Power to devise, etc.

Certain Estates to be advancements.

Computation of

t me of suspension.

Who may not take under Powers.

Married Women, their authority, etc.

Defective executions.

Ibid.

Powers to sell on
Mortgages.

Application of this chapter.

affected by fraud, both in law and equity, in the same manner as conveyances by owners or Trustees.

(2710.) SEC. 53. Lands embraced in a power to devise, shall pass by a will, purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear expressly, or by necessary implication.

(2711.) SEC. 54. Every estate or interest given by a parent to a descendant by virtue of a beneficial power, or of a power in trust with a right of selection, shall be deemed an advancement to such descendant, to the same extent, and under the same circumstances that a gift of real or personal estate would be deemed an advancement.

(2712.) SEC. 55. The period during which the absolue right of alienation may be suspended by any instrument in execution of a power, shall be computed from the time of the creation of the power, and not from the date of such instrument.

(2713.) SEC. 56. No estate or interest can be given or limited to any person, by an instrument in execution of a power, which such person would not have been capable of taking, under the instrument by which the power was granted.

(2714.) SEC. 57. When a married woman, entitled to an estate in fee, shall be authorized by a power to dispose of such estate during her marriage, she may, by virtue of such power, create any estate which she might create if unmarried.

(2715.) SEC. 58. When the execution of a power in trust shall be defective, in whole or in part, under the provisions. of this chapter, its proper execution may be decreed in equity, in favor of the persons designated as the objects of the

trust.

(2716.) SEC. 59. Purchasers for a valuable consideration, elaiming under a defective execution of any power, shall be entitled to the same relief in equity, as similar purchasers claiming under a defective conveyance from an actual owner. (2717.) SEC. 60. When a power to sell lands shall be given to the grantee, in any mortgage or other conveyance intended to secure the payment of money, the power shall be deemed a part of the security, and shall vest in, and may be executed by any person, who, by assignment or otherwise, shall become entitled to the money so secured to be paid.

(2718.) SEC. 61. The provisions of this chapter shall not extend to a simple power of Attorney, to convey lands in the name, and for the benefit of the owner.

(2719.) SEC. 62. The term "grantor of a power," is used in Terms "grantor this chapter as designating the person by whom a power is "grantee of a created, whether by grant or devise; and the term "grantee of a power," is used as designating the person in whom a power is vested, whether by grant, devise, or reservation.

BY DEED, AND THE PROOF AND RECORDING

OF CONVEYANCES, AND THE CANCELING OF MORTGAGES.

Conveyance of

Land may be made by Deed. 1840, p. 166.

15 Ill. Rep., 236.

Chapter Sixty-Five of the Revised Statutes of 1846.

(2720.) SECTION 1. Conveyances of lands, or of any estate or interest therein, may be made by deed, signed and sealed 2 Mich. Rep., 390. by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or Attorney, and acknowledged or proved and recorded as directed in this chapter, without any other act or ceremony whatever.

Conveyance by husband and

wife.

3 Pick, 521.

(2721.) SEC. 2. A husband and wife may, by their joint deed, 7 Mass., 19, 291. convey the real estate of the wife, in like manner as she might do by her separate deed, if she were unmarried; but the wife shall not be bound by any covenant contained in such joint deed.

4 Mason, 45.

Form of Deed. 8 Pick., 143.

Effect of certain
Conveyances.

Covenants in Con

veyances.

(2722.) SEC. 3. A deed of quit claim and release, of the form in common use, shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale.

(2723.) SEC. 4. A conveyance made by a tenant for life or years, purporting to grant a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantee all the estate which such tenant could lawfully convey.

(2724.) SEC. 5. No covenant shall be implied in any convey2 Barb. Ch. R., ance of real estate, whether such conveyance contain special

559.

Covenants in
Mortgages.

Conveyance of

Lands adversely

covenants or not.

(2725.) SEC. 6. No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured; and where there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.

(2726.) SEC. 7. No grant or conveyance of lands, or interest 4 Scammon, 67. therein, shall be void for the reason that at the time of the execution thereof such lands shall be in the actual possession of another claiming adversely.

Execution and

acknowledgmen t

(2727.) SEC. 8. Deeds executed within this State, of lands, of Deed. or any interest in lands therein, shall be executed in the presence of two witnesses, who shall subscribe their names to the

Wal. Ch. R., 260.

3 Mich. Rep. 581. same as such, and the persons executing such deeds may 12 Metcalf, 157. acknowledge the execution thereof before any Judge or Commissioner of a Court of Record, or before any Notary Public,

1840, p. 166. 402

Justice of the Peace, or Master in Chancery within the State, 1839, p. 219. and the officer taking such acknowledgment shall endorse 11 i. Rep., thereon a certificate of the acknowledgment thereof, and the true date of making the same, under his hand. (a)

in other States.

(2728.) SEC. 9. If any such deed shall be executed in any Deeds executed other State, Territory or district of the United States, such deed may be executed according to the laws of such State, Territory or district, and the execution thereof may be acknowledged before any Judge of a Court of Record, Notary Public, Justice of the Peace, Master in Chancery, or other officer authorized by the laws of such State, Territory or 1810, p. 166. district, to take the acknowledgment of deeds therein, or before any Commissioner appointed by the Governor of this State for such purpose.

4 McLean, 230.

ment authenti

14 Illinois, 254.

(2729.) SEC. 10. In the cases provided for in the last pre- How acknowledg ceding section, unless the acknowledgment be taken before a cated. Commissioner appointed by the Governor of this State for that purpose, such deed shall have attached thereto a certificate of the clerk, or other proper certifying officer of a Court of Record of the county or district within which such acknowledgment was taken, under the seal of his office, that the person whose name is subscribed to the certificate of acknowledgment was, at the date thereof, such officer as he is 1840, p. 165. therein represented to be, that he believes the signature of 1843, p. 6. such person subscribed thereto to be genuine, and that the deed is executed and acknowledged according to the laws of such State, Territory or district.

in foreign counledged.

(2730.) Sec. 11. If such deed be executed in any foreign Deeds executed country, it may be executed according to the laws of such try, how acknow country, and the execution thereof may be acknowledged before any Notary Public therein, or before any Minister Plenipotentiary, Minister Extraordinary, Minister Resident, Charge des Affaires, Commissioner or Consul of the United States, appointed to reside therein; which acknowledgment shall be certified thereon by the officer taking the same under his hand, and if taken before a Notary Public, his seal of office shall be affixed to such certificate.

(2731.) SEC. 12. When any married woman residing in this Acknowledgment State shall join with her husband in a deed of conveyance of man residing in real estate, situate within this State, the acknowledgment of Wal. Ch. R., 394.

by Married Wothis State.

(a) Other officers authorized to take acknowledgments: Comptroller of Detroit. Laws of 1857, p. 91, Sec. 21; Mayor of Flint, Ib., p. 36, Sec. 3.

1 Mich. Rep, 80. the wife shall be taken separately and apart from her husband;

11 III. Rep., 123.

2 Indiana, 385.

2 Barb. Ch., 232. and she shall acknowledge that she executed such deed freely, 3 McLean, 245. and without any fear or compulsion from any one.

Married Woman

this State.

Conveyance by (2732.) SEC. 13. When any married woman, not residing in residing out of this State, shall join with her husband in any conveyance of real estate situated within this State, the conveyance shall have the same effect as if she were sole, and the acknowledgment or proof of the execution of such conveyance by her, may be the same as if she were sole.

Proof of execution, etc.

8 Metcalf, 355.

In case of death of subscribing witnesses.

refusal of grantor

State, to acknowledge Deed.

(2733.) SEC. 14. When any grantor shall die, or depart from, or reside out of this State, not having acknowledged his deed, the due execution thereof may be proved by any competent subscribing witness thereto, before any Court of Record in this State.

(2734.) SEC. 15. If all the subscribing witnesses to such deed shall also be dead, or out of this State, the same may be proved before any Court of Record in this State, by proving the handwriting of the grantor, and of any subscribing witness thereto.

Proceedings on (2735.) SEC. 16. If any grantor residing in this State shall residing in this refuse to acknowledge his deed, the grantee of any person claiming under him may apply to any Justice of the Peace in the county where the land lies, or where the grantor, or any subscribing witness to the deed resides, who shall thereupon issue a summons to the grantor to appear at a certain time and place before the said Justice, to hear the testimony of the 1 Johnson, 498. subscribing witnesses to the deed; and the said summons, with a copy of the deed annexed, shall be served at least seven days before the time therein assigned for proving the deed.

Ibid.

When execution

before Court of

of death, etc.

(2736.) SEC. 17. At the time mentioned in such summons, or at any time to which the hearing may be adjourned, the duo execution of the deed may be proved by the testimony of one or more of the subscribing witnesses; and if proved to the satisfaction of the Justice, he shall certify the same thereon, and in such certificate he shall note the presence or absence of the grantor, as the fact may be.

may be proved (2737.) SEC. 18. If any grantor residing in this State shall Record, in case refuse to acknowledge his deed, and the subscribing witnesses thereto shall all be dead, or out of the State, it may be proved before any Court of Record in this State, by proving the handwriting of the grantor, or of any subscribing witness; the said Court first summoning the grantor for the purpose, in the manner before provided in this chapter.