THE AMERICAN LAW REGISTER. SEPTEMBER 1875. AN ABSTRACT OF TITLE. THE lawyer is not altogether interested in that which is new, but the interests of his client require that he should ever be fresh in that which is old and well established, and it may be well for him that he stop now and then to review well established principles, lest in the multiplicity of his business he may omit some important element in the preparation of his case, or it may be in the ordinary routine of his business. A very eminent jurist once remarked that his practice was for many years to read Starkie on Evidence through at least once a year. The profession are much inclined to hunt for new authorities, when perhaps Coke, Saunders and Holt might help them out. The purpose of the present article is not originality of matter or novelty of views, but it is intended rather as a reminder to the profession of well-known principles, familiar to every good conveyancer. What we call an "abstract of title," or searches as in some states, is a synopsis of the several instruments and proceedings, composing a chain of title. Before the "Recording Act" in England, all deeds passed with the possession, and it was the duty of the conveyancer employed to arrange the business and to examine the conveyances, to make an abstract, showing the title. It was a specialty, and many of the old and well established conveyancers retained the custody of these muniments: so that every time the property changed hands they seemed to have a "corner" on the business. In those days, however, the tendency was to keep estates together. VOL. XXIII.-67 (529) In this country, however, where the statutes of all the states provide for recording conveyances, and the use of certified copies thereof in evidence, people have become exceedingly careless, and original deeds and tax receipts have not with any degree of uniformity been preserved. A great fire which destroyed the entire records of a county with a population of half a million, with a realty value of a thousand millions of dollars, and where for thirty years the handling of real estate has been carried on as a distinct business, and where almost every citizen has made from one to fifty conveyances, has demonstrated that every scrap of paper which relates to a title or throws any light upon it, should be sacredly preserved. Even if the record were not destroyed it. may be incorrect, for recorders and clerks are, like other people, liable to make mistakes. No one thing should be more thoroughly impressed upon the mind of the lawyer, as well as the owner of land, than the importance of preserving the evidence of the title. A good and complete abstract ordinarily will be sufficient to enable the conveyancer to pass upon the title, but as a safeguard in the case of the destruction of the public record or for the purpose of correcting its defects, or for the purpose of detecting forgeries and frauds, the original papers are invaluable, and indeed without them often the title will fail. A thorough abstract embraces everything shown by the public records relating to the particular land embraced therein. These records are: First. The books in the recorder's office of the county wherein the land is situated. Second. The records of the several courts, embracing: 1. The United States courts. 2. The circuit and superior courts of general jurisdiction organized under state constitutions and laws. 3. County courts and courts having probate jurisdiction, and 4. Criminal courts, if any are organized specially as such, in cases of forfeited recognisances, which in some states are made liens. It not unfrequently occurs that reference must be had to records in the departments at Washington, as in cases of Indian title, and to records in the government land offices. Constitutions and statutes, although not set out in abstracts, are often really parts thereof, and must be supplied by the knowledge of the conveyancer, especially when the sources of title are to be considered. Examples of this kind will be found in the legislation of Con gress, granting the sixteenth section for school purposes, for internal improvement, and railway grants, the Reserve in Ohio and. swamp land acts. A complete chain of title, especially in the states of Ohio, Indiana, Michigan, Illinois and Wisconsin, composing the NorthWestern Territory, will show : First. The proclamation of discovery. Second. The grant by the king of Great Britain and his council to the original Virginia patentees. Third. The treaty of peace, whereby the colonies were confirmed in their rights. Fourth. The Act of Virginia of 1783, authorizing the Virginia delegates to cede the North-Western Territory. Fifth. The Ordinance of 1787. Sixth. The treaties of the United States with the Indians whereby they vacated. Seventh. The government survey which defined the boundaries. Of school lands it may be stated as follows: First. The Act of Congress donating the sixteenth section to the state. Second. The Act of the General Assembly of a state providing for its sale. Third. The deed of the proper officer authorized by law to convey the same. Or if it be public improvement lands, as in Illinois :- : Second. The Act of the General Assembly providing for canal trustees. Third. The deed of the canal trustees. Fourth. In case of Illinois Central Railroad lands which are included in the term public improvement, 1. The charter of the company; 2. Deed of the commissioners appointed thereunder. There are in the north-western states, as indeed in many of the older states, Indian reservations-tracts of land set apart for the exclusive occupancy of certain Indian tribes or remnants thereof. These lands cannot be conveyed by the Indians, but, when the Indian title is purchased by the government, the land is put into market and the title proceeds from that source. There is a class of lands in Illinois which deserves especial mention-known as the French claims. The French settled on the Kaskaskia, and established trading posts opposite St. Louis, also at Vincennes on the Ohio. In the Act of Virginia of December 20th 1783, above referred to, which authorized the Virginia delegates to cede the North-Western Territory, the following language occurs: "That the French and Canadian inhabitants and other settlers of the Kaskias, St. Vincennes and the neighboring villages, who have professed themselves citizens of Virginia, shall have their possessions confirmed to them, and be protected in the enjoyment of their rights and liberties." The substance of this is incorporated in the Ordinance of 1787. At Cahokia in Illinois there is a large common, belonging to the inhabitants of the village of Cahokia. These commons and other lands thus acquired and held did not come within the provisions of law concerning government lands. As to the Indian title, it may be said the government has always recognised some claim in the Indian, but it was a visionary claim, founded upon no solid basis. The whites have ever been ready to take the land without compensation, and it was rather fear of the murderous tomahawk than any particular sense of right that made it necessary that the abstract should show that the Indian claim had been acquired. The Louisiana purchase embraced the territory lying west and south of the North West Territory. Its eastern boundary was supposed to be the Mississippi river, and its western boundary was an undefined line extending perhaps to the Pacific Ocean, subject to such rights as were claimed by other nations, and which have been since rather more the subject of speculation than of contest. After the purchase of Lousiana, the rights of actual settlers were confirmed, and all unoccupied territory became the property of the United States, and has been the subject of congressional legislation, Indian occupancy, sale or railroad grant. Just at this time the Black Hills country is attracting the attention of the advenThe Indians claim it by virtue of possession and treaty, which the government by its settled policy is bound to respect. Their claim must be respected until such time as the government shall acquire the right to put the land in the market, which may be done by buying out the Indian title or driving them out, turers. which the government is able to do as soon as the lamb shall roil the waters, and thus be in a position to put the land in market, and thereby acquire a title as good as any title in this country, at least so far as the Indians are concerned, for most Indians have been compelled to vacate pursuant to a treaty, borne upon the point of the bayonet. The practical question to be determined by the conveyancer is the source of title, whether it appear in the abstract or not. In most communities these general sources are understood, and there is generally some conceded starting-point, as the patent of the President, a deed from the canal trustees, &c. Difficulty in ascertaining source of Title.-It must be apparent to every lawyer that the time is coming if it has not already arrived in the older cities, when it will be difficult to ascertain the source of title and to trace it down; the records becoming so voluminous-original deeds destroyed, and the memory of witnesses fading out. Some new starting-point must be established, whereby expenses may be saved and titles made more certain. In this connection I refer to an article from the "Land Owner," and suggest that human ingenuity may be taxed in this country as it has been in England.1 ments. 1 The Landed Estates Court of England.-Registration of title in England is a modern experiment, set on foot after long-continued opposition, and still frowned on by the solicitors, who conceive that its operation will be to reduce their emoluOwing to the total want which had always existed of a register for deeds or writs connected with the transfer of land, except in the counties of Middlesex and York, the complexity and uncertainty attending the operations of conveyancing, had long been the opprobrium of English law, and the mercantile classes at last called for a remedy by which an acre of land might be sold with the same expedition and certainty as bank stock. Under the existing system, so far from expedition being a feature of conveyancing, delay, expense and insecurity were the chief characteristics. It was and is the inveterate practice for a purchaser of land to demand, and for the vendor to give, what is called a sixty years' title-i. e., he must show the successive owners of the land for the sixty years previous to the sale, and all that these owners did in connection with it. This created great expense and delay. But if the property were sold next month, or next day, precisely the same process had to be repeated between the new purchaser and his vendor, for what might have been done between other parties previously was not binding, nor was it safely to be acted on by their successors in the property. These evils called loudly for some remedy, and of late years all the legal reformers have been busy with projects to provide some relief. An important impetus was given to a reform by the passing of the Irish Encumbered Estates Act in 1848, the object of which was to break up and compel a sale of the |