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to the said C. D, etc., against all claims and demands of myself, or of any persons deriving title by or through me." Such a warranty will hold the grantor and his heirs liable for any incumbrance made or suffered by him, but not for any other. .
As the usual covenants of a warranty deed are made with the grantee, “his heirs and assigns," if such grantee conveys the land only by grant and quitclaim, without warranty, his grantee takes the benefit of all the previous warranties to which this last grantor was entitled. Thus, A sells with warranty to B; B quitclaims to C; C is ousted by D, who proves that he has a better title than A. C cannot sue B because he got no warranty from B; but he can sue A on A's warranty to B, which was transferred to C.
Sometimes estates are conveyed on condition; but this is a very catching thing, and nobody should ever take such a deed if he can help it. It is hardly safe to have the word condition in
any deed but a mortgage. The reason is, that if an estate is conveyed on condition, and the condition is broken, the estate is lost. Thus if land is sold on a certain street with this clause: "And the land aforesaid is sold on condition that neither the grantee, nor any one deriving title from or through him, shall build within ten feet of the street.” If any owner build six inches over the line, by mistake, or extend his building by an addition of a foot or so in any part, the whole land, house and all, might be lost and forfeited to the grantor. And the grantor can always secure the proper effect of such a condition by a clause like this: "Provided, however, and it is agreed, that if the said C D, etc., shall build, etc., the said A B, or his heirs or assigns, may enter upon the land hereby conveyed, and abate and remove any and all buildings or parts of buildings, which stand nearer said street than the limit of ten feet afore. said;"—or some similar clause, as might be framed to suit the case. This would be just as good for the grantor and a great deal safer for the grantee.
By a rule of law which originated in this country, and is now universal here, if a married woman holds lands, the husband and the wife, joining in one deed, may convey them. In some of our States such a deed is regulated by statutes, which
of course are to be followed. And in many of them the wife now has peculiar powers by statute, as stated in Chapter V. on Married Women. It may be necessary that she should renounce or release certain rights, as of homestead, etc., under these statutes, if it is intended that the grantee should take a clear title; and in such case proper words should be inserted. This is now the custom, for example, in Massachusetts. She should always release her right of dower, unless it is intended that she should preserve it. In some States her signing the deed with her husband does not release anything, even if it could be proved that such was her intention, unless the deed contain words expressing her intention to release or convey such or such a right or interest. In most printed forms there is a blank left to be filled up for this purpose. As this differs in different States I shall refer to it again.
It may be well to remark that bargains are often made for the purchase and sale of real property. If the contract be oral only, it has no force in any court. If it be in writing, either party may, in a court of law, recover damages from the other it hie refuses to perform his contract. Or, in a court of equity, he may compel the other to execute his contract. Not, however, if there was fraud in the contract, or oppression, or gross inisrepresentation, or intentional and important concealment. But a mere inadequacy of price—all things being honest—will not prevent a court of equity from enforcing such an agreement.
Deeds conveying land are of vast variety. They not only differ that they may suit the particular purposes of the parties and the terms of their bargain, but those used in each section of the country differ somewhat in form from those used in another; and different conveyancers in the same State prefer one form to another. But these differences are generally, it not always, differences only of form, and are seldom essential to the meaning and effect of the deeds. I give here forms of all the kinds most in use; and in such variety, and so selected and prepared, that it is believed that any person in any part of this country will be able to find a form, which, either as it stands, or with such alterations as can be readily seen to be required by the use he would make of it, will be safe, and suffi. cient for his purpose.
As acknowledgments differ much in form, enough of them are given to show the kinds that are used. The fuller and more particular are the safer, although the shorter and more general might be sufficient.
In New England, a deed of land is usually what is called in law a Deed Poll; by which is meant a deed of one party, and from him to another. In the other States generally, a deed of lands is more commonly in the form of an Indenture, which, as has been said before, is an instrument between two or more parties. The difference between them will be seen in the forms given. The first one is a Deed Poll. But most of them are Indentures, as they are most frequently used; although a Deed Poll that was satisfactory in other respects would generally suffice to give good title to land anywhere.
A form of a Deed Poll may be converted into an Indenture by changing the beginning of it in the manner shown in the forms, and, whenever the word "grantor" comes, changing that into "the party of the first part.” And a deed by Indenture is made a Deed Poll by changes of an opposite kind. How to make these changes will be seen by comparing the deeds of the two kinds as herein given.
Another difference between the Deeds Poll in common use in the New England States, and the deeds by Indenture in use elsewhere, must be noticed.
If the grantor by a Deed Poll has a wife, and it is intended that she shall relinquish her dower, she is not mentioned as grantor, but in the "In Testimonium," so called, which is that part of the deed which begins with "In witness (or in testimony) whereof," her name is mentioned, and it must be distinctly said that she signs the deed in token of her relinquishment or release of dower. This is shown in Form 106. But where deeds by Indenture are used, there she is joined with her husband, and named as grantor; he and she being "parties of the first part.” It is, however, not necessary that anything should be said in the deed about her release of dower, or homestead; but she signs and seals the deed, and, in the acknowledgment, express mention is made of her release of dower and homestead, and also that she was separately examined. Some
of the forms are drawn in this way. Other forms are written as if the grantor was unmarried, or as if his wife, if he had one, did not intend to give up her dower. But all these forms can be readily altered, and made to resemble either of the forms according as there is or is not a wife, or as, if there be a wife, it is intended that she should join in the conveyance and relinquish her dower, or that the husband should convey subject to the wife's dower. If this last be the intention, it is not necessary to say so, as the mere fact that she is not a party to the deed preserves for her the right of dower.
(106.) A Deed Poll of Warranty, in Common Use in New England.
Know all Men by these Presents, That I, (the grantor) of (residence, town or city, county and State), (occupation), in consideration of (the amount paid) to me paid by
(here name the grantee or purchaser, giving in like manner his residence and occupation), the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said
(name the grantee, and then describe the prem ises granted, minutely and accurately) :
To Have and to Hold the above-granted premises, to the said (name the grantee), his (or her or their) heirs and assigns, to his (or her or theiry use and behoof forever. And I, the said
(name of the grantor), for (myself) and (my) heirs, executors, and administrators, do covenant with the said (name of the grantee), and with his heirs and assigns, that I am lawfully seized in fee simple of the aforegranted premises ; that they are free from all incumbrances (if there be any incumbrances, as a mortgage or lien, ('t right of way, or drain, or air, or light, say excepting, and then describe thir incumbrance), that I have good right to sell and convey the same to the sait
(name of the grantee), and his or her) heirs and assigns forever as aforesaid ; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said (name of the grantee), and his heirs and assigns forever, against the lawful claims and demands of all persons.
In Witness Whereof, I, the said (name of the grantor), and (name of his wife), wife of said grantor, in token of her release of all right and title of or to dower in the granted premises, have hereunto set our hands and seals this day of
in the year of our Lord nineteen hundred and
(Signature.) (Seal Signed, Sealed, and Delivered in Presence of
In those States in which a homestead law exists, the signature of the wife, with a viuuse like that above, would not release
che homestead. To effect this the following clause should be inserted before the words, “In token of:”.
“ In token of her release to the said (name of the grantee), of all her nght, interest, and estate to or in the premises herein conveyed, under the bomestead laws of this State ; and also,” etc.
Some conveyancers think this hardly sufficient, and prefer the following method, which would undoubtedly be effectual in every one of these States. Insert before the paragraph begin. ning “In witness whereof,” this paragraph :
And I, (name of the wife) wife of the said (the name of the frantor), in consideration of one dollar to me paid by the said (the name of the grantee), the receipt whereof is acknowledged, do hereby release and assign to the said (the name of the grantee), and his heirs and assigns, all my right, interest, claim, and estate in or to the premises within granted, under the homestead laws of this State, or any other statutory provisions thereof."
It is to be remembered that, whether the deed be a warranty deed like that above given, or a release or quitclaim, or a mortgage deed, it is equally necessary and proper that the wife should release her homestead right and her dower, unless it is intended that she should retain them.
Below the deed comes the acknowledgment, of which the briefest form is as follows, which is sufficient in a few States :
Commonwealth (or State) of (County) ss. (Town, Month, ana Date.) Then personally appeared the above-named
and acknowl. edged the above instrument to be free act and deed ; before me,
Justice of the Peace.
If the wife is a party to the deed, she should make her sep arate acknowledgment.
A full Form of acknowledgment, by both parties, sufficient anywhere, may be found in Form 112.
whatever. This Indenture, Made the
in the year one thousand nine hundred and