An example of an uncertain description is "one of several houses owned by the party of the first part in the Borough of Brooklyn"; of an ambiguous descrip tion, "the most easterly of five lots fronting on Grand Street owned by the party of the first part"; of an inconsistent description, "lot 5 in Block 68 on Map B, described as" (metes and bounds description here inserted being of a lot in an entirely different block).
A deed that is not ambiguous on its face must be construed by itself. Regardless of the intentions of the parties, or any misunderstandings between them, outside parties can rely on the record and be secure against any claims the parties to the deed may make regarding it. There is a distinct line between latent ambiguity and patent ambiguity.
r. clause "with the appur tenances, etc." follows the description. Appur tenances are rights which go with the land, altho not mentioned in the description. They include such things as the right to maintain a wall on another man's land, or the right to cross other property to reach a highway. As a matter of legal construction appurtenances go with the land whether specifically conveyed or not.
8. have and to hold the above granted premises unto the said party of the second part his heirs and assigns forever." This part of the deed is known as the habendum. It should contain a clear expression of what is intended to be conveyed by the instrument. The language quoted is that used for the transfer of an estate in fee simple. If any other estate is to be granted, it should be stated clearly, not only in the granting clause but also in the habendum clause. A conveyance upon trust, for ex ample, would be worded: "To have and to hold the above granted premises unto the party of the second part, his successors and assigns forever, upon trust however to and for the following uses," after which the conditions of the trust are set forth.
9. Conveyance subject to erty is often conveyed subject to a mortgage which is a lien upon it. This may be covered by inserting after the habendum a clause such as, "Subject how ever the lien of a certain indenture of mortgage made for $5,000 and interest." Rights of tenants, easements, restrictions, etc., affecting the property should also be stated in the deed in a similar manner.
If restrictions are being imposed upon the property at the time of the conveyance, they are usually in serted in the deed by a clause such as the following: "The said party of the second part does hereby cov enant and agree to and with the said party of the first part as follows": (here -follows the exact wording of the restriction agreed upon.) 10. Testimony clause, signature and testimony clause just before the place for the signa ture is purely formal. The deed would be just as good without it. The signature of the party of the first part is usually the only one which appears on the deed. It may be the ordinary writing of the
name or it may be just a mark. Anything made by the grantor and intended for his signature is suf ficient.
In many states it is necessary that the deed be sealed. In the State of New York deeds by indi viduals need not have a seal. It is to the advantage of the grantee, however, that for two of the reasons noted in our chapter on contracts a seal be affixed; first, consideration is imported by the seal, second, the time of the statute of limitations is longer on a sealed instrument. In Canada deeds require seals, but transfers under Land Titles Acts do not.
11. Execution by deed made by a corporation is executed by the signature of one or more officers acting on its behalf, and by affixing the corporate seal. Frequently, the name of the corpora tion is written above the signature of the officers, but this is not necessary tho it is preferable. The seal, however, is a necessary part of the execution. It usually consists of an impression made upon the paper, and frequently takes the form of two concen tric circles, with the name of the corporation between them. There are a few corporations which have not adopted a corporate seal. When such a corporation executes a deed, the individual seals of the persons attesting the instrument are attached.
12. every deed whether by an individual or a corporation is acknowl edged or proved before officers authorized to take ac knowledgments. When this has been done the deed is entitled to be spread upon the public records. A corporate deed is usually proved by the officer who signed it. The form of individual acknowledgment appears at the bottom of the deed reproduced in this chapter. The form of certificate for a corporate ac knowledgment is as follows: 13. Bargain and sale deed with covenants.—The bargain and sale deed already described conveys just as good a title as any deed can convey. It is ap propriate under certain circumstances for the grantor, in addition to conveying the title, to make certain covenants with regard to it. The bargain and sale deed therefore often has added to it cov enants known as "covenants against grantor's acts." These covenants have to do only with what has hap pened to the title during the time the grantor has owned it. The grantor represents that "he has done or suffered nothing whereby the premises have been encumbered in any manner whatsoever:" This covenant is made usually by persons acting in a fiduciary capacity, sometimes by other individuals, and by some corporations. Fiduciaries cannot be ex pected to know what happened to the property in the past nor to make warranties as to the future, but they can covenant as to their own doings in relation to it.