The proceedings on the assessment and collection of taxes are foreign from the subject of this treatise. It is enough to know that the land tax creates a lien upon the real estate so taxed; and that an application to certain officers, the collector, supervisor of the town, county treasurer, or the comptroller, as the case may be, the extent of that lien may be ascertained, and the amount discharged.

A separate and independent provision for the sale of lands for taxes exists in the city and county of New York, under the direction of officers of the local government. An application to the comptroller of the city will probably, in most cases, afford the requisite evidence of the state of the premises sought to be bought or sold, with respect to taxes. (1 R. S. 967 et seq. 5th ed.) It is presumed that in most of the cities and in many of the villages of the state, there are local laws of taxation and assessment, affecting the real estate within their bounds. A party dealing with lands so situated can generally ascertain, without difficulty, from the local officers, whether any portion of the real estate is incumbered by taxes or assessments, and the extent thereof. It will not be attempted to collect a digest of these local statutes. Many of them are changed, from time to time, by the legislature.

4. In addition to the general liens which have been adverted to, lands are subject to specific liens created by the owner, by mortgage, either for the payment of money, or for the performance of covenants. Mortgages, like judgments, may be taken to secure future advances; and the same principles are applicable to them as to judgments taken in the same way. The cases which we have been considering in relation to judgments are applicable to mortgages, and need not be repeated, (Averill v. Louckes, 6 Barb. 19, 470.) We have treated, in a former part of this work, of mortgages in general, of the recording thereof, and of the priority amongst successive mortgages. (See ante, p. 119.) The statute has pointed out a convenient way for the discharge of the lien of a mortgage, without any reconveyance by the mortgagee to the mortgagor. With us a mortgage is treated as security for the payment of a debt, or the fulfillment of an obligation. The mortgagor, until foreclosure, is, for most substantial purposes, treated as the owner of the land, as to all persons but the mortgagee. (Runyan v. Mersereau, 11 John. 534. Hitchcock v. Harrington, 6 id. 290. Coles v. Coles, 15 id. 319.) If, upon search, the premises attempted to

be sold are incumbered by mortgage, the purchaser will naturally insist not only that the mortgage shall be paid off, but that it shall be discharged of record. The statute provides upon what evidence the clerk in whose office the mortgage is recorded may make this entry. It is a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified in the manner therein prescribed, to entitle conveyances to be recorded, specifying that such mortgage has been paid, or otherwise satisfied and discharged. This certificate, and the proof or acknowledgment thereof, must be recorded at full length; and a reference must be made to the book and page containing such record, in the minute of the discharge of such mortgage, made by the officer upon the record thereof. (1 R. S. 761, §§ 28, 29. 3 R. S. 57, 5th ed.) If the mortgage has been assigned, the assignee, it has been seen, is the party to give the satisfaction piece. The clerk cannot know, but from the assignment in writing itself, that the assignee has authority to grant the discharge; and hence it is desirable, when a bond and mortgage are assigned, that it should be done by a written assignment, proved or acknowledged in the same manner as deeds are required to be proved or acknowledged in order to be recorded. The record of this assignment will be the authority for the clerk to carry into effect the certificate of discharge by the assignee. Though this record is not constructive notice to a mortgagor, or his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee, it is doubtless notice as against persons claiming by virtue of some subsequent assignment or conveyance from the mortgagee, or assignor of the mortgage, or his representatives; (1 R. S. 763, § 41. The New York Life Ins. and Trust Co. v. Smith, 2 Barb. Ch. 84;) and it is notice to the clerk with whom the mortgage is recorded.

In case of the death of the mortgagee the power to give the satisfaction piece, on payment, is vested in his executors or administrators. A certificate from the surrogate's office of the county in which probate of the will, or letters of administration have been granted, showing that the party to whom it is given is the duly qualified executor or administrator of the estate of the deceased, will furnish to the clerk of the county in which the mortgage is registered the requisite evidence of such appointment; and authorize him to act upon it accordingly.

The foregoing remarks have been made upon the supposition,

that the title to the premises intended to be sold or incumbered by mortgage, have only passed through a single individual after being granted by the government. This furnishes but a small part of the cases which will arise in daily practice in the conveyancer's office. In most cases, the title will have passed through various individuals, by different conveyances. Safety, therefore, will require that a similar process of search for liens created or occasioned by the successive owners, should be pursued. The abstract will contain the deduction of title from a former owner sufficiently remote from the present period to induce the belief, that there are no subsisting liens of an earlier date; and the search for liens and incumbrances will be conducted with reference to the subsequent successive owners. In this mode alone can the premises be shown to be entirely unincumbered.

SECTION III.

Of the Examination of a Title derived by Descent, and by Devise.

1. By descent. If the party intending to sell or mortgage the premises in question has derived title thereto by descent from his ancestor, in addition to the inquiry whether the property has not been incumbered by him, a variety of other questions will arise and have to be investigated. These relate both to the title of the ancestor, and the right of the vendor by descent.

In making the investigation of this subject the counsel will bear in mind the law of descent, dower, wills, escheat, statute of limitations, both as they existed prior to the revision in 1830, and as they now exist. These subjects have been sufficiently adverted to under appropriate heads, and need not be repeated.

The same line of inquiry with respect to the ancestor will have to be pursued as was indicated in the last section. It may be that the purchase deed of the ancestor is sufficiently remote in point of time to be the foundation of the commencement of the examination. If, for example, he, or those under whom he claims, had been in the peaceable and uninterrupted occupation of the premises, as owner, for a period of twenty years or upwards before and at the time of his death, without any controversy as to his title; such deed followed up by continued possession, in subordination to that title, furnishes a strong presumption of its goodness. This presumption is said to be greatly strengthened if there have been frequent changes

of ownership, without any adverse claim. (1 Prest. on Abs. 17.) Whether it will be necessary to abstract ancient deeds, which the vendor may have relating to the title of his vendor, or whether it will be sufficient to rest upon the purchase deed alone, and to examine the title from that period, has sometimes been made a question.

To abstract all the deeds, would in many cases invite tedious inquiries and long discussions, which would answer no useful purpose to the purchaser. Mr. Preston thinks that a discretion ought to be exercised on this point.

While no substantial defect in the title ought to be concealed, by withholding the knowledge of the deeds, which may give a different complexion to it, so, on the other hand, it cannot be expected that, on mere matters of form, the vendor should furnish the means of enabling a reluctant, or over cautious purchaser, or those professional men who are more nice than wise, to treat the title as difficult or doubtful; when no one, acting with a sound discretion, would view it as attended with either doubt or difficulty. (Id. 18.)

If the purchase deed under which the ancestor held is sufficiently remote to exclude the presumption of any adverse claim, it will be sufficient to examine as to incumbrances created or suffered by the ancestor, or any of those under whom he claims, in the intermediate time.

It will be important to inquire whether the ancestor left a widow who has any claim of dower, and if so, whether it has been released or discharged. It will also be necessary to ascertain, in case there has been in the meantime, frequent change of ownership of the property, whether the successive vendors were married or not, and if married, whether their wives united in the conveyance in such form and by such private acknowledgement, apart from their husbands, as to discharge their contingent right of dower to the premises. (Gillet v. Stanley, 1 Hill, 121.) What is needful to be done to effect this object, has been shown in another part of this treatise.

Assuming that the vendor claims by descent from his ancestor, it is important to know that he is a legitimate heir of the former owner. This often involves an inquiry as to the validity of the marriage of his parents. By the common law of England and this country, marriage is considered in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to

ecclesiastical and religious scrutiny. In the catholic and some of the protestant countries of Europe, it is treated as a sacrament. (Story's Conf. Laws, § 108.) The general principle is, that between persons sui juris, marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere. If invalid there, it is equally invalid everywhere. (Id. § 113.) These principles, with their qualifications, will be found stated, with more or less fullness, by all the elementary writers.

The existence of a marriage, except in actions for adultery and indictments for bigamy, is sufficiently proved by presumptive evidence of cohabitation, or even by general reputation. (Doe v. Fleming, 4 Bing. 266. Birt v. Barlow, Doug. 171. Morris v. Miller, 4 Burr. 2057.)

How far a claim to dower may be affected by divorce, by jointure, or a testamentary provision in her favor, and her election, has been sufficiently shown in a previous chapter. (Part 1, ch. 2, § 3.)

If the vendor is shown to be a son, for example, of the intestate, it will be important to inquire, whether he had any brothers or sisters who would share with him the inheritance; and whether they have conveyed their share of the estate to the vendor, by proper instruments of conveyance, duly executed and acknowledged or proved.

It will also be important to inquire, whether there are any outstanding terms for years, created by any of the prior parties, and which are still subsisting. To make a good title in fee, they should be extinguished by a valid surrender by the tenant, unless the purchaser is willing to take the title with that incumbrance.

2. If the title of the vendor was derived by devise, another class of questions arise. In addition to showing the unincumbered nature of the estate of the devisor at the time of his death, which will be done by some of the modes already pointed out, it will be important to inquire as to the valid execution of the will to pass real estate, whether it has been proved as a will of real estate, and recorded in the proper surrogate's court; whether the testator has devised to the vendor the fee simple, or what other estate in the property in question; whether, by the terms of the will, the testator's debts and legacies, or either of them, have been charged upon the real estate; and whether there is still any outstanding claim of dower, affecting the premises.

We have seen, under the proper head, that a will is revocable,