« 이전계속 »
II. Transfer of Real Property.
Article I. Definition of Transfer.
II. What May Be Transferred.
Definition of Transfer.
1040. Voluntary transfer.
1039. Transfer what.
1039. Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another.
1040. A voluntary transfer is an executed contract, subject to all rules of law concerning contracts in general; except that a consideration is not necessary to its validity.
What May Be Transferred. Section
Section 1044. What may be transferred. 1047. Owner ousted, may trans1045. Possibility.
fer. 1046. Right of re-entry transfer
able. 1044. Property of any kind may be transferred, except as otherwise provided by this article.
1045. A mere possibility, not coupled with an interest, cannot be transferred.
1046. A right of re-entry, or of repossession for breach of condition subsequent, can be transferred.
1047. Any person claiming title to real property in the adverse possession of another may transfer it with the same effect as if in actual possession.
1052. When oral.
1057. Delivery in escrow.
1052. A transfer may be made without writing, in every case in which a writing is not expressly required by statute.
1053. A transfer in writing is called a grant, or conveyance, or bill of sale. The term "grant,” in this and the next two articles, includes all these instruments, unless it is specially applied to real property. 1873—225.
1054. A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor.
1055. A grant duly executed is presumed to have been delivered at its date.
1056. A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.
1057. A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow.
1058. Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title.
1059. Though a grant 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; or,
2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed.
Interpretation of Grants. Section
Section 1066. Grants, how interpreted. 1070. Irreconcilable provisions. 1067. Limitations, how controlled. 1071. Meaning "heirs,” “issue,” 1068. Recitals, when resorted to. remainders. 1069. Interpretations against 1072. Words of inheritance ungrantor.
1066. Grants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided in this article.
1067. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct.
1068. If the operative words of a grant are doubtful, recourse may be had to its recitals to assist the construction,
1069. A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.
1070. If several parts of a grant are absolutely irreconcilable, the former part prevails.
1071. Where a future interest is limited by a grant to take effect on the death of any person without heirs, or heirs of his body, or without issue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor.
1072. Words of inheritance or succession are not requisite to transfer a fee in real property.
1083. What title passes. 1084. Incidents.
1083. A transfer vests in the transferee, all the actual title to the thing transferred which the transferrer then has, unless a different intention is expressed or is necessarily implied.
1084. The transfer of a thing transfers also all its incidents, unless expressly excepted; but the transfer of an incident to a thing does not transfer the thing itself.
1085. A present interest, and the benefit of a condition or covenant respecting property, may be taken by any natural person under a grant, although not named a party thereto.
Transfer of Real Property. Article I. Mode of Transfer.
II. Effect of Transfer,
Mode of Transfer. Section
Section 1091. Requisites for certain
ried women, how acknowlestates.
edged. 1092. Form of grant.
1095. Attorney in fact, acknow1093. Married woman's acknow
1096. Conveyance when na me 1094. Power of attorney of mar changed.
1091. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing.
1092. A grant of an estate in real property may be made in substance as follows:
“I, A B, grant to C D all that real property situated in (insert name of county) county, state of California, bounded (or described) as follows: (here insert description, or if the land sought to be conveyed has a descriptive name, it may be described by the name, as for instance, 'The Norris Ranch.')
“Witness my hand this (insert day) day of (insert month.). 18%.
"A B.” 1093. A grant or conveyance of real property made by a married woman may be made, executed, and acknowledged in the same manner and has the same effect as if she were unmarried. 1895–53.
1094. A married woman may make, execute, and revoke powers of attorney for the sale, conveyance, or encumbrance of her real or personal estate, which shall have the same effect as if she were unmarried, and may be acknowledged in the same manner as a grant of real property. 1895–39.
1095. When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact.
1096. Any person in whom the title of real estate is vested, who shall afterwards, from any cause, have his or her name changed, must, in any conveyance of said real estate so held, set forth the name in which he or she derived title to said real estate. 1905—602.
Effect of Transfer. Section
Section 1104. Easements, appurtenant. 1110. Conditional grants. 1105. Fee simple, title presumed 1111. Grant of rents, reversions, to pass.
etc. 1106. Subsequently acquired title, 1112. Boundary of highway, gengenerally.
erally. 1107. Grant, how far conclusive. 1113. Implied covenants. 1108. Conveyances of limited 1114. Encumbrances defined. estate.
1115. Lineal and collateral war1109. Grant, subsequent condit
1104. A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.
1105. A fee-simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.
1106. Where a person purports by proper instrument to grant real property in fee-simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors.
1107. Every grant of an estate in real property is conclusive against the grantor, also against every one subsequently claiming under him, except a purchaser or encumbrancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that is first duly recorded.
1108. A grant made by the owner of an estate for life or years, purporting to transfer a greater estate than he could lawfully transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer.
1109. Where a grant is made upon condition subsequent, and is subsequently defeated by the non-performance of the condition, the person otherwise entitled to hold under the grant must reconvey the property to the grantor or his successors, by grant, duly acknowledged for record.
1110. An instrument purporting to be a grant of real property, to take effect upon condition precedent, passes the estate upon the performance of the condition. 1873—225.
1111. Grants of rents or of reversions or of remainders are good and effectual without attornments of the tenants; but no tenant who, before notice of the grant, shall have paid rent to the grantor, must suffer any damage thereby.
1112. A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant. 1873--225.
1113. From the use of the word “grant” in any conveyance by which an estate of inheritance or fee-simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless restrained by express terms contained in such conveyance:
1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee;
2. That such estate is at the time of the execution of such conveyance free from encumbrances done, made, or suffered by the grantor, or any person claiming under him.
Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.
1114. The term "encumbrances” includes taxes, assessments, and all liens upon real property, 1873—225.
1115. Lineal and collateral warranties, with all their incidents, are abolished: but the heirs and devisees of every person who has made any covenant or agreement in reference to the title of, in, or to any real property, are answerable upon such covenant or agreement to the extent of the land descended or devised to them, in the cases and in the manner prescribed by law.