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Handbook On The Law Of Real Property | by Earl P. Hopkins



This volume is the result of an attempt to put the fundamental rules governing the law of real property into a form as easy of comprehension as possible, and so arranged that investigation of any part may be made with ease, promptness, and certainty. It will be found that many of the seeming technicalities of the subject disappear with the statement of the reasons on which they are based. These reasons are in many cases historical, and therefore as much of the history of the law of real property has been given as is necessary for an understanding of these reasons...

TitleHandbook On The Law Of Real Property
AuthorEarl P. Hopkins
PublisherWest Publishing Company
Year1896
Copyright1896, West Publishing Company
AmazonHandbook on the law of real property

By Earl P. Hopkins, A. B., Ll. M Author of Problems and Quiz on Criminal Law, Contracts, Criminal Procedure, Constitutional Law, eta St. Paul, Minn.

To Emlin Mcclain, A. M., LL. D., Chancellor Law Department State University of Iowa, this volume is affectionately inscribed.

-Preface
This volume is the result of an attempt to put the fundamental rules governing the law of real property into a form as easy of comprehension as possible, and so arranged that investigation of any part...
-Chapter I. What Is Real Property
1. Real and Personal Property. 2. Real Property - Land. 3. Things Growing on Land. 4. Fixtures. 6. What Fixtures Removable. 6. Time of Removal. 7. Equitable Conversion. 8. Personal Interests in...
-Real And Personal Property
1. Property means things owned, and is divided into: (a) Real property, and (b) Personal property. Real and Personal Actions. For our present purposes, property Is divided into two classes,- real ...
-Real Property-----land
There is also a difference as to taxation of the two kinds of property.13 Lands, Tenements, and Hereditaments. At an early period in legal history the two classes of property were distinguished as ...
-Land
The word land is often used as practically synonymous with realty, and as such it includes not only the soil, but everything attached to it or growing or imbedded in it,18 extending upward 13 Coo...
-Water
Running waters are not owned by those who own the land over which they flow. These riparian owners, as they are called, have only an easement in such waters. These rights in water are treated as real ...
-Water. Part 2
30 Black, Const. Law, 124; Weise v. Smith, 3 Or. 445; Wilson v. Forbes, 2 Dev. (N. C.) 30; The Daniel Bell, 10 Wall. 557. Cf. Veazie v. Dwinel, 50 Me. 479; City of Chicago v. Mcginn, 51 111. 266; Peop...
-Water. Part 3
Bam. & Adol. 105. Contra, Reiff v. Reiff, 64 Pa. St. 134; Evans v. Iglehart, 6 Gill & J. 171. But not growing grasses. Reiff v. Reiff, 64 Pa. St. 134. Nor young trees. Co. Litt. 55a. But turpentine s...
-Express Contract
The parties between whom the question Is likely to arise may settle all doubts in advance by express contract.64 This is, of course, an instance of expressed intention. ...
-Statutory Regulation
In some states the question of fixtures has been made a matter of legislative enactment, and certain classes of annexations are by statute declared to be real fixtures, and others to be chattel fixtur...
-Character Of Annexation
The manner in which a fixture is attached or annexed to the realty is indicative of the intention with which it was placed there. It shows whether it was intended to be permanent or to be subsequently...
-Character Of Annexation. Part 2
81 See Williamson v. Railway Co., 25 N. J. Eq. 13; Stevens v. Railway-co., 31 Barb. 590; Beardsley v. Bank, 31 Barb. 619; Hoyle v. Railway Co., 54 N. Y. 314; Chicago & N. W. Ry. v. Ft. Howard, 21 Wis....
-Character Of Annexation. Part 3
Same - Domestic Fixtures. Certain annexations may be removed as domestic fixtures, which comprise such things as stoves,110 wash tubs fastened to the house,111 gas fixtures,112 chimney-pieces,113 marb...
-Character Of Annexation. Part 4
119 D'eyncourt v. Gregory, L. R. 3 Eq. 382; Cannon v. Hare, 1 Tenn. Ch. 22; Cave v. Cave, 2 Vera. 508; Lawton v. Salmon, 1 H. Bl. 260, note; Mc-gullough v. Irvine's Ex'rs, 13 Pa. St 438; Gledden v. Be...
-Character Of Annexation. Part 5
130 Where a landlord enters on his tenant for breach of condition, and thereby puts an end to the tenancy, the right to remove fixtures is gone. Pugh v. Arton, L. R. 8 Eq. 626; Weeton v. Woodcock, 7 M...
-Chapter II. Tenure And Seisin
9. Tenure. 10. Seisin. Tenure 9. Tenure signifies the holding of lands or tenements in subordination to some superior, and the terms of the holding.1 The Feudal System The feudal system, which Wil...
-Incidents Of Tenure
There were certain incidents, connected with military and with socage tenure, which constituted their chief importance, and continued to exist at a time when the services due on account of the tenure ...
-Statute Of Quia Emptores
Prior to 1289 a tenant of lands could grant a part of them, to be held under him by feudal services. His tenant, thus created, could do the same. This process was called subinfeudation. In the year ...
-Chapter III. Estates As To Quantity-Fee Simple
11. Estate Defined. 12. Classification of Estates. 13. Quantity of Estates. 4-15. Freehold-estates of Inheritance. 16. Fee Simple, 17. Creation. 18. Right of User. 19. Alienation. ...
-Estate Defined
11. The interest which a person has in real property is called an estate. The term estate, in its technical sense, is used only in connection with real property. There can properly be no estates ...
-Classification Of Estates
12. Estates will be discussed: (a) As to quantity (p. 34). (b) As to quality (p. 169). (c) As to legal or equitable character (p. 251). (d) As to time of enjoyment (p. 278). (e) As to number of o...
-Quantity Of Estates
13. The quantity of an estate signifies its duration. As to quantity estates are: (a) Freeholds, which are: (1) Of inheritance, comprising: I. Fee simple (p. 35). II. Fee tail (p. 42). (2) Not of ...
-Freehold-estates Of Inheritance
14. A freehold estate is one which may last during a life, and whose duration is uncertain, but is not dependent on the will of another.3 2 See Sedgwick, J., In Cutts v. Com., 2 Mass. 284. 3 2 Bl Co...
-Fee Simple
16. A fee simple is a freehold estate in perpetuity. It is an estate limited to a man and his heirs, and is the largest possible estate in land. The word 'fee' originally signified land holden of a ...
-Voluntary Alienation
One of the principal incidents of a fee simple is the right of the owner to dispose of it, and in this way exert a control over his land even after death. Subject to certain disabilities of the person...
-Involuntary Alienation
A fee simple is also subject to alienation without the owner's consent, for it may be taken for taxes, and, at the present time, to 31 Post, p. 381, including the disabilities of aliens, corporations...
-Chapter IV. Estates As To Quantity-Estates Tail
20. Estates Tail Defined. 21-22. Classes of Estates Tail. 23. Origin of Estates Tail 24-25. Creation of Estates Tail 26. Incidents of Estates Tail. 27. Duration of Estates Tail 28. Tenant in Tai...
-Estates Tail Defined
20. An estate tail is an estate of inheritance which descends only to the heirs of the body of the donee or to some special class of such heirs. An estate tail is a freehold estate of inheritance, wi...
-Classes Of Estates Tail
21. Estates tail are divided into: (a) Estates in general tail, the donee being the only parent named. (b) Estates in special tail, both parents being named. 22. Estates in general and special tail...
-Origin Of Estates Tail
23. Estates tail were created by the operation of the statute de donis conditionalibus upon fees conditional at common law. In early feudal times, when estates first became hereditary, and were given...
-Creation of Estates Tail
24. For the creation of a fee tail there must be added to the words necessary to limit a fee simple other words which restrict the inheritance to the heirs of the body of the first taker: 25. An esta...
-Limitation Of Estates Tail
For the creation of an estate tail words of limitation and procreation are necessary; that is, not only is the word heirs required, as in the limitation of a fee simple, but there must also be some ...
-Estates Tail-in Chattel Interests
There can be no fee tail in personal property or in chattel interests, and an attempt to so limit an estate tail results in passing the donor's entire interest.* ...
-Incidents of Estates Tail
26. The rights of the owner of a fee tail are the same as the rights of one owning a fee simple, except as to alienation. As already seen, a tenant in tail can convey only an estate during his life; ...
-Duration Of Estates Tail
27. An estate tail endures until the particular heirs named in the gift are exhausted, and then reverts to the donor, unless it is sooner barred, which may be: (a) By common recovery (obsolete).. (b...
-Tenant In Tail After Possibility Of Issue Extinct
28. When there is a tenant in special tail, and it has become impossible for him to have issue who can inherit under the entail, he is called tenant in tail after possibility of issue extinct. If o...
-Estates Tail In The United States
29. In many states estates tail have been abolished by statutes, which have turned them into either (a) Estates in fee simple, or (b) Life estates, with remainders to the donee's heirs who would tak...
-Quasi Entail
Estates tail, as created by the statute de donis, were generally recognized in the original states of this country.55 But great changes have been made by statute. In some of our states estates tail ha...
-Chapter V. Estates As To Quantity-Conventional Life Estates
32. Life Estates Defined. 33. Creation of Life Estate. 84-36. Conventional Life Estates. 37. Incidents of Life Estates. 38-39. Estates per Autre Vie. Life Estates Defined 32. Life estates are free...
-Creation Of Life Estates
33. As to mode of creation, life estates are: (a) Conventional, created by act of the parties (p. 56), (b) Legal, created by operation of law (p. 69). 1 2 Bl Comm. 120. 2 Hurd v. Cushing, 7 Pick. ...
-Words Of Limitation
According to common-law rules, if an estate is granted to a man without adding any words of limitation, he takes a life estate. Therefore, no special words need be used to create a life estate,10 exce...
-Estates per Autre Vie
An estate for the life of another15 usually arises by one who is tenant for life assigning his interest to another, who thereby becomes entitled to the land during the life of the grantor. It may, how...
-Alienation
A tenant for life has power to dispose of his interest in whole or in part, unless there is a condition in restraint, in the terms of his grant;17 but he can give another no rights in the land which w...
-Interest On Incumbrances
It is the duty of the tenant to keep down the interest on incumbrances, but he is not bound to pay off the principal;22 and, if he does, he is entitled to contribution from the reversioner or remainde...
-Apportionment Of Rent
If the tenant for life makes a lease reserving rent and dies before the day the rent is due, the rent is apportioned, and his personal representative can recover the amount due when the lessor died.24...
-Incidents Of Life Estates
Improvements and Repairs. The tenant for life can recover nothing for improvements which he makes on the estate; 25 but he may put buildings into tenant-able condition at the expense of the estate, o...
-Estovers
A tenant for life has a right to cut timber growing on the land to use for certain purposes. This is called the right to estovers or botes, and comprises: (1) House bote, or the right to cut wood for ...
-Emblements
The personal representative of a tenant for life is entitled to emblements,31 since the tenant's estate is one of uncertain duration.32 But the tenant himself cannot claim them if he forfeits his esta...
-Emblements. Continued
48 Clemence v. Steere, 1 R. I. 272. 49 Keepers, etc., of Harrow School v. Alderton, 2 Bos. & P. 86. 50 Pynchon v. Stearns, 11 Metc. (Mass.) 304; Clemence v. Steere, 1 R. I 272; Alexander v. Fisher, ...
-Merger
Merger is the absorption of a less estate into a greater where two estates meet in the same person. Thus, where an estate in fee simple and an estate of less duration, such as a life estate or an esta...
-Chapter VI. Estates As To Quantity-Legal Life Estates
40-41. Legal Life Estates-estates by Marriage. 42. Estate during Coverture. 43-44. Curtesy. 45. In What Estates. 46. Incidents. 47. How Defeated. 48. Statutory Changes. 49. Dower-definition. 5...
-Legal Life Estates-estates By Marriage
40. In American law all legal life estates are estates by marriage, except: Exception-with the possible exception of estates tail after possibility of issue extinct. 41. The legal life estates are : ...
-Estate During Coverture
42. The estate during coverture is the right which the husband acquires at common law to the chattels real of his wife which he reduces to possession, and to the use and profits of her realty. Qualifi...
-Equitable Doctrine-separate Estate
As to chattels real and personal property of the wife in general, courts of equity adopted a rule that, when a husband sought their aid in reducing such property to his possession, they might compel h...
-Statutory Changes
The importance of the equitable doctrine is, however, much lessened in this country by Married Women's Acts in all the states, which have made great changes in the law on this subject. In many state...
-Curtesy
43. By common law a husband is entitled to curtesy, which is an estate for the life of the husband in all the wife's realty, provided the following conditions concur: (a) Valid marriage. (b) Issue b...
-Marriage
The first requisite of curtesy is lawful marriage. If the marriage was absolutely void, no curtesy will attach; but if it is only voidable, and is not annulled during the wife's life, then the husband...
-Death Of Wife-curtesy Consummate
If the wife dies before the husband, his right to curtesy is at once consummate, and his estate vests immediately, without any assignment or other formality.44 Curtesy, having vested in the husband, c...
-Estates Of Inheritance
A husband, as has been seen, has curtesy only in estates of which the wife is seised during the coverture. The estate of the wife v. Galloway, 1 Mclean, 476, Fed. Cas. No. 1,037; Den v. Wanett, 10 Ire...
-Curtesy-incidents, Estates In Expectancy
The estate must have been one in possession during the wife's life. So there can be no curtesy in a reversion or a remainder,53 unless the prior particular estate determined before her death, and the ...
-Dower-definition
49. Dower is the provision which the law makes for a widow out of the lands or tenements of the husband for her support. In most states it is a life estate in one-third of the husband's realty. The re...
-Lands Capable Of Enjoyment
The dower right attaches only to real property,107 and not to all kinds of realty even; for instance, in many states dower is not given in wild lands, because to clear them for cultivation would be wa...
-Determinable Estates
Dower attaches to determinable estates,113 but is defeated by the happening of the event which terminates the estate.114 If this occurs before the husband's death, dower never becomes consummate; if a...
-Equitable Estates
At common law, equitable estates are not subject to dower;115 but the rule has been changed in many states by statute.116 Dower attaches to estates executed by the statute of uses.117 In either case, ...
-Joint Estates
In a joint tenancy,139 the possibility of survivorship in the co-tenants prevents dower from attaching.140 This, of course, does not apply when the husband has survived his co-tenants, or there has be...
-Joint Estates. Continued
151 Harrison v. Boyd, 36 Ala. 203. She cannot claim quarantine in the whole of a house held in common. Collins v. Warren, 29 Mo. 236. Except in states where such interests are made subject to dower, q...
-Dower-by Whom Assigned
Mon.185 Sometimes, as in case of a mine, mill, or ferry, the only practical method of assigning dower is to give alternate enjoyment 186 or to divide the profits.187 When a division is impossible, or ...
-Dower-by Whom Assigned. Part 2
206 Whyte v. Mayor, etc., of Nashville, 2 Swan (Tenn.) 364. 207 Summers v. Babb, 13 111. 483. Cf. Matlock v. Lee, 9 Ind. 298; Stockwell v. Sargent, 37 Vt. 16. 208 See Talbot v. Hill, 68 III. 106. ...
-Dower-by Whom Assigned. Part 3
231 Toomey v. Mclean, 105 Mass. 122; Stirbling v. Ross, 16 III. 122; Mc-clure v. Fairfield, 153 Pa. St. 411. 26 Atl. 446; Vickers v. Henry, 110 N. C. 371, 15 S. E. 115; Waller v. Waller's Adm'r, 33 ...
-Dower-by Whom Assigned. Part 4
246 Fowler v. Shearer, 7 Mass. 14; Kirk v. Dean, 2 Bin. (Pa.) 341; Chicago Dock Co. v. Kinzie, 49 111. 289; Howlett v. Dilts, 4 Ind. App. 23, 30 N. E. 313; Ortman v. Chute, 57 Minn. 452, 59 N. W. 533;...
-Dower-how Defeated
Widow's Election-testamentary Provision in Lieu of Dower. In nearly all states, if the husband by his will make provision for his wife expressly in lieu of dower, she must elect which she will take.2...
-Estoppel
A widow may be estopped to claim dower by covenants of warranty,273 or by her conduct, as in inducing a purchaser to take the land, representing it free from dower.274 2 Iowa, 551; Cain v. Cain, 23 I...
-Homestead
62. The homestead right is, in most states, an exemption to a debtor of a home free from liability for certain debts. Homestead did not exist at common law, but is wholly a creation of statute, and i...
-Homestead. Continued
291 Succession of Norton, 18 La, Ann. 36; Allen v. Manasse, 4 Ala. 554; Meyer v. Claus, 15 Tex. 516; Black v. Singley, 91 Mich. 50, 51 N. W. 704. 292 Thomp. Homest & Exemp. 476; Bateman v. Pool, 84 ...
-Occupancy
In most of the states, the right to claim land exempt as a homestead is acquired by occupaucy of the premises as a home.315 To create a homestead by occupancy, the occupancy must be actual,316 an urba...
-Recorded Notice
In some states occupancy alone is not sufficient to create a homestead exemption. It is required, in addition, that there be a notice recorded that the premises are claimed as a homestead, or the word...
-Homestead-how Lost - Abandonment
Like acquisition by occupancy, loss by abandonment is in all cases a question of fact,329 and, in determining this, intention to re turn 330 and duration of absence are material points.331 Leasing the...
-Homestead-how Lost - Abandonment. Continued
341 Piper v. Johnston, 12 Minn. Go (Gil. 27); Getzler v. Saroni, 18 111. 511; Huey's Appeal, 29 Pa. St. 219. 342 Mcdonald v. Crandall, 43 111. 231; Chamberlain v. Lyell, 3 Mich. 458; Hewitt v. ...
-Federal Homestead Act
72. The federal homestead act provides for the acquisition of title to public lands by actual settlers, and exempts the land from liability for debts contracted before the patent is issued. The feder...
-Chapter VII. Estates As To Quantity (Contlnued)-Less Than Freehold
73-75. Estates for Years. 76. Creation of Estates for Years. 77. Rights and Liabilities of Landlord and Tenant 78-79. Rights under Express Covenants. 80-81. Rights under Implied Covenants. 82. Rig...
-Estates For Years
73. An estate for years is an estate created for a definite time, measured by years or fractions of a year. 74. The grantor of an estate for years is called the lessor or landlord; the grantee is...
-Historical
By the early common law a lessee had no interest which the law would protect against third persons, nor, indeed, against the lessor, unless the interest in the lands rested on a covenant by deed. It h...
-Creation Of Estates For Years Commencement
A term of years may be granted to begin in the future,28 provided the time is not postponed beyond the period allowed by the rule against perpetuities.29 An estate of freehold cannot be so limited at ...
-Creation Of Estates For Years Commencement. Part 2
41 Piggot v. Mason, 1 Paige (N. Y.) 412, Renoud v. Daskam, 34 Conn. 512; Blackmore v. Boardman, 28 Mo. 420; Kolasky v. Michels, 120 N. Y. (535, 24 N. E. 278. A covenant for perpetual renewal is good. ...
-Creation Of Estates For Years Commencement. Part 3
65 Barnard v. Godscall, Cro. Jac. 309. See post, p. 149. 66 Jones v. Parker, 163 Mass. 564, 40 N. E. 1044. 80. Rights Under Implied Covenants-the principal implied covenants in a lease are: (a) By ...
-Creation Of Estates For Years Commencement. Part 4
82 Except by statute. 1 Stim. Am. St. Law, 2042. 83 I Wood, Landl. & Ten. (2d. Ed.) 701, 709; 2 Wood, Landl. & Ten. (2d Ed.) 954; 1 Tayl. Landl. & Ten. (8th Ed.) 398, 477, 479; Cburcb v. Brown...
-Creation Of Estates For Years Commencement. Part 5
93 Kansas Inv. Co. v. Carter, 160 Mass. 421, 36 N. E. 63; Phelps v. Randolph, 147 111. 335, 35 N. E. 243. And see Bentley v. City of Atlanta, 92 Ga. 623, 18 S. E. 1013. Any right of re-entry in the le...
-Creation Of Estates For Years Commencement. Part 6
Distress for Rent. At common law the landlord has a remedy, called distress. 114 for enforcing the payment of rent, by seizing personal property Mon. (Ky.) 619; Elliott v. Smith, 23 Pa. St. 131; M...
-Creation Of Estates For Years Commencement. Part 7
Transfer by Lessor. Unless restrained by express covenants,126 either the lessor or the lessee may transfer his interest under a lease.127 The requirements of the statute of frauds are the same for a...
-Lapse Of Time
Estates for years in most cases determine by mere lapse of time; that is, the period for which the lease was made expires, and the term is thereby at an end, without any notice by either party.146 ...
-Forfeiture
When the continuance of a term is made to depend on a condition, or there is a reservation of a right of re-entry for breach of the covenants of the lease, an entry in either instance puts an end to t...
-Surrender
A surrender159 will terminate an estate for years,160 but only when made to the holder of the next estate. Therefore an under(n. Y.) 530; Gomber v. Hackett, 6 Wis. 323; Newman v. Rutter, 8 Watts (Pa.)...
-Destruction Of Premises
The destruction of the premises-for instance, where a room is leased, and the whole house is burned-puts an end to the tenancy, because the subject-matter of the lease has ceased to exist.163 This is ...
-Tenancies At Will
86. A tenancy at will is a letting of land to be held so long as neither party chooses to terminate it. Same - creation 87. Tenancies at will are created: (a) By a letting for an indefinite ...
-Tenancies From Year To Year
90. A tenancy from year to year is a letting of land for an indefinite number of fixed periods. 91. A tenancy from year to year arises whenever there is a reservation of rent in a letting which would...
-Letting Of Lodgings
94. A letting of lodgings, where the owner of the house retains possession and control, creates only a contract relation. The hiring of furnished apartments creates a tenancy from year to year; that ...
-Tenancies At Sufferance
95. A tenancy at sufferance is a holding of lands after the expiration of a previous right to possession. Same - creation 96. For the creation of a tenancy at sufferance, the tenant must have come i...
-Licenses Same - termination
98. A tenancy at sufferance may be terminated at any time, by either party, without notice, except: Exception-in some states a notice is required by statute. A tenant at sufferance is entitled to no ...
-Licenses
99. A license is an authority to do specified acts on the land of the licensor. A license is not an estate, and is not assignable. Licenses are created either by express agreement, or by implication....
-Chapter VIII. Estates As To Quality-On Condition-On Limitation
101. Estates as to Quality. 102. Estates on Condition. 103-104. Conditions Precedent and Subsequent. 105. Void Conditions. 106. Termination of Estates on Condition. 107. Who can Enforce a Forfeit...
-Estates As To Quality
101. Estates as to quality are either absolute or qualified. Qualified estates will be treated under the following heads: (a) Estates on condition (p. 169). (b) Estates on limitation (p. 177). ...
-Estates On Condition
102. An estate on condition is one which is created or defeated, enlarged or diminished, on the happening of a contingency. 102a. A mortgage is an estate on condition (p. 180). Heretofore estates ha...
-Void Conditions
General conditions in restraint of marriage are void. Partial restrictions on marriage, such as not to marry a named person, or any one of a named family, are generally sustained, even without a limit...
-Estates On Limitation
108. An estate on limitation is one which is created to continue until the happening of a contingency upon which it comes to an end without an entry. The phrase, words of limitation, has already be...
-Chapter IX. Estates As To Quality-Mortgages
110. Mortgage Defined. 111. Parties to a Mortgage. 112. Nature of a Mortgage, 113. What may be Mortgaged. 114. Form of a Mortgage. 115. Rights and Liabilities of Mortgagor and Mortgagee. 116. Na...
-Mortgage Defined
110. A mortgage is a conveyance of land as security, and is usually in the form of an estate on condition subsequent. The discussion of mortgages in this chapter includes only mortgages of real prope...
-Nature Of A Mortgage
112. There are two theories as to the nature of a mortgage recognized in the different states: (a) The common-law theory regards a mortgage as an estate in land, and the mortgagee as the owner of the ...
-The Common-law Theory
In the United States there are two theories as to the nature of a mortgage: One is that the mortgagee has an estate; the other, that he has only a lien. This difference is the result of the history of...
-What May Be Mortgaged
113. Any interest in realty -which is subject to sale and assignment may be mortgaged. As stated in the black-letter text, any interest in realty which is subject to sale or assignment may be mortgag...
-Form Of A Mortgage
114. The ordinary form of a mortgage is that of an absolute conveyance with a defeasance clause. But a mortgage may be created: (a) With a separate defeasance (p. 186). (b) With a parol defeasance (...
-Deed Of Trust
A deed of trust in the nature of a mortgage-that is, a conveyance of realty to a trustee to secure the payment of a debt-is in many states treated as a mortgage.69 The usual form of a deed of trust is...
-Equitable Mortgage
An equitable mortgage does not refer to the mortgage of an equitable interest, but to instruments having the effect of mortgages, which are recognized only in equity. An absolute deed with a parol 64...
-Rights And Liabilities Of Mortgagor And Mortgagee
115. The rights and liabilities of mortgagor and mortgagee will be considered under the following heads: (a) Nature of mortgagor's estates (p. 195). (b) Possession of mortgaged premises (p. 196). (...
-Nature Of Mortgagor's Estate Same - nature of Mortgagor's Estate
116. The mortgagor is owner of the mortgaged premises, as to all persons except the mortgagee. As stated in the black-letter text, the mortgagor is owner of the estate, as to all persons except the m...
-Nature Of Mortgagor's Estate Same - nature of Mortgagor's Estate. Continued
125 Flagg v. Flagg, 11 Pick. (Mass.) 475. And see Hartshorn v. Hubbard, 2 N. H. 453; Flanders v. Lamphear, 9 N. H. 201; Lamb v. Foss, 21 Me. 240. 126 Wakeman v. Banks, 2 Conn. 445. 127 Morse v. Whit...
-Debits
The mortgagee is chargeable with whatever he has collected as rents and profits of the mortgaged premises,156 or what he should have received if he had managed the estate as a prudent owner.157 150 R...
-Credits
A mortgagee in possession must make necessary repairs,163 and he will be allowed, in his accounting, to charge for any repairs made by him which are reasonable.164 He is also allowed the expense of an...
-Annual Rests
Whenever the rents and profits are more than the annual interest, a rest is made; that is, the net amount of rents and profits in excess of the interest is deducted from the mortgage debt, and from th...
-Marshaling
By the doctrine of marshaling,186 where a prior mortgagee is entitled to satisfaction of his debt out of two parcels of land, a junior mortgagee, who has a lien on only one of these parcels, may be su...
-Assignment Of The Equity Of Redemption
125. A mortgagor may assign his equity of redemption, but the assignment is subject to the folio-wring conditions, among others: (a) The equity of redemption cannot be assigned to the mortgagee at th...
-Assignment Of The Mortgage
127. A mortgagee may assign his interest, or part of it, on the following conditions: (a) It must be by deed. (b) The mortgage debt must accompany the mortgage. (c) The assignee takes the mortgage ...
-Priority Of Mortgages And Other Conveyances
130. No subsequent purchaser or incumbrancer can take priority over a conveyance of which he has notice. Such notice may be: (a) Actual (p. 213). (b) Implied (p. 215). (c) Constructive, which inclu...
-Implied Notice
By the doctrine of implied notice, one who has no notice himself is presumed to have notice because of his legal relations with one who has notice. This arises most often from the relation of principa...
-What Instruments Recorded
The registry acts generally require the recording of all instruments affecting real estate, except short leases, in a number of states.292 The laws in most of the states provide, also, for the recordi...
-Manner Of Recording
To entitle a mortgage or other conveyance to be admitted to record, the requirements of the statutes as to execution 302 and delivery must be complied with.303 But a conveyance may be recorded after t...
-Manner Of Recording. Part 2
316 Barney v. Mccarty, 15 Iowa, 510; Lombard v. Culbertson, 59 Wis. 433, 18 N. W. 399. But see Lane v. Duchac, 73 Wis. 646, 41 N. W. 9G2. 317 Mutual Life Ins. Co. v. Dake, 87 N. Y. 257; Curtis v. ...
-Manner Of Recording. Part 3
337 Holbrook v. Dickenson, 56 111. 497. As to who are bona fide purchasers, see Fetter, Eq. 95. 338 Martin v. Jackson, 27 Pa. St 504; Hulett v. Insurance Co., 114 Pa. St. 142, 6 Atl. 554; Porter v. ...
-Discharge Of A Mortgage
132. A mortgage may be discharged: (a) By performance (p. 227). (b) By merger (p. 231). (c) By redemption (p. 233). Same - performance 133. Performance of the condition in the defeasance discharg...
-Performance Or Payment
A mortgage being an estate on condition subsequent, the mortgagee's estate is defeated by the performance of the condition named in the defeasance. Performance usually requires the payment of money, b...
-Tender
Whenever payment would discharge a mortgage, tender of payment 385 will have the same effect386 To have this effect, however, tender must be absolute and unconditional,387 and it must be for the whole...
-Tender. Continued
401 Lynch v. Pfeiffer, 110 N. Y. 33, 17 N. E. 402; Loomer v. Wheelwright, 3 Sandf. Ch. (N. Y.) 135; Aetna Life Ins. Co. v. Corn, 89 111. 170; Jarvis v. Frink, 14 111. 396; Loverin v. Trust Co., 113 ...
-Amount Payable
The sum which must be paid in order to redeem from a mortgage is the amount of the mortgage debt and interest still due.434 But money paid by the mortgagee in discharging a prior incumbrance, together...
-When Redemption Is Barred
The right of redemption is barred by foreclosure, and by lapse of time.447 Foreclosure, however, does not have this effect if the mortgagee subsequently recognizes the mortgage as still existing.448 N...
-Foreclosure
138. Foreclosure is the proceeding by which the mortgaged premises are applied to the payment of the mortgage debt, and the right of redemption barred. 139. Foreclosure will be treated under the foli...
-Foreclosure. Continued
482 Rothschild v. Railway Co., 84 Hun, 103, 32 N. Y. Supp. 37; Jackson v. Hull, 10 Johns. (N. Y.) 481; Hughes v. Edwards, 9 Wheat. 489; Torrey v. Cook, 116 Mass. 163. But see Felton v. West, 102 Cal. ...
-Foreclosure In Equity-parties Plaintiff
As before stated, the most usual method of foreclosure is by a proceeding in equity. In such an action the rights of all parties in the mortgaged premises are to be determined. Therefore all persons i...
-Power Of Sale
It is usually provided in a mortgage or deed of trust that the mortgagee or trustee, respectively, shall, on default of payment, have power to sell the mortgaged premises without going into court.549 ...
-Chapter X. Equitable Estates
141. Legal and Equitable Estates. 142. Use or Trust Defined. 143-144. The Statute of Uses. 145. When the Statute does not Operate;. 146. Classification of Trusts. 147. Express Trusts. 148-149. Ex...
-Legal And Equitable Estates
141. The various kinds of estates as to quantity and quality may be either (a) Legal, or (b) Equitable. We now come to a new principle upon which to classify estates, namely, their legal or equitab...
-Use Or Trust Defined
142. A use or trust is an equitable right to the beneficial enjoyment of an estate, the legal title to which is held by another person. At common law there were many restraints on the alienation of r...
-The Statute Of Uses
143. The statute of uses enacted that whenever any person should be seised of any lands to the use, confidence, or trust of another, the latter should be deemed in lawful seisin of a legal estate of a...
-Classification of Trusts
146. Trusts, according to the method of their creation, are divided into (a) Express trusts (p. 258). (b) Implied trusts (p. 264). A great deal of confusion exists in the books and cases on the sub...
-Express Trusts
147. Express trusts are those which are created by act of the parties. They are either (a) Executed, or (b) Executory. Same - executed And Executory Trusts 148. An executed trust is one in -which ...
-Limitation Of Trustee's Estate
In limiting the legal estate to a trustee, the strict requirements as to the use of technical words in conveying legal estates are relaxed, and the trustee is held to take an estate sufficient to carr...
-Precatory Words
In the creation of an express trust, It is not necessary to use the words use. confidence, or trust, or in fact any technical expression.47 It is sufficient if from the whole instrument an intention...
-Parties
The person creating a use or trust is called the feoffor. Any one owning land who has capacity to make a contract or a will can create a trust.59 For instance, a state 60 or a corporation, if the la...
-Implied Trusts
152. Implied trusts are those created by operation of law in order to do justice between the parties. They are either (a) Resulting trusts (p. 265), or (b) Constructive trusts (p. 269). Some of the...
-Implied Trusts. Continued
Consideration Paid by Another. The third class of resulting trusts is where the purchase price is paid by one person, and the conveyance taken in the name of another. In these cases equity presumes t...
-Incidents Of Equitable Estates
155. A trustee is the holder of the legal title. The cestui que trust is the beneficial owner. 156. The rights and duties of trustee and cestui que trust depend, in each case, upon the nature and ter...
-Interest of the Trustee
Trust estates are generally given to two or more trustees jointly. When the instrument creating the trust is obscure, such a construction would be favored.120 Joint trustees, however, cannot have part...
-Interest of the Cestui Que Trust
When equitable estates were introduced; the feudal incidents attaching to legal titles were discarded, and with them the restraints on alienation which existed at common law.134 Under a passive trust ...
-Charitable Trusts
157. Charitable trusts are those created for the benefit of the public at large, or of some portion of it, and include benevolent, religious, and educational objects. 158. Charitable trusts differ fr...
-Beneficiary Indefinite
Charitable trusts differ from private trusts, in the first place, in the fact that they are favored by the courts in the construction of instruments creating them, and less certainty of description in...
-Doctrine Of Cy-pres
There is some confusion as to the real meaning of the doctrine of cy-pres. In many cases nothing more is meant than that courts are favorable to the establishment of charitable trusts, and will constr...
-Chapter XI. Estates As To Time Of Enjoyment-Future Estates
159. Estates as to Time of Enjoyment. 160. Future Estates. 161. Future Estates at Common Law. 162'. Reversions. 163. Possibilities of Reverter. 164-165. Remainders. 166. Successive Remainders. 1...
-Estates As To Time Of Enjoyment
159. Estates classified with reference to the time at which the owner is entitled to enjoyment in possession are either (a) Present, or (b) Future. ...
-Future Estates
160. A future estate is one which does not entitle its owner to the possession of the land until some time in the future. Future estates, according to the source to which they are to be referred, are:...
-Future Estates At Common Law
161. The future estates or interests possible under the common law are: (a) Reversions (p. 280). (b) Possibilities of reverter (p. 281). (c) Remainders (p. 282). Same - reversions 162. A reversio...
-The Particular Estate
As already seen, there can be no remainder without a preceding particular estate; that is, a remainder cannot be limited after an estate reserved to the grantor. The particular estate must be a freeho...
-Freehold In Futuro
At common law there was a rule that no limitation of an estate was valid which would put the freehold in abeyance; or, as it was otherwise expressed, a freehold could not be created to commence in fut...
-Destruction Of Vested Remainders
There may be a vested remainder subject to be defeated by a contingency; that is, a vested remainder may be limited as an estate on condition or on limitation.58 Vested remainders are de stroyed by me...
-Contingency on Which Remainder may Depend
From the definition of a remainder, the contingency on which a remainder is to vest must in no case be in derogation of the preceding estate.74 And so a contingent remainder will be void if it is made...
-Contingency on Which Remainder may Depend. Continued
On account of the liability of contingent remainders to destruction by the determination of the preceding estate, a device was introduced to prevent this result, as follows: After the limitation of a ...
-Future Estates Under The Statute Of Uses
175. Future estates created under the statute of uses are,(a) Future uses (p. 298). (b) Springing uses (p. 299). (c) Shifting uses (p. 300). As has already been seen, after the Introduction of uses...
-Future Estates Under The Statute Of Wills-executory Devises
179. Executory devises are future estates created by devise under the statute of wills, which cannot take effect as remainders. 180. Executory devises may be either springing or shifting. The statut...
-Incidents Of Future Estates
181. The rights of the owners of future estates are correlatives of the duties of the tenants of the preceding estates. 132 See Wilson v. White, 109 N. Y. 59, 15 N. E. 749; Taylor v. Taylor, 63 Pa. ...
-Powers
186. A power is an authority to create some estate in lands, or a charge thereon, or to revoke an existing estate in the same way that the owner, granting the power, might himself do. 161 2 Bl. Comm....
-Powers. Continued
Same - creation 190. Powers may be created (a) By deed under the statute of uses. (b) By devise under the statute of wills. 191. Technical words of limitation are not required. 175 Phillips v. Br...
-Execution Of Powers
But such powers survive, and, after the death of one of the donees, may be executed by the survivor,203 unless the power is given to the several donees by name, showing that personal trust and confide...
-Form Of Execution
At common law no particular form of execution of a power was required. It might be by a simple writing.211 This, however, is now changed by statute in several states, and the execution must be by deed...
-Time Of Execution
When, from the object for which a power is created, or from express direction in the instrument creating the power, it must be exercised within a certain time, any execution after that time will be vo...
-Defective Execution
When a general power is defectively executed, equity will not aid the appointee, unless a valuable consideration has been paid,227 but, where there are defects in the execution of a special power, the...
-Compelling Execution
The execution of a power can be compelled only where the power is mandatory, or is a power in trust;231 that is, a power held in trust, without any discretion as to its exercise, and in which the done...
-Excessive Execution
The execution of a power may be excessive as to the object, as when, under a special power, estates are given to some who cannot 227 Schenck v. Ellingwood, 3 Edw. Ch. (N. Y.) 175; Bradish v. Gibbs, 3...
-Destruction Of Powers Same - destruction
201. Powers may be destroyed (a) By execution. (b) By death of one whose consent to the execution la required. (c) By alienation of the estate to which the power is appendant. (d) By release, ...
-Rule Against Perpetuities
202. No interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within 21 years after some life in being at the creation of the interest.259 It has ...
-Rule Against Perpetuities. Part 2
268 Beard v. Westcott, 5 Taunt. 393; Cadell v. Palmer, 1 Clark & F. 372. But see Mayor, etc., of New York v. Stuyvesant's Heirs, 17 N. Y. 34. 269 Gray, Perp. 225; Low v. Burron, 3 P. Wms. 262....
-Rule Against Perpetuities. Part 3
It is often stated that a contingent remainder cannot be limited to an unborn child of an unborn person. But this is believed to be inaccurate. It was founded on the exploded notion that there could n...
-Rule Against Accumulations
205. At common law the rents and profits of land could be directed to be accumulated for the period allowed by the rule against perpetuities for the vesting of estates, but in a number of states ...
-Chapter XII. Estates As To Number Of Owners-Joint Estates
206. Estates as to Number of Owners. 207. Joint Estates. 208. Joint Tenancies. 209. Tenancies in Common. 210. Estates in Co-parcenary. 211-212. Estates in Entirety. 213. Estates in Partnership. ...
-Estates As To Number Of Owners
206. Estates are divided according to the number of owners who are entitled to possession at the same time into,(a) Estates in severalty, and (b) Joint estates. Joint Estates 207. Joint estates ...
-Joint Tenancies Same - joint Tenancies
208. A joint tenancy is an ownership of land in community in equal undivided shares by virtue of a conveyance -which imports an intention that the tenants shall hold one and the same estate. The ...
-Joint Mortgagees
Many of the rules governing joint estates apply to those who hold land in the capacity of joint mortgagees. Under the common-law theory of mortgages, joint mortgagees are, after a strict foreclosure, ...
-Incidents Of Joint Estates
214. The rights of tenants of joint estates will be treated under the following heads: (a) Possession and disseisin (p. 340). (b) Accounting between co-tenants (p. 341). (c) Repairs and waste (p. ...
-Transfer Of Joint Estates
All tenants of joint estates except those holding in entirety 72 may convey all or part of their interests to a stranger without the consent of their co-tenants.73 But they cannot, by such conveyance,...
-Actions Affecting Joint Estates
For injuries to the possession of a joint estate or to rights growing out of possession, the co-tenants should sue jointly.79 Joint tenants at common law must join in an action affecting the title,80 ...
-Partition
215. Partition is the dividing of land held by the owners of joint estates into distinct portions, so that each may hold his share in severalty. 216. There may be a partition of all kinds of joint ...
-Chapter XIII. Incorporeal Hereditaments
217. Definition and Kinds. 218. Easements. 219. Creation. 220. By Grant. 221. By Prescription. 222. Classification. 223. Incidents. 224. Destruction. 225. Specific Easements. 220. Rights of ...
-Definition And Kinds
217. An incorporeal hereditament is anything, the subject of property, which is inheritable, and not tangible or visible. 217a. Incorporeal hereditaments in the United States are (a) Easements (p. ...
-Easements
218. An easement is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another foi a special purpose not inconsistent with the general property in the latter....
-Easements. Part 2
221. Ey Prescription-easements may be acquired by prescription by adverse user continued for the time required by the statute of limitations. At common law many easements were acquired by ...
-Easements. Part 3
34 Pearsall v. Post, 20 Wend. (N. Y.) Ill; Ackerman v. Shelp, 8 N. J. Law, 125. 35 Verona Borough v. Allegheny Val. R. R., 152 Pa. St. 368, 25 Atl. 518; Kelenk v. Town of Walnut Lake, 51 Minn. 381, 5...
-Rights Of Way Specific Easements
225. The folio-wing specific easements will be considered: (a) Rights of way (p. 359). (b) Highways (p. 361). (c) Light and air (p. 363). (d) Lateral and subjacent support (p. 365). (e) Party ...
-Incoupoueal Hereditaments
(Ch. 13 or the municipality.85 It has already been said that highways are not easements proper, because they are held in gross, and not appendant to any dominant estate.86 When a highway is only an in...
-Incoupoueal Hereditaments. Continued
100 The inconvenience caused must be appreciable. Back v. Stacey, 2 Car. & P. 465; Wells v. Ody, 7 Car. & P. 410; Arcedeckne v. Kelk, 2 Giff. 683. 101 Gerber v. Grabel, 16 111. 217 (but contra, Guest...
-Partition Fences
Partition fences are in many respects like party walls. They are usually erected one-half on the land of each, and the obligation to repair is the same as in the case of party walls.131 The duty to ma...
-Easements In Water - Subterranean Waters
Underground waters, when not flowing in a defined course,148 but existing merely as percolations, may be diverted,149 although by so doing the wells of adjoining landowners may be injured.150 Upon the...
-Surface Waters
Surface waters are such as do not flow in a regular channel.154 The cases are conflicting as to the duty of a lower owner to receive such waters onto his land,155 but it certainly does not exist in th...
-Eaves' Drip
The right to have water fall from the roof of one's building onto the land of another is an easement, and is called the right of eaves' drip. 160 This right may be acquired by prescription.161 ...
-Artificial Water Courses
As already stated, rights in water which has been brought upon land by artificial means differ in many respects from the rights which we have been discussing.162 For instance, an artificial water cour...
-Profits A Prendre
233. A profit a prendre is a right exercised by one man in the land of another, accompanied by a participation in the profits of that land. Profits a prendre have already been distinguished from ...
-Rents
234. Rent is a profit issuing out of land, which is to be rendered or paid periodically by the tenant. Rents are of the following kinds: (a) Rent service. (b) Rent charge. (c) Rent seek. 235. ...
-Franchises
At common law, franchises are heritable; but now they are usually held by corporations, and corporations can have no heirs. So, too, franchises are now usually granted for a term of years, and not in ...
-Chapter XIV. Legal Capacity To Hold And Convey Realty
237. Personal Capacity. 238. Infants. 239-240. Persons of Unsound Mind. 241-242. Married Women. 243-244. Aliens. 245. Corporations. ...
-Personal Capacity
237. Personal capacity to convey real estate Is, in general, the same as capacity to contract. The power to take and hold real estate is greater in some instances than the power to convey it. ...
-Infants
238. An infant's conveyances of his real property are voidable, not void. They may be ratified or disaffirmed by him after he reaches majority. At common law all persons were infants who had not ...
-Persons Of Unsound Mind
239. Conveyances by insane persons who are tinder guardianship are void, but, if not under guardianship, their conveyances are voidable only. 240. The same rules govern conveyances by intoxicated ...
-Drunkards
The disability of persons who are incapacitated to deal with their real property by reason of intoxication is much the same as that of insane persons. In fact, the rules to be applied are those which ...
-Married Women
241. At common law a married woman could not take land without her husband's consent, and her conveyances, except of her separate property, were absolutely void. 242. These disabilities have been ...
-Wills
By the common law a married woman has no power to dispose of her lands by will,45 but in equity such a power is recognized as to all property coming under the jurisdiction of the court.46 In many stat...
-Aliens
243. At common law, aliens could take real property, but their title could be divested by proceedings instituted by the officers of the government, called office found. 244. This disability has ...
-Corporations
245. The power of corporations to take and convey real property is regulated by their charters. The buying and selling of real property by corporations is a matter of corporate power, which in each ...
-Chapter XV. Restraints On Alienation
246. Kinds of Restraints. 247. Restraints Imposed by Law. 248. Restraints in Favor of Creditors. 249. Restraints Imposed in Creation of Estate. ...
-Kinds Of Restraints
246. Restraints on the power to alienate real property are of the following kinds: (a) Restraints imposed by law (p. 390). (b) Restraints imposed in favor of creditors (p. 392). (c) Restraints ...
-Restraints Imposed By Law
These were changed into estates in fee tail by the statute de donis. The tenants were thereby prevented from aliening their estates, as against their heirs or the lord, until Taltarum's Case, which, a...
-Restraints Imposed By Law. Continued
18 Gridley v. Bingham, 51 111. 153; Waterbury v. Sturtevant, 18 Wend. (N. Y.) 353. 19 Van Wyck v. Seward, 18 Wend. (N. Y.) 375; Potter v. Mcdowell. 31 Mo. 62; Hunters v. Waite, 3 Grat. (Va.) 26. 20 ...
-Chapter XVI. Title
250. Title Defined. 251. Acquisition of Title by State. 252. Acquisition by Private Persona. 253. Grant from the State. 254. ...
-Acquisition Of Title By State Title Defined
250. Title is the means by -which the ownership of real property is acquired and held. This is either (a) By descent, or (b) By purchase. The fact which in any case gives or creates ownership over ...
-Acquisition Of Title By State
251. Title is acquired by the state (a) By discovery, conquest, and treaty. (b) By confiscation and escheat. (c) By exercise of the right of eminent domain. (d) By ordinary transfer from ...
-Eminent Domain
The acquisition of land by the state under the power of eminent domain is subject to the same rules as acquisition in this way by private persons and corporations, and will be treated of in that conne...
-Acquisition By Private Persons
252. Title is acquired by private persons (a) By grant from the state (p. 401). (b) By conveyance from individuals (p. 405). (c) By estoppel (p. 450). (d) By adverse possession (p. 456). (e) By ...
-Grant From The State
253. Land owned by the United States and the states is conveyed to individuals by instruments of conveyance called patents. Titles held by private persons are, of course, originally derived from the ...
-Public Land System
The lands owned by the United States are surveyed and sold according to the following plan, and states which own public lands follow the plan of the federal government very closely:13 The lands are di...
-Conveyances
254. The instruments by which title is conveyed are of four kinds: (a) Common-law conveyances (p. 405). (b) Conveyances operating under the statute of uses (p. 409) (c) Modern statutory ...
-Feoffment
Feoffments, though little used in modern times, were at common law, in early times, almost the only form of conveyance used for 37 2 Bl. Comm. 310, 324. The transfer of estates in possession. Feoffm...
-Gift
Gift was the term applied to a conveyance creating an estate ;in fee tail. The only difference between a gift and a feoffment was that the former, while accompanied by the same ceremony :as a feof...
-Grant
Grant was the name of the conveyances which were proper for the transfer of incorporeal interests in land,43 which were said to lie in grant, and not in livery, the latter being the term used to...
-Lease
A lease is the instrument used to create estates less than freehold, and usually contains a reservation of rent. At common law, however, the term was applied to conveyances of particular estates as fo...
-Exchange
An exchange is a mutual grant of equal interests, the transfer of one estate being the consideration for the transfer of the other. Exchange applies to transfers of estates in expectancy as well as ...
-Exchange. Continued
Bargain and Sale. The conveyance called a bargain and sale was the same as a covenant to stand seised, except that a valuable consideration was required for its validity.70 Many of the cases hold tha...
-Certificates Of Title
When a tract of land is registered, a certificate of title is made out and kept in the office of the registrar, and a duplicate given the owner. Each estate in the land is represented by a separate ce...
-Transfers Of Registered Land
After land has been registered, any of the ordinary forms of conveyance purporting to transfer the title operate only as contracts to convey, and as authority to the registrar to transfer the title.90...
-Indemnity Fund
When land is first registered, one-tenth of one per cent, of its value must be paid to the registrar, to provide an indemnity fund, out of which the county is to reimburse any person sustaining damag...
-Names Of Parties
The name of the grantor should be stated In the deed, thongh some cases hold that the mere signing of the grantor's name is sufficient.101 If the grantor's name is mentioned in the deed, his signing t...
-Granting Clause
In order that any deed may be operative, it must contain words of conveyance sufficient to transfer an estate from the grantor to the grantee.110 The technical words which are used in connection with ...
-Exceptions
An exception is something reserved from the operation of the deed; that is, it is something which would otherwise pass by the description of the lands to be conveyed.113 For a valid exception, 105 Th...
-Reservations
A reservation is a right created out of the land granted, such as the reservation of a rent. The word reservation, however, need not be used if the intention is otherwise clear.116 An exception, so ...
-Habendum
The habendum of a deed is merely formal, and is that part of the conveyance which commences with the words to have and to hold. 114 Thompson v. Gregory, 4 Johns. (N. Y.) 81; Thayer v. Torrey, 37 N....
-Monuments
Monuments are permanent landmarks, established for the purpose of indicating boundaries.147 They may be either natural or artificial.148 Examples of natural monuments are trees, rocks, rivers, etc. Ar...
-Quantity
When the quantity of land to be conveyed is given in the deed, it will not control either monuments or courses or distances,167 though it may aid a description otherwise defective, and quantity may be...
-Appurtenances
The old form of a deed adds, after the description of the lands or tenements conveyed, words like the following: With all the privileges and appurtenances thereto belonging or in any way appertaining...
-What Writing Necessary
Deeds are to be written on paper or parchment,176 and should be written with ink, though possibly a deed written with a pencil would be valid.177 The chief desideratum is durability. Part of the deed ...
-Consideration
No consideration is necessary for modern statutory conveyances.179 Bargain and sale deeds, however, require, as we have seen,180 a consideration to make them valid, though the requirement has been gre...
-Date
A date is not strictly necessary for the validity of a deed,187 and, when used, may be placed in any part of the instrument. A deed takes effect from the time of delivery, and prima facie the date giv...
-Alterations
A deed must be completely written when it is delivered, and for this reason any alterations or interlineations in the instrument must be made before delivery,195 though they may be added after the dee...
-Reading
A party to a deed, who can read, is conclusively presumed to know the contents of the instrument, though he did not actually read it before it was executed.202 If the grantor is blind, illiterate, or ...
-Sealing
At common law a seal was necessary in the execution of a valid deed,204 but in many states this requirement has been abolished.205 A. seal is defined to be an impression on wax or wafer or some other...
-Signing
At common law it was not necessary that a deed be signed, though this is now required by the statute of frauds.214 Where the statute requires the deed to be subscribed, the signature must be written a...
-Requisites Of Deeds
Same - Power of Attorney. A power of attorney to execute a deed is an authority given a person to act in behalf of the grantor in making a conveyance of land. Such a person is an attorney in fact. Fo...
-Delivery In Escrow
A deed may be delivered in escrow; that is, into the keeping of a third person to be delivered to the grantee on the performance of some condition.265 When there is a delivery in escrow, and the condi...
-Delivery In Escrow. Continued
280 Bass v. Estill, 50 Miss. 300; Manaudas v. Mann, 14 Or. 450, 13 Pac. 449. 281 l Devi. Deeds, 468. For method of proving deed where grantor is dead or refuses to acknowledge It see 1 Stim. ...
-When Broken
As to when the covenant of seisin is broken the cases are conflicting, most courts holding that it must be broken at the time the 322 Mecuni v. Railroad Co., 21 111. 533; Clopton v. Bolton, 23 Miss. ...
-When Broken. Continued
343 Clark v. Swift, 3 Mete. (Mass.) 390; Cathcart v. Bowman, 5 Pa. St. 317; Boyd v. Belmont, 58 How. Prac. (N. Y.) 513; Mitchell v. Warner, 5 Conn. 497. But see M'crady's Ex'rs v. Brisbane, 1 Nott. & ...
-Special Warranty
The covenant of warranty so far considered is one of general warranty, but the covenant may be limited in its operation to the claims of particular persons. A covenant of special warranty is many time...
-Special Warranty. Part 2
280) subsequently acquired by the grantor to the one entitled to the estoppel,389 and not merely to bind the title in the hands of the owner so that he cannot set it up. Some cases hold that ...
-Special Warranty. Part 3
Estoppel by Deed. No one can be estopped by deed who has not power to make a valid deed.402 When title arises through estoppel by deed, the grantor is estopped to deny that he had the interest which ...
-Adverse Possession
281. One who disseises the owner of land, and holds it adversely for the period prescribed by the statute of limitations, acquires title to the estate of the disseisee. Acquisition of title by ...
-Constructive Possession-color Of Title
The possession which we have been discussing in the last section applies only to the tracts of land which are actually held by the disy. 26, 33 N. E. 822; Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220; ...
-Constructive Possession-color Of Title. Part 2
462 Word v. Box, 66 Tex. 596, 3 S. W. 93; Bailey v. Carleton, 12 N. H. 9. 463 Grimes v. Ragland, 28 Ga. 123; Morris v. Mcclary, 43 Minn. 346, 46 N. W. 238. 464 Humes v. Bernstein, 72 Ala. 546. 465 ...
-Constructive Possession-color Of Title. Part 3
482 Hall v. Stevens, 9 Mete. (Mass.) 418; Long v. Mast 11 Pa. St. 189; Clarke v. Mcclure, 10 Grat. (Va.) 305; Allen v. Allen, 58 Wis. 202, 16 N. W. 610; Gris-wold v. Little, 13 Misc. Rep. 281, 34 N. ...
-Length Of Possession Necessary
The leng: h of adverse possession necessary to give title varies greatly under the statutes of the several states. In a few states an absolute limit is fixed, beyond which mental unsoundness will not ...
-Abandonment
The loss of title by abandonment applies strictly and only to incorporeal hereditaments, and in that connection has already been treated of.520 Title to corporeal property can be lost through abandonm...
-Accretion
282. Where soil is gradually deposited on the shore of a body of water, the land so formed belongs to the riparian owner on whose property the deposit is formed. This is called accretion. We have ...
-Devise
283. The title to real property may be transferred by devise subject to the folio wing conditions: (a) The will must be properly executed by a competent testator (p. 473). (b) It must contain words ...
-Operative Words In Wills
The words generally used in a will to dispose of real estate are give and devise, but any other words which show the intention of the testator are sufficient.540 The words of limitation which are ne...
-What Law Governs Devises
Wills affecting real property are governed by the lex loci, not by the law of the place where the testator is domiciled at the execution of the will or at his death.552 The same rule applies to 544 R...
-Lapsed Devises
By the rales of the common law, if a devisee dies before the testator, the devise lapses, and cannot be claimed by the devisee's heirs. It goes to the heir of the testator, and not to the residuary de...
-Descent
284. The title to the real property of an intestate descends to certain persons designated by law, called heirs. The acquisition of title by descent is governed by the following rules: (a) Only ...
-Posthumous Children
Posthumous children are those who, at the death of their father, are en ventre sa mere, that is, those who are conceived but not born. By the early common law such children could not inherit,585 but t...
-Illegitimate Children
Illegitimate children are those who are born out of lawful wedlock. At common law such a child is the heir of no one, and can have no heirs save those of his body.590 Now, in most states, an 582 Ante...
-Advancements
By the doctrine of advancements, when a lineal heir receives a gift or devise by way of portion or settlement in life, the amount so received is deducted from the share which that heir would otherwise...
-Canons Of Descent
At an early period in the history of the common law certain rules of inheritance, called the canons of descent, were formulated by Lord Chief Justice Hale, and, though these canons have been much chan...
-Escheat
We have seen what provisions the law makes for the division of the lands of one who dies intestate, there being in most states rights of dower or curtesy in the surviving wife or husband, and the rema...
-Judicial Process
285. Title to real property may be acquired by virtue of judicial process,(a) By conveyances under licenses (p. 486). (b) By conveyances under decrees (p. 488). (c) By tax sales (p. 490). (d) By ...
-Conveyances Oy Personal Representatives
In the administration of the estate of a decedent it often becomes necessary, because of the failure of the personal estate, to sell part of the real property to satisfy the claims of creditors and pa...
-Conveyances Of Settled Estates
Closely akin to sales of lands of persons under disability are sales of settled estates; that is, when the alienation of land in the ordinary ways is impossible because the whole ownership is divided ...
-Specific Performance
When an owner of land has made a binding contract to convey real property, and then refuses to execute a conveyance, a court of equity will compel him to do so by a decree for specific performance.635...
-Sales On Execution
At common law a man's lands were not liable to be sold for his debts,638 but now, in all of our states, lands can be sold for debts. Before this can be done, however, a judgment must be obtained,639 a...
-Ministerial Sale
In most states summary methods of proceeding exist for the sale of lands for unpaid taxes which authorize the proper officers to advertise the land for sale and sell it after a certain period of delin...
-Judicial Sale
In some states the method of selling land for taxes by summary proceedings is not employed, but the collector of taxes is required to bring an action in a court before any power is acquired to sell th...
-Tax Titles
At the time of the sale the purchaser is given a certificate of purchase. The statutes usually provide that the rights of a purchaser under a certificate may be assigned.662 Until the period of redemp...
-The Hornbook Series
Comprises elementary treatises on all the principal subjects of the law. The books are made on the same general plan, in which certain special and original features are made prominent. The Hornbook ...
-Eaton on Equity
1901. 734 pages. $3.75 delivered. By James W. Eaton, Editor 3d Edition Collier on Bankruptcy, Co-editor American Bankruptcy Reports, Eaton and Greene's Negotiable Instruments Law, etc. Table Of ...
-Hughes on Admiralty
1901. 504 pages. $3.75 delivered. By Robert M. Hughes, M. A. Table Of Contents The Origin and History of the Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by ...
-Appendix
1. The Mariner's Compass. 2. Statutes Regulating Navigation, Including: (1) The International Rules. (2) The Rules for Coast and Connecting Inland Waters. (3) The Dividing Lines between the High S...
-The Hornbook Series of Elementary Treatises On Subjects Of The Law
The Hornbook Series of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. A succinct statement of leading principles in blackletter ...









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