KF CJnrufU Cam &r[jnnl Ctbrarjj irc ,.-,« .S^S""" University Library KF 678.W29 1921 A practical treatise on abstracts and ex 3 1924 018 815 963 u\\ Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018815963 A PRACTICAL TREATISE ON ABSTRACTS AND EXAMINATIONS OF TITLE TO REAL PROPERTY a\^^A GEORGE W. WARVELLE, LL.D. Author of A Treatise on Vendor and Purchaser, Principles of the Law of Real Property, The Law of Ejectment, etc. FOURTH EDITION CHICAGO CALLAGHAN AND COMPANY 1921 Entered According to Act of Congress, in the year 1883, By GEORGE W. WARVBLLE, In the Office of the Librarian of Congress, at Washington. Entered According to Act of Congress, in the year 1892, By GEORGE W. WARVELL.B, In the Office of the Ijlbrarian of Congress, a,t Washington. Copyright, 1907, By GEORGE W. WARVELLB, - Copyright, 1721, By GEORGE W. WARVELLE ■:■: -I- 'I'ry -,,_ /^/ ■'- N ^ PREFACE In presenting a fourth edition of this work I have n^ade no change in either the method of arrangement or general treatment of the subject pursued in the first edition. The text has been en- larged by the introduction of new topics and a more extended dis- cussion of old ones. A number of additional practical forms have also been incorporated. Changes in the law or procedure since the last edition was published have been noted and the citation has been increased by reference to such later cases as seemed necessary or expedient. I have not attempted to compile a work on Real Property, nor even upon the Title to Real Property, and notwith- standing that this latter topic receives constant mention through- out the voliune it is yet but an. incident to my main purpose. My object has beqn the furnishing of practical aids and suggestions to those who prepare and examine abstracts of title, and to this end I have devoted much space to what may be regarded as the mere mechanical execution of the work. The statements of law are neces- sarily brief, and, for the most part, elementary. It is now nearly forty years since the first edition appeared. The uniform favor with which successive editions have been received by the profession emboldens me to hope that this revision . will be equally acceptable, and that in the practical work of the demon- stration of land titles it may be found a helpful assistant. G. W, W. Chicago, Feb. 10, 1921. PREFACE TO FIRST EDITION I have no apology to make for the appearance of this book, but a word or two of explanation may be in order. The subject which I have here undertaken to elaborate, is new to the legal literature of the United States, although abstracts of title have long been employed by the profession in all matters per- taining to title of real property. But with each successive year it has assumed vaster proportions, and, as the country continued steadily to develop, it has gradually been shaping itself into a dis- tinct branch of legal science, that calls for a high degree of tech- nical skill and special learning. And this has reference both to conveyancers and lawyers; the one to properly and systematically compile, and the other to interpret, the evidences of title which go to support claims of ownership in land. No American author has heretofore seen fit to epitomize, for the special use of conveyancers and the legal profession, the questions of law which arise during the perusal of an abstract, or to direct the attention of either class toward a systematic method of pre- senting those questions. Eminent writers on real property have jpassed the subject in silence, and the few American writers on conveyancing who have heretofore ventured to touch upon it, have dismissed it with the fewest possible words, and, as a rule, what- ever remarks they may have made were usually but servile echoes of English writers. Several works, of more than ordinary merit, have appeared in England, in which the subject, from an English standpoint, is very thoroughly and ably discussed, but the irreconcilable differ- ences in our laws and institutions have rendered them compara- tively worthless to the American practitioner, and they are rarely met with on this side of the Atlantic. The methods of English conveyancers and solicitors, while admirably adapted to the exi- gencies of their own laws and customs, and highly conducive to the, end desired, are but ill suited to our wants and furnish little assist- ance in tracing the devious courses of an American title. vii Vm PREFACE TO FIRST EDITION. Jn view, therefore, of the constantly increasing importance of abstracts of title, and the present inadequate means of informa- tion concerning the same, I have been prompted to write this book. It combines, not only the result of my own experience, both in the preparation of abstracts and in passing titles therein presented, but also the experience of a number of eminent conveyancers and lawyers whom I have freely consulted during its preparation. I have endeavored to give a general outline of what I consider the best methods of compiling the abstract so as to insure the most satisfactory results; a general system for the arrangement of the several parts and formal divisions; and the latest approved plans for presenting the essential matter of deeds, instruments and pro- ceedings affecting title necessary to be shown. I have further made a few suggestions relative to laying out and keeping a set of abstract indices, the great utility of which must be apparent without com- ment. To reduce the work within the smallest allowable space, as well as to prevent confusion, I have made but few allusions to local statutes, while the statements of law have been confined mainly to broad and commonly accepted doctrines. It is expected that the careful practitioner will be fully posted on the laws of his own State relative to descent, purchase, etc., and hence the rules here given are of general application only. As this book is intended for the use of conveyancers, as well as for the legal profession, it has been deemed best, in many instances, to elucidate only those principles which are elementary in their nature, and to avoid sub- tilties or extended discussions. Though this work is entirely the result of my own personal labor, I am under many obligations to gentlemen of the bar for advice and suggestion, and particularly would I express my thanks to S. M. Henderson, Esq., and Messrs. Haddock, Vallette & Eickcords, of Chicago, for the very valuable assistance rendered in the prepa- ration of many of the forms. I trust that my work may meet the favor of the profession, and be of real utility and assistance to them ; that it may serve to assist in creating a better understanding between conveyancer and coun- sel, by acquainting each with the methods of the other; and that it may be instrumental in building up a symmetrical system of title abstracts in this country. G. "W". W. Chicago, Sept. 1, 1883. ANALYSIS OF CONTENTS CHAPTBE I. PBELIMINAET OBSERVATIONS. SEO. PAGE. 1. Introductory 1 purport of the work 1 2. Abstracts defined 1 3. Origin of abstracts 2 4. Essentials of the abstract 3 5. The English method 3 6. The American method 4 7. Abstracts and examinations distinguished 4 8. Qualifications of the examiner '. . . . 5 9. Examiner 's liability for error 6 implied skill and knowledge 7 necessary conditions to fix liability 8 10. CSiaracter of examiner's liability 10 11. Duty of furnishing abstract 10 vendor to furnish when 11 custody and ownership of '. 12 12. Taxation of abstract books 12 13. Exemption of abstract books 13 CHAPTER II. TITLE TO REAL PROPBETTw 14. Property and title distinguished 14 15. Acquisition of title 14 by descent , 14 by purchase '. 14 other distinctions -. 15 16. Classification of title 15 Blackstone's divisions 15 American divisions 15 bad, doubtful and perfect 15 legal and equitable -. 16 17. Sources of title 16 the King i 16 the State , 16 X ANALYSIS OP CONTENTS. SEC. PAGE. 18. Nature of title in the United States 17 all land held in allodium 17 submission to legislative control 18 19. Estates under allodial titles 18 fee simple 18 for life 18 for years 18 possession and expectancy 19 reversions and contingencies 19 20. Uses and trusts 19 21. Powers 20 22. Homesteads 21 23. Dower and curtesy 23 24. Terms of years » 25 25. Easements and servitudes 26 26. Color of title • 27 27. Evidences of title 28 28. Alienation and descent 28 CHAPTER III. TITLE BY DESCENT. 29. Nature of the title 30 30. Rules of descent 31 31. Consanguinity 32 methods of eoniputation , 32 by the common law 32 by the civil law , . . . 33 table of degrees of consanguinity 35 32. Affinity 33 33. Adoption 33 34. Proof of heirship 36 35. Proof of death 36 36. Conveyances by heirs 36 CHAPTER IV. TITLE BY PURCHASE. 37. Nature of the title 38 methods of purchase 38 38. Deed 38 39. Devise 39 40. Public grant 39 41. Estoppel 40 42. Technical estoppel 40 43. Equitable estoppel 42 44. Relation 44 45. Prescription and limitation 45 46. Accretion and reliction :' 4g rules for measurement 47 ANALYSIS Of contents. XI SEO. PAGE. 47. Avulsion 48 48. Riparian titles 48 49. Dedication 50 50. Confirmation 50 51. Occupancy 52 52. Abandonment 52 53. Eminent domain 54 54. Title acquired by eminent domain 54 55. Escheat 56 56. Confiscation 57 57. Forfeiture 58 CHAPTER V. SOURCES OF INFORMATION. 58. Records 59 defined , . . 59 dignity of 59 59. Depositories of records 59 60. The right of inspection of records '. 60 60a. Continued — Later views 63 61. Doctrine of notice 64 62. Constructive notice 65 63. Actual notice 66 64. Registration , 67 I 65. Effect of recording acts 68 66. Loss or destruction of record 70 67. Official aids to search 71 68. Grantor and grantee indexes 71 69; Notice lis pendens 73 70. Plaintiff and defendant indexes 73 71. Tax records 74 72. Official certificates 74 72a. Municipal records 74 73. Church and parish records 74 CHAPTER VI. INDICES. AND BEEERENCES. 74. Importance of indexes 76 75. Patent systems 76 76. The government tract book 77 index compiled from 77 77. Field notes of government surveys 78 uses of in abstracting 78 78. The original entry 79 method of arranging books 79 illustration of sample page 79 method of compilation 80 Xll ANALYSIS OP CONTENTS. SEC. P^OE- 79. Document number index °^ method of compilation , °^ illustration of sample page • ^0 80. Long form entries ^ °" 81. The tract index ^^ how compiled ' °^ sample page '• ^^ 82. Irregular index ^-^ 83. Tax index 8* method of compilation 84 sample page °^ 84. Judgment index 85 sample page 85 85. Decrees and sales in chancery 85 86. Grantees index 85 87. Laying out the books ■ • 86 scale for indexing 87 88. Hesume i 87 CHAPTER VII. COMPILING THE ABSTRACT. 89. Generally considered 88 90. The extent of the search ^ 89 91. Making the chain 90 92. Formal parts 91 93. The caption 91 for general examination 92 for assumption of title 94 for special examination 95 for tax abstract 95 94. Arrangement of the abstract 95 practical example 96 95. Synopsis of instruments 97 96. Fullness of narration 99 97. Instruments shown for reference 100 98. Examiners ' notes 100 99. Irregular instruments 101 100. Reference to original instruments and private memoranda 101 101. Abbreviations 102 102. Letter press copies 103 103. Oonolndiug certificate 103 practical example 104 CHAPTER VIII. INCEPTION OF t'iTLE. 104. Preliminary stages of title 108 105. Inceptive measures under the TJ. S. land laws 109 ANALYSIS OF CONTENTS. Xlll SEC. — PAGE. 106. Disposal of the public lands 110 107. Public land sales. Ill 108. Private entry of lands Ill origin of term Ill entry, how made '. Ill 109. Nature of the title conferred by entry 112 110. What lands subject to entry 114 111. Pre-emption entries 114 112» Nature of pre-emption rights 116 113. Conveyances before entry - 117 114. Graduation entries 118 115. Donation entries 119 116. Homestead entries 120 117. Eights acquired under homestead acts 121 118. Desert land entries 122 119. Timber culture entries ; 123 120. Location by military vfarrants ' 123 121. Land scrip 124 Virginia military scrip 124 Indian or half-breed scrip 124 private land scrip 125 agricultural college scrip 125 122. Swamp land grants 126 act of 1849 126 act of 1850. 126 123. School lands 127 124. Internal improvement grants 129 125. Land grants to railroads 129 126. Public highways 130 126a. Private land claims 131 127. Who may acquire a title 132 128. Inceptive measures in the abstract 132 CHAPTEE IX. INITIAL STAmiMENTS. l 129. The government entry 134 practical form 134 130. The donative act 135 practical form 135 131. Continued, section sixteen 136 practical form 136 practical form for lieu land. . . ." 137 132. Confirmations .' 137 133. Town site entries 139 act of 1864 139 act of 1865 139 act of 1867 139 134. The receiver's receipt 141 practical form 142 XIV ANALYSIS OP CONTENTS. SEC. ' PAGE. 135. State lands 142 commissioner 's receipt 143 136. The root of title 144 CHAPTER X. CONGKESSIONAi AND LEGISLATIVE GRANTS. 137. Legislative grants generally considered 145 138. Nature and effect 145 from the United States 145 from the State 146 139. Construction of legislative grants 146 140. Formal requisites 147 practical form 148 CHAPTER XI. PATENTS. 141. Patents defined 150 149. Patents from the United States 150 formal parts 151 150. Validity 151 151. Continued, delivery 152 patents need no delivery 153 take effect by registration 153 152. General land office record 154 its object and purport 154 153. Operation and effect of patents ,, . 155 its evidence of governmental action 156 when operating only as a quit-claim 156 154. Continued 156 by what laws patents construed 157 purchaser need not look behind patent 157 but is chargeable with defects upon its face 157 155. Construction ig,7 156. Formal requisites 158 abstract of patent 158 157. Patents from the State 159 classification of State lands I59 history of State titles 160 to what State patents confer title I60 158. State patents, continued 261 159. Formal requisites of State patents 162 by whom issued j^go CHAPTER XII. SURVEYS, PLATS AND SUBDIVISIONS. 160. General remarks 1 go 161. Divisions of the public domain. . ., j^gg townships igo ANAI,YSIS OP CONTENTS. XV SEC. PAGE, sections 164 plan of township, numbers and base lines 165 township plats 165 163. Subdivision of sections 166 illustration of legal subdivisions 166 illustration of fractional section 168 sketch maps 168 164. Rectangular system of XJ. S. surveying . 168 principal base line and meridian 169 165. Meander lines 170 166. Plats and subdivisions 171 167. Formal requisites 172 abstract of subdivision 172 168. EfEect of registration 174 169. Vacation and cancellation 174 abstract of vacation 175 170. Dedication by plat 176 distinguished from reservation 177 171. Re-surveys 177 CHAPTER XIII. FORMAL PARTS OP DEEDS. 172. Operative parts of a deed 179 173. Names of parties 180 174. Grantors 180 175. Grantees 181 176. Nature of the instrument 183 177. Date of instrument 184 178. Registration 185 179. Consideration 185 180. EfCeet of consideration 186 181. Words of grant 187 when implying covenants 188 182. Words of purchase and limitation 189 rule in Shelly 's case 189 183. Description of property 190 184. Description, sufSciency 190 185. Description, identification 191 186. Description, constructioii 191 187. Special recitals 193 188. The habendum 19?, 189. Exceptions and reservations 194 190. Conditions and restrictions 195 191. Covenants 198 192. Execution 200 193. Signature ' 200 194. Seal 201 195. Attestation 202 196. Acknowledgment 203 PAGB. . 207 , . 209 . 210 XVi ANALYSIS OP CONTENTS. SEC. 197. Delivery 198. Ancient deeds 199. Stamps CHAPTER XIV. ERRORS, OMISSIONS AND DEFECTS. 200. Error generally ^^^ 201. Defect of parties, grantor 213 202. Defect of parties, grantee 215 203. Disparity of dates ^^' 204. Technical phrases ^^" 205. Misdescription, uncertainty 218 206. Misdescription, omission 220 207. Misdescription, Quantity 220 208. Defective covenants 221 209. Defective acknowledgment 222 210. Continued 224 certificates of conformity 226 211. Repugnancy 228 CHAPTER XV. CONVEYANCES BY INDIVIDUALS. 212. Deeds in general 229 213. Deeds poll and indentures 230 214. Construction and effect of deeds 230 215. Validity 231 void and voidable distinguished 231 latent ambiguities 232 216. Warranty deeds 232 legal import 232 217. Abstract of warranty deed 233 practical example 233 218. Notes 235 219. Quit-elaim deeds , 235 legal import 236 220. Abstract of quit-claim deeds 237 221. Effect of covenants in quit-elaim deeds 238 222. Special warranty deeds 239 legal effect 240 223. Statutory forms ; 241 224. CJommon law conveyances 241 225. Release '. 242 226. Confinnation 243 227. Surrender 243 practical example 244 228. Assignment 244 ANALYSIS OF CONTENTS. XVH SEC. PAGE. 229. Conveyances m futuro ' 245 practical example 246 230. Conveyance of special interests and estates 248 231. Continued, instances 250 practical example 251 232. Restrictive and conditional conveyances 252 233. Prohibited conveyances, adverse seizin 253 234. Continued; fraudulent conveyances 254 235. Conveyances subject to incumbrance 255 236. Dedication by deed. ' 256 237. Resulting trusts 257 238. Re-records and duplicates 258 practical example 258 249. Corrected records' 259 CHAPTER XVI. SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 240. Marriage settlements 261 240a. Antenuptial agreements 262 241. Conveyances to husband and wife 263 community property 263 242. Conveyances between husband and wife 264 243. Conveyances by married woman 265 244. Effect of wife 's conveyance , 267 245. Continued; acknowledgment 268 246. Release of dower 269 practical example 270 247. Joint tenancies and tenancies in common 270 248. Partition deeds 271 practical example 272 249. Partnership conveyances 272 250. Corporate conveyances 274 251. Statutes of mortmain 276 252. Power of acquisition;' user 277 253. Municipal corporations 277 , 254. Conveyances to corporations 278 255. Conveyances by corporations 279 practical example 280 256. Continued; execution, acknowledgment 281 practical example 282 257. Acts of officers in excess of charter powers 284 258. Record of seal 285 259. Conveyances by incorporated religious societies 286 260. Heirs at law 287 261. Post-obit conveyances ' 288 262. Conveyances by delegated authority 288 practical example 288 263. Powers of attorney 290 practical example 291 XVIH ANALYSIS OP CONTENTS. SEC. PAGE. 264. Revocations 292 265. Conveyances in trust 293 266. Revocation of trust 295 267. Declarations of trust 296 practical example 296 268. Removal or substitution of trustees 297 269. Resignation, refusal to act 298 CHAPTER XVII. OrPICIAL CONVEYANCES. 270. Defined and distinguished 299 271. Ofaeial deeds generally 299 272. Recitals ~ 300 273. Covenants 301 274. Sheriff 's deed; on execution. . . ." 301 275. Continued; acknowledgment 302 276. Continued; operation and effect 303 277. Continued; imperfect description 304 278. Statutory sheriff 's deeds 304 practical example 305 279. Sheriff 's deed ; under decree 306 280. Master's, commissioner's and referee's deeds 306 practical example 307 281. Trustees 807 282. Transfers of the legal estate by trustees 309 283. Power of sale and trust of sale distinguished 310 284. Trustee 's deeds 311 practical example 312 285. Mortgagee 's deeds 314 286. Executors and administrators 316 287. Executor 's deeds 316 288. Administrator's deeds 317 practical example 318 289. Administrator with will annexed 320 290. Guardian 's deeds ., 321 291. Trustees can not become purchasers 322 292. Continued; exceptions and qualifications 323 CHAPTER XVIII. ASSIGNMENTS, INSOLVENCY AND BANKEUPTCY. 293. Assignments! generally 324 294. Voluntary assignments 324 295. Validity of assignments 32g 296. Formal requisites 3og 297. Title of assignee 000 298. Construction and effect 300 299. Conflict of laws ; foreign assignments 329 ANALiYSIS OF CONTENTS. XIX SEC. PAGE. 300. Insolvency 329 301. Bankruptcy 330 302. Jurisdiction and practice 330 303. Classification 331 304. Nature and effect of bankruptcy 331 305. Procedure 331 306. Bankruptcy proceedings ; how shown 332 practical example 333 307. The assignment 334 practical example 334 308. Assignee 's or trustee 's deed 335 /practical example .' 335 309. Discharge in bankruptcy 337 practical example 338 CHAPTER XIX. AGREEMENTS FOR CONVEYANCE. 310. Land contracts '. 339 311. Relation of parties under land contracts '. . . 340 312. Effect and operation of the contract 340 313. Nature and requisites 341 314. As affected by the recording acts 342 315. Construction of land contracts 342 316. Formal parts 342 abstract of agreement to deed 343 317. Assignment of the contract 343 318. Performance; sufficiency of deed and title 345 319. Forfeited contracts 346 320. Bond for deed 347 practical illustration 347 321. Agreements for conveyance by will 348 CHAPTER XX. LEASES. 322. Nature and requisites 349 323. Formal parts 350 abstract of lease 351 324. Covenants and conditions 352 325. Implied covenants 353 326. Agricultural lands , 353 327. Assignment of lease 354 CHAPTER XXI. MISCELLANEOUS EVIDENCE OF AND AFFECTING TITLE. 328. General remarks 356 329. Irregular instruments 356 XX ANALYSIS OF CONTENTS. SEC. I'^*'^ 330. Municipal ordinances ^"' practical example 3^^ 331. Executive approval of ordinances 360 332. Operation and effect of ordinances 360 333. Municipal resolutions 360 334. Oficial certificates 361 practical example 362 335. Incorporeal hereditaments 363 336. Easements and servitudes 363 337. Party wall agreements 364 practical example 365 338. Letters 365 339. AfBldavits 366 practical example 367 340. Continued; general requisites; sufficiency 368 341. Unrecorded evidence 368 CHAPTER XXII. MORTGAGES. 342. Nature of mortgages 369 343. Different kinds of mortgages 370 344. The equity of redemption. ; 371 345. Rights of mortgagor 372 346. Mortgages as affected by estoppel 372 347. Merger 373 348. Equitable mortgages 375 rules for determining 376 import and effect 376 349. Vendor 's liens 377 350. Mortgages proper 377 abstract of 378 351. Statutory forms 380 352. Uncertainty or error of description 380 353. Covenants in mortgages 381 354. Effect of special covenants 382 355. Special stipulations and conditions 383 356. Effect of informality '. 384 357. Purchase money mortgages 384 practical examples 385 358. Mortgages of homestead 385 359. Mortgage of after-acquired property 386 360. Record of mortgages 337 361. Notice imparted from possession 389 362. Re-records 339 363. Trust deeds 39O practical example 39I 364. Power of sale ~. 393 365. Assignment 394. 366. Operation and effect of assignments 395 ANALYSIS OP CONTENTS. XXI SEC. PAGE. 367. Formal requisites of assignments 396 368. Eeleaae and satisfaction 397 369. Porm and requisites of release 398 practical example 3M 370. Belease by trustee 399 371. Marginal discharge 401 practical example 401 372. Foreclosure „ 402 373. Proof of title under foreclosure 402 CHAPTER XXIII. WILLS. 374. Wills generaUy 404 375. Nuncupative wiUa 405 376. Nature of testamentary titles 405 377. Devises 406 378. Operation and effect of devises 406 379. Validity of devises 406 380. Testamentary capacity 407 381. Construction of wills 407 381a. Errors of description 409 382. Eepugnancy , 410 383. Descent and purchase 411 384. Words of grant 412 385. Words of purchase and limitation 413 386. Rule in SheUy's case 414 387. Interpretation of particular words and phrases 415 388. Words which pass real estate 416 389. Limitations and remainders 418 390. Devise to a class 419 391. Gift of the iueome of realty 419 392. Devise with power of disposition 420 393. Indeterminate devise 422 394. Devise on condition precedent 423 395. Conditional devise ; marriage 424 396. Contingent remainders 425 397. Contingent reversion 425 398. Devise to married woman .^ 426 399. Devises to executors in trust 427 400. Bequest to the devise by description 428 401. Precatory trusts 429 402. Perpetuities 429 403. Lapsed devise 430 404. Devises for the payment of debts 430 405. Charges on lands devised 431 406. Equitable conversion 432 407. The residuary clause 433 408. Codicils : 433 409. Revocation , 434 XXU ANALYSIS OP CONTENTS. SEC. I'^O^ 410. Formal requisites ^^^ 411. Abstract of wills '^^^ 412. Method of arrangement 4"^' 413. Practical examples ■ ^^^ proof of probate *^" 414. Probate of wills *40 415. Effect of probate 440 416. Foreign probate •. 441 practical example 443 417. Abstract of probate proceedings 443 practical examples 444 CHAPTER XXIV. LIENS, CHARGES AND INCUMBRANCES. 418. Liens generally 447 419. How created 447 420. Operation and effect 448 421. Method of arrangement 448 422. Mortgages 448 423. Dower 449 424. Judgments and executions 449 425. Judicial and execution sales , 449 426. Lis pendens and attachment 450 427. Decedent 's debts 450 428. Taxes 450 429. Municipal liens 450 430. Ofacial bonds 450 431. Leases 451 432. Vendor 's liens 452 433. Mechanic 's lien 453 434. Priority 453 435. Estate to which lien attaches 454 436. Limitation of lien 455 437. Assignability 456 438. Foreclosure of lien 456 CHAPTER XXV. LIS PENDENS AND ATTACHMENT. 439. Doctrine of lis pendens 457 440. Requisites of lis pendens 458 441. Continued; effect of dismissal 458 442. Notice lis pendens 459 practical example 460 443. Property drawn incidentally in question 460 444. Attachment 461 445. Formal requisites of attachment 461 practical example 462 ANALYSIS OP CONTENTS. XXlll CHAPTER XXVI. JUDGMENTS AND DECREES. SEC. PAGE. 446. Judgments and decrees; defined and distinguished 464 447. Operation and effect of judgments . . . 465 448. Lien of judgments 465 449. Territorial extent of lien 467 450. Duration of lien 468 451. Priority 469 452. After-acquired property 471 453. Docketing 471 454. Formal requisites of judgments 472 practical example 473 455. Antecedent proceedings 475 456. Judgments against a deceased person 476 457. Judgments against infants 476 458. Exemptions 477 459. Satisfaction and discharge 477 460. Decrees classified and distinguished 478 461. Operation and effect of decrees 479 462. Decrees rendered on constructive notice 479 463. Lien of decrees ; 480 464. Formal requisites of decrees 481 465. Abstract of decrees 483 practical example 483 466. Errors and defects 484 467. Continued ; middle names 485 468. Continued ; initials ; idem sonans 487 469. Operation and effect of probate decrees 489 470. Foreign judgments and decrees 489 CHAPTER XXVII. JUDICIAL AND EXECUTION SALES. 471. Judicial and execution sales; defined and distinguished 491 472. Execution sales; validity and effect 492 473. Title under execution sale 494 474. When the title vests 495 475. The writ 495 476. The levy 496 477. Notice of sale 496 practical example 497 478. Proof of publication 497 practical example 498 479. Execution sale as affected by death 499 480. Exemptions 499 481. Dower rights 500 482. Judicial sales ; validity and effect 500 483. Title under judicial sales 501 484. Rights of purchaser i 502 XXIV ANALYSIS OP CONTENTS. SEC. PAGE. 485. Compelling purchaser to take title 502 486. Order of confirmation 503 487. Effect of confirmation 504 488. Certificate of sale 505 practical example ; by sheriff 506 practical example ; by master 507 489. Assignment of certificate 508 490. Proof of title under judicial and execution sales 508 491. Continued; presumptions 509 492. Ptobate sales 510 493. Nature and requisites of probate sales 513 494. Abstract of probate sales 514 practical example 514 CHAPTER XXVIII. ACTIONS AND PROCEEDINGS. 49-!). Chancery proceedings generally 517 as affected by codes 517 496. Authority and jurisdiction of chancery courts 518 497. Authority and jurisdiction of probate courts 519 498. Actions and proceedings to be noticed 520 499. Jurisdiction the great essential 520 500. Notice afi:ord6d by chancery records 521 501. Process .' 522 502. Formalities of a summons 523 503. Service 524 504. Proof of service 526 505. Affidavit and order of publication 528 506. Appearance without process 529 507. Master 's and referee 's reports 529 508. Verdicts 530 509. Abstract of chancery proceedings 530 practical example 531 510. Injunctions 532 511. Ejectment 533 ■ 512. Quia timet 535 513. Partition 53g practical example 53g 514. Specific performance 539 51.5. Redemption 54j^ 516. Foreclosure 54]^ enumeration of methods 542 517. Dower 542 518. Divorce 543 practical example 545 519. Right of eminent domain 547 520. Proceedings for condemnation and assessment 548 practical examples 549 521. Construction of wills 55Q ANAXiTSIS OF CONTENTS. XXV CHAPTEB XXIX. TAXES AND TAX TITLES. SEC. PAGE. 522. Definition; nature and scope of the taxing power 551 523. Subjects of taxation 552 524. Lien of taxes 553 525. Tax' titles ' 554 requisites and effect 554 526. Nature of tax titles; dependent or independent 555 527. Proceedings incident to taxation 556 528. Description of land ; assessor 's plats 557 529. Sale for non-payment 557 practical examples 558 530. Forfeitures 559 531. Tax sales; tax payer as purchaser 560 532. Eights of purchaser 561' 533. Redemption 562 534. Certificate of sale 562 practical example 563 535. Tax deeds 563 536. Continued; statutory modifications of common law rules 564 537. Formal parts 566 practical examples 567 538. Effect of deed as evidence 568 539. Tax deed ; possession ; limitation 570 540. Tax abstracts 571 541. Special assessments 571 CHAPTER XXX. DESCENTS. 542. Title by descent 573 543. Nature, operation and incidents of title 574 544. Inheritance as dependent upon seizin 575 545. Heirship; its rights and privileges 575 546. The line of succession 576 547. General rule of descents 57€ 548. The right of representation 577 549. Preferences 577 550. Who may take by descent ; aliens 578 551. Continued; adoptive heirs 579 552. Ancestral estates; half blood 580 553. Surviving consorts 580 554. Coparceners 581 555. What descends 581 556. How affected by ancestral covenants 581 557. Liability for ancestral debts 581 558. Creditor 's liens 582 559. Eqiiitable conversion 583 560. Proof of heirship 584 XXvi ANALYSIS OP CONTENTS. SEC. i"A«^; 561. Proof of adoption ^^^ 562. Proof of death ^^^ 563. Continued; official registration ^^^ practicable example 564. Continued; probate of death. ^^^ 565. Proof of birth and legitimacy 5^0 566. Presumption of legitimacy °"2 567. Validity of descents 592 568. Abstract of descents ^^^ 569. Continued; probate proceedings 594 practical example 594 570. Settlement without administration 595 571. Escheat 596 CHAPTER XXXI. ADVERSE TITLE. 572. Adverse title, generally considered 598 573. Adverse conveyances 598 practical examples • • 599 574. Character of adverse possession 601 575. Color of title 603 576. Adverse possession under color of title 605 577. Construcfive possession 605 578. Adverse possession from user 606 579. Naked possession without claim 607 580. Tacking 607 581. Possession as notice 608 582. Who may acquire adverse title 608 583. Remainder-men 609 584. Reversioners 610 585. Tenants in common 610 586. Persons under disability 611 587. Married women 611 588. Adverse rights as against the State 611 589. Effect of adverse possession 612 590. Proofs to support title by adverse possession 613 CHAPTER XXXII. OPINIONS OP TITLE. 591. Perusing the abstract 615 Mr. Sugden 's views 615 592. Note taking 616 593. Examination of the muniments 617 594. Examination of deeds . . . ! 619 595. Examination of legal proceedings and judgments 620 596. Marginal notes and requisitions 622 597. Continued; English and American Methods compared 623 ANALYSIS OF CONTENTS. XXVll SBO. PAGE. 598^ Answers to requisitions 623 599. Affidavits of pedigree 624 practical example 625 600. Analysis of title 626 practical example 627 601. Analytical chains 629 practical example 630 602. Sketch maps 629 603. Preservation of memorauda 631 604. Passing the title 632 605. What constitutes :i valid title 633 606. Flaws 634 607. Clouds upon title . . ; 636 608. Inquiries in pais 637 609. Continued ; mechanic 's liens 639 610. Continued; easements and servitudes 640 611. Continued; homesteads 641 612. Printed copies 642 613. Framing opinions 643 614. Opinions of title 644 practical examples 645 615. Continued ; certificates of title 646 616. Opinions based upon the abstract 647 practical example 648 617. Perspicuity of expression 651 618. Oral opinions 653 619. Liability for erroneous opinions 654 620. Conclusion 656 APPENDIX. New England abstracts 659 English analysis of abstract 660 Order for examination of title 662 Tables of land measures 662 Eules for measuring land 665 • Spanish^Freneh land measures 666 Spanish-Mexican land measures 668 Texas land measures 671 ABSTRACTS AND EXAMINATIONS OF TITLE. CHAPTER ] PREIitMINARY OBSERVATIONS. §1. Introductory. § 8. Qualifications of the exam- §2. Abstracts defined. iner. §3. Origin of abstracts. § 9. Examiner's liability for error. M. Essentials of the abstract. sio. Character of examiner's lia- S5. The English method. bility. §6. The American method. §11. Duty of furnishing abstract. §7. Abstracts and examinations §12. Taxation of abstract books. distinguished. §13. Exemption of abstract books. § 1. Introductory. Within comparatively recent years the business of furnishing abstracts of title to real property has grown to enormous proportions in the United States, calling for a class of highly skilled conveyancers with special training and qualifications for the work, while the examination of titles has practically created a new department of legal labor. To assist, in an humble way, this large and constantly increasing class of practitioners, by a statement of the most approved methods of compiling and arrang- ing the abstract, the sources of information and" the aids derived from indexes and references, together with a brief review of the general principles of law applicable to the examination of titles, will be the object of this work. In the latter respect it is neces- sarily brief, arid consequently elementary, and is intended rather as a series of helpful hints and suggestions that may incite the examiner to more extended inquiry, than as a full elucidation of the law on the subjects discussed. § 2. Abstracts Defined. An abstract may be defined as a con- densed history of the title to land, consisting of a synopsis or 1 Warvelle Abstracts — 1 2 aBSTBACTS of TITIiB. L§ ^ summary of the material or operative portions of all of the various instruments of conveyance which in any manner alfect said land, or the title thereto, or any estate or iuterest therein, together with a statement of aU liens, charges or liabilities to which the same may be subject, and of which it is in any way material for pur- chasers to be apprised. It is usually arranged in chronological order and is intended to show the origin, course and incidents of the title without the necessity of referring to the original sources of information. §3. Origin of Abstracts. Although the use of abstracts of title has now become universal, where free alienation of land is permitted and property rights are recognized, but little can be said as to the origin of the practice. The earliest English works on the subject, published during the first half of the last century, treat of the abstract as an established fact, but make no mention of the period at which it first began to be used. During the earlier years of the United States, but little atten- tion was paid to title in purchases of real property. Ordinarily the buyer was fully satisfied with the vendor's "warrantee" deed, the covenants thereof being taken as conclusive evidence of all they recited. No inquiry was made with respect to the past, pres- ent possession beiag considered a sufficient guarantee of owner- ship, and no thought was taken as to the future. Transfers of land were frequently accompanied by the vendor's purchase deeds and , other muniments upon which the title was based, and such may still be the custom in some parts of the country. But, with the flood of years, the increasing commercial activity of the age, the removal of property disqualifications and other impediments to alienation, has come a vast accumulation of evidences of title, frequently involving complex interests that call for a high degree of skill to arrange and classify, as well as to interpret and adjust. Land, too, in many localities, has acquired an almost fabulous value and purchaser's now part warily with their money and only on strong assurance of title. It is no longer practical, save in rare instances, to examine title by specific inspection of the original documents, were such always available, or to laboriously follow on the records the various mutations through which it has passed. Yet, as purchasers take at their peril, save as they may find pro- tection in the covenants of their deeds, it is necessary that they should be apprised of whatever may affect the validity of the title or estate they take, of which the law charges them with actual or constructive notice. To satisfy this demand has been developed § 5] PKELIMINABT OBSERVATIONS. 3 the modern abstract of title, together with its incident, the ex- aminer. § 4. Essentials of the Abstract. Without going into detail at this time it may be stated generally, that the abstract should fur- nish all the material information contained in the original docu- ments and records from which it is compiled, and that, as fuUy and completely as if they had been specifically inspected. It should show, when from the source of title, the inceptive meas- ures; the foundation of title; the devolution of same to date of examination, including all transfers of any and every interest ; the incidents of the land itself, divisions and subdivisions; any and all adverse titles or claims; all liens, charges and incumbrances, however created, including judgments against the person during the period the law makes them a lien on land ; taxes, special assess- ments, and statutory liens; and every other matter or thing ap- pearing of record that may affect, implicate or impair the title. To these, in proper cases, may be added any matter in pais, that to the examiner may seem pertinent or material. § 5. The English Method. According to Preston,^ it is the cus- tom in England when land, or other property which does not pass by mere delivery but is held by a title depending on documental evidence, is sold, for the solicitor for the vendor to prepare an abstract of the title, and the solicitor for the purchaser to com- pare the abstract so furnished, with the deeds, wills, etc., that con- stitute the chain, to see that it contains a correct and faithful statement of all circumstances disclosed by them relevant to the title, or depending on extraneous facts ; as marriages, burials, bap- tisms, descents, etc. The abstract is prepared from the original documents, and is delivered to the purchaser who founds on it such "requisitions" by way of further inquiry or objection as he thinks proper. The purchaser must then send in his objections and queries within a limited time from the date of delivery of the abstract, and in default of such requisitions or objections he will be deemed to have accepted the title. The objections and queries, when made, are answered by statements and explanations, signed by the solicitor or party makuig them, and form a part of the abstract.^ The method of abstracting the instruments and ar- 1 1 Preston on Abstracts, 1. SDeane's Conveyancing, 325; Lee on Abstracts, 20. 4 ABSTRACTS OF TITUB. [§ 6 ranging the chain, differs in no material respect from that now commonly employed in the United States. §6. The American Method. Aside from an arrangement of indexes and references, there is no system of title abstracts that can be said to be distinctively American, the methods varying somewhat in different sections, though preserving a general simili- tude. The spirit and operation of our laws preclude the adoption of the English methods to any appreciable extent, although it would seem that the abstract makers of the Eastern States still follow as closely as possible in the footsteps of their English predecessors, and their work is usually constructed upon the regu- lation English model. In the Middle and Western States, the operation of the United States land laws; the later methods of survey and subdivision, and the almost total annihilation of many of the old common-law rules relative to the acquisition and trans- fer of estates in land, have caused a wide departure from the con- ventional system expounded by Preston, Moore and other English writers, as well as that now, or formerly, used in the Colonial States. The American abstract is not prepared from the original documents, but from recorded evidences thereof found in the offices of registration, courts, and other legal depositories, and, as a rule, shows only such title as is deducible of record. It is not identical with the English "abstract," as will be seen, and by way of distinction is frequently termed an "examination." Both terms, however, are used interchangeably by the profession and are practically synonymous. In compiling an abstract, the examiner simply collects, con- denses and arranges the information found of record, without any expression as to the rights of any of the parties named therein. The work is then turned over to counsel, who critically examines each instrument shown, or statement made ; decides upon the suffi- ciency and legal effect of the conveyances, noting any defects or irregularities therein, or in any of the proceedings necessary to divest or acquire title; determines the relative rights and legal relations of the parties to the land in question and to each other; and finally formulates his views in a written opinion which is an- nexed to the abstract, and on the strength of which future sales or other dispositions of the property are usually made. §7. Abstracts and Examinations Distingxtished. As before stated the terms abstract and examination in their ordinary ac- ceptation are synonymous, but for the purpose of defining the broad scope of their inquiry, as compared with the narrowness and § 8] PRELIMINARY OBSERVATIONS. 5 singleness of the English method, American abstract makers fre- quently prefer the latter term to designate their wprk. The Eng- lish abstract is largely personal in its object. That is, it seeks to show only the title of some particular individual, rather than the general condition of the title and is usually expressed in the cap- tion to be, "An abstract of the title of John Doe, Esq., to that cer- tain messuage," etc. The nature of English land tenures and the peculiar conditions attending the ownership of real property in that country preclude a showing of the origin or course of title for any considerable period, nor would that, perhaps, be necessary. An English abstract generally commences with some specific docu- ment, as a deed or will, or frequently with a descent, and from this point, called the "root of title," and, covering a period of at least sixty years, shows the successive links that connect the present title of the person proposed with the ' ' root. ' ' ' Obviously, such an abstract, however well it might serve the purpose in England, would be most inadequate in the United States, where several per- sons frequently claim title through different channels from the same source, not to mention the many adverse titles springing from independent sources. "A perfect abstract of title," says Preston, "means a perfect title in the vendor," and "a condition that vendor shall deliver an abstract of title, means," says Sug- den, "the delivery of an abstract showing a good title."* The American abstract, though confined, as a rule, to matters of record, presents a far wider range. While intended primarily to show the present state of the vendor's title, it does not in terms purport such purpose, but is a general inquiry into every matter or thing in any way affecting title to the land, in whomsoever it may rest and however arising or acquired. A "perfect abstract," as that term is understood in the United States, shows the true state of the title, even though it defeats that of the vendor, and one that is defective in any of the particulars heretofore noted is not "per- fect" even though it may show "a perfect title in the vendor." The caption of the American abstract expresses its true purpose: "an examination of title to the N. B. y^," etc. It has none of the personal features that characterize the English abstract, and is decidedly an examination in rem. §8. QuaJiiications of the Examiner. In a recent Minnesota case, Flandrau, J., reviewing the labor and skill necessarily dis- played in the compilation of an abstract, says: "That the making SDeane's Conveyancing, 325; 1 4 2 Sugd. V. & P. 27. Preston on Abstracts, 5. 6 ABSTRACTS OP TITM!. [§ 8 of a perfect abstract of title to a piece of land, with aU the in- cumbrances which affect it, involves a great exercise of legal learn- ing and careful research, no one will dispute. The person pre- paring such an abstract must understand fully all the laws on the subject of conveyancing, descent and inheritances, uses and trusts, devises, and in fact every branch of the law that can affect real estate, in its various mutations from owner to owner, sometimes by operation of law, and again by act of the parties."^ Should the abstract maker, or as we may term him for short, the "exam- iner," possess the varied accomplishments enumerated by the learned judge, he will find it much to his advantage in the prosecu- tion of his work, yet it by no means follows that he may not be- come proficient while lacking many of the essentials above de- scribed. The abstract maker is, in the full sense of the word, a conveyancer, equally with him who draughts and prepares the original instruments. The difference is in degree, not in kind. The same laws which control and direct the conveyancer in the preparation of the originals, operate with equal effect in the com- pilation of the abstract, and a general knowledge of such laws and their application is an indispensable requisite, as are also the principles of surveying and platting. The effect of laws relative to conveyancing, the transfer of estates, the devolution of titles, and the manifold and perplexing questions concerning the rights and interests of parties that may arise under them, are subjects which should properly be left to counsel who is to examine the abstract and pass an opinion upon the title. Occasionally the same person fills both ofBces, though this is rare save in smaller places or sparsely settled districts, and, as a, rule, the union is not pro- ductive of good results. § 9. Examiner's Liability for Error. The degree of intelligence and skill required of a man by the law, depends much upon his calling. A professional man must be specially educated or fitted for the duties of his vocation, and in addition to the requisite technical knowledge must have reasonable skill in its application. So the understanding implied from persons engaged in the busi- ness of searching the public records, examining titles to real prop- erty, and making abstracts thereof for compensation is, that they are possessed of the requisite knowledge and skiU and will exer- cise due and ordinary care in the performance of their duties.' B Banker v. Caldwell, 3 Minn. 94 6 Ohaae v. Heaney, 70 111. 268 ; Lat- and see, Stephenson v. Cone, 24 S. D. tin v. Gillette, 95 Cal. 317. 460, 124 N. "W. 439, 26 L. E. A. (N. S.) 1207. § 9] PEELIMINABY OBSERVATIONS. 7 For a failure in either of these respects, resulting in damages, the party injured is entitled to recover.' Thus, where an abstract purports to state the contents or substance of an instrument the customer is justified in relying upon the statement, without making an original investigation, and is not guilty of negligence in so do- ing. If, in fact, there is an error in the abstract, and through reliance upon it the customer has sustained injury, he may hold the abstracter liable therefor to the extent of the injury sustained, provided the error complained of is such as could have been avoided by the exercise of ordinary care and skill on the part of one possessing qualifications adapted to the business of abstract- ing.' Nor can the abstracter limit his liability by a clause in the certificate appended to the abstract without specially calling his client's attention to it.' It does not seem, however, that the employment involves any elements of guaranty or indemnity further than that raised by the undertaking to bring to the discharge of the duty reasonable skill and dUigenee.^" Thus, he should make a full and true search ; should examine the record of every matter shown upon his own or the public indices which affects the land in question; should ac- curately abstract or digest every instrument or other matter so found and should supplement his search by an explicit statement or certificate of all matters covered by it. He has no right to rely upon index entries or marginal references, but should inspect the record itself, and should he assume the information furnished by index entries or marginal references to be correct he does so at his peril.^^ But to fix the liability of the examiner there must, as a rule, be privity of contract with the injured party, for he can be held answerable for his errors only to the person who has employed him,i2 and where, in the absence of fraud, collusion or falsehood, 7 So held where the examiner had 8 Equitable Bldg. & Loan Assn. v. omitted to note on the abstract a Bank of Commerce, 118 Tenn. 678, judgment against the property for, 102 S. W. 901, 12 L. R. A. (N. S.) taxes, and its subsequent sale to 449; Heinsen v. Lamb, 117 111. 549, satisfy same: Chase v. Heaney, 70 7 N. E. 75. IlL 268; and where a pending at- tachment suit, which afterward cul minated in a judgment, was omitted Security Co. v. Longaere, 56 Neb. 469 and see, Clark v. Marshall, 34 Mo. 429; Bank v. Ward, 100 U. S. 195 Wakefield v. Chowen, 26 Minn. 379 9 Chase v. Heaney, 70 111. 268. 10 Dundee Mtg. Co. v. Hughes, 20 Fed. Hep. 39; Houseman v. Girard Loan Ass'n, 81 Pa. St. 256; Schade V. Gehner, 133 Mo. 252; Rankin v. Schaefifer, 4 Mo. App. 108. 11 Wacek v. Frink, 51 Minn. 282. Smith V. Holmes, 54 Mich. 104. 12 Savings Bank v. Ward, 100 U. 8 ABSTRACTS OP TITLE. [§ 9 the ex;aminer has made an erroneous certificate, upon the strength of which a third person has loaned and lost money, or suffered other injury, no liability will attach, notwithstanding the fact that the money was advanced on the assurances of the abstract, and to the person who had caused the same to be made.^* On the other hand, the owner of land seldom incurs the expense of procuring an abstract of title except for the purpose of thereby furnishing information to some third person who is to be influenced by the information thus provided. Hence, it is contended, if the abstract maker shall in all cases be held responsible only to the person under whose employment he performs the service it is manifest that the loss, if any, occasioned thereby, must, in many cases, be without remedy. Acting upon this line of reasoning we may ob- serve a tendency in some of the cases to extend the abstracter's liability and to give to anyone, who in good faith relies upon the statements of the abstract, a remedy against him for any loss that may have resulted from his errors or omissions.^* The general rule, however, and that sustained by the weight of authority, is as first stated, and in most of the cases that may seem to militate against it there are special circumstances tending to create privity, or such other relation as gives to the injured third party a right of redress.^* ' Where a cause of action is permitted to lie against an abstracter who has furnished an erroneous search or given a wrong certificate S. 195; Dundee Mtg. Co. v. Hughes, party directly employing the ab- 20 Fed. Hep. 39; Mechanics' Bldg. straeter, into privity with his con- Ass 'n V. Whitacre, 92 Ind. 547; tract, and created a duty to him as Houseman v. Bldg. Ass'n, 81 Pa. St. well as to his immediate employer. 257; Morano v. Shaw, 23 L. A. Ann. 14 Dickie v. Abstract Co., 89 379. , J Tenn. 431, 14 S. W. 894; Denton y. 13 Savings Bank v. Ward, 100 XI. Title Co., 112 Tenn. 320, 79 S. W. S. 195; Talpey v. Wright, 61 Ark. 799; Gate City Abst. Co. v. Post, 55 275; Schade v. Gehner, 133 Mo. 252. Neb. 742, 76 N. W. 471; Goldberg v. In this latter case the examination Title Co., 24 S. D. 49, 123 N. W. 266. having been made for a purchaser, In each of these two latter cases a and under employment by him, it was statute, imposing liability for dam- held that a right of action for such ages to any person who might be in- negUgence did not exist in favor of jured, influenced the decisions of the the purchaser's widow and sole de- courts. See also. Crook v. ChUvers, visee and legatee. The court, refer- 99 Neb. 684, 157 N. W. 617; Arnold ring to cases cited in support of a & Co. v. Earner, 91 Kan. 768, 139 contrary view, said that they would Pae. 404. be found to hold that the particular 15 As where a lender, before mak- circumstances of those cases brought ing a loan, informs the abstract maker the party injured, though not the that he will rely upon the abstract. § 9] PEELIMINABT OBSERVATIONS. 9 of title, the right accrues at the time of the delivery of the ab- stract and not at the time the negligence is discovered or the con- sequential damages may arise. ^® Hence, it would seem that the statute of limitations may be pleaded in defense when the statu- tory bar has intervened. It has further been held, that the examiner is under no obliga- tion to show anything not arising within the dates of his examina- tion, even though it be at the time a valid and subsisting lien upon the land; nor is he bound to inquire or state whether the title vested in any grantee during the period covered by his examina- tion was affected by any prior conveyance, or any estoppel grow- ing out of any covenants therein.^'' As a general proposition, it may be said that the relation of con- fidence which subsists between parties engaged in the business of making abstracts of title and those who employ them is not unlike that existing between attorney and client, and they are equally held to a strict responsibility in the exercise of the trust and con- fidence which are reposed in them.^' "With respect to this branch of our subject a distinctioii must further be kept in mind between persons engaged in the business of compiling abstracts as an ordinary occupation and public officers who furnish same as a part of their official duty. Abstracts are frequently made by recorders, clerks and prothonotaries, and in some States their liability is prescribed and regulated by statute. and is told by the latter that he may. money, it was held that this was a Brown v. Sims, 22 Ind. App. 317; republication of the certificate, a re- and see Slewers v. Commonwealth, 87 newal and delivery thereof to the Pa. St. 15, where it was said that for lender, and that the officer was lia- the accuracy and truthfulness of his ble for his negligence in the search, search and certificate a prothonotary 16 Lattin v. Gillette, 95 Cal. 317, was responsible to the persons who and see, Eussell v. Abstract Co., 87 employed him to render the service, Iowa, 233. and not to others; yet where the cer- 17 Wakefield v. Chowen, 26 Minn, tificate was given to the borrower, but 379. In this case the examiner failed the agent of the lender, not being to show a judgment rendered against satisfied, to ascertain whether the cer- one who at the time (prior to the tificate was correct asked the pro- commencement of the examination) thonotary whether it was correct, and had no interest in the subject of the the latter replied that it was, and examination, but who subsequently, took the certificate, and again made and during the period covered by the the search, and returned the certi- search, acquired title to the same, ficate to said agent, saying that it ISVallette v. Tedens, 122 111. 607. was correct, and that there were no "With respect to the liability of at- other judgments, and the agent then, torneys for erroneous opinions, see relying on the certificate, lent the Chap. XXXII, post. 10 ABSTEACTS OP TITLE. [§ 9 Under these statutes such officers are often declared liable for all loss or damage which may happen by reason of any false or er- roneous certificate of search, not only to the person or persons to, for, or upon whose order the said certificate was made or given, but also to any person claiming title through, from or under them, or who may suffer loss by reason of the making of such false or erroneous certificate. But where an officer is not bound to make searches of the records of his office his liability would seem to be measured by the same rules that apply to abstracters generally. ^^ § 10. Character of Examiner's Liability. There exists some confusion with respect to the character of the liability of an ex- aminer who has made an erroneous search resulting in injury to the client, as well as to the remedies that may be resorted to in such a case. The better opinion, however, and that which seems to be supported by legal reason, is that such liability is strictly con- tractual, and, notwithstanding that the examiner may have vio- lated a duty which he owed to the client, and that such violation was an act of culpable neglect, yet such neglected duty was alone imposed by the contract and does not involve a tort in the proper interpretation of that term.*" Upon an undertaking of this kind the examiner owes no duty to the client apart from the contract, and the fact that the contractual act has been negligently per- formed does not change the situation or alter the relation of the parties.^^ §11. Duty of Pumishing Abstract. In England a purchaser may, it seems, require to be furnished with an abstract of the 19 Thus, a clerk of court, not be- which recites that the abstracter has ing bound to make searches of the carefully examined the records of the records of his office for liens, is not offices of the county clerk, the clerk liable to one who purchased land on of the district court, and the county the faith of his certificate errone- treasurer, and that there were of rec- ously stating that there were no liens ord in said offices no liens on the prop- against it. Mallory v. Ferguson, 50 erty except as mentioned in the ab- Kan. 685. straot, is not liable on his bondbe- 20 Thomas V. Guarantee T. & T. Co., cause of the omission from the ab- 81 Ohio St. 432, 91 N. E. 183, 26 L. straet of a prior mortgage of record E. A. (N, S.) 1210. in the office of the register of deeds, 21 Russell V. Abstract Co., 87 Iowa, though the omission was the result of 233, and see, Thomas v. Carson, 46 a conspiracy to defraud between the Neb. 765, where it is held, that an abstracter, . the mortgagor, and the abstracter who gives an abstract prior mortgagee. §11] PRELIMINABT OBSERVATIONS. 11 seller's title, even though he may have already agreed to accept the same, and he may retain such abstract during the negotiations upon, and even after rejection of, the profEered title, until the dis- pute is finally settled, for the purpose of showing the grounds of such rejection.^* It will be remembered^ however, that an English abstract is generally only a digest of the title deeds and muniments relied on by the vendor to establish his claim, and which invari- ably accompany the abstract for examination and comparison. The abstract so furnished, therefore, is rather in the nature of a well-arranged index to accompany documents, and is prepared primarily for their more convenient and systematic perusal. An American abstract, on the contrary, is intended to furnish within itself a full exposition of title, and to obviate the necessity of re- ferring to the original sources of information. In the former case the deeds and muniments are in the hands or under the control of the vendor, and the reason of the English rule is obvious from this fact alone. But in the United States the changed conditions of the evidences of title, the system of registration, the actual and con- structive notice imparted thereby, and the access which the pur- chaser has to information concerning the title, would seem to ren- der inoperative the English rule by removing the reason which occasioned it ; and, while it is customary in this country, as in Eng- land, for the vendor to prepare and furnish an abstract of title, either pending or after consummation of the sale, it does not ap- pear that this can be demanded as a matter of right, but is rather the result of the contract or conditions of sale. In England, where titles are not registered,''^ the vendor, in order to show performance or an offer to perform on his part, whether in an action at law for the purchase money or a suit in equity to compel performance by the vendee, must affirmatively prove his title. In this country, where titles are matters of record, and, at all times open for inspection, a different rule prevails. This doctrine has often been announced in actions by the vendor for the purchase money,*'* and it has been expressly held, in equity, that a vendor may rely upon his tender of conveyance without producing the evidences of his title, the burden being upon the 22 See 2 Sugd. Vend. *39 ; Dart, more general but there is no system Vend. (Am. Ed.) 130. in vogue in that country which cor- 23 Certain kinds of deeds, as a bar- responds with that observed in the gain and sale, were by an early stat- United States. ute required to be "enrolled." Of 24 Little v. Paddleford, 13 N. H. late years registration has become 167. 12 ABSTRACTS OP TITLE. [§ H purchaser to show such a defect as would justify him in refusing to accept the deed.*^ But while the furnishing of an abstract cannot be said to be demandable as a matter of legal right, even where a custom to that effect may prevail, it is nevertheless made a condition pre- cedent, in most sales, by the express agreement of the parties. Where parties make a contract for the sale or exchange of lands which provides for the exhibition of an abstract showing title in the proposing parties by a day named, this is a condition precedent to be performed before either party in case of an exchange, or the vendor in case of sale, can call upon the other to perform the agreement ; and, if the abstract is not satisfactory or fails to show the title agreed to be made, the other may elect to consider the contract at an end.^* If, on the sale of land, it devolves on the vendor to furnish an abstract, on the delivery and acceptance of the deed it becomes the property of the purchaser,*' and so, where the owner of land, about to execute a mortgage, delivers to the mortgagee an abstract of title to the premises, it becomes part of the security for the loan, and the mortgagor is not entitled to the possession of it until the mortgage is paid or discharged.** §12. Taxation of Abstract. Books. Are the indices, and other books of the examiner, employed by him in the preparation of ab- stracts, subject to taxation? Unfortunately, the question has not received a uniform answer from the several courts to which it has been presented. There is no dispute with respect to the general proposition that unpublished manuscripts are not subject to taxa- tion, but the difficulty seems to lie in the character to be accorded to such manuscripts. The statute, generally, requires that aU property shall be returned and assessed at its fair cash value, ex- cept in the case of specific exemptions. Abstract books are cer- tainly property. But, it is said, the provision of the statute means, not only a thing that may be put to valuable uses, but that which has a recognizable pecuniary value inherent in itself, which is not enhanced or diminished according to the person who owns or uses it. Hence, it is contended, abstract books have no intrinsic value. They are valuable only for the information they contain, which is conveyed by consultation or by extracts, and such value is main- tained only by their completeness and continued correction. In- 2» Espy V. Anderson, 14 Pa. St. 27 Chapman v. Lee, 55 Ala. 616. 308; Daily v. Litchfield, 10 Mich. 38. 28 Holm v. Wust, 11 Ab. Pr. (N. 26 Howe V. Hutchison, 105 111. 501. Y.) N. S. 113. § 13] PRELIMINARY OBSERVATIONS. 13 deed, except as they are used they have no value. ^* It is further held, that they resemble in their nature the books which are con- sulted by any person who makes an income from his acquired knowledge, as a surveyor's notes, a lawyer's briefs, a druggist's recipes, and many analogous things. Therefore, while they may be, and are, very serviceable, yet they are not things which the law makes subject to seizure or assessment.'" On the other hand, we find cases which hold that notwithstand- ing abstract books are manuscripts and are not made for publica- tion in the general sense, and which concede that such publication would defeat the very purpose of their production, yet maintain that they are the means, in a sense the instruments, for carrying on a business; that they have a commercial value, and that where a commercial value attaches to an object it becomes property ; that being property they come within the terms of the statute, and, like other property not specifically exempt are subject to the burdens of taxation.'^ It will be seen, therefore, that the question is one of doubt, to be solved by local policy or positive law. §13. Exemption of Abstract Books. Analogous to the ques- tion discussed in the last paragraph is the further question: To what extent, if any, are the books used by an examiner of titles in his business exempt from forced sale on execution? To this ques- tion no decisive answer can be given. It is entirely a matter of local law and statutory construction. In those States where the statute exempts the necessary tools and instruments of "any per- son," used in his trade or business, or by other general terms in- cludes all kinds of occupations and the means whereby such occu- pations are pursued, the books of an abstract maker will be ex- empt.'^ On the other hand, in those States where the exemption privilege is specifically confined to certain classes of occupations, unless the business of abstract making distinctly falls within one of the enumerated classes the books used in such business are not distinguishable from other non-exempt property, and may be seized and sold to satisfy a judgment against the owner.'* 29 Perry v. Big Bapida, 67 Mich. S2 Davidson v. Sechrist, 28 Kan. 146. 324. 30 Dart T. "Woodhouse, 40 Mich. 399 ; 33 See, Tyler v. Coulthard, 95 Iowa, Perry v. Big Rapids, 67 Mich. 146. 705; Bank v. Abstract Co., 15 Wash. 31 Leon Loan, etc., Co. v. Equali- 487. zation Board, 86 Iowa, 127; Booth v. Phelps, 8 Wash. 549. CHAPTER II. TITLE TO HBAIi PEOPEBTT. § 14. Estate and title distinguished. § 21. Powers. i 15. Acquisition of title. § 22. Homesteads. § 16. Caassification of title. § 23. Dower and curtesy. § 17. Sources of title. § 24. Terms of years. § 18. Nature of title in the United § 25. Easements and servitudes. States. § 26. Color of title. § 19. Estates under allodial titles. § 27. Evidence of title. § 20. Uses and trusts. § 28. Alienation and descent. §14. Estate and Title Distingfuished. A well defined and strongly marked distinction has been made by the elementary writers, between the property or interest which one has in lands, tenements and hereditaments, and the authority whereby same are held, or the mode by which they are acquired. This property or specific degree of interest in lands, of whatever kind or nature, is described in the comprehensive term estate. The method of ac- quiring and right of holding same is denominated title. The sub- ject of estates, with their quantities, qualities, extent and other attributes, belongs to a treatise on real property, and will be al- luded to in this work only as they incidentally occur in treating of the manner by which such estates are acquired or held. In the paragraphs immediately following a brief mention wiU be made of the fundamental principles and broad specialized rules which affect the transfer of proprietary rights in land and the devolution of title thereto, and which are incidentally involved in the compilation of abstracts and examination of titles. § 15. Acquisition of Title. It may be stated as an elementary proposition, to which all writers and jurists agree, that there exist but two modes of acquiring title to real property: namely, by descent and by purchase, the latter term including every legal method of acquisition, except that by which an heir, on the death of an ancestor, succeeds to the estate of the latter by operation of law.^ The common law estates of dower and curtesy have been 12 Blk. Com. 241; James v. Moore, 2 Cow. 290; Green v. Blan- char, 40 Oal. 194. 14 § 16] TITLE TO REAL PROPERTY. 15 regarded by some writers as properly coining within the doctrine of descents,^ while others make a distinction, in respect to estates acquired by purchase, between titles created by act of the law, and those created by act of the parties.' §16. Classification of Title. Blackstone makes an elaborate division of title considered in relation to its progressive develop- ment, and formulates the following stages: Naked possession; rigljjt of possession ; right of property without possession, and right of property united with possession.* This classification, which has been followed and approved by most English and many American writers, seems needlessly prolix and a trifle confusing. Judge "Walker in alluding to it says: "Such refinements serve to per- plex rather than inform the mind. The truth is, title means the same thing as ownership. A man may be in possession of a thing which he does not own, and he may own a thing of which he is not in possession," and draws the inference "that the perfection of title consists in the union of possession, with the right of posses- sion. " ^ For purposes of comparison only, titles are sometimes classified as bad, doubtful, good and perfect; the latter being also known as a marketable title, or one which a court of equity considers so clear that it will enforce its acceptance by a purchaser. A doubt- ful title on the contrary being one that the court will not go so far as to declare invalid, but only that it is subject to so much doubt that a purchaser ought not to be compelled to accept it.* The doctrine of marketable titles is purely equitable and of mod- em origin; at law, every title not incurably defective is market- able. It must be distinctly understood, however, that the fore- going classification represents merely convenient colloquialisms. The law knows nothing of "good" or "bad" titles. In fact, they cannot be said to have any legal existence. Title is simply title. A person is without title or he has title. His title may be perfect or impaired, but "bad" title is merely a vulgarism. The fact that many lawyers employ the term does not make it any the less a vulgarism. Nor are there any degrees of comparison in titles, for "good" title suggests a "better," or, possibly, a "best." A more pronounced distinction is made in the case of legal and equitable titles, and their application to estates is of frequent 2 3 Cruise Dig. 317. B Walker 's Am. Law, 317. 8 See 3 Wash. Real Prop. 4; War- 6 2 Bou. Law Diet. 596; Eichmond velle, Eeal Prop. 130. v. Gray, 3 Allen, 25. 4 2 Blk. Com. 195. 16 ABSTRACTS OP TITLE. [§ 16 occurrence in actual practice. Though originally applied only to estates in land, the terms are now extensively used to designate the manner of acquiring and holding same as well. The equitable title usually carries with it the beneficial interest in the land, together with the incidents of ownership, the legal title being held as a mere naked trust, and is illustrated in the relations of the government and a purchaser of public land before patent issues; a grantee under a land contract after payment made and before execution of deed. Where a trust imposes active duties on |he trustee he takes the entire interest in the land and the beneficiary has no title of any kind. The abstract, as a rule, shows only the legal title, unless an equitable title appears from the recitals of the instruments or is plainly deducible from facts appearing on their face. §17. Sources of Title. By a fiction of the English law, the king, as the head and sovereign representative of the nation, is regarded as the original proprietor, or lord paramount of all the land in the kingdom, and the true and only source of title.' From him all the lands in the realm are held, either mediately or imme- diately, by a tenure, of which fealty is the great characteristic. Under the feudal system this element of fealty was inseparably incident to the reversion, which could never be lost to the ultimate lord. The feudal system contemplated a prince — the sovereign, and the people — ^the subjects, but with the assumption of American independence, the people in their collective capacity became sov- ereign, and as such succeeded to the rights and prerogatives for- merly possessed by the king. As a consequence all valid individual title to land in the United States is derived only from the grant of the Federal government, in the case of public lands ; from the State governments of such of the States as entered the Union as sovereign bodies possessed of lands; or, from foreign powers prior to the Eevolution, or the subsequent acquisition of the territory by the government, the vested rights of the land owner being recognized in the latter case by treaty stipulations at the time of the cession, or by subsequent confirmation.* The king not only possessed the original but also the ultimate title, an assumption that has never been made by the Federal government, which parts with all its title by its grant or patent. The people of the States, 7 3 Kent Com. 487; 2 Blacks. Com. graham, 4 Johns. 163; Jaekson v. 51. Hart, 12 Johns. 77. 8 3 Kent Com. 488 ; Jaekson v. In- § 18] TITLE TO REAL PKOPEBTT. 17 however, in their sovereign capacity, are declared to possess the ultimate property in and to all lands within the jurisdiction of the State, the title to which shall fail from defect of heirs,^ though the character in which the State takes is not properly that of a reversioner but rather that of a statutory heir, who succeeds to the property on default of known kindred of the decedent.^" § 18. Nature of Title in the United States. When by the Revo- lution, the domination of the mother country was thrown off, the State, in its sovereign capacity, succeeded to the titles of the king and became the proprietor of all the lands. ^^ But instead of lend- ing them like a feudal lord to an enslaved tenantry, it sold them for the best price they would bring, or, with more than princely generosity, conferred them upon its citizens as a reward for indus- try and courage in the development and settlement of the country, or in recognition of valor and patriotic devotion in its defense. Its patents all acknowledge a pecuniary or valuable considera- tion, and stipulate for no fealty or other feudal incident. "The State islord paramount as to no man's land."^* Though here, as in England, individual ownership in lands can be deduced only from the sovereign — the Crown, the ante-revolutionary. United States, or State governments, — yet, when so acquired it is held in pure and free dllodium., being the most ample and perfect interest that can be obtained in land and denoting a full and absolute ownership; i* "a time in the land without end" ^* with no duties to a superior lord, or services or fealty incident thereto. The allegiance which the citizen owes to the State is frequently spoken of as fealty,^^ but this is an obligation arising from political status, and is as binding on him who owns no land as on him who counts his acres by the thousands. It is an obligation, recip- rocal to protection, resulting from our political relation^, and in no way affects the title to land more than to chattels. ^^ It is, however, a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, how- 9 3 Kent Com. 488 ; People v. Liv- 13 1 Bou. Law Diet. 115 ; 1 Wash. ingston, 8 Barb. 253. Real Prop. 16. 10 Wallace v. Harmstad, 44 Pa. St. 14 Plowden, 555. 492. 15 2 Bou. Law Diet., 585 Art., il Commonwealth v. Alger, 7 Cush. ' ' Tenure. ' ' 82 ; Johnson v. Mcintosh, 8 Wheat. 16 Wallace v. Harmstad, 44 Penn. 584. St. 492; Carlisle v. United States, 16 12 Wallace v. Harmstad, 44 Penn. Wall. 146. St. 492; Van Eansellaer v. Smith, 27 Barb. 157. Warvelle Abstracts — 3 18 ABSTRACTS OF TITliE. [§ 18 ever absolute and unqualified may be his title, holds it under the implied liability, that its use may be controlled and regulated by the State in such a manner as not to interfere with the equal enjoyment by others of their property, nor be injurious to the rights of the community,^'' and subject to such laws as the legis- lature may enact to regulate the mode of conveyance, descent, right of dower or other rights growing out of the domestic rela- tions.^* All property is held subject to those general regulations established by law, which are necessary to the common good and general welfare. §19. Estates under Allodial Titles. The highest estate held by an allodial title is called a fee simple; a name borrowed from the land system of Great Britain, but of far greater import here than there. It signifies an absolute estate of inheritance, clear of any restrictions to particular heirs, and is the largest estate and most general interest that can be enjoyed in land, being the entire property therein, and confers an unlimited power of alienation.^^ Though usually described as above, the estate is comprised in the word "fee," the addition of the word "simple" adding nothing to the force and comprehensiveness of the term.^' A sale of the fee does not include, in the term itself, a sale free from incumbrances, but denotes only the nature of thp estate as distinguished from a lessor or restricted one, and land may be sold in, fee subject to incumbrances, the expression involving no inconsistency.^^ The fine distinctions of the English law in respect to estates have little application in the United States, and the American doctrines on this subject, though regulated by statute in the different States and hence differing some in detail, are com- paratively simple. In addition to the fee, or inheritance, we have estates for life, for years, at will and by sufferance. The estate in fee tail is practically abolished, the entail being limited to the first taker, while the remainder carries the fee. Estates of inheritance and for life are generally denominated freeholds; estates for years, chattels real. 17 Commonwealth v. Alger, 7 Cush. 20 Jacks v. Toussiug, 45 Mo. 167. 53 ; Commonwealth v. Tewkesbury, 11 21 Caal v. Higgins, 23 N. J. Eq. Met. 55. 308. 18 Barker v. Dayton, 28 Wia. 367. lOHaynes v. Bourn, 42 Vt. 686; Warvelle, Beal Prop. 70. § 20] TITLE TO REAL PROPERTY. 19 "With respect to the time of their enjoyment, they are further divided into estates in possession and in expectcmcy; the latter being again divided into estates commencing at a future day, called future estates, and reversions. A future estate is one lim- ited to commence in possession at a future day, either with or without the intervention of a precedent estate, or on the deter- mination, by lapse of time or otherwise, of a precedent estate, created at the same time. When preceded by a particular estate they are generally known as remainders. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised. Future estates, or remainders, are also classed as vested or con- tingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate. They are contingent while the person to whom or the event upon which they are limited to take effect, remains uncertain. As a general rule contingent interests are assignable, devisable and descendible the same as vested interests.^^ In respect to the number and connection of their owners, estates are divided into estates in severalty, in joint tenancy and in com- mon.^^ The estate in joint tenancy has now become very infre- quent and is generally confined to interests held by a number of persons as trustees. It may still be created, however, by the employment of apt words. As a rule, every conveyance or devise of lands is to be deemed a fee simple, if a less estate is not limited by express words, or does not appear otherwise by construction or operation of law,^* and future estates are alienable in the same manner as estates in possession, by deed of bargain and sale without covenants.^* § 20. Uses and Trusts. The ancient doctrine of uses and trusts prevails to a limited extent in the United States, though its effect azKenyon v. See, 94= N. T. 563; 24Leiter v. Sheppard, 85 111. 242. Winslow V. Ooodwin, 7 Met. (Mass.) This is the general statutory rule but 363. in a few States the old commonlaw 23 Estates, in the United States, ideas seem to have been retained and are essentially creations of the stat- a grant or devise without words of in- ute, preserving a general harmony in heritance creates only a life estate in all the States, but frequently widely the grantee. See, Pate v. Bushong, divergent in detail. The statute 161 Ind. 533. should always be consulted in con- 26 Goodel v. Hibbard, 32 Mich. 47 ; struing them. Kenyon v. See, 94 N. Y. 563. 20 ABSTRACTS OF TITLE. [§ 2Q is by no means uniform. A ma,jority of the States, following the example of New York, have abolished passive trusts where the trustee holds only the naked formal title, the whole beneficial interest being vested in the ces-tui que trust, the statute, in such ease, confirming to the beneficiary a legal estate therein of the same quality and duration, and subject to the same conditions, , as his beneficial interest.^^ The doctrine of resulting trusts has been much modified, and, as a rul-}, no implied or resulting trust is effectual to defeat or prejudice the title of a purchaser for a valuable consideration, and without notice of such trust. Express trusts are usually regulated by statute, and are created for the sale of land for the benefit of creditors, legatees, etc., or for the purpose of satisfying any charge thereon; for the collec- tion and application of the rents and profits of land; and for the beneficial interests of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instru- ment. "Where the classes of express trusts are specifically enumer- ated by statute, the creation, for any purpose, of any trust not so enumerated vests no estate in the trustee, though if valid as a power the lands to which the trust relates remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power. No particular form of words is necessary to create a trust, -and effect will always be given to the intention of the parties.*''' §21. Powers. Closely allied to trusts, and partaking some- what of their nature, are powers, the creation, construction and exe- cution of which, are, in a majority of the States, governed by ex- press statutory provisions. A power, as defined, is an authority to do some act in relation to lands, or the creation of estates cherein, or of charges thereon, which the owner granting or re- serving such power might himself lawfully perform, and no per- son is capable, in law, of granting a power, who is not at the same time capable of alienating some interests in the lands to which the power relates. Powers are general or special, and beneficial or in trust. ^^ A power is general when it authorizes the alienation in fee, 26 The above statements are sub- in all the States: 4 Kent's Com. 308; stantiaUy true of aU the States whose Verdin v. Slocum, 71 N. Y. 345. procedure is the same as, or similar 27 Fisher v. Fields, 10 Johns. 495; to, the N. Y. Eevision, and convey- Saylor v. Plaine, 31 Md. 158. anees to use are generally abolished 28 Kent Com. 319; 2 Bou. Law § 22] TITLE TO REAL PROPERTY. 21 by deed, will, or charge of the lands embraced in the power, to any alienee whatever ; and is a simple form of familiar occur- rence. It is special, when the appointee is designated ; or where it authorizes a conveyance of a particular estate or interest less than a fee. A general or special power is beneficial, when no person other than the grantee, has, by the terms of its creation, any interest in its execution. A general power is in trust, when any person, other than the grantee, is designated as entitled to the proceeds, or other benefits to arise from the alienation of the lands. A special power is in trust, when the disposition which it authorizes is limited to be made to any particular persons other than the grantee; or when any class of persons, other than the grantee, is entitled to any benefit from the disposition or charge authorized by the power. A power may be granted by a suitable clause contained in the instrument of conveyance of some estate in the lands to which same relates, or by devise contained in a last will and testament, and may be vested in any person capable in law of holding lands, but cannot be executed by a person not capable of alienating lands holden by such person. A power, technically speaking, is not an estate, but is a mere authority, enabling a person, through the medium of the statute, to dispose of an interest in real property, vested either in himself or in another person,^^ and where a ppwer is executed, the person taking under it takes under him who created the power, and not under him who executes it.*" A power to sell land can only be exercised in the manner and for the precise purpose declared and intended by the donor, and when the purpose becomes wholly unattainable, the power ceases.*^ In the construction of powers, the intention of the parties, if com- patible with law, must govern; and the intention is to be deter- mined from the instrument creating the power.*^ § 22. Homesteads. The statutes of all the States have injected into the law of real property, as applied in this country, a new quality, unknown to the common law, denominated "homesteads." Diet. 356. The classiflcation above 30Legget v. Doremus, 25 N. J. Eq. given is that which is now generally 122. observed in this country, though it 31 Hetzel v. Barber, 69 N. Y. 1. differs somewhat from the common SZGuion v. Pickett, 42 Miss. 77; law classification. Jackson v. Veeder, 11 Johns. 169. 29 Burleigh v. Cloughs, 52 N. H. 268; 2 Prest. Abstracts, 275. 22 ABSTRACTS OF TITLE. [§ ^^ The homestead is usually a constitutionally guaranteed right an- nexed to land, whereby the same is exempted from sale under exe- cution for debt. No uniform rule can be given for its ascertain- ment, it being variously measured either by a definite money value, or a specific area of land. Nor can any general definition of its character be given other than the above, as the authorities are by no means harmonious in prescribing its limits, or defining its effect. In some of the States the homestead is an estate,^' limited only as to its value, and not by any specific degree of interest or char- acter of title in the particular property to which it attaches, and when the worth of the property does not exceed the statutory valuation, the estate embraces the entire title and interest of the householder therein, leaving no separate interest in him to which liens can attach or which he can alien distinct from the estate of homestead.^* Such estate has also been regarded as a determin- able fee.^* The right of homestead, in a majority of the States, is held to be but a privilege of occupancy against ereditors,^^ the continu- ance of which depends upon the continuance of prescribed condi- tions.^'' When once acquired it is a vested right,^* though it seems it may be impaired by subsequent legislation,^^ and can be lost only by abandonment.*" The homestead law does not vest in the owner any new rights of property but simply imposes restrictions on the creditor in seeking satisfaction for his debt,*^ and the pro- tection afforded by it attaches to an equitable title with the same force as to the legal title.*^ Where there is an abandonment, with a fixed intention not to return, the homestead may be subjected to the demands of creditors, but the question is almost exclusively one of intent, and absence for an indefinite period is not sufficient to establish the fact of an abandonment, unless accompanied with proof of intent not to return.*^ In every State special restrictions have been placed on the alienation of the homestead, it being in contemplation of law the last retreat and shelter of the family; and though its sale is per- 33Littlejohn v. Egerton, 77 N. C. 38 Barret v. Messaer, 30 Tex. 604; 379; Eldridge v. Pierce, 90 111. 474; Barber v. Eoarbeck, 36 Mich. 399. Jenkins v. Volz, 54 Tex. 636. 39 Harris v. Glenn, 56 Ga. 94. SlMerritt v. Merritt, 97 111. 243. 40 Carr v. Eising, 62 III. 14; Crook 3BPoe V. Hardie, 65 N. 0. 447; v. Lunsford, 2 Lea (Tenn.) 237. Haslam v. Campbell, 60 Ga. 650. 41 Bank v. Green, 78 N. C. 247. S6Brame v. Craig, 12 Bush (Ky.), 42 Allen v. Hawley, 66 111. 164; 404; Casebolt v. Donaldson, 67 Mo. Smith v. Chenault, 48 Tex. 455. 308; Drake v. Kinsell, 38 Jlioh. 232. 43 McMillan v. Warner, 38 Tex. 410; 37 Hill V. Pranklin, 54 Miss. 632. Potts v. Davenport, 79 111. 455. § 23] TITLE TO EEAL PKOPEETT. 23 mitted the voluntary act of either husband or wife, or both, would be ineffectual for that purpose, except in the manner provided by statute,** and, as a rule, the alienation of homestead property by either spouse without consent of the other is an absolute nullity, the purchaser acquiring no title whatever.** When a party derives title to property in good faith, and in the prescribed methods, through one who has a homestead right therein, he will, it seems, succeed to his grantor's rights, and take the property exempt from his grantor's debts.*® In many examinations the questions raised with respect to homesteads are very important. §23. Dower and Curtesy. One of the common law incidents of real property is dower, being that provision which the law makes for a widow out of the lands or tenements of her deceased husband, for her support and the nurture of her children.*'' The common law right of dower no longer exists, however, in a ma- jority of the States, the rights of the surviving wife in- the real estate of her deceased husband being those created by statute alone, and questions arising upon them must be determined solely by reference to the statute.*' . No uniform measure, either as to quan- tity or quality, has been adopted, but in the main the estate con- ferred conforms to that of the common law and consists of the use by the widow, during her life, of one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage. During the lifetime of the husband, the wife has only an in- choate right, which is not an estate in the land but a mere con- tingent interest that attaches to the land as soon as there is the concurrence of marriage and seizin. This interest becomes fixed and certain upon the death of the husband, and after the assign- ment of dower develops into a freehold estate in land.** During the marriage no act of the husband alone could, at common law, bar or extinguish this interest, which in England was accomplished only by levying a fine or suffering a common recovery.*" In the 44Fiege v. Garvey, 47 Cal. 471; 474; Leupold v. Kruse, 95 lU. 440; Balkum v. Wood, 58 Ala. 642. Carhart v. Harshaw, 45 Wis. 340 ; Hol- 45 Rogers V. Eenshaw, 37 Tex. 625 ; land v. Kreider, 86 Mo. 59. Abell V. Lathrop, 47 Vt. 375; Bar- 47 2 Black. Com. 130; 4 Kent Com. nett V. Mendenhall, 42 Iowa, 296; 35. Biehards v. Green, 73 111. 54; Bank v. 48Gaylord v. Dodge, 31 Ind. 41. Lyons, 52 Miss. 181; Miller v. Marx, 49 Elmdorf v. Loekwood, 57 N. Y. 55 Ala. 322. 322. 46 Shackelford v. Todhunter, 4 111. 60 2 Black. Com. 137; 4 Kent's App. 271; Adrian v. Shaw, 82 N. C. Com. 51. 24 ABSTEACTS OF TITLE. [§ ^3 United States a woman may be barred of her dower by jointure settled on her before marriage, or by joining with her husband in a deed of conveyance, properly acknowledged.^^ Before dower has been assigned, it can be released only to the owner of the fee, or to some one in privity with the title by his covenants of warranty. But where the former owner of the fee in land in which dower rights still exist, has conveyed the same with warranty, he may purchase the right for the benefit of his grantee, however remote, and thus prevent a breach of the cove- nants.*^ The release of dower which a married woman makes by joining with her husband in a conveyance of his land, operates against her only by estoppel, and can be taken advantage of only by those who claim under that conveyance,** and if the conveyance is void, or ceases to operate, she is again clothed with the right which she had released. During coverture, the wife's inchoate right of dower is incap- able of being transferred or released, except to one who has al- ready had, or by the same instrument acquires an independent interest in the estate.** The right is not such an estate as can be leased or mortgaged,** neither can a married woman bind herself personally by a covenant or contract affecting her right of dower during the marriage. Hence, a deed executed by husband and wife with a covenant of warranty, does not estop the wife from setting up a subsequently acquired title to the same lands.** The inchoate right of dower not being the subject of conveyance in any of the usual forms by which real property is transferred, and the doctrine of estoppel by which subsequently acquired titles are made to inure to the benefit of former grantees being inapplicable, it follows that a grantee or mortgagee claim- ing under an instrument executed by a woman during coverture acquires no title or interest in the dower of the grantor or mortga- gor when the estate becomes absolute, whether dower has been assigned or not.*'' But in all eases where the wife unites with her husband in a conveyance, properly executed by her, which is ef- Bl 4 Kent Com. 60 ; Elmdorf v. 55 Croade v. Ingraham, 13 Pick- 33. Lockwood, 57 N. Y. 322. 56 Jaekson v. Vanderheyden, 17 62 La Framboise v. Crow, 56 111. Johns. 167. 197. 57 Marvin v. Smith, 46 N. Y. 571; SSMaUoney v. Horan, 49 N. Y. Ill; Carson v. Murray, 3 Paige, 483. It Loekett v. James, 8 Bush (Ky.), 28; will be understood that the statement French v. Crosby, 61 Me. 502. of the text has no reference to lands BlEobinson v. Bates, 3 Met. 40; held by a married woman in her own Tompkins v. Fonda, 4 Paige, 448. right. § 24] TITLE TO REAL PROPERTY. 25 fectual and operative against the husband and which is not super- seded or set aside as against him or his grantee, her right of dower is forever barred and extinguished, for all purposes and as to all persons.^* Tenancy by the curtesy has been generally abolished and the husband takes a statutory allowance from the deceased wife's estate, the quantity and quality varying in the different States. Tenancies in dower or curtesy stand, like all other estates of free- hold for life, necessarily subjected to the charges, duties and serv- ices to which the estate may be liable, in proportion to the interest therein.^8 In the examination of titles dower is an important inci- dent and always raises an inquiry in every conveyance not of an ofScial nature. § 24. Terms of Years. Next to a fee simple, the most common estate known to our law is an estate for years, being a right to, or contract for, the possession and profits of lands in consideration of a recompense, called rent.*" Estates for years, for life, and at will or by sufferance, are frequently called "tenancies," because the holders thereof are regarded as mere occupants, while the ulti- mate title remains in the proprietor of the fee. This, however, is not strictly exact, as every owner of an estate is, in law, a tenant, that is, a holder, without reference to the quantity or quality of the interest. But in common parlance the owners of leasehold in- terests are generally called tenants as distinguished from owners of indeterminate interests or estates. In estates for years, the time as weU as the estate itself are both called a term<. Such an estate is not properly an interest in the land, but only a right to the use and possession thereof for a definite period, hence a tenant is not said to be seized of the land, but only possessed of the term. The estate is of frequent occur- rence in the examination of titles, and often rivals in dignity and importance the fee itself. It is created by an instrument called a lease, and is terminated by its own limitation; by forfeiture, in consequence of a breach of some express stipulation or covenant; or by operation of law, termed a merffer, where the tenant by any means becomes seized of the fee of the reversion. The tenancy may also be terminated by a surrender of the lease to the landlord, or where the subject-matter of the lease wholly perishes. The tenant is never permitted, for reasons of sound public policy, to controvert his landlord's title, nor to set up against him a title SSElmdorf v. Lockwood, 57 N. Y. 69 Peyton v. JefEries, 50 111. 143. 322. 60 4 Cruise, Dig. 51. 26 ABSTRACTS OF TITLE. [§25 acquired by himself during his tenancy which is hostile in its character to that which he acknowledged in accepting the demise. §25. Easements and Servitudes. An easement has been de- fined as "a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner. ' ' ®^ This perhaps, is as good a definition as can be framed. Easements are as various as the exigencies of domestic convenience or the pur- poses to which buildings and land may be applied, and are created by grant, confirmation, reservatioii or prescriptive user. The owner in fee of land may impose upon it any burden, however in- jurious or destructive, not inconsistent with his general right of ownership, if such burden be not in violation of public policy and does not injuriously aflEect the rights or property of others.^^ An easement may be created, or reserved by an implied grant, when its existence is necessary to the enjoyment of that which is expressly granted or reserved, upon the principle that, where one grants anything to another, he thereby grants him the means of enjoying it, whether expressed or not,®* but easements exist as ap- purtenant to a grant of lands only by reason of a necessity to the full enjoyment of the property granted.®* Nothing passes by im- plication, or as incident or appurtenant, except such rights or privileges, as are directly necessary to the proper enjoyment of the granted estate, and the necessity measures the extent and dura- tion of the right. When the necessity ceases, the rights resulting from it cease. ®^ It must be an actual and a direct necessity. A mere convenience is not sufficient to create or convey a right or easement, or impose burdens on lands, other than those granted, as incident to the grant.®® When established, however, an ease- ment of necessity passes with each successive transfer of the title to the dominant estate, whether voluntary or involuntary.®'' Basements of necessity, when the title to the dominant estate and to the servient estate unite in a common owner, are merged and lost. On separate conveyances of the estates by the common 61 Wash. Eeal Prop. 25 ; Meek v. 65 Hancock v. Wentworth, 5 Met. Breckenridge, 29 Ohio St. 642. 446; Carey v. Rae, 12 Eep. 523. 62 Van Bensselser v. K. E. Co., 1 66 Ogden v. Jennings, 62 N. Y. 526 ; Hun (N. T.), 507. Holmes v. Seely, 19 Wend. 507; War- 63 Lanier v. Booth, 50 Miss. 410; ren v. Blake, 54 Me. 276; Carey v. Pingree v. McDufCe, 56 N. H. 306; Rae, 12 Reporter, 523. DiUman v. Hoffman, 38 Wis. 559. 67 Proudfoot v. SafBe, 62 W. Va. eiWoodworth v. Raymond, 51 Conn. 51, 57 S. E. 256, 12 L. B. A. (N. S.) 70. 482. § 26] TITLE TO EEAIj propektt. 27 owner, such easements are not revived, nor treated as having ex- isted during the time the two estates were in the common owner, but are re-created by the conveyance of the estates separately, and arise from the application of the rule above stated.^* In respect to the acquisition of easements by user, no universal rule of law as to the effect of evidence of particular facts can be laid down, and when established by prescription, or inferred from user, such easements are limited to the actual user. A right claimed by user is only co-extensive with the user.^* Open and continuous use, without hindrance or objection, for more than twenty years will generally establish an easement by prescrip- tion.''" Special easements are created by grant or confirmation, or may be reserved by special reservation in a conveyance of lands, and easements created in this manner do not cease, even though the necessity for them may have ceased.'^ A license is an authority to enter upon the lands of another and do a particular act or series of acts, without possessing any interest in the land. A claim for an easement must be founded upon a grant, by deed or writing, or upon prescription which presupposes a grant, for it is a permanent interest in another's land; but a license, conveying no estate or interest, may be by parol. It is founded in personal confidence, is not assignable, and if. executory is revocable at the pleasure of the grantor. The distinction, how- ever, is quite subtle, and it becomes difficult, in many cases, to dis- cern a substantial difference between them.'^ In the examination of titles easements of record are readily ascertained, but, as an easement may exist without an express grant, the attention of clients should always be directed to the inci- dents, situation and condition of the land, and particularly to the rights of persons in possession or exercising acts of ownership. § 26. Color of Title. A title may be actual or merely colorable. A person is properly said to have color of title to lands when he has an apparent though not a real title to the same, founded upon a deed which purports to convey them to him,''^ and a claim to 68 Miller v. Lapham, 44 Vt. 416. 71 Atlanta Mills v. Mason, 120 69 Brooks v. Ourtis, 4 Lans. (N. Mass. 244. Y.) 283. TOMumford v. Whitney, 15 "Wend. 70 Mann v. Reigler, 33 Ky. L. 744, 380; Thompson v. Gregory, 4 Johns. Ill S. W. 300, 18 L. E. A. (N. 8.) 81; 3 Kent Com. 452. 131; Barry v. Edlaviteh, 84 Md. 95, 78 Seigneuret v. Fahey, 27 Minn. 35 Ati. 170, 33 li. B. A. 294. 60; Eigor v. Frye, 62 HI. 507. 28 ABSTRACTS OP TITIjE. [§26 real property under such a conveyance, however inadequate it may be to carry the true title, or however incompetent the grantor may be to convey such title, is strictly a claim under color of title.'* Possession under color of title for the period of statutory limita- tion, confers upon the holder a perfect title in law, and where nne takes possession under a deed giving color of title, his possession may be transferred to subsequent parties, and the possession of the different holders may be united so as to make up the statutory period, the operation being technically called tackingP^ Titles acquired in this manner must, however, show connected possession, and a privity of grant or descent. Those who hold lands inde- pendently of previous holders, their several possessions having no connection, cannot so tack their possession as to avail themselves of that which has gone before.''® §27. Evidences of Title. There is, strictly speaking, but one species of title to lands, and th^t the legal title. Individuals may possess equities of recognized potency, but such equities, after all, do not constitute title, although they may carry with them the right to the title and the entire beneficial interest. Courts of equity may grant relief to the holders of such equities, but at law the legal title must always prevail.'" A sale of real property, whether judicial or voluntary, does not pass title, but only gives a right to a conveyance of the land ac- cording to the terms of sale,""* and the purchaser cannot be treated as the legal owner of the property, until it has been duly trans- ferred to him by a deed executed by proper authority.'" The evi- dences of legal title consist of voluntary grants by the sovereign, or individual ; conveyances resulting from judicial proceedings, or made in the exercise of the taxing power of the State; deeds exe- cuted by trustees or other ministerial ofiScers; regular descents in the manner provided by law; or continuous possession which pre- supposes some one of the other methods. § 28. Alienation and Descent. The Constitution of the United States declares that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory 74Edgerton v. Bird, 6 Wis. 527; 78 Semple v. Bank, 5 Sawyer (G. Hinkley v. Greene, 52 111. 223. Ct.) 394. 75 Cooper V. Ord, 60 Mo. 420. 79 Page v. Eogers, 31 Cal. 294; 76 Orispen v. Hannavan, 50 Mo. 536. Smith v. Colvin, 17 Barb. 157. 77Bagnel v. Broderiek, 13 Pet. 436; Fenn. v. Holme, 21 How. 481. § 28] TITLE TO RE All PROPERTY. 29 and other property belonging to the government, and under this provision the sale of the public lands has been placed by statute under the control of the Secretary of the Interior. To aid him in the performance of this duty, a bureau has been created, at the head of which is the commissioner of the General Land Office, with many subordinates. To them, as a special tribunal. Congress has confided the execution of the laws which regulate the disposal and general care of these lands, and has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen.*" Congress has the sole power to declare the effect and dignity of titles emanating from the United States,'^ and the States cannot interfere with the primary disposition of the soil by the general government. Whether a title to a tract of public land has passed from the United States, is a question depending solely upon statutes enacted by Congress. After title has passed from the government the land becomes subject to the laws of the State in which it lies,** and to the laws of such State recourse must be had for the rules which govern its descent, alienation and transfer, as well as for the effect and con- struction of its conveyances.** All the means by which the title to real property is transferred, whether by deed, by will, or by judicial proceeding, are subject to, and may be governed by, the legislative will of the State in which it lies,** except where such law impairs the obligation of a contract, and all the laws of a State existing at the time a conveyance or contract is made, which affect the rights of the parties to the same, enter into and become a part of it.** The State possesses the sole power to regulate the modes of transfer and the solemnities which accompany them, and title can be acquired, transferred or lost only in accordance with such regulations.*® In some States, however, the rule as above stated has been so modified by statute that lands may be as effectively conveyed by conforming to the law of the place where the deed is executed and acknowledged.*'' In the latter case proof of such conformity should accompany the deed or other instrument of con- veyance. 80 United States v. Schurz, 102 TJ. 577; McCormick v. SuUivant, 10 S. 378. Wheat. (U. S.) 192. 81 Bagnell v. Broderick, 13 Pet. (U. 84 Osborn v. Adams, 18 Pick. S.) 436. ' (Mass.) 245. 82 Wilcox T. Jackson, 13 Pet. (TJ. 85 Brine v. Ins. Co., 96 V. S. 627 ; S.) 498. Bronson v. Kiiizie, 1 How. 311. 83MeGoon v. Scales, 9 Wall. (IT. 86 Story's Conf. Laws, 708. S.) 23; Clark v. Graham, 6 Wheat. 87 Hoadley v. Stephens, 4 Neb. 431. CHAPTER ni. TITLE BY DESCENT. § 29. Nature of the title. § 33. Adoption. § 30. . Eules of descent. § 34. Proof of heirship. § 31. Consanguinity. § 35. Proof of death. § 32. Affinity. § 36. Conveyances by heirs. §29. Nature of the Title. Descent, or hereditary succession, is the title whereby one person, upon the death of another, suc- ceeds to or acquires the estate of the latter as heir at law, the estate so derived being called an inheritance.'^ Though of universal observance, inheritance is not a natural right but is purely statu- tory, and therefore arbitrary, absolute and unconditional.^ An heir at law is the only person who, by the common law, becomes the owner of land without his own agency or assent, the law castr ing the title upon him without regard to his wishes or election, and when the right of inheritance is fully established by strict com- pliance with the law relating to descents, proof of heirship, etc., the title thus conferred is of the highest dignity and effectual for aU purposes. In the absence of probate proceedings or a judicial determination of the rights of the heirs, titles depending on descent are to be viewed with jealousy and accepted with caution, and particularly will this be the case where title is asserted through descent by an heir in a remote degree from the intestate or com- mon ancestor. The title to the land of an intestate vests immediately in the heir who holds same in his own right, but charged with the pay- ment of the ancestor's debts,' and until finally settled in the pro- bate court the estate is liable to be defeated by a sale made in due course of administration, becoming absolute only after the debts are extinguished.* The heirs are said to take per capita or per stirpes, that is direct, or in their own right, they standing in equal degree, and receiving 1 2 Black. Com. 201 ; 4 Kent Com. 4 Vansycle v. Richardson, 13 111. *374. 171 ; Wilson v. Wilson, 13 Barb. 252 ; 2 Tyler v. Reynolds, 53 Iowa, 146. Biokford v. Stewart, 55 Wash. 278, SWalbridge v. Day, 31 lU. 379; 104 Pac. 263, 34 L. R. A. (N. S.) Chubb V. Johnson, 11 Tex. 469. 623. 30 § 30] TITLE BY DESCENT. 31 equal shares ; or, by right of representation, where the descendants of a deceased heir take the same share or right in the estate of an- other person that their ancestor would have taken if living. Post- humous children are considered as living at the death of their parents and participate as such.^ Inheritance only accrues to the issue of lawful wedlock, but all the presumptions of law are in favor of legitimate birth,^ and an illegitimate child is generally considered as the heir of its mother.'' The descent of real property and the order of succes- sion is governed by special statutes known as "rules of descent," and which vary in every State. §30. Rules of Descent. "The English law of descent" says Chancellor Kent,* "is governed by a number of rules, or canons of inheritance, which have been established for ages, and have regu- lated the transmission of the estate from the ancestor to the heir, in so clear and decided a manner, as to preclude all uncertainty as to the course which the descent is to take. But in the United States, the English common law of descents, in its most essential features has been imiversally rejected, and each State has estab- lished a law of descent for itself. ' ' The laws of the several States, while preserving a general agreement in their essential outlines, yet differ materially in detail, and it is doubtful if any two of them are exactly alike, a circumstance that has induced a dis- tinguished writer on this subject to say, that "this nation may be said to have no general law of descents, which probably has not fallen to the lot of any other civilized country. " ' No attempt will be here made to summarize or explain the regulations of de- scent in the various States, but in the course of his investigations, the examiner will frequently have to refer to them for assistance in unraveling knotty points or snarls in the tangled skein of title. The transmission of property by hereditary descent, from the parent to his children, is the dictate of the natural affections, and forms the first rule of inheritance in every State, varied in some cases, however, by the equal participation of the widow. Prom this point on there is no uniformity, but, as a rule, the lineal kin- dred take in preference to the collateral. If the descendants all stand in the same degree of consanguinity they take equally, other- 6 4 Kent Com. 412; Morrow v. 8 4 Kent Com. *374. Seott, 7 Ga. 535. 9 Eeeve on Descent, pref. 6 Pox V. Burke, 31 Minn. 319. 7 Miller v. Williams, 66 111. 92. This matter is statutory. 32 ABSTRACTS OP TITlUE. [§30 wise by right of representation, and if there be no heirs, the prop- erty escheats to the State. The degrees of kindred are usually com- puted in the United States, according to the rules of the civil law ; and the kindred of the half-blood inherit equally with those of the whole blood, in the same degree, unless the inheritance be ancestral, in which case, as a general proposition, those who are not of the blood of such ancestor are excluded. The last mentioned rule has been enacted substantially in most of the States, but is held to refer to the immediate and not to a remote ancestor.^" §31. Consanguinity. The relation subsisting among all the different persons descending from the same stock or common an- cestor, is called consanguinity, and is the medium through which, in the descent of real property, the several degrees of kindred are computed and deduced. Consanguinity is lineal or collateral; the former being the relation which exists among persons where one is descended from the other, as between father and son, in the direct line of descent; the latter is the relation subsisting between persons descended from the common ancestor, but not from each other, as between brother and sister. There are two methods of computing the degrees of consanguinity, known respectively as the civil,, and common law methods, the latter being also the same as the canon law. The rule of the civil law is generally used in this country, and is preferable for that it points out the actual degree of kindred in all cases. This mode of computation begins with the intestate, and ascends from him to the common ancestor, and descends from such ancestor to the next heir, reckoning a degree for each person, both ascending and descending, and the degrees they stand from each other is the degree in which they stand related. According to this rule of computation it will be seen, the father of the intestate stands in the first degree, his brother in the second, his nephew in the third, etc. By the common law method of computation, different relations may stand in the same degree, and the degrees are counted the same whether lineal or collateral. The mode of the common and canon law is to discover the common ancestor, and beginning with him to reckon downwards, and the degree the two persons, or the more remote of them, is distant from the ancestor, is the degree of 10 Buckingham v. Jacques, 37 Conn. Appeal, 43 "Wis. 167; Ryan v. An- 402; Cfuxren v. Taylor, 19 Ohio, 36; drews, 21 Mich. 229. Larder v. Collins, 2 Pet. 58 ; Cramer '3 § 33] TITLE BY DESCENT. 33 kindred subsisting between them.^^ By this means the father and brother of the intestate, or person proposed, stand in the same de- gree. By the civil law the father stands in the first degree, the brother in the second. So by the common law the first cousin stands in the second degree ; by the civil law he would stand in the fourth. The line of ancestry is classed as ascending or descendjing , taking the person proposed as the unit, and is further classified as paternal or wMternal, according as the examination may lead through the father or the mother. In England, a fair ability to trace gene- alogy is an indispensable requisite of the examiner, as, owing to the non-probate of real estate wills until very recent years, a pedigree always accompanies an abstract showing a descent. The matter is of much less importance in the United States, as in all properly conducted probate proceedings a table of heirship is al- ways found. As an illustration of the subject under discussion, a diagram of the degrees of consanguinity, according to the civil law, is given on a succeeding page. §32. Affinity. The relationship or connection arising in con- sequence of marriage, which exists between each of the married persons and the kindred of the other, is termed affinity, and is dis- tinguished from consanguinity which is used to denote the ties of blood. At common law the relationship of affinity is not sufficient to obtain legal succession or inheritance, but by statute, in some States, the surviving husband or wife has been endowed with in- heritable qualities and either may take as an heir of the other ac- cording to the prescribed rules of descent ; and in the sense that an heir at law is simply one who succeeds to the estate of a deceased person, the surviving wife may be said to be an heir of her de- ceased husband.^* §33. Adoption. Adoption is a juridical act creating between two persons certain relations, purely civil, of paternity and filia- tion. The legal adoption by one person of the oif-spring of another, giving him the status of a child and heir of the parent by adoption, was unknown to the common law, although long recognized by the civil, and is of comparatively recent date in the United States. The act of adoption is the creation of an artificial relation, made in conformity with and regulated by positive statute, in the light of 111 Bou. Law Diet. 327; 2 Black. 18 MoKiimey v. Stewart, 5 Kan. Com. 202. 384; Steel v. Kurtz, 28 Ohio St. 192. Warvelle Abstracts — 3 34 ABSTEACTS OF TITLE. [§ 33 which the new rights and obligations thus derived are to be solely construed.^^ There is a lack of uniformity in the statutes enacted by the States, yet, in the main they agree in conferring on the person so adopted the rights of inheritance and succession, and other legal consequences and incidents of the natural relation of parent and child, the same as if such child had been born in lawful wedlock of such parent by adoption, but, as a rule, restrict such child from taking property expressly limited to the body or bodies of the parents by adoption, and in some instances from taking from the lineal or collateral kindred of the parents by right of representa- tion.^* The right of inheritance thus secured is further restricted to the adopted parent and precludes an inheritance from the actual children of such adopted parent,^* while the right of inheritance by the adoptive parents from the child is confined to such prop- erty as he had received through them, and, as a rule, they are expressly prohibited from inheriting any property which the child received from his own kindred by blood.^® As against the adopted child, the statute should be strictly construed, being in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession according to nature, which has prevailed from time immemorial. It will thus be seen how important a succession through adop- tion may become in the determination of land titles, and the strict- ness necessary on the part of examiner and counsel in the investi- gation of questions of this nature. Where title is claimed through a descent by adoption, a general summary of the proceedings creating the relation should appear and the full and perfect title of the adoptive heir should be deducible of record and in strict conformity to the statute. The rights of inheritance acquired by an adopted child under the laws of a particular State are recog- nized and upheld in every other State, so far as they are not in- consistent with its own laws and policy,^'' but in the absence of statutory directions the general rules of descent must govern as in other cases.^* ISKeegan v. Geraghty, 101 111. 26; 16 Keegan v. Geraghty, 101 111. 26; Long V. Hewitt, 44 Iowa, 363 ; Tyler see, also, Reinders v. Kappelmann, 68 V. Eeynolda, 53 Iowa, 146. Mo. 482. 14 Hockaday v. Lynn, 200 Mo. 456, 17 Ross v. Ross, 129 Mass. 243. 98 S. W. 585, 8 L. R. A. (N. S.) 117. 18 Reinders v. Kappelmann, 68 Mo. 15 Baruhizel v. Terrell, 47 Ind. 335 ; 482. Keegan v. Geraghty, 101 111. 26. TITLE BY DESCENT. 35 DEGREES OF CONSANGUINITY ACCORDING TO THE CIVIL LAW. (Paternal Line.) IV. Gt. Gt. Grand- father. III. Great Grafid/aiher. II. Grand/atker. I. Fatker. O. Intestate. I. Son. II. Grandson. 111. Great- grandson. V. Great- granduncle. IV. Great-ujicle, III. Uncle. II. Brother. V. Great-uncle'' s Son. IV. Cousins-ger- III. Nephew. VI. 2d Cousin. V. Tst Cousin^ s Son. \ IV. Nepkew^s Son. 36 ABSTBACTS OF TITLE. [§ 34 §34, Proof of Heirship. Though title vests in the heir by operation of law immediately on the death of the ancestor, yet purchasers desire, and should have, affirmative evidence that the person asserting such title is justified in so doing, and this is fur- nished by the proceedings of the probate court. In all abstracts the interval of title between the deed by which the decedent be- came seized and that which purports to be a conveyance by the heirs, should be filled by a summary or abridgement of the pro- ceedings in probate, showing the death of the intestate, proof of heirship by those asserting title, and a satisfactory settlement of the estate, for until all this has been accomplished the title of the heirs is liable to be defeated by a sale made by the administrator, as will also the title of one purchasing from them.^* This is a necessary result of the rule of law, that the intestate's property is primarily holden for the payment of his debts, and may be sold by his administrator for that purpose. Such a sale necessarily defeats all hereditary titles. § 35. Proof of Death. The recitals of the essential facts neces- sary to confer jurisdiction, in the decrees and judgments of courts of exclusive though of limited jurisdiction, are prima facie evi- dence of the facts so recited. Upon this principle it has been re- peatedly declared that the grant of letters testamentary or admin- istration is competent evidence of the death of the testator or in- estate,^" and in support of titles claimed by descent is of the high- est character of evidence of title in the heir. Usually no other proof will be required or need be shown. §36. Conveyances by Heirs. Few titles are to be accepted with greater caution, than those asserted, and purported to be conveyed, by persons claiming to be the heirs at law of the per- sons last seized, in the absence of full compliance with prescribed regulations concerning the descent and distribution of intestate estates. Too frequently, from various motives, no probate is ever had, and the children, or other heirs, of the decedent unite to con- vey their interests describing themselves in such conveyance as "children and heirs at law" of such decedent. In England, a pedigree would accompany a conveyance of this character, fixing, by reference to the rules of descent, the nature and extent of the interest owned by each heir. In the United States, the paucity of 19 HiU V. Treat, 67 Me. 501. Welcli v. E. E. Co., 53 N. Y. 610 ; ZOComstook V. Crawford, 3 Wall. JefEers v. Badcliff, 10 N. H. 242. 396; Belden v. Meeker, 47 N. Y. 307; § 36] TITLE BY DESCENT. 37 family records and the method of compiling same, would render a pedigree of little value, even were they in use, and the examin- ing counsel, if doubts arise, usually resorts to the doubtful alterna- tive of an affidavit to prove the fact of heirship and bolster up the title, the afBdavit, in many instances, being entitled to less cre- dence than the deed it supplements. A title resting on no better foundation thanra deed of this character, unless reinforced by the statute of limitations, is entitled to little consideration, and is liable to be defeated at any time before the bar of the statute has interposed. Nor can the purchaser know, unless personally cog- nizant of the facts, that all the heirs have united in the convey^ anee, or that they are qualified to convey; or that a widow's dower may not greatly depreciate the value of the property thus ac- quired. In this country, where all the heirs are allowed an equal repre- sentation_, partition is frequently made by the heirs between them- selves without the intervention of a court, and while such parti- tions are regarded as valid, yet when made of an unprobated estate confusion and uncertainty are greatly augmented, and purchasers should decline the title thus derived as affording no measure of safety. Where affidavits are resorted to to prove heirship, death of ancestor, etc., they should be well authenticated as well as posi- tive in their averments; but however well framed they may be, they afford evidence of the lowest order only. Where partition is the result of a regular judicial proceeding the foregoing observa- tions do not apply, even though there has been no probate of the ancestor's estate. In all properly conducted suits for partition a proof of heirship is required before division and the fact of heir- ship must be found by the decree entered in the suit. CHAPTER IV. TITLE BY PURCHASE. 37. Nature of the title. §48. Riparian titles. 38. Deed. §49. Dedication. 39. Devise. §50. Confirmation. 40. Public grant. §51. Occupancy. 41. Estoppel. §52. Abandonment. 42. Technical estoppel. §53. Eminent domain. 43. 44. Equitable estoppel. Relation. §54. Title acquired by eminent do- main. 45. Prescription and limitation. §55. Escheat. 46. Accretion and reliction. §56. Confiscation. 47. Avulsion. §57. Forfeiture. § 37. Nature of the Title. Purchase is a generic term which includes every mode of coming to an estate, except by inheritance, though in its more limited sense it is applied only to the acquisi- tion of lands by way of bargain and sale for money or other con- sideration. Neither law writers nor courts seem to have ventured on a more extended definition, if indeed one can be framed, and the one above given has come down unchanged from Blackstone, who in turn borrowed it from earlier writers. There are four principal methods recognized of acquiring title by purchase, to wit: by deed, devise, prescription or limitation and escheat. To these may be added title accruing through opera- tions of nature ; as accretion, reliction and avulsion, as well as such as result from our political and civil relations ; as eminent domain, confiscation and forfeiture. Some writers still farther extend the list by the addition of abandonment, occupancy and estoppel. The two former of these are not known in the United States, while the latter is not, strictly speaking, a method of acquiring title at all, but simply a recognition of existing titles. In the paragraphs following, no attempt has been made at syste- matic treatment of the topics above mentioned, and only those gen- eral features of interest to the examiner of titles will be presented. §38. Deed. Title by deed is the most common form of pur- chase, and that by which the great bulk of all the real property in the country is directly held. The term "deed" is very compre- 38 § 40] TITLE BY PURCHASE. 39 hensive in its signification, and denotes not only all classes of in- struments for the conveyance of land, but any instrument in writ- ing under seal, whether relating to land or any other matter. In its popular acceptation, however, it is confined to conveyances of land, or estates or interests therein, and is still further restricted in its meaning to absolute sales, as distinguished from mortgages, indicating conditional sales, though the latter are as essentially deeds as the former. In its broad signification it is the highest form of expression of title known to the law. §39. Devise. Next to deeds, testamentary conveyances form the most common vehicle for the transfer of interests or estates in land, the instrument for affepting a transfer being called a wiU; the subject-matter as well as the title by which same is acquired, a devise; and the recipient of the testator's bounty, a devisee. A will, which is effective as a conveyance only at the maker's death, is from its own nature ambulatory and revocable during his life, and it is this ambulatory quality which forms the chief character- istic of wills; for though a disposition by deed may postpone the possession or enjoyment, or even the vesting of an estate until the death of the disposing party, yet the postponement in such cases is produced by express terms and does not result from the nature of the instrument. Title by devise is of the highest dignity, and effective for all purposes, yet it may be defeated in the same man- ner as a title by descent, when in the course of administration it becomes necessary to sell the testator's land for the payment of his debts. § 40. Public Grant. For purposes of convenience a distinction is made between conveyances by the sovereign and deeds of the individual. Public grants, when forming the foundation of title, are usually classed separately from other forms of conveyance and constitute a special department in all works treating of titles or estates. The original divesture of title by the government may be effected in a variety of ways, either of which will be sufficient for the purpose intended. The usual method is by patent issued in conformity to prescribed legal formalities, though government may make a grant by a law as effectually as by a patent issued in pur- suance of a law ; ^ and a confirmation by law of a claim of title in public lands is to all intents and purposes a grant of such lands.* IHall V. Jarvis, 65 111. 302; Stra- 2Challefoux v. Dueharme, 4 "Wis. ther V. Lucas, 12 Pet. 411; Mayo v. 554. Libby, 12 Mass. 339. 40 ABSTKACTS Of TITLE. [§ 40 The original grant, whatever may be its form, is the first link in the chain of title, and whenever practicable should constitute the initial of the abstract, as the basis upon which all after-acquired titles and derivative interests rest. § 41. Estoppel. Title by estoppel, as defined by Washburn, "is where equity, and in some cases the law, in order to accomplish the purposes of justice which can not be otherwise reached, draws certain conclusions from the acts of one party in favor of another, in respect to the ownership of lands, which it does not allow the first to controvert or deny. ' ' * Strictly speaking, a title is rather presumed than acquired by estoppel, which can operate neither to divest nor transfer an estate, and the parties are precluded by former acts from asserting anything to the detriment of the title. Estoppels are not favored in law, for the object of the adminis- tration of justice is to discover and apply the truth; but there are cases in which the courts are bound to say to a litigant that he has to his own advantage, or to the injury of his adversary, asserted that which is false, and that, having done so, he must be forever forbidden to unfold for his own benefit the truth of the matter.* Mutuality is an essential ingredient of estoppels, and it follows from the very principle on which the whole doctrine rests, that they operate neither in favor of nor against strangers, but affect only the parties, and their privies in blood, estate, or in law. A third party derives no advantage from, nor can he be bound by an estoppel, and this rule applies equally whether the estoppel arises by record, deed, or matter in pwis.^ Estoppels are classified, ac- cording to their nature, as technical, or by record or deed, and equitable, or in pais. Courts at the present day iacline to restrict the doctrine of technical estoppel, and to favor and extend equit- able estoppel.® §42. Technical Eatoppel. The estoppel arising from deeds and records is that which directly concerns an examiner of titles, and is really the only question of this nature on which he can be called to pass. Matters in pais, from their nature, are not pre- sented to him, nor are they effective in questions of title until pre- sented for determination to some competent tribunal, when they 3 3 Wash. Eeal Prop. (4th Ed.) 70. Simpson t. Pearson, 31 Ind. 1; Mc- 4 Abbott V. Wilber, 22 La. Ann. Donald v. Gregory, 41 Iowa, 513. 368; Gray v. Pingree, 17 Vt. 419. 6 State v. Pepper, 31 Ind. 76. SChope V. Lorman, 20 Mieh. 327; § 42] TITLE BY PURCHASE. 41 become matters of record and operative, if at all, as technical estoppel. Estoppel by record is based upon, the ruling and determinations of the courts, and proceedings had therein, which are considered at length in other portions of the work. Verdicts and judgments are conclusive by way of estoppel, only as to facts without the proof or admission of which they could not have been rendered,' or of matters material to the decision of the cause, and which the parties might have had decided, although not actually litigated,' but not as to facts not essential to, although consistent with the general verdict or decree entered in the case.^ The estoppel of a judgment extends only to the question directly involved in the issue, not to any incidental or collateral matters, although they, may have arisen and been passed on;^'* and is effective only as be- tween the original parties thereto or their privies. ^^ It must equally estop both parties thereto, or it cannot be set up by either,^* and is not available for or against a stranger.^' The reversal of a judgment destroys its efficacy as an estoppel.^* Estoppel by deed arises from the provisions contained in instru- ments for the conveyance -of land, either by recital, admission, covenant or otherwise, whether in express terms or by necessary implication, and parties giving and receiving such deeds, together with their privies, are estopped from denying the operatioii thereof according to the manifest intent.^^ In controversies concerning the title to land the question of estoppel arises most frequently in construing the effect of covenants. Thus, if a person having no title to land conveys the same with a general warranty and after- ward acquires title, such acquisition will inure to the benefit of the grantee, because the grantor is estopped to deny, against the terms of his own warranty, that he had the title in question.^® The mischief of the rule is where a grantor who has conveyed without having title subsequently acquires same and then conveys to a third party. Usually, such third party would look no farther than TBurlen v. Shannon, 99 Mass. 200. 14 Smith v. Frankfield, 77 ]Sf. Y. 8 Lindsley v. Thompson, 1 Tenn. 414. Ch. 272; Buck v. CoUins, 69 Me. 445. 15 Taggart v. Eisley, 4 Oreg. 235; 9Burlen v. Shannon, 99 Mass. 200. Tobey v. Taunton, 119 Mass. 404; 10 Lewis' Appeal, 67 Penn. St. 153; Atlantic Dock Co. v. Leavitt, 54 N. Y. Dixon V. Merritt, 21 Minn. 196; 35; Foster v. Young, 35 Iowa, 27; Providence v. Adams, 11 B. I. 190: Seoffin v. Grandstafi, 12 Kan. 467. 11 McDonald v. Gregory, 41 Iowa, 16 Burtners v. Keran, 24 Gratt. 513. (Va.) 43; "Wiesner v. Zaun, 39 Wis. 12 Stoddard V. Burtdh, 41 Iowa, 582. 188; Clark v. Baker, 14 Cal. 612; 13 Mayo V. 'Wood, 50 Cal. 171. Robinson v. Douthitt, 64 Tex. 101. 42 ABSTRACTS OP TITIjE. [§4:2 the acquisition of title by his grantor, and, relying on such fact, would pay the purchase price and take a deed. Yet, the deed, in such a ease, would convey no title, if the prior deed of his grantor was then of record, for, by the rule of estoppel, the title passed, or inured, to the first grantee the moment the grantor became clothed therewith. 1'' But this effect does not extend to any other cove- nants than that of warranty. The other covenants are personal only. Nor does the rule extend to covenants by a married woman, except in States where married women have been expressly enabled by statute to enter into covenants.^' Although a grantor cannot set up a hostile title existing at the time of his conveyance, because he is estopped by his covenants, yet if the deed be a mere quitclaim, without covenants, and pur- ports to convey nothing but the present interest of the grantor in the premises, whatever that interest may be, without defining the character of the interest, or affirming that he has an interest in the premises, he is not debarred from subsequently acquiring, and setting up, any other title, whether existing at the time of his con- veyance or subsequently created.^' It has been held, in a late ceise, that the doctrine of covenants for title, inuring on principles of estoppel in favor of a subsequent grantee, is not to be carried so far as to charge a purchaser, or his attorney examining title for him, with constructive notice of deeds recorded before the vendor has any record title, and that such purchaser, finding an apparent title of record, may rely upon it, and is not required or expected to look further,*" yet such decision seems to be founded on doubt- ful authority and is opposed to the great bulk of American cases on the subject.''^ § 43. Equitable EstoppeL An estoppel in pais rests upon the principle that a party has misled another to his prejudice, under such circumstances that it would be a fraud for him to assert what may be the truth. Hence, to raise an estoppel from former 17 Morrison v. Caldwell, 5 T. B. Sydnor v. Palmer, 29 Wis. 229; Shu- Mon. (Ky.) 426; Wilson v. Thraup, maker v. Johnson, 35 Ind. 33; Gra- 2 Cow. (N. Y.) 195; Kirkaldie v. ham v. €rraham, 55 Ind. 23. Larrabee, 31 Cal. 455. See the re- ZODodd v. Williams, 3 Mo. App. marks of Mr. Eawle in opposition to 27S5 see also State v. Bradish, 14 the doctrine. Eawle on Govts. (5th Mass. 296. Ed.), §259. 81 Logan v. Steel, 4 Mon. 433; 18 Wilson V. Kingij^ 23 N. J. Bq. Mitchell v. Pettee, 2 "W, Va. 470; ISO- Bates v. Korcross, 17 Pick. 14; CSark 19 Bruce v. Luke, 9 Kan. 201; v. Baker, 14 CaL 612; DeWolf v. Eead v. Whittemore, 60 Me. 479; Haydwi, 24 lU. 523. §43] TITLE BY PURCHASE. 43 declarations or admissions by a party to prevent him from setting up his title to property, the facts must show: (1.) That when making the statements or admission relied upon he was apprised of the true state of his own title. (2.) That he made the statement or admission with the express intention to deceive, or with such careless or culpable negligence as to amount to constructive fraud. (3.) That the other party had neither knowledge of the true state of the title nor convenient means of acquiring such knowledge by the use of ordinary diligence. (4.) That he relied upon such state- ment or admission, and will be injured by allowing its truth to be disproved.*^ It will be seen that the important and primary ground of estoppel in pms is, that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted,*' but no man can set up another's act or declaration as the ground of an estoppel, unless he has him- self been deceived by it,** and a party can never be estopped by an act that is illegal and void.** An estoppel in pais, unlike that by deed, operates only on exist- ing rights. Thus a person who, while having no title in himself, induces another to purchase land at a sheriff's sale by his repre- sentations that an unimpeachable title will pass by such sale, is not precluded from setting up afterward an adverse title in him- self.** At law, the doctrine of equitable estoppel can not be applied to work a transfer of property, which, by the statute of frauds, can be effected only by a writing, and the legal title must always pre- vail,*'' yet, although a party cannot divest himself of an estate by parol, he may, without vtTiting so conduct himself with reference to it that he will be estopped afterward to assert a claim thereto; and this principle is applied without reference to the statute of frauds.*' The doctrine of estoppel does not ordinarily apply to a State as it does to individuals. The sovereign power is but a trustee for the people. Its acts by its agents and the people should not be bound by any statement of facts made by those agents. For their 22 Martin v. Zellerbach, 38 Cal. 24 Simpson v. Pearson, 31 Ind. 1; 300; McCabe v. Baney, 32 Ind. 309; MeKinzie v. Steele, 18 Ohio St. 38; Nugent V. Cineinnati, etc., R. E. Co., Devries v. Haywood, 64 N. C. 83. 2 Dinaey (Ohio) 302; Hallorau v. 26 Mattox v. Hightshue, 39 Ind. 95. Whitcomb, 43 Vt. 306; Horn v. Cole, 26 Donaldson v. Hibner, 55 Mo. 492. 51 N. H. 287; Clark v. Coolidge, 8 27 Kelly v. Hendricks, 57 Ala. 193; Kan. 189; Mallony v. Horan, 49 N. Hayes v. Livingston, 34 Mich. 384. Y. 111. 28 B. B. Co. V. Bagsdale, 54 Miss. 23 Eiee v. Bunce, 49 Mo, 231. 200. 44 ABSTEACTS OP TITLE. [§ 43 benefit the truth may always be shown, notwithstanding any for- mer statement to the contrary.^' This principle rests, in part at least, upon the general doctrine that the State cannot part with its title to land except by grant or other record evidence.^" An appar- ent exception has been said to arise in those cases in which the act sought tx) be made binding was done in its sovereign capacity by legislative enactment or resolution,*^ but this is not so much an exception to the general doctrine of estoppel, by acquiescence in an authorized act of a mere subordinate agent, as it is an original binding affirmative act on the part of the State itself, made in the most solemn manner in which it can give expression to the sover- eign will.'^ § 44. Relation. The doctrine of relation is applied in convey- ances of land to equitable titles which subsequently mature, either by operation of law or act of the parties, into legal titles, and where several acts concur to make a conveyance, estate, or other thing, the original act will be preferred, and to this the other acts will be said to have relation. The fiction of relation is, that the intermediate bona fide alienee of the incipient interest may claim that the grant inures to his benefit by an ex post facto operation. In this way he receives the same protection at law that a court of equity could afford him. Thus, the assignee of a certificate of the purchase of school land, the purchase money being all paid, conveyed the premises by quit- claim deed; a few days afterward he received the patent, and it was held that the legal title passed to his grantee. So, where a deed is made in pursuance of a recorded land contract, it relates back to the date of the contract, and conveys the title as it stood at the time the contract was recorded.*' The same doctrine also applies to grants of unlocated land, the subsequent location operat- ing by relation to the original grant.** The doctrine of relation is a fiction of law adopted by the courts, solely for the purpose of justice, where several proceedings are required to perfect a conveyance of land ; it is only applied for the security and protection of persons who stand in some privity with 29 Fannin Co. v. Eiddle, 51 Tex. 32 Saunders v. Hart, 57 Tex. 8. 360; Farish v. Coon, 40 Cal. 50; 38 Welch v. Button, 79 111. 465; Johnson v. TJ. S., 5 Mason C. C. 425. Snapp v. Pierce, 24 111. 156. 30 Saunders v. Hart, 57 Tex. 8. S4Dequindre v. Williams, 31 Ind. 31 Alexander v. State, 56 Ga. 486; 444. Enfield v. Permit, 5 N". H. 285; Com- monwealth V. Andre, 3 Pick. 224. § 45] TITLE BY PURCHASE. 45 the party that initiated the proceedings and acquired the equit- able claim or right to the title. It does not affect strangers not connecting themselves with the equitable claim or right by any valid transfer from the original or any subsequent holder.^^ §45. Prescription and Limitation. Prescription is that title which arises from long and continued, possession of property, and is founded upon the presumption that the party in possession would not have been allowed by other claimants to hold same without a just and paramount right. Prescription, in the ancient sense of the word, rests upon the supposition of a grant, and the use or possession on which such title is founded must be uninter- rupted and adverse, or of a nature to indicate that it is claimed as a right, and not the effect of indulgence, or of any compact short of a grant.^* Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the considera- tion that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession.''' The period of legal memory, or prescription, does not, at com- mon law, extend farther back than sixty years,'* while forty years is usually a sufficient length of time to establish a prescriptive title,'^ and, in general, it is the policy of the courts to limit the presumption of grants to periods analogous to those of the statute of limitations, in cases where the statute itself does not apply.*" A title founded upon prescription or limitation, accompanied by an adverse user or enjoyment, is recognized as valid and sub- stantial, as against all save the sovereign power,*^ and in the older States of the Union, where it is often difficult to trace title to its source, property is freely conveyed on the assurance furnished by time and the statute of liipitations. Twenty years is the period ordinarily fixed by the statute in which to perfect an adverse possession of lands, while in case the occupant claims a title exclusive of any other right, founding such 35 Gibson v. CSiouteau, 13 Wall 92. 38Coolidge v. Learned, 8 Pick. 504; 36 Gayetty v. Bethune, 14 Mass. 49 ; Odiorne v. Wade, 5 Pick. 421. Odiorne v. Wade, 5 Pick. 421. 39 Melvin v. Whiting, 10 Pick. 295. 37 Gayetty v. Bethune, 14 Mass. 49 ; 40 Hunt v. Hunt, 3 Met. 175. Booker v. Perkins, 14 Wis. 79; Tay- 41 Gardiner v. Miller, 47 Gal. 570. lor V. WatMns, 26 Tex. 688. 46 ABSTRACTS OP TITLE. [§46 claim upon some written instrument, judgment or decree, ten years is frequently sufficient, and in some States even a shorter period.*^ § 46. Accretion and Reliction. Accretion is the increase of land, caused by the addition made by the washing of the sea, a navigable river, or other wfiter course to which the land is con- tiguous, whenever the increase is so gradual that it can not be perceived at any one moment of time.*^ The increase or deposit obtained by accretion is technically called alluvion, and whether produced by natural or artificial causes inures to the benefit of the adjacent territory.** It is held by the same title, and under the same grant, as the land which it adjoins, and is subject to the same liens and benefited by the same incidents that appertain to such adjacent land.*^ Upon all rivers not navigable by common law the owner of the land adjoining is prima facie owner of the soil to the central line or thread of the stream subject to the public right of navigation.*® The presumption will prevail in all cases in favor of the riparian proprietor, unless controlled by some express words of description which exclude the bed of the river, and in all cases where the river itself is used as a boundary, the law will expound the grant as extending to the center or thread.*'' Upon navigable lakes and rivers, where the public easement is not interrupted, the question of navigability, as at common law. does not arise, and the riparian proprietor will still be entitled to all accretions without regard to navigability.** 42 Consult local statutes for the pe- Adams v. Frothingham, 3 Mass. 352 ; riods of limitation, and the character People v. E. E. Co., 42 N. Y. 315; of the occupancy necessary to perfect Loekwood v. E. E. Co., 37 Conn. 387; title. Lammers v. Nissin, 4 Neb. 245. 43Lovingston v. St. Clair Co., 64 45 Campbell v. Gas Co., 84 Mo. 352 ; 111. 56 ; Krant v. Crawford, 18 Iowa, Gale v. Kinzie, 80 111. 132. 554; Benson v. Morrow, 61 Mo. 352. 46 Hubbard v. BeU, 54 111. 110; This definition has its origin in the Olson v. Merrill, 42 Wis. 203. At Institutes of Justinian, see Lib. II, common law only tide waters are navi- Tit. I, Sec. 20, and has b«en fol- gable. lowed by courts and writers ever since. 47 Braxon v. Bressler, 64 111. 488; See, Lammers v. Nissen, 4 Neb. 245; Eoss v. Faust, 54 Ind. 471. St. Louis, etc., Ey. Co. v. Eamsey, 53 48 Lovingston v. St. Clair Co., 64 Ark. 314; Jefferis v. Land Co., 134 111. 56; Schurmeir v. E. E. Co., 10 U. S. 178. Minn. 82; Magnolia v. Marshall, 39 44 St. Clair Co. v. Lovingston, 23 Miss. 111. Wall. (U. S.) 46, affirming 64 lU. 56; § 46] TITLE BY PURCHASE. 47 The general rule above stated applies as well to land which by erosion becomes riparian, and where through the gradual washing away of intervening land an originally remote tract becomes ripar- ian all of the rights of accretion will at once> attach thereto.*® In applying the principle that land formed by alluvion is the property of the adjoining owner, it is quite immaterial, on non- navigable streams, whether this alluvion forms at or against the shore so as to cause an extension of the bank, or in the bed of tlie stream and becomes an island,*" and where an island is so formed in the bed as to divide the channel and form partly on each side of the thread, the opposite sides belong to the different proprietors and the island should be divided according to the original thread. The increase on streams, rivers and water fronts should be di- vided between the owners of the shore, according to their respec- tive frontage, so as to secure to each the benefits which his original frontage gave him, and for this purpose the following rule may be employed : Measure the whole extent of the ancient line on the river and ascertain how many feet, rods, etc., each proprietor owned on the line ; divide the newly formed line into equal parts and appropriate to each proprietor as many portions of this new river line as he owned feet on the old. Then to complete the division, lines are to be drawn from the parts at which the proprietors respectively bounded on the old, to the points thus determined as the new points of division on the newly formed shore. The new lines, thus formed, it is obvious, will be either parallel, divergent or converg- ent, according as the new shore line of the river equals, exceeds or falls short of the old.*^ This mode of distribution secures to each- riparian proprietor the benefit of continuing to hold to the river shore whatever changes may take place in the condition of the river or the accretion. The rule will require modification under particular circumstances, as for instance, if the ancient margin has deep indentations or sharp projections the general available line on the river ought to be taken, and not the actual length of the margin as thus elongated by the indentations or projections. A more familiar , rule, and one of general application in the West, is to extend the original water frontage of the respective parcels of land, as nearly as practicable at right angles with the 49 Wells V. Bailey, 55 Conn. 292. Batehelder v. Keniston, 51 N. H. 496 ; 50 Deerfield v. Arms, 17 Pick. 41 ; Thornton v. Grant, 10 R. I. 477 ; Jones Granger v. Avery, 64 Me. 292. v. Johnson, 18 How. 150. Sipeerfleld v. Arms, 17 Pick. 41; 48 ABSTRACTS OF TITLE. [§ 46 original shore line, or with the course of the river to the thread of the stream. *2 The usual incidents of title attend property acquired by accre- tion.^^ The right to alluvial formation is a vested one, inherent in the property itself, and forms an essential attribute of it in con- sequence of the local situation of the land.^* Beliction differs from, accretion only in that it results from the gradual subsidence of waters, the effect being the same.'* Accretion or reliction follows the title of the land contiguous to the alluvion, but will appear of record only when surveys or divisions have been made in the manner above indicated. § 47. Avulsion. Avulsion is the reverse of accretion, being the sudden removal or deposit of land by the perceptible action of water ; and the term is also applied to the derelict left by the sud- den subsidence of water on the seashore or on navigable rivers. The authorities are not altogether harmonious, but the majority, following the common law, place the title to such derelict in the sovereign.'® In the case of inland navigable streams, the title de- pends upon local laws, some States claiming the title of the bed of the stream, while others concede it to the riparian proprietor, subject only to the public right of navigation. When title extends to the middle of the stream the boundary remains as it was, irre- spective of changes in the channel.''' §48. Riparian Titles. By the common law of England the title to land under water, as well as the shore below ordinary high water mark in navigable rivers and arms of the sea, is vested in the sovereign for the public use. But as the rivers of England were comparatively small, tide waters only were regarded as navigable, and the confusion of naVigable with tide waters, found in the monuments of the common law, long prevailed in this coun- try, notwithstanding the broad differences existing between the extent and topography of the American continent and the British islands. Congress, by special provision, has fixed the status of all navigable streams and water ways in what was formerly a portion 52 Miller V. Hepburn, 8 Busli (Ky.), 120; Boorman v. Suunuchs, 42 Wis. 326. 235. 53 Gale V. Kinzie, 80 111. 132. 56 2 Black. Com. 262; Dikes v. Mil- 64 Kennedy v. Municipality No. 2, ler, 24 Tex. 417. 10 La. Ann. 54; St. Clair Co. v. Lov- 67 St. Louis v. Butz, 138 U. S. 226; ingston, 23 Wall. (U. S.) 46. Bonewits v. Wygant, 75 Ind. 41. 55 Warren v. Chambers, 25 Ark. § 48] TITLE BY PURCHASE. 49 of the public domain, by declaring that they shall be deemed to be and remain public highways, yet it is clear that Congress did not employ the words navigable or non-navigable in the sense of being affected by the ebb or flow of the tide. On the contrary, it is obvious that the words were employed without respect to the tide, and were applied to territory situated far above tide waters, and in which there were.no salt water streams. Viewed in the light of these considerations, the federal courts have adopted the rule that proprietors, under titles derived from the United States, bordering on streams not navigable, unless restricted by the terms of the grant, hold to the center of the stream, while in case of navigable rivers the title of the riparian proprietor stops at the stream.^* Nor will the common law apply to our great fresh water lakes, for here there is neither flow of the tide nor thread of the stream, and local law, in most of the states, appears to have assigned the shores down to ordinary low water mark as the boundary of the riparian proprietor.^' This is a subject, however, upon which there seems to be much diversity, if not confusion, of judicial opinion. In some States it is held, that where the government grants laiid bordering upon a navigable stream, and there is nothing in the grant which indi- cates an intention on the part of the government to make any reservation, or limit the grant to the water's edge, the grantee takes to the middle of the main channel of such stream, subject only to the public easement of navigation.^" This, it will be per- ceived, is a restatement of the common-law rule. In many jurisdictions the courts have refused' to follow the common-law rule, holding that it is inapplicable to. the conditions existing in the United States. Some of the cases limit the grantees title to high water mark,®^ but the majority fix it at low water 58 E. R. Co. V. Schurmeir, 7 "Wall. The submerged lands are appurtenant (U. S.) 272; Forsyth v. Small, 7 Biss to the upland, so far as their limits (0. Ct.) 201; Barney v. Keokuk, 4 can be reasonably identified. Lin- Otto (TJ. S.) 324. coin v. Davis, 53 Mich. 375. 89 Wheeler v. Spinola, 54 N. Y. . 60 Johnson v. Johnson, 14 Idaho, 377; Canal Commrs. v. People, 5 561, 95 Pac. 499; Ballance v. Peoria, Wend. (N. T.) 423. Eiparian rights 180 111. 29, 54 N. B. 428; Pranzini v. upon the great lakes have been held Layland, 120 Wis. 72, 97 N. W. 499. to be, in theory, the same as upon 61 Park Comrs. v. Taylor, 133 Iowa navigable streams, and are not gov- 453, 108 N. W. 927; State v. Port- erned by any such proprietary divi- land Electric Co., 52 Oreg. 502, 95 sions as high and low water mark. Pac. 722. Warvelle Abstracts — 4 50 ABSTRACTS OF TITLE. [§ 49 mark,62 or the "water's edge." ®' In such cases the title to the bed of the stream is in the State. Where questions of this kind arise resort must he had to local usage. § 49, Dedication. A dedication is an appropriation of land to public use ; ®* the public and not merely a public corporation must be the chief beneflciary,^^ and, properly speaking, there can be no dedication to private uses.^^ Dedication is express, as when made by deed or other unequivocal act or declaration ; or, implied, or presumed from an acquiescence in the public use. The law requires no particular form or solemnity to constitute a valid dedication, the intention of the owner being the vital principle, and this may be evidenced by the owner's acts or declarations and the circumstances under which the user has been permitted.*'' The question of dedication arises most frequently, in the ex- amination of titles, in the construction of plats and subdivisions, and must be determined by referen0€ to local law, as the commoii law dedication has in many of the States been supplemented by statute which vests the legal title to the dedicated tract in the mu- nicipality.** At common law, when the right of the public to the use of land rests Upon no other foundation than a dedication to public uses, the easement vests in the public while the fee remains in the original owner, and may be conveyed by him to third per- sons; but, in such case, the right of the public to the use is para- mount to the title of the owner of the fee, and does not require the fee for its protection.*® § 50. Confirmation. Confirmation, at common law, is a species of conveyance whereby an estate which was voidable or inchoate is made valid and certain, or where a particular interest is in- 62 Gibson v. Kelly, 15 Mont. 417, firiaries as do dedications upon the 39 Pae. 517; Freeland v. Penn. Ey. public generally. Co., 197 Pa. 529, 58 L. B. A. 206, 6TWood v. Hurd, 34 N. J. L. 87; 47 Atl. 745; State v. Muncie Pulp Buchanan v. Curtis, 25 Wis. 99; Mc- Co., 119 Tenn. 47, 104 S. W. 437. Intyre v. Storey, 80 111. 127; Shear 63 Hahn v. Dawson, 134 Mo. 131, 33 v. Stothart, 29 La. Ann. 630. S. W. 778. 68 Chicago, etc., R. R. v. JoUet, 79 64 1 Bou. Law Diet. 443. 111. 25 ; Downer v. R. R. Co., 22 Minn. 66 Todd T. R. R. Co., 19 Ohio St. 251. 514. 69 M. E. Church v. Hoboken, 33 N. 66 M. E. Church v. Hoboken, 33 N. J. L. 13; Cinciimati v. White, 6 Pet. J. L. 13. But reservations for pri- (U. S.) 431; compare Wilson v. Sex- vate use may be made, which confer ton, 27 Iowa, 15. much the same rights upon the bene- § 50] TITLE BY PURCHASE. 51 creased. It is not an original method of passing title, and only operates on an existing estate or right in lands by strengthening the title of one who already has, or claims, some right or interest therein. Though deeds of confirmation are in use between individuals, the term, as indicative of a form of title, is usually applied to those confirmatory acts of government whereby inchoate or un- certain rights derived from the national government or from for- eign powers, are ratified and approved, and relates to the origin of title. From the earliest period in the history of the country, claims to tracts of land, upon which persons had settled and made improvements in advance of the public surveys and before the lands had been offered for sale, sometimes upon the express invi- tation of the public authorities and sometimes upon their supposed acquiescence, have been presented for the equitable consideration of the government. Such claims, in great numbers, have also arisen under other governments from which we have acquired ter- ritory, with treaty stipulations for their protection. Sometimes such claims have been submitted to boards of commissioners for approval or rejection; sometimes they have been referred to the judicial tribunals for determination, and sometimes they have been directly acted upon by Congress. A confirmation cannot strengthen a void title, but only one that is voidable, and is con- clusive only as between the Government and the confirmee.''*' Confirmation, as a basis of title, relates mainly to imperfect grants of the French, Spanish or Mexican governments, made prior to the annexation of the territory to the United States, and may consist of the judgment or determination of a board of com- missioners organized for that purpose, a judgment or decree of the federal courts, or a special act of Congress. Though it has been held, that a confirmation by law of a claim of title in public lands is to all intents and purposes a grant of such lands,''^ yet it seems that the legal title to lands confirmed to a private person by act of Congress, or by action of Government tribunals, remains in the United States until a patent has issued therefor, and, until then, the confirmee has only an equitable title.''^ 70 Header v. Norton, 11 Wall. 442. the TTnited States should be issued to 71 Challef oux v. Ducharme, 4 Wis. the claimant when his claim should 554. have been recognized as valid and en- ViJLeBean v. Armitage, 47 Mo. 138 j titled to confiimatioa, yet the patent, Amesti v. Castro, 49 Cal. 328. In the in such cases, is only documentary evi- settlement of these claims the law has dence of the existence of the title, or generally provided that a patent of of such equities respecting the claim 52 ABSTRACTS OF TITLE. [§ ^1 § 51. Occupancy. Title by occupancy forms a sub-head in Mr. Washburn's admirable work in real property/* but this method of acquisition does not now seem to be recognized in the United States, if indeed it ever existed. In its broad sense, it is the rignt or title derived from an original state of nature ; hence the Amer- ican Indian holds the use and enjoyment of his lands by occu- pancy, and though this title is respected by the courts until legiti- mately extinguished, it does not extend to property in the soil and cannot be made the subject of transfer, while the Government has ever reserved the exclusive right to extinguish this title by pur- chase or conquest.''* In its technical sense it was applied to a method of acquisition once in vogue in England, where one was tenant for the life of another who outlived him. The estate being a freehold did not go to his personal representatives, but not being an inheritance could not go to his heirs ; and, as a consequence, no one having a legal right to the remnant of the estate, whoever first occupied it acquired such a title by possession and occupancy that no one could dispossess him. This was a title by occupancy.'''^ Provision is made in most of the States for an emergency of this kind. § 52. Abajidomnent and Relinquishment. This method of ac- quiring or losing title may be found noted in nearly all works on real property, yet it seems to occupy a most uncertain and indis- as to justify recognition and confirma- iug purchases of land by pi'ivate in- ■ tion. Morrow v. Whitney, 5 Otto (TJ. dividuals from Indians and declaring S.) 551; Langdeau v. Hanes, 21 Wall. that "if at any time any of the said (U. S.) 521. Indians should be inclined to dispose 73 3 Wash. Eeal Prop. (4th Ed.) of said lands," the same "shall be 50. purchased only" for the Crown, the 74 Johnson v. Mcintosh, 8 Wheat. ultimate dominion and sovereignty be- 543; Pletcher v. Peck, 6 Oranch. 87. ing held to reside in the discoverer Immediately after the inauguration of colonizing upon the continent. In ac- President Washington, he laid before eordanoe with this principle, begin- Congress a report from the Secretary ning with the treaty of 1795, at Green- of War, acknowledging the Indian ville, the Indian title of occupancy right of occupancy, and recognizing has been gradually extinguished by the principle of acquiring their claims the United States in all of the States by purchase for specific consideration east of the Mississippi, and in nearly according to the "practice of the late all of the States and Territories west English colonies and government in of same, leaving, in some cases, rem- purchasing the Indian claims," and nants of tribes, who have been in- the rule in that respect laid down in vested by Congress with allodial titles, the proclamation of Oct. 7, 1763, by 75 3 Wash. Real Prop. (4th Ed.) 50. the King of Great Britain, interdict- §52] TITLE BY PURCHASE. , 53 tinct position. Easements and incorporeal rights annexed to land, may be lost by abandonment. So may a homestead. So may an incipient right to land, as a location and survey, or other merely equitable title not perfected into a grant or vested by deed, but legal rights, when once vested, must be divested according to law.''^ "Yet," says one authority, "if a person having the disposing power absolutely, does an act sufficient in itself, legally to divest his title with the express intention of relinquishing and abandon- ing the property, it is not easy to perceive why he may not do so. Abandonment, it is said, is the relinquishment of a right; the giv- ing up something to which one is entitled. If the owner sees proper to abandon his property, and evidences his intention by an act legally sufficient to vest or divest ownership, why may he not do so in the case of land, as well as of a chattel? It might go to the Government instead of the first occupant, upon the principle upon which land escheated or became derelict."'" It has been observed, that a man shall be held to intend what necessarily results from his own acts. Consequently, when prop- erty is abandoned under such circumstances as to leave no doubt of the fact, no one who has taken possession of it can be required to relinquish it; but abandonment is a question of fact for which' no rule can be formulated, and must be decided by the circum- stances of each case.''* It would seem that the):'e is nothing in principle to prevent the owner from abandoning his right of prop- erty in land, provided the intention to do so be evidenced by an act or deed legally sufficient to operate a divestiture of the title, yet this will so seldom occur that a discussion of it seems unneces- sary. Ordinarily when title is asserted through this method, it will be found to depend more on long continued adverse possession and rights conferred by the statute of limitations. Examples of relinquishment may be found in the actions of Congress where property, instead of being granted, is relinquished to the donee, either with or without conditions annexed, yet all of the acts of this character which have come under the observation of the writer, may properly be classed as dedications, notwith- standing the express term "relinquishment" is used as the opera- tive word. This is particularly true where provision is made for reverter.'" 76 4 Kent Com. 448 ; Picket v. DottI- linquishment in the General Land Of - ing, 2 Wash. (Va.) 106; Dikes v. fice. Miller, 24 Tex. 417. 78 Corning v. Gould, 16 Wend. 543 ; 77 Dikes V. Miller, 24 Tex. 417. In Holmes v. E. B., 8 Am. Law Beg. 716. this case the owner filed a deed of re- 79 See 19 TJ. S. Stat. 127. 54 ABSTRACTS OF TITLE. [§53 § 53. Eminent Domain. One of the sovereign attributes of the State, is the right to subject the private property of its citizens to public uses,*** but with the concurrent obligation to make, just and full compensation therefor.*^ Such right is inherent in the State, though usually reserved as well in the organi? law — ^the Con- stitution; and where it is lodged to any extent in corporations, is limited by the uses for the furtherance of which, on the ground of public policy, it is conferred. Whatever exists, in any form, whether tangible or intangible,*^ is subject to the exercise of this right including the property and franchises of incorporated com- panies as well as individuals. The exercise of the right of eminent domain is primarily and mediately the act of the State; and corporations to which it has been delegated, and by which it is immediately exercised, are but instrumentalities of the State, although they may have, and gen- erally do have, corporate interests intermingled and growing out of the exercise of this sovereign prerogative.** Though the power can only be exercised for a public use, it has never been deemed essential that the entire community or any considerable portion, should directly enjoy or participate in the benefits to be derived from the purpose for which the property is appropriated. It is enough if the taking tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the State, or leads to the growth of towns and the creation of new channels for the employment of private capital and labor, such results con- tributing indirectly to the general welfare and prosperity of the whole community.** Compensation is always a condition prece- dent to the appropriation of the property,** and when land is acquired by the public for one particular use no additional burden can be superadded without further compensation.** § 54. Title Acquired by Eminent Domain. The general rule in this country is, that the exercise of the power of eminent domain, 80 United States v. Jones, 109 U. 2 Dill. 376; Cameron y. Supervisors, S. 513; Johnson v. E. E. Co., 23 lU. 47 Miss. 264; Paris v. Mason, 37 Tex. 202. 447; Cook v. South Park Commis- si Chicago V. Lamed, 34 111. 203. sioners, 61 111. 115. This, however, is 82 Eigney v. Chicago, 102 lU. 64. a constitutional limitation of the 83 Hatch V. E. E. Co., 18 Ohio St. right. United States v. Jones, 109 U. 92. S. 513. 84 Talbot V. Hudson, 82 Mass. 417; 86 State v. Laverack, 34 N. J. L. In Ee Gas Co., 63 Barb. 437. 201 ; Hatch v. E. R. Co., 18 Ohio St. 85 Eidemiller v. Wyandotte City, 92 ; Craig v. E. E. Co., 39 N. Y. 404. § 54] TITLE BY PURCHASE. 55 particularly when exerted in behalf of corporations, extends only to the use of the property appropriated, and does not include the fee.*'' The easement, however, is usually regarded as perpetual, and as such forms the basis of compensation; but should the use be abandoned, the land, disencumbered of the easement imposed by the appropriation, will revert to the holder of the fee. It is a cardinal rule that every statute in derogation of the right of prop- erty, or that takes away the estate of a citizen, is to be con- strued strictly," and no implication can be indulged in that a greater interest or estate is taken than is absolutely necessary to satisfy the language and object of the statute making the appro- priation.** But a fee may be taken as well as a lesser right or interest. It is not necessary that exact or technical language should be used in a statute, for taking private property for public use, in order to vest the fee in the public, but it must clearly appear that it was the intention of the Legislature, as disclosed by the act itself, to take a fee. _ If any remaining private ownership is incon- sistent with the use for which the land is. taken, and compensa- tion is made for the fee, which is also necessary for the full use of the property under the act, a fee will be deemed to have been taken in the absence of express words.*' In some of the States the fee passes as an incident,'^ and excludes any remaining rights in the former owner, but usually the extent of interest, or quan- tity and duration of the estate acquired by the exercise of this power, is derived from the specific act of appropriation. The power is a legislative one, subject to constitutional restric- tions, and the only conditions requisite to its exercise are the needs of the public and compensation to the owner; when these condi- tions exist, the right of the State to withdraw property from private control and subject to public use whatever interest or estate is necessary to accomplish the intended purpose, is com- plete and perfect,*^ and this interest, according as the Legislature may determine, may consist of an estate for years, for life, a mere easement, a conditional fee, or a fee simple absolute.'* It would 87 Morris v. Turnpike Road, 6 Bush 91 Troy v. R. R. Co., 42 Vt. 265 ; (Ky.), 671; R. R. Co. v. Burkett, 42 Challis v. R. R. Co., 16 Kan. 117. Ala. 83; Cooley's Const. Lim. 559. SZDingley v. Boston, 100 Mass. 88 Sharp V. Spear, 4 HUl. 76. 544; Haldeman v. R. R. Co., 50 Pa. 88 Cemetery v. R. R. Co., 68 N. Y. St. 425; Giesy v. R. R. Co., 4 Ohio 591. St. 308. 80 Park Commissioners v. Arm- 93 Heyward t. New York, 3 Seld. strong, 45 N. Y. 234. 314 ; Cooley 's Const. Lim. § 558. 56 ABSTRACTS OP TITLE. [§ 54 therefore appear that the act of appropriation, whenever the title has passed by the exercise of this power, together with such 'of the condemnatory proceedings as may be necessary to show the extent of land taken, are necessary links in the chain of title, and . should be duly set forth in the abstract. § 55. Escheat. In its original acceptation, escheat was the right of the lord of the fee to enter same when it became vacant by extinction of the blood of the tenant. It was one of the inci- dents of feudal tenure, and is still occasionally mentioned as marking the feudal origin of American land titles. Nothing but the name, however, is feudal, and is only another instance in which, in our land system, a word is applied in a sense far dif- ferent from its original meaning, suggesting ideas which have long been exploded. Escheat, in the United States, depends upon positive statutes. It does not follow as a matter of right, but of expediency. The lord of the fee, holding the ultimate title, might with propriety assert his ownership, but no such right can be claimed by the State, nor is the idea compatible with the full property in land held under allodial title. It is however, a universal rule of civi- lized society that when the deceased owner has left no heirs, his property should vest in the public and be at the disposal of the Government,** and by the general rule of the common law, all real property capable of use and possession, and having no other acknowledged owner, is in theory vested in the king as the head and sovereign representative of the Nation; so the State, in its right of sovereignty, is said to possess the ultimate property of all lands within its jurisdiction. "When the owner dies intestate and leaving no inheritable blood, the lands vest immediately in the State by operation of law;*^ but some prqceeding is necessary on the part of State to assert the title thus acquired,^^ which is accomplished by a procedure sometimes termed "inquest of of- fice," the various steps being prescribed by statute, and culminat- ing in a decree.*'' This decree, together with the preliminary proceedings, forms the record evidence of title derived in this manner. The State on taking lands by escheat, takes the same 94Bou. Law Diet. 537; 4 Kent 127 Ky. 824, 107 S. W. 247, 15 L. E. Com. *425. A. (N. S.) 379. 96 People v. Conklin, 2 Hill, 67 ; 97 An escheat may be asserted by Sands v. Lynham, 27 Gratt. (Va.) an action of ejectment in the usual 291. form. 96 Louisville School Board v. King, § 56] TITLE BY PURCHASE. 57 title as the person last seized, and none other, subject to the same trusts, incumbrances, charges and services to which the prop- erty would have been subject had it descended to heirs,** the State being for this purpose a statutory heir in default of known kin- dred.*' § 56. Confiscation. Closely allied to escheat, but resting on a different foundation, is confiscation, being the right to appro- priate to the use of the State, the property of alien enemies dur- ing war. Respecting this power of the Government, no doubt can be entertained. That war gives to the sovereign full right to take the persons and property of the enemy wherever found is conceded. The mitigation of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but can not im- pair the right itself.^ Save in a few instances, during the revolu- tionary period, this right has been restricted to seizure of personal property until the late civil war, when by act of Congress of July 17, 1862, the right of confication of real estate was again asserted. But concurrently with the passage of this act. Congress also adopted a joint resolution explanatory of it, whereby it was re- solved that no punishment or proceedings under the act should be construed so as to work a forfeiture of the real estate of the offender beyond his natural life, and courts when passing upon the question have uniformly decided that confiscation proceedings in effect, reach only the life estate of the owner.* The condemna- tion goes to the whole estate, however, and extinguishes all the rights possessed by the original owner, leaving in him no estate or interest of any description which he can convey by deed, and no power which he can exercise in favor of another. The for- feiture is complete as long as it lasts, and the proviso, by way of grace, gives back the land to his heirs upon his death.* 98 Trust Co. V. People, 1 Sandf. (XT. S,), 202; Preneh v. Wade, 12 Ch. 139. Otto (U. S.), 132; Pike v. WasseU, 94 99 Wallace v. Harmsted, 44 Penn. V. S. 711. In England attainder of St.' 492. treason worked corruption of blood 1 Brown v. United States, 8 Granch and perpetual forfeiture of the es- (TJ. S.), 110. tate of the person attained to the dis- ZBiglow V. Forrest, 9 Wall. (V. inherison of his heirs. When the S.) 339; Dewey v. MoLain, 7 Kan. Federal Constitution was formed, this 126; Day v. Micon, 18 Wall. (TT.'S.), was felt to be a great hardship, and 156. even rank injustice. For this reason 3Wallach v. VanEiswick, 2 Otto it was ordained that no attainder of 58 ABSTRACTS OP TITLE. [§ 57 § 57. Parfeiture. The term forfeiture is used, as between indi- viduals, to denote the method by which an interest or estate in lands reverts to a former owner by operation of law, as by a breach of condition in a deed or lease. Forfeitures are not favored in law, and courts eagerly seize hold of any circumstances by which they may be defeated, and where adequate compensation can be made, the law in many eases, and equity in all cases, dis- charges the forfeiture upon such compensation being made.* In its more common acceptation it is the means by which the property of the citizen inures to the benefit of the State through the violation of law, and in the TJnted States occurs only in case of confiscation or seizure for taxes. In either case it is in the nature of a penalty, and results as a necessary incident from our reciprocal duties and obligations. As a method of acquiring title it is viewed with disfavor and is of doubtful effect. It is attended with greater formalities than any other form of purchase, and the title derived through it is liable to be defeated by a vast num- ber of contingencies. Ordinarily, titles resting solely on rights derived through forfeiture, for non-payment of taxes or other- wise, are to be viewed with suspicion and accepted with caution, experience having demonstrated in many cases their unsubstantial nature. treason should work corruption of 4 Life Ins. Co. v. Norton, 6 Otto blood or forfeiture of estate, except (U. S.) 234. during the life of the person attained. CHAPTER V. SOURCES OF INFORMATION. § 58. Becords. § 66. Loss or destruction of records. § 59. Depositories of records. § 67. Official aids to seareli. § 60. The right of inspection of rec- § 68. Grantor and grantee indexes. ords. § 69. Notice lis pendens. § 61. Doctrine of notice. § 70. Plaintiff and defendant in- § 62. Constructive notice. dexes. § 63. Actual notice. § 71. Tax records. § 64. Registration. S 72. Official certificates. § 65. Effect of recording acts. § 73. Church and parish records. § 58. Records. An abstract of title, as compiled in the United States, is an abridgement of the public records, to which it also bears the relation of a special index, they being the great reposi- tories of title, and the source from whence the examiner draws the greater part of his information. A record, it has been said, is a written memorial made by a public officer, authorized by law to perform that function, and intended to serve as evidence of something written, said, or done.^ The acts of Congress and of the State Legislatures are the highest types of records, while the proceedings and determinations of the courts are scarcely less in dignity, and by statutory enactment the enrollment of deeds, though made primarily to perpetuate the memory of the facts which they recite, is given the operation and effect of records. These records are of controlling efficacy in the State where made, and by the Constitution of the United States it is declared that "full faith and credit shall be given in each State to the public acts, records, and .iudicial proceedings of every other State. ' ' In matters of sales and conveyances of land, records acquire a new importance from the peculiar American doctrine of constructive notice, which easts a knowledge of their contents and import upon subsequent purchasers, and forms one of the chief incentives to the production of abstracts. § 59. Depositories of Records. Under the general name of rec- ords are classed all official acts of the public officers in relation to 1 2 Bou. Law Diet 424. 59 60 ABSTKACTS OF TITLE. [§ 59 title; the adjudications and determinations . of the courts; minis- terial acts of officers in furtherance of the taxing power, and in- cidentally all papers, whether filed or engrossed, which affect title by relation and through the operation of law. Popularly the term is applied to the registry of deeds rather than to the other classes mentioned; but all come within its signification, so far, at least, as the purpose of abstract making is concerned, and from all of these varied sources the examiner draws the details which go to make up a full exposition of the title. The registry of deeds furnishes the most fruitful field, and the great bulk of the examination is compiled therefrom, but recourse must also be had to the government archives; the transactions of the State Legislature; the files of all the courts. State and Federal; ordi- nances of the municipality, and acts of the officers exercising the ministerial duties of taxation. Though easily enumerated, these sources cover a wide field, and one which requires no ordinary ability to fully encompass. § 60. The Right of Inspection of Records. The right to inspect and copjr or abstract the public records is undoubted to those who have a direct interest therein.^ Not only does such a right result from the plain intendment of the recording acts with reference to the matter of notice, but it has also been assured, in a majority of the States, by statutory enactments providing for the "free examination" of such records by all persons having occasion to inspect them for any lawful purpose. But until very recent years the question has usually arisen only where the right claimed was to inspect or obtain a copy of some particular document, or of documents relating to a given transaction of title. With respect to the right of the abstract maker to, copy or abstract the entire records of a county for speculative purposes, the question may be considered of such mode^-n origin as not to have been contem- plated or covered by the common law authorities relating to the inspection of records ; ^ and, while it has been raised to some extent by recent decisions, it has not yet become shaped into any general definite rule or policy of law.' It must be remembered that the abstract maker does not ask for 2 Brewer v. Watson, 61 Ala. 310 People v. Richards, 99 N. Y. 620 Lum V. MeCarty, 39 N. J. L. 287 of the power of the court to enforce inspection of public documents have been those where a party has sought Boylan v. "Warren, 39 Kan. 301. evidence for the prosecution or de- 3 In England, the occasions which fense of his rights in pending Utiga- generaUy have required the exercise tion. §60] SOURCES OP INFORMATION. 61 an inspection of a record and abstract thereof, relating to lands in which he claims to have title or interest, or concerning which he desires information in contemplation of acquiring some right or interest, either by purchase or otherwise, and, except when pur- suing some special examination, he is not the agent or attorney of parties seeking information because interested or likely to become so. On the contrary, the right is based upon neither a present nor prospective interest in lands, either personally or as a repre- sentative of others who have, but is for his own future gain in furnishing information therefrom to third parties for a con- sideration. In view of these facts the volume of authority for- merly leaned toward a denial of any right in the abstract maker to demand the inspection and free use of public records, holding that the statutes permitting free inspection were not designed to allow individuals the privilege of copying or abstracting the entire records of a public office in which they have no direct or special interest, or of using them continuously for the purpose of obtaining information to be used for speculation and gain in their private business.* 4 Bean v. People, 7 Colo. 200; Cor- maek v. Woloott, 37 Kan. 391; Boy- Ian V. "Warren, 39 Kan. 301. In Buck V. Collins, 51 (xa. 391, it was said, that the right to make abstracts is a peryersion of the purpose for which the books are kept, and in Eandolph V. State, 82 Ala. 527, the court says, that the right of free examination is the rule, and the .inhibition of the privilege when the purpose is specu- lative, is the exception. So in Brewer V. Watson, 71 Ala.. 299, it is said: "It is not the unqualified right of every citizen to demand access to, and inspection of the bogks or documents of a public oflEice, though they are the property of the public and preserved for publio uses and purposes. The right is subject to the same limitation and restriction as the right to an in- spection of the books of a corporation, which strangers can not claim, and which is only allowed to the corpo- rators, when a necessity for it is shown, and the purpose does not ap- pear to be improper; * * * and the individual who claims access to public records and documents can properly be required to show that he has an interest in the document which is sought, and that the inspection is for a legitimate purpose. In other States the same general doctrine has been announced in equally emphatic terms. Thus, The Prince George's County Abstract Company was incorporated by an act of the legislature of Maryland, which provided ' ' that said corporation may make and may procure copies and ab- stracts from the public records of the State and gather information there- from, and from other sources relat- ing to conveyance of property, real and leasehold, make indexes of all deeds, mortgages, judgments, decrees and other records within the State of Maryland and may examine and guar- antee titles to property, real and per- sonal. " Under this liberal legisla- tion the Supreme Court of Maryland, in Belt v. Abstract Co., 73 Md. 289, declared that said company had not 62 ABSTRACTS OP TITLE. [§ 60 It is difficult, however, to reconcile the reasoning in some of the cases with the spirit and general policy of the law, or with the just claims of business convenience. The great utility of the professional examiner is a recognized fact, and with the constantly increasing complication of land titles his assistance in their proper adjustment has, in many localities, become an absolute necessity. The positio^ which he occupies in the world of com- merce is second to none in importance and responsibility, and the free and unhindered inspection of the records should be accorded him as a matter of public policy and in furtherance of great pub- lic interests, if not as a matter of legal right. Not the least among the reasons assigned in the foregoing class of cases is solicitude for the preservation of the sources of infor- mation. The public records, it is said, are the repositories of the rights of persons and of property, and in many cases hold the only evidence of either, and the law imposes upon courts and ministerial officers the duty of their secure and careful protection and preservation; a protection and preservation which might be greatly jeopardized if every citizen at his wUl and pleasure should be permitted to inspect, examine and copy them in his own way.' It must be admitted that the argument is weak when applied to any particular class as contradistinguished from the general pub- lic, and fanciful when applied to actual facts as they are presented in every county in the country. Mutilations of records are rare, and when instances of this kind do occur, it will almost invariably be found that the mutilation has been accomplished by some per- son having a special interest therein — in other words, by one whom the law says may inspect them. It is a significant fact that the ease in which this theory was first advanced,® and which has served as the keynote for every subsequent decision of similar import, has since been overruled in the court where it was pro- nounced.' As a matter of fact, no class of the community are more directly interested in the preservation and integrity of the records than the compilers of abstracts, and on more than one occasion their indices and references have been brought into the right to make seaiohes and ab- the judges afterward granted, as an straets of title for their business act of grace, what they denied the without payment to the clerk of his petitioner to be entitled to as a mat- statutory fees. ter of right. See, also, Re Caswell 's 5 "Webber v. Townley, 43 Mich. 534; Request, 18 R. I. 835. Bean v. People, 7 Colo. 200 ; Cormack 6 Webber v. Townley, 43 Mich. 534. V. Wolcott, 37 Kan. 391 ; Buck v. 7 Burton v. Tuite, 78 Mich. 363 ; 29 Collins, 51 Ga. 391; In Re McLean, Am. L. Reg. 60. 8 R-eporter 813. In the latter case § 60a] SOURCES OF INFORMATION. 63 requisition to protect public interests and prevent confusion of titles.' §60a. Continued — Later Views. While the rule stated in the preceding paragraphs is still maintained in some jurisdictions, a more liberal view has been taken of this matter in many States and the rule has been announced that, as the records are public, every person has the right to inspect, examine and copy them, at all reasonable times and in a proper way ; that ministerial officers charged with the custody of books and records cannot deny access to their offices or the books therein contained to any per- son coming there at a proper time and in an orderly manner,' and that any person so desiring has a right to examine such books and records without charge, not as a privilege or favor, but as a matter of right. ^^ Such officers should have the right to make reasonable restrictions as to the manner in which the books shall be examined, and to exercise a discretion as to the matter of the admission of persons to examine and copy when their presence, by reason of numbers, would interfere with the performance of official duties or the convenience of the general public,^^ but this should be the extent of their powers of discrimination or refusal. In some of the states statutory enactments have further tended to allow the free inspection of records, but the subject is still in- volved in much doubt and uncertainty and a review of the au- thorities shows a sad lack of harmony in the decisions. In some of the cases in which the right of free inspection, and privilege of copying has been declared, the privilege has been restricted to such persons as are employed to examine or guar- antee a particular title, and while, as to such persons, the right is freely conceded it is denied to others.^^ Indeed, this seems to be the prevailing tendency. That is, to permit free examina- tions so far as they relate to current transactions but to withhold &A notable example is afforded by Townshend v. Reg. of N. T., 7 How. the great fire in Chicago, in 1871. Prac. (N. Y.) 318; Burton v. Tuite, This conflagration entirely destroyed 78 Mich. 363; Hansen v. Eichstaedt, the public records, and the ante-fire 69 Wis. 538; Newton v. Fisher, 98 N. indices of the local abstract makers C. 20; and see State v. Eachae, 37 now furnish the only connected his- Minn. 872, 35 N. W. 7; Day v. But- tery of land titles in the county prior ton, 96 Mich. 600, 56 N. W. 3. to that event. H People v. Eichards, 99 N. Y. 620 ; 9 People V. Richards, 99 N. Y. 620 ; State v. McMillan, 49 Tla. 243, 38 So. State V. Eachae, 37 Minn. 372; Bur- 666. ton V. Tuite; 78 Mich. 363. 12 Barber v. Guaranty Co., 53 N. 10 Lum V. McCarty, 39 N. J. L. 287; J. Eq. 158. 64 ABSTRACTS OP TITLE. [§ 60a the right to inspect or copy all of the records for the purpose of compiling an independent set of abstract books.^* With respect to the public records of the United States the necessity of interest, as at common law, has been done away with by statute,!* and any person may examine them or take memo- randa therefrom,!^ while the courts of some States have made a distinction between court records and county records, holding that the judicial records of the State should always be accessible to the people for all proper purposes, under reasonable restric- tions as to the time and manner of examining them.^* In the absence of any statute regulating the matter, there can be no doubt as to the power of a court to prevent an improper use of its records, and hence it may deny a request to examine same from motives of mere curiosity, or to gratify spite, or for the purpose of creating public scandals ; " but when the object is legitimate and serves a proper purpose, there is no good reason for denying the right of inspection, and this is particularly true after the final hearing or determination of a cause.^* § 61. Doctrine of Notice. The principle is well established, that a purchaser of land is chargeable with notice, by implication, of every fact affecting the title, which could be discovered by an examination of the deeds or other muniments of title of his vendor, and of every fact, as to which the purchaser, with rea- sonable prudence or diligence, ought to become acquainted. If there is sufficient contained in any deed or record, which a pru- dent purchaser ought to examine, to induce an inquiry in the mind of an intelligent person, he is chargeable with the knowl- edge or notice of the facts so contained, and generally, a party in possession of certain information will be chargeable with a knowledge of aU facts which an inquiry suggested by such in- formation, diligently prosecuted, would have disclosed to him.^* The purchaser must be presumed to investigate the title, and to examine every deed or instrument forming a part of it, especially if recorded,^" and to make inquiries in pais as well as look at records.^! 13 See, State v. Grimes, 29 Nev. 50, 19 Cambridge Bank v. Delano, 48 84 Pao. 1061, 5 L. E. A. (N. S.) 545. N. Y. 326; "Wilson v. Hunter, 30 Ind. 14 9 U. S. Stat. 292. 466. 16 Be Chambers, 44 Fed. Bep. 786. 20 Acer v. Wescott, 46 N. Y. 384; 16 Be Caswell's request, 18 B. I. Chicago & B. B. v. Kennedy, 70 111. 835. ^ 350. 17 Sohmedding v. May, 85 Mich. 1 ; 21 Littleton v. Giddings, 47 Tex. Cowley V. Pulsifer, 137 Mass. 392. 109. 18 See cases last cited. § 62] SOURCES OP INFORMATION. 65 Notice is classified as either actiial or constructive; but there is no difference between them in regard to the legal consequence or effect.^* § 62. Constructive Notice. It is scarcely possible to declare a priori what shall be deemed constructive notice, because un- questionably that which may not affect one man may be abun- dantly sufficient to affect another, and Sugden observes, "that every one who has attempted to define what it is, has declared his inability to satisfy even himself. ' ' ^* The accepted legal definition is, that constructive notice is a legal inference from established facts.** Where a party has actual notice of anything by which the title to property is affected, or has the means of knowing the same, he is charged with constructive notice of facts and instruments to a knowledge of which he would have been led by inquiry, and which would have revealed the true state of the title.** Such would also be the- case when a party has designedly abstained from inquiry for the very purpose of avoiding notice; for the policy of law, and the safety of the public, forbids a person to deny knowledge, while he is so dealing as to keep himself ignorant, and if he omit to make examination and inquiry in a proper case he is conclusively charged with negligence, and with notice of the de- fects in the title.*® In this country it has been uniformly held that the record of a conveyance, executed in conformity to law, operates as construc- tive notice to all subsequent purchasers or incumbrancers, claim- ing under the same grantor, of any estate, either legal or equit- able, in the same property, provided the conveyance be one which the law requires or authorizes to be recorded ; *'' and such pur- chaser is charged with the duty of exercising diligence in making proper examination touching the rights and equities of others, where the record shows that others have such rights, in the lands he is about to purchase.** A subsequent purchaser is not chargeable with constructive no- tice of all instruments of record, by whomsoever made, but only of 22 Hill V. Epley, 31 Pa. St. 335; 162; CunuiBgham v. Pattee, 99 Mass. Morrison v. Kelly, 22 111. 610; BUi- 248; and see, 1 WarveUe on Vendors, son V. Wilson, 36 Vt. 67. 316, and cases cited. 23 2 Sugden on Vendors, 570 (Am. 27 1 Story Bq. Jur. § 403 ; Tilton Ed.). V. Hunter, 29 Maine, 29; Crockett v. 24 Birdsall v. Eussell, 29 N. Y. 220. McGuire, 10 Mo. 34. 25 Knap V. Bailey, 79 Me. 195; Car- 28 Brush v. Ware, 15 Pet. (U. S.) ter V. Hawkins, 62 Tex. 393. 110. 26 Barnard v. Campau, 29 Mich. Warvelle Abstracts — 5 66 ABSTRACTS OP TITLE. [§ 62 such as lie in the apparent chain of title, or have been made by one in some way connected with the property involved in interest, and brought to his notice.^® Hence he is not bound to look for conveyances by or judgments against one in whom the record shows no title. The doctrine of constructive notice under registration laws has always been regarded as a harsh necessity, and the statutes which create it have always been subjected to a rigid construction.^" Therefore, only the facts as they appear on the face of the record are deemed binding on subsequent purchasers, and if, from any cause, the real facts are there misstated, as if the wrong land is by mistake described, or the sum for which a mortgage is given is inadvertently omitted, a subsequent purchaser in good faith, rely- ing upon what is shown, will not be affected by the error or omis- sion.'^ The recording acts, for the purpose of information and con- structive notice, have not altered or abolished the rules of equity in relation to actual or constructive notice by other means than the recording acts.'^ § 63. Actual Notice. That which a person actually sees ; or which is specifically brought to his attention, creates an actual notice of the fact. But the general doctrine of actual notice is much broader than this. Where a purchaser has knowledge of any fact sufficient to put a prudent man upon an inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that he is about to purchase, it is his duty to make the inquiry, and if he does not make it, he is guilty of bad faith or negligence to such an extent that the law will presume that he did make it, and will charge him with the actual notice he would have received if he had made it.*' Open, notorious and exclusive po'ssession of land imparts notice of the title of the person in possession,'* and of every fact which the purchaser might learn by inquiry,'^ but this rule does not apply to a vendor remaining in possession, so as to require a pur- >!9 Carbine v. Pringle, 90 111. 302. 34 Greer v. Higgine, 20 Kan. 420 30 Chamberlain v. Bell, 7 Cal. 292. Mechan v. Williams, 48 Penn. St. 241 31 Chamberlain v. Bell, 7 Cal. 292; Cabeen v. Breckenridge, 48 HI 91 Sanger v. Craigul, 10 Vt. 555; Frost Tuttle v. Churchman, 74 Ind. 311 V. Beekman, 1 Johns. Ch. (N. T.) Hawley v. Morse, 32 Mo. 287 288. 35 Tankard v. Tankard, 79 N. C. t; Pritohi orrison \ Y. 326. N. E. 768. 32Bourlaud v. Peoria, 16 111. 588. 54; Pritohard v. Brown, 4 N. H. 397; 33 Cambridge Bank v. Delano, 48 N. Morrison v. Morrison, 140 lU. 560, 30 § 64] SOURCES OF INFORMATION. 67 chaser from his grantee to inquire whether he has reserved any interest in the land conveyed. So far as the purchaser is con- cerned, the vendor's deed is conclusive on that subject.^® This is the rule announced in a majority of the cases, but in some States it has been held, that where a grantor remains in possession g, sub- sequent purchaser is charged with notice of his claims and the duty of inquiry.*'' While it is true, that the law regards the actual occupancy of land as equivalent to notice of the claim of the occupant, to aU persons dealing with the title, yet this is not an absolute proposi- tion, which is to be taken as true in all possible relations. The known circumstances may be such that the occupancy will not suggest to a purchaser an inquiry into the title or claim of the occupant, and when the inquiry may be omitted in good faith and in the exercise of ordinary prudence, no one is bound to make it. Possession out of the vendor and actually in another person ordi- narily suggests an inquiry into the claim of the latter, and a fail- ure to make such inquiry evinces gross neglect, but the question in such cases is one of actual notice, and such notice will be im- puted only where it is a reasonable and just inference from the visible facts.** So, too, a purchaser of land is charged with notice of obvious and permanent improvements which create either servi- tudes or easements and takes subject to the burden or entitled to the benefits.*' As distinguished from constructive notice, actual notice con- sists in- express information of a fact brought home to a party, or a knowledge of circumstances which should lead him to a knowl- edge of such fact. Its existence is always a question of fact, open to rebuttal or explanation, while, on the other hand, constructive notice is a presumption of law which cannot be rebutted.*" § 64. Registration. The system of registration practiced in the United States is unknown to the common law and is essentially a creation of the statute. It is doubtless derived from the English 36 Van Keuren v. E. E. Co., 38 N. 38 Eollo v. Nelson, 34 Utah, 116, 96 J. L. 165; Tuttle v. Churchman, 74 Pac. 263, 26 L. E. A. (N. 8.) 315; Ind. 311 ; Sprague v. White, 73 Iowa Hall v. Morton, 125 Mo. App. 315, 102 670, 35 N. W. 751. S. W. 570; Clark v. Gaffney, 116 111. 37 White v. White, 89 111. 460; 362, 6 N. E. 689. (JrofE V. Bank, 50 Minn. 234, 52 N. 40 Tufts v. King, 18 Pa. St. 157; W. 651. Bradbury v. Falmouth, 18 Me. 65; SSPomeroy v. Stevens, 11 Met. 244; Birdsall v. Eussell, 29 N. T. 220. Dooly v. Waleott, 4 Allen 406; Jack- son T. Elston, 12 Johns. 425. 68 ABSTRACTS OF TITLE. [§ 64 Statute of enrollments, which was enacted to counteract the evil effects resulting from the practice of secret conveyances under the statute of uses. This statute provided that every bargain and sale of an inheritance or freehold should be by deed indented and en- rolled within six lunar months from its date, either in one of the courts of Westminster, or before the justices and clerk of the peace in the county where the lands were situate. The enrolling of a deed did not make it a record, however, but it was recorded "to be kept in memory. " *^ By the American system of registration, deeds of conveyance of any estate or interest in land, when duly recorded in conformity with the law of the State where such land is situate, have the dignity and effect of records, and to them much of the stability of our land titles is attributable. Such record not only serves as a means of preservation of the muniments and evidences of title, but also has the effect of giving to the transfer that notoriety for- merly obtained by livery of seizin, to which it is made equivalent in some of the States by statute.*^ The statutes of registration bear a close similitude in all the States, and provide generally for the recording of every instrument in writing, by which any estate or interest in land is created, aliened, mortgaged or assigned, or by which the title to land may be affected either in law or equity. § 65. Effect of Recording Acts. It is a familiar provision of the recording acts, that every conveyance which shall not be re- corded as provided by law, shall be void against any subsequent purchaser in good faith, and for a valuable consideration, of the same land, or any portion thereof, whose deed of conveyance shall be first duly recorded; and further, that every instrument re- corded in the manner prescribed by statute, shall, from the time of filing same for record, impart notice to all persons of the con- tents thereof. It would seem, however, that the constructive no- tice afforded by the record of a deed, applies only to those M'ho are bound to search for it; as subsequent purchasers, and all others who deal with or on the credit of the title, in the line of which the recorded deed belongs.** That such record imparts notice, is to be understood also, in the sense that the contents of the deed are 41 Jacob 's Law Diet. 457. It will of eouveyance in England and which be perceived that only one class of required no enrollment or other form deeds was required to be enrolled, to- of publicity. wit: bargain and sale of an inherit- 48 Higbee v. Eiee, 5 Mass. 344. ance. This developed the form of 43 Maul v. Rider, 59 Pa. St. 167; conveyance by lease and release, which Corbin v. Sullivan, 47 Ind. 356 ; Gil- for many years was the popular mode lett v. GafEney, 3 Col. 351. §65] SOURCES OF INFORM ATION. 69 correctly spread upon the record,** for the recording acts cannot be made by equitable construction to embrace cases not within them, or to give constructive notice of things the records do not show ; *^ and where a mistake is made in recording, a subsequent purchaser has a right, in the absence of actual notice of the mis- take, to rely on the records as showing the exact facts.** But in- correct registration cannot avail a party who is not misled there- by.*' It would further seem, that instruments to impart notice, must be recorded in the proper books. Thus, where separate books are provided for deeds and mortgages it has, in some instances, been held that a mortgage recorded in a book of deeds will not furnish constructive notice.** So, also, the registry of an instrument not required by law to be recorded is notice to no one,*® and, in the absence of statutory provisions to the contrary, a deed is not con- structive notice, because copied into the registry, if it has not been duly executed, acknowledged or proved, so as to entitle it to regis- tration,^" though such an instrument is effective as to all parties who have actual notice of its contents.^^ 44 Terrell v. Andrew County, 44 Mo. 309; McLouth v. Hurt, 51 Tex. 115. 45Priend v. Ward, 126 Wis. 291, 104 N. W. 997, 1 L. B. A. (N. S.) 891. 46 Frost V. Beekman, 1 Jahn. Gh. 288; Barnard v. Campan, 29 Mich. 162; Wait v. Smith, 92 111. 385; com- pare Biggs V. Boylan, 4 Biss. 445. As was said by the court in Terrell v. Andrew County, 44 Mo. 309: "A person in the examination of titles, first searches the records, and if he finds nothing there he looks to see if any instruments are filed and not recorded. If nothing is found, and he has no actual notice, so far as he is concerned the land is unincumbered. If he finds a conveyance, he goes no further; he never institutes an in- quiry to find whether the deed is correctly recorded or the contents lit- erally transcribed. Indeed to attempt to prosecute such a search would be idle and nugatory. Grantees do not usually leave their deeds lying in the Eeeorder 's office for the inspection of the public. After they are recorded they take them away and keep them in their own possession. In a large majority of cases, it would not only entail expense and trouble, but it would be useless to attempt to get access to the original papers." This is a vexed question; the text states the preponderating view but in several States a contrary doctrine is held. See Mangold v. Barlow, 61 Miss. 593 ; Mines v. Mines, 35 Ala. 23 ; Throckmorton v. Price, 28 Tex. 605; Clader v. Thomas, 89 Pa. St. 343. 47Gaskill V. Badge 3 Lea (Tenn.) 144. 48 Cady V. Purser, 131 Cal. 552. 49Galpin v. Abbott, 6 Mich. 17; Sigourney v. Larned, 10 Pick. 72. fiOLoughridge v. Bowland, 52 Misa. 546; Pringle v. Dunn, 37 Wis. 449; Blood V. Blood, 23 Pick. 80; Bishop V. Schneider, 46 Mo. 472; Barrett v. Shabhut, 5 Minn. 323; Washburn v. Burnham, 63 N. Y. 132; Jones v.-Eob- erts, 65 Me. 273. BlBass V. Estill, 50 Miss. 300; Mu- sick V. Barney, 49 Mo. 458; Musgrove 70 ABSTBACTS OF TITLE. [§ 65 Registration in legal intendment is conclusive notice to the parties to be affected by it. But notice of a prior unrecorded deed, communicated to a purchaser, will prevail over a subsequent re- corded deed,s2 ^nd as between the immediate -parties no registra- tion is necessary, an unrecorded deed having the effect to carry the legal title as against all persons having actual notice of its exist- ence.^^ It will often happen that in sparsely populated localities a large area will be devoted to the purposes of a single county. As the country develops and population increases this area is divided into possibly several counties. In such event, unless there has been a provision for the transfer of records, it may become necessary to extend searches into more than one county, or into counties other than that in which the land in question is situate. This results from the rule, now very generally observed, that a change of coun- ty boundaries does not impose the duty of re-recording deeds where lands are thrown into a new or different county from the one of which they originally formed a part, and where an instru- ment has once been properly lodged for record in the county where the land is then situate, it will continue to impart constructive notice to all persons subsequently dealing with the land notwith- standing such land has been attached to another county and no record of the conveyance has been made in such latter county.** § 66. Loss or Destruction of Records. The obligation of giving the notice required by law rests upon the party holding the title, and if his duty is imperfectly performed, he, and not an innocent purchaser, must suffer the consequences ; ** yet in a majority of the States that duty is effectively performed by filing the deed or instrument for record, and when this has been accomplished, the party has done all that the law requires.*^ Where a party has in all respects complied with the law the total or partial destruction of the record will not, it seems, impair any rights which may have accrued thereunder nor affect the constructive notice afforded by the filing or recording of the instruments, which still remain of V. Bonser, 5 Oreg. 313. Where upon B3 Musgrove v. Bonser, 5 Oreg. 313. the records a defective deed is found 64 Geer v. Mining Co., 134 Mo. 85 ; and is seen, this must be regarded as Koerper v. Ey. Co., 40 Minn. 132. actual notice, such as every reasonable 66 Terrell v. Andrew County, 44 Mo. and honest man would feel bound to 309. act upon. Hastings v. Cutler, 25 N. 66 Eiggs v. Boylan, 4 Biss. 445; H. (4 Fost.) 483. Hook v. Fenner, 18 Colo. 283; Beebe 62 Claiborne v. Holmes, 51 Miss. 146. v. Morrell, 76 Mich. 114. § 68] SOURCES OF INFORMATION. 71 binding force and effect upon subsequent purchasers.^' In the event of the destruction of the record, as well as of the original instrument, an abstract, shown to have been made in the ordinary course of business, and delivered to the parties interested in the land, is, as to such lost instrument, competent evidence of the facts therein recited, either by comity, or, in some States, by ex- press enactment ; ^' but where such abstract is unintelligible with- out the aid of some proof to explain the meaning of abbreviations and initial letters used therein, unless some stipulation has been made which determines what effect shall be given to them, it would seem that the abstract is insufScient to establish title.^^ For this reason, among many others that could be adduced, an abstract should always be so written that its contents may be read and understood by anyone. Abbreviations, as far as possible, should be avoided. § 67. OfScikl Aids to Search. No perfect abstract can be com- piled without the assistance of a carefully prepared tract index, the details of which wiU be fully considered in another place ; and should the county records be supplemented with this indispensable adjunct, the searcher will have less difficulty and experience more satisfactory results. Presuming, however, that no books of this character are provided by the public authorities, recourse must be had to such doubtful aids as by law the various officers are re- quired to keep. These consist ordinarily of a series of alphabeti- cally arranged indexes with brief descriptions of the property. "Well kept, they will be of much assistance ; if otherwise, they will prove very misleading. In all sales of real estate, where no better methods are available, these indexes should be carefuUy consulted and a rough chain obtained, which, by reference to the records, can be amplified into an abstract. § 68. Grantor and Crraatee Indexes. The grantor and grantee indexes of the Registry of Deeds, will show the successive con- veyances and incumbrances under the names of the various par- 67 Meyers v. Buchanan, 46 Miss. But in Evans v. Foss, 194 Mass. 513, 397; Gammon v. Hodges, 73 lU. 140; 80 N. E. 587, 9 L. E. A. (N. S.) 1039, Steele v. Boone, 75 111. 457 ; Deming it was held that abstracts of title in V. MUes, 35 Neb. 739; Ashburn v. abbreviated language, which are put Spivey, 112 Ga. 474, 37 S. E. 703; in evidence by agreement, may be in- Thomas v. Hanson, 59 Minn. 274, 61 terpreted according to their manifest N. W. 135. meaning, although such meaning is not B8 Russell V. MandeU, 73 111. 136. expressed by a full statement in words. 69 Weeks v. Dewing, 30 Mich. 4. 72 ABSTBACTS OF TITLE. [§ 68 ties who at different times have held the title, where there has been no break in the chain, together with the volume and page of the record on which the instruments may be found. Adverse deeds, unless within the knowledge of the examiner, can rarely be found by this method, or if found are usually the result of accident rather than design. If only an index to grantors is provided it will be almost impossible to detect adverse deeds. Should a brief description of the property be carried out, as is usually the case, ending with the section, town and range, in proper columns, these columns should always be carefully rtin down for any conveyances that may have escaped the searcher's attention, while going over the names. "While it may be the duty of the recorder to keep a proper index of his books of registration, so that one searching the records may easily find what is contained therein, yet a deed of conveyance properly filed and copied on the records is recorded within the meaning of the law, and imparts notice to subsequent purchasers, notwithstanding the failure of the recording officer to index it. The index is no part of the records.®" In a very few States, perhaps, these latter statements may not apply, for in several instances it has been held, under statutes which require the recorder to keep indexes, that a deed cannot be considered as legally recorded until the proper entries of at least its essentials have been made in the general index,®i while some decisions go so far as to declare that the index itself is an essential part of the record.®^ 60 Bishop V. Schneider, 46 Mo. 472; by the clerk should be regarded as Chatham v. Bradford, 50 Ga. 327; essential to the lieu of judgments; Board of Commissioners v. Babcook, yet no one, we suppose, would claim 5 Oreg. 472; Ins. Co. v. Dake, 87 N. that the effect of a judgment was de- Y. 257; Curtis v. Lyman, 24 Vt. 338; pendent on the act or omission of the Glading v. Friok, 88 Pa. St. 460. The clerk in making the index. ' ' Green index is not, as a rule, made essential v. Garrington, 16 Ohio St. 548; but by statute, and though the courts in see Howe v. Thayer, 49 Iowa 154; some instances seem to have indi- Lombard v. Culbertson, 59 Wis. 433. eated that it is a material part of the 61 Hiles v. Atlee, 80 Wis. 219 ; records the reasons therefor do not Hewitt v. Week, 59 Wis. 444; and see, seem to be sound or in consonance Howe v. Thayer, 49 Iowa 154. with the general doctrine on this sub- 62 Ritchie v. Griffiths, 1 Wash. 429, ject. "The principle," observes 25 Pae. 341, 12 L. R. A. 384. In this White, J., "that would justify the case it was held, that under the stat holding the index to be essential to nte the record of a deed is not com- the effective character of the record plete, so as to constitute constructive in the case of conveyance, would seem notice, untU it has been entered in the to require that the index to be kept index book. § 70] SOURCES OF INFORMATION. 73 Index entries are, however, frequently held sufficient to charge notice,*^ and this too, even though no description of the property is entered, but simply the words, "see record"®* or "certain lots of land;" *^ nor is it necessarily and essentially a prerequisite to a valid registration that the index should contain a description of the lands conveyed,*® and if it discloses enough to put a careful and prudent examiner on inquiry, and if, on such inquiry an ad- verse title would have been ascertained, the party will be held to have received notice. §69. Notice Lis Pendens. As a further precaution careful search must always be made for notices lis pendens, and attach- ments. These are usually kept in books separate from the records of deeds and mortgages, and very frequently are not noted on the reception or alphabetical indices, particularly in smaller counties where less method is observed than in larger and more active places. When filed according to law they create liens upon the land to which they relate, and afford notice to all subsequent purchasers. Whoever takes a title to property in litigation will be bound by the judgment or decree that may be rendered in the suit.®'' A fail- ure to show a lis pendens in the abstract has been held to create a liability for damages on the part of the abstracter.®* §70. Plaintiff and Defendant Indexes. The plaintiff and de- fendant indexes of the courts, when such are kept, should be further consulted for judgments against any of the parties, who at any time during the period that judgments are a lien on land, have held title to the property in question. The matter of pend- ing suits, in which the title to land is involved, may also be ascer- tained from the defendant's index. Where no notices lis pendens are required to be filed with the recorder of deeds, as is the case in many States, this, perhaps, will be about the only way in which the examiner can ascertain the facts. The index generally shows the present status of the case and refers to other records or files where its history may be obtained. 63 Pringle v. Dunn, 37 Wis. 449; effect as records there will be found Maxwell v. Hartman, 50 Wis. 667. statutes wliich have shaped the de- 64 White V. Hampton, 13 Iowa 260. cisions of the courts. 66 Bostwick V. Powers, 12 Iowa 456. 67 Crooker v. Crooker, 57 Me. 395 ; 66 Barney v. Little, 15 Iowa 535. Leitoh v. Wells, 48 N. Y. 585; Jack- Loeal statutes will go far in the solu- son v. Warren, 32 111. 331. tion of this vexed question. In most 68 Goldberg v. Title Co., 24 S. D. cases where index entries are given 49^ 123 N. W. 266. 74 ABSTRACTS OF TITUi. [§ 70 These books will be found far more satisfactory in their results than the indexes of the recorder's ofiSce, though not always avail- able to detect adverse matters. Should these useful books not form a part of the machinery of the clerk's office, recourse must be had to the judgment docket. § 71. Tax Records. A further search must also be made in the records of the county clerk's or auditor's of&ce for delinquent taxes, tax sales, forfeitures and judgments, the indices and aids by way of reference in this department being usually very ample, and affording all the information necessary. § 72. Offioial Certificates. It is frequently the custom of the examiner to append to an abstract of this character, the certificates of the officers having the custody of the records examined, yet in a majority of cases such certificates do not materially enhance the value of the examination as evidence, and unless forming a part of their official duty create no responsibility on the part of the certifying officers. § 72a. Municipal Records. Occasionally recourse must be had to the records of cities and other municipalities. These references, however, will be rare. In many States vital statistics are required to be kept and sometimes these records will be of much assistance in determining questions relative to birth and death. The actions of municipal boards in matters of vacation of streets and public grounds are often important and usually in sales of municipal land the ordinance by which the sale was authorized must be shown in connection with the deed of conveyance. §73. Church, and Parish. Records. It is not customary for examiners of title to extend their inquiries beyond the public records kept pursuant to law, nor will the exigencies of many cases demand a wider scope. The admirable system of registra- tion which exists in every State is amply sufficient for almost every purpose connected with the development of title and the preserva- tion of the muniments by which same is evidenced. But occasion- ally a missing link — ^birth, death, or marriage — can only be sup- plied by evidence aliunde the record, and to effect this, recourse must be had to less reliable testimony. Church or parish records are frequently resorted to in the de- termination of doubtful questions of pedigree — ^proof of birth, or death of ancestor, as well as to settle questions of legitimacy in § 73] SOURCES OP INFORMATION. 75 matters of succession. Nor is there any good reason why a parish register should not be received and credited. It has been held that they serve a purpose equivalent to that served by family records, and are fairly to be dealt with as equivalent to corpora- tion records, which are generally taken as evidence of such mat- ters as are recorded in the usual course of affairs.^' While there is not much authority on the subject in this country, yet all the analogies and reasons which apply to other presumptively correct documents apply to these.'*' 69 Hunt V. Chosen Priends, 64 Mich, in Philadelphia were held admissible 671. in a land controversy in Kentucky, 70 The question was decided in favor tried in one of the United States of such entries in an early ease in the Courts. It was there expressly held Supreme Court of the United States, that they were competent testimony, where the entries of burial in a church Lewis v. Marshall, 5 Pet. (U S.) 470. CHAPTER VI. INDICES AND REPEBENCES. § 74. Importance of indexes. § 81. The tract index. § 75. Patent systems. § 82. The irregular index. § 76. The Government tract book. § 83. The tax index. § 77. Field notes of Government sur- § 84. The judgment index. veys. § 85. Decrees and sales in chancery § 78. The original entry books. § 86. Grantees index. § 79. Document number index. § 87. Laying out the books. § 80. Long form entries. § 88. Eesume. § 74, Importance of Indexes. In many portions of the United States no indexes are kept by the examiner of titles, who relies, in the preparation of his abstract, solely upon such meager facilities and aids are are usually afforded by the public offices, the details of which were considered in the preceding chapter. A perfect and complete abstract, however, can be compiled only with the assist- ance of properly prepared indices and references. By the aid which they afford the examiner will be enabled to produce a per- fect chain of recorded title, however intricate or complicated it may be, while without them diligence and learning will avail but little, and the abstract, as a necessary consequence, will be incom- plete and lacking in many important particulars. §75. Patent Systems. In this age of labor-saving inventions it is not strange that many schemes should have been devised to lighten and abridge the labors of the examiner in the preparation of abstracts of title. These "systems" are usually protected by copyright or letters patent, and are warranted by their respective originators and proprietors to be fully adequate for every purpose and equal to all the exigencies that can possibly arise. Not infre- quently some of these patent systems possess elements of merit, and, in a limited way, may encompass the end for which they are designed. Experience has not demonstrated their usefulness, how- ever, but on the contrary, in most cases, has shown their utter inutility. As a rule they are highly chimerical, and in practice generally prove a fraud, a delusion and a snare. There is no royal road to abstract making, and the examiner 76 § 76] INDICES AND REFERENCES. 77 who desires to produce only just and perfect work will derive but little assistance from any method that seelis to dispense with con- scientious labor or to avoid the deep and thorough investigation essentially necessary to a full and accurate development of title. An abstract prepared by any of the patent methods which have been brought to the attention of the writer, if at all complicated or involving intricacies of title, must needs be imperfect, and hence unreliable, and counsel should reject such compilations, or at most pass only a qualified opinion. The methods detailed in this volume are neither patent nor copyright systems. They are the results of years of practical experience, and are those now employed by the abstract makers of Chicago, where this science has been more fully developed, perhaps, than in any other place in the world. They are freely given to the profession and may be used by any person.^ We may now direct our attention to the necessary equipment of a well appointed abstract office and the books that will be required for the proper and expeditious transaction of the business of ab- stract making. § 76. The Government Tra^t Book. Among the permanent archives of a local government land office are a series of township plats and tract books, upon which it is the duty of the register to note a proper entry of the fact of the sale of any land in the dis- trict. These tract books are arranged in the regular order of townships in a range, and of sections in the township, or fractional township, and afford all the necessary particulars of the method of the disposal of the land in the district ; description of land sold ; name of purchaser; price paid; number of certificate, etc. Where the land office is still in operation these particulars can be ob- tained from the register, and in districts where same has been dis- continued, the archives are usually deposited, in pursuance of an act of Congress, in the office of the Secretary of State, or some other designated officer of the State, in which the land office was situate. A copy, or compilation, of the Government Land Office records forms the foundation of the examiner's indices, and will be found an invaluable adjunct, if not an indispensable requisite, to all effective examinations showing the entire course of title. This index should briefly indicate the governmental description 1 This book is fully protected by methods herein described are given to copyright, and no person may appro- the profession and may be used by priate any part thereof without per- any person. mission of the author. But the various 78 ABSTRACTS OP TITLE. [§ 76 of the land ; the name of the purchaser ; the character of the entry, as sale, homestead, etc.; the date of entry; number of certificate, and note of cancellation ^ and re-entry, if any; and finally the issuance of patent, with date and name of patentee. Recourse for the latter information must be made to the General Land Office at Washington, if necessary, as the possession of the information is essential and will save much time, annoyance and many per- plexing questions to client and counsel, owing to the usual loose methods of early proprietors and the imperfection of county records. §77. Field Notes of G-oveminent Surveys. The field notes of the government surveyors afford the elements from which the plats and calculations in relation to the public surveys are made, and are the source wherefrom the description and evidence of lo- cations and boundaries are officially delineated and set forth. They contain a minute record of all the official acts of the surveyor in relation to the measurement of the public lands, establishing of boundaries, etc., and present, as far as possible, a full and com- plete topographical description of the country surveyed. A copy of these notes, as well as of the official township plats made in connection therewith, should be found in every abstract office, for the field notes of the original survey enter into and form part of the description of land in all the certificates of entry and patents from the government, and are of controlling importance in de- termining the true location of public lands.^ The original monuments, as long as they can be ascertained, afford the most satisfactory if not conclusive evidence of the lines originally run, which are the true boundaries of the tract surveyed, whether they conform to the plat and field notes or not, on the principle that monuments always control courses, distances, quan- tity, etc. These monuments are regarded as facts, while the field notes and plats indicating courses, distances and quantities, are but descriptions which serve to assist in ascertaining the facts,* yet when such monuments become lost or obliterated by time, accident or design, the notes and plats are all that remain to fix the original location of the monuments and determine true boundaries.* No 2 The Commissioner of the General 3 Hunt v. Eowley, 87 111. 491. Land OfS.ee has power, for cause, to 4 MeClintock v. Rogers, 11 111. 279 ; cancel entries of public lands. See, Watrous v. Morrison, 33 Tla. 261; Parsons v. Venzke, 4 N. Dak. 452, for Kincaid v. Dormey, 47 Mo. 337. a very f uU and lucid discussion. And 6 Sawyer v. Cox. 63 lU. 130 ; Bauer see, Jones v. Meyers, 2 Idaho 793. v. Gattmanhausen, 65 111. 499. §78] INDICES AND EEFERENCES. 79 description can be more definite, certain and satisfactory than according to government survey.® § 78. The Original Entry. The books used in the business of abstract making resemble, in many particulars, those in common use in mercantile transactions, the day book and ledger of the mer- chant bearing a strong analogy to the original entry and index of the examiner. The series of books designated as "original en- tries," comprise an epitome of the transactions of the day in the various record offices of the county, so far as the same may in any way affect or implicate the title to land, set forth with whatever degree of fullness the exigencies of the occasion will admit, or the inclination of the examiner may dictate. There is no special method of arranging these books, the convenience of the compiler usually determining this point, the only essential being that the transactions of the day are shown under .proper chronological heads. Where the volume of business daily passing through the recorder's office is very large, only a brief note, showing the na- ture of the instrument, parties, date, and a condensed description of the property, can be shown on the original entry, the date at the top of the page showing the date of filing for record, thus : Nov. 29, 1882. Doc. No. Grantok. Geantbb. Inst. Date. Desceiption. In Chicago, where from two to three hundred instruments fre- quently pass through the recorder's office in a single day, the above method is pursued, the examiner making his entries from the original instruments, the only practical system under circum- stances similar to the foregoing. This information may also be obtained from the reception indexes of the recorder's office, should such books be kept, and while this might be sufficient in many of the cases, yet oversights or omissions are liable to occur, particu- larly where the deeds are noted in alphabetical and not numerical order. The dang:er is apparent when it is remembered that, where a deed properly acknowledged and certified, is left for record with the recorder, it takes effect from that date, although not entered on the receiving book until afterward.' 6 Kruse v. Scripps, 11 lU. 98. T Poplin V. MundeU, 27 Kan. 138; and see, Haworth v. Taylor, 108 HI. 275. 80 ABSTRACTS OP TITLE. [§78 It will sometimes happen that errors are made by the recording officer in transcribing. "Where the examiner's entry is made from the original document these errors may be detected and corrected on the compilation of abstracts. In practice this is a circumstance of not infrequent occurrence. Where the original instrument forms the basis of the entry a further index is necessary to furnish the book and page of the record for ready reference in making the abstract, which is easily accomplished where the now very common system of document numbers is employed. After the instrument has been formally filed for record the actual transcribing does not occur for several days or perhaps weeks, yet as the instrument takes effect and operates as constructive notice from the time it is filed, from obvious reasons the examiner must obtain his notes of same at that time and not wait for the uncertain contingency of actual tran- scription. The document number is placed on the instrument at the time of filing, and forms a portion of the original entry; it is posted as well on the tract index, and in making up the chain, as hereafter explained, furnishes a key by which the particular in- strument is always identified. §79. Document Number Index. As the numbers run in con- secutive order, a book called the Document Number Index is pro- vided, in which all the numbers of the series are first written or printed. At the close of business hours of each day, all the in- struments which have been transcribed during the day are col- lected, and opposite the number of the deed in the Document Num- ber Index, are written the book and page on which it has that day been recorded, thus furnishing a ready and easy reference to the books of the Register 's office, thus : 1—100. Doc. No. Book. Page. Doc. No. Book. Page. 100 614 520 § 80. Long Form Entries. "Whenever practicable, the original entry may consist of a full abstract of every instrument. In the cities this is frequently impossible, but in sparsely settled coun- ties, or in places where only a small number of conveyances are filed daily, it can be easily accomplished, and the examiner will §81] INDICES AND REFERENCES. 81 then have, in his own possession, a complete duplicate of the material parts of all the records of the county, an acquisition that circumstances may make of inestimable value. By this method the greater portion of the abstract can be compiled without con- sulting the records, thus effecting a great saving of time, labor and expense, and in many other ways it will be found equally advantageous. It is unnecessary to dilate on the subject of care and accuracy in the compilation of these entries, or the necessity of thorough revision. When made in short form from the orig- inal documents, errors may be detected on abstracting the deed from the records, but if the long form system be used, an error perpetrated in the entries will be repeated in the indexes, and again in the abstract, furnishing endless confusion and a remote possibility of a law suit for damages. While this method possesses obvious advantages it is not with- out disadvantages. An abstract is presumed to represent the actual condition of the record and to have been compiled there- from. The record may be erroneous, but in such case so also should the abstract. The examiner's entry may be a correct synopsis of the instrument, but if the abstract is made from such entry and not from the record it may not be a true recital of the instrument as it appears upon the record. For this reason, even when a long form of entry is used, the abstract should be com- piled from the records rather than from the entries, and if divergencies appear they should be properly noted. In any event, even though the abstract may be prepared' from the examiner's own long form entries it should nevertheless be compared with the record before it leaves his hands. §81. The Tract Index. The Tract Index occupies much the same position in the abstract office, that the great ledger does in the counting room. It is the receptacle for all the notes of the entry books, where the great mass of each day's transactions is separated, classified and arranged, and exhibits at a glance on its broad pages the balance sheet of all the land titles of the county. It is the foundation stone upon which the entire super- structure of the business rests, and the source from whence the examiner draws all his primary information in preparing the abstract. This index is arranged with sole reference to the land in the county, by sections or parts of sections in ease of unsub- divided lands, and by lots, blocks or subdivisions in respect to such as have been resurveyed and. platted. For convenience it should contain, as far- as practicable, all the specific allusions to Warrelle Abstracts — 6 82 ABSTBACTS OF TITLE. [§81 particular tracts found upon the records, whether consisting of deeds, agreements, releases, attachments, sales, lis pendens, or other instruments, in any way affecting title to such tracts, or mentioning same, or any part thereof. In addition all other in- struments, capable of definite location, though containing no description, should, as in case of specific instruments, be posted under the particular classification to which they properly belong. For ordinary use six or eight quire demy ® books will be found the most serviceable, the number of volumes being regulated by the size of the county, population, prospects, etc. The books should be ruled across with heavy and faint blue lines, and the page divided with red lines in the following proportions : Sec. 16—1—23. 2002 ino. Doe & wf Eich'dEoe NW%N"W% M. 1-16-78 2-10-78 1—25 A— 515 The foregoing sample page would be posted from the original entries as follows : the left hand column is filled by the document number, the second column by the grantor's name, the third by the grantee's, while the wide space next following is devoted to a brief description of the property. The nature of the instrument, indicated by the initial letter or some abbreviation, occupies the next space, while in the two succeeding columns much informa- tion may be condensed into little space by writing on both the heavy and faint lines. Thus, in the first column the upper line is intended to represent the date of the instrument; as, first month, sixteenth day, 1878, the lower line in like manner representing the date of record. So, in the last column, the upper line will repre- sent the book and page of the entry, which, if written in extenso will be the only reference needed on making the chain, the entry supplying all the desired information that could be afforded by the record; the lower line of this column represents the book and page of the record. Should the examiner so desire, another column may be added, in which are noted "remarks," notes of 8 The demy page is reeommended mainly on account of its width, but cap size is more convenient for handling. The demy sheet is 16x21, making a page 16x10%; the cap page is 14x8%. For the original entry a four quire cap is reeommended. Should a double page be devoted to the tract index cap will also be found to be the more convenient form. § 82] INDICES AND REPEEENCES. 83 reference, satisfactions, re-records, etc., all of which will be found to greatly enhance the value of the volume. In posting these books, economy of space should always be kept in view, otherwise they wiU soon become numerous and cum- bersome, greatly retarding the examiner's labors. The faint lines should always be used in case of long descriptions, and the poster is allowed considerable latitude in the matter of abbreviation and condensation. So long as the identity of the parcel is preserved the description used in this book is of little moment; for it wiU be remembered this is but an index to the place where the full and original description may be found. For example : A description commences at the northeast corner of the northeast quarter of a stated section, town and range, and describes in a lengthy manner, by metes and bounds, an irregular shaped tract which contains eleven acres, the description ending at the place of beginning. It will save time and space, and be just as correct as an index, to post the parcel as "11 ac. in N. E. cor. N. E. i^." § 82. Irregnlar Index. This index is designed as a receptacle for all matters, except judgments, that from their nature do not admit of specific posting in the tract indices. Of this nature are general powers of attorney, unless the examiner sees fit to keep a separate book for same; releases and satisfaction pieces, which describe no property and are incapable of definite location ; general confirmations, assignments, afiSdavits, etc. The index consists of two books, arranged alphabetically, by grantors and grantees, and is used, in compiling the chain, in exactly the same manner as the judgment indices. It is posted in the same manner as the tract index, except that in place of the . description of the property is noted a brief statement of the subject-matter of the instrument, the other details being the same. In all compilations this index should be carefully searched for the names of all parties, grantor and grantee, who at any time during the period covered by the examination have held title to the land in question, or possessed any equities therein. In case of variance in the orthography of a name it is advisable to post it both in the category to which the spelling of the name would properly consign it, and in the section where the examiner has reason to believe it rightfully belongs. Thus should the name as found be "Lauson" and the examiner from other indicia have reason to believe the name is "Slauson," the two names, to insure accuracy, should be noted on the index, the latter being identified by any system of marks the examiner may adopt to show that it is a substitute. 84 ABSTRACTS OP TITLE. [§83 § 83. Tax Index. With the exception of sales for taxes, every- thing capable of such treatment should be posted in the tract in- dex. Tax sales, however, can best be handled in a separate volume, and as a large portion are followed by redemption much dead matter will thus be kept off those books. This index is posted after every sale, and should be arranged to show : the description of the property ; the name of the person against whom the tax is assessed ; the nature of the tax for which the sale was made, as general, spe- cial, state, county, municipal, special assessment, and the like; the amount of the tax; the year for which it was levied; the date of sale; and if desired the name of the purchaser. On the right hand margin of the page a space should be left on which may be entered the fact of redemption. At the top of the page the section or subdivision is written, as in the tract index. In compiling the chain of title this book is consulted in the same manner as the tract index, and a list of all the sales, forfeitures, etc., taken off, which is then sent to the office of the custodian of the tax records and verified by his books. All the redemptions are stricken from the chain, and existing liens shown as hereafter directed. A note of all the redemptions is then made in the index, thus : Sec. 10—12—14. s w 14 s w % hos. Higgins Gen 1880 Apr. 10 1881 10, 50 S. E. Smith Red. June 1, 81 Should circumstances permit the examiner to procure a daily list of redemptions, this index would be much more serviceable, and considerable labor would be saved in preparing the abstract. Such a course, however, is rarely practicable, and the method above indicated is that usually followed. It has now become a common practice for examiners of title to show special assessments and impositions of like character. "When this is done the better way is to keep a special index to all con- firmed special assessments and where inheritance taxes are levied on the estates of decedents a further index covering these matters should also be provided. Confirmed special assessments may be noted on the general tract index and inheritance taxes might be posted in the irregular index, but the better plan, and that which is conducive to the best results in abstract making, is to keep spe- cial indices in both cases. §86] INDICES AND KEPERENCES. 85 § 84. Judgment Index. The Judgment Index consists simply of an alphabetically arranged index of names, taken from the court files every day, and shows : the name of the judgment debtor ; the plaintiff or judgment creditor; the court in which the judg- ment is docketed; the general number of the case; the time of rendition or docketing; the amount of the judgment and costs, and the fact of satisfaction in the same manner as tax liens. In practice this book is used the same as the tax index. The follow- ing will be found a suitable form for the page : 201 Smith, John E. Union Towing Co. Circuit Mar. 10 1881 150 00 15 00 Sat. Mar. 15, 1882 If desired, a further column may be added, showing the nature of the suit. This book is used only for money judgments, or such as create a lien on land. Decrees in chancery, or actions and pro- ceedings directly involving the title to land, are posted in the gen- eral tract indices. § 85. Decrees and Sales in Chaacery. No separate index need be kept for proceedings in court of an equitable nature. For pending suits a note of the lis pendens or attachment as found in the registry of deeds is sufficient. For decrees, orders or sales made in pursuance thereof an original entry should be kept as in case of deeds, etc., showing as fully as may be the entire transac- tion, and posted as other instruments are in the general tract in- dex. These proceedings have all the stability of conveyances be- tween individuals, and form permanent muniments of title. Exe- cution sales may be noted in like manner. For greater convenience maniJ- examiners keep special indices of decedents' estates, as well as of the estates of minors and other persons under disability. Where this can be done the practice is recommended. In large and populous counties some such a course becomes almost a necessity. § 86. Grantees Index. In addition to the books described in the foregoing paragraphs, all of which are indispensable in a properly equipped abstract office, there are a number of supple- mental volumes that may be used to advantage. Chief among these supplemental books may be mentioned an index to grantees ar- ranged alphabetically, and, for the purpose of more ready refer- 86 ABSTRACTS OP TITIJ!. t§ 86 enee, by vowel sounds. In this book are written the names of all grantees, and after same the book and page of the record where the name appears and a reference to the book and page of the original entry of the examiner. The name is written but once, all subsequent transfers being posted opposite same by simple refer- ence to book and page. A form for this book will readily suggest itself. The primary object of this index is to furnish a ready means of ascertaining the present or past interests of any individual who at any time has held the legal title to lands in the county, and to facilitate search for real estate standing in the name of judgment debtors. § 87. Laying Out the Books. Considerable judgment must be exercised in laying out a set of abstract books, not so much for economy in material, though this may be an object, but for econ- omy of time in their use, which is a very important consideration. The aim of the examiner should be to have his indices preserve such a correspondence in all their parts that posting shall cease in every division of the work at about the same time. To attain this end, where a section or subdivision is thickly populated and sales are frequent, considerable space should be devoted to it, and, if necessary for greater convenience, the land may be indexed by half or quarter sections instead of sections. In less active locali- ties, the index may be by sections and less space should be used. In a new county this question must be determined by geographical considerations, present location of towns, railroads, water ways, etc. In older places the experience of the past will usually furnish a safe guide in this respect for the future. Alphabetical indexes are laid out on technical and arbitrary principles based upon experience in the distribution of initial let- ters in names. Thus it is found that certain letters occur much more frequently than others in the commencement of names, and space must be given accordingly. The table on the opposite page will be found a safe guide : Thus it will be seen, in a book containing thirty pages one page will be sufficient for names beginning with the Letter "A." Names beginning with the letter "B" are much more frequent, and hence two pages should be devoted to these names. And so the number of pages for each letter will be proportionately in- creased with the increasing size of the book, so that if it contains 480 pages, forty of them may properly be set aside for the letter "B." §88] INDICES AND KEFEEENCBS. 87 SCALE FOB INDEXING BOOKS. o w o O 00 § 1-1 O 5 1-1 O H O 00 O O N O O N O O w « O <* M O M O CO m ■* O O O CO O 00 A 1 1 1 2 3 3 3 4 5 6 6 6 6 7 8 8 9 10 10 11 11 12 12 12 B 2 3 4 6 7 10 12 13 15 17 ps 20 21 23 25 26 28 30 32 34 35 37 38 40 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 D 2 3 4 5 5 6 8 8 9 10 11 12 13 13 14 15 16 17 18 18 19 21 22 B 1 1 2 2 3 4 4 4 5 6 6 7 7 7 8 8 8 9 10 10 11 11 12 F 1 3 3 4 5 6 7 7 8 9 10 11 11 12 13 13 14 15 16 17 18 19 20 G 1 3 3 4 5 6 7 8 9 10 11 11 12 13 14 15 16 16 17 18 20 21 22 H 3 4 6 7 9 10 12 14 14 16 18 19 21 23 25 27 28 29 30 32 33 34 36 I 1 1 2 2 2 3 3 3 3 3 3 3 4 4 5 5] 5 6 6 6 6 6 6 J 1 2 3 3 3 4| 4 5 5 6 6 7 7 8 8 9|10 10 10 11 11 12 12 K 1 2 2 3 4 4| 5 6 6 7 8 9 10 11 11 12|13 14 15 15 15 15 16 L 1 3 3 4 5 5| 6 8 8 9 10 11 12 13 14 15 16 16 17 18 19 19 20 M 3 4 5 7 S ]0|11 13 15 16 18 18 20 21 23 25 26 27 29 31 32 34 36 Mc 1 1 2 2 2 3| 3 3 4 4 4 5 5 6 6 6 6 7 7 7 7 7 7 N 1 1 2 3 3 3| 4 4 5 5 6 7 7 7 ,8 8 9 9 10 10 11 11 12 o 1 1 2 3 3 3| 4 4 5 6 6 7 7 7 8 8 9 9 10 10 11 12 12 p 1 1 2 3 3] 4 5 5 6 7 7 7 8 8 9 10 10 11 1111 12 13 14 Q 1 1 1 1 1| 1 1 1 1 1 1 ;i 2 2 2 2 2 2 2 3 3 3 3 R 2 3 * 5 6| 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 S 3 5 7 8 ]0|13 14 16 17 19 22 23 25 27 29 31|33 35 36 38 40 42 44 T 2 3 4 5 6| 7 -8 9 10 11 12 13 14 15 16|17 18 19 20 21 22 23 24 V 1 1 1 1 1| 1 1 1| 2 2 2 2 2 2 2 2 2 3 3 3 3 4 4 V 1 1 1 1 1| 1 1 1| 2 2 2 3 3 3 :3 3 3 3 3 3 3 4 4 w 2 5 6 9 11|13 15 17|19 20 22 24 26 28 29 31 33 35 37 39 40 42 43 X 1 1 1 1 1| 1 1 1| 1 1 1 1 1 1 111 2 2 3 3 3 3 Y 1 1 1 1 2| 2 2 2| 2 2 2 3 3 3 3 3 3 3 3.4 4 4 4 Z 1 1 1 1 1| 1 1 1| 1 1 1 1 1 2 2 2 2 2 2 3 3 3 3 § 88. Resume. The foregoing brief sketch, it is hoped, will furnish sufficient hints to enable one with no previous experience to lay out and keep a set of abstract books in a methodical and intelligible manner. Neatness is a prime necessity in compiling the books. Chirography should be plain and distinct. Only the very best writing fluid should be used. Memoranda, not of a per- manent character, should be made with a hard lead pencil, and as little as possible should be made. "When the memoranda has an- swered its purpose it should be erased. For their better preserva- tion books should be encased in canvas covers and a fire-proof receptacle should be their abiding place at all times when not in actual use. Many things will suggest themselves to the examiner, arising from local causes, while his own i;ngenuity will enable him to improve on the forms here given. Having then started the books, the next thing in order is to prepare an abstract from them, and this will form the subject of the next chapter. CHAPTER VII. COMPILING THE ABSTRACT. 89. Generally considered. § 98. 90. Extent of the search. § 99. 91. Making the chain. §100. 92. Tormal parts. 93. The caption. 94. Arrangement of the abstract. §101. 95. Synopsis of instruments. §102. 96. Fullness of narration. §103. 97. Instruments shown for refer- ence. Examiner's notes. Irregular instruments. Reference to original instru- ments and private memo- randa. Abbreviations. Letter press copies. Concluding certificate. §89. Generally Considered. Abstracts of title in the United States, which are usually prepared by professional examiners, do not, as a rule, disclose, except inferentially, any matter or thing affecting title save what appears of record, and searches are main- ly restricted to the public records of the county. Ordinarily this is sufficient, and a careful search will reveal all that is necessary to a proper estimate of the title, and fully protect intending pur- chasers. In England, where the abstract is prepared from orig- inal documents, it is customary to give a far wider range to the examiner's efforts and to include not only the material parts of deeds, wills, etc., but of records and private acts of Parliament, and even of public acts passed for private purposes, which might in any wise implicate or affect the title; and to these are added such facts as fill up the interval of title, as descents, deaths, mar- riages, births, burials and other circumstances generally called matters in pads,^ and when it is necessary to prove a pedigree, as where a descent occurs in the course of the abstract, in the absence of better evidence the examiner has recourse to wills of relatives, extracts from parish books, from family bibles, and even from tombstones.2 Our system of registration, of probate proceedings, and of judicial inquiry and determination, and the legal effect thereof, renders the English examiner's methods useless to a large extent in the United States, yet it cannot be denied that oppor- tunities frequently occur for a judicious breach of the conven- 1 1 Prest. on Abstracts, 43. 2 Brown 's Law Diet. 5. 88 § 90] COMPILING THE ABSTRACT. 89 tional observance of record evidence only, and for the introduction of what may properly be called matters in pais. A number of in- stances of this kind will be found noted on the succeeding pages of this book. § 90. Extent of the Search. An examination, upon its face, purports to show the course of title from a definite date to another definite date, and the fair and reasonable import of the undertak- ing is, that the examiner has made a fuU and true search relative to, the title during that period and has noted on the abstract every transfer, or other matter, affecting the same, actually made and entered of record between those dates. It has been held, that he is under no duty to inquire into the existence of any judgments entered, or conveyances recorded, prior to the date mentioned as the commencement of the search, neither is he required to ascer- tain or certify as to any lien arising under any such prior judg- ment, although the same may have first atached and become opera- tive after that time by reason of the fact that the judgment debtor then first acquired title to the premises; nor is he bound to in- quire or state whether the title vested in any grantee, during the period covered by the examination, was affected by any prior con- veyance or any estoppel growing out of any covenants therein.' It must be obvious, however, that an examination made in strict conformity to the foregoing will in many instances defeat the very object of the search, and hence it is customary to show subsisting tax and judgment liens, even though accruing prior to the date of the commencement of the examination, and, except in case of con- tinuations, an abstract deficient in this respect should be rejected by counsel, as no safe opinion can be predicated upon it. In all cases where a lien first attaches during the period covered by the examination, it should be shown, whatever may have been its in- ception, and any departure from this rule is to rob the abstract of its character of a trustworthy guide and reduce, if not vitiate, its value as an evidence of the true statq of the title. In many localities it is or has been customary to dispense with a formal abstract, and in its stead the examiner merely "certifies the title," as being "good," "bad" or "doubtful," in an in- dividual named, basing his certificate upon his personal examina- tion of the records. This is merely an opinion of title, and its 8 Wakefield v. Chowen, 26 Minn. 523; State v. Bradish, 14 Mass. 296; 379; Dodd v. "WiUiams, 3 Mo. App. Ford v. Unity Church, 120 Mo. 498. 278; and see, Ely v. Wilcox, 20 Wis. 90 ABSTEACTS OP TITLE. [§ 90 wortli depends wholly upon the learning, ability, and financial responsibility of the individual rendering it. Again, while the examiner may present a synopsis of the deeds, etc., it is simply for the purpose of showing, like the English ab- stract, the present title of some specified person, the chain com- mencing at some given point as the root. In a case of this kind unusual care is required, lest a prior conveyance operating by way of estoppel, may not defeat the title shown. It is customary, in an examination similar to the one under consideration, to commence with a deed showing title in vendor or his grantor, and thence con- tinuing down to the date of the certificate. There is not wanting authority to support an examination of this character, and it has been held that a deed recorded before the grantor has any record title may be safely disregarded in examination of title, under the system of registration and notice adopted in the different States of the Union; that such a deed would not be constructive notice to any innocent purchaser ; * and further, that a purchaser finding an apparently valid title of record, is not expected to look behind it.^ The rule, however, is unsafe and does not prevail generally,* and counsel before passing on an examination purporting to show no more than above stated, should have satisfactory assurance that no prior deeds exist of record, or his opinion should indicate the possible defects of title resulting therefrom. If the examiner is directed to commence his search at a given period, or with a specific event in the devolution of title, he wiU, of course, discharge his whole duty by a true showing of what has transpired since that time or event, but a purchaser will there- by assume a risk. §91. MaMng the Chain. Before commencing the formal ab- stract a preliminary sketch should first be made from aU the indices. This sketch, called the "chain," is simply a series of brief notes of all conveyances, incijmbrances and liens affecting the property under consideration, as shown by the tract index, and, where the original entry is meager, the examiner uses these references in making full abstracts of the instruments from the records. It also shows what instruments are associated with the 4 Dodd V. Williams, 3 Mo. App. 5 State v. Bradish, 14 Mass. 296. 278; and see, Ford t. Unity Church, 6 See "Estoppel," "Notice" and 120 Mo. 498; Calder v. Chapman, 52 "Registration." Pa. St. 359; State v. Bradish, 14 Mass. 296; Ely v. Wilcox, 20 Wis. 523. § 93] COMPILING THE ABSTEAOT. 91 names of those whom the tract index invests with title, that appear upon the irregular index; the names of all persons who at any time have held title which are found upon the judgment index; and all tax sales or forfeitures of the land in question as shown by the tax index. These latter are then verified by comparison with the records, and all satisfactions dr redemptions stricken from the sketch. The instruments, proceedings, etc., are then numbered and arranged in the order in which the abstract should be written, and furnish a reference guide for this portion of the work. i §92. Formal Parts. The abstract should be prepared in a neat and orderly manner, and so disposed as to facilitate the labor of counsel in passing on the title. A formal caption should ap- prise the reader at the outset of the subject of the examination, while the different searches should be arranged under classified heads, and for purposes of convenient reference the various con- veyances and statements should be numbered consecutively from the beginning. The result of the search should be recapitulated at the conclusion by a certificate covering all the essential features of the examination. The formal parts should be brief, yet explicit, and drawn with great care, particularly the examiner's certificate, for it is this which imparts to the abstract its value as evidence. It is recommended, that the abstract be written with a pen and not with a type-writer. This is a safeguard against mutilation, forgery, or changes of any kind after it has left the examiner's hands. Specifically water-marked paper is another safeguard which should be employed whenever possible. §93. The Caption. The object of the caption is to definitely describe the subject of the examination. It would seem to be the practice of Eastern abstract makers, following the English prec- edents, to insert here the name of the person for whom the search is made, and frequently, to describe the abstract itself as the ex- emplification of the title of some particular individual.' But this is usurping the province of the examining counsel, who alone should say where and in whom the title rests, and that only after a careful and diligent inquiry into all the questions raised by the abstract, both directly and inferentially. The work of the exam- iner is to present to counsel all that appears of record concerning a specified tract of land; no more. The counsel must say in whom, under the application of legal rules and principles, the title rests, 7 See Curwen on Abstracts, 38 ; Willard on Conveyaneing, 551. 92 ABSTEACTS OF TITLE. [§ 93 or is vested. The caption, therefore, should consist of a full de- scription of the parcel or parcels of land under examination, and the time from which the search is made. The following is the form of an ordinary caption : EXAMINATION OF TITLE » to Lot Five (5) of Block Four (4) of Bond's Subdivision of the North East quarter of Se&tion Twenty-Three (23) Town Thirty-Seven (37) North, Range Thirteen (13) East of the Third Prin^pal Meridian; except the South one hundred acres, and also one acre, in the North West corner of East one half (i^) of said quarter section, deeded to the School Commissioners. Descriptions of platted lands are frequently confined to the rec- ord title of the plat, which fails to provide a full designation, and the description thus employed in the deeds is also used in the cap- tion of the abstract. When such is the case it is a good plan to fur- ther indicate the location of the property with reference to the original division, thus : Sub-Block Three (3) of Block Four (4) of Sheffield's Addition to Chicago, Cook County, Ills. The premises in question are located upon the North half of the North East quarter of Section 39, Town 40 North, Range 14 East of the 3d Principal Meriddan. So also, it may happen that a subdivision is laid out on several parcels, in which case it may be deemed desirable to show the par- ticular parcel in which the lots under examination are located. The caption would therefore vary a little from that last shown. As for example : Lot Four (4) in Block Two (2) in Rockwell's Addition to Chi- cago, Cook County, Ills. Said addition is laid out on the West Half of the North West quarter of Section 18, Town 39 North, Range 14, East of the 3d Principal Meridian, and the North East qumter of Section 13, Town 39 North, Range 13 East of the 3d Principal Meridian. 8 If desired the word "abstract" lish method, the latter more fully may be employed instead of "exam- expresses the idea involved and is in ination." The former is the Eng- common use in this country. § 93] COMPILING THE ABSTRACT. 93 The Lot in qitestion falls within the North East quarter of Sec- tion 13 aforesaM. When the early stages of title, prior to the subdivision, are shown, the foregoing method often becomes a great help to counsel in examining the abstract. If the examination is of two or more parcels the caption should clearly indicate this fact and the description of the different par- cels should be neatly separated. The following will serve as a precedent : The West half of the South West quarter of the North East quarter of Section 15, Town 39 North, Range 13, East of the Third Principal Meridian. Also; That part of the West half of the North West quarter of the South East quarter of saM, Section lying North of the Barry Point Road. Should the examination be a continuation of a former search, the words "Continuation of" may be placed at the beginning of the caption, preceding the word "Examination." But while this form is employed by some examiners its use is not recommended, as the fact is fully shown by the time clause as hereafter described. If desired the word "Abstract" may be employed instead of "Examination." This is the English style and many examiner's prefer it. Where the examination commences at the source of title, as where a devolution from the United States is shown, no announce- ment of the time from which the search dates is necessary, but when any intermediate point is selected, it is customary to indi- cate same. This is accomplished by a simple statement of the fact immediately following the description, and neatly separated from what precedes and follows by dashes, thus : Commencing this examination Oct. 9, 1871. The certificate, when properly drawn, will always show the re- spective dates covered by the examination, but many examiners prefer to indicate these facts in advance, and when such is the ease, the time clause should read so as to show the termination as 94 ABSTBACTS OP TITLE. [§93 .well as the commencement of the search. When the examination is partial, and does not come down to include present time, this method is strongly, recommended. In such a case the time clause might read as follows : Commencing this exammation Oct. 9, 1871, and hringing the same down to include Sept. 7, 1874. Where the examination includes several distinct parcels, and the search does not cover the same period of time as to all of the parcels, this fact should be indicated at the start ; thus : As to Lots 13 to 16 inclusive, in Block 5, we bring our examina- tion down to include March 3, 188.6. As to the remmnder of said prem,ises we bring our examination down to include the date hereof. In ease of a continuation of a former search the time clause should read somewhat as follows: Last examination made by us dated March 3, 1879. or should the search have been made by a different examiner, Last examination made by Handy, Simmons & Co., dated June 7, 1880. It may be that the examination is designed to show only a par- ticular title antedating the actual time of the search. In such case some initial statement disclosing the fact is necessary to avoid confusion, and this may be accomplished by some such statement as the following: We bring our exa/mination down to include the title to said premises acquired by Delbert A. Clithero by the deeds to him herein shown. It sometimes happens that the client desires a search only from some particular time, and selects some particular instrument as the basis of his title. In this case, the instrument selected should form the initial number of the abstract, and the time clause should read substantially as follows : We assrime, by direction, that John Smith acquired title to the fee of the land described in the caption hereto, on the 10th day of § 94] COMPILING THE ABSTRACT. 95 April, 1873, hy the instrument shown as number one of thds ex- amination. Frequently the examiner will be called upon for partial, or special examinations, either of land or concerning individuals, in which case the caption should explicitly state all the points cov- ered by the examination, and, if necessary for greater certainty, negative such as are not; as Special Examination for Judgments and Fending Suits in the Circuit and Superior Courts of Cook County, Illinois, against George P. Willia/ms and John B. Smith. Judgments against John Smith disregarded. Examinations for special conveyances, for real estate standing in the name of judgment debtors, for taxes, etc., should be treated in the same general manner. Where the examination is confined to the elucidation of a single issue, it becomes more properly an abstract of the particular point under consideration, and is so denominated; as, Abstract of A Tax Title to in-lot twenty-fou/r, of the original plat of the village of Edgerton, Green county, Wisconsin, acquired under amd hy virtue of a sale made May 10, 1879, for the taxes of 1878. §94. Arrangement of the Abstract. The different convey- ances and stages of title are usually shown ia chronological order so as to present, as far as possible, a connected chain, and are numbered seriatim from the beginning. Many examiners show the deeds and grants collectively, while the mortgages and liens are grouped together in the same manner under a classified head. This arrangement, though widely used, is inconvenient and fre- quently distracting to counsel. The liens and incumbrances when connecting title should be set forth in regular chronological order in conjunction with other instruments, and releases or discharges should immediately follow the incumbrance or lien which they purport to affect, irrespective of the time they bear date. The aim of the examiner should be to present, so far as may be, the course 96 ABSTRACTS OP TITLE. [§ 94 of title in unbroken sequence through whatever forms or instru- mentalities it may pass. Judgments against the person, me- chanic's liens, taxes and tax sales, may be shown after the course of title has been traced, in the shape of appendices and under appropriate heads. Decrees, judgments, orders affecting the land, and tax deeds, of course appear in regular order in the body of the abstract. Official deeds, resulting from execution or judicial sales, should be preceded in the former case by the judgment, in the latter by the special proceedings and decrees upon which they are founded. As a further aid in effecting a correct and systematic arrange- ment of the instruments shown in an examination, an illustration in the form of a chain is herewith given. This title, while it would present but few difficulties, is yet sufficiently intricate to explain the method. EXAMINATION OF TITLE to The N. E. 14 Sec. 10, T. 1 N., R. 23 E. 1. V. 8. to A? Patent All Aug. 1, 1839. 2. A. to B. Deed All Dec. 15, 1839. 3. B. to C. Deed All June 10, 1845. 4. C. to D. Deed All May 3, 1850. 5. D. to G. Deed Und. l^ June 1, 1850. 6. G. to H. Deed Und. 1/2 ^pril 11, 1855. 7. D. to E. Deed Und. 1/3 July 2, 1852. 8. E. to F. Deed Und. % Sept. 12, 1853. 9. F. to H. Deed Und. ^2 -^pnl U, 1859. 10. H. to M. Deed All Oct. 8, 1859. 11. State to I. Tax Deed All March 1, 1850. 12. I to J. Quit Claim All Jan. 2, 1851. 13. J. to K. Deed All May 15, 1851. 14. K. to L. Deed All Feb. 26, 1857. 15. L. to M. Deed All Oct. 8, 1859. 9 The above iUustration is for ar- of every instrument and proceeding rangement only; of course, in com- must be given, piling the abstract, a full synopsis § 95] COMPILING THE ABSTRACT. 97 16. M. to N. Deed All Nov. 1, 1860. Judgments. Tax Sales. Examiner's Certificate of Search. ■ The foregoing sketch, though brief, conveys, in some measure, an idea of the arrangement of a chain of title. From Nos. 1 to 4 the divestiture of the title from the government and its devolution through mesne conveyances is regular and without interruption. At No. 5 the ownership of the land changes from severalty to common, an undivided one half being vested by No. 6 in H. As H, in the devolution of title, subsequently becomes invested with the remaining one half, a stop should be made at this point and the title to such remaining one half traced until it again becomes merged in H. This is accomplished in No. 9. The reunited title should then be distinguished from what has preceded by a short dash, and the next conveyance. No. 10, should form another initial point, from which, if no other obstacle intervened, the chain would be continued. But during the devolution of the original title a tax title has been created by a grant from the State. This title is independent and adverse, and if there should be no subsequent merger would be properly shown after the original title had been fully traced. In the illustration this title is afterward acquired by M, therefore, as he now owns the original title, such tax title should at this point be traced to him. A broad dash should there- fore separate the chain and the course of the tax title should be followed until M receives the investure, which is accomplished in No. 15. Here the broad dash is again employed to separate the tax title from the original, and the full and reunited course is continued in the deed from M to N. The judgments and tax sales, if any, follow as special appendices. An abstract thus arranged greatly lessens the labors of counsel in preparing an analysis,^" and by reason of its coherency presents most, if not all, of its salient features on first perusal. § 95. Synopsis of the Instruments. In England, abstracts are prepared after a uniform system which has long been observed by the conveyancers of that country, and the impress of which is 10 A precedent for an analysis of title ia given in § 600. Warvelle Abstracts — 7 98 ABSTRACTS OF TITLE. [§ 95 plainly discernible in many portions of the Eastern part of the United States." It is very methodical and precise, and in view of the differences in the sources of information, as well as the information itself, and of the effect which m,any of the matters there required to be shown have upon title, is perhaps highly con- ducive to the end desired, yet after all it is more a matter of prec- edent and the observance of established forms than of real utility. Should the taste of the examiner so incline, or counsel so direct, ■the instruments may be displayed after the English model, which is, briefly, as follows : The abstract is usually written on "brief" paper, which is divided by three real or imaginary longitudinal lines, thus leav- ing a page with four divisions which are technically known as "margins." The outer, or left hand margin, is left clear for the person investigating the title to insert any note or intended in- quiry which may suggest itself during the perusal of the abstract, or it may sometimes be used by the abstract maker for the inser- tion of a note or statement necessary to a proper display of the title. The caption is written from the third margin. The descrip- tion of the parties, as well as the testatum, is usually written from the outer margin. The parcels, that is the descriptions of the property, are invariabl3' set out from the third inner margin. The habendum is most frequently written from the second inner mar- gin, while the recitals are almost invariably written from the first inner margin. ^^ This method undoubtedly possesses some ad- vantages, the chief merits being, that it enables counsel at a glance to refer to any portion of an instrument without having his at- tention diverted to other parts, and the facility it affords for the comparison of instruments and the determination of their opera- tion and effect when construed in relation to each other ; but aside from this it is difficult to perceive any particular inducement for the adoption of the marginal system. The form of synopsis recommended by the writer, and of which the succeeding illustrations afford numerous examples, is exceed- ingly simple and unartificial. It consists merely of an arrange- ment not unlike that used in preparing the pleadings in a law suit ; - that is, a caption reciting the parties to the transaction, or the nature of the transaction itself in practicable cases, followed by a plain narration of whatever matter may be deemed essential. The 11 See precedent of New England sions in different parts of this work, abstract in appendix. an example, illustrating the English 18 Seaborne on Vendors, 4 et seq. methods will be found in the appen- As this matter receives frequent allu- dix. § 96] COMPILING THE ABSTEACT. 99 caption, for greater ease in perusing and comparing, is placed at the left hand side of the page and united with a bracket, or, if desired, may be written over and across the narration which fol- lows. All the recitals are written across the entire page and not otherwise distinguished from each other than by being thrown into paragi-aphs. In case of notes a slight indentation is desirable to more fully distinguish them from other matter, but with this exception all writing had better be made from the ruled margin of the sheet, ordinary legal cap being used for the purpose. This method has long been pursued by the abstract makers of the West, where it is conceded the most perfect and finished abstracts are now produced, and has met the general approbation of the legal profession. § 96. Fullness of Narration. From what has been said, it will appear that a full and complete narration of the material parts of every instrument, proceeding or act, shown in the abstract, is necessary to a complete and perfect examination. A thing of no seeming moment to the examiner, may, to the trained eye of counsel, be a circumstance of vital importance. "While the abstract is not intended to be a copy of what is shown it should yet be suffi- cient to impart all the essential information that might be obtained from a perusal of the original documents. It is not necessary, save in exceptional eases, that it should be a literal transcript of every point or matter deemed material or essential, for, on the con- trary, the majority of these matters will be more clearly and per- tinently presented by a brief and succinct statement that shall fully cover the particular point, divested of its redundancy and unnecessary verbiage. The object of the abstract is to economize time, and to enable the reader to survey the entire course of title, comparatively, at a glance. Hence, long and technical provisions should, whenever practicable, be digested so as to show their pith and substance, which, in many instances, may "be done without in any manner -impairing their significance. The faculty of con- densation should be cultivated by all who would aspire to excellence in the preparation of abstracts, for nothing more distinguishes the accomplished and expert examiner, and the work is always duly recognized and appreciated by counsel. These remarks, however, apply mainly to the general and not to the special incidents of instruments, for these latter, as a rule, can best be presented ia the language of the originals, and to avoid error or omission should be so shown. Thus, a general recital is far better presented as a terse and succinct statement, but pro- 100 ABSTRACTS OP TITLE. [§ 96 visions peculiar to the instrument must be fully stated or literally copied, for it must ever be borne in mind, that where one is charge- able with the notice of the record of an instrument, he is equally affected with notice of all material matters contained in such in- strument.^* Court proceedings are now more fully shown than formerly. It is not sufficient to simply abstract docket entries. In all cases the files should be consulted as well and frequently it will be neces- sary to make voluminous extracts or digests. The degree of -detail will depend much on the character of the proceeding but, in any event, the information furnished should be sufficiently explicit to enable counsel intelligently to pass upon the legal questions in- volved. §97. Instruments Shown for Reference. While the primary purpose of an abstract is to show only the course of title to a spec- ified tract, yet, in order more fully to illustrate such title, or to enable counsel to obtain better views with respect thereto, it is not an infrequent practice to exhibit, for the purpose of reference, instruments which connect with the title collaterally. The prac- tice is fully sanctioned by the usage of the best examiners and such collateral matters are often of high importance considered in connection with the title shown. Whenever it may be deemed de- sirable or expedient to show such instruments they should imme- diately follow the deeds they affect or explain and should be pre- ceded by the following note : The following deed is shown for reference only. It is well, also, when reference deeds are shown, to append a note in proper eases showing that the subsequent development of the title thereby conveyed is not contemplated, thus: Note. — Title of John Smith and his grantees not followed out. § 98. Examiner's Notes. The examples in the preceding para- graph are notes of explanation. It is the custom of many ex- aminers to freely intersperse through the examination their own comments and observations relative to matters therein stated. When properly inserted these notes are of much advantage in arriving at a proper estimate of the instruments shown, and in 13 Kerfoot v. Cronin, 105 111. 609. § 100] COMPILING THE ABSTRACT. ' 101 determining their character and the degree of importance to be attached to them. From his peculiar position, knowledge of the records, and control of indices and references, the examiner is fre- quently in possession of information, which, though not strictly essential to the abstract, and in a certain sense aliunde, is yet a valuable contribution and may obviate many perplexing questions that might otherwise arise on its perusal by counsel. This infor- mation should be appended in the shape of explanatory notes. They should be brief, concise, and confined strictly to a statement of facts. Queries, save in rare instances, opinions, and desultory suggestions, only serve to confuse and distract. When alluding to any particular instrument or proceeding, they should, when practicable, immediately follow the particular conveyance referred to, or should this be undesirable, may be placed at the end of the abstract, immediately before the certificate, by way of appendix. It is not a good plan to encumber the abstract with a profusion of notes, yet in no case where the matter stated is important, or necessary to a better understanding of what has preceded or may follow, should they be omitted, and when doubtful as to the pro- priety of their insertion, it is better to err on the side of safety, even at the cost of being prolix. §99. Irregrular Instruments. In compiling the abstract the irregular index should be as carefully consulted as the index of lands, and not only should this index show every independent in- strument of an irregular character, but also references to other instruments duly posted in the tract index, when by reason of anything therein contained or appended thereto, light may be shed upon examinations in which they do not properly appear. Thus, an affidavit of pedigree, domestic condition, etc., may be appended to a deed of specific lands which is duly posted in the tract index, but as this affidavit may have an equally important bearing upon the title to other lands, it must also be posted in the irregular index for easy reference. §100. Reference to Original Instniments and Private Memo- randa. An abstract is compiled, in the usual course, from the face of the record, and purports to show all essential facts thereby disclosed. If incorrect statements appear upon the record they must also appear upon the abstract. The examiner should not assume to correct the record. But, as will often be the case, if the examiner is satisfied that a misstatement has been made, or that the, recording officer has failed to properly transcribe the contents 102 ABSTRACTS OF TITLE. [§ 100 of a document left with him for record, it is the duty of the ex- aminer to apprise his client of such error, and that too upon the face of the abstract he has compiled. This will, in some instances, necessitate a reference to the original instrument and when the fact of an error lies within the examiner's knowledge this is a proper way of presenting it. The usual and better way to show a matter of this kind is by a note appended to the abstract of the erroneous document in this manner : Note. — The original document, now in our hands, which is re- corded as above in Book 512 of Records, page 197, shows the signature of said grantor as "Harriet Jones" and not "Hariet Janes.'' So, too, if the original entry books, made from the original docu- ments as they were filed, shows a difference in names or descrip- tion a reference thereto, in the same manner as the foregoing, is proper.^* § 101. Abbreviations. In preparing his notes and arranging his books, the examiner will find his labors greatly accelerated by the use of abbreviations. These may include not only the com- monly accepted initials for the points of the compass, different classes of conveyances, governmental divisions of land, etc., but all such abbreviated forms or contractions as to himself may have a definite meaning. In the abstract, however, everything should be written out in full, for it cannot be known into whose hands it may come, and arbitrary forms and abbreviations that to the examiner appear extremely lucid may cause much annoyance and incon- venience both to counsel and non-professional readers. On the other hand, the examiner should never attempt to supply the de- ficiencies of the conveyancer by writing out in the. abstract his abbreviations in the deed, but whenever such occur the better way is to make a literal transcription of the abbreviated words or pas- sages, and certify same with quotation marks thus : ' ' Sec. 14, T. 39, Range 13 E." The question of interpretation will then rest where it rightfully belongs — with counsel who is to pass on the title. A deed is not invalid because of the description of the lands being in figures or well understood abbreviations,^* but abstracts 14 For a precedent of a note of this IB Harrington v. Pish, 10 Mich. 415 ; kind see § 201. Moseley v. Mastin, 37 Ala. 216. § 103] COMPILING THE ABSTRACT. 103 which are unintelligible without the aid of some proof to explain the meaning of abbreviations and initials used in them, when per- mitted to be used as evidence, are insufficient in themselves to establish title.^^ §102. Letter Press Copies. No abstract or examination should be permitted to leave the maker's hands until a duplicate letter press copy, or its equivalent, has first been obtained. ^The examiner should always have in his own possession the verifica- tion of his work as a matter of self -protection, while in case the volume of business passing through the offices of registration is such as to preclude making full minutes in the first instance, the copies thus obtained will supply the deficiency, and be available for future examinations of the same property, without the labor of again referring to the records. This may be accomplished by noting on the tract index opposite the reference of the instrument in question the volume and page of the copy book on which the full abstract is preserved. § 103. Concluding Certificate. The result of the examiner 's labors should be summed up in conclusion, by a brief recapitula- tory and explanatory certificate, embodying the essential features of the search. Its extent is optional with the examiner, but it should, to give stability to the abstract, cover his searches in the offices of registration, the courts, and depositories of records rela- tive to taxation, these three sources of information furnishing nearly all the evidence required in passing on the sufficiency of the title. It should be certain in its statements, leaving nothing to im- plication, and contain no more than is developed by actual investi- gation. If the examination is made from the records it should so state, enumerating the different classes examined, or describing the offices or depositories from which the information was ob- tained, but where it is made from indices, kept by the examiner, it is usual to certify from such indices,''^ which is a much safer plan than to certify from the records. It should be signed by the examiner and dated, such date being usually the date of the ex- amination. The annexed form of certificate will cover the points investigated in an ordinary search : 16 Weeks v. Dowing, 30 Mieh. 4. eific order, stating his desires. An 17 As a further precaution the client example of such an order will be is frequently required to make a spe- found in the appendix. 104 ABSTRACTS OF TITLE. [§ 103 We have examiried our Indexes to records in Cook county, Illi- nois, and find: No conveyances of the land described in the caption hereto, executed by any of the parties named herein as grantor or grantee, shown thereby to have been recorded in the Recorder's office of said Cook county, Illinois, since January 25, 1875, and prior to this date, and no proceedings affecting the title to said premises had in any of the courts of record of said comity, except as shown on the ten (10) preceding sheets}^ No judgments rendered in any court of record in said Cook county, Illinois, against John M. Smith since October 25, 1910,^^ and prior to March 2, 1915,^^ nor against William Thompson since October 25, 1910, and prior to this date, which are a lien on said premises [or which we consider liens on said premises]. Note.— iVo examination made for judgments against John Smith, nor against John Smith with /tniddle initial other than "M." No taxes, or tax sales, or forfeitures of said premises remaining unredeemed or uncanceled of record (except as shown). Williams & Jackson, Examinsrs. Chicago, October 25, 1920. If the examination commences with the assumption of title in a given person, the certificate should, for the better protection of the examiner, specify such person by name and the statement of conveyances might read something like the following: No conveyances of the land described in the caption hereto, executed by John M. Smith, shown thereby to have been recorded in the recorder's office of said Cook county, Illinois, since Jan. 25, 18 Although the examiner may only in a majority of the States the period certify that he ^nds no conveyances, is ten years, which corresponds to the yet this is equivalent to a statement illustration above given. that none exists. McCoraher v. Com- 20 This would be the date when John monwealth, 5 Watts & S. (Pa.) 21. M. Smith disposed of the title, and 19 This date has reference only to hence no examination would be made the time from which a personal judg- concerning tiim after that date. Wil- ment is a lien on real estate and not to liam Thompson, though only holding the commencement of the examination. title a little over five years, must yet In Illinois the lien only exists for be certified, as against judgments, for seven years, hence, with reference to a period equal to the statutory limita- the date of the certificate, October 25, tion, which, in the example, is ten 1913, would have been a proper date years. from which to certify judgments, but § 103] COMPILING THE ABSTEACT. 105 1875,^^ amd none hy those who derived title through sadd Smith, named in the foregoing examination as grantor or grantee, etc. "Where instruments have been shown for reference only, or where under the general caption deeds are exhibited of parcels which do not constitute any part of the lands in question, no neces- sity exists for following the title of such parcels or noting its sub- sequent devolution; as where a Railroad right of way intersects a division or tract of land. It is advisable, however, to call attention to this fact, either by a note following the abstract of such deeds or by a clause in the final certificate, and such mention, in either ease, may read somewhat as follows : No examination for conveyances by or judgments against the Illinois and Wisconsin RaMroad Company or its gra/ntees. , Where, in a continuation, no conveyances are shown, there hav- ing been no change of title since the last examination, the state- ment as to conveyances may simply recite this fact, or, if desired, and this is the better way, a special certificate may be made with respect tV) the record owner of the land, as shown by the last ex- amination, and the holder of such incumbrances as may appear thereon; thus: No conveyances of the land described in the caption hereto exe- cuted hy John Brotvn^^ or hy James Smith,^^ mortgagee, shown thereby, etc. Where two or more parcels form the subject of the examination and the caption, in technical parlance, is a "double header," if the examination purports to be from different dates as to each par- cel the fact must find appropriate mention in the certificate, as per example. No conveyances of the land first described in the caption hereto, executed by any of the parties named herein as grantor or gra/ntee, shown thereby to have been recorded, etc., since June 10, 1868, except as noted. No conveyances of the land secondly described in the caption hereto, executed, etc., since March 1, 18p'0, except as noted. 21 The date of the assumption of 23 The encumbrancer as shown by title and commencement of the search. the last examiuation. 22 The record owner as shown by the last examination. 106 ABSTRACTS OF TITLE. [§ 103 In contiuuatious, when no tax sales have occurred during the l^eriod covered by the search, say: No tax sales had since Dec. W, 1919.^^ Where a sale for taxes is in progress at the time the examination is made the foregoing should be continued by adding : and prior to A%i,gust 16, 1920?^ This may be followed by a brief explanatory note. Thus : Note. — The sale for the State, County and City taxes for 1919, and prior years, commeivced August 16, 1920, hut we do not certify thereto. Of late years it has become customary to certify with respect to special assessments and when the laud in question is located in a eily this is an important matter. When certifying special assess- ments at any time, say: No confirmed special assessments remaining unpaid, which we consider liens on said premises. (Except as shown.) When certifying special assessments since the date of the last examination, say : No special assessments confirmed since January 13, 1918, re- mmning unpaid, which we consider liens on said premises. (Ex- cept as shown.) In the foregoing examples the abstracts are supposed to have been compiled from the records or the examiner's indices, and are what are termed "original examinations." Not infrequently, how- ever, the examiner is called upon to prepare compilations from former examinations, being, in effect, digests of the title to par- ticular tracts shown in such original examination in a general way with other lands. While the practice is not recommended there will yet be many cases in which it may be profitably followed, and, when this is done, the concluding certificate should specifically 24 The date of the last cxamina- 25 The date of the commencement tion. of the sale. § 103] COMPILING THE ABSTRACT. 107 show the course pursued and verify the correctness of the compila- tion. Thus : The foregoing Examination of Title to the land descriied in the caption hereto, is a compilation from the following several examvina- tions, including the land in question, heretofore made hy us, viz.: To the West half of the South East quarter of Section Ten, Town Thirty-nine, North, Range Fifteen, East of the Third Prin- cipal Meridian, dated April 22, 1869. To the same land dated March 1, ISpO. And we do certify that same is a true and correct compilation from said several examinations, including all conveyances of the land described in the caption hereto, made hy the parties grantors or grantees namved therein and sJiown thereby to have been re- corded in the Recorder's office of Cook cotmty, Illinois, prior to the dates of record of the deeds by them respectively, np to aiid including March 10, 1889.^^ In like manner the examiner may be called upon to fill a gap in the history of the title. "While the caption should show this fact, in the manner heretofore indicated, the certificate should also be made with special reference to it and the recitals of convey- ances, judgments, etc., should all be qualified by the statement, / And prior to June 10, 1870, or words of similar import which clearly mark the time of the termination of the search. The certificate should, of course, bear date as of the actual time it was made. Frequently, where the abstract covers a large quantity of land, duplicates are subsequently desired, and the examiner is requested to make copies. To these copies a short verification should be appended. The following will suffice : The foregoing ten (10) pages, this included, is a true copy of the original Examination of Title. This should be signed by the examiner. At present, copies cer- tified by a notary public, or any person other than the examiner, are not considered merchantable. 26 This is the date to be covered by the search and from which a. continu- ation would be made. CHAPTER VIII. INCEPTION OF TITLE. 104. Preliminary stages of title. §117. 105. Inceptive measures under the U. S. land laws. §118. 106. Disposal of the public domain. §119. 107, Public land sales. §120. 108. Private entry of lands. §121. 109. Nature of title conferred by §122. entry. §123. 110. What lands subject to entry. §124. 111. Pre-emption entries. §125. 112. Nature of pre-emption rights. §126. 113. Conveyances before entry. § 126a. 114. Oraduation entries. §127. 115. Donation entries. §128. 116. Homestead entries. Eights acquired under home- stead acts. Desert land entries. Timber culture entries. Location by military warrant. Land- scrip. Swamp land grants. School lands. Internal improvement grants. Land grants to railroads. Public highways. Private land claims. ' Who may acquire title. Inceptive measures in the ab- stract. § 104. Preliminary Stages of Title. All of the lands in the National Territories, not approjJriated by competent authority before they were acquired, are, in the first instance, the exclusive property of the United States, to be disposed of to such persons, at such times, in such modes, and by such titles, as the Govern- ment may deem most advantageous to the public. This right has been uniformly reserved by solemn compact upon the admission of new States, and has always been recognized and scrupulously respected by the States within which large portions of the public lands have been comprised, and within which some of these lands are still remaining. The system adopted for the disposition of the public lands em- braces the interests of all the States, and proposes the equal par- ticipation therein of all the people of all the States. The system, is, therefore, peculiarly and exclusively the exercise of a federal power, and the mode of its accomplishment, as well as the evidences or muniments of title which it bestows, are all the work of federal functionaries. Neither State nor Territory can, in any manner, interfere with the primary disposal of the lands.^ 1 Irvine v. Marshall, 61 V. S. (20 How.) 558. 108 § 105] INCEPTION OF TITLE. 109 Under the land system of the United States, there are a number of preliminary or inceptive stages of title before its final divesture from the Government and consummation in the purchaser. They are created by the provisions of the various acts of Congress in furtherance of the development of the country, and their recital forms, or should form, the initial statements of every abstract, whenever the examination purports to show a connected chain of title from' its source, the general Government. Where title, as in the Bast, is derived directly from the State as the original pro- prietor, these stages, of course, do not appear, nor are they present where title is deduced from ante-revolutionary governments. Titles derived from foreign powers prior to the acquisition of the soil by the United States are respected and protected, but should be con- firmed, when inchoate, by special act or in conformity to general la.ws on that subject,'' the title in such cases dating from the con- firmation, though relating back to the time of the cession of the Territory to the Government, or to the original grant.' §105. Inceptive Measures Under the U. S. Land Laws. The public lands are sold only by legal divisions, or parcels, made in conformity with the government system of surveys, and title is acquired by purchase at public sale; by ordinary "private entry;" and by the various other methods provided in the special enact- ments of Congress known as the pre-emption acts, homestead acts, etc. These laws and regulations for the disposal of the public do- main apply only to individuals who take direct from the United States. Congress has also at different times by special legislation granted to the States, or certain of them, a portion of the public lands to aid in the construction of great internal improvements; to endow schools and encourage education; and for other specific purposes. These various measures, for the most part, are inceptive and initiatory. Though creating vested interests, and granting equi- table rights,* the legal title still remains in the original grantor,* z United States v. King, 3 How. firmations have been extended to all 773; McMioken v. United States, 97 claims founded on titles in form, U. S. (7 Otto) 204. orders of surTey, and even to lands to 3 The policy of the United States, in which no written title had been re- the adjustment of such titles has corded, where the claimants had made been one of unexampled liberality, actual settlements before the change reserving to claimants the lands to of sovereignty. which they asserted titles derived from 1 Stark v. Starrs, 6 Wall. (U. S.) the lawful authorities. of governments 402. which held sovereignty over the terri- 5 Carman v. Johnson, 20 Mo. 108; tory prior to its acquisition, and eon- Hayward v. Ormsbee, 11 Wis. 3; WU- 110 ABSTRACTS OP TITLE. [§ 105 to pass and become absolute in the grantee, only on the perform- ance of prescribed conditions or in due course of law. A brief review of the preliminary steps to acquire title will form the sub- ject of the succeeding paragraphs. § 106. Disposal of the Public Lands. The public lands of the United States are uniformly brought into market in pursuance of a system which originated in the year 1796 ^ and was perfected about the year 1820. They are divided into two classes, designated respectively, the minimum at $1.25 per acre, and the double mini- mum at $2.50 per acre, and may be purchased in tracts of from 40 to 640 acres, or in larger bodies if the same can be found vacant. In cases of public sale or private entry the law requires the price to be paid in cash at the time of purchase.' For a period of twenty years, beginning with the commencement of the last century, the lands were sold on credit, at not less than $2.00 per acre ; but the credit system not working satisfactorily, in 1820 it was abandoned and the price reduced to $1.25 per acre. The $2.50 per acre lands are such as lie within the limits of railroad or internal improve- ment grants. Exceptions to these rules are made under the pre- emption and homestead laws, which will be noticed hereafter. The lands are first required to be surveyed, then advertised and ex- posed for sale at public auction, after which, whatever remains is subject to private entry, location, etc., at fixed prices.* cox V. Jackson, 13 Pet. (U. S.) 498. price, above a fixed minimum, as the 6 The first treaty extinguishing the lands would bring, and after this to Indian title was not effected until purchase by private entry, on a credit 1795, but not a year had elapsed from at a minimum in excess of the lowest the definitive treaty of peace in 1783 price now admissible by law. In the before the Congress of the Conf edera- progress of events the national legisla- tion took the initiative for establish- ture took cognizance of actual settlers, ing a system for the disposal of the giving them precedence and prefer- then existing western lands, and on ence in the purchase of the public May 20, 1785, the requisite ordinance lands, and, relieving them of the neees- for that purpose was passed, by which sity of competing at pubUe auction the Board of Treasury was authorized with ordinary purchasers, pefmitted to dispose of the surveyed lands in the them, on very liberal terms and at western territory, commencing sales the lowest price, to secure titles to at New York or Philadelphia, with actual settlements. This policy con- power to adjourn to any part of the tinued restrospective until after the United States. operation of the pre-emption law of 7 See instructions, Sec'y Interior, 1830, and its supplements, and up to Sept. 10, 1849 ; March 10, 1869. the passage of the permanent prospec- 8 The first method of disposal was tive pre-emption system by the act of by offering at public sale for such Sept. 4, 1841. Congress has also dealt § 108] INCEPTION OF TITLE. , 111 § 107. Public Land Sales. The public sales arc held in pur- suance of a proclamation by the President,® or of a public notice given in accordance with directions from the General Land Office.^" At this sale the lands are offered at a minimum price, and cannot be sold for less, but may be sold for as much more as any one will give. On payment of the price for which the land is sold, the Receiver of the local land office issues his receipt as in other cases and the sale is noted on the tract books of the Register. The law limits the duration of the sale to two weeks, and in case of a shorter period private entries are not permitted until the expiration of that term. Comparatively, only a small portion of the public lands are disposed of by this method. § 108. Private Entry of Lands. The term ' ' entry, ' ' as applied to appropriations of public land, is said to have been borrowed from the State of Virginia where it has been used in that sense from a very remote period. It has now a fixed and definite signifi- cation in the legal nomenclature of the country, and means that act by which an individual acquires an inceptive right to a por- . tion of the unappropriated soil of the country by filing his applica- tion for same in the office of the designated land agents of the Government, and is confined to the right of purchase at private sale.^^ The entry is made by presenting to the Register of the district land office a written application describing the tract desired, to which the Register' attaches his certificate, setting forth the fact of such tract being at the time subject to private entry and specifying the price per acre. The application is then taken to the Receiver with lands which had been in the mar- 9 In the early periods of the history ket ten years or longer by reducing of the country. Congress, in some these to actual settlers at low rates, cases, fixed by law the times at which but this benign policy having led to public sales in particular land dis- abuse and speculation. Congress re- tricts should be held, and in others scinded the law, yet not without in- directed the sales to commence at such dicating a continued interest in the- times as the President should fix by actual settler in passing the homestead proclamation. But by the act of April act of May 20, 1862, by which any 24, 1820, regulating land sales gener- citizen can secure a farm compara- ally, it became the duty of the Presi- tively without cost. dent to proclaim and offer for sale Under present laws publia lands all the public lands as they might be containing mineral deposits, either of surveyed and prepared for market. coal or precious metals, are reserved 10 Rev. Stat. TJ. S. § 2353 et seq. from entry as agricultural lands and 11 Chatard v. Pope, 12 Wheat. (TJ. sold at special prices varying from S.) 586. $5.00 to $20.00 per acre. 112 ABSTRACTS OF TITLE. [§ 108 to whom payment is made, and who in return, gives duplicate re- ceipts, one of which is retained by the applicant, to be surrendered on receiving his patent, and the other, together with the applica- tion, is delivered to the Register, who, after placing the applica- tion on file, issues his certificate of purchase of the land. The application, accompanied by the Register's corresponding cer- tificate of purchase, is then forwarded to the General Land Office for official action.^^ Patents do not issue in the usual course of business in the - Gen- eral Land Office until several years after the entry has been made, though conveyances with warranty are freely made, and the prop- erty frequently passes through many hands on the strength of the inchoate title conferred by entry and payment. The recital of this entry forms the first statement of the abstract of all lands ac- quired in this manner, and should be followed, whenever prac- ticable, with the Receiver's duplicate certificate of purchase and payment. §109. Nature of Title Conferred by Entry. The practice of dating the legal title from the date of the entry is followed in many of the States,^* yet nothing passes a perfect title to public lands, with one exception, but a patent.^* The exception being where Congress, by special act, conveys land in words of present grant.^" Congress has the sole power to make and authorize appropriations of the public lands ^® and to declare the effect and dignity of titles emanating from the United States,^'' and the whole legislation of the federal government in relation thereto declares the patent the superior and conclusive evidence of legal title; until it issues the fee remains in the government.^* The entry can only come in aid of the legal title, and is no evidence of such standing alone, when opposed to a patent for the same land.^' 18 1 Lester's Land Laws, 311; Eev. 16 United States v. Pitzgerald, 15 Stat. U. S., §2245 et seq.; and see Pet. 407; Parrington v. "Wilson, 29 Cir. Gen. Land Office, March 1, 1884. Wis. 38.3. 13 O'Brien v. Perry, 1 Black. 132; ITBa^ell v. Broderick, 13 Pet. Tidd V. Bines, 26 Minn. 201; Bui- 436. lock V. Wilson, 5 Port. (Ala.) 338; 18 Peak v. Wendel, 5 Wheat. 293; Burdick v. Briggs, 11 Wis. 126. Hooper v. Seheimer, 23 How. 235; 14 3 Opinions Att'y Geii. 91; Car- Hayward v. Ormsbee, 11 Wis. 3; man v. Johnson, 20 Mo. 108. Bronson v. Kukuk, 3 Dill. 490. 15 3 Opinions Att 'y Gen. 350 ; 9 do. 19 Baird v. Wolf, 4 McLean, 549 ; 346; 11 do. 47; Grignon's Lessee v. Peak v. Wendel, 5 Wheat. 293. Astor, 2 Howard, .319; Challefoux v. Diicharme, 4 Wis. 554. § 109] INCEPTION OF TITLE. 113 But a party who has complied with all the terms and conditions which entitle him to a patent for a particular tract acquires a vested interest therein, and is to be regarded as the equitable owner thereof, the government simply retaining the formal legal title in trust for the purchaser until the patent issues.^" The right to a patent once vested is equivalent, as respects the government, to a patent issued; and when the patent is issued it relates, so far as may be necessary to cut off intervening claimants, to the inception of the right of the patentee.^! The interest thus ac- quired is a recognized property which courts will respect and pro- tect,^^ and has been held to be a valid subject of sale or transfer.^' In such case the assignment of the certificate of entry passes the equitable title to the land,^* or, if intended as collateral security creates an equitable lien.^* On filing the assignment of the cer- tificate in the General Land OfSce, patent will issue to the assignee with the same effect as to the original purchaser,^® or if issued to the original purchaser he will take only as trustee for the true owner.^'' Assignments are not frequently met with on the records. As a rule, the early proprietors disposed of their interests under the entry by deed of bargain and sale, and usually with covenants of seizin and warranty. The receiver's receipt was usually placed on record as the foundation of title, while the patent, in the muta- tions through which the- property afterward passed, was often overlooked and frequently forgotten.^* The effect of location or entry in due form, is to segregate the land from the public domain and subject it to private ovniership, with all the incidents and liabilities thereof. While such location is in force no other can lawfully be made ; ^® the public faith has then become pledged to the locator and any subsequent grant of the same land would be void, unless the first location or entry is 20 Worth V. Branson, 98 U. S. (8 26 Instructions Sec'y Interior; 1 Otto) 118; "Waters v. Bush, 42 Iowa, Lester's L. L. 351; Clark v. Hall, 19 255. Mich'. 356. 21 Stark V. Starrs, 6 Wall. 402 ; Tay- 27 Stark v. Mather, 1 Walker lor V. Brown, 5 Cranch, 234; Morrill (Miss.), 181; Magruder v. Esmay, 35 V. Chapman, 35 Cal. 88; Astrom v. Ohio St. 221; Cunningham v. Ashley, Hammond, 3 McLean, 107. 14 How. 377. 22 Gains v. Hale, 26 Ark. 168; Mc- 28 Hundreds of thousands of un- Lane v. Dovee, 35 Wis. 27. called for patents are yet remaining 1 23 Carrall v. Safford, 3 How. 460 ; in the files of the General and local Hutchings v. Low, 15 Wall. 88. land oflS.ces. Gen. Land OfEee Beport, 24Sillyman v. King, 36 Iowa, 207; 1875. Meyers v. Croft, 13 Wall. 291; Bur- 29 Simmons v. Wagner, 101 U. S. dick T. Wentworfh, 42 Iowa, 440. 251. 2B Wallace v. Wilson, 30 Mo. 335. Warvelle Abstracts — 8 114 ABSTRACTS OF TITLE. [§ 109 set aside.^' It is within the power of the Commissioner of the General Land Office, however, to cancel entries of public lands at any time before patent issues, on proof that the entryman has failed to comply with the law.^^ § 110. What Land Subject to Entry. It is a fundamental principle, underlying the land system of the country, that private entries of the public lands are never permitted unless Congress by special act order otherwise, until after such lands have been exposed at public auction at the price for which they are after- ward subject to entry.** Where lands had been surveyed but not exposed at public sale they might formerly be obtained under the provisions of the pre-emption law, in which manner large portions of the valuable lands in the States admitted since 1841, have been taken up.*' Lands known as "mineral," including deposits of the precious metals, coal, and salines, are not subject to ordinary pri- vate entry and are disposed of in accordance with special acts,** the general procedure, however, being the same. Nor can lands be entered which have been reserved for any purpose, or other- wise withdrawn from market.*^ § 111. Pre-emption Entries. As has been shown, in the earlier stages of our land system, no right or interest could be secured by the individual in any public land until it had been surveyed into legal divisions ; nor after this had been done was it subject to sale until by a proclamation of the president, it was brought into mar- ket. This proclamation always fixed a time and place when the lands within a given district were offered for sale at public auc- tion; and until all of them were sold, which could be sold in this manner, at prices above the minimum fixed by law, no one could make a private entry of a particular tract or establish a claim to it. The scenes of violence, fraud and oppression, and the com- binations which attended these sales, as well as the wrongs per- petrated under them, led to the law of pre-emption. It often occurred that emigration, in advance of the readiness of the pub- lic lands for these sales, had caused hundreds and thousands to settle on them ; and when they came to be sold at public auction, 30 Worth V. Branson, 8 Otto, 118 ; 33 Meyers v. Croft, 13 Wall. 291. , Lytle V. Arkansas, 9 How. 314; U. 34 Act, July 26th, 1866. S. V. Fitzgerald, 15 Pet. 401. 35 Hot Spring Cases, 92 U. S. (2 31 Jones V. Meyers, 2 Idaho, 793. Otto) 698; Bellows v. Todd, 39 Iowa, 32Eldred v. Sexton, 19 Wall. 189; 209. do. 30 Wis. 189. See also 4 Opinions Att'y Gen. 167. §111] INCIIPTION OF TITLE. 115 their value, enhanced by the houses, fences and other improve- ments of the settler, placed them beyond his reach, and they fell into the hands of heartless speculators. To remedy this state of things the pre-emption system was established.*® ' It was subsequently found, however, that the system was sub- ject to much abuse and that many pre-emption filings, as well as entries, were made, or caused to be made, for speculative purposes only. In view of this fact, and of the further fact that all of the advantages of the system were afterward embraced in the home- stead laws, its repeal was frequently urged by the General Land Office. Finally, it became manifest that the pre-emption laws had outlived their usefulness and so, after an existence of nearly a century, on March 3, 1891, the system was formally abolished. A "pre-emption claim" conferred upon the settler the exclusive right to purchase, at a minimum price, the public land upon which he had settled in conformity to the acts of Congress on that sub- ject.*'' This policy of securing to individuals a preference right to purchase, had its origin at about the commencement of the last century, and at first was confined to lands which had been sur- veyed, but gradually this was changed until in 1862,** pre-emptions were allowed, under proper restrictions, on unsurveyed lands as well. The laws on this subject are numerous, beginning as early as May 10, 1800, which allowed pre-emptions in the country north- west of the Ohio river, and were at first restricted to particular classes and localities, until the act of September 4, 1841,*' and supplemental act of March 3, 1853,** which superseded all previous laws and became the general pre-emption system.*^ Under this law the settler, possessing the prescribed qualifications, who had entered upon public land, making improvements and bringing the same under cultivation, and otherwise conforming to specified re- quirements, acquired a prior and exclusive right to purchase, and was protected in the enjoyment of his claim from intrusion or trespass by others.*^ To fix these rights, he was required, where 36 See, Atherton v. Fowler, 6 Otto to public sale. The enactments grant- (TJ. S.) 513. ing pre-emption rights, before this 37 DUlingham v. Fisher, 5 Wis. 475. time, were mainly in the nature of re- 38 12 Stat, at Large, 418. lief laws, by which trespasses were 30 5 Stat, at Large, 457. waived, and a preference was given 4010 Stat, at Large, 244. to those who were occupying public 41 Prior to the year 1841, the legis- lands at the dates of the several laws. lation of Congress had not encour- 42 Coleman v. Allen, 5 Mo. App. 127, aged settlements upon the public and see, Cir. Gen. Land Office, March lands before they had been exposed 1, 1884. 116 ABSTRACTS OF TITLE. [§ 111 the land at the time of settlement was subject to private entry, to file with the Eegister a declaratory statement, describing the land settled upon, and reciting his intention to claim the same under the provisions of the pre-emption act, and within twelve months thereafter to make proof of settlement and payment; failing in these particulars the land so settled or improved would be subject to the entry of any other person. By the act of May 30, 1862,*' the pre-emption claimant of unsurveyed lands was required to file his declaratory statement within three months from the date of the receipt at the district land office of the approved plat of the township embracing such pre-emption settlement.** § 112. Nature of Pre-emption Rights. The right of pre-emp- tion attached only to such public lands as were subject to the operation of the general land system of the country, and not to those which had been taken out of the class of public lands and appropriated to specific objects, or reserved for particular pur- poses.** No title, either legal or equitable, was conferred by the pre-emption laws. They gave merely a naked right to purchase and acquire title within a specified time, on compliance with cer- tain conditions.*^ The settler acquired, and could acquire, no vested interest in the land he occupied by virtue simply of settle- ment ; *' the land continued subject to the absolute disposing power of Congress until all the necessary legal steps to perfect an entry thereof had been taken.** Before this the settler had nothing but a contingent, personal privilege to become, without competition, the first purchaser of the property, a privilege which he might never exercise, or which he might waive or abandon. The interest acquired by a pre-emption right is not an estate within any definition known to the common law.*® It could not be sold, so as to vest the purchaser with any rights in the land, and 43 12 Stat, at Large, 418. 49 Delaunay v. Burnett, 4 Gilm. 44Megerle v. Ashe, 47 Cal. 632. (111.) 484. 45 3 Opinions Att 'j Gen. 456. 60 Moore v. Jordan, 14 La. Ann. 46 Woodward v, McReynolds, 2 Pin. 414; Quinn v. Kenyon, 38 Cal. 499; (Wis.) 268; Brown v. Throckmorton, Morgan v. Curteniu^, 4 McLean, 366; 11 111. 529; Hemphill v. Davies, 38 Brewster v. Madden, 15 Kan. 249; but Cal. 577. see Delaunay v. Burnett, 4 GUm. (111.) 47 Opinions Att'y Gen. 56; Burgess 454, Phelps v. Smith, 15 111. 572, V. Gray, 16 How. 48. where the interest is regarded as prop- 48Prisbie v. Whitney, 9 Wall. 187; erty which may pass by deed, the pur- Busch V. Donohue, 31 Mich. 482; chaser being regarded as the "legal Yosemite VaUey Case, 15 Wall. 77 ; E. representative ' ' of the original claim- It. Co. V. Tevis, 41 Cal. 489; Witten- ant; also, Bowers v. Kuscher, 14 Iowa, brock V. Wheadon, 128 Cal. 150. 301. § 113] INCEPTION OF TITLE. 117 such a sale would extinguish the pre-emptor 's own right. ^^ Neither could it be conveyed by devise.^^ But should the pre-emptor die without establishing his claim within the period limited by law, his rights thus initiated were still preserved, and the title might be perfected by his personal representatives or his heirs, provided the entry was made during the period in which the pre-emptor would have been entitled to do so, had he lived, and patent would be issued accordingly.^^ In such event, however, while resort might be had to the laws of the State under which the descent was cast for the purpose of deter- mining who were the heirs, yet the heirs did not take the land by inheritance from their ancestor but by direct conveyance from the United States, and the portion taken by each heir is determined, not by the law of inheritance but by the terms of the conveyance.^* §113. Conveyances before Entry. The benefits of the pre- emption acts, being intended only for the actual settler, were personal in their application, the 12th section of the act of 1841 s* providing that "all assignments and transfers of the right hereby secured prior to the issuing of the patent shall be null and void ; ' ' and to prevent speculators from acquiring the land, the applicant, before being allowed to enter same, was required to swear that he has not contracted it away, nor settled to sell on speculation, and any grant or conveyance made by him before entry is declared void, with an exception in favor of bona fide purchasers for a valuable consideration. This restriction has been held, however, to extend only to the riffht to pre-emption; that is, the preference right to purchase at a minimum price, no matter what the value might be when the time limited for perfecting the pre-emption had expired,** leaving the pre-emptor free to sell or otherwise dispose of the land after the entry had been made.** Since the passage of the act of 1841, in those parts of the United States where that act applied, the right to sell has been freely exercised after the claim had been proved up, the land paid for 51 Kogers v. Clemmans, 26 Kan. but it is estimated that there has been 522. disposed of under the pre-emption 62Eev. Stat. TJ. S. §2269. It is system, sinoe its inauguration, about impossible to state the number of en- 200,000,000 acres. tries made under the pre-emption laws, 53 Wittenbrock v. Wheadon, 128 Cal. because the system of the General 150. Land OflS.ce carries them into ' ' cash 64 5 Stat, at Large, 457. entries" and they are therefore em- 55 Meyers v. Croft, 13 Wall. 291. braced in the annual cash receipts 56 Bobbins v. Bunn, 54 ID. 48. from sale of land under various laws, 118 ABSTRACTS OP TITLE. [§ 113 and the certificate of entry received; the pre-emptor then standing in the same relation to the government as other purchasers,*'' and though the patent may only issue to the purchaser, it wiU inure to the benefit of his grantee.** By proof and payment the equities of the claimant are matured and complete, and while the right of government to dispose of its own property is undisputed, as well to prescribe rules for the disposition of same, yet, subject to these weU-known principles, parties rightfully in possession of the soil may make valid contracts, even concerning the title, predicated upon the hypothesis that they may thereafter lawfully acquire such title, except in cases where Congress has imposed positive restrictions.*' § 114. Graduation Entries. In order to further facilitate settlement and encourage the sale of public lands to actual settlers and cultivators. Congress, by the act of August 4, 1854,^" provided for a graduated scale of prices, for lands which had been in the market for ten years and upward, ranging from 12^ cents to $1.00 per acre. This act remained in force until June 2, 1862, when it was repealed.*^ In its essential features it closely re- sembled the pre-emption law, to which it was in fact an aid. The lands could also be purchased for cash at the graduated price. Like the pre-emption law, the rights conferred by this act were personal, and because of actual settlement and cultivation, made S7 Cady V. Eighmey, 54 Iowa, 615. act passed Marcli 3, 1857, the patents 68 Camp V. Smith, 2 Minn. 155. were delivered, on application there- 69 Lamb v. Davenport, 18 Wall. 307. for, without the proof being required In California it has been held that a in all such cases, where the entry was mortgage made before proof and pay- allowed prior to the passage of that ment, might be enforced after entry act, and where it was not found to be had been perfected: Clark v. Baker, fraudulently or evasively made. Sub- 14 Cal. 612; Christy v. Dana, 34 Cal. sequent to the passage of that act, 548. Sfee also Beasoner v. Markley, and prior to June 2, 1862, when the 25 Kan. 635. graduation law was repealed, a large 60 10 Stat, at Large, 574. number of entries were allowed under 61 Thousands of entries were made that law, and in the course of busi- under the provisions of this act, the ness there came to be many patents quantity of land sold, as shown by for entries so allowed, the delivery of the reports of the General Land Office, which was suspended for the reason aggregating nearly 26,000,000 acres. that the requisite proof was not forth- It is still possible that iii some few coming. To this class of cases the cases patents have not been issued confirmatory principles of the act of on the entries made, as there were March 3, 1857, were made applicable many cases in which the required by the act of Feb. 17, 1873, and the proof of settlement and cultivation issuing of patents has since continued, was wanting, but under a confirmatory § 115] INCEPTION OP TITLE. 119 or contemplated. Assignments of the rights acquired under the acts were expressly prohibited and wholly disregarded, and the patents in every instance issued to the original purchaser. The method of acquiring title under graduation acts was sub- stantially the same as under the pre-emption laws, with only a slight difference in details. It is not customary, nor is it neces- sary, to incorporate in the abstract the inceptive details prior to entry. The matter is optional with the examiner, but the entry is the first material stage. §115. Donation Entries. In a few localities initiations of title wiU be found under what are known as the ' ' Donation Acts. ' ' These acts were a series of laws designed to induce settlements on the public lands in dangerous or distant parts of the nation. They were all local in character as well as temporary in thfeir applica- tion, and all of them have long since expired by their own limita- tion. In their practical features they resembled the present home- stead law, of which, indeed, they were the precursors. The first of these laws, passed in 1842,®^ was had in view of the Indian diffi- culties in Florida, and provided for the donation of one quarter section of land to any person, able to bear arms, who should make an actual settlement within a certain portion of the peninsula.®' In 1850,®* a still more liberal act was passed with special refer- ence to the Territory of Oregon, and when in 1853 the Territorial government of Washington Territory was established, its terms were extended over that Territory. This act donated from a quarter to an entire section, a premium being placed on matri- mony by a double allowance to a married man, and by permitting ' the wife to retain the ownership of half the land in her own right.®* Residence on and cultivation of the land for four consecutive years was necessay to insure a patent from the government. The act expired Dec. 1, 1855. In 1854 ®® a similar act was passed with special reference to the Territory of New Mexico, except that the grant was restricted in quantity to 160 acres, and available only by males then residing in the Territory or who should remove there prior to 1858.®'' 62 5 Stat, at Large, 502. tificates were issued under this law 63 This law, which was variously covering about 3,000,000 acres, amended, resulted in the patenting of 66 10 Stat, at Large, 308. 1,317 claims. 67 Leas than 200 certificates have 64 9 Stat, at Large, 496. been issued under this law. 65 Upwards of 8,000 donation cer- 120 ABSTRACTS OP TITLE. [§ 116 §116. Homestead Entries. Until 1862, Congress had passed no general law offering the public domain in a limited quantity to any person who would cultivate and make a permanent home thereon. Pre-emption laws, securing the right to enter land by purchase at a minimum price fixed per acre had been enacted, and donation laws, applicable to particular States had been passed, but the liberal policy of offering homesteads had not been ex- tended to all persons. The act of May 20th of that year «» is the first homestead law of the government, "and it would be difScult perhaps," says Dillon, J., "to point to any enactment of the Fed- eral Congress, more wise in conception, just in policy, and bene- ficial in results than this." «» By this act a quantity of land, not exceeding 160 acres, is given to any person, being the head of a family and possessing the requisite qualifications, on condition of settlement, cultivation and continuous occupation as a home by the settler for a period of five years.™ During this period he is prevented from alienating any part of it, or from making any actual change of residence, or from abandoning the land for more than six months at a time. A full compliance with all tbe pro- visions of the act, entitles him to a patent at the expiration of five years. The law requires the land "to be located in one body, in con- formity to the legal subdivisions of the public lands, and after the same shall have been surveyed." The applicant is required to file with the Register of the district land ofSce his application, designating the tract desired to be entered, together with his affidavit setting forth the facts which bring him within the re- quirements of the law,'^ whereupon the Receiver issues homestead 68 12 Stat, at Large, 392. fore, enacted that they should only 69 Seymour v. Sanders, 3 Dill. 437. be entered under the homestead law, VO At the close of the civil war, the and, changing the rule, fixed the maxi- President, by proclamation June 13, mum acreage to be entered by a per- 1865, ordered the reopening of the son at 80 acres. This law continudd United States district land offices in in force until June 22, 1876, when the States of Louisiana, Florida, Ar- it was repealed and all of the lands kansas, Mississippi, and Alabama. in the five Southern States were Congress, June 21, 1866, directed that ordered to be brought into market all public lands in those States should by proclamation for sale at public be reserved for settlement under the offering to be followed by private en- homestead act of May 20, 1862. The try. Title to upwards of 12,000,000 obtaining of these lands by the land- acres was initiated by homestead entry less class of the South was considered under the law of 1866. essential to their future welfare and 71 A fee of $10 must also ,be paid that of the Nation. Congress there- at this time, together with a com- § 117] INCEPTION OP TITLE. 121 duplicate receipts for each entry, one of which is delivered to the applicant, and the other returned to the General Land Office.''^ No certificate is issued at the time of entry, nor until the expira- tion of the five years, except in case of a sale for the benefit of infant heirs,''^ or where fuU payment is made before that time as provided by the act. In case of a sale for the benefit of infant heirs, a certificate issues in_^the name of the purchaser, upon evi- dence of sale made in obedience to a decree of a court of com- petent jurisdiction. In case of full payment tlie party is required ,to make proof of settlement and cultivation as required by the pre-emption laws, upon which, and the surrender of the home- stead duplicate, a new and original entry may be made and a receipt will issue as in ordinary cases.''* §117. Rights Acquired Under Homestead Acts. By the pre- liminary proceedings already noted, an inceptive right is vested in the settler, which by a faithful observance of the law in regard to settlement and cultivation for the continuous term of five years, and final proof and payment ''' is perfected and made the basis of a patent or complete title. By the 4th section of the act of 1862, land acquired in this manner is declared to be not liable for debts contracted prior to the issuing of the patent. The sale of a homestead claim by the settler, before comple- tion of title, vests no title or equities in the purchaser, and is not recognized by law,''® and, in making final proof, the settler is by law required to sivear that no part of the land has been alienated mission of one-hali of one per cent. bracing an area of 74,302 square upon the cash, value of the land ap- miles, or 47,553,280 acres. Rep. Gen. plied for, based on $1.25 per acre. Land OfS.ce, 1889. 72 Cir. Gen, Land Of&ce, March 1, 75 The payment here mentioned is a 1884. commission of % of one per cent, paid 73 § 2 of act. The act of March 3, on the issuance of the certificate. The 1891, and subsequent act of June 3, fees and commissions, however, vary 1896, allovr commutation to be made somevrhat. See Instructions Gen. of homestead entries, by payment to Land Office, Oct. 30, 1862. be made after fourteen months from 76 An exception to this rule seems date of settlement. See, 26 Stat, at to have been made tjy the Act of Large, 1098; 29 Stat, at Large, 197. June 15, 1880 (21 Stat, at Large, 74 dr. Gen. Land Office, Oct. 30, §237). This act, however, is retro- 1862. Prom May 20, 1862, the date speetive in its operation and appli- of the law, to June 30, 1889, according cable only to peculiar circumstances, to a very modest estimate, the num- See, Cir. Gen. Land Office, March 1, ber of patents issued was 297,208, em- 1884. 122 ABSTRACTS OP TITLE. [§ H? except for church, cemetery or school purposes, or the right of way of a railroad.''"'' In the event that a homestead claimant dies before patent issues, or before the right to demand a patent has accrued; the land does not become part of his estate. Upon his death all his rights under the homestead entry cease. His heirs thereupon become entitled to a patent,''* not because they have succeeded to his equitable in- terest, however, but because the law gives them preference as new homesteaders, and allows them the benefit of the residence of their ancestor on the land.''^ §118. Desert Land Entries. In the western-central part of the United States there is a vast arid region, estimated to contain more than seven hundred millions of acres, wherein agriculture can be conducted only by means of irrigation.*' These tracts have received the name "desert lands," notwithstanding they possess remai'kable fertility- when properly irrigated, and, from the experience of actual settlers, can be made to produce larger crops than those which reward the labors of the husbandman in regions subject to periodic or occasional rainfall.*^ In order to induce settlement on this class of lands lying west of the Missouri river. Congress, in 1877,*^ passed what is known as the "Desert Land Act," the ob.jeet of which is to effect a rec- lamation of lands whicl^ will not, without artificial irrigation, produce any agricultural crop. This act is not a donation law, however, but simply a variation of the ordinary cash entry, its beneficial features being that the claimant has three years in which to introduce water and pay for the land. A duplicate certificate is issued at the time of entry, a small entry fee being paid, but final certificate of purchase is not given until proof of compliance with the terms of the act and full payment has been made for the land, which is usually three years afterward. 77 Kev. Stat. U. S. i 2288. 81 See, Report on the Lands of the 78 Rev. Stat. U. S. § 2291. Arid Region, by Jowell, 1878 ; Pre- 79 Gjerstadengen v. Van Duzen, 7 liminary Report of Public Land Com- N. Dak. 612. mission, 1880. 80 These lands lie in Nevada, New 82 Act of March 3, 1877. This act Mexico, Arizona, Colorado, Wyoming, applies only to California, Oregon, Southern California, Montana, East- Nevada, Washington, Idaho, Mon- ern Oregon and Washington, and a tana, Utah, Wyoming, Arizona, New portion of the Western part of the Mexico and Dakota. Dakotas. They are also found in small areas in other parts of the West- ern States. § 119] INCEPTION OF TITLE. 123 §119. Timber Culture Entries. To promote the growth of timber on the treeless prairies of the West, Congress further en- acted a law, by which any person entitled to make a pre-emption or homestead entry might secure 160 acres of public land by planting, protecting and keeping in a healthy growing condition thereon, for eight years, ten acres of timber. Lands subject to entry under this act must be composed exclusively of .prairie lands, or other lands devoid of timber. At the expiration of eight years final proof is made and patent issues as in other cases. Residence or actual settlement is not necessary, nor will an entry of this character preclude a simultaneous homestead or pre-emption entry, hence "tree claims" have been made on a large portion of the western lands and will form the initial stage of title to much valuable property. If the owner of a timber claim dies before he has complied with all the conditions necessary to obtain a patent, his heirs may com- plete the remaining conditions, and upon obtaining a patent they take the land in equal shares as direct grantees of the government and not by inheritance.'^ But, like the pre-emption laws, it was found that the timber- culture laws were subjected to much abuse and that many fraudu- lent entries were made, and on March 3, 1891, they were formally repealed.** All valid rights, however, acquired thereunder were not affected by the repeal and all claims initiated before the act might be perfected under the old law. § 120. Location by Military Warrants. The practice of grant- ing bounty land to officers and soldiers who have been engaged in the military service of the United States, as a public reward for devotion and patriotism, dates back to the period of the Revo- lution, and has formed the subject of a number of Congressional enactments since that time.*® The warrants or certificates issued in pursuance of these acts may be located at any land office in the United States and must be made on lands subject to private entry, according to the legal subdivisions and in one body, the selection always to be in as compact a form as possible. The law expressly forbids the location of a warrant upon any lands to which there shall be a pre-emption right, or upon which there shall be an actual settlement or cultivation, or upon any lands which are 83 Cooper V. Wilder, 111 Cal. 191. civil war. The only privileg80 A. c / 40 A. SEi- SWi 40 A. ination consists of a fractional section or lot. Such sketch wiU be of great service to counsel and serve to illustrate and define the boundaries of the land far better than any verbal description can. Where land binds upon a navigable meandered stream or lake, accretions and relictions will occtir, materially changing the shore line, and here the sketch will prove very serviceable in fixing the original boundaries, as well as in determining present rights. § 164. Rectangular Survejdng. The rectangular system of sur- veying above described has now been in operation in the United States for more than one hundred years.' Its advantages over 7 It was formally adopted May 20, 1785. § 164] SURVEYS, PLATS AND SUBDIVISIONS. 169 other methods consist in its economy, simplicity in the process of transfer, brevity of description in deeding the land by patents, and in the convenience of reference of the most minute legal sub- division to the corners and lines of sections,' the convenient mode of subdividing sections with a view to economy and to facilitate sales of small tracts being an essentially marked feature. The principal base, principal meridian, standard parallels and guide meridians constitute the framework of the rectangular system of public surveys, and there are at present permanently established twenty-three principal bases and thirty principal meridians,® con- trolling the public surveys in the land States and territories. As a general rule, the public surveys are governed by one prin- cipal base and principal meridian, but in a few districts and on the Pacific slope, a number of different initial points are neces- sitated by abrupt mountains throughout the district. The lines of public surveys over level ground are measured with a four-pole chain of sixty-six feet in length,^" eighty chains constituting a mile; but where the features of the country are broken and hilly, a two-pole chain is used. The lines and corners thus run are marked and perpetuated by blazing trees, stones, mounds or other monuments, the witness monuments, bearings and distances being ascertained and described in the field notes. The boundaries and contents of the several sections and quarter sections are ascertained in conformity to the following rules : ' ' The boundary lines actually run, and marked in surveys returned, shall be established as the proper boundary lines of the sections or sub- divisions for which they were intended; and the length of such lines, as returned, shall be held and considered as the true length thereof ; and the boundary lines which shall not have been actually run and marked as aforesaid, shall be ascertained by running straight lines from the established corners to the opposite corre- sponding corners ; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the said boundary line shall be ascertained by running from the established corners due north and south or east and west line^ 8 See Zabriskie'3 Land Laws, 508; 10 Commonly known as a "Gun- Instructions Commr. Gen. Land Of- ter's chain." It is composed of one fice. May 3, 1881; Government Man- hundred links. Twenty-five of these ual of Surveying, 1883. links make one rod, but, in practice, 9 These are divided into six numer- rods are now seldom used, distances ieal meridians and twenty-four in- being taken in chains and links. See dependent merdidians named after , appendix • for tables of measures, the locality which they control. 170 ABSTRACTS OF TITLE. [§ 165 (as the case may be) to the water-course or other external boundary of such fractional township. "^^ § 165. Meander Lines. Meander lines are run, in surveying fractional portions of the public lands bordering on navigable rivers, not as boundaries of the tract, but for the purpose of defin- ing the sinuosities of the bank of the stream, and as the means of ascertaining the quantity of land in the fraction subject to sale, and which is to be paid for by the purchaser.^^ Fractional divi- sions, made so by the interference of water, are designated and sold by the numbers attached to the lots, and reference is always had to the notes of survey. The water indicated in these notes is always the boundary, and where there exists a difference between the meandered line as run and the existing line of the water-course, the latter and not the former is to be considered the true boun- dary.^' Yet, though a meandered line is generally considered as following the windings of a stream, it seems the question whether it does so or not may always be determined by evidence alimide, and the mere fact that it is run and designated upon the plats as a meandered line is not conclusive against the government; thus, it has been held, that an entry of government land, bounded by a meandered line, does not include land lying at the time between such meandered line and the bank of the river.^* So, too, while the meander line is not, in strict sense, a boundary, yet if there is no body of water corresponding to the meander line, to which the ownership of adjoining lands extends, then the line limits the extent of the land conveyed.^* Where fractional pieces of land are patented, bounded in part by a stream or bayou, the original plat may be resorted to, and the lines as originally run will control. This is the rule adopted in determining controversies between contiguous proprietors of fractional lands, the patentees, and those claiming under them, being restricted to the boundaries as shown by the plats and field notes. In all cases, where land is made fractional by a navigable water-course, the patentee purchases by the plat, and a patent for a fractional part of a quarter section on one side of a water-course, 111 Stat, at Large, 446; 2 Stat. ULammers v. Nissen, 4 Neb. 245. at Large, 73; 2 do. 313. But see Wright v. Day, 33 Wis. 260, 12 E. E. Co. V. Schurmeir, 7 Wall. and authorities last cited. (TJ. S.) 272; Lamprey v. State, 52 IS As where a meandered lake had Minn. 181. dried up. Carr v. Moore, 119 Iowa, iSBoorman v. Sunnucks, 42 Wis. 152. 233; Houck v. Yates, 82 111. 179; Lamprey v. State, 52 Minn. 181. § 166] SURVEYS, PLATS AND SUBDIVISIONS. 171 where the area sold is noted on the plat of the fractional tract called for by the patent, will not extend his entry and purchase across the stream, so as to embrace that part of the quarter on the other side.^^ § 166. Plats and Subdivisions. Agricultural lands seldom re- ceive any other subdiyidiijig than that afforded by the government survey, but in cities, towns and villages, the necessities of society reqUjire a most minute subdivision into what are popularly termed bloclss and lots." Original subdivisions again become the subject of resubdivisions, , and these in turn are ijot infrequently- divided to nieet the exigencies of. social or business relations. The formal act of resurveyiag is technically termed a subdivision; the result of the survey, when projected upon. paper, a plat. These, subdivisions and plats play an important part, both in conveyancing. and in the examination of titles, and upon them no small ^portion of .the validity of. land titles rests. In every com- munity of any appreciable size, lands are conveyed and described with special , reference to these plats and subdivisions, the govern- ment surv.ey being referred to only incidentally and for the pur- pose, of greater certainty in locating the particular tract which forms the subject of the plat. They form equally as important features ia^ preparing an abstract as the title deeds there shown, and require the same degree of care from the examiner in their exposition. Where a deed of conveyance gives no other descrip- tion of the land than the lot or block of a survey or subdivision, the authentic plat of such survey is as much a part of the deed as if set out in it,^* and a reference to a plat is as effective by way of estoppel as express words of grant or covenant.^® A reference to a plat by lot and block has usually a more controlling influence than a special description, and when a designation by lot is fol- leMeCormick v. Huse, 78 111. 363. other receptacle, and drawn out by 17 The term "lot" seems to be those among whom: the land was to peculiar ,to American land parceling. be divided. Each man would then Its origin is unknown. It does not take the parcel corresponding to the appear to have any aflSnity with the number he had drawn, and as his term as used in other connections, land had come to him, literally, by as "a lot of goods," etc It is said lot, it soon became customary to that the word, in connection with speak of the land as a lot, and the land, . originated in the colonies and usage has . ever continued, grew out of the custom of dividing 18 Dolde v. Vodicka, 49 Mo. 100; grants into parcels and then number- Powers v. Jackson, 50 Cal. 429. ing each pareel. The numbers would 19 Baxter v. Arnold, 114 Mass. 577; then be placed in a hat, or some Cox v. James, 45 N. T. 557. 172 ABSTRACTS OP TITLE. [§ 166 lowed by a description by metes and bounds embracing an area less than the lot, it has been held to import an intent of the grantor to convey the whole lot, the law presuming the addition to be merely an effort to give a more particular description.^" § 167. Formal Requisites. The formalities attending the plat- ting and subdividing of land are the subject of express statutory regulation in all the States, and, unlike deeds, there are no common or uniform methods, each State providing its own system of plat- ting and authentication. Ordinarily the plat must show the shape and exterior boundaries of the land it is intended to represent, and of each subdivision thereof; the length and courses of all boundary lines ; the monuments erected in the field ; and the name of the tract so divided, as well as the streets, alleys, etc., shown thereon, together with the width of such streets, alleys, etc. Ap- pended to the plat there must usually be a description of the land surveyed, officially certified by the surveyor and a certificate ot acknowledgment by the owner or owners of the land. In addi- tion, municipal regulations sometimes require an approval by the civic authorities. The foregoing, or similar requirements, are usually made indispensable requisites to registration, and their faithful observance is necessary to give validity to the subdivision. As a Tule, no field notes are required, the dimensions shown upon the plat being sufficient for all practical purposes. Plats are usually recorded in the registry of deeds in special books, though this is not a uniform practice, and where no specific regulation exists they will also be found in other places. Thus, arbitrary divisions made by the assessor for the purposes of taxa- tion win frequently be found in the office of the auditor or clerk of the county; plats made by the order of a court of chancery in partition, and other cases, wiU be found among the records and archives of the court, though these observations apply rather to what has been than to present practices. At the present time all plats, particularly in the newer States, are required to be filed with the recorder of deeds. The following will serve as a precedent for abstracting a plat and subdivision, the minor details of which must be varied to suit the demands of local legislation. Subdivision 1 Plat, entitled [here set out the title as iy I found on the plat, and proceed as here- William Smith I inafter shown] . 20 Rutherford v. Tracy, 48 Mo. 325. § 167] SURVEYS, PLATS AND SUBDIVISIONS. 173 Or, if desired, commence it thus : SinAth's subdivision^^ of The northeast quarter of the northwest quar- ter of Section 10, Town 13 North, Bange 21, East of the Plat, entitled as in the margin. Recorded June 2, 1881. Book 2 of Plats, page 25. Surveyor's certificate, by Jason Lothrop, dated June 1, 1881, certifies that he has surveyed the northeast qwa/rter, etc., [set out description by surveyor] into lots and 3d P M I i^ocks, as shown upon the annexed map, and that said map is a correct representa- tion of all the exterior boundaries of the land surveyed, and of the divisions thereon made, and further certifies that said survey and map was made by the order and direction of William Smith, and that he has fully complied with all the provisions of the law in surveying, subdividing and mapping same. [Should notes of survey be filed in addition to the map, they may be shown or not in the discretion of the examiner, or as his client may direct.] Acknowledged by William Smith, as owner, June 2, 1881. In subdivisions of urban lands the plat is usually required to be approved by the civic authorities or by some special officer ap- pointed for that purpose. The approval may be general or only with reference to streets and alleys. When such is the case a brief reference to the approval, when endorsed upon the plat, should be shown in the abstract. Thus : Approved May 29, 1882, by the Board of Trnstees of the Town of Salem (as to location of streets and alleys only). The map should then follow, prefaced by the statement: Said map is as follows. Usually, if the map is small, it is customary to insert it. If very large, then only such portion need be set out as is necessary to show the relative location, shape, boundaries and distances of the particular lot or lots under examination. In this event, the concluding paragraph should read: 21 This is taken from the title of the plat, and. should consist of a literal transcription. 174 ABSTRACTS OF TITLE. [§ 167 So much of said map as relates to the land in question is as follows: Sometimes the client will direct the omission of the map. "When such is the ease it may be noted as follows : By direction we omit the map. It is recommended that whenever practicable the plat or some portion of it be shown. It is usually of considerable assistance to counsel, and if the examination involves niceties in measure- ments, or conflicting claims of contiguous proprietors, it is indis- pensable. If the law requires attesting witnesses any defect of this nature should be noted, as also any imperfect or defective execu- tion. Plats and subdivisions made by executors, administrators and guardians, as well as in partitions between heirs and tenants in common are frequently made under the direction and sanction of a court of equity, and in this event a general synopsis of the proceedings in court, as well as the acts of the owners or parties interested, should be shown. § 168. Effect of Registration. When duly executed, acknowl- edged and recorded, as provided by law, a certified copy of a plat and subdivision may be used in evidence to the same extent and with like effect as in case of deeds, and by statute such registration and acknowledgment is usually made to operate as a conveyance in fee simple of those portions of the platted lands as are marked or noted on such plat as donated or granted to the public, or any society, corporation or body politic, and as a general warranty against the donor, his heirs and representatives, to such donee or grantee for their use, or for the use and purposes therein named or intended, but for no other use. The parts intended for streets, alleys, ways, commons, or other public uses, are held in the cor- porate name of the municipality in trust for the uses and purposes set forth or intended.^^ Selling by a plat which has not been re- corded is a misdemeanor in many of the States. § 169. Vacation and Cancellation. The making of plats and subdivisions being regulated, in the main, by statute, no uniform rules can be given as to the method of vacation or cancellation, and recourse must be had to local law, as in the case of platting and 22 See R. S. 111. 1845, p. 115; do. 645; see infra, "Dedication by 1874, p. 771; E. S. Wis. 1878, p. Plat," §170. § 169] SURVEYS, PLATS AND SUBDIVISIONS. 175 recording. Ordinarily a plat may be vacated by the owner of the property, at any time before he has disposed of any part thereof, by a written instrument declaring such intention, executed, ac- knowledged or proved, and recorded in like manner as deeds of land. Such a declaration, duly recorded, usually operates to de- stroy the force and effect of the recording of the plat so vacated, and divests all public rights in the streets, alleys, public grounds, etc., laid out or described in such plat.** The record of the plat so vacated should also refer to the vacation. The foregoing describes the common and most simple manner of vacation. In some States, however, more formality is required, frequently rendering necessary the intervention of a court, as well to authorize the initiation of proceedings as to approve of such as may be taken.** "Where an application is required to be made to a court, notice is also required to all whom it may concern. In the former case of vacation a synopsis of the instrument filed is all that is necessary in the abstract; in the latter, a resume of the steps taken as well as the judgment or order of the court is neces- sary. The effect is practically the same in either case both as to the owners and the public. When made by a declaratory state- ment,, the abstract would be substantially as follows: Vacation^^ of The plat of River- dale, being Fred. Schmidt's subdivision of part of the south 2,300 chains of the southeast quarter of section 33, toum 37 north, range 14 east. Declaration of vacation. Dated Jan. 31, 1883. Recorded Jan. 31, 1883. Book 852, page 210. Recites, that Frederick Schmidt, who is ■ the sole owner of all the lands and lots covered by blocks 5, 6, 7, 8, 9, 10 (etc.), of Frederick Schmidt's subdivision of part of the south 2,300 chains of the southeast quar- ter of section 33, toum 37 north, range 14 east of the 3d P. M. in the County of Cook, amd State of Illinois, recorded June 21, 1874, in book 7„,of plats, page 83, under the provisions of the statute, sets aside the sub- division referred to and vacates the same for the pwrpQse of re- storing the property to its original condition, meaning and intend- ing to declare vacated, and does declare vacated the whole of said plat. Acknowledged Jan. 31, 1883. 28 B. S. III. 1874, Chap. 109, §6. 84 B. S. Wis. 1878, C!hap. 101, S 2265. 176 ABSTRACTS OF TITLE. {§ 169 Whenever practicable, a vacation should immediately follow the abstract of the subdivision and plat thereby affected. This can always be done where no conveyances have been made. Where portions of the property have been sold and the owners join in the execution of the vacation, the deeds to them will intervene in chro- nological order. As a rule, there can be no vacation of a portion of a plat containing a dedication of land to a public use unless all of the owners of said lots sold with reference thereto join in the proceeding.2^ §170. Dedication by Plat. Where a dedication to public use is sought to be established from the acquiescence of the owner in the use of the property by the public, or from acts or declarations of an equivocal character, which are consistent with a dedication to the publie use, or to the mere permissive use by the public for a temporary though indefiaiite period of time, the intention of the owner in permitting such use is unquestionably of controlling in- fluence and importance in determining whether property has been dedicated by the .owner to public use or not.^' But where the dedication is clearly manifested by unequivocal acts or declara- tions, upon which the public or those interested in such dedication have acted, the fact that the owner may have entertained a differ- ent intention from that manifested by his acts or declarations is of no consequence.^* Therefore, if the owner of land subdivides and plats the same, or lays out and establishes a town or any addi- tion thereto, and makes and exhibits a map or plan of such town or addition, with streets, alleys, public squares, etc., and sells the lots with reference to such map or plan, the purchasers acquire, as appurtenant to their lots, all such rights, privileges, easements and servitudes represented by such map or plan to belong to them, or to their owners, and the sale and conveyance of lots according to such map implies a grant or covenant, for the benefit of the own- ers of the lots, that the streets and other public places represented by the map shall never be appropriated by the owner to a use in- consistent with that represented by the map on the faith of which the lots are sold.^® ZB Instead of this caption the ex- v. Dixon, 9 How. 30 ; Manderschild aminer may say, ' ' Vacation by Fred- v. Dubuque, 29 Iowa, 73 ; Godfrey erick Schmidt," and then set out the v. City of Alton, 12 111. 29; Rees v. title of the plat vacated in the right- Chicago, 38 111. 322. hand margin. 28 Lamar County v. 'Clements, 49 26 "Village of Lee v. Harris, 206 Tex. 347. 111. 428. 29 Lamar County v. Clements, 49 27 Dillon Mun. Corp. §498; Irwin Tex. 347; Huber v. Gazley, 18 Ohio, § 171]. SURVEYS, PLATS AND SUBDIVISIONS. 177 If the owner of land indicates by the map, or other unequivocal acts or declarations, that a particular lot or square is to be re- served or applied to a particular or specific use, of a qiMsi public character, and such as to induce purchasers of contiguous or neigh- boring lots to give a higher price than they otherwise would, the use to which such lot was to be appropriated would no doubt be a reservation, and not, strictly speaking, a dedication to public use. But, nevertheless, the difference, so far as the owners of lots pur- chased on the faith of such reservation are concerned, is merely nominal, for the owner of the property who thus sells it is estopped from appropriating the land so reserved to a purpose inconsistent with that for which it was reserved, or he will be held by such sale to have created a servitude in the property reserved in favor of the dominant estate, which he has conveyed, which will prevent his applying the reserved property to any other purpose than that for which it was reserved.'" As a general proposition the fee does not pass by a dedication but remains in the original proprietor burdened with the public use; but in a statutory dedication, by making and recording a plat, the fee passes as an incident and is held by the municipality for the use and benefit of the public.'^ An important distinction will therefore be made between a common-law and a statutory ded- ication. But while the courts have uniformly held that a fee passes by statutory dedication, yet it certainly is not a fee in the usual legal acceptation of that term.'^ In fact the interest thus conveyed is practically a new form of estate for which neither courts nor legal lexicographers seem, as yet, to have been able to find a name. As a necessary sequence, where the title of one who makes a dedication fails, the dedication also fails ; but if the owner of the title recognizes the dedication, as where there has been a plat made by the one whose title has failed and the true owner deeds lands according to the plat, he will be estopped from denying the dedication. '^ § 171. Re-surveys. Occasionally re-surveys are made, when, by reason of time or circumstance, the original survey fails to fur- is ; Logansport v. Dunn, 8 Ind. 378 Beaty v. Kurtz, 2 Pet. 566. 80 Harrison v. Boring, 44 Tex. 255 Com. V. Eush, 14 Penn. St. 186. Sllianly v. Gibson, 13 111. 308 E. E. Co. V. Joliet, 79' ni. 25; Eeid Warvelle Abstracts — 13 V. Board of Education, 73 Mo. 34. This is statutory. Consult local stat- utes. 32 Field V. Barling, 149 111. 556. 33Griaiey v. Hopkins, 84 111. 528. 178 ABSTRACTS OP TITLE. [§ 171 nish the desired information. The only object of a re-survey is to determine the lines of the original, and hence it will never be per- mitted to change or alter the lines of the old survey whenever such lines can be ascertained from monuments or other authentic data. In every instance the monuments set by the original sur- vey and named or referred to in the plat, are the highest and best evidence from which to determine lines. If these are lacking the stakes set by the surveyor may be resorted to, and, in the event that these can not be found, buildings or permanent erections shown to have been constructed according to them may themselves be considered monuments and proper evidence for locating the true lines. The disturbance of ancient lines and boundaries is discouraged by the courts as tending to create confusion and the unrest of titles, and this is particularly the case where, as often happens, municipal oificers attempt arbitrary re-surveys for the purpose of correcting or changing the lines or boundaries of a town.'* 3* See, Eacine v. Emeraon, 85 Wis. 80. CHAPTER XIII. FORMAL PARTS OF DEEDS. 5 172. Operative parts of a deed. i 173. Names of the parties. S 174. Grantors. 1 175. Grantees. 1 176. Nature of the instrument. § 177. Date of instrument. ; 178. Begistration. ^ 179. Consideration. § 180. Effect of consideration. 5181. Words of grant. 5 182. Words of inheritance and limitation. \ 183. Description of property. § 184. Description— ^Sufficiency. i 185. Description — Identification. § 186. Description — Construction. § 187. Special recitals. §188. The habendum. § 189. Exceptions and reservations. § 190. Conditions and limitations. § 191. Covenants. § 192. Execution. § 193. The signature. § 194. The seal. § 195. Attestation. § 196. Actnovrledgment. § 197. Delivery. 1 198. Ancient deeds. § 199. Stamps. §172. Operative Parts of a Deed. In making an abstract or synopsis of a deed of conveyance, the essential features which require notice on the part of the examiner are as follows : The names of the parties, grantor and grantee respectively, with full descriptio persome, including the character in which they act. The nature of the instrument. The dates respectively, or execution and registration, together with the volume and page of the registry. The consideration, or other matter of inducement. The operative words of grant, inheritance and limitation. The description of the land or property conveyed. The habendum, whenever it assumes to limit or qualify the grant. Eeservations and exceptions from the grant. Covenants and conditions. Restrictive clauses, and directions respecting the uses to which the land shall be applied. Special recitals. Execution and attestation. The acknowledgment and certificate of conformity. A number of the foregoing parts must appear in every abstract, while a few need only be shown when they become material; the question of materiality to be decided by the examiner from the 179 180 ABSTRACTS OP TITLK. [§ 172 circumstances developed in each particular case. A brief review of the foregoing heads will be made in the succeeding paragraphs and the subjects will also receive further consideration in other parts of the work treating of specific conveyances. § 173. Names of the Parties. As there can be no valid deed without grantors to give ^ and grantees capable of taking,^ the par- ties to the conveyance form the first natural inquiry. In the abstract they should be shown with the same certainty of identity as in the original instruments, together with any imperfect desig- nation, error or omission appearing on the face of the deed or deduced inferentially from a comparison with other instruments in the chain. Errors or omissions, however slight or trivial, should always be mentioned in such a manner as to bring them to the attention of any person who may peruse the abstract, and, when necessary, such mention may be supplemented by the examiner's private note, or by references to other instruments shown in the same examination. The names of the parties should form the cap- tion to the synopsis, and are usually written in the style of a legal caption or entitlement in court proceedings, on the left hand mar- gin of the sheet and united by a bracket. § 174. Grantors. The names of the grantors appear several times in a deed. They are usually inserted among the first recitals of the premises, accompanied with a description of ^he person and other particulars as to residence, marriage, capacity, etc. Fre- quently they again appear in the covenant clause and "finally in the execution. In abstracting a deed the names, wherever written, should be carefully compared with each other and variances in the granting or covenanting clauses as well as in the execution and ac- knowledgment, properly noted. The domestic relations of either or any of the grantors, if stated, should always be given with the same particularity as the original. At common law the deed of a married woman is absolutely void,' but by liberal and progressive legislative enactments, this rigorous and seemingly unjust rule has been practically abrogated. The examiner will therefore note the changes of the law in this respect, as applied in his own State, and carefully observe that all the re- quirements of the statute, at the date of the deed, have been sub- 1 Whitaker V. MiUer, 83 111. 381. 3 Fowler v. Shearer, 7 Mass. 14; 2 Garnett v. Gariiett, 7 T. B. Mon. Lane v. Soulard, 15 111. 124. (Ky.) 545; Douthitt v. Stinson, 63 Mo. 268. § 175] FORMAL PARTS OF DEEDS. 181 stantially complied with, as a married woman can only be divested of her property or interest in land in the mode which the Legisla- ture has prescribed.* Although it is the universal practice of conveyancers to insert after the names, the residence and not infrequently the occupation of the parties, there appears no good reason why these matters should he transferred to the abstract. The question of alienage is set at rest in most of the States by special legislation, while the chain of conveyances is usually sufficient to prove identity without referring to residence or occupation. Some examiners give the residence of parties only when they reside without the State, as an aid in determining their identity in the search for judgments, or to enable counsel to further prosecute inquiries raised by the abstract and not answered therein. The matter is optional with the examiner and may be Emitted or not in his discretion. Special descriptions, particularly when explanatory of the capacity in which the parties act,^ should be given verbatim. This direction acquires additional force when such descriptions indicate repre- sentative or official character. § 175. Grantees. Most of the foregoing remarks on grantors apply with equal force to grantees, and the same care should be observed in reciting and describing them. The names of the gran- tees are found in the operative part of the premises, and occa- sionally are repeated in the habendum, though the references which follow are usually to "said second parties." Imperfect designa- tion, errors and omissions should be treated, so far as may be, in the same general manner as in case of grantors, though these cir- cumstances are not so apparent when applied to grantees, and usually must be deduced inferentially or by comparison. It is essential to the validity of a conveyance that it be to a grantee capable of taking and of proper identification; hence, a deed to one who had died prior to its execution ^ or to a person not in being,' or to a corporation which has no legal existence,* would be a nullity, and pass no title to any one.® The same result 4 Mason V. Brock, 12 111. 273; Gar- v. Hollingsworth, 113 Ga. 210. But ret V. Moss, 22 111. 363; Heaton v. this, of course, refers only to a deed Pryberger, 38 Iowa, 185. conveying a present estate. B As neirs at law of a deceased 8 Bouthitt v. Stinson, 63 Mo. 268. person; devisee of a certain testator; SDouthitt v. Stinson, 63 Mo. 268; widow of a former grantor, etc. Hornbeck v. Westbrook, 9 Johns. (N. 6 Hunter v. Watson, 12 Cal. 363. T.) 73; but although no grantee be T Morris v. Candle, 178 111. 9; named, if the grant be made for a Heath v. Heath, 114 N. C. 547; Davis specific use, a trust will often be 182 ABSTRACTS OP TITLE. [§175 would follow from a deed to the heirs of a living person named therein without giving the names of the heirs. ^* So, too, a con- veyance to Jno. Smith & Co. would, at law,^^ have the effect to vest the title in Jno. Smith alone, ^"^ a firm name not being a sufficient naming of the grantee; yet it seems that this may be regarded as a latent ambiguity which may be explained by parol,^* while in equity, he would be treated as holding the legal title in trust for the partnership.^* A conveyance to John Smith & Son would be effective, however, as "son" is a sufficient word of purchase, and, similarly, a deed to Smith & Jones of a designated place, would be legally sufficient to pass title to John Smith and Thomas Jones, it being shown that they were engaged in business as partners at the place named.^* An absolute conveyance from husband to wife, while void, at law, will generally be upheld in equity, and will vest the title in the wife as against the heirs of the husband. ^^ A deed to a party by a wrong baptismal or Christian name will yet vest title in the intended grantee,^'' extrinsic evidence being admissible to explain mistakes or prove identity,^* and if upon a created whieh a court of equity mil protect, and, if necessary, appoint a trustee and compel a conveyance) to him of the legal title. Bailey v. Kil- burn, 10 Met. (Mass.) 176. 10 Hall V. Leonard, 1 Pick. (Mass.) 27; Winslow v. Winslow, 52 Ind. 8. In a similar case in Tennessee, how- ever, it was held that the word ' ' heirs ' ' should not be taken in its technical signification, but to mean "children," and that the deed took effect as a present grant. See Grimes V. Orrand, 2 Heisk. (Tenn.) 298. The same construction was had in a ease where it plainly appeared to be the intention of the grantor. See, Eober- son V. "Wampler, 104 Va. 380, 51 S. E. 835. 11 The several members of a firm cannot be regarded, in the view of a court of law, as holding real estate as tenants in common, unless it be conveyed to them, as such, by name. Upon this point, however, there is some. conflict in the decisions. While the text states the general rule it was held in Kentucky Coal Co. v. Sewell, 249 Fed. 840, that a deed to a partnership, composed of two persons, under the firm name of one of them "and Co.," would convey title to the partners as tenants in common. 12 Arthur v. "Webster, 22 Mo. 378; Winter v. Stock, 29 Cal. 407; Gos- sett V. Kent, 19 Ark. 607; Baruett v. Lachman, 12 Nev. 361. iSMurry v. Blackledge, 71 N. 0. 492; Morse v. Carpenter, 19 Vt. 614; Menage v. Burke, 43 Minn. 211, 45 N. W. 155. 14 Cooper V. Newton, 68 Ark. 157, 56 S. W. 867. 15 Menage v. Burke, 43 Minn. 211; and see, Kelley v. Bourne, 15 Oreg. 476; Cole v. Mette, 65 Ark. 506, 47 -S. W. 407. 16 Putnam v. Bicknell, 18 Wis. 333 ; Dale V. Lincoln, 62 111. 22; Sherman V. Hogland, 54 Ind. 578. IvStaak V. Sigelkow, 12 Wis. 234; but see Crawford v. Spencer, 8 Cush. (Mass.) 418. ,,. ISPeabody v. Brown, 10 Gray (MavSS.) 45. § 176] FORMAL PARTS OF DEEDS. 183 view of the whole instrument the grantee is pointed out, the grant will not fail, even though the name of baptism be not given at all.^' When two persons bear the same name any designatory quality mentioned in the deed should be shown, as "Jr.,"^'* "2d," etc., and for the purpose of more certain identification it is often well to add the residence of the parties if given. If father and son bear the same name, unless explained, the grant will be taken as one to the father." No person can take a present estate under a deed unless named therein as a party, and the habendum can never introduce one who is a stranger to the premises to take as grantee,^* though he may take by way of remainder, but where the grantee's name has been omitted in the premises, if the habendum be to him by name, his heirs, etc., he takes as a party, and the defect is eured.*^ Far less strictness is required as to capacity, etc., in grantees than is ob- served in case of grantors, and few of the disabilities which encom- pass the latter are applicable to the former. Coverture, infancy, lunacy, etc., form no bar to the grant, but as a rule, to be valid, it must be to a corporation, or to some certain person named, who can take by force of the grant, and hold in his own right, or as trustee.** § 176. Nature of the Instrument. After the recital of the par- ties, the next inquiry of importance is the nature of the convey- ance, which can be ascertained only from a general survey of the entire instrument. The name of the document should be written On the right hand margin of the sheet in the manner hereafter shown, and should be sufSeiently full to indicate its true purport. The name of the particular kind of deed has, of course, no legal efficacy or value, but serves as a fitting introduction to the synopsis, and apprises the reader at the outset of its import and character. Where the deed is made with general warranty it is described in the abstract as a "Warranty Deed." This will be a sufficient reference to the covenant. So, too, if the instrument is a quit claim, and is so described, no necessity will exist for setting out 19Kewton v. McKay, 29 Mich. 1; as well as family name. Padgett v. and see Seanlan v. Wright, 13 Pick. Lawrence, 10 Paige (N. Y.), 170. (Mass.) 523. 21 Stevens v. West, 6 Jones (N. C), 20 The word "Jr." forms no part 49; Padgett v. Lawrence, 10 Paige of the name of the person to whose (N. T.), 170. name it is usually afSxed, tut is 22 Blair v. Osborne, 84 N. 0. 417; merely descriptive of the person in- Hornbeek v. Westbrook, 9 Johns. 73. tended, and is usually adopted ' to 23 Lawe v. Hyde, 39 Wis. 346. designate the son where father and 24 Jackson v. Cajy, 8 Johns. 385; son both have the same Christian name Newton v. McKay, 29 Mich. 1. 184 ABSTRACTS OF TITLE. [§ 176 the operative words of conveyance or other recitals. If the iastru- ment departs from conventional forms it may be described simply as a "Deed," and so much of the special matter should be given as will enable counsel to determine its specific character and opera- tive effect. If the nature of the instrument will not permit its classification as a deed, agreement, or other common form of desig- nation it may be described simply as "instrument." §177. Date of Instrument. The date of the execution of the deed should foUow next in order, and may consist simply of a line embodying the fact, as, Daied July 10, 1882, or, if without date, a statement to that effect. The date is no part of the substance of a deed,^^ nor is it essential to its validity,*^ the conveyance taking effect only from its delivery ,27 but the date may become important in determining questions of priority,** or in ascertaining whether all the statutory requirements at the time of the execution of the deed have been complied with. The date of a deed, in the absence of other proof, is presumed to be the true date of its execution,*^ as well as delivery, ^o and is the time from which title in the grantee should, in most cases, be computed.*! As deeds are now drawn, the date usually forms the initial re- cital of the premises,'" though it may frequently be found in the testimonium clause,** and in case of discrepancy the latter should, it seems, be taken as the true date.** Though the expressed date of a deed is immaterial to its operation and effect,*^ and may under ordinary circumstances be contradicted or explained, yet when 26 Jackson v. Sehoonmaker, 2 32 This will always be the case Johns. 230 ; Meaeh v. Fowler, 14 Ark. where the deed is in form an inden- 29; Costigan v. Gould, 5 Denio, 290. ture. 26 Jackson v. Bard, 4 Johns. 230; 33 In deeds-poll the date always ap- Blake v. Pish, 44 111. 302; Thomp- pears in the testatum. son V. Thompson, 9 Ind. 323. 34 Morrison v. Caldwell, 5 T. B. 27 Thatcher T. St. Andrew's Church, Mon. (Ky.) 436. In formally drawn 37 Mich. 264; Whitaker v. Miller, 83 deeds where the date is stated in the ■'^"- ^Sl- premises the testimonium recital is 28 See title "delivery." usually "the day and year first above 29Darst V. Bates, 51 HI. 439; Smith written" without specific mention. V. Porter, 10 Gray, 66. 36 Harrison v. Trustees of Phillips," 80 Hardin v. Crate, 78 111. 553. Academy, 12 Mass. 456. 81 Breekenridge v. Todd, 61 Am. Dec. 83. § 179] FORMAL PARTS OF DKEDS. 185 taken in connection with conditions or stipulations annexed to the grant, it may become important in fixing the time for the per- formance of any act by grantor or grantee, and in such case can not be varied by parol.^® Should the instrument be without date, the date of acknowledgment may be presumed to be also that of execution and delivery.*'' § 178. Registration. For convenience, the particulars of regis- tration should follow the date, though many examiners prefer to insert them at the conclusion of the synopsis as a proper logical sequence. On the perusal of the abstract, however, these facts are best read together, and, to facilitate the labors of counsel, should be placed as first indicated. The only material facts concerning registration are, the date of record and the volume and page on which the instrument is recorded, which should be stated briefly and concisely. In case of re-record, the date, volume and page of the former record may be given after the synopsis as a supple- mental foot-note.** As the general subject of registration has already been quite fully noticed, but little need be further said in this connection. The date of record is important in passing on questions of prior- ity, particularly when the instrument is itself without date, and it acquires an additional importance in those States where by statute, it must be recorded within a specified time to secure pref- erence over other conveyances or against creditors. Whenever practicable, it is recommended that all information be taken direct from the records, but occasionally it will happen that through the tardiness of the enrolling officers, deeds, and other instruments are not actually transcribed until long after they have been filed for record. In this event the examiner, in order to fully cover the period, of his search, must have recourse to the original documents, but it is further recommended that after the synopsis of aU such documents, the examiner append the following : Note. — The particulars of the foregoing conveyance taken from the original instrument. § 179. Consideration. The consideration named in the deed next follows, and when consisting of the ordinary acknowledgment 36 Joseph V. Biglow, 4 Gush. 38 For a precedent see § 238. (Mass.) 82. 37 Gorman v. Stanton, 5 Mo. App. 585. 186 ABSTRACTS OF TITLE. [§ 185 of the receipt of money, may be expressed in a simple statement of the amount mentioned; as Consideration, $1,000.00. The consideration recital, under the current of modem decisions, has lost its former importance and not infrequently fails to denote the true motive of the conveyance. When only a nominal sum is inserted, coupled with other considerations not of a pecuniary nature, as "love and affection," marriage, performance of specific acts, etc., the recital should be given in full, in the identical lan- guage of the instrument, and verified by quotation marks. When the expressed consideration amounts to a condition, precedent or subsequent, this may become of primary importance, while it should always be stated with sufficient clearness to enable counsel to de- termitie whether same is sufficient to sustain the conveyance. Should the instrument be without consideration, this fact should also be noted in the line, No consideration expressed. § 180. Effect of Consideration. No consideration was required in conveyances under the common law, the homage and fealty incident thereto being deemed sufficient, but became necessary under the statute of uses.^' As a general proposition, any val- uable consideration, acknowledged or proved, is sufficient to sus-. tain a conveyance of lands,*^ and the acknowledgment in the deed of payment thereof is so far conclusive of the fact as to give effect to the conveyance.*^ A deed executed by the party in whom the title is vested, and expressing a valuable consideration, never needs, as against him or those claiming under him, or as against a stranger, to be supported by showing what other- reason, in addi- tion to the will of the party, led to its execution.*^ Nor is it essen- tial to the validity of a conveyance that the consideration should be expressed,^ and a deed, if properly drawn, will pass the title, 39 At the present time the only Fuller, 46 Me. 141 ; Graves v. Graves, practical operation of the expression 29 N. H. 129. of a consideration or the introduction 40 Jackson v. Leek, 19 Wend. 339. of a clause reciting a consideration, 41 OehUtree v. McClurg, 7 W. Va. is to prevent a resulting trust to the 232; Bobb v. Bobb, 89 Mo. 411. grantor and estop him from denying 42 Rockwell v. Brown, 54 N. T. 210 ; the making and effect of the deed for Merrill v. Burbank, 23 Me. 538. the uses therein declared. Meeker v. 43 Jackson v. Dillon, 2 Overt Meeker, 16 Conn. 383; Goodspeed v. (Tenn.), 261; Wood v. Beach, 7 Vt. § 181] FORMAL PARTS OP DEEDS. 187 whatever it may be, without reference to the consideration paid.** Where parties contract by deed, a consideration will usually be implied from the seal,*® which as a rule imports consideration,*" and it has been held that an instrument in form a conveyance and duly signed, whether under seal or not, imports a consideration,*'' while a voluntary conveyance, without any consideration, either good or valuable, is valid and binding between the parties and their privies.** As against the grantor, and those in privity with him, the ac- knowledgment in the deed of payment of the purchase price is his receipt or admission, which on proof of the deed will be considered as proved.*^ Such acknowledgment, however, is not conclusive, being merely by way of recital, and though it affords prima facie evidence of the fact, yet, like any other receipt, it may be inquired into,®" and, for the purpose of recovering the consideration, the grantor may still show that it was never, in fact, paid,®^ but not to invalidate or defeat the operation of the deed.*^ As against the creditors of the grantor such recital is but hear- say, and no evidence of the fact of payment,*' but no one except a creditor can avail himself of the objection that the deed was given without consideration.** §181. Words of Grant. The operative words of grant are found in the premises and usually immediately follow the consid- eration recitals, in which order they should also appear in the abstract whenever it may be desirable to set them forth fully. It is a familiar rule with conveyancers, that to vest a title to land the deed must contain apt words of grant, release Qr conveyance,** 522 ; Boyn ton V. Bees, 8 Pick. (Mass.) eOHuebsch v. Soheel, 81 111. 281; 329. Parker v. Foy, 43 Miss. 260 ; Webb v. MFetrow T. Merriweather, 53 111. Peele, 7 Pick. (Mass.) 247. 278; Laberee v. Carleton, 53 Me. 211. 61 Barter v. Greenleaf, 65 Me. 405; W Ross T. Sadgbeer, 21 Wend. 166; Paige v. Sherman, 6 Gray (Mass.), Evans v. Edwards, 26 111. 279; Croker 511; Grout v. Townsend, 2 Hill (N. V. Gilbert, 9 Cush. (Mass.) 131. Y.) 554. 46 Hunt V. Johns'on, 19 N. Y. 279; 52 Bassett v. Bassett, 55 Me. 127; Croft V. Bunster, 9 Wis. 503 ; Bush v. Newell v. Newell, 14 Can. 206 ; Eich- Stevens, 24 Wend. (N. Y.) 256. ardson v. Clow, 8 III. App. 91. «Euth V. King, 9 Kan. 17. This S3 Redfield Mfg. Co. v. Dysart, 62 in the absence of statutory require- Pa. St. 62; Rose v. Taunton, 119 ments to the contrary. Mass. 99; Houston v. Blackman, 66 48Fouby V. Pouby, 34 Ind. 433; Ala. 559. Wallace v. Harris, 32 Mich. 380 ; La- Bi Hatch v. Bates, 54 Me. 136. beree v. Carleton, 53 Me. 211; 65 Johnson v. Bantock, 38 111. Ill ; 48Bayliss v. Williams, 6 Coldw. (Tenn.) 440. 188 ABSTRACTS OP TITLE. [§ 181 and, so faithfully has this been followed, it is not uncommon to meet with deeds containing as many as seven or even ten operative virords of grant. The effect of these words is a question of con- struction to be governed and decided by the law of the State in which the land is situate,^^ and no general rule can be formulated for the guidance of the practitioner, the laws of the different States being widely divergent. The words of grant of most frequent occurrence are "grant,^"' bargain and sell." In many of the States, when not limited by express words, they are construed as covenants,^* while in other States such a conveyance, without more, would be a mere quit-claim and inoperative to convey an after-acquired title,*' or warrant that conveyed.^" Where the deed is without covenants, or contains only special or limited covenants, the words of grant should be set forth immediately preceding the description. When the usual covenants of seizin, warranty, etc., appear in the deed they are immaterial, and may be omitted. In such eases the word "convey" will be sufficient to indicate the grant. ^1 Technical words of grant possess little of their former efficacy, though it is still true that to constitute a conveyance there must be sufficient words showing an intention to grant an estate,*^ yet every part of the instrument may be resorted to for the purpose of ascertaining its true meaning and the intention of the parties,^' and, generally, any writing that sufficiently identifies the parties, describes the land, acknowledges a sale of vendor's rights for a valuable consideration, and is signed, sealed and delivered, is a good deed of bargain and sale,^* and, if complete in other respects, has been held to constitute a valid conveyance even though all words of grant are omitted.^* Catlia T. Ware, 9 Mass. 218; Ham- in the absence of express covenants, melman v. Mounto, 87 Ind. 178; to constitute a warranty during the Brown v. Manter, 21 N. H. 528. life of the grantor. Dow v. Lewis, 4 66McGoon V. Scales, 9 Wall. 23; Gray (Mass.), 468. Clark V. Graham, 6 Wheat. 577. 61 See precedent of abstract of 57 The word "convey" is equiv- warranty deed in § 217. alent to "grant." Lambert v. Smith, 62 Mc Kinney v. Settles, 31 Mo. 541; 9 Or. 185. Brewton v. Watson, 67 Ala. 121; SSBrodie v. Watkins, 31 Ark. 319; Brown v. Manter, 21 N. H. 628. Hawk V. McCfullough, 21 111. 220. 63 Saunders v. Hanes, 44 N. Y. 353 ; This construction is usually made un- Callins v. Lavalle, 44 Vt. 230; Amer- der peculiar statutory provisions. ican Emigrant Co. v. Clark, 62 Iowa, 59 Butcher v. Rogers, 60 Mo. 138; 182. Nicholson v. Caress, 45 Ind. 479. 64 Chiles v. Conley 's Heirs, 2 Dana 60Taggart v. Risley, 4 Oreg. 235. (Ky.), 21. The word "give" was formerly held, 65 Bridge v. Wellington, 1 Mass. § 182] FORMAL PARTS OF DEEDS. 189 § 182. Words of Inheritance and Limitation. Closely allied to the foregoing are the words of inheritance and limitation, once of the very essence of the deed,^^ but now, by reason of sweeping stat- utory changes, comparatively without value or legal effect. Though invariably inserted by the conveyancer, words of inheritance are no longer necessary to create or convey a fee, and, as a rule, every grant of lands will pass all the estate or interest of the grantor, unless a different interest shall appear by express terms or neces- sary implication,^'' the question of the estate transferred being determined rather by the end sought to be attained by the grantor, than by the language employed.^* The usual and ordinary words for conveying an estate in fee simple are "heirs," or "heirs and assigns forever." The rule in Shelly 's case, with its refinements and subtil ties, is not recognized in some States, and has but a partial effect in others, although its influence is still manifest in nearly every State. As a wide difference of interpretation is displayed in the decided cases, it is difficult to prescribe a definition of the rule that shall be sufSciently certain. Generally, if an estate of freehold be lim- ited to the ancestor for life, and the remainder to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body, he takes a fee tail ; if to his heirs generally, a fee simple. The words "heirs" or "heirs of the body" in such case, are words of limitation and not of purchase.^^ The rule in Shejly's case is, however, at most a technical rule of construction, and must, as a general proposition, give way to the clear intent of the donor when that intention can be ascertained from the instrument in which the words supposed to be of limitation are used.'" Whenever the words of inheritance depart from the usual form for granting a fee, and seek to create a vested or contingent re- 219. This ease has been severely 69 Butler v. Huestis, 68 111. 594; eriticised in subsequent decisions and consult Foster v. Shreve, 6 Bush frequently rejected. (Ky.), 519; Bradford v. Howell, 42 66 Jackson v. Meyers, 3 John. 388. Ala. 422; Forrest v. Jackson, 56 N. 67Merritt v. Disney, 48 Md. 344; H. 357; Smith v. Block, 29 Ohio St. Beecher v. Hicks, 7 Lea (Tenn.) 207; 488; King v. Rea, 56 Ind. 1. En- Eiseley v. Spooner, 23 Neb. 470. tails, when permitted, are limited to 68 Hawkins v. Champion, 36 Md. 83 ; the first degree only, that is, the first Kirk V. Burkholtz, 3 Tenn. Ch. 425; grantee takes an estate for life while Lehndorf v. Cope, 122 111. 317. This the remainder passes in fee to the is now a general statutory rule. In second taker. See, Butler v. Huestis, a few States, however, the common- 68 111. 594. law rule still obtains and words of in- 70 Belslay v. Engel, 107 lU. 182. heritance are necessary to pass a fee. 190 ABSTRACTS OF TITLE. [§ 182 mainder in some person other than the grantee named, the only safe method for the examiner is to set forth the granting clause verbatim, and as a further precaution the habendum may also be shown. To create an estate tail or remainder, there must be the use of technical words designating a class of heirs to take in suc- cession, or language disclosing a clear intent to that eifect.''* The word "children," though frequently used, is usually a word of purchase, requiring strong language to change it into a word of limitation. In the preparation of abstracts these questions are too frequently lost sight of by the examiner, who fails to give to them and other seemingly minor details, the attention their impor- tance deserves. §183. Description of Property. After the parties to the con- veyance, the description of the thing or subject-matter conveyed is the great essential,'^ but for convenience, and following the orderly parts of the deed, it should appear immediately after the words of conveyance. In abstracting a deed it is customary to condense the introductory sentences of the description, which allude generally to the situs of the land in a given county and State, but from this point, or after the words "to wit," the entire description, as found in the deed, should be set forth verbatim.'* It is the custom, also, of many examiners, to refer for descriptions to the caption of the abstract, or to other instruments in the chain con- taining the same or substantially the same description; a practice as slovenly as it _is dangerous, and one strongly to be reprehended. Both in preparing the abstract and in passing upon the title, the description should in every case be compared with the caption, and any deviation therefrom, either in form or substance, carefully noted. § 184. Description — Sufficiency. Every deed of conveyance, in order to transfer title, must, either in terms or by reference or other designation, give such description of the subject-matter in- tended to be conveyed as will be sufficient to identify the same with reasonable certainty.'* If the description is too indefinite to convey anything, or too vague to permit of location, then the deed lacks one of th« essential elements of a conveyance.'* It is not es- TlMiddleton v. Smith, 1 Coldw. 74 Berry v. Derwart, 55 Md. 66; (Tenn.) 144. Long v. Wagoner, 47 Mo. 178; Barker 72 Whitaker v. MUler, 83 111. 381. v. %. Co., 125 N. 0. 596. 73 For a precedent of description 76 Barker v. Ry. Co., 125 N. C. see § 217. 596. § 186] FORMAL PARTS OF DEEDS. 191 sential, however, that the deed should on its face ascertain the limits or quantity of the particular tract conveyed. It will be sufS- cient if it refers to certain known objects or things, and provides definite means by which the land may be readily ascertained and known ; ""^ where words of general description only are used, oral evidence may be resorted to for the purpose of ascertaining the particular subject-matter to which they apply.''' Any description by which the identity of the property intended to be conveyed is established, will be sufficient,'''* and a description not sufficiently certain in itself may be made so by reference to other deeds in which it is sufficient.'" §185. Description — Identification. Defects of description are sometimes cured by the acts of the parties after the conveyance has been made. As, where the land intended to be conveyed is not identified in the deed, the parties may afterward survey or stake out a tract, and, if the grantee takes possession of such tract, this, it is said, ascertains the grant and gives effect to the deed.*" But such a proceeding, as a rule, can only be shown by matter in pais, and hence does not affect the conclusions of the examiner deduced from an inspection of the record. Unless the parties have recorded the survey or minutes of location the examiner is under no duty to note the fact, even though he may be cognizant of it, and the opinion of counsel should conform to the facts of record only. If parties desire to fix and perpetuate their rights in a specific parcel of land recourse should be had to the courts or to the public rec- ords. § 186. Description — Construction. It is a rule of construction as to the description of the land found in the premises of a deed, that the least certain and material parts must give way to the more certain and material. Quantity is never allowed to control courses and distances,*^ and courses and distances must yield to fixed mon- 76 Coats V. Taft, 12 Wis. 388; held that such deed was not void for Dwight V. Packard, 49 Mieh. 614. uncertainty if the parties, after the 77 Coleman v. Improvement Co., 94 conveyance, marked out a parcel of N. T. 229. land of which the grantee took pos- 78 Smith v. Crawford, 81 111. 296 ; session with the consent of the grant- Allen V. Bates, 6 Pick. 460. or. Simpson v. Blaisdell, 85 Me. 199 ; 79Eu8seU v. Brown, 41 111. 184; and see, Herrick v. Morrill, 37 Minn. Credle v. Hays, 88 N. C. 321. 250. 80 Thus, where a deed was made for 81 Bishop v. Morgan, 82 lU. 352 ; "one-half acre of land near the Saunders v. Sehmaelzle, 49 Cal. 59. wharf," describing the wharf, it was 192 ABSTBACTS OP TITLE. [§ 186 uments and natural objects also referred to therein.** But where the monuments, if once existing, are gone, and the place where they originally stood cannot be ascertained, the courses and dis- tances, when explicit, must govern ; *" and where the boundaries are doubtful, quantity often becomes a controlling consideration.** Nor will the rule that monuments, natural or artificial, rather than courses and distances, control in the construction of a convey- ance, be enforced when the instrument would thereby be defeated, and when the rejection of a call for a monument would reconcile other parts of the description and leave enough to identify the land.** Where a deed calls for a natural object and the line gives out before reaching it, the line must be extended to the natural object, and the distance disregarded ; *^ but where no monuments are referred to and none are intended to be afterward designated, the distance stated in the grant must govern the location.*'' An erroneous description of land by numbers will not control other descriptive particulars which indicate the land with certainty.** Where lines are run to fix the boundaries of a tract, with special reference to the points of the compass, they will generally be con- strued according to their technical significance. Thus, a line run- ning "northerly" will be construed to mean due north, and so of the other cardinal points. These terms may be controlled or qual- ified by other words of description used in connection, but in case there is nothing to suggest a different construction they must be given their technical meaning. *' Where, as is often the case, the conveyancer, from an over anx- iety to identify the property, makes two descriptions, the one, as it were, superadded to the other, the one description being com- plete and sufficient in itself, the other incorrect, the incorrect de- scription, or feature, or circumstances, may be rejected as sur- plusage, and the complete and correct description allowed to stand alone.^" This is a rule of law, which counsel may employ in passing the title, but the abstract should show both descriptions. saDupont V. Davis, 30 Wis. 170; 88 BratdShaw v. Bfadbury, 64 Mo. Sanders v. Bldridge, 46 Iowa, 34; 334; Montgomery v. Johnson, 31 Ark. Cunningham v. Curtis, 57 N. H. 157. 62. 83 Drew V. Smith, 46 N. Y. 204; 89 Fratt v. Woodward, 32 Gal. 220. Clark V. Wethy, 19 Wend. 320. 90Kruse v. Wilson, 79 lU. 233; 84Winans v. Cheny, 55 Oal. 567. Myer v. Ladd, 26 111. 415; Wade v. 86 White V. Luning, 93 U. S. (3 Deray, 50 Cal. 376; Credle v. Hays, Otto) 515. 88 N. C. 321; Bray v. Adams, 114 86 Strickland v. Draughan, 88 N. Mo. 486. C. 315. 87]Sregbauer v. Smith, 44 N. J. L. 672. § 188] FORMAL PARTS OP DEEDS. 193 It must be remembered, however, that notwithstanding the ut- most liberality is allowed in the construction of descriptions, so as, if possible, to effectuate the intention of the parties, nothing passes by a deed except what is described in it, whatever the intention of the parties may have been, and extrinsic evidence is inadmissible to make the deed operate upon land not embraced in the descriptive words.'^ § 187. Special Recitals. Immediately following the description are usually found the special recitals, reservations, exceptions, con- ditions, etc., though in forms specially prepared they may also be found in that part of the deed technically known as the reddendum and to insure certainty all of the instrument from the habendum to the testimonium clause should be carefully read by the examiner when compiling the abstract. All special matter, including recitals, references, exceptions, reservations, conditions, limitations, etc., should be set forth fully in an orderly manner and, whenever prac- ticable, in the identical language of the deed and verified by quo- tation marks. When not so treated, or where slight condensation may be advantageously employed, the matter should be preceded by a parenthetical statement, to indicate that what follows is a transcription and not an observation by the examiner, thus: "Said grantor (it is stated) agrees to," etc. Eecitals in deeds bind the parties thereto, and those claiming un- der them,'* and a grantee is chargeable with notice of facts recited in a deed which constitutes a necessary part of his chain of title,'* but such recitals are not evidence against one who holds title em- anating from an independent source.'* § 188. The Habendum. It is rarely that the attention of either examiner or counsel is called to the habendum of a deed, which, unless declaring a trust,-or defining the limitation of an estate, may be passed without notice in the abstract. Though formerly, like many other technical features, of great importance, it has now degenerated into a mere form,'* and in the statutory conveyances 81 Coleman v. Improvement Co., 94 v. Morehouse, 22 111. 603; B. E. Co. N. Y. 229. V. Kennedy, 70 111. 350. 92 Fisk V. Flores, 43 Tex. 340 ; La- 94 Lamar v. Turner, 48 Ga. 329 ; mar v. Turner, 48 Ga. 329. Kerfoot v. Cronin, 105 111. 609. 98Pringle v. Dunn, 37 Wis. 449; 95 4 Kent Com. 468; 4 Blk. Com. Acer V. Wescott, 46 N. Y. 348; Bryne 298. Warvelle Abstracts — 13 194 ABSTRACTS OP TITLE. [§ 188 in use in many of the States is entirely omitted. In general the habendum refers to the premises and declares what estate the grantee shall hold. It may sometimes enlarge or diminish the grant, when showing a clear intention so to do,*^ but cannot perform the office of divesting the estate already vested by the premises, and is void if repugnant thereto.^'' Where the deed purports to create a vested or contingent remainder, or conveys property in trust, the habendum often becomes important, and where no estate is mentioned in the granting clause it becomes efficient to declare the intention and rebut any implication which would otherwise arise from the omission. In such cases the material clauses of the habendum should be shown in the abstract. § 189. Exceptions and Reservations. Everything that re- strains, qualifies, reserves or subtracts from the grant or thing granted, should be shown on the abstract with minuteness of detail, and to that end it is desirable that everything in the nature of an exception or reservation be copied verbatim. Both a reservation and an exception must be a part, or arise out of that which is granted in the deed. The diiference is that an exception is some- thing already existing which is taken back or out of the estate granted, while a reservation is something newlj' created and issu- ing out of what is granted.®* Thus, an exception is always a part of the thing granted, and of a thing in being. ®^ A reservation is of a thing not in being, but is newly created out of the land or property granted.^ The usual operative words to create an exception are, "saving and excepting," etc., but the terms indicative of either method are often used indiscriminately and frequently in conjunction, as "ex- cepting and reserving," etc., and the difference between the two is so obscure in many cases that it has not been observed.^ In all cases the operative words should be shown. Although there is a technical distinction between the terms, yet where "reserving" is used with evident intent to create an ex- ception, effect should be given in that sense.* A reservation in a deed will never operate to give title to a stranger, though it may, 98 Corbin v. Healy, 20 Pick. 514. i Gay v. Walker, 36 Me. 54. See, 97 Biggin V. Love, 72 111. 553; Hali- Warvelle, Real Property, 256. fax T. Stark, 34 Vt. 243; EoWnson V. 2Wiuthrop v. Fairbanks ,■41 Me. Payne, 58 Miss. 690. 307. 98 Adams v. Morse, 51 Me. 497; 3 Sloan v. Lawrence Purnaee Co., Kister v. Eeeser, 98 Pa. St. 1. 29 Ohio St. 568. 99Winthrop v. Fairbanks, 41 Me. 307. § 190] FORMAL PARTS OF DEEDS. 195 when intended by the parties as an exception, afford notice to the grantee of adverse claims in or to the thing excepted or reserved.* A restriction may take effect as a reservation, if it does not neces- sarily deprive the grantee of the essential benefits of the grant.^ Both an exception and a reservation may precede or follow the grant or may follow the habendum, in which latter case they should be alluded to in the granting clause. In either case so much thereof should be copied as may be necessary to show their true character. Where an exception follows the grant, then. after the description insert the exception in the language of the deed. Thus : * * * Sccrving and excepting (it is stated) the nortJi ten acres thereof, heretofore conveyed to the Hillsboro Country Club. A reservation should be treated in much the same way. ■ Thus : * * * Bui reserving unto the said party of the first part, his heirs and assigns, at all times hereafter, full right of ingress and egress over the north twenty feet of the land hereby conveyed for all purposes connected with the use and occupation of said first party's other lamd adjoining. It would seem to be a disputed question as to whether the word "heirs" is necessary to create a reservation in fee. One line of eases considers the word essential,^ while the contrary view has been adopted in some States where by statute words of inheritance are no longer necessary in the conveyance of a fee.'' The same certainty of description is required in an exception out of a grant as in the grant itself, as where a deed excepts out of the conveyance one acre of land, and there is nothing in the ex- ception to locate it upon any particular part of the tract, the ex- ception is void for uncertainty, and the grantee takes the entire tract.* Reservations and exceptions, when expressed in a doubtful manner, are to be construed most strongly against the grantor,' yet if the intention of the parties can be fairly ascertained from the instrument, such intention will govern in its construction.^" § 190. Conditions and Restrictions. Analogous to the excep- tions and reservations of a deed are the conditions qualifying the 4 West Point Iron Co. v. Eeymert, TKannuller v. Krotz, 18 Iowa, 359. 45 N. T. 703. 8 Mooney v. Cooledge, 30 Ark. 640. 6 Gay v. Walker, 36 Me. 54. SWyman v. Farrar, 35 Me. 64; 6 Ashcoft V. Ry. Co., 126 Mass. 196; Dnryea v. New York, 62 N. T. 592. Keeler v. Wood, 30 Vt. 242. 10 Wiley v. Sirdorus, 41 Iowa, 224. 196 ABSTRACTS OF TITLE. [§ 190 grant and the limitations or restrictions of its use, both of which demand the closest attention on the part of examiner and counsel. As in the ease of reservations, the conditional or restrictive clauses should be copied word for word, the abstract showing them to be literal quotations. Conditions frequently partake of. the nature of the consideration for the conveyance, and declare its true motive, and, when such is the ease, it becomes dpubly important that they be correctly shown. Conditions are divided into precedent and siibsequent, the for- mer being something which must be punctually performed before the estate can vest, and deeds containing them expressly declare that the grant is i^pon such condition. A condition subsequent indicates something to be performed after the estate vests, the continuance of such estate depending upon its performance. The character of conditions, precedent or subsequent, depends upon the intention of the parties, as shown by a proper construction of the whole instrument, not upon the precise or technical words used.*^ A deed upon condition subsequent conveys the fee with all its qualities of transmission. The condition has no effect to limit the title, until it becomes operative to defeat it.^^ The law does not favor forfeitures,^^ and conditions in avoidance of an estate are strictly construed ; no language will be construed : into such a condition contrary to the manifest intent of the parties, nor when any other reasonable construction can be given to it.^* Conditions of this kind will not bind the heirs or assigns unless they are expressly mentioned,^* nor will a conditional grant revert on breach, there being no clause providing for forfeiture or rercntry,** and until defeated by an actual entry made for the purpose of claim- ing a forfeiture, by some one having the right to do so, the estate continues in the grantees.^'' Conditional grants, though sometimes running to individuals, are more frequently found in dedicatory conveyances, or in deeds to religious, charitable or educational in- stitutions. Eestrictions on the use of property conveyed are of more fre- quent occurrence, but, unless they are also conditions subsequent, do not work a forfeiture in their violation. They consist usually llEogan V. Walker, 1 Wis. 527; IB Page v. Palmer, 48 N. H. 385. Sheppard v. Thomas, 26 Ark. 617. This is the general rule, but local 12 Shattuek v, Hastings, 99 Mass. statutes may qualify or vary it. 23. 16 Packard v. Ames, 82 Mass. 327. 13Voris V. Eenshaw, 49 111. 425; IV Osgood v. Abbott, 58 Me. 73; Hoyt V. Kimball, 49 N. H. 322. Guild v. Richards, 82 Mass. 309. 14Wier V. Simmons, 55 Wis. 637. § 190] FORMAL PARTS OP DEEDS. 197 of building regulations, sanitary measures and matters involv- ing the good morals of community, as prohibition of the sale of intoxicating liquors on the premises, etc. They are designed or- dinarily to prevent such use of the premises by the grantee and those claiming under him, as might tend to diminish the value of the residue of the land belonging to the grantor or impair its eligibility for particular purposes, and that such a design is a legitimate one, and may be carried out consistently with the rules of law by reasonable and proper restrictions, can not be doubted. Every owner of property has the right to so deal with it, as to restrain its use by his ^antee within such limits as to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment of the land which he retains.^* Such restrictions are recognized and upheld by the courts, and viola- tions thereof will be restrained by injunction.^^ A condition, whether precedent or subsequent, is not binding after the party imposing it has rendered its performance impos- sible or unnecessary.^" The restrictive clauses of a deed are usually written after the habendum as a sort of continuation. In such cases the formal phrasing of the habendum may be omitted but the condition or restriction should be copied in full. Thus : Provided, however (it is statted) and this deed is made and ac- cepted subject to the following restriction, that no building shall at any time 6e erected on the sa/id land above granted and de- scribed, within twenty-five feet of the East line of Jefferson street, as the same is now platted and laid out. 18 The onlj restriction on this (Mass.), 359; Atlantic Dock Co. v. right is that it shall be exercised Leavitt, 54 N. Y. 35; "Watrous v. Al- reasonably, with due regard to public len, 57 Mich. 362; and see Warvelle poHoy, and without creating any un- on Vendors, § 438 et seq. lawful restraint of trade. Nor does 19 Dorr v. Harrahan, 101 Mass. there seem to be any doubt that in 531; Oowell v. Col. Springs Co., 100 whatever language such a restraint is U. S. 55; Clark v. Martin, 49 Pa. St. couched, whether in the technical form 289. Where restrictions upon build- of a condition or covenant, or of a ing are inserted in a deed as a part of reservation or exception, or merely a scheme for a plan of improvement, by words which give to the accept- such restrictions, as a rule, though ance of the deed by the grantee the spoken of as conditions, are not to be force and effect of a parol agreement; deemed technical conditions whose it is binding as between the immedi- breach involves forfeiture. Ayling v. ate parties thereto, and may be en- Kramer, 133 Mass. 12. forced by or against their respective 20 Jones v. R. R. Co., 14 W. Va. assigns. Whitney v. Ry. Co., 11 Gray 514. 198 ABSTRACTS OF TITLE. [§ 190 But sometimes the restriction will be found immediately after the grantor's covenants. Indeed, this seems to have been the cus- tom of the old conveyancers. When such is the case the habendum usually has an allusion to the restriction and this should appear in the abstract. The following is a suggestion: To have and to hold * * * subject, however, to the obliga- tions, duties and restrictions hereinafter set forth and imposed upon the said party of the second part, his heirs and assigns. Then would follow any intervening matter necessary to be shown and after this the restriction, in the language of the deed, should be inserted. § 191. Covenants. The covenants of a deed add nothing to its efficiency as a means of conveyance, and a quitclaim deed will as effectually pass the title and covenants running with the land as a deed of bargain and sale, if no words restrict its meaning.*^ The covenant clause usually immediately precedes the testimonium, and when consisting only of the conventional assurance of seizin, right to convey, freedom from incumbrance, quiet enjoyment and warranty, may be passed with simple notice, or if the deed is in other respects regular, and is described in the abstract as a "War- ranty Deed," there seems no good reason why any further men- tion should be made, particularly if the client knows such to be the examiner's custom. There is no uniform rule regarding their insertion, and usually they are omitted. Special, or unusual cov- enants, or such as seek to limit the grantor's liability, should be noticed at such length as their importance seems to demand, and if necessary for a proper understanding, should be literally trans- cribed. Covenants are either express or implied. Implied covenants must be consistent with, and not contrary to, the express cove- nants,^^ and where a deed contains both, the latter qualifies and restrains the former. ^^ Covenants are also classified as personal and real, or those which run with the land, though some confu- sion exists as to the division between them.^* No special words are needed to raise a covenant,^* and whatever shows the intent 21 Morgan v. Clayton, 61 111. 35; 22 Gates v. Caldwell, 7 Mass. 68. Eg we V. Becker, 30 Ind. 154; Pin- 23 Kent v. Welch, 7 Johns. 258; gree v. Watkins, 15 Vt. 479; White Sumner v. Williams, 8 Mass. 201. V. Whitney, 3 Met. 81 ; Hunt v. Ami- 24 2 Bou. Law Diet. 327. don, 4 Hill, 345. 25 Newcomb v. Presbrey, 8 Met. 406. § 191] FORMAL PARTS OF DEEDS. 199 of the parties to bind themselves to the performance of a stipula- tion may be deemed a covenant without regard to the form of expression.** The ancient common law warranty has been superseded by per- sonal covenants, and never had any practical existence in this country.2'' The weight of American authority holds that the cov- enants of seizin, good right to convey and freedom from incum- brances, are in presenti; that they do not run with the land, and if broken at all, are broken at the instant of their creation.** The claim for damages thereby becomes personal in its nature to the grantee, and is not transferred by a conveyance to a subsequent grantee.** Several of the States, following the English rule, per- mit an action by a remote grantee in his own name where the substantial breach of the covenant occurs after the assignment, and the whole actual damages are sustained by the assignee.*" "Where privity of estate exists between the parties, and the cov- enant is one about or affecting the land granted, and tends directly and necessarily to enhance its value, or render it more beneficial to those by whom it is owned, the covenant is said to be incident to the land, and may be enforced by and is binding upon, those in whom the title subsequently vests.*^ It is a general principle that covenants which run with the land pass only with the legal title thereto.** The covenant of warranty extends only to the right, title and interest in the lands bargained and sold by the vendor. The covenants can not enlarge the premises.** Where a covenant is implied from statutory words, the very words of the statute must be used to raise it.** In a conveyance in form a "Warranty Deed," but omitting any of the customary covenants, it is well to note the omission, and in such cases, where by statute covenants are implied from specific words of grant, the operative words of conveyance as found in the deed should be in serted. As heretofore shown the words "grant, bargain and sell," in some states, are given effect as covenants. Where these words are 26 Taylor v. Preston, 79 Pa. St. 436. SOEiehard v. Bent, 59 111. 38; Seho- 27 Jones V. Tranklyn, 30 Ark. 631. field v. Homestead Co., 32 Iowa, 317 ; 28 Tone V. Wilson, 81 111. 529; Eul- Cole v. Kimball, 52 Vt. 639. ler V. Jillett, 9 Biss. (C. Ct.) 296. 31 Wooliscroft v. Norton, 15 Wis. 29 Salmon v. Vallejo, 41 Cal. 481; 198; Wheeler v. Sehad, 7 Nev. 204. Dale V. Shively, 8 Kan. 276; Pills- 32 Wright v. Sperry, 21 Wis. 331. bury V. Mitchell, 5 Wis. 17; Moisten 33 Lamb v. Wakefield, 1 Sawyer, V. Hobbs, 2 Mass. 433; Greenby v. 251. Kellog, 2 Johns. 2. 84 Vipond v. Hurlbut, 22 111. 226. 200 ABSTRACTS OF TITLE. [§ 191 employed in the grant and the deed is without express covenants the fact may be shown by a brief note. Thus : Deed contains no covenants other than those implied by the words of grant. §192. Execution. The execution of a deed technically com- ' prises the signing, sealing and delivery *^ and in some States the attestation of witnesses as well, but the attention of examiner and counsel need only be directed to the two former, and, where re- quired by law, the attestation. The laws of the various , States on the subject of exfecution, though preserving a general harmony, are by no means uniform nor have they always been the same during the governmental existence. The examiner should be fully posted on all the changes of the law in respect to the execution of deeds in his own State, and carefully observe and note in the ab- stract any defects or errors, in signatures, seals or attestation, and any non-compliance with statutory requirements. Extra vigi- lance will be required in the cases of deeds by married women, conveyances by delegated authority and by corporations. §193. The Signature. Sealing, not signing, was the sine qua non to the validity of the common law deed, and a signature was not considered necessary.*^ Sealing is now of little moment, save as a technical requirement, while iu several States it is entirely dispensed with, and the deed derives its efficacy from the signa- ture. An unsigned deed, though duly attested, acknowledged and delivered, is a nullity.*'' 36 Thorp V. Keokuk Coal Co., 48 ing the sign of the cross. By the stat- N. Y. 253. ute of 29 Charles II, for the preyen- 36 Coke, Lit. L. 1, C. 5, § 40. This tion of frauds and perjuries, all trans- was doubtless occasioned by reason fers of land were requii'ed to be put of the very general inability of the iu writing and signed by the parties mass of the people to read or write; making same, and this statute is see 1 Eeeves' Hist. Eng. Law, 184, the foundation of the American laws note. Under the Saxon rule it would upon the subject. In Blackstone's seem that signing was in general use time signing does not appear to have provided) the parties were able to been essential to validity, although he write, and whether they could write says (1 Com, 305): "It is said to or not it was customary to affix the be requisite that the party, whoso sign of the cross; but on the Norman deed it is, should seal, and now in conquest waxen seals, usually with most cases, I apprehend, should sign some specific device, were introduced it also." and took the place of the Saxon 37<}oodmau v. Eandell, 44 Conn, method of writing the name and mak- 325; MiUer v. Ruble, 107 Pa. St. 395; § 194] FORMAL PABTS OF DEEDS. 201 The law presumes that in executing instruments, parties use their real names, and does not presume them to have different names. So, where the record of a deed purporting to have been signed by Harmon S. was acknowledged by Hiram 8., it was held inadmissible to prove a conveyance by Hiram,'* as only the signer can acknowledge as grantor. It is doubtful, however, whether this can be received as the accepted doctrine, the volume of au- thority inclining to the contrary, and generally if the grantor's true name is recited in the body of the dped and he also acknowl- edges it by his true name, the fact that he signs it by a wrong name does not invalidate the conveyance. '' All variances of this nature, being of the essence of the conveyance, require full no- tice. A deed signed with a mark, if otherwise regular, may be treated as properly executed, and such is also the custom of ex- aminers where the signature is in a foreign language. Where an instrument is found with a signature af&xed to it, if the deed is properly acknowledged, the presumption is that the party sign- ing it knew its contents, and there is no distinction in this respect between those who can and those who can not write.*" § 194, The Seal. In most of the States the formality of a seal is required in the execution of deeds for the conveyance of land, while in some its use has been dispensed with by statute. The common law seal has been defined as an impression upon wax or wafer or some other tenacious substance capable of being im- pressed,*^ but as the record would fail to show the method of seal- Hilton V. Asher, 103 Ky. 730. It 38 Boothroyd v. Eugle, 23 Mich. 19. would seem as though the statement 89Middleton v. Kndla, 25 Cal. 76; of the text was not only in conso- Tustin v. Faught, 23 Cal. 237; Zahnn nance with law but with reason as v. Haller, 71 Ind. 136; Houx v. Bat- well, yet late decisions in some local- teen, 68 Mo. 84. ities would indicate that a deed is lODoran v. Mullen, 78 111. 342; not necessarily void because the Young v. Duvall, 109 U. S. 573. grantor's name is not subscribed to 41 Warren v. Lynch, 5 Johns. (N. it, provided it is written in his own T.) 239. And a later decision held handwriting, and so placed in the that the seal of a corporation or of a body of the deed as to control the private individual impressed directly grant. The question then becomes one upon paper without the use of wax or of intent, and, it has been held, may other tenacious substance is a nuUity, be considered by a jury in connection although holding the contrary as to with other circumstances. See Saun- seals of courts and public officers. See ders v. Hackney, 10 Lea (Tenn.), Farmers' Bank v. Haight, 3 Hill (N, 194. See also the topic "Defective Y.), 493, Execution," in the succeeding chap- ter. 202 ABSTRACTS OF TITLE. [§ 194 ing, the examiner would still be at a loss to know if the deed had been properly sealed, were this rule still in effect. In a majority of the States where seals are still required, a scrawl has, by stat- ute, the force of a seal, whenever it appears from the body of the instrument, the scrawl itself, or the place where affixed, that such scrawl was intended for a seal.*^ Where a scrawl is allowed for a seal, the word "seal" at the end of the maker's signature, and referred to in the testimonium clause, creates a sealed instrument, the word "seal" is equivalent to a scrawl.** And, generally, an instrument will be treated as sealed, when the intent to affix a seal is clear.** It has been held that where the record was made at a time, and under a law, permitting the registration of only sealed instruments, and the instrument was in form a warranty deed, the conclusion attestation and certificate of acknowledgment, all speaking of it as under seal, it will be presumed that the orig- inal was sealed. And whether or not it was the legal duty of the recorder to indicate upon the record whether the instrument was sealed, his omission to do so wiU not overcome the presumption.*^ Usually, if the instrument is otherwise in form, it will at least be sufficient to convey an equitable title, and therefore, if recorded, will affect those interested with constructive notice of its contents as fully as if sealed.** If one of several grantors named in an instrument which pur- ports to be sealed by all of them, neglects to affix his seal thereto, in the absence of other evidence he will be deemed to have adopted the seal of some one of the other signers, and will be equally bound with them.*'' In compiling the abstract it is unnecessary to refer to the exe- cution, or any part thereof, if in aU respects regular and in con- formity to law ; only defects or omissions require notice, and these are best shown by a literal transcription. § 195. Attestation. Subscribing witnesses to a conveyance of land are not necessary at common law,*^ nor by statute in many 42 Hudson V. Poindexter, 42 Miss. 471; LeFrane v. Eichmoud, 5 Sawyer 304; Deininger v. McConnel, 41 111. (C. Ct.), 601. 229. This is a general statutory rule. 46 Grandin v. Hermandez, 29 Hun 43Groner v. Smith, 49 Mo. 318; (N. Y.), 399. Local statutes preserib- Lewis V. Overby, 28 Gratt. (Va.) 627. ing requisites for registration may 44 Burton v. LeKoy, 5 Sawyer, 510; vary this rule. McCarley v. Supervisors, 58 Miss. 749 ; 47 Yale v. Flanders, 4 Wis. 96; Nor- Plowery Mining Co. v. Bonanza Co., veil v. Walker, 9 W. Va. 447 ; Mackay 16 Nev. 302. v. Bloodgood, 9 Johns. (N. Y.) 285; 46 Starkweather v. Martin, 28 Mioh. Davis v. Burton, 4 111. 41. § 196] POBMAli PARTS OF DEEDS. 203 of the States; others require an attestation by one subscribing witness only, while in a majority it is necessary that the deed be executed in the presence of two witnesses, who shall subscribe their names to same as such. As the matter of attestation is purely statutory the effect of omission in this particular is to be decided solely by the application of local law. The usual and ordinary words of attestation are "signed, sealed and delivered in our presence," but the late statutory forms of conveyance have somewhat abbreviated this ancient form of ex- pression, and the words "in our presence," immediately follow- ing the testimonium clause, and followed by the signatures of wit- nesses, is a good and sufficient attestation. When required at all, attestation, is usually a prerequisite to registration, and any in- formality in this respect deprives the instrument of its legal ef- fect as constructive notice.*® "When properly attested no mention of the fact seems necessary in the abstract, while omissions or de- fects may be indicated by some simple statement ; as No subscribing witness shown of record. § 196. Acknowledgment. The statutes of all the States provide for a proof of execution of conveyances of land, by an acknowl- edgment of the deed before some officer, evidenced by his cer- tificate of authentication. Such acknowledgment, properly cer- tified, authorizes the production of the instrument in evidence without other or further proof of its execution, and, in some States, is a prerequisite to registration. The certificate of acknowledgment is no part of the convey- ance, and is not the act of either party to it,*"* but only evidence in regard to its execution and acknowledgment, and, like all other evidence, should be reasonably considered and eonstrued.^^ Be- ing statutory creations greater strictness is necessary in their construction, yet it is a well settled rul^, that a substantial com- pliance, with statutes prescribing the form and requisites of an official certificate of acknowledgment, or proof of deeds, is suf- ficient. It is the policy of the law to uphold such certificates 48 Woods Conv. 239; Black. Com. though the deed itself will still be 307; Dole t. Thurlow, 12 Met. (Mass.) valid and binding as between the par- 157. ties and its execution may be estab- 40 Parret v. Shaubhut, 5 Minn. 323 ; lished by common law evidence. Ho- Boss V. Worthington, 11 Minn. 441. gans v. Carruth, 18 Fla. 587. 60 An acknowledgment taken by a 51 Harrington v. Fish, 10 Mich. 415; grantee named in the deed is void, Gray v. TJlrich, 8 Kan. 112. 204 ABSTRACTS OP TITLE. [§ 196 whenever substance is found, and not to suffer conveyances, or proof of them, to be defeated by technical or Unsubstantial ob- jections, and in construing them resort may be had to the deed or instrument, to vrhich they are appended ; *^ yet nothing will be presumed in favor of an official certificate, which must state all the facts necessary to a valid official act.^* Of course, the certificate should be signed by the person mak- ing it. It is also customary for the officer to add a description of his office, as, "John Smith, Notary Public." But, while this is a usual and proper custom, it does not seem to be necessary where the body of the certificate describes him as a notary public and acting officially. In such case the omission of the name of his office after his signature will not have the effect of rendering the acknowledgment invalid.** The official acts of a notary should be authenticated by his seal,^^ particularly when a non-resident of the jurisdiction where the land is situate, and usually, in such eases, his certificate must also be accompanied by a certificate of magistracy and conformity made by some officer of competent authority. The seal is prima facie evidence that the person using it is a notary, duly commissioned,*® etc., and its absence should be briefly noted; thus: 1 No notarial (or official) seal shown of record. As a rule, a notarial certificate from another State without a seal or certificate of conformity will be invalid ; *'' and, generally, where the statute requires a notary to attach his seal to certificates 52 WeUs V. Atkinson, 24 Minn. 161; sea). In the absence of express legis- Tubbs V. Gatewood, 26 Ark. 128; Bar- latiou it need not contain his name, net V. Proskauer, 62 Ala. 486; Calu- for it is the seal, and not its compo- met Co. V. Russell, 68 111. 426. sition or character of which courts 63 Wetmore v. Laird, 5 Biss. 160. take judicial notice. The presumption 64 Lake Erie, etc., E. K. Co. v. is that a seal is the official seal of Whitham, 155 111. 514; Sumner t. the person it purports to be, and who Mitchell, 26 Pla. 179. subscribed the jurat. In He Phillips, 55 The requisites of a notarial seal 14 Nat. Bankr. Beg. (No. 5) 219. are determined by the law of the lo- 66 Brown v. Phil. Bk., 6 Serg. & B. cality from which the ofScer derives 484; Stephens v. Williams, 46 Iowa, his authority; or, if that be silent 540. on the subject, then by the rules of 67 Booth v. Cook, 20 111. 129; Texas the common law. It is defined as an Land Co. v. Williams, 51 Tex. 51. See impression on the paper directly, or also the local statutory provisions on on wax or wafer attached thereto, this subject, made by the ofScial as and for his § 196] FORMAL PARTS OP DEEDS. 205 of his official acts, a certificate unauthentieated by the impression of such seal is void.** The law does not usually, in' terms, impose upon the recorder the duty of transcribing the official seal of the officer taking the acknowledgment, and many recorders simply represent it by a scroll and the words "seal" or "notarial seal;"59 jj^^ whatever the form that may be employed to indicate the fact of sealing it should be observed by the examiner. It has been held, in several instances, that where there is a statement in the body of the cer- tificate, that the officer who made it, affixed his seal of office, a pre- sumption is raised that such was the fact, and that it is not neces- sary that the record copy should contain a fac simile of the seal, nor any indications thereof by scroll.®* But although a deed is defectively acknowledged, or even not acknowledged at all, it is good as between the parties and subse- quent purchasers with actual notice, and passes title equally with one duly certified. The certificate does not affect the force of the instrument.®^ Acknowledgment, however, is frequently a requisite for registration, and a deed must be legally recordable to make the record thereof constructive notice.®* The certificate should state the fact of acknowledgment, and should fix the identity of the party making same, these being the great essentials of every official authentication.®^ A certificate de- fective in either respect does not show a substantial compliance with the requirements of law, which provide that the grantor shall be known or his identity satisfactorily proved to the certifying officer.®* When regular, the certificate is noticed at the conclusion of the synopsis by a brief mention of the fact and date, as, 68 Welton v. Atkinson, 53 Neb. 60 Geary v. City of Kansas, 61 Mo. 674; Hewitt v. Morgan, 88 Iowa, 468; 378; Griffin v. Sheffield, 38 Miss. 339. De Graw v. King, 28 Minn. 118. But 61 Stevens v. Hampton, 46 Mo. 404; compare, Sonfield v. Thompson, 42 Gray v. Ulrioh, 8 Kan. 112; Dole v. Ark. 46. Thurlow, 12 Met. 157; Hoy v. Allen, 69 In Smith v. Dal, 13 Cal. 510, it 27 Iowa, 208. was held that it is not necessary that 62 Pringle v. Dunn, 37 Wis. 449; the seal should be copied upon the Bass v. Estill, 50 Miss. 300; Willard record and that it is enough if it ap- v. Cramer, 36 Iowa, 22. This is a pears from the record that the deed matter of statutory regulation. Con- copied was under seal. In Buckleu v. suit local statutes. Hasterlik, 155 111. 423, it was held 63 Bryan v. Ramirez, 8 Cal. 461; that the letters "L. S." following the Pendleton v. Button, 3 Conn. 406; name of a notary in a certificate of Short v. Conlee, 28 111. 219. acknowledgment; as shown in an ab- 64 StuUer v. Link, 2 Thomp. & C. stract of title, sufficiently indicate (N. Y.) 86; Callaway v. Fash, 50 Mo. that an official seal was attached to 420; Smith v. Garden, 28 Wis. 685. such certificate. 206 ABSTRACTS OF TITLE. [§ 196 Acknoiittedffed June 1, 1882. Slight defects or omissions may be shown in a descriptive way, as: Aclmowledged Jime 1, 1882, hy William Smith only, (or) In certificate of acknowledgment, said grantor's name is written "Wil- liam Smythe." Where two or more grantors acknowledge at different times, as will occasionally be the ease, the abstract should show these facts. Thus: Acknowledged by Alfred White and Bertha White, his wife, June 1, 1920, and by Charles Black, July 12, 1920. Defects of form, insufficient statement, or non-compliance with the statute, will frequently require an entire or partial transcrip- ' tion of the certificate. The acknowledgments of married women, corporations, and persons acting by delegated power, or in an official capacity, should be closely scrutinized, while in several of the States the deed is ineffectual to convey the homestead estate unless the statutory right is specially waived in the acknowledg- ment. Where the certificate omits any of the jurisdictional facts such omissions should be properly noted, as: Certificate of acknowledgment by James Thompson, Notary Pub- lic, Cook County, III., does not state that grantors were known to him,, or that they waived their homwstead rights. As between the immediate parties, the certificate may be im- peached for fraud, collusion, or imposition, but not otherwise.®^ As to purchasers for a valuable consideration without notice, it is conclusive as to all matters which it is the duty of the acknowl- edging officer to certify if he has jurisdiction,^® and where an officer is authorized to take acknowledgments, it will be presumed that they were taken within his jurisdiction.®'' 65 Fitzgerald v. Fitzgerald, 100 111. 67 People v. Snyder, 41 N. Y. 397; 385. Teutonia, etc., Co. v. Turrell, 19 Ind. 66 Williams v. Baker, 71 Pa. St. App. 469; Cox v. Stern, 170 111. 442. 476; Wharton on Evid. §1052; Bor- land T. Walrath, 33 Iowa, 130; How- land V. Blake, 97 U. S. (7 Otto) 624. § 197] FORMAL PARTS OF DEEDS. 207 The subject will be further considered, with practical examples, in treating of specific conveyances. §197. Delivery. No principle is better established by the entire current of modern authority than that the delivery of a deed is essential to a transfer of the title.®* It is the final act con- summating and confirming the conveyance, and without which all other formalities are ineffectual.*^ A deed, though duly executed and otherwise perfect, while remaining under the control of the grantor passes no title.''" To constitute a sufficient delivery, the deed must not only be delivered by the grantor, but must be accepted by the grantee,''^ though ordinarily a delivery of a deed implies an acceptance.''^ What constitutes a valid delivery or acceptance has been the sub- ject of a great diversity of opinion and a vast number of reported decisions, and is still, to some extent, an open and unsettled ques- tion to be determined by the particular facts of each case under the application of local law. These questions, however important in other respects, present but few features to the examiner, who looks only at the instruments as they appear upon the records, and passes on their sufficiency and legal effect from what is there shown. The attestation clause usually recites that the conveyance was "signed, sealed and delivered," etc., but this has been held, not sufficient, in itself, to establish a delivery.''* The recording of a deed not only affords ■prima facie evidence of its delivery,''* but, when the instrument is properly executed and 68 Mitchell V. Bartlett, 51 N. Y. 72 Davenport v. Whistler, 46 Iowa, 447; Stiles v. Brown, 16 Vt. 663; 287; Bundy v. Ophir Iron Co., 38 Fisher v. Beckwith, 30 Wis. 55; Oli- Ohio St. 413. This is the general rule, ver V. Stone, 24 Ga. 63. and rests upon the ground that a 69 Young V. Gailbeau, 3 Wall. 636; party is presumed to accept that which Whitaker v. Miller, 83 111. 381; is beneficial to him, yet the presump- Thateher v. St. Andrew's Church, 37 tion that a party will accept a deed Mich. 264. because it is beneficial to him will 70 Egery v. Woodard, 56 Me. 45 ; never be carried so far as to consider Fisher v. Hall, 41 N. Y. 416; Byars him as having accepted it. Bell v. V. Spencer, 101 111. 429. Though it Farmers' Bank, 11 Bush (Ky.), 34. seems that a deed onfee delivered is 73 Ruslin v. Shield, 11 r Henry M. Packham, bachelor, to The Illinois Central Railroad Company, its successors and assigns. A re-record of deed recorded Aug. 16, 1852, as Doc. 36,168, in Book 101, page 580, as appewrs by the Recorder's certificate appended to the record. Notwithstanding the recorder's certificate shows an instrument to be a re-record it should yet be carefully perused by the exam- is See K. S. Wis., Chap. 96; Gen. 20 Here follows the various mat- Stat. Minn., Chap. 43; Comp. Laws ters relating to registration, consid- Mioh. §2637; E. S. N. Y. §51; con- eration, the grant, etc., as shown in suit Martin v. Martin, 5 Bush (Ky.), previous examples. For brevity they 47; Durfee v. Pavitt, 14 Minn. 424; are omitted in the form above given Fisher v. Forbes, 22 Mich. 454; Foote and the same course will be puiBUed V. Bryant, 47 N. Y. 544. for the remainder of the work. § 239] CONVEYANCES BY INDIVIDUALS. 259 iner, as such re-recording is sometimes made for the purpose of correcting mistakes or inaccuracies in the original record. Where differences between the two appear the divergence should be noted, as per the following: A re-record of deed recorded, etc., [set out facts as in foregoing example] with the name of grcmtee written William J. Van Allen instead of WilUam T. Yam Allen. In case of duplicates, say : Apparently a duplicate of lease recorded Sept. 5, 1882, as Doc. 100,380, in Book 910, page 550 (and shown as No. 15 of this ex- amination) . A re-record, of course, carries its own internal evidence, while duplicates can only be classed as such by inference, yet where there appears an exact correspondence of parties, dates, subject-matter, as well as identity of language, it is almost impossible that the examiner shall err in classing it as a duplicate. When the originals appear in the same examination, re-records and duplicates should, whenever practicable, immediately follow such originals, in which event say : Apparently a duplicate of the foregoing instrument. When such original instruments do not form a portion of the examination, the re-records should not be inserted in the chain of title, but are best shown among the appendices, under the head of "Re-records," or "We also find." §239. Corrected Records. Not infrequently instruments are incorrectly transcribed by the recording officer and the error of transcription only becomes manifest after an abstract of the record has been made. In such cases a correction of the record is usually had and a mention of such corrected record becomes necessary in the abstract. It is, of course, permissible for the examiner to cor- rect the abstract to conform to the corrected record, but this means an erasure or mutilation of some kind, and if such correction is made after the abstract has left the examiner's hands a precedent of most doubtful character is established. In such event, perhaps, it is better to add a marginal note showing the correction than to tamper with what has already been shown. If this shall be thought 260 ABSTRACTS OF TITLE. [§ 239 desirable something like the following may be inserted after the erroneous item or placed opposite to it in the margin of the ab- stract : Note. — Since the date of this examination the record of the fore- going deed has been corrected by the Recorder so that the description of the land thereby conveyed now appears on such record as follows: [Here set out the corrected de- scription or other matter.] (Signed) Handy S Company, Chicago, June 1, 1903. Examiners. CHAPTER XVI SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES § 240. Marriage settlements — Ante- § 255. nuptial agreements. § 256. § 241. Conveyances to husband and wife. § 257. § 242. Conveyances between husband and wife. § 258. § 243. Conveyances by married § 259. women. §244. Effect of wife's conveyance. §260. § 245. Acknowledgment of deeds by § 261. married women. § 262. § 246. Release of dower. § 247. Joint tenancies and tenancies § 263. in common. § 264. § 248. Partition deeds. § 265. § 249. Partnership conveyances. § 266. § 250. Corporate conveyances. § 267. § 251. Statute of mortmain. § 268. § 252. Power of acquisition — ^TJser. § 253. Municipal corporations. § 269. § 254. Conveyances to corporations. Conveyances by corporations. Continued — Execution — Ac- knowledgment. Acts of of&cers in excess of charter powers. Eecord of seal. Conveyances by incorporated religious societies. Heirs at law. Post obit conveyances. Conveyances by delegated au- thority. Powers of attorney. Eevocations. Conveyances in trust. Eevocation of trust. Declarations of trust. Removal and substitution of trustees. Resignation — Refusal to act — Successor. §240. Marriage Settlements. It was at one time doubted whether any interest in either real or personal property could be set- tled to the exclusive use of a married woman without the interven- tion of trustees ; but for many years direct conveyances and settle- ments have been protected in equity alike against the marital rights of the husband, as against his creditors. Nor is it at all material whether the settlement be made by a stranger or by the husband himsejf, for it is now universally held that a settlement by a hus- band, on his wife, made by direct conveyance to her, will be en- forced in the same manner, and under the same circumstances, that it would be if made by a stranger, or to a trustee for her ex- elusive use.^ A marriage settlement usually conferred upon the wife only the IJones V. Clifton, 101 TJ. S. 225; Sims. V. Rickets, 35 Ind. 192; Put- nam V. Bicknell, 18 Wis. 351; Bur- dens V. Amperse, 14 Mich. 91; lingford v. Allen, 10 Pet. 594. Wal- 261 262 ABSTRACTS OP TITI/E. [§ 240 use of the property during her life, or for a definite period, with a remainder in fee to her issue or other persons designated; but marriage settlements proper have fallen into general disuse, while the general abolition of uses and trusts, and removal of former disabilities, have placed conveyances for this purpose upon the same plane and subject to the same rules as other conveyances between individuals. Conveyances, of whatever nature, intended as a settlement, should be shown quite fully, particularly the granting clause and habendum, together with any special matter by way of restriction, for the power of disposition may be restricted or enlarged by the terms of the settlement; and in construing these terms, the inten- tion of the grantor, as apparent upon a fair construction of the instrument, must govern.^ If the instrument contains any express or implied restrictions upon the power of disposition, either as to the mode of conveyance, or purpose for which it was conveyed, the wife can convey it in no other manner and for no other purpose, while if it contains no limitations or restrictions, express or im- plied, she may convey it in the same manner as her general estate.^ § 240a. Antenuptial Agreements. Contracts made by parties in contemplation of marriage, which determine the prospective rights of each in the property of the other, both during and after the marriage, are in common use and will sometimes be found in examinations of title. It is not customary, however, to place doc- uments of this kind on record, except as this may incidentally occur in the distribution of estates or when presented to a court for special action. Usually they provide for a specific allowance on the death of either of the parties after marriage and a surrender of all statu- tory rights which the surviving spouse would otherwise have in the estate of the deceased consort. Such contracts are not against public policy and, when free from fraud or imposition, are en- forcible and effective for the purpose indicated.* The agreement to marry is a sufficient consideration to support an antenuptial con- tract definitely fixing the rights of the parties and the release by each of all interest in the property of the other.^ 2 Young V. Young, 7 Coldw. 4Eieger v. Schaible, 81 Neb. 33, (Tenn.) 461; MeCSiesney v. Brown's 115 N. W. 560, 17 L. E. A. (N. S.) Heirs, 25 Gratt. (Va.) 393. 866; "West v. Walker, 77 Wis. 557, 3 Young V. Young, 7 Coldw. 46 N. W. 819; Paine v. Hollister, 139 (Tenn.) 461; MeClintio v. Ocheltree, Mass. 144, 29 N. E. 541; Kroll v. 4 W. Va. 249; Kimm v. Weippert, Kroll, 219 HI. 105, 76 N. E. 63. 46 Mo. 532. 6Ee Appleby's Estate, 100 Minn. § 241] SPECIAL CLASSES OF INDIVIDUAL CO>rVETANCES. 263 § 241. Conveyances to Husband and Wife. Under the common law, a grant to a man and his wife does not constitute them either joint tenants or tenants in common, they being in legal contem- plation but one person, and hence unable to take by moieties. Both would therefore be seized of the entirety ; neither could dispose of any part of the estate without the assent of the. other, and upon the death of either, the whole of the estate would remain in the survivor. This rule has not been materially changed by statute and is accepted in a majority of the States.* In such an estate there can be no partition, as neither spouse has any separate interest.' Between them there is but one owner, and that is neither the one nor the other, but both together. The common law permitted the husband, for his own benefit, during their joint lives, to use, pgssess and control the land and take all the profits thereof, and even to mortgage and convey an estate to continue during such joint lives, though he could make no dispo- sition of the land that would prejudice the right of the wife in case she survived him ; but later authorities hold that, from the peculiar nature of this estate, and from the legal relation of the parties, there must be unity of estate, unity of possession, unity of control, knd unity in conveying and incumbering it ; and it necessarily and logically results that it cannot be seized and sold upon execution for the separate debts of either.* In several of the States where the rule formerly prevailed, it has been held that the legal unity of husband and wife has been 408, 111 N. W. 305, 10 L. R. A. ciple of the community system is that (N. S.) 590; Eieger v. Sehaible, 81 whatever is acquired by the joint ef- Neb. 33. forts of husband and wife shall be 6 Arnold v. Arnold, 30 Ind. 305; their common property; that the Hemingway v. Scales,. 42 Miss. 1; matrimonial relation in respect to the "Washburn v. Burns, 34 N. J. Jj. 18; property acquired during its exist- MeCurdy v. Canning, 64 Pa. St. 39; ence is in fact a community, of which Fisher v. Provin, 25 Mich. 347; Gar- each spouse is a member, equally Con- ner V. Jones, 52 Mo. 68; Eobinson v. tributing by his or her industry to Eagle, 29 Ark. 202; Marburg v. Cole, its prosperity, and possessing an equal 49 Md. 402; Hulet v. Inlow, 57 Ind. right to succeed to the property after 412; Bertles v. Nunan, 92 N. Y. 152; dissolution in case of one surviving Meyers v. Eeed, 17 Ped. Eep. 40. the other. It extends to real as well Tin some of the Western States as personal property, and includes there is a peculiar system of property everything, acquired by either hus- rights growing out of the marital re- band or wife during the marriage, ex- lation, which, while it originated in cept that which is acquired by gift, the civil law has been borrowed di- devise or descent, rectly from the Spanish or Mexican 8 Chandler v. Cheney, 37 Ind. 391 ; law. This is known as the doctrine McDuff v. Beauchamp, 50 Miss. 531; of community. The underlying prin- Hulett v. Inlow, 57 Ind. 412. 264 ABSTRACTS OF TITLE. [§ 241 broken by the "married women's" acts, and that they take only as tenants in eommon.^ But estates which had vested prior to the acts in question are not affected, changed or modified by them. They remove no disabilities and confer no new rights in relation to such estates, which can only be conveyed or incumbered by the joint act of Both parties, while the survivor takes an absolute title to the whole in case of death, as heretofore.^" The legislation of the States, concerning the property rights of married women, has been very uniform, but the judicial construc- tion of similar statutes has been variant and contradictory. In some instances, as has been observed, courts have decided that stat- utes making joint grantees tenants in common, and giving to mar- ried women the same rights in property as though they were sole, have effectually destroyed the common law unity of husband and wife, and made them substantially separate persons for all pur- poses j but in a majority of the States the declared effect of these statutes has been confined to their express terms and they have been held to have no relation to or effect upon real estates conveyed to husband and wife jointly, and that, notwithstanding the stat- utes, they still take as tenants by the entirety.^^ The granting clause and habendum may serve in many instances to determine the nature of the estate granted, and it is advisable, in all cases where the deed purports to convey to husband and wife, to set out sufficient of both clauses to fully disclose the nature of the grant. As a general rule, no special language is required to create an estate of entirety and where the deed does not specify the manner in which they are to hold the land a tenancy by en- tirety wiU be presumed.^^ This conforms to the rule of the com- mon law which provides that in a conveyance to both spouses they will take as joint tenants or tenants in common only by express words, or words strongly implying such intention.^* Where the words of the grant clearly show that the intent was to create a tenancy in common effect will be given to it and they wiU' so hold.^* §242. Conveyances Between Husband and Wife. It is now well settled that a conveyance by a husband to his wife, without 9 Hoffman v. Stigera, 28 Iowa, 302; inson v. Eagle, 29 Ark. 203; MeDufE Clark V. Clark, 56 N. H. 105; Cooper v. Beauehamp, 50 Miss. 531. V. Cooper, 76 111. 57; Walthall v. 12 Stelz v. Shreck, 128 N. Y. 263 Goree, 36 Ala. 728. Phelps v. Simons, 159 Mass. 415 10 Harrer v. Wallner, 80 Til. 197. Morrison v. Seybold, 92 Ind. 298 llBertles v. Nunaa, 92 N. T. 152; Bramberry's Appeal, 156 Pa. St. 628. Bates V. Seeley, 46 Pa. St. 248; Rob- IS Baker v. Stewart, 40 Kan. 442.. § 243] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 265 the intervention of a third person or trustee, where suitable and meritorious, and not in fraud of creditors, will be upheld in equity,^* while in those States where the legal identity of husband and wife is no longer recognized, such conveyance may be good at law.^® Where the ancient doctrine still obtains, a deed from hus- band to wife, without the intervention of a trustee, is void at law ; nor can a court of equity regard it as effectual to transfer the legal title. But where such deed is founded upon a good and sufficient consideration,^' equity will enforce it according to the intention of the parties, where the same can be done without prejudice to the rights of others.^* A voluntary conveyance, that is, a conveyance without consid- eration, is a fraud upon the creditors of the husband, even in the absence of fraudulent intent, and this is especially true when the conveyance leaves the husband insolvent.^' As a rule, conveyances of this class call for close scrutiny, and frequently for inquiries in pais. Local statutes will go far to settle many questions, yet there are numerous cases, even under favorable statutes, where a knowl- edge of the circumstances and situation of the parties must result in the rejection of the title so offered, whether the conveyance be to the wife direct, or through an intermediary, for it is a funda- mental principle that the rights of creditors cannot be infringed or defeated in this manner.^" §243. Conveyances by Married Women. No class of convey- ances call for greater vigilance or closer scrutiny than those ex- ecuted by married women. Though at present a progressive and liberal spirit is manifest in the enactments of the various State legislatures, tending to remove entirely all restraints and impedi- ments from the free acquisition and alienation of real property by 14 Miner v. Brown, 133 N. T. 808; is made as a provision for her, this Thornbnrg v. Wiggins, 135 lid. 178. will be sufS.eient, for the duty of IB Hunt V. Johnson, 44 N. Y. 27 ; maintenance which a husband owes to Simmons v. Thomas, 48 Miss. 31; a wife is a good consideration for a Sherman v. Hogland, 54 Ind. 578; voluntary conveyance vesting title in Montz V. Hoffman, 85 lU. 553; Hook- her: Gill v. Wood, Adm'r, 81 lU. 64; ett V. Bailey, 86 lU. 76. Kellogg v. Hate, 108 111. 164. 16 Booker v. Worrill, 55 Ga. 332; iSHuber v. Huber, 10 Ohio, 371; Dickson v. Eandal, 19 Kan. 212; Brookbank v. Kernard, 41 Ind. 339; Barclay v. Plant, 50 Ala. 509 ; Kauf - Cardell v. Ryder, 35 Vt. 47. man v. Whitney, 50 Miss. 103. 19 Watson v. Eiskamire, 45 Iowa, 17 Not necessarily money: Wells 231. V. Wells, 35 Miss. 664; Wilder v. 20Aultman v. Obermeyer, 6 Neb. Brooks, 10 Minn. 50; Sims v. Rickets, 260. 35 Ind. 181. When the conveyance 266 ABSTRACTS OF TITLE. [§ 243 married women, yet such enactments are of very recent origin, and furnish no rule for tlie construction of conveyances made prior to the time at which they became effective. At common law, a mar- ried woman could make no disposition of her lands except by some matter of record, as a fine and recovery ; ^^ hence it follows that a conveyance of her separate property by a woman during her cover- ture would be void, unless specially authorized by statute.^^ Such statutes now exist, however, and confer upon married women a number of rights, which, being in derogation of common law prin- ciples, are strictly construed by the courts. In all cases a rigid and literal compliance with the statute is essential to vest title. The removal of the common law disabilities was not accomplished at any one time, but extends over a series of years, and an addi- tional burden is thrown on examiner and counsel by this fact. Different formalities were requisite at different periods, and thor- ough knowledge of the changes in the law in this respect are indis- pensable to a correct and satisfactory examination. By the common law, upon the marriage of a man with a woman seized of an estate of inheritance, he became seized of the freehold jure uxoris during their joint lives, and if he had issue by her born alive, then for his own life absolutely ; in which latter case, if he survived the wife, he was styled tenant by the curtesy.^* Sub- sequently, by statute, the husband was given this right of tenancy by the curtesy, whether they had issue born or not. In most of the States tenancy by the curtesy is now abolished. A few remnants are stiU observable, however, and local law must be resorted to for the purpose of defining the husband's marital rights. The first enactments looking toward the power of alienation by the wife provided that conveyances might be made by forms of deeds ordinarily employed, but attended by many formalities par- ticularly in the matter of acknowledgment and authentication, it being a vital principle always that the husband join in the con- veyance. Under these enactments the acknowledgment of the wife seems to have been the operative act to pass title and not the de- livery of the deed. Subsequently the rigors of the early rules became relaxed, and, while the husband was still required to join in the execution, the acknowledgment ceased to be the effective means to work the transfer of title, and the certificate thereof was placed on the same footing as that required for an unmarried 21 1 Blk. Com. 293 ; 2 Kent Com. 23 1 Blk. Com. 126 ; 2 Kent Com. 150. 108. 22 Hoyt V. Swar, 53 111. 134. § 244] SPECIAL CLASSES OP INDIVIDUAL CONVEYANCES. 267 woman. The greater part of the old formalities, in a majority of the States, are no longer requisite, the gradual and uniform ten- dency of modern legislation being to facilitate the power of aliena- tion by women of their separate estates, though it is still indis- pensable, in many jurisdictions, that the husband join with the wife in the execution of the deed.^* Legislation, in some of the more advanced States, has had the efEect to destroy the common law unity of person in husband and wife, so far as that unity is represented by the husband, and in its stead a rule has been introduced, analogous to that of the civil law, by which the wife is regarded as a distinct person so far as her separate property, contracts, etc., are concerned, while her con- veyances may be made in the same manner, and with like ejffect, as if she were unmarried.^^ Under these laws no joinder is neces- sary, other than for the purpose of waiving homestead or other marital rights, and for all practical purposes of transfer of her separate property the husband and wife stand before the law as strangers.*® The tenancy by the curtesy is also becoming obsolete or attaches only on the death of the wife, and then but to such lands as she died seized of, and of which she had made no final disposition by will. Where, however, the laws of a State give to the husband the same right of dower in the real estate of the wife that she has in his real estate, the effect of a non- joinder of the husband in a deed of the wife's lands has the effect to preserve such dower interest, and hence the joinder becomes necessary to a properly executed deed.*'' § 244. Effect of Wife 's Conveyance. When a married woman joins with her husband, or otherwise properly executes a convey- ance of lands, held by her in her own right, which purports to convey the entire estate therein, she is estopped from afterward setting up any title to such lands, whether it existed at the time of making such conveyance, or was subsequently acquired by her.** So, too, the deed or other contract of a married woman respecting her separate property may be reformed for mistake the same as if she were sole. Where the deed is made upon a good consid- 24 Styles V. Probst, 69 111. 382; 621; Tomlinson v. Matthews, 98 111. Hillman v. De Nyse, 51 Ala. 95; 178. Hand v. Winn, 52 Miss. 784; Arm- 26 Tomlinson v. Matthews, 98 111. strong V. Boss, 20 N. J. Eq. 109. 178. 2B Price V. Osborn', 32 Wis. 34; 27 Huston v. Seeley, 27 Iowa, 183. Westlake v. Westlake, 34 Ohio St. 28 King v. Eea, 56 Ind. 1. 268 ABSTRACTS OP TITLE. [§ 245 eration, defects may be remedied, and the deed specifically enforced in equity.^' §245. Continued — Acknowledgment. The formalities attend- ing the acknowledgment of married women's conveyances now differ in no material respect from other deeds, though formerly they involved no little circumlocution and ceremony. It was, and, in some few States, is yet, customary to make a personal examina- tion of the wife, apart from the husband, in which the contents and nature of the instrument must be made known to her, and upon such examination she is required to make a "free and voluntary" acknowledgment without " fear or compulsion," and to further state that she does not wish to retract ; that she resigns her dower, waives her homestead rights, etc., and where such is the law, courts have usually exacted a strict and literal compliance, and material departures or omissions have been held to vitiate the conveyance as a means of passing the wife's interest in the property.^" The law long regarded the wife as under the control of the husband, and subject to his coercion. Hence, it was not expected that in his presence, and within his hearing, she would be likely to act con- trary to his wishes, and therefore it required her to signify her wish or intention apart from him before the officer taking the acknowl- edgment. The result of this separate examination is sometimes embodied in a separate certificate, but the usual method is to state the facts in a separate clause attached to or following the general statement of acknolwedgment. In all cases the statement of essen- tial facts must be clear and explicit. It will be seen from the foregoing that the date of execution may be an important factor in determining the validity of a married woman's deed; that during certain periods it will be valid only when the husband has joined in the execution and the certificate of aeknowlMgment shows a special method of authentication ; that during certain other periods while the husband must be joined yet the acknowledgment may be made as in other cases of transfer ; and that in still other periods a married woman's deed is not dis- tinguished from that of her husband, requiring no joinder and no special method of acknowledgment. These various periods will be determined by local statutory law, and both examiner and counsel must be conversant therewith. 29 Knox V. Brady, 74 HI. 476; Wright v. Dufield, 58 Term. 218; P^- Shivers v. Simmons, 54 Miss. 520. tition of Bateman, 11 E. I. 585; Lit- 30 Fribble v. Hall, 13 Bush (Ky.), tie v. Dodge, 32 Ark. 453; Silliman 61; Looney v. Adamson, 48 Tex. 619; v. Cummins, 13 Ohio, 116.. § 246] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 269 § 246. Release of Dower. The right to dower is a legal right which cannot be barred, unless it has been relinquished in the man- ner prescribed by law,^^ and this may be accomplished either by a joinder of the wife in a conveyance by the husband, or by a separate deed of relinquishment.^^ The release which a woman makes by joining with her husband operates against her only by estoppel and not by grant,^^ and, in the absence of any express legislative requirement to the contrary, the release will be valid and effectual without mention of her name, or of the dower, in the body of the deed. It being only an inchoate right, and not a present estate, no words of grant are necessary.^* Nor is it necessary that there should be a consideration moving to her, and though she might insist on a consideration inuring solely to herself as a condition of such release, yet, failing to exact this,' her release will be good if supported by adequate consideration moving to the husband alone.** Where a wife joias with her hus- band in a conveyance of his lands, which is properly executed by her, is effectual and operative against him, and is not superseded or set aside as against him or his grantee, her inchoate right of dower is thereby forever extinguished for all purposes.*^ The convey- ance, however, must be of the freehold or fee,*'' and such as would destroy the seizin of the husband, while the right is of such a nature, when inchoate, that it cannot be itself transferred by any of the instruments of conveyance in common use,*' and can be 31 Davis -J. McDonald, 42 Ga. 205. husband, her right of dower continues "A divorce from the bonds of mat- notwithstanding the divorce. This rimony," observes Mr. Washburn, is the rule in Illinois and several "always defeats the right of dower, other States. unless it be saved by the statute au- 32 Sykes v. Sykes, 49 Miss. 190 ; thorizing such divorce; for at com- Shepard v. Howard, 2 N. H. 507; mon law, in order to entitle a widow Thatcher v. Howland, 2 Met. 41. to dower, she must have been the 33 Mallony v. Horan, 12 Abb. (N. wife of the husband at the time his Y.) Pr. N. S. 289; do. 49 N. T. 111. decease": 1 Wash. Real Prop., *196, 34 Johnson v. Montgomery, 51 111. and see also Bish. Mar. & Div., §661; 185; Frost v. Deering, 21 Me. 156; 2 Black. Com. 130; 4 Kent Com. 54; Sterns v. Swift, 8 Pick. 532, but com- Whitsell V. Mills, 6 Ind. 229; Me- pare- McFarland v. Pebiger, 7 Ohio, Craney v. McCraney, 5 Iowa, 232. A 194. reasonable provision out of the hus- 36 Bailey v. Litten, 52 Ala. 282. band's estate is usually given in lieu 36Elmdorf v. Lockwood, 57 N. Y, of dower. See "Chancery Proceed- 322. ings," infra. In some States, how- 37 Sykes v. Sykes, 49 Miss. 190. ever, where the action is brought by 38 Marvin v. Smith, 46 N. Y. 571. the wife, for the misconduct of the 270 ABSTRACTS OF TITLE. [§ 246 released only to the owner of the fee, or to some one in privity with the title by his covenants of warranty.^* The release is often accomplished by a separate instrument of re- linquishment, but as this deed acts only by way of estoppel, no particular form of words is necessary, and any apt words indicating the intent will suffice.** The abstract of such an instrument would consist mainly of its recitals, thus : Clio S. Greene to James W. Penfold. Release of Dower.*^ Dated Nov. 6, 1851. Recorded Nov. 7, 1851. Vol. "B," page 379. "For a valuoMe consideration," releases all right and claim of dower in and to a certain piece of land in the South-West frac- tional quarter of Section 19, Town 2 North, Range 22, East — , described in a conveyance by "my husband," Patrick P. Greene, to said James W. Penfold, and recorded in Vol. "B," page 124. Acknowledged Nov. 6, 1851. Whenever practicable, let the deed of relinquishment immedi- ately follow the husband's deed, -irrespective of intervening con- veyances, or if to a grantee of the husband's grantee, then immedi^ ately after his deed, the object being to keep the dower interest closely associated with the fee. This method of arrangement will be highly appreciated by counsel. § 247. Joint Tenancies and Tenancies in Common. Where sev- eral persons purchase land, and advance the money in equal pro- portions, and take a conveyance to themselves and their heirs, this, at common law, is a joint tenancy; that is, a purchase by them jointly of the chance of survivorship, which may happen to the one of them as well as the other. The doctrine of survivorship, however, is not in accordance with the genius of our institutions,*^ and this incident of estates has been generally abolished in the United States, except in a few in- stances,*^ while the extent of its operation has everywhere been 39 La Framboise v. Crow, 56 111. leases," but this is the name they 197; Eeed v. Ash, 30 Ark. 775. have acquired. MGillilau V. Swift, 21 N. Y. Sup. 42 Burnett v. Pratt, 22 Pick. Ct. 574. (Mass.) 557. 41 Deeds of this character are more 43 A joiat tenancy in lands held by properly "Surrenders" than "Ee- husband and wife has the same chat- § 248] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 271 very irmch restricted. Conveyances to two or more persons are now usually held to create a tenancy in common, unless the lan- guage used clearly and manifestly shows an intention to create a joint tenancy, in which event the intention may be given effect. But even where this is allowed a joint tenant, by deed, may alienate his undivided interest and his grantee will hold as a tenant in com- mon with the others. Where a deed purports to create a joint tenancy the words of purchase, grant and limitation all become material and should be shown in the abstract with the same fullness as in the deed. Thus : Grants, bargains and sells to said second parties as joint tenants and not as tenants in common, etc. This formula is now prescribed by statute in most of the States. Tenants in common are considered as solely and severally seized ; they have several and distinct freeholds, and there is no privity of estate between them.** Thej^ may convey and dispose of their undivided interests to a stranger and the same may be taken and sold on execution,*^ the purchaser simply taking the same position in relation to the co-tenants as was occupied by the grantor or judgment debtor ; *® but one tenant in common, owning an un- divided interest, cannot convey to a stranger a certain portion of the tract in common, and pvit the purchaser in possession of the portion conveyed,*'' unless the other tenants confirm the convey- § 248. Partition Deeds. Where property is owned by a num- ber of persons in common, they may, by properly executed deeds, convey to each other in severalty specific portions of what was formerly held jointly, and where the course of title clearly shows the origin of their property rights and the proper measure of their title, the deeds so executed are evidences of title of the highest order. This will be the case where land is held by partners, and all purchasers by deed or will in M'hich they are specifically desig- acteristics as to survivorship, under 46 Fischer v. Eslaman, 68 111. 78. the statutes of most of the States, 47 Mattox v. Hightshue, 39 Ind. 95 ; as existed between joint tenants at Shepardson v. Eowland, 28 Wis. 108; common law. See, Bassler v. Eewo- Hartford, etc., Ore Co. v. Miller, fi linski, 130 Wis. 26, 109 N. W. 130, 7 Conn. 112. Compare Barnhart v. L. E. A. (N. S.) 701; Dowling v. Campbell, 50 Mo. 597. Salliotte, 83 Mich. 131, 47 N. W. 225. 48 Hartford, etc., Ore Co. v. Mil- 44 Burr v. Mueller, 65 111. 258. ler, 41 Conn. 112. 46 Butler V. Eoys, 25 Mich. 53. 272 ABSTRACTS OF TITLE. [§ 248 nated, but not always when the claim is by descent. In the latter event a proper proof of heirship is essential, and unless this appears the title is not marketable. A partition deed is mutual, unless otherwise specified, the inter- change of interests forming the consideration In abstracting same, all the material recitals should be fully stated, and the method of division minutely described. The ordinary covenants will not, as a rule, be found, but a mutual covenant of non-claim and warranty against their own acts, and those claiming under them, is usually inserted in their place. The deed should be signed and acknowledged by both parties to the transaction and is pre- sumably interchangeably delivered. A deed possessing these and other requisites might be shown in the abstract as follows : Andrew Barlovfi^ "j Partition Deed, to and with \ Dated, etc. Charles Dalton. ] * * * * * Recites, that said parties are now seized in fee simple, as tenants in common of the following described estate [describing same], and have agreed to make a full, just and equal partition and di- vision between them, of and in the aforesaid tract, of and accord- ing to their respective shares and interests therein, in manner fol- lowing [describing same]. And said Andrew Barlow gives, grants, allots, assigns, sets over, releases and confirms to said Charles Dalton the said first described piece or allotment of land, to have and to hold * * * * * in severalty, as his full share therein. And Charles Dalton gives, grants, etc. [describing his allotment]. And said Andrew Barlow covenants that said Charles Dalton shall freely, etc., hold and enjoy saM, first described piece or allot- ment of land without molestation, interruption, or denial of him, said Andrew Barlow, or any person claiming by, through or under him. (And said Charles Dalton covenants the same in regard to said second described piece or allotment of land.) Signed and acknowledged by both parties August 1, 1881. §249. Partnership Conveyances. Lands held by several per- sons as partners, purchased by them with partnership funds and for partnership purposes, are regarded in a somewhat different 49 When the course of title is ance in this abstract is supposed to through Andrew Barlow, simply re- be from Charles Dalton. verse the names. The next convey- § 249] SPKCIAL CLASSES OF INDIVIDUAL CONVEYANCES. 273 light from lands held by an individual, or even by tenants in com- mon in their ordinary relation, and for certain purposes may be treated as personal property. Even though the title be taken in the individual name of one or both partners, the land will, in equity, be treated as personalty so far as is necessary to pay the debts of the partnership or adjust the rights of the partners. No other or different formalities are necessary in its acquisition than those observed in the case of ordinary deeds of conveyance. Yet, though the conveyance to them is in form such as to make them tenants in common, still, in the absence of an express agreement, or of cir- cumstances showing an intent that the estate conveyed shall be held for their separate use, it will be considered and treated in equity as vesting in their partnership capacity, and clothed with an implied trust that they will hold it until the purposes for which it was purchased shall 'be accomplished, and that it shall be applied, if necessary, to the payment of the partnership debts. Upon the dissolution of the partnership by the death of one of the partners, the survivor has an equitable lien upon such real estate for his indemnity against the debts of the firm, and for securing, the balance that may be due to him from the deceased partner on settlement of the partnership accounts between them, and the widow and heirs of such deceased partner have no bene- ficial interest in such real estate until the surviving partner is so indemnified.^' The legal title, it is true, is cast upon the heirs as in any other case of tenancy in common, but only becomes certain after all the debts of the firm are paid.^^ As the widow and heirs can claim only in the right of the husband and father, such deriva- tive right in equity will extend no further in behalf of the wife and children than that of the partner from whom it is derived.** A surviving partner, in a proper case, may sell the real estate of the firm, and though he cannot convey the legal title which passed to the heir or devisee of the deceased partner, his sale will yet invest the purchaser with the equitable ownership of all the land and the right to compel a conveyance of the title from the heir or devisee in a court of equity.** Conveyances of partnership realty should be executed by each and all of the partners in the same manner as deeds by tenants 50 2 Sugd. V. and P. 427 (Perkins' 52Bumside v. Merrick, 4 Met. 537. notes); Dyer v. Clark, 5 Met. 562; BSDupuy v. Leavenworth, 17 Cal. Cobble V. Tomlinson, 50 Ind. 550. 262 ; Shanks v. Klein, 104 U. S. 18 61 Collins v. Warren, 29 Miss. 236; Holland v. Puller, 13 Ind. 195; Shear- er V. Shearer, 98 Mass. 111. Warvelle Abstracts — 18 274 ABSTRACTS OP TITLE. [§ 249 in common, and it seems that a deed executed by one partner only in the name of the firm will convey only the undivided portion of the estate owned by such partner,^* or rather only a contingent right to such part after the debts are paid, while the authorities are unanimous in declaring that a firm name, as "Jno. Smith & Co.," is not a proper legal designation either of grantor or grantee, and is effective in either case only for or against the persons spe- cifically named.^* But a deed running to a partnership, the name or title of which does not include the name of one of the partners, while void at law, may yet be reformed in equity in conformity with the facts.^® In compiling the abstract of a partnership deed the names of the partners, whether grantors or grantees, should be set forth sub- stantially as in the deed with full description of the persons. As : Thomas Jones and William Smith, partners under the firm name and style Jones & Smith. All material deviations from this formula should be noted. The execution and acknowledgment will sometimes require special mention. § 250. Corporate Conveyances. There are three classes of cor- porations recognized by our laws : Public municipal corporations, corporations technically private, but of a quasi public character, as railroads, etc., and corporations strictly private, all of whom, under general or special conditions, have the power to acquire, hold, and transmit the title to land. Though regarded in law as persons for certain purposes, they are not entitled to the privileges of citizens,^'' as guaranteed by the Federal Constitution, neither in B4 Dillon V. Brown, 11 Oray, 179. full knowledge, acquiesced in what he Nor will it render the other partners had done: Gibson v. Warden, 14 liable on the covenants: Hobson v. Wall. (U. S.) 244; Cady v. Shepard, Porter, 2 Col. T. 28. 11 Pick. (Mass.) 400; Peine v. Weber, 65 Arthur v. Webster, 22 Mo. 378; 47 111. 45; the difficulties attending Winter v. Stock, 29 Cal. 407; Gossett such proof will be readily seen, how- V. Kent, 19 Ark. 607; Barnett v. ever, and while by no means insur- Lachman, 12 Nev. 361. A sealed in- mountable they are of such a nature strument (deed or other specialty), as to make it almost imperative on executed by one partner in the name counsel to demand that the title be of the firm, may be treated as the assured by a better deed, deed <^t all the partners, upon proof 66 Spaulding Mfg. Co. v. Godbold, that prior to the execution the others 92 Ark. 63, 121 S. W. 1063, 29 L. . had authorized him to execute the E. A. (N. S.) 282. instrument, and after execution, with 57 Although a corporation is not a § 250] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 275 the State of their creation, nor in other States which they may enter for the purpose of business. Their right to acquire and transmit property is a statutory one in the home State, and in a foreign State is based upon the comity between the States. In the latter case it is a voluntary act of grace of the sovereign power,^' and is inadmissible when contrary to its policy or prejudicial to its interests.^* A corporation has only such powers as its charter gives it, either expressly, or as incident to its existence, and in determining whether a given act is within the power of a corporation, it is nec- essary to consider, first, whether the act falls within the powers expressly enumerated in the charter or defined by law ; and second, whether it is necessary to the exercise of one of the enumerated powers,^" and these apply both to the acquisition and transfer of real property.^^ Land which a corporation cannot hold in its own name it cannot hold in the name of another, and when a corporation cannot hold the legal title to land, it cannot take a beneficial inter- est in it.®^ It would seem, therefore, that the organic act, or some portion thereof, should supplement every conveyance purporting to pass title to a corporation as constituting one of the strongest assurances of the validity of subsequent conveyances,®* but in practice this is citizen within the several provisions a contract; and, if the charter and of the Constitution, yet where rights valid statutory law are silent upon of action are to be enforced by or the subject, whether the power to against a corporation, it wUl be eon- make such a contract may not be sidered as a citizen of the State where implied on the part of the corpora- it was created: Railway Co. v. Whit- tion as directly or incidentally nee- ton, 13 Wall. 270. This, however, essary to enable it to fulfill the pur- applies more particularly to contro- pose of its existence, or whether the versies in the Federal Courts. contract, is entirely foreign to that 68 Ducat V. Chicago, 48 111. 172; purpose: Weckler v. Bank, 42 Md. Ins. Co. V. Commonwealth, 5 Bush 581; Watson v. Water Co., 36 N. J. (Ky.), 68; State v. Fosdick, 21 La. L. 195. Ann. 434. 61 Franco-Texan Land Co. v. Mc- 69 Carroll v. East St. Louis, 67 111. Cormick, 85 Tex. 416. 568. 62 Coleman v. E. R. Co., 49 Cal. eoVandaU v. Doek Co., 40 Cal. 83; 517. PuUan V. E. E. Co., 4 Biss. 35 ; 63 At the present time corporations Weckler v. Bank, 42 Md. 581; Mat- are organized under general laws thews V. Skinner, 62 Mo. 329. In which define their powers and capaci- determining whether a corporation ties. Hence, in the case of modern can make a particular contract, it corporations no dificulty wiU usually must be considered whether its char- be experienced in determining ques- ter, or some statute binding upon it, tions of capacity. The suggestion of forbids or permits it to make such the text applies more particularly to 276 ABSTRACTS OF TITLE. [§ 250 seldom done, though the authority to make a deed frequently con- stitutes one of the recitals in conveyances from corporations. As corporations are now almost universally organized under general laws, which define their powers in this respect,^* the matter pre- sents fewer intricacies than formerly, yet as a rule, whenever the title under examination passes through a corporation, and the deeds furnish no internal evidence to demonstrate their validity, a requisition should be made by the examining counsel for such in- formation as, in his opinion, may be necessary to show same. This question will often arise in the case of foreign corporations. § 251. Statutes of Mortmain. The common law right of cor- porations to take and hold real estate has been restrained in Eng- land from an early day, by a series of laws called statutes of mort- main, which were passed to repress the grasping spirit of the church which, it was claimed, was absorbing in perpetuity the best lands in the kingdom.^* "They were called statutes of mortmain," observes an eminent writer, "because designed to prevent the hold- ing of lands by the dead clutch of ecclesiastical corporations, which in early times were composed of members dead in law, and in whose possession property was forever dead and unproductive to the feu- dal superior and the public. ' ' ^® This system of restraint, though originally confined to religious corporations, was subsequently ex- tended to civil or lay corporations. The English statutes of mortmain, though they have been held in some of the States to be the law, so far as applicable to present political conditions, have not been re-enacted in this country; yet the policy has been retained and is manifest in the general and special enactments of every State. To prevent monopolies, and to confine the action of incorporated companies strictly within their proper sphere, the acts incorporating them almost invariably limit corporations organized during the corporations. The law and the arti- period when special legislation of this cles so filed, taken together, are con- kind was permitted. In the case of sidered in the nature of a grant from domestic corporations the published the State, and constitute the charter volumes of private and local laws of the company: Abbott v. Smelting will supply the desired information. Co., 4 Neb. 416; Mining Co. v. Herki- In case of foreign corporations a mer, 46 Ind. 142; Whetstone v. Ot- requisitiou for further information tawa University, 13 Kan. 320; Hunt will often become necessary. v. Bridge Co., 11 Kan. 412; State v. 64 The filing of articles of incof- Leflingwell, 54 Mo. 458. poration in one of the county of&ces 65 1 Black Com. 479. and with the Secretary of State is 66 Ang. & Ames on Corp., § 148 ; now the usual manner of organizing 3 Co. Lit. 2 b. ; 1 Black Com. 479. § 253] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 277 not only the amount of property they shall hold, but frequently prescribe in what it shall consist, the purposes for which it shall alone be purchased and held, and the mode in which it shall be applied to effect those purposes. Special legislation for corpora- tions, in most of the States, has been abolished, and companies are incorporated under general laws of uniform application, but the policy above outlined is still vigorously maintained. § 252. Power of Acquisition — User. There is a broad distinc- tion between the power of acquisition of property and the use to which it is to be applied, and the effect of the distinction upon the rights of third persons is equally marked. Where the charter of a corporation, or the general law under which it is organized, prohibits the purchase of lands for any purpose, a deed to it would be an utter nullity, as its capacity to take is determined by the instrument or act which gave it existence ; ^"^ but, having the power to purchase and take, though for a specific purpose only, it be- comes fully invested with title by a deed properly executed, even though the property be acquired and used for a purpose forbidden by the organic act.^^ As a rule, deeds to and from corporations are effective to convey the title to the lands therein described, and titles so derived cannot be impeached collaterally, nor their validity be questioned by third persons, on the ground that the transaction was beyond the corporate power; for where a corporation exceeds its powers, the remedy is by a direct action in the name of the State,^* which alone can interfere.'"' Parties dealing with cor- porations are chargeable, however, with notice of the limitations imposed by the charter upon their powers.''^ §253. Municipal Corporations. Municipal corporations are creatures of the statute, and can exercise only such powers as are 67Leazure v. Hillegas, 7 S. & E. private suitors on conveyances or (Pa.) 319. Yet whether real estate other unauthorized acts of a corpora- has been acquired in excess of the tion is where such attack is author- corporate powers to take and hold ized by express legislative permission, can not be made a question by any See, Martindale v. B. E. Co., 60 Mo. party, except the State, who alone 508; Bank v. Mathews, 98 U. S. 621. must assert her policy in that regard: TODeCamp v. Dobbins, 29 N. J. Alexander v. ToUeston Club, 110 m. Eq. . 36; Hayward v. Davidson, 41 65; Baker v. Neff, 73 Ind. 68. Ind. 214. The doctrine of ultra vires 68 Hough V. Land Co., 73 lU. 23. is generally applied only to such con- 69 Smith v. Sheeley, 12 Wall. 358; tracts as remain wholly executory: Kelly V. Transportation Co., 3 Oreg. Thompson v. Lambart, 44 Iowa, 239. 189; Conn., etc., Ins. Co. v. Smith, 71 Franklin Co. v. Lewistou Inst. 117 Mo. 261. The only exception to for Savings, 68 Me. 43. the rule which prohibits attack by 278 ABSTRACTS OF TITLE. [§ 253 expressly conferred, or such as arise by implication from general powers granted. Where the charter empowers a municipal cor- poration to buy and hold real property, it must be understood to be purchases made in the ordinary way, and for corporate pur- poses only ; and a grant to purchase for particular purposes would seem to be a limitation on the power of such corporations, and to exclude, by necessary implication, all purchases for mere spec- ulation and profit. "Power to purchase for speculative purposes," says Scott, J., "is not among the usual powers bestowed on mu- nicipal corporations, nor does such power^ arise, by implication, from any of the ordinary powers conferred on such corpora- tions." ^^ Municipal corporations, under a general grant of power to buy and hold land, may purchase, within the, corporate limits, such property as may be necessary for corporate purposes, and may even buy and hold land beyond the corporate limits, for the loca- tion of cemeteries, pest houses, drainage, etc.,''^ but in the absence of any enabling statute, cannot become the purchaser of lands or lots at a tax sale, and on compliance with the statute in that regard obtain a deed that will invest such corporations with the title to the property.''* Deeds by a municipal corporation stand upon a somewhat dif- ferent footing from private corporations generally, and for their proper proof it is necessary that the authority for their execution should also appear.'* This authorization will usually take the form of a resolution by the municipal legislature. The resolution should always appear in the abstract in connection with the deed made pursuant thereto. Practical examples will be given further on. § 254. Conveyances to Corporations. By common law, and in the absence of statutory prohibitions, corporations aggregate,''* in 72 City of Champaign v. Harmon, 75 Ward v. Lumber Co., 70 Wis. 98 111. 491; and see 2 DiU. Mun. 445. Corp., § 433. 76 Corporations sole, though com- 73 2 Dill. Mun. Corp., § 435. The paratively common in England, are general rule is that municipal corpq- seldom created in the United States, rations can not purchase or hold real The general laws for the organiza- estate beyond their territorial limits, tion of corporations all provide for unless this power is conferred by the a number of corporators. But, uh- legislature : 2 Dill. Mun. Corp., § 435 ; der former laws instances of sole and see Denton v. Jackson, 2 Johns. corporations wiU be found. Thus, Oh. 336; Chambers v. St. Louis, 29 "The Catholic Bishop of Chicago" Mo. 543. is a corporation sole by virtue of a 74 City of Champaign v. Harmon, special act of Legislature. ' ' 98 111. 491. ' § 255] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 279 whatever manner created, can take, like natural persons, by every method of conveyance knovirn to the law." No particular words of gi-ant are necessary, other than, those in common use in convey- ances to natural persons, though it is usual to insert, as a word of limitation, the term "successors." The word is not necessary, however, to convey a fee, independent of the statute which provides for a fee, for, admitting that such a grant is strictly only a life estate, yet as a corporation, unless of limited duration, never dies, such estate for life is perpetual, or an equivalent to a fee simple, and therefore the law allows it to be one.''* As between the parties, where the corporation is authorized by its charter or the law under which it is organized, to purchase land, receive conveyances thereof, and hold title to the same, but is prohibited from purchasing and holding for any other than a prescribed purpose, the question of the validity of the title con- veyed cannot be inquired into. The title vests in the corporation by a deed duly executed, and the question as to whether the cor- poration has exceeded its power can be raised only by the State or by a stockholder.™ A distinction must, however, be observed be- tween the power of acquisition and the use to which the land is to be applied, but, as a general rule, a proper and legitimate purpose is always presumed on the part of a corporation in accepting a con- veyance of land.*" § 255. Conveyances by Corporations. All private corporations have an incidental right to alien or dispose of their lands, without limitation as to objects, unless restrained by the act of incorpora- tion, or by statute ; and the power to mortgage, when not expressly given or denied, will be regarded as an incident to the power to acquire and hold land, and to make contracts concerning same.'^ In general, they convey their land in the same inanner as individ- uals, the laws relating to the transfer of property being equally applicable to both,*^ and the only features that particularly dis- tinguish this class of conveyances from individual deeds are in the execution and acknowledgment. The orderly parts of the deed follow closely the ordinary deeds 77 Am. BiWe Society v. Sherwood, Smith v. Sheeley, 12 "Wall. 358; 4 Abb. (N. T.) App. 227; Ang. & Baker v. Neff, 73 Ind. 68; Kelly v. Ames on Corp. 140. Transportation Co., 3 Oreg. 189. 78 Ang. & Ames on Corp. 141; 2 80 Life Ins. Co. v. Smith, 117 Mo. Blk. Com. 109; Overseers v. Sears, 261. 22 Pick. 122 ; Congregational Socie- 81 Agricultural Society v. Paddock, ty V. Stark, 34 Vt. 243. 80 111. 263. 79 Hough v.- Land Co., 73 111. 23; 88 Ang. & Ames on Corp. §193. 280 ABSTEACTS OF TITLE. [§ 255 in common use, the full name of the corporation appearing in the premises as the grantor, while the hody of the deed frequently contains a recital showing the inducement of the instrument and the authority for its issuance. The execution, in most of the States, is regulated by express statute which provides for a specific method of signing and sealing and sometimes for acknowledgment as well. The seal is usually indispensable to a perfect execution and its absence is a defect that calls for notice. "A corporation," says Blaekstone, "being an invisible body, cannot manifest its intentions by any personal act or discourse ; it therefore acts and speaks by its common seal. For, though the particular members may express their private consents to any act, by words or signing their names, yet this does not bind the corporation; it is the fixing of the seal, and that only, which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole." *^ This is now true, however, only in a very limited sense, as corporations do contract by officers and agents without the use of the seal, but in the conveyance of land the rule is still main- tained, and the deed of a corporation without the corporate seal is inadmissible in evidence imless the authority of the ofScers ex- ecuting it is shown. A mere recital of such authority in the deed is not sufficient for this purpose.'* The seal must be "the common seal of the body, either originally or by adoption, and must be affixed by competent authority.'^ Whatever light the instrument sheds upon itself by way of re- cital or otherwise should always be stated, either literally or with little deviation from the original, the literal transcriptions being indicated by quotation marks. Here follows an example of an abstract of a simple deed by a corporation : South Park Commissioners, a public corporation exist- ing under and by virtue of t\e laws of Illinois, to William Thomas. Doc. 128,288. Quitclaim deed. Bated Aug. 1, 1880. Recorded Aug. 10, 1880. Book 120, page 540. Consideration $100.00. Conveys and quitclaims all in- terest said corporation acquired or derived under, through, or by virtue of a certain tax sale deed to said corporation by the County Clerk of Cook County, Illinois, 83 1 BI. Com. 475. 572. The seal is itself prima fade 84 Gaahwiler v. Willis, 33 Cal. 11. evidence that it was affixed by proper 85 Jackson v. Campbell, 5 Wend. authority : Solomon 's Lodge v. Mont- § 256] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 281 dated June 1, 1879, and recorded in Book 85 of Records, page 640, in and to the following described real estate, situated in said Cook County, to wit: [Here follows the description.] Said interest acquired being a tax claim covering the 1st, 2d, 3d, 4th, 5th, 6th, 7th and 8th installments of the South Park Special Assessm,ent. "In witness whereof, said corportaion hath caused this indenture to be signed by its President and attested by its Secretary, and its . official seal to be hereto affixed." Signed : "J. B. WALSH, President. Attest : "H. W. HARMON, Secretary. Acknowledged by said President and Secretary as the free and voluntary act of said South Park Commissioners. Certificate of acknowledgment dated Aug. 1, 1880. §256. Continued — Execution — Acknovtrledgment. In the pre- ceding example, it will be observed that the execution and accom- panying recitals are quoted, and this practice is recommended as being conducive of greater certainty, and as presenting an answer to every question that can arise. The mode of execution of cor- porate conveyances is usually prescribed by statute, and ordinarily consists of the signature of the^ president or corresponding officer who subscribes as such officer, and the affixing of the corporate seal. In addition to this, even when not required by statute, it is cus- tomary for the secretary or person having the custody of the seal to attest the same under his hand. Whatever may be the law, a full exemplification of the execution wiU present all the questions that can arise under it. The seal, when shown of record, should be copied or described, and its absence specifically noted as a serious defect. It does not seem, however, that it is necessary that the record should contain a fac simile of the corporate seal.*® The seal of a corporation, when affixed to any deed or contract by proper authority,*^ is not distinguishable in its legal eifect from mallin, 58 Ga. 547; Bank v. Kort- 87 When the deed is shown to have right, 22 Wend. 348; Eeed v. Bradley, been duly executed by one having 17 III. 321; riint v. Clinton Co., 12 authority, proof that the seal aflSxed N. H. 434. is the corporate seal is unnecessary; 86 See, Anthony v. Bank, 93 111. Phillips v. Coffee, 17 111. 154. 225. 282 ABSTEACTS OF TITLE. [§ 256 that of an individual, and renders the instrument a specialty.** It is the highest evidence of assent, and was formerly the only requisite necessary to bind the corporation. In some of the States, the deed must be signed with the name as well as sealed with the seal of the corporation.*^ Where the execution conforms to the law of the State where the land conveyed is situate, no questions will probably arise. Where it does not so conform, recourse must be had by counsel, in the absence of other evidences of conformity, to the law of the State where the conveyance was executed, or where the "home office" is located. Appended matter, showing authority, conformity, etc., should as a rule, be fully presented. Where several officers sign, an acknowledgment by one only in behalf of the corporation is sufficient.'" But, in any case, the persons appearing must ac- knowledge as officers and not as individuals; failing in this the acknowledgment will be fatally defective.'^ In the absence of statutory provisions to the contrary, where a deed, purporting to be the deed of the corporation, is signed by its officers, as such officers, and has the corporate seal affixed, it is admissible in evidence as a deed of the corporation, and is itself presumptive evidence of the regular and duly authorized , execution of same.®^ The following is a good example of an ab- stract of execution, acknowledgment, and appendant matter : "In witness whereof the said Union Mutual Life Insurance Company hath caused its Corporate Seal to ie hereunto affixed, and these presents to be subscribed by John E. De Witt, its Pres- 88 Clark v. Manf . Co. of Benton, who has affixed the common seal to 15 Wend. 256; Benoist v. Oarondelet, the same, stands also in the character 8 Mo. 250. In the absence of the of a subscribing witness to the execu- common seal, or of proofs of facts tion of the deed by the corporation; whence the authority of the officers and may be examined by the officer of a corporation to execute a con- taking the proof to prove that the veyance may be inferred, such au- seal afSxed by him is the common thority can only be established by seal of the corporation, whose deed resolution of the directors or trus- the conveyance or instrument to which tees entered in the proper book of the it is affixed purports to be. ' ' Wil- corporation: Southern Cal. Colony lard's Conveyancing, 393; Lovett v. Assoc. V. Bustamente, 52 Cal. 192. Steam Mill Association, 6 Paige, 60; 89 Isham v. Bennington Iron Co., Johnson v. Bush, 3 Barb. Ch. 207. 19 Vt. 251. I SlBernhart v. Brown, 122 N. C. 90 Merrill v. Montgomery, 25 Mich. 587. 73. "The officer of the corporation 92 Miners' Ditch Co. v. Zellerbach, intrusted with its common seal, and 37 Cal. 543; Sawyer v. Cox, 63 111. who subscribes his name to the deed 130; Solomon's Lodge v. Montmal- as the evidence that he is the person 'lin, 58 Oa. 547. §256] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 283 ident, duly authorized by vote of the Finance Committee of the Board of Directors of said Corporation,^^ a certificate of which is hereto attached," etc. Signed: "UNION MUTUAL LIFE IN- SURANCE COMPANY, "By JOHN E. Be WITT,^ President." Acknowledged by said President as his free and voluntary act and deed, and as the act and deed of said Company. Certificate of acknowledgment dated August 10, 1883. APPENDED IS Extract from Article 9 of the By-Laws of the Union Mutual Life Insurance Company: "The Finance Committee may authorize the foreclosure of mortgages in any manner provided by the laws of the State or country in which the mortgage property is situated and may direct the sale of any real estate held by the Company, or in trust for the Company; and when they shall direct any such sale of prop- erty held by the Company, the President, and in his absence the Vice President, is authorized to execute the proper instrument of conveyance." Attest: JAMES SIMMONS, Secretary. At a meeting of the Finance Committee of the Board of Di- rectors of the Union Mutual Life Insurance Company, held on 93 A purchaser of land from a cor- poration, being a stranger to the cor- poration, is not bound to know that there is a by-law of the company re- quiring an order of the board of di- rectors to authorize a sale of laud owned by the company. The rule is the same where a purchaser receives a bond from a corporation for a deed for land purchased, and he will be entitled to the deed according to the provisions of the bond, notwithstand- ing there was no order of the board of directors authorizing the sale: Wait V. Smith, 92 111. 385. 94 It is presumed, when the common 284 ABSTRACTS OF TITLE. [§ 256 August 10, 1883, the foregoing Deed was approved, and the Pres- ident directed to execute, acknowledge and deliver the same. Attest: JAMES SIMMONS, Secretary of the Finance Comm/ittee. As a general rule the president of a corporation has power to bind it, within the scope of its powers, and as its rules and by- laws are not usually open to public inspection, particularly where the home office is in a distant State, such rules and by-laws can have no appreciable effect upon persons having no knowledge of their existence; and notwithstanding such officer may have no power to make contracts or conveyances under the private rules and regulations of the corporation, yet, as to strangers, without notice, it will be estopped to deny the power of its officers to per- form the specific acts.'^ As a matter of safety, however, where no authority specifically appears from the instrument itself or matter appended thereto, a requisition should be made for further information. Sometimes, where the testatum is silent, the acknowledgment will contain a recital of authority. In such cases copy the recital. Thus: Acknowledged * * * hy Albert Jones, as President of the Chicago and Western Badway Co., as the free and voluntary act of sadd Company, "pursuant to authority given hy the Board of Directors." § 257. Acts of Officers in Excess of Charter Powers. The ob- servations of the foregoing section suggest another thought before leaving this branch of our subject. It must always be borne in mind, in construing deeds of the character now under considera- tion, that a corporation is not vested with the capacities of a nat- ural person, but onlj' such as its charter confers,'® and that acts done in excess of the power so conferred are void, in the sense that they can have no effect to divest the corporation of any right in or to property belonging to it.®''' Every person attempting to contract with a corporation must,- at his peril, take notice of the seal of a corporation ia afiSxed to an 95 Life Ins. Co. v. White, 106 111. instrument together with the sig- 67. natures of the proper officers, that 96 Davis v. E. R. Co., 131 Mass. such officers did not exceed their au- 259. thority : Kansas v. R. R. Co., 77 Mo. 97 Martin v. R. R. Co., 8 Fla. 370 ; 185; MuUanphy Savings Bank v. Franco- Texan Land Co. v. McOormick, Sohott, 135 111. 655. 85 Tex. 416. § 258] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 285 legal limits of its capacity and of the powers conferred upon it by its charter.®* If the officers of a corporation have no power un- der the charter to make conveyances, or, having such power, can onlj' convey for special purposes, a deed showing such excess of power would not be binding on the corporation and all persons claiming through or under such deed would be affected with notice of every fact therein recited.'® But, if a corporation has power to make conveyances for a stated purpose, and its officers execute a deed reciting compliance with its charter powers, then, notwithstanding the recital may be false, a person ignorant of its falsity would probably take as an innocent purchaser and be protected. In such a case, as the conveyance would be within the apparent power of the agents of the corpora- tion the person receiving such deed, or one claiming under him, would be entitled to rely upon the 'express, or even the implied, representation that the facts existed which empowered them to execute the deed:^ § 258. Becord of Seal. In all the examples given in this chapter, the seals have been shown as they were appended to the original instruments, but not infrequently the defects of the record will render this impossible. "Where the seal has not been recorded, but only alluded to, the suggestion, as made upon the record, should be shown as it appears, thus: Seat is recorded, "Corporate Seal." If the record describes the seal such description should be copied . verbatim. "Where the seal is substantially shown on the record it should be reproduced in the abstract but literal conformity to shape" and arrangement will not usually be necessary. The following will suffice for an abstract of an ordinary corporate execution : Signed: CHICAGO S WESTERN RAILWAY GO. By ALBERT JONES, President. Attest: JOHN B. MORGAN, Secretary. Chicago & "Western Railway Co. 98 Elevator Co. v. E. E. Co., 85 cash but exchanged them for per- Tenn. 703. sonal property, notes and bonds, 99 Jemison v. Bank, 122 N. Y. 135; which fact was recited in the deed. Franco-Texan Land Co. v. McOor- BeU, that the deed was void upon mick, 85 Tex. 416. In this case the its face. corporation had power to sell its 1 Franco-Texan Land Co. v. Mc- lands for cash. It did not sell for Cormick, 85 Tex. 416. 286 ABSTRACTS OF TITLE. • [§ 258 The person taking the acknowledgment is bound to know the identity of the officers acknowledging and must so certify. He is not obliged, however, to certify the genuineness of the corporate seal. But sometimes, in certificates of this kind, he does so certify and when such is the case a brief allusion to such certification should be made. Thus: Certificate of acknowledgment hy Chas. Sampson, Notary Pub- lic, who certifies thai Tie knows the seal affixed to said deed to he the corporate seal of said Chicago and Western Railway Co. Should the record merely disclose a scrawl, then the scrawl may be shown with accompanying words, if any. In recording an in- strument purporting to be executed by a corporation, in the ab- sence of statutory requirements to the contrary, the corporate seal, if attached thereto, may, it seems, be represented by a scrawl, a fac simile of the seal or device not being absolutely necessary.* §259. Conveyances by Incorporated Religions Societies. The class of corporate conveyances to which allusion has been made in the preceding paragraphs are those executed by public corpora- tions or private corporations organized for business purposes. There remains, however, another class of private corporations which occupy, so far as regards their legal corporate existence, a peculiar position in commercial circles, and these are incorporated religious and kindred societies not organized for pecuniary gain. The legal title to the property held by these societies in their cor- porate capacity is usually vested in trustees, and conveyances by such societies are effected through the media of these trustees. More than ordinary care should be observed in abstracting such conveyances, and a number of the incidents that do not call for explicit mention in other deeds, must, in this class of instruments, be set out in full. The method of conveyance, if pointed out or prescribed by the statute, is of the essence of the deed, and where the abstract does not disclose a statutory compliance, it should be sent back to the examiner for further investigation. The sufficiency of a deed of this kind under the statute of Illinois — and the same requisites are essential in all other States whose statutes have been examined — requires that the individual names of the trustees should be inserted as grantors, with the addition of words descriptive of the character in which they act. 2 Illinois, etc., E. B. v. Johnson, 40 111. 35. § 260] SPECIAL CLASSKS OF INDIVIDUAL CONVEYANCES. 287 The granting clause should -witness that the said grantors, as trus- tees of, for, and by the direction of, the society for which they purport to act, for the consideration, do grant, bargain, etc. The attestation clause should be, that the said first parties, as such trus- tees, "have hereunto set their hands and seals," or their official style should be added to their signatures, and the instrument should be acknowledged by the individuals in their proper char- acter as trustees.' § 260. Heirs at Law. The unsatisfactory character of convey- ances purporting to be made by the heirs at law of a deceased person has already been shown. The recital in a deed that the parties making it are the heirs at law of a former owner is no evidence of the fact recited, except as against the parties to the deed and their privies. Where the abstract furnishes no infor- mation, other than that contained in the deed, to prove the char- acter of the parties, death of the ancestor, etc., a requisition should always be made by counsel for further information, which, unless a probate is had, usually consists of affidavits in support of the facts, made by persons who are supposed to be cognizant of them.* On the other hand, grave questions may arise from conveyances by third persons made in derogation of the rights of heirs. Par- ticularly will this be the case where said rights consist only of equities. Matters of this kind may not be disclosed by the ab- stract, yet will readily appear by inquiries in pais. For this rea- son counsel should always direct the attention of clients to the actual occupation of the land and the rights of the persons in pos- / session, if any. The possession of land by a person at the time of his death is prima facie evidence of ownership at the time, and a subsequent purchaser of the legal title will be conclusively pre- sumed to know that whatlever rights such deceased person had in the land, not disposed of by will,* and of an inheritable character, devolved on his heirs, and his possession being constructive notice of his rights at the time of his death, it becomes the duty of such purchaser to make all necessary inquiries to ascertain the extent of the interest of such heirs.^ 3 Lombard v. Sinai Congregation, for a deed died, and his widow upon 64 111. 477. payment of the sum due on the land, 4Yahoola, etc., Mining Co. v. Irby, procured the legal title to be made 40 Ga. 479. For a precedent of an to her, and then conveyed same to a affidavit of this kind see chap. 30. third person, who had notice of the 8 See ' ' Descents, ' ' infra. equitable title of the heirs. McVey 6 The above rule was applied in a v. McQuality, 97 111. 93. case where a person holding a bond 288 ABSTEACTS OP TITLE. [§ 261 §261. Post Obit Conveyances. The conveyance by an heir apparent of his expectancy in land owned by his living ancestor, which would descend to him if he survived his ancestor, and the latter should die intestate owning the same, is a conveyance of a mere naked possibility not coupled with an interest and passes no estate or interest in the land. Such a title cannot operate to defeat the grantor's own title afterward acquired by descent, except by way of estoppel, and, if the deed was without warranty, such grantor is not precluded from asserting an after-acquired title.'' But where a conveyance of this character is made with covenants of warranty, it will operate to pass the title by estoppel if the land descends to the heir.* § 262, Conveyances by Delegated Authority. Every deed exe- cuted by virtue and in pursuance of a power should bear upon its face a recital of authority, but deeds purporting to be the direct act of the grantor though performed by an attorney in fact are sufficiently formal if the execution and authentication affima- tively show the fact. It is therefore recommended that the de- scription of the parties grantor should, in all cases of delegated authority, be taken from the execution and not from the prem- ises, which as a rule, does not, and as a matter of correct form, should not, show the vicarious act. The recital of acknowledg- ment should also be drawn to show the substitution of persona. Aside from these two points the abstract of a deed executed by an attorney in fact differs in no material respect from one ex- ecuted by the grantor in personam. The points mentioned may be shown in this manner : John Smith, by William Strong, his attorney im fact, to James Robinson. Warranty Deed. Dated, etc. # * ^ * * Acknowledged June 1, 1882, by William Strong, as the act and deed of said John Smith. If desired, however, the abstract of the deed may be made in the usual manner, the caption reciting the name of the grantor 7 Hart V. Gregg, 32 Ohio St. 502; eome to him by descent, and same Boynton v. Hubbard, 7 Mass. 112. In was held to be void at law as well as this case a covenant was made by an in equity. heir to convey, on the death of his SEosenthal v. Mayhugh, 33 Ohio ancestor, if he should survive him, a St. 158; Bohon v. Bohon, 78 Ky. 408. certain undivided part of what should § 262] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 289 as found in the premises. In such case the execution may be shown as follows : Said grantor signs and acknowledges hy William Strong, his attorney in fact. Erroneous or imperfect execution or acknowledgment must be indicated in the manijer already pointed out. The instrument is properly and legally executed if it bears the name (signature) and seal of the grantor, showing the procurement of the attoi?ney and purporting to be the act of the principal; but in making the acknowledgment, the attorney, being the person who actually ex- ecutes the instrument, must acknowledge it; yet this he does as and for his principal. As to what constitutes a proper signing there is some conflict of authority, the earlier cases holding it to be immaterial whether the attorney sign "A, attorney for B," or "B, by his attorney A, " ' on the theory that no particular form of words is necessary to bind the principal, provided the agency of the attorney ap- pears from the deed itself.^** It is now well established, however, that a conveyance made by an attorney must be in the name of the principal, and purport to be executed by him,^^ and where the agent assumes either to grant or to execute, as where he signs and seals, although describing his office, the deed wiU be void as to the principal. ^^ It has also been held that signing the principal's name, but making no mention of the attorney, is not a valid ex- ecution.^' It would seem, therefore, that in all conveyances by at- 'torneys in fact, both the name of the principal and of the attor- ney must substantially appear in the execution of the deed, show- ing not only that the grant and seal are those of the principal, 9 Jones V. Carter, 4 Hen. & M. 184; ISPowler v. Shearer, 7 Mass. 14; Montgomery v. Dorion, 7 N. H. 475; State v. Jennings, 10 Ark. 428; Mc- Wilkes V. Back, 2 East, 142. Donald v. Bear River Co., 13 Gal. lOMagill V. Hinsdale, 6 Conn. 464; 235; and this, even though in the Worrall v. Munn, 1 Seld. 229. body of the instrument it is stated iiPensonneau v. Bleakley, 14 111. that it is the agreement of the prin- 15; ElweU v. Shaw, 16 Mass. 42; cipal by his attorney, and that the Thurman v. Cameron, 24 Wend. (N. principal covenants, etc., while in the Y.) 90; Stinchfield v. Little, 1 Me. testimonium clause it is alleged that 231; Hale v. Woods, 10 N. H. 470. A. B. (the agent), as the attorney of Less strictness is required where the the principal, has set his hand and instrument is not under seal, it being seal: Townsend v. Corning, 23 Wend, sufficient, in such case, if the intent 435. to bind the principal appears in any 13 Wood v. Goodridge, 6 Cush. 117. part of the instrument: Townsend V. Hubbard, 4 Hill (N. T.), 351. Warvelle Abstracts — 19 290 ABSTRACTS OF TITLE. [§ 262 but by whom these acts are done ; ^* and where there are two grantors, and one of them acts as the attorney in fact of the other, he must subscribe his name twice, once as attorney in fact for the other, and once for himself. One signature and a second seal is not equal to a second subscription.'^ It is not necessary, however, that any particular form of words should be used to render the instrument valid and binding upon the principal, provided it shows upon its face that it was in- tended to be executed as the deed of the principal, and that the seal affixed is his seal and not that of the attorney; and it has been held, that where a deed is executed for several parties, it is not necessary to affix a separate and distinct seal for each sig- nature if it appears that the seal afSxed was intended to be adopted as the seal of each of the parties.'^ § 263. Powers of Attorney. Immediately preceding or follow- ing the abstract of every deed purporting to have been made by the procurement of an attorney in fact, should appear the war- rant or power which authorized the act ; for an unauthorized deed would be void for aU purposes, and the proof of this power can only be shown by an instrument executed with aU the formalities necessary to a valid deed of conveyance. ''' The instrument usually recites the scope of the attorney's powers, yet even where it is deficient in some particular, others, which are necessary to the proper exercise of the powers expressly enumerated, will be im- plied as incidental thereto; as, where a power is expressly given to sell or lease the property of the principal, a power to contract to sell, as well as to convey and transfer, will be implied.'* The usual rule, however, is to construe instruments of this kind strictly ; hence, a power to "sell and convey," will not be extended by in- terpretation to include a power to mortgage, or otherwise to dispose of the property than by a sale and conveyance.'® The right of revocation, as a rule, is always reserved, but this is a right incident to the power given, and a principal may always revoke the authority of his agentf at his mere pleasure without a reservation of such express right, or even though the power may 14 See 3 Wash. Eeal Prop., *573, dark v. Graham, 6 Wheat (IT. S.) and cases cited. 577; Videau v. Oriffin, 21 Cal. 389. 15 Meagher v. Thompson, 49 Cal. 18 Hemstreet v. Burdick, 90 111. 189. 444. 16 Townsend v. Hubbard, 4 Hill (N. 19 Minnesota, etc., Co. v. McCros- Y.), 351. sen, 110 Wis. 316; Colesburg v. Dart, 17 Fire Ins. Co. v. Doll, 35 Md. 61 Ga. 620; Hawxhurst v. Rathgeb, 89; Watson v. Sherman, 84 111. 263; 119 Cal. 531. § 263] SPECIAL CLASSES OF INDIVIDUAL CONVEYANCES. 291 be expressly declared to be irrevocable.^" The only exceptions to this rule are when the authority or power is coupled with an interest or where it is given for a valuable consideration, or where it is part of a security, in all of which eases it is irrevocable, whether so expressed or not.^^ As before remarked, powers of attorney must be strictly con- strued, yet the rule does not require a construction that will de- feat the manifest intention of the parties, and where such inten- tion fairly appears from the language used, it must prevail,^^ but the authority can not be extended beyond that which is clearly given in terms, or which is necessary and proper for carrying the authority given into full execution.^^ In this respect there is a marked difference as compared with powers of appointment created by deeds and wills, and powers introduced in connection with uses. The formal requisites to be observed, apart from such as are inci- dent to all sealed instruments, are the constituent words, which are "make, constitute and appoint;" the powers delegated; the reservation of the right of revocation, and the power of substitu- tion, if any is given.** The recital of the power always calls for minuteness in transcription, and when coupled with an interest or created upon a valuable consideration, it should be rendered with literal fidelity. The arrangement of the synopsis is much the same as other grants. An example is appended: John Sfwith "I Power of Attorney. to y Dated, etc. William Strong. First party makes, constitutes and appoints second party his true and lawful attorney, for Mm and in his name, place and stead, 20 Walker v. Denison, 86 111. 142; tliorize a sale of the individual prop- Brown V. Pforr, 38 Cal. 550. erty of either, or at least in the ab- 21 Walker v, Denison, 86 111. 142; sence of proof of the non-existence Gilbert v. Holmes, 64 111. 548; Brown of .ioint property: Dodge v. Hopkins, V. Pforr, 38 Cal. 550. 14 Wis. 630. 2ZHemstreet v. Burdiek, 90 111. 24 Where the authority of the at- 444. torney is to execute deeds of con- 23 Pool V. Potter, 63 111. 533. Hoyt veyance the power, as a rule, cannot V. Jaques, 129 Mass. 286; Gilbert be delegated. Where it relates to T. How, 45 Minn. 121. Thus, a power other matters it is often permitted of attorney jointly executed by hus- to be exrcised by persons whom the baud and wife for the sale of all their attorney may appoint or substitute property, and in which the words, for himself and to such persons the "we," "ours," etc., are exclusively attorney may entrust the same or used, has been held ins\ifS.oient to au- more limited powers as are given to 292 ABSTEACTS OF TITLE. [§ 263 to [here follows the special purpose of the power, literally ren- dered] . Full power of substitution and revocation. Acknowledged, etc. An unexecuted power, if still subsisting, should, as a rule, be set out in full, though many examiners show such instruments only by way of note. This latter method may be resorted to with propriety only in a few instances, and unless there has been an implied revocation, as where the constituent has afterward made conveyance himself, or where there has been an expiration by lim- itation, or some other circumstance of like character, such a course is not recommended. The following will serve to illustrate the method : Note. — In Book 20, page 168, we find recorded a power of at- torney from Thomas J. Walsh to Austin Bieriower, au- thorizing him to sell and convey the North East quarter of Section 13, aforesaid (and other property), hut as no action (appearing of record) has teen had under said power (as regards the premises in question) we do not show it herein. § 264. Revocations. The recall of a power or authority con- ferred, or the vacating of an instrument previously made, is called a revocation.^^ A power of attorney may be revoked in a variety of ways ; as by the death of the principal, which operates as a revo- cation of every power uncoupled with an interest ; ^^ the marriage of the principal, the power having been given while he was a sin- gle man ; ^"^ an adjudication in bankruptcy ; or a conveyance by the principal of the subject-matter of the power before the agent has had an opportunity to dispose of it.^* But the giving of a second power to another agent, withotit specially revoking the first, would not act as a revocation, and if either power is executed, both will be exhausted.^^ In the foregoing instances, the revocation occurs by operation of law. The principal may revoke by a special instrument of i-evocation, which, when recorded with the power, will operate as constructive notice of such fnct. An unexercised power, followed by revocation, sheds no light on the title, and may, him by the principal. If the letters Z7 Henderson v. Ford, 46 Tex. 627. contain no powers of substitution this 28 Walker v. Denison, 86 111. 142. cannot be done. 29 Oushman v. Glover, 11 111. 600. 26 2 Bou. Law Diet., 477. 26 Blayton v. Merrett, 52 Miss. 353 ; Davis V. Savings Bank, 46 Vt. 728. § 265] SPECIAL CLASSES OF' INDIVIDUAIi CONVEYANCES. 293 with propriety, be disregarded, but if it should be deemed desirable to show same, a brief mention among the appendices would seem to be all that is required. Should the examiner desire to show the transaction in regular course it should be treated much in the same manner as a satisfied mortgage, that is, the power should be exhibited in brief terms in its proper place and the revocation should immediately follow. This would be a sufficient reference to the revocation: John Smith to William Strong. Revocation. Dated, etc. Sets forth the execution of the power of attorney shown as No. 10, ante, and countermands and revokes same, and all power and authority thereby given to said William Strong. Acknowledged, etc. It is important that sufficient evidence should always be pro- vided as to the continuance of a ppwer at the time of its exercise. An unrevoked power duly recorded furnished sufficient evidence as far as it goes, but unless the abstract also discloses the fact that the principal was living at such time, or had not been subjected to the disability of bankruptcy or other disqualifying cause, pru- dence would suggest that an inquiry in pais be made to ascertain such facts. If the examiner is personally cognizant of the fact that a donor of a power of attorney was alive at the time of the execution of the power he may, if so disposed, testify to this fact. This may be accomplished by a note as follows : Note. — To my knowledge, John Smith, the grantor named in the foregoing deed, was alive on August 1, 1902. This course is purely optional with the examiner, but it will often be of great service to counsel. §265. Conveyances in Trust, Trust deeds were formerly of very common occurrence, but are now rarely employed, save in a few States where mortgages are made in that form. TheJ'^ were used to convey the beneficial interest to persons who were incapa- ble of holding the legal title, or in whom it was not desirable to have the legal title vest. With the gradual disuse of uses and trusts in some States, and their summary abolition in others, con- 294 ABSTRACTS OF TITLE. [§ 265 veyances of this character have become infrequent, while no estate or interest, legal or equitable, will ve^t in the trustee under the statutes of some of the States, but the beneficiary takes the entire legal estate of the same quality and duration, and subject to the same conditions as his beneficial interest."* The character of the instrument, as well as its effect, may be readily determined by inspection ; if it imposes on the trustee active duties with respect to the trust estate, such as to sell and convert into money, or to lease the same and collect the rents, pay taxes, etc., and to pay the net proceeds to the beneficiary, it creates an active trust which the statute does not execute,'^ but if there is simply a conveyance to the trustee for the use of, or upon a trust for, another, and nothing more is said, the statute immediately transfers the legal estate to the use, and no trust is created, al- though express words of trust are used. When conveyances in trust are allowed, the nature, quality and extent of the trust should be very explicitly stated ; while in States where only a few enumerated express trusts are recognized, every part of. the instrument necessary to bring it within one of the classes named in the statute must be shown. The trust is ordinarily sufficiently disclosed by the recitals of the habendum, but where there is a power of appointment, and certain reservations for vari- ous purposes, a very full synopsis of every part of the deed will be absolutely necessary for a proper understanding of it. In the latter ease there should be shown the special matter of inducement 30 Witham v. Brooner, 63 111. 344 ; for the benefit of any married woman, Both V. Miehalis, 125 Md. 325. This or for any of the purposes and within applies more particularly to ' ' dry ' ' or the limits of the statute prescribing passive trusts. Express trusts are the nature and quality of the es- still generally permitted to be created tates. for the following purposes: 5. For the beneficial interests of 1. To sell lands for ihe benefit of any person or persons, when such creditors. trust is fully expressed and clearly 2. To sell, mortgage, or lease defined upon the face of the instru- lands for the benefit of legatees, or ment creating it, subject to the limi- for the purpose of satisfying any tations, as to the time and the ex- charge thereon. ceptions thereto, relating to literary 3. To receive the rents and profits and charitable corporations, pre- of lands and apply them to the use scribed by the statute. of any person during the life of such Trusts resulting from implication person, or for any shorter term, sub- of law are always recognized, but the jeet to the rules prescribed by the doctrine has been very much eircum- statute fixing the quantity and dura- scribed, as described in the preceding tion of estates. chapter. 4. To receive the rents and profits 31 Kirkland v. Cox, 94 111. 400 ; of lands and to accumulate the same Kellogg v. Hale, 108 111. 164. § 266] SPECIAL CLASSES OP INDIVIDUAL CONVEYANCES. 295 as recited in the premises ; the grant ; the habendum ; the reserva- tion, explicitly rendered ; the enumeration of the trusts and powers, and the power of appointment, or successor in trust, if named. No particular form of words is requisite to create a trust, the intent only being regarded by courts of equity,** yet the habendum usually makes a formal recital after the preliminary words "to have and to hold," et'., by continuing, "in trust nevertheless," or some similar express:^on. These words, however, are not essen- tial and trusts must, in all cases, be construed according to the intention of the parties as gathered from the entire instrument.** Thus, when a gift is expressed to be for the "use and benefit" of another, or "to the end" that the donee shall apply it to certain purposes, this will be sufficient to raise a trust in such donee.** Where a trust is intended by a conveyance, but fails entirely, so that the grantee takes no estate in the land under the conveyance, it may nevertheless create in him a valid power in trust,** the legal title remaining in the grantor.*® Where the deed creates a valid trust, the entire estate vests in the trustee, subject only to the ex- ecution of the trust, except as otherwise provided; and where the deed gives a^ power of sale to the trustee at the request and for the benefit of the beneficiary under the deed, no power of revo- cation being reserved, no estate in the premises is left in the grantor which is capable of being transferred.*'' Where the legal title is vested in a trustee, nothing short of reconveyance can place the same back in the grantor or his heirs, but under certain cir- cumstances such reconveyance will be presumed without direct proof of the fact.** Trust estates are subject to the same rules as legal estates in every case, dower excepted.** § 266. Revocation of Trust. It is competent, in some cases, for the settler of a trust to reserve a right to revoke the same, and such' reservation is not inconsistent with a valid trust. The re- served power to revoke does not operate to destroy the trust, which remains absolute and efifectiTe until the right is exercised, and if it is not exercised during the lifetime of the grantor the trust re- SaPigher V. Field, 10 Johns. 494. 37 Marvin v. Smith, 46 N. Y. 571; 33 Kerr V. Verner, 66 Pa. St. 326; Leonard v. Diamond, 31 Md. 536. Gnion v. Pickett, 42 Miss. 77. sSKirkland v. Cox, 94 lU. 400; re- 84 Randolph v. Land Co., 104 Ala.' versing 81 111. 11; 80 111. 67. 355. SSDanforth v. Lowry, 3 Haywood 35 Fellows V. Heermans, 4 Lans. (N. (N. C), 68. Y.) 230. 38 This is now the general statutory doetiine. 296 ABSTRACTS OF TITLE. [§ 266 mains as though there had never been a provision for revocation.*" Where an instrument of this character is found, and the trust is unexecuted, the reservation should be copied in full. § 267. Declaration of Trust. To establish an express trust, the evidence must all be in writing, and sufficient to show that there is a trust, and what it is,*^ but where land has been conveyed by a deed absolute in form, if designed simply for a holding in trust, the grantee may make a valid admission of the trust in a separate instrument.*^ Such instruments are known as "declarations of trust," and, unless required by statute, need not be by deed, but any writing subscribed by the trustee will be sufficient if it contain the requisite evidence.** Although it is not -essential that the writing by which the trust is manifested and proven should be in any particular form, it is customary- for the trustee to declare same in a formal document, reciting the matter of in- ducement, declaring the nature of the trust estate, and frequently covenanting against his own acts, and for conveyance to the ben- eficiary. Whatever may be the form of the instrument, the nature and quality of the trust declared, and the terms and conditions upon which it is held, should sufficiently appear to show the full intention of the parties as manifested by the instrument. An illus- tration is herewith given: Andrew Baxter, Trustee, to Whom it may concern; Declaration of Trust. Dated, etc. * * * * Recites, that Charles Den- ton, by deed bearing even date herewith, in consideration of $1,500.00, conveyed to said first party in fee simple the following described lands, to wit: [describing same] as by .said deed will more fully appear. And that said fi/rst 40 Lines v. Lines, 142 Pa. St. 149 ; 43 Cook v. Barr, 44 N. Y. 156. By Van Cott V. Prentice, 104 N. Y. 45; the English statute of 29 Charles II, Nichols T. Emery, 109 Cal. 323. Chap,. 3, §7, it was enacted "that 41 Cook V. Barr, 44 N. Y. 156; all declarations or creations of trust Steers v. Steere, 5 Johns. Ch. 355; or confidence of any lands, tenements 1 Green. Cruise, 335. But this does or hereditg.ments, shall be manifested not apply to resulting trusts, which or proven by some writing signed 'by may be established by parol: Faris the party who is by law enabled to V. Dunn, 7 Bush (Ky.), 276; Mc- declare such trust, or by his last will Ginity v. McGinity, 63 Pa. St. 38. in writing, or else they shall be ut- 42 Elliott V. Armstrong, 2 Blackf . terly void and of none effect. ' ' This 198; McLaurie T. Partlow, 53 111. 340; statute provided, not for the crea- Cook V. Barr, 44 N. Y. 156; Fast v. tion of trusts, but for proving them, McPherson, 98 111. 496; or by the and is the basis of American statutes pleadings in a chancery suit: Ibid. on the same subject. Though a trust § 268] SPECIAL CLASSES OF INDIVIDUAL CONYETANCES. 297 party has "this day" executed and delivered to sand Charles Den- ton a mortgage upon said premises, as collateral security for the payment of his iond for the payment of $1,000.00 [stating the terms] 'being part purchase money expressed in said deed. Therefore, said first party, makes known, and declares, thai said premises so conveyed to him, he noiv holds, and will continue to hold, in trust only, for the use and benefit of George Zeigler, son and, heir at law of Henry Zeigler, deceased, and that he has no beneficial interest therein, except what may arise by legal or equitable implication from the circumstances attending the execu- tion of said mortgage. Said first party further admits that the residue of the consid- eration money expressed in said deed to him, to wit: the sum of $500.00, was padd by William Zeigler, for the benefit of saAd George Zeigler. And said first party covenants to and with said William Zeigler and George Zeigler, that he will convey said premises by "good and sufficient" deed, to said George Zeigler, or his assigns, as he or they may direct, whenever and as soon as said mortgage shall have been paid off and discharged, or otherwise fully secured to said first party, and that free, clear and discharged from all and every inciim^brance therein by said first party. First party further covenants against his own acts. §268. Removal or Substitution of Trustees. Where a trustee is dead, the trust being still alive and unexecuted, a court of equity will carry it out if necessary, through its own officers and agents,** and may appoint a new trustee,** and it seems that in some States, even where the trust deed contains a power of ap- pointment, in the event of the death of the trustee without ex- ecuting the trust, the cestui que trust can not appoint a new trus- tee, but the exercise of this right devolves exclusively on a court of chancery.*^ A trustee may always be removed in the discre- tion of the court upon proper cause shown.*'' of lands can not be established- by 46 Guion v. Pickett, 42 Miss. 77. parol, yet if the trustee execute the As a general rule, a court of ehan- trust, he is bound by the act. eery has jurisdiction to control the MBatesville Institute v. Kauffman, exercise of the power of appointment 18 Wall. 120. It is a rule in equity, when vested in an individual so far, that a trust shall never fail for want at least, as to prevent an abuse of of a trustee: Buehan v. Hart, 31 Tex. discretion: Bailey v. Bailey, 2 Del. 647. Ch. 95. 48 Curtis V. Smith, 60 Barb. 9; 47 Att 'y-Gen. v. Garrison, 101 Mass. Hunter v. Vaughan, 24 Gratt. (Va.) 223; Ketchum v. E. E. Co., 2 Woods, 400. ' 532 ; Scott v. Eand, 118 Mass. 215. 298 ABSTRACTS OF TITLE. [§ 269 § 269. Resignation — Refusal to Act — Successor. A trustee can not divest himself of the obligation to perform the duties of his trust without an order of court, or the consent of all the cestwis que trust, '^^ and 'where he refuses to act, equity will compel him to do so, or appoint a suitable person in his place.*® It is cus- tomary, however, in some classes of trust deeds, to appoint a suc- cessor in trust, in the event that the trustee becomes disabled or refuses to act, and where a deed contains an appointment of this kind it is always well to show it. If the trust is, in fact, executed by the successor, the original appointment must be shown. This will often occur in cases of trust deeds in the nature of mortgages. 48 Thatcher V. Candee, 4 Abb. App. 49 Sargent v. Howe, 21 111. 148; Dec. (N. T.) 387; Cruger v. Halli- Wilson v. Spring, 64 111. 14. day, 11 Paige (N. T.), 314. CHAPTER XVII. OFFICIAL CONVEYANCES. §270. Defined and distinguished. §283. § 271. Official deeds generally. §272. Eecitals. ' §284. § 273. Covenants. § 285. §274. Sheriff's deed — On execu- §286. tion. § 287. §275. Continued — Acknowledgment. §288. § 276. Continued— Operation, effect. § 289. § 277. Continued — Imperfect descrip- tion. § 290. § 278. Statutory sheriff 's deeds. § 291. §279. Sheriff's deed— Under decree. §280. Masters', commissioners', and §292. referees' deeds. § 281. Trustees. §282. Transfers of the legal estate by trustees. Power of sale and trust of sale distinguished. Trustees' deeds. Mortgagees' deeds. Executors and administrators. Executors ' deeds. Administrators ' deeda. Administrator with will an- nexed. Guardians' deeds. Trustees can not become pur- chasers. Continued — Qualifications of the rule. §270. Defined and Distinguished. Official deeds comprise all those forms of conveyance wherein the maker acts by virtue of an office and nol; in his individual or personal capacity. They cover a wide portion of the field of conveyancing and assume a variety of shapes, but may be reduced to two general classes, viz.: those made in a fiduciary capacity, as the deeds of trustees, executors, etc. ; and those made in a ministerial character, as the deeds of sheriffs, ^commissioners, masters, etc.^ The rules for construing deeds are much the same, whether the deed be made by a party in his own right, or by a fiduciary or officer of the court.^ § 271. Official Deeds Generally. It is the policy of the law to invest the sheriff, master in chancery, administrator, or other offi- cer making sales of real estate in a purely ministerial capacity, with only a mere naked power to sell such title as the debtor, deceased person, etc., had, without warranty, or any terms, except those 1 For a further discussion of ihe subjects of this chapter, the reader is referred to the chapters, "Execu- tion and Judicial Sales," '^Chancery Proceedings, " " Judgments and De- crees" and "Probate Proceedings and Descents." 2 White V. Luning, 93 U. S. 515. 299 300 . ABSTRACTS OP TITLE. [§ 271 imposed by law. Hence purchasers at such sales assume the risk of the title, as well as the validity of the, proceedings under which the sale is made.^ The power to sell lands, however conferred, must, as a rule, be strictly pursued, otherwise the sale will be void and no title will pass,* and a deed which shows on its face an ex- cess of authority in the officer executing it, will not be sufficient to sustain the title of one claiming under it.* Much detail wiU fre- quently be required in the abstract of an instrument of this char- acter, which should show substantially aU the material parts of the deed, including the recitals necessary to a full compliance with the law, even though the instrument may seem at times to be unreasonably long. A judicious condensation, where the full spirit of the original is retained, may be observed to good purpose, and the labor of examiner and counsel be thereby perceptibly lightened, but, in a matter of this kind, it is better to err by inserting too much than too little. § 272. Recitals. It is customary, and in many cases necessary, to show all the material recitals in official deeds, notwithstanding that such recitals are regarded only as matters of inducement ; ^ but w;here the form of a deed is prescribed by statute they become substance '' and must always be shown or indicated in some man- ner. The main reason why such recitals should be shown, arises from the fact that they are usually regarded as evidence against the grantee and those claiming under him,* and as to such parties are conclusive.* The recitals are further regarded as presumptive evidence of the facts stated,^' and will prevail until the contrary is shown. These remarks, however, have reference more to min- isterial officers than to fiduciaries. The recitals in the deeds of the latter are material to show a due execution of the powers given. 3 Bishop V. 'Connor, 69 111. 431. 6Leland v. Wilson, 34 Tex. 79; 4 King V. Whiton, 15 Wis. 684; Poulk v. Coburn, 48 Mo. 225; War- White V. Moses, 21 Cal. 44. ner v. Sharp, 53 Mo. 598; Jones v. 6 G. B. & M. C. Co. V. Groat, 24 Scott, 71 N. C. 192. A clerical error Wis. 210; French v. Edwards, 13 in the recitals is not to be regarded Wall 506. The deed in this case in equity: Stow v. Steele, 45 111. 328. was by a sheriff under a judgment 7 Atkins v. Kinman, 20 Wend. 249. for taxes. The deed recited the sale 8 French v. Edwards, 13 Wall. 506;., of the property to the highest bid- Fisk v. Frores, 43 Tex. 340; Lamar der, when he was authorized by the v. Turner, 48 Ga. 329. statute only to sell the smallest quan- 9 Curette v. Briggs, 47 Mo. 356; tity of the property which any one Pringle v. Dunn, 37 Wis. 449; Eob- would take and pay the judgment ertson v. Guerin, 50 Tex. 317. and costs, and was held void on its 10 Chase v. Whiting, 30 Wis. 544. face. § 274] OFFICIAL CONVEYANCES. 301 § 273. Covenants. There are no implied covenants in official deeds,^^ but where express covenants are inserted they have been held to bind the officer personally. ^^ Sometimes the deed will con- tain what is known as the "trustee covenant," which is to the effect that the vendor has done no act to encumber the estate. If express covenants of any kind are made they should be shown in the abstract. § 274. Sheriff's Deed — On Execution. A sheriff's deed made in pursuance of a sale on execution must be to the person to whom the certificate of purchase was issued or to his assignee, and if the deed is niade to another, though it recites that he is the assignee of the certificate, it is a nuUity if, in fact, the certificate was not assigned.^* It would seem, therefore, that in case of an assignment the certificate thereof should affirmatively appear of record or its absence be noted as a substantial defect.^* To establish a title to land under a sheriff's sale on execution all that is necessary to be shown as a general rule, is a valid judg- ment, or, as has been held, a judgment by a court of competent jurisdiction, no matter if it be erroneous on its face ; ^^ execution duly issued;^® and a sheriff's deed.^'' But in all cases the judg- ment is the foundation of the title,^* and proof of such judgment is indispensable to its validity. ^^ As the sheriff is only the ex- ecutor of a naked power it is necessary that his deed should show substantial compliance with the terms creating the power as well as its proper execution, yet the recitals of a sheriff's deed, as a general rule, are to be regarded only as inducement,^'* and where 11 Webster v. Conley, 49 111. 13. ner v. Bberhart, 82 111. 316), yet, as liSProuty V. Mather, 49 Vt. 415; a precautionay measure, it is always Sumner v. WiUiams, 8 Mass. 162; well to display these facts in the ab- Mitehell v. Haven, 4 Conn. 485; Aven straet. V. Beokom, 11 Ga. 1; Craddock v. 15 Mayo v. Foley, 40 Gal. 281; and Stewart's adm'r, 6 Ala. 77; Magee see Den v. Taylor, 16 N. J. L. 532. V. Mellon, 23 Miss. 586. 16 Fischer v. Eslaman, 68 111. 78; IS Carpenter v. Sherfy, 71 111. 427; Den v. Despreaux, 12 N. J. L. 182. compare Bowman v. Davis, 39 Iowa, IT Riddle v. Bush, 27 Tex. 675; 398. Hughes v. Watt, 26 Ark. 228; Splahn 14 Where there has been an assign- v. Gillespie, 48 Ind. 397; Lenox v. ment of the certificate of sale the re- CSark, 52 Mo. 115. cital in the sheriff's deed of such cer- 18 Atkins v. Hinman, 2 Gilm. (111.) tificate and assignment is evidence 437; Leland v. Wilson, 34 Tex. 79; of their existence, and after the exe- Todd v. Philhour, 24 N. J. L. 796. eution of the deed such certificate 19 Carbine v, Morris,. 92 111. 555. and assignments thereof cease to be 20 Leland v. Wilson, 34 Tex. 79. essential muniments of title (Gard- 302 ABSTRACTS OF TITLE. [§ 274 the deed substantially complies with the statutory requirements, it is not invalidated by ambiguous recitals or omissions which do not mislead.^^ It is said that the statute requiring recitals in a sheriff's deed was not intended to make deeds void which do not contain them, but was only intended to make the recitals evidence of the facts recited; and when such recitals are full, they dispense with the necessity of introducing the judgment and execution in evidence. So far as such a statute requires recitals beyond what are necessary to show the authority of the officer to sell, it is merely directory ,2* and where the deed discloses sufficient to show the authority to sell, even though the particular judgment and execution be not recited, so long as it appears to be by virtue of a judgment and execution, the sale and conveyance will be valid, if, at the time of such sale, the sheriff had in his hands a valid execution.^^ Defects of form are leniently regarded, and the instances are very rare, observes Mr. Freeman, "in which a deed, issued in pursuance of an execu- tion or chancery sale, is void for errors, defects or mistakes in form. "2* 4 Where a deed alone is relied upon it must show upon its face the officer's authority as well as all other essential requirements of a valid sale,^* but it may always be aided by the return on the execution,^^ and where the judgment and execution are both shown omissions in the deed are generally immaterial, provided the de- ficiency is supplied by the writ and return.^'' §275. Continued — ^Acknovfledgment. Unlikei voluntary con- veyances between individuals, it is essential to the validity of a sheriff's deed, for land sold by him under an execution, that it should have been legally acknowledged. It is true that a sheriff's deed gives the vendor an inceptive interest in the land, but he has no right to enter, and no claim upon the property, as against the former owner, until after the deed is acknowledged; The prop- erty is conveyed against the will of the judgment debtor; the con- 21 Allen V. Sales, 56 Mo. 28; Jones 21 Freeman, Void Jud. Sales, §45. V. Scott, 71 N. C. 192; Loomis v. Ei- The deed, however, must be what it ley, 24 111. 307; Keith v. Keith, 104 purports to be, hence a deed lacking 111. 397. a seal conveys no title: Hinsdale v. 28 Clark V. Sawyer, 48 Cal. 133; Thornton, 74 N. C. 167; Kruse v. Jordan v. Bradshaw, 17 Ark. 106; Wilson, 79 111. 233. Holman v. Gill, 107 111. 467. 26HiU v. Reynolds, 93 Me. 25. 23 Jones V. Scott, 71 N. C. 192; 26 Welsh v. Joy, 13 Pick. (Mass.) Qark v. Sawyer, 48 Cal. 133; Perkins 477; Stinson v. Eoss, 51 Me. 556. V. Dibble, 10 Ohio 443. 27 Hayward v. Cain, 110 Mass. 273. §276] OFFICIAL CONVEYANCES. 303 veyance is not his act, biit the act of the law ; and the law, when aclmowledgment is requisite, must be strictly complied with.^^ "Where the acknowledgment is defective the deed is not aided by record.^® Proof of official character is rarely necessary, however, for the law recognizes such officers as sheriffs and deputy sheriffs, and instruments executed by them in the course of their official duties are usually sufficient in themselves to prove that they were the officers, in fact and in law, which by their acts they profess to be.30 §276. Contimied — Operation and Effect. A sheriff's deed is prima facie evidence that the grantee holds all the title and in- terest in the land that was held by the judgment debtor at the time of the rendition of the judgment, and operates back, by rela- tion, to the date of such rendition so as to extinguish all rights and equities in and to the premises derived from the judgment debtor in the meantime.*^ And not only the entire interest of the judg- ment debtor passes by the deed, but also such covenants of title as run with the land.*^ If made to a iona fide purchaser, and regular in itself, it is effectual as a conveyance, and can not be impeached in any collateral proceeding for mere irregularity, in any of the proceedings, judgment, execution or return.^' It will operate against the judgment debtor by estoppel, and he will be precluded from setting up an outstanding title to avoid the sale by the sheriff, or to deny the title thereby acquired by the purchaser.^* As an exception to this rule, it has been held, that if, after the sale, the judgment debtor abandons the land, and afterward returns to it, and is sued in ejectment, he may show 28 Ryan V. Carr, 49 Mo. 483; Adams 83 Landets v. Brant, 10 How. 371; V. Buchanan, 49 Mo. 64. But see Draper v. Bryson, 17 Mo. 71 ; Maurior contra, Stephenson v. Thompson, 13 v. Coon, 16 Wis. 465. 111. 186, where it is held that the 34 Matney v. Graham, 59 Mo. 190; deed may be proved by other evi- Eeid v. Heasley, 2 B. Mon. (Ky.) dence, and though unacknowledged it 254; Jackson v. Bush, 10 Johns. 223; is still valid. Jackson v. Hagaman, 1 Wend. 502; 29 Samuels v. Shelton, 48 Mo. 444. Gould v. Hendrickson, 6 lU. 599. But SOOchoa V. Miller, 59 Tex. 460. , see Kenyon v. Quinn, 41 Cal. 325, ■ 81 Shields v. Miller, 9 Kan. 390 ; where it is held, that a statutory pro- White V. Davis, 50 Mo. 333 ; Ferguson vision to the effect that a conveyance V. Miles, 3 Gilm. (111.) 358; Miller of land in fee simple shall convey V. Wilson, 32 Md. 297; Kirk v. Van- the legal estate afterward acquired by berg, 34 111. 440. the grantor, has no application to a 82 Whiting v. Butler, 29 Mich. 122; sheriff's deed made under execution White V. Whitney, 3 Met. 81; Leport sale, v. Todd, 32 N. J. L. 124. 304 ABSTRACTS OF TITLE. [§ 276 an outstanding title, provided he also shows that he has taken pos- session and holds under it, and the same rule applies to a pur- chaser holding under the judgment debtor or defendant in ex- ecution.^* The recording of a sheriff's deed operates as constructive notice only to those who hold or claim under the judgment defendant; strangers, and those claiming under an independent or hostile title, are not affected thereby .^^ §277. Continued — Imperfect Description. The only remedy for a false description in a sheriff's deed is to obtain a new deed in the court whence the process issued. Equity will not aid the imperfect execution of a statutory power.^'' It follows, therefore, that if the description fails to show with certainty what property was in fact sold, or if in order to ascertain such fact it becomes necessary to institute an extraneous inquiry, the deed is void '* and no title will pass thereunder. It would seem, however, that the rule will not prevent the correction of a sheriff's deed where the grantee, through mistake, has been erroneously described if the execution and all proceedings under it are regular. ^^ Where the deed has been lost before registration, the officer may, it seems, execute a substitute.*" § 278. Statutory Sheriff's Deeds. To overcome the consequence of mis-recitals, prevent collateral impeachment, and give the full desired effect of conveyances by the sheriff, the legislatures of a majority of the States have prescribed certain forma of official deeds and declared their legal effect. As in case of statutory forms of official deeds between individuals, these instruments contem- plate but little verbiage, the statute supplying what was formerly obtained by long and technical recitals. Only enough matter of in- ducement is given to identify the judgment, execution, and sale, and 36 Gould V. Hendrickson, 96 111. 599. Jaekson v. Delancey, 13 Johns. (N. 36 Gardner v. Jaques, 42 Iowa 577. Y.) 536; C?unningham v. MeCollum, 37 Ware v. Johnson, 55 Mo. 500. 98 Ind. 38. But where a sheriff executed a deed < 39 See, Spaulding Mfg. Co. v. Gold- at the proper time, but omitted to bold, 92 Ark. 63, 121 S. W. 1063, 92 affix a seal or scrawl thereto, the sue- L. R. A. (N. S.) 282. In this case cesser of the sheriff executed another a partnership, instead of the indi- deed in proper form, and it was held vidual members thereof, was by mis- that this subsequent deed would re- take named as grantee, late back to the date of the first one : 40 McMillan v. Edwards, 75 N. C. Kruse v. Wilson, 79 111. 233. 81. 38 Evans v. Ashley, 8 Mo. 177; ' §278] OFFICIAL CONVEYANCES. 305 to show the authority of the officer, while the granting portion is confined to the fewest legal essentials. The deed, in itself, is little else than an abstract, and contains scarcely anything that must not also be shown in presenting a synopsis of it. The example which follows is an abstract of the form now in use in Illinois, but which, so far as the observation of the writer has gone, differs but slightly from those now employed in other States. Seth Eanchett, Sheriff of Cook County, lU., to William B. Denton. Sheriff's Deed. Dated, etc. Recites that whereas, A. B. did, at the May term of the Circuit Court of Cook County, 1880, recover a judgment against C. D. for the sum of $100.00,^^ and costs of suit, upon which an execu- tion was issued dated June 2, 1880, directed to soAd sheriff to execute, hy virtue of which the said sheriff levied upon the prem- ises'^^ hereinafter described; and the time and place of the sale thereof having been duly advertised according to law, the same were struck off and sold to William B. Denton, he being the highest and best bidder therefor. Therefore, said sheriff, in consideration of the premises, conveys to said second pa/rty the following described parcel of land [de- scribing the same]. Acknowledgment. The legal effect of this brief deed, as declared by statute, is to convey to the grantee therein named, all the title, estate, and in- terest of the person against whom the execution was issued, of every nature and kind, in and to the lands thereby conveyed, but implies no covenants on the part of the officer executing same. It is further prima facie evidence that the provisions of law in 41 A statutory provision wliieh pre- scribes the form of a sheriff's deed, so far as it requires the amount of the judgment to be inserted in the deed, is merely directory. It is suf- ficient if it clearly appears, that the deed is made by the officer in his official capacity, and in consumma- tion of the legal proceedings upon which it is founded with such refer- ences to the proceedings themselves that they may be readily found and Warvelle Abstracts — 30 identified: Holman v. Gill, 107 111. 467. 42 This word, although erroneously employed, is the one generally pre- scribed by statute, and, when such is the case, should be shown in the abstract as found in the deed. It is only another illustration of the care- less and bungling manner in which legal terms and phrases are some- times employed by the law-makers. 306 ABSTRACTS OF TITLE. [§ 278 relation to the sale of the property for which it is given were complied with ; and in case of the loss or destruction of the record of the judgment, or of the execution or levy thereon, is prima facie evidence of the recovery and existence of the judgment, and of the issuing and levy of the execution as therein recited.*' The abstract of a title acquired by a sheriff's deed should con- sist, in order to show its full and proper devolution, of a synopsis of the judgment recovered with note of the issuance of execution; the certificate of levy, where this is used, or the return on the ex- ecution; the certificate of sale, and finally the sheriff's deed. Prac- tical examples of these several steps will be found, under proper headings, in other parts of this work. § 279. Sheriff's Deed — Under Decree. Though a master, com- missioner or referee is the medium through which a court of chan- cery ordinarily executes its decrees, the duty not infrequently de- volves upon the sheriff either by virtue of his office or through spe- cial appointment. While acting under a decree he occupies the same position as a commissioner, and is but a ministerial officer of the court, to whom he must make reports of his acts and by whom they must be confirmed before conveyances can be lawfully made.** His deed, like a master's, recites his authority, details his acts, and takes effect as a conveyance in the same manner.*^ § 280. Masters', Commissioners' and Referees' Deeds. The con- veyances of a master in chancery, commissioner, or referee, differ in no material respect from those of a sheriff acting under a decree, the power exercised being the same in each instance, and the prin- ciples which govern the one operating with equal force upon the others. Like the conveyances of the sheriff, their deeds are with- out warranty, or any terms except those imposed by law, and they convey only such titles as the defendant possessed. The recitals of this class of deeds are usually long and verbose and should be judiciously condensed by the examiner to show all that is material in as few words as possible. The special formal parts are those which relate to the title and authority of the officer, and the re- citals showing a due compliance with the decree. In the abstract the deed immediately follows the court proceedings and certifi- cate of sale, and may be shown briefly, as follows : 43 E. S. 111. 1874, Oh. 77. of other ministerial officers, and the 44 Taylor v. Gilpin, 3 Met. (Ky.) chapter on "Execution and Judicial 544; Hunting v. "Walker, 33 Md. 60. Sales." 45 See the remarks relative to deeds § 281] OFFICIAL CONVEYANCES. 307 Henry W. Bishop, as Master in Chancery of the Circuit Court of the United States for the Northern District of Illinois, to Silas Wegg, Jr. Doc. 124,354. Master's Deed. Dated June 10, 1881. Recorded, July 12, 1881. Book 410, page 65. Sets forth that in pursuance of a decree entered March 13, 1881, hy said Court in a certain case then pending therein wherein John Doe was Complainant, and Richard Roe, Defendant, the said Master duly advertised, ac- cording to law, the lands and tenements hereinafter described, for sale at public auction to the highest and best bidder, for cash, at two o'clock P. M., on Monday, June 1, 1880, at the north door of the U. S. Custom House and Post Office, in the City of Chi- ago. Cook County, Illinois. That at the time and place so as aforesaid appointed for said sale, the said Master attended to make the same, and offered said premises for sale at public auc- tion, to the highest and best bidder, for cash, and thereupon Silas Wegg, Jr., offered and bid therefor $125.00, and that beimg the highest and best bid offered, said Master accordingly struck off and sold to said Silas Wegg, Jr., for said sum of money, the said premises, and did thereupon sign, seal and deliver to said Silas Wegg, Jr., the usual Master's Certificate therefor, and that said premises hoMC not been redeemed from said sale. Now, there- fore, in consideration of the premises conveys: [Here follows the description of the property.] Certificate of acknowledgment dated June 10, 1881. § 281. Trustees. A trustee is defined as a person in whom some estate, interest, or power in or affecting property of any descrip- tion is vested for the benefit of another,*^ and though the name is technically applied to a particular class, it also, to a certain ex- tent, comprises executors, administrators, guardians, assignees, etc. Where the legal title of a trustee is created by the owner of the property, the right of the trustee to enforce it will be recog- nized everywhere ; but where such title is derived solely from some act of the law, the effect of that act is confined to the territorial jurisdiction over which the law extends.*'' Upon the death of a trustee, the legal title to the estate devolves upon his heir at law; and the heir takes the same estate, and is subject to exactly the same duties and responsibilities as his ancestor.** 46 2 Bou. Law Diet. 616. 48Watkins v. Specht, 7 Coldw. l? Curtis V. Smith, 6 Blackf. (Ind.) (Tenn.) 585; McMuUen v. Lank, 4 537. Houst. (Del.) 648. By force of the 308 ABSTRACTS OF TITLE. [§ 281 But in case of more than one trustee, the rule Would be dif- ferent, for by the common law, and usually by the statute as well, the estate of trustees is held in joint tenancy, and hence, upon the death of one of several trustees nothing passes to the heir or personal representatives, but the whole estate devolves upon the survivors.*' Being founded on personal confidence, it necessarily results that a trustee can not delegate his trust to others,'" neither can he profit by his trust estate,'^ nor become a purchaser at any sale thereof by him,'^ while the power under which he acts must in all cases be strictly pursued to render such acts valid.^* A joint power of sale must be executed by all, provided all are living and in condition to act,'* unless the instrument creating the trust provides otherwise,'* for the interest held by several trustees in an entirety, and can only pass as a whole ; hence all the trustees living, having an interest in the property, must join in the conveyance, otherwise it will be wholly inoperative.'® But in case of the death of one or more of the trustees, the survivor or survivors will hold the trusts and may execute the powers.''' A deed by the survivors, representing the entire title, will be good, even though they are authorized to fill the vacancy, as it is only where the terms of the power creating the trust imperatively require the vacancy to be filled, that the acts of the survivors will be invalid." The questions suggested by the foregoing statements are many, statute the trust sometimes vests in 61 Faucett v. Faucett, 1 Bush (Ky.) some tribunal in the county in which 511. the trust property is situated, which, 52 Terwelliger v. Brown, 44 N. T. upon the application of some person 237. This is the universally accepted interested in the trust, forthwith ap- doctrine, but is subject to some quali- points a successor to the deceased fieations, the law not exacting the trustee, whereupon the trust vests in same rigid degree of strictness in all the newly appointed trustee: Collier the States. Clark v. Clark, 65 N. C. V. Blake, 14 Kan. 250. ' 655, and see "Trustees as Pur- 49 Golder v. Brewster, 105 111. 419. chasers, ' ' mfra. 50 Grover v. Hale, 107 111. 638. But '3 Huntt v. Towushend, 31 Md. 336. where the trustee conveys the legal 84 Learned v. Welton, 40 Cal. 349. title to one having knowledge of the '* Gould v. Mather, 104 Mass. 283 trust, or where such other person in '6 Golder v. Brewster, 105 111. 419 ; any manner acquires the legal estate Brennan v. Willson, 71 N. Y. '502. with such knowledge, he holds the ''' Lane v. Debenham, 11 Hare, 188. property subject to the trust and may B8 Golder v. Brewster, 105 111. 419. be compelled in equity to execute it: Ryan v. Doyle, 31 Iowa 53; Smith v. Walser, 49 Mo. 250. § 282] OFFICIAL CONVEYANCES. 309 and will readily present themselves to counsel upon the exam- ination of an abstract. To satisfactorily solve them the grant of power must be exhibited in the chain, qr, if made prior to the commencement of the search, a requisition for its production must be made, that it may satisfactorily appear, from actual inspection, that the proceedings of the trustees have been regular and in con- formity to the terms of the instrument creating the trust. § 282. Transfers of the Legail Estate by Trustees. The doctrine of the obligation of purchasers to observe the proper application of the purchase money, in cases of sales by trustees and other fiduciaries, was formerly very intricate, abounding in many tech- nicalities and subtilties; but these, in a large measure, have been swept away by special statutes in England, while in the United States the old English doctrine has rarely been administered except in eases of fraud in which the purchaser was a participant. The general rule now is, and for years past has been, that a purchaser who in good faith pays the purchase money to a person authorized to sell, is not bound to look to its application; and there is no difference in this respect between lands charged in the hands of a devisee with the payment of debts, and lands devised to a trustee to be sold for that purpose.^^ "The present well-established rule of law in regard to trust estates is," says Mr. Redfield,^" "that when the trustee holds the trust estate for the purpose of sale and conversion into money, or with a power of sale and conversion, any one who in good faith accepts such transfer upon adequate compensation, will acquire a valid title. But if the trustee has no power of sale the purchaser will acquire no title unless he show that the purchase money has been applied to the purposes of the trust. It is this which marks the true distinction between the cases, where the purchaser is bound to see to the application of the purchase money and where he is not. For if the trustee has no power of sale, any transfer by him will be wholly inoperative and the trust will attach to the trust property in the hands of the vendee the same as in the hands of the, trustee, until it appears that the money paid by the vendee, to t^e fuU. value of the trust property, has been applied to the purposes of the trust. ' ' ®^ 59 0yder's Appeal, 11 Pa. St. 72; 60 3 Eedf. on Wills (3d Ed.), 620. Champlin v. Haight, 10 Paige (N. 61 And see, Hughes v. Tabb, 78 Va. Y.), 275; White V. Carpenter, 2 Paige 325; Turner v. Hoyle, 95 Mo. 337; (N. Y.), 217; Gardner v. Gardner, 3 Jacks v. State, 44 Ark. 61. Mason (C. Ct.), 178, and see Warvelle on Vendors, §573. 310 ABSTRACTS OF TITLE. [§ 283 § 283. Power of Sale and Trust of Sale Distinifuished. In the execution of testamentary trusts questions of title are frequently raised on the construction of the authority under which the trustee effected the sale, but the same questions may sometimes arise under deeds of trust. "The more common case of trusts with power of sale," observes Mr. Redfield,^^ "is where the testator devises his estates, together with all his personalty, directing that the latter be first applied in the payment of debts and legacies; and in de- fault of it proving sufficient, that the real estates be sold by the trustees, either generally, in their discretion, or in some order named in the will." In such ease, the learned author contends that it would be the duty of the trustees to assure themselves that a deficiency in the personalty has really occurred before they can properly proceed to sell real estate, and distinguishes between a trust and power of sale in this manner: "A power of sale, in the event of the personal estate proving insufficient to pay debts or legacies, or both, is a power depending upon a condition prece- dent, and wiU not attach unless the condition occur; and a sale under such a power, when the condition had not in fact occurred, wUl, of course, convey no title. It is, therefore, in a case of this kind essential, that all persons interested in the purchase and in acquiring a good title, should assure themselves that the power has really attached. In such a case the receipt of the money by the appointee will have no effect upon the passing of the title, and will commit no one to its application or repayment except the person receiving it. But in the case of a trust for sale under a will, the title having passed to the trustee, the title will pass upon any such sale as rests upon an apparent occurrence of the emer- gencies justifying a sale; and the payment of the money by the purchaser to the trustee, and his receipt for same, will exonerate the purchaser from all responsibility. ' ' ^* The exercise of trusts and powers is now very generally con- trolled by statute. A trust not allowed by the statute is wholly invalid and no estate vests in the trustees ; but a trust directing or authorizing the performance of any act which may be lawfully performed under a power, will still be valid as a power in trust,®* subject to the provisions of the statute in relation to powers. Where the trust given does not purport to be a trust of sale, but simply a power in trust, a deed made by the executor under it, 62Eedf. on WUls (3d Ed.), 551. 64 Downing v. MarshaU, 23 N. Y. 63Eedf. on Wills (3d Ed.), 552, 366. citing Walker v. Smallwood, Amb. (Eng. Ch.), 676. § 284] OinCIAL CONVEYANCES. 311 will convey title to the purchaser, and this, notwithstanding the fact that the land in question is devised absolutely by the will.^^ § 284. Trustees ' Deeds. Titles derived through trustees ' deeds require close scrutiny, for where .i deed of trust minutely and particularly prescribes the circumstances under which, and the manner in which, the trustees shall have authority to sell the trust property, they have no power or authority to dispose of such property under any other circumstances or in any other manner.^^ Fiduciaries and trustees, if they exceed or violate their authority, are responsible, though no bad faith prompted their acts; and those who deal with them on the faith of the trust estate, must be aware that they exercise only limited and delegated po^vers, and are bound, at their peril, to take notice of such powers and see to it that they confine themselves within their scope.^' A trustee having once accepted the trust in any manner, a pur- chaser can not safely dispense with his concurrence in a sale of the trust estate, notwithstanding he may have attempted to dis- claim, and although he may have released his estate to his co-trus- tees. AU the trustees, in case of several, must unite in a disposal of the trust property, and a deed by two, while a third is living, is not valid. The trustees take as joint tenants, and must all unite in the execution of the trust, and especially in a deed of lands. A trustee can not delegate any duty, unless the power to dele- gate is expressly given, which involves the exercise of any discre- tion or judgment. Mere mechanical or miaisterial duties may be performed by others. The particular medium of advertisement, the manner of conducting the sale, the best method of offering the property, the question of postponement of the sale, and the sale itself, are matters regarding which, when they are not prescribed by the instrument under which he acts, special trust and confidence are reposed in the trustee; and they can not be delegated to an agent.*' All these duties are usually matters of recital in the trustee's deed, and it is advisable that they be shown in the abstract substantially as there stated. Where the trust deed forms a portion of the examination, the trusts and conditions should fully appear in the abstract of that 65 Crittenden v. I'aircliUd, 41 N. Y. 66 Huntt v. Townshend, 31 Md. 336. 289. In this case it was held that 67 Owen v. Eeed, 27 Ark. 122; Ver- Buch power was not inconsistent with non v. Board of Police, 47 Miss. 181; the devise, but the estate vested in Ventres v. Cobb, 105 111. 33. the devisees, subject to the execution 68 Bales v. Perry, 51 Mo. 449; pf the power. Grover v. Hale, 107 111. 638. 312 ABSTEACTS OF TITLE. [§ 284 document, and reference to them will be suiScient in preparing the synopsis of the trustee's deed. Should the trust deed not be in- eluded in the examination the conditions as recited in the deed may- be given, or a note substantially embodying them may be appended, as per the example shown. Here is an example of a trustee's deed made on foreclosure and in pursuance of a power of sale : PUny B. Smith, Trustee, to William Thompson, Document 1008. Trustee's Deed. Bated Jan. 5, 1882. Recorded Jan. 6, 1882. Booh 500, page 520. Recites, that John Peterson and Maria, his wife, iy a Trust Deed, dated May 1, 1880, and recorded May 3, 1880, in hook 410, page 512, conveyed to Pliny B. Smith, as Trustee, all the lands hereinafter described, to secure the payment of $1,000, to Hiram Jones, in one year from May 1, 1880, evidenced by said Peterson's one promissory note of even date with said Trust Deed. Also sets forth the potver of sale in said Trust Deed contained.^^ And default having been made in the payment of said note, and Hiram, Jones, the legal holder thereof, having applied to first party, as such Trustee, to cause the said lands herein described to be sold for the purposes mentioned in, and in accordance with the provisions of said Trust D'eed,'"^ first party on Dec. 5, 1881, caused a due notice to be published in the Legal Adviser, a newspa/per published (printed) in the City of Chicago, Cook County, Illinois, that said lands hereinafter described would, on Jan. 5, 1882, at one o'clock P. M., be sold at public auction, at the North door of the Court House^'^ in the City of Chicago, Ills., to the highest bidder for cash, by virtue of the power and authority in him vested by said Trust Deed; which said notice was (printed) published for 69 The power of sale may be set out property for saW his act, will be un- here as directed, but if the trust deed authorized under the power, and the has already been exhibited in the sale may be avoided and set aside as chain, this, of course, would be un- made in violation of its terms: Equi- necessary, and the simple recital table Trust Co. v. Fisher, 106 111. 189. shown in the text will be sufficient. 71 A power to sell ' ' at the north 70 This is an important recital and door of the court house, ' ' may be should always be set out.- "Where a well executed, if the building has trust deed gives the trustee the power meantime been destroyed by fire, by to advertise and sell the mortgaged a sale at the ruins of the north door, premises on default of payment, when The meaning of the phrase consists so requested by the holder of the in- in identifying a place of sale, not in debtednessj and the trustee, without the identity of the door: Waller v, being so requested, advertises the Arnold, 71 111. 350. § 284] OFFICIAL CONVEYANCES. 313 thirty days in said paper, commencing on Dec. 5, 1881, and ending on Jan. 4, 1882, the date of the first paper containing the same ieing Bee. 5, 1881, and of the last of Jan. 4, 1882. And said lands having been, by said party, on Jan. 5, 1882, at one o'clock P. M., in the manner prescribed in and by said Trust Deed, and at the place last aforesaid, in pursuance of said notice, offered for sale at public auction, to the highest bidder for cash, and second party having been the highest bidder therefor, and having bid for the tract hereinafter named, $1,050, he was duly declared the purchaser thereof. Now, therefore, in consideration of the sum so bid, grants, bar- gains, sells, aliens, remises, releases and confirms the following described land in Chicago, Cook County, IlUnois, to wit: [Here set out the description of the property conveyed.] Together, with all and singular, the tenements, hereditaments, and appurtenances thereunto belonging, as the same are described and corweyed in and by the said Trust Deed; and also, all the estate, right, title, interest, property, claim, and demand whatso- ever, both in law and equity, of the said John Peterson and wife, as well as of the said first party, of, in, and to the above described premises, with the appurtenances, as fully to all intents and pur- poses, as first party hath poiver and authority to grant, sell, and convey the same by virtue of the said Trust Deed. Ackgt., dated Jan. 5, 1882. Should no trust deed be shown in the examination, append the power of sale under which the trustee's deed is given, as follows: , Note. — The Trust Deed from John Peterson and wife to Pliny B. Smith, dated May 1, 1880, and recorded May 2, 1880, as Doc. 252, in book 410 of Records, page 512, provides in trust, that in case of default in the payment of said note, or any part thereof, according to the tenor and effect of said note, then, on application of the legal holder of said note, to sell and dispose of the said premises, and all the right, title, benefit and equity of redemption of said first party, their heirs and assigns therein, at public auction, at the North door of the Court House, in Chicago, Illinois, or on said premises, as may be specified in the notice of such sale, for the highest and best pricp the same will bring in cash, at least thirty days' public notice having been previously given of the time and place of such sale, by advertisement in one of the daily or weekly newspapers at that time .published in said City of Chicago; and to make, execute and deliver to the purchaser or purchasers at such 314 ABSTRACTS OP TITLE. [§ 284 sale, good and sufficient deed or deeds of conveyance for the prem- ises sold, * * * * loJiich sale or sales so made shail ie a per- petual bar, both in law and in equity, against the said first party, their heirs and assigns, and all other persons claiming the prem- ises aforesaid, or any part thereof, by, from, through, or under said first party, or any of them. Second party, tvith or without re-advertising, is hereby author- ized and empowered to postpone or adjourn said sale from time to time at his discretion, and also to sell said premises entire, without division or in parcels, as he may think best. In case of a breach of any of the covenants or agreements herein, by first party, said premises shall be subject to sale and conveyance, on request of the legal holder of said note, in like manner and with the same effect as if the said indebtedness had matured. First party covenants and agrees that in case of a sale and conveyance, as aforesaid, of said premises, the deed and deeds of conveyance made in pursuance of such sale shall be prima facie evidence of the due complimice with and performance of the terms, conditions and requirements of this deed of trust, by second party or his successor in trust aforesaid, in advertising and making such sale and conveyance, to the extent of the recitals contained in such deed or deeds. Where a trustee's deed, made upon a sale under a valid deed of trust, shows that such sale was conducted in strict conformity with the power contained in the trust deed, and the purchaser has had no notice of any irregularities in the sale, his title will be protected, as respects such irregularities, if any there were, as that of an innocent purchaser ; ''^ but the payment of the debt secured by a deed of trust defeats the power of sale, and a pur- chaser at such sale must see to it that the grantor in the trust deed is in default, and that some part of the debt is due and unpaid.'* Deeds similar to the foregoing will be found on the records of many of the states, as this method was formerly of wide and con- stant use. Where the transaction is ancient some condensation may be permitted, but, generally, the precedent should be sub- stantially followed. §285. Mortgagees' Deeds. Mortgagees' deeds, made in pur- suance of a power of sale, differ in no important particular from 72 Hosmer v. Campbell, 98 111. 572 ; 73 Ventres v. Cobb, 105 111. 33. Montague v. Dawes, 14 Allen (Mass.), 369. § 285] OFFICIAL CONVEYANCES. 315 conveyances by trustees, the mortgagee being, for the purposes of the conveyance, an executor of an express trust. He is held to the same strict rules that regulate the conduct of other trustees, and can not exceed the express powers under which he acts. A mortgagee may sell the equity of redemption of the mortgagor and such interest as is conveyed to him by the mortgage under which he sells, but he can not sell the equity of redemption by itself; nor can he sell an undivided portion of his interest in the land included in the mortgage. A proper execution of the power of sale requires him to sell all he is entitled to under it,''* and for the same reason he has no right to sell a greater interest than the mortgage gives him or authorizes him to sell. A violation of these rules will render the sale invalid.''^ The recitals of a mortgagee's deed are material to its validity, as tending to show a due execution of the power and compliance with the conditions of the trust,''^ and should be shown in the abstract in the same manner as indicated in case of trustees' deeds.'" The original purchaser at a sale by a mortgagee, under a power of sale contained in the mortgage, is chargeable with notice of defects and irregularities attending the sale, and can not evade their effect,'" but it would seem that as to remote purchasers, ihe sale is only voidable on proof of actual knowledge of such defects acquired before the consideration has been paid.''® It has been held, however, that a properly executed deed reciting strict con- formity, the purchaser having no actual knowledge or notice of any irregularity and taking, such deed upon the strength of the assurances therein contained, will protect the title of such pur- chaser.*** Deeds by trustees and mortgages, made under a power of sale, will be found in the history of many titles. In such cases the procedure indicated above should be followed in preparing the abstract. At present, however, this practice is not permitted in TlFowle V. Merrill, 10 Allen, 350; that there had been a valid sale un- Torrey t. Cook, 116 Mass. 163. der the power, although the deed may 76Donohue v. Chase, 130 Mass. 137. be defectively executed so as not to 76 Gibbons v. Hoag, 95 111. 45. pass the legal title: Oibbons v. Hoag, W Where a deed for land sold under 95 111. 45. a power in a mortgage, reciting cor- 78 Hamilton v. Lubukee, 51 111. 415. reotly aU the facts showing a right But see Hosmer v. Campbell, 98 111. to make the sale, is recorded in apt 572. time, the record thereof will affect all 79 Grover v. Hale, 107 111. 638. persons thereafter claiming under the 80 Hosmer v. Campbell, 98 111. 572. mortgagor with constructive notice 316 ABSTEACTS OF TITLE. [§ 286 most of the states and all mortgages, and trust deeds in the nature of mortgages, must be foreclosed in court. § 286. Executors and Administrators. The real estate of a de- ceased person is frequently conveyed through the media of what are known as "personal representatives," consisting of executors, or persons specifically designated for that purpose by the decedent, and administrators, who act by virtue of an appointment under the law.'^ An executor may sell and convey lands held in special trust without the intervention of a court, but not such lands as are sold in due course of administration to pay decedent's debts, while an administrator can do no act affecting lands without the special order of a court. In case of sales by either officer no title passes until the execution and delivery of a deed,** and without such title as the deed conveys, the purchaser can not maintain or defend ejectment against or by the heir.** §287. Executors' Deeds. A testamentary executor stands in the place of and represents his testator. He derives his power primarily from the will, and in this respect differs somewhat from an administrator, whose sole power is derived from the law and the directions of the court.** When acting under a naked testa- mentary appointment, his powers are co-extensive with those of an administrator, and he is bound by the same rules, and sub.ject to the same restrictions. But the executor may also be a trustee,** and, when acting as such, the scope of his powers is measured and limited by the will which appoints him. The distinction therefore, must ever be kept in view of the powers and duties of an executor, as such, and those which may devolve upon him as trustee, and not as executor.*^ Under his testamentary authority, he may sell land, and otherwise execute the trusts and exercise the powers enumerated and conferred in the will, subject to the general regu- lations of the statute, and free from the control or intervention of a court.*'' But where authority is not expressly given, or where, ' 81 "Legal" or "Personal represen- 83 Doc v. Hardy, 52 Ala. 391; Grid- tative" in the commonly aeeepted ley v. Pliillips, 5 Kan. 349. sense, means administrator or execu- 84 Walker v. Craig, 18 111. 16. Van tor. But this is not the only de- Wickle v. Calvin, 23 La. Ann. 205; finition. It may mean heirs, next Gilkey v. Hamilton, 22 Mich. 283. of kin, or descendants : Warnecke v. 86 Pitts v. Singleton, 44 Ala. 363. Lembea, 71 111. 91. 86Warfield v. Brand, 13 Bush 82 A properly conducted sale, after (Ky.), 77; White v. Clover, 59 111. confirmation vests the equitable title 462. in the purchaser. 87 Buckingham v. Wesson, 54 Miss. § 288] OFFICIAL CONVEYANCES. 317 during the administration, he performs the ordinary oiBces of an executor, as where land is sold to pay the debts of decedent, no express power being given, he must first obtain authority or license from the probate court, and his sale must be reported to and con- firmed by such court, before a deed can lawfully issue to the pur- chaser. An executor's deed, therefore, will be governed by the law relating to trustees or administrators, according as he may convey in the one or the other capacity, and the reader is referred to the remarks on those classes of deeds respectively.'* In either case, the authority of the deed must precede it ; in the one case the will, showing the power of sale or trust, and the manner, if stated, in which the power must be exercised or the trust executed, and in the other, the license, report of sale and confirmation, while a synopsis of the probate of the will must be shown in both instances. As in all other cases of fiduciary conveyances, the deed itself must show substantial compliance with the requirements of the will and of the law, and be in other respects regular. The precedent of a trustee's deed heretofore shown will suggest the method to be fol- lowed where an executor executes a deed in pursuance of a testa- mentary trust. An executor's deed, under power, should always expressly state that it is made in execution of such power, and where the executor also possesses individual interests in the land conveyed and his deed does not purport to be in pursuance of his delegated author- ity or in execution of the power with which he is invested, it will be insufficient to pass the interest of the testator.*^ §288. Administrators' Deeds. An administrator is regarded as an executive officer of the court, while he also occupies the relation of trustee to the estate, its creditors and distributees.'" Al- though he may not possess as much power as an executor, the latter deriving his authority from the testator and the law, and the administrator from the law only,®i he yet possesses the necessary 526; Whitman v. Fisher, 74 111. 147; 89 Cohea v. Hemingway, 71 Miss. Cronise v. Hardt, 47 Md. 433; Jelks 22; Davenport v. Young, 16 111. 548. V. Barrett, 52 Miss. 315; Hughes v. sowingate v. Pool, 25 111. 118; Washington, 72 111. 84. But the State v. Meagher, 44 Mo. 356. These power must be explicit ; general remarks will also apply to some phases words do not confer power to sell of the office of executor. See fore- lands: Skinner v. Wood, 76 N. C. 109. going section. 88 See ' ' Judicial and Execution 91 Gilkey v. Hamilton, 22 Mich. Sales," and the chapter on Testamen- 283. tary Conveyances. 318 ABSTRACTS OF TITLE. [§288 power to sell property, negotiate securities, and to settle and pay debts,^^ but always under the order and direction of the court. He takes neither an estate, title, nor interest in the lands of his intestate,^^ but a mere naked power to sell for specific purposes.'* He takes the land as he finds it,®^ and having no interest thereia, can maintain no action to perfect the title or relieve it of any bur- den,®^ and must sell it as he finds it.*'' An administrator's deed derives its primary validity from the order of the court directing the sale of the land in question, and this order, together with a synopsis of the preliminary proceedings which induced it, and the report of sale and confirmation, should precede the deed in every instance.** The power to sell is a per- sonal trust, which cannot be delegated,** and the sale being a fiduciary act based upon statute, must show affirmatively a strict compliance with the law.^ In addition to the report of sale, a sub- stantial account of same is also incorporated into the deed, and this, together with all other material recitals tending to show a full compliance with the decretal order and statutory requirements should be stated with reasonaljle detail in the abstract. A form is here appended for further illustration: Nathaniel M. Jones, as ad- ministrator of the estate of John B. Thompson, de- ceased, late of Cook Coun- ty, Ills., to James McHenry Doc. 125,416. Administrator's Deed. Dated July 15, 1882. Recorded Aug. i, 1882. Book 119, Page 410. Sets forth, that the Proiate Court, of Cook County, Illinois, at a regtilar term thereof, on May 10, 1882, in a certain cause, brought under the statute, where- in said Nathaniel M. Jones, as Administrator of the estate of said 92 Walker v. Craig, 18 111. 116. Eeal estate cannot be sold by an ad- ministrator unless tlie personal estate is insuflS.oient to pay the liabilities; and, ordinarily, only so much should be sold as is necessary for that pur- pose: Newcomer v. Wallace, 30 Ind. 216; Foley v. McDonald, 46 Miss. 238. 93Eyan v. Duncan, 88 111. 144; Stuart V. Allen, 16 Cal. 473. 91 Smith V. MoConnel, 17 111. 135; Floyd V. Herring, 64 N. C. 409. 96Gridley v. Watson, 53 111. 186. 96 LeMoyne v. Quimby, 70 III. 399 ; Eyan v. Duncan, 88 111. 146. 97 Martin v. Beasley, 49 Ind. 280. 98 See Probate Proceedings, infra. 99 Chambers v. Jones, 72 111. 275; Gridley v. Philips, 5 Kan. 349. IFell V. Young, 63 111. 106; Lock- wood V. Sturdevant, 6 Conn. 386; Corwin v. Merritt, 3 Barb. 341. An administrator's deed for land is not admissible as evidence without proof that the maker was administrator: Ury V. Houston, 36 Tex. 260. § 288] OFFICIAL CONVEYANCES. 319 John B. Thampsan, deceased, was plaintiff, and George B. Thomp- son and Mary E. Thompson, were defendants, did, hy order duly entered, empower and direct sadd Na.thaniel M. Jones, as such Administrator, to sell at piiblic vendue the real estate of said JohnB. Thompson, deceased, hereinafter described, for the purpose of paying the just claims against his estate. That in pursuance of said decretal order, said first party, as such administrator, having given due public notice of the intended sale hy causing a notice of the terms, time and place of such sale, together ivith a description of the real estate to be sold, to be pre- viously posted for four weeks, at four of the most public places in the county where such real estate was sold, and also, to be pub- lished for four successive weeks prior to said sale, in the Chicago Legal News, a newspaper published, in said Cook County, the county where such real estate was sold, agreeably to the order and directions of saiid Probate Court, and in accordance ivith the stat- ute in such cases made and provided, did, on June 15, 1882, pur- suant to the order and notice aforesaid, sell at puMic vendue the real estate of said John B. Thompson, deceased, in said order de- scribed, to James McEenry, he being the highest bidder therefor. That first party made and filed in the office of the clerk of said Probate Court a complete report of his proceedings and sale un- der said order, and said Probate Co^irt having carefully examined the same on July 10, 1882, finding the same correct, did approve and confirm the same, and ordered said Nathaniel M. Jones, as such administrator, to execute, acknowledge and deliver a deed of said real estate Jo second party, on his complying with the terms of said sale,^ and that second, party has in all things complied with the terms of said sale on his part to be perforined. Now, therefore, first party, in consideration of the premises and $100.00, grants, bargains and sells land in Cook County, III., to wit: [Here follows the description of the land according to the deed.] Together with all and singular the hereditaments and appur- tenances thereunder belonging, and all the estate, right, title, in- terest, claim, and demand whatsoever, at law or in equity, which said John B. Thompson, deceased, had at the time of his death, in and to said premises. To have and to hold the same unto second party, his heirs and assigns forever, as fully and effectually, to all intents and purposes 2 One who produces an administra- thorized. LaPlante v. Lee, 83 Ind. tor's deed as evidence of his title, 155. must show that its execution was aii- 320 ABSTRACTS OF TITLE. [§ 288 in law, as first party might, could or ought, have power to sell and convey the same, by virtue of said decretal order. Certificate of acknowledgment, dated July 15, 1882. The doctrine of caveat emptor applies to all sales by the admin- istrator,^ and the purchaser, who is presumed to have made all necessary inquiries, takes the title at his peril,* and subject to all liens, except those for the payment of which the land is sold.' The purchaser has no right to the land until the sale has been con- firmed,® but where the sale has been made under a proper order of the court, and reported to and confirmed by such court, it con- veys title even though the proceedings be irregular.'' § 289. Administrator with Will Annexed. An administrator with the will annexed occupies much the same position as an exeevitor and may exercise many of the executor's powers.* He acts under the will and, as a rule, any power given to the executor, which is not in the nature of a personal trust, that is, where the power given belongs to the ofiSce of executor and not to the per- son, may be exercised by an administrator with the will annexed.* Where the will creates a personal trust which the executor alone could execute without the intervention of a court, the trust will not pass to the administrator with the will annexed, and sales thereunder of real property of the testator by the administrator will be without authority and void.^" Where the will gives to an executor therein named powers and duties to be performed which do not ordinarily come within the scope of an executor's func- tions,^^ or where land is devised to him to be sold,^* an adminis- 3 MeConnell v. Smith, 39 111. 279. disqualified or renounces the office. 4 Bishop V. O 'Connor, 69 111. 431. 4. Where the executor dies before the 5 Henderson v. Whitinger, 56 Ind. completion of administration; in this 131. latter case the administrator is also 6 Mason v. Osgood, 64 N. C. 467 ; administrator de bonis non. Bawlings v. Bailey, 15 111. 178; XJry 9 Anderson v. McGowan, 45 Ala. V. Houston, 36 Tex. 260. 462; Prescott v. Morse, 64 Me. 422; 7 Thorn v. Ingram, 25 Ark. 52; Belcher v. Branch, 11 E. I. 226. Myer v. McDougal, 47 111. 278. Com- 10 Anderson v. McGowan, 45 Ala. pare Chase v. Eoss, 36 Wis. 267. 280 ; Dunning v. Ocean Nat. Bank, 61 8 An administrator cum testamento N. Y. 497; Eoss v. Barclay, 18 Pa. armexo is appointed on the following St. 179. occasions: 1. Where no executor is 11 Ingle v. Jones, 9 Wall. 486. appointed by the will. 2. Where an 12 NicoU v. Scott, 99 111. 529 ; Dun- executor is appointed but dies before ning v. Ocean Nat. Bank, 61 N. Y. the testator. "3. Where from any cause 497; Gilchrist v. Eea, 9 Paige, 66. the executor becomes incompetent. §290] OFFICIAL CONVEYANCES. 321 trator with the will annexed has no power, without the aid of a court, to sell the lands so devised or directed to be sold, or to ex- ecute the special powers given to the executor.^* §290. Guardians' Beeds. Guardians i* and conservators" frequently make conveyances of the real estate of their wards, either to pay debts, or for the support and education of the ward, or for the purpose ■ of investing the proceeds ; and such convey- ances, if attended by all the statutory requisites, are effectual to convey all the title which the ward may have possessed at the time of the sale.^® Sales of this kind are made under the direction of the probate court upon petition by the guardian stating the nec- essary jurisdictional facts, ^'' and after notice of such application, in the manner provided by law.^* Such sales must be further re- ported to and confirmed by the court granting the license,^* but the title of the ward will not be divested until a deed has been ordered and actually executed.^" The deed should therefore be preceded in the abstract by brief recitals of the antecedent steps or references to all jurisdictional facts. These would consist of an abstract of the letter of guard- ianship, but not necessarily of the prelimniary matters of induce- ment, as a letter of guardianship is in the nature of a certificate or commission, and, in the absence of any statutory provision re- quiring it, it is not essential to its validity as evidence of the appointment that it should recite the mode and particulars of 13 Such trusts frequently devolve 17 The petition is of paramount ne- upon a trustee whom the court may eessity, and, it seems that without appoint for that purpose : FarweU v. such a petition the court gets no juris- Jaeobs, 4 Mass. 634. diction to grant a license to sell; Ey- 14 The common law recognized four der v. ITlanders, "30 Mich. 336. kinds of guardians, to wit: in ehiv- 18 The notice is jurisdictional, and airy, by nature, in socage, and by nur- a sale without giving the statutory ture. The distinctions do not, and notice has been held absolutely void: never have existed in the United Rankin v. Miller, 43 Iowa, 11; Ken- States. The statutory guardianship nedy v. Gaines, 51 Miss. 625. If, is the only kind which figures in land however, the notice is defective mere- titles, ly, the jurisdiction is saved; Lyon v. 16 The estate, and frequently the Vannatta, 35 Iowa, 521. person as well, of persons non com- 19 Confirmation is essential to the pos mentis, is often confided to the validity of the sale. People v. Cir- care of a statutory guardian generally cuit Judge, 19 Mich. 296; "White v. eaUed a conservator or committee. Clawson, 79 Ind. 188; Chapin v. Cor- ISWisener v. Lindsay, 33 La. An. tenius, 15 111. 427. 1211;- Mulford V. Beveridge, 78 111. aoDoe v. Jackson, 51 Ala. 514. 445; Ktzgibbon v. Lake, 29 111. 165. Warvelle Abstracts — 31 322 ABSTRACTS OF TITLE. [§ 290 emanation, while all reasonable presumptions must be indulged in favor of its having been regularly issued and after lawful proceed- ings ; ^^ a brief synopsis of the petition and notice, or at least references to those instruments ; a synopsis of the decree or license of sale; and reference to the guardian's report of sale, and order of confirmation. §291. Trustees Can Not Become Purchasers. It is a settled principle of equity, that no person who is placed in a situation of trust or confidence with respect to the subject of the sale can be a purchaser of the property on his own account. The principle is not confined to a particular class of persons, such as guardians, trustees, etc., but is a rule of universal application to all persons coming within its principle, which is, that no party can be admit- ted to purchase an interest, where he has a duty to perform that is inconsistent with the character of purchaser. The reason of the rule is, not because they might not, in many instances, make fair and honest disposition of it to themselves, but because the prob- ability is so great that they would frequently do otherwise, with- out danger of detection, that the law considers it better policy to prohibit such purchases entirely than to assiune them to be valid except where they can be proved to be fraudulent. "The rule forbidding conflict between interest and duty is no respecter of persons. It imputes constructive fraud, because the temptation to actual fraud and the facility of concealing it are so great. And it imputes it to all alike, who come within its scope, however much or however little open to suspicion of actual fraud. "28 The principles which prohibit the trustee from becoming a pur- chaser extends to- all sales of the trust property whether made by the trustee himself, under his powers as trustee, or under an ad- verse proceeding. As a general trustee of the subject-matter, it is his duty to make it bring as much as possible at any sale that may take place, and therefore he cannot put himself in a situation where 21 Burrows v. Bailey, 34 Mieh. 64. 444; Blauvelt v. Aekermann, 20 N. The proceedings hj a guardian to J. Eq. 141; R. E. Co. v. R. R. Co., sell his ward's lands are statutory, 19 Gratt. (Va.) 592; Boerum v. and a material deviation from the Schenck, 41 N. Y. 182; Roberts v. requirements of the statute is, in Roberts, 65 N. 0. 27; McGowan v. general, jurisdictional. , McOowaii, 48 Miss. 553 ; Goodwin v. 22 Ryan, C. J., in Cook v. Berlin Goodwin, 48 Ind. 584; Sheldon v. Mill Co., 43 Wis. 433; Story's Eq., Rice, 30 Mich. 296. § 310 ; Grumley v. Webb, 44 Mo. § 292] OFFICIAL CONVETAJCCES. 323 it becomes his interest that the property should bring the least §292. Continued — Qualifications of the Rule. The foregoing, though stating the generally received doctrine, is yet subject to qualification. "While the rules as stated still apply in all their pristine vigor to a large class of fiduciary relations, to certain others their effect has been greatly modified. Thus, a purchase of land by an executor, at his own sale, directly or indirectly, is not ordinarily void, but only voidable at the option of the heirs or beneficiaries seasonably expressed.''* A clear and unequivocal af- firmance of the sale, which must be bona fide, may conclude the beneficiary, if under no disability and in full kaowledge of the facts, and the acceptance of proceeds by the beneficiary would, in general, amount to an affirmance.^^ All such sales, however, are viewed by the courts with a jealous eye and set aside for slight cause, and titles derived through or under them are questionable at best. If re-enforced by a quit- claim or confirmation by the heirs or beneficiaries, they become less obnoxious,^^ yet even then they are far from perfect, as the unsatisfied rights of creditors may raise equities sufficient to vacate and annul the deed. 23 Martin v. Wyneoop, 12 Ind. 382; Brantly v. Cheeley, 42 Ga. 209; 266. Seott V. Mann, 33 Tex. 721. 24Frazer v. Lee, 42 Ala. 25; 26 'Where one receiving title from Smith V. Granberry, 39 6a. 381; a trustee is chargeable with notice WiUiams v. Rhodes, 81 111. 571; of the disability of his grantor, it is Froneberger v. Lewis, 70 N. C. essential, in most cases, that some 456; Dodge v. Stevens, 94 N. Y. affirmation of the sale be obtained 209. from the beneficiary. ZBBoerum v. Sehenck, 41 N. Y. CHAPTBE XVIII. ASSIGNMENTS, INSOLVENCY AND BANKRUPTCY. i 293. Assignments generally. ( 294. Voluntary assignments. i 295. Validity of assignments. i 296. Formal requisites. I 297. Title of assignee. I 298. Construction and effect. j 299. Conflict of laws — Foreign signments. \ 300. Insolvency. ? 301. Bankruptcy. § 302. Jurisdiction and practice. § 803. Classification — Procedure. § 304. Nature and effect of bank- ruptcy. § 305. Procedure. § 306. Bankruptcy proceedings. § 307. The assignment. § 308. The assignee 's deed. § 309. Discharge in bankruptcy. §293. Assignments Generally. An assignment, as defined by BurriU,^ "is a transfer or setting over of property, or of some right or interest therein, from one person to another ; the term denoting not only the act of transfer, hut also the instrument by vrhich it is effected." When applied to real estate it indicates a transfer of the entire interest of the assignor in the transferred property, but in popular use is restricted to the conveyance of an estate for life or years. The terms is also used to distinguish a peculiar class of conveyances resorted to by persons who find themselves in embarrassed circumstances, or vfho are unable to satisfy the full demands of their creditors. In this sense assign- ments are classed as voluntary, or such as are made by the free act and deed of the assignor ; and involuntary or statutory, or such as are made under compulsion of law and in the furtherance of statutes of bankruptcy or insolvency. In all cases they imply a trust and the intervention of a trustee,^ and conveyances made directly to the beneficiaries, though for the same purpose, are not technically assignments,' and come under the provisions regulating ordinarv deeds of transfer and sale. § 294. Voluntary Assignments. The power to make an assign- ment for the benefit of creditors is not derived from any statutory 1 BurrUl on Assignments. aCowles V. Eickett, 1 Iowa, 382; Dickson v. Kawson, 5 Ohio St. 218; Peck V. Merrill, 26 Vt. 686. 3 Beach v. Beston, 47 111. 521; Keen v. Preston, 24 Ind. 395; John- son V. McGraw, 11 Iowa, 151; Grif- fin V. Eoger, 38 Pa. 382. 324 §294] ASSIGNMENTS, INSOLVENCY AND BANKEUPTCT. 325 enactment. Every debtor, whether solvent or insolvent, possesses, independent of statutory grant, the right to make any disposition of his property which does not interfere with the rights of others ; in other words, to make any honest disposition of his property that he pleases. The right of assignment is clearly within the absolute dominion which the law empowers every man to ex- ercise over his own. Statutory provisions concerning assignments are to be found in all the States, yet such statutes do not con- fer the right, but merely regulate its exercise, subjecting it, as in other transfers of property, to certain restrictions and limita- tions which experience has demonstrated to be wise and just ; but it is still the assignor's voluntary act, and not the act of the law. So, also, the power of the assignee is fixed by the instrument of assignment, which is at once the guide and measure of his duty. Beyond that, or outside of its terms, he is powerless and without authority. He distributes the proceeds and disposes of the estate placed in his care according to the dictation and under the sole guidance of the assignment, and the statutory provisions merely regulate and guard his exercise of an authority derived from the wiU of the assignor. In all things the assignee is the representa- tive of the assignor, and must be governed by the express terms of his trust.* Assignments of the character just described wiU be found in the devolution of many titles. Prior to the national bankrupt act of 1898 this method of transfer was much employed by both solvent and insolvent debtors. To some extent it is still used but under the terms of the bankrupt law an assignment for creditors constitutes an act of bankruptcy, even though the debtor is not in fact insolvent, and may be avoided by bankrupt proceedings where it is attacked in time.* But the Federal statute does not prohibit or invalidate a vol- untary deed of assignment and unless action is had thereon in the bankrupt court within four months from the time when filed for record an assignment will not be affected by the bankrupt statute. Such an assignment, therefore, is not void, but voidable only, and, unless avoided by an adjudication in bankruptcy, will be valid and binding on all of the creditors who assent thereto,* and may be enforced, and the parties thereto granted aU appropriate relief, by the state courts.'' The terms of the bankrupt law further ex- 4 In re Lewis, 81 N. T. 421; 590; Dayis v. Bohle, 92 Fed. Eep. PiUsbury v. Ejngon, 31 N. J. Eq. 325. 619; Bank v. Willis, 7 W. Va. 31. eEe Eomanow, 92 Fed. Eep. 510. »See, West Co. v. Lea, 174 TJ. S. 7 Louisville Dry Goods Co. v. Lan- 326 ABSTEACTS OF TITLE. [§ 294 empt wage earners and persons engaged chiefly in farming, or tillage of the soil, from involuntary bankruptcy.* Such persons, therefore, may make valid assignments for the benefit of creditors, as ,they are not subject to the provisions of the bankrupt act.® At present, however, this form of conveyance is but seldom em- ployed. § 295. Validity of Assignments. In all cases where conveyances are made for the ostensible purpose of securing an equal distribu- tion among creditors, of the property of the debtor, the validity of the conveyance depends upon the intention of the debtor. If the intention be to hinder and delay creditors in the enforcement of their demands agaist such debtor, rather than to secure an equita- ble distribution of the property among creditors, and for their benefit, the conveyance is fraudulent and void. It is not the effect of such conveyances that determines their validity, for every such conveyance in effect hinders and delays creditors. It is the in- tention that controls, and that intention cannot be better deter- mined than from the language of the deed of conveyance, although it may be established by extraneous evidence.^" A full narration of the recitals and conditions of the trust seems desirable in all cases of recent conveyance, as, where it appears from the face of the deed, that the motive for making it was to prevent a sacrifice of the property; or if there be reserved to the assignor any benefit or advantage out of the property conveyed, the intention as well as legal effect would be to hinder and delay creditors and the conveyance would be void.^^ The consideration expressed is a matter of minor importance, the true consideration being the agreement of the assignee to perform the trusts imposed upon him by the assignment ; and that, in contemplation of law, constitutes a full and complete consideration.^^ §296. Formal Requisites. Though voluntary assignments are founded on common right, yet, to prevent fraud by the setting up man, 135 Ky. 163, 121 S. W. 1042, U Gardner v. Com. Nat. Bank, 95 28 L. E. A. (N. S.) 363. 111. 298; Vernon v. Morton, 8 Dana 8 See, TJ. S. Comp. Stat. 1901, p. (Ky.), 263; Phelps v. Curtis, 80 lU. 3423. 113; Kayser v. Heavenrich, 5 Kan. 9 Olive V. Armour & Co. 167 Fed. 324; Lookhart v. Wyatt, 10 Ala. 231; Eep. 517, 93 C. C. A. 153, 21 L. E. A. Eeed v. Pelletier, 28 Mo. 173. (N. S.) 109. 12 Thomas v. Clark, 65 Me. 296; 10 German Ins. Bank v. Nunes, 14 Gates v. Labeaume, 19 Mo. 17. Eeporter, 206; MacMe v. Cairns, 5 Cow. (N. Y.) 547; Henderson v. Downing, 24 Miss. 106. § 296] ASSIGNMENTS, INSOLVENCY AND BANKRUPTCY. 327 of fictitious transfers claimed to have been made for the benefit of creditors, they must be attended with the prescribed legal formal- ities of the State where made, or where the property to be affected is situated ; and unless executed in conformity with such laws, are inoperative and void.^^ By the instrument the debtor's property must be unconditionally and without restriction transferred to the assignee, with a general authority to him to receive, hold, and dis- pose of it for the equal benefit of all the creditors, or in the order of preference, if any, provided f or.^* The assignment should be executed with the same solemnities that characterize ordinary deeds for the conveyance of land, and be duly acknowledged before an authorized officer. ^^ Defects of this nature should be noted by the examiner with the same scrupu- lous care as in other conveyances between individuals. No particular form of instrument is needed to constitute an as- signment, and any valid transfer, intelligibly indicating the trusts, will suffice.^® It is usual to set out the real estate conveyed, either in the body of the deed or a schedule thereto annexed, yet such is its force as a conveyance, that, when made only in general terms, it will transfer all the property which the assignor then owns, either in possession or expectancy, and the omission to specifically describe property in the inventory would not prevent the title thereto from passing to the assignee.^'' If the instrument mentions specific property,, without a clause of general conveyance, or even makes special exceptions, it will not, for that reason, be void, as the title to such withheld property may still be pursued by creditors,^* and so long as there is no reservation of some part of, or some right or interest in, the property actually conveyed, the assign- ment will be valid. The statutory requirements relate mainly to the acceptance of the trust by the assignee, filing of bond, notice to creditors, etc., and in these respects a literal compliance is usually necessary. The abstract should show a full synopsis of the proceedings; the operative parts of the instrument of transfer, including the trusts ; / 18 Johnson v. Brewer, 134 Ga. 828, 17 Eoseboom v. Mosher, 2 Denio 68 S. W. 589, 31 L. E. A. (N. S.) (N. Y.), 61. 332. 18 Knight v. Waterman, 36 Pa. 14McIntire v. Benson, 20 111. 500. St. 258; Ingraham v. Origg, 21 In some States preferences are not Miss. 22; Bates v. Ableman, 13 permitted. Consult local statutes. Wis. 664; Carpenter v. Underwood, ISBritton v. Lorentz, 45 N. Y. 19 N. Y. 520. 51. 16 Norton v. Kearney, 10 Wis. 443. 328 ABSTRACTS OP TITLE, [§ 297 and such portions of the inventory or schedule as cover the real estate in question. § 297. Title of Assignee. It is a usual requirement on the part of the assignee, that before taking possession of the assigned estate, he shall, within a stipulated time after the filing of the inventory, execute and file, in the proper office, a bond conditioned for the faithful performance of his duties; and it has been held that the absolute title to the property assigned does not pass until this bond is filed. 1* In the interval between the filing of the assignment and the filing of the bond, the inchoate or conditional title rests under the protection of the court, which has jurisdiction over the prop- erty but not over the assignee ; and a failure to file the bond, within the prescribed time, is, it is said, equivalent to a declination of trust which terminates all right in the property which the assignee may have acquired by the filing of the assignment.^" Where, how- ever, there has been a formal acceptance of the trust the transfer is complete and irrevocable, and the title to the property vests in the assignee for the benefit of the creditors.^^ An assignee is not regarded as a purchaser for value, and has none of the equities of such purchaser. He stands entirely on his naked legal title and this he can acquire only by an observance of the methods prescribed by law. The filing of the bond in such case, unless expressly made so by statute, is not a condition prece- dent to the vesting of the estate, nor will the failure to give the statutory security within the time limited invalidate the transfer or restore the title of the assigned property to the assignor. In the event of the failure to file a bond, as required by law, the assignee, though invested with title, has no power or authority to dispose of the property for the purposes of the trust, which would then be a dry trust merely to take possession and hold until he should be- come qualified and empowered to dispose of it; but having ac- cepted, he can only be relieved of the trust and divested of the estate by the order of a court of competent jurisdiction.^^ § 298. Construction and Effect. An assignment for the benefit of creditors, conveying property to trustees with power to sell and 19 This matter is wholly statutory. Brown v. Chamberlain, 9 Fla. 464; Consult local statutes. Hall v. Dennison, 17 Vt. 310. 80 Kingman v. Barton, 24 Minn. 22 Biennan v. Willaon, 71 N. T. 295. 502; Thrasher v. Bently, 59 N. Y. 21 Hyde v. Olds, 12 Ohio St. 591; 649. Forbes t. Scannell, iS Cal. 242; §300] ASSIGNMENTS, INSOLVENCY AND BANKEIIPTCT. 329 to apply the proceeds in payment of debts, is an absolute convey- ance, by which both the legal and the equitable estate is divested out of the grantor and vested in the assignee, subject to the uses and trusts in favor of the creditors.^' "An assignment," says Burrill,** "is more than a security for the payment of debts; it is an absolute appropriation of the property to their payment. It does not create a lien in favor of creditors upon property vehich, in equity, is still regarded as the assignor's, but it passes both the legal and equitable title to the property absolutely beyond the con- trol of the assignor. There remains, therefore, no equity of re- demption in the property, and the trust which results to the as- signor in the unemployed balance does not indicate such an equity. ' ' The title in the hands of the assignee is relieved of none , of its burdens, but remains subject to all existing liens and' equi- ties.25 §299. Conflict of Laws — Foreign Assignments. Deeds of as- signment are governed by the same general rules as other con- veyances, and when executed in one State but including or op- erating upon lands in another, their validity and effect, as instru- ments of conveyance of such lands, must be determined by the laws of the latter State.^® They have no extraterritorial force, yet, on principles of comity, an assignment valid in the State where it is made, and where the assignor resides, will generally be per- mitted to operate on the assets of such assignor in each of the other States.^'' §300. Insolvency. A special procedure is provided in most of the States for the distribution of the estate and effects of insolvent debtors, and their subsequent discharge from the debts thus sat- isfied. Such proceedings have the same general effect, within the jurisdiction of the State, as proceedings under the national bank- rupt law, and to which they bear a strong analogy. During the continuance of the bankrupt law, however, their operation is sus- pended, and owing to this and the infrequency with which the aSDwight V. Overton, 32 Tex. 25 Williams v. Winsor, 12 R. I. 9. 390; Van Keureu v. McLaughlin, 21 26 Story, Conflict of Laws, §364 N. J. Eq. 163; Briggs v. Davis, 21 Cutler v. Davenport, 1 Pick. 81 N. Y. 574. , Loving v. Paire, 106 Iowa, 282 24Burrill on Assignments, 12; Gardner v. Com. Nat. Bank of and see, Briggs v. Davis, 21 N. Y. Providence, 95 lU. 298. 577; Hoffman v. Maekall, 5 Ohio ZTUowtj v, Crocker, 6 Wis. 326, St. 124; Turner v. Watkins, 31 Ark. 437. 330 ABSTRACTS OF TITLE. [§ 300 remedy has been used, but few instances will occur where con- veyances have been made under same. The examples which fol- low, of abstracts of proceedings under the national bankrupt laws, will serve as illustrations of the method of showing State insolvency matters whenever they may occur. The validity of titles so de- rived is a matter of local law and construction. § 301. Bankruptcy. At the date of this writing a national bank- rupt law, passed in 1898, is in force, under which many transfers have been made. Numerous transfers under the operation of past laws will also be found of record. Proceedings by virtue of the act of 1841 require but slight notice, the rights of all parties there- under having become permanently established by the effluxion of time. • Proceedings and conveyances under the act of 1867 should be shown in greater detail, yet even here, in many instances, only a brief synopsis seems necessary. The operation and effect of the law of 1898 being recent and continuous, more attention to details will be required. § 302. Jurisdiction and Practice. By the bankrupt act of 1867 ^* the District Courts of the United States were given original and exclusive jurisdiction and power over all ' ' acts, matters and things to be done under and by virtue of the bankruptcy," and were authorized, by summary proceedings, to administer all the relief which a court of equity could administer under the like circum- stances upon regular proceedings.^^ A revisory jurisdiction was further conferred upon the federal circuit courts, but all initiate proceedings were confined to the district courts, which, when sitting as courts of bankruptcy, were regarded as separate courts, exer- cising powers and a jurisdiction distinct from their powers as district courts as originally constituted.'" Such courts were per- mitted to exercise extraterritorial jurisdiction in collecting the estate and adjusting the claims of the creditors of the bankrupt, but in all matters of controversy touching the rights of the as- signee under the assignment, when the subjects in dispute were of a local nature, the rights of parties could only be determined by actions in local courts.*^ The act of 1898 also gives jurisdic- tion of proceedings in bankruptcy to the District Court, but the 28 14 Stat, at Large, 520. SO Norris ' Case, 1 Abb. (U. S.) 29 Matter of Wallace, Deady, 433; 514. Newman v. Fisher, 37 Md. 259; 31 Whdtridge v. Taylor, 66 N. C. Voorhees v. Frisbie, 25 Mich. 476. 273. § 305] ASSIGNMENTS, INSOLVENCY AND BANKEUPTCY. 331 procedure differs in many respects from that observed under for- mer laws. §303. Classification. Bankruptcy is either voluntwry, when precipitated by the debtor's own act; or involuntary, when pro- duced by the action of the creditors, the effect upon the property of the bankrupt being the same in either case. In both instances, it is initiated by the filing of a petition, and consummated by ad- judication. When, after adjudication and before any assignment has been made, a composition is effected and the bankrupt dis- charged, there seems no good reason why the abstract should be encumbered by details which are immaterial to the title, and such proceedings may be safely omitted.*^ § 304. Nature and Effect of Bankruptcy. A person adjudicated a bankrupt is deemed a bankrupt from the day on which he files his petition, and, from the moment the petition is filed, so far as his property is concerned, he is considered as civilly dead. Dur- ing the interval existing between the filing of the petition and the appointment of a trustee,^* a condition of things exists not unlike that before the appointment of an administrator in the case of a person dying intestate, no one being authorized to dispose of or assign his assets.** Under the law of 1867 a voluntary bankrupt was intrusted with the care of his estate before an assignee was chosen, as a sort of trustee, and in involuntary proceedings a war- rant issued to the U. S. marshal, who, as the messenger of the court, took possession provisionally of all the bankrupt's prop- erty.*^ Under the law of 1898 a receiver may be appointed to hold the bankrupt's property pending an adjudication, or, in in- voluntary cases, a warrant may issue to the marshal as heretofore. § 305. Procedure. It is assumed that both examiner and coun- sel are familiar with the general procedure of the bankruptcy 32 This is on the principle that deprive him of the power, while the the matter possesses no more force discharge restores same, than a satisfied judgment, which 33 Under the law of 1867 an as- is neither a lien nor a cloud upon signment was made, the assignee oc- the title, but only a clog upon the cupying much the same position as examiner's efforts when shown in a trustee under the present law. an abstract. Many examiners pre- 34 Johnston v. Geisriter, 26 Ark. fer, however, to briefly allude to the 44. filing of the petition and discharge, SB In re MuUer, Deady, 513 ; In as the bankrupt, during this period, re Harthill, 4 Ben. 448; Williams has no power of disposition over his v. Merritt, 103 Mass. 184; In re effects; the adjudication being to Carow, 41 How. Pr. (N. Y.) 112. 332 ABSTRACTS OP TITLE. t§ 305 court, and this chapter is prepared on that hypothesis. It may be well, however, to briefly direct the attention of the reader to the changes of method which are noticeable in the present law when compared with the former practice. Under the law of 1867 the proceedings were conducted under the direction and supervision of an officer called "Register in Bankruptcy," and whenever it became necessary to administer the bankrupt's estate a formal transfer of his property was made by the Register to an officer called an "Assignee." In virtue of the authority thus conferred the assignee took possession of the property, and, if necessary, sold it to satisfy the bankrupt's debts. Under the law of 1898, after an adjudication of bankruptcy has been entered by the court, the matter is sent to an officer called a ' ' Referee, ' ' who thereafter conducts the proceedings. In the event that the creditors shall so desire a ' ' Trustee ' ' is appointed to take the debtor's property and convert it into money. Upon his ap- pointment and qualification the Trustee becomes invested, by op- eration of law, with all of the bankrupt's titles and rights of ownership, except statutory exemptions, as they existed at the date of the adjudication.^^* "Whenever, in the course of the pro- ceeding, the lands of the bankrupt are sold the title thereto is con- veyed to the purchaser by the trustee. The law permits the ap- pointment of a single trustee or a board of three trustees. "When- ever three trustees are appointed the concurrence of at least two of them are necessary to the validity of every act concerning the administration of the bankrupt's estate.^^ § 306. Bankruptcy Proceedings — How Shown. As in chancery proceedings, only a brief outline of the procedure of the bank- ruptcy court can well be shown in the abstract, which in cases of this nature is rather an index than a transcript. Sufficient, how- ever, should be given to show the apparent regularity of the pro- ceedings, and the degree of detail may be regulated by the wishes of the client. After confirmation, a sale by the assignee or trustee stands in the same relative position, with respect to irregularities, etc., in anterior proceedings, as other sales in chancery, and such anterior proceedings require no greater elaboration. "With such changes as may be necessary to suit the exigencies of particular cases, the following will afford a sufficient example. This proceed- ing, it will be observed, is under the law of 1867. 35a Act. 1898, §70. 39 See, U. S. Comp. Stat. 1918, § 9631. §306] ASSIGNMENTS, INSOLVENCY AND BANKRUPTCY. 333 V. 8. District Court, I Northern District of Illinois. In the matter of the estate of Case No. 1,000. Andrew Smith, Bankrupt. Petition filed Nov. 10, 1868.^'' Schedule of assets and liabili- ties mentions, [here set out so much of the real estate described as is covered by the caption of the abstract; or, if not mentioned, say: does not mention property in question.] Adjudication entered Nov. 16, 1868.^^ Robert E. Jenhins appointed assignee Nov. 16, 1868. Petition of said assignee, filed Dec. 1, 1868, praying leave to sell assets of said estate at public auction, etc. Order entered, Dec. 2, 1868, authorizing said assignee to sell assets as prayed for in said petition, after giving three weeks' public notice by publication, etc., and ten days' notice by mail to creditors. Assignee's report of sale, with proof of publication and notice of sale attached, filed February 1, 1869, showing sale of [here set out the description of property sold if covered by the search; or, if only one piece is named in schedule, or, if all the property named in schedule is sold to one person, say : the lands described in schedule of assets and above set forth] to Alexander Hamilton for $10,000. Assignee's report of sale approved and sale confirmed February 10, 1869. The subsequent proceedings, relative to the discharge of the bankrupt are immaterial, as he has now been divested of all title to the land in question ; biit should the examiner desire to add a symmetrical close to his synopsis of the action of the bankruptcy court, he may add : Petition for discharge filed March 1, 1869. Register's final report filed March 10, 1869. Discharge entered and issued May 1, 1869. 37 An assigmnent in bankruptcy the examiner 's discretion, be en- relatea to the commencement of the tered immediately following. In- proceeding, and the title of the as- asmuoh as such proceedings shed signee becomes vested as of that date. no light on the title they are not International Bank v. Sherman, 101 inserted in the form above given. U. S. 403. They would consist of the dates, 88 In case there should have been severally, of the entering and filing a composition and subsequent dis- of the petition for composition charge, the notes of same may, in meeting; the Register's report of 334 ABSTRACTS OP TITLE. [§306 The foregoing will suggest the method to be followed in pre- paring a synopsis of proceedings under the law of 1898. This should show the filing of petition ; the steps taken before the Eef- eree; the adjudication and appointment of Trustee, together with such further measures as may be necessary, which relate to the sale of land and the confirmation of such sale. § 307. The Assignment. The synopsis given in the last section is taken from the rolls of the district court, and shows the general course of the proceedings under the law of 1867. The formal instrument, however, by which the assignee acquired the legal title, was an assignment by the Register, which was duly recorded as a title deed in the registry of deeds of the county wherein the land was situate, and in the abstract it may be shown as follows : Homer N. Hibba/rd, one of the Registers in Bank- ruptcy of the District Court of the TJ. S. for the Northern District of Illinois, to Robert E. Jenkins, as- signee of Andrew Smith, Bankrupt. Assignment. Dated Nov. 16, 1868. Recorded Nov. 17, 1868. Book 691, page 625. Conveys and assigns all the estate, real and personal, of said Andrew Smith, bankrupt, including all the property, of whatever kind, of which he was possessed, or in which he was interested or entitled to have, on Nov. 10, 1868, with all Ms deeds, books and papers relating thereto, excepting- such property as is exempted from the operation of this assignment by the provisions of Sec. 5045, of title 61, Bankruptcy, of the Revised Statutes of the United States.^^ In trust, for the uses and purposes, with the powers, and sub- ject to the conditions and limitations set forth in said act. composition, and decree confirming same; the Register's report of com- pliance and final discharge. 39 It should be remembered that only the property actually owned by the bankrupt passes by this assign- ment, and hence where such bank- rupt possesses the legal title only, but no beneficial interest, the title does not vest in the assignee and cannot be conveyed by him (Rhodes V. Blaekiston, 106 Mass. 334); and the mere fact that the assignee inventories certain land as belonging to the estate of the bankrupt, and sells and conveys same under order of court, does not operate as an adjudication that the laud was the property of the bankrupt at the time of the filing of the petition, but only that whatever of title the bankrupt then had is conveyed to the pur- chaser : WUkins v. Tourtellott, ■ 28 Kan. 825. § 308] ASSIGNMENTS, INSOLVKNCY AND BANKRUPTCY. 335 This presents substantially the contents of the assignment, and conveys all the information necessary to be shown in the abstract, but should the examiner so desire he may set forth the instrument in greater detail. Under the law of 1898 all property of the bank- rupt which, "prior to the filing of the petition, he could by any means have transferred, ' ' vests in the trustee immediately upon his appointment .^^^ §308. Assignee's or Trustee's Deed. In order to present the synopsis of bankruptcy proceedings in a connected manner, and as it should appear in the abstract, it is deemed advisable to give the assignee's deed in this place rather than where it more properly belongs, in the chapter devoted to official conveyances. These deeds, like other conveyances by trustees, are usually long and prolix, and considerable discrimination must be exercised in pre- paring the abridgment, in order to present everything that can shed light on the transaction and yet avoid burdening the abstract with unnecessary particulars of useless verbiage. The following form, prepared from a long and technical deed, will serve to explain the meaning of these remarks and illustrate the methods described : Robert E. Jenkins, Assignee in Bankruptcy of the Es- tate and Effects of Andrew Smith, Bankrupt, to Alexander Hamilton. Assignee's Deed.^" Dated Fei. 10, 1869. Recorded Feb. 12, 1869. Book 100, page 200. Sets forth that, in accordance with the provisions of the Revised Statutes of the United States, Title "Bankruptcy," a petition was filed in the District Court of the Umited States for the Northern District of Illinois, on Nov. 10, 1868, by said Andrew Smith, and on Nov. 16, 1868, said Andrew Smith was duly adjudged and declared bankrupt; and on Nov. 16, 1868, said Robert E. Jenkins was duly appointed assignee of the estate and effects of said bankrupt by U. N. Hibbard, one of the Registers in Bankruptcy of said Court, which said appointment was thereafter duly approved and confirmed by said Court, and 39a Aet. 1898, § 70. signee, needs no other recitals and 40 This is an abridgement of a will be good, if in other respects deed under the law of 1867. Under sufficient, the same as a deed made the law of 1841 a deed containing a by the bankrupt before the adjudi- copy of the decree of bankruptcy cation; Ryder v. Eush, 102 111. 338. and of the appointment of the as- 336 ABSTRACTS OF TITLE. [§ 308 on Nov. 16, 1868, said Register conveyed and assigned to said Jen- kins, as such assignee, all the estate, real and personal, of said hanhrupt, including all the property of whatsoever kind, of which said bankrupt was possessed, or in which he was interested, or which he was entitled to have on Nov. 10, 1869 (excepting only such property as is excepted hy the 5045th section of said Revised Statutes) . That said bankrupt, Andrew Smith, appears to have been, on said last mentioned date, possessed of or entitled to an interest in real estate and property hereinafter mentioned. And sand assignee having first given notice, by publication once a week, for three consecutive weeks, pursuant thereto, on Feb. 1, 1869, offered for sale, and sold said real estate and property at public auction, and at said sale, second party was the highest bidder, and became the purchaser thereof for $10,000.00; which sale was, on Feb. 10, 1869, approved and confirmed by said Court, and said Court did, on the day and year last named, order and direct sand assignee to execute and deliver to said second party a deed for the real estate so sold, conveying the sam,e to him,, in accordance with the terms of said sale. Now, therefore, in consideration of the premises, and $10,000.00, remises, releases, sells, conveys and quitclaims, all the right, title, interest, estate, claim and demand of said bankrupt, which he had on Nov. 10, 1868, and of said Robert E. Jenkins, as assignee afore- said, in arid to the following described real estate, to wit: [Here set out the description of the property conveyed, employing the language of the deed], with all the improvements, rights, priv- ileges and appurtenances thereto belonging, but subject to all un- paid taxes and tax liens, and to all liens and incumbrances, unless expressly excepted, released or discharged by the orders of said Court, concerning said sale, and subject to all the terms and con- ditions of said sale. Certificate of acknowledgment, dated Feb. 10, 1869. The foregoing will serve to suggest the treatment of a trustee's deed under the law of 1898, and the manner in which its recitals should he shown. The title conveyed by the assignee or trustee is no better than that held by the bankrupt, and the purchaser takes it charged with all the equities to which it was subject in his hands," and bur- « "Walker v. Miller, 11 Ala. 1067; Stow V. Yarwood, 20 111. 497; Har- ,309] ASSIGNMENTS, INSOLVENCY AND BANKETIPTCT. 337 dened with all liens, by mortgage or judgment, which existed against him at the time of his adjudication. § 309. Discharge in Bankruptcy. The effect of an adjudication in bankruptcy being to deprive the person adjudged a bankrupt of his power to take or convey property while resting under such sentence, it is proper that his restoration to civil rights should also be shown whenever the abstract discloses him in the character of a grantor or grantee after such adjudication. This may be accom- plished by a simple note of the fact. Where a composition has been effected, such note would be given in connection with a brief reference to the petition and proceedings in the bankruptcy court. "Where the debtor's property has passed from him to the assignee, or where a trustee has been appointed, and the subject of the ex- amination consists of property in which the bankrupt has acquired an interest since the date of siieh assignment or appointment, the fact of discharge may be shown as an independent circumstance, its legal import being merely to show the removal of disability; thus, din V. Osborne, 94 111. 571. In this ease, the court held that an assignee in bankruptcy does not take the title to the property of the bank- rupt as an innocent purchaser with- out notice, free from latent equities, etc., but as a mere volunteer, stand- ing in the shoes of the bankrupt, as respects the title, and having no greater rights in that regard than the bankrupt himself could assert. The bankrupt had, prior to the time he was. adjudged a bankrupt, con- veyed land, but the deed remained unrecorded, and the court held, that no title would pass to the assignee as against the purchaser holding un- der the prior unrecorded deed. "Suppose," said Walker, C. J., "the debts had been paid without the sale of the land, does any one suppose the bankrupt could have held it against his former grantee, whether or not his grantee had recorded his deeds? Where the purchaser had paid his money, and received the conveyance, his equities are surely equal to that of other creditors. His Warvelle Abstracts — 22 deed operated to convey to him the title, and the creditors have ad- vanced nothing to procure a lien on the land, and the appointment only operated as a transfer of whatever interest the bankrupt held for the benefit of his creditors." But the learned judge further observes: ''If, however, in such a case the assignee were to sell and convey the land to an innocent purchaser without notice, and he were to place his deed on record before that of the prior purchaser, a difEerent case would be presented." In the case of Holbrook v. Dickenson, 56 111. 497, where the assignee had sold the land under a similar state of facts, it was held that the prior purchaser could not set up or show his unrecorded deed to defeat the title of the assignee's grantee, and this is the generally received doc- trine resulting from the plain con- struction of the recording acts. And see Bank v. Stone, 80 Ky. 109; Wilkins v. Tourtellott, 28 Ky. 285. 338 ABSTRACTS OP TITLE. [§309 In the matter of the iankruptcy of James L. Sherman. In the U. S. District Court, Northern District of Illinois. Case Fo. 3,529. Voluntary Petition. Filed December 19, 1877. Discharge entered and issued to said Bankrupt, February 28, 1879. The general effect of a discharge in bankruptcy is to free the bankrupt from all liability with respect to debts proved against his estate, as well as all debts founded on contracts made by him which might have been so proved. CHAPTER XIX. AGREEMENTS FOR CONVEYANCE. § ,310. Land contracts. § 311. Eelation of parties under land contracts. § 312. Effect and operation. § 313. Nature and requisites. § 314. As affected by recording acts. '§ 315. Construction of land con- tracts. ' Ifi Poimal parts. §317. Assignment of the contract. § 318. Performance — Sufficiency of deed and title. §31!) Forfeited contracts. S ■■■■2(). Bond for deed. §321. Agreement for conveyance by will. § 310. Land Contracts. Land contracts, or agreements to deed, are of frequent occurrence on the records, and occasionally bonds for the same purpose will be found, though these latter are now practically obsolete. Should the contract be executory its eon- tents should be set forth with considerable minuteness, partic- ularly such parts as relate to the parties, the subject-matter, and the conditions of conveyance. If, on the contrary, the contract has been consummated by deed, a passing allusion to it, as part of the chain of title, will be sufficient. Where the subsequent deeds do not show a substantial compliance, a full synopsis may become material, although the contract has been executed, and. the ex- aminer should, as a precautionary measure, first satisfy himself on this point before abstracting the instrument. In executed eon- tracts, however, this is not of vital importance, for acceptance of a deed ordinarily merges any provisions of the contract of sale which are different from the deed.^ 1 Davenport v. Whisler, 46 Iowa, 287; Bull v. Willard, 9 Barb. 641; Jones V. Wood, 16 Pa. 25. This is the accepted doctrine, yet it is sub- ject to large qualification. The actual contract as shown by the agreement, will still be competent, where through fraud, inadvertence or mistake, a different deed has been delivered; Snell v. Insurance Co., 98 TJ. S. 85, and cases cited. Where there has been, by mutual mistake, a failure to embody in the deed the actual agreement of the parties as evidenced by the prior written agreement, and the meaning of the prior agreement is clear, and nothing has occurred between the parties after it was signed and de- livered to vary its terms, except the mere fact of the delivery of the deed, and the deed not effecting what both parties intended by the actual contract which they had made, a court of equity will inter- fere and reform the deed so given 339 340 ABSTRACTS OP TITLE. [§ 311. § 311. Relation of Parties Under Land Contracts. The relation subsisting between the parties to an ordinary contract for the conveyance of land upon the future payment of tlie purchase money, is analogous to that of equitable mortgagor and mortgagee, the vendor holding the legal title as security for the unpaid pur- chase money, which security is essentially a mortgage interest. The vendee has an equity of redemption, and the vendor a cor- relative right of foreclosure u.pon default in the payments.* In this, as in other cases, the mortgage is the incident, the debt the principal, and the vendor has no further interest except to the extent of the security the mortgage affords for his debt.* §312. Effect and Operation of the Contract. The effect of a valid contract for the conveyance of land, is to vest in the vendee the equitable estate in the land, leaving the legal title in the vendor as a mere lien or security for the unpaid purchase money.* The vendor, in such case, is simply a trustee having an interest in the proceeds but not in the land, and this interest, upon his decease, would pass to his personal representatives and not to his heirs. The heirs would, it is true, take the legal title by descent, but only as it was vested in the ancestor, which was as a mere security for the debt. The debt being due to the administrators or exec- utors of the vendor, and the lien being considered as held by the heirs in trust, and simply as a pledge or security for its payment, on payment of the debt the heirs would be compellable in equity to execute the trust by the conveyance of the title, while the pur- chase money would go to the personal representatives.^ The equity is a proper subject of devise by the vendee, or, in the event of his dying intestate will descend to his heirs the same as other realty, and in them is vested the equity of redemption. in accordance with the orginal 4 Eeed v. Lukens, 44 Pa. 200 ; and manifest intention: Elliot v. Gary v. Whitney, 48 Me. 516; Mil- Sackett, 108 TJ. S. 132. It would ler v. Corey, 15 Iowa, 166. seem, therefore, that in ease of dis- S Gerard's Tit. to Eeal Est. 472; crepancy or repugnancy the agree- Johnson v. Corbett, 11 Paige, 265; ment should be fully abstracted Moore v. Burrows, 34 Barb. 173. or at least sufa.cient thereof given The agreement to deed, above re- to show the repugnancy. ferred to, is very different from 2 Church v. Smith, 29 Wis. 492 ; the contract of purchase or con- Button V. Schroyer, 5 Wis. 598; ditions of sale, under the English King V. Euckman, 21 N. J. Eq. system of conveyancing. The former 599; Baldwin v. Pool, 74 111. 97; contemplates a sale already made, the Fitzhugh V. Maxwellj 34 Mich. 138; latter a sale to be made. Dew V. Bellinger, 75 N. 0. 300. 3 Strickland v. Kirk, 51 Miss. 795. § 313] AGREEMENTS FOE CONVEYANCE. 341 §313. Nature and Requisites. The statute of frauds, substan- tially re-enacted in all the States, provides that no action shall be brought to charge any person upon any contract for the sale of lands, unless such contract or some note or memorandum thereof shall be in writing, and signed by the party to be charged there- with, or some other person thereunto by him lawfully authorized, and where there is no exception contained in the statute the courts will not create any.® No special form is required as an evidence of such contract, and courts seem inclined to allow a wide latitude in this particular.'' The statute permits the memorandum to be signed by the vendor of his agent, yet it seems that if made by an agent it should still be in the principal's name.* If the terms of the contract, the consideration, the subject-matter of the sale, etc., are stated with reasonable certainty, the memorandum is sufifi- cient. Form is not important, nor need it be under seal,^ the one indispensable requisite being, that it be in writing and signed by the vendor or his agent ; ^^ and the power to the agent, unless pro- vided otherwise by statute, may be given orally .^^ It is, however, a familiar rule in this branch of the law, that a contract which equity will specifically enforce, must be certain in its terms, and the certainty required has reference both to the description of the property and the estate to be conveyed. Uncer- tainty as to either, not capable of being removed by extrinsic evi- dence, will invalidate the contract.^^ Less particularity is re- quired, however, than in case of actual conveyances of the same land, and, as a rule, any description of the property will be suffi- cient provided it be such as to enable a surveyor to locate the land.^' Every contract which gives no means of identifying the boundaries of the land sold,^* which furnishes no information re- garding the terms of the contract,^* or which by faulty or imper- 6 Hairaton v. Jandon, 42 Miss. 11 Whelan v. Sullivan, 102 Mass. 380. 204; Holmes v. Evans,. 48 Miss. 7Beniis v. Becker, 1 Kan. 226. 247. • Morgan v. Bergen, 3 Neb. 209. 15 McGuire v. Stevens, 42 Miss. 9 Moss V. Atkinson, 44 Cal. 5; 724. The writing relied upon to es- Buttenberg v. Main, 47 Cal. 213. tablish such a contract need not 10 Haydock v. Stow, 40 N. Y. describe either the consideration or 363. the lands which are the subject of 11 Huttenberg v. Main, 47 Oal. the sale, otherwise than by a ref er- 213; McWhorter v. McMahan, 10 enee therein to some extrinsic fact Paige, 386. or instrument by means of which 12 Whelan . v. Sullivan, 102 Mass. the consideration and the land can 204; Peters v. Phillips, 19 Tex. 74. be known with sufficient certainty: 13 White V. Hermann, 51 lU. 243. Washburn v. Fletcher, 42 Wis. 152. 342 ABSTRACTS OP TITLE. [§ 314 feet description renders the location of the property uncertain,^^ will be incapable of specific enforcement. §314. As Affected by the Recording Acts. Interests in land acquired through contracts of purchase fall within the protection of the recording acts. Therefore, although another may be inter- ested as a part owner of land sold by contract, if the record fails to show that interest, and shows the entire title in the vendor, the purchaser from the apparent owner of record, without notice of the real facts, will hold the title, and so of bis assignee.^'' This is in conformity to the general rule of law which provides that, in the absence of actual notice of the true state of a title, or of facts sufScient to put him on inquiry with respect thereto, a party may always rely upon the record.^' § 315. Construction of Land Contracts. A contract for the sale of land is, for most purposes, regarded in equity as if already specifically executed.^® When consisting of two instruments they will be construed together and effect given as of one entire instru- ment.'"* Time, unless specifically made of the essence of the con- tract, will not be construed to the disadvantage of the vendee, and a contract which uses the ordinary terms to express the time for the payment of the purchase money, without any express inten- tion that such time is material, does not make it so.^^ § 316. Formal Parts. The examiner will note the usual inci- dents of dates, parties, property, etc., as in other instruments, and in addition, the methods of transfer and conditions and stipula- tions annexed to the contract, if any. Though usually executed by both parties, this is not a requisite, and an executory contract is valid and binding and can be as effectively enforced by the vendee, if signed by the vendor alone.^^ It is advisable, however, particularly where the contract contains mutual covenants or stipulations, to note a divergency in this respect. The following is submitted as a synopsis of the salient features of an ordinary executory contract : ISGigos V. Cochran, 54 Ind. 593. 20 Beman v. Green, 1 Duer (N. Y.), 17 Allen v. Woodruff, 96 111. 11. :i82. 18 Friend v. Ward, 126 Wis. 291, 21 Eeed v. Jones, 8 Wis. 392. 104 N. W. 997, 1 L. E. A. (N. S.) 22 Vassault v. Edwards, 43 Cal. 891; Ogle v. Turpin, 102 111. 148. 458; Ewins v. Gordon, 49 N. H. 19 King V. Euekman, 21 N. J. 444. Eq. 599. § 317] AGREEMENTS FOE CONVEYANCE. 343 Alfred Burwell, with Charles Ddbhson. Agreement to Convey [or, Land Con- tract.'] Dated March 1, 1883. Recorded March 3, 1883. Book 210, paffe 590. First party, on payment of $500.00, agrees to convey to second party hy good and sufficient warranty deed, the following de- scribed land situated in the town of Mount Pleasant, Bacine County, Wis., described as [here set out the description] free from all liens and incumbrances, except [here set out incumbrance re- citals, if any]. Second party, in consideration of the foregoing, agrees to pay said sum of $500.00 in manner following, to wit, etc.; [state ,the terms briefly]. Time to be the very essence of the contract. Further mutually agreed that said second party shall have no right to the possession of said premises as purchaser, until after full payment of purchase money, and that he takes same as tenant from said first party until the last payment has been made. Executed by both parties and acknowledged by them March 1, 1883. Instruments of this kind are more informal than deeds and fre- quently are not acknowledged, nor does it seem that acknowl- edgment is necessary. Any divergence in this respect should, however, be noted in the abstract, as : Witnessed but not acknowledged. Where the agreement has been consummated by deed, and par- ticularly where the transaction is ancient, only a brief allusion will be necessary in the abstract. In such cases the salient facts may be shown in briefest terms. The following is a suggestion : William Smith ] Agreement with I Dated, etc. Thomas Jones. J * * * * * For conveyance by warranty deed of the North East qua/rter of Section- 10, Town 39, North, Range 13, East of the Third P. M., on payment of $2,000.00. §317. Assignment of the Contract. In the assignment of an executory contract for the sale of land, there is no implied cove-. 344 ABSTRACTS OF TITLE. [§ 317 nant, on the part of the assignor, of title to the land in the vendor ; all that can be implied is a warranty that the assignor owned the contract and had the right to assign it, and that the signatures thereto are genuine.^' Such assignments are usually very brief and informal, and consist of a bare recital of the fact of assign- jnent. Whether appended to the original or made by a separate instrument, they should be attended by the same solemnities rela- tive to execution, etc., as were necessary in case of the original, and should be shown in the abstract as a separate link in the chain. The effect of an assignment is to convey to the assignee all the interest of the assignor therein, and it entitles him to demand and receive a deed of conveyance from the vendor or his heirs upon payment of the purchase money due thereon. He takes it sub- .■ject to all the equities existing against his assignor, and is entitled to all the beneficial incidents.^* The delivery of a contract for the purchase of land by the pur- chaser to one to indemnify him against loss by becoming a guar- antor for the purchaser, without any written assignment thereof, constitutes an equitable mortgage, and a subsequent written assign- ment to another who has no interest in the same, and where no words of conveyance are used, would be inoperative.^^ A written assignment of a deed or contract for the conveyance of land is not necessary to the creation of an equitable mortgage, and the only effect of such written assignment is, that when the instrument and assignment are recorded, they will afford constructive notice of the mortgagee's rights, and also be evidence of the fact of assignment in case of a dispute.^^ The doctrine of equitable mort- gages by deposit of title deeds does not at present meet with much favor in this country, however, and strict proof of notice is gen- erally required from the equitable mortgagee to bar the rights of subsequent purchasers or incumbrancers,*'' while in several States the doctrine does not prevail at all.*^ 23 Thomas v. Bartow, 48 N. Y. 26 Chase v. Peck, 21 N. T. 584; 193. Jarvis v. Butcher, 16 Wis. 307; 24 Tompkins v. Seely, 29 Barb. Allen v. Woodruff, 96 111. 11; Hall 212; Cromwell v. Fire Ins. Co., 44 v. MeDufE, 24 Me. 311; Mounce v. ^I Y. 42: Gerard's Titles, 475; Beyers, 16 Ga. 469. Reeves v. Kimball, 40 N. Y. 299; 27Bickne]l v. Bicknell, 34 Vt. 498; Parmly v. Buckley, 103 111. 115. Story Eq. Jr. § 1020. 25 Allen V. Woodruff, 96 111. 11; 28 Bowers v. Oyster, 3 Pa. 239; and see, Story Eq. Jur. § 1020 ; 2 Van Meter v. McFadden, 8' B. Mon. Wash. Eeal Prop. 82; Mandeville v. (Ky.) 435; Strauss* Appeal, 49 Welch, 5 Wheat. 277. Pa. St. 358. § 318] AGREEMENTS FOE CONVEYANCE. 345 § 318. Performance— Sufficiency of Deed and Title. A familiar form of expression used by conveyancers in drafting instruments of the character under consideration, in relation to the deed to be given, is, "good and sufficient," though not infrequently the contract expressly calls for a warranty deed. The term ' ' good and sufficient deed," etc., has been the subject of much litigation and productive of a large amount of judicial reasoning, both as re- gards the form of the instrument and the title conveyed thereby, in this, as in most other much litigated questions, a complete harmony of opinion has not prevailed, but it would seem to be the preponderating doctrine, that a covenant to give a good and suf- tieient conveyance of land is satisfied by a quitclaim deed,** yet with respect to the title, such a conveyance can only be performed by a deed which conveys the entire estate,** and vests in the pur- chaser an indefeasible title.*^ A contract to execute a good and sufficient warranty deed entitles the purchaser to a warranty deed of the land free from all incumbrances.** In every contract for the sale of lands, whatever may be the language in which it is couched, there is an implied undertaking to make a marketable title, unless such an obligation is expressly excluded by the terms of the agreement,** and, in the absence of any stipulation as to the kind of conveyance, the presumption is that the vendor undertook to make such a conveyance as wiU ren- der the sale effectual.** Special attention is directed to these matters in this connection, from the fact that it is at this period of the transaction that an attorney is usually called to pass upon the merits of the proffered title. "Whatever may be the medium of transfer, a searching investigation should be given to the title, which, if perfect in the person proposing same, renders the vehicle of conveyance of minor importance; but an offer to make a quit- 29 Kyle V. Kavahagh, 103 Mass. siCelevau v. Duncan, 49 N. Y. 356; Thayer T. Torrey, 37 N. J. L. 485; Davis v. Henderson, 17 Wis. 339; Contra Watkins v. Eogers, 21 105; Parker v. Parmlee, 20 John. Ark. 298. That parties have made 130. a wrj.tten agreement for a sale, with- 32 Davidson v. Van Pelt, 15 Wis. out providing for any warranty, 341; Burwell v. Jackson, 5 Seld. indicates that they did not intend (N. Y.) 536. there should be any warranty; and 33 Holland v. Holmes, 14 Fla. 390; if the conveyance made is only of Hill v. Bessegien, 17 Barb. 162. the right, title and interest of the Compare, Johnston v. Mendenhall, 9 vendor^ he can not be held liable for W. Va. 112. defects of title, except on the ground 34 Hoffman v. Pelt, 39 Gal. 109; of fraud or concealment: Johnston but consult Pitch v. Willard, 73 111. V. Mendenhall, 9 W. Va. 112. 92. SOTaft v. Kessel, Wis. 273. 346 ABSTRACTS OF TITLE. [§ 318 claim deed, which conveys only the vendor's interest, is not a com- pliance with an agreement to make title in a case where the chain of title upon the public records is defective or broken, or the land is burdened with liens and incumbrances.*^ In executory eon- tracts the purchaser is never bound to accept a doubtful title.** Whenever the contract calls for a specific title or method of conveyance, the vendor must convey as specified ; *'' thus, where a purchaser has contracted for a title of record, he can not be com- pelled to take a title depending upon adverse possession under the statute of limitations,** although it may be perfectly good.** But where the vendor of land assumes no responsibility as to his title, and is to make only a quitclaim or special warranty deed, but is to furnish a satisfactory abstract of title, the purchaser, for a reasonable objection to the title, may elect whether he will accept a conveyance or rescind the sale, provided such election is made with no unnecessary delay.** If he elects to take it under a unilateral contract, any delay on his part will be regarded with especial strictness, the fact of objection in such case not justifying great delay in performance, and it has been held, under similar circumstances, that if other written evidences furnished in con- nection with the abstract, show a marketable title, this will be sufficient, although the abstract of itself does not.*^ § 319. Forfeited Contracts. Agreements for conveyance which do not contemplate an immediate sale are mainly resorted to by two classes; the one, where, by reason of financial inability, no immediate consummation of the contract of sale can be effected; the other, where parties desire to control the disposition of prop- erty for a limited time while awaiting other developments. In each case forfeitures often occur, sometimes evidenced by fore- closure proceedings, but more frequently by an express or implied declaration of forfeiture. Much stress is often placed by counsel upon the fact of unful- filled contracts of sale appearing in the chain of title, and objec- tions of a serious nature are frequently founded upon them, yet, as a rule, they are formidable only in appearance. Where a con- tract for the sale of land provides that if the purchaser fails to 3B Holland v. Holmes, 14 Pla. 38 Delevan v. Duncan, 4 N. T. 390. 485; Tomlin y. MeChord, 5 Marsh. 36 Delevan v. Duncan, 49 N. Y. (Ky.) 138. 485; Koberts v. Bassett, 105 Mass. 39 Page v. Greely, 75 111. 400. 407. 40 Fitch V. Willard, 73 111. 92. 37 Scott V. Simpson, 11 Heisk. 41 Welch v. Dutton, 79 111. 465. (Tenn.) 310. § 320] AGREEMENTS FOE CONVEYANCE. 347 perform any of his covenants the vendor or his assigns shall have the right to declare the contract null and void, a subsequent sale by such vendor to another party for a valuable consideration, after the time fixed for performance, is, in effect, a declaration of forfeiture of the purchasers' contract.*^ Subsequent purchasers of land, in the absence of express notice of latent equities in others than their grantors, can only be affected by such legal consequences as may be fairly drawn from the record itself; and when the record shows that the claim of a prior purchaser has been cut off and defeated by a sale or fore- closure, or by a forfeiture of his contract, such subsequent pur- chasers will have a right to rely on what is thus disclosed.*' An unfulfilled contract of recent date, however, should always be closely scrutinized and the fact of forfeiture clearly established, for it must be remembered that a vendor in such a contract can do no act in derogation of his vendee's title when such vendee is not in default. Therefore, should the vendor convey to others while such contract is still subsisting, all persons who claim any interest in the land, with notice of the contract, will be held to perform such contract to the same extent that the original vendor would be bound if he had retained the title.** § 320. Bond for a Deed. Bonds for the conveyance of land or interests therein, though formerly much in vogue, have now fallen into disuse, and when shown are usually in the earlier links of the chain. As in the case of land contracts, when followed by deed only a brief notice is required, while if the condition remains un- fulfilled a greater degree of detail is necessary. The usual formal requisites of this class of obligations are equally necessary to bonds for title, and in addition, as it provides for a transfer of land, the essentials necessary to entitle it to record and to afford constructive notice, as acknowledgment and the like; an example is here given : James Thompson to Thomas Wilson. Bond for Deed. Dated J\dy 1, 1882. Recorded July 3, 1882. Vol. "B" of Deeds, page 252. In the penalty of $1,000.00. 42Streeper v. WilUams, 48 Pa. St. 44 Tate v. Pensacola, Etc. Co., 37 450; Grey v. Tubbs, 43 Gal. 364; Fla. 439. Cmnmings v. Eogers, 36 Minn. 317. 48 See Warren v. Richmond, 53 111. 54; Warder v. Gornell, 105 111. 169. 348 ABSTRACTS OF TITLE. [§ 320 Condition for the conveyance, by "good and sufficient" deed, of land in Kenosha County, Wis., described as the south half of the southeast quarter of Section ten. Town one north. Range twenty-three, east of the 4th principal meridian, on payment of $500.00. Acknowledged July 1, 1882. Special provisions, if material, should be shown as they oeeur. A bond to convey land npon payment of the stipulated price is evidence of a mutual agreement of the obligee to purchase and of the obligor to sell. The agreement of one party is a considera- tion for that of the other, and it is immaterial that the obligation of the one party is secured by bond, and that of the other is not thus secured.*^ It will be understood that the foregoing remarks have reference only to the right of a vendee to compel perform- ance by the vendor. If relief is sought against the vendee then he must sign the instrument before he can be charged. §321. Agreements for Conveyances by Will. Agreements to convey need not provide for the delivery of a deed, for an agree- ment to devise property by will may be sub.jected to a specific per- formance by a court of equity, after the death of the granting party, with the same effect as a contract to convey while living. It has been said by Williamson, C. : " There can be no doubt but that a person may make a valid agreement, binding himself legally to make a particular disposition of his property by last will and testament. The law permits a man to dispose of his own property at his pleasure ; and no good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by conveyance, to be made at some specified future period, or upon the happening of some future specified event. It may be unwise for a man to embarrass himself as to the final disposition of his property, but he is the disposer by law of his fortune, and the sole and best judge as to the manner and time of disposing of it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it is governed in the exercise of this branch of its .iurisdiction. ' ' *® 45 Bwins V. Gordon, 49 N. H. 46 Johnson v. Hubbel, 5 Am. Law 444. The rule is the same in case Eeg. 177; Stephens v. Eeynolds, 6 of agreements to convey signed by N. Y. 458; Wright v. Tinsley, 30 the vendor only. See Vassalt v. Ed- Miss. 389; Mundorf v. Howard, 4 wards, 43 Cal. 458. Md. 459. CHAPTER XX. LEASES. § 322. Nature and requisites. § 325. Implied covenants. § 323. Formal parts. § 326. Agricultural lands. § 324. Covenants and conditions. § 327. Assignment of lease. §322. Nature and Requisites. A lease is a contract for the possession and profits of land and tenements on the one side, and a recompense of rent or other income on the other; or it is a conveyance to a person for life or years, or at will, in considera- tion of such rent.^ The estate or interest conveyed by a lease is personal in its nature, whatever may be the duration of the term, and falling below the character and dignity of a freehold, it is regarded as a chattel interest, and is governed and descendible in the same manner.^ When made in writing, as it generally must be if the term exceeds one year in duration, a lease is usually mutually signed in duplicate and interchangeably delivered by the parties,* but if only signed by the lessor, its acceptance by the lessee raises a promise on his part to pay the rent reserved and faithfully observe all the stipulations and conditions which the lease shows were to be observed or performed by him.* Whether an instrument shall be considered a lease, or only an agreement for one, depends on the intention of the parties, as collected from the whole instrument, and the law will rather do violence to the words than break through the intent of the parties by construing such an instrument as a lease, when the intent was manifestly otherwise.'' The proper definition of a lease embraces only such instruments of conveyance as transfer to the lessee a less estate than is pos- sessed by the lessor, thus leaving a reversion in him,* and this 1 Jackson v. Harsen, 7 Cow. 326; are regarded as original: Dudley v. 2 Bl. Com. 217. Sumner, 5 Mass. 438; Taylor's 2 2 Kent Com. 342; Goodwin v. Landlord and) Tenant, 106 (6tli Goodwin, 33 Conn. 314. Ed.). 8 The copy delivered to the ten- 4 Pike v. Brown, 7 Oush. 134. ant is called the original lease, the B Jackson v. Delacroix, 2 Wend, one to the landlord the counterpart, 433. Ibut for all practical purposes both SWillard's Conveyancing, 425. 349 350 ABSTRACTS OF TITLE. [§ 322 in the sense in which the term is now employed, yet formerly it was not uncommon to grant land in fee, reserving an annual rent charge, notwithstanding there was no reversion, and the covenant to pay such rent ran with the land, as well as the condition of forfeiture and re-entry for its non-paymentJ § 323. Formal Parts. Where a lease is found upon the records which has expired by its own limitation, it raises a vexed question among examiners as to whether it should be shown or passed without notice. It can in no way affect the title ; it is not a charge or incumbrance, nor is it even a cloud. It may with propriety be disregarded unless followed by a subsequent renewal, but should the examiner deem it expedient to note it, as being included in and covered by his certificate of search, a very brief statement by way of appendix would seem fully sufficient. When for a short or almost expired term, being a charge upon the fee, it may be shown briefly, but when for a long term of years it should be shown fully and succinctly. When for ninety-nine years, or re- newable forever, it has much of the dignity and many of the attributes of a conveyance of the fee and requires corresponding treatment. When shown fully, the examiner will observe the names of parties as in case of deeds; the dates; the description; the term; the rent reserved; the general and special covenants; the conditions and restrictions, and the special agreements, if any. The execution and authentication should comply with the statute. Whenever a lease is of sufficient importance to show in extenso the entire instrument should be carefully perused and the cove- nants and conditions critically observed. The aid of an experi- enced conveyancer is frequently dispensed with in preparing in- struments of this character ; printed forms are generally employed, and, when they are not obtainable, copies are made from books of forms or from old instruments. In this way covenants are created without being well understood, and which often astonish the parties to be bound when occasion arises which calls for the per- formance of them. The dates are important in leases, much more so than in abso- lute conveyances, and frequently are of controlling efficacy in determining the duration of the term. The words of limitation of the term will also be carefully noted, as also the words of for- feiture and ceaser. The proper words to be used in creating a limitation upon a term granted are, "while," "as long as," TVan Rensselaer v. Hays, 5 Smith, Ed. 177; Jackson v. Allen, 3 Cow. 68; 2 Sugd. Vend. 725, Perkins' 220. § 323] LEASES. 351 ' ' during, ' ' and ' ' until. ' ' ^ The words of grant are, ' ' demise, lease and let," or "to farm let," but these words, as in case of deeds, have lost much of their original technical efficacy, and any other words which show the intention will do as well.' The matter of execution, as sealing, acknowledgment, etc., is statutory, but as a rule neither of the afore-mentioned formalities are necessary. An example is appended : Bobert M. Johnson to and with Hiram W. Jamison Doc. 20, 140. Lease. Dated, etc. First party leases, demises and lets to second party the follow- ing described real estate in Cook County, Ills., to wit: [describe the property.] To hold for the term of ten years from the day of the date hereof; [or, a specific date, if inserted], at the annual rental of $500.00 payable semi-annually. Sadd second party covenants: for the payment of the rent re- served; for the payment of all taxes and assessments levied on said premises during the term aforesaid; against waste, against sub-leasing, etc. Said first party covenants: for quiet enjoyment ; for the renewal of the term hereby demised at the expiration thereof for the same time and upon the same terms as this indenture, etc. Provides, that in case said second party shall neglect, or fail to perform and observe any or either of before-mentioned covenants on his part to be performed, the term hereby demised is to cease and determine, and that first party may enter and repossess said ' premises, without further notice or demand and expel said second party (and those claiming under him) without prejudice. Provides further that in case the premises shall be' destroyed by fire or other imavoidable casualty, that the term hereby de- mised shall cease (or, that the rent be suspended, etc.). Signed and sealed by both parties. Acknowledgment. In many instances it will be necessary to set out the covenants and conditions with greater precision than in the example, par- BVannatta v. Brewer, 32 N. J. Bq. Taylor's Landlord and Tenant, 114 268. (6th Ed.). 9Hallett V. Wylie, 3 Johns. 44; 352 ABSTRACTS OP TITLE. [§ 323 ticularly in cases of ground leases for long terms and where the land demised has been highly improved with permanent build- ings by the tenant. In cases of leases for lives, more detail will be necessary in describing the term, and the provisions looking toward forfeiture. As a general rule, a lease of land for any number of years will not violate the statute against perpetuities,^' except in the ease of agricultural lands. § 324. Covenants and Conditions. Owing to the ignorance gen- erally prevailing of the legal effects of covenants in leases and other instruments, which are often executed without any particular inspection or knowledge of their contents, people are often sur- prised into contracts which neither party intended when the instru- ment was executed.^i The words "yielding and paying," etc., constitute a covenant for the payment of rent,^^ which runs with the land, and formerly, if not qualified by any exception or condi- tion, bound the tenant to pay rent during the continuance of the term, notwithstanding the buildings on the premises were destroyed by fire during the tenancy. ^^ Covenants for rebuilding, repairing, etc., run with the land and are obligatory upon both parties and their assigns,^* according as either of the parties are bound. The covenant to pay for any buildings, erected by the tenant, at the expiration of the term, runs with the land and inures to the benefit of the assignee. ^^ The covenant for renewal is one of the most important to be noticed by the examiner, and like those just mentioned is incident to the land.^® A covenant to renew implies the same term and rent, but not the same covenants,^'' and is sat- isfied, even though providing for renewal under the same cove- nants contained in the original lease, by a renewal omitting the covenant to renew.^* A covenant for indefinite renewals at the option of the lessee is, in effect, the creation of a perpetuity, and 10 Ee Hubbell's Trust, 135 Iowa may be especially enforced, provided 637, 113 N. W. 512, 13 L. E. A. (N. the application be made within a S.) 496. reasonable time al'ter the expiration 11 Phillips V. Stevens, 16 Mass. 239. of the former lease, and the owner 12 De Lancy v. Ganong, 5 Seld. 9. of the reversion or fee will be com- 13 Hallett V. Wylie, 3 Johns. 44. pelled to execute a, new lease. 14AIlen V. Culver, 3 Denio, 284. Banks v. Haskie, 45 Md. 209. 16 Lametti v. Anderson, 6 Cow. 18 Carr v. Ellison, 20 Wend. 178. 302; Van Eensselaer v. Pennimar, A covenant to renew which does not 6 "Wend. 569. state the terms or length of time of 16 Sutherland v. Goodnow, 108 111. such renewal, has been held void for 528. uncertainty: Laird v. Boyle, 2 Wis. ITEutgers v. Hunter, 6 Johns. 431. Ch. 218. The covenant for renewal § 326] LEASES. 353 therefore against the policy of the law.^' The burden of the payment of taxes and assessments is frequently assumed by the tenant, particularly in long terms, but whether assumed by lessor or lessee it runs with the land, and binds the respective assigns.*" The covenants of leases are usually protected by a condition avoiding the estate and working a forfeiture in case of breach, and this condition, which is of the essence of the lease, must always be noticed at such length as its importance seems to demand. It is not uncommon for the landlord to give the tenant, by an agreement in his lease, an option to purchase the demised prem- ises, and whenever such agreements are inserted they should be displayed in the abstract. §325. Implied Covenants. It is a fundamental principle that the law will always imply covenants against paramount title, and against such acts of the landlord as destroy the beneficial enjoy- ment of the premises.*^ §326. Agricultural Lands. To avoid perpetuities, as well as the creation of large manorial estates, a majority of the States have, either by a constitutional provision or an express statutory enactment, prohibited the lease or grant of agricultural land for a longer period than twelve or fifteen years, and leases made in contravention of this prohibition, in which there is reserved any rent or service of any kind, are declared to be void. The leases or grants contemplated by the law, are such as are held by the tenant upon a reservation of an annual or periodical rent or service, to be paid as a compensation for the use of the estate granted. It is still competent to make a grant for life, or lives, upon a good consideration to be paid for the estate, which considera- tion may be payable at once, or by installments, or in services, so that it be not by way of rent. To bring it within the law there 19 Brush V. Beecher, 110 Mich. Plater v. Cunningham, 21 CaL 233. 597; Morrison v. Bossignol, 5 Cal. This results from the principle of 64. A lease renewable forever is an law, that every grant carries with English exotic which never seems it an implied understanding on the to have thrived in our soil. In part of the grantor that the grant most of the States such leases are is intended to be beneficial, and that, invalid. so far as he is concerned, he will 20 Post V. Kearny, 2 Comst. 394 Oswald V. Oilfert, 11 Johns. 443 21Streeter v. Streeter, 43 111. 155 Boreel v. Lawton, 90 N. Y. 293 Hamilton v. Wright, 28 Mo. 199 Warvelle Abstracts— 23 do no act to interrupt the free and peaceful enjoyment of the thm^ granted. See Dexter v. Manley, 4 Cush. (Mass.) 24. 354 ABSTRACTS OF TITLE. [§ 326 must be a reservation of rent or serviee.^^ This may seem a subtle distinction, but it is one wbich the courts have made and which they strenuously enforce. A reservation is defined as a keeping aside, or providing, as when a man lets, or parts with his land, but reserves, or provides himself a rent or income out of it for his livelihood ; and a rent is said to be a sum of money, or other con- sideration, issuing yearly out of lands and tenements. It must be profit, but it is not necessary that it should be money. The profit must be certain, and it must also issue yearly. ^^. § 327. Assignment of Lea,se. To constitute an assignment of a leasehold interest, the assignee must take precisely the same estate in the whole or in a part of the leased premises which his assignor had therein. He must not only take for the whole of the unex- pired term, but he must take the whole estate, or in other words, the whole term ; 2* for the word ' ' term ' ' does not merely signify the time specified in the lease, but also the estate and interest that passes by the lease ; for the term may expire during the continu- ance of the time, as by .surrender, forfeiture, and the like.^^ The grant of an interest which may possibly endure to the end of the term, is not necessarily a grant of all the estate in the term. Whether the conveyance be in the form of a lease or an assign- ment, if it provides new conditions with a right of entry, or new causes of forfeiture are created, then the tenant holds by a dif- ferent tenure and a new leasehold interest arises, which can not be treated as an assignment or a continuation to him of the original term. When an estate is conveyed to be held by the grantee upon a condition subsequent, there is left in the grantor a contingent reversionary interest ; ^® and where by the terms of an instrument which purports to be an under lease, there is left in the lessor a contingent reversionary interest, to be availed of by an entry for breach of condition, which restores the sub-lessor to his former interest in the premises, the sub-lessee takes an inferior and differ- ent estate from that which he would acquire by an assignment of the remainder of the original term; that is to say, an interest which may be terminated by forfeiture, on new and independent saPairsell v. Stryker, 41 N. Y. is an assignee: Kearney v. Post, 1 480. Sandf. 105. 23 Stephens v. Eeynolds, 6 N. Y. 26 2 Black Com. 144. 458, 2 Blk. Com. 41. 26 Austin v. Cambridgeport Par- 24 Van Eansselaer v. Gallup, 5 isli, 21 Pick. 215; Brattle Square Denio, 454. The purchaser under a Church v. Grant, 3 Gray 147. mortgage of all the estate of a lessee, § 327] ABSTEACTS OF TITLE. 355 grounds, long before the expiration of the original term. If the smallest reversionary interest is retained, the tenant takes as sub-lessee, and not as assignee.^'' 27Duiilap V. Bullard, 131 Mass. 161; McNeil v. Kendall, 128 Mass. 245. CHAPTER XXI. MISCELLANEOUS EVIDENCE AFFECTING TITLE. § 328. General remarks. § 334. Official certificates. § 329. Irregular instruments. S 335. Incorporeal hereditaments. § 330. Municipal ordinances. § 336. Easements and servitudes. § 331. Executive approval of or- § 337. Party wall agreements. dinances. § 338. Letters. 5 332. Operation and effect of or- § 339. Affidavits. dinances. § 340. Continued — General requisites, i 333. Municipal resolution. § 341. Unrecorded instruments. § 328. General Remarks. In this chapter it is proposed briefly to notice a variety of instruments which are not susceptible of classification in other divisions of the work, but which have a direct bearing upon the question of title, and must bfe included in all properly prepared abstracts, whenever they appear upon the records during the period covered by the search. Of this nature are affidavits, municipal ordinances, letters, etc., all of which are proper, and, under certain conditions, competent evi- dence, in support of the facts so presented. § 329. Irregular Instruments. This is the name applied by ex- aminers, to all deeds and instruments in which the subject-matter is not sufficiently identified to permit them to be posted in the tract indices. They include "blanket" conveyances, that is, all instru- ments of conveyance in which the property is mentioned only in general terms and not specifically; letters of attorney giving only a general power; releases, confirmations, etc., which describe no property but allude to other instruments for identification; affi- davits of facts not directly connected with land, but which inci- dentally affect or implicate title; and all other instruments and documents which do not upon their face indicate the particular parcel of land they affect. In compiling the abstract these matters should receive careful attention, and not only should aU independent instruments which generally affect the title be shown but also appendices to instru- ments conveying other lands, where such appendices have any 356 § 330] MISCELLANEOUS EVIDENCE AFFECTING TITLE. 357 appreciable bearing upon the property in question. The following will serve to illustrate : Appended io Document 347,614, in hoolc 1086, page 631, recorded Sept. 13, 1881, is the followinff: Affidavit hy Thos. J. Walsh. Subscribed and sworn to Oct. 23, 1880. That he was a bachelor until July, 1860. §330. Municipal Ordinances. A city council is a miniature legislature, authorized to legislate for a locality, and its ordinances, within the power intrusted, have aU the force of laws passed by the legislature. It is restricted, however, to such matters as are not at variance with the general laws of the State, and are reason- able and adapted to, or proper for, the purposes of the corpora- tion. Ordinances must be consistent with public legislative pol- icy, and must not contravene common right. These are general principles universally recognized.^ Without entering into a discussion of the nature, requisites and validity of ordinances, which as a rule, must be determined by reference to the organic act or charter of the municipality, it may be stated generally, that such ordinances must be adopted by the proper body, and be published in the manner provided by law,^ the. practical operation of an ordinance dating from its passage and publication. When so passed and published they aiford con- structive notice to all persons bound to take notice of them.' The only occasion the examiner will have to show the acts of municipal bodies, will be in relation to the opening or vacating of streets and alleys, with an occasional conveyance of municipal property, which should be prefaced by a synopsis of the ordinance or resolution authorizing same. Being in the nature of public laws no record is required in the registry of deeds, though this may be accomplished by the individual, and recourse must usually be had to the corporate records. The abstract should show : the dates respectively of passage and publication, and, when recorded, the date of record; the subject-matter, briefly stated; and the attesta- ILong V. Shelby County, 12 Ee- 21 Dil. Municipal Corp. 376; Bar- porter, 285; Maxwell v. Jonesboro, nett v. Newark, 28 111. 62; Conboy v. 11 Heisk. (Tenn.) 257; Williams v. Iowa City, 2 Iowa, 90. Augusta, 4 Ga. 509; Mount Pleas- S Palmyra v. Morton, 25 Mo. 593; ant V. Breese, 11 Iowa, 399. Buffalo v. Webster, 10 Wend. 99. 358 ABSTRACTS OF TITLE. [§ 330 tion, if any is required. The following will more fully illustrate the subject: Vacation hy The Village of Jefferson. Ordinance, No. 1,000. Adopted Sept. 6, 1873. Recorded Sept. 15, 1873. Book 6 of plats, page 13. Recites, that whereas, a petition has been duly filed with the Board of Trustees of the Village of Jefferson, signed hy Thos. Wilson and LilUe M. C. Wilson, representing that they are the owners of Blocks 76 and 77 in Norwood Park, amd praying said hoard to order a vacation of all that part of Washington Street lying between said Blocks, commencing at Indiana Street and run- ning to Eastern Avenue. And whereas, satisfactory evidence having been filed by said petitioners of due notice of said application, a/nd no objections appearing, therefore it is. Ordained by the President and Board of Tritstees of the Village of Jefferson, that all that part of Washington Street, in Norwood Park, which lies between Blocks 76 and 77, beginning on Indiana Street and running through to Eastern Avenue, be and same hereby is vacated. Published Sept. 7, 1873. Note. — Appended to the record of the foregoing is a certificate by S. M. Davis, "Village Clerk," that same is a true copy of the original ordinance. Not infrequently a descriptive note setting forth the material facts will be sufficient to impart all necessary information. When- ever this method can be advantageously employed its use is recom- mended, in order that the abstract may not be burdened by un- important details. This plan will be found to produce eminently satisfactory results in cases where certain acts are required to foUow the ordinance before it becomes effective, anjj in such cases a full resume of the supplementary acts should be embodied in the note. The following example will more fully explain the method: Note. — From document No. 2708 of the municipal year 1894, of the files of the proceedings of the Common Council of the City of Chicago, on file in the office of the City Clerk of said city, it appears that an ordinance was passed by said Coun- cil on May 12, 1895, for the vacation of the East 135 feet of alley in Block 6, Jones' Subdivision of the Northeast quarter of Section 7, Town. 39 North, Range 14 East of § 330] MISCELLANEOUS EVIDENCE AFFECTING TITLE. 359 the 3d Principal Meriddan, but with a proviso that same should not take effect until a new alley 18 feet in width should have been opened from North to South through the south 170 feet of said Block, the East line thereof to he 135 feet West of Blank Street, in acordance with map attached to said ordinance; that said alley should he opened and plat of same placed of record within 30 days from passage of ordinance, otherwise same to he of no effect. The new alley referred to in the foregoing note would properly be shown as a subdivision of the block in question and the minutes of survey and plat would immediately follow. It will often happen that it may be deemed unnecessary or in- expedient to set forth the terms of an ordinance, or the examiner may be directed to show same briefly with a reference to the record for particulars. Thus, take the case of a transfer of territory from one municipality to another. In such event the action of both municipalities should be shown, yet this may be accomplished briefly, in most cases, by simple note, as for example : Note. — There was recorded on April 22, 1887, in Book 2047 at page 206, as Doc. 819,864, an ordinance for the annexa- tion of the territory of the Village of Jefferson, known as Section 36, Town. 40 North, Range 13 East of the 3d Prin- cipal Meridian, to the City of Chicago. Approved and rati- fied at the general election held Tuesday, April 1, 1887. Also, Recorded May 25, 1887, as Doc. 833,477, in Book 2047 at page 388, is an ordinance for the annexation to the City of Chicago of the territory emhraced within the limits of Section 36, Town. 40 North, Range 13 East of the 3d Principal Meridian, with the map of said annexed territory attached. For particulars reference is made to the records. Where the event is ancient and no questions have been raised respecting it, or where all questions growing out of it are settled, this brief mention will be sufficient to impart all the information necessary. On the other hand, if the event is recent a. more ample exhibition, of the instruments should, perhaps, be made. Matters of this kind, however, do not reach the title to the land and their significance, at best, is only political. The principal object of their insertion in the abstract is to appraise the person perusing it of the proper location of the property. 360 ABSTRACTS OF TITLE. [§ 331 §331. Executive Approval of Ordinances. In many cases the signature or expressed approval of the Mayor, or some correspond- ing officer, is required to give validity to an ordinance, and when the submission thereof to the executive of the municipality is made necessary by charter or general laws, a noncompliance will be fatal to the ordinance.* In such cases the fact of submission and approval should be noted as a material part of the abstract of the ordinance. §332. Operation and Effect of Ordinances. It does not seem that a municipal corporation, more than an individual, can convey the title to real estate in any other manner than by a duly exe- cuted deed,' and where a conveyance has been attempted by ordi- nance no title has been held to pass, while such an ordinance has further been held to be so defective as a conveyance as not to give color of title in support of an adverse possession.® A release of a right in real property, by ordinance and not by deed, will, it seems, be enforced in equity, when within the scope of the cor- porate power, and upon consideration,'' while the legal effect of a vacation of a public street or avenue, is to revest the title of the land embraced within its limits, in the original owner or person who dedicated same.* § 333. Municipal Resolutions. A resolution is an order of the council or governing board, of a special and temporary character,* but, as a general rule, has the same effect as an ordinance, as both are legislative acts.^** Where any matter is committed to the decision of the council by the charter, which is silent as to the mode, the decision may be evidenced by a resolution, and need not necessarily be by an ordinance,^^ hence it is customary in sales of the municipal real estate, to authorize the sale and transfer of same by a resolution which also directs the method of conveyance and nominates the persons who are to execute the deed.** 4 Babbidge V. Astoria, 25 Oreg. 417. 10 Sower v. Philadelphia, 35 Pa. BDill. Mun. Corp. § 451, and see, St. 231; Gas Co. v. San Franeiseo, Cofran v. Cofran, 5 N. H. 458; Ang. 6 Gal. 190. & Ames Corp. § 193. 11 State v. Jersey City, 3 Dutch, 6 Beaufort v. Duncan, 1 Jones L. (N. J.) 493. (N. C.) 239. 12 If the charter or constituent act 1 Grant v. Davenport, 18 la. 179. of the corporation prescribes a par- *Hyde Park v. Borden, 94 lU. 26; ticular mode in which the corporate Gebhart v. Keeves, 75 lU. 301. property shall be disposed of, that SBlanchard v. Bissell, 11 Ohio St. mode must be pursued: 2 Dill, on 96. Mun. Corp. § 447, and see McCracken § 334] MISCELLANEOUS EVIDENCE AFFECTING TITLE. 361 It would seem to be the prevailing doctrine that a municipal conveyance of real property which upon its face is regular, car- ries with it the presumption of a due and proper execution in pursuance of law;^* "hence," observes Mr. Dillon, "it is unnec- essary for the grantee or party claiming under it to produce the special resolution or ordinance authorizing its execution." ^* This may be true for the ordinary purposes of conveyancing, but can not be regarded as a safe rule in the preparation of an abstract, which should not only disclose suf&cient of the deed to show a regular execution upon its face, but also the authority in pursuance of which it was made, that counsel may know from inspection and comparison that it was duly executed,^® it being the duty of coun- sel, so far as may be, to reduce presumptions to certainties, and whenever an abstract is presented, showing a municipal deed but no order or resolution in support of it, a requisition should be made for the evidence of the authority under which it was executed. In actions for the trial of disputed land titles, where a deed relied upon is the act of a municipal corporation the author- ity for its execution must generally be put in evidence,^® and it would seem that counsel examining title should insist upon the same proof. §334. Official Certificates. Certificates of officers having the legal custody or supervision of records, etc., as well as of minis- terial officers in the performance of some legal duty, are of fre- quent occurrence. Usually they are appended to some kind of documentary evidence to which they have special relation, but they may be used as affirmative and independent proof of matters within the certifying officer's jurisdiction. Instances are afforded by the certificates of levy, attachment, etc., made by officers execut- ing the process of courts and which afford internal evidence of the matters therein recited. Aside from the certificates of officers, and others, reciting their own acts in connection with some particular proceeding in the V. San Francisco, 16 Cal. 591 ; Grojan Flint v. Clinton County, 12 N. H. 43. V. San Francisco, 18 Cal. 590, where See Hart v. Stone, 30 Conn. 94. it was held that where municipal 14 Dill. Mun. Corp. § 450. officers, under the authority of a void 16 Conveyances of real property by ordinance, had made sales of corpo- the officers of a municipal corporation rate real estate, no title passed, the must be made by virtue of a special ordinance and sales not having been authority for that purpose: Merrill in conformity to the charter which v. Burbank, 23 Me. 538. prescribed a rule for such cases. 16 Ward v. Lumber Co., 70 Wis. 13 Jamison v. Fopiana, 43 Mo. 565 ; 445. 362 ABSTRACTS OF TITLE. [§ 334 line of their official duty, there is a class of official custodians who certify from the records, books, files, etc., committed to their care, and to whose certificates, under their official seal, if they have any, the statute in some cases and comity in others, attaches a certain degree of evidentiary value. When a public officer is required or authorized by law to make a certificate or affidavit, touching an act performed by him, or to a fact ascertained by him in the course of his official duty, and to file or deposit it in a public office, such certificate or affidavit when so filed or deposited is received as presumptive evidence of the facts therein stated, unless its effect is declared by some special provision of law. Under this head come certificates of sale by masters in chancery and of levy and attachment by sheriffs, ex- amples of which will be found further on. Certificates annexed to other documents for the purpose of proof or verification do not, as a rule, require nor should they receive extended notice, but when standing alone, and as affirma- tive evidence of some particular fact, they acquire a certain dignity that calls for commensurate treatment. When these cer- tificates, for instance, allude to facts which appear from the books, files and records of the officers of State in regard to the transfer of land by or to the government, Federal or State, or by the State to individuals, the original evidence of which is not accessible, or has been destroyed or lost, they become of the highest importance and should be shown in detail. As, per example: Certificate hy Ernst G. Timme, Sec- retary of State, of the State of Wiscon- sin. Proof of Conveyance. Dated, etc. » * # Said Secretary certifies, that from the hoohs, files and records of the of- fice of Secretary of State, it appears that on the 10th day of June, 1850, the following described real estate, situated in the State of Wisconsin, viz.: [set out descrip- tion] was duly transferred iy the United States to the State of Wisconsin, and that on the 15th day of July, 1852, the above de- scribed real estate was duly troMsf erred by the State of Wisconsin to William Jones. Signed by said Secretary and the great (or lesser) seal of the State of Wisconsin affixed. Where certificates are appendant merely, the degree of notice must be determined by the character of the principal matter; § 336] MISCELLANEOUS EVIDENCE AFFECTING TITLE. 363 as, if in the foregoing case a transcript of books, files, etc., had been made, the certificate would simply have been by way of veri- fication, and the examiner might have shown this by a formal abstract of the instrument as above, or he might with equal pro- priety mention it in this manner: Certificate hy Ernst G. Timme, Secretary of State, that the "annexed amd foregoing" is a true and correct transcript of all books, files, records, certificates and other written or documentary evidence of title, on file or of record in his office, relating to or ap- perta/ining to the title to the lands described in the foregoing transcript, and of the whole thereof, appended. § 335. Incorporeal Hereditaments. In an Eliglish work on titles this subject would occupy no inconsiderable space, while in the compilation and examination of English abstracts it plays a con- spicuous part, yet in the United States the term is seldom used, while the number of strictly incorporeal hereditaments is very small.''' In this country they are usually such things as come within the definitions and general doctrines of easements and servi- tudes. §336. Easements and Servitudes. An easement is technically vmderstood to be raised or created by a grant, but may be re- served in a conveyance as effectually as by a grant by deed. Sep- arate instruments are rarely employed to create easements, but oc- casionally grants of rights of way will be found as well as instru- ments granting riparian rights, and in all cases, where such instru- ments are matters of record, purchasers of the land affected thereby will take the premises subject to whatever rights they may confer upon others and burdened with the stipulated service. '' Where an easement is appurtenant or appendant to an estate in fee in lands, or in gross to the person of the grantee for life or for years, it is incapable of alienation or conveyance in fee.'® When in gross, it is purely personal to the holder, and can not be assigned, nor will it pass by descent ; *" when appurtenant, it is attached to the land IT The principal incorporeal here- 18 Turpin v. E. E. Co., 105 111. 11. ditaments according to the common 19 Wash. Easements, 10 ; Koelle v. law; are: Advowsons and next prea- Knecht, 99 111. 496. entations, tithes, manors, franchises, 20 Smiles v. Hastings, 22 N. Y. 217; offices, commons, rights of way, of Koslle v. Knecht, 99 111. 496. light, wood, water, rents and annui- ties: Lee on Abstracts, *117; 2 Black, Com. 21. 364 ABSTRACTS OF TITLE. [§ 336 as an incident and passes with it, whether the land be conveyed for a term of years, for life, or in fee.^^ Being incident to the land, it can not be separated from or transferred independent of the land to which it inheres.^* Where an easement is created by a separate instrument, as a grant of a right of way, the essential terms should be fully stated in the abstract and, for this purpose, the better way is to employ the exact language of the deed. §337. Party Wall Agreements. In populous localities party wall agreements are of frequent occurrence, and, though not tech- nically conveyances of land, their legal effect is to give to each of the parties an easement on the other's land which becomes appur- tenant to their several estates and passes to their respective as- signees by any mode of conveyance that may, be effectual to trans- fer the land itself. While the authorities are not altogether har- monious with respect to the legal effect of covenants and agree- ments providing for the construction of party walls between ad- jacent proprietors, the decided weight of authority fully estab- lishes the propositions above stated, and an agreement under the hands and seals of the parties, containing mutual covenants and stipulations made binding on their respective heirs and assigns, will, when duly delivered and acted upon, create cross-easements in the respective owners of the adjacent lots with which the cove- nants in the agreement will run, so as to bind all persons succeed- ing to the estates to which such easements are appurtenant.** Pur- chasers from such parties take with constructive, if not actual, notice of the agreement, and are presiimed to have assumed the burdens as well as the benefits which are incident to it.^* "We con- cede," says Mulkey, J., "the general doctrine, that where the rela- tion of landlord and tenant does not exist, only such covenants as are beneficial to the estate will run with the land; but we do not regard the doctrine as applicable to cases where adjacent pro- 21 See "Basements and Servi- 23 Hart v. Lyon, 90 N. Y. 663 tudes, ' ' supra, § 25. Thompson v. Curtis, 28 Iowa, 229 22 Wash. Easements, 10 Kolle v. Standish v. Lawrence, 111 Mass. Ill Knecht, 99 111. 496. "They are in Ferguson v. Worrall, 125 Ky. 618, the nature of covenants running with 101 S. W. 966, 9 L. B. A. (N. S.) the land," says the court in Garrison 1261. V. Eudd, 19 lU. 558, "and like them, 24Eoche t. Ullman, 104 HI. 11; must respect the thing granted or de- Main v. Cumston, 98 Mass. 317; Dor- mised, and must concern the land or sey v. E. E. Co., 58 111. 65; Eindge estate conveyed. They pass by a con- v. Baker, 57 N. Y. 209; Eogers v. veyance of the land, under the term Sinsheimer, 50 N. Y. 646; Hart v. 'appurtenances,' without being ex- Lyon, 90 N. Y. 663; Thompson v. pressly named." Curtis, 28 Iowa, 229. § 338] MISCELLANEOUS EVIDENCE AFFECTING TITLE. 365 prietors have so contracted as to create mutual easements upon each other 's estates, and entered into covenants with respect to the same. The new relation thus created being of an intimate charac- ter, involving reciprocal duties with respect to each other's estates,' may be regarded as an equivalent for the absence of tenure, so as to give effect to all covenants without regard to whether they are beneficial or onerous. ' ' ^* The abstract should disclose all the ma- terial facts. An example is appended : Hiram Thompson with Jared B. Lake. Party Wall Agreement. Dated, etc. ****** Recites, that first party is the owner of the following described land [describing same] and that second party is the owner of certain land adjoining same described as [describing same] and that said first party proposes to erect on Ms said land a brick building, and is desirous of having the wall between the two above described lots built one-half on each of sadd tots for their mutual benefit, and that second party has as- sented to same, on condition that he shall have the right of using the said wall as hereinafter expressed. And said parties covenant and agree to and with each other as follows: Said second party agrees that if first party shall build at any time a partition wall, he may erect and maintain one-half of same On his, second party's land [state conditions if any] and may enter on same with workmen and materials; and. further agrees that whenever he shall make u^e of same, he, or his heirs and assigns, will pay to said first party one-half of the whole cost of said parti- tion wall. Said first party agrees that second party, his heirs and assigns, may use said partition wall for the benefit of any building he may hereafter erect or place on his said land, provided he does not cut into said wall beyond his otvn half thereof, and pays the price stipulated above. Signed by both parties, and acknowledged by them August 1, • 1879. § 338, Letters. For a large variety of matters relating to in- 'terests in land, and sales and conveyances of such interests, which by law are not required to be under seal or attested by any solem- nity, epistolary correspondence, notes and memoranda, are com- as Roche V. Ullman, 104 lU. 11. 366 ABSTRACTS OF TITLE. [§ 338 petent evidence. This is particularly the case in regard to trusts, agreements and conditions of sale, and sometimes in supplying missing information relative to descents, etc. Hence, it is not un- common to find letters of record relating to or concerning inter- ests in land. A contract for the sale of land made by letter cor- respondence between the parties is valid and will be enforced, if the consideration to be paid, and the time of payment, and descrip- tion of the property appear sufficiently certain to enable a court to make a decree.^^ Where a person acquires title to land in trust for another, and writes him a letter showing clearly that he holds the same in trust, this will be sufficient to manifest the trust as re- quired by the statute of frauds.^'' The abstract of a letter consists of little else than its recitals. The following is a suggestion : Thomas Jones ] Letter. to I Dated, etc. William Smith. J # » « • States, that the writer is the person named as grantor in a deed of conveyance of [here set out descriptions of land and deed as found in the letter]. That he never resided in the State of Illinois, and that he is not the person named Thomas Jones against whom a judgment for $5,000.00 was recovered in the Circuit Court of Cook County, III., at the suit of Henry Jackson. § 339. Affidavits. In abstracting the proceedings of courts, in matters relating to title, affidavits will occasionally be met with, but as a rule they are of such a nature that their contents are immaterial to the examination, and they may be disposed of in a single line and frequently passed without notice. There is, how- ever, another class of affidavits, resorted to by conveyancers under a choice of difficulties, which frequently figure on the records and in the abstract. These are the ex parte sworn statements of indi- viduals respecting some question raised by the examination, usually relating to deaths, marriages, births, etc., concerning which no other or better evidence can be found. Family records are not uni- versal, nor even where, as is the custom of many of the States, a record of births, deaths and marriages is kept by proper officers, can the requisite information be always obtained. When such is the case resort must be had to the next best and most available tes- timony, which is usually supplied by the affidavit of some person 26 NeufviUe v. Stewart, 1 HiU, 166 ; 27 Moore v. Pickett, 62 lU. 158. Firth V. Lawrence, 1 Paige, 434. § 339] MISCELLANEOUS EVIDENCE AFFECTING TITLE. 367 setting forth his knowledge of the matters under inquiry. Such an instrument, it is true, possesses no legal validity, and not being made under the sanction of a court, or in any legal proceeding, is not strictly evidence for any purpose,^^ yet Jbeing usually all that can be adduced, it has been, as it were, by common consent of the profession, adopted as evidence in the examination of titles and the testimony taken as corroborative of general reputation, con- current possession, etc. Such affidavits, though possessing no legal efficacy, should yet be attended with the same solemnities and formalities that are required in affidavits for use in court. Ordinarily where an affidavit is required, and the statute does not designate the particular officer before whom the act may be performed, it may be made before any officer having general au- thority under the statute to administer and certify oaths.*^ No legal rules can apply to affidavits of this nature, except inferen- tially, but, so far as the same may apply, they should be construed by the same standard as affida,vits in legal proceedings."* The eon- tents of an affidavit rnay be shown in this manner : Affidavit iy William 0. Jones. Subscribed and sworn to Aug. 4, 1883. Recorded Aug. 8, 1883. Book 119, page 220. Venue, Cook County, Ills. Recites that, affiant was well acquainted with Robert Simpson, the identical person named as grantor in a deed from Robert Simpson to Walter Scott, dated June 1, 1S79, and recorded June 2, 1879, in Book 52, page 521 of the records of Cook County, Ills., as document 2,110, and that at the date of said deed said Robert Simpson, to the knowledge of affiant, was an unmarried man. Jurat by "William Black, Notary Public." No Notarial seal of record. No other designation of officer. In the foregoing example it will be perceived, that affiant states that an individual named was "an unmarried man." This is a common, but very unsatisfactory manner, of stating a fact of domestic condition. In many states it raises an inquiry as to whether he was a divorcee, with possible dower rights in his divorced spouse. "Whenever an affidavit of this kind is shown in 28 Quinn v. Rawson, 5 111. App. 130. a party before some person who has 29 Dunn v. Ketchum, 38 Cal. 93; authority under the law to adminis- Wood V. Bank, 9 Cow. 194. ter oaths, and need not be in any 30 An afSdavit is simply a deelara- particular form: Harris v. Lester, 80 tion on oath, in writing, sworn to by 111. 307. 368 ABSTRACTS OF TITLE. [§ 340 an abstract counsel should make a requisition for further and more definite information. § 340. Continued — General Requisites — Sufficiency. It is usual, though not necessary, for the affiant to subscribe the affidavit, but, in the absence of positive requirements, an affidavit which ap- pears by jurat and signature of an officer thereto to have been duly sworn to, is sufiicient.'^ On the other hand, if the officer fails to sign the jurat the affidavit is invalid.** An affidavit relied upon as evidence of facts .must allege the facts positively. Aver- ring them to exist as "affiant believes" proves nothing.*' The venue is generally regarded as a material fact in all affidavits, yet courts have exhibited great leniency in this particular and it has been held, that notwithstanding the instrument is without venue yet if it is subscribed by an officer duly empowered to administer and certify oaths, it will be presumed that the oath was taken only in the county where the officer was authorized to act.'* § 341. Unrecorded Evidence. A loose and dangerous habit pre- vails with many examiners, of incorporating in their examina- tions evidences of facts not disclosed by the records. This is often the case with respect to affidavits, releases, etc., the exam- iner usually putting such unrecorded matter in the shape of a note, and stating: "Mr. Blank has this day exhibited 'to us an affidavit by Wm. Parsons^ of Providence, E. I., wherein he states that John Jones was a bachelor and that he died at Providence, R. I., unmarried," etc. But this is the mildest form, for, in an abstract now before the writer, made by a responsible firm, is the full abstract of an instrument inserted at the request of their client, and which they state in a foot-note, is "not recorded in Blank County, Ills." Under no consideration should this ever be done except in the solitary case of titles emanating from the government. Where the examiner possesses reliable data, procured from the only authentic sources, the general land offices of the government, statutes, etc., this is not only permissible, but should be done as a matter of course. In all other cases, if the client deems his evidence of sufficient importance to be inserted in the abstract, it should first be filed for record in the offices of regis- tration where it will be properly covered by the examiner's cer- tificate of search. SI Turpin v. Road Co., 48 Ind. 45 ; Kan. 42 ; Murphy v. McGrath, 79 Cappock V. Smith, 54 Miss. 640. 111. 594. 32 Morris V. State, 2 Tex. App. 502. 34Hertig v. People, 159 111. 237. 33 Thomson v. Higginbotham, 18 CHAPTER XXII. MORTGAGES. § 342. Nature of mortgages. § 343. Different kinds of mort- gages. § 344. The equity of redemption. § 345. Rights of mortgagor. § 346. Mortgages as affected by es- toppel. § 347. Merger. § 348. Equitable mortgages. § 349. Vendor's liens. § 350. Mortgages proper. §^351. Statutory forms. 1 352. Uncertainty or error of de- scription. § 353. Covenants in mortgages. S 354. Effect of special covenants. § 355. Special stipulations and conditions. § 356. Effect of informality. S 357. Purchase money mortgages. I 358. Mortgage of the homestead. §359. §360. §361. §362. §363. §364. §365. § 366. §367. §368. §369. § 370. Release by trustees. § 371. Marginal discharge. § 372. Foreclosure. § 373. Proof df title under fore- closure. Mortgage of after-acquired property. Record of mortgages. Notice imputed from posses- sion. Re-records. Trust deeds. Power of sale. Assignment. Operation and effect of as- signments. Formal requisites of assign- ments. Release and satisfaction. Form and requisites of re- § 342. Nature of Mortgages. A mortgage, as defined by Chan- cellor Kent, is a conveyance of an estate by way of pledge for the security of a debt, to become void on the payment of it.^ The term "mortgage" has a technical signification in law, and when used in legal proceedings as descriptive of a written instrument, must be taken and construed according to its technical legal im- port. An equity of redemption is an essential ingredient and is always implied, even though no defeasance is expressed in the in- strument itself.* 14 Kent Com. 136; Marvin v. Tits- worth, 10 Wis. 320; Cooper v. Whit- ney, 3 Hill, 95. Any instrument of conveyance that on its face purports to be given to secure a payment, is merely a mortgage: Crowles v, Marble, 37 Mich. 158. 2 Walton V. Cody, 1 Wis. 420; Peugh V. Davis, 96 TJ. S. 332; Wing V, Cooper, 37 Vt. 169; Bearss v. Ford, 108 111. 16. " Once a mortgage, always a mortgage," is a universal rule in equity, and no agreement in a mortgage to change it into an abso- lute conveyance upon any condition or event whatever, will be allowed to prevail: dark v. Henry, 2 Cow. 324. 369 Warvelle Abstracts— 24 370 MORTGAGES. [§ 342 A mortgage, in form, purports to convey a present legal estate to the mortgagee, liable to be defeated only by performance of stipulated conditions, and so it was long held that the legal effect of the instrument was to vest title in the mortgagee, subject only to the expressed condition or proviso,^ and the mortgagor's right to regain his estate, after condition broken, which was by appli- cation to a court of chancery, was called "the equity of redemp- tion." The modern doctrine is, however, that a mortgage is but a lien on land, by way of security for the debt, the legal title remaining in the mortgagor, subject only to the lien of the mort- gage, and that the "equity of redemption" is a legal right.* The right of a mortgagee to hold the mortgaged premises as security for his debt is not an estate in land and passes only by an assign- ment of the debt.^ § 343. Different Kinds of Mortgages. Conveyances for the se- curity of a debt or the protection of creditors, may be divided into three classes. The first includes mortgages properly so called, being conveyances from debtor to creditor, expressed to be by way of a pledge or securitj' for the payment of an indebtedness, or for the indemnificaiton of the grantee against a particular loss, and containing a clause of defeasance upon the performance of the stipulated conditions. To this division also belongs that class of mortgage securities technica,lly known as "Trust Deeds," wherein the debts are specified and the creditors named or de- scribed, but because of their large niimber, or to allow greater freedom in the transfer of the evidences of the indebtedness, or from other circumstances making a conveyance directly to them less convenient, the deed is made to a mortgagee who combines 3 Croft V. Bunster, 9 Wis. 503 ; 5 Wend. 602. This was originally the Drayton v. Marshall, 1 Eice's Eq. equitable doctrine, established to pre- (S. C.) 373; Stewart v. Bartow, 7 vent the hardships springing by the Bush (Ky.), 368. This doctrine still rules of law from a failure in the prevails in a few States, and in a strict performance of the conditions modified form in others; as, after attached to the conveyance, and to condition broken or default, the legal give effect to the just intent of the title is held to pass to the mortgagee: parties in contracts of this deserip- Johnson v. Houston, 47 Mo. 227; Ful- tion, but has gradually been adopted ler V. Eddy, 49 Vt. 11. by the courts of law. 4Vason V. Ball, 56 Ga. 268; Wing 6 Mack v. Wetzlar, 39 Cal. 247. V. Cooper, 37 Vt. 169; Fletcher v., This would seem to be generally true Holmes, 32 Ind. 497; Carpenter v. even in those States which regard Bowen, 42 Miss. 28; Woods v. Hilde- a mortgage as a substantive form of brand, 46 Mo. 284; Aster v. Hoyt, conveyance. § 344] MORTGAGES. 371 the office of trustee, the ci-editors standing in the position of cestuis que trust.^ The second division consists of conveyances which are absolute in form, but being intended as security for debt only, courts of equity will give effect to the intention of the parties whatever may be the form of the conveyance, and treat the transaction as a mortgage, except as against he rights of iona fide purchasers or other intervening equities.'' These are known as "equitable mort- gages," and being usually dependent on undisclosed intention, are to be treated and considered in the abstract only according to their manifest legal import. The third division contemplates all deeds of trust or assign- ments for the payment of creditors generally,* the mortgagee in such case representing the rights of the mortgagor only.' Mort- gages may assume a variety of shapes and their identity become almost concealed, but the fact of security is always sufficient to furnish an indication of their true character.^" § 344. The Equity of Redemption. The estate remaining in the mortgagor is popularly, but erroneously, called an "equity of redemption, ' ' retaining the' name it had when the legal . estate was vested in the mortgagee, and the right to redeem existed only in equity. Although a misnomer, it does not mislead. The term is convenient and its meaning well understood. The legal estate remains in the mortgagor and is subject to dower and curtesy; the lien of judgments ; may be sold on execution ; and may be the subject of mortgage and sale, the same as any other estate in lands, whUe the mortgagee has but a lien upon the land as security for his debt, and the same is not liable to his debts, nor subject to any of the incidents of an estate in lands.^^ The mortgagor retains 6 Hurley v. Estes, 6 Neb. 386; Tur- has been held to be a mortgage: Eey- ner v. Watkins, 31 Ark. 429. A trust nolds v. Soott, Brayt. (Vt.) 75. So deed executed to secure a debt does of a deed with a bond for reoonvey- not vest in the trustee the legal title anee: Wing v. Cooper, 37 Vt. 199; to the laud, which can only be taken but otherwise upon facts stated: Eich away from the grantor by foreclosure v. Doane, 35 Vt. 125. So also of a or other legal process in substantial deed with a stipulation that title shall accord with the deed: Ingle v. Cul- not vest until the purchase money is bertson, 43 Iowa, 265. paid: Pugh v. Holt, 27 Miss. 461. 7 Sweet V. Mitchell, 15 Wis. 641 ; And generally any conveyance ex- Trench V. Burns, 35 Conn. 359; Shays pressed to be to secure a payment: V. Norton, 48 111. 100. Cowles v. Marble, 37 Mich. 158; 8 Bank v. Lanahan, 45 Md. 396. Bearss v. Ford, 108 111. 16; Parks 9 Spackman v. Ott, 65 Pa. St. 131. v. Hall, 2 Pick. (Mass.) 211. 10 A penal bond to reconvey lands il Odell v. Montross, 68 N. Y. 499; 372 ABSTRACTS OF TITLE. [§ 344 and is possessed of an estate in the land in virtue of his former and original right, and there is no change of ownership. So far as the entire estate is concerned, there is but one title and this is shared between the mortgagor and mortgagee, the one being the general owner and the other having a lien which, upon a fore- closure of the right to redeem, may ripen into an absolute title, their respective parts, when united, constituting one title.^^ The possession of the mortgaged premises in no way affects the right of the one to redeem or the other to foreclosure.^' A party taking a mortgage on land pending a bill to foreclose a prior mortgage or lien, will be bound by the decree and sale made in the pending suit the same as if made a party to the bill to foreclose, and will be bound to redeem from such sale within the period allowed by law. If he fails to do so his equity of re- demption will be barred,!* ^nd his rights under his mortgage will be extinguished and lost. §345. Rights of Mortgagor. The mortgagor, possessing the legal as well as the equitable title, may perform any valid act relative to the property, and make any contract with reference to the title, subject to the lien of the mortgage, but he can, it seems, do no act which shall be prejudicial to his mortgagee's interests or essentially change the legal character of the land. Hence, no dedication to public use of portions of a parcel of land, made by the general owner after giving a mortgage upon it, can affect the lien of the mortgage, and a purchaser at a sale on foreclosure will take title free of the dedication." § 346, Mortgages as Affected by Estoppel. It is a well settled principle of law, that if one who has no title to land nevertheless 2 Wash. Eeal Prop. 152; Gorham v. session of the laud and damages for Arnold, 22 Mich. 247; White v. Rit- use and occupation after notice to tenmeyer, 30 Iowa, 268. This is the quit, and if no notice, then after the general doctrine, yet in some States service of the -writ, and this either it is still held that, after the expira- against the mortgagor or his assigu- tion of the law day, the mortgagor ee: Mason v. Gray, 36 Vt. 311; Col- or one occupying his position, is con- lame v. Langdon, 29 Vt. 32; Welsh v. sidered as tenant at sufferance of the Phillips, 54 Ala. 39. mortgagee, and liable to be evicted 12 Odell v. Moutross, 68 N. Y. 499. without notice to quit. The mortga- IS Parsons v. Noggle, 23 Minn. 328. gee, in such case, has a right of entry 14 Pratt v. Pratt, 96 111. 184. which he may peaceably assert with 16 Hague v. West Hoboken, 23 N. out notice and without action; or he J. Eq. 354; Walker v. Summers, 9 may, with or without notice to quit, W. Va. 533. bring ejectment, and may recover pos- § 347] MORTGAGES. 373 makes a deed of conveyance, with warranty, and afterward himself purchases and receives the title, the same will vest immediately in his grantee, who will hold the land in virtue of his deed with war- ranty, as against such grantor, by estoppel. In such case the es- toppel is held to bind the land, and create an interest in it. The grantor, being at the same time the wararntor of the title which he has assumed the right to convey, will not be heard to set up a title in himself against his own prior grant, nor to say that he had not the title at the date of the conveyance, or th^t it did not pass to his grantee in virtue of his deed.^^ The doctrine is equally well settled that the estoppel binds not only the parties, but all privies, whether of blood, law, or estate ; ^^ and in such case, the title is treated as having been previously vested in the grantor, and as having passed immediately upon the execution of his deed, by way of estoppel. So where a party makes a mortgage with express or implied warranty of title, he thereby becomes estopped from disputing that, at the date of the mortgage, he had the title and conveyed it ; and this estoppel applies equally to all persons to whom such party may make subsequent convey- ances, by deed, after he has obtained a title. Such subsequent grantees are estopped from denying that the original grantor had title to the land at the date of the mortgage, and he must, there- fore, for every purpose as against his grantees, be treated as hav- ing had the title at that date.^* Nor does this doctrine at all mil- itate against the rule, that the record of a conveyance made by one having no title is a nullity, and constructive notice to no one. When a mortgage is in the statutory form it is equivalent to one containing all the usual covenants of title, and subsequently acquired titles inure to the benefit of the mortgagee.^' §347, Merger. One of the most perplexing incidents of title that can come to the notice of the examiner in connection with mortgages, is that which forms the caption to this section, and as it is impossible, in the brief limits of this work, to enter into any extended discussion of the subject, only passing reference can be made to it. The doctrine, as formulated by the earlier decisions, is that whenever a greater and a less estate unite in the same per- is Teft V. Munson, 57 N. Y. 97 Work V. WeUend, 13 N. H. 389 Jackson v. Bull, 1 Johns. Cas. 81 ISTeft V. Munson, 57 N. Y. 97; White y. Patten, 24 Pick. 324; Elder V. Derby, 98 111. 228; R. & M. R. B. White V. Patten, 24 Pick. 324; Pike Co. v. Trust Co., 49 111. 331. T. Galvin, 29 Me. 183. 19 Elder v. Derby, 98 111. 228. 17 Tef t V. Munson, 57 N. Y. 97. 374 ABSTRACTS OP TITLE. [§ 347 son, without any intermediate estate, the lesser is merged,'^'* and where the legal and equitable estates meet and unite in the same person without an intervening interest outstanding in a third per- son, the equitable is merged in the legal estate, the latter alone sub- sisting. Thus, a conveyance by the mortgagor to the mortgagee extinguishes the mortgage.^^ Later decisions have greatly modified this rule and it is now held, that where two estates meet as above described, a merger does not necessarily follow, but will depend upon the intent and inter- est of the parties, and where it becomes necessary to advance the ends of justice, the two estates will be kept separate; thus, a deed from a mortgagor to a mortgagee, intended as additional security only, and not as a satisfaction of the mortgage, will not merge the mortgage in the greater estate so as to give priority to another mortgage which is a second lien.^^ So, also, in the absence of a special agreement to that effect, the taking of a new mortgage, from the same party and on the same property, will not merge or extinguish a prior one.^* The rule, as first stated, though inflexible at law, is in equity controlled by the express or implied intention of the party in whom the interests unite, and the mortgage interest will in equity be held to have merged the fee, or otherwise, accord- ing to the actual or presumed intention of the mortgagee.^* With respect to merger no general rule can be laid down, for the question will depend in each ease upon the interests and intent of the parties, and the demands of justice and equity.*^ The most rigid investigation must be made by counsel wherever an apparent merger occurs in the title, as the record does not impart notice of merger, or of any other fact which depends alone on the intention of the parties, or other extrinsic evidence, and if any one takes a conveyance upon the assumption that a former mortgage to his 20 Jackson v. Eoberts, 1 Wend. 478 ; jeet to the mortgage, and a third James v. Morey, 2 Cow. 246. party, having purchased the mort- 21 Jackson v. Devitt, 6 Cow. 310. gage, afterward, through mesne eon- 22 Huebsch v. Schnell, 81 111. 281. veyauces, obtains title to the land, he 23 Christian v. Newberry, 61 Mo. thereby becomes vested with the es- 446. tates of both mortgagor and mort- 24 Aiken v. R. R. Co., 37 Wis. 469; gagee; the owner of the mortgfige Morgan v. Hammet, 34 Wis. 512; having acquired the primary fund for Powell V. Smith, 30 Mich. 451; its payment, which is of value equal Waterloo Bank v. Elmore, 52 Iowa, to the mortgage, he thereby occupies 541; Tower v. Divine, 37 Mich. 443. the position of one who has effected 25 Franklyn v. Hayward, 61 How. a strict foreclosure and the mortgage Pr. (N. Y.) 43. Where a mortgagor debt must be regarded as paid: Lilly sells the mortgaged premises, sub- v. Palmer, 51 lU. 331. § 348] ■ MORTGAGES. 375 grantor has been merged in a subsequent conveyance of the fee, he does so at his perU.^^ § 348. Equitable Mortgages. It is an established doctrine that a court of equity will treat a deed absolute in form, as a mortgage when it is executed as security for a loan of money, for the court looks beyond the terms of the instrument to the real transaction, and when that is shown to be one of security, and not of sale, it will give effect to the actual contract of the parties.^'' Such a deed car- ries with it all the incidents of a mortgage, and the rights and obligations of the parties to the instrument are the same as if it had been subject to a defeasance expressed in the body thereof, or executed simultaneously with it.^* It is a further established doctrine that an equity of redemption is inseparably connected with a mortgage; that is to say, so long as the instrument is one of security the borrower has in a court of equity a right to redeem the property upon payment of the loan, and this right can not be waived or abandoned by any stipulation of the parties made at the time, even if embodied in the mortgage. This is a doctrine from which a court of equity never deviates. "Its maintenance is deemed essential to the protection of the debtor, who, under press- ing necessities, will often submit to ruinous conditions, expecting or hoping to be able to repay the loan at its maturity and thus prevent the conditions from being enforced and the property sac- rificed, "^s In view of these statements how is counsel to determine, on perusal of the abstract, what are and what are not mortgages, if all the instruments appear absolute on their face? There is but one answer to the question. He can not. The legal import of an absolute conveyance is that it carries the fee,'" and any contradic- tion of its apparent effect must arise from extrinsic evidence. This latter counsel can not know, nor is he expected to have such 26 Or. & Wash. Trust Co. v. Shaw, the reason, that sueh evidence is re- 5 Sawyer (C. Ct.), 336. ceived not to contradict an instrument 27Peugh V. Davis, 96 IT. S. 332; of writing, but to prove an equity Klein v. McNamara, 54 Miss. 90; superior to it: Saunders v. Stewart, Carr v. Carr, 52 N. Y. 251 ; Shays v. 7 Nev. 200 ; Wilcox v. Bates, 26 Wis. Norton, 48 111. 100; Turner v. Kerr, 465. 44 Mo. 429; Moore v. Wade, 8 Kan. 28 Odell v. Montrose, 68 N. Y. 499. 380; Kerr ». Agard, 24 Wis. 378. 29 Field, J., in Peugh v. Davis, 96 The rule that parol proof is admis- U. S. 332; Clark v. Henry, 2 Cow. sible to show that a conveyance of 324; and see Walton v. Cody, 1 Wis. real estate, absolute upon its face, was 420 ; Bearss v. Ford, 108 111. 16. intended to be a mortgage or security 30 A conveyance of the legal title merely, is recognized and applied for to secure the payment of money dif- 376 ABSTEACTS OF TITLE. [§ 348 knowledge. The record rarely furnishes any clew to the true character of this class of conveyances, the facts governing their equitable nature resting entirely in parol, hence questions of this kind can seldom arise in the preparation of abstracts and only in- cidentally in passing upon titles. The examiner can judge of the legal sufficiency and effect of instruments only as they are pre- sented on the reeord.^^ Subsequent purchasers for value, without notice, will be protected by the record, and where one in posses- sion of land, under a conveyance absolute on its face, sells the same, his grantee, without notice that his vendor's deed was but a mortgage, will hold the property free from any equity of redemp- tion ; '* and even though a court of equity afterward decides that the conveyance was in fact a mortgage, and that the mortgagor is entitled to his equity of redemption, yet the title to the property will not be disturbed, but judgment in personam wiU be given against the niortgagee for the amount equitably due by him to the mortgagor.** When a lien on land is expressly reserved in the deed convey- ing such land, which is duly recorded, a clear equitable mortgage is created of which every one is bound to take notice ; '* but some- thing more than a mere reservation of a right to pui-ehase, or cove- nant to reconvey, must be shown in order to convert a deed absolute fers from a statutory mortgage in 32 Jenkins v. Eosenburg, 105 III. that the legal title passes to the gran- 157. tee, the grantor reserving the right SSBaugher v. Merryraan, 32 Md. in equity to redeem. This right, how- 186; Jackson v. MeCSiesney, 7 Cow. ever, may become barred by the stat- 360; Grimstone v. Carter, 3 Paige, ute of limitations, and when so barred 421. that an action for affirmative relief 84 Davis v. HamUton, 50 Miss, can not be maintained thereon, it can 213; Armentrout's Exr. v. Gibbons, not be interposed as a defense to an 30 Gratt. (Va.) 652; Dingley v. action by the grantee to recover pos- Bank, 57 Gal. 467; as where a deed session of the property: Eiehards s. contains a stipulation that no title Crawford, 50 Iowa, 494. See, Edwards shall vest until the purchase money V. Trumbull. 50 Pa. St. 509; Shaw v. has been paid (Pugh v. Holt, 27 Wiltshire, 65 Me. 485. This result Miss. 461; Austin v. Downer, 25 Vt. always follows if the instrument be 558, or that the deed shall be ab- recorded in the record of deeds and eolute on the payment of certain not of mortgages: Brown v. Dean, 3 notes, but in default thereof to be Wend. (N. Y.) 208. void (Bank v. Drummond, 5 Mass. Slit is the settled policy of the 321). So if it be for the perform- law to give security to, and confi- ance of any other duty, such as main- dence in, titles to the landed estates tenance of the grantor during life, of the country which appear of record etc. ; Lanf air v. Lanf air, 18 Pick, to be good: McVey v. MoQuality, 97 (Mass.) 299. 111. 93. § 350] MORTGAGES. 377 on its face into a mortgage.^^ There is no positive rule that a cove- nant to feeonvey shall be regarded, either in law or equity, as a defeasance. The owner of lands may be willing to sell at the price agreed upon, and the purchaser may also be willing to give the vendor the right to repurchase, upon specified terms. Such a con- tract is not opposed to public policy, nor is it in any sense illegal.'^ Equitable mortgages arising from the deposit of title deeds are not generally recognized,^''' and the common-law doctrine respecting pledges of this kind can not be said to prevail in this country. § 349. 'Vendor's Liens. It hg,s long been settled that the vendor of real property, notwithstanding he has conveyed the legal title, has a lien on such property for the unpaid purchase money while it remains in the hands of the vendee, or volunteers or purchasers with notice. This, however, applies mainly to implied liens, for where there is a district reservation of lien upon the face of the deed, it has been held to constitute a specific charge upon the land as valid and effectual as a deed of trust or mortgage,^* and, fur- ther, that the lien being set forth in the very first link of the vendee's claim of title, purchasers from him have just as mucli notice of it as they would have had of a lien on the land by mort- gage or trust deed.^9 ' ' Indeed, ' ' says Staples, J., ' ' it may be a ques- tion whether a reserved lien is not of a higher nature than a mere mortgage security. In many cases the mortgage is treated as a mere incident to the debt, whereas the lien reserved is an express charge inherent in its nature upon the land which, in equity, is the natural primary fund for its payment. ' ' ** §350. Mortgages Proper. A mortgage may be made by an absolute conveyance with a defeasance back, but this form has never been in general use in the United States, and is now obso- lete. The class of conveyances to which this name is technically applied consists of an instrument in form purporting to convey a present estate to the mortgagee, liable to be defeated by the per- 36 But see Peterson v. Clark, 15 38 Armentrout 's Ex 'rs v. Gibbons, Johns. (N. Y.) 205. 30 Gratt. (Va. 632) ; Carpenter v. SBHanford v. Blessing, 80 111. 188; Mitchell, 54 111. 126. Henly V. Hotaling, 41 Oal. 22; Glover 39Patton v. Hoge, 22 Gratt. V. Payn, 19 "Wend. 518. (Va.) 443; Hines v. Perkins, 2 Heisk. STProbasco v. Johnson, 2 Disney (Tenn.) 395. (Ohio), 96. The registry of a mort- 40 Coles v. Withers, 33 Gratt. (Va.) gage is a substitute for the deposit 186. of the title deeds: Johnson v. Stagg, 2 Johns. 510. 378 ABSTRACTS OF TITLE. [§ 350 formance of stipulated conditions, and is always between the prin- cipals to the transaction. Where the mortgage remains a valid and subsisting lien, it is advisable to narrate its essential terms quite fully, and when followed by foreclosure, if other than by suit in chancery, to relate with minuteness of detail the power of sale and other provisions, by authority of which the foreclosure was made. Where the mortgage has been fully paid, satisfied and dis- charged, there exists no good reason why it should appear at all, any more than a judgment which has been satisfied; yet it is the universal custom of abstract makers to show, in the regular course of title, both the mortgage and its subsequent assignments, if any, and the discharge. Questions may sometimes arise that render an abstract of satisfied liens convenient or material, yet, as a rule, only the briefest outline should be presented, sufficient, in fact, to show the transaction and no more, that confusion may not result from the mingling of satisfied and unsatisfied liens. The following example shows all that is necessary : James Bryant 1 Mortgage, to D'ated, etc. Tho)iias Vaughaii. r * * * # To secure the payment of $5,000.00. Conveys the East h or fact nee- Mills V. Hoag, 7 Paige, 18; Kane v. essary to be made known to the Whittick, 8 Wend. 224. court is either not stated in the 67 To avoid the confusion incident pleadings, or is so imperfectly ascer- to the use of the^word judgment, in' tained by them that a court is unable two senses, one as interlocutory, and to determine finally between the par- the other as final, the codes of many ties; and therefore, a reference to, or of the States designate the former as an inquiry before a master, or a trial orders, and do not recognize such a of facts before a jury becomes necea- thing as an interlocutory judgment. sary, the decree entered for that pur- 68 Mills V. Hoag, 7 Paige, 18 ; pose is an interlocutory decree. The Butler V. Lee, 33 How. 251. An in- court, in the meantime, suspends its terlocutory decree is properly a de- final decree, until by the master's re- oree pronounced for the purpose of port, or verdict of the jury, it is ascertaining matter of law or fact enabled to decide finally: 1 Barb. Ck. preparatory to a final decree. There- Prac. * 326; Seaton on Decrees, 2; 1 fore, when it happens that some Harr. Ch. Prac. 420. §462] JUDGMENTS AND DECREES. 479 § 461. Operation and Effect of Decrees. A formal decree oper- ates differently from a judgment, but its effect is the same, and the same general rules apply with equal force to either. As res adjudi- cata it is conclusive upon the question actually presented or directly involved,^' though not upon collateral issues,'''' and embraces not only the questions actually contested and determined, but also all those which might have been if they had been seasonably pre- sented.''^ It is blading on parties and privies and imports such abso- lute verity that it can not be attacked collaterally on account of mere irregularities in the proceedings by one not a party in in- terest,''^ nor can defects therein be set up by a stranger to the record, for the purpose of defeating a claim of right to land based thereon.''* It is evidence of itself to sustain a conveyance made under it,''* but where it does not in terms divest the title of the de- fendant, but merely directs the execution of a deed, until such execution, the legal title remains in the defendant.''* A reversal of the decree does not divest the title of a purchaser thereunder in good faith,''* who is a stranger to the record, but all rights ac- quired by parties to the suit as purchasers of the land under the decree, fall with the reversal.'''' A decree upon a matter not in- volved by the cause, nor in issue by the pleadings, is coram non judice and void,''* and will be treated as a nullity, even in a col- lateral proceediag.''9 § 462. Decrees Rendered on Constructive Notice. The remarks of the last section must be understood to apply more particularly 69 Geary v. . Simmons, 39 Cal. 224; 489; Hungerf ord 's Appeal, 41 Conn. Cannon t. Brame, 45 Ala. 262; I'os- 322; Talbot T. Todd, 5 Dana, 193. ter V. The Richard Busteed, 100 Mass. 73 Myler v. Hughes, 60 Mo. 105. 409; People v. Brisliu, 80 111. 423; TSLathrop v. American Emig. Co., State V. Eamsburg, 43 Md. 325. When 41 Iowa 547; Pettit v. Cooper, 9 Lea a judgment or decree is rendered by (Tenn.), 21. consent, or as the result of a com- 74 Grebbin v. Davis, 2 A. K. Marsh promise, it can not be admitted as (Ky.) 17; Dunklin v. Wilson, 64 Ala. res ad judicata: Wadhams v. Gay, 73 162. 111. 415. And such decree would only 75 Peak v. Ligon, 10 Yerg. (Tenn.) bind the parties consenting, and would 469. not affect the rights of others not 76 Taylor v. Boyd, 3 Hammond made parties to the suit, but who (Ohio), 353; Lambert v. Livingston, should have been: Dibrell v. Carlisle, 131 lU. 161. 51 Miss. 785. 771'ishback v. Weaver, 34 Ark. 70 Land V. Keim, 52 Miss. 341; 569; PoweU v. Rogers, 105 HI. 318v Eastman v. Porter, 14 Wis. 39 ; Eish 78 Meredith v. Little, 6 Lea V. Lightner, 44 Mo. 268. (Tenn.), 517. 7iPetersine v. Thomas, 28 Ohio 79Maunday v. Vail, 34 N. J. L. St. 596; Bates v. Spooner, 45 Ind. 418. 480 ABSTRACTS OF TITLE. [§ 462 to decrees which have been rendered upon a full hearing of the case and with all the parties properly before the court. Where, however, there has been no personal service upon the defendants, and such persons are before the court only constructively by a sub- stituted service, somewhat different rules prevail. The law will not hastily preclude a person's rights when he has had no oppor- tunity to be heard ; hence, a decree entered in such a case does not become final and conclusive until some time has elapsed during which the defendants may come forward and urge any matter they may have in extenuation or defense. The time allowed for this purpose as well as the method by which such defendants are let in, are matters of local statutory regulation, but the principle is of general observance, that all persons acquiring rights under such decree, before it becomes final and conclusive, are equally affected with notice of its conditional character; and all interests so ac- quired, whether for a valuable consideration or otherwise, are entirely dependent upon the confirmation of the decree, which, if vacated, renders all proceedings under it a mere nullity, and of this all persons dealing with the land must take notice.*" In this connection the attention of the examiner is directed to the antecedent proceedings and the character of the process by which the defendant is brought within the jurisdiction of the court. Where a decree is based on a constructive service every^ thing essential to jurisdiction must appear. The defendant must be properly named or identified. In other words, he must have notice, and if the fact of no notice affirmatively appears upon the face of the proceedings the judgment is void and open, to collateral attack. Thus, a notice to Smith, without other description or identification will not suffice to bring John Smith into court, nor will a judgment rendered against him have any binding effect." § 463. Lien of Decrees. Decrees, equally with judgments, create liens upon the lands of the losing party. This follows as an incident where there is a money decree in personam,^^ while, by statute, where a decree is pronounced requiring a party to per- form some act other than the payment of money, it may be made a lien upon the property of such party until he shall perform the 80 Southern Bank v. Humphreys, 47 No personal decree can be rendered 111. 227. in equity against defendants not per- 81 Clark V. HiUis, 134 Ind. 421; sonally before the court; as to such Thompson v. MeCorkle, 136 Ind. 484. defendants the bill must be dismissed 82 Karnes v. Harper, 48 111. 527; without prejudice; Virden v. Needles, Yackle v. Wightman, 103 HI. 169. 98 111. 866. § 464] JUDGMENTS AND DECREES. 481 acts mentioned in the decree.*^ In the first instance the lien has the same force and effect, and is subject to the same limitations and restrictions as judgments at law.** An interesting and by no means unusual question is presented where the decree is entered in an action for divorce and provides for the payment of alimony. Does such a decree, per se, create a lien on the lands of the defendant ? Unfortunately, this question is so affected by local statutes, with their widely varying construc- tions, that no general rule can be formulated. Eecourse, therefore, must necessarily be had to local usages whenever the question may arise. It may be said, however, that the general trend of the decisions is, that a decree may be so drawn as to create a lien on the lands ot a husband,*^ and this will frequently be the case where the alimony is a lump sum.*^ In a few States the statute provides that decrees for alimony shall be liens on the judgment debtor's lands in the same manner as other judgments but usually this is a matter which seems to be left to the discretion of the court granting the decree and in some of the decisions it has been held that a decree is not a lien unless the record affirmatively shows that the court intended it to have that effect.*'' , In all eases of this kind the decree should be carefully examined and its material parts abstracted in such a manner as to fully apprise counsel of its legal effect. § 464. Formal Eequisites of Decrees. Unlike judgments in per- sonam, which are ordinarily shown only by a brief reference, de- crees and judgments in rem, or which affect or implicate title, are copied almost verbatim, or at least set forth with little condensa- tion. The formal parts of decrees are, the caption and title of the cause; the recitals; and the ordering or mandatory clause. A fourth part, called the declaratory clause, is sometimes added.** The strictly formal parts which relate to the caption, etc., may in SSKirby v. Eunals, 140 111. 289. Babowski v. Babowski, 242 111. 524, 84 Karnes v. Harper, 48 111. 527; 90 N. E. 361. Eames v. Germania Tumverein, 74 i 87 Scott v. Seott, 80 Kan. 498, 103 111. 56. ' Pao. 1005, 25 L. B. A. (N. S.) 132. 86 Conrad t. Everieh, 50 Ohio St. 88 When this is used it iminedi- 476, 35 N. B. 58; Gofe V. Gofe, 60 W. ately precedes the ordering part, Va. 9, 53 8. E. 769. and consists of a declaration of the 88 See, Sesterhan v. Sesterhan, ' 60 rights of the parties. It is not nec- lowa 301, 14 N. W. 333; Blanken- essary, however, and its omission will ship V. Blankenship, 19 Kan. 159; not invalidate the decree. Warvelle Abstracts — 31 482 ABSTRACTS OP TITLE. [§464 some eases be abbreviated, particularly when the decree is shown in regular order as a part of the synopsis of the proceedings of the court which pronounced it, but when the abstract is made from a certified copy recorded with the recorder of deeds, it is advisable to show these parts also. The caption shows the court ; term, day, etc., on which the decree was rendered; the name of the presiding judge or chancellor; and the title of the cause. The recitals are now very meager and refer briefly and generally to the hearing, pleadings and proofs, and to the fact of their having been duly considered by the court. Formerly it was customary to set out at great length the pleadings, evidence, etc., but this practice, by reason of its expense and inconvenience, has been discontinued, and the inducement of the recitals reduced to a bare mention,*^ al- though in some States the evidence still is, or may be, preserved in some instances in this manner.*" The recitals being brief, should be shown in fuU.'^ The ordering or mandatory clause is the vital part of the decree, and must always, with the exception of the part referring to the costs, be copied verbatim. This part contains the specific directions of the court with reference to the subject-matter before it, and provides for the final disposition of the rights of the litigants. All decrees must be founded on, and in conformity with, the allegations and proofs; and can not be based upon a fact not put in issue by the pleadings.'* When not supported by the plead- ings they are as fatally defective as though not sustained by the verdict or findings.^' Where a decree directly affects land, as in case of foreclosure or other action in rem, it is of vital importance that the description be accurate and certain. The rules of conveyancing, which permit reference to extrinsic facts to aid the intention of the parties, have no application to descriptions found in judicial decrees, or deeds of conveyance founded upon them, nor can the assistance of equity be 89 Dousman v. Hooe, 3 Wis. 466. reason the recitals should be fully 90Cooley v. Scarlett, 38 111. 316; stated. See Turner v. Jenkins, 79 HI. Walier v. Gary, 53 Dl. 470. 228; Eivard v. Gardner, 39 111. 125; 91 Though formerly a stricter rule Prettyman v. Barnard, 37 111. 105; prevailed, every reasonable pre- Haworth v. Huling, 87 111. 23 ; Belden sumption is now indulged in favor v. Meeker, 2 Lans. (N. Y.) 470. of the jurisdiction of a court of gen- 92 1 Barb. Ch. Prac. * 339 ; Car- eral jurisdiction, and its findings in neal v. Banks, 10 Wheat. 181; Maun- deerees are held to be prima facie day v. Vail, 34 N. J. L. 418. evidence of the existence of jurisdie- 93 Bachman v. Sepulveda, 39 Cal. tional facts, while the recitals fre- 688; Marahman v. Conklin, 21 N. J. quently have the further effect to Eq. 546; Parsley v. Nicholson, 65 N. cure defects of service, etc. For this C. 207. §465] JUDGMENTS AND DECREES. 483 invoked to reform such descriptions.'* Hence, if the decree and re- sulting deed are so defective that it can not be ascertained by in- spection, or from data which they furnish, what property was in fact sold, or, if in order to ascertain the intention of the officer sell- ing it becomes necessary to institute an extraneous inquiry, the proceeding will be void for uncertainty .'^ § 465. Abstract of Decrees. From what has been said it will be perceived that an abstract of a decree, unless it preserves the evi- dence, can consist of little else than a copy of such decree. The recitals may permit of some condensation, and the mandatory parts that refer to the costs are also susceptible of the same treatment. The verbiage of the caption may also be condensed and parts thereof omitted, thus: Alexander Stewart vs. Charles Dalton. Circuit Court Cook County. June Term, 1883. In Chancery. Decree entered June 24, 1883. Chancery record 45, page 410. Recites, that this cause having come on to lie heard upon the pleadings herein and the proofs taken in said cause, and having ieen argued iy counsel, and the court having duly considered the same, and being fully advised in the premises; ®^ Doth order, adjudge and decree, that the said deed of convey- ance from William Jones and wife to the defendant, Charles Dalton, bearing date January 4, 1882, of the lands described as folloivs, to wit: [set out description] and recorded in the recorder's office of Cook County, III., as Doc. 129,242, be, and the same is hereby set aside and declared null and void, as against the complainant, his heirs^and assigns, as a cloud upon the title of the complainant; and that the defendant, Charles Dalton, do deliver up the said deed to be canceled by the clerk of this court.^'' 94 Lewis V. OweA, 64 Ind. 446. if uncontradicted: Belden v. Meeker, 95 Evans v. Ashley, 8 Me. 177; 2 Lans. (N. Y.) 470. Bowen v. Wickersham, 124 Ind. 404. 97 Equity will generally compel an 96 Recitals in a decree of a court instrument to be delivered np for can- of inferior jurisdiction of the facts cellation, where it has been declared necessary to give jurisdiction are inoperative, and may possibly do harm prwia facie evidence of such facts, if allowed to remain in defendant's subject to be contradicted, but suffi- hands: Keemle v. Conrad, 12 Phila. cient per se to uphold the proceeding (Pa.) 524. A decree canceling a deed 484 ABSTKACTS OF TITLE. [§465 Further ordered, that defendant pay costs of this suit, to he taxed, and that execution issue therefor.^^ It will sometimes be desirable to show the findings of the court, if any were made, particularly where there has been no reference to a master or commissioner.*^ "When such is the case they should be inserted before the ordering or mandatbry clause. This will require some slight changes in the phrasing as above set forth. Thus : * * * and the court having duly considered the same, and being fully advised in the premises. Doth find, that [here set out the findings] Wherefore, it is ordered, adjudged and decreed that, etc. § 466. Errors and Defects. Errors and defects in judgments or decrees require, when apparent, appropriate mention. But the defects that are noticeable are mainly confined to matters of prac- tice, form, etc., and vital defects, from their very nature, are fre- quently undiscernible. Thus, a judgment against an individual as a defendant, by a name which is not his in contemplation of law, can not ordinarily be enforced against him,^ and certainly is not constructive notice of a lien upon his land.* It has in some in- stances been held, that a judgment in an action in which the defend- ant is named in all the proceedings therein by a different name from that of a particular existing individual, will be of no avail against the latter, even if entered up against him by his real name, although process was in fact served upon him, when the name of the defendant in such process was not his ; ^ because, unless he actually appeared in the action, no jurisdiction over him was obtained therein by the service of such process.* But the weight of authority would seem to indicate that if the process is served may direct the clerk to enter the fact is not constructive notice that it is a on the margin of the record of siieh lien on land owned by Mary Smith, canceled deed: Jones v. Porter, 59 notwithstanding that she is the wife Miss. 628. of J. B. Smith; Bankers, etc. Co. v. 98 This is equivalent to a money Blair, 99 Va. 606. judgment and creates a statutory lien 3 Bates v. State Bank, 7 Ark. 394. on the defendant's lands. In this case service was returned as 99 See § 513 post, for a precedent had upon Asher B. Bates and judg- where there has been a reference. ment was rendered against Ashley B. IFarnham v. Hildreth, 32 Barb. Bates. 277; Thomas v. Desney, 57 Iowa 58. 4Moulton v. De Maearty, 6 Bob. 2 Thomas v. Desney, 57 Iowa 58; (N. Y.) 470; Ford v. Doyle, 37 Cal. Grundies v. Eeid, 107 lU. 304. Thus, 346. a judgment against Mrs. J. B. Smith, §467] JUDGMENTS AND DECREES. 485 on the party intended to be served, though by a wrong name, and he fails to appear and plead the misnomer in abatement and suffers judgment to be obtained against him, he is concluded, and in all future litigation may be connected with the suit or judgment by proper averments.' In compiling an abstract, however, the two matters just noted , would not be treated alike. In the former case, the name of the judgment debtor not being the same as the party whose title is under consideration, the judgment might with safety and propriety be disregarded ; as where the name of the land owner is "Freeman" Jones, and that of the judgment debtor "Herman" Jones.^ But in the latter, though the judgment debtor was sued by a wrong name, yet inasmuch as judgment was entered against him by his true name, such judgment must substantially appear, together with so much of the proceedings, including the process and return, as will show the repugnancy or invalidity, and the opinion of title should specifically pass upon the facts thus exhibited. § 467. Continued — Middle Names. A more perplexing question arises in case of correct Christian and surnames, but wrong middle names or initials. The authorities are in substantial agreement that the law requires and recognizes but one Christian name, and that the omission or insertion of middle names or initials is im- material,' yet in many instances the middle name is the only clue by which judgment debtors can be identified. In populous locali- ties it is not always expedient to show all the judgments appear- ing against a particular name. Say the person whose title is under consideration is named John, R. Smith, and the record discloses judgments against "John Smith," and John Smith with middle initials other than "R," now what course must be pursued in view of the propositions last presented? To insure absolute cer- 5 See Bloomfield E. K. Co. v. Bur- plusage. In some States, however, gesa, 82 Ind. 83,- National Bank v. the courts seem to have abrogated the Jaggers, 3-1 Md. 38; Walsh v. Kirk- old rule, that the middle letter or Patrick, 30 Cal. 202; Foshier T. Nar- initial is no part of a person's name, ver, 24 Oreg. 441. holding that it is essential to identify 6 Farnham v. Hildreth, 32 Barb. and that if a judgment creditor per- 277; Thomas v. Desney, 57 Iowa 58; mits the omission from his record of Kennedy v. Merriam, 70 HI. 228. the initial which distinguishes his T Thompson v. Lee, 21 111. 242; debtor from all others of the same Bleteh v. Johnson, 40 111. 116; Alii- name he must bear the loss if any son V. Thomas, 72 Cal. 562; Choen ensues. See, Hutchinson's Appeal, 92 V. State, .52 Ind. 347, in this ease it Pa. 186; Crouse v. Murphy, 140 Pa. is said the middle name is mere sur- 335, 21 Atl. 358, 12 L. B. A. 58. 486 ABSTRACTS OF TITLE. [§467 tainty, every judgment that comes within the rule must be shown, and this in many cases would be impracticable, for to exhaust the possibilities as to John Smith might require hundreds of searches. In the absence of positive instructions, therefore, when questions of doubt arise, the examiner usually looks only for judgments against the particular name under consideration, and in his cer- tificate expressly states that no search has been made for the other names.' While this practice is sometimes condemned it is yet in con- sonance with the general tendency of the courts in construing docket entries and enforcing judgments. It is now a common statutory requirement that the judgment docket shall set forth the name at length of each judgment debtor. Hence, if the true name of the judgment debtor is "John R. Smith" but judgment is docketed against him as "John Smith," while the judgment might be effective as between the parties it would be of no effect as against a purchaser.' In the cases which support this doctrine it is held that the middle name or initial is an essential part of the name and that the omission of such middle name or initial, or the sub- stitution of others than the true one, is a misdescription of the person, the tendency of which is to deceive intending purchasers. The object of the statute is that the docket shall, of itself, fur- nish reasonably satisfactory evidence as to whether a judgment exists against the person shown by the records to own the land which prospective purchasers seek to acquire. In order to make the judgment lien effective as constructive notice to subsequent purchasers the true name should be shown and if the index fails to make this disclosure, and the purchaser has no actual knowl- edge of the identity of the judgment debtor, he should take the land freed form the lien.^" A further difficulty is met in the case of first, or Christian names, which, through popular usage, are corrupted or abbreviated. Thus, the search may be for judgments against Francis Brown. No judgments appear against such person but there is a judgment against Prank Brown. Should this be shown ? It would seem that 8 This matter is further considered 10 Grouse v. Murphy, 140 Pa. St. in the chapter devoted to "Opinions 335. The docket entry of a judg- of Title." ment against Edward Davis was 9 Terry v. Sisson, 125 Mass. 560 ; held not to constitute constructive Button V. Simmons, 65 Me. 583 ; notice of a lien on the land of either Hutchinson's Appeal, 92 Pa. St. 186; E. A. Davis or Edward A. Davis. Eidgeway's Appeal, 15 Pa. St. 177; See, Davis v. Steeps, 87 Wis. 472; Johnson v. Hess, 126 Ind. 298, 25 N. and see, Johnson v. Hess, 126 Ind. E. 445, 9 L. E. A. 471. 298. § 468] JUDGMENTS AND DECREES. 487 this is the only safe course to pursue, for, as the court says in one case, "it is a matter of common knowledge that seldom is one bear- ing a Christian name of Francis known by any other name than Frank." In like manner, when looking for liens against Jacob the searcher must know that the world knows no difference between "Jacob" and "Jake," and that a judgment indexed against Jake may be a lien on the property of Jacob. ^^ § 468. Continued — ^Initials — Idem Sonans. The same perplexity arises where only initials are employed, an incorrect yet neverthe- less common practice. A judgment docketed against "A. Jones" has been held sufficient notice of a judgment against "Abel Jones," where the defendant uniformly wrote his name by his initials and there was no other "A. Jones" in the county.^* A judgment docketed against J. W. Humphrey was held to be a lien upon the land of John W. Humprey, and sufficient to put a subsequent purchaser on notice.^* Indeed, the volume of authority now sus- tains the rule that correct initials are sufficient to impart notice and put a reasonable person on inquiry.^* Such being the case, it would seem that where there may be a doubt as to whether a judgment is a lien the only safe course for the examiner is to show the doubtful judgment in his abstract if he desires to relieve himself from liability. Should he choose to resolve the doubt, he does so at his peril.^^ Again, the examiner, and counsel as well, must deal with the dis- cordant doctrine of idem sonans. Thus, a judgment against John "Bobb" was in one instance permitted to operate as a lien on land owned by John "Bubb,"^® and one against Henry "Haekman" was in another ease allowed to participate against the property of Henry ' ' Heckman. " ^'' It is said in support of these precedents 11 Burns v. Eoss, 215 Pa. 293, 64 123. The names "Welch" and Atl. 526, 7 L. R. A. (N. S.) 415. "Welsh" are idem sonans. Donohoe- 12 Jones Estate; 27 Pa. St. 336; KeUy Banking Co. v. South. Pao. Co., Hart V. Lindsey, 17 N. H. 235. 138 Gal. 183 ; so are the names Wat- 13 Pinney v. Russell, 52 Minn. 443, kins and Wadkins, because, it is said, 54 N. W. 484. in casual pronunciation there is 14 "Valentine v. Britton, 127 N. C. scarcely any difference in the sounds. 57, 37 S. E. 74; Grouse v. Murphy, Bennett v. State, 62 Ark. 516. See 140 Pa. 335, 21 Atl. 358, 12 L. E. A. Lyon v. Kain, 36 111. 368, where Ed- 58. monds, Emmens, and Emmons, were IBDood V. Williams, 3 Mo. App. all held to have practically the same 278. sound and hence to be within the rule. 16 Meyer v. Fegaly, 39 Pa. St. 429. On the other hand, it has been held, 17 Bergman's Appeal, 88 Pa. St. that Hyde and Hite, do not come 488 ABStRACTS OP TITLE. [§ 46S that identity of sound is a surer designation of the names of per- sons than identity of orthography, and that in ascertaining identity of sound the prevailing usage in pronunciation in the locality will prevail. It is also contended that persons searching the judgment docket for liens ought to know the different forms in which the same name may be spelled, and to make their searches accordingly ; unless indeed where a spelling is so entirely unusual that persons can not be expected to thuik of it.^* It is, however, the duty of a judgment creditor to see that his judgment is properly entered, and in such a manner as to furnish to the eye of purchasers and subsequent incumbrancers, that record notice which the law contemplates,** therefore, while slight varia- tions not materially changing the sound may be permitted to stand under the rule of idem sonans, total departures in initial letters, misleading the searcher and failing to furnish him with proper clues, can not be allowed. As where the judgment debtor is named "Yoest," but the judgment is docketed "Joest," not^ withstanding that the foreign pronunciation of the name is the same using either initial, yet the eye is misled, and the law does not impose upon any one who searches, the duty of inquiring whether some other letters may not spell the name of the debtor in another language.*" So, too, a material change ia the spelling, although preserving to a large extent the original sound of a name, is fatal to the lien as against one having no notice. Thus, the names "Hesser" and "Hesse" are so dissimilar that one searching for iucumbrances against the former would not be charged with notice of a judgment against the latter, nor put upon inquiry.*^ But while it is undoubtedly true, that the law of notice by record is addressed to the eye and not to the ear, and that record notice is principally a matter of sight and not of sound, yet, it is held, it is above all a matter for the consideration of the mind, and i£ the record of a name spelled in one way should directly sug- gest to the ordinary mind that it is also commonly spelled another way, the searcher should be charged with whatever the record within the rule, State v. Williams, 68 20Heil's Appeal, 40 Pa. St. 453. Ark. 241. And that pufehasers from But see Kirtz v. Behrensmeyer, 125 W. H. i\irman are not charged with m. 141. notice of incumbrances by W. H. Tree- 21 .(Etna Ins. Co. v. Hesser, 77 man, Howe v. Thayer, 49 Iowa 154. Iowa, 381; and see Bates v. Bank, 18 See Meyer v. Fegaly, 39 Pa. St. 7 Ark. 394; Anthony v. Taylor, 68 429. Tex. 403. 19 Hutchinson 's Appeal, 92 Pa. St. 186. § 470] JtlDQMENTS AND DECRKES. 489 may show in some other spelling, particularly under the same initial letter. Hence, a judgment against "Seibert" was held to* be notice to purchasers of property owned by ' ' Sibert. " ^^ It will be seen, therefore, that the subject is one of doubt and uncertainty, and because of this an additional burden of care and diligence is cast upon both examiner and counsel. § 469. Operation and Effect of Probate Decrees. A decree of a probate court acting within the sphere of its jurisdiction, is con- clusive upon all those to whom the right of appeal is given,*' when such right is Tinexercised, and as to all matters which appear from the record to have been adjudicated upon ; ^ and all such de- crees, where the court has jurisdiction of the subject-matter, will be presumed to have been made upon proper notice and formal pro- ceedings, even though such proceedings do not appear of record.** As a general rule, the decree of a probate court need not recite the acts or facts upon which the jurisdiction of the court de- pended.*^ Orders of sale made by probate courts are a class of decrees to which the attention of the examiner is particularly directed. These orders are essential parts of the title and call for severe scrutiny. It has been held that an order of court for the sale of land must in itself be sufQcient without reference to extraneous matters,*'' and where the description is insufficient the sale will be invalid.** § 470. Foreign Judgments and Decrees. The courts of a coun- try have no extraterritorial jurisdiction, hence, they can not, by judgment or decree, affect title to land situated in a foreign coun- try. It is true, that courts of equity may, and do, entertain bills for the specific performance of contracts respecting lands situate in a foreign country, if the parties are resident within the ter- ritorial jurisdiction of the court, but, in such cases, the court can 22 Green v. Myers, 98 Mo. App. 438. 27 A decree need not set out the evi- 23 Lawrence v. Englesby, 24 Vt. dence on which it is founded but 42. should find the allegations of the pe- 21 Eix V. Smith, 8 Vt. 356. tition to be proved, and, generally, 25 Sparhawk v. Buell, 9 Vt. 41 ; it will be presumed that the evidence Pollock V. Buie, 43 Miss. 140. But warranted the decree, Bree v. Bree, see Martin v. Williams, 42 Miss. 51 111. 367. 210. 28 Crosby v. Dowd, 61 Cal. 557; 26 Holmes v. Holmes, 27 Okla. Hill v. Vail, 66 OaJ. 130, 140, 111 Pac. 220, 30 L. R A. (N. S.) 920. 490 ABSTRACTS OF TITLE. [§ 470 not bind the land itself by any decree it may make; it can only bind the conscience of the party in regard to the land, and enforce him, by process against his person, to perform his agreement. A judgment, enforceable in the State where rendered, must be given effect in another State, under the full faith and credit clause of the Federal Constitution. Execution, however, does not issue on a foreign judgment. For this purpose a suit must be instituted in the domestic court.*^* In such event, if the court which rendered the original judgment is shown to have had jurisdiction over the subject matter and of the person against whom the judgment was rendered, such judgment is generally conclusive as to the merits of the controversy." 29 Stanton v. Embry, 46 Conn. 65. Forrest v. Fey, 218 111. 165, 75 N. E. SO Peel V. January, 35 Ark. 331; 789. CHAPTER XXVII. JUDICIAL AND EXECUTION SALES. § 471. Defined and distinguished. § 472. Execution sales — ^Validity and effect. § 473. Title under execution sales. §474. When the title vests. The writ. The levy. §477. Notice of sale. §478. Proof of publication. § 479. Execution sales as affected by death. §480. Exemption. § 481. Dower rights. § 482. Judicial sales — Validity and effect. §475. §476. § 483. Title under judicial sales. § 484. Eights of purchasers. § 485. Compelling purchaser to accept title. § 486. Order of confirmation. § 487. Effect of confirmation. § 488. Certificate of sale. § 489. Assignment of certificate. § 490. Proof of title under judicial and execution sales. § 491. Continued — Presumptions. § 492. Probate sales. § 493. Nature and requisites of pro- bate sales. § 494. Abstract of probate sales. §471. Judicial and Execution Sales — Defined and Distin- guished. No inconsiderable portion of the real property of the country changes hands every year through the media of execution and judicial sales, meaning by such terms, all sales and transfers of property made in pursuance of the orders, judgments or decrees of courts, or sales made to obtain satisfaction of such orders, judg- ments or decrees. The term "judicial sale" is properly applied only to sales made in conformity to an order or decree directing same, and requiring a subsequent confirmation or approval by the eourt.i "Execution sales," though based upon a judgment, are made under the statute, for the recovery of a specific sum of money in satisfaction of the judgment. "The chief differences between execution and judicial sales," says Freeman, "are these: the for- mer are based on a general judgment for so much money, the lat- ter on an order to sell specific property ; the former are conducted by an ofScer of the law in pursuance of the directions of a statute ; IMr. Freeman classes judicial sales as : (1) those made in chancery; (2) those made by executors, administra- tors and guardians, when acting by virtue of authority derived from orders of sale obtained in judicial proceedings; and (3) all other cases where property is sold under an order or decree of court designating such property, and authorizing its sale: Freeman Void. Jud. Sales, 15. 491 492 ABSTRACTS OF TITLE. [§ 471 the latter are made by the agent of a court in pursuance of the directions of the court ; in the former the sheriff is the vendor, in the latter, the court ; in the former the sale is usually complete when the property is struck off to the highest bidder; in the latter it must be reported to and approved by the court. ' ' ^ Sales made under an execution must conform, ^n all respects, with the rules which the law lays down for the protection of the debtor. If not so made, they may be held irregular and void. But sales made under the decree of a court are, to a considerable ex- tent, under the discretionary control of the court, which often sets them aside,, although no error or irregularity has been com- mitted, merely for the sake of an advance in the price; or which may, if satisfied that no injustice has been done, disregard irregu- larities in the conduct of the sale, and confirm the action of the master or other officer making same.* An erroneous or voidable judgment or decree stands good until reversed; and a stranger who purchases property sold under such judgment or decree will generally be protected in his purchase.* §472. Execution Sales — Validity and Effect. It is a familiar principle that statutory proceedings to divest title to land must be strictly pursued ; and that a substantial departure from the re- quirements of the statute renders the proceedings void.* As a rule, the sheriff is presumed to have done his duty in making a sale, and to have complied with all the requirements of law.^ But this rule does not apply where the fact that the sale was in violation of the statute, is apparent on the face of the record through which the title is claimed,'' although the validity of a purchaser's title will not be affected by the failure of the officer to make a seizure in the mode, or by the steps, prescribed by the statute, when such failure consists of mere irregularities.* His power to sell comes from the judgment and execution, and is not to be measured by his proceedings under the writ.» Greater strictness is required in con- 2 Freeman on Void Jud. Sales, 14. 636; Surgi v. Cohner, 22 La. Ann. 5 Lasell V. Powell, 7 Coldw. (Tenn.) 20. 277. 6 Leonard v. Sparks, 117 Mo. 103; 4 South Fork Canal Co. v. Gordon, ■ Hogue v. Corbit, 156 111. 540. 2 Abb. (U. S.) 479; MeAusland v. 7Piel v. Brayer, 30 Ind. 332. Pundt, 1 Neb. 211; Storm v. Smith, 8 Wood v. Morehouse, 1 Lans. (N. 43 Miss. 497; Garrett v. Lynch, 45 Y.) 405; Stewart v. Pettigrew, 28 Ala. 204; Sinnett v. Cralle, 4 W. Va. Ark. 372; Curd v. Lackland, 49 Mo. 600. 451. 6 Stillwell V. Swarthaut, 81 N. Y. 9 Blood v. Light, 38 Cal. 649. 109; Havens v. Sherman, 42 Barb. § 472] judiciaIj and execution sales. 493 ducting the sale, the details of which are regulated by express statutory provisions in all the States, and non-compliance in this particular, as by offering land in gross instead of in parcels, etc., will be sufficient to vitiate the proceeding, and the sale may be set aside, even as against a stranger who has bought the property and paid the price.^" One who buys at execution sale is not an innocent purchaser in the full meaning of the term, but takes the estate subject to all equities existing against it at the time of the purchase, and is chargeable with notice of all defects in the execution debtor's title, together with the value of the property and of its situation, and of the legal rules bearing upon the transaction-^^ Where, however, a purchaser looks to the record and finds there a subsisting judg- ment, and buys in good faith, pays the price and receives a deed, he takes a title which is valid until the sale is set aside and the purchase money refunded.^^ The doctrine of caveat emptor applies to every purchaser at a sheriff's sale. He buys at his peril, and succeeds only to the right and title which the defendant in execution had at the time the judgment was rendered against him.^* The selling officer has no power to warrant the title and the purchaser is presumed to have made all proper examinations and to know what he is ac- quiring.'* The judgment is, of course, the foundation for the title, and the purchaser must see to it that at the time of the sale such judgment is subsisting and unsatisfied, for, however innocent he may be, he can acquire no title when the power which confers the same has ceased to exist.'^ Where an execution sale is followed by deed it should be snown in the regular course of title as one of the muniments. In such case the abstract of the transaction commences with a statement of the entry of judgment, issuance of execution and return of the writ. Where the matter is apparently regular, and particularly 10 Vass V. Johnson, 41 Ind. 19 ; Frost v. Bank, 70 N. Y. 553 ; Barron Browne v. Ferrea, 51 Cal. 552; Mor- v. Mullin, 21 Minn. 374; Holmes v. ris V. Eobey, 73 111. 462. Compare Shaver, 78 111. 578; McCartney v. Eaton V. Eyan, 5 Neb. 47. King, 25 Ala. 681. llBiehardson v. Wicker, 74 N. C. 14Atwood v. Wright, 29 Ala. 346; 278; Allen v. McGaughey, 31 Ark. Bassett v. Loekard, 60 111. 164; Hens- 252 ; Morris v. Eobey, 73 lU. 432. ley v. Baker, 10 Mo. 157. 12 Owen V. Navasota, 44 Tex. 517; 15 Wood v. Calvin, 2 Hill (N. Y.) Wing V. Dodge, 80 El. 564. 566 ; Jackson v. Anderson, 4 Wend. IS Miller v. Wilson, 32 Md. 297; (N. Y) 474; King v. Goodwin, 16 Walke V. Moody, 65 N. C. 599; Mass. 63. 494 ABSTRACTS OP TITLE. [§472 where it is ancient and the rights of present owners are unques- tioned, only a brief mention is necessary. Thus : Thomas Jones ] In the Circuit Court of Cook County, III. vs. I Case 43,520. James E. Smith. J Assumpsit. Judgment against defendant for $3,500.00 and costs entered Dec. 17, 1895. Execution No. 19,987, issued, dated Jan. 3, 1896. Execution returned levied Jan. 9, 1896, upon all the right, title and interest of defendant in and to the northwest quarter, etc. [here set out description the land], and satisfied iy a sale of said land on Jan. 29, 1896, to Henry Jackson for $3,600.00. The certificate of sale and sheriff's deed should foUow.^^ § 473. Title under Execution Sale. A purchaser at an execu- tion sale succeeds to all the rights which the judgment debtor had,^' and takes the same title possessed by him with all its im- perfections and infirmities.!* It is the policy of the law, however, to uphold and protect such titles, and though the deed purports to convey only "the right, title and interest" which the judgment debtor possessed or had in the land at date of the judgment, yet the purchaser under such a deed will take the entire estate as against prior unrecorded deeds or equities of which he had no notice.^^ The title so acquired may be sold and conveyed, even pending an appeal,*" and the reversal of the judgment for error, where the court had jurisdiction of the subject-matter and the parties,*^ will not materially affect the purchaser 's rights, for it is a settled prin- ciple of the common law, coeval with its existence, that the de- fendant shall have restitution of the purchase money, and the purchaser shall hold the property sold, except where the plain- is For a precedent see § 488. ject to be set aside, on motion made 17 Morgan v. Bouse, 53 Mo. 219 ; in proper time by the defendant, Williams v. Amory, 16 Mass. 186. whose land has been sold; but no one 18 Hicks V. Skinner, 71 N. C. 539; except the defendant in the execution Comeron v. Logan, 8 Iowa 434; Bas- can question the sale for irregularity, sett T Lockard, 60 HI. 164. however gross, and if not so set aside, l9Harpham v. Little, 59 111. 509. the sale will pass the defendant's in- 20 The issue of an execution on a terest in the land : Shirk v. Gravel judgment, pending an appeal, is ir- Eoad Co., 110 111. 661. regular, but not void, and a sale of 21 Feaster v. rieming, 56 111. 457 ; land under such an execution is sub- Hobson t. Ewan, 62 111. 146. §475] JUDICIAL AND EXECUTION SALES. 495 tifiE in the judgment becomes purchaser, and still holds the title."^ In this latter event the title acquired under such judgment is di- vested by the reversal.'^* §474. When Title Vests. In all cases where a redemption is permitted, the legal estate of the judgment debtor is not divested by the sale until after the period allowed for redemption, nor even then, unless the sale has been consummated by a deed from the sheriff. Until the execution of such deed the title of the purchaser is inchoate, for by the simple act of purchase he acquired no legal estate in the land, but only a right to an estate which may be per- fected by conveyance.^* Prior to the sheriff's deed, the debtor is entitled to the possession and profits of the land, while the equity held by the purchaser is a lien upon the land for the amount of his bid and interest.** § 475. The Writ. It is a cardinal rule that the execution must conform substantially to the judgment, or the sale will be void ; ^* yet it. is not customary to more than allude to this instrument in the abstract of an execution sale, unless special instructions are given otherwise. Its date, number and import are usually noticed, and in case of a venditioni exponas a brief allusion to the lands specifically described. Nor will a more extended notice, in most cases, be necessary, as the purport and effect of the writ are gen- erally recited in other of the proceedings under it. Where an exe- cution is not signed by the officer authorized to issue it,^'' or where there is an insufficient teste, as where the seal of the court is omitted,** or where there is a want of correspondence with the judgment, such defects should be shown, as a valid execution is one of the integral links in the chain of title, but mere clerical 22 Fergus v. Woodworth, 44 HI. 26 Crittenden v. Leitenadorfer, 35 374; Mansfield v. Hoagland, 46 111. Mo. 239; Hightower v. Handlin, 27 359. In this event the sale is usu- Ark. 20; Hastings v. Johnson, 1 Nev. ally void under special statutes: see 612. Hutehena v. Doe, 3 Ind. 528 ; but 27 Eawlea v. Jackson, 104 Ga. 593 ; compare Gossom v. Donaldson, 18 B. Wooters v. Joseph, 137 111. 113. Hon. (Ky.) 230. 28 This has been held a fatal defect 28 Powell V. Sogers, 105 111. 318. which will invalidate the deed: Ins. 24 Smith V. Colvin, 17 Barb. 157 Evertson v. Sawyer, 2 Wend. 507 Bowman v. The People, 82 111. 246 Co. V. Hallock, 6 Wall. 556; Davis V. Eansom, 26 111. 100; Weaver v. Peasley, 163 HI. 251 ; Gordon v. Bod- and see Eueker v. Decker, 49 HI. well, 59 Kan. 51; but see, contra, 377. Oorwith v. Bank, 18 Wis. 560. 2B Vaughn v. Ely, 4 Barb. 159. 496 AESTEACTS OF TITLE. [§ 475 variance will not invalidate,^ nor afford ground for collateral im- peachment.'*' An execution i'ssued and levied in the name of de- ceased plaintiffs, or against deceased defendants, will be void in some States, but may be effectual in others, provided certain statu- tory provisions are complied with.'^ § 476. The Levy. A levy of lands is made by an indorsement thereof upon the writ, there being no such thing as seizure of the property. The sheriff, when levying on real estate, does not disturb the possession of the debtor nor even his right of pos- session, and this constitutes the chief distinction between a levy on real estate and on personal property.'^ The decisions as to what constitutes a valid levy are generally harmonious in de- claring that the land must be described with sufficient certainty to enable it to be identified withoiit other evidence,*' but if de- fective in this respect it will be cured by a correct deed.'* In an abstract of the sale it is regarded as a minor detail, which may be briefly noticed in the return of the execution, but the certificate and deed supply in better shape the necessary information con- cerning it. "And," observes Mr. Rorer,'* "though the purchaser relies on the judgment, execution, the levy and the deed, yet when the purchaser at sheriff's sale shows an authorized execu- tion and deed, a correct levy and notice is presumed. A judg- ment, execution and deed from the sheriff are sufficient to support the title of a purchaser without proof of a levy, though the return be incorrect, or there be no return."" § 477. Notice of Sale. It is a general statutory provision that land shall not be sold by virtue of any execution except at public sale, nor unless the time and place of holding such sale shall have 89 Wheaton v. Sexton, 4 Wheat. 35 Eorer Jud. and Ex. Sales, 292, 503; Jackson v. Spink, 59 111. 404; citing Brooks v. Eooney, 11 Ga. 423; Riddle v. Bush, 27 Tex. 675; Wood- Hopping v. Burnam, 2 Greene, 39; ley V. Gilliam, 67 N. C. 237. Evans v. Davis, 3 B. Mon., 344; Mc- 30 Butler V. Haynes, 3 N. H. 21. Entire v. Durham, 7 Ired. L. 151 ; 81 Hildreth v. Thompson, 16 Mass. Jackson v. Young, 5 Cow. 269 ; Phil- 19l'; Meek v. Bunker, 33 Iowa 169 ; lips v. Coffee, 17 111. 154. Bowen v. Bonner, 45 Miss. 10. 36 Levy on attachment is gov- 32 Dement v. Thompson, 80 Ky. 255. erned by different principles, and a 33 Chadboume v. Mason, 48 Me. return or certificate filed is of vital 389; Gault V. Woodbridge, 4 McLean, importance in preserving the lien: 329. See Lis Pendens and Attachments. 31 Hopping V. Burnam, 2 Greene (la.) 39. § 47.8] JUDICIAL AND EXECUTION SALES. 497 been previously given by prescribed methods. These methods gen- erally consist in putting up written or printed notices of sale and by advertisement thereof in some newspaper, whicli notices must describe the parties, property, terms, etc., and this applies as well to judicial as to execution sales.*' This notice it is well to briefly abstract, showing only the legal requirements in a connected narrative form, and when proof of publication is appended, show this as well. The proof of publication is afforded by the pub- lisher's affidavit or certificate of same. The statutes requiring notice of sale are said to be directory merely, and failure to give such notice will not avoid the sale so as to defeat the title of an innocent purchaser not himself in fault ; ^s hence, a passing allu- sion sufficient to show its purport, seems all that is necessary in regard to the notice.*' In the general synopsis of sale it may be mentioned in this manner : Printed copy of notice of sale, gives title of court and cause, de- scribes the said premises,*" and fixes on Sept. 7, 1881,*^ at 11 o'clock a. m.,^ at the east door of tJie Court House,*^ Chicago, III., and for cash, as the time, place and terms of said sale. §478. Proof of Publication. Appended to the notice of sale will usually be found an affidavit or certificate by the publisher of a newspaper, to the effect that the notice was duly published S7 Olcott V. Eobinson, 20 Barb. 148. Stevens v. Bond, 44 Md. 506 ; Collier 38Freem. Ex. § 284. With regard v. Vason, 12 Ga. 440; Allen v. Cole, to probate sales a more strict rule 9 N. J. Eq 286. seems to prevail and notice is held 41 The date of sale is material and essential: Blodgett v. Hitt, 29 Wis. destroys the validity of the notice if 169; Mountour v. Purdy, 11 Minn. of such a oharaoter as to mislead the 384. public: Fenner v. Tucker, 6 E. I. 551. 39 Defective notice does not reu- 42 If the notice does not name the der the sale void, or even voidable exact hour at which the sale is to be unless the purchaser has notice of held, it should name the hours be- the irregularity. Purchasers in good tween which it will take place, which faith can not be affected by such will be sufficient if the hours named non-compliance with the statute: Os- belong to the business hours of the good V. Blaokmore, 59 111. 261; Watt day: Cox v. Halsted, 2 N. J. Eq. 311; V. McGalliard, 67 HI. 513. Burr v. Borden, 61 HI. 388. A failure 40 A minute description is not nee- to state some time renders the notice essary provided what is given is cor- insufficient: Trustees v. Snell, 19 111. rect and sufficiently identifies the 156. property to enable the public to un- 43 The designation of a place of derstand, by the exercise of ordinary sale is an essential requisite of the intelligence, what is to be sold: notice, without which it is in law Warvelle Abstracts — 32 498 AKSTEACTS OF TITLE. [§478 according to law, and this affidavit or certificate it is well to show in brief terms. Its material points may be noted as follows : Appended to the foregoing is, Affidavit by Myra Bradwell, President of the Chicago Legal News Co. Subscribed and sworn to, June 1, 1883. Recites, that a notice "of which the annexed printed sUp is a true copy," was duly published in the Chi- cago Legal News, a weekly newspaper of general circulation, printed and published in Cook County, III., for the period of three suc- cessive weeks ;^ that the date of the first publication was Jan. 6, 1883; *^ that the date of the last publication was Jan. 20, 1883.^ A certificate of publication under the statute is sufficient if it shows a substantial compliance therewith, but the essential requi- sites must appear; such affidavit or certificate may properly be likened to the return of an officer, and like such return should show all jurisdictional facts. A defect in the certificate of publication, in not stating the first and last days of the publication, has been held to be cured by a recital in the decree that "it appearing to the court that notice according to law was given," etc., the presumption being that the court received other evidence than the certificate, of the date of the publication.*'" It must be observed further, that the certificate or affidavit of publication can only be made by the publisher or his authorized agent,** and a certificate signed "John Wentworth, pub- no notice whatever: Bottineau v. Ins. Co., 31 Minn. 125; Blodgett v. Hitt, 29 Wis. 169. 44 The number of times, or period of time, the notice was published, and the date of the first and last is- sues containing same, are indispen- sable to its validity: Beygeh v. Chi- cago, 65 111. 189. 45 It may be well to observe that the date of publication does not fall on Sunday as this would invalidate the notice: Smith v. Wileox, 24 N. Y. 353 ; Scammon v. Chicago, 40 111. 146 ; Shaw V. Williams, 87 Ind. 158. 46 It would seem that the statute is satisfied if there are three differ- ent insertions in as many weekly is- sues before sale, although twenty-one days do not elapse from first insertion to day of sale, Pearson v. Bradley, 48 111. 250. Where this fact appears, liowever, counsel should notice it in his opinion, if the statute requires twenty days' notice. 47 Moore v. Neil, 39 lU. 256. The foregoing example, though inserted in connection with execution sales, is that also employed in all decretal sales as well, either in chancery or in pro- bate, and must be shown in the same manner in expositions of such sales. 48 This matter is statutory ; usually the proof of publication must be made by the "printer or publisher." §480] JUDICIAL AND EXECUTION SALES. 499 lisher, by Reed, ' ' has been held insufficient.^^ In this instance the certificate did not purport to be given by the publisher, but by another person who used the publisher's name but failed to show his own authority. Where a newspaper is published by a firm or by a corporation, a certificate by one of the partners, or by an officer of the corporation, when such certificate shows the official connection of the person making it with the newspaper, will usually be sufficient.'" §479. Execution Sale as Affected by Death. The death of a plaintiff after judgment and before execution issued is of compara- tively little moment in respect to title, as his personal representa- tives may sue out execution in the name of such deceased plaintiff, or in their official capacity, as the statute may direct.*^ If the defendant dies after judgment, the plaintiff may sue out execution in the mode prescribed by statute, or, if permissible, proceed by the common law scire facias. But, in the event of the death of either party prior to execution, to render valid a sale under the judgment it should be revived by scire facias, or an execution must be sued out in the mode prescribed by statute, which usually pro- vides for the filing or recording, in the court in which the judg- ment exists, of the letters testamentary or of administration, after which execution may issue and proceedings be had thereon, in the name of the executor or administrator.*^ §480. Exemptions. Though all the real estate of a judgment debtor may be primarily liable to seizure and sale on execution, a statutory right has been given to him in every State, to relieve a 49 Pox V. Turtle, 55 111. 377. 62 Seammon v. Swartout, 35 111. 60 Fox T. Turtle, 55 HI. 377. It 326; Brown v. Parker, 15 111. 307. would seem to be the rule in some In this case a sheriff's deed was re- States, that when the affidavit of pub- lied on for title. The execution Ueation is defective, an amended affi- under which the sale was made davit may be filed according to the was not issued until several years truth of the case: Bunce v. Beed, after the death of the judgment 16 Barb. 347. creditor, without first reviving the 61 It is a familiar provision of the judgment in favor of the personal statute that liens created by law do representative, or recording in court not abate by reason of the death of his letters of administration, and was any plaintiff or plaintiffs, but that also issued in the name of the de- same shall survive in favor of the ceased plaintiff, and not in the name executor or administrator, whose duty of his personal representative. Held, it shall be to have the judgment en- that the execution, and all proceedings forced: Durham v. Heaton, 28 111. under it, were absolutely void. 264. 500 ABSTRACTS OF TITLE. [§ 480 portion of same from this burden, but the exercise of this right is largely dependent on intention. When, therefore, title is claimed, or sought to be adduced through the medium of an execution sale, and the abstract furnishes no information, it would seem that an in- quiry should be made concerning the status of the land with refer- ence to the statutory right of exemption. The debtor is not always obliged to assert his right at the time of the levy, neither will a subsequent sale impair same, and the question, when such a state of facts may exist under the statute, becomes of controlling im- portance. A sale of the homestead under execution being inopera- tive, the purchaser thereat takes no title.** § 481. Dower Rights. It must always be borne in mind, while making searches of the character now under consideration, that a sale made in pursuance of a judgment affects only the title of the parties to the suit. To the great majority of judgments at law the wives of the defendants are not made parties, and it necessarily follows, in such a case, that an execution sale of the husband's land does not extinguish the wife's right of dower.** Therefore, whenever title is derived through a sale of this kind, and the records fail to disclose anything respecting the domestic condition of the judgment debtor, an inquiry is raised and a requisition for further information should be made. § 482. Judicial Sales — Validity and Effect. A sale of land un- der, a decree, must be made in the manner and on the terms pre- scribed in such decree ; ** and a confirmation by the court of the report of the offlcer, can not, it seems, cure the invalidity of a sale not so made.*® But a sale will not be disturbed unless the party suing can show an injury resulting to him therefrom,*'' as well as an interest in the subject-matter,** while it is always the policy of the law to uphold judicial sales, and to protect the rights 63 Conklin v. Toster, 57 111. 104. whether execution or judicial, are 64 Butler V. Fitzgerald, 43 Neb. classed by Mr. Freeman, as (1) those 192; Dayton v. Corser, 51 Minn. 406; which are void because the court had Ficklin v. Eixey, 89 Va. 832. no authority to enter the judgment B6Langsdale v. Mills, 32 Ind. 380; or order of sale; (2) those which, Augustine v. Doud, 1 111. App. 588. though based on a valid judgment' or 66 Bethel v. Bethel, 6 Bush (Ky.), order of sale, are invalid from some 65; but this will only apply to gross vice in the subsequent proceedings: departures; mere irregularity is gen- Freeman Void Jud. Sales, 15. erally cured by confirmation : William- 67 Matter of Gilmer, 21 La. Ann. son v. Berry, 8 How. 546; Koehler 589. v. Ball, 2 Kan. 160. Void sales, 68 Nixon v. Cobleigh, 52 111. 387. §483] JUDICIAL AND EXECUTION SALES. 501 of purchasers under them ; ^* and although the judgment or decree may be reversed, yet all rights acquired at a judicial sale while the decree or judgment was in force, and which it authorized, will be protected. It is sufficient for the buyer to know that the court had jurisdiction and exercised it, and that the order on the faith of which he purchased was made, and authorized the sale,^* for where the court has jurisdiction of the parties, and of the subject-matter of the litigation, no matter how erroneously it may thereafter pro- ceed, within the bounds of its jurisdiction, its decree will be con- elusive until reversed or annulled in some direct proceeding,^^ and the title to property acquired at a sale under such decree, by a stranger to the record, will be upheld, although the decree itself may afterward be reversed for manifest error.^'' On the other hand it must be remembered that the rule of caveat emptor applies to all judicial sales,®^ and one who purchases thereat must, for his own protection, always exercise that reasonable caution and vigilance which the rule exacts. It is of the utmost importance, therefore, that in the examination of a title depending on a judicial sale every essential step of the transaction should be carefully scrutinized and the facts of jurisdiction established. §483. Title under Judicial Sale. The title acquired under a sale by order of the court differs in no material respect from that obtained where the sheriff is the vendor. The purchaser is entitled to the interest of all the parties to the suit, and to the interest of those who have purchased pendente lite from any of the parties.^* But he acquires no new rights, nor does the' fact that the court is regarded as the vendor®* confer upon him any superior equities. A court does not insure the title to real property sold under its de- crees,®® and the purchaser buys, presumably, with full knowledge of all defects and pre-existent liens.®''' He is charged with notice 59 Dorsey y. Kendall, 8 Bush 65 In all sales made under the au- (Ky.), 294; Allman t. Taylor, 101 thority of a decree in equity, the 111. 185; Norton v. Eeardon, 67 Kas. court is the vendor, and the commis- 302. siouer making the sale is the mere 60 Gray v. Brignardello, 1 Wall. agent of the court. The decree is 627; Fergus v. Woodworth, 44 111. the warrant of authority to sell: 374. ■ Parrat v. Neligh, 7 Neb. 546; Thomp- 61 Norton v. Eeardon, 67 Kas. 802 ; son v. Craighead, 32 Ark. 291. Noland v. Barrett, 122 Mo. 181; 66Gunton v. Zantzinger, 3 Mac- Bland V. Muneaster, 24 Miss. 62. Arthur (D. 0.), 262. 68 Allman v. Taylor, 101 111. 185. 67 Hoiisley v. Lindsay, 10 Heisk. 63 Holmes v. Shaver, 78 111. 578. (Tenn.) 651; Guynn v. MeCauley, 32 64Harryman v. Starr, 56 Md. 63. Ark. 97; Capehart v. Dowery, 10 W. 502 ARSTBACTS OP TITLE. [§483 of all facts disclosed by the record which affect the rights of others in the property sold,«* and he is bound to examine the title or pur- chase at his peril. If he buys without an examination and obtains no title, he must, as a general rule, suffer the loss arising from his neglect, unless fraud or mistake has entered into the trans- action.^9 Prior to confirmation he has no independent rights, but is regarded as a mere proposer ; '* after confirmation his rights become vested, and the sale will not be set aside except for fraud, mistake, surprise, or other cause for which equity would give relief if the sale had been made by the parties in interest instead of by the court.'^ Neither will the title of an innocent purchaser, a stranger to the record, be affected by the subsequent reversal of the decree for irregularity ; ''^ but where the purchaser was an original plain- tiff in the suit, or an assignee of the judgment or decree, he ac- quires only a defeasible title, which may be defeated by a subse- quent reversal, and the same rule obtains whether the reversal is based on an amendable defect or one that is incurable.''* § 484. Bights of Purchaser. A purchaser at a judicial sale has a right to presume that it is conducted according to the provisions of law,'* and proceedings in court, in a matter in which it has jurisdiction, will be presumed to be regular. Hence, a purchaser, at a sale made by order of such court, is not bound to look further back than the judgment or decree, and the legal effect it may have on the title which is the subject of inquiry.''^ Such judgment is a complete protection to a purchaser under it,'"^ except as to matters which reach the jurisdiction of the court. Neithet is he bound, in any case, to see to the application of the purchase money, for this is under the control of the court; and however unwise the disposition may be, his title will not be affected by it." §485. Compelling Purchaser to Take Title. A sale made by order of a court of equity is, until final ratification, an executory Va. 130; Watson v. Hoy, 28 Sratt. Ala. 358; Fiahbaek v. Weaver, 34 (Va.) 698. Ark. 569; MoLagan v. Brown, 11 68 Williamson v. Jones, 43 W. Va. 111. 519. 562; Meaeham v. Steele, 93 111. 135. 74 Browning v. Howard, 19 Mich. 69 Tilley v. Bridges, 105 111. 336. 323. 70 State V. Eoanoke Nav. Co., 86 76 Fleming v. Johnson, 26 Ark. 421 ; N. C. 408. Dugan v. FoUett, 100 lU. 581; AU- 71 Berlin v. Melhom, 75 Va. 639. man v. Taylor, 101 111. 185. 72 Sutton V. Schonwald, 86 N. C. 76Hening v. Punnett, 4 Daly (N. 198; Barlow v. Stanford, 82 lU. 298. Y.), 543. 78 McDonald v. Life Ins. Co., 65 77:&otts v. Steams, 91 U. S. 638. §486] JUDICIAL AND EXECUTION SALES. 503 contract, open to objection, and not to be enforced if the enforce- ment would be inequitable and against good conscience.'"* A pur- chaser can not be compelled to accept a doubtful title. A title is doubtful when its condition invites litigation. When doubts are raised by extrinsic circumstances, which neither the purchaser nor the court can satisfactorily investigate, for want of means to do so, the court will refuse to impose such title on the purchaser. When the means of inquiry are offered, and the result is satisfactory, performance will be enforced.''' But all objections must be made before the sale is confirmed,*" for after confirmation no relief will be granted to the purchaser upon the ground of defect of title ; *^ he can not have a rebate of price on discovering liens unknown to him before confirmation, ^^ and even though the title he may pro- cure from the court may be worthless, he can not be relieved from payment of the price.'* A purchaser can not, after confirmation, set up, as a ground of relief against his purchase, facts known to him before it was completed ; ** and one who buys without inquiry or examination will not be relieved because of a misapprehension as to the legal effect of the decree for sale and the character and extent of the title he will acquire ; such mistake being a mistake of law, and due to the carelessness of the purchaser himself.** §486. Order of Confirmation. After the sale, and before the execution of a conveyance, in all cases of judicial sales, and some- times of execution sales as well,*® a return or report of sale must 78 Hunting V. Walter, 33 Md. 60; ter: Watson v. Hoy, 28 Gratt. (Va.) Onnsby v. Terry, 6 Bush (Ky.), 553; 698. But if mistake is relied on it MuUins V. Aiken, 2 Heisk. (Tenn.) must be the mistake of both parties. 535. Long v. Weller, 29 Gratt. (Va.) 347. 79 Kostenboder v. Spotts, 80 Pa. St. A.nd see Berlin v. Melhom, 75 Va. 430; Monaghan v. Small, 6 Bieh. (S. 639. C.) 177; Graham v. Bleakie, 2 Daly 82 Farmers' Bank v. Peter, 13 Bush (N. Y.), 55. (Ky.), 591; Curtis v. Boot, 28 111. 80 Long V. Weller, 29 Gratt. (Va.) 367. 347. SSCapehart v. Dowery, 10 W. Va. -81 Farmers' Bank v. Peter, 13 Bush 130, and see Dills v. Jasper, 33 HI. (Ky.), 591. But the general rule, 263. that objeetions, by purchasers, to 84 Spence v. Armour, 9 Heisk. judicial sales, for defects of title, (Tenn.) 167. must be made before the sale is eon- 85 Hayes v. Stiger, 29 N. J. Eq. firmed by the court, and that objec- 196; Morris v. Hogle, 37 HI. 150; tions afterward come too late, does Johnson v. Baker, 38 111. 98. not apply to the equity of a pur- 86 Confirmation of execution sales chaser arising from after discovered is not necessary at comnion law, but mistakes, fraud, or other like mat- is sometimes rendered so by statute. 504 ARSTKACTS OP TITLE. [§ 486 first be made to the court which ordered the same, which upon ex- amination approves and confirms the action of the officer who made the sale.*' Until this has been done the sale is incomplete, and con- fers no rights on the purchaser.** In judicial sales a confirmation is rendered necessary from the fact that the court, and not the officer making the sale, is the vendor, and confirmation is regarded as the final consent; but even where there has been no confirma- tion, if a deed has been made and delivered, and there has been a possession and holding thereunder, time may, if sufficiently long, operate to confirm and ratify the sale, and perfect the title of the purchaser.*^ Where an abstract of judicial proceedings culminating in a sale and conveyance, is shown, the order of confirmation is material, and if wanting, the apparent defect should be noted by counsel and proper inquiries made regarding same. § 487. Effect of Confirmation. An order confirming a sale of land, made by a court having jurisdiction of the parties and the subject-matter, is a final and conclusive determination of all mat- ters passed upon or which might have been passed upon had they been presented by way of objection. It binds all of the parties and their privies and forever precludes any attack upon the sale except for fraud, mistake, surprise, or some other circumstance for which equity would give relief if the sale had been made by the parties in interest instead of by the court.'" So, too, as the order of con- firmation is practically a final judgment it has the effect of curing all irregularities in the proceedings leading up to the sale.*^ But, while the order of confirmation cures all irregularities in the mode of making the sale, it adds nothing to the authority of 87 A sale of land under a decree sary: MeHany v. Sohenk, 88 HI. 357. will not be approved by a court if 89 Gowan v. Jones, 18 Miss. 164; fraud or misconduct on the part of Korer on Jud. and Ex. Sales, 57. In any of the parties to the sale is such an event, however, the deed would shown. Barling v. Peters, 134 111. be regarded only as color of title in 609. connection with adverse possession. 88Busey v. Hardin, 2 B. Mon. aOKincaid v. Tutt, 88 Ky. 392; (Ky.) 407; Bank v. Humphreys, 47 Berlin v. Melhorn, 75 "Va. 639; Brown 111. 227 ; Williamaon v. Berry, 8 How. v. Gilmor, 8 Md. 322 ; Speck v. PuU- 547 ; Thorn v. Ingram, 25 Ark. 52 ; man Co., 121 HI. 33 ; Willis v. Nichol- Valle V. Fleming, 19 Mo. 454; Hunt- son, 24 La. Ann. 545. ing V. Walter, 33 Md. 60. Approving 91 Thorn v. Ingram, 25 Ark. 53 ; the sale makes the ofleer's act that of O'Brien v. Gaslin, 20 Neb. 347; the court, and where, upon such ap- Koehler v. Ball, 2 Kan. 172; Hotch- proval, he is ordered to make a deed, kiss v. Cutting, 14 Minn. 537; Con- no order confirming the deed is neces- over v. Musgrove, 68 111. 58. §488] JUDICIAL AND EXECUTION SALES. 505 the officer who made it. If the sale was without authority, the ratification of it by the court must be considered as having been given inadvertently,*^ or, if given deliberately and on a full ex- amination of the facts, must still be regarded as an unauthorized proceeding.®* So, too, where the court has exceeded its jurisdiction in ordering the sale, a confirmation would have no effect, for the sale being void, there was no subject-matter upon which the order of confirmation could act. If the court had no jurisdiction to order the sale, it had none to confirm it, for where there is no power to render a judgment or to make an order, there can be none to con- firm or execute it.** But where these questions do not arise it is presumptive evidence that the sale was regularly and properly made, and questions arising under it can not be presented col- laterally.*^ § 488. Certificate of Sale. Where a contract for the sale of land is executory on both sides, it is necessary that it should be evi- denced by a memorandum in writing, signed by the vendor, and sheriff's sales form no exception to the general rule.*® The usual method is to execute a certificate of sale. If no certificate or deed is given to the purchaser, and no memorandum of the sale is made on striking off the property, it has been held that the sale can not be enforced, even though the purchase money is paid, and the sheriff afterward makes due return of the sale.*^ But this is an extreme view. The sheriff, in making sales, acts as the legal agent and representative of the plaintiff and defendant in the judgment, and of the accepted bidder at the execution sale, and he has the right to biad all the parties by his memorandum. This, it seems, he may do by his return on the execution ; ** his return of the facts attending the purchase, made at the time of the sale, taking the case out of the statute of frauds,** and binding all parties by an enforceable 92 Wills V. Chandler, 1 MoCrary (C. 96 Buckle v. Barbour, 48 Ind. 274; Ct.), 276. Hickenbotham v. Black- Evans v. Ashley, 8 Mo. 177. 54 III. 316. 97Gossard v. Ferguson, 54 Ind. 98Shriver's Lessee v. Lynn, 2 How. 519; but see Sanborn v. Chamberlin, 60, and see Jacobus v. Smith, 14 111. 101 Mass. 409. 359. 98 Warehouse Co. v. Terrill, 13 Bush 94Townsend V. Tallant, 33 Cal. 54; (Ky.), 463; Sanborn v. Chamberlin, Hawkins v. Hawkins, 28 Ind. 70; 101 Mass. 409; Eemington v. Linthi- Bethel v. Bethel, 6 Bush (Ky.), 65. cum, 14 Pet. 92. 96 Crowell V. Johnson, 2 Neb. 146 ; 99 It is a prevailing rule, however, Matthews v. Eddy, 4 Oreg. 225; that after confirmation judicial sales Eaton V. White, 18 Wis. 517; Speck are not within the statute of frauds; V. Pullman Co., 121 HI. 33. Bozza v. Eowe, 30 111. 198; Fire Ins. 506 ABSTRACTS OF TITLE. [§488 executory contract. It is no part of the office of a sheriff's return, however, to show what land is sold on execution, the province of a return being to show the satisfaction or part satisfaction of the judgment, or failure to make satisfaction thereof, and the par- ticulars of the sale, subject-matter, consideration, purchase, etc., are best shown by the certificate of purchase or by the recitals in the sheriff's deed.^ Deeds do not issue immediately upon execution sales, and, in many cases, judicial sales as well, but a reasonable time is allowed during which the judgment debtor may redeem the property upon payment of the judgment, costs, charges, etc., and a certificate stat- ing the facts is issued to the purchaser at the time of the sale.^ A duplicate of this certificate is recorded by the officer in the registry of deeds, and the certificate, duplicate, or record of same, is, by law, made evidence of the facts therein stated. In case of redemption, as provided by law, a certificate of redemption is issued and recorded in like manner. The certificate of sale made by the sheriff is sufficiently shown as follows. Seth Hanchett, Sheriff of Cook Co., Ills., to Hiram Smith. Certificate of sale. Dated March 1, 1882. Recorded March 2, 1882. Book 200, page 210. Said Sheriff (by deputy)^ certifies that by virtue of a certain (alias, pluries, etc.) writ of execution to him directed from the Superior Cou/rt of Cook County, issued on a judgment rendered at the November Term, 1881, of said court, in favor of William Thompson, plaintiff, against Thom,as Jones, de- fendant, for $1,000.00 and costs, dated February 1, 1882, he did on March 1, 1882 at 10 o'clock A. M., at the front door of the court house in the city of Chicago (the time and place aforesaid having been duly advertised according to law), sell at public vendue all right, title and interest of said defendant in and to [here set out the description as found in the certificate] to Hiram Smith for $1, 035.00, said sum being the highest and best bid offered for said tract or lot of land, the same having been first offered in separate Go. V. Loomis, 11 Paige, 431; Steward 2 The legal effect of the certificate V. Garvin, 31 Mo. 36; Hutton v. Wil- is to evidence the lien of the pur- liams, 35 Ala. 503. And in some chaser upon the lands, for the amount States they are held to be not vrithin of his bid and interest, during the the statute at all: Fulton v. Moore, period allowed for redemption: 25 Pa, St. 468; Halleok v. Guy, 9 Vaughn v. Ely, 4 Barb. 156, and see Cal. 181. Evertson v. Sawyer, 2 Wend. 507. 1 Gardner v. Eberhart, 82 111. 316. 8 When such is the ease. § 488] ' JUDICIAL AND EXECUTION SALES. 507 tracts or lots without receiving any bid or bids therefore or for any part thereof, and the purchaser will be entitled to a deed of the premises so sold on March 1, 1883, unless the same shall be redeemed as provided by law. As has been seen, where lands are sold by order of court, although the sheriff is a proper person to make the sale, the court has dis- cretionary power to appoint a commissioner, master in chancery, or other ofScer of the court, or any fit and proper person to make it. Sales made by a commissioner or master, under the direction of a court of chancery, do not stand in all respects on a footing with sales made by the sheriff under an execution. The latter are made under the naked authority of the writ, the former under the direct supervision of the court.* Judicial sales are usually intrusted to a master, who also executes the deed, and on such sale a certificate issues to the purchaser in like manner as in sales on execution. The following abstract presents the salient features of a master's certificate : Edward A. Dicker, Master in Chance- ery of the Circuit Court of Cook to William Jackson. Doc. 10,028. Certificate of Sale. Dated May 3, 1880. Recorded May 8, 1880. Book 210, page 500. County, III^ \- Said master certifies that in pursuance of a decree entered June 15, 1879, by said court in the cause in chancery entitled [here set out the title of the cause], he duly advertised according to law the lands here- inafter described to be sold at public auction to the highest and best bidder for cash at 10 o'clock A. M., on May 3,, 1880, at the front door of the court house, in the city of Chicago, III. That at the time and place, so aforesaid, appointed for said sale, he attended to make the same and offered and exposed said lands for sale at public aicction to the highest and best bidder for cash. Whereupon William Jackson offered and hid therefor $1,000.00, and that being the highest and best bid therefor, he accordingly struck off and sold to said bidder for said sum the said lands which are situated in Cook County, Illinois, and described as follows, to wi,t: [here describe the property]. He further certifies that said William Jackson, his legal representatives or assigns, will be en- 4Meetze v. Padgett, 1 S. C. 127; Lasell V. Powell, 7 Coldw. (Tenn.) 277. 508 AESTBACTS OF TITLE. [§ 488 titled to a deed of said premises on May 3, 1881, unless the same shall be redeemed according to law. The certificate of sale confers on the holder no title or interest in the land, especially where the time for redemption has not ex- pired,* and the possession 9f the defendant in execution can not be disturbed until his title has been transferred by the officer's deed.® After the execution of a deed the certificate of sale ceases to be an essential muniment of title.' § 489. Assignment of Certificate. A certificate given at a judi- cial or execution sale is usually assignable by indorsement, and the assignee is entitled to the benefits, in every respect, to which the original purchaser was entitled therefrom. On the other hand, it is subject in his hands to all defenses that could have been made against it in the hands of the assignor, such assignee standing in the shoes of the original purchaser. But such purchaser does not take the land itself by his bid ; he has only an incipient interest that may or may not ripen into an absolute estate; and as a party can not assign that which he hath not, so such purchaser, not having the legal title to the property, of course can not assign it. It would seem, therefore, that the assignee can not be regarded as an inno- cent purchaser, nor entitled to protection as such, until he is clothed with a legal title by a sheriff's deed.* Where the original purchaser dies before the issuance of a deed, in the absence of an express devise, his executors will succeed to no rights in the land, and have no right to demand a deed, but the sheriff's or master's deed should be made to the deceased pur- chaser's heirs at law.' §490. Proof of Title Under Judicial and Execution Sales. Where a person attempts to avail himself of a decree, as an adjudi- cation upon the subject-matter, or as a link in his chain of title, founded on a judicial sale under the decree, he is required to pro- duce the judgment roll, so that, among other things, the court may determine, on an inspection of the entire roll, whether the court which rendered the decree had jurisdiction of the subject-matter.^" B Huf talin v. Misner, 70 111. 55. 8 Potts v. Davenport, 79 111. 455 ; 6 Hays V. Eussell, 70 111. 669. Swink v. Thompson, 31 Mo. 336. 7 Gardner v. Eberhart, 82 111. 316. 10 See "Actions and Proceedings," SEoberts v. Clelland, 82 111. 538; infra. Reynolds v. Harris, 14 Cal. 667, and see Messersehmidt v. Baker, 22 Minn. 81. § 491] JUDICIAL AND EXECUTION SALES. 509 Jt is true, the purchaser may rest, in support of his title, upon the judgment or decree, and the deed thereunder, but he must produce a valid judgment or decree, and the well established rule is, that the method of proving such judgment or decree to be valid is by the production of the roll, on an inspection of which it may be deter- mined whether the court had the necessary jurisdiction of the parties and of the subject-matter.^^ In analogy, therefore, to the presentation of the judgment roll, a synopsis of the papers and pro- ceedings in the cause should always form a preliminary statement to the abstract of the officer's deed, and this should be sufficiently full and explicit to enable counsel to pass with judicial discrimi- nation upon the merits of the title as affected by the proceedings. In all proceedings in equity, where the suits are wholly or partially in rem, this is always done, but in legal actions, or where the pro- ceeding is in personam, a different rule is generally observed. The reason for this is apparent, in that personal actions affect the land only collaterally and by reason of the statutory lien of the judg- ment, hence, examiners have not deemed it necessary to show the various steps which led up to the judgment, but have contented themselves with a simple showing of the fact that judgment was rendered. Yet if the court failed to obtain jurisdiction of the per- son of the judgment debtor, and has erroneously proceeded to hear the proofs and render judgment when no sufficient steps had been first taken to bring the parties properly before it, any sale made in satisfaction of such judgment would be void and confer no title on the purchaser. ^^ These are extreme cases, yet they have occurred, and similar cases may again occur, and it would seem, therefore, that in actions in personam, followed by judgment, execution and deed, sufScient should be shown to enable counsel to see that the parties were properly before the court. In any event, the ex- aminer should inspect the judgment roll as well as the docket, and if, from such inspection, palpable errors are manifest they should be properly noted. § 491. Continued — Presumptions. It is true, however, as a gen- eral proposition, that a domestic judgment of a court of general jurisdiction, upon a subject-matter within the ordinary scope of 11 Harper v. Eowe, 53 Cal. 233; 1 the judgment was afterward declared Greenl. Ev. §511; 2 PhU. Ev. 138; void for want of proof of service. Vail V. Iglehart, 69 111. 332. and the sale declared a nullity ; and 12 Albee v. Ward, 8 Mass. 79 ; Mil- see Johnson v.' Baker, 38 111. 98 ; but ler V. Handy, 40 111. 448. In this compare Eitch v. Beyer, 51 Tex. 336. case, there was a sale under execution ; 510 ABSTRACTS OP TITLE. [§491 its powers and proceedings, is entitled to such absolute verity, that, in a collateral action, even where the record is silent as to notice, the presumption, when not contradicted by the record itself, that the court had jurisdiction of the person also, is so conclusive that evidence aliunde will not be admitted to contradict it.^* It is probably on the strength of this doctrine that examiners have been accustomed to show only the fact of judgment, and not the preliminary steps attending it, assuming the judgment to be valid ; and attorneys have passed upon the facts so presented in view of the oft-repeated principle, that all that a purchaser must show to sustain his title, is a valid judgment, execution, and a sheriff's deed.^* If the court had jurisdiction of the subject-matter, and the proper parties were before it, and its proceedings were regu- lar, and the sale was properly conducted, then the title of an innocent purchaser will not be disturbed, and he may rest secure upon the assurances of his deed. These are the great essentials to a perfect title, and all that a purchaser must show to satis- factorily prove it. A purchaser is not bound to go through all the proceedings, and to look into all the circumstances, and see that the judg- ment or decree is right in all its parts. He has the right to presume that the court has taken the necessary steps to investi- gate the rights of the parties, and upon such investigation has properly rendered a judgment or decreed a sale. He will not be affected by any imperfection in the frame of the bill if it contain sufficient matter to show the propriety of the decree, and the propriety of the decree must be attested, and its validity de- termined, by the then existing circumstances.^^ § 492. Probate Sales. "Probate sales," says Mr. Freeman, "we are sorry to say, are generally viewed with extreme suspicion. Though absolutely essential to the administration of justice, and forming a portion of almost every chain of title, they are too often 13 Fitch V. Boyer, 51 Tex. 336; sumption in favor of the jurisdiction Guilford v. Love, 49 Tex. 715; Grif- and regularity of the proceedings of fin V. Page, 18 Wall. 350; Hahn v. courts of record or general jurisdic- Kelly, 34 Cal. 391; Freeman on tion, had its origin in the fact tiiat, Judg'ts, §124; 2 Am. Lead. Gas. at common law, no judgment could 736. be given against a defendant until 14 Coffee V. Silvan, 15 Tex. 362; he had appeared in the action: NefE Hughes V. Watt, 26 Ark. 228; Len- v. Pennoyer, 3 Sawyer, 274. uox V. Clarke, 52 Mo. 115; Splahn v. 15 Zirkle v. McCue, 26 Gratt. (Va.) Gillespie, 48 Ind. 397 ; Mayo v. Foley, 517. 40 Cal. 281. The common law pre- §492] JUDICIAL AND EXECUTION SALES. 511 subjected to tests far more trying than those applied to other judicial sales. Mere irregularities of proceeding have, even after the proceedings had been formally approved by the court, often resulted in the overthrow of the purchaser 's title. In fact, in some courts, the spirit manifested toward probate sales has been scarcely less hostile than that which has made tax sales the most precarious of all the methods of acquiring title. ' ' ^^ Possibly the learned author has taken a too extreme view of the matter, though it must be conceded that by reason of the many jurisdictional facts and circumstances which environ sales of this character, titles derived thereunder are not always as stable as those derived under sales in equity, or even by execution.^'' The jurisdiction of probate courts to order the sale of lands of a decedent is statutory and limited, and must appear from the record, but, while no intendments will be made in its favor, the tendency is to disregard mere irregularities, errors of form and other matters not directly affecting jurisdic- tion, and all presumptions in this respect are in favor of the sale and of the validity of the title based on such proceedings.'* Probate courts are invested by law with a general jurisdic- tion in cases where real estate is to be sold for the payment of the debts of decedents, and where a court ordering a sale has jurisdiction of the subject-matter and of the proper parties, even if the proceedings are irregular and erroneous, the decree and sale under it can not be assailed in a collateral proceeding,^' 16 Freeman Void Jud. Sales, 44. v. Parker, 7 Mass. 79; Siaith v. Eiee, IT While the decrees of a probate 11 Mass. 507), and an unwarranted court, upon matters within its juris- step at the outset will sufSoe to vitiate diction are as final and eonplusive as all subsequent proceedings. Thus, if the judgments of any other court the original appointment of the ad- (Barker V. Barker, 14 Wis. 131; Cum- ministrator is void, all the subse- mings V. Cummings, 123 Mass. 271; quent proceedings are void: Gary's Dayton v. Mintzer, 22 Minn. 393), Prob. Prae. 12; Frederick v! Pac- and its records import absolute verity quette, 19 Wis. 541. (Wood V. Myrick, 16 Minn. 494; ISEeynolds v. Schmidt, 20 Wis. 374; Tibbitts V. Tilton, 24 N. H. 124), Mohr v. Tulip, 40 Wis. 66; Woods v. yet, owing to the peculiarly con- Monroe, 17 Mich. 238; Morrow v. nected character of its proceedings, Weed, 4 Iowa, 77; King v. Kent's and the interdependence of all its Heirs, 29 Ala. 542; Moffitt v. Moffitt, acts, as well as the further fact that 69 111. 641 ; Maurr v. Parrish, 26 Ohio its practice is neither in accordance St. 636; Bowen v. Bond, 80 lU. 351. with established common law nor 19 Nichols v. Mitchel, 70 HI. 258 ; chancery precedents, and hence not Wing v. Dodge, 80 HI. 564; Dayton reviewable in the light afforded by v. Mintzer, 22 Minn. 393; Farrington such precedents, they are not merely v. Wilson, 29 Wis. 383; Falkner v. voidable if want of jurisdiction ap- Guild, 10 Wis. 563. pears, but absolutely void (Sumner 512 AESTRACTS OF TITLE. [§ 492 nor can the purchaser for that reason avoid the sale.^" Until reversed, the decree confers power to sell and pass the title, how- ever erroneous it may be.^^ No class of public sales are better entitled to a just degree of protection than those of administra- tors.*^ But while this represents the prevailing sentiment it must yet be remembered that the administrator, as such, has no interest in or power over the land belonging to his intestate at his death; nor has the probate court any jurisdiction over it for any purpose whatever, but only a simple power to order its sale. This power is derived wholly from special legislative grant and its exercise is restricted to the happening of particular contingencies. These contingencies are jurisdictional and should all appear affirmatively. They consist, mainly, of the fact of. insolvency of personal estate,*' as shown by the administrator's report; notice to persons inter- ested, and a finding of the fact of insufficiency of personal assets. The record must show on its face these jurisdictional facts.** It must further be borne in mind, that the foundation of all title derived through an administrator is the fact of the death of the intestate. This must always affirmatively appear — directly and positively. Administrations are sometimes granted on pre- sumptions, but every one acts at his peril in dealing with an ad- ministrator who has been appointed npon a mere presumption that his supposed intestate is dead; and all persons are conclusively presumed to know, if the supposed intestate should subsequently turn up alive, that the grant of administration, and all acts done under it, would be absolutely void.*^ sowing V. Dodge, 80 111. 564. But of late years we may find some 21 Wing V. Dodge, 80 111. 564; departures therefrom in a few States Montgomery v. Johnson, 31 Ark. 74. where it is held that where the fact ZaGoudy V. HaU, 36 in. 313; Me- of death has been presented to and Cowan V. Poster, 33 Tex. 241. decided by a court of competent juris- 28 The lien of a creditor in probate diction the adjudication becomes con- is different from all other liens upon elusive of the fact, however erroneous land in this, that it can never be en- such adjudication may be, until set forced until the personal estate of the aside in a direct proceeding (Porter decedent has been exhausted. Garvin v. Purdy, 29 N. Y. 106) and that V. Stewart, 59 lU. 232. titles acquired under such adjudica- 24 Eoot V. McFerrin, 37 Minn. 17. tion will reinain intact, notwithstand- 26 Springer v. Shavender, 118 N. 0. ing the supposed decedent returns 33; Melia v. Simmons, 45 Wis. 334; alive. See Scott v. McNeal, 5 Wash. Thomas v. People, 107 111. 517. The 309. The leading case on this point text states the old and well established is Eoderigas v. East Biver Savings rule and the one which obtains gen- Institution, 63 N. Y. 460, but compare erally throughout the United States, the same case in 76 N. Y. 316. §493] JUDICIAL AND EXECUTION' SALES. 513 § 493. Nature and Requisites of Probate Sales. Sales in probate, though made in connection with, and as a part of the regular ad- ministration i and settlement of the decedent's estate, are yet to be regarded as special and independent proceedings. Such proceed- ings are regularly inaugurated by the filing of a petition, stating the necessary jurisdictional facts, and praying for license to sell, and it is this petition, and the recital of the statutory requisites, which gives to the court its jurisdiction to take cognizance of tjie matter and make subsequent orders in relation to same.''^ The proceeding is in the nature of an action, of which the petition is the commencement, and the order of sale the judgment, the whole forming a new, separate and independent proceeding, depending for its validity upon the sufficiency of the facts stated in the petition.*'' All the necessary features common to equitable actions, both as respects the subject-matter and the parties, must be present and affimatively appear, and as the action is adversary in its character, and in derogation of the rights of the devisees and heirs, all the parties having an interest in the property, defend- ant as well as plaintiff, must be regularly brought before the eourt.^* The filing of the petition will give the court jurisdiction of the subject-matter,^' but jurisdiction must also be obtained over the persons of the heirs and devisees in the manner prescribed by law, as well as of the subject-matter, or its order will be void.*" Hence, the proceedings must show issuance and service of citations, or appearance in the action, and a due observance of the rights of minors and others under disability, for whom special guardians must 28Pryor V. Downey, 50 CaL 389; which for many years was accepted Hall V. Chapman, 35 Ala. 553; Jack- in this country, and is founded on son V. Bobinson, 4 Wend. 436; Ethell better reason and more correct prin- V. Nichols, 1 Idaho (N. S.) 741. Mof- ciples. In that case it was held, that fitt V. Moffitt, 69 111. 641. the proceeding is im, rem and not ad- 27 The necessity for a sale is not a versary, and that the administrator matter for the administrator or ex- represents the land. ecutor to determine, but is a conclu- 29 Grayson v. Weddle, 63 Mo. 523 ; sion which the court must draw from Botsford v. O'Connor, 57 111. 79. The facts stated, and the petition must text states the rule as usually under- tumish materials for the judgment: stood, of course, jurisdiction in the Pryor V. Downey, 50 Cal. 398 ; Ethell court pronouncing a decree of sale V. Nichols, 1 Idaho (N. S.) 741. does not rest upon the petition nor 28 Morris v. Hogle, 37 111. 150; the averments of pleadings but upon Hoard v. Hoard, 41 Ala. 590; Guy the existence of substantive facts. V. Pierson, 21 Ind. 18; Fiske v. Kel- SOEiske v. Kellogg, 3 Oreg. 503; logg, 3 Oreg. 503. This is contrary Clark v. Thompson, 47 111. 25; Israel to the doctrine stated in Grignon's v. Arthur, 7 Col. 8. Lessee v. Astor, 2 How. (V. S.) 319, Warvelle Abstracts — 33 514 ' ABSTRACTS OP TITLE. [§ 493 be appointed, should they have no guardians, or if having guardians they fail to appear. ^^ The method of citation is statutory, but, as a rule, contemplates a general notice bj^ publication and a personal service on all persons interested, if within the jurisdiction of the court, and if the proofs show an insufficient service or publication, the subsequent proceedings are fatally defective. ^^ § 494. Abstract of Probate Sales. Sales by an executor or ad- ministrator may be shown in connection with the settlement of the decedent's estate, or as independent exhibits. Where a former abstract shows the death of the decedent, probate of his estate, etc., and a sale of all or a portion of the land of such decedent occurs during a subsequent examination or continuation, no necessity exists for re-exhibiting the probate proceedings, and the abstract of the sale commences with the filing of the petition. Where the examination is original, sufficient of the action of the probate court must be given to show the facts of death, application for probate, appointment of administrator, and proof of heirship, in case of intestate estates ; and of probate of will, letters testamentary and devisees, in case of testate estates. Examples of probate of wills will be found in the chapter on wills, and of the probate of intestate estates in the chapter on descents ; a probate sale' in either case would be shown somewhat as follows, making due allowance for the minor differences which must appear between testacy and in- testacy : Probate Court of Cook County, III. Probate Sale. Samuel M. Henderson, ad- ministrator of the Es- tate of Nathan Adams, deceased, vs. Petition of Samuel M. Hender- son, administrator aforesaid, filed July 6„ 1881. Represents (among other things) that ike personal estate of deceased Charles W. Adams, Henry [- is insufficient to pay claims S. Adams, Mary E. against said estate in the sum of Adams, widoiv of No- $1,000.00, besides the - cost of ad- than Adams, and ministration.^^ That deceased died Thomas R. Smith. having a claim- and title to the fol- lowing described real estate: [de- 3iPiske y. Kellogg, 3 Oreg. 503. 32Blodget v. Hitt, 29 Wis. 169; The omission to make the guardian Mohr v. Tulip, 40 Wis. 66 ; Sibley v. of the minor heirs or devisees a party. Waffle, 16 N. Y. 180 ; Botsf ord v. can not be taken advantage of in a O'Connor, 57 111. 72. coll.Ttpral proceeding: Harris v. 33 This is the vital part of the peti- Lester, 80 111. 307. tion, for a sale of land to pay debts § 494] JUDICIAL AND EXECUTION SALES. 515 scribing the same.] That said deceased left surviving Mary E. Adams, his widow, having a dower interest in his real estate; and Charles W. Adams, and Henry S. Adams, his children, his only heirs at l-aic. That Henry S. Adams is a minor and has no guar- dian. That Lot 22, Block 14, [etc.,] is now occupied hy and in the possession of Thomas R. Smith. Prays that a guardian ad litem may he appointed for said minor heir, and that the Court will order and direct said petitioner to sell the said real estate or so much as may be necessary to pay said deficiency. Sworn to July 6, 18,81. Summons issued, dated July 6„ 1881, to all of said defendants, returnable on the 3d Monday of July, 1881. Summons returned indorsed as follows:^* [In a necessary case set out the return.] Order entered July 25, 1881, appointing Chai-les Anderson guardian ad litem, for said minor defendant. Answer by said defend-ants and said minor defendant by his guardian ad litem, and reply thereto, filed July 25, 1881.^ [Note default, if any]. Decree entered Jtdy 25, 1881. (Record 2 of decrees, page 49.) [Set out the decree or the substance of same]. Administrator's report of sale filed Sept. 22, 1881.^" is never allowed until the personal diction of tlie subject-matter by the property has been exhausted; this filing of a petition, and of the per- statement is therefore a jurisdictional sons of infant defendants by the pub- fact: Foley V. McDonald, 46 Miss. lication of notice, a failure to ap- 238; Diversy v. Johnson, 93 111. 547. point a guardian ad litem, or his 34 The return of process in every failure to answer, will not defeat the action furnishes the proof of juris- jurisdiction: Gage v. Schroeder, 73 diction over the person, and in a,ll 111. 44. cases of default or non-appearance 36 It is jiot usual to abstract the of any of the parties the method of report of sale, but where the record service is invariably to be shown by is silent on vital points or no evidence a transcript of the officer's return. appears of statutory essentials, as. Unless parties are brought before the of posting notices of sale, or other court in the manner provided by necessary incidents, statements under statute, the court acquires no juris- oath in a report of sale have been diction over them. Donlin -v. Het- lield sufficient in collateral proceed- tinger, 57 111. 348. Where all parties ings : Woods v. , Monroe, 17 Mich. have appeared this becomes of minor 238. In such cases the recitals of the importance, and a brief statement of report become necessary to show the fact of service without disclosing validity, and should find appropriate the method is sufficient. mention. 3B If the court has acquired juris- 516 ABSTRACTS OF TITLE. [§ 494 Represents, that in pursuance of a decree, etc., [set out the sub- stance of the report]. Sworn to, Sept. 19, 188X. Attached to the report of sale and filed therewith, is proof of piCblication rr n I ^^l filed Julv 16, 1874, sets forth Henry Brown. ,, _. , ^ •' that on or about June 12, 1874, com- pladnant entered into a contract with said defendant to convey to him all his right, title and interest in and to certain property in McHenry Co., Ills., and that said defendant agreed to convey to him all his right, title and interest in and to Lot 30, in Block 5,, in Bowman's Subdivision of part of the East half, of South East; quarter, of North East quarter of Sec. 6, Town 39 North, Range 14, East of 3d P. M., Cook County, Ills. Prays, that said defendant be adjudged to specifically perform the said contract, and to convey to complaiiiant the said premises, and to furnish an Abstract of Title to said property showing clear and perfect title to same, and that defendant be compelled to pay to complainant the damage he has sustained by his refusal to per- form said contract, etc. (Pending.) A continuation should take up this case at this point, and show all subsequent proceedings, thus : In the Circuit Court of Cook County, Illinois. William Schafer ] t ^, ! In Chancery. „ ■ I The following proceedings have Henry Brown. , , i • _i7 • ■ t i ^o ' been had in this cause since July 18, 1874. (Chancery record 42, page 17.) Aug. 18, 1874, suit dismissed at complainant's costs for tvant of prosecution.^^ (Costs paid.) 82 An order or decree dismissing a subsequent suit for the same matter : a suit for want of prosecution, is like Porter v. Vaughan, 26 Vt. 624. a non-suit at law, and is not a bar to 532 ABSTRACTS OF TITLE. [§ 509 Where more direct reference to a former examination is deemed desirable the following form may be used in a continuation : In Circuit Court of Cook County, Ills. Case No. 12,510. William Shafer Continuing No. 8 of an exammor vs. \- Hon made iy u^ [or by any other per- Henry Brown. son] dated July 18, 1874, (and hereto attached.) Aug 18, 1874, dismissed at complainant's costs and judgment. Execution No. 2,415 issued, dated Dec. 1, 1874. The further examples given in this chapter of special proceedings in the different chancery actions, will, it is believed, furnish suffi- cient data for any exigency that may arise, while the examiner will have no difficulty in adapting them to details or differences of prac- tice in his own State.** § 510. Injunctions. An injunction is a writ, commanding or restraining the commission of some act, to serve the purposes of ' equity and good conscience. In the endless variety of cases where a plaintiff is entitled to equitable relief, if that relief consists in re- straining the commission or continuance of some act of the defen- dant, a court of equity will administer it by means of the writ of injunction. Injunctions are rarely shown in abstracts of title, and when shown have reference usually to transitory matters which affect the title only incidentally, being connected rather with the use and occupation of the land, than with -any matter which goes to the title. Temporary injunctions restraining the sale of land pending litigation ** will sometimes be found, as weU as writs restraining the action of public officers, who, under a claim of right, are proceeding illegally to impair the rights or injure the property of individuals or corporations,*® as also, to prevent a multiplicity of suits. In- junctions are granted upon motion in pursuance of the statute 83 In eonneetion with this chapter tive remedy and can not be invoked to the reader is referred to the chapter command a party to undo what he has of this work entitled "Execution and done or restrain him from doing an Judicial Sales. ' ' act which he is alleged to have al- 84 Camp V. Bates, 11 Conn. 51 ; Sid- ready done : Wangelin v. Goe, 50 111. ener v. "White, 46 Ind. 588 ; Fehrlfe v. 459. Turner, 77 Ind. 530 (reversing, 34 86 Smith v. Bangs, 15 111. 399 ; Me- Ind. 300). An injunction is a preven- Intyre v. Mclntyre, 80 111. 127; Keam § 511] ACTIONS AND PROCEEDINGS. 533 and are usually auxiliary to sqme legal proceeding then commenced or pending, and may be shown, when material to the title, either in oonneetion with such pending suits, or as independent exhibits. An injunction which has been dissolved does not call for notice. Perpetual injunctions, when relating to matters which directly con- cern title, become permanent muniments, and, of course, must be regularly shown in connection with the enjoined matter. This wiU be the case in respect to rights of way appurtenant to land ; ^ or of deeds declared to be void, when attempted to be used as evidence of title ; *'' and of judgments which have become invalidated for any reason.** A perpetual injunction to quiet title will sometimes lie when there has been no trial at law j as when the party having possession is disturbed, but not so dispossessed as "to make it the subject of an action at law.*® § 511. Ejectment. The action of ejectment is said to have origi- nated at some period uncertain between the years 1327 and 1377, and was at first a mere action of trespass to recover damages from an intruder who had usurped possession.®" A new feature, not contemplated by the original writ, was soon introduced,®^ for .the purpose of enabling the plaintiff to recover the term as well. It was originally brought only by a lessee, to recover possession of the lands from which he had been ousted, and in its strictly technical sense is still an action for the recovery of the possession of real estate, but in practice it is more generally used, both in England and the United States, to determine the title to lands,®'' to which possession attaches itself as an essential attribute. Under the statute it possesses little of its original features,®* while its general V. Ash, 27 N. J. Eq. 57. The writ is 80 Trustees of Louisville v. Gray, often employed in disputes between 1 Litt. (Ky.) 148. The writ of in- the civio authorities and individuals junction, as a provisional remedy, has relative to rights of way, occupation been abolished by the codes which sub- of streets, etc.: Pettibone v. Hamil- stitute a statutory remedy by order; ton, 40 Wis. 402 ; Knox v. Police Jury but the nature of the remedy has not of Baton Eouge, 27 La. An- 204. been changed. 86 Truehart v. Price, 2 Munf . (Va.) 90 Warvelle on Ejectment 4. Et seq. 488. 01 Supposed to be about the year 87 Bushnell v. Harford, 4 Johns. Ch. 1455. 302. 92Guyer v. Wookey, 18 111. 536. 88 Kruson v. Kruson, 1 Bibb. 93 As originally administered it de- (Ky.), 184; Brinkerhoff v. Lansing, pended upon a series of le^al fictions 4 Johns. Ch. 69 ; Gairity v. Russell, 40 and feigned issues : 3 Black. Com. Conn. 450 ; Dalton v. Lamburth, 9 ' 200. Nev. 192. 534 ABSTRACTS OP TITLE. [§ 511 scope has been so extended that it is competent to determine almost eveiy question tliat can arise in conflicting titles. It is now re- garded as a legal remedy,** to be prosecuted only by the real parties in interest,*^ having the legal title to the land,®* and can be brought only against the person in possession of the premises, if they are occupied,*^ or against a person claiming title, etc., when the premises are vacant and unoccupied. It is used> not only to determine the title of parties claiming from the same source, as well as to settle conflicting adverse titles derived from independent sources, but also by purchasers under execution and judicial sales to obtain posses- sion of the property purchased and extinguish the occupying claim- ant's rights. At common law a judgment or decree in ejectment is not re- garded as conclusive in respect to the question of title, but as a recovery of the possession without prejudice to the right, as it may afterward appear, even between the same parties,®' but wherever the common law form of the action is abolished, and same is prose- cuted by the real parties in interest, in their own names, the judg- ment is an estoppel and a valid bar to any subsequent action, unless such privilege is expressly given by statute.®® Where a recovery is had against the occupant, the judgment binds not only him, but all persons in privity of estate or possession with him,^ and con- cludes them from again litigating the same title,* but is not neces- sarily a bar to a subsequent suit, or to defenses set up in a subse- quent suit, unless the titles and defenses are precisely the same as in the first suit.^ Nor does a judgment in ejectment transfer to the successful party the title of the adverse party, but, if presented in the proper man- ner, whenever such adverse title is drawn in issue, it shuts out all proof of same, and its effect bears a closer resemblance to an ex- 94Gillett V. Neganza, 13 Wis. 472; 413; Holmes v. Carondolet, 38 Mo. Guyer v. Wookey, 18 111. 536; Joy v. 551; Smith v. Sherwood, 4 Conn. Berdell, 25 HI. 537. 276 ; Atkins v. Horde, 1 Burr. 114. 96 Hanson v. Armstrong, 22 111. 99Freem. on Judgts. § 299; Camp- 442; Thompson v. Schuyler, 2 Gilni. bell v. Hall, 16 N. Y. 575; and see ' (111.) 271. Clarkson v. Stanchfield, 57 Mo. 573. 96 Allen v. Smith, 6 Blackf. (Ind.) In most of the States a defeated 527; Morton v. Greene, 2 Neb. 441. party may have a second trial as of 97 Persons in possession merely, as right. servants or employees of the party 1 Hanson v. Armstrong, 22 111. 442; claiming adversely, are not occupants Eodgers v. Bell, 53 6a. 94; State within the meaning of the law: Chini- v. Orwig, 34 Iowa, 112. quy V. Catholic Bishop, 41 111. 148. 2 Amesti v. Castro, 49 Cal. 325. 98 Mitchell V. Robertson, 15 Ala. 3 Foster v. Evans, 51 Mo. 39. § 512] ACTIONS AND PROCEEDINGS. 535 tinguishment, than a transfer of the adverse title. The judgment awards the possession to the prevailing party, because he had the title at the commencement of the action, and because the losing party had no title, or not such a title as would authorize him to withhold the possession ; but it neither directly nor indirectly trans- fers the title.* Inasmuch as the judgment is conclusive on the rights of the parties to the subject-matter of the action and all per- sons claiming b.y, through or under them by title accruing after the commencement of the action,^ the abstract should fully show the points presented, their relation to the land, and the final disposi- tion made, which may all be easily accomplished by a full synopsis of the pleadings, the verdict,® and the judgment or decree. § 512. Quia Timet. This is an anticipatory remedy to quiet the title to lands,'' and, unlike ejectment, is brought only by the person in possession of the land, or one claiming to be the owner when the lands are unimproved or unoccupied.^ It is an ancient^ chancery remedy, but in most of the States is now a statutory action, re- sorted to for the purpose of quieting the title or the removal of a cloud,^ and equity is invoked to reach persons out of possession, who can not be compelled to defend their right at law.^" The decree, unless otherwise provided by statute, is not properly a judgment in rem, establishing title to the land, but operates in 'personam only, by restraining the defendant from asserting his claim, or by directing him to perform some duty, as to deliver up his deed to be canceled, or to execute a release, etc.^^ The possession which confers jurisdiction in such cases must have been acquired in a lawful way,^* though the complainant is 4Mahoiiey v. Middleton, 41 Cal. must be stated: Harding v. Strong, 41. 42 111. 148. 5 Sheridan v. Andrews, 3 Lans. (N. '' Frequently denominated a bill of Y.) 129; Amesti v. Castro, 49 Cal. peaoe. 325. 8 Gould V. Sternberg, 105 111. 488; 6 Where the verdict fails to specify Hai'din v. Jones, 86 lU. 313. any estate, .iudgment can not be ren- » Hardin v. Jones, 86 111. 313; Col- dered on it: Long v. Linn, 71 111. ^^^^ I" Collins, W Ohio St. 468 152; but a finding that the plaintiff is the owner of the land is suf&ciently 10 Barron v. Bobbins, 23 Mich. 42; Alton Ins. Co. v. Buckmaster, 13 111. 201. explicit as to the plaintiff's title: ji Massie v. Watts, 6 Craneh (IT. Haddock v. Haddock, 22 111. 384; g^ ^^g. y^^^e^,, ^. j,,,,^^^^ 20 when tried by the court the finding r^ex. 334. Such decrees are conclu- and judgment must be for the prem- gj^e on parties and privies: Buck- ises described in the pleadings and master v. Ryder, 12 111. 207. the character of the estate recovered 12 Hardin v. Jones, 86 111. 313. 536 ABSTBACTS OP TITLE. [§ 512 not bound to show a perfect title as against all the world,^' as is the case of one seeking to recover possession, and the title asserted must be the legal title," or at least the complainant must be the real owner.i* An equitable claimant, who is not in possession, can not invoke the aid of a court to quiet his title and remove the cloud cast upon it by other claimants.^* Where clouds or obscurations of any kind are found upon exam- ination, and no other or more convenient method can be employed to remove them, it is the duty of counsel to recommend a bill to quiet title, and for nearly every species of colorable interference with the legal title this furnishes a most efficient remedy. There is in some States a special statutory action to establish and confirm title where records have been destroyed. The general features of these actions resemble the action to quiet title above described but the scope and legal effect is broader.^' § 513. Partition. Originally, partition could only be enforced between co-parceners, but by statute in England at an early day compulsory partition was allowed between joint tenants and ten- ants in common. The right, as exercised there and in this country as well, is given only to one having an actual or constructive pos- session of the lands sought to be partitioned. Hence, unless the statute expressly provides otherwise, the right is peculiar to those having a present estate, which carries with it the right of possession, and necessarily excludes remainder-men and reversioners, who have simply an estate to vest in possession in futuro}^ It would seem, however, that remainder-men or reversioners in fee may have par- tition among themselves subject to the unexpired precedent partic- ular estate.^* Partitions occur in many titles of long standing, particularly in agricultural lands and large tracts, and as the interests of minor heirs and others under disability are frequently involved, the pro- ceedings should show affirmatively a full statutory compliance. The ISEucker v. Dooley, 49 111. 377; 17 Of this class is the so-ealled Schroeder v. Gurney, 17 N. Y. Sup. "Burnt Record Act" of Illinois, Ct. 413. which enables parties to establish 14 San Diego v. Allison, 46 Cal. 162 ; title against all persons, even though O 'Brien v. Creig, 10 Kan. 202 ; Fonda unknown, who may have or claim in- V. Sage, 48 N. T. 173. terests in the land. IB Carlisle v. Tindall, 49 Miss. 229 ; 18 Sullivan v. SulUvan, 66 N. Y. 37 ; Lee V. Buggies, 62 111. 427; Eiden Spight v. Waldron, 51 Miss. 356; V. Eiden, 41 Wis. 460. Scarborough v. Smith, 18 Kan. 399. 16 Herrington v. Williams, 31 Tex. 19 Scoville v. Hilliard, 48 111. 448. 453. § 513] ACTIONS AND PROCEEDINGS. 537 procedure is substantially the same in all the States,^'' making due allowances for minor ditferences of practice, and involves a pres- entation of the ease to a court of competent jurisdiction ; a decree defining the interests of the parties ; the appointment of a master or commissioners to execute the decree and make partition, or to inquire into the expediency of same or susceptibility of the prop- erty to partition; the report of the commissioners; and confirma- tion or final decree. All of the foregoing steps are essential, and form regular links in the chain of title. It is customary under the old chancery practice to decree mu- tual interchange of deeds, but statutory power is now generally given to confirm title in the parties in cases of partition, without this formality.*^ The decree is prima facie evidence of title in favor of each of the parties to the particular tract adjudged to him,^^ and conclusive against all the parties before the court, and their privies.*^* The decree under the statute may be final and con- elusive as evidence between the parties without the interchange of deeds, either by the parties or commissioners, as it ascertains all the rights involved, and leaves nothing to be done but to carry it into effect. It does not, however, vest in either of the co-tenants any new or additional title in respect of the respective parcels set off to each, but simply severs the unity of possession theretofore existing.^ The title by which each holds his divided share after partition, is the same as that by which his undivided interest was held prior thereto.** Where title is deduced through a decree of partition in a suit, between the heirs of a deceased owner, the adjudication, where the court has jurisdiction, finding who are the heirs at law of the deceased owner, is prima facie evidence of who were the heirs and owners of the land whose interests were allotted or decreed to be sold ; and in an action of ejectment brought by a grantee of one of the parties, or a purchaser at the sale, against a stranger to the par- tition suit, the plaintiff is not bound to produce evidence of heir- ship outside of such decree, in the absence of proof to the contrary. The doctrine that judgments and decrees are evidence only in suits between parties and privies has no application, it would seem, in 29 Under the statute the action for 22 Word v. Douthett, ii Tex. 365. partition of lands is a suit at law in 23 Wright v. Marsh, 2 G. Greene, some of the States, and not in equity, 94; Allie v. Schmitz, 17 Wis. 169; and is a substitute for the old com- Smith v. Crawford, 81 111. 296. mon law action of partition: Hopkins 24 Wade v. Deray, 50 Cal. 376. V. Medley, 97 111. 402. 26 Carter v. Day, 59 Ohio St. 96. 21 Smith V. Crawford, '81 111. 296. 538. ABSTRACTS OP TITLE. [§513. such a case.''® The synopsis which follows will serve to fairly indi- cate the method of showing a partition, and will also serve as a precedent for other chancery actions : Robert E. Jones, vs. Edtvard C. Walker, ] C. Newhouse, a minor, and James W. New- hoii^e, her guardian and next friend. In Circuit Court of Cook County, Illinois. Case No. 39,37.9. In Chancery. Bill filed Oct. 24, 1881. -., ^ ^ , r Bepresents that complain-ant and de- 1 nomas Cannon, Sarah >- , , , 7;, , t /^ ttt 77 j? ^ ^r^^.j. ,■„„ fendant Edivard C. Walker, are the owners each of an undivided one half as tenants in common of Lot 80, School Trustees' Subdivision of the North part of Section 16, Town 39 North, Range 13, east of 3d P. M., being now subdivided into sixteen lots and known as Secrist's Subdivision of said Lot SO.^'^ That defendants, Sarah C. Newhouse, a minor, and Thomas Can- non, have or claim to have, some interest in or lien upon said premises.^^ Prays for a partition and division of said premises according to the rights atuL interests of the parties in severalty, if same can be done without manifest prejudice to the owners thereof, or if the partition can not be made without such manifest prejudice, that a sale thereof be made according to law, and that the proceeds of such sale be distributed among the parties respectively entitled thereto.^^ Chatwery summons, (to Cook county) issued, dated Oct. 24, 1881, to all said defendants, returnable 3d Monday of Nov., 1881, and duly served upon all said parties.^" 26 Whitman v. Heneberry, 73 111. 109. 27 A bill in equity for partition need not make any formal deraign- nient of title but must . state the complainant's own title and the title of the defendants so that it may appear that they hold the land as cotenants. It should also show the undivided proportions belonging to each, and that they are entitled to a, partition. 28 To entitle a party to partition it is not enough for him to show frima facie title in himself; he must also make persons holding adverse titles parties to the action or show that they are not under disability and that their title is completely barred: Eoss v. Cobb, 48 111. 111. 29 The law contemplates two modes of proceeding in order to procure a division of real estate held in joint tenancy or in common: (1) By a partition of the premises without sale; and (2) where a partition can not be conveniently made, by a sale of the property. 30 Very frequently counsel desires to know the manner of service, par- ticularly where persons under disa- bility are interested, and in such ease the abstract at this point § 514] ACTIONS AND PROCEEDINGS. 539 Answer of defendant Edward C. Walker (and replication there- to) filed Dec. 8, 1881. Default of defendants, Thomas Cannon, James W. Newhouse, guardian and next friend, taken and entered Dec. 8, 1881, (chancery record 42, pg. 198) for want of plea, answer or demurrer to hill, and Louis Hunt appointed guardian ad liient for said minor defendant, Sarah A. Newhouse. Cause referred to ~W. Fenimore Cooper, Master in Chuncery, Dec. 8., 1881. Master's report, submitting proofs and exhibits, filed Feb. 20, 1882. Said master reports that the material facts averred in the hill have been fully proved, and said complainant is entitled to the relief prayed for in said hill. Decree entered, Feb. 20, 1882 (Chancery Record 42, page 406). [Here should follow the decree or every material part thereof.'^] Where the decree is interlocutory only, the subsequent proceed- ings, as the appointment and report of commissioners, offers and acceptances of parties, together with the final decree and confirma- tion should follow in regular order. "What has been given will serve to fully illustrate the method in which subsequent steps may be shown. Where a partition occurs in the history of a title counsel should carefully note that all persons shown to have any interest are prop- erly joined in the suit as parties. For this purpose reference should always be made to the proof of heirship, made in the probate of the ancestor's estate, where the title is derive,d through descent, and the names of the heirs compared with those in the partition suit. If minors are interested the proceedings will be void as to them unless they are made parties and personally served with process.** § 514. Specific Performance, Equity will enforce specific per-. formance of agreements relating to lands ; ** compel conveyance of should disclose such ' method by a was ' ' personally served ' ' is not suf - copy or summary of the returns of ficient, as a very slight omission will the officers. Where all the parties frequently vitiate the return and enter an appearance the method prevent jurisdiction from attaching, above given is sufficient, but when 31 See § 465, ' ' Judgments aiid De- there has been default, it is essen- crees, " for a precedent of a decree, tial to a correct opinion that the 32 Terrell v. Weymouth, 33 Fla. method of service upon the non-ap- 255. pearing parties be shown, and this 33 Kerfoot v. Breckenridge, 87 111. can only be done by a copy of the 205. return. Stating that defendant 540 ABSTRACTS OF TITLE. [§ 514 land purchased,'* either by the vendor or his heirs ; '* or where spe- cific performance can not be enforced, will give other adequate re- lief.®^ The essential conditions of such contracts are: That they be made by competent parties, willingly entered into ; ''' that the terms are certain and well defined ; '* be founded upon suflScient consideration ; '^ and the party seeking its performance must ful- fill his obligations under it.*" The contract must further be lawful in its character,*^ and such as a court can enforce..** As this mat- ter occurs most frequently, in connection with title, in actions grow- ing out of agreements to deed, it is advisable, that, in case per- formance has been decreed and consummated, a rather full synopsis be given of all the material parts of the pleadings; master's report, if there has been a reference; and of the final decree. If performance has been denied, and the contract or agreement is of record, the same, together with a brief notice of the action, may be shown as a special appendix. In addition to actions in the Circuit Court, it is provided in some States that when any deceased person was bound by a con- tract in writing to convey any real estate a specific performance by the personal representatives of such deceased person may be decreed in the probate court, in all cases wliere the deceased, if living, might be compelled to execute such conveyance. The jurisdiction in this event is obtained by petition setting forth the jurisdictional facts, and of notice, duly given in accordance with the statute. The petition, notice, proof of service and decree, should precede or supplement the administrator's or executor's deed whenever it is shown in the abstract.*' 34 Marling v. Marling, 94 "W. Va. 42 McClellan v. Darrah, 50 111. 79. 249. 3B Bennett v. Waller, 23 lU. 97. *3 By statutory provision in many 36 Woodward v. Harris, 2 Barb. States a certified copy of the order 439; Oliver v. Croswell, 42 HI. 41. or decree directing the execution of 37 Johnson v. Dodge, 17 111. 433; ^^^ conveyance, is required to be re- Taylor v. Merrill, 55 111. 52. corded in the registry of deeds of 38SchmeUng v. Kriesel, 45 Wis. ^^^ county in which the land is 357; Colson v. Thompson, 2 Wheat. situate, and such certified copy is 336; Gigos v. Cochran, 54 Ind. 593. '"^'^^ evidence of the correctness 89 Cheney v. Cook, 7 Wis. 413; °* *^® proceedings, and of the au- Smith V. Wood, 12 Wis. 382. ^^""^^ "^ *^« ^^««"*'"" " ^d'"^"- ^m.x TTT -r ^ ..,,„, trator to make the conveyance, while 40 N. W. Iron Co. v. Mead, 21 ,, -^ ,^ ■ , L ^ ■, .„.,_, ^, , _ ' the conveyance itself IS made effectual Wis. 474; Ishmeal v. Parker, 13 111. +„.„„„„ iv ± ^ j. x , j, ^^ ' ' • to pass the estate contracted, as fully as if the contracting party himself 41McClurken v. Detrich, 33 111. .,vere stiO living and then executed 349; Hooker v. De Palos, 28 Ohio same: E. S. Wis. Ch. 167j Minn. St. 251. Gen. Stat. Ch. 58. § 516] ACTIONS AND PROCEEDINGS. 541 §515. Redemption. Bills to redeem, though formerly of com- mon occurrence, are now rarely employed, from the fact that the fundamental law concerning mortgages has been radically changed, and the necessity of equitable interference to restore the mortgagor's rights no longer exists save in a few instances. After the law day has passed the status of the mortgagor's title is sub- stantially the same as it was before, and until foreclosed by legal methods the right to redeem by simple payment is unimpaired. Such, at least, is the recognized law in a majority of the American States. But when a deed, though in fact given as security only, is absolute on its face, and purports to convey an absolute estate in fee, the mortgagor, to assert his right of redemption and become reinvested with his former title, must still make application to a court of equity by a bill to redeem, or such other similar remedy as the statute has provided. In like manner, if a mortgagee, having entered for condition broken,** refuses to relinquish possession of the mortgaged lands after payment, or tender of payment, of the money due on the mortgage, the only remedy of the mortgagor, in States where the ancient doctrine still obtains, in order to regain the estate, is by a bill to redpem.*^ Ordinarily, however, this latter end is attained by a direct proceeding to have the mortgage can- celed. The bm, in some form, together with its attendant decree, will occasionally occur, particularly in ease of equitable mortgages, and as its effect upon title is very marked, it must be fully set forth. §516. Foreclosure. Probably no class of legal proceedings so often figures in examinations of title as actions brought to fore- close and enforce liens, and particularly is this true in the matter of the foreclosure of mortgages. A foreclosure in equity, accord- ing to ancient legal theory, is a proceeding by which the mortgagor's right of redemption in the mortgaged premises is barred or closed forever, and occurs when the mortgagor has for- feited his estate by non-payment of the money due on the mortgage at the time appointed, but still retains the equity of redemption.*^ In such case the mortgagee may call upon the mortgagor, in a court of equity, to redeem his estate presently, or, in default thereof, be forever closed or barred from any right of redemption. M This is still permitted in a few of equity will never decree a f oreelos- States, see Chap. XXII. ure until the period limited for pay- IB Parsons V. Wells, 17 Mass. 419; ment has expired: Harshaw v. Mc- Sherman v. Abtott, 18 Pick. 448. IKesson, 66 N. C. 266. 48 1 Bou. Law. Diet. 599. A court 542 ABSTRACTS OP TITLE. [§ 516 Two general methods of foreclosure are recognized in equity,*' one, called strict foreclosure, whereby the mortgagee is adjudged the absolute owner of the property; and the other, by a sale of the property under the direction of and by an officer of the court, in which case the proceeds are applied to the discharge of incumbrances, according to their priority, and the balance, if any, paid over to the mortgagor. Strict foreclosure has always been re- garded as a harsh remedy, and is not permitted in most of the States, nor is the title thus acquired as safe as when made by the ordinary foreclosure by sale. The title derived under a foreclosed mortgage is evidenced by the mortgage itself ; the proceedings and decree in foreclosure ; the certificate of sale, report, and confirmation; and finally by the selling officer's deed, all together composing one transaction. Much care should be exercised in preparing a synopsis of the proceedings, especially in regard to parties, and counsel, in passing title, should see that all persons who might legally assert any rights in relation to the mortgaged premises have been regularly brought in and properly barred or their rights adjusted. This will include not only the mortgagors, but subsequent mortgagees, judgment creditors, lien holders, and all other persons possessing legal rights or equities accruing subsequent to the lien asserted by the mortgage.** Where the foreclosure is recent, and particularly when the title under investigation is that offered at the fore- closure sale, the decree and antecedent proceedings should be set out very fully. §517. Dower. The interest which a widow possesses in the lands of her deceased husband in right of dower may, at common law, be assigned to her in severalty by the heir, without the order of a court and without a deed, for the assignment in such case is not regarded as a conveyance of title, but only the ascertain- ment of an interest which is a continuation of the estate of the husband, and which is held of him by appointment of law;*' the only effect of the assignment being to distinguish the land to which it attaches from the rest of the husband's estate. But should the heir neglect or refuse, within a reasonable time after the death of a husband, to lay off and assign to the widow such 47 There is also a method of fore- 48 Hinson v. Adrian, 86 N. C. 61; closure at law, by means of a pro- Mabury v. Euiz, 58 Cal. 11. eeeding by scire facias, but which, 49 Famsworth v. Cole, 42 Wis. 405 ; from its inadequate nature, is seldom 4 Kent. Com. 62. resorted to. § 518] ACTIONS AND PROCEEDINGS. 543 portion of the land as she may be entitled to use and occupy, or when the particular part can not be agreed upon, or when the right is disputed, recourse may be had to equity to determine the rights and apportion the interests of the parties. In some States an ejectment suit at law may be resorted to by the widow. Where the right is undisputed, dower may be assigned by the probate court, as an incident to the settlement of the husband's estate, and the award in such case should substantially appear in the synopsis of probate proceedings, or as an independent exhibit. Where the right is disputed the probate court, as a rule, has no jurisdiction, while in many States if the heir or other person shall not, within some specified period after the death of the husband,^" satisfactorily set over and assign to the surviving wife dower in and to all lands whereof by law she is or may be dowable, such surviving wife may, in the first instance, sue for and recover the same by petition in equity, against the heir or any other person claiming right or possession of said estate. In either case the interposition of commissioners is contemplated, and the report of the commissioners, together with the approval of the court, are necessary parts of the abstract of the proceed- ings. Where an allowance is made in lieu of dower a state- ment must be made of that fact, particularly when by decree the assessment of such allowance is made a lien upon the heir's land. § 518. Divorce. The dissolution of the marriage contract, though formerlj' a power exercised by the legislature, is now very generally relegated to courts of equity, and, as a rule, such courts have exclusive original jurisdiction. Until decree has actually been entered, the legal relations of the parties continue to subsist, even where the marriage is utterly void for pre-existent causes, and such decree, to be effective, must further be made during' the lifetime of both parties.*^ At common law, a divorce was only granted for pre-existent cause, and had the effect of bastardizing the issue. Under the statute divorces are granted for causes arising subsequent, as well as prior, to the marriage, and do not affect the legitimacy of the children of the marriage, except, perhaps, when the divorce is granted on the grounds of a prior mar'riage.^^ 50 Where husband and wife are 51 Beeves' Dom. Eel. 204; 1 Black. equally dowable in the lands of the Com. 440. other, these remarks will apply to 52 Consult local statutes for the both sexes. effect of divorce. 544 ABSTRACTS OF TITLE. ' [§ 518 Pending the determination of the cause the husband may be enjoined from disposing of his property in order to defeat any allowance of alimony,^^ but such injunction is never made per- petual on granting the decree.** The allowance of alimony may, however, be enforced by a sale of the husband's real estate, and by the decree the payment of same is frequently made a specific lien upon his property. When alimony or maintenance is made to become due by installments, and a sale is made to meet such installments, the title will pass subject to the lien of installments not then due unless the court shall, at the time, direct otherwise."* When property is held by one party which equitably belongs to the other, the court may compel conveyance thereof to be made, and sometimes, in case of a community of interest, a partition is necessary.*^ Lands in fee may be decreed in satisfaction of ali- mony,*' or the court may assign as such the use for life of part of the husband's estate.** It is not customary, however, to dis- turb the husband's real estate, but a definite money allowance is made instead; "indeed," says Dickey, J., "the cases are very rare where the fee in lands held by the husband should ever be required to be transferred to the wife, unless she has some special equity in that particular land, arising from the purchase having been made with her money, or from some other cause substantially placing the husband in the position as to that property equivalent to that of a trustee holding in his name for the wife, or in a posi- tion in its nature equitably equivalent thereto. In such cases, though the form of the decree may be that of adjusting the ques- tion of alimony, the substance is more in the nature of the en- forcement of a trust. " *' With respect to the effect upon lands of a decree for alimony payable in gross, the rule does not seem to be well settled.*' The volume of authority, however, holds that such a decree will operate as a lien upon the lands of the husband located in the county where the decree is rendered or docketed, and may be enforced by 68 Vanzant v. Vanzaut, 23 111. 536 ; 56 Stewartson v. Stewartson, 15 Gray v. Gray, 65 Ga. 193. 111. 145. 64 Errissmann v. Errissmaim, 25 111. 67 Wheeler v. Wheeler, 18 111. 39. 136; Keating v. Keating, 48 lU. 242. 68 Keating v. Keating, 48 111. 241; Instead of the injunction, the decree Jolliff v. JoUifE, 32 111. 527. makes the alimony a lien upon his 69 Wilson v. Wilson, 102 111. 297. land, and he may be compelled to 60 For a further discussion of this secure the lien further by mortgage. subject see § 463. 66 All these matters are the sub- ject of express statutory regulation. Consult local statutes. ■518] ACTIONS AN6 proceedings. 545 execution levied upon such lands either in the hands of the divorced husband or his grantee, where they have been conveyed after the rendition of the decree.^^ With the exceptions hereafter noted, divorce proceedings are seldom shown in abstracts of title, save as they may incumber land by the lien for alimony, and then only in brief and general terms. A divorce has another important effect on titles, however, considered in respect to dower. It is a doctrine, both of the common law and of the statute, that the dissolution of the mar- riage relation, ipso facto restores the parties, legally as well as socially, to the same relative position they occupied prior to enter- ing into same. One of the incidents, therefore, is loss of the dower 61 In Chase v. Chase, 105 Maas. 385, it was held that a judgment for alimony in the case of a divorce a vinculo, or from bed and board, cre- ates a debt of record in favor of the wife, and that she is entitled, as a creditor, to impeach a conveyance made by him with intent to defraud her. It is said by the Supreme Court of the TJnited States in Barber V. Barber, 21 How. 582, that when the court, having jurisdiction of her suit, allows the wife, from her hus- band's means, by way of alimony, a suitable maintenance and support, ' ' it becomes a judicial debt of record against the husband, and is as much a debt of record, until the decree has been recalled, as any other judgment for money is. ' ' And see, to the same efeect, Wetmore v. Wetmore, 149 N. Y. 520. In Frakes v. Brown, 2 Blackf. (Ind.) 295, the wife obtained a divorce, and a judgment for the sum of $550 as alimony. By virtue of a fieri facias issued upon this judgment, the land in question was sold, and the complainant was the purchaser. In a bill in chancery the complainant prayed that a conveyance of the land made by the husband to the defendant might be set aside as fraudulent and void. In the opinion, Blackford, J., says: "It is said that real estate is not liable on a decree for a divorce and alimony. The an- Warvelle Abstracts — 35 swer to this is that here is a judgment against the husband for a certain sum of money, rendered by a court having jurisdiction of the cause, and that every judgment of this kind, is by statute, a lien on real estate. It is not, for this court to look beyond the judgment in the ease before us. It must be considered as having the same effect as all other judgments for the payment of money, whilst it stands unreversed and remains un- satisfied." The statute by which judgments became liens on real es- tate was the general enactment: "Judgments in the Circuit Courts are hereby made liens on the real estate of the defendant or defend- ants, from the day of the rendition thereof, in the county where such judgment may be rendered." Bev. Laws Ind. 1824, 192. In Keyes v. Scanlan, 63 Wis. 345, the complaint set out that the plaintiff recovered a judgment for divorce against her husband, and that the sum of $300 alimony, and cost of suit, were ad- judged in her favor. Section 2367 of the Annotated Statutes of Wis- consin provides that, upon the fail- ure to pay the alimony adjudged to the vrife, "the court may enforce the payment thereof by execution or otherwise, as in other cases." In construing this language, the court say: "There are very satisfactory 546 ABSTRACTS OF TITLE. , [§518 right of the wife,^^ and> to show a full and complete exposition of title an appropriate mention of a divorce seems necessary in all eases where the question of dower would properly arise. This may be accomplished by a brief reference to the case as follows: Circuit Court, Cook County. Albert Gallaway, ] nm s j- ' ' ! Bill for divorce. , ^*; „ j January 20, 1881. Decree of Mary A. Gallaway. ,. i i -.i -, ' divorce rendered, with orders, inter ali^, that defendant he, and she is, forever barred of and from all right and claim of doioer in and to the lands and tenements of said complainant. Costs paid. A decree of divorce, however, has no retroactive effect except as specially provided for by statute, and therefore a wife's right of dower which had vested prior to a decree is not thereby divested unless the statute so specifically declares.^^ There is another effect produced by divorce which properly finds mention in a work of this character. As has been shown a con- veyance to husband and wife, in most of the States, produces what is known as an estate by entirety, that is, an estate similar to a joint tenancy.®* It is held that this estate is destroyed by divorce, the legal unity of the parties being broken, and that the former spouses become tenants in common.®^ In many cases wh^re a divorce is pending, prudence would sug- gest that a brief allusion be made to it, yet the commencement and pendency of such action, where the bill merely sets forth the de- fendant's lands as affecting the amount of alimony to be allowed, and neither asserts nor seeks any right in respect to them, affords no notice lis pendens sufficient to affect the rights of purchasers from such defendant. "Where, however, the biU sets up some specific reasons for saying that the divorce decree is rendered in favor of the judgment stood upon the same footing wife for the misconduct of the hus- as ordinary money judgments, and band. Consult local statutes, became a lien upon the real estate of 63 Van Cleaf v. Burns, 118 N. Y. the debtor, liable to execution, as soon 549 ; and see, Alt v. Banholzer, 39 as docketed." Minn. 511. 62Burdick v. Briggs, 11 Wis. 126; 64 Consult, § 241, supra. Rice V. Lumley, 10 Ohio St. 596 ; 66 Steltz v. Shreek, 128 N. Y. 263 ; Given v. Marr, 27 Me. 212 ; Miltmore and see, Harrer v. Wallner, 80 HI. V. Miltmore, 40 Pa. St. 151. In some 197 ; Lash v. Lash, 58 Ind. 526. States dower is preserved where the § 519] ACTIONS AND PKOCEEDINGS. 547 claim of right in the lands, or where any part of them are asked to be assigned for alimony, or any other right is asserted in respect to them or any other relief asked in regard to them, it would seem that the doctrine of lis pendens will apply; and any one who pur- chases such property during the pendency of the action will be bound by the judgment subsequently rendered therein.*^ § 619. The Right of Eminent Domain. The general subject of eminent domain has been alluded to in a former part of this book, but may be advantageously referred to at this place in connection with its practical application to the alienation of land. The right of eminent domain is defined to be the ultimate right of the sovereign power to appropriate not only the public property, but the private property of all persons within the territorial sovereignty, to public purposes,^' and though the exercise of the right usually affects only the use and enjoyment of the land and not the fee,*' it is, in effect, a perpetual right of user almost equal in dignity to the fee, and in some States it contemplates a transfer of the fee itself.*' This right is variously exercised by the State, both in its own behalf, as for the acquisition of land for State institutions or improvements, roads, canals and other works of a strictly public character, and in behalf of corporations for works and improve- ments of a quasi public character, but it is a fundamental principle that any lands of the citizen, for whatever purpose required, shall not be taken or damaged for public use, without just compensation. When land is taken under this right and in fee, it is freed from all contingent interests, liens and equities, including inchoate rights of dower, judgment liens, etc.'" In the examination of titles questions growing out of the exercise of this right are often presented where there has been an abandon- ment of the lands appropriated, or a diversion from the original purpose. Condemnations are also shown incidentally, as where rights of way are acquired over tracts which form the subject of an examination. ' 66Sapp V. Wightman, 103 111. 150; 69 NicoU v. E. E. Co., 2 Kern. Wilkinson v. Elliott, 43 Kan. 590. 121; People v. Mauran, 5 Den. 389; 67Vattel's Law of Nations, b. 1, Heyward v. Mayor of N. Y., 3 Seld. ch. 20; Charles Eiver Bridge v. War- 214; Troy v. E. E. Co., 42 Vt. 265; ren Bridge, 11 Pet. 641. Challis v. E. E. Co., 16 Kan. 17. 68 E. E. V. Burkett, 42 Ala. 83 ; 70 Moore v. Aldermen, etc., 4 Sand. Hatch V. E. E., 18 Ohio, 92; Mor- 456; affirmed, 4 Sel. 110; Watson v. ris V. Schallsville, 6 Bush (Ky.), E. E., 47 N. Y. 157. 671. 548 ABSTRACTS OP TITLE. [§ 520 § 520. Proceedings for Condemnation. Provision is made in every State for the eondemnation of land, and the compensation to be paid for or in respect of the property sought to be appro- priated or damaged, when no agreement can be affected by the par- ties interested; or in case the owner of the property is incapable of consenting; or his name or residence is unknown; or he is a non-resident of the State. The general precedure is very uniform, though the instrumen- talities used are not alike in aU the States. The proceedings gen- erally contemplate an investigation by a jury, and an assessment and award, which, when regularly accomplished and confirmed, has the effect of divesting the title of the former owner and clothing the corporation with such title as the law imports. This is effected by a petition addressed to a court of competent jurisdiction, or to a judge thereof, either in term time or vacation, setting forth, by reference, the authority in the premises of the party seeking to take or damage the property so required; the purpose for which said property is sought to be taken or damaged; a description of the property ; the names of all persons interested therein as appear- ing of record, if known, or if not known stating the fact, and if the proceedings seek to affect the property of persons under guardian- ship the guardians, or conservators of persons having conserva- tors, must also be made parties defendant, and if married women their husbands must be made parties. Persons interested whose names are unknown may be made parties by the description of the unknown owners ; the latter fact being presented by affidavit. Notice is given to the parties interested by personal or substituted service and a hearing is had either before the judge to whom the petition was addressed, or commissioners appointed by him, and when heard by the judge a jury may be impaneled to ascertain the damages. The record in the matter should substantially appear in the abstract, and must be sufficiently full to disclose all jurisdictional facts and that the power has been exercised according to the direction of law. When the proceedings are conducted by commissioners a report is made to the court granting the authority, and this report substantially embodies all that is necessary to show complete divesture, while the court roll, when such proceedings are conducted primarily before a court, or on appeal, will also serve the same end. If the proceedings are regular in form the synopsis may be considerably condensed, and when such proceedings are displayed only incidentally, for the purpose of explaining the situation of the land and not to show the title of the condemned tracts, this course is recommended. In such case brief references to the peti- §520] ACTIONS AND PROCEEDINGS. 549 tion, the appearance of parties, the verdict and the judgment of the court, are all that will be necessary. Thus: Central Bail/way Com- pany In the County Court of Cook County. Caset 1,509. Petition, filed July 1, 1903, for the vs. ^condemnation of the South 100 feet James Thompson. J of the North West quarter of Section 10, Toivn 39 North, Range 13 East of the 3d Principal Meridian, for the purposes of a railroad. Appearance of defendant entered Aug. 4^ 1903. Case heard Oct. 15, 1903 (Law Bee. 12, pg. 25). Verdict retv- dered wherein the jury finds that the petitioner do take from the owner the following property, to-wit: a strip of land 100 feet in width over and across the South side, etc. [set out the finding]. Ordered, hy the court, that petitioner have judgm,ent of con- demnation herein, amd that upon the payment by it to the County Treasurer of said county, of the sum aforesa/id, that said Central Bailway Company do enter into possession of the said land and hold the same for the purposes provided by law. It will frequently be advisable to show condemnation proceed- ings where land is taken for the opening or widening of streets, and the result is a change in the shape or dimensions of platted lands. Where provision is also made for an assessment of benefits as well as compensation for damage, it will become necessary to show the essential features of the proceeding and the extent of the lien thereby occasioned. Brief general recitals will, however, be suffi- cient. As per example : In Superior Court of Cook Co. _., ^ _^. , Case, No. 79,050. City of Chicago ] p^^.^^ ^j^^ j^^^ ^^ ^^^^^ ^^^^^_ „ , ^*' \sents that on March 28, 1906, the City Unknovm Owners. \ „ ■, s -j n-j. j ' Council of said City passed an or- dinance providing that Fairmount Avenue be opened and widened from West 28th Street to Wilson Avenue, by condemning therefor the East lOy^ feet of Lots 10, 11, 12 and 13, in Block 4 of White & Black's subdivision of the W. 1/2 of N. E. % of Sec. 16, T. 24, N. B. 13, a4d other property. Attached to petition is a copy of said ordinance, duly verified, wherein it is provided that said improvement be made by special assessment to be levied upon the property benefited. 550 ABSTRACTS OP TITLE. [§ 520 Prays that the just compensation to be made for property taken or damaged be ascertained by a jury. Feb. 14, 1907, (Law Bee. 45, pg. 276) Verdict, wherein the jury find the ju^t compensation to be paid to the owners of the East ^^Vz f^^t of said Lots to he $75.00 for each lot. Judgment on the verdict for said respective sums. Assessment roll filed June 10, 1907, wherein Lots 10, 11, 12 and 13 are each assessed the sum of $125.00. July 1, 1907, (Law Bee. 45, pg. 488) Assessment confirmed. §521. Construction of Wills. The validity of a will may be contested in equity as well as before the probate court,''^ yet this is seldom done, except on appeal, and the aid of a court of equity is usually invoked only to pass upon and construe indefinite and uncertain passages, or to direct the executor in the execution of indeterminate or insufficiently expressed trusts. Where any doubt arises as to the proper construction of a will, or as to the rights of parties thereunder, resort is usually had to a court of equity for a construction and decree for distribution, and the decree so made, so far as it relates to land, either directly or by just implication, becomes an essential muniment of title, equal in importance to the will itself, and of which, as an expression of the testator's inten- tion, it forms an integral part. 71 Duncan v. Duncan, 23 111. 264; Flinn v. Owen, 68 111. 111. CHAPTER XXIX. TAXES AND TAX TITLES. [522. Definition — Nature of taxing §532. Eights of purchasers. power. §533. Redemption. 523. Subjects of taxation. §534. Certificate of sale. 524. Lien of taxes. §535. Tax deeds. 525. Tax titles. §536. Continued. 526. Nature of tax titles. §537. Formal parts. 527. Proceedings incident to tax- §538. Effect of deed as evidence. ation. §539. Tax deed — Possession — Limita- 528. Description of land — Assessor's tion. plats. §540. Tax abstracts. 529. Sale for non-payment. §541. Special assessments. 530. Forfeitures. 531. Tax sales — Tax payer as pur- chaser. § 522. Definition — Nature and Scope of the Taxing Power. By the concurrent opinion of lawyers, judges, lexicographers, and political economists, as well as by the general and popular under- standing, taxes are burdens or charges imposed by the legislative power, upon persons or property, to raise money for public pur- poses or to accomplish some governmental end.^ This power is vested wholly in the legislature, though municipalities may exercise it by a special delegation of authority, and is unrestricted except when it is opposed to some provision of the Federal or State con- stitution.* It extends to every trade or occupation, to every object of industry, use, or enjoyment, and to every species of possession.' The right of taxation has for its foundation the principle that the citizen shall contribute to the support of the government which protects his person and property, in just proportion to the value of the property protected;* and equality, so far as is practicable. 1 Hanson v. Vernon, 27 Iowa, 28; Mitchell V. Williams, 27 Ind. 62; Blackw. Tax Tit. 1. 2 People V. Marshall, 1 Gilm. (111.) 672; Wider v. East St. Louis, 55 111. 133. 3 Curry v. Spencer, 14 Reporter, 527; DePauw v. New Albany, 22 Ind. 204; Anderson v. Kerns Drain- ing Co., 14 Ind. 199. 4Dunleith v. Eeynolds, 53 111. 45 ; In re Van Antwerp, 56 N. Y. 265. 551 552 ABSTEACTS OP TITLE. [§ 522 is its distinguishing cB.aracteristic.* While it is scarcely possible to attain absolute equality in all cases, or benefits commensurate with the burden of taxes imposed, yet the principle upon which the approximation to equality is to be maintained must be preserved inviolate in this, that all property subject to taxation shall be uni- formly assessed, according to value; a rule applicable to all taxa- tion, whether for general, local or special purposes.® The legislature, as we have seen, is the sole source and repository of the taxing power; on the other hand, the counties and other municipal divisions are mere auxiliaries of the government, estab- lished simply for the more effective administration of justice, and the power of taxation, as confided to them, is a delegated trust, and is to be strictly construed. They act, not by virtue of inherent power, but as mere agencies of the State,' the whole theory of our system of taxation being based upon the idea that it is prepared by the representatives of the people, upon due deliberation and reflec- tion, and when thus prepared for State purposes, it may be safely applied by the counties and other local agencies of the common- wealth. § 523. Subjects of Taxation. Primarily all property is subject to a just proportion of the burdens of taxation in return for the protection which the State affords, but the legislature may grant an exemption to certain classes, and such grant may be in the nature of a contract and therefore inviolable. But such grant must be expressed in clear and unmistakable language, and can not be aided by presumption or inference,* while all language creating an exemption is to be strictly construed.' An inheritance or succession tax is now levied in most of the States. Strictly considered, it is not a tax on property but upon the exercise of the right to transmit property and is not governed 6 Sherlock v. Village of Winnetka, 7 E. E. Co. v. Washington County, 60 ni. 530; Holbrook V. Dickinson, 46 30 Gratt. (Va.) 471; TT. S. v. New 111. 285; Weeks v. Milwaukee, 10 Wis. Orleans, 98, XT. S. (8 Otto) 381. 242; Attorney-General v. Plankroad 8 Minot v. E. E. Co., 18 Wall. Co., 11 Wis. 35. 206; Butler's Appeal, 73 Pa. St. 448; 6Peay v. Little Eock, 32 Ark. E. E. Co. v. Maguire, 49 Mo. 490. 9 Commissioners v. Braekenridge, 12 Kan. 114; Manf. Co. v. East Saginaw, 19 Mich. 259; Methodist Church t. 31; Chicago v. Larned, 34 111. 253 MeCormack v. Patchin, 53 Mo. 33 Weeks t. Milwaukee, 10 Wis. 242 People V. Bradley, 39 HI. 130; Ot- Chicago, 26 HI. 482. tawa V. Spencer, 40 111. 211; Attor- ney-General V. Plankroad Co., 11 Wis. 35 ; Scens v. Eacine, 10 Wis. 271. § 524] TAXES AND TAX TITLES. 553 by the usual laws relating to taxation.^" Such tax is regarded much in the light of an excise duty imposed by the State for the privilege of succeeding to property on the death of the owner,i* and action relative thereto, in cases where such taxes are imposed, is generally shown in the abstract of proceedings had in the probate court. § 524. Lien of Taxes. The lien for taxes attaches to all land subject to taxation, annually, upon some day stated, the time being different in nearly every State, and continues until the tax is paid.^* Where, for instance, the lien attaches on the first day of May, and the property is conveyed subsequent to that date, it is incumbered by the lien, and unless a special exception is made in the deed the vendor is liable upon his covenants for the payment of the tax. It is also a statutory provision in many States, that taxes assessed on personal property of the same owner becomes a lien on his real estate.^' Many examiners make no search for information concerning current taxes, yet this is one of the things of which intending pur- chasers should be apprised. Taxes are due and payable at a stated time each year and when the date of the search is after this time, and before that fixed for the sale of lands for taxes, an examination should be made to ascertain the fact of payment or non-payment. The result may be embodied in a brief note among the appendices, as follows: Note. — It does not appear from the collector's wan-ant that the taxes for the year 1903, levied on the property described in the caption [or whatever piece may be delinquent] have been paid. A general statement that the examiner finds no unpaid taxes may be embodied in the final certificate ^* but, if desired, the fact of payment may be shown affirmatively by a note similar to the foregoing, and whenever the title is complicated by adverse 10 Ee MeKennan, 25 S. D. 369, 126 12Biiikert v. "Wabash Ey. Co., 98 N. W. 611, 33 L. E. A. (N. S.) 606; 111. 205. Bodman v. Selligman, 130 Ky. 88, 113 13 Union Trust Co. v. Weber, 96 S. W. 61, 33 L. E. A. (N. S.) 592. III. 346. 11 Knowlton v. Moore, 178 XT. S. 14 See § 103. 41; Nettleton's Appeal, 76 Conn. 235, 56 Atl. 565. 554 ABSTRACTS OF TITLE. [§ 524 claims or interests it is always well to show who paid the tax. Thus: Note. — On the collector's hooks for the year 1903 the general taxes levied on the land described in the caption hereto, are marked as having teen paid May 14, 1904, by Thomas Brown. § 525. Tax Titles. A tax title is a purely technical, as contra- distinguished from a meritorious title, and depends for its validity upon a strict compliance with all the requirements of law.'* No presumption can be raised to cure radical defects in the proceed- ings, and the proof of regularity devolves on the person asserting the title.'^ If the land claimed under such a title was subject to taxation, and the proceedings under the law have been regular, and the owner has failed to redeem within the time limited by law, then the whole legal and equitable estate is vested in the purchaser, and a new and perfect title is established.^'' This results from the paramount authority of the State to levy the tax and coerce its payment by subjecting the property to sale, yet owing to the com- plexity of the procedure employed, and the careless, bungling or ignorant manner in which it is often used, as well as the many grave questions which may arise even on perfect service, a tax title is regarded as among the poorest evidences of the ownership of land, and is always taken with suspicion and viewed with jealousy. Though the end to be attained by the sale of the land, to wit, the satisfaction of the levy, is the same in every State, yet no two States seem to pursue exactly the same methods in arriving at IB Altes V. Hinekler, 36 111. 265; to be done, or prescribes the form, Whitmore v. Lamed, 70 Me. 276; time, and manner of doing anything, Charles v. Waugh, 35 lU. 315; Hewes such thing must be done, and in the V. Eeis, 40 Cal. 225; Eivers v. Thomp- form, time and maimer prescribed, or son, 43 Ala. 633. the title is invalid ; and in this respect 16 Oliver v. Bobinson, 58 Ala. 46. the statute must be strictly, if not 17 Atkins V. Hinman, 2 Gilm. (111.) literally, complied with; (2) but in 437; Smith v. Messer, 17 N. H. 420; determining what is required to be Dunlap V. Gallatin Co., 15 HI. 7 ; Jar- done, the statute must receive a rea- vis V. Peck, 19 Wis. 74; Cram v. Cot- sonable construction; and where no ting, 22 Iowa, 411. The following particular form or manner of doing a principles, or rules, for testing the thing is pointed out, any mode which validity of tax titles, appear to be effects the object with reasonable cer- f airly deducible from the reported tainty is sufficient: Hall, J., in Chan- cases: (1) Where the statute under dler v. Spear, 22 Vt. 388. which the sale is made directs a thing § 526] TAXES AND TAX TITLES. 555 this end, but whatever be the methods employed, there must at least be a valid judgment or corresponding feature ; a valid precept authorizing the sheriff, auditor, or other officer to make the sale ; " and a proper conveyance of the land from such officer or other authorized person. These are essential to the prima facie validity of the title, and none of them can be dispensed with.^' The basis of the title is, of course, a legal tax, and no title passes by a deed when the whole or any part of the tax on which it is founded was illegal.^" A sale of land for taxes frees it in the hands of the purchaser from all liens or liabilities for taxes of previous years ; *^ divests all prior liens and incumbrances ; ^^ bars the inchoate right of dower ; ^* and vests in such purchaser a new, original, and un- impeachable title in fee simple.^* Such, at least, is the accepted doctrine in a majority of the States, though there are some in which it may not prevail.** § 526. Nature of Tax Titles — ^Dependent or Independent. A tax title, though bearing some resemblance to titles derived under judicial and execution sales, differs in this, that the latter are strictly derivative titles, and dependent not only on the legality of the procedure of transfer, but upon the acts of former owners. A tax title, on the contrary, from its very nature, has nothing to do with the previous chain of title, nor does it, in any way, con- nect itself with it. The person asserting it need go no further than his tax deed, and the former title can neither assist nor prejudice him. The sale operates upon the land and not upon the title by which it had theretofore been. held. It matters not how many different interests may have been connected with such title, for if the sale has been regularly made, the land, accompanied by a new and exclusive legal title, goes to the purchaser. No covenant run- is The precept, though not techni- 22 Dunlap v. Gallatin Co., 15 111. 7 ; cally process within the constitutional Cram v. Cotting, 22 Iowa, 411. provision requiring all process to run 23 Jones v. Devore, 8 Ohio St. 430. in the name of the people, performs Local statutes may modify or change the office of an execution, and is the the doctrines stated in the text, authority under which the officer sells : 24 Turner v. Smith, 14 Wall. 553 ; I Eagan v. Connelly, 107 HI. 458. Osterberg v. Union Trust Co., 93 U. S. ISHolbrook v. Dickinson, 46 111. 424; Schaeffer v. People, 60 111. 179. 285. 2» The statute usually provides for 20Dogan V. Griffin, 51 Miss. 782; a, fee simple. It is held in several McLaughlin v. Thompson, 55 111. 219. States, however, that the grantee of a 21 Bowman v. Thompson, 36 Iowa, tax deed takes only the title and 505; Preston v. Van Gordor, 31 Iowa, estate of the former owner. See 250; Knox v. Leidgen, 23 Wis. 292. Sheaf v. Wait, 30 Vt. 735. 556 ABSTEACTS OF TITLE. [§ 526 ning with the land, nor warranty, or other incident to the title as it formerly stood, passes to the purchaser, but he takes it by a new, independent and paramount grant, which extinguishes the old title and all the equities dependent upon it.*® The statute usually pronounces the new title thus acquired a fee, but this would legally follow, even though the statute were silent, where no other estate is reserved in the deed. It must be understood, however, that the clause of the statute which provides that a conveyance resulting from a sale shall vest in the grantee an "absolute estate in fee simple" does not mean that such estate shall vest in the grantee, notwithstanding the fact that the law has not been complied with in making the sale, but refers merely to the quantity of the estate conveyed as distinguished from a lesser estate.*'' § 527. Proceedings Incident to Taxation. Where a statute re- quires a series of acts to be performed before the owners of prop- erty are properly chargeable with the tax, such acts are conditions precedent to the exercise of the power, and all the requirements of the statute must be complied with or the tax will be invalid.*' These proceedings relate to the valuation, assessment, listing, re- turns, etc., and do not, as a rule, properly come within the scope of the examiner's duties. They are not usually shown in the ab- stract, unless there has been a special direction, and when required are usually made the subject of a separate and special examination. When a tax deed is relied upon as the foundation of title, all the antecedent steps become material, and should be shown, but this is the only instance in which it is done. Mere irregularities, not going to the groundwork of the tax, do not vitiate such proceed- ings,*^ and are cured by special statutes of limitation which exist in all the States.*** The subject is too vast to open, even in a 26 Neiswanger v. Gwynne, 13 Ohio, thereto. Consult local statutes for the 74; do. 15 Ohio, 367; Boss v. Bar- effect of tax deeds and the quantity land, 1 Pet. 664; Blackwood v. Van and quality of the estate conveyed. Vliet, 30 Mich. 120. See Blackw. on 28 Hewes v. Eeis, 40 Cal. 225 ; Eiv- Tax Titles for a very elaborate dis- ers v. Thompson, 43 Ala. 633 ; Abbott eussion, p. * 535 et seq. v. Doling, 49 Mo. 302. 27 Steeple v. Downing, 60 Ind. 478. 29 E. E. Co. v. Morris, 7 Kan. 210 ; As the statute provides the title to Greene v. Lunt, 58 Me. 518 ; Parker be passed, it also, as a rule, states v. Sexton, 29 Iowa 421; Thatcher v. how that title shall be given in regard People, 79 111. 597. to prior liens and incumbrances, and 30 gee Thomas v. Stickle, 32 Iowa, sometimes "makes the sale subject 71. § 529] TAXES AND TAX TITLES. 557 general way, and the reader must be referred to technical works on the subject. § 528. Description of Land— Assessors' Plats. Where lands are listed or assessed for taxation they must ordinarily be described by reference to the government surveys, or, if divided into lots, then by reference to authenticated plats. The subject of private subdivision has already been considered in other parts of the work, but there also exists in many, perhaps all, of the States, a method of official subdivision for the more convenient and accurate pur- poses of taxation. The power to make these subdivisions is usually delegated to the assessor but is exercised, as a rule, only when land can not be otherwise described than by noting the metes and bounds. The statute is usually very explicit in regard to assessors ' plats and subdivisions, and every material requirement must be complied with to give validity to the plat or any assessment of any of the divisions thereof. The attention of the examiner is therefore called to these plats whenever they appear in the abstract, and the facts of conformity and sufficiency of description should be satisfactorily shown. Both the exact location and quantity must be manifest, and the plat will , usually be fatally insufficient so far as the subdivision of the tract for the purpose of description of its parcels for taxation is concerned, if wanting in these par- ticulars.*^ § 529. Sale for Non-payment. Taxation is regulated by statute, but the right is inherent in the government, and while summary remedies are given by law, yet taxes when assessed become a per- sonal debt, to be collected by any of the legal methods incident thereto, should the government choose to resort to such a remedy.*" Usually, however, the payment of a tax is enforced by a sale of the land upon which it has been imposed. The methods employed are too various to attempt special mention, every State providing a special procedure for this purpose, and the subject can only be treated generally. A tax is not an ordinary debt, however. It takes precedence of all other demands, and is a charge upon the prop- erty, without reference to the matter of ownership. It grows out of the perpetual lien which the State, by virtue of its sovereignty, has upon all taxable lands within its limits, and the property may SI See People v. Beat, 107 lU. 581. latin Co., 15 111. 7; Binkeit v. Ey. Co., 32 Mayor of Jonesboro v. MeKee, 98 111. 205. 2 Yerg. (Tenn.) 167; Dunlap v. Gal- 558 ABSTRACTS OF TITLE. [§ 529 be seized and sold, although there may be prior liens or incum- brances upon it, and payment enforced to the exclusion of aU other creditors.*^ Whatever be the methods employed, the proceedings are summary in their nature and the requirements of law must be strictly pursued or the whole transaction will be void.^* When special proceedings are authorized by statute, by which the estate of one man may be divested and transferred to another, the owner has a right to insist upon a strict performance of all the material requirements of the statute, especially those designed for his security, and the non-observance of which may operate to his prejudice.'^ It is not the policy of the law to deprive the citizen of his property by sales made on account of the government through its ofiSeers, who have no interest in the matter, without putting him wholly in fault in not complying with his obligations.** A synopsis of the special proceedings culminating in the sale is of the highest importance whenever the sale is relied upon as the foundation of title, but in ordinary examinations tax sales are shown rather in the nature of incumbrances on the title or charges upon the land, and it is customary to show only the fact, leaving the question of validity to be decided by other and special searches. For this purpose tax sales, when still subject to redemption or not consummated by deed, are shown after the chain and under a classi- fied head, the abstract consisting only of a brief mention of the date of sale and tax for which the sale is made, with reference to the official record ; a brief description of the premises sold ; and the name of the person to whom the certificate issued. Forfeitures to the State are treated the same as tax sales. The following will indicate the method : Tax Sales. Sale commencing Sept. 13, 18^0,. for special assessments of the City of Chicago. Record 37, page 58. Lot 5, in East half of Block 24, Canal Trustees' Subdivision of West half, and West half of North East quarter of Section SSEeinhart v. Schuyler, 2 Gilm. Biggins, 96 111. 481; Abbott v. Dol (111.) 473; Dunlap v. Gallatin Co., ing, 49 Mo. 302. 15 111. 7. 35 Marah v. CSiestnut, 14 111. 223 ; 34 Charles v. Waugh, 35 111. 315; Holbrook v. Dickinson, 46 111. 285. Gaboon v. Coe, 57 N. H. 556; Clarke 38 Rivers v. Thompson, 43 Ala. 633. V. Rowan, 53 Ala. 401; People v. The lien of taxes is purely legal in § 530] TAXES AND TAX TITLES. 559 17, Town 39 NortA, Range 14, East. Sold Oct. 15, 188,0, (War- rant No. 4,382, for macadamizing, etc., W. Jackson Street) to Asahel Gage for $8.40. Sale Commencing Aug. 2, 1875, for State and Co^mty taxes of 18/4. Record 22, page 201. Lots 13 and 14 in Block 10, of Rockwell's Addition to Brock- ton. Sold Sept. 25, 1875, for State and Comity taxes, 1874, to Asahel Gage, for $51.95. Where there are forfeitures as well as sales these are shown in much the same manner. § 530. Forfeitures. The class of forfeitures to which this sec- tion alludes, is based upon the principle, "that every owner of lands hold his estate upon the implied condition that he will furnish a list of his taxable estate, and promptly pay his share of the com- mon burdens assessed against the entire community ; and if he omits to comply with the condition, and his estate is offered at public vendue, and no purchaser can be found for it, the title is trans- ferred from the owner to the State, the latter being always ready to bid for the land, when no other bidder appears."''' The term "forfeit" is not always used, but the effect in every State, where the property passes to the State in default of purchasers, is a for- feiture. A forfeiture operates to divest the title of the original owner, though ample time is always allowed for redemption, and purchasers of forfeited lands, where the law has been strictly com- plied with, will acquire a valid title from the State. A note of forfeiture is sufficiently expressed as follows: Forfeiture. Sale commencing Sept. 13, 1880, for State and County taxes of 1879. Record 23, page 205. Lot 5, of Block 10, vn Williams' Subdivision of the North East quarter of Section 16, Town 23 North, Range 14 East of its character, the creature of the and in no other manner : People v. statute, not arising upon contract. Biggins, 96 III. 481. and can be enforced in the mode 3'' Blackw. Tax Tit. * 460 ; See provided by the law of its creation, Olery v. Hinman, 11 111. 430. 560 ABSTRACTS OF TITLE. [§ 530 the 3d P M., tvas forfeited to the State of Illinois, Oct. 15, 1830, for the non-payment of State and County taxes of 1879. Amount, ^55.00. If desired the name of the person charged with the assessment on the collector's books may be also shown. This does not seem to be material, but many examiners prefer to show the assessmeijt. When such is the case add to the foregoing the following : Said Lot assessed in the «ame of Thomus Brown. § 531. Tax Sales — Tax Payer as Purchaser. A very erroneous opinion has gained currency in many localities that, a purchase by one owning, or interested in, the land sold for taxes strengthens a title previously acquired, and hence it is not uncommon to find tax deeds to persons already possessing legal interests in the property. Such deeds, however, are mere nullities, for it is a proposition be- 3'ond dispute that one whose duty it is to pay a tax can not be a purchaser of property offered for sale for the purpose of collect- ing it." The payment of the money, in such case, will be regarded only as a payment of the tax, and not as a purchase of the prop- erty ; '* and the deed, at best, would evidence nothing more than that the tax on which it was founded was satisfied, the lien of the State discharged, and the estate restored from the sale, but no new title would be created or transferred by it.*" Nor does this pi-inciple apply only where there is a direct legal obligation. The party against whom a tax is assessed is directly liable for the tax, as is also a purchaser,*^ or lessee,*^ who has con- ti-acted to pay same, and in these cases, where there is a direct legal obligation, there can be no question about the duty. But other parties may acquire an interest in real estate who are not 38 Douglas V. Dangerfield, 10 Ohio, 40 Gould v. Day, 4 Otto (TJ. S.) 152; Busch v. Huston, 755 111. 343; 405. A tax deed, however, is al- Barton v. Moss, 33 111. 50; Dunn v. ways color of title anfl where pos- Snell, 74 Me. 22; Christy v. Fisher, session is taken under it and such 58 Gal. 256; Williamson v. Eussell, possession is continued for the statu- 18 W. Va. 612; Cooley on Taxation, tory period of limitation a title may 346 ; Blaokw. on Tax Tit. 400. be predicated upon it. 39Baily v. Doolittle, 24 111. 577; 41 Fitzgerald v. Spain, 30 Ark. Ballame v. Forsythe, 13 How. (TJ. S.) 334. 18; Glaney v. Elliott, 14 HI. 456; 42 Waggoner v. McLoughlin, 33 Middleton Bank v. Bacharach, 46 Ark. 201. Conn. 513 ; Johnston v. Smith, 70 Ala. 108. §532] TAXES AND TAX TITLES. 561 directly responsible for the taxes, and who enter into no contract in respect to them, yet may be so situated that it is their duty to pay them. For instance, a purchaser of the property or of the equity of redemption subject to a tax lien may be compelled to pay the taxes in order to protect his own title. Such a party can not ordinarily be a purchaser of a tax title. So, too, a mortgagee is under no legal obligation to pay the taxes, and yet he may be compelled to pay them in order to protect his mortgage. Although there may be cases which hold that under certain circumstances he may purchase a tax title, yet the general rule is that he can not ; *^ for the reason that it is not necessary for him to do so. He may pay the tax and the amount paid will be added to his debt, and he will hold the whole property as security therefor. In such a case it is unnecessary to complicate the legal title with a tax deed, and the law will not allow it to be done. Nor does it vary the ease in principle if the person paying the tax oiwns less than the whole equity. Wheth- er his interest be worth much or little, whether he owns the whole or a part, can make no difference. In either case if his interest is worth protecting he will pay the tax, and in neither case can he purchase a tax title. All such persons are incapable of purchasing at a tax sale, and deeds to them convey no title.** § 532. Rights of Purchasers. A purchaser at tax sale is not af- fected by any matter pertaining to title not connected with the tax proceedings, nor is he charged with notice of any facts ex- traneous thereto. A sale for taxes is not subject to the rule that one who purchases during the pendency of a suit is held bound by the decree that may be made therein,** for the lis pendens only relates to and affects voluntary alienations by the defendant pend- ing the action. It has nothing to do with parties asserting rights independent of and adverse to that of the defendant, and where one acquires title under a sale for taxes he is not bound by the foreclosure of a mortgage given by a former owner of the land, and his title wilLprevail against that of the purchaser at the fore- closure sale.*® It is true that a purchaser at a tax sale comes 43 Williams v. Townsend, 31 N. T. one who holds a quitclaim deed to 411; Sturdevant v. Mather, 20 Wis. property previously conveyed may 576. purchase same at tax sale: Curtis MMiddleton Sav. Bank v. Bach- v. Smith, 42 Iowa, 665. arach, 46 Conn. 513; Jacks v. Dyer, 45 Wright v. Walker, 30 Ark. 44. 31 Ark. 344. Possession under a 46 Becker v. Howard, 6 Thomp. & deed which conveys no interest will C. (N. Y.) 603; 4 Hun (N. T.), 359. not disqualify the grantee to purchase This is sometimes denied. See Smith the property when sold for taxes. So v. Lewis, 2 West Va. 39. Warvelle Ahstracta — 36 562 ABSTRACTS OF TITLE. [§ 532 strictly and rigidly within the rule of caveat emptor,*''' but this has reference only to the methods by which he acquires title, and not to antecedent or extraneous matters. § 533. Redemption. The subject of redemption from tax sales bears a strong analogy to the satisfaction and discharge of judg- ments, and raises many of the same questions in regard to the method of treatment in the abstract. It is not the usual custom of examiners to make special mention of a redemption, as the cer- tificate of the abstract is presumed to be a sufficient statement of the condition of the title at its date. But in view of the current of authority, which ever inclines to limit the examiner's liability to the actual occurrences during the period covered by his search, irrespective of subsisting but previously contracted liens, it would seem a far more satisfactory practice, and one tending to greater certainty in arriving at conclusions or passing opinions, to show' the extinguishment of any and every lien which former examina- tions may have disclosed, except, perhaps, where this has been effected by the statute of limitations. From two to three years is the period ordinarily allowed in which the owner or interested party may discharge the obligation imposed by the levy of the tax and relieve the land from its burden. During this period the purchaser has a contingent interest, which, after the day for redemption has passed, may ripen into an abso- lute title. This contingency may be defeated by payment, and when such is the case, it will often become as proper a matter for special mention as a release or discharge of a mortgage. Where the sale and redemption both occur during the period included and covered by the dates of the examination the whole transac- tion may with propriety be wholly disregarded, since it only amounts to a payment of the tax ; but where a former examination discloses a sale, and a continuation is made during the redemption period, the lien in the meantime having been extinguished, such fact should affirmatively appear, and should the abstract be silent in this particular, a requisition for further information should be made by counsel before passing the title. Many examiners show redemptions by a marginal note on the original abstract of the tax sale, and most attorneys prefer this method as it effectually disposes of the question the moment it is raised. §534. Certificate of Sale. Certificates of sale are rarely re- corded, though they undoubtedly vest in the purchaser an equit- 47 Hamilton t. Valiant, 30 Md. 139. §535] TAXES AND TAX TITLES. 563 able interest in the land which entitles him to be clothed with the legal title at any time after the period of redemption has expired, and before his right has been barred by the statute of limitation.** The right to record such certificates, and assignments thereof** when such assignments are duly sealed, attested by witnesses, and acknowledged in conformity to law, is often given by statute, and when recorded in the proper county they have the same effect as other records therein. When foimd upon the records they are shown, if prior to deed, as a lien or charge upon the land and after the course of title has been exhibited; when followed by deed they are briefly noted in connection with that instrument. A sjTiopsis of a certificate of sale simply recites the facts stated therein. The form will vary as the certificate may be made in pursuance of a judgment, as in Illinois ; or by the county treasurer under the law, without judgment, as in Wisconsin. An example of the latter form is given. The reader is referred to illustrations of sheriff's certificates in other parts of the work. Hiiffh McDermott, County Treasurer of Kenosha Coun- I ty, Wis., to William Goffe. Tax Certificate. Dated, etc Sadd Treasurer certifies that he did, at puhlic auction, pwrsw- ant to notice given as iy law required, on May 1, 1883, sell to Wil- liam Goffe, (or the county of Kenosha,) the following described real estate [describing same] for $5.50, heing the amount due for taxes, interest amd charges on said lands for the year 1882, and that said WiUiam Goffe (or assigns) will he entitled to a deed of same in three years from date, unless sooner redeemed according to law. § 635. Tax Deeds. Neither the legal nor the equitable title to lands sold for non-payment of taxes vests in the purchaser until the execution and delivery of a tax deed." There is, however, some confusion with respect to the legal status of a tax deed. Thus, it has frequently been held that the deed does not operate ipso facto to 48 Blaokw. on Tax Titles, * 372. 50 Stephens v. Holmes, 26 Ark. 49 The assignee of a tax certificate 48 ; Ins. Co. v. Scales, 27 Wis. 640 ; holds it subject to all the infirmities Bracket v. Gilmore, 15 Minn. 245; by which it would have been afEeeted Lake v. Gray, 35 Iowa, 44. in the hands of the tax purchaser: Light V. West, 42 Iowa, 138; Besore v. Dosh, 43 Iowa, 211. 564 ABSTRACTS OF TITLE. [§ 535 transfer the title of the owner as in ordinary deeds between individ- uals, but it is the last act of a series of proceedings upon the regu- larity of which it depends for its character and effect. It is not title in itself, nor, unless aided by statute, even evidence of it. Its re- citals bind no one, and it creates no estoppel upon the former own- er.^i The mere production of the deed, in the absence of statutory aid, creates no presumption in its favor until all the anterior pro- ceedings prescribed by law have been affirmatively shown to have been complied with, when it becomes conclusive evidence of title according to its extent and purport. The foregoing doctrine, which long obtained in this country, is based upon the policy that it is better that the purchaser should lose the small amount of his bid rather than the owner should forfeit a valuable estate, where the proceedings show irregularity or illegality,*^ and the burden of proving title under tax deeds has been thrown upon him who asserts such title.*^ § 536. Continued — Statutory Modifications. Though the rule of the common law, that he who affirms the existence of a material fact must prove it, was for many years applied to sales for taxes in all its unbending rigidity, until the astuteness of judicial refine- ment had rendered almost inoperative all legislation providing for such sales, a marked change is now apparent in many States. Strin- gent legislation has endeavored to counteract the tendency of judi- cial refinement, by declaring the operation and effect of tax deeds, and such conveyances in a majority of the States, when formal and duly executed, are now taken as prima facie or presumptive evi- dence of the regularity of all proceedings, from the listing or valu- ation of the land up to the issuance of the deeds. A few States have gone so far as to declare such deeds conclusive evidence of every matter or fact required by law to make a valid sale and vest title in the purchaser, except the facts of exemption, payment, and redemption, and as to the non-existence of those facts it is made prinin facie evidence.** This doctrine, however, has been expressly repudiated by the courts as an unconstitutional confiscation of prop- erty, and the rule has been announced that the legislature can make a tax deed conclusive evidence of the regularity of prior proceedings only as to non-essentials or matters of routine which rest in mere SlBlackw. on Tax Titles, *364; 53 Lyon v. Hunt, 11 Ala. 295; Jackson v. Esty, 7 Wend. 148. Keane v. Cannonoran, 21 Cal. 291. 62 Blackw. on Tax Titles, * 68 ; 64 See Gwynne v. Neiswanger, 18 Denning v. Smith, 3 Johns. Oh. 344; Ohio, 400; Allen v. Armstrong, 16 Jackson v. Morse, 18 Johns. 442. Iowa, 508. § 536] TAXES AND TAX TITLES. 565 expediency.*^ But the owner of property can not be precluded from showing the invalidity of a tax deed thereto by proving the omission of any act essential to the due assessment of the same, the levy of a tax thereon, and the sale thereof on that account. As to the pe:i^formance of these acts, and the facts necessary to consti- tute them, the deed can only be made prima facie evidence.*^ It would seem to be well settled, however, that the legislature has the power to make a tax deed prima facie evidence of material facts upon which the right to sell and convey depends, and when this has been done it has the effect to entirely change the burden of proof, relieving the purchaser therefrom and imposing it upon the person who attempts to controvert the deed ; *'' but to have this ef- fect the deed must be regular on its face ** and display an apparent conformity to law. Whenever it is shown that any essential particu- lar in the anterior proceedings has been irregular, the authorities are quite harmonious in declaring its prima facie character to be lost,*' and when the prima facie character, as established by statute, is overthrown, the common law principles stated in the preceding section, at once attach, and the person asserting the title must prove by satisfactory evidence the regularity of the proceedings.^" The law declaring a tax deed prima facie evidence of title, does not dis- pense with the statutory requirements which precede the sale, but only shifts the burden of proof from the party claiming under the deed to the party impeaching it.®^ A valid tax deed carries with it a prima facie right of possession. Where the land is vacant or unoccupied the constructive possession is deemed to be in the holder of the tax title.^^ But a tax deed has no more force or effect for procuring possession than any other 66 Acts which need not have been Hart v. Smith, 44 Wis. 213; Lacey required in the first place — as the v. Davis, 4 Mich. 140 j Washington afadavit of the sheriff to the delin- v. Hasp, 43 Kan. 324; Taylor v. quent list — and which the legislature Wright, 121 Jll. 455. may by a curative act excuse when 58 Taylor v. B. E. Co., 45 Minn, omitted: Marx v. Hawthorn, 12 67; Merriam v. Dovey, 25 Neb. 618. Saw. (G. Ct.) 374. 69 Sibley v. Smith, 2 Mich. 486; , 68 Allen V. Armstrong, 16 Iowa, Graves v. Bruen, 11 111. 431; Tumey 508; MaeCready v. Sexton, 29 Iowa, v. Yeoman, 16 Ohio, 24; Eaybum v. ,356; Ealey v. Guinn, 76 Mo. 263; Kuhl, 10 Iowa, 92; Thompson v. Callanan v. Hurley, 93 XT. S. 387 ; Ware, 43 Iowa, 455. Steeple v. Dowing, 65 Ind. 501. 60 Hnrd v. Brisner, 3 Wash. 1. 67Biscoe V. Coulter, 18 Ark. 423; 61 Williams v. Kirtland, 13 Wall. 'Grady y'. Bamishel, 23 Cal. 287; 306. Watson V. Atwood, 25 Conn. 313; 62Moingona Coal Co. v. Blair, 51 Millikan V. Patterson, 91 Ind. 515; Iowa, 447, 1 N. W. 768. Clark f. Conner, 28 Iowa, 311; 566 ABSTRACTS OP TITLE. [§ 536 form of conveyance and the holder thereof, who finds the land occu- pied, must, if the occupant refuses to surrender possession, resort to the same legal remedies to acquire same as the holder of any other deed would employ.*^ The rules which govern the construction of ordinary conveyances apply with practically equal force to tax deeds. Thus, a tax deed to a deceased person, not withstanding the words "his heirs and assigns, ' ' follow the name of such deceased grantee, will not operate to vest title in the heirs. Such a deed is void as a conveyance.** , § 537. Formal Parts. The form and substance of tax deeds are usually prescribed by statute, in which case a strict conformity is required or the deed will be void,®' though if defective a new deed will usually issue to the person entitled,®* and the deed will not be avoided for slight irregularities or variances from the statutory form.®' The ordinary incidents of deeds attach to conveyances of land sold for taxes and in most respects they stand upon the same footing as deeds between indiyjduals.®* To attempt an enumeration of the special distinctive features, however, would be to refer to the statutes of every State in the Union, and not alone to one but to many, as few subjects have been so harassed by legislative tinkering, both as to the methods of procedure and its evidence, as the sale of land for taxes. But inasmuch as the deed does not derive its valid- ity from its capacity as an independent conveyance to transfer the estate described in it, but from the existence of a power and compli- ance with prescribed conditions, it should show upon its face a proper exercise of the power in pursuance of which it purports to have been executed.®' This rule is of uniform operation every- where. All the recitals provided by law, which go to show full eSHandlin v. Lumber Co., 47 La. eSBlakely v. Bestor, 13 III. 708. Ann. 401, 16 So. 955; Steltz v. Mor- The construction of a tax deed in gan, 16 Idaho, 368, 101 Pae. 1057, respect to the description of the 28 L. E. A. (N. S.) 398. land conveyed must be the same 64 Baker v. Lane, 82 Kan. 715, 109 as if such description were used in Pac. 182, 28 L. R. A. (N. S.) 405. a deed between private individu- 66 Chandler v. Spear, 22 Vt. 388; als. The doctrine of strict con- Boardman v. Bourne, 20 Iowa, 134; struetion, as applied to the execu- Kruger v. Knob, 22 Wis. 429. The tion of naked statutory powers, has form in such case becomes substance, no application in such case: Blakely and must be strictly pursued: At- v. Bestor, 13 111. 708. kins V. Kinman, 20 Wend. 249. 69 Blackw. Tax Tit. * 368 ; Jackson 66Pinley v. Brown, 22 Iowa, 538; v. Roberts, 11 Wend. 425; Tolraan v. Woodman v. Clapp, 21 Wis. 350. Emerson, 4 Pick. 160. 67 Bowman v. Cockerill, 6 Kan. 311. §537] TAXES AND TAX TITLES. 567 compliance, are necessary and integral parts, and the failure to re- cite any one of the prerequisites to a valid sale will raise a presump- tion that the omitted requirement was not complied with.'" The execution and authentication are purely matters of local stat- utory regulation. But where the statute directs the particular man- ner and form of execution and acknowledgment a strict conformity to statute is necessary to ensuire validity. Hence, in the abstract of a tax deed special care should be observed by the examiner and any deviation from the statutory requirements should be noted. The officer making the deed acts under a naked statutory power and un- less he complys with all of the provisions of the statute the deed is void upon its face.'^ The later forms of tax deeds prescribed by statute are very short and concise, and the recitals confined to a few material points, while their legal effect and operation is expressly defined as in case of deeds between individuals after statutory forms. The execution of the deed is confided to the county clerk, or other officer having the custody of the tax records. A statutory deed as prescribed in Illi- nois and many of the "Western States may be shown in the abstract, as follows : E. F. C. Klokke, " County ] Tax Deed. Clerk of Cook Co., III., Dated, etc. to I. « # Hiram Johnson. Doc. 203,07.3. Recites, that at a public sale of real estate for non-payment of taxes, made in the county aforesaid on Oct. 12, 1876, the following described real estate was sold, to- 70 Long V. Burnett, 13 Iowa, 29; Lain v. Cook, 15 Wis. 446; Large v. Fisher, 49 Mo. 307. A ministerial officer, in making a return or recital as to how he executed a power, must set out the facts and the manner in which he performed the acts, and let the court determine whether they com- ply with or are in accordance with the law. The sale of property for taxes is an ex parte proceeding. The officer acts at his own peril, and must per- form every prerequisite required by statute before the title of a citizen to his property can be taken from him. The deed must show affirmatively that the law has been complied with in all particulars: Spurlock v. Allen, 49 Mo. 178; Abbott v. Doling, 49 Mo. 302; Annan v. Baker, 49 N. H. 161. 71 Eeid V. Merriam, 15 Neb. 323, 18 N. W. 137; Gabe v. Boot, 93 Ind. 256; Mathews v. Blake, 16 Wyo. 116, 92 Pac. 242. In the latter ease the deed was not acknowledged and this was held to be a fatal defect. 72 Where the county is the grantor, it must be named as such, while the procurement of the county clerk may be shown in the execution. 568 ABSTRACTS OF TITLE. [§ 537 wit: [describing same] and same not having been redeemed from said sale, and it appearing that the holder of the certificate of pur- chase has com,pUed with the law necessary to entitle him to a deed of saM real estate: Therefore, said county cleric, in consideration of the premises and by virtue of the statute, grants and conveys to said second party the real estate hereinbefore described, subject to any redemption pro- vided 'by law. Signed by said clerk, and the seal of the County Court affixed. Acknowledgment. Inasmuch as the deed is statutory and can only be in one form, a shorter method is sometimes adopted, which, after the caption and formal parts relating to dates and record, would read somewhat in this manner: Conveys (with other property) Lot 56, in Block 2, in Canal Trusftees' Subdivision of the south east quarter of Section 87, T. 39, N. R. 14 E. of 3d P. M., Cook Co.^ Ills., reciting sale of same Oct. 12, 1895, for non-payment of taxes. Where the deed is of long standing, and particularly where the tax title has merged into the original title, this method is preferable. § 538. Effect of Deed as Evidence. The form last considered, and which wiU not vary materially from that now in general use where a statutory form is prescribed, is very meager in recitals. Its effect as evidence is dependent on the statute, which has made it prima facie evidence, in all controversies and suits in relation to the right of the purchaser, or those claiming under him, to the propertj^ thereby conveyed, of the following facts : That the prop- erty conveyed was subject to taxation at the time the same was assessed, and had been listed and assessed in the time and manner required by law; that the taxes or assessments were not paid at any time before the sale ; that the property had not been redeemed from the sale at the date of the deed ; that it was advertised for sale in the manner and for the length of time required by law ; that it was sold for taxes or special assessments, as stated in the deed; that the grantee in the deed was the purchaser or assignee of the purchaser ; that the sale was conducted in the manner required by law." 73 E. S. 111. 1874, Chap. 120; E. S. Wis. 1878, Chap. 50, and see E. S. Ind. 1876, chap. 123. §538] TAXES AND TAX TITLES. 569 In addition, any judgment ''* for the sale of real estate for delin- quent taxes estops all parties from raising any objections thereto or to a tax title based thereon, which existed at or before the rendi- tion of such judgment, and could have been presented as a defense to the application for such judgment in the court wherein the same was rendered, and as to all such questions the judgment itself is declared to be conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or assess- ment has been paid, or the property was not liable to the tax or assessment. The effect of statutes similar to the foregoing and of such statutes as have been enacted to quiet tax titles and secure the property con- veyed by tax deeds, has been to give stability to such deeds and re- move the chances of reinvesture in the original owner. Yet even in the face of such statutes the courts still cling to the former doc- trines in this respect and critically inspect tax deeds when offered in support of title,''* and where a deed is void upon its face, as when there is a want of power on the part of the officer, or where there is included in the amount of the sale that for which the land could not be sold, and which is entirely unauthorized, it has been held not to divest the owner of his title to the land, even though the special limitation of the statute has run in favor of such deed.'® In respect to the description of the land conveyed, a tax deed is gov- erned by the same rules of construction as other deeds." In this connection the attention of counsel is directed to a practice often observable where spirited biddings attend tax sales. In some States it is provided that the officer conducting the sale shall sell so much of the land as a purchaser is willing to bid the amount of the tax upon. This has resulted in sales of infinitesimal portions and it is not uncommon to meet with tax deeds of the east vigin- tillionth of a tract. These deeds are practically nullities, and do not even cast a cloud upon the title. The portion of the lot which such a deed purports to convey can neither be found nor identified and is not susceptible of a possession of any kind. Hence, as the 74 No application for judgment is 23 Ind. 32; and see Beekman v. required in many States, but the Bigham, 1 Held. (N. T.) 366; Mc- eouuty treasurer, or some other desig- Cready v. Sexton, 39 Iowa, 356; nated officer, is given power to sell Cooley on Taxation, 356; Blackw. on lands returned as delinquent after no- Tax Tit. 79. tice ha^ been given. 76 Annan v. Baker, 49 N. H. 161; 75 A statute which makes a tax deed Knox v. Cleveland, 13 Wis. 245. But conclusive evidence, is in derogation see Dalton v. Lucas, 63 111. 337. of the common law and must be 77 Blakely v. Bestor, 13 111. 708. strictly construed : Gavin v. Shuman, 570 ABSTRACTS OP TITLE. [§538 land described has no practical existence the deed which purports to convey it really conveys nothing. Such a deed has been held void on its fabe." In a majority of the States application for a tax deed must be made within a stated time, usually one year after the expiration of the redemption period. In the event that the deed shall not be taken out and recorded within the time allowed therefor both the certificate and the sale upon which it is based becomes void.™ It would seem, therefore, that where a deed is found upon record after the time so allowed, it may safely be disregarded in making an opinion of title, the invalidity being apparent on its face. But if the holder of the certificate has been prevented from obtaining a deed within the prescribed period, either by injunction or refusal of the proper officers to issue same, and these facts are recited in a deed afterward issued, then the time during which he has been so prevented may be excluded from the computation.*' § 539. Tax Deed — Possession — Limitation. Eadical defects in tax sales and resulting conveyances may be remedied in many of the States, by compliance with curative statutes which provide, that where purchasers unite possession and payment of taxes for a defi- nite period to the tax deed an unimpeachable title inures to such purchaser; and this, even though on its face the deed shows that the sale was irregular, if there is nothing to charge the purchaser with actual bad faith.*^ Good faith is always presumed until the contrary is made to appear, and is imported by the deed itself.'* Where the holder of the tax title has become entitled to the protec- tion of the statute, all questions as to the regularity of the tax pro- ceedings are set at rest, except, perhaps, those which concern the power and jurisdiction of the taxing officers or the liability of the land to taxation. The tax deed then becomes conclusive evidence that the taxes were properly levied, and that all the requirements of law were complied with.'^ But where a deed discloses on its face that it is illegal, and has been executed in violation of law, a statute of limitation can not be brought in to aid its validity." The con- 78 Petty v. Beers, 224 HI. 129. 82 Dickenson v. Breeden, 30 Bl. 279. 79 Gage V. Eeid, 118 111. 35; Fuller 83 Knox v. Cleveland, 13 Wis. 245. Y. Shedd, 161 111. 496. 84 Shoat v. Walker, 6 Kan. ' 65. 80 These matters are statutory. In this ease the law under which the Consult local statutes. deed was issued had been repealed 81 Dalton v. Lucas, 63 111. 337. prior to such issue : Compare Dalton Compare Bowman v. Wettig, 39 111. v. Lucas, 63 111. 337. 416; and see Geekie v. Kirby Car- penter Co., 9 Eeporter, 37. § 541] TAXES AND TAX TITLES. 571 stitutionality of special statutes providing for a shorter period than that provided in the general statute of limitations has been the subject of much debate, and is not yet a settled question ; but there can be no doubt that a defective deed, though invalid as a convey- ance, will yet be admissible as color of title, and when f oUowed by actual adverse possession will set the statute in operation.'* The validity of a tax deed, in some States, may be impeached by a failure of the claimant to secure and hold possession of the land under the tax deed. In these States actual or constructive possession of the land for a definite period is necessary to perfect title.'® An interruption of the mere constructive possession cre- ated by recording the tax deed, by the actual and exclusive posses- sion of the owner of the record title, if continued for the statutory period, without action on the part of the tax title clainiant, extin- guishes the tax title and all rights under the tax deed.*'' § 540. Tax Abstracts. Whenever a tax deed is relied on as a foimdation of title which is independent of and adverse to all other titles, particularly that of the person who was last seized of the fee, a full exposition of the method by which the right was acquired is an essential preliminary to demonstrate the validity of all suc- ceeding conveyances. The tax deed, unaided by statute, is not suffi- cient to establish title, though it may be prima facie evidence of such, but the prior steps should be shown and all the requisites necessary to a complete and perfect title under the statute must be fully and succinctly stated." An abstract of a tax title may con- sist of a synopsis of the proceedings from the listing or assessment to the sale and issuance of deed, with all the material matters copied in full ; or if so directed, a narrative statement of what was done, . the times, manner, place, etc. ; but all sufficiently explicit to enable counsel to see that every material step has been taken, and that in a proper and legal manner. % 641. Special Assessments. In addition to the ordinary charges annually imposed by the State, and which are usually designated as taxes, the examiner must also search for what are generally termed •SDUlingham v. Brown, 38 Ala. Comstock, 140 Wis. 427, 122 N. W. 313; Chapman v. Templeton, 53 Mo. 285, 28 L. E. A. (N. 8.) 201. 463; Washburn v. Cutler, 17 Minn. 88 Mr. Blackwell in his work on 361; Wing v. Hall, 44 Vt. 118. Tax Titles gives some very valuable 86 In Wisconsin the statute fixes the forms for an abstract of this char- period at three years. aeter. See Blackw. on Tax Tit. Ap- 8T Cornell University v. Mead, 80 pendix. Wis. 387, 49 N. W. 815; Kathan v. 572 ABSTRACTS OF TITLE. [§ 541 "assessments." An a,ssessment, as distinguished from other forms of taxation, means a special or local imposition upon property in the immediate vicinity of municipal improyements which is necessary to pay for such improvements, and is laid with reference to the spe- cial benefit which the property is supposed to have derived there- from." A properly prepared abstract should show all confirmed special assessments against the property under investigation which remain unpaid at the date of the certificate. The statement may be brief but should comprise such data as will fully acquaint counsel with all necessary particulars and readily enable any person inter- ested to refer to the original sources of information. Assessments are shown as appendices in connection with statements of unpaid taxes and tax sales. The following will be a sufficient mention : Special Assessments. Assessment, Doc. 24,276, warrant 24,712, for a plank sidewalk on Ridge Avenue^ confirmed Feb. 15, 1900, was laid on Lot 17, Block 5, aforesaid. Amount of assessment, $15.00. Sometimes the entire sum of an assessment is divided into frac- tional parts and the payment extended over a series of years. When such is the case the fact should be noticed and the installments paid and unpaid should find appropriate mention. 89 Hale V. Kenosha, 29 Wis. 599. provements, but it seems to be too In many respects the system is vicious firmly established to be questioned at and unjust, being an attempt to com- this time, pel individuals to pay for public im- CHAPTER XXX. DESCENTS. § 542. Title by decent. § 557. 1 543. Nature, operation and inci- dents of the title. § 558. § 544. Inheritance as dependent on § 559. seizin. § 560. I 545. Heirship, its rights and privi- § 561. leges. § 562. § 546. The line of succession. § 563. S 547. General rule of descents. 5 548. The right of representation. § 564. I 549. Preferences. § 565. 5 550. Who may take by descent — § 566. aliens. § 567. \ 551. Continued — Adoptive heirs. § 568. i 552. Ancestral estates — Half blood. § 569. 1 553. Surviving consorts. i 554. Coparceners. § 570. ( 555. What descends. i 556. How affected by ancestral § 571. covenants. Liability for ancestral cov- enants. Creditor's liens. Equitable conversion. Proof of heirship. Proof of adoption. Proof of a death. Continued — Official registra- tion. Continued — Probate of death. Proof of birth and legitimacy. Presumption of legitimacy. Validity of descents. Abstract of descents. Continued — Probate proceed- ings. Settlement without administra- tion. Escheat. § 542. Title by Descent. The best known but least understood title to land is that which the law raises for the heir upon the death of the ancestor.^ It is called title by descent, and though for prac- tical purposes it is regarded as a new title springing from the death of the ancestor, and when asserted must be so proved, yet in reality it is but a continuation of the ancestor's title, which the law casts upon the heir at the moment of the ancestor's death.* The heir is regarded in law as a legal appointee to receive the title,* and this appointment he can neither disclaim nor avoid.* Whenever the death of any person is shown, until rebutted, the presumption is that he died intestate,^ and that his heirs take his estate under the 1 The term "ancestor," when used with reference to the descent of real jroperty, embraces all persons, collat- erals as well as lineals, through whom an inheritance is derived : Wheeler v. Clutterbuek, 52 N. T. 67. 2 Hopkins v. MeCann, 19 111. 113; Marshall v. Rose, 86 HI. 374. 3 Coke Lit. 191. 4Wms. Heal Prop. 75; 2 Black. Com. 201; 3 Wash. Eeal Prop. 6; Moore v. Chandler, 59 HL 466. 5 The word ' ' intestate ' ' properly signifies a person who died without leaving a will; but where it is used with respect to particular property, it 573 574 ABSTRACTS OF TITLE. [§ 543 laws of descent.* Posthumous children take in all respects as though they had been bom in the life-time of the intestate.' § 543. Nature, Operation and Incidents of the Title. The title of an heir is not so much an acquisition as a succession. The death of the ancestor does not create a title, but rather confirms in the heir that which was previously inchoate, uncertain and defeasible. "An estate of inheritance under the feudal law," says Mr. Bing- ham,' "existed only in the contract between the lord, for himself and his heirs on the one side, and the vassal, for himself and his heirs on the other. The one contracted that the other might have the possession and occupation of certain lands, usually upon the condition of rendering in return therefor certain rents and serv- ices, which the latter agreed to pay and perform. The heirs of each party were expressly named, and regarded, in the eyes of the law, as parties to the contract ; and, when the original parties died, the heirs became the real and acting parties to the contract; and so parties continued to succeed each other from one generation to another, so long as there were heirs capable of becoming parties. This contract right of possession of the lands constituted what is known in the law as an estate of inheritance, or an estate in fee ; and the succession of one person on the death of another, is what, in more recent times, is said to be the acquisition of title by descent." The rules governing the method of descent and the classes of heirs who shall take, as well as the order in which they shall take, have been many times changed; the nature of the estate has been enlarged; the right of alienation during life and disherison after death has been given to the ancestor ; the estate may also be diverted from the heir to satisfy the ancestor 's debts ; yet the fundamental principle of inheritance has remained practically unchanged. The contract on the part of the State as evidenced by the original grant still is, that the grantee and his heirs may hold, possess and enjoy the land, and on the death of the ancestor the heir succeeds to his rights in virtue of the original agreement, as strictly as though the right or power of alienation did not exist. The estate held by this title possesses none of the attributes of the ancient feudal estate, signifies a person who died without 7 Smith r. MeConnell, 17 111. 135; effectually disposing of that property Sansberry v. McElroy, 6 Bush (Ky.) by will, whether he left will or not. 440. 6Lyon V. Kain, 36 111. 362. In all 8 Bing. on Descents, 2; and see cases of intestacy the lex rei sitoe gov- Watk. on Descents, 65. ems the descent: Lingen v. Lingen, 45 Ala. 410. § 545] DESCENTS. 575 however, but is entire in the ancestor and his heirs, with no rever- sion or other feudal incident.^ While the State may still exercise the fight of escheat yet this, under modem statutes, is in no proper sense a reversion. § 644. Inheritance as Dependent upon Seizin. It was a primal rule of the common law that no person could inherit real estate, unless he was heir to the person last seized. Under the applica- tion of this rule it was not sufficient to be heir to the person who last had the right to the land, but not the actual seizin or possession. This rule grew out of the feudal doctrine, which required the heir to be of the blood of the first purchaser, and the seizin of the last possessor was regarded as presumptive evidence of this fact.^" The rule was subject to some exceptions in England. In this country it has never been adopted in a majority of the States, while in the others it has been expressly abrogated, and every possible right or title which the ancestor may have had in land, whether accompanied by actual seizin or possession, or not, is rendered transmissible by inheritance, with the exception of estates for years, which are re- garded as chattels, and estates for his own life.^^ The word "seizin" is now equivalent to "ownership," and though the term is still re- tained both in the statutes and the language of the courts, its legal significance does not extend further than above stated, and is in no way dependent upon possession. Every right or interest, legal or equitable, to which the intestate was in any manner entitled at his decease, except estates which come within the definition of chat- tels, real, are valid subjects of descent. §545. Heirship — ^Its Bights and Privileges. The title of an heir is held in his own right,^^ subject only to the payment of the debts of the ancestor,^' or the fulfillment of his covenants,^* and though he may afterward be divested by the decree of the probate court and sale by the administrator,^* yet until such contingency he is the owner, and entitled to all rents, profits or other beneficial incidents flowing from the land.^^ Subject to the lien of the credi- 9Haynes v. Bourn, 42 Vt. 686 Wallace t. Hannstad, 44 Pa. St. 429 10 Co. Lit. 14; Watk. on Dese. 65 11 Kent Com. 388 ; Jackson v. Hen- dricks, 3 John. Cas. 214; Bates v. Schraeder, 13 John. 260; 3 Watk. laWallbridge v. Day, 31 111. 379. ISFoltz V. Prouse, 17 111. 487; Cockerel v. Coleman, 55 Ala. 583. 14 Miller v. Bledsoe, 61 Mo. 96. ISBickford v. Stewart, 55 Wash. 278, 104 Pae. 263. (Ohio) 333; Williams v. Amory, 14 16 Foltz v. Prouse, 17 111. 487. Mass. 20. This old rule has been infringed in 576 ABSTRACTS OF TITLE. [§ 545 tors, he may make any disposition of the land he may choose, and after due probate and administration, together with an extinguish- ment of the ancestor's debts, the title becomes perfect in him or his assigns.^'' He is favored by the law, and his inheritance is never defeated except by the clearest proof of intention on the part of the ancestor, and although he is expressly excluded by the terms of a will, yet unless some valid and effectual disposition of the land is made to some other person, it descends to him by operation of law, and in case of an invalid or insufficient devise, he takes in preference to the residuary devisee.^* § 546. The Line of Succession. The law invests the heir with the title of the ancestor, but it also designates who is to be that heir, and in this respect is rigid, arbitrary and unyielding. i' The common law canons of descent ^^ have no application in the United States, but rules have been established in every State that regulate the line of succession and declare who, under certain conditions, shall be the heir. Succession in the United States, as in England, follows the line of consanguinity,^^ except where the surviving husband or wife is allowed a participation as a successor, and a person, to successfully establish his claim of title, must bring him- self within one of the classes prescribed by the statute, as well as show that no nearer degrees of kindred exist which by statute would defeat the claim which he asserts. § 547. General Rules of Descent. While there is a sad lack of harmony in the statutes of descent of the different States, which some States permitting the admiu- descendants in infinitum, of any per- istrator to take the rents and profits son deceased, should represent their pending the final settlement of the ancestor; 5, on failure of lineal de- ancestor's estate. seendants, the inheritance should de- 17 Vansyekle v. Eiehardson, 13 111. seend to the collateral relations, 171; Austin v. Bailey, 37 Vt. 219. being of the blood of the first pur- ls Haxton v. Corse, 2 Barb. Ch. chaser, subject to the three preceding 506; Eoosevelt v. Fulton, 7 Cow. 71. rules; 6, the collateral heir of the 19 Tyler v. Eeynolds, 53 Iowa 146. person last seized must be his next 20 There were seven common law collateral kinsman of the whole blood ; canons of descent to the effect: 1, 7, in collateral inheritances, the male that inheritance should always de- stock should be preferred to the fe- scend lineally, and never ascena male, unless where the lands had, in lineally; 2, that males are always fact, descended from a female: 2 preferred to females; 3, of two or Black. Com. 208, 234. more males in equal degree, the 21 See Table of Consanguinity, § 31 eldest only should inherit, but of this work, females all together; 4, that lineal § 549] DESCENTS. 577 not only prevents the formulation of a positive rule but also any in- telligent method of general treatment, it may yet be said that five well defined principles relative to the succession are discernible. The descent in accordance with these principles is as follows : Real estate of an intestate descends (1) to his lineal descendants, ex- cept where a surviving consort is allowed to participate; (2) to his father, varied in some cases by a participation of brothers and sisters; (3) to his mother, varied as before by collateral partici- pation; (4) to his collateral relatives; and (5) to the State by escheat. These five elementary principles are covered by a net- work of conditions and provisos, differing more or less in every State, and the application of these conditions governs the descent, and directs it into some one of the channels above enumerated. In all cases not provided for by the statute, tJie inheritance descends according to the course of the common law. §648. The Bight of Bepresentation. This is the right of the lineal descendants to take the portion which their ancestor would have taken, and is called inheritance per stirpes. It is a statutory right, and by reason of the diversity of the statutes of the different States, no positive rule can be stated. Generally, if one of several children shall have died before the ancestor, the heirs of such child will take the portion which would have descended to it if it had survived the ancestor,^^ and the same rules apply for deter- mining who are the heirs of such child, as in any other case of descent. In a few States, where an intestate leaves grandchildren only, they all take per capita, or in their own right,^* but as a rule of more general observance, the lineal descendants represent only their ancestor. 2* §549. Preferences. By the common law canons of descent, males were preferred before females, the eldest male taking in preference to others of equal degree, and females equally, while in collateral inheritance the male stocks were always preferred to the female, except where, in fact, the lands had descended from a female. This has all been abolished by the statutes of descent 22 Dodge T. Beeler, 12 Kan. 524; at common law, only by the appliea- Crmnp v. Faueett, 70 N. C. 345. tion of that rule, descendants of a 23 Cox V. Cox, 44 Ind. 368; Eshle- person deceased in infinitum repre- man's Appeal, 74 Pa. St. 42. Com- sented their ancestor, and only when pare Harris' Estate, 74 Pa. St. 452. the representation failed were the 24 This is somewhat in accordance lineal descendants of the intestate 's with the fourth canon of inheritance next of kin permitted to come in. Warvelle Abstracts — 37 578 ABSTKACTS OF TITLE. [§ 549 which provide in all cases for equal participation among the members of a class, and the right of primogeniture, if it ever existed in this country, is now unknown. §550. Who May Take By Descent — ^Aliens. There is a mass of curious and obsolete learning in the books, relative to persons capable of succeeding to an inheritance, for the law formerly guarded the landed estates of the country with jealous care, and ruthlessly excluded from a succession thereto all persons who owed fealty to another sovereign. Inheritance was long confined to citi- zens of the United States, and aliens were expressly declared in- capable of taking lands by descent, or other mere operation of law, and because an alien could have no inheritable blood through which title could be deduced, a citizen was precluded from asserting a title so derived. In case of the death of an alien owning lands, or of a citizen without other than alien heirs, the lands of such persons escheated to the State.** Private laws were often passed to enable individuals to receive and transmit title, and the effect of such laws was to invest the person mentioned with inheritable blood and to enable him to alien or devise his property and to transmit by descent in all respects the same as a citizen of native birth,*® but not to remove the barrier against alien heirs. All of this grew out of the timidity of the islander, and was a part of our inheritance of the English common law. At present a few relics of the narrow, insular ideas of the com- mon law may still be found, but in many States where the doctrine formerly prevailed, it has been swept away by the liberal policy of later years and in other States it never had a recognition. In a few States, while the right of inheritance is not denied to an alien, it is yet restricted by limitations of time, value and quantity, but, generally, for all practical purposes, so far as respects the acquisition and descent of land, the alien and the citizen stand upon an equal footing.*'' In the examination of titles an inquiry into the questions just noted is sometimes material and necessary, and if, from a view of the facts shown, or of answers to inquiries in pais, it appears that title is deduced through an alien, at a time when aliens were 26 Craig V. Eadford, 3 Wheat. 363 ; curtesy: Mick v. Mick, 10 Wend. Doe V. Govemeur, 11 Wheat. 352; 379. Jackson v. Green, 7 Wend. 333 ; Levy 26 Parish v. Ward, 28 Barb. 328. V. Levy, 6 Pet. 102. This extended 27 See MoConville v. HoweU, 17 as well to the estates of dower and Fed. Eep. 104. § 551] DESCENTS. 579 incapable of transmitting by descent,** evidence of other matters, sufficient in law to support the title of the present claimant, should be required before accepting same. The laws of the States re- moving the disabilities of alienage and granting or withholding the privileges of citizenship, are not usually retroactive, nor do they possess any extraterritorial effect, and the domicile of the ancestor at the time of his death does not affect the application of the lex rei sitce, for no State can prescribe qualifications of citi- zenship, to be exercised in another State, in opposition to its local laws and policy, and even the clause of the Federal constitution declaring that the citizens of each State are entitled to all the privi- leges and immunities of citizens in the several States, is not suffi- cient to overcome the rule.*' § 551. Continued — Adoptive Heirs. The rights growing out of adoption present a series of somewhat similar views. This act, being in derogation of the common law and of natural right, con- fers upon the heir by adoption rights which can only be asserted strictly within the law, and particularly is this the case when title is claimed in States other than that under whose laws the heirship was effected. The rights of inheritance acquired by an adopted heir in one State can be recognized and upheld in another State only so far as they are not inconsistent with the law of de- scent of such latter State, and his inheritable capacity must be measured by the laws of the State where the land is situate, and aot by that of his late ancestor's domicile, or the State conferring inheritable blood." Unless the statute expressly confers the right, an adopted child cannot inherit from the collateral kindred of its adoptive parent, nor from the ancestors of such parent or his natural children.'* In other words, by the act of adoption the child becomes the heir only of its foster parent. 28 Sporadic attempts to revive the 30 Consult Boss v. Eoss, 129 Mass. bar against alien heirs and to restrict 243; Sewal v. Eoberts, 115 Mass, alien ownership will be found in the 262; Keegan v. Geraghty, 101 111. 26. legislation of many States. The 81 Wallace v. Noland, 246 111. 535, effect of such legislation must be 92 N. E. 956; Boaz v. Swinney, 79 determined by local laws and statu- Kan. 332, 99 Pac. 621; Merritt v. tory construction. Morton, 143 Ky. 133, 136 S. W. 133, 29 Gerard's Titles, 89; Corfield v. 33 L. E. A. (N. 8.) 139. Corgell, 4 Wash. (C. Ct.) 371; Kee- gan V. Geraghty, 101 111. 26. 580 ABSTRACTS OF TITLE. [§ 552 § 552. Ancestral Estates — Half Blood. A marked provision may be observed in the statutes of descent of many States in rela- tion to ancestral estates and the exclusion of all persons who do not partake of the blood of such ancestor. The clause in question provides in substance that in case an inheritance comes to an in- testate by descent, devise or gift of one of his ancestors, all those not of the blood of such ancestor shall be excluded from such inheritance, and the rule observed by the courts is general, that only persons of ancestral blood can inherit ancestral estates.'* The current of later decisions, however, is uniform in declaring that the rule has reference to the immediate ancestor from whom the intestate received the inheritance, and not a remote ancestor who was the original source of title.'* § 553. Surviviag Consorts. Husbands and wives are in no sense of the word next of kin to the other,'* but inasmuch as heir- ship is peculiarly a creation of the legislature, it has the power to make a surviving husband or wife, as well as a child, an heir, and this has been directly or indirectly accomplished in a number of the States.'^ But further, the right of dower has been radically changed in a few States, so that instead of the use, during life, of a portion of the husband's estate, the fee to a specific quantity vests absolutely in the widow upon his death, and though it will require no small amount of astute reasoning to discover wherein such procedure does not constitute a descent, yet the courts of such States, in view of the fact that the statute declares that she shall be "entitled," etc., have decided that the widow does not take by descent, as an heir, but by virtue of her marriage relation, as a widow.'^ Further provision for a surviving consort is made in some States where the deceased spouse leaves no children, or no kindred of any kind, and in such event the survivor takes strictly as an heir." 82 Campbell v. Ware, 27 Ark. 65 ; to relatives by blood. See Slossou Wheeler V. Olutterbuck, 52 N. Y. 67 ; v. Lynch, 43 Barb. (N. Y.) 147; Perkins v. Simmonds, 28 Wis. 90. Haraden v. Larrabee, 113 Mass. 430; 33 Buckingham v. Jacques, 37 Con. Dodge 's appeal, 106 Pa. St. 216. 402; Curren v. Taylor, 19 Ohio, 36; SB May v. Fletcher, 40 Ind. 577; Cramer's Appeal, 43 Wis. 167; Eyan Dodge v. Beeler, 12 Kan. 524; King- V. Andrews, 21 Mich. 229; Wheeler house v. Keever, 49 HI. 470. V. Olutterbuck, 52 N. Y. 67. 86 Brannon v. May, 43 Ind. 92; 34 Townsend v. Eadcliffe, 44 111. May v. Fletcher, 40 Ind. 577. 446; Tillman v. Davis, 95 N. Y. 17. 37 See, York v. York, 38 111. 522. The term "next of kin" refers only § 557] DESCENTS. 581 § 554. Coparceners. Persons to whom an estate of inheritance descends jointly, and by whom it is held as an entire estate, are called coparceners.^' Formerly in England the term included all persons, and such is its legal signification in America, hut its pres- ent use in England is confined to females.^' The distinction be- tween coparcenary and tenancy in common, is virtually abolished in the United States, and the general rules relative to tenants in common have the same application whether the common property be derived by descent or by purchase. §555. What Descends. Everything comprised in the term "lands," or "lands, tenements and hereditaments," descends ac- cording to law to the heirs, and these terms include every estate, interest and right, legal and equitable, whether in possession or expectancy, vested or contingent, except such matters as may be determined or extinguished by the death of the intestate, leases for years, and estates for the life of another.*" §556. How Affected by Ancestral Covenants. Heirs are not bound by the covenants of their ancestors, further than the real estate descended to them and the amount of their distributive shares of their ancestor's personal estate,*^ but where the ancestor conveyed with warranty, land to which he had no title, or in which he had only an inferior or limited estate, his heirs must make the warranty good if they have assets by descent equal to the value of the land.*^ § 557. Liability for Ancestral Debts. An heir is under no legal liability to discharge the debts of his ancestor from whom he takes real estate, except where the personal estate of such ancestor is insufficient to pay same,** and creditors, in the first instance, must resort to the personal representatives before seeking satis- 881 Bou. Law Diet. 363; 2 Black. 43 McLean v. McBean, 74 111. Com. 187. 134; Woodfin v. Anderson, 2 Tenn. 39 4 Kent Com. 462; 2 Bou. Inst. Ch. 331. Though customary, it is n. 1781. not accurate to say that lands de- 40 The statute usually defines the scending to heirs are charged with subject of inheritance, but the above the debts of the ancestor. The is the substance of the statute as lands are liable only to be charged generally enacted. with the payment of debts upon a 41 Holder v. Mount, 2 Marsh. deficiency of personal assets ; and (Ky.) 189. this right may be lost by delay: 42 Miller v. Bledsoe, 61 Mo. 96. Bishop v. O'Connor, 69 III. 431. 582 ABSTRACTS OF TITLE. [§ 557 faction of the heirs.** After having accepted the succession, they become personally liable for the debts of the ancestor," but only to the extent of what descends to them from such ancestor.*^ § 558. Creditors' Liens. Even though a title by descent may be perfect in the person asserting same, it is yet liable to be de- feated by a sale made in satisfaction of the ancestor's debts, and no security can be predicated for it until the bar of the statute has intervened. In case of unprobated estates the full period of limi- tation must have expired before a purchaser can feel rea- sonably certain as to the stability of his title, and where there is no statute — as is generally the case — interposing any limitation of time within which the lien of creditors on the lands of a decedent must be enforced, difficult and embarrassing questions are presented, for which no absolute rule of solution can be given. The questions that naturally arise are ; will the delay and laches of the creditor destroy his lien and right to pursue the land in the hands of the grantee of the heir, holding under a conveyance duly recorded, and if so, what period of time must elapse? Certainly the lien can not be perpetual, and it would seem, by analogy to the liens of judgments and the limitation for entry upon land, that the statutory period provided in those eases should bar such lien, and this has been the view taken by the courts in several instances when such questions have been presented.*'' The question, however, is still one of great doubt and uncertainty. The conclusion above stated seems in every way just and equitable and in consonance with established legal rules, yet it appears to have been adopted in but few States. The preponderance of au- thority leaves the matter open and indefinite. It is agreed that an order to sell lands should be procured within a reasonable time, but what is a reasonable time is generally left to the discre- 44 Mix T. French, 10 Heisk. Ark. 229; Branger v. Lucy, 82 111. (Tenn.) 377. ' 91; Outright v. Stanford, 81 111. *6 Succession of Bougere, 28 La. 240. Ann. 743. The debts chargeable 47 McCoy v. Morrow, 18 111. 519; upon lands descended are those con- Fitzgerald v. Glancy, 49 HI. 465; tracted by the decedent owner, not Furlong v. Eiley, 103 111. 638. The those incurred by his representa- policy of the law is, repose and tives in the course of administra- security of titles and estates against tion: Allen v. Poole, 54 Miss. 323; dormant claims, and further, to Porterfield v. Taliaferro, 9 Lea afford notice of liens against lands (Tenn.), 242. through the public records, and to 46 Payson v. Hadduck, 8 Biss. (C. disfavor those liens of which there Ct.) 293; Williams v. Ewing, 31 has been no public notice. § 559] DESCENDS. 683 tion of the courts to be determined upon consideration of all the circumstances of each particular case.** In ease of probated estates, a shorter period is required. The limit of the time when application can be made by creditors to sell the lands of the decedent, is variously fixed at from one to four years from the granting of letters of administration. Dur- ing this period the land remains subject to sale, in case of a defi- ciency of personal assets, not only in the hands of the heirs, but of every subsequent purehaser,*^ and the title made at such sale will be paramount to all titles made by or through the heirs."" There is no prohibition to the alienation of the land before the ex- piration of the prescribed period, for the heir may sell and convey at any time after the death of the ancestor, but if he should convey before the expiration of that period, the lands pass subject to the power of the probate court to order a sale for the payment of debts, which is a kind of statutory lien running with the land. After the expiration of the statutory period, the power of the probate court ceases; the land is discharged from the lien; and the heir may sell, and bona fide purchasers will take the estate, freed and discharged from the debts."^ The foregoing is based upon decisions made in pursuance of local statutes, but will probably serve as a general exposition of the law in all States so far as respects creditors who fail to present or prove their claims. § 559. Equitable Conversion. The succession of the heir may also be defeated by what is known as equitable conversion, as where the ancestor had made a valid contract of sale but died before its consunimation by deed. In such a case equity will in- 48 Hatch T. Kelly, 63 N. H. 29; that it can not be sold under a Gunby v. Brown, 86 Mo. 253; Mays judgment against him; but the V. Rogers (37 Ark. 155; Liddel v. creditor must satisfy his judgment McVickar, 11 N. J. L. 44; Ferguseu out of other property of the heir to V. Scott, 49 Miss. 500. the extent of the value of the land 49 Hyde v. Tanner, 1 Barb. 79; so aliened: Vansyckle v. Kichard- Hill V. Treat, 67 Me. 501; McCoy son, 13 111. 171. V. Morrow, 18 111. 519. 61 CoUamore v. Wilder, 19 Kan. 60 Meyer V. McDougal, 47 111. 278. 67; Sevier v. Gordon, 29 La. Ann. The same is equally true of dev- 440; Hyde i^. Tanner, 1 Barb. 79; isees: Hyde v. Tanner, 1 Barb. 79. Nowell v. Bragdon, 14 Me. 320; But where the creditor proceeds Aiken v. Morse, 104 Mass. 277. directly against the heir, if the This is a matter of statutory regu- real estate has been sold by such lation; consult local statutes, heir in good faith, it would seem 584 ABSTRACTS OP TlTLfi. [§ 659 tervene, on the familiar principles heretofore shown.^^ In the event just noted, the purchase money accrues to the executor or administrator, and not to the heirs,®' while on the contrary, if th^ ancestor had purchased land but received no conveyance, the title subsequently acquired would inure to the heirs, even though the administrator paid the purchase money. §560. Proof of Heirship. Title by inheritance or succession accrues only to the issue of lawful wedlock,®* and can be asserted only by the person or persons who can bring themselves within the line of succession provided by the statute. To. successfully assert the title, therefore, it is necessary for the heir to prove: (1) the death of the ancestor, and lawful seizin in him of the subject-mat- ter of the title at the time of such decease; (2) the marriage of his parents; and (3) proof of his legitimacy or a lawful adoption. These three points satisfactorily established, the law will invest him with title to such portion of the ancestor's estates as, imder the statute, he is entitled to take. To prove heirship in a collateral line, a party must show the descent of himself and the person last seized, from some common ancestor, and the extinction of all those lines of descent which would claim before him.*® In contests concerning the succession, these matters are proved in a variety of ways, but mainly upon the established precedents of the common law, which will be discussed in succeeding para- graphs. The difficulties which may attend the judicial determina- tion of questions of heirship, includin'g the aseertaiuing who are entitled to succeed to an intestate's real estate, do not seem to be provided for by statute in a majority of the States, though an at- tempt has been made in some to provide means, by a proceeding in probate, for obtaining presumptive evidence of the facts as to the persons who constitute the heirs at law of a deceased person.®" 52 See Chap. XVIII, Agreements the property of an intestate is made for Conveyances. to descend to and among the chil- 53 The heirs in such a case would dren and their descendants, has ref- take the legal title by descent, but erence to lawful children only, and only as trustees: Johnson v. Cor- does not do away with the common bett, 11 Paige, 265; Moore v. Bur- law rule, which prevents illegitimate rows, 34 Barb. 173; Smith v. Smith, children from inheriting anything: 55 111. 204; Eaton v. Bryan, 18 111. Blacklaws v. Milne, 82 111. 505. 525. frSEmmerson v. White, 29 N. H. 64 It is a rule of construction 482. that, prima facie the term ' ' chU- 56 See, N. Y. Civ. Co. Proc. I 2654. dren" means lawful children, and This is done by petition describing the statute of descents, by which the real estate ; setting forth the facta § 562] DESCENTS. 585 Ordinarily the meager proof offered by the administrator, upon the application for letters of administration, is the only record proof of heirship available in the compilation of an abstract, and though the decree or adjudication may find the persons mentioned in his petition the only heirs at law of the decedent, it is not con- clusive on that point, and is done rather for the purpose of fixing the right of the person appointed to administer, and for his guid- ance in the distribution of the personalty, than to establish the claims of the heirs to the realty through descent. § 561. Proof of Adoption. Where the heir is such by adoption and not by blood, it may be well, in proper cases, to require fur- ther proof of heirship than is afforded by the finding of the probate court. This would be accomplished by showing the decree of adop- tion. The right of adoption is not of common law origin but is borrowed from the civil law, and, in every instance, is purely statu- tory. It is necessary, therefore, that the facts essential to the exercise of this special jurisdiction should be shown by the record, and to give a decree of adoption any force or effect the court pro- nouncing same must, as a rule, have acquired jurisdiction (1) over the person seeking to adopt the child; (2) over the child; and (3) over the parents of such child.*'' In other words, the statute must in all cases be complied with ; "^ its terms and conditions must be fulfilled ; and if the specified requisites *' are not performed, then the act is incomplete and the child can not inherit from the par- ent by adoption.^' Where the statute provides specifically the means whereby one sustaining no blood relation to an intestate may inherit his property, the rights of inheritance must be ac- quired in that manner, and can be acquired in no other way.** § 562. Proof of Death. To establish the claim of the heir it is necessarjr to prove the death of the ancestor, and, in the absence upon which the jurisdiction of the 59 Usually the consent of the par- court depends; the interest of the pe- ents or surviving parent of the child titioners and other heirs; and pray- is required, and if the child is over ing for a decree establishing the the age of consent, its own consent rights of inheritance; but this pro- as well. Where these requisites are ceeding does not affect the right or specified they are vital, interest of a person not a party eOLuppie v. Winans, 37 N. J. Eq. thereto. 245; Foster v. Waterman, 124 Mass. ST Ferguson v. Jones, 17 Oreg. 204. 592. 58 Tyler v. Eeynolds, 53 Iowa, 61 Sheerer y. Weaver, 56 Iowa, 578. 146; Keegan v. Geraghty, 101 111. 26. 586 ABSTRACTS OF TITLE. [§562 of proof, all the presumptions are that an individual is still liv- ing. 62 poj. certain purposes an absence of seven years without tid- ings has been held to create a presumption of death,®* but this presumption is repelled by very slight facts and circumstances®* and courts have refused to entertain the presumption after an in- terval of absence and silence of twenty years, where the circum- stances rendered it improbable that a party, if alive, would have communicated with her friends. ®5 "Scarcely any length of time," observes a Canadian writer,®® "will be sufficient to compel an un- willing purchaser to take a title depending on such a presumption of death, unless made with reference to the age of the party said to be deceased ; and if the party whose death is asserted was, when last heard of, very young, the period must be that beyond which human life does not commonly extend. ' ' Instances similar to that cited by the writer just quoted must, however, be of very rare oc- currence in the United States as other agencies, arising from tax- ation, adverse possession, statute of limitations, etc., might, under 62 Martinez v. Vives Succession, 32 La. Ann. 305; Mosheimer v. XJs^e- man, 36 111. 232; Whiting v. McoU, 46 111. 230. Great lapse of time will, of course, rebut the presumption, and in the interval of, say one hundred years, a party must be presumed to have died in the ordinary course of nature. The civil law, however, pre- sumes a person living at one hundred years of age, and the common law does not stop much short of this. See Watson v. Tindal, 24 Ga. 494. 63 Whiting v. NieoU, 46 111. 230; Dart, on Vend. 315; Hubback on Sue. (Eng.) 179; Newman v. Jen- kins, 10 Pick. 155; Wambough v. Schenk, 1 Pa. 229; Davie v. Briggs, 97 IT. S. 628; Adams v. Jones, 39 Ga. 479. 64 Smith V. Smith, 49 Ala. 158; Brown v. Jewett, 18 N. H. 230 ; Mod- ern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, 2 L. E. A. (N. S.) 809. A failure to hear from an absent per- son for seven years, who was known to have had a fixed place of residence abroad, would not be sufficient to raise a presumption of his death, un- less due inquiry had been made at such place without getting tidings from him. Wentworth v. Wentworth, 71 Me. 72. 65 Taylor on Titles, 65 ; Bowden V. Henderson, 2 Sm. & G. (Eng.) 560. On the other hand one may be pre- sumed to be dead before the expira- tion of the lapse of time requisite to establish the presumption in the case of absence without being heard from, if there is sufficient evidence, though circumstantial only, to fairly induce a belief in the fact that death has occurred: Boyd v. Ins. Co., 34 La. Ann. 848. . The presumption varies somewhat according to the subject to which it is applied; this is strikingly illustrated in the ease of second mar- riages, where more liberal intend- ments are permitted, than in case of succession and descent. See, Cooper v. Cooper, 86 Ind. 75; Williams Es- tate, 13 Phil. (Pa.) 325. 66 Taylor on Titles, 65 ; citing Lee on Abstracts, 467. And see, O^Gara V. Eisenlohr, 38 N. Y. 296; Watson V. Tindal, 24 Ga. 274; Sprig v. Moale, 28 Md. 497. § 562] DESCENTS. 587 proper circumstances, validate and make good a title derived by succession even though defective in itself and founded upon in- sufficient evidence of ancestral death. The ordinary evidence of death in England consists of entries in parochial registers, or certified copies of same, and declarations as to the identity of the parties; these registers, however, do not seem to be evidence of the time of death, and disclose the fact only inferentially, as by showing that it must have occurred before the date of burial, of which fact they seem to be evidence.®'' Such evi- dence has, however, been received in the United States,®* particu- larly in proving pedigrees, but is of doubtful character, unless aided by statute. To remedy the defects, inaccuracies, omissions, etc., of parish registers, as well as to provide some tangible evi- dence of bjrths, marriages and deaths, for the large class who would not be affected by such registers in a country where a com- plete disassociation of church and State is observed, many of the States have provided a special registration of such facts in the permanent archives of the counties. Where the question arises in the examination of title, and no other or better evidence can be adduced, it is customary to procure the affidavits of eye witnesses who are conversant with the fact. Thus, the affidavit of the attending physician, or the undertaker, or a person who knew deceased in life and saw his remains in the coffin, are often resorted to in cases of difficulty and to sustain con- veyances by alleged heirs. Granting of letters of administration is prima facie evidence of the death of the party upon whose estate they are issued, but the presumption thus raised is of the lowest class; is weak and incon- clusive, and may be rebutted by slight evidence.®' Death, like any other fact, may be proved by circumstantial evi- dence ; hence a sudden disappearance, particularly if coupled with an unsound mental or physical condition,'" or proof of a wreck of a vessel in which the ancestor was known to have taken passage, or any other circumstances from which the death of the person 67 Dart on V. & P. * 176. were held to be admissible in a land 68 Hyam v. Edwards, 1 Dall. (TJ. controversy in Kentucky, tried in one S.) 2; Duplessis v. Kennedy, 6 La. of the courts of the United States. 233; Jackson v. Boneham, 15 Johns. It was there held, expressly, that (N. Y.) 226. The question was de- they were competent testimony. Lewis cided in favor of such entries in an v. Marshall, 5 Pet. (TJ. S.) 470. early case in the Supreme Court of 69 Tisdale v. Ins. Co., 26 Iowa 170. the United States, where entries of TO John Hancock, etc., Co. v. Moore, burial in a church in Philadelphia 34 Mich. 41. 588 ABSTBACTS OF TITLE. [§ 562 may be reasonably inferred, are all competent to show the fact in connection with long and unexplained absence. Where several lives are lost in the same disaster, there is no presumption from age or sex that either survived the other, nor is it presumed that all died at the same moment; but the fact of survivorship, like every other fact, must be proved by the party asserting it.'^ In the absence of evidence from which the contrary may be inferred, all may be considered to have perished at the same moment; not because that fact is presumed, but, because from a failure of those asserting it to prove to the contrary, property rights must neces- sarily be settled on that theory.''^ All cases involving the ques- tion of survivorship must be determined upon their own peculiar facts and circumstances whenever the evidence is sufficient to sup- port a finding of survivorship ; in the absence of such evidence the question of survivorship must necessarily be regarded as unaseer- tainable. § 563. Continued — Official Registration. In States where a sys- tem of official registration prevails, all persons or societies solemniz- ing marriages; all physicians, or other professional persons, under whose care a birth shall occur, or in case of no professional at- tendance, then the mother; and all persons who shall be in at- tendance professionally at the time of the death of any person, are required to transmit to the recording officer of the county a statement under their hands of the facts attending such marriage, birth or death, and a register of the facts so returned is kept by such officer. A transcript of such registry is further required to 71 Newell V. Nichols, 75 N. Y. 78; law the presumptions were never in Coye V. Leach, 8 Met. (Mass.) 371; favor of contemporaneous death. If U. S. Casualty Co. v. Kacer, 169 Mo. a father and his son perished in the 301, 69 S. W. 370; Cowman V. Eogers, same battle or shipwreck, the son 73 Md. 403, 21 Atl. 64, 10 L. E. A. above the age of puberty was pre- 550. sumed to have survived his father; 72 This is the generally accepted under that age to have predeceased doctrine in all the States which de- him. This was upon the idea that rive their systems of jurisprudence in the former case the son was usually from the common law; under the stronger, in the latter case weaker, civil law, however, there is no room than his father. So if persons perish- for dispute on the subject, it being ing in the same disaster were all the invariable rule of the civilians under fifteen, the presumption of sur- that when a parent and his grown vivorship was with the elder; if all child perish together, the manner were over sixty, with the younger, thereof being unknown, the child Similarly the wife (being of the shall be supposed to survive the weaker sex) was presumed to have parent. According to the Boman yielded first to the common peril. § 564] DESCENTS. 589 be transmitted semi-annually to the Secretary of State to be by him preserved at the seat of government." This record, when made and kept pursuant to law, is received as presumptive evidence of the marriage, birth or death so recorded.'* When no probate pro- ceedings have been had, this method of proof, if available, should be resorted to for the purpose of showing the death of the ances- tor, as well as the birth and legitimacy of the heir claimant. The facts of a death certificate may be stated in this manner : Proof of Death of George Williams. Doc. 200,110. Certificate by Wm. M. Farr, M. D. Dated March 10, 18^3. ■Recorded March 11, 18^3. Death Register "A," page 20.88. Certifies that George Williams, white, male, aged fifty-five years, by occupation a carpenter, died Mar. 8, 1883, at the town of Pleas- ant Prairie, Kenosha County, Wisconsin, of Bright's disease of the kidneys, and was buried in the "German Roman Catholic Ceme- tery." That said deceased was bom Mar. 8, 1828. That the name of the father of said deceased was Henry Wil- liams, and of his mother Jomc (Flynn) Williams, and that the name of said deceased's wife is Mary (Jones) Williams.''^ § 564. Continued — Probate of Death. Before administration is granted upon the estate of any person alleged to have died in- testate, satisfactory proof is always required to be made before the probate court to whom application for that purpose is made, that the person in whose estate letters of administration are requested, is dead, and died intestate. This is accomplished by an affidavit or verified petition, made by the person applying for such letters, or by some other credible person, and forms the basis of all sub- sequent proceedings in such court. Oral testimony of the fact of 73 This matter is local and statu- in some measure, will serve as an tory. The statement above made is aid in securing missing links in a compiled from the code of the State chain of pedigree, of Wisconsin. As affecting real 74 State v. Wallace, 9 N. H. 515 ; estate- by descent, it is a most wise Milf ord v. Worcester, 7 Mass. 48 ; and salutary measure and one that State v. Potter, 52 Vt. 33; Niles v. should find immediate adoption in all Sprague, 13 Iowa, 198. States in which it does not now pre- 75 This serves to identify the de- vail. In some States the municipal ceased with reasonable certainty, and authorities are required to keep a precludes the necessity of affidavits register of "vital statistics," which, or declarations of identity. 590 ABSTKACTS OF TITLE. [§ 565 death is also received on proof of will or heirship and in such eases a judicial finding of death is entered of record. § 565. Proof of Birth and Legitimacy. Certificates of the mar- riage of the parents and the baptism of the person proposed within a reasonable time after the marriage, are admitted in England, and it would seem in Canada, as full and ample evidence of legitimacy, without any proof of the identity of the parties,''* and such evi- dence in a contest regarding the succession would also be received in the United States, while for many purposes, in the absence of better evidence, general reputation,''"' proof of cohabitation,''* ad- missions and declarations,''® would be competent. Entries in a family bible are also admissible to prove birth when primary evi- dence can not be obtained.*" An abstract, as it is compiled in this country, does not contain evidence of this character, and where it is desirable to obtain information relative to heirship, and no decree has been made in any matter respecting same, and no system of official registration of births and marriages exists, an inquiry in pais must be made. Where official returns are made and kept pur- suant to law, such returns, or the record thereof, would furnish prima facie evidence of the desired facts,*^ while the probate of the estate, including distribution, assignment of dower, etc., would also be evidence of the same character. Except in cases of contested succession the question of marriage 76 Taylor on Titles, 63; Hubbaek Tuttle, 4 N. H. 371; Kelly v. Mc- on Sue. 65. A eertifieate of bap- Guire, 15 Ark. 555; Jackson v. Brow- tism is no evidence of the exact age ner, 18 Johns. (N. Y.) 37. of a party; it is good evidence of. 78 Clayton v. Wardell, 4 N. Y. 230; his legitimacy, but not of his age: State v. Armington, 25 Minn. 29. Gov. Con. Ev. 281. And an entry Proof of both reputation and co- in a baptismal register is competent habitation are sufficient evidence upon to prove only the fact and date of which to presume marriage, but proof baptism: Blackburn v. Crawford's of either alone is not sufficient: Com- Lessee, 3 Wall. (TJ. S.) 175. monwealth v. Stump, 53 Pa. St. 132. 77 Penton v. Eeed, 4 Johns, 52 ; Reputation is generally held to con- Briee's Estate, 11 PhUa. (Pa.) 98; sist of the expressed opinions of per- Harland v. Eastman, 107 111. 535. sons who knew the parties. An affidavit by some person who 79 Betsinger v. Chapman, 88 N. Y. was present and witnessed the mar- 487; Proctor v. Bigelow, 38 Mich, riage would be competent (Brewer 282; IlL Land & Loan Co. v. Bonner, V. State, 59 Ala. 101; State v. Wil- 75 111. 315. liams, 20 Iowa 98), or by the cele- 80 Campbell v. Wilson, 33 Tex. 252; brant (State v. Goodrich, 14 W. Va. Hunt v. Chosen Friends, 64 Mich. 67. 834), or by some member of the 81 State v. Potter, 52 Vt. 33; Niles family that a marriage was reputed v. Sprague, 13 Iowa 198. to have taken place: Waldron v. § 565] DESCENTS. 591 does not become very material in the examination of a title. All intendments are in its favor and very slight evidence will usually be sufficient to sustain the claim of an heir where nothing appears to oppose it. The law presumes a child to have been born in law- ful wedlock, and this presumption must prevail until overcome by clear and convincing proof adduced by those alleging illegitimacy.'^ If the estate has been probated nothing more than the proof of heirship taken therein will be required ; if there has been no pro- bate an affidavit of pedigree should be furnished. Absolute facts are not essential to such an affidavit 'nor is it necessary that the affiant should make a statement from his own knowledge. Com- mon reputation, living together of the parents, and other cor- roborating circumstances will all tend to prove marriage. At com- mon law no special form or solemnity is necessary to constitute a valid marriage and where parties enter into the relation by mutual consent the legal results of marriage will follow. Such marriages have repeatedly been recognized in the United States ^ and the assent may and will be presumed from the actions of the parties. Continuous matrimonial intercourse for a number of years will fur- nish grounds for the presumption of a valid marriage,'* and evi- dence of a legitimate descent.'^ At the present time there is a strong and growing tendency against the validity of the so-called common law marriage and in some States such unions are no longer recognized. Local usage must determine any questions of this kind that may arise. 88 Orthwein v. Thomas, 127 111. such subsequent relations have all the 554, 21 N. B. 430, 4 L. R. A. 434; appearance of the marriage relation, Ee Pickings Estate, 163 Pa. 14, 29 and there is nothing apparently clan- Atl. 875, 25 L. E. A. 477. destine, and no divided reputation, 83 Port V. Port, 70 111. 486 ; Meis- and the parties acknowledge each ter V. Moore, 96 TJ. S. 76; Hutchins other on all occasions and under all V. Kimmell, 31 Mich. 126. circumstances as man and wife to the 84 The rule may be succinctly stated extent that married persons ordinarily as follows: Where it appears that do, a legal presumption of marriage the intercourse between the parties is raised. Cross v. Cross, 55 Mich, was originally illicit, there being no 287; Williams v. Williams, 46 Wis. impediment to marriage, it will be 464; Harbeck v. Harbeck, 102 N. Y. presumed that the intercourse con- 714 ; Arnold v. Chesebrough, 46 Fed. tinued to be illicit; and where their Eed. 700. subsequent relations appear to be 86 K. P. E. E. Co. v. Miller, 2 clandestine, and are kept concealed Cal. 442; Askew v. Dupree, 30 Ga. from others who will necessarily dis- 173 ; Duncan v. Duncan, 10 Ohio St. cover that the relation is UUcit, un- 181; Dyer v. Brennock, 66 Mo. 391. less made to believe that the parties But see, Eobertson v. State, 42 Ala. ' are married, the evidence is iusuffi- 509 ; Mangue v. Mangue, 1 Mass. 240 ; eient to prove marriage. But where In re Thaley, 93 Pa. St. 36. 592 ABSTRACTS OF TITLK. [§ 566 §566. Presumption of Legfitimacy. It was formerly the rule in England, as also in this country, that when a child was born in wedlock the presumption of legitimacy was conclusive. But recent years have greatly modified the old rule and now, while the presumption is not to be rebutted by circumstances which only create doubt and suspicion, it may yet be wholly removed by proper and sufSeient evidence showing that the husband was (1) incompetent; (2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which the child must in the course of nature, have been begotten; or (4) only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse.*® § 567. Validity of Descents. Titles depending upon descent are viewed by our English brethren with disfavor and ranked amongst the poorest that can be offered, or the weakest that can be asserted. Such titles are always to be viewed with jealousy, observe their leading writers, and if dependent upon several suc- cessive descents are scarcely marketable.*'' In a limited sense this may also be true of title by descent in the United States, and purchasers would be justified in refusing to take many titles that might be offered by parties claiming in this manner. This almost invariably follows in cases of unprobated estates, for no title can be more uncertain and insecure, and scarcely any length of time in the absence of other evidence, would be sufficient to furnish a reasonable presumption of death and the exclusion of the rights of other heirs who might possess valid claims upon the prop- erty.** Proof that certain persons are the only children who sur- vive their father does not establish the fact that they are the only heirs, as he may have grandchildren by deceased children,*' and hence it is necessary, in some instances, that additional informa- tion to that furnished by the proceedings in probate, be also pro- cured to fully establish an asserted right. A properly taken proof of heirship in probate should, however, show the fact of decease of children prior to the death of the intestate and whether or not such children died without issue, but frequently this fact is 86 See, Goss v. Froman, 89 Ky. 88 A deceased person is always pre- 318, 12 S. W. 387. sumed to have left heirs: Pile v. 87 Atkinson on Titles, 374; Hub- McBratney, 15 111. 314. back on Sue. (Eng.) 71; Taylor on 89 Skinner v. Fulton, 39 111. 484. Titles (Canada), 61. § 568] DESCENTS. 593 not found." The statute of limitations will furnish a strong re- enforcement to a doubtful title by descent, and serve to effectually settle many of the questions that otherwise would render the title undesirable. §568. Abstract of Descents. Under the English system of abstracting, a descent is shown by a pedigree, supported by cer- tificates of marriage, births and deaths, inserted in the order of their date. If the certificates can not be procured, which from the loss or imperfect state of registers or other circumstances is sometimes the case, substitution is made of entries in the Royal College of Arms, in family bibles or books, inscriptions on tomb stones, and the solemn declarations of family solicitors, tenants, workmen, and parties acquainted with circumstances and facts, as well as such evidence of the seizin of the different parties, shown by the pedigree to be entitled, as can be adduced; for which evidence old leases of the property, land tax, and parochial assess- ments, are referred to.'^ Pedigrees, or family histories, may be used to a very limited extent in the eastern States and are some- times alluded to by writers on conveyancing, but in the west they are practically unknown, while authentic information of the facts to which a pedigree relates is usually extremely difficult of ascer- tainment, and the sources as mentioned above would hardly be considered sufficiently certain by the average attorney. Family records, when shown to have been regularly compiled, are not without weight in the United States, and are frequently resorted to for proof of heirship in the administration of estates and trial of disputed land titles, but while they, with other evi- dence, will be received by courts to prove pedigree and establish rights of succession, they do not constitute such evidence, save as they appear in court proceedings by way of recital, as is re- quired in compiling an abstract, and examiners as a rule do not, and as a matter of fact, should not, attempt to introduce them or any other matter strictly in pais. A judicial determination in an action brought by adverse claimants, or in a proceeding in rem to determine the rights and apportion the interests of the parties before the court, would be proper record evidence of 90 From personal inquiries made by ters of admimstration, and that in author it appears that in a majority such courts it is not customary to of the probate courts of the State of make any judicial findings of heir- Illinois no proof of heirship is re- ship. Probably the same conditions quired other than that furnished by prevail in other States, the statements of the petition for let- 91 Moore on Abst. 44. Warvelle Abstracts— 38 594 ABSTRACTS OF TITLE. ' [§ 568 descent and right of succession, while the proceedings in probate are evidence of the same nature. These matters therefore, must always be noted and appropriately exhibited, and with a very few exceptions will furnish sufficient data, and be sufficiently conclusive of the facts of death and heirship, to warrant the be- lief that the persons so found to be the heirs of the decedent are such heirs and the only ones entitled to participate in the dis- tribution or share in the succession. § 569. Continued — Probate Proceedings. The usual and ordi- nary method of showing a descent in the United States is by an abstract of the settlement of decedent's estate. This should dis- close the jurisdiction of the court, appointment of administrator, proof of heirship, and adjudication.*^ This is sufficient to show the descent, but in order that the title of the heirs may not be obscured by latent defects or creditors' liens, the inventory, pay- ment of claims, and final report and discharge of the adminis- trator should also, be shown. The degree of detail is optional with the examiner, provided the jurisdiction be made to appear and an apparent regularity is shown in all of the subsequent steps. The following is offered as a specimen of a very simple settlement : Iti Probate Court, Cook County, Ills. In the matter of the estate ] ^ „ r. /,or, ■ x -.o^ , ! Case No. 2,000 m box 135. T J- A Tif I Petition of Anna Haskell for let- J ters of administration, filed May 10, 1883. Record 14, pg. 12. Represents that Julia A. Mason died intestate, Aug. 2, 1882, leaving property and effects hi Cook County, Ills., as follows, to wit: [describe the real estate] and leaving her surviving,^^ Anna 92 These latter will not be found heirship of the persons named (Bus- in the proceedings of some probate sell v. Jackson, 22 Wend. (N. Y.) courts. But where a special proof 277), but is not conclusive, nor does of heirship is required to be made, it prove that the persons named are followed by a judicial finding of heir- the only heirs entitled to share in ship these matters become of high the succession, as the intestate may importance and should always be have had children who did not sur- shown. See the recitals in the form vive him, but who in turn may have given in this section. left children entitled to a representa- 93 This fact, if properly proved, tion: Skinner v. Pulton, 39 HI. 484. will be sufficient to establish the § 570] DESCENTS. 595 Haskell (wife of Charles Haskell) and Walter A. Mason, her only heirs at lam. Sworn to May 10, 1883. Letters of administration issued to Anna Haskell, dated May 10, 1883. Bond in sum of $6,400.00 with sureties, filed and approved May 10, 1883. Warrant to appraisers issued, dated May 10, 18^3. Proof of heirship entered May 10, 1883. The court finds from the evidence produced in open court, that Julia A. Mason died Aug. 2, 1882,^* leaving her surviving Walter A. Mason, her son, and Anna Haskell (wife of Charles Haskell) her daughter, her only next of kin and heirs at law. Proof of publication and posting of notices for adjudication filed Jxme 1, 1883, and approved July 16, 1883. Adjudication ordered July 16, 1883. Proceed in , this order showing succeeding steps in much the same manner as an abstract of a devise.'^ This would include the proof, allowance and payment of claims, and the final order of distribution and discharge of the administrator. The foregoing will be all that is necessary in a majority of eases but more detail is now being shown in the abstracts of descent than was formerly the practice. Thus, a synopsis of the evidence offered on the hearing of heirship is frequently inserted as well as the findings of the court. This will be the case where the deceased was married more than once and it becomes important to show whether the spouses died prior to the death of the intestate ; whether they were divorced, or whether they survived him. Many ex- aminers show the ages of the heirs. Where claims have been contested and disallowed if appeals have been prayed these facts, together with the order entered and the date of filing and approval of appeal bond, should be shown. § 570. Settlement Without Administration. It is competent for all the heirs to an estate, if of age, to settle and pay the debts 94 The proof of death is the foun- 111. 517, for a learned and instructive dation of title by descent or through opinion on grants of administration, the administrator; this must be con- made on presumptions and insufficient elusive, and, while the evidence need proof. not be showu, the fact should be BB See § 417 for abstract of a de- made to appear as strongly as pos- vise, sible. See Thomas v. People, 107 596 ABSTRACTS OP TITLE. [§ 570 of the estate, and to make partition of the property among them- selves, without any administration; and neither creditors nor debtors of thei estate have a right to complain.*® If, in pursuing this course, they sell portions of the property and make proper application of the proceeds to the payment of the debts, their acts are entitled to full faith and credit, as though they acted in the capacity of administrators or executors.*''' Where deeds are found upon the records which purport to have been executed by the heirs at law of a party in whom title is shown to have been vested, and no administration appears to, have been had upon the estate of such alleged ancestor, it is well to call at- tention to such latter fact by a brief note immediately following the heir's deed. Thus: Note. — We find no evidence of administration in Cook County, Illinois, on the estate of William Black, nor proiate of his will, if any. It will frequently happen that the ancestor was a non-resident and that administration was had upon his estate at the place of his late domicile. When such is the fact an exemplification of such proceedings should be procured and filed in the registry of deeds of the county where the land in question is situate. This will be sufficient to show descent, provided a finding of heirship appears, but in order to make an indefeasible title an ancillary administration should be had. The chief object of such ancillary administration is to bar the claims of creditors, and if the prop- erty is valuable this step should always be taken. § 571. Escheat. The latest taker, under the statute of descents, is the State. But the State is not to be deemed an heir within the ordinary meaning of the term, and takes, not as an heir, but rather because there are no heirs.** In such case, however, while the title would vest immediately in the State, yet, as the pre- sumption of law is that a decedent leaves heirs, no valid disposi- tion of the land could be effected until this presumption had been rebutted and the escheat declared in the manner prescribed by the 96 Taylor v. PhiUips, 30 Vt. 238; 97 Morris v. HaJbert, 36 Tex. 19. Babbitt v. Bowen, 33 Vt. 437; and 98 State v. Ames, 23 La. Ann. 69. see Brashear v. Connor, 29 La. Ann. 374. § 571] DESCENTS. 597 statute." The right of the State is established by a formal pro- ceeding generally called "inquest of oflSce," and where title is deduced through escheat this proceeding must be shown. Instances of title derived in this manner are, however, very rare. 99 Wilbur v. Tobey, 16 Pick. cord, but most of the disagreement (Mass.) 177; Me Miner, 143 Cal. grows out of the laws respecting 194, 76 Pae. 968 ; Se Malone, 21 aliens. As where the claimants are S. 0. 435; Wallahan v. Ingersoll, 117 aliens but under the law of the State 111. 123, 7 N. E. 519. Upon this sub- are without inheritable blood, jeot the authorities are not in ae- CHAPTER XXXI. ADVEESH TITLE. i 572. Adverse titles, generally con- sidered. i 573. Adyerse conveyances. i 574. The character of adverse pos- session. ^ i575. Color I of title. ■ 576. Adverse possession under color of title. i 577. Constructive possession. i 578. Adverse possession from user. j 579. Naked possession vpithout claim. § 580. Tacking. § 581. Possession as notice. § 582. Who may acquire adverse title. § 583. Eemainder-men. § 584. Eeversiouers. § 585. Tenants in common. § 586. Persons under disability. § 587. Married women. § 588. Adverse rights as against the State. § 589. Effect of adverse possession. § 590. Proof to support title. §572. Adverse Titles, Generally Considered. In examinations of title it is not uncommon to find two, or even three, conflicting claims of title evidenced by deeds or other matter of record, while inquiries in pais may further disclose claims of title and owner- ship founded upon actual occupation and possession, under claims of right resting upon unrecorded deeds, undisclosed descents, or prescriptive user. In some cases the adverse titles have a com- mon origin and all flow from the same source ; in others they originate through tax sales, or by reason of independent convey- ances from individuals. Sometimes the adverse titles are only seeming, being the results of mistakes in the draughting of instru- ments of conveyance. The questions raised by these conflicting claims are numerous and sometimes difScult of solution, and are among the most perplexing incidents upon which counsel are obliged to pass. §573, Adverse Conveyances. Under this head are grouped all conveyances emanating from independent sources and not con- nected with original grantor or forming a part of the regular course of title. These conveyances may consist of tax deeds and resulting conveyances which have not been merged into the com- mon ownership ; an assertion of title by one having no record evi- dence; and deeds which by erroneous descriptions do not convey the property intended, but cover other and entirely different par- cels. It is the practice of examiners to arrange these deeds as an S98 § 573] ADVERSE TITLE. 599 appendix to the chain, setting them out under the classified head, "adverse conveyances," and prefixing to them the statement, "we also find." Where an adverse title appears of record, followed by mesne conveyances, and eventually merging into the original title, they constitute part of the chain and are shown in the regular course. In eases of this kind the better way is to trace the title from the original grantor to the person in whom a perfect and unembar- rassed title is found; here stop and separate what follows by a broad dash, or, if desired, a prefatory note; then show the tax deed or other initial adverse conveyance and the conveyances re- sulting therefrom, until title is again found in the person pro- posed. Now separate the succeeding matter as before, and the next deed will commence a reunited and perfect chain. Isolated adverse conveyances, as has been stated, are frequently the result of error, and are often followed by curative deeds which demon- strate same. When the examiner can supply the necessary infor- mation an explanatory note should follow the adverse deed, thus: Note. — We find recorded in Book 500, page 260, a deed ietween the same parties, and hearing same date as the foregoing, conveying property in the northeast quarter of Sec. 10^ T. 2 N., B. 23 E., and wherein it is recited that said deed is given to correct an error in the description of land con- veyed by deed recorded in Book 490, page 359 (shown as No. 25 of this examination; or, shown above.) The foregoing suggestion is considered the better way to treat adverse conveyances, particularly when it can not be demon- strated that the adverse conveyance is the result of error and not the assertion of an independent title; yet examiners of un- doubted standing and ability have frequently deemed an explana- tory note, without any exhibition of the adverse deed, sufSicient for the purposes of the abstract. Should the later method be con- sidered desirable, a statement similar to the following may be made: Adverse Conveyances, In Book 185, page 537, is recorded, a deeA from John H. Fellows and wife to Lorenzo Dow, purporting to convey land described as: Beginning at the southeast corner south of the Indian 600 ABSTRACTS OF TITLE. [§ 573 Boundary Line of southeast quarter of Section 35, Town 40, Range 13; thence north on east line of said quarter section 40 rods; thence west 160 rods; thence south 40 rods; thence east 160 rods, containing 40 acres; and in Book 49 of Mort- gages, page 519, is recorded a mortgage from said Lorenzo Dow to James Parton, covering same premises; said mortgage is released on margin of record (as appears iy our indices). Fellows oivned land in Section 35, Town 41, Range 13, and we assume that said deeds ty Fellows and Dow were intended to convey land there and nst in Section 35, Town 40, Range 13, where he had no interest ivhatever. The foregoing example is giveli to show the methods that can be and sometimes are employed, rather than as a precedent to be followed, for, although the conveyances are sufficiently identified to furnish actual notice of their character and import to all per- sons perusing the abstract, and possibly sufficient explanation is given to warrant the assumption of the examiner, and, in the instance under consideration, the examiner has sufficiently dis- charged his duty to relieve himself of liability, yet the practice of showing positive transactions by notes, and of making assump- tions without expressed authority, is dangerous and often mislead- ing, and calculated to involve the examiner in serious complica- tions. Any and every conveyance, incumbrance, lien or charge which directly or by just implication affects, impairs or clouds the title, if a matter of record, and within the dates comprising the period of the search, should be shown affirmatively and without ex- pression of opinion as regards the legal effect of the instruments, or the real or supposed intention of the parties, and if the examiner is also the counsel, let the abstract and the opinion be separate and distinct papers. Where an isolated adverse deed is found, and there is nothing in the record by which its character can be determined, after showing the deed it is well to add some such note as the follow- ing: Note. — We find on record no conveyance to Robert Smith of Lot 10 in Block 12, of the subdivision described in the fore- going deed. Frequently, where lands are described by metes and bounds, deeds will be found which, by reason of erroneous computation of course and distance, encroach upon other lands adjoining. In § 6^4] Adverse titlE. 601 a proper sense these are adverse conveyances and should be shown. Where deeds of this character are found they should be set out in full with a supplementary note by the examiner. In case there is nothing in the record to suggest error on the part of the draughtsman the note should be sufSciently explicit to show the encroachment. This will be of much assistance to counsel in passing the title. The following is offered as a suggestion in treating a matter of this kind: Note. — The map of Brouni's Subdivision, as recorded in Book 5 of Plats, page 110, shows the West line of Block 3 to he 825.46 feet West of the East line of said subdivision. The East line of the tract described in the foregoing deed, being 12.41 chains (equal to 819.06 feet) West of the East line of said subdivision, would appear to cover the West 6.40 feet of Lots 6 and 7 in said Block 3. This would be sufficient to fully appraise any person perusing the abstract of the apparent encroachment and enable them to make proper requisitions for correction. § 574. Adverse Possession. An adverse title need not depend on documentary evidence, but may rest wholly on occupation, or on occupation coupled with other circumstances. This, of course, the abstract will not show and the facts which constitute such title are ascertained by inquiries in pais. It is a well established rule that a possession, to be adverse, must be so open, notorious and important as to give notice to par- ties interested that a claim of right is intended thereby; that the right of the true owner is invaded intentionally, and with a pur- pose to assert a claim of title adversely to his; and to furnish the basis of a substantial title, must extend in unbroken continuity over the period prescribed by the statute of limitations.^ This element of peaceful continuity is perhaps more distinctly mate- rial in conferring title by adverse possession than any other,^ 1 Carrol v. Gillien, 33 Ga. 539; 2 Tyler Adv. Enj. 907; Groft v. Beatty v. Mason, 30 Md. 409; Dixon Weekland, 34 Pa. 308; Williams v. T. Cook, 47 Miss. 220; Laramore v. Wallace, 78 N. G. 354; Shields v. Minish, 43 Ga. 282 ; Bowman v. Lee, Eoberts, 64 Ga. 370 ; Renter v. Stuck- 48 Mo. 335; Calhoun v. Cook, 9 Pa. art, 181 111. 529, 54 N. E. 1014. Poa- St. 226; Cahill v. Palmer, 45 N. Y. session of land once established by 484; Booth v. Small, 23 Iowa 177. material acts of visible, notorious 602 ABSTRACTS OP TITLE. [§ 574 and is a consideration of primary importance in all examinations. A statutory distinction is made in some States between a claim of title founded upon some written instrument or judgment, and an actual, continued occupation under claim of title, exclusive of any other right, but not founded upon any written instrument, judgment or decree; and the period of occupancy in the latter ease must be continued much longer than in the former. Thus, in the first instance, the title may become perfect and indefeasible at the end of ten years,^ while in the latter the period of legal memory must have run to warrant the presumption of an original valid entry, and the loss or destruction of the muniments that establish the occupant's right to the soil. The character of the possession, too, may be vastly different under the two claims; as, in the first instance, a partial occupancy only is required, such partial occupancy drawing to it constructively the possession of all of the land mentioned in the instrument under which the claim is made, while in the latter the adverse holding extends only to so much of the land as may have been actually occupied.* But in either event, to constitute a bar to the assertion of the legal title, the possession must be hostile," and not a mere trespass,* and must also be visible,'' continuous,^ notorious,® definite,^" and in- consistent with the claim of others,^^ while the claim of right accompanying such possession must not have originated in f raud.^^ ownership must be presumed to eon- pants in the same manner that lands tinue until open, notorious, adverse similarly situated are used, possession be proved to have been B Tumey v. Chamberlain, 15 111. taken by another: Clements v. Lam- 271; Thompson v. Felton, 54 Cal. kin, 34 Ark. 598. 547 ; Heller v. Cohen, 154 N. Y. 299, 3 Limitation periods are wholly 48 N. E. 527. statutory. The text states the gen- 6 Humbert v. Trinity Oh., 24 Wend, eral rule but in some States a shorter 587; Cahill v. Palmer, 45 N. Y. 479. period is prescribed. Thus, in Illi- 7 Irving v. Brownell, 11 HI. 402. nois possession under color of title 8 Jackson v. Bemer, 48 111. 203. with payment of taxes for seven years 9 MeClellau v. Kellogg, 17 HI. 498 ; will create an estoppel available Dixon v. Cook, 47 Miss. 220. against all persons not under disa- lOFugate v. Pierce, 49 Mo. 441; bility. Grube v. Wells, 34 Iowa, 148. 4 What acts are sufficient to con- 11 Ambrose v. Ealey, 58 111. 506 ; , stitute possession are matters of local Sparrow v. Hovey, 44 Mich. 63; statutory regulation, but, as a rule, Mauldin v. Cox, 67 Cal. 387, 7 Pac. there must be either cultivation or 804. improvement; protection by a sub- 12 Moody v. Moody, 16 Hun (N. stantial enclosure; and a use of the Y.), 189; Laramore v. Minish, 43 premises, if not enclosed, for the Ga. 282; Beaaley v. Howell, 117 Ala. supply of fuel, or husbandry, or the 499, 22 So. 989 ; Eoberts v. Bicharda, ordinary use thereof by the occu- 84 Me. 1, 24 AtL 425; Horn v. § 575] ABVERSE TITLE. 603 These are the universally recognized elements that must enter into every adverse holding, and unless they are present the settled principles of law require us to consider the true owner as con- structively in possession of the land to which he holds the record title." A clandestine entry or possession will never serve to set the statute in motion, for in order to bar the true owner from assert- ing his title, he must have actual or constructive notice of the instrument under which the adverse claimant enters, or knowledge, or the means of knowledge of such occupation and claim of right,^* and the entry must be made and the possession continued under such circTunstances as to enable suchtme owner, by the use of reasonable diligence to ascertain the fact of entry and the right and claim of the party making it.^^ Any substantial interruption of an adverse possession, before the lapse of the period required to constitute the statutory bar, Avill have the effect of restoring the seizin of the rightful owner of the land, and in order to set the statute in motion a new entry and disseizin will be necessary. ^^ It seems also, that the running of the statute may be interrupted if the possession ceases to be adverse, notwithstanding a possession in fact may still con- tinue.^' § 575. Color of Title. It is a general rule that where one enters upon land under a recorded deed, his entry and claim must be referred to that deed and measured by it.^* Such deed, though void in fact, gives a ' ' colorable title " ^* to the purchaser, and Metzger, 234 111. 240, 84 N. E. 893. Doe v. Thompson, 5 Cow. (N. Y.) The question whether one who holds 371. by color of title holds in good faith 14Fugate v. Pierce, 49 Mo. 441; or bad, depends upon the purpose Crispen v. Hannavan, 50 Mo. 536; with which he acquired the title re- Thompson v. Pioche, 44 Cal. 508; lied on, and the reliance placed upon Nowlin v. Eeynolds, 25 Gratt. (Va.) it. If the holder received it, know- 137; vFord v. Wilson, 35 Miss. 504. ing it to be worthless, or in fraud 16'Soule v. Barlow, 49 Vt. 329; of the owner's rights, it cannot be Brown v. Cockerell, 33 Ala. 151; Cos- said to be held in good faith. StiU, tello v. Edson, 44 Minn. 135, 46 N. many things that may be sufScient W. 299. to destroy the presumption of good ISEings v. WoodrufE, 43 Ark. 469; faith may be insufficient to prevent Costello v. Edson, 44 Minn. 135, 46 the deed from being color of title. N. W. 299. See Hardin v. Gouverneur, 69 111. 17 Stewart v. Stewart, 83 Wis. 364. 140; Hall v. Mooring, 27 La. Ann. 18 Stevens v. Brooks, 24 Wis. 326; 596. Crary v. Goodman, 22 N. W. 170. IS Bliss V. Johnson, 94 N. Y. 235; WEdgerton v. Bird, 6 Wis. 527; 604 ABSTRACTS OF TITLE. [§ 575 where it professes to convey the entire estate a claim and occu- pation under it creates an adverse possession as against all the world.^* What amounts to a color of title, is still an open and unsettled question, though numerous decisions defining its char- acter exist in all the States as well as in the federal courts, and notwithstanding that in a few instances it has been held that documentary evidence is not required to support a claim under color of title,^^ the weight of authority indicates that a written instrument is necessary, so far good in appearance as to be con- sistent with the idea of good faith, and purporting on its face to convey a title.^^ The definitions in the books, though widely divergent in many particulars, yet agree in the main on these points. A claim of heirship has been held to come within the term, the supposed inheritance forming the "color," for says Gibson, J., "one entering by a title depending on a void deed, would certainly be in by color of title, and it would be strange if an- other, entering under an erroneous belief that he is the legiti- mate heir of the person last seized should be deemed other- wise. " ^' A confusion, however, seems to exist, arising from the interchangeable use of the terms "color" and "claim" of title, which, as a matter of fact, may, and do, exist separate and independent of each other. To constitute the former, there must, as a rule, be a paper title, while the latter may exist wholly by parol.^* Possession under a claim of title, without a deed or other written instrument, limits the person so asserting his claim, to his actual enclosure or occupancy,*^ but when founded upon a claim and color of title, a constructive possession of the entire tract will follow the actual occupancy of any portion,"' provided the deed or other matter be of record.^'' Brooks V. Bruyn, 35 III. 394; Lind- 420; Teabout v. Daniels, 38 Iowa, say V. Fry, 25 Wis. 460; Beverly 158. V. Brooke, 9 Ga. 440; Hamflton v. 24 Hamilton v. Wright, 30 Iowa, Boggess, 63 Mo. 233. 486; Caagett v. Conlee, 16 Iowa, 487. 20 Hall V. Law, 102 V. S. 461; 25 Dills v. Hubbard, 21 111. 328. Bellv. Longworth, 6Ind. 273; Water- 26 Brooks v. Bruyn, 18 111. 539; man Hall v. Waterman, 220 111. 569, ^cott v. Elkins, 83 N. C. 424; Cole- 77 N B 142 ^^^^ '''• ^i^^^Ss, 90 111. 577; Little „, n rv J cA T>T Ani ^- Megquier, 2 Me. 176; Webb v. 21 Cooper V. Ord, 60 Mo. 431. , °^ ,„ „. ,»- , . ... ^,- „„„/ „ ' „„,,, „^^ Eiehardson, 42 Vt. 465; but if the 22 Baker v. Swan, 32 Md. 355; ^ ' . ^ ', „ ,„., true owner be m actual possession Kruse v. Wilson, 79 111. 240; Stark . ^ j, ^v. ^ ^ \- „„„ ' ' of any part of the lands, his con- V. Starr, 1 Sawyer, 20; Gittens v. gtructive seizin extends to all not Lowry, 15 Ga, 338. j^ f^^^^ occupied by the intruder: 23McCall V. Niely, 3 Watts (Pa.) Hunnicut v. Peyton, 102 tJ. S. 333. 72; and see Cooper v. Ord, 60 Mo. 27Tritt v. Eoberts, 64 Ga. 156. § 577] ADVEKSE TITLE. 605 § 576. Adverse Possession Under Color of Title. A valid title is not required in order to enable a party to rely upon adverse possession under the statute of limitations,^* nor is it necessary that he should trace title through a chain to any source.*' A deed which purports to convey a complete title will be sufficient to give color of title, although the grantor may, in fact, have only the rights of a mortgagee,^" or. lessee ; '^ or, if the deed was issued on an erroneous or void decree;'* or, in pursuance of a sale under an imperfectly executed trust ; '^ and generally, when followed by a continuous and uninterrupted possession for the entire statu- tory period, it will constitute an adverse holding, effective for all purposes, however groundless the supposed title may be.'* It is essential, however, that the lands claimed be fully identified or described in the instrument,'* for mere occupancy of land in virtue and under a claim of a grant which does not embrace it, is not adverse possession sufficient to constitute an estoppel or effect a transfer of title,'* and the claim must not be general, but specific.''' §577. Constructive Possession. Where title is asserted ad- versely under a claim of right, and by reason of occupancy and possession, it is a rule of universal application that the extent of the claim must be measured by the instrument under which the claim is made.'* When such instrument purports to convey an estate in fee in specific lands, although actual occupancy is only had of a portion of the premises described, the claimant is yet 28 Close V. Samm, 27 Iowa, 503 ; color of title on which to found a Jackson v. Woodruff, 1 Cow. 276; title by adverse possession. Water- Elliott V. Pearle, 10 Pet. 412; Ford man Hall v. Waterman, 220 111. 569, V. Wilson, 35 Miss. 504; Grant v. 77 N. E. 142, 4 L. B. A. (N. S.), Fowler, 39 N. H. 104. 776. ZSEawson v. Fox, 55 111. 200. 36 Lane v. Gould, 10 Barb. 254) Compare Hedges v. Paulin, 5 Biss. Jackson v. WoodrufE, 1 Cow. 276 ; 177. Fugate v. Pierce, 49 Mo. 441 ; Grube 80 Stevens v. Brooks, 24 Wis. 326. v. Wells, 34 Iowa, 148; Brown v. 31 Sands V. Hughes, 53 N. Y. 287. Coble, 72 N. C. 391. 82 Huls V. Bunten, 47 111. 396 ; 38 Laverty v. Moore, 33 N. Y. 658 ; Hinkley v. Green, 52 111. 223. Parish v. Coon, 40 Cal. 33; Grube SSGebhard V. Sattler, 40 Iowa, 153. v. Wells, 34 Iowa, 148; Wood v. 34 Ford V. Wilson, 35 Miss. 504; Banks, 14 N. H. 111. Grant v. Fowler, 39 N. H. 104; Ty- 37Crary v. Goodman, 22 N. Y. ler Adv. Enj., 907; Davis v. Easly, 170; Hallas v. Bell, 53 Barb. 247; 13 111. 192. A quit claim deed which Pepper v. O'Dowd, 39 Wis. 538. purports to convey the entire inter- 38 Washburn v. Cutter, 17 Minn, est in a parcel of land is suficient 361. 606 ABSTEACTS OP TITLE. [§ 577 constructively in- possession of the entire tract,^® his occupancy of a part being in contemplation of law the occupancy of every portion,*" but there can be no constructive possession without the color of title *^ afforded by some deed, instrument or preceeding purporting to convey the whole and defining boundaries, as well as actual possession of a part.*^ Nor will constructive possession be sufficient to confer title to any portion of the tract in the ad- verse seizin of another.*^ §578. Adverse Possession from User. An actual continued occupation of lands under a claim of title exclusive of any other right, although not founded on a written instrument, judgment or decree, is yet sufficient, if extending through the entire statutory period, to confer title to the portion so actually occupied.** It is immaterial to support title thus claimed whether there be a deed valid in form, or whether there be no deed,*^ and the party in possession may even know that his title is groundless,*^ but there must be a claim of title ; *'' an assertion of paramount right ; *^ and there must be actual occupancy measured by a dis- tinct, visible and marked possession.*' Permissive user can never, by any lapse of time and even though continuous and exclusive, ripen into a title to the fee, nor when the original entry was by consent of the owner, and no adverse claim of otvnership has been asserted.''" A question of this kind will sometime occur in the case of tenants in common or joint tenants, where one of them has been in the exclusive occupancy of the land for a long period. The general rule is, that the possession of one tenant is the pos- session of the others and in such eases there can be no adverse 39 Constructive possession has been Sand. Cli. (N. T.) 633 ; Jaekson v. defined to be a possession in law, "Wheat, 18 Johns. 40. without possession in fact: Hodges ' 47 Humbert v. Trinity Church, 24 T. Eddy, 38 Vt. 327; Welbom v. Wend. 587; Eannels v. Eannels, 52 Anderson, 37 Miss. 155. Mo. 108. 40 Brooks V. Bruyn, 18 HI. 539; 48 Howard v. Howard, 17 Barb. Crispeu v. Hannavau, 50 Mo. 536. 285; Jackson v. Johnson, 5 Cow. 74; 41 Wells V. Jaekson Manuf. Co., Bowman v. Lee, 48 Mo. 335. 48 N. H. 491. 49 Coming v. The Troy, etc., Fac- 42Eugate V. Pierce, 49 Mo. 441. tory, 44 N. Y. 577; Fugate v. Pierce, 43 Walsh T. Hill, 41 Cal. 571 ; Jack- 49 Mo. 441. son V. Vermylyea, 6 Cow. (N. Y.) BO Indianapolis, etc., E. E. Co. v. 677. Eoss, 47 Ind. 25; Cooper v. Mo- 44 Dills V. Hubbard, 21 111. 328; Bride, 4 Houst. (Del.) 461; Bedell Doe V. Eslava, 11 Ala. 102. v. Shaw, 59 N. Y. 46; HudsQn v. 45 Eannels v. Eannels, 52 Mo. 108. Putney, 14 W. Va. 561. Compare 46Bogardus v. Trinity Church, 4 Ford v. Holmes, 61 Ga. 419. § 580] ADVERSE TITLE. 607 possession unless there is an actual ouster or notice of a hostile claim given to the others. A presumption of a grant of his un- divided share from one tenant to another never arises from mere lapse of time and silent possession.*^ §579. Naked Possession Without Claim. "Squatters" or in- truders upon I lands acquire no rights by reason of their possession, as the gist of every adverse holding is, that it is accompanied by a claim of right, and a mere trespass can never ripen into a right, so as to set the statute in., motion, no matter how long con- tinued ; *^ nor will occupation by mistake or ignorance suffice to constitute an adverse holding,*^ although upon this point there is much confusion in the authorities. But an entry by one with- out color of title, or claim of right, may subsequently become ad- verse by his acquiring and asserting a claim of title; and the statute will begin to run from the time of such assertion.** § 580. Tacking. When several adverse claimants unite their several possessions into one continuous term, this is called "tack- ing." Where there are several successive adverse claimants, the last one may tack the possession of his predecessors to his own, so as to make a continuous adverse holding for the statutory period, provided there is a privity of possession between such oeciipants.** Such privity may arise from a parol bargain and sale of the possession of the land, followed by delivery thereof, as well as by a formal conveyance from one occupant to the Bl Logan V. Ward, 58 W. Va. 366, Kenney, 64 M«. 138. The text states 52 S. E. 398, 5 L. B. A. (N. S.) the generally received doctrine but the 156; Blaekahy v. Blackaby, 185 lU. oases, in many instances, make some 94, 56 N. E. 1053. But see, Dobbins fine distinctions, and the authorities V. Dobbins, 141 N. C. 210, 53 S. E. are not in fuU accord with respect to 870, 10 L. E. A. (N. S.) 185, where the rights acquired by one who en- an apparently contrary rule is an- closes and occupies land by mistake, nounced. See Warvelle on Ejectment, § 440, 52 Thompson v. Pioche, 44 Gal. 508 ; et seq. for a full discussion and col- Nowliu V. Eeynolds, 25 .Gratt. (Va.) lected eases. 137. Nor can the successive posses- 64 Hamilton v. Wright, 30 Iowa, sion of trespassers be connected to 480. make the bar of the statute: Baker 65 Shuffleton v. Nelson, 2 Sawyer V. Hale, 6 Baxter (Tenu.) 46; Jas. (C. Ct.), 540; Haynes v. Boardman, person v. Schamikow, 150 Fed. 571. 119 Mass. 414; Alexander v. Stewart, 63 Thomas v. Babb, 45 Mo. 384; 50 Vt. 87; McNeeley v. Langan, 22 Farish v. Coon, 40 Cal. 33; Grube Ohio St. 37. V. Wells, 34 Iowa, 148; Dow v. Me- 608 ABSTRACTS OF TITLE. [§ 580 other.5® Actual possession by prior occupants claiming title, al- though having no color of title, will always avail a subsequent occupant under color of title, claiming under such prior occu- pants, in making out a possessory title in himself.*'' The element of continuity must appear, however, and several successive but unconnected disseizins or adverse possessions, though amounting in the aggregate to twenty years, or such other period as the statute may prescribe, can not be tacked together to make a con- tinuous possession.** § 581. Possession as Notice. Possession, while it may not be ' ' nine points of the law, ' ' always has been, and will doubtless ever continue to be, prima facie evidence of the highest estate in land, to wit, a seizin in fee,*® and when open, notorious and visible, it has always been regarded as affording constructive notice to others of the occupant's title and equities.*" For this reason, counsel, in framing an opinion of title, should always direct the attention of his client to the rights of the person in possession, if any, or suggest that an inquiry in pais be made as to present occupancy. § 582. Who May Acquire Adverse Title. One who enters into possession of land in subordination to the title of another is estopped from denying that title, while he holds actually or pre- sumptively under it; this is a fundamental rule of universal ob- servance.*^ Yet a trustee may disavow and disclaim his trust ; *" a tenant the title of his landlord, after the expiration or surren- der of his lease ; *^ a purchaser the title of his vendor, after the 56Shufflelton v. Nelson, 2 Sawyer kins v. Swank, 43 Miss. 349; Hop- (C. Ct.), 540; Kruse v. Wilson, 79 pin v. Doty, 25 Wis. 573; O'Eourke 111. 233; Weber v. Anderson, 73 lU. v. O'Connor, 39 Cal. 442. 439. 61 Wilson v. James, 79 N. C. 349; 67 Bay v. Wilder, 47 Vt. 584. This Clarke v. Clarke, 51 Ala. 498; Hatch has been held to be the case of one v. Bullock, 57 N. H. 15. who held as heir of one who held 62 Jamison v. Perry, 38 Iowa, 14; adversely under mere claim of right: Commonwealth v. Clark, 119 Ky. 85, Teabout v. Daniels, 38 Iowa, 158. 83 S. W. 100. B8 ShufBeton v. Nelson, 2 Sawyer 63 Nellis v. Lathrop, 22 Wend. (N. (C. Ct.), 540; Marsh v. GrifBu, 53 Y.) 121; Mattis v. Eobinson, 1 Neb. Ga. 320; Pegues v. Warley, 14 S. 5. Or by rescinding the lease and C. 180. claiming a new title: Weichselbaum 89 Gulf E. K. Co. V. Owen, 8 Kan. v. Curlett, 20 Kan. 709; as where 409- the tenant purchased the property at eOEedden v. Miller, 95 111. 336; tax sale. Pinney v. Fellows, 15 Vt. 525; Per- § 583] ADVERSE TITLE. 609 breach of his contract by the latter; and a tenant in common, the title of his co-tenant ; ^* and drive the respective owners and claimants to their action of ejectment within the period of the statute of limitations. In like manner one who has possession of land under an agreement to purchase, which contemplates a con- tinuing right of possession while the contract is being performed, and an absolute right of possession by virtue of its performance, may, on performance, deny the title of the vendor ; and thereafter his possession will be adverse.^* A grantor remaining in possession would seem to be effectu- ally estopped by the covenants of his deed, and such has been held to be the law,^* yet in a number of instances a grantor who conveys by quit-claim deed only, by remaining iu possession of the property and asserting a hostile claim, has been permitted to acquire a title against his grantee by virtue of the statute of limi- tations ; *'' while some courts have even held that a grantor with warranty may, subsequent to the delivery of his grant, originate an adverse possession, and is not estopped from asserting the same by his covenant of warranty.®* In any event the possession of the vendor cannot be ignored even though he may have con- veyed with warranty, and where he continues to occupy the premises all persons acquiring title from his grantee are charge- able with notice of the claims of the grantor and of his equitable rights.^ §583. Bemainder-men. It is a well established principle that the statutes of limitation do not commence to run until the right of action or right of entry accrues. It therefore does not com- mence to run against a remainder-man until the termination of the precedent estate," when the deed creating such prior estate 61 St. Peter's Church v. Bragaw, 67 Borland v. Magilton, 47 Cal. 144 N. C. 126, 56 S. E. 688. But 485. this rule does not apply to tenants 68 Sherman v. Kane, 86 N. Y. 57. by the entirety. AUes v Lyon, 216 69 White v. White, 89 111. 460; Pa. 6Q4, 66 Atl. 81. Ford v. Marshall, 107 111. 136. 85 Cajlino v. Decker, 38 Conn. 262 ; 70 Christie v. Gage, 71 N. T. 189 ; Stark V. Starr, 1 Sawyer (C. Ct.), Dugan v. FoUett, 100 111. 581; 15. The executed contract then be- Fogal v. Perro, 10 Bos. (N. Y.) comesi a sale and not merely an 100 ; Carpenter v. Denoon, 29 Ohio agreement to purchase: Eidgeway v. St. 379; Gernet v. Lynn, 31 Pa. St. HoUiday, 59 Mo. 444. 94. 66 Van Keuren v. B. E. Co., 38 N. J. L. 165; Blake v. O'Neal, 63 W. Va. 483, 61 S. E. 410. Warvelle Abstracts — 39 610 ABSTRACTS OF TITLE. [§ 583 is of record, or the party in possession has notice of its existence. This, however, applies only to legal estates. Where the estate in remainder is equitable an adverse possession may be acquired under claim of legal title and the remainder-man 's rights be barred by lapse of time.''^ But when a party has had the uninterrupted and undisputed possession of land for the statutory period, and during that time has paid all taxes legally assessed thereon, and has had neither actual nor constructive notice of a prior unre- corded conveyance creating a life estate with a remainder over to others, such possession and payment of taxes by him will be a bar to a recovery by such remainder-man, even though the full period of the statute has not elapsed since the termination of the life estate, and notwithstanding the fact, that the party so assert- ing title is, by the terms of such undisclosed deed, made a tenant in common with such remainder -man.'* § 584. Reversioners. As against a reversioner there can be no adverse possession. It can only exist against one entitled to possession.''* § 585. Tenants in Common. The general rule is, that the statute of limitations does not run as between tenants in common, for the reason, in part, that the possession of one, in contemplation of law, is the possession of aU,'* and this is especially so when all the parties derive title through the same deed or conveyance.'" But if a tenant in common conveys the whole tract, by a deed which purports to include the entire estate, his grantee, if in pos- session, will hold adversely to the others,''^ while the possession of one of several tenants may become adverse, when his acts amount to an exclusion of his co-tenants.'''' 71 See, Commonwealth v. Clark, 119 Ware, 67 Mo. 74; Aquirre v. Alex- Ky. 85, 83 S. W. iOO. ander, 58 Cal. 21. 72Dugan V. PoUett, 100 111. 581. 76 Dugan v. FoUett, 100 111. 581. 73 Clark V. Huges, 13 Barb. 147 ; 76 Clapp v. Bromagham, 9 Cow. Gernet v. Lynn, 31 Pa. St. 94; Bay- 530; Florence v. Hopkins, 46 N. Y. mond V. Haider, 2 Gush. (Mass.) 182; Rlgg v. Fuller, 54 Ala. 141; 269; Webster v. Pittsburg, etc. Ry. Faulke v. Bond, 41 N. J. L. 527. Co., 78 Ohio St. 87, 84 N. E. 592, 77 Florence v. Hopkins, 46 N. Y. 15 L. R. A. (N. S.) 1154. The text 182; Dobbins v. Dobbins, 141 N. C. states the general rule but excep- 210, 53 S. E. 870. Though adverse tional cases may at times militate possession and disseizin may not be against it. in all particulars identical, their ef- 74 Dugan V. FoUett, 100 111. 581; feet is the same for the purpose of Ang. on Lim. §422; Florence any it will furnish much de- sired information and be a practical help and guide. The methodical preparation of abstracts of title in the United States has not yet passed the experimental stage; English precedents furnish but little assistance, being founded upon a system that 82Dodd V. Williams, 3 Mo. App. 83 Savings Bank v. Ward, 100 XJ. 278; Chase v. Heaney, 70 111. 368; S. 195; Buckley v. Gray, 110 Cal. Clark V. Marshall, 34 Mo. 429; Bank 339. V. Ward, 100 TT. S. 195. 84 Buckley v. Gray, 110 Cal. 339. § 620] OPINIONS OF TITLE. 657 never had any practical application in this country, and, by rea- son of the peculiar genius of our institutions, never can have. By slow degrees we are formulating a system essentially our own, and if this work, by precept or suggestion, shall be instrumental in assisting in this formation, in discouraging false methods, and in afEording a light on obscure points that shall aid the young and inexperienced, the highest desire of the writer, in relation thereto, will be satisfied. Warvelle Abstracts — 43 APPENDIX. NEW ENGLAND ABSTRACTS. A peculiar system of abstract making seems to prevail in the New England States, or certain of them. This system is appar- ently an offshoot from that now, or formerly, practiced by the English conveyancers, and resembles, in many respects, the English abstracts alluded to in the body of this work, particularly in "marginal" divisions. It is not the same, however, as that ex- pounded and illustrated by Lee, Moore, and other late English writers, but is probably a variant of the same general stock. There, as in England, though one plan is to show everything relating to the title of the estate under consideration, another, and the one apparently in popular use, is to commence with some early deed as the root of the title, and insert after it a list of the conveyances made by the grantee to the point or time when the estate passes out of him, and so continue with successive grantees until the present owner is reached.^ The instruments are very fairly and fully abstracted, but the examiner indulges in a wealth of abbreviation unknown to any , other part of the country. It is arranged very systematically, and, probably, to those who are in the habit of examining such abstracts, conveniently. The name of the grantor, and the date from which his title is traced, is written at the top of the page and over the columns or margins, which are then filled up as follows: The first contains the dates, which include the years of the indexes, and dates of execution, acknowledgment and registration ; the name of the officer taking the acknowledgment, and the initials of each grantor, where there are more than one, to designate his separate conveyances. Following this comes the book and page of the record in two narrow columns. In the next column are inserted the names of the grantees ; consideration ; notes of dower and home- 1 See appendix by M. H. Durgin, to Curtis ' well known ' ' American Conveyancer." (Boston, 1871.) 659 660 ABSTRACTS OF TITLE. stead; words of grant; covenants; and mention of formal defects. In the last, or right hand column, are placed the descriptions; notes of incumbrances; conditions, recitals, etc. As a further ex- planation an example is appended : IIIBAM W. SMITH, GRANTOB FROM 1822. 1822 to 1835. None. 1835-7. 355 210 Wm. Jackson. Mtg. $1,000, 2 yrs. (Descrip- tion.) Nov. iO, 1837. Can- celed on margin by Wm. Jackson. 1838-9. None. 1839. 493 121 J. L. Woodman A certain parcel of Id. in Stan- Nov. 20. $5,000. ford, on sly. side of Eush St. " 21. contg. 15 acs. m. or 1. " 21. Emma, rel. d. Beg. at S. W. cor. on Rush St. Jno. Smith g. g. b. s. & conv. at Id. of 0. S. Newell, the. J. P. - Wty. free. rung. N. E. by sd. st. as fence now stands 50 rds. 9 Iks. to a stone standing by Id. of J. Smith, the. rung. N. 90° E. 15 rds., etc. Reservg. privilege to pass, etc. The next conveyance by J. L. Woodman would place his name at the head of the page as grantor, and the procedure would be the same until he finally parted with title. All the conveyances made by the grantor during the period in which he held title are noted, whether they include the premises in question or not, but if of other land, reference only is made to them, as "Id. in Charles- town;" nor is any mention made of defects, dates, etc. ANALYSIS OF ABSTRACT. Mr. Lee, in the appendix to his valuable work on abstracts, gives the following form of an analysis of an abstract, which may be of service to American practitioners by way of suggestion. APPENDIX. 661 ANALYSIS OF ABSTRACT. Estate in Foxbuiy, County of Devon. 1 manor. 1 capital messuage and cottage. 100 acres of land and right of common. Observations. Date, Parties, Parcels. Uses, Trusts, Limitations, etc. Terms, Incum- brances. Certificates of the baptisms or births of the children of Mr. and Mrs. Smith, should be pro d u c e d, and a decla- ration under the A b o 1 i- tion of Oaths Act made by a person re- lated to or a c q u ainted with the fam- ily, stating that there are but four children of the ra a r- riage, should be supplied; and if Mrs. Smith be now dead, a certificate of her burial should be furnished. 1773. March 1. John Jones conveys Manor 1 House I To Abraham Ashford in 300 acres | fee. Common ■ right ... J Use of Ann Downes for life. — as Henry Smith shall appoint. — of Henry^ Smith in fee. . 1790. May 8. Henry Smith ap- points same prem- ises to } Use of H. Thompson 1,000 years. — of John Young in fee. Trust for A. S. for life. for H. Smith's children in fee. 1000 years in H. Thomp- son to raise 2,000 I. for portions. 1806. Jan. 6. John Young, Ann T Smith, and four I to Richard Jenkins in children, release | fee. same premises. J Subject to 1,000 years, and right of Mrs. Smith to live in cot- tage for life. 662 ABSTRACTS OF TITLE. Observations. 1815. June 18. Proved 20th July, 1816. Richard Jenkins Date, Parties, Parcels. Uses, Trusts, Limitations, etc. Terms, In- cumbrances. wills — Manor, house, cot- tage, 100 acres and common right. to J. Morris and E. Simp- son. Trust for testator's wife for life, remainder. for testator's children in fee. Note. — 200 acres sold by Mr. Jenkins during his life. 2,0001. paid oiT. Term of 1,000 years. A s- signed to Oli- ver Pearson, in trust to at- tend for par- t i e s entitled under Jenkins' will. ORDER FOB ABSTRACT. It is now customary for the client to make and deliver a formal written order when applying for an abstract of title. Such a course serves to obviate many questions that might arise where the order is given verbally. The following, taken from actual practice, will serve as an example : No ORDEB rOB EXAMINATION OF TITLE. Chicago, 188 HADDOCK, VALLETTE & RICKCORDS, 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 fol- lowing described land, in Cook County, Illinois: (Here insert the description of the property.) (Signed) . . No Street. LAND MEASURES. Tn the preparation, as well as in the examination of abstracts of title, numerous occasions will arise for the computation of areas, the measurement of lines and distances, and other matters calling for calculations based upon the different methods now or formerly in vogue for land parceling. To assist the practitioner by affording a ready reference to the standard tables of land measurement, the following are inserted. The measures of extension sanctioned by law in the United States, conform to the standard established by the English government, APPENDIX. 663 which is based upon the phenomenon of nature, that the force of gravity is constant at the same point of the earth's surface and con- sequently, that the length of a pendulum which oscillates a certain number of times, in a given period, is also constant. Had this unit been known before the adoption and use of a system of measures, it would have formed the natural unit for division, and been the natural base of the system of linear measure. But the foot and inch had long been used as units of linear measure; and hence, the length of the pendulum, the new and invariable standard, was expressed in terms of the known units, and found to be equal to 39.1393 inches. The new unit was therefore declared invariable — to contain 39.1393 equal parts, each of which was called an inch; 12 of these parts were declared by act of Parliament to be a standard foot, and 36 of them, an Imperial yard. The Imperial yard and the standard foot are marked upon a brass bar, at the temperature of 62%°, and these are the linear measures from which those in general use in this country are taken. TABLE OF LINEAR MEASUBE. 12 inches (in.) make 1 foot, marked ft. 3 feet " 1 yard, " yd. 5i yd., or 16i ft., <" 1 rod, " rd. 40 rods. " 1 furlong, marked fur. 8 furlongs, or 320 rd., " 1 statute mile, " mi. UNIT EQUIVALENTS. ft. in. yd. 1 = 12 rd. 1 = 3 = 36 fur. 1 = 5i = 16i = 198 mi. 1 = 40 = 220 = 660 = 7920 1 = 8 = 320 = 1760 = 5280 = 63360 TABLE OF SQUARE MEASURE. 144 square inches (sq. in. ) make 1 square foot marked . sq. ft. 9 square feet 1 square yard. ....sq. yd. 30i square yards 1 square rod sq. rd. 40 square rods 1 rood, " R. 4 roods 1 acre. " A. 640 acres 1 square mile, . . . .sq. mi. UNIT EQUIVALENTS. sq. ft. sq. in. sq. yd. 1 = 144 sq. rd. 1 - 9 = 1296 B. 30i - 272i = 39204 A. 1 — 40 — 1210 = 10890 = 1568160 sq. mi. 1 1 = 640 = 4 — 160 = 4840 = 43560 = 6272640 — 2560 = 102400 = 3097G0O = 27878400 ^ 4014489600 surveyor's measure. In the primary division of the public lands, and usually iu all subsequent subdivisions of considerable area, the measurements 664 ABSTEACTS 01' TITLE. are made with what is called a Gunter's chain, which consists of a metal chain 66 feet long and composed of 100 links. The chain employed by the government in the execution of the public surveys is, however, 66.06 in length. The object in adding six-hundredths of a foot to the 66 feet of the ordinary chain is to assure thereby that 66 feet will be set off upon the earth's surface without the application .of a greater strain than about twenty pounds by the ehainmen, thus providing for loss by vertical curvature of the chain, and at the same time avoiding the uncertain results attend- ing the application of strains taxing its elasticity. TABLE OF LINEAR MEASURE. 7.92 inches ( in. ) make 1 link 1 25 links " 1 rod rd. 4 rods, or 66 feet, " 1 chain eh. 80 chains " 1 mile mi. UNIT EQUIVALENTS. 1. in. rd. 1 = 7.92 ch. 1 = 25 = 198 mi. 1 = 4 = 100 = 792 1 80 = 320 = 8000 — 63360 In practice rods are now seldom used, distances being taken in chains and links. The foregoing table is used in measuring lines and distances. In the computation of areas or in ascer- taining the contents of land, the following table is employed: TABLE OF SQUARE MEASURE. 625 square links (sq. 1.) make 1 pole, P. 16 poles " 1 square chain, sq. ch. 10 square chains " 1 acre, A. 640 acres " 1 square mile sq. mi. 36 square miles (6 mi. square) " 1 township, Tp. UNIT EQUIVALENTS. P. sq. 1. sq. ch. =: 1 = 625 A. 1 = 16 =: 1000 sq.mi. 1 = 10 = 160 = 100000 Tp. 1 = 640 = 6400 = 102400 = 64000000 1 = 36 = 23040 =J 230400 = 3686400 = 2304000000 The contents of land are usually estimated in miles, acres, and hundredths. As a further aid in arriving at a correct understanding of the dimensions of divisions made according to the government survey, a diagram of a quarter section of land is herewith appended, the distances being marked in feet, rods and chains. The government surveys of all principal base, meridian and township lines are made with an instrument operating independ- APPENDIX. 665 ently of the magnetic needle. The solar compass or some other means of equal utility must, of necessity, be used in such cases. But < 40 chains --> (A o s 1320 ft. i * '" 40 ac. « 00 ^ 80 rds. 80 acs. 20 chs. 10 chs. gS >j ? C '* lOacs. >© 10 chs. 20 acs. 660 ft. 5 chs. 5acs. 20 rds. 5 acs. 330 ft. I i mile where the needle can be relied on the ordinary surveyor's compass is used in subdividing and meandering. EULES FOE MEASUEING LAND. The following rules will be found of service in many cases that may arise in land parceling, particularly in the computation of areas. To find the area of a four-sided tract, whose sides are perpendic- ular to each other (called a rectangle) : Multiply the length by .the breadth, and the product will be the area. To find the area of a four-sided tract, whose opposite sides are parallel, but whose angles are not necessarily right angles' (called a parallelogram) : Multiply the base by the perpendicular height, and the product will be the area. 666 ABSTRACTS OF TITLE. To find the area of a three-sided tract (called a triangle) : Multiply the base hy half of the perpendicular height, and the product will he the area. To find the area of a four-sided tract, having two of its sides parallel (called a trapezoid) -. Multiply half the sum of the two parallel sides by the perpen- dicular distance between those sides, and the product will be the area. To ascertain the contents of a tract, bounded by four straight lines, of which no two are parallel to each other (called a trape- zium), and the length of each line is ascertained, and the two opposite angles are supplements of each other : Add all the four sides together, and halve their surni; subtract separately each side from that sum; and the four remainders thus obtained multiply continually together, and extract ■ the square root of the last product. The result will be the contents or area of the tract. Or, divide the tract by lines into triangles and trapezoids, and ascertain and add together their several areas, — the sum of which will be the area of the tract proposed. Land bounded by an irregular line — as a stream of water, or a winding road — is measured as follows ; viz. : Draw a base line as near as practicable to the actual line of the road or stream; and at different places in the base line, equi- distant from, each other, take the distance to the line of the stream or road. Add the- sum of all the intermediate lines (or breadths) to half the sum of the first breadth and last breadth, and multiply the sum thus obtained by the common distance be- tween the breadths. The result will be the area of the land in question. Should the breadths be measured at unequal distances on the base line, Ada' all the breadths together, and divide their amount by the number of breadths for the mean breadth, and multiply the quotient so obtained by the length of the base line. SPANISH-FRENCH LAND MEASURES. During the administration of the Spanish-French governors, in the province of Louisiana, the granting power of the royal domain was freely exercised, and the grants so made lie at the APPENDIX. 667 foundation of many of the early titles in the States subsequentPy formed from that province.* The surveys of these grants are found in many places wrought in with our public surveys, presenting, as it were, curious mosaic irregularities in striking contrast with the simple rectangular sys- tem adopted by the national government. They illustrate, in a forcible manner, the peculiar agrarian systems of the governments which preceded us, in the diversified, irregular forms of grants, from urban in-lots, and out-lots, rural tracts of inconsiderable dimensions, and from thence increasing in extent to 7,056 arpens or a league square, the "arpen" of Paris being the standard of provincial measurement. The following is a comparative statement adopted by the sur- veyor general's office at St. Louis, Mo., of the land measures of the United States, and the French measures formerly used in the province of Louisiana: Linear Measure. French United States. Chains. Links. 1 perch equals 0. 29. ICG 2 0. 58.333 3 0. 87.5 4 1. 16.661 5 1. 45.833 6 1. 75. 7 2. 04.166 8 2. 33.333 9 2. 62.5 10 or one arpent lineal. . .2. 91.666 2 arpents 5. 83.333 3 8. 75 4 11. 66.666 5 14. 58.333 6 17. 50. 7 20. 41.666 8 23. 33.333 9 26. 25. 10 29. 16.666 100 291. 66.666 lOOO 2916. 66.660 Side of a league square 84 arpents equal 2.45 chains. Side of a mile square. 27 arpents equal 80 chains. Superficial Measure. 2 The larger part of the southern and western portions of the pres- French. United States. Arpents. Acres. 1 equivalent to 0.85 07 2 1.70 14 3 2.55 21 4 3.40 28 5 4.25 35 '6 3.10 42 7 5.93 49 8 6.80 56 9 7.65 63 10 8.50 69 100 85.06 94 1000 850.69 44 10,000 8,506.94 44 Apents. Perches Acres. 1 17.551 1 2 33.102 2 3 52.6531 •. .3 4 70.204 4 5 87.755 5 7 05.306 6 8 22.857 7 9 40.804 8 10 57.959 9 11 75,510 10 117 55.102 100 1.175 51.020 1000 11.755 10.204 10,000 Square league. A league square contains 7,056 arpents or 6,002.50 acres. Square mile. 725 arpents 32.64 perches equal 640 acres. ent territory of the United States was formerly under the dominion of 668 ABSTRACTS OF TITLE. SPANISH-MEXICAN LAND MEASURES. By the treaty of Guadalupe Hidalgo, ratified May 30, 1848, and the treaty commonly known as the Gadsden Purchase, rati- fied June 30, 1854, the Mexican Republic ceded to the United States the territory embraced within the present limits of the States of California, Nevada, Utah and Arizona, and parts of the States of Colorado, New Mexico and Wyoming. Scattered over this district there exist many ancient Spanish-Mexican titles, municipal and rural, which, under the terms of the treaties, are recognized and protected by the government. These claims and grants are for irregular shaped tracts, illy defined, and bounded mainly by natural objects. They were made for agriculture, mining, stock-raising, and colonization, and in all sizes, from a village lot to a million-acre tract. Upon confirmation it is neces- sary to have these titles traced out and fixed, by survey or re- survey, according to the peculiarities of the system of the govern- ment from which they originated, and incidentally they must frequently be referred to in subsequent conveyances and subdi- visions. The Surveyor General of California, in a report made in 1851, states that all grants in California, made either by the Spanish government, or that of Mexico, refer to the "vara" of Mexico as Spain and France, and both govern- lie domain, subjeet to the survey, ments made numerous grants and settlement and disposition laws of concessions both to companies and the United States when the same individuals. In 1803 the province of were extended over the several po- Louisiana was ceded by France to litical divisions from time to time the United States, though it was by separate acts of Congress. But not until many years afterward that all claims which had their origin in the boundaries of the province were some form of concession from a for- definitely established. eign government before the aequisi- The Louisiana Purchase was erected tion of the territory by the United into two territories by act of Con- States are reeogpized and protected gress, March 26, 1804, one called and after confirmation the titles to the Territory of Orleans and the lands so acquired have much of the other the District of Louisiana. The stability of titles derived from the Territory of Orleans, on April 30, United States. 1812, became the State of Louisiana. The grants by the Spanish and The entire Louisiana purchase, be- French governors lie mainly within ing five times greater than the area what are now the States of Louis- of France, viz., 201,900 square miles, iana, Missouri and Iowa. In the excepting certain grants made by State of Louisiana alone there are French and Spanish authorities, and upward of ten thousand confirmed other legal exceptions, became pub- private laud claims. APPENDIX. 669 the measure of length, and that by common consent, in California, that measure is considered as exactly equivalent to thirty-three American inches.' It would seem that another length is given to the "vara" by Mr. Alexander,* who states its length to be equal to 92.741 of the American yard. In practice, however, the Gen- eral Land Office has sanctioned the recognition, in California, of the Mexican vara as being equivalent to thirty-three American inches. The following is a table of land measures adopted by the Mexi- can government :* . . ^ ; Names of the measures. Sitio de ganado moyer Criadero de ganado moyer . Sitio de ganado menor Criadero de ganado menor. Caballeria de tierra Media caballeria Cuarto caballeria o Suerte de tierra Fenega de sembraduro de maiz Sala para casa Fundo legal para pueblos. . ■ . Figures of the measures. Square do ....do ....do Right-a n g 1 e d parallelogram. Square Right-a n g 1 e d parallelogram. ..do. Square ..do. 5 « > C 3.5 V l-l 6,000 2,600 3,333 J^ 1,666J4 1,104 562 376 50 1,200 m 6,000 2,600 3,333^ 1,666J^ 562 652 276 184 60 1,200 25,000,000 6,250,000 11,111,111'A 2,777,777V» 609,408 304,704 162,363 56,784 2,600 1,440,000 41.023 10,255 18,233 4,568 1 Vi 0,004 2.036 The Mexican vara is the unit of all the measures of length, the pattern and size of which are taken from the Castilian vara of the mark of Burgos, and is the legal vara used in the Mexican repub- lic. Fifty Mexican varas make a measure which is called cordel, which instrument is used in measuring lands. The legal league contains 100 cordels, or 5,000 varas, which is found by multiplying by 100 the 50 varas contained in a cordel. The league is divided into two halves and four quarters, this being the only division made of it. Half a league contains 2,500 varas, and a quarter of a league 1,250 varas. Anciently, the Mexican league was divided into three miles, the mile into a thousand paces of Solomon, and one of these paces into five-thirds of g. Mexican vara; consequently the league had 3,000 paces of Solomon. This division is recognized in legal affairs, but has been a very long 3Eep. Genl. Land Office, 1854. 4 Dictionary of Weights and Meas- ures. B Translated from the "Ordenan- zas de Tierras y Agnas" by Galvan, Ed. 1884; and see Ex. Doc. No. 17, 1st Session, 31st Congress, House. 670 ABSTRACTS OF TITLE. time in disuse — the same as the pace of Solomon, which in those days was called vara, and was used for measuring lands. The mark was equivalent to two varas and seven-eighths — that is, eight marks containing twenty-three varas — and was used for measur- ing lands. The United States owned no public land in Texas. Upon its admission into the Union the title to the soil was retained by the State and its lands were disposed of under its own laws. The methods of land parceling followed, in most respects, those in vogue while the State was a part of the Mexican Republic. A table of land measures is appended. APPENDIX. 671 to h9 OS ? X 3 2. ^ J-" 03 Ol ^ CS GO io CJ! I— « (^ bO rf*- CO GO 05 ** "kJ ^N) W "ui "o O 'o NJCHOOh- '.-'[■OOiCOOOOO en ^Ui ^ ^ OS J.^ JO Ui O CO o o o o Oi 00 OS To ^Pk "co lo Oi o ""w o o "o "o >f^OOOOOOOOtJOOOO cnoooooooowoooo w onxcoajtnaJajMOiOJ ^ ^ Ed U ^ ^ fa !0 !D p ^ "> ns, oj ro CD fp -si ^ -- gSM i»+^ tOH i-< ^ 2 o o o E S- ti E3 3 ' UH toH I— t 1^ K-i t— ' W OS CO ^O t— < rf*. 00 OS Kt rf- CS CO h-'OOOOOOC ;s p ts 3 rr » ^ m aq CTQ aq r, U5 c 3 S = ■1 S fS •D fC ■D fi0 9 1 II 1 1 1 1 il 1— ' t— < ^ o a» o --I O '-J o --J 3S 4^ X) -4 «i )— ' >— ' to (fk- I— • en ^^ pppppppppppppp S '-l-i'-J'-l.-l-l-l'-f-l'-l'-J'-St-JHt M It will be observed that the Texan vara is slightly longer than the standard recognized in California and adopted by the General Laud Office. TABLE OF CASES [the references are to pages.] Abbot V. "Wilbur, 40. Abbott V. Holway, Adm'r, 246, 247, 248. Abbott V. Smelting Co., 276. Abbott V. Semple, 527. Abbott V. Doling, 558, 567. Abell \. La(;hrop, 23. Abercrombie v. Abercrombie, 408. Abney v. Moore, 247. Acer V. Westcott, 64, 193. Actor V. Hoyt, 449. Adam v. Norris, 156. Adams v. Morse, 194. Adams v. Buchanan, 303. Adams v. Jones, 586. Adams v. Prothingham, 46. Adams v. Adams, 519. Adams v. Medsker, 214. Adams v. Cowles, 526. Adington v. Hefner, 397. Adrain v. Shaw, 23. Aetna Ins. Co. v. Hesser, 471, 488. Agricultural Ass'n v. Neill, 210. Agricultural Society v. Paddock, 279. Aiken v. B. E. Co., 374. Aiken v. Morse, 583. Akers v. Akers, 414. Akers v. Clark, 411. Albee v. Ward, 509. Alexander v. Tolleston Club, 277. Alexander v. Stewart, 607. Alexander v. State, 44. Allaire v. Allaire, 441-444. AUard v. Lane, 398. Allen V. Hawley, 22. Allen V. Bates, 191. Allen V. Holton, 239. Allen y. Sales, 302. Allen V. Woodruff, 344. Allen V. Culver, 352. Allen V. Loring, 452. Allen V. Morris, 458. Allen V. Cole, 497. Allen V. Poole, 582. Allen V. McGaughey, 493. Allen V. Smith, 534. Allen y. Armstrong, 564, 565. Alexander v. Alexander, 208. Alexa^der v. Tolleston Club, 277. AUie V. Schmitz, 537. Allison V. Hunter, 141. Allison V. Thomas, 485. Alhnan v. Taylor, 501, 502. Almy V. Hunt, 450. Almond v. Almond, 460. Alt V. Banholzer, 546. Altes V. Hinckler, 554. Alton V. Transportation Co., 230. Alton Ins. Co. v. Buckmaater, 535. AUwood V. Mansfield, 458. Am. Bible Society v. Sherwood, 279. Am. Emigrant Co. v. dark, 188. Ambrose v. Ealey, 602. Amesti v. Castro, 51, 535. Amphlet v. Hibbard, 385, 386. Anderson v. McGowan, 320. Anderson v. Culbert, 386. Anderson v. Grable, 430. Anderson y. Connell, 453. Anderson y. Arnette, 527. Anderson v. Tuck, 470. Anderson y. Kerns Draining Co., 551. Andrews y. Applegate, 417. Annan y. Baker, 567, 569. Anthony y. Taylor, 488. Anthony y. Bank, 281. Apperson y. Burgett, 469. Apperson v. Bolton, 442. Appleby's Estate, 262. Applegate y. Edwards, 468. Aquire y. Alexander, 610. Arbuekle v. Ward, All. Waryelle Abs. — 43 673 674 TABLE OP CASES. [THE RErERENCES Armstrong v. Stovall, 214. Armstrong v. Boss, 267. Armstrong v. I^ear, 440. Armentrout's Exr. v. Gibbons, 376, 377. Arnold v. Arnold, 263. Arnold v. Chesebrough, 591. Arnold v. Nye, 476. Arnold & Co. v. Earner, 8. Arthur v. Anderson, 214. Arthur v. Cole, 425. Arthur v. Webster, 182, 274. Ashburn v. Spivey, 71. Ashcroft V. Ey. Co., 195. Askew V. Dupree, 591. Aston V. Galloway, 431. ABtor V. Hoyt, 370. Astrom v. Hammond, 113. Atherton v. Fowler, 115. Atkins V. Kinman, 300, 566. Atkins V. Hinman, 301, 554. Atkins V. Horde, 534. Atkinson v. Greaves, 400. Atlanta Mills v. Mason, 27. Atlanta Dock Co. v. Leavitt, 41, 197. Attorney General v. Garri«on, 297. Attorney General v. Plankroad Co., 552. Atwood V. Wright, 493. Augustine v. Doud, 500. Aultman v. Obermeyer, 265. Austin V. Cambridgeport, 354, 426. Austin V. Bainter, 530. Austin V. Wohler, 639. Austin V. Bailey, 576. Austin V. Downer, 376. Aven V. Beekom, 301. Avery v. Babcoek, 472. Ayer v. Ayer, 420. Ayers v. Hays, 395, 401. Ayling v. Kramer, 197. Babbidge v. Astoria, 360. Babbit v. Bowen, 596. Babowski v. Babowski, 481. Babcoek v. Jones, 471. Baehman v. Sepulveda, 482. Bacon v. Van Schoonhover, 395, 398. Badger v. Daniel, 458. Bangel v. Brodrick, 28, 29, 112, 141. Bailey v. Kilburn, 182. ARE TO PAGES.] Bailey v. Litten, 269. Bailey v. Doolittle, 560. Bailey v. Smith, 395. Bailey v. Bailey, 297. Baird v. Wolf, 112, 141. Baker v. Stewart, 264. Baker v. Bartlett, 460. Baker v. Bridge, 423. Baker v. Chandler, 467. Baker v. Hale, 607. Baker v. Hunt, 222. Baker v. Scott, 414. Baker v. Lane, 566. Baker v. Swan, 604. Baker v. NefE, 277, 279. Baleum v. Wood, 23, 385, 386. Baldwin v. Sager, 395. Baldwin v. Pool, 340. Bales V. Perry, 311. Ballou V. Lucas, 236. Ballame v. Forsythe, 560. Ballance v. Peoria, 49. Ballanee v. Tesson, 146. Bank v. Abstract Co., 13. Bank v. Mathews, 277. Bank v. Sehott, 284. Bank v. Sherman, 333. Bank v. Bankon, 388. Bank v. Anderson, 395. Bank v. Stone, 337. Bank v. Drummond, 376. Bank v. dapp, 386. Bank v. Green, 22. Bank v. Garland, 472. Bank v. Humphreys, 504, 528. Bank v. Kortright, 281. Bank v. Lanahan, 371. Bank v. Lyons, 23. Bank v. Eiee, 214. Bank v. Ward, 7, 8, 645, 646, 656. Bank v. WUlis, 325. Banks v. Haskie, 352. Banker v. CaldweU, 6. Bankers, etc. Co. v. Blair, 484. Barber v. Eoarbeck, 22. Barber v. Harris, 250. Barber v. Guaranty Co., 63. Barber v. Barber, 545. Barbour v. Mfg. Co., 399. Barbour v. Gates, 210. Barclay v. Plant, 265. TABLE OF CASES. 675 [THE RErEBENCES Bardsley v. Hines,.525. Barling v. Peters, 504. Barheydt v. Barheydt, 423. Barker v. Ey. Co., 190. Barker v. Barker, 511, 520. Barker v. Comins, 441. Barker v. Dayton, 18. Barker v. Ins. Co., 524, 526. Barlow v. Stanford, 502. Barnard v. Campan, 65, 69. Barnhart v. Campbell, 271. Barnhizel v. Ferrell, 34. Barnet v. Menderihall, 23. Bamet v. Proskauer, 204. Barnet v. Lachman, 182, 274. Barnet v. Newark, 357. Barney v. Keoknk, 49, 160. Barney v. Little, 73. Barrett v. Messner, 22. Barron v. MuUin, 493. Barron v. Bobbins, 535. Barry v. Edlavitch, 27. Barry v. Gamble, 157. Barter v. Greenleaf, 187. Bartlett v. King, 411. Barton v. Moss, 560. Bass V. Estill, 69, 205. Bassett v. Bassett, 187. Bassett v. Budlong, 228. Bassett v. Lockhard, 493, 494. Bassler v. Rewolinski, 271. Batchelder v. Keniston, 47. Bateman's Petition, 268. Bates V. Norcross, 42. Bates V. Spooner, 479. Bates V. Sta!te Bank, 484, 488. Bates V. Shrader, 575. Bates V. Ableman, 327. Bates V. Seely, 264. Batesville Inst. v. KaufEman, 297. Bauer v. Gattmanhausen, 78. Baugher v. Merryman, 376. Baxter V. Arnold, 171. BayUss v. Williams, 187. Beaeroft v. Strawn, 418. Beach v.^ Beston, 324. Beadles v. Pry, 474. Beall V. White, 387. Beal V. Blair, 220. Bean v. People, 61, 62. Bear Lake etc. Co. v. Garland, 387. ARE TO PAGES.] Bearss v. Ford, 369, 371, 375. Beasley v. Howell, 602. Beatty v. Kurtz, 177. Beatty v. Mason, 601. Beatty v. Dixon, 519. Beaufort "V. Duncan, 360. Becker v. Howard, 561. Bedell v. Shaw, 606. Beebe v. Morrell, 70. Beecher v. Hicks, 189, 251. Beekman v. Frost, 388. Beekman v. Bingham, 569. Belcher v. Branch, 320. Belden v. Meeker, 36, 441, 482, 483. Bell T. Duncan, 157. Bell V. Hearne, 124. Bell V. Boston, 222. Bell V. TwiUght, 239. Bell V. Humphrey, 408, 411. Bell V. Simpson, 394. Bell V. Farmers' Bank, 207. Bell V. Longworth, 604. Bellows V. Todd, 114, 142. Belslay v. Engle, 189. Belt V. Abstract Co., 61. Beman v. Green, 342. Bemis v. Becker, 341. Benkert v. Jacoby, 420. Bennett v. Saloman, 395. Bennett v. State, 487. Bennett v. Whitman, 519. Bennett v. Nichols, 518. Bennett v. McPadden, 519. Bennett v. Walle^ 240, 540. Bennett v. WilliaSis, 522. Benoist v. Carondelet, 282. Benson v. Morrow, 46, 160. Benson v. Humphreys, 218. Bently v. Deforest, 245. Bergan v. Cahill, 407. Berger v. Bennett, 393. Bergman's Appeal, 487. Berlin v. MelhOm, 502, 503, 504. Bernhart v. Brown, 282, 471. Berry v. Derwart, 190. Berryhill v. Dyer, 525. Bertles v. Nunan, 263, 264. Besore v. Dosh, 563. Bessemer v. People, 523, 524. Best V. Gholson, 386. Bethel v. Bethel, 233, 500, 505. 676 TABLE OF CASES. [THE REFERENCES Betsey v. Torrance, 254. Betsinger v. Chapman, 590. Beverly v. Brooke, 604. Beygeh v. Chicago, 498. Bickford v. Stewart, 30, 575. Bicknelliv. Bicknell, 344. Biedler v. Biedler, 411. Biglow V. Forest, 57. Biglow V. Gilbert, 433. Biglow V. Wilson, 461. Bill V. Mason, 453. Billings V. Stark, 208. Binghamton Bridge case, 146. Binkert v. Wabash E'y, 553, 557. Birdsall v. Hewlett, 431. Birdsall v. Eussell, 65, 67. Biseoe v. Coulter, 565. Bishop V. O'Connor, 300, 320, 581. Bishop V. Morgan, 191. Bishop V. Schneider, 69, 72. Bivard v. Walker, 207. Black V. Gregg, 384. Blackaby v. Blackaby, 607. Blackwell v. Barnett, 397. Blackburn v. Crawford's Lessee, 590, 625. Blackwood v. Van Vliet, 556. Blaeklaws v. Milne, 584. Blair v. Osborne, 183. Blair y. Vanblarcum, 251, 426. Blair v. Ostrander, 468. Blaisdell v. Morse, 215. Blake v. Williams, 394. Blake v. Shaw, 461. Blake v. Stone, 414. Blake v. Pish, 184. Blake v. O 'Neal, 609. Blakely v. Bestor, 566, 569. Blagge V. Miles, 422. Blanchard v. Ware, 522. Blanchard v. Strait, 523. Blanchard v. Maynard, 408. Blanchard v. Bissell, 360. Blanchard v. Brooks, 239. Bland v. Muncaster, 501. Blankenship v. Blankenship, 481. Blauvelt v. Ackerman, 322. Blayton v. Merett, 292. Bletch V. Johnson, 485. Blinn y. Chessman, 216. Bliss f. Johnson, 603. ARE TO PAGES.] Blodget V. Hitt, 497, 498, 514. Blood V. Blood, 69. Blood y. Light, 492. Bloomfield R. R. Co. v. Burgess, 485. Boardman v. Bourne, 566. Boardman v. Reed, 158. Boaz V. Swinney, 579. Bobb V. Bobb, 186. Bodine v. Arthur, 251. Boenim y. Schenck, 322, 323. Bohn V. Barrett's Exr., 412, 426. Bogardus y. Trinity Oh., 606. Bogert y. Elizabeth, 637. Bogy y. Shoab, 239. Bohn V. Barrett's Exrs. 412. Bohon V. Bohon, 246, 288. Bonewits y. Wygant, 48. Bonnell y. Holt, 453. Booker v. Warrill, 265. Boorman v. Sunnucks, 48, 170. Boon V. Pierpont, 380. Booth V. Phelps, 13. Booth y. Cook, 204. Booth y. Small, 601. Boothroyd v. Bngle, 201. Boreel y. Lawton, 353. Borders v. Murphy, 524. Borland v. Walrath, 206. Bostick y. Blades, 424, 425. Bostwick y. Powers, 73. Bottineau v. Ins. Co., 498. Botsford V. Wilson, 236. Botsford v. O'Connor, 513, 514, 525. Bougere, Succession of, 582. Bourland v. Peoria, 66. Bowden v. Henderson, 586. Bowers y. Oyster, 344. Bowers y. Kuscher, 116. Bowers y. Andrews, 220. Bo wen y. Wickersham, 483. Bowen y. Bond, 511. Bowen y. Pleston, 612. Bowen y. Bonner, 496. Bowen y. Thrall, 239. Boyrin v. Sutherland, 527. Bowlin V. Pearson, 452. Bowman v, Davis, 301. Bowman v. Wettig, 570. Bowman v. Lee, 601, 606. Bowman v. Thompson, 555. Bowman v. People, 495. TABLE OF CASES. 677 [the referen Bowman v. Oockerill, 566. Boyd V. Slaybaek, 208. Boyd V. Ins. Co., 586. Boylan v. Warren, 61. Boyland v. Boyland, 525. Boynton v. Hubbard, 288. Boynton v. Bees, 187. Bozza V. Eowe, 505. Brackett v. Gilmore, 563. Bradbury v. Palmouth, 67. Bradford v. Howell, 189. Bradstreet v. Clark, 253, 410. Bradshaw v. Bradshaw, 218. Bradshaw v. Bradbury, 192. Brady v. Spruck, 235. Bramberry's appeal, 264. Brame v. Craig, 22. Branch v. Lowery, 467. Brannan v. Brannan, 227. Brannan v. May, 580. Branger v. Lucy, 582. Brantly v. Cheeley, 323. Brashear v. Connor, 596. Brattle Sq. Ch. v. Grant, 354. Bray v. Adams, 192. Braxton v. Brassier, 46. Breckenridge v. Tood, 184, 209. Bree v. Bree, 489. Brennan v. Wilson, 308, 328. Brewer v. State, 590. Brewer v. Watson, 60, 61. Brewster v. Hardy, 245. Brewster v. Madden, 116. Brewton v. Watson, 188. Brice's Estate, 590. Bridge v. Wellington, 188, 233. Briggs V. Davis, 329. Brightman v. Brightman, 460. Brine v. Ins. Co., 29. BrinkerhofE v. Lansing, 533. Brittoh V. Lorentz, 327. Brock V. Prank, 441, 442. Brolasky v. Furey, 208. Bromley v. Goodrich, 232. Bronson v. Kukuk, 112. Bronson v. Kinzie, 29. Brodie v. Watkins, 188, 233. Brown v. Sims, 9. Brown v. Eenshaw, 218. Brown v. Parran, 225. Brown v. Atwater, 247. CES ARE TO PAGES,] Brown v. Dean, 376. Brown v. Clark, 434. Brown v. Goodwin, 458. Brown v. Piertee, 467. Brown v. Gilmor, 504. Brown v. Delaney, 394. Brown v. Thorndike, 412. Brown v. Jewett, 586. Brown v. Cockerill, 603. Brown v. Coble, 605. Brown v. Brown, 425. Brown v. Smith, 456. Brown v. Phil. Bank, 204. Brown v. Parker, 476, 499, 524. Brown v. Rose, 613. Brown v. Thompson, 210. Brown v. Coal Oil Co., 235. Brown v. Pforr, 291. Brown v. Brown, 231. Brown v. Throckmorton, 116. Brown v. United States, 57. Brown v. Chamberlin, 328. Brown v. .Tackaon, 239. Brown v. Manter, 188. Browne v. Ferrea, 493. Browning v. Howard, 502. Browning v. Harris, 385. Brownfield v. Wilson, 408, 415. Brownfield v. Dyer, 525. Brookbank v. Kernard, 265. Brooks V. Bruyn, 604, 606. Brooks V. Eooney, 496. Brooks V. Curtiss, 27. Brooks V. Chappel, 519. Bruce v. Luke, 42. Brunswick v. Crossman, 422. Brush V. Ware, 65. Brush V. Beecher, 353. Bryant v. Christian, 421. Bryan v. Ramirez, 205, 226. Bryne v. Morehouse, 193. Buchan v. Hart, 297. Buchanan v. Curtis, 50. Bucher v. Wetherby, 128. Buck V. Collins, 41, 61, 62. Buckner v., Street, 240. Buckingham v. Jacques, 32, 580. Buckingham v. Wesson, 316. Bucklen v. Hasterlik, 205. Buckley v. Gray, 656. Buckmaster v. Ryder, 535. 678 TABLE OF CASES. [the references Buffalo V. Webster, 357. Bull V. Willard, 339. Bull V. BuU, 427. Bullock V. Battenhousen, 381, 388. Bullock V. Wilson, 112. Bunee v. Eeed, 499. Bunch V. Hardy, 250. Bundy v. OpMr Iron Co., 207. Bunker v. Green, 211. Burch V. Carter, 452. Burch V. Burch, 405, 431. Burdens v. Amperse, 261. Burdick v. Wentwoith, 113. Burdick v. Briggs, 112, 546. Burgess v. Gray, 116. Burgett V. Paxton, 466. Burke v. Stokely, 476. Burkholder v. Cased, 207. Burlen v. Shannon, 41. Burleigh v. Clough, 21, 418, 420. Burlington University v. Barrett, 435. Burnet v. Pratt, 270. Burnet v. Burnet, 433. Burns v. Boss, 487. Burnside v. Merrick, 273. Burr V. Borden, 497. Burr V. Mueller, 272. Burrows v. Bailey, 322. Burton v. LeEoy, 202. Burton v. Tuite, 62, 63. Burtners v. Keran, 41. Burwell v. Jackson, 345. Busch V. Donohue, 116, 147. Buseh V. Huston, 560. Bush V. Seott, 477. Bush V. Stevens, 187. Busaey v. Hardin, 504. Bushnell v. Harford, 533. Bustamete v. Bescher, 526. Butcher v. Rogers, 188. Butler's Appeal, 552. Butler V. Davis, 220. Butler V. Lee, 478. Butler V. Haynes, 496. Butler V. Fitzgerald, 500. Butler V. Roys, 271. Butler V. Huestis, 189, 407, 408, 414, 415, 416. Butterfield v. Haskins, 419. Butterworth v. Crawford, 641. Button V. Am. Tract Society, 428. ARE TO PAGES.] Button V. Sehroyer, 340. Byars v. Spencer, 207. Byrne v. Roberts, 525. Byrnes v. Palmer, 645. 0. P. R. R. Co. V. Beal, 217. Caal V. Higgins, 18, 634. Cabeen v. Breckenridge, 66. Cable 's Appeal, 429, 431. Caday v. Eighmey, 118. Cady V. Purser, 69. Cady V. Shepard, 274. Cady V. Smith, 467. Cahill V. Palmer, 601, 602. Cahoon v. Coe, 558. Calanan v. Hurley, 565. Calcord v. Alexander, 219. Calder v. Chapman, 90. Caldwell v. Caldwell, 408. Caldwell v. IJaminer, 456. Calhoun v. Cook, 601. Callins v. Lavelle, 188, 218, 230, 231, 249. Callanan v. Votruba, 471, 472. Callaway v. Fash, 205, 226. Calumet Co. v. Russell, 204, 222. Cambridge Bank v. Delano, 64, 66. Cameron v. Supervisors, 54. Cameron v. Logan, 494. Camp V. Smith, 118. Camp V. Bates, 532. Campbell v. Gas Co., 46. Campbell v. Johnson, 219, 220. Campbell v. Campbell, 257, 405. Campbell v. BUiott, 885. Campbell v. MeCahn, 521. Campbell v. HaU, 534. , Campbell v. Ware, 580. Campbell v. Wiggins, 412. Campbell v. Wilson, 590. Canal Commissioners v. People, 49. Canfield v. Bostwick, 406. Cannon v. Brame, 476. Cappock V. Smith, 368. Capehart v. Dowery, 501, 503. Carbine V. Morris, 301. Carbine v. Pringle, 66. Oardell v. Ryder, 265. Carhart v. Harshaw, 28. Carneal v. Banks, 482. Gary v. Whitney, 340. TABLE OF CASES. 679 [THE REFERENCES Carey v. Eae, 26. Carlisle v. Tindall, 536. Carlisle v. United States, 17. Carman v. Johnson, 109, 112. Carow, In re, 331. Carpenter v. Snelling, 210. Carpenter v. Underwood, 327. / Carpenter v. Dexter, 222. Carpenter v. Sherfy, 301, 472. Carpenter v. Browning, 409. Carpenter v. Bowen, 870, 449. Carpenter v. Mitchell, 377, 452. Carpenter v. Denoon, 609. Carpentier v. Williamson, 235. Carr v. Eising, 22. Carr v. Moore, 170. Carr v. Ellison, 352. Carr v. Carr, 375. Carrington v. Manning's Heirs, 438. CarroU v. Safford, 113. Carroll v. E. St. Louis, 275. Carroll v. Carroll, 441, 444. Carroll v. Gillion, 601. Carson v. Murray, 24. Carter v. Day, 537. Carter v. Hawkins, 65. Carter v. Rodewold, 528. Carter v. Wise, 235, 236. Carver v. Louthain, 241. Gary v. Whitney, 340. ' Case V. Codding, 257. Oasebolt v. Donaldson, 22. Cassell V. Cook, 224. Cate V. Craynor, 409, 417. Catlin V. Ware, 188. Catlino v. Decker, 609. Cavanaugh v. Peterson, 389. Cemetery v. B. B. Co., 55. Chadboume v. Mason, 496. Challis V. E. E. Co., 55, 547. Challefoux v. Ducharme, 39, 51, 112, 135, 145. Chambers Be, 64. Chambers v. Jones, 318. Chambers v. St. Louis, 278. Chambers v. Cox, 386. Chamberlain v. Bell, 66. Champaign v. Harmon, 278. Champlin v. Haight, 309. Chandler v. Chandler, 246. Chandler v. Spear, 554, 566. ARE TO PAGES,] Chandler v. Cheney, 263. Chapin v. Gilbert, 429. Chapin v. Curtenius, 321. Chapman v. Lee, 12. Chapman v. Templeton, 571. Charles Biver Bridge v. Warren Bridge, 157, 547. Charles v. Waugh, 554, 558. Chartiers Etc. Co. v. McNamara, 211. Chase v. Boss, 320. Chase v. Heaney, 6, 7, 656. Chase v. Whiting, 300. Chase v. Peek, 344. Chase v. Chase, 545. Chatard v. Pope, 111. Chatham v. Bradford, 72. Cheever v. Parley, 397. Cheney v. Cook, 540. Chicago V. Vulcan Iron Works, 254. Chicago V. Lamed, 54, 552. Chicago, etc., B. B. Co. v. Joliet, 50. Chicago, etc., B. R. v. Kennedy, 64. Childs V. Lanterman, 477. Chiles V. Conley's Heirs, 188. Chiniquy v. Catholic Bishop, 216, 225, 534. Chope V. Lorman, 40. Chote V. Spencer, 524. Chouteau v. Eckhart, 145. Christian v. Newberry, 374. Christie v. Gage, 609. Christy v. Dana, 118. Christy v. Eisher, 560. Chubb V. Johnson, 30. Church V. Gilman, 152. Church V. Eurniss, 527. Church V. Smith, 340. Church V. Hoboken, 50. Church V. Grossman, 472. Churchill v. Eeamer, 230, 415. Cincinnati v. White, 50. Clader v. Thomas, 69. Glaflin v. Dunne, 476. Clagett V. Conlee, 604. Claiborne v. Holmes, 70. Clapp V. Stoughton, 426. Clapp V. Bromagham, 610. Clark V. Boorman 's Ex 'rs, 470. Clark V. Gaffney, 67. Clark V. Conner, 565. Clark v. Bosworth, 638. m tXbiM of bASES. [the refekenoes Clark V. Tennison, 418, 424. Clark V. Marshall, 7, 656. Clark V. Graham, 29, 188, 290. Clark V. Baker, 41, 42, 118, 387. Clark V. Collidge, 43. Clark V. Wethy, 192. Clark V. Hillis, 480. Clark V. Thompson, 513. Clark V. Hall, 113. Clark V. Clark, 264. Clark V. Manf g. Co., 282. Clark V. Sawyer, 302. Clark V. Henry, 369, 375. Clark V. Martin, 197, 252. Clarke v. Clarke, 308, 608. Clarke v. Bowan, 558. Clark V. Boorman's Ex'rs, 414. Clark V. Huges, 610. Clarkson v. Stinehfield, 534. Claunch v. Allen, 240. Clayton v. Wardell, 590. Clements v. Lamkin, 602. Clery v. Hinman, 559. Close V. Samm, 605. Coal Co. V. Barber, 470. Coats V. Taft, 191, 219. ■ Cobble V. Tomlinson, 273. Coburn v. Ames, 160. Coburn v. Ellenwood, 147. Cockerel v. Coleman, 575. Coffee V. Silvan, 510. Coffin V. Taylor, 395. Cofran v. Cofran, 360. Cohea v. Hemingway, 317. Cohen v. Shard, 637. Choen v. State, 485. Cohn V. Baer, 477. Colty V. McOmber, 225. Cole V. Mette, 182. Cole V. Kimball, 199. Coles V. Withers, 377. Colesburg v. Dart, 290. Coleman v. Allen, 115. Coleman v. E. R. Co., 275. Coleman v. Billings, 604. Coleman v. Improvement Co., 191, 193. Coleman v. McAnulty, 476. CoUame v. Langdon, 372. Collins V. Bartlett, 151. Collins V. Marcy, 252. Collins V. Warren, 273. ARE TO PAGES.] Collins V. Megraw, 455. Collins V. Collins, 535. Collins V. Lynch, 611. CoUamore v. Wilder, 583. Collier v. Blake, 308. Collier v. Vason, 497. Collier v. Grlmsey, 419. Collier's Case, 423. Colson V. Thompson, 540. Comer v. Baldwin, 207. Commonwealth v. Alger, 17, 18. Commonwealth v. Tewkesbury, 18. Commonwealth v. Clark, 608, 610. Commonwealth v. Jackson, 207. Commonwealth v. Andre, 44. Commonwealth v. Stump, 590. Commissioners v. Babcock, 72. Commissioners v. Bush, 177. Commissioners v. Brackenridge, 552. Comstock V. Crawford, 36. Gomstoek v. Smith, 236, 239. Conboy v. Iowa City, 357. Congregational Society v. Stark, 279. Conkliu V. Foster, 499. Conn. Ins. Co. v. Smith, 277. Connard v. Colgan, 208. Connor v. Banks, 394. Connor v. Whitmore, 396. Conover v. Musgrave, 504. Conover v. Warren, 447. Conrad v. Ins. Co., 466. Conrad v. Everieh, 481. Conroy v. Perry, 455. Cook V. Sinnamon, 216. Cook V. So. Pk. Com'rs, 54. Cook V. Barr, 296. Cook V. Clark, 383. Cook V. Berlin Mill Co., 322. Cook V. Holmes, 411, 423. Cooley V. Scarlett, 482. Coolidge V. Learned, 45. Coons V. Throckmorton, 525. Cooper V. Ord, 28, 604. Cooper V. Newton, 182. Cooper V. Whitney, 369. Cooper V. Eeynolds, 521. Cooper V. Wilder, 123. Cooper V. Roberts, 128, 136. Cooper V. MeBride, 606. Cooper V. Cooper, 264, 586. Corbin v. Healy, 194. TABLE OF CASES. 681 [the references Corbm v. Sullivan, 68. Corbitt V. Timmeiman, 529. Corfield v. Oorgell, 579. Cormack v. Woleott, 62. Cornell XJniv. v. Mead, 571. Corning v. Troy Factory, 606. Corning v. Gould, 53. Corwin v. Merritt, 318. Corwith V. Bank, 495. Cos V. Estes, 211. Cost V. Eose, 525. Costello V. Bdson, 603. Costigan v. Gould, 184. Costly V. Driver, 524. Coursey v. Davis, 251. Cover V. Manaway, 224. Covenlioven v. Shuler, 410. Covington v. Stewart, 613. Cowman v. Rogers, 588. Cowan V. Foster, 512. Cowell V. Col. Springs Co., 197, 252. Cowell V. Lammers, 156. Cowles V. Bickett, 324. Cowlos V. Marble, 369, 393. Cowley V. Pulsifer, 64. Cowl V. Varnum, 453. Cox V. Stern, 206. Cox V. James, 171. Cox V. Cox, 577. Cox V. Halsted, 497. Coyce V. Stovell, 471. Coye V. Leach, 588. Craddook v. Stewart's Adm'r, 301. Craig V. Eadford, 578. Craig V. Leslie, 430. Craig V. Dimock, 210. Craig V. Swinerton, 454. Craig V. R. B. Co., 54. Craig V. Wells, 253. '■'' Cram v. Cotting, 554, 555. Cramer's Appeal, 32, 580. Crane v. Reader, 254. Crane v. Turner, 395. Cranston v. Crane, 393. Crary v. Goodman, 603, 605. Crawford v. Bicheson, 451. Crawford v. Spencer, 182. Cradle v. Hays, 191, 192. Crippen v. Dexter, 441. Crispen v. Hanuavan, 28, 603, 606. Crittenden v. Fairohild, 311. ARE TO PAGES.] Crittenden v. Leitensdorfer, 495. Critz ' Heirs v. Pierce, 440. Croade v. Ingraham, 24. Crockett v. McGuire, 65. Crocker v. Pierce, 461. Crocker v. Ballangee, 231. Croft v. Punster, 187, 370, 394. Croker v. Gilbert, 187. Cromwell v. Ins. Co., 344. Cronise v. Hardt, 317. Crooker v. Crooker, 73. Crooke v. Aiidrews, 636. Crook V. Chilvers, 8. Crook V. Lunsford, 22. Crosby v. Dowd, 489. Crosby v. Parker, 218. Cross V. Cross, 591. Crouse v. Murphy, 471, 485, 486, 487. Crowell V. Johnson, 505. Crowles v. Marble, 369. Cruger v. Halliday, 298. Crump y. Faucett,, 577. Gryder's Appeal, 309. Culver V. Phelps, 524. Oummings v. Powell, 151. Cummings v. Rogers, 347. Cummings v. Cummings, 511. Cummings v. Plummer, 416. Cunningham v. Pattee, 65. ■? Cunningham v. McCoUum, 304. Cunningham v. Curtis, 192. Cunningham v. Ashley, 113. Curd V. Lackland, 492. Curren v. Taylor, 32, 580. Curry v. Hinman, 524. Curry v. Spencer, 551. Curtis V. Hunting, 154. Curtis V. Flynn, 381. I Curtis V. Boot, 470, 503. Curtis V. Smith, 297, 307, 561 Curtis V. Lyman, 72. Cushaman v. Glover, 292. Cutler v. Davenport, 329, 396. Cutler V. Tufts, 228. Cutright V. Stanford, 582. D'Armond v. Dubose, 210. Dailey v. Litchfield, 12. Dale V. Lincoln, 182, 208. Dale V. Shively, 199. Dalton V. Lamburth, 533. 682 TABLE OF CASES. [the references Dalton V. Lucas, 569, 570. Damon v. Bibben, 417. Danforth v. Lowry, 295. Daniel v. Purvis, 146. Daniel v. Leiteh, 256. Daniel v. Hodges, 461. Daniel v. Whartenby, 413. Darling v. Eogers, 427. Darst V. Bates, 184. Dart V. Woodhouse, 13. Dartmoutli College v. Woodward, 146. Dartmouth Sav. Bank v. Bates, 468. Davenport v. Whistler, 207, 339. Davenport v. Young, 317. Davidson v. Seerist, 13. Davidson v. Ala. I. & S. Co., 214. Davidson v. Seegar, 636. Davidson v. Van Pelt, 345, 633. Davie v. Briggs, 586. Davis V. Hollingsvrorth, 181. Davis V. Burton, 202. Davis V. E. E. Co., 284. Davis V. Steeps, 471, 486. Davis V. McDonald, 269. Davis V. Savings Bank, 292. Davis V. Bohle, 325. Davis V. Easly, 605. Davis V. Alvord, 454, 455. Davis V. Life Ins. Co., 459. Davis V. Hamilton, 376, 469. Davis V. Eansom, 495. Davis V. Henderson, 345, 633. Davis V. Kline, 467. Davis' Heirs v. Taul, 430. Day V. Button, 63. Day V. Brenton, 400. Day V. Wilder, 608. Day V. Micon, 57. Dayton v. Corser, 500. Dayton v. Mintzer, 511. De Camp v. Eobbins, 277. De Graw v. King, 205. De Wolf V. Hayden, 42, 238. Dean V. Bittner, 145, 146. Decker v. Decker, 410. Deerfield v. Arms, 47. Deford v. Deford, 407. Deininger v. MeConnell, 202. De Kay v. Irving, 408. Delancy v. Ganong, 352. Delaney v. Brunette, 397. ARE TO PAGES.] Delano v. Bennett, 395, 396. Delaunay v. Burnett, 116. De Laureal v. Kemper, 401. Delevan v. Duncan, 345, 346, 633. Dement v. Thompson, 496. Deming v. MUes, 71. Deninger v. McConneU, 208. Dennett v. Dennett, 415. Den V. Taylor, 301. Den V. Messenger, 423. Den V. Troutman, 399. Den V. Despreaux, 301. Dennis v. Maynard, 450. Denning v. Smith, 564. Denton v. Title Co., 8. Denton v. Jackson, 278. De Pauw v. New Albany, 551. Dequindre v. Williams, 44. Dew V. Dellinger, 340. Dewey v. McLain, 57. Dewey v. Sugg, 471. Devries v. Haywood, 43. Dexter v. Manley, 353. Deyer v. Homer, 255. Dibrell v. Carlisle, 476. Dickie V. Abstract Co., 8. Dickenson v. Breedan, 570. Dickson v. Eandal, 265. Dickson v. Eawson, 324. Dickson v. Todd, 458. Dickins v. Barnes, 219. Dietrich v. Hutchinson, 214. Dikes V. Miller, 53. Dill V. Wisner, 431. DUls V. Jasper, 503. Dills V. Hubbard, 604, 606. Dilhnan v. Brown, 274. Dillon V. Brown, 274. Dillingham v. Fisher, 115. Dillingham v. Brown, 571. Dingley v. Bank, 376. Dingley v. Boston, 55. Dingman v. People, 147. Dinkins v. Bowers, 453, 455. Disque v. Wright, 380, 388. Diversy v. Johnson, 515. Dix V. Palmer, 526. Dixon V. Dixon, 466. Dixon V. Merritt, 41. Dixon V. Cook, 601, 602. Dobbins v. Wilson, 466. TABLE OF CASKS. 683 [THE BBIFERENCES Dobbins v. Dobbins, 607, 610. Dodd V. Williams, 42, 89, 90, 646, 647, 654, 656. Dodge V. Hopkins, 291. Dodge V. Stevens, 323. Dodge V. Beeler, 577, 580. Dodge's Appeal, 580. Doe V. Hardy, 316. Doe V. Governeur, 578. Doe V. Thompson, 603. Doe V. Jackson, 321. Doe V. Eslava, 606. Dogan V. Griffin, 555. Dolde V. Vodieka, 171. Dole V. Thurlow, 203, 205. Donald v. Gregory, 40. Donaldson v. Holmes, 454. Donaldson v. Hibner, 43. Donahue v. Chase, 315. Donohoe, etc., Co. v. South Pac. Co., 487. Donnelly v. Turner, 412. Donlin v. Hettinger, 515. Dood V. Williams, 487. Doolan v. Carr, 151. i Dooly V. Walcott, 67. Doolittle V. Jenkins, 453. Doran v. Mullen, 201. Dorr V. Harrahan, 197. Dorland v. Magilton, 609. Dorsey v. Kendall, 501. Dorsey v. E. E. Co., 364. Douglass V. Blackford, 409. Douglas V. Houston, 468. Douglass V. Dangerfield, 560. Durette v. Briggs, 300. Douseman v. Hooe, 146, 482. Douthitt V. Stinson, 180, 181. Dow V. Lewis, 188. Dow V. Dow, 406. Dow V. McKennedy, 607. Dowling V. Salliotte, 271. Downer v. E. E. Co., 50. Downey v. Borden, 420. Downing v. Marshall, 310. Drake v. Kinsell, 22. Drayton v. Marshall, 370. Draper v. Bryson, 303. Dressel v. Jordan, 224. Drew V. Smith, 192. Drusadow v. Wilde, 419. ARE TO PAGES.] Dryden v. Hanway, 257. Dublin V. Chadbourn, 441. Ducat V. Chicago, 275. Dueker v. Burnham, 432, 466. Dudley v. Sumner, 349. Duffy V. Hobson, 211. Dugan V. PoUett, 522, 609, 610. Duncan v. Duncan, 550, 591. Dundee Mtg. Co. v. Huges, 7, 8, 654, 655. Dunham v. Shindler, 467. Dunklin v. Wilson, 476. Dunklee v. Crane, 453, 640. Dugan V. Follett, 522. Dunlap V. Gallatin Co., 450, 554, 555, 557, 558. Dunlap V. Bullard, 355. Dunlap V. Dunlap, 254, 406. Dunleith v. Eeynolds, 551. Dunn V. Ketchum, 367. Dunn T. Snell, 560. Dunn V. Gaines, 213. Dunning v. Ocean Na\. Bank, 320. Dunning v. Van Dusen, 421, 422, 618. Duplessis V. Kennedy, 587. Dupont V. Davis, 192. Dupont V. Leavenworth, 273. Durant v. Comegys, 471, 472. Durett V. Briggs, 300. Durfree v. Pavitt, 258. Durham v. Heaton, 467, 499. Durst V. Daugherty, 222. Duryea v. New York, 195. Dutton V. Simmons, 486. Dwight v. Overton, 329. Dwight V. Packard, 191. Dyer v. Clark, 273. Dyer v. Homer, 254. Dyer v. Brennock, 591. Eames v. Turnverein, 481. Earl V, Eowe, 419. Easterly v. Goodwin, 524. Eastman v. Porter, 465, 479. Eaton V. Trowbridge, 208. Eaton V. Simmonds, 255. Eaton V. Bryan, 584. Eaton V. Eyan, 493. Eaton V. White, 505. Edgerton v. Bird, 28, 603. Edwards v. Bibb, 408, 415. 684 TABLE OP CASES. [the references Edwards v. Bays, 254. Edwards v. Ralley, 151. Edwards v. Thompson, 639. Edwards v. Trumbull, 376. Edwards v. Barnard, 413. Eidenmiller v. Wyandotte City, 54. Eiden v. Eiden, 536. Eiseley \. Spooner, 189. Eisenlord v. Clum, 625. Eisenmenger v. Murphy, 477. Egan T. Connelly, 555. Egery v. Woodard, 207. Eldridge v. Pierce, 22. Eldred v. Sexton, 114. Elder v. Derby, 373. Elmdorf v. Lockwood, 23, 24, 25, 269. Ellis V. R. K. Co., 390. Elliott V. Sleeper, 214. Elliott V. Armstrong, 296. Elliott V. Sackett, 340. Elliott V. Wood, 393. Elliott V. Pearle, 605. Ellison V. Wilson, 65. Ellison V. Daniels, 396. Ellsworth V. K. K., 208. Ellwell V. Shaw, 289. Ely V. Wilcox, 89, 90. Emmerson v. White, 584. Emmison v. Whitlesey, 425. Emory v. Keighan, 397. Enfield v. Permit, 44. Ennis v. Tucker, 237. Equitable B. & L. Assn. v. Bank, 7. Equitable Trust Co. v. Fisher, 312, 390. Erissmann v. Erissmann, 544. Erskine v. Davis, 213. Eshelman's Estate, 577. Espy V. Anderson, 12. Ethell V. Nichols, 513. Evans v. Poss, 71. Evans v. Davis, 496. Evans v. Ashley, 304, 483, 505. Evans v. Edwards, 187. Evans v. Hudson, 410. Evertson v. Sawyer, 495, 506. Ewins V. Gordon, 342, 348. Fairman v. Beal, 421. Falkner v. Guild, 511. Fallon V. Clindester, 441. ARE TO PAGES.] Faloon v. Simshauser, 250. Fannin Co. v. Riddle, 44. Farrington v. Wilson, 511. Faris v. Dunn, 296. Parish v. Coon, 44, 160, 605, 607. Farish v. Cook, 417, 418. Farmers' Bank v. Haight, 201. Farmers' Bank v. Merchant, 449. Farmers ' Bank v. Peters, 503. Famham v. Hildreth, 484, 485. Farnsworth v. Cole, 542. Farnum v. Peterson, 254. Farrington v. Wilson, 112, 511. Farwell v. Rogers, 254. Fast V. McPhersou, 296. Faucett v. Faucett, 308. Faulke v. Bond, 610. Fearing v. Swift, 413. Peaster v. Fleming, 494. Pehrle v. Turner, 532. Feit V. Vannata, 416. Pelino V. Lumber Co., 383. Fell V. Young, 209, 318. Fellows V. Heermans, 295. Feltman v. Butts, 408. Fenn v. Holmes, 28, 157. Fenner v. Tucker, 497. Fenton v. Reed, 590. Fergus v. Woodward, 495, 501. Fergusen v. Miles, 303. Ferguson v. Worrall, 364. Fergusen v. Jones, 585. Fergusen v. Crawford, 476. Fergusen v. Scott, 583. Ferris v. Crow, 524. Ferry s Appeal, 408. Fetrow v. Merriweather, 187. Ficklin v. BLxey, 500. Fiege v. Garvey, 23. Field v.- Seabury, 145. Field V. Barling, 177. Final v. Backus, 225. Pinley v. Brown, 566. Finley v. Steele, 232, 233. Finney v. Boyd, 465. Fire Ins. Co. v. Doll, 290. Fire Ins. Co. v. Loomis, 505. Fischer v. Eslaman, 271, 301. Fisher v. Fields, 20, 295. Fisher v. Hall, 207. Fisher v. Forbes, 258. TABLE OF CASES. 685 [THE REFERENCES Fisher v. Provin, 263. Fisher v. Beekwith, 207. Fisher v. Butcher, 208, 222. Fish V. Lightner, 465, 479. Fishback v. Weaver, 479, 502. Fiske V. Plores, 193, 300. Fiske V. Kellogg, 513, 514. Fiske V. Tolman, 255. Fissler's Appeal, 522. Fitch V. Willard, 345, 346. Fitch V. Boyer, 509, 510. Firth V. Lawrence, 366. Fitzgerald v. Fitzgerald, 206. Fitzgerald v. Spain, 560. Fitzgerald v. Glancy, 582. Fitzgibbon v. Lake, 321. Fitzhugh V. Maxwell, 340. Flannery v. Eohrmayer, 455. Fleming v. MeHale, 257. Fleming v. Johnson, 502. Flemming v. Griswold, 611. Fletcher v. Tyler, 251. Fletcher v. Holmes, 370, 385, 386, 449. Fletcher v. Peck, 52. Flinn v. Owen, 550. Flint V. Clinton Co., 281, 361. Florence v. Hopkins, 610. Florence v. Paschal, 636. Flowery Mining Co. v. Bonanza Co., 202. Floyd V. Herring, 318. Fogal V. Perro, 609. Fogg V. Clark, 417. Foley V. Harrison, 135. Foley V. McDonald, 318, 515. Foltz V. Prouse, 575. Fonda v. Sage, 536, 636, 637. Fontaine v. Savings Bank, 208. Fotte V. Bryant, 258. Forbes v. Scannell, 328. Ford V. Unity Church, 89, 90. Ford V. Wilson, 603, 605. Ford V. Doyle, 484. Ford V. Holmes, 606. Ford V. Marshal, 609. Forsyth v. Freer, 386. Forsyth v. Small, 49. Forrest v. Jackson, 189. Forrest v. Fay, 490. Foshier v. Narver, 485. ARE TO PAGES. 1 Poster V. Shreve, 189. Foster v. Eiehard Busteed, 465, 479. Foster v. Waterman, 585. Foster v. Evans, 534. Foster v. Young, 41. Fouby V. Fouby, 187. Foulk V. Coburn, 300. Foulks V. Pegg, 461. Fourth Ave. Church v. Schreiner, 639. Fowle V. Merrill, 315. Fowler v. Shearer, 180, 289. Fowler v. Doyle, 472. Pox V. Phelps, 423. Pox V. Turtle, 499. Pox V. Burke, 31. Pox's Will, 438. Prakes v. Brown, 545. Franzini v. Layland, 49. Frazer v. Peoria Co., 250, 426. Frazer v. Lee, 323. Frazer v. Thatcher, 466. Prances ' Estate, 408, 415. Pranee-Texan Land Co. v. McCor- miek, 275, 284, 285. Prancis v. Sayles, 454. Franklin Co. v. Savings Inst., 277. Franklin v. Talmadge, 213. Pranklyn v. Hayward, 374. Pratt V. Woodward, 192. Frederick v. Haas, 257. Frederick v. Pacquette, 511. Preedman v. Goodwin, 160. Preeland v. Dazey, 519. Freeland v. Penn. Ry. Co., 50. Fremont v. Flower, 155. Preemont v. Seals, 155. French v. Crosby, 24. French v. Wade, 57. French v. Edwards, 300. French v. Burns, 371. Friend v. Ward, 69, 342, 388, 395. Frink v. Darst, 238. Prink v. Le Eoy, 383. Frisbie v. Whitney, 116. Froneberger v. Lewis, 323. Frost V. Beekman, 69. Frost V. Deering, 269. Frost V. Bank, 493. Fugate V. Pierce, 602, 603, 605, 606. Puller V. Eddy, 370. Fuller V. Shedd. 570. 686 TABLE OF CASKS. [THE RErERENCES FuUer v. Carr, 220. Puller v. Jillett, 199. Puller V. Fellows, 220. Pulton V. Hill, 410. Pulton V. Moore, 506. Punk V. Eggleston, 421, 423, 432, 618. Purgeson v. Jones, 585. Purgusen v. Mason, 246. Purlong V. Eiley, 582. Purnas v. Durgin, 255. G. B. & M. C. Co. V. Groat, 300. Gabe v. Eoot, 567. Gadberry v. Sheppard, 253. Gage V. Keid, 570. Gage V. Schroder, 515. Gaines v. Hale, 113. Gairity v. Eussell, 533. Galaway v. Malehou, 440. Gale V. Kinzie, 46, 48. Gale V. Wilson, 256. Gallagher's Appeal, 432. Galaway v. Malchon, 380, 388. Galloway v. Pinley, 157. Galpin v. Abbott, 69. Galpin v. Page, 475, 529. Gait V. Galloway, 157. Gammon v. Hodges, 71. Gambert v. Hart, 654. Gans V. Eenshaw, 633. Gardener v. Moore, 384. Gardiner v. MiUer, 45, 612. Gardiner v. Com. Nat. Bk., 326, 329. Gardner v. Jaques, 304. Gardner v. Eberhart, 301, 506, 508. Gardner v. Grannis, 209. Gardner v. Gardner, 309. Gardner v. Heyer, 428. Garland v. Britton, 523. Garner v. Jones, 263. Garnett v. Garnett, 180. Garnsey v. Eogers, 256, 383. Garret v. Moss, 181. Garrett v. Lynch, 492. Garvin v. Stewart, 512. Garrison v. Rudd, 364. Gas Co. V. San Praneisco, 360. Gashwiler v. Willis, 280. Gaskill V. Badge, 69. Gate City Abst. Co. v. Post, 8. ARE TO PAGES.] Gates V. Labeaume, 326. Gates V. Caldwell, 198. Gates V. Preston, 465. Gates V. Tebbetts, 526. Gault V. Woodbridge, 496. Gay V. Walker, 194, 195. Gayety v. Bethune, 45. Gaylord v. Dodge, 23. Gavin v. Shuman, 569. Geary v. Simmons, 465, 479. Geary v. City of Kansas, 205. Gebhart v. Beeves, 360. Gebhard v. Sattler, 605. Gebhart v. Beeves, 360. Gee V. Moore, 239. Geekie v. Kirby Co., 570. Geer v. Mining Co., 76. George v. Kimball, 255. German Ins. Bk. v. Nunes, 326. G«met V. Lynn, 416, 609, 610. Geyer v. Wentzel, 413. Gibbs V. Thayer, 239, 240. Gibbons v. Hoag, 315, 381, 393. Gibson v. Chouteau, 45, 156, 612. Gibson v. Kelly, 50. Gibson v. Warden, 274. Giesy v. B. E. Co., 55. Gifford V. Choate, 420. Gigos V. Cochran, 342, 540. Gilbert v. Chapin, 412, 426. Gilbert v. Holmes, 291. Gilbert v. How, 291. Gilchrist v. Eea, 320. Giles V. Lyon, 518. Gill V. Wood, 265. Gill V. Hoblitt, 524. Gillett V. Gaffney, 68. Gillett V. Neaganza, 534. Gillilan v. Swift, 270. Gillham v. Mustin, 435. Gilkey v. Hamilton, 316, 317. Gilmer, Matter of, 500. Gilmore v. Sapp, 153, 154. Gilpin V. HoUingsworth, 412. Gissey v. E. E. Co., 55. Given v. Marr, 546. Gjerstadengen v. Van Duzen, 122. Glading v. Prick, 72. Gladsen v. Whaley, 530. Gittens V. Lowry, 604. GJency v. Elliott, 560. TABLE OF CASES. 687 [the references Glass V. Hurlbut, 638. Glover v. Payn, 377. Goddard v. Perkins, 46.1. Godfrey v. Bradley, 129. Godfrey v. "Valentine, 527. Godfrey v. Alton, 176. Gofe V. Goff, 481. Gold V. Judson, 406. Goldberg v. Title Co., 8, 73. Golder v. Brewster, 308. Goodel V. Hibbard, 19. Goodricb v. Lambert, 414. Goodman v. Randall, 200. Goodspeed v. Fuller, 186. Good-win v. Goodwin, 322, 349. Goodwin v. Baldwin, 397. Gordan v. BodweU, 495. Gorham v. Arnold, 372, 449. Gorman v. Stanton, 185. Goss V. Troman, 592. Gossard v. I'ergnsen, 505. Gossett V. Kent, 182, 274. Gossom V. Donaldson, 495. Goudy V. HaU, 512. Gould V. Mather, 308. Gould V. Sternberg, 535. Gould V. Day, 208, 560. Gould V. Hendriekson, 303, 304. Gowan v. Jones, 504. Graff V. Middleton, 235. Graham v. Bleakie, 503. Graham v. Graham, 42, 418. Grandin v. Hernandez, 202. Granger v. Avery, 47. Grant v. Davenport, 360. Grant v. Fowler, 605. Grantern v. Eosecierranoe, 527. Gray v. Pingree, 40. Gray v. TJlrich, 203, 205. d-ray v. Hayes, 250. Gray v. Blanehard, 252. Gray v. Brignardello, 501. Gray v. Gray, 544. Grayson v. Weddle, 513. Graves v. Buren, 565. Graves v. Graves, 186. Graves v. Coutant, 452. Grebbin v. Davis, 479. Green v. Liter, 154. Green v. Blanehard, 14. ARE TO PAGES.] Green v. Myers, 489. Green v. Marks, 477. Green v. Holway, 210. Green v. Irving, 612. Green v. Slayter, 457,. 460. Green v. Pulsford, 624. Green v. Garrington, 72. Green Bay Co. v. Hewitt, 228. Greenby v. Kellogg, 199. Greene v. Dickson, 219. Greene v. Lunt, 556. Greenleaf v. Bebee, 455. Greenwood v. Murray, 441. Greer v. Higgins, 66. Grey v. Tubbs, 347. Gridley v. Hopkins, 177. Gridley v. Watson, 318, 468. Gridley v. Gridley, 431. Gridley v. Philips, 316, 318. Griffin v. Eanney, 210. Griffin v. Rogers, 324. Griffin v. Proctor, 386. Griffin v. Sheffield, 205, 225. Griffin v. Page, 510. Griffith V. Harvester Co., 475. Grignon's Lessee v. Astor, 112, 146, 520. Grimes v. Orrand, 182. Grimstone v. Carter, 376. Griswold v. Smith, 638. Griswold v. Puller, 636. GrofE V. Bank, 67. Groft V. Weekland, 601. Grogan v. San Francisco, 147, 361. Groner v. Smith, 202. Grout V. Townsend, 187. Grove v. Cather, 454. Grover v. Hale, 308, 311, 315. Groves v. "Webber, 462. Groves v. Cox, 423. Grube v. "Wells, 602, 605. Grumley v. "Webb, 322. Grundies v. Reid, 484. Guild V. Richards, 196. Guild V. Hall, 472. Guilford v. Love, 510. iGuion V. Pickett, 21, 295, 297. Guiteau v. "Wisely, 470. Gulden v. O'Bryne, 383. Gulf R. E. Co. V. Owen, 608. Gunby v. Brown, 583. 688 TABLE OF CASES. [THE EEPERENCES Grunton v. Zantzinger, 501. Guy V. Pierson, 513. Guyer v. Wookey, 533, 534. Guynn v. McC^uley, 501. Gwynne v. Neiswanger, 564. Hackett v. Callander, 638. Hadden v. Shoutz, 230. Haddock v. Haddock, 535. Hague V. Hague, 251. Hague V. West Hoboken, 372. Hahn v. Dawson, 50. Hahn v. Kelly, 475, 510. Hairston v. Jandon, 341. Haldeman v. R. E. Co., 55. Hale V. Woods, 289. Hale V. Kenosha, 572. Haley v. Boston, 414. Haley v. G^atewood, 406. Halifax v. Stark, 194. HaU V. Ashby, 254. Hall V. Jarvis, 39, 145. Hall V. Morton, 67. Hall V. Leonard, 182, 216. Hall V. Bumpstead, 222. Hall V. Chapman, 513. Hall V. Hall, 406, 441. Hall V. Dennison, 328. Hall V. Gould, 450. Hall V. Mooring, 603. Hall V. McDufE, 344. Hall V. Law, 604. Hall's Leasee v. Ashby, 242. Hallaian v. Herbert, 454. Halloran v. Whitcomb, 43. Halleek v. Guy, 506. Hallett V. Wylie, 351, 352. Hallyburton v. Carson, 434. Hallas V. Bell, 605. Hamelman v. Mounto, 188. Hamilton v. Lubkee, 315. Hamilton v. Doolittle, 235. Hamilton v; Valiant, 562. Hamilton v. Wright, 353, 604, 607. Hamilton v. Boggess, 604. Hamilton v. Porter, 406. Hamlin v. Express Co., 410, 411, 420. Hammond v. Gordon, 225. Hammond v. Wells, 456. Hancock v. Wentworth, 26. Hand v. Winn, 267. ARE TO PAGES.] Handley v. Wrightaon, 416. Handlin v. Lumber Co., 566. Hanford v. Blessing, 377. Hannahs v. Felt, 461. Hansen v. Eichstaedt, 63. Hanson v. Armstrong, 534. Hanson v. Vernon, 551. Happin v. Doty, 608, 639. Haraden v. Larrabee, 416, 580. Harbeck v. Harbeck, 591. Hardin v. Crate, 184, 208. Hardin v. Osborne, 208, 225, 337. Hardin v. Jones, 535. Hardin v. Governeuer, 603. Harding v. Hale, 257. Harding v. Strong, 535. Harland v. Eastman, 590, 625. Harlowo v. Hudgins, 245. Harman v. Oberdorfor, 208. Harnage v. Berry, 618. Harouska v. Jonke, 214. Harper y. Eowe, 509. Harpham v. Little, 494. Harrer v. Waldner, 264, 546. Harris Case, 257. Harris Estate, 577. Harris v. Glenn, 22. Harris v. Lester, 367, 514. Harris v. Douglas, 438. Harris v. McGovem, 613. Harris v. Fly, 431. Harrington v. Fish, 102, 203, 222. Harrington v. Fortner, 384. Harrington v. WofEord, 527. Harrison v. Boring, 177. Harrison v. Phillips' Academy, 184. Harrison v. Simmons, 214. Harriraan v. Gray, 236. Harryman v. Star, 501. Harshaw v. McKesson, 541. Harshbarger v. Foreman, 452. Hart V. Stone, 361. Hart V. dialker, 388. Hart V. Lindsey, 487. Hart V. Smith, 565. Hart V. Lyon, 364. Hart V. Gregg, 288. Hartford Ore Co. v. Miller, 271, Harthill, In re, 331. Hartshorn v. Dawson, 222. Harv«y v. Lebetter, 257. TABLE OF CASES. 689 [THE BErERENCES Haryey v. Varney, 255. Harvey v. Sullen 's Heirs, 407. Haskill V. Sevier, 384. Haslam v. Campbell, 22. Hastings v. Johnson, 495. Hastings v. Cutler, 76. Hatch v. E. K. Co., 54, 547. Hatch V. Hatch, 152. Hatch V. Bates, 187. Hatch V. Kelly, 583. Hatch V. Buffalo, 636. Hatch V. Bullock, 608. Haughwont v. Murphy, 458. Havens v. Sherman, 492. Haverstick's Appeal, 416. Hawk V. MeOuUough, 188, 232. Hawkiiis v. Champion, 189. Hawkins v. Hawkins, 505. Haworth v. Huling, 482. Haworth v. Taylor, 79. Hawley v. Northampton, 430. Hawley v. Morse, 66. Hawxhurst v. Bathgeb, 290. Hayden v. Buekliu, 457, 459, 522. Hayden v. Stoughton, 407. Haycock v. Stow, 341. Hayes v. Livingston, 43. Hayes v. Shaw, 476. Hayes v. Stiger, 503. Hayes v. Fessenden, 454. Haynes V. Bourn, 18, 575. Haynes v. Boardman, 607. Hayes v. Russell, 508. Hayward v. Ormsbee, 110, 112. Hayward v. Davidson, 277. Hayward v. Cain, 302. Haywood v. Collins, 461, 525. Haxton v. Corse, 576. Hazel V. Hagan, 420, 421. Headley v. Gaundry, 398. Heaton v. Pryberger, 181. Heath v. Heath, 181. Heath v. Hewitt, 216. Heet V. Spears, 453. Hedges v. Paulin, 605. , Hedrick v. Hughes, 136, 612. Heil's Appeal, 488. Heinlen v. Heilbom, 151. Heinsen v. Lamb, 7. , Heller v. Cohen, 602. Warvelle Abs. — 44 ARE TO PAGES.] Hellreigil v. Manning, 216, 634. Hemingway v. Scales, 263. Hemphill v. Davies, 116. Hemstreet v. Burdick, 290, 291. Henderson v. Ford, 292. Henderson v. Whitinger, 320. Henderson v. Downing, 326. Hendrick v. Cleveland, 519. Hendley v. Baccus, 525. Henly v. Hotaling, 377. Henning v. Paschke, 217. Henning v. Pinnet, 502. Henning v. Varner, 411. Hensley v. Baker, 493. Herman v. Deming, 380, 388. Herndon v. Beed, 225. Herrick v. MorUl, 191. Herrick v. Stover, 409. Herriugton v. Williams, 536. Herriiigton v. McCollum, 459. Herrington v. Herrington, 458. Hertig v. People, 368. Hersey v. Turbett, 522. Hess V. Voss, 520. Hetzol V. Barber, 21. Heuser v. Harris, 415. Heustis V. Johnson, 519. Hewes v. Keis, 554, 556. Hewitt V. Week, 72. Hewitt V. Morgan, 205. Heyward v. New York, 55, 547. Hickenbotham v. Blackledge, 505. Hickox V. Greenwood, 454. Hicks V. Skinner, 494. Hickson Lumber Co. v. Gay Lumb. Co., 387. Hickman v. Quinn, 250. Hickman v. Pprrin, 388. Higbee v. Rice, B8. Hightower v. Rigsby, 453. Hightower v. Handlin, 495. Hildreth v. Thompson, 496. Hiles V. Atlee, 72. Hill V. Pranklyn, 22. Hill V. Treat, 36, 405, 450, 583. Hill V. Epley, 65. , Hill V. Miller, 151. Hill V. Reynolds, 302. Hill V. Eessegien, 345. Hill V. Wall, 489. Hillman v. De Nyse, 267. 690 TABLE OF CASES. [the KErEEENCES Hillis V. Hillis, 433. Hilton V. Asher, 201. Himes v. Keighblinger, 207. Hines v. Perkins, 377. Hinkley v. Greene, 28, 605. Hinman v. Warren, 160. Hinsdale v. Thornton, 302. Hinson v. Adrian, 542. Hinton v. MUburn, 416. Hiss V. MeCabe, 224. Hitchcock V. Merrick, 395. Hoadley v. Stephens, 29. Hoard v. Hoard, 513. Hobson V. Ewan, 494. Hobson V. Porter, 274. Hockaday v. Lynn, 34. Hockett V. Bailey, 265. Hochlander v. Hoehlander, 525. Hodges v. Eddy, 606. Hodgen v. Guttery, 523. Hoffman v. Mackall, 329. Hofifman v. Stigers, 264. Hoffman v. Telt, 345. Hogans v. Carruth, 226. Hogue V. Corbit, 492. Holbrook v. Dickinson, 337, 552, 555, 558. Holbrook v. Debo, 239, 240. Holder v. Mount, 581. Holdane v. Cold Spring, 257. HoUoway v. Gallway, 436. Holland v. Kreider, 23. Holland v. Fuller, 273. Holland v. Hohnes, 345, 346, 633; HoUman v. DeNyse, 273. Holm V. Wust, 12. Holman v. Gill, 302, 305. Holmes v. Seely, 26. Holmes v. R. R. Co., 53. Holmes v. Jarret Moon, 250. Holmes v. Johnson, 444. Holmes v. Carondolet, 534. Holmes v. Shaver, 493, 501. Holmes v. McGinty, 394. Holmes v. Evans, 341. Holmes v. Holmes, 489. Holmes v. Mead, 427, 428. Hook V. Fenner, 70. Hooker v. De Palos, 540. Hooper v. Scheimer, 112, 141. Hooper v. Young, 150. ABE TO PAGES.] Hope V. Sawyer, 225. Hope V. Blair, 236, 521. Hopper's Will, 436. Hopping V. Burnham, 496. Hopkins v. McLaren, 457. Hopkins v. McCann, 573. Hopkins v. Medley, 537. Hoppin V. Doty, 608. Hopson V. Commonwealth, 415. Horn V. Cole, 43. Horn V. Metzger, 603. Horubeck v. Westbrook, 181, 183. Horner v. Zimmerman, 255. Hosmer v. Wallace, 142. Hosmer v. Campbell, 314, 315. Hot Springs Cases, 114. Hotchkiss V. Cutting, 504, 524. Houck V. Yates, 170. Hough V. Land Co., 277, 279. Houghton V. Kendall, 416. Houghton V. Hardenburg, 153. Houseman v. Girard Loan Ass'n, 8, 654. Housley v. Lindsay, 501. Houston v. Blackman, 187. Houston V. Houston, 469. Houx V. Batteen, 201. Howard v. Kennedy, 522. Howard v. Howard, 606. Howe V. Thayer, 72, 488. Howe V. Williams, 220. Howe V. Hutchinson, 12. Howe V. Howe, 207. Howland v. Blake, 206. Rowland v. Cemetery Ass'n, 613. Howland v. Shurtleff, 397. Howerter v. Kelly, 524. Hoy V. Allen, 205. Hoyt V. Kimball, 196, 253. Hoyt, In re, 454. Hoyt V. Jaques, 291. Hoyt V. Swar, 266. \ Huber v. Huber, 265. Hubbell's Trust, Be, 352. Huber v. Gazley, 176. Hubbard v. Bell, 46. Hudson V. Putney, 606. Hudson V. Poindexter, 202. Huebsch v. Schell, 187, 374. " Huftalin v. Misner, 508. Hughes v. Wright, 223. TABLE OF CASES. 691 [THE REFERENCES Hughes V. Tabb, 309. Hughes V. Washington, 317. Hughes V. Watt, 301, 510. Hulett V. Inlow, 263. Huls V. Bunten, 605. Humbert v. Trinity Ch., 602, 606. Hungerf ord 's Appeal, 479. Hunnicut v. Peyton, 604. Hunt V. Bowley, 78. Hunt V. Hunt, 45, 248, 417. Hunt V. Johnson, 187, 265. Hunt V. Amidon, 198. Hunt V. Bridge Co., 276. Hunt V. Chosen Friends, 75, 590. Hunt V. White, 408. Hunt V. Haven, 522. Huntt V. Townsend, 308, 311. Hunter v. Watson, 181, 216. Hunter v. Vaughn, 297. Hunter v. Buekner, 389. Hunting v. Walter, 306, 503, 504. Hunton v. Nichols, 613. Hurd V. Brisner, 565. Hurley v. Estes, 371. Husbands v. Jones, 461. Huston V. Seeley, 267. Hutchens v. Doe, 495. Hutehings v. Low, 113. Hutehins v. Carleton, 233. Hutchins v. Kimmell, 591. Hutchinson v. E. E. Co., 232. Hutchinson's Appeal, 485, 486. Hutton V. Williams, 506. Huttenberg v. Main, 341. Hyam v. Edwards, 587. Hyde v. Olds, 328. Hyde v. Tanner, 583. Hyde v. Warren, 394. Hyde Park v. Borden, 360. Hydraulic Co. v. Loughry, 466, 469. m. Land & Loan Co. v. Bonner, 590. Illinois, etc., E. E. v. Johnson, 286. Imp. Pire Ins. Co. v. Gunning, 519. Ingals V. Plamondon, 641. In re Gas Co., 54. In re McLean, 62. In re Fox, 431, 438. In re Chambers, 64. In re Caswell's request, 62, 64. In re Phillips, 204. ARE TO PAGES.] In re Harthill, 331. In re Lewis, 325. In re Eomanow, 325. In re Williams, 441. In re MuUer, 331. In re Carow, 331. In re Sands Brewing Co., 383. In re Hoyt, 454. Indianapolis E. E. Co. v. Boss, 606. Ingle V. Jones, 320. Ingle V. Culbertson, 371. Ingraham v. Grigg, 327. Ins. Co. V. Dake, 72. Ins. Co. V. Waller, 215. Ins. Co. T. Commonwealth, 275. Ins. Co. V. Hallock, 495. Ins. Co. V. Walsh, 253. Ins. Co. V. Scales, 563. Ins. Co. V. Eldridge, 399. Ins. Co. V. Stewart, 255. International Bank v. Sherman, 333. Irvine v. Marshall, 108. Irving V. Brownell, 226, 602. Irwin V. Dixon, 176. Isett V. Stuart, 523. Isham V. Bennington Co., 282. Ishmeal v. Parker, 540. Isler V. Brown, 461. Israel v. Arthur, 513. Ivy V. Olawson, 530. Jacks V. State, 309. Jacks V. Dyer, 561. Jackson v. Ingraham, 16, Jackson v. Hart, 16. Jackson v. Veeder, 21. Jackson v. Vanderheyden, , 24. Jackson v. Alston, 67. Jackson v. Warren, 73, 522. Jackson v. Cary, 183. Jackson v. Schoonmaker, 184. Jackson v. Bard, 184. Jackson v. Leek, 186. Jackson v. Dillon, 187. Jackson v. Meyers, 189, 230. Jackson v. Perkins, 207. Jackson v. Cary, 218. Jackson v. Hudson, 230. Jackson v. Eosvelt, 231. Jackson v. SisBon, 250. Jackson v. Henry, 255. 692 TABIiE OF CASES. [THE Jackson v. Campbell, 280. Jackson v. Bush, 282, 303. Jackson v. Hagaman, 303. Jackson v. Delancey, 304. Jackson v. Merrill, 423. Jackson v. McKenny, 245. Jackson v. Williams, 466. Jackson v. Tuttle, 522. Jackson v. Vermylyea, 606. Jackson v. Andrews, 457. Jackson v. Bobinson, 513. Jackson v. Spink, 496. Jackson v. Young, 496. Jackson v. Hendricks, 575. Jackson v. Browner, 590. Jackson v. Berner, 602. Jackson v. Woodruff, 605. Jackson v. Wheat, 606. Jackson v. Johnson, 606. Jackson v. Moore, 611. Jackson v. Boneham, 587. Jackson v. Harsen, 349. Jackson v. Delecroix, 349. Jackson v. Allen, 350. Jackson v. Bull, 373, 423. Jackson v. Eoberts, 374, 566 Jackson v. Devitt, 374. Jackson v. McChesney, 376. Jackson v. Bobbins, 420. Jackson v. Esty, 564. Jackson v. Morse, 564. Jackson v. Littel, 382. Jackson v. Wood, 397. Jackson v. Housel, 417. Jackson v. Harris, 423. Jackson v. Jackson, 435. Jackson v. Warren, 457. Jackson v. Anderson, 493. Jackson v. Green, 578. Jackson v. Winslow, 236. Jacobus V. Smith, 505. James v. Moore, 14. James v. Stiles, 213. James v. James, 407. James v. Morey, 374. Jamieson v. Hay, 419. Jamison v. Fopiana, 361. Jamison v. Perry, 608. Janes v. Williams, 441. Janvrin v. Fogg, 210. Jarvis v. Dutcher, 344. REFERENCES ARE TO PAGES.] Jarvis v. Peek, 554. "" Jasperson v. Seharnikow, 607. Jassey v. White, 420, 421, 618. - Jecks V. Tousing, 18. Jefferis v. Land Co., 46. JefEers v. EadcUfE, 36. Jelks V. Barrett, 317. Jemison v. Bank, 285. Jenkins v. Voltz, 22. Jenkins v. Eosenburg, 376. Jennings v. Simpson, 476. Johnson v. Mcintosh, 17, 52. Johnson v. United States, 44. Johnson v. Bantoek, 187. Johnson v. Shaw, 209. Johnson v. McGraw, 324. Johnson v. Montgomery, 269. Johnson v. Hess, 486. Johnson v. Brewer, 327. Johnson v. Corbett, 396, 584. Johnson v. Bush, 282. Johnson v. Hubbell, 348. Ilohnson v. Houston, 370. Johnson v. Stagg, 377, 387. Johnson v. Carpenter, 395. Johnson v. Dodge, 540. Johnson v. R. B. Co., 54. Johnson v. Quarles, 257. Johnson v. Johnson, 49, 419. Johnson v. Schloesser, 471, 472. Johnson v. Baker, 503, 509. Johnston v. Haines, 234. Johnston v. Geisriter, 331. Johnston v. Mendenhall, 345. Johnston v. Smith, 560. John Hancock, etc., Co. v. Moore, 587. JoUiff V. JollifE, 544. Jones V. Johnson, 47. Jones V. Roberts, 69. Jones V. Meyers, 78, 114, 142. Jones V. Martin, 225. Jones y. E. E. Co., 197. Jones V. Franklin, 199. Jones V. Monroe, 254. Jones V. Clifton, 261. Jones V. Carter, 289. Jones V. Scott, 300, 302. Jones V. Wood, 339, 422. Jones V. Brewer, 384. Jones V. Bacon, 420. TABIiE OP CASES. 693 [THE REFERENCES ARE TO PAGES.] Jones V. Doss, 452. Jones V. Lapliam, 454. Jones V. Porter, 484. Jones V. Patterson, 613. Jones V. Gardner, 633. Jones V. Jenkins, 640. Jones V. Devore, 555. Jones' Estate, 487. Jonesboro v. McKee, 557. Jordan v. Bradshaw, 302. Joseph V. Biglow, ISS. Joy V. Berdell, 534. Jurael V. Jumel, 256. Kane v. Whittick, 478. Kansas v. R. K. Co., 284. KarmuUer v. Krotz, 195. Karnes v. Harper, 480, 481. Kathan v. Comstoek, 571. Kaufman v. Whitney, 265. Kayser v. Heavenrich, 326. Kean v. Ash, 533. Keane v. Cannonoran, 564. Kearney v. Vaughn, 231, 232. Kearney v. Post, 354. Keating v. Keating, 544. Keegan t. Geraghty, 34, 579, 585. Keeler v. Wood, 195. Keeler v. Keeler, 519. Keemle v. Conrad, 483. Keen v. Preston, 324. Keith V. Keith, 302. Kelley v. Bourne, 182. Kelly V. Hendricks, 43. Kelly V. McGuire, 590. Kelly V. Transportation Co., 277, 279. Keller v. Briekey, 146. Kellett V. Shepard, 411. Kellogg V. Hale, 265, 294. Kleppener v. Laverty, 416. Kemp V. Cook, 477. Kennedy v. Municipality No. 2, 48. Kennedy v. Boundtree, 211. Kennedy v. Merriam, 485. Kennedy v. Kennedy, 416. Kennedy v. People, 524. Kennedy v. Gaines, 321. Kent V. Welch, 198. Kent V, Cantrall, 241. Kent V. Atlantic DeLaine Co., 246, 248. Kentucky Coal Co. v. Sewell, 182. Kenyon v. See, 19, 252. Kenyon v. Quinn, 303. Kenzie v. Eoleson, 411. Kerfoot v. Cronin, 100, 193. Kerfoot v. Breckenridge, 539. Kerr v. Dougherty, 406. Kerr v. Birnie, 208. Kerr v. Verner, 295. Kerr v. Hitt, 613. Kerr v. Agard, 375. Ketohum v. E. K. Co., 297. Keyes v. Seanlan, 545. Kidder v. Aholtz, 454. Kille V. Eye, 207, 208. Kimball v. Walker, 232. Kimball v. Blaisdell, 240. Kimm v. Weippert, 262. Kineaid v. Dormey, 78. Kincaid v. Tutt, 504. King V. Eea, 189, 267. King V. Whiton, 300. King V. Ruckman, 340, 342. King V. Y. M. Ass'n, 452. King V. Kent's heirs, 511. King V. Blood, 524. King V. Goodwin, 493. Kingman v. Barton, 328. Kinsley v. Ames, 393. Kinsman v. Loomis, 236. Kirby v. Bunals, 473, 481. Kirk V. Burkholtz, 189. Kirk V. Vanberg, 303. Kirkaldie v. Larrabee, 42. Kirkland v. Cox, 294, 295. Kirkpatriek v. Chestnut, 431. Kirtz V. Behrensmeyer, 488. Kister v. Eeeser, 194. Klein v. McNamara, 375. Kleppner v. Laverty, 472. Knap V. Bailey, 65. Knapp V. Brown, 454. Kneeland v. Van Valkenburgh, 218. Knight V. Waterman, 327. Knight V. Mahoney, 424. Knotts V. Steams, 502. Knowlton v. Moore, 553. Knox V. Brady, 268. Knox V. Leidgen, 555. Knox V. Cleveland, 569, 570. Knox V. Baton Rouge, 533. 694 TABLE OF CASES. [the references Knox V. Jones, 430. Koehler v. Ball, 504. KoeUe v. Knecht, 363, 364. Koerper v. Ey. Co., 70. Korn V. Cutler, 417. Kostenboder v. Spotts, 503. Krant v. Crawford, 46. Kreichbaum v. Melton, 382. Kroll V. KroU, 262. Kruger v. Knob, 566. Kruse v. Wilson, 192, 228, 302, 304, 604, 608. Kruse v. Scrips, 79. Kruson v. Kruson, 533. Kurtz V. Hibner, 409. Kurtz V. Sponable, 394. Kyle V. Kavanagh, 345. La Framboise v. Crow, 24, 270. La Plante v. Lee, 319. Laberee v. Carleton, 187. La?ey v. Davis, 565. Ladd V. Harvey, 406. Laird v. Boyle, 352. Lake v. Gray, 563. Lake Erie R. B. Co. v. WMtham, 204, 225. LaUerstedt v. Jennings, 406. Lamar Co. v. Clements, 176. Lamar v. Turner, 193, 300. Lametti v. Anderson, 352. Lammers v. Nissen, 46, 170. Lamb v. Davenport, 118, 387. Lamb v. Wakefield, 199, 249. Lambert v. Smith, 188. Lambert v. Livingston, 479. Lampman v. Milks, 640. Lamprey v. State, 170. Lancaster v. Wilson, 521. Land v. Keirn, 465, 479. Landts v. Brant, 303. Lane v. Dover, 113. Lane v. Soulard, 180. Lane v. Debenham, 308. Lane v. Gould, 605. Lanfair v. Lanfair, 376. Lanford v. Patton, 467. Lang V. Phillips, 470. Langdon v. New York, 157. Langsdale v. Mills, 500. ABE TO PAGES.] Langdeau v. Hanes, 52, 139, 145, 146. Lain v. Cook, 567. Lanier v. Booth, 26, 640. Lansing v. Smith, 161. Laramore v. Minish, 601, 602. Larder v. CoUins, 32. Large v. Fisher, 567. Lassell v. Powell, 492, 507. Lash V. Hardick, 469. Lash V. Lash, 546. Latham v. Smith, 210. Lathrop v. Brown, 466. Lathrop v. Snell, 240. Lathrop v. Am. Emig. Co., 479. Latta V. Tutton, 475. Lattin v. Gillette, 6, 9. Laughlin v. Pream, 214. Laverty v. Moore, 605. Lawe V. Hyde, 183. Lawrence's Will, 436. Lawrence v. Parley, 207. Lawrence v. Ball, 397. Lawrence v. Belger, 466. Lawrence v. Past, 472. Lawrence v. Englesby, 489. Learned v. Welton, 308. Leavell v. Poore, 458. Leaver v. Gauss, 247. Leazure v. Hillegas, 277. Le Beau v. Armitage, 51. Lee V. Buggies, 536. Leeming v. Sheratt, 419. Lease v. Clark, 156. Lessee of Johnston v. Haines, 234. Lefevre'v. Lefevre, 428. Legget V. Doremua, 21. Leitch V. Wells, 73, 457, 522. Leiter v. Sheppard, 19, 413. Lehndorf v. Cope, 189, 241. Leland v. Wilson, 300, 301. Lennartz v. Quilty, 400. Lenox v. Clark, 301, 510. Leon Loan Co. v. Equalization Bd., 13. Leonard v. Diamond, 295. Leonard v. Sparks, 492. Le Franc v. Eichmond, 202. Le Moyne v. Quimby, 318. LeRoy v. Jamison, 150, 153, 154, 155. Leupold V. Kruse, 23. TABLE OF CASES. 695 [the befeeences Levi V. Thompson, 134. Levy V. Levy, 378. Levy V. Griffiths, 421. Lewis, In re, 325. Lewis V. Aylott, 405. Lewis V. Owen, 483. Lewis V. Marshall, 75, 587. Lewis V. Darling, 405, 432. Lewis V. Overby, 202. Lewis' Appeal, 41. Liddel v. MeViekar, 583. Life Ass'n of America v. Fassett, 476. Life Ins. Co. v. Norton, 58. Life Ins. Co: v. Smith, 279. Life Ins. Co. v. White, 284, 390. Lick V. Eay, 637. Light V. West, 563. Liles V. Woods, 527. Lincoln v. Davis, 49. Lindley v. O'Eeily, 442. Lindsay v. Fry, 604. Liudsey v. Bates, 452. Lindsey v. Thompson, 41. Lines v. Lines, 296. Lingen v. Lingen, 574. Linker v. Long, 245. LiUard v. Euckers, 250. Lilly V. Palmer, 374. Lirette v. Carrane, 472. Litchfield v. Burwell, 526. Little V. Harvey, 469. Little V. Paddelford, 11. Little V. Megquier, 604. Little V. Dodge, 268. Little V. Giles, 424. Littlejohn v. Bgerton, 22. Livermore v. Maxwell, 400. Littleton v. Giddings, 64. Livingstone v. McDonald, 224. Lloyd V. Bunee, 220. Loeke v. Caldwell, 397. Lockett v. James, 24. Lockhart v. Wyatt, 326. Lockwood v. B. E. Co., 46. Loekwood v. Sturdevant, 318. Logan v. Steel, 42. Logan V. Ward, 607. Logansport v. Dunn, 177. Lombard v. Culbertstand, 72. Lombard v. Sinai Congregation, 287. AEE TO PAGES.] Long v. Hewitt, 34. Long V. Wagoner, 190. Long V. Shelby Co., 357. Long V. Mostyn, 386. Long V. Weller, 503. Long V. Barker, 518. Long V. Linn, 535. Long V. Burnett, 567. Loomis V. Eiley, 302, 522. Looney v. Adamson, 268. Lorrillard v. Coster, 430. Loughridge v. Bowland, 69. Louisville Dry Goods Co. v. Lan- man, 325. Louisville School Board v. King, 56. Loving V. Paire, 329. Levering v. Allen, 433. Lovett v. Steam Mill Assn., 282. Lovingston v. St. Clair Co., 46. Low V. Graff, 216. Lowns V. Eemsen, 477. Lowry v. Davis, 388. Loyless v. Blackshear, 250. Lucas V. Harris, 398. Luce V. Durham, 408. Lum V. McCarty, 60, 63. Luppie V. Winans, 585. Lupton V. Lupton, 429, 431. Lyon V. Vannatta, 321. Lyon V. Hunt, 564. Lyon V. Marsh, 420, 421. Lyon V. Kain, 213, 487, 574. Lytle V. Arkansas, 114. Lytle V. Beveridge, 407. McAlister v. Butterfield, 408. McAllister v. Plant, 393. McAllister v. McAllister, 428. McArthur v. Browder, 157. McAusland v. Pundt, 492. McBane v. Wilson, 466. McCabe v; Eaney, 43. McCabee v. Mazzuchelli, 162. McCall V. Niely, 604. MeCardia v. Billings, 222, 223. McCarley v. Supervisors, 202. McCartrey v. Kittrell, 472. McCarty v. Carter, 454. McCartney v. King, 493. MeChesney v. Brown's Heirs, 262. McCraney v. McCraney, 269. 69G TABLE OF CASKS. [THE RETEEENJES McCready v. Sexton, 565, 569. McClellan v. Darrah, 540. McCIellan v. Kellogg, 602. MeClintie v. Oeheltree, 262. MeClintock v. Rogers, 78. McClure v. Burris, 395. McGlurg V. Phillips, 384. McClurken v. Logan, 456. McClurken v. Detrich, 540. McConnell v. Smith, 320, 413. McConville v. HoweU, 578. McCoraher v. Commonwealth, 104. McCormick v. SuUivant, 29. McCormaek v. Patehin, 552. McCormick v. Huse, 171. McCowan v. Foster, 512. McCoy V. Morrow, 582, 583. McCracken v. San Francisco, 361. McCurdy v. Canning, 263. McDaniel v. Johns, 246. McDermid v. Eussell, 524. McDonald v. Gregory, 41. McDonald v. Life Ins. Co., 502. McDonald v. Edmonds, 141. McDonald v. Bear River Co., 289. McDonald v. Smalley, 157. McDuff V. Beauchamp, 263, 264. McFarland v. Febiger, 269. McGan v. O'Neil, 536. McGarrahan v. Mining Co., 151, 154, 155. McGinty v. McGinty, 296. McGoon V. Scales, 29, 188. McGowan v. McGowan, 322. MeGraw v. Bayard, 520. McGrew v. McCarty, 455. McGuire v. Van Pelt, 394. McGuire v. Stevens, 341. McHany v. Schenk, 504. Mclntyre v. Storey, 50, 518. Mclntyre v. Mclntyre, 532. Mclntire v. Benson, 327. Mclver v. Walker, 158. McKennan, In re, 553. McKinney v. Stewart, 33. MoKinney v. Settles, 188. McKinzie v. Steele, 43. McLane c. Bovee, 113. McLangan v. Brown, 502. McLaughlin v. McLaughlin, 427. McLaughlin v. McOroby, 526. ABE TO PAGES.] McLaughlin v. Thompson, 555. McLaughlin v. Ihmsen, 389. McLaurie v. Partlow, 296. McLean v. In re, 62. McLean v. McBean, 581. McLendon v. State, 524. McLouth V. Hurt, 69. . McMicken v. U. S., 109. McMillan v. Warner, 22. McMillan v. Edwards, 304. McMullen v. Lank, 307. McNab V. Young, 634. McNeeley v. Langan, 607. McNeil V. Kendall, 355. McPherson r. Rollins, 400. MeQuiddy v. Ware, 610. McQuie V. Peay, 384. MeVey v. MeQuality, 287, 376. McWhorter v. McMahon, 341. Mabury v. Euiz, 542. Maehemer, Estate of, 432. Mack V. Brown, 525. Mack V. Wetzler, 370, 396. Mackay v. Bloodgood, 202. Mackie v. Cairns, 326. Mackie v. Story, 408. Madden v. Barnes, 452. Magee v. Mellon, 301. Maghee v. Robinson, 638. Magruder v. Esmay, 141. Magness v. Arnold, 224. Magill V. Hinsdale, 289. Magnolia v. Marshall, 46. Magruder v. Esmay, 113. Mahar v. O'Hara, 405. Mahoney v. Middleton, 535. Main v. Cumston, 364. Mandeville v. Welch, 344. Maleom v. Allen, 383. Mallory v. Fergusen, 10. Mallory v. Mallory, 257. Malone, In re, 597. Mallony v. Horan, 24, 43, 269. Manderschid v. Dubuque, 176. Manf. Co. v. East Saginaw, 552. Mangold v. Barlow, 69. Mangae v. Mangue, 591. Mann v. Reigler, 27. Mann v. Best, 236. Manley v. Gibson, 177. Mansfield v. Hoagland, 495. •table of cases. 697 [the references Mapes V. Scott, 142. Marburg v. Cole, 263. Harden v. Chase, 235. , Markwell v. Thome, 442. Markoe v. Andras, 453. Marling v. Marling, 540. Marsh v. Chestnut, 558. Marsh v. Griffin, 608. Marshall v. Marshall, 530. Marshall v. Roberts, 235. Marshall v. Rose, 573. Marshman v. Conklin, 482. Martin v. Ry. Co., 252, 284. Martin v. Wyncoop, 323. Martin v. Martin, 258. Martin v. Beasley, 318. Martin v. Kirby, 419. Martin \. Dryden, 450. Martin v. Williams, 489. Martin v. Judd, 633. Martin v. Zellerbaeh, 43. Martindale v. R. R. Co., 277. Martinez v. Vives Succession, 586. Marvin v. Smith, 24, 269, 295. Marvin v. Titsworth, 369. Marvin v. Duteher, 530. Marx V. Hawthorn, 565, Matney v. Graham, 303. Mathews v. Blake, 567. , Matthews v. Skinner, 275. Matthews v. Eddy, 505. Matthews v. Demerritt, 639. Mattis v. Robinson, 608. Mattocks V. Brown, 245. Mattox V. Hightshue, 43, 271. Mash V. Russell, 386. Masonry. Osgood, 320. Mason v. Gray, 372. Mason v. Ainsworth, 395. Mason v. Brock, 181, 225. Mason v. Jones, 408. Massie v. Watts, 535. Massingill v. Downs, 467, 469. Masterson y. Check, 208. Mastin v. Halley, 222. Maunday v. Vail, 479, 482, 521. Maul v. Rider, 68. Mauldin v. Cox, 602. Maurior v. Coon, 303. Maurr v. Parish, 511. Maxwell v. Hartman, 73. ARE TO PAGES.] Maxwell v. Dental Mfg. Co., 387. Maxwell v. Jonesbro, 357. Maxwell v. Stewart, 472. May V. Le Clair, 236. May V. Fletcher, 580. May V. Baker, 461. Mays V. Rogers, 583. Maxbury v. Ruiz, 542. Mayo V. Libby, 39, 146. Mayo v. Wood, 41. Mayo- V. Foley, 301, 510. Meade v. Jennings, 415. Meach v. Fowler, 184. Mcacham \. Steele, 502. Meaehan v. Williams, 66. Meader v. Norton, 51. Meagher v. Thompson, 290. Mears v. Howarth, 518. Meelianics Bid. Assn. v. Whitacre, 8. M. E. Church v. Hoboken, 50. Methodist Church v. Chicago, 552. Meek v. Breckenridge, 26. Meek v. Bunker, 496. Meeker v. Meeker, 186. Meetze v. Padgett, 507. Mehau v. Williams, 453, 640. Megerle v. Ashe, 116, 136, 146. Meister v. Moore, 591. Melia v. Simmons, 512. Melvin v. Waddel, 613. Melvin v. Clark, 525. Melvin v. Whiting, 45, 611. Menage v. Burke, 182. Mendenhall v. Treadway, 458. Merchant v. Woods, 398. Meredith v. Little, 479, 521. Merriam v. Dovey, 565. Merrick v. Merrick, 410. Merrick v. Hutt, 461. Merrill v. Bickford, 431. Merrill v. Emery, 420. Merrill v. Burbank, 361. Merrill v. Burbank, 186. Merrill v. Hutchinson, 236, 237. Merrill v. Montgomery, 282, 525. Merritt v. Merritt, 22. Merritt v. Disney, 189. Merritt v. Yates, 224. Merritt v. Morton, 579. Merritt v. Brantly, 423. Messerschmidt v. Baker, 508. 698 TABLE OF CASES. [THE REFERENCES Metcalfe v. Brandon, 208. Meyer v. Graeber, 383. Meyer v. Pegaly, 487, 488. Meyer v. McDougal, 583. Meyers v. Buchanan, 71. Meyers v. Croft, 113, 114, 117. Meyers v. Ladd, 192. Meyers v. Eeed. 263. Meyers v. Anderson, 413. Meyers v. Easback, 518. Meyers v. Tyson, 469. Mick V. Mick, 578. Middleton v. Smith, 190. Middleton v. Findla, 201. Middleton Sav. Bk. v. Bacharacji, 560, 561. Milford V. Worcester, 589. Millard v. McMuUen, 610. Miller v. Bledsoe, 575, 581. Miller v. Mills, 525. Miller v. Euble, 200. MiUer v. Ware, 232. Miller v. Thompson, 255. Miller v. Corey, 340. Miller v. Flournoy, 410, 411. Miller v. Handy, 509, 523. Miller v. Sherry, 457, 458, 460. Miller v. Aldrieh, 383. Miller v. Wilson, 303, 493. Miller v. Ewing, 236. Miller v. Marx, 23. Miller v. Lapham, 27. Miller v. Williams, 31. Miller v. Hepburn, 48. Millett V. Pease, 525. Millikan v. Patterson, 565. Mills V. Hoag, 478. Miltmore v. Miltmore, 546. Miner v. Brown, 265. Miner, In re, 597. Miners Ditch Co. v. Zellerbaeh, 282. Mines v. Mines, 69. Mining Co. v. Herkimer, 276. Minnesota, etc., Co. v. McCrossen, 290. Mlnot V. Curtis, 428. Minot V. E. E. Co., 552. Mirfitt T. Jessop, 413. Mitchell V. Pettee, 42. Mitchell V. Mitchell, 246. Mitchell V. Sehoonover, 470. AEE TO PAGES.] Mitchell V. Haven, 301. ^ Mitchell V. Winslow, 387. Mitchell V. Burnham, 395. Mitchell V. Wood, 466. Mitchell V. Eobertson, 534. Mitchell V. Williams, 551. Mitchell V. Bartlett, 207. Mix V. French, 582. Mod. Woodmen v. Gerdom, 586. Moffat V. Carrow, 415. Moffitt V. Mofatt, 511, 513. Mohr V. Tulip, 511, 514. Moisten v. Hobbs, 199. Moingona Coal Co. v. Blair, 565, 613. Monaghan v. Small, 503. Monroe v. Jones, 417. Montague v. Dawes, 314, 393. Montgomery v. Johnson, 192, 512. Montgomery v. Hornberger, 223. Montgomery v. Dorion, 289. Montz V. Hoffman, 265. Moody V. Fialar, 452. Moody V. Moody, 602. Mooers v. White, 434. Mooney v. Cooledge, 195. Moore v. Jordan, 116. Moore v. Wilkinson, 138. Moore v. Eobbins, 150. Moore v. Moore, 210. Moore v. Simmons, 250. Moore v. Pickett, 366. Moore v. Wade, 375. Moore v. Cornell, 394. Moore v. Neil, 498. Moore v. Aldermen, 547. Moore v. Burrows, 340, 584. Moore v. Chandler, 573. Moore v. Lyons, 419. Moore v. Giles, 208. Moore v. Snow, 155. Moran v. Dillehay, 407, 416. Morau v. Palmer, 154. Morano v. Shaw, 8. Moreland v. Lawrence, 520. Morgan v. Curtenius, 116. Morgan v. Clayton, 198, 235. Morgan v. Bergen, 341. Morgan v. Pope, 419. Morgan v. Bause, 494. Morgan v. Hammett, 374. Morice v. Bishop of Durham, 427. TABLE OF CASES. 699 [the befekences Morley v. Daniel, 245. ' Morrill v. Chapman, 113. Morrill v. Noyes, 387. Morrill v. Graham, 655. Morris v. Candle, 181. Morris v. MoMorris, 210. Morris v. State, 368. Morris v. Bobey, 493. Morris v. Sehallsville, 547. Morris v. Halbert, 596. Morris v. Turnpike Boad, 55. Morris v. Hogle, 503, 513. Morrison v. Caldwell, 42, 184. Morrison v. Rossignol, 353. Morrison v. Kelly, 65. Morrison v. Morrison, 66. Morrison v. Seybold, 264. Morrison v. King, 640. Morrison v. Silverburgh, 524. Morrow v. Scott, 31. Morrow v. Weed, 511. Morrow v. Wlitney, 52, 139. Morse v. Carpenter, 182. Morton v. Greene, 534. Moseley v. Mastin, 102. Moshier v. Meek, 452. Mosheimer v. tJasleman, 586. Moseley v. Wingo, 440. Moss V. Atkinson, 341. Moughon V. Masterson, 385. Moulton V. Macarty, 484. Mounce v. Beyers, 344. Mount Pleasant v. Breese, 357. Mountour v. Purdy, 497. Mowry v. Crocker, 329. Mulford V. Beveridge, 321. Mulford V. Peterson, 394. Mullanphy Savgs. Bank v. Schott, 284, MuUins V. Aiken, 503. Mulling v. Sparks, 525. Mumford v. Whitney, 27. Mundorf v. Howard, 348. Murdock v. Ward, 416. Murfree v. Carmack, 470. Murphy v. Gabbert, 247. Murphy v. Mayor, etc., 636. Murphy v. McGrath, 368. Murphy v. Hendricks, 380. Murry v. Blaokledge, 182. Murry v. Lybum, 458. ARE TO PAGES.] Musgrove v. Bonser, 70. Mushlitt V. Silverman, 453, 455. Musick V. Barney, 69. Musser v. Hershey, 160. Musser v. McRea, 152. Myler v. Hughes, 479. Myer v. Ladd, 223. Myer v. McDougal, 320. Myer v. Wilson, 467. Nash V. Towne, 257. National Bank v. Jaggera, 485. Neal V. Nelson, 216. Neal V. Speigle, 543. Negbauer v. Smith, 192. NefE V. Pennoyer, 510. Neiswanger v. Gwyne, 556. Nellia v. Lathrop, 608. Nelson v. Ferris, 394. Nettleton's Appeal, 553. Nevius V. Gourley, 423. New V. Sailors, 381. Newell V. Newell, 187. Newell V. Nichols, 588. Newbold v. Boone, 410. Newcomb v. Presbrey, 198. Newcomer v. Wallace, 318. Newman v. Jenkins, 586. Newman v. Fisher, 330. Newman v. Willetts, 442. Newton v. Fisher, 63. Newton v. McKay, 183. Newsom v. Thompson, 250. Neufville v. Stewart, 366. Nichols V. Nichols, 124. Nichols V. Emery, 296. Nichols V. Postlethwaite, 432. Nichols v. Mitchell, 511. Nicholson v. Caress, 188, 235. Nicol V. B. E. Co., 547. NicoU V. Scott, 320. Niles V. Sprague, 589, 590. Nixon V. Downey, 527. Nixon V. Cobleigh, 500. Nixon's Appeal, 257. Noland v. Barrett, 501. North V. Belden, 388. North V. Knowlton, 388. Norton v. Kearney, 327. Norton v. Eeardon, 501. Norton v. Dow, 524. 700 TABLK OF CASES. [THE REI'ERENCES Norris' Case, 330. Norris v. lie, 458, 460. Norvell v. Walker, 202. Norris v. Thompson's Heirs, 427. Nowell V. Bragdon, 583. Nowlin V. Iteynolds, 603, 607. N. W. Iron Co. v. Mead, 540. Nugent V. E. B. Co., 43. Oakes v. Williams, 466. Oaksmith v. Johnson, 612. Oates V. Beckwith, 611. O'Brien v. Perry, 112. O'Brien v. Gaslin, 504. O'Brien v. Creig, 536. Ochoa V. Miller, 303, 440. Ochiltree v. McClnrg, 186. Odd Fellow's Bank v. Banton, 388. Odiorne v. Wade, 45. Odell V. Montross, 371, 372, 375. Odle >-. Odle, 522. O'Gara v. Eisenlohr, 586. O 'Grady v. Barnishel, 565. Ogden V. Jennings, 26. Ogden V. Walters, 223. Ogden V. Walkers, 388. Ogle V. Turpin, 342. Okeson's Appeal, 431. Olcott V. Bobinson, 497. Olds V. Cummings, 395. Olive V. Armour & Co., 326. Oliver v. Stone, 207. Oliver T. Crosswell, 540. Oliver v. Bobinson, 554. Oliver v. Pratt, 236. Oliver V. Craswell, 614. Olney v. Hall, 425. Olson V. Merrill, 46. Omnia nny v. Butcher, 428. Or. & Wash. Trust Co. v. Shaw, 375. Orendorff v. Stanberry, 523. Ormsby v. Terry, 503. O'Eourke v. 'Conner, 608, 639. Orrick v. Boehm, 432, 433. Orr V. O'Brien, 441. Orthv^ein v. Thomas, 591. Osborn v. Adams, 29. Ostrom V. Curtis, 520. Osterberg v. Union Trust Co., 555. Osgood V. Blackmore, 497. Osgood V. Abbott, 196. ARE TO PAGES.] Oswald V. Gilfert, 353. Ottawa V. Spencer, 552. Overseers v. Sears, 279. Owen V. Baker, 225. Owen V. Williams, 246. Owen V. Eeed, 311. Owen V. Navasota, 493. Owens V. Miss. Sec, 428. Oxley V. Lane, 410. Oxnard v. Blake, 207. Pa,c. Coast M. & M. Co. v. Sprago, 155. Packard v. Ames, 196. Padgett v. Lawrence, 183. Page V. Eogers, 28. Page V. Palmer, 196. Page V. Greely, 346. Page V. Trutch, 655. Paige V. Sherman, 187. Paige V. Chapman, 395. Paige V. Foust, 417. Paine v. HoUister, 262. Paine v. Hutchins, 613. Palmer v. Palmer, 208. Palmer v. Ford, 253. Palmyra v. Morton, 357. Panola Co. Sup. v. Gillen, 455. Pardon v. Dwire, 525. Paris V. Mason, 54. Parish v. Ward, 578. Park Comm'rs v. Armstrong, 55. Park Comm'rs v. Taylor, 49. Parker v. Poy, 187. Parker v. Sexton, 556. Parker v. Parker, 411. Parker v. Parmlee, 345. Parkhurst v. Bace, 521. Parks v; Hall, 371. Parks V. Parks, 408. Parks V. Jackson, 460. Parkinson v. Trousdale, 459. Parmley v. Buckley, 344. Parrat >. Neligh, 501. Parrett v. Shabhut, 69, 203. Parsel v. Stryker, 354. Parsell v. Thayer, 389. Parsley v. Nicholson, 482. Parsons v. Noggle, 372, 449. Parsons v. Wells, 541. Parsons v. Hoyt, 458. TABLE OP CASES. 701 [THE REFERENCES Parsons v. Venzke, 78. Parsons v. Commissioners, 127. Passmore's Appeal, 419. Patch V. White, 410. Pate V. Bushong, 19, 410. Patterson v. Swallow, 433. Patton V. Hoge, 377. Payson v. Hadduck, 582. Peabody v. Hewitt, 214. Peabody v. Brown, 182. Peak V. Wendel, 112. Peak V. L/igon, 479. Pearse v. Pearse, 624. Pearson v. Bradley, 498. Pearsons v. Tucker, 456. Pease v. Pilot Knob I. Co., 618. Peay v. Little Rock, 552. Peck T. Arehart, 231, 232. Peck V. Merrill, 324. Peck V. Clapp, 638. Peckham v. Haddock, 230, 415. Peel V. January, 490. Pegues V. Wariey, 608. Peine v. Weber, 274. Pendleton v. Button, 205, 226. Pennook's Estate, 429. Pensouneau v. Bleakley, 289. People V. E. R. Co., 46. People V. Lincoln Pk. Comrs., 161. People V. Marshall, 551. People V. Bradley, 552. People V. Biggins, 558, 559. People V. Snyder, 206, 208. , People V. Gkites, 211. People V. Herbel, 243. People V. Livingstone, 17. People V. Conklin, 56. People V. Terry Co., 161. People V. Morrill, 160. People V. Brislin, 479. People V. Mauran, 547. IPeople V. Gilbert, 612. People V. Reat, 557. People V. Bemal, 525. People V. Richards, 60, 63. People V. Circuit Judge, 321. Peoria v. Darst, 231. Pepper v. O'Dowd, 605. Perkins v. Dibble, 302. Perkins v. Pitts, 398. Perkins v. Wakeham, 526. ARE TO PAGES.] Perkins v. Simmonds, 580. Perkins v. Swank, 639. Perry v. Big Rapids, 13. Peter v. Veberly, 432. Peters \. Spillman, 406. Peters v. Phillips, 341. Petition of Bateman, 268. Petersine v. Thomas, 479. Peterson v. Clark, 377. Pcttibone v. Griswold, 381. Pettibone v. Hamilton, 533. Pettit V. Black, 440. Pettit V. Cooper, 479. Petty V. Beers, 570. Peugh V. Davis, 369, 375. Peyton v. Jeffries, 25. Phelps V. Smith, 116, Phelps V. Simons, 264. Phelps V. Curtis, 326. Phillips V. Coffee, 281, 496. Phillips V. Stevens, 352. Phillipsburgh v. Buroh, 406. Pick V. Strong, 444. Picket V. Dowling, 53. Pickering's Estate, 591. Pickering v. Langdon, 410, 411. Piel v. Brayer, 492. Pierce v. Milwaukee R. R. Co., 387. Pierre Mutelle Case, 153. Pike v. Galvin, 373. Pike V. Brown, 255, 349. Pike V. Wassell, 57. Pile V. McBratney, 592. Pillow V. Helm, 453. Pillsubury v. Mitchell, 199. Pillsbury v. Kingon, 325. Pingree v. McDuffe, 26, 640. Pingree v. Watkins, 198, 235. Pinkham v. Pinkham, 247. Pinney v. Fellows, 608, 638, 639. Pinney v. Russell, 487. Pitts V. Singleton, 316. Pitts V. Mesler, 440. Plater v. Cunningham, 353. Plumb V. Tubbs, 252. Poe V. Hardie, 22: Pollock V. Buie, 489. Pollock V. Maison, 397. Pollard V. Hogan, 160. Pomeroy v. Stevens, 67, 638. Pool V. Potter, 291. 702 TABLE OF CASES. [THE REFERENCES Pope V. Chitler, 442. Poplin V. Mundell, 79. Port V. Port, 591. Porter v. Sullivan, 240. Porter v. Purdy, 512. Porter v. Vaughan, 531, Porterfield v. Taliaferro, 582. Post V. Kearney, 353. Potter V. Stevens, 394. Potts V. Davenport, 22, 508. Powell V. Smith, 374. Powell V. Knox, 466. Powell V. Rogers, 479, 495. Power V. Cassidy, 427. Powers V. Jackson, 171. Powder Co. v. Loomis, 454. Pratt v. Pratt, 372. Prescott V. Morse, 320. Preston v. Morris Case Co., 394. Preston v. Van Gorder, 555. Prettyman v. Barnard, 482. Prettyman v. Wilkey, 232. Pribble v. Hall, 268. Price V. Osborn, 267. Prim V. Babateau, 519. Pringle v. Dunn, 69, 73, 193, 205, 300. Pritchard v. Brown, 66, 638, 639. Prpbaseo v. Johnson, 377. Proctor V. Bigelow, 590. Prouty V. Mather, 301. Provenchere 's Appeal, 416. Providence v. Adams, 41. Propst V. Meadows, 519, 520. Proudfoot V. Saffle, 26. Pryor v. Downey, 513. Pugh V. Holt, 371, 376. Pullan V. K. E. Co., 275. Putnam v. Bicknell, 182, 261. Pryor v. Downey, 513. Pynchon v. Sterns, 228. Quimby v. Conlan, 530. Quinn v. Kenyon, 116. Quinn v. Bawson, 367. Eacine v. Emerson, 178. Raines v. Walker, 208. Raley v. Guinn, 565. Bamsdell v. Eamsdell, 420. Rand v. Sanger, 418. Band v. Meir, 420. AEE TO PAGES.] Randall v. Edert, 142. Randall v. Songer, 527. Randolph v. Land Co., 295. Randolph v. Carlton, 461. Randolph v. Metcalf, 472. Randolph v. State, 61. Rankin v. Miller, 321. Rankin v. Schaeffer, 7. Rankin v. Dulaney, 525. Rannels v. Rannels, 606. Rathgerber v. Dupy, 453, 455. Eawles v. Jackson, 495. Rawlings v. Bailey, 820. Rawson v. ¥ox, 605. Ray V. Thompson, 469. Raybum v. Kuhl, 565. Raymond v. Haider, 610. Read v. Whittemore, 42. Read v. Gather, 429. Reasouer v. Markley, 118, 387. Redden v. Miller, 608, 638, 639. Reddick v. Bank, 528. Eedfield Mfg. Co. v. Dysart, 187. Reed v. Ash, 270. Reed v. Jones, 342. Reed v. Bradley, 281. Beed v. Pelletier, 326. Reed v. Lukens, 340. Reed v. Reed, 419, 429. Reed's Appeal, 466. Reed's Adm'r v. Reed, 429. Bees V. Chicago, 176. Beeves v. Kimball, 344. Beid V. Bd. of Education, 177. Reid V. Merriam, 567. Reid V. Heasley, 303. Reid V. Shergold, 619. Reinders v. Kappelmann, 34. Reinhart v. Schuyler, 558. Remington Pap. Co. v. O 'Dougherty, 209. Remington v. Linthicum, 505. Rhienstrom v. Cone, 210. R«uter v. Stuckart, 601. Rex V. Matherseal, 440. Eeynolds v. Harris, 508. Eeynolds v. Schmidt, 511. Eeynolds v. Scott, 371. Bhodes v. Blackiston, 334. Bice V. R. R. Co., 147. Eice V. Kelso, 387. TABLE OF CASES. 703 [the references Bice V. Bunoe, 43. Bice V. Dewey, 388. Bice V. Lumley, 546. pich V. Doane, 371. Bichards v. Green, 23. Eichards v. Miller, 412, 416. Bichards v. Bent, 199. Eiehards v. Crawford, 376. Eichardson v. Thonipson, 524. Bichardson v. Clow, 187. Eichardson v. Wicker, 493. Eicheson v. Crawford, 451. Bichmond v. Gray, 15. Eiddle v. Bush, 301, 496. Bidgeway v. Holliday, 609. Bidgeway'a Appeal, 486. Eied V. Holmes, 476. Eieger v. Schaible, 262. Eigdon V. Shirk, 636. Bigg V. Fuller, 610. Biggin V. Love, 194, 249. Biggs V. Boylan, 69, 70. Bigney v. Chicago, 54.' Eigor V. Prye, 27. Bindge v. Baker, 364. Bines v. Mansfield, 228. Einghouse v. Keever, 580. Bings V. Woodruff, 603. Eipley v. Harris, 388. Bipley v. Gage Co., 455. Eitchie v. Griffiths, 72. Eivard v. Gardner, 482. Eivers v. Thompson, 554, 556, 558. Eix V. Smith, 489. Boane v. Baker, 470. Boberson v. Wampler, 182, 216. Boblns V. Bunn, 117. Eoberts v. Clelland, 508. Eoberts v. Eoberts, 322. Eoberts v. Bassett, 346, 633. Eoberts v. Stowers, 527. Eoberts v. Bichards, 602. Bobertson v. Guerin, 300. Eobertson v. Johnson, 415. Bobertson v. State, 591. Bobinson v. Douthitt, 41. Eobinson v. Swift, 519. Bobinson v. Le Grand, 412. Eobinson v. Bates, 24. Bobinson v. Payne, 194. Eobinson v. Eagle, 263, 264. ARE TO PAGES.] Eockwell V. Brown, 186. Eockwood V. Davenport, 471, 472. Boche V. Ullmann, 364, 365. Boderigas v. Savings Institution, 512. Eodgers v. Bell, 534. Eodgers v. Bonner, 468. Bodmau v. Selligman, 553. Bogan V. Walker, 196. Eogers v. Clemmans, 117. Eogers v. Green, 524. Eogers v. Sinsheimer, 364. Eogers v. Eenshaw, 23. EoUin v. Cross, 456. Eollin V. Pickett, 219, 231. BoUo V. Nelson, 67. Eomanow, Be, 325. Booker v. Perkins, 45. Boot V. McFerrin, 512. Eoscoe V. Lumber Co., 442. Eose V. Taunton, 187. Boseboom v. Mosher, 327. Eoseboom v. Boseboom, 420. Eosenthal v. Eenick, 450. Bosenthal v. Mayhugh, 288. Boss V. Boss, 34, 579. Boss V. Sadgbeer, 187. Boss V. Faust, 46. Boss V. Barclay, 320. Boss V. Worthington, 203. Boss V. Cobb, 538. Boss V. Barland, 556. Both V. Michalis, 294. Bothgerber v. Dupy, 453, 455. Eountree v. Talbot, 410. Bowe V. Becker, 198, 235. Eowley v. Beerin, 225. Eowley v. James, 456. Bowlings V. McEoberts, 247. Eozierz v. Van Dam, 518. E. E. Co. V. Eagsdale, 43. E. B. Co. V. Schurmeir, 49, 170. E. E. Co. V. Tevis, 116. E. B. Co. V. Morris, 556. E. E. Co. V. Washington County, 552. B. E. Co. V. E. E. Co., 129, 147, 322. E. E. Co. V. Beal, 217. B. E. Co. V. Burkett, 55, 547. E. E. Co. V. Litchfield, 147. E. E. Co. V. Joliet, 177. E. E. Co. V. Schuyler, 636, 637. B. E. Co. V. Maguire, 552 704 TABLE OF CASES. [the RErEBENCES B. B. Co. V. Kennedy, 193. Rubens v. Joel, 518. Backer v. Decker, 495. Buoker v. Dooley, 536. Buckle V. Barbour, 505. Eudolph V. Budolph, 419. Bufner v. MeConnell, 221. Bugg V. Hoover, 455. Buigo V. Eotau, 146. Busling V. Busling, 530. Euslin V. Shield, 207. Buss V. Wingate, 225. Russell V. Abstract Co., 9, 10. Bussell V. Eansom, 639. Russell V. Hart, 442. Bussell V. Jackson, 594. Bussell V. Sweezy, 638, 639. Bussell V. Place, 465. Bussell V. Brown, 191, 210. Bussell V. Whitehead, 133. Bussell V. Mandell, 71. Buslon V. Buston, 411. Butgers v. Hunter, 352. Ruth V. King, 187. Butherford v. Tracy, 172. Buttenberg v. Main, 341.. Bunyan v. Messercan, 396. Eyan v. Andrews, 32, 580. Ryan v. Carter, 139, 146. Ryan v. Carr, 303. Ryan v. Doyle, 308. Eyan v. Duncan, 318. Eyan v. KUpatrick, 613. Eyder v. Flanders, 321. Ryder v. Rush, 335. Byner v. Frank, 471. Salmon v. Vallejo, 199. Sammons v. Halloway, 211. Samuels v. Shelton, 303. Sanborn v. Robinson, 384. Sanborn v. Chamberlin, 505. Sanders v. Eldridge, 192. San Diego v. Allison, 536. Sands v. Davis, 154. Sands v. Lynham, 56. Sands v. Hughes, 605. Sanger v. Craigul, 66. Sansberry v. McElroy, 574. Sanxay v. Hunger, 636. Sapp V. Wightman, 547. ARE TO PAGES.] Sargent v. Howe, 298. Saunders v. Hart, 44. Saunders v. Hanes, 188, 231, 249. Saunders v. Schmaelzle, 191. Saunders v. Hackney, 201. Saunders v. Stewart, 375. Sawyer v. Cox, 78, 282. Sayler v. Plaine, 20. Scammon v. Chicago, 498. Scamnion v. Swartwout, 499. Scanlon v. Wright, 183. Scarborough v. Smith, 536. Scarlett v. Gorham, 458. Schade v. Gehner, 7, 8. Sehaeffer v. People, 555. Schaeffner's Appeal, 519. Scharfenburg v. Bishop, 222. Shaw V. WiUiams, 498. Sehettler v. Smith, 430. Schmedding v. May, 64. Schmeling v. Kriesel, 540. Schmucker v. Sibert, 255. Schnee v. Schnee, 157. Schneider v. Botsch, 612. Schneider v. Hutchinson, 612. Schofer v. Reilly, 395. Schofield V. Homested Co., 199. School District v. Taylor, 389. School District v. Werner, 466. Schott's Estate, 408, 411. Schroeder v. Gurney, 536. Schulenberg v. Harriman, 129. Schumucker v. Sibert, 255. Schumpert v. Dillard, 250. Schurmier v. R. R. Co., 46. Scofield V. Jennings, 213. Scofield V. Olcott, 433. Scoffin V. Grandstaff, 41. Seott V. Rand, 297. Scott V. Mann, 323. Scott V. Simpson, 346, 633. Scott V. Scott, 481. Scott V. McNeal, 512. Seott V. Moore, 519. Scott V. Elkins, 604. Scovill V. Grifath, 518. Scoville v. Hilliard, 536. Seckler v. Delfs, 396. Security Co. v. Longacre, 7. Seigneuret v. Fahey, 27. Seigwald v. Seigwald, 420. TABLE OP CASES. 705 [THE REFERENCES Sellers v. Corwin, 467, 469. Semple v. Bank, 28. Sesterliaii v. Sesterhan, 481. Semal v. Roberts, 579. Seyler v. Carson, 332. Seymour v. Sanders, 120. Seymour v. Bowles, 216. Sevier v. Gordon, 583. Shackelford v. Todhunter, 23. Shackelton v. Siebree, 245, 246. Shanks v. Klein, 273. Shannon v. HaU, 388, 389. Shattuck V. Hastings, 196. Sharp T. Spear, 55. Shaw V. Wiltshire, 376. Shaw V. Williams, 565. Shaw V. Chambers, 518. Shays v. Norton, 371, 875. Sheaf V. Wait, 555. Shear v. Stothart, 50. Shearer v. Shearer, 273. Shearer v. Weaver, 585. Sheldon v. Carter, 215. ■Sheldon v. Bice, 322. Shepard v. Howard, 269. Shepard v. Shepard, 389. SheJ)ardson v. Bowland, 271. Sheppard v. Thomas, 196. Sheridan v. Andrews, 535. Sherlock v. Winnetka, 552. Sherman v. Abbott, 541. Sherman v. Hogland, 182, 265. Sherman v. Kane, 609, 612, 634. Sherrid v. Southwick, 386. Sherwood v. Wilson, 402. Sherwood v. Sherwood, 408. Shields v. Miller, 303. Shields v. Boberts, 601. Shirk V. Gravel Road Co., 494. Shivley v. Parker, 160. Shivers v. Simmons, 268. Shoat V. Walker, 570. Short V. Conlee, 205, 226. Shortall v. Hinkley, 254. Shreve's Case, 415. Shrew v. Jones, 467, 469. Shriver v. Shriver, 216, 634. Shriver's Lessee v. Lynn, 505. Shuffleton v. Nelson, 607, 608. Shiunaker v. Johnson, 42. Shumway v. Holbrook, 440. Warvelle Abs. — 45 ARE TO PAGES.] Skinner v. Wood, 317. Skinner v. Pulton, 673, 676. Sibley v. Waffle, 514. Sibley v. Smith, 565. SicelofE V. Bedman, 411. Sickmon v. Wood, 220! Sidener v. White, 532. Sigourney v. Larned, 69. Sillers v. Lester, 387. Silliman v. Cummings, 268. Sillyman v. King, 113. Silver Camp. M. Co. v. Diekert, 526. Simmons v. Fuller, 380, 388. Simmons v. Wagner, 113. Simmons v. Thomas, 265. Sinnett v. Cralle, 492. Simpgow V. Pearson, 40, 43. Simpson v. Neil, 160. Simpson v. Blaisdell, 191. Sims V. Biekets, 261, 265. Sims V. Hammond, 395. Skillen v. Wallace, 654. Skinner v. Wood, 317. Skinner v. Fulton, 592, 594. Slater v. Breese, 220, 380. SlaytoB V. Singleton, 442. Slewers v. Commonwealth, 9. Sloan v. Lawrence Furnace Co., 194. Sloan V. Sloan, 636. Slocimi V. Slocum, 521. Slosson V. Lynch, 580. Small V. Slocumb, 211. Small V. Field, 225. Small V. Stagg, 452. Smiles v. Hastings, 363. Smiley v. Bailey, 419. Smith V. Holmes, 7. Smith V. Chenault, 22. Smith V. Colvin, 28, 495. Smith V. Porter, 184. Smith V. Frankfield, 41. Smith V. Proctor, 220, 221. Smith V. Block, 189. Smith V. Crawford, 219, 220. Smith V. Garden, 205, 226. Smith V. Van Gilder, 227. Smith V. Ball, 205. Smith V. Jewett, 253. Smith V. Hutchinson, 417. Smith V. Bice, 511. ^ Smith V. Sheely, 277, 2Y9. 706 TABLE OP CASES. [THE REFEHENCES Smith V. Walser, 308. Smith V. Caienault, 472. Smith V. BeU, 420. Smith V. Eowland, 452. Smith V. Bradstreet, 461. Smith V. Eichardson, 530. Smith V. Bangs, 532. Smith V. Sherwood, 534. Smith V. Crawford, 537. Smith V. Wood, 540. Smith V. Messer, 554. Smith V. Lewis, 561. Smith V. McConnell, 318, 574. Smith V. Smith, 584, 586. Smith V. Kobertson, 633. Smith V. Cranberry, 323. Smith v. Wileox, 498. Smithdeal v. Smith, 405. Smyth V. Taylor, 415. Snapp V. Pierce, 44. Snell T. Ins. Co., 339. Snydacker v. Brown, 526. Snyder v. Palmer, 42. Sffins V. Eacine, 552, Sohier v. Cofan, 254. Solomon's Lodge v. Montmn.llin, 280, 282. Sonfield v. Thompson, 205, 225. Soulard v. United States, 132. Soule V. Barlow, 603, 613. South Port Canal Co. v. Gordon, 492. Southern Cal. Coll. Asso. v. Busta- mete, 282. Southern Bank v. Humphreys, 480, 528. Southern Pac. E. E. v. Dull, 130. Sower v. Philadelphia, 360. Spackman v. Ott, 371. Spangler v. Sellers, 654. Spangler v. Brown, 654. Sparhawk v. Buell, 489. Sparrow v. Hovey, 602. Spaulding v. Gregg, 245. Spaulding Mfg. Co. v. Godbold, 274, 304. Speakman v. Forepaugh, 633. Speck V. Pullman Co., 505. Spenee v. Armour, 503. Spencer v. Dearth, 465. Sperry v. Pound, 252. Spight V. Waldron, 536. AEE TO PAGES.] Splahn ». Gillespie, 301, 510. Sprague v. White, 67. Sprig V. Moale, 586. Springer v. Brattle, 236. Springer v. Shavender, 512. Spurloek v. Allen, 567. St. Luke's Home v. Ass'n Ind. Fe- males, 428. Staak V. Sigelow, 182. Stadler v. Allen, 466. Stallings v. Stallings, 525. Stanelifts v. Norton, 383. Standen v. Standen, 422 . Standish v. Lawrence, 364. Stanley v. Eisse, 530. Stanton v. Embry, 490. Stark V. Mather, 113. Stark V. Brown, 613. Stark V. Starr, 109, 113, 141, 604, 609. Starkweather v. Martin, 202. Starweather v. Bible Soc, 409. Starry v. Johnson, 467. State V. Meagher, 317. State V. McGlynn, 441. State V. Eamsburg, 479. State V. Pepper, 40. State V. Bradish, 42, 89, 90. State V. Portland Electric Co., 49. State V. Muncie Pulp Co., 50. State V. McMillan, 63. State V. Grimes, 64. State V. Laverack, 54. State V. Jennings, 289. State V. Jersey City, 360. State V. Fosdick, 275. State V. LeffingweU, 276. State V. Eachao, 63. State V. Eoanoke Nav. Co., 502. State V. Wallace, 589. State V. Potter, 589, 590. State V. WUliams, 488, 590. State V. Orwlg, 534. State V. Goodrich, 590. State V. Armington, 590. State V. Ames, 596. St, Louis V. Eutz, 48. St. Louis, etc., Ey. Co. v. Eamsey, 46. St. Claire Co. v. Livingstone, 46, 48. Steel T. Cook, 426. Steel V. Kurtz, 33. TABLE OF CASES. 707 [the eefeeences steel V. St. Louis Smelting Co., 152. Steele v. Boone, 71. Steeple v. Downing, 556, 565. Steere v. Steere, 296. Stein V. Sullivan, 394. Stelz V. Shreck, 264, 546. Steltz y. Morgan, 566. Stephens v. Reynolds, 348, 354. Stephens v. Williams, 204. Stephens v. Evans, 430, Stephens v. Holnaes, 563. Stephenson v. Cone, 6. Stephenson v. "Wilson, 124. Stephenson v. Thompson, 303. St. Peters Church v. Bragaw, 609. St. Paul V. Ry. Co. 612. Sterling v. Park, 214. Sterling v. Jackson, 127. Sterns v. Swift, 269. Stevens v. West, 183. Stevens v. Bond, 497. Stevens v. Brooks, 605. Stevens v. Rainwater, 453. Stevens v. Harrow, 255. Stevens v. Hampton, 205. Stewart v. Smith, 385. Stewart v. Stewart, 410, 603. Stewart v. Pettigrew, 492. Stewart v. Garvin, 506. Stewart v. Barrow, 396. Stewart v. McSweeny, 254. Stewartson v. Stewartson, 544. Stickle 's Appeal, 411. Stiles V. Brown, 207. Stillwell V. Swarthaut, 492. Stinchfield v. Little, 289. Stinson v. Ross, 302. Stoddard v. Burton, 41. Stoddard v. Chambers, 150. Stoffel v. Schroeder, 236. Stone v. Sledge, 214. Storm V. Smith, 492. Stow V. Tarwood, 336. Stow V. Steele, 300. Strauss' Appeal, 344. Streeper v. Williams, 347. Streeter v. Streeter, 353. Strickland v. Draughan, 192. Strickland v. Kirk, 340. Stringer v. Young, 151, 155, 157. Strong V. Lehmer, 150. ARE TO PAGES.] Strong V. Whybark, 237. Strong V. Converse, 255. Strother v. Lucas, 39, 145. Strother v. Law, 394. Stuart V. Harrison, 453. Stuart V. Walker, 420. Stuart V. Allen, 318. Stubbs V. Sargon, 427. StuUer V. Link, 205. Stump V. Jordan, 414. Stuphen v. Ellis, 441. Sturdevant v. Mather, 561. Styles V. Probst, 267. Succession of Bogere, 582. Sullivan v. Sullivan, 536. Summer v. Mitchell, 204, 210, 222. Sumner v. Parker, 511. Sumner v. Williams, 198, 301. Summit v. Tount, 409. Surgi v. Colmer, 492. Sutherland v. Goodnow, 352. Sutton V. Schonwald, 502. Suydan v. Thayer, 416. Swan V. Benson, 452. Swan V. Yaple, 396. Swann v. Lindsey, 129, 146. Swartz V. Leist, 395. Sweat V. Corcoran, 151. Sweet V. Mitchell, 371. Swegle V. Wells, 530. Swink V. Thompson, 508. Sydnor v. Palmer, 42. Sykes v. Sykes, 269. Taft V. Kessell, 6S3. Taggart v. Risley, 41, 188. Taggart v. Murray, 411. Talbott V. R. R. Co., 257. Talbot V. Hudson, 54. Talbot V. Todd, 429, 479. Tankard v. Tankard, 66. Tapley v. Wright, 8. Tate V. Pensacola, etc., Co., 347. Tatum V. McClellan, 413. Taylor v. Wright, 565. Taylor v. Watkins, 45. Taylor v. MerriU, 540. Taylor v. E. E. Co., 565. Taylor v. Preston, 199. Taylor v. Boyd, 479. Taylor v. Reed, 478. 708 TABLE OF CASES. [(THE EErEMNCES Taylor v. Dodd, 431. Taylor v. King, 399. Taylor v. Sutton, 253. Taylor v. Brown, 113. Taylor v. Gilpin, 306. Taylor v. Branham, 472. Taylor v. Phillips, 596. Teabout v. Daniels, 604, 608. Teft V. Munson, 373, 381. Ten Eyck v. Witbeck, 237, 255. Terrell v. Andrew Co., 69, 70. Terrell v. Weymouth, 539. Terrett v. Taylor, 145. Terry v. Wiggins, 418, 421. Terry v. Sisson, 486. Terwilliger v. Brown, 308. Tesehemaeher v. Thomson, 156. Teutonia, etc., Co. v. TurreU, 206. Texas I^and Co. v. Williams, 204. Thaley, In re, 591. Thatcher v. St. Andrews Ch., 184, 207. Thatcher v. Candee, 298. Thatcher v. Howland, 269. Thatcher v. People, 556. Thayer v. Torry, 219, 345. Thayer v. Wellington, 433. Thaxter v. Williams, 455. TMelman v. Oarr, 453, 454, 640. Third Ave. E. E. Co. v. Mayor, 519. Thomas v. Guarantee Co., 10. Thomas v. Carson, 10. Thomas v. Hanson, 71. Thomas v. Sayles, 165. Thomas v. Clark, 326. Thomas v. Wyatt, 157. Thomas v. Bartow, 344. Thomas v. Babb, 607. Thomas v. Industrial University, 455. Thomas v. Desney, 484, 485. Thomas v. Stickle, 556. Thomas v. People, 512, 595. Thomas v. Chicago, 231. Thompson v. Gregory, 27. Thompson v. Prince, 135, 146. Thompson v. Thompson, 184. Thompson v. Lovrein, 214. Thompson v. Lambart, 277. Thompson v. Ludington, 425. Thompson v. Lee, 485. Thompson v. McCorkle, 480. AEE TO PAGES.] Thompson v. Craighead, 501. Thompson v. Ware, 565. Thompson v. Pioehe, 603, 607. Thompson v. Dearborn, 208, 255. Thompson v. Lyman, 385, 386. Thompson v. Schuyler, 534. Thompson v. Felton, 602. Thompson v. Burnhans, 639. Thompson v. Curtis, 364. Thompson v. Higginbotham, 368. Thorn v. Ingram, 320, 504. Thomburg v. Wiggins, 265. Thornton v. Grant, 47. Thornton v. Irwin, 398. Thorp V. Keokuk Coal Co., 200, 236. Thrasher v. Ingram, 411. Thrasher v. Bentley, 328. Throckmorten v. Price, 69. Thuleman v. Jones, 471. Thurman v. Cameron, 289. Tibbs V. Allen, 525. Tibbitts V. Tilton, 511. Tidd V. Eines, 112. Tilley v. Bridges, 502. Tillman v. Davis, 416, 580. Tilton V. Hunter, 65. Tilton V. E. E. Co., 637. Timanus v. Dugan, 413. Tisdale v. Ins. Co., 587. Tobey v. Taunton, 41. Todd V. E. E. Co., 50. Todd V. PhilhouT, 301. Tollenson v. Gunderson, 220. Tolman v. Emmerson, 566. Tomlin v. Matthews, 267. Tompkins v. Fonda, 24-. Tompkins v. Seely, 344. Tompkins v. Wiltberger, 526, 528. Tone V. Wilson, 199. Torrey v. Deavitt, 394, 395, 401. Torrey v. Cook, 315. Tower v. Divine, 374. Towles V. Fisher, 422. Townsend v. Corning, 289. Townsend v. Tallant, 505. Townsend v. Eadclife, 416, 580. Townsend v. Eeg. of N. Y., 63. Tracy v. Kilborn, 423. Tracey v. Eogers, 455. Traynor v. Palmer, 221. TrcadwoU v. Eeynolds, 208. TABLE OF CASES. 709 [the kefebences Treusoh v. Shyrock, 456. Trim v. Marsh, 396. Tritt V. Eoberts, 604. Troost V. Davis, 518. Troy V. E. R. Co., 55, 547. Truehart v. Price, 533. Trust Co. V. People, 57. Trust Co. V. Shaw, 395. Trustees v. Beale, 385. Trustees v. Hovey, 451. Trustees v. Snell, 497. Trustees v. Gray, 533. Tubbs y. Gatewood, 204, 228. Tucker v. Meld, 219. Tucker v. Whitehead, 441. Tucker v. Shade, 468. Tufts V. King, 67. Turner v. Smith, 555. Turner v. Yeoman, 565. Turner v. Kerr, 375. Turner v. Ivie, 250. Turner v. Hoyle, 309. Turner v. Scott, 247, 435. Turner v. Jenkins, 482, 528. Turner v. Watkins, 329, 871. Turner v. Hall, 613. Tumey v. Chamberlain, 602. Turney v. Yeoman, 565. Turpin v. Railroad Co., 363, 368. Tustin V. Faught, 201. Tuttle V. Churchman, 66, 67. Twichell v. Mears, 255, 256. Tyler v. Coulthard, 13. Tyler v. Reynolds, 30, 34, 576, 585. U. S. Casualty Co. v. Kacer, 588. Ufford V. Wilkins, 220. XJnderhiU v. R. R. Co., 253. Union Mill Co. v. Ferriss, 156. Union College v. Wheeler, 395. Union Trust Co. v. Weber, 553. United States v. Jones, 54. United States v. Brooks, 129. United States v. Land Grant Co., 157. United States v. Fox, 406, 407. United States v. New Orleans, 552. United States v. Fitzgerald, 112, 114. United States v. Hoar, 612. United States v. King, 109. United States v. Perchman, 129, 132. United States v. Stone, 150. ARE TO PAGES.] United States v. Schurz, 29, 153. Updike V. Tompkins, 406. Ury V. Houston, 318, 320. Utz, Estate of, 414. Van Aken v. Gleason, 388. Van Antwerp, In re, 551. Van Cleaf v. Burns, 546. Van Cott V. Prentice, 296. Van Courtlandt v. Kip, 434. Van Dusen V. People, 523. Van Honswyek v. Wiese, 435. Van Keuren v. R. R. Co., 67, 609. Van Keuren v. McLaughlin, 329. Van Meter v. McPadden, 344. Van Nostrand v. Moore, 410. Van Eanselser v. Smith, 17. Van Eansslffir v. R. R. Co., 26. Van Eensselser v. Hays, 350. Van Eansselaer v. Gullup, 345. Van Eansselfer v. Pennimar, 352. Van Riswick v. Goodhue, 384. Van Schaae v. Robbins, 232. Van Wickle v. Calvin, 316. Van Wickle v. Landry, 385. Vail V. Vail, 426. Vail V. Inglehart, 509. Valentine v. Eawson, 455, 456. Valentine v. Britton, 487. Valle v., Fleming, 504. ValJette v. Tedens, 9. Vallejo Land Ass'n v. Viera, 380, 382. Vandall v. Dock Co., 275. Vandever v. Freeman, 585. Vandiver v. Eoberts, 525. Vannatta v. Brewer, 351. Vancycle v. Eiehardson, 30, 405, 450. 576, 583. Vanzant v. Vanzant, 456. Vason V. Ball, 449. Vass V. Johnson, 493. Vassault v. Edwards, 342, 348. Vaughan v. Bunch, 434. Vaughan v. Ely, 449, 495, 506. Vaughan v. Sehmalsle, 468. Ventress v. Cobb, 311, 314, 398. Verdin v. Slooum, 20. Verges v. Giboney, 402. Vernon v. Morton, 326. Vernon v. Police Board, 311. 710 TABLE OP CASES. [THE REFERENCES Vernon v. Vernon, 409, 417. Videau v. Griffin, 290. Viele V. Judson, 394. Village of Lee v. Harriss, 176. Vipond V. Hurlbut, 199, 238. Virden v. Needles, 480. Voorhees v. Trisbie, 330. Voria v. Kenshaw, 196. Wacek v. Prink, 7. Wade V. Lindsey, 254. Wade V. Deray, 192, 228, 537. Wadhams v. Gay, 479. Waggoner v. McLoughlin, 560. Wainwright v. Tuckerman, 434. Wait V. Belding, 423. Wait V. Smith, 69, 283. Wakefield v. Brown, 215. Wakefield v. Van Tassell, 252. Wakefield v. Bonton, 530. Wakefield v. CSiowen, 7, 9, 89. Wallahan v. IngersoU, 597. Walbridge v. Day, 30, 575. Waldron v. Tuttle, 590. Wales V. Bogue, 471. Walke V. Moody, 493. Walker v. Matthews, 447. Walker v. Smallwood, 310. Walker v. King, 394. Walker v. Doane, 466. Walker v. Gary, 482. Walker v. Goodman, 654. Walker v. Dement, 395. Walker v. Craig, 316, 318. Walker v. Miller, 336. Walker v. Summers, 372. Walker v. Cockey, 383. Walker v. Dennison, 291, 292. Wall V. Wall, 435. Wallaee, Matter of, 330. Wallace v. Noland, 579. Wallace v. Berdell, 207. Wallace v. Harmstad, 17, 57, 575. Wallace v. Wilson, 113, 387. Wallace 7. Monroe, 466. Wallace v. Harris, 187. Wallach v. Van Eiswick, 57. Wallbridge v. Day, 575. Waller v. Arnold, 314. Wallington v. Taylor, 431. Wallingford v. Allen, 261. ARE TO PAGES.] Walsh V. Hill, 606. Walsh V. Kirkpatrick, 485. Walter v. Arnold, 393. Walter's Appeal, 429, 431. Walthall V. Goree, 264. Walton V. Hargroves, 452. Walton V. Cody, 369, 375. Wambough v. Sehenk, 586. Wangelin v. Goe, 532. Ward V. Mulford, 160. Ward V. Lumber Co., 278, 361. Ward V. Amory, 420. Ward V. Gates, 442. Warder v. Cornell, 347. Ware v. Johnson, 304. Ware v. Wisner, 441. Warehouse Go. v. Terrill, 505. Warfield v. Brand, 316. Warneke v. Lembea, 316. Warner v. Bull, 254. Warner v. Bennett, 258. Warner v. Sharp, 300. Warner v. Crosby, 386. Warner v. Bates, 429. Warner v. Everett, 461. Warnock v. Harlow, 460. Warren v. Eichmond, 347, 638. Warren v. Lynch, 201. Warren v. Blake, 26. Warren v. Levitt, 152. Warren v. Chambers, 48. Washburn v. Cutler, 571, 605. Washburn v. Burnham, 69. Washburn v. Burns, 263. Washburn v. Fletcher, 341. Washington v. Hasp, 565. Waterloo Bank v. Elmore, 374. Waterman v. Smith, 156. Waterman Hall v. Waterman, 604, 605. Waters v. Bush, 113, 124, 141. Waters v. Jones, 398. Watkins v. Hall, 223. Watkins v. Speeht, 307. Watkins v. Eogers, 345. Watson V. Water Co., 275. Watson v. Eiskmire, 265. Watson V. Atwood, 565. Watson V. Tindal, 586. Watson V. Muirhead, 654. Watson V. E. E. Co., 547. TABLE OF CASES. 711 [THE REFERENCES Watson V. Hoy, 502, 503. Watson V. Blackwood, 408, 411. Watson V. Sherman, 290. Watrons v. Morrison, 78. Watrous v. Allen, 197. Watt V. McGalliard, 497. Weaver v. Peasley, 495. Webb V. Peale, 187. Webb V. Mott, 526. Webb V. Richardson, 604. Webber v. Townley, 62. Weber v. Anderson, 608. Webster v. Conley, 301. Webster v. Pittsburgh, etc., Ry. Co., 610. Weckler v. Bank, 275. Wedge V. Moore, 256. Weeks v. Milwaukee, 552. Weeks v. Dowing, 71, 103. Weiehselbaum v. Chirlett, 608. Weidersum v. Naumann, 521. Weir V. Lumber Co., 639. ' Weis V. Aaron, 476. Welch V. B. R. Co., 36. Welborn v. Anderson, 606. Welch V. Button, 44, 346. Welch V. Priest, 396. Welch V. Phillips, 372. ' Welch V. Sacket, 207. Wells V. Bailey, 47. Wells V. Pennington Co., 131. Wells V. Atkinson, 204, 227. Wells V. Jackson Mfg. Co., 606. Wells V. Wells, 265. Wells V. Stumph, 525. Welsh v. Joy, 302. Welsh V. Huse, 407. Welsh V. PhUlips, 372, 396. Welsch V. Savings Bk., 411, 420-421. Welton V. Atkinson, 205. Wentworth v. Wentworth, 586. Westlake v. Westlake, 267. West V. Wright, 247. West V. Walker, 262. West Co. V. Lea, 325. West Point Iron Co. v. Eeymert, 195. Wetmore v. Parker, 428, 434. Wetmore v. Laird, 204. Wetmore v. Wetmore, 545. Wetter v. Walker, 413. Wiekle v. Calvin, 316. ABE TO PAGES.] Wider v. East St. Louis, 551. Wier V. Simmons, 196. Winslow V. Goodwin, 19. Wisenor v. Lindsay, 321. Weisner v. Zaun, 41. Wiggins Perry Co. v. R. R. Co., 249, 253. Wilbur V. Tobey, 597. Wilder v. Brooks, 265. Wilcox v. Jackson, 29, 110, 125, 157. Wilcox V. Bates, 375. Wilcoxon V. Osbom, 224. Wiley V. Sirdorus, 195. Wiley V. Williamson, 395. Wilkes V. Back, 289. Wilks V. Burns, 619. Wilkins v. Tourtellott, 334, 337. Wilkinson v. Elliott, 547. Willamette Co. v. Gordon, 440. Willamette Co. v. Hendrix, 475. Willard v. Cramer, 205, 226. Williams v. Baker, 206. Williams v. Wisnor, 329. Williams v. Merritt, 331. Williams v. Teachey, 396. Williams v. Jackson, 399. Williams v. Williams, 428, 591. Williams v. Chapman, 454. Williams v. Johnson, 476, 529. Williams v. Amory, 494, 575. Williams v. Valkenburg, 527. Williams v. Downes, 525. Williams v. Townsend, 561. Williams v. Kirkland, 565. Williams v. Ewing, 582. Williams v. Augusta, 357. Williams v. Wallace, 601. Williams v. Rhodes, 323. Williams Estate, 586. Williams, In re, 441. Williamson v. Berry, 500, 504. Williamson v. Jones, 502. Williamson v. Russell, 560. Willis v. Nicholson, 504. Willot v. Sanford, 146. Wills V. Chandler, 505. Wilson V. Spring, 298. Wilson V. Owen, 524. Wilson V. James, 608. Wilson V. Reuter, 384. Wilson V. Wilson, 30, 247, 253, 544. 712 TABLE OF CASES. [THE REFERENCES Wilson V. Thraup, 42. Wilson V. White, 216. Wilson V. Carrico, 245, 247. Wilson T. McKenna, 211. Wilson V. Lyon, 452. Wilson V. Himter, 64. Wilson V. King, 42. Wilson V. Sexton, 50. Wilson V. Buss, 655. Wilson's Exrs. v. Van Leer, 435. Winans v. Cheney, 192. Wing V. Dodge, 493, 511, 512. Wing V. Hall, 571. Winfe V. Cooper, 369, 370, 371. Wing V. Eailey, 253. Wingate v. Pool, 317. Winkler v. Miller, 236. Winslow V. Winslow, 182, 216. Winslow V. Goodwin, 19. Winter v. Stock, 182, 274. Winter v. Crommelin, 151, 157. Winter v. Jones, 152. Winters v. Mears, 529. Withers v. Pugh, 215. Winthrop v. Fairbanks, 194. Wis. Elver Land Co. v. Selover, 237. Wisenor v. Lindsay, 321. Witham v. Brooner, 294. Wittenbrock v. Wheaton, 116, 117. Wheaton v. Andress, 417. Wheaton v. Sexton, 496. Wheeler v. Smith, 427. Wheeler v. Hartshorn, 408. Wheeler v. Spinola, 49. Wheeler v. Wheeler, 544. Wheeler v. Olutterbuok, 573, 580. Wheeler v. Schad, 199. Wheeler v. Willard, 394. Whelan v. SuUivan, 341. Whetstone v. Ottawa "University, 276. Whitaker v. Miller, 180, 184, 190, 207, 216. Whiteomb v. Eodman, 410. White v. Whitney, 198, 303. White V. Hopkins, 246. White V. Clover, 316. White V. Clawson, 321, 611. White V. Eittenmeyer, 372, 449. White V. Patton, 373. White V. Foster, 256. White V. Luning, 192, 299. ARE TO PAGES.] White V. Davis, 303. White V. Moses, 300. White V. Pisk, 428. White V. Hampton, 73. White V. Carpenter, 309. White V. Hermann, 341. White V. MeGan-y, 388. White V. White, 67, 609. White V. Fuller, 639. Whitehall v. Gottwal, 238. Whiteman v. Whiteman, 410. Whiting V. Nicholl, 586. Whiting V. Butler, 303. Whitmore v. Larned, 554. Whitman v. Fisher, 317. Whitman v. Henneberry, 208, 209, 538. Whitmore v. Larned, 630. Whitney v. French, 397. Whitney v. Eoberts, 518. Whitney v. Ey. Co., 197. Whitney v. Whitney, 466. Whitridge v. Taylor, 330. Whitsell V. Mills, 269. Wood V. Goodridge, 289. Wood V. Sampson, 405, 431. Wood V. Bank, 367, 605. Wood V. Beach, 187. Wood V. Matthews, 440. Wood V. Calvin, 493. Wood V. Morehouse, 492. Wood V. Myrick, 511. Wood V. Young, 469. Wood V. Hurd, 50. Wood V. Griffin, 430. Woodley v. Gilliam, 496. Woods V. Monroe, 511, 515. Woods V. Hildebrand, 370, 449. Woodbury v. Dorman, 387. Woodfin V. Anderson, 581. Woodman v. Clapp, 566. Woodward v. Eoberts, 211. Woodward v. McEeynolds, 116. Woodward v. Harris, 540. Woodworth v. Payne, 253. Woodworth v. Eaymond, 26. Woolsicroft V. Norton, 199. Wooters v. Joseph, 495. Word V. Douthett, 537. Work V. Welland, 373. Worth V. Branson, 113, 114, 141. Worrall v. Munn, 289. TABLE OF CASES. 713 [the kefekences Wright V. Sperry, 199. Wright V. Tinsley, 348. Wright V. Dufield, 268. Wright V. HoweU, 255. ' Wright V. Marsh, 537. Wright V. Walker, 561. Wright V. Young, 449. Wright V. Day, 170. Wright V. Dunn, 411. Wylly V. Gazan, 218. Wyman v. Farrer, 195. Yackle v. Wightman, 480. Yahoola Mining Co. v. Irby, 287. Yale V. Flanders, 202. Yaple V. Titus, 476. Yarbrough v. Pugh, 527. ABE TO PAGES.] Yard v. Murry, 433. Yarnall's Appeal, 415. Yates V. Shaw, 165. York V. Crawford, 525. York V. York, 580. Yosemite VaUey Case, 116. Young V. Duvall, 201. Young V. Gailbeau, 207. Young V. Clippinger, 238. Young V. Young, 262, 433. Yount V. Howell, 156. Youse V. Fonnan, 434. Zeigler v. Hughes, 384. Zahnn v. HaUer, 201. Zirkle v. McCue, 510. INDEX [THE EErERENCES ABE TO SECTIONS.] ABANDONMENT, considered as a method of acquiring title, 52. of homestead, defeats right of exemption, 22. ABBREVIATIONS, may be used to advantage, when, 101. may destroy abstract as evidence, 66. ABORIGINAL TITLE, of what consisting, 51. ABSENCE, long and unexplained, when presumptive evidence of death, 562. ABSTRACTS, definition of, 2. origin and early use of, 3. essential matters to be shown in, 4. English method of compilation of, 5. American method of compilation of, 6. distinguished from examinations, 7. what constitutes to be merchantable, 7. liability for erroneous statements in, 9. client may relie upon statements of, when, 9. duty of furnishing devolves on whom, 11. become property of purchaser, when, 11. compiled from oflS.eial sources of information, 58, 76, 89, 90. from private indices, 67, 74. formal parts of, 92. should be written with a pen, 92. caption of, how expressed, 93. arrangement of, 94. of instruments and proceedings shown, 95, 97, 98, 100. examiner's notes in, how shown, 98, 100. letter press copies of, 102. concluding certificate, 103. of inceptive measures under TJ. S. land laws, 128. of entries on government tract books, 129. of receiver's duplicate receipt, 134, 135. of legislative grants, 137. of patents from United States, 149. of subdivision by owner, 166. of vacation of subdivision by owner, 169. of deeds, parts to be shown, 172. of corporate conveyances, 250. 715 716 INDEX. [THE REFERENCES AB.E TO SECTIONS.] ABSTRACTS— Continued. of power of attorney, 263. of declaration of trusts, 267. of sheriff's deed, 274. of master's deed, 280. of trustee's deed, 281. of administrator Js deed, 286, 288. of bankruptcy proceedings, 293, 301. of land contract, 316. of leases, 323. of vacation of plat, 330. of oflicial certificates, 334, 445. of party wall agreement, 337. of afadavit, 329. of mortgage, 342, 351. of wills, 413, 417. of probate proceedings, 417. of court proceedings, 501, 521. of probate sales, 494. of tax sale certificates, §34. of tax deed, 535. of tax title, liow compiled, 540. of proof of death, 564. of descent in probate, 568. of adverse titles, 573. methods of perusal of, 591. printed copies of, opinions concerning, 612. analysis of, 600. method of compiling in New England, Ap. ABSTRACT BOOKS, taxation of, 12. exemption of from execution, 13. how compiled and used, 78, 87. ACCRETION AND RELICTION, what constitutes, 46. title acquired by, nature of, 46, 48. rule for measurement of lands acquired by, 46. distinguished from avulsion, 47. ACKNOWLEDGMENT, office and effect of, 196. how shown in abstract, 196. if defective, effect of, 209. what constitutes defects of, 209, 210. defects of, how noted in abstract, 210. of wife's deed, formalities of, 245. of corporate conveyances, 256. by attorney in fact, how shown, 262. of sheriff's deed essential to validity, 275. ACTIONS, respecting title at law and in equity, 498. for divorce, should be shown when, 518. INDEX. 717 [THE EBrEEENCES ARE TO SECTIONS.] ADMINISTRATOB, powers of, distinguished from executors, 286, 287, 288. deeds by, how made, 288. how shown in abstract, 288. with will annexed, powers of, 289. ADMINISTBATION OF ESTATES, how shown in abstract, 417, 568. settlement without, effect of, 570. ADOPTION, defined, 33. -effect of in descent of estates, 33, 531. proof of in case of succession, 33, 561. ADVEESE CONVEYANCES, how displayed in abstract, 573. by intrusion, how shown, 573. ADVEESE POSSESSION, character and effect 'of, 572, 574, 576, 589. from user only, 578. under color of title, 576. naked occupancy without claim is not, 579. tacking of successive holdings by, 580. constitutes notice, 581. as between co-tenants, 578. cannot be established against remainder-men, 583. or reversioners, 584. or persons under disability, 586. or the iState, 588. proofs to support title by, 590. ADVEESE SEIZIN, ^ wiU not prevent valid conveyance of land, 233; ADVEESE TITLE, general characteristics of, 572, 576. how shown in abstract, 573. who may acquire, 582. proofs to support, 590. AFFIDAVITS, of matters in pais, are required when, 339. how shown in abstract, 329, 339. general requisites and sufficiency of, 339, 340. of domestic condition, 339. of pedigree, form of, 599. of nonresidence, when required, 505. of publication, 478. AFFINITY, what is, and how governeii, 32. AFTEE-ACQUIEED ESTATES, when bound by lien of judgments, 448, 452. effect of mortgages upon, 359. AGEEEMENTS, for conveyance, general doctrines of, 310. for conveyance by deed, 312, 313. 718 INDEX. [THE REFERENCES ARE TO SECTIONS.] AGREEMENTS — ContimMd. for conveyance by will, 321. for deed, performance of, 318. for party wall, effect of, 337. AGEICULTUEAl, LANDS, what leases may be made of, 326. ALIENS, may take by descent, 550. may not make homestead entries, 127. ALIENATION, of land, what laws govern, 28. of the homestead only effectual when, 22. ALIMONY, requires notice when a lien on land, 518. ALLEGIANCE, does not relate to title or imply feudal obligation, 18. AMBIGUITY, effect of and how treated, 200. in deeds, 186, 200, 205, 208. in wills, 381, 382, 387. AMERICAN, method of compiling abstract, 6. doctrines with respect to title, 18. Indian, title of, how extinguished, 51. ANALYSIS OE TITLE, utility of in examination, 600. how constructed, 601. how made in England, Ap. ANCESTOR, who is to be considered, 542. covenants of, bind heir when, 545. debts of, affect heir how, 545. death of must be proved, 562. title of, descends to heir by operation of law, 543. ANCESTRAL ESTATES, by what rule distributed, 552. ANCIENT DEEDS, what are, 198. require no proof of execution, 198. ANTE-NUPTIAL AGREEMENTS, general provisions of, 240a. will be upheld, when, 240a. APPEARANCE, effect of in legal proceedings, 506. ARRANGEMENT, of abstract, suggestions for, 94. ASSESSMENTS, special, how shown in abstract, 541. ASSESSORS' PLATS, for what purpose made and how shown, 528. INDEX. 719 [THE REFERENCES ARE TO SECTIONS.] ASSIGNEE, of military warrants and land scrip, 120. of land contract, rights of, 317. of lease, acquires what interest, 327. of mortgage, rights of, 366. in bankruptcy, deed of, 307. ASSIGNMENT, as a mode of conveyance, 228. of military warrant, when permitted, 120. for benefit of creditors, 293. voluntary, how made, 294. construction and effect of, 295, 298. by register in bankruptcy, 307. of agreements for conveyance, 317. of lease, how made, 327. of mortgage, effect of, 365, 366, 367. of mechanic's lien, effect of, 437. of certificate of sales under execution, 489. ATTACHMENT, general doctrine of, 444. formal requisites of, 445. how shown in abstract, 445. ATTESTATION, by subscribing witnesses to deeds, 195. ATTOENEY, power of, how shown, 263. opinion of title by, 613, 614. liability of for erroneous opinion, 619. ATTOENEY, IN EAOT, conveyance by, how made, 263. how shown in abstract, 263. purport and extent of powers of, 262, 263. revocation of authority of, 264. substitution of, 264. AVULSION, what is, and by what laws governed, 47. BANKRUPTCY, jurisdiction and practice in, 301, 302. nature and effect of, 304. proceedings in, how shown in abstract, 306. register's assignment in, 307. deed of assignee in, 308. effect of discharge in, 309. BIRTH, of heir, affects tenant by curtesy, 23. proof of, necessary to establish claim of heir, 565. BONDS, for conveyance, how shown, 320. of officials are liens on land, when, 429. 720 INDEX. [•THE EErBEENCBS AKE TO SECTIONS.] BOOKS, abstract, how laid out and kept, 78. exemption of, from forced sale, 13. BOUND AEIES, of lands adjoining navigable waters, 48, 165. by lines of the public surveys, 163, 164, 186. CANONS 0¥ DESCENT, of what consisting, 30, 547. CAPTION, of abstracts and examinations, 93. of opinions of title, 614, 616. CAVEAT EMPTOR, doctrine of applies to purchases at' execution sale, 472. and from administrator, 288. CEETIPICATES, ofiioial, by custodian of records, 72, 334. appended to abstract by examiner, 103. how shown in abstract, 334. of proof of will, 413. of levy of attachment, 445. ' of publisher, notice of sale,, 478. of sale by officer, how shown, 488. of sale, assignment of, 489. of publication of notice of sale, 478. of sale for non-payment of taxes, 534. of title, what are and utility of, 615. deaths, births and marriages, 563. CHAIN OP TITLE, preliminary sketch of, 91. analytical, on examination of abstract, 601. as arranged in abstract, 94. CHANCEET COURTS, jurisdiction of, 496. proceedings of, how shown, 498. notice afforded by records of, 500. CHANCERY PROCEEDINGS, method of indexing, 85. authority and jurisdiction of courts in, 496. requiring notice in abstract, 498. jurisdiction the great essential in, 499. notice afforded by record of, 500. how instituted and conducted, 501, 506. how shown in abstract, 504, 509. CHARTERS, of corporations, effect of on titles, 257. CHILDREN, is word of purchase not limitation, 385, 389. construed as "synonymous with issue, 387. limitation of estate to, effect of, 386. does not include grandchildren, 387. INDEX. 721 [the references are to sections.] CHURCH RECORDS, may be resorted to for CTidencc, 73. CLASS, devise to, effect of, 423. CLASSIFICATION OF TITLE, Blaekstone's distinctions, 16. by courts of equity, 16. CLOUDS UPON TITLE, what are, and effect of, 607. COLOR OF TITLE, what constitutes, 26, 575. entry under and adverse possession, 576. COMPILATION, of abstract, English method, 5. American method, 6. from what sources of information, 58, 67, 76, 90. from official indices, what should be examined, 67. making the chain, 91. from private indices, 74. insertion of notes in, 98. abbreviation, when permissible, 101. of initial statements, 93. of abstract books, 78. CONDEMNATION, ' proceedings for, how shown, 520. CONDITIONS, annexed to grants, effect of, 190. will be invalid when, 190, 232. how shown in abstract, 232. in mortgages, effect of, 355. devise upon, effect of, 394, 395. CONFIRMATION, nature and characteristics of, 50. as basis of title in foreign grants, 50. how shown in abstract, 132. as a mode of substantive conveyance, 226. of judicial sales, effect of, 486, 487. CONFLICT OP LAWS, in alienation and descent, 28. in matters of assignment and insolvency, 299. CONFISCATION, nature and characteristics 6f, 56. CONGRESSIONAL GRANTS, nature and effect of, 138. construction of, 139. how shown in abstract, 140. CONSANGUINITY, defined, 31. computation of degrees of, 31. table of degrees of, according to the civil law, 31. Warvelle Abs. — 46 722 INDEX. [THE REFERENCES ARE TO SECTIONS.] CONSANGUINITY — Contirmed. distin^islied from af&nity, 32. as affected by statutes of adoption, 33. CONSIDERATION, as expressed in deeds, effect of, 179, 180. CONSTEUOTION, of patents from IT. S., 155. of deeds and other instruments, 186, 214. of wills, 521. CONSTRUCTIVE NOTICE, general doctrines of, 62. afforded by public records, 64, 65. by records, rigidly construed, 65. distinguished from actual notice, 63. not impaired by destruction of records, 66. judgments and decrees rendered upon, 462. CONiSTRUOTIVB POSSESSION, distinguished from actual, 577. of lands held adversely, 577. CONTINGENT REVERSION, under wills, how created, 397. CONTINGENT REMAINDERS, under wills, how construed, 389, 394, 396. CONTRACTS FOR CONVEYANCE, general remarks concerning, 310. relation of parties under, 311. effect and operation of, 312. nature and formal requisites of, 313. how affected by recording acts, 314. construction of, 315. how shown in abstract, 316. performance of sufficiency of deed and title, 318. effect of assignment of, 317. effect on title when forfeited, 319. in form of bond, effect of, 320. by wai, validity of, 321. CONTINUATIONS, of abstracts, caption of, 93. CONVEYANCES, by heirs, what facts jurisdictional, 36. should be rejected, when, 36. by pre-emptioners before entry, 112, 113. of homestead claim before maturity, 117. by way of legislative grant, effect of, 124, 125, 137, 149. from the U. S. government, 125. from the state, 138, 157. between individuals, 212. derived from the common law, 224. of future interests and estates, 229. to become operative only at death of grantor, 229. of special interests and qualified estates, 230. INDEX. 723 [THE REFERENCES ARE TO SECTIONS.] GONVEYANOES — Continued. restrictive or conditional in character, 232. gf lands held in adverse possession of another, 233. in fraud of creditors, 234. subject to incumbrance, 235. intended for marriage settlement, 240. to husband and wife, effect, 241. between husband and wife, 242. by married women, 243, 244. of lands held in common, 247. to effect partition, 248. of partnership lands, 249. by or to corporations, 250, 255. post obit, effect of, 261. by delegated authority, 262. in trust, for what purposes permitted, 265. made in official character, 270. by trustees of legal estate, 281, 283, 284. by mortgagees, 285. by executors and administrators, 286. by guardians and conservators, 290. by way of voluntary assignment, 293. through bankruptcy proceedings, 306, 808. agreements for, nature and requisites, 313. by will, agreements for, 321. intended as security only, effect of, 348. by way of devise, 376. how affected by liens and incumbrances, 418. by lis pendens and attachment, 439. by judgments and decrees, 449. resulting from judicial and execution sales, 274, 280. resulting from tax sales, 535, 539. of adverse interests and estates, 573, 580. COPAECENEES, who are, and by what rules governed, 554. COPIES, of abstract should be preserved by examiner, 102. printed, of abstracts, value of, 612. COEPORATIONS, right of, to acquire, hold and transmit, 250, 252. as affected by statutes of mortmain, 251. conveyances by and to, 254, 255. execution of deeds by, 256, 258. municipal, may hold laud when, 253. COVENANTS, classified and distinguished, 191. operation and effect of, 191. defects of form or substance in, 208. operate by estoppel, when, 42. not implied in official deeds, 273. in leases, effect of, 324. 724 INDEX. [THE REFEKENCES ABE TO SECTIONS.] COVENAISTTS — Continued. implied in leases, what are, 325. in mortgages, effect of, 353, 354, 355. effect of, in party wall agreement, 337. of ancestor, affect heir how, 557. CREDITOES, assignment for benefit of, 293. liens of, on decedent's real estate, 557, 558. CURTESY, tenancy by in the United States, 23. DATES, of deed not essential, 177. of registration should be shown, 178. disparities of, how shown, 203. DEATH, proof of essential to rights of heir, 85. how shown in case of succession, 562. how shown in abstract, 562, 563, 568. as shown by proceedings in probate, 569. affects sale on execution how, 479. DEBTS, are a charge on land, when, 557. of ancestor, liability of heir for payment of, 557. of testator, liability of devisee for, 405. devises for payment of, when regarded as money, 406. DECLARATION OP TRUST, how made and shown, 267. DEGREES, defined and distinguished, 446, 460. operation and effect of, 461. rendered on constructive notice, 462. lien of, 463. formal requisites of, 464. how shown in abstract, 465. errors and defects in, how treated, 466. rendered in foreign jurisdiction, 470. in probate, effect of, 469. DEDICATION, consists of what, 49. at common law and under statute, 49. by plat, effect of, 170. by deed, form and effect of, 236. DEED, title by, what is, 38. DEEDS, operative parts of to be considered, 172. names of parties in, 173, 174, 175. necessity and effect of consideration for, 179, 180. special words of limitation, purchase, etc., 181, 182. description of property in, 183, 186. INDEX. 725 [the references are to sections.] DEEDS — Continued. ■special recitals of, 187. exceptions, conditions, etc., 189, 190, 191. facts of execution considered, 192. delivery of, necessity for, 197. operation and effect of ancient deeds, 198. stamps, necessity for and how shown, 199. erroneous recitals in, how shown, 200, 203. may be effective though grantor is not specifically named, 200. misdescription of property, 205, 207. defective execution of, 209. classified and distinguished, 213. how shown in abstract, 216, 217. statutory forms of, 223. common law forms of, 224. of qualified estates, 230, 231. by way of conveyance in future, 229. to take effect at death of grantor, 229. restrictive and conditional clauses in, 190. dedication by, 236. particular classes of, by individuals, 240. to effect a partition, 248. of corporations, 250. i by lieirs at law, effect of, 36, 260. by attorney in fact, 262. by sheriff, on execution, 274. by master, commissioners, or referees, 280. by trustees, 281. by mortgagees, 285. by executors and administrators, 286. by guardians and conservators, 290. of voluntary assignment, 294. by assignee in bankruptcy, 307, 308. agreement for, 313. ' of vacation of plat, 169. absolute, will be treated as mortgage, 348. of trust in nature of mortgage, 363. issued on tax sales, 535, 539. shown adversely, 573. DEED POLL, defined and distinguished, 213. DEGREES, of consanguinity, how computed, 31. DELIVERY, of TJ. S. patents, not essential, 151. of deeds, is essential to transfer title, 197. presumption of from recording, 197. DESCENT, title by, defined, 29, 542. by what laws governed, 28, 29, 30, 543, 547. 726 INDEX. [THE RETERENCES ARE TO SECTIONS.] DESCENT — Continued. rules in the United States, 30, 547. operation and incidents of title by, 543. who may take by, 546, 550. what property passes by, 555. how affected by ancestral covenants, 556. how affected by creditors' liens, 558. may be defeated by equitable conversion, 559. validity of, how established, 560. how shown, in abstract, 564, 568. DESCRIPTION OF PEOPEBTY, sufficiency and construction of, 183. uncertainty and error in, how shown, 205. DESERT LAND ACT, entries of public land under, 118. DESTBTJCTION OP RECORD. does not impair constructive notice of same, 66; DEVISE, title by, what is, 39, 376, 377. operation and effect of, 378. rules of construction of, 381. affected how, by words of purchase and limitation, 385. rule in Shelly 's case applied to, 386. of real estate, what words are necessary, 388. to a class, effect of, 390. with power of disposition, construction of, 392. of indeterminate character, how construed, 393. on condition precedent, effect of, 394. with remainder over, 396. to married woman, 398. to executors in trust, 399. to beneficiary by description only, 400. with precatory words annexed, effect of, 401. with suspension of power of alienation, 402. will lapse when, 403. for the payment of debts, 404. subject to payment of debts, effect of, 405. will work equitable conversion, when, 406. of the residuum, effect of, 407. of the income of realty, effect of, 391. DEVISEE, takes by descent, when, 383. nature of the title acquired by, 376. DISABILITY, persons under, exceptions in favor of, 586. DISCHARGE, in bankruptcy, how shown, 309. of mortgage, 368, 371. of lien of judgments, 459. DISPOSAL OF PXTBLIO LANDS, effected by what system, 106. INDEX. 727 [THE EErEEENCES AEE TO SECTIONS.] DISPOSAL 0¥ PUBLIC hA'N'DS — Continued. by public sale, 107. by private entry, 108. DIVISIONS, of the public domain, 161. DIVORCE, lien of decree for, 463. effect of on titles, 518. proceedings in, how shown in abstract, 518. DOCUMENT NUMBER, index of, how kept, 79. DONATION ENTRIES, of public lands, how effected, 115. DOWER, definition of, 23, 423. nature of estate conferred by, 23. how conveyed or barred, 23, 246. right of, not affected by execution sale, when, 481. proceedings for, how shown in abstract, 517. DUPLICATES, how shown in abstract, 238. EASEMENTS AND SERVITUDES, defined, distinguished, 25, 336. how acquired or lost, 25. distinguished from license, 25. when inquiries should be made with regard to, 610. EJECTMENT, effect of judgment in, 511. EMINENT DOMAIN, nature of the right, 53. character of title acquired by, 53, 54. actions in exercise of, 519. matters to be noticed in abstract of, 520. ENGLISH METHODS, of compiling abstract, 5. ENTAIL, to what extent permitted, 182, 386. ENTRY, of public lands, 108. nature of title conferred by, 109. what land subject to, 110. how shown in abstract, 129. EQUITY, of redemption, what is, 342, 343. win treat deed as mortgage, when, 348. EQUITABLE CONVERSION, what is, and how effected, 406. may defeat succession of heir when, 599. 728 , INDKX. [the EEPEKBNCES ABE TO SECTIONS.] EQUITABLE MORTGAGES, general doctrines respecting, 348. deeds in form may be decreed, 348. ERROE, liability of examiner for, 9. in deeds and other instruments, 200. of description, in deeds, 205. and mortgages, 352. in opinion, liability of counsel for, 619. ESCHEAT, origin and former nature of, 55. nature of at present time, 55, 571. ESTATE, distinguished from title, 14. as affected by uses and trusts, 20. by exercise of powers, 21. of homestead, of what consisting, 22. by entirety, how created, 241. in common, how held, 247. ESTATES, under allodial titles, 19. under existing laws, 19. of dower and curtesy, 23. for years, nature of, 24. of decedents, how deduced from probate proceedings, 569. settlement of without probate, 570. ESSENTIALS, of abstract of title, 4. ESTOPPEL, defined and distinguished, 41. elements of, 41. classification of, technical, 42. equitable, 43. does not affect sovereign power, 43. applies to mortgages, 346. of a judgment, extends to. what, 42. by deed is raised in what manner, 43. EXAMINER, necessary qualifications of, 8. is liable for erroneous certificate, when, 9. conditions necessary to fix liability of, 9. duty of, in expositions of title, 9. EXAMINER'S NOTES, should be inserted when, 98, 218. EXAMINATION, of title, distinguished from abstract, 7. liability for error in, 9. of official indices and records, 67. of abstract by counsel, 593, 594. EXCEPTIONS, distinguished from reservations, 189. how created and shown, 189. INDEX. 729 [THE EEPEEENCBS ABE TO SECTIONS.] EXECUTION, of judgments, 475, 476. sales under, effect of, 471. must conform to judgment, 475. , levy of, liow made and returned, 476. how shown in abstract, 454. of deeds, formalities required, 192, 209. of deed of corporation, 256. of deed of attorney in fact, 263. sale of abstract books under, 13. EXECUTION SALES, defined and distinguished, 471. validity and effect of, 472. purchaser at, takps subject to all equities, 472. title under, extends to what, 473. title vests under, when, 474. dependent on validity of writ, 475. as effected by levy, 476. notice of, how ^given, 477. affected how by death, 479. exemptions from, 480. followed by deed, how shown, 472. EXECUTION OP DEEDS, consists of what, 192, 210. various parts of, how shown, 193, 210. EXECUTORS AND ADJiONISTBATORS, nature of power held by, 286. deeds and conveyances by, 286, 287. with will annexed, powers of, 289. devises to, in trust, 399. EXEMPTION, from the lien of judgments, 458. inquiry concerning, should be made when, 480. of abstract books from forced sale, 13. EXPRESS TRUSTS, for what purposes created, 20. EXTENT OP SEARCH, in compiling abstract of title, 90. PEE SIMPLE, estate, (Signifies what, 19. PIELD NOTES, of government surveys, importance of, 77. PLAWS, in title, of what consisting and' how remedied, 606. POEECLOSURE, of mortgage, general observations, 372, 516. of mortgage, by advertisement, 373. proof of title under, 373. of mechanics' liens, 438. actions of, how shown in abstract, 516. 730 INDEX. [THE REFERENCES ARE TO SECTIONS.] FOREIGN PROBATE, effect of, and how shown, 416. FORFEITURE, defined and distinguished, 57. for non-payment of taxes, how shown, ."529. FRAMING OPINIONS, general remarks upon, 604. FRAUDULENT CONVEYANCES, considered with respect to abstracts thereof, 2^4. GENERAL LAND OFFICE, records of, when recourse must be had to, 1.52. GOVERNMENT SURVEYS, character and effect of, 77. GRADUATION ENTRIES, of public lands, how effected, 114. GRANTS, under swamp land act, 122. in aid of education, 123. in aid of internal improvements, 124. in aid of railroads, 125. GUARDIANS, deeds and conveyances by, 290. HABENDUM, of deeds, office of, 188. HALF BLOOD, children of, participate equally, 552. HEIRS, who are, 30, 547. conveyances by, effect of, 36, 260, 570. when regarded as a word of purchase, 202. post oiit conveyances by, effect of, 261. entitled to representation, when, 548. liability of for ancestral debts, 557. must establish death of ancestor, 562. must prove birth and legitimacy, 565. adoptive, rights and disabilities of, 551. surviving consorts may be when, 553. HEIRSHIP, defined, 29. rules governing, 30, 547. proof of, how made, 34, 560. effect of conveyances by virtue of, 36, 260, 570. rights and privileges of, 545. dependent on fact of death, 562. accrues only to lawful issue, 565. how affected by creditors' liens, 558. HIGHWAYS, on the public lands, 126. INDEX. 731 [the EErERENCBS ABE TO SECTIONb.J HOMESTEAD, right of in United States, 22. consists of what, 25. entries, under IT. S. land laws, 116. mortgages of, low made, 358. exempt from lien of judgment, 458, 480. when inquiries as to, should be made, 611. HOMESTEAD ENTRIES, of public lands, nature of, 116. rights acquired by, 117. HUSBAND AND WIFE, conveyanses to, effect of, 241. conveyances between, 242. not heirs to each other, 553. IDEM SONANS, with respect to names, parties in deeds, 202. with respect to judgment debtors, 468. IMPLIED COVENANTS, in leases, what are, 325. , from words of grant, what are, 181. INCEPTION OF TITLE, presentation of different measures of, 129. INCOME OF REALTY, gift of, passes land, 391. INCUMBRANCE, conveyances subject to, effect of, 235. when grantee becomes liable for, 235. INDENTURE, defined and distinguished, 213. INDETERMINATE DEVISE, construction of, 393. INDEXES, official, in public offices, 67. grantor and grantee, 68. plaintiff and defendant, 70. to public records, not a part of same, 68. importance of in abstract making, 67, 74. inutility of "patent" forms of, 75. of government tract book, 76. of field notes of government surveys, 77. books of original entry, 78. of document numbers, 79. suggestions for form of entries in, 80. of tracts and parcels, 81. of irregular instruments, 82. of tax sales and redemptions, 83. of judgments, 84, 85. of names, 86. method of laying out and keeping, 88. scale for paging, 88. 732 INDEX. [the references are to sections.] INFANTS, effect of judgments against, 457. INHEEITANOE, , words of, in deeds, 182. as affected by rule in Shelly 's case, 182. not dependent on seizin, 544. right of in ease of adoption, 551, 561. tax, how construed and shown, 523. INJUNCTIONS, should be shown in abstract, when, 510. INQUIEIBS IN PAIS, to demonstrate adverse possession, 578, 581, 586. to show fact of death, 562, 599. to prove birth and marriage, 565, 599. INSOLVENCY, voluntary assignments and bankruptcy, 29.'!. INSPECTION, of records, right of, 60. INSTRUMENTS, of conveyance, synopsis of, 95. fiillness of narration of, 96. shown for reference, 97. references to original, 100. irregular, how shown, 99. nature of, how indicated in abstract, 176. INTERNAL IMPROVEMENT GRANTS, for what purposes made, 124, 125. nature of title conferred by, 124. how shown in abstract, 124. INTESTATE, property signifies what, 542 note. INTRODUCTORY, remarks concerning abstracts, 1. statements in abstract, 93, 129. IRREGULAR INDEX, how compiled and used, 82. IRREGULAR INSTRUMENTS, method of compiling index for, 82. of what consisting, 329. how shown in abstract, 99, 329. ISLANDS, ownership of and rules for division, 46. JOINT TENANCY, deeds of laud held by, 247. JUDICIAL- SALES, defined and distinguished, 471. differ from execution, how, 471. validity and effect of, 472. title under, how construed, 473, 474. rights of purchaser at, 484. INDEX. 733 [THE EEl'BRENCES ABE TO SECTIONS.] JUDICIAL SALES — Contimied. purchaser may be compelled to take title under, when, 485. must be confirmed to pass title, 486, 487. certificate of, how shown in abstract, 488. proof of title under, how made, 490. JUDGMENTS, defined and distinguished, 446. operation and effect of, 447. extent and duration of lien of, 450. priority of, 451. lien of attaches to after-acquired property, 452. formal requisites of, 454. entry and docketing of, 453. how shown in abstract, 454. satisfaction and discharge of, 459. against deceased person, effect of, 456. against infants, 457. against partners, 448. against plaintiff, how shown, 454. exemptions from lien of, 458. errors and defects in, how treated, 466. extra-territorial effect of, 449. sales under, 471. JUDGMENT INDEX, of examiner, how compiled and used, 84. LAND CLAIMS, private, nature of title under, 126a. LAND CONTRACTS, relation of parties under, 311. operation and effect of, 312. nature and requisites of, 313. as affected by recording acts, 314. construction of, 315. how shown in abstract, 316. assignment of, operation and effect, 317. performance of, sufficiency of deed and title under, 318. when forfeited, effect of, 319. in form of bond, effect of, 320. LAND GRANTS TO RAILROADS, how made, and title conferred by, 125. LAND MEASURES, tables of, in common use, Ap. used in Spanish-French grants, Ap. used in Spanish-Mexican grants, Ap. used in Texas, Ap. LAND SCRIP, for what issued and to whom, 121. location of public land under, 121. LAYING OUT BOOKS, suggestions in regard to, 78. 734 INDEX. [THE REPERENCES ARE TO SECTIONS.] LEASES, nature and requisites of, 322. formal requisites of, 323. how shown in abstract, 323. effect of covenants and conditions in, 324. covenants in are implied when, 325. of agricultural lands, effect of, 326. assignments of, 327. are a charge upon the fee, 431. LEGAL MEMORY, periods of, how fixed, 45. LEGISLATIVE GRANTS, nature and effect of, 137, 138. rules of construction, relation to, 139. formal requisites of, 140. how shown in abstract, 140. LETTERS, or private correspondence may be shown in abstract, when, 338. practical example, 338. LETTER PRESS COPIES, of abstract, should be taken by examiner, 102. LIABILITY, of examiner for erroneous search, 9. of examiner, character of, 10. of attorney for erroneous opinion, 619. LICENSE, distinguished from easement, 25. LIENS, " general doctrines of, 418. how created and exhibited, 419, 421. created by official bonds, 430. by reservations in deeds, 432. in aid of mechanics, 433. attach to what estate or interest, 435. limitation of, 436. of taxes, attach when, 428. of creditors may defeat succession of heir, 558. of judgments and decrees, 449, 450. LIMITATION AND PRESCRIPTION, doctrine of, 45. title founded upon, 45. LIMITATION, and purchase, words of, 182, 385. of estate, how created, 216, 385. of liens of mechanics and others, 436. LIMITATION, WORDS OF, employed in deeds, 182, 216. used in leases or creation of lesser estates, 323. how affected by the rule in Shelly 's case, 182. LIS PENDENS, should be kept in special books, 69. INDEX. 735 [THE RETERENCES ARE TO SECTIONS.] LIS PENDENS — Co»MTOue(?. general doctrine of, 439. filing of notice of, 74, 442. how shown in abstract, 442. failure to show creates a liability, 69. MAP, of township subdivision, 161. of sectional subdivision, 163. MARGINAL DISCHARGE, of mortgage, effect of, 371. MARGINAL NOTES, how employed in examination of abstract, 596. of municipal ordinances, 330. of recorded instruments not shown, 370. of. probate records, not shown, 371. MARKETABLE TITLE, elements which constitute a, 604, 605. MARRIAGE SETTLEMENTS, legal effect of, 240. MARRIED WOMAN, conveyances by, how made, 243. effect of conveyances by, 244. formal requisites of conveyances by, 245. release of dower by, 246. abstract of release of dower by, 246. devise to, construction of, 398. may acquire title by adverse possession, 587. MASTERS, certificate of sale, how shown, 488. reports, how shown, 507. MASTERS' DEEDS, operation and effect of, 280. how shown in abstract, 280. MEANDER LINES, how run and for what purpose, 165. MECHANICS' LIENS, nature and effect of, 433. rules with respect to priority of, 434. attach to what estates, 435. limitation of, 436. foreclosure of, 438. should be detected by inquiries in pais, when, 609. MERGER, general doctrine of, 347. MILITARY WARRANTS, location of public lands under, 120. MISDESCRIPTION, of parties to deeds, 201, 202. of lands in deeds, 205. in official deeds, 277. 736 INDEX. [THE EBFEBENCES ABE TO SECTIONS.] MORTGAGES, defined and distinguislied, 342, 343. rights of parties under, 344, 345. as affected by estoppel, 346. doctrine of merger applied to, 347. deeds absolute may be decreed to be, when, 348. how shown in abstract, 350. statutory forms of, 351. erroneous description in, 352. effect of covenants in, 353, 355. effect of informality in, 356. when for purchase money, effect of, 357. of the homestead, how made, 358. of after-acquired property, 359. how affected by recording acts, 300. re-records of, how treated, 362. trust deeds in nature of, 363. power of sale in, how shown, 364. sale under, by virtue of power, 364. assignment of, how made, 366. operation and effect of, 366. | formal requisites of assignment of, 367. releases of, how made, 368. by trustee, 370. on margin of record, 371. foreclosure of, how made, 372. proof of title under, 373. MOBTMAIN, statutes of, how far recognized, 251. MUNICIPAL ORDINANCES, as sources of information, 72a. should be shown in abstract, when, 330. executive approval of, 331. operation and effect of, 332. and resolutions, 333. NAMES, of judgment debtors, 466. middle and initials, 467. corrupted or abbreviated, 467. as affected by idem sonans, 468. NAVIGABLE WATERS, what are, 48. incidents of land bounding upon, 46. NEW ENGLAND ABSTRACTS, method of compilation of, Ap. NON-CLAIM, deed of, what is, 222. NOTARY, must affix seal to official certificate, 210. certificate of, when defective, 209. may not acknowledge deed to self, 210. INDEX. 737 [THE REFERENCES ARE TO SECTIONS.] NOTES, by examiner, how inserted, 98, 218. NOTE-TAKING, utility of, considered, Ap. NOTICE, general doctrines of, 61. constructive, effect of, 62, 64, 65. not effected by the destruction of record, 66. constructive, decree rendered upon, 462. actual, effect of, 63. lis pendens, how shown in abstract, 74, 442. of mechanic's lien, 4.33, 609. of sale, under execution, how shown, 477. afforded by chancery records, 500. of easement or servitude, 610. imparted by possession, 361, 581. NUNCUPATIVE WILLS, or oral declarations not sufficient to transfer real estate, 375. OCCUPANCY, nature and extent of rights acquired by, 51. OFFICIAL BONDS, constitute a lien on land, when, 429. OFFICIAL CERTIFICATES, may be shown in abstract, how, 334. OFFICIAL CONVEYANCES, defined and distinguished, 270. nature and effect of, 271. OFFICIAL AIDS TO SEAECH, what are and how consulted, 67. OPINIONS OF TITLE, general remarks concerning, 614. aids in rendering, 600, 601. how framed, 613. clearness of expression essential in, 617. by oral communication, 618. erroneous, liability of counsel for, 619. ORAL OPINIONS, undesirability of, 618. ORDER, for examination of title, form of, Ap. of publication for constructive service, 505. of confirmation, in judicial sales, 486, 487. ORDINANCES, of cities and towns, when necessary to be shown, 330. practical example of abstract of, 330. executive approval of, 331. operation and effect of, 332. ORIGIN, of abtracts, speculations upon, 3. Warvelle Abs. — 47 738 INDEX. [THE EEFEEBNCES AEE TO SECTIONS.] ORIGINAL ENTRY, in abstract books, how made, 78. suggestions as to form of, 78. long form method of, 80. PARTIES, to deeds and other instruments, 173, 175. names of, how displayed in abstract, 174, 175. defects or errors respecting, how shown, 201. to land contracts, relation of, 311. to legal proceedings, 454, 457, 466, 468. PARTITION, effect and nature of, 248. deed of, how shown, 248. proceedings for, how shown in abstract, 513. PARISH RECORDS, are competent as eyidence, 73. PARTNERS, lands held by, how regarded, 249. conveyances by, 249. judgments against, how entered, 448. PARTY WALLS, agreements for, effect of, 337. how shown in abstract, 337. PATENTS, defined and distinguished, 141. formal requisites of, 156. operation and effect of, 153, 154. registration of — general land office record, 152. construction of, 155. how shown in abstract, 156. from the state, effect and construction of, 157. formal requisites of, 159. PATENT SYSTEMS, for compiling abstracts, observations upon, 75. PERFORMANCE, of contract to convey, sufficiency of deed and title, 318. PERPETUITIES, attempts to create same void, 402. PERUSAL OP ABSTRACT, general suggestions for, 591. utility of notes as an aid to, 592. analytical chains used in, 601. use of sketch maps, 602. preservation of memoranda employed in, 603. inquiries in pais should be directed, when, 608. PEDIGREE, to prove heirship, example of, 568 note, affidavit of, 599. PLATS, of public surveys, how made, 161, 163, 164. INDEX. 739 [THE EBTBBENCES ABE TO SECTIONS.] PLATS — Continued. of private surveys and subdivisions, 166. formal requisites of, 167. liow shown in abstract, 167. effect of registration of, 168. vacation and cancellation of, 169. dedication by, effect of, 170. by assessor in tax proceedings, 528. POSSESSION, notice imputed from, 361. POST OBIT CONYEYANCES, effect of, 286. POWEBS, definition of, 21. obtain to what extent in United States, 21. of disposition to holder of life estate, 392. POWEES OF ATTORNEY, general doctrine of, 262, 263. how shown in abstract, 262. revocation of, 264. POWER OE SALE, distinguished from trust of sale, 283. in trust deeds, how exercised, 364. how shown in abstract, 363. PRECATORY TRUSTS, what are and how created, 401. PRE-EMPTION ENTRIES, of public lands, how effected, 111. nature of title conferred by, 112. what lands subject to. 111. conveyances made before, effect of, 113. abstract of, from government tract book, 129. law of, repealed. 111. PREFERENCES, among heirs, rules of, 549. PRESCRIPTION, is founded on what presumptions, 45, 572. effect of on title, 45, 572. limited by what fixed periods, 45. and adverse possession, 572, 580. PRESERVATION, of memoranda of counsel, 603. PRESUMPTIONS, of heirship and legitimacy, 566. PRIMOGENITURE, right of, not recognized in United States, 549. PRINTED COPIES, of abstracts, opinions concerning, 612. PRIVATE LAND CLAIMS, what are, and how established, 126a. 740 INDEX. [THE REFERENCES ARE TO SECTIONS.] PROBATE PROCEEDINSS, in respect to wills and testamentary papers, 411, 414, 417. of wills, how shown in abstract, 414. in foreign jurisdiction, how shown, 416. operation and effect of decrees in, 497, 564, 568. in intestacy, how shown in abstract, 568. to show death and heirship, 564, 569. PROBATE SALES, validity and effect of, 492. nature and requisites of, 493. how shown in abstract, 494. PROCESS, office and formalities, 501, 502. service of, how made, 503. proof of service of, how shown, 504. PROHIBITED CONVEYANCES, former and present state of law respecting, 233. PROOF, of conveyance by official certificate, 334. of title under foreclosure of mortgage, 373. of publication, notice of sale, 478. of title under judicial and execution sales, 490. of service of summons in legal actions, 504. of heirship, how effected, 34, 560. of death, 35. of birth and legitimacy, 565. of adoption, 561. to support title by adverse possession, 590. PtTBLIC LANDS, system of disposal of, 106, 107, 108. public sales of, 107. private entry of, 108. subject to private, what are, 109, 110. pre-emption entries of. 111, 112. graduation entries of, 114. donation entries of, 115. entries of, under homestead laws, 116. under desert land act, 118. under tree claim act, 119. location of by military warrant, 120. by IT. S. land scrip, 121. selections of under swamp land grants, 122. disposal of in aid of education, 123. and internal improvements, 124, 125. public highways upon, 126. private claims of, 126a. who may acquire title to, 127. inceptive title to, how shown in abstract, 128. town site entries upon, 133. survey and division of under U. S. land laws, 161. INDEX. 741 [THE REFERENCES ARE TO SECTIONS.] PUBLIC GEANT, title by, what is, 40. synopsis of, in abstract, 125. PUBLIC SURVEYS, how executed and returned, 161. PUBLICATION, constructive service by, effect of, 503, 504. of notice of sale under execution, 477, 478. of summons, afBdavit and order for, 505. PUEOHASB, title by, defined, 37. money, application of, 282. PURCHASER, may require to be furnished with abstract, when, 11. abstract becomes property of, when, 11. must see to application of purchase money, when, 282. at o£S.cial sale, as charged with notice of what defects, 472. at execution sale, takes what title, 473. trustee can not become, of trust estate, 291, 292. tax payer ean not be, at tax sale, 531. rights of, at tax sale, 532. QUALIFICATIONS, of examiner of titles, 8. QUIA TIMET, action of, effect of on title, 512. QUIT-CLAIM DEEDS, legal import of, 219. how shown in abstract, 220. effect of covenants in, 221. RAILROADS, grants made in aid of, 125. RECEIVER'S RECEIPT, issued at time of entry, 108. does not constitute evidence of title, 134. how shown in abstract, 134. RECITALS, in deeds, how shown in abstract, 187. effect of in official deeds, 272. in sheriff's deeds, when material, 274. in tax deeds, 537. RECORDS, consist of what, 58. depositories of, 59. right of inspection and copy of, 60. doctrine of notice imparted by, 61. afford constructive notice, when, 62. loss or destruction of, 66. when abstract may supply the place of, 66. as aids in real estate examinations, 67. 742 INDEX. [THE REFERENCES ARE TO SECTIONS.] EECOEDS — Continued. municipal, when shown in abstract, 72a. of church or parish, effect of, 73. of United States land entries, where kept, 76. of government surveys, effect of, 77. of general land office, how made and kept, 152. of mortgages, impart notice of what, 360. of chancery proceedings, 495, 498. corrected, how shown, 239. EECTANGULAE STJEVEYING, exposition of the system of, 164. EEDEMPTION, equity of, of what consisting, 344. bills for, how shown, 515. from tax sale, how shown in abstract, 533. EEFEBENCE, instruments shown for, 97. to original instruments and private memoranda, 100. EEGISTEATION, American doctrine of, 62, 64. general rules regarding, 64, 65. effect of not abrogated by destruction of record, 66. of patents from United States, 152. of plats and subdivisions, effect of, 167, 168. of deeds, how noted in abstract, 178. raises of presumption of delivery, when, 197. of mortgages, effect of, 360. of death certificate when evidence of fact, 563. EELATION, doctrine of, expounded, 44. of parties under land contracts, 311. EBLEASE, as a substantive mode of conveyance, 225. of dower by wife, 23, 246. of mortgage, form and requisites of, 368, 369. how shown in abstract, 369. of mortgage by trustee, 370. of mortgage on margin of record, 371. EELIOTION, defined and distinguished, 46. title to land acquired by, 46, 48. EELIEF ACTS, how shown in abstract, 140. EELINQUISHMENT, considered as method of passing title, 52. EEMAINDEE, definition of, 19. estate in, will be raised when, 389, 396. contingent, limitation of in wills, 394, 396. EEMAINDEE-MAN, adverse possession will not lie against, 583. INDEX. 743 [THE EErEBENCES ABE TO SECTIONS.] REMOYAL, and substitution of trustees, 268. EEPRESENTATION, right of, among heirs, 548. BEPTJGNANCY, in deeds, by what rule governed, 201, 209, 211. in wills, how construed, 382. REQUISITIONS FOR TITLE, made by counsel on examination, 596. answers to, 598. of what consisting, 598. RE-RECORDS, how shown in abstract, 238. of mortgage, how shown, 362.i RESERVATION, distinguished from exception, 189. how created and shown, 189. RESIDUARY DEVISEE, when charged with testator's debts, 405. RESIGNATION, of trustee will not divest the trust, 269. RESOLUTIONS, of municipal boards, should be shown when, 333. RESTRAINT OP MARRIAGE, imposed by will, validity of, 395. RESTRICTIONS, inserted in conveyances, effect of, 190, 232. RESULTING TRUSTS, general doctrine of, 237. REVERSIONERS, adverse possession will not run against, 584. REVOCATION, of power of attorney, how made, 264. of trust, 266. of wills, 409. RIPARIAN TITLES, nature and incidents of, 48. diversity of views thereon, 48. ROOT OP TITLE, of what consisting, 136. RULES, for division of land acquired by accretion, 46. of descent, 30, 547. for land measurement, Ap. SALES, of public lands, how made, 107. in pursuance of judgments and decrees, 473, 482. in probate, 492, 493. for non-payment of taxes, 529, 530. 744 INDEX. [THE REFERENCES ARE TO SECTIONS.] SATISFACTION, of mortgage, distinguished from release, 368. form and requisites of, 369. how shown in ahstraet, 369, 371. by trustee, 370. by marginal discharge, 371. of liens and charges generally, 418. of judgment, how shown, 459. SCALE, for indexing abstract books, 87. of land measures in United States, Ap. SCHOOL LANDS, method of donation of, 123. grant of, how shown in abstract, 131. SEALS, effect of, when afllxed to deeds, 194. of notaries should attest acknowledgment, 196. of corporations, 258. SECTIONS, of public land, how surveyed and subdivided, 162, 163, 164. diagrams of, 163. when made fractional, 163, 165. SERVICE, of process, how made and shown, 503, 504. proof of, how made, 504, 505. SHELLY 'S CASE, rule in, effect of, 182, 386. SHEEIPE'S DEED, operation and effect of, 274. necessity of acknowledgment of, 275. may not be reformed in equity, 277. statutory forms of, 278. how shown in abstract, 278. under decree, effect of, 279. recitals in, when material, 274. SIGNATUEE, gives efficacy to conveyances, 193. how indicated in abstract, 193. in execution of corporate deeds, 256. to deed by attorney in fact, 262. SOUECES OF TITLE, in England and the United States, 17, 18. when search should extend to, 90, 129. SPECIFIC PEEFOEMANCE, actions for, when shown in abstract, 514. STAMPS, when required and how indicated, 199. STATE LANDS, by what title held, and how disposed of, 135. sales of, how shown in abstract, 135. formal requisites of patents for, 159. INDEX. 745 [THE EErBRBNCES ARE TO SECTIONS.] STATE LANDS — Continued. effect and construction of patents for, 157, 158. adverse rights will not run against, 588. STATXJTOEY TOEMS, of deeds and conveyances, 223. of sheriff 's deed, 278. of mortgage, effect of, 351. of tax deed, 535, 537. SUBDIVISIONS, of the public lands, how made, 161. of section, 163. resubdivisions of, 166. effect of, in subsequent conveyances, 166. formal requisites of, 167. how shown in abstract, 167. vacation and cancellation of, 169. by assessors for taxation, 528. SUBSTITUTION, of attorney in fact, when permitted, 263 note. SUCCESSION, line of, in descents, 30, 547. rules of, according to civil law, 31. through adoption, requires what to be shown, 33, 561. SUMMONS, how shown in abstract, 501, 502. service of, how made, 503. proof of service of, 504. service of by publication, how shown, 505. SUEEENDEE, considered as form of conveyance, 227. how shown in abstract, 227. SUEVIVOESHIP, in joint tenancies, doctrine of, 247. presumption of, in case of disaster, 562. SUEVIVING CONSORTS, are not heirs of deceased, 553. SWAMP LAND GEANTS, origin and history of, 122. selection of public land under, 122. SYNOPSIS, of instruments, suggestions for, 95. TACKING, of adverse claims, doctrine of, 580. TAX, index, how laid out and kept, 83. definition and nature of, 522. what property subject to, 523. lien of, attaches when, 428, 524. sale for non-payment of, how effected, 529. inheritance, how shown, 523. 746 INDEX. [THE EEFEKENCBS AEE TO SECTIONS.] TAXATION, subjects of the burdens of, 523. proceedings incident to, 527. of abstract books and indices, 12. TAX ABSTBACT, caption of, 93. should show what matters, 540. TAX DEEDS, ' validity and effect of, 535, 536. possession under, how acquired, 536. formal requisites of, 537. how shown in abstract, 537. effect of as evidence, 536, 538. how aided by limitation and possession, 539. validity of, may be impeached when, 539. TAX INDEX, of the examiner, how compiled and used, 83. TAX SALE, how made and how shown, 529, 531. tax payer as purchaser at, acquires no title, 531. rights of purchasers under, 532. redemption from, how shown, 533. certificate of purchase of, 534. abstracts of, how compiled, 540. TAX TITLE, nature and extent of, 525, 538. TECHNICAL ESTOPPEL, application of principles of,- in examinations of title, 42. TECHNICAL PHRASES, in deeds, effect of, 181, 182. in wills, how construed, 385, 387. TENANCIES, for years, of what consisting, 24. TENANTS IN COMMON, nature of the estate held by, 247. deeds by, to effect partition, 248. when partners will hold as, 249. statute of limitations does not run as between, 585. may assert adverse rights when, 578. TESTAMENTARY TITLES, character and effect, 374. formal proof of, 414, 416. TIDE "WATERS, common law of, not applicable in United States, 48. TIMBER CULTURE ENTRIES, on public lands, how effected, 119. act concerning, repealed when, 119. TITLE, distinguished from estate, 14. methods of acquisition of, 14, 15, 37. how classified, 16. INDEX. 747 [THE RErEBENCES AEE TO SECTIONS.] TITLE — Continued. as affected by the doctrine of relation, 44. derived from what sources, 17. nature of in the United States, 18, 29. allodial, nature of estate held under, 19. color of, what constitutes, 26. evidences of, 27. how acquired and transferred, 28. by purchase, defined, 37. by descent, how acquired, 28, 29, 542. by deed, 28, 38. by devise, 28, 39, 376. by public grant, 28, 40. through estoppel, 41. acquired through accretion or reliction, 46. to lands on navigable waters, incidents of, 46, 48. derived through eminent domain, 53. by dedication, 49. by escheat, 55. derived through confiscation, 56. by prescription and limitation, 45. preliminary stages of, 104. inceptive measures under U. S. land laws, 105. nature of, conferred by private entry, 108, 109. conferred by general laws. 111, 114, 115, 116, 118, 119. to pubUe lands, who may acquire, 127. acquired by sheriff's deed, 274, 278. of assignee in insolvency, 297, 307. of purchaser at execution sale, 473. under execution sale, vests when, 474. under judicial sale, 483. purchaser may be compelled to take, when, 485. proof of, under execution and judicial sales, 490. derived from tax sale, 525, 526. acquired by adverse possession, 572, 590. opinions of, how made, 613. analysis of, utility in examination, 600. validity, of, in framing opinions, 604. flaws in, how detected and obviated, 606. clouds upon, effect of, 607. TOWNSHIP, how surveyed and subdivided, 161. diagram of, 161. , TOWN SITE ENTEIES, how made and for what purpose, 133. how shown in abstract, 133. TEAOT BOOK, of the government land oflce, 76. of the examiner, how compiled, 81. TRUSTS, general doctrine concerning, 20. 748 INDEX. TETJSTS — Continued. resulting, generally considered, 237. for what purposes permitted, 20. words which create, 293. declaration of, how made and shown, 267. created by will, 399, 401. precatory, what are and how raised, 401. TEUSTEE8, how created, 265, 281, 399. declarations by, 267. removal or substitution of, 268. resignation or refusal to act of, 269. transfers of legal estate by, 282. purchaser must see to application of purchase money by, when, 282, 283. deeds and conveyances by, 281, 284. may not purchase trust estate, 291, 292. deeds by under power of sale, 283. releases by, of mortgaged property, 370. in testamentary conveyances, 282, 399. may not delegate trust powers, 281. TRUST DEEDS, character and effect of, 363. power of sale in, how shown, 364. in nature of mortgage, 363. how shown in abstract, 363. TRUST OP SALE, distinguished from power of sale, 282. UNITED STATES, nature of title to land in, 18. estates in land recognized by, 19. being the sovereign power, not affected by estoppel, 43. or limitation, except when, 43, 45. system of disposal of lands of, 106. UNRECORDED EVIDENCE, abstract does not contemplate, 341. USES AND TRUSTS, nature of in United States, 20. defined and distinguished, 20. USER, and possession will support claim of title when, 572, 578. VACATION, of plats and subdivision, 169. how shown in abstract, 169. of streets and public roads, 330. VENDOR, not required to furnish abstract in absence of contract, 11. VENDOR'S LIENS, must be disclosed to bind third parties, 423. VERDICTS, should be noticed, when, 508. INDEX. 749 [THE REFERENCES ARE TO SECTIONS.] VOLUNTARY ASSIGNMENT, character and operation of, 293. validity of, 295. how affected by bankrupt law, 294. formal requisites of, 296. construction and effect of, 298. conflict of laws relating to, 299. VOWEL INDEX, object and method of use, 86. WARRANTY, covenant of, extends to what, 191, 216. of title, in quit-claim deeds, effect of, 221. against acts of grantor only, effect of, 222. how construed m statutory forms, 223. implied from words of grant, 191, 216. WARRANTY DEEDS, legal import of, 216. how shown in abstract, 217. with limited covenant, 222. WIFE, conveyances to, as marriage settlements, 240. conveyances to, and to husband, effect of, 241. conveyances to, from husband, 242. conveyances by, to stranger, 243. release of dower by, 23, 246. deed of, how acknowledged, 245. WILLS, agreements for conveyances by, 321. general doctrines relating to, 374. construction and operation of, 378, 381. repugnant provisions, how treated, 382. when real estate will pass under, 388. interpretation of words and phrases,, 387. limitations and remainders in, 389. contingent remainders created by, 396. language required to raise trusts in, 399. precatory trusts in, how expressed, 401. residuary clause in, effect of, 407. codicils to, effect of, 408. formal requisites of, 410. abstract of, how made, 411. probate of, effect of, 414. foreign probate of, 416. construction of in equity, 531. exemplifications of, how shown, 416. WITNESSES, to deeds, attestation of, how shown, 195. WORDS, importing technical character, 387. which pass real estate in wills, 388. 750 INDEX. [THE REFERENCES ARE TO SECTIONS.] WORDS OF GBANT, what are, in deeds, 181. and wills, 384. WORDS OF PURCHASE AND LIMITATION, of what consisting, 182. in leases, what are, 323. in wills, general rules of, 385. create remainders, when, 396, 397. WRIT, of attachment, how levied, 445. of execution, levy and return of, 475, 476. INDEX TO FORMS [THE KEFBRENCES AEE TO SECTIONS.] ABSTEACT, foimal captions for, 93. general examination, 93. special examination, 93. examination of tax title, 93. formal conclusion of, 103. notes wliere tax sales are not shown, 103. verification of copies of, 103. general arrangement of, 94. ABSTRACT INDICES, original entry, 78. document number index, 79. tract index, 81. irregular index, 82. judgment index, 84. tax index, 83. scale for indexing, 87. ACKNOWLEDGMENT, notes of, 196, 210. of corporation deeds, 256. ADVEESE TITLE, notes appended to adverse deeds, 573. AFFIDAVIT, general form of, 329. of domestic condition, 329, 339. of pedigree, 599. of matter in pais, 339. of publication, 478. A6EEEMENT, for conveyance by deed, 316, 320. for party wall, 337. ANALYSIS OF TITLE, to show ownership, 600. to trace course, 601. English method, Ap. ASSIGNMENT, by register in bankruptcy, 307. of mortgage, 367. ARRANGEMENT, of Abstract, chain of title, 94. ASSESSMENTS, note of levy of, 541. 751 752 INDEX TO FOEMS. [THE REFERENCES ARE TO SECTIONS.] ATTACHMENT, proceedings in, 445. certificate of, 445. BANKRUPTCY, petition, 306. assignment, 307. assignee's deed, 308. discharge, 309. BOND, for deed, 320. CERTIFICATE, of examination, 103. of general land office record, 156. of sale by land commissioners, 135. of public officials, 334. of conformity, 310. of levy (attachment), 445. of sale (execution), 488. of sale (judicial), 488. official, 334. of proof of conveyance, 334. of death, 563. of proof of will, 413. CHANCERY RECORDS, general form, 509. in special eases, 513. in partition suits, 513. in condemnation suits, 520. notes of, divorce, 518. CONGRESSIONAL GRANTS, act of Congress, reinstatement, 140. by way of confirmation, 140. CORPORATE CONVEYANCES, corporation deed, 255. special appended matter, 256. showing power to execute, 256. general form of execution, 258. DECLARATION, of vacation of plat, 169. of trust, 267. DECREE, common form, 465. where findings are inserted, 465. DEEDS, warranty, 217. warranty, by attorney, 262. warranty, special, 222. quit claim, special, 220. INDEX TO FOEMS. 753 [THE KEFERENCBS ARE TO SECTIONS.] DEEDS — Continued. confirmation, 226. in futuro, 229. surrender, common law, 227. of special estates, 231. creating remainders, 231. subject to incumbrance, 235. partition, 248. re-record of, 238. duplicate, 238. subject to mortgage, 235. by corporation, 255. by attorney in fact, 262. by sheriff, 278. by master, 280. by trustee, 284. by administrator, 288. by register in bankruptcy, 307. by assignee in bankruptcy, 308. by county clerk (tax), 537. of trust, 363. of relinquishment, 246. DISCHARGE, in bankruptcy, 309. on margin of record, 371. of judgments, 459. DISMISSALS, of action, 454. as to certain defendants, 454. EXCEPTION, from a grant of land, 189. EXECUTION, of corporation deeds, 256, 258. EXECUTION SALE, when followed by deed, 472. INDEX, of original entries, 78. of document number record, 79. ■of land tracts, 81. of tax sales, 83. of judgments, 84. INITIAL STATEMENTS, entry at government land oflSce, 129. donation by the United States, 130. cession of section sixteen, 131. cession of lieu lands, 131. receiver's receipt, 134. commissioner's receipt (State lands), 135. Warvelle Abs. — 48 754 INDEX TO FOEMS. [THE EErEEENCES AEE TO SECTIONS.] JUDGMENT, eommon form, 454. note of satisfaction of, 459. note where no execution has been issued, 454. against plaintiff, 454. LEASE, for years, 323. re-record of, 283. LETTEE, suggestion for showing, 338. LIS PENDENS, notice of, 442. MASTEES, certificate of sale, 488. deed, 280. MOETGAGES, that have been released, 350. comtaon form, when still subsisting, 350. conveyances subject to, 235. to secure purchase money, 357. re-record of, 362. note, when apparently adverse, 352. trust deed, in nature of, 363. power of sale in, 363. release of, 369. satisfaction of, 369. marginal discharge of, 371. assignment of, 367. note, when released by successor in trust, 370. NEW ENGLAND ABSTEACTS, sample, Ap. NOTES, of reference to original documents, 100, 178, 201, 218. of non-registration of instruments shown, 140. of reference to other records, 263, 370, 371. of certificate of magistracy, 210. of covenant of non-claim, 222. of chancery records, 509. of adverse conveyances, 573. of probate of will, 413, 417. of correction of record, 239. of power of sale in other instrument, 284. of reference to municipal records, 330. of non-payment of taxes, 524. of payment of taxes, 524. NOTICE, Us pendens, 442. INDEX TO FORMS. 755 [THE KEFEKENCES AEE TO SECTIONS.] NOTICE — Contirmed. of sale, 477. proof of publication of, 478. OFFICIAL CONVEYANCES, sheriff's deed, 278. master's deed, 280. trustee's deed, 284. administrator's deed, 288. assignee's deed, 308. county clerk's deed (tax), 537. OBDER, for examination of title, Ap. ORDINANCE, of municipality, 330. OPINION OF TITLE, based on personal search, 614. based on the abstract, 616. PATENTS, from the United States, 156. PEDIGREE, English form of, 568. aflSdavits of, 599. POWER, of attorney, 263. revocation of, 264. of sale, 363. PROBATE, of wills, 413, 417. of estate, 569. sales, 494. PROCEEDINGS, in bankruptcy, 306. in probate (will), 413, 417. in probate (sale), 494. in probate (heirship), 569. in chancery, 509. in partition, 513. in condemnation suits, 520. for divorce, 518. RECEIPTS, of Eeeeiver TJ. S. Land Office, 134. of Commissioner State Lands, 135. RECORD, note of correction of, 239. RELEASE, of dower, 246. of mortgage, 369. on margin, 371. 756 INDEX TO FORMS. [THE REFERENCES ARE TO SECTIONS.] BE-RECORD, of deeds, 283. of lease, 283. of mortgage, 362. RESERVATION, from a grant of land, 189. RESTRICTION, upon use of land, 190, REVOCATION, of power of attorney, 264. SALE, notice of, 477. certificates of, 488. for taxes, 529, 530. in bankruptcy, 307. SALES, in probate, 494. in chancery, 488. under execution, 488. SATISFACTION, of mortgage, 369. of mortgage on margin of record, 371. of mortgage by executor, 371. SCALE, for indexing books, 87. SHERIFF'S, certificate of sale, 488. deed, 278. STAMPS, method of showing, 199. SUBDIVISION, minutes of plat, 167. approval by civic authorities, 167. vacation of, 169. SURRENDER, of life estate, 227. TAX SALES, general forms, 529. forfeiture, 530. deeds resulting from, 537. TRUST, declaration of, 267. deed in, 363. VACATION, of plat, 169. of street, 330. VERIFICATION, of copy of abstract, 612. INDEX TO FORMS. 757 WILLS, common form, 413. exemplified copy of, 416. with special provisos, 413, 417. proof of, in probate, 413, 416. probate of, 413, 417. note of proof of death, 413. KF 678 W29 1921 c.l Author Vol. Warvelie, George William Title Copy A practical treatise on aba Lrau IB aiid eAamliialiuub tile to real property -of- Date Borrower's Name ^ " ■■ ^liffl ^H^^^^^^^^^H