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. Am. St. Law, art 159.
282 Southerland v. Hunter, 93 N. C. 310; Ferguson v. Kingsland, Id. 337.
283 I Dembitz, Land Tit. 379; Richmond v. Voorhees, 10 Wash. 310, 88 Pac. 1014; Chester v. Breitling (Tex. Civ. App.) 30 S. W. 464.
438 title. (Ch. 16 denee.284 Certain officers are designated before whom acknowledgments may be taken; but if the person who takes the acknowledgment is a de facto officer the acknowledgment is sufficient.285 An officer taking an acknowledgment must not, however, be a party to the deed,286 though he may be a relative of one of the parties without invalidating the acknowledgment.287 An acknowledgment must, in some states, show the place where it is taken,288 and the certificate of acknowledgment should also show the official character of the officer taking it.289 The certificate of acknowledgment must, in general, contain the name of the grantor,290 and must state the facts which constitute the acknowledgment,291 and a certificate that the deed was "acknowledged" is not sufficient.292 The signing of the deed need not be in the presence of the officer who takes the acknowledgment. The officer is not allowed to impeach his certificate.293 In some states the certificate of the officer is prima facie evidence only of the facts stated therein.294 An officer taking an acknowledgment may correct the certificate at any time to conform to the actual facts of the acknowledgment.295
284 pierce v. Brown, 24 Vt. 165; Johnson v. Mcgehee, 1 Ala. 186. An acknowledgment bearing date earlier than the date of the deed is good. Gest v. Flock, 2 N. J. Eq. 108.
285 Woodruff v. Mcharry, 56 111. 218; Brown v. Lunt, 37 Me. 423.
286 Groesbeck v. Seeley, 13 Mich. 329; Withers v. Baird, 7 Watts (Pa.)' 227; Wilson v. Traer, 20 Iowa, 231.
287 Lynch v. Livingston, 6 N. Y. 422; Kimball v. Johnson, 14 Wis. t!74. 288 Willard v. Cramer, 36 Iowa, 22; Hardin v. Osborne, 60 111. 93.
289 Lake Erie & W. R. Co. v. Whitham, 155 111. 514, 40 N. E. 1014; Final v. Backus, Is Mjch. 218; Johnston's Lessee v. Haines, 2 Ohio, 55.
290 Martind. Con v. (2d Ed.) § 259. But see Wilcoxon v. Osborn, 77 Mo. 621; Dail v. Moore, 51 Mo. 589.
291 Carpenter v. Dexter, 8 Wall. 513; Calumet & C. C. & D. Co. v. Russell, 68 111. 426; Myers v. Boyd, 96 Pa. St. 427.
292 Gin v. Fauntleroy's Heirs, 8 B. Mon. (Ky.) 177; Flanagan v. Young, 2 Har. & Mch. (Md.) 38. But see Mccormack v. James, 36 Fed. 14.
293 Central Bank v. Copeland, 18 Md. 305; Allen v. Lenoir, 53 Miss. 321. And see Kranichfelt v. Slattery, 12 Misc. Rep. 96, 33 N. Y. Supp. 27.
294 Jackson v. Schoonmaker, 4 Johns. (N. Y.) 161; Edgerton v. Jones, 10 Minn. 429 (Gil. 341); Lennon v. White (Minn.) 63 N. W. 620; Hutchison v. Rust, 2 Grat. (Va.) 394.
295 Hanson v. Cochran, 9 Houst. 184, 31 Atl. 880; Jordan v. Corey, 2 Ind. 385. But see Newman v. Samuels, 17 Iowa, 528.
268. Witnesses-in some states one or two disinterested witnesses to a deed are required by statute
(a) For the validity of a deed, or,
(b) In the absence of acknowledgment, to entitle it to record.
At common law no witnesses were necessary to the validity of the deed.296 But now, by statute, in many states, they are required. In some states witnesses are necessary to the validity of a deed, even between the parties, while in others they are required only when there is no acknowledgment.297 In some states only one witness is required, but in more two are necessary.298 Some courts hold that deeds not witnessed as required by statute will support an action for specific performance.299 The witnesses required for deeds are such as are competent to testify.300 The witnesses must not be interested in the conveyance at the time they act as witnesses,301 though an interest subsequently acquired will not disqualify them.302 Where there are several grantors of a joint estate, they are not competent witnesses for each other.303 The witnesses must sign at the grantor's request,304 and are competent to testify as to his mental soundness at the time the deed is executed.305
269. Registry-a deed must be registered or recorded in some public office provided by statute
(a) To give it priority over other conveyances.
(b) To give it validity, in some states.
296 2 Bl. Comm. 307.
297 l stim. Am. St. Law, §§ 1565, 1566. And see Price v. Haynes, 37 Mich. 487; Genter v. Morrison, 31 Barb. 155. 298 Carson v. Thompson, 10 Wash. 295, 38 Pac. 1116.
299 Day v. Adams, 42 Vt 510.
300 Frink v. Pond, 46 N. H. 125; Winsted Sav. Bank v. Spencer, 26 Conn. 195; Third Nat. Bank v. O'brien, 94 Tenn. 38, 28 S. W. 293.
301 Winsted Sav. Bank v. Spencer, 26 Conn. 195.
302 Carter v. Corley, 23 Ala. 612.
303 Townsend v. Downer, 27 Vt. 119.
304 Pritchard v. Palmer, 88 Hun, 412, 34 N. Y. Supp. 787; Tate v. Lawrence, LI Heisk. (Tenn.) 503.
305 Brand v. Brand, 39 How. Prac. (N. Y.) 193. And see generally, as to statutes requiring attestation, 1 Dembitz, Land Tit. 348.
440 title. (Ch. 16
Recording laws, and their application to deeds and other conveyances, have already been discussed in connection with mortgages.306
270. Covenants for title are contracts contained in a conveyance by which the grantor binds himself to the grantee as to certain facts in connection with the title to the land conveyed. The usual covenants are:
(b) Against incumbrances (p. 444).
(c) Of warranty and quiet enjoyment (p. 446).
(d) For further assurance (p. 449).
Express and Implied Covenants.
Covenants are contracts, and their form and requisites are governed by the law relating to that subject.307 If the deed in which the covenant is contained is void, the covenant is void.308 A covenant cannot enlarge the estate conveyed in the instrument which contains the covenant, but a covenant may, in some instances, operate in the same way as words of limitation.309 Covenants in deeds are either express or implied. The word "give" in a common-law feoffment operated as a covenant of warranty during the grantor's life, but was not binding on his heirs.310 It has already been seen 311 that implied covenants are raised by the use of the words "grant and demise" in a lease. So in the common-law exchange of lands there are implied covenants of warranty by each party to the conveyance.312 Deeds operating under the statute of uses raise no implied covenants.313 In some of our states implied covenants do not exist at all, while in others they are expressly provided for by statute; for instance, in several states it is provided that the words "grant, bargain, and sell" raise implied covenants of seisin, against incumbrances, of warranty, and for quiet enjoyment.314 If express and implied covenants are both contained in the conveyance, the express covenants control.315
306 Ante, p. 218.
307 Clark, Cont. 72.
308 Scott v. Scott, 70 Pa. St. 248.
309 Terrett v. Taylor, 9 Cranch, 53; Shaw v. Galbralth, 7 Pa. St. Ill; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Winborne v. Downing, 105 N. C. 20, 10 S. E. 888.
310 l Dembitz, Land Tit. 434.
311 Ante, p. 138.
312 Goimes v. Redmon, 14 B. Mon. (Ky.) 234. But see Dean v. Shelly, 57 Pa. St. 427; Walker v. Renfro, 26 Tex. 142. As to implied warranty In partition, see ante, p. 346.
Reed, and Personal Covenants.
Covenants are also classified as real and personal.316 What such covenants are in the case of leases has already been discussed,317 and the same principles apply to covenants for title; that is, they are real, and run with the land, when they affect its value, and when their performance is made a charge upon the land.318 Personal covenants are those which bind only the covenantor and his personal representatives.319
Independent and Dependent Covenants.
Dependent covenants are those which cannot be enforced without the performance by the covenantee of some condition precedent.320 Independent covenants are those which one may enforce without first performing the obligations to which he is bound.321
313 Allen v. Say ward, 5 Me. 227.
314 1 Stim. Am. St Law, § 1501.
315 Burr v. Stenton, 43 N. Y. 462; Vanderkarr v. Vanderkarr, 11 Johns. (N. Y.) 122. But see Funk v. Voneida, 11 Serg. & R. (Pa.) 100.
316 See Clark, Cont. 545.
317 Ante, p. 336.
318 Suydain v. Jones, 10 Wend. (N. Y.) 180; Wead v. Larkln, 54 111. 4S9; First Nat Bank v. Security Bank (Minn.) 63 N. W. 264; Thomas v. Bland, 91 Ky. 1, 14 S. W. 955; Bean v. Stoneman, 104 Cal. 49, 37 Pac. 777, aud 88 Pac. 39; Allen v. Kennedy, 91 Mo. 324, 2 S. W. 142; Tillotson v. Prichard, 30 Vt. 94, 14 Atl. 302. Building restrictions run with the land. Muzzarelli f. Hulshizer, 163 Pa. St. 643, 30 Atl. 291.
319 Cole v. Hughes, 54 N. Y. 444; Indianapolis Water Co. v. Nutte, 126 Ind. 373, 26 N. E. 72; Brewer v. Marshall, 18 N. J. Eq. 337; Lyford v. Rail-toad Co., 92 Cal. 93, 28 Pac. 103.
320 Tompkins v. Elliot 5 Wend. (N. Y.) 496; Cunningham v. Morrell 10 Johns. (N. Y.) 203; Tileston v. Newell, 13 Mass. 410; Mccrellsh v. Churchman, 4 Rawle (Pa.) 26.
321 Goodwin v. Holbrook, 4 Wend. (N. Y.) 377; Couch v. Ingersoll, 2 Pick. (Mass.) 300.
442 title. (Ch. 16
Wherever possible, courts will construe covenants to be dependent rather than independent, and will not permit a plaintiff to recover damages for the breach of a covenant without first showing performance on his part of all the obligations resting upon him322
271. Covenant Of Seisin-a covenant of seisin is that the grantor has the very estate in quantity and in quality which he purports to convey.
272. When Broken - As to when the covenant of seisin may be broken, there is a conflict.
(a) In most states it is considered a covenant of lawful seisin, and can be broken only at the time of the conveyance.
(b) In some states it is considered as a covenant of indefeasible seisin and can be broken at any time.
273. How Broken - The covenant of lawful seisin is broken when the grantor is not in lawful possession at the time of the conveyance. The covenant of indefeasible seisin is broken by acts which would be a breach of a covenant of warranty.
A covenant of seisin is an assurance by the grantor to the grantee that there is a right to convey the estate which is purported to be conveyed by the deed.323 At common law one who had been disseised of his land had no right to convey it, though the one who had disseised him had.324 In some of our states a disseisee now has power to convey.325