by the defect of the grantor's title, although this may be much more than he paid for it. It is not, however, settled uniformly what the measure of damages is.

In forms of deeds there is usually a blank of a few lines left after the word "incumbrances," and this is intended for the insertion of any mortgage, or other incumbrance, which may exist; thus, "excepting a mortgage to, &c., dated, &c., to secure the sum of," &c. Or, "excepting a right in the owners of the adjoining land to have and maintain a drain running," &c.

Sometimes quitclaim deeds are made with this warranty: "And I will, and my heirs, &c., shall, warrant and defend, &c., to the said C D, &c., against all claims and demands of myself, or of any persons deriving title by or through me." Such a warranty will hold the grantor and his heirs liable for any incumbrance made or suffered by him, but not for any other.

As the usual covenants of a warranty deed are made with the grantee, "his heirs and assigns," if such grantee conveys the land only by grant and quitclaim, without warranty, his grantee takes the benefit of all the previous warranties to which this last grantor was entitled. Thus, A sells with warranty to B; B grants and quitclaims to C; C is ousted by D, who proves that he has a better title than A. C cannot sue B, because he got no warranty from B; but he can sue A on A's warranty to B, which was transferred to C.

Sometimes estates are conveyed on condition; but this is a very catching thing, and nobody should ever take such a deed, if he can help it. It is hardly safe to have the word condition in any deed but a mortgage. The reason is, that if an estate is conveyed on condition, and the condition is broken, the estate is lost. Thus, if land is sold on a certain street with this clause: "And the land aforesaid is sold on condition that neither the grantee, nor any one deriving title from or through him, shall build within ten feet of the street." If any owner build six inches over the line, by mistake, or extend his building by an addition of a foot or so in any part, the whole land, house and all, might be lost and forfeited to the grantor. And the grantor can always secure the proper effect of such a condition by a clause like this: "Provided, however, and it is agreed, that if the said C D, &c., shall build, &c., the said A B, or his heirs or assigns, may enter upon the land hereby conveyed, and abate and remove any and all buildings or parts of buildings which stand nearer said street than the limit of ten feet aforesaid;". or some similar clause, as might be framed to suit the case. This would be just as good for the grantor, and a great deal safer for the grantee.

By a rule of law which originated in this country, and is now universal here, if a married woman holds lands, the husband and the wife, joining in one deed, may convey them. In some of our States such a deed is regulated by statutes, which, of course, are to be followed. And in many of them the wife now has peculiar powers by statute, as stated in the chapter on Married Women. It may be necessary that she should renounce or release certain rights, as of homestead, &c., under these statutes, if it is intended that the grantee should take a clear title; and in such case proper words should be inserted. This is now the custom, for example, in Massachusetts. She should always release her right of dower, unless it is intended that she should preserve it. In some States her signing the deed with her husband does not release any thing, even if it could be proved that such was her intention, unless the deed contain words expressing her intention to release or convey such or such a right or interest. In most printed forms there is a blank left to be filled up for this purpose. As this differs in different States, I shall refer to it again.

It may be well to remark that bargains are often made for the purchase and sale of real property. If the contract be oral only, it has no force in any court. If it be in writing, either party may, in a court of law, recover damages from the other if he refuses to perform his contract. Or, in a court of equity, he may compel the other to execute his contract. Not, however, if there was fraud in the contract, or oppression, or gross misrepresentation, or intentional and important concealment. But a mere inadequacy of price - all things being honest will not prevent a court of equity from enforcing such an agreement.

Deeds conveying land are of vast variety. They not only differ, that they may suit the particular purposes of the parties and the terms of their bargain, but those used in each section of the country differ somewhat in form from those used in another; and different conveyancers in the same State prefer one form to another. But these differences are generally, if not always, differences only of form, and are seldom essential to the meaning and effect of the deeds. I give here forms of all the kinds most in use; and in such variety, and so selected and prepared, that it is believed that any person in any part of this country will be able to find a form which, either as it stands, or with such alterations as can be readily seen to be required by the use he would make of it, will be safe and sufficient for his purpose.

As acknowledgments differ much in form, enough of them are given to show the kinds that are used. The fuller and more par

ticular are the safer, although the shorter and more general might be sufficient.

In New England, a deed of land is usually what is called in law a deed-poll; by which is meant a deed of one party, and from him to another. In the other States generally a deed of lands is more commonly in the form of an indenture, which is an instrument between two or more parties. The difference between them will be seen in the forms given. The first one is a deed-poll. But most of them are indentures, as they are most frequently used; although a deed-poll that was satisfactory in other respects would generally suffice to give good title to land anywhere.

A form of a deed-poll may be converted into an indenture by changing the beginning of it in the manner shown in the forms, and, whenever the word "grantor" comes, changing that into "the party of the first part." And a deed by indenture is made a deedpoll by changes of an opposite kind. How to make these changes will be seen by comparing the deeds of the two kinds as herein given.

Another difference between the deeds-poll in common use in the New England States, and the deeds by indenture in use elsewhere, must be noticed. If the grantor by a deed-poll has a wife, and it is intended that she shall relinquish her dower, she is not mentioned as grantor, but in the in testimonium, so called, which is that part of the deed which begins with "In witness (or in testimony) whereof;" in this her name is mentioned, and it must be distinctly said that she signs the deed in token of her relinquishment or release of dower. This is shown in the first of the forms annexed to this chapter. But where deeds by indenture are used, there she is joined with her husband, and named as grantor, he and she being "parties of the first part." It is, however, not necessary that any thing should be said in the deed about her release of dower or homestead; but she signs and seals the deed, and, in the acknowledgment, express mention is to be made of her release of dower and homestead, and also that she was separately examined. Some of the forms are drawn in this way. Other forms are written as if the grantor was unmarried, or as if his wife, if he had one, did not intend to give up her dower. But all these forms can be readily altered, and made to resemble either of the forms accordingly as there is or is not a wife, or as, if there be a wife, it is intended that she should join in the conveyance and relinquish her dower, or that the husband should convey subject to the wife's dower. If this last be the intention, it is not necessary to say so, as the mere fact that she is not a party to the deed preserves for her her right of dower.

SECTION III.

MORTGAGES OF LAND.

The purpose of a mortgage is to give to a creditor the security of property. It is very similar to a pledge, although not the same thing.

Mortgages are now made of personal property, as well as of real property; but we will consider in this section a mortgage of real property; or, as it is usually called, a mortgage deed.

This is usually a deed conveying the land to the creditor as fully, and in precisely the same way, as if it were sold to him outright; but with an addition. This consists of a clause inserted before the clause of execution, to the effect that if the grantor (the mortgagor) shall pay to the grantee (the mortgagee) a certain amount of money at a certain time, then the deed shall be void. It is usually expressed in words substantially like these:

"Provided, nevertheless, that if the said A B (the grantor), his heirs, executors, or administrators, shall pay to the said CD (the grantee), his executors, administrators, or assigns, the sum of $ with interest (semi-annually, or otherwise as agreed on), on or before the day of then this deed, and also a certain promissory note signed by said A B, whereby said A B promises to pay said C D, or his order, the said sum at the said time, shall both be void; and otherwise shall remain in full force."

In some States it is more frequent to make a bond, instead of a note, to be secured by the mortgage; and the proviso should be altered accordingly; and it should also be made to express any other terms agreed on. Some of these will be spoken of presently.

In law, every thing is a mortgage which consists of a valid conveyance, and a promise, or agreement, providing that the conveyance shall be void when a certain debt is paid, or the act performed for which the mortgage is security.

This promise or agreement, which converts a simple conveyance of land into a mortgage, usually is contained in the deed itself; and should always be so, for the sake of safety and certainty. This is not, however, strictly necessary in point of law. The transaction becomes a mortgage, if the grantee gives back an instrument, in which it is agreed that the conveyance shall be void if a certain sum of money be paid, or a certain thing be done. This is called an instrument of defeasance; because it defeats or annuls, upon certain terms, the deed of conveyance.

While a common mortgage deed, like any of those of which forms are annexed to this chapter, gives rise to no nice questions of law, it is otherwise with a mortgage which consists of an outright deed of conveyance, and a separate instrument of defeasance. Here numerous questions have arisen, and are answered differently in different States. It may be said, however, that the instrument of defeasance, whatever be its form, must constitute a part of the original transaction. It is not essential that the defeasance be reduced to writing or executed, at the same time with the deed of conveyance. If executed afterwards, but in conformity with an original agreement to that effect, the defeasance and the deed of conveyance will be regarded as one transaction. And if they bear different dates, but are delivered together, they will constitute a mortgage.

Whatever be the date of the instrument of defeasance, if the party who made the deed of conveyance can show by sufficient evidence that the original bargain was that the land should only be mortgaged, and that the defeasance was made to carry out this agreement, it will be held to make a mortgage.

There is no especial rule now universally admitted as to the form of a separate defeasance. The earlier and stricter rule was, that the instrument of defeasance must be of as high a nature as the instrument of conveyance; that is, it must be like that, a deed. But in a majority of the States in which the question has come before the courts, it has been held that any written agreement which amounts in substance to a defeasance, although not a deed, suffices to make the conveyance a mortgage. This may now be considered as the general rule. But in some States the condition or defeasance must be inserted in the deed of conveyance.

In many of the States the courts relieve a party who has made an outright deed of conveyance without inserting any condition or receiving from the grantee any instrument of defeasance, provided he can show even by unwritten evidence that all he intended to make was a mortgage. But on this point the diversity of the decisions is very great. It must suffice to give the rule prevailing in the Supreme Court of the United States. This rule is, that wherever a deed of conveyance is absolute in its terms, but it would be a fraudulent act on the part of the grantee to insist upon its operating as an absolute deed, then the grantor may show, by written or unwritten evidence, that the deed was intended to be a mortgage.

If A makes an absolute deed of his land to B, and C buys it honestly of B, then C cannot be disturbed by A's showing that