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ABSTRACTS OF TITLE.

SECTION 1. DEFINITIONS.

There is now in general use throughout the United States, in connection with sales and conveyances of land and other forms of real property, what is popularly known as an "Abstract of Title." Both the name and the ideas which it denotes are borrowed from the legal system of Great Britain, yet, like many of the terms derived from English law, an American abstract is something very different from its English prototype.

An Abstract may be defined as a condensed history of the title to land, consisting of a synopsis or summary of the operative parts of all of the various instruments of conveyance which in any manner affect said land, or the title thereto, or any interest therein, together with a statement of all liens, charges and incumbrances thereon, or liabilities to which the same may be subject, and of which it is in any way material for purchasers to be apprised. It is usually arranged in chronological order and is intended to show the origin, course, and incidents of title without the necessity of referring to the original sources of information.

In England the abstract is compiled from the original documents, to which it stands in the nature of a well arranged index, but in the United States it is prepared from the documents only as they appear upon the public records.

1 Warvelle on Abstracts (3d Ed.), p. 2. This is the leading work upon the subject. References

thereto in this article are made with the special permission of author and publishers.

SECTION 2. THE ENGLISH METHOD.

The differences between an English and an American abstract will be better understood by a comparison of the two systems.

It has long been the practice in England, on a sale of land, or other property which does not pass by a mere delivery but is held by a title depending on documentary evidence, for the solicitor for the vendor to prepare and deliver to the vendee an abstract of the various matters upon which the vendor relies to sustain his claim of ownership. This would consist of a synopsis of the deeds, wills, etc., which constitute the vendor's chain of title, together with such extraneous facts as may be relevant to such title, as certificates of marriage, baptism, burial, etc., in connection with pedigrees or family histories.

The abstract is invariably prepared from the original documents, the vendor, as a rule, retaining such of his title deeds as relate to or cover other property than that sold, as also all other documents until consummation of sale. The purchaser, however, is usually permitted to compare the abstract so furnished with the documents from which it is compiled, in order that he may see that it contains a correct and faithful statement of all circumstances disclosed by them which may in any way affect the title.

When the abstract is delivered to the purchaser he is required to found thereon such "requisitions," by way of further inquiry or objection, as he may think proper, and in default thereof, within a limited time, he will be deemed to have accepted the title. The inquiries and objections, when made, are answered by statements and observations, signed by the vendor or his solicitor, and all become a part of the abstract.

This was the method introduced into the American colonies, and out of which has grown our present system of abstract compilation. But the methods now pursued in this country bear but slight resemblance to those just described, as will be seen from the following:

SECTION 3. THE AMERICAN METHOD.

The spirit and operation of our land laws, as well as the many legal usages peculiar to the United States, preclude the adoption of the English methods in this country. Our system of registration, with its attendant doctrine of constructive notice, has rendered comparatively unimportant the original documents, and has thrown upon the purchaser the burden of examining the public records. To discharge the legal duty thereby occasioned and at the same time to obviate the necessity of a personal search of the records, there has been developed the modern American abstract.

During the earlier years of our history but little attention was paid to title in purchases of real property. Usually the vendee was fully satisfied with the vendor's warranty deed, the covenants thereof being taken as conclusive evidence of all the facts they recited. No inquiry was made with respect to the past, present possession being considered a sufficient guaranty of ownership, and no thought was had 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, according to the English practice, and such may still be the custom in some parts of the country.

But with the increasing commercial activity of the age, and the removal of 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 purchasers now part with their money only on strong assurance of title. It is no longer practicable, however, 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 protection in the covenants of their deeds, it is necessary that, in some way, 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. And so, to satisfy this demand, we now have the modern abstract of title.

In compiling an abstract, the examiner simply collects, condenses and arranges the information found of record, without, as a rule, 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 sufficiency 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 often annexed to the abstract, and on the strength of which future sales and other dispositions of the property are usually made."

• Warvelle on Abstracts, p. 5.

SECTION 4.

ESSENTIALS OF AN ABSTRACT.

As a general proposition, an abstract should furnish all the material information contained in the original documents and records from which it is compiled, and that, as fully and completely as if they had been specifically inspected. It should show, when from the source of title, the inceptive measures by which the government, either National or State, was divested of the original title. This is the foundation of all derivative rights in the individual. Then should follow, in regular chronological sequence, the devolution of the title from the government to the present claimant of the land, which would include all transfers of any and every interest. It should further show any and all adverse interests, titles or claims of record; all liens, charges and incumbrances, however created, including judgments against the person during the period the law makes them a lien on land; all unpaid taxes, special assessments and statutory liens, and every other matter or thing appearing of record that may in any way affect, implicate or impair the title. To these, in proper cases, may be added any extraneous matter, or as usually termed, matter in pais, that to the examiner may seem pertinent or material.

It will thus be seen that the scope of inquiry of an American abstract is much broader than the English document of the same name, and, hence, many American abstract makers prefer to designate their work as an "Examination of Title," to distinguish it from the narrowness of view and singleness of purpose contemplated by the English methods. The English 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

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