CHAPTER II. TRANSFER OF REAL PROPERTY. ARTICLE I. MODE OF TRANSFER. II. EFFECT OF TRANSFER. Requisites for transfer of certain estates. ARTICLE I. MODE OF TRANSFER. SECTION 1091. Requisites for transfer of certain estates. 1093. Grant by married women, how acknowledged. 1094. Power of attorney of married women, how acknowl edged. 1095. Attorney in fact, how must execute for principal. 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. NOTE.-Sandfoss vs. Jones, 35 Cal., p. 481. A sale of land at auction, where no note or memorandum is made by the auctioneer, and no writing exists, is void. People vs. White, 6 Cal., p. 75. A verbal authority to one man to take up a mining claim for another is sufficient.-Gore vs. McBrayer, 18 Cal., p. 582. Statute of Frauds applies as well to conveyances made by corporations as to those made by individuals.-Smith vs. Morse, 2 Cal., p. 524; Board of Education vs. Fowler, 19 Cal., p. 21. A lease for more than one year, executed by the lessees and by an agent of the lessors, but who had no written authority to do so, is void.-Folsom vs. Perrin & Dodge, 2 Cal., p. 603. A release of an equitable estate in land must be in writing and subscribed by the party granting the same, or by his agent, authorized by writing.-Millard vs. Hathaway, 27 Cal., p. 119; Hoen vs. Simons, 1 Cal., p. 119; Tohler vs. Folsom, 1 Cal., p. 207; Videau vs. Griffin, 21 Cal., p. 389; McLaren vs. Hutchinson, 22 Cal., p. 187; Bayles vs. Baxter, 22 Cal., p. 575. Equity never allows the Statute of Frauds to operate as a protection to fraud, but will, for the purpose of showing that fraud has been committed or attempted, admit 1092. A grant of an estate in real property may Form of 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." NOTE.-In England, the following form is prescribed by 8 and 9 Vic., ch. 119: "This indenture, made, etc., in pursuance of an Act to facilitate the conveyance of real property, between A B and C D, witnesseth: That, in consideration of -, now paid by the said CD to the said A B (the receipt whereof is hereby by him acknowledged), he, the said A B, doth grant unto the said C D, his heirs and assigns, forever, all that "In witness whereof the said parties hereto have hereunto set their hands and seals." Chancellor Kent (4 Com., p. 461) recommends the "I, A B, in consideration of one dollar to me paid A form briefer still was held sufficient in Kentucky It will be observed that the form in Sec. 1092 omits the recital of a consideration. Such a recital is, grant. under the Codes, unnecessary in any kind of a contract. The writing imports a consideration.-See Subdivision 39 of Sec. 1963 of the CODE OF CIVIL PROCEDURE. Grant by married women, how acknowledged. Power of attorney of married women, how acknowledged. 1093. No estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed by Sections 1186 and 1191. NOTE.-A conveyance by a married woman of her separate estate, unless executed and acknowledged in the manner and form prescribed by statute, is inoperative.-Smith vs. Greer, 31 Cal., p. 476; Dow vs. Gould & Curry S. M. Co., 31 Cal., p. 629; Morrison vs. Wilson, 13 Cal., p. 494; Landers vs. Bolton, 26 Cal., p. 393; Ingolsby vs. Juan, 12 Cal., p. 564. But it is not necessary that the husband's name should appear in the body of the deed. It is sufficient if he sign, seal, and acknowledge it.-Dentzel vs. Waldie, 30 Cal., p. 138.The fact that a married woman executes a deed raises no presumption of knowledge on her part of its contents.-Pease vs. Barbiers, 10 Cal., p. 436. The provisions of our statutes requiring a deed conveying the separate property of the wife to be signed by the husband is constitutional.-Dow vs. Gould & Curry S. M. Co., 31 Cal., p. 629. Under the civil law a married woman could convey her property with the bare assent of her husband.-Bodley vs. Furgeson, 30 Cal., p. 511. Hence lands acquired by a married woman under the Mexican laws as her separate property might have been conveyed before the adoption of our statutes by an informal instrument, or possibly without writing, with the bare assent of her husband.-Ingoldsby vs. Juan, 12 Cal., p. 564; see also Bodley vs. Furgeson, 30 Cal., p. 511. 1094. A power of attorney of a married woman, authorizing the execution of an instrument transferring an estate in her separate real property, has no validity for that purpose until acknowledged by her in the manner provided in Sections 1186 and 1191. NOTE.-Stats. 1863, p. 165; Mott vs. Smith, 16 Cal., p. 533; Dow vs. Gould & Curry S. M. Co., 31 Cal., p. 629; Raccoullat vs. Sansevain, 32 Cal., p. 376. In Dentzel vs. Waldie (30 Cal., p. 138) the cases are re- 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. NOTE.-A deed executed by an attorney in fact must be executed in the name of the principal, otherwise nothing will pass by the deed.-Morrison vs. Bowman, 29 Cal., p. 337; Fisher vs. Salmon, 1 Cal., p. 413; Echols vs. Cheney, 28 Cal., p. 157; Videau vs. Griffin, 21 Cal., p. 389. But a deed executed by an attorney (duly authorized) in his own name is good as an agreement, and the principal will be decreed to make a valid conveyance.-Salmon vs. Hoffinan, 2 Cal., p. 138. ARTICLE II. EFFECT OF TRANSFER. SECTION 1104. What easements pass with property. 1105. When fee simple title is presumed to pass. 1106. Subsequently acquired title passes by operation of law. 1108. Conveyances by owner for life or for years. 1109. Grant made on condition subsequent. 1110. Instrument to pass an estate on condition precedent 1111. Grant of rents, reversions, and remainders. 1112. Boundary by highway, what passes. 1113. Implied covenants. 1114. What the term "incumbrances " embraces. 1115. Lineal and collateral warrantees abolished. easements property. 1104. A transfer of real property passes all ease- What ments attached thereto, and creates in favor thereof pass with 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 trans When fee simple title is presumed to pass. Subsequently acquired title passes by operation of law. ferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. NOTE.-Passes all the easements.-Eno vs. Del Vecchio, 4 Duer, p. 53; United States vs. Appleton, 1 Sumn., p. 492; see Huttemeier vs. Albro, 18 N. Y., p. 48; Sparks vs. Hess, 15 Cal., p. 186. A deed conveying a right of way upon land for a ditch is a conveyance of the ditch itself.-Reed vs. Spicer, 27 Cal., p. 57. Passes property permanently used.-Lampman vs. Milks, 21 N. Y., p. 505; Huttemeier vs. Albro, 18 id., p. 48; Thayer vs. Payne, 2 Cush., p. 327; Nicholas vs. Chamberlain, Cro. Jac., p. 121; Robbins vs. Barnes, Hobart, p. 131. Although the question does not seem to have been decided, there can be little doubt that the grantee is entitled to the benefit of these quasi easements, whether existing at the time a grant is bargained for, or at the time when it is actually delivered. 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 in tended. 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. NOTE.-San Francisco vs. Lawton, 18 Cal., p. 477; Lent vs. Morrill, 25 Cal., p. 500; Morrison vs. Wilson, 30 Cal., p. 347; Kirkaldie vs. Larrabee, 31 Cal., p. 457; Green vs. Clark, 31 Cal., p. 593; Cadiz vs. Majors, 33 Cal., p. 289. By the common law there were only two classes of conveyances which were held to operate upon the afteracquired title-those by feoffment, by fine, or by common recovery-and this from their solemnity and publicity, and those by indentures. No other forms of conveyance, in the absence of covenants of warranty, had any effect in transferring the title subsequently acquired. A grant or release only operated upon the estate actually held at the time of its execution by the grantor or releasor. Thus says Bacon: "It is laid down as a general rule that a man cannot grant or charge that which he hath not; and, therefore, if a man grant a rent-charge out of the manor of Dale, and in |