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and confers no rights on the pruchaser. In judicial sales a confirmation is rendered necessary from the fact that the court, and not the officer making the sale, is regarded as the vendor, and confirmation constitutes the final consent. 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 made the subject of proper inquiry.
Deeds do not issue immediately upon execution sales, and in most 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, etc., and a certificate stating the facts is issued to the purchaser at the time of sale. A duplicate of this certificate is recorded by the selling officer in the registry of deeds, and the certificate, duplicate, or the record thereof, is by law made evidence of the facts therein stated. In case of redemption a certificate of redemption is issued and recorded in the same manner.
The certificate of sale confers on the holder no title or interest in the land, especially where the time for redemption has not expired, and the possession of the defendant in execution cannot be disturbed until his title has been transferred by the officer's deed. After the execution of deed the certificate ceases to be an essential muniment of title.
SECTION 28. ACTIONS AND PROCEEDINGS.
In the compilation of abstracts it is frequently necessary to show certain classes of actions in the courts that operate directly upon the title to land and culminate in what are known as judgments in rem. The actions and proceedings that call for special notice on the part of a person examining title, are such as relate to the recovery of specific real property, or the possession thereof, called ejectment; actions and proceedings for partition; foreclosure of liens and mortgages; bills to quiet title; actions brought to enforce the specific performance of land contracts; proceedings under the right of eminent domain; suits for dower; and incidentally such bills, actions or proceedings as from their nature may operate as lis pendens. All the proceedings specially enumerated should be stated in the abstract with a reasonable degree of detail. The decree entered in these matters, when followed by deed, is the foundation for such deed, and of equal dignity with it, while the anterior proceedings go to establish the validity of the decree. In addition to those matters of exclusive cognizance in the circuit court, the examiner should also show all proceedings in the county (probate) court that incidentally affect title by reason of the relation of the parties to the subject-matter. In this way proceedings relative to adoption, guardianship, etc., will frequently appear as well as assignments of dower and homestead.
The validity of all decrees, as well as sales and conveyances that may result therefrom, depends upon the jurisdiction of the court, and this has reference both to the parties and to the subject matter. Both of these particulars must satisfactorily appear in the abstract, and are shown, in the one case by the return of the summons, the method of service being given where greater certainty is desired, and in the other by a synopsis of the bill and other pleadings. Where it appears from the whole record that the court had * Campbell vs. McCahan, 41 III., 45.
no jurisdiction over the person or subject-matter the judgment or decree is void. On the other hand, if the court had cognizance of the matter as it appears from the pleadings, and had the parties before it, then the judgment or decree which is authorized by the pleadings is valid until set aside or reversed on appeal.
The reason why these matters are shown in abstracts of title is because of the rule in equity that purchasers are directly affected by every matter or circumstance concerning the title to the property they take, which affirmatively appears from the pleadings or decrees of courts of competent jurisdiction, in actions relating to such property, whether such purchasers have actual notice or not. It is the application of this doctrine which renders necessary a searching investigation of the court rolls whenever real property is sold, for every man is presumed to be cognizant of what transpires in the courts of justice, and the law will charge him with actual notice of whatever there occurs, which affects the merits of the title he would take.62
In preparing minutes of equitable actions involving title much nice discrimination is necessary in order that the abstract may show a perfect resume of the proceedings and of all the material points presented, and yet not become unwieldly. The name of the court in which the action is prosecuted; the title of the cause; case number, and date of commencement of the action come first, and in the order indicated. Then follows a brief statement of the material parts of the bill, with all repetitions and surplusage eliminated. The subsequent steps next follow in chronological sequence down to the final determination or decree, which is usually shown in full.
01 Leitch vs. Wells, 48 N. Y., 585;
Jackson vs. Warren, 32 ni.,
es Fissler's Appe 1, 75 Pa. St., 483;
Loomis vs. Riley, 24 II., 307.
Of the various actions and proceedings to be noticed, but little can be said within the narrow confines of this article. A few of the most important will be briefly noticed :
Injunctions are rarely shown in abstracts of title, and when shown have reference usually to transitory matters which affect title only incidentally, being connected rather with the use and occupation of the land, than with any matter that goes to the title. Perpetual injunctions, when relating to matters which directly concern title, become permanent muniments, and, of course, must be regularly shown in connection with the enjoined matter. This will be the case in respect to rights of way appurtent to land; of deeds declared to be void, when attempted to be used as evidence of title; and of judgments which have become invalidated from any reason. A perpetual injunction to quiet title will sometimes lie when there has been no trial at law, as when the party having possession has been disturbed but not so dispossessed as to make it the subject of an action at law.
Ejectment is an action to recover the possession of land and incidentally to determine the title. It can be brought only by a person out of possession against the person in possession of the premises, if they are occupied, or against one claiming title if they are vacant or unoccupied. It is used not only to determine title of parties claiming from the same source, but also to settle conflicting adverse titles derived from independent sources. Inasmuch as the judgment is conclusive on the rights of the parties to
the subject-matter of the action and all persons claiming by, 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 disposition, which may all be easily accomplished by a full synopsis of the pleadings, the verdict, and the judgment rendered thereon.
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 proceedings should show affirmatively a full statutory compliance. The procedure is substantially the same in all the states, making due allowances for minor differences of practice, and involves the presentation of the case 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 property to partition; the report of the commissioners, and confirmation or final decree. All of the foregoing steps are essential, and form regular links in the chain of title.
Equity will enforce specific performance of agreements relating to lands. They assume a large variety of forms, but the action occurs most frequently in attempts to enforce conveyance of lands purchased or agreed to be sold. In such cases, where performance has been decreed and consummated, a rather full synopsis should 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, a brief notice of same and the action had thereon may be shown as an appendix.