Or Ames may create a TENANCY IN COMMON Bates Call Dale Bates, Call and Dale, will in that event each own an undivided one-third interest in Whiteacre, but, unlike an estate in joint tenancy, upon the death of any one his share will go, not to the survivors, but to his own heirs, for the estate of each is a fee simple in an individed one-third of the land. Or Ames may rent a portion of the land to Tupper for a Lease to Tupper for 5 years TERM OF YEARS Ames This is not an estate of inheritance, but merely a right of use for a term of years, and the title continues vested in Ames, subject to the outstanding right of Tupper to use the land. He may do this by leaving Whiteacre by his will to Small and his heirs, as trustees, to hold the land for the use and benefit of Arthur Ames, and on the death of Arthur Ames, the title to vest forever in his heirs. Small and his heirs hold only a naked legal title. They hold this title only during the life of Arthur Ames. They have no right to the beneficial use or enjoyment of the land. CHAPTER XLVI REAL ESTATE CONVEYANCES 416. How Title is Transferred. With the nature of the various estates in land common in the United States in mind, the different instruments of conveyance, by means of which these estates may be transferred from one owner to another, will be considered. As the estates themselves have their origin in the feudal system, so the instruments of conveyance were also taken from the same military age, and this fact accounts for much of the general form and phraseology of these instruments. Title to land may be transferred from one owner to another by either (1) descent, or (2) purchase. Title by descent is acquired when the owner dies and the estate of which he was the owner passes to his heirs. Title by purchase is acquired by means of one of the several instruments of conveyance in the life-time of the owner. 417. Conveyances of land from one owner to another are made by formal instruments, the forms of which are generally provided by statute. The instrument by which the absolute title of a freehold, or estate of inheritance, is transferred from one owner to another, is called a deed. The conveyance for a term of years is called a lease, the owner being designated as the landlord and the person receiving the leasehold interest the tenant. Conveyances for purposes of securing debts, or conditional conveyances, are called mortgages or trust deeds, depending upon their form, and are more fully discussed in the following chapter. 418. Deeds, as used in commercial transactions, are of two kinds: (1) Quitclaim deeds, and (2) warranty deeds. By means of a quitclaim deed, the owner of land, called the grantor, relinquishes all the estate which he possesses in a particular tract of land, substituting the person receiving the deed, called the grantee, as the owner of whatever rights he may have had. The effect of a quitclaim deed is to transfer the title which the grantor had, throwing upon the grantee all risk as to whether the grantor title was perfect or defective. By the warranty deed, the grantor not only conveys the designated estate to the grantee, but further covenants and warrants that he actually owns all the estate which he purports to convey and will defend it against the claims of other persons. The warranty deed is a much safer deed from the standpoint of the grantee, for by it not only the grantor, but usually his heirs, are bound to protect the ownership of the grantee and his heirs forever. All deeds are writings sealed and delivered between the parties. The material upon which they are written is parchment or paper. They must be made by a party able to contract, and must be founded upon some consideration. Their terms must be set forth legally and in an orderly fashion. They must be free from any erasures and interlineations which are not explained in writing on the face of the deed itself. In some states, signing by the grantor, and the attestation of his signature by one or more witnesses, and his acknowledgment of the instrument as his deed before a notary public or magistrate, are necessary. The public recording of a deed is not essential to its validity, but is designed to protect the grantee against the claims of the grantor's creditors, and of subsequent bone fide purchasers. The grantee of a deed should assure himself: 1. That it be in writing. 2. That the grantor is a competent party. 3. That the estate to be conveyed be definitely described. 4. That a consideration be expressed. 5. That it be duly executed. 6. That it be delivered. 7. That it be registered in a public office to affect the rights or third persons. The sufficiency of the writing, the competency of the parties, and the adequacy of the consideration, are governed by the principles which were fully discussed under the subject of contracts. The property, or estate, to be conveyed must be clearly described in the deed, both as to its nature and extent, as well as its location. The congressional system of survey provides an excellent method for legal descriptions, which may be supplemented by reference to town plats, or sub-divisions, street numbers, water-courses, monuments, or other points definitely fixed by nature or by law, depending upon the location of the land. EXAMPLES The following are typical legal descriptions in deeds: The Southeast quarter (SE) of the Northwest quarter (NW) of Section twenty-nine (29), Township thirty-eight North (38 N) of range fourteen (R14) West of the third principal meridian. Beginning at the Northeast corner of Lot Twenty-two (22) of Fuller's Addition to the city of Lancaster, as more fully appears by the recorded plat thereof, thence west one hundred twenty-two (122) feet, more or less, to a certain stone monument, thence south seventy-one (71) feet, thence east one hundred twentytwo (122) feet, more or less, to the front line of said lot, thence north along the front line of said lot seventy-one (71) feet, to the place of beginning; all said land being in Grant County, Wisconsin, Section Twenty (20), Township Twenty (20) North of Range Five West of the fifth principal meridian. The last description is said to be "by metes and bounds." Execution. The due execution of a deed includes the four essentials of signing, sealing, attestation, and acknowledgment. A deed is required to be signed by the grantor, either in person or by an agent authorized under a sufficient power of attorney. If such an agent sign the deed, it must appear both in the body of the instrument and by the signature that he signed it for, and in behalf of, the grantor, and that he was empowered to do so; thus, James E. Smith, by E. A. Brown, Atty. If the grantor is an illiterate person, incapable of signing his own name, he may execute the deed by making a cross, or other device, called his mark, in the presence of witnesses. Sealing. The formality formerly attendant upon the sealing of an instrument has been made by statute somewhat less burdensome, though the majority of the states still require a seal in some form on instruments of conveyance of land. The seal need not be of any particular form or material, so long as it has been adopted by the grantor as his seal. The deed should contain a recital that the grantor has affixed his seal as a further evidence of his intention to execute a sealed instrument. In Witness Whereof the parties of the first part have hereunto set their hands and seals the day and year first above written. Signed, Sealed, and Delivered in the Presence of J. L. TALBOTT. J. H. SMITH. CHARLES HATHAWAY. [Seal] LAURA HATHAWAY. [Seal] Attestation. Witnesses of the signing, sealing, and delivery are sometimes required to sign a deed in order to give it a full legal effect as an instrument of conveyance. Their function is to prove the signatures of the parties, and no particular formality is attendant upon their signature. It is only necessary that the grantor, for whom they are witnesses, shall have acknowledged in their presence that the signature on the instrument is his. Acknowledgment. Every deed, as a part of its due execution, should be acknowledged. The grantor or grantors should appear before some officer authorized by law to take acknowledgments, and state that they have signed and sealed the instrument with full and complete knowledge and understanding of its contents. If dower or homestead rights are to be released, the officer should inquire particularly if such rights are waived, and some states require that the wife be examined separately and apart from her husband so that no force or coercion may be used in procuring her acknowledgment to the deed. Notaries public, court officials, and justices of the peace, are the officers usually empowered to acknowledge deeds, and such officer should attach his certificate under his official seal to the deed. The objects of acknowledgment are: (1) To admit the deed to record; (2) to provide an additional safeguard against fraudulent conveyances; and (3) to furnish a further means of identification of the grantor and additional proof of the due execution of the instrument by him. State of Wisconsin SS. EXAMPLE Be It Remembered, That on this 22d day of June, A. D. 1916, personally came before me the above named John Harris, and Samantha, his wife, to me known to be the persons who executed the foregoing deed, and acknowledged the same to be their own free act and deed for the use and purposes therein mentioned. WALTER WHEELER, (Official Seal) Notary Public, Calumet County, Wisconsin. |