Grant by married

woman, how acknowl. edged.

Power of

attorney of married

1. A grant.

2. A power of attorney, authorizing the execution of a

real instrument.

3. A revocation of power of attorney authorizing the execution of a real instrument.

4. An executory contract, for sale and purchase of real property.

5. An instrument creating or declaring trusts.

6. An instrument granting or reserving a power.
7. An instrument granting an easement or servitude.
8. A lease for a term of more than one year.
9. A marriage settlement contract.

[New section.]

NOTE.-Subd. 1 is based on "Conveyances," Secs. 1, 24; Subd. 2, on Sec. 27; Subd. 3, on Sec. 28; Subd. 4, on Sec. -; Subd. 7, on N. Y. C. C., Sec. 530; Subd. 8, on "Fraudulent Conveyances," Sec. 6; Subd. 9, on "Husband and Wife," Sec. 16. Mortgages, liens, etc., will be treated under their appropriate Title and declared subject to the recording laws. The standard is fixed by these sections, and other subjects will be referred to it to determine requirements and effects.

We have grouped all instruments affecting title, and called them "Real Instruments," as a matter of convenience in referring to all the instruments as a class. To call an assignment of mortgages à lease, and an executory contract conveyances, and their holders purchasers, by legislative definition ("Conveyances," Sec. 36), is simply a barbarous perversion of the words "conveyances" and "purchasers." It will require an amendment of Sec. 36, "Conveyances," to let in executory contracts as conveyances,' as their recording has been authorized since the passage of the Act concerning conveyances.

"

SEC. 1093. No estate in the real property of a married woman passes or is affected by any grant or instrument purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed by Secs. 1179 and 1180.

[New section.]

N. Y. C. C., Sec. 486; "Husband and Wife," Sec. 6;

66

Conveyances," Secs. 19-23 (inclusive); Morrison vs. Wilson, 13 Cal., 494; Landers vs. Bolton, 26 Cal., 393.

SEC. 1094. A power of attorney of a married woman, woman, how authorizing the execution of an instrument affecting her real property, has no validity for that purpose until ac

acknowl

edged.

knowledged by her in the manner provided in Secs. 1179 and 1180.

[New section.] Stats. 1863, 165. General references to the subject: Mott vs. Smith, 16 Cal., 533; Dentzel vs. Waldie, 30 Cal., 138; Dow vs. Gould and Curry S. M. Co., 31 Cal., 629; Raccoullat vs. Sansevain, 32 Cal., 376.

SEC. 1095.

When an attorney in fact executes an
instrument affecting real property, he must subscribe the
name of his principal to it, and his own name as attorney
in fact.
[New section.]

Fisher vs. Salmon, 1 Cal., 413; Salmon vs. Hoffman, 2
Cal., 138; Videau vs. Griffin, 21 Cal., 389; Dupont
vs. Wertheman, 10 Cal., 354; Hunter vs. Watson, 12
Cal., 363; Morrison vs. Bowman, 29 Cal., 337.

SEC. 1096. Private seals are not required for any purpose. All distinctions between sealed and unsealed instruments are abolished. A written instrument prima facie imports a consideration.

[New section.]

NOTE. A serious, but desirable, innovation. The bar fully understand the subject. No time or space will be employed in elaborating the reasons.

SEC. 1097. The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it. [New section.]

SEC. 1098. A witness to any instrument mentioned in Sec. 1092 is not necessary to its validity. Such witness is necessary only as a means of proving the instrument for record under Sec. 1187.

[New section.]

NOTE. It distinctly expresses what may be implied from other sections. Substitute for the following (Sec. 484), from the New York Civil Code (the proof and effect of nonrecording are provided for in other sections): "A grant of an estate in real property, other than an estate for years or at will, must be sealed by the grantor or his agent; and if not duly acknowledged, previous to its delivery, according to the provisions of Chap. IV of this Title, its subscription and seal must be attested by at least one witness; or, if not so attested, it has no effect as against a subsequent purchaser or encumbrancer, or those claiming under him, until so acknowledged."

Form of simple grant

ARTICLE II.

FORM AND EFFECT OF TRANSFER-CODE COVENANTS.

SECTION 1102. Form of simple grant.

1103. No implied covenants in grants.

1104. Code Covenants, special and general..

1105. Special Code Covenants, what.

1106. General Code Covenants, what.

1107. Form of grant, with Special Code Covenants.

1108. Form of grant, with General Code Covenants.

1109. Construction of Code Covenants.

1110. Covenant "against prior grants made by the grantor," what. 1111. Covenant "against encumbrances imposed or suffered by

the grantor," what.

1112. Covenant "of ownership," what.

1113. Covenant "against encumbrances," what.

1114. "Encumbrances" defined.

1115. Grantee not barred from obtaining rescission of grant, or

damages for false representations.

1116. Code Covenants personal covenants.

1117. Damages for breach of certain Code Covenants, how deter

mined.

1118. Damages for breach of certain other Code Covenants, how determined.

1119. Liabilities on other than Code Covenants depend upon what. 1120. What passes by grant.

1121. A fee simple title presumed, when.

1122. Any title subsequently acquired by grantor passes to grantee,

when.

1123. Grant, how far conclusive on purchasers.

1124. Conveyances by owner for life or for years.

1125. Title to highway.

1126. Attornment by tenant, when unnecessary. Liabilities of

tenant.

1127. Lineal and collateral warranties.

1128. Attornment to a stranger.

1129. What easements pass with property.

SEC. 1102. A grant of real property may be made in

substance as follows:

This grant, made the
by A. B., of

grantee, witnesseth:

That the grantor grants to the grantee all the real property situated in

follows:

bounded and described as

Executed by:

A- B.

NOTE. The following is Sec. 485 of the New York Civil Code, containing the form of grant:

"A grant of an estate in real property may be made in substance as follows:

"This grant, made the
between A. B., of

D., of

-

day of

in the year

of the first part, and C.
of the second part, witnesseth :

"That the party of the first part hereby grants to the
party of the second part, in consideration of
now received, all the real property situated in
bounded

dollars,
and

"Witness the hand and seal of the party of the first part.
"A. B. [Seal].”

In England, the following form is prescribed by 8 and 9
Vic., Chap. 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 C. D. 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 here-
unto set their hands and seals."

Chancellor Kent (4 Com., 461) recommends the follow-
ing:

"I, A. B., in consideration of one dollar to me paid by
C. D., grant to him the lot of land [describing it].
"Witness my hand and seal," etc.

A form briefer still was held sufficient in Kentucky
(Chiles vs. Conley, 2 Dana, 23).

SEC. 1103. No covenant is implied in any grant of an estate in real property, whether it contains express cove nants or not, except as provided by the Title on Hiring.

N. Y. C. C., Sec. 489.

SEC. 1104. There are four express covenants, known as Code Covenants, pertaining to grants, and distinguished as Special Code Covenants and General Code Covenants. [New section.]

SEC. 1105. Special Code Covenants are-
1. Against prior grants made by the grantor.

2. Against encumbrances imposed or suffered by the grantor.

[New section.]

NOTE.-Supplementary to Act concerning conveyances. (Stats. 1855, 171, Sec. 9.)

SEC. 1106. General Code Covenants are

1. Of ownership.

2. Against encumbrances.

[New section.]

NOTE.-See note to Sec. 1112.

SEC. 1107. A grant of an estate in real property, with the Special Code Covenants, may be made in substance as follows:

Form of

grant, with

This grant, made the

by A. B, of

grantee, witnesseth :

day of, in the year grantor, to C. D., of

That the grantor grants to the grantee all the real property situated bounded and described as follows:

This grant carries with it the following Special Code Covenants:

1. Against prior grants made by the grantor.

2. Against encumbrances imposed or suffered by the grantor. Witnessed by:

E- F

[New section.]

Executed by:

A- B

SEC. 1108. A grant of an estate in real property, with

General Code the General Code Covenants, may be made in substance

Covenants.

Construction of Code

Covenants.

Covenant "against

prior grants

made by the grantor," what.

as follows:

This grant, made the
--, by A. B., of

grantee, witnesseth:

That the grantor grants to the grantee all the real property situated - bounded and described as fol

lows:

This grant carries with it the following General Code Covenants:

SEC. 1109. When any Code Covenant is inserted in a grant, by the name and form provided in the two preceding sections, it shall be construed as a covenant, by and on the part of the grantor and his personal representatives, to and with the grantee and his personal representatives, to the effect as provided respectively in the next four sections.

[New section.]

SEC. 1110. A covenant "against prior grants made by the grantor" is a covenant that previous to the delivery of the grant the grantor had not granted the same property, or any right, title or interest therein, to any person other than the grantee.

[New section.]

Based on 66

Conveyances," Sec. 9-supplementary Act.