« ForrigeFortsett »
fixed objects are wanting, and the course and distance cannot be reconciled, the one or the other may be preferred, according to circumstances.1
Where land is conveyed by metes and bounds, if the description contains positive language as to quantity, it is to be regarded as descriptive only, and not as a covenant of quantity.'
In drawing deeds for exchange of lands, or amicable partition, the true and actual consideration, or the value thereof, should be expressed, so that ill the event of eviction, or failure of title of either portion, the amount of the recovery by the losing party, if he is entitled to recover for his loss, may be fixed.
A deed will not take effect, so as to vest the estate or interest intended to be conveyed, except from the time of its delivery. Almost any act of the party executing a deed, importing an intention to deliver it, will be sufficient; or it may be delivered as an escrow, on conditions, and will take effect, on the performance of such conditions, from the time of the delivery.'
No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust, or power, over or concerning lands, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed, or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.'
This section cannot be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.'
By the statute of California the term " heirs," or other words of inheritance, are not necessary to create or convey an estate in fee simple; and every conveyance of real estate passes all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms, or be necessarily implied in the terms of the grant.' The words "grant, bargain and sell," unless restrained by express terms, contained in the conveyance, are construed to be the following express covenants and none other, on
1 Stanley v. Green. January Term, 1S59. * 1d. 895.
• Flsko r. his creditors. January Term, 1859. • 1d. 881.
'Wood's Dig art. 894.
the part of the grantor for himself, his heirs and assigns, and may be sued on as such.
1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same real estate, or any right, title or interest therein, to any person other than the grantee. 2. That such real estate is at the time of the execution of such conveyance, free from incumbrances done, made or suffered by the grantor, or any person claiming under him.'
It is not necessary that the grantor should be in possession, but even if the land is held adversely he may sell and convey his interest therein.'
If conveyance be made in fee simple absolute, and the grantor have not the legal estate, but should afterward acquire the same, the legal estate subsequently acquired passes immediately to the grantee, and the deed is as valid as if such legal estate had been in the grantor, at the time of the conveyance.'
Contracts for the sale of lands or any interest therein, or for leasing for over a year, are void unless the contract or some note or memorandum thereof, expressing the consideration be in writing and subscribed by the party making the lease or sale, or by his lawfully authorized agent.'
Under the Mexican law and the customs of California, where land was conveyed by deed, it was requisite that the writing should contain at least the names of the parties, the thing sold, the date of the transfer and the price paid.'
Deeds of gift, where no valuable consideration passes, may be made, and when made understanding^ and without fraud, will be held good. A gift of personal property may be made without deed, but to avoid doubt, a writing is generally passed. To make a. deed of gift complete and valid, the property must be delivered. The gift is then executed, and is binding.
Gifts cawa mortis are gifts made in contemplation of deatli; which take effect if the death occurs, provided the property is not needed for the payment of the debts of the deceased.
All gifts are void, which are made to hinder, delay and defraud
creditors, so far as such creditors are concerned, even where the gift is made as a settlement upon the wife or children of the donor.
In California, a deed of gift may be made by the husband to the wife directly, without the intervention of a third party as trustee or otherwise.1
In this state, every conveyance or other instrument in writing, conveying or affecting real estate, or any instrument in writing by which any real estate or interest in real estate is created, aliened, mortgaged or assigned, except wills, leases for a term not exceeding one year, and executory contract* for the sale or purchase of lands, properly proved or acknowledged and certified, may be recorded in the county where the land affected by the instrument lies, and (with the exception of powers of attorney) may be used in evidence without further proof; or if recorded and lost, the record, or a certified copy of the record may be used in evidence, subject to being rebutted by proof of incompetency of the witness by whom the execution of the instrument purports to have been proved.'
Conveyances or deeds affecting lands are of force between the parties without recording; but in order to give notice to third parties, the deed should be recorded in the office of the recorder of the county in which the land lies; and except where there are special and important reasons for not placing the deed at once upon record, it is recommended that every deed should be recorded as soon as possible after it has been properly acknowledged or proved. For the law and forms on the subject of acknowledgment and proof, see the title Acknowledgment in this book.
Recording a deed is held to be notice to a prior purchaser or incumbrancer only when he has actual notice, so that a prior mortgagor is not chargeable with fraud in releasing portions of his lien, and retaining that portion subsequently sold without actual notice.'
The Supreme Court decided, in January 1859, in the case of Hunter vs. 'Watson, that the open, notorious possession of real estate by one having an unrecorded deed for it, is evidence of notice to a subsequent purchaser of. the first vendee's title.
1 Barker v. Koneman, April Term, 1859. * 6 Cal. 670.
» Wood'6 Dig. p. 100, et seq.
The possession must exist at the time of the acquisition of title or deed of the subsequent vendee from the common vendor.
The forty-first section of the statute of California in reference to recording deeds, requires conveyances made before the passage of the act, that is, prior to April 16, 1850, to be recorded; and the penalty of failing to do so is the same as with conveyances made after the act was passed.'
A deed intended to create an estate of joint-tenancy, must clearly express that intent.
The fact that two persons join in a mortgage of lands does not raise a presumption that the estate conveyed is joint property. Joint-tenancies are not favored by our system, the statute having abrogated the common rule of conveyances in this respect, so that in order to constitute a joint estate in lands in two or more persons, such estate must be expressly declared in the conveyance itself, otherwise the estate conveyed will be held by the grantees as tenants in common.'
In Oreqon, deeds of lands, or any interest in lands, conveyances, mortgages, powers of attorney to convey lands, and executory contracts for the sale and purchase of lands duly executed, acknowledged or proved, and certified, may be recorded in the county where the lands lie, and read in evidence. And the record thereof, or duly-certified transcript of such record, may be read in evidence, subject to rebutting testimony.
Such deed should be witnessed by two witnesses, may be sealed by a scroll or other device, and should be recorded within sixty days to give notice.
In Washington a deed is a writing signed and sealed by the party to be bound thereby, witnessed by two witnesses, and acknowledged by the party making it before a judge of the Supreme Court, or of the Probate Court, a justice of the peace or notary public, and must be recorded within six months, to give notice.
Simple Form of Deed of Bargain and Sale.
I, A. B., in consideration of the sum of live hundred dollars to me paid by C. D., do hereby giant, bargain and sell to the said C. D., that lot of land [here insert location and description], with all and singular the rights and appurtenances thereof.
Witness my hand and seal. May fifth, 1859. A. B. [l. 8.] . Sealed and delivered in presence of
[Acknowledgment before the proper officer.']
Deed of Bargain and Sale—the Form, generally used.
This indenture, made the first day of July, in the year of our Lord one thousand eight hundred and fifty-nine, between A. B., of , and M. B., his wife, parties of the first part, and
C. D., of , party of the second part, witnesseth, that
the said parties of the first part, for and in consideration of the sum of ten thousand dollars, lawful money of the United States of America, to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged; have granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey and confirm unto the said party.of the second part, and to his heirs and assigns forever, all that certain lot, piece or parcel of land, &c. [description], together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profit* thereof; and also all the estate, right, title, interest, claim of homestead, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in or to the above described premises, and every part and parcel thereof, with the appurtenances. To have and to hold, all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs ana assigns forever.
In witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written. A. B. [l. S.]
Signed, sealed and delivered, ) M. B. [l. 8.]
m the preseuce of L. M. j