Reference Centre, Genealogy 101
Land Records and Family History Research
Formal systems by which land could be owned, occupied and rented have existed since time immemorial. Although record content and the title of documents vary from country to country most standard land records will be familiar to us all. A deed is a grant of title to property from one party to another whether it is referred to as being a Deed, a Grant, a Conveyance, an Acte, or a Contrat. The title has changed but the operation of all of these documents is essentially identical. Most land records will only provide basic information of an ancestor's estate i.e. whether they owned or rented their property, the area and location of the property, the value thereof, and, whether any monies were owed by the ancestor for which the property was taken as security. However, as with all other records there are exceptions and we will be addressing those exceptions throughout this lesson.
Two Forms of Early Land Tenure
As the family historian is concerned with the information to be gained from historical land records we must first review the two forms of early land tenure.
We all have some degree of familiarity with the feudal system - of land holding whereby vast tracks of land were granted by a monarch to certain of his subjects. Those subjects, in turn, portioned out plots of their land holdings to vassals in return for certain services and monetary payments. What the novice is not generally aware of are the many administrative documents created to record and monitor the business of a feudal estate and the fact that a large percentage of those documents remain extant today.
The foundations of feudalism can be seen in the German (Frankish) comitatus and the Roman precarium land system. The comitatus was a band of warriors who freely followed a chieftan in return for food, arms, and a share of any spoils realized on their adventures. The precarium system provided for temporary grants of land to be given to men in return for their services. The term feudal was derived from the Latin feudum meaning a landed estate, or group of estates, that were held together by a person in return for military service that was to be rendered at the request of the recognized owner of the land. Feudalism began to appear as an organized land system in western Europe during the mid-ninth century and continued to operate for almost four hundred years. It spread throughout Europe and eventually made its way to the British Isles where certain land holdings continued to operate on a feudal model until the beginning of the twentieth century.
Under the feudal system every action taken or failed to be taken by a resident of the estate became the subject of an entry in the estate rolls. How does this translate and relate to genealogical research? This question is probably easiest answered by looking at the functions of the various occupants of a feudal estate.
First, the holder of the estate had to receive a formal grant from the Monarch. The estate owner was also required to perform certain services, generally military in nature, and make payments to the Monarch. Here the simple act of a grant of land necessitates the creation of documents - the grant and a record of services performed and monies paid.
The lord of the estate required labour to work his land. Over time three distinct classes of vassals evolved under the feudal system - the serf, the villein, and the yeoman. Each class was required to perform duties in return for the individual rights and privileges accorded them, including each of their rights to occupy a portion of the land of the estate. Every vassal was required to pay homage to their lord. Homage was a ceremony during which the vassal pledged to be faithful to the lord, to work the land and to perform military service if called upon to so do. Following the ceremony of homage a vassal was then required to perform their fealty. Fealty was the act of swearing on the Bible to keep the faith that the vassal had pledged. Through it all the lives of the estate vassals continued along their usual course. Vassals married, had children, and eventually died. As a lord had a vested interest in the continuing efficient operation of his estate even the personal lives of his vassals became his concern. Male children provided some assurance that the vassals services would continue through the son. Marriage of a vassal or his children could both benefit or adversely affect the continued services that would be available to the lord. The death of a vassal who died without surviving male children was usually a cause of great distress to a lord. Every action, reaction, grant, performance of services, or failure thereof, payments of dues or failure to pay those dues, disputes among tenants, disputes with the lord, marriages, births, and deaths were meticulously recorded by the estate clerk in a variety of rolls. Administrative and judicial courts also developed on estates to hear and settle more contentious issues.
Although the feudal system had almost vanished by the fifteenth century serfdom was not abolished in England until the 1600s and in France until after 1789. Serfdom remained a way of life for the majority of the populations in Russia and Prussia until the late nineteenth century.
Many of the feudal rolls and court minutes survive today. The feudal land records of England are known to survive back to 1100 and, in a few instances, to earlier times. The earliest surviving English land records are known as Feet of Fines for the method by which the transfer of title was recorded.
The other early land holding system was that practiced in France and Quebec - the seigneury. On the face of it, this system appears to be feudal and has been mistakenly referred to as being feudal. Many customs and procedures are similar to those found on feudal estates. However, the grant of a new seigneury was far removed from the grant of a feudal estate. Under a feudal system after the lord took possession of his estate he was free to run that estate for the purposes and in the manner the lord saw fit. The rights and duties of a feudal lord to his Monarch were few beyond the pledge of arms, armour, men, and money, the first three of which were only required to be provided when necessary. The feudal lord was never in doubt of the security of his tenure. In other words, the feudal estate was not likely to be repossessed by the Monarch for non-performance of duties. The grant of a seigneury, however, was based upon specific rights and duties laid down by the State and were set out in the grant in minute detail. Seigneuries were only granted upon the express condition that the lands be ceded to tenants. The seigneur was bound by law to contract with his tenants in the same degree as the seigneur contracted with the State. State supervision of seigneurs was constant and all tenants, known as censitaires, enjoyed the intervention of an intendant who was assigned by the State to oversee the terms of the agreements between seigneur and State, and seigneur and censitaire.
Under this system the seigneur also paid foi et hommage to the King and that is where the similarity to a feudal system ends. An ongoing enumeration of lots ceded and rolls of censitaires and rentes and cens monies paid were also to be consistently maintained. All oak and mines found to be on the property had to be reserved for the King. A seigneur was bound to build a manor house on his portion of the property, the domaine direct. He was also to subscribe to the cost of the Church and Presbytery; to build a flour mill; and, if he had obtained judicial rights, he was bound to establish a seigneurial court and bear the cost of all court officers out of his own revenues. The seigneur was not permitted the luxury of refusing to accept any tenant. Most importantly, his lands could be repossessed by the King if he failed to cede his lands or failed in the performance of his other duties. On the positive side, a seigneur had the exclusive right to build and operate the flour mill. He could collect milling dues. He had the exclusive use of all fish and firewood found on the property. The seigneur was entitled to several honorary and real rights in relation to the Church. He was provided with a free pew in church and he and his family were named in prayers. He enjoyed the right of burial in the church proper and participated in certain church ceremonies. These are not by any means the only rights and duties of a seigneur but this list is enlightening when one considers that, again, the business of a seigneury was as meticulously administered and recorded as that of a feudal estate.
The censitaire, like the feudal vassal, was bound to his plot of land through the payment of cens, rentes, and the performance of corvees (services). Unlike the feudal vassal, however, the censitaire was able to commute his services for the payment of additional fees. The censitaires rentes and corvees were precisely stated in his contract with the seigneur. The censitaires lands were subject to special rules of inheritance and he was free to convey his lands to another tenant if he so chose the only requirement being that the new censitaire agree to pay a tax to the seigneur for the transfer of the property and further agree to continue to perform the duties of the outgoing tenant.
After that somewhat long-winded but necessary introduction to land records, we arrive at the land records that developed with the advent of the Modern Age.
Out of the mediaeval land holding systems evolved two types of real property estates - leasehold and freehold. Freehold property can be held as a fee simple estate, as a life estate, a trust, and in England subject to a Fee Tail or entail. To understand what information may be found in freehold documents it is perhaps easiest for the novice to examine the definitions of and the implications arising out of the freehold terms.
Fee Simple is the highest form of estate in land. The system of land ownership and transfer in most countries today is founded on the basis that all real property is owned solely by the Crown or State. Lands laws therefor are largely feudal in nature. Originally, all property was purchased from the Crown or State but full control over real property was not passed by the Crown or State to that first grantee. The Crown or State, even today, in most countries, maintains the right of expropriation. If an owner dies intestate and without heirs any real property owned by the deceased escheats back to the Crown or State. The mineral rights of Ontario, Quebec, and Alberta do not automatically attach to real property and have to be granted by a separate document.
Dower rights still exist in some provinces and other countries. Pursuant to dower rights a widow is entitled to a life estate in one-third of her husband's fully owned property. In England, if the property held is gavelkind the widow's life estate extends to one-half of her husband's fully owned property. In either case, she is entitled to live in part of the property or receive a portion of any rents generated by the property throughout the remainder of her life. Consequently, any married man holding property in his own name must have his wife sign off her dower rights before a title can be certified to a new purchaser. In the not-too-distant past it was not unusual for a solicitor to have to seek out an elderly widow to sign off her dower rights before a purchase transaction could be completed even though that widow may not have lived on the property for many years.
Married men residing in some provinces and in England also hold similar rights that are known as curtesy. By curtesy, a married man is entitled to an interest in any real property owned solely by the wife. In Ontario curtesy becomes operational if that wife gave birth to a live child sometime during their marriage. It does not matter if the child did not survive. Gavelkind property in England provided a man with curtesy rights whether issue was born during the marriage or not so long as he remained unmarried after the death of his wife. Unlike dower, however, curtesy is extinguished upon the wife selling the land over her sole signature or by willing those rights away from her husband. As with dower there have been instances requiring a solicitor to seek out an elderly man to sign off his curtesy rights.
Life estates can be created by grantees to relieve any inheritors from paying two sets of death duties. A life estate can be granted by Will or by Deed. A life estate is granted to one individual with the remainder i.e. after that individual's death, to pass to a third party. A life interest holder is able to sell or otherwise dispose of his or her real property. However, any new grantee must vacate the property on the death of the life estate holder.
Trusts can be entered into on behalf of a beneficiary. That beneficiary might be a minor child, an unprotected widow, an incompetent individual, a charity, or may have even been necessitated by the creation of a life estate. Trusts can be created either by the Will of an individual or by Deed registered on the title to real property.
Similar in operation to a trust, a leasehold secures interest in land for the purpose of providing income for a grantee's beneficiary.
Where to Find Land Records
Records relating to land may be found deposited in a multiplicity of archives. It is necessary to learn of the associated civil jurisdictions governing land. To illustrate it is perhaps best to draw an example from Ontario. Within the Regional Municipality of Niagara are many cities and towns. Insofar as land records are concerned, for registration purposes, the Region is further subdivided into Niagara North and Niagara South. St. Catharines, Niagara-on-the-Lake, and Beamsville all lay within Niagara North. Niagara Falls, Welland, and Fonthill lay within Niagara South. Deeds, mortgages, leases, and any other documents affecting the title of a property will be filed in the applicable regional Registry Office. Prior to the regional system the lands within the Niagara Region were operated under a township and county system. Fortunately, the location of the two land record offices that serve the Niagara Peninsula has remained relatively static over many decades. Consequently, documents affecting the title of property in the Township of Pelham were filed at Welland and documents affecting the title of property in the Township of Lincoln were filed at St. Catharines. A merger of the two Registry Offices occurred a number of years ago and now all records for both Niagara North and Niagara South are lodged at the Registry Office in St. Catharines, Ontario.
If you are researching ancestors that had emigrated to Ontario or were born in early Ontario and wish to become fully aware of all of the different types of helpful documentation that is available to you, you should consider investing in our book the Compendium of Ontario Records. This reference digest to more than 320 Ontario records spans 225 years and takes you back to the time before the creation of the Province of Ontario and details all of the various land records that are available.
Most other countries have a similar system of civil administration both current and historical. A researcher must learn of each level of authority as well as any changes of record offices that may have occurred historically. That information will then enable the researcher to determine the most appropriate archive office in which to start their search. Quite often it is necessary to search one or all of the following types of offices:
- a local court;
- a county court or records archive;
- a Provincial or State archives; and/or,
- a national archives
In Great Britain many deeds and land documents remain in the hands of solicitors and property owners as that country lacked a formal registration system until late in the twentieth century. However, many early documents have been deposited among manuscript collections in county record offices. The land transactions in many European countries were recorded and maintained by the local notaries. Some of those early records have been deposited in regional and national archives but many are still to be found in the files held at the notaries' offices. Land documents of the United States are generally found at the local county court offices.
The seigneurial system was the first land holding system to be established in Canada and became the key element in the early colonization of this country. At the pleasure of the King of France seigneuries were granted in Nouvelle France to those who would agree to populate their land with settlers. Two types of seigneuries were known - a fief de dignite, which could only be held by a nobleman, and a fief noble. Despite the connotation of the term, a fief noble was not reserved for noblemen and no title was attached to it. As of 1663 most seigneuries were owned by nobles. However, one hundred years later most seigneuries were possessed by commoners. Below is a table of the number of seigneuries granted in Nouvelle France from 1623 through 1740:
YEARS SEIGNEURIES GRANTED
At the time of the English invasion seigneury land holdings encompassed almost all of the north bank of the St. Lawrence river from La Malbaie to and including the Vaudreuil-Soulanges triangle. On the south shore of the St. Lawrence seigneuries formed a continuous line from Beauharnois to present-day Point-au-Pere. Nearly all of the lands in the Lake Champlain area had been granted as seigneuries.
The seigneurial system, notwithstanding that the lands in the rest of Canada were held as freehold property, was not abolished until 18 December 1854. At that time the government promised all seigneurs an indemnity for their losses and a separate court was established to assess those loses. Seigneurs were also permitted to retain their domaines direct along with any other land within the seigneury that was not ceded. A censitaire was accorded the opportunity of purchasing his lands by paying a sum equivalent to the then market value of his land. Alternatively, the censitaire could opt to pay an annual rent to the former seigneur. Those rents continued to be paid until 1940 at which time Quebec passed legislation that redeemed the rent from the seigneurs and required that all further rents be paid to their municipality.
Seigneurial documents have been deposited at the Archives nationales du Quebec. Those documents were inventoried in six volumes by P.-G. Roy in his "Inventaire, des concessions en fief et seigneurie, fois et hommages, et aveaux et denombrements" (Beauceville, L'Eclaireur, 1927-1929). In 1852 the government published four volumes titled "Edicts, Ordinances, Declarations and Decrees relative to the Seigneurial Tenure, required by an address of the Legislative Assembly, 1851".
Crown Land Grants
Upon the invasion of Canada by the English all real property was seized and became Crown land. Grants of Crown lands were given to individuals as well as to corporations such as the Canada Company, and to organized parties of settlers such as those who emigrated with Peter Robinson. Once Crown lands passed into the hands of a grantee that property thenceforth became private property. All transactions affecting real property were carried out under the leasehold or freehold system. Transactions affecting real property that had been originally purchased from the Crown by corporations required somewhat more documentation before a transfer of title to a third party could be completed. The most substantial genealogical data will be found in the original Crown land grants and in the grants given by the Canada Company. Accordingly, those are the records that we will be focusing on at this time.
In order for an individual or corporation to obtain a grant of Crown lands that party must have first filed a Petition with the Lieutenant-Governor. If the petitioner was a United Empire Loyalist or claiming a grant under that title the Petition was passed to the Inspector General's office where the name of the individual and his entitlement were verified. After the review of the Petition by the Lieutenant-Governor it was passed on to his civil secretary to record the notice of petition. The Petition was subsequently passed to the Clerk of the Executive Council where, it was added to the agenda for the next meeting of the Land Committee of the Executive Council. At that meeting the Petition was accepted, accepted conditionally upon receipt of further information from the petitioner, or denied. At such time as a petition had been reviewed a decision was entered by the Land Committee in its minute books, known as Land Books, and a copy of the decision was returned to the Lieutenant-Governor's office.
At such time as a petition was granted it was passed to the Receiver General's office where the fees required would be calculated. Prior to 1818 a petitioner was required to pay the fees before his settlement duties had been performed. After that time payment of the fees was not required until after the settlement duties were completed. In any event, upon receipt of payment the Receiver General's office forwarded a copy of the payment receipt to the Clerk of the Executive Council for its records.
If a Petition for Crown lands had been accepted and granted, an Order-In-Council was prepared, which contained an extract from the entry in the minute books of the Land Committee. The Order-In-Council was passed along to the Attorney General so that he could prepare a Fiat and enter the information into his own register. The Attorney General then forwarded the Fiat and the Order-In-Council to the Surveyor General whose function it was to survey the location, prepare a location certificate and a legal description for the property. The Surveyor General also maintained his own separate register of lands granted so as not to inadvertently re-grant the same lands to more than one individual. Eventually, the petitioner received a copy of the location certificate and set about the business of performing his settlement obligations.
The primary settlement obligations generally involved clearing the land that he was to be granted and building a house. After all settlement obligations had been fulfilled the petitioner was then able to re-petition the government for the final grant of land. As one can readily see, obtaining a grant of Crown lands was an involved process during which many documents and copies of documents were filed with numerous offices.
Petitions for Crown land grants filed during the period 1819 to 1825 may have been submitted to the Second District Land Board rather than to the government at York. That Land Board also had its own system of accepting, reviewing, and ultimately granting petitions.
Probably the most difficult aspect of early Ontario genealogical research is establishing the place of origin of the ancestor or at the least, establishing the last place of residence of an ancestor. Many researchers will find their answers to those questions in one or more of the early Crown land petition documents and in particular in the first original Petition, the Fiats, and the Warrants or Orders-In-Council. It was not sufficient for an individual to merely want to obtain Crown lands. That party had to provide some proof of his entitlement thereto. Part of that proof of entitlement involved stating either his place of origin or his means of entitlement through loyalist services. Again, our Compendium of Ontario Records can help you locate additional research pathways.
- Crown land grants were given to United Empire Loyalists who could prove residency in Canada prior to 28 July 1798.
- Grants were also given to sons and daughters of United Empire Loyalists.
- Scottish emigrant grants, as of 1815, were extended to sons of militia emigrants.
- Military service grants were accorded those who served the country but especially for service during the war of 1812.
- A military service claimant extended to include disbanded or pensioned soldiers of the British army.
- A "military emigrant" was considered to be those individuals who were part of the Perth and Richmond Settlement of Lanark County and the grants cover the period 1815 to 1822.
- Peter Robinson emigrants were those individuals who emigrated with or under the auspices of Peter Robinson and settled around Peterborough during the period 1823 to 1826.
- Crown land grants were first offered to veterans after 1901. In this case the individual was required to be a veteran of the Fenian Raids of 1860 or the South African Campaign 1899-1902.
Gratuitous grants were made to individuals who were judged destitute by the government or for some reason had all fees waived. The qualifications for a gratuitous grant changed over time but particularly in relation to the amount of administration costs that were required to be paid. After 1826 free grants were limited to Loyalist and Military claimants.
Although being granted the right to settle on Crown lands that grant did not always lead to private ownership of the property. To determine whether or not a property did pass into the hands of a private ownership, the researcher needs to check the Index to Land Patents in:
- Series RG 53-56 arranged by surname, 1826-1967, or
- Series RG 53-55, arranged by township, 1793-1852.
Also, you may need to check the Abstract Indexes to Deeds (arranged by township), which document private land transactions that occurred after the patent was issued, but do not contain the details of the Land Patent, directly.
The original Petitions for grants have been card-indexed by surname for the period 1792 to 1867 and cover the surnames found in the Upper Canada Land Petitions and Upper Canada Land Books series.
The Computerized Land Records Index compiled by the Archives of Ontario is an index composed of those who demonstrated an interest in settling on Crown land, those settlers who were granted the right to settle on Crown land, and the names of those who received the final Patent transferring full rights of ownership to them. Only the very first transaction affecting any piece of land is recorded in the Computerized land Records Index. For details of all subsequent transactions affecting that same piece of real property one needs to examine the Abstract Indexes to Deeds.
The Computerized Land Records Index also includes references to the location within the archive records where the original documents can be found. If you are researching early Ontario ancestry and suspect or are aware of a grant of Crown lands being made either to your direct ancestor or a collateral family member you should take the time to review the Computerized Land Records Index as well as the documents referred to for you just may find that all important place of origin of your ancestor.
The Computerized Land Records Index entries were compiled from:
- Crown Lands Registers for Fiats and Warrants (RG 1, Series C-I-3, on MS 693)
- Locations Registers 1790-1935 (RG 1, Series C-I-4, on MS 693)
- Peter Robinson Papers (F 61, on MS 12 Reel 2)
- Canada Company Sale & Lease files 1780-1920 (F 129, on MS 729, 8 reels)
and each entry has been coded with an Archival Reference Number, which indicates the source from which the data was drawn. By converting the Archival Reference Numbers you will obtain an Archives of Ontario Microfilm Reel Number on which to view the full record. However, bear in mind that occasionally the full record is nothing more than what is on the index! Regardless, it can also provide extra details, not on the indexed entries. To convert the Archival Reference Numbers to Microfilm Reel Numbers please see the Conversion Tables on the Archives of Ontario website.
Copies of the original Patent granted to an individual are only available through the
Management Board of Cabinet,
Official Documents Section,
724 Bay Street,
Canada M5G lN5.
Land Patents have been indexed by surname to 1825 and by township to 1850.
The letters that were received by the Commissioner of Lands for the period 1786 through to 1905 have also been indexed to some degree. A Correspondence Card Catalogue indexes all letters received during the period 1786 through to 1868 by the name of the correspondent. The Crown Lands Inventory is arranged in chronological sequence.
If an entry in the Computer Land Records Index cites the Canada Company Papers (F 129), you should examine the corresponding:
- Applications for Deeds 1827-1949 (Series B-3),
- Registers of Wills 1826-1920,
- Power of Attorney files 1826-1926 (Series A-7-1),
- Burial Certificates 1842-1923 and
- Remittance Books (Series C-7, Vols. 1-4), which list names and addresses of relatives overseas to whom money was sent.
If an entry indicates a Free Grant (FG) examine the Upper Canada Land Petitions Index (UCLP Index). The Upper Canada Land Petitions (NAC Series RG 1, L 3) can be borrowed on microfilm from the National Archives of Canada if it is not available at your local public library.
Heir & Devisee Commissions
Out of the Crown land granting system grew another administrative body. The Heirs and Devisees Commission, operative federally from 1797 to 1804 and provincially from 1805 to 1911, its function was to decide disputes and claims to land after the death of the original petitioner. Many documents were submitted to that Commission in support of an heir's claims to property including copies of location tickets, Wills, Mortgages, Affidavits, and testimonial letters. The files of the Heirs and Devisees Commission have been deposited at the Archives of Ontario, along with all extant original Petitions, Veterans' Petitions, the Surveyor General's Commissioner of Lands letters, Fiats, Warrants, and Orders-In-Council.
Also concerning Crown lands are collections of documents that are held by the individual land Registry Offices known as Township Papers. Documents within these collections are arranged by township and within each township, by concessions and lot numbers. The bulk of these papers deal with the original locatees but among them may be found other Crown land records. These documents are not indexed. Although many Township Papers remain in the hands of the land Registry Offices microfilms of the documents are available at the Archives of Ontario.
Canada Company records were similarly created, recorded, and administered. First, a party was required to file an application for land and these are available at the Archives of Ontario for the period 1827 through to 1949. Remittance Books were created to record the payments made and often include the names and addresses of foreign contacts. The Canada Company was also concerned with the devolvement of their granted property upon the death of the grantee and consequently Wills, Powers of Attorney and burial certificates will be found among their records. A register of Wills exists for the period 1826 through to 1920. Powers of Attorney were filed between 1826 and 1926, and burial certificates were filed for the period 1842 through to 1923.
Land Registry Offices
Records held by the various land Registry offices are vast, varied and are extant from 1795 to date. There are so many aspects involved in searching land records at a Registry Office that to enumerate them here would be unreasonable as many of the documents hold little, or no value to the genealogist. Records filed at the Registry Offices relate to private property, that being property that passes out of the hands of the original Crown land grantee. Copies of the various Crown land documents are filed at the Registry Offices only to establish a starting point for the succeeding history of a plot of land. What the family historian will be.concerned with are Memorial Books, Commissioners' Books, registers of original patents, the General Register, Power of Attorney books, Wills books, and after the legal description of the property is obtained, the Abstract Index Books.
Memorial Books and Commissioners' Books are essentially the same and contain handwritten verbatim copies of documents registered on the title of real property. Most books have a nominal surname index and refer to an instrument number. You can read the entry by turning to the Instrument number in the books. The entries in the books themselves are in chronological order and if no nominal index exists you will have to read each entry in the time period you are researching to find any instruments.
The Patent Books are, again, handwritten notations of the land granted by the original Crown Patent. These are arranged by name of township. For a search of these books to be efficient you will need to know if a particular township had, at an earlier time, been known by another name. For instance trying to locate an entry of a Patent granted during 1792 in records of the Township of Niagara would be fruitless for at that time that township was known as the Township of Newark.
The General Register is an index to documents that have been filed on title such as Statutory Declarations, Affidavits, and sometimes include references to Wills, Probates and court orders. Documents that are listed in the General Register can be found in the General Register collections by the instrument number set out in the index book.
The Wills Index books are similar to the General Register books although those books specifically list Wills that had been deposited on title. The Will Index books are surname indexed by name of the testator and by name of the legal representative and heirs. An instrument number is assigned to each Will deposited which will lead the researcher to the original document in the Registry Office files. The Power of Attorney index books operate in the same manner as the Will Index books.
Abstract Index Books contain a synopsis of the legal history of each lot alienated from the Crown and contain entries as of 1792. The Abstract Index Books for the period 1792 through to 1880 have been microfilmed and are available at the Archives of Ontario. The original Abstract Index Books remain in the hands of the various Registry Offices. Abstract Index Books are not surnamed indexed but rather, are maintained on a township, concession, plan, and lot number basis. Accordingly, if you wish to review the abstract index for any particular piece of property you first need to have the legal description of that property. The Abstract Index Books can provide the researcher with the names of the parties to a transaction, the date of the document, the data of registration of that document in the Registry Office, the consideration paid for the transaction, and in cases of part of lots being transferred or encumbered a brief legal description of the property affected. The Abstract Index Book also sets out the instrument number that was assigned to each document. Documents than have to be pulled from the files to be read thoroughly.
The Registry Office is a public office and as such any parson is entitled to search its records. Search fees and fees for copies of documents are levied. Registry Office staff are primarily there to facilitate currant transactions and are not in a position to offer assistance to an individual who is conducting historical research. Not all Registry offices have arranged their index books and documents on the same plan. Thus every trip to a different Registry Office can leave one feeling like they are starting all over again. If you wish to attempt a search at a Registry office do not be surprised to find that it will take several trips lasting several hours each to obtain some degree of familiarity with what you are doing, what you are looking for, and where you are likely to find the required documents. Where the original Crown land documents are likely to provide a researcher with a place of origin of an ancestor as well as references to kith and kin, land Registry Office documents are only likely to produce references to the kith and kin of an ancestor.
United States of America
Land transactions within the United States of America are governed in a manner very similar to that of Canada. Differences exist among the titles given to documents, some of which have already been pointed out, and in the place of registration of land documents. As earlier stated, land documents are to be found in the various Land offices of the County Courthouse. Abstract Index Books do not exist in the American system. Instead, land documents are filed by an instrument in Instrument Books and two sets of indexes exist an index to Grantors and an index to Grantees. It is necessary to read each index to be sure that you have found all references to an ancestor. Both indexes are not in strict alphabetical order. The surnames are listed together under the first initial of the name in chronological order by transaction. These indexes are very easy to use and to understand, which, in turn, makes the task of retrieving the required document much easier. Every Instrument Book has been numbered and all pages within the book are numbered.
Researchers of American land records will also come upon deeds of gift and warranty deeds. The latter provided a guarantee to the purchaser of good title while the former deed was given for a nominal sum for natural love and affection. It should be noted that deeds of trust in the United States were given to secure payment of debt somewhat like the Canadian mortgage.
Similar also to the Canadian system, American land office records include indices to guardianships, powers of attorney, judgments, orders, and decrees that were filed on title. Those types of documents are arranged in the same manner as the Instrument books and, again, are extremely simple to locate.
American land offices are also public offices and therefor are open to public search. Like the Canadian offices little help will be obtained from the staff in the physical aspects of a search. Staff, however, are charged with the responsibility for making photocopies of documents and there is a fee charged. No search fees though are payable if you conduct the search yourself.
Grants of Public Lands
The United States of America has also operated a scheme for the grant of its public lands. Most of the land in the United States is public land and covers 30 States. Some of those States are Alabama, Mississippi, Louisiana, Florida, Oregon, Arizona, Nevada, California, Alaska, Hawaii, Texas, Oklahoma, New Mexico, Minnesota, Wisconsin, Michigan, Illinois, Indiana, and Missouri. The real property within a public land state was first surveyed into sections containing 640 acres. There were 36 sections within one township. Each township was six miles square and each section one mile square. Sections, half-sections, and quarter-sections were sold at public auction for $1.00 par acre or $640.00, $320.00, and $160.00, respectively.
A good deal of public land was acquired by settlers either by way of public auction or pursuant to squatter's rights. As of 1841 the rights of pre-emption were formally established. A settler was required to file an application with the Land Board, could then move onto the property to improve it and after a settler had lived on the land for a period of six months he was permitted to purchase the land at a cost of $1.25 per acre. The total amount of land that could be obtained in this way in any one State was 160 acres. In other words, that settler was not free to move on to an additional plot of land within the same State and be permitted to purchase that new land at the $1.25 per acre cost. The rights of pre-emption were abolished during 1891. Land companies were the primary abusers of the rights of pre-emption. It was typical for a land company to employ people to pose as settlers for which those individuals were paid a wage. After the six months residency requirement was satisfied the employee would transfer his ownership of the property to his employer and he would be moved to another State to start the process all over again.
In addition to the rights of pre-emption, the Homestead Act was passed during May, 1862. That Act specified the qualifications that had to be met by every individual wishing to purchase public lands. An individual had to be 21 years of age or older and the head of a family. The individual had to be a citizen of the United States of America or, if an alien, had to demonstrate an intention to become a citizen of the country. The proposed grantee also had to live on the land for a period of five years and make improvements to the land before he was entitled to purchase the land at the reduced rate. As of 1935 all public lands, other than Alaska, were withdrawn from public sale or homesteading. Today, only leases of public lands may be obtained for very specific purposes.
As with the system of Canadian Crown land grants, the sale of public lands in the United States resulted in the creation of numerous land documents. All transactions were recorded in Tract Books or Township Plat Books, which are still in the hands of the State Land Offices or the federal Bureau of Land Management.
Throughout most of the British Isles land is held as free and common soccage and has been, more or less, since the demise of the feudal system. However, the laws governing conveyance and rights of heritability of real property are extremely complex. Add to this the innumerable methods by which an individual can become entitled to possession and ownership of a piece of property and you have a system of land granting that can provide the family researcher with an enormous amount of genealogical data.
The problem is that, as earlier stated, the majority of conveyancing documents are still held in the files of the solicitors and by the individual property owners. Some solicitors and individuals have deposited their early records with local record offices and a fair proportion of those records have been inventoried by the NIDS system. It is well worth the effort required to examine any NIDS inventories for it is not unusual to find that through several transfers of property one can gain two, three, and even four generations of a family as well as names of collateral branch families. It is also quite common to find family lineage charts among solicitors files for often the job fall to the solicitor to determine who was to inherit what property and in what proportion based upon his or her position within the family whole.
Throughout Great Britain gavelkind was the general custom of the realm for holding land until the feudal law of primogeniture superceded it. Pursuant to gavelkind all property passed to all sons in equal shares upon the death of the land holder. Gavelkind inheritance was altered in Wales by 34 and 35 Hen. VIII, c. 26 (1543) to require lands held by gavelkind to descend to an heir according to the common law of the times. Gavelkind is still the method of land holding that operates in Kent today and on the manorial properties of the Manors of Hackney and Stepney. The only method by which gavelkind inheritance can be circumvented is by way of a Will. Accordingly, it became almost standard practice for an individual holding gavelkind property to draw a Will no matter how small his landed estate. Gavelkind lands were also not subject to the same laws of escheat as other property of the realm for reasons of felony although it could still be escheated for reasons of treason or want of heirs. The maxim "the father to the bough, the son to the plough" grew out of gavelkind property holdings. Gavelkind was also unique in that an heir as young as 15 years of age was permitted to sell his inheritance by livery of feoffment. The contract had to be completed by the young heir directly as being underage he was not able to contract for the services of a solicitor. Conveyance by feoffment was abolished in 1925 and after that time no infants (those under 21) were able to legally hold land.
In Great Britain one encounters a form of land ownership known as Fee Tail, or an entailed estate. That form of ownership ensures that the holder of a title of nobility also gets to hold the land that may have long been associated with that title. Ownership by fee tail was also used to ensure that property remained only in the hands of a family by requiring that the property pass only to any male descendant. The term fee tail is derived from the French tailler meaning to shorten or limit. The grant generally takes the form of "to X and the heirs (or heirs male) of his body". Consequently, a grantee is not free to dispose of the property as he sees fit. After the grantee's death the real property will descend according to the rules of the entail or pursuant to the rules of intestate succession, which also generally provided that all real property pass to the next oldest surviving male descendant. Entailed estates can only be granted for the length of the grantee's life plus 21 years thereafter. Accordingly, the next person in succession under the entail would have to impose a fresh entail in his Will. Under this form of property possession it is not difficult to see how one piece of property could be passed back and forth between different collateral branches of one family. It is also not difficult to see how one entailed piece of property can provide the researcher with several generations and collateral branches of a family.
Once again, this system of land holding provides many opportunities for the family historian through which to discover pertinent family data.
If you are researching British ancestors and wish to become fully aware of all of the different types of helpful documentation that is available to you, you should consider investing in our book English Records: a Guide. This reference digest to 347 English records spanning 800 years assures that you will never be stalled for very long by a research roadblock and details all of the various land records that are potentially available to assist in your search.