A contract (Deed) must be offered and accepted. If you never signed in acceptance and acknowledgment of the Deed (contract) the contract is incomplete and your rights in the contract are not secured. You are in possession of the land but not the rights to ownership of the land until you accept the contract. The Maxim of Law is “He that gives never ceases to possess until he that receives begins to possess.” You receive possession of the legal/equitable title rights to ownership of the land by signing in acceptance and acknowledgment of the deed contract.
A conveyance of real estate is a transfer of real estate from one person to another. A deed is one form of conveyance, transferring a title to real estate from one person to another. Title means ownership of real estate. The person transferring title is known as the “grantor” and the person receiving the title is known as the “grantee.” There are several types of deeds. One form of deed is a warranty deed.
A conveyance of real estate is a transfer of real estate from one person to another. A deed is one form of conveyance, transferring a title to real estate from one person to another. Title means ownership of real estate. The person transferring title is known as the “grantor” and the person receiving the title is known as the “grantee.” There are several types of deeds. One form of deed is a warranty deed. A warranty deed is a deed which warrants good and clear title to the real estate transferred. In many states, it often includes some or all of the following covenants: seisin, quiet enjoyment, right to convey, freedom from encumbrances and defense of title against all claims. Covenant of seisin is an agreement, contract, or promise that the grantor possesses a quantity and quality of land described in the deed or other conveyance. The covenant of quiet enjoyment is an agreement, contract or promise that the grantee to a deed or other conveyance will have the land in peace and without disturbance from other persons with hostile claims to the land. A covenant of right to convey is an agreement, contract or promise that the grantor has a right to transfer title to the land. The covenant against encumbrances is an agreement, contract, or promise that there are no encumbrances against the land described in the deed or conveyance. An encumbrance is a claim by another person against the land. One example of an encumbrance is a mortgage or other lien against the real estate. The covenant of defense of title against all other claims means that the grantor will defend the grantee should other persons or entities make hostile claim against the grantee’s title to real estate which arise from events occurring prior to the transfer of title.
A warranty deed must be in writing and must be signed by the grantor. It must be recorded to put third persons, such as creditors and subsequent purchasers, on notice as to the transfer.
All other warranties or covenants must be expressly stated to be included in the deed.
Per Bouvier’s Law Dictionary and the quoted case under the “To Record” definition “the act of recording was incomplete without a certificate of the acknowledgment,” so one must do a certificate of acknowledgment of acceptance of the deed contract in order for their interest in the property to be duly recorded and their ownership established. Further, as Bouvier’s defines “Deed”(s) are “conveyancing, contracts….”
A contract must be offered and accepted. If you never signed in acceptance and acknowledgment of the deed contract the contract is incomplete and your rights in the contract are not secured. You are in possession of the land but not the rights to ownership of the land until you accept the contract. The Maxim of Law is “He that gives never ceases to possess until he that receives begins to possess.” You receive possession of the legal/equitable title rights to ownership of the land by signing in acceptance and acknowledgment of the deed contract.
Deed contracts that are unduly, which is de facto, recorded, are not to be considered as giving proper notice. To give proper due notice the instrument recorded must be such as is authorized to be duly recorded, and the registry must have been made in compliance with the law and with regard to deeds that means the deed contract must be accepted by the grantee and this acceptance is done and completed with a certificate of acknowledgment, otherwise the registry of the deed is treated as a mere nullity.
This is why after a foreclosure during the eviction process when an unlawful detainer or eviction with warrant to evict case is filed the homeowner foreclosed on and now being evicted is referred to as a tenant and not as a homeowner and the eviction trial is a summary trial not a full trial over title ownership because the homeowner never established a credible ownership claim since he or she did not accept the deed contract for ownership. Therefore, he or she or they can be put out as a tenant all the while the lender and government system previously referred to him or her or them as an owner when in fact they were truly nothing more than a tenant on their own land and renter in their own house because they never properly accepted ownership rights.
The bank does not true have ownership rights at all either because the bank has not deed put in its name in the transaction. So who does own the property truly? In truth it is the County and State that owns or holds the property in trust and the state will favor a creditor especially if a homeowner never secured rights to ownership by duly executing the deed contract.
Bouvier’s Law Dictionary
TO RECORD, the act of making a record.
Sometimes questions arise as to when the act of recording is complete, as in the following case. A deed of real estate was acknowledged before the register of deeds and handed to him to be recorded, and at the same instant a creditor of the grantor attached the real estate; in this case it was held the act of recording was incomplete without a certificate of the acknowledgment, and wanting that, the attaching creditor had the preference. 10 Pick. Rep. 72.
The fact of an instrument being recorded is held to operate as a constructive notice upon all subsequent purchasers of any estate, legal or equitable, in the same property. 1 John. Ch. R. 394.
But all conveyances and deeds which may be de facto recorded, are not to be considered as giving notice; in order to have this effect the instruments must be such as are authorized to be recorded, and the registry must have been made in compliance with the law, otherwise the registry is to be treated as a mere nullity, and it will not affect a subsequent purchaser or encumbrancer unless he has such actual notice as would amount to a fraud. 2 Sell. & Lef. 68; 1 Sch. & Lef. 157; 4 Wheat. R. 466; 1 Binn. R. 40; 1 John. Ch. R. 300; 1 Story, Eq. Jur. §403, 404; 5 Greenl. 272.
Bouvier’s Law Dictionary
DEED, conveyancing, contracts. A writing or instrument, under seal, containing some contract or agreement, and which has been delivered by the parties. Co. Litt. 171; 2 Bl. Com. 295; Shep. Touch. 50. This applies to all instruments in writing, under seal, whether they relate to the conveyance of lands, or to any other matter; a bond, a single bill, an agreement in writing, or any other contract whatever, when reduced to writing, which writing is sealed and delivered, is as much a deed as any conveyance of land. 2 Serg. & Rawle, 504; 1 Mood. Cr, Cas. 57; 5 Dana, 365; 1 How. Miss. R. 154; 1 McMullan, 373. Signing is not necessary at common law to make a deed. 2 Ev. Poth. 165; 11 Co. Rep. 278 6 S. & R. 311.
2. Deed, in its more confined sense, signifies a writing, by which lands, tenements, and hereditaments are conveyed, which writing is sealed and delivered by the parties.
3. The formal parts of a deed for the conveyance of land are, 1st. The premises, which contains all that precedes the habendum, namely, the date, the names and descriptions of the parties, the recitals, the consideration, the receipt of the same, the grant, the full description of the thing granted, and the exceptions, if any.
4. – 2d. The habendum, which states that estate or interest is granted by the deed this is sometimes, done in the premises.
5. – 3d. The tenendum. This was formerly used to express the tenure by which the estate granted was to be held; but now that all freehold tenures have been converted into socage, the tenendum is of no use and it is therefore joined to the habendum, under the formula to have and to hold.
6th. The redendum is that part of the deed by which the grantor reserves something to himself, out of the thing granted, as a rent, under the following formula, Yielding and paying.
7. – 5th. The conditions upon which the grant is made. Vide Conditions.
8. – 6th. The warranty, is that part by which the grantor warrants the title to the grantee. This is general when the warrant is against all persons, or special, when it is only against the grantor, his heirs, and those claiming under him. See Warranty.
9. – 7th. The covenants, if any; these are inserted to oblige the parties or one of them, to do something beneficial to, or to abstain from something, which, if done, might be prejudicial to the other.
10. – 8th. The conclusion, which mentions the execution and the date, either expressly, or by reference to the beginning.
11. The circumstances necessarily attendant upon a valid deed, are the following: 1. It must be written or printed on parchment or paper. Litt. 229, a; 2 Bl. Com. 297. 2. There must be sufficient parties. 3. A proper subject-matter which is the object of the grant. 4. A. sufficient consideration. 5. An agreement properly set forth. 6. It must be read, if desired. 7. It must be signed and sealed. 8. It must be delivered. 9. And attested by witnesses. 10. It should be properly acknowledged before a competent officer.
11. It ought to be recorded.
12. A deed may be avoided, 1. By alterations made in it subsequent to its execution, when made by the party himself, whether they be material or immaterial, and by any material alteration, made even by a stranger. Vide Erasure; Interlineation.
2. By the disagreement of those parties whose concurrence is necessary; for instance, in the case of a married woman by the disagreement of her hushand. 3. By the judgment of a competent tribunal.
13. According to Sir William Blackstone, 2 Com. 313, deeds may be considered as (1), conveyanees at common law, original and derivative. 1st. The original are, 1. Feoffment. 2. Gift. 3. Grant. 4. Lease. 5. Exchange; and 6. Partition. 2d. Derivative, which are 7. Release. 8. Confirmation. 9. Surrender. 10. Assignment 11. Defeasance. (2). Conveyances which derive their force by virtue of the statute of uses; namely, 12. Covenant to stand seised to uses. 13. Bargain and sale of lands. 14. Lease and release. 15. Deed to lead and declare uses. 16. Deed of revocation of uses.
14. The deed of, bargain and sale, is the most usual in the United States. Vide Bargain and Sale. Chancellor Kent is of opinion that a deed would be perfectly competent in any part of the United States, to convey the fee, if it was to the following effect: “I, A, B, in consideration of one dollar to me paid, by C D, do bargain and sell , (or in some of the states, grant) to C D, and his heirs, (in New York, Virginia, and some other states, the words, and his heirs may be omitted,) the lot of land, (describing it,) witness my hand and seal,” &c. 4 Kent, Com. 452. Vide, generally, Bouv. Inst. Index, h. t.; Vin. Abr. Fait; Com. Dig. Fait; Shep. Touch. ch. 4; Dane’s Ab. Index, h. t.; 4 Cruise’s Dig. passim.
15. Title deeds are considered as part of the inheritance and pass to the heir as real estate. A tenant in tail is, therefore, entitled to them; and chancery will, enable him to get possession of them. 1 Bro. R. 206; 1 Ves. jr. 227;11 Ves. 277; 15 Ves. 173. See Hill. Ab. c. 25; 1 Bibb, R. 333: 3 Mass. 487; 5 Mass. 472.
16. The cancellation, surrender, or destruction of a deed of conveyance, will not divest the estate which has passed by force of it. 1 Johns. Ch. Rep. 417 2 Johns. Rep. 87. As to the effect of a redelivery of a deed, see 2 Bl. Com. 308 2 H. Bl. 263, 264.
“Deeds are actually color of title.” [G. Thompson, Title To Real Property, Preparation and
Examination of Abstracts. Ch. 3, Para. 73, P. 93 (1919)]
“In fact, any instrument may constitute color of title when it purports to convey the title to the land, as well as the land itself, although it is void as a muniment of title.” [Joplin Brewing Co. v. Payne, 197 Mo. 422, 94 S.W. 896 (1906)]
“Muniment” means document serving as evidence of inheritances, title to property, etc. Webster Dictionary, 2nd Ed., 1972.
“A color of title is that which in appearance is title, but which in reality is not title.” [Wright v.
Mattison, 18 How. (U.S.) 50 (1855)]
“A warranty deed is like any other deed of conveyance [Mahrenholz v. County Board of School
Trustees of Lawrence County, et. al., 93 Ill ap. 3d 366 (1981)]
“A warranty deed or deed of conveyance is a color of title.” [Dempsey v. Burns, 281 Ill. 644, 65
(1917)] “Deeds constitute colors of title.” [Dryden v. Newman, 116 Ill 186 (1886)]
“A deed that purports to convey a title, constitutes a claim and color of title.” [Busch v. Huston, 75 Ill 343 (1874); Chickering v. Failes, 26 Ill. 508 (1861)]
“A quit claim deed is color of title.” [Safford v. Stubbs, 117 Ill. 389 (1886)]
“Sheriff’s deeds are also colors of title.” [Kendrick v. Latham, 25 Fla. 819 (1889)]
“Thus, any tax deed which purports, on its face, to convey title is a good color of title.” [Walker v. Converse, 148 II. 622 629 (1894)]
“A patent for land is the highest evidence of title and is conclusive as against the government and all claiming under junior patents or titles [United States v. Stone, 2 US 525].”
The patent alone passes land from the United States to the grantee and nothing passes a perfect title to public lands but a patent.” [Wilcox v. Jackson B Peter, US 498]
“Patents are issued (and theoretically passed) between sovereigns . . . and deeds are executed by persons and private corporations without those sovereign powers.” [Leading Fighter v. County of Gregory, 230 n.w. 2d 114, 116 (1975)]
“A patent regularly issued by the government is the best and only evidence of a perfect. The actual patent should be secured to place at rest any question as to validity of entries.” [Young v. Miller, 125 so. 2d 257, 258 (1960)]