Columbia University Libraries Digital Collections: The Real Estate Record

Real estate record and builders' guide: v. 20, no. 498: September 29, 1877

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Real Estate Record AND BUILDERS^ GUIDE. YoL. XX. NEW YOEK, SATURDAY, SEPTEMBEE 29, 1877. No. 498. Published Weekly by TERMS. ONK YEAR, in advance....$10.00. Communicafcions should be addressed fco C. W. SWEET, Nos. 345 AND 347 Broadway. C0NVEYANCIN(3^. As incredible as it may appear, it is neverthe¬ less true, that in nearly every real estate title or contract there is a possible law-suit. The titles are such mere abstractions of law so totaUy dis¬ sociated and disconnected from the land, that every one bristles with more or less intricate and profound legal questions. The foreclosure of mortgages, the probate of wiUs, and bankruptcy proceedings frequently intervene to compUcate the features ordinarily ai-ising. When we consi¬ der that the common law ofiEngland, oi-iginating with a pre-Adamite race, and carefuUy hand¬ ed down to Noah, Julius Caesar and WiUiam the Conqueror, modified and emended as it is in this State by special statutes evolved from the superlative wisdom of our legislators, not always the most inteUigent or highly educated persons in the community, is the code governing aU ques¬ tions in real estate, we can form some conception of the difliculties and labors involved in carefully examining and precisely determining the merits of a real estate title. Property not infrequently becomes the subject of special covenants and agreements between owners, and of the disturbing effectSi of tax sales, all of which impinge very sharply upon the chain of the title. In inaking im¬ provements and estabUshing bmlding lines, con¬ crete obstacles frequently originate that cause no little embarrassment in arriving at a clear title. In aU these cases questions of the most deUcate and sensitive nature constantly arise that effect the essence of title, and unless properly squared and settled upon the record prejudice or vitiate its clearness and negotiability. It is too much to say that there is no absolutely perfect title to real estate in our city, but this much safely may be aUeged, that there are comparatively few titles which skillful and learned coimsel would be wiU¬ ing to certify to as absolutely good and free from any contingency of litigation. There are sources of title, such as the corporation of the city of New York, also some weU known estates and in¬ dividuals, upon whoni age has conferred an inde¬ feasible title which are esteemed preferable to others. And yet after the lapse of time and many conveyances, through carelessness and ne¬ glect these titles may become so compUcated and involved as to require great discrimination arid care on the part of the examiner in unravelling them. There are abstracts, known in law offices, which resemble in their perplexing chain of pro¬ positions Professor Airy's mathematical tracts, or problems in the Calculus. A multitude of titles have been brought, through much legal assi¬ duity and acuinen, tp what is popsidesed a mer¬ chantable state, and no reputable office woiUdrisk its standing by calUng them into question. Many titles have been hotly Utigated, have run the gauntlets of the several courts, and been finaUy adjudicated in the highest tribunal. A favorite remedy for formidable defects is an act of the Legislature, constituting what is called a "Statu¬ tory title." Although binding and vaUd, these are not generally looked upon with favor. Usually there is a well-beaten track, a sort of macada- nUzed road, the result of successive and laboi-ious examinations running clear through the majority of our titles, supplying landmarks, bridging chasms and hiatuses, aud affording dugways, around difficult and unsurmountable points. In very rare cases have obstacles proved them¬ selves too formidable for legal skill to measure and overcome. Considering the comparative antiquity of many of our titles, we may congrat- lUate ourselves upon having a large proportion of merchantable and accepted ones, and an incon¬ siderable number of those that totally fail to pass muster. These reflections are intended to suggest the superlative importance of employing responsible and careful examiners, and to magnify rather than disparage their particular labors. In this department of the business no superficial or care¬ less work can be tolerated or countenanced. An examination, to be of any value, must be complete and exhaustive. The absti-act should present every feature and ramification of the title in minutest detail, and be accompanied with original or well authenticated official searches—such an abstract when met with is a treasure which no intelligent landowner can afford to dispense with. It is the virtue of carefulness that is required in a convey¬ ancer, rather than a high order of ability, because sheer neglect may create obstacles which the high¬ est legal skUl subsequently can scarcely overcome. The questions arising in this department of law become important on account of the gi-eat money value at stake, rather than owing to any excep¬ tional abstruseness or intricacy belonging to them. We rarely find the great lights of the profession bending their inteUects to this particular branch. On the contrary, it is of tener relegated to the sub¬ ordinates and jimiors of the office, as a matter of ordinary routine. The principles of real estate law are usuaUy famUiar to the freshest graduate from the law-school, and form the customary stock in trade of nearly every one who essays the prac¬ tice of law. WhUe we would lay particxUar stress upon the necessity of careful examinations, we would by no means recognize the propriety of exorbitant charges for the performance of this service. As every case in surgery is not a compound fracture, or in midwifery a placenta presentation, so in the examiuation of titles the knotty problems occur so seldom, that the highest skiU is rarely invoked or exercised. Greater labor and drudgery may be involved than in any other department of prac¬ tice, and it is probably iu this respect that the semblance of justification is found for heavy charges. This feature doubtless prompts many an aspiring attorney to magnify his office by the exaggeration of minor defects connected "jyith a title, such as should be remedied without com¬ ment and cei-tainly without extra charge to his client, as a part of the usual detail of the work. Verbal errors frequently occur in the engrossing of preceding conveyances, mistakes of description, of names, and particularly omissions or .errors in the notary's certfficate, and sUght variations in the specified metes and bounds of property, on all of which items the youthful practitioner delights to sharpen his wits and display his skill and erudition, resulting often in the adoption of a systematic course of annoyance and extortion towards his client. The lat¬ ter, through ignorance or inexperience, may be unable to appreciate the effects of these laches, or to discriminate as to the weight to be attached to them. Such a course of procedure is repre¬ hensible, and calciUated to disturb the confidence of the pubUc in the vaUdity of titles generaUy. Many a merchant who has essayed the task of real estate ownership for the first time becomes overwhelmed on the presentation of his abstract at the mere sight of its voluminous and incom¬ prehensible contents. Where such impUcit trust is reposed in tjhe good faith and abUity of counsel ^visdom and propriety should admonish him to refrain from presenting to his client any but the most vital defects that may arise, and then only such as are irremediable. In the current exami¬ nations the amount of labor involved may be deemed pretty nearly equal, and as a consequence the range of fees for this service should show but trifling variations. It is faithfulness more than talent that the real estate owner looks for in his attorney, and for this quality surely no inordi¬ nate fee should be exacted. In the past the greatest abuses connected with real estate have originated in the broker's and lawyer's offices, and particularly in the latter, where transactions usuaUy reach their final con¬ summation. In many a case the laviryer's fee has been made to include the unlawful bonus which was exacted for loans. Apart from unlawfid practices, even the steady and sober members of the profession have been Uttle loath to sweU the magnitude of their fees in keeping with the gen¬ eral inflation, untU they reached the dimensions of an onerous tax upon property, and a prohibi¬ tive assessment upon transactions in real estate. We are happy to say, hewever, that these things are of the past; that within two years notable changes and reforms have been introduced, fol¬ lowing in the wake of the reduction of the inter¬ est rate on loans. The plethora of money and the limited demand for it have combined to do away with usurious rates, and rendered the ex¬ penses of consummating a loan the legitimate subject of bargain and discussion. The leading firms of the city have promptly and readUy ac¬ cepted the situation, and reduced their fees to ac¬ ceptable proportions. We have heard of many offices where the standard charge for examining a title is one hvmdred dollars, without reference to the magnitude of the loan or purchase price, abandoning entirely the percentage system which was once so offensively practiced. Whether these fees have settled upon their lowest scale or not is a question which the future must deter-