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brought his or her action within the prescribed period, if that began after his disability was removed.
2. INHERITANCE.-In this country there is not only an entire absence of the right of primogeniture, but no other difference between the inheritance of real estate or land, and of personal property in goods and chattels, than that which arises necessarily from the difference in the nature of these two kinds of property. We retain, generally, the phraseology of the English law. The word “inheritance" applies in law only to real property, and the statutes by which it is determined how such property passes to the issue or relatives of the deceased, are commonly called statutes of inheritance. Whereas those which determine how and where the personal property shall go are called statutes of distribution. But in all the States these two statutes are nearly alike; that is to say, the persons entitled to the real estate of a deceased man are almost always those to whom the personal property would go as to the next of kin to the deceased.
A person who takes a farm by inheritance (using the word in its common meaning), must take it either under the will of the deceased, or by force of law as the heir of the deceased. On this subject we refer to what we have said in our chapters on wills and on executors and administrators.
3. PURCHASE.-In this country land can only be transferred by DEEDS.
If a man makes a bargain to buy a farm and is so unwise as to take
possession without having a sufficient deed duly executed, his bargain gives him no title to his farm, whicó still remains the property of the man who agreed to sell it. But if the bargain be in writing and sufficiently distinct, the law may help him and compel the owner to carry his bargain into effect by giving a sufficient deed.
The wiser way, if for any reason the parties are not ready to give and receive a deed, is for the intended buyer to take from the intended seller a bond for a deed, of which he will find several forms. See forms 27, 28, and 29, in this book.
For offers made on time, see the third section of the sixth chapter.
For the law of deeds we refer to our chapter on deeds. In that chapter will also be found what it is most important to know, remember, and practice—that is the legal requirements concerning the signing, sealing, acknowledgment, delivery, and recording of deeds. Ignorance or neglect of any of these matters may destroy a man's title to his farm and deprive him of it.
It is now so common to sell a farm at auction that it is well to give some of the rules of law about sales at auction.
4 Sales of LAND AT AUCTION.—Every bid by any one present is an offer by him. It may be withdrawn before the hammer falls; but if not withdrawn, then the offer is accepted and the bargain made.
If a farm be sold the plan or description offered at the sale must give true information, or the purchaser is not bound to take the estate. If the descriptions are written or printed and circulated among the bidders, they cannot be contradicted by verbal declarations made by the auctioneer at the time of the sale.
If land is sold in several lots, and each is bought by itself, there is a separate bargain for each lot; and therefore if the seller can make good title to only one or more of the lots, the buyer must take them though he cannot have the other lots he bought; unless he can show that the buying of the whole was a valid part of the inducement or motive for buying any, and that the part he could have would not answer his purpose unless he could have the other lots.
Whether by-bidders for the seller authorize a purchaser to abandon a sale has been much disputed. Of course any fraudulent act of the seller would have that effect; but it seems to be law that by-bidding is not necessarily fraudulent, if the seller wishes only to avoid sacrifice. But the honest way would be to put the land up at a price. And if the seller or auctioneer declares at the sale that there is no by-bidding, or makes any declaration to that effect, and then employs by-bidding, the buyer is not bound to take the land.
An agreement among many persons that one should bid for all is not necessarily illegal.
An auctioneer of real or personal property who does not give the name of the owner is himself liable to the buyer for the completion of the sale, and for any warranty he makes; and so he is if he sold and warranted without authority. But if he has authority from the owner and states who the owner is, he puts the liability for the sale and the warranty upon the owner.
WHAT ONE TAKES BY THE DEED OF A FARM
1. BOUNDARIES AND DESCRIPTIONS.—The first question is what land does he take; and this question is answered by the boundaries. These cannot be stated too carefully, and cases where difficulties and law-suits have arisen from their inaccu racy or insufficiency are very frequent.
One rule to be remembered is, that evidence of what the parties meant and intended cannot be used to contradict what they have said in writing.
page 74. This rule some. times works great injustice; but the reason of it is obvious, for if, after parties had agreed upon a matter, and put it in writing in the most formal manner, either of them could put the writing aside by evidence that he meant something else, nobody would be safe in his contracts or secure in his rights.
But evidence is receivable to show that either of the parties used language to defraud the other; for fraud can always be exposed, and whenever shown gives the defrauded party the right to avoid the contract. Words and conversation about the farm amount to nothing in law.
The intending seller may say how much stock it will feed, or what crops it will produce, and if he deceives the buyer this man has no remedy, for he must judge of these matters for him. self, or get disinterested advice. But if he should state falsely and fraudulently that the farm had in fact fed so much stock or produced such crops, the deceived buyer would have his remedy, and could avoid the sale if he thought fit.
Evidence is always admissible to show what the contract or instrument means, as who the parties are, or where the farm or land is. The rule is, that evidence cannot contradict but may explain a written contract. If a deed says John Smith sells the
land, evidence cannot show that it was Peter Robinson ; but if there be John Smith the father and John Smith the son, it can show which of them is meant.
So the boundaries may be obscure or uncertain ; and while evidence cannot put new boundaries into a deed, it may make those which are there certain. So boundaries may be inconsistent. The farm may be said to contain so many acres, and to measure five hundred rods from such a boundary to such a boundary in a northwest direction. But there may be no boundary in that direction, and the distance from one bound to the other may be four hundred and six hundred rods, in a northnorthwest direction, and the farm may contain more or fewer acres than the description. In such a case evidence may show, if it can with reasonable certainty, just what the bounds actually are, as certain trees, or posts, or rocks. And if the boundaries are made certain they will control distances, directions, and con: tents, unless the discrepancies are so great as to show either fraud on one part or the other, or that the parties labored under some mistake, and could not have agreed in their minds one to sell and the other to buy the same farm; for this agree ment of minds is in law the very essence of a contract.
If the number of acres enters into the description, it is com mon to add, “ be the same more or less." This guards effect ually against any inaccuracy. But without it, the failure in the number of acres would not avoid the deed, unless it was so large as, with other circumstances, to show fraud. If there be ever so much fraud, the fraudulent party cannot take advantage of it, and only the defrauded party can. If the seller says the farm contains so many acres when he knows it does not, and then points out the boundaries accurately and truly, the buyer is without redress, because he has the means of correcting the misrepresentation.
2. CONTENTS.—The rule of law is, and for many centuries has been, that whosoever owns land owns all there is above it and all there is below it; or as the old phrase ran, everything up to the sky and everything down to the center.
Of course all buildings and everything fairly belonging to the buildings go with the farm. But then comes the question, what
does belong to them? The answer is given by the rules of law as to fixtures.
3. FIXTURES.—They are everything which is fixed or fastened to the land. And if anything be fastened to the land, whatever is fastened to that thing is fastened to the land. Thus: A house rests on a stone foundation sunk into the ground; but the doors and windows of the house are fastened to the house, and therefore they are fastened to the land; and the blinds belong. ing to the windows and the locks and keys to the door, though moveable and for the time removed from them, and some other things of like kind not fastened to the house, are fixtures, and go with the house as that goes with the land. The cases are almost innumerable which have risen upon the question whether this or that thing is a fixture. Before attempting to show how this question has been answered, it may be well to state that many things are fixtures when a house is sold, so that the seller of the house cannot retain them, which would not be fixtures to the hirer of the house if he put them in ; and when his lease expired he could, therefore, take them away with him.
In general, whatever the owner of the farm fastens to the ground or to a building, or uses constantly with it as an appurtenance to it, is a fixture, and he sells it when he sells the farm. But whatever a hirer buys or makes to use with the farm, and fastens to the ground or building, if he fastens it in such a way that he can remove it and leave the land or building in as good order and condition as before, he may remove and take away.
Of course the parties, whether buyer or seller, or hirer or lessor, may make what bargains they like about any fixture. The law of fixtures comes in only where they make no bargain.
A. Things held not to be removable by an outgoing tenant.Barns and sheds fixed in the ground, statues erected on a per. manent foundation as an ornament to the ground, chimney. piece not ornamental if it be fastened to the wall, closets affixed to the house, conservatory substantially affixed, fuel-house, hearths, hedges, pigeon-house, pump-house, wagon-house, boxborders not belonging to a gardener by trade, fruit trees not belonging to a nurseryman. These last two illustrate a rule of much force and frequent application, namely: that a tenant of