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XIV. THE CONSTITUTION OF OHIO.

On the twenty-ninth of November, in the year one thousand eight hundred and two, the Constitution of Ohio was adopted in convention at Chilicothe. It is silent on the subject of land titles, and leaves the regulation of tenures to the legislature. [See Appendix.]

XV. LAND TITLES GENERALLY IN OHIO.

By the treaty which terminated the War of the Revolution with Great Britain, and the cessions of Massachusetts, Connecticut, New-York, and Virginia, the United States Government acquired a valid estate in fee, to all the land embraced within the territory northwest of the Ohio, except the Connecticut and Virginia reservations, which remained the property of those States respectively.

Grants, either by the General or the State Governments, of land owned by them respectively, convey a valid title to States, companies or individuals, competent to receive patents therefor.*

*A patent alone passes land from the United States to the grantee. [13 Peters, 498]

A land patent from the United States is conclusive in an action at common law. [Id., 436.]

The seizin of lands belonging to the Indian tribes, is in the Sovereign, and the Indians are mere occupants. A purchaser from them can only acquire the Indian title, and they may resume it, and make a different disposition of it. [Paine, 457.] The title to land under grants in 1773 and 1775, by the Illinois and Piankeshaw nations, cannot be recognized in the courts of the United States. [8 Wheaton, 543.] The possession of land by Indians, does not affect the validity of patents granted by the State. The right of a State to grant the land of Indians, without their consent, is a political question. The patent, however, is not affected by the possession of the Indians. [3 John, 375.]

A sale of lands. surveyed, but not patented, in the Virginia Military District, passes the whole interest of the holder to the purchaser. [7 Ham., 156.]

In Ohio, the owners of land situated upon the banks of navigable streams, running through the State, are owners of the beds of the streams to the middle, subject only to the easement of navigation. [3 Ham., 495.]

A patent issued on a Virginia Military land warrant, gives a title which, though examinable, has no presumption against it. [7 Wheaton, 122.]

The early grants of land to the Ohio Company of Associates, to John Cleves Simmes, to the United Brethren, to the Canadian refugees, and to the French settlers, as well as to others, carried to the purchasers an absolute fee of the tracts or parcels granted.

The grants to the State of Ohio, for certain specified objects, vested the State with a valid title.

In respect to the different kinds of estates in land, the regulations in Ohio are substantially the same as in New-York. [Ante 79.] All feudal tenures are abolished, save rents and services certain, and subject to the liability to escheat, the entire and absolute property vests in the owners according to the nature of their respective estates.

XVI. EXECUTION OF DEEDS AND MORTGAGES IN OHIO.

The Revised Statutes of Ohio provide that all conveyances of land shall be by deed, duly executed and acknowledged, or proven by the grantor or his lawful agent, and that land cannot otherwise be conveyed, affected, or incumbered. They prescribe no form for deeds; wherefore any written or printed document which sets forth with precision the names of the parties, the land intended to be conveyed, and the terms and conditions of the grant, may be accredited as a deed, if it be legible and evince an intention and purpose to convey.

Every man above the age of twenty-one years, and every unmarried woman above the age of eighteen years, competent to hold lands, have the right to convey. The deed, to be properly executed, must be prepared on paper, parchment, or some similar substance capable of being delivered to the grantee.

It must be signed. One section of the statute requires "every deed, mortgage, or other instrument of writing, by which any land, tenement or hereditament shall be conveyed or otherwise affected or incumbered in law," to be signed by the grantor, grantors, or makers, yet by another, "deeds and mortgages may be executed by an attorney of

the owners, where such attorney has a written power executed by the owners or owner of the estate, and attested and acknowledged with all the formalities required to a deed." The signing consists in writing the name of the grantor or grantors, as the case may be, at the bottom of the instrument, or in the event of inability to write the name, in the making of such a mark thereto as the grantor is accustomed to subscribe as his or her sign manual.

It must be sealed. The statute, above in part cited, also provides that instruments in writing affecting the title to land shall be sealed by the grantor. The practice and the manner of sealing with wax, wafer, or other adhesive and impressive substances, were treated of at length in a previous chapter. [Ante 85.] It is believed that the common law rule ought not to be relaxed; that the solemnity of a deed is measurably impaired by the allowance of substitutes for seals. A different view, however, has been taken, and the initials "L. S." enclosed in an indented circle, are recognized in Ohio as a valid sealing of a deed, [4 K. C., 453,] it being held that the letters L. S. sufficiently indicate the purpose of the grantor to seal his deed. Wax and wafers are generally used, and good conveyancers consider their use the preferable mode of sealing.

It must be witnessed. The statute requires the signing and sealing to be "in the presence of two witnesses, who shall attest such signing and sealing, and subscribe their names to such attestation." Any person of sufficient age and discretion to understand the nature of the act done, is competent to be a witness to a deed, but it is imprudent to make choice of persons as witnesses who are incompetent to be sworn in any court having jurisdiction of the matter.

It must be delivered. This is not in terms required, nevertheless, it is provided by statute that a delivery of a conveyance, duly executed, shall be valid and effectual to pass the title of the grantor or grantors in and to the land in

question; leaving in full force the requirements of the common law concerning the delivery. [Ante 85.]

When conveyances are executed by some person other than the grantor or grantors, but in his or their behalf, such person must have been thereunto authorized by a "written power signed, sealed, attested and acknowledged by the owner or owners of the estate; and when the estate of a femme covert is proposed to be conveyed by attorney, or her right of dower in any lands, tenements, or hereditaments relinquished, she must have joined her husband in the execution of the power, and have acknowledged the same separately and apart from him, according to the provisions concerning conveyances by husband and wife."

Any conveyance, however, made under a power of attorney from a husband and wife, must contain the name of the wife, "and will, if thus executed, divest her of her estate in the lands, tenements and hereditaments so conveyed, or her right of dower therein, as fully as if such conveyance were executed by her in person; provided, that at any time previous to the sale and conveyance of any lands, tenements or hereditaments, so authorized to be sold and conveyed, the wife shall have not revoked such power of attorney." The recording of a power of attorney is another pre-requisite to a conveyance by the attorney. The statute on this subject is imperative and therefore establishes a rule which is inflexible. This must be done in all cases before the execution, by an attorney, of a deed or mortgage.

In respect to foreign conveyances or incumbrances upon lands in Ohio, it is provided that they shall be executed either according to the laws of the State where they are made, or according to the laws of Ohio. Either will answer the law, and when thus executed, a deed or mortgage is held to be as valid as if executed within this State, in conformity with the foregoing provisions. [R. S. of Ohio, 360.]

It may be well to notice, in this connection, that married women in Ohio may have an interest in land beyond their dower right, which, by an act passed February 28, 1846, cannot be aliened by the husband. This act provides that the interest of any married man in the real estate of his wife, belonging to her at the time of their intermarriage, or which may come to her by devise, gift or inheritance during coverture, or which may have been purchased with her sole and separate money, or other property, and during her coverture shall have been deeded to her, or to any trustee in trust for her, shall not be liable to be taken by any process of law or chancery for the payment of his debts during the life of the wife, or the life or lives of the heir or heirs of her body." [Id., Sec. 1.] All conveyances and incumbrances of the husband's interest in the real estate of the wife, in the first section mentioned, shall be void and of no effect during the life of the wife, and during the life or lives of the heir or heirs of her body, unless an instrument of such conveyance or incumbrance shall have been executed, attested and acknowledged according to the laws of this State, for the conveyance or incumbrance of the estate of the wife in lands, tenements and hereditaments, situate within this State.* [Id., Sec. 2.]

A deed or grant purporting to convey an estate in severalty where the grantor had only a joint tenancy, or tenancy in common, is not void but conveys all the grantor's interest in the premises. [2 Ham., 110.]

In Ohio, it is indispensable to the validity of a conveyance, that the grantee be capable of receiving it. He must be a person in being at the time of its execution. 4 Ham., 157.]

A valid title to land can be acquired only through a written conveyance. A parol exchange does not transfer title, and did not before the statute of frauds, even though the parties had taken actual possession. [1 Ham, 243.]

A title to land cannot be conveyed by an assignment endorsed upon a deed. [2 Ham., 221.]

Possession of land for twenty years raises the presumption of a deed, but posses. sion alone is not sufficient. [1 Ham., 330.]

A deed made for a gambling consideration is void, and the land is forfeited to the heirs of the grantor, subject to his debts. [1 Ham., 395.]

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