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SECTION V.

DELIVERY, AND THE INSTRUMENT OR title of TRANSFER IN THE UNITED STATES.

The statute of frauds.-The forms of conveyance in the several states.—A scroll is in some states equivalent to a seal.-The probate, or acknowledgment and registration of deeds required by the acts of the several states. In what manner made.-When the deed is executed in the state or in another state of the Union, or in a foreign state.-The acknowledgment and registration of deeds executed by married women.—The provision made for compelling the grantor, in case of his refusal, to acknowledge the deed. The nature of the proof in case of the death or absence of the grantor or witnesses before acknowledgment.—In what states the records or copies are admitted equally with the originals.-Or only when the non-production of the original is accounted for.-The provisions on these several subjects in the states of New York, Delaware, New Jersey, Alabama, Missouri, Mississippi, South Carolina, Tennessee, Maryland, Maine, Kentucky, Vermont, New Hampshire, Connecticut, Rhode Island, North Carolina, Virginia, Ohio, Georgia, Indiana, Illinois, Massachusetts, and Louisiana.

THE statute of frauds and perjuries of the 29th Charles II. has been either expressly adopted, or is assumed as law throughout the United States. In the last revision of the New York statutes it is extended to every trust or power concerning lands, or any estate or interest therein. The exception as to leases is confined to leases for a term not exceeding one year. It does not apply to trusts by implication or operation of law. (a)

The conveyance of all freehold estates in land must, by the statute law of South Carolina, be by writing, signed, sealed, and delivered. In Virginia and Kentucky all estates or interests in land exceeding a term of five years, and in Rhode Island exceeding one year,

(a) N. Y. Rev. Stat. vol. 2, p. 134, § 6, 7, 8. Ib. p. 137, § 2.

must be transferred with the same solemnity. The statutes of the other states either expressly require or recognize as essential that the conveyance of land should be by deed, with the exception of Louisiana, where sales of land are made by writing only, and registered in the office of a notary. (a) It had been adjudged in New York in 1814 (b) that a conveyance of a freehold estate must be by deed, or a writing under seal, and the decision was founded upon the doctrine of the English common law. The Revised Statutes (c) have adopted this rule by declaring that every grant in fee, or of a freehold estate, must be subscribed and sealed by the grantor or his lawful agent. The mere cancelling of the deed, under which one holds a title to real estate, will not divest the grantee of his title, and revest it in the grantor. (d)

In the Eastern states sealing is requisite, but in the southern and western states, from New Jersey inclusive, the impression upon wax has been disused to such an extent as to induce the courts to allow (but with certain qualifications in some of the states) a flourish with the pen at the end of the name, or a circle of ink or scroll, to be a valid substitute for a seal. (e)

In Virginia and Alabama there must be evidence of an intention to substitute the scroll for a seal. (f) In New Jersey, Delaware, Virginia, Ohio, Illinois, Missouri, and Tennessee, the scroll is made to supply the seal. But the substitution of a scroll for a seal is limited

(a) Civil Code of Louisiana, art. 2415, 2417. 4 Kent's Com. 450, et seq. (b) Jackson v. Wood, 12 Johns. Rep. 73.

(c) Vol. 1, p. 738, § 137.

(d) Bolton v. Carlisle, 2 H. Black. Rep. 263, 264. Clavering v. Clavering, Pr. in Ch. 235. Dando v. Tremper, 2 Johns. Rep. 86. Gilbert v. Bulkley, 5 Conn. Rep. 262. Botsford v. Morehouse, 4 ib. 350. Farrar v. Farrar, 4 N. H. Rep. 191. Holbrook v. Tirrell, 9 Pick. Rep. 105.

(e) Force v. Craig, 2 Halsted's Rep. 272. Alexander v. Jameson, 5 Binney's Rep. 238. Temple v. Logwood, 1 Wash. Rep. 42. Relph v. Gist, 4 M'Cord's Rep. 267. 4 Kent's Com. 453.

(f) 1 Munf. Rep. 487. 1 Minor's Alabama Rep. 187.

in New Jersey to instruments for the payment of money. In other cases the seal retains its original character. (a) In Indiana the seal, in the sense of the common law, seems to be required to a deed. (b)

In New York the seal retains its original definition and character. (c)

In the United States, generally, the form of a conveyance is very simple. It is usually by bargain and sale, and possession passes ex vi facti under the authority of the local statute, without the necessity of livery of seisin, or reference to the statute of uses.

In Delaware, Virginia, and Kentucky, deeds operate under the statute of uses, as they did in New York prior to the first of January, 1830, when the revised statutes took effect. In Massachusetts, under the provincial act of the 9th of Wm. III., a simple deed of conveyance without any particular form, and without livery of seisin, was made effectual, provided the intention was clearly declared. (d)

Deeds, operating under the statute of uses, also afford a valid mode of conveyance in the New England States. (e) The conveyances are either under the statute of uses or short deeds of conveyance, in the nature of the ancient feoffment, and made effectual on being duly recorded without the ceremony of livery. The New York Revised Statutes (f) have expressly abolished the mode of conveying lands by feoffment with livery of seisin. They have given to deeds of conveyance of the inheritance or freehold the denomination of grants, and though deeds

(a) Overseers of the Poor of Hopewell v. Overseers of the Poor of Amwell,

1 Halsted's Rep. 169. Perrine v. Cheeseman, 6 ib. 174. Revised Laws of New Jersey, 305, § 1.

(b) 1 Blackford's Ind. Rep. 241.

(c) Warren v. Lynch, 5 Johns. Rep. 239.

(d) Story, J., in Durant v. Ritchie, 4 Mason's Rep. 57.

(e) French v. French, 3 N. H. Rep. 239. Parsons, Ch. J.6 Mass. Rep. 32.

(f) 4 Kent's Com. 461, 491.

of bargain and sale, and of lease and release, may be continued to be used, they are to be deemed grants. It is competent by that form of conveyance to convey all the estate and interest of the grantor, which he could lawfully convey, and it passes no other or greater interest. (a)

In all the states of the Union, except Louisiana, the conveyance of real estate may be wholly or partially defeated if it has not been acknowledged or proved and registered. These solemnities form an important part of the statute law of the several states. The statute of each state provides for the manner in which deeds are to be acknowledged or proved when they are executed in that state, when they are executed in some other state of the Union, or when they are executed in foreign parts.

By the New York Revised Statutes, in order to entitle any conveyance to be recorded, it must be acknowledged by the party or parties executing it, or be proved by a subscribing witness thereto, before any one of the following officers.

1. If acknowledged or proved within the state, the chancellor, justices of the supreme court, circuit judges, supreme court commissioners, judges of county courts, mayors and recorders of cities, and commissioners of deeds, are competent for that purpose, but no county judge, or commissioner of deeds for a county or city, can take any such proof or acknowledgment out of the city or county for which he was appointed.

2. If acknowledged or proved out of the state, but within the United States, the chief justice and associate justices of the supreme court of the United States, district judges of the United States, the judges or justices of the supreme, superior, or circuit court of any state or territory within the United States, and the chief judge or any associate judge of the circuit court of the United

(a) N. Y. Rev. Stat. vol. 1, 738.

States in the district of Columbia, but no proof or acknowledgment taken by any such officer will entitle a conveyance to be recorded, unless taken within some place or territory to which the jurisdiction of the court to which he belongs extends. (a)

If the party or parties executing such conveyance be or reside in any state or kingdom in Europe, or in North or South America, it may be acknowledged or proved before any minister or plenipotentiary, or any minister extraordinary, or any chargé d'affaires of the United States, resident or accredited within such state or kingdom. If he be or reside in France, it may be acknowledged or proved before the consul of the United States appointed to reside at Paris, and if in Russia, it may be acknowledged or proved before the consul of the United States appointed to reside at St. Petersburgh. (b)

If the party to such conveyance be or reside within the United Kingdom of Great Britain and Ireland, or the dominions thereunto belonging, the same may be acknowledged or proved before the mayor of the city of London, the mayor or chief magistrate of the city of Dublin, or the provost or chief magistrate of the city of Edinburgh, or before the mayor or chief magistrate of Liverpool, or before the consul of the United States appointed to reside at London. (c)

It may be acknowledged or proved, without the United States, before any person specially authorized for that particular purpose by a commission under the seal of the Court of Chancery of the state, to be issued to any reputable person residing in or going to the country where such proof or acknowledgment is to be taken. (d)

No acknowledgment of any conveyance having been executed can be taken by any officer, unless the officer

(a) 1 R. L. p. 369, § 1.

(c) Sect. 6.

(d) Sect. 8.

1 R. L. p. 370, § 3.
Laws of 1817, c. 58,

(b) Sect. 5. Laws of 1816, p. 118. Laws of 1817, p. 58. § 1 and 2.

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