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shall appear to have been intended only as a security in the nature of a morte gage, though it be an absolute conveyance in terms, shall be considered as a mortgage. (R. S., p. 105, Sec. 12).
Every estate in lands which shall be granted, conveyed, or devised to one, although words heretofore necessary to tranfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed, or devised by construction or operation of law. (R. S., p. 105. Sec. 13.)
When an estate hath been or shall be by any conveyance limited in remainder to the son or daughter, or to the use of the son or daughter, of any person, to be begotten, such son or daughter, born after the decease of his or her father, shall take the estate in the same manner as if he or she had been born in the lifetime of the father, although no estate shall have been conveyed to support the contingent remainder after his death. (R. S., p. 105, Sec. 14.)
All aliens residing in this State may take by deed, will, or otherwise, lands and tenements, and any interest therein, and alienate, sell, assign, and transmit the same to their heirs or any other persons, whether such heirs or other persons be citizens of the United States or not, in the same manner as natural born citizens of the United States or of this State might do; and upon the decease of any alien having title to or interest in any lands or tenements, such lands and tenements shall pass and descend in the same manner as if such alien were a citizen of the United States; but all such persons shall have the same rights and remedies, and in all things be placed on the same footing, as natural born citizens and actual residents of the United States. (R. S., p. 47, Sec. 1.)
EXECUTION OF DEEDS AND MORTGAGES.
The execution of Deeds and Mortgages is regulated by the following provisions of the Revised Statutes :
Conveyances may be written or printed, must set forth the residence and the name of the parties, the land, and the terms of the grant, must be legible, and upon some material susceptible of delivery and record.
They must be signed by the party or parties thereto. The provisions of the Statutes, however, permit the subscribing of a deed by an attorney of the grantor, if he should have been thereunto authorized by an instrument in writing, executed and acknowledged by his principals, with all the formalities required in the execution of a deed, and not otherwise.
They should be attested by two subscribing witnesses, unless acknowledged previous to their delivery.
They must be sealed. A scrawl of the pen may be used as a seal. It is usual to flourish an intended circle at the right of the signature, with the initials L. S. inserted in it.
FORM OF ACKNOWLEDGMENT.
one thousand eight hundred and
before me, John Hancock, a notary public, personally appeared John Walker and Mary his wife, to me known to be the real persons whose names are subscribed to the foregoing conveyance, and severally acknowledged that they executed the same, and the said Mary, on an examination separate and apart from her husband, having had the contents thereof fully made known to her by me, acknowledged that she executed the same, and relinquished her dower to the lands and tenements therein mentioned, voluntarily, freely, and without any compulsion of her said husband.
In witness whereof, I have hereunto set my hand and notarial seal of office, the day and year first above written. (Seal of office.)
John HANCOCK, Notary Public. All persons of full age, except femmes covert, idiots, and lunatics, are entitled to convey real estate, subject to the provisions of the Statute. When any married woman shall join her husband in the execution of a deed or mortgage of his real estate, and acknowledge the same as mentioned below, she may relinquish her right of dower. (R. S. 106, Sec. 17.)
Deeds containing the words “grant,” “bargain," "sell,” are adjudged to express a covenant to the grantee 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. (R. S. 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. (R. S., Sec. 12.)
PROVISIONS OF THE STATUTES CONCERNING PROOF AND ACKNOWLEDGMENT OF
DEEDS AND MORTGAGES, IN ILLINOIS. All instruments for the conveyance of real estate in this State, or any interest therein, affecting the rights of any person in law or equity, must 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. 105, Sec. 16.)
The officer taking the acknowledgment must certify, that the person offering to make such acknowledgment is personally known to him to be the real person whose name is subscribed to the deed as having executed the same, or that he was proved to be such by a credible witness (naming him). (R. S. 107, Sec. 20.)
In case of married women, in addition to the above, he shall acquaint her with the contents of the deed, and shall examine her separately and apart from her husband, whether she executed the same, and relinquished her dower to the lands and tenements therein mentioned, voluntarily, freely, and without compulsion of her said husband, and shall certify the same on or annexed to the deed. (R. S., Sec. 17.)
RECORDING OF DEEDS AND MORTGAGES, AND THE EFFECT THEREOF. All instruments relating to or affecting the title to real estate in this State, must be recorded in the county in which such real estate is situated. (R. S. 108, Sec. 22.)
All deeds, mortgages, and other instruments of writing, which are required to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record. (R. S., Sec. 23.)
All powers of attorney to convey lands are required to be recorded before any deed, executed under the authority contained in the power, goes upon record. (R. S., Sec. 24.)
The County Recorder, * biennially elected, commissioned by the Governor, and required to reside at the county seat, and to keep the books of record, is also required to give a receipt to the person bringing any deed or writing to be recorded, bearing date on the same day as the entry, and containing the abstract aforesaid, and for which entry and receipt he is entitled to no fees (R. S. 432, Sec. 7), but for the recording he is entitled to fifteen cents per hundred words, and twenty-five cents for a certificate, that the same has been recorded. (R. S. 248, Sec. 23.)
All conveyances acknowledged or proven in the State before any Judge, Justice of the Supreme or Circuit Court, or before any Court or officer, having a seal, and attested by such seal, are entitled to record without further attestation. But when acknowledged or proven before a Justice of the Peace residing within the State, the certificate of the Clerk of the County Commissioners' Court of the proper county, under his seal of office, that the person taking such proof or acknowledgment was a Justice of the Peace at the time of taking the same, must be produced to the Recorder; and when acknowledged or proved out of the State, before an officer other than Commissioner of this State residing there, the certificate of acknowledgment or proof must be accompanied with a certificate of a Clerk of a Court of Record within the State, Territory, or District, where the acknowledging officer resides, under the hand of such clerk and the seal of his Court, setting forth that the deed or instrument is executed, acknowledged, or proved, in conformity with the laws of such State, Territory, or District.
The conveyance, certificate of acknowledgment or proof, and the certificate of authentication, go upon record together, and for recording the whole thereof the Recorder is entitled to be paid.
Satisfaction of mortgages may be entered upon record, by the mortgagees, in the Recorder's office, and the record will thereby be effectually cancelled. If not so done, the cancellation may be effected by the mortgagees signing and sealing, in the presence of an attesting witness, and acknowledging in form, satisfaction thereof in writing; which instrument, on being produced to the Recorder, is sufficient authority for him to discharge the record. (R. S. 110, Sec. 37.)
WILLS OF REAL ESTATE.
The Statutes of Illinois provide, that every person aged twenty-one years, if a male, or eighteen years, if a female, or upwards, and not married, being of sound mind and memory, shall have power to devise all the estate, right,
* The Clerk of the Circuit Court is now Recorder of Deeds, and performs all the duties for merly required to be performed by the County Recorder, which office was abolished by act of the Legislature of 1849. (Laws of 1819, page 64, Sec. 12.)
title, and interest, in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, and to any lands, tenements, hereditaments, annuities, or rents charged upon or issuing out of them, or goods and chattels, or personal estate of every description whatsoever, by will or testament; all persons of the age of seventeen years, and of sound mind and memory (married women excepted), have power to dispose of their personal estate, by will or testament; and married women have power to dispose of their separate estate, both real and personal, by will or testament, in the same manner as other persons. (R. S. 536, Sec. 1.)
Wills, testaments, and codicils, by which any lands, tenements, hereditaments, annuities, rents, or goods and chattels are devised, shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, or by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses. If the testator be unable to write, his mark affixed will suffice for a signature, if accompanied with the declaration, that the same is his mark; if another write his name by his direction, the same must be done in his presence, otherwise such signature will be invalid. (R. S., Sec. 2.)
Wills may or may not contain a provision for the appointment of executors thereof. If they contain no appointment, the Court which admits them to probate has the power to supply the omission, by appointing an administrator, with the will annexed.
In no case, where any testator or testatrix shall, by his or her will, appoint his or her debtor to be his or her executor or executrix, shall such appointment operate as a release or extinguishment of any debt due from such executor or executrix to such testator or testatrix, unless the testator or testatrix shall, in such will, expressly declare his or her intention to devise or release such debt; nor even in that case, unless the estate of such testator or testatrix is sufficient to discharge the whole of his or her just debts, over and above the debt due from such executor or executrix. (R. S., Sec. 12.)
If, after making a last will and testament, a child or children shall be born to any testator or testatrix, and no provision be made in such will for such child or children, the will shall not, on that account, be revoked, but unless it shall appear by such will, that it was the intention of the testator or testatrix to disinherit such child or children, the devises and legacies by such will granted and given shall be abated in equal proportions, to raise a portion for such child or children, equal to that which such child or children would have been entitled to receive out of the estate of such testator or testatrix, if he or she had died intestate. (R. S., Sec. 13.)
Whenever a devisee or legatee in any last will and testament, being a child or grandchild of the testator or testatrix, shall die before such testator or testatrix, and no provision shall be made for such contingency, the issue of such devisee or legatee shall take the estate devised and bequeathed, and if there