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the death of the first grantee, devisee, or donee in tail, first pass according to the course of the common law by virtue of such devise, gift, grant, or conveyance. (R. S., p. 104, Sec. 6.)
If any person shall sell and convey to another by deed or conveyance purporting to convey an estate in fee simple absolute in any tract of land or real estate lying and being in this state, not then being possessed of the legal estate or interest therein at the time of the sale and conveyance, but after such sale and conveyance the vendor shall become possessed of and confirmed in the legal estate to the land or real estate so sold and conveyed, it shall be taken and held to be in trust and for the use of the grantee or vendee, and the conveyance aforesaid shall be held and taken, and shall be as valid as if the grantor or vendor had the legal estate or interest at the time of said sale or conveyance. (R. S., p. 104, Sec. 7.)
Every person in the actual possession of lands or tenements under claim and color of title made in good faith, and who shall for seven successive years continue in such possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his or her paper title. All persons holding under such possession by purchase, devise, or descent before said seven years shall have expired, and who shall continue such possession, and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section. (R. S., p. 104, Sec. 8.)
Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title. All persons holding under such tax payer by purchase, devise, or descent before said seven years shall have expired, and who shall continue to pay the taxes as aforesaid, so as to complete the payment of taxes for the term aforesaid, shall be entitled to the benefit of this section: Provided, however, if any person having a better paper title to said vacant and unoccupied land shall, during the said term of seven years, pay the taxes assessed on said land for any one or more years of the said term of seven years, then and in that case such tax payer, his heirs and assigns, shall not be entitled to the benefit of this section.* (R. S., p. 104, Sec. 9.)
* The Supreme Court of the United States did, not long ago, decide a case, which refers to the above, and regarding which the Chicago Democratic Press, dated Feb. 16, 1856, contains the following letter:
QUINCY, February 5, 1856. Dear Sir:- I have just received the opinion of the Supreme Court of the United States in the case of Wright vs. Matteson.
The two preceding sections shall not extend to lands or tenements owned by the United States or this State, nor to school and seminary lands, nor to lands held for the use of religious societies, nor to lands held for any public purpose, nor shall they extend to lands or tenements when there shall be an adverse title to such lands or tenements, and the holder of such adverse title is under the age of twenty-one years, insane, imprisoned, femme covert, out of the limits of the United States, and in the employment of the United States or of this State: provided such person shall commence an action to recover such lands or tenements so possessed as aforesaid within three years after the several disabilities herein enumerated shall cease to exist; and shall prosecute such action to judgment, or in case of vacant and unoccupied land shall within the time last aforesaid pay to the person or persons who have paid the same all the taxes, with interest thereon at the rate of twelve per cent. per annum, that have been paid on said vacant and unoccupied land. (R. S., p. 104, Sec. 10.)
All deeds whereby any estate of inheritance in fee simple shall hereafter be limited to the grantee and his heirs or other legal representatives, the words "grant,” “bargain,” “sell,” shall be adjudged an express covenant to the grantee, his heirs and other legal representatives, to wit: that the grantor was seized of an indefeasible estate in fee simple, free from encumbrances done or suffered from the grantor, except the rents and services that may be reserved, as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed. And the grantee, his heirs, executors, administrators, and assigns, may in any action assign breaches as if such covenants were expressly inserted: Provided, always, that this law shall not extend to lease at rack rent, or leases not exceeding twenty-one years, where the actual possession goes with the lease. (R. S., p. 105, Sec. 10.)
Every deed conveying real estate which by any thing therein contained shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage. (R. S., p. 105, Sec. 12).
It is decided in my favor – that is, for Wright - and is full, satisfactory, and conclusive Under this decision, all persons who have had possession of land for seven years, and have paid taxes during that time, under any of our tax titles, from 1823 down to the present time inclusive, will be fully and completely protected.
The Court say, that however inadequate the deed may be to carry the true title to the pro. perty, ánd however incompetent may have been the power of the grantor, yet a claim asserted under such deed is strictly a claim under color of title, and one which will draw to the possession of the grantee the protection of the statutes of limitations. No matter whether the sale was regular or irregular, or on the right or wrong day, it is still color of title, and so it is if the party were in possession of the land when he purchased at the tax sale and acquired his deed. Nor is it necessary that he shall connect with any source of title.
If he possesses in good order a deed from one having no pretence to title, it is the samo thing. It is color of title, and protected by the statute.
0. H. BROWNING.
Every estate in lands which shall be granted, conveyed, or devised to one, although words heretofore necessary to tranfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed, or devised by construction or operation of law. (R. S., p. 105. Sec. 13.)
When an estate hath been or shall be by any conveyance limited in remainder to the son or daughter, or to the use of the son or daughter, of any person, to be begotten, such son or daughter, born after the decease of his or her father, shall take the estate in the same manner as if he or she had been born in the lifetime of the father, although no estate shall have been conveyed to support the contingent remainder after his death. (R. S., p. 105, Sec. 14.)
All aliens residing in this State may take by deed, will, or otherwise, lands and tenements, and any interest therein, and alienate, sell, assign, and transmit the same to their heirs or any other persons, whether such heirs or other persons be citizens of the United States or not, in the same manner as natural born citizens of the United States or of this State might do; and upon the decease of any alien having title to or interest in any lands or tenements, such lands and tenements shall paşs and descend in the same manner as if such alien were a citizen of the United States; but all such persons shall have the same rights and remedies, and in all things be placed on the same footing, as natural born citizens and actual residents of the United States. (R. S., p. 47,
EXECUTION OF DEEDS AND MORTGAGES. The execution of Deeds and Mortgages is regulated by the following provisions of the Revised Statutes :
Conveyances may be written or printed, must set forth the residence and the name of the parties, the land, and the terms of the grant, must be legible, and upon some material susceptible of delivery and record.
They must be signed by the party or parties thereto. The provisions of the Statutes, however, permit the subscribing of a deed by an attorney of the grantor, if he should have been thereunto authorized by an instrument in writing, executed and acknowledged by his principals, with all the formalities required in the execution of a deed, and not otherwise.
They should be attested by two subscribing witnesses, unless acknowledged previous to their delivery.
They must be sealed. A scrawl of the pen may be used as a seal. It is
usual to flourish an intended circle at the right of the signature, with the initials L. S. inserted in it.
FORM OF ACKNOWLEDGMENT.
one thousand eight hundred and
before me, John Hancock, a notary public, personally appeared John Walker and Mary his wife, to me known to be the real persons whose names are subscribed to the foregoing conveyance, and severally acknowledged that they executed the same, and the said Mary, on an examination separate and apart from her husband, having had the contents thereof fully made known to her by me, acknowledged that she executed the same, and relinquished her dower to the lands and tenements therein mentioned, voluntarily, freely, and without any compulsion of her said husband.
In witness whereof, I have hereunto set my hand and notarial seal of office, the day and year first above written. (Seal of office.)
John Hancock, Notary Public. All persons of full age, except femmes covert, idiots, and lunatics, are entitled to convey real estate, subject to the provisions of the Statute. When any married woman shall join her husband in the execution of a deed or mortgage of his real estate, and acknowledge the same as mentioned below, she may relinquish her right of dower. (R. S. 106, Sec. 17.)
Deeds containing the words "grant,” “bargain," "sell,” are adjudged to express a covenant to the grantee and his heirs and representatives, that the grantor was seized of an indefeasible estate in fee simple, free from incumbrances done or suffered by the grantor, except the rents and devises that may be reserved, and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed. (R. S. 105, Sec. 11.)
Every deed conveying real estate, which, by anything therein contained, shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage. (R. S., Sec. 12.)
PROVISIONS OF THE STATUTES CONCERNING PROOF AND ACKNOWLEDGMENT OF
DEEDS AND MORTGAGES, IN ILLINOIS. All instruments for the conveyance of real estate in this State, or any interest therein, affecting the rights of any person in law or equity, must be acknowledged or proved before one of the following officers, viz. : When acknowledged or proven in Illinois, before any Judge, Justice, or Clerk of any Court of Record therein, having a seal, or before any Mayor of a city, Notary Public, or Commissioner authorized to take the acknowledgment of deeds, having a seal, or any Justice of the Peace. When acknowledged or proved without the State of Ilinois, and within the United States or their territories, or the District of Columbia, before an officer commissioned for the purpose by the Governor of Illinois, in conformity with the laws of such State, Territory, or District; provided, that any Clerk of a Court of Record within such State, Territory, or District, shall, under his hand and the seal of such Court, certify that such deed or instrument is executed and acknowledged, or proved, in conformity with the laws of such State, Territory, or District. When acknowledged or proven without the United States, before any Court of any Republic, State, Kingdom, or Empire, having a seal, or any Mayor or chief officer of any city or town, having a seal, or before any officer authorized, by the laws of such foreign country, to take acknowledgments of conveyances of real estate, if he have a seal, such deed to be attested by the official seal of such Court or officer; and in case such acknowledgment is taken other than before a Court of Record, or Mayor, or chief officer of a town, having a seal, proof that the officer taking such acknowledgment was duly authorized by the laws of his country to do so, shall accompany the certificate of such acknowledgment (R. S. 105, Sec. 16.)
The officer taking the acknowledgment must certify, that the person offering to make such acknowledgment is personally known to him to be the real person whose name is subscribed to the deed as having executed the same, or that he was proved to be such by a credible witness (naming him). (R. S. 107, Sec. 20.)
In case of married women, in addition to the above, he shall acquaint her with the contents of the deed, and shall examine her separately and apart from her husband, whether she executed the same, and relinquished her dower to the lands and tenements therein mentioned, voluntarily, freely, and without compulsion of her said husband, and shall certify the same on or annexed to the deed. (R. S., Sec. 17.)
RECORDING OF DEEDS AND MORTGAGES, AND THE EFFECT THEREOF. All instruments relating to or affecting the title to real estate in this State, must be recorded in the county in which such real estate is situated. (R. S. 108, Sec. 22.)
All deeds, mortgages, and other instruments of writing, which are required to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record. (R. S., Sec. 23.)
All powers of attorney to convey lands are required to be recorded before any deed, executed under the authority contained in the power, goes upon record. (R. S., Sec. 24.)