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Proposed Plan for the Improvement of the Present System of Recording.

As a prudential measure, and as the better policy of the law in the adoption of written instruments, only that form should be countenanced which embodies the greatest brevity, together with the clearest and most widely recognized phraseology. It is only in this way that the annoyance of doubt and the harrassing results of dispute can be avoided. We can not well afford to be redundant or obscure, for all know that our language, however properly expressed, sometimes is liable to the conflicting constructions of eminent judges. We admire the simplicity and beauty of the ancient Saxon's legal system; they sought to effect their object with nice brevity and conciseness, and stripped their legal instruments of the encumbrances of superfluous sentences and equivocal expressions. They are justly entitled to the high and learned eulogy of Sir Henry Spelman, who says ("Spelman's Works," by Bishop Gibson, p. 234): "The Saxons, in their deeds, observed no set form, but used honest and perspicuous words to express the things intended with all brevity, yet not wanting the essential parts of the deed; as, the names of the donor and donee; the consideration; the certainty of the thing given; the limitation of the estate; the reservation, and the names of the witnesses."

This brevity and perspicuity has long since been lost, and the deed of the present and of past centuries is burdened with useless words and reiterations.

As one of the fundamental means of effecting the desired reform, that portion of the deed which is redundant, inexpressive, and useless should be discarded.

Chancellor Kent says ("Kent's Commentaries," 11th ed., p. 536) that "the essential parts of a conveyance of land in fee are very brief, and require but a few words."

Lord Coke remarks that "if a deed of feoffment be without premises, habendum, tenendum, reddendum, clause of warranty, etc., it is still a good deed, if it gives lands to another and to his heirs without saying more, provided it be sealed and delivered, and accompanied with livery."

The statute of 8 & 9 Vict., ch. 119, made to facilitate the conveyance of real property, gives the shortest form of conveyance, together with one of the technical and redundant forms; and declares that the short form shall be as effectual as the other. The Act of ch. 124 of the same session gives in like manner a short form of lease.

Chancellor Kent again says (vol. iv., p. 537): "I apprehend that a deed would be perfectly competent in any part of the United States, to convey the fee, if it was to be to the following effect: 'I, A. B., in consideration of one dollar to me paid by C. D., do grant (in New York State "do grant" would be sufficient, but in a few others, as Delaware, Virginia and Kentucky, where deeds operate under the Statute of Uses, as they did in New York prior to 1830, when the Revised Statutes went into operation, "do bargain and sell") to C. D. and his heirs (in New York, Virginia, etc., the words "and his heirs" may be omitted) the lot (describe it). Witness my hand and seal, etc.' But persons," the learned Chancellor continues, "usually attach so much importance to the solemnity of forms, which bespeak care and reflection, and they feel such deep solicitude in matters that concern their valuable interests, to make 'assurance doubly sure,' that generally in important cases the purchaser would rather be at the expense of exchanging a paper of such insignificance of appearance for a conveyance surrounded by the usual outworks, and securing respect and checking attacks by the formality of its manner, the prolixity of its provisions, and the usual redundancy of its language."

The English practice, and the New York practice down to the present time, have 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."

It matters little, in consideration of the expediency or inexpediency of this question, whether the revision of the "ancient deed" is distasteful to our prejudices or objectionable to our poetic sentiments. The simple question is, whether the proposed amendment is wise, and best calculated to work an improvement upon the present deed.

It will be admitted that, if the deed be simplified, something will be accomplished tending towards a realization of our project. Nor is this something of slight importance, if we reflect upon the vast VOL. I.-No. III.-7

number of deeds annually executed and recorded. The time saved and ease acquired would surpass belief; and, as it will hereafter be seen, the useless expense and waste of labor are by no means inconsiderable.

The deed should contain the names of the covenants only; this would obviate the repitition ad infinitum of the long covenants, the legal tenor and effect of which is, and should be, as well understood as other principies of law; and therefore the repetition of the covenant, which is in reality a mere statement of the principle of law, is useless.

This end could be attained by the Legislature enacting a statute recognizing and reciting in full the covenants usually contained in deeds, such as the right to convey, which ordinarily reads: "And I, the said A. B., for myself, my heirs, executors and administrators, do covenant with the said C. D., his heirs and assigns, that I have good right to sell and convey the said premises to the said C. D., his heirs and assigns for ever, as aforesaid," covenant of seisin, the operative words of which are: "That I am lawfully seized in feesimple of the aforegranted premises;" of warranty, the most important of the usual covenants, to-wit: "And that I will, and my heirs and executors, and administrators, shall warrant and defend the same, to the said C. D., his heirs and assigns for ever, against the lawful claims and demands of all persons;" the covenant against encumbrances, "That said premises are free and clear from all encumbrances;" and, lastly, the covenant of further assurance, sometimes inserted in deeds, the object of which is to bind the grantor to execute a further deed or deeds, if necessary, to make the title perfect and secure in the grantee. The statute ought to declare that a deed conveying land by the names of these covenants should be in like manner construed, and have the same effect as if the whole body of the covenants were incorporated therein. The statutory deed would then be like the following: "Know all men, by these presents, that I, A. B., in consideration of to me paid by C. D., etc., the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and convey unto the said C. D., the following described, etc., : To have and to hold the aforegranted premises, with all the privileges and appurtenances to the same belonging, to the said C. D., his heirs. and assigns, to his and their use and behoof for ever. And I, the said A. B., for myself, my heirs, executors, and administrators, do covenant with the said C. D., his heirs and assigns, that I am law

fully seized in fee-simple of the aforegranted premises, that they are free from all encumbrances, that I have good right to sell and convey the same to the said C. D., his heirs and assigns for ever, as aforesaid; and that I will, and my heirs, executors, and administrators shall warrant and defend the same to C. D., his heirs and assigns for ever, against the lawful claims and demands of all persons. In witness whereof, etc.," and usual acknowledgment. This exemplary deed would be the statute, supported by the wide learning of centuries of judicial construction and elucidation; and the short deed, or the deed of the parties, would, in fine, be an individual proclamation or signification, in writing, that their deed be construed, and have the same effect, as the exemplary statute-deed, and would read about as follows: "I, John Doe, of No. West Street, of the City of New York, unmarried, do hereby convey to Richard Roe, of No. East Street, in the City of New York, the house and lot in the Ward of the City of New York, known by the Ward No. —, and Street No. West Street, with full covenants.

(Signed)

JOHN DOE."

The same brevity could be applied to leases and mortgages.2 Our next suggestion is, that the deeds be not literally copied into books of record, but that the originals be kept on file, and certified copies thereof, with the certificate of record,3 returned to the party, and reference had to their principal parts, as before mentioned, in a book, which would be the only book of entry both for conveyances and mortgages, and all other encumbrances, and so arranged that every parcel of land have its separate folio, containing the description of the property and the name of the owner, who, on the principle of mercantile bookkeeping, would be credited with the title he possesses, and charged with the mortgages and other en

'The personal or incidental covenants which are seldom inserted in deeds might be recited in full; these depend upon variable circumstances, and, being unknown, can not be anticipated.

"There is no reason why mortgages, in this State, (New York,) should apparently be conveyances, when in fact and in law they are not, but are intended merely to create a lien. The mortgage is a long and cumbrous instrument, which costs more to record than a deed. Why, then, not transform it into a simple lien, created by a few effective words? In this manner, the mortgage security would become more flexible, and of broader usefulness in the business world, as the lien would then be a subject of super-lien, and could be disposed of in part, if desirable, and in many ways rendered additionally beneficial as collateral security.

3This would give the public the further benefit of access to the original deed in case of doubt or discrepancy; the certified copy in the hands of the grantee would, to all intents and purposes, be equally satisfactory as the possession of the original.

cumbrances thereon. Alphabetical lists of the names of all parties interested in the real property of the county, as owners, lessees, mortgagees, etc., with reference to the folios containing the description of the respective parcels of land, would constitute all that is necessary to the possession of a reliable guide to the searcher, and a sure key to the condensed record for the benefit of all interested in the real estate of the county.

Reference, as before stated, should be made by number to the originals on file, of deeds, leases, mortgages, etc., and be ready of access to all desiring to examine them.

In this manner, a chain of title would be concentrated, clear, and simple to review, and speedily ascertained; in fact, it would be a perfect Register's abstract of title, always entire, as it will contain the record of every transaction, with regard to a certain piece of land, as though it were encircled in a frame. As it is, the record of these transactions is dispersed through many books, or different parts of the same books, requiring time and attention to collect and arrange.

It will also, as we have said, abolish the necessity for a numerous body of clerks, and the whole recording system will be more admirable, by reason of its compactness, completeness, perspicuity, economy, brevity, and despatch; while, at present, it is competent of demonstration that, had the market value of real property remained stationary, and not been inflated by the immense increase of population, and the influence of speculation, the absolute value of many a parcel of land in the city of New York, that has, say within five years last past, changed hands ten times, has as many times been mortgaged, and three times foreclosed, would have been totally exhausted in the expense of searching. Add to this the vast amount of labor thus squandered, which could have been saved and otherwise profitably employed, and we have one of the fruitful sources of high rents, increased taxation, and consequent pauperism.

As soon as the Register has compared the original deed and the copy furnished by the party applying for record, he should at once number it, and give the number, with the time of presentation, as a receipt. In the rural districts, the deeds could be compared and entered in presence of the party, and the certified copy, with a certificate of registration indorsed thereon, immediately returned. In cities where the business is extensive, it may be necessary for the

*The New York Code of Procedure, Sec. 308, in view of the great labor in searching on foreclosure, has granted an extra statutory allowance to the party foreclosing.

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