Page images
PDF
EPUB

fessional conveyancers.1 In this country, from the very first there has been a system of registration of deeds, with provisions that certified copies of the records shall be admissible in evidence, and that unrecorded deeds should be of no effect as against subsequent purchasers without actual notice and creditors. The registration referred to, however, has been one of deeds, not of titles, the theory being to simply copy the deeds on the records; not even the index, except in a few States, being a part of the record Of late years the registration of title has received much attention. The object of such registration is to apply to land a method of transfer in a way similar to that employed in sales of shares of stock. When the land has been registered, a certificate of title is made out and kept in the office of the registrar, and a duplicate given to the owner. The deeds made subsequently, instead of passing title, operate only as contracts to convey and as authority to the registrar to transfer the title. The transfer itself is effected by the surrender of the duplicate certificate of title and the issuing of a new certificate to the transferee. Transfers by descent, devise, or judicial process are made by the registrar on the authority of the decrees of the court having jurisdiction. There is no question that this system greatly simplifies questions of title, and enables land to be almost as readily handled in the market as shares of stock. The question still remains as to whether, under all the circumstances, it is a practicable scheme. That question, so far as this country is concerned, is for the future. The tests thus far are hardly sufficient to determine whether or not the advantage of simplicity is counterbalanced by disadvantages incident to the system. It has thus far been used in Ohio, Illinois, and Massachusetts.3 If generally adopted, it will practically revolutionize much of the existing law of real property.

The time required for acquiring title by adverse possession

1 Dumas, Registering Title to Land, pp. 48-51.

2 Hopkins on Real Property, p. 413.

* Dumas, Introduction, op. cit. 17.

A

has been generally shortened in this country by statute. new doctrine has come into the law of adverse possession through the decisions of American courts in that Adverse of color of title. By that doctrine the one in possession. possession, if he holds under a deed which purports to convey title, but for some reason does not, holds not merely the land actually in possession, but, under certain circumstances, to the limits described in his deed. 1

Such are a few of the features of two centuries' growth of real property law which are of general interest. The law truly lives and grows in this one of its oldest departments. It is ever striving to meet new conditions as times change and new questions arise.

1 American and English Encyclopædia of Law (2d ed.), vol. i. p. 846; Tate v. Southard, 3 Hawks (North Carolina) Reports, 119; 14 American Decisions, 578.

5

IV

CONTRACT

1701-1901

BY WILLIAM FREDERIC FOSTER, D.C.L.

In his well-known work on Ancient Law, Sir Henry Maine points out how the evolution of society has brought about a condition in which Contract has gradually, and to a large extent, taken the place of Status; and in another passage of the same work he makes the statement that public opinion is always, in progressive communities, in advance of law.

Both these propositions are undoubtedly true, the former being proved by the general history of the civilized world, and the latter, at all events as regards Contract, by the development of the law on that subject in the last two centuries.

A glance at the tables of contents of the earliest reports published in the United States will show how narrow, as compared with the present day, was the field of Contract in the law. Volume after volume may be examined without finding the heading of "Contract" at all in the indices, although occasionally a case or two may be found under the special heading of "Agreement" or "Covenant." From this it seems fair to deduce the fact that the broad, general idea of a Consensual Contract, independent of form or technicality, though fully accepted by all classes of the community, had not made its way into the domain of law to anything like the extent characteristic of modern times.

Hence the wide range of Contract, as we now recognize it, is the growth of the period under review, the starting

point probably being about Lord Mansfield's time, in the latter half of the eighteenth century.

The space at command will permit only the barest outline of the changes and development wrought by time in the realm of Contract, and it will be convenient to point out how the passing of two centuries has left its mark by noting these alterations under various heads; viz., Form, Parties, Subject Matter, and Statute Law.

First, then, as to Form.

Here we must note the decline in the value of the sealed instrument. Pollock, in his work on Contracts, says:1

Form.

"The ancient reason why a deed could be sued upon lay not in a consideration in our present sense of the word being presumed from the solemnity of the transaction, but in the solemnity itself. The forms of sealing and delivery come down to us from a time when the general theory of the law started from a different or even opposite point to our own. The fundamental assumption of ancient law (when it got so far as to recognize contract at all) is that the validity of a contract depends, not upon the substance of the transaction, but upon its fulfilling certain conditions of form, and being established by one or other of certain strictly specified modes of proof."

The decline in the importance of the seal is one of the most striking instances of the emancipation of the law, and of its tendency to bring itself more into harmony with the ideas of the times. In some States,2 the use of private seals is absolutely abolished, and in others, though the form is still preserved, a simple scrawl is sufficient instead of the impression in wax formerly required. The progress of opinion in the matter of sealed instruments is well illustrated in the case of Corporations. At common law, the contracts of corporations were required to be under seal. "This rule,"

1 Pollock on Contracts, chap. 3, p. 132.

2 Ohio, Indiana, Iowa, Kansas, Nebraska, Tennessee, Texas, Montana, Mississippi.

1

says Pollock, "is remarkable as not being an institution of modern positive law, but a survival from a time when the modern doctrine of contracts was yet unformed." It would appear that in England, as the law now stands, a trading corporation may make, without seal, any contract incidental to the ordinary conduct of its business. In the United States the rule has been much further relaxed. In the absence of charter or statutory provisions to the contrary, a corporation need use a seal only where an individual would be required to use one. Like a natural person, also, it can ratify any contract made by an agent which it could have authorized the agent to make.

"It would seem to be a sound rule of law that wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parole contracts made by its authorized agents are express promises of the corporation, and all duties. imposed on them by law, and all benefits conferred at their request, raise implied promises for the enforcement of which an action may well lie." 2

In dealing with the subject of Contract in American law, it is impossible to avoid some reference to the doctrine, peculiar to Anglo-American jurisprudence, of Consideration. The origin of this important element in our contract law is involved in some obscurity, and modern writers have hazarded various conjectures on the subject. Thus, Anson says: 3

[ocr errors]

"It is a hard matter to say how consideration came to form the basis upon which the validity of informal promises might rest. Probably the quid pro quo which furnished the ground of the action of debt, and the detriment to the promisee on which was based the delictual action of assumpsit, were both merged in the more general conception of consideration as it was developed in the chancery."

1 Pollock on Contracts, p. 146.

2 Bank of Columbia v. Patterson, 7 Cranch (United States Reports), p. 299.

8 Anson's Law of Contract, p. 55.

[ocr errors]
« PreviousContinue »