CHAPTER XI.

OF ABSTRACTS; EXAMINATION THEREOF; SEARCHING FOR INCUMBRANCES, AND PREPARING THE CONVEYANCE; AND BY WHOSE EXPENSE.

SECTION I.

Of the Nature of an Abstract.

When land is to be conveyed by one party to another, it is, according to the English practice, the duty of the solicitor for the vendor to prepare an abstract of the title; and of the solicitor of the purchaser to compare the abstract with the deeds, wills, &c. The general practice is to produce the deeds, &c. to the purchaser's solicitor, at the office of the vendor's solicitor-whenever they are exhibited the purchaser must procure some person on his behalf to compare the abstract with the evidence of title. This assumes that the same person does not act as solicitor, at the same time, both for the vendor and purchaser. It is in general desirable in cases in any respects complicated, that each party should be represented by his own counsel or solicitor.

The object of the abstract is to enable the purchaser or his counsel to judge of the sufficiency of the title, and of the incumbrances by which it may be affected. It should, therefore, describe whatever will tend to enable the purchaser or his counsel to form an opinion of the precise state of the title, at law or in equity, together with all chances of eviction, or even of adverse claims. (Preston on Abstracts, vol. 1, 1-5.)

According to Mr. Preston, the general practice in England is to take the commencement of the title, so as to show the state of the evidence for a period of sixty years at least. And in many cases it is material to carry back the title even to a more remote period. This period of sixty years is derived from the analogy to the statute of limitations against a writ of right, which by 32 Henry 8, ch. 2, was fixed at that period. (3 Black. Com. 196, Sharswood's ed.) The application of that principle to our practice would shorten the period to forty years, the longest limitation in our statute. (Code,

§ 75.

The People v. Arnold, 4 Comst. 508. The People v. Van Rensselaer, 5 Seld. 291.)

The simplicity of our law of real estate, compared with that of England, relieves us from many cases of doubt and uncertainty which often oppress the mind of their conveyancers. When the title to land has been derived directly from the state, and has been held by the vendor, uninterruptedly, till the day when he proposes .to sell, it can only be necessary for the purchaser, after examining the original patent from the land office, to inquire whether the owner has in any way subjected the estate to any incumbrance by mortgage, judgment, or other lien.

Where the estate has passed through various owners, by intermediate conveyances, the case becomes more complex; and the inquiry for incumbrances must be extended so as to embrace the various persons through whom the title has passed.

If the estate has been derived by any of its owners by descent, additional questions, as to pedigree, may arise; and also whether the deceased left a last will and testament or not.

If any of the parties through whom the title has passed, derived his ownership by devise, still another class of questions will arise, either as to the competency of the testator to make a will, the conformity of the will to the statutory requirements as to its execution, the structure of the will itself, so as to pass real estate, and whether the estate devised is charged with the payment of debts or legacies, and if so, whether they have been fully paid; and whether the estate is incumbered with any claim for dower, or any other contingent right.

If the vendor, or any one from whom he derives his title, acquired the property at a judicial sale, or a sale under a judgment and execution, or a sale for taxes, the regularity and validity of those sales may be brought in question.

So also if the sale to any of the parties has been made under a power, the circumstances required to the valid exercise of the power should be stated, as far as they are material to the operation of the deed. If the deed was executed by attorney, the production of the power of attorney should be required, and evidence that the principal was alive when the deed was executed by the attorney. (1 Sugden, 483.)

It is obvious, therefore, that the subjects of inquiry, with respect

to the safety of a purchase, are as numerous as the sources of the original and derivative title to the estate.

We shall proceed to notice some of the necessary points to which the intention of a purchaser, or a party proposing to advance money on the credit of the property, should be directed.

SECTION II.

Of Searching for Incumbrances against the Vendor.

If the title to the estate about to be conveyed has passed through no other hands than those of the vendor after being derived from the state, it is against him only that incumbrances are to be inquired for.

There are various liens which the owner of real estate may create; but which to be available against bona fide purchasers, for value parted with at the time, the law requires an entry of them in some public office so as to be accessible to a reasonable search.

1. Judgments rendered by courts of record, are a charge upon the land, tenements, real estate and chattels real of every person against whom any such judgment shall be rendered, which such person may have at the time of docketing such judgment, or which such person shall acquire at any time thereafter; and such real estate and chattels real are subject to be sold upon execution to be issued on such judgment. This lien continues between the parties until the judgment is satisfied; but from and after ten years from the time of the docketing every such judgment, it ceases to bind or be a charge upon any such property, as against purchasers in good faith, and as against incumbrances subsequent to such judgment, by mortgage, judgment, decree or otherwise. (2 R. S. 359, §§ 3, 4. Code, § 282.) The code of procedure makes it a lien on the real property of the judgment debtor in the county where it was rendered, and in any other county, upon the filing with the clerk thereof a transcript of the original docket.

This statute is held to be a short limitation in favor of all purchasers and incumbrancers whose interests arise after the docket. With respect to them, whether they had notice of the judgment or not, they take the land free and discharged of the lien. (Little v. Harvey, 9 Wend. 157. Graff v. Kipp, 1 Edw. Ch. R. 619. Tufts' Adm. v. Tufts, 18 Wend. 621. Scott v. Howard, 3 Barb. 319. Muir v. Leitch, 7 id. 341.) But the judgment continues a lien on WILL.-34

the real estate as against the defendant in the judgment and his heirs, and as against the grantee of the defendant without valuable consideration. (Scott v. Howard, supra.)

The same principles are extended to the judgments of justices of the peace amounting to twenty-five dollars or upwards. Such judgment, on filing a transcript thereof in the office of the clerk of the county where the judgment was rendered, from the time of such filing, becomes a judgment of the county court. A certified transcript of such judgment may be filed and docketed in the clerk's office of any other county, with the like effect in every respect, as in the county where the judgment was rendered; except that it is a lien only from the time of filing and docketing the transcript. (Code, § 63.)

With regard to judgments rendered by the federal courts, it was said by the chancellor in Manhattan Co. y. Evertson, (6 Paige, 466,) that there is no act of congress making a judgment of those courts a lien upon the lands of the judgment debtor within the general territorial jurisdiction of the court, or elsewhere. The existence of such lien, therefore, depends upon the local law of the state where the land is situated upon which such lien is claimed. This is so settled by the supreme court of the United States. (Taylor v. Thompson's Lessees, 5 Peters, 358.)

The chancellor said in the same case, (6 Paige, 468,) that the lien of a judgment recovered in one of the circuit or district courts of the United States within the limits of this state, is a lien upon the lands of the debtor lying within the territorial jurisdiction of such court, for the term of ten years from the docketing of such judgment, in the same manner as the judgment of a court of record in one of the state courts is a lien. But he thought that though those courts could issue executions to the marshals of other districts than that in which the judgment was obtained, the lien of the judgment upon the lands of the debtor must be confined to the lands of the state in which the court is held, and the judgment obtained.

Previous to the revised statutes of 1830, a judgment in a court of record in this state was a lien upon the lands of the judgment debtor from the time of the entry thereof, whether docketed or not. But if the judgment was not properly docketed, it does not affect the lands of the judgment debtor, as against subsequent purchasers or mortgagees. The effect of the revised statutes was to prevent

the common law lien of the judgment from attaching at all upon the real estate of the judgment debtor until the judgment has been actually docketed. (Buchan v. Sumner, 2 Barb. Ch. 165.)

The general lien of a judgment upon the real estate of the debtor is subject to all equities which existed against such real estate, in favor of third persons, at the time of the recovery of such judgment; and a court of equity will so control its legal lien as to restrict it to the actual interest of the debtor in the property, and to protect prior equitable interests in such property, or the proceeds thereof. (Buchan v. Sumner, supra. Matter of Howe, 1 Paige, 125. White v. Carpenter, 2 id. 217. Kersted v. Avery, 4 id. 9.) If a judgment be duly docketed, it is notice to all the world of its existence, and a party can gain nothing by alleging his ignorance of it. (Pierce v. Alsop, 3 Barb. Ch. 195.) It is his duty to cause the requisite search to be made in the proper office, and to obtain the certificate of the clerk as to the facts disclosed by the docket.

We have discussed, in a previous chapter, (Part 3, ch. 6,) the subject of judgments against various parties, and of title under sales by the sheriff, to which the reader is referred. It will there be seen how far judgments are a lien upon the real estate of parties.

We have seen that the ordinary limitation of the lien of a judgment upon the real estate of the judgment debtor, is ten years from the docketing of the judgment. But in case the judgment creditor shall be restrained from proceeding thereon, by injunction or by the operation of a writ of error, the time during which he is so stayed constitutes no part of the ten years, if the party so delayed proceeds as directed by the act, to entitle him to such deduction. For this purpose he is required to file with the clerk of the court in which the judgment was obtained, a notice specifying the injunction or writ of error by which the judgment shall be restrained, and the time of the service thereof; and if such restraint shall have ceased, such party shall specify the duration thereof. The clerk is required to enter in the margin of the docket of the judgment a minute stating that an injunction or writ of error, as the case may be, has been issued, relating to such judgment. A copy of this notice is required to be transmitted by the clerk with his docket of judgment to the other clerks of the court, at the same time and in the same manner. (2 R. S. 359, §§ 5, 6.)

The foregoing provision was contained in the revised statutes; and the code, (§ 282,) as amended in 1851, contains a correspond