The words in the form, following the recital of the consideration, "do hereby grant and release unto the party of the second part * * * and assigns forever," constitute what is known as the granting clause. It is by this clause that the interest or title is transferred, and care must be taken to see that this clause is properly worded. If for example the interest to be given by the grantor to the grantee is an estate in fee simple the words "to the party of the second part, his heirs or assigns forever" should be used, and appropriate words for the other estates if one of them is to be conveyed. Any instrument under consideration is always construed against its maker, and the grantor is presumed to intend to grant a fee simple estate unless he expressly limits it either in this clause or the habendum clause. This rule has one exception: as to a grantor who has an individual estate as well as a representative right to sell. As to him it is presumed that he intends to convey all his individual right but only such representative rights as he expressly states.

Description

Any description which unquestionably identifies the property is sufficient for the deed. It is not usual to use street number descriptions, it being desirable to identify the property with more particularity. A description by street number is appropriate in a contract, since the contract is normally consummated within a short time. A deed on the other hand remains a permanent record and becomes a part of the chain of title. Consequently the description used should, if possible, be one that may be identified with reasonable ease many years later. It is for this reason that street numbers which may change as buildings are altered or demolished, and monuments such as fences, trees and stones which may be removed are inadvisable.

The various forms of descriptions have been fully discussed in the chapter on contracts. There are however certain precautions which should be observed in drawing the description for a deed. The form of descriptions should never, except upon expert advice, be changed. Much trouble has resulted from failure to observe this rule. The seller should always use the same description as that in the deed by which he took title. If for any reason a change in the form of description is made, it is best to follow the description with a statement that the premises described are the same as those conveyed to the seller by his grantor, naming him, by a certain deed, reciting its date and the date and place of record. In fact, since errors sometimes occur, this statement is not out of place in any deed, and being used, corrects any error in the description, by reference to the former deed.

As said before any description is good which unquestionably identifies the property. If, however, the description is so indefinite that it is impossible to definitely fix the property intended to be conveyed, the deed is void for uncertainty: As for example a deed conveying "any one of ten lots." It cannot be told what lot is intended to be conveyed. No amount of explanation would point to any one particular lot as the one intended.

An ambiguity in the description will not of necessity make the deed void. Ambiguities may be patent or latent. If patent, that is, if the ambiguity appears upon the face of the instrument, resort may be had to evidence outside the instrument to discover what was the intent of the parties. For instance the description may be of "the most easterly two of my lots on the south side of X street." This description as it reads is very ambiguous, yet it is easily ascertainable by an examination of the public records just where the grantor's lots are and which are the most easterly two. The patent ambiguity may be caused by an inconsistency in the elements of the description. Such would be a description by metes and bounds of a house on X street followed by a recital that it is the property known as 125 Y street. Here is a clear inconsistency yet the ambiguity appears on the face of the deed and the deed is good, if explanatory evidence, indicating the property intended, can be procured. As to latent ambiguities the rule is quite different. These are such as do not appear upon the face of the instrument; the description being apparently definite and clear. The parties may have intended to transfer X, but by error a description of Y was put in the deed. The deed on its face shows no ambiguity whatever. Such a deed may be reformed by an action brought to correct it or the grantee may compel the grantor to give a correct deed. However it must be borne in mind that those who come after are entitled to rely upon instruments which have been recorded. If the deed is ambiguous on its face, anyone examining the records becomes aware of it, and can guard against it. But if the deed appears clear the public is entitled to rely on it, even though it may be quite contrary to the intentions of the parties to it. Consequently if anyone has acted in reliance upon such a deed, and would be put to a loss by the parties changing or explaining it, the deed must stand without change or explanation of any kind.