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of the deeds of his chain of title, they will be protected in the purchase.
SECTION 36. FLAWS IN THE TITLE. The term "flaw” is used to describe an apparent gap or break in the chain of title, which, when occurring constitutes in many cases an unsurmountable impediment. A requisition must in such case be made for the missing links, whether the interruption be partial, as where one of several persons shown to possess a unity of interest fails to convey, or entire, as where no privity of title is shown to exist between present claimants and past owners. Where the original title fails, and requisitions for the purpose of showing connection are returned unsatisfied, the title asserted becomes adverse to the original title and necessarily inquiries in pais must be made to show an indefeasible title by adverse possession.
An apparent break in the chain often occurs in the case of descents, the estate of the intestate never having been settled in probate; and when the only heirs are married women, and conveyance is subsequently made by them, if no description of the person or of the capacity in which they grant is given, the break, upon the record, will, of course, be complete. When a grantee under an unrecorded land contract has gone into possession, but no deed has ever been made, the same state of facts will exist in respect to conveyances by him. Again, and these cases are by no means uncommon, simple or ignorant people frequently go into possession under deeds which they never cause to be recorded, and this apparently breaks the continuity of interest and title. Requisitions, in many instances, will suffice to discover the missing evidence,
but when this cannot be found, possession and claim of title under the statute of limitations must be relied
A serious defect of the character under consideration will frequently be found at the very initiation of title, the abstract showing only the original entry at the government land office, supplemented, possibly, by the local record of the Receiver's duplicate receipt. Now, it is immaterial how long the premises may have remained in private occupancy, nor through how many hands it may have passed; the title, in such a case, is only an equity, for no limitation runs against the government. Yet, such defects are very common. From a very early day in the history of the public land system, settlers and purchasers seem to have been strangely indifferent in the matter of securing possession of the government patents for their lands, and in hundreds of thousands of instances the foundation of title, as exhibited by local records, to lands purchased from the government, some of them of vast present value, is merely the duplicate receipt above alluded to. Probably, this indifference has arisen chiefly from ignorance on the part of purchasers that a patent constitutes the only positive evidence of the transfer of title from the government to the individual, but whatever may be the cause the fact exists,88 and this vital link, showng the original derivation of title, should be restored whenever it is found to be wanting: 84 83 It would seem from the report
150,000,000 acres, of the Commissioner of the
proportion of which were lands General Land Office for the
purchased from the governyear 1875, that at that time
ment more than half a century there were remaining in the
before, lying in the older states files of the general and locai
of Ohio, Indiana, Illinois, etc. land office nearly two millions 84 The initial statements taken of uncalled for patents, cover
from the government Tract ing probably not less than
Book will always furnish a clue
SECTION 37. CLOUDS UPON TITLE. Frequently the examination of an abstract will disclose minor defects, imperfect descriptions, invalid instruments, and abortive attempts at conveyance, which, while not reaching the merits of the title, nor yet, in many cases, casting any suspicion upon it, still tend in a measure to obscure it. These defects are generally known as “clouds upon the title.”
As a general rule, a deed, lien, charge or incumbrance of any kind, to cast a shadow upon title so as to give the owner relief in equity, must be one that is regular and valid on its face, but is, in fact, irregular and void from causes or circumstances that have to be proved by extrinsic evidence. If the invalidity plainly appears on the face of the instrument, or, although not apparent on the writing, if it is shown by any of the preliminaries that attend it, or in any of the links which connect it with the title, so that no lapse of time or change of circumstances can weaken the means of defense, such an instrument does not, in any just sense, even cast a cloud upon the title or diminish the security of the owner of the land. The rule in such cases is, that an instrument of this character can work no mischief, and hence, no occasion arises for equitable interference for its removal or cancellation.
SECTION 38. INQUIRIES IN PAIS. Technically, when an attorney is called to pass the title to land under a given state of facts as presented by an abstract, he is not presumed or supposed to extend his investigations beyond what is directly to a break of this kind, and a
Land Office by any person certified copy of the patent can
showing himself to be entitled be obtained from the General
or inferentially disclosed therein. The absence of requisite links in the chain of title calls for inquiries respecting same, but the existence of unrecorded evidence, or of equities not apparent or fairly deducible, do not properly come within the province of an examining counsel.
It is, however, strongly recommended, that in addition to the inquiries and requisitions made during the perusal of an abstract, and which are raised by disclosures made therein, a further inquiry be directed to the present possession and occupation of the land under examination. A long series of adjudicated cases confirms the doctrine that open and exclusive possession of land affords notice of the claim of the person so in possession, 85 and a purchaser of land at the time adversely held by another who does not inquire of the party in possession as to his title or right of occupancy,
will not be considered a bona fide purchaser, notwithstanding he may have examined the registry of titles. A purchaser of land who examines the records is protected by them so far as they can protect him, but he necessarily takes the risk of having the actual state of the title correspond with that which appears of record. The registration laws are designed only to protect purchasers against latent equities; hence, unrecorded deeds are void as against subsequent purchasers without notice, but a purchaser from the record owner is bound to notice the possession of another, and takes subject to the right indicated by such possession.87 86 Redden vs. Miller, 65 Ill., 336;
Warren vs. Richmond, 53 III., Hackett vs. Callender, 32 Vt.,
87 Pinney vs. Fellows, 51 Vt., 525; law and in equity; Griswold
Perkins vs. Swank, 43 Miss., vs. Smith, 10 Vt., 454.
349; Happin vs. Doty, 25 Wis., BO Russell vs. Sweezy, 22 Mich., 235;
97; the rule is the same both at
In any event, the safe course is to make the inquiry, for the law will not extend its protection to those who through negligence or inattention suffer an advantage to be taken of their credulity, nor will it afford relief to those who neglect to examine and by personal observation ascertain the knowledge of those facts of which they are presumed to be conversant.
An actual inspection of the premises should also be had for the express purpose of ascertaining whether there are any servitudes resting upon the land that have not been disclosed by the abstract. It is true that, as a rule, a claim for an easement must be founded upon a grant by deed, yet an easement may pass by implication, when its existence is necessary to the enjoyment of that which is expressly granted or reserved. This is well illustrated in the rule of the common law which provides that where the owner of two heritages, or of one heritage of several parts, has arranged and adapted them so that one derives a benefit or advantage from the other of a continuous and obvious character, and then sells one of them without making mention of these incidental advantages or burdens of one in respect of the other, there is, in the silence of the parties, an implied understanding and agreement that the advantages and burdens, respectively, shall continue as before the separation of the title.88
But in order that an easement should pass by implication, under the grant of an estate, it must be obvious to any observer, while an apparent sign of servitude must be impressed upon the servient estate;
88 Morrison vs. King, 62 III., 30; Lamp
man vs. Milsk, 12 N. Y., 505.