books for careful investigation. The man who in extremis sends for his legal adviser to draft a complicated will may be blamable for delaying so important a business until the immediate urgency is so great, but in this regard he is only equally negligent with a great many of his fellows, and the lawyer must

9. The deed from Benson to Byles is by quitclaim. A deed without covenants is as effectual to convey the vendor's title as any other, but the fact that the vendor declines to insert covenants in his deed when his title is apparently perfect, is a circumstance which always suggests doubt in respect to the title, and renders additional caution important. Generally the vendor who has no doubt regarding his title will not hesitate to give the ordinary deed of warranty, and the purchaser, if he is buying for full value, will insist upon having it. It is a reasonable inference when a mere quitclaim is given, that both parties supposed the title might prove defective, and that the purchaser has bought at a discount in consideration of the risk he assumed. And it may prove, on inquiry in this case, that the William Jackson who conveys was not the purchaser from Hemingway, but only one of several heirs at law who had sold and quitclaimed his undivided interest. In such case the interest of the other heirs would not be affected by his conveyance, and the right which could be claimed by his grantee, though apparently good to the whole land, would in reality be valid for his undivided interest only.

10. And this leads us to remark, that the title derived by descent or devise from a deceased person does not usually appear on the records of the office of the recorder of deeds, and in some states there is no provision of law by which it can be made to appear. When a person dies leaving no will, the title to his real property vests at once in his heirs at law, subject to be divested in case it should become necessary, in the course of administration, to resort to it as assets for the payment of debts. The heirs may sell their right, and no other steps are essential for the purpose than would be required if their title had come by purchase. One who should buy of them must take subject to the following contingencies:

A will of the ancestor may be discovered and probated, which shall devise the estate to other parties.

Administration may be taken on the estate, and debts proved to an amount exceeding the personal assets, and then it may be necessary to sell the real estate in order to pay them.

Each heir can convey his undivided interest only, and the purchaser at his peril must ascertain the number and identity of the heirs, and the extent of their respective interests. Even where an estate is being duly settled under the statute. the probate records are not conclusive upon these subjects, at least before the final decree of distribution. The purchaser must also, at his peril, ascertain that the heirs from whom he buys are of the proper age to make conveyances.

11. As the Benson deed appears to have been executed in the state of New York, it is important to ascertain what provision was made by the law of Ohio for the record of such deeds. The law of the jurisdiction where the land is-the lex rei sita-is the law which must govern such conveyances; and a deed, perfectly good in New York, where it is executed, may prove insufficient, under the law of Ohio, where the land lies. The statutes of the several states will be found to provide in what manner deeds of lands therein, when made abroad, shall be executed; and the deed must, therefore, be compared with the statute, to see if there has been a compliance. And, as there is no common law on this subject to help out a defective conveyance, nothing short of a substantial compliance with the statute will avail. A defective deed may amount to a valid contract of sale, the specific performance of which may be enforced; but a purchaser wants the title, and not a lawsuit.

12. Benson's deed to Byles appears to have been executed more than twenty years after he obtained his title. It is possible that in this interval his right may have been extinguished by an adverse possession. This consideration is, of itself, sufficient to demonstrate the importance of making inquiries regarding the occupation of the land; but they would also be important, though in a less degree, where sufficient time had not elapsed for the statute of limitations to attach. It is a rule, generally, though not universally, recognized, that, where one buys land in the possession of another, he takes it subject to the rights of the possessor, whatever they may be. Lea v. Polk Copper Co., 21 How. 493; Hughes v. United States, 4 Wal. 232; Morrison v. Kelly, 22 Ill. 610; Coleman v. Barklew, 3 Dutch. 357; Helms v. May, 29 Geo. 121; McKee v. Wilcox, 11 Mich. 358. The exception to this principle is where the possessor sets up a claim in opposition to his own conveyance. Scott v. Gallagher, 14 S. and R. 333; Newhall v. Pierce, 5 Pick. 450; Bloomer v. Henderson, 8 Mich. 395. Or where possession by him is consistent with the title appearing of record: Patten v. Moore, 32 N. H. 384; Truesdale v. Ford, 37 Ill. 210; Elly v. Wilcox, 24 Wis. 581. See further, McKinzie v. Perrill, 15 Ohio St. 168; Crassen v. Swoveland, 22 Ind. 434. A man, therefore, who is in possession under a lease or an unrecorded deed is protected by his possession, and other persons cannot acquire equities as against him, where they buy without taking the trouble to inquire into the nature of his claims. 13. Benson's wife appears to have united in his deed, for the purpose of releasing her right of dower. As to this, it is important to know.

be prepared for calls of this character, and ready to respond to them. The most difficult and intricate questions he is ever compelled to grapple with will sometimes present themselves when the proposed testator states his wishes regarding the settlement of his property, and in many cases they must be met promptly and settled without delay. To enable a lawyer to enter upon such a task without misgivings, he must have fitted himself by a thorough study of the elementary rules as presented and discussed in the leading treatises; and if he has contented himself with a smattering of real estate law-such as may enable him to buy and sell real estate and draft common conveyances, he has no right to jeopard the interests of those he assumes to aid, by drafting an

Whether the execution and acknowledgment of the deed by her were in due form, as required by the statute; for, if not, they are void. A married woman has no general power to release her contingent right of dower during coverture; and can only do so in the manner the statute has prescribed. The strictness with which statutory forms are required to be observed may be seen in some of the cases which Mr. Washburne has collected. 1 Washb. Real Prop. 200, et seq.

Also whether the wife was of lawful age at the time of executing the release. The statute which authorizes the wife to release her contingent right of dower does not relieve her of any other disability which she may be under, besides coverture; and, therefore, if she be, in law, an infant, her deed is void. Hughes v. Watson, 10 Ohio, 127; Priest v. Cummings, 16 Wend. 617, and 20 id. 338; Jones v. Todd, 2 J. J. Marsh. 359. Some of the states, however, it is believed, have changed this rule.

14. The deed from Byles to Bennett appears to have been executed by attorney. Was this attorney duly authorized? To answer this question intelligently, we must have the power of attorney before us. It must be under seal, and its terms must be such as to empower this particular deed to be executed. If the examination is satisfactory on this point, the purchaser would need to go still farther, and ascertain whether or not it remained unrevoked when the deed was made. Byles, in the mean time, may have died or gone into bankruptcy, or he may have expressly revoked his letter of attorney by an instrument for the purpose, duly executed and recorded. If satisfied that the power remained in force, the next question is, whether it has been duly executed. The deed made under it should be executed and acknowledged in the name and as the deed of the principal by William Smith, his attorney, and not in the name and as the deed of the attorney himself. Elwell v. Shaw, 16 Mass. 42; Barger v. Miller, 4 Wash. C. C. 280; Thurman v. Cameron, 24 Wend. 90; Harper v. Hampton, 1 Harr. and J. 709. If defective in this particular, extrinsic evidence cannot be resorted to for the purpose of showing that the attorney designed to make the proper conveyance which he had failed to execute. Wilkinson v. Getty, 13 Iowa, 157.

15. As James Byles executes the deed alone, inquiry must be made whether at the time he was a married man, and if so, whether his wife is still living. And this may be important for a further purpose than to ascertain whether a dower right exists. The land may have been the homestead of Byles; and if occupied as such, it may be found that, at the date of this deed, the statute of the state forbade its alienation except by a deed in which the wife joined.

16. When satisfied upon all these points there are still others which present themselves for investigation. There may be tax titles upon the land; it may have been sold in judicial proceedings against any of the several owners; any of them may have gone into bankruptcy and lost his title thereby; any of the deeds in the chain of title may be forged, and therefore void; any one of the grantors may have been an infant, insane or idiotic; there may be suits pending in chancery which affect the land; and the prudent lawyer who is employed to investigate the title will never rest satisfied until he has made his inquiries cover all these points.

The title here supposed is one of the most simple character, and presents none of the abstruse or difficult questions which are constantly arising in real estate transactions. If one link in the chain of title happens to be a will, new and more difficult questions will arise. It may then become important to know whether the rule in Shelley's case is in force in the state or not; for the nature of a devisee's estate, whether a fee or not, may depend upon it. And in any case of a devise it will be important to ascertain whether the will has been duly probated and the estate duly settled; for until then, the title of the devisee is subject to contingencies. If one link is a judicial sale, or a sale by executor, administrator or guardian, or a tax title, the lawyer ought to examine every step in the proceedings carefully; to take nothing for granted, but satisfy himself from his own inspection that every thing is substantially correct and regular. If an examination is being made for the purposes of a suit, it ought to be equally particular and careful, and the lawyer ought to see not only that the title is good, but that it is capable of being proved. Sometimes he may be convinced by his inquiries, and yet not supplied with the means of proof. He should remember that it is one thing to satisfy himself, and another to

instrument, the legal effect of which he can only guess at. A layman would be even less likely to mislead, for he would generally abstain from the use of technical language, which, in the hands of persons who are employing it without sufficient knowledge, is always liable to express a meaning which is not in the mind of him who uses it. It is impossible to urge too strongly upon the young men who are hereafter to come to the bar, the importance of thorough preparation in the law of real estate; and it may tend to their encouragement in so doing to add, that as lands become more valuable and wealth increases, in no other branch of the law is real preparation and genuine attainment likely to be better appreciated or better rewarded.(v) There is a class of real estate questions which is peculiar to this country, and in handling which the student will not be greatly aided by the old text-books or old decisions. They are, nevertheless, questions which arise often, and which, hereafter, there will from year to year be still more frequent occasion to deal with. We refer to those which relate to the validity of sales of lands for the non-payment of the taxes assessed upon them. We do not know how the lawyer, who is disposed both to labor and to think, could well be called into a more tempting field than the examination of these questions. Large as has been the number of decisions regarding these sales, and varied as have been the questions passed upon, almost every new case that now arises presents some unusual combination of facts and circumstances which enables some new and perhaps difficult question to be raised. The difficulties are enhanced by the different views which different classes of minds are disposed to take of this species of title, and of the maxims of law by which they should be governed. If we look only to the interest of the state, and regard the collection of the tax at all hazards as the prime object to be attained, we may be disposed to press governmental power to an extreme which would deprive the individual of the benefit of those principles which have been shields for the protection of private property from before the time of Magna Charta. If, on the other hand, we look mainly to the interest of the individual, bearing in mind the great variety of causes which prevent the prompt payment of taxes-causes most often operating in the cases of minors and other persons incapable or unaccustomed to business, and remembering also the merely nominal price usually paid for lands at tax sales, we may be disposed to look upon these sales as a species of state robbery, to disappoint and defeat which, the courts should be vigilant to seize upon every reasonable supply legal evidence which can be laid before a jury. The memorandum of his investigations which he makes, as they progress, ought to give full information, not only for his own present use, but for the purposes of a trial if any should be had, or for the information of any subsequent purchaser from his client who may have occasion to go over the same ground. A lawyer is inexcusable who trusts the results of such investigations to memory alone.

These few hints will suffice to show how utterly insufficient and misleading are the ordinary abstracts of title upon which so many purchasers rely; how impossible it is that the records should give completely the information regarding the true state of titles, and how important that one who would examine titles should not only have some knowledge of law, but should make his investigations with his mind awake to all the numerous and diversified circumstances which may affect the title, even in the cases which upon the surface appear the simplest. And this note is inserted, not as indicating all the points to be borne in mind in these cases, but as illustrating the necessity of caution and thoughtful vigilance.

(v) Mr. Williams's little work on Real Property is an admirable assistant to the student, and an agreeable introduction to the Digest of Cruise. Our appreciation of Mr. Washburn's Treatise is shown by the frequent references to it in the following work. No book is more reliable; and the same may be said of the treatise by the same author on Easements. Jarman on Wills, is the best English work on that subject at the present time, but is nearly superseded in this country by the treatise of Judge Redfield.

pretext. These diverse views find able representatives in the legal profession, who press them upon all occasions; but the lawyer who is ready to accept them as extreme views, and to examine tax titles with the same unbiased mind which he would bring to the consideration of a mortgage or of a conveyance by bargain and sale, will not fail to find that there is ample opportunity for the display of legal ingenuity and acumen, and for the satisfactory application of fundamental legal maxims as the new and peculiar circumstances, which these cases so often exhibit, present themselves. The thoughtful lawyer cannot doubt that the old and well-settled principles of law are to be applied in these as in all other cases, nor that they are sufficient, if rightly applied, for the protection alike of the interest of the state and of the individual rights of the citizen; and if he enters upon his investigations with these points conceded in his own mind, much of the difficulty supposed to be inseparable from this species of conveyance will disappear, as he comes fully prepared to encounter it. The maxims of individual right are all limited, restrained and qualified by others which regard public duty and state necessity; each and all, when properly understood, supply light for the guidance of the lawyer in his examination of the numerous and often informal and imperfect records which constitute the evidences of title in these cases, and if he possesses the necessary industry and perseverance to make a complete and careful examination of each case in which his services may be required, the questions of law involved will not often fail of a satisfactory solution under his intelligent and persevering attempts to master them. (w)

If the law of real estate proves generally unattractive, criminal law, on the other hand, is likely to excite the imagination and enlist the interest of the student, who will look forward to its practice as the field of his most striking and inspiring triumphs. Yet as these triumphs are popularly supposed to be achieved mainly by the power of eloquence, and by appeals to the sympathies

(w) To illustrate the manner in which the principles of law which are applicable to these cases affect and qualify each other, the following may be mentioned:

That the state has an undoubted right to compel every species of property within its limits to sustain its proper proportion of the burden of supporting the government, and to that end, if necessary, to divest the owner's title by a public sale.

That the owner has an equal right to have the proceedings for levying a tax upon his property prescribed in advance by law, so that he may understand what is his duty regarding its payment, and how he may comply with that duty and he is not to be dispossessed of his property until he is in default for failure to perform his obligations to the state.

That statutes for the assessment and collection of taxes are to be construed like other statutes; not with a strictness that shall defeat their purpose, nor with a liberality that shall enlarge their terms; the object to be attained being to ascertain the meaning of the legislature in their several provisions, and then to give them effect.

That whatever securities the legislature has provided for the protection of the interest of the taxpayer, are to be understood as thrown around his property to prevent its being appropriated improperly, and they therefore constitute walls of protection which the other departments of the government cannot throw down or leap over.

That the letter of the law is not to be regarded rather than its spirit: and as a strict and literal compliance with provisions which are unimportant to the individual assessed is extremely Improbable in proceedings of this description, where the steps to be taken are numerous and the persons who are to take them generally unlearned in the law, the legislature, it is to be assumed, did not intend to make such literal compliance a condition precedent to the collection of the public revenue, and the immaterial variations may be disregarded or cured retrospectively.

Other rules might be specified, but it is not important to our present purpose; the chief difficulty in these cases being after all in the proper application of these, and in determining what regulations of statute are to be regarded as directory, and what, being prescribed for the protection of the rights of the citizen, are to be treated as imperative. Mr. Blackwell's Treatise on Tax Titles is a very useful one, to both the student and the practicing lawyer.

and the passions of men rather than by the force of dry legal logic, or the careful mastery of the rules of law, the embryo advocate needs to guard his inclinations carefully, lest he may find himself in his preparation relying too exclusively upon showy attainments, and neglecting that solid foundation in the law without which the most shining natural abilities, and the most careful and elaborate training in elocution, will at times prove of no avail.

If the leading principles of criminal law are plain and easily mastered, if the pleadings are simple and the practice without complication, there is nevertheless a continual possibility that some unexpected and difficult question may arise for which the works on criminal law state no precedent and furnish no solution. What criminal lawyer in large practice can tell whether the fate of his client in the next case in which his services may be demanded is to turn upon mere questions of fact, or on the other hand to depend upon some important principle of constitutional right, some difficult question regarding the right to property, or some point in medical jurisprudence, involving not only some. knowledge of medicine and of physiology, but an intimate acquaintance, also, with human nature, and with the peculiarities and vagaries of the human mind?

Lord Erskine, in building up that splendid reputation as an advocate of which he was justly so proud, did not shrink from any labor or spare himself any exertion which could make more complete and ample his ability to grapple with the questions of law and of fact which he could anticipate as likely to arise in the cases he was to undertake. At this distance of time, and when it cannot be expected that our feelings should be enlisted to any considerable degree, in the questions he discussed, we read his speeches with delight, and study them as models of forensic eloquence. But we discover that they are very far from being mere appeals to the sympathies, the feelings or the passions of the men to whom they were addressed. On the contrary they were pervaded with such knowledge of the laws and constitution of his country, and he discussed the questions involved with such fullness and readiness of information, and such force of logic, that our wonder is as we read them, not that their effect was so powerful and their force of conviction so great, but that, in cases where he made the right appear so clear, it should ever have been seriously contested. We take up, for instance, the trial of Hardy, and note in what a masterly manner he handled the successive questions as they arose, and we are irresistibly impressed that the great advocate was an orator in the highest and best sense, whose aim was to come to the discussion of such great causes with his mind well stored with all the materials of attack and defense which study or labor could gather, and who so far accomplished the end sought, that he was enabled to teach a government then tending strongly toward despotic authority, a salutary and much needed lesson regarding the freedom of thought and freedom of discussion, and one which will never be unlearned while free institutions continue to be the heritage of the people of England. (x)

(x) Lord Campbell said of Erskine's speech in support of the right of juries in the Dean of Asaph's case, that it displayed, "beyond all comparison, the most perfect union of argument and eloquence ever exhibited in Westminster hall. So thoroughly had he mastered the subject, and so clear did he make it, that he captivated, alike, old black letter lawyers and statesmen of taste and refinement."

Quintilian, who lived in an age and under a system of forensic pleading, in which oratorical powers, without solid attainments, might be made much more available than now under our sys