TRANSFERS AND CLOSINGS OF TITLE AND TITLE INSURANCE 1. Growth of modern right of transferring titles. —Under the feudal system of the Middle Ages, land tenure was a personal relation between the tenant and his overlord, founded upon the necessity of material defense, and carrying with it the obligation on the part of the lord of protecting his tenant and on the part of the tenant of fealty and aid to his lord. The tenant was unable to sever this relationship unless he put in his place some other person selected by and acceptable to his overlord. When he relinquished his holdings he had no voice as to who should take his place. Under such a system commercial transactions with the land were practically impossible. A method of sub-infeudation arose, however, whereby the ten ant put in another under him and the under tenant put in tenants under him and so on indefinitely. The evils of this system and the necessity for the freedom of the land led to the enactment of a statute allowing a tenant to sell his holdings and substitute another tenant in his place.
2. Methods of transferring the transfer of the title to land was effected by trans ferring actual possession of the land. Sometimes there was a symbolic act performed, such as breaking, a turf from the land and handing it over with words of delivery, such as "I put you in p6ssession of this land." Such a method was crude, often resting upon memory for the validity of the title since no per manent record of the transfer was made. If a man was in possession and he and his ancestors had been in possession as long as anyone could remember, it was necessary to assume that his title was good. This is the foundation of our present title by adverse pos session. The system, however, led to many disputes. Men took possession wrongfully, and held possession by force. As the number of transfers increased it was found necessary to enact a statute requiring a written record to be made of every transfer. This was known as the Statute of Frauds. The result of this enactment was that all transactions had to be in writing and later by a deed, the instrument we now use in transferring titles to land.
3. Instruments used in transferring fers of land may be absolute, or they may be made as security for an obligation. The instrument usually used to transfer the absolute title to land (or any estate therein) is called a deed or transfer; the instru ment used to make the transfer upon security is called a mortgage, or in some cases a deed of trust. Both the deed and mortgage have been considered under separate chapters in this volume of the Text.
Transfers of title may occur by conveyance and also by operation of law. Transfer by operation of law takes place when a decedent leaves no will. The law then steps in and says who shall get the title. Commercially, we shall consider that all transfers by death, whether they are made by will or not, are trans fers by operation of law, while all others are transfers by conveyance.
In the ordinary language of the real estate busi ness, the word "deed" means an instrument used to effect a transfer of the title of real property. Legally, the term includes any formal instrument given under seal. While in New York, and in some other states, it is not necessary that a conveyance of land be under seal, the instrument is nevertheless called a deed. In some jurisdictions under Land Titles Acts it is called a transfer and is not under seal.
The law requires that a deed of land shall be in writing and subscribed. In some states it must be sealed and witnessed. If it is understandable and the subject matter capable of identification, and if it be properly executed, it will transfer the title.
4. When title passes.—Title passes only upon delivery of the instrument. Surrender of the in strument to the transferee must be a voluntary act on the part of the vendor. Possession of the instru ment obtained by fraud or theft, does not give the transferee the title. From the moment of the deliv ery all rights of the transferer cease and all rights carried by the instrument to the transferee begin.