CHAPTER VI

REAL PROPERTY

Definition. Property is divided into two classes, real property and personal property. The distinction between the two is dependent fundamentally on the fact that land is immovable so that the thing itself, the "real" thing, can be recovered; while goods and chattels are movable and recovery is often impossible, so that an action against the person involved is, with certain qualifications, the accepted remedy. Hence "real" and "personal" property.

Real property includes lands, the waters above, the minerals beneath, the houses standing and the trees growing thereon, but commonly not the growing crops.

Historical. In England after the Norman Conquest, the law of feudal tenure established the principle that the supreme ownership of land lay in the Crown. No subject could hold absolute ownership of land; he could hold only an interest which came through a grant from the King.

"" Estates. The interest or estate" granted was at first for a limited period; later for life; and eventually it became possible to sell or bequeath one's estate completely, so that to the estate granted were secured practically all the elements of ownership. This fiction of ownership exists in this country to the extent that if a man dies without making a will and without heirs, the land reverts to the owner, the sovereign, which in this country is the State in which the land lies.

Estate for Years; for Life. The " estate for years " we know under the name lease "; the "estate for life," not common in the United States, is granted during the life of some person specified, and on his death the land reverts to the grantor or the heirs or assigns of the grantor.

Fee Simple. The " estate in fee simple" is a conveyance to the grantee "and his heirs forever" and conveys a complete title, which in the United States has so many of the characteristics of absolute ownership that the necessity for the distinction now seldom needs to be considered and in some States has been done away with by statute. The fact that land or real estate cannot be removed makes possible legal proceedings peculiar to real property; the real estate remains within the jurisdiction of the appro

priate local courts, can readily be reached through legal processes and, if necessary and proper, can be returned to its rightful owner if for any reason it has illegally been taken from him.

Delivery. With personal property, change of possession or delivery is often the critical feature that determines ownership or title to the property; with real property, actual delivery is not possible, although delivery of something forming a part of the landed estate, perhaps a twig or shrub, has in times past been performed as the equivalent of the delivery of the land. Later the delivery of the deed, the written instrument solemnizing the transaction, serves this function of delivery of the property.

DEEDS

Deed. The deed is thus evidence in writing of an executed contract for the sale of land. The Statute of Frauds requires that any contract for the sale of lands, or an interest in them, shall be evidenced in writing, and the written deed meets that requirement. The deed, however, is a very formal document and needs not only to be in writing, but also to be written by some one familiar with its requirements; it is quite a different case from that of simple contracts.

Warranty and Quitclaim Deeds. Deeds are of two principal forms or classes, "warranty "deeds and "quitclaim" deeds. In the warranty deed, the grantor engages that he is the lawful owner of the real estate and guarantees to make the grantee whole if it be found that his title to the estate is not good. The quitclaim deed passes on to the grantee whatever title the grantor has. There is commonly added to this a covenant that the granted premises are free from all incumbrances made or suffered by him. The formal words used in these two kinds of deed are in general quite different.

Form of Warranty Deed. The general form of the short warranty deed formerly used in Massachusetts is as follows:

Know all men by these presents:

That I, A. B. of. . . . . . . ., in. . . . . . . . . County, State of...... in consideration of.. . dollars, to me paid by C. D. of... in. .....County, State of..... . . ., the receipt of which I hereby acknowledge, do by these presents give, grant, bargain, sell, and convey unto said C.D., his heirs and assigns, all that certain parcel of land situated in...... in... ... ... County, and State of bounded and described as follows: (here follows the description), together with all the privileges and appurtenances to the said land in anywise appertaining and belonging.

To have and to hold the above granted premises with all the privileges and appurtenances thereto belonging, to the said C.D. and his heirs and assigns, to his and their use and behoof forever.

And I hereby for myself and my heirs, executors, and administrators, covenant with the grantee and his heirs and assigns that I am lawfully seized in fee simple of the granted premises; that they are free from all incumbrances; that I have good right to sell and convey the same as aforesaid; and that I will and my heirs, executors, and administrators, shall warrant and defend the same to the grantee and his heirs and assigns forever against the lawful claims and demands of all persons.

In witness whereof, I, the said A.B. have hereunto set my hand and seal this.... ........day of... . . . . . . . . in the year one thousand nine hundred and..... Signed and sealed in presence of

(Signature)

(SEAL)

Phraseology. In looking at this deed the first thing of importance is the phraseology, "do by these presents give, grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns." These words of conveyance seem to be important and it is advisable to use the exact phraseology that is common in the State in which the land is sold, because in other States slightly different words are often used. For instance, in another State the words used are "grant, bargain, sell and confirm."

Another Form of Warranty Deed. The general short form of the warranty deed once used in New Jersey is somewhat different:

of.....

This conveyance made this........day of.... ...day of....A.D. 19. ., by A.B., of. County, and State of... ..., of the first part to C.D., of... ....County, and State of..... of the second part, witnesseth:

....dollars, the

That said party of first part, for the consideration of... receipt of which is hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto said party of the second part, his heirs and assigns, all that tract and parcel of land, situated in... in. . . . . . . . . County, and State of.... to wit: (here follows description), together with the rights, members, privileges and appurtenances, and the reversions and remainders, rents, issues and profits thereof.

.........

To have and to hold the same unto said party of the second part, his heirs and assigns, to his and their only use, benefit, and behoof, forever.

And the said party of the first part does, for himself, his heirs, executors and administrators, covenant with said party of the second part, his heirs and assigns, that at the sealing and delivery hereof he is the owner in fee simple of the said premises hereby granted or intended so to be; that the same are free and clear of all charges or incumbrances whatsoever, and that he and they the said premises unto said party of the second part, his heirs and assigns, against all persons lawfully claiming or to claim the same, shall and will warrant and forever defend.

In witness whereof, said party of the first part has hereunto set his hand and seal the day and year first above written:

Executed in presence of

Another Form of Warranty Clause. The following form of warranty clause is used in some States:

And I, the said A.B. for myself, my heirs, executors and administrators, do covenant with said C.D., his heirs and assigns, that I am lawfully seized in fee of the aforegranted premises; that they are free from all incumbrances; that I have good right to sell and convey the same to said C.D. as aforesaid; that I will, my heirs, executors and administrators shall, warrant and defend the same to said C.D., his heirs and assigns, forever, against the lawful demands of all persons.

In witness whereof, I, the said A.B., have hereunto set my hand and seal, this..........day of.. ..19.. (Signature)

(SEAL)

Form of Quitclaim Deed. The quitclaim deed uses different words and the following sometimes used in Kansas is an illustration:

This conveyance made this.......day........A.D. 19. ., by A.B. of. of..... County in the State of......, of the first part, to C.D., of..... County in the State of......, of the second part, witnesseth:

That the said party of the first part, in consideration of the sum of........ dollars, the receipt of which is hereby acknowledged, does by these presents remise, release, and forever quitclaim unto the said party of the second part, his heirs and assigns, all the following real estate, situated in the County of.. and State of........, to wit: (here follows description).

To have and to hold the same together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining, unto the said party of the second part, his heirs and assigns forever. And the said A.B. for himself, his heirs, executors, or administrators, does hereby covenant, promise, and agree, to and with said party of the second part, his heirs and assigns, that he has not made, done, committed, executed, or suffered any act or acts, thing or things, whatsoever, whereby or by means whereof the within granted and described premises, or any part thereof, now are incumbered in any manner whatsoever.

In witness whereof, the said party of the first part has hereunto set his hand, the day and year first above written

(Signature)

Special Warranty. In some deeds having the general appearance of a warranty deed, a "special warranty" form is used, substantially as follows:

..that he has not done, or suffered to be done, anything whereby said premises hereby granted or intended to be, are or may be in any manner incumbered or charged; and that he and they the said premises unto said party of the second

part, his heirs and assigns, against all persons lawfully claiming or to claim, by, through, or under said parties of the first part shall and will warrant and forever defend.

Scope of Special Warranty. It should be noted and clearly understood that this special warranty does not insure or guarantee title against any one who has a good title, or who has an adverse claim against the grantor, but only warrants or guarantees that the grantor has not conveyed the property to others or allowed claims to accrue against the property. With the "special warranty" it appears not very important whether the words used are "grant, bargain, sell, and convey or are “remise, release, and forever quitclaim." The deed is little better than a quitclaim deed.

Some of the old, long form deeds contain the words:

together with all and singular the tenements, hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, and the rents, issues and profits thereof.

The terms were used when the idea was predominant that there was no ownership of land (except in the King) and when estates other than in fee simple were not unusual and when some interest in the land was either left over or reverted. They hardly need attention here.

Kent's Short Form of Deed. In Kent's Commentary it is stated:

"I apprehend that a deed would be perfectly competent in any part of the United States to convey the fee, if it has to be to the following effect: I, A. B., in consideration of one dollar to me paid by C.D., do bargain and sell (or in New York, grant) to C.D. and his heirs (in New York, Virginia, etc., the words "and his heirs" may be omitted) the lot of land (describe it), witness my hand and seal," etc.

Nevertheless the practice down from Chancellor Kent's time has been in conformity with the opinion of Lord Coke,

"that it is not advisable to depart from the formal and orderly parts of a deed, which have been well considered and settled."

Standard Forms. It is undoubtedly wise to use in each State the standard forms in use in that State, and printed blank forms are usually available. Deeds for real estate are not documents in which it is desirable to incorporate any original ideas. In many States, by statute, simple short forms have been definitely authorized.

Statute Form of Warranty Deed in Massachusetts.

I, A. B., of...

.County, Massachusetts, being unmarried, with Warranty

for consideration paid, grant to C.D. of..