Publisher's Synopsis
Excerpt from The Clerks' and Conveyancers' Assistant: A Collection of Forms of Conveyancing Contracts and Legal Proceedings, for the Use of the Legal Profession, Business Men, and Public Officers in the United States; With Copious Instructions, Explanations, and Authorities
Time of Commencing. When an abstract is to be prepared, a preliminary question is, at what date the search shall commence. Upon theory, the chain of conveyances should be traced back to some date anterior to the time from which adverse possession is, by force of the statute of limitations, equivalent to a perfect title. But in applying this rule, a large allowance is evidently necessary for the exceptions which the statute makes in favor of infants, luna tics, married women, and other persons under a. Disability to sue. In England, where the limits of the statute are fixed at forty years, the practice requires that titles should be traced back for sixty years; and this rule may be con sidered as desirable in the older states of our Union, except so far as varia tions in the time prescribed for adverse possession to quiet the title, may modify it. In the western states generally, and wherever lands have been settled under grants from the federal government, an abstract is sufficient which traces the title back to the patent granted by the United States. But it is very frequently the case that a client is satisfied to take the title of some owner for granted, knowing that it has been pronounced good in the courts, or bears an unquestioned reputation, and instructs the conveyancer to commence his search at the conveyance by that owner. Where this is intended, the abstract should state in the caption the instruction given, in order that the conveyancer may appear to take no responsibility for the anterior period.
Facts not Matter of Record. There are many facts affecting title to lands which are not necessarily evidenced by any documents or records subject to the conveyancer's inspection. Hence an abstract may be full that is, may state every important portion of all instruments involved, and may exhibit a good title and yet there may exist facts which create a defect. Marriage may have created an undisclosed right of dower; alienage a liability to escheat; or death have caused the land to descend; yet nothing appear upon the record to indicate the fact. So it may be that the seller is kept out of possession by an adverse claimant; in which case, in several of the states, he is, by statute, for bidden to convey.1 And there are other similar cases. No absolute duty rests upon the conveyancer to elicit facts of this description. He should make such inquiry as the record suggests and the circumstances admit. When inquiry is made as to some fact of this description, it is usual and convenient to annex to the abstract the affidavit of the informant upon the matter in question.
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