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of the king, or of the year of our lord; lastly, the clause of his testibus; and yet all those parts were contained in very few and significant words, haec fuit candida illius aetaits fides et simplicitas, quae pauculis lineis omnia fidei firmanento posuerunt.
The eight parts of a deed, as generally given at the present time, differ a little from the above list, and are as follows: (1) the premises, (2) the habendum; (3) the tenendum; (4) the reddendum; (5) the conditions; (6) the covenants; (7) the warranty; (8) the conclusion.
"The office of the premises of the deed is twofold; first, rightly to name the feoffer and the feoffee; and secondly, to comprehend the certainty of the lands or tenements to be conveyed by the feoffment, either by express words, or which may by reference be reduced to a certainty; for certum est quod certum reddi protest. The habendum hath also two parts, viz., first, to name again the feoffee; and secondly, to limit the certainty of the estate.
"If in the premises lands be letten, or a rent granted, the general intendment is, that an estate for life passeth; but if the habendum limit the same for years, or at will, the habendum doth qualify the general intendment of the premises. And the reason for this is, for that it is a maxium in law that every man's grant shall be taken by construction of law most forcible against himself.
"If a lease be made to two, habendum to the one for life, the remainder to the other for life, this doth alter the general intendment of the premises, and so hath it been oftentimes resolved. And so it is if a lease be made to two, habendum the one moiety to the • Coke's Institutes, Vol. II, p. 195.
one, and the other moiety to the other, the habendum doth make them tenants in common; and so one part of the deed dother explain the other, and no repugnancy between them.
“The date of the deed many times antiquity omitted; and the reasons thereof was, for that the limitation of prescription, or time of memory, did often in process of time change, and the law was then holden, that a deed bearing date before the limited time of prescription, was not pleadable; and therefore they made their deeds without date, to the end they might allege the, within the time of prescription. And the date of the deed was commonly added in the reign of E. 2 and E. 3, and so ever since.” 6
The importance of the habendum and tenendum clauses of the deed have greatly decreased, until these clauses are to-day often merely represented by the words, “to have and to hold.” The conditions in a deed have already been treated in a previous chapter."
SECTION 72. COVENANTS AND WARRANTY.
“Among the classes usually inserted in deeds there are a number of stipulations in the nature of collateral promises of the performance or non-performance of certain acts, or of agreements that a given state of things does or shall, or does not or shall not, exist, which are technically known as covenants. When relating to title, they are inserted for the purpose of securing to the grantee the benefit of the title which the grantor professes to convey, and as an indemnity against any loss that may arise in consequence of any impairment of defect of such title. By statute the employment of certain operative words of grant & Coke's Institutes, Vol. II, p. 195, ? See Chapter III.
are also given the force of limited covenants for certain purposes."
There are five so-called common covenants, which accompany nearly every deed, and which are presumed under the law of most states. These five common covenants, are those of seizin, good right to convey, that , the land is free from all incumbrances, for quiet enjoyment, and general warranty.
A covenant is said to run with the land when the right of action thereon will pass to any assignee of the land.'
SECTION 73. SIGNING AND SEALING. A seal was always required to any written deed under the common law, but signing was unnecessary prior to the passage of the Statute of Frauds. At the present time every deed must be signed and sealed. Unless expressly so required by statute the signature need not be at the end of the deed, and in most states a mere scroll on the paper is a sufficient seal. A person who cannot write may substitute his mark for his signature. SECTION 74. ATTESTATION AND ACKNOWLEDGMENT
AND REGISTRATION. Attestation of a deed was not necessary at common law, and is not necessary in this country except where made so by statute. The Common law made no provision for the registration of deeds, and even to-day in England registration is required in only two countries in that country. Each of the states in this country have a complete system of registration. The failure to registry a deed will not invalidate it as be8 Warvelle on Real Property, page
subject of covenants, the stu
dent is referred to Warvelle on • For a complete discussion of the
Real Property, pages 273, 282.
tween grantor and grantee, but such registration is necessary to protect the grantee against the claims of third parties.
"In most of the states, in order that a deed may be recorded, and furnish constructive notice to subsequent purchasers, it must be acknowledged and proved before some officer authorized to take such acknowledgments, and the certificate of acknowledgment must be endorsed, in the deed. And it is also provided by statute in some states that a transcript of the record of a duly acknowledged deed will be received as primary evidence of the contents of such instrument in the courts of those states, without further proof thereof. It must be observed that the acknowledgment is intended to evidence the due execution of the deed and not to supply any of its deficiencies. And if the deed in itself is inoperative on account of some serious deficiency it cannot be cured by admissions in the certificate.”
SECTION 75. DELIVERY. Delivery was necessary to render a deed effective, both at Common law and under modern statutes. Delivery may be in escrow. A delivery in escrow is one made to a third person who is to hold the deed until a certain act has been done (as for example the payment of the purchase price) and then deliver the deed to the grantee named in the deed.10 16 A more complete treatment of
subject of Abstracts, in this the matters discussed in this chapter will be found under the
DESCRIPTION OF LAND.
SECTION 76. IN GENERAL. In addition to describing the estate which the grantee is to take, it is also necessary that the deed should identify the land to be transferred by such deed. This identification of the land may be secured by reference to the following: (1) natural objects or boundaries, such as rivers, mountains, etc.; (2) artificial devices, such as stakes or marked trees; (3) courses and distances.
By course is meant the direction of a line, and by distance, its extent. Natural objects and artificial devices are also known as monuments; courses and distances, as metes and bounds. The name of calls is given to all the above mentioned objects collectively.
It is also a common practice to insert in a deed the quantity of land conveyed thereby. In case of inconsistencies between the different methods of identification they control, in the following order: first, natural objects; second, artificial devices, third, courses and distances, and fourth, enumeration of quantity.
In the case of a description where one description is accurate and the other manifestly inaccurate, the latter may be rejected as surplusage.
SECTION 77. EXCEPTIONS AND RESERVATIONS.
A general description of the property conveyed may be qualified by what is known as “exceptions and reservations.
An exception is a withdrawal from the operation