Slike strani
[ocr errors]

mentary conveyances or descents. The records and proceedings of these courts, therefore, have a direct and important bearing on every title of long standing, and are among the muniments that go to give stability thereto, as well as security to the possession of the party asserting such title.

The ordinary proceedings of county and probate courts which have a direct influence upon land titles are: the probate of wills and issuance of letters testamentary and of administration; the inventory and collection of the effects of deceased persons; the proof of payment of debts and legacies; the assignment of dower and homesteads; the sale of lands by executors and administrators; the distribution and partition of the estates of deceased persons; and, incidentally, of proceedings relative to guardians and wards, adoption, etc.

SECTION 22. DESCENTS. 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 practical purposes 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.43 Whenever the death of any person is shown, until rebutted, the presumption is that he died intestate, that is, without having made a will, and that his heirs take his estate under the laws of descent. 2 Black, Com., 201; Warvelle, Real Prop.,

144; Moore vs. Chandler, 59 II.,


Under the English system of abstracting, a descent is shown by a pedigree, supported by certificates of births, deaths and marriages, inserted in the order of their date. 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 evidence 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 required in compiling an abstract, and examiners, as a rule, do not attempt to introduce them.

The usual method of showing a descent in the United States is by an abstract of the settlement of the decedent's estate. This should disclose 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, payment of claims, and final report and discharge of the administrator should also be shown.

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 property is valuable this step should always be taken.

It is competent for all the heirs to an estate, if of age, to settle and pay the debts of the estate and to make partition of the property among themselves, without any administration; and neither creditors nor debtors of the estate have a right to complain. Few titles, however, 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 person last seized, in the absence of full compliance with prescribed regulations concerning the descent and distribution of intestate estates. A title resting on no better foundation than a 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 cognizant of the facts, that all the heirs have united in the conveyance, or that they are qualified to convey; or that a widow's dower may not greatly depreciate the value of the property thus acquired. Sometimes, in a case of this kind, affidavits are resorted to to prove heirship, death of ancestor, etc., in which event they should be well authenticated as well as positive in their averments. But however well framed they may be they afford evidence of the lowest order only. SECTION 23. LIENS, CHARGES AND INCUMBRANCES.

A lien is a hold or charge which one person has upon the property of another as a security for some debt or charge, and in its broad sense would cover all burdens, charges or incumbrances placed on land, including mortgages, judgments, taxes, etc., as well as

Vol. VI.-13.

common law and statutory liens, and liens arising by implication of law. In its more restricted signification it is used to denote certain preferred or privileged claims given by statute or arising by implication of law, and indicates a mere right to hold the property until the claim has been satisfied. Even in this latter sense, as it is now employed in conveyancing and the compilation of abstracts, its popular meaning confines it to certain classes enumerated by statute; as the lien of mechanics and material men, attachment, etc., and to liens arising by operation of law, as decedent's debts, purchase money liens, etc.

Liens upon lands are created by the statute, to secure the payment of taxes, and other public debts; to protect estates raised out of or incident to the marriage relation; to effectuate the judgments of courts by allowing the land of the defendant to be taken in execution as well as to anticipate such judgments by way of attachment and lis pendens; to secure the payment of the debts of deceased persons, and to secure the wages of laborers and mechanics. They are also created by the direct act of the parties, as by leases, mortgages, etc., and arise in a number of cases by operation of law, as to secure unpaid purchase money, etc., these latter being known as equitable liens. Intending purchasers are chargeable with notice of all statutory liens, the provisions of the statute having been substantially complied with, but will take the land, where the sale is made in good faith and for value, freed from the burden of equitable liens of which they had no notice.

In the preparation of abstracts of title, liens, charges and incumbrances of every kind, with but one exception, are shown, not in the regular course of title, but in appendices to same, and, for better convenience, under classified heads. The exception is in the case of mortgages, which, following the custom which prevailed when such instruments were regarded as conveyances of the legal estate, are shown in regular chronological order in the chain.

SECTION 24. LIS PENDENS. A pending suit involving title conveys notice to intending purchasers, and charges the land, in whosesoever hands it may be, with the consequences of whatever decree may be made. This is known technically, as lis pendens. The doctrine of lis pendens is, that a purchase of property actually in litigation, or, as the technical phrase runs, a purchase pendente lite, although for a valuable consideration and without any actual notice, affects the purchaser in the same manner as if he had such notice, and he will accordingly be bound by the judgment or decree rendered in the suit.

The doctrine of lis pendens applies only where a third person attempts to intrude into a controversy by acquiring an interest in the subject-matter of the litigation. The reason of the rule is, that if a transfer of interest pending suit were to be allowed to affect the proceedings, there would be no end to litigation; for as soon as a new party was brought in he might transfer to another, and render it necessary to bring that other before the Court, so that a suit might be interminable.

It will be understood, however, that the rule, that a party purchasing pendente lite is to be regarded as a purchaser with notice, subject to all the equities of the person under whom he claims, and bound by the decree that may be rendered against the person from whom he derives title, applies only to cases in which

« PrejšnjaNaprej »