If land is conveyed to a husband and wife and there are no words used to determine the estate created, they will hold the property as tenants by the entirety, but it may be specified in such deeds that the grantees shall hold the land in a different manner and have a different interest therein. Richards v. Richards, 60 App. 34, 110 N. E. 103.

If a joint judgment is recovered against a husband and wife upon a claim for which both are personally liable, land owned by them as tenants by the entirety may be sold on execution to satisfy such judgment. Sharpe v. Baker, 51 App. 547, 96 N. E. 627, 99 N. E. 44.

See note to section 3953.

3957. Deed and record thereof.

An agreement executed contemporaneously with a deed of conveyance, providing for the cancellation of the deed and a reconveyance of the property, is not a conveyance within the meaning of the statute requiring deeds of conveyance to be recorded. Raub v. Lemon, 61 App. 59, 108 N. E. 631.

See note to section 3947.

3958. Form of warranty deed.

If several tenants in common of land join in a general warranty deed conveying the land, a judgment against one of the grantors which is a lien on his interest in the land will be included in the warranty, and will be a breach of the covenant against incumbrances as against all of the grantors. Ragle v. Dedman, 50 App. 359, 98 N. E. 367.

Warranty deeds made in the form provided by statute include a covenant that the grantor is lawfully seized of the premises, has good right to convey the same, and guarantees the quiet possession thereof, that the same are free from all incumbrances, and that he will warrant and defend the title to the same against all lawful claims. Pence v. Rhonemus, 58 App. 268, 108 N. E. 129.

Covenants of warranty run with the land, and subsequent purchasers may sue on covenants that are contained in deeds made by grantors under which they hold the land, although such purchasers acquire title by quitclaim deeds. Pence v. Rhonemus, 58 App. 268, 108 N. E. 129.

3960. Unnecessary words.

In granting a right of way which will become appurtenant to the land, it is not necessary to use the words "heirs and assigns." Cleveland etc. R. Co. v. Griswold, 51 App. 497, 97 N. E. 1030.

[Acts 1921, p. 845. In force May 31, 1921.]

3962. Time of recording.-16. Every conveyance or mortgage of lands or of any interest therein, and every lease for more than three years shall be recorded in the recorder's office of the county where such lands shall be situated; and every conveyance mortgage or lease shall take priority according to the time of the filing thereof, and such conveyance mortgage or lease shall be fraudulent and void as against any subsequent purchaser, lessee or mortgagee in good faith and for a valuable consideration, having his deed, mortgage or lease first recorded. No mortgage shall be recorded unless the full name and postoffice address of the mortgagee and the bonafide owner

thereof shall appear on the face thereof, and such name and address shall be recorded as a part of such mortgage.

This section amends section 3962 Revision of 1914.

The statute requiring deeds and mortgages to be recorded within a limited time does not apply to the general creditors of a grantor or mortgagor. Tansel v. Smith, 49 App. 263, 93 N. E. 548, 94 N. E. 890.

An unrecorded conveyance of an interest in real estate is valid as against every person except subsequent purchasers, lessees and mortgagees in good faith and for a valuable consideration. Larrance v. Lewis, 51 App. 1, 98 N. E. 892. If a person obtains a deed to land and fails to have it recorded within the time fixed by statute, and the grantor devises the land to another person, who, with the knowledge and consent of the grantee in the deed mortgages the land, such deed will be void as to the mortgagee. Guynn v. Wabash County Loan etc. Co., 53 App. 391, 101 N. E. 738.

Grantees in quitclaim deeds may be good faith purchasers, but the burden is upon them to show the fact in order that they will have a preference over other purchasers. Sullenger v. Baecher, 55 App. 365, 101 N. E. 517, 102 N. E. 380.

Purchasers of land under foreclosure proceedings for delinquent taxes will hold the land as against deeds for the land that were not recorded within the time fixed by law. Bliss v. Gallagher, 60 App. 454, 109 N. E. 215.

Deeds of trust should be recorded in the deed records, and the recording of such a deed in the miscellaneous records is not constructive notice of its existence. Sinclair v. Gunzenhauser, 179 Ind. 78, 98 N. E. 37, 100 N. E. 376.

A husband and wife as grantees by the entirety who failed to have their deed recorded as required by this section, with knowledge that the grantor has mortgaged the land, and that the mortgagees were lending money on such mortgage security in good faith, are estopped to assert the validity of their deed as against such mortgagees, since married women are bound by estoppel in pais by the provisions of section 7853. Cressler v. Brewer, 186 Ind. 185, 114 N. E. 449. See note to section 3947.

3963. Leases of lands, recording. See note to section 3947.

3965. Acknowledgment or proof.

Any conveyance or instrument in writing to be entitled to be recorded must be acknowledged by the grantor or person executing the instrument, and any such conveyance or instrument recorded without being so acknowledged is not constructive notice to any one. Bledsoe v. Ross, 59 App. 609, 109 N. E. 53. See note to sections 478, 3947.

[Acts 1919, p. 68. In force May 15, 1919.]

3965a. Acknowledgments, prosecuting attorneys, recording.—1. All prosecuting attorneys of the State of Indiana may take acknowledgments to deeds, or other instruments in writing, administer oaths, protest notes and checks, take the deposition of a witness, to take and certify affidavits and depositions, and perform any duty now conferred upon a notary public by the statutes of Indiana. And acknowledgments to deeds or other instruments taken by any such prosecuting attorney shall entitle such deeds or other instruments to be recorded the same as though acknowledged before a notary public.

3965b. Seal.-2. No prosecuting attorney shall be authorized to perform any of the duties mentioned in section 1 hereof until he shall have procured such a seal as will stamp upon paper a distinct impression in words or letters sufficiently indicating his official character to which may be added such other device as he may choose. All acts not attested by such seal shall be void.

3965c. Expiration, jurisdiction.-3. It shall be the duty of every prosecuting attorney performing any of the acts as set forth in this act, at the time of signing any certificate of acknowledgment of a deed, mortgage, or other instrument, or any jurat or other official document, to append to such certificate a true statement of the date of the expiration of his commission as such prosecuting attorney. The jurisdiction of any such prosecuting attorney to perform the auties herein mentioned shall be coextensive with the State of Indiana.

3965d. Fees.-4. Any such prosecuting attorney performing any of the acts or duties hereunder shall be entitled to the same fees as those charged by notaries public, and where any act by a notary public would be a violation of the law, it shall likewise be a violation of the law if committed by a prosecuting attorney in the performance of any of the duties or acts authorized hereunder.

See section 9410 Revised Statutes of 1914.

Section 5 of the above act provides for the repeal of all laws and parts of laws in conflict therewith.

[Acts 1919, p. 16. In force February 15, 1919.]

3965e. Acts of notaries public legalized.-1. All acts of notaries public who have acknowledged the execution of deeds of conveyance, mortgages and any other written instruments entitled by law to be recorded in the office of the recorder of any county by virtue of having been acknowledged by and before notaries public, and that all acts of notaries public who have acknowledged the execution of any written instrument entitled, or required to be acknowledged by and before notaries public, whether entitled to be recorded or not; and which acts of such notaries public would be valid except for the fact that such notary public was, at the time of taking such acknowledgment, an officer, stockholder or employe of a corporation which was a party to the instrument or transaction, for and in connection with which such acknowledgment was taken, or except for the fact that the commission of such notary public, at the time of taking such acknowledgment, had expired, and which acknowledgment was taken and accepted by all parties to such instrument in good faith and intent, not realizing that such commission had expired, are hereby legalized and made valid; and all such deeds of conveyance, mortgages, and other written instruments and the records thereof are hereby legalized and made valid,

and of the same force and effect as they would have been had such notaries public before whom such acknowledgments were taken been in no manner interested or employed in or connected with any such corporation or whose commission had not in fact expired.

Section 2 of the above act provides that the act be in force and effect from and after its passage.

[Acts 1917, p. 160. In force May 31, 1917.]

3970. Acknowledgment in foreign country.-1. That conveyances, mortgages and other instruments in writing, of a character to admit them to record under the recording laws of this state, when executed in a foreign country, shall be acknowledged by the grantor or person executing the same, and proved before any diplomatic or consular officer of the United States duly accredited or before any officer of such country, who, by the laws thereof, is authorized to take acknowledgments or proof of conveyances; and if such acknowledgment or proof is in the English language, and attested by the official seal of such officer, it shall be sufficient to admit such instrument to record; but if in some other language or not attested by such official seal, then such instrument must be accompanied by a certificate of an officer of the United States, as aforesaid, to the effect that it is duly executed according to the laws of such foreign country; that the officer certify. ing to the acknowledgment or proof had legal authority so to do, and the meaning of his certificate, if the same is made in a foreign language.

This act amends section 3970 of the Revised Statutes of 1914.

3979. Disaffirmance by infant wife.

Where upon reaching majority plaintiff filed a complaint for rescission of her deed made in infancy alleging no consideration, defendant was not entitled to judgment because there is no offer to repay, since this section provides that the court shall in such case decree the amount to be a lien against the land. Bilskie v. Bilskie, App., 122 N. E. 436.

3982. Form of acknowledgment.

The acknowledgment of the execution of a chattel mortgage must be in substantial compliance with the form of acknowledgments provided by statute, and if such a mortgage not properly acknowledged is recorded, the record is not notice of its existence to any person, and is not binding upon any one except the parties to the mortgage. Guyer v. Union Trust Co., 55 App. 472, 104 N. E. 82.

The entry books kept by county recorders are not parts of the records of such offices, and do not constitute notice of the contents of such records. Sinclair v. Gunzenhauser, 179 Ind. 78, 98 N. E. 37, 100 N. E. 376.

3987. Record as evidence.

See note to section 3947.

3992. Conveyances, lease.

A lease of real estate for a term of years is not a conveyance of land, but is personal estate and passes to the personal representative of the lessee on his death. Spiro v. Robertson, 57 App. 229, 106 N. E. 726.

3994. Estates tail abolished.

Estates tail are abolished by statute, and what would be estates tail under the common law are estates in fee simple, and the use of the word "heirs" in a deed are deemed words of limitation and not of purchase, and the grantee takes a fee simple estate unless there are words used which will create a different estate. Newhaus v. Brennan, 49 App. 654, 97 N. E. 938.

Under this section, a devise of an estate tail creates an estate in fee simple. Gibson v. Brown, 62 App. 640, 110 N. E. 716, 112 N. E. 894.

3998. Power of alienation.

A devise which prohibits the devisee from alienating the land for a period of ten years was held to violate this section of the statute relating to perpetuities. Reeder v. Antrim, 64 App. 83, 110 N. E. 568, 112 N. E. 551.

SEC.

ARTICLE 2.-BY HUSBAND OR WIFE OF INSANE PERSON.

4008. Joinder in guardian or commis

sioner's deed.

[Acts 1919, p. 515. In force March 13, 1919.]

4008. Joinder in guardian or commissioner's deed.-2. Whenever, hereafter, the real estate of a person insane or of unsound mind, or incapable of managing his or her estate or business affairs because of old age, infirmities, improvidence, or being a spendthrift, such person having a husband or a wife who is of sound mind, shall be sold, under a valid order of court, by any guardian, commissioner or other officer of court, the husband or wife of such person may join in such deed or may make his or her own separate deed to the grantee named in the deed of such guardian, commissioner or other officer, and the execution of a deed in either form shall have the same effect as would the joint deed of the husband and wife both being at the time of sound mind and competent to convey real estate.

This section amends section 4008 Revision of 1914.

Section 2 of the above act provides that it be in force and effect from and after its passage.

SEC.

ARTICLE 3.-BY ALIENS.

4010. Aliens may hold and convey.

4010. Aliens may hold and convey.

The right conferred upon aliens to acquire, hold, convey, devise and mortgage real estate, does not enable aliens to transmit title to such property by descent to their heirs. Donaldson v. State ex rel., 182 Ind. 615, 101 N. E. 485.