The government class book / Designed for the instruction of youth in the principles of constitutional government and the rights and duties of citizens.

by Andrew W. Young

Chapter LI.

Deeds and Mortgages.

§1. In whatever manner a person acquires possession of real estate, whether by devise, descent, purchase, or gift, evidence of possession consists, usually, in a deed, which is a written instrument conveying real estate to an heir, a purchaser, or a donee. A deed of land sold, contains the names of the seller and the purchaser, the consideration, or sum paid for it, and a description of it; and in express words grants and conveys all the interest of the seller or grantor to the purchaser and his heirs forever: and the seller affixes his name and seal to the instrument, usually in the presence of one or more subscribing witnesses.

§2. But a deed thus executed does not give to the purchaser sure possession of the land, until it has been duly recorded in the office of the proper recording officer of the county in which the land lies; or in the office of the town clerk, in those states in which conveyances are required to be there recorded. If the land should be conveyed by the seller to a subsequent purchaser who should get his deed first on record, such purchaser would hold the land, unless, before purchasing, he had had notice of a sale and deed to a prior purchaser.

§3. In some states, a reasonable time is allowed a purchaser to get his deed recorded before he loses his right of possession by the earlier recording of another's deed. In some other states, the time is fixed by law, and varies in these different states from fifteen days to two years. But a deed, though not recorded in season to secure the title against a second purchaser, or though not recorded at all, is good against the sellor or grantor; and the dispossessed purchaser has a lawful claim against him for the value of the land.

§4. A recorder or register may not record a conveyance of land without proof that it was executed by the person named in it as the maker or grantor. This proof consists, usually, in a certificate of a proper officer, on the back or margin of the deed, stating that the person so named appeared before him, and, being duly sworn, acknowledged that he was the person who had executed the deed. In every state, judges of courts and justices of the peace, mayors of cities and aldermen, notaries public, or some of these officers, and commissioners of deeds appointed for that special purpose may take acknowledgments. In New York and a few other states, the acknowledgment may be dispensed with, and the execution of the deed may be proved by the subscribing witnesses. Deeds duly acknowledged, are, with the acknowledgments, copied by the recorder, word for word, in books provided for that purpose.

§5. As a person can not give a good title unless he has one himself, the seller or grantor covenants and agrees that he is seized of the premises in fee-simple, (meaning that he is the absolute owner,) and that he will warrant and defend the premises in the quiet and peaceable possession of the purchaser and his heirs forever. Hence such deed is called a warranty deed, [For definition of fee and fee-simple, see Chap. LIII, §1.] A quit-claim deed merely conveys the interest or claim of the grantor. It contains no warranty of title against any other claimant.

§6. A mortgage is a grant of land as security for the payment of money, on condition that, if the money shall be paid according to contract, the grant shall be void. When only a part of the purchase money is paid on receiving a deed, the purchaser usually executes a mortgage to the seller, pledging the land as security for the remainder of the purchase money. And if the money shall not be paid as agreed, the land may be sold; but if sold for more than the amount due, the overplus is to be paid to the mortgager.

§7 To effect a full conveyance of real estate, a wife must join with her husband by signing the deed with him; or, in case of the husband's death in her lifetime, she would be entitled, for life, to the use of one-third of the estate. This interest of a widow in the estate of a deceased husband, is called dower. It is necessary also for the wife to acknowledge, before the officer taking the acknowledgment, and apart from her husband, that she signed the deed freely, and without compulsion of her husband. In some states, the acknowledgment of the wife out of the presence of her husband is not required.