- - ::-;:.-. Bcccr; . UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A AND LAND TITLES A BOOK FOR BOYS AND GIRLS A REFERENCE VOLUME FOR PROPERTY OWNERS A TEXT FOR STUDENTS IN THE LAWS OF REAL-PROPERTY A LIBRARY OF ELEMENTARY PRINCIPLES, RESPECTING THE DIVISION OF OUR LAND AND THE LAWS RELAT- ING TO ITS OWNERSHIP By CHARLES CLAUDIUS KAGEY Secretary, The Douglas County Abstract and Loan Company; Charter Member, Illinois Abstractors' Association; Charter Member and Former Secretary, American Association of Title Men; Honorary Member, Indiana Title Men's Association 1914 T K 11*4 THE TEXT AND ILLUSTRATIONS IN THIS WORK ARE PROTECTED BY COPYRIGHTS AS FOLLOWS : First Edition Copyright of 1908. Second Edition Copyright of 1910. Third Edition Copyright of 1911. Fourth Edition Copyright of 1914. Fourth Edition Published May, 1914. 6 4 $ 7 PBBBS OF E. W. STEPHENS PUBLISH m a Co. COLUMBIA, MISSOURI 1914 Every fanner boy hopes some day to be a School Teacher; Every School Teacher desires to be an Editor ; Every Editor would like to be a Banker; Every Banker is ambitious to be a Trust Magnate ; Every Trust Magnate hopes some day to own a farm and have chickens and cows and horses to look after. We end where we begin, and all goes back to the farm. (5) 1 ' There is a distinct joy in owning a piece of land unlike that which you have in money, in houses, in books, in pictures, or in anything which men have devised. "Personal property brings you into society with men. But land is Grod's estate in the world; and when a parcel of ground is deeded to you, and you walk over it, and call it your own, it seems as if you had come into partner- ship with the original proprietor of the Earth." BEECHEB. (6) PREFACE. In 1850 the Interior Department of our Gov- ernment published a report stating that sixty per cent of all land purchased by Difficulties early settlers prior to that date, survey^ was ^ os ^ * them through defective and records titles. This condition was due to the fact that the buyer was often compelled to travel hundreds of miles to the territorial capital or to his own county seat; and if he, himself went horse back, or if he sent the deed by the stage coach traveler and had it duly recorded, the whole document was often not more than three or four lines of ordinary hand writing, in many instances failing to locate the property conveyed by county or state. The early settlers in Ohio were compelled to have their deeds recorded in Virginia, eight hundred miles distant, with no railroad, mail or ex- press service in operation. In later years farms were surveyed by a trav- eling surveyor who had no definite point from where to begin measuring and no ac- The first curate means of measurement and surveyors. . who usually took his pay in turs or (7) 8 LAND SURVEY AND LAND TITLES. other barter, so that very inaccurate descrip- tions were the result. Many farms in the Central and Middle West were in possession of men whose only claim to possession was " squatter rights" and whose titles were never confirmed. No real The early security in land titles was enjoyed squatters. until the abstract firms took up the work of tracing out titles through the records and assisted in the proper drafting of convey- ances, and this care has saved to the people hundreds of millions of dollars every year es- pecially since about 1860 when their work seems to have begun. There is no other industry, trade, occupa- tion or profession that renders such herculean service and at such moderate rates to the Amer- ican public as the " American Abstracters of Land Titles. ' ' Few people properly abstractor, estimate the large amount of work required of a title company in pre- paring a complete abstract. Only experts in the service are competent workmen, and often the abstract to a village lot will require the services of an expert man for three or four daya in its completion. The fact that so few people understand the rudiments of the American method of land sur- vey or the simple laws governing the transfer PREFACE. 9 of land titles, led the author to prepare the first lessons of this series. These early The first lessons were used as stated in the the subject preface to the former editions. 1 The constant encouragement from those who have examined or used the smaller text, and the hope that a broader field could be developed for the benefit of a large number of people fi- nancially interested in real estate affairs, has prompted the working out of the present vol- ume. It is the hope of the author that not only may the pupils and teachers in our public schools be helped by a study of these lessons but that parents as well may read The use them and thus prepare themselves volume. to conserve their investments; to be guided in their future purchases of lands and to better protect their estates of in- heritance for their children. The subjects herein presented have not here- tofore been arranged within a single volume in a simple treatment, and their method of pre- sentation now is primary and general rather than technical. The author has not presumed to write a text for legal study nor a reference library for attorneys or examiners, but to so present the subjects that any reader may com- 1. See page 11. 10 LAND SURVEY AND LAND TITLES. prehend them. It has been his endeavor to help the property owner know and author** * &ss ^ those who contemplate buy- ing a home to understand the sim- pler rules of procedure for their own protec- tion. The author also hopes that the work may create a better sentiment from the property owner for the abstracter, by acquainting him with the methods of the other, and to intro- duce the land owner to the principles of title insurance and to the work of the examiner. Tuscola, Nov. 1, 1913. C. C. KAGEY. PREFACE TO FORMER EDITIONS. Every citizen should know what constitutes a title to a farm or a town lot, he should under- stand how land is measured, how it should be described and what protects his property rights. That a comparatively small number of peo- ple in every community thoroughly understand the transferring of real estate titles, and that few land owners realize how their information, fortunes may be affected by the claims of others, is the conviction of the author after many years experience as a teacher and later as an active abstractor of ti- tles in the business world. Within recent years the values of real prop- erty have increased to such an extent that ac- quaintance with the simple rules and laws gov- erning the division of land, the methods of its transfer, etc., is not only a desirable item of knowledge to all, but an imperative necessity if any one is to be truly safeguarded. In view of the great importance of the sub- ject of "Land Surveys and Land Ti- ?ubject tbe tles >" to ever y citizen, its study should form a part of every school course. (11) 12 LAND SURVEY AND LAND TITLES. It makes immediate and practical applica- tion of political geography and civics, is inter- esting in itself and it bears directly upon promi- nent relations in business and public affairs. With the lapse of time and the rapid advance of land values, the importance of this subject will grow accordingly. Inquiries from patrons in business and teach- ers in the public schools for information on the subject, coupled with the fact that no text- book on the matter was at hand, led the author to prepare a set of lessons covering the rudi- ments of our land laws and practices. These lessons were printed in two series by a local newspaper and used first in the schools of the author's home county. Their signal suc- cess here led to their publication in several ad- joining counties through local jour- The first nals. The demand for them in more of a thesf S permanent form calls forth the pres- lessons. ent volume, which is arranged in two parts, the first treating of the me- chanical methods of survey and description, and the second dealing more with the legal as- pect of titles. These lessons are intended to be simply intro- ductory and general features only are pre- sented. Local statutes must always be con- sulted for detail. PREFACE TO FORMER EDITION. 13 For a complete treatise on the subjects here- in presented the student is referred to " War- veil on Real Property" and "War- other veil on Abstracts," two most valua- thesubject. ble works by George W. Warvell of Chicago, a veteran laborer in laws of real property and an eminent authority on their applications. The importance of a reliable abstract of title ought to be impressed on the mind of every one who has to do with real estate, and it is hoped this work will assist to arouse a proper inter- est in the subject. THE AUTHOR. Tuscola, Illinois, May, 1910. View Looking West. The above cut illustrates one method of marking a sec- tion corner on the prairie when a survey is made. (See page 64.) OUTLINE OF THE PRESENT VOLUME. PAET ONE. This division consists of ten sim- ple stories relating to facts and conditions as they exist in real estate titles. It is a sort of diagnosis of the case showing the need of the treatment as suggested in the next division. (See page 17.) PAET Two. This is a complete explanation of our system of land survey as used through- out most of the United States. It also treats of how the lands are conveyed, how the records of conveyances are kept and how a title is ex- hibited by the Abstract. (See page 40.) PAKT THREE. This section explains the instru- ments employed in the transfer of ownership in land and deals more with the legal and com- mercial part of land transactions rather than with the mathematical, as did the former di- vision. (See page 159.) PAET FOTJE. Here are included many distinct subjects, related to real property and to each other though not successively connected. Many legal instruments are shown in miniature, inter- est tables and other tables useful to the land owner are given. A complete word index of the entire volume is one very valuable feature of this part; and, it also contains an accurate geographical location of all of the Prime Merid- ians governing the survey of the United States. (See page 279.) (15) ILLUSTRATIONS. PAGE The Line Fence Dispute Frontispiece. First township survey - 48 Meridian and Base Line - 55 Standard parallels - 55 Guide Meridians 55 United States and all Principal Meridians 58 Rectangular survey of a state - - 60 Original marking of a corner - - 64 The United States, illustrating ownership at close of the Revolution and our ter- ritorial growth since that time - 66 Correction line - 69 Fractional townships 71 Section and its parts 73 Government lots in a section - 76 Modern method of dividing fractional sec- tions 77 Section of eleven hundred acres - 78 Section of less than two hundred acres 79 Regular township - 80 Town plat - 89 (16) ABB'S TEACKS.* The morning mist was lifting over the tops of the cornfields that walled in the Interurban rails. Just one solitary passenger sat upon the Mourners ' Bench in Stop 56, and he was nearly asleep. His square shoulders were humped and his derby hat, tilted down over his eyes, left only a gray-black moustache for identification. A sound smote upon his ear and he snatched his suit case and started to his feet. No! It was only the rattle of an empty wagon and, a high old-fashioned voice singing: ''Come ye that bump your Lord and let your bang be known. Jine in a bump with sweet a whoa, Bessie, whoa!" The would-be traveler hurried out. "Good morning, Mr. Davis. Let me help you with that big milk can there." * * Thank ye, Barnes, thank ye. It onwinds me every time I hist that can onto the platform. Say, you're the very person I've been wantin' to see." "Fine opportunity, Uncle Joe. The car's late." * "Knowledge never learned of schools." Whittier. (17) 18 LAND SUKVEY AND LAND TITLES. "Well, sir, I'm puzzled about something." Davis put a stout boot on the wagon hub and pushed back his hat. "Awful puzzled. Ye see last week I 'tended the Farmers' Institoot. Went airly and tuck a front seat, I did. And the first feller to take the boards question W&S & Mg f at woman - Well > she let a11 hands know that she was going to dis- cuss domestic signs, and as I had been obeyin' domestic signs for forty years, I rose up and sought a seat furder back." Barnes laughed good-naturedly and glanced up and down the silent track. "Go on, Uncle, go on." * ' You bet I '11 go on. The woman, she finished her signs and wonders and then a little weaz- ened up man lit into his subjeck, 'What a Far- mer Should Study.' I 'lowed there wasn't much in him either, judgin' from his girth; so I stayed back where I was and I couldn't hear very well and didn't care. But after he'd squeaked round quite a spell, his voice suddenly shot up and he hollers out: "I'll wager that 50 per cent of you farmers wouldn't A new know an Abb's track if you seen kind of , , , -r . , , . .-, animal. o ne ' I picked up my ears at that, but from the little I could hear, I couldn't make out whether an Abb was a fur- bearin' animal or a water varmint, nor what- fer lookin' track he made. (Say, have some lickerish it's fine fer a cough.) TEN TITLE STORIES. 19 "Now, Barnes, when ye git over that barkin' fit I want you to tell me all about them Abb's tracks that feller wants us farmers to study." "An abstract," began Barnes unsteadily, "an abstract is just a piece of paper on which is written " Davis 's foot slipped off the wheel. "Hold on, man! An Abb's track is jest a piece of paper, did ye say? Tell me again." "Yes, Uncle Joe, an abstract is a piece of pa- per on which is written a brief but complete history of the title to your land. ' ' He repeated his definition, and waited. "Humph! Is that all? > T A record. owner ought to be without one. Let me tell you an experience of mine. First let us go in the shack and sit down my corn hurts." "Fifteen years ago," resumed Barnes, "I bought a farm of a man named Wagner, and he furnished me with an abstract made by a cheap attorney. I was like you then, I didn't know 20 LAND SURVEY AND LAND TITLES. there was such a thing as an abstract, but Wagner assured me that the paper was all right. I went ahead. The place was run down and I had to remodel the house, improve and repair all the other buildings, even build up the soil. One morning I said to Harriet, 'It is five years ago today since we bought this farm and it is worth twice as much as it was then. ' "Course it was," assented the old man, "an mebby more!" "Well, that very afternoon, Uncle Joe, a fel- low came to my door and said that he had a first mortgage on my farm and that he was go- ing to foreclose. It was his farm, he said." "I'd a-knocked him down with a clabboard," shouted Davis. "Whoa, thar, Bessie. I'll tie her a leetle f urder away and look f er the car. ' ' "It's not in sight? Thank you. No; I couldn't have knocked the man down with anything, but he could have laid me out with a straw, the first minute. Then I said quietly, 'You're mistaken; I paid cash for this place and I have never given a mortgage or lien on the property. I'm here to stay, stranger.' My temper was com- ing up and I felt stronger. The fellow shot a keen glance at me from under his cap beak and asked if I could show him a good abstract of title. Sure, I can, I told him ; and brought the paper from my desk. He looked it over and said dryly, 'That is a mighty poor abstract, Mr. Barnes. Here in the description it says : TEN TITLE STORIES. 21 The West Half of the Northwest Quarter of Section Number Eighteen (18), Township Num- ber Twenty (20) North, Range Number Nine (9), East of the 2nd P.M. And it should be (here he pulled a paper from his pocket and read) : Government Lot Number Two (2) of the Northwest Quarter of Section 18-20-9 East of 2d P. M. "Then right here," the stranger went on, "here in Number 10 is where I come in. At this time, 1896, Mr. James D. Keg- His flrst ly bought this place and he borrowed great lesson ^ Arv ,-p, , , in finance. $1,000 irom me (Bradshaw is my name), and he gave me a first mort- gage on his farm, now yours; and that mort- gage has never been satisfied." Barnes step- ped out to look up the track. "How'd ye come out how'd ye come out?" Davis called excitedly after him. "Why, I came out in a hole, of course," Barnes answered as he took his seat once more. ' * This man, Bradshaw, was a surveyor and had been up in Canada surveying for a railroad for years. When he returned Kegly was dead, but he had sold the farm to Wagner, and Wagner sold to me. Whether Wagner and his cheap lawyer knew of that mortgage, and some other little things that were left out, I don't know. I do know that I compromised for $1,000 cold cash." 22 LAND SURVEY AND LAND TITLES. "Say, neighbor," the old man spoke slowly, "how much would a an abstrack a-cost you in the first place, an abstrack made by an honest feller edgicated up to his job?" * * Not over $50, Uncle ; and for the lack of it, I lost $1,000." "But ye wouldn't a-knowed whether yer ab- .strack was good or bad, would ye?" persisted Davis. "No, I wouldn't in those days; but it is dif- ferent now. The institute instructor A new way W as right. Every man, yes, every money 8 child, ought to study land titles and land surveys so he would know if his abstract was complete and reliable. Don't you think so, too?" "I I reckon he ort," admitted Uncle Joe solemnly. "And I reckon I'll have to go to studyin'. But I aint got anything to study," he added helplessly. Barnes knit his heavy brows. "I don't know the name of any textbook," he said "but the subject is being taught in the more up-to-date schools. Say, while I am on my trip With a leap he made the side of the track and sig- naled, and then ran after the car as it slowed down to let him on. Joel Davis climbed into his little wagon like a man in a dream and sat there smoothing his paint brush beard, the lines limp in his hands. TEN TITLE STOEIES. 23 "A thousand dollars," he muttered, "a thou- sand dollars * * a thousand hard-earned dollars ! ' ' The horse whinnied to be gone. "Gid ap, old girl, we'll just turn round and go straight back home instid of goin' to Newsoms fer that pig; 'nother day will do fer the pig. A "Go and thousand dollars git a move on ye, likewise." Bessie. Yessir, I'll go home and put on my biled shirt and my Sunday pants. * * * A thousand hard-earned dollars!" Two hours later a lean, but very -clean old farmer tiptoed across the tile floor of a city office. Not until he set his whip carefully in the corner did he lift his head to greet the firm. "You're Jones & Hacker, air ye? Well, I'm one Joel G. Davis from Sandcrick Township. Obligeed to ye! I'm powerful glad myself to meet you, too, fer the bank fellers tells me that you can make an abs track that'll run clean back to the first grant to Adam and Eve, and make it right. I'm ready to pay fer it, too," and he slapped his Sunday pocket reassuringly. "We guarantee our abstracts, Mr. Davis," said Hacker, the junior member of the firm, pro- ducing a map. "First thing is to locate your land." That done, he asked for the client's ad- dress. "No need of that," said Davis, reaching for his whip. " I '11 be in town a half hour, or more, 24 LAND SURVEY AND LAND TITLES. and I'll just drop round and get the abstrack on my way out." It took some time to explain that the length of time required to make a good abstract de- pended on the number of links in the chain and how hard, or easy, these links might be to trace. "Now, yours might take three days or three weeks," Hacker concluded. The farmer heaved a sigh that brought up cracker crumbs. "Sometimes an old dog has to learn new tricks whether he kin er not, ' ' and he gave his address with a meekness that would have done his wife good to see. During the following week the grass had no chance to grow between the Davis home and the rural mail box. There was only one deliv- ery a day, it is true, but every time Uncle Joe thought "abstrack" he took the trail. The sev- enth day he was rewarded with an envelope of formidable proportions and the name of Jones & Hacker well up in the northwest corner. "What did ye git, pa; something important?" asked the old lady as that gentleman snatched his spectacles from the clock shelf. ' ' Never you mine, ' ' he replied testily, making a bee line for the back door and thence to his favorite retreat under the Rambo, where he picked up the old splint-bottom hickory chair and socked it down with its back to the house. TEN TITLE STORIES. 25 After much spelling aloud, syllable at a time, and going back again and again, the old man beat out the following letter: MB. JOEL G. DAVIS, Eural Route 9, Boneset, Indiana. My dear Sir: Enclosed you will find an abstract of title to the Northwest Quarter Section Ten (10), Town- ship Sixteen (16) North, Range Eight (8), East of the Third Prime Meridian, Brown County, Indiana. This abstract is complete from the U. S. grant to your purchase, save in one trans- action. Please notice on page nine, in the transaction immediately preceding your own, that the in- strument is lacking in acknowledgment. We have been unable to trace these omissions, and we advise you to hunt up parties at once to remedy this error. It might cause you serious trouble some time, and the title is faulty until this is complete. If you cannot correct these omissions in the deed before your own, yours could be declared void. As soon as you secure the desired information, we will correct page nine and also the record in the recorder's office. Very truly yours, JONES & HACKER. The next thing was to find page 9. After much fumbling and peering and comparing, the 26 LAND SURVEY AND LAND TITLES. right page was finally selected in spite of the fact that the "figger was turned hind side be- fore." Then the double process went on as be- fore, and Davis read: Thomas Meredith, single, of Bedlands, Cal. to Charles F. Hariley, of Boneset, Indiana. Instrument Warranty Deed. Dated June 30, 1895. Filed July 15, 1895. Consideration, $2,000 cash and note $500 due January 1, 1896. Acknowledged before CONVEYS. Northwest Quarter of Section Ten (10), Town- ship Sixteen (16) North, Range Eight (8), East of the 3d Principal Meridian as shown by the Land Book in the office of Recorder of Brown Co., Indiana. For a full minute, Davis sat like one stunned, then he jumped to his feet, threw the letter at the grind stone and swore rather awkwardly, it must be admitted, but the effort was not lack- ing in spirit. In the weeks that followed, the Sunday clothes were in daily use and the mail box was never TEN TITLE STOBIES. 27 empty. After a long, troublesome cnas e> Charles Hanley, of page 9 was located in Pensacola, Florida. From him the original deed was secured, and rare good fortune it was, and they learned that it was a warranty deed acknowledged before M. T. Shane, notary public of Brown County, Indi- ana. The deed was recorded, corrections all made, everything secure. Davis beamed. "I aint felt so free sense I was mustered out of the War," he declared. And straightway he hooked up, threw a crate in the wagon. and set out for Newsoms. "You orta-brought a bigger crate, Joe," panted Newsom as they pushed the crate fur- ther into the wagon, "a lots bigger crate." "Why, Fatty, yer crazy! The pig can turn clean round in this crate; see!" "Yes, he can today, but if yer as long takin' the pig home as ye was comin' after it " "I have been awful long, and I'll tell you what kep' me. Let's set on the fence here. You see the very day I started up here, I stopped at 56 to leave the milk and there was Steve Barnes waitin' fer a car. The talk we had got me into the all-firedest mess of abstractin ." And he told him the whole story. Newsom picked his teeth with a splinter and occasionally interjected an "umph-huh" or a "tut-tut" into the recital, but he kept his place 28 LAND SURVEY AND LAND TITLES. on the fence in spite of the vigorous gestures that broke out in the tragic portions. When the story ended, he threw away the toothpick and asked: "Can ye stay a bit longer? I'd like to onlimber my mind ! ' ' Uncle Joe settled back on the soft rail and jerked a long thumb in the direction of home: "They are cleanin' house over there; IVe got all the time they is ! " "Good, then here goes. Twenty year ago come next March, I bought this place of old Dan Morris. You remember him? Well, I'd knowed him all my life, so we just swopped the cash fer the land and he gimme his deed signed by him and his woman. They moved to town and" "Pore Dan," sighed Davis, "pore old Dan, he wa'n't raised in captivity and the town soon killed him!" "It did that. He died afore corn shuckin' that fall, and they settled the estate and all lit out fer the west. All happened in less than a year after I bought their farm. Well, we toiled and delved here twen- found in ty long years a-buildin' it up into county. one of the garden spots of the state, when along comes a gander-eyed young feller in high boards and pressed pants and he ann-nounced that this here section be- longed to him and a brother and a sister of his'n, TEN TITLE STORIES. 29 He had an abstractor with him and a raft of pa- pers to prove his claim. Set still, Joe, or ye '11 tear yer garments on the splinters. Well, sir, I never stopped to grease my boots or comb my hair. I jist jumped into their autum-bill and tore back to town with 'em, and took my deed to Lawyer Beck " "Beck's a good lawyer, Beck is," put in Da- vis. "Yes, he is; Beck's a good lawyer. So Beck, he took me into his private-speakin' office and told me that the abstractor they had with 'em, Cooper was his name, was the simon pure arti- cle, and he feared my title was defective after all. Then we jined the others and all trooped over to the courthouse and burrowed through records and deeds and wills fer three days, and by gum, Joe, they had me!" Newsom stopped, his face working strangely. "Have a chaw of lickerish, Fatty; it's mighty good lickerish." "Thank ye. Yes, they had me. The papers showed that way back in the sixties, long be- fore Morris's time, a feller by the name of Ja- cob Hull owned the farm, and when he died, he willed it to his daughter, Mrs. Jane Many Thomas, and heirs of her body. Jane hlve le tities soon * ^ re ^ $ fannin' without a no better, man, so she sold the place to our Dan Morris and give him a deed. Drat 30 LAND SURVEY AND LAND TITLES. her! Why, she had no more right to sell the farm than she had to sell the courthouse." "Aint that like em?" snorted Davis, "and they want to vote ! ' ' "As fur as that is concerned, Joe, ye can match every fool woman with a fool man. But pore ole Dan, he died a-believin' the deal was all right. And I worked twenty years in bliss, until that ganglin' grandson of Jane's bobbed up." Newsom stopped talking and looked the misery he was living over in his mind. The listener squirmed and coughed and final- ly put his question in cold English: "How'd ye settle?" "The only way there was to settle. 01' Mrs. Jane was in her grave, and it was up to me to file suit to quiet title, or compromise. No, I won't tell ye how much it cost me. It was enough, and more than I could afford. Oh, if I had only knowed enough to demand an abstract of Morris. But I didn't." The lickerish passed between the old boys and they chewed in silence for a while. "It seems to me, Newsom, that I'd a-moved onto Dari Morris's heirs afore I'd a turned my pocketbook over to them grandchildren of Jane's." "No; I wasn't goin' to beat up the cactus out west lookin' fer no heirs. Mrs. Morris sent the hull passel through college, and I don't suppose TEN TITLE STORIES. 31 there was a dura copper left. I don't know as I could a-got the law on 'em anyhow. Seems to me I hear wheels." Davis hopped nimbly to the ground and climbed into his wagon. "I must be goin' or that pig will outgrow his crate, sure enough." ' ' Hold on, Mr. Davis. ' ' It was the mail car- rier. "If you will deliver your own mail, it will save me a good two miles. Thank you." " Hooty-tooty, if it aint a pictur postal, and I'm as curuss as a woman to know who sent it Say, Fatty, lend me your specks. Time ye was gettin' off yer roost anyhow. Why, I can see through yore specks better 'n I can my own ! The pictur is of the National Park Sem-i-nary, at Washington, D. C. Well, well ! I wonder who oh, it's from Barnes, the very feller I was tellin' you about. I mind now "Let's have the reading," suggested New- som. Davis pawed his beard thoughtfully. "What I did read to ye was printin' the rest of it is aimed to be writin'. Hum-m-m, Barnes aint much of a scribe if he is sich a scholard." He looked over the tops of the glasses at New- som: "I 'low, Fatty, I'd better kind o' chaw it over to myself first and then read it out to you. ' ' And chaw it over he did, while Newsom beat the dust out of his cap, and smiled. 32 LAND SURVEY AND LAND TITLES. "Now lis&en, Brother. It's worth hearin': 'Dear Sir: In the Business Law classes of the National Park Sem-i-nary, recommendation the 7 use a book called "Land for this work, Survey and Land Titles " by C. C. and founded T ^ T , . r\ T i on fact Kagey. It is fine. Ordered a copy for you. Barnes.' * ' Now, what do you think of that ! ' ' exclaimed Davis, waving the card over his head. "Whoa, Bessie ! ' ' "I think I'll have to loan you my specks to read that book with," and Newsom smiled out loud. "Got it on me this time. Here's yer specks, but just the same, there's two powerful good jokes on me that you don't know and never will." Davis drove off chuckling. Newsom waddled through the gate and ad- justed the pin, looked back at the cloud of dust, rubbed his bald spot meditatively. Then he waddled down to the barn, whistling an air that only the horses knew. It was time to feed. A farmer's life runs pretty much in the same groove. Barnes and Davis met again in the early fall at Stop 56, and again they "histed" the milk can to its platform. 1 ' I seen ye over at the Wildwood Church yis- tiddy," said Davis, "and I wanted to step over and pass the time o' day with ye, but Mother was a-snifflin', so I stayed back with her to kind o' comfort her." TEN TITLE STORIES. 33 Barnes remembered how like a Ponderosa the father's own nose had shone, but he side-step- ped that issue and asked a question that he could have answered himself. "Wasn't the groom your youngest son, Uncle Joe!" "Yes, the youngest; and the last child to leave home. Mother, ahem! she'll miss the boy a powerful sight. I what do ye s'pose I give Bob fer his weddin' present?" "A Bible?" ventured Barnes. "No; his ma give him that. I give him the companion piece, a copy of 'Land Survey and Land Titles.' I want my boy to know an Abb's track when he sees one. I want him to be prepared when he buys a home to know something about a title and not be caught for a thousand dollars or so extra." 1. It cost Barnes ' ' one thousand hard-earned dollars" because he had no reliable abstract. 2. Davis profited by Barnes' experience and saved himself an expensive lawsuit. 3. Newsom had to pay for his farm a sec- ond time because he had not required an ab- stract. NOTE. Some may think the above items se- lected from the story are mere fictions, yet each incident is founded on actual fact, with only the 3 34 LAND SURVEY AND LAND TITLES. names changed. "Barnes" comes from Bour- bon township. "Davis" is in Tuscola and "Newsom" belongs to Murdock. Here are some others not included in the above. 4. Eecently a citizen of Delta County, Mis- sissippi, contracted to sell his plantation of 482 acres, the purchase money to be paid cash as soon as the title could be approved. He at once ordered an abstract which when completed disclosed he had no title to a part of the farm on which valuable buildings were located. As the original owner of this part had died a few months before, it took several weeks to se- cure necessary quit claim deeds from the heirs in order to correct the defect. The loss in time and interest on the payment deferred amounted to much more than the expense of an abstract. An abstract ordered a year ago, would have saved time and loss, the original party then be- ing able to complete the missing record. 5. A man had lived on his farm for nearly thirty years. His title was one day contested by a stranger and the suit disclosed that some seventy years before the real owner had been committed to an asylum, where he lived to the extreme old age of ninety years. Dying, he left one heir, a nephew, then a mere boy. This heir after becoming of age became the successful contestant for the property and the supposed TEN TITLE STOBIES. 35 owner lost his farm. An abstract required at the time of his purchase would have saved him his home. (Illinois.) 6. A property owner bought a farm and erected thereon expensive improvements. Some two years afterward he ordered an abstract and discovered his deed located his land eighty rods too far east; in fact he had no title to his property owing to the misdescription. Fortu- nately his grantor was yet living and a new deed would be secured correcting the error. (Bowdre township.) 7. Mr. H. bought a property without an ab- stract. His grantor related every owner from the Government down, as A. the original owner to his daughter, she to Mr. B., he to Mr. C., the banker, etc. Later Mr. H. ordered an abstract and the record disclosed that Mr. A. had deeded the property to his daughter ''and the heirs of her body." She had no right to sell, except her life estate and Mr. H. was caught like New- som. (It happened in Douglas County.) 8. Some years ago Mr. G. purchased a quar- ter section of land but the squire in drafting the deed made the conveyance read the south- west quarter instead of the southed as was intended. Many years afterward the owner or- dered an abstract and the error was discovered. It cost a two hundred dollar lawsuit to reform the deed, which the abstract ordered when the 36 LAND SURVEY AND LAND TITLES. sale was completed would have saved. The original grantor had died in the meantime. (Tuscola Township.) 9. Mr. W. had purchased a farm worth $30,000. Subsequently he ordered an abstract and it disclosed he had no legal title at all to the property. He secured a quit claim deed from the eight heirs of a former owner and completed the matter. Luckily the heirs were all living but every family is not so long lived as to reach ninety. Had he waited another few weeks, it might have been quite expensive for him. (Sargent Township.) 10. Mr. K. bought a property without de- manding an abstract for examination. His grantor assured him the title was good, so the deal was closed. Subsequently he had to pay nearly thirty dollars extra for back taxes and stand the expense of an abstract himself, as well. (Murdock Township.) The incidents above have come under the ob- servation of the author during his practice and actual labor of compiling abstracts of title. There is no way to determine the true condi- tion of a title except by means of an abstract. The original instrument may have been correct and the error might occur in the recording, or the deed may never have been recorded at all. Less than thirty days ago a deed executed in 1866 was discovered and put of record ; it saved TEN TITLE STOEIES. 37 the expense of a costly suit to quiet title. Have you a reliable up-to-date abstract so that you may rest assured you are not in the same posi- tion with the man described in the poem below. AN ABSTEACTEE'S STOEY. He dropped into the office in a casual kind of way, 'Twas a "sort of social visit," and he'd "nothing much to say." He was "glad to see us busy." With a twinkle in his eye He cajoled about a title "to a mansion in the sky." That turned the conversation to the work we had in hand, And the many ways a fellow could be dispossessed of land. "I shall never have to worry, it's lucky dog I am; I can easily remember when it was that Uncle Sam Gave that tract I own, fee simple, straight to William Wallace Dunn For the wearin' of a uniform and totin' of a gun. Bet you could make an abstract on a solitary sheet, For the land's had but four owners it's a title hard to beat. Just suppose you make me up one, you will see that I am right; It should cost about two dollars; you can get it done by night" Thankfully we booked the order; then our famous search began, And we trailed that forty acres through the history of man. We soon gathered from the record that a sole surviving son Of a former owner sold it, though he wasn't twenty-one. Then the land was sold for taxes, though not advertised it seemed, 38 LAND SUBVEY AND LAND TITLES. And the State assumed the title, as the land was not re- deemed. The State then parted with it to a man by name of Lloyd, Then the court decreed the tax sale was a nullity and void. The claimant to the homestead when the forfeit was de- clared Had gone to glory meantime, but had several children spared. The children sought division, in the courts, of the estate. And the many days of wrangle is a tale I'll not relate. At this juncture, intervention by said "sole surviving son," Changed the aspect of the pleadings and the intervenor won. He compromised through pity, gave the litigants a deed, But his wife was not a party, was not even asked to plead. To abbreviate the story: There were many out's and in's In the title, 'twas an endless string of sins Of omission and commission, and the record was as long As the moral law's reputed in antiquated song. When our customer, days later, in a casual kind of way Dropped in to make inquiry, "just to pass the time away," It was sad to see the tear drops as they gathered in his eyes When we said, "Your only title's to a mansion in the skies." Now dear reader, let us caution, just to stop awhile and ponder On the money, you've invested, either down here or up yonder, Could you answer your abstractor, that your title's clear today, If the sheriff, or St. Peter, called to have you make your say? PAET TWO. This division gives a complete explanation of the method of land survey as nsed throughout most of the United States. It also treats of how lands are conveyed, how the records of con- veyances are preserved and how the title to a property is exhibited by the abstract. ABBAHAM LINCOLN said: "I will study and get ready and some day my chance will come." (39) SUBJECTS OF SECOND DIVISION. PAGE 1. Measurements - 41 2. History of Our Survey System - - 46 3. Meridians and Base Lines - - 51 4. Rectangular Survey System, Illustrated 59 5. The Township and Sections - 67 6. The Section and its Parts - - 73 7. Town Lots and Subdivisions - 82 8. Description of Land - - 90 9. Deficient Descriptions - - 97 10. Origin of Individual Ownership - 103 11. Exchange of Ownership - 110 12. Record of Ownership - - 116 13. The Abstract of Title Defined - 122 14. Need of an Abstract - - 130 15. The Abstract and the Abstracter - 136 16. A Sample Abstract of Title - - - 142 (40) CHAPTER I. MEASUBEMENTS. Long or Lineal Measure. 12 inches make one foot (ft). 3 feet make one yard (yd.) or pace. 6% yards make one rod (rd.) perch or pole. 40 rods make one furlong (fur.). 8 furlongs (320 rods) make one mile (mi.). 3 miles make one league. Also 7.92 inches make one link. 25 links make one rod. 100 links (4 rods) make one chain. 80 chains make one mile. Land or Square Measure. square inches make one square foot (sq. ft.), square feet make one square yard (sq. yd.). 30*4 square yards make one square rod (sq. rd.), perch or pole. 40 square rods make one rood. 4 roods make one acre (A.). 640 acres make one square mile (sq. ml.). 36 square miles make one township (tp.)- Also 625 square links make one pole. 16 poles make one square chain. 10 square chains make one acre. 43560 square feet make one acre. 10 square feet make one square. (41) 42 LAND SURVEY AND LAND TITLES. In beginning the study of land survey it is necessary to know the above tables and terms. These tables and measurements are section universally used throughout the survey is United States except in rare in- used. stances where the metric system is employed (see part IV). Some of the terms however are not mentioned in present day sur- veying but are often found in public records or in instruments of land transfer of former days. A "pace" was the common unit of measure when it was the custom to "step off" a farm or lot in case of a land sale. This The pace. , system has given way to more exact methods, since land values have so increased, that now measurements are often recorded to the fractional part of an inch. "Perch" and "pole" are terms not now in common use though they were employed in giv- ing land measurements some years ago, and are each equal in length to one rod. "Furlongs" are seldom mentioned since the equal fractional parts of a mile are used in- stead, and we say "half a quarter" rather than "a furlong." This term originated among the tenants under the feudal system in England when there was parceled to the peasantry the land in acre tracts of four rods wide, and forty rods long for "convenience in plowing." Forty rods was considered the distance the oxen MEASUREMENTS. 43 could plow a furrow without resting, hence the term a ''furrow long" or furlong. A * * league " is a nautical term and is usually used to measure distance at sea. When applied to land measure it refers to a meas- measure nd ure ^ 1&&& as used by Spanish measure, now applied in Mexico and Texas. It is a square of 5000 varas and equal to 4428.4 acres. (See appendix.) "Boods" are no longer in general use, but they are frequently mentioned in old deeds ; the modern method is rather to say one fourth of an acre. A "square mile" is a unit of land measure and it is commonly called a "section." This is true only when the section is reg- A square ular in size of 640 acres and a sec- a section. tion is not always equal to a square mile, as is fully explained in a later chapter. (See chapter in.) Distance in land measure is usually given in chains and links. A chain is four rods or sixty- six feet in length, divided into 100 links, each link being 7.92 inches long. This chain now used by surveyors is called a "Gunter's" chain, from its inventor, Edmund Gunter, an English mathematician The and astronomer who lived about chain y three hundred years ago. It is very convenient in practice since it is 44 LAND SURVEY AND LAND TITLES. graduated on the decimal scale and gives dis- tances in miles and areas in acres. The old style chain was a chain in fact composed of one hundred loops, or links, but owing to wear at the joints the chain perforce became longer and inaccurate ; the one now used is a steel tape with the measurements in links and feet marked thereon. Being one solid piece of metal it does not lengthen by wear nor kink in use. In early times the measurements were not so exactly taken and often distances were "step- ped off" which gave rise to the term "pace." A wheel of known diameter was sometimes used, frequently one wheel of the vehicle in which the surveyor rode. By attaching some marker to the rim, the revolutions were counted and the distance calculated. But both of these systems were inaccurate owing to "losing count" as well as the irregularities in the sur- face of the ground to be measured and in not following a straight line. The lines run by the early government sur- veyors were "measured with chains containing two perches of sixteen and one half feet each, subdivided into twenty-five equal links." This chain is yet employed in rugged country but the one more commonly used is the Gunter's chain, four rods or sixty-six feet in length, and no longer a chain in fact, but a steel tape as noted above. MEASUREMENTS. 45 Our survey system in America was early developed by Thomas Hutchins, a patriot who served during the Revolutionary War under General Greene, who made Hutchins " Geog- rapher General" of the Continental Army. Eufus Putnam, a cousin of Israel Putnam, was also one of the early American surveyors, and he was "Surveyor General" of Origin of the American colonies from 1789 to in America. 1803. He secured from Virginia a grant of one and a half million acres of land located in southeastern Ohio which he surveyed, and he assisted in making the first settlement in that locality. But it is to Thomas Jefferson, the "Sage of Monticello," that properly belongs the honor of our present system of survey in the United States'. The manner of his connection with this honor will be mentioned in a succeeding chapter. NOTE. Be sure to learn the above tables so that you can say them without hesitation or mistake. Master each chapter as you proceed and the knowledge you acquire will be worth many dollars to you in theory as well as in actual practice, now and in future years. SUGGESTION. Visit the office of your county surveyor and examine the chain he uses in modern surveying. He may have an old chain also about his office to show you. CHAPTER II. HISTORY OP OUR SURVEY SYSTEM. The art of surveying is supposed to have orig- inated with the Egyptians, necessity of circum- stances demanding some method of land meas- urement to re-establish property lines annually obliterated by the inundation of the Origin of Nile. In early Rome, surveying be- longed to the liberal arts and was entrusted to certain public officials who enjoyed special privileges. The public lands of the United States are usually divided into rectan- gular tracts bounded by straight lines. The lines extend north and south and east and west, conforming to the cardinal points and are governed by a true meridian, which system of survey is truly American. Our present system of surveying the public lands was first determined by a committee ap- pointed by the Continental Congress composed of Thomas Jefferson, chairman, of Virginia; Elbridge Gerry, of Massachusetts ; David How- ell, of Pennsylvania; Hugh Williamson, of North Carolina; and Jacob Read, of South Car- olina. (46) HISTORY OF OUR SURVEY SYSTEM. 47 In May, 1784, this committee reported "An Ordinance for Locating and Disposing of Lands in the Western Territory," etc., which ordinance required that the land be first di- Arrangement vided into "hundreds" or squares Of the X 'I J ^ American oi ten miles square, and these again subdivi 2-r 3l 32 33 34 3S- 3b HISTORY OF OUR SURVEY SYSTEM. 49 Various changes were made from time to time until in 1805, when through the further influence of Jefferson the present complete sys- tem was fully adopted by Congress. The present It provides for prime meridians at system adopted. suitable distances apart, for base lines intersecting these at right an- gles, townships six miles square, subdivided into thirty-six sections one mile square, num- bered from the northeast corner, east to west and west to east, as shown above. 1 The first surveys were made under the direc- tion of the "Geographer of the United States," but the last mentioned ordinance of 1796 pro- vided for the appointment of a surveyor gen- eral. By act of Congress in April, 1812, the " General Land Office" was established as a Department of the Treasury and its chief officer was designated "Commissioner of the General Land Office." This office under its commis- sioner has ever since had charge of the survey of the public domain, and in March, 1849, it was transferred to the Department of the In- terior, where it now remains. The metric and Spanish system of land meas- urement is used in the districts where the early 1. In the survey of lands in Western Canada the sec- tions of the township begin with number 1 in the south- east corner as in figure I and number across, west and east with 36 in the northeast corner; a sort of combina- tion of the American system as shown by figures I and II. 4 50 LAND SURVEY AND LAND TITLES. titles originated through Spanish grants, nota- bly in California and Texas. In the latter state the rectangular system of survey The metric based on some prime meridian, has flnd em f never been established, but the state measurement is subdivided by many private sur- veys, mostly divisions of railroad grants. These are divided into squares of from forty to 160 acres and often into sections of 640 acres each and numbered from one to the total number included in any special named survey. Nor do the section lines conform to the cardi- nal points but extend in any direction, though in straight lines, as first surveyed in subdivid- ing the larger tract or original grants, more fre- quently referred to as some special named "Rancho." The complete table of the metric system of land measure is given in a succeeding chapter. (See Index.) NOTE. The township, section, and fractional section, with their survey and subdivisions, will be treated more explicitly in the following pages. SUGGESTION: Visit some real estate office and ask how sections are numbered and how they are arranged in townships and ranges. CHAPTER HI. MERIDIANS AND BASE LINES. As noted in the previous chapter, the survey of the publio domain is under the direction of the United States Government, and in direct charge of the Department of the Interior, the Secretary of which department is commissioner a member of the President's Cab- General inet. Acting under this Depart- Land office. ment is the * ' Commissioner of the General Land Office" who has charge of this division of the Department of the Interior. Whenever a district needs be made ready for settlement or private ownership, the Govern- ment of the United States through proper offi- cers arranges for a survey of the land to be made. 1 Competent surveyors are employed to 1. The regulations of our government land office pro- vide that "In all cases where the establishment of a new principal meridian seems to be necessary Establishment ^ *^ e Surveyor General, he shall sub- ofnew prime mit the matter, together with his rea- meridians. sons therefor, to the Commissioner of the General Land Office, and the survey of such principal meridian shall not be commenced until written authority, together with such special instructions as he may deem necessary shall have been received from the Commissioner." (51) 52 LAND SURVEY AND LAND TITLES. establish the meridians and base lines, and to survey the territory under consideration into the several townships and sections, the squares or divisions suitable for easy description. To begin a survey it is necessary to have some substantial point from where a start may be made, and this point of beginning Location of should be one that may not be read- the prime -i i o -i, meridians, ily moved or easily lost. Such a place is usually selected as can be readily referred to, frequently the mouth of a river is chosen, and from such selected point a line is run due north or south as conditions may require, to the margin of the district to be surveyed, or to the boundary of the state or territory in which the district is located. This first north and south line is called a prime or principal meridian. And the FIRST PRINCIPAL MERIDIAN is the line drawn North from the mouth of the Great Miama River in Ohio, and this line is on the meridian forming the boundary line between the states of Ohio and Indiana. It is the first one of the several prime meridians that have been established in the United States, in the extension of the rec- tangular system of land survey. The first sections surveyed in Eastern Ohio were referred to the Meridian forming the boundary line between Ohio and Pennsylvania, and known as "Ellicott's Line." During the MERIDIANS AND BASE LINES. 53 one hundred twenty-seven years since the or- ganization of this system of rectangular sur- veying some twenty-four (24) different num- bered or named principal meridians, with their base lines, have been established throughout the United States. These are shown with their location on the United States map in the next chapter. The exact location of each prime meridian, together with the more exact terri- tory governed by it is given in the addenda to this volume, to which reference may he had. However, we note in passing that the "sec- ond prime meridian" is drawn north from the mouth of Little Blue Creek in Indiana and ex- tends northward to the southern boundary line of Michigan. The third principal meridian extends northward from the mouth of the Ohio River through Illinois. The fourth prime meridian is that meridian passing through the mouth of the Illinois River, but beginning for reference, where it last touches the west bank of that river. So as we progress westward across the country we find other principal meridians to which the land surveys are refer- red for location. On either side and parallel to each princi- Guide pal meridian, "guide meridians" are SiTS established at regular intervals of lines. twenty-four miles apart. Coincident with the establishing of a prime meridian, and the necessary guide meridians 54 LAND SURVEY AND LAND TITLES. throughout any district to be surveyed, cross lines are run at right angles to the principal meridian. The first of these cross lines, estab- lished from some prominent point, is the "Base line" for that principal meridian, and the other cross lines established at intervals of twenty- four miles north and south of the base line are called "standard parallels" or "correction lines. ' ' These lines cut the district surveyed into tracts as near as may be twenty-four miles square, and these are further divided into parts six miles on each side. These last divisions are called "townships" and are more particularly treated in a succeeding chapter. By the above method the district surveyed is now marked out into squares six miles each way, and they extend east and west from the principal meridian and north and south from the base line. (See diagram below.) The rows of squares, or townships, extend- ing side by side, along with the base line are called "tiers;" and the first one Ranges, above the base line is tier number tiers and . townships, one north, the second one is tier number two, etc., while those south of the base line are numbered the same way south. The diagram herein shown illustrates ranges and tiers, and their location. MERIDIANS AND BASE LINES. 55 Fig. III. A is in tier number three north of base line and range number two east of the principal meridian, and the location of this square or township is given as tier three north, range two east of the principal meridian. Always state the meridian to which you refer. B is tier 2 north, range 4, east of the princi- pal meridian. C is tier 2 south, range 2, west of the princi- pal meridian. D is tier 3 north, range 2, west of the princi- pal meridian. E is tier 3 south, range 8, east of the princi- pal meridian. F is tier 7 north, range 3, west of the princi- pal meridian. 56 LAND SURVEY AND LAND TITLES. G is tier 6 north, range 6, east of the princi- pal meridian. Standard parallels are also used as corre'c- tion lines which is more thoroughly explained in the next chapter on the township. Guide meridians are employed to assist in keeping the survey in conformity to the direction of the true meridian but ranges are never numbered east and west from them, they numbering only from a principal meridian. Thus it will be understood that when a rec- tangular survey is established the location of any township therein is readily given by count- ing the rows north or south from the Base line and east or west from the prime meridian. Tiers * are given first and range numbers last in describing a tract of land. As prime meridians are established in new districts and surveys extended each way from them, it must needs follow that these later sur- veys or ranges will meet surveys or ranges ex- tended westward from a former survey refer- 1. The term "township" is more commonly used in place of "tier" to designate the rows of squares extend- ing east and west parallel with a base line, though "tier" is the word employed in the Manual of Surveying issued by the general land office. If the more common term "township" is used, it must not he confused with the single square or unit of land measure, containing thirty- six sections, which is discussed in a later chapter. MERIDIANS AND BASE LINES. 57 red to some certain prime meridian Conditions where two established at a previous date. Where these surveys meet it does not often different happen that the last strip is exactly prime r r meridians six miles wide and the last range may often be very narrow. This condition is well illustrated by range eleven east of the third principal meridian, ex- tending through the eastern district of Illi- nois. (See the map of Illinois, figure V.) This range is less than one mile wide in many places, and its subdivision will be explained in a later chapter on the township. SUGGESTION. Study some map (figure VII) showing the territorial growth of the United States and how it has increased in area, Pig. IV. Map of the United States Showing the Location of the Several Prime Meridians and their Base Lines. CHAPTER IV. RECTANGULAR SURVEY SYSTEM, ILLUSTRATED. On the opposite page is shown a map of the United States, with the several Our prime . -,. -. -, ,. meridians, prune meridians and base lines, es- tablished in the survey of the public domain of the United States. In chapter three the location of the first four prime meridians to be established was noted; by reference to the map here given it can be seen at a glance how the country is divided and description of lands given in reference to some one prime meridian and its base line. It may also be noticed that all states of the United States lying north of the Ohio River and west of the Mississippi are surveyed by this rectangular system, except Texas alone. This state was orignally divided in- . to immense ranches by the Spanish method and measured by the metric system, into irregular shaped bodies. In re- cent years these ranches are frequently resur- veyed into squares as noted on page 50. No state south of the Ohio River and east of the Mississippi except Mississippi, Alabama, and Florida, is surveyed by this rectangular (59) 60 LAND SURVEY AND LAND TITLES. Fig. V. RECTANGULAR SURVEY SYSTEM ILLUSTRATED. 61 method. In these Atlantic and eastern states, all land descriptions are given by beginning at some point in the margin and bounding the plantation entirely by giving the angles and measurements of the entire boundary lines. This method is known as description by " metes and bounds," examples of which are given later in this volume. By further reference to the United States map it will be noticed that but the sectional 16 ^ rs * s ^ ^ *he prime meridians are survey numbered, while the others are employed! named from some notable point near which they pass. It may also be mentioned that the survey of Minnesota, the Dakotas, Montana and Wyoming refer to the fourth principal meridian and ranges number west from it until the survey east from the He- lena meridian is reached; and the fortieth par- allel is the base line for the survey of the above named states, so that both range and tier (or township) numbers extend into the hundreds. For more complete information as to what districts the various meridians control, the reader is again referred to the addenda in the back pages of this volume. In the map of the state of Illinois herein given is shown the complete government sur- vey dividing the state into the several town- 62 LAND SURVEY AND LAND TITLES. ships. The squares are commonly of a U staTe. known as ' ' congressional town- ships" but for local government purposes are called " towns" or " school town- ships." When full size they measure six miles on each side and contain thirty-six sections of six hundred forty acres each, a total of 23,040 acres, but owing to the curvature of the earth's surface and irregularities in surveying they more generally have more or less than this ex- act theoretical number. The term "town" here mentioned must be distinguished from that settlement known as a village or city. This seeming confusion of terms must be understood, and for clearness it is well to call the settlement a "village," the square of thirty-six sections a "town," the tier of horizontal squares a "township," and the vertical row of towns a "range." It must also be understood that for local government purposes a county division is called a "township" but this portion of Township as a county has no reference to a sur- diBtinguished , , m , . from a town, vey or local measurement. This township may and often does con- form to a congressional township in size but it is named instead of being numbered and ' * Haw- creek Township" or any other so named sec- tion of a county is in no wise a unit of meas- ure, but merely a political division of a county. EECTANGULAE SURVEY SYSTEM ILLUSTRATED. 63 Study well the map of Illinois in this chapter, and practice locating any square or town as so many "townships" north or A township as sou th of the base line and so many distinguished * from a tier. ranges east or west of the third or fourth principal meridian. The location of your own town wherein you live is given the same way as so many " tiers*' or townships north or south, as the case may be, of the base line and so many ranges east or west of the meridian governing the tract sur- veyed, in which you live. Notice also that an irregular tract on the eastern side of Illinois does not conform to the other survey. This line marks the boundary of an early private survey known as Har- surveyL rison Purchase, established before the general survey and whenever such pri- vate or military surveys are encountered they remain and are surveyed if at all by a private resurvey. It happens generally that on these lines there are jog and slip corners because the two surveys on either side of the line are in- dependent of each other. Whenever a district is surveyed it is neces- sary to mark the " corners" and the nature of the surface at a corner determines the method, but in any event the perpetuation of the corner is most to be considered. 64 LAND SURVEY AND LAND TITLES. Memorials buried more than twelve inches beneath the surface at a corner, Markers and -, -, memorials. sucn as glass, stone ware, pots- herds, marked stones, cast iron, charcoal and charred stakes are most recom- mended. But it often happens that this cannot be done. If the corner occurs on a rock ledge, a cross is cut at the exact corner and a witness mound of rocks may be constructed nearby. On a prairie, removed from opportunity of more permanent monuments, surveyors often dig rectangular pits and raise a cone shaped mound as a witness to the wooden stake driven at the exact corner. The illustration shows this method and it also shows a jog corner or where a "correction" survey is made. Pig. VI. BECTAXGULAR SURVEY SYSTEM ILLUSTRATED. 65 This jog corner exists where fractional sec- tions occur, as will be explained in the next chapter. In a timbered district the trees at or near a corner are "blazed" while an iron stake is driven at the exact corner, and a tree should be so marked near to the ground that if any one ignorant or careless of the penalty of the law, should cut it down, that the stump will re- tain the evidence of its importance. An act of Congress approved June 10, 1896, provides that it shall be unlawful for any per- son to destroy, deface, change or Penalty for remove to another place, any sec- deSgo r f tion coraer > etc., on any govern- monuments. ment line of survey, or to cut down any witness tree or any tree blazed to mark a line of survey, or to remove any monument or mark or survey. Any offender under this act, on conviction shall be fined not exceeding two hundred fifty dollars, or be im- prisoned not more than one hundred days. (29 Stat, L. 243.) SUGGESTION. Visit the office of your ab- stracter and ask to see his map of the United States, published by the general land office. This map shows every meridian, base line and township that has been surveyed in the differ- ent states and territories. 66 LAND SURVEY AND LAND TITLES. Fig. VII. Figure VII illustrates the original territory claimed by the several states at the time of adopting our Constitution and the growth of territory by the several accessions. (See page 173. CHAPTEB V. THE TOWNSHIPS AND SECTIONS. The township is a unit of land measure com- posed of thirty-six sections and as noted in the last chapter, when it is regular in size it con- tains 23,040 acres. Each regular township is divided into thirty-six squares or sections and they are numbered from one to thirty-six, as shown in figure II on page 48. But the rectangular system of survey pro- duces square results in theory only, because two north and south meridians get nearer to- gether as they approach the pole. This is caused by the curvature of the earth and it af- fects the measurements of each township to the extent that its north line is about three rods shorter than the south line six miles below. Also owing to inaccuracy in surveying x the east and west lines bounding the irregularity towns and sections on the north and and U how ing sou th, often do not run exactly par- equalized, allel, six miles apart. This conver- gence and irregularity produces a 1. Variation of the Needle. The compass, because of its convenience, has for years been the principal instrument used in land survey, but it has lately been super- seded by other instruments where exactness is required. Compass surveying is based on the tendency of the needle to adjust itself to the magnetic meridian, or to "point to the north." Yet it is constantly changing its direction. That irregular line extending generally north and south, which marks the place of no variation is called the agonic line, and this line seems to have a periodical movement back and forth, east and west. In the United States the movement has been constantly toward the east until about 1900 when it began a westward direction. The needle will also vary daily from five minutes to twenty min- utes. In the northern hemisphere the north end of the needle moves westward until about 1 p. m. when it begins the return motion. The movement is less noticeable on cloudy days and also less in the winter months. The needle is also subject to sudden changes, due perhaps to elec- tric disturbances, some time coincident with a thunder storm, at others without any apparent cause. Ve_ins of ore or metal in the immediate vicinity of the needle will affect it, and the deflection is not the same in different instruments. Where survey lines are run with the compass the date of the sur- vey should be given and the allowance of the variation of the needle should be stated. By taking a back sight the work may be made to test the accuracy but the needle (magnetic meridian) should be tested frequently with the true meridian. (Consult any good work on surveying for an explanation of this method.) (67) 68 LAND SUBVEY AND LAND TITLES. township of more or less than exactly 23,040 acres or thirty-six sections of 640 acres each. To take care of this variable quantity it has been provided that all of the surplus or any deficit shall be referred to the north and west rows of sections in each township and to the outer half of all such sections. Thus in sections one, two, three, four, five, and six, the north half may contain more or less than 320 acres, and so with the west half of sections six, seven, eighteen, nineteen, thirty and thirty-one. (See figure II for location.) All other sections of a township, except the eleven above named are supposed to be exact and contain but 640 acres, 160 in each quarter, though occasionally by some error this is not the case. All such sections as are long or short in measurement of 640 acres each, are called "fractional sections," and they are subdivided into parts, different from a regular section, as explained in the next chapter. This variance in size of the sections also gives use to jog and slip corners. ?dg P corners. Where a narrow section joins one of the regular or large size sections, the corners of both may not coincide but the corner of one may be at some distance from the other, often a rod or more removed. (See figure VI.) Again, to equalize the convergence of the range lines, bounding a township on the east and west, a secondary base line is established THE TOWNSHIP AND SECTIONS. 69 as mentioned in a former chapter under the term " standard parallel" or " correction line." On the south side of this line, the range lines extending northward are terminated and a new set of range lines are initiated from the north side of it, again, equally six miles apart, the same as originally begun from the base line. In figure eight above, this correction of the convergence is illustrated. The range lines be- low the " correction line" have been approach- ing the prime meridian throughout their length 70 LAND SUBVEY AND LAND TITLES. from where they started either at the base line or at the last correction line below. Here at the correction line shown they are terminated on the south side and a new set begun, meas- ured again from the prime meridian, eastward and westward on the north side once more evenly six miles apart. The jog corners will frequently occur at section corners also, not on township lines, but the distance is not usually so extensive as at a township corner. It also happens that where ranges meet, the cross lines do not always coincide and the north- west corner of the section on the east side of the range line may be north or south of the northeast corner of the section adjoining on the west. This jog is usually referred to as a "slip" corner as distinguished from the "jog" corner above described. The term township as above used in this chap- ter refers only to a unit of land The narrow measure, six miles square, as nearly whlf and as ma y ke. Or when a survey west causes it. from one meridian meets the survey east from another it may be much narrower. (Refer again to the map of Illinois, figure V.) When it is thus narrow it does not contain the full number of thirty-six sections but such only as the width of the township will allow, and they are numbered from the side on which the meridian governing the survey is lo- THE TOWNSHIP AND SECTIONS. 71 cated leaving any deficiency or omitted num- bers to fall on the opposite side. Fig. IX /8 30 Fig. X. Figure nine shows a township too narrow for complete size and the sections have the east set of numbers because this is reckoned in some range counted west from a prime meridian, while figure ten is wide enough only for one tier of sections and they are numbered as the west row in a township, because this township is reckoned in a range numbered east from a prime meridian. In the narrow range observed in figure five it is numbered range eleven eastward from the third prime meridian and has the west section numbers as in figure ten above. 72 LAND SURVEY AND LAND TITLES. School townships conform in size to these congressional townships irrespect- The school ive of their completeness, and i^?ow in though a township has but six sec- range, tions it is a complete school town- ship also and receives its distinct apportionment of the public school fund and has its full list of school officers. The political township as heretofore men- tioned is not necessarily confined by any reg- ular land measurements but is some part of a county set apart by the inhabitants thereof for the purpose of local government. In many lo- calities it does but it may or may not conform in size and location to the congressional town- ship and frequently it is composed Political o f parts of several school town- townships u- rm. v j f n- distinguished, snips. The boundary or a politi- cal township of a county never ex- tends beyond a county line, while a school township (otherwise called a congressional township) often lies in two or more counties. The political townships are the ones that are named and correspond in their local democratic government to the New England "town," and are often so called in the states west of the Allegheny Mountains. SUGGESTION. Visit the office of your ab- stracter and ask him about the townships and jog corners in your county. Get him to tell you about any correction line or fractional town- ship in the neighborhood. CHAPTER VI. THE SECTION AND ITS PARTS. -ft I 1 k 6 J L M If Fig. XI. Fig. XII. The above diagram represents a regular sec- tion of the size one mile square, containing sis hundred forty acres, and divided into several of its regular fractional parts. It is easily understood that it contains two halves, four quarters, etc., but the parts will be described according to their loca- The section ,. .-, , , -, i divided. tion within the section and in rela- tion to the lines crossing the section. It will also be understood that the section num- ber is placed in the center of the plat and that (73) 74 LAND SUBVEY AND LAND TITLES. the above diagrams do not represent sections in the north or west rows of the township. To illustrate the method of describing the regular fractional parts of the section study the above diagram and note the following: A is read as the north half of section fifteen (N. 1/2) and contains 320 acres. B is the southwest quarter of section fifteen (S. W. i/4) and contains 160 acres. C is the north half of the southeast quarter (N.i/^-SE^) and contains eighty acres. D is the southwest quarter of the southeast quarter (abbreviated description SW-SE) and contains forty acres. E is the south half of the southeast quarter of the southeast quarter of section fifteen (S 1 /^ SE-SE-15) and contains twenty acres. F is the northwest quarter of the southeast quarter of the southeast quarter (brief descrip- tion is NW-SE-SE-15) and contains ten acres. G is the west half of the northeast quarter of the southeast quarter of the southeast quarter of section fifteen and contains five acres (W. 1 /^ NE-SE-SE). H is the southeast quarter of the northeast quarter of the southeast quarter of the south- east quarter of section fifteen, and contains two and one-half acres. (SE-NE-SE-SE-15). I is the west half of section thirty-six and contains 320 acres. (W.y 2 -36). THE SECTION AND ITS PARTS. 75 J is the east half of the east half of section thirty-six and contains 160 acres. (E^-E^- 36). K is the west half of the northeast quarter of section thirty-six and contains eighty acres (W1/2-NE-36). L is the west half of the west half of the southeast quarter of section thirty-six and contains forty acres. (Wy 2 -Wy 2 -SE-36). M is the east half of the northwest quarter of the southeast quarter of section thirty-six and contains twenty acres. (Ey 2 -NW-SE-36). N. The reader will supply. (Ey 2 -SW-SE- 36). So any fractional part of a regular section may be described by straight lines crossing it parallel to either side. The reader should prac- tice dividing a section into parts and in giving the correct description and acreage of each part, and unless one is familiar with this sub- ject he should at this time become a student until it is mastered. The above illustrations in describing the parts of a section include the regular size sec- tions only and do not always apply to irregular the sections in the north and west tiers anyhow ^ a township. As mentioned in a pre- divided. vious chapter these eleven sections are usually "fractional" and they are di- vided into the equal fractional parts as much 76 LAND SURVEY AND LAND TITLES. as possible and the remaining parts are divided into "lots" and numbered consecutively as shown in the next accompanying cuts. Loi- Z to/- ^ 79.3/ "77 Loi- 1 io-f- / 80 QO '(,0 /60 Lf- 3 *.* Z 7/.S-6 BUS" Le+ / Lai- / QO QO Lo+2 Latl 7I.3L 90 /to is+t Lo+l' 7J.fa 80 /60 Let-2 73.36 96 '<* Fig. XIII. Fig. XIV. Fig. XV. When the corners of a section have been es- tablished its area is determined and the subdi- vision of the fractional sections into the sev- eral "lots" is performed in the drafting office of the surveyor general and not determined and so surveyed by the original surveyor on the ground. By direction of the Act of Con- gress approved February 11, 1805, the division of the fractional sections on the north and west tiers of a township was accomplished by con- structing "lot one of eighty acres" next to the center line of the section and placing the sur- plus or deficiency into "lot two" and consider- ing it as the remaining "half" of the quarter. Thus it will be seen by referring again to figure XIII and figure XIV that if the sections on the north line of the township were * ' short, ' ' THE SECTION AND ITS PABTS. 77 the shortage was placed in the "north half" of each quarter north of the center line. The sec- tions on the west line of the township were di- vided as in the southwest quarter of section six, above, and in the west half of section eighteen (figures XIV and XV). * 3 37* 2. 1 J?t3 3? X go BO /6O /6O *** 3 2 / 40e 40*S s~ 4-0 QO 6 35* < 80 ,~ 7 *.~ 90 i to &S3 3t BO /to 3k.tr Fig. XVI. Fig. XVII. Fig. XVIII. The division of the fractional sections in the north and west tiers of the townships in more recent years is accomplished as illustrated in figures XVI, XVII and XVIII. As many reg- ular divisions are made as can be designated by word descriptions according to their relative position in the section, and the remaining frac- tional "forties" are numbered as "lots" be- ginning at the northeast corner of the section. While "lot one" or the eighty acre tract next to the center line of the section does not contain one half of the acres in the "quarter" it is considered as an half and read the "south half of the northeast quarter" ("A" Fig. XVI.) or the The Government lot. 78 LAND STJBVEY AND LAND TITLES. ''east half of the southwest quarter" ("B" Fig. XVII.) Heretofore it was mentioned that owing to inaccurate surveys, sections were sometimes longer than one mile north and south. Such a tier of sections is found just below township sixteen north of the base line in the state of Illinois, the tier being composed of sections one and one-half miles in length, measured north and south. Figure XIX here shown gives the regular divi- sion of such a sec- tion and illus- trates the plan of its division into "lots." The half section line ex- tends across the section at one half mile from the south line and the acres below this line are reckoned the "south half" Fig. xix. of tlie section though the "north half" is more than twice its size; the figure (VI) indicates the "center" of the section. THE SECTION AND ITS PARTS. 79 A section of over eleven hundred acres. The lot containing "108.12" acres is read as "government lot four of the northeast quarter of section six. ' ' The above section contains 1141.28 acres and is one of the largest sec- tions in the rectangular survey system. The descriptions of its parts, however, are simple, merely giving the lot number and then stat- ing of which quarter of the section it is a part. This will be again referred to in the chapter on "Descriptions." When the reader reaches it he is recommended to again review this chapter in connection therewith. This map is one of the small sections in range 11, east of the third principal meridian, and in fact it is section number 7-15-11 east. It contains but 198.38 acres with 99.28 acres in the south half and 99.10 acres in the north half. To better describe the land contained each half is subdi- vided into quarters, and then we have the S. E. 14 One of the small sections. of the S. y 2 , fft SV/ I Y \ \ f *U I which contains 24.82 acres. So for the other parts and so also for the other sections in range eleven where they are so very small. Fig. xx. In the table of square measure (chapter I) it was given that "640 acres make one square mile" and it is usually understood that this 80 LAND SUBVEY AND LAND TITLES. is also a section. A section does contain 640 acres when it is "regular" but whenever it is "fractional" its area varies from one hun- dred acres to 1200 acres as explained above. Section sixteen of each township is set aside for school purposes and its survey is directed by the school trustees of the township. It is divided into lots of forty or eighty acres each and numbered from one at the northeast cor- ner, but there is no fixed rule for such division, The township and how it is usually divided. Fig. XXI. and before the lots in any section sixteen may be determined a map of the survey must be consulted. The only rule given is that the THE SECTION AND ITS PABTS. 81 school section must be surveyed into lots so that it may be sold to best advantage but no one lot shall contain more than eighty acres. The above map, Figure XXI, represents a plat of a township with the sections numbered as has been explained and it also shows the lines of the government lots as indicated in figures XIII, XIV and XV. It illustrates as well which of the sections in a township are fractional as stated in a previous paragraph. SUGGESTIONS. Call on your county superin- tendent of schools and ask him about fractional sections and lots in a section. Ask to see his record "A." ^glg^^il^ Quarter Section Corner. On latitud.no> line.v.i-w looKirvi north , meridional ., ,. west CHAPTER VH. TOWN LOTS AND SUBDIVISIONS. In the last chapter the several regular divi- sions of a section were explained, as well as the division of the fractional or irregular sections, which last division, is accomplished by means of the "government lots." At the close of the chapter the plat of the township again il- lustrated how the several different sections are situated and numbered according to their lo- cation. In a former chapter the numbering of the townships was explained relative to their situation in a tier north or south of a base line and within some range east or west of a certain numbered or named prime meridian. Therefore any regular tract of land can be described, if it lies within a district that has been surveyed by the " rectangular system" of survey, providing the text thus far nas Deen mastered. The description is accomplished by first giving the part of the section to be described and if it is less than a quarter of the section, the small- est fractional part should be named first. Next, give the number of the section, then the num- ber of the tier (or township) north or south (82) TOWN LOTS AND SUBDIVISIONS. 83 of the base line and tell if it is north or south; lastly give the number of the range and tell if it is east or west of the principal meridian and give the name of the meridian from which you reckon. Eefer to figures XI, XXI and III in the or- der given, and give the complete description of B under figure XI assuming that figure XXT is located in the square of figure III in which is shown the letter D. It would be "the south- west quarter of section fifteen (15) township three (3) north, range two west of the prin- cipal meridian." (Abbreviated it is commonly written S. W. % 15-3-2 W. P. M.). E would be "the south half of the south- east quarter of the southeast quarter of sec- tion fifteen," etc. Finish as above. X in figure XVII would be "the southeast quarter of the northwest quarter of section num- ber six (6) township number three (3) north, range number two, west of the third principal meridian. (S. E. N. W. 6-3-2 W. 3d P. M.). Y in figure XVIII would be ' * government lot number three (3) of the southwest quarter of section number eighteen (18) township (or tier) number six (6) north, range number six (6) east of the principal meridian. (Locate it on figure III.) Heretofore the descriptions have all been in relation to the section, tier, range, base line, 84 LAND SURVEY AND LAND TITLES. and meridian, but when it is necessary to de- scribe very small tracts measured by feet in place of acres it is more convenient to mark off the land into small squares and to number or letter each square on a map. This division or map is called "platting a town" and is accomplished with a certain de- gree of formality, simple in its execution though required to promote the enterprise. Whenever an individual or a company of men desire to establish a city, it is necessary first to acquire the ownership to a tract of forty, eighty, or more acres, or a larger part of some section, as the size of the town to be established will require. Having done this, a surveyor is then employed to divide the tract purchased into squares or "blocks" and these again into smaller subdivi- sions of ' ' lots. ' ' The blocks are separated from each other by roads called "streets" and the lots of each block are divided by a narrow pass- way called an "alley." There is no arbitrary rule to guide the sur- veyor in constructing the block as to size, and they vary to suit the fancy of the owner as he may think will best suit the size of the HOW a town to be built or founded. In the town is platted, part laid off or platted for the busi- ness section of the town, the "blocks" and "lots" are usually somewhat smaller than TOWN LOTS AND SUBDIVISIONS. 85 those arranged for the residence portion. Busi- ness lots are usually twenty-five feet wide by about 120 feet long, while residence lots are more frequently made fifty feet wide and some- what deeper. The roads in towns called streets between the blocks, are arranged from forty feet to sixty feet wide, and since the lots face or front on two streets the alley is run through the center of each block crosswise to the lots, in order to give access to the rear of each of them. Having had the land surveyed, as above, the corners of each block are marked by a stone placed at the exact corner of the block and not in the middle of the street or road as is the case where a farm corner is located. The alley corners and lot corners are then usually marked by wooden stakes. This done, the sur- veyor makes a map of the new town, showing the blocks and lots therein, adds his certificate to the effect that he made the survey at the re- quest of the owner, and that the ' * annexed map represents the survey." The surveyor then adds his signature and the owner joins in a certificate that he has had such survey made, that he has had it called by some name, and that he "sets aside the streets and alleys for the use of the public." This certificate of the owner is acknowledged by some officer authorized to administer oaths, 86 LAND SURVEY AND LAND TITLES. and the same is then filed for record by the owner, in the recorder's office of the county. This map, now called a "plat," is with the certificate copied into a book kept for that pur- pose, and after that time the owner, or any one making a deed to any part of the land, em- braced in the plat, no longer refers to it as some part of a section, but calls it some "lot" in some certain "block" of the town named. If for any reason, or good luck, all of the lots are sold and there is need of more lots, some one owning land adjoining the town so Pitted may lay off land next to plat and it, and by the same process have it named/ surveyed, mapped and arranged to be sold by lots and blocks. Such parts so surveyed to be added are usually named for the owner who has it done, and are known as his addition to the town. If for any reason the same person adds more than one plat to the town, the second one is called his "second addition," the third plat his "third addition," etc. In practice, whenever a deed says "Smith's Addition" to a city and does not state any particular addition, the first addition is always understood to be the one meant. Serious mistakes frequently occur in descriptions by not stating which addition is meant when there is more than one addition named for the same man. TOWN LOTS AND SUBDIVISIONS. 87 When the plats are constructed, the owner having the survey made may set aside any part he desires for use as a park, boulevard or a courthouse square, or for any public purpose whatever. This is done for the reason that such arrangement will add to the attractiveness or completeness of the town, and perhaps in- crease the value of the lots. When anyone buys land for a town site he gets the whole land except the road, if any, adjoining it. After he has had it platted for a town, he has left only what remains after taking out the streets and alleys and public grounds, if any has been re- served or set aside and dedicated for public use. Grave mistakes have been made ofttimes in planning town sites, by making the streets too narrow, so much so in fact that the growth of the city is arrested, on account that there is not room enough for the crowds to pass freely from one block to another. Often the condition of the surface of the tract surveyed will gov- ern the form of the plat but it is usually left to the whim of the surveyor or to the direction of the owner. Modern cities have less objec- tionable features than many of the older towns because experience has taught many lessons in the planning and establishing of a "town site.'* Examples of narrow streets are found in many European cities as well as several of the cit- 88 LAND SURVEY AND LAND TITLES. ies in the United States Boston, New York and Philadelphia being notable examples. In these cities many of the principal business streets are not only very narrow, some not more than 20 or 30 feet wide, but they are crooked as well as narrow. This inconvenience arises from the buildings being erected and piaTstreets. the lot lines established before the proprietors of the town realize what room will be needed to accommodate the traffic of the growing metropolis. Many times where a street is found to be too narrow for later conditions, it is widened, but the moving back or tearing off the front of business buildings is not only expensive but laborious as well. Our modern cities are more generally better arranged for the benefit of rapid transit and easy passage of heavy traffic. Wide, straight streets are laid out and frequently diagonal streets or avenues are located to shorten the distances of travel. Better examples of im- proved plats are illustrated by the plan of Wash- ington, Indianapolis, Chicago, Salt Lake City and the new San Francisco. UU HJ.C UVf* fOaul Ml ACUU2UDUW* SUGGESTION. Visit your abstractor's nd get him to show you a town plat. office and get C NcrtH) The above illustrates one plan of a town, together with two separate additions to the original plat. It may be noted that the diagonal line on the north is controlled by the natural boundary of the river and location of the railroad, but in planning the lots they were arranged due north and south rather than at right angle to the railroad, except in blocks two and four where the hill required the arrange- ment given, as most practical. It is also to be observed that the streets are open to further additions, but space herein did not permit a complete map of the entire city. (89) CHAPTER VIII. DESCRIPTION OP LAND. A. DESCRIPTIONS OF REGULAR TRACTS. In the previous chapters it has been explained how that the land opened for settlement has been surveyed and laid off into squares, first in township size and then these divided into sections. The regular fractional parts of a section were shown as well as the irregular sized parts of the section, measured by the ''government lots." These lot divisions of the section are to be distinguished from the "lot" which is part of a "block" in the town plat. The next subject to be considered is the com- bined use of these terms and parts in order to properly describe any tract of land that has been heretofore surveyed. Every farm location has a reference to five things and they are named in the following regular order: First, the section number; second, the township (or describing tier) number and its location north or south of the base line; third, the range number and its position east or west of some given prime meridian; fourth the naming (90) DESCRIPTION OF LAND. 91 or numbering of the meridian referred to, and fifth, the name of the county and state, in which the farm lies. The reader should now refer to figures XI and XII, next to figure XXI, and then to figure III, in the order named, assuming that figure XXI is located in the position of G in figure III. Now, to give the complete description of B in figure XI it would be read, "the south- west quarter of section number fifteen (15), township number six (6) north, range number six (6) east of the principal meridian in county, Illinois. ' ' This for brevity is often contracted into the following: S. W. x /4 15-6-6 E. P. M. So in describing any tract of land being some regular fractional part of a sec- tion; first give the part, either fractional or government lot number, of the section in which the tract to be described is located; next give the number of the section with reference to its location in the township (figure XXI) ; then locate the township in regard to its row num- ber north or south of the base line and also with reference to its location east or west of the prin- cipal meridian (P. M.), which governs the dis- trict in which the land lies. (See figure IV and addenda showing the location of all prime me- ridians.) When in the above paragraph is mentioned the description of some regular fractional part 92 LAND SURVEY AND LAND TITLES. of a section, the same directions apply if the part to be described is of one of the regular government lots as numbered in the fractional sections, of which there are eleven in each town- ship. (See figure XXI.) First give the gov- ernment lot number, and tell in which quarter of the section it is located. Next give the sec- tion number, the township, the range and the meridian, in their order and with each, state the direction to accompany it. So is land de- scribed wherever in the United States the rect- angular method of survey is employed. B. DESCRIPTION OF IRREGULAR TRACTS. Where the rectangular system of survey has not been adopted or where a regular section has been cut into irregular sizes, or even in a dis- trict that has been regularly surveyed, but where a river, lake or mountain has prevented, the survey of land is accomplished under great- er difficulties. By referring to figure IV it will be seen that most of the United States has been surveyed by the rectangular system. Yet that part east of the Allegheny Mountains and also Texas do not employ it. Where no meridians describe an( * ^ &Se ^ n6S are USe< * * mar ^ ^ land by the land into squares, the survey is bounds?" accomplished by marking off large areas or plantations into irregular size whose angles or boundary lines are usually DESCRIPTION OF LAND. 93 referred to some natural monument for iden- tification, such as a marked tree, a hill, a stream or some confluence of rivers. However, a nat- ural monument is not always at hand and fre- quent some very unstable marker is used such as an old tree stump or the corner of some building. Starting at some point, either a natural mon- ument or at some former surveyed line, the sev- eral boundary lines of the irregular tract are run in succession until the whole part of land has been bounded. The bounding of the tract in giving the description is called description by "metes and bounds." Some times a regular tract is so described. B of figure XI would be by this method de- scribed as "beginning at the southwest corner of section fifteen; thence east 160 rods; thence north 160 rods; thence west 160 rods; thence south 160 rods to the place of beginning. ' ' The usual "metes and bounds" description is not so simple or exact as the above and we here give one as found in a deed recorded in an eastern state. "All of two certain tracts or par- cels of land lying in Middle River District, in the County of Augusta and State of Virginia, containing, the one ten acres and three rods, it being part of the land conveyed to the said A. by B. and wife by deed bearing date of the first day of March, 1877, and recorded in the Clerk's 94 LAND SURVEY AND LAND TITLES. office of Augusta County Court, deed book No. 92, page 332; the other containing four acres and two rods adjoining the first lot, is the land conveyed to the said A. by C. and wife by deed bearing date of the 22d day of April, 1881, and recorded in the clerk's office of Augusta County Court deed book, No. 97, page 391." Frequently irregular tracts are surveyed by beginning at some known point and then measuring the lines and angles as they are run. The angle is given from a north and Angle of south line only and never from an usecMiT 6 eas * an( ^ wes t line. In the reading description, of angles the degrees of the circle are considered up to ninety degrees either east or west, from the vertical or north and south line. Thus north forty-five degrees east is the "northeast" and south forty-five de- grees west is exactly ' ' southwest. ' ' Such an ir- regular tract may be illustrated by the follow- ing description: "Beginning north twenty-five degrees east twenty chains from the mouth of Blue Creek, whence a burr oak eight inches in diameter south three degrees east distant twelve links; thence north eighty-four degrees, twelve minutes east 124 chains thirty-one links; thence north sixty degrees east seventy-six chains; thence north forty-one degrees west ten chains to the center of the 'Springfield Koad,' thence southwesterly DESCRIPTION OF LAND. 95 along the center of said road 200 chains, thence south seventy-three degrees twenty-one minutes east fifty chains, thence to the place of begin- ning. ' ' Often the bank or the thread of a stream is made part of a boundary and not infrequently "the brow of the hill" is used for some of the boundary line. Another method Poor lines use( j i s to begin at the "northeast and points of descriptions, corner of Sam Smith's lower tarm where it corners with the land of James Hamilton. ' ' Then by following the own- ership lines around the place the boundaries are indicated; and as a last index the community name of the farm, ranch or plantation is given. From the above it will be seen that the rec- tangular method of description is not only the shortest and simplest, but it is an absolute fact that by this system, no two tracts anywhere in the United States can have the same descrip- tion, and a correct description will infallibly lo- cate any piece of land described by it in any state whatever. The above are sample descriptions of farm land only while town lots are sim- StaSftoS. Ply described as "lot five of block ten in the original town, now city of Tuscola, Illinois," etc. But it frequently occurs that not a whole lot is conveyed and if the part to be described is 96 LAND SURVEY AND LAND TITLES. not an equal fractional part, it must be bounded by measurements, angles, etc. Again refer to figure XII and notice that J. is the east half of the east half of section six- teen (16). If it is a regular section, it is also described as the "east 160 acres of section six- teen," but not "160 acres on the east side of section sixteen." Be careful to note the differ- ence. The first description is definite evenly off the east side of the section, while Aroid the last description may be irregu- confusion J by care. lar, triangular or evenly, and is not exact. To avoid confusion it is a bet- ter plan to say so many feet, rods or acres evenly off the east, or west side, etc. The utmost care should be exercised in giv- ing the description of property because even with the greatest diligence errors often slip into the records, and in after years they are the source of much annoyance and cause material loss to the succeeding owners of the property. SUGGESTION. Visit your abstract office and ask to see the government survey of the town- ships in your county. These maps will show all of the government lots and the abstracter will be glad to explain any points in this chap- ter not already understood. CHAPTER IX. DEFICIENT DESCRIPTIONS. In the preceding chapters of this section, it has been shown how to locate real estate by proper description, and in fact the whole mat- ter of identifying a farm or lot is in giving its exact location. * ' Describing land" as it is called, is giving the location of the tract in such clear and exact language that the part in question may be distinguished apart from any and all surrounding territory. Laterally Locating "describing" land is telling of its describing Physical properties, character of land. surface, drainage, soil, etc., but by common custom and usage "locat- ing" land is termed "giving the description," and herein describing land will be used to con- form to the custom, and it will be understood that ' * legal descriptions ' ' are intended. Many times through ignorance or careless- ness the legal description of a property trans- ferred is imperfectly given and this causes much confusion and trouble in after years. If a property is once improperly described in a transfer, the title is not complete or perfect, (97) 98 LAND SURVEY AND LAND TITLES. that one transfer or "link" in the the title. chain of title is defective. Each re- corded transfer of a title is called a . t link" and the whole title, like a chain is no stronger than the weakest link. Descriptions by the rectangular survey are comparatively simple and easy to give but it is often quite dif- ficult and complicated where the whole descrip- tion rests on a "metes and bounds method." No one except some person competent and ac- customed to the methods of transfer should be permitted to draft instruments of conveyance and a reasonable fee paid for a correct drawing of a deed will ofttimes save an expensive in- vestment to correct an error by a suit. For example A. refused to pay B., an ab- stracter, a fee of one dollar to draw a deed be- cause C., "the squire," would do it for a quar- ter. C. did the work for A. when he bought his farm of D. and some four or five years after- wards when A. sold the property it was discov- ered he had no title whatever to the "Pennywise property. "The squire" had utter- but pound {L f ., J; . . ,. foolish." ly failed in the description and A. had not received a conveyance of the farm from D. This might have been cured by the execution of a new deed, but D. had died in the meantime leaving minor heirs, and only by a suit in court could the defect be cured. The saving (?) of the seventy-five cents cost a law- DEFICIENT DESCRIPTIONS. 99 suit of some couple hundred dollars. (It hap- pened in Illinois.) Following are given a few examples or er- roneous or ambiguous descriptions, which are selected from the public records. Examine them carefully and observe what ludicrous attempts at descriptions they are; yet one or many just such may be connected with the title to the land in which you are vitally interested, and only an abstract will ever disclose it. "What does it matter," some one inquires, "if there is a defect?" At some time it will be disclosed and the sooner the better, because if discovered in time there will be little difficulty in making the correction. But if the defect runs on, expensive litigation will be the result as shown in the above example. Or again the owner contracts to sell, an ab- stract is prepared, the error shown, the trade fails, a damage suit results. Or in case the owner had contracted to buy and had paid part of the contract price, his title could not be ac- cepted for a loan he desired, his purchase could not be completed, he forfeited the money already paid and lost many times the expense of secur- ing an abstract, and of having his title cor- rected. Delays are expensive. In time of peace order cm abstract. A few sample descriptions which have been found among the Public Records. 100 LAND SURVEY AND LAND TITLES. 1. The south side of the north end of the west half of the northeast quarter. 2. Twenty-eight acres in the northwest quar- ter. 3. The west side of lot 8, block 26. 4. Forty acres more or less off the Some nonsensical west side of the northwest quar- descriptions f,.,, that have wr ' caused 5. Beginning at the northwest cor- troubie. ner ^ the blacksmith shop. 6. The 160-acre farm I now own. 7. All the property I own in Newman. 8. The east division (!) of the southwest quar- ter. 9. One fourth of eighty acres of the undivided land in section 23. 10. Beginning at the northwest corner of Salis- bury's land. (Where does Salisbury own?) 11. The undivided interest in three-eighths of the northeast quarter. 12. A house and lot east of the United Breth- ren Church. THE ABOVE SAMPLES FEOM ILLINOIS. 13. Commencing at the northwest corner of the fourth row of grapevines in the Brown vineyard in the first ward of Sandusky. 14. Thence northerly on a line of post holes now dug for a new fence. (Ohio.) DEFICIENT DESCBIPTIONS. 101 15. Part of the Hallam Tract in Perkins Town- ship, beginning at the north side of the driveway to the home of Seth Tompkins. (Michigan.) 16. Commencing at a rock on the top of a hill east of my barn; then west to the creek; up the creek seven miles ; then back to the rock. ( California. ) 17. The east half of my farm in Wayne Coun- ty containing about 5000 acres. (Califor- nia.) 18. Four acres in the shape of a heater on the north side of the road in the northwest corner of Section 10. (Illinois.) 19. All the west part of lot 8 in block four which lies west of a certain fence now standing on said lot eight, being 100 feet more or less of said west part. (Missouri.) 20. Beginning at an iron stake driven in the ice, etc. (Michigan.) 21. One grain of sand off the north The side of lot 10, etc. (Newago conveyed. 22. Beginning at the southwest cor- ner of Mol's land sold on a contract, on the north line of Lake street, etc. 23. Commencing at a point in the center of the plank road east from an oak tree on which the gate opposite the Hindshill house hangs, etc. 102 LAND SURVEY AND LAND TITLES. 24. Thence along the center of the driveway to a clump of bamboo; thence in a westerly direction to a water tank; thence north- erly along a picket fence, etc. (Wiscon- sin.) 25. An old man in explaining the different lengths as given of the adjoining line A variable o f two lots said. "I tell you, it was measuring . * tape. like this. Old man Hilly er drew them deeds, and he and I measured them off. We used the painter of the boat which was feet long, but it might have stretched or got knotted with use." (New York City.) 26. Thence north to a point two feet north of a red barn, etc., and reserving the right to remove said barn. (The barn was prompt- ly removed and no other monument erected. Michigan.) 27. Beginning at the southwest corner of the barn, since removed, etc. (Boone Co. Mo.) SUGGESTION. Visit the office of your ab- stracter and ask to see some misdescriptions in your own county. Examine an abstract or a deed and see if you can find an error in the description of the property as given. CHAPTER X. ORIGIN OF INDIVIDUAL, OWNERSHIP. "In the beginning God created the Heaven and the Earth." "So God created Man in his own image, in the image of God The first created he him, male and female temporal owner. created he them; and God blessed them and called their name Adam in the day when they were created ; and God gave Adam dominion over the Earth and all things therein. ' ' Thus is the original record of ownership given in the first chapter of Genesis. For the history of ownership from the time of Adam to the close of the flood when Noah and his sons were in possession of the land, the reader is re- ferred to the first eight chapters of the same book. During the eons of the time from Noah to near one thousand, A. D., there is little record of individual possession, as the lands of the Earth were held by tribes, kingdoms, monarch- ies and empires, as success in war gave the victor dominion over the possessions of the vanquished. About 1000, A. D., the method of owner- ship known as "the feudal system of land ten- (103) 104 LAND SUEVEY AND LAND TITLES. ure" had its rise in England whereby a "lord" was granted the use of a separate The feudal b 0( iy of land but on the condition system of land tenure, that he would furnish the king with men to make up the king's army when so required. His ownership was not of the soil but only of its right of use for a time and even this right did not descend by inherit- ance, and he could not convey his possession without consent of the king. History relates that when William the Con- queror became kind of England, he confiscated all lands of those who had supported Harold, Earl of Wessex, and then either by persuasion or force, induced (?) all other land owners to surrender their possessions to the king and they to receive them back as vassals of the crown. Thus in theory all land belonged to the king and the vassal had the use of it only so long as he rendered the required service to the crown. Those who held land directly from the king were called barons; they in turn divided their holdings to under lords, requiring from each some service in return. The second party could also sub-infeudate it and this was carried down into still other divisions to many smaller parts. As an example in the days of Edward the First, one Roger of St. Germans held certain land from Robert of Bedford, as his immediate ORIGIN OF INDIVIDUAL, OWNERSHIP. 105 overlord ; Robert of Bedford held the lands un- der Richard of Ilchester, who held under Alan of Chartres, who held under King of Scotland, who held under the King of England. Nor was the idea of single possession in- ferred when King James the First of England gave to the colony which founded Jamestown, a charter to possess "all that space and circuit of land lying from the sea-coast up into the land, throughout from sea to sea, west and northwest. ' ' It is not possible for us to trace the owner- ship of America back to its origin, except as we read the records in the underlying strata, or study the history of past ages, by the metal and flint ofttimes found in cliff and cave. For prac- tical and for all legal purposes we may confine our investigation in the origin of soil owner- ship to that period of time since the discovery of America by Christopher Columbus. Columbus found here the American Indian who lived under tribal government and who wandered from district to district, removing from place to place as the tribe was led by con- quest or driven by necessity. The Indian, un- til very recent years, had no idea of private ownership of land, but his possession was held by the tribe. Recently the United States Gov- ernment has allotted many quarter sections to the Indian in a division of the remnant of his possession prior to that of the White Man. 106 LAND SURVEY AND LAND With the discovery of America, began own- ership of the country by civilized nations, and history recites that "Columbus took possession of the new continent in the name of The first the crown of Spain." He made no partition . . J of record. division of the new continent and none was attempted until Pope Al- exander VI sought to "partition" the "New World" between Spain and Portugal. In 1493 he issued a proclamation * ' dividing the Heathen Lands into two equal parts" by a North and South line located one hundred leagues west of the Azore Islands. To Portugal was alloted all of the "new lands" lying east of this line while Spain was given all lying to the west. And this is the first "partition suit" recorded of American Soil, though it was to nations and not to individuals. The American continent, however, became more divided as other of the European explor- ers reached its shores and Spam's ownership was soon in dispute at many places. France early took possession of the valley of the St. Lawrence. The Holland explorers settled along the Hudson. Men from England located about the James River and the waters tributary there- to. None of the above peoples, however, under- stood how broad was the new continent, how vast was its area or how far from the Atlantic shore did the land extend westward to reach ORIGIN OF INDIVIDUAL OWNERSHIP. 107 the waters of the Pacific. We read "that Cap- tain John Smith explored up the James River expecting to find a passage at its head waters to the Pacific Ocean," having in mind the thought expressed in his charter from the king, a possession "from sea to sea," as stated above. For a long time the same idea prevailed, of the short distance between oceans and whenever the king of England disposed of land in Amer- ica to land companies he described ii; as "beginning at the western bor- of the der of the Atlantic Ocean and run- states. fling westward to the sea." When later the Mississippi Eiver was dis- covered and its existence made known to the people, its shore was made the western bound- ary of the United States and so remained until the ' * Louisiana Purchase. ' * Up until the time of the Revolutionary War the land comprising the United States east of the Mississippi, except Florida, was claimed by those colonies from the European countries which had made settlements along the Atlantic. Florida and the territory west of the Missis- sippi was held by Spain in pursuance of her dis- coveries and explorations. At the close of the Revolution the Thirteen Colonies possessed the territory of the United States east of the Mississippi except the Span- 108 LAND SUBVEY AND LAND TITLES. ish holdings in Florida, for with the in America. Declaration of Independence the American colonists declared for free and absolute ownership of the soil, no longer held under a feudal system and no longer sub- servient to any King. By the Declaration of Independence all title to colonial domain passed from the king to the people of the United States. Thus were freeholds created. Men were free, for the first time, to convey real estate by deed without consent of any sovereign. But owing to conflicting claims of the va- rious colonies it was with difficulty that an union was accomplished. Virginia was the largest claimant to territory west of the Alleghanies, from the Ohio to the Great Lakes. Much of this was disputed by Massachusetts and Con- necticut, and it was not until as late as 1790 that all of this disputed area was ceded to the general government of the United States and the original thirteen colonies merged into one nation with individual boundaries near what they are today. This was the origin of individual ownership in America, the colonists confirming possession of those in occupation under claim of title in the separate colonies and the remaining portion of the vast domain now belonging to the United State of America. ORIGIN OF INDIVIDUAL OWNERSHIP. 109 Acquisition of new territory has enlarged the area of the United States, but title to all parts of the country later acquired either territory *>y conquest, accession or purchase, acquired by and not owned by individuals at the states date of its acquisition, passed to the United States Government, and is alienated only by authority of the Congress and under direction of the President. In tracing ownership of many titles in Flor- ida, Texas, California, some states formed from the Louisiana Purchase and in other states, the origin dates back of United States possession of the territory, owing as above stated, that ownership of many private tracts was con- firmed in the individual possessor when the ter- ritory was ceded to the United States Govern- ment. The Government, after acquiring a territory, subdivides it into suitable tracts for settlement as explained in the previous lessons on survey- ing, and disposes of smaller tracts to individ- ual purchasers who are also free to transfer them as they may choose. SUGGESTION. Read the ''Articles of Confed- eration" and study the map of the United States shown in figure VII at page 66. Note carefully the accession of territory. CHAPTEE XI. EXCHANGE OF OWNERSHIP. With the ownership of the public domain in the United States Government and that of par- ticular tracts of land in some single individual, the next condition is to inquire how this "pos- session of fact," this "right of occupancy" may be transferred from one to another. It must be understood at this time that the discussions in this volume have to do with real estate or landed property, and while Real estate some of the rights of its enjoyment property ^ 1 ma y be considered under the term distinguished, personal property, the ownership referred to here is of the soil, and classed as ' * real property. ' ' 1 It is stated that A. has sold his farm to B. or has transferred his rights to B. Now it is a fact that there is no change whatever in the nature, character or appearance of the "farm," the land itself remains just where it was, but the "title" to the farm has been handed over, 1. For a comprehensive explanation of the terms real and personal property the reader is referred to "Laws of Real Property," chapter I, by Geo. W. Warvell. (110) EXCHANGE OF OWNERSHIP. Ill the " rights of succession" that A. enjoyed have been passed to B. for his use and pleasure. Unlike the transfer of personal property, which is itself delivered, handed over and taken away, the transfer of real estate is accomplished by the giving over only the evidence of the ex- change of ownership. In early times this was accomplished by very crude methods. It is related that at first when- ever one party intended to sell another a piece of land, they went upon the land to be sold, clasped hands, and before witnesses spoke certain set phrases, one to the other, of offer and accept- ance, broke a clod of the earth between them, or the seller gave to the purchaser a twig or spear of grass plucked from the tract conveyed, and by this elaborate formality transferred the possession. Such conveyance was styled "Liv- ery of Seizen." Later it is said the parties broke a stone be- tween them and yet still later both signed some sort of compact and then tore it in half, plac- ing one part of the stone or one piece Early O f j^e parchment in some place of methods of _" j ru- transfer. safe keeping reserved for this use, the remaining half being passed to the new owner. When the party in possession of the exchanged fragment desired to prove ownership he could go to the portion on de- posit and if the indentures of the part on de- 112 LAND SURVEY AND LAND TITLES. posit fitted the torn or broken edge of the half he held, it was said to " witness" the title. This custom and method may have given rise to the expression now so commonly nsed in the open- ing clause of contracts, beginning, "This in- denture witnesseth," etc. The above methods proved too cumbersome and crude for our modern times, and great im- provements have been accomplished in the man- ner of transferring the ownership of real prop- erty from one to another. It must be under- stood however that there are but two ways by which property is passed from one to the other, viz., first, by the act of individuals and, second, by operation of law. The simplest method the "act of individuals" is accomplished by the party selling signing a paper reciting that for a certain sum named he does bargain, sell and transfer to the party purchasing, naming him, certain lots or land, describing it. This instrument of writing by reason of it witnessing the act or Origin of deed of the parties is called a ' ' deed the term , ,, , . "deed." of conveyance" and fully explains the transaction. It names both par- ties, recites the amount given in exchange for the property and describes the property sold. When the purchaser receives such a "deed" the next step is to have it copied in a book kept and preserved for this sole purpose. He EXCHANGE OF OWNERSHIP. 113 takes it to the public recorder who makes a copy of the instrument and thus preserves the his- tory of the transaction in the public records. The records of deeds are preserved in a se- cure vault so that in case the original becomes lost, proof of the transaction can be referred to. An owner of land often desires to convey it, and to have the conveyance not to take effect until his death. He does this by writing out his directions as to how his property shall be divided and disposed of at his death, The win as g^d this instrument of conveyance distinguished. * from a deed, is called a "will" because it ex- presses the will of the former owner as to the transfer of his property. The com- plete transfer, however, requires the aid of a proper court to "prove the will," and while the conveyance is considered the act of the liv- ing it needs some "operation of law" to accom- plish it. Where a land owner dies leaving no will or direction as to how his property shall be divided, his estate descends by inheritance or entirely by operation of law, and his heirs share in the lands and goods according to the "laws of the state" where the property is lo- cated. Again, it often happens that a land owner needs to borrow money for some enterprise and gives as security for its repayment a pledge of 8 114 LAND SURVEY AND LAND TITLES. his land. This pledge is a written instrument in form of a deed and is in fact a sort of con- veyance of the property to the party furnishing the money. It recites the parties, the amount of money borrowed, names the rate of interest, states when the money is to be repaid, etc. It further provides that if the borrower wh OWns the land f *&* to re P a F the sum borrowed when due, his land shall be sold under order of a proper court and some one appointed by the court makes the sale and transfers the ownership of the borrower to the party purchasing at the sale held by or- der of the court. This conveyance is wholly by "operation of law" and the original owner is as fully divested of his rights in the property as if he had made a full conveyance, himself, of the property to the new owner. One thing to bear in mind is that all trans- fer of ownership of real estate to be binding and complete should be accomplished accord- ing to the rules prescribed by the laws of the state wherein the land is located. If a deed is incorrect in its form of signa- tures, the transfer may not be complete. If the decrees of court are not properly drawn and if the processes of law are not correctly ob- served, the transfer may not be complete and the new owner might at some future time suf- EXCHANGE OF OWNERSHIP. 115 fer loss on account of either of the above er- rors. Every purchaser of real property for value should satisfy himself that all transfers, his own and all prior thereto, have been regular, and under no circumstances should he rely on the work of any one not skilled in the The methods of conveyancing. A dollar Sways* saved (?) in employing a cheap the best. "squire" to attend to such impor- tant transactions has often de- manded the payment of a much larger sum later when it was necessary to correct the error of the cheaper attorney who had prepared the deeds or who had carried the suit of foreclos- ure through court. Be advised and always re- quire the services of the best talent to be had at such times, and you will have fewer troubles in the future. SUGGESTION. Visit an abstract office and ask the abstracter for a blank deed form, and a copy of a will. Have him to explain how a title passes by each of them. CHAPTER XII. RECORD OF OWNERSHIP. The first record of a transfer of land, or the exchange of ownership is found in the seven- teenth verse of the twenty-third chapter of Genesis, where Abraham purchased a field from Ephron. The practice of keeping a public record of all the various transfers affecting the title to real estate is of recent origin. Like tribal posses- sion, the occupancy of land in former times de- termined its ownership. Later when this was exchanged by one individual to another it gave rise to the need of the evidence of Why public transfer as explained in the previous records are , . kept chapter. As the possession passed in succession these deeds were kept and always given to the last purchaser, but some were frequently lost and also in time they be- came quite bulky and cumbersome to preserve. This condition demanded a more permanent and less burdensome method of keeping trace of ownership and as mentioned heretofore the office of public recorder was created for keep- ing a record of the transfers. This official not only makes a record or copy of deeds but copies (116) RECORD OF OWNERSHIP. 117 as well all other instruments that in any way affect the title to real estate. The prime object for having a deed recorded after the purchaser receives it from the seller, is to preserve the evidence of the transaction. If then the original deed be lost the new owner of the property may go to the public record and by this official copy, prove that he had pur- chased the land and that he had the right to it. Did the new owner from a lack of interest, through ignorance or carelessness, fail to have this deed recorded and did he lose the origi- nal, he might have trouble in proving his rights. The former owner might, in a contrary mood, refuse to make another deed; or the grantor might in the meantime have died and his heirs knowing nothing of the sale, would be unwill- ing to make the transfer. In either case the purchaser would be to the expense of securing a new deed or failing in this he Not an would have to pay the cost of an ex- deeds are , .. , ., ,. recorded. pensive lawsuit and at the same time be in jeopardy of losing his prop- erty altogether. Yet, despite this fact, there are many old deeds lying in bureaus, desks, or safes, not yet recorded, which is a very dan- gerous practice. One other reason for having a deed recorded immediately after the purchase is completed is to proclaim to the public that you have acquired 118 LAND SURVEY AND LAND TITLES. the property. In most states the first deed of record is paramount in right of title; and did your seller make a second deed to the property after executing the deed to you, and did the second purchaser put his deed of record first, ahead of yours, nis title would prevail and you would have none. Of course you might bring suit against your grantor but you put yourself in need of a law- suit and in the meantime your seller may have moved far away. Not all states have a law requiring a record of the original deeds, 1 and a notable example is that of Louisiana. Here notaries public are commissioned to draft all deeds each in his sep- arate district, and when the deed is TJj e executed, the notary sends it to the method. public recorder who makes only a brief record of the instrument and no complete copy at all. The original instru- ment is then returned to the notary's office from whence it came and when a sufficient num- ber have accumulated they may be bound into a volume. These original deeds remain about the no- tary's office, not filed in secure vaults but lying 1. Laws requiring lands transfers to be registered were passed by the early colonies as follows: Massachusetts in 1636 and 1641, Connecticut in 1639, Virginia in 1639, New York in 1665, New Jersey in 1676, Maryland in 1692, Penn- sylvania in 1705, North Carolina in 1715. RECORD OF OWNERSHIP. 119 in desks, etc., until Ms death. After this event the deeds found among his effects are gathered together and "thrown" into a vault, secure at least but no doubt with some missing, and in- deed in poor condition for use in proving 1 rec- ord or showing a succession of ownership by reason of their not being properly indexed and arranged. These vaults are known as the "no- tarial archives" and are the repositories of original deeds of transfer. The final preservation of the originals is per- haps to be commended, were they arranged and indexed suitable for reference. But their being allowed to remain so long in the office of the notary, insecurely preserved, is to be de- plored, especially since the public record of the transaction is not complete. The office of the recorder is the safe reposi- tory of all instruments affecting ones interest in land or any real property. If one has loaned another a sum of money and taken in evidence a writing, the party fur- nishing the money should protect himself by having recorded the instrument reciting the loan and describing the property pledged, which instrument is known as the mortgage. The re- cording of this paper declares to the public the transaction and the borrower cannot then transfer or sell his property and thus elude the debt. 120 LAND SURVEY AND LAND TITLES. And when the borrower or owner of the prop- erty has repaid the debt and received a state- ment that the lien of the mortgage is released as to his property, he should at once have this copied in one of the public records in order to preserve the evidence of payment. For with the utmost care the original papers are liable to get misplaced or destroyed, and time and money are required to secure duplicate copies. The actual labor of preserving the records of all transactions among men in their life time is accomplished in main as outlined above ; but when a man dies his property is transferred to his heirs through the assistance of the office of the Probate court and not directly by the re- corder. If the deceased left a will, his will is proven in this court and when so made public, it shows to whom his estate is divided. If no will is found this court determines who are the heirs and they then share the estate. Thus then are the records of the various transactions affect- ing a title to a property preserved in order that at any time an owner may exhibit his rights. In England however the records of land transfers are not kept as in this country, and a person about to sell a parcel of land English would have his solicitor prepare "rovin 1 f ^ rom ^ ne original instruments an ab- titie. stract of all matters upon which the seller intended to prove his title, in- RECORD OF OWNERSHIP. 121 eluding deeds, wills, registers of births, deaths, and mortgages, pedigrees, etc., whether of rec- ord or not, which in any way show ownership. Every state has its system of registration of conveyances and the general rules of construc- tive notice are the same in all States ; out of this system of recording conveyances and the doc- trine of constructive notice has grown the mod- ern American business or profession of ab- stracting land titles, as explained in the next succeeding chapter. Also the guaranty certifi- cate and policy of title insurance is founded on these principles of recording the various trans- fers of ownership and the tracing of ownership and right of possession to the present owner. SUGGESTION. Visit the office of your re- corder and ask to see the public records of deeds, mortgages, releases, etc. CHAPTER XIII. THE ABSTRACT OF TITLE DEFINED. An abstract of Title is a condensed history of the title to land, giving the material portions of all instruments or records pertinent to the title of the land in question. These instruments are more particularly deeds, mortgages, trust deeds, tax assessments, judgments, liens, rights of conservators for in- sane persons and minors or profligates, of wid- ows, parties to suits, etc. An abstract should show every possible fact which in any way may become a cloud on the title or which tends to exhibit the The unclouded ownership of the tract oJ?*^ ement of land under consideration. The abstract. matters should be prepared and ar- ranged in a methodical and accur- ate manner, only by those who are experts in such matters and who are familiar with the pub- lic records and well versed in real estate law. The term abstract of title does not necessar- ily mean a condensed copy, but it implies a work requiring learning, skill and labor. (Banker v. Caldwell, 3 Minn. 94.) (122) THE ABSTRACT OF TITLE DEFINED. 123 Persons engaged in the business of making abstracts of title occupy a relation of confidence towards those employing them, second only in the sacredness of its nature to that between an attorney and his client. The abstracter of titles is indeed something more than a mere business man. He is not the servant of the moment, he builds not for the present alone but for the fu- ture as well. His work well done will endure. By such service and showing, a purchaser or an owner may know the condition of any title un- der investigation. The term abstracter or abstracter of title is of recent coinage and use, designed to describe one who prepares, from the public records, a history of the transfers and other matters, af- fecting a title to a property. The work of the American abstracter has been developed almost entirely within the past fifty years. The Early laborers in this field styled and^the 61 " themselves conveyancers; later, ab- examiner. stract makers which has been con- tracted into abstracters. Examiner is also a term used though more commonly ap- plied to an attorney who examines the abstract after it has been prepared by the abstracter, in order to determine if the steps taken in pass- ing the title from one owner to another were legal or according to the prescribed statute, and to determine the condition of the title. 124 LAND SUBVEY AND LAND TITLES. As districts grow older in their settlement land is transferred from one individual to another more frequently, and deeds, mortgages, etc., accumulate until it is no longer practical to examine the thread or chain of title by read- ing them in the original instrument; as stated in the previous chapter this condition gave rise to the need of public records. Nor is it practi- cal or possible to laboriously follow the title through so many volumes of records; and this increasing mass of records created a demand for their scientific indexing and the exhibit of the essentials of every instrument or transfer contained therein affecting the title under con- sideration. The Supreme Court of Illinois has defined an abstract as "a summary of the facts relied on as evidence of title. It should contain a note of all conveyances, transfers or other facts re- lied on as evidence of the claimant's title, to- gether with all such facts appearing of record as may impair it." (Sec. HI. Rep. Vol. 117, page 149.) By some the abstract is often ea^stract confused with a title itself. Yet a distinguished careful study of the definition quoted above will disclose that the right of ownership is the title while the history or examination of the records is the abstract and shows the condition of the title. THE ABSTRACT OF TITLE DEFINED. 125 A merchantable abstract is one which, has been prepared by a competent abstracter, an abstractor who by his years of experience and painstaking has proved his competency. Abil- ity, reliability, and responsibility are the three characteristics which go to determine the mer- chantability of abstracts; lacking any one of these essentials the work of any abstracter of titles is bound to prove a failure. The terms good and bad may be applied to the abstract as it describes the work of the ab- stracter but neat and complete would be bet- ter terms; as applied to titles these terms will be discussed in a subsequent chapter on the title. It must also be understood that the abstract is not in itself a guaranty of the title. Do not be so deceived. It is merely the exhibit of the records showing the condition of the title. Af- ter an abstract is secured have some good at- torney examine it to determine the condition of your title. The methods of preparing an abstract vary in every locality since in the older settled coun- tries, where real estate values are high larger and more complete showings are required. In a newly settled country where transfers are few the abstract is little more than a mere index, while in the early settled regions they contain all the essential points of every transfer so that 126 LAND SUBVEY AND LAND TITLES. the condition of a title may be determine! by a study of the abstract alone and no reference to the records themselves is required. English Abstracts of Title are in a large part prepared from the original unre- Engiishand corded instruments of transfers and abstract? family histories or pedigrees, and compared, they show only the interest of some one individual in the property. American abstracts are prepared from the pub- lic records of all original instruments of trans- fer, condensed and arranged in chronological order, so that they show every item connected with or affecting the title abstracted and they disclose the entire ownership of the property. An abstracter must use due care and dili- gence in the examination of the records, and he cannot rely on mere indexes ; he should make a full and true search of all the records and close his work by an explicit statement or certificate that * ' all matters affecting the title are shown. ' ' A perfect and complete abstract of title can be prepared only by the aid of properly con- structed indices, and the meagre facilities main- tained by the public offices are wholly inade- quate and abstracts made by public officials, and from such sources only, are not to be relied upon. The general rule is that in the absence of fraud an abstracter is liable for error or omis- THE ABSTRACT OF TITLE DEFINED. 127 sion to the party only who employs him, and not to any subsequent owner or any other per- son interested in the title. In every instance, however, an abstract com- pany should make good any loss occasioned by failure of showings in its abstracts of title, and most companies do; and the statute of each state should require it to do so. The furnishing of an abstract of title by the seller cannot be demanded by the purchaser as a legal right, but it is usually made when shall a condition in most sales by ex- 3.ri Abstrsct be furnished, press agreement in the contract be- tween the parties; but if the con- tract makes no mention of an abstract, the pur- chaser cannot later demand one. When, how- ever, a contract provides for the exhibit of an abstract of title by a day named, this must be furnished before the vendor can demand per- formance of an agreement by the vendee; and if the abstract does not show the title agreed upon at the day set for the completion of the contract, the purchaser may elect to declare the contract void. When a sale of land is complete and the deed has been delivered, the abstract becomes the property of the purchaser, and as well, when the owner of land delivers his abstract in pro- curing a loan it becomes a part of the security for the loan and may not be demanded by the 128 LAND SURVEY AND LAND TITLES. mortgagor, his heirs or assigns until the loan is fully paid. Abstracts of title to land are subjects of lit- erary property, so long as the compiler remains owner of the unpublished manuscript, and may be entered for copyright. Where lands are incorporated into a new county by a change of lines, original instru- ments need not be re-recorded in the new county, but the abstract must show all matters relating to the title. And where a party accepts a title from another person engaged in litigation, he will be bound by the decree rendered in the suit. If judgment is rendered against his grantor, his land just purchased will be liable for the payment of the judgment, until it is settled. In the event of the destruction of the county records and of the original instru- HOW when m ents of transfer as well, an ab- raords are stra<;t of titie prepared in the regu- destroyed. lar course of trade and for the bene- fit of the parties interested in the land, is evidence of title and can be recorded to prove ownership, but it must be intelligible to any one, and where there are abbreviations needing proof to explain, the abstract of title may not prevail, except by a special statute. A conveyance is not invalid because the de- scriptions are in figures or well understood ab- breviations, but abbreviations should not be THE ABSTRACT OF TITLE DEFINED. 129 used in an abstract to such an extent that the same is rendered unintelligible, and when they are so employed the abstract is insufficient to establish title. Abbreviations so far as possi- ble should be avoided altogether. SUGGESTION. Visit an abstract office and ex- amine the equipment. Ask to see the indexes, records, plats, etc. The abstracter is your friend and will be glad to see you. CHAPTER XIV. NEED OF AN ABSTEACT. The most indestructible and enduring form of wealth is the ownership of real estate. Wealth in personal property is liable to loss. Merchandise soon becomes unseasonable, and is liable to be destroyed by fire, water or other agencies. Even the house in which we live may be swept away by fire, flood, wind or earthquake. Precious stones, bonds valuable and other valuables may be stolen weaHh r l s t but if the wealth is in lands and the title is good, the enjoyment of ones investments cannot be denied, stolen, lost or destroyed. It will abide till death and then inure to the benefit of the next genera- tion; nor does the wealth of land decrease but on the contrary; it grows larger as time goes on. Every one then will do well to make some in- vestment in real estate, indestructible and sure, and if he is careful at time of purchase that the title is good, he need have no fear of fire, thief or panic, for it will stand until time is no more. (130) NEED OF AN ABSTRACT. 131 When a man buys a home, his first thought is that the house and barn must be insured, yet these are but a small part of the value of the whole farm or home. And insurance against fire or cyclone is but a small part of the risk to protect. An owner willingly pays twenty-five dollars to be protected against the loss of a couple thousand of dollars in buildings and per- haps forgets that unless he has an abstract he has no insurance whatever against the many thousand dollars invested in the land itself. It is of more importance to know you are pro- tected in the ownership of the land than that you are secured against partial loss of the im- provements. Again the owner is especially careful to know that his insurance policy is written by When to a reliable, long established and re- get an ., , ,., , abstract sponsible company while he may ac- and the ce p^ an abstract that is worthless; an value of ^ . one. abstract compiled by an incompetent, unreliable attorney or squire, one that has been put up "cheap." A purchaser of real estate should be so careful to have a merchant- able abstract that if necessary he would pay for it himself, because when he pays his good money for a property he wants to be assured he is not buying a lawsuit or only a small share in the lands. The previous chapter explained the abstract and its method of preparation and any one deal- 132 LAND SURVEY AND LAND TITLES. ing in land should know that a good and com- plete abstract can only be prepared by a skill- ed laborer and not by one who makes abstract- ing but an incident to his other work. And the abstract work should be backed by the most reliable company or firm accessible. An ab- stract is a guide and the only safe guide to pur- chasers of land or investors in real estate se- curities. The title to all real estate is involved in the numerous public records or documents, instru- ments and decrees, as they are kept in the sev- eral public offices and there is no one instru- ment in the title of sufficient importance in it- self to render unnecessary an examination of all of the records for the purpose of ascertain- ing the true state of the title as it exists. Many people believe and some often insist that a warranty deed is all sufficient A warranty an( j ^i Power of Attorney; CHARLES E. LAMBERT Dated May 6, 1860. Rockville, Indiana. J Recorded June 4, 1863. Grants power and authority to said second party to contract, sell and convey SW^-NE 1 ^- 34-16-8 E. 3d P. M. in Douglas County, Illinois, for such price and terms as he may deem best and to execute any necessary conveyance to con- vey interest of first party. Executed under seal and ack. by A. J. Carmany, Judge of the Superior Court of Los Angeles Co., California. 8. Same notation as in footnote 5. 148 LAND SURVEY AND LAND TITLES. LAWRENCE S. BOOTH by CHARLES E. LAMBERT, his attorney in fact' (9) to TAYLOR BROS., Newman, Illinois. Deed Volume 20, page 577. Instrument Warranty deed, Dated June 4, 1867. Recorded July 12, 1869; Consideration, $4500.00 Ack. W. M. Coval, N. P., Marion County, Indiana. CONVEYS : The SW% of NE% Sec. 34-16-8 E. 3d P. M. in Douglas County, Illinois. Mortgage Vol. 24 page 279. Instrument Mortgage. Dated April 5, 1870. Recorded April 5, 1870. To secure $3000, due April 5, 1875, with int. at 5% semi- annually Ack. before W. H. Fry, N.P., Douglas County, Illinois. A. A. TAYLOR and C. O. TAYLOR, Bachelors, Newman, Illinois, ( 10 ) (10) to A. D. LANQWORTHY, Chicago. CONVEYS : SW^-NEi/2-34-16-8 E. 3d P. M., in Douglas County, Illinois. 9. Was Lawrence S. Booth living June 4, 1867? If he had died prior to this date the power of attorney under which this deed was executed had been cancelled by his death, and the title had vested in his heirs or devisees. 10. It cannot be determined from the showings if the grantors in number ten are all the members of the firm of Taylor Bros, grantee at number nine. This fact must be established. The grantees at number nine should have been set out separately. An affidavit of some one who knows all the members of the firm of Taylor Bros, is perhaps the only evidence available in explanation. A SAMPLE ABSTRACT. 149 In the Circuit Court of Douglas County, Illinois, At the October Term, A. D. 1872. In the Matter of A. D. LANGWORTHY (11) vs. A. A. TAYLOR ANNIE TAYLOR ^Foreclosure." JOSEPH TAYLOR Case No. 2475. MILDRED TAYLOR and FRANK PAGE. Bill sworn to filed in said court May 10, 1872, represents that A. A. Taylor and C. 0. Taylor being indebted unto complainant in the sum of $3000 did on April 5, 1870, by their mortgage deed of that date convey to said complainant the SW-NE-34, Tp. 16 N. E. 8 E. 3d P. M. That said mortgage provided in case of default in payment of interest when due or for nonpay- ment of taxes, said debt would at option of said mortgagee, become due and payable and said 11. This showing of the foreclosure is a very brief exhibit. The regular procedure is to abstract the bill, summons and service, decree to sell, report of sale, con- firmation of report and deed. In some states a commis- sioner executes the orders of the court while in others it is the master in chancery and in a few the sheriff. This and all court proceedings must be carefully con- ducted or no title will be conveyed. If all parties inter- ested are not properly notified or served with notice, any decree rendered will not be binding as to those without notice. In this case, the examiner knows that C. O. Taylor had an adopted son, C. D. Taylor, who was not so served. Hence it will be necessary to secure a quit claim deed from him for his one-sixth interest. 150 LAND SURVEY AND LAND TITLES. mortgaged premises be foreclosed and sold. And whereas the interest is past due and un- paid since April 5, 1871, and said complainant has declared said mortgage foreclosed and the whole of said sum due. It is also represented that since the execution and delivery of said mortgage, one of the mort- gagors, towit, C. 0. Taylor, has departed this life intestate, leaving him surviving, his widow, Annie Taylor, and his children, Joseph Taylor and Mildred Taylor. That said children are minors and have no legal guardian resident in said state. That the estate of the said decedent has not been administered. That Frank K. Page is tenant on said premises whose lease expires June 1, 2000. Complainant prays that an account may be taken under direction of the honorable court to determine the amount due. That decree may be entered ordering said defendants to pay such amount found to be due and in default thereof that said mortgaged premises or so much as may be necessary, may be sold under the direction of this court to satisfy said debt and costs of this proceedings. That summons may issue against each of said defendants. Summons issued, returned and in files shows service regular on each of said defendants. W. Thomas Coleman, an attorney of record of said court, filed answer as guardian ad litem, for said infant defendants. A SAMPLE ABSTBACT. 151 Decree rendered at same term wherein the court finds all defendants duly served; that matters alleged in bill are true ; cause referred to the Master who has filed report, and his re- port approved. Court finds there is due said complainant $3516.20. It is therefore ordered and decreed that said defendants or some one for them pay said sum together with attorney's fee and costs of suit within twenty days from filing of this decree and in case of default said mortgaged premises are to be sold. The com- missioner of said court shall make sale at pub- lic outcry after giving notice of the time and place as by law directed and report his acts to the court at the present or next term hereof to which time the cause stands continued. C. E. BONNEB, Judge. At March term of said court, A. D. 1873, comes said commissioner and makes report that in pursuance of decree and according to previous notice given he did on November 1, 1872, make sale of the SW%-NE% of Sec. 34-16-7 E. 3d P. M. 12 to W. W. Skinner for $3600, he being the highest and best bidder at said sale. Sale made subject to equity of redemption as by law re- quired. 12. Here it will be noticed that the commissioner sold the wrong land, selling by his description a tract six miles too far west. Therefore, no valid conveyance is made unless further advertisement and another sale is had. 152 LAND SURVEY AND LAND TITLES. Decree confirming report of sale filed March 31, 1873, wherein the court finds sale made in pursuance of terms of decree and according to law. It is therefore decreed that if said prem- ises so sold are not redeemed, as by law pro- vided, that at the expiration of redemption pe- riod the legal holder of the certificate of sale will be entitled to a deed. Deed Vol. 35, page 416. RUDOLPH H. KAGEY, Commissioner of Douglas County, Illinois, (12) to R. K. SHEIXEDY, assignee of W. W. SKINNEB Commissioner's Deed. Dated June 1, 1874. Recorded June 1, 1874; Consideration $3600. Ack. before Fred L. Wright, Clerk of the Circuit Court of Douglas County, 111. SW%-NE-34, Tp. 15 N., R. 8 E. 3d P. M. 13 R. K SHELLEDY, 1 _ , o 4.^ I In Probate, Death and Estate. In the County Court of Edgar County, Illi- nois, at October Term, A. D. 1874. In the mat- ter of the Estate of K. K. Shelledy late of said county, deceased. 13. Again a wrong description, six miles too far south, and it will be necessary to get a new deed from the offi- cer of the court, or that impossible owing to lapse of time, a deed must be secured from A. A. Taylor, if living, and if not, from the heirs of Taylor Bros. Or this failing, a suit to quiet title must be employed, in either event a costly procedure for the owner who had no abstract to earlier discover and point out the defects. One cannot rely on a court deed to make a good title; lawyers and others are liable to err. A SAMPLE ABSTRACT. 153 Petition of H. L. Burgoyne sworn to and filed October 10, 1874, represents that E. K. Shel- ledy departed this life testate while sojourn- ing in Egypt, on Sept. 1, 1874. That by the last will of said decedent petitioner is nomi- nated executor thereof and that he is willing to undertake the office and trust confided in him (NOTE. Heir ship is not given.) Letters testamentary issued to said H. L. Burgoyne, October 10, 1874. Publisher's certifi- cate filed Dec. 5, 1874, shows notice had for ad- justment day. Inventory filed and approved Nov. 1, 1874, lists SW-NE-34-16-8 E. 3d. P. M. in Douglas County, Illinois, "title believed to be perfect and clear of incumbrance" and land in the val- ley of the Nile in Egypt. Final report filed and approved June 1, 1876, shows all claims against said estate paid and said executor discharged. Files 102,013. Last will and testament of B. K. Shelledy proven in open court by H. C. Gerke and Cas- per 0. Westermeyer the two attesting witnesses thereto admitted to probate and recorded in Will Becord 0, at page 100, recites as follows : "In the Name of God, amen. I, B. K. Shelledy, bachelor, gentleman, late of Illinois, U. S. A., now of Blarney Castle, County of Cork, Ireland, do make, publish and declare this to be my last will and testament. 154 LAND SURVEY AND LAND TITLES. It is my will and I give and devise all my worldly effects and estate, both real and per- sonal, wherever situated and of every kind and nature to my beloved friend, M. P. Bouslog of New Orleans, Louisiana, U. S. A., save and ex- cept any interest I may acquire in Egypt. And I do hereby nominate and appoint H. L. Burgoyne, executor of this my last will and tes- tament and direct that he be not required to give bond. R. K. SHELLEDY (Seal). 14 Signed and sealed in the presence of us and in the presence of each other, who at his re- quest and in his presence, hereunto attach our signatures as witnesses. H. C. GERKE, Edwards ville, Illinois. CASPER 0. WESTERMEYER, Dublin, Ireland. " "1 Note. There Is no Probate M4) t USL G L f tWS ertate n me r f record in Douglas County, Death and Estate. Illinois 14. Since the heirship of R. K. Shelledy is not shown this must be determined in order to pass title to the property, not devised by his will, to the proper persons. In the inventory of this estate it is stated that the title is "believed to be perfect," but from the foregoing notes it will be observed there were many defects and in fact he had no title, other than a squatter's title, or perhaps better, a title by limitation. A SAMPLE ABSTRACT. 155 Miscellaneous Record 3, page 461. Filed Jan- uary 4, 1879. (15) AFFIDAVIT. STATE OF MISSISSIPPI, ) COUNTY OF JACKSON, ) A. B. Marriott, upon affirmation, says he well knew M. P. Bouslog during his lifetime. That the said M. P. Bouslog departed this life intes- tate, Dec. 1, 1876, leaving him surviving no wife, but Olive P. Bouslog, his daughter. 15 That said deceased left him surviving no other child or children nor descendants of deceased child or children. A. R. MOBBIOTT. Subscribed and affirmed before me this 10th day of January, A. D. 1877. (SEAL) CARROLL D. JTJDSON, Notary Public. OLIVE P. BABBOTTB 1 Plat Book B ' page 47 ' (IQ\ tn I Dedication of Plat THE PUBLIC I Dated April 7 * 1880 ' J Filed April 15, 1880. A survey and subdivision of the 34-Tp. 16 N., E. 8 E., 3d P. M. was made April 7, 1880, by George Vaughan, the county surveyor of Douglas County, Illinois, at the request of Olive P. Barbour the owner of the land so plat- is. The devisee of R. K. Shelledy leaves one child, and his estate not being probated, title by descent rests on the affidavit alone. This does not and cannot relieve the property of any debts the decedent may have had. 156 LAND SURVEY AND LAND TITLES. ted, who on said date acknowledged said plat to be known as the original town of Barbour- ville, Illinois, and dedicated all streets, alleys and parks to the use of the public forever. In said plat lot number ten in block number four appears of record. Deed Vol. 65, page 126. Warranty Deed. Dated April 20, 1880. Filed April 22, 1880. Consideration $500. Ack., W. H. Hardy, Jr., N. P., Waukesha County, OLIVE P. WHITCOMB M and G. E. WHITCOMB, her hus- band, (17) to WALTEB R. TAYLOR, Kala- naazoo, Michigan. Wis. Conveys lot number ten (10) in block number four (4) of the original town of Barbourville, Illinois. Reserving a vendor's lien to secure $250 balance of the purchase money. It is also a condition of said conveyance that no building be constructed nearer than twenty feet of the street line of said lot. CERTIFICATE." STATE OF ILLINOIS, QJQ COUNTY OP DOUGLAS. (General.) We hereby certify that the fore- going abstract is a correct abstract of the title 16. Now it must be shown that Olive P. Bouslog, Bar- bour and Whitcomb are the same person and that she has no divorced husband who may have an interest in the property. 17. The certificate of an abstract should be full and conclusive. It is in this part of the abstract, where the responsibility lies, and every abstractor should make his A SAMPLE ABSTRACT. 157 to the land described in the caption thereof; that said abstract correctly shows all matters affecting or relating to the said title which are of record or on file in any of the public offices of said county, including conveyances, deeds, trust deeds, tax deeds, wills, contracts, mort- gages (satisfied or unsatisfied), mechanics' or other liens, attachments, certificates of levy, suits pending or notice of Us pendens, special proceedings and probate proceedings; that all instruments are regular in form and signature, are executed under seal, and all acknowledg- ments are in conformity with the statutes, un- less otherwise noted. (Judgments.) We further certify that there are no judgments or decrees of any courts, or transcript of same, writs, returns or notices of Us pendens therein registered, recorded, dock- eted, or otherwise a matter of record in any of the public offices of said county, rendered with- in eight years last past against any parties who have been record owners of said land dur- ing said period, except as shown, to- wit: M. P. Bouslog. Olive P. Whitcomb. Olive P. Bouslog. G. E. Whitcomb. Olive P. Barbour. Walter B. Taylor. certificate complete In its statements covering all the points set out. Few people fully appreciate the respon- sibility under which an abstractor is placed or what wor- ries and burdens are his. 158 LAND SURVEY AND LAND TITLES. (Bankruptcy.) We further certify that said abstract also shows all bankruptcy proceedings or certified copies of orders approving bonds of trustees in bankruptcy proceedings, by or against any party, who, within one year last past has been an owner of record of said land, which are on file or of record in said county. (Taxes.) We further certify that we have examined the tax judgment, tax sale, tax re- demption and tax forfeiture records of said county, and there are no unsatisfied tax judg- ments unredeemed or uncancelled tax sales ex- cept as shown, affecting the title to the land hereinabove described within the four years next preceding the date of this certificate, and that the taxes for 1912 and prior years are paid in full. Not certified as to special assess- ments for improvements. All taxes for the current year became a lien on April 1st, last. This abstract consists of twelve pages and seventeen items numbered from one to seven- teen both inclusive, and examination begins with date of entry from the United States Govern- ment. Dated at Tuscola, Illinois, this 1st day of May, A. D. 1913, at 2 o'clock, p. M. THE DOUGLAS COUNTY ABSTRACT & LOAN Co. By C. C. KAGEY, Secretary. (Corporate Seal) PART THREE. This division explains the method of owner- ship and the legal instruments employed in the transfer of property rights in land. It deals more with the legal and commercial part of land transactions rather than with the mathematical phases as did the preceding section. (159) SUBJECTS OF THE THIRD DIVISION. PAGE Titles - 161 Alienation of Title - 172 Conveyancing by Individuals - - 181 Deeds - 189 Mortgages and Releases - 202 Estates Intestate - 212 Wills Estates Testate - - 223 Judicial Sales - - 231 Leaseholds and Minor Estates - 235 Adverse Titles - - 240 Land Values and Their Increase - - 246 Title Insurance and Guaranty Certificates 253 The Torrens System of Registration - 264 The Widow's Estate ... 275 (160) CHAPTER XVII. TITLES. "Titulus est justa causa possidendi id quod nostrum est." A free translation of Lord Coke's definition of title would be, The means whereby the owner of lands has the just pos- session of his property. Titles are divided into two classes respect- ing their source, original and derivative. Origi- nal titles are those acquired either tJ source, by (1) discovery, (2) occupancy, (3) conquest, or (4) cession. From these terms it will be seen that an original title can- not be held by an individual but rests in a na- tion. (1) Formerly the mere discovery of land, not subject to any civilized nation, was deemed to vest the title to such lands in the nation whose subject made such discovery. In later times however the mere discovery without occupancy will not create a title and the exploration, only, gives the first right to occupy and assert title. (2) It is held that occupancy to acquire title must be effectual and a nation acquires title only over such part of the new territory as it may control by the influence of its settlements. (161) 11 162 LAND SURVEY AND LAND TITLES. (3) Title by conquest arises where one na- tion secures title to a district from another, by force of arms. More often in recent years ti- tles by conquest are confirmed by treaty and all private titles are not disturbed. (4) Titles by cession are all such as are granted by one nation to another and may be the result of conquest, purchase or exchange. Thus are original titles derived, held and trans- ferred. Derivative titles are all not included as origi- nal, and are such as may be held by an individ- ual. They are acquired and transferred by two methods only, either by (1) descent or by (2) purchase. (1) Where one receives title from a relative who dies without a will he takes by descent. The term comes from the Latin, "descenders id est, loco superior ~e in inferior em movere," that is when land after the death of the an- methods of cestor, is cast by course of law upon acquiring fo Q ne i rs which the law calls a de- a title. scent. This method is spoken of as the worthiest means of acquiring title, because it is wrought, by act of law and right of blood, unto the worthiest and next of kindred of the ancestors. (2) Titles by purchase are all those acquired by means other than by inheritance; the word purchase is here used in a much broader sense TITLES. 163 than usually understood and must be distin- guished from the idea of to buy. Titles by purchase may be subdivided into two princi- pal divisions, (a) by act of parties, and (b) by operation of law. (a) By act of parties are all titles conveyed By grant, either public or private. Public grant is the alienation of title belonging to nation, state or municipality, to some individ- ual or company, the conveyance of the state or nation being known as a patent. Pri- vate grant is a conveyance by deed from one individual to another; these deeds may be either voluntary or enforced. The first are such as are made in pursuance of a contract or agree- ment, while the involuntary deeds are such as are made by order of court in suit of foreclos- ure, etc. The private grant of an individual to the public, is termed a dedication, and is such as where a road, street or park is set aside for use of the public. The private grant of one in- dividual to another, to take effect at the death of the grantor, is a will and is discussed in a later chapter. (b) Titles derived by operation of law are classified under three general heads, (1) those arising from natural causes, (2) those arising from civil or political relations, (3) those titles arising from public policy. (1) Title to land arising from natural causes is such as may be derived by action of the wa- 164 LAND SURVEY AND LAND TITLES. ters. Where there is an imperceptible addition thereto caused by the washing of the sea, or the deposit of a stream it is called accretion. Where the land seems to rise as the waters subside it is known as reliction, and in either case the title to the new part thus formed be- longs to the adjacent owner. Avulsion is the sudden removal or deposit of land by action of the water and title is not changed by this method. (2) Titles arising from civil or political re- lations are considered under the heads of emi- nent domain, escheat, confiscation and forfeit- ure. Eminent domain is the right of a govern- ment to take, or to authorize another to take a property for public use but by giving the owner compensation therefor. It is by this right that, roads are often laid out, right of way for railroads and canals are established, when opposed by the individual owners. Escheat is the right of a government to take the property of an intestate who dies without leaving any known heirs. Under such condi- tion his property "escheats" to the state in which he lives and is sold and the proceeds are turned into the county treasury. Confiscation is the right to take property of the enemy in time of war and while usually referred to personal property, yet a govern- ment may apply it to land. TITLES. 165 Forfeiture is the term used where the prop- erty of an individual inures to the state by rea- son of neglect of some duty, more often for the nonpayment of taxes. Forfeiture for nonpay- ment of tax is based on the theory that every land owner will assist in his proportion to bear the common burden of public expense, and when he neglects or refuses so to do, Ms land is sold ; and when there is no other bidder the state is always ready to buy. Titles based on tax sales are very unstable as most of the state laws re- quire a holder of such to reconvey on his reim- bursement of the amount spent together with interest and costs. (3) Titles arising from public policy are such as arise by prescription or limitation; that is, the title is acquired by occupancy for a certain period even though its inception was without permission. To secure a title by this method, the occupancy must have been open, notorious, continuous, adverse and hostile to all the world, and for a period provided by the statute of lim- itations. The occupancy of limitation, however, need not be complete in one person but may be assigned, or inherited and the sum of the sev- eral periods of ownership may be added to- gether to establish a bar against the real owner, but this occupancy must at all times amount to a complete disseizin of the property as against the original owner or his assigns. 166 LAND SURVEY AND LAND TITLES. The foregoing outline will enable the reader to understand the nature of a title as well as the transfer; the means whereby the transfers are accomplished will be discussed in separate and subsequent chapters. Above, the title was considered with reference to its source; in ad- dition to this titles are also discussed with ref- erence to their completeness and validity, and are divided into two classes perfect and im- paired. The terms, perfect abstract, perfect title, merchantable abstract, merchantable title, good abstract, good title, bad abstract and bad title are much in common use though not always understood. Having in a previous chapter distinguished the difference between the abstract and the title, these terms may be understood separately. It may also be realized that a good abstract may disclose a bad title, and sometimes a good title is poorly set out in a bad abstract. There are few or no perfect titles or perfect abstracts and in fact all of either may better be classified as otherwise; impaired is the term usually applied to a title when there is one or more defects some where in the chain of convey- ances. Merchantable titles have been defined as such that any reasonably careful investor might be justified in accepting while if every conveyance TITLES. 167 is complete, regular and accurate merchantable fr m the United StateS Govern- title. ment to the present owner, the title is said to be a perfect title of rec- ord. That is, if every deed of transfer from the source of title to the present owner is cor- rectly given of record; if every mortgage or other lien, is regularly released ; if every estate is fully probated in the county where the land is located; if every legal action is completed in regular order, then it may be said every link in the chain of title is complete and it is a per- fect record title. Perfect record titles are rare and the impaired title is more commonly spoken of as a bad title, yet such a term is a vulgarism. In England the source of title is in the crown, while in the United States it is in the Govern- ment, the sovereignty of the people. This was so established by the adoption of the Constitu- tion, the colonies having renounced the sover- eignty of the king in the Declaration of Inde- pendence. It is a fact however, that every owner of a property or holder of a title in the United States, holds it only under the implied liability that it may be controlled by the state wherein it is located, to such an extent that the enjoyment of others in their rights of property will not be disturbed; and also subject to such laws as may direct the mode of conveyance, descent, dower, 168 LAND SURVEY AND LAND TITLES. or any other rights arising from any domestic or commercial relation. The highest estate a person can possesses in a title is called the fee, while other or lesser es- tates are such as estates for life, for The fee. term of years, at will, by sufferance, etc. Such minor estates are called Chattels Real. Estates are also classed as to the time of their enjoyment as estates in possession and estates in expectancy, while the latter are further di- vided into future estates and estates by rever- sion. A future estate preceded by some par- ticular estate is called a Eemainder, and a re- mainder is also vested or contingent according to the existence of some person to enjoy the same immediately at the time of its investment or by the event or person remaining uncertain. An estate for a term of years consists of life estate, leasehold, etc., and usually termi- nates by lapse of time and its own limitation, or by surrender of the rights by the beneficiary to the bene- factor; or if the beneficiary also acquires the fee it is said to merge into the fee or larger estate. When the title to land is transferred forever the fee is said to be passed and vest in the new owner; but when the title is transferred for a shorter or definite period of time this fee may remain in the grantor who will transfer it to TITLES. 169 another who may not receive the benefits of the property until the lesser estate is completed. For example : A., owning a farm, deeds it to his wife, "during her lifetime and at her death the remainder is to pass to his son, William," who at the time of the deed is a lad ten years old. Mrs. A. here receives only an estate for life while the fee passed at the same time to the son. Hence this fee is the important thing to locate and to guard since it controls the place of title, though not always does it control the receipt of profits for a time. An easement is the right of an owner of land to enjoy the use of adjoining land or building and such claim must be founded on an instru- ment of writing. Color of title is acquired by a conveyance purporting to pass the legal title and though the grantor has no title to convey, the posses- sion under such a deed for the statutory limit of years may give a perfect title under the law, and though such possession may be by differ- ent persons, their united terms are sufficient. Such a method is called tacking. After a title has been granted by the United States Government, it is then governed by the laws of the state wherein the land is located. Title in our United States arises from the grant of the United States Government, unless acquired from some state prior to the forma- 170 LAND SURVEY AND LAND TITLES. tion of the Union (see acts 1787), or from a grant of some foreign power prior to the Rev- olution. When granted by the United States a proper entry in regular form entitles the entryman to a patent, and the right of patent once vested is equivalent, as respects the United States Government to a patent issued; yet nothing passes a perfect title but the patent, and no limitation runs against the state or against the United States. The United States Government grants title to lands under various names, and in return for different rewards. (See Chapter VI.) It also grants title under tree claims, desert or swamp land acts, in exchange for state lands, to estab- lish public school funds, to encourage railroads or highways, for personal service, etc., and the root of all titles begins with the Government. A grant of land by statute is the highest form of title known. A legislative grant by a state is an executed contract and a grant by con- gress to a state cannot be recalled at the will of congress any more than the grant from one in- dividual to another. The term patent when applied to real prop- erty, means the title deed by which the United States or a state conveys its estate or lands. A patent is conclusive against the government issuing it, and un- TITLES. 171 like a deed the delivery of a patent is not re- quired to pass title. Patents are not so re- stricted as deeds, yet they must be signed by the executive or his regularly appointed secre- tary, countersigned by the recorder of the gen- eral land office and have the seal of said office duly affixed. The record of a defective patent or the defective record of a correct patent will not pass title. SUGGESTION. Visit the office of your ab- stracter and inspect some of the old Govern- ment land patents he has on file. CHAPTER XVIII. ALIENATION OF TITLE. In a previous chapter of the Feudal system of land tenure in England (see chapter, "Ori- gin of Land Ownership") was introduced but this method of ownership was of the state rather than of the individual, nor did the theory of separate possession from the crown obtain until the reign of Charles II. In the United States, however, it has always been the idea that the great expanse of territory, known as the public domain, was for the benefit of the people, and it has been parceled out to them by The great our government from the earliest or- pubiic ganization. And it has also been the idea to preserve the natural ad- vantages of agriculture, mining, etc., to the ben- efit of the individual rather than to grant con- trol to large corporations. It has also been the intention of our government to allot the sepa- rate portions to individuals in return for some service rendered it or for a recompense of the individual having made some improvement to- ward making use of the district for settlement. First of all, it should be observed how our United States territory has been enlarged by (172) ALIENATION OF TITLE. 173 the acquisition of land, and as stated in the previous chapter such titles are considered original titles. By the Declaration of Independence, our ti- tles, public and private, were severed from the British crown and on the adoption of our Con- stitution were vested in our Government over such territory as we had control. The territory belonging to the United States has been greatly enlarged and in fact more than doubled since the organization of the Na- tion. (See figure VII.) The first and greatest acquisition was of the territory secured by the Louisiana Purchase, in 1803. Thus at one time was our country almost doubled in size, and its resources increased in a larger amount for its people. Another and almost equal addition of territory came when Texas was added to the Union in 1845. By treaty we added the district west of the moun- tains and north of California in 1846. By treaty with Mexico, in 1848, another immense expanse of territory and untold wealth in mines and lumber was received. By purchase and otherwise our territory has been further ex- tended in the acquisition of Florida, the Gads- den Purchase, Alaska and our insular posses- sions, until we can almost say that the sun never sets on the United States. But with all the enlargement of our domain it has been for the benefit of its subjects and 174 LAND SURVEY AND LAND TITLES. they are the ones who have profited thereby. By the several acts of Congress individuals may receive separate parcels of land as their own, to keep, to enjoy and to transfer one to the other in exchange as may best suit them. One of the simplest methods of securing land from our Government is by the Homestead Act, in operation since 1850. When an individual will move to a district to be settled and signify his intention of making it his home homestead. an ^ w ^ a 1 " 66 to make sufficient im- provements for living there and does remain the short space of from eighteen months to three years, the United States will make him a deed to the property, in return for his hav- ing established a new homestead. This is done to encourage the settlement of new territory, and to assist families in procuring homes. If the settler located in a prairie district and would also set out a grove of sufficient size he could have an additional quarter section as a Tree claim. Again if the dry lands were watered by ditches and dikes, so that vegetation would grow and the territory could be made habitable, the land is granted under what is known as the Desert Land Act. Thus by either of the last two methods, acres of semiarid and dry wastes have been reclaimed and are now rich agricultural districts. ALIENATION OF TITLE. 175 As opposed to irrigation is the drainage to get the water off, and immense bodies of land once occupied as swamps, lakes and bogs are now our most prosperous communities. The selection and improvement of our wet lands has been accomplished by means of the Swamp Land Act and many a land owner has profited thereby. To encourage settlements and to partly repay its soldiers for services rendered, our Govern- ment has followed a custom of allowing all sol- diers an order for a quarter section of land. These orders were issued for service in the War of 1812, the Civil War, the Spanish American War, etc., and any soldier so receiving such order could lay claim to land belonging to the United States not previously entered by an- other. These orders were called land warrants and if the soldier did not himself desire to use it to locate a farm he could sell and assign it to any one else and his assignee could then secure all the benefit thereunder. There is considerable of this script yet outstanding unlocated, and some of it is very valuable. To encourage education and assist in the sup- port of educational work the United States Con- gress, in 1787, enacted a law providing that in all territories and states organized subsequent to that date, section number sixteen (16) in 176 LAND SURVEY AND LAND TITLES. each and every township should be reserved for the use of the inhabitants of that township for the benefit of their public schools. In 1848 a second act was passed granting also section thirty-six (36) for the same purpose and under the same condition. On the organization of a territory the authorities, school commissioner or if under county organization, the school trus- tees, would either rent or sell the school lands and invest the proceeds of the sale in interest bearing securities so that the original fund would remain intact and the income would be applied to the purpose for which the act was created. Again, to encourage the improvement of the interior, Congress has from time to time ap- propriated or donated vast areas of land to individuals and corporations who would build canals or railroads and provide means of trans- portation from one part of the coun- Railroad try to the other> The building of the Illinois Central Railroad was thus made possible, this company securing all even numbered sections for a distance of nine miles on each side of its road. And if any of these sections had been previously homesteaded or entered by some one, the company could se- lect lands equivalent for a further distance of six miles. The construction of the Union Pa- cific Railroad across the vast western plain was ALIENATION OF TITLE. 177 made possible by this liberal assistance. Many other roads have been thus assisted. Having so much land given them, but always in alter- nate sections, they, the railroads, could sell the same and derive funds to assist in building the road and at the same time the road would help settlers move into the new country and develop it. Congress has also from time to time made lib- eral grants of land to individuals for some spe- cific service rendered, usually of a military na- ture in defense of outposts ; or for the more of- fensive work, that of exploration and discovery into the unsettled and newer parts of our ter- ritory. Thus will be found many private grants throughout the United States, and these being surveyed and allotted prior to establishing the common rectangular system of survey, remain visible to the present day. They grants 6 were usually surveyed irrespective of any definite direction and their boundary lines extended in any direction of the compass. When the later survey of townships and sections is made these old private sur- veys remain and their lines cut the meridians and parallels at any angle. This is noted in the map of Illinois where the ' ' four o 'clock me- ridian" runs diagonally across the southeast- ern portion of the state marking one side of the Harrison Purchase. 12 178 LAND SURVEY AND LAND TITLES. As indicated above no right is secured by an individual in the public land until it has been surveyed into its legal divisions, and by procla- mation of the President is brought into the market. In early times, however, immigration often advanced beyond such surveys and proc- lamations, and hundreds of settlers had made invasion and established homes in the frontier long before the district was opened to settle- ment, or prior to its survey into sections. In many cases they had made valuable improve- ments and brought the land under cultivation. When then the lands were opened for sale, these improved places would bring such a price that the poor settler who had worked so hard to make the improvements would be unable to pur- chase it in competition and the farms would fall into the hands of speculators. To remedy this evil a pre-emption system was adopted by our Government. A pre-emption claim confers upon the set- tler the first right to purchase a tract he may have improved but such intention to file this claim must be made within a stated time (by Act of May 30, 1862, three months), after the district is regularly opened for settlement. The failure of making such filing has more than once cost a settler his home as well as the mistake of a misdescription in making the claim. One of the first laws on the subject enacted May, ALIENATION OF TITLE. 179 1800, allowed pre-emptions in the country north- west of the Ohio Eiver. These laws have been supplemented from time to time until the Act of March 3, 1853, which superseded all previous laws and now constitutes the general laws of pre-emption. 1 It has also been the rule and in fact one sec- tion of the law so states, that no transfer of a claim is valid prior to completion of the title; that is, no right of sale accrues until the dis- trict is opened for settlement and claim is filed and proved. Congress also passed laws allowing a quarter section to a settler able to bear arms who would move into the unsettled country and establish a home. This was under the Donation Act and particularly applied to Flordia, Oregon terri- tory and the Territory of New Mexico, but it expired in 1855. Thus, to summarize, land is acquired, or ti- tle is alienated by homestead, tree claim, Desert Land Act, Swamp Land Act, land warrant, school land, internal improvement, private claim, pre-emption, donation and purchase. By 1. Prior to 1841 the laws passed did not encourage set- tlement in the public lands before they had been made ready by survey; in fact the legislation had been merely as relief measures by which trespasses were excused. The later acts, however, gave a preference in purchase to those who had made settlements in advance to file claims of first right to buy. 180 LAND SUEVEY AND LAND TITLES. any of the above methods could the individual acquire title from the Government and thus es- tablish an estate of inheritance or private own- ership. 2 SUGGESTION. Visit your abstracter and see in what manner the lands of your county were ac- quired. 2. Individual ownership of claims in territory acquired by the United States, were confirmed in the owners and the source of title to such tracts is in the original gov- ernment of the district. Especially is this condition met in Texas, California, Florida and some parts of Missouri. CHAPTER XIX. CONVEYANCING BY INDIVIDUALS. In the preceding chapters the conveying of title to land between nations and the alienation of land by a nation to the individual has been discussed. The conveyancing between nations was accomplished by treaty, or by Conveyancing legislation; from Nation to indi- and g by ernment vidual b ? enactment of the Gov- individuais. eminent and by the President for the Government. Conveyancing between individuals is by acts voluntary or in- voluntary of the parties themselves, in the first place by purchase, in the second place by oper- ation of law. (See chapter XVII.) As noted heretofore the first record of a con- veyance between individuals is found in the twenty-third chapter of Genesis and was accom- plished with much ceremony. But the purchase price is fully set out, the parties are distinctly named and the property conveyed as fully de- scribed as in many conveyances of more mod- ern times. For we read in the record, "And Abraham weighed to Ephron the silver which he had named in the audience of the children of Heth, four hundred shekels of silver, current (181) 182 LAND SURVEY AND LAND TITLES. money with the merchant. So the field of Eph- ron which was in Machpelah, which was before Mamre, the field and the cave which was there- in, and all the trees which were in the field, that were in all the border thereof round about, were made sure unto Abraham for a possession, in the presence of the children of Heth." In the above transaction there is every item of sale, the offer and the acceptance constituting the contract, the payment of the purchase price and the delivery of the property sold. This was accomplished by witnessing the transaction and in near conformity to the more modern livery of seizen, 1 putting the vendor in visible posses- sion. While possibly nothing passed from one to the other in the nature of a deed, yet it was enacted of them as the deed of each and his- tory has made a record of the transaction. The idea of transferring one's right or title in land, to another is modern in its nature. In 1. Livery of seizen was the actual putting in posses- sion of the vendee by the vendor, and was accomplished with much ceremony under the common law. It was an ancient English custom and is now obsolete. By it the purchaser was said to be seized of the property by actual delivery; in one form the seller took a key, unlocked the door of the house sold, handed the key to the pur- chaser who then went inside and locked the door, all being done before witnesses. In modern times the sale is ac- complished with much less ceremony and the new owner is "seized" of the premises when he has been delivered his deed. CONVEYANCING BY INDIVIDUALS. 183 England it did not prevail until after the cus- tom of feudal tenure, and in America it arose with the adoption of our Constitution. And as well, the quantity of the transfer has been a growth, not as to the extent of acres, but as to the nature of the estate or interest in the prop- erty conveyed. At first only the use of the land for one's lifetime could be transferred while now, in our own country at least, almost any degree of ownership may be transferred. These degrees of interest in real property are classified: (A) With respect to quantity of in- terest. (B) With respect to time of their en- joyment. (C) With respect to the number own- ing. (D) With respect to the manner of their enjoyment. A. The interest one conveys or receives with reference to its entirety amounts (1) To an estate of freehold and (2) To an estate less than Freehold. 1. Freeholds are further divided into (I) Estates of inheritance or in fee, and (II) Es- tates not inheritable or estates for life. I. An estate in fee is regarded as the high- est estate or absolute ownership. This estate is one which can be conveyed in every particu- lar and one which will pass by inheritance. It is commonly mentioned in American titles as a fee simple, but the latter word adds nothing to its value. 184 LAND SUBVEY AND LAND TITLES. II. Estates for life, are estate of enjoyment during the life or lives of some particular per- son or persons or to the time of occurrence or nonoccurrence of some particular event. An estate for life may be granted one person during his lifetime or during the life of another, and his rights will cease on the death of the one mentioned. He may convey any right he possesses or for a certain time, subject of course to the termination of the estate as originally stated. Such an estate carries the benefits and profits of the lands during the term conveyed. Estates for life, conveyed by law, are such as the homestead and dower. The homestead is the interest of the surviv- ing spouse and minor children in the home oc- cupied at the death of the deceased owner (fa- ther or mother), and the right to re- Th e tain the same during the minority of homestead i -i i -i n TP interest. & n y child during the remaining lite of the surviving father (or mother). Dower is the right of a part of the lands of which the husband (or wife) died seized during the remaining life of the survivor, and is in ad- dition to the homestead right. These rights are regulated, however, by the laws of the several states and no exact rule may be given. They are more fully considered in a subsequent chap- ter on estates of inheritance. 2. Estates less than freeholds are such as one created for a definite term of years, and CONVEYANCING BY INDIVIDUALS. 185 more commonly understood as lease holds, and the owner of such an estate is termed a tenant. Such a conveyance confers no ownership of the soil but a mere right of possession or profit therefrom. This estate is terminated by its own limitation, by surrender, by forfeiture in viola- tion of some condition or by the holder acquir- ing the fee, when it is said to merge. This in- terest cannot be reconveyed to another unless by express agreement with the first grantor, and the extent of the estate is controlled by the first agreement. Though usually for one year or a shorter period, often it is extended for a term of years, in cities for ninety-nine years, and there seems to be no legal restriction for making it a longer period. B. With reference to their times of enjoy- ment, conveyances are classified as estates in possession or estate in expectancy. Estates in possession are such as the tenant owner has a right to enjoy at once, while the estate in ex- pectancy is to be possessed and enjoyed at some future time and is known as a remainder or re- version. Thus if A. granted a property to B. for ten years and after that time to C. with the further condition that if C. moved out of the state, before the death of A., it should revert to A. B. has the estate in possession, C. has a remainder in expectancy, while A. has a rever- sion in expectancy. 186 LAND SURVEY AND LAND TITLES. Or if A. conveys to B. for his life time only, B. has the estate in possession while A. has an estate in reversion and in expectancy. C. With reference to the number owning a property, estates are in (1) several ty, (2) joint tenancy, or (3) tenants in common. 1. In the first place all the ownership is in one individual. 2. In joint tenancy, it is the theory that where a property is owned by two or more and one owner dies his surviving owner, or tenant in common acquires his share to the exclusion of the heirs of the decedent. That is, all own- ership passes to the surviving partner. But the fact that a deed is made to the husband and wife jointly as grantees will not give the sur- vivor at the death of either the whole title, un- less the deed is drawn to convey it to them as joint tenants; or except the laws of inheritance of the state, wherein the land is located, would transfer the title to the survivor by inheritance. The mere fact of it reading to the husband and wife together will not guarantee the whole title to the survivor at all. 3. Tenants in common possess an estate owned by several, each with an individual in- terest, but not separated or set apart to each of them. On the death of an ancestor the heirs are said to receive their estate of inheritance as tenants in common. CONVEYANCING BY INDIVIDUALS. 187 D. With respect to their manner of enjoy- ment they are either absolute or on condition. An absolute estate, as the term implies, is a conveyance without restriction while an estate on conditions is one which may be defeated. That is, where A. conveys to B. a lot condi- tioned that no building be erected within thirty feet of the street line, if the condition were violated it might work a forfeiture of the title. The foregoing brief review of the various es- tates to be conveyed by one indi- Getwhat vidual to another will serve to intro- you buy. duce the reader to the many degrees of ownership to be enjoyed, and it is well for every purchaser to see that he gets the estate he bargained for; of times a purchaser has bought a fee simple title and had a life estate only conveyed to him. Too great care cannot be exercised, because many times the es- tate conveyed is restricted when not intended so to be. Conveyances by individuals are effected by their own voluntary acts during life, by means of instruments of writing called deeds. There are commonly three varieties of deeds, war- ranty, special warranty and quit claim deeds, and these will be discussed at greater length in the next chapter. A will is also the convey- ance of an individual to become operative at his 188 LAND SURVEY AND LAND TITLES. death, but it is the deed of a live man and not of the dead as is so commonly understood. A person can convey almost any degree of an estate and great care should be exercised to scrutinize all conveyances to see that each conveys just what is desired and no more. There are other minor estates not discussed above, and if the student desires he may read some more exhaustive treatise on the subject, but the ones herein mentioned are the ones com- monly met with in American titles. The above are also the voluntary conveyances by parties ; the involuntary will be explained in the suc- ceeding chapter on judicial sales. In all voluntary conveyances there are cer- tain necessary steps to be considered, but here they are only suggested; the offer, the accept- ance, the transfer, the payment of the consid- eration and the receipt of the evidence of trans- fer, or the deed. SUGGESTION. Visit the office of your abstract- er and ask to see a deed that does not convey a fee, or one that retains a life estate. CHAPTER XX. DEEDS. 1 A deed of conveyance as commonly under- stood is that instrument of writing which, shows by its statements that the ownership of a prop- erty has been transferred from one party to another. The name deed is an inheritance from usage, because it is said to be the witness to the act or deed of the parties. There are several requisite or operative parts to every deed, chief of which are these: 1. The grantor or grantors and character in which he or they act. 2. The grantee or grantees and character in which he or they act. 3. The nature or kind of a deed. 4. The date of its execution. 5. The date of its delivery. 6. The date of filing for record. 7. The amount of the consideration or induce- ment. 8. The operative words of grant, inheritance or limitation. 1. Forms of deeds are shown in the back part of this volume. (189) 190 LAND SURVEY AND LAND TITLES. 9. The legal description of the property con- veyed. 10. The special recitals following description, if any. 11. The habendum clause. 12. The signatures of the parties grantors. 13. The certificate of the acknowledging offi- cer. 14. The affixing of the revenue stamp, if re- quired. 1. A deed must have parties both grantor and grantee and each of them need to be scru- tinized carefully. The legal capacity of the grantor is the most important factor in every deed. The grantor, termed party of the first part, is he who conveys the property, and he must be free of any legal disability at time of executing the instrument, or the conveyance is void. The grantor is also termed the vendor or the seller, and if he is married, in most states, the wife (or husband), must join in the convey- ance to complete it. It is not necessary to the validity of the conveyance that the post office address of the grantor be shown, but when given it ofttimes helps to identify him as a for- mer grantee where there is a variation in the spelling of the name. It should also be the care to give the name the same as the last grantee where it is the same party. This will avoid con- fusion as noted at numbers three and four of chapter XIV. DEEDS. 191 2. What is said of the grantor, is applicable in most cases to the grantee, party Special of the second part, the vendee or the note S in a purchaser. A deed "to the heirs deed. of " a living person conveys no title. A deed to a person dead prior to its execution is void. There must be a definite gran- tee; but natural disability such as lunacy, in- fancy or coverture will be no bar to the convey- ance to them as grantee, though none such could be grantor until the removal of the disability. A deed executed in blank and the name of the grantee afterwards written in, will convey no title, and the acceptance of such a deed know- ingly is dangerous. 1 3. The nature of the deed should be stated in order to determine the extent of the estate sought to be conveyed. A warranty deed un- restricted conveys the entire estate and will estop the grantor from another conveyance should he not possess the title to the property conveyed at the time of its execution, but later acquire it. In other words it is said to convey a future as well as present interest. There are 1. A deed was made by Hutchings to Saunders. The name of the grantee was inserted after the deed was exe- cuted and acknowledged by the grantor, and the court held that the deed was void. There must be in every valid deed a grantor, a grantee and a thing granted and in this instance the essential of a grantee was lacking. (Chase v. Palmer, 29 111. 306.) 192 LAND SUEVEY AND LAND TITLES. three common forms of deeds, the general war- ranty, the special warranty and the quit claim. The warranty deed as first mentioned above is a guaranty by the grantor to the grantee for any loss he may sustain on account of defect in title, and is good so long as the guarantor is solvent. But it is a very bad practice to re- ly entirely on a warranty deed because in fact it cannot make a title good; and the grantor may die or become insolvent the next day after executing the deed and his warranty become worthless. And, too, if the title of the grantee is attacked he must defend it and unless he loses the case, he cannot turn to his grantor for payment. A special warranty deed is one in which the grantor warrants against his own acts only and in no wise agrees to make good any defect in title prior to his own ownership. A quit claim deed is a mere release of any in- terest either real or apparent and does not ob- ligate the grantor in the least. If he has no in- terest none will be conveyed and should he af- ter acquire an interest it would not inure to the benefit of his grantee as in the case of a war- ranty deed. It conveys a present interest only. In addition to the three forms of deeds men- tioned above there is also deed of trust, trus- tee's deed, trust deed, deed of partition, execu- tor's deed, administrator's deed, conservator's DEEDS. 193 deed, guardian's deed, master's or commission- er's deed, sheriff's deed, etc. A deed of trust is a conveyance in fact from one person to another for the benefit of a third party. That is A. deeds to B. to receive the in- come and pay it to C. until C. becomes of age or until the happening of some other event. The deed B. then executes is a trustee's deed. A trust deed is in fact a form of mortgage and the title is not put beyond recall of the first par- ty as in a deed of trust, unless he defaults in the payment of the debt secured. A deed of partition partakes of the nature of a contract where several parties join in one instrument agreeing to a division of a property setting off to each some particular part. An executor 's deed is the deed of one who has been named by a will of a deceased person to convey the property of the testator. It is a con- veyance by direction of the testator, made in his lifetime; such an authority made to be ex- ecuted during the life of the party making it, is called a power of attorney. An administrator's deed is the deed of the one appointed by the probate court to settle the affairs of one who died leaving no will. It is necessary for him to make such a deed for all or part of the land of the decedent if part or all of the property must be sold to pay the debts or claims against the estate. 13 194 LAND SURVEY AND LAND TITLES. A conservator's deed is the deed of one ap- pointed by the court to care for the property of one incompetent to care for his own property; and it may happen that the property must be sold to realize money to keep the ward. A guardian's deed is similar in its nature except that the disability is one of age only, the ward being a minor and under a legal and not a phy- sical disability. A master's or a commissioner's deed is a deed of an officer of the court who makes the conveyance of the land when in the nature of the cause before the court for consideration, it becomes necessary to sell the property, as in a case of partition, or foreclosure, both discussed in later chapters. A sheriff's deed partakes of the nature of the last two mentioned deeds and it is merely the fact that the sheriff executed the orders of the court in place of the master in chancery or the commissioner. In all of the above, except the warranty deed, there is no guaranty whatever against loss and no interest whatever is conveyed, except what- ever interest the grantor had. A court deed as it is often called, the deed of an administra- tor, executor, master or sheriff makes no warranty at all and they do not pretend to convey any greater interest or better title DEEDS. 195 NO than had the party for whom they in^court conve y And it frequently happens deed. that in the proceeding to give the au- thority for conveyance, there is some irregularity in the case so that the court does not have a proper jurisdiction, and in fact the court deed may give a weaker title than existed before. The theory that a deed by the court makes a title good, is erroneous. Nothing but an abstract of the title shows its true condition and this abstract may point out the defect of the court proceedings, or the error of the lawyer in the case. 4. The date of the execution of a deed is of- ten of material importance, especially if it be a quit claim deed, and the date of the acknowl- edgement is in fact the real date of execution, because the date it is drawn is the one usually inserted while it may not be executed until later. 5. The date of delivery is important, but not so important as the fact of delivery. A deed must be delivered to pass title, either delivered to the grantee or to some third party for de- livery on the happening of some event. 2 2. James P. Williams bought of one Hamby three acres of land, and took a conveyance to himself and sister, Mary Williams. In November of the same year he bought of the same vendor nine acres adjacent, and the deed to the three acres, never having been recorded, was sur- 196 LAND SURVEY AND LAND TITLES. 6. The date of filing is important especially when priority of filing governs effect of convey- ance. If A. sells a property and delivered the deed to B. who neglects to file his deed for rec- ord, C. may secure a judgment against A. and levy a lien against the property now, in fact, belonging to B. ; then B. would have to protect the property because by not recording the trans- fer he had not advertised to the public the no- tice of his ownership. 7. The consideration is important, because to support a contract there must be some mov- ing equivalent. The amount of consideration need not be large or valuable, often one dollar, and frequently love and affection, between par- ent and child. The exact consideration need not be mentioned, exchange of property being suffi- cient, etc. 8. The words of grant, bargain and sale are to be noted carefully, especially where the stat- ute requires certain phrases. rendered and destroyed, and Hamby executed a deed for the twelve acres to Robert Williams, a brother to James P. and Mary. The court held, in a suit which was brought against James P. Williams by his creditors, that the deed to the three acres was wholly inoperative so far as Robert was concerned, that William and Mary owned the land, and that a title to real estate cannot be divested or reconveyed by the surrender and cancellation of a deed conveying it. (Cunningham v. Williams, 42 Ark. 170.) DEEDS. 197 9. The description is to be noted most care- fully, since if there is one word CsTG m the wrong it might make the whole in description, error. The naming of a wrong direc- tion, the giving of a wrong number of section or lot has often been the cause of much trouble and expense. It is not always a safe rule to follow the former deed in this be- cause it was no doubt in error and the same error would run through a number of deeds. Make your description conform to the abstract. Nor is it necessary to name the quantity con- veyed, though the approximate amount is often given as so many acres, more or less. But "ten acres more or less" off the north end of the section conveys nothing. 10. The special recitals are to be noted care- fully because often some restrictive clause is inserted that controls the conveyance ; or if the party conveying desires to relieve himself of any responsibility of some tax or lien, this must be so stated, or he will be bound by the gen- eral terms of his conveyance. 11. The habendum clause is that clause for- merly employed but now obselete, that was used to qualify the estate conveyed, but the statutory form of deeds as used in the various states have in most instances done away with the once familiar clause, ' * to have and to hold to the said second party, his heirs and assigns," etc. It is now no longer needed. 198 LAND SURVEY AND LAND TITLES. 12. The signatures are important in two re- spects. First that they are affixed, though it is not necessary that they be written in any exact spot on the instrument. When the signature is illegible or the party cannot write at all, but signs by mark, thus: his John X Doe mark the signature should be witnessed. In some states it requires two witnesses besides the no- tary, whether the signing is by mark or not. A signature in pencil while not always so safe is perfectly legal, and signatures should always be written as given in the granting clause of the instrument. 13. The certificate of the acknowledging offi- cer should be filled out carefully and completely, noting the names of the parties as written, and also stating the relation if any, as husband and wife; or if unmarried it should be given as bachelor, spinster, widow or widower, terms of exactness and not merely single or unmarried as is so often done. The terms should also al- ways appear in the granting clause at the be- ginning of the instrument as descriptive of the parties of the first part. The notary, justice or whoever takes the ac- knowledgment, should be very careful to sign his own name and affix his seal of office, if he DEEDS. 199 uses one. Ofttimes such is omitted and the con- veyance is defective. 14. The affixing of revenue stamps when re- quired by law should be observed but the omis- sion does not invalidate the conveyance. (See Bunker v. Green, 48 HI. 243). As of all legal instruments of conveyance, so of deeds, they are particular in language, form, signature and attestation, and a purchaser should not accept an instrument drawn by an incompetent or inexperienced scrivener. A few cents saved at time of purchase has often cost hundreds of dollars in court decrees later, to correct the defective conveyance. 3 Errors caused in deeds by incompetent con- veyancers are disclosed daily by our public rec- ords, among which these may be noted. 1. Grantor's name omitted or so spelled that he or she cannot be identified as the last grantee. 3. A purchaser asked a lawyer the price of drafting a deed to some land he was buying from some heirs. The lawyer told him one dollar. The farmer said he could get a justice to do it for twenty-five cents and he did. Some five years later he sold out and then discovered the "squire" had got the description all wrong, and he must get a new deed. Many of his grantors had died leaving minor children and some had gone to foreign parts. A suit in court was his only recourse. Seventy-five cents saved cost two hundred dollars and it happened in Cen- tral Illinois. A squire is legalized to draw deeds but his election does not qualify him so to do. 200 LAND SURVEY AND LAND TITLES. 2. Consideration entirely omitted. 3. Signatures omitted or not written to har- monize with the names given. 4. Name of grantee omitted altogether. 5. In case of a corporation, the name wrong- ly given and the signature in error. 6. Seals omitted; personal, corporate or official. 7. Acknowledgment imperfect in form. 8. Indefinite or erroneous description. 9. Acknowledged before officer not allowed to take attestations. 10. Modifying or restrictive clauses wrongly used. It so often occurs that these defective deeds are recorded before the errors are discovered. Then the only way to correct the wrong is to se- cure a proper conveyance stating also it is made to correct certain errors in a former ex- ecuted deed, giving volume and page where wrong deed is recorded, and then record the cor- rect instrument. If, however, the error is that of the recorder in copying, the defect may be cured by re-recording the original instrument, stating it is re-recorded. If, however, a new deed cannot be had, on account of death of former grantor, etc., or the original, if correct, cannot be found, the only course is to file a suit in chancery to cure the defects. This expensive proceeding may often be avoided by care at the beginning. DEEDS. 201 A TITLE DEED IN POETRY. A deed for the conveyance of a piece of land and one of the greatest legal curiosities in the world, was drawn up in 1881 by J. Henry Shaw, a lawyer at Beardstown, Illinois. The curio complies with every requirement of law, and has more than once been declared by the court of that state to be entirely valid. I, J. Henry Shaw, the grantor herein, Who live at Beardstown the county within, For seven hundred dollars to me paid today By Charles E. Wyman, do sell and convey Lot two (2) in block forty (40), said county and town, Where Illinois River flows placidly down, And warrant the title forever and aye, Waiving homestead and mansion to both a goodby, And pledging this deed is valid in law. I add here my signature, J. Henry Shaw. (Seal) Dated July 25, 1881. I, Sylvester Emmons, who live at Beardstown, A notary public of fame and renown, Of the county of Cass in Illinois state, Do certify here that on the same date One J. Henry Shaw to me did make known That the above deed and name were his own, And he stated he sealed and delivered the same Voluntarily, freely, and never would claim His homestead therein; but, left all alone, Turned his face to the street and his back to his home. S. EMMONS, N. P. Dated August 1, 1881. (Seal). SUGGESTION. Visit the office of your abstract- er and get him to show you some defective deeds. CHAPTER XXI. MORTGAGES AND RELEASES. A mortgage in modern times is a conveyance of an estate for the security of a debt, and the conveyance is to become void on payment of the amount due. The development of the use of the mortgage is quite interesting. In early English times the creditor, or as we now call him, the mortgagee, took actual possession of the premises pledged and collected the income himself. When the returns had satisfied the debt, he returned the property to its former owner, and this was known as a living pledge. Later it was so arranged that on any breach of the condition of the pledge, the security be- came forfeited, lost or dead to the pledger and this was known as the dead pledge. In the lan- guage of that time and derived from the Welch, the word was developed 1 l mort-gage. " This last form of pledge worked a great hard- ship on the borrower, for if the debt was not paid by the time of the due date, the property was lost to the mortgagor absolutely, and he could not recover even though he later made a tender of the amount due. The day named for (202) MORTGAGES AND RELEASES. 203 the payment of the debt was called the "law day" and if payment was not made according to the exact terms of the condition, the mort- gagee became the absolute owner of the prop- erty. In later years equity interposed to explain that it was unreasonable that the mortgagee should retain the full value of the property when it was merely pledged to him to secure a much smaller debt; that a breach of the covenant of the pledge* was subject to a penalty, and that in justice all the creditor could be entitled to was his debt, interest and costs. And the The rule was established that though the SaySver condition of the pledge was not his property, strictly adhered to, whereby the property became forfeited, yet if the mortgagor tendered the amount of the debt within a reasonable time, he should be entitled to a return of his property. The privilege to retrieve his loss is known as the right of equity of redemption, and the debt- or was wont to draw out the time so that he im- posed on the creditor, until the court would have to take notice of it and enter a decree that payment must be made within a short day named, or the equity of redemption would be barred and the mortgage would be foreclosed. The procedure of going to court to establish time of redemption was irritating to a creditor, 204 LAND SUBVEY AND LAND TITLES. especially when the debt was past due and per- haps the security was deteriorating by misuse. This led to the use of a special form of mort- gage known as the "cut throat mortgage" 1 whereby the mortgagee, on default of payment, and by merely advertising the premises for a few days, could make sale of the land mortgaged and pay his debt out of the proceeds, he himself making a deed to the purchaser. This was somewhat like the "dead pledge" above men- tioned except that the property must be sold at auction and any overplus was to be paid to the former owner (or mortgagor). In most of the states of the United States this form has been abolished by law and a statutory form pre- scribed. This statutory form is usually very brief and the words of conveyance, mortgage and warrant, govern the estate conveyed. It is a theory in law that once a mortgage, always a mortgage even though it is in the form of a deed, and when it is shown the conveyance is in fact a pledge only, the courts will enforce a re- conveyance of the property on payment of the debt secured. The form of mortgages now pre- scribed in the several states is different from L This form of mortgage was abolished in Illinois in 1879 and foreclosures are now had in the chancery court. The mortgagor has fifteen months to redeem his property after the sale and it is not absolutely lost to him on first forfeiture of payment of interest as under the old law. MORTGAGES AND RELEASES. 205 the other almost in every instance so that no general form can be referred to. A mortgage in its earliest form was effected by the execution of two separate and distinct instruments at the same time; the one was an absolute conveyance of the land mortgaged while the other, called the deed of defeasance, was a sort of agreement or contract providing that if the debt was paid as agreed, a reconvey- ance of the premises mortgaged would be made. In time the two deeds were merged into one instrument having a paragraph reciting the agreement of defeasance and this combined con- veyance and agreement of release on payment of the debt, in its various forms, is the mort- gage used at present. There is yet used a note or bond executed with the mortgage, reciting the amount of the debt, the time and terms of payment, place of pay- ment, etc., and the mortgage is considered as given to support or secure the payment of the note. Hence like in the earlier times two in- struments are executed, one is given in support of the other. The fact that an owner has executed a mort- gage or has mortgaged his land, does not de- prive him of its use and ownership. He can use, rent or sell his property just as freely as before but in case of a sale he will receive the price less the amount of the mortgage debt, and 206 LAND SURVEY AND LAND TITLES. the new owner will then be liable for its pay- ment. And in case the new owner makes de- fault in payment of the interest when ^ ue or ^ ^ e P r i nc ip a l as originally agreed, the mortgage may be fore- closed and the property sold. The interest or estate one has in a mortgaged property above the amount of the indebtedness is called the equity and is the difference between the amount of the mortgage and the market value of the property ; this equity may be bought or sold the same as any other property, and as the mort- gage is reduced the equity is increased. Where a mortgagee also acquired the title to the premises or buys the equity therein, it is called a merger and if he yet owns the mort- gage it will operate as a release. And where one makes a mortgage to a prop- erty to which he has not yet acquired title, his title when he does receive it, becomes at once burdened with the lien of his mortgage and must be treated with him having had the title when the mortgage was executed. His warrant in the mortgage as in a warranty deed will estop him from any denial of the indebtedness. A trust deed is a form of mortgage used in a few states, and is a conveyance to a third per- son in place of to the creditor (mortgagee) di- rect. The conveyance is like the mortgage, an incident to the debt and executed merely to- MORTGAGES AND RELEASES. 207 pledge or secure its payment. The trustee named in the trust deed may know nothing of the transaction until if the mortgagor does not pay his debt the owner of the paper will apply to the trustee to have him cause the property to be sold or if the debt is paid the mortgagor receives from him a release. 2 A mortgage to be valid should correctly de- scribe the premises mortgaged, as well as iden- tify the indebtedness secured. As between two mortgages, the first one filed for record is the prior, or senior lien, unless otherwise specific- ally stated in the instrument itself. When one sells a tract of land and does not receive all of the purchase price for it, he is said to have an equitable lien for the balance. This amount of balance if stated in the deed and if it is also stated that a lien is retained to secure payment of same, is called a vendor's lien. If however in place of reserving the lien in the deed the vendor takes a mortgage back from 2. In some states, as in Missouri, the trustee acts only in case of a foreclosure, the release being accomplished by the recorder noting on the margin of the record of the mortgage that the original notes and mortgage were exhibited to him marked canceled. Where some of the notes have been lost or where the owner forgets or neglects to exhibit the paid instruments to the recorder for the above notation, confusion is liable to occur; and where a trustee executes a release he should satisfy himself that all notes have been paid. As a rule of caution, all canceled notes should be preserved. 208 LAND SURVEY AND LAND TITLES. the purchaser for the amount due and it is stated that the mortgage is for part of the pur- chase price, it is known as a purchase mort- gage. Purchase mortgages are considered high- er securities than other mortgages and they are each of them free from any contingent claim of dower or homestead interest whether the wife of the mortgagor joined in their execu- tion or not. The advantage of taking a pur- chase mortgage in place of reserving the lien in the deed, is that it is perhaps more easily sold and negotiated if desired. Mortgages are valuable and may be trans- ferred the same as any other property. If the security is a mortgage direct, the transfer is accomplished by the mortgagee, who is also the seller, executing an assignment; this is an in- strument much like a deed, reciting the parties, consideration and describing the security trans- ferred by giving its parties, date, amount, vol- ume and page where recorded, etc. This assign- ment is then acknowledged and by it the new owner called the assignee after having his deed of assignment recorded may make a proper re- lease when the debt is paid. In a trust deed the securities may be transferred without indorse- ment or by indorsement of the note only, and when all the notes are paid, the then owner of the property should exhibit the paid notes to the trustee and secure a release. MORTGAGES AND RELEASES. 209 And whenever a release is obtained it should be filed for record at once, first to taereiease. sllow P avinen t of the mortgage and second that it may be done before the release is lost. Care should be exercised to have a mortgage properly released of record either by securing and filing a properly exe- cuted release deed or by having the mortgagee, or other proper person, release the lien by a re- lease written on the margin of the record. Oft- times the notes are stamped paid, the mortgage is marked cancelled and because the immediate parties know the debt is satisfied nothing more is done ; but in after years, when others, stran- gers to this transaction, are searching the rec- ords, if the release cannot be found, confusion arises, time is lost and frequently much expense is incurred. Of course if a mortgage is not paid and it be- comes necessary to have the court sell the prop- erty, this fact of sale, whereby the mortgagor's interest is transferred, and out of the proceeds the debt is satisfied, is sufficient evidence of a cancellation of the encumbrance, and acts as a release of the mortgage. The power of sale under a mortgage or trust deed must be strictly pursued and the utmost fairness observed in its execution. ^ P urcn aser at a sale under a fore- does not closure of a mortgage or a trust utle e good. deed, receives only the title formerly 14 210 LAND SURVEY AND LAND TITLES. held by the mortgagor, burdened with all its defects and without a warranty. A deed from an officer of the court conveys no more than such interest as the original mortgagor possessed and the court makes no warranty, it merely acting as a trustee in accomplish- ing the transfer from the mortgagor to the purchaser. Where no release of a mortgage is shown of record, the law will presume the satisfaction of the mortgage and the payment of the debt, if the mortgagee, or holder of the paper, has not attempted to assert the right of collection, or brought suit for foreclosure during the stat- utory period of limitation, of the state where the property is located, next following the ma- turity of the debt. This period of limitation is usually twenty years but varies in many states, and the statute of each state will govern as to whether the time is ten years, twenty years or some other period. A mortgage is best released by the record of a regularly executed release by the mortgagee or trustee. Yet the statutes declare no action to foreclose may be had after the period of limitation has been completed; but so long as interest or any part of the principal is paid, or if there are interested parties under legal disa- bility, this limitation period does not commence to run. MORTGAGES AND RELEASES. 211 SUGGESTION. Examine your abstract and see if any mortgage on the property was ever fore- closed; also, determine if all mortgages are properly released. A corner common to four townships. View looking west. CHAPTER XXII. ESTATES INTESTATE. In a preceding chapter it was remarked that there were but two methods of transferring ti- tles, viz., by voluntary act of the individual and by operation of law. This first method is ex- plained by the chapters on the deed, mortgage, will, etc., wherein the transfer is voluntary from one to another. Transfers by operation of law are such as are involuntary on the part of the original owner, but from some cause a condi- tion arises whereby the ownership is changed from one to another. The simplest example is in fact a transfer by descent, or a distribution of property according to the law of succession after death. Title ac- quired herein is in no part by purchase but by descent only, and the law when referring to the transfer of land by inheritance is called the law of descent, but when relating to personal prop- erty it is the law of distribution. On the death of any one, especially if the person died possessed of real estate, the estate should be probated or administered upon in the proper court to determine these important facts. (212) ESTATES INTESTATE. 213 1. To determine the death of the ancestor. 2. To establish whether or not the deceased left a will. 3. To establish by proper court the heirship. 4. To provide for relieving the estate of all debts and claims against it. 5. To collect all assets of the decedent and to properly distribute them among the heirs entitled. The right to take property by descent is not absolute, but depends entirely on the inheritance ^ aw or statute of the several states. Some provide that a person may in- herit both personal and real property, and the law in force at the time of the death of the in- testate governs the distribution to the conclu- sion of law enacted prior or subsequent thereto. A person's home or domicile is where he has his permanent home and principal establish- ment, to which when he is absent, it is his inten- tion to return. Every person is deemed to have a home somewhere and, by the American rule, one's original domicile continues until a new one is established. In the inheritance of prop- erty, the law of the state wherein the land is situate governs its descent, while the distribu- tion of the personal property is controlled by the law of the place or home of the intestate at the time of his death. These may or may not be of the same state. 214 LAND SUBVEY AND LAND TITLES. The laws of descent as they prevailed under the common law of England, have been changed and amended by the states, so that no fixed rule can be given, but the statute of each state must be consulted to determine the exact laws of the place, and order of descent in force there. In general the children, if any, of an intestate are considered nearest of kin and take equal shares in the property ; if a child has died leav- ing children the heirs of the deceased child in- herit his part, technically speaking the rule of descent is per stirpes and not per capita. Adopted children will inherit from their adopted parents, where the statute Adopted go provides, but they also inherit children / and others, trom their natural parents ; but adopted parents cannot inherit from their adopted children. Posthumous children inherit the same as though born during the life time of the decedent. Illegitimate children at common law had no inheritance yet in nearly all of the states the statutes provide they are per- mitted to inherit from the mother only, but a subsequent marriage of the parents or an ac- knowledgment of them by their father, will re- move such bar of inheritance. Half-bloods inherit in equal shares from their common parent only. Living children omitted from a will usually take as an equal heir where the omission is shown to be unintentional, and ESTATES INTESTATE. 215 children born after the making of a will, either before or after the testator's death, take as heirs. In some states, however, they may be ex- cluded where the will itself so provides. At common law the surviving spouse did not inherit from the other but this is changed by state enactment, and now in most of the states they inherit in the absence of children or next of kin. In some states, however, they take with the children ; they also have an interest for life in the remainder of the real estate, which inter- est is known as a dower interest. The local statute must be consulted to determine what is the law of the place. It was the rule at common law that an estate could not ascend, but this has been changed in nearly all the states, and a father or mother, or both inherit where there are no lineal descend- ants of the intestate and often even where there are. Brothers and sisters, or the heirs of de- ceased brothers and sisters are often given pre- cedence over parents as heirs. Brothers and sisters on the half-blood often share with those of full blood, but some times they are excluded if the property does not come from a common ancestor. In the absence of descendants, parents, a sur- viving spouse, brother or sister, the statutes usually provide for inheritance by the next of kin, and they also state who are so considered. 216 LAND SURVEY AND LAND TITLES. Next of kin are those who are most nearly re- lated by blood or by consanguinity. Those re- lated by marriage are in relation by affinity, and yet others may be related by adoption. While the law presumes every one to have heirs, if none can be discovered the property escheats to the state. Upon the death of an intestate his real prop- erty at once descends and the title becomes im- mediately vested in his heirs, by operation of law, without any order from a court. His prop- erty is liable, however, for the payment of any debts of the decedent. 1 The personal property is said to vest in trust in the personal repre- sentatives, and until the administrator quali- fies, it is said to remain in abeyance. As to whom should take charge of an estate, receive moneys on hand and due, pay an( * distribute an remain- th estate. der among the heirs entitled, the statute of the state will provide. Usually the surviving spouse has first right, next a child, or some one next of kin. Those having a prior right may nominate some one 1. Real estate is never legally relieved of possible debts of an ancestor, nor is the heirship properly deter- mined until some proceeding in probate is had; purchasers of land or real estate securities accepting a title in which occurs an unsettled estate must be governed, at their peril, by the circumstances either of time or condition. ESTATES INTESTATE. 217 for the court to appoint, and when the court makes the appointment, the person accepting the trust is known as an administrator and dis- tinguished from executor who is named by a will, to make settlement of the estate. If an administrator dies or resigns before the estate is fully settled another appointed by the court to complete the settlement is called an adminis- trator de bonis non. If a will makes no ap- pointment of executor, the one appointed by the court to execute the will is known as the admin- istrator with the will annexed. The settlement of an estate is known as the administration of the estate and consists first in the assembling of all personal property by the person in charge as above named; second, in the payment of all debts of the decedent; third, in the distribution of any personal prop- erty left after the payment of the debts. Or if there was a will, the executor will see to the distribution of any particular legacy to the proper person. Heirs are under no legal liability to pay the debts of their ancestor from whom they have inherited real estate unless the per- sonal estate of the deceased is insuf- ficient to liquidate all claims. Credi- tors must collect first from the personal repre- sentative, administrator or executor, who will pay out of the proceeds of the personal prop- 218 LAND SUEVEY AND LAND TITLES. erty until this source is exhausted. If this fund is not sufficient to satisfy all claims against the estate, it will be necessary to secure funds from a sale of the real estate or of some part of it. An heir is not bound by any agreement of his ancestor beyond the value of his distributive share of the estate, but if the personal property is insufficient to pay the debts and claims, as well as any special bequest where the decedent left a will, the heirs must allow a sale of a suffi- cient part of the real estate to satisfy all such amounts. In the event of such sale being made the administrator or executor will make the deed of transfer to the property sold, by virtue of an order from the probate or surrogate court, first obtained. And when a full settlement of the estate has been made the work of the ad- ministrator is finished and he is discharged by the court from further obligation. What lands remain may be divided among the heirs, either mutually if an agreement can be made, or the division will be conducted by the court. This division however is not con- ducted by the same court wherein the estate was settled, but by what is usually termed the chancery court. Such division by a court is al- ways necessary where there are any minor heirs, because they are incompetent to join in a voluntary agreement of partition. Whenever there is a surviving spouse and there is no will ESTATES INTESTATE. 219 making provision for the benefit of such sur- vivor, partition proceedings are necessary to set apart his or her share, unless the heirs are all of age and a private agreement can be reached. When the suit for partition is had, the court will appoint a commission of disinterested men, usually three, to inspect the lands to partition ^ e divided and if possible they shall separate the estate into as many shares as there are parties interested; they shall then assign one of such lots to each of the several heirs entitled, whether to minor or not, and the lot or part so assigned becomes his own separate tract. If the whole property, or any part of it, can- not be divided among the parties entitled, the three commissioners so appointed appraise the value of the real estate and so report to the court and a decree of sale is entered and the master in chancery of the court makes sale of the land. The money received therefrom, after paying costs, is divided by him among the par- ties entitled according to their respective shares. The statute of each state declares what the share shall be. ( See your statute for law of descent.) This process of dividing an estate by legal process must be done strictly in accord- ance with the law and care must be exercised in the course of the same throughout. Parti- 220 LAND SURVEY AND LAND TITLES. tion proceedings may be had wherever two or more persons own property together, regard- less of how they acquired title to the land. When a married person dies, the surviving spouse at once becomes seized of an interest in all the real estate possessed by the decedent at the time of his or her death and in any owned after marriage of parties and conveyed by the deceased before death, if the said survivor had not joined in a deed of conveyance prior to the death of the other, or had joined in a defective conveyance, which was not sufficient to release dower. This interest is called a dower interest and in most states is the rent, use, and profit of one-third of all such real estate during the remaining life of the said survivor. This is in fact a right for an indeterminable period and can be sold or bartered ; yet it ceases immediately on the death of the survivor. Any land subject to a dower interest is at once relieved on the death of the person to whom it was due and the amount of dower in each state is regulated by the state statute. A dower interest, however, may never vest by reason of a valid antenuptial or post- nuptial contract. Besides the interest above mentioned there is also another interest but of a definite amount, usually of one thousand dollars, called a home- stead. It is the right of the surviving spouse ESTATES INTESTATE. 221 to retain during life, or to minor children to hold during minority, the home place, usually the house and some small tract of land, and if the estate was small it may embrace the whole of it and leave nothing to be sold to satisfy debts, or to be divided among the heirs until the death of both husband and wife. This is also regulated by statute of the state wherein the land is situated. When no provision is made by will the court may assign the dower interest to the party en- titled and any estate sold is burdened with the same unless it is voluntarily released in writing, or separately assigned by court. A legal dissolution of the marriage contract is called a divorce and if granted for the fault of the surviving spouse it will dissolve any claim of dower in the estate. When a divorce is granted if it is stipulated that either pay the other a sum of mone 7 such amount is called ali- mony, whether it is to be paid at one time or in several equal amounts, at regular in- tervals ; and alimony is a lien on the real estate of the party who is to pay it. Dower, homestead and alimony, all cease on the death of the party in whose interest they existed and any real estate affected by either of them is at once relieved of the same. Home- 222 LAND SURVEY AND LAND TITLES. stead rights of minor orphans cease on their becoming of legal age. SUGGESTION. Examine your abstract and see if your land was part of some estate that had been partitioned. CHAPTER XXIII. WILLS ESTATES TESTATE. A will is a conveyance of property by an in- dividual, the transfer to take effect or title to pass, at the death of the grantor, now termed testator. One who dies leaving a will is said to have died testate, as opposed to one who left no will and who is said to have died intestate. As to who may make wills, the rule of re- strictions is more lenient than it is Who can j n regard to who may make con- wiii. tracts. In the making of a will, it is considered there is not the con- tention usual in coming to an agreement with another as in contracts, and though no fixed rule may be laid down the law is not so strict. However one must be able to understand what he is doing and not be working under some de- lusion. Nor must a will be executed under in- fluence, or it is not the will of the testator and no court cognizant of this fact will sustain it. A will in fact being the offer of the testator, may be by him revoked at any time before his death, or he may destroy it altogether; but im- mediately on the occurrence of the death of the testator, the will becomes absolute and title (223) 224 LAND SURVEY AND LAND TITLES. passes by the terms of the instrument and not by inheritance. A party acquiring property through a will is called a devisee or legatee and takes the title by purchase. When a testator dies leaving two or more wills the latest dated instrument is the one con- sidered as the real will at least insofar as it may affect the disposal of property in a former will. Usually, however, in place of writing an entirely new instrument, a paragraph or more is added to the original will, and such para- graph when so written, is called a codicil. One or more codicils may be added and they may dispose of additional property or in some man- ner change the gifts as originally written. If a testator acquires property after execut- ing a will and it was not provided to dispose of after acquired property in the will, it does not pass by the will of the decedent, but is in- herited by his heirs, and he is said to have died intestate as to that particular property. Yet where a will contains a last para- The graph called a residuary clause de- rpsidiio.rv clause. vising "any and all other property not herein mentioned or any prop- erty that may be hereafter acquired," or to which the testator may be entitled by contract, inheritance or devise at his death, to some specified person, the party so named will re- ceive all and any such as there might be; and WILLS ESTATES TESTATE. 225 said last named person is called the residuary legatee. A will is usually spoken of as a last will and testament, the term testament no doubt being preserved from the Eoman law. There is no derivative of the word will, it standing as well for the verb as for the noun, hence it is reason- able to retain the other term by which the de- rivatives may be formed. The party making a will is a testator ; testatrix, if a woman ; the gift is a testamentary devise; the authority of the court to the party settling the estate, letters testamentary, etc. The gifts disposed of by a will are either a devise or a legacy; as com- monly used devise is of land and legacy is of personal property, while bequest is a general term applied to both. A recipient of a devise is known as a devisee and one who receives a legacy is a legatee. Almost any interest in land may be devised, the entire estate or any part thereof. Thus the income for a number of years may be given to A. or it may be left to him during his lifetime, with remainder to B. or to the children of A. Or the land may be left to some one in trust to collect the income and pay it over to A. during his life time and then to convey it to another. The simplest conveyance is that of the fee un- restricted when the devisee comes at once into full possession of the entire estate. 15 226 LAND SURVEY AND LAND TITLES. The lands of a testator always stand bur- dened with any debts he may have owed at his death, and it cannot be determined until a set- tlement of the estate is had, whether or not the lands may be divided as the will directs. This settlement of the estate is explained * n ^ ne previous chapter; in addition to the procedure there mentioned a further action in the same court is had to prove the will. This is known as probating the will, 1 and is in fact a proving of the following points in relation thereto: 1. That it is in fact the identical writing or instrument that was executed as the last will and testament of the decedent. 2. That at the time of its execution the testa- tor was of sound mind and disposing memory. 3. That it was executed without fear or un- due influence by another. 4. That the testator understood the instru- ment to be his last will and testament at the time of its execution. The above proofs are obtained from the evi- dence of the witnesses to the will testifying in court; or if one, or more, of the witnesses has died, his name as a witness is proven by the L In some states the court having in charge the prov- ing of wills is known as the surrogate court, in others the probate court, in still others the county court, etc., as local statutes direct WILLS ESTATES TESTATE. 227 testimony of others who may know the hand writing of such witness. When a will has been thus probated or proven the executor named in the will to settle the es- tate, proceeds to collect the property and to pay all debts of the testator. If, however, the exec- utor named, executrix if a woman, declines to act, the court will name some proper person to see to a settlement of the estate. 2 Aside from the claims of persons whom the deceased may have owed, if the will provides for the payment of specific sums of money, these legacies must be paid and the executor is in duty bound so to do. If there is not sufficient money or personal property to satisfy all debts, and to pay all the legacies mentioned, it will be necessary for the executor to sell part or all of the land in order to meet the de- The mands of debts and legacies. Thus it payments of debts. is not known if the devise of a tract of land will be accomplished and the devisee will receive his gift until after the es- tate is settled and all other claims are paid. Whoever takes under a will, takes a fee the same as by deed, but unlike a transfer by deed the title is burdened with all the debts and obli- 2. Where an executor named in a will to settle the estate, declines to act the one appointed by the court is called Executor cum testamento annexo (executor with will annexed). 228 LAND SURVEY AND LAND TITLES. gations of the testator, as well as being subject to all legacies mentioned in the will itself. What at first appeared to be a valuable inheritance, may be entirely dissipated in the process of set- tlement of the estate. Where a devisee or legatee dies prior to the testator, the devise returns to the estate of such testator and does not descend to the heirs of the devisee except it is so specifically stated in the will. Frequently the real estate devised is so in- definitely described that the separate parts can- not be distinguished or identified, in which case the wish of the testator cannot be regarded, wherefore the property must be treated as in- testate property and divided among the heirs according to the laws of descent of the place where the property is located. Or by a misde- scription the land intended to be devised to one may be entirely omitted, in which case this particular devisee must have deeds from all heirs of the testator, he having died intestate as to this tract intended to be conveyed. From the above it will be understood that the writing of wills is a particular task writ*? Twin an( ^ snou l