trespassers. § 393. The foregoing sections of this article do not apply willful where a person willfully uses the materials of another without his consent; but, in such case, the product belongs to the owner of the material, if its identity can be traced. Silsbury a. McCoon, 3 N. Y., 379. § 394. In all cases where a proprietor whose material has been used without his knowledge, in order to form a product of a different description, can claim a property in such product, he has the election of demanding restitution of his material, in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. Owner may elect be tween the thing and its value. liable § 395. Persons who employ materials belonging to Wrong docr others, without their knowledge, may also be held liable damages in damages, and criminally, in proper cases. and crimi nally. TITLE IV. TRANSFERS. CHAPTER I. Transfers defined. II. Transfers of real property. III. Transfers of personal property. V. Fraudulent transfers. CHAPTER I. TRANSFERS DEFINED. § 396. Transfer is an act between living persons, by which one conveys to another the title to property.* It may be in writing, or in certain cases without writing. A transfer by writing is also called a grant or conveyance. *The obligations of the parties to a transfer for consideration, or to a contract of hiring, are regulated by the chapter on Sales, on Exchange, and on Hiring. Transfers in trust for the benefit of creditors are regulated by the chapter on Debtor and Creditor. Requisites to convey certain interests in lands. Grants in fee, or of freeholds, how execu CHAPTER II. TRANSFERS OF REAL PROPERTY. SECTION 397. Requisites to convey certain interests in lands. 398. Grants in fee, or of freeholds, how executed; when to take effect. 399. Livery of seisin. 400. Form of grant. 401. Transfer of incidents and appurtenances; rents. 402. Delivery necessary. 403. Delivery to grantee is necessarily absolute. 404. Delivery in escrow. 405. Surrendering or canceling grant. 406. Constructive delivery. 407. Covenants in conveyances. 408. Lineal and collateral warranties. 409. Certain deeds declared grants. 410. All the estate of the grantor passes. 411. No greater estate passes. 412. How far conclusive on purchasers. 413. Conveyances by tenants for life or for years. 414. Attornment by tenant, when unnecessary. Liabilities of tenant. 415. Conveyance of land adversely possessed. 397. No interest in real property, other than a term not exceeding one year, and no trust or power, relating thereto, can be created, transferred, surrendered or declared, except by operation of law, or by a conveyance in writing, subscribed by the party disposing of the same, or by his agent, thereunto authorized by writing. This section does not affect the power of a testator in the disposition of his real property by will; nor prevent a trust from arising, or being extinguished, by implication or operation of law; nor does it abridge the power of the courts to compel specific performance of agreements in cases of part performance. 1 R. S., 134, §§ 6, 7, 10. § 398. Every grant in fee, or of a freehold estate, must be subscribed and sealed by the grantor or his agent; and ted; when if not duly acknowledged, previous to its delivery, ac to take effect. cording to the provisions of chapter IV of this title, its execution must be attested by at least one witness; or if not so attested, it has no effect as against a subsequent purchaser or incumbrancer, or those claiming under him, until so acknowledged. 509 1 R. S., 138, § 137; Wood a. Chapin, 13 N. Y., seisin. § 399. The mode of conveying lands by feoffment, with Livery of livery of seisin, is abolished. 1 R. S., 738, § 136. graut. § 400. A grant or conveyance of real property may be, Form of in substance, as follows: day of "This grant, made the between A. B., of .... in the year of the first part, and C. D., of ...... of the second part, witnesseth: "That the party of the first part hereby grants to the party of the second part, in consideration of ..... dollars, now received, all the real property situated in ... and bounded.... "Witness the hand and seal of the party of the first part. "A. B. [SEAL.]" In England, the following form is prescribed by 8 and 9 Vic., c. 119: "This indenture, made, &c., in pursuance of an act to facilitate the conveyance of real property, between A. B. and C. D.; witnesseth: that, in consideration of ...... now paid by the said C. D. to the said A. B. (the receipt whereof is hereby by him acknowledged), he, the said A. B., doth grant unto the said C. D., his heirs and assigns forever, all that In witness whereof, the said parties hereto have here- Chan. Kent (4 Com., 461) recommends the following: A form briefer still was held sufficient in Kentucky. Transfer of incidents tenances. § 401. The transfer of land, with its incidents or appurtenances, carries the incidents mentioned in sections 148 and appurand 149. Rents may be transferred, in whole or in part, like any other thing in action, by a transfer of the whole or part of the reversion, or of the rents without the reversion. Rents. Delivery necessary. Delivery to grantee is absolute. § 402. A grant takes effect, so as to vest the estate or interest intended to be conveyed, only from its delivery. 1 R. S., 738, § 138. § 403. A grant cannot be delivered to the grantee condinecessarily tionally. Delivery to him or his agent is necessarily absolute, and the instrument takes effect thereupon, discharged of any conditions on which the delivery was made. Worrall a. Munn, 5 N. Y. (1 Seld.), 229. Delivery in escrow. Surrendering or canceling grant. Construc tive delivery. Covenants in convey ancos. § 404. A grant may be deposited by the grantor with a stranger, to be delivered by him on performance of a condition, and on delivery by the depositary, it will take effect. Clark a. Gifford, 10 Wend., 310. § 405. Redelivering a grant to the grantor, or canceling it, cannot operate to re-transfer the title. Jackson a. Anderson, 4 Wend., 474. Jackson a. Chase, 2 Johns., 84. Raynor a. Wilson, 6 Hill, 469. Nicholson a. Halsey, 1 Johns. Ch., 417. § 406. Though an instrument be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases: 1. Where the instrument is by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery ;' 2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown or may be presumed;" A voluntary conveyance or settlement takes effect upon its execution, although the grantor retains its possession, unless the contrary intention appears.3 1 Scrugham a. Wood, 15 Wend., 545; Roosevelt a. Carow, 6 Barb., 190. Church a. Gilman, 15 Wend., 656. 3 Souverbye a. Arden, 1 Johns. Ch., 240; Bunn ɑ. Win throp, 1 Id., 329. 407. No covenant is implied in any conveyance of real property, whether it contains special covenants or not. 1 R. S., 738, § 140. collateral § 408. Lineal and collateral warranties, with all their Lineal and incidents, are abolished. The liability of those who ac- warranties. quire the real property of a decedent, by succession of will, is regulated by the CODE OF CIVIL PROCEDURE. 1 R. S., 739, § 141. See Appendix D. § 409. Deeds of bargain and sale, and of lease and re- Certain lease, are deemed grants. 1 R. S., 739, § 142. deeds declared grants. All the estate of passes. § 410. A grant of real property passes all the estate or interest of the grantor, unless the intent to pass a less estate grantor or interest is expressed or necessarily implied. The term "heirs," or other words of inheritance, are not requisite to create or convey an estate in fee. 1 R. S., 748, § 1. The following sections of this article No greater § 411. No greater estate or interest passes by any grant estate or conveyance, hereafter executed, than the grantor him- passes. self possessed at the delivery of the deed, or could then lawfully convey, except that every grant is conclusive as against the grantor and those claiming from him by succession. conclusive on purcha sers. § 412. Every grant is also conclusive as against subse- How far quent purchasers from such grantor, or from his successors claiming as such, except a subsequent purchaser, in good faith, and for a valuable consideration, who acquires a superior title by a conveyance that is first duly recorded. Convey ances by years. for § 413. A conveyance made by a tenant for life or years, of a greater estate than he possessed or could lawfully tenants fo convey, does not work a forfeiture of his estate, but passes to the grantee all the title, estate or interest which such tenant could lawfully convey. by tenant, when n necessary. § 414. When real property is occupied by a tenant, a Attornment conveyance thereof, or of the rents or profits, or of any other interest therein, by the landlord of such tenant, is valid without an attornment of such tenant to the grantee; but the payment of rent to such grantor, by his tenant, before notice of the grant, is binding upon the grantee; and Liabilities of tenant. |