religion in its schools, or of its duty to abstain from such teaching, and what precisely is meant by the doctrine of religious liberty and equality as we have engrafted it in our constitution, are still, it appears, open questions, and threaten violent and angry controversy.(n)

The limits of local self-government-what it properly embraces, in what directions and how far it may be extended, and in what degree the state may limit and control it-are still demanding the attention of both the lawyer and the legislator, and questions concerning them become at times of universal importance.(0)

Not less difficult and important are the questions regarding the proper division of governmental powers between the three departments created for their exercise. We have endeavored so to frame our constitutions that "the legislative department shall never exercise the executive or judicial powers, or either of them; the executive shall never exercise the legislative or judicial powers, or either of them; the judicial shall never exercise the legislative or executive powers, or either of them; to the end that it may be a government of laws, and not of men."(p) But what is legislative and what is executive, and what is judicial power, and who shall say when either is seized into usurping hands?

The attention of the student is called to a few of these questions for the purpose of indicating the broad fields which still await the laborer who shall fit himself to enter them. The foundation for due preparation must be laid in student life if ever, and he who lays it broad and deep may find himself called upon to take part in the struggles of the giants which some day will be had over these questions. No small share of this preparation will be made when

(n) Attention is directed to the thorough examination which this general subject underwent in the case of Minor v. The Board of Education, in the superior court of Cincinnati (published by R. Clarke & Co., Cincinnati), and to the masterly arguments made at the bar. The case shows how important it is that the investigations of a lawyer, especially on constitutional questions, should take a wide and liberal range, and that he should make himself thoroughly familiar with the fundamental principles of the government under which he lives. The arguments of counsel are deserving, for their ability and research, as well as for the importance of the subject discussed, of the most careful and thoughtful examination. It is well with any lawyer when he is so full of his subject that he can truthfully say, as was said by the honorable Stanley Mathews, at the close of a long and masterly argument, replete with learning, and glowing with apt illustration: "There is a world of things crowding upon me to say; but I must forbear."

(0) The question of the right of a state to require or empower its municipalities to aid, by loans or donations, the private corporations who are engaged in constructing works of internal improvement, is certainly one of the most important now before the American people. There are many who question the right, on the same ground, substantially, on which patents of monopoly were declared unlawful in the time of Queen Elizabeth. 'For the end of all these monopolies is for the private gain of the patentees:" not for the benefit of the public. Darcy v. Allain, 11 Rep. 84. Of late there has been a decided disposition in some states for the legislature to take to itself a large share in the government of its cities, and even the appointment of municipal officers. This is supposed to be justified by local abuses and to be within that supreme control which the state is said to have of its municipal subdivisions when not restrained by positive provisions of its constitution. But it is worthy of some reflection whether the people in enacting their constitution ever understand that they are conferring such supreme power. Local self-government is the most conspicuous and important fact in our political history; and it cannot be doubted that every state constitution has been framed in the expectation that such government is to continue as an unquestioned right. It may be seriously questioned whether the power to take away or seriously abridge this right can be considered as fairly within any general grant of legislative power, and whether express constitutional guaranties can be needed to secure that which has always been enjoyed from the very earliest history of the country, and which is understood to be the birthright of American citizens.

(p) This is an extract from the constitution of Massachusetts.

the author before us is carefully read and understood, but the standard American writers on government ought also to be familiar, and what is peculiar in our system should be made the subject of special study and examination. In this field of his inquiries the student will meet with much that is crude, and with many decisions made under circumstances precluding due deliberation, and perhaps presenting to the mind only vague and indefinite notions of constitutional right; but it is not essential that he should follow blindly the leading of any man or any court; the light is always attainable if he will but strive for it, and the greater the confusion of authority, the greater is his credit if he can succeed in pointing out clearly the principle that should govern.(g)

The admirable lectures of Chancellor Kent every student is expected to master after he has made himself familiar with the Commentaries of Mr. Justice Blackstone. Those lectures give us a pleasant, though very much condensed, view of the general principles of the law of nations; of American constitutional law, of the sources of the municipal law of the several states, and of the absolute and relative rights of individuals. The law of corporations next engages attention. Students who read by themselves usually complete the reading of this work before passing to any other, but if, instead of so doing, they should adopt the course, after mastering the lecture upon a particular subject as for instance the subject of corporations-of taking up one or more of the leading treatises upon the same subject, they would make more sure of their ground as they progressed, and be likely to acquire a knowledge more precise and accurate. The clear and lucid presentations of the leading principles of all these subjects made by Kent will prepare one to master the details of the more extended work. (r) Passing then to the law of personal property and of contracts in Kent the student will find it useful in like manner to follow with the works of text writers devoted to these branches of the law. (8) Works upon particular divisions of the law of contracts, such as bailments, agency, partnership, and mercantile law generally may usefully be read in immediate sequence. Upon all these extended and exhaustive treatises will be met with, and as the subjects are of every-day importance in the lawyer's practice, it is likely that these treatises, or others of equal value, will be presented in new editions from time to time as accumulating decisions or new circumstances shall render important, so that the student may at any

(9) Upon the subject of the federal constitution, no work as yet supersedes the elaborate treatise of Mr. Justice Story; though if it were re-written in view of recent events and authorities, it might be made much more valuable, and be largely increased in interest to those who shall hereafter read it. Some very convenient little hand-books, presenting analyses of the constitution, and some of them giving the decisions of the courts under its several clauses, are readily attainable. The foundations of federal constitutional law may be traced very satisfactorily in the pages of the Federalist, and Elliot's Debates will be useful for reference. Upon International law Mr. Wheaton's treatise still retains the first rank.

(r) Upon corporations, the best now in use is the treatise by Angell & Ames. It seems, however, to prove repulsive to students, though almost indispensable to the practicing lawyer. Grant on Corporations is also a good work, and the law on the same subject is also set forth very fully and clearly by Mr. Redfield in his work on railways.

() Williams on Personal Property is an excellent work. Metcalf's Principles of the Law of Contracts is a good introduction to this subject, but the student must not content himself with that. There are several elaborate treatises on contracts now in use; that by Mr. Parsons being the general favorite. Browne on the Statute of Frauds is valuable in the same connection.

1

time have in some one or more of them a satisfactory and reliable view of the existing law. (t)

When the student, in pursuing this course, shall reach the law of real estate, it would be well for him to pause for a moment, to consider some of the circumstances which are apt to render its study superficial. There is no lack here of abundant and safe guides, for the works upon real estate law are numerous, profound and exhaustive; but that they do not prove attractive must be confessed, and that they fail to receive that attention which the importance of the subject demands is evident. The student who has studied the law of contracts faithfully and with interest will not unfrequently suppose he may safely slight the law of real estate, and, after acquainting himself with the ordinary forms of conveyancing, and a few of its familiar rules, will pass on to other subjects in which his interest is more readily engaged.

Upon no other branch of the law has so much patient thought and so much profound learning been expended as upon the law of real estate. Some of the treatises in this department have been the admiration and delight of the ablest cotemporary lawyers, and are never read without leaving profoundly impressed upon the mind their wonderful erudition and thoroughness. For this very reason, and because their proper study tasks the mind so severely, they have been shunned by the student. Works like Littleton's Tenures, Fearne on Contingent Remainders, Saunders on Uses and Trusts, and Sugden on Powers, will not willingly be selected by the beginner as his text-books, if he can make himself believe that, after reading Blackstone and Kent, he will attain the same practical end by familiarizing himself with the common forms of conveyancing, and with the questions which most often arise between vendor and purchaser. And the whole tendency of modern legislation concerning real estate has been to lull the student into a false security, and to incline him more and more to rely upon such superficial knowledge as might answer the purpose of the conveyancer, but which fails to embrace the questions of nicety and difficulty. In both England and America the attention of some of the ablest minds has been directed to a reform in the law of real estate, with a view to relieving it of unnecessary and cumbrous forms, useless technicalities, and fictions which answer no useful purpose. The changes they have introduced have been great; in some respects very radical: and their influence has been to impress us with the belief that the ancient learning in real estate law has become obsolete and useless, and that time can be more profitably spent in acquiring a practical knowledge of the manner in which business is now done, than in poring over the musty books which were the vade mecums of a past age, but which have now become mainly matters of antiquarian interest. Other important circumstances, which have operated mainly in the newer states, have had a tendency in the same direction. Real estate has been cheap; we have been near the source of title; conveyances of any particular parcel have not generally been numerous, nor the title complicated; the modes of transfer have been tolerably uniform and well understood; we have a general

(t) Edwards on Bailments, and the work by the same author on Bills and Notes are careful and judicious treatises, and are always read with satisfaction. The works by Mr. Parsons on Notes and Bills, and on Partnership are also valuable. Collyer on Partnership is preferable to Story. Mr. Smith's treatise on Mercantile Law is an excellent one, and Mr. Parsons has written acceptably on the same subject.

system of registry designed to give purchasers information concerning the conveyances which have been made; and, as every man of plain common sense is able to understand all these, one naturally comes to think that the nearest justice of the peace is competent to transact the business connected with his purchases and sales, and that his own good sense is sufficient to protect him against flaws in titles, or against being entrapped through the means of inadequate conveyances of the land he buys. Unfortunately he sometimes discovers, when too late, that unaided good sense is not always an infallible guide in matters of law, and that one who relies upon it implicitly is in the proper condition of mind to be made the victim of misplaced confidence. Many a man has lost his all by assuming the sufficiency of his own knowledge and judgment in real estate matters, and by resting satisfied with his own examination, or that of his county register of deeds, where he ought to have called in the best legal advice that was attainable. Sharp schemers do not overlook this fact, and many of them thrive by it; but we should be obliged to confess, if interrogated on that point, that many legal practitioners also do not properly appreciate the nature of their task when called upon to advise regarding titles, and that the assistance they assume to render is admirably calculated to lead astray.(u)

(u) of this there could not possibly be a better illustration than the implicit reliance which is apt to be placed upon the county records of deeds as a means of ascertaining precisely the situation of the title to a particular parcel of land. A little reflection will convince us that these records cannot give all the information requisite: that it is entirely possible for perfect titles not to appear upon them at all, and that often they will indicate an indefeasible right in one who, in fact, has no title whatever. Indeed, in many cases, the nature of perfect titles is such that they cannot be spread upon the records, and in all cases there are important facts concerning which the record is silent, and which must necessarily be determined by extrinsic inquiries.

To illustrate this. let us suppose that a lawyer's client brings him an abstract from the county recorder's office, and requests his opinion as to the title which it describes. Let this abstract be in the following form:

"Southwest quarter of section 12, town 9 south, range 2 east, Ohio.

1. Entered by John Hemingway and patented by U. S. to him August 1, 1836.

2. John Hemingway to William Jackson, warranty deed; dated September 10, 1836; recorded March 18, 1838, in liber B of deeds, page 80. Duly witnessed and acknowledged. 3. William Jackson to Richard Benson, warranty deed; dated March 18, 1838; recorded same day in liber B of deeds, page 81. Duly witnessed and acknowledged.

4. Richard Benson and Harriet, his wife, to James Byles; quitclaim deed; dated October 1, 1862; recorded same day in liber Y of deeds, page 292. Executed in the state of New York and properly certified.

5. James Byles, by William Smith, his attorney in fact, to Edgar Bennett; warranty deed; dated July 15, 1868; recorded October 12, 1868. In due form of law.

The records of this office show no mortgages or other liens upon the land, and the title appears to be perfect in Edgar Bennett. John Doe, register of deeds."

Nothing apparently could be more straightforward and business-like than this document, and one is probably safe in saying that the majority of purchasers would rely upon it implicitly, and would receive and pay for Mr. Bennett's conveyance without suspicion that it could possibly prove defective. But a prudent conveyancer would feel no such reliance, but would treat this document as an assistance merely in the necessary investigations; as a guide in his inquiries, and not as in and of itself presenting the needed information. He would, therefore, inform his client that further investigation would be necessary; that a register of deeds could not make a title good by certifying to its correctness, and, indeed, could not properly give such a certificate at all, and that all the facts which are stated in this abstract are not inconsistent with a worthless claim in the party here stated to have a perfect title. And he would thereupon proceed to obtain from other sources the information which the record could not give.

1. By inquiries of his client, of the present claimant, and of other sources, he would endeavor to ascertain as much as possible concerning the several grantors mentioned in the abstract of title, where they lived, and what was their connection with the possession of the land, and their identity with the grantees of the same name. Also, whether other parties have

Vol. I.-3.

There are not many things in the old law of real estate which the lawyer will find it without importance to know, and his knowledge will sometimes be called into requisition under circumstances which preclude a resort to the

at any time been in possession of the land, and if so, for how long and under what claim of right. All these inquiries may be of the utmost importance, as we shall soon perceive, and aided by them he will proceed to consider the successive steps in the chain of conveyances. 2. The patent by the United States to any one may generally be assumed to convey the title, the United States having been the original owner of all the region in which this land is situated. Still, it is possible for such a patent to be void. The government may. previously, have patented the same lands, and the second patent may have issued through mistake, in which case it would of course be void. Or the government after having once parted with its title may have acquired some right again-as sometimes happens in enforcing its demands against public debtors-and, in this case, its subsequent conveyance could give no better title than the government had acquired by its purchase. It would be necessary, therefore, in such a case to scrutinize the title of the government with the same care that would be requisite in the case of any other proprietor.

3. Coming to the conveyance by Hemingway, the first inquiry which suggests itself is, whether he be the same person to whom the government conveyed? Identity of name is no more than prima facie evidence of this fact, and may not be even so much, if his residence, as given in his conveyance, appears to be different. Let us say here, once for all, that a record can never identify parties: outside inquiries are absolutely essential for this purpose, and when it is so easy for one man to personate another, and when besides there are often many persons of the same name, these inquiries cannot be too particular. A conveyance by any other John Hemingway than the one to whom the government conveyed, or by any person falsely assuming his name, would of course be void; and no title apparently good of record could protect a purchaser against the claim of the real patentee.

4. Suppose the inquirer to have satisfied himself of the identity of the patentee with the grantor of Jackson, a further question is, whether he had made any other conveyance, or any mortgage of the lands previous to the recording of the deed to Jackson. And this brings us to notice the principal object of the registry laws, which is, to give notice to purchasers of any previous conveyances or liens by the person of whom they buy. A purchaser who examines the records and finds no conveyance by his vendor has a right to assume that none exists; and if he then receives a conveyance in good faith and for value paid, and places it upon record at once, he is protected by it, even though there be a prior conveyance also obtained for value. As between two bona fide purchasers, the registry law gives protection to him who was sufficiently diligent and prudent to have his deed immediately recorded, and the deed of the other, even though prior in point of time, is void as to him, provided he had no notice of it when he bought, received the conveyance and paid the consideration.

5. As no wife appears to have joined in Hemingway's deed, it will be necessary to inquire whether he was at the time a married man, and if so, whether his wife is still living. If she is, she has or may have a right of dower; and the facts regarding this will need investigation.

6. In the case of this and also every subsequent deed. it is important not to be satisfied with the simple statement that it is a warranty deed," but to examine its terms and see what the covenants are, and also whether it gives any intimation of any fact which qualifies in any way the title of the grantor to the possible prejudice of a purchaser Although there are no mortgages of record, there may be some in existence, and the deeds may give information concerning them. Such information the purchaser is bound by, for it is a general rule that a man is regarded as notified of whatever appears in the instruments which constitute his chain of title; and whether he actually reads them or not he is equally chargeable with knowledge of their contents. Jackson v. Neely, 10 Johns. 374; Brush v. Ware, 15 Pet 93. Daughaday v. Paine, 6 Minn. 452; Reeder v. Barr, 4 Ohio, 446. If therefore a deed refers to an unrecorded mortgage, or to any other outstanding claim, it becomes necessary to ascertain its present condition and validity; for a purchaser will take subject to the rights under it of which he is constructively notified. It is important also to see that the deeds contain the proper words of inheritance. See post, book 2, page 107, and notes.

7. The attestation and acknowledgment of the deed are to be compared with the statute in force at the date of execution, to see if they constitute a compliance. And it is always to be borne in mind that the record of a deed not executed as required by the recording laws is a mere nullity, and cannot be used as an instrument of evidence. Clark v. Graham, 6 Wheat. 577; Choteau v. Jones, 11 Ill. 300; Pope v. Henry, 24 Vt. 560; Galpin v. Abbott, 6 Mich. 17; Work v. Harper, 24 Miss. 517; Patterson v. Pease, 5 Ohio, 190. If there is any defect in this particular, the original deed should be obtained for the purposes of having the proper correction and a new record made.

8. Coming to the deed from Jackson to Benson, the same questions regarding identity are to be asked. and the same precautions observed in other respects which have already been pointed out.