The words "real property" are coextensive with lands, tenements and hereditaments.11

An officer's certificate of the grantor's acknowledgment of the execution of a deed filed for record, is a sufficient compliance with the requirement of attestation by witnesses to the grantor's signature by mark.12

Sec. 395. Contract valid against third persons, when.

Except as hereinafter provided, no acknowledgment or recording will be necessary to the validity of any deed, mortgage or contract relating to real estate as between the parties thereto; but no deed, mortgage, contract, bond, lease or other instrument relating to real estate, other than a lease for a period not exceeding one year and accompanied by actual possession, will be valid as against third persons unless acknowledged and recorded as herein provided; except actual notice to such third persons, shall be equivalent to due acknowledgment and recording.13

Sec. 396. What conveyances deemed mortgages.

Every instrument purporting to be an absolute or qualified conveyance of real estate or any interest therein, but intended to be defeasible or as security for the payment of money, shall be deemed a mortgage and must be recorded and foreclosed as such.14

Sec. 397. Separate instruments deemed parts of each other.

Every instrument explanatory of any deed or other writing purporting to be a conveyance, but intended to be defeasible or as security for the payment of money, will be deemed a

11 Snyder, 2,965; Wilson, 2,808. 12 Campbell v. Hart, 122 Pac.

13 Snyder, 1,195; Wilson, 888. 14 Snyder, 1,196; Wilson, 889.

(Okla.) 127.

part thereof, and must be filed and recorded therewith; and unless such instruments are so filed and recorded together, they and each of them will have no other effect than an unrecorded mortgage, and the recording of the principal instrument will secure no rights to the holder thereof.15

Sec. 398. Innocent purchasers protected, when.

Any person purchasing or taking any security against real estate in good faith and without notice from one holding under an instrument purporting to be a conveyance, but intended as security for the payment of money, and which instrument has been duly recorded without any other instrument explanatory thereof, will be protected to the extent of the purchase price paid or actual outlay occasioned, with lawful interest, against all persons except those in actual possession at the time of such purchase or outlay.16

Sec. 399. Conveyance deemed an assignment, when.

Any conveyance other than as above provided, by one held under an instrument purporting to be a conveyance, but intended as security, will be deemed and treated as an assignment and transfer of the mortgage rights of an indebtedness due the maker thereof.17

Sec. 400. Quitclaim deed-What is conveyed thereby.

A quitclaim deed, made in substantial compliance with the provisions of this chapter, will convey all the right, title and interest of the maker thereof in and to the premises therein described.1

18

15 Snyder, 1,197; Wilson, 890. 16 Snyder, 798; Wilson, 891. 17 Snyder, 1,199; Wilson, 892. 18 Snyder, 1,201; Wilson, 894. Where the title of a party to real estate is evidenced by quitclaim deed and the adverse claimant

claims under a sheriff's deed or upon a judgment and execution against a debtor, who it is not shown ever had a title, either in law or equity, the title conveyed by quitclaim deed will be held to be

Sec. 401. Warranty deed-What is conveyed thereby.

A warranty deed, made in substantial compliance with the provisions of this chapter, will convey to the grantee, his heirs or assigns, the whole interest of the grantor in the premises described, and will be deemed a covenant on the part of the grantor, that at the time of the making of the deed he is legally seized of the indefeasible estate in fee simple of the premises and has good right and full power to convey the same; that the same are clear of all incumbrances and liens, and that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession thereof, and will defend the title thereto against all persons who may lawfully claim the same and the covenants and warranty will be obligatory and binding upon any such grantor, his heirs and personal representatives, as if written at length in such deed. 19

To sustain an action for the breach of a covenant for quiet enjoyment in a lease, it is necessary for the plaintiff to show that he has been prevented from taking possession of the leased premises, or that his quiet enjoyment has been hindered or disturbed by the lessor, or some person deriving their right or title through him, or from a paramount title; a hindrance or disturbance by a mere intruder is not sufficient.20

Covenants of seizin and good right to convey are synonymous, and, if broken at all, are broken when made, and an actual eviction is unnecessary to consummate the breach.

In an action for breach of the covenants of seizin and good right to convey, an eviction need not be alleged; but it is sufficient in charging a breach to negative the words of the covenant generally.21

paramount. Mosier v. Monson, 13 Okla. 41, 74 Pac. 905.

19 Snyder, 1,202; Wilson, 895.

20 Brown V. International, etc., 29 Okla. 341, 116 Pac. 799.

21 Faller V. Davis, 118 Pac. (Okla.) 382.

Sec. 402. Power of attorney-How executed-Where filed. A power of attorney in fact for the conveyance of real estate or any conveyance thereunder, or for the execution or release of any mortgage therefor, must be executed, acknowledged and recorded in the manner required by this chapter for the execution, acknowledgment and recording of deeds and mortgages, and must be recorded in the county where the land is situated, and no deed, mortgage or release of mortgage executed by an attorney in fact, will be received for record or recorded until the power under which the same is executed has been duly filed for record in the same office; and the recording of any deed, mortgage or release of mortgage will be of no effect for any purposes until the power under which it is executed has been duly filed for record in the same office.22

Sec. 403. What grantor is affected where land recovered by action-Grantors to be notified.

In all cases where there is a recovery of land, or any interest therein, adverse to any warranty deed thereto, the judgment by which such recovery is had will not be effective or become the basis of an action, against previous grantors other than those who are parties thereto, or have been notified in writing of the pendency thereof twenty days before such judgment is entered.

In all cases where an action is brought against a grantee to recover real estate conveyed to him by warranty deed, he is required to notify the grantor, or person bound by the warranty, that such suit has been brought, at least twenty days before the day of trial, which notice must be in writing, and request such grantor or other person to defend against such action; and in case of failure to give such notice there will be no further liability upon such war

22 Snyder, 1,203; Wilson, 896; Wilson v. Wood, 10 Okla. 279, 61 Pac. 1,045.

ranty, except when it is clearly shown that it was impossible to make service of such notice.2 28

Sec. 404. Who may recover on warranty-Attorneys' fees. Where any grantor applies in any action to defend his warranty or fails to appear after due notice, the court must determine all the rights of all the parties, and in case the recovery is adverse to the warranty, the warrantee shall recover of the warrantor the price of the land paid for the conveyance at the time of the warranty, the value of all improvements lost, if any, and all sums necessarily expended, including reasonable attorneys' fees and interest at the rate of ten per cent. per annum on all sums so paid at the time of payment.24

Sec. 405.

Procedure when warrantor fails to defend action. If a warrantor, or other person bound by a warranty, fails to appear and defend after due notice, as above provided, the warrantee may defend the action and recover in a separate suit all sums expended the same as he might do in the same suit, as provided in this chapter.25

Sec. 406. What instruments entitled to record.

No deed, mortgage or other instrument affecting the real estate will be received for record or recorded unless executed and acknowledged in substantial compliance with the provisions of this chapter, and the recording of any such instrument not so executed and acknowledged will not be effective for any purpose.2

26

Sec. 407. Duty of register of deeds when instrument presented for filing.

The register of deeds is required by law, whenever an instrument is presented to him for record, to immediately note

23 Snyder, 1,204 and 1,205; Wil

son, 897 and 898.

24 Snyder, 1,206; Wilson, 899.

25 Snyder, 1,207; Wilson, 900. 20 Snyder, 1,208; Wilson, 901.