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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....
Form of Quitclaim Deed. The quitclaim deed uses different words and the following sometimes used in Kansas is an illustration :
day........A.D. 19. ., by A.B. of ........ County in the State of.... .., of the first part, to C.D., of..... County in the State
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
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 appurte nances 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.
.. County, Massachusetts, being unmarried, for consideration paid, grant to C.D. of.
Covenants, the land in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and I, E.B., wife of said grantor, release to said grantee all rights of dower and homestead and other interests therein.
Witness my hand and seal this. . . . . . . . . day of... . . . . . . . . 1917.
Provision for this is made by Statute in Massachusetts as follows:
ExTRACT FROM CHAPTER 502, SECTION 2, ACTs of 1912
Every deed in substance in the above form, when duly executed, shall have the force and effect of a deed in fee-simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor for himself, his heirs, executors, administrators and successors, with the grantee, his heirs, successors and assigns that, at the time of the delivery of such deed, (1) he was lawfully seized in fee-simple of the granted premises, (2) that the granted premises were free from all encumbrances, (3) that he had good right to sell and convey the same to the grantee and his heirs and assigns, and (4) that he will and his heirs, executors and administrators shall warrant and defend the same to the grantee and his heirs and assigns against the lawful claims and demands of all persons.
Heirs and Assigns. It should especially be noted that in most States, unless the words “and his heirs ” are used, the estate conveyed is only an “estate for life" and not an estate in fee simple. In some States including New York, that distinction has been abolished by statute. There have been decisions that “his heir '' is not equivalent to “his heirs ” and the phrase “ or his heirs ” has been hald insufficient to convey an estate in fee simple. With corporations, trustees, or others who cannot have heirs, “assigns '' would appear necessary. It should be further noted that in many States, the consideration usually expressed is one dollar. In many, perhaps most States, the warranty will hold for the value of the land at the time the value is proved; in some States, however, the recovery under the warranty will be only for the value expressed as the consideration in the deed, perhaps with interest added, so that one dollar will be inadequate. An engineer who draws a deed should know what is the law in this respect in the State where the land lies.
Warranty Perfects Title. An additional distinction is that in the case of a warranty deed, if the grantor did not have a perfect title when the deed was signed and delivered, yet if at any time later he perfects his title, the warranty deed acts to perfect the title of the grantee as well. With a quitclaim deed, the grantee receives only such title as the grantor had at the time the deed was signed, and any later acquirement of title by the grantor does not cure such a defect.
Financial Ability of Grantor. On the other hand, it should be further stated that if the title be in fact defective, a warranty deed is a protection only so far as the grantor is financially able, or so far as his heirs are financially responsible, that is to the extent of whatever they received from the grantor. If the grantor fails, or if he gives away his money (to his heirs perhaps before his death so that they inherit nothing from him), the warranty gives no protection if someone else establishes a good title to the land. What Quitclaim Deed Conveys. A quitclaim deed on the contrary conveys all the title the grantor had at the time, and if his title was then good, the quitclaim deed conveys a full and complete title. It is wise to keep clearly in mind these distinctions between the two forms of deed. Essentials of Deed. The deed being a formal document, there are five essential requirements. It must be (1) signed, (2) sealed, (3) acknowledged, (4) delivered, and (5) recorded. 1. Signed. There appears to be no legal requirement that the signature should be in ink, but with a formal document a signature in pencil is undesirable from good business principles, on account of its lack of permanence and the possibility of erasure and change. It should be understood also that any interlineation or erasure in the body of the deed or of any important written document raises suspicion. The party offering it as evidence has the burden of proof to show that it is genuine and that the alterations were properly made. It is further necessary that the deed should be written (or printed) on paper or parchment; a shingle, or a piece of tin or aluminum, or a skin not made into parchment, will not suffice. Witnesses. In some States, but not all, witnesses to the signature are necessary. It is not necessary in any case that the signature be made in the presence of witnesses as in the case of wills; a later statement to the witness by the signer is sufficient. If the grantor cannot sign his name, it is customary for him to make his cross, or “mark,” with his name written by someone else against this; ordinarily there should be two competent witnesses to his mark. Wife's Signature. The signature of the wife should, in nearly every State, be taken either to the deed itself or by a separate document releasing her right of dower. 2. Sealed. The deed should also be sealed; and the seal is some adhesive article, formerly a wafer, more commonly a round piece of paper with mucilage or something adhesive to make it stick. Where no regular seal is at hand, anything which can be stuck to the paper will serve the purpose, and a postage stamp or half a postage stamp will readily serve the purpose. In some States it is sufficient to make a “scroll’’ or “scrawl" with a pen with the word “seal" written in the middle, or have a similar device printed in the deed, but in several States this is held not to be legal, and one should not adopt this expedient unless he is sure that the law authorizes it. There are some States in which a seal is not required. 3. Acknowledged. The deed should also be acknowledged before some authorized officer. Most deeds are acknowledged before a notary public who is authorized by the State to act in that capacity and who uses (as authorized by statute) a seal which stamps an impression into the paper; he often attaches (sticks) a piece of paper before stamping the impression. An acknowledgment before a justice of the peace is almost everywhere equally satisfactory, although he does not have a seal as the notary does. The notary or justice of the peace ought to know the form in which the acknowledgment should be made and it is not important that the engineer should be specifically posted upon that point. Where a deed is acknowledged outside the State in which the land lies, it is advisable that the statutes should be consulted to see in what form the acknowledgment should be; the specific statutory requirements must be strictly observed. In some States, as in Massachusetts, it is sufficient and customary that only one of the parties to the deed shall make acknowledgment of his signature; it must be a party having an interest in the land. In most other States all the signatures should be acknowledged, and in some States the signatures of witnesses must also be acknowledged. The form of acknowledgment to the wife's signature is commonly fixed by statute and should be rigorously followed. Other words, “just as good,” will not serve the purpose. The acknowledgment is necessary before a deed can be recorded; it also has value from the standpoint of evidence in the direction of proving the signature to the deed. 4. Delivered. A deed for land, signed, sealed, acknowledged, but locked in the grantor's desk and found there perhaps after his death, does not convey the land. Delivery is necessary; there must be some actindicating delivery. It has been stated that originally some sort of delivery of the land was made; that is, some small shrub or weed was delivered to the grantee as a symbol of delivery. In the case of real property, delivery of the deed is effectively the delivery of the property. Sometimes a deed is delivered or put into the hands of a third party, to be held “in escrow” until final payment is made or some specific act performed, when it is to be delivered to the grantee. The delivery of the deed to the grantee in this case may be made after the death of the grantor; in passing the deed to the third party, an act of delivery by the grantor has occurred. 5. Recorded. A deed is recorded at the office of the Recorder of Deeds, or the County Clerk, or whatever officer is specified by law for such duty. When properly executed and acknowledged and so recorded, it becomes a notice to all the world of the transaction shown in the record, and any one engaging in a transaction as to that property does so with