§ 137. Of Title by Eminent Domain. Title by eminent domain is the title by which the government acquires an estate in the real property of an individual, when the same is necessary for public use. The right of eminent domain, or the right to take private property for public use, is inherent in every government. A government also has power to exercise this right in favor of individuals or corporations engaged in prosecuting works of a quasi public nature, such as railroad, turnpike, and canal companies. But when property is so taken full compensation must be made therefor to its owner, and that mode of taking it, which is prescribed by law, must be strictly followed. Read 2 Kent Comm., Lect. xxxiv, pp. 339, 340. 2 Dillon Mun. Cor., §§ 583-625. § 138. Of Title by Grant and Devise. Title by act of the parties is of two kinds: Title by Grant, and Title by Devise. Title by grant is the title by which a person acquires an estate in real property, through the present voluntary act of the previous owner of such property. Title by devise is the title by which one man acquires an estate in the real property of another, after the death of that other and by his voluntary act. Read 2 Bl. Comm., pp. 287–294. 4 Cruise Dig., Tit. xxxii, Ch. i, § 18. § 139. Of Title by Public Grant. Title by grant is of two kinds: Title by Public Grant, and Title by Private Grant. Title by public grant is the title by which a person acquires an estate in real property, which had previously belonged to the government, either of the United States or of one of the individual States. The fee of all unsold lands is either in the United States, or in the State where the lands are situated; and such lands may be granted by the government to which they belong, either by special act of the legislature, or by a proceeding authorized by the general statutes. In the latter case, the transfer is usually made by an instrument called a Patent, signed by a person duly authorized for that purpose, and sealed with the great seal of the state. The terms of this patent, when doubtful, are construed in favor of the government and against the grantee, except when the lands have been granted upon valuable consideration, in which case the rule is reversed. A patent, regularly issued, is conclusive evidence of title, and, when two legal patents conflict, the elder will prevail. Read 3 Kent Comm., Lect. li. 3 Wash. R. P., B. iii, Ch. iii, Sec. 1. § 140. Of Title by Private Grant. Deeds. Title by private grant is the title by which one man acquires an estate from another, during the lifetime of that other and by his voluntary act. The instrument by which an individual conveys an estate to another, to take effect during the lifetime of the grantor, is called a deed. A deed is a writing sealed and delivered between the parties. The material upon which it is written must be parchment or paper. It must be made by a party able to contract and, where obligations are imposed by the deed on the grantee, to a party also able to contract. It must be upon some consideration, either good, (as love and affection), or valuable, (as money or other property). The terms of the deed must be legally and orderly set forth. It must be free from any erasures and interlineations which are not explained in writing on the face of the deed itself. It must also be sealed and delivered. In some of the States, signing by the grantor, the attestation of his signature by one or more witnesses, and his acknowledgment of the instrument as his deed before a magistrate, are necessary. The public recording of a deed is not essential to its validity, but is designed to protect the grantee against the claims of the grantor's creditors, and of his subsequent bona fide purchasers or mortgagees. Read 2 Bl. Comm., pp. 295–298, 305–308. 4 Cruise Dig., Tit. xxxii, Ch. i, § 19; Ch. ii, §§ 1, 2, 4 Kent Comm., Lect. lxvii, pp. 450-459. 3 Wash. R. P., B. iii, Ch. iv, Sec. 1, 2. § 141. Of Indentures and Deeds-Poll. Deeds, as to their parties, are of two kinds : Indentures and Deeds-Poll. An indenture is a deed executed by two cr more parties, and by which they contract reciprocal obligations toward each other. A deed-poll is a deed executed only by the grantor. Read 2 Bl. Comm., pp. 295, 296. 4 Cruise Dig., Tit. xxxii, Ch. i, §§ 23–28. 3 Wash. R. P., B. iii, Ch. iv, Sec. 2, § 47. § 142. Of Original and Derivative Deeds. Deeds, as to their effect, are of two kinds : Original and Derivative. An original deed is a deed which creates an estate. A derivative deed is a deed which modifies an estate already created. Original deeds are of eight kinds : (1) Feoffment, creating a fee-simple; (2) Gift, creating a fee-tail; (3) Grant, creating an estate in incorporeal real property; (4) Lease, creating any estate less than that of the grantor; (5) Exchange, creating mutual estates in consideration of each other; (6) Partition, creating estates in severalty out of estates in joint-tenancy or in common; (7) Bargain and sale, creating any freehold estate; (8) Covenant to stand seised to uses, also creating any freehold estate. Of these, the first six were known to the common law, the last two arose under the statute of Derivative deeds are of five kinds: (1) Release, which conveys to the present particular tenant the estate in remainder or reversion; (2) Surrender, which conveys the present particular estate to the remainder-man or reversioner; (3) Confirmation, which renders a voidable estate sure and unavoidable; (4) Assignment, which transfers the whole of an existing estate; (5) Defeazance, which accompanies another deed, and declares certain conditions upon which such deed is to be defeated. uses. Read 2 Bl. Comm., pp. 310–327, 338, 339. Tit. xxxii, Ch. iv, §§ 1-3, 37-45; 4 Kent Comm., Lect. lxvii, pp. 480-496. 143. Of Deeds in the United States. In the United States, the mode of granting estates is by no means uniform. Many of the common law conveyances are practically obsolete. In some States, the ancient form of a feoffment, or a release, are alone employed. In others, a conveyance by bargain and sale, or lease and release, is still practised. The tendency is toward great simplicity of form, and to a reduction of the number of instruments, as far as consistent with the safety and certainty of estates. Read 4 Kent Comm., Lect. lxvii, pp. 489, 490, 495. 3 Wash. R. P., B. iii, Ch. v, Sec. 3. 144. Of the Parts of a Deed. The parts of a deed are eight: The Premises, describing the parties, the consideration and the property; The Habendum, describing the estate granted; The Tenendum, declaring the tenure on which the estate is to be held; The Reddendum, describing the matters reserved to the grantor out of the estate granted; The Conditions; The Covenant of Warranty; The other Covenants; The Conclusion, embracing the execution, attestation, and acknowledgment. Not all these parts are necessary in every deed, but when necessary they should occupy their proper relative positions. Read 2 Bl. Comm., pp. 298–304. 4 Cruise Dig., Tit. xxxii, Ch. ii, §§ 62–71. § 145. Of the Construction of Deeds. A deed is construed according to the intent of the parties, so far as the same can be ascertained from the terms of the deed itself. When the terms are doubtful, it is construed in favor of the grantee and against the grantor. A grant of a principal thing carries whatever incidentals may be necessary to its enjoyment, provided they belong to the grantor. Read 2 Bl. Comm., pp. 379-381. 4 Cruise Dig., Tit. xxxii, Ch. xix, §§ 1-25, 31, 40. 4 Kent Comm., Lect. lxvii, pp. 467, 468. 3 Wash. R. P., B. iii, Ch. v, Sec. 4, §§ 24-59, 61-63. |