Tlre neah!

Bliue Book of Califonin

ry
1-
e.

MELVILI,E P. FRASIER,EsQ,
Althor ol
"Reokl! La1r3 ol Califomia"
36 ThA Reuttlt BLueB,'ok ol C'Llilornin

Clonve)''ancing
111/lIEl,vILLn ['. FRASIDR

Joint Tetuot|! '7'ctttr'tttttin Comno -PnrtlLershi\ In-

l.ter!-Ptut1,/"ixt'r' U " l ) n " ' Io " l l l : f ' C n l " ' t ' n t.t
"
i,.),att. L"Li.tu,i' l;t .."'t .a" t R t:r'J -D"'L ;-
of D.ed-Itsttr ' tl)t1t "L)'past at
Caif o ii"-n"tt|n,t
Es(ror'.

;iiLilt jl, *i;

ily limited space of thjs chapter \\ c can do no4more
I lli ' " , : :r i ^if]iil:'",
"Si;i.;.;';,'rt
'*"r'"" i;
r*n::k*i* l.iln r:,";.
1 c 1 i p ; 6 " e r rb11 d - d , 1 1$ i l b p o u r '
l o i r , : "i n t h " h o r ' "' l ' r ; rs u ' h
""."5^1
.r, "^t'"1l'
"?[ii,i: \ t e s h i , l n / \ p $ i l s p ' a P l ' g r l i l l c . l o ' r l 1 1 l ' ' r f A s ' j r l' r '
"oor 'nsre' .r,'n\ '' p-i , s" "D t a ' t ' . a h a l ' s i r ' a r a r l d r t t r n n s j r " ' r u n ' f o I r I u r r u r s -
;";i;';-;i ;h;".i
'ri ,jr 'n" t"'i oJ inil rrlolc' v ;r t.2 :rorniaI
",1
ii," '.ia" r , 1 t . .u . ,t : ? , 1 t )t " , t s , l c ( i : t o " ; n - ' o r r r i l " d l ' r
"ifr"
l i " *t:iinii"tnt"n""
' to x'hich is madeelsewhcleil this vollrnle'
Fir'st as to the natlrle of eslatesin land iD Cali{omia: The owr-
ersl^in o l o r o p o r ' lo) ) , s i r r l " i r . d i \ i d u ao r ' ' o r ? o " D l i urrs k l r o $ na s
a soli oI s.t"r'a u$ .i isnrl HpIe no nur'lion n:- Io rlerLsr ilr'rses
The ownership o{ Dropedy br- scYer':rlpelsons is cither':
1. Of joirt intelests
2. Of paltnership interests
3. Of interests itt comnou.
i. Or interest of husba d a d $'ife Husband and
wlfe may "il1't"'i-itv
fre jonrt teiralts, tcnants in conmon, or o1l.rers of com-
munity plopeltt'.
JOlNT T]iNANCY

Now to clefine and distirguish these iDtelests A pioirlt intclest'

a s r t ' s u q u r l ] t a r n ' " d .i . a p p c u ' i a r s l a l Di n L h i : :
o, ioint t"||aj":
t t i s o r o o $ r ' " d L J s p ! ^ r a lp " r ' s o n s . : P ' , u a ll r o p l e l o l s \ r l 0 ) . a r r r r c
pxp'Fs'ly da llrrPdrn lne wlrr
crearpdbv a s,r'rlP $ ill o" ira'"fcl' w\crr
or.trans"ef l o b e a j o i , , , r F r s , , r ) . T h . e c . p ,l i 2 l s l o t h F . l p a r , o n o r
^n.iL:. rl'l'na:Thal t\e ifla bP'o vnvpdl': o"p irsl.r'rrrneni
"""1 "* _hrt th" rs Io llp hplclIn lornr
ar'd har illir." ba e\prpcsly declarpd "antp
i"."""". a gtrnr is tn \Fst rhP full rille irf:rch and
"'{It",".i"suct
'i *r^"i*i,,t'ur ," LoJv Lhai aa'\ grrrlFA (L' oa'ota.'dl^and
"ri"i "
as to succession owns dll Ihp Lillp ri ^ll 'j'n^s (o lhar tl p claarhoi one
a""" the tiUe at atl. It rests as under-the original
""*t""
i"".tio" in the ".t srrrviv-ors
"ft."ge This fiction of the law has no bea ng on
 The Rea,ltlJBkre Book of Caklornia 37

to tlle title; it only existsto give the right of succe3sionto

The theory of joint ownership is of no concem io a
mortgageeor creditor of any joint tenant. The shareof one
'nan(s-dling doesnot desc.ndto his he'rs rrorcan-.ilbe q illed
rn The last sur'vivor holds all as he did from the
of the estate. The joirt tenancy may be destroyed at any
"oroiuot""
the act o{ one of the joint tenants conveyinghis interest to
jen-
oger,or by deedby eiihe[ spouseto thc other if the joint
tr"t*""ri trusfa.i and wiie, or bv executronsale of the in-
of;ny tenant. Where three or more personshold as j-ointten-
"]
oneconveyshi" interestto a slranger. Lhestranger holds}js
as tenant in .omrron siih thp olhpm, whilp tha remaining
hotd their intelest dr 4?rzo?rgthemselves as joint tenants A
lion cannot be a joint tenant but may hold as a tenant in com-
A ioin( tFnancv .annot be cr'"a'ed bl deed or agrcPmentbe-
r the crantees. Il must be .reated by lhe grantor or dpvisor.
Lndsteld in ioinl tcnancyor in lanancy in commonare not sub-
homestead declaration,unlesslhe Iencnrsbe husbandand wjIe.
deedsto create a joint tenancy it should rua to the
tees";s joint tenants with ihe ght of survivoNhip." It cannot
to "th€it heirs," for the heils do r)ot take. Cut out the "to have
to hold" clause. It has no place in a California deed. Thele must
o &puglance in the deed.
MNANCY IN COMMON
An interest or tenancy in comr4on is one owned by several per_
lot in joint ownership or paltnership. The difierence beiween
tenancyand tenancy in commonis this: In a tenancy in com-
eachtenant owns a propo*ionate share of the prolerty which
to his heirs or devisees,his interest being sevetedfrom that
co-tenants. Under a joint tenancy, strictly speaking,there are
cha&s;as betweenthe tenants eachowns all. Th€re is but little
ctical difiercnce between these estates except as they efiect heirs
crcdito$ of a tenant after his death. Upon the death of a joint
snt his estate is terminated. While alive he can deal with the
by d€edor mortgageand his estateis subj€ct to execution.
PARTNEBSTIIP INTEREST
A DaltnershiDrnlerest is one owned by severnlpersonsfor part_
hip purposes. A pa*nership. as such or any asso'iajion of in-
rtls, as such.cannottake Iitle. Thospwho .omposea partner-
or aasociationmay own property, but as such partnershipsor
siciationsthey cannoi le STailteas,under such desiglation, as there
-theentity. In case of a conveyanceto a partnership to.vest
no legal
ia seveial part)'ters tll€ deed must rul1 to tlem in their indi-
;l names. Whether or not it be partnership property only con-
ns the DartDersor Ihe;r creditors. Onetaking a deed from all the
'Sunset Realty
tne$ i; in no qnse concemed. lf a deed run to
'; and it be a partncrshiP the deed is void.--ff,it be to "Suns€t
Co..' a co-parLnefshlp,composed of William Jones and
Brown, the deed is Sood for the tille vests in the individuals
3a The l?eult.! BILteRoot of CQ,lift,t)titL

ained and a deed out lr.onl Lhem is good. Purchasem dealing with
DartD(rship pl'oper'l]- nra:'trcat the grantols as telants in comnlon.

PROPENTY RIGIITS OF HUSBANTJ AND \\'IITE

Now as to prop€rt) figlrts of hrsband and wife: .{ll prope}ty of

the \ri1e o\yned br het' befole rralriage and that acctuiled after-walds
by gilt, devisc, 01'descent,$'ith the rents, issues and p]'ofils thereof, is
hef sepalnte plopelty and she m:ry conve)-it without thc consenl of the
husb.rrd. Any plopeltt_ corlveled t Ler silce n{a}' 19, 1889, is pr.e
suned to be hel. SeDflratclr'opcrtl', and i{ it be colle}'ed to hel and
het husbt|nrl, or her !d oth,"r' Dal'tics. slle is presunlc.l lo hold :s a
tcnant in cornnon, r.lnlessa coDtlary intelt appear's irl the deed to
her. She can .lc€d this sort of property $'ithout the consent of her
husba d and this plesumptior becomesfiDal irl favor of a purchaser
or enclrmblancel ir good faith and {or a veluable consideratior.

(]OIIMU\fIY PNOPERT\

The property of the husb:ud owned Ly hi]n befolc marriage and

that acquired allelwalds by gift, devise or- descent, \'ith thc rcnts,
issues anC profii.s thereof, is his sepalate ploperLy and he ciln convey
it without the consent of his wifc.
All other pr'opclty ol husband and \rife is corrmunili prirpert]'.
but its st?rtuscan be changed by dceds betwcer the spouses,oI agree
ments betrveenU'Lemso as to tender it the scpzuateIrloperty of either.
If propefty be purchased \viljh commuDity funds and the deed taken
irr the name of the {ife alonc with fhe knowledge and consent of the
husband it \yill be lresumed that he irltended to make a grft to her as
her sepalate !ropert\.. Without reciiing the vAious enactments and
decisiolls this may be taken as th€ law r€garding coD\.eyancesby
eiUrer hLrsbtrndaud $-ife or' by both. Nole carefull-v thc lbllo\f ire, lol
rn nany instanccs it will save delay and expelFe.

LtrGISLATIVE
ACTSAND COURTR,ULINCS
Often the signatule of a husb:ud or wife to a deed is denanded
when there be Do legal necessity for it. Here then is the present rule
as laid do$n by the Legislature and the Coufis:
1. The sep:rlate plopclty of either husband or-wife may be con-
veyed at any tirnc, lvith or {ithout consideration by the ownar, lvith-
out consent or sigratule of tha other.
2. Conmunity lroperty acquired prior to X{alch 13, 1891, no
matter if the deed Intl to either spouseot both, is in the absolute con-
ir'ol ol lhe husbaD.l nnd nray be conyeyed bt him {ithout his lrife's
consent oI srgrlatrue.
3. Comrnurity propelty acqui)ed s'irrce i\{arch 13, 1891, and
?t?jor to May 23, 191?, is fu the control of the husband and he c4n
make conve)'anceof it alone plovided the corsideration bc valuable.
He canrlot make gift dceds of community propelty acquil'ed since
March 13, 1891.
4. All conveyances,mortgages or leasesfor a longer pedod than
one year, of conlmunity ploperty acquired sir'I'c€Mau 23, 1917, rn]ust
 The Req.ltaBhe Book ol Cqlifortin 39

by both husbandand wife. Any deed,mortgageor lease

executed
morethan a year of suchproperty madeby the husbandaloneis

It must be rcmember€d,and this is of the greatestimportance:

the propedy dealt with be hom€steadall conveyancesor mortgages
be the joint pelsoral act of htisband and wife, no mattel wheth€r
property be separate,community or held in joiDt tenancy. It
be the persatui act of the parties. Executionby an Attolney
Factis not sufficient.

RECITE FACTS TO P&OVE SEPA&ATE PROPF,RTY

A careful conveyancer 'lvill insert in a deed to either husband or

any facts that will tend to sho1vthat same is sepalate prcperty.
mer€statementto that effect is rot conclusive;it simply acts to
the rules of evidence,but the statenent of such facts as, that
p$perty is a gift, or purchased with gift funds, oI in exchange
for otherseparateproperty the status of which is established.or the
like,may be of gleat value to a purchaserin caseof attack.

DEDDS IN CALIFORNIA

Now as to form and effect of deedsin conrmoDuse in the State:

the Codepmvidesthat a grant in r'€alproperty may be madein sub-
stance as follows: "I, A. 8., grant to C. D., all that real ploperty situ-
otedin (inselt nameof county) County,State of California, bound€d
rnd descdbed as follows: (here inser-tdescription) Wihressmy hand
t h i s . . . . . . . . d a yo f . . . . . . . . . . , S i g r e d A
. . B . " T h i s f o r n ro f d e e di s
sufficientto pass the full fe€, and any tiUe which the grantor may
aJterwards acquileadverseto that granted. A quit clain deednlay
beiDthe samefonn, changingthe \yord "Grant" to "Quit Claim." A
quitclaimdeedpassesthe title of the Crantoras fully as a grant d€ed
to all interestownedby him at the date of deliverTof the de€dbut
doesnot passaDy title which he may subsequentlyacquile. A deed
containingthe words "grant all my ght, title and interest iD etc.,"
b a quit claim. Care shouldbe exercisedin using the codeform of
deedto insertthe proper personalpronoun,either "I" or "We" as the
cssemay be, beforethe nameof the gr-antoror grantors in the body
of the deed.
Pmperly oi any kind mal be rrar,sfefrpd excepr a mere possi-
biliw not coupledwith an inter€st. Thus the possiblefuture inter-
est of a soll in his father's property which upon the death of the
fathermay vest in the son is not transferable. Likewise the possible
hterest of the wife in the community prcperty lvhich nlay be hers
uponthe dissolutionof the community by death of the husbandor
divorceis not transferableby her alone. A deedto lards taken up
underthe United StatesHomesteadLaws before final Droof is nade
is voidanda subsequ."tprtent to rhe granlordoesnot feedthe title.
A colveyancemay be made of all propetty ownedby the gmntor at
the dateof conveyancein generaltenns, but such a conveyancewill
notpasstitle to property subsequently acquiredby grantor, no matter
if it beso staied.
 40 The Realtu BkE Book of Califarnia
..GRANT,,
IMPLIES CMTAIN COVDNANTS

I The use of the word "Grant,, in the fonn of deed above shown
implies the following covenantsaDdnone omer:
1. That previous to the time of the execution of such convey-
ancelhe grantorhas not .onveyedihe sameestaleor any rishl. titie.
or jnlerestthcreinlo any pprsonother lhan the srantee.
2. That surh estalcis ar rhe lime of the executionof suchcon-
veyance free from encumbrancesmade or suffered by the grantor or
any one claiming uuder him. This is not a generalwan;nty. If a
granteeis taking clear of (,ll encumbrances,whether so made or suf_
fered or not, fle must not rely on this form of warranty but make
separateirquirl'r and investiEation.
PARTIESTO A CONVEYANCE
Now as to parties: There must be a legal capacityin the grantor
to convey and in the grantee to receive, otherwise the instrument is
invalid. Minors uDdel elghteenyears of age aDd those adjudgedin-
sane, or aD incomDetenthaving a guardian, calnot make valid deeds.
A woman under the laws of this state reaches majority at eighteen,
a man at twenty-one. The deedof a minor, boy or girl, under the age
of eighteen trcars is absolutely void and requires no disatrirmanie
upoDa[tajningrnajofity. Sucha gmnior may rplain bothmoneyand
propefly. A decdby a boyovp| pightee year.sat)drrnder. twenty-one
may be disafirmedwithirra rpasonable rime aller reachingmajority
by restoringjhe pul.haseprice. A deedby one adjudged"insane, oi
by onehavinga guardianis void and requiresno disafirmanceto re-
cover the prope*y. Comoraiionsmay lake and conveyreal proper[y
as freely as individuals.The deedlo a corporaiionmust run in its
corporate name-not to its officers. A deed from a corporation must
be in the corporate name, by its officials thereunto duly autho zed
by;1s governingboard. A dpedby a cor?oralionexonuledby any
other personsthan by thoseauthorizedro aci,by its board of dir;ctors
or trusteesacling as suchin a bodyjs a nullity and cannotbe after_
wards ratified. The deedmust be under thp scal oI the corporation,
if it has adopieda spal,olherwiserhp statemcntshouldbe madelhai
tt hasnoseal. Tf lhe idenlilyof the granteedoes no1appearihedeed
rs a nurrry. A.dpedto attcrnativegr'^nleps. as to JohnSmirl.". Mary
5mrrn.rs a nu rty, ueectq lo certajnpersonsns ifustaeslof an utrin_
corpor_ated association suchas a lodgeor a church\esrs the l;Ue in
the rnctrvrduats namedand the titlp descends lo their heirs. A deed1,o
a grantee as "trustee" without disclosingthe nature of a valid trust
vestsjhe title in. thc granLeeindividualiyif he pay a ronsideration.
rI thel.onsldpj-arron be paid by cnotherhe holdsas tfus{eelor the
one pajnng the considerationwith no powersexcep+to conveyto the
real.owrer. .tt no (-onsideration be paid l,hegranteeholds only a bare
legall,tllein,trust for his 0r.o,r/o,'
$ilhouf any powers wharsoever,
uo nor permttyour.trentsto mskeor acceplsuchdeeds,Thev onlv
lead lo doubt. confusionand possibteloss. In drawing d.;;;".-;-k;
sure you are de-alings,'itll the proper partiFs. Identitiyour grantor
ano gran-tec, _lt-youtind your grantora.quiredritle as J. Smith and
ne rs ln tael J. Smyhe tet that facl appearby proper re.ital. lt is
 Thz Redta Bk& Book of Caltc0'1),1'(1, 41

of party not name vrhich govems. If the grantor be

state. Ascertain if the property be homestead and if so
that husbsndand wife ioin in the sameinstrument andlthat
p€$onally. It is not necessaryto name the consideration,
deedbe by way of gift set out that fact that it may show
that the pxoperty is separate. Do rot multiply words in
of property or in covenants. The simplest form of ex-
'is be,stif it truly set forth the intent.

DEI,IVEBY OT DEED
deedis of no effect until delivered. This doesnot mean that
manualdelivery of the instrument itself must be made to
but there must be someact which standsfor' an absolute
intent to deliver in any event before the deed becomes
ve at all. A deed may be delivered to a third peNon to be
to the grantee under ceflain condilionsbut the inleni to
on fulfillment must be absolute and inevocable or there is no
in fact It is a commonpractice for husbandand wife to
deedsone to lhe other ol fhe samcproperLyand io deliver thpm
with instructions io deliyer in caseof the death of the
to the survivor or to destroy or return to grantor in case of
This is no legal delivery aDd the deedsare not efiective.
To become€ffective delivery of a deed must be made in such man-
t the srantor surrenders all dominion over the instr.ument.
It is lroper to distinguish between a purely legal escrc\9 and
deliveryin escrow,srhich latter will be seenconstitutesthe
an agentand not a true escrowholder.
..ESCROW"
AND "DEPOSIA IN ESCROW.,

A purely legal escror;vis created by the deposit of a grant with a

I personto be delivered to the gtantee upon perfomance of condi-
cerlain and detprmined in advance and all agreements made
thele be nothing further requiring coDsentor meeting of minds.
this is done the srantor has surrendered all dominion over the
and he cannot recall it. However, where such a deposit is maale
there yet renuins something to be agreed upon between the
; in short, if the contract is not executed anal complete, the
holds as agent for the grantor, and when the grantee
his documentsor money the depositary is then the agent of
gnntee as well. WheDa deedis depositedunder a legal escrow
authority of the depositary canhot be revoked without the con-
of both parties, but where the instruments and money are de-
ited under such circumstalces as constitute the depositary the
only of the one making deposit,this authority is revocable.
in mind herc the sharT distinction between an escrow which is
executedcontract and nothing remains as a matter of agreement,
4 so-called"deposit in escrow" where the contract is executory
there rcmain further matters of settlement and agreement. In
firut casethe authorif,y of the depositary cannot be levoked, while
tlle secondcaseit can be. Wher€parties under valid coDsideration
a delivery of a deed conditioned upon the papnent of money, or
 Thr Re(ltlt Bl e Bork r)l Cel.ilon.ul

the rer,dering of furthel considerution to the grantor, they may, as a

'part of thc transaction, crcate a valid escro\r.. The escrow holdel is
the age[t of the grantor for the purpose of holding the deed and re-
ceiving the purchase price, and there is imposed the obiigation to
retuln the deed at the end of the tine fixed if pa]'nent is not made.
Undel such circumstances the vendor has no rjght to withdraw the
deed until the expiration of thc stated time. We will take a case
where "A" deposits his deed wiih "B" lvith instNctions to deliver to
"C" *ithin ten days jf "C" Day the consideration or to securc for him
a note secllred by mortgage for the balance of the purchase pr.ice.
"A" can withdraw the deed and the instluctions at anv time befor€
' ' C " r , i r sn e t t h e s pc o n d i r i osr . A t
0 ' , y t i n . aL , " l o t . leh p i f . r , s r c t ; o r 'i g
completed either party may demaDd return of his dcposit and the
deposital'y can surlender wjlhoul lzri'irg hinself jieble. Ilo\!'e|er,
alter the tlansacti(D is conUteled ard €\'er'ghing in the dcpositaly's
hands and the contract be cxecuted, all save actual delilefv. the de-
positaly may not surrelrdel eitber docunents or. money tvithout con-
scnt of both par.ties. for h€ is the agent ot each. It is a grcwing prac
tice in the State to conduct real estAte tlansactions under. condiiions
cited above. It is a highly commendable placlice, one facilitating
business and making for- th€ safety oI lhe Darties, and such pEctice
should be understood in all its details and lesal asDects and
p n . . r a g p d . I r i s n o , i n o u r . o p ; " i o )A, r l \ i . r b t et o r e r f l o L r " ; l i e n t h a r
when he has deposited his mone-!.'ot documents that hc has lost con-
trol of them. It appears to ns Ural it is $,ell for him to knolv what
the Iights, duties, lesponsibilities ard obligations of all par.lies really
are that disputes may be avoided. By a so-called "deposit in escr.ow"
Ur€ padies to a transaction have not changed their tegal status. They
have simply appointed an agent to acl for. each. This agent owes to
each party the same obligations and must act impartially. He cannot
be censlired nor can he be held to account if the palties to the traDs-
action fall apart and he refuse to afbitr.ate between them or refuse to
comply with the demands of one paiiy without the coDsent of th€
other. He is agent for both without distiDction.