The heading of the abstract should be varied in point of form, as circumstances may require; thus directing the attention to those points which are most material and prominent.

The abstract is like a brief of facts prepared by counsel for the trial of a cause, the object of which is to establish or defend the title. In the case where lands are situated in an old patent granted more than a hundred years ago, it is unnecessary and perhaps unwise, to begin the abstract with the granting of the patent, by the colonial government, and then to trace the title under examination through the partition of the patent among the original patentees, and the subsequent conveyances by deed or will, or descents, to the party whose title is under examination. If the party from whom he purchased, or those under whom he claimed, had been in the peaceable and quiet possession of the premises, claiming as owner for many years before-twenty, thirty, or forty, as the case may be that fact should be stated.

It may be stated thus: C. D. under whom the said A. B. derives title, went into possession of the premises in question in 1820, under a deed in fee simple from E. F., who claimed to be, and was believed to be, the owner thereof. The deed of E. F., in which his wife joined, to the said C. D., was dated the 1st April, 1820, purports to be for the consideration of 1000 dollars in hand paid, and "grants, bargains, sells," &c., (using the granting words of the deed,) the premises in question to the said C. D., his heirs and assigns forever. It contains the usual covenant of warranty; (state what the covenants were ;) it was duly acknowledged by the grantor, and his wife on a private examination apart from her husband; and was recorded in the clerk's office of Saratoga county on &c. in book of deeds letter &c. page. The said C. D. immediately afterwards entered into the possession of the said premises under the said deed, erected fences and buildings on the premises, and improved the farm, claiming it as owner until the year 1845, when, for the consideration of 4000 dollars, he sold the same to the said A. B. in fee simple, by a deed executed and acknowledged by himself and wife, bearing date 1 March, 1845, by which for the said consideration of 4000 to him in hand paid, they "granted, bargained, sold," (follow the language of the deed,) the said described premises to the said A. B. his heirs and assigns forever. The deed

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contains the following covenants of title, (setting them out,) and is recorded, (state where and when.)

The said A. B., immediately after the delivery of the said deed, entered into the possession of the said premises under said deed, and has continued ever since in the peaceable and quiet possession thereof as owner, cultivating the farm, and otherwise improving the said premises.

The certificate of the county clerk of the county of Saratoga shows that he has searched the docket of judgments in his office for the last ten years, and finds no judgment now in force against the said A. B.; and that he has searched the record of mortgages for the last twenty years, and he finds no mortgage either against the said A. B. or the said C. D.

The foregoing makes as clear a title as is usually conveyed in the country. If the purchaser is dissatisfied with it, he should point out the defects, so as to give the vendor an opportunity to explain or remove them. If, for example, the vendor had been town collector, or a surety for such collector, the purchaser might require a certificate from the clerk that the docket of the collector's bond had been discharged. (Ch. 11, p. 535.) So also with regard to other possible liens, for taxes, or the like, the purchaser might make inquiries and protect himself by proper covenants.

The foregoing abstract will serve only to show, in a general way, how it should be prepared.

But there will often be incumbrances to be removed. There may have been many transfers of the property. To some of the deeds the wife of the grantor may not have been a party, thus leaving the lands liable to a contingent right of dower. Some of the changes may have been occasioned by a devise. It may be important to see whether the will was properly executed to pass real estate; whether it has been proved and recorded in the proper office; whether it charged the payment of debts or legacies on the real estate of the testator, and whether those debts and legacies have been paid; whether there is any contingent right of dower or curtesy in the land or in any part of it.

The title to some of the parties may be derived by descent from a remote ancestor. In this case it may be necessary to accompany the abstract with a pedigree, duly authenticated. In the case of ancient titles this is sometimes attended with difficulty. We have only to look into our reports to see cases where titles have been

traced back for more than a century, to witness the draft upon the ingenuity and skill of the counsel who is employed in the investigation.*

Conveyancing is both a theory and an art. The theory has reference to the knowledge of the doctrine of estates, the quantity and quality of the interest which a vendor may have at a given time, and his right to alien the same. To acquire this theory, the student should make himself familiar with the law of real property as it existed in this state before the revolution, when a large portion of our great estates had their origin, the changes which have been from time to time introduced by the legislature, and the present state of the law, both of descent and purchase.

The first changes which were introduced after the revolution were the converting of estates tail into estates in fee simple, and abolishing the law of primogeniture. These led to subordinate changes, which have been noticed in the foregoing work. But still greater changes in our legal polity were wrought by the revised statutes of 1830; some of which were merely formal, and others radical in their character. Many principles in the law of trusts, for example, which were well settled, have been entirely subverted; and new rules have been adopted, the practical operation of which has not yet been fully settled by the courts. In the preceding chapters we have endeavored to state the existing law of this state, as it was enacted by our legislature and expounded by our judicial decisions. A competent knowledge of the law in these respects is indispensable to the theory of conveyancing.

But conveyancing is not only a theory but an art. The art consists in the proper application of the principles to the actual affairs of life. When a man is about to convey a farm to another, or to mortgage it as security for a loan or a debt, the natural inquiry which will first be made is as to the quantity and quality of interest which he has in the property which he proposes to alien. The first,

* The Livingston and the Van Rensselaer manors, the Hardenbergh and the Kayaderosseras patents, have each, in turn, furnished examples of the various points which may arise in deducing titles from the remote patentees. These patents embraced large tracts of land, and were issued by the colonial government in the early part of the last century. Numerous other of the old colonial patents have not been less prolific in affording subjects of litigation. (The People v. Van Rensselaer, 5 Seld, 291, will show the deduction of title in the defendants as against the state. Papers in relation to the Livingston patent will be found in 3 vol. Doc. His. N. Y., 611 et seq. Jackson v. France, 10 John. 428, as to a title under the Hardenbergh patent.)

that is, the quantity of interest, has reference to the time of its continuance; as whether it is an estate in fee simple, for life or for years; an estate at will, or only at sufferance. The second, that is, the quality of the estate, has reference to the time when the right of enjoyment will commence, or rather whether it is an estate in possession, or in expectancy, as a remainder or reversion; and to the number and connection of the tenants, as whether it is an estate in severalty, joint tenancy or in common. These subjects have been treated in their proper place. It is obvious that these points must be settled before the conveyancer can determine on the appropriate form of conveyance, and the proper covenants to be insisted on by a purchaser, or to be granted by the vendor.

For example, if the grantor has not alone the right of alienation but only in conjunction with others, who are co-tenants with him; if he has only an estate for life or years, and another has the remainder or reversion in fee; if a husband is seised only in right of his wife; in all these cases, it will readily occur to the counsel that the proposed grantor can only transfer to another such estate as he has in himself individually; and that to alien the fee simple, he must procure the concurrence of his co-tenants, the remainderman or reversioner, and in the last case of his wife, to unite with him in the conveyance. Indeed, in all cases where a man parts with an estate of inheritance, intending to give a fee simple absolute, without incumbrances, his wife should be a party with him to the conveyance, and should make the requisite acknowledgment. (Gillet v. Stanley, 1 Hill, 121.)

If the tenant for life sells to a stranger in point of estate, the deed can operate only to pass his own interest, and will make his grantee a tenant pur auter vie. Although the grantor thus transfers to another an estate for the life of the grantor, it becomes, in the hands of the grantee, by operation of law, an estate, not for the life of the grantee, but of the grantor. It is of less value to the grantee, in point of interest, than it was to the grantor. But if the conveyance of tenant for life be to him who has the immediate estate in remainder or reversion, the operation of the deed is a surrender, and thus the whole fee simple is vested in the grantee.

Suppose an estate for years be desired to be created by a party who has only an estate for his own life. A lease for years by the tenant for life does not give a certain continuance of the estate, since it must be determined by the death of the lessor. But if he

who owns the remainder in fee joins in the lease to the tenant for years, this lease becomes during the continuance of the life estate, the lease of the tenant for life and the confirmation of the remainderman. But after the determination of the life estate, the lease becomes, in construction of law, the lease of the remainderman, and the confirmation of the tenant for life.

If the estate is derived by devise or descent, and the will, in the first case, does not charge the estate with the payment of debts or legacies, still in both cases, under the operation of our laws, the real estate of the testator or intestate may be reached through the intervention of the surrogate's court, for the payment of the debts of the testator or intestate, on the insufficiency of the personal assets, if the application be made within three years from the date of the letters testamentary or of administration. (See Will. on Ez'rs, 306 et seq. 2 R. S. 100. 3 id. 186 et seq. 5th ed.) The effect of this statute regulation is to create a quasi lien on the real estate of the deceased, in favor of creditors at large, for a certain defined period. The existence of such power will suggest to the purchaser of estates derived by inheritance or by devise, the necessity of ascertaining from the surrogate's office, or other sources of information, whether the accounts of the administration of the estate have been closed or not; and whether any and what debts exist against the estate. The covenant against incumbrances should, in the case of a title so derived, be drawn in such a manner as to protect the purchaser against the claims of the creditors of the estate, which may be enforced against the real estate of the deceased.

It is the duty of the counsel of the purchaser to examine the abstract, and compare it with the several documents referred to in it. He should see not only that the abstract has been truly made from the deeds or wills, under which the title is derived, but should ascertain by an examination of the whole instrument that there is no proviso, or limitation over, which qualifies or restricts the portion of the instrument abstracted. And the description of the parties, or an exception in the operative part of the deed, or frequently in the covenants for title, sometimes points to incumbrances or settlements which have not been disclosed. In the case of wills, particularly, the counsel is bound to read through the whole will. Upon him devolves the duty of seeing that the evidence is what it purports to be, and that the deeds and wills are duly executed and recorded. (1 Sugd. Ven. 505, 506, Perkins' ed.)