ELDREDGC aDREDGE 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 MICHIGAN LAW 
 
 . c/y 
 
 CONVEYANCING 
 
 A BRIEF 
 
 Used in connection with lectures 
 at the University of Detroit by 
 Lloyd L. Axford, Detroit Bar 
 
 1916 
 
 FRED S. DRAKE 
 DETROIT
 
 T
 
 HISTORICAL INTRODUCTION 
 
 The subject of Conveyancing concerns the practical 
 application of the law of real property in the transfer 
 of estates or interests in land. 
 
 The transfer of an estate in land is effected in the 
 United States : 
 
 1. By voluntary conveyances by one person 
 to another. 
 
 2. By descent under the laws of succession 
 existing in the various states of the Union. 
 
 3. By a devise contained in a last Will and 
 Testament. 
 
 4. By operation of law. 
 
 We will consider only voluntary conveyances and a 
 brief reference to their history and origin may aid you 
 in your study of a rather technical subject. 
 
 Our conveyances, like our common law, are of Eng- 
 lish origin and grew out of the Feudal System and the 
 Statutes Mortmain, or to be more exact, through in- 
 genious evasions of the latter statute. 
 
 709759
 
 2 HISTORICAL INTRODUCTION. 
 
 The Feudal System was introduced into England 
 shortly after the Norman Conquest. Under it all the 
 lands of the Kingdom were held in military tenure un- 
 der the King as the ultimate lord of the fee. The bar- 
 ons and other lords took an oath of fealty to the King 
 and received an allotment of land under an obligation 
 to return military service. The barons in turn made 
 allotments of their land to their inferiors or vassals 
 under similar obligations. These allotments were termed 
 feuds or fees. When it became desirable or necessary 
 to assemble the armed array of the kingdom, the King 
 called upon his vassal, the baron, to perform his obliga- 
 tion; the baron made a like demand upon his inferior, 
 and the inferior on those under him, if any. The result 
 was an assembled power for defense or aggression. IF 
 any vassal failed to perform the condition of his oath 
 or deserted his lord in battle, his feud or fee was for- 
 feited to his overlord and again allotted by the lord to 
 others. 
 
 In early days of Feudalism, men were skilled in the 
 art of war rather than the art of writing, and the con- 
 veyance or transfer of the feuds or fees was accom- 
 plished by delivery of possession by the lord to the 
 vassal in the presence of the peers and free holders of 
 the locality, accompanied by an oral declaration of the 
 boundaries of the land allotted and the conditions under 
 which the vassal was to hold, which were assented to by 
 him. 
 
 This public delivery of possession was termed Livery 
 of Seizen. Later of Livery of Seizen in conveyances 
 was accomplished by the delivery of some symbol which 
 it was agreed should represent the land as a twig of a
 
 FEUDAL SYSTEM. 3 
 
 tree or some other small article which was a part of the 
 particular premises. 
 
 This oral statement, publicly made, coupled with Liv- 
 ery of Seizen, constituted a Feoffment, which was the 
 original conveyance of land at common law. 
 
 Proof of the nature and terms of the grant, if it was 
 afterwards questioned, was dependent upon oral testi- 
 mony. Later on the terms of feoffments were fre- 
 quently reduced to writing, which was sealed and de- 
 livered for the purpose of preserving the evidence of 
 the grant. However, a deed was not essential to the 
 validity of feoffment in England until the year 1845, 
 though the statute of frauds required a memorandum in 
 writing at an earlier date. 
 
 As stated, the armed array of the kingdom was de- 
 pendent upon the feudal tenants performing their mili- 
 tary tenure. Corporations, religious and temporal, 
 came into existence and were permitted to hold lands, 
 but it was the law of the kingdom that corporations ag- 
 gregate could not commit treason, felony nor crime, nor 
 suffer attainder, forfeiture nor outlawry. The corpo- 
 rate existence was perpetual. There was no way to 
 enforce a breach of the conditions of a feudal tenure 
 when the lands were held by a corporation and be- 
 cause of their perpetual existence the overlords were 
 deprived of many emoluments incident to the Feudal 
 System. 
 
 Whether from individual self-interest of the King to 
 preserve the emoluments of the Feudal System or from 
 public policy in preserving the armed array of the king- 
 dom, statutes were enacted and modified from time to 
 time prohibiting the holding of land by corporations and
 
 4 HISTORICAL, INTRODUCTION. 
 
 declaring them forfeited to the overlord when so con- 
 veyed. 
 
 The original statute was termed the Statute Mort 
 main, meaning the statute against the dead hand. 
 
 To evade the penalty of forfeiture, uses and trusts 
 which had existed under the civil or Roman law were 
 introduced into England. Under this device the land 
 was granted to one who contemporaneously agreed that 
 another, designated as cestui que trustent, should have 
 the rents and profits of the premises. Under this scheme 
 the corporations as cestui que trustents did not acquire 
 the legal title, but received all the benefits of the own- 
 ership of the land. Their ingenuity was met by the 
 Statutes of Uses which declared in effect that the party 
 entitled to the rents and profits of the land should be 
 deemed sole and complete owner, that is, the cestui que 
 trustent took the legal title as well as the rents and 
 profits. 
 
 It may be observed that the strife between legislative 
 power and corporate interest, now so prominent before 
 the public, originated as early as the reign of Henry 
 III, and Blackstone, in his Commentaries, states that 
 the Saxons some sixty years previous to the conquest, 
 imposed restrictions upon the corporate holding of 
 lands. 
 
 The instrument employed to create the use was a deed 
 or contract of bargain and sale by which the owners of 
 the land bargained or agreed to sell and convey it to 
 another for a consideration and by the terms of the 
 same instrument, or a part of the instrument, the 
 grantee agreed to stand seized of the land for the use
 
 DEFINITION OF DEED. 5 
 
 of the purchaser. As stated, the Statute of Uses exe- 
 cuted the trust, and the purchaser became vested with 
 the seller's title. 
 
 Livery of Seizen, the only publicity given the transfer 
 of land, was not necessary in this class of conveyances. 
 Some years later Parliament, to prevent secret trans- 
 fer of land, declared that bargain and sales should not 
 pass an estate in freehold unless made by indenture and 
 enrolled in certain public offices. 
 
 This deed of bargain and sale is the precedent, which, 
 modified and curtailed from time to time, resulted in the 
 deeds of conveyance in common use in most of the Unit- 
 ed States. 
 
 Blackstone, in his consideration of the subject of con- 
 veyances, in addition to the conveyance of feoffment and 
 bargain and sale, has classified some fourteen convey- 
 ances and most text writers have followed his example 
 This refinement of classification in most instances re- 
 lates to the particular interest, estate or tenure sought 
 to be conveyed and is of little or no practical impor- 
 tance. 
 
 A deed is defined by Blackstone as 
 
 "A writing sealed and delivered by the party." 
 
 Mr. Washburn states: 
 
 "A deed is defined to be a writing containing 
 a contract and delivered by the parties thereto." 
 
 In fixing these definitions in your mind it must be re- 
 membered that the deed thus defined is not limited to 
 conveyances of land, but includes all formal written 
 contracts required at common law to be under seal.
 
 6 DEEDS. 
 
 Bonds or mortgages were "writings sealed and de- 
 livered by the party" and were deeds within either defi- 
 nition, and in this state in a criminal prosecution for 
 forgery where the information charged the forging of 
 a deed a conviction was sustained where the proofs 
 showed the forging of a chattel mortgage. 
 
 People vs. Watkins, 106 Mich., 437. 
 
 The popular and common use of the term "deed" re- 
 fers to a conveyance of land, other sealed contracts be- 
 ing referred to by their distinctive name, as bonds, 
 mortgages, leases, assignments, discharges, etc. 
 
 The definitions given have been criticized and en- 
 larged by text writers, but the question of whether or 
 not an instrument constitutes a conveyance of land has, 
 so far as my knowledge goes, never been determined by 
 the application of any definition. 
 
 The form of a deed at common law was either an In- 
 denture or Deed Poll. If the instrument contained obli- 
 gations of both the grantor and the grantee, it was pre- 
 pared in two parts upon the same sheet of parchment 
 or paper and then cut apart in an indented or wavy line. 
 The two parts were identified, when it became necessary 
 by fitting them together. The two papers when fitted 
 together made the complete deed, hence the term In- 
 denture. 
 
 If the instrument contained the obligation of but one 
 party, it consisted of but one part and was polled or 
 cut even, which is the origin of the term Deed Poll. 
 
 The common form of deeds in use in Michigan at the 
 present time are termed:
 
 EXECUTION BY THE GEANTOE. 7 
 
 1. Warranty Deeds. 
 
 2. Special Warranty Deeds. 
 
 3. Quit Claim Deeds. 
 
 All of these retain in part at least the form of the 
 old indenture and commence, "This Indenture, Made 
 this Day, etc." 
 
 The printing of blank deeds or use of blank form of 
 deeds containing the words "Warranty Deed" or "Spe- 
 cial Warranty Deed," unless such deed be an absolute 
 warranty, is made a statutory crime in Michigan. 
 
 11368 Comp. Laws, Mich., 1897. 
 
 Deeds made by those in a representative capacity, 
 such as executors, guardians, sheriffs, commissioners, 
 and other officers of the court, retain the form of the 
 old Deed Poll, and usually commence, "Know All Men 
 by These Presents, That I," and continue with a recital 
 of the source of authority, and a grant of the land in 
 question with covenants limited to the acts of the 
 grantor. 
 
 The use of the Indenture with its means of mechan- 
 ical identification may have been a device to aid the il- 
 literate in identifying their papers in the same manner 
 that the seal was used to enable them to identify signa- 
 tures, though I know of no authority for this idea. 
 
 Deeds in modern use are ordinarily executed by the 
 grantor only, but we occasionally meet with deeds 
 drafted for the purpose of effecting a partition or ex- 
 change, signed by all of the parties, and most deeds con- 
 tain the substance of the old common law forms, though 
 very much curtailed.
 
 8 DEEDS. 
 
 In Michigan and many of the other states the Legis- 
 latures have provided what is termed a " Statutory 
 Short Form of Deed." These forms contain in sub- 
 stance the date, names of the parties, description of the 
 land, a recital of the consideration; the words "convey 
 and warrant" or the word "quitclaim" are substituted 
 for the remainder of the old common law form, and the 
 statute provides that "the conveyance duly signed 
 sealed and acknowledged" containing these words shall 
 be construed to have the same effect as if the common 
 law form had been followed. Their use has not been 
 popular. 
 
 9014 Compiled Laws, Mich., 1897. 
 
 Warranty Deeds and Quitclaim Deeds differ in form, 
 in that the former contains covenants or agreements 
 guaranteeing the condition of the grantor's title, while 
 the quitclaim deed contains no covenants of any kind. 
 
 The legal effect of the two instruments and the rights 
 of a purchaser under one or the other are decidedly dif- 
 ferent. The quitclaim deed under the rule which obtains 
 in Michigan and most of the states, conveys only the 
 estate which the grantor had at the date of delivery, 
 and the purchaser under a quitclaim deed cannot claim 
 the position of a bona fide purchaser for value under the 
 recording laws. 
 
 On the other hand, a warranty deed not only con- 
 veys the present interest of the grantor but usually 
 conveys any other title outstanding at the time of the 
 grant, which the grantor afterwards acquires, and the 
 purchaser in the absence of actual notice is a bona 11 de 
 purchaser, and protected against any claims against 
 the property which have not been placed of record in the
 
 LAWS OF THE LAND. 
 
 proper public office, and of which he had no actual no- 
 tice. 
 
 The rule that a purchaser under a quit-claim deed 
 cannot be a bona fide purchaser has been changed by 
 statute as to deeds made after August 23rd, 1915. 
 
 Act 199, P. A., Mich., 1915 
 
 I believe that if the common law rule were followed 
 to its origin it would be found that it applied to the old 
 common law deed of release and that our so-called quit- 
 claim deed in common use is technically a deed of bar- 
 gain and sale and is not the quit-claim deed known to 
 the common law. 
 
 The formality of livery of seizen has been abolished 
 in all the states, and conveyances of land are required 
 to be in writing. However, land may still pass without 
 writing. For example, if an oral gift of land has been 
 made and the donee takes possession of T;he land, and is 
 permitted to remain in possession, claiming ownership 
 for such a period of time that the statute of limitations 
 bars the donor's action to recover possession, he will 
 acquire an unassailable title, and the Court of Equity 
 will usually enforce an oral agreement to sell land where 
 possession has been taken and valuable improvements 
 made by the purchaser. 
 
 While not strictly a part of the law of conveyancing, 
 it is germane to note at this time, that though a deed 
 may be termed a contract, the law of the place where the 
 land is situated and not the law of the place where the 
 deed is made, as in other contracts, govern the validity 
 of conveyances as to their form, the capacity of the par- 
 ties, their construction and interpretation and the val- 
 idity of their provisions.
 
 10 DEEDS. 
 
 For example : If a deed were executed in the State of 
 Massachusetts conveying land situated in that state and 
 also conveying land in Michigan, to a trustee with a 
 direction to apply the rents and profits to A for life, 
 after his death to B for life, after his death to C for 
 life and at C's death to convey the land to C's then liv- 
 ing issue, the instrument would create a valid trust in 
 the Massachusetts lands where the common law rule 
 against perpetuities prevails, while the trust and the 
 deed creating it as to the Michigan lands would be void 
 under the Michigan statutes regulating the suspension 
 of alienation. 
 
 While not strictly an exception to the rule stated, it 
 must be observed that the Constitution of the United 
 States provides: 
 
 "That all treaties made or which shall be 
 made, shall be the supreme law of the land and 
 the judges in every state shall be bound thereby. ' ' 
 
 It follows that this provision overrules the laws of 
 the various states. If the law of a particular state pro- 
 hibited the holding of land by an alien and a treaty be- 
 tween the United States and alien's sovereign provided 
 otherwise, the conveyance to the alien would be upheld. 
 
 In referring to the particular parts of a deed, we still 
 use the designations which Blackstone applied 150 years 
 since, and which he then stated "had been well consid 
 ered and settled for successive ages." 
 
 While all the formal parts do not necessarily enter 
 into every deed, their names and the order in which 
 they usually appear are as follows: 
 
 1. The premises. 
 
 2. The habendum.
 
 HABENDUM. 11 
 
 3. ihe tenendum. 
 
 4. The reddendum. 
 
 5. The conditions. 
 
 6. The covenants. 
 
 7. The conclusion. 
 
 Premises : 
 In this part we find: 
 
 (A) The date, if the instrument is in form of 
 an Indenture. If in the form of a Deed Poll the 
 date is in the conclusion. 
 
 (B) The parties, their residences, title or oc- 
 cupation and the explanatory recitals concern- 
 ing the parties, or the source of their authority 
 (the custom of stating the title and occupation of 
 the parties is not observed, though if this custom 
 had been preserved it would be a great aid when 
 it is necessary to identify a party to an ancient 
 deed). 
 
 (C) The statement of the consideration and 
 the acknowledgment of its payment. 
 
 (D) The operative words of conveyances, viz: 
 grant, bargain, sell, release, alien and confirm. 
 
 (E) Words of limitation, that is language in- 
 dicating whether the estate conveyed is a fee or 
 less than a fee. 
 
 (F) The description of the property conveyed. 
 
 Habendum : 
 
 In this part of the deed we find the limitations of 
 the estate granted viz : Words determining whether the 
 deed conveys an estate in fee simple or for life or years, 
 though words of limitations are usually inserted in the 
 premises in connection with operative words.
 
 12 DEEDS. 
 
 The Tenendum 
 
 Is now obsolete and originally stated the feudal ten- 
 ure and the feudal lord to whom it should be rendered. 
 
 Reddendum : 
 
 In this part of the deed we find the reservations ; for- 
 merly rents or menial service, now usually possession 
 for a limited time. 
 
 Conditions : 
 
 In this part of the deed are sometimes inserted 
 conditions upon the happenings or non-happenings 
 of which the estate granted is enlarged or defeated. 
 For example, land is conveyed by father to son, but 
 upon condition that the son support the father during 
 life, and if the son fails to perform his obligation the 
 land reverts to the father and the deed is void. 
 
 Covenants : 
 
 In warranty deeds agreements are always inserted 
 which usually consist in an undertaking on the part 
 of the grantor that he is seized in fee, that the land 
 is free from incumbrances, and that he will warrant 
 and defend the title against all lawful claims. 
 
 Conclusion : 
 
 In this part of the deed we find a recital that the deed 
 has been executed, the date of signing and sealing or a 
 reference to the date in the premises. 
 
 This is followed by the signatures of the parties, their 
 seals, if required, the signatures of the witnesses, if re- 
 quired, and usually an acknowledgment or proof of exe- 
 cution.
 
 DATE OF DEEDS. 13 
 
 An acknowledgment or proof of execution was not a 
 part of the common law deed, and in most of the states 
 is not essential to the validity of modern deeds, though 
 a deed, the execution of which is neither proved nor ack- 
 nowledged is not usually entitled to record. 
 
 It would seem from the language of the statute au- 
 thorizing the use of the statutory form of deeds taken 
 literally that acknowledgments are essential to their 
 validity. 
 
 9014, Comp. Laws, Mich., 1897. 
 
 DATE OF DEEDS. 
 
 The date was not essential to the validity of a deed 
 at common law. The date would seem to be essential 
 to the statutory short form. 
 
 A deed takes effect or becomes operative at the date 
 of delivery by the grantor to the grantee, and is legally 
 presumed to have been delivered at its date of execu- 
 tion. 
 
 If the instrument is required by law to be acknowl- 
 edged, it is the rule in Michigan and some of the other 
 states that if acknowledged at a date later than the 
 stated date of execution, it is presumed to have been 
 delivered at the date of its acknowledgment. 
 
 Blanchard vs. Taylor, 12 Mich., 339. 
 Johnston vs. Moore, 28 Mich., 3. 
 
 This is only a legal presumption and may be over- 
 come by proof and circumstances. 
 
 Eaton vs. Trowbridge, 38 Mich., 354.
 
 14 DEEDS. 
 
 The true date of delivery becomes important where 
 title is derived through a quit-claim deed, because, as 
 before stated, such a deed passes only the title the 
 grantor had at the date of its delivery. It is also im- 
 portant in connection with the covenants against incum- 
 brances, particularly in relation to taxes. 
 
 In closing sales of real estate many a wrangle will 
 arise as to whether the seller or purchaser must pay an 
 existing tax or whether or not a purchaser can recover 
 the amount paid for a tax in an action for breach of the 
 covenant against incumbrances. 
 
 The rule is that if a tax is a lien upon the land at the 
 date of the delivery of a deed, the grantor is bound to 
 pay it, while if not then a lien, the purchaser must bear 
 the burden. 
 
 The leading Michigan cases are: 
 
 Eaton vs. Cheeborough, 82 Mich., 214, which relates 
 to general taxes, and 
 
 Lindsay vs. Eastwood, 72 Mich., 336, which relates to 
 special assessments. 
 
 A reading of these cases will give you the reasons for 
 the rules and you will also observe that the time the tax 
 becomes a lien upon the land is fixed by statutory law. 
 
 PARTIES TO DEEDS. 
 
 In every deed there must be a grantor and grantee. 
 The grantor must have the same capacity as is required 
 in an ordinary contract.
 
 PARTIES. 15 
 
 At common law a grantor could not convey to him- 
 self. For a modern decision where a deed from a man 
 to himself and his wife was involved, read 
 
 Wright vs. Belknap, 21 D. L. N., 1225. 
 
 A deed executed by an insane or incompetent person 
 or procured by fraud or undue influence is either void 
 or voidable and may be set aside. 
 
 In Michigan our courts first held such a deed void. 
 Rogers vs. Blackwell, 49 Mich., 192. 
 
 Later a deed from an insane person was held void- 
 able. 
 
 Wolcott vs. Insurance Co., 137 Mich., 309. 
 
 The distinction between a void and a voidable deed 
 is, that in the former no rights are acquired by the 
 grantee, while in the latter, the grant passes title unless 
 repudiated, and it may be said that the circumstances 
 surrounding each particular case are important in de- 
 termining which rule applies. 
 
 An infant's deed is voidable, and may be affirmed by 
 express act or by acquiescence after attaining majority. 
 
 The majority of a married woman in Michigan so far 
 as it relates to releasing her inchoate dower or any 
 other interest in her husband's lands is reached at the 
 age of eighteen years. 
 
 Act 187, P. A. of Mich., 1899. 
 
 In drafting deeds it is customary to designate the 
 grantors as parties of the first part, and the grantees 
 as parties of the second part, together with their resi-
 
 16 DEEDS. 
 
 dences, and often some recital connecting them with 
 previous title or other explanatory matter is added. 
 
 These additions have no bearing upon the validity of 
 the deed, but serve to identify the person. They are 
 useful when it becomes necessary to identify the parties 
 to an old deed. If the grantor is a married man, his 
 wife usually joins in the execution of the deed, and her 
 name is followed by a recital, "his wife." 
 
 If the grantor be an unmarried man, his name is usu- 
 ally followed by recital, "a single man" or a "wid- 
 ower. ' ' 
 
 Under the law now in force in Michigan a deed or 
 mortgage, which does not state whether the male grant 
 ors are married or single, is not entitled to record. 
 
 Act 79, Pub. Act Mich., 1915. 
 
 It is customary in examining land titles to accept 
 these recitals as true, but they are not conclusive and 
 are of no effect if false. If a married man makes a 
 deed reciting in the deed that he was single, it would 
 not bar his wife's inchoate dower, though if the deed 
 were a quit claim an action might lie upon the false 
 misrepresentation. In such a case a purchaser under a 
 warranty deed would have his remedy under the cove- 
 nants. 
 
 Recitals are not evidence of the facts stated. 
 Wolf vs. Holton, 104 Mich., 107. 
 
 They are ordinarily binding upon parties to the deed 
 but not upon strangers, but they are notice of the facts 
 stated.
 
 PRESUMPTION OF IDENTITY. 17 
 
 Recitals in ancient documents, however, are evidence 
 and binding upon strangers. 
 
 Norris vs. Hall, 124 Mich., 170. 
 
 If the records of a land title show a grant to one per- 
 son followed by a grant from a person of the same 
 name, there is a legal presumption that the persons are 
 identical. 
 
 Goodell vs. Hubbard, 32 Mich., 47. 
 
 In drawing deeds it is desirable that you have an ab- 
 stract of title before you and keep the spelling of the 
 names uniform, that this presumption may be preserved 
 beyond question, or if there has been a variance, insert 
 a recital in the deed explaining the previous error. 
 
 This is not always necessary under the strict 
 rules of law. Names which sound alike although spelled 
 differently are presumed to be the same, that is, idem 
 sonans. 
 
 People vs. Finnegan, 5 Mich., 146. 
 Boyce vs. Dans, 29 Mich., 146. 
 Kinney vs. Barrett, 46 Mich., 87. 
 Brown vs. Quinland, 75 Mich., 289. 
 Detroit vs. Macier, 117 Mich., 76. 
 
 This presumption of identity does not follow where 
 the Christian and family names are used followed by 
 the family name and similar initials, that is, it will not 
 be presumed that J. A. Blair and James A. Blair are 
 the same person. 
 
 Bennett vs. Libhardt, 27 Mich., 488. 
 Where a father and son bear the same name and
 
 18 DEEDS. 
 
 there is nothing to distinguish which is intended, the 
 father is presumptively the grantee. 
 
 Dehn vs. Dehn, 170 Mich., 407. 
 
 If, however, a person is known by two names, his 
 deeds executed in either name will be valid on proof 
 of the facts. A deed from William Hommell was held 
 to be the deed of Wendelin Hommell. 
 
 Hommell vs. Devinney, 39 Mich., 522. 
 
 A variance in the middle name or initials or an omis- 
 sion of a middle name or initials does not generally 
 change the presumption of identity. The middle name 
 is regarded as of no consequence. 
 
 Berbery vs. The Judge, 82 Mich., 160-165. 
 
 The common law does not recognize middle names. 
 In the earliest times given names alone were used to 
 identify persons, with an added statement of their resi- 
 dence or occupation. 
 
 For example: John of Seybrook or John the son of 
 John of Seybrook, or John, the miller of Seybrook, or 
 John, the smith of Seybrook. 
 
 The residence or occupation thus attached was the 
 derivation of surnames. John, the miller, became John 
 Miller, etc. 
 
 Massachusetts, Maine, California and other states 
 have abandoned the common rule law, and regard the 
 middle name or initials as having an important bear- 
 ing upon the question of identity. 
 
 At common law, if a person not named in a deed 
 joined in its execution as one of the grantors, the weight
 
 GRANTEES. 19 
 
 of authority was that his interest in the land, if any, did 
 not pass as there was nothing in the deed to indicate an 
 intention of conveying. Such was the rule in Michigan. 
 
 Newton vs. Me Kay, 29 Mich., 1. 
 
 This doctrine has been overruled in the recent case of 
 Agar vs. Streeter, 21 D. L. N., 1227. 
 
 When a woman acquires land and subsequently mar- 
 ries, it is customary to describe her with her husband's 
 surname followed with a recital of her former name, 
 as "Mary Smith, formerly Mary Jones." 
 
 GRANTEES. 
 
 The grantee is not ordinarily required to have the 
 same capacity as a grantor, and deeds to infants, insane 
 persons and others who have no capacity to make a con- 
 tract are generally valid. 
 
 As a general rule the grantee must be described with 
 certainty, and be a person in being and capable of hold- 
 ing land. This rule is not very rigidly observed. The 
 grantee need not be named in the premises. It is only 
 necessary that it can be determined from the deed to 
 whom it was intended to convey the land. 
 
 An illustration of a liberal construction of a grant 
 will be found in 
 
 Newton vs. Me Kay, 29 Mich., 1. 
 For a deed held void because of uncertainty of the 
 
 Skinner vs. Grace Church, 54 Mich., 543.
 
 20 DEEDS. 
 
 A deed in the alternative has been sustained as a deed 
 "to a man or his heirs." 
 
 Ready vs. Kersley, 14 Mich., 215. 
 
 A conveyance to the estate of a deceased person has 
 been held void for uncertainty. 
 
 Summons vs. Spratt (Fla.), 1 So., 860. 
 Me Inerney vs. Beck, 10 Wash., 515. 
 
 This error is not uncommon and if you will consider 
 the literal meaning of the language you must conclude 
 that it describes property and not a person. 
 
 The estate of a deceased person may be land, stock, 
 bonds, chattels, or choses in action. 
 
 A deed to a person reciting that he is an administra- 
 tor of the estate of another person vests the title in the 
 person named and not in the heirs or creditors of the 
 deceased person, and a conveyance by the party named 
 passes the title. 
 
 Little vs. Lesia, 5 Mich., 119. 
 
 Whether a deed to a person named, followed by the 
 word "trustee," vests the title in the person or gives 
 notice of a trust, is a mooted question. I believe the 
 better rule is that the addition of the word "trustee" is 
 merely descriptive of the person and it seems to me that 
 this rule is sustained by the case of 
 
 Little vs. Lesia. 
 
 See also 
 
 Sanborn vs. Loud, 150 Mich., 155.
 
 HUSBAND AND WIFE. 21 
 
 One of the leading cases holding the contrary rule is 
 Union Pac. R. R. Co. vs. Durand, 95 U. S., 576. 
 
 Where two or more grantees are named in a deed, un- 
 less there is something to the contrary expressed in the 
 deed, they take as tenants in common in equal shares. 
 
 8826 C. L. Mich., 1897. 
 
 // ^ * 2 
 
 It may be expressly declared in a deed that the par- 
 ties shall take in joint tenancy. 
 
 Supra. 
 
 At common law the rule was reversed and the gran- 
 tees were presumed to be joint tenants, unless declared 
 to be tenants in common. 
 
 There is one statutory exception to this rule. 
 
 Where a deed runs to a husband and wife whether 
 named as such in the deed or not, if the marriage rela- 
 tion actually exists, they take as tenants by entirety. 
 
 $8827, C. L. Mich., 1897. 
 
 3 
 
 A devise of land to husband and wife creates the 
 same estate. 
 
 Supra. 
 
 Where husband and wife purchase land under a con- 
 tract they are also tenants by entireties. 
 
 Auditor General vs. Fisher, 84 Mich., 128. 
 Schleiss vs. Thayer, 170 Mich., 395.
 
 22 DEEDS. 
 
 Where husband and wife acquire lands under the 
 laws of descent or succession the Courts have held they 
 are tenants in common. 
 
 Brown vs. Barabro, Wis., 18 L. R. A., 320. 
 
 Husband and wife are tenants by entirety though the 
 grant passes an estate less than a fee. 
 
 Beamer vs. Vinton, 55 Mich., 559. 
 
 Where a deed runs to several persons, two or more 
 of whom are husband and wife, without specification of 
 the particular shares, husband and wife usually count 
 as one person and take one share, viz : 
 
 A deed to John Smith and Mary Smith, his wife, and 
 James Jones, parties of the second part, would vest an 
 undivided half of the premises in Smith and wife as ten- 
 ants by entireties and the remaining undivided half in 
 Jones. 
 
 Deeds to partnerships should name the partners in- 
 dividually as grantees. 
 
 Generally a deed to John Smith & Co. is held to vest 
 the legal title in John Smith and not in the other part- 
 ners constituting the company. 
 
 A deed to Jones and Brown vests the title in both. 
 
 A deed to a partnership under a trade name, as * * The 
 Bazaar," is void for uncertainty. 
 
 As our statutes now require a public record of the 
 names of the individuals conducting a business venture 
 under an assumed name, the rule may be changed if 
 the question should again come before the courts.
 
 COEPOEATIONS. 23 
 
 Act 101, P. A. Mich., 1907. 
 
 It is a maxim that "That is certain which can be 
 made certain. ' ' 
 
 When we speak of deeds being void for uncertainty 
 or various defects, we mean no title to the land will vest 
 under such a grant. Usually the real party in interest 
 can protect his rights in a court of equity. An equitable 
 title is not recognized in the law courts and cannot be 
 introduced in defense or support of an action of eject- 
 ment. 
 
 DEEDS TO AND FROM COEPOEATIONS. 
 
 From the time of the passage of the statute mortmain 
 until a comparatively recent date the power of a cor- 
 poration to hold lands has been limited to that necessary 
 for the conduct of its principal business. In recent 
 years the formation of corporations for the express pur- 
 pose of holding and dealing in lands has been author- 
 ized in most of the states. 
 
 Ordinarily deeds to and from corporations run in the 
 corporate name followed by a recital that the party is 
 a corporation organized under the laws of a state 
 named. 
 
 Where the words of limitation, that is, the words, 
 " heirs and assigns," would appear in a deed between 
 natural persons, the word "successors" is substituted 
 for the word "heirs," but this addition is not essential 
 to create an estate in fee in a corporation.
 
 24 DEEDS. 
 
 Corporate deeds are usually executed by the presi- 
 dent and secretary and attested by the corporate seal. 
 
 However, the statute under which the corporation is 
 organized often directs the manner in which grants of 
 land shall be executed, and if silent the by-laws of the 
 corporation usually cover the question. 
 
 It is necessary to examine the statutory law above re- 
 ferred to in each instance and if it happens to be an old 
 corporate deed that is in question, the law in force at 
 the time of its execution. 
 
 CONSIDERATION. 
 
 A study of decided cases on the question of the neces- 
 sity of a consideration for a deed will result in many 
 apparently conflicting statements. 
 
 It may be said generally that between the parties and 
 their privies a deed is valid without a consideration. 
 Such is the Michigan rule. 
 
 Gale vs. Gould, 40 Mich., 515. 
 
 Where the rights of third parties are involved such 
 as the creditors of a grantor, a deed without considera- 
 tion will be set aside, and in such a case the considera- 
 tion must ordinarily be a valuable consideration if the 
 deed is to be sustained. 
 
 The recital of a consideration in a deed is not suffi- 
 cient evidence when the validity of the grant is attacked 
 by third persons. 
 
 Ripley vs. Seligman, 88 Mich., 177.
 
 CONSIDERATION. 25 
 
 The true consideration for a deed can always be 
 shown by parol evidence. 
 
 This may appear to be a violation of the rule that a 
 written contract cannot be varied by parol evidence, 
 but technically, the statement of the consideration in a 
 deed is not a part of the contract, it is not "an agree- 
 ment to do or not to do a particular thing. ' ' 
 
 Deeds generally contain an acknowledgment of re- 
 ceipt of the consideration. This practice originated to 
 prevent a trust resulting under the old common law 
 rules. 
 
 Resulting trusts are now abolished by statute iu 
 Michigan. 
 
 8835 Comp. Laws Mich., 1897. 
 
 c z. /*<i/, / ?/*- '/& 7 / 
 
 Most deeds, as drawn at the present time, recite as 
 consideration, "The sum of one dollar and other valu- 
 able consideration," particularly in the City of Detroit. 
 
 A few years ago an act was passed by the legislature 
 requiring that every deed of land left with the Wayne 
 County Register's office for record be sent to the As- 
 sessor's office before being returned to the owner. The 
 Assessor's interest seemed to have been to note the re- 
 cited consideration in the deed upon the field book for 
 the following year's assessment. 
 
 Immediately afterwards the practice of reciting $1.00 
 in deeds arose, and it prevails in some ninety per cent 
 of the instruments recorded from day to day. 
 
 It is said that a law which does not have the support
 
 26 DEEDS. 
 
 of public opinion is rarely enforced. It is my observa- 
 tion that tax laws which are not burdensome are gen- 
 erally observed, while those which are confiscatory are 
 evaded. Few, if any, find fault with the present mort- 
 gage tax law or federal income tax law. In each in- 
 stance the amount demanded is within the means of the 
 person affected. 
 
 OPERATIVE WORDS. 
 
 The operative words of a deed constitute that part of 
 the premises which manifest an intention to grant or 
 transfer something. 
 
 The words ordinarily used are : 
 
 Grant, bargain, sell, remise, release, alien and con- 
 firm. 
 
 These words are borrowed from the technical words 
 of the old forms of deeds. 
 
 The operative words of the various forms were : 
 
 Feoffment "Give, grant and enfeoff." 
 
 Grant "Give and grant." 
 
 Lease "Demise, grant and to farm let." 
 
 Exchange * * Exchange. ' ' 
 
 Release "Remise, release and forever quit- 
 claim." 
 
 Confirmation "Give, grant, ratify, approve 
 and confirm." 
 
 Surrender "Surrender, grant and yield up." 
 
 Bargain and sale "Bargain and sell 'or' give, 
 grant, bargain and sell."
 
 OPERATIVE WORDS. 27 
 
 Covenant to stand seized " Covenant to stand 
 seized to the use of." 
 
 The practice of combining the operative words of the 
 various kinds of deeds arose through precaution of the 
 ancient conveyancers. Their idea was that if the instru- 
 ment would not operate as one kind of a conveyance it 
 would as another. 
 
 Our predecessors endeavored to make the law an ex- 
 act science, while modern courts seem to attempt to do 
 justice in individual cases. 
 
 The general rule in most of the states at the present 
 time is that if the whole instrument shows an intent to 
 pass title it will be so construed, if practicable, to have 
 that effect. 
 
 Brewton vs. Watson, 67 Ala., 121. 
 
 Johnson vs. Banlock, 38 III., 611. 
 
 Negaunee Iron Co. vs. Iron Cliff Co., 134 M., 264. 
 
 Sharp vs.. Sharp, 148 Mich., 278. 
 
 The word "grant" was held sufficient to create a 
 feoffment, grant, gift, lease, release, confirmation or 
 surrender in the time of Coke. 
 
 Coke Litt., 301 b. 
 
 It is and has been customary for time immemorial to 
 insert words of limitation in the premises after the 
 operative words, that is, deeds usually read grant, bar- 
 gain, sell, etc., to the parties of the second part, his 
 heirs and assigns. 
 
 The word " heirs" is a word of limitation and in ef- 
 fect means that an estate in fee has been conveyed.
 
 28 DEEDS. 
 
 Under the common law and I believe in all the states 
 this rule prevails, except where modified by statute. At 
 common law and in many of the states this rule was in- 
 flexible. No matter what words were used or how well 
 the intention may have been expressed to create a fee 
 simple, if the word " heirs" was not used in connection 
 with the grant to the grantee somewhere in the deed, 
 only a life estate passed. 
 
 In other states word.s equivalent to the word heirs 
 have been held to pass a fee. 
 
 In Michigan since Sept. 10, 1881, a deed conveys all 
 the estate the grantor has unless there is a contrary in- 
 tention, reservation or limitation. 
 
 9016 Comp. Laws, Mich., 1897. 
 
 e A ifo*& /?/j~ 7f 
 
 DESCEIPTION. 
 
 The purpose of the description in a deed is to indicate 
 what particular land the grantor intends to convey to 
 the grantee and afford means for its identification. 
 
 In England and in the older states of this country 
 there was no general survey and lands were generally 
 described by reference to the name by which it was com- 
 monly known, as "The Manor of Dale," or a part of 
 some particular tract or by courses and distances from 
 a particular starting point identified by some well 
 known physical land mark or by metes and bounds. 
 
 After the federal union was established in our coun- 
 try and the territorial limits of the original states were 
 fixed, the remaining lands were considered the property
 
 DESCRIPTION. 29 
 
 of the United States and known as the public domain 
 and included all the lands north of the Ohio and west of 
 the Mississippi Rivers not owned by individuals prior 
 to the cession to the United States and some portions 
 of Florida, Alabama, Mississippi and Tennessee. 
 
 The public domain was looked upon as a source of 
 revenue and under the laws enacted by Congress was 
 opened to private entry to cash purchasers, homestead 
 entries and entries under military warrants, the latter 
 being private grants or rewards for military service or 
 financial aid rendered in the war for independence. 
 
 Some systematic method of describing the lands was 
 necessary and the present system of surveying, which 
 I believe was invented by Gen. Eufus Putnam, a Revolu- 
 tionary officer, was introduced in 1785 or 1786. 
 
 This system established a series of arbitrary lines 
 running north and south termed Principal Meridians, 
 with accompanying east and west lines termed Base 
 Lines. The former are fixed with reference to certain 
 Meridians of Longitude established or located through 
 and by astronomical observation and the latter estab- 
 lished in the same manner with reference to Parallels 
 of Latitude. 
 
 There are twenty-four Principal Meridians in this 
 country, each having an accompanying Base Line. The 
 meridian upon which the Michigan survey is based is 
 known as the Michigan Meridian and is in longitude 84 
 degrees 19 minutes, 9 seconds west from Greenwich, 
 running through the state near Lansing; the accom- 
 panying Base Line is the line between Wayne and Oak- 
 land Counties. The surveys in some of the states are
 
 30 DEEDS. 
 
 governed by more than one meridian. Lines were run 
 parallel to the meridians and base lines six miles apart 
 dividing the territory into townships. The townships 
 are designated as north or south of the base lines and 
 east or west of the meridian. As, for example, Town 6 
 North Range 6 East, means a township the southerly 
 line of which is 30 miles north of the base line and 
 whose westerly line is thirty miles east of the meridian. 
 Towns were again divided into squares of one mile each 
 by running similar lines which were called sections, and 
 the sections again cut by lines running north and south 
 and east and west dividing them into substantially equal 
 quarters, known as Quarter Sections. The sections were 
 numbered from one to thirty-six, always starting in the 
 northeast corner of the town and numbering to the left 
 until the town line was reached, dropping down to the 
 next tier of sections and numbering to the east until the 
 east town line was again reached and continuing the 
 process until each section was numbered. 
 
 In the government survey, stakes or land marks were 
 set at all town and section corners and at all the start- 
 ing points of lines cutting the sections into quarters. 
 The stakes at the township corner are termed "Town 
 Corner"; those at the section corners termed "Section 
 Corners." The stakes at the commencement and ter- 
 mination of the lines dividing the section into quarters 
 are termed "Quarter Posts," the lines dividing the sec- 
 tions are termed "Quarter Lines." We speak of the 
 west quarter post of a section meaning the stake set in 
 the west line of the section midway between its north- 
 west and southwest corner and refer to the other quar- 
 ter posts by a similar designation, and the lines con- 
 necting the quarter posts as the north and south quarter 
 lines and east and west quarter lines.
 
 DESIGNATION OF ADJACENT LAND. 31 
 
 In the actual disposition of the land the quarter sec- 
 tions were again divided by two intersecting lines divid- 
 ing them into four quarters. These lines are often 
 termed "eighth lines." The quarters of the sections 
 are referred to as N. E. 1/4 or N. W. ^4, etc., with refer- 
 ence to their location in the section and the quarters of 
 the original quarter sections in like manner as N. W. 
 14 of S. W. 14, etc. 
 
 No stakes were set in the original survey of the sec- 
 tions, except the four corners and four quarter posts. 
 
 The standard section corner is a post four feet long, 
 four inches square, set two feet in the ground. 
 
 The standard quarter post is three feet long, three 
 inches square, set one foot in the ground. 
 
 The field notes of the survey gave the course and dis- 
 tances from the section corners to adjacent land marks, 
 usually trees in this locality, that the corner might be 
 located if the post was destroyed. 
 
 Owing to the convergence of meridians the section 
 lines are not exactly parallel and the sections are not 
 all of equal area. This is all taken care of in the sec- 
 tions in the north and west tiers in each town and they 
 will be found short in many instances. 
 
 Where the land surveyed bordered upon the Great 
 Lakes and larger inland lakes these designations were 
 usually abandoned in designating the adjacent land, and 
 the land fronting upon the water designated as a "lot," 
 as Lot 2, Section 34, T. 3. N. B. 14 E. These lots are 
 often referred to as "Government Lots."
 
 32 DEEDS. 
 
 There is another series of posts and lines established 
 by the original survey known as meander lines and 
 meander posts. When the land bordered upon water, a 
 line was often run substantially parallel with the wat- 
 er's edge, though not coincident with the water's edge, 
 and posts were set at the angles in this line. These 
 lines were not boundaries and were run for the purpose 
 of determining the area of the land in the particular 
 tract. 
 
 When the subdivisions of this government survey are 
 divided into smaller parcels the boundaries are meas 
 ured and their directions given with reference to the 
 points of the magnetic compass, resulting in a descrip- 
 tion by "courses and distances." 
 
 The course of a boundary line is determined by meas- 
 uring the angle made by the intersection of such line 
 with a line running due north or south, the latter being 
 found at any desired point with a compass. 
 
 To illustrate, suppose you placed a compass over the 
 center line of Woodward Avenue and were looking to- 
 ward Pontiac, the north end of the needle would point 
 to the right or east of the line of Woodward Avenue. 
 If you count the degrees upon the dial of the compass 
 from the north point of the compass to a line coincident 
 with Woodward Avenue, you would go west from the 
 needle point 26 and the course of Woodward avenue if 
 following it toward Pontiac would be described as 
 North 26 West. 
 
 If you turn about face and repeat the operation the 
 south point of the needle would be to the west of the 
 line of Woodward and counting the degrees from it to
 
 PRIVATE CLAIMS. 33 
 
 the line coincident with Woodward you would go to 
 the east 26 and the course of the avenue going toward 
 the river would be described as South 26 East. 
 
 An engineer surveying the block between Woodward, 
 Elizabeth, Witherell and Adams Ave., starting at Wood- 
 ward and Adams Aves., going toward Pontiac, would 
 go north 26 W. to Elizabeth Street, turning a right 
 angle toward the east; following Elizabeth Street his 
 course would be N. 64 East ; turning south down With- 
 erell Sreet his course would be S. 26 E. ; turning west 
 along Adams Ave. his course would be S. 64 W. 
 
 There is still another subdivision of lands estab- 
 lished by the government surveyors in this locality 
 termed Private Claims. This term is used to distin- 
 guish the land from the public domain. The American 
 government came into possession of the lands known 
 as the Northwest Territory by cession from Virginia 
 and other of the original colonies. The deed of cession 
 from Virginia was conditioned that the rights of cer- 
 tain inhabitants in possession be recognized by the Fed- 
 eral Government. Acts of Congress were passed for 
 the settlement and adjustment of the land titles. The 
 government recognized the claim of title to land by 
 those who had been in actual possession and made im- 
 provements during the French and English rule, and 
 were in actual possession July 1, 1796, but required 
 each claim to be proved before a tribunal, which in 
 Michigan was known as the Land Board, consisting of 
 the Register and Receiver of the Land Office and the 
 Secretary of the Northwest Territory, and when so 
 proved that the land be surveyed by the government 
 surveyor and a plat of the survey returned to the land
 
 34 DEEDS 
 
 office. The claim was then confirmed by a patent issued 
 by the general government. 
 
 The patents of Private Claims are technically con- 
 firmations, not grants. They do not convey title. The 
 United States never had title. 
 
 Lang dean vs. Hanes, 21 Wai. (U. $.), 521. 
 
 The early French and English settlers occupied only 
 lands fronting upon the rivers, lakes and streams, the 
 water being the only highway, and they were in posses- 
 sion of narrow strips undoubtedly that their habitations 
 might be close together to afford both society and pro- 
 tection against the Indians. 
 
 Under the land laws the claimants were permitted to 
 hold the frontage on the water of which they had pos- 
 session, with a depth of 40 arpents, but not to exceed 
 640 acres. Later another Act of Congress was passed 
 permitting the claimant to extend back an additional 
 forty arpents if their original holding did not exceed 
 640 acres. From these acts we derive the term front 
 and rear concessions. 
 
 The rear line of these claims in the City of Detroit 
 is Me Graw Avenue on the west side and Harper Avenue 
 on the east side. 
 
 Private Claims will be found in this vicinity upon 
 the Great Lakes and connecting waters and upon most 
 of the nearby rivers, as the Huron and Clinton, and 
 about Mackinaw and the Soo. 
 
 The arpent was a French acre and as used in 
 this locality was equal to about 192.24 feet. Remember
 
 LOCAL DESCBIPTION. 35 
 
 this distance, as you will find it necessary to convert this 
 measure into English chains and feet from time to time. 
 You will find an extended report concerning it made by 
 Judge Woodward to the Washington authorities. 
 
 Vol. XIV., Am. St. Papers, p. 264. 
 
 The arpent was the Royal Paris Acre and it is inter- 
 esting to note that the so-called English acre, being a 
 little over 208.71 feet, is also a French measure, being 
 the Norman acre, which was introduced into England 
 after the Conquest. 
 
 We also have tracts of land locally known as the 
 Governor and Judges' Plan, Park Lots, the Ten Thou- 
 sand Acre Tract, the Military Reserve (Reservation), 
 the Ship Yard Tract and the Arsenal Grounds. 
 
 Their descriptions are historical and are only of local 
 interest. 
 
 The original City of Detroit was destroyed by fire in 
 1805. The old lines and land marks were obliterated. 
 Congress authorized the Governor and Judges to lay 
 out a new town and 10,000 acres additional and to 
 grant every inhabitant a lot of 5,000 square feet in area 
 in the town, using the 10,000 acres to supply deficien- 
 cies, and to sell the surplus and use the proceeds to 
 construct a court house and a jail. Following this au- 
 thority the Governor and Judges plan was laid out ap- 
 proximately between the river, Adams Avenue, Cass 
 Avenue and Randolph Street. The land either side of 
 Woodward between the Private Claims known as the 
 Cass or Macomb Farm and the Brush or Askin Farm 
 and the Boulevard was cut into lots and a rectangular 
 tract containing some 9,000 odd acres laid out north of 
 the Boulevard. The land along Woodward Avenue from
 
 36 DEEDS. 
 
 Adams Avenue to the Boulevard is termed "Park Lots," 
 and the tract above the Boulevard the Ten Thousand 
 Acre Tract, though the Park Lots are, strictly speaking, 
 a part of the 10,000 acres authorized to be laid out un- 
 der the legislation mentioned. 
 
 The Shipyard Tract lies on the River Rouge, the Mili- 
 tary Reservation between Griswold Street, Cass Ave- 
 nue, Michigan Avenue and the river, and the Arsenal 
 Ground at Dearborn. 
 
 In actual conveyancing it will be well to always use 
 descriptions that will trace back to the survey and al- 
 ways avoid local landmarks which are in no way con- 
 nected with the survey. The latter may disappear and 
 cannot be connected with the record or paper title to 
 the land except through a survey. 
 
 There is a practice, more or less common, of describ- 
 ing land as a piece of land on a certain section or claim 
 bounded north by the lands of one owner and upon the 
 other sides by the lands of other owners. When it be- 
 comes necessary to examine the title to lands thus de- 
 scribed, the title to the surrounding lands must also be 
 examined in order to determine with any certainty the 
 land included in the description. This has been quite 
 correctly termed the "lazy man's description," and it 
 may be added that it is no lazy man's task to follow it. 
 
 The general rule is that the description of the land 
 in the conveyance must be certain and definite; that is, 
 the language used must point out the means of identify- 
 ing and distinguishing the particular land from all 
 other lands. 
 
 Extrinsic evidence may be resorted to in applying the
 
 COUKSES AND DISTANCES. 37 
 
 description to the ground but not to vary or supply the 
 description. 
 
 Rix vs. Smith, 145 Mich., 203. 
 
 If from the language used, aided by local inquiries 
 and other records, surveys or documents referred to in 
 the deed, the land can be located it is sufficient. 
 
 Persinger vs. Jubb, 52 Mich., 304. 
 
 By local inquiries we have reference to local physical 
 landmarks, such as highways, water courses and other 
 natural and artificial monuments, or to a tract of land 
 generally known in a particular locality by some par- 
 ticular name. 
 
 By other records we mean plats, surveys and other 
 conveyances or records referred to in the deed. 
 
 Uncertainty arises in several ways. In conveying a 
 portion of a large tract, frequently there is no manifes- 
 tation of what part of the tract is intended. For exam- 
 ple: A part of out lot 2, L. Beaubien Farm, containing 
 one acre, would be indefinite, while the north one acre 
 of Lot 2, L. Beaubien Farm would be definite and would 
 mean a rectangular piece off the north end of the lot 
 having an area of one acre. 
 
 Descriptions by courses and distances are indefinite 
 if the starting point is not fixed with certainty. If, how- 
 ever, the starting point is indefinite and later on in the 
 description a monument is described, the description 
 will be certain. 
 
 Taber vs. Shattuck, 55 Mich., 371-373.
 
 38 DEEDS. 
 
 For instance, a description commencing at a stake in 
 the east line of Woodward Avenue, run thence N. 26* 
 W. 100 feet; thence N. 64 E. 200 ft.; thence S. 26 E. 
 100 ft.; thence S. 64 W. 200 ft. to beginning, would be 
 indefinite. If the description reads in the same way and 
 had the words "to the N. W. corner of Park Lot 57" 
 inserted after the phrase N. 26 W. 100 ft., the descrip- 
 tion would be definite. The designated corner of the 
 Park Lot could be taken as a starting point and the 
 land located. 
 
 General descriptions have been held sufficient, as all 
 the grantor's land in a certain town, county and state, 
 or the descriptive name of a tract by which it is gener- 
 ally known, as * * Schoolcraf t Store property. ' ' 
 
 Francis vs. Barry, 69 Mich., 31. 
 
 The failure to designate the state and county where 
 lands are described as section, town and range is not 
 fatal to a description where possession of the land in- 
 tended to be conveyed was taken under it. 
 
 Russell vs. Sweezne, 22 Mich., 235. 
 Marr vs. Benedict, 98 Mich., 260. 
 
 A grant of all the land to which a person has any 
 right, title or interest has been held sufficiently definite. 
 
 Austin vs. Dolb, 101 Mich., 292, and cases cited. 
 Huron Land Co. vs. Robarge, 128 Mich., 686. 
 
 CONSTRUCTION AND INTERPRETATION. 
 
 There are certain rules for the construction of deeds, 
 viz:
 
 INTENT OF PABTEES. 39 
 
 1. The object of construing a deed is to ascertain the 
 intention of the parties. 
 
 M on fort vs. Stevens, 68 Mich., 61. 
 
 2. They are to be construed with reference to the 
 facts which existed at the time of delivery. 
 
 Me Connell vs. Rathbun, 46 Mich., 303. 
 Hoffman vs. Port Huron, 102 Mich., 437. 
 
 3. The acts of the parties immediately after execu- 
 tion showing their understanding are to be considered. 
 
 Monfort vs. Stevens, 68 Mich., 61. 
 
 4. A deed must be so construed, if possible, that no 
 part shall be rejected. 
 
 Jones vs. Pashby, 62 Mich., 622. 
 
 5. When a general description is followed by a more 
 particular description the latter expresses the intents 
 and controls. 
 
 Nichols vs. Furniture Co., 100 Mich., 230. 
 
 6. Lands, marks and monuments will control courses 
 and distances. 
 
 Howell vs. Merrill, 30 Mich., 382. 
 Diehl vs. Zanger, 39 Mich., 601. 
 
 7. Permanent natural monuments control artificial 
 monuments. 
 
 8. Where a general description is followed by a 
 clause stating the intent of the parties as to the prem- 
 ises conveyed such clause will control the general de- 
 scription. 
 
 Flummer vs. Gould, 92 Mich., 1.
 
 40 DEEDS. 
 
 9. The language of the deed is to be taken most 
 strongly against the grantor. 
 
 Bolio vs. Marvin, 130 Mich., 82. 
 
 These rules are only an aid to construction. They are 
 not inflexible. The true intent of the parties gathered 
 from the whole instrument, considered in connection 
 with the facts existing at the time of its execution and 
 delivery and the acts of the parties giving it a prac- 
 tical construction, will, if the intention thus determined 
 be lawful, overcome all arbitrary rules. 
 
 Negaunee Iron Co. vs. Iron Cliffs Co., 134 Mich., 264. 
 
 In seeking the intent of the parties Judge Cooley con- 
 strued the word "to" when used in the phrase " run- 
 ning to the rear line of the claim," as running " to ward" 
 the rear line. 
 
 Moran vs. Legatte, 54 Mich., 83. 
 
 What constitutes a boundary is usually a question 
 of fact. 
 
 Jones vs. Pashby, 62 Mich., 622. 
 
 Apparently opposed to some of the foregoing rules is 
 the rule expressed by the maxim, "Falsa demonstratio 
 non nocet," i. e., "A false description does not vitiate 
 when a description of the essential matter remains." 
 Tuthill vs. Kratz, 163 Midi., 618. 
 Anderson vs. Boughman, 7 Mich., 69. 
 
 Where a description refers to a map or plat, such 
 map or plat is to be considered as much a part of the 
 deed as if fully incorporated in the instrument. 
 
 Nichols vs. New England Furniture Co., 100 
 Mich., 230.
 
 INCLUSIVE IN THE GRANT. 41 
 
 A reference to another deed or contract has a like 
 effect. 
 
 The fact that the plat is not acknowledged or has not 
 been recorded will not defeat the grant, though the deed 
 recites that it is of record. 
 
 Johnstone vs. Scott, 11 Mich., 232. 
 Wiley vs. Lovely, 46 Mich., 83. 
 
 I have endeavored to briefly state the technical rules 
 as to the interpretation of deeds and their essential for- 
 mal parts, but it may be observed that the present tend- 
 ency of the courts is to look to these rules only as a 
 guide in an honest endeavor to arrive at the true inten- 
 tion of the parties, and to administer justice in the indi- 
 vidual case. 
 
 This condition can be largely attributed to the lack 
 of skill and want of knowledge on the part of those as- 
 suming the preparation of conveyances. 
 
 WHAT IS INCLUDED IN THE DESCRIPTION. 
 
 Grants of land abutting upon a street or highway gen- 
 erally carry title to the center of the highway in the 
 absence of a reservation. 
 
 Where a land owner lays out a street or highway 
 upon one side of his land and grants a parcel adjoin- 
 ing, the grant carries the entire street. 
 
 Haberman vs. Baker, 28 N. E., 370 (N. Y.). 
 
 There is no such presumption in a conveyance by a 
 city where the city holds the fee of a street. 
 
 Graham vs. Stern, 61 N. E., 691 (N. Y.).
 
 42 DEEDS. 
 
 Where the grantor has rights beyond the margin of 
 the street this rule does not apply. 
 
 Banks vs. Ogden, 2 Wall., 57. 
 
 Where land is described as bordering upon water, 
 such as a lake or stream, the rule is that the grant car- 
 ries all the title the grantor has to the submerged land. 
 
 In Michigan the courts hold that the title to the bed 
 of the Great Lakes is in the State in trust for the peo- 
 ple. 
 
 Ainsworth vs. Hunting Club, 159 Mich., 61. 
 State vs. Venice American Land Co., 160 Mich., 
 680. 
 
 Adverse possession will not run against the state. 
 Supra. 
 
 In Michigan the riparian owner of land bordering 
 upon a river has title to the middle of the main channel 
 or thread of the stream whether navigable or not navi- 
 gable. 
 
 Hall vs. Alford, 114 Mich., 165. 
 Lorman vs. Benson, 8 Mich., 18. 
 Ryan vs. Brown, 18 Mich., 196. 
 
 This rule I believe obtains in all the states as to the 
 non-navigable streams. 
 
 As to navigable streams some states hold the same 
 rule, others hold that private ownership extends to low 
 water mark and others that it extends to high water 
 mark. 
 
 The rule governing private ownership in the beds of
 
 ASSIGNMENT OF EASEMENT. 43 
 
 small inland lakes is not settled nor uniform in the 
 states nor in Michigan. The Court has enunciated the 
 dictum : 
 
 "No fixed rule ever has been or ever can be 
 laid down for the division of the territory cov- 
 ered by inland lakes." 
 
 The section line rule is laid down in 
 
 Clute vs. Fisher, 65 Mich., 48, 
 but repudiated in 
 
 Grand Rapids Ice Co., 102 Mich., 227. 
 
 The rules governing riparian rights seem to have 
 been observed in 
 
 Lincoln vs. Davis, 53 Mich., 390. 
 
 Grand Rapids Ice Co. vs. Ice Co., 102 Mich., 227. 
 
 The rule that private ownership extends to the center 
 seems to have prevailed in 
 
 Weber vs. Pere Marquette Boom Co., 62 Mich., 
 626. 
 
 Private ownership was recognized and the dictum 
 stated advanced in 
 
 Pittsburg Iron Co. vs. Lake Superior Iron Co., 
 118 Mich., 109. 
 
 Easements appurtenant to the land will pass without 
 specific mention. 
 
 Walz vs. Walz, 101 Mich., 167. 
 
 Easements which are not appurtenant are unassign- 
 able and will not pass if they are mentioned. 
 
 s 
 
 n
 
 44 DEEDS. 
 
 Riparian rights pass with the deed without specific 
 mention, unless they are specifically reserved. 
 
 Grand Rapids Ice & Coal Co. vs. South Grand 
 Rapids Ice & Coal Co., 102 Mich., 227. 
 
 Riparian rights in the submerged lands of streams 
 are bounded by lines running at right angles to the 
 thread of the stream. 
 
 A. N. Campau Realty Co. vs. Detroit, 102 Mich., 243. 
 
 This rule does not apply to the Great Lakes. 
 
 Blodgett & Davis Lumber Co. vs. Peters, 87 
 Mich., 498. 
 
 Meander lines are not ordinarily boundaries. 
 
 Twogood vs. Hoyt, 42 Mich., 609. 
 Palmer vs. Dodd, 64 Mich., 474. 
 Clute vs. Fisher, 65 Mich., 48. 
 Arnold vs. Boelchel. 
 
 Where a wife joins in the execution of a deed with 
 her husband and individually owns a part of the land 
 described, such deed will convey her entire interest, both 
 her dower and her fee, or other interest, without recital 
 of any kind. 
 
 Eewmiller vs. Hathaway, 60 Mich., 391-4. 
 
 The fact that she does not join in the covenants does 
 not change the rule. 
 
 Clow vs. Plummer, 85 Mich., 550-552-553.
 
 HABENDUM. 45 
 
 HABENDUM. 
 
 At common law the habendum contained the limita- 
 tions of the estate granted, that is, it determined the 
 duration, whether in fee for life or in tail. 
 
 In modern deeds the words of limitation are usually 
 contained in the premises following the operative 
 words, but the habendum is retained and amounts to a 
 repetition of the limitations. The result is that the 
 habendum only comes in question when it conflicts with 
 the premises. 
 
 Michigan has adhered to the common law rule that 
 the estate limited in the premises cannot be abridged by 
 the habendum. 
 
 Smith vs. Smith, 71 Mich., 633. 
 
 But in following the rule that the intention of the 
 parties is to be determined from the whole instrument 
 and carried out, the Court has held that a repugnant 
 habendum will control the granting clause in the prem- 
 ises when such is the intention of the parties. 
 
 Wilson vs. Ferry, 130 Mich., 73. 
 
 As has been stated, the words of inheritance " heirs" 
 is in the absence of statute essential to create an estate 
 in fee. There are exceptions to this rule : 
 
 (a) When the grant is made to a trustee and 
 an estate in fee is necessary for the purposes of 
 the trust, a fee will pass without words of inheri- 
 tance. 
 
 (b) The word * 'heirs" is not appropriate in a 
 grant to a corporation, and while the word "sue-
 
 46 DEEDS. 
 
 cessors" is usually substituted, it is not essen- 
 tial to pass a fee. 
 Delhi School Dist. vs. Everett, 52 Mich., 314, 
 
 (c) Words of inheritance are not essential to 
 an executory contract to convey. 
 
 (d) I believe words of inheritance were never 
 essential to a devise in a will. 
 
 TENENDUM. 
 
 The tenendum was formerly used to define the kind 
 of tenure under which and of whom, whether the lord 
 or the grantor, the land was held and was coupled with 
 the habendum. All that remains of it in modern con- 
 veyances is the words, "To Have and to Hold," which 
 apply to the habendum as well. 
 
 EEDDENDUM. 
 
 The reddendum at common law contained the reserva- 
 tion of something new and distinct from the land, as a 
 rent or service. 
 
 In modern conveyances such reservations are gener- 
 ally incident to conditions. 
 
 Often in describing lands in modern deeds a general 
 description is used with an exception of a certain spe- 
 cific part of the lands, which is termed a reservation. 
 This is a technical error. Such as right or interest is 
 an exception. It is a part of the existing thing granted. 
 A reservation refers to something which had no exis- 
 tence in connection with the property in question until 
 created by the deed.
 
 REDDESTDUM. 47 
 
 This distinction is best illustrated by a grant of a lot 
 excepting a strip of land twenty feet in width along the 
 west side thereof. The grantor would own the fee of 
 the 20 foot strip, could sell it or build upon it. It is a 
 part of the lot which had an existence prior to the mak- 
 ing of the deed and comes within the technical definition 
 of an exception. 
 
 Suppose a grant of a lot was made reserving a right- 
 of-way over the west 20 feet. This would create an 
 easement which had no previous existence and be a 
 technical reservation. This distinction was important 
 because a reservation except when in the nature of an 
 easement appurtenant to other lands, unless reserved to 
 the grantor and his heirs, terminated with the grantor *s 
 life. 
 
 Negaunee Iron Co. vs. Iron Cliff Co., 134 Mich., 
 264. 
 
 Reservations of rights-of-way are now regarded as 
 appurtenances and pass with grants of the land. 
 Lothrop vs. Eisner, 93 Mich., 599. 
 
 If excepted the title would not pass by the grant. 
 
 There has been so much confusion in the use of the 
 technical words, excepting and reserving, that they are 
 now held synonymous. 
 
 Negaunee Iron Co. vs. Iron Cliff Co., 134 Mich., 
 280. 
 
 Generally a reservation in favor of a stranger to the 
 deed is void, but the courts have at times avoided this 
 principle in carrying out the intentions of the parties. 
 Martin vs. Clark, 102 Mich., 267.
 
 48 DEEDS. 
 
 Reservations repugnant to the grant are generally 
 void. 
 
 The words "excepting" or "saving and excepting" 
 are the operative words of an exception and the "re- 
 serving" are the appropriate words for the creation of 
 this right. It will be wise to use one or the other and 
 not couple them together in preparing conveyances and 
 add the words of inheritance to all reservations if they 
 are designed to be perpetual, though, as stated, the mod- 
 ern doctrine would seem to be that the intention of the 
 parties prevail and words of inheritance are not neces- 
 sary to a perpetual reservation or exception. 
 
 Lothrop vs. Eisner, 93 Mich., 599. 
 Negaunee Iron Co. vs. Iron Cliff Co., 134 Mich., 
 264. 
 
 Whether the words "saving and reserving" reserve 
 title to land or only an easement over land is to be de- 
 termined from the intention of the parties. 
 
 Bolio vs. Marion, 130 Mich., 82. 
 
 CONDITIONS. 
 
 The technical language of a condition is: "Provided 
 always this grant is upon condition." 
 
 Conditions are divided into conditions precedent and 
 subsequent. 
 
 Conditions precedent must be fulfilled before the 
 estate will vest.
 
 CONDITIONS. 49 
 
 Conditions subsequent are such as affect or defeat an 
 estate already vested. 
 
 The law favors present vesting of estates, but the 
 manifest intention of the grantor must be observed. 
 
 Johnson vs. Warren, 74 Mich., 491. 
 
 The courts do not look upon conditions with favor. 
 The court of equity generally refuses to enforce them. 
 
 Barrie vs. Smith, 47 Mich., 130. 
 
 The courts are inclined to construe conditions as cove- 
 nants and to construe conditions strictly against for- 
 feitures. 
 
 Barrie vs. Smith, 58 Mich., 314-318. 
 
 When an estate is granted upon condition, and upon 
 the failure to perform, or in case of breach, there is a 
 grant over to a third person, the interest of the third 
 person is termed a conditional limitation. 
 
 The most common example of the use of conditions 
 are in deed from parent to child on condition of support 
 and maintenance. Restrictions upon the use of prop- 
 erty are often framed as conditions, but more frequently 
 as covenants. 
 
 Conditions requiring illegal acts are void. 
 Conrad vs. Long, 33 Mich., 78. 
 
 Conditions restraining alienation generally are held 
 void as repugnant to the grant. 
 
 Mandelbaum vs. Me Donnell, 29 Mich., 78.
 
 50 DEEDS. 
 
 We have a general statutory provision to the effect 
 that when conditions are merely nominal and evince no 
 intention of actual and substantial benefit to the party 
 to whom or in whose favor they are to be performed 
 they may be disregarded. 
 
 8828 Comp Laws, 1897. 
 
 There is another statutory restraint. 
 
 The absolute power of alienation shall not be sus- 
 pended by any condition or limitation whatever for a 
 longer period than the continuance of two lives in being 
 at the creation of the estate, except in the single instance 
 menitoned in the next section. 
 
 $8797 Comp. Laws, 1897. 
 C. IfaU . 'f T- // 5 33 
 
 A contingent remainder in fee may be created on a 
 prior remainder in fee, to take effect in event the per- 
 sons to whom the first remainder is limited shall die 
 under the age of twenty-one years, or upon any other 
 contingency by which the estate of such persons may 
 be determined before they attain their full age. 
 
 8798 Comjp. Laws, 1897. 
 . ftu<K . / f ,t-_ f 
 
 The sections referred to are found in the chapter of 
 the statutes entitled "Estates in Real Property." This 
 chapter, together with the succeeding ones, entitled 
 "Uses and Trusts," and "Powers," were adopted in 
 Michigan in the revision of the statutes of 1846, which 
 went into effect March 1, 1847. These chapters were 
 borrowed from the State of New York, with the con- 
 struction placed upon them by the New York courts, and 
 the New York act was, I believe, a modification of the 
 English Thellusson act.
 
 PERPETUITIES. 51 
 
 These chapters codify the law upon Estates in Real 
 Property, Uses and Trusts, and Powers, and expressly 
 abolish the common law trusts and powers and prohibit 
 many an estate valid at common law. 
 
 Wisconsin has copied the Michigan statute and Min- 
 nesota has copied Wisconsin in a modified form. 
 
 The three chapters may be termed the ''Conveyanc- 
 ers' Constitution," as many a will and deed will be a 
 legal disaster when the statutory rules are applied. 
 
 The subject of Suspension of Alienation is covered 
 by a text book written by Stewart Chaplin, a New York 
 writer, based upon the New York statute, which is the 
 only authority upon the subject aside from decided 
 
 cases. 
 
 New York, Michigan, Wisconsin and Minnesota have 
 similar statutes as has England in the Thellusson act. 
 The statutes in New York apply to both real and per- 
 sonal property, and in the other states mentioned to 
 real property only, and abrogate the common law rule 
 against perpetuities so far as real property is con- 
 cerned, and as to both real and personal property in 
 New York. 
 
 Wisconsin has held that the statute abrogates the 
 rule against perpetuities and that there is no limitation 
 upon tying up personal property in absolute perpetuity. 
 
 The decisions of other states are inapplicable. 
 
 Alienation is suspended when there are no persons in 
 being by whom an absolute fee in possession can be 
 conveyed. 
 
 8796 Comp. Laws, 1897. 
 .?k<ti\. /IS 3
 
 52 DEEDS. 
 
 This subject is closely connected with the subject of 
 Uses and Trusts and will be given further consideration 
 when that is reached. 
 
 COVENANTS. 
 
 So far as definitions go, a covenant may be said to be 
 synonymous with a contract. 
 
 As used in deeds, a covenant is usually an agreement 
 or undertaking as to the truth of certain facts or to do 
 or not to do some particular thing. 
 
 A covenant is not in any manner essential to a deed 
 so far as the effect of the instrument to pass a present 
 estate in the lands is concerned. Though, as has been 
 stated, a deed with the usual covenants, generally 
 termed a warranty deed, passes an after acquired title 
 and the purchaser under a deed without covenants prior 
 to the statute of 1915 could not claim the position of a 
 bona fide purchaser for value under the recording laws. 
 
 The legal effect of a deed with covenants to pass an 
 after acquired title cannot be varied by parol evidence. 
 
 Dye vs. Thompson, 126 Mich., 597. 
 
 A quit claim deed can never pass a subsequently ac- 
 quired title not owned in equity at date of delivery. 
 
 Frost vs. Missionary Society, 56 Mich., 49. 
 Fay vs. Wood, 65 Mich., 390. 
 
 The general use of covenants for title probably arose 
 upon the passage of the statute of uses.
 
 COVENANTS. 53 
 
 A warranty was an incident of every feudal grant 
 and the obligation to warrant and defend was generally 
 fulfilled with the mailed fist and the lance, which were 
 the original source of title to land. 
 
 Under the Michigan Statutes no covenant shall be im- 
 plied in any conveyance whether the instrument con- 
 tains covenants or not. 
 
 8959, Comp. Laws. 
 
 No particular form or language is essential to create 
 a covenant. Any words evidencing an intention to be 
 bound to do or not to do a particular thing are suffi- 
 cient. 
 
 Johnson vs. Eollenworth, 48 Mich., 140. 
 
 Several covenants may be blended into a single sen 
 tence. 
 
 Supra. 
 
 A recital in a deed may operate as a covenant. 
 
 Deeds as executed in modern times are usually signed 
 only by the grantors. However, covenants contained 
 in a deed to be performed by the grantee are usually 
 binding and enf orcible without his signature, the grant- 
 ee's acceptance of such a deed and enjoyment of the 
 estate granted being sufficient evidence of his assent to 
 the covenant. 
 
 Crawford vs. Edwards, 33 Mich., 354. 
 
 The above rule is criticised in many of the states, but 
 prevails in New York, Michigan and New Jersey.
 
 54 DEEDS. 
 
 The most common illustration of this principle is the 
 grant of a parcel of land with a statement in the deed 
 that it is subject to a mortgage described which the 
 grantee assumes and agrees to pay. 
 
 Crawford vs. Edwards, 33 Mich., 354. 
 
 COVENANTS FOE TITLE. 
 
 The usual covenants for title are : 
 
 1. The covenant of seizen. 
 
 2. The covenant of good right to convey. 
 
 3. The covenant against incumbrance. 
 
 4. The covenant of quit enjoyment. 
 
 5. The covenant of warranty. 
 
 6. The covenant of further assurances. 
 
 The effect of the covenants is always limited to the 
 land described and to the estate conveyed. 
 
 COVENANTS OF SEIZIN. 
 
 This covenant is usually in the words, "he is well 
 seized of the above granted premises in fee simple." 
 
 The effect and meaning of the covenants of seizin 
 vary in the different states. 
 
 In most of the states it is an undertaking that the 
 grantor has an indefeasible title in fee. 
 
 Peck vs. Houghtaling, 35 Mich., 126. 
 In other states mere possession under claim of title
 
 COVENANTS OF SEIZEN. 55 
 
 will satisfy it. This is the rule in Massachusetts, Maine 
 and Ohio. 
 
 The covenants of good right to convey is generally 
 looked upon as an incident of the covenant of seizin, 
 though it is sometimes used in conveyances under pow- 
 ers, and is rarely found in the forms of deeds in com- 
 mon use, except under the circumstance stated. 
 
 These covenants are broken at the date of delivery 
 of the deed if at all. 
 
 They do not run with the land. 
 
 This is a common technical expression and means that 
 if "A" conveys to "B" with the covenant of seizin and 
 of good right to convey, and "B" conveys to "C" with 
 like covenants, and "A" has no title, it follows that 
 ' ' B " would not derive title, nor would ' ' C. " * ' C ' ' could 
 sue "B" but he could not sue "A." The reason of this 
 is that the covenant of seizin by "A" being broken 
 when made becomes a right of action in favor of "B" 
 and was such a right separate and distinct from the 
 title to the land at the time "B" conveyed to "C" and 
 would not pass under the deed. 
 
 Under the doctrine that the covenants of seizin is an 
 assurance of title, a breach occurs : 
 
 1. Where there is an outstanding title in a 
 third person. 
 
 2. Where there is an outstanding interest in 
 a third person. 
 
 3. Where there is a want of title to buildings 
 or other things affixed to the land.
 
 56 DEEDS. 
 
 < The covenant of seizin being broken when made, the 
 statute of limitations runs against an action upon it 
 from the delivery of the deed. 
 
 COVENANT AGAINST ENCUMBRANCES. 
 
 The covenant against encumbrances usually follows 
 the covenant of seizin and is in the words, "they (re- 
 ferring to the above granted premises) are free and 
 clear from all encumbrances whatever." 
 
 This covenant, like the covenant of seizin, is broken 
 when made, it does not run with the land, and the stat- 
 ute runs against an action upon it from the delivery of 
 the deed. 
 
 Pease vs. Warner, 153 Mich., 140. 
 
 This covenant is broken by: 
 
 The existence of an unpaid mortgage. 
 
 The existence of an unpaid valid tax which 
 had become a lien at the date of delivery of the 
 deed. 
 
 A restriction upon the use of property. 
 
 An easement such as a right-of-way over the 
 premises. 
 
 An outstanding lease is an encumbrance. 
 
 Simon vs. Diamond Match Co., 159 Mich., 241. 
 
 In most states an outstanding right of dower is an 
 encumbrance. 
 
 Any right in the land vested in a third person which
 
 QUIET ENJOYMENT. 57 
 
 tends in any manner to diminish its value may generally 
 be said to be an encumbrance. 
 
 Simon vs. Diamond Match Co., 159 Mich., 241. 
 
 Encumbrances are of two kinds, those which affect 
 the title, such as money charges, mortgages, etc., and 
 those which affect the physical condition of the prop- 
 erty, such as a public road or an alley or right-of-way. 
 
 Knowledge of the existence of an encumbrance affect- 
 ing the title by the grantee prior to the conveyance is 
 no defense to an action upon the covenant. 
 
 Whether an action will lie upon the covenant against 
 encumbrances because of the existence of a burden or 
 servitude visible to all, such as a public highway or 
 alley, is an open question. The court of equity has re- 
 fused to enforce the covenant as to such a right. 
 
 Haldane vs. Sweet, 55 Mich., 196. 
 
 Probably the weight of authority is that such a right 
 is a breach of the covenant. Such is the rule in New 
 York, Alabama, Connecticut, Indiana, Maine, Missouri, 
 Mississippi, New Hampshire, Vermont and Virginia. 
 
 Huyck vs. Andrews, 20 N. E., 581. 
 
 The opposite rule prevails in Wisconsin, Georgia, 
 Iowa, and Pennsylvania. 
 
 COVENANT OF QUIET ENJOYMENT. 
 
 The covenant of quiet enjoyment is ordinarily found 
 in leases in the words, "may quietly and peacefully
 
 58 DEEDS. 
 
 have, hold and enjoy the premises for the term afore- 
 said. ' ' 
 
 In deeds it is generally regarded as synonymous with 
 the covenants of warranty. 
 
 COVENANT OF WARRANTY. 
 
 The covenant of warranty is generally expressed in 
 the words, "will warrant and defend the same (the 
 land granted) against all lawful claims whatsoever." 
 
 This covenant differs from the previous covenants in 
 that the grantee must either have been prevented from 
 taking possession, or, having taken possession, must 
 have evicted to constitute a breach. 
 
 Mere existence of an outstanding title will not amount 
 to a breach of the covenant of warranty. 
 
 Rights which amount to breaches of the covenant 
 against encumbrances, if an eviction occurs through 
 them, are breaches of the covenant of warranty. 
 
 The eviction must be under a lawful, paramount or 
 superior title. 
 
 A voluntary surrender of possession of the land by 
 the covenantee, either before or after judgment, is an 
 eviction. 
 
 Should the covenantee voluntarily surrender posses- 
 sion, the burden of proving the validity of the para- 
 mount title would be upon him in an action of covenant.
 
 WARRANTY. 59 
 
 The practice is to await the institution of suit and 
 give notice to the grantor to defend the action. If such 
 notice is given, the warrantor is bound by the judgment 
 in an action by the covenantee. 
 
 Mason vs. Kellogg, 38 Mich., 132. 
 
 The covenants of warranty and quiet enjoyment run 
 with the land ; that is, an evicted purchaser may sue any 
 prior grantor whose covenant was made when the para- 
 mount title existed. 
 
 The covenant of warranty running with the land 
 inures to the benefit of a purchaser under a quit claim 
 deed or on foreclosure of a mortgage. 
 
 That is, the purchaser under a quit claim deed can 
 sue the earlier grantors for breach of covenant or war- 
 ranty. That is, though he has no action against his im- 
 mediate grantor, he may sue the grantor of the person 
 from whom he purchased for breach of such covenants 
 as run with the land if the paramount title existed prior 
 to his deed. This is merely the application of the doc- 
 trine of a covenant running with the land. 
 
 Covenants apply only to the land and the interest 
 granted. 
 
 A deed to "all the right, title and interest of a per- 
 son in a piece of land," followed by full covenants, 
 amounts to a quit claim deed, if the grantors had no 
 title. The covenants attach only to the estate conveyed. 
 Such a deed conveys whatever interest the grantor had. 
 
 The covenant of further assurances is not in common 
 use. It was an agreement to execute such additional
 
 60 DEEDS. 
 
 deeds or conveyances in the future as should be found 
 necessary to vest the title, and usually was in the form, 
 "that he will at any and all times hereinafter, upon the 
 reasonable request at the proper cost and charge of the 
 second party, his heirs and assigns, make, execute, and 
 deliver all and every such further and other lawful and 
 reasonable acts, conveyances and assurances for more 
 effectually vesting and confirming the granted premises 
 in the second party as his counsel, learned in the law, 
 shall reasonably devise or require.'* 
 
 The word "assurance" as used at common law, was 
 synonymous with the word "deed" as used at the pres- 
 ent time. 
 
 The forms of deeds in common use have a blank space 
 following the covenant against encumbrances, and also 
 following the covenant of warranty. When an encum- 
 brance is to be excepted it must be excepted from both 
 covenants. 
 
 If a mortgage were excepted from the operation of the 
 covenant against encumbrances, but not from the cove- 
 nant of warranty, it would not relieve the grantor from 
 this obligation under the covenant of warranty. 
 
 Welton vs. Welton, 109 Mich., 356. 
 
 So an exception from the covenant of warranty with- 
 out an exception from the covenant against encum- 
 brances might leave an opening for an action for breach 
 of the latter covenant. 
 
 In the drafting of covenants in conveyances where 
 husband and wife join as grantors, remember the lim- 
 ited capacity of a married woman to contract.
 
 USER OF LAND. 61 
 
 fler joint or several covenants in grants of land in 
 which she has only an inchoate dower or in which she is 
 a tenant by entireties are not binding upon her. 
 
 COVENANTS AS TO USEE OF LAND. 
 
 In conveyances of city property, a covenant restrict- 
 ing the use of the property, commonly termed "building 
 restrictions," is often inserted. 
 
 All restrictions upon the use of land must be read 
 with the statutory provision in mind : 
 
 "When any conditions annexed to a grant or 
 conveyance of lands are purely nominal and 
 evince no intention of actual or substantial bene- 
 fit to the party to whom or in whose favor they 
 are to be performed, they may be wholly disre- 
 garded, and a failure to perform the same shall 
 in no case operate as of forfeiture of the lands 
 conveyed subject thereto." 
 
 $8828 Comp. Laws. 1897. 
 
 tf -K. /i/t', 7U*,* //jrrr 
 
 They must be read with the rule in mind founded up- 
 on public policy, that the law favors the free and abso- 
 lute ownership of real estate, and the use of the same 
 by the owner in such manner as he may desire, always 
 considering that his neighbors have similar rights, 
 which must not be trespassed upon. 
 
 The general principal has been laid down that every 
 owner of the fee in land, when he conveys a part of it, 
 may impose such a limitation upon its use as will pre- 
 vent the grantee and those claiming under him from 
 making any use of the part conveyed that will impair 
 the value of the part retained.
 
 62 DEEDS. 
 
 This right is subject to the limitation that it must be 
 exercised reasonably and with a due regard to public 
 policy and the statutory limitation quoted. 
 
 The remedies for a breach of the covenant are an 
 action for damages or an injunction for a threatened 
 breach, the latter being the only effective remedy. 
 
 The court of New York has held in this connection 
 that the granting of an injunction is discretionary and 
 has laid down the rule: 
 
 " Where the conditions of the adjacent prop- 
 perty have so changed that the restricted prop- 
 erty is no longer desirable for the use for which 
 it was designed there is no ground for equitable 
 relief." 
 
 It is not necessary that the change in character of the 
 neighborhood extend to all the property affected by the 
 covenant. 
 
 Trustees of Columbia College vs. Thatcher, 87 
 N. Y., 311. 
 
 The Massachusetts court has enunciated the rule that 
 the courts will not compel the observance of restric- 
 tions and conditions when they have ceased to be of any 
 benefit. 
 
 Jackson vs. Stevenson, 31 N. E., 691. 
 
 The Michigan court recognized the doctrine in a dic- 
 tum: 
 
 "It is entirely possible that the time may come 
 when the maintenance of these conditions will be 
 of no benefit to defendant or his grantees. In
 
 USER or LAND. 63 
 
 such a case the complainant would no longer be 
 compelled to maintain them." 
 
 Abraham vs. Stewart, 83 Mich., 10. 
 
 The doctrine was recently recognized, but a ruling 
 was made that the facts in the particular case did not 
 warrant its application, in 
 
 Moore vs. Curry, 176 Mich., 456. 
 
 The construction and interpretation of building re- 
 strictions depend largely upon the language used and 
 particularly upon the acts of the parties interested in 
 the land included in the subdivision, making a prac- 
 tical construction of their understanding of the mean- 
 ing of the restrictive covenants. 
 
 The following are the leading Michigan cases involv- 
 ing building restrictions: 
 
 Frink vs. Hughes, 133 Mich., 63 Construing the re- 
 striction upon King Avenue and enjoining the erection 
 of a photograph gallery upon the rear of a lot restrict- 
 ed to residence purposes only. 
 
 Harris vs. Rorabacher, 137 Mich., 292 Construing 
 the restrictions upon Woodland Avenue enjoining the 
 erection of a two-family flat upon land restricted to be 
 used and occupied for one dwelling house. 
 
 James vs. Irvine, 141 Mich., 376 Construing the re- 
 strictions upon Euclid Avenue and refusing to enjoin 
 a two-family flat upon land restricted to be used and 
 occupied for a dwelling. The decision in the case was 
 based on the "conduct of the original grantors and 
 their grantees showing their understanding," rather 
 than upon the language of the covenant.
 
 64 DEEDS. 
 
 Bignall vs. Young, 151 Mich., 69 Construing the re- 
 strictions upon Melbourne Avenue and enjoining the 
 erection of a two-family flat upon land restricted to be 
 used for " nothing but a two-story dwelling house." 
 
 Tillotson vs. Gregory, 151 Mich., 128 Construing the 
 restriction upon Chandler Avenue and refusing to en- 
 join a flat upon lands restricted to residence purposes, 
 and ruling that a restriction limiting the space between 
 the buildings and side lines of the lots had been waived 
 by the acts of the parties. 
 
 Stott vs. Avery, 156 Mich., 674 Holding that an own- 
 er of restricted land who attends a public sale of other 
 lands in the subdivision which are offered free from re- 
 strictions, and who does not protest, is estopped from 
 enforcing the restriction against the purchasers. 
 
 Allen vs. City of Detroit, 167 Mich., 464 Construing 
 the restriction upon Cadillac Avenue, enjoining the erec- 
 tion of a fire engine house upon lands restricted to resi- 
 dence purposes, laying down the principle that a fail- 
 ure to insert the restrictions in all conveyances will not 
 defeat the restrictions if they have been maintained 
 from their inception, and that restrictions are binding 
 upon municipalities as well as private individuals. 
 
 Erichsen vs. Tappert, 172 Mich., 457 Construing the 
 restriction upon Chandler Avenue and enjoining the 
 erection of a store and flat upon the rear of the lot, but 
 facing an unrestricted street, the land being restricted 
 to dwelling house purposes. 
 
 Schadt vs. Brill, 173 Mich., 647 Construing the re- 
 striction upon Helen Avenue, enjoining the erection of 
 a duplex flat, with a single entrance, on land restricted 
 to be used for a dwelling house, though a double house
 
 USER OF LAND. 65 
 
 had been erected on the extreme end of the subdivision. 
 
 Main vs. Davis, 176 Mich., 443 Construing the re- 
 strictions on Alger Avenue and enjoining a small fac- 
 tory upon the rear of a lot restricted to residence pur- 
 poses. 
 
 Moore vs. Curry, 176 Mich., 443 Construing the re- 
 strictions on Curry stone or Grand Avenue and enjoin- 
 ing a store on the Woodward Avenue frontage. 
 
 Kingston vs. Burch, 176 Mich., 566 Construing the 
 restrictions on Josephine Avenue and enjoining a du- 
 plex flat upon lands subject to a restriction, the prem- 
 ises to be used for residence purposes only and no dwell- 
 ing house to be erected costing less than $2,000, the de- 
 cision being based on the fact that the practical con- 
 struction of the land owners had been to a user for 
 single dwellings. 
 
 Misch vs. Lehman, 178 Mich., 225 Involving the same 
 restriction as in Schadt vs. Brill, holding that one breach 
 of the restriction alone acquiesced in will not estop its 
 enforcement, and that an injunction should not be per- 
 petual, but should be subject to modification if future 
 changes in the neighborhood makes its continuance in- 
 equitable. 
 
 Harts vs. Kales Realty Co., 178 Mich., 560 Enun- 
 ciating the doctrine that a person accepting a convey- 
 ance of a piece of restricted land adjoining unrestricted 
 land previously owned by the grantee, containing an 
 agreement that grantee would use his entire land ac- 
 cording to the restriction, is bound thereby, though the 
 agreement was not signed by him. 
 
 Stewart vs. Clark, 181 Mich., 408, 21 D. L. N., 766 
 Construing a restriction involving building line.
 
 66 DEEDS. 
 
 Langton vs. Stedman, 21 D. L. N., 961 Ruling that 
 the comparative damage to the complainant is of no 
 importance and that delay and acquiescence will not 
 defeat the remedy by injunction unless continued so 
 long as to defeat the right itself. 
 
 Zoellar vs. Goldberg, 21 D. L. N., 1090 Construing 
 the restriction on Chandler Avenue, holding that the 
 rear of a lot restricted to residence purposes could not 
 be used for other purposes than a corner with a front- 
 age on another street. 
 
 Lambrecht vs. Graulich, 22 D. L. N., 687 Holding 
 that when a vendor owning several lots sells one with- 
 out restriction and later sells his remaining lots re- 
 stricted, the lot first sold cannot be subjected to such re- 
 strictions. 
 
 CONCLUSION. 
 
 The conclusion of a deed is a formal statement of the 
 fact of its execution and the date thereof. It is not es- 
 sential to the validity of the instrument. 
 
 SIGNING. 
 
 At common law, signing of a deed was unnecessary, 
 sealing and delivery being the essential formalities. 
 
 Signing is generally necessary in the United States 
 under the statutes. 
 
 8956 Comp. Laws, 1897.
 
 SEAL. 67 
 
 It is customary to sign the instrument at the end, but 
 a signature in any part of the instrument followed by 
 delivery has been held sufficient. 
 
 The manual act of signing may be by the person or by 
 some other person in his presence at his direction or by 
 mark. 
 
 SEAL. 
 
 Sealing was at common law of vital importance and 
 took the place of signing. As I understand it, the seal 
 was a substitute enabling the illiterate to identify their 
 acts. In most of the United States, the necessity of 
 sealing has been abolished by statute, though a seal is 
 still essential to the validity of deeds in New York and 
 Vermont. 
 
 Under the Michigan statutes a scroll or device used 
 as a seal is of the same effect as a seal. 
 
 9005 Comp. Laws, 1897. 
 
 The statute provides that a conveyance shall not be 
 deemed invalid for want of a seal or scroll. 
 
 10417 Gomp. Laws, 1897. 
 
 The seal of a corporation affixed to a conveyance is 
 presumptive evidence that the execution was authorized 
 by the corporation. 
 
 Merritt vs. Montgomery, 25 Mich., 72. 
 Benedict vs. Denton, Walk. Ch., 336.
 
 68 DEEDS. 
 
 WITNESSES. 
 
 Witnesses are not essential to the validity of a deed 
 either at common law or in this state so far as its valid- 
 ity is concerned. They are, however, essential to en- 
 title a deed to record, if executed in this state, and 
 under the recording laws of many of the states. 
 
 The witnesses to a deed may be any persons capable 
 of understanding the act having no interest in the trans- 
 action. 
 
 Parties to the instrument should not be witnesses to 
 the signature of other parties, and husbands and wives 
 being generally disqualified as witnesses for or against 
 the other should not act as witnesses to the conveyances 
 of each other. 
 
 There prevails an unwarranted contempt for the for- 
 mality of witnessing the execution of written instru- 
 ments. 
 
 If it becomes necessary to prove the execution of 
 an instrument some years later, the subscribing wit- 
 ness will usually recognize his signature but may have 
 no recollection of the transaction. Suppose you as a 
 subscribing witness are under examination on oath 
 and asked: How do you know that the grantor signed 
 this deed? Have you not at request signed your name 
 as a witness when in fact you did not see the in- 
 strument executed? How do you know that this was not 
 one of those kindly acts? There is only one course:
 
 DELIVERY. 69 
 
 Never subscribe your name as a witness to the 
 execution of any instrument unless you see the 
 maker affix his signature or the maker in your 
 presence declare the existing signature to be 
 his, 
 
 otherwise, as no man's memory is infallible, your name 
 as a subscribing witness will ever be a menace to any 
 instrument whether rightfully or wrongfully attached. 
 
 DELIVERY. 
 
 Delivery of a deed is as essential to the validity of 
 modern conveyances as was livery of seizin to the feudal 
 feoffment. Delivery may be said to take the place of 
 livery of seizin. 
 
 No grant is valid without delivery of the deed. What 
 amounts to a sufficient delivery is generally a question 
 of intention. It involves two elements, transfer of con- 
 trol of the instrument by the grantor and acceptance by 
 the grantee. 
 
 Delivery must be made in the lifetime of the grantor. 
 Taft vs. Taft, 59 Mich., 185. 
 
 Acceptance by the grantee is presumed. 
 
 Possession of the instrument by the grantee is pre- 
 sumptive evidence of delivery. 
 
 Recording is prima facie evidence of delivery. 
 
 Jourdan vs. Patterson, 102 Mich., 602. 
 Holmes vs. Me Donald, 1 >9 Mich., 503.
 
 70 DEEDS. 
 
 Parting with control of the deed by the grantor is 
 the essential element of delivery. 
 
 Whether or not delivery has been made comes into 
 question most frequently when deeds are made, but the 
 grantor desires to suspend their effect during his life- 
 time. 
 
 As to such cases where the instrument is fully exe- 
 cuted but retained by the grantor in his possession and 
 control, they are usually invalid. 
 
 When the deed is delivered to a third person to be 
 delivered by him to the grantee after the grantor's 
 death, if no control is retained by the grantor this de- 
 livery is sufficient. 
 
 Such a transaction is generally termed a delivery in 
 escrow, but this is not technically correct. When the 
 delivery is made to a third person unconditionally ex- 
 cept to await the death of the grantor, delivery is re- 
 garded as made when deposited. A technical escrow is 
 a delivery to a third person to be delivered by the third 
 person to the grantee on performance of some condi- 
 tions, as payment of money. In such a case there is no 
 legal delivery until the second delivery is made. 
 
 A delivery to a third person to be delivered to the 
 grantee without any conditions attached, will pass title 
 to the premises though a devise of the land to another 
 is made at a later date. 
 
 If the grantor in delivering to the third person re- 
 tains a right to recall the instrument, there is no de- 
 livery and the deed will be void.
 
 ACKNOWLEDGMENT. 71 
 
 There is an exception of the foregoing rules in case 
 of government patents. Delivery of a patent is not es- 
 sential. Such a medium of transferring title is akin 
 to the common law transfers of title by record in which 
 livery of seizin was unnecessary. It is an act of the 
 sovereign power. 
 
 Though the deed in question has been delivered if it 
 appear from the contents of the instrument that it was 
 intended to take effect only in event of the grantor's 
 death, it may be construed as a will and not a legal 
 grant of land. 
 
 Bigley vs. Souvey, 45 Mich., 370. 
 Leonard vs. Leonard, 45 Mich., 503. 
 
 ACKNOWLEDGMENT. 
 
 As a general rule the acknowledgment of a deed is a 
 requisite of the recording laws, but is not essential to 
 its validity. 
 
 Taylor vs. Young, 48 Mich., 268. 
 
 In Ohio acknowledgment is essential to the validity 
 of the instrument. 
 
 An acknowledgment is a declaration before a com- 
 petent officer by a person that the execution of a par- 
 ticular instrument or writing is his free act and deed. 
 
 Who is a competent officer is wholly a matter of stat- 
 utory law, but the most common official is the notary 
 public, whose authority is generally recognized by the 
 laws of all states and countries.
 
 72 DEEDS. 
 
 The notary was originally one who took notes of ju- 
 dicial proceedings under the Roman law, and was an 
 important personage under the canon law and in Euro- 
 pean countries generally. I believe in Canada commis- 
 sions are not issued indiscriminately as in the United 
 States. 
 
 The notary originally kept a record of his acts. The 
 Michigan statutes expressly provide for the preserva- 
 tion of such records on retirement from office, but do 
 not expressly require the keeping of records. 
 
 The certificate of acknowledgment must contain: 
 
 1. Venue or locality, that is state and county. 
 
 2. Date of acknowledgment. 
 
 3. Before whom acknowledged. 
 
 4. That the grantor personally appeared. 
 
 5. The grantor's name. 
 
 6. The officer's acquaintance with grantor. 
 
 7. The fact of acknowledgment. 
 
 8. The officer's signature. 
 
 9. In some states the officer's seal. 
 
 10. In some states the date the officer's com- 
 mission expires. 
 
 A substantial compliance with the above requirements 
 is generally sufficient. 
 
 An officer who certifies the acknowledgment of a 
 stranger is liable, together with his bondsmen, for dam- 
 ages. 
 
 Doran vs. Butler, 74 Mich., 643. 
 
 Identification or introduction by a common acquaint- 
 ance of respectable standing in the community should
 
 ACKNOWLEDGMENT. 73 
 
 always be required. The notary is bound to inform 
 himself of the identity of the person. 
 
 Cameron vs. Culkins, 44 Mich., 531. 
 
 Interest in the transaction will disqualify the notary 
 to act. 
 
 The Michigan legislature has determined that inter- 
 est in a corporation or even being an officer in the cor- 
 poration does not disqualify a notary to act unless the 
 notary is individually or officially a party to the instru- 
 ment. 
 
 Act No. 18, Public Acts Mich., 1909. 
 
 The notary's certificate must be based upon his per- 
 sonal knowledge. If he does not understand the lan- 
 guage of the person desiring to acknowledge an instru- 
 ment he cannot utilize the services of an interpreter. 
 
 Deivey vs. Campau, 4 Mich., 565. 
 Harrison vs. Oakman, 56 Mich., 346. 
 
 The law provides for the administration of oaths 
 through interpreters, but no such authority is given to 
 the notary ; he must know the facts to which he officially 
 certifies of his own knowledge. 
 
 In Michigan, notaries are appointed for the county in 
 which they are domiciled but they may act anywhere in 
 the state. 
 
 If a notary appointed for Wayne County acts in Ma- 
 comb County, the venue of his certificate would be Ma- 
 comb County, it would recite that the party appeared 
 " before me the subscriber, a Notary Public in and for
 
 74 DEEDS. 
 
 the County of Wayne, acting in the County of Macomb. ' ' 
 He should sign "Notary Public, Wayne County, Mich- 
 igan, acting in the County of Macomb." 
 
 Notaries in Michigan since 1903 are required to add 
 to their certificate the date of expiration of their com- 
 missions. 
 
 Act 18, P. A. Mich., 1903. 
 
 THE RECORDING LAWS. 
 
 From the earliest colonial days in America a system 
 of public registration of conveyances of land has been 
 provided, open to the inspection of the public gener- 
 ally. 
 
 Each state has provided by statute in what manner 
 conveyances shall be executed to entitle them to record. 
 
 The present Michigan statutes require that deeds exe- 
 cuted within the state be executed in presence of two 
 witnesses who shall subscribe the instrument and that 
 the grantor acknowledge the execution of the instrument 
 before any 
 
 Judge, Clerk or Commissioner of a Court of 
 Record, or 
 
 Notary Public, 
 
 Justice of the Peace, or 
 
 Master in Chancery. 
 
 8962 Comp. Laws, 1897. 
 .*. 7*,2r,"'r ' //f*V 
 
 Amended by Act 103, P. A., 1905.
 
 RECOEDING LAWS. 75 
 
 The statutory manner of execution has varied from 
 time to time. 
 
 Deeds executed in any other state, territory or dis- 
 trict of the United States may be executed according to 
 the laws of the place of execution and acknowledged be- 
 fore any 
 
 Judge of a Court of Record, 
 Notary Public, 
 Justice of the Peace, 
 Master in Chancery. 
 
 Or other officers authorized by the laws of the 
 state, territory or district to take acknowledg- 
 ments of deeds, or before a commission appointed 
 by the governor of the State. 
 
 8963 Comp. Laws, 1897. 
 
 The acknowledgments taken in other states, except 
 when taken before a commissioner appointed by the 
 governor of the state, shall be authenticated with the 
 seal of the officer. 
 
 If such officer has no seal a certificate of the clerk 
 or proper officer of a court of record or the Secretary 
 of State of the place under his seal of office shall be 
 attached, stating that the person certifying was at the 
 date of the certificate the officer represented, that he be- 
 lieves the signature genuine and that the deed is ack- 
 nowledged according to the laws of the state. 
 
 8964 Comp. Laws, 1897. 
 
 Deeds executed in foreign countries may be executed
 
 76 DEEDS. 
 
 according to the laws of such country and acknowledged 
 before any 
 
 Notary Public, 
 Minister plenipotentiary, 
 Minister extraordinary, 
 Minister resident, 
 Charge d 'Affairs, 
 Commissioner, or 
 
 Consul of the United States appointed to re- 
 side therein, which shall be certified by the officer 
 taking the same or if a notary, under his seal. 
 
 8965 Comp. Laws, 1897. 
 
 This act is made retroactive. 
 
 The uniform act, 9025 Comp. Laws, adds to the of- 
 ficers in foreign countries any 
 
 Minister, 
 Vice Consul, 
 
 Consular agent of the United States resident 
 in any foreign country or port of entry, when 
 certified under his seal of office. 
 
 Where deeds are not acknowledged, provision is made 
 for proving them by subscribing witnesses. 
 
 8969-8975, Comp. Laws, 1897. 
 
 Provision is also made for temporary filing of un- 
 acknowledged deeds. 
 
 8976-8977, Comp. Laws, 1897. 
 
 c a.*'fftr'-*0*- /7 *7 
 
 The record of any conveyance executed in the manner 
 required by law or a transcript thereof may be read in
 
 <^*^* 
 
 CONVEYANCES/'^^/ 77 
 
 evidence in any court in the state without further proof, 
 
 but the effect may be rebutted by other competent testi- 
 
 <8< ^& *f 
 
 mony. **+, ^^ 
 
 8990 Comp. Laws, 1897. ^^ ' 
 
 e )f . }*+<Ji i *ff- i *.$ & F-H^ 
 
 Any insrument executed in the same manner as a 
 conveyance, except wills and promissory notes, is ad- 
 missible in evidence without proof of execution. 
 
 10168 Comp. Laws, 1897. 
 
 Every conveyance of real estate not recorded shall 
 be void as against subsequent purchasers in good faith 
 and for a valuable consideration of the same real estate 
 or any portion thereof whose conveyance shall be first 
 recorded. 
 
 8988 Comp. Laws, 1897. 
 
 e ? 7fa*t *+'*- "? *-' 
 
 Act 199, P. A. 1915, has added to this section : 
 
 "The fact that such first recorded conveyance 
 is in the form of or contains the terms of a deed 
 of quitclaim and release shall not affect the ques- 
 tion of good faith of such subsequent purchasers 
 or be of itself notice to him of any unrecorded 
 conveyance of the same real estate or any part 
 thereof. ' ' 
 
 Conveyances as used above embrace every written 
 instrument by which any estate or interest in land is 
 created, aliened, mortgaged or assigned or by which 
 the title of any real estate may be affected in law or 
 equity, except wills, leases for less than three years 
 and executory contracts for the sale of or purchase of 
 land. 
 
 8994 Comp. Laws, 1897.
 
 78 DEEDS. 
 
 Land contracts are within the recording laws. 
 
 9038 Comp^ Laws, 1897. 
 ~~ 
 
 /#, //71 3 
 
 The recording laws do not make an unrecorded con- 
 veyance void between the parties. They only operate 
 when the rights of subsequent purchasers are involved. 
 
 Sinclair vs. Slawson, 44 Mich., 123. 
 
 The law requires the register to keep entry book of 
 deeds, mortgages and a reception book of levies. 
 
 8979 Conm. Laws, 1897. 
 
 Instruments are to be considered as recorded when 
 they are noted in the entry books. 
 
 8980 Comp. Laws, 1897. 
 C- - 7JU*-, 't/f~' // 7/Z- 
 
 This entry is notice, though the instrument is incor- 
 rectly recorded. 
 
 It supplies deficiencies. 
 
 Sinclair vs. Slawson, 44 Mich., 123. 
 
 Patents from the United States do not come within 
 the terms of the recording laws. 
 
 Moran vs. Palmer, 13 Mich., 375. 
 Sands vs. Davis, 40 Mich., 18. 
 
 An execution levy is now upon the same footing as a 
 deed. 
 
 9224 Comp. Laws, 1897.
 
 BONAFIDE PURCHASER. 79 
 
 A subsequent purchaser under the above statute 
 means a subsequent purchaser from the same grantor. 
 
 Smith vs. Williams, 44 Mich., 244. 
 
 A grantee with actual notice of a prior deed or mort- 
 gage is not a bona fide purchaser. 
 
 Notice to an agent is notice to the principal. 
 Russell vs. Sweezney, 22 Mich., 238. 
 
 Under the rule if an attorney has knowledge of un- 
 recorded conveyances, his client is bound by his knowl- 
 edge whether disclosed or not. 
 
 As heretofore stated a purchaser under a quit claim 
 deed prior to August 23rd, 1915, is not a good faith pur- 
 chaser. 
 
 This rule applies only to the purchaser accepting the 
 quitclaim deed. 
 
 If one deriving title through quit claim deeds conveys 
 to another by warranty deed, the latter may be a bona 
 fide purchaser. 
 
 Otis vs. Kennedy, 107 Mich., 312. 
 
 If the rule were otherwise, once a quitclaim deed en- 
 tered into a chain of title, that title could never again 
 come under the protection of the recording laws. 
 
 If one is a bona fide purchaser under the recording 
 laws, a purchaser who had knowledge of prior defects 
 in the title can purchase and stand in his place as a 
 bona fide purchaser. 
 
 Godfrey vs. Disbrow, Walk., 260.
 
 80 DEEDS. 
 
 Otherwise the title of a bona fide purchaser would 
 only be a protection to him and would not be saleable. 
 
 A purchaser from a purchaser with notice can be a 
 bona fide purchaser; actual notice to the grantor is not 
 actual notice to his grantee. 
 
 Holcomb vs. Mosher, 50 Mich., 252. 
 
 You will observe that the adage, "one can convey no 
 better title than he holds," fails when the recording 
 laws are applied and that the contra proposition ob- 
 tains. 
 
 It is a presumption of law that the subsequent pur- 
 chaser who first records his deed is a bona fide purchas- 
 er without notice until the contrary is made to appear, 
 
 Godfrey vs. Disbrow, Walker, 260. 
 
 Possession of land is notice to all the world of the 
 occupant's rights. He who buys, relying on the record 
 title, without investigation of possessory rights, buys 
 subject to the rights of the occupant. Cases sustaining 
 the principle can be found through the reports from Har- 
 rington's Chancery to the last decision rendered by our 
 court. 
 
 There is an exception to this rule. Where a grantor 
 remains in possession after delivery of an absolute 
 deed, his possession is not notice of an interest adverse 
 to his deed. 
 
 Bloomer vs. Henderson, 8 Mich., 395. 
 Me Ewan vs. Kearney, 178 Mich., 6.
 
 INTENDED AS SECURITY. 81 
 
 This always seemed to me a rule making the common 
 practice of deeding lands and taking a contract back 
 on the loan of money a hazardous proceeding. 
 
 An instrument not executed in a manner entitling it 
 to record is not notice. 
 
 Wing vs. Me Dowell, Walker Chan., 102. 
 This rule has not been rigidly followed. 
 
 Sections 9048 to 9051, Comp. Laws of 1897, were 
 passed in 1861 with a view of curing the blunders of the 
 past and apparently anticipated that the conveyances 
 of the future would not be infallible. 
 
 Section 8980 of the recording act provides that all 
 absolute conveyances not intended as mortgages shall 
 be recorded in books set aside for deeds and that all 
 mortgages and other deeds intended as securities shall 
 be recorded in books set aside for mortgages. 
 
 In applying this statutory rule the court has held that 
 an owner making a deed of land to a third person, abso- 
 lute upon its fee, which was immediately recorded as a 
 deed, the third person giving back a contract to recon- 
 vey the land on payment of a sum of money, that the 
 deed and contract constituted a mortgage and the record 
 of the deed was not notice to a subsequent purchaser. 
 
 Grand Rapids National Bank vs. Ford, 143 Mich.. 
 402.
 
 82 ESTATES. 
 
 STATUTORY REGULATION OF ESTATES IN 
 
 REAL PROPERTY, USES, TRUSTS 
 
 AND POWERS. 
 
 I have called your attention to some of the statutory 
 provisions upon these subjects and their importance is 
 such that possibly a quotation of some of the statutes 
 will not be unwarranted. 
 
 ESTATES IN REAL PROPERTY. 
 
 8796 of the Compiled Laws provides: 
 
 ff , JT' S^**** " '''* it S 9 2 
 
 "Every future estate shall be void in its crea- 
 tion which shall suspend the absolute power of 
 alienation for a longer period than is prescribed 
 in this chapter; such power of alienation is sus- 
 pended where there are no persons in being, by 
 whom an absolute fee in possession can be con- 
 veyed. ' ' 
 
 8797 oflhe Compiled Laws provides : 
 
 "The absolute power of alienation shall not be 
 suspended by any limitation or condition what- 
 ever, for a longer period than during the con- 
 tinuance of two lives in being at the creation of 
 the estate, except in the single case mentioned in 
 the next section." (The University of Michigan 
 is authorized to hold in perpetuity, Public Acts 
 1899, 126.) 
 
 8798, Sec. 16. A contingent remainder in fee may 
 be created on a prior remainder in fee, to take effect in 
 the event that the persons to whom the first remainder 
 is limited shall die under the age of twenty-one years, 
 or upon any other contingency by which the estate of 
 such persons may be determined before they attain 
 their full age.
 
 EXPECTANT ESTATES. 83 
 
 8799 prohibits successive estates for life except to 
 persons in being, and provides that where a remainder 
 is limited on more than two life estates all life estates 
 after the first two shall be void and the remainder shall 
 take effect on the death of those persons. 
 
 8800 prohibits the creation of a remainder on a term 
 of years except the remainder be for the whole of the 
 residue of the term. *-*' *****'**" / / tr "sr 6- 
 
 8802 prohibits the creation of a contingent remainder 
 upon a term of years unless the remainder shall vest 
 within two lives in being, tf -*?#**/, '9'{~ " s' 
 
 8803 prohibits the limitation of a life estate as a 
 remainder on a term of years except to a person in be- 
 ing at the creation of the estate. <?/*- bu*A /f'J ' ' 
 
 8807 authorizes the creation of future estates in the 
 alternative. 
 
 8819 prohibits the accumulation of rents and profits 
 of real estate unless the accumulation be directed to 
 commence at the creation of the estate out of which the cJE-/X 
 rents arise, and be for the benefit of a minor or minors '*'*"" 
 in being and terminate with their minority, or 
 
 The accumulation commences within the expiration of 
 two lives in being and during the minority of the per- 
 son to be benefited and terminate with the minority. 
 
 <*./ 
 
 8820 prohibits the creation of expectant estates ex- 1 4 
 
 cept such as are authorized by Chapter 237, Compiled * ' 
 Laws.
 
 84 USES AND TRUST POWERS. 
 
 ,USES AND TRUSTS POWERS. 
 * Bi- 
 
 sections 8829 and 8856 abolish the uses, trusts and 
 powers known to the common law except so far as they 
 are authorized by Chapters 238 and 239 of the Compiled 
 Laws. 
 
 8830 provides that all existing uses are confirmed as 
 legal estates. <=~ JT- n*** '!*--'?* c, 
 
 8831 provides that every grant, assignment or devise 
 giving the grantee actual possession of the land with 
 the right to receive the rents and profits, gives the 
 grantee a legal estate of the same quantity as his bene- 
 ficial interest. O-X 
 
 This statute abolishes passive trusts. 
 
 8832 provides the preceding section shall not de- 
 stroy the estate of a trustee where the title of the trus- 
 tee is connected with some power or disposition or ac- 
 tual management. C-*- ^~~t 
 
 8833 provides that every disposition of land shall be 
 made directly to the person in whom the right of pos- 
 session and profits shall be intended to be vested and 
 not to any other to the use of or in trust for such per- 
 son. A grant contrary to the inhibition vests no estate 
 in the trustee, e f. y-hu**~L . '1C - / ' f <, * 
 
 The last two sections have been construed by the New 
 York court in 
 
 LaGrange vs. L' Amour eaux, 1 Barb. Ch., 16. 
 Kingo vs. Townsend, 36 N. E., 513.
 
 CREATION AND PURPOSE. 85 
 
 In the former case when a deed was made to one per- 
 son for the use and benefit of several other persons, one 
 of the several filed a bill in equity to compel the grantee 
 named in the deed to convey to the beneficiary his in- 
 terest in the estate. The court dismissed the bill, stat- 
 ing that under the statute referred to the party named 
 as trustee took no interest in the land, but the legal title 
 vested in the beneficiaries. 
 
 In the latter case the court held that where the party 
 to whom land was conveyed as trustee for the benefit 
 of others also had a beneficial interest, he would take 
 the legal title and the statutory rule would not apply. 
 
 8835 provides that where a grant for a valuable con- 
 sideration is made to one person and the consideration 
 is paid by another, no trust results in favor of the per- 
 son paying the consideration. c. f. 
 
 8836 and 8837 provide that this rule does not pre- 
 vent creditors impressing the land with a trust to the 
 extent of their claims nor does it apply where the gran- 
 tee shall have taken the grant in his own name without 
 the knowledge or consent of the party paying the con- 
 sideration or where the grantee in violation of a trust 
 
 purchases the land with the money of another. e-*->a*^/ f 
 
 // S"7 2- 
 
 8838 provides that no implied or resulting trust shall 
 be alleged or established to defeat the title of a pur- 
 chaser for value without notice, c - ^ - >n*-.w. ' i 
 
 8839 specifies the purposes for which trusts in lands 
 may be legally created, viz: <- 
 
 1. To sell lands for the benefit of creditors. 
 
 2. To sell, mortgage or lease lands for the
 
 86 USES AND TRUST POWERS. 
 
 benefit of legatees or for the purpose of satisfy- 
 ing any charges thereon. 
 
 3. To receive the rents and profits of lands 
 and apply them to the use of any person during 
 the life of such person or for any shorter term 
 subject to the rules prescribed in the last preced- 
 ing chapter. 
 
 4. To receive the rents and profits of lands 
 and to accumulate the same for the benefit of any 
 married woman or for either of the purposes and 
 within the limits prescribed in the preceding 
 chapter. 
 
 5. For the beneficial interest of any person or 
 persons when such trust is fully expressed and 
 clearly defined on the face of the instrument 
 creating it subject to the limitation as to time 
 prescribed in the preceding chapter. 
 
 Any trust the purpose of which is not within the au- 
 thority of this section is absolutely void. 
 
 The fifth subdivision is not found in the New York 
 statute. This distinction must be remembered in ap- 
 plying the New York decisions. 
 
 8840 provides that a devise of lands to an executor 
 or trustee to be sold or mortgaged when the executor 
 or trustee is not authorized to receive the rents and 
 profits, give not title but only a power to sell or mort- 
 gage and the land descends to heirs or passes to dev- 
 isees subject to the execution of the power. 
 
 8841 gives rights to creditors in the surplus of rents 
 and profits from a trust.
 
 RESPONSIBILITY. 87 
 
 C v 
 8842 provides when a trust is created which is not 
 
 authorized by the statute it may amount to a power. 
 
 8844 provides that every valid trust shall vest the 
 title to the land in the trustee that the cestui que trust-C-f- 
 ent shall take no estate in the land but may enforce his // 
 beneficial right in equity. 
 
 8845 authorizes one creating a trust to declare to^ ^' 
 whom the land shall pass upon failure or termination 
 of the trust. 
 
 8847 provides that no person beneficially interested 
 in a trust for the receipt of the rents and profits of landu ^. 
 can assign or in any manner dispose of such interest, t 
 but the rights and interest of every person for whose 
 benefit a trust for the payment of a sum in gross is 
 created are assignable. 
 
 The New York court decided before Michigan bor- 
 rowed this section that "gross" means one sum, not 
 several fixed sums. 
 
 Hawley vs. James, 16 Wend., 262. 
 
 8843 provides that if a trust is not contained or de- + 
 clared in the conveyance to the trustee the deed shall 
 be deemed absolute against subsequent creditors and 
 purchasers from trustee for value without notice. 
 
 8849 provides when the trust is expressed in the c*. &* 
 conveyance to the trustee, that every sale or act in the /' * 
 contravention of the trust shall be void. 
 
 8850 provides that one paying money to a trustee ^ ^. 
 shall not be responsible for the malfeasance of the trus- 
 tee in applying the fund. -
 
 88 POWEES. 
 
 
 
 8851 provides that when the purposes for which an 
 express trust are created have ceased, the estate of the 
 trustee shall cease. 
 
 POWERS. 
 
 8856 abolishes powers except as authorized in the 
 sections following. 
 
 8857 defines power as an authority to do some act in 
 relation to land or in the creation of estates which the 
 owner might personally do. 
 
 i & 8858 provides that no person can create a power un- 
 ' / less he is at the time capable of alienating some estate 
 in the land to which the power relates. 
 
 8860 defines a general power as an authority to con- 
 vey in fee to any one. 
 
 8861 provides that powers are special: 
 
 1. When disposition can be made only to des- 
 ignated persons. 
 
 2. When the estate that can be conveyed is 
 less than fee. 
 
 | iff 
 
 fT* s 8862 defines a beneficial power as one in the execu- 
 
 ( tion of which no one other than the grantee or donee 
 has any interest. 
 
 8864 provides that when an absolute power of dis- 
 position not subject to a trust is given the owner of an 
 estate for life or years, such estate shall be an absolute 
 fee in respect to the rights of creditors and purchasers
 
 ASSIGNMENT OF THE POWER. 89 
 
 subject to any future estate limited in case the power 
 is not exercised. 
 
 8865 makes the same provision, though no estate is 
 granted the donee of the power. 
 
 8866 provides that when such a power is granted and rJZ/?++ 
 no remainder limited, the donee takes an absolute fee. / / 
 
 8867 provides that when a general and beneficial 
 power to devise the inheritance is given to a tenant for 
 life or years he shall possess an absolute power of dis- / / 
 position within the meaning of the last three sections. 
 
 8868 provides that every power of disposition shall 
 be absolute when the donee may in his life time dispose 
 of the entire fee for his own benefit. 
 
 8869 provides that if the donor of the power reserves C * 
 
 t S f ^^ 
 
 to himself the right of revocation he is still deemed the 
 owner in fee so far as the rights of creditors and pur- 
 chasers are concerned. 
 
 8870 provides that a special and beneficial power //* 
 may be granted: 
 
 1. To a married woman to dispose of during 
 marriage any estate less than a fee belonging to 
 her in lands to which the power relates. 
 
 2. To a tenant for life of the lands embraced 
 in the power to make leases for not more than 
 twenty-one years and to commence in possession 
 during his life. 
 
 8871 prohibits the life tenant assigning the power 
 above separate from his life estate and that it shall pass
 
 90 POWEES. 
 
 with an assignment of his estate unless specifically ex- 
 cepted and when so excepted it shall be extinguished. 
 
 8872 provides that such a power may be released by 
 <jr the life tenant to the person entitled to the next expec- 
 
 tant estate and such a release shall extinguish the 
 power. 
 
 8873 provides a mortgage by a life tenant having 
 power to lease or a married woman holding a power as 
 above does not extinguish the power but the power is 
 bound by the mortgage in the same manner as the land 
 embraced. 
 
 /i 8874 provides: 
 
 1. That the mortgagee is entitled in equity to 
 the execution of the power so far as the satisfac- 
 tion of the debt may require. 
 
 2. That any subsequent estate created by the 
 owner in execution of the power is bound by the 
 mortgage. 
 
 fl l 8875 provides that only such beneficial powers as 
 
 have been defined in the preceding sections shall be 
 / valid. 
 
 
 
 8876 subjects special and beneficial power to the 
 claims of creditors. 
 
 |V 
 
 8877 provides that a general power is in trust when 
 
 any person other than the grantee is designated as en- 
 I titled to the proceeds of a sale of the lands under the 
 
 power or any part thereof.
 
 BENEFICIAL INTEEEST. 91 
 
 8878 provides that a special power is in trust, when f t fa 
 a grant under ft must be made to designated persons 
 or persons other than the grantee are entitled to the 
 benefit of its execution. 
 
 8879 provides that the execution of every power in - *, 
 trust unless expressly made discretionary is imperative . 
 and imposes a duty that equity will enforce. 
 
 8880 provides that a power in trust is imperative C-L 
 though the donee is authorized to select any and exclude -> / 
 some of the designated beneficiaries. 
 
 8881 provides that when a power is to be executed ./, 
 in behalf of several persons they shall share equally in *> L > 
 the benefits unless a contra distribution is designated. 
 
 8882 provides that if the trustee is authorized to dis- 
 tribute in such proportion as he sees fit he may allot the C / /** 
 entire fund to a part of the class and exclude others. // & / 
 
 8883 and 8884 authorize the Court of Chancery to 
 execute a power in trust in event of the death of the e * A 
 donee or such a power in a will when no one is desig- 
 nated for the purpose. 
 
 8885 makes Sections 8850 to 8855, relating to ex- . /** 
 press trusts, applicable to powers. // & j./ 
 
 authorizes the Court of Chancery to compel the 
 execution of a power in trust for the benefit of creditors ^ 
 when the objects of the trust are assignable. f / 
 
 8887 provides that the beneficial interest in power 
 pass by an assignment for the benefit of creditors. c . > 
 
 f f
 
 ^, 
 
 92 POWEKS. 
 
 8888 provides that the grantor in any conveyance 
 may reserve to himself any power he could grant to an- 
 other. 
 
 ^- 8889 provides that powers may be created by a 
 clause in a conveyance of some estates in the lands to 
 which the power relates or by a devise in a last will 
 or testament. 
 
 8890 places powers within the operation of the re- 
 cording laws. 
 
 i i(f 8891 makes powers irrevocable unless the right of 
 revocation is reserved in the instrument creating the 
 power. 
 
 JUf ' 8892 makes any person capable of holding land cap- 
 able of holding a power. 
 -v * 
 
 8894 provides that when a power is vested in several, 
 all surviving must unite in its execution. 
 
 8895 requires a written instrument, sufficient to pass 
 title to land, for the execution of a power. 
 / 
 
 8896 provides that every instrument except a will 
 made in execution of a power shall be deemed a con- 
 veyance and subject to the statutes relative to the exe- 
 ^cution and recording of deeds and mortgages. 
 
 8897 provides that a power to alienate land by will 
 can only be exercised through that medium. 
 
 - , ? 
 *r~ 
 
 contains a similar mandate as to the execution 
 of a power to alienate by grant.
 
 PROVISIONS OF WILLS. 93 
 
 8990 prohibits the donor from dispensing with the O K. " 
 statutory requirements in the execution of a power. / / 
 
 8901 provides if the grantor direct formalities in the- * 
 execution of a power other than those required by the // 3 
 statute they may be ignored. 
 
 / J* T/i 
 8902 provides that nominal conditions not affording^* " 
 
 substantial benefit annexed to a power may be disre- 
 garded. 
 
 8903 provides that the intention of the donor of a t L 
 power shall be observed as to mode, time and manner 
 of execution so far as it does not conflict with the pro- * * * 
 vision of the chapters on powers. 
 
 8904 provides that when the consent of a third per- 
 son is requisite to the execution of a power that such 
 consent shall be expressed in the instrument by which . y 
 the power is executed or certified in writing on the in- ,; 
 strument under the signature of the party. Such con- 
 sent must be executed and acknowledged in the same 
 manner as a conveyance to entitle the instrument to be 
 recorded. 
 
 8905 provides that a grant by the donee of a power^*" ^ 
 in excess of his authority shall be valid to the extent ' 
 he was authorized. 
 
 8906 provides that it is unnecessary to recite or re- 
 fer to a power in the instrument used in its exercise. 
 
 8907 provides that the will of a testator purporting 
 
 to devise all his estate shall pass land which he was 
 
 C? ^* >L 
 authorized by a power to devise, in the absence of an 
 
 intent to the contrary expressed or necessarily implied. ' ' ** ^-
 
 94 POWERS. 
 
 8909 provides that a power granted by parent to a 
 descendant shall be an advancement to the same extent 
 and under the same circumstances that a gift of real 
 & or personal estate would be an advancement. 
 
 "8910 provides the date for the computation of time 
 which alienation may be suspended by a power is the 
 date of the instrument creating the power and not the 
 date of the instrument used in exercising the power. 
 
 8911 provides that no estate can be created by the 
 ^ execution of a power which the person could not have 
 
 ir / taken under the instrument creating the power. 
 
 8913 and 8914 authorize the Court of Equity to 
 ^ remedy a defective execution of a power at the suit of 
 
 ** 7 beneficiaries or purchasers. 
 ' ^ 
 
 8915 provides that the power of sale in a mortgage 
 / passes to the assignee or other person entitled to the 
 money secured. 
 
 ut ^ 
 
 8916 provides that the statutory provisions relative 
 to power shall not apply to simple powers of attorney 
 to convey lands. 
 
 The statutory provisions reviewed affect conveyanc- 
 ing in that they prohibit the creation of certain inter- 
 est in land, regulate trusts and powers, define certain 
 of the formalities incident to particular conveyances, 
 and establish rules and limitations which if violated will 
 render the most carefully drawn conveyance a legal dis- 
 aster. 
 
 Trusts and powers are distinguished in that an ex- 
 
 <
 
 SUSPENSION OF ALIENATION. 95 
 
 press trust requires title to real estate in the trustee 
 while title in the donee of a power is not requisite. 
 
 Where the donee of a power is the absolute and bene- 
 ficial owner of the fee, the power is automatically 
 merged in the fee. 
 
 A trustee may hold the legal title and a power at the 
 same time; such a coincidence will not effect a merger. 
 
 SUSPENSION OF ALIENATION. 
 
 I have referred you to Mr. Chaplin for information 
 upon this subject and I will only call your attention to 
 some of his rules and principles and a few Michigan 
 cases illustrating their application. 
 
 This rule arises from the application of the following 
 sections of the Compiled Laws of 1897, viz : 
 
 8796. Every future estate shall be void in its crea- 
 tion, which shall suspend the absolute power of aliena- 4* *> s* 
 tion for a longer period than is prescribed in this chap- 
 ter; such power of alienation is suspended when there /"' 
 are no persons in being, by whom an absolute fee in 
 possession can be conveyed. 
 
 8797. The absolute power of alienation shall not be 
 suspended by any limitation or condition whatever, for 
 a longer period than during the continuance of two lives^- 4 * " 
 in being at the creation of the estate, except in the sin- ff *"" 
 gle case mentioned in the next section. 
 
 8798. A contingent remainder in fee may be created ~ *. 
 on a prior remainder in fee, to take effect in the event 
 
 ,9 sr 3
 
 96 SUSPENSION OF ALIENATION. 
 
 that the persons to whom the first remainder is limited 
 shall die under the age of twenty-one years, or upon any 
 other contingency by which the estate of such persons 
 may be determined before they attain their full age. 
 
 8839. Express trusts may be created for any or 
 either of the following purposes: 
 
 1. To sell lands for the benefit of creditors. 
 
 2. To sell, mortgage or lease lands, for the 
 benefit of legatees, or for the purpose of satisfy- 
 ing any charge thereon. 
 
 3. To receive the rents and profits of lands, 
 and apply them to the use of any person, during 
 the life of such person, or for any shorter term, 
 subject to the rules prescribed in the last pre- 
 ceding chapter. 
 
 4. To receive the rents and profits of lands, 
 and to accumulate the same for the benefit of any 
 married woman, or for either of the purposes 
 and within the limits prescribed in the preceding 
 chapter. 
 
 5. For the beneficial interest of any person 
 or persons, when such trust is fully expressed, 
 and clearly defined upon the face of the instru- 
 ment creating it, subject to the limitations as to 
 time prescribed in this title. 
 
 8847. No person beneficially interested in a trust for 
 the receipt of the rents and profits of lands can assign 
 or in any manner dispose of such interest; but the rights 
 and interest of every person for whose benefit a trust 
 for the payment of a sum in gross is created, are as- 
 signable.
 
 VESTING is THE CONTROLLING FEATURE. 97 
 
 8910. The period during which the absolute right 
 of alienation may be suspended by any instrument in 
 execution of a power, shall be computed from the time 
 of the creation of the power, and not from the date of 
 such instrument. / / 
 
 There are two primary elements to be considered, 
 which are formulated by Mr. Chaplin into two rules, 
 viz: 
 
 "Rule I. ALIENABILITY The power of convey- 
 ing the absolute fee in possession shall not be 
 suspended beyond the statutory period." 
 
 Under this rule he points out : 
 
 (a) "It affects all estates, interests, rights and 
 possibilities of every character which are capable 
 of interfering with the power of conveying an 
 absolute fee in possession." 
 
 (b) "It does not insist upon vesting but abso- 
 lute alienability." 
 
 The distinction suggested under the second subdivi- 
 sion is not generally appreciated by lawyers or jurists. 
 
 "Rule II. VESTING Estates in remainder 
 shall be so limited that within the statutory pe- 
 riod, if ever, they must vest in interest." 
 
 Under this rule he points out : 
 
 "The rule applies only to remainders, but in- 
 sists not only on absolute alienability but also 
 upon vesting." 
 
 In the examination of decided cases you will often 
 meet the dictum or rule that vesting alone is the con- 
 trolling feature. Ordinarily a vested future remainder
 
 98 SUSPENSION OF ALIENATION. 
 
 is alienable, but a trust may be absolutely vested and 
 be inalienable. 
 
 Alienability in connection with a trust means more 
 than alienability of the specific lands in question. There 
 may be power to alienate the specific land, but if the 
 proceeds are held beyond the statutory period the trans- 
 action is within the rule. 
 
 Palms vs. Palms, 68 Mich., 355. 
 Niles vs. Mason, 126 Mich., 482. 
 
 Do not permit the apparent contra rule in Thatcher 
 vs. St. Andrew's Church, 37 Mich., 264, to mislead you. 
 In the Thatcher case, as was pointed out by Justice 
 Champlin in the Palms case and again in the Niles case, 
 the trust terminated with the exercise of the power of 
 sale and the proceeds were distributed to the beneficiary, 
 not held in trust. 
 
 Where the power of sale is an imperative direction, 
 and amounts to an equitable conversion, it will avoid 
 the rule. 
 
 Ford vs. Ford, 80 Mich., 42. 
 
 The statutory period must be directly or indirectly, 
 but ultimately, measured by lives in being. No terms 
 of years alone can be a valid measure of a trust term. 
 
 Casgrain vs. Hammond, 134 Mich., 419. 
 State vs. Holmes, 115 Mich., 456. 
 Farrand vs. Petit, 89 Mich., 673. 
 
 The person who receives rents and profits of land 
 from a trustee cannot release or convey. It follows that 
 such an interest is inalienable. 
 
 8847 Comp. Laws, 1897.
 
 CONTENTS OF MORTGAGES. 99 
 
 Trusts authorized under subdivisions 1 and 2 of sec- 
 tion 8839 never suspend alienation, while those under 
 the remaining subdivisions may, particularly when they 
 come within the prohibition of section 8847. 
 
 An annuity payable by a trustee from rents and prof- 
 its of land was held to count as a life and to suspend 
 alienation, in 
 
 Wilson vs. O'Dell, 58 Mich., 533. 
 Dean vs. Mumford, 102 Mich., 510. 
 Niles vs. Mason, 126 Mich., 482. 
 
 Cole vs. Lee, 143 Mich., 207, would seem opposed to 
 the foregoing rule, but in this case the annuities were 
 not charged upon rents and profits of land, but upon the 
 body of the estate and properly come within subdivision 
 2 of the statute. 
 
 Failure of a remainder to vest in interest is illustrat- 
 ed in a specific devise of distinct parcels of land to 
 three daughters with remainder over to the body heirs 
 of all three daughters. 
 
 The will was held void as during the lives of the three 
 daughters it could not be determined who would be their 
 body heirs and there were no persons in being who could 
 convey an absolute fee. 
 
 Trufant vs. Nunnelly, 106 Mich., 554. 
 
 With these brief suggestions, I again refer you to 
 Mr. Chaplin, calling your attention to Act 280, P. A.. 
 Mich., 1915, under which charitable and educational 
 trusts are permitted in perpetuity. 
 
 We will devote a few words to the subject of the con-
 
 100 MORTGAGES. 
 
 tents of mortgages, leases and executory contracts of 
 sale. Substantially the same rules as to form, manner 
 of execution, interpretation that have been given apply 
 to them. 
 
 MORTGAGES. 
 
 Mortgages were originally conveyances of land in fee, 
 but upon condition that upon the payment of a certain 
 sum of money and interest the grant would be void; 
 that is, they were grants to be defeated upon perform- 
 ance of a condition stated in the deed. 
 
 They originally passed the legal title to the lands. The 
 modern doctrine is that they merely create a lien upon 
 lands. The forms of mortgages in common use follow 
 the statutory form rather than the grant upon condition. 
 I refer to the same statute which provides the statuory 
 form of deeds. 
 
 Mortgages, in addition to the conditional grant of the 
 premises or the statutory substitute, generally contain 
 covenants : 
 
 1. To pay a certain sum of money with in- 
 terest payable at fixed periods. 
 
 2. To pay all taxes assessed against the mort- 
 gaged lands. 
 
 3. To keep the improvements upon the land 
 insured against loss or damage by fire for the 
 benefit of the mortgagee. 
 
 4. Sometimes a covenant to pay an attorney 
 fee in event of foreclosure. 
 
 5. An agreement that the the mortgagee may 
 pay any tax or insurance premium not paid by
 
 TAX CLAUSES. 101 
 
 the mortgagor and for the repayment with inter- 
 est thereon at the highest legal rate. 
 
 6. A provision that if default is made in pay- 
 ment of any installment of principal or interest 
 tax or insurance premium the entire amount ow- 
 ing may be declared due. 
 
 7. A power of sale, which authorizes the mort- 
 gagee, in event of default, to sell the premises at 
 public auction, to realize the amount due. 
 
 A note or bond is usually given in connection with 
 the mortgage. This is the evidence of indebtedness and 
 the mortgage collateral security for its payment. 
 
 Notes and bonds bear interest but " interest at six per 
 cent per annum" is payable at the maturity of the debt 
 unless the instrument fixes periodical payments. 
 
 A transfer of a note secured by mortgage carries the 
 mortgage. 
 
 The clause for the payment of taxes is not necessary 
 as the mortgagee would have the right to protect his 
 security against such a claim and add the amount paid 
 to the mortgage debt without such an agreement, but 
 he could collect interest on his outlay only at the legal 
 rate. 
 
 Sometimes a provision is added to the tax clause re- 
 quiring the mortgagor to pay all taxes assessed against 
 the mortgage interest. Such clauses are dangerous. If 
 the tax with the interest exceeds the rate of interest 
 legally permitted, the instrument will be usurious and 
 all interest forfeited.
 
 102 MORTGAGES. 
 
 The insurance clause is important; without it the 
 mortgagee would be compelled to insure at his own ex- 
 pense or take the risk of fire and look to the land alone. 
 
 The insertion of a provision for attorney or solicitor 
 fees in event of foreclosure is useless, such undertakings 
 being under the Michigan rules unenforcible penalties. 
 
 If the mortgage be foreclosed by exercise of the pow- 
 er of sale, the statute authorizes fixed attorney fees to 
 be added. 
 
 11152 Comp. Laws, 1897. 
 
 If the mortgage be foreclosed in equity the attorney 
 fee provided by the rules of court may be taxed. No 
 other attorney fee can be recovered. 
 
 If the provision permitting the entire debt to be de- 
 clared due is omitted, foreclosure can only be had for 
 the amount actually due and the lands sold for this 
 amount subject to the amount to become due. 
 
 The court is given a discretionary power to sell for 
 sum not due by statute. 
 
 528-531 Comp. Laws, 1897. 
 
 e..**JLn'* /A*//-~ - *&?*-' 
 
 Unless the mortgage contains a power of sale it can 
 only be enforced by a foreclosure in equity. The power 
 in the mortgage is the foundation of the foreclosure by 
 advertisement.
 
 LEASES. 103 
 
 LEASES. 
 
 Leases are grants for a term of years rather than in 
 fee and resemble the old feudal tenure in that rental is 
 reserved. 
 
 The ordinary lease contains : 
 
 1. The grant of the premises for a term of 
 years. 
 
 2. A condition that entry may be made and 
 the premises repossessed if any covenant is 
 broken. 
 
 3. A covenant to pay a certain rental at a 
 certain time or times. 
 
 4. Usually a covenant by the tenant not to 
 assign or sublet. 
 
 5. A covenant by the tenant to keep the prem- 
 ises in repair. 
 
 6. A covenant to quiet enjoyment. 
 
 7. A covenant to use the premises for a par- 
 ticular purpose. 
 
 The ordinary forms specify the purpose for which the 
 premises are leased but generally omit a covenant by 
 the tenant to use the premises only for such a purpose. 
 
 It is safer to embody an express covenant of the ten- 
 ant to use the premises only for a specific purpose, then 
 the right of re-entry for a breach is beyond dispute. 
 
 The lease should contain a reservation to the land- 
 lord of the right to enter and inspect the condition of 
 the premises and to make repairs if he deems the tenant 
 negligent in his duties in this respect.
 
 104 LEASES. 
 
 The landlord is as much a trespasser as a stranger 
 should he enter the demised premises without the ten- 
 ant's consent. 
 
 Leases of buildings for commercial or manufacturing 
 purposes often contain and should contain various man- 
 dates and reservations. For instance provisions: 
 
 Requiring the tenant to keep and obey all po- 
 lice and sanitary regulations imposed by any 
 state or municipal authority. 
 
 To observe all reasonable regulations imposed 
 by any underwriter as a basis of the insurance 
 rate upon the building. 
 
 Not to permit any inflammable or combustible 
 matter to accumulate upon the premises. 
 
 A provision that the term shall end at the op- 
 tion of the landlord in event of insolvency of the 
 tenant. 
 
 The landlord should never covenant in the lease to 
 make repairs of any kind. Such a covenant will sub- 
 ject him to liability for damages to the tenant or others 
 for a defective condition of the premises. There is no 
 such liability unless there is such a covenant in the 
 lease. A dangerous condition of the premises might 
 exist for months without a landlord having any notice 
 or knowledge of the situation. 
 
 There is no limitation upon a period or term of a 
 lease except that contained in the constitution in case 
 of agricultural lands, though a lease for years may of- 
 fend the statutory provisions limiting the suspension of 
 alienation. 
 
 8805 Comp.. Laws, 1897. 
 
 Art. XVI., Sec. 10, Constitution, 1907.
 
 MEMOEANDUM OF SALE. 105 
 
 MEMORANDUM OF SALE. 
 
 The preliminary instrument in the conveyance of a 
 parcel of land is usually a memorandum of sale to make 
 a valid contract under the terms of the statute of 
 frauds. 
 
 The test of sufficiency of such instruments is, does 
 the memorandum give the terms of the proposed sale 
 sufficiently complete to enable a court to enforce the 
 contract without resorting to other evidence? 
 
 It should acknowledge receipt of any part of the pur- 
 chase money paid, describe the land, state the condi- 
 tion of the seller's interest, whether clear or encum- 
 bered, and if encumbered what disposition is to be made 
 of the encumbrance; state the purchase price and the 
 terms of payment of the price, if payment is deferred 
 and to bear interest, the rate of interest and when pay- 
 able; contain the seller's agreement to sell the land to 
 the purchaser on the terms stated and to deliver a mar- 
 ketable title and fix the time for consummation of the 
 contract. It usually provides for the delivery of and 
 time for examination of the abstract. It should be 
 signed by the owner of the land and his wife, if the title 
 is joint or the land a homestead. 
 
 The purchaser's oral agreement to buy is a binding 
 contract.
 
 106 OPTIONS. 
 
 OPTIONS. 
 
 Instead of a preliminary memorandum of sale for the 
 purposes of the statute of frauds, an option is some- 
 times made. This is a contract where the seller, for a 
 consideration varying from the nominal consideration 
 of a dollar to any sum, agrees with the purchaser to sell 
 certain lands on certain terms to the purchaser at any 
 time within a certain period. The seller is bound by the 
 contract to sell, but the purchaser may complete the con- 
 tract, or if he fails so to do within the time fixed, the 
 contract is at an end. It is simply a right to purchase 
 for a fixed time. This instrument should contain the 
 substance of the memorandum of sale as to description, 
 purchase price, terms .of payment, condition of title as 
 to being clear or encumbered, etc., and contain an agree- 
 ment by the purchaser to sell the land to the purchaser 
 or his assigns at any time on or before a fixed day rath- 
 er than for a period of time. If it be a thirty-day op- 
 tion, fix the time a month in advance, as January 12 
 next, at 12 o'clock noon, and avoid computation of time. 
 
 It should provide that it may be exercised within the 
 time fixed by an acceptance in writing accompanied by 
 a deposit on account of the purchase price, and provision 
 for delivery of abstract and time for consummation. The 
 option must have a consideration. The money paid for 
 the option should not in the terms of the option be ap- 
 plied upon the purchase price. If you take a thirty 
 days' option at $50,000 and pay $1,000 for the option, 
 pay your $1,000 and take the option for $49,000.
 
 EXECUTOKY CONTRACTS OF SALE. 107 
 
 EXECUTORY CONTRACTS OF SALE, 
 
 or what are commonly termed land contracts, generally 
 contain parts of the deed, mortgage, lease and memo- 
 randum, viz: 
 
 1. The agreement to sell certain described 
 land by one party to another for a certain sum. 
 
 2. An agreement by the vendee to purchase 
 the land and pay the purchase money at a certain 
 time or certain times, with interest, payable at 
 certain intervals. 
 
 3. A tax and insurance clause as in a mort- 
 gage. 
 
 4. An agreement by the vendor to deliver an 
 abstract of title. 
 
 5. An agreement by the vendor to convey the 
 land free from incumbrances on performance by 
 the vendee. 
 
 6. They should contain an agreement permit- 
 ting all sums owing to be declared due if de- 
 fault is made. 
 
 7. An agreement that the vendee shall have 
 possession of the premises while he is not in de- 
 fault in carrying out the terms of this contract. 
 
 8. A provision for forfeiture and repossessing 
 the premises. 
 
 9. The contract usually contains a provision 
 prohibiting an assignment by the vendee of the 
 contract or a sale of his interest in the land. 
 
 If the contract does not contain an agreement by the 
 vendor to furnish an abstract he is under no obligation 
 to do so.
 
 108 EXECUTORY CONTRACTS OF SALE. 
 
 What has been said in connection with deeds as to 
 parties and description of lands will apply to mort- 
 gages, leases and contracts. 
 
 Unless the contract of sale by its terms gives the ven- 
 dee the right of possession he has no such right. 
 
 Unless the contract gives the vendee the right of pos- 
 session, the machinery of the statutes regulating sum- 
 mary proceedings to recover possession (11164-11183, 
 Comp. Laws) cannot be invoked to recover possession. 
 
 The statement in the contract of the nature of the 
 rights of the vendee in default, whether a tenant at will 
 or a tenant holding over without permission, determines 
 the notice necessary to be given before a forfeiture can 
 be enforced. 
 
 Murphy vs. Me Intyre, 143 Mich., 342. 
 
 It may be said that whenever the amount paid on ac- 
 count of the purchase price by the vendee substantially 
 exceeds the fair rental value of the premises that the 
 only safe method of extinguishing the vendee's right 
 is what is generally termed a "foreclosure of the con- 
 tract." 
 
 The proceeding for foreclosure is rather a proceeding 
 in equity to enforce a vendor's lien. 
 
 Fitzhugh vs. Maxwell, 34 Mich., 138. 
 
 The above decision contains a learned discussion of 
 the rights of parties to an existing contract for the sale 
 of land and should be read. 
 
 Be careful in attempting to enforce or forfeit such
 
 USUAL METHOD. 109 
 
 contracts as were made during the time Act 200, Public 
 Acts of Michigan, 1911, was in force. This act pro- 
 vided an exclusive remedy under certain contracts and 
 incidentally gave the purchaser a right of redemption 
 for one year. The act was repealed at the session of 
 1913. 
 
 Our courts have held that a right of redemption is a 
 part of a contract and that it is not in the power of 
 the legislature to destroy such right by repealing the 
 act and changing the remedy. 
 
 Cargill vs. Powell, 1 Mich., 369. 
 
 Upon the execution of a contract, the interest of the 
 purchaser is real estate, while that of the seller is a 
 security for purchase money. The legal title of the land 
 remains in the vendor, but in trust as security for the 
 purchase money. Upon the administration of estates, 
 the interest of the vendor is personal property subject 
 to distribution as such, while the interest of the vendee 
 is real estate and descends as such. 
 
 The usual method of transferring the interest of a 
 vendee is an assignment of the contract. The clause 
 prohibiting an assignment by the vendee is of doubtful 
 validity. Our court has never directly passed upon it. 
 The New Jersey court has in effect held it invalid. 
 
 When we consider the rights of the parties in the 
 property it seems to me that the proper method of 
 transferring the vendee's interest is the usual warranty 
 deed subject to the incumbrance for the purchase money 
 with a covenant by the grantees to assume and pay the 
 same. The vendor's own land, why not grant it by deed 
 the same as if the land was subject to a mortgage?
 
 110 DRAFTING OF CONVEYANCE. 
 
 I have met with objection to such a course, but the 
 same person has invariably consented to the execution 
 of an assignment containing all the elements of a "full 
 covenant warranty deed other than its form. 
 
 Suppose a contract was made in 1900 and assigned in 
 1914, and the assignee paid the balance of the purchase 
 money in 1915. He would receive a deed with the cove- 
 nants limited to 1900. If a tax or other incumbrance 
 attached in 1913 through the omission of the original 
 vendee, the purchaser would have no redress under the 
 covenants in his deed. There are no covenants in the 
 assignments in common use. He would have no re- 
 dress. 
 
 The vendee is seized of an equitable title and it is not 
 subject of dower. Dower at common law never at- 
 tached to an equitable title. 
 
 Stephens vs. Leonard, 122 Mich., 125. 
 The homestead right will attach to an equitable title. 
 
 THE PRACTICAL DRAFTING OF CONVEYANCES. 
 
 A few words upon the practical drafting of convey- 
 ances. The stationer supplies printed forms of nearly 
 every conveyance in common use. There is no objection 
 to their use, but in using them do not take for granted 
 because the particular form is labeled deed, mortgage, 
 contract, option, release, that by merely filling in the 
 blank spaces with names, dates, descriptions, terms, that 
 the result will be the desired conveyances. 
 
 Nearly all the forms of deeds of land are sufficient 
 for a simple conveyance in fee simple by one person to 
 another.
 
 CONDITIONAL, DEED. Ill 
 
 Scrutinize the mortgge blank and determine whether 
 it contains the necessary covenants as to the payment 
 of taxes, maintenance of insurance; whether it author- 
 izes the mortgagee to declare the entire debt due if de- 
 fault is made in the payment of any installment of inter- 
 est or other covenant. Does it contain a power of sale? 
 Is the interest clause so framed that it is free from 
 usury? Does it contain the provisions that are inserted 
 in mortgages taken by financial institutions in the lo- 
 cality? If your client should desire to dispose of his 
 security it will not increase his confidence in you if the 
 banker refuses to purchase because of the form of se- 
 curity. 
 
 What are the remedies of the vendor under the par- 
 ticular blank form of a land contract which you pur- 
 chase? When in default, is the vendee a tenant at will 
 entitled to three months ' notice or a tenant holding over 
 without permission after his term has expired and en- 
 titled to reasonable notice of forfeiture? If he makes 
 default must you enforce your contract for two or three 
 monthly payments or does the form authorize the ven- 
 dor to declare the entire amount owing due and pay- 
 able? 
 
 Does the form of assignment of mortgage transfer 
 the note or bond and the mortgage or only the mort- 
 gage? 
 
 The ordinary form of part release of mortgaged 
 premises in the market was evidently prepared prior to 
 1840, when a mortgage was a conditional deed, and has 
 never been revised. You can use it; it will effect a re- 
 lease of the desired land. It will indicate a better un- 
 derstanding of your calling to draft an instrument re-
 
 112 DEAFTING OF CONVEYANCE. 
 
 leasing the particular land from the lien of the mort- 
 gage unless the mortgage is drawn upon an antique 
 form which is still sold by the stationer. 
 
 The stationer's form of option when filled in and exe- 
 cuted will give you a right to purchase a piece of land, 
 but it will not give you any time to examine the title or 
 even a right to demand an abstract of title for that pur- 
 pose. Under it you simply pay your money and de- 
 mand a deed. 
 
 You must read the form and determine that it con- 
 tains the necessary provisions to carry out your design ; 
 the fact that it is in common use does not make it in- 
 fallible. 
 
 Having procured a proper form and determined that 
 the particular form will carry out your design, the most 
 important act in the use of the form is to exercise the 
 highest degree of care in writing the names of persons. 
 There are no rules regulating the spelling of names of 
 persons. When your instrument reaches the recording 
 office to be copied there is nothing to distinguish "U" 
 from "N" or an "F" from a "T," an "S" from an 
 "R" or an "0" from an "A" except such care or 
 carelessness as you have devoted to their production 
 The context will enable one to decipher other words, 
 but upon the conveyancer alone rests the responsibility 
 of certainty of names. 
 
 In drawing warranty deeds to be executed by a man 
 and wife of land in which the wife only has a dower in- 
 terest or as a tenant by entirety, there is nothing gained 
 by the wife joining in the covenants for title. 
 
 She cannot be bound by her covenant in a deed unless 
 it conveys her sole property.
 
 USE OF LONGHAND. 113 
 
 The practice of ruling in all blank spaces in a deed 
 with colored lines should be followed, but do it person- 
 ally. Use your head as well as your hands. When you 
 are about to rule out a space read enough of the instru- 
 ment upon either side of the blank to determine its pur- 
 pose and you will often fill the space with a word or 
 phrase rather than a line. 
 
 Euling out the blanks improves the appearance of the 
 instrument and if performed thoughtfully it serves as 
 a check upon the accuracy of the instrument and usually 
 results in the crossing of "t's" and dotting of "i's" 
 which would otherwise be left to conjecture. 
 
 When you underline the names of grantor and gran- 
 tees, just imagine some other person wrote them and 
 see if you can determine who they are. 
 
 In expressing the terms of your contract, endeavor 
 to do so in simple, short words free from ambiguity 
 and when once expressed, stop ; do not repeat the state- 
 ment, in other language or attempt to state what you 
 intend by the expression used. Repetition is productive 
 of uncertainty. If you have so expressed yourself that 
 it is necessary to detail your intention, rewrite your in- 
 strument in such language that another can deduce but 
 one meaning from it and that the desired meaning. This 
 is sometimes difficult, but usually possible. 
 
 Your client can better afford to pay for a little addi- 
 tional time for such an effort than to pay for litigation 
 over the meaning of an ambiguous instrument. 
 
 Personally, I believe in the filling in of blank forms in 
 long hand. The typewriter avoids illegibility, but the
 
 114 EXAMINATION OF TITLES. 
 
 ink of the ribbon has but little durability. In writing 
 descriptions there is a common practice of writing out 
 the lot number and repeating the number in figures. 
 viz: ''Lot seven (7)." I can see no benefit from the 
 practice except an enlarged field for error. The writing 
 would prima facie overrule the figures. 
 
 Use care in describing fractional parts of irregular 
 lots. Halves and quarters are measures of area, not 
 frontage. If you desire to convey half of an irregular 
 shaped lot sometimes it can be accomplished by using 
 the expression "half the width," but it may be neces- 
 sary to describe its boundaries by their courses and dis- 
 tances. 
 
 EXAMINATION OF TITLES. 
 
 Title to land may be said to be the right of a private 
 individual to the exclusive possession of a particular 
 parcel of land as against the remainder of the world. 
 
 The original source of title is the sovereign power as 
 the king was the original source of title under the feudal 
 system. The original evidence was the mailed fist and 
 the lance. 
 
 The early adventurers who discovered America took 
 possession of the territory in the names of their re- 
 spective sovereigns. Through wars and treaties the 
 American colonies and ultimately the United States suc- 
 ceeded to the title to the country. Grants emanating 
 from the sovereigns in power from time to time were 
 made to private individuals. 
 
 Michigan lands are a part of what was known as the
 
 INDEXING PUBLIC RECOKDS. 115 
 
 Northwest Territory. Many of the original colonies 
 claimed that their charters from the crown gave them 
 title to land far to the westward of the present limits 
 of the respective states, while the general government 
 that existed under the Articles of Confederation claimed 
 that the unsettled domain was spoils of the Revolution- 
 ary war for common division. 
 
 Virginia, Massachusetts and Connecticut claimed the 
 Northwest Territory. Virginia ceded her rights to the 
 general government in 1784. Massachusetts followed 
 in 1785 and Connecticut in 1786, and the United States 
 is regarded as the original source of title to lands in 
 the states which were formed out of the territory, ex- 
 cepting the so-called Private Claims to which the United 
 States never had any title whatsoever. 
 
 The United States has granted parts of the public 
 domain to private individuals under cash, homestead 
 and military bounty entries and to the state under the 
 various university and school lands and swamp land 
 grants, and as subsidies for public improvements such 
 as canals, highways and railroads. Patents have been 
 executed by the Federal Government and by State gov- 
 ernments of the lands granted to them. 
 
 The recording laws have provided a place of public 
 registration of conveyances, patents, grants and other 
 evidence of title. 
 
 The system of indexing public records in common use 
 in most of the states is an alphabetical index of the 
 names of the grantors and grantees. 
 
 This has been found uncertain and private individuals
 
 116 EXAMINATION OF TITLES. 
 
 have undertaken to copy the public records and index 
 them by reference to the land described in the instru- 
 ment, and prepare and furnish brief abstracts of such 
 of the records as affect the title to a specific parcel of 
 land. This production is called an abstract of title and 
 varies from a mere index of the records to a more or 
 less complete copy of every instrument and judicial pro- 
 ceeding affecting the particular land. 
 
 In some localities the party making abstracts instead 
 of supplying a copy of the record, himself employs com- 
 petent talent and examines the records and furnishes a 
 certificate of title. The purchaser relies upon this cer- 
 tificate rather than abstract and an attorney's opinion. 
 Certificates are common in Cleveland, Chicago, Los An- 
 geles and in the larger cities in the west, and are com- 
 ing into use in this city. 
 
 The examination of land titles may be stated to be 
 an examination of the public records for evidences 
 which when produced in a court of justice will enable 
 a person to assert or defend title to a piece of real 
 estate. 
 
 As has been stated, the public records are presump- 
 tive evidence of the matters stated in the record. 
 
 Before taking up the subject of the record evidence, 
 your attention should be called to the fact that title to 
 land can exist without any record evidence whatever 
 that will prevail over the best of record titles, viz: 
 
 1. Possession under claim of title for the 
 period of the statute of limitations. 
 
 2. Possession under an unrecorded grant from 
 the holder of the record title.
 
 OUTSTANDING HOSTILE INTEREST. 117 
 
 It follows that in the examination of title to land, as 
 diligent an inquiry should be made into possessory 
 rights as in the record title. 
 
 In the examination of an abstract of title your object 
 is to determine in whom does the abstract show pre- 
 sumptive evidence of title and is the title shown by such 
 evidence a marketable title? 
 
 Unless the contract contains a provision to the con- 
 trary a marketable title is all that the purchaser is en- 
 titled to receive. 
 
 The term marketable title does not mean a perfect 
 title, but simply a title which is not subject to any fair 
 or reasonable doubt. 
 
 Such a thing as absolute security in the purchase of 
 real estate is unknown. 
 
 The record evidence is only presumptive, not conclu- 
 sive, evidence of ownership. 
 
 There is no such a thing as mathematical certainty; 
 the laws of average and common sense are the govern- 
 ing rules. 
 
 Assume that you have reached the conclusion that the 
 submitted title is bad ; apply the practical test. 
 
 Imagine yourself consulted by the person who holds 
 the outstanding hostile interest. That he desires to en- 
 list your services to recover the land. He submits the 
 title, showing it vested in an ancestor or a kinsman. He 
 shows that apparently, so far as the records go, this 
 title has never been parted with.
 
 118 EXAMINATION OF TITLES. 
 
 He shows his relationship and that he is sole heir-at- 
 law of the party holding the apparent title. 
 
 You advise him that his ancestor had title and still 
 has the record title, you approve the evidence that he 
 is sole heir-at-law. But when he wishes you to com- 
 mence proceedings to recover the land, what is your re- 
 ply? Invariably it is that you and those through whom 
 you claim will have no standing before the court. You 
 have neglected to claim your rights for so long a period 
 of time and allowed others to remain in possession and 
 make improvements for such a period of time that your 
 claim is stale and your rights are barred by the statute 
 of limitations. 
 
 Is it consistent to advise a purchaser that there is a 
 reasonable doubt about a land title when you would ad- 
 vise the party entitled to bring the action to recover the 
 land that there is no reasonable doubt but what his ac- 
 tion will be unsuccessful? 
 
 An examiner of title is liable to an action of slander 
 of title in the same manner as any other individual. It 
 would doubtless be a difficult matter for the plaintiff to 
 show the element of malice, but his showing of a pos- 
 sessory title is a sufficient showing for the foundation 
 of the action so far as the element of falsity is con- 
 cerned. 
 
 Hines vs. Lumpkin, 19 Texas App., 556. 
 
 However, our court has rendered a decision to the 
 effect that a purchaser is justified in refusing a title 
 when doubtful questions of law are involved and the 
 purchaser is advised by a reputable attorney acting in
 
 ABSTRACTS. 119 
 
 good faith that the title is of doubtful validity. 
 Walker vs. Gillman, 127 Mich., 269. 
 
 In every title there are some defects and some irregu- 
 larities. It will not be for you to determine their legal 
 effect. It is not a question of whether a particular deed 
 has been prepared and executed as you think it should 
 be executed or whether a particular legal proceeding has 
 been conducted as you believe it should have been con- 
 ducted, but the question is: Is the deed or proceeding 
 sufficient for its purpose as a matter of law? 
 
 Suppose that you find that some transaction standing 
 by itself which is absolutely void, a condition may exist 
 which renders the title of the grantee in the last record- 
 ed deed a marketable title. 
 
 For example, suppose Jones owned a parcel of land 
 and mortgaged the same to a bank, that the bank fore- 
 closed the mortgage and a trust company purchased the 
 title upon the foreclosure sale and the foreclosure pro- 
 ceedings were fatally defective, and later the trust com- 
 pany conveyed it to Jones, the original holder and mort- 
 gagor, and no rights of others intervene, the defective 
 foreclosure could not affect the title. 
 
 The easiest known occupation is that of finding fault 
 and criticising the acts of others, but remember when 
 your client submits to you an abstract for examination 
 he usually desires to purchase the land described. Your 
 duty is to approve the title unless there is a reasonable 
 doubt as to its validity and his security. 
 
 The money he pays you for examining his title is like 
 that paid for fire insurance. Property does not have to
 
 120 EXAMINATION OF TITLES. 
 
 be fire proof to be an insurable risk. Nor does a land 
 title have to be perfect to permit the land to be pur- 
 chased with safety and enjoyed with security. 
 
 If the abstract shows a glaring defect of recent date 
 and which affects an entire subdivision, the probabilities 
 are that you are not the first one to make the discovery. 
 Don't content yourself with the abstract, but go to the 
 original evidence, be it legal proceedings or record, and 
 verify the abstractor's copy and your defect may fade 
 away. 
 
 Never declare a title bad until you have made an ex- 
 haustive effort to approve it. 
 
 Examine the original record of the defective convey- 
 ance or proceeding. 
 
 Endeavor to secure and examine the original instru- 
 ment. 
 
 Assure yourself that the law, common or statutory, in 
 force at the date of the transaction was the same as at 
 the existing law as you understand it. 
 
 Always assume that the title ought to be good and if 
 there is evidence that the debatable instrument or pro- 
 ceeding was the work of a lawyer, who was at that time 
 of reputed ability, do not act too hastily in concluding 
 that he was in error.
 
 TITLE BY POSSESSION. 121 
 
 TITLE BY POSSESSION. 
 
 A title founded upon possession alone is a legally 
 marketable title under the laws of Michigan. 
 
 Barnard vs. Brown, 112 Midi., 452. 
 
 As a matter of practice possessory titles are not gen- 
 erally acceptable upon Griswold Street, though a court 
 may compel the purchaser to accept them. In order to 
 rely upon possession to make title it is necessary to go 
 outside of the abstract and inform yourself that the 
 statute has run. 
 
 The statute of limitations which is the foundation of > 
 a possessory title is found in 9714 to 9727, Comp. 
 Laws, and provides the following periods, viz : ' * 
 
 1. When the defendant claims title through a 
 deed made upon a sale by an executor, adminis- 
 trator, guardian, sheriff or other ministerial offi- 
 cer under an order, judgment, decree or process 
 of a court of this State or by a sheriff upon a 
 mortgage foreclosure sale, any action is barred 
 after five years. 
 
 2. Where defendant claims title through a 
 deed made by some officer of this State or the 
 United States upon a tax sale, action is barred 
 after ten years. 
 
 3. In all other cases action is barred in fif- 
 teen years. 
 
 9715 provides if the action accrued to the predeces-^. f- 
 sor in title, the person who brings the action, the / *
 
 122 TITLE BY POSSESSION. 
 
 period of the limitation shall be computed from the time 
 the action first accruing to the predecessor. 
 
 9716 fixes the time when actions first accru. 
 
 1. When a person is dispossessed the action 
 accrues at that time. 
 
 2. When the party claims as heir or devisee 
 the action accrues from the death of the ancestor 
 unless a life estate intervenes, then it accrues up- 
 on termination of the life estate. 
 
 3. Where there is an intermediate estate or 
 the party claims as remainderman or reversioner, 
 then the action accrues from the time such inter- 
 mediate estate terminates. 
 
 4. When the party claims for breach of con- 
 dition or forfeiture the right accrues at the time 
 of the breach or forfeiture. 
 
 5. In all other cases the right of action ac- 
 crues at the time the claimant became entitled to 
 possession. 
 
 9718 to 9720 provide for certain abatements : 
 
 if' 
 
 - If at the time when any right of action shall 
 
 first accrue the person entitled to bring the ac- 
 tion shall be 
 
 1. A minor, 
 
 2. A married woman, 
 
 3. Insane, 
 
 4. Imprisoned, 
 
 5. Absent from the United States unless with- 
 in one of the British provinces of North America, 
 Such person or any one claiming under him may 
 bring such action at any time within five years 
 after such disability shall have been removed.
 
 TITLE BY RECOKD. 123 
 
 $9719 provides that if the person first entitled to bring 
 the action shall die during the disability without any ^ *> 
 determination or judgment having been rendered, his ' * / f 
 heirs or those claiming under him may bring an action 
 within five years after his death. 
 
 9720 provides that no abatement shall be had for c. 
 the disability of any successor in interest. 
 
 You will observe that the abatement of the running 
 of the statute only occurs when the person first entitled 
 to bring the action is under one of the disabilities men- 
 tioned when the action first accrued. 
 
 You will observe that it is the person to whom the 
 right of action first accrues and not his successor in 
 title who is entitled to the abatement for disability. 
 
 TITLE BY EECOED. 
 
 Abstracts of title made in Wayne Couny are usually 
 prepared to cover an entire subdivision and the earlier 
 part is often printed. Title to parts of the subdivision 
 may be derived through different sources. For exam- 
 ple, a private claim may have been patented to one per- 
 son and at his death or later divided into five lots num- 
 bered 1 to 5, and conveyed to different persons and the 
 title again vested in one person and divided into a num- 
 ber of 30 foot lots. If you are examining the title to 
 lot 200, for example, the first question to be determined 
 is, is lot 200 a part of one or more of the original lots? 
 If it is a part of original lot five you have no concern 
 with the title to original lots one, two, three or four. 
 No matter what defects there may be in the title to
 
 124 TITLE THROUGH CONVEYANCE. 
 
 those lots, lot 200 of the new subdivision cannot be 
 affected. Or suppose a subdivision is made of a part 
 of private claims 26 and 641; if your lot is in private 
 claim 26 you have no concern with the title of private 
 claim 641. 
 
 TITLE THROUGH CONVEYANCES. 
 
 Having determined what part of the land your title 
 comes through, assuming the title comes from the orig- 
 inal patentee, your inquiries are: 
 
 1. Does the similarity of names of the grantee 
 in the one deed with the name of the grantor in 
 the next raise the legal presumption of the iden- 
 tity? 
 
 2. If the grantor is a male, does a wife join in 
 the execution or the deed recite that he is single? 
 
 The deed of a married man in which his wife 
 does not join leaves her dower outstanding and 
 if the land is a homestead the deed is void. 
 
 3. If the grantor is a female and the deed was 
 made prior to the abolition of the estate by the 
 courtesy, does the husband join or is there any 
 evidence that the grantor was unmarried? 
 
 4. If the possibility of dower or courtesy is 
 not thus eliminated, is there any other evidence 
 of its non-existence? 
 
 The age of the instrument, in view of the expectancy 
 of life, is to be always taken in account. If the deed 
 was made prior to 1850 it can be assumed as axiomatic 
 that dower or courtesy cannot exist.
 
 STEANGER TO THE TITLE. 125 
 
 The legal principles that the action of dower does not 
 accrue until the death of the husband and does not sur- 
 vive the death of the wife, must be kept in mind. 
 
 5. Does the instrument contain the operative 
 words essential to a grant? 
 
 6. If the grant was made prior to 1881, does 
 the instrument contain words of limitation? 
 
 7. Is the grantee described apparently a per- 
 son capable of taking title? 
 
 8. Does the deed describe the land with suffi- 
 cient certainty to enable one to identify it? 
 
 9. Are there any recitals in the deed giving 
 notice of the rights of others? 
 
 10. If the grant is a quitclaim was it deliv- 
 ered subsequent' to the date of the acquisition of 
 title by the grantor? 
 
 11. Is the instrument executed and acknowl- 
 edged in the manner required by the law in force 
 at the time of its execution or by some subsequent 
 curative statute, so as to entitle it to be recorded? 
 
 So much for the record, but who knows whether the 
 original instrument is genuine or forged or whether the 
 grantor was insane and incompetent or whether the re- 
 citals as to marriage are true or false or the party sign- 
 ing as a wife was the legal wife, or whether the grantee 
 named in the one deed is the same person as the grantor 
 of identical name in the deed following? These ques- 
 tions must often be left to common honesty. 
 
 A deed from a stranger to the title raises no presump- 
 tion of title unless the grantor was in possession. 
 
 Crawford vs. Corey, 99 Mich., 415. 
 
 A deed from a stranger to the title is not a cloud 
 which equity will remove.
 
 126 TITLE BY CONVEYANCE. 
 
 In the examination of the records of a land title you 
 are confined to the record of the title to the land in 
 question and are not concerned with the title to other 
 lands. 
 
 If you are examining the title to lot 7 of a particular 
 subdivision and the title to lot 9 comes through other 
 conveyances and in those instruments there is notice of 
 an incumbrance upon lot 7, such record is not notice to 
 the purchaser of lot 7. To use the technical expression, 
 "It is not in the chain of title." 
 
 Albany Savings Bank vs. Brass, 59 App. Div., 
 
 37 N. Y. (This case was affirmed by the Court 
 
 of Appeals without an opinion, 88 N. E., 1105.) 
 
 Meachem vs. Blaess, 141 Mich., 260. 
 
 Even though you examine the title to lot 9 and know 
 the contents of the conveyances, your knowledge will not 
 bind your client. You are only an agent and such an 
 act would be outside the scope of your authority. 
 
 Albany Sav. Bank vs. Brass, supra. 
 
 It is somewhat difficult to harmonize this rule with 
 the rules followed in building restriction cases, but I 
 believe the notice in such cases is the actual notice im- 
 parted by the buildings in the neighborhood rather than 
 constructive notice of the record, where there is noth- 
 ing in the chain of title showing a restriction. 
 
 If the deed purports to come from a surviving tenant 
 by the entirety, there must be presumptive evidence of 
 death of the other tenant, and if the death of one of the
 
 POWEES OF ATTORNEY. 127 
 
 tenants occurred since Sepember 1, 1909, there must be 
 evidence that the marriage relation existed at death. 
 
 Act 259, Pub. Acts Mich., 1909. 
 
 Since the passage of that act divorce converts a ten- 
 ancy by entirety into a tenancy in common unless the 
 decree otherwise provides. 
 
 Conveyances under powers of attorney are prepared 
 in the same manner as for execution by an owner. 
 
 The name of the owner is signed by the attorney. The 
 attorney then adds the word "by," signs his name, and 
 adds beneath the words, "his attorney in fact." 
 
 The acknowledgment of the attorney may follow the 
 statutory uniform form, 9020 Comp. Laws, or simply 
 recite the appearance of John Smith, attorney in fact c -* ***** 
 for James Brown, and that he acknowledged the in- " > ft 
 strument as his free act and deed as such attorney in 
 fact for and in behalf of said Brown. 
 
 In examining powers of attorney in connection with 
 land titles you must observe: 
 
 1. That the date of execution antedates the 
 instrument in question. 
 
 2. That the language confers power to per- 
 form the particular act. 
 
 The rules of law governing agency are to be 
 applied. 
 
 3. That they are executed in a manner en- 
 titling them to be recorded. 
 
 4. If any great interval of time has elapsed 
 between the date of execution of the power and 
 date of the deed under it, inquiry must be made
 
 128 TITLE THROUGH FORECLOSURE. 
 
 whether any revocation has been made and re- 
 corded and whether the donor was still living. 
 Death revokes the power unless coupled with an 
 interest. 
 
 The statute provides how a married woman may re- 
 lease her dower, viz: 
 
 (a) By joining with her husband in a convey- 
 ance of the land. 
 
 (b) By joining with her husband in a subse- 
 quent deed or by a deed executed by the wife 
 alone to one who has theretofore acquired and 
 then holds the husband's title, provided the in- 
 tent to bar her right of dower shall be expressed 
 in said deed. 
 
 8930 Comp. Laws, 1897. 
 
 TITLE THROUGH FORECLOSURE OF MORT- 
 GAGES. 
 
 The object of a foreclosure of a mortgage is to ex- 
 tinguish the equity of redemption in the mortgagee or 
 his successors in title. There are two methods, by a 
 proceeding in a court of equity and foreclosure by ad- 
 vertisement or more correctly termed a statutory fore- 
 closure by exercise of the power of sale. 
 
 THE STATUTORY FORECLOSURE. 
 
 To make a valid statutory foreclosure: 
 
 (a) The mortgage must contain a power of 
 sale.
 
 STATUTORY FORECLOSURE. 129 
 
 (b) There must have been a default in some 
 condition of the mortgage making the power of 
 sale operative. 
 
 (c) No suit shall have been brought to recover 
 the debt secured, or such suit must have been dis- 
 continued or an execution on a judgment returned 
 unsatisfied in whole or in part. 
 
 (d) The mortgage and all assignments must 
 have been recorded. 
 
 Assuming this condition to exist, the tests to be ap- 
 plied are: 
 
 1. Was notice that the mortgage would be 
 foreclosed by sale of the mortgaged premises 
 published for twelve successive weeks, once in 
 each week in a newspaper printed in the county 
 where the land or some part is situated? 
 
 2. Does the notice specify the names of the 
 mortgagor, mortgagee, and assignee, if any? 
 
 3. Does the notice specify the date of the 
 mortgage and when recorded? 
 
 4. Does the notice specify the amount claimed 
 due at its date? 
 
 5. Does the notice specify a description of the 
 mortgaged premises substantially the same as in 
 the mortgage ? 
 
 6. Was the sale made at the place of holding 
 the Circuit Court, in a county where the mort- 
 gaged land or some part of it is situated? 
 
 7. Was the sale made at the time fixed in the 
 notice by the person appointed in the mortgage, 
 or the sheriff, under sheriff, or a deputy sheriff, 
 and sold to the highest bidder? 
 
 8. If the sale was adjourned from the time
 
 130 FOBECLOSUEE IN EQUITY. 
 
 fixed in the notice, was notice of adjournment 
 given by publishing in the same paper as the 
 original notice once each week? 
 
 9. If the mortgaged premises consist of sev- 
 eral distinct tracts or lots not occupied as one 
 parcel were the lots sold in parcels? 
 
 (The statutory requirement that the premises 
 be sold in parcels has been repeatedly held man- 
 datory.) 
 
 10. If the land has been sold in parcels to oth- 
 ers since the mortgage was given, was the land 
 sold in the inverse order of alienation? 
 
 11. Has the time for redemption from the 
 sale expired without redemption being made? 
 
 12. Was the purchaser disqualified from pur- 
 chasing? 
 
 This proceeding is purely statutory, and unless the 
 proceeding will bear inquiries suggested it will not pass 
 title without the aid of the statute of limitations. 
 
 THE FORECLOSURE IN EQUITY. 
 
 This proceeding varies little from any ordinary chan- 
 cery suit. Most irregularities not affecting jurisdiction 
 are cured by the decree. The parties have had their 
 day in court. 
 
 The tests to be applied to this proceeding are : 
 
 1. Was the suit commenced in the county 
 where the land or a part of it is situated? 
 
 2. Have the mortgagors and all persons who 
 have acquired any interest in the premises subse- 
 quent to the mortgage, whether an estate in or 
 lien upon the same, been made parties to the suit ?
 
 CONTENTS OF NOTICE. 131 
 
 3. Have the wives of such male defendants as 
 had a legal estate of inheritance in the land been 
 made parties to the suit? 
 
 4. Have the defendants been served with pro- 
 cess in a legal manner? 
 
 5. If brought in by publication, was the order 
 of publication founded upon a sufficient affidavit 
 of non-residence? Was the order made without 
 fatal delay after the date of the affidavit, and was 
 the order served or published in the manner re- 
 quired by statute? 
 
 6. If parties have acquired estates in or liens 
 upon the lands subsequent to filing the bill and 
 before recording the commissioner's deed, was 
 a proper notice lis Pendens duly recorded? 
 
 7. Does the bill correctly describe the prem- 
 ises? 
 
 8. Was the decree properly entered and en- 
 rolled before sale? 
 
 9. Was notice of sale published once in each 
 week for six successive weeks before the time 
 fixed for sale? 
 
 10. Was a copy of the notice posted in three 
 public places in the city, village or township 
 where the land is located for six weeks previous 
 to the sale? 
 
 11. If the sale were adjourned for more than 
 one week was notice of adjournment printed and 
 posted? 
 
 12. Does the notice contain: 
 
 (a) The title of the cause? 
 
 (b) The names of the parties? 
 
 (c) The date of the decree pursuant to 
 which the sale was made?
 
 132 TITLE THEOUGH INHERITANCE. 
 
 13. Were the lands sold in the manner direct- 
 ed by the decree? 
 
 14. Was the sale reported and confirmed? 
 
 15. Was the sale made within ten years after 
 entry of the decree? 
 
 16. Was the purchaser disqualified from pur- 
 chasing? 
 
 17. Has the time for redemption expired with- 
 out the right being exercised? 
 
 What has been said of titles through foreclosure of 
 mortgages will apply to title through foreclosure or the 
 specific enforcement of land contracts, except that there 
 is no right of redemption from such a sale. 
 
 There is another feature in such sales that should 
 be called to your attention. If the vendor forecloses 
 and a third person purchases at the sale, unless the 
 wife of the vendor was a party to the suit her dower in 
 the land will not be acquired through the master's deed. 
 
 TITLE THROUGH INHERITANCE. 
 
 The persons entitled to succeed to the title to land by 
 descent are determined by the law in force at the death 
 of the ancestor. 
 
 The first law of descent in Michigan was embodied in 
 the Ordinance of 1787, which was in force from July 13, 
 1787, to January 31, 1809, though not in full force in 
 Michigan until July, 1796, when the British government 
 evacuated Detroit. 
 
 July 1, 1796, has been fixed as the official date of the 
 transfer of possession by the British to the Americans,
 
 DECENT. 133 
 
 though I believe July 11, 1796, was the date the British 
 flag was actually lowered. 
 
 See Abbott vs. Godfrey's Heirs, 1 Mich., 182. 
 Farmer's History of Detroit, 267 et seq. 
 
 The succeeding laws will be found: 
 
 Vol. 2, Territorial Laws, page 20. A re-enact- 
 ment of the Ordinance. In force Jan. 31, 1808, 
 to Jan. 19, 1811. 
 
 Vol. 1, Territorial Laws, page 160. In force 
 Jan. 19, 1811, to Oct. 1, 1818. 
 
 Vol. 1, Territorial Laws, page 356. In force 
 Oct. 1, 1818, to April 12, 1827. 
 
 Vol. 2, Territorial Laws, page 533. In force 
 April 12, 1827, to Aug. 31, 1838. 
 
 Revised Statutes, 1838. In force Aug. 31, 1838, 
 to March 1, 1847. 
 
 Revised Statutes, 1846, page 267. In force 
 March 1, 1847, to Sept. 10, 1881. 
 
 Public Acts, 1881, page 29. In force Sept. 10, 
 1881,to Sept. 8, 1883. 
 
 Public Acts, 1883, page 180. In force Sept. 8, 
 1883, to Oct. 2, 1889. 
 
 Public Acts, 1889, page 193. In force Oct. 2, 
 1889, to Aug. 28, 1893. 
 
 Public Acts, 1893, page 322. In force Aug. 28, 
 1893, to Sept. 1, 1909. 
 
 Public Acts, 1909, page 663. In force since 
 Sept. 1, 1909. 
 
 The statutory law is the only law governing descent. 
 The common law rules have never obtained in Mich- 
 igan. 
 
 Keeler vs. Dawson, 73 Mich., 603.
 
 134 TITLE THROUGH INHERITANCE. 
 
 The law of descent applies only to intestate lands. 
 
 Illegitimates inherit from the mother and the mother 
 and her kin are the heirs of an illegitimate dying with- 
 out issue. 
 
 9065-9066 Comp. Laws, 1897. 
 
 The degrees of kindred are computed according to 
 the rules of the civil law. 
 
 9068 Comp. Laws, 1897. 
 
 Half bloods inherit equally with those of the whole 
 blood. 
 
 Where there are several collateral kin of the same 
 degree, if the property was acquired by descent, devise 
 or gift from an ancestor, those not of the blood of the 
 ancestor are excluded. 
 
 9065 Comp. Laws, 1897. 
 
 The doctrine that an adopted child is the heir of the 
 foster parent or parents and can inherit from them but 
 not through them, that is, it can not claim the share of 
 a deceased foster parent in land to which the parent 
 would have succeeded if living, is laid down in 
 
 Van Derlyn vs. Mack, 137 Mich., 146. 
 
 It was held that an adopted child would satisfy the 
 classification of an heir in a remainder, in 
 
 Ultz vs. Upham, 177 Mich., 351.
 
 DESCENT. 135 
 
 Without reference to Van Derlyn vs. Mack, the court 
 seems to have overruled the doctrine therein laid down, 
 in 
 
 Fisher vs. Gardner, 21 D. L. N., 1236. 
 
 The land of an adopted child dying without issue 
 which comes from or through the foster parents, will 
 descend to their kin and not to its natural heirs. 
 
 9077 Comp. Laws, 1897. 
 
 ~ 
 
 Adoption is statutory and was unknown to the com- 
 mon law. 
 
 Albring vs. Ward, 137 Mich., 342, 354. 
 Morrission vs. Session Estate, 70 Mich., 297. 
 
 The first adoption act in Michigan was Act 26, 1861, 
 which was repealed in 1887. The original act was held 
 unconstitutional. 
 
 People vs. Congdon, 77 Mich., 351. 
 
 The result is that adoptions made prior to the Acts 
 of 1887, Nos. 171, 144 and 170, are void and inheritance 
 can not be claimed by the foster child. 
 
 A husband and wife living in a bigamous relation at 
 the time of the death of the lawful spouse, cannot in- 
 herit from him or her or claim dower. 
 
 Act 327, P. A. M., 1905. 
 
 Where a man dies without issue occupying a home- 
 stead, our courts have held that the widow is entitled 
 to the homestead right as against brothers and sisters 
 under the constitution. 
 
 Koster vs. Gellen, 124 Mich., 150.
 
 136 INTESTATE ESTATES. 
 
 Title to land of a deceased person vests in the heirs 
 or devisees at death, subject to the claims of creditors. 
 
 At common law lands were not assets in the hands of 
 the administrator. 
 
 Shelden vs. Rice, 30 Mich., 302. 
 
 In the examination of land titles, where title is de- 
 rived by inheritance, we look to the record and proceed- 
 ings in the Probate Court for evidence as to who were 
 a deceased person's heirs and whether the claims of 
 creditors have been extinguished. 
 
 Formerly the statute of limitations against the claims 
 against a deceased person abates from the date of death 
 until administration is granted. 
 
 9737 Comp. Laws. 
 C * >W, I1T 
 
 Since August 23, 1915, claims against a deceased per- 
 son are barred ten years after his death whether the 
 estate is administered or not and those against persons 
 deceased more than ten years prior to August 23, 1915, 
 may be enforced on or before February 23, 1916. 
 
 Act 256, Pub. Act, 1915. 
 
 If the estate be intestate the inquiries are : 
 
 1. Was the petition for the appointment of an 
 administrator filed by a person authorized by 
 statute to set the administration in motion? 
 
 2. Was notice of the hearing given as required 
 by statute? 
 
 3. Have Commissioners on Claims been ap- 
 pointed, met and reported their doings to the 
 court after notice as required by statute?
 
 RELATIONSHIP OF PERSONS. 137 
 
 4. If any claims, have they and the expenses 
 of administering the estate been paid? 
 
 5. Has a determination of heirs been made? 
 This is, under the statute, only prima facie evi- 
 dence of the facts determined. 
 
 6. Has an order been entered assigning the 
 residue to the persons entitled and the adminis- 
 trator discharged? 
 
 7. If the land was subject to an inheritance 
 tax, has the tax been determined and paid? 
 
 Whether the order assigning the residue is a judg- 
 ment in rem, conclusive upon all the world, if made 
 after proper notice even though erroneous, has never 
 been expressly decided in Michigan. 
 
 My personal opinion is that it is only presumptive or 
 prima facie evidence of pedigree and is not conclusive 
 upon a person not named and who had no actual notice. 
 If this position is incorrect an erroneous order is bind- 
 ing. 
 
 In the older estates the only evidence of pedigree is 
 often the recitals in the petition for administration. 
 Such recitals as ancient documents are undoubtedly pre- 
 sumptive evidence. 
 
 Affidavits as to birth, marriage, death, name, resi- 
 dence, identity and relationship of persons named in 
 conveyances may now be recorded and received as 
 prima facie evidence in courts of justice under a recent 
 statute. 
 
 Act 123, Pub. Acts Mich., 1915.
 
 138 TESTATE ESTATES. 
 
 // the estate is testate the principal inquiries are: 
 
 1. Has the will been admitted to probate after 
 statutory notice? 
 
 No petition is necessary to set the court in 
 motion. If the will is deposited in the probate 
 office it is the duty of the judge to give notice of 
 a time and place of proving it. 
 . 9278 Comp. Laws, 1897. 
 
 \r 
 
 2. The rights of creditors are the same as in 
 - an intestate estate. 
 
 T & 
 
 3. Did the testator leave any children who 
 were born after the date of the execution of the 
 will? 
 
 4. If so, does the will make any provision for 
 them or expressly exclude them? 
 
 Children born after making of a will take the 
 same share as if the parent died intestate, unless 
 >^ provision is made for them or they are excluded. 
 \* K 9285 Comp. Laws, 1897. 
 
 5. If title comes through a devise, was the 
 devisee a witness to the will? If so, were there 
 two additional competent witnesses? 
 
 A devisee to the subscribing witness is void un- 
 less there are two other competent witnesses. 
 l\4 9268 Comp. Laws, 1897. 
 
 6. The language of the devise must be exam- 
 ined to determine what estate is granted. 
 
 7. If a trust is created or conditions imposed, 
 do they violate the rules against suspension of 
 alienation? 
 
 Trusts are usually coupled with a power 
 of sale and if the trust is void the power is void, 
 and the purchaser derives no title. The land 
 vests in the residuary devisee or in the heirs at 
 law as intestate property. 
 
 * 
 
 *JUK
 
 TBUSTEE TAKES THE TITLE. 139 
 
 Since the passage of Act 253 of 1899 a trustee 
 must qualify before he can exercise the powers 
 given him. 
 
 Gibary vs. Allen, 156 Mich., 301. 
 
 As I have stated, Uses and Trusts and Powers, as 
 they were known to the common law, are abolished in 
 
 Michigan and a statutory code substituted. 9 / 
 
 A ' 
 Chapters 238 and 239. .*"** * * 
 
 8829 to 8917 Comp. Laws, 1897. , I $ ** 
 
 All uses and trusts which existed prior to the revision 
 of the statutes in 1846 which are not authorized by the 
 provision of Chapter 238, were converted into legal es- 
 tates in the beneficiaries. * ' * _ ^ & 
 
 t 7****^ / > * ' 
 
 8829-8830 Comp. Laws, 1897. - , *> ^ s 
 
 Passive or naked trusts are abolished and the legal 
 title vests in the person entitled to the rents and profits. 
 
 8831-8833 Comp Laws, 1897. c .t -"*+***' '^' 
 
 1/5-47' '/^*7 
 
 Under this rule a grant to "A" in trust for the use 
 and benefit of "B" vests title in "B." "A" takes no 
 estate or interest, legal or equitable. A conveyance from 
 "B" alone will pass title and a conveyance from "A" 
 will pass nothing. 
 
 La Grange vs. L' Amour eaux, 1. Barb Ch., 16. 
 
 If the party named as trustee in such a conveyance 
 has any beneficial interest, the trustee not the benefi- 
 ciary takes the legal title. 
 
 King vs. Townsend, 36 N. E., 513.
 
 140 TEUSTS. 
 
 A conveyance by a person whose only interest is the 
 rents and profits of land under a trust, is void, unless 
 the trust be to pay one gross sum, not several sums. 
 
 8847 Comp. Laws, 1897. 
 
 \ 
 
 The purchase from a trustee is not responsible for 
 the proper application of the funds. 
 
 8850 Comp. Laws, 1897. 
 
 When the purpose for which a trust is created has 
 $ ** ^"ceased, the estate of the trustee terminates. 
 
 A a 
 
 ft 8851 Comp. Laws, 1897. 
 
 The last two propositions apply with like effect to 
 x- powers. 
 
 8885 Comp. Laws, 1897. 
 
 The effect of these rules may be illustrated by a devise 
 to an executor in trust or a power to an executor to sell 
 lands of a decedent to pay debts or to pay incumbrances. 
 When the debts or incumbrances are paid, the power 
 of sale in the trustee or executor terminates. There- 
 after his deed will not pass title. 
 
 Powers and trusts are distinguishable in that a trust 
 requires title of the property affected in the trustee 
 while a power requires not title whatever. 
 
 A charge of debts or legacies upon land does not of 
 itself confer any power to sell the lands to satisfy the 
 charge. Such a claim is in the nature of an incumbrance. 
 
 A power may be created by express terms or by im- 
 
 *_'*
 
 POWER or ATTORNEY. 141 
 
 plication or sometimes a void trust is valid as a power 
 under the statute. 
 
 A power can only be exercised by a person capable 
 of holding and alienating lands. 
 
 8822 Comp. Laws, 1897. 
 
 V ' - ^ 
 
 Where a power is vested in several persons, all must 
 unite in its execution. 
 
 8844 Comp. Laws, 1897. 
 
 / ' V" 
 
 In case of the death of one of the donees the survivor 
 may act. 
 
 Supra. 
 
 When the consent of a third person to the execution 
 of the power is required, the consent shall be expressed 
 in the instrument by which the power is executed or 
 certified upon the instrument and the instrument or cer- 
 tificate executed by such person. 
 
 8904 Comp. Laws, 1897. 
 
 It is not necessary to recite a power in a conveyance. 
 If a conveyance is made and the grantor had no title 
 but did have a power of sale, the instrument is ordinar- 
 ily an execution of the power and will pass title. 
 
 8906 Comp. Laws, 1897. c-e .*****. 'f^, / 
 
 What has been said of powers does not apply to 
 powers of attorney. The rules of agency govern such 
 instruments as to their construction, and the rules of 
 conveyancing govern their execution.
 
 142 TITLE THEOUGH PROBATE SALES. 
 
 TITLE THROUGH PROBATE SALES. 
 
 Since 1809 statutory provisions have existed author- 
 izing administrators and executors to sell land for the 
 payment of debts where the personal estate is insuffi- 
 cient. 
 
 Sales may now be made: 
 
 1. To pay debts. 
 
 2. To pay legacies charged upon lands. 
 
 3. For distribution. 
 
 4. For preservation or to prevent sacrifice or 
 when for the best interest of all interested or to 
 carry out the provision of a will. 
 
 Sales for the purposes named in the fourth subdivi- 
 sion excepting that to carry out the provisions in a will 
 was first authorized by Act 121, P. A. 1897. 
 
 This act was declared unconstitutional in Bresler vs. 
 Delray Real Estate, etc., Assoc., 156 Mich., 3. 
 
 Guardians of minors, insane persons, and spendthrifts 
 are authorized to sell the land of their wards when the 
 personal estate is insufficient: 
 
 1. To pay debts. 
 
 2. To pay the expenses incurred by the state 
 or any county for care and maintenance. 
 
 3. When income is insufficient to maintain the 
 ward and his family or to educate him if a minor 
 or his children. 
 
 4. When the court is satisfied that sale will 
 be best for his best interest.
 
 DE FACTO ADMINISTRATOR. 143 
 
 Assuming that a guardian or administrator or execu- 
 tor has been legally appointed, the tests to be applied 
 to such sales are: 
 
 1. Was a license granted by a court having 
 jurisdiction? 
 
 2. If a bond was required, was it given and 
 approved by the Judge of Probate. 
 
 3. Was the oath before sale taken? 
 
 4. Was notice of sale posted in three public 
 places in the ward or town where the land is 
 situated six weeks previous to the day of sale, 
 and notice published once a week for six weeks 
 previous to sale? 
 
 5. Were the premises sold within one year 
 after the license was granted and the sale con- 
 firmed? 
 
 If the facts suggested exist the sale will be sustained. 
 
 If the license is granted by the Probate Court of the 
 proper county it will be sufficient. 
 
 Howard vs. Moor, 2 Mich., 233-4. 
 
 Failure to verify the petition for license will not af- 
 fect the validity. 
 
 Nor failure to properly publish the order for hearing. 
 Wood vs. Monroe, 17 Mich., 238. 
 
 A sale by a de facto administrator has been sustained. 
 Supra.
 
 144 TITLE THEOUGH CHANCERY SALES. 
 
 TITLE THROUGH CHANCERY SALES. 
 
 The Chancery Court is authorized to appoint a special 
 guardian to sell the interest of an infant, idiot, lunatic 
 or other incompetent person. 
 
 Under this section application is made by the general 
 guardian or if none, by the next friend of the incompe- 
 tent, to the court in the county where the incompetent 
 resides if a resident of the state and county where the 
 land lies, if a non-resident of the state. This require- 
 ment is jurisdictional. 
 
 The special guardian must give a bond not only to 
 account and pay over the proceeds but also for the faith- 
 ful performance of his trust. 
 
 536 Comp. Laws, 1897. 
 
 The bond is jurisdictional and the court has no power 
 to waive it. 
 
 Blanchard vs. Blau, N. Y. Sup., 418. 
 
 Tne court has no power to order a sale in contraven- 
 tion of the terms of will through which the incompetent 
 derives title. 
 
 541 Comp. Laws, 1897. ^ 
 
 Prior to the amendment of 1883 the statute applied 
 to infants only and did not include insane and other in- 
 competent persons. 
 
 It is doubtful whether under this statute the interest 
 of a spendthrift can be sold.
 
 TITLE THKOUGH EXECUTION SALES. 145 
 
 The adjudication that he is a spendthrift only deter- 
 mines that he is unfit to have the care and management 
 of his property. 
 
 Rice vs. Rice, 50 Mich., 448. 
 
 The fact that one is adjudicated a spendthrift does 
 not affect his competency to make a will. 
 
 Supra. 
 
 TITLE THROUGH EXECUTION SALES. 
 
 The points of inquiry where title is derived through 
 execution sale are: 
 
 . 1. Was a judgment or decree legally rendered 
 by a court having jurisdiction of the subject mat- 
 ter and of the person of an owner or part owner 
 of the land? 
 
 2. Was a levy legally made and notice filed in 
 the Register's office describing the land? 
 
 3. Was notice of sale describing the land post- 
 ed in the township or city where the lands were 
 sold six weeks previous to the sale, and if the 
 sale were made in a different town or city than 
 the place where the land is situated, was like 
 notice posted in the same manner in the township 
 where the lands are situated? 
 
 4. Was such notice published once each week 
 for six weeks previous to the sale in a newspaper 
 printed in the county? 
 
 5. Was the sale made at the Court House in 
 the county where the land was situated between 
 9 a. m. and sunset?
 
 146 DOWEE. 
 
 6. Was the land sold in parcels in the order 
 directed by the defendants 1 
 
 7. Was the purchaser disqualified from pur- 
 chasing? 
 
 8. Was a certificate of sale recorded within 
 ten days after sale? 
 
 9. Was the sale made within ten years after 
 entry of judgment or decree? 
 
 10. Was the sale made within five years after 
 making the levy? 
 
 11. Has the time for redemption expired with- 
 out being exercised? 
 
 12. Was a deed made and within ten years 
 after the expiration of redemption? 
 
 The failure of the sheriff to give notice of the sale in 
 the statutory manner suggested will not invalidate the 
 title of a purchaser in good faith. 
 
 9173 Comp. Laws, 1897. 
 
 Since September 28th, 1889, under 9224 Comp. Laws, 
 a levy is superior to the rights of prior grantee or mort- 
 gagee whose instruments are not recorded prior to the 
 filing of the notice of levy in the Register's office. 
 
 Actual notice afforded by possession will protect such 
 an owner or lienor against the operation of this statute. 
 
 DOWER. 
 
 It must be remembered that no execution, probate or 
 other judicial sale of the husband's interest in real es- 
 tate will affect the wife's dower.
 
 TITLE BY PARTITION. 147 
 
 Dower can only be released in the manner provided 
 by the statute. It cannot be transferred to a third per- 
 son while inchoate. 
 
 Gailbraith vs. Fleming, 60 Mich., 408. 
 
 Under the statute and case cited it would seem to be 
 the rule of law that speculation in an estate in dower is 
 prohibited and that the estate is inalienable except to 
 one who holds the fee title until after the death of the 
 husband and the assignment of the interest to a specific 
 parcel of land. 
 
 TITLE BY PARTITION. 
 
 Under the Michigan laws the Probate Court and the 
 Chancery Courts are given jurisdiction over partition. 
 
 Voluntary partitions between common owners have 
 always been recognized in Michigan, New York and 
 Wisconsin. 
 
 Michigan has sustained a voluntary partition as 
 against an incompetent person when consented to by his 
 guardian. 
 
 Hunt vs. Eabitoay, 125 Mich., 137. 
 
 In some states a voluntary partition is held void un- 
 der the statute of frauds ; such is the rule in Illinois. 
 
 But in that state where common owners have each 
 conveyed specific parcels of the common land to others, 
 the court has, when the transaction is followed by a 
 considerable lapse of time, presumed a lost writing. 
 Marke vs. Wakeman, 107 III., 251.
 
 148 PROBATE PARTITION. 
 
 Recitals in ancient deeds have been held sufficient evi- 
 dence of a voluntary partition where followed by pos- 
 session. 
 
 Hunt vs. Rdbitoay, supra. 
 
 The most conclusive authority for the rule that where 
 the tenants in common have conveyed specific parcels 
 of the common land in severalty, the deeds are evidence 
 of a voluntary partition, is 
 
 Eaton vs. Talmage, 24 Wis., 217. 
 
 This was an ejectment suit and only a legal title can 
 be shown in such a cause. 
 
 The court lays down the rule : 
 
 1 'Where there are two tenants in common, each 
 owning an undivided half of land, neither can 
 make a partition that will be binding on the oth- 
 er by assuming to convey either half specifically. 
 But if one does so convey the other would be at 
 liberty to acquiesce and accept the remaining 
 half, and if he should do so by conveying that 
 specifically, the two conveyances would operate 
 as a complete and binding partition." 
 
 This decision seems to be founded upon good sense 
 and the principle will often be involved in the old 
 French titles in this locality, particularly up the shore 
 of Lake St. Glair and in Macomb and St. Glair counties. 
 
 PROBATE PARTITIONS. 
 
 When title comes through a probate partition the in- 
 quiries are:
 
 PARTITION IN CHANCERY COURT. 149 
 
 1. Has the court made an order assigning the 
 residue ? 
 
 2. Has notice been given in the manner direct- 
 ed by the court? 
 
 3. Have guardians been appointed for all 
 minors or incompetents and agents for all heirs, 
 non-residents of the state? 
 
 4. Has notice been given to all interested by 
 the commissioners of the time and place the par- 
 tition is to be made? 
 
 5. Have the commissioners filed their report 
 and has it been confirmed? 
 
 PARTITION IN THE CHANCERY COURT. 
 
 This proceeding is purely statutory and governed by 
 Chap. 304, Comp. Laws, 1897. v fr~tt "r-s 
 
 It can only be maintained by a person who has an 
 estate in possession. 
 
 The bill must be verified. 
 
 General guardians represent their wards. 
 
 Every person having an interest in the premises, 
 whether in possession or otherwise, and every person 
 entitled to dower should be parties, also mortgagees 
 and other lienors. 
 
 The proceedings to bring in a non-resident or un- 
 known party differs from the ordinary chancery prac- 
 tice. The order for appearance is a three months ' order 
 and the order must contain a description of the land. 
 
 $11023 Comp. Laws, 1897.
 
 150 PARTITION IN CHANCERY COURT. 
 
 The commissioners appointed must give notice of 
 their meeting to the parties interested. 
 
 Simpson vs. Simpson, 59 Mich., 71. 
 
 All the commissioners must meet together but the 
 act of a majority will be valid and binding. 
 
 Jurisdiction of the person by service of process or 
 service or publication of a proper order and notice by 
 the commissioners are undoubtedly essential to a valid 
 partition. 
 
 Dower is not affected unless the wife is made a party. 
 Griener vs. Klein, 28 Mich., 12. 
 
 Most partitions are brought because of the incapacity 
 of a minor or insane tenant to consent to an amicable 
 division. Suit in such a case is unnecessary. The gen- 
 eral guardian of a minor or insane person can petition 
 the court exparte for leave to agree to the partition 
 and with the approval of the court convey his ward's 
 interest in return for a conveyance to his ward of a 
 proper portion of the common premises by the other 
 tenants. 
 
 >84, 11087, 11088, 11090 Comp. Laws, 1897. 
 
 The inquiries I have suggested are only to guide you 
 in recent transactions. 
 
 A title might involve every principle I have pointed 
 out and fail under each of the suggested tests when ap- 
 plied, and because of adverse possession be unassailable 
 and legally marketable.
 
 ABSOLUTE IMPARTIALITY. 151 
 
 Either examiners of titles must pronounce that title 
 marketable which cannot be successfully assailed in 
 the courts, or the abstract and the lawyer must be elimi- 
 nated in the transfer of lands and a substitute found 
 that will not be an obstruction to business. 
 
 I have suggested some of the leading principles of the 
 subject of conveyancing and attempted to illustrate 
 their practical application in the examination of land 
 titles. With this introduction to the subject I wish to 
 say in conclusion: 
 
 In the practice of conveyancing, parties with hostile 
 interests will seek your service in the same transaction. 
 Often one is a client and the other a stranger without 
 other counsel. Under such circumstances your position 
 is not that of a partisan. The ethics of your profession 
 require, and common honesty demands that you act with 
 absolute impartiality and guard the interests of the 
 stranger with the same zeal that you look after the 
 rights of your client. Do for the stranger what you 
 would do for your client were their positions reversed. 
 There is no other course; there is no excuse for any 
 other or different action.
 
 INDEX. 
 
 ABSOLUTE FEE 
 
 conveyance of an, 95 
 
 donee takes an, 89 
 ABSTRACTS OF TITLE 
 
 estate for life as to, 88 
 
 tenant for life as to, 89 
 ABSTRACTS OF TITLE 
 
 examination of, 114 
 
 land contract as to, 107 
 
 memorandum of sale as to, 105 
 ACCUMULATIONS 
 
 express trust for, when, 96 
 
 married woman as to, 86 
 
 rents and profits as, 83 
 ACKNOWLEDGMENT 
 
 consular agents taking, 76 
 
 contents of, 72 
 
 deed as to, 12 
 
 execution in another state as to, 75 
 
 officer of a corporation can take, 73 
 
 requisite of recording laws is the, 71 
 ACQUAINTANCE OF OFFICER 
 
 certificate of acknowledgment contains, 72 
 ACTION 
 
 defense to an, upon covenants, 57 
 ACTION FOR BREACH OF COVENANTS 
 
 tax as to, 14 
 ACTUAL POSSESSION 
 
 northwest territory's owners of land by, 33 
 ADMINISTRATOR 
 
 recital in deed to a person as, 20 
 ADVERSE POSSESSION 
 
 state as to, 42 
 AFFIRMANCE 
 
 infant may make, 15 
 AFTER-ACQUIRED TITLE 
 
 quit-claim never passes an, 52 
 
 warranty deed passes an, 52 
 AGENT 
 
 notice to, is notice to principal, 79 
 ALIEN 
 
 operative word in a deed is, 26 
 
 premises as to, 11 
 ALIENABILITY 
 
 rules of, 97 
 ALIENATION 
 
 estates in land, 82 
 
 powers of, incapable, when, 88 
 
 suspended, when, 95 
 
 suspension of, 50 
 
 trust for a term of years is void, 98
 
 2 INDEX. 
 
 ALLOTMENT BY THE BARONS 
 
 inferiors to get, 2 
 ALTERNATIVE ESTATES 
 
 creation of, 83 
 ANCIENT CONVEYANCES 
 
 precaution of, 27 
 ANNUITY 
 
 p.ayment of, from rents and profits, 99 
 ARPENT 
 
 definition of, 34 
 ARSENAL GROUND 
 
 land known as, 35 
 
 location of, 36 
 ARTIFICIAL MONUMENTS 
 
 local inquiries as to, 37 
 ASKIN FARM 
 
 location of, 35 
 ASSIGNMENT 
 
 land contract as to, 107 
 
 possession of land by, entitling one to rents and profits, 84 
 
 prohibition of the life tenant to make, 89 
 
 rents and profits in, of a trust, 96 
 ASSIGNMENT OF TRUSTS 
 
 trustee cannot make them an, 87 
 ASSIGNS 
 
 words of limitation in deeds as, 23 
 ASSUMED NAMES 
 
 trade names as, 22 
 ASSURANCES 
 
 covenant of further, 54 
 ATTORNEY 
 
 fee of, as a covenant in a mortgage, 100 
 
 knowledge of, imputed to client, 79 
 AUCTION 
 
 covenant in a mortgage regarding sale at, 101 
 BARGAIN 
 
 operative word in deed is, 26 
 
 premises as to, 11 
 BARGAIN AND SALE 
 
 deed as to, 4 
 BARONS 
 
 vassal to the king, 2 
 BASE LINES 
 
 establishment of, 29 
 BEAUBIEN FARM 
 
 location of, 37 
 BENEFICIAL INTEREST 
 
 expressed trust as to, 86, 96 
 
 passing of, for benefit of creditors, 91 
 BENEFICIAL POWER 
 
 definition of, 88 
 
 limitation of, as to their validity, 90 
 
 married woman as to, 89 
 BENEFICIARIES 
 
 interest in land by. 85 
 BENEFIT OF CREDITORS 
 
 express trust for, 96 
 
 sale of land for, 85 
 BILL IN EQUITY 
 
 compelling conveyance by, 85
 
 INDEX. 
 
 BLACKSTONE'S COMMENTARIES 
 
 classification of conveyance, 5 
 
 designation in, as to facts of a deed, 10 
 
 statements in, 4 
 BONA FIDE PURCHASER 
 
 deed without convenants as to, 52 
 
 knowledge of prior defects as to, 79 
 
 notice of prior deed as to, 79 
 BONDS 
 
 interest on, 101 
 BOUNDARIES 
 
 meander lines as to, 44 
 BREACH OF COVENANTS 
 
 action for, 14 
 
 lease for, 103 
 
 remedy for, 62 
 
 visible servitude is a, 57 
 BREACH OF CONDITION 
 
 estate as to, 49 
 BUILDING LINE 
 
 restitution regarding, 65 
 BUILDING RESTRICTIONS 
 
 covenants as to user of land in, 61 
 BRUSH FARM 
 
 location of, 35 
 BY-LAWS 
 
 execution covered by, 24 
 CASS FARM 
 
 location of, 35 
 CESTUI QUE TRUSTENT 
 
 designation as, 4 
 
 estate in land of, 87 
 CHAINS AND FEET 
 
 terms used in measurement as, 35 
 CHANCERY COURT 
 
 authorization of, as to sales of land, 144 
 
 title in a sale through, 144 
 CHARGE D'AFFAIRS 
 
 acknowledgment bv, 76 
 CHARITABLE TRUS'TS 
 
 permission of, in perpetuity, 99 
 CLAIM 
 
 creditors impress on land to cover, 85 
 
 possession under, of title, 54 
 CLAIMANT 
 
 frontage on water in possession by, 34 
 CLERK 
 
 taking acknowledgments by, 74 
 CLIENT 
 
 knowledge of attorney binds, 79 
 COMMERCIAL LEASES 
 
 reservations in, 104 
 COMMISSIONER OF COURT 
 
 taking acknowledgment by, 74 
 COMMON LAW 
 
 acknowledgment of, deed, 13 
 
 gantor cannot deed to himself at, 15 
 
 middle names in deeds at, 18 
 COMPASS 
 
 use of, in surveys, 32
 
 4 INDEX. 
 
 COMPUTATION OF TIME 
 
 date of instrument creating power is the one in, 94 
 CONCLUSIONS 
 
 deeds as to, 12 
 
 execution and date are the, 66 
 CONDITION 
 
 alienation as a, 49 
 
 covenants as, 49 
 
 deed as to, 12 
 
 enforcement of, 49 
 
 forfeiture of, 49 
 
 illegal acts as to, 49 
 
 power of alienation as to, 50 
 
 precedent and subsequent are, 48 
 
 provided always this grant is upon, 48 
 CONDITIONAL LIMITATIONS 
 
 definition of, 49 
 CONFIRM 
 
 operative word in a deed is, 26 
 
 premises as to, 11 
 CONFIRMATION 
 
 deed as to, 26 
 
 definition, 34 
 CONSENT OF THIRD PERSON 
 
 execution of, same as conveyance, 93 
 CONSIDERATION 
 
 deed as to, 8 
 
 early conveyance as to, 4 
 
 necessity for, in deeds, 24 
 
 one dollar and other valuable, 25 
 
 payment of, by another, 85 
 
 premises as to, 11 
 
 receipt of, in deeds, 25 
 
 third parties as to, 24 
 
 written contract as to, 25 
 CONSTRUCTIpN AND INTERPRETATION 
 
 acts of parties showing their understanding affects, 39 
 
 boundary a question of fact in, 40 
 
 building restriction as to, 63 
 
 clause showing intent controls a general description in, 39 
 
 facts at time of delivery, 39 
 
 grantor's rights in, 40 
 
 intent of parties in, overcome all arbitrary rules, 40 
 
 intention of parties in, 39 
 
 land-marks and monuments control courses and distances, 39 
 
 particular description following a general one, the former gov- 
 erns, 39 
 
 permanent monuments control artificial ones in, 39 
 
 rejection of no part of the deed affects, 39 
 
 rules for, of deeds, 38 
 CONSUL 
 
 acknowledgments by, 76 
 CONSULAR AGENT 
 
 acknowledgment by, 76 
 CONTRACT 
 
 consideration in deed not fact of the. 25 
 
 definition of, 25 
 
 covenant synonymous with, 52
 
 INDEX. 
 
 CONTRACT Continued 
 
 identification of either fact, 6 
 
 memorandum of sale as to a, 105 
 
 mention of a, in a deed, 41 
 
 option is a, 106 
 CONTRACT OF BARGAIN AND SALE 
 
 deed as a, 4 
 CONTRACT OF RECOVERY 
 
 mortgage as a, 81 
 CONTINGENCY 
 
 estate of person determined by, 82 
 CONTINGENT REMAINDER 
 
 creation of, 82, 95 
 
 prior remainder as to, 50 
 
 prohibition in the creation of, 83 
 CONVERGENCE OF MERIDIANS 
 
 inequality of sections caused by, 31 
 CONVEYANCE 
 
 clause in a, creates a power, 92 
 
 legal disaster in a, 94 
 
 origin of title through, Iz 
 
 seal as to, 67 
 
 title through, 124 
 CONVEY AND WARRANT 
 
 deed as to, 8 
 CORPORATIONS 
 
 cestui que trustent as, 4 
 
 deeds as to, 23 
 
 time of execution in, 24 
 
 existence of, perpetual, 3 
 
 lands held by, 3 
 
 recital in deed of name of, 23 
 
 seal of, attesting the deed, 24 
 
 statutes as to, 24 
 
 prohibiting holding of land by, 3 
 
 strife of, with legislative power, 4 
 COURSES AND DISTANCES 
 
 land described by, 32 
 COURT OF EQUITY 
 
 enforcement of oral agreements in, 9 
 
 execution of power by, 91 
 
 party of interest in, 23 
 
 defective execution of a power remedied in, 94 
 COVENANT OF SEIZIN 
 
 breach of, when, 55 
 COVENANT OF QUIET ENJOYMENT 
 
 words of the, 57 
 COVENANT OF WARRANTY 
 
 breach of, 58 
 
 quiet enjoyment synonymous with, 58 
 
 words of, 58 
 COVENANTS 
 
 assent of grantee to, 53 
 
 condition of, not enforcible when benefits cease, 62 
 
 creation of, 53 
 
 deed as to, 12 
 
 definition of, 52 
 
 effect of, limited to land described, 54 
 
 further assurances as a, 54 
 
 husband and wife as to, 44 
 
 incumbrances as, 54
 
 6 INDEX. 
 
 COVENANTS Continued 
 
 knowledge of circumstances no defense to action on, 57 
 
 land conveyed covered by, 59 
 
 lease contains a, 103 
 
 quiet enjoyment as a, 54 
 claim as to, 52 
 
 remedies for a breach of, 61 
 
 restrictions as, 49 
 
 right to convey as a, 54, 55 
 
 seizin as a, 54 
 
 several, in one sentence, 53 
 
 statutes imply, 53 
 
 warranty as a, 54 
 COVENANTS AGAINST INCUMBRANCES 
 
 date of delivery as to, 14 
 
 words of, 56 
 COVENANTS AS TO USER OF LAND 
 
 building restrictions as to, 61 
 COVENANTS OF MORTGAGES 
 
 payment of money in, 100 
 COVENANTS RUN WITH THE LAND 
 
 warranty and quiet enjoyment are, 59 
 CREDITORS 
 
 claims of, subjected to special and beneficial powers, 90 
 
 claim of, impressed on the land, 85 
 
 court in chancery compels execution of power in trust for bene- 
 fit of, 91 
 
 deed is dc<-med absolute against subsequent, 87 
 
 express trusts for the benefit of, 96 
 
 recital in a deed as to, of deceased persons, 20 
 
 rights of, with reserved powers, 89 
 grantors as to, 24 
 surplus of rents and profits, 86 
 
 sale of land for the benefit of, 85 
 DAMAGES 
 
 action of, for breach of covenant, 62 
 
 liability for, by landlord, 104 
 DATE 
 
 acknowledgment of deed as to, 13 
 
 certificate of acknowledgments contain, 72 
 
 deeds at common law, 13 
 statutory,13 
 
 delivery of deed, 13 
 
 tax paid by grantor, 14 
 
 execution of deed, 13 
 
 expiration of commission, 72 
 
 premises of deeds as to, 11 
 
 time of alienation may be suspended by a power is the, when, 94 
 
 creation of power is the, 97 
 DEEDS 
 
 acceptance of, by grantee binding, 53 
 
 acknowledgment of, 71 
 
 alternative, sustained, Rule 20 
 
 assurance synonymous with, 60 
 
 care in the spelling of names in, 17 
 
 cession in a, from Virginia, 33 
 
 common law identity of names in, 18 
 
 conclusions as to, 12 
 
 condition as to, 12, 48
 
 INDEX. / 
 
 DEEDS Continued 
 
 consideration in, 24 
 
 construction and interpretation of, 38 
 
 will, 71 
 contents of, 8 
 
 delivering, intended to be effective at grantor's death, 71 
 conveyance by, 6 
 
 all the estate grantor has, 28 
 corporation in, 23 
 covenants as to, 12, 52, 61 
 
 incumbrances, 56 
 
 quiet enjoyment in, 57 
 
 seizin, 54 
 
 unnecessary to be, 52 
 
 warranty in, 58 
 creditors of grantors as to, 24 
 defective, because of uncertainty, 23 
 definition by Blackstone, 5 
 
 Washburn, 5 
 delivery of, beyond recall necessary, 69, 70 
 
 third person for grantee passes title though a, is later, 70 
 description in 28, 41 
 designation of grantor in, 15 
 distinction between void and voidable, 15 
 early history of, 4 
 effect of unrecorded or unacknowledged, 41 
 
 essential matter remains, not vitiated, 40 
 entry book as to, 78 
 essential to validity, 3 
 execution by grantor only, 7 
 explanation of covenants in, 52 
 father and son with same initials in, 18 
 formal written contract is a, 5 
 grantor and grantee in every, 14 
 
 as trustee, 20 
 habendum, 45 
 
 fee simple, etc., 11 
 husband and wife as to, 44 
 identity by their indentures, 7 
 infant cannot make, 15 
 insane person cannot execute a, 15 
 joint tenancy, 21 
 kinds of, in Michigan, 6 
 legal effect of, with covenants, 52 
 limitations in, 23 
 maps and plats mentioned in, 40 
 
 money payment for, to third person, constitutes delivery, 70 
 mortgages as, 81 
 name in the, 18 
 
 passing title, 20 
 operative words in, 26 
 origin of, 5, 6 
 partition as to, 7 
 partners in grantee's, 22 
 parts of, in Blackstone, 10 
 
 party with control of, is essential element of delivery, 70 
 possession by grantor after delivery of, hazardous, 81 
 premises contain consideration of, 11 
 
 date in, 11 
 
 description of the land as to, 11 
 
 fee or less than fee as to, 11
 
 8 INDEX. 
 
 DEEDS Continued 
 
 grant, bargain, sell, release, alien and confirm as to, 11 
 parties as to, 11 
 
 presumption that similar sounding names are the same person in, 
 17 
 
 proof when person is known by two names in, 18 
 
 purchaser has relief under his covenants, 16 
 
 receipt of consideration in, 25 
 
 recitals accepted as their, 16 
 covenant, when, 53 
 former name of married woman, 19 
 married or single, 16 
 occupation as to, 20 
 
 recording of, 13 
 
 prima facie evidence of delivery, 69 
 
 reddendum in, 12, 46 
 
 reference to another deed, 41 
 
 restriction in, 61 
 
 retaining of, by grantor invalidates the instrument, 70 
 
 seal as to, 12, 67 
 
 signature as to, 12, 53 
 
 signing as to, 66 
 
 subsequent purchaser recording his, first, 77 
 
 suspending effect of, during lifetime of grantor, 70 
 
 temporary filing of, 76 
 
 tenendum in, 12, 46 
 
 trade name, void because of uncertainty, 22 
 
 trust expressed in, void when, 87 
 
 not contained in conveyance, deemed absolute, 87 
 
 validity does not depend on what in a, 16 
 
 variance in name or initial in, 18 
 
 witnesses in, 12, 68 
 DEEDS AND MORTGAGES 
 
 execution and recording of, as a conveyance, 92 
 DEEDS OF RELEASE 
 
 common law as to, 9 
 DEEDS POLL 
 
 common law as to, 6 
 
 date of a deed as to, 11 
 
 origin of, 6 
 DEFAULT 
 
 land contract as to, 107 
 
 tenant is in, as to lease, 103 
 DEFENSE OF THE TITLE 
 
 covenant as to, 12 
 DEFICIENCIES IN THE RECORD 
 
 entry book as to, 78 
 DELIVERY 
 
 date of, of deed, 13 
 
 quit-claim deed as to, 52 
 
 grantor remains in possession after, 80 
 
 necessity for, 69 
 
 patents of land as to, 71 
 
 statute of limitations runs from, 55, 56 
 
 unconditional, to a third person is escrow, 70 
 DESCENT 
 
 laws of, 133 
 DESCRIPTION 
 
 arpent as a basis of, 34 
 
 certainty of, 37 
 
 courses and distances in, 32 
 
 deed as to, 8 
 
 extrinsic evidence as to, 36
 
 INDEX. 
 
 DESCRIPTION Continued 
 
 failure to designate state and county in, 38 
 
 front and rear concessions, 34 
 
 indefinite, explained, 38 
 
 land board as to, 33 
 
 lazy man's, 36 
 
 premises as to, 11 
 
 private claims as to, 33 
 
 purpose of, in deeds, 28 
 
 sufficiency of, granting all the land of a person, 38 
 DESIGNATED BENEFICIARIES 
 
 power in a trust is imperative in, 91 
 DEVICE OR SCROLL 
 
 effect of, 67 
 DEVISE 
 
 distinct parcels of land by, to three different daughters, 99 
 
 executor or trustee is not authorized to receive rents and profits 
 in a, when, 86 
 
 husband and wife take by entirety, 21 
 
 possessor of land by, entitles one to rents and profits, 84 
 
 power is created by a, 92 
 
 words of inheritance as to, 46 
 DISCRETIONARY POWER 
 
 execution of, 91 
 DISPOSITION OF LAND 
 
 right of possession as to, 84 
 DISQUALIFICATION 
 
 notary's interest in transaction, 73 
 DONEE 
 
 grant by, of a power in excess of authority, 93 
 DOWER 
 
 breach of covenant against encumbrances is an outstanding right 
 of, 56 
 
 effect on, 146 
 DRAFTING OF CONVEYANCES 
 
 instructions in, 110 
 DUPLEX FLAT 
 
 restrictions regarding, 64, 65 
 EARLY SETTLERS 
 
 narrow strips of land held by, 34 
 EASEMENT 
 
 breach of covenant against encumbrance is an, 56 
 
 specific mention of, 43 
 
 visible, affecting a covenant against encumbrances, 57 
 EDUCATIONAL TRUST 
 
 permission of, in perpetuity, 99 
 EIGHTH LINES 
 
 definition of, 31 
 EJECTMENT 
 
 equitable title as to, 23 
 ENCUMBRANCES 
 
 any right vested in a third person is an, 56 
 
 breach of the covenant against, 56 
 
 covenant against, 56 
 
 two kinds of, 57 
 ENTIRETY 
 
 husband and wife are tenants by the, 21 
 EQUITABLE CONVERSION 
 
 power of sale amounts to, when, 98 
 EQUITABLE TITLE 
 
 dower at common law attached to an, 110 
 
 law courts do not recognize, 23
 
 10 
 
 INDEX. 
 
 ESCROW 
 
 delivery of deed in, 70 
 ESTATES 
 
 contents of, 20 
 estate for life 
 
 absolute power of disposition in, 88 
 habendum as to, 11 
 estate for years 
 
 habendum as to, 11 
 estate in expectancy 
 
 creation of, 83 
 estate in fee 
 
 corporation as to, 23 
 estate in fee simple 
 
 habendum as to, 11 
 estate in land 
 
 cestui que trustent as to, 87 
 estate in real property 
 
 suspension of alienation in, 82 
 estate limited 
 
 habendum as to, 45 
 estate less than fee 
 
 power as to an, 88 
 estate of trustee 
 
 title of, connected with power or disposition, 84 
 ESTOPPEL 
 
 owner of restricted land is estopped, when, 64 
 EXAMINATION OF TITLES 
 
 instructions as to, 114 
 EVICTION 
 
 breach of covenants by , 58 
 EVIDENCE 
 
 admission of instrument as, 77 
 extrinsic, may be resorted to, 36 
 parol, as to consideration, 25 
 person in deeds known by two names, 18 
 possession of deed is, of delivery, 69 
 recitals are not, 16 
 recording of deed is, of delivery, 76 
 transcript of record of conveyance read in, 77 
 note is, of indebtedness, 101 
 EXCEPTION TO THE GRANT 
 
 reservations compared with, 47 
 EXECUTION 
 
 corporation as to, 24 
 
 deed on same footing as, levy, 78 
 
 evidence as to, 77 
 defect in, of a deed, 81 
 powers 
 
 creation of estate under the, 94 
 
 donor prohibited from dispensing with statutory require- 
 ments in, 9 
 
 proof of, of a deed, 12 
 title through, sale, 145 
 mandate as to, 92 
 EXECUTORY CONTRACTS 
 sale of land by, 77 
 words of inheritance as to, 4f> 
 EXECUTORY CONTRACTS OF SALE 
 contents of. 107
 
 INDEX. 11 
 
 EXPECTANT ESTATES 
 
 prohibition of, 83 
 
 release power to, by life tenant, 90 
 EXPRESS TRUSTS 
 
 creation of, how, 96 
 
 statutes relating to, applicable to powers, 91 
 
 purposes cease when, 88 
 EXTINGUISHMENT OF POWER 
 
 release by life tenant operates as an, when, 90 
 FACT OF ACKNOWLEDGMENT 
 
 certificate of acknowledgment contains, 72 
 FACTORY 
 
 restrictions regarding a small, 65 
 FAILURE OF THE TRUST 
 
 land goes to whom on, 87 
 FATHER AND SON 
 
 condition as to support, 12 
 FEE 
 
 allotment by barons, 2 
 
 city streets as to the, 41 
 
 contingent remainder as to, 50 
 
 estate in, absolute when, 88 
 
 grantor's covenant as to, 12 
 
 king to hold the, 2 
 
 possession as to the, 82 
 
 power merged into a, 95 
 
 owner of, conveying a part, 61 
 FEE SIMPLE 
 
 habendum as to, 11 
 
 covenant as to, 54 
 
 deeds of land in, 110 
 
 grant to a corporation resulting in a, 45 
 
 grant to a trustee, 45 
 
 inflexible, 28 
 FEOFFMENT 
 
 oral testimony, 3 
 
 original conveyance as, 3 
 FEUDAL SYSTEM 
 
 conveyances under, 1 
 
 corporation in, 3 
 
 defended upon the armed array, 3 
 
 introduction in England, 2 
 
 oral declaration, 2 
 
 preservation of, 3 
 
 warranty was an incident of every grant under the, 53 
 FIRE ENGINE HOUSE 
 
 restrictions regarding, 64 
 FLAT 
 
 restrictions as to, 64 
 FORECLOSURE IN EQUITY 
 
 attorney fee proved in, 101 
 
 chancery suit is a, 130 
 FORECLOSURE OF MORTGAGE 
 
 contents of, 128 
 
 title through, 128 
 FORECLOSURE OF CONTRACTS 
 
 forfeiture by, 108 
 FOREIGN COUNTRIES 
 
 deeds executed in, 75 
 FORFEITURE 
 
 land contract as to, 107
 
 12 INDEX. 
 
 FORFEITURE OF FEE 
 
 baron to his king, 2 
 FORGERY IN A DEED 
 
 chattel mortgage as to, 6 
 FORMALITIES IN THE EXECUTION 
 
 ignoring of, when, 93 
 FRAUD 
 
 deed by, is void, 15 
 FREE ACT AND DEED 
 
 acknowledgment is a declaration that the execution was his, 71 
 FRONT AND REAR CONCESSIONS 
 
 acts of congress known as, 34 
 FIELD NOTES 
 
 definition of, 31 
 FURTHER ASSURANCES 
 
 covenant of, 54, 49 
 
 words of, 59 
 FUTURE ESTATES 
 
 creation of, void, when, 83, 95 
 
 creditors and purchasers as to, 88 
 
 vesting of, remainders, 97 
 GENERAL DESCRIPTION 
 
 sufficiency of, 38 
 GOVERNMENT 
 
 definition of. lots, 31 
 
 landmarks were set by the, survey, 30 
 
 original owner as to, patents, 33 
 GOVERNOR AND JUDGES' PLAN 
 
 land known as, 35 
 
 location of, 35 
 GRANT 
 
 distinction from confirmation, 34 
 
 former definition, 27 
 
 grantee takes, in own name consideration being paid by another, 
 85_ 
 
 operative word in deed is, 26 
 
 possession from a, entitled grantee to rents and profits, 84 
 
 p.remises as to, 11 
 
 reservations repugnant to, 48 
 
 sufficiency of description in a, of all lands owned by a person, 38 
 
 voidable deed passes the title in the, 15 
 GRANTEE 
 
 acceptance by, is presumed, 69 
 
 capacity of, in deeds, 19 
 
 covenants by, enlorcible, 53 
 
 deed has a, 14 
 
 description of, 19 
 
 obligations effecting, 16 
 
 party of the second part, 15 
 
 prior notice as to, 79 
 
 riehts are not acquired by, in a void deed, 15 
 
 tenants in common as to, 21 
 
 trustee recited in deed, 20 
 
 use of the purchase as to, 4 
 GRANTOR 
 
 covenants as to, 12 
 
 conveyance cannot be made to himself, 15 
 
 deed has a, 14 
 
 deeds designate, 15 
 
 delivery must be made by, 69
 
 INDEX. 13 
 
 GRANTOR Continued 
 
 intention of, 49 
 
 name not in the deed, 18 
 
 notice to, of institution of suit, 59 
 
 notice to grantee is not notice to. SO 
 
 obligations effecting, 16 
 
 parting with control of deed by, 70 
 
 possession of, after delivery, 80 
 
 presence of, 72 
 
 reservation to, of any power he could grant to another, 92 
 
 rights of, beyond the street line, 42 
 GREAT LAKE 
 
 bed of, title in people, 42 
 
 land bordered on, 31 
 GROSS 
 
 definition of, 87 
 GUARDIANS 
 
 authorization of, to sell lands when, 142 
 HABENDUM 
 
 deed as to, 11 
 
 devise in a will as to, 46 
 
 executory contract as to, 46 
 
 grant to a corporation in, 45 
 
 heir in, 45 
 
 intent of parties, 45 
 
 limitation of estate in, 45 
 
 trustee accepts a grant in, 45 
 HEIR 
 
 recital in a deed as to, 20 
 
 word of limitation as to, 23, 27 
 HIGH WATER MARK 
 
 rule as to title to land by, 42 
 HISTORICAL INTRODUCTION 
 
 feudal system, 1, 2 
 
 public delivery, 2 
 HOMESTEAD ENTRIES 
 
 public domain as to, 29 
 HUSBAND AND WIFE 
 
 deed runs to several two of whom are, 22 
 
 disqualification as witnesses of deeds, 68 
 
 estates by entirety, 22 
 common, 22 
 
 jointure in deed of, as to title of either, 44 
 
 tenants by entirety, 21 
 INDENTIFICATION 
 
 requirement of, in acknowledgments, 72 
 IMPLIED TRUST 
 
 defect of title in, 85 
 IMPROVEMENTS 
 
 effect on title by. 9 
 INCHOATE DOWER 
 
 married woman as to, 61 
 INCUMBRANCES 
 
 covenants as to, 12 
 against, 54 
 
 land contract as to, 107 
 INCOMPETENT PERSONS 
 
 guardian of, to sell lands, when, 144 
 INDENTURE 
 
 common Jaw as to, 6 
 
 definition of, 6
 
 14 INDEX. 
 
 INFANTS 
 
 grantees as, 19 
 INFLAMMABLE OR COMBUSTIBLE MATTER 
 
 accumulation of, 104 
 INFERIORS OR VASSALS 
 
 allotment of lands to, 2 
 INHERITANCE 
 
 title through, 132 
 INJUNCTION 
 
 effective remedy is, for threatened breach of covenant, 6i 
 INLAND LAKES 
 
 bordered upon, 31 
 
 ownership of bed of, 42 
 INSANE PERSONS 
 
 grantees as, 19 
 
 guardians of, to sell land, when, 142 
 INSOLVENCY OF TENANT 
 
 covenant in a lease as to, 104 
 INSTRUMENT 
 
 defects in, 81 
 
 effect of, to pass title, 52 
 
 entry book as to, 78 
 INSURANCE 
 
 covenants in mortgages as to, 100 
 
 clause in lands contracts as to, 107 
 
 instrument shows, 27 
 INTENTION 
 
 recital in deed showing, 28 
 
 words evidencing an, are sufficient, 53 
 
 power shall be observed as to, of donor, 93 
 
 reservation to a stranger as to, 47 
 
 saving and reserving as to, 48 
 INTEREST 
 
 bonds bear, 101 
 
 covenant in mortgage as to, 101 
 
 rules of construction overcome by, 40 
 INTERPRETATION 
 
 rules of, of deeds, 38 
 INTERPRETER 
 
 acknowledgments by, 73 
 INTRODUCTION 
 
 requirement of an, to a stranger, 72 
 JOINT TENANCY 
 
 recital in a deed, 21 
 JOINT TENANTS 
 
 common law rule as to, 21 
 JUDGE 
 
 taking acknowledgments by, 74 
 JUSTICE OF THE PEACE 
 
 taking acknowledgment by, 74 
 LAND BOARD 
 
 proof of title before the, 33 
 LAND CONTRACTS 
 
 contents of, 107 
 
 husband and wife take, by entirety in, 21 
 
 parties to, rights of, 108 
 
 recording laws as to, 78 
 LANDLORD AND TENANT 
 
 leases by, 103, 104 
 LAND-MARKS 
 
 government set, 30
 
 INDEX. 15 
 
 LATITUDE 
 
 basis of measurement from, 29 
 LAWFUL TITLE 
 
 eviction under, 58 
 LEASE 
 
 breach of covenant against encumbrances is a, 56 
 
 contents of, 103 
 
 grant for years in, 103 
 LEGAL PRESUMPTION 
 
 deed as to, 13 
 
 identity of same name as grantee and grantor, 17 
 LEGAL TITLE AND A POWER 
 
 trustee may hold the, at the time time, 95 
 LEGATEES 
 
 benefit of, 85 
 
 sell, mortgage or lease land for the benefit of, 96 
 LEVIES 
 
 register to keep books of, 78 
 LIEN 
 
 creation of, by a mortgage, 100 
 LIFE ESTATE 
 
 annuity payable from rents and profits in a, 99 
 
 limitations on, 83 
 
 release of power by tenant in, 90 
 LIMITATION 
 
 alienation shall not be suspended by any, 95 
 
 habendum as to, 45 
 
 life estates as to, 83 
 
 recital in deed snowing, 28 
 LIMITATION OF POSSESSION 
 
 reddendum as to, 12 
 LIMITATIONS, STATUTE OF 
 
 possession larger than the requirements of the, 121 
 LIVERY OF SEIZIN 
 
 delivery takes the place of, 69 
 
 formality of, 9 
 
 qublic delivery as, 21 
 
 unnecessary when, 5 
 LONGITUDE 
 
 basis of ceasurement from, 29 
 LOW WATER MARK 
 
 rule as to title of land under, 42 
 MACOMB FARM 
 
 location of, 35 
 MALFEASANCE 
 
 trustee not responsible for, 87 
 MAP 
 
 mention of, in deed, 40 
 MARKETABLE TITLE 
 
 memorandum of sale as to, 105 
 MARRIED MAN 
 
 wife joins in deed of, 16 
 MARRIED WOMAN 
 
 accumulations for, 85 
 
 beneficial powers of, to dispose of less than fee, 89 
 
 express trust for the benefit of, 96 
 
 limited capacity of a, to make a contract, 60 
 
 time when, reach their majority, 15 
 MASTER IN CHANCERY 
 
 taking acknowledgment by, 74
 
 16 INDEX. 
 
 MAXIM 
 
 that is certain, etc. 23 
 MEANDER LINES AND POSTS 
 
 area of land as to, 32 
 
 boundaries as to, 44 
 MEMORANDUM OF SALE 
 
 contents of frauds as to, 105 
 
 statute of frauds as to, 105 
 MERIDIANS OF LONGITUDE 
 
 basis of measurement from, 29 
 METES AND BOUNDS 
 
 land described by, 28 
 MIDDLE NAME 
 
 consequence of, in deeds, 18 
 MILITARY RESERVE 
 
 land known as, 35 
 
 location of, 36 
 MILITARY TENURE 
 
 lands effected by, 2 
 MILITARY WARRANTS 
 
 public domain as to, 29 
 MINISTER PLENIPOTENTIARY 
 
 acknowledgment of deeds by, 76 
 MINORS 
 
 benefit of, 83 
 
 guardians of, to sell land, when, 142 
 MORTGAGE 
 
 deed subject to a, grantee assumes, 54 
 
 evidence of the security is the, 101 
 
 power of sale in a, passes to assignee, 94 
 bound by, 90 
 
 unpaid at delivery, 56 
 MORTGAGEE 
 
 execution of the power as to, 90 
 MORTGAGES 
 
 contents of, 100 
 
 deeds intended as, 81 
 
 origin of. 100 
 MORTGAGE TAX LAW 
 
 few find fault with, 26 
 MORTMAIN 
 
 statutes of, 1, 23 
 MUNICIPALITIES 
 
 restrictions effectfng, 64 
 MY COMMISSION EXPIRES 
 
 certificate of acknowledgment, 72 
 NAME 
 
 assumed, as to trade-names, 22 
 
 certificate of acknowledgment contains, of grantor, 72 
 
 deed as to, of parties, 8 
 
 derivation of, in early deeds, 18 
 NAVIGABLE OR NON-NAVIGABLE STREAMS 
 
 rule as to title to land under, 42 
 NORMAN ACRE 
 
 distinction from other acres, 35 
 NORMAN CONQUEST 
 
 relation of, to conveyancing, 2 
 NOTARIES 
 
 acts of, anywhere in the state, 73
 
 INDEX. 17 
 
 NOTARY PUBLIC 
 
 interest in transaction will disqualify, 73 
 
 interpreter as to, 73 
 
 officer of a corporation act as a, 73 
 
 official to make acknowledgments as a, 71 
 
 taking of acknowledgment by, 74 
 NOTE 
 
 mortgages are usually accompanied by, 101 
 NOTICE 
 
 defective execution not, 81 
 
 entry book is, even if incorrect, 78 
 
 land contract as to, 108 
 
 possession of grantor after delivery is not, 80 
 
 prior deed as to, 79 
 
 recitals are, of facts stated, 16 
 
 tenant gives, to landlord, 104 
 
 warranty deed as to, 9 
 NORTHWEST TERRITORY 
 
 land known as, 33 
 OATH 
 
 interpreter as to, 73 
 
 ownership of land effected by, 2 
 OCCUPATION 
 
 premises as to, 11 
 OFFICES OF CORPORATION 
 
 action of, as to acknowledgments, 73 
 ONE DWELLING HOUSE 
 
 restrictions as to, 63 
 ONE DOLLAR AND OTHER VALUABLE CONSIDERATIONS 
 
 reason for, 25 
 OPERATIVE WORDS 
 
 ancient conveyances as to, 27 
 
 excepting: as. 48 
 
 grant, bargain, sell, remise, release, alien and confirm are, 26 
 
 premises as to, 11 
 
 saving and excepting as, 48 
 
 words of limitation follow, 27 
 OPTIONS 
 
 contents of, 106 
 ORAL AGREEMENT 
 
 purchaser makes, is binding, 105 
 OUTSTANDING TITLE 
 
 existence of, 58 
 PASSIVE TRUSTS 
 
 abolishment of, 84 
 PARK LOTS 
 
 land known as, 35 
 
 location of, 36 
 
 starting point at, 38 
 PARALLELS OF LATITUDE 
 
 basis of measurement from, 29 
 PARAMOUNT TITLE 
 
 eviction under, 58 
 PARENT 
 
 power granted by, shall be an advancement when, 94 
 PAROL EVIDENCE 
 
 consideration shown by, 25 
 
 legal effect of, to vary a deed, 52 
 
 written contract varied by, 25
 
 18 
 
 INDEX. 
 
 PARTIES 
 
 premises as to, 11 
 
 recitals binding on, 16 
 
 consideration as to, 24 
 
 disqualification of, as witnesses, 68 
 PARTITION 
 
 possession as to, in chancery, 149 
 
 probate court as to, 148 
 
 title through, 147 
 PARTNERS 
 
 deed should name, as grantees, 22 
 PARTY OF FIRST PART 
 
 grantor is the, 15 
 PATENT OF LAND BY THE GOVERNMENT 
 
 delivery is not necessary, 71 
 
 original owner as to, 33 
 PAYMENT OF CONSIDERATION 
 
 premises as to, 11 
 PEOPLE 
 
 vassal to the baron, 2 
 PERPETUITIES 
 
 example of, 10 
 
 limitation as to, 50, 51 
 
 rules of, 97 
 
 suspension of alienation in, 82 
 PERSONAL KNOWLEDGE 
 
 notary certificate based on, 73 
 PHOTOGRAPH GALLERY 
 
 enjoining the erection of, 63 
 PLAT 
 
 fact that is, is not acknowledged or recorded, 41 
 
 mention of, in deed, 40 
 POSSESSION 
 
 expression of, in land contract, 108 
 
 notice of rights by, 80 
 
 right of, 84 
 
 statute of limitations as to, 9 
 
 title by, 121 
 POWER 
 
 assignee entitled to, of sale clause in a mortgage, 94 
 
 clause in conveyance or will creates a, 92 
 
 covenant for, of sale in a mortgage, 101 
 
 date of, is that of the instrument creating it, 93 
 
 device as to, of sale or mortgage, 86 
 
 donee of the, 89 
 
 defective execution of a, remedy in court of chancery, 94 
 
 extinguishment of, 90 
 
 instruction regarding, of attorney, 127 
 
 irrevocability of, when, 92 
 
 recital of, unnecessary, when, 93 
 
 remedy of defective execution of a, in court of chancery, 94 
 
 reservation in, 89 
 
 several persons share alike in, 91 
 
 special, is in trust, when, 91 
 
 statute of, do not apply to power at attorney, 94 
 
 trust distinguished from, 94 
 
 indications of a, 87 
 
 who can hold a, 92
 
 INDEX. 19 
 
 POWER OF ALIENATION 
 
 suspension of, 82, 95 
 POWERS 
 
 abolishment of, 88 
 
 definition of, 88 
 
 extinguishment of, 89 
 
 right to convey as to, 55 
 
 statute of, 50 
 
 uses and trusts as, 84 
 PREMISES 
 
 consideration as to. 11 
 
 deed as to, 11 
 
 description of the property, 11 
 
 divisions of, 11 
 
 parties as to, 11 
 
 words of limitation, 11 
 PRESENCE 
 
 subscribing witnesses in the, of the grantor, 69 
 PRESUMPTIONS 
 
 father and son in deeds as to, 18 
 
 initials and Christian names as to, 17 
 
 subsequent purchase as to, 80 
 PRESUMPTIVE EVIDENCE 
 
 possession of deed is, of delivery, 69 
 
 seal of corporation is, 67 
 PRINCIPAL AND AGENT 
 
 notice to, 79 
 PRINCIPAL MERIDIANS 
 
 establishment of, 29 
 PRIVIES AND PARTIES 
 
 consideration as to, 24 
 PRIVATE CLAIMS 
 
 subdivision of land into, 33 
 PROBATE PARTITION 
 
 title by, 149 
 PROBATE SALES 
 
 title through, 142 
 PROOF AND CIRCUMSTANCES 
 
 presumption as to, 3 
 PROOF OF EXECUTION 
 
 deed as to, 12 
 PUBLIC DOMAIN 
 
 application of, 29 
 PUBLIC POLICY 
 
 restriction in the use of land as to, 61 
 PURCHASER 
 
 purchaser with notice can be a bona fide, 80 
 
 quiet enjoyment and warranty inures to benefit of, 59 
 
 rights of, with reserved powers, 89 
 QUARTER LINES 
 
 land-marks as to, 30 
 QUARTER POSTS 
 
 land-marks as to, 30 
 QUARTER SECTIONS 
 
 origin of, 30 
 QUIT-CLAIM 
 
 action on misrepresentations, 16 
 
 common law form of, 8 
 
 definition of, 8
 
 20 INDEX. 
 
 QUIT-CLAIM DEED 
 
 after acquired title bv, 52 
 
 bona fide purchaser as to, 9 
 
 comparison with warranty deeds, 8 
 
 good faith purchase, as to, 79 
 
 good faith of subsequent (purchaser in, 77 
 
 importance of date in, 14 
 
 ourchaser of. may sue grantor, 59 
 QUIET ENJOYMENT 
 
 covenant of, 54 
 
 lease for, 103 
 
 words of, 57 
 REAL ESTATE 
 
 corporations organized to hold, 23 
 RECEIPT OF CONSIDERATION 
 
 acknowledgment of, in deeds, 25 
 RECITAL 
 
 covenant may be a, in a deed, 53 
 
 corporate name in, 23 
 
 former name of a married woman in, 19 
 
 inchoate dower not barred by, 16 
 
 premises as to, 11 
 
 single man in, 16 
 
 statement of, 11 
 
 strangers bound by ancient, 17 
 
 variance in spelling of names shown in, 17 
 
 third person of consideration, 24 
 RECORD 
 
 deed not entitled to, when, 16 
 
 proof or acknowledgment as to, 13 
 
 title by, 123 
 RECORD TITLE 
 
 possession as to, 80 
 RECORDING LAWS 
 
 each state has, 74 
 
 entry book as to, 78 
 
 patents from the government not within, 78 
 
 powers are within the, 92 
 
 quit-claim deed in, 79 
 
 unrecorded deed between the parties as to, 78 
 REDDENDUM 
 
 deed as to, 12 
 
 easement as to, 47 
 
 reservation as to, 46 
 REDEMPTION 
 
 right of, in land contract, 109 
 REGISTER OF DEEDS 
 
 law requires, to keep entry book, 78 
 RELEASE 
 
 operative word in a deed is, 26 
 
 premises as to, 11 
 REMAINDER 
 
 contingent, created on a prior, in fee, 82 
 fee may be created, how, 95 
 
 creation of, in term of years, 83 
 
 death of two persons as to, 83 
 
 fee as to, 50 
 
 limitation of, 89 
 REMISE 
 
 operative word in a deed is, 26
 
 INDEX. 21 
 
 RENTAL 
 
 payment of, under lease, 103 
 RENTS AND PROFITS 
 
 accumulations of, 83 
 
 application of, to the use of any person, 86 
 
 cestui que trustent, 4 
 
 express trust for, when, 96 
 
 grant giving possession entitles grantee to, 84 
 
 person entitled to, 84 
 
 person who receive, from trustee cannot release or convey, 98 
 
 relation to statute of uses, 4 
 REPAIRS 
 
 covenant for, 103 
 
 landlord should not covenant to make, 104 
 RE-POSSESSION OF PREMISES 
 
 leases grant, when, 103 
 RESERVATION 
 
 grant of the land as to, 47 
 
 grantor makes, when, 92 
 
 termination of, 47 
 
 landlord needs a, in lease to inspect, 103 
 
 recital in deed showing, 28 
 
 reddendum as to, 12 
 
 riparian rights as to, 44 
 RESIDENCE OF PARTIES 
 
 premises as to, 11 
 RESTRICTION CONSTRUCTIONS 
 
 building line, 65 
 
 duplex flat, 64, 65 
 
 factory, 65 
 
 fire engine house, 64 
 
 flat, 64 
 
 photograph gallery, 63 
 
 space between buildings, 64 
 
 store and flat, 64, 65 
 
 two-family flat, 63 
 
 two-story dwelling-house, 64 
 RESTRICTIONS 
 
 agreement as to, on other lands to be subdivided, 65 
 
 breach of covenant as to, 56 
 
 change of condition in property under, 62 
 
 condition in a deed as to, 49 
 
 construction of, regarding a two-story dwelling-house, 64 
 
 corporate holdings of the Saxons as to, 4 
 
 covenant as to user of land as building, 61 
 
 lot sold without, cannot be subjected to, 66 
 
 one breach of, will not estop its enforcement, 65 
 
 rear of lot on corner as to, 66 
 RESULTING TRUSTS 
 
 abolishment of, 25 
 
 defeat of title in, 65 
 RETROACTIVE ACT 
 
 acknowledgment of foreign deed may be, 76 
 REVERSION 
 
 condition as to, 12 
 RIGHT TO CONVEY 
 
 covenants of, 54, 55 
 
 that do not run with the land area, 55
 
 22 INDEX. 
 
 RIPARIAN OWNER 
 
 title of, to middle of stream, 42 
 ROYAL PARIS ACRE 
 
 arpent as a, 35 
 SALEABLE TITLE 
 
 bona fide purchaser having, 80 
 SALES 
 
 power of, in deed or mortgage, 86, 94, 101 
 
 title through execution, 45 
 chancery, 144 
 probate, 142 
 SAXONS 
 
 conquest as to, 4 
 SCROLL OR DEVICE 
 
 effect of, 67 
 SEAL 
 
 acknowledgment of deed going into another state must have, 75 
 
 certificate of acknowledgment has officer's, 72 
 
 consul's acknowledgment as to, 76 
 
 deed as to, 12 
 
 importance of, 67 
 SEALED AND DELIVERED 
 
 feoffment effected by, 3 
 SEALED CONTRACTS 
 
 assignment, 6 
 
 bond, discharges, leases, mortgages are, 6 
 
 deed is, 6 
 SECTION CORNER 
 
 land-marks as to, 30 
 SECTION LINES 
 
 origin of, 30 
 SECTIONS OF LAND 
 
 origin of, 30 
 SECURITIES 
 
 deeds intended as, recorded as mortgages, 81 
 SEIZIN 
 
 covenant of, 54 
 
 words of, 54 
 SELL 
 
 operative word in a deed is, 26 
 
 premises as to, 11 
 SERVITUDE 
 
 breach of a covenant is a visible, 57 
 SEVERAL PERSONS 
 
 execution of a power by, 92 
 SHIP-LAND TRACT 
 
 land known as, 35 
 
 location of, 36 
 SIGNATURE OF THE PARTIES 
 
 deed as to, 12 , 
 
 grantor places his, 72 
 
 officer takinsr acknowledgment places his, 72 
 SIGNED, SEALED AND ACKNOWLEDGED 
 
 common law form as to, 8 
 SIGNING 
 
 neccssitv of, a conveyance, 67 
 SILENT PARTNER 
 
 deed as to, 22 
 SINGLE MAN 
 
 recital in a deed, 16
 
 INDEX. 23 
 
 SON 
 
 support of father, 12 
 SPACE BETWEEN BUILDINGS 
 
 restrictions regarding, 64 
 SPECIAL POWERS 
 
 designated person in, 91 
 
 disposition of, 88 
 
 limitations of, as to their validity, 90 
 
 married woman as to, 89 
 SPENDTHRIFTS 
 
 guardians of, to sell land, when, 142 
 STANDARD QUARTER POSTS AND SECTION CORNERS 
 
 definition of, 31 
 
 size of, 31 
 STATE 
 
 adverse possession against, 42 
 STATE AND COUNTY 
 
 failure to designate, effect on description, 38 
 STATUTE OF FRAUDS 
 
 relation to feoffment, 3 
 STATUTE OF LIMITATION 
 
 delivery of the deed as a, in a covenant, 53, 56, 121 
 STATUTE OF USES 
 
 covenants as to, 52 
 
 definition of, 4 
 
 purchaser vested in title as to, 5 
 STATUTES 
 
 implication of covenants in Michigan, 23 
 
 what law governs in, 24 
 STATUTES MORTMAIN 
 
 definition of, 4 
 STATUTORY FORECLOSURE 
 
 contents of, 128 
 STATUTORY FORM OF DEEDS 
 
 acknowledgment as to, 13 
 
 date as to, 13 
 STATUTORY LAW 
 
 tax as to, 14 
 STATUTORY PROVISION 
 
 condition in deeds, 50 
 
 power as a, 50 
 
 uses and trusts as, 50 
 STATUTORY REQUIREMENTS 
 
 donor prohibited from dispensing with the, 93 
 STATUTORY SHORT FORM OF DEED 
 
 provision for, in this state, 8 
 STORE AND FLAT 
 
 restriction regarding, 64, 65 
 STRANGER 
 
 ancient recital binds, 17 
 
 officer liable for damages in taking acknowledgment of, 72 
 STRANGER TO THE DEED 
 
 reservation to, 47 
 STREET OR HIGHWAY 
 
 title of, in abutting property, 41 
 SUBMERGED LAND 
 
 grant carries title to, when, 42 
 
 riparian rights at right angles with stream as to, 44 
 SUBSEQUENT ESTATE 
 
 execution of the power of, owner, 90
 
 24 INDEX. 
 
 SUBSEQUENT PURCHASE 
 
 deed void as against, when, 77 
 SUBSEQUENT PURCHASER 
 
 notice to, when deed is recorded as mortgage, 81 
 
 same grantor as to, 79 
 SUBSCRIBING WITNESSES 
 
 proof of acknowledgment from, 76 
 SUBSTANTIAL BENEFIT 
 
 nominal conditions not affording, 93 
 SUCCESSIVE ESTATES FOR LIFE 
 
 prohibition of, 83 
 SUCCESSORS 
 
 words of limitation in deeds as, 23 
 SUPERIOR TITLE 
 
 eviction under, 58 
 SUPPORT AND MAINTENANCE 
 
 condition in a deed as to, 49 
 SUPPORT OF FATHER 
 
 condition as to son, 12 
 SURRENDER 
 
 voluntary, of possession, 58 
 SURVEYS 
 
 first systematic method of, 29 
 SUSPENSION OF ALIENATION 
 
 definition of, 5 
 
 example of, 10 
 
 future estates by the. are void, when, 95 
 TAX 
 
 covenant in mortgage as to, 100 
 
 lien at delivery as a valid, 56 
 
 seller or purchaser to pay, 14 
 
 time, becomes a lien, 14 
 TAX CLAUSE 
 
 land contracts as to, 107 
 TENANT AT WILL 
 
 land contract as to, 108 
 TENANT BY ENTIRETY 
 
 husband and wife are, when, 22, 21 
 TENANT FOR LIFE 
 
 limitation to leases of, 89 
 TENANT FOR YEARS 
 
 inheritance as to, 89 
 TENANTS IN COMMON 
 
 common law rule as to, 21 
 
 husband and wife by descent are, 22 
 
 two or more grantees are, 21 
 TENANT WITHOUT PERMISSION 
 
 land contract as to, 108 
 TENENDUM 
 
 definition of, 46 
 
 part to a deed, 12 
 TEN THOUSAND ACRE TRACT 
 
 land known as, 35 
 TERMINATION OF TRUST 
 
 one creating trust can declare to whom it shall pass on, 87 
 THIRD PARTIES 
 
 creditors of grantor as, 24 
 THIRD PERSON 
 
 consent of, as to power, 93 
 
 delivery of deed to, sufficient, 70
 
 INDEX. 25 
 
 TITLE 
 
 administrators and executors give, through probate sale, 142 
 
 courts give, by partition, 147 
 
 derivation of, through execution sale, 145 
 
 exclusive possession under, 114 
 
 grants pass, in a voidable deed, 15 
 middle of highway, 41 
 through chancery sale, 144 
 
 instructions regarding, through conveyance, 124 
 
 legal presumption of identity of names in, 17 
 
 marketable title is, by possession, 121 
 
 methods of obtaining, through foreclosure of mortgage, 128 
 
 person entitle to succeed to, through inheritance, 132 
 
 premises as to, 11 
 
 recitals in ; accepted as true, 16 
 
 record as to, 123 
 
 origin of, 30 
 TOWN CORNERS 
 
 land-marks as to, 30 
 TOWNSHIPS 
 
 origin of, 30 
 TRANSCRIPT 
 
 record of conveyance in form of, 76 
 TRANSFER OF TITLE 
 
 writing as to, 9 
 TREATIES 
 
 supreme law of the land, 10 
 TRESPASS 
 
 landlord guilty of, when, 104 
 TRUST 
 
 assignment of, by trustee, 87 
 
 claim of creditor impressed on a, 85 
 
 consideration paid by another, no, results, 85 
 
 land of a, vests in trustees, 87 
 
 measure of, must be in lives of being, 98 
 
 power distinguished from, 94 
 inclusion in a, when, 90 
 synonymous with, when, 87 
 special, in, when, 91 
 
 termination of, at the exercise of the power, 98 
 TRUSTEE 
 
 distribution by, as he sees fit, 91 
 
 enforcement by, of beneficial rights, 87 
 
 estate of, as to right to rents and profits, 84 
 
 interest of, cannot be assigned, 87 
 
 malfeasance of, 87 
 
 perpetuities as to, 10 
 TRUSTS 
 
 certain, are void, 86 
 
 charitable and educational, in perpetuity, 99 
 
 creation of, 85 
 
 expressed, for the benefit of any person, 86 
 TWENTY-ONE YEARS OF AGE 
 
 contingency of vesting in one less than, 82 
 TWO-FAMILY FLAT 
 
 restrictions as to, 63 
 TWO LIVES IN BEING 
 
 accumulation during, 83 
 
 continuance of, as to alienation of, 95 
 
 vesting of an estate after, 83 
 TWO-STORY DWELLING HOUSE 
 
 construction of, 64
 
 26 INDEX. 
 
 TWO WITNESSES 
 
 requirement of statute as to, 74 
 UNASSAILABLE TITLE 
 
 acquirement of, 9 
 UNCERTAINTY 
 
 conveyance to deceased person, 20 
 
 deeds are void because of uncertainty, 22 
 
 meaning of, 23 
 UNDIVIDED HALF 
 
 husband and wife, and another have, 22 
 UNDUE INFLUENCE 
 
 deed executed by, is void, 15 
 UNITED STATES CONSTITUTION 
 
 provision as to treaties in, 10 
 USE AND BENEFIT 
 
 deed ma.de for the, 85 
 USES 
 
 statute of, as to covenants, 52 
 USES.AND TRUST POWER 
 
 statutes of, 84 
 USES AND TRUSTS 
 
 introduction of, in England; 4 
 
 power granted by parent is an advancement in, 94 
 
 statute relating to, 50 
 USES EXISTING 
 
 confirmation of, 84 ' 
 USURY 
 
 mortgage tax and interest is sometimes, 101 
 VALID GRANT 
 
 power in excess of authority in a, 93 
 VALIDITY OF DEEDS 
 
 acknowledgment as to, 13 
 VALUABLE CONSIDERATION 
 
 deeds as to, 24 
 
 grant for, paid by another, 85 
 
 subsequent purchaser in good faith as to, 77 
 VASSAL 
 
 failure of performance of oath of, 2 
 VENDEE 
 
 agreement by, to purchase the land, 107 
 
 interest of, in land contract is real property, 109 
 VENDOR 
 
 enforcement of lieu of, 108 
 
 interest of, is personal property, 109 
 VENUE 
 
 -certificate of acknowledgment contains, 72 
 
 notary acting in another country, 73 
 VESTING 
 
 absolute alienability in, 97 
 
 law favors, 49 
 VICE CONSUL 
 
 acknowledgment of deed by, 76 
 VIRGINIA CESSION 
 
 land obtained by, 33 
 WARRANT AND DEFEND 
 
 obligation to, fulfilled by mailed fists, 53 
 WARRANT THE TITLE 
 
 covenant as to, 12 
 WARRANTY 
 
 covenant of a, 54
 
 INDEX. 27 
 
 WARRANTY DEED 
 
 bona fide purchaser by, 79 
 
 comparison of, with quit-claim deed, 8 
 
 covenants in, 12 
 
 definition .of, 8 
 
 printing of, a crime, 7 
 
 transfer in, of an after-acquired title, 52 
 WAIVOR 
 
 act of the parties constituted a, 64 
 WATERS 
 
 riparian owner has title to middle of', 42 
 WIDOWER 
 
 recital in a deed, 16 
 WIFE 
 
 jointure of husband with, conveys her own property, 45 
 
 recital in a deed, 16 
 WILL 
 
 alienation of land by, 92 
 
 power is created by a clause in a, 92 * 
 
 testator shall pass land authorized in a power to devise by, 93 
 WITNESSES 
 
 acknowledgment of deeds in presence of, 74 
 
 deed as to, 12 
 
 necessity of, 68 
 WORDS AND PHRASES 
 
 definition of to and toward, 40 
 WORDS OF DESCRIPTION 
 
 premises as to, 11 
 WORDS OF INHERITANCE 
 
 fee will pass without, 45 
 
 reservation or exception to, 40 
 WORDS OF LIMITATION 
 
 fee or less than fee, 11 
 
 habendum as to, 11 
 WRITTEN INSTRUMENTS 
 
 conveyances by, 77 
 
 execution of a power by, 92 
 WRITINGS SEALED AND DELIVERED 
 
 bonds as to, 6 
 
 writings as to, 6