VII. THE EXECUTION OF DEEDS AND MORTGAGES IN ILLINOIS.

The Revised Statutes of Illinois provide that all deeds and instruments of writing, for the conveyance or incumbrance of real estate, or any interest therein, shall be signed and sealed by the party or parties executing the same, in proper person, or by an attorney or lawful agent, thereunto duly authorized. [R. S., 105, Sec. 16, 24.]

Conveyances may be written or printed, or partly written and partly printed; and although no prescription exists as to their form, they must nevertheless set forth the names and residence of the parties, the land intended to be conveyed and the terms and conditions of the grant. They are also required to be legible, perspicuous, and to evince the purpose of the grantor or grantors therein to convey to the grantee or grantees the premises described. They must be upon paper, parchment, or some other similar material, susceptible of delivery and record. [Breese's Appendix.]

They must be signed. The statutes provide "that they shall be subscribed by the party or parties thereto, in proper person," [Id., Sec. 16,] yet, as "letters of attorney, or agency, authorizing the granting, selling, conveying, assuring, releasing or transferring, and for the acknowledging of grants, sales, leases and assurances," are recognized as valid instruments, it is presumed that the two provisions, when taken -together, fully authorize the subscribing of a deed by an attorney of the grantor, and constitute him in such case, a party,

The mode in which titles shall inure, or pass, must be exclusively the subject of the laws of the country where the estate lies. [7 Cranch, 112.]

The title granted by the State, or by the United States, vests the grantee with a title, notwithstanding the land shall be at the time in the possession of the native proprietors. [8 Wheaton, 543.]

The Illinois and Piankeshaw Indian grants made prior to 1775 cannot be recog nized by the courts of the United States. [Id., 546.]

Lands in Illinois that were confirmed to the settlers by the Governor of the northwestern territory, were released from any further claims, on the part of the United States. [Breese, 236.]

within the meaning of the statute. But no agent or attorney can legally subscribe a deed for his principal, unless he shall have been thereunto authorized by an instrument in writing, executed and acknowledged by his principal, with all the formalities required in the execution of a deed.

They must be attested. At least one witness to their execution is necessary, when they are not acknowledged previous to their delivery. The language of the act upon this subject is ambiguous concerning the necessity of witnesses in any other case, yet as the term "witnesses" is often used in the revision of 1845, in connection with the subject of conveyances, it is suggested to non-residents that it were well to have one subscribing witness to all deeds, at least, until such statute receive a judicial construction by the courts.

They must be sealed. An instrument in writing is not a deed according to the legal signification of that term unless the same shall be sealed. The statute, however, admits a scrawl, for a substitute. "Any instrument of writing to which the maker shall affix a scrawl by way of a seal, shall be of the same effect and obligation to all intents, as if the same were sealed." [Id., 421, Sec. 56.] The mode usually adopted by grantors is to flourish an indented circle with a pen at the right of the signature, and to insert therein the initials L. S., as an indication that the flourish was intended as a seal; the statute being that the scrawl, to be valid, must be affixed "by way of a seal."

Deeds take effect only from the time of their delivery; [Breese, 278,] and as to creditors and subsequent purchasers, only from the time of the filing thereof for record.* [R. S., 108, Sec. 21.]

All persons of full age, except femmes covert, idiots and lunatics, are entitled to convey real estate, subject to the pro

Delivery of a deed is necessary to the transfer of the title of the grantor thereby. Breese, 278.] Deeds cannot take effect until they are delivered to the grantee, or to some one acting in his behalf. [2 Ham., 268.]

visions of the Statute. A femme covert may relinquish her right of dower in any of the real estate of her husband, by joining him in a deed of conveyance and acknowledging the same as mentioned in the succeeding article; but no covenant or warranty contained in any such deed or conveyance, can in any manner bind or affect such woman or her heirs, further than to convey from her and her heirs effectually, "her right and interest expressed to be granted or conveyed in such deed or conveyance. [Id., 106, Sec. 17.]

Deeds pass the incidents as well as the principal, and merge all prior and cotemporaneous negotiations and agreements in parol concerning the premises conveyed. If they contain the words "grant" "bargain," "sell," they are adjudged to express a covenant to the grantor and his heirs and representatives, that the grantor was seized of an indefeasible estate, in fee simple, free from incumbrances done or suffered by the grantor, except the rents and devises that may be reserved; and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed." [Id., 105, Sec. 11.]

Every deed conveying real estate, which by anything therein contained shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage." [Id., Sec. 12.]

VIII. THE PROOF AND ACKNOWLEDGMENT OF DEEDS AND MORTGAGES IN ILLINOIS.

All deeds, mortgages and other instruments for the conveyance of real estate in this State, or any interest therein, whereby the rights of any person may be affected in law or equity, are required to be acknowledged or proved before one of the following officers, viz: When acknowledged or proven in Illinois, before any Judge, Justice, or Clerk of any Court of Record therein having a seal, or before any Mayor of a

city, Notary Public, or Commissioner authorized to take the acknowledgment of deeds, having a seal, or any Justice of the Peace. When acknowledged or proved without the State of Illinois, and within the United States or their territories, or the District of Columbia; before an officer commissioned for the purpose by the Governor of Illinois, in conformity with the laws of such State, Territory or District, provided, that any Clerk of a Court of Record within such State, Territory or District, shall, under his hand and the seal of such court, certify that such deed or instrument is executed and acknowledged, or proved in conformity with the laws of such State, Territory or District. When acknowledged or proven without the United States, before any court of any Republic, State, Kingdom, or Empire, having a seal, or any Mayor or chief officer of any city or town having a seal, or before any officer authorized by the laws of such foreign country, to take acknowledgments of conveyances of real estate, if he have a seal-such deed to be attested by the official seal of such court or officer; and in case. such acknowledgment is taken other than before a Court of Record, or Mayor, or chief officer of a town having a seal, proof that the officer taking such acknowledgment was duly authorized by the laws of his country to do so, shall accompany the certificate of such acknowledgment." [R. S., Ill., 105, Sec. 16.]

Superadded to these provisions are others concerning the proof or acknowledgment of deeds by married women above the age of eighteen years. That their execution of deeds and mortgages may be in all cases voluntary and free, it is required that in addition to the foregoing requirements, "such wife shall appear before some Judge or other officer, authorized to take acknowledgments, to whom she is known, or proved by a creditable witness to be the person who executed such deed or conveyance, and such Judge shall make her acquainted with, and explain to her the contents of such deed or con,

260

veyance, and examine her separate and apart from her husband, whether she executed the same voluntarily, freely, and without compulsion of her said husband; and if such woman shall, upon such examination, acknowledge such deed and conveyance to be her act and deed-that she executed the same voluntarily and freely without compulsion of her husband, and does not wish to retract, the said Judge or other officer shall make a certificate endorsed on, or annexed to such deed or conveyance, stating that such woman was personally known to the said Judge or other officer, or proved by a witness (naming him) to be the person who subscribed such deed or conveyance, and setting forth the examination and acknowledgment aforesaid, and that the contents were made known to her; and such deed (being acknowledged or proved according to law as to the husband) shall be as effectual in law as if executed while sole and unmarried." [Id., Sec. 17.]

It will be observed that every requirement concerning the proof and acknowledgment calls for certain acts on the part of both the maker of a deed and the acknowledging officer. Those acts, and each and every of them, are essential. Having been done, they are facts, not conclusions, and must be detailed at length in the certificate of such officer. Herein, much difficulty often occurs; too much care, therefore, cannot be taken by acknowledging officers.

"Any conveyance or assignment of certificates of the purchase of land sold for taxes by the Auditor of Public Accounts, may be acknowledged before said Auditor, and such acknowledgment shall be deemed good and valid." [Id., Sec. 19.] But whomsoever assumes the duty of taking the acknowledgment of deeds, be it Auditor, Judge, or other officer, is required to know the person or persons appearing before him to make such acknowledgment, or by a creditable witness to be examined by himself, to receive proof of his or their identity, and that he, she or they are in very fact the person