296. Estates in Remainder. There may be many estates in the same piece of real property. If an owner of an estate in fee simple by one instrument grants an estate less than fee simple to one person and the balance of the fee simple estate to another, the latter estate is called a remainder. If A, an owner in fee, by the same instrument grants B an estate for life, remainder in fee to C, C has an estate in remainder. If C is living at the time the estate is granted, the estate in remainder vests in him at the time of the grant, and is called a vested remainder. If the estate in remainder depends upon any contingency, or is conditional in any way it is said to be a contingent remainder. If A grants a life estate in his farm to B, and the remainder to the heirs of C, the heirs of C cannot be determined until C's death. The estate in remainder is said to be contingent.
297. Estates in Reversion. An owner of an estate in real property in fee simple is permitted to grant his interest in the form of as many estates as he pleases. As long as the total of his grants do not equal his interest, he is said to retain an estate in reversion. If A owns a farm in fee simple, and grants B an estate for ten years, A's remaining interest is called an estate in reversion.
298. Title to Real Property. Title to real property or the right of the owner eventually to obtain possession of it may be acquired in several ways. Mere occupancy under claim of title will, under certain circumstances, if for a certain uninterrupted period of time, give the occupant title. An uninterrupted possession of real property, under a claim of right for a period in excess of twenty years will in most states give the occupant title by adverse possession.
Civilized nations provide by law that the heirs of the owner of real property shall take the title to the property at the owner's death. Estates less than freehold pass as personal property to the executors of the estate of the deceased owner. The statutes of the different states designate who are heirs.
Title to land owned by the government is transferred by public grant. Title by an owner may be conveyed to another by voluntary gift, by devise or will, or by deed. Title by devise or will is discussed in the chapter on Wills.
299. Deeds. The customary method of transfer of real property is by deed. A deed is a written instrument sealed and delivered for the conveyance of land. Deeds were originally divided into deeds-poll, and indentures. Deeds-poll were mere written obligations of the grantor delivered to the grantee, the grantee making no covenants. An indenture, on the other hand, consists of mutual obligation on the part of grantor and grantee. The obligation of each was reduced to writing, signed, sealed, and delivered, the one in exchange for the other. A lease is an example of an indenture. The term, indenture, originated from the custom of writing the obligation of both parties on the same piece of paper, and by writing some letters of the alphabet between the two agreements, and by cutting the paper through these letters at sharp angles. The separate obligations could be identified by fitting together the saw-tooth edges of the different instruments. At present, duplicate copies are made designating them as indentures. Leases are discussed more at length in the chapter on Landlord and Tenant.
At present, the form of deeds in common use are quit claim deeds and warranty deeds. Some states provide forms of deeds by statute. Even in the absence of statute, a written instrument, properly signed and delivered by the grantor, containing a description of the property, and an expression of intention to convey the real estate described, is probably sufficient to constitute a deed. A formal deed is customarily used. Transfers of real property are important transactions. A formal deed contains several formal parts known by different names. These formal parts have resulted from well recognized customs and practices, some of them dating back a great many years. The formal parts of a warranty deed are the premises, the habendum, the redendum, the conditions, the warranties or covenants, the conclusions and the acknowledgment.
300. Premises of a Deed. The premises of a deed contain the name and description of the parties. If a deed is given by an unmarried person, he should be designated in the premises of the deed as A B, unmarried. This enables abstractors of titles to determine that a complete transfer of title has been made. Otherwise there is nothing to show that A B did not have a wife at the time the transfer was made. In this event, the wife would retain her right of dower. The premises usually contain the date of instrument. Sometimes, the date is placed at the end of the instrument. The consideration is also contained in the premises. The consideration of a deed may be either good or valuable. If the grantor receives something of value, as money or an article of value, the consideration is said to be valuable. If a parent grants real property to a child or relative and states the consideration to be love and affection, the consideration is adequate, and is known as good consideration. The receipt of the consideration is also acknowledged in the premises of a deed. The language by which the grantor conveys the estate, such as "give," "grant," "set over," and "release" is contained in the premises as well as the description of the estate granted.
301. Habendum and Redendum Clauses. The premises of a deed are followed by the habendum and redendum clauses. The habendum clause describes the estate granted, whether an estate in fee, an estate for life, or an estate for years. It is not necessary to repeat the description of the estate in the habendum clause. The habendum clause usually commences with the words, "To have and to hold."
The redendum clause contains any interests or rights retained by the grantor. If the grantor reserves to himself the right to use a certain driveway, he places this reservation in the redendum clause.