CHAPTER 54 CONVEYANCES OF REAL ESTATE (CHAPTER 27, MANSFIELD'S DIGEST OF 1884, PUT IN FORCE IN INDIAN TERRITORY FEBRUARY 19, 1903, AND SUPERSEDED BY OKLAHOMA STATUTES NOVEMBER 16, 1907) § 762. Lands may be alienated by deed-Words "grant, bargain and sell" equivalent to express warranty, of what. 763. Breaches may be assigned as upon express covenant. 764. Conveyance in fee simple. 765. Subsequently acquired title by grantor inures to benefit of grantee. 767. One may convey notwithstanding adverse possession. 768. Term "real estate" defined. 769. Wills not embraced by this act. 770. Grant of lands to two or more constitutes them tenants in common. 771. Married woman may convey her real estate, how. 772. May relinquish her dower, how. 775. Acknowledgment to be attested, how, where taken within 776. Acknowledgment to be attested, how, where taken without 778. Proof of identity of grantor or witness. 779. Acknowledgment by grantor. 780. Proof of. 781. How proved when witness is dead. 782. Married women, conveyance and relinquishment of dower by. 783. 784. To be proved or acknowledged before recorded. Power of attorney to be recorded. 785. Power of attorney to be acknowledged. 786. Power of attorney-How revoked. 787. Deed recorded and acknowledged admissible as evidence. 788. Lost deed. 789. Acknowledgment and recording not conclusive evidence. 790. Deed by commissioner of state lands. 791. Deeds of administrators, etc.-Acknowledging and recording. 792. Deeds as evidence. 793. Recording constructive notice. 794. Deed not effective as to third person until recorded. § 762. Lands may be alienated by deed-Words "grant, bargain and sell" equivalent to express warranty, of what. -[639]. All lands, tenements and hereditaments may be aliened and possession thereof transferred by deed without livery of seizin, and the words "grant, bargain and sell" shall be an express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, free from incumbrance done or suffered from the grantor, except rents or services that may be expressly reserved by such deed, as also for the quiet enjoyment thereof against the grantor, his heirs and assigns, and from the claim or demand of all other persons whatsoever, unless limited by express words in such deed.1 § 763. Breaches may be assigned as upon express covenant.-[640]. The grantee, his heirs or assigns, may in any action assign breaches as if such covenants were expressly inserted. § 764. Conveyance in fee simple.-[641]. The term or word "heirs," or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; but all deeds shall be construed to convey a complete estate of inheritance in fee simple, unless expressly limited by appropriate words in such deed. § 765. Subsequently acquired title by grantor inures to benefit of grantee.-[642]. If any person shall convey any real estate by deed, purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterward acquire the same, the legal or equitable estate afterward acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance.2 1 Brodie v. Watkins, 31 Ark. 319; Winston v. Vaughan, 22 Ark. 72, 76 Am. Dec. 418; Floyd v. Ricks, 14 Ark, 286, 58 Am. Dec. 374; Cloyes v. Beebe, 14 Ark. 489. 2 Cocke v. Brogan, 5 Ark. 693; Holland v. Rogers, 33 Ark. 251; Watkins v. Wassell, 15 Ark. 73; Jones v. Green, 41 Ark. 363. § 766. A fee tail an estate for life.-[643]. In cases when by common law any person may hereafter become seized in fee tail of any lands or tenements, by virtue of any devise, gift, grant or other conveyance, such person, instead of being or becoming seized thereof in fee tail, shall be adjudged to be and become seized thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law by virtue of such devise, gift, grant or conveyance. 767. One may convey notwithstanding adverse possession.-[644]. Any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest in the same manner and with like effect as if he was in the actual possession thereof. § 768. Term "real estate" defined.-[645]. The term "real estate," as used in this act, shall be construed as coextensive in meaning with "lands, tenements and hereditaments," and as embracing all chattels real. § 769. Wills not embraced by this act.-[646]. This act shall not be construed so as to embrace last wills and testaments. § 770. Grant of lands to two or more constitutes them tenants in common.-[647]. Every interest in real estate, granted or devised to two or more persons, other than executors and trustees as such, shall be in tenancy in common, unless expressly declared in such grant or devise to be a joint tenancy.3 § 771. Married woman may convey her real estate, how. -[648]. A married woman may convey her real estate or any part thereof by deed of conveyance, executed by her 3 Cockrill v. Armstrong, 31 Ark. 580. self and her husband, and acknowledged and certified in the manner hereinafter prescribed.* 772. May relinquish her dower, how.-[649]. A married woman may relinquish her dower in any of the real estate of her husband by joining with him in a deed of conveyance thereof, and acknowledging the same in the manner hereafter prescribed." § 773. Witnesses to conveyance.-[650]. Deeds and instruments of writing for the conveyance of real estate shall be executed in the presence of two disinterested witnesses, or, in default thereof, shall be acknowledged by the grantor in the presence of two such witnesses, who shall then subscribe such deed or instrument in writing for the conveyance of such real estate; and when the witnesses do not subscribe the deed or instrument of writing aforesaid at the time of the execution thereof, the date of their subscribing the same shall be stated with their signatures." § 774. Proof or acknowledgment of deed. [651]. The proof or acknowledgment of every deed or instrument of writing for the conveyance of any real estate, shall be taken by some one of the following courts or officers: First. When acknowledged or proven within this state before the Supreme Court, the circuit court, or either of the judges thereof, or the clerk of any court of record, or before any justice of the peace, or notary public. 4 Roberts v. Wilcoxson, 36 Ark. 355; Ward v. Ward's Estate, 36 Ark. 586; Chrisman v. Partee, 38 Ark. 31; Felkner v. Tighe, 39 Ark. 357; Donahue v. Mills, 41 Ark. 421; Tiller v. McCoy, 38 Ark. 91; Shryock v. Cannon, 39 Ark. 434; Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409; Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1; Rockafellow v. Oliver, 41 Ark. 169; Adkins v. Arnold, 32 Okl. 167, 121 Pac. 186. 5 Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1; Witter v. Biscoe, 13 Ark. 422; McDaniel v. Grace, 15 Ark. 465; Meyer v. Gossett, 38 Ark. 377; Pillow v. Wade, 31 Ark. 678; Countz v. Markling, 30 Ark. 17; Dutton v. Stuart, 41 Ark. 101. 6 Cocke v. Brogan, 5 Ark. 693; McDaniel v. Grace, 15 Ark. 475; Jackson v. Allen, 30 Ark. 110; Rev. St. 1837, c. 31, §§ 1-12. 7 Briscoe v. Byrd, 15 Ark. 655. Second. When acknowledged or proven without this state and within the United States or their territories, before any court of the United States or of any state or territory, having a seal, or the clerk of any such court, or before any notary public, or before the mayor of any city or town, or the chief officer of any city or town having a seal, or before a commissioner appointed by the Governor of this state. Third. When acknowledged or proven without the United States, before any court of any state, kingdom or empire having a seal, or any mayor or chief officer of any city or town having an official seal, or before any officer of any foreign country who, by the laws of such country, is authorized to take probate of the conveyance of real estate of his own country, if such officer has, by law, an official seal.❞ § 775. Acknowledgment to be attested, how, where taken within United States.-[652]. In cases of acknowledgment or proof of deeds or conveyances of real estate, taken within the United States or territories thereof, when taken before any court or officer having a seal of office, such deed or conveyance shall be attested under such seal of office; and if such officer have no seal of office, then under the official signature of such officer.10 § 776. Acknowledgment to be attested, how, where taken without United States.-[653]. In all cases of deeds and conveyances proven or acknowledged without the United States or their territories, such acknowledgment or proof must be attested under the official seal of the court or officer before whom such probate is had. § 777. Certificate of.-[654]. Every court or officer that shall take the proof or acknowledgment of any deed or con 8 Worsham v. Freeman, 34 Ark. 55. 9 Rev. St. 1837, c. 31, § 13; Act April 7, 1873 (Laws 1873, p. 78) § 1: Act Dec. 19, 1846 (Laws 1846, p. 72) § 1, as amended by Act Dec. 14, 1874 (Laws 1874-75, p. 58). 10 Worsham v. Freeman, 34 Ark. 55. |