Uniting materials and workmanship. Separable materials. Materials of several owners. That part is to be deemed the principal to which the other has been united only for the use, ornament or completion of the former, unless the latter is the more valua ble and has been united without the knowledge of its owner, in which case he may require it to be separated and returned to him, although some injury should result to the thing to which it has been united. If neither can be considered the principal, within the foregoing rule, the more valuable, or, if the values are nearly equal, the more considerable in bulk, is to be deemed the principal part. § 390. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workmanship, unless the value of the workmanship exceeds the value of the thing made, in which case the thing belongs to the maker, on reimbursing the value of the materials. § 391. Where a person has made use of materials, which in part belong to him and in part to another, in order to form a thing of a new description, without having destroyed any of the materials, but in such a way that they cannot be separated without inconvenience, the thing formed is common to both proprietors; in proportion, as respects the one, of the materials belonging to him, and as respects the other, of the materials belonging to him, and the price of his workmanship. § 392. When a thing has been formed by the admixture of several materials of different owners, and neither can be considered the principal substance, if the materials can be separated, the owner without whose consent the admixture was made, may require a separation. If they cannot be separated without inconvenience, the owners acquire the thing in common, in proportion to the quantity, quality, and value of their materials. If the materials of one were far superior to the others, both in quantity and value, such one may claim the thing on reimbursing to the others the value of their materials. trespassers. § 393. The foregoing sections of this article do not apply willful where a person willfully uses the materials of another without his consent; but, in such case, the product belongs to the owner of the material, if its identity can be traced. Silsbury a. McCoon, 3 N. Y., 379. § 394. In all cases where a proprietor whose material has been used without his knowledge, in order to form a product of a different description, can claim a property in such product, he has the election of demanding restitution of his material, in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. Owner may elect be tween the thing and its value. liable in §395. Persons who employ materials belonging to Wrong doer others, without their knowledge, may also be held liable damages in damages, and criminally, in proper cases. and criminally. TITLE IV. TRANSFERS. CHAPTER I. Transfers defined. II. Transfers of real property. III. Transfers of personal property. V. Fraudulent transfers. CHAPTER I. TRANSFERS DEFINED. 396. Transfer is an act between living persons, by which one conveys to another the title to property.* It may be in writing, or in certain cases without writing. A transfer by writing is also called a grant or conveyance. The obligations of the parties to a transfer for consideration, or to a contract of hiring, are regulated by the chapter on Sales, on Exchange, and on Hiring. Transfers in trust for the benefit of creditors are regulated by the chapter on Debtor and Creditor. Requisites to convey certain interests in lands. Grants in fee, or of freeholds, how execu to take effect. CHAPTER II. TRANSFERS OF REAL PROPERTY. SECTION 397. Requisites to convey certain interests in lands. 398. Grants in fee, or of freeholds, how executed; when to take effect. 399. Livery of seisin. 400. Form of grant. 401. Transfer of incidents and appurtenances; rents. 402. Delivery necessary. 403. Delivery to grantee is necessarily absolute. 404. Delivery in escrow. 405. Surrendering or canceling grant. 406. Constructive delivery. 407. Covenants in conveyances. 408. Lineal and collateral warranties. 409. Certain deeds declared grants. 410. All the estate of the grantor passes. 411. No greater estate passes. 412. How far conclusive on purchasers. 413. Conveyances by tenants for life or for years. 414. Attornment by tenant, when unnecessary. Liabilities of tenant. 415. Conveyance of land adversely possessed. § 397. No interest in real property, other than a term not exceeding one year, and no trust or power, relating thereto, can be created, transferred, surrendered or declared, except by operation of law, or by a conveyance in writing, subscribed by the party disposing of the same, or by his agent, thereunto authorized by writing. This section does not affect the power of a testator in the disposition of his real property by will; nor prevent a trust from arising, or being extinguished, by implication or operation of law; nor does it abridge the power of the courts to compel specific performance of agreements in cases of part performance. 1 R. S., 134, §§ 6, 7, 10. § 398. Every grant in fee, or of a freehold estate, must be subscribed and sealed by the grantor or his agent; and if not duly acknowledged, previous to its delivery, according to the provisions of chapter IV of this title, its execution must be attested by at least one witness; or if not so attested, it has no effect as against a subsequent purchaser or incumbrancer, or those claiming under him, until so acknowledged. 1 R. S., 138, § 137; Wood a. Chapin, 13 N. Y., 509. The words "and delivery" arc omitted after "execution." seisin. § 399. The mode of conveying lands by feoffment, with Livery of livery of seisin, is abolished. 1 R. S., 738, § 136. grant. § 400. A grant or conveyance of real property may be, Form of in substance, as follows: between A. B., of . . . . . . . . ., of the first part, and C. D., of .... .......... of the second part, witnesseth: "That the party of the first part hereby grants to the party of the second part, in consideration of ... dollars, now received, all the real property situated in ... and bounded.... ...... .... "Witness the hand and seal of the party of the first part. "A. B. [SEAL.]" In England, the following form is prescribed by 8 and 9 Vic., c. 119: "This indenture, made, &c., in pursuance of an act to facilitate the conveyance of real property, between A. B. and C. D.; witnesseth: that, in consideration of ...... now paid by the said C. D. to the said A. B. (the receipt whereof is hereby by him acknowledged), he, the said A. B., doth grant unto the said C. D., his heirs and assigns forever, all that ......... In witness whereof, the said parties hereto have here- Chan. Kent (4 Com., 461) recommends the following: A form briefer still was held sufficient in Kentucky. § 401. The transfer of land, with its incidents or appurtenances, carries the incidents mentioned in sections 148 and 149. Incidents and appur Transfer of tenances. Rents may be transferred, in whole or in part, like any Rents. other thing in action, by a transfer of the whole or part of the reversion, or of the rents without the reversion. Delivery necessary. Delivery to grantee is absolute. $402. A grant takes effect, so as to vest the estate or interest intended to be conveyed, only from its delivery. 1 R. S., 738, § 138. § 403. A grant cannot be delivered to the grantee condinecessarily tionally. Delivery to him or his agent is necessarily absolute, and the instrument takes effect thereupon, discharged of any conditions on which the delivery was made. Worrall a. Munn, 5 N. Y. (1 Seld.), 229. Delivery in escrow. Surrendering or canceling grant. Construc tive delivery. § 404. A grant may be deposited by the grantor with a stranger, to be delivered by him on performance of a condition, and on delivery by the depositary, it will take effect. Clark a. Gifford, 10 Wend., 310. § 405. Redelivering a grant to the grantor, or canceling it, cannot operate to re-transfer the title. Jackson a. Anderson, 4 Wend., 474. Jackson a. Chase, 2 Johns., 84. Raynor a. Wilson, 6 Hill, 469. Nicholson a. Halsey, 1 Johns. Ch., 417. § 406. Though an instrument be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases: 1. Where the instrument is by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery;' 2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown or may be presumed ;* A voluntary conveyance or settlement takes effect upon its execution, although the grantor retains its possession, unless the contrary intention appears. 1 3 Scrugham a. Wood, 15 Wend., 545; Roosevelt a. Carow, 6 Barb., 190. Church a. Gilman, 15 Wend., 656. 3 Souverbye a. Arden, 1 Johns. Ch., 240; Bunn a. Winthrop, 1 Id., 329. Covenants in conveyancos. 407. No covenant is implied in any conveyance of real property, whether it contains special covenants or not. 1 R. S., 738, § 140. |