IV.—REAL ESTATE.
How known? Unfortunately, this is not always easily determined, as much expensive litigation is continually demonstrating. There are two general divisions of property, which we designate as real and personal.
Land is real property, or real estate. Stocks, lumber, evidences of debt, and all that property which is classed as movable is personal estate. Personal estate may become real estate. How? Take lumber, bricks, etc., which are personal property, and therewith construct a house, and locate it, with stone or brick foundation, on your land. The personal property, so used, merges its lesser title in that of the greater, that of the land on which it is placed, and becomes with the land real estate, subject to real estate law as regards taxation, transfer, and in fact every essential feature. Whence comes the original ownership? First by right of discovery; next by royal grant, and by purchase, and then by descent and purchase. It is our purpose to consider this transfer by purchase. This being accomplished through the medium of a deed, we pass on to mention a few of its characteristics. This document is the evidence of a sale and conveyance of certain real estate, which should therein be accurately described. There is a recognized form of deed in general use, which although containing a few seeming superfluous words, according to the ideas of an occasional iconoclast, is yet safe; and this blank, which may be purchased of publishers, is the one to use. Lack of space will not permit an analysis of a deed, but we will endeavor to explain its execution. The deed must be signed by the party or parties making the sale; must be sealed, acknowledged, witnessed (this is not required in all the states, but is generally done), delivered and recorded. The deed should be written in ink. The writing should be plain, since it is written to be read, a fact sometimes seemingly overlooked. The description and all the clerical work should be completed and accurately completed before signing, since no change is legitimate, if made after signature has been attached. The witnesses should see the grantor sign his name, and then sign themselves. A corporation making a transfer does it by its president or treasurer, who signs in this way:
Cimbrian Manufacturing Company,
By James Felt,
President.
A seal (a small piece of paper attached as a wafer or sealing wax is ordinarily used) is placed opposite the signature of the grantor, or, if more than one name, a seal for each. After signing, sealing and witnessing, the deed must be “acknowledged.” For this purpose the grantor goes before a Justice of the Peace, or Notary Public, or, if the grantor is not resident in the state where the real estate is situated, then before a State Commissioner of Deeds, or if in a foreign country, then before a consul. These are persons qualified by appointment to the office which they hold, to take acknowledgments. The deed is shown the officer, to whom grantor makes the acknowledgment that the document by him signed is his free act and deed; and by whom a certificate to that effect by him signed, is attached to the deed. The deed being duly executed is now delivered by the grantor to the grantee (this matter of delivery is essential), and is by him placed upon record.
By record is meant this: Each county of the state has an office wherein are kept the records of all the real estate conveyances of that county, or of land situated in that county. This office opens its records to the inspection of the public, and by the records there each real estate owner’s title may be investigated. Between the parties to a transfer, the deed would be sufficient evidence of such passing of title without record, but wherever the rights of other parties might clash with such a change of ownership, record would be absolutely necessary for the protection of the grantee. Make it a rule, then, when right or title in or to real estate becomes vested in you by deed, to allow no great length of time to elapse before having records made. Since all titles are to be established in the Registry of Deeds, it is the privilege of any one purchasing, either to investigate the title to his proposed purchase himself, or have some one do it for him. Whenever one wishes an agent to make a transfer he must first authorize his agent, by giving him a power of attorney to attend to the execution of the deed, and this power of attorney must contain specific authority and plenary, and be executed with the formality of a deed, and be regularly recorded.
On writing deeds remember:
That the price paid is ordinarily stated in the deed. The exact amount need not be mentioned. It may read “In consideration of one dollar.” The amount named is not conclusive evidence of amount paid;
That the description should be accurate. It is quite common to find very imperfect descriptions, but this is wrong, and is the cause of much trouble. In addition to description, refer to previous deeds, by giving book and page; wherein recorded in the Registry of Deeds;