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tions annexed to the grant, or restraint upon the use or enjoyment of the land must further be observed, and where covenants are inserted in a deed of this kind it is always well to exhibit them.
Conveyances subject to incumbrance require special care in abstracting, and all clauses relating to subsisting claims should be set forth fully. This is necessary from the fact that a purchaser is charged with notice of all recitals of this character, and is bound thereby, even though the incumbrance fails to appear of record. Though the conveyance of land subject to mortgage, unless expressly so provided, imposes no personal liability on the grantee, it yet raises a presumption that the purchaser buys the property to the extent stated and takes his chances of realizing out of it enough over and above the mortgage, to indemnify him for his advance of purchase money. The fair inference is that the purchaser does not pay the vendor the full value of the property, but that the amount of the mortgage debt is reserved in his hands as so much purchase money for the purpose of discharging the lien. In such case the land conveyed is as effectually charged with the amount of the mortgage as if the purchaser had expressly assumed its payment.
SECTION 17. CORPORATE CONVEYANCES.
There are three classes of corporations 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. A corporation, however, has only such powers as its charter gives it, either expressly or as incident to its existence. It would seem, therefore, that the organic act, or some portion thereof, should supplement every conveyance purporting to pass title to a corporation, but in practice this is seldom done. As corporations are now almost universally organized under general laws which define their powers in this respect the matter presents fewer intricacies than formerly. Whenever the charter of a corporation, or the general law under which it is organized, prohibits the purchase of land for any purpose, a deed to it would be an utter nullity. But if it has the power to purchase and take, though for a specific purpose only, it becomes fully invested with title by a deed properly executed and may transfer the same to a third party, notwithstanding the property was acquired and used for a purpose forbidden by the organic act.
As a general rule, deeds to and from corporations are effective to covey the land 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. In such a case the State alone may interfere.
Deeds by a municipal corporation stand upon a somewhat different footing from those of 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 of the municipal legislature. The resolution should always appear in the abstract in connection with the deed made pursuant thereto.
The legal title to the property held by incorporated religious societies is usually vested in trustees, and conveyances by such societies are effected through the a Ward vs. Lumber Co., 70 Wis., 445.
media of these trustees. More than ordinary care should be observed in abstracting such conveyances. The method of conveyance, if pointed out or prescribed by statute, is of the essence of the deed, and where the abstract does not disclose a full statutory compliance it should be sent back to the examiner for further investigation.
CONVEYANCES BY DELEGATED AU
Every deed executed 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 affirmatively show this fact. A conveyance made by an attorney must be in the name of the principal, and purport to be executed by him, 32 and where the agent assumes either to grant or to execute, as where he signs and seals, although describing his office, the deed will be void as to the principal. Neither will signing the principal's name, but making no mention of the attorney, be a valid execution. 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 intended to be executed as the deed of the principal and that the seal affixed is his and not that of the attorney.
Immediately following the abstract of every deed purporting to have been made by the procurement of an 32 Pensonneau vs. Bleakley, 14 III.,
State vs. Jennings, 10 Ark., 15; Elwell vs. Shaw, 16 Mass.,
428; McDonald vs. Bear Rivei 42; Hale vs. Woods, 10 N. H.,
Co., 13 Cal., 235.
84 Wood vs. Goodridge, 6 Cush, W Fowler vs. Shearer, 7 Mass., 14;
attorney in fact, should appear the warrant or power which authorized the act. It is further important that sufficient evidence should always be furnished as to the continuance of the power at the time of its exercise. An unrevoked power duly recorded is sufficient as far as it goes, but unless the abstract also discloses the fact the principal was living at such time, and had not been subjected to any disability, prudence would suggest that an inquiry be made to ascertain such facts.
Trust deeds were formerly very common, but are now rarely employed, save in a few States where mortgages are made in that form. 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 permitted, every part of the instrument necessary to bring it within one of the classes named in the statute must be shown. No particular form of words is required to create a trust, the intent only being regarded by courts of equity.
SECTION 19. OFFICIAL CONVEYANCES.
Official deeds comprise all those forms of conveyance wherein the maker acts by virtue of an office and not 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, etc., and those made in a ministerial character, as the deeds of sheriffs, 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 or the court.
It is the policy of the law to invest the sheriff, master in chancery, administrator, or other officer 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 other than those imposed by law. Hence, purchasers at such sales assume the risk of title, as well as the validity of the proceedings under which the sale is made.35 Much detail will, therefore, be required in the abstract of an instrument of this character, which should show substantially all the material parts of the deed, including the recitals necessary to show a full compliance with the law, even though at times the instrument may seem to be unreasonably long.
To establish title to land under a sheriff's sale on execution all that is necessary to be shown, as a general rule, is a valid judgment, execution duly issued, and a sheriff's deed.36 But in all cases the judgment is the foundation of the title, and proof of such judgment is indispensable to its validity. Where a deed alone is relied on 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 deficiency is supplied by the writ and return.
Titles derived through trustee's deeds require close scrutiny, for where a deed of trust minutely and particularly prescribes the conditions 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 Is Bishop vs. O'Connor, 69 Ill.,
Hughes vs. Watt, 26 Ark., 228; so Riddle vs. Bush, 21 Tex., 675;
Lenox vs. Clark, 52 Mo., 115.