Putnam's Handy Law Book for the Layman

Curtesy.– A husband acquires an interest or estate in land belonging to his wife after her death. To be entitled to it, there must be a legal marriage. Even though it be unlawful, if not set aside during her life, his interest in her estate cannot be defeated by afterwards declaring the marriage void. Curtesy does not extend to land nominally held by her, or as trustee. The wife must have had a child who might have inherited the estate. It is immaterial whether she acquired her estate before or after the birth of the child. As soon therefore as a child is born, his estate or interest begins and is perfected or consummated by her death, and may be taken at any time afterward for his debts. What may be the effect of a divorce is not well settled. In some states even though he is an innocent party, he forfeits his estate. This rule is founded on the idea that he is a voluntary party, and therefore need not have one; in other states his interest continues. As the husband's rights to such an estate have been abolished in many states, we refrain from adding more principles.

Deceit.– A seller is not liable for deceit when the knowledge, or way of obtaining it, is equally known by both parties. If one goes into a store to buy a bushel of apples that he has seen by the door and inquires the price and pays for them without making any inquiry concerning their quality, he cannot recover his money if half of them prove to be rotten unless the seller intentionally deceived him, for he might have inquired whether they were all like those on top and of good quality. But if the merchant should put fine ones on top in order to deceive a purchaser, he could recover for his loss. This rule has a wide application. Suppose a seller keeps his store dimly lighted intentionally so that the inferior quality of his goods cannot be discerned, and a person should thereby be deceived and injured, he would have a good cause of action against the seller. Suppose a ship was decayed in places, and these were intentionally so concealed that they could not easily be seen by one who was examining with the intention of purchasing, and he was thereby misled, the seller would be liable for the loss to the purchaser. Of course, the prudent course is to obtain a warranty, or better still, whenever practicable, buy of one who has established a reputation for honest, fair dealing.

Suppose a man purchases a piece of land, generally supposed to be an ordinary farm, which contains, as he knows, a valuable coal mine, can the seller after the public knowledge of the mine, recover the land or a larger purchase price therefor? Has the purchaser deceived him? Did the law require the purchaser to make known his superior knowledge before purchasing? No, if it did, there would be no end to the confusion to which such a rule would lead. It is within ordinary experience that purchasers buy either knowing or supposing they will reap advantages from their contracts of which the seller is ignorant. There is no deception in this; but there is in withholding knowledge from the buyer of the quality or condition of a thing that affects its value, and which if known by him would probably prevent him from purchasing. Suppose a horse is blind in one eye and the prudent horse trader says nothing. Can the buyer recover? Ordinarily he could not, for he ought to have looked, and if he did not know enough to look, either he should have obtained a warranty, or have employed a competent agent to purchase for him. Suppose the old trader, skilled in his business, intentionally put his horse in the shadow so that the defective eye could not be seen, then the seller would surely have his remedy against him. If he put his horse there accidentally he would not.

Is a wink a deception for which the winker must answer in the law? A hardened dealer once went near a large meeting of men with a wagon load of bottles containing cold tea. The thirsty crowd soon came around. "One dollar a piece," he announced with a wink. The wink was effective and the bottles were quickly sold. They were filled with cold tea, and the buyers sued for the deceit that had been practiced on them. They failed, the court said that a wink was not enough. Another court might have decided otherwise.

Deeds.– In selling and buying land several deeds are in use. The forms differ considerably in the different states. The most important of them is called a warranty deed, in which the seller not only conveys the title, but warrants or agrees to defend it against all attacks. Suppose A sells a piece of land by warranty deed to B, who makes the unwelcome discovery that a mortgage is existing thereon. He notifies A and asks him to clear the title. Suppose the mortgage has been paid, but the lender of the money, the mortgagee, forgot to give the proper deed to show that he had received payment. And suppose he was an ugly fellow who would not give the proper release. B could compel him to do so, and the expense must be borne by A because his deed of warranty required him to give a clear title.

In such a deed the grantor or seller agrees or covenants to do usually four or more specific things: first, he asserts that he has a right to convey the land at the time of the sale. Of course, if he has not, the agreement or covenant is at once broken and the buyer can proceed against him to make the title good, or to recover damages if he cannot retain the premises. The second covenant or agreement is to the effect that the seller has both the quantity and quality of land mentioned in the deed. The third covenant is that there are no encumbrances on the land, that is, no mortgages, no rights of others to pass over it, or to take earth, water or other things from the land. The fourth covenant is for the quiet enjoyment of the land, which is the most general form of warranty. There may be other covenants, often there are, while the four mentioned may be, and often are, modified.

Does such a warranty bind other persons than the warrantor, in other words are his heirs and persons to whom he may devise his lands also indefinitely bound by his warranty? The statutes in some states fix his liability. Where none exist the law limits the liability of parties to the amount of assets or property they have received from the warrantor; if they have received nothing they are not liable for anything.

A covenant to protect the buyer from encumbrances, claims, etc., does not always relieve him from the expense of a lawsuit. Suppose A claims a right of way over B's land and insists on using it. B brings his action of trespass against him and wins. He cannot sue his grantor or seller to recover the expense of the suit, for the latter would reply, "You have won your case which is proof that the title is good as warranted, and therefore you have no claim against me." If, on the other hand, A had won his case B would then have a good cause of action against his covenantor.

Another kind of deed used in selling land is called an indenture. This is signed by all the parties, and copies are usually made and delivered to all of them. This deed also contains warrants or covenants like the one first described.

Another kind of deed is called a release or quit-claim. By this the grantor or party giving it conveys whatever interest he may have in the land. It is the deed always given by a mortgagee on the payment or discharge of his mortgage. It contains no warrants to do anything and therefore differs from a deed of warranty. Sometimes a person conveys a piece of land knowing that the title is defective which the purchaser, notwithstanding the defect, is willing to buy. The seller may safely give a quit-claim deed for he thereby sells only whatever interest he may have.

All the deeds above mentioned except an indenture, are signed only by the selling or granting party. They become effective by delivery. They are often called poll deeds.

Every grantor must append to his name a seal. Once a seal was of the utmost importance in the days of ignorance when persons knew not how to write and each person had a seal of his own. As distinctive seals have long since disappeared, seals have less significance than formerly, nevertheless many legal rules are founded on the distinction between sealed and unsealed instruments. Thus two written contracts may be exact duplicates except that one of them may have no seal. The law in most states regards the unsealed one as a mere oral or unwritten contract, to which are applied the same rules of evidence. The use of L.S., enclosed in brackets, thus [L.S.] is just as effective as a seal of wax or a wafer. In many states a corporation need not use its corporate seal, any other may be substituted. The federal rule especially requires the use of the corporate seal and that it be affixed by someone who was properly authorized to do this.

By statute the names of two witnesses are required, and when omitted the deed is not only defective, but in some states at least is void. A witness need not write his name in the grantor's presence, if asked to sign in the proper place as a witness this will suffice.

A lease of land is also a deed differing from those mentioned in conveying the use of land for a fixed period and on varying terms.

A deed should be completed before delivering it, the same rule applies to most legal writings. Unimportant alterations may be made, and if any are made, the question may prove difficult, are they important or not. Of course if both parties agree to them, the validity of the deed is not impaired. Whenever they do appear, in some states the law presumes they were made before delivering the deed, but this is not the rule everywhere.

Who can make or execute a deed? A minor cannot make a legal deed, and if he attempts to do so he can avoid or set it aside after he becomes of age whenever he acts with reasonable promptitude. If he does not thus act, his delay will be regarded as a ratifying of his previous action. What action will have this effect is a fact to be proved whenever the controversy arises.

Usually a deed need not be read to the grantee, nor can he avoid it because he did not know the contents, except when fraud has been practised on him. To a blind or ignorant man a different rule applies. The deed should be read to him, and if this is not done, or if it is wrongly read to him, he can have it set aside in a proper legal proceeding.

Delivery is essential; to do this two things are required. The grantor must give up the deed and the grantee must actually accept it, consequently the delivery of a deed after the grantor's death would not be valid. There must be an actual delivery by him, and though a deed may be completed in every other respect, it is not an effective deed. A deed therefore stolen from one's drawer and delivered to the grantee would not be valid, however innocent the grantee might be in receiving it. Many difficulties have arisen in applying this rule. When the question comes before a court, it seeks after the intention of the parties, and is guided by it when ascertained. If therefore a deed were lying on a table and the grantor should say to the grantee, take it, and he did so, the delivery would be complete; but if he should get it in a surreptitious way there would be no legal delivery. Suppose a deed were mailed to the grantee, or handed to another person to deliver to the grantee, this would be a good delivery.

As soon as the deed has been delivered, it should be taken to the recorder's office to be recorded. Every state has offices in the towns or counties for keeping a perfect copy of all deeds relating to the transfer of the lands within the limits of the town or county. The object of this is to protect purchasers, for, if this were not done, the owner of land might sell it to a purchaser a second time who knew nothing of the previous sale, and then someone would be the loser. To guard against such frauds the system of registration was established at an early day in American history. A purchaser therefore should take his deed at once to the proper recording office for record, and this is regarded as notice to the world from the time of delivering the deed to the recorder, who makes a note thereon of the day and hour it was left with him. Suppose that some creditor of the grantor, not knowing of the sale, should attach the land as the property of the grantor to secure a debt due to him, could he hold it as against the purchaser? Ordinarily the purchaser could still retain the land, and the same rule would apply between him and a second purchaser, though buying in good faith supposing the grantor was the real owner. In some states a statute protects the purchaser by giving him a fixed period of two or three months or more to record his deed. The safe rule is to leave the deed with the recorder as soon as possible after receiving it.

It is a general practice to do another thing with deeds, to make or take an acknowledgment of them, and in some states this must be done before they can be recorded. This consists on the part of the grantor going before a proper officer, often a notary public, justice of the peace, clerk of a court of record, commissioner of deeds, and making oath that he has duly executed the above deed. This oath appears in the form of a certificate at the bottom of the deed or appended thereto and is signed by the officer, who also attaches his official seal. When a deed has thus been acknowledged it can be used in a legal proceeding as evidence without requiring further proof of its execution. But if it had not been acknowledged, then a court would require some proof that the deed had been made and delivered before accepting it as proof of the fact.

When a married woman executes a deed the officer who took the acknowledgment of the deed must make an examination, apart from her husband, to ascertain whether or no her act was voluntary, and he must also record the fact. The acknowledgment should be made after the examination. A defective acknowledgment by a married woman is worthless, nor will any court compel her to make another one. Should she make another deed, however, with a proper acknowledgment this would be legal.

The officials who take acknowledgments possess different authority, some can take them only of land situated in their respective states; others have authority to take acknowledgments of deeds of land in every state. In all the states are commissioners of deeds, so called, who are authorized to act outside their own state. Some persons who have an important conveyancing business have qualified themselves to thus act as commissioners for many states, and perform a highly useful service.

If a mistake has been made in a deed can it be corrected? The general rule is it can be amended in all cases of fraud, accident, or mistake. How can this be done? If the grantor is unwilling to do right, the purchaser can by a proper application to a court, or court of equity, ask for the correction of the deed or such other relief as justice requires. Suppose the grantor has declared in his deed that the land contains a hundred acres and a survey finds only fifty. This would be a palpable fraud and a court would, if requested, order the reconveyance of the land and return of the money. Suppose the deed covered no land at all belonging to the grantor, this would be a still greater fraud. Suppose the deed said one hundred acres more or less, and a survey found only fifty acres. The purchaser bought supposing that there was no such deficit, but perhaps a small one, what would a court do? Doubtless it would hold that the grantor tried to deceive the other party and would grant relief.

The land sold must be bounded or described. As land is increasing everywhere in value more pains is taken in describing it, than formerly. Large tracts have been surveyed by the government and are indicated as sections, quarter sections, yet even these boundaries are sometimes imperfect, caused by incorrect surveys, whereby lands overlap, or otherwise have defective boundaries.

One of the well-known rules is, monuments control corners and distances. This is founded on much experience, for this shows that courses differ from variations in the compass, changes in the surface, etc. Though monuments may be moved intentionally or by natural causes, they can be more trusted in the long run of things.

The location of a monument is a question of fact. It is sometimes said that natural monuments possess higher value than artificial ones, this depends on the character of the artificial one. A large stone set in a secure place surely is a better boundary than a wayward stream whose course is changed by every freshet. In marking the public lands of the western territories by statute monuments must designate the corners of the tract. But when these are lost then corners and distances become the guide. Oral evidence may be admitted to establish the location of monuments, and even hearsay evidence may be used for the purpose.

In a city lot courses and distances play a larger part in fixing the boundaries, and are more carefully defined. Often the boundary is to the center of a dividing wall.

The boundary of land by a non-navigable stream is to the center; and if one owns on both sides of such a stream he is the owner also of the bed. But if land is bounded by the bank or shore of a stream, or by other words of clearly evident exclusion, the stream is excluded. The rule is different that applies to a tidal navigable stream. In some states the boundary is high-water mark; in other states low-water. In both cases the riparian owner, so-called, may erect a wharf extending from his land subject to public control. The boundary of a natural pond or lake, either in its natural state or raised artificially, is low-water mark. Nor is the law changed by the conversion of a fresh water pond into a salt pond by the hand of man. The boundary to an artificial pond is through the center.

The title to the bed of all lakes, ponds, and navigable rivers to the ordinary high-water mark is vested in the states. Thus the people who live around them may enjoy the waters the same as others enjoy tidal waters. Nor is the state title affected by any manipulation of the land above the surface of the water.

The same rules of law apply to land situated along public highways. If a deed should bound the land "by or along a highway," it would include the land to the center; only words of clearly intending exclusion have a different effect. If a deed should say "by the side" of a highway, it might be excluded and it might not, the courts do not agree. All agree that the intention of the parties should govern, but differ as to intention expressed in the words they have used. The law is full of such difficulties. If a highway is abandoned, the adjoining owners can extend their lines to the center, unless one of them can prove that he is entitled to more than one half.

In investigating the title to real estate it is the duty of an attorney employed for that purpose, says Justice Trenchard, "to make a painstaking examination of the records and to report all facts relating to the title. He is, therefore, liable for any injury that may result to his client from negligence in the performance of his duties – that is, from a failure to exercise ordinary care and skill in discovering in the records and reporting all the deeds, mortgages, judgments, etc., that affect the title in respect to which he is employed."

Divisional Tree.– When the base of a tree is wholly on the land of one owner the whole tree belongs to him. An adjoining owner, however, may cut off at the divisional line such branches as over-hang his land without notice and without reference to the length of time they have been growing. To do this he cannot go on the land of his neighbor, but must stay on his own land. A different rule applies to a tree that stands on a divisional line and both owners have an interest therein.

Dower.– Dower is the interest that a wife has in her husband's land after his death, and consists, unless modified by statute, of the use of one third during her life. While both live her interest is so secured to her by law that he cannot sell and convey any of his land unless she unites with him in signing a proper deed of conveyance. In most states this interest or dower is paramount to the claims of her husband's creditors. But if there is any lien on the land at the time of his death, like a mortgage, she cannot claim a preference or priority over the mortgagee.

She can claim her dower in any land belonging to her husband which her children, if she had any, could have inherited as the heirs of their father. When her dower is in mortgaged land, she cannot get possession until the mortgage has been paid. Again, where land, wherein she has a dower interest, must be sold, her right to the proceeds follows the sale. If her husband was not in possession of the land claimed by him before and after marriage, her dower will not become effective until gaining possession. If he were only the nominal and not the real possessor, her dower will not attach to the land, nor if he were in possession as trustee, the real ownership belonging to another.

A legal marriage is necessary to sustain a dower estate. Whenever a marriage can be set aside for some illegality, and is not, it will sustain her dower on his death. So, too, her dower may be lost or barred by a legal separation; if she should re-marry, or the divorce is set aside, her dower would revive. Her dower may also be lost should her husband legally part with his estate, or by any legal proceeding it should be taken away from him; thus, should another claim it and prove that he had the better title. In other words she loses her dower whenever her husband has no estate from which her dower can be carved out. It is true that an adverse claimant cannot give any title to her husband's land that would bar her right thereto. The reason for this rule is that, like a minor, her rights cannot be acquired against one who is unable by reason of age or other infirmity to protect himself.

The wife is entitled to have dower assigned to her immediately after her husband's death. Until this is done, she has the right of common law for the period of forty days, called quarantine, to reside in her husband's house, provided she does not marry during that time.

Dower may be assigned to her in two ways. One way is by direction of the court, which ascertains by proper evidence the extent, location and value of the husband's lands, and then directs the sheriff to carry out its order in assigning to her a specific portion for her use during life. The other way is by agreement. In some states money is assigned to her instead of land as dower.

Dower may be barred by agreement made before marriage. These arrangements, marriage settlements, are becoming more frequent with the increase of wealth and complexities respecting the holding of property. Sometimes a testator provides for his widow in lieu of dower. In such a case she may accept the gift, or reject it and claim her dower rights. Suppose a testator should own a large amount of land, and in his will should give her only a small amount of money in lieu of dower. If eager to get the most possible, she would reject the gift of money and claim her dower rights. On the other hand, suppose he had but very little or no real estate, then she doubtless would accept the money gift, unless she could claim a still larger sum by virtue of some statute made to fit such cases.

Dower does not exist in crops or trees severed from the land, but does exist in mines and quarries belonging to the husband which were opened and worked during his life. If lands have been exchanged by the husband, she can elect in which she shall take her dower, but not in both. There can be no dower in a mere personal privilege, or in a revocable license pertaining to land. The widow of a partner is ordinarily entitled to dower in so much of the partnership land as is left after the payment of the firm's debts and the adjustment of matters between the partners. But if an agreement among them that the land shall be considered as personal property for all purposes, then no dower therein can be claimed by the widow of any partner.

A wife can release her inchoate dower or future expectation of receiving it by joining in a conveyance with her husband for that purpose. In order to make the election binding, it must be made with full knowledge on the widow's part of her husband's estate, and the relative value of her dower interest. The election is personal, and cannot be exercised by her representatives after her death, nor by creditors; and if insane, this cannot be done by any committee or guardian acting under the authority of a court.