« 이전계속 »
It was besides modified from time to time by the usages and legislation in colonial times. It was radically changed, in some of its features, at the close of the revolution. But the greatest and most thorough revision and reforms were made by our revised statutes, which went into operation in 1830. That year may be taken as the era, at which our law of real property was made to assume a regular and consistent shape. The statutes as thus revised, together with the judicial decisions and subsequent enactments, and such portions of the common law as have been retained, constitute, at this day, the law of New York.
Although the revision was accomplished by gentlemen of great talents and extensive acquirements, and the work was executed with an ability which will forever entitle its authors to our reverence and gratitude, it was obvious from the very nature of all human institutions, that there would still remain doubts and difficulties which could only be solved by judicial expositions, or by the legislature. Until the system, therefore, had been in operation for years, and its various provisions subjected to the test of actual experience, the full effect of the various changes which were made, could not be known. A treatise written immediately after the revision could only give the changes in connection with the former law; but could not with safety anticipate the views which the courts might adopt, after the searching criticisms of learned counsel. It was the opinion of some eminent jurists that a century would elapse before the law of trusts and of powers, for example, as modified by the revised statutes, would be as well understood as they were before the revision. Men are governed more by usage than by written law; and hence it requires time to mature any system, however wisely it may be devised.
Most of the changes introduced into our law of real estate have been in operation over thirty years; some indeed for more than twice that period, and a few others for a shorter time. The reported decisions of our higher courts, since 1830, embrace near a hundred volumes; in addition to which many volumes of opinions
of subordinate tribunals of great learning and respectability, have also been published. Various questions in the law of real property have been elaborately discussed and examined, in these volumes. Many doubtful questions have become settled; and the people have become accustomed to the system. It would seem that it is not too early, at this time, to bring these decisions into harmonious connection with our former law, and our existing statutes.
In the Appendix are collected a number of forms of such conveyances as most usually occur in practice, together with such forms of acknowledgments and proofs of their execution as are essential to entitle them to be recorded. Great pains have been taken to insert none but such as may be relied on by the practitioner; and subjoined to the precedents are references to adjudged cases in which their accuracy has been recognized. The number of these forms might have been indefinitely increased. It is impossible, and perhaps not desirable to anticipate every case that may occur.
An attempt to do so would swell the book to an inconvenient size.
In preparing this work it has been the anxious endeavor of the author to state the law as it now exists. In doing so, he has occasionally had to show how the law formerly was, and the reasons for the change. He has in general referred to enough of the adjudged cases and approved works of authority to enable the counsellor to test the accuracy of his conclusions, and to pursue the subject for himself more at large. He has rarely pointed out defects, conceiving it to be his business to state the law as he found it; and to leave it for statesmen and legislators to propose the changes, if any be required. Some changes have indeed been made by the legislature while this work was in progress. He has devoted much time and labor to the treatise, and hopes it may be of use to the profession, whose kindness and indulgence to his other works are most gratefully appreciated.
JOHN WILLARD. SARATOGA SPRINGS, March, 1861.
OF FREEBOLDS OF INHERITANCE DEFEASIBLE, OR CONDITIONAL,
OF FREEHOLDS NOT OF INHERITANCE,
Estates for life conventional,
Estate pur auter vie,
Estate by the curtesy,