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supervision of records, as well as of ministerial officers in the performance of some legal duty, are of frequent occurrence. Usually they are appended to some kind of documentary evidence to which they have special relation, but they may be used as affirmative and independent proof of matters within the certifying officer's jurisdiction. Instances are afforded by the certificates of levy, attachment, etc., made by officers executing the process of courts and which afford internal evidence of the matters therein recited.
Aside from the certificates of officers, and others, reciting their own acts in connection with some particular proceeding in the line of their official duty, there is a class of official custodians who certify from the books, records, files, etc., committed to their care, and to whose certificates, under their official seal, if they have any, the statute in some cases and comity in others, attaches a certain degree of evidentiary value.
Certificates attached to other documents for the purpose of proof or verification do not, as a rule, require extended notice, but when standing alone, and as affirmative evidence of some particular fact, they acquire a certain dignity that calls for commensurate treatment. When these certificates, for instance, allude to facts which appear from the books, files and records of the officers of State in regard to the transfer of land by, or to the government, either Federal or State, or by the State to individuals, the original evidence of which is not accessible, or has been destroyed, or lost, they become of the highest importance and should be shown in detail.
In the compilation of English abstracts the general subject "incorporal hereditaments' plays a con
spicuous part, but in the United States this term is now rarely employed, while the number of strictly incorporal hereditaments is very small. In this country they are usually such things as come within the definitions and general doctrines of easements and servitudes.
An easement is technically understood to be raised or created by a grant, but may be reserved in a conveyance as effectually as by a grant by deed. Separate instruments are seldom employed to create easements, but occasionally grants of rights of way will be found as well as instruments granting riparian rights, and in all cases, where such instruments are matters of record, purchasers of land affected thereby will take the premises subject to whatever rights they may confer upon others and burdened with the stipulated service.?
In populous localities, party wall agreements are of frequent occurrence, and, though not technically conveyances of land, their legal effect is to give to each of the parties an easement on the other's land, which becomes appurtenant to their several estates and passes to their respective assignees by any mode of conveyance that may be effectual to transfer the land itself.
For a large variety of matters relating to interests in land and sales and conveyances of such interests, which by law are not required to be under seal or attested by any solemnity, epistolary correspondence, notes and memoranda, are competent evidence. This is particularly the case in regard to trusts, agreements 78 The principal incorporeal here
mons, rights of way, of light, ditaments according to the
wood, water, rents and annucommon law, are: Advowsons and next presentations, tithes, manors, franchises, offices, com- 70 Turpin vs. R. R. Co., 105 II., 11.
ities. Most of them are unknown in the United States.
and conditions of sale, and sometimes in supplying missing information relative to descents, etc. Hence, it is not uncommon to find letters of record relating to, or concerning interests in land. A contract for the sale of land made by letter correspondence between the parties is valid and will be enforced, if the consideration to be paid, the time of payment, and the description of the property appear sufficiently certain to enable a court to make a decree. So, too, where a person acquires title to land in trust for another and writes him a letter clearly showing that he holds the same in trust, this will be sufficient to manifest the trust as required by the statute of frauds.
In abstracting the proceedings of courts, in matters relating to title, affidavits will occasionally be met with, but as a rule, they are of such a nature that their contents are immaterial to the examination, and they may be disposed of in a single line and frequently passed without notice. There is, however, another class of affidavits, resorted to by conveyancers under a choice of difficulties, which frequently figure on the records and in the abstract. These are the ex parte sworn statements of individuals respecting some question raised by the examination, usually relating to deaths, marriages, births, etc., concerning which no other or better evidence can be found. Family records are not universal, nor even where, as is the custom of many states, a record of births, deaths and marriages is kept by proper officers, can the requisite information be always obtained. When such is the case resort must be had to the next best and most available testimony which is usually supplied by the affidavit of some person setting forth his knowledge of the matter under inquiry. Such instrument, it is true, possesses no legal validity, and not being made under the sanction of a court or in any legal proceeding, is not strictly evidence for any purpose; yet, being all that can be adduced, it has been, as it were, by common consent, adopted as evidence in the examination of titles and the testimony taken as corroborative of general reputation, concurrent possession, etc. Such affidavits, though possessing no legal efficacy, should yet be attended with the same solemnities and formalities as are required in affidavits for use in court.
SECTION 35. WHAT TITLE SHOULD BE SHOWN.
In the absence of any stipulations to the contrary, the vendor, in every contract of sale, impliedly undertakes to furnish to the purchaser a marketable title. What is meant by the expression marketable title”? It
may be briefly stated in answer, that the title disclosed should extend to show a full and perfect right to property and present possession vested in the vendor. It must also embrace the entire estate or interest sold, and that free from the lien of all burdens, charges, or incumbrances, and should not only be free from litigation, but from palpable defects and grave doubts.80 It should consist of both the legal and equitable titles, and be fairly deducible of record. It may still be a valid title, even though charged with incumbrances. The terms of the contract of sale will, in most instances, determine the question of title when raised, but ordinarily, while a purchaser will not be compelled to accept a title palpably defective, he cannot justify his refusal to accept by mere captious objections, nor is it sufficient for him, when the juris80 Smith vs. Robertson, 23 Ala.
Fla., 390; Scott vs. Simpson, 312; Holland vs. Holmes, 14
11 Heisk. (Tenn.), 310.
diction of a court is invoked to compel him to perform his contract, merely to raise a doubt.
A defect in a record title, will, under most circumstances, furnish a defense to a purchaser, particularly where it affects the value of the property or would interfere with its sale, and thus render it unmarketable, but there is no inflexible rule, in the absence of stipulations to the contrary, that a vendor must furnish a perfect title of record, and it has frequently been held that defect in the record or paper title may be removed by parol evidence.81 Where, however, the title depends upon a matter of fact which is not capable of satisfactory proof, or, if capable of that proof, yet is not so proved, the title is not marketable and the purchaser is not obliged to take it.
A title, to be marketable, need not necessarily be deducible of record, for a prescriptive title may, under proper conditions, be as strong a title by grant,82 yet such titles, unless there has been a continuous holding for at least twenty years, are always liable to defeat from undisclosed defects, and even after the expiration of such period they may still be open to attack through claims by minor heirs or persons under disability.
Again, a valid title, as is self evident, should be free from latent defects or taint of fraud; yet this is something that, from its very nature, must frequently pass undetected, even by the exercise of the greatest prudence. As a rule, however, where the legal title is vested in the vendor, and there is nothing appearing from which purchasers can know that there has been any fraud in his acquisition of title, or any invalidity
3 Hellreigel vs. Manning, 97 N. Y.,
82 McNab vs. Young, 81 II., 11.