CHAPTER LXI THE FUNCTION OF THE LAWYER IN REAL By ALEXANDER E. CROWLEY 1 The more important points which require the attention of an attorney in the course of a real estate transaction are here emphasized in the hope that the suggestions made will be found helpful to the layman and to members of the legal profession. Naturally the layman is cautioned against attempting to act as his own lawyer, but in perusing the information given he can get some idea of the intricate questions which must be solved by an attorney, and he may, so to speak, obtain some idea of what goes on behind the scenes. But in order to see that his rights are fully protected, the layman, whether he be the seller or the purchaser, should on every occasion be represented by an attorney. Even in the case of attorneys, years of study and practical experience are required before they are fully capable of passing upon every possible question which may arise. Hence, real estate brokers should avoid drawing contracts, deeds, mortgages, or other instruments which affect the title to real estate, and by all means they should not undertake to close titles. They should advise the respective parties to engage 1 Alexander E. Crowley, New York, N. Y., graduated from New York University Law School in June 1906, with the degree of LL.B., and in 1907, received from the same university the degree of LL.M. From New York University School of Commerce, he received the degree of B.C.S. Admitted to the bar of the State of New York, in November, 1907, and has practiced law in New York City since that time. Admitted by the Appellate Division of the Supreme Court, First Department, in April, 1918, as a Licensed Official Examiner under the Torrens Registration Law. Lecturer on Real Estate, Real Estate Law and Practice, and Insurance, in the Knights of Columbus Evening Schools, since 1921. an attorney. The broker's failure to note some technical error may cause irreparable damage to one of the parties to the transaction, and, incidentally, harm his own reputation as a sound and careful broker. The attorney usually represents either the seller, more often called the "vendor," or the purchaser, generally called the "vendee." It is very seldom that he is employed by both parties. Therefore, his functions may be divided, first, into those as the representative of the vendor; and, second, into those as the representative of the vendee. Facts to be Learned Before Drawing a Contract of Sale. -Before drawing the contract, which is usually prepared by the attorney for the vendor, he should ascertain the following: The date when the contract is to be signed, and the names and addresses of both parties. He should also inquire whether the vendor and vendee are citizens of the United States, of full age, and legally competent in every respect. If the contract is to be signed by an agent for either party, he should see to it that said agent has been given the proper authority. Where the vendor is married, the attorney should ascertain if his wife is of full age, and if she will join in the execution of the deed. If the vendor has been divorced from his wife, the attorney should examine the proceedings and the judgment, to discover who is the innocent party. This is material, because, if the wife was the innocent party, she would still be entitled to dower, and, therefore, required to join in the execution of the deed. Such items as the purchase price, the amount of cash to be paid down on the signing of the contract, and the mortgages subject to which title is to be taken, should be recited with care, and for that reason an attorney should be employed to draw the contract. The attorney for the vendee should make certain that the contract provides that his client is to get a full covenant and warranty deed. In drawing the description of the property, and inserting restrictive covenants, etc., the attorney usually refers to a previous title company policy, or the deed in the possession of the vendor. If no survey exists, and the vendee would object to taking title, subject to any state of facts which an accurate |