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Formerly, all the grantors acknowledged the deed; and this continues to be usual in most places, and is the safest practice. But, in some places, it is now sufficient in law, if either of the grantors acknowledge it.
In many States, if a wife, separately or joining with her husband, conveys away her land, a particular form and mode of acknowledgment is required, in order to ascertain that she does it of her own free will; and any such directions or requirements should be followed with great care. The Forms added to this chapter will show how this is done.
An attorney, A B, who executes a deed for another, CD, should acknowledge it as "the free act and deed of the said C, D," and not as his own.
The justice taking the acknowledgment must be careful to state it in his certificate, exactly as it was made before him.
In some of our States, recent laws have in effect required the assent of the wife to a transfer of the husband's real estate. not merely to convey her dower, but to pass the property to the grantee. We do not enumerate or specify these States here; having given previously an abstract of the law of husband and wife in all the States.
In all our States, we have the excellent system of registering for recording, as it is more frequently called) all deeds of land in he public registers of the county in which the land lies. This was adopted for the purpose of giving certainty and notoriety to title, and it works admirably well. The investigation of title is usually easy to those accustomed to this mode; and every purchaser of land should ascertain that the deed will give him good title before he takes it.
The law generally requires that a deed of lands should be acknowledged and recorded, to have full effect; but judicial decisions have everywhere qualified the force of these words, and in some instances the language of the statutes varies. But the rules of law in reference to the recording are quite uniform in all the States, and are as follows:
In the first place, every acknowledged deed is considered as recorded as soon as it is in the hands of the recording officer; and therefore he generally minutes upon it the day, hour, and
minute when it was received by him. This may be very import. ant; for if A makes his deed and delivers it to B, who presents it for record at five minutes past noon, and C, a creditor of A, attaches the same estate at four minutes past noon of the same day, the grantee loses the land and the creditor gets it; but the grantee saves it, if he presents it to the office three minutes and fifty seconds after noon.
In the next place, as the purpose of public registration is general notoriety, a deed is perfectly good without record against the grantor himself and his heirs, because the grantor himself could not but know of the deed, and, as all title passed out of hi n by it, his heirs could take none from him.
And finally, a deed not recorded is just as good as if it had been recorded, against any parties, or the heirs of any parties, who took the land from the grantor by a subsequent deed, even for a full price, if they had at the time notice or knowledge of the prior and unrecorded deed. Many wise persons have doubted the expediency of this last rule, because it tends to raise troublesome questions, and to make grantees careless about recording their deeds. But the rule itself is universally and firmly established, and in some statutes requiring record this exception is expressed.
A deed should be dated; but, if it have no date, it will take effect from delivery. Any erasures or alterations should be noticed and stated above the names of the witnesses, as having been made before the execution of the instrument. Any mate rial alteration by a grantee, or by his procurement, makes the deed void in most cases, so far as he is concerned.
It is usual, and therefore proper, to name executors, admin. istrators, etc., as in the forms appended; but, generally, the rights and obligations of the deceased fall by law on their legal representatives.
THE USUAL CLAUSES IN DEEDS.
It is customary to recite in all deeds the consideration on which thev are made. This is usually the price paid for them. Sometimes it is this price in part, and other things in part.
Sometimes there is no price paid, the land being either a gift, or conveyed for other considerations. In the great majority of deeds, the language used is, “in consideration of (so much money) paid me by the said (grantee), the receipt whereof I acknowledge." Or it is, “in consideration of one dollar paid me, the receipt of which I acknowledge, and divers other considerations ;” or, “in consideration of one dollar to me paid, the receipt of which I acknowledge, and of the love and good, will I bear to the said (grantee)." It is always customary, although not necessary to put in “one dollar,” or some other nominal sum, although no price is paid.
Although the price is inserted, and the receipt thereof be acknowledged, the seller is not bound by his receipt. It is a general rule, as has been stated, that all written receipts of money are open to evidence, as written contracts generally are diot. Under this rule, the seller may sue for the whole or any part of the money of which he has acknowledged the receipt, if he can prove that the money he demands has not been paid to him. He cannot, however, say that the money has not been paid, and therefore the deed is void, and the land has not passed t- the grantee. For only that part of the deed which is a receipt is open to denial or evidence.
Of the words of conveyance, which are usually “give, grant, sell, and convey,” it needs only be said, that it is best to use them, because it is usual, but that other words, or these with some change, would be sufficient in law.
The description of the land should be minute and accurate, to an extreme degree. In this country, it is customary and well to refer to the previous deeds by which the grantor obtained his title. This is done by describing them by their parties, date, and book and page of registry. It may be well to remark, that a deed referred to in a deed becomes, for most purposes in law a part of the deed referring.
By the law of England and of America, if land is conveyed by deed to “A B,” the grantee takes it for his life only. Nor will he take it in full property (or, to use the technical law-term, in fee simple), that is, with full power of disposing of it during his life or at his death, with a right on the part of his heirs to it if
he does not dispose of it, unless it is given to “A B and his heirs." These last words, which are commonly called words of inheritance, must always be added; for although there are some qualifications to this rule, which might help those who take such a deed inadvertently, there are none to which it would be safe to trust.
The deed is terminated by this clause of execution : “In witness whereof, I, the said A B, on the day of — in the year have hereunto set my hand and seal,” or “subscribed (or written) my name and affixed my seal.” And there should be no departure from this, although an exact adherence to this formula may not be necessary to the validity of the deed. This clause is often called the “In Testimonium clause."
If the deed contains nothing but what has now been said, it will convey the land, or all the right, title, and interest in and to the land, possessed by the grantor. But it is only what is caled a quitclaim deed. That is, it is not a warranty deed. These phrases, which are in common use, explain themselves. Originally, a quitclaim deed was intended, and indeed operated, only where the grantee already held possession of the land, or some title to it, and the grantor intended to renounce all his right or title in favor of the grantee. But it was soon used where a man intended to sell and convey land, but not to give any warranty. And now, because there is some question, in some of our States, as to the effect of the words “give, grant, sel, and convey,” although there be no express warranty in the deed, it is best, and it is usual, when only a quitclaim is intended, without any warranty whatever, to substitute for the words of conveyance above mentioned the words "grant and quitclaim,' or, more accurately, “release and quitclaim.” Then, if the grantee afterwards loses the land because the grantor had no title to it, the grantor is nevertheless under no responsibility, provided the transaction was an honest one on his part.
All purchasers, therefore, desire to have a warranty deed if they can get one. And a deed becomes a warranty deed, when clauses like those which follow are inserted just before the clause of execution :
“And I, the said A B (the grantor), for myself, my heirs,
executors, and administrators, do covenant with the said CD (the grantee), his heirs and assigns, that I am lawfully seized in fee of the aforegranted premises; that they are free from all incumbrances; that I have good right to sell and convey the same to the said C D as aforesaid ; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said C D, his heirs and assigns forever, against the lawful claims and demands of all persons.
It will be noticed that this paragraph contains four different agreements or warranties,-covenants the law calls them. The cases are multitudinous, and the law excessively nice, as to their exact meaning and operation. None of this technical learning is it worth while to spread before the general reader. But the general purpose and effect of all of them together should be stated. It is, that if “the said CD,” that is, the grantee, or his heirs or assigns, are turned out of that estate (ousted or evicted, the law says), on the ground that the grantor had no title, or an incumbered title, and could not convey any good and clear title, he or they may fall back on the grantor or his heirs, and demand damages for the loss of the land.
It is a question how much damage a grantee thus ousted shall recover. In most of our States, it seems to be the money paid for it, with interest (deducting rents and profits), and the legal costs and charges (not including counsel fees) for defending against the suit which has ousted him from the land, anıl no more.
But in other States, as generally in New England, the party ousted recovers the actual value of the land, with his improvements, which he loses by the defect of the grantor's title; although this may be much more than he paid for it. It is not, however, settled uniformly what the measure of damages is.
In forms of deeds there is usually a blank of a few lines left after the words “incumbrances;" and this is intended for the insertion of any mortgage, or other incumbrance, which may exist; thus, "excepting a mortgage to, etc., dated, etc., to secure the sum of, etc.” Or, “excepting a right in the owners of the adjoining land to have and maintain a drain running, etc."
Sometimes quitclaim deeds are made with this warranty: “And I will, and my heirs, etc., shall, warrant and defend, etc.,