The Government Class Book Part 18

--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 t.i.tle 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 t.i.tle 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 t.i.tle 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 ent.i.tled, 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.

Chapter LII.

Incorporeal Hereditaments. Right of Way; Aquatic Rights, &c.

--1. The term _incorporeal hereditaments_ may, to some readers, need explanation. A _hereditament_ is a thing capable of being inherited.

Land, and all things attached to it by the course of nature or the hands of men, as trees, herbage, water, buildings, &c., which are comprehended in the term real estate, are _corporeal_ hereditaments. _Incorporeal_ hereditaments are inheritable rights which grow out of corporeal inheritances, or which consist in their enjoyment; as the right of pasturing a common; a right of pa.s.sage over the land of another; a right to the use of waters, sometimes called _aquatic rights_, &c.

--2. A _right of way_ is a right of private pa.s.sage over another man's ground. This right is sometimes granted by the owner of the soil; and to make it a freehold right, it must be created by deed, though it be only an eas.e.m.e.nt upon the land of another, and not an interest in the land itself. An _eas.e.m.e.nt_ is, in general, an accommodation. In law, it is any privilege or convenience which one has of another, by grant or otherwise, as a right of way, &c. By the grant of an eas.e.m.e.nt, the grantee acquires no other right than what is necessary to the fair enjoyment of the privilege.

--3. If it is a mere personal right, it can be enjoyed only by the owner of the right, and when he dies, the right dies with him. But a right of way belonging to an estate may be conveyed when the land is sold. Thus, if a man owns lot A and lot B, and he used a way from lot A, over lot B, to a mill, or to a river; and if he sells lot A with all ways and eas.e.m.e.nts, the grantee will have the same privilege of pa.s.sing over lot B as the grantor had.

--4. A right of way may arise from necessity. If a man sells a part of his land, and there is no other way to the remaining part, he is ent.i.tled to a right of way to it over the land sold. And if a man sells land wholly surrounded by his own land, the purchaser is ent.i.tled to a right of way to it over the other's ground, even though no such right is reserved. The right of way pa.s.ses to the purchaser, as necessarily incident to the grant, or included in it.

--5. A man having license to conduct lead pipes through the land of another, may enter on the land, and dig therein, to mend the pipes. The general rule is, that when the use of a thing is granted, every thing is granted which is necessary to the enjoyment of its use.

--6. A person has a temporary right of way over land adjoining a public highway, if the highway is out of repair, or is obstructed by snow, a flood, or otherwise. But the right of going upon adjoining lands does not apply to private ways. A person having a right to a private way over another's land, has no right to go upon adjoining land, even though the private way is impa.s.sable.

--7. A right of way sometimes arises by _prescription_; which is the right or t.i.tle to a thing derived from long use and enjoyment. Such is the right which, by common law, a man acquires to land which has been peaceably held by himself, or by himself and preceding owners, for twenty years. Although the first occupancy was obtained without grant, the long free use of the land is, in law, equivalent to a grant, and implies a valid t.i.tle. In some states, shorter periods have been fixed by statute in which a right by prescription may be obtained. In Pennsylvania, and Ohio, the period is fixed at twenty-one years.

--8. The owners of land adjoining highways, have a right to the soil to the centre of the road: the public have only a right of pa.s.sage while the road is continued. The owners of the soil may maintain a suit against any person who encroaches upon the road, or digs up the soil, or cuts down trees growing on the side of the road. They may carry water in pipes under it, and have every use of it that does not interfere with the rights of the public.

--9. Every proprietor of lands adjoining a stream, has naturally an equal right to the use of the water that flows in the stream adjacent to his lands, "as it was wont to run." Each may use the water while it runs upon his own land; but he can not unreasonably detain it, or give it another direction; and he must return it to its ordinary channel when it leaves his estate. He can not, by dams or any obstruction, cause the water injuriously to overflow the grounds of the neighbor above him, nor so use or apply it as materially to injure his neighbor below him.

--10. But this right to the use of waters, as an eas.e.m.e.nt to the land, may be acquired and lost, or enlarged and abridged, by prescription. A man may diminish the quant.i.ty of the water, or corrupt its quality, by the exercise of certain trades; and by such use of the water for a sufficient length of time, he is in law _presumed_ to have acquired it by grant: and this presumption is the foundation of his right by prescription. The time of such use and enjoyment of water necessary to establish such right is twenty years, except in states in which a different period is fixed by statute. (--7.)

--11. It is a general and established doctrine, that an exclusive and uninterrupted enjoyment of water, or of light, or of any other eas.e.m.e.nt, in any particular way, for twenty years, or for any other period which in any particular state is the established period of limitation, is a sufficient enjoyment to raise a presumption of t.i.tle as against the right of any other person. The enjoyment is deemed to have been uninterrupted, whether it has been continued from ancestor to heir, and from seller to buyer; or whether the use has been enjoyed during the entire period by one person.

--12. As a right may be acquired by use, so it may be lost by disuse; and as an enjoyment for twenty years, or such other period as is prescribed by statute, is necessary to establish a right; an absolute discontinuance of the use for such period will raise the presumption that the right has been released or extinguished. Thus a t.i.tle to land may pa.s.s from its actual owner by non-occupancy for the period above stated; and a t.i.tle to it may be acquired by an undisturbed occupant who shall hold it in peaceable and uninterrupted possession for the same period.

Chapter LIII.

Leases:--Estates for Life; Estates for Years; Estates at Will; Estates by Sufferance; Rent, &c.

--1. Real estate, the t.i.tle to which is conveyed by deed, as distinguished from other estates in land, is called an _estate of inheritance_. An estate of inheritance, that is, an estate in lands that may be transmitted by the owner to his heirs, is a _fee_. No estate is deemed a fee unless it may continue forever. When it is a pure and absolute inheritance, clear of any qualification or condition, it is called a _fee-simple_.

--2. An interest in lands which is to continue for a limited period, is usually conveyed by a written instrument called lease. _To lease_, means to let; but generally to grant the temporary possession of real estate to another for rent or reward. Sometimes the word _demise_ is used for ease. The landlord, or person letting the estate, is called _lessor_; and the tenant, or person to whom the land is leased, is called _lessee_. Leases for a term longer than one year, are usually required to be sealed, and in some states, proved and recorded also, as deeds and mortgages.

--3. These limited interests in land are divided into estates for life, estates for years, estates at will, and estates by sufferance. An _estate for life_ is an estate conveyed to a person for the term of his natural life. Life estates held by lease, however, are not common in this country. Another kind of life estate is that which is acquired, not by the acts of the parties, as by lease, but by the operation of law.

Such is the right of a husband to the real estate of his wife acquired by her before or after marriage. Such also is the right of dower. (Chap.

XLVIII, --6, 7. Chap. LI, --7.)

--4. An _estate for years_ is a right to the possession and profits of land for a determinate period, for compensation, called rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limit of human life. And if a lease should be for a less time than a year, the lessee would be ranked among tenants for years. Letting land upon shares for a single crop is not considered a lease; and possession remains in the owner.

--5. A lessee for years may a.s.sign over his whole interest to another, unless restrained by agreement not to a.s.sign without leave of the lessor. And he may underlet for any less number of years than he himself holds; but he is himself liable to the landlord.

--6. A tenant for years, whose lease expires after the land is sown or planted, and before harvest, is not ent.i.tled to the crop, if the lease is for a certain period; for, knowing that his lease would expire before harvest time, he might have avoided the loss of his labor. But if the lease for years depends upon an uncertain event, the occurring of which would terminate the lease before the expiration of the term, the tenant would be ent.i.tled to the crop, if there were time to reap what has been sown, in case he should live. It is believed that, in a few states, the tenant has a right to the crop from grain sown in the autumn before the expiration of the lease, and cut the next summer after its expiration.

--7. Where there is an express agreement to pay rent, the tenant can not avoid payment even if the premises are destroyed by fire or flood, or if he is in any other manner deprived of their enjoyment and use, even without any default on his part. Hence, if land should be leased with a flock of sheep, and the sheep should die, the full rent must be paid.

But if the land should be recovered from the tenant by a person having a better t.i.tle than that derived from his landlord, he is not liable for rent after his use of the land has ceased.

--8. A tenant can not make repairs at the expense of the landlord, or deduct the cost of them out of the rent, unless by special agreement.

But if the premises, from want of repair, have become unsafe or useless, the tenant from year to year may quit without notice; and he would not be liable for rent after the use had ceased to be beneficial.

--9. When rent is due, payment may be made or tendered upon the premises; and if no place of payment has been agreed on, a personal tender off the land is also good. As to the time of payment, where there is no special agreement to the contrary, rent is due yearly, half-yearly, or quarterly, according to the usage of the country. Where there is no particular usage, the rent is due at the end of the year.

--10. An _estate at will_ is where land is let to another, to hold at the will of the lessor. Tenancies at will, strictly such, are not common.

Such estates, when no certain term is agreed on, are construed to be tenancies from year to year, and each party is bound to give reasonable notice of an intention to terminate the lease. If the tenant holds over after the expiration of a lease for years, either by express consent, or under circ.u.mstances implying consent, it is held to be evidence of a new contract without any definite period, and is construed to be a tenancy from year to year: and in those states where the old English rule prevails, six months' notice must be given the tenant to quit.

--11. What turns leases for uncertain terms into leases from year to year, is the landlord's reserving annual rent. A tenant placed on land without any terms prescribed or rent reserved, is strictly a tenant at will; and it has been held that such tenant is not ent.i.tled to notice to quit; but the general rule now seems to be, that even in such case the six months' notice is necessary; or, as in some states, a reasonable notice.

--12. An _estate at sufferance_ is that which is acquired by a tenant who has come into lawful possession of land, but who holds over by wrong after his interest has ceased. He is not ent.i.tled to notice to quit; and where there is no special statute, he is not liable for rent; and the landlord may enter, and remove the tenant and his goods with such gentle force as may be necessary. If undue force is used, the landlord would be liable to an action for forcible entry and detainer.

Chapter LIV.

Contracts in General.

--1. A _contract_ is an agreement between two or more persons, by which the parties agree to do, or not to do, a particular thing. Contracts are _executory_, when the stipulations remain to be executed, or when one party agrees to sell and deliver, at a future time, for a stipulated price, and the other agrees to accept and pay. Contracts are _express_, when the parties contract in express words, or by writing; _implied_, when an act has been done which shows that the parties must have intended to contract; as, when a person employs another to do some service, it is presumed that the party employing intended to pay for the labor performed.