Grant by married acknowl. 1. A grant. 2. A power of attorney, authorizing the execution of a real instrument. 3. A revocation of power of attorney authorizing the execution of a real instrument. 4. An executory contract, for sale and purchase of real property. 5. An instrument creating or declaring trusts. 6. An instrument granting or reserving a power. [New section.] NOTE.-Subd. 1 is based on "Conveyances," Secs. 1, 24; Subd. 2, on Sec. 27; Subd. 3, on Sec. 28; Subd. 4, on Sec. -; Subd. 7, on N. Y. C. C., Sec. 530; Subd. 8, on "Fraudulent Conveyances," Sec. 6; Subd. 9, on "Husband and Wife," Sec. 16. Mortgages, liens, etc., will be treated under their appropriate Title and declared subject to the recording laws. The standard is fixed by these sections, and other subjects will be referred to it to determine requirements and effects. We have grouped all instruments affecting title, and called them "Real Instruments," as a matter of convenience in referring to all the instruments as a class. To call an assignment of mortgages à lease, and an executory contract conveyances, and their holders purchasers, by legislative definition ("Conveyances," Sec. 36), is simply a barbarous perversion of the words "conveyances" and "purchasers." It will require an amendment of Sec. 36, "Conveyances," to let in executory contracts as " conveyances," as their recording has been authorized since the passage of the Act concerning conveyances. SEC. 1093. No estate in the real property of a married woman, how woman passes or is affected by any grant or instrument purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed by Secs. 1179 and 1180. edged. Power of attorney of married SEC. 1094. A power of attorney of a married woman, woman, how authorizing the execution of an instrument affecting her real property, has no validity for that purpose until ac acknowl edged. knowledged by her in the manner provided in Secs. 1179 and 1180. [New section.] Stats. 1863, 165. General references to the subject: Mott vs. Smith, 16 Cal., 533; Dentzel vs. Waldie, 30 Cal., 138; Dow vs. Gould and Curry S. M. Co., 31 Cal., 629; Raccoullat vs. Sansevain, 32 Cal., 376. SEC. 1095. When an attorney in fact executes an instrument affecting real property, he must subscribe the name of his principal to it, and his own name as attorney in fact. [New section.] Fisher vs. Salmon, 1 Cal., 413; Salmon vs. Hoffman, 2 SEC. 1096. Private seals are not required for any purpose. All distinctions between sealed and unsealed instruments are abolished. A written instrument prima facie imports a consideration. [New section.] NOTE. A serious, but desirable, innovation. The bar fully understand the subject. No time or space will be employed in elaborating the reasons. Attorney in must exeprincipal. fact, how cute for Distinction sealed and between unsealed instruments abolished. Import consideration. SEC. 1097. The burden of showing a want of consider- Want of conation sufficient to support an instrument lies with the party seeking to invalidate or avoid it. [New section.] Such witness SEC. 1098. A witness to any instrument mentioned in Sec. 1092 is not necessary to its validity. is necessary only as a means of proving the instrument for record under Sec. 1187. [New section.] NOTE. It distinctly expresses what may be implied from other sections. Substitute for the following (Sec. 484), from the New York Civil Code (the proof and effect of nonrecording are provided for in other sections): "A grant of an estate in real property, other than an estate for years or at will, must be sealed by the grantor or his agent; and if not duly acknowledged, previous to its delivery, according to the provisions of Chap. IV of this Title, its subscription and seal must be attested by at least one witness; or, if not so attested, it has no effect as against a subsequent purchaser or encumbrancer, or those claiming under him, until so acknowledged." sideration, onus probandi, where lies. Witness to ment not its validity. an instru necessary to Form of simple grant ARTICLE II. FORM AND EFFECT OF TRANSFER-CODE COVENANTS. SECTION 1102. Form of simple grant. 1103. No implied covenants in grants. 1104. Code Covenants, special and general. 1105. Special Code Covenants, what. 1106. General Code Covenants, what. 1107. Form of grant, with Special Code Covenants. 1108. Form of grant, with General Code Covenants. 1109. Construction of Code Covenants. 1110. Covenant "against prior grants made by the grantor," what. 1111. Covenant "against encumbrances imposed or suffered by the grantor," what. 1112. Covenant "of ownership," what. 1113. Covenant "against encumbrances," what. 1114. "Encumbrances" defined. 1115. Grantee not barred from obtaining rescission of grant, or damages for false representations. 1116. Code Covenants personal covenants. 1117. Damages for breach of certain Code Covenants, how deter mined. 1118. Damages for breach of certain other Code Covenants, how determined. 1119. Liabilities on other than Code Covenants depend upon what. 1120. What passes by grant. 1121. A fee simple title presumed, when. 1122. Any title subsequently acquired by grantor passes to grantee, when. 1123. Grant, how far conclusive on purchasers. 1124. Conveyances by owner for life or for years. 1125. Title to highway. 1126. Attornment by tenant, when unnecessary. Liabilities of tenant. 1127. Lineal and collateral warranties. 1128. Attornment to a stranger. 1129. What easements pass with property. SEC. 1102. A grant of real property may be made in grantee, witnesseth: That the grantor grants to the grantee all the real property situated in follows: bounded and described as NOTE. The following is Sec. 485 of the New York Civil Code, containing the form of grant: "A grant of an estate in real property may be made in substance as follows: D., of -- -, of the first part, and C. of the second part, witnesseth : dollars, "That the party of the first part hereby grants to the and "Witness the hand and seal of the party of the first part. In England, the following form is prescribed by 8 and 9 "This indenture, made, etc., in pursuance of an Act to now paid by the said C. D. to the said A. B. (the receipt "In witness whereof, the said parties hereto have here- Chancellor Kent (4 Com., 461) recommends the follow- "I, A. B., in consideration of one dollar to me paid by A form briefer still was held sufficient in Kentucky SEC. 1103. No covenant is implied in any grant of an estate in real property, whether it contains express covenants or not, except as provided by the Title on Hiring. N. Y. C. C., Sec. 489. SEC. 1104. There are four express covenants, known as Code Covenants, pertaining to grants, and distinguished as Special Code Covenants and General Code Covenants. [New section.] SEC. 1105. Special Code Covenants are- 2. Against encumbrances imposed or suffered by the grantor. [New section.] NOTE.-Supplementary to Act concerning conveyances. (Stats. 1855, 171, Sec. 9.) SEC. 1107. A grant of an estate in real property, with the Special Code Covenants, may be made in substance as follows: Form of grant, with That the grantor grants to the grantee all the real property situated lows: bounded and described as fol This grant carries with it the following Special Code Covenants: 1. Against prior grants made by the grantor. 2. Against encumbrances imposed or suffered by the grantor. Witnessed by: Executed by: SEC. 1108. A grant of an estate in real property, with General Code the General Code Covenants, may be made in substance Covenants. Construction of Code Covenants. Covenant made by the as follows: This grant, made the grantee, witnesseth: That the grantor grants to the grantee all the real property situated bounded and described as fol lows: This grant carries with it the following General Code Covenants: SEC. 1109. When any Code Covenant is inserted in a grant, by the name and form provided in the two preceding sections, it shall be construed as a covenant, by and on the part of the grantor and his personal representatives, to and with the grantee and his personal representatives, to the effect as provided respectively in the next four sections. [New section.] SEC. 1110. A covenant "against prior grants made by the grantor" is a covenant that previous to the delivery of the grant the grantor had not granted the same property, or any right, title or interest therein, to any person other than the grantee. [New section.] Based on "Conveyances," Sec. 9-supplementary Act. |