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$30. A Deed Absolute May be Shown to be a Mortgage.A deed absolute upon its face, and though registered as a deed, will be valid and effectual as a mortgage between the parties, if it was intended by them to be merely a security for a debt, and this will be so though the defeasance is by an agreement resting in parol, for parol evidence is admissible to show that an absolute deed was intended as a mortgage, and that the defeasance was omitted or destroyed by fraud, surprise or mistake.'

§ 31. A Warranty Deed Raises a Presumption of Title.—It is a well settled rule in the law of real property, that a warranty deed of land, duly executed and recorded, raises a presumption that the grantor had a title which he could convey, and that he has by his deed vested a seizin in the grantee. In the absence of adverse possession, seizin follows the legal title, and seizin in law carries with it the legal possession."

§32. Defective Deeds, etc., Competent to Show Possession, etc.-When the title of the plaintiff is based upon possession under claim of title for the period required by statute, deeds under which his ancestor or devisor claimed, and the plats of the premises in controversy, are competent and admissible to show possession under these by such grantor or devisor and his grantors, and to show that the premises were known by the name or description stated in the complaint or declaration.

Bragg v. Massie, 38 Ala. 89, 103; Bryant v. Crosby, 36 Me. 562; see Richardson v. Woodbury, 43 Me. 206; contra, Hanway v. Thompson, 14 Tex. 142.

'Babcock v. Wyman, 60 U. S. (19 How.) 289 (1856); 4 Kent, Commentaries, 143; Elrington v. Harper, 3 J. J. Marsh. (Ky.) 355; Fay v. Fay, 2 Hay (N. C.) 141; Douglas v. Calverwell, 3 Giff. 251; Lincoln v. Wright, 4 De G. & J. 16; Weathersley v. Weathersley, 40 Miss. 462, 469; Reitenbrogh v. Ludwick, 31 Penn. St. 131, 138; Hodges v. Tennessee M. & F. Ins. Co., 8 N. Y. (4 Seld.) 416: Russell v. Southard, 12 How. 139; Hills v. Loomis, 42 Vt. 552; Jenkins v. Eldredge, 3 Story, 292, 293; Brainerd v. Brainerd, 15 Conn. 575; McIntyre

v. Humphreys, 1 Hoff. Ch. 31; Story, J., in Taylor v. Luther, 2 Sum. 232; Flagg v. Mann, 2 Sum. 538; Hunt v. Rousmaniere, 1 Pet. (U. S.) 1; Slee v. Manhattan Co., 1 Paige, 48; Murphy v. Trigg, 1 Mon. 72; Clark v. Henry, 2 Cow. 324; James v. Johnson, 6 Johns. Ch. 417; Strong v. Stewart, 4 Johns. Ch. 167; Washburne v. Merrills, 1 Day, 139: Marks v. Pill, 1 Johns. Ch. 594; Lord Hardwicke in Dixon v. Parker, 2 Ves. Sen. 225; Maxwell v. Montacute, Prec. in Ch. 526; see Osgood v. Thompson Bank, 30 Conn. 27.

Farwell v. Rogers, 99 Mass. 33 (1868); Proprietors, etc. v. Call, 1 Mass. 484; Ward v. Fuller, 15 Pick. 185; Second Precinct v. Carpenter, 23 Pick. 131; Towne v. Butterfield, 97 Mass. 105.

For this purpose such deeds and plats are not liable to the objection that by reason of defects they are not competent for the purpose of showing paper title.'

$33. Surrender and Destruction of Title Deeds.-Effect of. The surrender by the grantee to the grantor of an unrecorded deed, or its destruction, will not operate to revest the grantor with the title. Upon the delivery of a deed of conveyance, the title vests in the grantee. It is quite immaterial as between him and his grantor what becomes of the deed. The law points out the mode in which the title may be divested or revested in the grantor, and a mere surrender of the instrument of conveyance is not one of them."

There are, however, a few cases to be found in the books holding that the surrender or destruction of a title deed may, under certain circumstances, operate to revest the estate. Thus where A, being seized and possessed of land under an unrecorded deed from B, contracted to sell to C, and for that purpose canceled B's deed, who at A's request made a new conveyance to C, it was held that C's title was valid,' with the exception of these cases presenting a somewhat novel application of the doctrine of estoppel in pais. The general current of authorities will be found in accordance with the rule as stated.'

The question as to whether the delivering up or canceling a lease or deed operated as a surrender or extinguishment of an estate for life or for years to him who has the immediate estate in reversion or remainder seems to

1 Johnson v. Johnson, 70 Mich. 65; 37 N. W. Rep. 712 (1888); King v. Merrett, 67 Mich. 194; 34 N. W. Rep. 689 (1887).

rott, 14 East, 422; Harrison v. Owen, 1 Atk. 519; 1 Shep. Touch. 141; Bull. N. P. 267; 3 Preston Abs. 103; Gilb. Ev. 111, 112; Parshall v. Shirts, 54 Barb. 99; Fawcetts v. Kinney, 33 Ala. 264; Patterson v. Geaton, 47 Mc. 308.

3 Carr v. Dudley, 10 Mass. 403; Holbrook v. Tirrell, 9 Pick. (Mass.) 105; Barrett v. Thorndike, 1 Greenl. (Me.) 73; Farrar v. Farrar, 4 N. H. 191; Tomson v. Ward, 1 N. H. 9; Sawyer v. Peters, 50 N. H. 143; Blaney v. Hanks, 14 Iowa, 400; Parker v. Kane, 4 Wis. 12; 63 U. S. 286; 16 L. C. P. Co. Ed., 286, note.

2 Raynor v. Wilson, 6 Hill (N. Y.), 469; Jackson v. Chase, 2 Johns. (N. Y.) 84, 87; Botsford v. Morehouse, 4 Conn. 550; Morison v. Gould, 7 Wend. (N. Y.) 364; Gilbert v. Bulkley, 5 Conn. 262; Marshall v. Fisk, 6 Mass. 24; Cheeseman v. Whittemore, 23 Pick. (Mass.) 331; Anonymous, Latch, 226 Palm. 403; Roe v. Archbishop, etc., 6 East, 86; Bolton v. Bishop, etc., 2 H. Bl. 259; Doe v. Bingham, 4 B. & Ald. 671; Nelthorp v. Doringtɔn, 2 Lev. 113; Magennis v. MacCullough, Gilb. Eq. Cas. 235; Woodward 427, note. v. Aston, 1 Vent. 296; Perrott v. Per

4 16 L. C. P. Co. Ed. N. Y. Repts.,

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have been much discussed in England and fully settled that it does not. Since the statute of frauds, the surrender must be in writing. Coke on Littleton, 338, note 1; 20 Vin. Abr. 143, Surrender; L. Pl. 10.

§ 34. An Undelivered Deed Surreptitiously Placed upon Record. Where possession of a deed, which has never been delivered, has been surreptitiously obtained and placed upon record by the grantee, nothing short of an explicit ratification of the deed, or such an acquiescence, after a knowledge of the facts, as would raise a presumption of an express ratification, can give the deed vitality. In this respect it would stand on the same footing with a forged deed. If the party relied upon the statutes of limitations, with possession under the deed, nothing less than the period required by the statute for possession would do, and certainly no less possession under the deed, with the knowledge of the grantor, would raise the presumption of ratification; and we are far from expressing the opinion that that possession would have that effect.'

§ 35. Conveyance by Attorney in Fact.-In the case of a naked power of attorney to convey lands, not coupled with an interest, the law requires that every prerequisite to the exercise of that power should precede it. The party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under it is as much bound to prove the performance of the act as he would be bound to prove any matter of record on which the validity of the deed might depend.'

§ 36. Unrecorded Deed-Notice to Subsequent Purchasers. The law on the subject of notice to a subsequent purchaser seems to be well established. If he has knowledge of the unrecorded conveyance when he makes his purchase, he can not protect himself against that conveyance. He is as effectually bound by knowledge of the existence of the prior deed as he is by its registration. It is deemed an act of fraud in him to take a second deed under such circumstances. And whatever is sufficient to put him on inquiry as to the rights of others, is considered legal notice to him of those rights. He is chargeable with knowledge of such facts as might be ascertained by the exercise of ordinary diligence and understand

1 Caton, C. J., in Hadlock v. Had- (1889); Williams v. Peyton, 17 U. S. lock, 22 Ill. 388 (1859). (4 Wheat.) 77; Ransom v. Williams, Deputron v. Young, 134 U. S. 241 69 U. S. (2 Wall.) 313, 319.

ing. The actual possession of land is notice that the possessor has some interest therein. A party who purchases the same while that possession continues, takes the premises subject to that interest, whatever it may be. The possession is sufficient to put him on inquiry as to the title of the possessor; and it is his own fault if he does not ascertain the extent and character of that title. Where the purchaser, under an unregistered conveyance, is in the open and visible possession of the premises, it is deemed sufficient notice to protect him against a subsequent purchaser, and to charge the latter with knowledge of his title.'

§ 37. Infant not Estopped by Statements in Deed. The rule seems well settled that an infant having made statements in his deed of conveyance alienating his lands, in regard to his age, is not estopped from disaffirming the conveyance after he becomes of age, and recovering possession of the lands. An infant is not estopped by anything he has said or done while under age; to so apply the doctrine of estoppel would, we think, be repugnant to the principle upon which the law protects infants from civil liabilities in general.'

Applications of the rule.

On the trial of an action in ejectment there was introduced in evidence, in defense, a deed from the plaintiff to Emily C. Cummings, in which it is recited that Margaretha David (the plaintiff), unmarried, and of age," for $3,500 conveys and quit-claims to Emily C. Cummings the property in question, and a deed from Emily C. Cummings to Anna C. Haas, one of the defendants. The plaintiff then introduced evidence to prove that at the date of the deed to Emily C. Cummings the plaintiff was a minor, and under the age of eighteen years, and that after coming of age she filed her disaf. firmance of the deed, and a demand for possession of the premises, in the recorder's office of Cook county. There was recovery by the plaintiff, and the defendants appealed.

Sheldon, J., in offering the judgment said the question is as to the effect of the plaintiff's deed to Emily C. Cummings-whether or not plaintiff was

1 Treat, J., Rupert v. Mark, 15 Ill. 541 (1854); Tuttle v. Jackson, 6 Wend. 213; Colby v. Kenniston, 4 N. H. 262; Matthews v. Demerritt, 22 Maine, 312; Norcross v. Widgery, 2 Mass. 506; Landes v. Brant, 10 Howard, 348; Dyer v. Martin, 4 Scam. (Ill.) 146; Dixon v. Doe, 1 S. & M. 70; Boling v. Ewing, 9 Dana, 76; McCaskle v. Amarine, 12 Ala. 17.

Wieland v. Kobick, 110 Ill. 16 (1884).

Brown v. McCune, 5 Sandf. (N.Y.) 228; Merriam v. Cunningham, 11 Cush. (Mass.) 40; Conrad v. Lane, 26 Minn. 389; 4 N. W. Rep. 695; Burley v. Russell, 10 N. H. 184; Studwell v. Shapter, 54 N. Y. 249; Gilson v. Spear, 38 Vt. 311.

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estopped from disaffirming such deed made while she was a minor, she having stated therein that she was of age. The authorities seem abundantly to establish that a defendant is not estopped from setting up infancy as a defense to a contract, by his fraudulent representations that he was of full age. The conclusion, we think from the authorities, must follow, that the statement in the deed of plaintiff, that she was of full age, is not an estoppel to the disaffirmance of it. Judgment affirmed. Sheldon, J., in Wieland v. Kobick, 110 Ill. 16 (1884), citing Merriam v. Cunningham, 11 Cush. 40; Studwell v. Shapter, 54 N. Y. 249; Gilson v. Spear, 38 Vt. 311; Burley v. Russell, 10 N. H. 184; Conrad v. Lane, 26 Minn. 389; 4 N. W. Rep. 695; Brown v. McCune, 5 Sandf. 228.

§ 38. Ancient Deeds.-The rule is that an ancient deed may be admitted in evidence, without direct proof of its execution, if it appears to be of the age of at least thirty years, when it is found in proper custody, and either possession under it is shown, or some other corroborative evidence of its authenticity freeing it from all just grounds of suspicion.'

A deed from Craig to Michael Gratz, dated July 16, 1784, was offered in evidence, but was not proved by the subscribing witnesses, nor their absence accounted for. Its admission was alleged as error, but the court said that as the deed was more than thirty years old and was proved to have been in the possession of the lessors of the plaintiff, and actually asserted by them as the ground of their title in a prior chancery suit, it was in the language of the books, sufficiently accounted for; and on this ground, as well as because it was a part of the evidence in support of the decree in that suit, it was admissible without the regular proof of its execution. Barr v. Gratz, 17 U. S. (4 Wheat.) 220.

It was contended by the plaintiff in error that in no case could a paper be admitted in evidence as an ancient deed without proof of its execution, until it was first shown that thirty years' quiet and continued possession of the land had been held under the deed. But the court held, in substance, that an ancient deed may be introduced in evidence without proof of its execution, although possession may not have been held for thirty years in accordance therewith, if such account be given of the deed as may be reasonably expected under all the circumstances of the case, and as will afford the presumption that it is genuine. Caruthers v. Eldrige, 12 Gratt. (Va.) 670.

The court of appeals of Kentucky states the rule in relation to the proof of ancients deeds, thus: "The genuineness of such instruments may be shown by other facts as well as that of possession. And when proof of possession can not be had, it is within the very essence of the rule to admit the instrument, when no evidence justifying suspicion of its genuineness is shown, and it is found in the custody of those legally entitled to it. Harlan v. Howard, 79 Ky. 373; Viner Abr., Evidence, A. b. 5; Com. Dig., Evidence, B. 2; 1 Greenl. Ev. § 144, note 1; Starkie's Ev. 524; Phillipps' Ev., Cowin & Hill's notes, Part'n 197, P. 368, Eq. Sec., 3d Ed.; Doe v. Porcingham, 12 Eng.

'Applegate v. Lexington, etc., Co., 117 U. S. 255 (1885); Barr v. Gratz, 17 U. S. (4 Wheat.) 220.

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