Page:The New International Encyclopædia 1st ed. v. 05.djvu/418

* CONVEYANCE. 358 CONVEYANCING. stranger. It is tnie the fee thus conveyed was a defeasible one; but it placed the landlord — reversioner or remainderman — in the situation of a disseizee, and forced him into the disad- vantageous position of a plaintiff seeking to re- cover his land from one ^^•ho claimed it under a notorious public conveyance. This was called a ■tortious,' or wrongful, conveyance, and the term tortious was thus applied to all the earlier modes of alienation which possessed this curi- ous power. Conveyances by deed, on the other hand, have never been attended with these con- seguences, have never possessed a tortious opera- tion, and have, therefore, been distinguished as 'innocent' conveyances. Whatever they may pur- port to do, they pass only such interest as the grantor can lawfully convey. All modes of con- veyance are now of this character, the older conve'anccs and the tortious effect of them hav- ing been done away with, both in England and in the UniLed State's, by statute. A curious sur- vival of this obsolete 'and discredited doctrine appears in the modern American doctrine of con- veyance by estoppel (q.v.). Notwithstanding the improvements which have been effected in recent years in the substitution of secret for notorious conveyances and the simplification of the former, the conveyance of land continues to be a much more cumbrous, uncertain, and expensive opera- tion than the transfer of personal property. Many suggestions have been made looking to the elimination of these objections and the assimila- tion of the two species of property in this re- spect, and in several of the United States and in some of the British colonies different systems for achieving these objects have been adopted and are now on trial. These will be explained under the titles Land Transfer: Registration OF Title. See the several titles of the various modes of transfer referred to in this article, and in addition. Alienation; Con^-eyancing ; Title; Warranty ; and the authorities there referred to. CONVEYANCING. The act or art of pre- paring the deeds or instruments used for the transference of property from one person to another. As such writings not only form the evidence of the right of the person pos- sessing or claiming possession of property, but do in themselves constitute the title there- to, it is of the greatest importance that the conveyancer employed to prepare them should be possessed of a competent knowledge of the law and have the skill required to frame them in such a form as clearly to express and attain the object intended. In the early stages of so- ciety there is no call for the profession of a conveyancer; property is held in right of occu- pancy, without any written title, and even lands are convej'ed from one to anotlier without writing, the new owner being usually put in possession in presence of witnesses called for the purpose, by some symbolical form, such as the delivery of earth and twigs. In the early history of the Jews, the symboli- cal mode of transferring title prevailed (Ruth iv. 7 ). But they subseqiiently developed a much more artistic system of conveyancing, making use of all the snfegu.ards that are used in modern times — viz. writing, witnesses, subscribing, seal- ing, and recording the documents {Jer. xxxii. 9-12). In Rome, as elsewhere, early trans- fers of property, whether land or goods, were of a ceremonial character. Later, a distinction was made between property capable of transfer by a simpler process (res nee inancipi) and such as could be eU'ectually transferred only by the older and more formal method (7-es maneipi}. It was not until Justinian's reign that the distinction between the two classes of property was abol- ished and a simple form of conveyance made sufficient for both. Strictly speaking, the term conveyancing has no application to the various modes by which the title to chattels is transferred. These proc- esses have almost always been of the simplest character, and do not even to-day usually call for expert knowledge or for elaborate writings to render them safe and effective. It is to the feudal system of land tenures, and to the com- plexities and refinements which it introduced into the simple notion of ownership, that we owe the ditllculties and dangers which attend the transfer of title to land at the present time. As the feudal system nowhere exercised a stronger and more persistent influence than in England, so there is no coimtry in Europe in which the con- veyance of lands is as complicated and precarious an undertaking as it is in that country and in most of the United States. Tlie number and variety of estates and other interests which may exist at one and the same time in the same parcel of land, and the diversitj- of circum- stances under which these varied interests may arise, may be transferred and extinguished, have combined to make conveyancing one of the most technical and difficult branches of the work of the legal profession. In England it has resulted in the development of a special branch of lawyers who are known as conveyancers. In the United States the process of specialization has not gone so far as that, the business of conveyancing being still for the most jjart in the hands of the profes- sion at large. The )irocess through which the conveyancer must go may be briefly described. He has first to make a careful search of the publig records and from these to prepare an ab- stract (q.v.) of the title to the Land in question. He must then examine with the greatest care all of the documents consti- tuting the chain of title, in order to de- termine their validity and sufficiency. He will then be prejiared to draw up the appropriate document to effect the transfer desired — which may be a deed of trust, a marriage settlement, a grant of the lands, or a last will and testament. In England, where no system of general regis- tration of land titles is in force, the conveyancer has recourse to the original documents of title, which are carefully preserved and transferred with the land. The complexity, uncertainty, and expense of the old method of conveyancing have long called for radical reform. In England, in the United States, and in Canada, land transfer reform associations exist, and are vigorously pushing for legislation in this direction: something has already been achieved, but much remains to be done. Few even of professional conveyancers would deny the truth of the statement made by the Duke of 'Marlborough in the Fortinrihth/ Pevieip, that heretofore "in every country the theory of the land laws has depended on the fact that iand was never intended to be dealt with by- free commerce and barter, and its sale and ex-