« PrejšnjaNaprej »
SECTION 32. AGREEMENTS FOR CONVEYANCE.
and contracts, or agreements to deed, are of frequent occurrence on the records, and occasionally bonds for the same purpose will be found, though these latter are now practically obsolete. Should the contract he executory its contents should be set forth with considerable minuteness, particularly such portions as relate to the parties, the subject matter and the conditions of conveyance. If, on the other hand, the contract has been consummated by deed, a passing allusion to it, as a part of the chain of title, will be sufficient. Where the subsequent deeds do not show a substantial compliance with the agreement a full synopsis may become material, but the general rule is that the acceptance of a deed ordinarily merges any provisions of the contract which are different from the deed.74
The effect of a valid contract for the conveyance of land, is to vest in the vendee the equitable estate, leaving the legal title in the vendor as a mere lien or security for the unpaid purchase money.
.75 The vendor, in such a case, is simply a trustee having an interest in the proceeds but not in the land, and this interest, upon his decease, would pass to his personal representative and not to his heirs. The heirs would, it is true, take the legal title by descent, but only as it was vested in the ancestor, which was as a mere security for
debt. The debt being due to the administrators of the vendor, and the lien being considered as held by the
74 Davenport vs. Whisler, 46 Iowa,
287; Jones vs. Wood, 16 Pa. St., 25. This is the accepted doctrine, yet it is subject to large qualification. The actual contract, as shown by the agreement, will still be compe
tent where through fraud, inadvertence, or mistake, a different deed has been delivered. Snell
vs. Insurance Co., 98 U. S., 85. • Reed vs. Lukens, 44 Pa. St., 200;
Cary vs. Whitney, 48 Me., 516
heirs in trust, and simply as a pledge or security for its payment, on payment of the debt the heirs would be compellable in equity to execute the trust by the conveyance of the title, while the purchase money would go to the personal representatives.
No special form is required as an evidence of a contract of sale and the courts seem inclined to allow a wide latitude in this respect. If the terms of the contract, the consideration, the subject-matter of the sale, etc., are stated with reasonable certainty the memorandum is sufficient. Form is not important, nor need it be under seal, the one indispensable requisite being, that it be in writing and signed by the vendor or his agent.
Agreements for conveyance which do not contemplate an immediate sale are mainly resorted to by two classes: the one where, by reason of financial inability, no immediate consummation of the contract can be effected; the other, where parties desire to control the disposition of property for a limited time while awaiting other developments. In each case forfeitures often occur. Much stress is often placed by counsel upon the fact of unfulfilled contracts of sale appearing in the chain of title, and objections of a serious nature are frequently founded upon them, yet, as a rule, they are formidable only in appearance. Where a contract for the sale of land provides that if the purchaser fails to perform any of his covenants the vendor shall have the right to declare the contract null and void, a subsequent sale by such vendor to another party for a valuable consideration, after the time fixed for performance, is, in effect, a declaration of forfeiture of the purchaser's contract.** * Streeper vs. Williams, 48 Pa. St.,
364; Cummings vs. Rogers, 36 450; Grey vs. Tubbs, 43 Cal.,
Subsequent purchasers of land, in the absence of express notice of latent equities in others than their grantors, can only be affected by such legal consequences as may be fairly drawn from the record itself; and when the record shows that the claim of a prior purchaser has been cut off and defeated by a sale or foreclosure, or by a forfeiture of his contract, such subsequent purchasers will have a right to rely on what is thus disclosed.??
An unfulfilled contract of recent date, however, should always be closely scrutinized and the fact of forfeiture clearly established, for it must be remembered that a vendor in such a contract can do no act in derogation of his vendee's title when such vendee is not in default. Therefore, should the vendor convey to others while such contract is still subsisting, all persons who claim any interest in the land, with notice of the contract, will be held to perform such contract to the same extent that the original vendor would be bound if he had retained the title.
SECTION 33. LEASES.
A lease is a contract for the possession and profits of land on the one side, and a recompense of rent on the other. The estate or interest conveyed by a lease is personal in its nature, whatever may be the duration of the term, and falling below the character and dignity of a freehold, it is usually regarded as a chattel interest.
Where a lease is found upon the records which has expired by its own limitation it may be passed without notice. It can in no way affect the title; is 17 Warren vs. Richmond, 53 Ill., 54;
Warder vs. Cornell, 105 Ill.,169.
not a charge or .ncumbrance, nor is it even a cloud. Hence, it
may with propriety be disregarded unless followed by a subsequent renewal. When for a short or almost expired term it may be shown briefly, as it is a charge upon the fee, but when for a long term of years it should be shown fully and succinctly. When for ninety-nine years or longer, it has much of the dignity and many of the attributes of a conveyance of the fee and requires corresponding treatment. When shown fully the examiner should observe the names of the parties as in case of deeds; the dates; the description; the term; the rent reserved; the general and special covenants; the conditions and restrictions, and the special agreements, if any. The execution and authentication should comply with the statute.
Whenever a lease is of sufficient importance to show in extenso the entire instrument should be carefully perused by the examiner and the covenants and conditions critically observed. The aid of an experienced conveyancer is frequently dispensed with in preparing instruments of this character; printed forms are generally employed, and, when they are not attainable, copies are made from books of forms and old instruments. In this way covenants are created without being well understood, and which frequently astonish the parties to be bound when occasion arises which calls for the performance of them.
The covenants of leases are usually protected by a condition avoiding the estate and working forfeiture in case of breach, and this condition, which is of the essence of the lease, must always be noticed at such length as its importance seems to demand.
It is not uncommon for the landlord to give the tenant, by an agreement in his lease, an option to purchase the demised premises, and whenever such agreements are inserted they should be displayed in the abstract.
SECTION 34. MISCELLANEOUS EVIDENCE.
There is a variety of instruments which do not rise to the dignity of deeds, but which yet have a direct bearing upon the question of title, and which must be included in all properly prepared abstracts whenever they appear upon the records during the period covered by the search. Of this nature are affidavits, letters, municipal ordinances, etc., all of which are proper, and, under certain conditions, competent evidence, in support of the facts presented.
Without entering into a discussion of the nature, requisites and validity of ordinances, which, as a rule, must be determined by reference to the charter of the municipality, it may be stated generally, that such ordinances must be adopted by the proper body and be published in the manner provided by law, the practical operation of an ordinance dating from its passage and publication. When so passed and published ordinances afford constructive notice to all persons bound to take notice of them.
The only occasions when it will be necessary to show the acts of municipal bodies, will be in respect to the opening or vacation of streets and alleys, with an occasional conveyance of municipal real estate, which latter event should be prefaced by a synopsis of the ordinance or resolution authorizing same. Being in the nature of public laws no record of municipal acts is required in the registry of deeds, and recourse must usually be had to the corporate records.
Certificates of officers having the legal custody or