The phraseology of a deed conveying the life estate to one person, with the remainder to another, would be as follows:
"To Have and to Hold all and singular, the above granted premises, together with the appurtenances, and every part thereof, unto the said Pascal Irwin, and his assigns, for and during the natural life of the said Pascal Irwin, and upon his death, then unto Alphonse Irwin, his heirs and assigns, forever."
(i) Conditions in a deed relate to the title or to the mode of en-joying the estate. When set forth in the deed, they are called express conditions. A condition precedent is one which must happen or be performed before the estate can vest. A condition subsequent is one upon the failure of which an estate already vested may be defeated. Non-performance of a condition precedent prevents the estate from vesting. Nonperformance of a condition subsequent gives the grantor, or his heirs, the right to enter and defeat the estate.
Where a grantor conveys property on which he has given a prior mortgage, it becomes necessary in the deed to bind the purchaser to assume and pay the mortgage. Deeds are construed most strongly against the grantor, and, unless the purchaser agrees to assume the mortgage, no implied obligation arises on his part to do so. If the purchaser should be unable to pay the mortgage, and it should be foreclosed, and the proceeds of sale should be insufficient to pay the debt, a deficiency judgment might be rendered against the grantor.
See also Form No. 5, where restrictions or conditions as to the value of the improvements, and the distance the same are to be placed from the front line of the premises, are provided for.
(j to p) Covenants are of two kinds, Personal and those Running with the Land.
(1) Personal Covenants, or Covenants of Title, are:
Right to Convey;
Against Grantor's Own Acts;
(2) Covenants Running with the Land, or Covenants relating to
That Vendor Will Warrant and Defend;
(j) The Covenant of Seisin implies that the grantor is in possession of the land. Possession may be actual or constructive. Actual possession is where the owner or party entitled to possession actually occupies or resides upon the land. In constructive possession, the land, although the owner or person entitled to possession does not live upon it, is, in contemplation of law, in his possession. The owner is deemed to be constructively in possession, although neither he nor any one else lives upon the land.
(i) A Covenant Running with the Land is a condition inserted in a deed by the grantor, binding the grantee to do something upon, or to abstain from some prohibited use of, the laud conveyed. A common restraint or restriction in modern times is against the erection of buildings of a certain height or kind, or against the carrying on of offensive trades. If the grantor, or his heir, enters for breach of the condition, and terminates the estate of the grantee, all conveyances and incumbrances made subsequent to the date of the deed containing the condition, are, so far as they affect the premises, thereby destroyed. The rights of the grantee, and of his grantees and mortgagees, in the premises, are as if they had never existed. (Curwen on Abstracts.)
(r) The name of the grantor should be set forth correctly at the beginning of the deed, and the deed should be signed accordingly. If a man should sign ordinarily as "J- S. Williams," and his name should be inserted in the body of the deed as "John S. Williams," John being his given name, he should so sign. If the grantor is unable to write, his name can be signed to the deed by some other person, and the grantor can make his mark, which should be witnessed by some one who saw the grantor make the mark. The signature of the grantor should be written opposite the printed seal on the deed. In some of the States and in England, a scroll for a seal will not be accepted; a wafer or impression upon wax is required. The witness clause, where the signature is to be by an attorney in fact, is as follows:
"In Witness Whereof, the said party of the first part has hereunto set his hand and seal, by James Wilson, his attorney in fact, the day and year first above written."
Henry Hudson. By James Wilson,
His Attorney in Fact.