANTS BY STATE OR GENERAL GOVERNMENT. § 39 The statutory requirements for the execution of a patent must be strictly complied with. It has been held in some of the States that signing by the governor is not essential to the execution of a patent,^ but such a pi'ecedeut would be unsafe to rely upon. In a recent well considered casfe on the subject, Chief Justice Waite said: "Each and every one of the integral parts of the execution, is essential to the perfection of a patent. They are of equal impor- tance under the law, and one cannot be dispensed with more than another. Neither is directory, but all are mandatory. The question is not what, in the absence of statutory regu- lations, would constitute a valid grant, but what the statute requires ; not what other statutes may prescribe, but what this does. Neither the signing nor the sealing, nor the countersigning, can be omitted, any more than the signing, or the sealing, or the acknowledgment, by the grantor, or the attestation by witnesses, when by statute such forms are prescribed for the execution of deeds by private parties for the conveyance of land. It has never been doubted that in such cases the omission of any of the statutory require- ments invalidates the deed. The legal title to lands cannot be, conveyed except in the form provided by law. * * « * To be valid, a patent must be actually executed. Before it can operate as a grant, the last formality of the law, pre- scribed for its execution, must have been complied with. No provision is made for an equivalent for these formal- ities." ^ To annul a patent, proceedings can only be taken by the government, or by an individual in its name. The question is one exclusively between the government and the patentee.* Where the title has passed into the hands of an innocent pur- chaser from the patentee, it cannot afterwards be dis- turbed. § 39. Kegistration Laws do not, Ordinarily, Apply to 1 ThePeoplev. Livingston, 8 Barb. 253. s MoGarrahan V. Mining Co., 96 U. S. 316-322. ' Field V. Seabuiy, 19 How. 332; Jackson v. Lawton, 10 Johns. 24; Moore v. Bobbins, 96 U. S. 536-533. § 40 ABSTRACTS OF TITLE. Patents from the Groveriimeiit. They are authorized in most of* the States to be recorded, but the reasons for re- cording them liave not the same force as in the case of deeds. For if a patent is regular in form, and has been correctly issued and engrossed in the general land office, the title under it is perfect, the evidence is perpetuated by record, and there can be no subsequent purchaser without notice, even if it be not recorded in the county records. But it is important to knov?that this has all been done ; and the only reliable evidence of that fact is the patent itself, or a certified copy of the record thereof. And one or the other ought to be required in every instance, as mistakes in patents are by no means uncommon. The chief object in recording a patent in the office of the recorder of deeds in the county in which the land is situ- ated, is to preserve this evidence for convenient reference, and for this purpose all patents should be so recorded. If a patent has never been delivered, it may be obtained by the person entitled to the same applying at the local land office of the district, or the general land office, to which the same may have been forwarded. If the patent has been lost or destroyed, an exemplification of it, which will answer every purpose of the original,^ may be obtained by application to the commissioner of the general land office, upon payment of the fees, which is fifteen cents per hundred words for the amount of copying required, and one dollar for the commissioner's certificate. § 40. Abstract of Patent. — The points most important to be noticed in abstracting a patent are: 1. The date. 2. The name of the person to whom it was issued. 3. The words of heirship. 4. The recital of the payment of the purchase money. 5. The person to whom the payment was made. 6. The recital of any assignment by the cer- tificate holder. 7. The description of the land. 8. The siguing and sealing, and other formalities required by statute, 1 An exemplification of a patent, certified by tlie Commissioner of the General Land OtSee, may be received in evidence without proof of loss of the original. Barton v. Murrain, 27 Mo. 235. GRAKTS BY STATE OE GENEEAL GOVEENMENT. § 40 if any. 9. The volume and page where the patent is recorded. The reader is referred to the forms given at the close of the present work for an illustration of the method of ab- stracting the several instruments and records treated of, .and which commonly evidence or affect title to lands. § 43 ABSTRACTS OF TITLE. CHAPTER VII. ABSTEACT OF A PURCHASE DEED. SECTION. 43. Introduction of the Instrument. 44. Names and Description of the Parties. 4.5. Of the Recitals. 46. Of the Cousiaeration. 47. The Receipt of Payment. 48. The Granting Clause. 49. The Description of the Property. 50. Of the Habendum. 51. Ot t\iei Beddendum. 52. Conditions, Limitations and other special Agreements. 53. Covenants for title. 54. The Testimonium Clause. 55. Signing, Sealing and Attestation 'oy Witnesses. 56. The Acknowledgement. 57. Registration. 58. Memoranda. § 43. Introduction of the Instrument. — It is usual in intro- ducing a deed or other instrument to state what the general character of such instrument purports to be ; as if it be a lease, mortgage, will, warranty or quit-claim deed. And also to state the date of the same. Under this head it may be suggested that, in case of a single abstract, or an abstract consisting of a single chain of title, the deeds and other instruments of transfer should be abstracted in the order of their date. But in complex or compound abstracts, as where the property consists of sev- eral parcels, purchased at different times, and of different shares with different deductions of title to each, the arrange- ABSTRACT OF A PURCHASE DEED. § 44 ment should keep the title to each share in a connected series as long as the title remains distinct.^ § 44. Names and Description of the Parties. — In ab- stracting ancient deeds, when the possession has for many years been held under the title conveyed by them, it is not necessary to do more than state the names of the parties, without adding the places of their residence. But it is always proper to add the descriptive character in which they acted, since this description may afford at one glance an intimation of the character in which they conveyed, and connect the title with former parts of the abstract, or may lead to inquiry which will tend to elucidate the title. In case of modern conveyances it is proper and frequently essential to add the place of residence of the parties, and such other matter of description as the deed may contain,, for the purpose of distinguishing them from other persons of the same name, or affording the information necessary- to an inquiry as to any circumstance connected with them. This is more particularly important in reference to persons through whom a title must be derived, or by whom some act must be done with a view to rendering the title com- plete.^ Any irrregularity in the names of the parties should be stated in the abstract ; as where there are different initials given to the name in different parts of an instrument. If the grantor be a corporation the name by which it presumes to. grant should be carefully scruthiized ; also whether such an act is within its corporate powers. For this purpose the charter must be examined. And if there proves to be any doubt regarding the power, the words expressing it should be stated in the abstract. Particular attention should be paid to whether the wife joined in the conveyance so as to release her right of dower, or if the wife be the principal grantor, whether the husband joined. If there is no such record, this fact should put the abstractor upon inquiry to ascertain whether the grantor 1 See Ante, § 28. 2 1 Prest. Abstr. Tit., 53, 54. (3) § 45 ABSTRACTS OF TITLE. was single at the time of making the grant, and the result of such inquiry should be noted in some manner in the abstract. Extrinsic facts or circumstances of this character, directly affecting a conveyance, are properly stated in the form of explanatory notes to the abstract of the particular instrument affected. If not set out in the abstract, such facts and circumstances must be inquired into, and should be so noted by counsel examining the same. § 45. Recitals in a Deed. — Immaterial matter contained in the recitals of a deed should not be stated in the abstract. On the other hand, recitals which materially affect the history of the title, should be fully expressed. The recitals generally deemed material to be introduced fully into the abstract are of former deeds, or incumbrances which are not recorded, and are not within the power of the vendor, descents, and other facts that fill up the parts of the chain of evidence which are wanting.^ Where deeds of a modern date, and which are in existence, are referred to, it is proper that ref- erence should be had to the deed itself, and the material parts of such deed set out. As notice of a deed is construc- tive notice of all it contains, it is right that the purchaser or the person on whose judgment he relies, should have an op- portunity of considering how far such deed affects his title.^ As often as the deed recited has been introduced into a former part of the abstract, there should be a short refer- ence to it, and this will be sufficient, except so far as the recitals, by averments or other means, disclose .new and ma- terial information, when such additional facts should be given at large. So where a deed is made with reference to, and in exercise of a power, the words of reference should be stated. And where the grantors are trustees, it should be stated at whose request they made the grant ; and if any particular mode of execution or attestation was prescribed to express such request, the clause by which it was expressed should be fully set out. It is to be remembered, however, that what is done, and not what is said, is to be principally 1 1 Prest. Abst., Tit. 56. 2 1 Prest. Abst., Tit. 57. ABSTRACT OF A PURCHASE DEED. § 46 regarded ; and it is material to show that these requisites •were actually and duly observed. Facts which explain the ■'deductions of the title, as often as they are recited, should be set out at large in the abstract. And, in modern trans- actions, although the history of the title may be regular, ^supposing the facts which are cited to be true, yet care •should be taken that the purchaser may have within his i^power the means of giving evidence of these frequently most important circumstances of the title. In short, what- ■ever tends to elucidate the title, either at law or in equity, •or may show in what manner the purchase money ought to be applied, should be stated from the recitals, and such ■circumstances ought always to be supported, either by strong presumption or legal evidence of their existence. § 46. The Consideration should be stated in the abstract •of every deed, either concisely or fully according to cir- ■cumstances of the case. Where the grantor is the absolute ■owner, the consideration may be noticed very briefly. But •as often as some trust or power requires that the money should be paid in a specific manner, that part of the deed which expresses the application should be detailed ; and yet •the statement without evidence would not prove the due .application, unless the receipts of the trustees are to be discharges.^ In these and the like cases, the language of ithe deed should be closely followed in the abstract. Also, when a deed is made in consideration of money payable out •of a particular fund, as trust moneys, or the like, and a trust is implied from the mode in which the money is paid, ov iarises from the fund out of which it is taken, this circum- stance should be stated. It is important that the nature -and the amount of the consideration should be named in the abstract, not only because the recital of it is evidence of the amount which the grantee will be entitled to recover in case of eviction by a paramount title, but, as we have seen, it may be ^uch as to render inquiry necessary as to whether the deed is liable to be called in question by reason of the statute UPrest. Abst.,Tit. 69. § 47 ABSTRACTS OF TITLE. against fraudulent conveyances. Where a deed requires ss consideration to support it, care should be taken that such consideration existed, and if the fact be not shown on the face of the deed, resort must be had to extraneous evidence.. § 47. The Receipt of Payment, and by whom payment was made should be shown in the abstract, as the absence of such receipt may be notice of a resulting trust or lien for unpaid purchase money in favor of the grantor, or if paid by another than the grantee, a trust may be created in favor of the person who paid the consideration. Where it is the custom to indorse a receipt for the purchase money on the deed, it seems that the want of such indorsement is pre- sumptive notice that the purchase money has not been paid,, and raises a question of equitable lien in favor of the seller for his purchase money. This, however, is true only in respect to transactions of recent date. In titles depending on ancient deeds, when the possession has been enjoyed under the deed, the time which has elapsed, coupled with the undisturbed possession, furnishes the presumption that the purchase money was paid at the date of the deed.^ In England paj^ment will be presumed after the lapse of forty years. ^ It is presumed that under the statutes of all the States in this country a presumption of payment would, arise in twenty-one years at most. The prevailing practice in this country, is to embody a receipt for the payment of the purchase money in the deed, immediately following the- statement of the amount of the consideration. The delivery of a deed containing a clause of this character, raises the pre- sumption, in the absence of evidence to the contrary, that the consideration has been paid. And such clause should,, therefore, be set out in the abstract. But it is unsafe for a purchaser to rely upon such a receipt where there are any cir- cumstances tending to raise his suspicion, or to put him upon inquiry in regard to the payment of the consid-- eration. 1 1 Prest. Abst. Tit, 71; 3 id. 15. 2 Dart, on Vendoj-s, 300. ABSTRACT OF A PURCHASE DEED. § 49 § 48. The Granting Clause, or operative words of a coii- ■Yeyance, should be fully set out in the abstract. All the words of grant should be introduced, even though some of them may appear redundant, and though of necessity all of them cannot be operative. This is especially important in those States in which certain words are made to imply cer- tain express covenants, as some of the words used juay be construed to limit the effect of others. And where the grant is in terms limited to the right, title and interest of the grantor, or any like expression follows the granting words, this should be fully stated in the abstract. It should also be shown whether all intended grantors and their wives ,are joined in the granting clause ; and the abstract should also include a statement of the words of limitation to the grantee, his heirs and assigns. In some of the States, how- ever, the word " heirs " is no longer necessary to create an •estate of inheritance, in which States such words may, of ■ course, be omitted. Where there are two or more grantees, if there are any words regulating the manner of their enjoyment, or indicat- ing in what manner they shall hold, whether as joint tenants •or tenants in common, these should be fully set out. § 49. The Description of the Property. — In abstract- ing the description of the property, where the description is short and uniformly the same in all the conveyances, or with- out- any material alteration, there is, probably, no more eligible mode than to give the description at length at the head of the abstract only. But this is not convenient when the description runs into great length ; and it is inadmissi- ble when it is different in different deeds. " The more gen- eral plan is to give the description at large in abstracting the first deed, and in the terms of description which occur in that deed ; and in subsequent deeds to notice each variation, if any, which has taken place in any material part of the description." ^ And as often as any material change occurs in the manner of describing the premises the description i 1 Prest. Abst. Tit. 81. § 50 ABSTRACTS OF TITLE. should be set out in full in the language of the deed in. which such change occui-s. This is important in order that counsel may first determine whether the lands described in' the particular deed to which his attention is immediately- directed, are the same lands as comprised in the former deeds. If the identity does not sufficiently appear from the- description contained in the conveyances, the facts should* be authenticated by such extraneous evidence as would be admissible in explanation of the description, and such a& would be sufficient to support the deed. Wherever other deeds, maps, or surveys are referred to in the descriptive- parts of a deed, the important parts of such deeds, maps,, or surveys should be set out in the abstract of the deed which refers to them. For the reason that such a reference- has the effect to incorporate that which is referred to into the description, the same as if copied into the deed itself,, and what is therein described will pass.' So where lands- are conveyed by the numbers designated upon any plat, or survey, so much of such plat or survey as relates to the land in question constitutes a part of the description, and' should be copied into the abstract.^ § 50. The Habendum should be carefully read and com- pared with the premises in the grant. If the latter contains- the usual and sufficient words of limitation, and the haben- dum is in words the same, it need not be included in the abstract. But if the habendum is expressed in any other than the usual formal words, or if it varies in any respect from the terms of the grant, it should be noticed. The habendum is sometimes used to limit the use, or to declare- to what use the party to whom the deed is made shall have- the thmg granted, and generally to limit the use to which the estate is held. Where so used, it should be fully set out in the abstract, as it may be important when no consid-- eration is expressed or proved in preventing the use from resulting to the grantor. And as a deed by common law- may be void because it limits an estate of freehold to oom- ^ Martindale on Conv., § 108, and cases cited. 2 Dolde V. Vodicka, 49 Mo. 100. ABSTRACT OF A PURCHASE DEED. § 52 mence tn futuro, words which suspend the limitation or operation of the grant to commence at a future time, should also be noticed. And where there are any words of modi- fication severing the tenancy, or declaring in what manner the grantees shall hold, whether as joint tenants or tenants in common, these words should be added. § 51. The Reddendum may be abstracted very briefly, except where some particular reservation is made in some particular manner in which a question may be raised as to its validity, or where there may be doubts as to whether it may not create an exception, and where the reservation is the subject of the title to be considered. It should be remembered that to constitute a good reddendum the reser- vation must be to the grantor, must be out of the estate granted, and must be described in suiEcient terms to afford some means of identification.^ When these facts exist it will sufficiently appear by a simple statement of the reserva- tion in as brief a manner as practicable. § 52. Conditions, Iiimitations, etc. — Conditions should be so abstracted as to show in what degree and to what extent they may operate, and by what modes they may be dis- charged or avoided. And if they have been performed or satisfied, the material circumstances should also be stated, so that an opinion could be formed as to whether the con- dition has been duly discharged. Sometimes it is useful and of great assistance in the perusal of the abstract to aver the fact that the contingency did or did not happen, as the case may be, thus : " It is further provided that in case of an event which did not happen, namely, if A. should die in the life-time of B.," then, etc. Or, " In an event which did happen, namely," etc. Provisions for forfeiture, re-entry and other special agreements should be set out more or less fully according to circumstances. The provisions contained in conditional clauses are so various as not to be capable of being reduced even to general rules, much less of being specified by par- ' Martindale on Oonv., § 119. § 53 ABSTEACTS OF TITLE. liculars. Abstractors must necessarily exercise their own discretion in abstracting them according to the particular circumstances of each case. In general, it is safest and best to set out such clauses fully, or if abridged it should be done with great care. Abstracts, as a rule, are too con- cise in this particular. § 53. Covenants for Title. — The usual covenants in a deed are sufficiently stated in an abstract by naming them ; thus, "with the usual covenants for seisin, right to convey, against incumbrances, of warranty," etc., and whether they extend generally " against all persons," or " the acts of the grantee and those claiming under him " only. When any of the usual covenants are expressed differently from the language in which they are ordinarily framed, such varia- tion should be stated in the abstract. If unusual or special covenants are contained in a deed they should be fully expressed, so as to show their nature and extent. All bui'- densome covenants which may affect the purchaser, at law or in equity, should be stated in the abstract. Where there are several jDarties to a deed it may be essen- tial to stale by and with whom the covenants are entered into, and what class of representatives are bound by them, so as to show whether they are real or personal covenants. It sometimes happens that the grantor covenants for his " heirs, executors and administrators," but fails to include himself, in which case it has been held that he is not bound. ^ Though if it appeared that the omission was a mere clerical error, it would doubtless generally be construed to be bind- ing upon him.^ The use of blanks in the drawing of con- veyances is very conducive to such mistakes, and the point should, therefore, be carefully guarded. Particular atten- tion should also be shown to exceptions against incum- brances, and as often as they occur, together with the incumbrance thus noticed, so far as the same may be mate- rial to the title, they should be stated in the exact words of the covenants. It is to be remembered that the covenants 1 Traynor v. Palmer, 86 111. 477. 2 Hilmert v. Christian, 29 Wis. 104. ABSTRACT OF A PURCHASE DEED. § 55 are no part of the conveyance, however, and when they cease to exist or to be of any force as a personal obligation, either upon the maker or his privies by estate or by con- tract, they are of no consequence, unless they are siuch as create a charge upon the land. § 54. The Testimonium Clause is unimportant, except in those States in which the statutes provide that a scroll may be used in place of a seal, when such intention is ex- pressed in the deed. In such States this clause should always be noticed, and it should appear that it was the intention of the grantor to execute a sealed instrument. This may be set out in the abstract very briefly, however ; as, " attest hands and seals." In a few of the States it is usual, where the wife joins in the deed for the purpose of relinquishing her right of dower or homestead, to mention that fact in the testimonium clause. Where this is the practice, particular attention should be paid to this clause, and if any special form or «xpression is required for this purpose, sufficient should be stated in the abstract to show whether the law has been •complied with. We have heretofore called attention to the importance of inquiring whether any such right exists where none appears to have been relinquished. § 55. Signing, Sealing and Attestation by Witnesses. — Some kind of a signature is now required by statute in all of the States. Generally auy sign or mark intended by the grantor as his signature is sufficient. It should be made to appear in the abstract, however, that the instrument was signed by all the parties, and there is no more expedient method of setting this out than by copying the signatures as they appear in the instrument. It sometimes occurs that the signature is affixed by another jDerson, in which case, as often as there is anything to suggest this fact, evidence should be furnished of proper authority, or that the grantor was present and directed the signing, or ratified the signa- ture as his own. The fact that a signature has been made by another will be suggested by a mark being placed to the § 56 ABSTRACTS OP TITLK. name, in which case the signature ought always to be wit. nessed by one or more subscribing witnesses. At least two would be preferable. Anything unusual in the mode of signing should put the abstractor on his guard, and it should be shown in the abstract. In some States a seal is ho longer required, but where the common law upon that subject is in force, it is essential to the operation of an instrument as a deed. In many of the States a scrawl has the effect of a seal when it appears to have been so intended. We have heretofore noticed the importance of observing whether or not the sealing is men- tioned in the deed itself, in such cases. Where the device intended as a seal is not so mentioned it should appear that it is sufficient as a common law seal. When the instrument is attested by subscribing witnesses this fact should appear, and in States in which such wit- nesses are required, their absence should be noted. It is unnecessary to copy the attestation clause^ unless it should contain something of a peculiar nature. In general, the word " attest," followed by the names of the witnesses, will be sufficient. The examiner should acquaint himself with the legal qualifications of such witnesses, and, as often as circumstances may suggest, should inquire into their com- petency. § 56. Tlie Acknowledgment, to be effectual, must be in substantial compliance with the laws of the State in which the land is situated, in force at the date of taking the same. Abstractors and examiners of titles should therefore ac- quaint themselves, not only with the existing laws of their respective States upon this subject, but also with all revised or repealed laws providing what officers were authorized to take and certify acknowledgments and the requisites of the certificate. The date of the enactment and repeal of each provision should be firmly fixed in the mind, or noted in a convenient place for reference, in order that it may be de- termined whether the acknowledgment of each instrument comes within the law in force at its date. In many of the ABSTRACT OF A PURCHASE DEED. § 5& States statutes have been enacted which are designed tec cure defects in acknowledgments of deeds of ancient date. These should also be looked up and their effect carefully weighed, the examiner being mindful of the fact that such statutes have sometimes been declared to be unconstitu- tional as affecting vested rights.^ It should be remembered that with the exception in several of the States, of the deeds of married women,, the acknowledgment is chiefly important in giving effect to the record as notice. It is not essential to the operation of the deed as a conveyance, and consequently becomes of less importance where the land ha& been held in actual possession under the title derived through the conveyance. A defect in an acknowledgment,, therefore, may amount simply to a defect in proof whicb may be supplied aliunde. Sufficient should be stated in the abstract of an acknowl- edgment to show that the statute under which it was taken and certified has been substantially complied with, if such is the case. In general, the following points should be noticed : ( 1 . ) It should appear that the act of taking and certifying the acknowledgment was performed within the jurisdiction of the officer taking the same.^ Ordinarily, the venue is stated at the beginning of the certificate, by nam- ing the State and county in which the act certified to was done. (2.) The time when the acknowledgment was made should be noted, chiefly as a precautionary measure for the detection of fraud. Should the date fall on Sunday it will suggest fraud or forgery, or may render the certificate void under the Sunday laws. The date of the acknowledgment may also become important as affecting the presumption as to the time when the instrument was delivered.' (3.) The- name and official character of the officer taking the ac- knowledgment should be stated in the abstract, and if the jurisdiction within which he is appointed to act appears to- be different from that mentioned in the caption of the cer- 1 Maa-tindale on Conv., § 265. 2 Ibid., § 257. 3 Ibid., § 65. § 56 ABSTRACTS OF TITLE. tificate, this fact should be noted. The name of the officer should be given in order that it may be ascertained, if desired, whether such person was acting in the official capa- city stated or not, or whether he is a party to the deed, or so directly interested as to be disqualified from taking the acknowledgment. His official character should be stated for the additional purpose of determining whether such officer was authorized under the statute to take acknowledg- ments of such instruments. (4.) The averment that the parties appeared personally before the officer, the names of the parties appearing, and the fact that they were person- ally known to such officer, are important points to be noticed and set out in the abstract. If the identity of the parties has been proved, the substance of the proof and names of the witnesses should also be stated. (5.) The fact of the acknowledgment is the next important point to be noticed and set out in the abstract, and when any partic- ular form of acknowledgment is required, as in case of mar- ried women in several of the States, sufficient should be stated from the certificate to show a substantial compliance with the statute, or a want of such compliance if such is the case. Where the private examination of the wife is required, it must ordinarily appear that she was made acquainted with the contents of the instrument, and exam- ined separate and apart, that is, out of the hearing of her husband, and that she acknowledged the execution of the instrument for the purposes stated, freely and without fear, compulsion, or undue influence of her husband; and in some of the States she is required to state that she does not wish to retract. It is not essential that the exact languasfe of the statute should be followed by the certificate, but it must appear that the statute has been substantially com- plied with.i Where the right relinquished is that of dower or homestead, this should ordinarily appear in the acknowl- edgment ; in some of the States the mere acknowledgment that she executed the instrument would not be sufficient in 1 Martindale on Conv., § 260, ABSTRACT OF A PURCHASE DEED. § 58 such case. ^ (6.) The certificate must be subscribed,^ and where required by statute, it must be attested by the official seal of the officer making such certificate. The signature and seal, when there is one, should, therefore, be mentioned in the abstract. This may be done very briefly by any char- acter or abreviation that will be understood by the parties. When the official character of the officer taking the acknowl- edgment is certified to by any other officer, or where the instrument has been proved by subscribing witnesses, the substance of such certificates should be set out as above suggested. § 57. Registration. — The date on which the instrument was filed for record must be noted, and the volume and page where recorded. The latter is sometimes stated in the beginning, or in the margin of the abstract, for convenience of reference ; but the writer has always found it equally as convenient to place these in their logical order, at the end of the instrument. § 58. Memoranda. — We have before stated that facts or circumstances extrinsic to the record, directly affecting any particular instrument, should be set out in the form of explanatory notes to the abstract of such instrument. Among the matters of this character may be mentioned the fact that the grantor was not in possession of the property at the time of the execution of the instrument, wliich in some of the States would render the deed invalid ; and any fact or circumstance which would tend to show that the deed was fraudulent and void for any of the causes hereto- fore enumerated,^ or the fact that the wife had not joined in the conveyance so as to release her right of dower. Or if there are interlineations or erasures upon any of the original deeds or upon the records, and not properly noted in the attestation clause or otherwise shown to lawfully constitute a part of the instrument, such fact should be shown ; and 1 Martindale on Coav., § 181, and cases cited. 2 The name of the officer in the body of the certificate is not sufficient. Marston v. Brashaw, 18 Mich. 81. 3 Ante, § 22. § 58 ABSTRACTS OF TITLE. additional evidence may be required by the purchaser as to the regularity of any such alteration.^ There are also various other facts and circumstances which connect the several transactions, and fill up the interim of title, proper to be noticed by way of explanation, when not set out in the recitals, and which should be men- tioned in the chronological order in which they belong. Such facts, as we have before remarked, are frequently of the first and most essential importance to the title, and without their recital or averment the title would appear defective. Of this description are the facts of the death, ■or death and failure of issue of persons leaving prior estates, annuities, or such like incumbrances ; the survivor- ship of one or more of several persons being either bene- ficial owners or trustees ; also, the happening of any contin- gency by which one estate was to determine,^ and another take effect. In short, every circumstance which may afford any light on the state of the title, or help to account for the deduction of the same, ought to appear as part of the his- tory of the title. It is further to be observed that every statement contained in the abstract should be supported by legal evidence, so far as possible, though a less degree of stringency in regard to the admissibility of the evidence is usually observed by counsel in the examination of titles, than by a court. It is proper that facts which depend on extraneous cir- cumstances should be authenticated by certificates, of bap- tism, burial, marriage, and the like, or by the affidavits of persons to whom facts are known, which do not admit of 'being verified in any other mode.^ The method of abstract- ing a title dependant upon a descent, or a succession of ■descents from a remote ancestor, will be noticed in a future •chapter. ' Greenl. Ev., sec. 564. 2 1 Prest. Abst. Tit. 196. CONVEYANCES DEPENDENT UPON POWERS. § 60 CHAPTER VIII. or CONVEYANCES DEPENDENT UPON POWERS. SECTION. 60. bl the Abstract of a Power of Attorney. 61. Of the Execution of a Conveyance by Attorney. 62. Powers of Sale in Mortgages and Deeds of Trust. 63. Of the Execution of a Power of Sale. 64. Powers of Appointment. § 60. Of the Abstract of a Power of Attorney. — In ■abstracting a power of attorney the abstractor will be guided by the object for which the power is given and its importance as affecting the title. Powers which have been ■exercised, or which are to be exercised with a view to com- plete the title, should be set out in the abstract almost ver iatim as far as material to the title. But such powers as are barred, released, revoked or extinguished, or become incapable of taking effect, or are in their nature immaterial to the title, as powers of leasing, etc., need not be stated at large. It will be sufficient in such case to notice the power very briefly, stating the reasons why the same is deemed to be immaterial. A complete abstract of a power of attorney will show at ■least the following facts and circumstances, as far as the same exist and are expressed in the power, i. e., the names and description of the parties creating the power, and the person or persons by whom it is to be exercised ; and, as often as it is to be exerci-sed upon the consent or request of a third person, or upon some condition, or the happening of iin event, the mode in which such consent or request is to § 60 ABSTRACTS OF TITLE. be expressed, or the condition or circumstances which are to attend its execution, should also appear. The acts au- thorized by the power should be fully set out, as if it be to sell, to execute deeds or mortgages, to relinquish dower, or to exchange for other lands, or do any other act in relation to the property. And the manner in which such acts are to be done, as if it be to sell for cash, or on credit, to convey with or without covenants and what covenants, if any, are authorized to be entered into, or if it be to exchange,, whether for lands of equal or greater value, or for lands in a given locality, etc. If the power is to be exercised in favor of or in trust for another, this, and the manner in which the same is to be executed, should be fully set out. Also whether the power is to be revocable or iiTevocable, and whether there is to be a power of substitution, and if so, how such power is to be exercised, and a full statement of the clause ratifying the acts performed, or to be per- formed by the agent, if there be such a clause. As to the execution of a power of attorney it will be re- membered that, as a general rule, where a statute pre- scribes certain formalities, and makes them requisite for the proper execution of an instrument, a power to make that instrument must be executed with like formalities,^ and consequently, the execution, acknowledgment and other- essentials to the due execution of the power, will be ab- stracted with the same care and in the same manner as in case of deeds. Before taking title under a deed executed through an at- torney, it will be necessary to ascertain that the power has not been revoked before the execution of the deed. A power of attorney is always revocable by the principal, whether it purports to be or not, unless given for a valuable consideration, or coupled with an interest. But at common law every power, beneficial or in trust, is irrevocable, un- less an authority to revoke it is granted or reserved in the instrument itself .^ In many of the States the statutes in ^ Clark V. Graham, 6 Wheat. 577. 2 Martindale on Conv. § 241, and cases cited. CONVEYANCES DEPENDENT UPON POWERS. § 61 respect to the settlement of decedents estates, prohibit the execution of a power within a certain time after the death of the principal, and in some of the States his death oper- ates as a revocation of the power even though it be coupled with an interest. A power of attorney which in its nature is revocable, may be revoked either by the act of the principal or by opera- tion of law. A conveyance of the same property or doing of the act authorized by the power, whatever it may be, by the principal himself, would, of course, put an end to the power, or it may be revoked by simply giving notice thereof. Generally, where the power of attorney has been recorded, an instrument revoking it will be required to be executed with similar formalities, and recorded in the same office in which the power is recorded, and notice or a copy of the in- strument is also required to be served upon the attorney.^ If no such notice is found of record it will generally be assumed that none has been given. But there are many other circumstances that may serve to revoke a power by operation of law, such as the death, bankruptcy, or after- occuring insanity of the principal, or the marriage of an unmarried woman, which necessitate inquiry extrinsic to the record, and evidence should always be required that no such fact existed.''' This evidence may be dispensed with, how- ever, where the power is thirty years old, and possession of the property has gone according to the deed under it for that period, the presumption arises in such c4se, without further evidence, that the power was valid and subsisting.^ § 61. Of the Execution of a ConveyaBce by Attorney. — In abstracting deeds executed by an attorney-in-fact, it is to be remembered that the power must be strictly pursued in 1 Weile V. United States, 7 Ct. of CI. 535. 2 The rule of the common law that the death of the principal, whether known or unknown to the agent, terminates his authority, has been ab- rogated by statute in some of the States, among which may be men- tioned Pennsylvania, where the authority of the agent does not cease until he rsceives notice of his principal's death. Purdon, 67. 3 Gov. Conv. Ev. 37. (4) § 62 ABSTRACTS OF TITLE. such instrument, and, therefore, it should be made to ap- pear in what manner the requirements of the power have been complied with. If any special requisites are pre- scribed by the power in the execution of the instrument, these must be strictly complied with, even though they may not be requisite under the general law to the due execution of a deed. It will, therefore, be necessary to examine the power and the instrument by which it is exercised with great care, and set out fully in the abstract the essential parts of both instruments. It is further to be remembered that in the execution of a power the agent is required, as a general rule, to act in the name of his principal and not his own name. This is true in respect to the acknowledgment, as well as the body of the deed ; he should execute and ac- knowledge the instrument as the act and deed of his prin- cipal.^ Special care should be taken in cases in which a married woman joins in the power for the purpose of au- thorizing the relinquishment of the right of dower or home- stead. It may be a question worthy of consideration whether it is not essential that the power be specifically conferred upon the attorney in order to bar her rights, or whether she would be barred by signing the authority to convey.^ § 62. Powers of Sale In Mortgages and Deeds of Trust. — In abstracting a mortgage or deed of trust containing a power of sale which has been exercised or which is to be ex- ercised, whereby the instrument becomes a link in the chain of title, it is important to set out fully the terms upon which the power or trust is to arise, the manner in which it is to be exercised, and what notice is required to be given of the sale. A complete abstract of such instrument will embrace the following clauses : 1. The granting part, which corresponds to the premises of an ordinary deed and is abstracted in the same manner. As often as there appears in this part of the instrument a recital of indebtedness and a covenant for its payment, this should be stated in the abstract, as such a covenant is iMartindale on Conv., §§ 246, 253. 2 Ibid., § 240. CONVEYANCES DEPENDENT UPON POWERS. § 62 often of importance as effecting the personal liability of the mortgagor, besides being the foundation of the trust upon which the power of sale is created. 2. The condition of defeasance provides, that if the mortgagor or those claiming under him, shall, within the time limited, pay to the mortgagee his executors, adminis- tratoi's or assigns, the debt secured, then the deed shall be void, or as sometimes expressed, the mortgagee will recon- vey the premises to the mortgagor. The method of ab- stracting this clause, will depend somewhat upon the cir- cumstances of the case and the purpose for which the ab- stract is made. If the intention is that the mortgage shall be discharged and the property relieved of the incumbrance, special attention will be paid to the clause providing who is to receive jDayment and enter a discharge. It will be re- membered that, when payment is to be made to trustees, they must, as a rule, all join in the receipt and in entering the discharge, except such of them as have never acted and have renounced the trust. When the mortgage is to be foreclosed and the title under the mortgage is the subject of investigation, the time of payment of the debt or perform- ance of the duty secured by the mortgage, should be clearly stated, in order that it may be determined with cer- tainty whether a breach of the condition has occurred. 3. So the debt will be concisely or fully described as cir- cumstances may suggest, and if there be any reason to doubt the existence or validity of the debt, this will call for ex- trinsic inquiry. Where the debt is not all due at the time the sale is made, or is proposed to be made, and there is a provision in the mortgage, that upon default in the pay- ment of any installment, the whole shall become due and payable, this will of course be set out, as well as any other stipulations affecting the forfeiture or providing the event upon which the power of sale is to be exercised. 4. The clauses providing upon what event the exercise of the power is to depend ; by whom, and in what manner it is to be exercised ; and what notice is required to be given prior to the sale, should be fully set out. It is especially § 63 ABSTRACTS OF TITLE. important to uotice to whom the power is limited in the event that it is to be exercised by an assignee, or any per- son other than the original donee. It is also important to note the place of sale and the particulars of the notice re- quired to be given. The better plan is to copy into the ab- stract the clauses containing these provisions, in the exact language of the instrument, or with such abreviations or omissions only as the knowledge and experience of the ab- stractor has taught him that it is safe to make. 5. As often as there is a clause providing that the pur- chaser shall not be bound to inquire whether any default has occurred in the performance of the conditions of the mortgage, or whether notice has been given, or whether there has been any irregularity or impropriety in the sale, or that the recitals of the trustee shall be taken as prima facie evidence of the facts stated, this should be set out in the abstract. So, a clause providing for the special application of a trust fund, requires to be noticed, in order that it may be determined whether it devolves upon the purchaser, to see to its proper application.' We have alluded elsewhere to the matter of seeing that the trustees have full power to give discharges upon receipt of the loan. § 63. Of the Execution of a power of Sale. — Where title is derived through a sale made by a mortgagee or trus- tee, under a power contained in a mortgage or deed of trust, it must first be seen that the trustee had authority to make the sale and secondly that this power was propei-ly exer- cised. The authority of the trustee will depend first upon the language of the power. If the sale and conveyance is made by any person other than the original donee of the power, it must be seen that the power is so limited as to pass to such assignee or substituted trustees as the case may be ; and for this purpose the nature of the assignment or method of the substitution must also be inquired into.^ 1 See Martindale on Conv. § 461. ' If assignees are included amongst the persons who may execute the power, an assignee, to acquire that right, must be the legal assignee of conveyancj:s dependent upon powers. § 63 It will be remembered that a trustee cannot delegate his duties to another, unless the instrument creating the trust clearly confers such power upon him.^ And in all cases of the appointment of new trustees and a sale by them the power enabling the appointment will require attention and the mode of executing that power sometimes gives rise to questions of considerable nicety. When the sale is effected by substituted trustees, the words of the authority and the deed of substitution should be scrupulously regarded and carefully set out in the abstract. And in case of the ap- pointment of a new trustee by a court of equity, the pro- ceedings must be examined and abstracted in the same manner as other judicial proceedings. If the mortgagee or trustee was duly empowered to make the sale the next question to be determined will be in re- gard to the happening of the default or condition upon which the power or trust was to arise and whether the , right of foreclosure has become barred by limitation or otherwise. These questions will depend upon a variety of circumstances as .well as upon the language of the power, and must be determined according to the existing state of facts.^ Where the power of sale in a mortgage or deed of trust provides that a purchaser at the mortgage sale shall not be bound to inquire whether any default has occurred in the performance of the conditions of the mortgage, or that the recitals of the mortgagee or trustee shall be taken a.s prima facie ei^idence of the facts stated, the duties of the examiner will be very much simplified, but it must ap- pear that the purchase and sale was made in good faith both the debt and the mortgage. A mere equitable assignee can- not, execute the power. Martindale on Conv. § 458, 510 and cases cited. 1 Where a deed was to two persons, or the survivor of them, and to the heirs and assigns of the survivor, held that the surviving trustee could not substitute another to the powers conferred, upon him by the deed of trust. Whittelsey v. Hughes, 39 Mo. 13 ; Titley v. Wolstenholme, 7 Beav. 425. 2 For a discussion of the law on this subject, see Martindale on Conv. §§ 496, 497. § 63 ABSTRACTS OF TITLE. without knowledge of irregularities or collusion on part of the purchaser.^ What notice of the sale is required to be given and the requisites of such notice are questions which depend en- tirely upon the language of the power and upon the statute of the State. ^ Where the requisites of the notice are pre- scribed by statute, its provisions must be complied with, whatever may be the terms of the power .^ The power may, perhaps, impose additional restrictions upon the sale, but cannot take away those provided by the statute. Sufficient should be set out in the abstract to show in what manner the above mentioned requisites have been complied with, and whether the sale was made in accord- ance with the notice and in pursuance of the power. A copy of the notice will ordinarily be required for this pur- pose, and the recitals of the deed setting forth the time and place and method of conducting the sale should also be copied into the abstract. If the sale was adjourned or postponed to a future date, the reason for the adjournment and the notice given thereof, should be inquired into and set out in the abstract.* A mortgagee, as well as any other trustee, is bound to use all means in his power to get the best price for the property. He must, therefore, sell it as a whole or in parcels, according as it will bring the most money. ^ And must not impose unreasonable conditions upon the sale which would deter persons from attending and bidding.^ The capacity of the grantee to purchase and of the grantor to make the deed, must also be considered, as well as the 1 Jenkins v. Jones, 2 Giff. 99. 2 No notice is necessary unless made so by statute or by the power it- self. Davey V. Currant, 1 De G. & J. 535. But where the power of sale is vested in a trustee it has been held that notice should be given to the mortgagor although the power is silent upon the subject. Anon, 6 Mad. 10; Lee on Abst. 141. ' Lawrence v. Farmer's Loan and Trust Co., 13 N. Y. 200, 642. * As to what notice is required to be given of an adjournment, see Martindale on Conv. § 513. 5 "Wells v. Wells, 47 Barb. 416. * Martindale on Conv. § 513 and cases cited. CONVKYANCES DEPENDENT UPON POWERS. § 64 formal requisites and execution of the instrument. In this connection it will be remembered that, unless authorized by statute, or the right is given him by the terms of the power, the mortgagee or trustee cannot become a purchaser at his own sale, either directly or indirectly. '^ A mortgagee or trustee, being the holder of the legal title, must grant in his own name and not in the name of his principal, as in case of a simple power of attorney.^ But where the power was to convey "as attorney" of the mortgagor, it was held that a deed made by the mortgagee in his own name would not pass the legal title. ^ Where the mortgagee is described as administrator, the deed is properly executed under the power, in his own name, since he cannot hold land in the capacity of administrator.* The ordinary clauses of such a deed and the method of its exe- cution, acknowledgment, etc., should of course, be ab- stracted in the same manner as any other deed. § 64. Powers of Appointment. — No title requires more care than one which depends upon the exercise of a power. Powers of appointment, in particular, frequently involve some of the most intricate problems in the law. They are less used in this country than in England. It is difficult to say that any other than a literal observance of the words of the power can be depended upon. They are so various as not to admit of being followed in detail here. Most powers, however, describe the person by whom, the time at which, and the mode in which they are to be exer- cised, the estate to be appointed and the ceremonies which are to attend the execution of the power. The most eligi- ble plan in abstracting such conveyances is to analyze the power, divide it into parts and collect the different circum- stances required to its valid exercise, and to show in what 'Martindale on Conv., § 514 and cases cited. Belief from such a sale would be afforded, even at considerable distance of time. Bobert- son V. Norris, 1 Griff. 421. ^ Crawston v. Crane, 97 Mass. 459. 3 Speer v. Hadduck, 31 III. 439. Covantry on Conv. Ev., 152. (8) § 139 ABSTRACTS OF TITLE. placed under the supervision and control of the court having probate jurisdiction, and the executor or administrator has no authority to sell, except by order of court, and the title is vested in the legatee or distributee only upon a final order of distribution. In which case the proceedings are to be abstracted in the same manner as other judicial sales or decrees. If, however, the legatee has assigned the lease without such order of distribution, or the consent of the executor, it is presumed that he would be estopped, and if there were no other claims against the estate, the assignment, though void at law, would, perhaps, be good in equity. It is further to be remembered that no person can grant a lease to continue beyond the termination of his own es- tate — unless made under a power — nor can he create an estate of higher degree than his own. Thus, if A being tenant for life demise for ninety-nine years, this estate, unless confirmed by the person in remainder or reversion, will determine on the death of A. Neither can the tenant of a term, however long, create a life estate, inasmuch as it would be a greater estate than his own.^ But either the tenant in fee, for life, or for years may grant a smaller es- tate out of his own, unless there be some legal impediment. Of course no person would be rash enough to buy a life interest without some knowledge of the existence of the life. This and the value of the life, are points upon which a proposed purchaser may be presumed to have satisfied himself. On the purchase of the widow's estate in dower, or the husband's title by curtesy, the requisites to those legal incidents should, of course, be required and proved. 1 "If a lessee for years grant to another a rent out of the land, for the life of the grantee, this is a good grant during the term, if the grantee should so long live ; but such rent must necessarily be a chattle interest, though limited for the lives of the grantees." 2 Prest. Abst. Tit. 1. "So if a lessee for years grant land to another for the term of his life, the grantee hath the whole term: but with this collateral determination, if the grantee live so long." Ibid., 2. ABSTRACT OF TITLE TO A LEASEHOLD. § 140 Where a derivative estate or under lease is the subject of inquiry it is particularly incumbent upon the purchaser to advert to the terms of the first grant or lease ; for whether the under-lessee have actual notice of the superior lease or not, most of the terms, conditions and clauses contained in it, are binding upon him. It does not follow, however, that even with notice of the superior lease, all the covenants inserted in it will be binding upon the under-lessee. And the assignee of the land, or of part of the land originally demised, it is well known, may not be bound by some of the covenants contained in the original lease. ^ The distinctions between covenants which run with the land and are binding upon assignees and under-lessees, whether named or not, and those which are merely personal, are very important to be kept in mind by the examiner.^ §140. Method of Abstracting the Formal Parts of a Lease. — 1. The premises of a lease correspond, pn'^matter and form, to the granting part of a purchase deed, and should be abstracted in the same manner. The material parts being the names and description of the parties, the recitals, the words of demise, and description of the prop- erty demised. 2. The date of the commencement and of the termina- tion of the lease is the next point requiring the attention of the Abstractor. This is important, not only as indicating the duration of the estate, but because a fixed and definite period of duration is essential to the validitygof a lease for years. It must at least be capable of being made certain.* So in leases for lives there must be a certainty of the lives intended.* Care must be taken to note that there exists under the lease the duration of the interest professed to be granted, and also the means by which it is to be terminated.^ iLee on Abst. Tit., 90, 91. 'See Martindale on Conv., § 374, et seq. •Ibid., §§322,323. <2Prest. Abst.Tit., 20, 'Ibid., 10. § 141 ABSTRACTS OF TITLE. 3. The reservation of rent, or other consideration stated, should be set out in the abstract, and it should be shown to whom the reservation is made, since rent cannot be reserved to a stranger who has no privity of estate.^ Where the consideration is the surrender or renewal of a prior or existing lease the old lease and the mesne assign- ments, if any, must also be abstracted, since the new lease would not exclude an incumbrance faffecting the property under the latter, and the renewed interest is usually held by the courts to be for the benefit of the parties beneficially entitled under the former leasc.^ 4. Stipulations in form of conditions, whereby it is pro- vided that in case 'of breach thereof the lease shall forfeit and become void, or the lessee may enter etc., should be set out with precision ; and as often as the instrument contains a clause waiving demand of the premises upon condition broken, this should be carefully noted. The importance of such waiver arises both from the difficulty of making a le- gal demand in case of a future forfeiture, and as affecting a previous forfeiture for which no demand has been made. 5. The covenants in a lease should be carefully abstracted, those upon the part of the lessee as well as upon the part of the lessor, and it should be noticed whether assigns are named, so as to be affected by such covenants as would not otherwise operate in their favor or be binding upon them. §141. The Method of Ahstractmg the Execution and Acknowledgement of a lease will not vary materially from the mode adopted in respect to purchase deeds, but the re- quisites to the valid execution of a lease differ from the rules applied to deeds in some of the States. As a general rule, a lease for a longer period than that for which parol leases are binding, must be by deed; and to be valid against third persons without notice, must be executed, ac- knowledged, and recorded in the same manner and with the 1 Exchange Bank v. Eeid, 107 Mass., 41. 'Moore's Abst. Tit., 15; Lee on Abst. Tit., 109,-111. ABSTRACT OF TITLE TO A LEASEHOLD. § 141 same formalities as a deed of the freehold.^ But in some of the States it would seem to be sufficient that the lease is in writing, though not under seal.^ In North Carolina it has been held that both parties are required to sign in order to be bound by the covenants,' while in Nevada it was held that a party to a lease will be- come liable on the covenants by accepting it, though he do not sign.* A lease in form of an indenture must be deliv- ered to both parties.® When a lease has been executed by an agent, caution is to be observed in three things, namely: The authority must be sufficient,^ the agent must pursue his authority strictly, and must grant in the name of his principal,'' and where a lease has been granted under a power it should not only be seen that the power was strictly followed, but it should ap- pear that the terms of the power authorize the particular kind of lease granted.^ In the application of these princi- ples also, the authorities will be found to vary in point of stringency in different states, and the examiner must, there- fore, determine any question that may arise by the laws of the particular State. ' iPor a collection of the statutes and decisions on. this subject, see Martindale on Conv., 364. And see Wilhelm v. Mertz, 4 Greene (Iowa) 54; Lake V. Campbell, 18 HI., 106; Tattle v. Jackson. 6 Wend., 213; Town of Lemlngton v. Stevens, 48 Vt., 38; State of Connecticut v. Bradish, 14 Mass., 296; Johnson v. Phoenix Mut. Life Ins. Co., 46 Conn., 92; Kittle v. St. John, 10 Neb., 605; Porter v. Cole, 4 Greenl., 20; Colby V. Kenniston, 4 N. H., 262; Jackson v. Winslow,9 Conn., 13. But see as to lease of married women, Miller v. Herbert, 6 Phil., 531. And it is to be remembered that possession of the premises may operate as notice of the rights of the tenant. Martindale on Conv., § 280, and cases cited. 2 Den V. Johnson, 16 N". J. L., 116; Allen v. Joquish, 21 Wend., 635; Olmstead v. Niles, 7 N. H., 526. 3 Warde v. Kewbern, 77 N. C, 460. ^Piltpn V. Hamilton City, 6 Nev., 196. «Kelsey v. Tourtelott, 59 Pa. St., 184. ' In general, where the lease is required to be by deed, the authority of the agent must be under seal. Martindale on Conv., § 230. ^Shep. Touch., 270. Lee on Abst. Tit., 104. § 142 ABSTRACTS OF TITLE. §142. Assignments and Under-Leases. — The assign- ment of a lease is required by the English Statute of Frauds to be by deed, note or writing signed by the party or his agent thereto lawfully authorized. This statute has been adopted in most, if not all, of the United States, with more or less modification. It may be stated as a rule of univer- sal application that no special set of words or phrases need be used. All that is essential is that the intention of the parties shall appear. But under the common law the assign- ment must be under seal to convey the legal interest, and where the estate is of a freehold nature, of course the as- signment must be that description of instrument suited for passing freehold estates. ^ The first inquiry that suggests itself in respect to the as- signment of a lease is whether license or consent of the landlord is required, and if so, whether it has been obtained. If license has been once granted the restriction is forever gone, unless a specific license is provided for. So the purchaser of a derivative lease should always see that the covenants for renewal of the original lease extends to the making of new under-leases upon the renewal of such original lease, and upon what terms; and whether there be a covenant that the under-lessees shall hold on after the original lease is surrendered, until a new lease is granted. Caution is necessary on the part of the purchaser of a derivative renewable lease, in regard to the renewals, which can usually only be made with the persons possessed of the original legal term ; and this observation particularly applies to cases where the legal term has been vested in trustees. This suggests the desirability in practice for a purchaser or mortgagee of a renewable leasehold to take an assignment of the whole length of term, rather than rely upon a derivative term, to which no right or power of re- newal can attach ; although the act of taking an assignment may in some cases expose the assignee to liabilities in re- iLeeon Abst. Tit., 87. ABSTRACT OF TITLE TO A LEASEHOLD. § 142 spect to rent and covenants.^ The importance of recurring to the terms of the first grant to ascertain what covenants will be binding upon the assignee has already been sug- gested. It is important where a leasehold is purchased to have produced the last receipt for the rent, not merely for the sake of ascertaining that there are no arrears, but for the purpose of showing that up to the date of the receipt no forfeiture has been incurred, or that as far as may be by receipt of rent subsequently, any prior forfeiture has been waived.^ ^ As to assignments of leasehold property, it is observable that accep- tance of the lease is an acceptance of all its liabilities ; an actual entry on the land is not necessary ; neither is it necessary that the assignee sign the deed to support an action upon the covenants against him. Cov- antry on Conv. Ev., 147. ^Leebn Abst.Tit., 94. § 145 ABSTRACTS OF TITLE. CHAPTER XVI. THE SEARCH FOR LIENS AND INCUMBRANCES SECTION. 145. Of the Subject generally. 146. Liens in favor of the United States. 147. Debts due the State on public accounts. 148. Official Bonds. 149. Taxes due the State or Municipality. 150. Special Assessments under City Ordinances. 151. Judgments and Executions. 152. Forfeited recognizances. 153. Attachments and other Judicial proceedings. 154. Lis Pendens. 155. Mechanics' Liens. 156. Vendors' Liens. 157. Decedents' debts. 158. Legacies and Annuities. 159. Trustees Expenses. 160. Mortgages and Deeds of Trust. 161. Leases. 162. Dower and Curtesy. 163. Easements and Servitudes. 164. Miscellaneous Liens and Incumbrances. 165. The Abstractors Certificate, § 145. Of the Subject generally. — ^Last, but by no means least, among the duties of an abstractor, is the search for liens and incumbrances against the property or title un- der investigation. Liens and incumbrances, like many other branches of the law concerning titles to real estate, are so far controlled by statute and local laws as to render anything more than a few general observations, impracti- cable. The effort of the writer will be, as in other por- THE SBAECH FOE LIENS AND INCUMBEANCES . § 148 tions of this work, to suggest the points to which attention is to be drawn, and leave the reader to investigate the law on the subject for himself. § 146. Liiens in favor of the United States. — Balances due from any oflScer receiving money for the government, are a lien upon the property of such officer and his sureties, from the date of levy of a distress warrant and the record thereof in the office of the Clerk of the District Court of the proper district. ^ The internal revenue tax is a first lien upon a distillery,^ and all taxes due the United States con stitute a lien upon the property of the persons liable to pay the same, from the time they are due until paid, with in- terest, penalties and costs .^ § 147. Debts due the State on public accounts. — The statutes, in many of the States, contain similar pro- visions to those of the United States, in respect to bal- ances due from officers and agents of the commonwealth on public accounts. The circumstances which give rise to such liens are usually of public notoriety, and will generally sug- gest the nature of the search to be prosecuted. § 148. Ofllcial Bonds. — A variety of statutes have been enacted in the different States with respect to the official bonds of certain officers, whereby such bonds are declared to be a lien upon all the real estate held jointly or severally by the officers giving the same and their securities, from the time of filing until the officer is duly discharged of the trust. This provision is most frequently applied to the bonds of treasurers and tax collecters and their surties . Such bonds are usually to be found of record in some designated public office, the files and records of which should be examined, and a minute made of any bond made by the present or former owner of the real estate in question, which would constitute an existing lien upon the same. 1 U. S. Eev. Stat., Sec, 3629. = Ibid, Sec. 3251. > Ibid, Sec. 3186. § 151 ABSTRACTS OF TITLE. § 149. Taxes due the State or Municipality are usually a first lien upon thrf property assessed, from the date of the assessment until paid. In some of the States statutes have been enacted making taxes assessed on personal property also a lien upon the real estate of the owner. ^ The date from which taxes become a lien varies in the different States, and is subject to such frequent legislative changes that any statement in reference to it would be liable to be- come misleading. But the subject is of such importance that no one who undertakes to examine a title or prepare an abstract will fail to be posted on the laws of his State in this regard. Also as to the offices and records in which searches are to be made for current and delinquent taxes and tax sales or other proceedings thereon. § 150. Special Assessments Under City Ordinances. — Municipal corporations may, when authorized by charter or the general law, provide by ordinance for making special charges upon real estate for public purposes ; such as open- ing or grading streets, paving or lighting the same or estab- lishing and maintaining sewers or water works. The laws regulating such charges and the enforcement of the same are local and statutory, and must be consulted with refer- ence to the particular case. § 151. Judgments and Executions. — Judgments are to be searched for in the proper offices against all those who have held the land within the period for which they are a lien, from the beginning of such period down to the date of their respective conveyances. The search, however, is seldom carried back beyond the period when the owner became adult, unless there be reasons to expect there are judgments against him while a minor. Judgments are generally a lien upon all real estate of the judgment debtor situated within the county for which the court sits, from the date of the rendition thereof. The lien attaches from the time of own- ership of such debtor, but as judgments obtained prior to ' Union Trust Co. v. Weber, 96 111., 346. THE SEARCH TOR LIENS AND INCUMBRANCES. § 151 the commencement of ownership affect the seisin when ac- quired, search should be extended beyond the commence- ment of ownership. It is observed by Mr. Coventry that the solicitor for a purchaser is justifiable in not searching for incumbrances against any other proprietor than the ven- dor, if he finds no judgment entered up against him within ten years, unless there are very obvious reasons why the search should be continued further or against a former pro- prietor. The same author says "with respect to the per- son against whom it is necessary to search for judgments, the presumption is that the notorious change of ownership and possession occasioned by a sale would have brought to light a docketed judgment if any existed against a former proprietor; it is also presumed that each purchaser in the title has exercised the common prudence of making a regu- lar search for judgments against his vendor. With respect to the time during which it is usual to search, the term of ten years has been fixed upon as a convenient and probable period during which it may be fairly supposed a judgment creditor whose debt honestly incurred would not remain dormant. "1 We know of no instance in which any such practice has been recognized or presumption invoked by the courts of this country to relieve an examiner from the charge of negligence where an existing lien had been over- looked, but the abstractor will give to it such weight as he thinks it entitled under the particular circumstances of the case, in determining against whom and for what length of time he will make the search. In New York, if a judgment is suspended by injunction or appeal, the time of the lien is extended for the period it is suspended,^ and similar provisions may exist in other states. Judgments in the United States Circuit or District Court rendered within any State cease to be liens on real estate ^ Covantry on Conv. Ev. 231. "N. Y. Code of Civil Procedure, Sec. 1285. § 151 ABSTRACTS OF TITLE. and chattels real, in the same manner and at like periods as judgments of the State Courts/ and are, to a certain extent,, subject to State legislation . In general, judgments rendered in a federal court have the same lien on land of the debtor within the territorial jurisdiction of the court as are given to State Courts within the territory for which they sit.^ But in some of the States, to become a lien in any other county than that in which the judgment is rendered, a certified copy thereof must be filed and recorded in such county.'- Where this provision does not exist, it is just as important to search the records of the United States Courts for judg- ments as the local State Courts, except that the limited jurisdiction of the federal courts renders it less probable that any judgment will be found. Judgments in the Supreme Court of the State are, or- dinarily, a lien upon any property of the judgment- debtor within the State, but as such courts have appel- late jurisdiction only, except in a limited number of pro- ceedings, a record of the cases in that court will usually be found in the local tribunals. In what local courts the records and dockets are to be' searched for judgments, will depend, of course, upon the laws governing the jurisdiction and defining the powers of the different courts. Ordinarily, judgments rendered by justices of the peace are not liens upon real estate until a. transcript is filed in a court of record, or other office designated, for which a search should be made. The appearance dockets of courts of general jurisdiction should be searched for pendent causes which might come to- judgment during that term, and to guard against judgments, thatmay have been docketed on appeal from Justices Court.. 'U.S.Eev. Stat., Sec. 967. 2 Simpson v. ITiles, 1 Ind., 196 ; Shrew v. Jones, 2 McLean, 78 : Browtt v. Pierce, 7 Wall. 205; Branch v. Lowery, 31 Tex., 96; Sellers v. Corwin, 5 Ohio, 398; Lawrence v. Belger, 31 Ohio St., 175. But see Vance v. Johnson, 10 Humph., 214. 3 See Minn. B. S., (1878) 751, Sec. 279 THE SEARCH FOE LIENS AND INCUMBRANCES. § 153 Search must be made in the office of the sheriff of the «ounty to ascertain whether there are in his hands any writs of execution against the vendor or which may constitute a lien upon the lands in question. In some of the States, sheriffs are required to keep a foreign execution docket on which executions issued from other counties are entered and become a lien from the date pf such entry, in other States they are a lien from the date they are received by the sheriff, and in others from the date of the levy only.^ When judgments or executions are found they should be ■set out in the abstract, giving the name of the court, the term at which judgment was rendered, the style of the cause and the amount of the judgment, the amount of interest and date from which it is to be computed, and the amount of the costs stated separately. Also the date of the execu- tion and when returnable. § 152. Forfeited Becogulzances. — The acknowledge- ment of a debt before the judge- of a court of record, per- fected by enrolment, is equivalent to a judgment, and gener- ally all recognizances when properly filed, with a certified order of the court forfeiting the same, become liens upon the real estate of the obligors the same as other judgments. Search must, therefore, be made in the proper offices for such incumbrances. § 153. Attacliiuents and other Judicial Proceedings. — Attachment is a common method of creating a lien upon the property of nonresidents and persons who seek to avoid the payment of their debts. To become a lien upon real estate such proceedings must, ordinarily, be commenced in a court of record ; but in some of the states attachments may be is- sued on land by justices of the peace and remain a lien upon the same for a specified time.^ Generally, attachments may ^Ante, § 94. ' In Pennsylvania, an attachment on land, before a justice of the peace, remains a lien for sixty days from the date when an execution might liave been sued out. If the cause be appealed, then sixty days after final judgment. Brightly's Purd. Dig., 446. § 155 ABSTRACTS OF TITLE. be issued by courts of record to any county in the state, which become a lien upon real estate from the levy thereof. A search of the files and dockets of courts of record and of the sheriff's office will usually disclose any such lien or other judicial proceeding affecting the title under investiga- tion. § 154. Liis Pendens. — It is a general rule, independent of statutory provisions, that a suit is constructive notice of the rights sought to be enforced and a purchaser during the pendency of the suit is bound by the finding or decree. This applies, however, to those only who derive title to the subject matter from a party to the suit, after it commenced, and not to one who has a title paramount to the parties to the suit. Under some statutes, notice of the pen- dency of an action is required to be filed at the time of the filing of the complaint, and the suit is constructive notice only from the filing of the lis pendens as it is called. In some of the states such notice is required to be filed with the clerk of the court and in others it must be filed in the office of the recorder of deeds. The abstractor will of course be governed in his search by the provisions of the statute on the subject. § 155. Mechanic's Liens. — Under the statutes of most, if not all, of the States, mechanics, contractors and material men have a lien on the buildings erected and the land on which they are situated for their pay. Such lien is against the title of the person contracting ^ and cannot be enforced against the property of a third party in temporary use of another,^ nor against any mere conditional interest. The notice required to be given and other steps essential to the creation of such lien depend entirely upon the statute,, which must be consulted in reference to the search to be-, made for such incumbrances. iHickox V. Greenwood, 94 111., 266. 2 Tracy v. Rogers, 69 HI., 662. THE SEAECH TOR LIENS AND INCUMBRANCES. § 157 § 156. Vendor's Liens. — In several of the States a ven- dor has an equitable lien on the land sold for the purchase money. The lien exists against all the world, except bona fide purchasers without notice. A purchaser without no- tice of the lien, who has got the legal estate, and registered his deed, can hold the land discharged from the lien ; but if he had, before he paid his purchase money and obtained his conveyance, notice of the lien, the estate will be charged in his hands. As a general rule, every suspicious circum- stance which would put a cautious man upon his guard and suggest inquiry, will be deemed notice. It is, therefore, the duty of the examiner to follow up any inquiry thus sug- gested. In some of the States this lien has never been recognized, while in others it has been abolished by stat- ute. § 157. Decedent's Debts. — It is a general rule that the heir or devisee takes the estate subject to the ancestor's debts, but in some of the States if the land is sold bona fide before an action is brought, the heir or devisee, and not the purchaser, is liable to creditors for its value,^ while in others the debts remain a lien upon the estate for a certain number of years and unless administration is granted or an action commenced within that time the lien is discharged.^ In a majority of the States, perhaps, even though adminis- tration is pending, the debts must be proved up and allowed against the estate within the time limited by law or the or- der of the court, or they cease to be a lien. An exception to this rule exists in some of the States in favor of debts which constitute a specific lien upon certain real estate and debts that are not due and payable within that period. In Pennsylvania, for example, where the debt is not due within the time for which a lien is provided, a written statement of the indebtedness may be filed in the office of the prothono- ini. E. S., 743, § 12; Ky. Gen. Stat., 320, § 18; Wis. E. S., Sec. 3285. "SeeN. Y. Code Civil Procedure, §§ 2777,2778; Brightly's Purdi Dig., Pa., 422, § 88. § 160 ABSTEACTS OF TITLE. tary of the county where the real estate is situated, which will have the effect to extend the lien of such debt for five years after the same becomes due.^ §158. Iicgacies and Annuities. — Legacies charged upon lands form a lien upon the property and, therefore, where the title is derived under a will charging legacies upon the land devised, proof of payment, or that they have been re- leased should be required.^ Or if the land is charged with the payment of an annui- ty, its discharge must be proved in the same way as the re- lease of a legacy. "The period within which an annuity may be presumed satisfied must depend on the life for which it is granted. If it is fair to presume, in the natural course of things, that the annuitant is dead, the want of a certificate of burial cannot be considered as an insuperable objection to the title, but no case has occurred, in which such a presumption has been made in less than thirty years." ^ § 159. Trustees' Expenses. — It is a well established doc- trine in equity, that the expenses and disbursements of a trustee made in that capacity, are a lien on the trust prop- erty. The rule applies generally to agents, executors, guardians and all who act in the capacity of a trustee by regular appointment.* The subject, however, is regulated to a greater or less extent by statute in many of the States. § 160. Mortgages and Deeds of Trust in the nature of mortgages, are incumbrances of the first degree, and are usually abstracted in chief. This is perhaps the most eligi- ble method, though the circumstances will often render it unnecessary to do more than simply mention the incum- brance. Where mortgages have been satisfied and dis iBrightly's Purd. Dig., 422, § 88. ' Covantry on Conv. Ev. 267. *3/6id, 264. •"Hill on Trustees, 567. THE SEARCH FOR LIENS AND INCUMBRANCES. § 162 charged of record it is only necessary to refer to the in- strument very briefly, but the discharge should be abstracted at sufficient length to show whether the lien has been prop- erly discharged and the legal estate revested in the mort- gagor ; this is specially important where the common law doctrine of mortgages prevails. § 161. Leases. — A lease is an incumbrance upon the fee to the extent of the interest held under it. We have seen, in a former chapter, ^ that leases for a number of years, in some States, a greater and others a less number of years, are required to be in writing acknowledged and re- corded in the same manner as conveyances of the fee ; and the method of abstracting these instruments has also been discussed. The subject is adverted to here merely to sug- gest that leases are properly treated as incumbrances when considering the title to the fee, and should be so appended in the abstract. Whether a lease found of record which has expired by lapse of time, should be noticed in the ab- stract or not, will generally depend upon its having been renewed, or upon the covenants for renewal if the time has recently expired. Leases are to be abstracted briefly or at length, according as the circumstances and length of the term may indicate. The importance of making inquiry of the tenant, or party in possession, in reference to, his right or title in the premises, cannot be too thoroughly impressed upon the examiner, or the purchaser, if he assumes that re- sponsibility; since possession may operate as notice of rights not disclosed by the records. In order that the ten- ant or occupant may be estopped from setting up any claim, different from that disclosed, he should first be informed of the proposed purchase or other object in making such inquiry. § 162. Dower and Cnrtesy have both been discussed in a previous chapter j*^ but as they constitute a species of incum- ^Ante Ch. XV. 2 See Ante. § 133. (91 § 163 ABSTRACTS OF TITLE. brance upon the estate in fee it is thought proper to notice the subject briefly under this head. There are several modes by which the wife may be barred of her dower interest in the lands of her husband, varying in many respects in different States. In general, she may release her dower by joining in a deed with her husband, or be barred by accepting a provision in his will in lieu of dower, by a divorce a vinculo, by acts which estop her from setting up dower — as a statement to an innocent grantee that her dower had been extinguished — or by an assignment in bar. Tenancy by the curtesy may also be released by joining with the wife in a conveyance to a third person, or by a judgment of divorce. The estate has been abolished in many of the States, and other statutory provisions have been substituted in several of them to take the place of both dower and curtesy, with which abstractors will not fail to acquaint themselves. § 163. X^asements and Servitudes constitute another form of incumbrance upon the fee, which not unfrequently materially diminish the value of the estate. They are as various in character as the exigencies of domestic conven- ience or purposes to which buildings and land may be ap- plied. Some of those which attach to land as appurten- ances are enumerated in Bouvier's Law Dictionary, as fol- lows: "The right of pasture on other lands; of fishing in other waters ; of taking game on other land ; of way over other land; of taking wood, minerals, or other produce of the soil from other land ; of receiving air, light or heat from or over other land ; of receiving or discharging water over, or having support to buildings from other land; of going on other land to clear a mill stream or repair its banks, or draw water from a spring there, or to do some other act not involving ownership." That most common, per- haps, is the right of way, of a railroad or highway. The land or estate subject to any such rights is incumbered or reduced n value to the extent that the easement is burdensome. All THE SEARCH FOR LIENS AND INCUMBRANCES. § 165 easements must originate in a grant or agreement, express or implied, of the owner of the servient tenement. The evidence of their existence, by the common law, may be by proof of the agreement itself, or by prescription, requiring actual and uninterrupted enjoyment immemorially, or for upwards of twenty years, to the extent of the easement claimed, from which a grant is implied. An intimate knowledge of the situation of the property will generally acquaint one with the existence of any easement not disclosed by the records. § 164. — Miscellaneous Liens and Incumbrances. — A variety of Statutes have been enacted in different States providing for liens upon real estate for various public pur- poses, such as poor rates, highway rates, sewer rates, or for lighting or paving streets, water tax, mutual insurance notes, drainage and ditch laws, which are purely local, but will require to be searched for where any such laws exist. § 165. The Abstractor's Certificate. — Having completed his searches the last act of the abstractor is to attach his certifi- cate to the abstract, stating what it purports to contain. The form of such certificate does not appear to be material, un- less it is intended to limit the liability of the abstractor, in which case this intention should be clearly set forth. For example, if any of the searches have been omitted, or an inquiry suggested has not been followed up and the ab- stractor desires to avoid responsibility therefor, or if it is the intention to limit his liability generally for all mistakes and omissions, this fact must be so stated as to bring it to the notice of the person for whom the abstract is prepared. Courts proceed upon the theory that one who undertakes to examine a title and prepare an abstract for hire, undertakes to make a thorough and complete examination, unless he gives notice to the contrary.^ 1 Chase v. Hean^y, 70 HI., 268. § 168 ABSTRACTS OF TITLE. CHAPTER XVII. PERUSAL OP THE ABSTRACT. SECTION. 168. Preliminary Observations. 169. Duty of Counsel in Eespect to the Abstract. 170. The Kind and degree of Evidence Eequired by Conveyancers. 171. Direct and Primary Evidences of Title. 172. Secondary Evidence. 173. Presumptions. 174. Voluntary Affidavits. 175. Circumstances Suggesting Suspicion. 176. Analysis of the Abstract. 177. Summing up. 178. The Certificate of Opinion. § 168 Preliminary Observations. — In no part of the ordinary duties of a la-wyer is- there more responsibility than in the investigation of a title to real estate, with a view of certifying to its good character. Nothing short of experience will render a person competent to cope with all the little difficulties that may beset the inquiry as to the title being a good one, and this experience can be had only after the acquisition of a thorough knowledge of the law of real property. He must, in the course of his investiga- tion, meet and unravel the difficulties which arise, either from the doubtful construction of the words of some one or more of the instruments, the absence of evidence of certain facts, or the operation of some statute or rule of law, as well as pass upon the nature of the estate, or of the title deduced and the incumbrances by which it is affected. PERUSAL or THE ABSTRACT. § 169 In the present chapter, as in prsYious portions of this work, nothing further will be attempted than to present a few general rules, and to suggest some of the points to which attention is to be drawn in pursuit of the investiga- _ti.on. Every title must, to a great extent, depend upon its own circumstances, and it is beyond the reach of human ingenuity to suggest observations which would be applicable to every case, since there ever has been and ever will be an infinity of circumstances existing, as far as experience goes, for the first time. Nor could it be hoped, within a limited space, to point out any considerable portion of the numerous questions that have arisen and been decided touching the validity of titles to land. § 169. Duty of Counsel in Kespect to the Abstract. — According to the English practice, it is the duty of the solicitor for the purchaser, to compare the abstract with the original documents or evidences of title, for the purpose of ascertaining: 1. "That what has been abstracted is cor- rectly abstracted. 2. That what is omitted is clearly im- material. 3. That the documents are perfect as respects- execution, etc. 4. That there are no indorsed notices, nor any circumstances attending the mode of execution, attest- ation, etc., calculated to excite suspicion. "^ The import- ance of such comparison being made by counsel, where the services of a solicitor does not intervene, has been referred to in a former part of this work.^ Every part of every document ought to be read through, since notice of an in cumbrance is equally notice whether contained in one or another part of a deed. The verification of the abstract, however, will depend very much upon the local practice and the degree of confidence placed in the ability, fidelity and financial responsibility of the person preparing the same. In large cities it is the custom to accept abstracts made and duly certified by a reputable person or firm en- 1 Dart on Vendors, 381. 2 Ante, § 5. § 170 ABSTRACTS OF TITLE. gaged in that business, without such comparison; and, per- haps, where the abstract is presented to counsel by his client, with the request for an opinion upou the same, the counsellor would be justified in accepting it as presenting the true state of the title, without further question. But if there should be any reason to suspect that the abstract was prepared by an incompetent person, or that it was in- complete, or contained inaccuracies, it would be the duty of counsel to so inform his client, or to make the comparison above suggested. And in all cases where the abstract has been prepared by the solicitor of the grantor, the necessity for such comparison will exist, as he would, perhaps, not be held responsible to the purchaser for any inaccuracy or defect in the abstract. ^ Having satisfied himself as to the reliability of the ab- stract and that it has been carried back far enough, or that the starting point is safe and satisfactory, the next duty of counsel relates to the perusal of its contents. Here, as we have observed, the whole learning of the law of real property is involved. The inquiry relating first to the character of the evidence adducible in support of the claim of title. § 170. The kind and degree of evidence to be required. In respect to the evidence required to support a title, coun- sel will of course be governed by the circumstances of the particular case, and no definite rules can be fixed for his guidance. It is observed by Mr. Coventry that the evi- dence required by a conveyancer is not that strict minute proof which raises a conviction little short of actual obser- vation, but merely such as affords reasonable belief that the requisite evidence exists and can be procured when wanted.^ The proofs required in all cases out of court are, or ought to be, such as will carry conviction to every rea- sonable mind, and if they do not amount to that, they ought undoubtedly to be rejected.^ It may be stated as a ^ See in/Vo, § 185. 2 Coventry on Conv. Ev., 3. 3 Lee on Abst. Tit., 267, 268. PERUSAL OF THE ABSTEACT. § 171 rule of univeraal application, that the best evidence ought to be adduced of which the nature of the circumstances admit, and failing that the next best evidence is to be sought out. Evidence admitted by the courts being the strictest kind, it follows, that whatever is allowed to be evidence by the courts is a fortiori, to be admitted in con- veyancing matters out of court. ^ § 171. The direct and primary evidences of title usual- ly comprise the originals of all patents, deeds, wills, court rolls and other records and documents affecting the title. But cases frequently arise in which the evidence required upon an abstract is of a peculiar nature. It is not neces- sary that there should always be deeds or wills produced aif ecting the property in question during the period for which the title is required to be shown. Possession of itself is a sufficient title when shown to have been held under the proper conditions and undisturbed for the requi- site number of years. ^ A title may also depend upon de- scent, but such titles are always to be viewed with great jealousy.^ "Indeed it is said to be ranked by conveyancers among the worst titles ; and if it depends upon several suc- cessive descents, it is scarcely marketable." ^ In questions of pedigree the conveyancer requires the same proof of re- iLee on At)st. Tit., 268. 2 '-To force such a title on a purcliaser, it is not sufficient merely to show possession by the vendor for twenty years., If the vendor relies on possession of twenty years as giving him a good title, he must show who the person is that, but for this possession, would be the owner in fee simple in possession; and that twenty years possession barred his right; unless the possession has extended to such a length of time as would bax all persons. Taylor on Titles, 53. It must also be borne in mind that possession for the period fixed by the statute will bar only the party en- titled to the immediate possession. It will not operate to defeat the right of a person entitled to a reversion until the expiration of time lim- ited from the date at which the reversioner acquired the right of entry. Hays on Conv., 253. 8 Atkinson on Titles, 374. « Taylor on Titles, 61. § 172 ABSTKACTS OF TITLE. lationship, deaths and intestacies as courts of justice.^ The object is to show that the claimant is next heir to the per- son last seized.^ § 172. Secondary evidence. — Exemplified copies of the records of patents, deeds, wills and other records and doc- uments, in keeping of any officer of the State or General goyernment, are secondary evidence of the highest charac- ter, and are usually accepted by the conveyancer without question, unless there is some special reason for extraordi- nary caution. To the admission of secondary evidence in court, proof of the loss or destruction of the original docu- ment is a necessary preliminary; but in many instances statutes have been enacted making certified copies of cer- tain records and documents admissible as direct evidence.^ "With respect to copies generally, it is to be observed that a copy of a copy is not evidence, for the courts require the best evidence the nature of the thing admits, and the fur- ther off anything lies from the first original truth, the weaker must be the evidence; besides there must be a chasm in the proof ; for it cannot appear that the first was a true copy."* The foregoing observation cannot be ap- plied to copies of official records, which are themselves copies of the original documents, where the law makes such records, or copies thereof, original evidence; but the gen- eral rule of evidence as above stated is correct. Under the English practice, memorials are frequently re- sorted to, as a means of furnishing secondary evidence of the contents of lost instruments, but the doctrines respect- ing them have no application to the laws of this country. The registry laws so universally adopted in the United ' Covantiy on Conv. Ev., 274. 2 See, as to the subject generally, ante Ch. XIV. 3 See Barton v. Murrain, 27 Mo., 235, where it was held that an exem- plification of a patent, certified by the Commissioner of the General Land office, may be received in evidence without proof of loss of the original. < Taylor on Titles, 136. PERUSAL OF THE ABSTRACT. § 172 States have limited the instances in which there would be any occasion to resort to memorials, to the cases in which deeds have been lost before being recorded, or in which the records have been destroyed. In some of the States, statutes have been enacted providing a method of perpetuating testimony as to the existence and destruction of such records and documents. °In all such cases possession of the prenaises under the alleged grant will furnish important corroborative evidence in establishing the same, and the longer the possession has continued the greater the presumption in favor of the grant, perhaps. But there seems to be some danger in allowing mere length of possessi6n and dealing with the property to be suificient corroborative evidence where the proof as to the estate or intei-est conveyed is not clear and satisfactory. For exam- ple, the tenant of a term or for life might after destroying the deed, convey in fee, and the property might pass through various hands during the continuance of his estate and there might thus be possession and dealing with the property for a long term of years, consistent with the right of possession and with a conveyance in fee. The person entitled in reversion is not ppposed to inquire until his right has accrued, and when it does he may have to contend against evidence offered of 'a grant in fee and possession and dealing, said to be consistent with it, but he will not be barred by such possession, providing he can establish the true character of the estate under which it was held. Recitals contained in deeds, decrees and other instru- ments, furnish very important secondary evidence some- times. "The rule generally acted upon with respect to recitals," says Mr. Preston, ^ "has been, that statements contained in deeds thirty years old or upwards may be con- sidered as good evidence," and where the facts recited are not very important, a purchaser may be satisfied with such recitals without other evidence, even if contained in deeds 1 3 Prest. Abst. Tit. 8. § 173 ABSTRACTS OF TITLE. of more recent date. But where the facts are very im- portant, a purchaser will not rely upon the recitals even of an old deed, particularly if better proof aliunde can be ob- tained.i Much, therefore, depends upon the nature of the recital as well as upon its antiquity. It is obserred by Mr. Lee that recitals as to contents of deeds are more to be re- lied upon than recitals as to pedigrees. Parties may them- selves, without any fraudulent intention, mistake a pedi- gree, whereas a deed can seldom be incorrectly recited, unless through fraud or otherwise intentionally, therefore the former requires to be more narrowly searched into.^ And recitals in a deed prepared by direction of a Court of Equity or Probate Court and approved by a judge or mas- ter, are more to be relied on than other deeds, in conse- quence of the strictness with which facts and statements are required to be verified.^ By statute in some of the States such recitals have been made prima facie evidence of the facts recited. But generally speaking, recitals can not alone be taken as evidence against strangers or others not parties to the deed containing such recitals. They are alwavs taken as admissions of those who are parties to the deed and interested in the property ; yet there ought to be some further proof to establish entirely the execution and validity of a recited deed. A "bare recital of the deed, it has been said, is not evidence, but taken in connection with other facts which corroborate the recital, or where there is other evidence that the instrument recited existed, then the recital may be taken as evidence both of its existence and execution.* § 173. Presumptions. — In the absence of any direct evi- dence,presumptions may sometimes be resorted to, particu- larly where the importance of the fact is inconsiderable, or the circumstances exist which raise a presumption in law. 1 Lee on Abst. Tit. 360, 361. ^Leeon Abst. Tit. 361. 3 Ihid., 363. * Burnet v. Lyncb, 5 B. & 0. 601. PEKUSAL OF THE ABSTRACT. § 173 Some presumptions are founded on lapse of time, others on common experience. "In the case of births and marriages many facts may be adduced in support of the presumption of one from circum- stances connected with the other; for instance, the birth or baptism of a child being proved gives much weight to the presumption of marriage between the parties whose child it is stated to be, if the evidence is derived from the common register, where it is stated to be the child of par- ticular parents named as usually in the books. Proof of a marriage prior to the time of the birth of a child affords ground for presuming that such child is the issue of the parties so married, if the mother be known; and where a birth is proved a short time only after the marriage, the probability that it is eldest child of the marriage amounts almost to certainty, but the possibility of there being a twin birth in such a case may prevent absolute certainty. Where a child is born several years after the marriage it is more difficult to prove an eldest or only child. "^ "In regard to marriages, there are many grounds for raising a presumption of marriage in the absence of direct eviiience of the fact. The parties having always lived together as man and wife, and having in common reputa- tion been received by their friends as such ; children being described as children of A and B his wife; their so styling themselves in wills or deeds ; and other matters less impor- tant than these, if ancient in date, have been allowed to raise the presumption of marriage in common ca,ses.^ It has been found by common experience to be a neces- sary presumption that a person of the same name and con- veying the same interest as that limited to a person pre- viously mentioned, is the same person: unless circum- stances exist which render this improbable, or at least, have that tendency. A great interval existing between any iLee on Abst. Tit., 464. 2Tbid, 465. § 173 ABSTRACTS OF TITLE. two deeds, or the fact that the last deed was not recorded for some years after it purports to have been executed, are circumstances which suggest the propriety of calling for evidence of identity. And where a deed was executed in a foreign country, during the progress of an investigation for quieting title, satisfactory evidence of identity and execu- tion were required.^ Sealing also, though of the essence of the deed will be presumed, and that not only in cases where the deed is lost or torn, but also where no mark ar impression on the parchment or paper appears, provided the attestation no tice the solemnity of sealing to have been complied with. The reason is, thatto constitute sealing the use of wax is not essential ; it is sufficient if the seal be impressed by the party on the plain parchment or paper with an mtent to seal, without making or leaving any impression or indenta- tion.^ In like manner the delivery of a deed will be presumed, if found in the grantee's possession. But presumptions, it is to be remembered, may always be controlled by evi- dence.^ The law never makes a presumption that acts are wrong- ly done, or that fraud has been committed, unless there is good ground for believing such to be the fact ; presump- tions, if made where nothing is known, are always that things are rightly done, or in favor of order and regular- ity.* In accordance with this presumption it is not usual for counsel to require proof of the genuineness of the in- struments, or of the signatures or attestations attached to them, nor of the actual payment of purchase money recited to have been paid, nor as to the competency or sanity of 1 Taylor on Titles, 137. 2 Coventry onConv.Ev., 21; Martindale on Conv., 166 and cases cited. 2 Martindale on Conv., 184. Lee on Abst. Tit., 465; Coventry on Conv. Ev., 319. PERUSAL OF THE ABSTRACT. § 173 any of the parties, unless there are circumstances suggest- ing doubt on the subject. In which case, however, it is his duty to insist upon proof of such character and degree as common discretion may dictate. The question determining his action in the matter would be, is there such a degree of uncertainty apparent upon the transaction, taking into con- sideration possible as well as probable circumstance, as would naturally raise suspicion in the mind of an unpreju- diced person. If that degree of doubt and suspicion does attach, it devolves upon the vendor to clear it up. In the absence of all proof or knowledge of facts there can be no presumption except what the law itself points out. In some cases an inference may be made from noth- ing being known to the contrary for a series of years. In any case of alleged quiet possession or of no claim made, there can be no presumption where there is no knowledge, except such as can be drawn from acquiescence or apparent acquiescence in the title of the property in possession; thus where no adverse claim has been heard of for a length of time, quiet possession may be inferred or presumed.^ Where a person has not been heard of for a number of years, it is the practice in courts of law to presume his death after seven years, but a seven years absence without tidings is not sufficient to raise this presumption with con- veyancers.^ Every case must depend upon its own partic- ular circumstances, and no certain period can be fixed which will raise the presumption. Scarcely any length of time will be sufficient to compel an unwilling purchaser to take a title depending on such a presumption of death, un- less made with reference to the age of the party said to be dead; and if the party whose death is asserted was, when last heard of, very young, the period must be that beyond 1 Lee on Abst. Tit., 466. 2 Dart on Vendors, 315; Taylor on Titles, 142. § 175 ABSTRACTS OF TITLE. which human life does not commooly extend. If the pre- sumption to be made is death without issue, it is doubtful if a court would, as against a purchaser, ever make a pre- sumption within the period of sixty years. ^ § 174. Voluntary Affidavits. — "Voluntary affidavits are frequently resorted to, and required by conveyancers under a choice of difficulties, in support of facts and averments, when more direct proof cannot be obtained.^ These docu- ments, though possessing no legal validity, are often all the evidence that can be adduced; and as it were by gen- eral consent the profession adopt them as evidence upon titles. 3 "As legal evidence such affidavits are clearly inadmissi- ble; they are purely voluntary, and not being made in court in any cause, they will not sustain an action for per- jury; then they are made expressly to support some point, end are, therefore, on the face of them, not of that pure and disinterested character which is expected from unex- ceptionable evidence ; and they frequently contain nothing more than hearsay evidence ; yet the conveyancer admits this testimony as corroborative evidence of general reputa- tion and concurrent possession. "It should always appear on the face of the affidavit that the deponent is likely to be acquainted with the facts and reasonable ground for his belief should be stated.* Affidavits are seldom resorted to in this country in sup- port of titles, though circumstances occasionally arise in which no better evidence can be adduced. § 175. Circumstances Suggesting Suspicion. — Attention has heretofore been called to the fact that it is impossible. 1 Lee on Abst. Tit., 466. 2 Covantry on Conv. Ev., 319. s Lee on Abst. Tit., 215; Hobback on Sue, 66. * Taylor on Titles, 136 ; Covantry on Conv. Ev. . 319 ; PERUSAL OF THE ABSTRACT. § 175 in many cases, that the records should be an entirely safe reliance, because many things that may effect a title cannot be shown by them, such as heirship, dower and curtesy, pos- session of the premises, or the disability of a grantor or fraud of the grantee which may render any of the instru- ments in the chain of title void or of no effect. ^ If such extrinsic inquiries have not been made and set out in the abstract, it is the duty of counsel to call for infor- mation in respect to the same, as often as the circumstances may suggest any such inquiry. It is always important to inquire into the possession of the premises, and if the land is found to be unoccupied or to have been recently taken possession of, after having lain dormant for a number of years, this fact will put the purchaser upon his guard — par- ticularly if the taxes have not been paid regularly or a tax title has been acquired upon the property during that time — as unoccupied lands which have not been looked after by the owner are more likely to be selected for fraudulent conveyances, because the probabilities of concealing the fraud will be greater. If one or more deeds of ancient date have been recently placed on record and are not pro- duced, or if the parties grantor or grantee were non-resi- dents, or their place of residence indefinitely described, or the immediate grantor is a stranger in the community, or is represented by an attorney in fact, these circumstances will suggest additional caution. The death or disability of the owner and subsequent registration of a deed from him is a cir- cumstance suggesting suspicion also. In a paper read before the American Bar Association on "The Recording Laws of the United States" Judge Cooley said: "In looking for land to appropriate, the land robber will be likely to come across cases in which, on the death of the owner, it is manifest the knowledge of his ownership has not immediately been brought home to the heirs. Such instances generally hap- pen in the case of non-residents. A large proportion of 1 Ante, ch. IV. § 175 ABSTRACTS OF TITLE. the community never make inventory of their property, and if they attend in person to their own affairs, they may have lands abroad of which their families have but faint information, and sometimes none at all. Very many of the tax titles in the western States originate in the fact that for a time after the death of the owner the lands are not looked after, either for lack of information on the part of those interested, or because the family are infants and women, and their affairs pass to the hands of some one who was a stranger to the business of the ancestor, and only slowly possesses himself of a knowledge of the facts. Dur- ing this period there is opportunity for a fraudulent har- vest, and when the representatives of the deceased at last inquire out the lands, they find that apparently the ances- tor disposed of them in his lifetime, and the inquiry goes no further. * * * "To carry on frauds on a large scale, confederates are required, and several transfers may be desirable. And the fraudulent dealings will by no means be confined to the cases of death or disability of the owner. Those are gen- erally the safer cases; but many non-resident owners of land in the western States have never visited them, and if false deeds were placed upon record only a fortunate acci- dent would be likely to acquaint them with the fact. "Fraudulent deeds are sometimes obtained by a species of false personation, which all parties concerned appear to think may be indulged in without danger. For example, Mr. William Jones, of Wisconsin, many years since pur- chased of the United States a certain quarter section of land, there is no conveyance of it by him of record. An- other Mr. William Jones, of Milwaukee, receives a letter from a land agent, enclosing ten dollars and a quit claim of this land, which he is requested to execute. He does not perceive what good the quit claim can do any one ; but, confident it cannot hurt him to consent, he gives the con- veyance and accepts the money. Now the deed of quit claim in common use in the western States is really a deed PERUSAL OF THE ABSTRACT. § 175 of bargain and sales, and just as effectual in transferring the title as the common deed with covenants. And in sev- eral States it has been decided that no suspicion attaches to a title by reason of its having been transferred by a quit claim. ^ The land agent, therefore, soon disposes of the land to a hona fide purchaser, whose title is apparently good and may never be disproved. " One other fraud, of which cases have come before the courts, may be mentioned. Very generally in this country it is now provided that a homestead shall only be conveyed by the joint deed of a husband and wife. A husband, whose wife by misconduct has been driven from his home, has been known to procure an abandoned woman to per- sonate her for the purposes of this conveyance; and when, after the husband's death, she attempted to claim home- stead rights, this deed, certified in due form by a public officer to have been executed by herself, confronted her. In case she had died before the husband, and the minor children had claimed the homestead, the fraud would have been likely to be completely effectual." Alterations and interlineations in a deed, although they may excite suspicion as to the correctness of the instru- ment, cannot alone be ground for invalidating it, but counsel scrutinize such instruments with special care, and where there is anything in the appearance of the deed, or the nature of the interlineation, to confirm suspicion, proof should be required, that the interlineation was made before the delivery, or that the instrument has been redelivered sub sequent to such alteration, so as to take effect as a new deed A signature by a marksman also calls for special care on the part of examining counsel. And where deeds have been executed by power of attor- 1 See McOonnell v. Eeed, 4 Scam. 117; Butterfield v. Smith, 11 111. 485; Pettingill v. Devin, 35 Iowa, 344; Burns v. Berry, 42 Mich. 176; Morris V. Daniels, 35 Ohio (N. S.) , 406 ; Taylor v. Harrison, 47 Texas, 454. But see also Marshall v. Roberts, 18 Minn. 405 ; Hutchinson v. Harttmann, 16 Kan. 133. (10) § 176 ABSTRACTS OP TITLE. ney it is important to ascertain that the principal was alive when the deed was executed, as the power would be re- yoked by his death. § 176. Analysis of the Abstract. — Directions as to the mode of proceeding in the perusal of an abstract can be of little service, inasmuch as different minds employ different methods, and the practitioner will adopt those best suited to his professional habits, independent of any set rules. A few general observations on this subject, however, can not be out of place in a work like the present. It is presumed that every person who habitually peruses abstracts keeps some memoranda of their contents. An abstract book is desirable, not only as an assistance in the perusal, but also for the purpose of reference on future occasions. "Counsel should not incumber himself with any unnecessary details, still he may save himself much unnecessary labor by a little method, and by writing his opinion with his notes in a book as he proceeds, reserving, if necessary, any important point for subsequent considera- tion. "^ It is suggested by Mr. Sugden that the perusal should, if the length of the abstract will permit of it, be finished at one sitting, and that the abstract should be perused but once, and that once effectually. These re- marks, we conclude, are intended to apply only after a preliminary survey has been made of the title. We appre- hend that most persons will find it less laborious and more conducive to a thorough comprehension of the true state of the title, to first make a general survey, or skeleton analysis of the contents of the abstract, embracing the names of the parties to each transfer, and to trace the description of the parcels through each successive step, without the mind be- ing distracted with other inquiries. If no break in the title is thus disclosed, a critical examination of each link in the chain may then be taken up and disposed of seriatim, noting on the analysis any defect or matter upon which further evidence or information is desired. The points to » 2 Sugd. on Vendors (Am. Ed.) 10. PERUSAL OF THE ABSTRACT. § 177 which attention is to be drawn in such examination have been discussed under the heads of the several modes of transfer respectively. § 177. In Summing up, the nature of the contract be- tween the parties will of course be considered, as conditions of sale, or special agreements under which a purchase is made, often contain very important stipulations, materially varying the rights of purchasers in regard to matters of title. In respect to the contract attention is to be directed, 1. To the lands which are purchased. 2. To the degree of interest which the purchaser is to acquire. 3. Whether he agrees to accept the title without the production of any of the instruments or proof of any fact supporting the title, and 4. Whether he is to take the title subject to any in- cumbrance or other circumstance affecting the value or subsequent enjoyment of the estate purchased. There is no point of more practical importance than identity of parcels, to which we have before referred. Parcels are oftimes so generally stated at the commence- ment of an abstract, and many of the descriptions com- prised in the deeds themselves are so vague and indefinite, that a vendor himself may occasionally be deceived as to his own property, and be quite unable, by authenticated evi- dence, to make out a clear statement of what is, and what is not comprised in his title. Under such circumstances some attention is required to see that the regular chain is kept up ; and care is particularly required where there are undivided interests or irregular sub-divisions. Sometimes plats of premises may be resorted to with great advantage. The degree of interest which can be obtained in the land is frequently one of the most difficult points to determine. It will sometimes be necessary to decide whether a person has a legal or equitable estate ; whether an interest is an equitable estate, or merely a power or authority; a vested or contingent remainder, or an executory devise ; whether he be a tenant for life or in fee ; whether he be a joint ' tenant or tenant by entirety. So it is frequently necessary § 177 ABSTRACTS OF TITLE. to decide whether an estate which existed has been discon- tinued or turned into a right of entry ; or whether an es- tate has been merged into an estate of higher degree. The relative character of the parties and their competen- cy to have carried on the title by means of the documents abstracted must also be considered. The mind should re- volve upon the situation and character of the grantors, that it may form correct conclusions whether the various owners were invested with the titles which they purport to convey and were legally competent to convey the same. It frequently becomes necessary to consider whether doc- uments which cannot from some informality operate as they were intended, may not still take effect in some other mode, so as to meet the wishes and intention of the parties and support the title as intended to be deduced. A release may operate as a grant, or a grant as a release. An assign- ment may be a lease or under lease. ^ So a charge affecting land may sometimes be created without words expressive of a grant. Thus, a covenant or reservation may amount to a grant and a covenant to pay a certain sum of money out of the land may amount to a mortgage ; or an instrument in the form of a deed may operate only as a testament, as where a voluntary settle- ment is made, and the settler reserves to himself a life interest and a power of revocation, or never parts with the deed.^ Questions involving the doctrine of notice, both actual and constructive, constantly arise on abstracts of titles also, and the law makes it imperative upon the purchaser to follow up any inquiry suggested, by charging him with the knowledge to which such an inquiry would have led. In order to deduce a perfect title the abstract should show a deduction of the title to the legal estate; that the 1 Lee on Abst. Tit. 268. 2 Ibid, 268, 269. PERUSAL OF THE ABSTRACT. § 177 legal estate is free from any equities affecting it; that all the particular estates are either determined or conveyed to the vendor and no reversion or remainder is outstanding ; and that there are no incumbrances. It is to be observed, hovpever, that a title may be perfect, so far as not to be open to a successful claim by a third party, and yet at the same time not be supported by legal evidence. Moreover, the question to be determined by counsel is not always whether the title disclosed by the abstract is perfect, or whether it is absolutely free from all chances of eviction or adverse claims, but frequently he will be called upon to decide whether it is such a title as the purchaser, under the terms of his purchase, can be fsompelled to accept, or whether the title is doubtful to such a degree as to render the purchase inexpedient, where the object is speculation or the acquisition of property more or less desirablfe at the price at which it is offered. In the latter case the question will be determined, of course, by the circumstances of the particular case. But whether slight defects are of sufficient importance to render the title doubtful and unmarketable to the degree that it cannot be forced upon an unwilling purchaser will afford abundant occasion for research. ^ In the absence of stipulations to the contrary, a purchaser is entitled to demand such a title as will enable him not only to hold the land but to hold it in peace, and if he wishes to sell it, to be reasonably sure that no flaw or doubt will arise to disturb its marketable value. ^ "Whenever the abstract fails to set forth all the facts ma- terial to the title, or apparent discrepancies exist which are unexplained, counsel will, of course, call for further infor- mation until he is satisfied that he has the true state of the title before hitA, as fully as may be practicable. TheEng- 1 A collection of cases in whicli defects have been held sufficient to render titles unmarketable will be found in a note to Cornell v. Andrews, 15 C. L. J. 8. " Cornell v. Andrews, supra. § 178 ABSTRACTS OP TITLE. lish practice of making formal requisitions upon the solic- itor of the vendor in such cases, has not been generally adopted in this country, but may sometimes be resorted to with advantage. § 178. The Certificate of Opinion. — In certifying his opinion upon an abstract, counsel should avoid directing at- tention to any mere technical irregularity not affecting the title, while on the other hand, he should not fail to point ■ out any substantial defect or possible contingency upon which a serious question might arise. The extreme caution of some members of the profession not unfrequently leads to the suggestion of numerous objections which are practi- cally of no consequence and merely create confusion. The client is as much at sea after receiving an elaborate opinion as he was before. But while the opinion, and not the pro- cess by which it is reached, is the object sought, yet should there be any grave doubt or possibility that the title might prove defective, the client has a right to know the exact state of the facts or circumstances and the law bearing upon them, and no counsellor possessed of ordinary pru- dence will fail to set forth in his opinion the ground of any such doubt and the contingency upon which it depends. And where any apparent defect has been cured by lapse of time, or by some statute, or otherwise, the fact should be noted in order to show that the question has received due consideration. A form will be found in the appendix. LIABILITY or EXAMINEES OF TITLES. § 181 CHAPTER XVIII. LIABILITY OF EXAMINEES OF TITLES. SECTION : 181. Nature of the Liability. 182. What will Constitute Actionable Negligence. 183. Liability of Officers making Official Searches . 184. Liability of an Attorney for Defective Advice. 185. To whom the Liability Extends. 186. Actual Damage must be shown to support an Action. § 181. Nature of the Ijialjility. — The liability for want of skill, or ordinary care and diligence, of persons who en- gage in the business of searching records, examining titles and preparing abstracts, for compensation, is well estab- lished.^ But as to the nature of the liability thus assumed the authorities have not been altogether in harmony. It appears to be settled, however, that the contract is not one of indemnity, but merely an undertaking that he will faith- fully and skillfully perform his work. The foundation of an action of damages for ar breach thereof, is the implied promise to perform with care, diligence and sufficient skill, the duty undertaken for the compensation agreed upon.^ 1 Story on Bailm. sec. 431; "Wells on Attys. 285; Wharton on Neg. 749; Sher. and Ked. on Neg. 211. 2 Dodd V. Williams, 3 Mo. App. 278. The cause of action arises, if at all, when the certificate of title is delivered, and the statute of limita- tion commences to run from that date. Kankin v. Sheaffer, 4 Mo. App. 108. § 182 ABSTRACTS OF TITLE. In the case below cited ^ it would seem from the language employed by the court that the contract was regarded as one of indemnity. But in a later case the same court dis- tinctly disaffirms that doctrine.^ § 182. What will constitute actionable negligence. — It has been held that where a party undertakes for a valuable consideration to furnish another with an abstract of title, or statement of the conveyances and incumbrances affecting a tract of land, and incorrectly reports the quantity of land pre- viously conveyed, he will be liable to respond in damages to the party who, relying upon such information, purchases the land.^ So where a party employed to examine the records and make an abstract of the title to certain real estate, omitted to note the fact of a judgment and sale of the land for taxes, of which the purchaser was ignorant until the time of redeeming had expired, whereby he was caused to pay out money to remove the cloud upon his title, it was held that the party making the abstract was liable in damages to the purchaser for the sum so paid by him to remove the cloud.* In defense to the above, it was contended that the evidence failed to show that at the time the search was made the judgment was of record ; but the court held that, in the absence of proof to the contrary, it would be pre- sumed the officers of the court did their duty, and prompt- ly made a record of the judgment and sale. It was also contended that it did not appear from the evidence that the 1 Page V. Trutch (U. S.,C. C. D. Oregon), 8 Chicago Leg. News, 385. "The certificate is not to he considered a warranty against every frivolous and speculative question which the dishonesty of the dehtor or the ingenuity of counsel may interpose against the enforcement of the security ; but I think it ought to be held as a warranty or representa- tion, not only that the mortgage would be found or held to be valid at the end of a protracted and expensive litigation, but that there was no palpable grave doubt, or serious question concerning its validity." 2 The Dundee Etc. Co. v. Hughes, 18 C. L. J. 470. 3 Clark V. Mai'shall, 34 Mo. 429. * Chase v. Heaney, 70 HI. 268. LIABILITY OF EXAMINEES OF TITLES. § 183 appellants agreed to furnish a complete abstract of all that appeared upon the records relating to and in any way af- fecting the title to the property. To which Scofield, J., in delivering the opinion of the court, says: "The evi- dence shows that the appellants held themselves out to the public as being engaged in the business of searching the public records, and making abstracts of titles for compen- sation ; that appellee requested them to make an abstract of the title to his property, and paid them the compensa- tion which they charged therefor, and this is all that was necessary for the purpose of the present suit. Nor do we consider that it was competent for the appellants to limit their liability by an obscure clause in their certificate ap- pended to the abstract, without especially calling the ap- pellee's attention to it. They undertook to furnish him an abstract of what appeared upon the public records affecting the title to his property, and he was authorized to rely upon their competency and fidelity in this respect. When, therefore, they discovered that they could not furnish him with a complete and reliable abstract, it was their duty to notify him of the fact, so that he might apply elsewhere." § 183. Liability of oflfieers making official searches. — In some of the States it is the practice for the examiner, after having ascertained the chain of title by inspection of the records, to direct written requisitions to the the clerks of the various offices for searches for incum- brances or hens of record that may affect the property. In large cities this method is rendered necessary, or at least convenient, in order to avoid the throng of applicants which would otherwise crowd the offices, and also to pre- vent the subjection of the records to the carelessness, or fraudulent designs, of the searchers. In a few of the States it is made the duty of recording officers to search their records, upon application, and give certificates as to the chain of title to any specific real estate therefrom . The liability of all such officers is either fixed by statute or is established under the general law of negligence. They § 183 ABSTRACTS OF TITLE. are also liable for the acts or omissions of those whom they delegate to do the work.^ Thus, the plaintiff, intending to purchase certain real estate in the city of Brooklin, em- ployed the defendant to search for taxes and assessments upon the premises. The defendant afterwards delivered to him two returns, one being a search for taxes, certified by the defendant, and the other a search for assessments, certified by a third person, not employed by the plaintiff, and received the usual fees for both searches, with an ad- ditional sum for expediting them. The plaintiff completed his purchase, on the faith of these returns, receiving a deed containing a covenant against assessments and incum- brances. An assessment upon the property, for street im- provements, not disclosed by the search, was afterwards discovered and paid by the plaintiff. It was in the. name of one who owned the property when the proceedings were commenced, but not the owner when the assessment was confirmed or the search was made. There was no evidence that the commissioners were notified of the change of own- ership, nor was there any evidence as to the responsibility of the plaintiff's grantor. The court held that the evidence authorized the jury in finding the defendant responsible for negligence in the search for assessments ; that the assess- ment paid by the plaintiff was valid, and a lien at the time it was paid ; and that the covenants in the plaintiffs deed furnished no defense, the burden being on the defendant to show, and he had failed to show, that they had preserved, or were available to preserve the plaintiff from damages or loss.^ In Pennsylvania it is a part of the duty of a pro- thonotary to make searches and give certificates of the liens of judgments, and his sureties are liable for. damages in- curred by a purchaser of the land, through a mistake in 1 Gerard's Titles to Eeal Estate, 757; Kimball v. Connolly, 33 How. 247. 2 Morange v. Mix, 44 N. Y. 315. LIABILITY OF EXAMINEES OF TITLES. § 184 the certificate of judgments ; and it is immaterial that there is no seal attached to it, and that there is no proof of pay- ment of the fee.^ So a recorder of deeds and mortgages giving a certificate that he has searched and could find no mortgage, and charging and receiving the fee allowed by law, is liable on his bond if it afterwards appears there was then a mortgage on record by which the party obtaining the search is prejudiced.^ But where the bond was merely "to deliver up the records and other writings belonging to said office, whole, safe and undefiled, to his successor there- in, according to law," the sureties were held not liable for false searches.^ The officer is not bound to make an exam- ination in the sense of passing upon the legal effect of the instrument, but merely to give information as to what is of record.* § 184. The liability of an attorney for defective advice as to titles is the same whether the adviser ranks as a con- veyancer or as counsel. If he assumes to act as counsel, and accepts a fee therefor, he will be responsible for his opinions. An attorney, however, is not bound to perfect accuracy or perfect care; ^ but if through his carelessness, or that of his clerk, loss ensues, he iu liable.® Thus, al- though relief may be given at the suit of a client against his solicitor for loss sustained by reason of negligence, yet where the loss was in respect to a matter of conduct as to which the advice of the solicitor was founded on the opin- ions of competent surveyors as to the value of the proper- > Zeigler v. Commonwealtla, 12 Pa. St. 227. 2 The securities are liable on the bond for all that the principal is. MoCarahan v. Commonwealth, 5 "W. & S. 21 ; Houseman v. Girard L. & B. Ass'n, 81 Pa. St. 256. ^ Commonwealth v. Harmer, 9 Phil. 90. * Lusk V. Carlen, 5 m. 395. ^ "He is not expected to anticipate rulings overturning the law as it existed when he gave his opinion. It is sufHcient if he accepts the law accepted by good professional men."' Weeks on Attorneys at Law, 52 ^ Weeks on Attorneys at Law, 520, and authorities cited. § 184 ABSTRACTS OF TITLE. ty, and those opinions submitted to tlie judgment of the client, the court dismissed the bill.^ But where the attorney of the vendee of an estate was employed to investigate the title thereto, and in taking the opinion of counsel thereon, omitted to mention certain in- struments materially affecting the title, and upon the faith of the opinion given — which would have been different had the instruments been mentioned — the attorney was held liable for the damage occasioned by his negligence.^ Where the client himself has made inquiry, and leads his attorney to believe that he is satisfied in reference to any matter of fact in question, whereby the attorney is lulled into a false feeling of security, he may be excused from a charge of negligence.^ But great caution should be exer- cised in relying upon representations made by a client, as the tendency among such is almost universally to depreci- ate the importance of thorough search, in order, in many instances, to lessen the fee of the attorney. The facts which are held sufiicient to absolve an attorney from the duties and liabilities imposed upon him, and the benefit of which is the object of his employer to secure, should be very strong, and will be for a jury to determine.* Where an attorney was employed by a client who proposed to ad- vance money on the security of a legacy given under a will to the borrower, it was held that the attorney was not jus- tifiable in relying upon a partial extract from the will fur- nished by his client, unless the latter agreed to take the 1 Chapman v. Chapman, 9 L. R. Eq. 276. 2 Ireson v. Pearman, 5 Dowl. & R. 687. 3 Waine v. Kempster, 1 F. & F. 695. * See State v. Leach, 6 Me. 58. Where the party applying to the recorder for a certificate as to incumbrances, stated that he knew about an attachment upon the land, that it did not amount to anjrthing, and that he desired the certificate for his own private use, whereby the re- corder was induced to give a clear certificate. Held^ misconduct, which properly subjected the officer to removal. LIABILITY OF BXHMINEKS OF TITLES. § 185 responsibility upon himself .1 In this case the court says: "The complaint is, that Mr. T did not go to the Commons and examine the will itself. I am of opinion, that by law it is the duty of an attorney not to content himself with a partial extract from a will, unless something pass between himself and his client which shows that it is unnecessary to consult the original." How far an attorney would be jus- tified in relying upon a partial or incomplete abstract fur- nished him by his client, without having recourse to the records and documents themselves, is a matter yet to be determined. § 185. To whom the liability extends. — The drift of au- thority seems to be in favor of the proposition that the lia- bility of an examiner of titles for want of skill or ordinary care and diligence is to the party who employs him alone, and that an action of damages cannot be sustained by a third party acting upon the faith of the certificate.^ But if fraud or collusion was shown to exist between the exam- iner and the person who employed him it would seem to be otherwise.^ And although the examiner is liable only to the person who employes him, he may, by affirming the correctness of his certificate to another, become liable for a mistake therein to such other person.^ In Savings Bank v. Ward, above cited, Mr. Chief Jus- tice Waite, with whom concurred Justices Swayne and Bradley, delivered a dissenting opinion, upon the ground that it appeared that the examiner gave his .client the cer- tificate in question with knowledge or reason to know that 1 WUson V. Tucker, 3 Stark. 154. ' Housman v. Girard Etc. Association, 81 Pa. St. 256; Commonwealth V. Harmer, 9Phila. 90; Hood v. Fahnstock, 8 Watts, 489; Brocken v. MUler, 4 W. & S. 110; Savings Bank v. Ward, 100 U. S. 195; The Dun- dee Etc. Co. V. Hughes, 18' C. L. J. 470 and note. But see Donaldson v. Haldone, 7 C. & F. 762; Page v. Trutch, 8. Chicago Leg. News, 385. 5 Housman v. Gerard Etc., 81 Pa. St. 256; Savings Bank v. Ward, 100 U. S. 195. ■• Sievers v. Commonwealth, 6 Week. Note. Cas. 17. § 186 ABSTRACTS OF TITLE. he intended to use it in a business transaction with a third person, as evidence of the facts contained therein, and was, therefore, Kable to each person for any loss resulting from a reliance on such certificate in any particular which might have been prevented by the exercise of ordinary care and skill on his part. This is a very important question touching the liability of examiners of titles where the practice is for the vendor to procure the abstract and cause the requisite searches to be made, inasmuch as the vendee is, ordinarily, the only one liable to be damnified by any mistake or inaccuracy in the abstract. § 186. Actual damage must be shown to support an ac- tion. — To sustain a claim of damages, it must appear that actual damages were sustained, by reason of the negligence complained of .^ If no money is advanced on the faith of the examiner's certificate; as where, at the time of the ex- amination, the property had already been bought and paid for, there can be no recovery for a failure to report an in- cumbrance ; nor where the judgment omitted in the certifi- cate is voluntarily paid and satisfied of record by the pur- chaser. The defendant may show that the person against whom the judgment was rendered, had, at the time the judgment was paid by the plaintiff in the damage suit, other unincumbered real estate in the county, sufficient to satisfy the judgment. So, where the existence of the lien omitted in the abstract can be material to the purchaser only by reason of an understanding between him and his grantor, of which the examiner was ignorant, and by rea- son of which a deed, appearing upon its face to be abso- lute, was held to be a mortgage, no action will lie.^ 1 Kimball v. Connolly, 42 K. Y. 57. ' Koberts v. Sterling, 4 Mo. App. 593. Note.— The substance of the foregoing chapter has heretofore been published as a magazine article in 15, Cent. L. J., 482. APPENDIX. FOEMS : Abstracts, as commonly prepared in different sections of the country, vary in many respects in point of form, and in some essential particu- lars. Thus, in some localities, an abstract is little more than an index to the conveyances ; in others the mere certificate of the examiner as to the state of the title is more frequently made to serve the purpose, while in others abstracts are more or less elaborately prepared, accord- ing to the local practice. The system of tenures under which lands are held in England and Canada, requires a somewhat different arrangement of the abstract from what is required in the United States, where the title to all lands is al- lodial. Under the English system abstracts are arranged more espec- ially with reference to the title of the individual, whereas in this coun- try the arrangement is with reference to the history of the ownership of the land. For the following illustration the writer is indebted to Messrs. Abbott, Tail and Abbott, advocates, of No. 11 Hospital street, Montreal. {CANADIAN FOMM.) ABSTRACT. OF THE TITLE OP JOHN SMITH. I.— DESCRIPTION. 7o the property situated on St. James street, in the Gity of Montreal, and known as number in that ABSTEACTS OF TITLE. street, being lot number on the official plan and in the Book of Reference for the Registration Division of Montreal West. n._BOUND ARIES. It is' of irregular form , and is bounded as follows: In front fifty feet by /St. James street, to the east one hundred and seven feet by the property of A., B.to the west one hundred and nine feet by the property of O. D., and in rear forty -nine feet by fortification Lane. in.— TENURE. The tenure is that of franc alen roturier. Ihe seigniorial dues have been commuted by deed before E. T. Wotary Public, passed on the day of 188 , be- tween William Brown the vendor of the said J. S . and the Ecclesiastics of the Seminary of Montreal. IV.— TITLE OF PRESENT OWNER. It is held by John Smith under the following deed : Deed of sale from William Brown before W. W. , N^otary Public, dated the 12th day of August, 1881, for §30,- 000, whereof § 10,000 were paid in cash at the making of the said deed, and the balance is due under the conditions of the deed, on or before the first of January, 1890. The property being hypothecated for the balance at 7 per cent, by bailleur defonds privilege. To this deed i7itervened Dame Margaret Wilson, wife of the said William Brown, who declared that she released and abandoned all the claim she might have to dower out of the said property. v.— TITLE OF THOSE HE REPRESENTS. His author held the same in the following manner : John Willis acquired the property Tnore than thirty years ago, namely in 1850, under his fathers will, executed in APPENDIX . Ill English form on the 10th of June, 1849; a probate where- of was granted by the Prothonotary of the Superior Court at Montreal on the 18th of November, 1849. The will left the usufruct of the property to John Willis for his life and a substitution in favor of his children, Richard and John Willis, then minors, the younger of whom came of age in 1865. In a suit of the Bank of Montrtal against John Willis, JVo. 1804 of the Hecords of the Superior Court at Mon- treal, this property was sold and adjudicated to William Brown on the 18th day of June, 1875. In 1876 by deed passed before X. Y. Notary Public, Richard and John Willis released to the said William Brown for considerations mentioned in the deed, all , their right title and interest in the said property . VI.— MATRIMONIAL RIGHTS. The property is affected in this respect in the following manner: John Smith ivas married on the 7th of April, 1872, by contract before W. W., Notary Public of date the 6th of April, 1872, it was stipulated the parties should be separate as to property, and that no rights of dower should attach. VII . —INCUMBRANCES . The certificate of the Register of the Registration Division of Montreal West, upon this lot, dated the 20th of June, 1885, shows the following two incumbrances: 1st. Bailleur defonds claim, §20,000 with interest at 7 per cent, due in 1890, reserved by deed of sale by William Brown to John Smith, before W. W., Notary Public, dated 12th day of August, 1881. 2d. Hypothec for §5,000 with interest at 6 per cent, in favor of the Montreal Loan and Mortgage Company, under deed of mortgage and hypothec before W. W. Notary Pub- lic, dated 13th of August, 1881. (11) IV ABSTRACTS OF TITLE. Very excellent authority can be found among practitioners, in tbis country, for the use of more abridged forms than are recommended in this work, in which the distinguishing features of the records and docu- ments are set forth, together with the particulars of the transfer; but without reference to the formal parts of any instrument, unless it be defective in form — Silence in regard to any formal requisite implies that the same is in due form of law. Such abstracts are usually confined also to matters appearing of record. The following is an example of this mode of preparing abstracts, and is the form commonly adopted in Chicago and many other portions of the country. (ABRIDGED FOBM.) EXAMIMTION OF TITLE. TO Block 1 and 2 of Johnson's Subdivision of the W. ^ OF THE S. W. % OF Section 12, Township 00, North, Eange 00, East of the 3d P. M. Samuel Scott. Doc. 2, 113. Receiver \ Receipt JVo. 200, dated June 13, 1 to I 1835. Filed December 14, 1835. Recorded in booh K, page 43. Acknoivledges receipt of §100-00 in full payment for the W. Y^ S. W. % Sec. 12, T. 00, R. 00, E. of 3d P. M. _ 80 acres. United States '\ Patent, dated October 1, 1839. 2. to > JVot recorded in CooTc County, Samuel Scott. J Illinois. Or ants same land. Note : — Various words have been substituted in different localities, and by different abstractors for the heading or title, in place of the word abstract, such as "examination," '-search," "brief," "survey," "chain" of title, etc. ; all of which are practically synonymous with abstract, un- less it may be where the words have acquired a special and local mean- ing, as distinguishing different degrees of thoroughness. Abstract of Title, is the technical term, and for that reason is, perhaps, preferable to any other. APPENDIX. Samuel Scott and Fanny, his wife, 3. to William Jones. Doc. 4, 200. > Warranty Deed,^ dated July 2, 1840. Filed July 15, 1840. Recorded in hooh D, page 271 . Consid. §300. Conveys same land. Certificate of acknowledgment dated July 2, 1840, by Justice of the Peace, Oooh County, Illinois, does not state that contents of deed were made Icnown to Mrs. Scott. William Jones 4. to William H. Gardner Doc. 7, 460. Deed, dated May 27, 1845. Filed June 16, 1847. Recorded in book 24, page 1. Consid. §1. '■'■Grant, bargain, and sell," etc., all of W. % S. W. % of Sec. 12, aforesaid. Contains covenants of ivarranty against all persons; '■'excepting a certain mortgage for the sum of §1,000, "executed by the grantor herein to James Adams, dated "March 1st, 1841, and recorded inbook W, at page 146." Note : — The above mentioned mortgage was released on the margin of the record thereof by the mortgagee June 20, 1846. William H. Gardner and Mary, his wife, 5. to George W. Samuels. Doc. 17, 600. Quit Claim Deed, dated January 10, 1846. Filed June 20, 1847. Recorded in book 24, page 10. Consid. §1. ^The character of the instrument should he taken from the whole doc- ument and not simply the heading. Warranty deed is understood to mean a deed with full covenants. VI ABSTRACTS OF TITLE. ^'Remise, release and quit-claim'' the W. % S. W. %. Sec. 12, aforesaid. Certificate of achnoivledgment dated January 1846. George W. Samuels ' 6. to John W. Johnson. Doc. 19, 700. Mortgage, dated May 4, 1850. Filed May 10, 1850. Recorded in book S, of mortgages, page 46. To secure payment of §4,500. payable in two years from date, with interest at 8 per cent, per annum. Conveys the land described in the caption hereof. John W. Johnson 1 Assignment,dated August 7 ,1851. 7. to ! Filed September 1, 1851. Abram Johnson. Doc. 26, 320. Recorded in book 1 , of mortgages, page 100. Sells, assigns, etc., a certain indent- ure of mortgage, dated May 10, 1850, made by Geo. W. Samuels to said assignor, together ivith the bond or obliga- tion therein described and the money due and to become due therein, which said mortgage is recorded in booh S. of mortgages, page 46. In the Circuit Court of Cook County. Abram Johnson, ~\ Case No. 5000. 8. vs. I. In Chancery. The unknown heirs Bill to foreclose mortgage given, of Geo. W. Samuels.} by Geo. W. Samuels to John W. Johnson, (^No. 6, above') filed Jan- uary 18, 1855. Sets forth the execution of said mortgage and the bond therein mentioned; the assignment of said mortgage August 7, 1851, to complainant ; that the bond and -mortgage was payable at a day long since past, the last payment having APPENDIX. Vll been due May 10, 1852; thai the said George W. Samuels died about the year 1853, leaving heirs entirely unhnown to complainant; that the said sum of money and the interest thereo7i described in said bond and mortgage still remain un- paid. Prays thai an account be taken and that the unknown heirs of said George W. Samuels he decreed to pay the amount found due to complainant, or in default thereof be absolutely debarred and foreclosed of and from all right and equity of redemption in and to said mortgaged premises, etc. On file with the papers is the original bond from said Samuels to George W. Johnson, certified copy of the mort- gage, and original assigmnent from George W. Samuels to complainant. Summons to ^Hhe unknown heirs of George W. Samuels" issued, dated January 18, 1855, returnable on first Mon- day of March ' ' next. ' ' Returned: '■'■The unknown heirs of George W. Samuels "not found in my county this 27th of February, 1856." Affidavit of non-residence of defendants filed January 18, 1855. Also stated that the names of said heirs of George W. Samuels were unknown to affiant. Proof of publication of notice to defendants, filed March 25, 1856 ; said notice gives title of court and cause, the filing of bill and issue of summons therein and cites defend- ants to appear on the fourth Monday in March, 1855. Certificate of publisher attached, certifies that said notice has been published in the " Chicago Daily Democrat," four weeks consecutively, commencing with the 18th of January, 1855. rili ABSTEACTS OF TITLE. March 29th, 1856 {Record M. page 212) Order. It appearing to the Court that due notice of the pendency oj this suit has been given by publication according to law, it is therefore, on motion t&c, ordered that said defendant or defendant's, unknown as aforesaid, plead, answer or demur to complainants bill instanter, and no answer being interpos- ed it is refen-ed to the master of Cook County to take proofs and report, <&c. Master's report, fled April 8th, 1855. /Said master reports proofs taken before him and the amount due com- plainant of principal and interest §5,896.45, and that the mortgaged premises are insufficient in value on a sale thereof to pay the said mortgage debt. April 9th, 1855 {Record M, page 267). Decree: It appearing to the court that a decree was heretofore made upon the hearing of this cause on March 29th, 1855, whereby it was referred to master of this court to take proofs &c., and it further appearing that the said master made Ids report in the premises on the 8th day of April, 1855, whereby he certifies that there was due to the above named complainant the sum of §5,896.45 for principal and interest, by virtue of said bond and mortgage and the assignment thereof, and further, that the land described in said mortgage was not worth more than §5,000., and, if sold, vjould not pay the amount due to said complainant on said mortgage, which report was, by order of this court, dated April 8th, 1855, duly confirmed. {No such confirmatory order found.) Therefore, on motion &c., it is ordered, adjudged and decreed that the said defendant do pay complainant, at the office of the clerk of this court, the sum of §5,896.45 APPENDIX. IX within fifteen months from the dale of rendering this decree, and that complainant reconvey said premises to defendants, but that in defaxdt of such payment within fifteen months from the rendering of this decree, that said defendants from thenceforth, do stand absolutely debarred and foreclosed of and from all right, title, interest, equity and benefit of redemp- tion of, in and to said mortgaged premises, as the same are described in said mortgage mentioned in said bill of com- plaint . "Johnson's 8ubdi-' "vision . 9 "of "W. y2 8.W. % "Sec. 12, Town "00, North, "Range 00, East "3d P. M. Doc. 79,890. Map, entitled as in the margin. Recorded June 12, 1865, in book 1 of Plats, page 97. Surveyor's certificate dated April y21, 1865. Acknowledged by Abram John- son, certificate dated May 5, 1865. Approved by the Board of Public Work June 12th, 1865. Said map is in part as follows : g GALENA & CHICAGO UNION KAIL BOAD. I 445.82 ABSTRACTS OF TITLE. Airayn Johnson and~ Elizabeth, his wife, 10 to > Power of attorney, dated Septem- ber 25, 1865. Filed September 29, 1865. William C. Smith. I Recorded in hooh 250, page 52. Boc. 81,845. J Said Abr am and Elizabeth John- son mahe, constitute and appoint said William O. Smith their true and lawful attorney, for themselves and in their name, place and stead, to grant bargain and sell, all, or any part of any lot or lots, parcel or parcels of land owned by them in Johnson's subdivision of the W. }4 S. W. j^ Sec. 12, Town. 00, North, Range 00, East 3d P. M., in Cook County, Illinois, for such price, and on such terms, and to such person or persons as he shall think fit and con- venient ; and also for them and in their name and as their act and deed, to sign, execute, acknowledge and deliver such deed or deeds, either with or without convenants of warranty , and conveyance or conveyances, for the absolute sale and disposal thereof, or any part thereof, and for the relinquishment of the dow^r interest of the said Elizabeth, wife of the said Abram Johnson, with such clause or clauses, covenant or covenants, agreement or agreements, including the release and waiver of the right of dower, as their said attorney shall think fit and expedient, giving and granting to their said attorney full poioer and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fidly, to all intents and purposes, as they might or could do if personally present at the doing thereof, with full power of substitution and revo- cation, hereby ratifying and confirming all that their said attorney, or his substitute, shall lawfully do or cause to be done by virtue hereof. APPENDIX . XI Abram Johnson and^ Warranty Deed, dated July 15, Elizaheth, his wife, by Attorney in fact 11 to James M. Brown. Doc. 146,670. 1868. Filed August 10, 1868. Recorded in Book 468, page 300. Consid. §3,500. Conveys Blocks 1 and 2 in John- sons Subdivision of W. yi S. W. % Sec. 12, Town. 00 North, Range 00 East 3d, P M., •^Subject to taxes of 1868, and also to an unwritten lease ^^ of said premises for the current year, to Jacob Zeder, at ''an annual rental of §6.00 per acre, which the grantors ^'reserve, and which said lease and taxes are hereby except- '■'■ed from the convenants herein." Grantors sign by William O. Smith their attorney in fact, who also acknowledges said instrument as the act and deed of the said Abram Johnson and Elizabeth Johnson, his wife. - : o : - TAX SALE. 12 Sale Aug. 26, 1870 (Sale commenced Aug. 10, 1870), for State and County etc.. Taxes of 1869, on Block 1, in Johnson's Subdivision of W. % S. W. yi Sec. 12, T. 00, N., R. 00, E., to W. K. Deboard for §56.00;- Block 2 of Johnson's Subdivision aforesaid, to W. K. De- board for §27.50. Redeemed July 20, 1871, by James M. Brown. lii ABSTKACTS OF TITLE. We have examined our indexes to Records in Uook County, Illinois and find: No conveyances o/ the premises described in the caption hereto, executed by any of the parties named herein as gran- tor or grantee, shown thereby to have been recorded in the Recorder's Office of Cook County, Illinois, except as shown on the ten preceding sheets. No judgments rendered in any court of record in said Cook County, Illinois, agairist James M. Brown which are a lien on said premises. No examination made for judgments against James Brown, nor against James Brown with any middle initial other than "M." No taxes, or tax sales, or forfeitures of said premises, remaining unredeemed or uncanceled of record. Instrument numbered two taken wholly from the Books of Original Entries and Indexes. SMITH & JONES. Chicago, December 1st, 1885. Abridgments In abstracts which fail to set forth every point material to the title, and which it is important should be examined and passed upon, are reliable only in proportion to the degree of confidence placed in the skill and experience of the abstractor. A perfect abstract will present every point necessary to show a complete history of the title to the land in question, sufficiently minute to enable counsel to pass abso- lutely — not hypothetically — upon the state of such title, without resort to the records, documents or extrinsic evidence affecting the same. The function of the abstractor being to furnish the facts which enable coun- sel to apply the law as certainly as though the original documents and proofs were before him. The points necessary to be noted in the abstract will, of course, vary according to the local laws and circumstances of the particular case. It would be impossible to suggest forms applicable to all manner of trans- actions and conditions that will arise in a course of practice in the APPENDIX. Xlll examination of titles. Indeed it will seldom occur that any set form or phraseology will apply to two instruments of the same general nature, and for that reason the use of printed forms has been found impracti- cable, and the better informed class of practitioners have abandoned their use. Abstracts are no more matters of common form than are wills, or any other instrument that must conform in all its parts to a special state of facts. No attempt will, therefore, be made at giving a complete set of forms, but a few examples are given by way of illus- tration. ABSTRACT OF TITLE. TO The Noeth West Quarter of Section Twenty-One (21), Township Thirty-Nine ( 39 ) , North, Range Thirteen (13), East of the 3d Principal Meridian, containing 160 acres, situated in Cook County, Illinois. United States 1 to Daniel Williams. Doc. 20,320. Patent, dated July 1, 1848. Certificate JSTo. 9,038. General Land Office record, Vol. 51, page 367. Recites the filing of certificate, showing payment in full, according to act of Congress, etc. Grants to Daniel Williams, " his heirs and assigns for- ever," the land described in the caption hereof. ■^ SEAL, y By the President, James K. Polk, 8. H. Laughlin, By J. K. Stephens, Act. Sec'y. Recorder Gen' I Land Office. Filed for record June 3, 1850, and recorded in book 30, page 261 . XIT ABSTRACTS OF TITLE. Daniel Williams and^ Warranty deed, dated May 10, Mary B., his wife, of Chicago, 111. 1869. Oonsid. §3,500. 2 to V The receipt of which is achnowl- James Brown. §5.00 Stamp. Doc. 195, 886 edged. ''Ch^ant, bargain, sell, convey and confirm, unto the said James Brown his heirs and assigns forever," etc., land described as in the caption hereof. With the usual covenants for seisin, right to convey against incumbrances and of warranty against all persons. Attest hands and seals. In Presence of ^ Daniel Williams, <( seal. )■ John Jones. > t,^ ti -m-n. , i Thos. Smith. ) ^"'''y B- Williams, { seal. J. Acknowledged May 10, 1869, in the county of Cook, and State of Illinois, before James Brown, a Notary Pub- lic, in and for said county. Certificate states that the grantors, naming them, personally appeared, were person- ally known, and acknowledged that they executed the within and foregoing instrument, etc.; and that said Mary B., etc., being examined separate and apart from her husband, and having contents and ineaning of said instrument ex- plained to her, acknowledged that she relinquished herdoioer and waived all right, etc., under Homestead and Exemption Laws. Signed and attested by notarial seal. Filed for record May 11, 1869, and recorded in booh 100, page 56. ( The foregoing particulars taken from the original in- strument. ) APPENDIX. XT We have examined our indexes to Records in Cook Coun- ty, Illinois, and find: N^o conveyances of the premises described in the caption hereto, shown thereby to have been recorded in said county, except as shown on the two preceding pages. iVo judgments rendered in any court of record in said county against James Brown, which are a lien upon said premises. No taxes or tax sales, or forfeitures of said premises re- maining unpaid or unredeemed or uncancelled of record. No examination made as to any matter not herein men- tioned. SMITHS JONUS. Chicago, June 1st, 1870. CONTINUATION OF ABSTRACT OF TITLE. TO The Northwest Quarter of Section 21, Township 39, North, Range 13, East of the 3rd P. M.^ 160 acres, IN Cook County, Illinois. Last examination by us, dated June 1, 1870. In the matter of the "] In the Probate Court of Cook the Estate of James Brown, de- ceased. County, III., Case 1, Box 269. Will of James Brown, dated Oc- tober 9, 1883, filed, proven and ad- m,itted to probate in open court No- vember 19, 1883. {Recorded in Vol 4, page 266.) lestator disposes of his estate as follows : 1st. Directs that all his just debts and funeral expenses be paid by his executor, hereinafter named, as soon as con- veniently may be after his death . XVI ABSTRACTS OF TITLE. 2d. Makes sundry bequests of specific articles of personal property. 3d. All the rest, residue and remainder of his estate, both real and personal, he devises and bequeaths to Samuel C . Davis and John Broivn, his executors '■^hereinafter^' ap- pointed, and to the su7'vivor of them. In trust, nevertheless, for the joint and equal benefit of his children, James Brown, jr., William R. Brown, Anna 31. Broivn and Francis H. Brown, as '■^hereinafter specified and pre- scribed." Directs that his executors and the survivor of them shall have and retain the possession and management of said residue and remainder of his estate, and receive the rents, income and profits thereof, so long as may be neces- sary for the execution of "this" his last will and testament, and he authorizes and em,powers his said executors and the survivor of them to sell and dispose of all or any part of said real or personal estate at any time remaining in their possession or charge, either at public or private sale, at such times, for such price or prices, and upon such terms and conditions as to them shall seem best, and to grant and con- vey or deliver the same to the purchaser or purchasers, free from all obligations, on the part of such purchaser or pur- chasers, to see to the application of the purchase-money ; so much of the proceeds of any such sale or sales as may be required for that purpose, may be applied by his said exe- cutors, or the survivor of them, to the payment of any mortgage liens outstanding upon the real estate not sold, or to the satisfaction of any valid claims against his estate. ***** He also authorizes and empoioers his said executors, and the survivor of them, to borrow, from time to time, such sum or sums of money as may be required to P'^y ^ff ^^y mortgage lien existing upon the real estate APPENDIX. XVll '^hereby" devised to them, if in their or his discretion it shall he thought best so to do, and to secure the payment of the money so borrowed by a mortgage or mortgages upon the said trust estate, or any part thereof, containing the usual provisions and covenants. ***** When his said son Willim JR. Brown, shall have reached the age of 21 years, if he shall live to that age, or when he would have arrived at that age, had he survived, which will be on Aug. 8, 1887 , it is his will and direction that all the trust property and estate then in the hands or possession of his said executors, or the survivor of them, shall be carefully appraised and divided by his said executors or the survivor of them, into four equal portions or shai-es, as nearly as may be; or in case of the death before that time of either of his said four children, ivithout leaving issue, into as many equal portions or shares as will suffice to give each of the four children then surviving, and the issue of each one who shall then be dead, leaving issue them surviving i^such issue to talce the shares which their respective parents would have taken if then living) one equal portion or share of said trust estate. One of said equal portions, or shares, of said trust estate he devises and bequeath to each of said four children who shall then he living, and another of said equal portions or shares he devises and bequeaths to the issue then surviving of each of said four children, who shall have died leaving issue, such issue talcing the share their parent would have taken if then living; and he authorizes and empowers his said executors, and the survivor of them,, to apportion said several shares between the respective persons entitled thereto, the sliare set apart and assigned to each to be designated and described in an instrument in writing to be executed under the hands and XVUl ABSTRACTS OF TITLE. seals of said exeeutors, or under the hand and seal oj the survivor of them. In case of the death of all his children without leaving issue hefore the time '■'■hereinbefore''' appointed for the ap- praisal and division of said trust estate, he devises and be- queaths the whole of said estate then remaining in the hands of his said executors to his {testator's) heirs at law. 4th. Nominates, constitutes and appoints 8am,uel G. Davis and John Brown, of Oooh County, Illinois, execu- tors of ''this" his last will and testament, waiving security, and revokes all former wills by him at any time heretofore made. 6th. "It is hereby further declared and provided," that if either of said executors or any future executor or trustee hereof shall die (^either before or after his acceptance of the trusts herein created), or go to t^eside out of the State of Illinois, desire to be discharged from, be removed, decline, or become incapable or unfit to act in the trusts of these pres- ents, while the same trustees, or any of them,, shall be sub- sisting, then, and in every or any such case, and so often as the same shall happen, it shall be lawful for the surviving acting or continuing executor or trustee hereof, or the execu- tors or administrators of the then last acting executor or trustee hereof (whether such surviving acting or continuing trustee or executors or administrators, respectfully, shall be willing to act in other respects or rSot) by any writing under his or their hands, attested by two or more witnesses, to nom- inate and substitute any person to be executor or trustee hereof in the place of the executor or trustee so dyin^, go- ing out of the state to reside, desiring to be discharged, re- moving, declining or becoming incapable or unfit to act as APPENDIX. XIX aforesaid ; and so often as any new executor or trustee hereof shall be appointed as aforesaid, all the trust estate which shall be and become legally and effectually vested in the act- ing trustee or trustees hereof, for the time being, to and for the same uses and upon the same trusts and with and subject to the same powers and provisions as are herein declared and contained, of and concerning the same trust estate, or such of the same uses, trusts, powers and provisions as shall then be subsisting or capable of taking effect; and every new trustee to be, from time to time, appointed as aforesaid, shall thenceforth be competent in all things to act in the execution of the trusts hereof, as fully and effectually and with all the same powers and authorities, to all purposes whatsoever , as if he had been originally appointed an executor or trustee in the place of the executor or trustee whom he shall, whether immediately or otherwise, succeed. 6. Provides for an alloivance from the principal of his estate for the suitable maintenance, &c., of .his children, or either of them, in case the net income of his estate be insuf- ficient therefor. In testimony whereof, etc. (^Signed) James Brown. Attesting witnesses'] John Smith, ! Samuel Jones, j William Watkins.j Petition of Samuel C. Davis and John Brown for proof of will and letters testamentary. Filed Nov. -19, 1883. Represents that James Brown died Nov. 9, 1883, leaving him, surviving James Brown jr., William R. Brown, Anna M. Brown and Francis H. Brown, his children and only heirs at law. (12) XX ABSTRACTS OF TITLE. That said deceased left real estate in Cook County, Illi- nois, etc. Subscribed by petitioners and sworn to Nov. 17, 1883, before W. W. Black, Clerk of the Probate Court, of Cook County, Illinois. Nov. 19, 1883 (Record W, page 100) Order: Recites that Samuel C . Davis and John Brown, of Cook County, Illinois, appeared and produced a writing purporting to be the Last Will and Testament of James Brown, and filed petition for probate thereof and for letters testamentary: And it appearing to the Court from said petition that James Brown, of Chicago, in said county, departed this life on the 9th day of November, 1883, leaving said writ- ing as and for his Bast Will and Testament; and there- upon John Smith, Samuel Jones and William Watkins, the subscribing witnesses to said will appeared, and in open court, on oath, testified that they were present at the execu- tion of said will, and saw the said James Brown sign said will in their presence, and heard him declare the same to be his last ivill and testament; that they subscribed their names thereto as witnesses, in the presence of, and at the re- quest of the testator and in the presence of each other, and that they believed the .said testator was of sound mind and memory, and of lawful age at the time of signing said will, etc. And it appearing to the Court from said testimony that said will was duly executed and attested according to law, and that the said testator was of sound disposing mind and memory, and otherwise competent to make his will at the time of signing the same ; it is ordered that said xoill be received and recorded as the last will and testament of the said James Brown, deceased. APPENDIX. XXI And it is further ordered that letters testamentary on said will be issued to the said Samuel O. Davis and John Brown the said executors named in said will upon their filing bond as such executors in the penal sum of §50,000 each, con- ditioned as the law directs. Whereupon said Samuel C . Davis and John Brown present their said bond duly exe- cuted and talce and subscribe the oath of office as said exe- cutors. And the Court having examined and approved the bond, it is ordered that letters testamentary be issued accordingly. Bond of executors in the sum of 50,000 each, surety waived, filed and approved Nov. 19, 1883, {Recorded in Vol. 3, pages 410 and 411.) Letters testamentary to Samuel C. Davis and John Brown issued dated November 19, 1883. {Recorded in Vol. 3, page 310. ) Warrant to appraisers issued, dated Nov. 19, 1883. Proof of publication and posting of notices for adjudi- cation, filed Dec. 8, 1883, approved in open court, Janu- ary 21, 1884. Adjudication ordered January 21, 1884. Sundry claims filed and allowed amounting in the aggre- gate to the sum of §4,566.99. Appraisement bill filed and approved February 25, 1884. Total value of said estate subject to appraisement §815.40. Inventory filed and approved February 25, 1884, men- tions real estate as follows : The North West quarter of Section 21, Township 39, North Range 13, East 3d P. M. {with other property.) XXll ABSTRACTS OF TITLE. Additional inventory -filed February 13 , 1885, and ap- proved February 19, 1885, mentions no real estate. Affidavit I Subscribed and sworn to Decem- 4 by yber 31, 1885. Samuel C . Davis. i ( On file with the papers but not recorded. ) Recites that affiant ivas well acquainted xoith James Brown, who departed this life at the Gity of Chicago, Ifo- vein,ber 9, 1883 ; that he is one of the executors of the Last Will and Testament of said deceased, and from an inti- mate acquaintance with his family relations for many years prior thereto, affiiant states, that he has good reason to believe and does believe that at the time of his death the said James Brown was a widower and left no luife him, sur- viving. (Signed) Samuel C Davis. Jurat by John Smith, ^^ Notary Public, in and for (Jook County, Illinois," seal attached. TAX MATTER. 5 Application made to the Comity Court, at the July Term thereof, for judgment against the North West quarter of Section 21, Toivnship 39 North, Range 13, Fast 3d P M., for Special Assessment No. 201, levied thereon by the Town of Blank, for water pipe in 51st Street, etc., was on the 1st day of September, 1882, luithdrawn. Said assessment amounting to §445, and remains unpaid or uncancelled of record. APPENDIX. XXUl Note: Receipt of John Smith, Treasurer of the Town of Blank, dated September 1, 1882, in favor of Samuel C . Davis and John Brown executors, for §445, in full for Special Assessment JSfo . 201, on JSr. W. }i Sec. 21, T. 39 JST., R. 13 East 3d P. M. Shown us this day. Smith & Jones. Chicago, Sept. 5, 1885. We have examined our indexes to Records in (JooTc County, Illinois and find: No conveyances of the property described in the caption hereof, from James Broivn, nor from Samuel C. Davis or John Bi-own individually , or as executors of James Brown, deceased, and none from James Brown jr., William R. Brown, Anna M. Brown or Francis Brown, shown thereby to have been recorded in the Recorder's Office of Cook County, Illinois, since June 1st, 1870, except as herein stated. JVo judgments rendered in any court of record in said county against any of the above named parties. ISTo taxes, or tax sales, or forfeitures of said premises, appearing on record as having been entered since June 1st 1870, and not marked cancelled or paid, except as herein stated. JVo other or further inquiries concerning said properf'' made. Ten {10) pages. SMITH & JOJSTBS. Chicago, August 15, 1885. The foregoing will te sufficient as an illustration. To attempt to go through the whole catalogue of conveyances, documents and proceed- ings, would swell this volume beyond our limits and, perhaps, serve no useful purpose. XXIV ABSTRACTS OF TITLE. It is always desirable for the examiner to have a written order from his client stating definitely what examination is required. This is desirable ^rsS in order that he may have indisputable evidence to show for whom the abstract was prepared, should such evidence be required and second if the examiner is directed to omit any of the usual searches or to make the examination for a specified time only, he should have evidence to that effect. In the absence of a written order the name of the client should always be inserted, either in the caption or the certificate, as a precautionary measure tending to limit the liability of the abstractor. The following will serve as an example : No ORDER FOR EXAMINATION OF TITLE. Chicago 188— HADDOCK, VALLETTE & KICKOKDS : Make an examination, according to your indexes to the records in Cook County, Illinois, of deeds, judgments and tax sales, of the title to the following described land in C ook County, Illinois, (Signed) Address, Under the English practice it is the custom, as we have seen, for counsel, upon perusal of the abstract, to make formal requisitions upon the solicitor for the vendor for such further evidence or information as may be required concerning the title, and to write the same on the left half of a sheet of paper folded down the middle, numbering each in- quiiy or objection consecutively and leaving the right half of the sheet blank for the replies of the solicitor to be entered thereon. The custom has never been adopted to any considerable extent in this county, nor can it be said to be equally applicable to our system of practice, but may sometimes be resorted to with advantage. As a rule such objections are set out in the opinion, thus : APPENDIX XXV OPINION OE TITLE. TO The North West y^ or Section 12, Township 39, North, Eange 13 East, as disclosed by the annexed abstract, MADE BY Handy & Co., dated January 2nd, 1886. I have examined said abstract consisting often numbers contained on eight pages, exclusive of the certificate to same, and find : ( Set out the defects or objections. ) I am of opinion that the defect noted in the acknowledg- mint of JSfo. 5, is cured by {refer to statute, or statereasons for such opinion. ) / am further of opinion that the title to the fee of said premises is vested in {owners natne) free from incumbrances or adverse claims except as above enumerated. To perfect the title' in said {owner) I would recommend: { /State conveyances or releases required. ) / would further suggest {set out precautionary measures advised, such as inquiries to be made of the tenant in pos- session or other persons, etc.) Counsel for INDEX-; ABORIGINAL TITLE. nature of, 11. ABSENCE. when presumptive of death, 173. ABSTRACT. origin and history of, 1. essentials of, 2. implied contract on part of vendor to furnish, 3. by whom to he preparea, s. at whose expense made, 6. ownership of, 7. need not date from patent when, 15. how far back it should date, 17. caption of, 27, 28, 138. arrangement of, 28, 43, 138. certificates to, 163. verification of, 5, 169. perusal of, 168-178. opinion upon, 178. of patent, 40. of purchase deed, 43-58. of conveyances dependent upon powers, 60-64. of a devise, 67-73. of judicial sale or decree, 76, 87. of execution sale, 91-103. of a tax sale, 107-119. of a dedication, 123-127. of a descent, 130-135. of title to leasehold, 138-142. of liens and incumbrances, 145-165. ACKNOWLEDGEMENT. essentials of, 56. how abstracted, 56. of lease, 141. ACTIONS. See JxJDiciAL Sales ; Execution Sales. ADMINIST ATION. See Probate Pboceedings. XXVlll INDEX . ADVERSE POSSESSION. title by, 16. inquiries in relation to, 22, 23. AFFIDAVITS. See Notice. as evidence upon titles, 174. AGENT. See Attorney; Powers. as to lease executed by, 141. ALIEN. disabilities of, 135. ALTERATION. of instrument, excites suspicion, 17 n. ANALYSIS. of abstract, 176. ANCESTOR. See Descent. debts of, 157. ANNUITIES. search for, 158. APPEARANCE. effect of, 79. APPRAISEMENT . in probate and other judicial proceedings, .s4. in sales upon execution, 97. ARRANGEMENT. of abstract. 28, 43, 138. ASSIGNMENT. of land warrant, 36. of dourer, effect, 162. of tax certificate, 116. of mortgage, 63. of lease, 142. ASSESSMENT. essential to every tax, 108. points to be noted in abstract respecting, 108. special, 110, 150. ATTACHMENT. office of, 93. requisites to, 93. method of abstracting, 93. lien of, 153. ATTESTATION. of deed, how abstracted, 55. ATTORNEY. execution of conveyance by, 61. liability for defective advice, 184. B. BANKRUPTCY. See Judicial Sales and Decrees. BIRTH. presumptions respecting, 173. BONDS. See Incumbrances. INDEX. XXIX c. CAPACITY. of parties, inquiries respecting, 22. presumption as to, 173. CAPTION. of abstract, 27-30, 138. CERTIFICATE. of tax sale, 115, 116. of abstractor, 165. of opinion, 178. CHANCERY PROCEEDINGS. See Judicial Sales and Deckeks. CODICIL. abstract of, 70. CONDITION. in deed, how abstracted, 52. of defeasance in mortgage, 62. on which power of sale is to to be exercised, 63. CONFIRMATION. by the government, 33. order of, on judicial sale, 86. on execution sale, 101. CONSIDERATION. how set out in abstract, 46. receipt of to be noted. 47. CONVEYANCES. See Deed. by whom and at whose expense drawn, 6. by attorney, 61. COPIES. as evidence, 39, 172. CORPORATION. importance of name being correct, 44. power of, to acquire and grant land, 44. COVENANTS. when and how abstracted, 53. CREDITORS. lien of upon real estate of decedent, 157. CURTESY. estate by, defined, 133. as an incumbrance, 162. not disclosed by records, 175. D. DAMAGE. measure of, for negligence in examining title, 186. DATE. of deed, abstract of, 43. DEBTS. of deceased person a lien on his real estate, 157. due the State or United States a lien, when 146, 147. XXX INDEX. DECKBE. See Judicial Sales ; Probatb Proceedings. defined, 76. abstract of, 83. effect of failure to record, 83. DEDICATION, defined, 123. express, 124. Implied, 125. acceptance essential to, 126. abstract of, 127. DEED. mode of abstracting, 43-58. of trust, 62, 160. upon a judicial sale, 87. upon execution sale, 102. upon tax sale, 117. , DELINQUENT TAX LIST. requisites of, 112. DELIVERY OF DEED, presumed when, 173. DESCENT. nature of, 130-135. searches and inquiries incident to, 131, 132. DESCRIPTION. of property, inquiries relating to, 21. of parties to deed, 44. of property, how set out in abstract, 49. liability for false, 182. DEVISE. method of abstracting, 67-73. DISABILITY. of aliens, 135. DISCHARGE. of mortgage, 62, 160. DOWER. defined, 133. inquiries relating to, 44, 133, 162, 175. E. EASEMENTS. an incumbrance, 163. ELEGIT AND EXTENT. purpose of the writ, 103. EMINENT DOMAIN. expense of proceedings borne by whom, 6. ESCHEAT. how perfected, 135. INDEX. XXXI ESTATES. for life and for yeE.rs, 138-142. inquiries incident to nature of, 139. of dower and curtesy, 133. EVIDENCE. required upou an abstract, 170. direct and primary, 171. secondary, when admissible, 172. perpetuation of, 172. EXCEPTIONS. See Reservations. EXECUTION. of deed, 55, 56. of a power, 63. of a will, 72. of a lease, 141. writ of, 95. EXECUTION SALES. defined, 91. requisites to, 92. mod3 of abstracting, 91-103. EXECUTOR. searches and inquiries respecting, 124. EXEMPTIONS. claim of, 96. F. FOEECLOSUKE. See Judicial Sales and Decreh^s. by advertisement, 63. FOREIGN WILL. authentication of, 73. mode of abstracting, 73. FRAMING OPINIONS. See Perusal. summing up, 177. FRAUD. circumstances suggesting, 175. affecting liability of abstractor, 185. Or. GRANT. title by, 33.' GRANTING CLAUSE. abstract of, 48. GRANTORS. description of, 44. GRANTEES. how described, 44 XXXn INDEX. H. HABENDUM. when and how abstracted, 50. HEIES. title of, 130-132. HEIESHIP. See Descent. not matter of record, 175. HISTORY. of conveyancing, 1. HOMESTEAD. right of, 133. I. roENTITY. of person, presumption of, 173. rNCUMBRANCES. search for, 145-165. INTEBLINE ATIONS . excite suspicion, 175. INDIAN TITLE. nature of, 11. INHEEITANCE. See Descent. INQUIRIES. as to the property, 21. as to the title, 22. as to the parties, 22. as to possession, 23, 175. as to change of testamentary trustee, 24. for unrecorded deed, 24. suggested by recent record of ancient deed, 175. by death of grantor and subsequent record of deed, 175 where deed is executed by attorney, 175. JOINT TENANTS. right of, 134. JUDGMENT. abstract of, 83, 94. essential to support an execution, 94. lien attaches from what date, 94, 151. for damages and costs how stated, 94. in justice court, 94. foreign, 94. in tax proceedings, 113. of forfeiture, 118. setting aside tax deed, 118. an incumbrance. 118. INDEX. XXXlll JUDICIAL SALE. defined, 76. abstract of, 76-87. JURISDICTION. of court admitting will to probate, 72. importance of, 77. requisites to, 77. of subject matter, 78. of the person, 79. petition must state cause of action, 80. abstract of, 80. how lost, 81. li. LAND WAKKANTS. whether real estate or personal, 36. assignments of, 36. LEGACIES. search for, 158. LEASEHOLD ESTATES. caption of abstract, 138. inquiries incident to, 139. mode of abstracting title to, 138, 142. LEASE. abstract of, 140. an incumbrance, 161. LEVY. of attachment, 93, 153. of execution, 95. LIABILITY. of examiners of titles, 181-186. LIEN'S. See Incumbrances. of attachment, 153. of judgment, 94, 151. miscellaneous, 164. search for, 145-165. LIMITATIOISr. title by, 16. in deed, 52. in will, 70. of action to set aside tax sale, 119. LIS PENDENS. notice of, 154. M. MAP. - of the premises, 30. when part of the description, 49. MAKBIED "WOMEN. See Dower ; Homestead. XXxiv INDEX. METHODS. of abstracting patents, 40. purchase deeds. 43-58. conveyances under powers, 60-64. a devise, 67-73. judicial sales and decrees, 76-87. execution sale, 91-103. tax sales, 107-119. dedication, 123-127. descent, 130-135. title to leasehold estate, 138, 142. MEASUEE OF DAMAGE. for omission from abstract, 186. MECHANICS LIEN. as an incumbrance, 155. MEMOKAJSTDA. where and how made, 58. what facts are important to be noted, 58. of contents of abstract, 176. MEMOKIALS. doctrine of, not applicable to this country, 172. MOETGAGE. by whom drawn and at whose expense, 6. with power of sale, 62. foreclosure of, 63, 76. as an incumbrance, 160. liability for omission of from abstract, 183. MOKTGAGEE. bound to use all lawful means to get best price, 63. cannot become a purchaser at his own sale without special authori- ty, 63. must grant in his own name, when, 63. N. NAMES. of parties to deed, 44. NEGLIGENCE. liability for in the examination of titles, 181. what will constitute actionable, 182. NOTICE. to agent notice to principal, 5. lis pendens, 154. by clause in deed, 169. NOTICE OF SALE. under power, requisites of, 63. mode of abstracting, 63. upon execution, how abstracted, 98. under tax proceedings, 114. INDEX. xxxr o. OFFICIAL BOND. when a lien, 148. OFFICIAL SEAHCH. liability of officer making, 183. OLOGKAPHIC WILL. whether required to be witnessed, 71. OKDINAlSrCE. special assessments under, 150. OPINION. on abstract, 177. certificate of, 178. ORIGIN. of abstract, 1. ORIGINAL DOCUMENTS. to be examined, 24. P. PARTIES. fictitious, render instrument void, 35. names and description of, 44. PARCELS. how described in the abstract, 49. PATENT. the foundation of title, 33. i inures to benefit of one to whom patentee is bound to convey, 35. in name of deceased person inures to his heirs, 36. in name of fictitious person is void, 35. founded on assigned land warrant, 36. effect of, upon rights accruing prior to its emanation, 37. presumed to have been duly issued, 38. may be set aside for fraud, 38. cannot be impeached collaterally, 38. requisites to the execution of, 38. registration laws do not apply to, 39. not delivered, how obtained, 39. exemplifications of, 39. abstracts of, 39. PAYMENT.- receipt of to be noted, 47. PEDIGREE. how proved, 132, 172. PERSONATION. of non resident, 175. of wife, 175. PERUSAL OF ABSTRACT. method of, 168-178. XXXVl INDEX. PLAT. of premises, 30. POSSESSION. as evidence of lost deed, 172, POWER OF APPOINTMENT. abstract of, 64. need not be referred to in deed, 64. effect where power and an interest unite in one person, 64, 67. in will, how abstracted, 70. POWER OF ATTORNEY. when and how abstracted, 60. inquiries to be made, 60. how revoked, 60. may prescribe requisites to deed, 61. to relinquish dower, 61. POWER OF SALE. in mortgage, abstract of, 62. requisites to execution, 63. assignment of, 63. in will, when implied, 67. PRELIMINARY INQUIRIES. importance of, 20. respecting the property, 21. as to the title and parties, 22. as to the possession, 23. PREMISES. description of, 49. PROBATE PROCEEDINGS. importance of jurisdictional inquiries in, 82. requisites to jurisdiction in, 82. method of abstracting, 82. PRESUMPTIONS. may be resorted to when, 173. as to delivery of deed, 173. are always in favor of innocence, 173. as to death, 173. PUBLICATION. of notice of sale to be abstracted, 63. order of, 79. requisites of notice by, 79. personal judgment cannot be based on, 93. PURCHASE DEED. See Deed. PURCHASE MONEY. purchaser bound to see to application of, when, 70. PURCHASER. should employ his own counsel, 5. and procure his own abstract and searches to be made, 5. may put vendor in default, how, 6. INDEX. xxxvii R. RECITALS. how far necessary to be set out, 45. as secondary evidence, 172. i BECEIPT. of purchase money, 47. of rent, 142. In a deed, 45. under power of sale, 63. importance of as secondary evidence, 172. RECOKD. date of has reference to filing, 24. effect of mistake ha, 24. REDEMPTION. from execution sale, 100. from tax sale, 116. REDDENDUM. mode of abstracting, 51. REGISTRATION. to be noted in abstract, 57. of will, 73. of foreign wills, 73. REPORT OP SALE. abstract of, 85. RESERVATION. requisites of, 51. S. SALE. See Povtbr of Sale. in judicial proceedings, 84. upon execution, 99. of land for taxes, 115. SATISFACTION. of mortgage, abstract of, 160. SEALS. to be noted in abstract, 55. will be presumed when, 173. SERVICE. of process, 79. abstract of. 79. SEARCH. of alphabetical index of conveyances, 24. for conveyance of married women how made, 24. for conveyance from donee of power, 24. for conveyances and incumbrances made by deceased person, 24. to be made against executor or trustee, and also the deceased, 24. for sheriffs sales to be made both in the name sheriff and execution debtor, 24. xxxviii INDEX. S'EAB.GH— Continued. for tax sales, 24. for wills 24. for liens and incumbrances, 145-165. SEAECH CLEEKS. liability of, 183. SEKVITUDE. an incumbrance, 163. SHERIFFS SaEE. See Execution Sales; Judicial Sales. SIGISTATUEE. mode of abstracting, 55. to will, 71. to lease, 141. of marksman, 175. SPECIAI. ASSESSMEISTTS. authority to levy, 110. a charge upon land, 150. SUMMONS. service of, 79. SUSPICION. circumstances suggesting, 175. SWAMP LAND. must be selected before title passes, 33 TAX. lien of, an incumbrance, 149. TAX CEETIFICATE. assignment of, 116. TAX DEED. abstract of, 117. TAX LEVY. tract of,10 9. TAX SALE. points requiring attention, 115. TAX TITLES. causes of infirmity in, 107. mode of abstracting, 107-119. TITLE. should be investigated before sale is contracted, 4. original sources of, 10. not always shown by the records, 20. hould be shown for forty years, 15-17. by adverse possession, 16. as to Indian titles, 11. from foreign government, 12. what, purchaser is entitled to demand, 177. INDEX. XXXIX TRUSTEES. expenses of, a lien, 159. cannot delegate his duties without he is empowered to do so, 63. authority of substituted trustee td be examined, 63. TRUSTS. how abstracted, 70. when purchaser is bound to see to application of purchase money, 70. U. UNDER LEASE. inquiries incident to, 142. UNITED STATES. law of, paramount to that of the State when, 34. USES. how set out in an abstract, 70. V. VENDOR. whether bound to furnish abstract, 3. VENDOR'S LIEN. as an incumbrance, 156. VENDITIONI EXPONAS. sometimes resorted to as supplemental to writ ot fieri facias. 103. W. WILLS. search for, 24. unessential parts of, 67. what are essential parts of, 68. points enumerated by Mr. Preston, 68. additional points, 68. method of abstracting important clauses in, 69. probate of, how abstracted, 72. WITNESS. to deed when essential, absence of to be noted, 55. to be mentioned in abstract, 55. WRIT 01^ EXTENT. purpose of, 103. KF 678 M38 Author Martindale, ¥.. B. Vol. fi 'Treatise on the Examination c^ Tltlefi t,Q R^aA Estate?' tt Date BoiiDwei's Name K. t ;^;_,vi,v,;.-,..