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mount, or to maintain the title of the land; but not such as concern the possession. So where a conveyance was made with a warranty against the grantor and his heirs only, the purchaser was entitled to the deeds without an express grant of them; for, as he could not recover in value upon this warranty in case of eviction by a stranger, the defense of the title was at his peril. (1 Coke Litt. 6 a.)

This doctrine was made subservient to the interests of the parties. If a man enfeoffed two, to them and their heirs, and gave the ancient charters to one of them and he died, the survivor should have all the charters, and not his heir, to whom the gift was made; for he could sustain no loss from the want of them, nor receive any benefit by them if he had them; but it is otherwise of the survivor; and he should have them as things which went with the land.

These principles owed their origin to the doctrine of warranty; but though that has gone into disuse in England, and has been abolished in this state, these principles continue substantially the same. The title deeds are things which go with the inheritance, descend with it, and pass with it by conveyance without being named. (1 Sugd. Vend. 523, Perk. ed. Austin v. Croome, 1 Carr. & Marsh. 653. 3 Ves. jun. 226.)

There can be no doubt in the application of these principles to modern conveyancing, that where a man conveys the whole lot of which he has the title, by a conveyance in fee, without any covenants of warranty, the title deeds should be given to the grantee, as an incident to the grant. The grantor has no longer any interest in them; but they may be of essential value to the grantee, to protect his title against adverse claimants.

But where a man sells only a part of the estate, and retains the balance himself, the purchaser is not entitled, as an incident of the grant, to the possession of the deeds, unless they are expressly granted to him by the terms of the deed. (Yea v. Field, 2 Term Rep. 708.)

So where lands held under one title are sold to two or more persons, in separate parcels, the deeds, at common law, are usually granted to him who takes the largest part; but in all cases where a person cannot obtain the evidences, he is entitled, at the expense of the vendor, unless it is stipulated expressly to the contrary, to attested copies of all such as are not of record. (Boughton v. Jewell, 15 Ves. 176. Dare v. Tucker, 6 id. 460.) He is also entitled

to a covenant from the vendor, or the person having the larger part of the estate, to produce the deeds themselves, in order that the purchaser may be enabled to defend his title and possession. Although the purchaser of part of the estate takes such a covenant for the production of the deeds, yet, if he afterwards obtain possession of them, no person can recover them from him who has not a better right to them than he has. (Yea v. Field, supra.)

There is great inconvenience in having the title-deeds, says Lord St. Leonards, (1 Sug. Vend. 526, Perk. ed.,) in the hands of a seller who has parted with the whole of the property, although he has covenanted to produce them, for the obligation is soon forgotten or disregarded, and the deeds accordingly are in danger of being neglected or destroyed, unless by being sometimes called for, they produce emolument in the hands of a solicitor.

The statute relative to the recording of conveyances has relieved our conveyancers from some embarrassments which formerly existed. The revised statutes of 1830 require that all conveyances of real estate within this state, thereafter made, shall be recorded in the office of the clerk of the county where the land is situated, and when not so recorded, they are declared to be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded. (1 R. S. 756, § 1.) This statute is a mere revision of the act of 1788, and the subsequent enactments on the same subject. (2 Greenleaf, 99. 1 K. & R. 478. 1 R. L. 369.) An unrecorded deed has always been good, and still is valid against the grantor and his heirs. (Jackson v. West, 10 John. 466, per Kent, Ch. J.) The present statute is mandatory as to all deeds thereafter made, and it holds out inducements to the recording of them which practically makes the usage of recording universal. A transcript of a duly recorded deed is an original by statute for all the purposes of pleading and proof. (1 R. S. 759, § 17. Clark v. Nixon, 5 Hill, 36. Dumfrey v. Tyler, 3 Duer, 73, 95.)

It would seem, in this state, that a covenant to produce the orig inal deeds cannot be necessary in any case. If the deed has not already been recorded, the purchaser will doubtless insist on its being recorded at the expense of the vendor, in the proper county, if it has been duly proved or acknowledged; and in cases which re

quire it, deposited in the same office, for the inspection of all persons desiring to examine the same. (1 R. S. 761, §§ 30-32.)

A deed duly acknowledged is evidence, not only of a transfer of the title, but of the covenants contained in it. (Morris v. Wadsworth, 17 Wend. 103.) In order to be evidence, the transcript of the record must include the whole of it-that is, the record of the proof or acknowledgment as well as of the deed itself. (Per Bronson, J. in Morris v. Keyes, 1 Hill, 540.)

The counsel for the purchaser will see that the deeds under which the grantor derives his title have been legally proved or acknowledged, and recorded in the proper county. The custody of the originals becomes then a matter of subordinate importance; but I believe it is usual, when the whole land covered by the deed is conveyed, without covenants, to deliver to the grantee the muniments of the grantor's title. But when a grantor conveys with covenant of seisin, he is not bound to deliver the title deeds to the grantee. (Abbott v. Allen, 14 John. 248.) And the learned judge who delivered the opinion of the court in the last case, expressed the opinion that the grantor, who had given a covenant for quiet enjoyment and general warranty, is in the same condition, and may retain in his own hands the evidences of his title.

This rule is not therefore confined to covenants which run with the land, as a warranty, but extends to such as do not, as the covenant of seisin, and the power to convey, and the covenant against incumbrances, which are broken the moment they are made. (Greenly v. Wilcox, 2 John. 1. Dimmick v. Lockwood, 10 Wend. Rep. 142.)

The same principles are applicable to cases where the title is derived by devise. The devisee is not, by virtue of his devise, entitled to the custody of the will, or of any certificate or other muniment of title from the executors or the heir. He is entitled to have the will, under which he derives his title, proved in the proper court, as a will of real estate, and recorded with the proofs thereof, in the book provided for that purpose. He has a right to institute that proceeding himself against the heirs, executors or other parties having an interest in the question, and can thus have the validity of the will established by judicial authority. (L. of 1837, ch. 460, § 4. 3 R. S. 146, 5th ed. Willard on Executors, 167-174.)

The exemplification of the will alone, without the proofs, cannot be received in evidence. The whole record, including the proofs,

must be certified. The record itself is made evidence, and this the court say includes the proof as well as the will. The transcript of the record, certified by the proper officer and sealed with the seal of the court, is also as effectual as the original will would be if produced. (Morris v. Keyes, supra.)

But though the record and the transcript thereof are both made legal evidence, they are not conclusive, but only prima facie evidence of the authenticity of the will in the one case, and of the deed in the other. The instrument may still be assailed by contrary proof. (Id. Jackson v. Rumsey, 3 John. Cases, 234. 2 R. S. 58, § 15.)

It is not usual in this state to insist on a covenant from the vendor to produce the original deeds or will, when the same have been recorded. Such requirement would be vexatious to the one party, without being attended with any benefit to the other.

A good title may sometimes be made to an estate, although the origin cannot be shown by any deed or will. But it must be shown that there has been such a long, uninterrupted possession, enjoyment and dealing with the property, as afford a reasonable presumption that there is an absolute title in fee simple. (Cottrel v. Watkins, 1 Mason, 363.)

In many of the cases, when a title has become perfect by adverse enjoyment, the owner can show no documentary evidence which would in the beginning have been accepted by a purchaser as a valid title. The acquiescence of all adverse claimants is presumed by lapse of time. The increased value of the property, by the growth of the country or the industry of the occupant, are constantly strengthening a title, which perhaps began in wrong; until at length it ripens into a right. The statute of limitations, as well as the principles on which the doctrine of title by adverse enjoyment rests, is founded in wisdom. And it may be doubted whether society could continue to prosper without it. It imparts to good faith and honest industry a promise of protection; and thus holds out inducements to make improvements which would otherwise be neglected. (See ante, pp. 351, 352.)

SECTION VI.

Of the Form, Arrangement and Substance of the Abstract.

The form of the abstract has reference not only to its mechanical execution, but the lucid arrangement of its different parts. As the object is to communicate accurate information on the subject of the title under investigation, it should be so made as to be easily examined, and readily understood. It should be drawn or engrossed in a fair hand, on good paper, so that no time need be wasted in deciphering its meaning, or arranging the order in which the different parts are stated. The parts of the deed, or will, under which the title is claimed, should be stated truly, and in the language of the instrument abstracted. The lines should be sufficiently open to give room for interlineations if need be, and the margin sufficiently broad to admit of notes of inquiry by the counsel who is employed to examine it and investigate the title. If the title be complicated, the counsel will need the whole powers of his mind, to combine the different parts, and to bring him to a safe result. Sometimes the abstract is accompanied with full copies of the deeds and wills under which it is derived. In some cases it is presumed that such copies may be important; but if the abstract be faithfully made, they will not be indispensable.

Every abstract should have a head or title. It should disclose the name of the person whose title is to be considered, the interest he has in it, the lands to which attention is to be directed, the name of the town and county in which it is situated, and if there is any difference between the ancient description of it, and that by which it is now known, the abstract should so connect the two as to show the identity of them.

The form given by Mr. Preston in his treatise, (1 Prest. on Abs. 36,) may be adopted by so varying the phraseology as to conform to our style of description.

It may be to this effect: "An abstract of the title of A. B. to the fee simple or inheritance of a farm of 160 acres of land, in the town of Saratoga Springs, in the county of Saratoga and state of New York, being in the allotment of the patent of Kayade

rosseras, so called."

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