Sec. 282. In case an executor, administrator or guardian enter into an agreement for the investment of the funds belonging to an estate, or to a ward, the agreement should also be made subject to the approval of the Court having charge thereof; otherwise, the executor, administrator or guardian is personally liable. The application to the Court takes the form of a petition (see Form No. 137) which must be verified upon oath by the petitioner; the order of the Court, made upon hearing, directs that the petition be granted; and a certified copy of the order must be filed for record, with the deed, lease or mortgage; and the consideration mentioned in the instrument of conveyance, must be the same as that mentioned in the order of the Court. In this instance, a nominal consideration (see Text Book, page 58) will not be acceptable.
Sec. 283. In California, and in the Western states generally, religious corporations not organized for pecuniary profit are required to petition the Superior Court for permission to sell or mortgage property. Notice of intention to sell or to mortgage must be published as directed by the Court, and upon hearing of the matter, any member of the corporation may oppose the granting of the order. An agreement to borrow money from such a corporation, or for the purchase of its property, should contain a clause to the effect that the same is made subject to the confirmation of the Court.
Sec. 284. In states where the wife is entitled to dower, the contract should contain a clause providing for release of dower. The release of the wife's contingent right to dower is made to the party to whom the husband conveys; it cannot be made to the husband himself nor to a stranger. The release must be by grant deed, but in some of the states the mere signing by the wife of the husband's deed is sufficient. A homestead (see Sec. 125) may be released by an abandonment of homestead (see Form No. 59) or by both husband and wife executing the deed of conveyance.
Sec. 285. The tendency in conveyancing at the present time is in the direction of brevity and simplicity. Some conveyancers still use "enfeoff" and "aliene," and the rolling of these and other fine phrases under the tongue with suitable intonation impresses the ordinary mortal that by means of that particular instrument the thing has been everlastingly done, finished, completed, effected, accomplished, performed, executed, achieved, fulfilled, perpetrated and consummated. On the other hand, persons who are not accustomed to lengthy instruments, often exclaim: "My, what a long paper!" In fact, if one wishes to secure a right of way from a farmer, he should make the instrument as brief as possible, as the tiller of the soil thinks that a lengthy paper, even though it be no more binding than a short one, has some secret "hitch" concealed in its sinuous folds. In any written instrument, wherever figures are used, the same should also be written in words; as, for example: Twenty-three and 53-100 Dollars ($23.53); Lot Number 36 (thirty-six), Township Four (4), North, etc.
Sec. 286. As stated in Section 63, page 31, of Text Book, certain contracts are required by law to be in writing. The laws of California also provide that an agreement for the sale of goods, chattels or things in action, at a price of not less than $200, unless the buyer accepts or receives part of such goods and chattels or the evidences, or some of them, of such things in action, or pays at the time some part of the purchase price, must be in writing; but when a sale is made at auction an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of the sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum. An agreement which, by its terms, is not to be performed in the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make provision for any person by will, must be in writing.
Sec. 287. Any contract not required by law to be in writing may be made with the same force and effect as if in writing. Prudent foresight and the liability of the impressions received on the memory to become dim by lapse of time, and the tendency of each individual to take the view most favorable to his own interests when questions arise regarding the meaning of a verbal contract, would indicate that the only safe rule is to reduce all contracts to writing. The execution and delivery of a written contract, whether the law requires it to be in writing or not, supersedes all negotiations which preceded or accompanied the execution of the instrument.
Sec. 288. In addition to the written instruments ordinarily employed, the broker will have occasion from time to time to use other supplementary written evidences in connection with some transactions. Every written instrument, such as a contract, option, etc., should be sufficient in itself to confer all of the rights that the purchaser or option-holder supposed he was obtaining, and the value of having those instruments carefully drafted and adequate for the purpose intended will be realized only after loss has occurred through the use of defective or insufficient writings. In this connection, attention is called to Forms Nos. 113 to 117, both inclusive, relating to an option taken under the following circumstances: A broker submitted to the owner an option, substantially in the form of No. 112, which provides for the owner furnishing an unlimited certificate of title (No. 47) showing the premises free and clear of incumbrances. At the time of signing the option, the owner did not inform the broker, nor did the broker know, that the premises were incumbered by an easement in favor of the city, in which the premises were situated, for a right of way for a pipe line. The broker sold the premises at a profit of about $2,000, and agreed with the purchaser to furnish a deed free and clear of incumbrances. The transfer was placed in escrow with a title company. (See Lesson on Escrows.) When the title company were about to write the certificate of title, they requested the purchaser to waive in writing the easement, and this was the first notice the purchaser had that the premises were incumbered by an easement. The purchaser, thereupon, declined to take the premises with the easement. In this transaction, as is the case in many sales of real estate through brokers or option-holders, the owner and the purchaser had not seen each other at all, all negotiations between the parties having been conducted by the broker. In such a case it is advisable for the broker to have written evidence of every step in the transaction in order to show that he is acting in good faith. Upon the refusal of the purchaser to take the premises because of the incumbrance, the broker had the purchaser sign Form No. 113, and he presented this, together with Form No. 114, to the owner. Upon ascertaining that the owner would clear the incumbrance from the premises, he then advised the purchaser of the fact as per Form No. 115. When the owner had obtained and filed his deed from the city, quit-claiming the incumbrance to him, the broker then had the title company write up a certificate of title, showing the premises free of incumbrances, and he tendered such certificate to the purchaser with a letter as per Form No. 117. In instances of this kind, it is necessary for the broker to be on the alert and safeguard every step in the negotiations by a writing, if he wishes to keep the parties in line. It is not probable that any broker who reads these lines will have a case precisely similar to the foregoing, and these suggestions and forms are offered merely as thought-savers and time-savers.