How known? Unfortunately, this is not always easily determined, as much
expensive litigation is continually demonstrating. There are two general
divisions of property, which we designate as real and personal.
Land is real property, or real estate. Stocks, lumber, evidences of debt,
and all that property which is classed as movable is personal estate.
Personal estate may become real estate. How? Take lumber, bricks, etc.,
which are personal property, and therewith construct a house, and locate
it, with stone or brick foundation, on your land. The personal property,
so used, merges its lesser title in that of the greater, that of the land
on which it is placed, and becomes with the land real estate, subject
to real estate law as regards taxation, transfer, and in fact every
essential feature. Whence comes the original ownership? First by right
of discovery; next by royal grant, and by purchase, and then by descent
and purchase. It is our purpose to consider this transfer by purchase.
This being accomplished through the medium of a deed, we pass on to
mention a few of its characteristics. This document is the evidence of
a sale and conveyance of certain real estate, which should therein be
accurately described. There is a recognized form of deed in general use,
which although containing a few seeming superfluous words, according
to the ideas of an occasional iconoclast, is yet safe; and this blank,
which may be purchased of publishers, is the one to use. Lack of space
will not permit an analysis of a deed, but we will endeavor to explain
its execution. The deed must be signed by the party or parties making
the sale; must be sealed, acknowledged, witnessed (this is not required
in all the states, but is generally done), delivered and recorded.
The deed should be written in ink. The writing should be plain, since
it is written to be read, a fact sometimes seemingly overlooked. The
description and all the clerical work should be completed and accurately
completed before signing, since no change is legitimate, if made after
signature has been attached. The witnesses should see the grantor sign
his name, and then sign themselves. A corporation making a transfer does
it by its president or treasurer, who signs in this way:
Cimbrian Manufacturing Company,
By James Felt,
President.
A seal (a small piece of paper attached as a wafer or sealing wax is
ordinarily used) is placed opposite the signature of the grantor, or,
if more than one name, a seal for each. After signing, sealing and
witnessing, the deed must be “acknowledged.” For this purpose the grantor
goes before a Justice of the Peace, or Notary Public, or, if the grantor
is not resident in the state where the real estate is situated, then
before a State Commissioner of Deeds, _or_ if in a foreign country, then
before a consul. These are persons qualified by appointment to the office
which they hold, to take acknowledgments. The deed is shown the officer,
to whom grantor makes the acknowledgment that the document by him signed
is his free act and deed; and by whom a certificate to that effect by
him signed, is attached to the deed. The deed being duly executed is
now delivered by the grantor to the grantee (this matter of delivery is
essential), and is by him placed upon record.
By record is meant this: Each county of the state has an office wherein
are kept the records of all the real estate conveyances of that county,
or of land situated in that county. This office opens its records to
the inspection of the public, and by the records there each real estate
owner’s title may be investigated. Between the parties to a transfer,
the deed would be sufficient evidence of such passing of title without
record, but wherever the rights of other parties might clash with such
a change of ownership, record would be absolutely necessary for the
protection of the grantee. Make it a rule, then, when right or title in
or to real estate becomes vested in you by deed, to allow no great length
of time to elapse before having records made. Since all titles are to
be established in the Registry of Deeds, it is the privilege of any one
purchasing, either to investigate the title to his proposed purchase
himself, or have some one do it for him. Whenever one wishes an agent to
make a transfer he must first authorize his agent, by giving him a power
of attorney to attend to the execution of the deed, and this power of
attorney must contain specific authority and plenary, and be executed
with the formality of a deed, and be regularly recorded.
On writing deeds remember:
That the price paid is ordinarily stated in the deed. The exact amount
need not be mentioned. It may read “In consideration of one dollar.” The
amount named is not conclusive evidence of amount paid;
That the description should be accurate. It is quite common to find very
imperfect descriptions, but this is wrong, and is the cause of much
trouble. In addition to description, refer to previous deeds, by giving
book and page; wherein recorded in the Registry of Deeds;
That a deed should describe the incumbrances, if any there be. If any
such exist, and the deed is silent regarding them, the grantor is selling
that which does not belong to him, a species of business activity which
the law does not encourage;
That, if the grantor be a married man, his wife should sign the deed,
relinquishing her interest in the property, commonly called dower;
That either a warranty or quit-claim deed transfers the owner’s entire
interest in the real estate; but while by the former the grantor warrants
the title and engages to defend the same “against the lawful claims
and demands of all persons,” by the latter he avoids all such personal
liability. Therefore if property be free from incumbrances a quit-claim
is as good as a warranty deed; notwithstanding this, a purchaser had
better insist on having the latter in every case;
That deeds should be recorded in the Registry of the county in which the
real estate is located.
MORTGAGES—Real Estate.
A mortgage is a transfer made with intent of giving mortgagee security
for money loaned or a debt in some way incurred. The mortgage is a deed
conveying to the mortgagee the owner’s title to the estate granted
in just the same way and with same formalities as a regular deed of
transfer, subject to one condition, which is, that the mortgage deed
shall be void if the amount therein specified is paid at the stated time.
After the delivery of the mortgage deed the relative standing of the
parties is this:
The mortgagee:
Unless the right is specially waived in the deed, he may enter and take
possession. He is therefore the owner subject to a condition, and has in
him the right of possession;
He may sell and assign to a third party his interest in the mortgaged
property, investing such person with all his rights therein;
When the stated time for payment, whether of principal or interest, has
elapsed, and the conditions have not been complied with, foreclosure of
mortgage may be commenced, and at the expiration of three years from
such commencement, he may take absolute possession of the estate, unless
mortgagor redeems it within that time;
He may insure mortgaged premises for his own protection.
The mortgagor:
He is not in possession of mortgaged premises by right, unless by special
permission;
He must pay all amounts designated in the mortgage deed, at the time
therein specified;
He may redeem the property at any time within three years after
commencement of foreclosure, by paying amount due; with interest and
legal costs.
He may sell his remaining interest (called equity of redemption), after
mortgage transfer, or procure other mortgages on same property.
Personal Property.
Mortgages of personal property are much more informal in their execution
than similar transfers of real estate. The transfer is a complete change
of ownership title, with similar conditional clause, relative to payment,
to that of a mortgage deed.
The several states make provisions for record of these conveyances, which
are to be observed in order to insure the proper security of mortgagee’s
title, since record has same significance with personal as with real
estate mortgage transfers.
A farther analogy may be found in the fact of a right of foreclosure and
equity of redemption.
Wills.
If at any time we were to say that “Every man his own lawyer” would be
giving to some very poor assistance, we think the suggestion would be
eminently proper here. This is not the word of discouragement, but of
caution, else the practicability of these articles, which is the theory
leading to their publication, might with propriety be questioned. There
is no department of legal work where more skill and care may be demanded
than in this. But though care is ever to be exercised, not always is
superior skill necessary, for one may desire a very simple and direct
disposition of his property, and this may be done if only the formalities
are observed, by one not conversant with the niceties of law points, and
done in such a proper and regular manner that all complications will be
avoided. But where different interests are to be carved out of an estate,
then the execution of it requires skill and experience.
Who may make a will? Any person who has attained proper age and is of
sound mind. By the old common law a married woman was not competent, but
this restriction has been removed by statutory enactment in most of the
states, and a married woman in those states is no longer forbidden the
disposition of her property in accordance with her own wishes.
Quite generally eighteen years for males and sixteen for females
are designated as proper ages. Children not mentioned in a will,
unless provided for in testator’s lifetime, are presumed to have been
accidentally omitted, and take same share of the estate as they would
if there had been no will. It will therefore be readily seen that if
omission was intentional, testator’s design would be defeated. Whenever
such omission of gift to a child is designed it should be particularly
mentioned in the will.
A codicil is simply an addition to or change in the will, and should be
attached to the original, and executed with same formalities.
In making a will be careful to observe:
That the person is of proper age and sound mind;
That all statements and declarations be made in clear, unambiguous
language, so that a misconception of it will be impossible;
That, in propriety, the word “bequeath” should be used as applied to
personal estate, and “devise” as belonging to real;
That, unless a life estate simply is intended, words of inheritance
(heirs) should be coupled with devisee’s name;
That, in most of the states, three witnesses are required. They should be
wholly disinterested, so far as having no personal interest in the will;
they should see the testator sign, and should each attach his signature
in testator’s presence, and in presence of the others;
That it is well for the testator to name an executor, although this is
not required, since in the absence of such directions the Court will
appoint an administrator.