Ik. Cornell University Law Library. THE GIFT OF 1 Cornell University Library i KF 569.T42 Selected cases on real property .Selected 3 1924 018 813 836 / ^^ 7 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018813836 SELECTED CASES ON REAL PROPERTY. SELECTED AND ARRANGED FOB USE IN CONNECTION WITH THE author's TREATISE ON REAL PROPEETT. CHRISTOPHER G^'HEDEMAN, LL.D., Author of Treatises on Seal Property, Commercial Paper, Limitations of Police Power, Etc. 8T. LOUIS, MO. . THE F. H. THOMAS LAW BOOK CO. 1897. '-s^67/f Entered according f-o Act of OongreBa, ia the year 1S97, by CHRISTOPHER G. TIEDEMAN, In the Office of the Librarian of Coagrees, at Washington. Press of Nixon- Jones Priniing Co.» 216 Pine Street, St. Louis, Mo, PREFACE. For the past five years there has been a very energetic dis- cussion among the legal educators of the country, in which the American Bar Association have taken an active part in their suc- cessive annual meetings, as to the merits of rival methods of legal education. A careful analysis of these discussions seems to me to reveal most clearly that in the future the method of in- strnction, that will prevail in the great majority of the law schools of the country, will be based upon the twin principles of ex- position and illustration: Exposition, by means of the formal lecture or by recitation based upon the previous study of the text-book; an6L illustration, hy the use of selected cases, which will illustrate the application of the principle in actual litigation. It is undoubtedly true that the need of illustration has been always felt by the teachers of law, as long as law schools have been in existence ; and until recently, they have attempted to supply this want by referring the student to particular cases, to be found in the official or other published reports, and by the establishment of moot courts. The moot courts have proven unsuccessful everywhere ; and in most law schools they have been abandoned. The professorial reference to cases has not proven altogether successful, either because the student would not take the trouble to read the cases ; or because there were not enough copies of the report in the law school library, to enable all the students to read the case referred to. This inefficiency in the older method of instruction, under the influence of Harvard's advocacy of the pure case method of instruction, has led to the publication of a number of selections of cases, to be used in connection with text-book and lecture. My efforts in the production of legal treatises, adapted for use in law schools as text-books, have met with such great favor,, that one or more of them are now in use in thirty-six law schools. From many of the professors, who use my text-books, have come the request that I publish a volume of selected cases, adapted for use in connection with my text-books. Believing as I do that this will be the ultimately established method of instruction in law schools, I have begun the preparation of these (iii) IV PREFACE. coUectiona of cases, and herewith present the volume of " Se- lected Cases on Real Property." The cases are selected to illustrate the principles expounded in the text-book, and are arranged, as nearly as possible, in the order of discussion there adopted. Inasmuch as the ca^es here presented are intended to illustrate the practical application of legal principles to litigated causes in this country, the latest American cases of merit, which could be found, have been selected, rather than old or English cases. While this volume is specially prepared for use in connection with my text-books it can be successfully employed along with any other treatise, or as an aid to students in a course of lec- tures. Cheistophek G. Tiedeman. New York City. INTRODUCTION* METHODS OP LEGAL EDUCATION. The question of legal education Is receiving more attention in this country than it has ever before had given to it. This great manifestation of interest in discussions over the merits of different methods of instruction cannot fail to be productive of great good by the detection of 'whatever is faulty in each of the so-called methods of instruction, and the possible construction of a new system, composed of Vfhatever is found to be good in the several preva- lent methods. But the caution must be observed that, after all, no iron-cast method of instruction can be successful in actual application, however flawless it may seem to be in theory. The individuality of the teacher must not be par- alyzed by any fixed system of instruction. For the native talent of the professor for teaching counts for a great deal more than the peculiarities of his method of instruction. And very often the strong personality of the teacher Will successfully conceal the defects of the methods vyhich he employs. But after due allowance has been made for the full play of the teacher's individuality, methods of instruction may be made to conform to general principles, and may be improved or made worse according to the correctness of the funda- mental principles upon which they are established. Bearing in mind that a very poor and fundamentally faulty method of instruction may be made to pro- duce satisfactory results by the Indefinable and immeasurable influence of a truly great teacher and eliminating, as far as possible, this personal equation from the criticism of different methods of instruction, there is but one way to ascertain with any reliability their respective merits and demerits, and that is by a criticism of the soundness or unsoundness of the fundamental conceptions of the law upon which they are based. In the first place, a distinction should be made between the relative merits of methods of instruction and of the materials used in imparting instruction. If I have not entirely misconceived the character of the discussions which have been provoked by recent events, and by the active intei'ference of the American Bar Association, they principally relate to the character of the materials em- ployed in giving instruction, and not to rival methods of instruction. There are but two essentially different methods of legal instruction in use in this country, viz. : the European system of formal lectures with or without the collateral aid of the seminarlum, and on the other hand, Instruction by a combination of recitations and informal discussions of questions and principles of law In proportions varying with the individuality of the teacher. In many of the law schools, probably in the great majority of them, both methods are employed to some extent, but only two prominent law schools * First published In Yale Law Journal, March, 1892. (V) VI INTKODUCTION. employ the first method more or less exclusively. If I have not been mis- informed, the other prominent law schools of the country, as well as the great majority of the smaller schools, employ in the main the latter method of instruction, i. e., by recitation and informal discussion by teacher and student. If the law students of any one school were composed entirely of college-bred men, and therefore possessed of more or less well-trained minds, the former method of instruction is in my judgment unquestionably superior to the latter. For if the duty of the teacher is to explain and discuss the principles and rules of law, he can do so more effectively and can accomplish more in a given time, if he is not obliged to take up his time with catechising the students, and lis- tening to their opinions, which even in the case of college-bred men must be the immature reflections of a tyro. And that method of instruction would be brought to a state of comparative perfection, if the lecturer were to place in the hands of his hearers an elementary treatise on the subject of his instruc- tion, whose treatment and analysis he follows in his lectures so that the stu- dent can come to the class-room already possessed of information concerning the elementary principles, suflacient to enable the professor to proceed directly to the more profound discussions of the subject, and to the practical applica- tion of these principles to the variety of cases, which the teacher can best draw from the adjudications of the courts. This is the system which I learned to admire while sitting under the skillful instruction of the celebrated von Ihering of the University of Goettingen. But the formal lecture is not suited for the ordinary American law school, for the reason that the average law student does 'not come to the law school with such a trained mind as a college course generally insures. I cannot think there is much doubt that as long as the law schools are obliged, in the con- sideration of the highest interests of the legal profession, to accommodate themselves to the needs of students who come to them with untrained minds, the latter method of instruction, i. e., of recitation and informal colloquies, is the best adapted to our present needs. I believe that the legal profession generally entertain the same opinion. At any rate, with very few exceptions,— and the most prominent law schools do not constitute these exceptions, — the common method of instruction is the one described as a combination of reci- tations and colloquy. The most serious discussion relates not so much to methods of instruction, in the sense in which I employ the terms here, as to the materials used in giving the instruction. The important inquiry, to which I understand myself to have been invited to principally direct myself, in the present instance, is concern- ing the relative value of the use of text-books or treatises or, of leading ad- judicated cases, in giving legal instruction. As I understand it, both parties to this controversy substantially agree that the instruction in the class-room should generally assume the informal character of a recitation and colloquy, their point of difference being the materials from which the student is to recite, and about which the colloquy is to be had. The relative value of text-books and of adjudicated cases in giving legal in- struction can only be determined, as I stated above, by a criticism of the con- ceptions of law Which underlie the contention, and the aims held in view in providing for legal instruction. There are four things to be attained by systematic legal instruction, and no INTRODUCTION. vii system is complete which does not make provision for the attainment of all of them, viz.! to teach (1) what is the law; (2) how law is evolved or made; (3) how to extract the ruling principle of law from an adjudicated ease; (4) how to apply known principles of law to new cases as they arise. No one would deny that the study of actual cases wUl alone satisfy the third and fourth requirements of legal education, as just set forth. Nor can there be much doubt that a student cannot learn how law is made, unless he studies adjudicated cases, even where the particular matter is regulated by statute. For the statute does not always contain the true living rule of conduct. The true rule or rules, which are produced by the enactment of a statute, are not to be found in the letter of the statute, but in the construction placed upon it by the courts. The law student cannot find in the Statute of Frauds all that is necessary for him to determine when a writing is necessary to the validity of a contract. Be must look for an accurate answer to his inquiry to the thousands of cases In which the provisions of the statute of frauds have been construed and modified in their application to particular cases, or he must go to some reliable treatise on the subject, whose author has made the investigation for him. The student should be made to understand that the edicts of the legis- lature are not in themselves necessarily living law, except so far as they reflect the prevalent sense of right, but that the real rule of civil conduct is to be ex- tracted from the cases, in which the statutory rule finds in its application to individual litigation the more or less serious modification which is necessary to bring it into conformity with the popular sense of right. The second and third aims of legal education, as here differentiated, only serve to teach the student how to discover for himself what is the law, while the fourth gives him an opportunity to learn how to make a practical use of his legal knowledge. Legal educators may differ as to the amount of time which should be devoted in a law school course to the attainment of these three elements of professional education; but they cannot seriously deny that the study of cases is the only method by which this instruction may be imparted. Nor can there be much cause for doubt or dispute that the major part of a law school course must be devoted, not to teaching how law is evolved, or how to extract the law from adjudicated cases, or how to apply it to new cases, im- portant as these things are, but to teaching what is the law, what are the prin- ciples, general and special, which give logical shape to all systems of jurispru- dence. And it is at this point in the discussion of educational methods, that there is the greatest cause for contention. There is very little room for doubt that, at least in the Anglo-Saxon world, the adjudicated cases are the great reservoir of legal learning, and that the original investigator must go to these cases for the materials out of which he may construct our jurisprudence, or satisfy the more modest desire of ascer- taining what is the law of the land on a particular subject. But he would use the cases not for the purpose of learning directly from them what is the law, but to discover, as the scientific investigator hopes by his experiments with the forces of nature, the fundamental principles underlying the concrete manifest- ations of their influence. If the chemist or physicist, or biologist, wants to learn what is already known about their respective sciences, he goes to the treatises in which are recorded the results of the investigations of others. He does not open the book of nature, and expect to find therein the principles set VIU INTRODUCTION. forth In such intelligible terms as that he who runs may read. He goes to his library, instead of to his laboratory. The adjudicated cases constitute nothing more than materials out of which the scientific jurist is to construct a science of jurisprudence. They are not law in themselves, they are but applications of the law to particular cases. Law is not made by the courts, at the most only promulgated by them. Any one who belieres that judges are free agents in the rendition of decrees and judgments, may be inclined to question the soundness of the last proposition. But he who is fully persuaded that law is not the independent creation of the judicial mind, but is the resultant of the social forces reflecting the popular sense of right, will readily give his assent. The judge is but an instrument for the promulgation of this popular sense of right in its particular application to the cause at issue. When I first met with the proposition, which is so often enunciated by legal writers, as a proper and satisfying explanation of the rela- tion of statutory law and "judge-made" law, as Bentham contemptuously calls it, that the judge, in rendering a decision on a novel question, or in modifying a principle of law which has been previously enunciated, does not make law but only declares what was the pre-existing, although perhaps as yet unexpressed, law — I was Inclined to repudiate the doctrine altogether as a fiction, and to give my approval to Bentham's criticism of this judicial liberty. But when I looked deeper into the origin of the law, and satisfied myself that all law, so far as it constituted a living rule of civil conduct, whether it takes the form of statute or of judicial decision, is bat an expression of the popular sense of right through the popular agents, the legislator or the judge as the case may be — then a new light was thrown upon what I was Inclined to pronounce an unwarrantable fiction, and I believed all the more firmly that neither the judge nor the legislator makes living law, but only declares that to be the law, which has been forced upon them, whether consciously or unconsciously, by the pres- sure of the popular sense of right, that popular sense of right being itself but the resultant of the social forces which are at play in every organized society. If this be the true conception of the origin and development of law, then it must be conceded that learning what principles of law have been given birth or have been more or less modified in a particular decision or set of decisions is not an elementary work which may be intrusted to beginners, or which law students, at least in the earlier stages of their professional training, may be expected to do satisfactorily to themselves and to their teachers. In the first place, the whole law or any appreciable part of it, on a particular subject, can- not be learned from the study of a few leading cases, but only from a very large number of cases. For example, in order to learn the law in relation to the requirements of the statute of frauds, one would have to read not a few cases, but thousands of cases. To teach law by cases, — granting for the present that it is possible to teach law as a science by cases alone, — it would require an incredible length of time to teach even the elementary law. But apart from the physical impossibility of reading enough cases in order to enable the student to learn the law in the time to which the exigencies of Amer- ican life require a law school course to be limited, the legal tyro is not mentally capable of extracting the principles of the law from adjudicated cases, even though he be a college bred man, and possessed of more than the average of ability and industry. A few men of extraordinary mental powers may be able INTRODUCTION. IX to collect together and formulate correctly, by the study of cases alone, the principles upon 'which the adjudications rest, but the average student will, by such a system of instruction, if pursued exclusively, be impressed with the great weight of judicial precedent, and he will become, what is so generally deprecated, a case-lawyer, who thinks the whole business of advocacy consists of persuading the court that the cases he cites in support of his side of the con- troversy, are to be followed, not because they enunciate a profound scientific truth, but merely because they have given judgment for the plaintiff or defend- ant on a similar statement of facts. The higher aim of their instructors to make of them conspicuously original investigators in the law is lost on the average law students. Law students, in the present state of public opinion, are inclined to consider rules of law, as they are enunciated by the court, as distinct and independent propositions, which may be strung together in a digest in some more or less orderly manner, but which have no logical connec- tion, leading up to the formation of a compact scientific system of jurispru- dence. And it strikes me that this evil, so far at least as the average student is concerned, will be intensified by telling him that he must learn the law from the cases alone. The average student will not do the necessary work in order to be able to construct for himself, out of the mass of judicial decisions, an orderly and logical presentation of the fundamental principles, which are the groundwork of every system of jurisprudence, and a knowledge of which is absolutely essential to any scientific conception of the law as a whole, or in the detailed application to special cases in actual practice. It It taxes the mental energies of the most experienced and skillful of our law writers to present accurately and logically the law on a given subject, so as to guide and not to mislead the active practitioner and judge in the winning and settlement of judicial contests, we certainly cannot expect the student to do this work satisfactorily or accurately. One of the most successful of our American legal authors once observed in my presence that he often found It Im- possible to discover the common principle by which conflicting decisions, even of the same court, may be reconciled. He did not refer to cases in which there was a direct repudiation of a prior decision, but to those cases in which there was an express or implied confirmation of the prior decisiot), but with so great a departure In practical results, as to force one at least to the conclusion, that the later decision imposes a serious modification of the rule of law as laid down in the prior decision. To present In a clear light the rule of law, as it emerges in a modified form, from the clashing interests represented by two or more decisions requires the skill and leisure of the experienced legal author. The busy practitioner has not the time, and the tyro has not the skill or experi- ence to enable him to escape the confusion of ideas which the reading of confiicting decisions occasions. But even if the student is capable of doing this work from which old prac- titioners shrink, why should he be forced to learn the law exclusively in this laborious and difficult manner? Must he be denied the privilege, which the students of medicine, chemistry and the other sciences enjoy, of learning at the outset of his study from treatises what other original investigators have discovered? Like the student of the different sciences, the law student must learn how to make original investigations for himself, and diagnose, so to speak, the principles of law from the cases in actual litigation. But no reason X INTRODUCTION. can be given why he must learn the whole science of the law by his own inves- tigations in the undigested mass of raw material in the shape of adjudicated cases. No medical school can pretend to give a complete course of instruction at the present day, without introducing into its curriculum a comprehensive course of clinics. Nor does the professor of physics or chemistry teach these sciences exclusively by the use of the text-books and pictorial representations of the various experiments as was once the practice. But the instrnctors of these sciences have not discarded the treatise ; they have only supplemented the use of the treatise with the resort to the laboratory and operating room. The difflculty in reaching a common agreement in the present discussion over methods and means of legal instruction is the difficulty which is often experi- enced in finding the middle and true ground of a controversy. Impressed by the defects of the older systems of instruction, in which the law student was presented with more or less abstract propositions of law, with the aid of text- books, which often were either nothing more than digests of the cases, and put together in an illogical and disorderly manner, or whose statements of the law were so loose and inaccurate as to prove misleading; and more impressed with the necessity of " legal clinics " in the course of instruction in the law school instead of being left for acquisition in the law office, the advocates of instruc- tion by cases have gone to the opposite extreme of placing too high a value upon the study of cases, and of unduly depreciating the value of the study of theoretic law, apart from learning it through the medium of practical law. But notwithstanding their undue appreciation of the study of cases, they tacitly concede its inefficiency as a sole means of learning the law, by accompanying the study of the cases with a glossary or commentary of that part of the law, which is treated in the cases. The cases are therefore used merely as illustra- tions of the law which is set forth in the commentary, which is either given to the student in printed form or imparted by the professor in his class-room in- struction. If the commentary consists of a scientific and logical treatment of the branch of law selected, corresponding to the methods adopted by the better legal treatises of modern times, the Instruction by cases differs only from the instruction with the aid of the best text-books, in that the illustrations of the law constitute the text, while the law is put into foot notes, and has the disad- vantage of misleading the student as to what is, and what is not the nature of the law. If the glossary or commentary is nothing more than a digest of the cases for which space could not be found in the text, then the employment of such a book in a class-room Instruction will not avoid many of the evils which, were complained of under the older regime. The advocates of instruction by the use of cases have effected an important reform in legal education by arousing the law schools of the country to the importance of infusing more life into their instruction, and of introducing into their curricula what I would call " legal clinics," and for this great good the legal profession should be grateful to them. But the great danger of driving out of the schools all scientific study of the fundamentals of the law in the un- checked study from the cases of isolated propositions of the law, ought not to be lost sight of. I think we may, in this connecj^on, consider with profit the order of legal instruction pursued at the German universities. In the first half of their three years' course, the student gets nothing but theoretic and rela- tively elementary law, which he gleans from the lectures of the professor and INTRODUCTION. xi from treatises, corresponding to the English and American text-book. The same course of instmction is maintained to the end of the university course, except that the seminarium is added, In which the student gets his first insight into practical law, and where the method of instruction is practically a study of law by cases, except that the cases are In the main hypothetical. When the student receives bis doctorate, he is enrolled among the officials of the court as a referendar, performing duties as an assistant to the judges, which are calculated to give him the practical experience which is aimed at by the law in many of the American States in requiring of candidates for the bar an apprenticeship or clerkship in a practicing lawyer's office. If I were called upon to establish a course of legal instruction, I would follow the German methods as nearly as the situation and public opinion in America would allow. I would make the course in the law school three years. During the first year, I would confine the student to the study of the funda- mental principles of the law with the aid of the most approved treatises, and without any resort to cases, except by the instructor, who would use them in the class-room for the purpose of illustrating the text. The second year would be in the main similar to the course of instruction of the first year, with a partial introduction of " legal clinics " and of the seminary methods. In the third year the instruction would largely consist of the study of cases, and of practice and pleading. During the entire course in the law school I would place the ban upon the resort of the student to the law office. His clerkship in the law office should begin upon his graduation from the law school. Although the views here presented, reflect no one's opinions but my own I desire to say in conclusion that, in the University of the City of New York, of whose faculty I ain a member, no one method of instruction is followed ex- clusively; all methods are in turn adopted so far as they seem to serve the purpose of making lawyers out of the young men who come to us; and each professor is permitted to adopt whatever methods will enable him to give the best expression to his own individuality. TABLE OF CONTENTS. PAGES. CHAPTER I. — What IS Real Property 1-11 CHAPTER III.— Estates in Fee Simple 12-28 CHAPTER IV.— Estates Tail 29-40 CHAPTER v.— Estates FOR Lite 41-52 CHAPTER VI. — Estates Arising out OF Marital Relations . . . 53-97 CHAPTER Vir.- Estates FOR Tears 98-153 CHAPTER VIII.— Joint Estates 154-209 CHAPTER IX. — Estates Upon Condition and Limitation and Conditional Limitations 210-233 CHAPTER X.— Mortgages 234-300 CHAPTER XL— Reversion 301-310 CHAPTER XII.— Remainders 311-365 CHAPTER XIII.— Uses AND Trusts 366-392 CHAPTER XIV.— Executory Devises • . .393-432 CHAPTER XV.— Powers OF Appointment 438-467 CHAPTER XVI. — Incorporeal Hereditaments — Commons — Ease- ments — Franchises — Rents 468-605 CHAPTER XVII.— Licenses 506-521 CHAPTER XX. — Title by Original Acquisition, Including Ac- cretion, Adverse Possession, Statute or Limitations, Estop- pel, Abandonment 522-587 CHAPTER XXL— Title by Grant — Public Grant — Involving Alienation — Private Grant 588-617 CHAPTER XXII.— Deeds — Their Requisites and Component Parts, Including Covenants of Title 618-735 CHAPTER XXIIL— Wills 736-771 (xii) TABLE OF CASES REPORTED. PAGK Allen V. Kennedy, 91 Mo. 324; 2 S. "W. 142. 726 Babcock v. Collins, 60 Minn. 73; 61 N. "W. 1020. 626 Barlow v. Dahm, 97 Ala. 414; 12 So. 293. 136 Benton v. Perry, 146 111. 71; 34 N. E. 60. 177 Booker o. Tarwater, 138 Ind. 336; 37 N. B. 979, 631 Boon Co. V. Patterson, 98 U. S. 403. 596 Bowen v. Chase, 94 U. S. 812. 469 Bozarth v. Sargent, 128 111. 95; 21 N. E. 218. 63 Brandon v. Carter, 119 Mo. 572; 24 S. W. 1035. 388 Brattle Sq. Church v. Grant, 3 Gray, 142. 393 Bryant©. Vincent, 100 Mich. 426; 69N.W. 169. 140 Buckey v. Bnckey, 88 W. Va. 168; 18 S. E. 383. 618. Bnffington v. Mazam, 152 Mass. 477; 25N.E. 975. 377 Burdette v. May, 100 Mo. 13; 12 S. W. 1066. 379 Carson v. Fuhs, 131 Pa. St. 266; 18 A. 1017. 366 Cartwright v. Cartwright, 1 PhilU- more, 90. 744 Chapin v. Crow, 147 111. 219; 35 N.E. 536. 349 Childersv. Schantz, 120 Mo. 305; 26 S. W. 209. 601 Cihak V. Kleke, 117 111. 643; 7 N, E. 111. 480 PAGE Claiborne v. Radford, 91 Va. 527; 22 S. E. 348. 736 Collins V. Chartiers Val. Gas Co., 131 Pa. St. 143; 18 A. 1012. 494 Cook V. Bartholomew, 60 Conn. 24 ; 22 A. 444. 249 Copeland v. McAdory, 100 Ala. 663 ; 13 So. 645. 714 Cowell V. Springs Co., 100 TJ. S. 66. 213 Coxey ». Springer, 138 Ind. 506; 37 N. E. 506. 334 Crowell V. Keene, 159 Mass. 362; 34 N. E. 405. 234 Crozier v. Bray, 120 N. Y. 366 ; 24 N. E. 712. 318 Deanc. Mumford, 102 Mich. 610; 61 N. W. 7. 418 Doren v. Gillum, 136 Ind. 134 ; 35 N.E. 1101. 706 Downing v, Mayes, 163 111. 330 ; 38 N. E. 620. 666 Doyle V. Union Pac. By., 147 U. S. 413. 112 Dreutzer v. Baker, 60 Wis. 179; 18 N. "W. 776. 637 Duncombe ». Felt, 81 Mich. 332; 46 N. W. 1004. 49 Dwight V. Hayes, 150 111. 273; 37 N. E. 218. 506 Edgerton v. McMuUan, 56 Ean. 90; 39 P. 1021. 490 Emeric v. Alvarado, 90 Cal. 444 ; 27 P. 366. 684 Equitable Life Ass. Soc. of the United States v. Bostwich et al., 100 N. Y. 628. 279 (xiii) XIV TABLE OF CASES EEPORTED. PAGE Eversole v. Early, 80 Iowa, 601; 44 N. W. 897. 719 Ewlng V. Shannahan, 113 Mo. 188; 20 S. W. 1065. 18 Eaber v. Police, 10 S. C. 376. 367 Filson ;;. Simshauser, 130 Bl. 649; 22 N. E. 835. 570 Foster v. Hackett, 112 N. C. 546; 17 S. E. 426. 344 Fox V. Mission Free School, 120 Mo. 349; 25S. W. 172. 498 Freeland v. Bltz, 154 Mass. 257; 28 N. E. 226. 101 Garibaldi v. Shattuck, 70 Cal. 511 ; 11 P. 778. 579 Godman v. Simmons, 113 Mo. 122; 20 S. W. 972. 361 Goodard v. Winchell, 86 Iowa, 71 ; 52 N. W. 1124. 630 Goodpasters v. Leathers, 123 Ind. 121; 23 N. E. 1090. 662 Gould V. Howe, 131 111. 490; 23 N. E. 602. 711 Greenwood v. Marvins, 111 N. T. 228. 169 Hale V. Hale, 125 111. 399; 17 N. E. 470. 423 Hanks v. Folsom, 11 Lea, 555. 373 Happ V. Happ, 156 111. 183; 41 N. E. 39. 582 Harris v. Soovel, 85 Mich. 32; 48 N. W. 173. 1 Havens «. Seashore Land Co., 47 N. J. Eq. 365; 20 A. 497. 606 Hay ward v. Kinney, 84 Mich. 591; 48 N. W. 170. 41 Henderson v. Hunter, 59 Pa. St. 335. 227 Hinchcliffe v. Shea, 103 N. Y. 153; 8 N. E. 477. 68 Hitchcock V. Simpkins, 99 Mich. 198; 59N. W. 47. 331 Horton I!. Jenks, 96 Mich. 13; 55 N. "W. 372. 46 Hughes V. Nichlas, 70 Md. 486; 17 A. 398. 429 PAGE Hutchins v. Van Vechten, 140 N. Y. 115; 35N. E. 446. 384 Ingalls V. Hobbs, 156 Mass. 348; 31 N. E. 286. 126 Ingels V. Ingels, 60 Kan. 755; 32 P. 387. 92 In re Hunt's "Will, 110 N. T. 278 ; 18 N. E. 106. 751 In re Walter's Will, 64 Wis. 487; 25N. W. 538. 740 Jones V. Fleming, 104 N. Y. 418; 10 N. E. 693. 72 Kellett V. Shepard, 139 111. 423. 301 Kennedy v. Moore, 91 Iowa, 39; 58 N. W. 1066. 284 King V. Kilbride, 68 Conn. 109; 19 A. 519. 721 King V. McCarthy, 60 Minn. 222; 52 N. W. 648. 237 Lake Erie & W. Ry. Co. v. Whit- ham, 155 111. 614; 49 N. E. 1014. 669 Lanahan v. Lawton, 50 N. J. Eq. 276; 23 A. 476. 244 Lanier v. Mcintosh, 117 Mo. 508; 23 S. W. 787. 295 Lawrence v. Springer, 49 N. J. Eq. 289; 24 A. 933. 612 Lehndorf v. Cope, 122 111. 317; 13 N. E. 606. 29 Lindley v. Martindale, 78 Iowa, 379; 43 N. W. 238. 663 Macauley v. Smith, 132 N. Y. 624; 30 N. E. 997. 239 Magee v. Allison, 94 (?) Iowa — ; 63N. W. 322. C49 Magie v. Reynolds, 61 N. J. Eq. 113; 26 A. 150. 266 Mann v, Jackson, 84 Me. 400; 24 A. 886. 217 McGee v. Hall, 26 S. C. 179; 1 S. E. 711. 338 McKaig V. McKaig, 50 N. J. Eq. 326; 25 A. 181. 69 TABLE OF CASES KEPOETED. XV PAGE McKeDzie v. Sumner, 114 N. C. 425; 19 S. E. 375. 366 McEissick v. Ashby, 98 Cal. 422; 33 P. 729. 145 McTiguec. McTigue, 116 Mo. 136; 22 S. "W. 601. 61 Mecham v. Bunting, 156 111. 686; 41 N. B. 176. 546 Mead v. Maben, 131 N. Y. 265; 80 N. E. 98. 408 Mette c. Feltgen, 148 111.367; 36 N. E. 81. 154 Michigan Mut. L. Ins. Co. v. Cronk, 93 Mich. 49; 52 N. "W. 1035. 3 Miller v. Meers, 165 111. 284; 40 N. E. 677. 653 Miller v. Topeka Land Co., 44 Kan. 354; 24 P. 420. 681 Mission of Immaculate Virgin v. Cronin, 143 N. Y. 524 ; 38 N. E. 964. 538 Moore v. Eobbins, 96 U. S 530. 588 Mulcahy v. Fenwick, 161 Mass. 164; 36 N. E. 689. 287 Mat. L. Ins. Co. v. Shipman, 119 N. Y. 324; 24 N. E. 177. 464 Nebraska v. Iowa, 143 IT. S. 359. 522 Neely v. Hoskins, 84 Me. 386; 24 A. 882. 223 Newcomb v. Webster, 113 N. Y. 191; 21 N. E. 77. 763 Norris v. lie, 152 lU. 190; 38 N. E. 762. 551 Oakes v. DeLancey, 133 N. Y. 227; 30 N. E. 974. 679 O'Neill V. Webster, 160 Mass. 672; 23 N. E. 235. 648 Outlando. Bowen, 118 Ind. 150; 17 N. E. 281. 311 Pharis v. Jones, 122 Mo. 126; 26 S. W. 1032. 636 PhUlips V. Sherman, 64 Me. 171. 493 Pickens v. Davis, 134 Mass. 262. 766 Pike V. Galvin, 29 Me. 183. 676 PAGE Pinkum v. City of Eau Claire, 81 Wis. 301; 61 N. W. 560. 468 Plummer v. Hillside Coal & Iron Co., 160 Pa. St. 483 J 28 A. 858. 9 Post V. Weil, 115 N. Y. 361; 22 N. E. 146. 728 Potter V. Couch, 141 U. S. 296. 433 Prentice v. N. Pac. Ey. Co., 154 TJ. S. 163. 695 Probett V. Jenkinson, 105 Mich. 475; 63 N. W. 648. 691 Eiggs V. Palmer, 115 N. Y. 506; 22 N. E. 189. 764 Eussell V. Fabyan, 34 N. H. 218. 148 Say V. Stoddard, 27 Ohio St. 478. 188 School District v. Benson, 31 Me. 381. 681 Seaver v. Fitzgerald, 141 Mass. 401; 6N. B. 73. 354 Sexton V. Chicago Storage Co., 129 111. 318; 21 N. E. 920. 105 Siddonsu. Cockrell, 131 111. 653; 23 N. E. 586. 26, 327 Smeberg v. Cunningham, 96 Mich. 378; 66N.W. 73. 543 Snedeker v. Waring, 12 N. Y. 170. 4 Smith V. Kimball, 153 111. 368; 38 N. E. 1029, 412 Smith V. Hitchcock, 38 Neb. 104 ; 56 N. W. 791. 540 Smith V. Westall, 76 Tex. 509; 13 S. W. 640. 668 Snow V. Pulitzer, 142 N. Y. 263; 36 N. E. 1059. 128 Staigg V. Atkinson, 144 Mass. 664; 12 N. E. 364. 79 Stein V. Dahm, 96 Ala. 481 ; 11 So. 697. 184 Stevens v. Pantlind, 96 Mich. 145; 54 N. W. 716. 182 Stewart v. Scott, 54 Ark. 187; 16 S. W. 463. 261 Syms V. Mayor of New York, 105 N. Y. 153; UN. E. 369. 98 XVI TABLE OF CASES REPORTED. PAGE Thomae v. Thomae (N. J. Bq. 1889), 18 A. 355. Ill Thornburg v, "Wiggins, 135 Ind. 178; 34 N. B. 999. 163 Townshend v. Thompson, 139 N. Y. 152; 34N. E. 891. 254 Tredwell v. Inslee, 120 N. Y. 458; 24 N. E. 651. 476 Truesdell v. Lehman, 47 N. J. Eq. 218; 20 A. 391. 12 Turner «. Littlefleld, 142 Dl. 630; 32 N. B. 522. 259 Union Mat. Life Ins. Co. v. Han- ford, 143 U. S. 187. 280 Union Trust Co. v. Olmstead, 102 N. Y. 729; 7 N. E. 822. 300 Van Cleaf o. Bums, 118 Mo. 649 ; 23 N. E. 881. 63 PAGE Warren v. Warren, 148 111. 641; 36 N. B. 611. 83 Watkins v. Green, 101 Mich. 493; 60 N. W. 44. 562 Watson V. Wyman, 161 Mass. 96 ; 36 N. E. 692. 293 Weart v. Cruser, 49 N. J. L. 475; 13 A. 36. 36 Weed B.Lindsay, 86 Ga. 686; 15 S. E. 836. 142 Wemyss v. White, 159 Mass. 484 ; 34 N. E. 718. 381 Wheeler v. Smith, 62 Mich. 373; 28 N. W. 907. 585 Wiswell V. Bresnahan, 84 Me. 397 ; 24 A. 886. 210 Wronkow v. Oakley, 133 N. Y. 505; 31 N. E. 529. 640 SELECTED CASES ON REAL PEOPERTY. CHAPTP]R I. "WHAT IS KEAL PROPERTY. Harris v. Scovel, 85 Mich. 32; +8 N. W. 173. Michigan Mut. L. Ins. Co. v. Cronk, 93 Mich. 49; 52 N. W. 702. Snedeker v. Waring, 12 N. Y. 170. Plummer v. Hillside Coal & Iron Co., 160 Pa. St. 483; 28 A. 853. Fixtures — Permanent Annexation. Harris v. Scovel, 85 Mich. 32; 48 N. W. 173. MoKSE, J. This is an action in trover for the conversion of 2000 fence rails, commenced in justice court, and subsequently appealed to the circuit court of Wayne County. Plaintiff re- covered judgment in both courts. The plaintiff, in the parti- tion of real estate, February 6, 1886, became the owner of a piece of laud 17 feet wide and 1,601 feet in length. There was then a fence on the land which, before the partition, made a lane. She sold the land to defendant October 3, 1888. The deed of conveyance was a warranty deed in the ordinary form. Having no use for a lane on the premises, about a year before she sold to the defendant the plaintiff took down the fence, and piled up the rails on the premises, intending, as she testi- fies, to remove them to a farm that she owned in Dearborn. She had drawn 84 posts upon this land, and made some prepara- tion to build a board fence as a division fence between her land and that of others, as, at the time the partition was made, it left the premises allotted to her open and unfenced. She testified, Z WHAT IS EEAL PROPERTY. against objection, that at the time she made the agreement with defendant to sell him the land she reserved the rails. There was no reservation in the deed. The rails, prior to being piled up by plaintiff, had been in this lane fence nearly 50 years. Flaintiffhad no use for the lane after the partition. Defendant testified that plaintiff, when making the agreement to sell, wanted to resei-ve the rails, but he would not consent to it, and bought the place as it was. The circuit judge submitted the question to the jury, instructing them that the rails piled upon the premises, and not being in any existing fence at the time of the sale, were personal property, and that, unless they found that the plaintiff sold the rails to the defendant — agreed that they should go with the land — she was entitled to recover. The court was right, and the judgment must be affirmed. Kails piled up, under the circumstauces that these were, are personal property. There can be no claim that fence-rails are of necessity part of the realty unless they are in a fence, and even in such case they may remain as personalty, if such be the agreement between the parties interested at the time the fence is built. Curtis v. Leasia (Mich.), 44 N. W. Kep. 500. The contention made, that plaintiff is estopped from claiming these rails because, following the description by metes aud bounds of the premises in her warranty deed to defendant, the deed continues as follows : " Being the same premises which were assigned by said commissioners in partition to Mary E. Harris, * * * together with all and singular the heredita- ments and appurtenances thereunto belonging, " etc. It is ar- gued that she thereby conveyed these rails, because they were a part of the realty when she received it in partitiou. We do not consider this statement in the deed to be, or to have been in- tended to be, a covenant that the premises were to be con- veyed to defendant in exactly the same condition as to fences, timber, and growing crops as they were when she received them. Such a construction would be absm-d. If the rails must pass under the warranty because of this clause, then she must also account, under such warranty, to the defendant for all the timber standing or crops growing upon the premises, when she received them by partition, which she may have removed since that time and before the sale to defendant. The deed cannot in reason be so construed. Affirmed, with costs. The other justices concurred. FIXTURES ANNEXATION BY VENDEE IN POSSESSION. Title to House Erected by Vendee in Possession under Executory Contract of Sale — Vendee Cannot Kemove it — Replevin Lies if He Does. Michigan Mut. L. Ins. Co. v. Cronk, 93 Mich. 49; 62 N. W. 1036. Montgomery, J, The defendant, on the 18th day of June, 1887, contracted in writing to purchase of one William L. Jenks the N. W. i of the S. W. ^ of section 19, township 7 N., range 16 E. The contract was in the usual printed form, and con- tained a covenant on the part of the defendant that he would not commit, or suffer any other person to commit, any waste or damage to said lands or buildings, except for firewood or other- wise, for home use, while clearing oflF the lands in the ordinary manner. Immediately after entering upon the lands he erected a small dwelling house thereon, and lived in it for two years. He then made default in his payments, and the plaintiff, to whom the contract had in the meantime been assigned by Jenks, ter- minated the contract, and required the defendant to surrender possession. The house was a one-story frame house, 20 by 26, and suitable for the purposes of a dwelling house to be used upon the land in question. After the removal of the house from the premises, it was placed upon a lot across the street, and plaintiff, after demand, brought replevin. The circuit judge directed a verdict for the plaintiff, and the defendant appeals. Two questions only are presented in appellant's brief. It is first claimed that replevin will not lie, because the house had become a fixture upon the land to which it was moved, and was, therefore, real estate ; second, that, as the house was occupied as a homestead by the defendant and his family, the wife was a necessary party. We think that when this house was erected upon the land held under contract it became a part of the realty, and as stich the property of the owner of the land, subject only to the rights of the purchaser therein. Kingsley v. McFarland (Me.), 19 Atl. Kep. 442; Milton v. Colby, 5 Mete. (Mass.) 78; Iron Co. V. Black, 70 Me. 473; Tyler Fixt. 78. It being sev- ered from the land, it became personal property, and replevin would lie unless it became affixed to the realty by the tortious act of the defendant in removing it and placing it upon other lands. But we think no such legal effect can be given to the defendant's wrong. The house was moved upon land of a third party. There was no privity of title between the ownership of the house and the ownership of the land to which it was removed. The cases cited by defendant of Morrison v. Berry, 42 Mich. 389 ; 4 If. W. Eep. 731 ; and Wagar v. Briscoe, 38 Mich. 587, do not WHAT IS REAL PKOPEKTY. apply. The house remaining personal property in the wrongful possession of defendant, it follows that no homestead right, which consists in an interest in lands, attached. The judgment is affirmed, with costs. The other justices concurred. Constructive Annexation of Fixture — Statue and Sun-dial located upon a Lawn for Ornamental Purposes. Snedeker v. Waring, 12 N. Y. 170. Paekek, J. The facts in this case are undisputed, and it is a question of law whether the statue and sun-dial were real or personal property. The plaintiffs claim they are personal property, having purchased them as such under an execution against Thorn. The defendant claims they are real property, having bought the farm on which they were erected at a fore- closure sale under a mortgage, executed by Thorn before the erection of the statue and sun-dial, and also as mortgagee in possession of another mortgage, executed by Thom after their erection. The claim of defendant under the mortgage sale is not impaired by the fact that the property in controversy was put on the place after the execution of the mortgage. Corliss V. Van Sagin, 29 Me. 115; Winslow v. Merchants' Ins. Co., 4 Mete. 306. Permanent erections and other improvements made by the mortgagor on the land mortgaged become a part of the realty, and are covered by the mortgage. In deciding whether the property in controversy was real or personal, it is not to be considered as if it were a question arising between landlord and tenant, but it is governed by the rules applicable between grantor and grantee. The doubt thrown upon this point by the case of Taylor v. Townsend, 8 Mass. 411, is entirely removed by the later authorities, which hold that, as to fixtures, the same rule prevails between mort- gagor and mortgagee as between grantor and grantee. 15 Mass. 159; 4 Mete. 306; 3 Edw. Ch. E. 246; Hilliard on Mortgages, 294, note f , and cases there cited ; and see Bishop v. Bishop, 11 N. Y. 123, 126. Governed, then, by the rule prevailing between grantor and grantee, if the statue and dial were fixtures, actual or construct- ive, they passed to the defendant as part of the realty. No case has been found in either the English or American courts deciding in what cases statuary placed in a house or in grounds shall be deemed real and in what cases personal prop- erty. This question must, therefore, be determined upon FIXTURES CONSTRDCTIVE ANNEXATION. 5 principle. All will agree that statuary exposed for sale in a workshop, or whatever it may be before it shall be permanently placed, is personal property ; nor will it be controverted that where statuary is placed upon a building, or so connected with it as to be considered part of it, it will be deemed real property, and pass with a deed of the land. But the doubt In this case arises from the peculiar position and character of this statue, it being placed in a court-yard before the house, on a base erected on an artificial mound raised for the purpose of supporting it. The statue was not fastened to the base by either clamps or cement, but it rested as firmly on it by its own weight, which was three or four tons, as if otherwise affixed to it. The base was of masonry, the seams being pointed with cement, though the stones were not laid in either cement or mortar, and the mound was an artificial and permanent erection, raised some two or three feet above the surrounding land, with a substantial stone foundation. If the statue had been actually affixed to the base by cement or clamps, or in any other manner, it would be conceded to be a fixture, and to belong to the realty. But as it was it could have been removed without fracture to the base on which it rested. But is that circumstance controlling? A building of wood, weighing even less than this statue, but resting on a sub- stantial foundation of masonry, would have belonged to the realty. A thing may be as firmly affixed to the land by gravita- tion as by clamps or cement. Its character may depend much upon the object of its erection. Its destination, the intention of the person making the erection, often exercises a controlling influence, and its connection with the land is looked at princi- pally for the purpose of ascertaining whether that intent was that the thing in question should retain its original chattel character, or whether it was designed to make it a permanent accession to the lands. By the civil law, columns, figures and statues, used to spout water at fountains, were regarded as immovable, or real. Pan- dects, lib. 19, tit. 1, § 17, vol. 7,byPolhier, 107; though it was inferred that statues resting on a base of masonry were not immovable, because they were there, not as part of the con- struction, but as ornaments. Corp. Juris Civ., by Kreigel, lib. 19, tit. 1, § 17; Poth. Pand. 109; Burrill's Law Die. " Affixus." But Labeo held the rule to be " ea quce ppyrpetui usus causa in cediflciis sunt, mdificii esse; quoB vero ad prcesens, non esse cBdificii;" thus making the kind of property depend upon the question whether it was designed by the proprietor to be nermanent or temporary, or, as it was generally called by the 6 WHAT IS EEAL PROPERTY. civilians, " its destination;" Corp. Jur. Civ., by Kreigel, lib. 19, tit. 1, § 17. And Pothier says that when, in the construction of a large vestibule or hall niches are made, the statues attached (" attachdes") to those niches make part of the house, for they are placed there ad integrandam domum. They serve to complete that part of the house. Indeed, the niches being made only to receive the statues, there will fail to be anything in the vestibule without the statues; and, he says, it is of such statues that we must understand what Papimanus says: " Sigilla et statucB affixce, instrumento domus non continentur, sed domus portiosunt: Pothier de Communaut^, § 56. By the French law, statues placed in a niche made expressly to receive them, though they could be removed without fracture or deterioration, are immovable, or part of the realty. Code Nap., § 525. But statues standing on pedestals in houses, court-yards, and gardens retain their character of " movable " or personal. 3 Touillier, Droit Civil de France, 12. This has reference to statues only which do not stand on a substantial and permanent base or separate pedestal made expressly for them. For when a statue is placed on a pedestal or base of masonry constructed expressly for it, it is governed by the same rule a« when placed in a niche made expressly to receive it, and is immovable. 2 Eepertoire Generale, Journal du Palais, by Ledru Eollin, 518, § 139. The statue in such case is re- garded as making part of the same thing with the permanent base upon which it rests. The reasons for the French law upon this subject are stated by the same author in the same work, page 617, § 129, where the rule is laid down with regard to such ornaments as mirrors, pictures, and statues, that the law will presume the proprietor intended them as immovable, when they cannot be taken away without fracture or deterioration, or leav- ing a gap or vacancy. A statue is regarded as integral with the permanent base upon which it rests, and which was erected ex- pressly for it, when the removal of the statue will offend the eye by presenting before it a distasteful gap ('♦ vide choquant"), a foundation and base no longer appropriate or useful. lb., § 139. Things immovable by destination are said to be those objects movable in their nature, which, without being actually held to the ground, are destined to remain there perpetually attached for use, improvement, or ornament. 2 Ledru Rollin, Repertoire Generale, 514, § 30. I think the French law, as applicable to statuary, is in accord- ance with reason and justice. It effectuates the intention of the proprietor. No evidence could be received more satisfactory of FIXTURES CONSTKUCTIVE ANNEXATION. 7 the intent of the proprietor to make a statue a part of his realty than the fact of his having prepared a niche or erected a perma- nent base of masonry expressly to receive it ; and to remove a statue from its place, under such circumstances, would produce as great an injury and do as much violence to the freehold, by leaving an unseemly and uncovered base, as it would have done if torn rudely from a fastening by which it had been connected with the land. The mound and base in this case, though de- signed in connection with the statue as an ornament to the grounds, would, when deprived of the statue, become a most objectionable deformity. There are circumstances in this case, not necessary under the French law, to indicate the intention to make the statue a per- manent erection, but greatly strengthening the presumption of such intent. The base was made of red sandstone, the same material as the statue, giving to both the statue and base the appearance of being but a single block, and both were also of the same material as the house. The statue was thus peculiarly litted as an ornament for the grounds in front of that particular house. It was also of colossal size, and was not adapted to any other destination than a permanent ornament to the realty. The design and location of the statue were in every respect appro- priate, in good taste, and in harmony with the surrounding objects and circumstances. I lay entirely out of view in this case the fact that Thom tes- tified that he intended to sell the statue when an opportunity should offer. His secret intention in that respect can have no legitimate bearing on the question. He clearly intended to make use of the statue to ornament his grounds, when he erected for it a permanent mound and base ; and a purchaser had a right sa to infer and to be governed by the manifest and unmistakable evidences of intention. It was decided by the Court of Cassa- tion in France, in Hornelle v. Enregistr, 2 Ledru Eollin, Journal du Palais, Repertoire, etc., 214, that the destination which gives to movable objects an immovable character results from facta and circumstances determined by the law itself, and could neither be established nor taken away by the simple declarations of the proprietor, whether oral or written. There is as much reason in this rule as in that of the common law, which deems every person to have intended the natural consequences of his own acts. There is no good reason for calling the statue personal be- cause it was erected for ornament only, if it was clearly designed to be permanent. If Thom had erected a bower or summer- house of wicker-work, and had placed it on a permanent f ounda- 8 WHAT IS EEAL PROPERTY. tion in an appropriate place in front of his house, no one would doubt it belonged to the realty ; and I think this statue as clearly belongs to the realty as a statue would, placed on the house, or aa one of two statues placed on the gate-posts at the entrance to the grounds. Au ornamental monument in a cemetery is none the less real property because it is attached by its own weight alone to the foundation designed to give it perpetual support. (See to that effect, Oakland Cemetery Co. v. Bancroft, 161 Pa. St. 197.) It is said the statues and sphinxes of colossal size which adorn the avenue leading to the Temple of Karnak, at Thebes, are se- cured on their solid foundations only in their own weight. Yet that has been found sufficient to preserve many of them undis- turbed for 4,000 years. Taylor's Africa, 113, etseq. And if a traveler should purchase from Mehemet Ali the land on which these interesting ruins rest, it would seem quite absurd to hold that the deed did not cover the statues still standing, and to claim that they were the still unadministered personal assets of the Ptolemies, after an annexation of such long duration. No legal distinction can be made between the sphinxes of Thebes and the statue of Thom. Both were erected for ornament, and the latter was as colossal in size and as firmly annexed to the land as the former, and by the same means. I apprehend the question whether the pyramids of Egypt, or Cleopatra's Needle are real or personal property does not de- pend on the result of an inquiry by the antiquarian whether they were originally made to adhere to their foundations with wafers, or sealing wax, or a handful of cement. It seems to me puerile to make the title depend upon the use of such or of any other ad- hesive substances, when the great weight of the erection is a much stronger guarantee of permanence. The sun-dial stands on a somewhat different footing. It was made for use as well as for ornament, and could not be useful except when firmly placed in the open air and in the light of the sun. Though it does not appear that the stcjue on which it was placed was made expressly for it, it was appropriately lo- cated on a solid and durable foundation. There is good reason to believe it was designed to be a permanent fixture, because the material of which it was made was the same as that of the house and the statue, and because it was in every respect adapted to the place. My conclusion is, that the facts in the case called on the judge of the circuit to decide, as a matter of law, that the property was real, and to nonsuit the plaintiff; and if I am right in this con- clusign, the judgment of the Supreme Court should be reversed. SEPARATE ESTATE IN COAL MINES. 9 Estate In Coal Mines Separate from Estate in Surface. Plummer v. Hillside Coal & Iron Co., 160 Pa. St. 483 ; 28 A. 853. Appeal from court of common pleas, Lackawanna County; Fred. W. Gunster, Judge. Trespass q. c. by Emma A. Plummer against the Hillside Coal & Iron Company and the Lackawanna Coal Company, Limited. Judgment for defendants. Plaintiff appeals. Af- firmed. Williams, J. The learned counsel for the appellant states the point in controversy very fairly and clearly in the opening sentence of his printed argument. He says, " The contention in this case is confined to the effect and subsequent history of the Calendar lease dated the 1st of October, 1828." His po- sition is that the lease granted only an incorporeal right to the lessee, to be exercised upon the premises covered by the lease. The appellees, on the other hand, contend that it granted the coal in place, under the land, absolutely. The words of the in- strument upon which this question depends may be put together thus: " Samuel Calendar * * * doth lease and to farm let to Thomas Merideth * * * all the land that he now holds, * * * and the lease is to continue for the term of one hun- dred years from this day. Possession of the leased premises shall extend only to their use as a coal field. The lessee shall have full power and possession to search for coal anywhere on the leased premises, in any manner he may think proper, to raise the coal, when found, from the beds ; to enter and carry away coal ; and to sell the same for his own benefit and profit. He may occupy whatever land may be useful or necessaiy as coal yards, * * * for roads for transporting the coal ; and in case it may prove necessary for securing the full enjoyment of the premises afoi'esaid as a coal field, as aforesaid, then the said Samuel covenants and agrees to execute such further writings as counsel learned in the law may deem proper." The purchase money or price of the coal is fixed at $200. If the coal proved abundant, and of a given thickness, then another $100 was to be paid. In addition to this the sum of $1 per annum was to be paid, as rent. The lessor reserved out of this grant the right, for himself and his heirs, to take coal for their own use, so long as they should reside on the land. This in- strument contemplated a sale of the coal under the leased prem- ises at a fixed price, to be increased $100 if the quantity of coal leached the proportions described in it. The right of removal was to be exercised within 100 years. The fact that the instru- 10 WHAT IS REAL PROPERTY. ment is in the form of a lease is not material, when the character of the transaction is apparent. Kingsley w. Iron Co., 144 Pa.. St. 613; 23Atl. 250; Montoothw. Gamble, 123 Pa. St. 240; 16 Atl. 594. A written contract, though not under seal, grant- ing the privilege of digging all the coal or ore on the vendor's land, is equivalent to a conveyance of the title to the coal or ore in fee. Fairchild v. Furnace Co., 128 Pa. St. 485 ; 18 Atl. 443, 444. Such a conveyance operates to sever the surface from the underlying stratum of coal ; and after such severance the contin- ual occupancy of the surface by the vendor is not hostile to the title of the owner of the underlying estate, and will not give title under the statute of limitations. To affect the title of th& owner of the coal, there must be an entry upon his estate, and an adverse possession of it. Armstrong v. Caldwell, 63 Pa. St. 294. But the contention that a right to mine coal in the land of another is an incorporeal one cannot be successfully main- tained. The grant of such a right is a grant of an interest in land. Hope's Appeal (Pa. Sup. ), 3 Atl. 23. When the grant is, in terms or in effect, a grant of all the coal on the lessor'a land, this amounts to a severance of the coal from the surface^ and vests a title to the underlying stratum in the grantee. San- derson V. City of Scranton, 105 Pa. St. 469. This underlying estate may be conveyed under the same general rules, as to notice as to recording, and as to actual possession, as the sur- face. After such a severance the possession of the holder of each estate is referable to his title. The owner of the surface can no more extend the eflFect of his possession of his own es- tate downward than the owner of the coal stratum can extend his possession upward, so as to give him title to the surface^ under the statute of limitations. The owner of the surface can be affected only by the invasion of the surface. The owner of the underlying stratum is not bound to take notice of the inva- sion of the estates that do not belong to him, but when his own estate is invaded he is bound to take notice. The conclusion thus reached disposes of the title by possession set up by the plaintiff, and of her right to recover in this case. The appellant cites Oil Co. v. Fretts, 152 Pa. St. 451 ; 25 AtL 732; Menish v. Stone, 152 Pa. St. 457; note 25 Atl. 732, — and other cases in which oil leases were considered , and the rights of the lessors and lessees defined. A lease granting to the lessee the right to explore for oil, and, in case oil is found in pay- ing quantities on the leased premises to drill wells and raise the oil, paying an agreed royalty therefor, has been held to convey no interest in the land, beyond the right to enter and explore, unless the search for oil proves successful. If it proves unsuc- SEPARATE ESTATE IN COAL MINES. 11 cessful, and the lessee abandons its future prosecution, his rights under the lease are gone. So it might be with a similar lease of lands supposed to contain coal. If the lessee entered, explored the leased premises, and, finding nothing, gave up the search, he would no doubt be held to the same rules, upon the same pro- visions in the lease, as were applied in the case cited. The dif- ference in the nature of the two minerals, and the manner of their production, have, however, resulted in considerable differ- ences in the forms of the contracts of leases made use of. When oil is discovered in any given region, the development of the region becomes immediately necessary. The fugitive char- acter of oil and gas, and the fact that a single well may drain a considerable territory, and bring to the suface oil that when in place, in the sand rock, was under the lands of adjoining own- ers, makes it important for each land owner to test his own land as speedily as possible. Such leases generally require, for this reason, that operations should begin within a fixed num- ber of days or months, and be prosecuted to a successful end, or to abandonment. Coal, on the other hand, is fixed ia loca- tion. The owner may mine when he pleases, regardless of operations around him. Its amount and probable value can be calculated with a fair degree of business certainty. There is no necessity for hastenor moving ^anjoassM with adjoiningowners. The consequence is that coal leases are for a certain fixed term, or for all the coal upon the land leased, as the case may be. The rule of Oil Co. v. Fretts, supra, is not capable of applica- tion to the lease made by Calendar to Merideth in 1828, for several reasons : First, the Calendar lease is, in effect, a sale of all the coal in the leased premises, and consequently a sever- ance of the surface therefrom. Second, it is for 100 years. All idea of haste in development or operating is excluded by the terms of the instrument, and the time for commencing the work of mining is left to the discretion of the lessee. Third, the consideration of the grant was, not the development of the mineral value of the land, but the price fixed by the agreement, and actually paid to the lessor in money. Upon a careful examination of the several assignments of error, we are all of opinion that the judgment must be affirmed. Judgment will be entered accordingly. 12 ESTATES IN FEE SIMPLE. CHAPTER III. ESTATES IN FEE SIMPLE. Truesdell v. Lehman, 47 N. J. Eq. 218; 20 A. 391. EwingB. Shanahan, 113 Mo. 188; 20 S. W. 1065. Siddons v. Cockrell, 131 111. 653; 23 N. E. 568. Words of Liimitatlons in a Deed — Heirs Necessary, in Absence of Statute to the Contrary. Truesdell v. Lehman, 47 N. J. Eq. 218; 20 A. 391. Green, V. C. Warren Truesdell, April 11, 1878, obtaiued a judgment in the Supreme Court of this State against Michael K. Kenny and others, for $296.41. Execution was issued, and returned unsatisfied, and the whole amount of the judgment remains unpaid. Bridget E. Cheshire, by a deed of bargain and sale dated January 12, 1875, conveyed to the said Michael R. Kenny certain property in the city of Newark, abutting on French and Peat streets, consisting of four lots, the whole tract being 100 feet square. The property seems to be still unim- proved and unoccupied. The deed referred to contains no words of inheritance, being drawn to the grantee and his assigns, not to his heirs, and therefore conveyed only a life-estate to Michael R. Kenny. Kearney v. Macomb, 16 N. J. Eq. 189 ; Weller v. Rolason, 17 N. J. Eq. 15. Michael R. Kenny died intestate 10 or 12 years ago, leaving Horace J. Kenny, Cecelia R., wife of John A. Flintoff, James Kenny, Lignori Kenny, and Sylvester J. Kenny, his children and heirs at law. Ce- celia R. Flintoff died before the filing of this bill, leaving George S. Flintoff and Cecelia K. Flintoff, the infant defendants, her heirs at law. Sylvester J. Kenny, Lignori Kenny, and Horace J. Kenny, after their father's death, executed and delivered to Frank M. McDermitt a deed of bargain and sale dated October 24, 1889, for the equal undivided three-fourths part of the said tract. Bridget E. Cheshire, the original grantor, by deed of bargain and sale dated November 23, 1889, conveyed the four lots to Sylvester J. Kenny in fee. He, by like deed of same date, conveyed to Frank M. McDermitt, who, by like deed dated November 30, 1889, conveyed the same to the defendant Charles A. Lehman. The bill alleges that, while the original deed from Bridget E. Cheshire to Michael R, Kenny in fact only conveyed a life-estate, the parties to it intended that it should convey an estate in fee simple, but by a clerical mistake, the word " heirs " was omitted from the granting and habendum clauses, of which omission both the grantor and grantee were ignorant, and WORDS OF LIMITATIONS IN A DEED. 13 always supposed the deed conveyed an absolute estate of inherit- ance. It prays that the deed be reformed by inserting the word " heirs," so that an estate in fee-simple may be decreed to have passed thereby, in accordance with the intention of the parties ; and that, after such reformation, the said land may be charged with liability for the payment of complainant's said judgment. There can be no doi}bt that Bridget E. Cheshire sold and Michael R. Kenny bought the fee of the premises ; and that they intended and supposed the original deed conveyed such an estate. That he so believed is shown by the fact that, three days after its date, he conveyed a portion of it in fee to the city of New- ark, for the purpose of a street. Bridget E. Cheshire has been examined as a witness, and testified that, when she sold the property to Michael R. Kenny, and made a deed to him, shesold all her interest in the land to him — she " sold it out and out ; ' ' that she signed the second deed to Sylvester J. Kenny because she was told, by those who brought it to her, that a word was missing in the first deed, and that she never before knew there was a mistake iu the first deed; that she was paid nothing for the last conveyance. It is clear it was the intention of the par- ties to convey the fee, and that the omission of the word " in- heritance" was not by the act or procurement, or with the knowledge of either of them, and that the deed did not accom- plish the intentions of the parties through the mistake of the draughtsman. The satisfactory proof of these facts would war- rant a decree that the deed should be reformed, if the proper parties are in court, and no interests have intervened which are entitled to prior protection. Kearney v. Macomb, 16 N. J. Eq. 189 ; Weller t;. Eolason, 17 N. J. Eq. 13; Wanner v. Sisson,29 N. J. Eq. 141. Where it clearly appears that a deed, drawn professedly to carry out the agreement of the parties previously entered into, is executed under the misapprehension that it really embodies the agreement, whereas, by mistake of the draughts- man, either as to fact or law, it fails to fulfill that purpose, equity will correct the mistake by reforming the instrument in accordance with the contract. Wintermute's Ex'rs v. Snyder's Ex'rs, 3 N. J. Eq. 489-500 ; Hendrixson v. Ivlns, 1 N. J. Eq. 562-568; Hopper w. Lutkins, 4 N. J. Eq. 149-154; Green v. Railroad Co., 12 N. J. Eq. 165; Hunt v. Rousmaniere, 1 Pet. 13; Higinbotham v. Burnet, 5 Johns. Ch. 183 ; Eisher u. Fields, 10 Johns. 495; Story Eq. Jur., § 115. Is the complainant in a position to ask this court to make such a decree? He is a judgment creditor of Michael R. Kenny. During Kenny's life, and the continuance of the life-estate, that interest was subject to levy and sale under execution on the 14 ESTATES IN FEE SIMPLE. judgment, but the interest which Kenny had in the fee was an equitable one only. Where words of inheritance are omitted by mistake from a conveyance, contrary to the intentions of the parties, a trust in fee may be considered as created, which a commit malicious waste so as to destroy the estate which is called « equitable waste,' for in that case the court of chancery will not only stop him by injunction, but will also order him to re- pair if possible the damage he has done." In 10 Bac. Abr. tit. " Waste," p. 469, it is said : " So, where a lease was made by a bishop for twenty-one years without impeachment of waste, of land that had many trees upon it, and the tenant cut down none of the trees until about half a year before the expiration of his term, and then began to fell the trees, the court granted an in- junction; for though he might have felled trees every year from the beginning of his term, and then they would have been growing up again gradually, yet it is unreasonable-that he should let them grow till towards the end of his term, and then sweep them all away ; for, though he had power to commit waste, yet this court will model the exercise of that power," citing Abra- ham V. Bubb, Freem. Ch. 53. At the common law no prohibition against waste lay against the lessee for life or years deriving his interest from the act of the party. The remedy was confined to those tenants who derived their interest from the act of the law, but the timber cut was, at common law, the property of the owner of the inheritance, and the words in the lease " without impeach- ment of waste" had the effect of transferring to the lessee the property of the timber. Bowles' Case, 11 Coke, 79; Co. Litt. 220a. The modern remedy in chancery by injunction is broader than at law, and equity will interpose in many cases, and stay waste where there is no remedy at law. Chancery will interpose when the tenant affects the inheritance in an unreasonable and unconscientious manner, even though the lease be granted with- out impeachment of waste. 4 Kent. Coram. (13th Ed.) 78; Perrot v. Perrot, 3 Atk. 94 ; Aston v. Aston, 1 Ves. Sr. 264 ; Vane v. Barnard, 2 Vern. 738 ; Kane v. Vanderburgh, 1 Johns. Ch. 11. In the case of Kane v. Vanderburgh, supra, it was said: " Chancery goes greater lengths than the courts of law in staying waste. It is a wholesome jurisdiction, to be lib- erally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the court," In this State an action on the case for waste is author- ized by chapter 271, How. St. This has superseded the com- mon-law remedy, and relieves the tenant from the penal con- sequences of waste under the statute of Glouchester, as he now recovers no more than the actual damages which the premises have sustained, while that statute gave by way of penalty the forfeiture of the place wasted, and treble damages; and thia harsh rule was adopted by many of the American States by the> ESTATE DURtNG COVERTURE AND CURTESY. 53 «arly statutes. This statute giving a right of action in courts of law for waste does not, however, deprive the court of chancery of jurisdiction in proceedings to restrain threatened waste. There can be no doubt that the defendant in the present case has much of the character of a tenant in fee, but he cannot destroy the inheritance. He may take the timber for his own use, and do all those acts which a prudent tenant in fee would do. He cannot pull down the buildings or destroy them, or cut and destroy fruit trees, or those planted for ornament and shelter ; neither can he be permitted to entirely strip the land of all tim- ber, and convert into lumber, and sell it away from the inherit- ance. It is not claimed that the timber is being used for better- ments on the premises, but it is admitted that the life-tenant is selling for his own gain and profit. The demurrer was properly overruled. The decree of the court below will be affirmed, with <50sts. The other justices concurred. CHAPTER VI. ESTATES ARISING OUT OF MARITAL RELATIONS. SECTIONS I AND H. ESTATE DURING COVERTURE AND CURTESY. Bozarth v. Largent, 128 111. 95; 21 N. E. 218. McTigue V. McTigue, 116 Mo. 136; 22 S. W. 501. Marital Rights of Husband in Property of tlie Wife. Bozarth v. Largent, 128 HI. 95; 21 N. E. 218. Shope, J. This was an action of ejectment, brought by James Bozarth, Mary L. Bozarth, and Ida B. Cook, the heirs at law of Louisa Bozarth, deceased, against William Largent, for the recovery in fee of the E. i S. W. i section 17, and the W. i of the S. W. i of section 8, all in township 23 N., range 2 W. of the third P. M., in Tazewell County. General issue was filed and a trial had, resulting in a finding and judgment for defendant. Plaintiffs below prosecute this writ of error. The facts are as follows : Louisa Bozarth, now deceased, being the owner in fee of said lands, which she had inherited from her father, was, on August 19, 1863, married to Asa Bozarth. They lived together as husband and wife until November 1, 1868, 54 ESTATES ARISING OUT OF MARRIAGE. when she died, intestate, leaving her husband, who is still living,, and the plaintiffs, her children and only heirs at law, surviving- her. On March 5, 1868, she and her husband executed their mortgage upon the lands in controversy, and other lands of the husband, to Anna R. Cohrs, to secure the payment of |2,50O evidenced by the note of Asa Bozarth, the husband, payable two years after date, with 10 per cent interest, payable annually, and containing a clause that, in default of the payment of the annua) interest, the principal should become due. The mort- gage was in the usual form, and contained a release of all home- stead rights ; and the wife acknowledged the release of all her rights of homestead, but the husband did not acknowledge the release of homestead, • his acknowl- edgment being simply that he acknowledged the mort- gage to be his free act and deed for the uses and purposes herein set forth. On March 27, 1873, Mary C. Mans, the assignee of said note and mortgage, filed her bill in the cir- cuit court of Tazewell County against the said Asa Bozarth, and the plaintiffs and others, for the foreclosure of said mortgage. Summons was duly served on all the defendants, and a guardian ad lilem was appointed for James, Ida B., and Mary Bozarth, the plaintiffs, they being then minors, who answered. At the May term, 1873, a decree was entered, foreclosing said mort- gage, and finding due thereon the sum of $2,973.75, and a soli- citor's fee of $125, provided for in the mortgage, and ordering a sale of the premises, etc. Sale was made under said decree July 12, 1873, to William Don Maus, for the sum of $3,048.84. The sale was made en masse, the master having failed to obtain bids on the several tracts when separately offered. Certificate of purchase was made and recorded the same day. At the May term, 1874, of the McLean circuit court, Albert Welch recov- ered a judgment against the said Asa Bozarth, John Boz- arth, and Elihu Bozarth for $1,250.50 and costs. Execution was issued to the sheriff of McLean County, and returned August 19, 1874, when Welch assigned the judg- ment to George W. Thompson. On the same day an alias exe- cution issued to the sheriff of Tazewell County, which came to that officer's hands August 20, 1874, and was levied on all the land sold under the foreclosure decree, and a certificate of levy was filed and recorded August 31, 1874. On October 10, 1874, a certificate of redemption from the sale under the decree of July 12, 1873, was executed by the sheriff of Tazewell County, and recorded the same day. On October 31, 1874, the land was sold en masse by the sheriff to Welch for redemption money and costs. On January 14, 1875, after the term of office of the ESTATE DURING COVEETUEE AND CDETESY. 55 sheriff had expired, he made and delivered to Welch a deed for the premises, dating the same as of the day of sale. On the same day, Pratt, the then sheriff, also executed a deed to Welch for the lands on the same sale. Welch and wife, by their deed of December 1, 1875, conveyed the land to John Bozarth, and he, on May 22, 1882, conveyed the same to William Lar- gent, defendant in error, who went into possession of the same. At the common law a husband held in right of his wife all her lands in possession, and owned the rents and profits thereof absolutely. 1 Washb. Real Prop. 276 ; Tied. Real Prop,, § 90; Haralson v. Bridges, 14 111. 37; Clapp v. Inhabitants of Stoughton, 10 Pick. 463; Decker v. Livingston, 15 Johns. 479. The birth of issue was not necessary to this right of the hus- band, which continued during the joint lives of the husband and wife. It was called an estate during coverture, or the husband's freehold estate jure uxoris. Kibbie v. Williams, 58 111. 30; Butterfield v. Beall, 3 Ind. 203; Montgomery w. Tate, 12 Ind. 615 ; Croft v. Wilbar, 7 Allen, 248. It differed from curtesy initiate, in its being a vested estate in possession, while the latter is a contingent future estate, dependent upon the birth of issue. Wright's Case, 2 Md. 429-453. It is held in right of the wife, and was not added to or diminished when curtesy initiate arose. Subject to the husband's beneficial enjoyment during the coverture, the ownership remained in the wife, and, on dissolution of the marriage, was discharged from such estate of the husband. Stew. Husb. & W.,§ 146. Where there was marriage, seisin of the wife, and birth of issue capable of inheriting, the husband, by the common law, took an estate in the wife's land during coverture. This was an estate of tenancy by the curtesy intimated, and which would become consummate upon the death of the wife in the lifetime of the tenant. A tenant by the curtesy was seised of an estate of freehold, which was subject to alienation, and was liable to be taken on execution for his debts. Tied. Real Prop., § 101 ; Howey v. Goings, 13 111. 95 ; Jacobs v. Rice, 33 111. 369 ; Cole V. Van Riper, 44 111. 58 ; Beach v. Miller, 51 111. 206 ; Lang v. Hitchcock, 99 111. 550. The act of 1861, known as the " Married Woman's Act " provides : " That all the property, both real and personal, belonging to any married woman as her sole and separate prop- erty, or which any woman hereafter married owns at the time of her marriage, or which any married woman during coverture ac- quires in good faith from any person other than her husband, by descent, devise, or otherwise, together with all the rents, issues, increase, and profits thereof, shall, notwithstanding her mar- 56 ESTATES ARISING OUT OF MARRIAGE. riage, be and remain during coverture, her sole and separate property, under her sole control, and be held, owned, pos- sessed, and enjoyed by her the same as though she was sole and unmarried, and shall not be subject to the disposal, control, or interference of her husband, and shall be exempt from execu- tion or attachment for the debts of her husband." In this case, Louisa Bozartb, who was common source of title, was the owner of the land in controversy, as it is conceded, at the time of her marriage, August 19, 1863, to Asa Bozarth. The marriage hav- ing taken place after the act of 1861 had taken effect, and the wife being then the owner of the land in question, it was not, during her coverture, subject to the control, interference, or dis- posal of her husband, or liable for his debts or other obligations. The effect of the statute was to abrogate the husband's estate in her lands, or the estate he would have had at common law dur- ing the coverture, and consequently during that period he had no estate therein liable to execution or attachment. The act did away with the estate he would have had at common law, grow- ing out of the mere marital relation, and of his curtesy initiate ; and it therefore follows, if the wife had been living at the time of the redemption and sale by the creditor of her husband, that proceeding would not have divested any right of herself or hus- band, nor conferred any right upon the purchaser. The question, however, remains whether Asa Bozarth, the husband, on the death of his wife, in 1865, acquired an estate in her land as tenant by the curtesy. We have already seen that the property of a married woman, under the act of 1861, not- withstanding her marriage, was to be and remain during cover- ture her sole and separate property, and was not subject to the husband's control, or liable for his debts. The general effect of statutes of this kind is to destroy the marital rights of the hus- band in his wife's estate ; but a statute may exempt her property from his debts without in any way destroying his rights therein. Unless tenancy by the curtesy is destroyed by the statute by ex- press words or necessary implication, or by the wife's disposition of her property by virtue of her power over it, he will be held to have an estate by the curtesy at her death. The prevailing opinion seems to be that while separate property acts do suspend during coverture all the rights of a husbaud, or his creditors, in statutory separate property, they do not destroy curtesy, or pre- vent its vesting on her death, unless such an event is clearly excluded by the statute; as where the statute not only provides that the property of the wife shall be hers, etc., but also defines her husband's interest therein, if she dies intestate, in which case curtesy is excluded. Where she has power to alienate or charge ESTATE DURING COVERTURE AND CURTESY. 57 iher property, she may thereby defeat curtesy, but the statute must contain express words to enable her to convey alone ; and, also, when she has power of disposition of the property by will she may thereby defeat curtesy^ Stew. Husb. & W.,§§ 161,243; In re Winne, 2 Lans. 21 ; Hatfield v. Sueden, 54 N. Y. 280 ; Noble V. McFarland, 51 111. 226; Freeman v. Hartman, 45 III. 57 ; Cole v. Van Kiper, supra. It will be seen that the married woman's act of 1861 does not attempt to define the husband's rights in his wife's property after her decease, nor does it give her any power of disposal of her separate property, independent of the husband. The pur- pose and effect of the statute was to secure to the wife the con- trol of her separate property during coverture. During that period the husband's common-law rights in her property are suspended. We are of opinion that this act did not have the effect of destroying the estate by curtesy, but that, after the passage of that act, and prior to the passage of the act of 1874, the husband, on his wife's death, leaving issue of the marriage, took a life-estate in her land as tenant by the curtesy. After the passage of the act under consideration, the estate, by the curtesy in the lands of the wife, did not vest in the husband until the death of the wife (Lucas v. Lucas, 103 III. 121; Beach V. Miller, 51 III. 206); but upon her death such estate became consummate, and vested in the husband in all respects as at com- mon law (Noble v. McFarland, Id, 226; Shortall v. Hinckley, 31 111. 219 ; Gay v. Gay, 123 III. 221 ; 13 N. E. Eep. 813; Cast- ner v. Walrod, 83 III. 171). It follows that we are of opinion that upon the death of the wife, in 1868, leaving issue surviving, the husband, Asa Bozarth, became seised of a freehold interest in the lands in controversy as tenant by the curtesy, and which was subject to seizure and sale on execution against him. The validity of the sale of the premises under the decree of foreclosure, and the redemption upon the execution issued upon the judgment in favor of Welch, and against the said Asa Bozarth, and the sale thereunder, are questioned by plaintiff in error. If the foreclosure sale was void for any cause, the judgment cred- itor redeeming therefrom acquired no title under his purchase, for the reason that his rights, like those of the purchaser at the sale under the decree of foreclosure, are dependent upon a valid judgment or decree and sale. Johnson v. Baker, 38 111. 99; Mulvey v. Carpenter, 78 III. 580 ; Keeling v. Heard, 3 Head, 592. It is objected that there was no sufficient service of summons upon the plaintiffs in error, who were defendants in the fore- closure suit. The return to the summons therein is as follows: 58 ESTATES AEISING OUT OF MARRIAGE. " Executed this writ by reading the same to the within-named Asa Bozarth, James Bozarth, Ida Bell Bozarth, and Mary Bozarth, and by delivering to each a true copy hereof, on the 10th day of April, 1872," and properly signed hy the sheriff. The process was returnable to the May term, 1873. The service was in apt time. The fact that the summons was read to the defendants did uo harm, and that part of the return may be dis- regarded. It is apparent that the circuit court had, therefore, jurisdiction of the subject-matter and of the parties and mere errors, or irregularities, if any, cannot be taken advantage of in this collateral proceeding. It is objected that the mortgaged premises were improperly sold en masse. If this be conceded, it would not render the sale void ; at most, it would only be ground for setting the sale aside on proper application to the court in apt time. It, however, appears that the land was offered by the master in separate par- cels, and, receiving no bids therefor, it was then offered and sold en masse. We are not prepared to say that the action of the master was not warranted. It is next objected that all the lands sold under the decree were redeemed en masse, and so sold to Welch under the execu- tion. A judgment creditor's right of redemption is no greater or more extensive than that of the original debtor. He cannot redeem in a case where the original owner cannot redeem, and within the time allowed by law for redemption by the debtor. In Hawkins v. Vineyard, 14 111. 26, a quarter section of land had been sold, of which the debtor owned only 65 acres, and it was held he could not redeem the 65 acres, but that he must redeem the whole or noue. A person cannot redeem an undivided share of land by paying his proportional share of the debt; and a part owner must redeem the whole. Durley v. Davis, 69 111. 133. A purchaser of a part of mortgaged land cannot redeem that part by paying his proportion of the debt. Meacham v. Steele, 93 111. 135. When the purchaser at a master's sale of an entire tract of land afterwards assigns an undivided interest in such purchase there can be no legal redemption of such undivided interest by a judgment creditor. Groves v. Maghee, 72 111. 526 ; Titsworth v. Stout, 49 111. 78. Section 25, c. 77, Eev. St., provides : " Any person entitled to redeem may redeem the whole or any part of the premises sold in like distinct parcels or quantities in which the same were sold. If the several mort- gaged tracts had been sold separately, redemption might have been made of any one or more of the tracts. In such case the amount that each tract sold for would furnish the basis for determining the amount to be paid in order to redeem ; but, aa ESTATE DURING COVERTURE AND CURTESY. 59 the several parcels of land were sold together, and for a gross sum, neither the debtor nor his judgment creditor could redeem without paying the full amount for which the same sold, with interest. The law gives the debtor 12 months in which to redeem, after which time any judgment creditor of the debtor may also redeem within 15 months from the date of the sale ; but, in so doing, the creditor will possess no greater right than his debtor had within the time limited for redemption by him. After the expiration of 12 months from the sale, the right of redemption of the judgment debtor is gone. He no longer has any interest in the premises, and cannot take advantage of mere irregularities in making redemp- tion by his judgment creditor, and his acquisition of title by virtue of a sale in pursuance of such redemption. The pur- chaser at the foreclosure sale makes no objection to the validity of the redemption, and, having accepted the money, the redemp- tion was complete. The title of Asa Bozarth being gone by his failure to redeem within the time allowed by law, he was not injured by a sale en masse on the execution, if, indeed, the sale could have been otherwise made. There is no force in the objection that the redemption should have been made in the name of Thompson, assignee of Welch, the judgment creditor. Sweezy v. Chandler, 11 111. 445. It in no way concerns the plaintiffs in error whether redemption was made in the name of the plaintiff in the judgment against Asa Bozarth or in the name of his assignee. No proof was made or offered at the trial tending to show that the premises, when sold under the decree of foreclosure, or when the mortgage was given, were occupied by the mortgagors, or either of them, as a homestead ; nor does it appear that they were at any time so occupied. Therefore, the question of the right of homestead was not presented for adjudication, and cannot now be consid- ered in this court. It may, however, be observed that the mortgage was executed and acknowledged before the act of 1872, relating to conveyances, took effect and the cases cited by counsel were determined under the provisions of that act. It is claimed that only the title of Louisa Bozarth passed by the sale under the decree of foreclosure, and therefore a creditor of her husband could not redeem from that sale. This conten- tion is not well grounded. While the husband, as we have seen, at the time of the execution of the mortgage had no estate in the land, it was necessary to the execution of a valid mortgage or conveyance of his wife's estate therein that he should join in the mortgage or conveyance, which he did. The mortgage was in the usual form, and contained covenants of both the husband 60 ESTATES ARISING OUT OF MAEEIAGE. and wife of good right to coDvey, seisin in fee, and of general warranty, and was suflBcient to pass not only the estate of the wife, but also all the estate, right, and interest of the husband in the property, which he than had, or might subsequently acquire. If he had no estate by the curtesy initiate or other- wise during the life of the wife, upon her death he took an estate for life in this land as tenant by the curtesy, which, under the covenants of the mortgage, inured to the benefit of the mortgagor. Gochenour v. Mowry, 33 111. 331. The sher- iff's deed was dated October 31, 1874, the date of the sale upon the redemption, but was, in fact, executed January 14, 1875, after the term of office of the sheriff had expired. Section 21 of the act relating to judgments, etc., provides that the redeeming judgment creditor shall be considered as having bid at the sale the amount of the redemption money paid by him, with interest thereon, and the costs of the redemption and sale; " and, if no greater amount is bid at such sale, the premises shall be struck off to such person making such redemption, and the officers shall forthwith execute a deed of the premises to him, and no other redemption shall be allowed." It is urged that the provision of the statute requiring the deed to be made "forthwith" is mandatory, and that a failure in this respect would render the sale void. We are not prepared to so hold. The purchaser is entitled to a deed forthwith in such case, but the failure of the sheriff to make the deed immediately after the sale will not render the redemption and sale invalid. This pro- vision of the statute must be regarded as directory only. It is lastly objected that Reeves, the sheriff, had no authority to make the deed after his term of office had expired. Section 30 of the act relating to judgments, etc., provides : " The deed shall be executed by the sheriff, master in chancery, or other officer who made such sale, or by his successor in office, etc." Freeman, in his work on Execution (section 327), says : " The officer who made the sale, whether he continues in office or not, is, in ordinary circumstances, and in the absence of statutory provisions to the contrary, the proper person to make the con- veyance. * * * When the term of the officer who made the sale terminates, his power to make the conveyance continues. In fact unless the new sheriff is specially authorized by statute, he seems to have no authority whatever to make a conveyance based on a sale made by his predecessor." We are of opinion that the deed made by the retiring sheriff, under our statute, was valid. If this is so, it will be unneces- sary to determine whether the deed made by his successor in office is good or not. In any event, under the section of the CUETEST IN wife's SEPARATE ESTATE. 61 statute quoted, by one deed or the other, the title acquired under the redemption sale passed to the grantee in said deeds. The plaintiffs claimed an estate in fee in the land in controversy, with a present right of possession. Their father having a li!fe- estate in the property, which has passed by virtue of the fore- closure sale, the redemption and sale thereunder, and the deeds in pursuance thereof to the defendant, they are not entitled to recover of the defendant the possession of said lands during the continuance of such estate. Until the termination of that life- estate by the death of the life-tenant, their right to a recovery must be postponed. Some questions are raised as to the effect of the proceedings before mentioned upon the fee to the land which is not now before us for consideration, and no adjudica- tion is made in respect thereof. The judgment of the circuit court will be affirmed. Curtesy in Wife's Separate Estate Wlien Barred. McTlgue V. McTigue, 116 Mo. 136 ; 22 S. W. 601. Bkace, J. This is an action in ejectment to recover possession of a lot in the city of St. Louis, in which the plaintiff had judg- ment, and the defendant appeals. Both parties claim title under Hannah McTigue, deceased; the plaintiff being the only child and heir of the said Hannah, who died intestate ; and the defendant the surviving husband of the said Hannah, and the father of the plaintiff. The title of the said Hannah was acquired by the following deed: "This deed, made and entered into this 12th day of January, 1876, by and between Adolphus Meier (widower), of the city of St. Louis, State of Missouri, party of the first part, and James Hallorau, of the same place, party of the second part, and Hannah McTigue, wife of John McTigue, party of the third part, witnesseth : That the said party of the first part, in consid- eration of the sum of seven hundred dollars to him in hand paid by said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby also acknowledged, do by these presents grant, bar- gain and sell unto the said party of the second part the follow- ing described lot or parcel of ground being and laying in the county of St. Louis, State of Missouri, to wit : Lot numbered fourteen in block No. 7, Adolphus Meier's first addition to the city of St. Louis, a plat of which is on file in the office of the recorder of deeds for St. Louis County, said lot having a front 62 ESTATES ARISING OUT OF MAKKIAGE. on the south line of Cozens street of twenty-five feet by a depth of one hundred and twenty-three feet, to an alley of fifteen feet wide ; to have and to hold the same, with all the rights, privi- leges and appurtenances thereto belonging or in anywise apper- taining, unto him, the said party of the second part, his heirs and assigns forever; in trust, however, to and for the sole and separate use, benefit, and behoof of the said Hannah McTigue. And the said James Halloran, party of the second part, hereby covenants and agrees to and with the said Hannah McTigue that he will suffer and permit her, without let or molestation, to have, hold, use, occupy, and enjoy the aforesaid premises, with all the rents, issues, profits and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband, and wholly free from his control and interference, debts, and liabilities, cur- tesy, and all other interests whatsoever, and that he will at any time and at all times hereafter, at the request and direction of said Hannah McTigue, expressed in writing, signed by her or by her authority, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises, or any part thereof, to do which full power is hereby given, and will pay over the rents, issues, profits and proceeds thereof to her, the said Hannah McTigue, and that he will, at the death of said Hannah McTigue, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times, as the said Hannah McTigue shall by her last will and testa- ment, or any other writing signed by her, or by her author- ity, direct or appoint; and the said Hannah McTigue shall have power at any time hereafter, whenever she shall from any cause deem it necessary or expedient, by any instrument in writing under her hand and seal and by her acknowledged, to nominate, and appoint a trustee or trustees in the place and stead of the party of the second part above named, which trus- tee or trustees, or the survivors of them, or the heirs of such survivors, shall hold the said real estate upon the same trust as above recited; and upon the nomination and appointment of such new trustees the estate in trust hereby vested in said party of the second part shall thereby be fully transferred and vested in the trustee or trustees so appointed by the said Hannah McTigue. And the said Adolphus Meier hereby covenants to warrant and defend the title to the said real estate against the lawful claims of all persons whomsoever, except all taxes, special or general, for the year 1876 ; and the said party of the second DOWER WHEN BARRED BY DIVORCE. 63 part covenants faithfully to perform and fulfill the trust herein created. In testimony whereof the said parties have hereunto set their hands and seals the day and the year first above written." The plaintiff, who is a minor suing by her next friend, the said James Halloran, trustee in said deed, claims the right to the possession of the premises as the only child and heir at law of her mother. The defendant is in possession, and has been ever since the death of his wife, and claims as tenant by the curtesy. There can be no doubt that by the terms of the deed an equit- able estate of inheritance was vested in the said Hannah, which, upon her death intestate, descended to the plaintiff as her only heir at law, and that such estate was her separate, equitable estate. It is also well-settled law in this State that the husband is entitled to curtesy in the equitable estate of the wife of which she died seised, although such estate was limited to her separate use. Alexander v. Warren, 17 Mo. 228 ; Baker v. Nail, 59 Mo. 265 ; Tremmel v. Kleiboldt, 75 Mo. 255 ; 6 Mo. App. 249 ; Sol- tan V. Soltan, 93 Mo. 307 ; 6 S. W. Eep. 95; Spencer v. O'Neill, 100 Mo. 49 ; 12 S. W. Kep. 1054. Such seems to be the law generally in this country, except in those States where the estate of curtesy has been abolished by statute. Tied. Real Prop. (2d Ed.) § 105. And while " it is not competent at common law, in the grant to a woman of an estate of inheritance, to exclude her husband from his right of curtesy, a like rule does not prevail in equity, where an estate may be so limited as to give the wife the inheritance, and deprive the husband of curtesy, if the intent of the devisor or settler be express." 1 Washb. Real Prop. ( 5th Ed.), p. 175, § 15; 4 Amer. & Eng. Enc. Law, p. 965, note 3. As such was the evident intention expressed in the foregoing deed, the defendant's curtesy was barred, and the judgment of the circuit court so holding is affirmed. All concur, except Barclay, J., absent. SECTION III. DOWER. Van Cleaf v. Burns, 118 N. Y. 549; 23 N. E. 881. Hinchllffe v. Shea, 103 N. Y. 153; 8 N. E. 477. McKaigg V. McKaigg, 60 N. J. Eq. 325; 25 S. 181. Jones V. Fleming, 104 N. Y. 418; 10 N. E. 693. Stalgg V. Atkinson, 144 Mass. 664; 12 N. E. 364. Dower When Barred by Divorce. Van Cleaf v. Burns, 118 N. Y. 649; 23 N. E. 881; Appeal from supreme court, general term, second depart- 64 ESTATES ARISING OUT OF MAEKIAGE. ment, affirming a judgment entered upon the decision of the- court at special term. The plaintiff brought this action to recover dower in certain lands situate in the city of Brooklyn, of which one David Van Cleaf, deceased, was seised while he was her husband. She alleged in her complaint that she was married to said Van Cleaf on the 6th of July, 1875, and that he died November 12, 1884; that during said period he was seised and possessed of the prem- ises in question, and that the defendants are in possession thereof, claiming to own the same. Without denying any of said allega- tions, the defendant Catherine Burns answered, alleging that on the 9th of April, 1881, said David Van Cleaf, who was then a resident of the State of Illinois, was duly divorced from the plaintiff, on account of her misconduct, by the judgment of a court in that State which had jurisdiction of the subject-matter and of the parties. The trial court found the following facts : " That in an action in the circuit court of Cook County, 111., in which David Van Cleaf was plaintiff, and said Mary B. Van Cleaf was defendant, brought for a divorce and dissolution of the marriage for the cause and ground that said Mary B. Van Cleaf had willfully deserted and absented herself from said David Van Cleaf, her husband, without any reasonable cause, for the space of more than two years before the commencement of such action, which by the laws of Illinois was a ground for absolute divorce and dissolution of the bond of marriage, such proceedings were had that on April 9, 1881, judgment was granted and perfected therein in favor of said David Van Cleaf against said Mary B. Van Cleaf, dissolving the bond of marriage between them for the cause and ground aforesaid, which cause and ground was by said judgment adjudged to exist. That said court, in pronouncing said judgment, had jurisdiction of the subject-matter of the action and judgment, and of the parties thereto. That said David. Van Cleaf was at the time of said action and judgment domiciled in Chicago, in the State of Illinois; and said Mary B. Van Cleaf, on October 18, 1880, appeared in said action in person, and filed her answer in writing to the complaint, having first received notice of the commencement of the suit by the service on her in this State of the summons and complaint. That the plaintiff was during all the time above mentioned a resident of the city of Brooklyn, in the State of New York." The court found, as a conclusion of law, that the complaint should be dismissed upon the merits, with costs, to which the plaintiff duly excepted. The only proof given by either party on the trial was a stipula- tion admitting the facts as found. The case states that no other DOWER WHEN BARKED BY CUKTBST. 65 facts appeared ; and the parties stipulate, for the purpose of any appeal, that David Van Cleaf was seised in fee-simple of the premises in question between the date of his marriage to the plaintiff and the date of said divorce, and that such admission shall have the same effect as though found by the trial judge upon proper evidence. Vann, J. (after stating the facts as above). Our Eevised Statutes provide that " a widow shall be endowed of the third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage" (1 Rev. St., p. 740, § 1) ; but that, " in case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed" {Id., p. 741, § 8). It is further provided by the Code of Civil Procedure that, where final judgment is rendered dissolving the marriage in an action brought by the wife, her inchoate right of dower in any real property of which her hus- band then was, or was theretofore, seised, shall not be affected by the judgment ; but that, when the action is brought by the husband, the wife shall not be entitled to dower in any of his real property, or to a distributive share in his personal property. Sections 1759, 1760. These provisions of the Code replaced a section of the Eevised Statutes which provided that " a wife, being a defendant in suit for a divorce brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband's real estate, or any part thereof, nor to any distrib- utive share in his personal estate." 3 Rev. St. (6th Ed.), p. 157, § 61, repealed Laws 1880, c. 245, § 1, subd. 4. An absolute divorce could be granted only on account of adultery, either under the Revised Statutes or the Code. 3 Rev. St. (6th Ed.), p. 155, §§38-42; Code CivilProc, §§ 1756,1761. According to either, an action could be brought to annul, to dissolve, or to partially suspend the operation of the marriage contract. A marriage may be annulled for causes existing before or at the time it was entered into ; and the decree, in such cases, destroys the conjugal rela- tion a(> initio, and operates as a sentence of nullity. Jd. , § § 1742, 1754. A marriage contract may be dissolved, and an absolute divorce, or a divorce proper, granted for the single cause already mentioned. Such a judgment operates from the date of the decree by relieving the parties from the obligations of the mar- riage, although the party adjudged to be guilty is forbidden to remarry until the death of the other. It has no retroactive effect, except as expressly provided by statute. Wait v. Wait, 4 N. Y. 95. An action for a separation, which is sometimes called a " limited divorce," neither annuls nor dissolves the mar- riage contract, but simply separates the parties from bed and •66 ESTATES AKISING OUT OP MARRIAGE. board, either permanently or for a limited time. Code Civil Proc, §§ . 1762-1767. Neither the nature nor efCect of the judg- ment of divorce granted by the court in Illinois in favor of David Van Cleaf against the plaintiff appears in the record before us, except that the bond of marriage between them is stated to have been dissolved upon the ground that she had willfully deserted and absented herself from her husband, without reasonable cause, for the space of more than two years prior to the commence- ment of the action. It does not even appear that the decree ■would have the effect upon her right to dower in the State where it was rendered that is claimed for it here. Appar- ently, it simply dissolved the marriage relation; and whether it had any effect, by retroaction, upon property rights exist- ing at its date, is not disclosed. A judgment of a sister State can have no greater effect here than belongs to it in the State where it was rendered. Suydam v. Barber, 18 N. Y. 468. There is no presumption that the statutes of the State of Illinois agrees with our own in relation to this subject. Cutler v. Wright, 22 N. Y. 472 ; McCulloch v. Norwood, 58 N. Y. 562. If they do, the fact should have been proved, as our courts will not take judicial notice of the statutes of another State. Hos- ford V. Nichols, 1 Paige, 220; Chanoine v. Fowler, 3 Wend. 173; Sheldon V. Hopkins, 7 Wend. 435; Whart. Ev., §§ 288, 300. Adequate force can be given to the Illinois judgment, by recognizing its effect upon the status of the parties thereto, without giving it the effect contended for by the respondent. Barretts. Failing, 111 U. S. 523 ; 4 Sup. Ct. Eep. 598 ; Mansfield V. Mclntyre, 10 Ohio, 27. The judgment appealed from, therefore, can be affirmed only upon the ground that a decree dissolving the marriage tie, ren- dered in another State, for a cause not regarded as adequate by our law, has the same effect upon dower rights in this State as if it had been rendered by our own courts adjudging the party proceeded against guilty of adultery. This would involve as a result that the expression, " misconduct of the wife," as used in the Revised Statutes, means any misconduct, however trifling, that by the law of any State is ground for divorce. Thus it might happen that a wife who resided in this State, and lived in strict obedience to its laws, might be deprived of her right to dower in lands in this State by a foreign judgment of divorce, based upon an act that was not a violation of any law of the State of her residence. It is important, there- fore, to determine whether the provision that a wife shall not be endowed in case of divorce dissolving the marriage contract for her misconduct refers only to that act which is misconduct DOWER WHEN BAKEED BY DIVORCE. 67 authorizing a divorce in this State, or to any act which may be termed ''misconduct," and converted into a cause of divorce by the legislature of any State. In Schiffer v. Pruden, 64 N. Y. 47, 49, this court, referring to said provision of the Revised Statutes, said that " the misconduct there spoken of must be her adul- tery ; for there is no other cause for a divorce dissolving the marriage contract." It had before said, in Pitts v. Pitts, 52 N, y. 593, that " a wife can only be barred of dower by a conviction of adultery in an action for divorce, and by the judgment of the court in such action." While these remarks were not essential to the decision of the cases then under consideration, they suggest the real meaning and proper application of the word " misconduct," as used in the Eevised Statutes, with reference to its effect upon dower. When the legislature said, in the chapter relating to dower, that a wife should not be endowed when divorced for her own misconduct ; and, in the chapter relating to divorce, that she should not be entitled to dower when convicted of adultery, — the sole ground for a divorce, — we think that, by misconduct, adultery only was meant, or that kind of misconduct which our laws recognize as sufficient to authorize a divorce. The sections relating to dower, and to the effect of divorce upon dower, are in pari materia, and should be construed together; and, when thus construed, they lead to the result already indicated. Beebe v. Estabrook, 79 N. Y. 246, 252. The repeal of section 48, which provided that the wife, if convicted of adultery, should not be entitled to dower, has not changed the result, as sections 1759 and 1760 of the Code have been substituted, leaving the law unchanged. They enact, in effect, that when judgment is rendered at the suit of the hus- band dissolving the marriage for the adultery of the wife, she shall not be entitled to dower in any of his real property. There is no change in meaning ; and the slight change in lan- guage, as the commissioners of revision reported, was to con- solidate and harmonize the new statute with the existing system of procedure. Throop Anno. Code, § 1760, note. The repealed section was pronounced in the Ensign Case, 103 N. Y. 284; 8 N. E. Rep. 544, "an unnecessary and superfluous provision as respects dower." It was also held in that case that while the relation of husband and wife, both actual and legal, is utterly destroyed by a judgment of divorce so that no future rights can thereafter arise from it, still ex- isting rights, already vested, are not thereby forfeited, and are taken away by only special enactment as a punishment for wrong. It follows that depriving a woman of her right to dower is a punishment for a wrongful act perpetrated by her. Is it prob- 68 DOWER WHEN BARRED BY CONVEYANCE. able that the legislature intended to punish as a wrong that which it had not declared to be wrong? If a divorce granted in another State for willful desertion relates back so as to affect, by way of punishment, property rights previously acquired, must not a divorce for incompatibility of temper, or any other frivolous reason, be attended with the same result? Does the penalty in- flicted upon the guilty party to a divorce granted in this State for a single and special reason attach to any judgment for divorce, granted in any State for any cause whatever, including, as is said to be the law in one State, the mere discretion of the court ? Our conclusion is that as nothing except adultery is, in this State, regarded as misconduct with reference to the subject of absolute divorce, no other misconduct is here permitted to deprive a wife of dower, even if it is the basis of a judgment of divorce law- fully rendered in another State, unless it expressly appears that such judgment has that effect in the jurisdiction where it was rendered, and as to that we express no opinion. The judgment should be reversed, and a new trial granted, with costs to abide event. All concur, except Follett, C. J., dissenting. Wife's Kenunciatlon of Dower of no Effect, if Husband's Conveyance is Invalidated for any Pnrpose. Hinchliffe v. Shea, 103 N. Y. 153; 8 N. E. 477. Andrews, J. The joinder by a married woman with her hus- band in a deed or mortgage of his lands does not operate as to her by way of passing an estate, but inures simply as a release, to the grantee of the husband, of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release attends the title derived from the husband, and concludes her from afterwards claiming dower in the premises, as against the grantee or mortgagee, so long as there remains a subsisting title or interest created by his conveyance. But it is the generally recognized doctrine that when the husband's deed is avoided, or ceases to operate, as when it is set aside at the instance of creditors, or is defeated by a sale on execution under a prior judgment, the wife is restored to her original situation, and may, after the death of her husband, recover dower as though she had never joined in the conveyance. Eobinson v. Bates, S Mete. 40; Malloney v. Horan, 49 N. Y. Ill; Ketzmiller v. Van Rensselaer, 10 Ohio St. 63; Littlefield v. Crocker, 30 Me. 192. In short, the law regards the act of the wife in joining in the WIDOW'S QUARANTINE. 69 •deed or mortgage not as an alienation of an estate, but as a renunciation of her inchoate right of dower in favor of the _grantee or mortgagee of her husband in and of the title or inter- est created by his conveyance. It follows, therefore, that her act in joining in the conveyance becomes a nullity whenever the title or interest to which the renunciation is incident is itself defeated. Scrib. Dower, c. 12, § 49. The wife's deed or mortgage of her husband's lands, cannot stand independently of the deed of her husband, whennot executed in aid thereof, nor can she by joining with her husband in a deed of lands to a stranger, in which she has a contingent right of dower, but in which the husband has no present interest, bar her contingent right. Marvin v. Smith, 46 N. Y. 571. These principles are, we thinjj, decisive of this case. The plaintiff's mortgagee has been defeated by the paramount title derived under the execution sale. It was the husband's mort- gage, and not the mortgage of the wife, except for the limited and special purpose indicated. The lien of the mortgage, as a charge on the lands of the husband has, by the execution sale, been subverted and destroyed ; nor can the security be converted into a mortgage of the widow's dower, now consummate by the death of her husband. This would be a perversion of its orig- inal purpose. Her act in signing the mortgage became a nullity on the extinguishment of the lien on the husband's lands. If on the execution sale there had been a surplus applicable to the mortgage, it might very well be held that the widow could not be endowed therein, except after the mortgage had been satisfied. The surplus would represent in part the mortgaged premises. See Elmendorf v. Lockwood, 57 N. Y. 322. We think the authorities require a reversal of the judgment. Judgment reversed, and the complaint dismissed, with costs. (All concur, except Miller, J., absent.) "Widow's Quarantine. McKaig V. McKaig, 60 N. J. Eq. 326; 25 A. 181. PiTNET, V. C. The bill is by a brother against brothers and sisters, asking for partition of land which descended to them from their father, George McKaig, deceased. There is no dis- pute as to the shares in which the land is held, and it clearly- appeared at the hearing that it could not be divided without great prejudice, and so there must be a sale. The bill alleges that Charles P. McKaig, one of the defendants, had been in the exclusive possession, and had enjoyed the rents and profits, of 70 ESTATES ARISING OUT OF MAEEIAGE. the premises from the death of the father, which occurred in February, 1879, up to the spring of 1888, a period of nine years, and had during that time cut and carried away therefrom, for his own use, a quantity of wood and timber; that such possession by Charles was had by virtue of an . agreement or understanding with the other heirs that he should pay an annual rent of $150 therefor, and that the widow of George McKaig was entitled, as dowress, to one-third of the rents and profits ; and it prays that an account may be taken of such rents and profits, and Charles be decreed to pay two-thirds of the same, or that the same may be deducted from his share of the pro- ceeds of the sale of the land. Charles McKaig only has answered, and he denies that he occupied the premises under any agree- ment or understanding with his brothers and sisters, but alleges, in substance, that he entered and kept possession as the tenant of the widow, who was entitled to such possession and to the rents and profits until her dower was assigned to her, which was never done. The serious and important question in the case is whether the widow of George McKaig, who died seised, was entitled to the exclusive possession and use of the premises in question under the second section of the dower act (Revision, p. 320), which enacts that, " until such dower be assigned to her, it shall be lawful for the widow to remain in and hold and enjoy the man- sion of her husband, and the messuage or plantation thereto belonging, without being liable to pay any rent for the same." The facts are as follows : The widow, Sarah McKaig, owned in her own right a farm, upon which was a dwelling and the ordi- nary outbuildings, and in and upon which she resided with her husband for many years before and at the time of his death. This was their only home and mansion. Immediately adjoining this farm of the wife — the dividing line running near the build- ings — were situate the lands in question, belonging to the hus- band. They comprised plow, meadow, and wood land, the proportion of plow land being small, and containing 148 acres in three parcels of 98, 33, and 17 acres, respectively, of which, however, only the larger one adjoined the wife's farm. The husband worked and used these lands in common with his wife's lands, making no distinction. There was no dwelling or other buildings upon them. The question is, was the widow entitled to quarantine in them? I can find no judicial expression or decision on the point. The industry of counsel was unable to cite any. Nevertheless, I think the question reasonably free from doubt. There is here no " mansion house of the husband," and without it I am unable widow's quarantine. 71 to perceive how there can be any statutory quarantine. It is the messuage or plantation belonging "thereto," — that is, to the mansion house of the husband, — of which the widow is given the exclusive right until her dower is assigned. The statute does not give her such right in the messuage and plantation of her husband belonghig to and used with her own mansion. The words "belonging to," as here used, clearly indicate uniformity of title, as well as contiguity of location and community of use. The right given by this enactment is greater than that enjoyed at the common law. It is not a declaration of what the law was, but a decided change in it ; and, while our courts have manifested a disposition to construe this section favorably towards the widow, I can find in such disposition no warrant for changing what seems to me to be the plain meaning of the language used.. I think the widow was not entitled to the exclusive use of these lands, and hence that the son, who was in possession, must account for two-thirds of the rents and profits. With regard to the amount of the rents and profits, the proof shows that the defendant Charles moved into the mansion house with his mother immediately after his father's death. His mother was far advanced in years, and infirm, and was, besides, at the time, quite ill from some temporary disorder, from which, however, she so far recovered as to live eight or nine years. The complainant and his brothers and sisters other than Charles understood and sup- posed, and there was evidence tending to show, that Charles- entered under an agreement and understanding that he was to pay rent at the rate of $150 per year for the whole farm, in- cluding both the part belonging to his mother and that belonging to his father, and that the same should be applied to the sup- port of his mother during her life ; in other words, that he was to support his mother for the use of both farms, and his brothers and sisters supposed that this was the arrangement until after their mother's death, when, to their surprise, Charles made a claim against her estate for a large sum ($1,314), for her sup- port and maintenance from her husband's death, and this claim, after litigation in the orphans' court, was sustained, and Charles received payment therefor without any allowance for the use of either farm. This result could only have been arrived at on the ground that the arrangement and understanding upon which the other heirs supposed that Charles was occupying these premises had no legal existence, and the heirs are therefore free to demand an account of the rents and profits in this suit. Much evidence was given as to the annual value of the land here involved. It would be profitless to discuss it.. 72 ESTATES ARISING OUT OF MAEEIAGE. The amount involved is trifling, and I will simply state the result at which I have arrived. I find the value of the use of the land here in question to be $36 a year over and above taxes, and the defendant must account for two-thirds of that sum, or $24 a year for nine years, making $216. The wood cut by him I find to be worth $25. He should pay inter- est on these sums from April 1, 1888. The defendants did not set up the statute of limitations. I think the defendants, other than the complainant, though they have not answered or filed cross- bills, are entitled to the benefit of this adjudication, although, strictly speaking, made only upon complainant's prayer. The practice in partition cases does not require that each party should assert his rights by a separate pleading. To require them to do so would greatly increase the cost of the proceedings. Assignment of Dower Against Common Klght. Jones V. Fleming, 104 N. Y. 418; 10 N. E. 693. Eakl, J. The plaintiff commenced this action to recover dower in certain lands mentioned in the complaint, as the widow of James Jones, deceased, against his children and heirs at law. The defendants interposed as a defense to the action that, at the time of plaintiff's marriage with Jones, she had another husband living, and also that she had released, and agreed to release, any dower right that she had in the land. Upon the trial before the referee appointed to hear and determine the action, it appeared that the plaintiff was married to one Firth in 1855 ; that she lived with him as her husband until 1861, when they broke up housekeeping, and never thereafter lived together; that in Octo- ber, 1875, claiming that Firth had absented himself from her more than five successive years, without being known to her to be living during all that time, she married Jones; and that he died on the 28th day of October, 1880, seised of the lands in which she claims dower. The defendants gave evidence tending to show that Firth had not absented himself, within the meaning of the statute ( 3 Eev. St. [7th Ed.] 2332, § 6), for five successive years, and claimed that her marriage with Jones was therefore null and void. They also offered to prove certain proceedings instituted in the Supreme Court in 1877 for the purpose of having Jones declared a lunatic, and for the appointment of a committee of his person and estate. The records of those proceedings show that the jury summoned for that purpose found him to be a lunatic since the fifteenth day of June, 1877, and incapable of government ASSIGNMENT AGAINST COMMON RIGHT. 73 of himself and the management of his estate; that there was a final order entered February 9, 1878, confirming the inquisition of the jury, and appointing William H. Miller committee of the person and estate of Jones ; and that the committee qualified by giving the requisite bond. The records in those proceedings were objected to by the plaintiff's counsel as incompetent and immaterial and were excluded by the referee. The defendants also offered in evidence a petition dated February 15, 1878, by Miller, the committee, addressed to the Supreme Court, which alleged, among other things, that while Jones was a lunatic he was induced by the plaintiff to deliver to her bonds, notes, and other choses in action amounting in the aggregate to $9,000 ; that she afterwards transferred and delivered some portions of the property to divers other persons ; and that she had delivered between $500 and $1,000 of such property to one Leavitt who then held the same ; and he prayed for an order authorizing him to commence an action against the plaintiff to annul her marriage with Jones, and also actions against her and Leavitt and other persons who might have any of the personal property of Jones in their possession to recover the same. They also offered in evidence an order of the Supreme Court made February 25, 1878, authorizing the commencement by the committee of the suits mentioned in the petition ; a summons and complaint in an action wherein Jones, by his committee, was plaintiff, and this plaintiff was defendant, to annul her marriage with Jones ; the answer of the defendant in that action ; a summons and complaint in the Supreme Court in an action by Jones, by Miller as committee, against the present plaintiff, commenced March 1, 1878, which complaint, among other things, alleged that Jones was the owner of personal property of the value of about $3,000 ; that his committee was entitled to the possession of the property, and that she declined to deliver the property to the committee, and unlawfully detained the same from him, and demanded judgment for the recovery of the property ; also the defendant's answer in that action, in which she admitted that she had possession of the property, but alleged that it had been given to her by Jones, and that she was the owner thereof; also a summons and complaint in an action in the Supreme Court by Miller, as committee of Jones, against Leavitt, commenced March 15, 1878, which complaint alleged that Jones was the owner of personal property of the value of $500, which the com- mittee was entitled to the possession of, and that Leavitt had converted the same, and demanded judgment for the value thereof ; also the answer of Leavitt, which admitted that he had possession of the property, but alleged that the same had been 74 ESTATES ABISINQ OUT OF MARRIAGE. delivered to him by Mrs. Jones, and that she was the owner thereof ; also a summons and complaint in an action in the Supreme Court, by Miller, as committee of Jones, against one Standring, commenced March 15, 1878, which complaint alleged that Jones was the owner of personal property of the value of about $4,000, which the committee was entitled to the possession of, that Standring had possession of the same, and declined and refused to deliver the same to the committee, and it demanded judgment for the recovery of the property ; and also the answer of Stand- ring, in which he alleged that the property had been left with him by Mrs. Jones for safe-keeping, and that the same was owned by her. The plaintiff objected to all the evidence thus offered as incompetent and immaterial, and the referee sustained the objection. The defendants then offered in evidence an agreement dated January 28, 1880, between the plaintiff, of the one part, and Ida V. Fleming, Ellen A. Van Ness, and Julia E. ZoUer, de- scribed as the only children and prospective heirs of James Jones, a lunatic, and William H. Miller, a committee, of the other part, which recited and stated as follows : " That, whereas, four suits have been commenced and are now pending in the Supreme Court, brought by said committee against the party of the first part, Mrs. Jones, and against persons representing her claims, as follows, to wit, [here the suits above mentioned are described,] it having been this day agreed between the parties that all of the said actions be discontinued, and the same having been discon- tinued, the said committee and said three daughters of James Jones have stipulated and agreed that of the property involved in said suits the sum of $3,400 shall be released to and is hereby delivered to said Gazena C. Jones, the receipt whereof is hereby confessed and acknowledged, and a general settlement being^ made this day between all the parties hereto, now, therefore, in consideration of the premises, and of the said $3,400 duly paid to me, I hereby release, transfer, assign, and set over to the said committee, and said three daughters of said James Jones, all my right, title, and interest, including my inchoate right of dower (if any such exists), of, in, and to any and all real estate that said James Jones had on the twelfth day of October, 1875, or that he has since acquired, and also of, in, and to all his personal estate, and of, in, and to any personal estate he may own at his death ; the intent being to release all right, inchoate or otherwise, that I have or may have in the estate of said James Jones; and in consideration of the premises, and of the said $3,400, hereby covenant and agree to and with said committee, and the three daughters of said James Jones before ASSIGNMENT AGAINST COMMON RIGHT. 7S named, that at any future time, on demand of the parties thereto, I will execute and deliver such further or other deeds, releases, or transfers as may be necessary to perfect this arrangement, and carry out the intention of the parties thereto, namely, the full and perfect release of all my inchoate or other rights in the property of said James Jones ; and I hereby relinquish to said Miller, the committee, all rights that I now have, as the com- mittee of the person of the said Jones, and agree to give full possession of the house and premises where I now am, on Mon- day, February 2, 1880." This was signed by Mrs. Jones, and acknowledged on the same day. The defendants also offered in evidence a quitclaim deed dated and acknowledged on the same day from plaintiff to the three children and to Miller, the committee,, in which she released to them all her right, title, and interest in and to all the personal property of Jones that came into her pos- session at any time prior to the date of the instrument, except such articles as were brought to Jones' house by her, or bought with her own money ; and she released, assigned, and transferred to them, and their heirs and assigns, all the interest which she had, or might thereafter have, including any inchoate right of dower in any land to which Jones had title ; and she also released to the parties of the second part any contingent interest in any personal estate which Jones might own at his death ; and she covenanted with the parties of the second part not to make any claim therefor on the death of Jones, and that she would in the future, on demand of any one interested, make such further deeds, conveyances, or transfers as might be neces- sary to carry out the true intent and object of fihe parties, namely, to release all rights, inchoate or otherwise, which she had or might have in any property which Jones might have at the time of his death; and she acknowledged that the instrument was made as a part of the general settle- ment which appeared by the agreement bearing even date with the deed, and signed by her. She also agreed to give up the possession of the house on and before the Monday following, together with all the appurtenances thereto belonging. The defendant then offered in evidence a stipulation of the respective attorneys in the four actions mentioned in the agreement, dis- continuing the same, without costs, as against each other, also' dated January 28, 1878. The plaintiff objected to the agree- ment, the deed, and stipulation as immaterial and incompetent, and the referee sustained the objection, and excluded the evi- dence. The defendants then offered to prove that, after the time specified in the inquisition that Jones became a lunatic, the 76 ESTATES ARISING OUT OF MAEKIAGE. plaintiff wrongfully obtained from him over $7,000 worth of personal property, a portion of which she transferred to Stand- ring and Leavitt; that an action was brought against her in the name of Jones by his committee to set aside her marriage with Jones ; that actions were also brought by the committee of Jones against her, Standring and Leavitt to recover the personal prop- erty so obtained by her from Jones ; that, during the pendency of those actions, a settlement was made between Miller, the committee of Jones, and all of the children and prospective heirs of Jones, and the present plaintiff, whereby such actions were all discontinued, and Miller, as such committee of Jones, and the children and prospective heirs of Jones, paid to the plaintiff $3,400, which constituted upward of one-third of the real and personal property of Jones ; that the plaintiff, in con- sideration of the same, executed and delivered the releases and agreements before offered in evidence, and delivered the custody of Jones to the committee, and thereafter never lived with him; that Jones never recovered, and died intestate; and that, at the time the plaintiff obtained possession of the personal property, he was in fact a lunatic. The plaintiff objected to this evidence as immaterial and incompetent, and upon other grounds. The referee sustained the objections, and excluded the evidence. The defendants then offered to prove that Jula E. Zoller, one of the original defendants, since deceased, after the settlement before mentioned, took charge of Jones, her father, and cared for and supported him until his death, on the faith of the settle- ment. This evidence was also objected to, and the objection was sustained by the referee. In his report the referee found that the plaintiff's marriage with Jones was valid, and that she was entitled to dower in his estate, and judgment was entered in her favor upon such report, which, upon appeal to the general term, was affirmed. Whether the first husband of the plaintiff absented himself, without being known to her, for five successive years, within the meaning of the statute, and whether, assuming that he did so absent himself, and the plaintiff was thus lawfully married to Jones, she became entitled to dower in his real estate, her first husband being alive at the time of Jones' death, we do not deem it important to determine, as there are other plain reasons which constrain us to hold that this most inequitable claim for dower should be defeated. It is provided in the Revised Statutes (3 Eev. St. [7th Ed.] 2198, § 12) that " if, before her coverture, but without her assent, or if, after her coverture, lands shall be given or assured for the jointure of a wife, or a pecuniary pro- vision be made for her in lieu of dower, she shall make her elec- ASSIGNMENT AGAINST COMMON EIGHT. 77 tion whether she will take such jointure or pecuniary provision, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both." We must assume that the facts which the defendants offered to prove were true, and must dispose of the case on that basis. There was therefore, within the meaning of this section, a pecuniary provision of $3,400 for the plaintiff in lieu of her dower. While it was not made by her husband, it was in his behalf, by his committee and children. No one has questioned that it was legally made, and, while she holds the property, she cannot allege that it was not effectually made. This section does not in terms relate to a provision to take effect at the hus- band's death. Previous to the married woman's acts a pecuniary provision in lieu of dower could, during coverture, be made for a wife through the intervention of trustees, to take effect during the life of the husband or at his death. The property could be placed in the hands of trustees, so that she could have the ben- efit and enjoyment of it during the coverture, or her enjoyment of it could be postponed until after her husband's death; and in either event it cannot be doubted that the provisions made came within purview of that statute. Since those acts the property constituting the provision under this section may be transferred or secured to the wife as her separate estate ; and whether the possession and control of the property be at once given to her, or be postponed until her husband's death, it is still in every sense a provision within the meaning of this section. If, by the word "provision," the law-makers meant a suita- ble portion of the husband's estate, or a suitable provision for the maintenance of the wife, or a provision to operate at the husband's death, then all the three conditions are complied with in this case. This provision was a suitable portion of the hus- band's estate, the property was placed in the absolute control of the wife, and hence could be used for her support and main- tenance, and must have been so intended ; and, as it was given to her in the form of choses in action but a few months before her husband's death, it may be presumed that she had it at his death. The two following sections of the Revised Statutes must also be noticed. Section 13 provides that " if lands be devised to a woman, or a pecuniary or other provision be made for her by will in lieu of her dower, she shall make her election whether she will take the lands so devised, or the provision so made, or whether she will be endowed of the lands of her husband." Section 14 provides that "when a woman shall be entitled to an election under either of the two last 78 ESTATES ARISING OUT OF MARRIAGE. sections, she shall be deemed to have elected to take such joint- ure, devise, or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof." Under these sections the widow may make her election at any time within one year ; and if she does not elect to take her dower within one year, she will be deemed to have elected the provision made for her in lieu of dower. But she may elect to take the provision at any time, and, when she has done so, her right to dower is barred. Here the plain- tiff kept the pecuniary provision made for her, has never offered to return it, still has it, and must therefore be deemed to have elected to take and keep it in lieu of dower. She cannot have both the provision and dower ; and therefore, when she began this action within less than two months after her husband's death, she had already made her election, and her right to dower was gone. But there is still another reason for barring plaintiff's claim to dower. While, under the decisions in this State, the agree- ment and deed of January 28, 1880, could not operate as a pres- ent release of the plaintiff's inchoate right of dower, yet she was competent to enter into the agreement to execute a valid release of her dower after her husband's death. That agreement was based upon an adequate consideration. Three suits were pend- ing which related to what she claimed to be her separate estate, and they were settled and discontinued, and choses in action valued at $3,400 were transferred to and received by her as her separate estate. Her agreement was therefore one by which she Teceived a separate estate, and related thereto, and therefore was binding upon her under the married woman's acts, as has been frequently held in this and other courts of this State. Prevot v. Lawrence, 51 N. Y. 219 ; Herrington v. Robertson, 71 N. Y. 280; Cashman v. Henry, 75 N. Y. 103 ; Tiemeyer v. Turnquist, 85 N. Y. 516; Ackley v. Westervelt, 86 N. Y. 448. She received the choses in action in consideration of her agree- ment to release to these defendants her right of dower after the death of her husband, and her agreement was like the promise of a married woman to pay for prop- erty which she purchases for her own use, or adds to her sepa- rate estate. It is an immaterial circumstance that the defend- ants did not then own the land in which dower is now claimed, or the property which was transferred to her. They expected to be interested in the land as the heirs of their father, and were perfectly competent to make a contract for the benefit of the land at a future time when their interest should actually come TESTAMENTARY PROVISION IN LIEU OF DOWER. 79 into existence. So, too, while they did not actually own the personal property, they were so situated that they were able to procure a settlement of the suits, and the transfer of the prop- erty to her ; and so, even if the consideration was not at the time detrimental to them, it was beneficial to her, and ample to sustain her agreement based thereon. Certainly, so long as she retains the consideration which the defendants aided in securing to her, she cannot repudiate the agreement for which the consideration was furnished. We know of no reason why such an agreement should not be enforced because it relates to dower, then inchoate, but expected to be complete at the death of the husband, when the agreement was to be performed. Such an agreement is condemned by no public policy. A married woman may bar her right to dower by a proper ante-nuptial or post-nuptial agreement, by accepting a provision made for her in a will, or by joining her husband in the conveyance of land in which her right of dower is inchoate. It is the policy of the law that a wife shall not be deprived of her dower except by her own consent ; but it leaves her absolute freedom, in all the ways above mentioned, to bar her dower at her own will and pleasure. The defendants, in their answer, among other things, demanded for relief specific performance by the plaintiff of her agreement to release her dower; and if the evidence erroneously excluded by the referee had been received, they would, if necessary for their protection, have been entitled to such relief. Our conclusion, therefore, is that the Judgment should be reversed, and a new trial granted ; costs to abide the event. All concur. Xiex liOci Bei Sitae Governs Effect of Testamentary Pro- visions in Lieu of Dower. Staigg V. Atkinson, 144 Mass. 664; 12 N. E. 354. Holmes, J. This is an action brought by a widow to re- cover one-third of the proceeds of land in Minnesota, formerly belonging to her husband, and sold without prejudice. The defense is that she is barred by having accepted the provisions of her husband's will. The husband made a will while domi- ciled in Ehode Island, providing for the plaintiff, but not declaring the provision to be in lieu of dower, and then changed his domicile to Massachusetts, where he died. If he had died domiciled in Rhode Island, and the land had been situated there, the provisions of the will would not have prevented the plaintiff 80 ESTATES ARISING OUT OF MARRIAGE. from recovering dower ; and it has been decided, in a case between the same parties, that the change of domicile did not affect her right in Ehode Island land. Atkinson v. Staigg, 13 E. I. 725. If he had been domiciled and had made his will iu Minnesota, the plaintiff would have been entitled by statute to the one-third which she claims ; and, as there is no statute to the contrary, the provisions of the will would not have put her to an election. Gen. Laws Minn. 1875, c. 40 ; In re Gotzian, 34 Minn, 159, 163, 164; 24 N. W. Eep. 920 ; Eeed v. Dicker- man, 12 Pick. 146, 149; Ellis v. Lewis, 3 Hare, 310. If, finally, the land had been situated in Massachusetts, and the will executed there, the plaintiff would have been compelled to elect between her dower and the will. Pub. St., c. 127, § 20; St. 1861, 0. 164, § 1. So far there is no dispute between the parties. On the foregoing statement, it is obvious that the defendant cannot prevail, unless the rule which would govern if the land lay here also governs the present case. It is contended that that rule does govern, on the ground that the Massachusetts statute is a statute of construction, reading a claim of universal application into the will, to the effect that the provision made for the widow is in lieu of dower, or substituted statutory interests in all lands, wherever situated ; that the will is to be construed by the law of the domicile of the testator at the time of his death, and that if the will, so construed, makes an acceptance of its provisions a waiver of dower, etc., the law of Minnesota would enforce the election made by such acceptance. Washburn v. Van Steenwyk, 32 Minn. 339 ; 20 N. W. Eep. 324. But we cannot admit that a rule of construction, properly so called, not known to the law of the party's domicile when he made his will, is necessarily to be imported into it by reason of his dying domiciled elsewhere. For purposes of construction it is always legitimate to consider the time when and the circum- stances in which the will was made, and we think the law under which it was made was one of those circumstances. We are speaking only with reference to a case like the one before us, not to a question like that in Harrison v. Nixon, 9 Pet. 483, 504. The testator was at liberty to make his gift to his wife in lieu of or in addition to dower, as he saw fit. Which it should be, he had to consider, if he ever considered it, when he drew his will. He drew his will under a system by which the gift was in addition to dower unless he expressed the contrary, and he did not express the contrary. We are at a loss to see why his words should be held to acquire a new meaning upon his moving TESTAMENTARY PROVISION IN LIEU OF DOWER. 81 into a State where testamentary gifts are in lieu of dower unless shown to be in addition to it. Atkinson v. Staigg, ubi supra; Holmes v. Holmes, 1 Euss. & M. 660. In view of our construction of the Massachusetts statute, it is not necessary to consider what was the effect of moving into Massachusetts with regard to Massachusetts land. The plaintiff has never made any claim upon it. See Shannon v. White, 109 Mass. 146. Neither need we pass upon the plaintiff's argument that the generallaws of Minnesota should be accepted here as determining the construc- tion of the will, so far as concerns the effect of accepting its provisions upon the plaintiff's right to Minnesota land. It would follow from that argument that the plaintiff would have been barred of her dower in the Massachusetts land even if the testator had not moved from Rhode Island. The case of Jennings v. Jennings, 21 Ohio St. 56, relied on by both sides, was the case of a West Virginia will giving the wife certain interests in land in Ohio, and it was intimated that with regard to Ohio lands she was put to her election between the will and her dower, although West Virginia preserved the common-law rule allowing her to claim dower iu addition to what was given by the will. We understand this case to go on the ground that the law of the place of the land given to the widow by the will was to determine whether she was put to an election or not, at least with regard to land in the same jurisdiction, claimed outside the will. Thus construed, the case helps neither party. The case of Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. Eep. 324, which was put in evidence, is opposed to the plaintiff's contention. See Van Steenwyck v. Washburn, 59 Wis. 483, 510 ; 17 N. W. Eep. 289. But we need not pursue this branch of the case further, because, in our opinion, the Massachusetts statute does not pur- port to affect lands outside of the State either by way of con- struction or otherwise. The language of Pub. St., c. 127, § 20, is as follows: ♦' A widow shall not be entitled to her dower in addition to the provisions of her deceased husband's will, unless such plainly appears to have been the intention of the testator." In St. 1861, c. 164, § 1, the language is: "If she makes no such waiver, she shall not be endowed of his lands, unless it plainly appears by the will to have been the intention of the testator that she should have such provisions in addition to her dower." Both of these acts in form are directed at dower, not at the con- struction of wills. The statute gives the widow dower (Pub. St., c. 124, § 3 ; Rev. St., c. 60, § l),and allow her six months in which to waive the provisions made for her by the will (Pub. 82 ESTATES ARISING OUT OF MAEEIAQE. St., c. 127, § 18; St. 1861, c. 164, § 1; Eev. St., c. 60, § 11). They then go on to say that she cannot have her dower unless she waives the will, but add that the husband may make his bounty an addition to her dower if he sees fit. No doubt the statute was intended to change the common-law rule. But the fact that it approaches the subject from the side of dower, and not from the side of the will, shows that it was only intended to operate with regard to Massachusetts lands, whether described as a statute of construction or as a statute relating to dower. Of course, Massachusetts would not attempt to legislate concerning dower in another State. Taking the view which we have ex- pressed, we have not considered whether the statutory one-third in fee given by the law of Minnesota would be included under the word " dower " in our statute. It was suggested for the defendant that the widow could not claim under the will in one jurisdiction, and against it in another. But, on one construction of the will and the Massachusetts statute, she does not claim against the will by claiming her third of the Minnesota land outside of it. We are of opinion that the plaintiff's interest is bound to con- tribute to the payment of debts secured by mortgage upon the Massachusetts lands. By the old law, until changed in England by St. 17 & 18 Vict., c. 113, if other land was charged with the payment of debts, it had to exonerate land which the testator had mortgaged. And this rule was not based upon the fact that the devise of the mortgaged land was specific, as it would have been even if residuary, or upon any notion of the intention to be drawn from the will. Undoubtedly, land not passing by the will, but acquired and mortgaged after the will was drawn, would have been exonerated. The rule was put upon the ground that the debt was a general debt, like any other, and the mortgaged land only a security, and therefore that the funds liable for general debts must pay it. Bartholomew v. May, 1 Atk. 487; Tweedale V. Coventry, 1 Brown Ch. 240; Serle v. St. Eloy, 2 P. Wms. 386 ; Hewes v. Dehon, 3 Gray, 205, 207 ; Plimpton v. Fuller, 11 Allen, 139. It followed that, when other land and the mort- gaged land were both charged together, they were held to con- tribute ratably (Carter v. Barnadiston, 1 P. Wms. 505 ; Middleton v. Middleton, 15 Beav. 450; Harper v. Munday, 7 De Gex, M. & G. 369); and the same principle would apply when all the lands are charged by statute, instead of by will. By the Minnesota statute, the plaintiff's interest is " subject, in its just proportion, with the other real estate, to the payment of such debts of the deceased as are not paid from the personal estate ; " so that, apart from the will, the plaintiff's one-third WIDOW MAT CLAIM HOMESTEAD AND DOWER. 83 would stand no better than the other two-thirds. Taking into account this and the general course of legislation which makes land liable for debts, we think that it would be too artificial to interpret the testator's general direction to pay debts as indicat- ing an intent to charge the interests passing by the will in exoneration of the plaintiff's one-third, even as against residuary devisees. Hewes v. Dehon, ubi supra. See Harris v. Watkins, Kay, 438. Although we assume that the residuary devise was not specific, so far as it affected the Minnesota land, as it was not with regard to the land in Massachusetts (Blaney v. Blaney, 1 Cush. 107 ; Thayer v. Wellington, 9 Allen, 283, 296), the ■plaintiff prevails upon a somewhat technical principle, and hardly can complain if she is held to stand upon the footing ou which the Minnesota statute meant to put her. Judgment for plaintiff for $2,205.69. SECTION IV. HOMESTEAD. Warren v. Warren, 148 111. 641 ; 36 N. B. 611. Ingels V. Ingels, 50 Ean. 756; 32 P. 387. Widow May Claim Botli Homestead and Dower. Warren v. Warren, 148 HI. 641; 36 N. E. 611. The original bill in this case was filed on September 24, 1890, Toy the appellant, Eliza A, Warren, the widow of Alpha Warren, who died testate on November 12, 1888, against John H. Warren in his own right as a son of Alpha A. Warren by a former wife, and as executor of the will of said Alpha Warren. Appellant was married to Alpha Warren on June 15, 1875, and was at that time a widow having a daughter by a former husband, but never had any children by Alpha Warren, his only child being said John H. Warren. After answer filed, the bill was amended by making the children of John H. Warren defendants. Subsequently, on October 4, 1892, a supplemental bill was filed by appellant against said John H. Warren and his children. The questions in the case arise upon the issues made by the answers to the supplemental bill and the replications to such answers. The supplemental bill prays for an allotment of dower and homestead, for an accounting by the trustee and executor, for a 84 ESTATES ARISING OUT OF MAEEIAGE. disallowance of certain payments made by him for special as- sessments and special taxes levied against real property of the estate in Eockford, for removal of the trustee, and for general relief, etc. The answers deny that complainant is entitled to any of the relief asked for, and set up release and settlement by her, and payment to her and receipt by her of one-third of the balance of the rents and interest given to her by the will, etc. The decree of the circuit court finds that the will of Alpha Warren was admitted to probate on November 15, 1888; that John H. Warren entered upon the duties of executor and trus- tee thereunder ; that complainant aflSrmed said will, and did not relinquish any of the provisions thereof, and is not. entitled to either dower or homestead in the lands of her deceased hus- band ; that the personal estate has been and will be exhausted in payment of widow's award, claims allowed, and the compensation of the trustee to be allowed ; that since the testator's death the city of Eockford has carried on proceed- ings by special assessment for the improvement of pub- lic streets and the construction of public sewers ; that such as- sessments against the lands of the testator amount to $1,441 ; that complainant has been wrongfully charged with one-third thereof, to wit, $480.33; that under the will she is only charged with one-third of the ordinary taxes and repairs. The decree orders that John H. Warren, pay to complainant said sum of $480.33, with 5 per cent interest, and certain costs, within 40 days, etc., and have execution therefor, and that the question of the executor's compensation be reserved, etc. The will of Alpha Warren appoints his son his "executor to settle and manage my estate, and also my trustee, to hold and keep my estate intact during his natural lifetime; " and, after providing for the payment of debts and funeral expenses out of the personal property, it proceeds as follows: "I direct that the annual income of my estate, personal and real, shall be used as follows : My executor and trustee shall be entitled to and shall receive a reasonable compensation for his services. The annual taxes and insurance, and also all reasonable repairs and improvements, shall be provided for out of the annual rents and interests; and of the annual income not used for the purposes above named, one-third shall belong to my wife, Eliza A. Warren, during her natural life, and also a suit- able house for her residence during the same period; and two-thirds of the above named income shall belong to my son, John Henry Warren, for the support of himself and family during his natural life. At the decease of my wife, £liza A. Warren, the one-third of income belonging to her as WIDOW MAY CLAIM HOMESTEAD AND DOWER. 85 ■dowery shall revert to my estate for the benefit of my lawful heirs. Subject to the direction and control of the said John H. Warren, the trustee of my estate, and after the decease of both my wife, Eliza A. Warren, and of my son, John H. Warren, then my entire estate shall belong in equal values to the children of John H. Warren who shall survive him; said sum to be held in trust for each one until he or she shall be twenty-one years of age. My executors, after consulting with the probate judge, and both judge and executor shall decide that a sale or exchange of any of my real estate in the city of Rockford will benefit my heirs interested in said estate, such sale or exchange and rein- vestment may be made with the approval of the probate court, but not otherwise. And my son, John H. Warren, and my wife, Eliza A. Warren, shall not be required to pay rent for the use of the residence that they shall occupy which shall be suitable for their respective families, but they are not to occupy the double houses that are arranged for differ- ent families at one and the same time as tenants." On November 27, 1888, appellant executed under her hand and seal an instrument by which, in consideration of the pay- ment and approval of the award allowed her on that day, and for other goods and valuable considerations, she agreed with those interested in the estate as follows: " First. I, widow of said deceased, do hereby covenant and agree to accept the legacy and interest given in and by the last will of said deceased, my award, and the claim of $200 filed by me in said estate, in full of all claim to or right or interest in the estate, real, per- sonal, or mixed, of said deceased, of every name and nature; and any other interest is hereby expressly waived and released to said estate." The appellant did not renounce the provisions of the will within one year after letters testamentary were issued. During December, 1888, and in each month in the years 1889, 1890, 1891, and 1892, she has received moneys from the trustee and executor out of the income of the estate. She was paid her widow's award, about $1,200, and the claim of $200 against the estate, which is above referred to. N. C. Warner, for appellant. J. C. GarverandA. E. Fisher, for appellees. Magruder, J. (after stating the facts). The first ques- tion arising upon the assignment of error is whether or not the appellant is entitled to have dower assigned to her in the lands of her deceased husband. Sections 10 and 11 of the present dower act, which was approved on March 4, 1874, and went into force on July 1, 1874, are as fol- lows: (10) " Any devise of land, or estate therein, or any 86 ESTATES ARISING OUT OP MARKIAGE. other provision made by the will of a deceased husband or wife for a surviving wife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of all debts." (11) " Any one entitled to an election under either of the two preceding sections shall be deemed to have elected to take such jointure, devise or other provision, unless, within one year after letters testamentary of administration are issued, he or she shall deliver or transmit to the county court of the proper county a written renunciation of such jointure, devise or other provision." Section 13 prescribes the form of renunciation, by the terms of which the surviving husband or wife does thereby " renounce and quitclaim all claim to the benefit of any * * * devise or other provision made to me by the last will and tes- tament of the said * * * and I do elect to take in lieu thereof my dower and legal share in the estate of the said * * *." As the appellant did not renounce the pro- visions of the will within one year after letters testamentary were issued to the executor of Alpha Warren's estate, it would seem to be clear that she had elected to take under the will, and that she is not entitled to an assignment of dower in the testator's land under the decisions of this court. Cowdrey v. Hitchcock, 103 111. 262 ; Stunz v. Stunz. 131 111. 210 ; 23 N. E. 407 ; Cribben V. Cribben, 136 111. 609 ; 27 N. E. 70. It is contended by counsel for appellant that the acceptance by the widow of the provision made for her in the will will not bar her dower, unless such provisions shall be a reasonably adequate compensation for the loss of what she would have been entitled to under the statute if there had been no will. This contention is based upon the decision of the circuit court of the United States for the seventh circuit in the case of U. S. V. Duncan, 4 McLean, 99; Fed. Cas. No. 15,002, where a liberal construction was given to section 39 and 40 of the act of this State in regard to wills in force in 1829 (Rev. Laws 1833, p. 624). But a comparison of sections 39 and 40 of the act of 1829 with sections 10 and 11 of the act of 1874 will show that the phraseology of the former is different from the phraseology of the latter. By the terms of said section 11, if the surviving husband or wife fails to renounce within the year, he or she shall be deemed to have elected to take the provision given by the will. The directions of the statute are explicit, and a compliance with them can work no harm WIDOW MAT CLAIM HOMESTEAD AND DOWER. 87 to any of the parties concerned. Section 10 directs that the devise or other provision made by the will shall be a bar to dower " unless otherwise expressed in the will." If, therefore, a husband desires to make, in his will, a provision for his wife, which shall not operate as a bar to her dower, he can therein state that such provision is not to be in lieu of dower, in which case she will take both her dower and what is devised or bequeathed to her. If the widow deems such devise or bequest an inadequate compensation for dower, she can file her renuncia- tion within the time specified, and thereby take what she is entitled to under the statute. In the present case, however, we are not satisfied that the provision made for the appellant by the will is not a reasonably adequate compensation for her dower, if the doctrine of the Duncan case should be held to be applicable. It is conceded that the personal estate of the deceased testator has been exhausted in the payment of the debts and expenses of adminis- tration, and that no personal property would have passed to appellant if her husband had died intestate. All that she could have received in any event was dower in the lands. All that her dower, when assigned and set off, would amount to would be the right to use the one-third in value of her husband's lands, and draw the rents and profits thereof, dur- ing her life. The will, by directing that one-third of the annual rents and interest, after deducting certain expend- itures, shall belong to her, gives her what is substantially equiv- alent to the value of her dower in the real estate. Counsel refer us to a number of cases which hold that the wife cannot be deprived of her dower by a testamentary disposition in her favor, so as to put her to her election, unless the testator has declared the same to be in lieu of dower, either in express words or by necessary implication. Under the rule laid down in most of these cases, the testator will not be presumed to have in- tended the provision in his will to be a substitute for dower, unless the claim of dower would be inconsistent with the will, or so repugnant to its provisions as to disturb and defeat them. Adsit V. Adsit, 2 Johns. Ch. 448; Smith v. Keniskern, 4 Johns. Ch. 9; Wood v. Wood, 6 Paige, 595; Fuller v. Yates, 8 Paige, 325; Church v. Bull, 2 Denio, 430. The decisions referred to will be found, upon examination, to have been rendered in the absence of such statutory provisions as exist in this State, and such decisions are consequently inapplicable to the case at bar. The great object in construing the wills which the courts there had under consideration, was to ascertain the intention of the testator upon the question whether or not the testamentary 88 ESTATES AEISING OUT OF MARRIAGE. disposition was to be taken in lieu of dower. Even in the Duncan Case, supra, the reasoning of the court proceeds largely upon the ground that the testator will not be pre- sumed to have intended his bequest or devise to be a substitute for dower if its amount or value is, to a very considerable extent, less than the amount or value of the dower. But, under the peculiar terms of the Illinois statute, the provision in the will is declared to be a bar, unless the intention that it shall not be a bar is expressed in the will. The statute makes the silence of the testator the conclusive iodex to his intention, and it also makes the failure to renounce within a specified time conclusive evidence that the surviving husband or wife has elected to take under the will. We think, however, that if the rules laid down in the author- ities relied upon are applied to the interpretation of the will in this case, there will be disclosed an intention to make the testa- mentary provisions a substitute for dower, and not a gift in addition to it. Alpha Warren drew his own will, and he therein designates the portion of the " annual rents and interest " given to his wife as " one-third of income belonging to her as dower." If the one-third of the income specified in the will was to be her dower or " dowery," he could not have intended that she should have another dower outside of and in addition to that given by the will. Again, after directing that one-third of his net annual income shall belong to his wife, he directs that the other two- thirds thereof shall belong to his son, John H. Warren. If the wife was to have dower besides the third of the income given her by the will, the son could not take the two- thirds of the income therein devised to him. The widow, in such case, would virtually have two-thirds, and only one-third would be left for the son. It follows that the claim of dower on the part of the widow is inconsistent with the provisions made for the son in the will, and so repugnant to them that, if allowed, it would defeat them. A case might arise where the widow, in accepting the testamentary disposition, acted with- out full knowledge and understanding of her true situation and rights, and of the consequence of her acceptance. 4 Kent Comm., p. 58. It might then be necessary to determine whether the lapse of more than a year without renunciation would cut her off from the privilege of making her election. U. S. v. Duncan, supra; Cowdrey v. Hitchcock, supra. But here it appears that the widow was correctly advised as to her testa- mentary rights and her statutory rights and the value of the one as compared with the other. Counsel further insists, that the dower of the appellant is not WIDOW MAT CLAIM HOMESTEAD AND DOWER. 89 Ijarred because the devise is not to the wife, but to the executor iu trust for her benefit. Under the English statute of uses a jointure was not available to bar the widow's dower, unless the settlement was to the wife herself, and not to any other person in trust for her. Van Arsdale v. Van Arsdale, 26 N. J. Law, 404. It has also been held that a devise of lands to trus- tees for the benefit of the wife does not necessarily indi- cate intention to defeat dower, as the trustee may take the lands subject to its legal incidents, that of dower included. Wood v. Wood, supra ; Church v. Bull, supra. But the language of our statute is broad enough to include devises to trustees for the benefit of the wife, as well as those directly to the wife herself. It would be a narrow construction that would exclude a devise to a trustee from the meaning of the following words in section 10 : " Any other provision made by the will of a deceased hus- band or wife for a surviving wife or husband." The use of the word " for " forbids a limitation of the meaning to devises made to the wife. The next question is whether the appellant is entitled to have a homestead assigned to her. The will provides not only that there shall belong to the appellant one-third of the net annual income during her natural life, but " also a suitable house for her residence during the same period," and that she shall not be required to pay rent for the use of such residence. Since her husband's death she has continued to reside in the same house, belonging to her estate, in which she lived with him at the time of his death, and for several years prior thereto. Section 11, as above quoted, directs that any one entitled to an election under section 10 " shall be deemed to have elected to take such joint- ure, devise, or other provision, unless " there is a renunciation within the specified year. The provision which such person shall be deemed to have elected to take is the whole of the provision made for him or her in the will, and not a part of such provision. The devise elected to be taken will be the whole of the devise given, and not a part thereof. It follows that when appellant, by her failure to renounce, elected to take one-third of the net annual income for her natural life, she also elected to take therewith a suitable house for her residence during the same period. Hence her continued residence in the house where she and her husband lived when he died will be presumed to be in the exercise of her right thereto as given by the will, and not iu the exercise of her statutory right of homestead. Stunz V. Stunz, supra. The statute gives a householder having a family as estate of homestead to the extent in value of $1,000, and continues such exemption after his death to his surviving 90 ESTATES ARISING OUT OF MARRIAGE. wife, SO long as she continues to occupy the homestead. Rev, St., c. 52, §§ 1, 2. The will in this case does not limit the value of appellant's residence to $1,000, or any other amount, but only requires that the house shall be suitable for her resi- dence. The residence provided for by the will is not the same as the homestead given by the statute. The general rule is that a person cannot accept and reject the same instrument. Bir- mingham V. Kirwan, 2 Schoales & L. 449 ; 2 Story Eq. Jur., § 1077, note 4. It is a maxim of equity not to permit the same person to hold under and against a will. Brown v. Pitney, 39 111. 468 ; Ditch v. Sennott, 117 111. 362 ; 7 N. E. 636. The appellant cannot accept the will as to dower and reject it as to the provision which it makes for a homestead or residence. Nor does the law contemplate that a householder can have two homesteads. Tour- V\\\ev. Pierson, 39 111. 446. Appellant, having elected to take a house for her residence according to the terms of the will, cannot have a homestead set apart to her under the statute. It is true that a homestead under the statute is exempt " from the laws of conveyance, descent, or devise," except as therein provided; but where the testator directs in his will that his wife shall have a suitable bouse for her residence during her life without pay- ment of rent therefor, and she accepts the provision of the will, she cannot insist upon her statutory right of homestead. Cow- drey V. Hitchcock, supra. The next question arises upon a cross error assigned by appellees, and is whether the appellant is justly chargeable with malfeasance as trustee in discharge of certain special assessments levied upon real property of the estate for paving streets and putting in sewers. The will directs that "the annual taxes and insurance, and also all reasonable repairs and improvements, shall be provided for out of the annual rents and interest," before one-third of the annual income shall belong to the wife. It cannot be said that a direction to pay " annual taxes" is a direction to pay special assessments. A special assessment imposed for a special purpose has none of the distinctive features of the ordinary annual tax, which is imposed for some general or public object. Illinois Cent. R. Co. V. City of Decatur,126 111. 92; 18 N. E. 315; Id. 147 U. S. 190; 13 Sup. Ct. 293. But we see no reason why the paving of a street in front of a lot, and the pulling down of a sewer therein, should not be regarded as " reasonable improve- ments. " The improvement may be local as affecting the local- ity in which the property is situated, but is of special benefit to the particular property assessed, because it increases its value; not only the permanent value inuring to the benefit of the rever- WIDOW MAT CLAIM HOMESTEAD AND DOWER. 91 sioner, but also the rental value during the existence of the life estate. The widow must pay the taxes and charges upon the property assigned to her for dower. Peyton v. Jeffries, 50 111. 143 ; Whyte v. Mayor, etc., 2 Swan. 364 ; Haulenbecku. Cronk- right, 23 N. J. Eq. 407. In Whyte v. Mayor, etc., supra, it was held that, where a lot had been assigned to a widow as part of her dower, the cost of paving the street in front of the lot was a proper charge against her. When dower is assigned, the widow becomes seised of a freehold estate for life in the portion allotted to her. She is in by relation from her husband's death, and is in of the seisin of her husband. 4 Kent Comm., §§ 61, 69. Standing in his place, she must be "subjected to the charges, duties, and services to which the estate may be liable, in proportion, certainly, to her interest therein." Peyton v. Jeflries, supra. Here the appellant, being entitled to one-third of the net annual rents and interest during her life, may be regarded as a tenant for life. The tenant for life is bound, out of the rents and profits, to keep down all incidental charges upon the lands which accrue during the continuance of his or her estate, as for repairs, taxes, and the like. White v. Mayor, supra. A special assess- ment for paving and sewerage, as well as taxes and repairs, may be included in such incidental charges. If, under the terms of the will of Alpha Warren, the appellant cannot be charged with her proportionate share of the special assessments, then the appellee John H. Warren cannot, by the same construction, be charged with his proportionate share thereof. If such assess- ments are not to be paid out of the rents and interests, how are they to be paid ? It is suggested that application can be made to a court of equity for leave to sell some of the land in order to raise the amount required; but the amount of appellant's income might be diminished by such a sale as much as it would be by paying the assessments out of the rents and interest ; and, not only so, but a sale of a portion of the property for such a pur- pose would defeat the manifest intention of the testator, as dis- closed by that clause of the will which directs " my trustee to hold and keep my estate intact during his natural lifetime." For the reason thus stated, we think that the decree of the circuit court was correct in holding that appellant was not entitled to dower and homestead, but was erroneous in holdmg that appel- lant was wrongfully charged with one-third of said special assess- ments, and in ordering that the executor and trustee should pay to the appellant the amount so charged to her. For this error the decree to the extent here indicated is reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed. Keversed. 22 ESTATES ARISING OUT OF MARRIAGE. Occupation Necessary to Claim of Homestead. Ingels V. Ingels, 60 Kan. 765; 32, P. 387. Allen, J. On the 22d day of June, 1889, defendant in error obtained a judgment in the district court of Atchison County, Kan., against T. J. Ingels and M. F. Ingels for the sum of $906.90 and costs of suit. On the 9th day of August, 1889, execution was issued on said judgment to the sheriff of Atchison county. On the 19th of August, 1889, said sheriff levied the same on lot 11, and the west 40 feet of lot 12, block 11, in that part of the city of Atchison commonly known as " West Atchi- son." The sheriff duly advertised this property for sale, and on the 26th day of September, 1889, sold the same to the plaintiff below for the sum of $157. Motions were thereafter filed both to confirm and set aside said sale. These motions were heard at the same time. The motion to set aside the sale was overruled, and the motion to confirm was sustained. The defendants below excepted to the ruling of the court on these motions, and bring the case here for review. Two points are urged by counsel for the plaintiffs in error. One is that the appraisement is defective, because the appraise- ment fails to state that the appraisers made an estimate of the real value of the property. The appraisement does state that the appraisers, being first duly sworn impartially to appraise the said property upon actual view, had truly and impartially appraised said property, and that the particular property in controversy was appraised at $150. We think this a substantial compliance with the statute. It is not necessary that the precise language of the statute be used in the report of the appraisers. We think that the appraisement in this case fairly shows that the property was appraised at what the appraisers deemed its real value. This is a substantial compliance with the requirement of the statute. The principal question presented for our consideration is whether or not this property was a homestead, and therefore exempt from levy and sale. The facts with reference to the matter, as appears from the record, are as follows: The plain- tiffs in error formerly owned and occupied a homestead in West Atchison, which they sold in the year 1887, expecting and intending at the time to reinvest the proceeds in another home- stead. Soon thereafter they invested a part of the proceeds of this sale in the property in controversy, for the purpose and with the intention of making it their permanent homestead. At the time of the purchase there was no house or other building thereon, and the same was not inclosed. They OCCUPATION NECESSARY TO CLAIM OP HOMESTEAD. 93 inclosed the lots with a fence, and, as fast as they were able, proceeded to and had hauled on said lots materials, stone, lumber, etc., with which to build a dwelling-house and building to occupy as a homestead. Milliard F. Ingels then took a contract at Valley Falls to bore for coal, and temporarily moved to Valley Falls, to be near his work, and intending to return to his homestead, complete his dwelling-house, and occupy the same as his permanent homestead. While he was still engaged on his contract at Valley Falls, and before he had com- pleted the same, on the 19th day of August, 1889, the sheriff levied said execution on said property, and sold the same as before stated. The plaintiffs in error have no other homestead, and no other real estate of which to make a homestead. After the levy the defendants below built a house on said lots, which they occupied at the time of the sale. The defendants never occupied the premises in question from the time they were pur- chased by the defendants, in March, 1887, till after the making of the levy thereon ; and at the time said judgment was rendered and at tiie time the levy was made, the said premises were vacant and unoccupied, excepting that they were inclosed by an old fence. The facts in this case are to be gathered from the affidavit made by both plaintiffs in error, and also from an agreed statement of the facts made by both parties, and included in the record. The statements with reference to the placing of building materials on the lots are contained in the affidavit. From the agreed statement it appears that the defendants never occupied the premises in question from the time they purchased them to the time of the levy, and that at the time the judgment was rendered and at the time of the levy the premises were vacant and unoccupied, except that they were inclosed by an old fence. We can only harmo- nize the facts gathered from the affidavit with those con- tained in the agreed statement of facts by concluding that whatever building materials had been placed on the lots were removed therefrom before the levy was made. Jt clearly appears from the whole record that the premises were never in fact occupied by the defendants as a homestead, and also that at the time the judgment was rendered and the levy made the lots were vacant and unoccupied. The question is now presented for our consideration as to whether the purchase of this property for a homestead, and the intention in the minds of those parties to make it a homestead in the future, is sufficient to supply the requirement of occupancy contained in the constitution. Section 9, art. 15, of the constitution reads as follows: " Sec. 9. A homestead to the extent of one hundred and sixty acres of 94 ESTATES ARISING OUT OP MAEKIAGE. farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from force sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists ; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erec- tion of improvements thereon; provided, the provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wi»fe." This section of the constitution has been considered and construed by this court in numerous cases. In the case of Edwards v. Fry, 9 Kan. 417, Mr. Justice Brewer, speaking for the court, used the following language: "We know the spirit which animates the people of Kansas, the making of our constitution and laws, on this homestead question. We note the care with which they have sought to preserve the homestead inviolate to the family. We have no disposition to weaken or whittle away any of the beneficent constitutional or statutory provisions on the subject. We know that the purchase of a homestead, and the removal onto it can not be made momentarily contemporaneous. It takes time for a party in possession to move out, and then more time for the purchaser to move in. Repairs may have to be made, or buildings partially or wholly erected. Now, the law does not wait till all this has been done, and the purchaser actually settled in his new home before attaching to it the inviolability of a homestead. A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may secure ab initio a homestead inviolability. Yet occu- pation is nevertheless an essential element to secure this inviolability." Again, in the case of Monroe v. May, Jd. 466, it was held: "A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, receives from the time of purchase a homestead exemption from seizure upon execution or attachment." The facts in that case with reference to the occupancy are briefly these: Monroe, the judgment debtor, owned a farm, which he sold in November, 1870, receiving in exchange a house and lot in Atchison and $1,600 in notes. Possession, by agreement, was to be exchanged on the 1st of March following. The ex- change was so made, and this city property was occupied and claimed by Monroe and wife as their homestead. The court in that case came to the conclusion that the Monroes became actual occupants of this property within a reasonable time after its OCCUPATION NECESSAET TO CLAIM OF HOMESTEAD, 95 purchase, and that it was exempt to them as a homestead. The time intervening between the purchase and taking possession was four months or less. Again, in the case of Gil worth v. Cody, 21 Kan. 702, it appeared that Cody, on December 1, 1877, purchased 80 acres of land for the purpose of present use as a residence. The land was vacant at the date of the pur- chase. Cody commenced at once to dig a cellar, and haul stone for a dwelling house. On December 5th, he started to a neigh- boring town to purchase materials out of which to erect a dwell- ing house. He made such purchase, and returned with the materials on December 7th. He unloaded the materials adjoin- ing the premises on the same 'day the premises were levied on under the order of attachment. Cody continued the construc- tion of his dwelling house, and completed the same December 28, 1877, and moved at once with his family into the dwelling, and occupied it as the residence of himself and family. Chief Justice Horton, in delivering the opinion of the court, used the following language, after having reviewed the authorities on the subject : " These decisions clearly establish the doctrine that our homestead laws, beneficial in their operation, and founded in a wise policy, should be liberally construed, so as to carry out their spirit. Considered in this light, in this case there was such an actual purpose and intention of present occupancy, accompanied with such acts on the part of the defendant in error in the com- mencement and completion of his dwelling, together with his residence therein with his family, that this might reasonably be held to amount in substance to actual occupancy at the date of the levy. While, therefore, we hold, within the terms of the law, that occupation is an essential element to secure a home- stead inviolability, under the exceptional circumstances which appear from the findings of the court, the intentions and acts of the purchaser of the land in controversy may be construed into a legal equivalent of actual occupancy of such premises. Law is entitled to and can command respect only when it is reasona- ble, and adapted to the ordinary conduct of human aifairs ; and the construction we have given above to the provisions securing homestead exemptions is certainly within their spirit, and more in consonance with a reasonable interpretation thereof, than if we adopted the opposite conclusion." Counsel for the plaintifis in error calls our attention to the case of Keske v. Reske, 51 Mich. 541 ; 16 N. W. Rep. 895. The opinion in that case was delivered by Justice Cooley, and carries the doctrine of constructive occupany for a homestead to the furthest limit yet reached by any court, so far as we have been able to review the authorities. It appeared in that case that the 96 ESTATES ARISING OUT OP MAREIAGE. defendant purchased the lot in controversy in Detroit in Janu- ary, 1880. He was a single man at the time of the purchase,, but soon thereafter married. He then fenced the lot and com- menced malsing use of it. He built a barn and shed, dug a well, kept his horses, his hogs, and his poultry, and also piled wood, which he kept for sale, on the lot. At first he lived at some con- siderable distance, but afterwards took board across the way, and remained there while building. In the spring of 1881 he obtained figures from a builder on the cost of a house, but, not being able to go on, he did not then build. It was towards the end of 1882 before they were able to put up a house, and they were not liv- ing in it till 1883. In November, 1882, judgment was taken against the defendant, and execution levied on the lot. The court in that case comments on the fact that the defendant was all the time in actual occupancy of the lot, and was, from time to time, doing various acts tending towards the con- struction of such buildings and conveniences as were required in order to make it a home. Tiie period of time intervening between the purchase of the lot and the levy of the execution was a few months longer than in this case. It will be noted, however, that in this case it is expressly admitted that there was not at any time actual occupancy of the premises by the defendant from the time of the purchase till the date of the levy. In that case the defendant testified, and the court quotes from his testimony the following language, " I built every day as soon as I got a little money ahead." The court evidently took the view of the case that the defendant's delay in the construction of his dwelling house was due solely to his poverty, and that he was all the time making a determined effort to actually fit the premises for occupation by himself and family. He not merely had the purpose in his mind to make the lot his homestead, but was actually at work, from time to time, on the lot, preparing it for a home. In the case of Swenson v. Kiehl, 21 Kan. 533, the syllabus of the case is as follows: "(I) Homestead occupa- tion. Occupation, actual or constructive, is essential to give the character of homestead to premises. (2) * * * Intent when purchased. While occupation need not always be instan- taneously contemporaneous with purchase to create a home- stead, yet the purchase must always be with the intent of present, and not simply of future, occupancy." In that case the land was purchased by the execution debtor on No- vember 13, 1876. The judgment on which the execution was issued was rendered in 1873. One execution was issued February 5, 1877, and another February 23, 1877. The sale was made under the latter execution. There was a house on OCCUPATION NECESSARY TO CLAIM OF HOMESTEAD. 97 the land, but the defendant failed to occupy it as a residence fbr more than a year after the purchase, and in that case Mr. Justice Brewer, in the opinion, says: «' 'Occupied as a residence by the family of the owner,' is the language of the constitution defining a homestead exemption. We are aware that occupancy is not always possible at the instant of purchase, and that, as we have heretofore said, a reasonable time is allowable in which to prepare for and to complete the removal and occupation of the intended homestead, but the purchase must be for the purpose and with the intent of present, and not simply of future, use as a residence." In the case of Farlin v. Sook, 26 Kan. 398, it was held : " under the homestead exemption laws no person can hold property exempt from execution or forced sale unless the property is ' occupied as a residence by the family of the owner.' Therefore, where the owner of the property resides upon the same, but his family, consisting of a wife and children, have never been in Kansas, but reside in Illinois, and it is not, and never has been, the intention of the owner to bring them to Kansas, or to have them reside upon the property, held, that the owner cannot hold the property exempt from execution and forced sale under the homestead exemption laws." In the case of Koons V. Rittenhous, 28 Kan. 359, it appeared that a husband and wiferesidedinNewYorkinl871. The husband, desiring to change his place of residence, came to Kansas, and purchased real estate, and resided thereon for about four years, then sold the same, and executed a deed therefor, representing himself to be a single man. About a year afterwards the wife came to Kan- sas, and thereafter resided upon the land with her husband, and it had been at all times the intention of the husband and wife that she should at some time come to Kansas, and reside upon the land with him. It was held that the land had never been occupied as a residence by the family of the owner in accordance with the exemption law, and that the deed from the husband alone was therefore not void. Again, in the case of Bradford V. Trust Co., 47 Kan. 587; 28 Pac. Rep. 702, in concluding the opinion, Chief Justice Horton says: "Under the constitution, there must be occupancy as a residence by some one of the family of the owner to constitute a homestead." We do not think there is any real conflict in the authorities cited, nor do we think that the Michigan case goes to the limit which the plaintiff in error asks us to reach in this case. What- ever our views might be as to the propriety of allowing a debtor to hold a tract of land for a homestead, whether occupied or not, we are bound to declare the law as we find it, and, while this court in the cases cited has given the constitutional 58 ESTATES LESS THAN FREEHOLD. provision a liberal construction for the purpose of fully securing to needy debtors the beneficent exemption secured to them by the constitution, yet we may not wholly dis- pense with the requirement of occupancy. Can it be said that these lots, though vacant and wholly unoccupied for a period of more than two years, were in the constructive occupancy of the defendants, because they were purchased with the pro- ceeds of a former homestead, and the defendants intended, as soon as they sliould be able to build thereon, to occupy them? If we hold these lots to have been a homestead during 3.11 this time, by what course of reasoning can we ever fix a limit within which actual occupancy must take place? The admission contained in the record that the defendants never occupied the lots or premises in question herein from the time they were purchased by the defendants, in March, 1887, up to the time subsequent to the making of the levy herein (which was on August 19, 1889), and that at the time of the levy the premises were vacant and unoccupied, seems to us to be decis- ive of this case ; and that the defendants have admitted that occupancy by the family of the defendants did not exist, and therefore the defendants cannot claim the premises exempt to them as a homestead. The fact that the defendants took possession of the lots and constructed a house thereon after the levy of the execution cannot of itself defeat the lien of the judgment. Bullene v. Hiatt, 12 Kan. 98. The rights of the parties were fixed at the time of the levy, and no subsequent act of the debtor could change them. We find no error in the rul- ings of the district court, and its orders will be affirmed. All the justices concurring. CHAPTER Vn. SECTION I. ESTATES FOB TEAES. Syms V. Mayor of New York, 105 N. Y. 153; 11 N. E. 369. Ereeland v. Eitz, 154 Mass. 257; 28 N. E. 226. Sexton V. Chicago Storage Co., 129 lU. 318; 21 N. B. 920. Doyle B. Un. Pac. Ey. Co., 147 U. S. 413. Ingalls V. Hobbs, 156 Mass. 348; 31 N. E. 286. Snow V. Pulitzer, 142 N. Y. 263; 36 N. E. 1059. Stevens v. Pantlind, 95 Mich. 145; 54 N. W. 116. Barlow v. Dahin, 97 Ala. 414; 12 So. 293. Covenant for Renewal and the Rnle of Perpetuity. Syms V. Mayor of New York, 105 N. Y. 163; 11 N. E. 369. Eael, J. On the 10th day of April, 1810, the city of New York executed to Peter Lorillard a lease demising to him certain COVENANT FOR RENEWAL. 99 premises for a term of 30 years, ending on the first day of May, 1840. The lease was executed by both parties, and in it the city agreed that at the expiration of the term, to wit, May 1, 1840, it would demise the premises to him, his assigns, etc., " for and during the term of twenty-one years thereafter, with a like cove- nant for future renewals of the lease as is contained in the present indenture." On February 1, 1839, Lorillard assigned the lease to John Syms, who thus became substituted in his place. On the first day of April, 1840, the city executed a lease of the same premises to John Syms for another term of 21 years, in which it covenanted that at the expiration of that lease, to wit. May 1, 1861, it would again demise the premises, "in pur- suance of this present lease, * * * for and during the term of twenty-one years thereafter, upon such rents as shall be agreed upon," or determined by two sworn appraisers and an umpire. On the twentieth of April, 1861, the city executed a third lease to John Syms for 21 years from May 1, 1861, That lease contained no covenant for renewal, and in it Syms cove- nanted that at the end of that term he would peaceably and quietly leave, surrender, and yield up to the city, or its successors or assigns, all of the demised premises. Syms died in 1868, having some years before his death erected a valuable building upon the premises. In April, 1880, the city sold the premises to John B. Haskin. Thereafter, in October, 1880, the plaintiffs, as executors of Syms, commenced this action, alleging in their complaint, among other things, the facts hereinbefore stated, and praying that the city be adjudged to reform the leases Geant, J. The terms of the lease involving the questions now raised, are stated in 87 Mich. 476; 49 N. W. Eep. 602. The evidence there given is also substantially the same as in the present record, which, in addition, contains evidence, given on the part of plaintiff, tending to show that at the time of the alleged surrender of the property to plaintiff there were logs in the mill yard, lumber and slabs in the mill, and lumber upon the docks and in the yard. The evidence will be referred to in con- nection with the legal questions to be determined. 1. The court left it to the jury to determine whether the lease was in fact terminated. This ruling and the instructions given were correct if, under the plaintiff's own showing, the lease had not expired. No time was fixed in the lease for its termination. This depended upon a contingency, viz., the cutting of the logs which the defendants had in plaintiff's mill yard, and on lots adjoining, within the meaning and construction of the lease as determined from its "four corners." It did not by its terms expire the moment the last log was cut into lumber, and the workmen discharged. The defendants possessed the undoubted right to retain possession for the removal of their lumber, and for putting of the mill in the condition required by the contract before turning it over to plaintiff, who gave evidence tending to show that defendants' foreman and agent, Mr. White, had, after shutting the mill down, and discharging the workmen, made a contract for the removal of the lumber still there. When the mill was shut down, plaintiff was legally enti- tled to presume that defendants would perform their contract before surrendering, and that they desired to retain possession till that was done. Not having complied with the terms of the lease, according to plaintiff's evidence, some notice or act equiv- alent to a notice was necessary on the part of the defendants saying to him that they abandoned the premises and surrendered the property. The bare statement that they had ceased sawing, and had discharged their mill bands, and the knowledge of these SUEEENDEB COVENANT TO EETURN IN GOOD CONDITION. 133 facts by the plaintiff, are not equivalent to such notice. If they liad left the property in the condition required by the lease, or, in other words, if they had fully performed the contract, and then abandoned the premises, with the knowledge of the plain- tiff, there would be much force in the contention that ipso facto the lease was at an end, and no formal surrender necessary. But the premises were not in this condition. According to plaintiff's testimony, this fact was admitted by White, who had the exclusive charge of defendants' business at the mill, and told plaintiff that Mr. Watson, who had negotiated the lease on behalf of defendants, would be there in a day or two, fix the matter up, and turn the property over. No statement was made to plaintiff that defendants did not intend to put the property in the condition contracted for, and, as already stated, he had the legal right to presume that they would do so. If the jury be- lieved the testimony of White, the property was surrendered, and the plaintiff in possession. If they believed the evidence for the plaintiff, there was no surrender, and the mill was legally in the possession and under the control of the defendants. The question was fairly and properly submitted to the jury. 2. It is alleged as error that the court refused to instruct the jury that " Mr. White, in his capacity as agent or superintend- ent of the job of cutting these logs, had no implied authority arising from his position as such agent, which would authorize him to make any arrangement with the plaintiff looking towards the continuance of the defendants' tenancy after the logs were cut, and the mill shut down for good." Upon this point the court instructs the jury as follows : " The cutting of the lumber itself would determine the contract if no words were spoken. For instance, the defendants hired the mill for a specified time and purpose; when that time arrived, and the purpose was ful- filled by the cutting of the timber , then their rights, of course, by operation of law, merely, terminated, and they could not hold it longer without the plaintiff's consenting to a renewal of the lease. That is clear, and if no words were spoken other than discharging the employees and closing the mill, and leaving it in the plaintiff's hands, it went back to the plaintiff's hands, and he could not recover on the mere ground that it was in the hands of the defendants. But I think this also : that although White was the foreman mainly for the purpose of cutting the timber under the lease, and acting for the defendants in this suit, and being on the ground and acting for them when an objection was made by the plaintiff for the reason assigned by him. White had the power to make the arrngement claimed by the defendant to have been made ; and if the plaintiff refused to take the mill 134 ESTATES LESS THAN FREEHOLD. back on the ground assigned, and White said, « All right. Wait a few days. Major Watson will be up to surrender the mill over to you,' — and he relied upon it, it would not be in the possession of the plaintiff meanwhile, but it would still be under the control and dominion of the defendants." The court erred, as already shown, in holding, as it did in the language above quoted, that cutting the timber and shutting down the mill terminated the lease. He entirely omitted certain obliga- tions resting upon defendants, and specified in the lease, which have above been pointed out ; but this part of the charge was favorable to the defendants, and was in exact accord with their theory. The conversation with White, as detailed by plaintiff, made no new arrangement with the defendants, nor changed the terms of the lease. Plaintiff testified that White told him that he had no authority to turn over the mill ; that he did not offer to turn it over; and that Watson would attend to that when he came up. Defendants resided in Grand Rapids, while the mill was situated in Osceola County, a long distance away. Only one of the defendants visited the mill during the time of the lease, and he only once or twice. White was their sole agent there, with authority to employ and discharge men, and had the supervision of the entire business. If he had no authority to make the statement attributed to him, which counsel and court seem to have construed into some new arrangement, it is equally clear that he had no authority to bind his principal by turning the property over with the conditions of the lease unfulfilled. But the plaintiff, under the case made by him, did not recognize the lease as terminated, or that he was making a new arrangement contrary to its terms. The evidence of this conversation was competent only for the purpose of showing that the lease was not in fact surrendered. It was a part of the res gestae. The charge complained of was erroneous, and im- properly limited the issue involved. It is evident, however, that the jury found plaintiff's statement of the conversation to be correct. This being so, the error was without prejudice; for, if plaintifl"s version were correct, there was no surrender, and no change of possession. The court erred, but against the plaintiff, in saying to the jury that, in the absence of spoken words, the mill was left in plaintiff's hands and went back to him. Plaintiff was employed by the defendants, was himself discharged, but the rent was unpaid. He lived in a house near by, and saw all the preparations for closing. But the legal result of all this was not to restore to plaintiff the possession and control of the property, because the mill was not in the condition in which defendants agreed it should be when turned over, and SUBRENDEE COVENANT TO RETURN IN GOOD CONDITION. 135 defendants had signified no intention not to perform their con- tract in this regard. 3. Defendants insist that the declaration is based solelyupon the theory that tiie fire occurred while they were in possession of the property ; that, if the fire had occurred after the termination of the lease, defendants could only be held liable in an action on the case for negligence, and not in an action based upon the vio- lation of contract obligations, and that, therefore, it was error for the court to instruct the jury that, " even if the mill were turned over to the plaintiff, yet if, by reason of the carelessness and mismanagement of trhe defendants, fire had been taken from the mill, and put into the saw-dust adjoining, it would constitute a breach of contract; and if the fire remained there without the knowledge of the plaintiff, and afterwards broke out and de- stroyed the mill, and it is traceable to the carelessness of the defendants, then they are liable." The. declaration set forth the contract in full; alleged the duties of the defendants under it; that the defendants wholly neglected such duty and their obliga- tions under the contract ; neglected to keep a night watchman ; neglected due care and diligence to preserve the property from damage and destruction by fire ; allowed the slabs, saw-dust and other debris to accumulate in and about and immediately adjoining the mill ; negligently threw and deposited the fire from the furnace into, upon and about such saw-dust and other debris. AH these acts were alleged to be breaches of the contract. Plaintiff planted his right of action solely upon the violation of the contract, and, by his proof, connected the injury directly with such violation. It is immaterial, therefore, whether the injury resulted before or after the termination of the lease. In either event, an action would lie upon the contract. It is true the declaration alleged that defendants had not returned the property to plaintiff ; but this was not the gist of the action, nor did it of itself afford an independent ground of recovery. We think the instruction was correct. 4. The court instructed the jury that whether the mill was turned over to plaintiff or not, if he knew of the fact that fire was smoldering in the sawdust after defendants' agent went away and left it, and knew of the approaching danger by reason of it, and took no measures to prevent it from burning the mill, it would be a bar to this action. Defendants insist that the proofs conclusively show that plaintiff did know of the fire there; that it was likely at any time to break out; that he took no steps to watch it or prevent it; and that, therefore, he was in law guilty of contributory negligence. The mill was closed down about 4 o'clock p. m. July 11th. Plaintiff testified thatthe mill 136 ESTATES LESS THAN EEEEHOLD. had caught fire from the sawdust pile shortly before a temporary- shut down for the 4th of July ; that he had no knowledge of any fire after that; that on the llth, when the mill closed down, he told White that "it was very dangerous to leave the mill in that condition ; that the mill had already caught fire, and was liable to again ; and that sawdust held fire in it any time almost." Defendants kept a watchman upon the property during the night of the llth, and plaintiff testified that he did not know until after the fire that they had withdrawn the watchman. The fire occurred on the morning of the 13th, about 4 o'clock. Certainly the plaintiff was not called upon to watch the property, or take any steps to protect it, until he knew that the watchman was withdrawn, and that -defendants had withdrawn all protection over the property. Whether this was so was a question of fact for the jury. If the plaintiflTs evidence be true in regard to throwing the fire from the furnace into the sawdust and slabs, White, whose negligence was the negligence of the defendants, was guilty of gross negligence, and a gross disregard of plaintiff's rights and his own employer's interests. The testimony on plaintiffs part showed that he knew that the sawdust pile had repeatedly taken fire, and that he had helped to put it out. Under these circumstances, the law will not relieve defendants from their own negligence without showing that plaintiff knew that they had abandoned the property, and should thereafter exercise no care or con- trol over it. It is not entirely clear that any obligation rested upon him to look after the property until the lease was terminated. Plaintiff had no actual knowledge that there was fire in the sawdust. He knew that there was danger of its being there, and so informed White. White, recognizing the danger, and knowing the provisions of the contract, kept a watchman the following night, and then withdrew him, without any notice to plaintiff. Under these circumstances, it would be difficult to discover any legal obligation upon the part of plaintiff to watch the property. The charge was as favorable to the defendants as was justified by the evidence. Judgment affirmed. The other justices concurred. Tenant Mnst Surrender Possession Before Asserting and Enforcing Title Adverse to I^andlord. Barlow v. Dahm, 97 Ala. 414; 12 So. 293; see Dahm v. Barlow, 93 Ala. 120; 9 So. 598. Haralson, J. The complainants filed this bill on the 1st day of October, 1890, against John Dahm, Timothy Meaher, James RIGHT OF LESSEE TO DENT LESSOR'S TITLE. 137 K. and Augustas Meaher, for the sale for partition of certain real estate described in the bill, alleging that they owed an undivided third interest therein, and the defendants the other two-thirds as tenants in common, and that it could not be equit- ably divided in kind. Complainants claim, to have derived title to their one-third undivided interest in said land on the 17th day of May, 1890, by deed of conveyance from one Glennon and his wife. The defendants, answering the bill, claim that they and those from whom they claim have been in the open, notorious, and continuous adverse possession of said land ever since 1847, claiming it as their own, and exercis- ing acts of ownership over it; that the complainants knew that defendants were in the adverse possession of said land, claiming it as their own property, when they received said deed to an undivided third of it from said Glennon and wife ; that complainants were tenants of defendants under a written lease, and have been paying their rents therefor, and they have never repudiated said tenancy, nor claimed as their own any portion of said land, but occupy the whole of it as tenants of defendants, and not otherwise, and have never surrendered, or offered to surrender, the possession of said property to defend- ants. The proof shows that the complainants. Barlow & Co., rented and went into the possession of the whole of this land from defendants, or those under whom they claim, on the 1st day of August, 1883, by a written lease of that date, for the term of five years — from that date to the 1st of August, 1888 — at the annual renting of $150, payable quarterly, with the privilege of renewal of the lease for five years more at the same rental; and that on the 1st day of August, 1888, accord- ing to the terms of said lease, complainants accepted a written renewal of said lease, on the same terms as before, for another period of five years, expiring on the 1st day of August, 1893, and had paid their rents up to the 1st of Octo- ber, 1890, the end of the last quarter, and were in possession of the property. After this bill was filed these defend- ants commenced ejectment in the circuit court of Mobile County against these complainants, Barlow & Co., to recover the possession of said land, which they then occupied under said lease from defendants, the conten- tion being on their part that, because complainants claimed to have purchased a part of the leasehold from a third person, during the continuance of their lease from defendants, in hos- tility, as defendants claimed, to their title, and had filed this bill while thus in possession, asking a sale of the property for par- tition between themselves and defendants as tenants in common, 138 ESTATES LESS THAN FKEEHOLD. they thereby repudiated and forfeited their lease, and defend- ants were entitled to recover the possession of the land. In that case the defendants, complainants here, did not question the title of the plaintiffs, these defendants, to two-thirds of the land, but claimed that they had leased only a two-thirds interest in the land from the Meahers, from whom these defendants derive title, and that they had acquired the interest of the other co- tenant of the Meahers. The case was decided in the circuit court against these defendants. On an appeal to this court we held that these facts did not constitute a forfeiture of the lease, and that the payment and reception of the rent up to November 1 (October 1), 1890, was a recognition of the lease, and an admission of an existing tenancy, which precluded these defendants from insisting in that action upon a forfeit- ure of the lease. Dahm v. Barlow, 93 Ala. 120; 9 South Rep. 598. Without going into the details of this case, and a discussion of the several assignments of error, we confine consideration of the cause to a single principle, which is decisive of it, consistently with what we held in Dahm V. Barlow, supra. The only ground upon which complainants seek to maintain this bill is that on the 17th of May, 1890, during the existence of their lease from defendants, and their possession under it, they acquired by purchase from a third person an undivided third interest in the land. Admitting that defend- ants own two-thirds of it, and asserting their own claim to a third interest therein, they file this bill for a sale of said land for par- tition while still holding possession of the entire premises under their lease from the Meahers, without having surrendered the possession to their landlords. This, as tenants, they are not permitted to do. "The landlord can only be required to liti- gate title with his tenant upon the vantage ground of posses- sion." Houston V. Farris, 71 Ala. 570; Caldwell v. Smith, 77 Ala. 167; Norwood v. Kirby, 70 Ala. 397. The decree of the chancellor is affirmed. SECTION n. TENANCr AT WILL AND FEOM TEAK TO YEAR. Say V. Stoddard, 27 Ohio St. 478. Bryant w. Vincent, 100 Mich. 426; 59 N. "W. 169. Weed V. Lindsay, 88 6a. 686; 16 S. E. 836. McEissich v. Ashley, 98 Cal. 422; 33 F. 729. Assignee of a Tenant at Will Acquires No Title as Against the Liessor. Say V. Stoddard, 27 Ohio St. 478. The lease provided that the tenancy was to last " as long as the parties shall mutually agree to continue renting under this ASSIGNMENT BT TENANT AT WILL. 13& agreement," to pay a rental of $13. 50 per month, and either party was to put an end to the tenancy by giving four days' notice in writing. Celey, the lessee, sublet two rooms to plain- tiff, who remained in possession after the lessee had abandoned the premises. Defendant, the sou of the lessor, eight days afterward took forcible possession of the premises against the remonstrance of the plaintiff, removing all the doors and windows of the rooms of the house. Scott, Chief Judge. The contract of lease between Stoddard, Sr., and Celey, set out in the petition in the court below, cre- ated by its express terms a tenancy at will. True, the rent was to be $13, and was to be paid by Stoddard & Co. out of Celey's wages, monthly or half-monthly, as might be most convenient. But the renting was to continue for " so long as the parties shall mutually agree to continue the renting under this agree- ment.", And again : " Either party may put an end to said renting by giving the other party four days' notice, in writing, that this renting is to cease at the expiration of four days from the service of such notice on the other party." It is clear from this language, that the tenant was to hold at the will of the lessor, though while the tenancy continued the rent was to be paid monthly or half-monthly. The character of the tenancy is not affected by the fact that four days' notice of its determina- tion is provided for in the contract ; for in a general tenancy at will reasonable notice must be given by the party whose will determines it, to the other party ; and the contract here fixes the length of that notice. It is said by Blackstone : " An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor, and the tenant by force of this lease obtains possession." 2 Bl. Com. 145 ; Litt. sec. 68. Such tenant has no certain indefeasible estate, nothing that can be assigned by him to any other, because the lessor may determine at his will, and put him out whenever he pleases. 2 Bl. Com. 145; Taylor's Landl. & Ten. 48. Tenancy at will may be determined by implication of law. Such implication will arise on the death of either of the parties. So, if a tenant at will assigns over his estate to another, who enters on the land, he is a disseisor, and the landlord may have an action of trespass against him. Greenl. Cruise on Real Prop. 244 ; Taylor's Landl. & Ten. 48. So, also, a desertion of the premises by the lessee, puts an end to a tenancy at will. For he thereby discontinues his lawful possession and terminates his relation to his lessor, which is only of a personal character, and he ceases to have any interest in the premises which he can transfer or control. 140 ESTATES LESS THAN FREEHOLD. The plaintiff shows by his petition that Stoddard, the lessor, died Nov. 1, 1869, leaving the defendant his devisee of the premises. Celey, the lessee, continHed in possession, till Decem- ber 1, when he undertook to sublet a part of the premises to the plaintiff. It is not alleged that the defendant assented to this continuance of possession or subletting. On the 7th of Decem- ber, the lessee, Celey, removed wholly from the premises ; and eight days afterward the grievances occurred of which the plaintiff acquired no rights by bis contract with Celey, for the latter had none which he could transfer. The facts stated do not show that the relation of landlord and tenant was ever created between the parties to this suit. There was neither privity of estate nor of contract between them. And the acts complained of were but the lawful exercise of the rights incident to the defendant's ownership of the premises and are not charged to have been attended with any unnecessary inter- ference either with the plaintiff's person or property. We think the court below properly sustained the demurrer to the plaintiff's petition, and its judgment is affirmed. Tenancy from Year to Tear, when Reservation of Rent Necessary. Bryant v. Vincent, 100 Mich. 426; 59 N. W. 169. Grant, J. Plaintiff brought summary proceedings under the statute to recover possession of the premises described iu the complaint as " that portion of the basement in the Brant block, about 21 feet in width by about 75 feet in length, under what is now the post-office in the city of Benton Harbor, being the south 75 feet of the basement room." Plaintiff is the owner of the premises known as the " Hotel Benton Block." July 21, 1890, he executed a lease to the defendant for five years of the hotel and portions of the basement, not, however, including the portion here in dispute. Defendant held possession under a parol agree- ment. What that agreement was is the main fact in dispute. Mr. Brant's version is that it was agreed that defendant might prepare the room for occupancy, and use it until complainant needed it for some other purpose. Defendant's version is that he was to prepare it for occupancy, and have possession during the life of his hotel lease, or until July 16, 1895. The agree- ment was made about August 1, 1892. Complainant, under the theory that defendant was tenant at will, gave defendant three months' notice to quit, and then instituted this suit. The court instructed the jury, that if they found the agreement as claimed TENANCY FEOM TEAK TO TEAK, 141 by complainant, he was entitled to recover. If, on the contrary, they found the agreement as claimed by defendant, it was a tenancy from year to year, and his possession was lawful until the end of the second year. Verdict and judgment were for the defendant, It is conceded that, under the defendant's version, the lease, resting in parol, was void under the statute of frauds. Did it constitute a tenancy from year to year? We think it did. Defendant's testimony tended to show that he immediately per- formed his part of the agreement, and fitted up the room at an expense of $140. He had been in possession one year and a greater part of the second, without objection. It is argued on behalf of the complainant, that there was no annual rent reserved, and therefore, even under the defendant's evidence, the agree- ment constituted a tenancy at will. It is true that " the reserva- tion of annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year." Jackson v. Bradt, 2 Caines, 169; Rich v. Bolton, 46 Vt. 84. In the latter case many authorities will be found cited. But clearly this rule is not applicable to a parol tenancy for years, void under the statute, where the entire rent has been paid in advance. Under the defendant's evidence he had a lease which, if reduced to writing, would have been valid for five years. He entered into possession of the term. We think there is no well considered authority holding that he was not a tenant from year to year. The fact that no annual rent is reserved is not conclusive of the character of the tenancy. Where the owner of a farm rented a portion of it by parol for four years, the lessee agreeing to inclose the premises with a fence by way of rent, it was held that a tenancy from year to year was established. People v. Rickert, 8 Cow. 226; Jackson v. Bryan, 1 Johns. 322; Tayl. Landl. & Ten., § 56. The court, at complainant's request, instructed the jury that defendant could not recover under any agreement made before the written lease, but only upon a verbal one made afterwards. The court, under objections, permitted evidence of conversations between the parties in regard to this room prior to the execu- tion of the written lease, and this is alleged as an error, on the ground that all prior negotiations were merged in it. This would be true if defendant relied upon the written lease. But the testimony was competent as bearing upon the subsequent parol agreement. Had the defendant relied upon a previous or contemporary agreement, the evidence would have been incom- petent. The introduction of the written lease, on the part of the 142 ESTATES LESS THAN FREEHOLD. defendant, is alleged as error. We do not see how this could have prejudiced the complainant. But, be that as it may, it was competent to introduce it for the purpose of showing the term of the parol lease, which defendant testified was to run to the end of the written lease. "We find no error in the record, and the judgment is affirmed. The other justices concurred. Possession Under a Contract for a liSase is a Tenancy at TVill. Weed V. Lindsay, 86 Ga. 686; 15 S. B. 836. Bleckley, C. J. The contract of June 4, 1889, signed by the parties, respectively, a copy of which is in the report, was not a present demise or lease which granted to Lindsay & Mor- gan an immediate estate for years, but was an agreement to give them a future lease for ten years from the time the building to be erected was «' ready for occupation." It is plain from the nature of the agreement and the language of the instrument that the contract was executory on both sides. It was not contemplated that Lindsay & Morgan should become tenants to Weed, crown- era of any interest in the premises, or that they should be liable for the payment of the stipulated rent, if Weed did not erect the building and make it ready for occupation. Until that time should ariive they were to remain without any interest in the property whatever. If the building, as they contend, has not yet been completed and made ready for occupation according to the agreement, the time appointed for an interest to vest in them as lessees, and for their occupa- tion to commence, has not yet arrived ; and so they are ■without any legal ownership of an estate for years, or of a right to possession by virtue of such owner- ship. The instrument executed as evidence of the contract contains no words of present demise or any equivalent terms, nor does it fix with certainty either the amount of the annual rent to be paid, or appoint any time for the completion of the build- ing and the consequent commencement of the 10 years' term. The amount of the rent was to, or might, depend in part upon the cost of the building, and when the building would be ready for occupation would necessarily depend on contingencies to be met and dealt with after the agreement was signed. It is mani- fest that the words " Upon these conditions, Joseph D. Weed agrees to give them a lease for tea years from the date the building is ready for occupation," ought to be construed, not as ■a, stipulation for further assurance, but as an undertaking to ere- POSSESSION UNDER CONTRACT FOR LEASE. 143 ate a lease not previously existing, and to pass by it an estate not before conveyed nor attempted to be conveyed. It could not have been the intention of the parties either that Lindsay & Morgan should be owners of the contemplated terms of years, or any term in the premises, before the annual rent which they were to pay began to accrue, or that this rent was to begin to accrue before the building was ready for occupation. In distin- guishing between a lease and a mere executory agreement for a lease, the intention of the parties, as manifested by the writing, is a controlling element. Lloyd Bldg. Cont., § 88; 12 Amer. & Eng. Euc. Law, 980; 1 Wood Landl. & Ten., § 179; McAdam Landl.& Ten.,§ 41 ; 1 Tayl. Landl. & Ten., § 37 etseq. ; 6 Lawson Rights, Eem. & Pr., § 2801. For cases illustrating the distinc- tion, see Sturgion v. Painter, Noy. 128; Jackson v. Ashburner, 5 Term E. 163 ; Hegan v. Johnson, 2 Taunt. 148 ; Jackson v. Bulkley, 2 Wend. 433 ; People v. Kelsey, 38 Barb. 269 ; 14 Abb. Pr. 372; McGrath v. City of Boston, 103 Mass. 369; Adams v. Hagger, 4 Q. B. Div. 480 ; Jackson v. Kisselbrack, 10 Johns. 536; Kabley v. Gaslight Co., 102 Mass. 392. No lease creating a term of 10 years, and vesting the same in Lindsay & Morgan, having ever come into existence as contem- plated by the agreemeut, what was the effect of admitting them into possession by virtue of the consent given by Weed in his letter to them of September 27, 1889, in which he says : "I simply write to tell you, as Mr. Brown told me you wished to begin to occupy the building before it was entirely finished, that the rent will begin from the time you begin to occupy it. I have no objection whatever to your moving into the building as soon as you find it can serve your convenience to do so." (Mr. Brown was the contractor employed by Weed to construct the building.) Was this permission a license to occupy for 10 years without the execution of any lease, or was it, as events turned out, (possession having been taken under it, and Lindsay & Morgan having afterwards refused to join in the execution of a lease), the creation of a tenancy at will? We think it was the latter, and, no rent having at any time been paid and accepted, this is in accordance with the current of authority. 1 Tayl. Landl. & Ten., § 60; 1 Washb. Eeal Prop., p. 376; Tied. Eeal. Prop., § 216; 6 Lawson Eight, Eem. 6 Pr., § 2809; 12 Amer. & Eng. Enc. Law, 670; Chapman v. Towner, 6 Mees. & W. 100; Anderson v. Eailway Co., 3 El. & El. 614; Anderson v. Prindle, 23 Wend. 616; Dunne v. Trus- tees, 39 111. 578. In Hamerton v. Stead, 3 Barn. & C. 483, Littledale, J. said: " Where parties enter under a mere agree- ment for a future lease, they are tenants at will ; and, if rent is 144 ESTATES LESS THAN FKEEHOLD. paid under the agreement, they become tenants from year to year, determinable on the execution of the lease contracted for, that being the primary contract." Perhaps as the law of remedy in the superior court now stands, the payment of rent would have raised, not merely a tenancy from year to year, but one for the whole term covered by the lease. Walsh v. Longs- dale, 21 Ch. Div. 9. It is plain that, consistently with the written agreement of the parties, Lindsay & Morgan would have no right to occupy and use the premises for 10 years unless they were willing to pay therefor the stipulated rent, nor unless they were willing to occupy as lessees, and not merely as tenants at will. In this litigation they seek, as they did in some of the pre- liminary steps which led to it, to take the position, and have all the rights of lessees on terms different from any which Weed has^ ever assented to; that is, they want to hold at a less annual rent than they have agreed to pay. They make this claim because, as they contend, Weed has not erected and made ready for occupation such a building with respect to plan and finish as was contem- plated. If this contention be well founded in fact, the result will be, not that they could occupy for 10 years on terms differ- ent from those agreed upon, but that they could, if they did not choose to waive their objection and unite in the lease and pay the stipulated rent, exercise their option between vacating the premises, and compelling, by a proper equitable action, a specific performance on the part of Weed of his undertaking. Weed's violation of his contract would also furnish a cause of action in their favor for any damages resulting from his failure to comply. Perhaps if they had, under protest, paid rent according to the contract, they might have done so without sur- rendering any substantial right, legal or equitable. Lamare v. Dixon, L. R. 6 H. L. 514. When this proceeding was com- menced, they had not pursued any course open to them, but had endeavored to pursue one not open ; they had declined to join in the lease ; had not paid rent at the stipulated rate ; had entered no suit for specific performance ; and had refused to vacate the premises. Having brought themselves into the posi- tion of mere tenants at will, section 2291 of the code applies to them. The two-months notice having been given, they were subject to eviction as tenants holding over. Code, §§ 4077— 4081. The pleadings in the case were simply the affidavit and counter affidavit provided for by the sections of the Code last cited. The pending application in the superior court to enjoin the prosecution of this proceeding was not operative, because no injunction, temporary or permanent, had been ordered, or any restraining order granted. What w& TENANCY FEOM TEAB TO TEAK TERMINATED BY NOTICE, 145 have ruled embraces all that is fundamental in the case and effectually controls the final result of this proceeding in the city court. The court erred in not granting a new trial. Judgment reversed. Tenancy from Tear to Tear Terminated by Notice. McEissick v. Asbby, 98 Cal. 422; 33 F. 729. Commissioner's decision affirmed by the court. Belcher, C. This action is in the nature of ejectment, and was commenced April 22, 1889. It is alleged in the complaint that the plaintiff now owns, and for more than eight years he and his grantors have owned, certain described lands in Lassen County ; that defendant leased the said lands of plaintiff from year to year, commencing on the 1st day of March, 1886, down to the 1st day of March, 1889, for the sum of $180 rent, which defendant agreed and promised to pay plaintiff annually there- for ; that on the 27th day of February, 1889, plaintiff duly notified defendant that he would not renew the lease, and requested him to vacate and surrender the premises ; that de- fendant refused, and still refuses, to vacate the premises, or to deliver the same to the plaintiff, and has withheld, and still withholds, the possession thereof from the plaintiff, and has ousted and ejected plaintiff therefrom to his damage in the sum of $50; that defendant has failed and refused to pay to plaintiff the said rent for the year next before the 1st day of March, 1889, amounting to $180; and that the whole of that sum is due and owing to plaintiff from defendant. Wherefore judg- ment is asked that defendant be ejected from the said lands, and the plaintiff restored to the possession thereof, and also for damages in the sum of $50, and for rents due in the sum of $180, with costs. A general and special demurrer to the com- plaint was interposed by the defendant, but what ruling, if any, was made upon it does not appear from the record. An answer was also filed by defendant, denying all the averments of the complaint. The case was tried by the court, without a jury, and the findings upon all the issues were in favor of the plaintiff, except that the damages were fixed at one dollar. Judgment was then entered in accordance with the findings, from which, and from an order denying his motion for new trial, the defend- ant appeals. 1, Appellant contends that the complaint fails to state facts sufficient to constitute a cause of action, because — First, if it is regarded as a complaint for unlawful detainer, then, in order 10 146 ESTATES LESS THAN FEEEHOLD. to maintain the action , it was necessary that a demand for the possession of the premises should have been made after the expiration of the term, and no such demand is alleged to have been made; and, second, if it is regarded as an ordinary complaint in ejectment, then an averment that defendant was in possession of the demanded premises, or of some part thereof, at the time of the commencement of the action, was necessary, and that no such averment was made. Section 1161 of the Code of Civil Procedure, cited by appellant, provides as follows: " A tenant of real property for a term less than life is guilty of unlawful detainer (1) when he continues in possession, in person or by subtenant, of the property or any part thereof, after the expiration of the term for which it is let to him, without the permission of his landlord, or the successor in estate of his land- lord, if any there be ; but in case of a tenancy at will, it must first be terminated by notice as prescribed in the Civil Code." Here the defendant was not a tenant at will, but for a fixed term, which expired March 1, 1889. The hiring of a thing terminates at the end of the term agreed upon. Section 1933, Civil Code. The notice served was only to the effect that plaintiff would not renew the lease, and that defendant must give up possession of the property. Such a notice was not necessary, but it served to inform defendant that, if he continued in possession of the prop- erty after the expiration of the term for which it was let to him, he would do so without the permission of his landlord, and would be guilty of unlawful detainer. Under the facts stated, we think the plaintiff had a right to re-enter when the terra expired, and to maintain an action for possession without previous notice or demand. Section 793, Civil Code; Canning v. Fibush, 77 Cal. 196 ; 19 Pac. Rep. 376. And, if the complaint is regarded as an ordinary one in ejectment, we think the same conclusions must follow. It alleges, in substance, that plaintiff leased the demanded premises to the defendant ; that the lease had expired ; and that defendant refuses to vacate the premises, and " has withheld, and still withholds, the possession thereof from the plaintiff." This clearly implies that defendant is in possession; and it must be held a sufficient averment of that fact, certainly, in the absence of a demurrer that the complaint is ambiguous or uncertain in that regard. But no such objection was taken. 2. Appellant also contends that the findings were all contrary to the evidence, and not justified thereby. There was, however, evidence tending to support the findings, and, under the well- settled rule as to conflicting evidence, we think it must be held sufficient here. The defendant did not, in giving his testimony, deny, so far as we can discover, that he held the land in contro- TENANCY FROM TEAK TO YEAR TERMINATED BY NOTICE. 147' Tersy during the years 1886 and 1887 under leases from the plaintiff, but he claimed that the lease was not renewed for the jear 1888, Admitting this to be so, still he could not deny the plaintiff's title without first surrendering to him the possession, and this he had evidently failed and refused to do. 3. When the plaintiff was upon the stand as a witness in his own behalf, his attorney asked him the following questions : '« State whether or not, since he went on it, in 1886, up to the time you made the demand on him, he continues to occupy and use the land. State whether or not the defendant still occupies this disputed tract of land." The questions were objected to as irrelevant, incompetent, and immaterial, and the objections were overruled, and exceptions taken. It is urged that these rulings were erroneous but we see no error in them. It was entirely proper for the plaintiff to show that defendant continued in the occupancy of the land, and was withholding its possession from him. 4. The plaintiff was permitted, over the objections of de- fendant, to read in evidence a copy of the record in the United States land office at Susanville, certified by the register of the office to be a true and correct copy, showing that on May 15, 1880, one John P. McKissick had entered the lands in question as desert lands ; and also a deed executed by the said McKissick on December 9, 1881, conveying the said lands to the plaintiff. It is urged now that the copy offered was not competent evi- dence to show the entry; that the only competent evidence for that purpose would have been a certified copy of the certificate of purchase or receiver's receipt, the original of which was in the general land office at Washington ; and that the deed was not admissible, for the reason that the plaintiff failed to connect himself with the government title, or show that the title had passed from the government. We see no prej- udicial error in the rulings complained of under this head. The object undoubtedly was to show privity with the government, but, without such showing, the action might be maintained. We advise that the judgment and order be affirmed. We concur: Searls, C. ; Haynes, C. Per Curiam. For the reasons given in the foregoing opinion Ihe judgment and order are affirmed. 148 ESTATES LESS THAN FBEEHOLD. SECTION m. ESTATES AT SUFFEBANCE. BnsseU v. Fabyan, 34 N. H. 218. Tenancy at Sufferance Explained. Russell V. Fabyan, 34 N. H. 218. Bell, J. Fabyan entered into possession of the premises io question under a written lease, to continue for five years from March 20, 1847. He remained in possession until April 29, 1853, when the buildings were burned down, more than a year after the lease expired. During the interval between the 20th of March, 1852, and April 29, 1853, he was either a tenant at sufferance, a tenant at will, or a disseisor. The general principle is that a tenant who, without any agreement, holds over after his term has expired, is a tenant at sufferance. 2 Bla. Com. 150; 4 Kent Com. 116; Livingston v. Tanner, 12 Barb. 483. No act of the tenant alone can change this relation ; but if the lessor, or owner of the estate, by the acceptance of rent, or by any other act indicates his assent to the continuance of the tenancy, the tenant becomes a tenant at will, upon the same terms, so far as they are applicable, of his previous lease. Con- way V. Starkweather, 1 Denio, 113. In this case there is no evidence to justify an inference of assent by the lessor to any continuance of the tenancy, but, on the contrary, very direct and conclusive evidence, in the demand of possession, to the contrary; while the reply made to that demand by Fabyan negatives any consent on his part to remain tenant of the plaintiff. There was, then, no tenancy in fact between these parties at the time of the fire, and the defendant was consequently either a disseisor or a tenant at sufferance. When the demand of possession was made upon Fabyan, upon the 22d of March, 1852, the demand was refused, Fabyan say- ing he had taken a lease of the property from Dyer. The pre- vious demands seem to have been premature, and before the expiration of the lease, but they were refused upon the same ground as the last, and that refusal might constitute a waiver of any objection to the time of their being made. Such a denial of the right of the lessor, though not a forfeit- ure of a lease for years, is sufficient to put an end to a tenancy at will, or at sufferance, if the lessor elects so to regard it; and he may, if he so choose, bring his action against the tenant as a disseisor, without entry or notice, and may maintain against him ESTATES AT SUFFERANCE. 149 any action of tort, as if he had originally entered by wrong. Delaney v. Ga Nun, 12 Barb. 120. But as this result depends on the lessor's election, and nothing appears in the present case to indicate such election, the tenant must be regarded as a tenant at sufferance. To ascertain the liability of a tenant at sufferance for the loss of buildings by fire it becomes material to inquire what is the nature of this kind of tenancy ; and we have examined the books accessible to us, to trace the particulars in which it differs from the case of a party who originally enters by wrong. All the books agree that he retains the possession as a wrong- doer, just as a disseisor acquires and retains his possession by wrong. Den v. Adams, 7 Hals. 99; 2 Bla. Com, 150; 4 Kent Com. 116. By the assent of the parties to the continuance of the possession thus wrongfully obtained or retained, the wrong is purged, and the occupant becomes a tenant at will or otherwise to the owner. 10 Vin. Ab. 416 ; Estate, D, C, 2. If no such assent appears, the tenant is entitled to no notice to quit. Jackson v. McLeod, 12 Barb. 483; 12 Johns. 182; 1 Cru. Dig., tit. 9, § 10. The owner may make his entry at once upon the premises, or he may commence an action of ejectment or real action. Liv- ingston V. Tanner, 12 Barb. 483 ; Den v. Adams, 7 Hals. 99. And it makes no difference that the lessee, after his term has expired, has taken a new lease for years of a stranger rendering rent, which has been paid ; for he still remains tenant at suffer- ance as to the first lessor, as we held in Preston v. Love, Noy, 120; 10 Vin. Ab. 416. We have been able to discover but one point of difference between the case of the disseisor and the tenant at sufferance, which is that the owner cannot maintain an action of trespass against his tenant by sufferance until he has entered upon the premises; 4 Kent Com. 116 ; a point to which we shall have occasion further to advert. Upon this view the liability of the defendant Fabyan, to answer for the loss by fire, which is the subject of this suit, is regulated, not by the rule applicable to tenants under contract, or holding by right, but by that which governs the case of the disseisor and unqualified wrong-doer. By Stat. 6 Anne, chap. 31, made perpetual 10 Anne, chap. 14 (1708, 1712), no action or process whatever shall be had, main- tained, or prosecuted against any person in whose house or chamber any fire shall accidentally begin. Co. Litt. 67, n. 377 ; 3 Bla. Com. 228, n.; 1 Com. Dig. 209, Action for Negligence, A. 6. It is not necessary to consider whether this statute haa 150 ESTATES LESS THAN FEEEHOLD. ■been adopted here, though it is strongly recommended by its intrinsic equity, because at all events a different rule applies in this case. The mere disseisor or trespasser, who enters without right upon the land of another, is responsible for any damage which results from any of his wrongful acts. Such a disseisor is liable for any damage occasioned by him, whether willful or negligent. He had no right to build any fire upon the premises, and if mis- fortune resulted from it he must bear the loss. For this purpose the defendant Fabyan stands in the position of a disseisor. II. Assuming that Fabyan is liable for the loss of these build- ings, the question arises, whether he is liable in this form of action; and, as we have remarked, he is not liable in trespass. Chancellor Kent (4 Com. 116), says: " A tenant at sufferance is one that comes into possession of land by lawful title, but holdeth over by wrong after the determination of his interest. He has only a naked possession, and no estate which he can transfer, or transmit, or which is capable of enlargement by release, for he stands in no privity to his landlord, nor is he entitled to notice to quit; and, independent of the statute, he is not liable to pay any rent. He holds by the laches of the landlord, who may enter and put an end to the tenancy when he pleases. But before entry he cannot maintain an action of trespass against the tenant by sufferance." 1 Cru. Dig., tit. 9, chap. 2 ; Eising v. Stanard, 17 Mass. 282 ; Keay v. Goodwin, 16 Mass. 1, 4; 2 Bla. Com. 150; Co, Litt. 57, b; Livingston v. Tanner, 12 Barb. 483; Trevillian v. Andrew, 5 Mod. 384. If, then, Fabyan is answerable at all, he must be liable to the action of trespass on the case. There is no evidence of any entry, and the demand of possession, whatever its other effects may be, is not an entry, nor do we find it made equivalent to an entry. The case of West v. Trende, Cro. Car. 187; s. c. Jones, 124, 224, is a decision that case lies in such a case. " Action upon the case. Where he was and yet is possessed of a lease for divers years adtunc et adhuc ventur, of a house, and being so possessed demised it to the defendant for six months, and after the six months expired, the defendant being permitted by the plaintiff to occupy the said house for two months longer, he, the defendant, during the time pulled down the windows, etc. Stone moved in arrest of judgment that this action lies not, for it was the plaintiff's folly to permit the defendant to continue in possession, and to be a tenant at suf- ferance, and not to take course for his security ; and if he should ESTATES AT SUFFERANCE. 151 have an action, it should be an action of trespass, as Littleton, § 71. If tenant at will hath destroyed the house demised, or shop demised, an action of trespass lies, and not an action upon the case. But all the court conceived that an action of trespass or an action upon the case may well be brought, at the plaintiff's election, and properly in this case it ought to be an action upon the case, to recover as much as he may be damnified, because he is subject to an action of waste ; and therefore it is reason that he should have his remedy by action upon the case. Whereupon rule was given that judgment should be entered for the plaintiff." III. It seems clear that if Fabyan is to be regarded as a wrong-doer in retaining the possession of the plaintiff's prop- erty after his lease had expired, all who aided, assisted, en- couraged, or employed him to retain this possession, must be regarded as equally tort-feasors, and equally responsible for any damage resulting from his wrongful acts. No more direct act could be done to encourage a tenant in keeping possession, than that of leasing to him the property, unless it was that of giving him a bond of indemnity, such as is stated in this case. In wrongs of this class all are principals, and the defendant. Dyer, must be held equally responsible with Fabyan; and it seems clear that as Dyer could justify in an action of trespass under the authority of Fabyan, so as, like him, not to be liable in that action, he must be liable with him in an action upon the case. Whether the allegations of the declarations are suitable to charge either of the defendants, we have not considered, as the court have not been furnished with a copy. IV. The case of Russell v. Fabyan, 7 Foster, 529, is not to be regarded as a decision of the question raised in this case, in relation to a sale of a supposed right of redemption as belong- ing to Burnham, after the first levy made upon the property. It was there held, upon the facts appearing in that case, that independent of the question of fraud in Burnham's deed to Russell, all Burnham's right of redeeming the levy, which might be made upon the attachment subsisting at the time of the deed, and of course good against it, passed to Russell. Upon this point there can be no question, and none is suggested. The question then arose whether, if Russell's deed proved to be fraudulent as to the creditors of Burnham, the right of redemp- tion did not pass to Dyer, by the sale on his second execution, so as to invalidate the tender made by Russell. This question might have been met and decided, but the case did not require it. It was held that whether Russell's title was good or bad, Fabyan, as his tenant, could not dispute it. He could be dis- 152 ESTATES LESS THAN FREEHOLD. charged from his liability to pay his rent, which was the subject of that action, only by an eviction by the lessor, or by some one who had a paramount title to his ; a mere outstanding title not put in exercise is not a defense. The defendant relied on an eviction on the 14th of June, 1848, as his defense. The sale of the right of redemption was made on the 31st of July following, and after that date there was no eviction, so that the attempt there was merely to show an outstanding but dormant title, which it proved would be no defense. And the court took the ground that Fabyan stood in no position to raise a question as to the validity of Kussell's title, except so far as the opposing title was the occasion of some disturbance of his estate. So far as the principles stated in that case are concerned, they appear to us sound and unanswerable. Whether, if the case had taken a different form, the result would have been in any degree differ- ent, it is not necessary to inquire. By our statute, every debtor whose land or any interest in land is sold or set off on execution, has a right to redeem by paying the appraised value, or sale price, with interest, within one year. Rev. Stat., chap. 195, § 13; chap. 196, § 5 (Comp. Stat. 601, 502). This right to redeem is also subject to be lev- ied upon and sold, as often as a creditor supposes he can realize any part of his debt by a sale, until some one of the levies or sales becomes absolute. But these sales have each inseparably connected with them the right of redemption. If the debtor has parted with his title before the levies are made while the prop- erty is under an attachment, that right of redemption is vested in his grantee, who, being the party interested (Eev. Stat., chap. 196, § 14), may redeem any sale or levy, if he pleases; the effect of his payment or tender for this purpose being of course dependent upon the state of facts existing at the time. So, if there is no attachment upon the property at the time of the debtor's conveyance, but his creditors levy upon the property, upon the ground that his conveyance was not made in good faith, and upon an adequate consideration, and so is fraud- ulent and void as to them, the effect is the same. Any creditor may levy his execution upon the right of redemption of any prior levy or sale, the deed of the debtor being without legal operation to place either the property itself or any interest in it out of the reach of his process. And the right of redemption, so long as it retains any value in the judgment of any creditor, remains liable to his levy ; but when the creditors have ex- hausted their legal remedies, the right of redemption, necessa- xily incident to every levy on real estate, still remains, and it is ESTATES AT SUFFERANCE. 153 the right not of the debtor, but of his grantee, who may exercise it at his pleasure. This we conceive was the position of the present case. The first levy by Dyer being founded on his attachment, took pre- cedence of Eussell's deed, but Russell had still the right to redeem as grantee of Burnham, whether his deed was valid as to creditors or not. When the right of redeeming the first levy was sold, on the ground that the deed to Russell was fraudulent and invalid, a right of redemption still remained to Enssell, and he had a right, as a party interested in the land, to pay or tender the amount of the first levy to Dyer, and so to discharge it. By that payment or tender it was effectually discharged, whatever might be the rights or duties of Dyer, or Russell, or any one else, growing out of the sale of the right of redemption upon Dyer's second execution, which, being founded upon no attach- ment, yia.a prima facie a nullity as to Russell, and was dependent for its effect upon the evidence that might be offered, showing Russell's deed void as to creditors. The present case stands free from any question growing out of the relation of landlord and tenant, as that relation is not alleged, and the lease of Russell had expired, and Dyer had never stood in that relation. The evidence offered that Burn- ham's deed to Russell was fraudulent as to his creditors, is not open to any objection of that kind, which was held decisive in 7 Foster. If the facts warrant that defense, the evidence is competent ; and if it should be shown that the deed to Russell was void as to creditors, and Dyer was one of that class, his sec- ond levy was good, if properly made, and the title to these premises passed to him, subject to his prior and any subsequent levy, and to Russell's right of redemption. As the ofier of the defendant to prove Burnham's deed to Russell to be fraudulent and void as to creditors, and as to the defendant. Dyer, as one of them, was refused, there must be a new trial. 154 JOINT ESTATES. CHAPTER Vm. JOINT ESTATES. Mette V. Feltgen, 148 lU. 357; 36 N. E. 81. Thomburg v. Wiggins, 135 Ind. 178; 34 N. E. 999. Greenwood v, Marvin, 111 N. Y. 423; 19 N. E. 228. Barton c. Perry, 146 111. 71; 34 N. E. 60. Joint Tenancy and Tenancy in Common, as Modified by Statute. Mette V. Feltgen, 148 lU. 357; 36 N. E. 81. On rehearing. For former opinion, see 27 N. E. 911. Bailet, J. This was an action of ejectment brought by Anna M. Feltgen against Henry, August and Louis Mette to recover the undivided one-half of lots 8 and 9 in block 5 in Murray's addition to South Chicago. The defendants pleaded not guilty, and the cause being tried by the court, a jury being^ waived, it was found that the plaintiff was the owner in fee of an undivided one-half of the lots, and that the defendants were guilty of unlawfully withholding possession thereof from her. A motion by the defendants for a new trial being overruled, judgment was entered that the plaintiff recover possession of the undivided one-half of the lots, and that a writ of possession issue in her favor therefor. The defendants bring the record to this court by appeal. The facts are all admitted by stipulation, and are, in substance, as follows: On the 23d day of April, 1878, Theodore H. Schintz, the common source of title of the plaintiff and defendants, exe- cuted and delivered to Peter Mayer and Anna Mayer, his wife, a deed which, omitting the signature and certificate of acknowledgment, is as follows: "This indenture witnesseth that the grantor, Theodore H. Schintz, a bachelor, of the city of Chicago, in the county of Cook and State of Illinois, for the consideration of one dollar, conveys and quitclaims to Peter Mayer and Anna Mayer, his wife, not as tenants in common, but as joint tenants, of the city of Chicago, county of Cook and State of Illinois, all interest in the following described real estate, to wit, lots eight and nine in block five in Murray's addition to South Chicago, situated in the county of Cook and State of Illinois, hereby releasing and waiving all right under and by virtue of the homestead and exemption laws of this State. Dated this twenty-third day of April, 1878." Anna Mayer, one of the grantees in the deed, died intestate April 4, 1879, leaving, surviving her, her husband and cograntee, and JOINT TENANCY AND TENANCY IN COMMON. 155 also leaving the plaintiff, her daughter by a former marriage and her only heir at law, who was then a minor between 11 and 12 years of age. On the 16th day of February, 1882, Peter Mayer executed a deed conveying the lots to August Mette and Henry Mette, and on the same day the plaintiff, then being a minor between 14 and 15 years of age, executed a deed by which, for an expressed consideration of $50, she conveyed and quit-claimed to August and Henry Mette all her interest in the lots. On the 11th day of September, 1885, the plaintiff attained the age of 18 years, and on the 15th day of June, 1888, she executed, acknowl- edged, and recorded an instrument expressly revoking, annulling, and declaring void her deed executed during her infancy ; and July 13, 1888, as a further act of disaffirmance, she instituted this suit, and shortly thereafter commenced a suit in chancery to set the deed aside, and to recover her interest in the lots. August and Henry Mette, immediately after the execution of the deeds to them, together with their codefendant, Louis Mette, took possession of the lots, and excluded the plaintiff therefrom, and were in possession thereof, to the exclusion of the plaintiff, at the time of the commencement of this suit, and are still in possession. On the 12th day of January, 1884, August and Henry Mette executed to Louis Mette a deed by which they con- veyed to him a fractional interest in the lots. The conveyance by the plaintiff to August and Henry Mette, made during her minority, having been expressly revoked and disaffirmed by her after becoming of age, may be disregarded, and the rights of the parties are to be determined precisely as though no such conveyance had been made. The claim of the defendants is that the estate of Peter Mayer and Anna Mayer, his wife, in the lots, was a joint tenancy, with the common-law incident of survivorship, and consequently that, upon the death of Anna Mayer, Peter Mayer, by right of survivorship, became tenant of the lots in severalty, to the exclusion of the heir at law of Anna Mayer, and that Peter Mayer's conveyance of the lots to August and Henry Mette vested in them the entire estate. The plaintiff, on the other hand, insists that, whether the deed from Schintz to Peter Mayer and wife created a joint tenancy or not, it was, under our statute, a tenancy in respect to which there was no right of survivorship, and therefore that on the death of Anna Mayer her joint interest descended to and be- came vested in the plaintiff, as her sole heir at law. There can be no doubt that the parties in the Schintz deed intended thereby, to create an estate in joint tenancy, and not a tenancy in common ; and it must be admitted, we think, that the language employed was apt and sufficient for the accomplishment of that purpose. It 156 JOINT ESTATES. only remains to be determined whether, under our statute, the right of survivorship can still be regarded as an incident of an estate in joint tenancy. The doubt on this question grows out of the apparent conflict between section 5, c. 30, of the Revised Statutes, entitled " Conveyances," and section 1, c. 76, entitled " Joint Rights and Obligations." These statutes are in pari materia, and are to be construed together, and very much aid in such construction may be obtained by examining their history, as a part of the legislation of the State. On the 13th day of January, 1821, the general assembly passed «' An act concerning partitions and joint rights and obligations," the first and second sections of which were as follows: " Section 1. Be it enacted," etc., " that all joint tenants or tenants in common who now are, or hereafter shall be, possessed of any estate of inheritance, or estate less than those of inheritance, either in their own right or in the right of their wives, may be compelled to make partitions between them of such lands, tenements or hereditaments as they now hold or hereafter shall hold, as joint tenants, or tenants in common. Provided, however, that no such partition, between joint tenants or tenants in common, who hold or shall hold estate for life or years, with others holding equal or greater estates, shall prejudice any entitled to the reversion or remainder, after the death of the tenants for life, or after the expiration of the years. Sec. 2. That if partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or transmissible to executors or adminis- trators, and be considered to every intent and purpose, in the same view as if such deceased joint tenants had been tenants in common." Afterwards, on January 31, 1827, the general assembly passed "An act concerning conveyances of real prop- erty," the fifth section of which was as follows: " No estate in joint tenancy, in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise or conveyance what- ever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors or trustees (unless otherwise expressly declared as aforesaid), shall be deemed to be a tenancy in common." In the Revised Stat- utes of 1845, section 2 of the act of 1821 appears as section 1 of chapter 56, entitled *' Joint Rights and Obligations," while section 5 of the act of 1827 appears as section 5 of chapter 24, entitled " Conveyances," both chapters having been ap- proved on the same day. In the Revised Statutes of JOINT TENANCY AND TENANCY IN COltfMON. 157 1874, section 2 of the act of 1821 again appears ias section 1 of " An act to revise the law in relation to joint rights and obliga- tions," approved February 25, 1874, and section 5 of the act of 1827 appears as section 5 of the " Act concerning convey- ances," approved March 29, 1872, and in force July 1, 1872. Both sections have now been on the statute books concurrently since 1827, and both, since their original enactment, have been twice included, without change of phraseology, in general revis- sions of the statutes. It seems plain that the act of 1821 undertook to deal only with joint tenancies and tenancies in common held by the tenants in their own rights, or in right of their wives. Such is the express limitation contained in the language of section 1, and that limitation undoubtedly was intended to apply to and control the entire act. No other tenancies were within the legislative con- templation. The act, therefore, had no application toestates held by executors, trustees, or others holding estates en autre droit. But as to estates held by the tenants in their own rights, or in right of their wives, whether held as joint tenants or tenants in common, the act gave the right to compel partition, and in cases of joint tenants, if partition was not made, the right of survivorship was taken away; and it was provided that the part of the tenant dying first should pass by descent or devise, and be subject to debts, dower charges, etc., and be transmissible to executors or administrators, and be considered, to every intent and purpose, in the same view as if the deceased joint tenant had been a tenant in common. The effect of this statute, clearly, was to practically abolish joint tenancies, where the estates were held by the tenants in their own rights or in right of their wives, or, that which is the same thing, to convert them into tenancies in common. The right of survivorship, which is and always has been the principal and distinguishing incident of joint tenancies, was taken away ; and upon the death of the ten- ant, without having made partition, the estate was to be treated and considered, to every intent and purpose, as a tenancy in common. The act of 1827 made no reference to that of 1821, but, as it was the later expression of the legislative will, it had the effect of repealing or modifying the former act, in so far as it was inconsistent therewith. It becomes important, then, in the first place, to determine the proper interpretation to be placed upon that act, standing by itself. In using without explanation or qualification the terms "joint tenancy " and "tenancy in com- mon," — terms having, at common law, a fixed and well under- stood meaning, — it was doubtless intended to use them in their 158 JOINT ESTATES. ordinary common-law sense. Its effect was to restore the right to create estates in joint tenancy, as known at common law, in so far as that right was abrogated by the act of 1821, rather by tacit recognition than by express words, and then undertook to change the rule of presumptions obtaining at common law where a conveyance of land was made to two or more persons. Where an estate was conveyed to a plurality of persons without adding any restrictive, exclusive, or explan- atory words, such conveyance, at common law, was held to coq- stitute the grantees joint tenants, and not tenants in common ; it being necessary, in order to create a tenancy in common by deed, to add exclusive or explanatory words, so as to expressly limit the estate to the grantees, to hold as tenants in common and not as joint tenants. 2 Bl. Comm. 180, 193. By section 5 of the act of 1827, this rule, except in cases of conveyances to executors or trustees, was precisely reversed. Under that section, a conveyance to two or more persons, without restrict- ive or explanatory words, created a tenancy in common ; and, in order to create a joint tenancy, the estate had to be expressly declared to pass, not in tenancy in common, but in joint tenancy. If the question had arisen at any time after the pass- age of the act of 1827, and prior to the Revision of 1845, it would have presented no material difficulty. The rule estab- lished by the act of 1827 would have been held to prevail, that being the latest act; and as that act clearly recog- nized the existence of estates in joint tenancy, a well- known species of common law estate, and expressly pro- vided the mode in which they might be created, the result would have logically followed, that joint estates created in the manner prescribed were joint tenancies, in the common-law sense, and possessing the qualities and incidents which the com- mon law attaches to them, notwithstanding the provisions of the act of 1821 to the contrary. The view that the estate in joint tenancy referred to in the act of 1827 was the common-law estate, with its common-law incidents, is strengthened by refer- ence to the provisions of the act in relation to the tenancy when vested in executors or trustees. As we have already seen, tenancies of that character are not within the purview of the act of 1821, nor affected by its provisions. They were doubtless excluded from the operation of that act, on account of the mani- fest impropriety of compelling partition between joint tenants holding in a trust capacity, and the obvious advantages result- ing from an application of the rule of survivorship to joint tenants of that character. The act of 1827 also expressly excepts from its operation executors and trustees, thus keepino- JOINT TENANCY AND TENANCY IN COMMON. 159 in force, as to them, the common-law rule, but provides that in other cases, to create a joint tenancy, it must be expressly declared in the deed to be such, and not a tenancy in common. But there is nothing in the act of 1827 furnishing the least indi- cation that the legislature intended to attach to joint tenancies, where the tenants held in their own right, any other or difierent incidents than those which properly belonged to the estate where executors or trustees were the tenants. It is beyond question that, in the latter class of joint tenancies, it was the intention of the act that the incident of survivorship should pre- Tail ; and, as the act furnishes no indication to the contrary, it would seem to be equally clear that the same rule was intended to apply to those where the tenants were such in their own right. Up to the passage of the Ee vised Statutes of 1845, the law on the subject,' so far as it was declared by statute, was to be found in the act of 1821, as modified by the act of 1827 ; the latter act prevailing, and furnishing the rule in all matters where the two were inconsistent with each other. It would seem, therefore, that the re-enactmeut of these two statutes, without change of phraseology, in the revision of 1845, and again in the revision of 1874, was intended as a readoption of the statutory law on the subject in precisely the condition in which it was before any revision was made. It has been held, and we think correctly, that, where there are repugnant provisions in a revised code, those portions which are transcribed from later statutes must be deemed to repeal sections adopted earlier, or transcribed from earlier statutes, or to so modify them as to produce agreement between such repugnant provisions. End. Interp. St., § 183. In Ex parte Eay, 45 Ala. 15, a revised code had been enacted em- bracing various prior statutes enacted at different times, and, in giving construction to a particular portion of such code, it was said: "All the several sections on the same subject should be construed together. By being embraced in the code, they are formed into a system on the subject to which they refer, and by the adoption of the code the legislature has, as it were, laid its hands on them, and given them new life and vitality, as a body. For this reason, if for no other, they should be interpreted and construed together, and, if possible, made consistent, and in har- mony with each other. If, however, this, in any particular case, cannot be done, then the earlier sections, or sections taken from earlier acts, must be held to be repealed, or so modified as to be in agreement with the later sections." See, also, O'Neal v. Kob- inson, 45 Ala. 526 ; State v. Heidorn, 74 Mo. 410. Section 2, c. 131, of the Eevised Statutes of 1874, is as follows: "The 160 JOINT ESTATES. provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such prior provisions, and not as a new enactment." As applicable to our present Eevised Statutes, this section furnishes a rule of construction. Under it, as it would seem, a statute gains no additional force by being included in a revision, but is only continued as a part of our statutory law, having the same force and effect as before. Under this rule, the fact that one of the statutes now under consideration was re-enacted more recently than the other in the revision of 1874 is imma- terial, as in both cases an old statute was continued in force, and no new one enacted. Under these circumstances, we are dis- posed to hold that the two statutes under consideration still sus- tain to each other the same relations which existed prior to the revision of 1845, and that they should be construed now the same as they would have been construed prior to that revision. As a consequence, the act of 1827 must still be regarded as repealing or modifying the act of 1821, to the extent of per- mitting parties to create the common-law estate of joint tenancy, with its common-law incidents, by expressly declaring, in a deed running to two or more grantees, that the estate conveyed shall pass, not in tenancy in common, but in joint tenancy. Applying these conclusions to the case before us, it follows that upon the death of Anna Mayer, intestate, her share passed to her husband by right of survivorship, and that he thereby became vested with the entire estate as tenant in severalty. It follows that no estate or interest in the land passed by inherit- ance to Anna M. Feltgen, the plaintiff, on the death of her mother, but that the conveyance from Peter Mayer to the defendants vested in them the entire estate. The plaintiff hav- ing failed to establish any interest in the land, the judgment in her favor is erroneous. It will therefore be reversed, and the cause will be remanded to the superior court. Judgment reversed. Magrddee, J. Of the two sections of the statute under con- sideration in this case, that adopted in 1821 is now in force as section 1 of the act in regard to joint rights and obligations, and that adopted in 1827 is now in force as section 5 of the convey- ance act. The readoption of these two sections by the legislature, at several different times since their original passage, indicates an intention on the part of the lawmaking power that they should both stand together, and that the one should not operate as a repeal of the other. There is no necessary conflict between them. They can be so construed as to harmonize with each other. Section 1 refers to both personal and real property. JOINT TENANCY AND TENANCY IN COMMON. 161 Section 5 refers to real property alone. Section 1, standing by itself, is broad enough to abolish the right of survivorship, as between joint tenants, and to convert the estate of joint tenancy into an estate of tenancy in common. But section 5 was evi- dently intended to be a qualification of the broad rule laid down in section 1, so far as lands, tenements and hereditaments are concerned, and was designed to limit the application of the rule to cases where the grant, devise, or convey- ance did not, in express terms, create an estate of joint ten- ancy. Section 5 is merely a recognition of the rule that the law will effectuate the intentions of parties, where such inten- tion is clearly manifest, whether in wills, deeds, or contracts. It is a mistake to suppose that the estate of joint tenancy has^ been prohibited by our statute. The creation of such an estate is not forbidden. It does not exist by operation of law, but it may exist by the express declaration of the parties. No other construction could be given to the language of section 5. By the terms of that section, an estate in joint tenancy may be held in lands under a conveyance, where the premises mentioned in the conveyance are thereby expressly ♦' declared to pass, not in tenancy in common, but in joint tenancy." Joint tenancy shall be deemed to be tenancy in common, " unless otherwise expressly declared," except, of course, where the grant or devise is to executors and trustees. The law will construe the estate to be a tenancy in common, and not a joint tenancy, where no con- trary intention is expressly declared in the instrument; but where the instrument expressly declares that the land shall pass, not in tenancy in common, but in joint tenancy, the law will permit the estate in joint tenancy to exist. It will not do to say that section 1 abolished the right of survivorship, and that section 5 merely permitted a joint tenancy without the right of survivorship to be created by an express declaration in the devise, grant, or conveyance. The doctrine of survivorship, or jus accres~ cendi, is the distinguishing incident of title by joint tenancy ; and therefore, at common law, the entire tenancy or estate, upon the deathof any of the joint tenants, went to the survivors." 4 Kent Comm. 360. It can hardly be presumed that the legislature, in authorizing an estate by joint tenancy to be created by an express declaration in the grant or devise, referred to those technical joint tenancies arising from the unities of time, title, interest, and possession. If such a construction of section 5 i» to prevail, then no right of survivorship was reserved to exe- cutors and trustees by that section. In both sections 1 and 5, joint tenancy is spoken of as the antithesis of tenancy in com- mon ; and the distinguishing feature of the latter is that a tenant II 162 JOINT ESTATES. in common is, as to his own undivided share, precisely in the position of the owner of an entire and separate estate. In Kent's Commentaries we find the following : " In New York, * * » estates in joint tenancy were abolished, except in executors and other trustees, unless the estate was expressly declared, in the deed or will creating it, to pass in joint tenancy. * • * In the States of Maine, * * * Illinois, and Delaware, joint tenancy is placed under the same restrictions as in New York, and it cannot be created but by express words ; and, when lawfully created, it is presumed that the common-law incidents belonging to that tenancy follow." 4 Kent Comm. 361, 362. It follows that the estate in joint tenancy, which may be expressly declared to exist by section 5, includes the right of survivorship as one of its common-law incidents. In Arnold v. Jack's Ex'rs, 24 Pa. St. 57, the Supreme Court of Pennsylvania, in commenting upon a statute of that State whose language is the same as that of said section 1, say: " It is a question worthy of consideration whether the provisions of the act * * * apply to a joint tenancy created by express words in a devise." That is to say, it is a question worthy of consideration whether the provisions of section 1 would apply where the joint tenancy was created by express words in the grant or devise, even if that section had stood alone, and section 5 had never been enacted. In com- menting upon the legislation in reference to joint tenancy, Pomeroy, in his work on Equity Jurisprudence, says : " This legislation, throughout all the States, has declared that a convey- ance of land to two or more grantees shall, unless a contrary intention is clearly expressed, create an ownership in common, and not a joint ownership." 1 Pom. Eq. Jur., § 408. In Stimp- son V. Batterman, 5 Cush. 153, the devise was to the " children and survivor or survivors of them ; " and it was held that these were apt words to create an estate of joint tenancy, and that the children took as joint tenants. In Mittel v. Karl, 133 111. 65 ; 24 N. E. 553, it was held that a deed to a man and his wife, and " the survivor of them, in his or her own right," gave to the grantee dying first an estate for life, with remainder in fee to the sur- vivor. What is the substantial difference between deeding or devising land to two persons, and the survivor of them, and deeding or devising land to two persons to be held in joint ten- ancy? The distinguishing feature of joint tenancy is the right of the survivor to take the whole estate. If the statute does not prohibit the conveyance or devise of land to two persons, and the survivor of them, so as to give the survivor the right to lake the whole estate, it is difficult to see why the statute should TENANCY IN ENTIRETY. 163 be construed as prohibiting land from being held in joint ten- ancy, so far as the right of the survivorship is involved in the joint tenancy, if the deed or devise expressly declares that such land shall be held in joint tenancy, and not in tenancy in com- mon. Evidently, the statute does not prevent parties from con- veying or devising their lands so as to enforce the right of sur- vivorship, provided they indicate their intentions by clear and express declarations in the deed or will. The question here dis- cussed has never before been fully and fairly presented to this court, as arising directly out of the facts involved. If, in any decisions heretofore made, expressions have been made use of ■which are seemingly at variance with these views, such expres- sions cannot be regarded otherwise than as mere dicta. It fol- lows from what has been said that the deed from Schintz to Peter Mayer and Anna Mayer so far conveyed to them an estate in joint tenancy as that Peter Mayer, the survivor, took the whole title in fee to the lots, after the death of his wife. There- fore, the judgment below should have been for the defendants. Tenancy in Entirety. Thombnrg v. Wiggins, 136 Ind. 178 ; 34 N. E. 999. Dailet, J. This was an action instituted in the court below, in two paragraphs, in the first of which appellees allege, in substance, that on and before December 15, 1884, one Lemuel Wiggins was the owner of a certain tract of real estate therein described, containing eighty acres; that on said day said Lemuel and his wife, Mary, executed and delivered to the appel- lees a warranty deed, conveying to them the fee simple of said real estate ; that at the time of said conveyance the appellees were, ever since have been, and now are, husband and wife; that said deed conveyed to the appellees the title to said real estate which they took and accepted, ever since have held, and now hold by entireties and not otherwise ; that appellees hold their title to said real estate by said deed of Lemuel Wiggins, and not otherwise; that on the 24th " day of April, 1877, Isaac R. Howard and Isaac N. Gaston, who were defendants below, recovered a judgment in the Randolph circuit court for the sum of $403.70 and costs, against one John T. Burroughs and the appellee, Daniel S. Wiggins, as partners, doing business under the firm name of Burroughs & Wiggins; that on May 12, 1886, said Howard and Gaston caused an execution to be issued on said judgment and placed in the hands of the appellant. Thorn- burg, as sheriff of said county, and directed him to levy the 164 JOINT ESTATES. same on said real estate, and that said sheriff did, on the 25th. day of May, 1886, levy said execution on said real estate, or on the one-half interest in value thereof, taken as property of said appellant, Daniel S. Wiggins, to satisfy said writ ; that pursu- ant to the levy thereof said sheriff proceeded by the direction of said Howard and Gaston to advertise said real estate for sale under said execution and levy to make said debt, and did, on the 8th day of June, advertise the same for sale on the 3d day of July, 1886, and will, on said day, sell the same, unless re- strained and enjoined from so doing by the court; that said Daniel S. Wiggins has no interest in said premises, subject to sale thereon ; that the appellees hold the title thereto as tenants by entireties, and not otherwise; that the sale of said tract on said execution would cast a cloud on the appellee's title," etc. The second paragraph is the same as the first, in substantial averments, except that in this paragraph the appellees set out as a part thereof a copy of the deed under which they claim title to said real estate as such tenants by entireties. The granting clause of the deed is as follows : *' This inden- ture witnesseth, that Lemuel Wiggins and Mary Wiggins, his wife, of Randolph County, in the State of Indiana, convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins, his wife, in joint tenancy," etc. Appellants separately and severally demurred to each para- graph of the complaint, and their demurrers were overruled bj' the court, to which the appellants excepted, and refusing to answer the complaint, judgment was rendered in favor of appel- lees on said demurrers. Appellants appeal, assigning as errors the overruling of said demurrers, and urge that the appellees under the deed took as joint tenants, and hence that the husband's interest is subject to levy and sale upon execution. A joint tenancy is an estate held by two or more persons jointly, so that during the lives of all they are equally entitled to the enjoyment of the land, or its equivalent in rents and profits, but, upon the death of one his share vests in the survivor or survivors until there be but one survivor, when the estate becomes one in severalty in him and descends to his heirs upon his death. It must always arise by purchase, and cannot be created by descent. Such estates may be created in fee, for life, for years, or even in remainder. But the estate held by each tenant must be alike. Joint tenancy may be destroyed by anything which destroys the unity of title. Our law aims to prevent their creation and they cannot arise, except by the instrument providing for such tenancy. Griffin v. Lynch, 16 Ind. 396. TENANCY IN ENTIEETY. 165 The 9th Am. and Eng. Enoy. of Law, 850, says: " Husband and wife are, at common law, one person, so that when realty or personalty vests in them both equally * * * they take as one person, they take but one estate as a corporation would take. In the case of realty, they are seised not per my et ^per tout, as joint tenants are, but simply per tout; both are seised of the whole, and each being seized of the entirety, they are called tenants by the entirety, and the estate is an estate by entire- ties. * * * Estates by entireties may be created by will, by instrument of gift or purchase, and even by inheritance. Each "tenant is seised of the whole, the estate is inseverable — cannot be partitioned ; neither husband nor wife can alone affect the inheritance, the survivor's right to the whole." This tenancy has been spoken of as " that peculiar estate "which arises upon the conveyance of lands to two persons who are, at the time, husband and wife, commonly called estates by entirety." As to the general features of estates by entireties there is little room for controversy, and there is none between counsel. Our statute re-enacts the common law. Arnold v. Arnold, 30 Ind. 305; Davis v. Clark, 26 Ind. 424. Strictly speaking, estates by entireties are not joint tenancies. Chandler v. Cheney, 37 Ind. 391; Hulettv. Inlow, 57 Ind. 412. The husband and wife being seised not of moieties, but both seised of the entirety per tout and not per my. Jones v. Chand- ler, 40 Ind. 588; Davis v. Clark, supra; Arnold v. Arnold, supra. It has been said by this court in some of the earlier decisions that no particular words are necessary. A conveyance which would make two persons joint tenants will make a husband and wife tenants by the entirety. It is not even necessary that they be described as such or their marital relation referred to. Mor- rison V. Seybold, 92 Ind. 298; Hadlock v. Gray, 104 Ind. 596; Dodge V. Kinzy, 101 Ind. 102; Hulett v. Inlow, supra; Chand- ler V. Cheney, supra. But the court has said that the general rule may be defeated by the expression of conditions, limitations, and stipulations, in the conveyance, which clearly indicate the creation of a different estate. Hadlock v. Gray, supra; Edwards v. Beall, 75 Ind. 401. Having its origin in the fiction or common-law unity of husband and wife, the courts of some States have held that married women's acts, extending their rights, destroyed estates by entirety, but this court holds otherwise. Carver v. Smith, 90 Ind. 222. And the greater weight of authority is in its favor. Our 166 JOINT ESTATES. decisions hold that neither, alone, can alienate such estate. Jones V. Chandler, supra; Morrison v. Seybold, supra. There can be no partition. Chandler v. Cheney, supra. A mortgage executed by the husband alone is void. Jones v^ Chandler, supra. And the same is true of a mortgage executed by both to secure a debt of the husband. Dodge v. Kinzy, supra. And the wife cannot validate it by agreement with the pur- chaser to indemnify in case of loss arising on account of it. State ex rel. v. Kennett, 114 Ind. 160. A judgment against one of them is no lien upon it. Barren Creek Ditching Co. v. Beck, 99 Ind. 247; McConnell v. Martin, 52 Ind. 434; Othwein v. Thomas, 13 N. E. Eep. 564. Upon the death of one, the survivor takes the whole in fee. Arnold v. Arnold, supra. The deceased leaves no estate to pay debts. Simpson v. Pear- son, Admr., 31 Ind. 1. And, during their joint lives, there can be no sale of any part on execution against either. Carver v. Smith, supra; Dodge v. Kinzy, supra; Hulett v. Inlow, supra; Chandler v. Cheney, supra ; Davis v. Clark, supra ; McConnell v. Martin, supra; Cox's Admr. v. Wood, 20 Ind. 54. The statutes extending the rights of married women have no effect whatever upon estates' by entirety. Carver v. Smith, supra. Such estate is, in no sense, either the husband's or the wife's separate property. The husband may make a valid conveyance of his interest to his wife, because it is with her consent. Enyeart V. Kepler, 118 Ind. 34. The rule that husband and wife take by entireties was enacted in this territory in 1807, nine years before Indiana was vested with Statehood, and has been repeated in each succeeding revision of our statutes. It has thus been the law of real property, with US, for eighty-six years. Section 2922, E. S. 1881, provides that " All conveyances and devises of lands, or of any interest therein, made to two or more persons, except as provided in the next following section, shall be construed to create estates in common, and not in joint ten- ancy, unless it shall be expressed therein that the grantees or devisees shall hold the same in joint tenancy and to the survivor of them, or it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint tenancy." Section 2923 provides that the preceding section shall not apply to conveyances niade to husband and wife. TENANCY IN ENTIRETY. 167 Under a statute of the State of Michigan, similar in all its essential qualities to our own, the court held that " Where lands are conveyed, in fee, to husband and wife, they do not take as tenants in common." Fisher v. Provin, 25 Mich. 347. They take by entireties ; whatever would defeat the title of one would defeat the title of the other. Manwaring v. Powell, 40 Mich. 371. They hold neither as tenants in common nor as ordinary joint tenants. The survivor takes the whole. During the lives of both, neither has an absolute inheritable interest, neither can be said to own an undivided half, ^tna Ins. Co. v. Eesh, 40 Mich. 241 ; Allen v. Allen, 47 Mich. 74. While the rule of entireties was predicated upon a fiction, the legislative intent, in this State, has always been to preserve this estate, and has continued the peculiar statute for this purpose. Estates by entireties have been preserved as between husband and wife, although joint tenancies between unmarried persons have been abolished, so as to provide a mode by which a safe and suitable provision could be made for married women. Carver V. Smith, supra. " Where a rule of property has existed for seventy years and is sustained by a strong and uniform line of judicial decisions, there is but little room for the court to exercise its judgment on the reasons on which the rule was founded. Such a rule of prop- erty will be overruled only for the most cogent reasons and upon the strongest convictions of its incorrectness. It is evident that the legislature of 1881 did not intend to repeal the statutes establishing tenancies by entireties. They simply intended to enlarge, in some particulars, the separate power of the wife, which existed already under the acts of 1852 and the year fol- lowing. * * * « It did not abolish estates by entireties as between husband and wife, but provided that when a joint deed was made to husband and wife, they should hold by entireties, and not as joint tenants or tenants in common.' " Carver v. Smith, supra. In Chandler v. Cheney, supra, the court says: "It was a ■well-settled rule at common law, that the same form of words, which, if the grantees were unmarried, would have constituted them joint tenants, will, they being husband and wife, make them tenants by entirety. The rule has been changed by our statute above quoted." The whole trend of authorities, however, is in the direction of preserving such tenancies, where the grantees sustain the relation of husband and wife, unless from the language em- 168 JOINT ESTATES. ployed in the deed it is manifest that a different purpose was intended. Where a contrary intention is clearly expressed in the deed, a different rule obtains. "A husband and wife may take real estate of joint tenants or tenants in common, if the instrument creating the title u^se apt words for the purpose." 1 Preston on Estates, 132; 2 Blackstone's Com., Sherwood's note; 4 Kent's Com., side page 363 ; 1 Bishop on Married Women ; Freeman on Co-Tenancy, § 72; Fladung v. Rose, 58 Md. 13 (24). " And in case of devise and conveyances to husband and wife together, though it has been said that they can take only as tenants hy entireties, the prevailing rule is that, if the instru- ment expressly so provides, they may take as joint tenants or tenants in common." Stewart on Husband and Wife, §§ 307- 310 ; Tiedeman on Real Property, § 244. " And as by common law it was competent to make husband and wife tenants in common by proper words in the deed or devise," etc. Hoffman v. Stigers, 28 la. 310; Brown v. Brown, 32 N. E. Rep, 1128. " So it seems that husband and wife may, by express words, be made tenants in common by gift to them during coverture." McDermott v. French, 15 N. J. Eq. 80. In Haddock v. Gray, 104 Ind. 596 (599), a conveyance had been made to Isaac Cannon and Mary Cannon, who were hus- band and wife, during their natural lives, and the court says : " The language employed in the deed under examination plainly declares that Isaac and Mary Cannon are not to take as tenants by entirety. This result would follow from the provision de- stroying the survivorship, for this is the grand and essential characteristic of such a tenancy. * * * The whole force of the language employed is opposed to the theory that the deed creates an estate in fee in the husband and wife." The court further says: " It is true that where real property is conveyed to husband and wife jointly and there are no limit- ing words in the deed, they will take the estate as tenants in entirety * * * But while the general rule is as we have stated it, there may be conditions, limitations, and stipulations in the deed conveying the property, which will defeat the operation of the rule. The denial of this proposition involves the affirmation of the pioposition that a grantor is powerless to limit or define the estate which he grants, and this would conflict with the fundamental principle that a grantor may for himself, determine what estate he will grant. To deny this right would be to deny to parties the right to make their own contracts. It seems ESTATE IN PARTNERSHIP, 169 quite clear, upon principle, that a grantor and his gra,ntees may limit and define the estate granted by the one and accepted by the other, although the grantees be husband and wife." The court then adopts the language of Washburn, supra, and Tiedeman, supra. In Edwards v. Beall, supra, the court hold that when lands are granted husband and wife, as tenants in common, they will hold by moieties, as other distinct and individual persons would do. If, as contended by appellees, the rule prevail that the same •words which, if the grantees were unmarried, would have con- stituted them joint tenants, will, they being husband and wife, make them tenants by entireties, then it would result as a logical conclusion that husband and wife cannot be joint ten- ants. Because, by this rule, words, however apt or appropriate to create a joint tenancy, would, in a conveyance to husband and wife, result in an estate by entireties — joint tenancy would be superseded or put in abeyance by the estate created by law- tenancy by entirety. The result of such reasoning would be to destroy the con- tractual power of the parties where this relationship between the grantees is shown to exist. Any other process of reasoning would carry the rule too far, and we must hold it modified to the extent here indicated. Husband and wife, notwithstand- ing tenancies by entirety exist as they did under the common law, may take and hold lands for life, in joint tenancy, or in common, if appropriate language be expressed in the deed or will creating it, and we know of no more apt terms to create a joint tenancy in the grantees in this estate than the expression " convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins in joint tenancy." These words appear in the granting clause of the deed con- veying the land in question, and the estate accepted and held by the grantees is thereby limited, and they hold not by entireties but in joint tenancy. A joint tenant's interest in property is subject to execution. Freeman on Ex. 125. Judgment reversed, with instructions to the circuit court to sustain the demurrer to each paragraph of the complaint. Estate In Copartnership. Greenwood o. Marvin, 111 N. Y. 423; 19 N. B. 228. Appeal from supreme court, general term, fifth department. Action by Elizabeth W. Greenwood, as executrix and trustee 170 JOINT ESTATES. of the will of Simon L. Greenwood, deceased, against Elizabetk S. Marvin, Percy L. Marvin, as executor of George L. Marvin, deceased, and individually, and the heirs and legatees of George L. Marvin and George L. Kingston, executor, of Le Grand Marvin, deceased, for an accounting of the partnership affairs of George L. and Le Grand Marvin. The action was originally commenced by Simon L. Greenwood, as assignee of Le Grand Marvin's interest in the copartnership property. A decree hav- ing been entered for plaintiff, the defendants Elizabeth S. Mar- vin and Percy L. Marvin appeal from the order denying a new trial. KuGER, C. J, This action was originally brought by Simon L. Greenwood, assignee of Le Grand Marvin, to procure a dis- solution of the partnership theretofore existing between Le Grand and George L. Marvin, a determination as to what constituted the assets of the firm, the conversion of such assets into money, the payment of the firm obligations, and an accounting between the respective members in regard to all their partnership trans- actions, and a determination of their several interests in the residue of such property. The complaint contained express alle- gations that certain real property therein specifically described was partnership property, and constituted a part of the firm assets. The original answer of the defendants, while admitting the existence of the partnership, stated, with respect to the alle- gations relating to the ownership of the real property, as follows : " And they deny the said Le Grand and George L. Marvin, as copartners, owned or held in the name of said George L. Marvin, as trustee or otherwise, the real estate mentioned or described in said complaint, or any part thereof, or that they were at any time copartners in any real estate purchased with money or means charged to the respective partners; and said defendants deny that in any real estate mentioned or described in said complaint, the legal title to which is in the said George L. Marvin, said Le Grand Marvin had had at any time any interest whatever, except such as he may have obtained under and by virtue of a certain instrument in writing executed by the said Le Grand and George L. Marvin, of which the following is a copy." Then follows a copy of a partnership agreement between the parties,, executed in 1852, which is hereinafter recited, so far as it is material to the questions in this case. This answer is plainly evasive, and leaves the question of the ownership of the real estate, in terms, to depend upon the construction to be given to the agreement of 1852. Upon the trial of the action before the court without a jury, an interlocutory judgment was rendered, determining that certain portions of the real estate described in ESTATE IN PARTNERSHIP. 171 the complaint were partnership property, and ordering a refer- ence to take an account of the partnership affairs. This judg- ment was affirmed upon appeal to the general term, and from such judgment the defendants appeal to this court. It is not our intention to enter into a detailed examination of the evidence in the case, inasmuch as that duty has been most fully and satisfactorily performed by Mr. Justice Smith in his opinion at general term, and we will therefore refer only to such addi- tional facts and considerations as have been suggested upon the argument in this court. It has already been seen that the main question in this case is whether certain real estate, purchased dur- ing the existence of the partnership, and title taken in the name of George L. Marvin, was partnership property, and belonged to the firm, or was the individual property of George L. Marvin. As found by the trial court, the parties formed a partnership under the firm name of Le Grand & George L. Marvin, to do a land-agency and real-estate business at Buffalo, in 1838, which continued without practical change in its mode of doing business until 1864, when it was terminated by mutual consent. A writ- ten agreement of partnership was executed at the organization of the firm in 1838, by which the members were to become equal partners in a business already established, and which had for some time been carried on by Le Grand alone, and called " law and agency business, and business appertaining thereto." In 1842 other written agreements were made between the parties, by which it was provided, among other things, that the original firm was dissolved, but that its members should still continue the partnership, and complete the business of the old firm, but that George L. should be the legal owner of the property employed and acquired in such business, but should pay to Le Grand for his services his expenses, provided they did not exceed one-half the net profits of the concern, and should account to him for such net profits. In 1852 a third agreement was made between them, by which, among other things, it was provided that the partner- ship firm should continue at the equal benefit and risk of the respective parties, and declaring that " the real estate and the interest therein of said parties, whether standing in the name of said Le Grand or George, shall be and are for the equal benefit and interest of said parties, share and share alike, subject to all liabilities. * * * The personal property of said parties is now the equal property of said parties, share and share alike," with a single exception, not now important to notice. It further appeared that no settlement of partnership accounts had ever been had between the members of the firm, and, although they kept books of account, they were kept in ^uch a 172 JOINT ESTATES. manner that it was impossible to determine accurately therefrom how much either of the members of the firm had drawn from or paid to or for the firm, or what the respective interests of the parties were in the partnership assets. It did appear, however, that the purchase price of the real estate in question, which was mainly acquired in 1842, was paid from partnership funds; and the taxes and expenses thereon were generally paid indiffer- ently by both members of the firm, and its rents, issues, and profits had been collected, received, and accounted for to the firm, as firm property, indifferently by each of the parties. Much other evidence was also given in relation to this subject upon the trial, including the making of express and implied ad- missions and declarations by George L. Marvin in- connection with the possession, occupation, and leasing of such real estate, that the same belonged to the firm. Some declarations, written and oral, of Le Grand Marvin, made mostly between the spring of 1842 and the year 1852, to the effect that George L. Marvin was the owner of the property, were testified to on the part of the defendants; but we ascribe little weight to them, inas- much as there were obvious reasons, fully disclosed in the negotiations leading to the purchase of the property, on account of which at the time it was thought best by all parties that the title thereto should be vested in George L. Mar- vin, and the same reasons which dictated that course would con- tinue to influence any declarations thereafter made by Le Grand in reference to the subject. The only change made in the rights of the parties by the agreement of 1842, was to place the legal title of their property and acquisitions in George L. Marvin, instead of the firm. The equitable rights of the parties were to remain the same. The legal owner was to account to the other party for the net profits of the business, and no other mode of division is suggested than that of equality. If, therefore, that agreement effected any change in the relations of the parties, it operated as a temporary expedient to bridge over the period of Le Grand Marvin's pecuniary embarrassment, presumably with a view of restoring the original relations of the parties at some future time when it would be safe to do so. If that agreement was executed — as seems very probable — with the view of hindering and delaying the creditors of Le Grand, it was still competent for the parties, in the absence of interference by credit- ors, to rescind it at any time, and to restore to each other an equal legal interest in the property acquired under such agreement. We think this was intended to be accomplished by the contract of 1852. That agreement amounted to an unqualified acknowl- edgment by George L. Marvin that the parties had theretofore ESTATE IN PAETNEESHIP. 173 dealt in an acquired real estate, and owned such property as part- ners, although it nominally stood in the name of George L. Mar- vin ; and that such property was intended to be subjected to the obligations of the last partnership agreement. It did not purport to convey any property, or create any title ; but it acknowledged that the property previously acquired by the parties, both real and personal, belonged in equal proportions to the respective members of the firm. The appellants refer to the finding of the trial court that Le Grand Marvin did not acquire any interest in the real estate by the contract of 1852, and claim that the plain- tiff, not having appealed from such finding, is bound thereby, and cannot now question it. It is undoubtedly true that he did not acquire his interest at that time, inasmuch as the conten- tion of the plaintiff is that it was acquired at the time the prop- erty was bought ; and that finding, therefore, is not inconsistent with the position that the contract of 1852 is most persuasive evidence of the secret trust upon which the property was origi- nally obtained by George L. Marvin. If effect be given to all of the language employed by the parties in the agreement, it is not possible to give any substantial operation to this clause of the contract without holding it to apply to the lands in controversy standing in the name of George L. Marvin. The writing, like the other partnership agreements, was ambiguous in its language, and required extrinsic evidence to explain the nature of the business and the identity of the property referred to therein. Parol evidence for this purpose was entirely competent, and has been given with such fullness that nothing is left uncertain with reference to those questions. Fairchild v. Fairchild, 64 N. Y. 471. The question, therefore, as to whether the lands in dispute constituted partnership property, was one of fact upon all of the evidence in the case, and was determined by parol evidence in- dependent of the particular form which the transaction took, or the name in which the title was taken. Chester v. Dickerson, 54 N. Y. 1 ; Fairchild v. Fairchild, supra. The negotiations for its purchase were mainly conducted by Le Grand ; and when it was consummated by the delivery of the joint and several notes of George L., Asa and Le Grand Marvin in payment of the pur- chase price, Le Grand took an active part in the subsequent management and control of the property, and contributed to the payment of the obligations given upon its purchase. Consider- ing the equivocal character of the answer, the evident intent of the agreement of 1842, the unqualified acknowledgments of the contract of 1852, and the implied, as well as express, admissions of George L. Marvin subsequent to that time, it is conceding to 174 JOINT ESTATES. the appellants in this case all that can fairly be claimed for them, that they have made a question of conflicting evidence as to the ownership of the property in dispute, calling for a finding of fact by the trial court. The findings that such property was purchased for partnership purposes, and paid for with partnership funds having been affirmed by the general term, are necessarily con- clusive upon us as to the ownership and character of the prop- erty. Real estate purchased by a partnership firm, for partnership purposes, with partnership funds, is regarded in equity, so far as the firm and its creditors are concerned, as per- sonal property. Widows are not dowable therein. Sage v. Sher- man, 2 N. Y. 417. The interests of the respective members of the firm in such property are not required to be established by deed or instrument in writing under the statute of frauds (Chester v. Dickerson, 54 N. Y. 1; Bobbins v. Eobbins, 89 N. Y. 251), and the creation of trusts as to such interests is not prohibited by the statute of uses and trusts ( Fairchild v. Fairchild, 64 N. Y, 471 ; Marvin v. Marvin, 53 N. Y. 607 ; Ct. of Appeals, MS. opin- ion by Allen, J. ; Bobbins v. Bobbins, supra). After the dis- solution of a firm, and the claims of its creditors are discharged, and the equities of the respective partners in its assets are determined and satisfied, such property, so far as it is preserved in specie, and is awarded or conveyed to the respective members, undoubtedly loses its character of personal property, and again becomes subject to the rules governing the devolution of real estate. But so long as the partnership affairs remain unsettled, like all other assets of the firm its real estate is equitably pledged to creditors, and liable to be absorbed and disposed of in the process of liquidating the firm debts, and satisfying the claims of the respective partners as against each other. As was said by Church, C. J. , in the Fairchild case : "The English rule gives to the real estate of a partnership the character and qualities of personal property as to all persons, and the remainder, after paying debts and adjusting the equities of the partners, goes to the personal representatives, and not to the heir, probably on account of the great injustice which would result by the laws of inheritance in England. « • * g^t \^]^q American rule, that the remainder descends to the heir, does not affect the character of the property as partnership effects, except that the incidents and qualities of real estate are revived. It is divided as so much money capital would be ; but it resumes its original qualities. The same evidence, however, which would make it partnership property, for the purpose of paying debts and adjusting the equities between the copartners, would establish it for the pur- pose of final division." In this action we are concerned only ESTATE IN PARTNEESHIP. 175 ■with the character which the law ascribes to partnership prop- •erty while in the hands of the firm as a legal entity having abso- lute power of disposition thereof for the purposes of the part- nership business. When it becomes released from the trust imposed upon it as partnership property, it doubtless resumes the character of real estate ; but it is quite probable that such a result may never happen in this case, as one of the principal objects of the action is to secure its sale for the purpose of pay- ing firm debts, which appear to exist in considerable amounts, it is claimed by the respondent that the question as to the ownership of this real estate has been previously adjudicated in an action between George H. Marvin and Le Grand Marvin, in which Geo, L. Marvin was a privy, and bound by the decision of the case. We think there is much reason for this contention, but do not consider it necessary to pass upon it, in view of the similar result reached upon the other branch of the case. A further claim is made by the defendants that the plaintiff has not such an interest in the subject of the action as entitles her to maintain it. The argument is that the conveyance from Le Grand Marvin to Simon L. Greenwood was void, as being a transfer of real estate in trust for the benefit of the grantor, and was not one of the trusts authorized to be created by the statute of uses and trusts. We have already seen that such property, until discharged from the trust under which it was held as partnership property, cannot be regarded as real estate for any purpose. This action is not brought for the purpose of re- covering the possession of real estate or affecting his title. The question of the ownership of the real estate is merely incidental to the main object of the action, and would have arisen in the same manner upon a partnership accounting, if the real estate had not been mentioned in the pleadings, .Kingu, Barnes, 109 N. Y, 267 ; 16 N. E. Rep. 332. It was not improper to refer in the complaint to the character of the partnership assets, but it was wholly unnecessary in order to secure an accounting as to partnership affairs. If, however, we examine the character of the transfer from Le Grand Marvin to Greenwood, it will be seen that it does not purport to create a trust in real property, and, if such property does come to the hands of the assignee, it will result from the contingencies attending the judicial settle- ment of the partnership estate, and not through the force of the transfers to him. The evidence shows that Le Grand Marvin, before the commencement of the action, conveyed by an instru- ment in writing to Simon L. Greenwood, his heirs and assigns, forever, all of the property, both real, personal, and mixed, owned by him in partnership with George L. Marvin. It also 176 JOINT ESTATES. appeared that Greenwood, on the same date, executed and de- livered to Le Grand an instrument in writing declaring, in substance, that he held the property and its proceeds, after deducting therefrom payment for bis disbursements and services in managing, selling, and taking care of the same in trust to and for the use of Le Grand. The legal effect of the assignment referred to was to vest in the assignee the power of calling the others members of the firm to account, and to enforce the rights of Le Grand in any surplus in the assets which might remain after liquidation of the firm's obligations, and the adjustment of part- nership equities. It gave no present interest in specific articles of property, but armed the assignee with power to procure its conversion into money by sale and distribution of any residue of the proceeds, in whatever form they might exist, to the respect- ive members, according to their interests therein. The right thus transferred was a mere chose in action, subject, in respect to its mode of transfer, to the rules regulating the disposition of personal property alone. Section 1910, Code Civil Proc. We are not able to see any point of view from which appel- lants' contention can be supported. A large portion of the property conveyed was confessedly personal property, in respect to which the provision of the statute of uses and trusts confes- sedly has no application. The trust as to such property, if one was created, was undoubtedly valid, and conferred a right of action upon the assignee to enforce an accounting as to all the partnership assets. But the declaration of trust was confined to the interest passing by the assignment, and, as we have seen, that instrument conveyed no legal interest in the real estate of the firm. It may further be said that this claim of the appel- lants is in the nature of a plea in abatement, and assumes the right of Le Grand Marvin to recover his interest in the part- nership assets, but insists that the plaintiff has not succeeded to his rights. Such a plea is styled a " dilatory " one, as it does not affect the merits of the action, and is not favored in law. A proper regard for justice and the decent administration of the law requires that a litigation which has already raged for a quar- ter of a century over a question which the evidence seems to place beyond reasonable doubt, should be decided upon its mer- its, and not disposed of on a technical point which would remand the controversy to be begun anew between parties who are all represented in this action, and whose rights can be effectually settled herein. We are of the opinion that the defendants have no such interest in the question as entitles them to contest the validity of this assignment. Assuming that the real estate is partnership property, as we must, their only interest in that part PARTITION. 177 thereof which did not belong to their testator was to see that it was awarded to Le Grand Marvin, or some one who legally rep- resented him. As between Le Grand Marvin and his assignee, the conveyance of such interest was undoubtedly valid, and transferred the legal right to demand an accounting to such assignee. Le Grand Marvin was made a party defendant to this action, and would undoubtedly be bound by any adjudication made therein. It was said by Church, C J., in Sheridan v. Mayor, etc., 68 N. Y. 30, that " a plaintiff is the real party in interest under the code, if he has a valid transfer as against the assignor, and holds the legal title to the demand. The defend- ant has no legal interest to inquire further. A payment to, or recovery by, an assignee occupying this position, is a protection to the defendant against any claim that can be made by the assignor." See, also, Seymour v. Fellows, 77 N. Y. 178; Sullivan v. Bonesteel, 79 N. Y. 631. The right of the present plaintiff to continue the action as the executrix and legatee of Simon Greenwood was adjudicated by the order substituting her as plaintiff in his place. Smith v. Zalinski, 94 N. Y. 519. We have examined the other exceptions in the case with con- siderable care, but find none of sufficient materiality to lead us to believe that any error justifying a reversal of the judgment was committed by the trial court. The judgment is therefore affirmed, with costs. All concur. Partition — Involving a Number of Collateral Questions. Burton v. Perry, 146 lU. 71; 34 N. E. 60. Magrudee, J. The complainants, Perry and Henderson, file this bill for the partition of 40 acres of land, and claim to be the owners of an undivided half thereof. The defendants deny the ownership asserted by the complainants, and contend that they are themselves the owners of the whole 40 acres. There- fore the first question to be determined is whether the com- plainants own any interest in the land, and, if they do, what interest. It is not denied, that, on February 16, 1836, Isaac Cook, then holding the government title to 80 acres, of which the tract of 40 acres now in controversy is the south half, conveyed an un- divided half of said 80 acres to Asa W. Chambers and Sheldon Benedict. The complainants claim title through a conveyance from Benedict to Chambers, and three conveyances from Cham- bers to themselves. Chambers and Benedict left Chicago in 1838. Benedict has never been seen or heard of but once since 12 178 JOINT ESTATES. that time. It is said that in the year 1848 he made a visit to Chambers while the latter was living in the State of Texas, but after remaining with Chambers two or three weeks he disap- peared, and all further trace of him has been lost. He paid no taxes upon the property in question after he left Chicago, nor do the records of Cook County, where these premises are located, show that he has ever made any conveyance of the land, or insti- tuted any proceeding, or done any act indicating a claim of own- ership, since the year 1838. Chambers, according to his own testimony, was not in Chicago from 1838 to 1872. During a period of more than 30 years his whereabouts were unknown, and were only discovered in the year 1871, or thereabouts, after considerable search by a party acting for, or in concert with, the complainants. After his disappearance, in 1838, he paid no taxes upon the land, nor did he or his grantees thereafter take any steps to assert title thereto until the filing of the bill in this case, in July, 1873, All the facts, however, in the present record, which tend to show laches by reason of delay in beginning suit, were before this court in 1884, and again in 1888. Perry v. Burton, 111 111. 138; Id. 126 111. 599; 18 N. E. Rep. 653. The only witness who testifies that a deed was made by Benedict to Chambers is Chambers himself. The latter swears that after leaving Chicago, in 1838, he remained about ten months in Georgetown, Vermillion County, 111. ; that he went to Texas in June, 1841, taking Mrs. Chambers with him; that he lived in Navarro County, Texas, from 1843 to 1872, about two miles from a little town called Mt. Pisgah, containing 15 or 20 houses, 13 miles from Corsicana, the principal town of the county, and about 110 miles from Bryant, Brazos County, where the com- plainants. Perry and Henderson, who are attorneys at law, reside; that he never saw Benedict, after leaving Chicago, until 1848; that, in November of that year, Benedict came to his house, in Navarro County, " flat broke and afoot," saying that he came through Galveston, and had been in New Orleans and New York, and divers places; that he then sold to Chambers all his interest in this land, and other lands in Illinois, for $200, of which $75 was paid in cash, and for the balance he took a saddle horse; that Benedict then made a deed to Chambers of the land ; that neither had any papers showing the description, but both remem- bered the description ; that the deed was acknowledged before a justice of the peace, who is dead, and attested by two witnesses, who are both dead ; that Benedict then rode away, and Cham- bers has never seen nor heard of him since, or of any of his relatives, if he had any ; that Chambers never recorded the deed, but kept it for 14 years on his place in Texas ; that in 1862 he PARTITION. 179 left home, and deposited his papers in a trunk, in the care of a daughter then 25 years old ; that the deed was lost during his absence, and he has never been able to find it. The question as to the execution of the deed from Benedict to Chambers was passed upon by this court in the decision made in 1884. Perry v. Burton, 111 111. 138. Counsel for defendants refer to many circumstances brought to light by the evidence taken since the first and second hearings of the cause, which are alleged to demonstrate the falsity of the testimony given by Chambers. We do not deem it necessary, however, to enter upon a discussion of this subject, as we have reached the con- clusion, for the reasons hereafter stated, that the defendants must be regarded as bona fide purchasers of the one-fourth inter- est formerly held by Benedict, without notice of the deed said to have been made by him to Chambers, and consequently are entitled to protection, as against the latter deed. Some time in 1871 or 1872, Chamljers conveyed, or attempted to convey, all his interest in said tract of 80 acres, described as the E. \ N. E. \ section 20, etc., and in other lands in Illinois, to the com- plainants, and received therefor the sum of only $100. About the same time the complainants agreed with a real estate agent in Chicago to convey to him one-half of such interest in the land as they should finally recover, upon condition that he should take possession of the property, employ attorneys, perfect the title, and pay all costs, expenses, and attorneys' fees. We agree with counsel for the defendants that the agreement in question was champertous and void, and could not be enforced, as between the parties to it. Thompson v. Rey- nolds, 73 111. 11 ; Coleman v. Billings, 89 111. 183. But we do not regard such agreement as material in the consideration of this case, as the present suit is not between the complainants and the agent so employed by them. Torrence v. Shedd, 112 111. 466; 3 Amer. & Eng. Enc. Law, p. 86. It is not denied by the complainants that, in the fall of 1844, Isaac Cook was the owner of the other undivided one-half of the 80 acres which had not been conveyed in 1836 to Chambers and Benedict. The undivided half so conveyed to Chambers and Benedict was sold for taxes to Cook on November 28, 1842, and the sheriff issued a tax deed therefor to him on December 9, 1844. It is claimed by the defendants that Cook, holding under said tax deed, and under the deed to him of the other half, as color of title, paid all the taxes legally assessed upon the whole tract of 80 acres from 1844 to 1854, inclusive, while the land was vacant and un- occupied. We have heretofore passed upon the question of the payment of taxes by Cook under said tax deed, and have held 180 JOINT ESTATES. that the payment of taxes by him during the period aforesaid ■was not established by proof. Perry v. Burton, 111 111. 138. Counsel claim that there is now new evidence in the record which shows that Cook did pay the taxes on the undivided half con- veyed to him by the tax deed for a period of seven successive years between 1844 and 1854. We find no evidence what- soever in the record which shows that the 80 acres were vacant and unoccupied for seven successive years during the period from 1844 to 1854. Cook says nothing upon this subject, and the other witnesses, to whose testimony we have been referred, speak of the land as it was after 1854. In the absence of proof that the land was vacant and unoccupied, or that Cook was in possession of it, during said period of seven years, it is immaterial, so far as the bar of the statute of limita- tions is concerned, whether the taxes were paid or not; and any discussion of the question whether the defense based upon the payment of taxes under the tax deed to Cook has or has not become res adjudicta under the former decisions of this court would be unnecessary and fruitless. In 1854 Cook sold the 80 acres to John W. Finnell and Richard C. Wintersmith for $4,000, and afterwards, by warranty deed dated July 9, 1857, conveyed to them the 80 acres so sold. On January 9, 1856, each undivided -^ of said 80 acres, being the E. ■2^ N. E. \ section 20, etc., was separately sold for the taxes of 1855 to Frederick R. Wilson, and in pursuance of such sale the sheriff afterwards executed a tax deed, dated August 23, 1859, to Wilson, conveying to him the whole of the 80 acres. After- wards, by deed dated April 26, 1865, Wilson conveyed the S. -^ of the E. ^ N. E. -J- section 20, etc., being the 40 acres in controversy in this suit, to Finnell, and by deed of the same date conveyed the N. ^ of said E. ^, etc., to Winter- smith. By way of further effecting a partition of the 80 acres between them, Wintersmith or his grantees, by deed dated April 24, 1869, conveyed to Finnell said S. 40 acres, and by deed of the same date, Finnell conveyed said N. 40 acres to Wintersmith or his grantees. On August 28, 1869, Isaac Cook and John W. Finnell and Henry A. Montgomery and Abner Taylor, the two latter being grantees through mesne conveyances from said Wintersmith, filed a bill in the superior court of Chi- cago against the unknown heirs and devisees of Asa W, Cham- bers, deceased, and the unknown heirs and devisees of Sheldon Benedict, deceased, as defendants. This bill set up that Cook conveyed an undivided ^ of E. -1^ N. E. \ of said section 20 to Chambers and Benedict, as above stated; that by deed dated November 10, 1845, Norman B. Judd had deeded the other undi- PARTITION. 181 Tided i of said 80 acres to said Cook; that in November, 1845, Chambers and Benedict each owed more than $1,000 to said Cook and in consideration of such indebtedness executed an agreement in writing for the conveyance to him of their undi- Tided ^ of said 80 acres ; that the consideration therefor was the payment of said sums due from them, respectively ; that said •contract had been lost or mislaid, and had never been assigned by Cook ; that neither Chambers nor Benedict, nor either of them, had ever conveyed any part of said land to said Cook, or to any other person. The bill recites the sale for taxes in 1842 ; the tax deed to Cook in 1844; the exercise of control over the 80 acres by Cook from 1843 to 1857 ; the payment of taxes by him from 1842 to 1854 ; the sale for taxes in 1856 ; the tax deed to Wilson in 1859 ; the deed from Cook to Finnell and Winter- «mith in 1857 ; the deeds in 1865 from Wilson to Finnell of the S. 40 acres, and to Wintersmith of the N. 40 acres; the parti- tion deeds in 1869 from the grantees of Wintersmith to Finnell of the S. 40 acres, and from the latter to the former of the N. 40 acres. The bill alleges that Chambers and Benedict died in- testate and unmarried, and without children, and had been dead many years, and prays for a decree compelling the defendants to convey the S. ^ of said E. ^ to Finnell, and the N. ^ thereof to Montgomery and Taylor, and in default thereof that a master make such conveyance, and for summons. Appended to the bill was an affidavit that the names of the heirs and devisees of Asa W. Chambers, deceased, and of the heirs and devisees of Sheldon Benedict, deceased, were unknown. Summons dated August 28, 1869, was issued to Cook County against the un- known heirs and devisees or Asa W. Chambers, deceased, and the unknown heirs and devisees of Sheldon Benedict, deceased, returnable on the first Monday of October, 1869, and was re- turned, " Not found." Proof of publication of notice to said defendants was filed November 29, 1869, the publishers certifi- cate showing publication for four successive weeks, — four times in a certain newspaper, — first on August 28, and the last on September 18, 1869, On November 29, 1869, the court entered an order finding that it appeared from proof filed that publica- tion had been made in the Chicago Evening Post, a newspaper published in Chicago, containing notice of the pendency of said suit, etc., "the first of which publications was more than sixty days before the commencement of this term of court," etc., and ordering that default be taken against the defendants, and that the allegations of the bill be taken as confessed by them, and that the cause be referred to Ira Scott, master in chancery, to take proofs and report. On Monday, May 21, 1870, the master 182 JOINT ESTATES. made his report, returning therewith the deeds named in th& bill, or certified copies thereof, and also the deposition of Cook, wherein he testified that Chambers and Benedict were dead, and had been dead for 15 or 20 years; that neither of them was ever married; that he had been unable to find any of their relatives living; that said Cook had reacquired the title to said 80 acres from said Chambers and Benedict by contract or deed which he had been unable to find, and that no one ever claimed said land since its purchase by Cook from Judd and Chambers and Bene- dict, except Cook's grantees, and those claiming under them. On May 21, 1870, the court rendered a decree wherein, after reciting that the cause came on to be heard upon the bill, exhibits, and testimony, and that the defendants, the unknown heirs and devisees of Asa W. Chambers, deceased, and the un- known heirs and devisees of Sheldon Benedict, deceased, "al- though duly notified and warned," failed to appear and plead, it was ordered that the bill be taken for confessed ; and after find- ing that the material averments thereof were fully proven it was further decreed that the complainants therein be quieted in their title to and possession of said 80 acres, and that the defendants, " and all others," be forever enjoined from setting up any claim or title to said premises, or any part thereof, adverse to the claim and title of the respective complainants therein, and that the defendants, within five days, execute a deed to complain- ants Montgomery and Taylor conveying to them said N. ^ and a deed to the complainant, Finnell, conveying to him said S. y> etc., and in default of their so doing, that said master make said conveyances for said defendants. In pursuance of said decree, Ira Scott, master of said court, executed a deed dated June 14, 1870, and recorded June 23, 1870, conveying the S. ^ of the E. -J of the N. E. -J of said sec- tion 20, etc., to said John W. Finnell, and also, by deed of same date, and recorded on June 23, 1870, conveyed the N. -^-of saidE. ^, etc., to said Montgomery and Taylor. On February 23, 1871, Finnell sold said S. 40 acres to George G. Street for $12,000, and conveyed the same to him by warranty deed of that date, which was recorded before October 9, 1871. Street paid $3,000 in cash upon said purchase, and to secure the remaining $9,000 of the purchase money executed to Samuel M. Moore, as trustee, four trust deeds, dated February 21, 1871, and recorded March. 23, 1871, — on one of the N. E. 10 acres of said S. 40 acres, to secure a note for $2,250, payable in one year; one on the N. W. 10 acres thereof , to secure a note for $1,250 payable in two years; one on the S. E. 10 acres, to secure a note for $2,250, payable in three years; and one on the S. W. 10 acres, to se«ure three notes. PARTITION. 183 each for $750, payable, respectively, in one, two, and three years, — all said notes signed by said Street, and payable to the order of said Finnell. On March 1, 1871, Street sold said 40 acres to William Hansbrough for $18,000, and conveyed the same to him by a warranty deed dated March 1, 1871, and recorded March 31, 1871, subject to said incumbrances of $9,000, which said Hansbrough assumed and agreed to pay. Hans- brough bought the property for himself and George W. Burton, and by a warranty deed dated January 30, 1872, and recorded January 8, 1873, conveyed the same, for an express considera- tion of $18,000, to said Burton, who also assumed the payment of said incumbrances. On October 3, 1871, before the maturity of said notes, Charles G. Wallace bought all of said notes and trust deeds from said Finnell, and paid therefor $8,600 in money. Burton paid the two notes payable in one year, — one for $2,250, and one for $750, — and the said N. E. 10 acres have been released from the lien of the trust deed thereon. In 1877, Bur- ton executed upon the 40 acres a mortgage, which, in bankruptcy, was assigned in 1878 to the Louisville Banking Company, one of the appellants herein. In 1878, Burton became bankrupt, and an assignee of his estate was appointed. During this litigation the property had been sold for taxes, and John J. Mitchell, also one of the appellants, holds tax deeds upon the property. For the present we postpone the consideration of all questions as to the bankruptcy of Burton, and as to the rights of the Louisville Banking Company, and of Mitchell. Wallace, one of the defendants below, and one of the appellants here, is the owner of the unpaid notes secured by three of said trust deeds, together with the interest thereon. He claims that he bought the same in good faith, relying upon the validity of said decree of May 21, 1870, and of the master's deed made in pur- suance thereof. Burton and Hansbrough, defendants below and appellants here, claim that they and their grantor. Street, bought the 40 acres in good faith, relying upon said decree, and that they are bona fide purchasers for value, without notice of the claim of complainants, or of their grantor, Chambers. We are thus brought to the consideration of the question whether parties purchasing in good faith, and in reliance upon the validity of such a proceeding against unknown heirs and de- visees as is above set forth, are entitled to be protected in their purchases. In support of their contention that the superior court of Chicago acquired jurisdiction in the proceeding of 186Sf over the unknown heirs and devisees of Asa W. Chambers, de- ceased, counsel for appellants assert, in the first place, that the Chambers from whom the complainants derived their title was an 184 JOINT ESTATES. impostor, and is not sufficiently identified by the evidence as being the same Asa W. Chambers who lived in Chicago in 1836 to overcome the presumption of death arising from absence for several periods of seven years each, and to overcome the judicial finding of the fact of his death made in 1869 and 1870, as above set forth. Undoubtedly, there are some circumstances -which leave the mind in doubt upon this question of identity. John C. Haines and Fernando Jones swear that they knew Chambers and Benedict well when the latter were in Chicago in 1836 and 1838 ; that Chambers was a young man, not more than 25 years old, and was an unmarried man ; that he had no family, and slept in his store, etc. The grantor of complainants was in Chicago in 1872 or 1873, and gave his deposition in that city in September, 1874. He seems to have kept aloof from all of the old citizens, except one, who knew the Chambers of 1836 and 1838. His board, while he was here, was paid by the real estate agent already mentioned. He states that he was engaged at that time in peddling bluing for washing purposes. He says that while he lived in Chicago he had a wife and children, and that one of his daughters was married in Danville before he went to Texas. Three or four witnesses swear that the reputation of the C!hambers who lived in Texas in 1849 and 1862, for truth and veracity, was bad, and that they would not believe him under oath. Several testify that Chambers, of Texas, signed his name, "Asa Chambers," and was not known as Asa W. Chambers. There are many inconsistencies in the account which the grantor of complainants gives of himself, and of the transaction of which he speaks. If this matter depended upon his testimony alone, its inherent improbability, and its contradiction by Haines and Jones, would leave his identity with the original grantee of Cook un proven. But Haines and Jones did not see him when he was in Chicago in 1872 and 1874. On the other hand, Mark Beaubien, an old settler in Cook County, swears that he knew the Chambers who was here in 1836, and that the Chambers here in 1874 was the same man. The Chambers who testified in this case boarded with Beaubien in 1874, and the latter swears that he recognized him as the man who had for- merly boarded with him in 1836 or 1837. While there is some evidence tending to show that Beaubien was a very credulous man, there is none that successfully impeaches his truthfulness. We think, upon the whole, that his testimony must be held to determine the question of identity in favor of the position taken by the complainants upon this subject. But appellants contend, in the second place, that, even if the grantor of complainants be identified as the grantee of Cook, yet PARTITION. 185 the rights of Chambers were cut off, as against them, by the decree of 1870. Their position is that the superior court of Chicago was a court of general jurisdiction ; that it had juris- diction of the subject-matter; that absence from the domicile for a period of seven years, without being heard from, creates a presumption of death ; that Chambers had been absent, and not heard from, for 31 years, when the suit of 1869 was begun ; that the court made a decree, upon proofs taken, iSnding him to be dead ; that proper publication was made as to his heirs ; that complainants were bona fide purchasers for value without notice, and were not bound to look beyond the decree, when executed by a master's deed, inasmuch as the facts necessary to give juris- diction appeared upon the face of the proceedings; that the decree cannot be attacked collaterally, etc. There is force in these contentions, whereapplied to the unknown heirs and devisees of Sheldon Benedict, deceased, as will be seen hereafter, but they have no application to Chambers. According to the testi- mony of Beaubien, as it appears in this record, Chambers was alive when the suit was begun in 1869, and when the decree of 1870 was rendered, and when the present bill was filed, in 1873. He was not a party to the suit of 1869. The persons made parties as his unknown heirs and devisees were not then in exist- ence. There were no such persons. The court had no juris- diction over him, and the decree was absolutely void as to his one-fourth interest obtained from Cook in 1836. In authorizing the heirs of a deceased person, who has been interested in the subject-matter, to be made parties under the name of " unknown heirs," when their names are unknown, the statute presupposes that the death of such persons is an established fact. It was never designed to cut off the known rights of such a person while in life, even as against innocent purchasers for value. It has reference to deceased persons, and not to live persons. In Thomas v. People, 107 111. 517, where the proceeds of a sale in partition came to the hands of a master in chancery, and prior thereto administration had been granted upon the estate of one of the heirs upon the hypothesis that he was dead, because he had been absent, and not heard from, for more than seven years, the master paid to the administrator the portion of the proceeds belonging to such absent heir. Afterwards the person supposed to be dead turned out to be alive, and it was held that the grant of administration, and all acts done thereunder, were void; that the probate couit had no jurisdiction except over the estate of deceased persons ; that the money was improperly paid out; and that the interested party, who had returned alive, was entitled to recover back his money from the master. We think that the 186 JOINT ESTATES. doctrine of the Thomas case is applicable to the case at bar, so far as Chambers is concerned. We are therefore of the opinion that the decree of May 21, 1870, and the master's deed of June 14, 1870, did not have the effect of depriving Chambers of the one-fourth interest shown by the records to have been conveyed to him in 1836. The proceeding of 1869 must be regarded as a proceeding against the unknown heirs and devisees of Sheldon Benedict, alone, and the question arises whether it was valid as to them. There is no evidence in the record that Benedict was alive when that pi'oceeding was instituted, or when the decree therein was entered. He had been absent from Cook County, and had not been heard from in that county, for 31 years. If he was alive in 1848, he had not been heard from in 1869 for 21 years. Acting upon the presumption of his death, and upon the evidence of Cook that he was dead, the decree of 1870 found the fact of his death to be established. The complainants have introduced no proof to contradict the truth of such finding. In their original bill filed in this cause on July 18, 1873, they alleged that Benedict was dead, and after filing the affidavit required by the statute made his unknown heirs and devisees parties defendant. We see no reason why the court did not obtain jurisdiction over the unknown heirs and devisees of Sheldon Benedict, deceased, by the proceedings of 1869, as above set forth. Inasmuch as said heirs and devisees were notified by publication only, they had a right to come in at any time within three years after the entry of the decree, and open it, and answer the bill. It is true that such a decree does not become final until after the lapse of three years, and that parties purchasing during that time do so subject to the contin- gency that the decree may be set aside. Lyons v. Robbin, 46 111. 276; Bankw. Humphreys, 47 111. 227. But when the three years have passed, and no steps have been taken by the defend- ants to open it, it has the same effect as though there had been personal service. Caswell v. Caswell, 120 111. 377; 11 N. E. Rep. 342. Although, in the present case, Street and Hans- brough and Burton and Wallace acquired their interests within three years after the entry of the decree of May 21, 1870, yet none of the heirs or devisees of Benedict appeared between that date and May 21, 1873,for the purpose of openingthe decree, and answering the bill. The decree became final on May 21 , 1873, and the rights of said appellants became thereby fixed, and relieved of their conditional character. The bill of complainants in this case, not having been filed until July 18, 1873, was not filed until more than three years had passed, not only after the entry of PAETITION. 187 the decree, but after the execution and recording of the master's deed to Finnell. It makes no difference that said bill was filed within less than two months after May 21, 1873. The evidence tends to show that the efforts made by the agent of the complainants to find Chambers, and get a conveyance from him, were prompted by the beginning of the chancery suit in 1869, and by the publication of the notice to unknown heirs, etc. Neither Finnell, nor the above named appellants, who hold under him, had any notice whatever that Benedict had made a deed to Chambers until the filing of the original bill in this cause. The allegations of that bill made it known on July 18, 1873, for the first time, that such a deed, of which the records give no informa- tion, had been executed and lost. The first two deeds made by Chambers to the complainants gave no notice of the execution of a deed by Benedict to Chambers. They both bear date Novem- ber 20, 1871. One was recorded on January 30, 1872, and the other on February 16, 1872. By the former. Chambers con- veyed to Perry and Henderson " all of the equal and undivided one-half part," not of the E. ^ of the N. E. \, etc., but "of the N. E. one-fourth of section 20," etc., and omitted to state in what county and State said N. E. ^ was loca;ted. By the latter, Chambers conveyed to Perry and Hen- derson " an undivided one-half of all the pieces, parcels, or lots of land which I own, or have any title thereto," in Cook County, or in any part of Illinois, but failed therein to specific- ally describe any particular land. The third deed made by Chambers to Perry and Henderson, which recites that it is made to correct the mistake in the first deed of omitting the words "in Cook County, and State of Illinois," bears date July 5, 1873; and, although it is referred to in the original bill in con- nection with the other two deeds, it was not recorded until September 9, 1890. Which title to the undivided one-fourth interest conveyed by Cook to Benedict in 1836, is the better title, — that of appel- lants, derived from Finnell through his master's deed of June 14, 1870, and purchased in good faith for valuable considera- tion, without notice of any adverse interest, or that of com- plainants based upon the lost deed of Benedict to Chambers, brought to light for the first time on July 18, 1873? The stat- ute provides that "all deeds, mortgages, and other instruments of writing which are (required) authorized to be recorded shall take effect and be in force from and after filing the same for record, and not before, as to all creditors and subsequent pur- chasers without notice ; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers 188 JOINT ESTATES. without notice until the same shall be filed for record. ' ' If Bene- dict had been alive in June, 1873, and Finnell had then purchased his one-fourth interest from him for a valuable consideration, and in good faith, and without notice of any previous conveyance there- of , and had recorded his deed on June 23, 1873, Finnell would certainly have held the interest as against the unrecorded and lost deed previously made by Benedict to Chambers in 1848, and not heard of by Finnell until July 18, 1873. Although the legal title passes by the first deed, which is not recorded, yet by force of the recording laws it is postponed in favor of a subsequent deed to a bona fide purchaser, which is recorded. We have held that this rule appUes as well to bona fine subsequent purchasers from heirs as to purchasers from the ancestor. In Kennedy v. Northup, 15 111. 148, we said: " During the lifetime of the grantor in an unrecorded deed the apparent title is in him ; and he who purchases in good faith that apparent title, it is conceded on all hands, is protected by the statute. After the death of such original grantor the apparent legal title is in the heir, and the policy of the law, which is to make potent all legal titles to land, so far as practicable, that strangers may safely purchase, equally requires that the bona fide purchaser from the heir should be protected." If, therefore, Finnell had purchased said inter- est in good faith from the heirs of Benedict in June, 1873, and had recorded his deed in June, 1873, he would have been protected against the unrecorded deed made in 1848. But, when such heirs are unknown, why should not a subsequent purchaser who acquires their interest, in good faith and without notice, through a statutory proceeding against unknown heirs, be equally protected against the unrecorded deed? A deed from the heirs them- selves no more effectually disposes of their interests than a deed executed for them by a master in chancery, under the orders of a court which has acquired jurisdiction over them. It has been held that the subsequent purchasers who are pro- tected against unrecorded conveyances include purchasers at judicial sales as well as other sales. Webber v. Clark, 136 111. 256; 26 N. E. Kep. 360; and 32 N. E. Kep. 748. In principle and reason, these appellants, as purchasers from the grantee in the master's deed, executed under a judicial proceeding, occupy a position somewhat similar to that of the purchaser of a judicial sale. Section 7 of the chancery act is as follows: "In all suits in chancery, and suits to obtain title to lands, in any of the courts of this State, if there be per- sons interested in the same whose names are unknown, it shall be lawful to make such persons parties to such suits or PAETITION. 18& proceedings by the name and description of unknown owners, or unknown heirs or devisees, of any deceased person who may have been interested in the subjec1>matter of the suit previous to his or her death. But in all such cases an affidavit shall be filed by the party desiring to make any unknown person a party, stating that the names of such persons are unknown ; the pro- cess shall be issued against all parties of the name and descrip- tion given as aforesaid; and notice given by publication, as re- quired by this act, shall be sufficient to authorize the court to hear and determine the suit aa though all parties had been sued by their proper names." Starr &C. Ann. St., 11. 395. Section 43 of the same act is as follows: "All decrees, orders, judg- ments, and proceedings made or had with respect to unknown persons shall have the same effect, and be as binding and con- clusive upon them, as though such suit or proceeding had been instituted against them by their proper names." Id., p. 412. The statute requires that the deceased per.^on shall be one who was interested in the subject-matter of the suit previous to his death. Pile v. McBratney, 15 111. 314. The records showed, when the suit of 1869 was begun, that Benedict was the only person who had been interested in the one undivided fourth conveyed to him in 1836, except those holding tax titles. There was nothing to inform the complainants in the suit that Chambers had any interest in such undivided one-fourth, or that there were unknown persons interested therein, other than Bene- dict's heirs. In Pile v. McBratney, supra, the nature and effect of a proceeding precisely like the suit of 1869 were fully dis- cussed, and it was there said : " The court having acquired juris- diction of the case, and passed upon the rights of the parties, the decree was binding on the heirs of Mastin. The deed of the commissioners transferred all their interest in the land." When all persons known to have any interest in the land, or shown by the records to have any interest, are made parties, the proceeding would be useless, if, after it has become final, persons claiming to hold secret interests, unrecorded and unsuspected, even, can come in, and set the decree aside. Such a doctrine would open wide the door to fraud and perjury. Speculators would be tempted to swear to lost deeds, or other instruments, as having been executed to them by parties to such proceedings, for the express purpose of declaring the decree invalid for want of juris- diction over themselves. Thus the very object of the statutewould be defeated. While the decree of May 21, 1870, was invalid, so far as it operated to deprive Chambers of the one-fourth interest shown by the records to have been conveyed to him in 1836, we cannot regard it as invalid so far as it affected the secret 190 JOINT ESTATES. interest claimed to have been obtained by him through the lost deed of 1848. The apparent title to the latter interest stood in Benedict, or his heirs. " Where a deed is not recorded the title is apparently still in the grantor, and the law authorizes pur- chasers who are ignorant of the conveyance to deal with him as the real owner. In case of his death the heir becomes the ap- parent owner of the legal title, and it is equally as important, and equally as just, that the public may be allowed to deal with him as the real owner." Kennedy v. Northup, supra. When the facts authorize a statutory proceeding against the unknown heirs holding the apparent title, the prosecution of such a proceeding to the end, and the securement of a title thereunder, amount to a dealing with such heirs as the real own- ers, just as much as would be a purchase from heirs whose names are known. The bill of 1869 was to a large extent a bill for the specific performance of a contract to convey land. Cook and his grantees alleged therein that Chambers and Benedict executed a written agreement in 1843 to convey their interests in the 80 acres to Cook. The court found that allegation to be true, and ordered the defendants to make deeds to carry out the agreement, or, upon their default, that the master do so. Here was a judicial finding that Cook acquired an interest in Benedict's one-fourth before the deed of 1848 was made. The appellants, purchasing in good faith and without notice, had a right to rely upon that decree, and the deed thereunder, as passing Benedict's title. The court had jurisdiction of the parties, — the unknown heirs of Benedict, deceased, — and of the subject-matter, — the specific performance of a contract to convey land Counsel for appellees charge that the proceeding of 1869 was a fraud perpetrated upon the court by Cook, and that no such contract of sale as is therein set up ever existed. The proof does not sustain this charge. Chambers, it is true, swears that he owed Cook nothing when he left here, in 1838, and that he thinks Benedict owed him nothing. Cook, however, swears to the contrary in the suit of 1869, and the court found his evi- dence to be true; and, not only so, but he swears to the same thing in his testimony taken in this case in 1882. But, if it is true that Cook was guilty of the fraud charged against him, it was not such a fraud as goes to the ju- risdiction of the court rendering the decree of 1870, and there- fore is unavailable in a collateral attack upon the proceeding of 1869, as against innocent purchasers from the grantee in the master's deed. There are two kinds of fraud, as applied to this subject, — fraud in obtaining a decree by false evidence, and fraud which gives a court colorable jurisdiction over the defend- PARTITION. 1 gi- ant's person. In case of a fraud of the previous kind, a decree cannot be impeached in a separate and independent proceeding, though it is otherwise in the case of a fraud of the latter kind. Caswell V. Caswell, 120 111. 377 ; 11 N. E. Eep. 342. Counsel for appellees contended that the contract set up in the bill of 1869 was a joint contract for the conveyance of an undi- vided one-half of the 80 acres by Chambers and Benedict, to- gether, and that, where jurisdiction over Chambers failed, there was no jurisdiction to enforce the contract against Benedict alone for the conveyance of his one-fourth interest. We do not con- cur in this position. The deed made by Cook in 1836 conveyed to Benedict one-fourth, and to Chambers one-fourth, and each could perform the contract as to his own interest only, and not as to the interest of the other. Hence, we see no reason why the master's deed to Finnell did not pass Benedict's one-fourth, though it failed to pass the one-fourth belonging to Chambers. Freeman, in his work on Contenancy and Partition (section 209), says: "An agreement to convey, entered into by several cotenants, by which they stipulate that they will give a good and sufficient warranty deed, etc., does not require either to warrant the title of the others. It is complied with if each makes a separate deed of his moiety, con- taining the stipulated covenant, or if all join in a deed in which each grantor warrants his share, but not that of his cograntor." Coe V. Warahan, 8 Gray, 198. Viewing the contract as one be- tween Benedict, vendor, and Cook, vendee, for the sale of one- fourth of the land, and viewing the bill of 1869 as a bill brought by the vendee against the vendor for the specific performance of a contract made in 1843, we cannot see how the proceeding can be void, as to the vendor's interest, merely because a subsequent grantee of the vendor, to whom the latter conveyed in 1848, was not made a party, it being true that the original vendee filing the bill knew nothing about the conveyance to such second vendee. The bill alleged that Benedict had not conveyed any part of his interest in said land to any person, and the decree found that allegation to be true. The appellants, as bona fide purchasers from the master's grantee, had a right to rely upon the correctness of the finding. In case of a common bill for the specific performance of a contract of sale of real estate, the only proper parties, in general, are the parties to the contract itself. Story Eq. PL, § 226b ; Gibbs v. Blakewell, 37 111. 191. "In a case before Shadwell, Y. C, where the vendor sold the same property twice over, and the bill was brought by the first pur- chaser against the vendor and the second purchaser, it was dismissed, without costs, as against the latter, though specific 192 JOINT ESTATES. performance was decree as against the original contractor. This was affirmed by Lord Lyndhurst. * * * Cutts v. Thodey, 1 Colly. 223." Fry Spec. Perf. (3d Ed.), § 144. Counsel for appellees contend that all questions as to the chancery suit of 1869 are res adjudicata, under the former de- cisions of this court made in this cause. We do not think that such is the effect of said decisions. The case was first tried before the superior court of Cook County, in 1883. Upon the hearing then had, the superior court dismissed the bill of the complainants for want of equity. An appeal was taken to this^ court, and in an opinion filed on September 27, 1884, we reversed said decree of dismissal, and remanded the cause generally, without directions. Ill 111. 138. The case was again tried before the superior court in May, 1887, and a decree was entered by that court on August 2, 1887, again dismissing the bill of complainants for want of equity. A second appeal was taken tO' this court, and in an opinion filed November 15, 1888, we reversed the second decree of dismissal, and again remanded the cause, without directions. 126 111. 599; 18 N. E. Eep. 653. An ex- amination of the opinions of 1884 and 1888 will show that there was no discussion in regard to the proceeding of 1869, and not even a reference to it. The questions of law and the questions of fact there discussed were other than those which relate to the suit begun in 1869, and the decree therein entered, and the master's deed executed in pursuance thereof. When an opinion of this court directs the decree of the circuit court to be reversed, and the cause to be remanded without directions, what is said in such opinion in regard to the weight of evidence must be understood as applying only to the facts disclosed in the record then under consideration, and only the legal principles therein announced are binding upon the in- ferior court. Shinn v. Shinn, 15 111. App. 141. In such case it by no means follows that other facts may not be proved within the principles announced, or not inconsistent therewith, or that amendments may not be made which obviate objections to grant- ing the relief sought, or to the allowance of a defense "inter- posed. Cable V. Ellis, 120 111. 136; 11 N. E. Rep. 188; Washburn & M. Manuf'g Co. v. Chicago O. W. F. Co., 119 111. 30; 6 N. E. Rep. 191; Green v. City of Springfield, 130 111. 515; 22 N. E. Rep. 602. It is true that some reference was made to the suit of 1869 in the original pleadings. But since the cause was last remanded new pleadings have been filed, and the old pleadings have been amended by both sides, and new and more extended averments have been therein made, as to said suit. It appears clearly from the evidence of three wit- PAETITION. 193. nesses, Finnell, Browning, and Jones, and from former briefs of counsel, as testified to by the counsel for appellees, that no proper and legitimate evidence as to said suit was or could have been introduced upon the hearing of 1883 and 1887. Neither party then had an abstract of title, made in the ordinary course of business before the destruc- tion of th3 records in Cook County by the great fire of October, 1871, which showed fully all the proceedings in said suit. In 1887 the legislature passed an act amending what is known as the " Burnt Records Act." Said amendatory act went into force on July 1, 1887, and it was not until after it went into force that the defendants were able to introduce a letter-press copy, and extracts and minutes from the destroyed records in the possession of abstract makers, showing the return of the summons, and the publication of notice against the unknown owners, and other facts in said suit of 1869. Without the evidence made competent by the act of 1887, there was no way of proving that the court acquired jurisdiction in said suit over the unknown heirs of Benedict. In addition to this the com- plainants, Perry and Henderson, upon the reinstatement of the cause in the lower court after the reversal of 1888, not only filed in May, 1889, a supplemental bill referring to the previous plead- ings in the cause, and making new parties, but as late as Novem- ber 20, 1880, they filed an amended supplemental bill, attacking the validity of the proceeding of 1869 upon specific grounds, and setting up reasons why they entered no motion therein dur- ing the three years after the rendition of the decree of May, 1870, and also giving reasons why the defendant should not be allowed to rely upon the same for protection to themselves as bona fide purchasers. Answers were filed by the defendants setting up their reliance upon said suit. The amended supple- mental bill of November 20, 1890, and the answer thereto, made a direct issue upon the validity of the proceeding of 1869 ; and new evidence, never before brought forward, was introduced in support of this issue. Having filed said amended supplemental bill, the appellees are estopped from claiming that the issue thereby tendered connot now be considered. For the reasons hereinbefore set forth, we are of the opinion that the appellants, holding under Finnell, the grantee in said master's deed, have obtained good title to Benedict's one-fourth interest, as against Chambers, the grantee in the unrecorded deed of 1848. It fol- lows that the complainants were only entitled to be regarded as owners of an undivided one-fourth part of said south 40 acres, and therefore the decree of the court below, holding them to be the owners of an undivided one-half part thereof, is erroneous. 13 194 JOINT ESTATES. The other questions in the case have reference to the rights of the defendants, as among themselves, in the remaining three- fourths of the tract, after awarding one-fourth thereof to Perry and Henderson. As to the Wallace notes and trust deeds, Wallace has filed a crossbill asking for a foreclosure of the incumbrances held by him. The court below found that the legal title to the one-half not belonging to the complainants was vested in the Louisville Banking Company in trust for Burton, as hereinafter explained, and that as one-half of the $12,000 of purchase money agreed to be paid by Street to Finnell had been paid, as above stated, and the other half, with interest thereon, was represented by the notes specified in the cross bills, and owned by Wallace, and as Finnell conveyed the whole 40 acres to Street with full covenants of warranty, but in fact thereby conveyed the title to only one-half of the said prop- erty, therefore said Wallace could not enforce his trust deeds against the undivided half so decreed to be held by the company as trustee, etc., and said trust deeds were void, as against the rights of Burton and Hansbrough and said company, by rea- son of such failure of title to one-half of said land; and the court decreed, not only that the half held by it to be the prop- erty of complainants was free from the lien of said trust deeds, but that said Wallace had no claim whatever upon any portion of said tract of 40 acres. Burton and Hansbrough elected to assert their equities against Wallace. Although one of the errors assigned by Wallace is that the court below refused to enforce the lien of his trust deeds, yet his counsel do not present any argument to this court against the finding of the decree in this respect. Hence we conclude that they have abandoned their assignment of error. The deeds from Finnell to Street, and from Street to Hansbrough, and from Hansbrough to Burton, all contained full covenants of warranty. If the grantees had paid one-half of the purchase money, and received title to only one-half the land, they could certainly set up the failure of the warranty as to the other half of the land as a bar to the enforcement by Finnell of a suit to fore- close the notes and trust deeds given for the other half of the purchase money. As Wallace, purchaser of the notes from Fin- nell, is seeking to enforce them by foreclosure in a court of equity, said grantees could set up the same defense against him as against Finnell, the original payee. We are therefore inclined to think that the decree was correct in this particular, upon the hypothesis that the grantees of Finnell had lost title to one-half •of the land. As, however, we hold that the title to one-fourth PARTITION. 195 only of the tract has failed, Wallace is entitled to enforce his notes and trust deeds to the amount of $3,000, with interest, according to the terms of the notes. To the extent thus indicated the decree below is erroneous. As to the interest of the Louisville Banking Company. The controversy between the Louisville Banking Company and Bur- ton is whether Burton still owns the equity of redemption, sub- ject to the company's mortgage, or whether the company is the owner of the fee of the property, to the exclusion of any right "to redeem on the part of Burton. The determination of this question requires a statement of the facts out of which the con- troversy grows: On January 15, 1877, Burton and wife, of Jefferson County, Ky., executed to E. K. White, of the same -county, a mortgage upon said south 40 acres, and 80 acres of land in Morgan County, 111., to secure three notes for $6,000, $4,500, and $1,500 respectively, payable to the Louisville Bank- ing Company, " and all renewals or extensions of the same, in whole or in part, and save the said White, who is indorser and security thereon, from all loss, cost or damage;" the mortgage containing a provision that " if, during the time said White holds the title to the said premises, he should be compelled to pay taxes or assessments, or other sums, on account of being title holder thereof, the same, with interest and costs, shall constitute a lien upon the premises aforesaid, and must be paid by said Burton before he can require reconveyance of said premises." This mortgage was recorded in Cook County on January 18, 1877, and in Morgan County on February 19, 1877. Afterwards, by a written instrument of transfer, dated August 8, 1878, and signed by both Burton and White, the said Burton and White assigned to the Louisville Banking Company the full benefit of all their interest, right, and title in and to said mort- gage, and therein agreed that said banking company should be, and was thereby, substituted to all the rights then held by said White under said mortgage, "the same," as is stated in said written instrument, ' ' having been made for the security of cer- tain debts named therein, and are in a supplementary paper, of date 24th day of October, 1877, and to indemnify the said White as the surety of said Burton in said debts owing by said Burton to said banking company ; and we hereby agree to make all other and further transfers, assignments, and writings as may be nec- essary to carry into full effect the true intent and meaning thereof." The amount of the indebtedness named in said mort- gage was thereafter reduced, and new notes were executed to said banking company by Burton and White in place of said three notes, to wit, one for $4,500, dated January 11, 1878, 196 JOINT ESTATES. and one for $5,970 dated April 24, 1878, both payable four months after date to the order of said company; the latter reciting upon its face a pledge by Burton, as security there- for, of two notes against P. G. Kelsey for $1,219 and $1,236.74, and one note against Kelsey and Giles for $1,196.74, etc. It appears from a credit on the note for $4,500 that there was pledged, as collateral security therefor, a claim against one R. C. Kerr, upon which $1,171.50 was realized on May 18, 1881. Neither the mortgage aforesaid, nor the assignment thereof, were under seal, but Burton has never contested the same, nor denied his liabihty thereon. On August 26, 1878, Burton filed his petition in bankruptcy in the United States district court at Louisville, Ky., and was adjudged a bankrupt on August 28, 1878. On September 13, 1878, the creditors met, and selected W. W. Gardner as assignee, and on the same day the register in bankruptcy made an assignment to said assignee of all the prop- erty and effects of the bankrupt. On April 24, 1879, Burton was discharged from bankruptcy upon his own application, and upon his filing the assent in writing of one-fourth in number, and one-third in value, of his creditors, to whom he was liable as principal debtor, and who had filed their claims. On June 26, 1880, Gardner was discharged as assignee of the bankrupt estate. His final accounts were filed on June 26, 1880, and found to be correct, and in his sworn report filed with the register on that day he says: "The bankrupt sets forth in his schedule filed in this court that he was the owner of a large amount of real estate lying in various States, all of which appears to be incumbered largely in excess of its value, and is beyond the control of this assignee. * * • This assignee is of the opinion that in no event can there be anything realized from the estate for the unsecured creditors. Hence he asks that his accounts be audited, and that he be dis- charged from all further liability on account of said trust." Gardner died in November, 1882, — more than two years after his discharge as assignee. But it appears that an attorney in Louisville went before said district court on December 15, 1882, and upon his motion, and announcement of the death of Gard- ner, an order was entered " that Harry Stucky be, and he is hereby, appointed assignee in bankruptcy of the estate of" George W. Burton. The records and files of the said district court show nothing further as to said Stucky except the motion and order above named. No order was ever entered, directing said Stucky to make sale of any of the property of the bank- rupt, or confirming any such sale after it was made. By deed dated January 14, 1884, and recorded January 21, 1884, Stucky, PARTITION. 197 ^s assignee of Burton, and Burton and wife, united in a deed conveying said 40 acres in Cook County, and said 80 acres in Morgan County, to the Louisville Banking Company, reciting therein the bankruptcy of Burton, the appointment of Gardner, and assignment to him by the register, and his death, and the appointment of Stucky, and reciting, further, that all the right, title, and interest of Gardner, as assignee, became vested in Stucky, as assignee ; that Stucky had advertised notice of sale for three weeks in a Louisville paper, and on January 14, 1884, had offered said premises for sale at public auction at the court- house door in Louisville ; and that said company had purchased the same for $25. Afterwards, by another deed, executed on November 5, 1889, but dated back as of the 1st day of August, 1878, Burton and wife quitclaimed, for an express consideration of $5, all their interest in said forty acres to said banking com- pany. It will be observed that the transactions referred to under this branch of the case all occurred during the pendency of this suit for partition, begun by the appellees Perry and Hen- derson. Burton had entered his appearance in the case as early as August, 1878. He filed an answer on January 26, 1881. The Louisville Banking Company was made a defendant on April 19, 1880, filed its answer on April 24, 1880, and a cross bill on July 3, 1882. Gardner was made defendant on February 11, 1881; and Stucky, on December 21, 1882. In all the pleadings of the l)anking company, filed in the case prior to July, 1890, it claimed to be mortgagee only, and sought to enforce its mortgage against such interest in the property as might be set off in the partition to Burton or his assignee. But in answers filed in July and October, 1890, and in an amended and supplemental cross bill filed on October 14, 1890, the banking company claimed that it had become the absolute owner of the property through the deeds executed to it by Burton and Stucky, and that whatever interest in the property would have been set off to Burton or his assignee before the execution of said deeds should now be set off to it, as owner both of the mortgagee's title, and of the mort- gagor's equity of redemption. The court below held, and we think correctly, that Burton did not part with his right to redeem upon the payment of what is justly due to the bank. Leaving out of view for the moment the fact that the deed of January 14, 1884, was signed by Burton, and considering it as a deed executed by Stucky alone as assignee, was it a valid deed? In other words, did Stucky have any interest, as assignee of Burton, on January 14, 1884, which passed from him to the banking company by his deed of that date ? Burton had been ■discharged from bankruptcy more than four years before that deed 198 JOINT ESTATES. ■was executed, and more than three years before the entry of the order appointing Stucky assignee. Gardner had settled his accounts as assignee, and been discharged from his trust, more than three years before Stucky made his deed, and more than two years before Stucky's appointment. It must be conceded that the title to the property of the bankrupt passes to the assignee by the execution of the assignment of the register con- veying the estate of the bankrupt. Such assignment relates back to the commencement of the bankruptcy proceeding, and by operation of law vests the title to all the bankrupt's property in the assignee. Bump Bankr. (10th ed.) pp.137, 138,485. Here, on September 13, 1878, and by relation on August 26, 1878, the title of Burton to the 40 acres was in Gardner, as assignee. But where was the title after the discharge of Gard- ner on June 26, 1880? It is well settled that an assignee is not bound to take possession of, or claim, all the property named in the banki-upt's schedule. He may reject such of the assets as may be a burden, rather than a benefit, to the estate. He may decline to receive property which is so heavily incumbered as to make it injudicious to receive it. In England, where lease- hold estates pass to the assignee in bankruptcy, he is not bound to take the lease, and charge the estate with the payment of the rent, if the rent is greater than the value of the lease, but he may abandon it. In such cases, if the assignee declines to receive such property, or elects within a reasonable time not ta take it, it remains the property of the bankrupt. Smith v. Gordon, 6 Law Eep. 313; Amory v. Lawrence, 3 Cliff. 523; Glenny v. Langdon, 98 IJ. S. 20; Nash v. Simpson, 78 Me. 142; 3 Atl. Eep. 53; Brookfield v. Stephens, 40 Ark. 336. The assignee is a trustee appointed for the purpose of disposing of the assets of the bankrupt, and distributing them among the creditors. He takes the title in his official character as a trustee, and as an officer of the court. The bankrupt law makes no provision for the conveyance of the property undis- posed of by the assignee to the bankrupt. As the assignee takes no title as an individual, but only as an officer,, the title reverts to the bankrupt when the trust is ended, and the officer is discharged. When the creditors are set- tled with, and the bankrupt is discharged, and the estate is wound up, and the assignee is discharged, the bankrupt be- comes reinstated in his original title. It has been said that *' the title must be somewhere, and under these circumstances it is necessary to regard it as the only party interested," Boyd V. Olvey, 82 Ind. 294; King v. Remington, 36 Minn. 15; 29 N. W. Eep. 352 ; Steevens v. Earles, 25 Mich. 40; Jones v. Pyron,. PARTITION. 199 57 Tex. 43; Reynolds v. Bank, 112 U. S. 405; 5 Sup. Ct. Rep. 213; Bump Bankr. (10th Ed.), pp. 607, 669, In the case at bar, while Gardner was assignee, the 40 acres were incumbered by the Wallace trust deeds, by the mortgage of the Louisville Banking Company, and by a tax deed issued in 1873. Although the land has greatly increased in value since 1880, yet, when Gardner made his final report, the statement therein made, that the land appeared to be incumbered largely in excess of its value, was literally true. When he said that it was beyond his control, he said in effect, that he had never taken control or possession of it, but had declined to receive it as an asset. Although he was made a party to the present suit, yet it was not until he had been discharged as assignee, and therefore not until all his title, which was official, and not individual, had ceased to exist. By his discharge in June, 1880, the title thereafter reverted to Burton, and became reinvested in him. It necessarily follows from the foregoing consid- erations that the order made iu December, 1882, appoint- ing Stucky assignee, and the deed of January, 1884, viewed as a conveyance by Stucky alone, were void, and of no effect. Stucky cannot be regarded as a successor to Gardner in the office of assignee. Such a successor would only be appointed ia case of the death, removal, or resignation of the former assignee before the winding up of the bankrupt estate. But where the trust is closed, and the acting assignee has done his duty and has been discharged, a new assignee certainly cannot be appointed without the institution of a new proceeding in bankruptcy in accordance with the provisions of the act. But no such new pro- ceeding for the appointment of Stucky was instituted. We are therefore of the opinion that Stucky conveyed no title to the banking company by the deed of January, 1884. The weight of authority is in favor of the position that where the estate is set- tled, and the assignee discharged, the legal title revei-ts to the bankrupt without a reassignment, so that he or his heirs may bring ejectment. But if this were not so, the equitable title would clearly be in the bankrupt, and whatever title could b& regarded as remaining in the assignee, or in any person subse- quently appointed by the court to act as assignee, would be a naked legal title held in trust for the bankrupt. King v. Rem- ington, supra; Reynolds v. Bank, supra. Hence, if by any process of reasoning, it could be held that Stucky took any title at all, it could have been only a naked legal title, vested in hinx as a trustee for Burton, the holder of the equitable title. Con- sequently, when Burton united with Stucky in the deed of 1884, his joint execution with Stucky operated as a direction to the 200 JOINT ESTATES. latter to convey sueh legal title for the same purpose for which Burton was conveying the equitable title. This leads to an inquiry as to the real object of the execution by Burton to the Louisville Banking Company of the deeds made in January, 1884, and November, 1889. In order to determine whether a conveyance made by the mortgagor to the mortgagee operates as an extinguishment of the right of redemption, it must be made to appear that the parties intended such conveyance to be a payment of the debt. The intention to pay the debt by a deed of the property will not be inferred where the creditor retains the evidences of the indebtedness, and the securities pledged for its payment. Sutphen v. Cushman, 35 111. 186; Knowles v. Knowles, 86 111. 1 ; Dunphy v. Riddle, Id. 22 ; Bearss V. Ford, 108 111. 16. The deed will not be regarded as a release of the equity of redemption unless it is made for a consideration which is adequate, and which would be deemed reasonable if the transaction were between other parties. If the value of the mortgaged premises greatly exceeds the debt secured by the mortgage, the fact of such excess will tend to show that a release was not intended. 1 Jones Mortg. (4th Ed.), §§ 267, 340. A subsequent recognition of the mortgagee of the continued existence of the relation of debtor and creditor between the mortgagor and himself will be a circumstance tending to show the absence of such an intention. Id., § 267. The relations between the parties, and other facts and circum- stances of a nature to control the deed, and to establish such an equity as would give a right of redemption, may be shown by parol evidence. Knowles v. Knowles, supra; Con- ant V, Riseborough (111. Sup.), 28 N. E. Rep. 789. Applying these principles to the facts of the present case, we think it quite apparent that the deeds made by Burton to the banking company were merely intended as additional security for the mortgage indebtedness, and not as releases of the equity of redemption. Neither the mortgage, nor the notes secured thereby, nor the notes pledged as collateral security, were surrendered to Burton, or canceled, but were retained in the possession of the banking company. No consideration whatever was received by Burton for making these conveyances to the company. When they were made, both Burton and the company were parties to the present litigation, and engaged in contesting the title with Perry and Henderson and others. Burton was a party to the litigation when he executed the mortgage in January, 1877, and assigned it to the company, in August, 1878. He and White and Harris, the latter being president of the company, all lived in Louisville, and were intimate friends. He had been himself a stockholder PARTITION. 201 and director in the banking company. In the assignment of the mortgage to the company he had agreed to make all such other and further transfers, assignments, and writings as might be necessary. The proof shows that Burton signed the deeds of 1884 and 1889 in Louisville at the request of Harris. Harris told him that the attorneys in Chicago had requested the execution of the deeds, and that they were needed in the suit in Chicago, and for the correction of irregu- larities in former instruments. As there was no seal on theorig- inal mortgage, such a defect might be cured by a deed in the nature of a mortgage, executed under seal to the mortgagee. When the deed of 1889 was executed, the value of the property had begun to increase so as greatly to exceed the debt upon it. We are satisfied from a careful examination of all the evidence that Burton merely signed these deeds for the purpose of aiding the banking company in the defense of the present suit. His compliance with the request of the president of the company to execute additional papers will be presumed to have been in pur- suance of his previous agreement upon the subject. After the execution of the deed of January, 1884, the banking company filed pleadings in this case, in which it recognized the relations of mortgagee and mortgagor as still existing between itself and Burton. In an answer filed by it on February 2, 1886, to Wal- lace's cross bill, the company sets up its claim as mortgagee, refers to the amount due upon its notes, speaks of its lien, and asks that a certain part of the property be allotted to Burton or his assignee in bankruptcy, subject to its lien. Also, in a cross bill filed by the company on May 6, 1890, after the execution of the deed of November, 1889, the company again refers to its lien. The recognition in these pleadings of the continued existence of the lien of the mortgage is wholly inconsistent with the claim that the company had ceased to be mortgagee, and had become the absolute owner, of the property. It is assigned as a cross error by Burton that the decree below is erroneous in requiring him to pay certain moneys advanced by the company after January 14, 1884, for expenses and coun- sel fees in setting aside tax deeds upon the premises in question. When the property was conveyed to the company, in January, 1884, it thereafter held the legal title in trust for Burton, sub- ject to his right to redeem it upon paying the mortgage debt and interest, and such legitimate disbursements by the company as were necessary to protect the title. One of the tax deeds was outstanding before the mortgage was made, and although the others were obtained thereafter it does not appear that the mort- gagee was in possession of the property. As a general rule the 202 JOINT ESTATES. mortgagee not in possession is under no obligation to pay th& taxes upon the mortgaged premises. 1 Jones Mortg. (4th Ed. ), § 713. The decree does not allow a counsel fee for the fore- closure of the mortgage. The cases which hold that a counsel fee cannot be recovered in a decree of foreclosure unless there i& a stipulation in the mortgage allowing it have no application here. Here the mortgagee, being clothed with the legal title by the mortgagor, succeeds in setting aside tax titles for the benefit of the mortgagor, as well as for the benefit of the mortgagee. When the legal title shall be restored to the mortgagor, upcm his payment of the mortgage debt, it will be restored free of tax incumbrances which have been removed by the mortgagee. It has been held that a court of equity will allow a mortgagee counsel fees incurred in defending his title, without any express contract. 2 Jones Mortg. (4th Ed.), § 1606. _ When the mortgagee pays taxes to preserve his security he is entitled to recover the amount so paid. Id., § 1135; Wright v. Langley, 36 111. 381. Upon a bill to redeem, a mortgagee is entitled to credit for reasonable counsel fees paid in collecting rents and profits. 2 Jones Mortg., § 1138. The point now under con- sideration is not alluded to by counsel for the company, and merely referred to, without discussion, by counsel for Burton. But we see nothing inequitable in allowing these advances, which are not unreasonable in amount. There is a controversy in the case between Hansbrough and the Louisville Banking Company. Hansbrough's claim is that he was the equitable owner of one-half of the 40 acres, by rea- son of his joint purchase thereof with Burton ; that Burton held the legal title to one-half in trust for Hansbrough ; that Har- ris, the president of the banking company, had notice of Hansbrough's interest when he took the assignment of the mortgage to the company, on Augusts, 1878; that by reason of such notice to its president the company cannot enforce its mortgage against the one-half interest owned by Hans- brough, but can only enforce it against the one-half interest owned by Burton. Hansbrough became a party to this pro- ceeding for the first time on July 19, 1890. On that day he filed an intervening petition, and asked to be allowed to come in as a defendant, and answer. The prayer of his petition was granted. He then answered the original bill, and also filed a bill of interpleader setting up his claims as above stated. The proof shows that a written contract was executed between Bur- ton and Hansbrough on March 2, 1871, in which it was agreed that "they are jointly and equally interested in the above- described 40 acres of land to the extent of one-half each, while PARTITION. 20S the title is in said Burton." This agreement was never recorded. Burton, however, admits the ownership of one-half of the land by Hansbrough, and, as against Burton, Hansbrough is entitled to be regarded as said owner. But we think that the court below decided correctly in holding that his claim cannot be sus- tained, as against the mortgage of the bank. When the banking company took an assignment of the mortgage it had no notice of any interest in Hansbrough. It is conceded that the records furnished no notice of such interest. It is contended, however, that the bank had actual notice. Burton says that in May, 1873, he went to China, and was gone several months ; that before leaving Kentucky, to take this trip, he left certain of his papers and business matters in the hands of Harris, as his friend ; that he then told Harris of the interest Hansbrough had in the 40 acres. Harris denies that Burton gave him any such information, but says that if Burton did tell him anything about it, it must have been in some casual conversation, and that he had forgot- ten all about it when he acted for the bank, more than five years afterwards, in the matter of the White mortgage. When he took the assignment of the mortgage, on August 8, 1878, Harris was acting as the agent of the banking company. If he was told in May, 1873, of Hansbrough's interest, he received such informa- tion while acting as the friend or agent of Burton. He did not get the notice, if he was notified at all, while he was acting for the bank, but while he was acting for an individual. The knowledge of the agent must be acquired during his agency, and in the course of the same transaction from which the principal's rights and liabilities arise, in order to affect the principal with notice, unless it is clear from the evidence that the information obtained by the agent in a former transaction is so precise and definite that it is or must be present to his mind and memory while engaged in the second transaction. Snyder v. Partridge (111. Sup.), 29 N. E. Eep. 851. It cannot be said that a remark made to Harris in a casual conversation in 1883 was present to his mind five years afterwards, when he was engaged in taking security for a debt due to the bank of which he was president. Moreover, there is no evidence that White, the original mort- gagee in the mortgage made by Burton, had any notice whatever of Hansbrough's interest in the mortgaged prem- ises. If White was a bona fide owner of the mortgage, the bank, as his assignee, would take good title, even if its president had notice. It is well settled that a pur- chaser with notice may get a good title from a bona fide pur- chaser without notice of prior equities. Peck v. Arehart, 95 111. 113. But, in addition to the foregoing considerations. 204 JOINT ESTATES. Hansbrough abandoned the land, neglected for years to assert any interest in it, and suffered Burton to be held out to third parties as owner. He conveyed the title to Burton in January, 1872. In May, 1873, he executed a lease of the land to a tenant of Burton, and himself signed the lease as agent of Burton, and suffered Burton to hold the possession for years thereafter. He delivered up the written contract of March 2, 1871, to Bur- ton, in whose possession it remained until the summer of 1890. Hansbrough went into bankruptcy in April, 1878, and did not schedule any interest in this land as a part of his assets. He admits in his testimony that he had forgotten all about his in- terest for 17 years, from 1873 to 1890, and only asserted it in the latter year because the contract of March 2, 1871, was then discovered among Burton's papers. During these years he had been a witness in this case, and knew of the mortgage of the banking company, and recognized its right to enforce a lien against the 40 acres, and aided its attorneys in asserting those rights. Under all these circumstances we think that Hansbrough is estopped from denying that the company is entitled to enforce its mortgage against his interest, as well as against that of Burton. As to the tax deeds. After this cause was reversed and remanded, in 1888, it was reinstated in the court below in March, 1889. Thereafter, by supplemental bill filed on May 23, 1889, and amendments thereto filed on November 25, 1890, the com- plainants made John McCaffrey and John J. Mitchell, holders of tax deeds, and James Price, claiming to be their tenant, par- ties defendant, and alleged the invalidity of such tax deeds, and asked that the same be set aside as clouds. On May 22, 1889, the Louisville Banking Company also filed an amended cross bill, which was still further amended on May 6, 1890, attacking the tax deeds, and praying for their cancellation. The same allegations as to the invalidity of the tax deeds are made in the bill of interpleader filed by Hansbrough on July 19, 1890, and in a cross bill filed by Burton on October 14, 1890. The tax deeds are three in number, — one dated July 31, 1876, executed to Asahel Gage, who afterwards conveyed to McCaffrey; one dated October 11, 1881, and one dated December 27, 1883, both issued to McCaffrey. On June 22, 1889, McCaffrey conveyed his interest to Mitchell, who now owns the three tax titles. The decree of the court below declared the deeds to be void, and set them aside. It seems to be taken for granted by counsel that the decree was correct so far as it held the deeds dated July 31, 1876, and December 27, 1883, to be void. As counsel for Mitchell do not attack the finding made by the chancellor in PARTITION. 205 reference to those deeds, we shall assume that no good reason exists for disturbing such finding. The only one of the tax deeds which counsel discuss in their briefs is the deed dated October 11, 1881. It was made in pursuance of a sale which took place on August 25. 1879, for the taxes of 1877 and 1878. The time of redemption expired on August 25, 1881. Section 216 of the revenue act provides that the purchaser at the tax sale, before he can be entitled to a deed of the land purchased by him, shall serve notice on every person in actual possession or occupancy of the land, also on the person in whose name the same was taxed or specially assessed, if, upon diligent inquiry, he or she can be found in the county, also upon the owners of or persons interested in the land, if they can, upon diligent inquiry, be found in the county, at least three months before the expiration of the time of redemption on such sale. The section, after specifying what the notice shall contain, then provides as follows : " If no person is in possession or occu- pancy of such land or lot, and the person in whose name the same was taxed or specially assessed, upon diligent inquiry, cannot be found in the county, or the owners of, or parties interested in, said land or lot, upon diligent inquiry, cannot be found in the county, then such person, or his assignee, shall publish such notice in some newspaper printed in such county, * * * which notice shall be inserted three times, the first time not more than five months, and the last not less than three months before the time of redemption shall expire."' The statute thus requires that the person in whose name the land is taxed shall be personally served with notice. If, upon diligent inquiry, he cannot be found in the county, then the notice must be inserted in a newspaper three times. It is only when he cannot be found upon diligent inquiry, that the three notices are to be inserted. The making of diligent inquiry, and the failure to find, as a result thereof, must precede the publica- tion. When the party in whose name the land is taxed cannot thus be found he is entitled to notice by three publications, — not by one publication, or by two publications. If the notice is first published once or twice, and then the diligent inquiry is made, and the failure to find results therefrom, the law is not complied with. The statute does not contemplate that the pur- chaser shall first publish his notices and then, afterwards, make diligent inquiry. Inquiry made before the insertion of the first notice might result in finding the person in whose name the land is taxed. He may leave the county between the first insertion and the second or third insertion. If he can be found at the time when the first notice is inserted, he is not notified in the 206 JOESTT ESTATES. ■way required by law, — that is, by personal service, — but in a way not required by law, — that is, by publication. The statute does not permit the holder of the tax certificate to postpone his diligent inquiry until after he has published his notice. The publication, in such case, has no legal foundation to rest upon, because it is not justified or authorized until there has first been gage for Future Advances. Lanahan ». Lawton, 60 N. J. Eq. 276; 23 A. 476. Pitney, V- C. This is a bill to foreclose. It is founded ou a mortgage executed by the defendant, Walter E. Lawton, to the complainants' intestate, John C. Grafflin, to secure $150,000, in three years from its date. It is dated on the 5th of July, 1884, and was recorded on the 18th of March, 1887, nearly three years later. The defendant Lawton does not appear, and a decree pro confesso went against him. The other defendants who have answered are judgment creditors of Lawton, under proceedings in attachment begun March 17, 1887, one day before the record of complainant's mortgage, and set up several defenses, which maybe classified as follows: First, that the mortgage was never delivered by Lawton to Grafflin ; second^ that neither $150,000 nor any other sum was advanced by Grafflin at the date of the mortgage to Lawton; third, that, if ever delivered, it was kept oflp the record until the date of its record for the purpose of enabling Lawton to obtain mercantile credit on the strength of the unincumbered ownership of the property which it covers, and that the indebtedness of the sev- eral defendants was incurred as a consequence, in the belief that Lawton was the owner of the premises without incumbrance \, fourth, that, if given to secure a running account for present and future advances, nothing is due on that account; fifth, that the suits which resulted in the several judgments held by the defendant were commenced by foreign attachment, which was levied on the 17th of March, 1887, one day before the complainants' mortgage was recorded, and thus the defendant lost his property ; sixth, that complainant's tes- tator must be held to have waived any rights he had as a mortgage creditor by himself is.=uing an attachment on the 19th of March, 1887, and attaching the same premises, and in coming in as a creditor under the attachment of March 17th, and obtaining judgment for the only debt which he has against Lawton. The facts are that Mr. Grafflin was a wealthy manufacturer, residing and engaged in business at Baltimore, and that Lawton was a dealer in fertilizers, living and doing business in New York. For some time prior to the date of the mortgage in question, Grafflin had been in the habit of making advances of money to Lawton, and also of loaning him commercial paper which he (Grafflin) had taken in the course of business, and MOHTGAGE DEBT MAY BE ANTECEDENT, ETC. 245 which he loaned to Lawton before its maturity, and which Law- ton procured to be discounted for his own use and benefit. On the 30th of June, 1884, six days before the date of the mort- gage, Mr. Lawton was indebted to Mr. GrafB.in in the sum of $56,689^82 for advances in cash and interest up to that date, and nearly $50,000 for commercial paper before that time loaned to Mr. Lawton. Lawton, in addition to his dealing in fertilizers, had purchased a large tract of land in Bergen County, which he had devoted, or was about to devote, to the purpose of making brick; and on the 11th of July, in the absence of Mr. Orafflin, he went before a commissioner of deeds for New Jersey, residing in New York, and executed the bond and mortgage in question. How it came into the possession of Mr. Grafflin does not appear ; but it does appear in the most satisfactory manner, that it did come into his possession shortly afterwards, without being recorded, and was by him placed among his valuable papers and preserved until the 17th of March, 1887, when, upon the receipt by him of a tel- egram from Lawton's confidential clerk and cashier that Lawton had absconded, he (Grafflin) took the bond and mortgage from the safe, proceeded directly to New York, and the next day (March 18th) caused the mortgage to be recorded in the Bergen county clerk's office. In the mean time, and on the 1st of January, 1885, the balance due from Lawton to Grafflin had increased to about $135,000, and remained, with some fluctua- tions, at about that amount, until the time the mortgage was recorded. On the 17th of March, 1887, the Commercial National Bank, one of the defendants, issued an attachment out of the circuit court of the county of Bergen against Lawton, and the sheriff attached the mortgaged premises. On the 18th of March, Grafflin, as above stated, recorded his mortgage, and on the 19tli he caused an attachment against Lawton to be issued out of the same court. Whether, under these two writs, any other prop- erty besides these mortgaged premises was attached, does not appear. The object of the independent attachment by Grafflin is manifested by what followed. On the 5th of April, 1887, he filed a bill in this court to set aside a conveyance which had been made by Lawton on the Ist of March, 1887, and recorded on the 5th of March, 1887, to the New York & New Jersey Brick Company, and a mortgage given by the brick company, of the same date and record, to the Metropol- itan Trust Company, to secure the sum of $950,000; and 5uch proceedings were had in that suit that on the 9th of June, 1890, this court decreed that the conveyance and mortgage just jnentioned were null and void, and should be set aside, and. 246 MORTGAGES. further, that the attachment issued at the suit of the Commer- cial National Bank was a valid lien and incumbrance upon the premises, and that when the premises were sold by the auditor iu attachment the sale should be subject to the mortgage made by Lawton to Grafflin. The judgment creditors, defendants in this suit, who defended, were not parties to that bill. Grafflin died in August, 1888, and letters of administration, with the will annexed, were issued to the complainants, and they were substi- tuted complainants in the suit of Grafllin against Lawton, just mentioned, before decree, and after decree in that suit filed thi& bill. In the attachment suit commenced by the Commercial National Bank, in which Grafflin appeared as a creditor, he obtained judgment for $135,407.63. Lawton has never been heard of since he absconded, which circumstance, together with the death of Grafflin, leaves the case bare of any evi- dence as to what the understanding was between the par- ties with regard to this mortgage, or why it was not recorded. Mr. Grafflin's confidential clerk — a Mr. Eogers — was sworn as a witness. He kept the account of the loans made by Grafflin to Lawton; he also had the custody, for part of the period between its date and record, of the mortgage and accompanying bond in question. He has no per- sonal knowledge of how these papers were passed from the hands of Lawton to Grafflin, nor upon what understanding. Mr. Grafflin's brother-in-law, — one Keener, — who was acting for him in some matters about that time, is also dead. Grafflin himself was at the time quite ill. This state of the evidence leaves the object of the mortgage altogether a matter of inference ; but I think that the established facts of the indebtedness from Lawton to Grafflin, at the date of the mortgage, and its continuance and increase, lead fairly and legitimately to the inference that the mortgage was given to secure that indebtedness, and such future indebtedness as might arise, and justify me in finding so as a matter of fact. The absence of Lawton and the death of Grafflin account for the absence of any evidence to show why the mortgage was not placed on record. The proof shows that Mr. Grafflin was quite ill about that time, and he must have relied upon Mr. Lawton to make him secure; and although Mr. Eogers is quite positive that Grafflin himself handed him the bond and mortgage for deposit among his valuable papers some time not very long after their date, it is not difficult to believe that Mr. Grafflin did not observe that the mortgage had not been recorded, but relied — with misplaced confidence, as the result has proven — upon his friend, Lawton, to do everything that was necessary to MORTGAGE DEBT MAY BE ANTECEDENT, ETC. 247 make him secure. Be that as it may, there is not the least evidence to show that the instrument was kept off the record, intentionally and knowingly, for the purpose of enabling Lawton to obtain commercial credit on the strength of being the owner of unincumbered property. To so presume from the bare fact of non-record would be to presume in favor of fraud, instead of against it. Besides, it is highly improbable that, in so large a transaction, Mr. Grafflin would have taken so great a risk. It is much easier to believe that the non-recording of the instrument escaped his attention. There is evidence that, as to one judg- ment creditor, defendant Lawton did . obtain credit on the strength of being the owner of the land in question, free of in- cumbrance; but there is not the least particle of evidence that Mr. Grafflin had any knowledge of any such representation or conduct on the part of Lawton, and I do not see how he can be held responsible for it. With regard to the attachment being issued and levied before the mortgage was recorded, that point is res adjudicata in this State. The case of Campion v, Kille, 14 N. J. Eq. 229; 15 N. J. Eq. 476, with the cases there cited, is conclusive in favor of complainants on that point. It follows that the complainants are entitled to the benefit of their mortgage, as a lien prior to any of the judgments under the attachment, unless the conduct of their testator in himself issuing an attachment, and putting his claim under the first attachment, and obtaining a judgment thereunder, can be held as a waiver of his lien under bis mortgage. It is well settled by a long series of decisions in New Jersey that the obligee of a bond secured by a mortgage does not waive his mortgage lien by suing at law upon his bond, and recovering judgment, and issuing execution, and levying upon the mortgaged premises. It is, however, inequitable for the mortgagee to proceed to a sale of the mortgaged premises ; and this court will restrain him in so doing at the instance of the owner of the equity. The cases in this State are collected and commented upon by Chancellor Eunyon in Lydecker v. Bogert, 38 N. J. Eq. 136. It follows plainly that, by merely issuing a general attachment against the defendant upon the debt secured by his mortgage, Mr. Grafflin did nothing to disturb his lien under the mortgage. While it does not appear that any other property besides the mortgaged premises were seized under that attachment, the contrary does not appear ; and it was perfectly proper for him to issue the attachment he did, and also to come in as a creditor under the previous attachment, with the view of getting the benefit of any other property which might be found and subjected to the lieu of the process. Besides, the position 248 MORTGAGES. of a plaintiff in attachment gave him a standing in this court as the complainant in a suit to set aside the previous convey- ance and mortgage, under the rule established in Hunt v. Field, 9 N. J. Eq. 36; Williams v. Michenor, 11 N. J. Eq. 520. It follows that nothing that the complainant has done can be construed as either a discharge or waiver of his lien under the mortgage. The apparent hardship of this result is much softened by the circumstance that the mortgagee pro- ceeded, unaided by the defendants, to bring suit and remove out of the way the fraudulent conveyance made by Lawton, which, unassailed, was a complete bar to any success on their part. Complainants are entitled to a decree. On the argument the point was made that the mortgage can only stand as security for the amount which was due the mort- gagee at the time it was made and delivered, and which, it is insisted, was only $56,689.82, and that against that sum should be credited all the payments which were made by Lawton on account after that date, which amount to upward of $30,000. I cannot adopt that view The mortgage was evidently given to secure the amount due at its date, and also future advances ; and it is perfectly well settled in New Jersey that a mortgage for future advances is good for all the money advanced under it up to such time as some third party shall have acquired an interest by mortgage, conveyance, or judgment in the mortgaged premises, and notice thereof be given to the holder of the mort- gage to secure advances. No defense of any such lien or interest in this case prior to the 17th of March, 1887, is made, and the complainants did not claim for any moneys advanced after that time. In fact, none were advanced. On examination of Mr. Rogers before a commissioner in Bal- timore, counsel for one of the defendants, in the course of cross-examination, interpolated into his questions what purported to be extracts from the testimony of Mr. Grafflin taken in some suit in Maryland in which he (Grafflin) was a defendant. Ob- jection was made to that mode of examination. The deposition itself, if any such there be, was possibly competent evidence, but it was not offered. Counsel for one of the defendants refer- red to these supposed extracts from the evidence of Mr. Grafflin as evidence in this cause, but they cannot be so construed. There is not the least particle of proof before the court that Mr. Grafflin ever swore to anything of the kind, and it would be highly improper to pay any attention to mere extracts from a deposition without having the whole before the court. One other matter remains. It appears that complainants hold, as collateral to Lawton's indebtedness to them, certain MORTGAGE FOR THE SUPPORT OF THE MORTGAGEE. 249 shares of stock in an incorporated company, and the defendants contend that they are not entitled to a decree in this court until they shall have exhausted their remedy by a sale of these shares of stock. The proof shows that the shares of stock are probably of very little value ; but, however small their value may be, the equity by the defendants was not seriously resisted by the com- plainants' counsel at the argument, and, as I recollect, he offered to have them so appropriated. It does not seem to me necessary that the proceedings in this cause should stand until those shares are sold. The result may be attained by placing them within the power of the court ; and upon depositing with the clerk of the court the certificate, with a transfer in blank executed by the complainants, a decree will be made. There will be a reference, if the defendants desire to dispute the amount complainants claim to be due ; but it hardly seems to be worth while, in face of the fact that the auditor in attachment passed upon the complainants' claim, and judgment has been rendered upon it in the attachment suit to which all the defend ants were parties. Mortgage for the Support of the Mortgagee. Cook V. Bartholomew, 60 Conn. 24; 22 A. 444. Carpenter, J. This is a suit for the foreclosure of a mort- gage, with the alleged mortgage annexed as an exhibit. The mortgage is in two parts, — an ordinary deed for the considera- tion of $900, duly executed to convey real estate, and a con- dition thereto attached, of the same date, and signed by the grantor, as follows : " The condition of the within deed is as fol- lows : The said Bostwick, for the consideration named in the within deed, covenants and agrees with said Charles Cook, as such conservator, that he will receive said Sarah A. Bostwick into his care and keeping during the term of her natural life; that he will provide for all her wants in a reasonable and proper way ; will provide her with all needed food, drink, and clothing; have a room and fire when needed ; lodging and every necessary com- fort, both in sickness and health ; and at her decease give her decent and proper burial, and erect tombstones at her grave, with a suitable inscription thereon, within one year after her decease, said tombstones to be of a value of not less than fourteen dollars. Now, therefore, if said Bostwick shall well and truly perform all and every of the above covenants and stipulations faithfully, then this deed to be void; otherwise to remain in full force and effect in law." The com- 250 MORTGAGES. plaint also alleges that the defendant Bostwick subsequently con- veyed his interest in the premises to the defendant Jones, and that Jones conveyed his interest to the other defendant, Barthol- omew. The defendants demurred, and the case is reserved. Whether the instrument sued on is or is not a mortgage is the principal question in the case. What is a mortgage? Amort- gage is a contract of sale executed, with power to redeem. * * * The condition of a mortgage may be the payment of a debt, the indemnity of a surety, or the doing or not doing of any other act. The most common method is to insert the condition in the deed, but it may as well be done by a separate instrument of defeasance executed at the same time. * * * ^ bond or note is usually taken for the debt, which is described in the deed with a condition that if the debt is paid by the time the deed shall be void. In such case the mortgage is called a collateral security for the debt. In like manner an engage- ment to indemnify, or any other agreement, may be de- scribed in the mortgage deed." 2 Swift Dig. 182, 183. "To constitute a mortgage, the conveyance must be made to secure the payment of a debt." Bacon v. Brown, 19 Conn. 29. " A conveyance of lands by a debtor to a creditor as a security for the payment of the debt." Jarvis v. Woodruff, 22 Conn. 548. What is a debt? "That which is due from one person to another, whether money, goods or services; that which one per- son is bound to pay to another or to perform for his benefit ; that of which payment is liable to be exacted ; due ; obligation ; liability." Webst. Diet. What is this case? Ammon Bost- wick received $900 from the plaintiff, in consideration of which he agreed to support Sarah A. Bostwick during life, and at her death to bury her, and to erect a tombstone to her memory. To secure the performance of this agreement, he executed this deed, with a condition that the deed should be void if the agreement should be performed. He assumed a duty which may be aptly described as a debt. He executed a deed of real estate as collat- eral security for the performance of that duty, — the payment of that debt. The obligation falls within an approved definition of " debt," and the conveyance is within the legal definition of a " mortgage." There is no force in the objection that this can- not be a mortgage because of the diflaculty in ascertaining the amount of the debt, as clearly appears by the definitions. Of course, there is less certainty and more inconvenience in reducing an obligation of this nature to a money valua- tion than there is in computing the amount due on an ordinary bond or note. Nevertheless it may be approxi- mately done, and that is sufficient for all the purposes of sub- moetgagor's possession at common law. 251 stantial justice. Courts never refuse to redress an injury on account of the difficulty in estimating the extent of the injury in dollars and cents. In this case the age, health, general condi- tion, and expectation of life of Sarah A. Bostwick must be known. Add to these the probable cost of supporting her for one year, and we have the dala for a reasonable estimate of the cost of supporting her through life. It is a problem of the same nature, containing the same elements and similar factors, with the problem which the parties solved 14 years ago. They then, as it seems, fixed the outside limit at $900. The same thing can be done now as well as then. Possibly $900 may be considered an equitable limit, beyond which the plaintiff may not claim in this case. As other circumstances may exist which will materially affect the general question, we will not consider the question further on this demurrer. Regarding the convey- ance as a mortgage, as we do, there is no foundation for the claim that an entry for a breach of the condition is essential. An entry is essential when the grantor would divest the grantee of his title for a breach of a condition. This is an action by the grantee, in whom the title is, not to enforce a forfeiture, but to foreclose an equity of redemption, unless the grantor, within a reasonable time allowed him therefor, pays the damage sus- tained by a breach of his agreement. The court of common pleas is advised to overrule the demurrer. The other judges concur. Mortgagor's Possession at Common Law — Right to Sell Timber. Stewart ». Scott, 54 Ark. 187; 15 S. W. 463. COCKEILL, C. J. It is conceded that the only questions aris- ing upon this appeal relate to Scott's set-off to Stewart's action against him. The set-off is based upon an agreement for the sale of timber to be delivered at the stump by Scott, the vendor, to Stewart. The purchase price was to be the cost of cutting, and an agreed sum per thousand feet. The contract was in writing. After its execution Stewart concluded that he could have the timber cut cheaper than Scott could, and expressed a determination to undertake it. Scott acquiesced. Stewart cut and appropriated about one-half of the quantity agreed upon, and refused to take the residue. The court, against Stewart's objection, received evidence of the number of feet of timber in the trees covered by the contract, and which were rejected by Stewart, and left growing upon the land, and charged the jury that they might return a verdict against him for a sum equal to 252 MORTGAGES. the contract price of the timber they contained. These rulings are assigned as error. Without laying stress upon the want of a certain description in the written contract of the lands upon which the trees stood, it is enough to say that it was an executory contract to sell tim- ber, which (in part) was never completed by delivery. After the vendee refused to proceed in execution of the contract, the vendor did not maije an offer of delivery in ac- cordance with the terms of the written contract, but retained the trees in their natural state. The measure of of his recovery, therefore, would not be the contract price of delivered timber, but the damages sustained by reason of the vendee's breach of contract. But these damages are unliqui- dated, and unliquidated damages, even when arising from breach of contract, are not the subject of set-off, though they may be recouped in a proper case. Gerson v. Slemmons, 30 Ark. 50; Bloom V. Lehman, 27 Ark. 489; Clause v. Printing Co., 118 111. 612; 9N. E. Eep. 201 ; Holland v. Eea, 48 Mich. 218; 12 N. W. Eep. 167; Carter v. Jaseph, 48 Mich. 615 ; 12 N. W. Eep. 876. The court erred in admitting the testimony and giving the instruction referred to. When the contract for the sale of the timber was entered into, Scott, the owner, was in possession of the land, but there was a subsisting mortgage upon it executed by him to secure a debt due to a non-resident firm. It is argued that the contract of sale is void, and that no recovery can be had for the timber actually delivered under it, because it was made in contravention of the statute enacted to punish persons who fell trees upon another's land without his consent. Two provisions of the law are appealed to to sustain the contention, viz.. Sections 1658, 1659, et seq. Mansf. Dig. But it is not apparent that the legislature intended that either provision should embrace a mortgagor in possession. One section is directed at " every person who shall commit any trespass * * * upon the lands of any other person" (section 1658, Supp.) ; and the other against those who, " without lawful authority, willfully and knowingly enter upon lands belonging to the State," or to any corporation or person, other than the party accused. Sections 1659, 1663, Id. The mortgagee is in common entitled to the possession of the mortgaged lands, but until he takes it legally the possession of the mortgagor is not illegal, and his entry is not in itself a trespass. He is not, therefore, within the letter of the statute. Moreover, the expressed intent of the leg- islature is to visit punishment only upon those who cut trees upon the lands of another. In popular acceptation, the moetgagor's possession at common law. 253^ mortgagor remains the owner of the land and the popular belief is not far from legal accuracy. It is common to say that the legal title vests in the mortgagee, but his interest is regarded as a title only for the purpose of enforcing his equities. It lacks many of the essentials of a title. He has no interest that can be sold on execution, and his widow does not take dower in his interest in the land, notwithstanding the statute makes every substantial interest in real estate subject to sale under execution, and the subject of dower. A power to sell is not necessarily a power to mortgage, nor a power to mortgage a power to sell ; and it is held that giving a mortgage upon land by one who has already conveyed his title by deed is not disposing of the land within the meaning of a statute which made it a felony to make a fraudulent second sale. People v. Cox, 45 Cal. 342. Pay- ment of the debt at its maturity destroys the estate without a reconveyance or release by the mortgagee. Schearff v. Dodge, 33 Ark. 340. Equity always regards the mortgagor as the owner of the land, and the mortgagee as holding a security only for his debt, and a court of law, in a controversy between the mortgagor and a stranger to the mort- gage, does not regard the mortgage as a conveyance. For example, in a suit by the mortgagor for possession, it is no answer for the stranger to say that the title is in another by virtue of the mortgage. " It is an affront to common sense," said Lord Mansfield in Eex v. St. Michaels, 2 Doug. 632, " to say the mortgagor is not the real owner." If, then, in popular and legal acceptation, the mortgagor is the owner of the land, there is no reason for attributing to the legislature the intent to punish him under the provision of the law referred to. There is a limit upon his right, as against the mortgagee, to cut trees growing upon the mortgaged premises, but the statute does not purport to punish waste as distinguished from trespass. A rational construction of the act does not require an expan- sion of its terms to meet that class of cases. It is a statutory crime also to sell mortgaged property with intent to defraud the mortgagee. Mausf. Dig., § 1693, as amended by Acts 1885, p. 120. As the mortgage lien continues to bind the trees grown upon the land after they are severed from the soil, a sale of them, made for the purpose of defrauding the mortgagee, would be in the face of the statute. A contract for that pur- pose would therefore be void, and the courts would refuse to enforce it. O'Bryan v. Fitzpatrick, 48 Ark. 487; 3 S. W. Eep. 527. But there was no evidence at the trial which conclusively stamps the transaction as a fraud upon the mortgagee. It was proved only that 1,560 acres of land had been mortgaged to 254 MORTGAGES. secure a debt of |2,500. The value of the land, without the timber, may have been so greatly in excess of the mortgage debt that no intent to defraud the mortgagee could be presumed. The court was not asked to direct the jury to consider the ques- tion of fraud, and there was no error in the refusal to charge as requested, on the theory that the contract contravened the other sections of the statute first cited above. But for the errors indicated it is ordered that the judgment be reversed, and the cause remanded for a new trial. Mortgagee's Right to the Possession. Townshend v. Thompson, 139 N. T. 152; 34 N. B. 891. Eabl, J. This is an action of ejectment to recover a lot of land situate at the southwest corner of Eighth avenue and 117th street. New York City. The plaintiff's title does not appear to be very meritorious, and the court ought not to be very astute to uphold it. Both parties trace their title back to Edward Price, who took a conveyance of the lot in 1827. The plaintiff claims title under him as follows: In 1835 he conveyed the lot to John Scudder, and took back a purchase money mortgage. In 1836 Scudder conveyed the lot to Ebenezer L. Williams, subject to the mortgage. February 4, 1853, Williams was adjudged a bankrupt, upon his own petition, under the bankrupt act of 1841, and William C. H. Waddeil, the official assignee in bankruptcy, became his assignee, and all his estate at once vested in him; and on the 27th day of May, 1843, Williams received bis discharge from his debts. On March 1, 1869, the assignee, by order of the court, sold and conveyed this lot, with five other adjoining lots, to George Law, for the consideration of $2,150; and on the 10th day of January, 1873, Law, for the consideration of $500, conveyed the same lots to the plaintiff. During all these years — more than twenty-six — before the sale to Law, there is no pretense that the assignee had any actual possession of the lots, or^ that he ever exercised any acts of con- trol or ownership over them, except as follows : February S, 1845, he filed a report in which he stated that these six lots, among other assets, were subject to two mortgages, and were of uncertain value, and ought to be disposed of at public sale without incurring further expense or delay. It does not appear that any formal order was then made for the sale of these lots. They were marked "Worthless" in an inventory of the assets made by the assignee. He being dead at the time of the trial of this action, his account book, found in the posses- MORTGAGEE 8 RIGHT TO THE POSSESSION. 255 sion of the plaintiff's attorney, was put in evidence, in which appeared an entry showing that he had sold the lots on the 23d day of March, 1846, for 13 cents. In February, 1867, the assignee presented a further report to the court, in which he stated that an application had been made to him to procure all the interest which the bankrupt had, and which became vested in him as assignee, in the six lots, and that Price had foreclosed his mortgage on the lots without serving any notice on the assignee, and had obtained possession of them, and that the application was to procure his interest in the lots for " a nominal consideration, and the costs of the assignee and his counsel therein, the title hereby sought being of no pecuniary value to his estate." Upon this report an order was made for the sale of the property at private sale. In January, 1869, the assignee made another report, in which he stated again that application had been made to him for the purchase of the lots for a nominal consideration, and the costs of the assignee and his counsel therein, the title sought being of no pecuniary value to the estate. Upon this report an order was made, authorizing the sale of the lots at public auction, and, as above stated, they were sold and conveyed to Law. It is clearly inferable that John Townshend, the plaintiff's husband, and her attorney in this action, instigated these proceedings of the assignee in the years 1867 and 1869, and that he was his friendly counsel therein. The fact that the lots were not sold for a nominal consideration must have been a disappointment to some one. It is not probable that the man who paid $2,150 for the lots was the person who was seeking to procure them for a nominal consideration. But Law, as an obstacle, was soon dis- posed of. On the 5th day of February, 1870, John Townshend, without an atom of record title, and, so far as this record dis- closes, without any title whatever, conveyed the lots to his daughter, for a consideration of one dollar, by a deed containing full covenants, in which was the statement that the lots were then in the occupation , of his tenant, John H. Bischoff. Law's title being thus menaced, he conveyed the lots to the plaintiff at a loss of $1,650, besides interest. But the final scene in this interesting drama is still to come. Of the purchase money paid by Law, $2,000 was paid to the clerk of the court. Steps were immediately taken by Townshend, as attorney for Wesley S. Yard, receiver of the Trust Fire Insur- ance Company, to reach this money. The insurance com- pany had obtained against Williams a deficiency judgment in a foreclosure sale for upwards of $2,000 in October, 1842, and that judgment was specified as a liability of the 256 MORTGAGES. bankrupt in the schedules annexed to his petition to be declared a bankrupt in 1843. Although about 27 years had elapsed since he was declared a bankrupt, this debt had not been proved, and in fact no debt had been proved. Now, Townshend, appearing as attorney for the receiver, caused the debt to be proved ; and such proceedings were taken by him (no other debt having been proved) that the whole $2,000, less costs, — about $75, — was paid to the receiver ia September, 1870. The result of all these proceedings in bankruptcy was that Mrs. Townshend had a conveyance of these lots, and some one had the proceeds of the sale by the assignee ; and the only loser seems to have been Law, who unwittingly bid off the lots at the assignee's auction sale. The plaintiff did not seem to be in haste to take possession of these lots, and indeed it does not appear that she ever took possession of them. In 1875 Mr. Townshend first appeared at the lots, and, as he testified, finding them unoccupied he then caused a fence to be put around them, which remained there a few months, and then disappeared. Before the fenc& was built, according to the testimony of one of the plaintiff's witnesses, the lots were occupied by a gardener, and the fence was built to keep him out. It does not appear whether in building the fence, Mr. Townshend acted for himself, or for his daughter, or for his wife. He testified that in 1878 he received a notice from the commissioner of public works to repair the curb and gutter stones in front of the lots, and that in compliance with the notice he made the repairs, as the agent of his wife. Frederick S. Wieck, one of the plaintiff's witnesses, testified that he took from Mr. Townshend a lease of the lots in 1883, and occupied them for about four years, and that he was in possession of the lots now in question before he took the lease. It does not appear that, in making- this lease, Mr. Townshend acted for the plaintiff. These are aU the acts of ownership exercised over these lots by Mr. and Mrs. Townshend at any time, and neither of them ever paid any taxes upon the lot, or assumed any of the burdens of ownership, except the slight repairs to the gutters in front of the lots. These are the facts and incidents attending the plaintiff's title to this lot. The chain of title is apparently complete, and we may assume that it must prevail, unless it has been subverted by the facts yet to be stated. As before stated. Price took back a purchase-money mortgage from Scudder, and that mortgage he foreclosed in chancery. The bill was filed November 21, 1845, and the decree of fore- closure was entered June 11, 1846. Price bid off the property^ and the master's deed to him was executed September 8, 1846; mortgagee's eight to the possession. 257 and then he went into possession of the property, and remained iu possession until January 26, 1855, when he died intes- tate, leaving several children, his only heirs at law. Scudder and various junior incumbrancers were made defendants in the foreclosure suit. But Waddell was not made a party, and hence, as to him, the foreclosure was ineffectual, and his title remained unaffected thereby. In February, 1858, an action was commenced by one of Price's heirs against the others for a partition of the real estate left by him, including the six lots, and judgment of partition was entered, and the property was sold ; but no conveyance of this lot was made, probably on account of the defective foreclosure of the mortgage. Thereafter, in December, 1858, for the pur- pose of perfecting the record title by foreclosing the rights of Waddell as assignee, an action was commenced by Price's admin- istrator to foreclose the mortgage against him. He was named iu the action individually, and not as assignee. He appeared in the action, and on the consent of his attorney a judgment of foreclosure was entered ; and in pursuance of that judgment the property was again sold, and conveyed to Mrs. Coulter, one of the heirs, January 28, 1859. This foreclosure was still ineffectual to cut off the rights of the assignee, because he was not made a party in his representative capacity. The foreclosure was, how- ever, believed to be effectual until, in 1889, we held in the case of Landon v. Townshend, reported in 112 N. Y. 93; 19 N. E. Eep. 424, that it was ineffectual, on the ground stated. The other heirs of Price conveyed their interests in the lots to Mrs. Coulter at various times between the last foreclosure sale and March 25, 1863. The subsequent conveyances of the lot were as fol- lows: Mrs. Coulter to Donovan, April 10, 1863; Donovan to Adams, May 8, 1863; Adams to Whitbeck, March 25, 1864; Whitbeck to Andrew, April 1, 1867 ; and Andrew to William Thompson, March 9, 1868. Thompson died January 13, 1872, leaving all his right and title to the lot to these defendants, his widow and children. It thus appears that the defendant's chain of title is complete, but for the defective foreclosure of the Scudder mortgage; and we will assume, without passing upon other grounds of defense presented for our consideration, that the defendants must rely for their defense upon that mortgage, and the possession of the lot by them and their predecessors. A purchaser at a mortgage foreclosure sale, defective and void, as against the owner of the equity of redemption, because he was not made a party to the foreclosure action, becomes assignee of the mortgage, and, if he lawfully enters into posses- sion of the real estate purchased, he becomes a mortgagee in 17 258 MORTGAGES. possession. Robinson v. Ryan, 25 N. Y. 320; Winslow v. Clark, 47 N. Y. 261 ; Miner v. Beekman, 50 N. Y. 337; Thorn. Mortg. (2d Ed.), c. 8. Therefore, when Price purchased at the defective foreclosure sale, in 1846, he became assignee of the mortgage, and when his administrator again foreclosed the mortgage, in 1859, and Mrs. Coulter became the purchaser, she became the assignee of the mortgage ; and the mortgage passed to the subsequent grantees of the real estate, and to these defendants upon the death of the last grantee. It is undisputed that Price, under his purchase at the foreclosure sale, entered into possession of this lot, and continued to possess it until hisdeath in 1855. His entry was lawful, under color of right, and was ac- quiesced in by Waddell, the assignee. After his death his chil- dren, including Mrs. Coulter, were in the possession of the lot, through their tenants, and that possession, with some interrup- tions, has been continued by these defendants and their pre- decessors to this day. This lot was generally uninclosed, and was used as a garden by market gardeners. In the winter it was necessarily unoccupied , and in the summers it was cultivated and possessed that way. Price, having taken lawful possession, never surrendered his possession. His children took possession from him, and neither they nor any of their successors in the title voluntarily surrendered the possession, or ever intended to aban- don the possession. They always paid the taxes upon the lot, and always claimed title to the same. Their position as mort- gagees in possession, having been once acquired, continued, unless they in some way surrendered or abandoned it. It was not destroyed by the unlawful interference of Townsend, or any other person. It does not appear that they ever acquiesced in, or ever knew of, his pretended possession or interference with the lot. A mortgagee who has lawfully taken possession of the mortgaged premises cannot be ousted or deprived of his rights as such by the mere instruction of the owner of the equity of redemption against his will, or without his knowledge. There must be some act of omission on his part indicating a change in his position. The mortgagee who has taken lawful possession of the land pledged for his debt is not obliged to stand upon the land with a club, to keep off intruders, nor need his con- tinued possession be of such a character as is required by the statute to create a title by adverse possession. If the land be uninclosed, he is not bound to inclose it or to cultivate it. Hav- ing taken possession lawfully, with the assent of the mortgagor or his successor, his relation to the land is not changed until, by some act or omission of his, he intentionally changes it. He may abandon or surrender the possession, or, what is the same PURCHASE OF OUTSTANDING TITLE. 259 thing, he may acquiesce in the possession of the mortgagor or his successors, thereby indicating his surrender of the pledge. Here there is not an atom of evidence tending to show that any of the parties holding under the mortgage ever intended to sur- render the land, or that they knew of any possession by the plaintiff or her pretended agent, or by any act under a lease from him or her. So, too, a mortgagee once lawfully in possession of the land, who has been wrongfully deprived of the possession by the mortgagor or any other intruder, may resume his possession, if he can, and again hold the pledge in possession. Never having voluntarily surrendered or abandoned the possession, he has not lost his right to the possession, and he may again peaceably en- ter into possession, and thus be restored to his rightful position as mortgagee in possession. Here it is undisputed that these defendants were in possession of the lot at the time of the com- mencement of this action, and for some years prior thei'eto. Our conclusion, therefore, is that they are at least entitled to the position of mortgagees in possession, and that hence this action cannot be maintained against them. As this conclusion is suffi- cient for the affirmance of this judgment, we do not deem it im- portant to inquire whether the defendants have any other grounds of defense to the action. The judgment should be affirmed, with costs. All concur. Tenure Between Mortgagor and Mortgagee, in Bespect to Pur- chase of Outstanding Title. Turner v. Littlefleld, 142 HI. 630; 32 N. E. 622. Ceaig, J. This was a bill in equity, brought by Otis A. Tur- ner against Eaton Littlefleld and others, in which the com- plainant seeks to have a certain deed made by the sheriff of Adams County to Littlefleld and William H. Collins, executed December 2, 1879, purporting to convey certain lands, and a certain agreement executed by the Kutherfords and Littlefleld and Collins, declared a mortgage, with right of redemption, as a judgment creditor, and the right to a sale of the lands in satisfaction of his judgment after the pay- ment of the amount of advances made by Littlefleld under the deed and agreement. The record in this case is somewhat vol- uminous, but as to the main facts upon which the decision of the case rests, there is no substantial controversy. On the 13th day of April, 1878, William Marsh obtained a judgment in the circuit court of Adams County against Reuben C. and Bebecca 260 MORTGAGES. M. Eutherford for $5,750, upon which an execution issued April 30, 1878, directed to the sheriff of Adams County, The sheriff of Adams County levied on the following lands in said county, the property of Eebecca M. Eutherford, viz. : S. W. N. E. 31, S. i N. W. 31, 56 acres off north end E. i S. W. 31, the E. i S. W. 34, and S. W. N. E. 34, all in township 1 S., range 8 W.; and also S. -^ N. W. 6, 2 S., 8 W., except a part of the last- named tract set off for homestead. And on June 1, 1878, at a. sale on said execution, all of said real estate was sold to William Marsh ; the part set off for homestead alone excepted. On May 30, 1879, Eobert McComb obtained a judgment in the Adams Count}' circuit court against the Eutherfords for $715.04. Exe- cution issued on this judgment August 22, 1879. McComb re- deemed said premises from the sale under the Marsh judgment by paying to the sheriff the proper amount of redemption money, and the McComb execution was levied on the premises, the part set off for homestead excepted, and on September 18, 1879, a sale under the levy on the McComb execution was made at the court house by the sheriff of Adams County. The lands in section 31, aforesaid, were sold, and a certifi- cate of purchase therefor was given to Eaton Littlefield and William H. Collins. The balance of the lands was sold to other parties. On December 2, 1879, the time of redemption having expired, and no further redemption having been made, the sheriff executed a deed to Littlefield and Collins for the lands they bid off in section 31. It also appears that an agreement was executed by Littlefield, Collins, and the two Eutherfords, bearing date September 18, 1879, which recites that Marsh had obtained the judgment heretofore mentioned, and that a sale of the lands in execution issued thereon. The agree- ment then recites that Eobert McComb had also obtained a judgment as heretofore stated. The agreement then proceeds as follows: "And whereas, the said Eobert McComb, as a judgment creditor, has redeemed the above and foregoing described property (excepting the property lying in section thirty-four [34] as above described) by paying the said Marsh the full amount of his claim thereon ; and whereas, Eaton Lit- tlefield and William H. Collins furnished the money for the payment of a portion of the said Marsh's claim, namely, about four thousand dollars ($4,000), to said McComb: Therefore it is understood and agreed that the said Littlefield and Collins are to take a sheriff's deed of the following described property (when sold to satisfy the aforesaid judgment of the said Eobert McComb), towit, the south- west quarter of the northeast quarter of section thirty-one PURCHASE OP OUTSTANDING TITLE. 261 <(31), in township one (1) south of the base line, and range •eight (8) west of the fourth principal meridian; also the south half of the northwest quarter of said section thirty-one (31) ; also fifty-six (56) acres off the north end of the east half of the southwest quarter of said section thirty-one (31), sub- ject to prior incumbrances, — such deed to be treated as a mort- gage, and said property to be held in trust for the benefit of said Eeiiben C and Kebecca M. Rutherford and their heirs or legal representatives, and as a security to the said Eaton Littlefield and William H. Collins for the repayment to them of the said sura qf-four thousand dollars ($4,000), with the interest thereon annuallj'. And it is further understood and agreed that if, at any time within five years from the date of the said sheriif's deed to the said Eaton Littlefield and William H. Collins, the said Reuben C. and Rebecca M. Rutherfoi'd, or either of them, or their heirs, executors, administrators, or assigns, shall repay the said sum of four thousand dollars ($4,000), with interest thereon at the rate of eight per cent per annum from the 22d day of August, A. D. 1879, together with all money advanced or loaned to said Rebecca M. and Reuben C. Rutherford by said Eaton Littlefield and William H. Collins, or either of them ; also all money advanced or paid by said Littlefield and Collins, or citherof them on the principal or interest that has already acrued or may accrue on any prior liens or incumbrances on said lands, or for taxes, or for any necessary repairs, or for maintaining or keeping in repair the fences on said land, with interest at the rate of eight per cent per annum, — to the said Eaton Littlefield and William H. Collins, or their legal representatives, then the said Littlefield and Collins shall, and they do hereby agree for themselves, their heirs, and executors, administrators, or assigns, to reconvey the last-above described real estate, situate in sec- tion thirty-one (31), township one (1), to the said Reuben C. and Rebecca M. Rutherford, or either of them, or their legal representatives. And it is further understood and agreed be- tween the said Eaton Littlefield and William H. Collins and the said Reuben C. and Rebecca M. Rutherford, and all parties con- cerned, that, in case the said Reuben C. and Rebecca M. Ruth- erford, or either of them, or their legal representatives, credit- -ors, or assigns, shall fail to repay the said sum of four thousand dollars ($4,000), with interest thereon, and other sums or mon- eys as above mentioned, to the said Eaton Littlefield, William H. Collins, or their legal representatives, within the term of five jears, as above specified, then the said sheriff deed to the said Eaton Littlefield and William H. Collins is to be considered and iaeld by them as a deed a;bsolute for them and their heirs for- 262 MOETGAGES. ever. In witness whereof we have hereunto set our hands ancj seals this 18th day of September, A. D. 1879, at Quincy, Illi- nois." It also appears that at the time of the recovery of the March judgment and of the execution of the agreement dated September 18, 1879, said land in section 31 was subject to the lien of a deed of trust dated August 1, 1877, to George Castle, trustee, which was duly recorded in the recorder's oflSce of Adams County, 111.; that on the 14th day of September, 1882, William H. Collins and wife, by their quitclaim deed of that date, conveyed all their right, title, and interest in said land to said Littlefield ; that on the 23d day of September, 1882, George Castle, as trustee, after duly advertising said trustee's sale, in pursuance of the power in said trust deed contained, sold said land to said Littlefield for the sum of $11,850, as bid by him at said trustee's sale, and made and delivered to said Littlefield his trustee's deed of that date, made and executed in pursuance of the power in said deed of trust contained ; and that said trustee's deed was duly recorded in the recorder's office of Adams County on the 28th day of September, 1882. It also appears that on December 14, 1883, Alfred Gatchell recovered a judgment against the Eutherfords for $3,144. Execution was issued on the judgment during the year next following its rendition. On the 18th day of August, 1889, the judgment was assigned to Otis A. Turner, the complainant; and on the 19th day of August following, an execution was issued, and levied on the lands in section 31 heretofore described. On the same day the complainant filed this bill in aid of the execution. It also' appears that on the 30th day of October, 1884, Reuben C. and Kebecca M. Rutherford, by quitclaim deed of that date, con- veyed said premises to Littlefield. It is insisted by complainant that the sheriff's deed to Little- field and Collins, dated December 2, 1879, and the agreement dated September 18, 1879, which showed the terms and con- ditions upon which the lands were redeemed under the McCorab judgment, constituted a mortgage; while, on the other hand, it is claimed that the deed is an absolute conveyance, and the agreement was a mere contract providing for a reconveyance to theRutherfords if within five years they should repay the $4,000' and interest, and the other sums mentioned in the agreement, which they failed to do. Much of the argument is devoted to a discussion of the question whether the Marsh deed was a mortgage or an agreement for a resale, and many authorities Jiave been cited by counsel which are claimed to sustain their PURCHASE OF OUTSTANDING TITLE. 263 respective positions on this branch of the case. We shall not, however, stop to review the authorities or determine that ques- tion, as, in our judgment, the decision of the case does not hinge upon that question. As has been seen, at the time Little- field and Collins purchased the property at sheriff's sale, the lands were incumbered by a deed of trust executed and recorded in 1877. Under this prior lien the property was sold, and pur- chased by Littlefield on the 23d day of September, 1882, long before the complainant's judgment was rendered. As the deed of trust under which this sale was made was the first lien on the property, it is plain, if the sale was made in conformity to the terms and conditions of the deed of trust and Littlefield had the right to purchase the property at the sale, then he acquired the title regardless of the prior sale by the sherifl', and the contract executed in pursuance of such sale, under which the Euther- fords had the right to redeem or repurchase within a specified time. It is a fact beyond dispute that the sale was made in con- formity to the terms of the deed of trust. No unfairness ia charged or claimed from any quarter. The debt secured by the deed of trust was a valid obligation, and the deed of trust executed to secure it was the first lien on the property. But while it is conceded that the sale was in all respects, regular and in conformity to the terms of the deed of trust, and that Little- field purchased at the sale and obtained a deed, yet it is insisted that Littlefield occupied such relations to the Rutherforda in regard to the property that he was precluded from becoming the purchaser at the trustee's sale. After Littlefield and Collins purchased at the sherifi''s sale, they paid all taxes on the property from year to year, until Collins sold out to Littlefield, and from that time until the present he has paid all taxes. After the sheriff's sale, the possession of the property passed into the hands of Littlefield, and he testified that at the sheriff's sale he notified Rutherford that he had no right to any further rents; "that the land was ours." "He acknowledged it, and said he could not live unless we allowed him to have the rents." Littlefield and Collins finally consented that Ruther- ford might have the rents for a time, and he received the rents for the years 1880, 1881, and 1882. In 1879, Littlefield paid the interest on the Castle trust deed, and continued to pay it until the sale in 1882. In 1882 Littlefield became dissatisfied with the situation of the property, and called upon Rutherford to deter- mine whether he would repay the advances which had been made, and take the property, or abandon it; and he testified (and in this he is not contradicted ) that Rutherford acknowledged his inability to take the property, and he then abandoned and gave 264 MORTGAGES. it up. This was a short time before the sale under the deed of trust. His testimony, as shown in the abstract, on this point was as follows: " As 1 said, I did not know whether I was out of the house or not. I met Dr. Eutherford, and told the doctor in June, 1882, that we had waited nearly three years, and I wanted to know whether he was going to buy the property ; that we had paid out all the money. Redeeming was never mentioned be- tween us at any time. I never had any conversation until about that time about his buying. I stated that the property, instead of increasing, was decreasing, in value. I stated the amount that it had cost, and what it cost to pay the Castle trust deed; and I wanted to know whether he could raise the money and buy the property, or whether he intended to do it. I also stated the amount due, when we had the conversation, that he wasowing. The amountthatit would taketo purchasethe property in section 31, and pay his debts, was over $40,000. He stated that he could not pay them; thathemustgiveupall hope, and did give up all hope; that he must turn his attention to try and save his home place, — to save a portion of it. That was the conversation at the time." It is true that the Rutherfords had the right, if they saw proper to insist upon it, under the contract of September 18, 1879, tore- purchase at any time within five years from the date of the contract by repaying all advances; but, if they discovered their inability to perform the contract at any time before the expiration of five years, no reason is perceived why they might not abandon the contract and surrender all rights under it. And, if this was done, then, after such abandonment, it seems clear Littlefield would have the same right to purchase under the trustee's sale that a stranger to the transaction would have. If Littlefield had jSurchased at the trustee's sale without first calling upon the Rutherfords to determine whether they intended to repay the moneys he had advanced, and rely upon the contract under which he procured title at the sheriflTs sale, that might be ground for holding that he was not in a position to purchase and acquire an outstanding title which he could set up as against them. But this he did not do. He had never assumed the Castle deed of trust, and was under no obligation to pay it ; but for the purpose of protecting the title he had acquired at the sheriff's sale he voluntarily paid the interest on the deed of trust from 1879 to 1882, paying out in interest over $2,000. As the property was not advancing in value, he then became apprehensive that theprop- erty was not of sufficient value to repay his advances, and at the same time pay the deed of trust, which, of course, had to be paid, or all the advances made by him would be lost. In this condition of things, he called on the Rutherfords, and requested PURCHASE OF OUTSTANDING TITLE. S'BS them to determine what course they would pursue, — whether they would raise the money to pay the advances on the property or abandon it. They, not being able to raise the money neces- sary to pay the advances, elected to abandon the property, and so notified Littlefield. Under such circumstances, he had the undoubted right, for the purpose of protecting himself, to pur- chase at the trustee's sale. After the Eutherfords notified him that they were unable to perform the contract, and abandoned whatever claim or right they had under it, there was no longer any equitable relation existing between him and them which would forbid him from purchasing the property at the trustee's sale, and relying upon such title, not only as against them, but their creditors. The fact that the Eutherfords had abandoned all claims to the property under the contract before the sale under the deed of trust does not rest entirely in the evidence heretofore alluded to. After the sale in 1882, Littlefield as- sumed the entire control of the property. No rents were paid to the Eutherfords after that year, nor did they exercise, or as- sume to exercise, any control or management of the property; and in October, 1884, they executed and delivered to Littlefield a quitclaim deed of the property. It is not claimed or pretended that any title passed by this last-mentioned deed, but the execution and delivery of the deed is a fact proper for consideration in corroboration of the testi- mony of the defendant that the Eutherfords had abandoned all claim to the property before the sale under the trust deed. In the argument much stress is placed on the fact that Littlefield requested the trustee to make the sale under the deed of trust. We do not think this fact affects the validity of the sale. For four years Littlefield had paid the interest on the deed of trust, and all taxes on the land. The original sum advanced by him at the sheriff's sale remained unpaid, and, owing to the embar- rassed financial condition of the Eutherfords, there was no pros- pect of recovering anything from them. Under such circum- stances, after the Eutherfords had declared their inability to repurchase or redeem the property, we think Littlefield had the undoubted right to call upon the trustee to sell. Indeed, if Littlefield had declined to pay the interest on the trust deed, and he was under no obligation to pay it, a sale of the property would have been the same, whether he had requested it or not. Littlefield made no efl'ort to conceal the fact that the property would be sold under the deed of trust. The sale was a public one, and attended by the Eutherfords, and, so far as it appears, there was nothing in the conduct of Littlefield in con- nection with the sale liable to censure. The judgment of the appellate court will be affirmed. 266 MOETGAGES. Rights of Assignee of Mortgagee. Magie v. Keynolds, 51 N. J. Eq. 113; 26 A. 150. Pitney, V. C. This is, in form, a bill to foreclose a mort- gage. The mortgagors, Eeynolds and wife, set up fraud ia ita procurement, and by cross bill ask that it be delivered up to be canceled. The ultimate question in the cause is, which of two innocent parties — the complainant on the one side, or Eey- nolds and his wife on the other — shall suffer by the fraudulent practices of a third party? The mortgage thought to before- closed was executed by the defendants, Reynolds and wife, to Emma A. Sumner, the wife of Perrin H. Sumner, on the 2d of January, 1889. It was assigned by Mrs. Sumner to the defend- ant, Benjamin G. Bless, on the 18th of December, 1889, and again by Bless to the complainant on the 15th of March, 1890. The mortgage covers a small farm and dwelling situate at Maywood, near Hackensack, Bergen County, N. J. The par- ticulars of the fraud set up in the answer and cross bill are as follows: That Reynolds was the owner of the farm above men- tioned, upon which there was an undeveloped brown stone quarry, and being desirous to have it developed, he applied to Sumner to assist him therein, and that Sumner undertook to do so, but that he required some security to be given to invest- ors whom he might interest in it that it would turn out upon experiment that thej'e was a sufficient quantity of marketable stone upon the premises, and for that purpose induced the defendants to execute the bond and mortgage in question; and they allege that in point of fact they received no consideration whatever for the mortgage, except as follows : That Sumner, upon their objecting to giving a mortgage under the circum- stances and for the purpose just stated, proposed to give them a counter indemnity in the shape of a one-tenth interest in a farm containing 525 acres, situate at Manor, in Suffolk County, L. I., which Sumner then pretended to own, and stated to them that it was worth $50,000, and that, relying upon the represen- tations, statements, and promises of Sumner, they took a deed from Sumner for a one-tenth interest in the said tract of land. That afterwards Sumner informed them that he had agreed to sell his interest in the farm to Bloss, and that, in order to enable him to make a conveyance, it was necessary that the defendants should return to him, Sumner, the deed which they had received from him, and which had not been recorded, and that for such surrender Sumner would give them a con- sideration in valuable gold mining stock, from which could at once be realized a sum sufficient to operate the quarry^ RIGHTS OF ASSIGNEE OF MORTGAGEE. 267 Believing these representations, they surrendered the deed to Sumner, and thereupon received a quantity of gold mining stock; and by way of making them believe that the stock was valuable, Bloss loaned them $50 on a prom- issory note of Keynolds, and took as collateral one of the certificates of stock, representing 25 shares of the stock in a gold mine. That the said shares of stock turned out to be utterly valueless, and that Sumner promised to return the bond and mortgage and deliver it up to be canceled. The replication to this cross bill sets up that the mortgage was given for a full con- sideration, namely, the conveyance of the interest in the Long Island farm, and denies the allegations that the mortgage and conveyance were made by way of indemnity and counter indemnity. The facts are that Reynolds was a retired officer in the marine service of the United States, having attained the rank of cap- tain, and reached the age of about 65 years, and having been dropped or discharged from the service, and being very poor and without means of support, and having no property except the farm in question. • He was a man of no business training or capacity whatever, of slender intellect, and entirely unfit to take care of himself in dealing with a shrewd man of the world. His wife was some years his junior, with the ordinary capacity of an American wife, and without any experience in business. They were very poor, and the captain was anxious to obtain employment and occupation, and also to derive some income from the supposed stone quarry on his farm. Some time prior to the 1st of January, 1889, one Willis was the owner of the farm in question on Long Island, which was called the "Horn Tavern Farm," subject to a mortgage of $6,000, held by the Mutual Life Insurance Company of New York, and some judgments against Willis, and arrears of taxes, etc., and being desirous to sell the farm, he applied to Sumner to do it, and agreed to give him one-third of all he got over and above the incumbrances, and that Sumner procured a Dr. Marquet to take a one-third interest in it at a price actually paid of over $2,000, and Sumner received from Willis a conveyance for the other two-thirds to his son, Arthur E. Sumner, who sub- sequently, in December, 1888, conveyed it to Emma A. Sumner, so that Emma A. Sumner, on the last of December, 1888, had standing in her the title to two-thirds of this Long Island farm. I am satisfied from the evidence of Dr. Marquet and Bloss and the circumstances that the farm was worth nothing above the incumbrances. Such being the situation, in the middle or towards the last of the year 1888, Eeynolds was introduced to 268 MOKTGAQES. Mr. Sumner, who had an oflSce in Broadway, New York, and solicited his aid in developing the stone quarry. Samner immediately set about procuring a mortgage from the captain and his wife on their farm, and, according to their story, first tried to trade them some coal lands and other matters of that kind, and finally, as they both swear, he induced them to give him the mortgage in question, substantially under the circum- stances and for the reasons set out in their answer and cross bill, viz., as an indemnity to secure persons taking an interest in the stone quarry, and that the conveyance of the tenth interest in the Long Island farm was given as a security to them against the mortgage. This evidence on their part is denied by Sumner, and, in point of fact, on the 31st of December, 1888, Capt. Reynolds and wife and Arthur E. Sumner entered into a contract in writing, which is made up partly of print and partly of man- uscript, and is full of interlineations and erasures, so that it is quite difficult to decipher, and some of the interlineations are in different ink from the other part of the writing. None of them are noted, so that it is impossible now to determine from the face of the paper what parts were actually written in it at the time it was signed. The purport of it is that Capt. Reynolds and wife, in consideration of one dollar, agreed to grant and convey unto Arthur E. Sumner a first mortgage and bond on the Bergen county farm, to be due in five years from the date, to bear inter- est at the rate of 6 per cent per annum, semi-annually; and Sumner agreed to grant and convey unto Reynolds and wife an undivided one-tenth interest in and to the Long Island farm by quit-claim deed, but, in case the land in the mean time should be deeded to a company, Reynolds was to have one-eighth of the sur- plus stock of the company after the treasury stock had been de- ducted. It is stated in the contract that the entire tract of land was subject to a mortgage of $6,000, held by the Mutual Life Insur- anceCompany of New York, and other liens, judgments and taxes and that the judgments are to be taken care of and paid by L. Marquet as per his agreement ; that the deed or the stock in the company to be formed to develop the Long Island farm were to be delivered on or about the 25th day of June, 1889, but the mortgage was to be delivered directly, the mortgage to be made to Sumner, or to any one he might designate; and there is an interlineation in a different ink to the effect that no warranty or representations have been made by P. H. Sumner or any one as to the value of said farm. Reynolds and wife admit their sig- nature to this paper, but they have no recollection of having signed it, or of knowing the contents or effect of it ; and it is manifest that at this time, and for a considerable period after- RIGHTS OF ASSIGNEE OF MOETGAGEE. 269 ■wards, they had perfect confidence in Sumner, and would have signed anything he asked them." It will be observed that at the time this contract was entered into with Arthur E. Sumner the title to the premises was not in him, but in his mother. On the 20th of February, 1889, Mr. and Mrs. Reynolds signed another agreement, in which they agreed to accept one-tenth of the surplus of the stock of a com- pany to be formed after the stock to be put into the treasury of the company has been deducted in payment in full of the mort- gage of $5,000 above stated. The contract does not state what the company was to be formed for, but the allegation and inference is that it was to be formed to develop the Long Island farm, to turn it into a cranberry farm. On the 26th of March, 1889, Mr. and Mrs. Sumner executed a deed to Reynolds and wife, in consideration of one dollar and other considerations, for the one-tenth part of the Long Island farm, " subject to a mortgage given to the Mutual Life Insurance Company of New York to secure the payment of $6,000 and interest, and also sub- ject to certain judgments now on record in said county of Suf- folk." That deed was acknowledged on the same day, and delivered, but, at the request of Sumner, was not recorded until the 21st of August, 1889, on which day a suit was com- menced in the Supreme Court of New York for Suffolk County by Willis and wife, the original owners of the Long Island farm, against the three Sumners, praying that the conveyance from Willis to Arthur E. Sumner and from him to Emma A. Sumner might be set aside on the ground that it was procured by fraud. This suit was undoubtedly the reason for the recording of this deed and others now to be mentioned. Shortly before that date — August, 1889 — Sumner introduced Reynolds and wife to Bloss, and the result of that introduction was that on the 14th of August, 1889, Mr. and Mrs. Reynolds conveyed their one-tenth interest to Bloss ; and Sumner and his wife having, on the 29th of July, 1889, by deed of that date, recorded Aug- ust 23, 1889, conveyed seventeen-thirtieths of their interest to Bloss, Bloss now held two thirds of the title to the Manor farm. As a consideration from Bloss to the Reynoldses for the conveyance by the Reynoldses to Bloss of the one-tenth interest in the Long Island farm, Bloss transferred to the Reynoldses 275 shares, par value of $10 each, of the Bay State Gravel Mining Company of Butte County, Cal., and 200 shares of the Queen Bee Gold Mining Company of Dakota, the par value of which is not stated. These shares were said to be worth $2 a share at the time. Bloss also transferred to him one other certificate of 25 shares of some kind of mining stock. 270 MORTGAGES. which Bloss took back as collateral security for $50 advanced to Capt. Reynolds, for which he took his note. The aggregate value of all the shares transferred, at the value placed upon them at the time, was only about $2,500. Sumner and wife and son answered the suit brought by Willis and wife against them, and set up that they had no further interest in it, because they had conveyed all their interest to Bloss. The complaint was amended by bringing in Bloss and Reynolds and wife. Bloss answered, denying the fraud, and claiming to be a bona fide purchaser for a valuable consideration without notice of the two-thirds con- veyed to him, but does not set out in his answer what that con- sideration was. Reynolds and wife did not answer. The cause came on for trial before Judge Bartlett of the Supreme Court in the summer of 1890, both Bloss and Reynolds being present at the trial and being sworn as witnesses, and the court found as a mat- ter of fact that the conveyance from Willis and wife to Arthur E. Sumner was absolute as to one-third, but as to the other one- third it was in trust, and that as a matter of fact the defend- ants Reynolds and wife received their title to one-tenth merely as a collateral security, and that at the suggestion of Sumner they transferred the title to Bloss, and that Bloss was not a purchaser for value, and that he held the title for and in the interest of Sumner. In the meantime Sumner and wife, on the 18th of December, 1889, assigned the Reynolds mortgage in question to Bloss by deed which stated a consideration of $5,000. That assignment was recorded on the 1st of February, 1890, and Bloss, on the 15th of March, 1890, assigned it to Abby M. Magie, the complainant herein, and that assignment was recorded on the 15th of April, 1890. No money was paid directly by Bloss to Sumner for the assignment from Mrs. Sumner to Bloss, and the evidence of Sumner and Bloss on the subject of the con- sideration is unsatisfactory. As to the assignment from Bloss to the complainant, however, the evidence shows that Bloss nomi- nally, but Sumner really, who was the actual owner at that time, received a valuable consideration from Mrs. Magie for it. That consideration arose in this wise : Mrs. Magie is an aged lady, residing in Kansas City, Mo., and has no personal knowledge of any of these transactions. She is represented here by her daughter, a Mrs. Terhune, a very worthy lady, rejiding in Brooklyn, who had the misfortune to come into contact with this man Sumner. Mrs. Magie, the complainant, was the owner of a house and lot at Roselle, in Linden township. Union Coun- ty, N. J., and on the 20th of November, 1889, conveyed that property to Benjamin G. Bloss by deed which, though dated in 1884, was not delivered or recorded until the EIGHTS OF ASSIGNEE OF MORTGAGEE. 271 ■20th of November, 1889. It was in fact executed in 1884, with the name of the grantee left blank, and in November, 1889, Bloss' name was inserted in that blank. Sumner, who conducted the transaction, knew of this, and was willing to ac- cept the deed under those circumstances. Bloss, on the 11th of November, and shortly before the deed from Mrs. Magie to him was lodged for record, executed a mortgage to Mrs. Magie upon the property so conveyed to him, to secure the payment of $4,- 250, part of the consideration money, in five years from date. Mrs. Terhune had become the owner, through the agency of Sumner, of a tract of land adjoining the Horn Tavern farm on Long Island upon which Mrs. Sumner held a mortgage of $1,000, and Sumner proposed to Mrs. Terhune that if she would cause her mother, Mrs. Magie, to assign to his wife the mortgage which she held against Bloss for $4,250 on the Eoselle property he would procure Bloss to assign to her an interest in the Reynolds mortgage here in question, and would discharge the mortgage which Mrs. Sumner held upon Mrs. Terhune's prop- erty in Suffolk County ; and that arrangement was made, Mrs. Magie, on the 11th of March, 1890, assigned to Mrs. Sumner the mortgage which she held against Bloss on the Eoselle property, and Mrs. Sumner assigned to Mrs. Magie the mortgage on the latter's property on Long Island, and Bloss thereupon assigned to Mrs. Magie the mortgage here in question to the extent of the sum of $3,042.74, and Bloss guaranteed the payment of it to that extent to Mrs. Magie. Mrs. Sumner immediately released to Bloss the mortgage so assigned by her to Mrs. Magie, and took a new mortgage in its place, and subsequently procured the property at Roselle to be sold for taxes, and it was , bought in by Mrs. Sumner. So that Mrs. Sumner at present holds the tax title to the Roselle property, and a mortgage upon it, and Mrs. Magie holds the title to the Reynolds mortgage to the extent of a little over $3,000. I should have observed that at the very time, to wit, December 31, 1888, when these trans- actions occurred between Reynolds and wife and Sumner, the mortgage held by the Mutual Life Insurance Company of New York on the Long Island farm had been foreclosed, proceeded to decree, and the property was actually advertised for sale by the sheriff; and afterwards (just when does not appear) the property was sold and bought by the company at a price less than enough to pay the mortgage ; but the Mutual Life Com- pany gave the parties who appeared to be interested the privilege of redeeming it by paying $5,000, and those parties at the hearing were admitted to be Mr. Perrin H. Sumner as to one half, and an outside party, not connected with these transac- 272 MORTGAGES. tions, — one Whitlock, — as to the other part; thus confirming^ the finding of Judge Bartlett that Bloss never really had any interest whatever in that farm. It abundantly appears that the shares of mining stock which Capt. Reynolds received were of no value whatever, and the evidence of Bloss and Sumner failed to satisfy me that any consideration was paid by Bloss to Sumner on the assignment of the mortgage. But whether any consideration passed between Bloss and Sumner is immaterial, since both swear that at the date of the transfer to Mrs. Magie, Bloss' interest in it had ceased, and he held it for the benefit of Sumner or his wife. I am also satisfied that neither Capt. Reynolds nor his wife understood the nature or character of the contract of December 31, 1888, which they signed, and also that the subsequent trans- fer of the share in the Manor farm to Bloss was done at the instance and request of Sumner, and without any idea on their part that by so doing they were giving any additional strength to, or varying the character of, the mortgage. It is further in proof that uo demand was ever made by Sumner or his wife upon Capt. Reynolds for interest; that a formal demand was made by Bloss, but never followed up, and upon the assign- ment by Bloss to Mrs. Magie the bond and mortgage was retained by Bloss, and that he paid interest to Mrs. Magie on the portion of it which he did assign to her and finally, failing to pay, she took measures to get possession of the bond and mortgage itself, which she finally did, and brought this suit on the 17th of November, 1891, nearly three years after the mort- gage was given, and more than two years after the first default in interest. Mrs. Magie made no inquiries of Captain Reynolds or wife or any one in their interest as to the validity of this mortgage, and took it blindly upon the assurance of Sum- ner. In point of fact Mrs. Terhune applied to Sumner to sell her mother's house and lot at Roselle. Sumner found a pur- chaser in Bloss, though I doubt if Bloss was anything more than a figurehead for Sumner. He also induced her to purchase the property in Suflblk County, and his hand is visible through- out all the various transactions heretofore detailed. Without going through the details of the various interviews between Capt. Reynolds and wife and Sumner and Bloss, I am satisfied that the mortgage was procured by fraud, without any consider- ation, unless the shares of mining stock may be so held, and that Bloss' connection with the affair was entirely in the interest of Sumner, he lending himself to Sumner to aid him in defraud- ing Reynolds and wife, and that he never had any interest in the bond and mortgage ; so that, if either Mrs. Sumner or Bloss EIGHTS OF ASSIGNEE OF MORTGAGEE. 273 ■were complaiDants in the cause, the result would not be open to a moment's doubt. The well-settled rule in this State, as well as in other equitable jurisdictions, is that an assignee of a bond and mortgage takes it subject to all the equitable defenses which the original obligors and mortgagors have thereto. This is so at law as well as in equity. It was so held at law in an action on a bond in Barrow V. Bispham, 11 N. J. Law, 110, after an elaborate consideration of the authorities. And the same doctrine was held in equity by Chancellor Vroom in Shannon v. Marselis, 1 N. J. Eq. 413. At page 424 the chancellor examines the authorities in England and New York, and quotes with approbation the language of Chancellor Kent in which he states that it is the duty of the assignee to make inquiries of the obligor or mortgagor or per- son owning the equity of redemption before taking an assign- ment of the bond and mortgage. And see the remarks of the lord chancellor in Matthews v. Wallwyne, 4 Ves. 118, at page 127. This ruling was followed in Jaques v. Esler, 4 N. J. Eq. 461, by Chancellor Haines and by Chancellor Green in Wood- ruff V. Depue, 14 N. J. Eq. 168, and by Chancellor Zabriskie in Conover v. Van Mater, 18 N. J. Eq. 481, and again by the same judge in Coursen v. Canfield, 21 N. J. Eq. 92, and has never been questioned or doubted, and finally has the approval of the court of errors and appeals in Atwater v. Underhill, 22 N. J. Eq. 599, at page 606. The principle underlying this rule is that the mortgage is a mere incident of the debt which it is intended to secure, and a defense to the debt is a defense to the mort- gage. If the mortgage is given to secure a negotiable promis- sory note, and the note is negotiated for value in the ordinary way before maturity, the holder will hold it and the mortgage free from all defenses. 2 Jones Mortg., § 1487, and cases cited. But if the mortgage be given to secure a non-negotiable instrument, the assignee takes it subject to all defenses to the bond or other instrument manifesting the indebtedness. In this aspect the assignment of a mortgage, though it assume (as it usually does) the form of a conveyance of land, differs from an ordinary conveyance in which the grantor for value takes the title free from all prior convey- ances and equities of which he has no actual or construc- tive notice. Carpenter v. Ldngan, 16 Wall. 271, at page 275 ; Matthews v. Wallwyne, 4 Ves. 118, at page 129; Coote Mortg. p. 301 ei seq. A mortgagor and obligor may, however, so con- duct himself as to mislead a proposed assignee, and estop himself from setting up his defense ; and I have looked with care into this case to see if I could find anything in the conduct 18 274 MOKTGAGES. of Mr. and Mrs. Eeynolds which would estop them as against Mrs. Magie. It is true that Bloss swears that shortly before he took the assignment from Mrs. Sumner he talked with Mr. and Mrs. Eeynolds about this mortgage, and they declared it was a good mortgage, and seemed anxious that he should take it, and advance the money upon it, and it is evident from his evidence, if truthful, that they at that time expected that, if Bloss did advance the money upon it, they would get it; and if he had done so, upon the hypothesis that his evidence is true, the mortgage would have been a valid security in his hands. But the fact is that I am not satisfied that Bloss ever advanced any- thing at all upon the mortgage to Sumner or his wife, and the undoubted fact is that if he did so he had been repaid all that he advanced prior to the date of the transfer to Mrs. Magie, because, as before remarked, Sumner or his wife were the undoubted owners of the mortgage at that time, and received from Mrs. Magie the consideration for its assignment. Bloss assigned it at their request, and for their benefit, and at that time claimed no interest in it. No interest was ever paid on the mortgage, nor is there any indorsement of interest upon it, so that the complainant was not misled by anything of that sort; and, as before observed, she made no inquiries with regard to it from either Reynolds or his wife or anybody representing them. Two matters have been put forward as furnishing some ground for an estoppel. One is a contract entered into between a man by the name of Randall and Mr. and Mrs. Reynolds on the 10th of October, 1889, in which Reynolds and wife agreed to ex- change with Randall 10,000 shares of stock in the Maywoos Brown Stone Quarrying Company (which had been organized for the purpose of developing the stone quarry) for a lot of land in Norwalk, Conn., owned by Randall, and in that contract there is a statement that the property of the quarrying company consisted of about sixteen acres of land underlaid with brown stone, " subject to a mortgage of $5,000, with interest at five percent per annum." This clause in this cOiUtract is relied upon as a recognition by Reynolds and wife of this mortgage, but it does not appear that Mrs. Magie ever saw it, or in any wise relied upon it. Then, again, there is produced a deed dated the 20th of February, 1889, made very shortly after the execution of this mortgage, by Reynolds and wife to the stone quarrying com- pany of a part of the mortgaged premises, said to contain about seventeen acres of land, and which was duly re- corded, and in that deed is this clause: "Subject to one mortgage now on the said premises, given to secure the pay- RIGHTS OF ASSIGNEE OF MORTGAGEE. 275 ment of $5,000 and interest thereon." This reference to a mortgage, like that in the contract to Randall, does not identify it, and it does not appear in this case either that Mrs. Magie or her agent ever saw or relied upon that deed in any way. The only fact which has at any time struck me as affording the least ground of estoppel is the forbearance of Reynolds and wife to take any steps to have this mortgage canceled and removed. It will be observed that it was made and executed on the 2d of Jan- nary, 1889 ; that it was assigned by Sumner to Bloss on the 18th of December, 1889, and that this assignment was recorded on the 1st of February, 1890, and that it was assigned by Bloss to Mrs. Magie on the 15th of March, 1890. When asked upon the stand why they had allowed the matter to remain so long, Rey- nolds and wife said that they were at all times poor ; that at first they had confidence in Sumner ; then they began to lose confi- dence, and asked him to return the mortgage, and that he prom- ised from time to time to do so, and that they relied upon his promises, and then that theyconsulted counsel in New York, who promised to do something for them, but was taken sick and died, and that in thejmean time they were in hopes of managing to get the mortgage out of his hands by friendly negotiations, and that finally they put the matter into the hands of Mr. Campbell, their counsel in Hackensack, who, for some undisclosed rea- son, did nothing until the bill to foreclose was filed in this cause. But upon full consideration I have come to the conclu- sion that it was not the duty of Mr, and Mrs. Reynolds to com- mence suit to have this mortgage canceled, and that their not doing so forms no ground of estopped. They had a right to rely upon the well-settled rule of law that the purchaser of a chose in action of this character takes its subject to all equities, and that he has the power to protect himself by making inquiries at the proper sources ; and therefore they are entitled to a decree that the complainant's bill be dismissed as to them, and that they are entitled to have the bond and mortgage delivered up to be canceled. This result renders it unnecessary to determine the question arising as against Mrs. Day, who, in the summer of 1889, pur- chased a small piece of this farm from Mr. and Mrs. Reynolds, and entered into immediate possession of it. Reynolds pro- cured from Sumner a release of this lot, which he handed to Mrs. Day, with her deed. It was executed before the assign- ment from Sumner and wife to Bloss. Mrs. Day, however, failed to get it recorded until this bill was filed. I am referred on this part of the case to the act of February 25, 1880, the heirs claiming his estate in Cook County as intestate property, resided at Hav- erhill, in the State of Massachusetts. At the time of his death he owned a large estate in Massachusetts, consisting of both real and personal property, all of which it is conceded was disposed of by his will, whichwas, after his death, admitted to probate in that State, and which is conceded by all parties interested to be valid under the laws of Massachusetts. The testator also left a large amount of property situated in the State of New York, and the property involved in this litigation in Illinois. The larger portion of the estate seems to have been in Massachusetts, where the testator had resided and where his will was admitted to probate. It seems the testator gave various legacies and de- 424 EXECUTORY DEVISES. vises, and provided in different clauses of his will for life annuities, to a number of persons, — perhaps 12 in all, — and for other annuities, payable at stated periods, until the final division of the residue of his property under the provisions of his will. It is understood, and perhaps admitted, that there is sufficient estate in Massachusetts out of which to pay all leg- acies, devises, and annuities provided for or declared in the will. It is not claimed that any of the property belonging to the estate situated either in New York or this State will be wanted for the payment of either legacies, devises, or an- nuities under the will. The bill in this case alleges the will of Ezekiel J. M. Hale, deceased, was admitted to probate in Massachusetts, where he died, no one objecting; which is an admission it was valid, and disposed of all the prop- erty belonging to the estate in that State. But the bill is framed on the theory it was not the intention of the testator to devise the real estate now sought to be partitioned ; that the scheme of his will was not adapted to the condition of his estate in New York and in Illinois, and was not intended to convey the same ; that by the laws of Illinois and New York the devise was void, and had been so declared by the courts of the latter State; that such testator well knew that the provisions of his will, if applied to his real estate in New York and Illinois, made the same illegal and void on account of the statutes of such States prohibiting perpetuities ; that if the provisions of the will should be applied to the lands in Illinois or New York, the same could not be alienated for many years, and not until after the death of 12 life annuitants ; that the property in Illinois is unproductive, and cannot be made productive; that the taxation upon it is large, and that the interest and taxation will entirely absorb the value of said real estate, so as to render it a total loss to the heirs, if it should be held to be included within the terms of the will, and hence not subject to division except in accordance with the will. It is alleged the property situated in New York belonging to the estate exceeds in value $1,000,000, and that in Illinois is now estimated to be of the value of $200,000. The executors answered the bill as they were required to do, in which they admitted most, if not all, of the formal charges in the bill, but insisted the lands sought to be partitioned passed to them under the residuary clause of the will of the testator ; and on filing their answer, they tiled a cross-bill, in which they claimed to have the power under the will to sell such real estate, and ask the court to so decree. The respondents in their cross-bill make the same allegation as is contained in the original bill ; that, unless the property described in the bill can be sold. EULE OF PERPETUITY ACCUMULATIONS OF PKOFITS. 425 it will be absorbed by taxes and assessments and other expenses before the time for distribution would arrive under the provisions of the will. The superior court, at the hearing of the cause, dismissed the cross-bill of respondents, and found that the prop- erty described in the original bill was intestate property, and decreed a partition of the same, as it was asiied to do. That decision is assigned for error. The residuary clause of the will out of which all the questions made on this record arise is as follows: " Twenty-second. As to the residue and remainder of all my estate, both real and per- sonal, not herein otherwise disposed of, it is my will that the same be and remain in the care and control of my said executrix and executors and trustees, and their successors well and safely ■invested, until the decease of the last survivor of the life an- nuitants named in my foregoing will ; and that then the said residue and remainder, with all the accumulated interest thereof, shall be divided equally among my grandchildren ^ei" stirpes, to hold to such grandchildren so distributed, and to their heirs, executors, administrators, and assigns, forever." Most of the other clauses of the will contain provisions for legacies, bequests, devises, and annuities to certain persons, and others contain specific directions as to what disposition shall be made of certain property ; and beyond giving an outline of the general scope of the will, and the intention of the testator as to the management of his estate by the executors and trustees, they contain nothing that is important in connection with the present discussion, and their contents need not be stated other than in a general way. Two principal questions are made by the original and cross bills: (1) Whether the lands involved were devised by this clause of the will, or whether the same can be treated as intes- tate property, as not being embraced in the will; and, (2) if it shall be held the lands were devised, is any power given the executors and trustees, either expressly or by implication, by this or any other clause of the will, to sell these lands at any time within their discretion? It will be found most convenient to consider these questions in the inverse order in which they are stated, which will be done briefly. There is and can be no pretense that any express power is given to the executors and trustees to sell any real estate situated in New York or in Illinois that had belonged to the testator by the twenty-second clause, or any other clause, of his will ; and if any such power exists in them it must arise by implication from powers conferred or duties expressly imposed by the will in re- gard to such real estate. Power is expressly conferred upon the executors and trustees to sell certain real property, as in the 426 EXECUTORY DEVISES. second clause of the will, but nothing is said anywhere in the will concerning the sale of the real property in New York or Illinois. It is not even mentioned by any description, by loca- tion or otherwise. If it is devised at all, it is by the twenty- second or residuary clause of the will, and not otherwise. But does the twenty-second paragraph of the will confer any power upon the executors and trustees to sell real estate situated in New York or Illinois, even by implication? It is thought it does not. There can be no doubt of the correctness of the rule stated by counsel that authority to sell and convey trust property may be conferred by implication; as for instance, where duties are imposed by the instrument creating the trust upon the trustee, which he cannot perform without making a sale, the law will imply the necessary power ; otherwise there would be a fail- ure of the objects of the trust, A most common example is where there has been an assignment for the payment of debts, if no express power is given to sell the trust property, the duties to be performed by the trustees will necessarily create the power of sale, for it is obvious in no other way could the trustee perform the duties required of him by the instrument creating the trust. The law will not permit a trust to fail because it may be inartificially declared or ex- pressed This is undoubtedly as liberal a statement of the im- plied powers of trustees as the law will sanction. Applying this rule, neither the twenty-second clause, nor indeed any other provision, contains anything that indicates, by implication or otherwise, it was the intention of the testator that his executors and trustees should have power to sell and convey any of his real property, either in New York or Illinois, for the purpose of converting it into personalty. The words supposed to manifest the intention of the testator in this regard are " that the same be and remain in the care and control of my said executrix and executors and trustees, and their successors, well and safely in- vested, until the decease of the last survivor of the life annuitants named in the foregoing will." It is said the words " well and safely " mean that the testator gives the executors and trustees the usual authority to make prudent investments, and that they mean they must keep the property invested. The vice of the argument on this branch of the case lies in detaching these words from their place in the will, and giving to them a meaning in- consistent with the context. What is the direction given by the testator concerning this property in New York and Illinois? It is that it " remain in the care and control " of the executors and trustees, " well and safely invested." That is, it is to " remain," as now, " well and safely invested." Any other would be a BTJLE OF PERPETUITY — ACCUMULATIONS OF PROFITS. 427 strained and unnatural construction of the words of the will. So far from indicating any intention on the part of the testator that his executors and trustees should sell his lands either in New York or Illinois, the words used indicate unmistakably it was his intention and purpose they should '• remain " in the care and control of his executors and trustees, " well and safely in- vested," as they then were, until the time appointed for the distribution of the residue of his estate, both real and personal, should arrive. The principle running through all the cases on this subject, so far as the writer has been able to examine the same, is, the provisions of the will must be so clearly written as to leave no doubt of the intention of the testator to have his real estate converted into personal estate, to sus- stain the doctrine of what is called equitable conversion. That intent does not appear from any language used by the testator in this case, and it is not perceived his trustees have any implied power to change the real property devised into personal estate for reinvestment or otherwise. This precise question was presented to the Court of Appeals of the State of New York by the same parties to this litigation ; and in an action brought by these executors and trustees to obtain a construction of certain pro- visions of the last will and testament of Ezekiel J. M. Hale, deceased, that court held, after most elaborate argument, the will, while valid under the laws of Massachusetts, where the tes- tator died and where his will was admitted to probate, contained no express direction for the conversion of the real estate into personalty, or for the sale of the real estate. Hobson v. Hale, 95 N. Y. 588. This court is entirely satisfied with the conclu- sion reached by the court of appeals in that case, and the elab- orate discussion there given to the exact question involved in the case now being considered would seem to relieve this court from the necessity of any extended consideration of the question. Under this view of the meaning of the will, the relief demanded by the cross-bill, that the right of complainants in that bill to sell and convey the lands involved and to convert the same into money may be established and declared, was properly denied. The remaining question arises on the original bill, and is whether the lands situated in Illinois, and which belonged to the estate of the testator, were devised by the residuary clause of the will, or whether the same can be treated as intestate prop- erty, as not being embraced in the will. There is evidence tend- ing to show what the court found by its decree, that the testator bought these lands in Cook County for speculation, and that had he lived it is probable he would have sold the same on receiving the first favorable offer. That he gave expression to such views 428 EXECUTOKT DEVISES. is proved past all doubt, but whether he changed his mind in that regard before his death of course cannot be known. Con- struing the will in the light of the surrounding circumstances, as the law requires shall be done, does it show the testator in- tended to omit these lands from the operation of his will? It is seen the residuary clause of the will is as broad and comprehen- sive as it can well be expressed. It is, " As to the residue of all my estate, both real and personal, not herein otherwise dis- posed of." Primarily the words "all of my estate" mean all the estate of the testator, wherever situated, and that meaning will always be given to them unless something in the context will show a more restricted construction that will better comport with the clear intention of the testator. It will be noticed the real estate of the testator situated in New York, if devised at all, was devised by this same clause of the will. There is no other clause of the will that can have the slightest application to it. If the lands in Illinois shall be held not to have been devised by the twenty-second clause of the will, the conclusion would necessarily be the New York lands were not within its operation. No one has ventured to suggest the testator did not intend by this clause of his will to devise his property in New York. When the case was before the court of appeals of New York, that court seems to have held, without much discussion, the property in that State was devised by the will ; for it was said: " While it should not be overlooked that the testator was domiciled in the State of Massachusetts, and his will was executed there, it should also be borne in mind that by his will he devised his real estate, as real estate, situated in the State of New York." Any other con- clusion would be too improbable to be adopted. The same words in the will that are held to constitute a devise of lands in New York include also the lands in Illinois. Either the lands in both States are devised, or they must be treated as interstate property in both States. It is incredible that a testator making a will that by its terms, when understood in their primary sense, disposes of all " his estate, both real and personal ' ' omitted there- from property conceded to be of the value of over $1,200,000. Such a proposition is too improbable to be adopted, unless the testator was incapable of comprehending what he was doing. Plainly the residuary clause of the will is broad enough to include all the property of the testator, no matter where situated, and there is nothing in either of the attendant circumstances, or in any other clause of the will, that shows any intention on the part of the testator to omit any property in Illinois or elsewhere from its operation. When this case was before the court of appeals of New York it was held that the clause of the twenty-second KEMAINDER IN CHATTEL REAL — EULE IN SHELLEY'S CASE. 429 paragraph of the will that postponed the final division of the estate until the death of the last survivor of the life annuitants, so far as it applied to real estate in that State, worked an unlaw- ful suppression of the powers of alienation, and was for that reason void, and it was also held such clause was repugnant to the provisions of the statute of that State prohibiting accumula- tions except for the times and purposes therein permitted. No such objection lies to that provision of the will in this State. A perpetuity in this State is defined to be a limitation taking the subject thereof out of commerce for a longer period of time than a life or lives in being and 21 years beyond. Here the right of alienation is not suspended for any period beyond the lives of certain persons in being, and hence this provision of the will is not repugnant to any rule of law in this State inhibiting perpetui- ties. But it is said a construction that would postpone the aliena- tion of this property for more than fifty years is opposed to public policy. The limitation fixed is to terminate at the death of certain life annuitants, and of course when that contingency will happen is a matter of the merest conjecture. It might occur within 5, 10, 20, 40, or 60 years. Of course the time is indefinite, and all that can be known concerning it with any degree of cer- titude is that it is sure to happen sooner or later. The time for which the executors and trustees are to hold the residue of the estate, for which there might be a suspension of the right of alienation of the property in controversy, is limited to the death of the last survivor of the life annuitants, and it is not perceived that in that respect it contravenes any public policy existing in this State. The decree of the superior court dismissing the cross-bill will be affirmed, and the decree grant- ing the relief demanded on the original bill will be reversed, and the cause will be remanded, with direction to that court to dismiss the original bill also. Kemainder in Chattel Real — Executory Devise — Kule in Shelley's Case. Hughes V. Nichlas, 70 Md. 484-, 17 A. 398. McSheeby, J. The single question involved in this appeal is what estate did Jane Shaw take, under the will of George Ack- erman, in certain leasehold property? It is insisted by the ap- pellant that she took an absolute interest therein, while the appellee contends that she was entitled only to a life-estate, and that upon her decease the remainder passed to Christiana Sny- der. The will of George Ackerman must determine this con- 430 EXECUTORY DEVISES. troversy. It bears date May 16, 1831, and was admitted to probate October 28, 1834. The only clauses which have any reference to the question before us are in the following words: "And to my adopted child, Jane Shaw, whom I have raised from infancy, and who now lives with me, I give and bequeath all my property, consisting of houses and vacant lots, situate on the west side of High street, between York and Pitt streets, in the city of Baltimore, during her natural life, with remainder over to the heirs of her body, if she should have any, but, in case she should die without such heirs, then the said remainder to my cousin, Chris- tiana Snyder, widow as aforesaid, to her and her heirs forever. And I give all the residue of my property, of whatsoever name or nature, to the said Jane Shaw, without limitation or restric- tion," etc. It is conceded that the property referred to in the first of the two clauses quoted was leasehold property. Jane Shaw married William Campbell. She died in 1886 without ever having had issue. She left a last will and testament, whereby, after making small bequests to other persons, she gave the re- siduum of her estate to John W. Hughes, a grandson of her deceased husband, and she appointed him executor. He is the appellant in this case. Christiana Snyder also died, leaving a will by which she gave the residuum of her estate to her grand- children. The appellee is administrator d. b. n. c. t. a. of her estate. It has been argued that the intention of George Ackerman, apparent on the face of the will, was to give Jane Shaw merely a life-estate in the leasehold property, and that this intention must control the construction to be placed on the language used in making the bequest of that property to her. It is undoubtedly true that a testator's intention, when legally manifested, will be given effect to, unless it violates some fixed principle of law, or would, if gratified, break down some settled rule of property, or unless it be defeated by the use of technical words whose meaning, when they are found in wills, is inflexible and unvarying. For instance, no matter how clear may be the intention to create a perpetuity, it cannot be grati- fied, because forbidden by law ; and even though the intention to give but a life-estate may be perfectly evident, yet if, in attempting to create it, words have been employed which have invariably been held to carry the fee, the fee, and not a mere life-estate, will pass. There is perhaps no rule of property more deeply rooted iu the jurisprudence of this State than that which is known as the " rule in Shelley's Case." It is a rule of tenure which is not only independent of, but generally operates to subvert, the intention; and so firmly is it, with its qualifica- REMAINDER IN CHATTEL REAL — RULE IN SHELLEY'S CASE. 431 tions, established here, that, as said by this court in Shreve v. Shreve, 43 Md. 394, " nothing but an act of the legislature can strike it out of our system of real law." The definition of the rule given by Mr. Preston (1 Prest. Est. 263), adopted with slight modifications by Chancellor Kent (4 Kent Comm. 215), and quoted with approval in Ware v. Richardson, 3 Md. 544, is so familiar that it need not be repeated in this opinion. If the subject of the gift to Jane Shaw had been real estate, she would have taken, under the rule, an estate in fee-tail, which by the operation of our law of descents would have been converted into an estate in fee-simple, notwithstanding the most positive and unequivocal declaration that she should take only an estate for life. But it is supposed a different result must follow in this case because the gift relates to personal property. In support of this position, our attention has been called to the cases which hold that in respect to personal estate attention is paid to any circumstance that seems to afford ground for construing a limitation after dying without heirs or without issue to mean a dying without heirs or issue living at the death of the party, in order to support a bequest over, though as to real estate the construction is generally otherwise. Wallis v. Woodland, 32 Md. 104; Gable v. Ellender, 53 Md. 311. But the principle which strikes down, as void because too remote, a limitation in remainder after an indefinite failure of issue, is not the one upon which the rule in Shelley's Case is founded, nor upon which the decision of the case before us depends. If the rule in Shelley's Case is applicable to leasehold estates as well as to a freehold, the case is entirely free from dijEculty. In Butterfield v. Butterfield, 1 Ves. Sr. 154, the testator directed that £400 should be put on good security for his son T., that he might have the interest oif it for his life, and for the lawful heirs of bis body, and if it should so happen that he should die without heirs of his body, it should goto his youngest sonB., Lord Hardwicke held that the son T. should take the whole absolute interest. In Garth v. Baldwin, 2 Ves. Sr. 646, personal property was limited to trustees to pay the profits to Edward Turner Garth for life, and afterwards to pay the same to the heirs of his body. The lord chancellor held that the case was reduced to this : a gift of personal estate to one for life, and the heirs of his body, that must vest the property in him, whether the testator intended it or not. In Atkinson v. Hutch- inson, 3 P. Wms. 259, the lord chancellor stated that if a term of years be limited to A. for life, remainder to the heirs of his body, A. would take the whole interest. In Elton v. Eason, 19 Ves. 78, the master of the rolls said: "It is clearly settled that 432 EXECDTOKY DEVISES. a bequest of personal property to a man for life, and afterwards to the heirs of his body, is an absolute bequest to the first taker. Whatever disposition would amount to an estate-tail in land gives the whole interest in personal property, which is incapable of being entailed." And in Home v. Lyeth, 4 Har. & J. 431, which, though not a decision by the court of appeals, has been followed and approved in many cases by this court, it was dis- tinctly determined " that, if a leasehold estate is limited to one for life, the remainder to the heirs of his body, the whole inter- est vests in the first taker, and the words ' for life ' will not be sufficient to restrict his interest to a life-estate." This was recognized in Warner v. Sprigg, 62 Md. 14. It would seem, then, to be perfectly clear that the bequest to Jane Shaw is, by analogy at least, directly within the rule. The gift is of a leasehold interest to Jane Shaw during her natural life, with remainder over to the heirs of her body, if she should have any, as a class of per- sons to take in succession from generation to generation. The limitation to the heirs entitled her to the absolute interest, which, was not restricted by the words " if she should have any heirs." The second clause quoted from the will cannot afifect this con- clusion. It is claimed its provisions plainly indicate that the testator intended to give Jane Shaw only a life-estate under the first clause ; but, even if this should be conceded, the result would not be changed, because, no matter how evident the intention to create but a life-estate may be, when the words actually used bring the gift within the rule the intention must give way, and the fixed rule must be followed. Accordingly, Hughes, who claims under the will of Jane Shaw, is entitled to the estate, and the funds brought into court, being the rent due by the lessee of the term, are payable to the appellant. There was error, therefore, in the decree below, which denied the appellant's right to these funds, and it must be reversed. The cause will be remanded, that a decree may be passed in con- formity with this opinion. POWERS DISTINGUISHED FROM ESTATES. 433 CHAPTEE XV. POWERS OF APPOINTMENT. Potter «. Couch, 141 U. S. 296. Mut. Life Ins. Co. v. Shipman, 119 N. Y. 824; 24 N. B. 177. Bower v. Chase, 94 U. S. 812 (1876). Powers Distin^uislied from Estates — Devise to Executors to Sell. Potter V. Couch, 141 XT. S. 296. Appeals from the circuit court of the United States for the northern district of Illinois. These were appeals from a decree in equity by various persons asserting claims to the real estate devised by Ira Couch, who died January 28, 1857, to his brother, James, and to his nephew, Ira, by his will dated November 12, 1855, and duly admitted to probate March 21, 1857, by which he appointed his wife, Caroline E. Couch, his brother, James Couch, and his brother-in-law, William H. Wood, executors and trustees, and devised and bequethed all his property, real and personal, to them in trust for the term of 20 years, and for certain uses and purposes ; and then (after payment of debts and legacies), in equal fourths, to his wife, to his daughter and her children, to his brother, James, and to his nephew, Ira, the son of James, with devises over in case of alienation. The material provisions of the will are copied or stated in the margin ; and so much of the facts as is necessary to the understanding of the questions of law decided was as follows : — It was contended by some of the parties that the real estate devised by this will was owned jointly by the testator and his brother, James. But upon the whole evidence it clearly appeared that although James lived with the testator, and helped him in his business, they were not partners, and, as James knew, all the real estate was bought and paid for by the testator out of his own money, and the deeds were taken in his name. The property belonged to the testator; and James had no title in it, legal or equitable, except under the will. Caroline E. Couch, the testator's daughter, was married January 28, 1867, to George B. Johnson, having before her marriage, and by in- denture with the trustees named in the will, appointed them to be trustees for the benefit of herself and her children under the twen- tieth clause of the will, Three children of this marriage were 28 434 POWERS OP APPOINTMENT. born before 1877. The testator left real estate worth about $1,000,000, consisting of nine lots of land in the heart of the city of Chicago, on two of which stood the Tremont House ; and left personal property to the amount of $11,000; and owed debts amounting to $112,000, besides unpaid taxes on real estate. The trustees under the will — Woods collecting the rents and having the principal management — improved the real estate, so as to produce a large net income, until the great fire of October, 1871, destroyed all the buildings. In 1872 and 1873 the trustees erected new buildings on the property at an expense of $1,000,- 000, of which they borrowed $750,000 on mortgage executed by the trustees, as well as by the widow, James, Ira, and the daugh- ter and her husband, individually, of all the nine lots, payable November 1, 1877, with yearly interest at 8 per cent. On the completion of the new Tremont House, the trustees being unable to find any person, not interested in the estate, who would under- take to pay a fair rent and provide the necessary furniture, a lease thereof was made on November 15, 1873, hy the widow, James Couch, and William H. Wood, as trustees under the will and as trustees of the daughter, and by the widow, James, Ira, and the daughter and her husband, individually, for 10 years to James Couch, who agreed to furnish it and carry it on as an hotel, and to pay one-tenth of the gross amount of his receipts therefrom until February 1, 1877, to the widow and Wood as joint trustees with himself under the will, and after that date to pay to the widow, to Ira, and to the daughter's trustees three-fourths of such tenth, retaining the other fourth himself. James Couch carried on the hotel accordingly, but unsuccessfully, until Janu- ary 18, 1879, when his lease was terminated, and the hotel was leased to another person. In December, 1876, the mortgagee agreed with the trustees named in the will to extend the term of payment of the principal of the mortgage debt, and to reduce the rate of interest, provided the whole estate should continue to be managed as before, and Wood should remain in the principal charge and control thereof. On January 8, 1877, James Couch and wife, the testator's widow, the daughter and her hus- band, and Ira and his wife, in their individual names, and the widow, James Couch, and William H. Wood, as trustees of the daughter, executed and delivered to Wood, a power of attorney, containing these recitals: "Whereas by the will of Ira Couch, deceased, all of his estate, both real and personal, was devised and bequeathed to James Couch, Caroline E. Couch, and William H. Wood, in trust, for the period of twenty years from the time of his death, which period POWERS DISTINGUISHED FROM ESTATES. 435 -will expire the twenty-eighth day of January, 1877, and upon the termination of said trust to the said James Oouch, and Caroline E. Couch, and to Ira Couch, son of said James Couch, and Caroline E. Johnson, daughter of said testator and now the wife of George B. Johnson, one-fourth thereof to each of said devisees; " «* and whereas, the said Car- oline E. Johnson did, prior to her marriage, and pursuant to the provisions of said will, by her deed of trust appoint the said James Couch, Caroline E. Couch, and William H. Wood trustees of all her share and interest in said estate ; and whereas, by reason of the destruction of the buildings belonging to said €state, and situate upon said lands, by fire, the said trustees under said will have, as such trustees, incurred a large indebted- ness in rebuilding the same, and for other purposes beneficial to isaid estate, and which indebtedness is a lien or incumbrance thereon ; and whereas, it is deemed advantageous to the under- signed, devisees as aforesaid, as well as to the creditors of said «state, that the same should, from the time of the expiration of said period of twenty years, be managed as a whole by some person appointed and agreed upon by the parties interested, to the end that sales of said estate, or parts thereof, may be made from time to time to meet the said indebtedness, that said estate may in the meantime be kept rented, and the income therefrom applied to the payment of the interest on indebtedness, the taxes, premiums on insurance, and the expenses for repairs, and for the management of the estate." This power accordingly authorized Wood, on and after January 28, 1877, to enter upon and take possession of all the real estate devised ; to rent it, and to collect the rents and also all arrears of the rent under leases made by the trustees under the will ; to pay taxes and assessments, and the interests and principal of debts against the estate, and all expenses of repairs, preservation, and management thereof, and to borrow money when necessary for these purposes, and to sell and convey the whole or any part of the estate whenever and upon such terms as in his judgment should be for the best in- terest of the constituents ; and provided that it should be irre- vocable, except that after January 28, 1880, a majority of them, or, on giving six months' notice in writing, any one of them, might " revoke this power of attorney and annul this agree- ment." By reason of the embarrassment caused by the financial panic of 1873, the real estate depreciated in value, so that it was worth less than the sum due on the mortgage, and during the years 1876, 1877, and 1878 the income was insufficient to pay the interest on mortgage debt, taxes, insurance, and expenses. 436 POWERS OF APPOINTMKNT. The estate afterwards increased in value until 1884, when the in- come had become sufficient to pay annual expenses and interest and a large part of the principal. The testator's debts, and the legacies given by the twelfth and thirteenth clauses of the will, as well as the annuities to the testator's sister and to his mother- in-law under the seventh and eight clauses, were all duly paid before 1877 ; those annuitants having died before that time. The annuities to his widow and daughter under the tenth clause were paid until the fire of October, 1871, but were not paid in full afterwards ; and his brother, James, was paid more than his share of the income under the eleventh clause. The estate was never divided by the executors among the devisees of the residue, because of the impossibility of making partition of the most valuable lots, or of selling them, except at a great sacrifice. On February 15, 1879, judgments to the amount of $6,000 were recovered against James Couch, in a court of the State of Illinois, on debts contracted since January 28, 1877, and executions thereon were forthwith taken out and returned unsatisfied. On February 24, 1879, one Sprague, who recovered two of those judgments, amounting to $1,097.85, brought a suit in equity in that court, upon which a receiver was appointed, to whom, by order of that court, on March 29, 1879, James Couch executed a deed of all property, equitable interests, things in action, and effects belonging to him. In 1881 and 1882, James Couch's undivided fourth of the real estate devised was levied on and sold by the sheriff on pluries executions issued on Sprague's judgments at law. On May 10, 1879, one Brown, as trustee for Howard Potter, recovered judgment in the circuit court of the United States against James Couch for $15,038.92 on a debt contracted in 1874, and in 1881 caused an alias execution thereon to be levied on the same undivided fourth, and purchased the same at the marshal's sale on execution. On February 9, 1881, James Couch and Elizabeth G. Couch, his wife, executed a deed of all their interest in that fourth to William E. Hale, expressed to be for a nominal consideration, but the real consideration for which was a contemporanous agreement between the wife and Hale, by which Hale agreed to buy up the judgments existing against James Couch, and to sell the interest conveyed to him by the deed, and, after reimbursing himself for his expenses, to pay one-half of the proceeds to her, and hold the other half to his own use. Hale bought up the judgments recovered February 15, 1879, being about one-third of the judgments against Couch, as well as the title under the sheriff's sale aforesaid; but on November 16, 1882, sold them agaia to Potter, and never POWERS BISTINQDISHED FROM ESTATES. 437 bought up any of Potter's claims, or paid anything to Elizabeth G. Couch. Ira Couch, the testator's nephew,cameof age January 9, 1869, and never had any children. His interest in the estate of the tes- tator was conveyed by him, being insolvent, on January 29, 1877, to one Dupee, as a trustee for his creditors, with authority to sell at private sale; by Dupee, on November 26, 1881, to one Everett, in consideration of the sum $1,000 paid by Eliza- beth G. Couch, mother of Ira; by Everett, on November 28, 1881, to her; and by her, on February 28, 1886, back to Ira. On March 9, 1885, Caroline E. Johnson, the testator's daughter, conveyed to her husband all right, title, and in- terest she might or could have in real estate under the nineteenth clause of the will. On July 5, 1885, she died, leaving her husband and three children surviving her. On July 14, 1884, James Couch, Caroline E. Couch, and William H. Wood, being the executors and trustees, and the first two of them devisees named in the will, filed a bill in equity in the State court to obtain a construction thereof, to which Caro- line E. Johnson and her husband and children, Elizabeth G. Conch, Potter, Hale, Ira Couch, the judgment creditors of James Couch, and the receiver appointed in Sprague's suit in equity, were made parties. On August 4, 1884, Potter filed in the cir- cuit court of the United States a bill for partition of the real estate of the testator, making all other parties interested defend- ants. On October 23, 1884, the bill for the construction of the will, and on May 15, 1885, the bill of Sprague, were removed into that court. On August 3, 1885, these three causes were consolidated by order of the court ; and on November 18, 1887, after the various parties had filed answers stating their claims, it was ordered that each answer might be taken and considered as a cross bill. No question was made as to the share devised to the wife by the second clause, or as to the share devised to the daughter and her children by the third and twentieth clauses of the will. The claims to the various parties to the shares devised to the testa- tor's brother, James, by the fourth clause, and to the testator's nephew, Ira, by the fifth clause, were as follows : Potter claimed the share of James under the judgments and the sales on execu- tion against him. Hale claimed the same share under the deed to him from James and wife. James claimed his share under the fourth clause of the will. Ira claimed his share under the fifth clause ; and also claimed the share of James, on the ground that, by reason of the alienations thereof to Potter and to Hale, the devise over in the nineteenth clause to his 438 POWERS OF APPOINTMENT. children took effect. The daughter's husband and her children* respectively, claimed the shares of both James and Ira, contend- ing that, by reason of the alienations thereof, they vested, under the ultimate devise over in the nineteenth clause, in the daughter and her heirs ; the husband claiming under his wife's deed to him, and the children claiming under the twentieth clause of the will by reason of her death. By the decree it was declared that the devised estate vested, at the expiration of 20 years, from the testator's death, one-fourth in fee in the widow, one-fourth in fee in James, one-fourth in fee in Ira, and the remaining fourth in the daughter for life, with remainder in fee to her children ; and the claims of Potter, of Hale, and of the daughter's husband and children to the shares of James and Ira^ and of Ira to the share of James, were disallowed. Potter, Hale, the daughter's husband, and her children, respectively, appealed from the disallowance of their claims; and James Couch appealed from so much of the decree as declared that legal title under the residuary devises vested at the expiration of 20 years from the testator's death. The five appeals were submitted together on printed briefs and arguments. Mr. Justice Gray, after stating the facts as above, delivered the opinion of the court. The matters in controversy concern those shares only of Ira Couch's real estate which he devised to his brother, James, and to his nephew, Ira, the son of James. 1. In order to ascertain the nature and the time of vesting of their interests, it is important, in the first place, to determine the extent and duration of the trust-estate of the executors and trustees named in the will, bearing in mind the settled rule that whether trustees take an estate in fee depends upon the require- ments of the trust, and not upon the insertion of words of inher- itance. Doe V. Cosidine, 6 Wall. 458; Young v. Bradley, 101 U. S. 782 ; Kirkland v. Cox, 94 111. 400. In the first clause of the will the testator appoints his wife, his brother, James, and his brother-in-law. Wood, " executors and trustees " of his will, and devises and bequeaths to them all his estate, real and per- sonal, " for the term of twenty years, in trust, and for the uses and objects and purposes hereinafter mentioned and expressed, and for the purpose of enabling them more fully to carry into effect the provisions of this will, and for no other use, pur- pose, or object;" authorizes them to lease his real estate at their discretion, and, out of any surplus funds, to improve his real estate, to purchase other real estate to be held upon the same trust, and to lend money on bond and mortgage ; but, in order that their doings may not create any obstacle to the division of POWERS DISTINGUISHED FROM ESTATES. 439 his real estate at the end of the 20 years, provides that they shall not make leases, or lend money on mortgage, beyond 20 years, or purchase or improve by building after 16 years from his death ; and he also authorizes them to mortgage real estate for the purpose of rebuilding in case of destruction by the elements. In the next four clauses he devises and bequeaths to his widow, daughter, brother, and nephew, respectively, " after the expir- ation of the trust-estate vested in my executors and trustees for the term of twenty years after my decease," one-fourth part of all his estate, both real and personal, after payment of debts and legacies, which he charges upon the real estate. In the eleventh clause, he directs his executors to pay to his brother a certain part of the income " until the final division of my estate, which shall take place at the end of twenty years after my decease, and not sooner." And in the twenty-first clause he declares his wish that Wood shall collect the rents and have the general care and supervision of the affairs of the estate during the same period. These provisions, had the testator said nothing more upon the subject, might have been construed as assuming or implying that the trust-estate was to termi- nate at the end of 20 years from the testator's death, without any act of conveyance on the part of the trustees. But the will contains other provisions concerning the powers and duties of the trustees, which are wholly inconsistent with such a con- clusion. The sixteenth clause is as follows : "I will and direct that no part of my estate, neither the real nor the personal, shall be sold, mortgaged (except for building), or in any manner incum- bered until the end of twenty years from and after my decease, when it may be divided or sold for the purpose of making a divis- ion between my devisees as herein directed." The very object of this clause is to define when and for what purposes the trus- tees may mortgage or may sell the real estate. Before the end of 20 years it is neither to be mortgaged ( except for building, as allowed in the first clause) nor to be sold. At the end of 20 years all authority to mortgage it is to cease, but " it may be divided or sold for the purpose of making a division between my devisees as herein directed." This division or sale (like all sales or mortgages spoken of in this clause) is evidently one to be made by the trustees under authority derived from the testator, and while the legal title remains in them ; not a judicial division or sale for the purpose of partition after the legal title has passed to the residuary devisees. Again, in the eighteenth clause the testator directs that, in the event of any of the legatees or annuitants being alive at the end of 20 years 440 POWERS OF APPOINTMENT. after his death, there shall be a division of all of his estate at that time, " anything herein contained to the contrary notwith- standing ;" and that " in such case my executors, in making division of the said estate, shall apportion each legacy or annuity on the estate assigned to my devisees, who are hereby charged with the payment of the same according to the apportionment of my said executors." This clause puts beyond doubt the inten- tion of the testator, not only that the division of his estate, and the assignment and conveyance of the several shares to each devisee, shall be made by his executors, but that the question which share shall be charged with the payment of any legacy or annuity shall depend upon the act of the executors in making the division among the devisees. Although, at the expiration of 20 years from the testator's death, all the legacies and annuities to others than the residuary devisees had in fact been paid, yet the duty still remained in the executors and trustees to make a divis- ion, by sale if necessary. Under the circumstances of this case, it was impracticable to make the division, either by the partition of the lands themselves, or by selling them and distributing the proceeds, immediately upon the expiration of the 20 years; and until a division was made, in one form or the other, by the exec- utors and trustees, the legal title must remain in them. The sale and conveyance by them, whether directly to the residuary devisees, or to the third persons for the purpose of paying the proceeds to those devisees, was not in the exercise of a power over an estate vested in other persons, but was for the purpose of terminating an estate vested in the execu- tors and trustees themselves, by conveying it to others. The twentieth clause, by which the daughter's share, in case of her marriage, is to be conveyed at the expiration of the twenty years, by the trustees named in the will, to trustees for the benefit of herself and her children; and the twenty-second clause, by which the share of the widow, in case of her marrying again, is to be held by the executors and trustees in trust for her, — are also worthy of notice in this connection, although they might not, standing alone, afi'ect the time of vesting of the legal title in the shares of the brother and the nephew. Wellford v. Snyder, 137 U. S. 521; llSup. Ct.Eep. 183. There can be no doubt that all the powers conferred, and all the trusts imposed, were annexed to the office of executors, and not to a distinct office of trustees. And, taking the whole will together, it is quite clear that the legal title of the executors and trustees did not absolutely terminate upon the expiration of twenty years from the death of the testator, because it was neces- sary for the purpose of enabling them to execute the trusts, and POWEES DISTINGUISHED FROM ESTATES. 441 to carry out the provisions of the will, that the legal title should be and continue in them until they had, by sale or otherwise, settled the estate, and conveyed to the devisees severally their shares in the estate or its proceeds. The testator doubtless in- tended that after the expiration of the twenty years the estate should cease to be held and managed by his executors and trus- tees as a whole, and should be divided into four parts to be held in severalty by or for his residuary devisees. But he intended, and expressly provided, that the division should be made by hia execiitors and trustees ; and therefore their trust estate could not terminate until they had made the division aud conveyed the shares. McArthur v. Scott, 113 U. S. 340, 377; 5 Sup. Ct. Rep. 652; Kirkland v. Cox, 94 111. 400; Perry Trusts, §§ 305, 315, 320. Whether, in case of unreasonable delay on their part to make the division, a court of equity might have compelled them to do so, is a question not presented by this record. The decision of the Supreme Court of Illinois in Kirkland v. Cox, above cited, is much in point. In that case the testator devised and bequeathed all his estate, real and personal, to trus- tees, to control and manage it, and to make such disposition of it aa should in their judgment increase its value; to pay to his daughter such installments as they should deem sufficient for her support until she reached the age of 35 years, and then to con- vey the estate to her in fee; authorizing them, however, if she should be then married to a man whom they thought unworthy, to continue to hold the title in trust during his life ; and further providing that, if she died without issue, the whole estate, after paying certain legacies, should " be divided equally between " three charitable corporations. It was held that the powers con- ferred on the trustees implied a power to sell the lands, and convert them into money or interest-bearing securities, and, therefore, that the trustees took and held the title in fee-simple, notwithstanding the death of the daughter before reaching the age of 35 years ; the court saying : " The power implied to sell is to sell the whole title, and to this essential the power to convey that title, requiring as a condition precedent, a fee-simple estate in the trustees. The property is devised to the trustees to sell and convey if they deem it advisable, or to hold and con- trol until it is to be transferred as directed; and in the contin- gency that has arisen it was intended that it should be the duty of the trustees to make the equal division of the property be- tween the corporations designated and convey it accordingly ; for the grant to these corporations is in severalty, and not as ten- ants in common, aud their title must necessarily rest on the con- veyance of the trustees." 94 111. 415. The cases cited against 442 POWERS OF APPOINTMENT, this conclusion differ widely from the case at bar. The two most relied on were Minors v. Battison, L. E. 1 App. Cas. 428, in which the facts were very peculiar, and there was much diversity of opinion among the judges before whom it was successively brought; and Manice v. Manice, 43 N. Y. 303, in which the construction adopted was the only one consistent with the valid- ity of the will under the statutes of New York. 2. From this view of the nature and duration of the estate of the trustees, it necessarily follows that by the terms of the fourth and fifth clauses of the will, devising and bequeathing to the testator's brother and nephew, respec- tively, " after the expiration of the trust-estate vessted in my executors and trustees," "one-fourth part of all my estate,, both real and personal" (after the payment of debts and legacies, which he charged upon the real estate), no legal title in any specific part of the estate, and no right of possession, vested in either of them until the trustees had divided the estate, and coveyed to each of them one-fourth of the estate, or of the pro- ceeds of its sale ; but, on well-settled principles, an equitable estate in fee in one-fourth of the residue of the testator's whole property vested in the brother and in the nephew, respectively, from the death of the testator. Cropley v. Cooper, 19 WalL 167; McArthur w. Scott, 113 U. S. 340, 378, 380; 5 Sup. Ct. Eep. 652; Phippsv. Ackers, 9 Clark &F. 583; Weston w. Wes- ton, 125 Mass. 268 ; Nicoli v. Scott, 99 111. 529; Scofield v. 01- cott, 120 111. 362 ; 11 N. E. Eep. 351. To the suggestion that the will violated the rule against perpetuities, which prohibits the tying up of property beyond a life or lives in being and 21 years afterwards, it is a sufficient answer that after 20 years from the death of the testator, and after the death of the widow and daughter (if not before), the title, legal and equitable, in the whole estate would be vested in persons capable of conveying it. Waldo v. Cummings, 45 111. 421 ; Lunt v. Lunt. 108 111. 307. 3. Nor is the estate of the residuary devisees affected by the nineteenth clause of the will, which is in these words: " It is my will that my trustees aforesaid shall pay the several gifts, legacies, annuities and charges herein to the persons named in this will, and that no creditors or assignees or purchasers shall be entitled to any part of the bounty or bounties in- tended to be given by me herein for the personal advantage of the persons named; and therefore it is my will that, if either of the devisees or legatees named in my will shall in any way or manner cease to be personally entitled to the legacy or devise made by me for his or her benefit, the share intended for such devisee or legatee shall go to his or her children, in the same POWERS DISTINGUISHED FROM ESTATES. 443 manner as if such child or children bad actually inherited the same; and in the event of such person or persons having no children, then to my daughter and her heirs." The devise over in this clause cannot, indeed, by reason of the words, "gifts, legacies, annuities, and charges," and " bounty or bounties," in the preamble, be confined to the legacies and annuities given by the testator and charged on his real estate, by clauses 6 to 13, inclusive, and by clause 18. So to hold would be utterly to dis- regard the comprehensive and decisive words, " devisees or leg- atees," " legacy or devise," and "share intended for such de- visee or legatee," by which the testator clearly manifests his intention that the devise over shall attach to the shares of his real estate devised to his widow, daughter, brother, and nephew, respectively, by clauses 2, 3, 4, and 5, except so far as its effect upon the shares of the daughter and the widow may be modified by the trust created for their benefit by clauses 20 and 22. The testator having declared his will that the devises of the shares shall be " for the personal advantage of" the devisees and that "no creditors or assignees or pur- chasers shall be entitled to any part," and having directed the devise over to take effect " if either of the devisees shall in any way or manner cease to be personally entitled to the devise made for his benefit,' ' the devise over of the shares of the brother and the nephew, if valid, would take effect upon any alienation by the first devisee, whether voluntary or involuntary, by sale and conveyance, by levy of execution, by adjudication of bank- ruptcy, or otherwise; or, at least, upon any such alienation before his vested equitable estate became a legal estate after the expirationof the 20 years. But the right of alienation is an inherent and inseparable quality of an estate in fee-simple. In a devise of land in fee-simple, therefore, a condition against all alienation is void, because repugnant to the estate devised. Co. Litt., § 360 ; Id. 2066, 223a; 4 Kent. Comm. 131; McDonough v. Mur- doch, 15 How. 367, 373, 375, 412. For the same reason a lim- itation over, in case the first devisee shall aliene, is equally void, whether the estate be legal or equitable. Howard v. Carusi, 109 U. S. 725 ; 3 Sup. Ct. Kep. 575 ; Ware v. Cann, 10 Barn. & C. 433 ; Shaw v. Ford, 7 Ch. Div. 669; In re Dugdale, 38 Ch. Div. 176; Corbett v. Corbett, 13 Prob. Div. 136 ; Steibw. Whitehead, 111 III. 247, 251; Kelley v. Meins, 135 Mass. 231, and cases there cited. And on principle and according to the weight of authority (notwithstanding opposing dicta Cowell v. Springs Co., 100 U. S. 55, 57, and in other books), a restriction whether by way of condition or devise over, on any and all alienation, although for a limited time, of an estate in 444 POWERS OF APPOINTMENT. fee, is likewise void, as repugnant to the estate devised to the first taker, by depriving him during that time of the inherent power of alienation. Koosevelt v. Thurman, 1 Johns. Ch, 220; Mandlebaum v. McDonell, 29 Mich. 78; Anderson v. Gary, 36 Ohio St. 506 ; Twitty v. Camp, Phil. Eq. 61 ; In re Rosher, 26 Ch. Div. 801. The cases most relied on, as tending to support a different conclusion, are two decisions of this court, not upon devises of real estate, but upon peculiar bequests of slaves, at times and places at which they were considered personal property. Smith V. Bell, 6 Pet. 68; Williams v. Ash, 1 How. 1. In Smith v. Bell the general doctrine was not denied; and the decision turned upon the construction of the words of a will by which a Virginia testator bequeathed all his personal estate (consisting mostly of slaves) to his wife, " to and for her own use and benefit and dis- posal absolutely; the remainder of said estate, after her decease, to be for the use of " his son. This was held to give the son a vested remainder, upon grounds summed up in two passages of the opinion, delivered by Chief Justice Marshall, as follows : " The limitation in remainder shows that, in the opinion of the testator, the previous words had given only an estate for life. This was the sense in which he used them." 6 Pet. 76. " The limitation to the son on the death of the wife restrains and lim- its the preceding words so as to confine the power of abso- lute disposition, which they purport to confer, of the slaves, to such a disposition of them as may be made by a person having only a life estate in them." 6 Pet. 84. In Williams v. Ash, a Maryland testatrix bequeathed to her nephew all her negro slaves, naming them, *' provided he shall not carry them out of the State of Maryland, or sell them to any one ; in either of which events I will and devise the said negroes to be free for life." One of the slaves was sold by the nephew, and, upon petition against the purchaser, was adjudged to be free. As stated by Chief Justice Taney, in delivering the opinion of the court, and recognized in the statute of Mary- land of 1809, c. 171, therein cited: "By the laws of Maryland as they stood at the date of this will, and at the time of the death of the testatrix, any person might, by deed or last will and testa- ment, declare his slave to be free after any given period of service, or at any particular age or upon the performance of any condition, or on the event of any contingency." 1 How. 13 ; 3 Kilty's Laws. The condition or contingency, forbidding the slaves to be sold or carried out of the State, was, as applied to that peculiar kind of property, a humane and reasonable one. The decision really turned upon the local law, and appears to POWERS DISTINGUISHED FROM ESTATES. 445 have been so understood by the court of appeals of the State in Steuart v. Williams, 3 Md. 425. Chief Justice Taney, indeed, going beyond what was needful for the ascertainment of the rights of the parties, added: "But if, instead of giving free- dom to the slave, he had been bequeathed to some third person, in the event of his being sold or removed out of the state by the first taker, it is evident upon common-law principles that the limitation over would have been good;" citing Doe v. Hawke, 2 East, 481. But the case cited concerned an assignment of a leasehold interest only, and turned upon the construction of its particular words, no question of the validity of the restriction upon alienation being suggested by counsel or considered by the court ; and the dictum of Chief Justice Taney, if applied to a conditional limitation to take effect on any and all alienation, and attached to a bequest of the entire interest, legal, or equitable, even in personalty, is clearly contrary to the au- thorities. Bradley v. Peixoto, 3 Ves. 324; Tud. Lead. Cas. Eeal Prop. (3d Ed.) 968, and note, In re Dugdale, 38 Ch. Div. 176 ; Corbett v. Corbett, 13 Prob. Div. 136 ; Steib v. White- head, 111 111. 247, 251; Lovett v. Gillender, 35 N. Y. 617. The case at bar presents no question of the validity of a pro- viso that income bequeathed to a person for life shall not be liable for his debts, such as was discussed in Nichols v. Levy, 5 Wall. 433 ; in Nicholas v. Eaton, 91 U. S. 716, and in Spindle V. Shreve, 111 U. S. 542 ; 4 Sup. Ct. Eep. 522. In Steib v. Whitehead, above cited, the Supreme Court of Illinois, while upholding the validity of such a proviso, said : " We fully recog- nize the general proposition that one cannot make an absolute gift or other disposition of property, particularly an estate in fee, and yet at the same time impose such restrictions and limit- ations upon its use and enjoyment as to defeat the object of the gift itself; for that would be, in effect, to give and not to give, in the same breath. Nor do we at all question the general principle that, upon the absolute transfer of an es- tate, the grantor cannot, by any restrictions or limitations con- tained in the instrument of transfer, defeat or annul the legal consequences which the law annexes to the estate thus trans- ferred. If, for instance, upon the transfer of an estate in fee, the conveyance should provide that the estate thereby conveyed should not be subject to dower or curtesy, or that it should not descend to the heirs general of the grantee upon his dying intes- tate, or that the grantee should have no power of disposition over it, the provision, in either of these cases, would clearly be inoperative and void, because the act or thing forbidden is a right or incident which the law annexes to every estate in fee-simple, 446 POWERS OF APPOINTMENT. and to give efPect to such provisions would be simply permitting individuals to abrogate and annul the law of the State by mere private contract. This cannot be done." 111111.251. The re- straint sought to be imposed by the nineteenth clause upon any alienation by the brother or by the nephew of the share devised to him in fee being void for repugnancy, it follows that upon such alienation, or upon an attempt to alienate, his estate was not defeated, and no title passed, under the devise over, either to the nephew in the share of the brother, or to the daughter or her children in the share of the brother or of the nephew ; and there- fore nothing passed by the daughter's deed to her husband. For the reasons already stated, the appeal of the nephew, Ira Couch, from so much of the decree below as declared the legal title under the residuary devises to have vested at the expiration of 20 years from the testator's death, is well taken ; and the equitable estate in fee in one-fourth of the residue of the testator's prop- erty, having vested in Ira Couch from the death of the testator, passed by his deed of assignment to Dupee, and by mesne con- veyances back to him. The various alienations of the share of the brother, James Conch, require more consideration. 4. The appellant Potter claims the share of James Couch under proceedings against him by his creditors, at law and in equity, the effect of which depends upon the statutes of Illinois. As we have already seen, the legal title in fee was vested in the trustees, not under a passive, simple, or dry trust, with no duty except to convey to the persons ultimately entitled, but under an active trust, requiring the continuance of the legal title in the trustees to enable them to perform their duties; and until the trustees had divided the property, either by conveying the lands to the resid- uary devisees, or by selling them, and distributing the proceeds among those devisees, James Couch had only an equitable inter- est in the testator's whole estate, and no title in any specific part of his property, real or personal. Such being the facts it is quite clear that the trust was not executed, so as to vest the legal title in him, by the statute of uses of Illinois. Kurd's Eev. St. 1874, c. 30, § 3; Meacham v. Steel, 93 111. 135; Kellogg v. Hale, 108 111. 164. It is equally clear that such an equitable interest was not an estate on which a judgment at law would be a lien, or an execution at law could be levied, under the Illinois statute of judgments and exe- cutions, although the term " real estate," as used in that statute, is declared to include " lands, tenements, hereditaments, and all legal and equitable rights and interests therein and thereto." Kurd's Rev. St., c. 77, §§ 1, 3, 10; Brandies v. Cochrane, 112 U. S. 344; 5 Sup. Ct. Eep. 194; Baker v. Copenbarger, 15 111. POWERS DISTINGUISHED PKOM ESTATES. 447 103; Thomas v. Eckard, 88 111. 593 ; Haward v. Peavey, 128 111. 430; 21 N. E. Rep. 203. By the chancery act of Illinois, " whenever an execution shall have been issued against the property of a defendant, on a judgment at law or equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant and any other person, to compel the discovery of any property or thing in action belonging to the defendant, and of any property, money, or thing in action due to him or held in trust for him, and to prevent the transfer of any such property, money, or thing in action, or the payment or delivery thereof, to the defendant, except when such trust has in good faith been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself." Kurd's Eev. St., c. 22, § 49. This statute, as has been adjudged by this court, establishes a rule of property, and not of pro- cedure only, and applies to all cases where the creditor or his representative is obliged, by the nature of the interest sought to be reached, to resort to a court of equity for relief, as he must do in all cases where the legal title is in trustees, for the purpose of serving the requirements of an active trust, and where, con- sequently, the creditor has no lien, and can acquire none, at law, but obtains one only by filing a bill in equity for that purpose. The words "in trust," as used in the exception or proviso, can- not have a more restricted meaning than the same words in the enacting clause. Spindle w. Shreve, 111 U. S. 542, 546, 547; 4 Sup. Ct. Eep. 522; Williams v. Thorn, 70 N. Y. 270, 277; Hardenburgh v. Blair, 30 N. J. Eq. 645, 666. As the only title of James Couch in the property devised was an equitable inter- est, which could not lawfully have been taken on execution at law against him, and as the trust was an active trust, " in good faith created by," and " the fund so held in trust proceeded from," the testator, " a person other than the defendant him- self," the letter and the spirit of the statute alike require that this equitable interest should not be charged for his debts. It follows that neither the judgments and executions at law nor the suits in equity against James Couch gave any lien or title to his creditors; and that the deed from him to a receiver was wrongly ordered by the State court in which one of the suits was com- menced, and was rightly set aside by the circuit court since the removal of that suit. 5. The appellant Hale claims the share of James Couch under a deed from him and his wife. The interest con- veyed by that deed being an equitable interest only. Hale requires the aid of a court of equity to perfect his title, and 448 POWERS OF APPOINTMENT. would have to seek it by cross bill but for the order of the oir- cuit court that each answer should be taken as a cross bill. The real consideration of that conveyance was an agreement by which Hale promised to buy up the existing judgments against James Couch, to sell the interest conveyed by the deed of James and wife, and to pay the wife one-half of the net proceeds. In fact he bought up some of the judgments only, and sold those again, and never performed his agreement in this or any other particular. Consequently he is not entitled to the affirmative interposition of a court of equity to obtain the interest included in the deed. Towle v. Ambs, 123 111. 410 ; 14 N. E. Eep. 689. 6. It remains only to consider the contention that by the instrument of January 8, 1877, the devisees entered into an agreement by which they took the whole estate as tenants in common, and rendered any division unnecessary; and therefore all the duties of the trustees ended, and the legal title vested in the residuary devisees, at the expiration of 20 years. Undoubt- edly, those interested in property held in trust, and ultimately entitled to the entire proceeds, may elect to take the property in its then condition, and to hold it as tenants in common; but the acts showing an intention so to take must be unequivocal, and must be concurred in by all the parties interested. Young v. Brad- ley, 101 U. S. 782 ; Baker v. Copenbarger, 15 111. 103 ; Ridgeway v. Underwood, 67111. 419; IJarm. Wills (4th Ed.), 598-602. In the present case the instrument in question cannot have this effect, for two reasons. In the first place, it manifested no in- tention to alter in any way the existing titles of the residuary devisees, either as being legal or equitable, or as being in sev- realty or in common, but was simply a power of attorney, the object of which was to continue Wood's management of the estate as a whole, as under the twenty-first clause of the will. In the next place, the instrument was not executed bv or in be- half of all the parties in interest, inasmuch as it was not exe- cuted by any one authorized to affect the share devised for the daughter's benefit for life, and to her children or appointees after her death. By the clear terms of the twentieth clause of the will, neither the daughter nor her husband had any authority to do this, and her trustees had ho power over her share until it had been conveyed or set apart to them by the trustees under the will ; and, if the trustees under the will were duly consti- tuted trustees for her and for her children (which is disputed), they had no greater power in this respect, before the estate was divided, than distinct trustees would have had. The result is that the decree of the circuit court must be affirmed in all respects, except that the declaration therein as to POWERS DISTINGUISHED FROM ESTATES. 449 the time when the legal estate of the residuary devisees vested must be modified in accordance with the opinion of this court. This conclusion, by which the brother and the nephew take the shares, originally devised to them, carries out the Intention of the testator, though probably not by the same steps that he con- templated. Decree accordingly ; the appellants in each appeal, except James Couch, to pay one-fourth of the costs, including the cost of printing the record. Brewer and Brown, JJ., took no part in the decision of this case. Note. — " First. I do hereby give, bequeath and devise unto my beloved wife, Caroline Elizabeth Couch, and my brother, James Couch, and my brother-in-law, William H. Wood, whom I hereby constitute, make and appoint to be my executrix, ex- ecutors and trustees of this my last will and testament, and the survivors of them, and in the event of the death of either of them the successor appointed by the surviving trustee or trustees, all my estate, both real and personal, of every nature and de- scription, for the term of twenty years, in trust,'^and for the uses and objects and purposes hereinafter mentioned and expressed, and for the purpose of enabling them more fully to carry into effect the provisions of this will, and for no other use, purpose or object ; hereby giving and granting unto my said executors and trustees full power and lawful authority to lease my real estate at such time or times, and in such parcels, and in such way and manner, and upon such terms and conditions as to my said executors and trustees, or the survivors or successors of them, in their sound discretion, shall be deemed most advantageous and for the true interest of my estate ; but no lease shall be granted of any building for a longer term than five years, and all leases shall expire at the end of twenty years from the time of my death. And I do also hereby authorize and empower my said executors and trustees, and the survivor or survivors of them, and their successors, from time to time, as they in the ex- ereise of a sound discretion, shall deem for the true interest of the estate, to purchase with the surplus funds, belonging to my es- tate such real estate as they may deem proper and expedient, and take and hold the same, as such executors and trustees as aforesaid, upon the same trusts, and for the same uses and pur- poses, as the other real estate now owned by me ; and more especially to purchase for the benefit and use of my estate, when they, my said executors and trustees, or the survivors and sur- vivor of them, or successors, shall think it expedient so to do, any real estate which is or may be subject to any such judgment, de- cree, or mortgage as is or at any time hereafter may become a 29 450 POWERS OF APPOINTMENT. lien, charge, or incumbrance for my benefit, or for the benefit of my heirs or executors, upon the same, and, again, that my said executors and trustees have the like discretion to lease the same. And I do hereby authorize my said executors and trustees, if they shall think proper so to do, to loan on real estate situate in the city of Chicago any of the surplus moneys arising from my said estate, as aforesaid, on bond and mortgage ; provided, always, that such real estate shall be worth double the amount so loaned thereon, over and above any other liens and incumbrances ex- isting against the same, and that such moneys shall not be loaned for a longer period than twenty years from my decease. And, generally, I do hereby fully authorize and empower my said ex- ecutors and trustees, from time to time, to improve my real estate, and invest all surplus moneys belonging to my estate, arising from any source whatever, and not wanted immediately, or required to meet the payments and advances, legacies, an- nuities, and charges required to be made under this, my said will, in such way and manner as to them, my said execu- tors and trustees, or the survivor or successors of them, in the exercise of a sound discretion, shall be deemed most safe and productive, but no moneys are to be invested except in im- proving my real estate or in the purchase of other real estate, or on bond and mortgage as aforesaid. And I direct that my executors or trustees, or their successors, shall not purchase or improve by building upon any real estate after the expiration of sixteen years from my decease. Eelying on the fidelity and prudence of my said executors and trustees in executing the various trusts to them given and confided in and by this, my last will and testament, my executors are authorized to mortgage my real estate to improve by building on the same, only in the event of the destruction of some of my buildings by the elements, and then only to supply other buildings in the place of those de- stroyed. It is my will that all my just debts and the charges of funeral expenses be paid and discharged by my executors, as hereinafter named and appointed, out of my estate, as soon as conveniently may be after my decease, and the said debts become due ; and I leave the charge of my funeral expenses to the dis- cretion of my said executors. '^^ Second. I give, devise, and bequeath to my beloved wife, Caroline Elizabeth Couch, after the expiration of the trust- estate vested in my executors and trustees for the term of twenty years after my decease, one-fourth part of all my estate, both real and personal, after the payment of all my debts, funeral expenses, and the legacies in this will mentioned, which are hereby made a charge on said real estate, which part is to POWERS DISTINGUISHED FROM ESTATES. 451 be accepted by my said wife and received by her in lieu of dower. "Third. I give, devise, and bequeath unto my beloved daughter, Caroline Elizabeth Couch, after the expiration of the trust-estate so vested as aforesaid, one-fourth part of all my es- tate, both real and personal, after the payment of all my debts, funeral expenses, and the legacies in this will mentioned. '■^Fourth. I give, devise, and bequeath unto my brother, James Couch, after the expiration of the trust-estate so vested as aforesaid, one-fourth part of all my estate, both real and per- sonal, after the payment of all my debts, funeral expenses, and the legacies in this will mentioned. ^^ Fifth. I give, devise, and bequeath unto my nephew, Ira Couch, son of my brother, James, after the expiration of the trust-estate so vested as aforesaid, the remaining one-fourth part of all my estate, both real and personal, after the payment of all my just debts, funeral expenses, and the legacies in this will mentioned. " Sixth. I hereby will and direct that the said legacies here- inafter mentioned shall be charged on my real estate, to be paid out of the rents and profits thereof as hereinafter directed. ■5P ^ 7|r ^ flP 9|& Tf! fljc flP 9^ ^ ^ " Tenth. I give and bequeath to my wife, Caroline Elizabeth Couch, for the support of herself and daughter, from the rents of my real estate, the sum of ten thousand dollars a year until all the debts due by me are paid by my executors, and after my executors have paid such debts I give and bequeath to her for the same purpose fifteen thousand dollars a year, to be paid quarterly to her until my daughter becomes of age or is mar- ried, when my daughter may draw one-fourth of all the net rents and profits, after payment of all expenses, taxes, repairs, legacies, annuities, and other charges on my said estate; and my wife may draw ten thousand dollars a year until my nephew, Ira Couch, attains his majority, when she shall draw one-fourth of all the net rents and profits, after paying all expenses, taxes, repairs, legacies, annuities, and other charges as aforesaid. " Eleventh. I give and bequeath to my brother, James Couch, for the support of himself and family, from the rents of my real estate, the sum of ten thousand dollars a year, to be paid quar- terly until all the debts due by me are paid by my executors, and after such debts due by me are paid I give to him for the same purpose fifteen thousand dollars a year, to be paid quarterly to him until my nephew, Ira Couch, attains his majority, after which time I give to my brother, James Couch, one-fourth part of all the net rents, income, and profits of my estate, to be paid him by 452 POWERS OF APPOINTMENT. my executors quarterly uutil the final division of my estate, which shalltake place at the end of twenty years after my decease, and not sooner. *^8ixteenth. I will and direct that no part of my estate, neither the real nor the personal, shall be sold, mortgaged (ex- cept for building), or in any manner incumbered until the end of twenty years from and after my decease, when it may be divided or sold for the purposes of making a division between my devisee* as herein directed. *' Seventeenth. It is my will that any and all real estate which may hereafter be purchased by me shall be disposed of, and is hereby devised, in the same manner and to the same persons as if owned by me at the time of making this, my last will and testament. *^ Eighteenth. In the event of any of the legatees or annui- tants being alive at the end of twenty years after my decease, it is my will, and I hereby direct, that there shall be a division of all my estate, both real and personal, at the end of said twenty years, anything herein contained to the contrary notwithstand- ing ; and in such case my executors, in making division of the said estate, shall apportion each legacy or annuity on the estate assigned to my devisees, who are hereby charged with the pay- ment of the same according to the apportionment of my said executors. ^'■Nineteenth, It is my will that my trustees aforesaid shall pay the several gifts, legacies, annuities, and charges herein to the persons named in this will, and that no creditors or assignees or purchasers shall be entitled to any part of the bounty or bounties intended to be given by me herein for the personal advantage of the persons named ; and therefore it is my will that, if either of the devisees or legatees named in my will shall in any way or manner cease to be personally entitled to the legacy or devise made by me for his or her benefit, the share intended for such devisee or legatee shall go to his or her children, in the same manner as if such child or children had actually inherited the the same ; and, in the event of such person or persons having no children, then to my daughter and her heirs." " Twentieth. It is my will that the estate, both real and per- sonal, hereby devised and bequeathed to my daughter, Caroline Elizabeth, shall be vested in trustees, to be chosen by herself and my trustees herein named, before her marriage; and said trus- tees shall be three in number, to whom all her estate, both real and personal, shall be conveyed at the expiration of twenty years, the time hereinbefore specified for the termination of the POWERS DISTINGUISHED FROM ESTATES. 453 -estate of my trustees herein, to such trustees so to be appointed as aforesaid ; and it is my will that the estate, both real and personal, herein devised and bequeathed for the benefit of my daughter, shall be held by such trustees for her sole and only use and benefit, and that the same shall not in any manner be subject to the marital rights of any future husband my daughter may have, and that all moneys shall be paid by such trustees to my daughter personally, and to no other person for her, except upon her written order or assent; and it is my will that her said trustees pay to her during her life the entire net income of the estate, both real and personal, herein devised and bequeathed to my daughter, after the same shall have been conveyed to her trustees by my executors and trustees or their successors ; and after the death of my said daughter I direct that the said estate, both real and personal, shall be conveyed to the children of my daughter, and, in the event of her having no children, to such person as my daughter may direct by her last will and testament. " Twenty-first. It is my wish also, that William H. Wood, my executor and trustee, shall be charged with and take upon himself the collection of all rents accruing to my estate, and that he shall continue to perform the same dur- ing the period of twenty years after my decease ; and for the performance of this service and other services, and for his gen- eral care and supervision of the affairs of my estate, I hereby direct that the sum of two thousand dollars per annum shall be paid to him ; but in the event of his decease before entering upon said duties, or before the twenty years aforesaid shall ex- pire, or shall decline to act as in this section provided, I hereby authorize and direct my said trustees to appoint some other per- son to act in his stead in collecting said rents and performing the other duties as above specified, and to pay him the same com- pensation therefor which said Wood would have had. " Twenty-second. And, in the event of the marriage of my said wife after my decease, it is my will and I hereby authorize and direct my said trustees and executors to pay over to my said wife, and to no other person, the rents, annuities, legacies and other income herein bequeathed to my said wife, and to take her separate receipts therefor ; and it is my will that my said trus- tees and their successors, in such case, hold the same, subject to her order, in trust for my said wife, so that said property so devised and bequeathed to her as aforesaid can in no event be subject to the marital rights of such husband." 454 POWERS OF APPOINTMENT. Execution of Power by Implication. Mut. L. Ins. Co. V. Shipman, 119 N. Y. 324; 24 N. B. 177. EuGEE, C. J. Parson G. Shipman died January 18, 1871, leaving him surviving, Elizabeth L. Shipman, his widow, and seven children, and owning real estate, which he devised to his wife so long as she should remain his widow, and, upon her death or marriage, to the children born to him by her. The widow was made executrix of the will, and was authorized to make advances from the property, in her discretion, from time to time, to his several children " for maintenance and support," and was empowered to mortgage, lease, and dispose of such property for the purpose of carrying into effect the provisions of the will. In June, 1876, before disposing of the real estate, the widow married one Campbell, and was his wife at the time of the execution of the mortgages giving rise to this contro- versy. In April, 1877, the widow executed a mortgage to the Eochester Savings Bank on said real estate, in her individual name, to secure the repayment to the mortgagee of a loan of money. The mortgage contained no reference to the character of the mortgagor as executrix, or to the power to mortgage contained in the will, but appeared, on its face, to be the individual obligation of the widow. This mortgage was paid from the proceeds of a subsequent loan obtained from the plaintiff upon a mortgage of the same property; and the question in this case is whether the plaintiff, having knowledge of the purpose of the borrower, — to pay the prior loan with the moneys borrowed — had notice that such moneys were not to be used for the purposes of the will ; the accom- plishment of such purposes being the only authority under which she was by the will authorized to mortgage such real estate. It is not disputed but that the widow, upon the death of her husband, became entitled to a right of dower consummate in the real estate; and upon her marriage with Campbell, in 1876, the fee of the real estate vested in the children, subject to the ex- ecution of the power, and also subject to the right of dower. It was also established by the proof that both mortgage loans were, in fact, made for the benefit of Campbell, the widow's second husband, and not for any purpose of the will. The ques- tion in the case is, therefore, whether the interest attempted to be transferred by the first mortgage is ascribable to the power conferred by the will to mortgage the whole estate, or must be restricted to the individual interest which the mortgagor had as EXECDTION OF POWEE BY IMPLICATION. 455 dowress in such lands. In the absence of the provision con- tained in the chapter of the Kevised Statutes relating to powers, there could, we think, be but little doubt that it would be held to convey only such interest as the mortgagor possessed in her in- dividual right. It is said by Perry, in his work on Trusts (sec- tion 511), that, " if a donee of a power to sell land have also an interest in bis own right in the same land, his deed of the land, making no reference to the power, wiU convey only his own interest ; for there is a sub|ect-matter for the deed to oper- ate upon, excluding the power." Sugden on Powers (3d Amer. Ed. 477) states the rule: " The doctrine settled by the decis- ions seems to be this : When the donee of a power to sell land possesses also an interest in the subject of the power, a convey- ance by him, without actual reference to the power, will not be deemed an execution of it, except there be evidence of an inten- tion to execute it, or at least in the face of evidence disproving such intent." Kent's Commentaries (volume 4, p. 371, 11th Ed.) says : " The general rule of construction, both as to deeds and wills, is that if there be an interest and a power existing to- gether in the same person over the same subject, and an act be done without a particular reference to the power, it will be ap- plied to the interest, and not to the power. If there be any legal interest on which the deed can attach it will not execute a power." The rule of construction laid down in these authorities seems to have been established long before the enactment of our Revised Statutes, and was in the immediate contemplation of the revisors when they framed section 124, art. 3, tit. 2, c. 1, pt. 2, vol. 2 (3d Ed.), reading as follows: " Every instrument, exe- cuted by the grantee of a power, conveying an estate or creating a charge which such grantee would have no right to convey or create unless by virtue of his power, shall be deemed a valid execu- tion of the power, although such power be not recited or re- ferred to therein." This section is couched in broad and liberal language, and seems to have been adopted for the purpose of combining in the statutory regulations regarding powers all such existing rules in respect to the subject as it was thought desir- able and necessary to adopt and enforce in this country. There is no reason for supposing that the law-makers intended to change the existing rule and adopt one which should create a marked and essential difference in the law from what it had been for a long period of time in the country from whose jurisprudence our statutes in relation to powers were mainly derived. The rule was founded in reason and good sense, and was intended .-o provide that whenever a single power exists, under which a grantor may convey or mortgage real estate, his conveyance is 456 POWEES OF APPOINTMENT. to be attributed to the exercise of the power actually possessed by him ; but that whenever, in addition to a power, he is also invested with other independent interests or powers, whether legal or equitable, with respect to the same property, under the authority of either of which he may lawfully act, the rule of the statute should not apply. There can be, we think, no question but that the mortgagor in this case came within the meaning and spirit of this rule, as a person having independent rights and interests in the property mortgaged, in addition to the testamentary power. Aside from the power, she had possession of the land under a consummate right of dower, of which she could en- force admeasurement. Although this right, while unas- signed, did not give her a legal estate in the land, it is now well settled that it was a legal interest, and constituted property which was capable in equity of being sold, transferred and mort- gaged by the dowress, and liable to be reached by creditors in payment of her debts. Tompkins v. Fonda, 4 Paige, 488 ; Simart;. Canaday, 53 N. Y. 298; Payne v. Becker, 87 N. Y. 153 ; Pope v. Mead, 99 N. Y. 201 ; 1 N. E. Kep. 671; Bostwick V. Beach, 103 N. Y. 414; 9 N. E. Eep. 41. Judge Folger, in Simar «. Canada, said: " We think that it must be considered as settled in this State, notwithstanding Moore v. Mayor [8 N. Y. 110], and some dicta in other cases, that as between a wife and any other than the State or its delegates or agents exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right to action to that end." Judge Danforth, in Payne v. Becker, says: "Both upon prin- ciple and authority, therefore, we must hold that the widow's right or claim of dower, is property ; that, like any other spe- cies of property, it may be reached and applied to the payment of ber debts." Judge Rapallo, in Bostwick v. Beach, says: " The point made on the part of the defendant, that she could not dispose of her dower before it was admeasured, is decided adversely to her in the case of Payne v. Becker." In Pope v. Mead it is said that a dower right, although not admeasured, is an absolute right, which is assignable. That dower, be- fore assignment, is an interest in lands, within the mean- ing of the statute of frauds, is held in Finch v. Finch, 10 Ohio St. 501; Lothrop v. Foster, 51 Me. 367; and is fairly implied in Tompkins v. Fonda, and Payne v. Becker, supra. It has been held that a release of an inchoate right of dower constitutes a good consideration for a promise to pay (Garlick V. Strong, 3 Paige, 440); and that the existence of an inchoate EXECUTION OP POWER BY IMPLICATION. 457 Tight of dower in the equity of redemption of mortgaged prem- ises constitutes a good objection to title by a vendee in an action against him for specific performance (Mills v. Van Voorhies, 20 N. Y. 415). Judge Selden, writing in that case upon the effect of an omission to make the wife of a mortgagor a party to a foreclosure suit, says : " Whether at common law it would be necessary to make her a party must depend upon the ques- tion whether she has any interest, either legal or equitable, complete or inchoate in the mortgaged premises. If she has such an interest, however remote, then upon the plainest and most familiar principles, that interest cannot be affected, unless by virtue of some statute, by a suit in equity to which she is not a party ; * * * and a purchaser under such a foreclosure would not obtain an unincumbered title." Such a right, although a mere chose in action, and constituting no legal estate in the land, is nevertheless one which cannot be enforced against any property other than the land ; and, when enforced, creates a legal estate therein paramount to the right of those holding the legal title. A mortgage of such an interest operates as a conditional transfer of the right to enforce admeasurement of dower and enables the mortgagee to reduce to possession so much of the land as is necessary to satisfy the requirements of the mortgage. Property capable of being sold, transferred, and delivered, or charged, by means of legal proceedings, with the payment of debts, is, we think, such an interest as enables its owners, within the meaning of the statute, to create a charge thereon. Bouv. Law Diet., tit. "Charge;" Thomas Mortg., § 66. Although the right of a dowress in lands before assignment is not an estate, it is nevertheless a charge and incumbrance upon them, and is capable of being enforced, and of producing a legal estate. It is, in that respect, similar to the right which a mort- gagee has in the lands mortgaged. The interest of neither con- stitutes an estate in lands, but both are interests which may be pledged, transierred, or conveyed by any appropriate instrument evidencing an intent to so transfer them ; and in neither case can the lands be effectually transferred by the legal owners, so as to free them, in the hands of subsequent grantees, from the respective claims of the dowress or mortgagee or their assignees. The real question under the statute, would seem to be whether the mortgagor had a transferable interest in the mortgaged prem- ises, — one which would be available in the hands of her transferee as security for a debt. If so, then her interest was sufficient to bring her within the reason and meaning of the statute. A consid- eration of the object and purposes of a statute affords the safest 458 POWERS OP APPOINTMENT. and most reliable guide for the ascertainment of its intent, and of the meaning and effect which should be ascribed to it. In the statute referred to, the revisors obviously did not attempt to create or define estates in land, but merely prescribed a rule of construction for the interpretation of conveyances affecting real estate which might be executed under the authority of a power. It is quite obvious that an interest possessed by a grantor in real estate, whether legal or equitable, that is effectual to create a transfer of property is equally as persuasive as any other in fur- nishing a motive or reason for making or receiving a particular conveyance, and would furnish an equally strong circumstance from which the imputation of a legal intent might be derived. Both equitable and legal interests in real estate are valuable, and capable of transfer, and are equally effective in determining the intent with which a particular conveyance is made. The widow having, therefore, an interest in the land at the time of the execution of the first mortgage, capable of being sold, transferred, and mortgaged, aside from the right to sell or mort- gage under the power, her mortgage is not affected by the statute referred to. The contention that an unassigned right of dower consummate is not transferable, comes with curious effect from a party presenting a record which shows a decree in its favor under a mortgage authorizing a sale of this dower right for the satisfaction of its debt. The case or Marvin v. Smith, 46 N. Y. 571, cited to show the non-assignability of a right of dower, in the court below, hardly supports the proposition. That case holds only, that the wife's inchoate right of dower " was incapable of being transferred or released by her during coverture, except to one who already had, or who by the same instrument received, an independent interest in the estate; nor could she bind herself personally by a covenant or contract affecting her dower right." This case proceeded upon the dis- abilities attaching to the state of coverture, and did not affect the right of a widow to contract with reference to or convey a consummate right of dower. Cases relating to the question of proper parties to actions upon assigned choses in action, prior to the adoption of the code, requiring them to be brought in the name of the real party in interest, have no bearing upon the questions here presented, and need not be further considered. The order of the general term should be reversed, and the judg- ment of the special term affirmed, with costs in the general term and this court against the plaintiff. All concur, except Earl, J.» not voting, and Peckbam, J., not sitting. POWEES IN TRUSTS SUPEEIOR SUPERSEDES MINOR. 459 Powers in. Trust — Superior Power, when Exercised Ex- hausts or Supersedes Minor Powers. Bowen v. Chase, 94 U. S.812 (1876). Mr. Justice Bradley delivered the opinion of the court. The principal objects of the bill in this case, which was filed in the court below by the appellee. Nelson Chase, Eliza Jumel Pery and Paul E. G. Pery, her husband, and William I. Chase, were to establish their title to certain lands in the city of New York, known as the Stephen Jumel property, and to enjoin George W. Bowen, the appellant, from prosecuting certain actions of ejectment, one brought by him to recover certain lands in Saratoga, belonging to the late Madame Jumel, widow of Stephen Jumel, and claimed by the appellees by way of satisfaction for certain charges against her estate, as well as by conveyance from her supposed heirs, children of a deceased sister. Stephen Jumel was the owner of a lot at the corner of Broadway and Liberty streets, and of several tracts of land on Harlem Heights in the upper part of the city of New York. In 1827 and 1828 by certain mesne conveyances, the greater portion of this property was conveyed to one Michael Werck- meister upon the following trusts, namely : — " In trust that the said part of the second part (Werckmeis- ter) and his heirs collect and receive the rents, issues and profits, of the said above described and hereby conveyed premises, and every part and parcel thereof, and pay over the same unto Eliza Brown Jumel (the wife of Stephen Jumel, late of the city of New York, now of Paris in France), or at her election, suffer or permit her to use, occupy and possess the said premises, and to have, take, collect, receive and enjoy the rents and profits there- of, to and for her own separate use and benefit, and to and for such other uses and purposes as the said Eliza Brown Jumel shall please and think fit, at her own free will and pleasure and not subject to the control or interference of her present or any future husband, and the receipt and receipts of her, the said Eliza Brown Jumel, shall at all times be good and sufficient discharges for such payments, and for such rents and profits to him the said party of the second part, his heirs, executors and administrators, and to the person or persons who are or shall be liable to pay the same ; and upon this further trust, that the said party of the second part or his heirs may lease, demise, let, convey, assure, and dispose of all and singular the said above described premises, with their and every of their appurtenances, to such oerson or persons, for such term or terms, on such rent 460 POWERS OF APPOmTMBNT. or rents, for such price or prices, at such time or times, to such uses, intents or purposes, and in such manner and form, as she, the said Eliza Brown Jumel, notwithstanding her present or any- future coverture, as if she were a feme sole, shall, by any in- strument in writing, executed in the presence of any two credible witnesses, order, direct, limit or appoint; and in case of an absolute sale of said premises or of any part thereof, to pay over the purchase money to the said Eliza Brown Jumel, or in- vest the same as she shall order and direct ; and upon this further trust, upon the decease of the said Eliza Brown Jumel, to con- vey the said above-described premises, or such parts thereof as shall not have been previously conveyed by the said party of the second part or his heirs, and with respect to which no direction or appointment shall be made by the said Eliza Brown Jumel in her life-time, to the heirs of said Eliza Brown Jumel in fee-simple ; and pay over to the heirs of the said Eliza Brown Jumel such moneys as shall remain in the hands or under the control of the said party of the second part or his heirs, arising from collections of the rents and profits, or of the proceeds of the sales of the above-described premises or any part thereof." On the twenty-first day of November, 1828, the said Eliza Brown Jumel, by a deed duly executed, as required by the trust, made an appointment of all the lands conveyed in trust, in the following terms, to wit : — " Now, I, the said Eliza Brown Jumel, do hereby deed, order, limit and appoint, that, immediately after my demise, the said Michael Werckmeister, or his heirs, convey all and singular the said above-described premises to such person or persons, and such uses and purposes, as I, the said Eliza Brown Jumel, shall by my last will and testament, under my hand, and executed in the presence of two or more witnesses, designate and appoint; and for want thereof, then that he convey the same to my husband, Stephen Jumel, in case he be living, for and during his natural life, subject to an annuity, to be charged thereon during his natural life, of six hundred dollars, payable to Mary Jumel Bownes, and after the deith of my said husband or in case he shall not survive me, then immediately after my own death, to her, the said Mary Jumel Bownes, and her heirs in fee." It is on this trust and appointment that the appellees rely as the foundation of their title to what is generally known as the Stephen Jumel estate, Mary Jumel Bownes, the appointee of the residuary estate, was the adopted daughter or protigie of Step- hen Jumel and Madame Jumel, his wife, and the reputed niece of the latter. In 1832, Mary Jumel Bownes became the wife of POWERS IN TRUSTS — SUPERIOR SUPERSEDES MINOR. 461 Nelson Chase, and had by him two children, Eliza Jumel Pery, and William I. Chase, the appellees in the case. She died in 1843, leaving these children her sole heirs-at-law, in virtue of which they claim title to the estate. The appellant claims to be an illegitimate son of Madame Jumel, born in 1794, before her marriage to Stephen Jumel ; and by virtue of that relationship, and of a statute of New Yoris, passed in 1855, enabling illegitimate children to inherit from their mother, he claims to be her sole heir-at-law. He resists on various grounds the claim of Mrs. Chase and her heirs under the appointment. First, he contends that Madame Jumel took an estate in fee simple by virtue of the trust deed. But if not, then he contends, secondly, that by certain conveyances and appoint- ments made by Madame Jumel, under the powers contained in the trust deed, the appointment in favor of Mrs. Chase was dis- placed, and superseded by other estates which inured to Madame Jumel. The conveyances and appointments referred to under the second head are the following : — First. A conveyance to Alexander Hamilton by Werckmeister, the trustee, at the request and by the appointment of Madame Jumel, dated the 10th day of January, 1834, of ninety-four acres of land at Harlem Heights, for the expressed consideration of $15,000. On the 21st day of October, in the same year, this property was reconveyed by Hamilton to the trustee upon the same trusts declared in the original deed of trust. Secondly. A conveyance by the trustee, at the instance and appointment of Madame Jumel, made on the 20th day of August, 1842, to one Francis Phillippon, of a large portion of the estate, for the expressed consideration of $100,000 ; and a reconveyance of the same property, on the same day, by Phillipon to Madame Jumel in fee, for the expressed condition of one dollar. Besides these conveyances, in 1850, a lot of thirty-nine acres, being part of the property on Harlem Heights, was sold and conveyed to Ambrose W. Kingsland; and in 1853, another lot of three acres to Isaac P. Martin, which conveyances are admitted to have been made to actual purchasers for valuable consideration. The effect of these various deeds and conveyances is now to be considered. And first, that of the trust deeds executed to Werckmeister in 1827 and 1828. There were two of these deeds, but the trusts in both were precisely the same. The lim- itations of this trust are very clear and plain, being of a life estate to the separate use of Eliza Brown Jumel (known as Madame Jumel), with a general power of appointment during her life time ; and on failure to make such appointment, to her heirs in fee-simple. The counsel for appellant contends that 462 POWEES OF APPOINTMENT. this trust amounted to a use of the lands, and that under the old statute of uses and trusts, it operated to vest the legal estate in fee in Madame Jumel. But we think the authorities are very clear that, where a trust is created for the benefit of a married woman, for the purpose of giving her the separate use and con- trol of lands free from the control of her husband, it will be sustained ; since to merge the trust in the legal estate, or, to speak more properly, to convert it into a legal estate, would have the effect of placing the property in the husband's control by virtue of his marital rights, and would thus defeat the very purpose of the trust. Horton v. Horton, 7 T. E. 653; Cornish on Uses, 59 Sect. 6 ; Eife v. George, 59 Penn. 393. The legal effect of the appointment made by Madame Jumel, Nov. 21, 1828, we do not regard as any more doubtful than that of the trust. It was manifestly this, that subject to Madame Jumel's right of disposing of the lands by will ( which right she reserved) and after termination of her separate interest for life, the equi- table estate in the lands was limited to her husband for life, with remainder to Mary Jumel Bownes in fee-simple. This is so obvious as to require no elaboration of argument or discussion. The interests limited to Stephen Jumel for life, and to Mary Jumel Bownes in fee, were immediate vested interests, though to take effect in possession at a subsequent period ; namely at the death of Madame Jumel, and subject to be divested by her reserved power of disposing of the lands by will. The cir- cumstances that the appointment in their favor is, in form, a direction to the trustee to convey to them, does not derogate from the vesting quality of their equitable interests in the mean- time. The conveyance would be necessary for the purpose of clothing them with the legal estate. Stanley v. Stanley, 10 Ves. 507 ; Phipps v. Ackers, 9 CI. & Fin. 594; 4 Kent's Comm. 204 ; Eadford v. Willis, L. E. 12 Eq. Cas. 110; L. E. 7 Ch. App. 11. The effect of the Eevised Statutes of New York upon this trust is next to be considered. The chapter which contains the article on Uses and Trusts (1 Eev. Stat. 727) went into opera- tion on the 1st of January, 1830. By article all passive trusts were abolished, and the persons entitled to the actual possession of lands, and to the receipts of the rents and profits thereof, in law or in equity, were to be deemed to have the legal estate therein to the same extent as their equitable estate ; saving, however, the estates of trustees whose title was not merely nominal, but was connected with some power of actual dispo- sition or management in relation to the lands. Future trusts were allowed to be created to sell land for the benefit of cred- itors, or to create charges thereon, or to receive rents and POWERS IN TRUSTS SUPERIOR SUPERSEDES MINOR. 463 profits and apply them to the use of any person for life or any shorter term. In construinj^ these provisions, the courts of New York have held that a trust for the use and benefit of the beneficiary, not requiring any action or management on the part of the trustee, except, perhaps, to make conveyances at the direction and appointment of the beneficiary, is not a valid trust within the statute, bat inures as a legal estate in the beneficiary. This we think is the general result of the cases. See Leggett v. Perkins, 3 Comst. 297; Leggett v. Hunter, 19 N. Y. 454; Wood V. Mather, 38 Barb. 477; Anderson v. Mather, 44 N. Y. 257 ; Frazer v. Western, 1 Barb. Ch. 238. In applying the principle of these cases to the case before us, we are met by the alternative character of the trust, namely, that the trustee shall either collect and receive the rents and profits and pay them over to Madame Jumel, or, at her election, shall permit her to use, occupy and possess the premises, and collect and receive the rents and profits to her separate use ; and in either case, to convey as she might direct, or to her heirs in case no direction be given. The first of these alternatives, according to the cases, would be a valid trust; but the second is equivalent to nothing more than a mere trust for her use and benefit. During the life of her husband (who died in 1832) it might perhaps be fairly contended that the existence of the legal estate in the trustee was necessary to protect her in the enjoyment of the property as a separate estate free from the control of her husband. But after his death, the option of managing the property herself being in her, and not in the trustee, we are inclined to think that the trust became a mere passive one, and that the equitable estates were, by the Revised Statutes, converted into legal ones. This view is corroborated by the opinion of Chancellor Walworth, who had before him some questions concerning a portion of the estate in 1839, and who in relation to Madame Jumel's interest used this language:" Her equitable interest therein, as cestui que trust, being turned into a legal estate by the provisions of the Revised Statutes ;" citing the section above referred to, Jumel v. Jumel, 7 Paige, 595. It is true, as said by the counsel for the appellees, that the point in question was not necessary to the decision in this case ; but the observation shows the impression of an emi- nent judge, when the very matter was before his mind, and we have not been referred to any New York decisions derogatory to this view of the case. However, the view which we take of this case will not render it material whether the estates created by the trust and appointment became legal estates, or remained, as they were originally, merely equitable in their nature. The 464 POWERS OF APPOINTMENT. more material question is as to the effect of the conveyances made by Madame Jumel, and by the trustee in obedience to her direction and appointment subsequent to the death of her husband. We may dismiss the notion which pervades the argument of the counsel for appellees, that these conveyances were a fraud upon the appointment made in behalf of Mary Jumel Bownes (or Mrs. Chase). However proper that appointment may have been, considering the relations which the appointee sustained to Mr. Jumel and his wife, as their adopted daughter, it was, never- theless, only a voluntary one; and the subsequent appointments can in nowise be regarded as frauds upon it. They were or they were not, such appointments as Madame Jumel still had the power to make, and their effect is to be judged of by the nature of her power and by that circumstance alone. It is con- tended by the counsel for the appellant that, where several dis- tinct powers are given in the same Instruments the execution of one of these powers superior in dignity to others will supersede and override the latter, though executed first. This is, to a cer- tain extent, true, as shown and explained by Mr. Sugden in his work on Powers, in the passages referred to. The execution, for example, of a power of sale will supersede all other powers,. for it must necessarily do so in order to have any effect. Mr. Sugden, in illustrating the rule, says : — " Thus a power of sale must defeat every limitation of the estate, whether created directly by the deed or through the medium of a power, except estates limited to persons standing in the same situation as the purchaser, for example, a lessee ; for the very object of a power of sale is to enable a conveyance to a purchaser discharged of the uses of the settlement, and it is immaterial whether any particular use was really contained in the original settlement, or was introduced into it in view of the law by the execution of a power contained in it." 2 Sugd. on Powers, 47, 48 (6th ed.). In the present case there was a power to lease, and a power to convey, assure and dispose. That the latter power included a power to sell is not only manifest from the words, but from a subsequent passage of the trust, which directs as to the dispo- sition of the purchase-money " in case of an absolute sale." At the same time, the words are so general as to authorize a dis- position in favor of a volunteer or gratuitous beneficiary. Here, then, are really two distinct powers contained in one clause; and, according to the rules laid down by Mr. Sugden, the power to sell is the superior power, and will override the other power, and supersede it if previously exercised. This rule with regard POWERS IN TRUSTS SUPERIOR SUPERSEDES MINOR. 465 to the relative priority and dignity of different powers in the same instrument, though depending on construction and the pre- sumed intention of the donor, is somewhat analogous to the rules adopted by the courts in construing the act of 27 Elizabeth, representing fraudulent conveyances. It has been invariably held under that act, that a conveyance to a purchaser avoids all prior voluntary conveyances or two conveyances to purchasers, the first will take the precedency. Eoberts on Fraud. Conv., pp. 33, 641. So in regard to double powers, a power to sell or exchange, when exercised overrides all other distinct powers ; for they are necessarily exclusive of all others; whereas the uses appointed under other powers may possibly be served out of the estate procured by the price of the sale or by the exchange. But when a mere power to convey, as dis- tinguished from a power to sell, is once executed in favor of a voluntary beneficiary, it cannot be revoked without reserv- ing a power of revocation, and will not therefore be super- seded by a subsequent conveyance equally voluntary made under the same power. Had the transactions in question been real and effective sales to actual purchasers for valuable consideration, they would undoubtedly have superseded the voluntary appoint- ment in favor of Mary Jumel Bownes. The position of the ap- pellees' counsel, that no subsequent appointment could displace this without having expressly reserved a power of revocation, canuot be maintained, for, as we have seen, a sale does have that effect. There is no doubt that the conveyances to Kings- land and Martin were valid and effectual, and the execution of those conveyances cannot be characterized as in any manner fraudulent. They were conveyances which Madame Jumel, under her original power of appointment, had a right to make, notwithstanding the previous appointment in favor of her adopted daughter. But the conveyances made to Hamilton and Phillippon were of a different character, and seem to have been intended merely as means of restoring the prop- erty to its original trusts, or of vesting it absolutely in Madame Jumel herself, freed from the said appoint- ments. On this point there can be no dispute, so far as regards the deed to Phillippon. It was a mere formal conveyance, made to enable him to reconvey the property to Madame Jumel. As such it was simply voluntary, and could have no paramount effect over the previous appointment in favor of Mary Jumel Bownes. The conveyance to Hamilton may admit of more doubt. But looking at the whole transaction, the conveyance and the reconveyance, we cannot avoid the conclu- sion that it was intended as a means of getting rid of the former 30 466 POWERS OF APPOINTMKNT. appointment. The reconveyance by Hamilton to Werckmeister was equivalent to a cancellation of the pretended purchase. It was not a sale made by Hamilton to Werckmeister, nor a settle- ment made by him for any purposes of his own. It was simply a handing back of the property. In our judgment, therefore, the two conveyances amounted to a mere formal transfer and retransfer; and if any sale was ever intended, it was rescinded by the mutual consent of the parties to it. We are of the opin- ion that this transaction did not, any more than that with Phillippon, affect the appointment in question, or the estate of the appointee, whether that estate is to be regarded as a legal or an equitable one. The next question is as to the title of the appellees to equit- able relief for protecting them in the title which they have thus acquired. Madame Jumel died in 1865 ; and the appellees imme- diately entered into full possession of all ttie property in ques- tion, both that which was derived from Stephen Jumel and that which is conceded to have been the proper estate of Madame Jumel; and they have been in possession ever since. The appellant, by his several actions of ejectment, seeks to deprive them of that possession. With regard to the Stephen Jumel property, the title to which we have been considering, and which the appellees claim under and by virtue of the said trust and appointment, it is apparent that, if the estate which they thus acquired is to be regarded as still an equitable estate, their right to the protection of a court of equity is undoubted, no matter where or in whom the legal estate may be, — whether in the heirs of Werckmeister, the trustee, or in the heirs of Madam Jumel by virtue of the conveyances referred to. On the other hand, if by virtue of the Revised Statutes the equitable estate of the appellees became converted into a legal estate, they would still have good cause to come into a court of equity for the purpose of removing the cloud upon their title created by the subsequent appointments and conveyances to Hamilton and Phillippon. These instruments on their face pur- port to be conveyances to purchasers, setting forth pecuniary considerations to a large amount, and, by themselves, would import such a disposition of the lands conveyed as would defeat the appointment made in favor of Mrs. Chase. It is only by bringing them into juxtaposition with the sequent transactions in each case respectively, — that is to say, by the introduction of supplemental evidence, — that they are shown to be ineffect- ive. In view of these considerations, and of the fact that the whole title involves the true construction of the trust and the power of appointment, and the further fact that Madame Jumel POWERS IN TRUSTS SUPERIOR SUPERSEDES MINOR. 467 -was in full possession of the property, using and treating it as ber own absolute estate until her death, the appellees were per- fectly justified in coming into a court of equity to have these conveyances declared void. To this extent we think they are entitled to a decree, including also a decree for a perpetual in- junction against the appellant, prohibiting him from prosecuting any action or suit for the recovery of the lands embraced in the appointment made in favor of Mary Jumel Bownes, by deed of appointment executed by Eliza Brown Jumel, and bearing date the twenty-first day of November, 1828. As to the residue of the relief prayed for, namely, that the appellees should have the lands and real estate of which Madame Jumel indisputably died seised in fee-simple appropriated to them in satisfaction of the supposed frauds committed by her against the trust, and of the engagements which she is supposed to have made to settle her estate, or a portion thereof upon Eliza Jumel Chase, in consideration of her marriage with Mr. Pery, we are unable to perceive any valid ground for granting the prayer of the bill. If there were no other objections to the decree sought in this behalf, we cannot agree with the counsel of the appellees, that any such fraud as is supposed was practiced, or if attempted that the attempt was successful ; and we fail to see anything in the proofs adduced with regard to the negotia- tions of the said marriage sufficient to sustain such a decree. Nor do we think that the nature of the obligation created by the actions of ejectment, the character and amount of the evidence, or the number of writs, is such as to lay the foundation for the assumption of the entire controversy by a court of equity. Sup- posing the relationship of the appellant to Madame Jumel to be such as he pretends it is, there does not seem to be any unneces- sary multiplication of actions. All the property in the city of New York is included in one writ, and the actions in Saratoga are brought against the several tenants in possession. The power of the courts of law to consolidate actions depending be- tween the same parties, and upon the same questions in contro- versy, is probably sufficient to prevent any practical inconve- nience not inherent in the case itself. If the evidence is merely Toluminous or tedious, that circumstance is not sufficient cause for removing a case from a court of law to a court of equity. The claim made by the appellees to recover from the appellant the sum of $2,500, procured by him by way of compromise from a grantee of Mrs. Chase is, in our opinion, utterly groundless. Decree reversed, and cause remanded with directions to enter a decree in conformity with this opinion. 468 INCOKPOEEAL HEEEDITAMENTS. CHAPTER XVI. INCOBPOKEAL HEEEDITAMENTS — COMMONS — EASEMENTS — FRAN- CHISES — RENTS. Pinknm v. City of Eau Claire, 81 Wis. 301 ; 51 N. W. 550. Tredwell v. Inslee, 120 N. Y. 458; 24 N. E. 651. Clhak V. Kleke, 117 III. 643; 7 N. E. 111. Stein V. Dahm, 96 Ala. 481 ; 11 So. 597. Edgerton v. McMuUan, 65 Kan. 90; 39 P. 1021. PliUiips V. Sherman, 64 Me. 171. Collins V. Chartiers Val. Gas Co., 131 Pa. St. 143; 18 A. 1012. Fox V. Mission Free School, 120 Mo. 349; 25 S. W. 172. Easement In Gross — Express Grant. Pinkum v. City of Eau Claire, 81 Wis. 301 ; 51 N. W. 550. Appeal from circuit court, Eau Claire County, E. B. Bundy, Judge. Suit in equity by John P. Pinkum against the city of Eau Claire to compel defendant to perform the conditions of a deed granting an easement, or, in the alternative to annul the deed, and for damages for failure to perform the condition. A demurrer to the complaint was overruled, and defendant appeals. Af- firmed. The other facts fully appear in the following statement by WiNSLOW, J. Appeal from an order overruling a demurrer to the complaint. The complaint states that on the 16th day of January, 1877, Ira Mead and Charles BoUes owned in fee lot 2, in section 18, town- ship 27, range 9, west, and on that day made and delivered to the defendant city a deed, duly executed and acknowledged, which was accepted by the city, which is set forth at length, and which, after certain recitals, proceeds as follows : " Said parties of the first part, in consideration of one dollar and other valuable considerations received, to the full satisfaction of the said party of the second part, for themselves and their heirs and assigns, doth covenant and agree with, grant and confirm unto, the said party of the second part, its successors and assigns, that it shall be lawful for the said party of the second part, its successors and assigns, and their respective tenants, officers, agents, and servants, and any other person or persons, for the benefit or advantage of the said party of the second part, or its successors or assigns, at all times freely to enter upon the lands and premises situated in the city of Eau Claire, in the county of EASEMENT IN GROSS EXPRESS GRANT. 469 Eau Claire, iu said State, and described as follows, to wit: Lot 2 (2), in sec. eighteen (18), township number twenty-seven (27) north, of range number nine (9) west, for the purpose of constructing, maintaining, and operating a canal or race-way along and upon the westerly shore of the Chippewa river, as may be most practical and convenient, and a public highway along and contiguous to the westerly shore of said canal, not exceed- ing four (4) rods in width, upon a strip of land not exceeding eight (8) rods in width, adjacent to said Chippewa river, from the southerly line or boundary of the lot or parcel of land in said lot numbered two, conveyed by these grantors to the grantees herein, of even date herewith, to the southerly boundary of said lot number two (2), of sufficient size and capacity to connect the Chippewa river with Half-Moon lake, for the purpose of running and floating logs, timber, fence-posts, and railroad ties into said Half-Moon lake, and holding and booming the same therein, and for all other and every the uses, purposes, and objects contemplated, authorized, or required by said several legislative acts. Also to cut trees and timber, quarry stone, and dig earth, and remove and use the same for all and every the uses, purposes, and objects aforesaid ; all the above-mentioned rights, privileges, and easements hereinbefore granted and vested in the said party of the second part, its successors and assigns, to be held, en- joyed and used in and upon said strip of land eight rods wide, and not ottierwise ; the westerly boundary line of said strip of land to be 8 rods from and parallel to the Chippewa river at high-water mark ; provided, however, and these presents are upon these express conditions and reservations following, to wit : That the grantee herein, its successors and assigns, shall, before the water is let into said canal or race-way for the purpose of operating and using the same, as herein provided, construct, finish and operate the said highway along the westerly shore or side of Siiid canal or race-way at least sixteen (16) feet in width, and so that no part of the bed of the same shall be over ten (10) feet Mbove the surface of the water as it may or shall run in said canal or race-way at high-water mark on the Chippewa river. (2) That the grantee herein, its successors and assigns, shall pay all taxes of every name and nature which shall be lawfully as- sessed upon the rights, privileges and easements herein granted to them, and upon all the works, erections and structures made by them, or any of them, on said strip of land for the purposes aforesaid. (3) That the grantors herein reserve to themselves, their heirs and assigns, the right and privilege at all times to cut trees and timber, quarry stone and dig earth, and remove the same, from said strip of laud. (4) That the grantors here- 470 INCOKPOKKAIi HEREDITAMENTS. in also reserve to themselves and their heirs and assigns all the stone which may be dug, quarried, or blasted by the grantee herein, its successors and assigns, in the construction and com- pletion of any of the works, and not needed or used by them, or any of them, for the uses, purposes, and objects contemplated, authorized, or required by said several legislative acts, and in the construction, completion, maintenance, and operation of said canal or race-way. (5) That none of the rights, privileges, and easements herein granted to the said grantee, its executors, suc- cessors, and assigns, shall be enjoyed by them, or any of them, beyond the boundary or limits of said strip of land eight rods in width, herein described. (6) That the said canal or race- way ,^ and the highway and other works hereinbefore mentioned, shall be fully constructed and completed within the period of five years from the date of these presents. To have and to hold the above- granted rights, privileges, and easements in and to the lands and premises aforesaid, and every of them, unto the said parties of the second part, their successors and assigns, to their own proper use and benefit forever, for all and every the uses and purposes aforesaid, and for no other use and purpose whatsoever, subject, however, to all the aforesaid exceptions, conditions, and reserva- tions : provided, always, and these presents are upon the express condition, that if at any time the above-mentioned contemplated works shall cease to be maintained and operated for the purposes contemplated, required, and authorized by said several legis- lative acts, the covenants, agreements and grants herein con- tained, and these presents, shall cease, and become null and void for every purpose whatsoever." The complaint further proceeds as follows : " That imme- diately thereafter the said defendant entered upon said lands so described, and did build and construct its dam, and build its race-way, and let the water therein, built the other works in con- nection therewith, and did use and appropriate to itself the full use and possession of that part of said lot two (2) so conveyed, and all the rights, privileges and easements therein granted j and ever since said time has maintained and used said premises, and been in the exercise of the full use and enjoyment of all said rights, privileges and easements. And the plaintiff further shows that all the rights, considerations, covenants and condi- tions in said lease which were by its terms to be performed by the said defendant, and the full use and benefit thereof, and the right to recover for the same and to enforce performance thereof, was, on the 5th day of January, 1880, duly assigned, transferred and sold to this plaintiff for a valuable con- sideration by the said Mead and Bolles, and the said lot EASEMENT IN GROSS EXPRESS GRANT. 471 two duly conveyed to the plaintiff by said Mead and Belles and their wives, respectively. And the plaintiff further shows that the said defendant has wholly neglected, failed and refused to perform any of the conditions or cov- enants expressed in said deed on its part to be performed as a consideration for said grant, and specially failed and neglected to construct or operate the highway along the westerly shore of the canal, therein described, which was the consideration for such grant. That the banks of said lot two, from the Chippewa river, were at the times mentioned, and now are, very steep, — almost perpendicular, — to a length of about one thousand three hundred and twenty feet, and consist of a rocky ledge of sandstone. That such ledge at that time, and continuously since, was of great value as a stone quarry ; the stone therein being of exceptionally good quality for building purposes, and superior to the stone in most other quarries adjacent to Eau Claire. That, in order to work said quarry successfully, it was necessary that the road- way mentioned in said deed should be constructed; and on account of the height of the banks, and they being of solid stone, the expense of constructing such a highway was very large, — at least eight thousand dollars ; and to secure such highway was the chief and only purpose of the grant from Mead and Bolles to the defendant, on their part; and such condition, being attached to the grant, was the sole consideration of the purchase of the land and the rights on the premises from Mead and Bolles by the plaintiff. That by means of said highway large quantities of valuable stone could have been quarried, for which there then was, and ever since has been, a ready sale in the city of Eau Claire, within which said quarry is located, at large profits over and above the cost of quarrying the same. And that, by reason of the neglect and refusal of the defendant to construct and maintain such highway as it is stipulated and agreed, the plaintiff has been unable to work such quarry, has been deprived wholly of its use, and suffered the loss of the profit which he would have made had the road been so constructed and maintained, which profit would not have been less than five hundred dollars for each and every year he could have worked said quarry by means of access thereto and therefrom by said highway ; and he has sustained damage in said sum each such year, amounting in the aggregate to the sum of seven thousand dollars." The complaint also alleges the delivery to the city on the 28th of April, 1890, of a notice and demand that the city imme- diately perform the conditions of said deed, and pay to the plaintiff the damages he has sustained by reason of the non-per- 472 INCOEPOREAL HEREDITAMENTS. formance thereof, alleged to be $500 per year ; but that the city has not complied with the demand, or taken any action towards complying with the same. The prayer for judgment is as follows: "Wherefore the plaintiff prays for the decree of this court, that the said defendant be commanded to immediately construct and maintain such highway, and it pay to the plaintiff the damages he has sustained by reason of not having constructed the same at the time and in the manner conditioned in said grant from Mead and Bolles to it; and that in case of default in so doing after such a decree, that the said deed and grant to be decreed annulled, vacated, and set aside, and the plaintiff be decreed to hold the title to said lot two (2) free and clear from any cloud created by the same. That the defendant deliver up possession of that part of said lot which it occupied under said grant, and remove all obstructions or encroachments it has placed and now maintains upon the same ; and that it be decreed to pay the damages heretofore sustained, and for such other and further relief in the premises as may be proper and agreeable to equity, and that the plaintiff have judgment for his costs and disbursements of this action." The grounds of the demurrer are as follows : "(1) That the plaintiff has not legal capacity to sue, such defect consisting in the fact that the plaintiff is suing in the pretended capacity of the assignee of the pretended causes of action in the complaint set forth, and as such assignee has no lawful right to maintain such action. (2) That several causes of action have been im- properly united in said complaint. (3) That the complaint does not state facts sufficient to constitute a cause of action. (4) That the said action was not commenced within the time limited by law ; and in regard to said fourth objection the defendant refers to the following statutes, which are claimed by it to limit the plaintiff's right to sue: First, section 4215, Rev. St. Wis.; second, subdivision 4, § 4221, Eev. St. ; third, subdivisions 3, 5, § 4222, Eev. St. WiNSLOW, J. {after stating the facts). The deed set forth in the complaint undoubtedly granted to the city an easement over the lands described in the deed for the purposes set forth therein. It was an easement in gross, because it does not appear to be appurtenant to any estate in land, and it was upon condi- tion. Whether the condition was precedent or subsequent is not necessary to be decided upon this appeal, and is not decided. The easement was also in perpetuity. That an easement may be created in fee is well settled. The fee of land may be in one person, and the fee of an easement upon such land in another. EASEMENT IN GROSS — EXPRESS GRANT. 473 2 Bl. Comm., c. 7, pp. 106, 107; Story v. Railroad Co., 90 N. Y. 122, 158 ; Child v. Chappell, 9 N. Y. 255; Nellist). Munson, 108 N. Y. 453; 15 N. E. Rep. 739. Technically, an easement in fee must be appurtenant to land; and consequently, the ease- ment here created, being in gross, is not strictly an easement in fee, but, being granted to the city, " its successors and assigns," it is capable of assignment, and is therefore undoubtedly in per- petuity, though not technically in fee. Poull v. Mockley, 33 Wis. 482. The difference is purely technical, and does not affect any substantial right in this case. Therefore, when this deed was executed and delivered, the fee of the land remained in the grantors. Mead and Bolles, subject to the conditional easement in perpetuity created by the deed. Being the owners in fee of the land, they could, of course, convey it to another; and their grantee would stand in their shoes. Why, then, cannot such grantee bring an action against one claiming an easement on condition to take advantage of condition broken or enforce its performance? It is said that he cannot because of the long-settled common-law principle that a condition in a deed can only be reserved to the grantor or his heirs, and not to a stranger. This rule applies to land conveyed upon condition subsequent, and the reason of the rule is that the estate is not defeated, though the condition be broken, until entry by the grantor or his heirs, and there is nothing to assign save a mere right of entry, which at common law is not assignable. Nicoll «. Railroad Co., 12 Barb. 460; 12 N. Y. 21; 1 Greenl. Cruise, tit. 13, c. 1, § 15. No such rule can apply here, because the reason does not exist. In this case the plaintiff does not claim as the assignee of a mere right of action or right of entry on land, but he claims as owner in fee of land burdened with an easement granted upon condition, which condition is alleged to have been broken. It would be a singular rule of law which would forever prevent the owner in fee of lands from question- ing the right of another to maintain an easement upon his land, when there existed a violation of the express condition upon which the easement was granted. No such rule exists. It is claimed by the appellant that the condition in the deed that the city shall build a highway is void, because it appears that the building of such highway would involve an expense of some $8,000, and the complaint does not allege than any action was ever taken by the common coun- cil of the defendant city agreeing to the condition, or promising to perform it, and the city charter containing a provision that no debt shall be created or liability incurred by the city except by a rote of a majority of the members of the council. Hence 474 INCORPOREAL HEREDITAMENTS. it is argued that the condition in the deed was and is void , and that the title to the easement vested in the city without perform- ance of the condition. In reference to this and kindred objec- tions, it is suflScient to say that the complaint alleges substantially that the city made and entered into this agreement and pur- chased and received the deed of the property in issue upon the terms, conditions, and reservations expressed in the deed. Upon demurrer this must be construed as meaning that such steps were taken as were legally necessary to make the conditions of the deed effectual. It is further objected by the appellant that an action in equity will not lie, because the plaintiff has an adequate remedy at law by an action in ejectment. Neither is this objection well taken. Ejectment is not the appropriate remedy for the recov- ery of a mere easement. Child v. Chappell, 9 N. Y. 246 ; Strong V. Brooklyn, 68 N. Y. 10; Washb. Easem. (4th Ed.), p. 740. In this connection, see, also. City of Eacine v. Crotsenberg, 61 Wis. 481 ; 21 N. W. Eep. 520. It is true that in Lawe v. City of Kau- kauna, 70 Wis. 306 ; 35 N. W. Rep. 561, ejectment was main- tained against a city for property which was claimed by the city as a highway or approach to a bridge. The case shows, however, that permanent walls and abutments had been built upon the property, and that the bridge when closed, rested par- tially thereon, so that it was in fact permanently occupied. Furthermore, no objection was taken in that case that the proper remedy was in equity. That question was not raised, and hence not decided. The case is not authority against the doctrine that the proper remedy here is in equity. The claim that the complaint shows adverse possession by defendant for more than 10 years is not tenable. It simply shows such possession as is necessary to the full enjoyment of the ease- ment. Such possession is not adverse to the owner of the land. The character of the possession is determined by the character of the claim under which possession is taken and held. The ' claim is only of an easement. The objection that the complaint improperly joins two causes of action — one for damages at law, and one for equitable relief — cannot prevail. It being settled that equity has jurisdic- tion to entertain the action for the purposes of determining the rights of the parties with regard to the easement, it will, on familiar principles, take cognizance of the controversy in all its branches, and settle the rights of the parties by a single decree, thus saving multiplicity of suits. Turner v. Pierce, 34 Wis. 658. It is said that the claim for money damages is barred by a provision of the charter of the defendant city which was in EASEMENT IN GROSS — EXPRESS GRANT. 475 force prior to passage of chapter 184 of the Laws of 1889, as follows : '« No action shall be maintained by any person against the city of Eau Claire upon any claim or demand until such per- son shall first have presented his claim or demand to the common council for allowance, and allowance thereof refused by said council." What effect this provision may have upon the claim for damages is not necessary to be determined. It plainly is inapplicable to an action for equitable relief, and hence cannot serve as ground for demurrer to the entire complaint. The revised charter of the city (chapter 184, Laws 1889) also contains the following provisions, which are relied upon to defeat this action : " Sec. 22. No suit of any kind, or any claim or cause of action, either ex contractu or ex delicto, shall be brought against said city, but the claimant shall file his claim with the city clerk, for the action of the common council there- on ; and, if he feels aggrieved by their determination, he may appeal to the circuit court, in the manner hereinafter provided. If the council neglects to take final action, within sixty days after the same is filed, the same, for the purposes of an appeal by the claimant, may be taken as disallowed. In case an appeal is taken, the city clerk shall immediately notify the city attorney, and shall make and deliver to him a copy of all papers and proceedings relating to the matter in his possession. He shall notify the common council of such appeal at its next meeting; and no appeal shall be taken, entertained or allowed, from the determination of such council, unless the cause of action accrued within six months immediately prior to the time when such claimant shall have filed his said claim with the clerk as aforesaid. Sec. 23. The determination of the common council, disallowing in whole or in part any claim or causes of action of any person, company, or corporation shall be final and conclusive, and a perpetual bar to any action in any court founded on such claim, unless such person, persons, company, or corporation shall appeal from such action disallowing the same to the circuit court, as provided in this chapter." These provisions if applicable to such an action as this, would, by their terms, absolutely bar this action immediately upon the passage of the act, because the cause of action accrued more than six months before the claim could be filed with the city clerk ; hence no appeal could be taken from a disallowance by the council, and that determination would be final and conclusive. Thus the right of action is absolutely cut off at once, and without giving any time to prosecute. This cannot be done, under well established principles. Arimond v.. Canal Co., 31 Wis. 316. 476 INCORPOREAL HEREDITAMENTS. The final objection taken is that this action is barred by the statute of limitations. Kev. St., par. 4, § 4221. The deed was given in January, 1877. By its express provisions the city had five years in which to complete the canal and highway, so that it would seem that the cause of action did not accrue until January, 3882, which is less than 10 years before the commencement of this action, and consequently the action is not barred by the statute last named, which fixes the period at ten years. It is unnecessary to discuss the question as to what precise form of relief the plaintiff will be entitled to if he substantiates his complaint upon the trial. He may not be entitled to all that he has prayed in his complaint, nor perhaps in that form, but that he will be entitled to some remedy we cannot doubt. Order affirmed. Easement by Prescription — Equitable Easement. Tredwell v. Inslee, 120 N. Y. 458; 24 N. E. 651. Appeal from an order of the general term of the third judicial department, which reversed a judgment entered upon the decis- ion of the special term, and granted a new trial. This action was brought by the plaintiffs testator to restrain the defendant's testator from interfering with a drain running from the plaintiffs premises across the defendant's premises, and to compel him (defendant's testator) to restore the portion of the drain which he had destroyed. Prior to October 14, 1845, Piatt Williams was the owner of four lots of land on Patroon street, now Clinton avenue, in the city of Albany, and of land adjoining said lots on the south, and fronting on Orange street. On the date last named, said Williams and wife conveyed to one Davidson the lot owned by the defendant, and thereafter said lot, by several mesne conveyances, was conveyed to John Eeid, the defendant's testator. Said Eeid became the owner in May, 1873. None of said deeds contained any reservation of the use of any drain, or of any right or privilege of drainage, through or across said lot. The deed to Davidson did, however, convey the right to " the use of a drain in the rear of said premises, leading from thence through another lot of said party of the first part (Williams) to a public drain in Orange street," and said right of drainage was by several mesne conveyances of said lot conveyed to said Eeid. On November 20, 1849, said Williams and wife conveyed to one Charles C. Vail two plots of ground on Patroon street, one lying easterly and one westerly of the lot conveyed to Davidson, the latter of which two plots of EASEMENT BY PRESCRIPTION EQUITABLE EASEMENT. 477 land included the lot now owned by the plaintiff. The deed to Vail made no mention of any right of drainage, or of any right to use any drain through or across the defendant's lot. On De- cember 2, 1851, said Vail conveyed the lot now owned by the plaintiff to one William Bennie, and by several mesne convey- ances the title thereto was, prior to September 4, 1860, vested in James Vane, who, on said date, conveyed the same to plain- tiff's testator. The deed from Vail to Kennie purported to convey " the free and uninterrupted use of a drain in com- mon with the other owners," and such right is expressed as being conveyed, in all subsequent deeds of the lot, to and in- cluding the deed from Vane to the plaintiflF's testator. When plaintiff's testator became the owner of said lot there existed a drain which ran therefrom across an intervening lot, and across the defendant's lot, to the lot of one George Carroll, which is next east of defendant, and then entered a drain running south- erly across a lot owned by one Flood to Orange street, which then and for some time thereafter was used to drain the plain- tiflF's lot. In May, 1885, the said drain was discovered by plaintiflF's testator to have been cut off and stopped up with clay, upon defendant's lot. Flood derived the title to his lot from Williams, and the conveyance to him in October, 1853, was " subject to a certain right of drainage or sewerage from four certain lots heretofore sold, and conveyed by party of the first part (Williams), and lying on Patroon street, through a drain or sewer heretofore constructed in and upon said lot hereby con- veyed, and this right is hereby reserved ; the party of the second part, his heirs and assigns, being hereby bound to keep in repair that part of said drain or sewer, as it now exists, which runs through the lot hereby conveyed." The trial court found that, by the deed from Vane and wife, the plaintiff's testator be- came the owner of a right of drainage across the defendant's lot, and thence across the lot on the east, to a drain running south- erly to Orange street ; that the defendant's testator held his lot subject to such right of drainage, and became the owner of said lot, with due notice of said right; that the plaintiflF had, prior to May, 1885, used and enjoyed said right of drain- age for more than 20 years; that the drain from plaintiff's lot through defendant's lot, and thence to Orange street, was the one referred to in the deed from Williams to Davidson ; and that defendant and his grantors were made acquainted with the condition of the lots in reference to the drain by the deed of Williams to Davidson, and took title with notice and knowledge of the changed condition of the lots as related to the drain. Further facts appear in the opinion. 478 INCOEPOREiL HEEEDITAMBNTS. Brown, J. {after stating the facts as above). The finding of the special term that the plaintiff's testator became the owner of a right of drainage across the defendant's lot by the deed from Vane and wife cannot be sustained. The earliest conveyance by Williams of any of the property affected by the drain in question was of defendant's lot to Davidson, in 1845. That conveyance contained no reservation of the use of any drain for the benefit of the lots lying west of it, and it cut off all such right from any lots subsequently conveyed by Williams. Williams continued to own the plaintiff's lot until November, 1849, and his convey- ance of that lot in that month to Vail did not purport to convey any right to the use of the drain. Whether or not the drain existed at that time does not appear in the evidence, and is not important or material, in view of the fact that the right to use it was neither reserved in the deed to David- son nor conveyed in the deed to Vail. The earliest men- tion of a drain in connection with plaintiflfs property is in the deed from Vail to Eennie, in 1851. That deed did not locate it or describe it as running across defendant's lot. The right to use such was conveyed to Vane, and he conveyed it to the plaintiflTs testator in 1860. No deed from any owner of de- fendant's lot prior to 1860 is proven, conveying any such right, and it is apparent at that date no title by user could have been acquired by the owner of plaintiff's lot. The finding quoted, therefore, appears to be without any evidence to sustain it. The right to the use of the drain for the benefit of the plaintiff's lot (if such can be sustained) does not rest upon a conveyance thereof, but upon a title obtained by a use adverse to the defend- ant. The special term found as a fact that prior to May, 1885, when the plaintiff's testator first discovered that the drain was cut off, he had used and enjoyed such right of drainage for more than twenty years under claim of right. If that finding can be sustained, it is not disputed that the judgment of the special term was right, and the only question necessary to be considered upon this appeal is whether such finding has evidence to support it. The conveyance to Munsion, plaintiff's testa- tor, was in September, 1860. He testified that he first knew of the drain when he took possession of the property ; that it commenced at his house, ran southerly to the rear of the lot, thence easterly across the defendant's lot to the lot of George Carrol, where it entered the sewer, leading south- erly to Orange street. That is the earliest date at which the evidence fixes the existence of the drain across defendant's lot, and there is no evidence that at that time its existence was known to the owner of that lot. John Eeid, defendant's testa- EASEMENT BY PEESCEIPTION — EQUITABLE EASEMENT. 479 tor, purchased the lot in May, 1873. Mansion testified that in 1875 he paid five dollars to John Eeid's brother, for repairing the common sewer running across Flood's lot to Orange street; and assuming that John Eeid was cognizant of that payment and that it permits an inference that he must then have known that the drain from plaintiff's lot to the common sewer crossed his property, that is the earliest date at which the evidence charges him with knowledge of the fact. These facts do not establish an adverse user. To establish an easement in the land of another by prescription or adverse use, it is essential that the use and claim of right be actually known by the person against whom the adverse user is claimed, or it must be so visible, open, or notorious as that knowledge of such use or claim will be presumed. Ward v. Warren, 82 N. Y. 265 ; Parker v. Foote, 19 Wend. 309-311 ; NichoUs v. Went- worth, 100 N. Y. 455; 3 N. E. Eep. 482; Washb. Easem. (3d Ed.) 160 ; Hannefin v. Blake, 102 Mass. 297. An underground drain is not visible or apparent to an owner of property, and the adverse user did not begin to run until it was brought to the notice of the defendant's testator, in 1875, and it is apparent that at the time of the commencement of this action such user had not ripened into a title. Nor can the right of drainage be sustained upon any claim that the drain existed at the time of the deed to Davidson. If Will- iams had constructed this drain for the benefit of all the lots on Patroon street, the right, so far as it related to the lots west of defendant's lot, was lost upon the conveyance to Davidson. As already stated, the drain was not an apparent or visible incum- brance, and, in the absence of actual knowledge of its existence, Davidson had a right to rely upon appearances, and to believe that the apparent condition was the real one. In such a case as this, the grantee takes his land according to the terms of his deed, and, if the deed gives no notice of any right reserved in favor of the grantor across the lot conveyed, the latter is freed from any servitude theretofore existing, and the grantor is estopped by his covenants from asserting any. Butterworth v. Crawford, 46 N. Y. 349; Huyck v. Andrews, 113 N. Y. 81; 20 N. E. Rep. 581. The appellant's claim that the owner of defendant's lot is chargeable by the record with constructive notice of the exist- ence of the drain from the date of the deed to Davidson cannot be sustained. The deed to Davidson gave no notice that the lot thereby conveyed was burdened with a servitude in favor of any lots of Williams on the west. It conveyed the right to the use of a drain across the grantor's lot on the east, leading to the 480 INCORPOREAL HEREDITAMENTS. common sewer to Orange street. This was beneficial to the lot conveyed. But there was no intimation that lots on the west were to enjoy a similar benefit, or that Davidson's lot was burdened with a right of drainage, in their favor. None of the subsequent deeds for this lot recognized any servitude iu favor of plaintiff's lot. The fact that the deed to Davidson was not recorded until May, 1873, long after the record of the deed from Williams to Vail, is not a material fact in the record. If the deed to Vail had conveyed a right of drainage across David- son's lot, the failure to record the Davidson deed might have been important. But, as already pointed out, this deed did not purport to grant or convey any right of drainage. It is only when two conveyances purport to convey the same property that a subsequent purchaser obtains a priority over an earlier grantee by reason of priority of the record of his deed. Neither was the defendant or his grantor chargeable with notice of the con- tents of the Flood deed. That conveyance was subsequent to both the deeds to Davidson and Vail. It did not appear in the chain of title to either lot; and, if it did, I fail to see how the fact that Flood's lot was burdened with the right of drainage in favor of all the lots on Patroon street could alter the rights which the owner of the defendant's lot acquired under the deed to Davidson. The order must be affirmed and judgment abso- lute rendered for the respondent, with costs. All concur. Equitable Easement — Title to Alley by Estoppel. Cihak V. Kleke, 117 IU. 643; 7 N. E. 111. Error to First district. Sheldon, J. We are of opinion that, upon the facts of this case, Cihak, the plaintiff in error, has an easement in the alley in question, which cannot be destroyed without his concurrence. We would have no doubt in the matter had Mrs. Hubbard, the grantor of Cihak, been the actor in the sale to him, and in the previous management of the entire property, instead of Gun- zenhauser. The proof establishes to our satisfaction that in 1859 Gunzenhauser, as agent, took charge of the three lots 19, 20, and 21, fronting on De Koven street, to care for, lease them, and collect the rents ; that for the more advantageous leasing of the lots, and deriving the most rental, he subdivided them, making of lots 20 and 21 four lots fronting on Jefferson street, and dividing lot 19 into two lots fronting on De Koven street. He made the four lots on Jefferson street 90 feet in depth, and an alley 10 feet wide, — the alley running from north to south along EQUITABLE EASEMENT — TITLE TO ALLEY BY ESTOPPEL. 481 the entire east line of lot 19, and taking off the west 10 feet of the east two lots, thus forming an alley between the east half of lot 19 on the west, and the four lots on the east ; that he drove the stakes for the alley ; that he made written leases of the lots, according to this subdivision, leasing the four lots as only 90 feet deep; that in 1859 he leased the east half of lot 19, and the tenant in that 5'ear put up a fence on the west line of the alley, and, as the four lots east of the alley were leased, the tenant would put a fence on the west end of his lot adjoining the alley, so that by about 1864 all the four lots east of the alley were leased and occupied, and there was either a fence or shed and barn along the entire east line of the alley ; and from that time until 1882, with the alley thus open and defined, all the lots were under lease in the manner stated. This establish- ment of the alley was not only for the use and benefit of the lots from which it was taken on the east of it, but it was as well for the use and benefit of the east half of lot 19, which adjoined its whole length on the west. This alley was a manifest advan- tage to the east half of lot 19, and must have enhanced its rental value. There was a building on the east half of lot 19 fronting on De Koven street, with its side on the line of the alley, with a window in it, and a door leading into the alley. The alley was actually being used for the delivery of coal and wood for the house, and was the only means of access used for such purpose. If all this had been with the knowledge and procurement of the owner, and she had personally sold the east half of lot 19, the case would seem to be brought within the principle that when the owner of two tenements, or of an entire estate, has arranged and adapted these so that one tenement, or one portion of the estate, derives a benefit and advantage from the other, of a per- manent, open, and visible character, and he sells the same, a purchaser takes the tenement or portion sold with all the benefits and burdens which so appear, at the time of the sale, to belong to it. Morrison v. King, 62 111. 34 ; Ingals v. Plamondon, 75 111. 118; Janes V. Jenkins, 34 Md. 1; Huttemeier v. Albro, 18N. Y. 50; Lampman v. Milks, 21 N. Y. 507; Dunklee v. Wilton R. Co., 24 N. H. 489; Kieffer v. Imhoff, 26 Pa. St. 438; Cannon V. Boyd, 73 Pa. St. 179. We do not concur in the view of counsel for defendants in error, that the easement to be claimed by the grantee in such a case must be reajly necessary for the enjoyment of the estate granted. Mr. Bennett, in his edition of Goddard on Easements (page 122), in speaking on this subject of grants of gwasi-ease- ments upon the conveyance of one of two lots, says: — " The third class of cases is where the ywasi-easement claimed 31 482 INCORPOKEAL HEEEDITAMBNTS. by the grantee is not really ' necessary' for the enjoyment of the estate granted, but is highly convenient and beneficial therefor ; and here the modern rule in America is that, if such easement is continuous and apparent at the time of the grant, it passes to the purchaser with his estate, otherwise not." And in Washb. Easem. (3d Ed.) 95, in the discussing of this question, the author says : — " It (the easement) must be reasonably necessary to the en- joyment of the part which claims it; and, where that is not the case, it requires descriptive words of grant or reservation in the deed to create an easement in favor of one part of a heritage over another." There can be no doubt here that the alley was highly con- venient and beneficial for the enjoyment of the estate granted to Cihak. Gunzenhauser would appear to have made the sub- division he did of his own motion. Wilder was the owner at the time, and lived in Chicago. All that goes to connect him with the subdivision is Gunzenhauser' s statement that Wilder was on the ground several times; helped him to get ofE the squatters; " made no objection to my letting out the land in that way, and was perfectly satisfied." While Henry G. Hub- bard owned the property, he lived in Connecticut, and is not shown to have had any personal knowledge of the subdivision ; and the same with Mrs. E. K. Hubbard. We understand she, too, resided in Connecticut. E. K. Hubbard, her husband, tes- tifies that he resided in Chicago from 1835 to 1885 ; that he had authority from his wife to act on her behalf ; says he thinks his wife had seen the lots; that he saw them, after his wife became owner, perhaps ouce a month ; that he did not recollect consult- ing with any one regarding the subdivision platted and recorded, except perhaps Gunzenhauser. And here the inquiry is sug- gested, why this plat of the subdivision which was made and re- corded at the instance of E. K. Hubbard, and, as Mrs. Hubbard acknowledges, by her direction, comes to correspond precisely with the subdivision which Gunzenhauser made in 1859, and has the same alley of just ten feet wide, exactly as Gunzenhauser staked it out in 1859? It implies knowledge by Mrs. Hubbard of the subdivision, and is evidence tending to show her adoption and confirmation of that subdivision, and of what was done under it. But without further pursuing this branch of the case, or expressing an opinion whether the circumstances of the arrange- ment and use of the alley for the accommodation of this lot of Cihak, and selling the lot with the apparent appurtenance of the alley attached to it, were alone suflicient to give to the grantee of EQUITABLE EASEMENT — TITLE TO ALLEY BY ESTOPPEL. 483 the lot the use of the alley, we come to the conclusion that they were sufficient when taken in connection with the subsequent sales being made subject to the alley. Defendants in error never bought or paid for the alley, or so supposed. In the deeds for lots 1 and 2 the use of the west 10 feet of the lota for a private alley was expressly reserved. And at the time the deed for lots 3 and 4 was made there was upon record the plat of the subdivision showing the alley upon it. True, it is named " Private Alley," and it is insisted by counsel for defendants in error that this means private to the lots from which the alley was taken, — those on the east side of it, — and that it was for their use only. Under other circumstances, of Mrs. Hubbard not being the owner of the ground on the west side of the alley, this might be so. But was it so under the circumstances here? The alley had originally been laid out many years before for the accommodation of Cihak's lot, as well as the other lots, and had ever afterwards been used equally for the accommodation of Cihak's and the other lots. At the time Mrs. Hubbard put the designation " Private Alley " on the plat the alley was being so used, and she was the owner of the ground on both sides of the alley, with a building standing on the west line of the alley con- structed with special adaptation for the use of the alley. The alley was important for the beneficial enjoyment of her lot on the west side of the alley, and must have enhanced its value. There was no apparent purpose why the alley should not be as much for the use of the owner's ground on one side of the alley as on the other side. Under such circumstances, we think the meaning of " private " was that the alley was private to the owner's own ground; that the alley was for the use of the owner's lots only, but of her lots abutting on both sides of the alley, and not for the use solely of her lots on one side of the alley. We give no consideration to the manifestly incompetent testi- mony of E. K. Hubbard, that his wife's intention was to reserve the alley as a private alley for the use of lots 1, 2, 3, and 4. It was not competent for him to swear to his wife's or any one else's intention. All that he might do in such regard would be to testify to acts and declarations as showing intention. The question here is, what others had reason to believe was the inten- tion from the circumstances and the acts done. The alley was an important consideration with Cihak when he purchased. An inspection of the abstract of title did not show the alley of record. This defect was brought to the attention of Gunzenhauser, and, to assure Cihak that he would get with his iot the use of the alley, the plat of the subdivision, with the alley 484 INCORPOREAL HEREDITAMENTS. appearing upon it acknowledged by Mrs. Hubbard, was shown by Gunzenhauser to Cihak ; the former stating that the plat was going to be put upon record. This satisfied Cihak that he would get the benefit of the alley. Gunzenhauser, who made the sale,^ Kaspar, who acted for Cihak, and Cihak, no doubt, all believed that the recording of the plat of the subdivision would secure for Cihak the use of the alley. It did not occur to either of them that the word " private " had any significance as excluding such use. To so construe that word would be to make it but a snare to entrap the one purchasing the lot on the west side of the alley. It would be to give to defendants in error ground which they never purchased, and to rob plaintiff in error of an alley, the use of which he had good reason to believe he purchased as an appur- tenance to his lot. We find enough in the facts of this case to have put the defendants on inquiry, so as to have affected them with notice of the circumstances upon which we rest the right of the complainant to the use of this alley. The judgment of the appellate court and the decree of th& circuit court will be reversed, and the cause remanded to the circuit court for further proceedings in conformity with this, opinion. Scott, J. I do not concur in this opinion. Abandonmeiit — Right of Way — Maintenance of a Drain. Stein V. Dahm, 96 Ala. 481; 11 So. 597. Appeal from chancery court. Mobile County ; W. H. Tayloe, Chancellor. Action by Joseph Stein against John Dahm and another to reopen an alley formerly existing between the lots of the parties, and keep the drain running therein unobstructed by defendant. From a decree dismissing the bill, plaintiff appeals. Decree affirmed as to the alley; as to the drain, the injunction i& reinstated and made perpetual. Stone, C. J. It is assigned as error that the chancellor, after first granting relief to complainant, entertained defendant's petition and granted them a rehearing. The first decree was rendered in vacation, under rule 80 of chancery practice (Code 1886, p. 825). The concluding clause of that rule is in the following language: "When the decree is rendered in vaca- tion, either party may apply for a rehearing by the second day of the next ensuing term of said court." The appli- cation in this case was made " by the second day of the next ensuing term of said court," and the chancellor com- ABANDONMENT — BIGHT OF WAT DRAIN. 485 mitted no reversible error in entertaining it. In fact, we can- not perceive on what ground such order, if applied for in time, could be reviewed in this court. Of course, rehearings are granted under that rule only when the chancellor is induced to change his mind, or comes to doubt the correctness of his first ruling. Once granted, however, the case is left without a decree, precisely as if none had ever been rendered. There is nothing in this assignment of error. If the question were before us, we are not prepared to say we would hold the answer puts in issue the execution of the deed. Exhibit A, so as to cast on complainant the burden of proving its execution. The answer does not deny the execution of the deed. It only denies that Stein became the owner of the lot by virtue of the deed. There are many conceivable ways in which that denial could be made good, notwithstanding the due exe- cution of the deed by Mr. and Mrs. Saucier. We need not suggest them. Neither is there anything in the objection that after granting the rehearing the chancellor gave further time and authority for taking additional testimony. He granted that authority to each party. True, there are strong reasons why chancellors should exercise great caution in such conditions ; but under our practice that is left to the sound discretion of the chancellor, and is not revisable. In the present case the question arose, not on the re-examination of witnesses, but on the examination of witnesses not previously examined. See Bonner v. Young, 68 Ala. 35; Harrell v. Mitchell, 61 Ala. 270. John B. Toulme became the owner of two adjoining lots and bouses in the city of Mobile, known as Nos. "143" and *' 145" on the south side of Dauphin street. Each lot fronted 30 feet on Dauphin street, and extended back from 120 to 130 feet. On each was a two-story brick store, and on the rear of the lots, extending across them, was a two-story brick warehouse or workshop, divided into two compartments, corre- sponding to the divisions of the stores in front. In the rear of each store was a kitchen, and between the stores in front, the warehouses in the rear, and the two kitchens on the sides was an open space, court or yard, which was common to both store- houses. We are not informed how the stores were covered — whether by one common or connected roof or by separate roofs; nor are we informed in what manner the second floors of the houses were constructed — whether they covered the entire area or only that part inclosed within the brick walls, to be presently described. Each store, at the time it was owned by Mr. Toulme, had brick walls entirely around it, but the side wall of No. 142, 486 INCORPOREAL HEREDITAMENTS. next to 145, was bricked up only one story. What, if anything, was above that is not shown, Store No. 145 covered the entire lot, 30 feet wide, from the front, extending as far back as the store extended, inclosed entirely within an outer brick wall. The lot 143 was not po covered. The house on it extended towards 145 some twenty-two feet, leaving a space or alley- way nearly or quite eight feet wide between the two stores. This extended, with the brick wall on either side, from end to end of the stores, and had double door shutters at each end. These were usually kept open in the daytime, and the alley was a common passway for persons going to and from the rear of either of the storehouses; and there was a common drain or sewer through this alley way, which conducted the accumulated water from the common back yard to the gutter in front of the stores. At the time we are speaking of, which was prior to 1860, one Werborn was tenant of the house 143 entire, and of all save the lower story of No. 145. He was an uphol- sterer, and kept a furniture store. In August, 1860, Mr. Toulme executed his last will, and soon afterwards died. The will was probated and established during that year. By his will he devised the two lots and storehouses separately to two of his married daughters, Madeline J. Saucier and Victoire Saucier. The husband of Madeline J. died, and by a second marriage she became Mrs. Breath. The devise to Madeline J. was No. 143, describing it as "measuring thirty feet front," being the east half of said lot of land. To this devise he added the following clause : " That part now devised hath thereon a two-story brick house with a kitchen, a tWo-story privy, and the half of a two- story warehouse in the yard, and the right of way through an alley or passage from Dauphin street to the yard in the rear of said property." Lot and house No. 145, " measuring thirty feet front on Dauphin street, and running back as the other," he devised to Victoire Saucier, and added as part of the devise " the right of way through the alley or passage from Dauphin street to the yard, as aforesaid." Soon after the death of Mr. Toulme, Werborn became the tenant by a long lease of each of said stores, occupying the upper story of 145 as a residence, and using the entire house 143, the warehouse or workshop, and the lower story of 145, in his business as an upholsterer and furniture merchant. He continued to so occupy the two proper- ties under renewals of lease, until a very short time before the filing of this bill, August 1, 1890. Between 1860 and 1870— probably about 1866 — a very material alteration was made in the store No. 143 and the alley-way, and in the connection of the two houses. That alteration was made at the request of Mr. ABANDONMENT — RIGHT OP WAT — DRAIN. 487 Werborn, and under his direction, but with the consent and at the expense of the owners of the property, the two devisees under Mr. Toulme's will. It consisted, so far as is material to this suit, in the following : The entire brick wall of No. 143, which adjoined the alley-way, was taken down, and iron supporting columns were substituted in its stead ; and the floor was extended entirely across the alley-way, and to the wall of 145. In this way that floor and the store room were made to cover the entire thirty feet. The front door of the alley was removed, and the entire space filled and closed with a costly show window and towards the rear of what had been the alley-way a broad staircase was con- structed from the first to the second floor — this for the purpose of reaching the second story of 143, The two stores remained in this condition when this bill was filed, except that two or three years before that time a plank wall or parti- tion, extending from column to column, had been erected on the line of the removed brick wall of No. 143. It is not shown, however, that the sewer or waste escape from the back yard to the front, through the alley-way, had never been obstructed. It is supposed it had never been left to flow under the floor of the closed alley-way. In February, 1876, Victoire Saucier and her husband sold and conveyed her house and lot, 145 Dauphin street, to Joseph Stein. The deed contains the usual full cove- nants of warranty. It describes the property sold as a lot front- ing 30 feet, bounded on the east by property of Mrs. Breath. It gives no expression of the easement or right of way claimed, but conveys the property, " together with the tenements, here- ditaments, rights, members, privileges, and appurtenances." After the execution of that deed. Stein became the landlord of Werborn of the property so conveyed, and so continued until the latter ceased to occupy it, November 1, 1889. In June, 1879, Madeline J. Breath and her husband sold and conveyed to John Dahm storehouse and .lot No. 143 Dauphin street. Like the other deed, it describes and conveys the lot as fronting 30 feet on Dauphin street, and gives as its western boundary the lot sold and conveyed by Victoire Saucier and her husband to Stein ; conveys with full covenants of warranty, " together with the tenements, hereditaments, rights, members, privileges, and ap- purtenances." It makes no mention of the alley-way, or of any easement therein, but does refer to the will of Jier father as the source of her title. From this time forth Dahm became the landlord of Werborn of the property so purchased, and so con- tinued as long as the latter occupied the store. The present bill was filed by Stein, and seeks to reopen the alley, and to 488 DfCOEPOKEAL HEREDITAMENTS. establish his common right to it as a way of ingress and egress to and from the rear of his property. He also seeks to establish his right to have the sewer or waste way through the alley kept open and unobstructed. On the second hearing the chancellor dismissed the bill. There can be no question that when the two sisters became the separate owners of the separate lots and stores there attached to 145 the right of way and easement in the alley-way as it then stood, which is claimed in the present suit. Mr. Toulme's will clearly proves that. Of this easement, 143 was the servient, and 145 the dominant, estate. Has that right been surrendered or lost? The two sisters, Mrs. Saucier and Mrs. Breath, were examined as witnesses. Each testified that the alterations and improvements closing up the alley-way were made in 1865 or 1866; that they were made at the request of Werborn, but with their knowledge and consent, and at their expense. Mrs. Breath testified that Mrs. Saucier gave her consent at the time that the alley should be closed up, and each testified that its use as a passageway was then and there entirely and forever abandoned. This Mrs. Saucier testified to as a fact. She also testified that it was her intention at the time to surrender and abandon all claim to the alley as a passageway, but this, being objected to, was illegal evidence. Uncommunicated intention cannot, under our rulings, be made the subject of direct proof. Ball v. Farley, 81 Ala. 288; 1 South. Rep. 253; Burks v. Bragg, 89 Ala. 204; 7 South. Eep. 156 ; Railway Co. v. Davis, 91 Ala. 615, 8 South. Rep. 349. The fact of consentive closing up of the alley, and the fact of abandonment, were competent proof. This, according to the testimony, was done about 10 years before Stein pur- chased, and about 13 years before Mrs. Breath sold to Dahm. It was more than 20 years before this suit was brought, and be- fore any complaint is shown to have been made by Stein. That great jurist. Chief Justice Shaw, in Dyer v. Sanford, 9 Mete. (Mass.) 395, 401, said: " If the owner of the dominant grants a license to the owner of the servient tenement to erect a wall which necessarily obstructs the enjoyment of the easement, and it is erected accordingly, it may amount to proof of an abandon- ment of the easement. It is not a release, because it is by parol. But it results from the consideration that a license, when exe- cuted, its not revocable: and if the obstruction be per- manent in its nature, it does de facto terminate the enjoyment of the easement." lu Pope v. Devereux, 5 Gray, 409, this principle was declared: " Evidence of an executed oral agreement between the owners of the dominant and servient tenements to discontinue an old way, and substitute a different ABANDONMENT — BIGHT OF WAT DRAIN. 489 one, is competent evidence of the surrender of the old right of way." And in Ballard v. Butler, 30 Me. 94, is this language: «• When the person to whom a servitude is due does an act which is incompatible with the nature and exercise of it, the servitude is thereby extinguished." It is said in 2 Washb. Real Prop. *57 : " There are many acts of abandonment, short of a nonuser for twenty years, which if done by the owner of the dominant tenement, and acquiesced in by that of the servient, may amount to a surrender of such an easement, provided such acts of aban- donment have been done with such intention." In 6 Amer. & Eng. Enc. Law, 147, is this language : " Abandonment will be presumed from various acts of the dominant owner; as, for example, where the holder of the right does, or permits to be done, any act inconsistent with the future enjoyment of the right." See, also, notes, 3 Kent Comm. *448, *449; King v. Murphy, 140 Mass. 254 ; 4 N. E. Rep. 566 ; Corning v. Gould, 16 Wend. 531. In 2 Wait Act. & Def. 680, it is said : " A use which had been abandoned or disused at the time of the sale would not come within the conditions above given [transfer of the easement by a sale and conveyance of the dominant estate], and a right which did not then legally exist, although it might have had a previous existence, would not be re- vived without expres words." If it be objected that the removal of the door shutters and substitution of the show window, the extension of the floor of 143 across the alley- way, and the construction of the stairway in what had been the alley, were none of them of a permanent character, but all might be restored to their former condition, and at trifling expense, without injury to the properties, what will be said of the re- moved brick wall which separated the store No. 143 from the alley-way? All the alterations were made at one and the same time, and with the knowledge and consent of both landlords, and at their expense. All were made in execution of a common design and purpose. Can it be supposed that mutual consent would have been given, and the necessary expense shared in, if at the end of a term original conditions were to be re-established, and store 143 left without a wall to separate and protect it from the open alley ? We hold that the testimony very fully proves that the right of way through the alley, which pertained originally to the lot and store 145, was surrendered and abandoned when the alterations were made in 1865 or 1866. This was long be- fore the present owners. Stein and Dahm, had any interest in or claim to the several properties; and consequently Stein, by his purchase, acquired no right to use the alley as a passway to and from the rear of his property. We think, however, that the 490 INCOKPOEKAL HEBEDITAMENTS. sewer or waste way which runs through or under the alley, and drains the common back yard, rests on a different principle. It is not proved that it has ever been obstructed or discontinued. We infer from the circumstances that it flows under the floor which was extended from 143 across the alley. This being the case, the record fails to show an abandonment of this part of the easement, and it follows that this right still pertains to 145. So far as the right of ingress and egress through the alley-way is concerned, the decree of the chancellor is affirmed. The bill charges that defendant Dahm claims the right to close the sewer through and under what was formerly the alley, and that he intends and threatens to close that drain or outlet against complainant. The answer admits this charge to be true. We hold that complainant is entitled to an injunction on this feature of the case made by his bill. It is therefore ordered and decreed that the decree of the chancellor be to that extent reversed, and this court, proceeding to render the decree the chancellor should have rendered, doth order and decree that the injunction, so far as it restrained the closing of the sewer or drain, be reinstated and made perpetual. Let the complainant, Stein, pay three- fourths of the costs of the original suit and one-third of the costs of appeal ; and the remaining costs — that is, one-fourth of the costs of the original suit and two-thirds of the costs of the appeal, alike in the court below and in this court — are adjudged against Dahm. the appellee. Reversed and rendered. Wben IN'on-User Will Extingrnlsli an Easement. Edgerton v. McMallan, 55 Ean. 90; 39 F. 1021. Opinion by Allen, J. This was an action of trespass brought to test the title of the defendants below (plaintiffs in error in this court) to a right of way over a certain strip of land described in the petition. The case was tried before a judge 2>'''o tern. It was admitted at the trial that the land was conveyed by patent from the United States to Harriet W. P. McMuUan, that the plaintiff's were her sole heirs, and that the defendant, under a claim of right, as presi- dent of the Wyandotte Town-Site & Improvement Company, went upon the strip of land in question, and cut down trees for the purpose of opening up said strip of land as a road. The plaintiffs introduced a deed from Henry M. McMnllan and Har- riet W. P. McMullan to Mary A. Mather, dated September 6, 1860, conveying a four-acre tract of land therein described, *' with the privilege of a road two poles wide on the north and east WHEN NON-USEE WILL EXTINGUISH AN EASEMENT. 491 lines of the above-described premises." The defendants offered in evidence a deed dated August 16, 1882, from Samuel F. Mather and Mary A. Mather to B. D. Hoag, trustee. It was admitted that Hoag was trustee for the Wyandotte Town-Site & Improvement Company, to which he afterwards conveyed the property. There was evidence showing that there had been public travel along a part of the land in dispute for a time ; that a hedge fence was put out near the north line of the land conveyed to Mrs. Mather, 30 feet from the north line of the McMullan allot- ment, about 25 years before the trial of the action. The strip was open at the end until about two years before the com- mencement of the action, when it was fenced up by the plain- tiffs below. The land had not been occupied for any purpose, but allowed to grow up in trees. The court made the follow- ing special findings of fact and conclusions of law : — "(1) That prior to the 6th day of September, 1860, Har- riet W. P. McMullan was the owner of the land in contro- versy, in fee simple. (2) That on said date she sold to Mary A. Mather lands adjoining the lands in controversy, and with the privilege of a road two poles wide over and along the land in controversy ; that about the year 1869 or 1870 the said Mary A. Mather fenced in her land, building along the south line of the land in controversy, and the north line of the land that she pur- chased from the said Harriet W. P. McMullan, an osage orange hedge; that at or about that time there was a fence upon the north line of the land in controversy, and upon the east and west ends thereof ; that from that time up to the time the plaintiffs built the fence around the land that is hereinafter men- tioned, said land was not used as a road, but was allowed to grow up with bushes and trees. (3) I further find, as a matter of fact, that said Mary A. Mather never claimed any interest in said land ; that when she planted said hedge she abandoned and gave up any right that she had in the easement granted by said deed. (4) That the said Harriet W. P. McMullan is dead, and that the plaintiffs are her sole and only heirs. (5) That, some time during the year 1886, plaintifi^ built a valuable fence upon both sides and both ends of said land in controversy; that the defend- ants tore down and destroyed said fence, and cut trees thereon ; that the damage so done was one dollar. "Conclusions of law: I find, as a conclusion of law, that plaintiffs are entitled to recover herein, in the sum and amount of one dollar, together with their costs." Thereupon the court rendered judgment in favor of the plain- tiffs for one dollar. The certificate of the judge who settled the case states that the action involves the title to real estate. 492 INCOEFOREAL HEEEDITAMENTS. The trial court held that the evidence showed an abandonment by Mrs. Mather of her right to an easement over this land.. The only evidence to support that claim is that showing that she placed a hedge fence along the north line of the land conveyed to her in fee simple, which was the south line of the tract in controversy, thus excluding from her in- closure the strip two poles wide, or nearly that amount, and that she never actually used the land for a road. The evidence of Dr. Mather, her husband, shows that she had no use for the roadway, but contemplated laying the land out into lots at some time. The law is well settled that mere non- user of a right of way granted by deed does not constitute an abandonment of the right. In Washb. Easem., p. 717, the author says: " If the easement has been acquired by deed, no length of time of mere nonuser will operate to impair or defeat the right. Nothing short of a use, by the owner of the premises over which it was granted, which is adverse to the enjoyment of such easement by the owner thereof, for the space of time long enough to create a prescriptive right, will destroy the right granted." So in Day v. Walden, 46 Mich. 575; 10 N. W. 26, Judge Cooley, delivering the opinion of the court, says : " The right to the easement was not lost by the mere neglect to assert, use, and enjoy it for the period of twenty years. There is no doubt of this, upon the authorities. The easement was created by grant, as an appurtenance to the mill ; and there were no conditions or limitations attached which rendered its use neces- sary to its continuance. The grant was perpetual, and without conditions, and therefore the privilege granted would continue indefinitely, whether the grantee did ordid not avail himself of it. An accepted grant cannot be waived or abandoned, and the neglect of the grantee to enjoy the easement would be no more signifi- cant in its bearing upon his rights than the neglect to enj'oy the freehold to which the easement was appurtenant." To the same effect are Eiehle v. Heulings, 38 N. J. Eq. 20; Lindeman v. Lindsey, 69 Pa. St, 93. There is no evidence in the record of any act of the plaintiffs inconsistent with the right of the defend- ants and their grantors until the strip was fenced up at the end. Even this could hardly be said to amount to such a hostile asser- tion of right adverse to the defendants as would set the statute of limitations running against their deed. The defendants neither had nor claimed to have, by virtue of the deed to Mrs, Mather, the full title to the land. They were under no obliga- tion to use the easement until they desired to do so, nor were they bound to take any action to protect their rights so long as there was no occupancy of the land inconsistent with them. EIGHTS OF MILL OWNERS IN STREAM OP WATER. 493 While the deed from Mrs. Mather to Hoag does not specifically mention the right of way, it grants the land and appurtenances thereto. There is no question that this easement was appurte- nant to the land, and passed to the grantee of Mrs. Mather. The judgment is reversed, with direction to enter judgment, on the special findings and undisputed facts of the case, in favor of the defendants. All the justices concurring. Bights of Mill Owners in Stream of Water. FMUips V. Sherman, 64 Me. 171. Appleton, C. J. The defendant is the owner of a grist mill and privilege situate on a stream issuing from Hebron Pond in Monson. The evidence shows that in 1820 a dam and grist mill were erected at the outlet of said pond. In 1841 the then owner of the privilege rebuilt and enlarged the grist mill and deepened the channel thereto. Formerly fifty bushels of wheat and corn were daily ground at this mill. More recently the number has been reduced to a daily average of about twenty bushels. The consequence is that a much less quantity of water is now vented than formerly. The plaintiff's mill and dam situated some distance below, on the same stream, was built in 1844. The defendant's privilege and dam have been occupied and enjoyed by him and those under whom he derives his title for a much longer period than is neces- sary to acquire an adverse title by prescription. Without de- tailing the evidence, we think it is satisfactorily proved that the defendant has all the rights which prior occupancy can give as well as those which can be acquired by prescription, so far as regards the height of his dam. The defendant then has a right to keep and maintain his dam at its present height with all water necessary to propel his machinery. But of this the plaintiff makes no complaint. The defendant claims the right to retain water not needed in any way for the use of his mill, nor necessary for its full enjoyment, and to the loss and injury of those whose mills are below him on the same stream. The defendant, owning the privilege above, and being the first occupant upon the stream, has a prior right to all water the nec- essary to propel his machinery. But while this right is sustained and protected he must use the water in a reasonable and proper manner, having regard to the like reasonable use by all the pro- prietors above and below. He cannot unnecessarily, and at his own will and pleasure, detain the water an unreasonable length 494 INCOEPOEEAL HEEEDITAMENTS. of time, nor discharge it in such excessive quantity that it'would endanger those below. Every owner of mills above is required so to use the water that every riparian proprietor below shall have the enjoyment of it substantially, according to its natural flow, but subject to the necessary and unavoidable interruption arising from its reasonable and proper use by the ,privilege above. It cannot be unnecessarily and wantonly detained. Each riparian proprietor on a running stream, whether above or below, has a right to the reasonable use and enjoyment of the water, and to the natural flow of the stream, subject to such dis- turbance and the consequent inconvenience and annoyance as might result to him from a reasonable use of the waters by others. The owner of a mill and dam has a right to the reason- able use of the water, but he must detain it no longer than is necessary for its profitable enjoyment, and then return it to its natural channel. A wanton or vexatious or unnecessary deten- tion would render the mill-owner so detaining liable in damages to those injured by such unlawful detention. Hetrich v. Deachler, 6 Barr, 32 ; Davis v. Winslow, 51 Maine, 264; Davis v. Getchell, 50 Maine, 602. In all these cases the question is whether or not the use has been reasonable. Thurber v. Martin, 2 Gray, 396 ; Pool V. Lewis, 5 American Kep. (41 Ga. 162) 526 ; Holden V. Lake Co., 43 N. H. 654; Washb. an Easements, 268; Spring- field w. Harris, 4 Allen, 496. So far as the defendant or those under whom he derives his title have by artificial means improved the stream, those improve- ments inure to the benefit of those below. The result is that the defendant has a right to use the water in his pond for the run- ning of all the machinery upon his dam. Has a right to detain it when required for the reasonable use of his mill. His rights are prior and superior to those of the plaintiff. But he cannot be permitted, in mere wantonness, to detain water not to be used, and of which there is no need whatever in the running of his mill. The question of reasonable use of the water is one of fact, to be determined by the jury. The parties have referred that question to the court. Upon the whole evidence we are of the opinion that the defendant has unreasonably withheld water, neither necessary nor required for the use of his mill. Accord- ingly there must be judgment for the plaintiff for $25 damages. Conflicting Wells — Subterranean Currents — Pollution. Collins ». Chartiers Val. Gas Co., 131 Pa. St. 143; 18 A. 1012. Mitchell, J. The dividing line between the right to use one's own, and the duty not to injure another's, is one of great CONFLICTING WELLS — SUBTERRANEAN CURRENTS. 495 nicety and importance, and frequently of difficulty. The Pennsylvania decisions have endeavored with unusual care to preserve the substance of both rights, as far as their sometimes inevitable conflicts may permit. With regard to the use and control of flowing water and of water-courses, the case of Coal Co. V. Sanderson, 113 Pa. St. 126; 6Atl.Rep. 453; definitively settled the rule that for unavoidable damage to another's land, in the lawful use of one's own, no action can be maintained. No other result seems possible, without restricting the uses, dero- gating from the full enjoyment, and diminishing the value of property. But the rule does not go beyond proper use and un- avoidable damage. It is thus clearly expessed in the opinion of our Brother Clark: " Every man has the right to the natural use and enjoyment of his own property ; and if, while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria." 113 Pa. St. 146 ; 6 Atl. Rep. 457. That this is the rule as to surface streams was conceded by the defendants below ; but they contended that as to subterranean waters, or at least as to percolations and hidden streams, an owner was not bound to pay any attention to the efiect of his operations within his own land upon the land of others. The learned judge below, though seeing and expressing the force of the reasons for a uni- form rule applicable to both classes of waters, felt himself so far constrained by adjudicated cases that he directed a verdict for the defendant. We have therefore to examine the cases to see what the true distinction is between surface, or visible, and sub- terranean waters, and whether different principles are applicable to the rights in them, respectively, or the same principle, with only such modifications as may be necessary in practical appli- cation. In Wheatley v. Baugh, 25 Pa. St. 528, the plaintifp had a spring upon his property, which he had used in his tannery for more than 21 years, when the defendant opened a mine on his adjacent land, and put in a steam-pump to take outthe water, with the result of drying up the plaintifi"s spring. It was held that plaintiff had no cause of action. This case settled the law on the subject of percolating waters, and has not since been questioned. It was followed in Haldeman v. Bruckhart, 45 Pa. St. 514, but was restated rather narrowly by Justice Strong, thus: " In that case it was ruled that where a spring depends for its supply upon filtrations or percolations of water through the land of an owner above, and, in the use of the land for mining or other lawful purposes, the spring is destroyed, such owner is not liable for the damages thus caused to the proprietors of the spring, unless 496 INCORPOREAL HEREDITAMENTS. the injury was occasioned by malice or negligence. To sucb percolations or filtrations, then, the inferior owner has no right. This was all that was necessary to the decision of the case." He then criticises the rest of the opinion in Wheatley v. Baugh as dictum, and formulates the rule again in the following terms : " A proprietor of land may, in the proper use of his land for min- ing, quarrying, building, draining, or any other useful purpose, cut off or divert subterraneous water flows through it to the land of his neighbor, without any responsibility to that neighbor." These forcible statements of the rule are, as I apprehend, the main ground of the contention on behalf of the defendant in the present case, — that an owner is not bound to pay any regard to the effect of his operations on subterranean waters. But this contention overlooks the qualification made in all the cases, — that there must be no negligence. The opinion of Chief Justice Lewis in Wheatley v. Baugh is as able, elaborate, and convincing a discussion of the subject as can be found re- ported, and in it the necessary and unavoidable character of the damage is explicitly insisted on: "When the filtrations are gathered into sufficient volume to have an appreciable value and to flow in a clearly-defined channel, it is generally possible to see it, and to avoid diverting it without serious detriment to the owner of the land through which it flows. But percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land." Page 532. " The owner of a spring, although his right is imperfect where- the supply is derived through his neighbor's land, has nevertheless a privilege subor- dinate only to the paramount rights of such neighbor ; and it is only when the fair enjoyment of those paramount rights requires its destruction that he is bound to submit to the deprivation." Page 535. And even in Haldeman v. Bruckhart, which is the most strongly expressed of all the decisions in favor of the rights of the proprietor on his own land, it is clear that the same qualification is not lost sight of, although not prominently put forward. "A surface stream," says Strong, J., " cannot be diverted without knowledge that the diversion will affect a lower proprietor. Not so with an unknown subterraneous percolation or stream. One can hardly have rights upon another's land which are imperceptible, of which neither himself nor that other can have any knowledge. * * « These appear to us very sufficient reason for distinguishing between surface and subterraneous streams, and denying to inferior pro- prietors any right to control the flow of water in unknown sub- terranean channels upon an adjoiner's land. They are as appli- CONFLICTING WELLS SUBTERRANEAN CURRENTS. 497 cable to unknown sub-surface streams as they are to filtrations and percolations through small interstices." And in Lybe's Appeal, 106 Pa. St. 634, it is said : " The rule is that, wherever the stream is so hidden in the earth that its course is not dis- coverable from the surface, there can be no such thing as a pre- scription in favor of an adjacent proprietor to have an uninter- rupted flow of such stream through the land of his neighbor." On the other hand, where the subterranean water is not hidden, but has a defined flow, which is known or ascertainable, rights in it will be treated on the same basis as rights in a surface stream. Whetstone v. Bowser, 29 Pa. St. 59. It is therefore clear, from the principles and the reasoning of all the cases, that the distinction between rights in surface and in subterranean waters is not founded on the fact of their location aboveor below ground, but on fact of knowledge, actual or rea- sonably acquirable, of their existence, location, and course. The principle of Coal Co. v. Sanderson is precisely the same as that of Wheatley v. Baugh, and is of general application. It is that the use which inflicts the damage must be natural, proper, and free from negligence, and the damage unavoidable. On the question of negligence, the question of knowledge is always im- portant, and may be conclusive. Hence the practical inquiry is — First, whether the damage was necessary and unavoidable; secondly, if not, was it sufficiently obvious to have been foreseen, and also preventable by reasonable care and expenditure? In Coal Co. V. Sanderson the damage was unavoidable. In Wheat- ley V. Baugh it was not ascertained beforehand; hence the plain- tiff had no cause of action in either case. Later cases, following Wheatley v. Baugh, have held that injury to springs, wells, etc., supplied by more percolation, was not actionable; and the reason has always been the same, — that the damage could not be fore- seen or avoided. If the boundaries of knowledge have been so enlarged as to make an end of the reason, then cessante ratione, cessat ipsa lex. Geology is progressive, and now, in many re- spects, a practical science ; and, as truly remarked by the learned judge below, in his opinion on the njotiou for a new trial, " since the decisions in Acton v. Blundell, 12 Mees. & W- 324, and Wheatley v. Baugh, probably more deep wells have been drilled in Western Pennsylvania than had previously been dug in the entire earth in all time. And that which was then held to be necessarily unknown, and merely speculative, as to the flow of water underground, has been, by experience in such cases as this, reduced almost to a certainty." If this is the state of knowledge at the present day; if the existence of a stratum of clear water, and its flow 32 498 INCOEPOEEAL HEREDITAMENTS. into wells and springs of the vicinity, and the existence of a separate and deeper stratum of salt water, which is likely to rise and mingle with the fresh, when penetrated in boring for oil or gas, are known, and the means of preventing the mixing are available at reasonable expense, — then, clearly, it would be a violation of the living spirit of the law not to recognize the change, and apply the settled and immutable principles of right to the altered conditions of fact. The learned judge, in his charge, said: "There is evidence from which the jury could fairly find that the defendant, when the well was drilled, knew, or oughttohave known, if they had exercised any reasonable judg- ment, or to investigated or paid attention to it, that the boriugof this well in the way it was done, without shutting off the salt water from the fresh water, would almost inevitably ruin these and other wells in the immediate vicinity. And I think there is evidence from which the jury could fairly find that the defend- ant could, with the outlay of a small amount of money, have shut off the salt water from the fresh water so that it could not have done any injury." If the jury had found the facts as this charge assumes that they fairly might, on the evidence, then the plaintiff had made out a case of negligence, and was entitled to recover. Negligence in this sense is the absence of such care and regard for the rights of others as a prudent and just man would and should have in the same situation. If the plaintiff showed that the injury was plainly to be anticipated, and easily preventable with reasonable care and expense, he brought himself within the exception of all the cases from Wheatley v. Baugh to Coal Co. v. Sanderson, in- clusive. It may be well to say that, in cases of this nature, juries should be held with a firm hand to real cases of negligence within the exception, and not allowed to pare down the general rule by sympathetic verdicts in cases of loss or hardship from the proper exercise of clear rights. The danger of such result is not to be ignored, but we cannot on that account shut the door to suitors entitled to redress for genuine wrongs. The duty to maintain the line firmly where justice and law put it is in the first instance, and chiefly, upon the trial courts. Judgment reversed, and venire de novo awarded. Party Wall — Use of Same — Construction of Contract for Building tbe Same. Fox V. Mission Free Scliool, 120 Mo. 349; 25 S. W. 172. Appeal from St. Louis circuit court; James E. Withrow, Judge. CONSTRUCTION OF CONTRACT FOR BUILDING PARTY WALL. 499 Action by Hugh L. Fox against the Missouri Free School on a party-wall contract. Judgment for defendant. Plaintiff appeals. Affirmed. Macfaklane, J. Plaintiff and defendant were the owners of contiguous lots, fronting, each about 65 feet, on the south side of St. Charles street, in the city of St. Louis, and extending bacls south about 111 feet to an alley. Previous to making the contract which is the basis of this suit, a three-story brick build- ing, of the full width of the lot, and extending back to within about 7 feet of the alley, stood upon defendant's lot. This building was leased and used as a gymnasium. The 7-foot space between the building and the alley was occupied by one-story structures. About 40 feet on the east was constructed of brick, and used for an engine and boiler room ; and the remaining por- tion, about 25 feet, on the west, and adjoining plaintiff's build- ing, was built of wood, and was used for storing coal. The first and second stories of the main building were, for the convenience of the gymnasium, used as one. Plaintiff previously had a three- story building covering width of his entire lot. On the dividing line of these lots there was no parting wall, but each building was supported by its own wall, built wholly on the land of the respective owners. Plaintiff, with a Tiew of erecting a seven-story building on his lot, had re- moved his building therefrom, and proposed to defendant the erection of a partition wall between their lots. Negotiations re- sulted in a written contract, dated July 31, 1888. This contract recited first the respective ownership of the contiguous lots, de- scribing each ; that plaintiff was about erecting upon his lot a store house building, seven stories in height above the basement ; and that it was desired by the parties that the east wall of said building so to be erected should be a party wall, " and that the center line thereof should be coincident with the division line be- tween the two adjacent lots," and, in consideration of the prem- ises, it was agreed as follows : " That Fox shall construct the east wall of his said proposed building at his own cost and ex- pense, so that the center or middle line of said wall shall cor- respond and be coincident with the line dividing the lots afore- said of the parties, and that said wall shall be of the dimensions, materials, and constructed in the manner following, viz." Then follow the specifications for building the wall, which was to ex- tend the whole length of the line, to be of brick, 25 inches thick for a height of 33 feet, thence up 23 inches thick for 28 feet, thence up 18 inches thick for 26 feet, and thence up 13 inches thick for the remaining distance; "one smoke flue to be built in said wall, and in every story to have a thick- 500 INCORPOREAL HEREDITAMENTS. ness of 13 inches between flue and outside surface of wall j and no other flues, slats, or chaces to be built or cut in the wall by said Fox." These provisions were then agreed upon : " That the said wall so constructed as aforesaid, shall be used in com- mon by both of the parties hereto, and their respective heirs, successors or assigns, as a ' party wall ' for the support of the said building, or any addition thereto, so about to be erected by said Fox, and of any building which said party of the second part, its successors or assigns, may at any time hereafter erect upon the premises so owned by it as aforesaid : provided, however, and said party of the second part stipulates and agrees, that when- ever it shall make use of said ' party wall ' as a wall, and for the support of any building which may hereafter be constructed on its said premises, it shall pay to the said Fox, or his assigns, before making such use thereof, the sum of three thousand and forty-four dollars and eighty cents ($3,044.80). It is further agreed that either of said parties, at his or its own cost and expense, may alter, tear down, and rebuild, reconstruct, or add to the said party wall, in the event the same be rendered neces- sary at any time by fire, accident, casualty, or decay; pro- vided, however, that the party so doing the same shall give to the other party ten days' written notice of the intention so to do, and shall hold the other harmless and indemnified against any loss or damage resulting therefrom. It is understood, how- ever, by the parties hereto, that this agreement does not authorize said Fox to erect said wall, or in any manner to impair or afi"ect the rights of the Missouri Gymnastic Society under its lease of the said premises owned by said party of the second part, dur- ing the unexpired term of said lease, without consent thereto of said lessee being first obtained by said Fox." The suit was upon this contract. The petition charged that plaintifl" had built the wall according to agreement, and without in any manner impairing or affecting the rights of the gymnastic society, the tenants of defendant. " That in constructing said wall the plaintiff left openings therein for the joists or timbers of the building on defendant's lot occupied by said Missouri Gymnas- tic Society, and with the knowledge and consent of said Missouri Gymnastic Society, and of the defendant herein, inserted the joists or timbers supporting the said roof and building of said Missouri Gymnastic Society, and then and now owned by the defendant, the Mission Free School. That thereafter the said defendant did, by its agents and employees, erect a new bricls: building on the rear of its said lot, and in such erection did make use of said party wall as a wall, and for the support of such new brick building; and by its agents and employees did CONSTRUCTION OF CONTRACT FOR BUILDING PARTY WALL. 501 Teconstruct the old building on said premises, owned by it, and formerly occupied by the said Missouri Gymnastic So- ciety, and in such reconstruction did make use of said party wall as a wall, and for the support of said reconstructed build- ing. Plaintiff further states that in reconstructing the said old building the said defendant, by its agents and employees, ' an- chored ' or ' tied ' the walls of said reconstructed building into the said party wall, for the purpose of obtaining support for said reconstructed building, and said reconstructed building is BOW sustained and supported, in whole or in part, by said party wail. And plaintiff further alleges that said party wall is now being used, in whole or in part, by the said defendant, or its agents and employees, as a party wall, and for the support of the said new brick building aforesaid, and for the support of said reconstructed building, which latter plaintiff avers is to all intents and purposes a new building, within the meaning and purview of said contract." Judgment was prayed for $3,044.80 and interest. The answer was a general denial. On the trial the execution of the contract, and the proper construction of the wall according to contract, was not called into question. It was shown that defendant's old wall was taken out in order to make way for the party wall, and the building was properly supported until attached to the party wall, which there- after supported it. The third story of the south end of defend- ant's building was of corrugated iron, the first and second stories were of brick, but were cracked and weak. The front or north wall, from about six feet east of the party wall, was cracked from the top down, perpendicularly, to the base stone of the lower window. This crack was from a half to three-fourths of an inch in width, and in consequence the wall leaned toward plaintiff's lot. Where the party wall was completed, the outside, which became the inside wall of defendant's building, presented the usual appear- ance of a rough, outside brick wall. The gymnastic society occupied defendant's building for two years after the wall was built, after which it was rented to A. C. Wickham for a bakery and restaurant for a term of ten years. The tenant was author- ized to make permanent improvements and additions, and to make repairs on the premises at his own expense. Wickham proceeded to make repairs and improvements on the property in order to adapt it to his proposed uses. In order to repair the crack in the front wall he began at the cornice of the building, at the top of the wall, and removed the wall down to the base stone of the lowest window near the sidewalk. This left a por- tion of the wail standing between the breach thus made and Fox's party wall. He took off the top of that portion of the wall. 502 INCOKPOREAL HEREDITAMENTS. down to a level with the top of the highest window, leaving an open space just below the cornice, over to the party wall. He then rebuilt the breach up to the top of that window, and up to the open space running over to Fox's wall, and then built a solid wall across the breach above the window to the party wall. He then out out a portion of the party wall 16 inches one way and 20 inches the other. The depth of this incision is not shown by the evidence. In this incision was carried the top of Wickham's new wall, just beneath the cornice, with cemented bricks, where it was held. He plastered the party wall from the ceiling to the floor. The plaster had a white finish. He placed and supported wainscot- ing on this wall the full length of the room. He hung gas fix- tures and coat and hat racks on it, and fastened to it brackets underneath the girders, to give the room an oval and dome-like appearance at the ceiling. He constructed a partition across the building in front of the cross wall, which was sustained by being nailed to the party wall. He took out entirely about 30 feet of the north wall, leaving 3 or 4 feet next to Fox's wall to serve the purpose of a pier. Across this opening, from this pier, he threw a girder, to support the brick wall above, so as to leave an open space underneath where there had been previously the solid wall. He removed the old frame coal house altogether, and rebuilt the wall of the old boiler house, which had been in part torn down by the gymnastic society in order to remove their boilers. He then built a brick wall from the west end of this reconstructed wall of the boiler house, along the alley to Fox's party wall, and there dovetailed it with cement joints into the iter- stices of the rubble stone work of Fox's foundation up to the top of that foundation. There he lapped his brick wall over into the top of the foundation of the party wall, which here was an inch and one-half to two inches wider than the party wall ; thus pre- senting a shelf or shoulder of that width, upon which he rested and supported his brick wall. Above the foundation of the party wall this brick wall was joined and bonded to the party wall by cement. The party wall inclosed and formed the west end of this building, which, but for the party wall, would have been open. A new gravel roof was placed on this building, and made water-tight against Fox's party wall by the application of tar paper. These are the facts plaintiffs evidence tended to prove as set up in appellant's statement. At the close of the evidence offered by plaintiff the court directed the jury to return a verdict for defendant. Plaintiff took a nonsuit, and, after an ineffect- ual motion to set aside the same, appeals to this court. The contract is the basis of plaintiff's action, and his ri. Leathers, 123 Ind. 121 ; 23 N. E. 1090. Mitchell, C, J. The facts specially found by the court show,. inter alia, that on the 4th day of February, 1878, James Madi- son Leathers, being the owner of a certain tract of land, exe- cuted a deed, in substance as follows: "This indenture wit- nesseth that I, James Madison Leathers, of Morgan County, in the State of Indiana, convey and warrant to Phebe Tucker Leathers, my wife, and Florence Mabel Leathers and James M. Leathers, Junior, on condition of the support of Phebe T, Leathers, their mother, off of said lands described below, in Morgan County, in the State of Indiana, for the natural love and affection I have for said above parties, the following real estate in Morgan County, in the State of Indiana, to wit." Then foIlGWS a description of the land, the formal attestation clause, and an acknowledgment of the instrument in due form. The court stated, as a conclusion of law, that the above conveyance vested in Phebe Tucker Leathers, wife of the grantor, an estate for life in one-third of the lands described therein, and that the fee to the whole estate was vested in Florence M. and James M. Leathers, charged with the support of their mother. We do not concur in this conclusion. The land is granted to the three grantees therein named in plain and unambiguous lan- guage. The effect of the deed was to vest an estate in fee-simple in the mother and two children as tenants in common, each taking an undivided one-third, and to charge the income from the whole with the support of the mother. Stout V. Dunning, 72 Ind. 343; Williams v. Owen, 116 Ind. 70; 18 N. E. Eep. 389; Commons v. Commons, 115 Ind. 162 ; 16 N, E. Eep. 820, and 17 N. E. Eep. 271. The intention of the parties is what the law addresses itself to in the construction of deeds. WHAT CONSTITUTES NOTICK DEKD NOT RECORDED. 663 but the intention is to be gathered from the language found in the instrument. The entire deed is to be regarded, and when the language is unambiguous, and the intent plainly appears upon the face of the instrument, there remains nothing for the court to do but to give the deed effect according to the terms written therein. There is nothing iu the circumstances of the present case which justifies a construction of the deed so as to give it a meaning different from that which arises upon the face of the instrument. Cross-errors are assigned, and in support of these it is sug- gested that the court committed error in holding certain answers sufficient, because it is said it appears from the answers that the deed in question was never delivered by the grantor in his life- time. The facts pleaded do not sustain this view of the case. It appears from the answers that the deed was duly signed and acknowledged by the grantor in his life-time, and that it was deposited by him with a third person, with instructions to de- liver it to his widow after his death, and that it was delivered to her accordingly Where a grantor signs and acknowledges a deed, and deposits it with a third person, to be delivered by him to the grantee at the death of the grantor, without reserving to himself any right to control or recall the instrument if the deed is afterwards delivered to the grantee the title passes, and the deed ordinarily takes effect, by relation, as of the date of the first delivery. Smiley v. Smiley, 114 Ind. 258; 16 N. E. Eep. 585, and cases cited ; Owen v. Williams, 114 Ind. 179; 15 N. E. Eep. 678. The court erred in its conclusions of law. The judgment is reversed, with costs, with instructions to the court to restate its conclusions of law in consonance with this opinion, and to render judgment accordingly. What Constitutes Ifotice When Deed Is !Xot Recorded. Lindley v. Martindale, 78 Iowa, 379; 43 N. W. 233. Appeal from district court, Polk County ; Marcus Kavanagh, Jr., Judge. Plaintiff filed her bill in equity to set aside a mortgage exe- cuted by Bayard T. Lindley to Mary M. Martindale, to restrain the sheriff from making a deed in pursuance of the foreclosure of said mortgage, and to quiet the title in her to 380 acres of land in Guthrie County, Iowa, conveyed by said mortgage, on the alleged ground that appellant was the owner and in possession of said lands at the time the mortgage was made, and that the same was made without her knowledge or consent. The facts, as 664 THE EBQUISITES AND COMPONENT PAKTS OF A DEED. shown by the evidence, and necessary to be noticed, are that appellant was married to Elwood Liadley prior to 1857, and re- ceived soon after from her father's estate about $500 in money and property, which was used in the family ; that in 1865, her husband gavehera team of horses, which continued to be used in the family as heretofore, until some time after, when the same wereexchanged for 160 acres of wild land, near Stuart, the title to which was taken in her name.and the value of which was materially increased by the <;onstruction of the Rock Island Railroad, so that it was afterwards sold for $33 per acre. With the proceeds of this sale, block 3, consisting of 12 lots, and lot 11, block 17, in Stuart, was pur- chased. A dwelling was erected and occupied by the family on lot 3, and a stone building on lot 11, which was occupied by Elwood Lindley as a drug store. The title to all these lota was taken in Elwood Lindley. In 1874 he conveyed the store prop- erty to the plaintiff and in the same year the plaintiff secured a divorce from him and decree for the title to lot 11 and ail of block 3, the homestead of the family. There being judgments against Elwood Lindley that were liens on part of this property, appellant's brother, John Carter, bought the lots at sheriff's sale, and took mortgages from the appellant, which she afterwatds paid. In 1876 appellant and Elwood Lindley were remarried and lived together until 1884. In 1876 lot 11 was exchanged for 200 acres of the land in question, and in the spring of 1877, a house was built on said land, and occupied by the Lindley family. The title to this 200 acres was taken in Bayard T. Lindley, the son of appellant, who lived with the family and was then about 18 years of age. The family continued to live in said house until the fall of 1884. In 1882, James Cal- lanan sold by contract to Bayard T. Lindley 120 acres adjoin- ing said 200 acres, Elwood Lindley conducting the negotiations ; and in the same year Elwood Lindley contracted with Mr. Com- stock for the other 40 acres in controversy. In 1882, Bayard T. Lindley and his wife executed a warranty deed to appellant for the 100 acres on which the family residence was situated, but which was never placed on record. After his marriage, in 1882, Bayard T. Lindley resided in a house on the land purchased from Callanan. In June, 1884, Elwood Lindley called upon Edward Martindale, agent for his wife, Mary M. Martindale, to secure a loan of $5,000 on all the lands in controversy, and a few days thereafter Edward Martindale visited and examined the lands. Elwood Lindley's family were then residing in the same home, and Bayard T. Lindley on the Callanan tract. The plaintiff had been partially blind since 1865. The management and cultiva- tion of the lands had been by Elwood Lindley, and their son, WHAT CONSTITUTES NOTICE — DEED NOT RECORDED. 665 Bayard Lindley, from the time they were purchased. A loan of $5,000 was consummated on the 12th day of July, 1884, Bayard T. Lindley and his wife executing the mortgage upon the whole of the lands in controversy to Mary M. Martindale therefor. The moneys received by the loan were applied in part in paying for the lands purchased from Callanan and Comstock, and in paying mortgages placed on the other land by B. T. Lind- ley. Bayard T. Lindley lived in the family of his parents on the 200 acres from the time they moved there until his marriage, in 1882, after which he lived on the Callanan land until after the visit of Mr. Martindale. These facts appear with but little, if any, controversy. There is controversy as to whether plaintiff knew that the title to the 200 acres was placed in her son. In her original petition she alleged " that she caused the legal title to said lands, as she purchased the same, to be made out in favor of the said B. T. Lindley, then about eighteen years of age." In an amendment, filed after the cause had been submitted, she alleges that the title was placed in B. T. Lindley •• without the knowledge or consent of either the said B. T. Lind- ley or the said plaintiff," and that neither knew the title was so placed until long afterwards. Also it is questioned whether she knew of the execution of the mortgage to Mrs. Martindale, and whether Martindale was told at the time of his visit to the farm that it belonged to Mrs. Lindley. Plaintiff bases her claim for relief on the grounds that, the title to the 200 acres being vested in Bayard T. Lindley without her knowledge, a trust resulted in her favor, and that he held it in trust for her ; that, she being in actual possession at the time of the execution of the $5,000 mortgage, Mrs. Martindale and her agent were bound to take notice of her rights in the lands; and that, the mortgage being executed without her knowleege or consent, she is not bound thereby. Given, C. [J. 1. Appellee presents several questions as to the state of the record, and as to whether there is an appeal as to the defendant B. T. Lindley. We think the merits of the case are fully presented in the record before us, and, as B. T. Lind- ley has appeared and filed his argument, we have considered the case upon its merits without passing upon these questions. 2. As title to lot 11 (the store-house property in Stuart, which was given in exchange for the 200 acres ) was decreed to plaintiff in her divorce proceedings, we do not inquire back of that in determining whether it was the nlaintiff's means that purchased the 200 acres. 3. The weight of the testimony is in favor of the conclusion that neither the plaintiff nor B. T. Lindley knew at the time of 666 THE REQUISITES AND COMPONENT PAKTS OF A DEED. the conveyance that the title to the 200 acres was placed in B. T. Lindley. She was at the time at least partially incapacitated by blindness from transacting business, and this, as well as most of the other transactions, was managed by her husband with her consent. It is evident, however, that she became aware of the fact that the title was in her son long before the execution of the mortgage in question. Her means having paid for the land, and the title being made to the son without her knowledge, the law will imply a trust in her behalf. 4. The doctrine contended for by appellant, that the purchaser of real estate takes the same charged with notice of the equities of the parties in possession at the time of the purchase, is well settled in this State. Phillips v. Blair, 30 Iowa, 649, and authorities cited. Such possession " must appear affirmatively to have been open, visible, exclusive, and unam- biguous ; such as is not liable to be misunderstood or miscon- strued. 3 Washb. Keal Prop. 284. All these lands had been cared for and cultivated either by Elwood or B. T. Lindley for a long time prior to Mr. Martindale's visit. At the time of his visit, Elwood Lindley, who was negotiating the loan, and his family were residing on the 200 acres, and B. T. Lindley on the Callanan tract adjoining. It would certainly not appear from this state of facts, to one who had been told that the title was in B. T. Lindley, that his mother, Mrs. Lindley, was in the open, visible, exclusive, an unambiguous possession of the land. The reasonable inference would be that B. T. Lindley, who held the title, was in possession. Where husband and wife occupy real estate together, the inference would be, in the absence of further information, that it was the husband's possession. Thomas v. Kennedy, 24 Iowa, 397; Trust Co. v. King, 58 Iowa, 598; 12 N. W. Rep. 595. In this case the question was as to whether the property was in the possession of Mrs. King or her son. The court held that the legal possession was in Mrs. King and her husband. Where mother and son occupy the property, the same inference as to possession does not arise as where occupied by hus- band and wife. In the Case of King, it was shown that at the time and after the mortgage was executed Mrs. King was in the actual possession and occupancy of the property but it was insisted that her possession was not such as to impart notice to the world of her equities. The property consisted solely of lot and dwelling thereon, wherein Mrs. King, her husband, and family resided. The court say it was a legal possession in Mrs. King and her husband. We think the facts in this case fail to show such a possession in the plaintiff and her husband. WHAT CONSTITUTES NOTICE — DEED NOT RECORDED. 667 Instead of a single lot and dwelling we have several parcels of land with different dwellings, lands that had been cultivated and used by others than the plaintiff, and without any apparent authority from her. In Thomas v. Kennedy, supra, there being no building upon the land, the husband was upon the ground assisting and directing, apparently for himself, the fencing and breaking of the land ; no one knowing by any public declaration or act, or otherwise, that the work was being carried on for the wife, nor that the possession taken was for her. The court say: " We are not prepared to hold that under such circumstances third parties would be affected with notice of the wife's posses- sion. In other words, they could as well, and indeed more reasonably presume that the possession was that of the husband as of the wife ; and it would be carrying the doctrine of notice to an unusual extent to hold that the world was, without more, bound to know that he was in possession and making improvements for her." From the facts of the case, one know- ing the relations of the parties and nothing as to title, would infer that Elwood Lindley was in possession, and, knowing the title to be in B. T. Lindley, would infer that he was in possession. It is contended that Mr. Martindale had actual notice that the lands belonged to Mrs. Lindley. Elwood and B. T. Lindley both tes- tified that, at the time Mr. Martindale visited the farm, Elwood Lindley told him, " in substance, that he would find the title all right in B. T. Lindley, but the farm in fact belonged to Mrs. Lindley." This statement is denied by Mr. Martindale. The truth of this matter is not necessarily determined by the number of witnesses. We think the fact that Martindale, a lawyer, versed in such transactions, made the loan as he did for his wife, without any inquiry or action with reference to the rights of plaintiff, satisfies us that he never understood such a statement to be made. We are not convinced that such a statement was ever made to Martindale. We conclude, therefore, that Martin- dale made the loan without any knowledge, actual or constructive, of Mrs. Lindley's equities in the land. 5. Assuming, for the purpose of further inquiry, that Mrs. Lindley's possession was such as to put Mr. Martindale upon inquiry, we inquire whether, in permitting the title and control of the lands to remain in her son, as she did, she is not now estopped from asserting her title as against Mrs. Mar- tindale's mortgage? She permitted her son. Bayard, to culti- vate the lands, and dispose of the crops as his own for some time. The deed to Bayard for the 200 acres was executed Oc- tober 17, 1876. December 7th following, he mortgaged to Farwell for $700; to Helliker, June 1, 1880, $1,200; a second 668 THE REQUISITES AND COMPONENT PARTS OP A DEED. mortgage to Helliker, June 1, 1880, $120; to Dewey, July 18, 1882, $982; and to Martindale, executed June 19, and re- corded July 17, 1884, $5,000. The plaintiff knew of the exe- cution of the mortgage to Farwell December 7, 1876, and thereby learned that the title to the 200 acres was in her son. Bayard, She permitted the title to so remain, and her son to exercise control as he did, and to make these mortgages, without in any way disclosing to the world any claim upon the property. Her husband, whom she had at least permitted to act for her in all matters, with her son, who had the legal title, secured $5,000 of Mrs. Martindale' s money that Went to pay for and remove incumbrances from the lands in question, without any actual notice that Mrs. Lindley claimed any interest in the land. It would be most inequitable to allow Mrs. Lindley, under these circumstances, to enjoy the benefits of this loan without any re- turn to Mrs. Martindale. Mrs. Lindley put it in the power of her son to procure this money from Mrs. Martindale, most of which went into the land. Mrs. Martindale made the loan in good faith, and, if either must suffer, it must be the one who made it possible for Bayard T. Lindley to effect a loan upon the lands which he did not own. These conclusions render it un- necessary to notice other points made in the record. The decree of the district court is affirmed. General Description of Property, when Sufficient. Smith V. WestaU, 76 Tex. 509; 13 S. W. 540. Commissioners' decision. Appeal from district court, Bra- zoria County. Action by T. L. Smith, executor of Thomas G. Masterson, against A. E. WestaU and another, to recover a tract of land. Plaintiff appeals. CoLLARD, J. No specific property is described in the deed to Eowe. The property conveyed is " all that certain tract or tracts, parcel or parcels, of land by me inherited, by, through, or from my deceased parents, Henson G. WestaU, my father, and Harriet WestaU, my mother, situated in the county of Bra- zoria or State of Texas, and all right that I now have, have bad, or may have to any estate or property that is or might be due me, whether real, personal, or mixed, in this county or State." An explanatory clause follows in these words : " This convey- ance is meant to convey and carry with it every possible interest that I now have or may have to any property in this county, or TWO CONFLICTING COMPLETE DE8CKIPTI0NS OP PROPERTY. 669 any other county in the State of Texas." The deed contained a general warranty. It is a general rule that a deed must be construed so as to give effect to all its parts, if it can be done. Hancock Vm Butler, 21 Tex. 804; Pugh v. Mays, 60 Tex. 192; 3 Washb. Eeal Prop. 398. The deed before us makes at least two grants : First, all lands inherited by the grantor from his deceased father and mother, without qualification or restriction ; then, of all other property, real and personal, he owned, had owned, or might own, derived from every source. The next part of the grant was in- tended to declare that every possible interest in any property owned or held by the grantor in the State was to pass. It was intended to enlarge, rather than to limit, the grant. It was not intended as a more particular designation of the property, and to limit the conveyance to such estate only as the grantor then owned, or to have the effect of quitclaiming the property. It is insisted by appellant that Rowe was not an innocent pur- chaser, because the consideration paid by him was an antecedent debt. The fact stated is true, that the consideration was a debt due to Rowe; but it was not a debt due by Westall, but a debt due by one Bates to Rowe, — Bates at the same time surrender- ing to Westall a claim against him for the same amount, $500. We think that this was a valuable consideration, and one that will support the plea of innocent purchaser. Bates gave Rowe no guaranty ; was in no way responsible to him if the title failed, or the interests in the estates purchased proved to be of no value. Rowe surrendered a valuable right, was in a worse position than before, and therefore entitled to protection as an innocent purchaser having no notice of the former conveyance to Masterson. Paddon v. Taylor, 44 N. Y. 371 ; Ayres v. Du- prey, 27 Tex. 493, 607. The description in the deed was suflS- cient, and it passed all lands in the State vested by inheritance in Westall at its date. Baxter v. Yarborough, 46 Tex. 231 ; Harvey v. Edens, 69 Tex. 420; 6 S. W. Rep. 306 ; Bitner v. Land Co. , 67 Tex. 341 ; 3 S. W. Rep. 301. We conclude the judgment or the court below should be affirmed. Statton, C. J. Report of commission of appeals examined, their opinion adopted, judgment affirmed. Two Conflicting Complete Descriptions of Property. Lake Erie & W. E. Co. v. Whitham, I5S 111. 614; 49 N. E. 1014. Bailey, J. This was a suit in ejectment brought by Eugene H. Whitham against the Lake Erie & Western Railroad Company 670 THE EEQUISITES AND COMPONENT FARTS OF A DEED. to recover a strip of land 40 or 50 feet in width, and 965 feet long, lying between the north line of blocks 13 and 14 in the village of Rankin, Vermilion County, and the north line of the S. E. \ of section 11, township 23 N., of range 14 W., being a part of the land claimed by the defendant as its right of way. The suit was brought November 29, 1892; the declaration con- sisting of one count, which describes the premises and alleges that the plaintiff is the owner thereof in fee simple. The de- fendant pleaded " Not guilty," and at the trial, which was had at the May term, 1894, of the circuit court, a verdict was ren- dered finding the defendant guilty, and finding that the title to the premises established by the plaintiff was in fee simple. Upon this verdict the court, after denying the defendant's motion for a new trial, gave judgment in favor of the plaintiff, and the de- fendant now brings the record to this court by appeal. It appears from the evidence that the village of Kankin was laid out and platted about November 14, 1872, and that the plat, with the accompanying certificates, was filed for record in the office of the recorder of Vermilion County November 28, 1872. The railroad in question, of which the defendant is now the owner, is located near the north line of the land in controversy, and seems to have been built and in operation before the plat of the village of Eankin was filed for record ; it having been built by a railroad company of which the defendant is, or claims to be, the successor. At the point in question the railroad runs east and west, and is crossed by Main street, — a street running north and south, — near the center of the village. At the time the village was platted, William A. Eankin and David Rankin, for whom the village was named, owned the W. ^ of section 12, on which that part of the village east of Main street was platted, while George Guthrie owned the N. E. ^ of section 11, or all that part of the plat lying west of Main street and north of the railroad, and the heirs of Stanton S. Johnston, deceased, owned the S. E. i of section 11, being that part of the land included in the plat lying west of Main street and south of the railroad. The evidence tends to show that at the time the village of Ran- kin was platted there was great rivalry between Rankin and a small place about a mile and a half further west, known as " Pellsville," as to which should secure the railroad sta- tion, and that the owners of the land embraced in Rankin were disposed to offer very considerable inducements to the rail- road company for the purpose of securing the station for their own village. William A. Rankin seems to have been employed by the Johnston heirs in platting their part of the village, and the evidence tends to show that they agreed to give him each alter- TWO CONFLICTING COMPLETJE DESCRIPTIONS OF PROPERTY. 671 nate two lots throughout the plat, if he would secure the sta- tion ; that Rankin, acting for the Johnston heirs, had the sur- Teying done, some of the heirs being present, and one or more of them assisting in making the survey. The evidence further tends to show that the proprietors of the several tracts of land to be included in the plat instructed the surveyor to leave sufficient ground on each side of the railroad track to make, with the right of way already acquired by the railroad company, a strip 100 feet in width, and that, in pursuance of such instruc- tions, he surveyed and laid out the grounds, and made the plat so as to leave 100 feet on each side of the railroad through the entire village ; and there is evidence tending to show that it was the intention of the parties that the ground so left should be railroad ground, and should be occupied and used for railroad purposes. The strips of land thus left not being «« marked or noted on the plat as donated or granted " to the railroad com- pany, it is not, and cannot well be, claimed that the plat oper- ated as a conveyance thereof to the railroad company, under the provisions of section 3 of chapter 109 of the Revised Statutes ; but it is contended on behalf of the company that the plat, when considered in connection with the evidence of the contempora- neous and subsequent acts of the parties, tends to establish a common-law dedication of the land of the company, for its use as a part of its right of way. This contention, which raises one of the principal questions presented by the record, will be more fully noticed hereafter. The plaintiff, to establish title in him- self to the lands in question, offered in evidence certain pro- ceedings in chancery between the heirs of Stanton S. Johnston, deceased, for partition, in which |it was alleged in the bill, and found by the decree, that Stanton S. Johnston, in his lifetime, was seised of an equitable estate in these lands, by virtue of a contract for the sale thereof to him by the Illinois Central Rail- road Company, and that after his death certain deeds were exe- cuted, by which the legal title was conveyed to his heirs. Evidence was also given, notonly that his heirs were thus claiming title in fee to the land, but that before the village of Rankin was laid out and platted they were in possession of it. The plaintiff then offered in evidence quitclaim deeds to himself from each of the heirs of Johnston, purporting to convey to him all their right, title, and interest in the land. Several specific objections to these deeds were raised, all of which were overrruled, and the deeds were read in evidence. The decisions of the court overruling these objections are now assigned for error. Harriet M. Hutchinson is one of the heirs of Johnston, and one of the deeds offered in evidence purports to be executed by 672 THE EEQUISITES AND COMPONENT PARTS OF A DEED. Joseph M. Hutchinson and Harriet M., formerly Harriet M.. Johnston, his wife, party of the first part, to the plaintiff, party of the second part, and in which the party of the first part, for a certain consideration therein mentioned, conveys and quitclaims to the party of the second part all interest in the land in ques- tion. It is objected that, because the name of the wife is placed after that of her husband, it will be intended that she joined with her husband merely for the purpose of waiving her dower, and not for the purpose of conveying her estate. It is sufficient to say that, even if such intendment could arise under other cir- cumstances, it is completely negatived here by the very terms of the instrument, since she appears in the deed as one of the parties conveying and quitclaiming all interest in the land. To hold otherwise would do violence to the express language of the deed. Again, it is objected that the certificate of acknowledgment is insufficient because the officer before whom the acknowledgment was taken, though describing himself in the body of the cer- tificate as a notary public, omitted to write the name of his office under his official signature. As he professes, in the body of bis certificate, to be a notary public, and to be acting officially we are of the opinion that the omission of the words " Notary Public " after his signature cannot have the effect of rendering his cer- tificate invalid. His official character and the fact that he was acting officially, we think, sufficiently appear. The objections to this deed were properly overruled. A deed from William A. Rankin and Mary D. Kankin, his wife, bearing date November 23, 1892, was objected to on the ground that the certificate of acknowledgment bears date December 2, 1892 — the latter date being after the suit was commenced. The presumption is that the deed was delivered on the day of its date, and the fact that the certificate of acknowledgment bears a later date is not sufficient to rebut such presumption. Deininger v. McConnell, 41 111. 227 ; Jayne v. Gregg, 42 111. 413; Blake v. Fash, 44 111. 302 ; Hardin v. Crate, 78 III. 633. There is evidence tending to show that the deed was executed and acknowledged in a different county from that in which the plaintiff resided, and that its execution was pro- cured for him by his attorney in that county ; and while he testifies that it did not come into his personal possession until after it was acknowledged, there is no evidence of that furnished by the dates appearing upon the instrument itself, tending to show the date of its delivery to his attorney. To rebut the pre- sumption of its delivery on the day of its date, it was necessary, under these circumstances, to produce some evidence as to the TWO CONFLICTING COMPLETE DESCRIPTIONS OF PROPEBTY. 673 time of its delivery to the plaintiff's attorney, and, there being none, the presumption cannot be said to be rebutted. It is next claimed that the deed from Jane M. John- ston, William O. Johnston, Scott Johnston, and Martha E. Johnston to Benjamin E. Cole conveyed the interest of the grantors in only a part of the land in controversy, and conse- quently that the plaintiff has failed to show that he has be- come vested with their title to the residue. This deed purports to convey and quitclaim all the interest of the grant- ors " in the following described real estate." Then follow two descriptions, by metes and bounds, the land lying between block 14 and the north line of the quarter section. The other description, which in the deed appears in a separate sentence, is as follows: *' Being all that part of above-described quarter sec- tion lying between the north line of said quarter section and blocks thirteen and fourteen in the village of Eankin." Here are two descriptions, each complete in itself, one embracing only that portion of the quarter section lying north of block 14, and the other that portion lying north of both blocks. It seems plain that, under these circumstances, effect must be given to the larger, as well as to the more restricted description. Such in- terpretation does no violence to either, but gives full force to both. Were there any necessary incongruity between the two the more restricted description might perhaps be rejected, so long as the conclusion fairly arises from the entire instrument that the grantors intended to convey their interest in the whole tract; but, there being no such incongruity between them, noth- ing need be rejected, and all parts of the description may be retained and given force. It is also claimed that the deed from Cole and wife to the plaintiff is not shown to have been delivered before the com- mencement of the suit. That deed bears date November 23, 1892, and the certificate of acknowledgment is dated November 29, 1892. The suit was brought on the date last named, and the plaintiff testifies that the deed was received by him directly from Cole, and that he received it the day it was acknowledged, but that it came to his hands before the suit was commenced. His testimony upon this point is sought to be weakened on his cross- examination by eliciting from him the fact that he, on the day the deed was received, was in Rankin, while the suit was com- menced at Danville, and, therefore, that he could not have known the exact time of the issuing of summons in the suit. He, however, persists in saying that according to his understanding the suit was not commenced at Danville until after the deed was delivered to him at Eankin ; and, there being no evidence 43 674 THE REQUISITES AND COMPONENT PAETS OP A DEED. to the contrary, we think his testimony, while not very satisfactory, is sufficient to show, prima facie, that the deed came to the plaintiff's hands before the summons in the suit was issued. It is contended in the next place that the verdict and judg- ment for the plaintiff are unsupported by the evidence, because the plaintiff failed to deduce his title from the United States, or any other original source of title. It is claimed, on the other hand, that a, prima facie title is shown, by deducing title from ■the Johnston heirs, who are shown to have been in possession of Ihe land, claiming title in fee. The plaintiff also sought to bring his case within the provisions of section 25 of chapter 45 of the Kevised Statutes. Upon the trial he stated on oath that iie claimed title from the Johnston heirs, and that, as he under- stood it, the defendant claimed title from the same source. This, we think, was sufficient to require the defendant, or its agent or attorney, to deny on oath that it claimed title through such source, or that it claimed title through some other source, in order to compel the plaintiff to deduce title from any other than such common source. No such denial was made on oath by or on behalf of the defendant, and we think, therefore, it was sufficient, prima facie, for him to trace his title to such common source. The principal contention on the part of the defendant, however, seems to be that the Johnston heirs, at the time the village of Ran- kin was laid out and platted, intended to dedicate, and in fact ded- icated, the premises in question to the railroad company of which the defendant is the successor, to become a part of its right of way, to be used for railroad purposes. It seems to be conceded that the strip of land in question was not " marked or noted on the plat as donated or granted ' ' to the railroad company ; and it is not, and cannot well be, claimed that the plat operated as a conveyance thereof to the railroad company under the provis- ions of section 3 of chapter 109 of the Eevised Statutes. But it is insisted that the plat, when considered in connection with the evidence of the contemporaneous and subsequent acts and con- duct of the parties, tends to show a common-law dedication of the land to the company. The evidence bearing upon the ques- tion of a common law dedication is conflicting, some of the witnesses, especially some of the Johnston heirs themselves, testifying positively that there was no intention on the part of the heirs to make such dedication; but, as the question is presented here, we need consider only the evidence introduced on the part of the defendant to show such dedication. The county surveyor who made the survey and plat was examined as a witness, and TWO CONFLICTING COMPLETE DESCRIPTIONS OF PROPERTY. 675 his testimony, so far as it relates to the strip taken from the land belonging to the Johnston heirs, being the premises in con- troversy in this suit, is as follows : " I was county surveyor at the time the village of Bankin was platted and laid out. 1 made the survey and plat. I recollect the circumstances of there being a strip of land left north of blocks 13 and 14 in that plat. There was a strip one hundred feet wide left along each side of the center of the road, as it was then running. In making that plat, I made a plat of the whole town. That strip was left at the time, as I understood it, for the railroad company. I think some of the Johnston heirs were assisting in making the plat. I think William O. Johnston carried chain for me. The strip has been used for railroad grounds ever since, so far as I know. I have been back there since that time, every year or two at different times. Mr. Rankin was overseeing and looking after the platting of the ground. He employed me, and paid me for doing the whole work. He was with me during the platting. I suppose he was acting for the Johnston heirs, in the platting of the ground. He was there all the time, and the Johnston heirs, or some of them, were there all the time, while I was acting. They told me to leave a hundred feet on each side of the track; that they were willing to give almost any amount of land to the railroad to get the station there. And I did so, and that was made and signed by the different parties, and recorded. Why, certainly, it was left for railroad ground, and that was the purpose of it. I do not remember any particular conver- sation with the Johnston heirs, it being twenty-two years ago. They were all mighty anxious to get the town there, and they were fighting the town a mile distant. There was a great rivalry at that station, and the station a mile or a mile and a half west of it, for the town. They were each fighting to get the station. There was great rivalry. I do not know what inducements they had offered, but they were willing to give most anything to the rail- road to locate the station there. They were willing to give this ground, and anything else." Again, on cross-examination, he said: "I don't know that anything was said by the owners as to what use the land was to be put to. I know that it was not left for the owners to use themselves. I know it was called railroad ground. I understood by that that it was for the exclusive use of the railroad." The evidence shows that shortly after the plat was recorded the railroad company entered into possession of the strip of land in controversy, and built a side track, and also erected stock pens upon it, and that it and its successors have continued to occupy and use it from that time up to the commencement of 676 THE EEQUISITES AND COMPONENT PAETS OF A DEED. this suit, — a period of between 19 and 20 years, — claiming it as railroad property. It also appears that from the time the plat was recorded the Johnston heirs made no claim to this strip of land, until a short time before the commencement of this suit, when, for a nominal consideration, they quitclai'med their interest to the plaintiff. Upon this evidence the defendant's coun- sel asked the court to give to the jury various instructions upon the hypothesis of a common-law dedication, but the court refused to give any instruction of that character, as asked, but modified them so as to limit their scope to a dedication by plat ; thereby^ in effect, refusing to instruct the jury that the defendant was capable of acquii-ing lands by a common-law dedication. Thus, the following instruction, being asked, was modified by inserting therein the words in italics, and given thus modified : " The court instructs the jury that a railroad corporation is a public corporation, and is an ever-existing grantee, capable of taking lands by conveyance or by dedication by plat by the owner for railroad purposes." The following instruction also was asked on behalf of the defendant : " The court instructs the jury that the word * dedication,' used in these instructions means an ap- propriation or devotion or setting apart by the former owners of the land in question for railroad purposes. A dedication of land may be made by deed or writing, or it may be by acts or parol declarations of the owners, or both, without writing ; and no particular form is required to establish its validity, it being^ purely a question of intention. A dedication may also be made by survey and plat alone, without any declaration, either oral or on the plat, when it was evident from the face of the plat that it was intended to set apart certain ground for the use of the public or for the use of a railroad company." This instruc- tion the court refused to give as asked, but modified it as follows, and gave it to the jury so modified. " The court instructs the jury that the word •dedication,' used in these instructions, means an appropriation or devotion or setting apart by the former owners of the land in question for railroad purposes by a plat. A dedication may be made by survey and plat alone, without any declaration, either oral or on the plat, when it is noted on the face of the plat that it was intended to set apart certain grounds for the use of the public, or for the use of a certain corporation." Other instructions involving a similar principle were modified in a similar manner. The rule which the trial court thus intended to lay down, manifestly, was that while a railroad company may take lands by dedication, where the dedication is by plat executed in the form prescribed by the statute, it is incapable of taking lands by dedication in TWO CONFLICTING COMPLETE DESCRIPTIONS OF PROPERTY. 677 any other way, and especially that it cannot become the bene- ficiary of a common-law dedication. That there was evidence tending to show a common-law dedication to the railroad com- pany, if such dedication is legally possible, cannot be doubted ; and the question presented is whether the court decided correctly in holding that no such dedication can be effectual, as vesting a railroad company with the title or right of possession of the land attempted to be so dedicated to its use. It is doubtless true that any person who is the owner of land may, by virtue of his absolute dominion over it, donate or dedicate it to whomsover he pleases. He may give it the public, to a body corporate cap- able of holding it, or to a natural person, for such purposes, either public or private, as the donor sees fit to appoint. But to render such gift efiectual the owner must grant or convey to the donee the laud, or such interest therein as he wishes to donate, «ither by deed, or by some equivalent mode of conveyance known to the law. Except in what are known as " common-law dedications," parol gifts of land or of easements therein are ineflectual ; it being elementary law that the title to the lands can- not be transmitted inter vivos except by deed or its equivalent, and that easements or other incorporeal hereditaments cannot be created by parol, but only by grant, oj by prescription, whereby a conclusive presumption of a previous grant is raised. The provisions of chapter 109 of the Revised Statutes, entitled, " Plats," furnish no exception to this rule. They merely create a new mode of conveyance. By force of these provisions the owner of land, by platting it, and marking or noting on tlie plat that portions of the land are donated or granted to the pub- lic, to a corporation, to a religious society, or to a natural per- son, in legal effect, conveys the portion of the land so marked or noted to the designated donee or grantee, for the uses and purposes therein indicated. By this statute the purposes for which an owner of land may dedicate or grant it away to others are not enlarged, restricted, or modified, but a new mode is pro- vided, by which his intention to grant or convey his land may be carried into effect. But, by the rules applicable to what is known as "common law dedications," lands or easements therein may be dedicated to the public, so as to become effectually vested, without the aid of any conveyance. It may be done in writing, by parol, by acts in pais, or even by acquiescence in the use of the easement by the public. All that is necessary is that the intention to dedicate be properly and clearly manifested, and that there be an acceptance by or on behalf of the public. When that is done the right or easement becomes instantly vested in the public. But a dedication of this character, to be effectual. 678 THE REQUISITES AND COMPONENT PARTS OF A DEED. must be to the public. Washb. Easem. 295. At the common law they are confined to the purpose of highways, but in this country the doctrine has a wider application, and its limits have been judicially defined as extending to public squares, common lots, burying grounds, school lots, and lots for school purposes, and pious and charitable uses genei'ally, and in many cases where the use was either expressly, or from the necessity of the case, limited to a small portion of the public. 5 Am. & Eng. Enc. Law, 416, and authorities cited in notes. But we are referred to no decision, and we think none can be found, where a dedica- tion of this character, made for any other purpose than one strictly public, has been sustained. Eailroad compa- nies, though engaged in the public employment of common carriers, are essentially private corporations; and, while the lands composing their rights of way are acquired for a public purpose, the ownership of such lands, when acquired, is private. In no proper sense can such corporations be regarded as constituting the public or a portion of the public to which common-law dedications of land can be made. Donations or gifts of land can undoubtedly be made to them where the donor sees fit to effectuate his gift by some one of the ordinary modes of conveyance, and the donation can also be made by plat, where the donor sees fits to mark or note on his plat that the land which he wishes to give to such corporation is donated or granted to it. But we find no authority in the law for holding that a railroad corporation may acquire title to or an easement in land by common-law dedication. Neither the researches of counsel nor our own have brought to light a single case sustain- ing such dedication, and we think none can be found. Counsel seems to argue that because, under the statute, gifts or grants can be made to railroad companies and other corporations by plat, it should be held that common-law dedications may be made in like cases. This by no means follows. As we have already said, the statute makes the plat a mode of conveyance ; thus enabling the donor of lands to accomplish by its means what, independently of the statute, he might have done by any other appropriate conveyance. But it in no way enlarges, either ex- pressly or by implication, the class of cases where an easement maj' be created in favor of the public by common-law dedication. Moreover, the reasoning sought to be employed would prove too much. The statute makes the plat a conveyance, not only to the public and the corporations, but also to natural persons ; and the same principles of analogy which would extend the doc- trine of common-law dedications to railroad companies would make it apply as well to natural persons, — a result for which. BOUNDARY MONUMENTS — SEASHORE — QUANTITY. 679 ■we think, no one will contend. The case of Morgan v. Railroad Co., 96 U. S. 716, upon which much reliance seems to bo placed, will be found, on examination, to have been a case of dedica- tion or conveyance of certain lands to the railroad company by plat; and the question of a common-law dedication, and whether such dedication could be made to a railroad company was not in- volved. That case, therefore, cannot be regarded as an authority upon the questions presented here. It should also be noticed that the suit was in equity, — a forum where the doctrine of equitable estoppel has full play, and where there is always a strong indisposition to enforce stale claims, although they may not be barred by limitation, — while this suit is in ejectment, where legal titles only are regarded. The case of Smith v. Town of Flora, 64 111. 93, to which we are referred, involved a ques- tion of a dedication of strips of land on each side of the right of way of the railway company to the municipal corporation, and no question of a common-law dedication to a railway company was raised or decided. We fail to find in the record any substan- tial error, and the judgment of the circuit court will accordingly be affirmed. Judgment affirmed. Boundary — Monuments — Seasbore — Quantity. Oakes v. De Lancey, 133 N. Y. 227; 30 N. E. 974. Appeal from superior court of New York City, general term. Action by Thomas F. Oakes against Edward F. De Lancey, to recover for a deficiency in the quantity of land sold by de- fendant to plaintiff. From a judgment of the general term, (15 N. Y. Supp. 561), affirming a judgment for defendant at special termi (14 N. Y. Supp. 294), plaintiff appeals. Af- firmed. Finch, J. The only question raised by this appeal is over the true construction of the deed given by the defendant. The premises were described as " Vergemere," and bounded on the north and east by the waters of Long Island sound; and the dis- pute is whether the description of the conveyance includes or excludes the strip of land on the water fronts between high and low water, and which constitutes the shore. The description is thus phrased: " Beginning at a point in the center line of an avenue sixty feet wide, known as ' De Lancey Avenue,' which point bears south, forty-two degrees and forty-seven minutes west, thirty feet from the point of intersection of the division line between the property hereby conveyed and the land conveyed by the late Peter John De Lancey, of Geneva. 680 THE EEQUISITES AND COMPONENT PARTS OF A DEED. New York, to James J. Burnett, with the northeasterly line of said De Lancey avenue; and thence, running along said division line, north, forty-two degrees and forty-seven minutes east, about eight hundred and sixty-five feet, to a point on the shore of Long Island sound; thence, running along said shore and sound as the same bend and turn easterly, and then southerly, to their intersection with the center line of De Lancey avenue aforesaid ; and thence running along said center line of said De Lancey avenue, forty-nine degrees and fifty-five minutes west, about twelve hundred and eighty-eight feet, to the point or place of beginning; containing twenty-two acres and fifty-seven hundredths of an acre of land, be the same more or less." It will be observed that the starting point of this description i3 fixed with accuracy and care ; and the surveys show that the first course, if run in obedience to the distance given, will extend to low-water mark ; and that the last course, to obey the same re- quirement of distance, must start at low- water mark on the east- erly water front. The surveys also show that the strip between high and low water must be included in order to correspond with the quantity of land which the deed purports to convey. The courses and distances and the quantity of land caiTy the descrip- tion to low-water mark, and can only be satisfied by including the area of the shore. But the appellant, relying upon the rule that fixed monuments control, and distances and quantities must yield to their safer and superior authority, insists that the shore is such a monument, and by the shore is always meant the line of high water when the boundary is the sea. That is undoubt- edly true, and would be decisive if the first course ran simply to the shore. But it does not. It goes, not to the shore, but " to a point on the shore." That point may be anywhere upon the strip lying between high and low water, and where it is must be determined, and can only be determined, by the sole direction furnished, which is the distance. That distance fixes the point at the outer or low water line of the shore, and so, and only so, is the description satisfied. The first course ends at " a point on the shore," and about 865 feet from the fixed starting point. Having found this " point on the shore," we are required to go "along said shore and sound" easterly, and then southerly. Starting thus on the line of low water, we must follow that line. The words are not only " along the shore," but also " along the sound," and a line starting at low water, and then running away from it on a diagonal to the line of high water, and thence east- wardly on that line, is neither described nor intended. It would fail again when the return course to the starting-point is reached. That calls for about 1,288 feet, and can only be satisfied by LOST COBNEKS IN LOCATION OF BOONDAEY LINES. 681 beginning the course at low water mark. To these indications of the intent must be added the quantity of land stated to be conveyed, which requires the inclusion of the shore, and is seriously defective if that be excluded. The use of the words " more or less," in connection with the quantity, and the use of the word " about," as qualifying the distance, do not alter the conclusion to be drawn. They are words of safety and precaution, and intended to cover some slight or unimportant inaccuracy, and while enabling an adjustment to the imperative demands of fixed monuments, do not weaken or destroy the indications of distance and quantity, when no other guides are furnished. Belknap v. Sealey, 14 N. Y. 143. The appellant further insists that the title to the shore is presumably in the State. That, with us, is the common law rule, but does not exclude the possibility of title in the grantor derived from the sovereign or obtained by prescription. There is no question of title in the case, and we know nothing about it. Certainly we ought not to presume a want of title in the grantor in order to construe a description which implies such title. There is noth- ing in the case of Storer v. Freeman, 6 Mass. 435, upon which the appellant mainly relies, adverse to our conclusion. In that case the description in the first deed ran " to the shore," which was held to be the line of high water. In the second deed the course ended at a heap of stones " at the shore," and ran thence " by the shore." That heap of stones at " William Elwell's corner" was treated as a possible monument which, if found at the line of low water would carry the description there, and thence, " by the shore," would follow the line of low water. The point on the shore, or at the shore, fixed in that case at low water by a monument in the form of a heap of stones at a cor- ner, is fixed here without a monument, by the sole remaining guides, which are distance and quantity, at a point on the shore at low water mark. We think the judgment is right, and should be affirmed, with costs. All concur. Ascertainment of Liost Corners in liOcation of Boundary Liiues. Miller V. Topeka Laud Co., 11 Kan. .S54; 24 F. 420. HoETON, C. J. The Topeka Land Company brought its action against F. O. and G. F. Miller, to quiet its title to a strip or tracr of land in the N. E. 1-4 of section 2, township 12, range 15, in Shawnee County, described as follows: "Com- 682 THE REQUISITES AND COMPONENT PARTS OF A DEED. mencing 1,323.08 feet north of southeast corner of said quarter section; thence running west forty chains, or thereabouts, to the west line of said quarter section, at a point 1,325.33 north of the southwest corner of said quarter section ; thence south 33 feet; thence east forty chains, or thereabouts, to the east line of said quarter section ; thence north 23 feet to place of begin- ning." Trial had by the court, Hon. Z. T. Hazen acting as judge pro tern. The court, after hearing the evidence and argu- ments of counsel, found the allegations in the plaintiff's petition to be true, and made a general finding in favor of the plaintiff. The court subsequently, upon its general finding, rendered judgment in favor of the plaintiff and against the defendants, forever quieting the title in the plaintiff to the land in controversy as against the defendants, and all persons claiming under or through them, or either of them. The de- fendants bring the case here. The principal complaint is that the judgment of the trial court is not sustained by sufficient evidence. The record does not show any exception to the evi- dence given, nor does it show any evidence was excluded. The case made does not state expressly, or by implication, that it contains all of the evidence introduced upon the trial. The cer- tificate of the judge clearly implies that all of the evidence is not embraced in the record. As the judgment follows the petition, the only matter for our consideration is whether the allegations of the petition are sufficient to entitle the land com- pany to the judgment rendered. The petition alleges, among other things, that, on the 2d day of April, 1860, the United States conveyed by its patent, to Lewis C. Wilmarth, " the northeast quarter of the northeast quarter of section two (2), in township twelve (12), of range fifteen (15), in the district of lands subject to saleatLecompton, Kan., containing thirty-eight acres and twenty-seven hundredths of an acre, according to the official plat of the survey of said lands returned to the general land-office by the surveyor gen- eral ; " that on the 1st day of June, 1860, the United States also conveyed by its patent, to Lewis C. Wilmarth, " the south half of the northeast quarter, and the northwest quarter of the north- east quarter, of section two (2), in township twelve (12), range fifteen (15), in the district of lands subject to sale at Lecompton, Kan., containing one hundred and eighteen acres and fifty-two hundredths of an acre, according to the official plat of the survey of the said land returned to the general land-office by the surveyor general," which patent is duly recorded in the office of the register of deeds of Shawnee County, at page 289, vol. 13 ; that according to the official plat of the survey of said LOST CORNERS IN LOCATION OF BOUNDARY LINES. 683 land, returned to the general land-office of the United States by the surveyor general, the width of the south half of said quarter section was twenty chains on its east and west lines ; that the east line of said northeast quarter of said quarter section was 19.07 chains; that the length of the west line of the said north- east quarter of said quarter section was 19.13 chains ; that the length of the west line of the said northwest quarter of said quarter section was 19.19 chains; that the real length of the entire east line of the said quarter section is 39.20 chains and not merely the total of the official measurements, which are 39.07 chains ; that the actual and real length of the entire west line of the said quarter section is 39.43 chains, and not merely the total of said official measurements, which are 39.19 chains ; and that there are no monuments upon the land of the government sur- vey of the line between the north half of said quarter section and the south half thereof ; that on the 24th of May, 1880, Lewis C. Wilmarth and wife executed and delivered to the Topeka Land Company a conveyance of a certain portion of said land, described as follows : " The south half of the northeast quarter of section two (2), in township twelve (12), range fifteen (15), in the district lands subject to sale at Le- compton, Kan., as described in government patents issued to the parties of the first part April 2d and June Ist, 1860, and duly recorded in volume 13, pp. 289, 290, Shawnee County records;" that on the same day, the 24th of May, 1880, Lewis C. Wilmarth and wife, executed and delivered to F. O. Miller a conveyance of a certain portion of said land, described as follows : The north half of the northeast quarter of section two (2), in township twelve (12), range fifteen (15), in the district of lands subject to sale at Lecompton, Kan., as described in government patents issued to the parties of the first part April 2d and June 1st, 1860, and duly recorded in volume 13, pp. 289, 290, in Shawnee County records ; " that said defendants have not, nor has either of them, any right, title, or interest in or to any of said lands hereinbefore described, save and except under and by virtue of said deed of said Lewis C. Wilmarth and wife; that the plaintiS'is the owner and in the actual possession of the strip or tract of land hereto- fore described as thirty-three feet wide from north to south, and forty chains long from east to west. Upon the allegations in the petition, the judgment of the dis- trict court must be sustained. In the deeds of Wilmarth to the parties to this action, the reference to the government patents made the description and the United States survey a part of the deeds. Tied. Real Prop., § 841, and cases cited; Davidson v. Arledge, 88 N. C. 326; Powers v. Jackson, 684 THE EEQUI8ITES AND COMPONENT PAET8 OF A DEED. 50 Cal. 429; Tarpenning v. Cannon, 28 Kan. 665. According to the government survey the entire length of the east line of the whole quarter section was 39.07 chains, of which the east line of the south half of the quarter section, as measured by the government survey, was 20 chains long, and the north half 19,07 chains. The length by accurate measurement of the entire east line of the quarter section is 39.20 chains, being .13 chains more than the survey as made by the government surveyors. The plaintiff below, under its peti- tion, is entitled to its proportionate share of the .13 of a chain. " Where, on a line of the same survey, between remote corners, the whole length of which line is found to be variant from the length called for, * * * we are not permitted to presume merely that a variance arose from defective survey in any part, but we must conclude, in the absence of circumstances showing the contrary, that it arose from the imperfect measurement of the whole line, and distribute such variance between the sev- eral subdivisions of such line in proportion to their respective lengths." Moreland v. Page, 2 Iowa, 139 ; McAlpine v. Reich- eneljer, 27 Kan. 257 ; Newcomb v. Lewis, 31 Iowa, 488-490; O'Brien v. McGrane, 27 Wis. 446; Jones v. Kimble, 19 Wis. 430-432. Again, the petition alleges that the plaintiff is the owner of and in the actual possession of the strip or tract of land in dispute. In the absence of evidence, we must assume that the trial court had evidence before it to justify its finding, and therefore properly rendered judgment accordingly. The judgment of the district court will be aflBirmed. All the justices concurring, Description in a Conveyance of a Cotenant's Undivided In- terest in a Joint Estate. Emerlc v. Alvarado, 90 Cal. 444; 27 P. 356. McFaeland, J. This is an action for the partition of a tract of land called the " San Pablo Eanch," containing 17,938.59 acres. It is situated in what is now Contra Costa County, and was granted by the Mexican government, and afterwards patented by the United States to the successors of Francisco Maria Castro, who died on the 5th day of November, 1831. The action was commenced on November 19, 1867, in the district court of the fifteenth judicial district in and for the city and county of San Francisco, and an interlocutory decree was rendered in that court on July 15, 1878. Several appeals were taken, and the judgment and order denying a new trial were reversed by this court, because the findings as to two or three DESCRIPTION OP A CO-TENANT'S UNDIVIDED INTEREST. 685 issues were deemed defective ; and furthermore, and mainly, because the decree determined rights, interests, and shares in the land only as they existed in the hands of the original tenants in common, and did not determine the present rights, interests and shares of all the parties to the suit as they existed at the time the action was commenced. Most of the findings of the district court were approved, and the cause was remanded to the superior court (successor to said district, court), with instructions to find on certain issues mentioned; and "upon the findings hereto- fore made and herein approved, and those hereafter to be made under the directions of this court," to proceed and specify in its interlocutory decree the " rights and interests of all parties to the action," and adjudge partition between them according to such rights and interests. Emeric v. Alvarado, 64 Cal. 527 ; 2 Pac. Eep. 418. It was established by the first decree, and the de- cision of this court, that the persons denominated " original tenants in common," and the shares belonging to each, were as follows: Martina Castro de Alvarado, fifteen equal twenty- second parts of said rancho ; Antonio Castro, Joaquin I. Castro, Juan Jose Castro, Gabriel V. Castro, Victor Castro, and Jesus Maria Castro, each one equal twenty-second part; and Luisa Moraga de Briones, Maria de los Angeles Moraga de Briones, Jose Moraga, Gaudalupe Moraga de Martinez, and Francisca Moraga, each one equal one-fifth of one equal twenty-second part of said rancho. (The seven persons first above named were children of Francisco Maria Castro, and the five persons last named were children of Francisco Castro de Moraga, a deceased daughter of said Francisco Maria Castro. ) After the cause went back to the superior court, further findings were had ; and that court — Judge James G. Maguire presiding — with great care, and in a systematic method that must have cost great labor and thought, found, determined, and stated the interests and shares, not only of the said original co-defendants, but of all persons holding or claiming under them, and being parties to this action ; and entered an interlocutory decree adjudging partition among the parties in accordance with the findings. The case now comes here the second time upon numerous appeals from the interlocutory decree, and from an order denying a motion for a new trial. There are several hundred parties to the action. The interests of many of the parties to the appeals are friendly as to some matters and hostile as to others, so that they are appellants as to some points and respondents as to others, thus presenting different and contradictory claims upon the same transcript. The findings of fact of the superior court number 274, many of them having numerous subdivisions, and they tib6 THE EEQUISITES AND COMPONENT PARTS OF A DEED. were all necessary to the disposition of the case. These find- ings, with the conclusions of law, the original findings of the district court, and the last interlocutory decree occupy 752 pages of the printed transcript No. 13,276, while there is much additional matter in the other transcripts. It is apparent, there- fore, that the labor of the court below must have been very great ; and that it would be impossible to give here a full state- ment of the whole case in detail without exceeding all reason- able limits of an opinion. As, however, the opinion of this court delivered on the former appeal contains quite an extensive history of the case, and as the points arising on the present appeals may be grouped into a few general classes, we think that the case can be disposed of without much detailed statement of facts. There are five separate transcripts, — Nos. 13,276, 13,275, 13,871, 13,984, and 14,006. In the present opinion, rendered in No. 13,276, we will consider and determine all the points made in all the appeals, and judgments will be rendered in the appeals based upon the other transcripts according to the conclusions declared in this opinion. (The references here made to the transcript refer to transcript 13,276, unless otherwise stated.) I. Specific Tracts. At various times individual tenants in common, owning large undivided interests in the ranch, under- took by grant, bargain and sale deeds to convey the whole of particular parts of the ranch described by metes and bounds, or other sufficient description, as though the grantor owned in sev- eralty the particular part conveyed. The lands described in these conveyances are called " specific tracts." There are more than a hundred of such tracts, and they are designated in the findings by numbers. The court below found that these specific tracts, conveyed by deeds purporting to convey the whole title, " should be allotted and set apart in partition as a portion of the shares and interests of such co-tenants, and in such manner as to make such deeds effectual as conveyances of the whole title to such segregated parcels, if the same can be done without material injury to the rights and interests of other co-tenants who did not join in such conveyances, or those claiming under such other co-tenants, or any of them; and the tracts so conveyed are to be charged in proportion to their value to the interests in said rancho of the said grantors." This find- ing is attacked as erroneous by some of the appellants, who contend — First, that such a conveyance is void; and second, that, if not void, the grantee under it of a specific tract should take, on partition, only such a share as is equal to the undivided interest which the granting co-tenant had in such specific tract. DESCRIPTION OF A CO-TENANT'S UNDIVIDED INTEREST. 687 Upon this subject it is declared in section 764 of the Code of Civil Procedure as follows: " Whenever it shall appear, in an action for partition of lands, that one or more of the tenants in common, being the owner of an undivided interest in the tract of land sought to be partitioned, has sold to another person a specific tract by metes and bounds out of the common land, and executed to the purchaser a deed of conveyance purporting to convey the whole title to such specific tract to the purchaser in fee-simple and in severalty, the land described in such deed shall be allotted and set apart in partition to such purchaser, his heirs and assigns, or in such other manner as shall make such deed effectual as a conveyance of the whole title to such segregated parcel, if such tract or tracts of land can be so allotted or set apart without material injury to the rights and interests of the other co-tenants who may not have joined in such conveyance." If this section of the Code controls in the case at bar, then the question under discussion must be answered adversely to the con- tention of appellants. But the part of the section above quoted was not enacted until 1876 ; and, as the conveyances here involved were made prior to that time, it is contended by appellants that the said provision of the Code is not applicable to this case. Of course, if this amendment to the section was an entirely new provision, and completely changed the old law upon the subject, it would not be retroactive, and could not destroy or seriously disturb prior vested rights. But, in our opinion, the law was substantially the same before the amendment as after it. From a general statutory enactment not expressing a design to change the law there arises no necessary presumption that the law was different before the enactment. It was said at a very early date in the history of our jurisprudence that " to know what the common law was before the making of a statute, whereby it may be known whether the statute be introductory of a new law or only affirmatory of the common law, is the very lock and key to set open the windows of a statute," and that " in all general matters the law presumes the act did not intend to make any alteration." These rules were approved by our predecessors, the learned Justice Field delivering the opinion of the court, in Baker v. Baker, 13 Cal. 95, 96. Statutes are fre- quently intended to remove all doubt and uncertainty as to some principle of law, and to state, in apt, distinct, and explicit lan- guage, what the law is upon a particular subject ; and we think that such was the effect of the amendment which we are now considering. In the same amendment it was also enacted, for the first time, that, when a co-tenant had made improvements on a part of the common land, that part should be allotted to him. 688 THE KEQUISITE8 AND COMPONENT PARTS OF A DEED. on partition, without considering the value of such improve- ments, if the same could be done without material injury to the other co-tenants; but it is not contended that such was not the law before the amendment. In Scale v. Soto, 35 Cal. 102 (decided in 1868), the lower court had ordered in its interlocutory decree " that there be set off to the said several par- ties such portions of said premises as will include their respective improvements, provided, always, that the rights or interests of neither of the other parties be prejudiced thereby;" and this court held, on appeal, that the order was " equitable, just, and proper," and " cannot be successfully assailed." The decision of this court on the former appeal, if not declar- ing, as the law of the case, that the rule laid down in section 764 should govern, is at least strong authority to that point. Mr. Justice Thornton, who delivered the leading opinion in the case, when giving reasons for the proposition that an interlocu- tory decree should determine the rights of all the parties, urges, as an argument, the consideration that otherwise the provisions of section 764 could not be carried out. He quotes the section in full, and says: " We cannot see how these provisions can be carried out by the referees unless the interest of each party is ascertained by the court and stated specifically in the decree. And when the decree for partition is made, as it is in this case, the court must determine under which of the original co-tenants each party claims, and state it in the decree, so that the referees can perceive clearly and be enabled to execute the provisions in section 764 when in- serted in the decree." None of the other justices dis- sent from this part of the opinion, although Mr. Justice Eoss holds that it was sufficient, in the first instance, to determine the shares and interests of the original co-tenants. The concurring opinion of Mr. Justice McKee merely fortifies the opinion of Justice Thornton as to the proper character of the interlocutory decree, and says, among other things, as follows: "The next step in order is to ascertain and determine the respective rights and interests of each of the tenants in common in the mode pre- scribed by sections 763, 765, and 769 of the Code of Civil Pro- cedure, and adjudge partition between them according to their respective rights." Moreover, in the findings of the district court, which were then under the review of this court, there was a finding on the subject of specific tracts to the precise eff'ect, and in the identical language, of the finding of the superior court which we are now considering, and the superior court was directed to " proceed upon the findings heretofore made and herein approved." Therefore, whether or not the DESCRIPTION OF A CO-TENANT's UNDIVIDED INTEREST, 689 decision can be taken as a direct adjudication of this point, it is evident that, in the judgment of the court at that time, the true rule on the subject is that declared in section 764. And we are satisfied, upon principle and authority, that such is the correct rule. It is clear that a deed made by one co-tenant conveying a specific part of the land of the co-tenancy is not void. That was definitely settled in Stark v. Barrett, 15 Cal. 362. In that case one of the co-tenants (Vaca) had undertaken to convey all his right, title, and interest in and to a tr^ict containing 1,500 acres, being a part of the common land ; and it was argued, and authorities cited to the point, that the convey- ance was void because it destroyed the unity of possession, because it impaired the right of the other co-tenants to partition, and imposed additional burdens on them when seeking partition, etc. But the court, after reviewing the authorities, held definitely that such a conveyance was not void, although, as against the other co-tenants, the grantee might lose his rights on partition. And, of course, where, as in the case at bar, a co-tenant under- takes to convey the whole title to a specific tract, his conveyance, under well-settled principles, operates as an alienation of, at least, all the right and interest which the grantor had in the spe- cific tract ; so that he comes within the rule that his conveyance is not void, as established in Stark v. Barrett, Freem. Co- Tenancy, § 204 et seq. Furthermore, when a co-tenant under- takes by a bargain and sale deed to grant a specific tract in sev- eralty, although his deed will not convey the interests of his co-tenants, he is estopped under well-settled rules from denying, as against his grantee, that he owned a less interest than his deed purports to convey. And, under equally well-settled rules, if he afterwards acquires the title of his co-tenants in the specific tract, such title will inure to the benefit of his grantee ; and if, upon par- tition, such specific tract be allotted to him, then it happens that he does acquire his co-tenants' title, and it passes to his grantee. But a suit in partition under our Code is, in its nature and essence, equitable (Emeric v. Alvarado, 64 Cal. 619 ; 2 Pac. Eep. 418; Gates v. Salmon, 35 Cal. 593), and the court in its decree proceeding to do what is " equitable, just and proper," will not only allot to a co-tenant that part of the common land upon which he has valuable improvements, but will also set apart a specific tract to the share of a copartner who has undertaken to convey the title in fee to such tract in severalty, so that the grantee may have that which is justly his, when such disposition of the land can be made " without material injury to the rights and interests of the other co-tenants." See 1 Story Eq. Jur. 44 690 THE EEQUISITES AND COMPONENT PAKTS OF A DEED. § 656c,- Freem. Co-Tenancy, §§ 202-205 ; McKee v. Barley, 11 Grat. 340; Campau v. Godfrey 18 Mich. 27; Holcomb v. Coryell, 11 N. J. Eq. 548; Nichols v. Smith, 22 Pick. 319. There are no decisions in this State which assert a different rule. Gates v. Salmon (reported in 35 and also in 46 Cal.) is cited on both sides. In the case as reported in 35 Cal., the only point decided is that, in a suit for partition, grantees of specific tracts are necessary parties to the action ; and the views expressed in the opinion on the general subject are in harmony with the conclusion above stated. In the case as reported in 46 Cal., it is stated that the grantees of specific tracts, under cer- tain deeds, acquired the interests which their grantors had at the time of the execution of the deeds; but the character of such deeds does not appear, nor, in the confused state of the pleadings and issues and parties in that case, does it appear against whom the statement is intended to apply, or between what parties the question was raised. Of course, one tenant in common cannot, as against his co-tenants, absolutely convey away the interests of the latter in any part of the com- mon land. In Pfeiffer v. Eegents, 74 Cal. 156; 15 Pac. Eep. 622, a tenant in common had undertaken to grant to a stranger the right to perpetually divert water from the common land upon the several land of the grantee ; and in support of that grant the respondent had cited Stark v. Barrett, and Gates v. Salmon, and other cases in which the rule applicable to convey- ances of specific tracts was discussed, and had sought to invoke that doctrine in behalf of the asserted water-right. And it was in that connection that the court said that the former decisions on the subject should not be pushed further ; that is, that they should not be so extended as to embrace the asserted right of one tenant in common to create an easement on the common land. The case, however, recognizes the rule as hereinbefore stated. (It may be remarked, as was said in that case, that it appears, from many cases in the California Eeports, to have been a common custom among the owners of large Mexican grants in California for individual co-tenants to convey specific parcels of the common land. The custom probably grew out of the fact that during the long periods of time necessary to complete titles, to obtain patents, and to make partitions there could be but little beneficial use of the land unless it were segregated into parcels by the co-tenants and their grantees. ) Our conclusion on this point is that the court below was right in holding that specific tracts embraced in deeds purporting to con- vey the whole title should be allotted in severalty to the grantees therein, and charged, respectively, to the shares and interests of ADJOINING TRACT EEFEKRED TO AS A MONUMENT. 691 the granting co-tenants, where it could be done without materal injury to the rights of the co-tenants not joining in such deeds, in manner as set forth in the findings and decree. 2. There were also quitclaim deeds of interest in specific tracts ; and with respect to them the court found as follows : " And it further appearing that various of said co-tenants sold fractional undivided interests in specific tracts out of the com- mon land of said rancho, and executed to the purchasers deeds of conveyance purporting to convey interests in such specific tracts to the purchasers in fee, the interests described in such deeds should be allotted and set apart in partition to such purchasers, or their grantees, respectively, in such manner as to make such deeds effectual as conveyances of such interests, if the same can be done without material injury to the rights and interests of other co-tenants who did not join in such conveyances, or those claiming under such other co-tenants, or any of them ; and the interests so conveyed, and herinaf ter designated as fractional interests of specific tracts, are to be charged in proportion to their value to the interests in said rancho of the same grantors." We see no error in this find- ing. The grantee in such a deed cannot expect, or legally claim, more than the deed purports to convey, which is merely the share of the grantor in the tract. The contention of some of the appellants that such a deed should be filled by an allotment of the whole tract in severalty cannot be maintained, and where there is a covenant of warranty in such a deed it attaches merely to the interest which the deed purports to convey. Kimball v. Semple, 25 Cal. 441; Gee v. Moore, 14 Cal. 472; Morrison v. Wilson, 30 Cal. 344 ; San Francisco v. Lawton, 18 Cal. 365 ; Barrett v. Birge, 50 Cal. 655; Brannock v. Monroe, 65 Cal. 491 ; 4 Pac. Eep. 488. (The remainder of the decision is omitted, it not being con- sidered necessary for illustration of the particular principle, for which the case is reported . ) Adjoining Tract Previously Conveyed Referred to in a Sub- sequent Conveyance as a Monument. Probett V. Jenkinson, 105 Mich. 475; 63 N. W. 648. McGeath, C. J. This is a bill to quiet title to a gore-shaped parcel of land, which was included in what was known as the " Steam-Mill Keserve " on Black river, in the city of Port Hu- ron. The reserve fronted on the river, and the land adjoining on the north, east, and west was platted prior to 1837. In 1866 692 THE EEQUISIXES AND COMPONENT PARTS OF A DEED. Skinner & Ames, the then owners of the reserve, subscribed and recorded the plat. In that plat the parcel lying south of River street and west of Bridge street was distinguished as " Lot C." In 1876, Skinner & Ames subdivided lot C. according to the following plat: (Plat omitted.) This plat was not acknowledged or recorded. In the same year they mortgaged lots 1, 2, 3, and 4, to one Fish, and later in that year gave a mortgage to Martha C. T. Williams, of De- troit, upon the remainder of said lots. The description in the Williams mortgage is as follows : " Lots 5, 6, 7, S, 9, 10, 11, and 12 in the Skinner & Ames plat of a part of the Black Eiver Steam-Mill reserve, being all that part of said reserve south of Eiver street and west of Seventh Street bridge, except lots 1, 2, 3, and 4, shaded green in the map hereto annexed. As stated in the mortgage, there was attached to it a map, which was a copy of the original plat in the possession of Skinner & Ames, in so far as the lots south of River street and west of Seventh Street bridge were concerned, except that it did not have the letter C upon it, nor did it have all of the dimensions and monuments that were upon the original plat. Lot 10 is shown on this map as being 60 feet on River street, and very much wider upon Black river, but the figures indicating its width on the river are not given as they are on the original plat, where they are stated at 90 feet. This map was a tracing made on the same scale as the original plat, and when the mortgage came to be recorded the map was detached from the mortgage, and attached to the record in the register's office, where it has since remained. In February, 1878, complainant purchased from Skinner & Ames lots 11 and 12. Subsequently Mrs. Williams' mortgage was foreclosed in chancery, and on the 28th of January all of the lots described in the mortgage were bid off to Mrs. Martha C. T. Williams. On the 27th day of July, 1880, Mrs. Williams conveyed the two lots to the complainant, describing them as follows : " Lots 11 and 12 of the Skinner & Ames plat of the subdivision of a part of the Black River Steam-Mill reserve, in said city of Port Huron, south of River street and west of Seventh street bridge, being lots now occupied by said Probett, and on which he has located limekilns, and were conveyed to him by Thomas S. Skinner and wife and Wallace Ames and wife." The next year, in May, 1881, the complainant, desir- ing more land, through Mr. B. C. Farrand, an attorney at Port Huron, applied to Mr. Elisha Taylor, representing Mrs. Martha Williams, to know what Mrs. Williams would take for lot 10, or for the west half of that lot, and received a reply that she would take $1,000 for the whole lot, or $600 for the west half ADJOINING TRACT EEPEBKED TO AS A MONUMENT. 693 of it. The complainant accepted the proposition for one-half of the lot at $600. And on the 10th day of May, 1881, Mr. Elisha Taylor drew up the deed, and it was executed by Mrs. Williams, and sent, through Mr. Farrand, to the complainant. When this deed was drawn, Mr. Taylor supposed the lot was 50 feet wide both on the river and on River street, whereas, as a matter of fact, it was 50 feet wide on River street, and had a frontage on Black river of 90 feet. The description in this deed is as fol- lows: " A parcel of land twenty-five feet wide in front on the south side of River street, and of the same width extending southerly to the channel bank of Black river, and known as the westerly part of lot 10 of the Skiuuer & Ames plat, south of River street and West of Seventh street." The complainant purchased the west half of lot 10 in May, and in June following, John Jenkinson, the husband of the defendant, through Mr. Elisha Taylor, contracted with Mrs. Williams for the purchase of lots 5, 6, 7, 8, 9, and the easterly half of lot 10, according to said Skinner & Ames plat of said Steam-Mill reserve. The date of this contract is fixed by John Jenkinson, on page 113 of the record, as in June, 1881. There was nothing upon the ground to designate where the division line between the east half of lot 10 and the west half of such lot should be located when com- plainant purchased, or when Mr. John Jenkinson contracted for the east half, nor was there at the time when the defend- ant afterwards obtained her deed from Mrs. Williams ; but the premises were what might be termed open, or a common, so far as anything indicating the division line between complainant's and defendant's premises. On the 23d day of July, 1884, at the request of John Jen- kinson, the husband of the defendant, Mrs. C. T. Williams, through Mr. Elisha Taylor, executed and delivered to the defend- ant a deed of the lands embraced in the contract, describing them in such deed as follows: " All that part of the Black River Steam-Mill reserve situate and lying between River street and Black river, and bounded on the westerly side by lands owned by Stephen T. Probett, and bounded on the easterly side by River street, lots numbered 1, 2, 3, and 4 of Skinner & Ames plat, and mortgaged by Skinner & Ames to Arthur Fish, and south by the channel bank of Black river, — intending hereby to convey lots numbered 5, 6, 7, 8, 9, and the easterly half of lot 10, according to the Skinner & Ames plat of that part of said reserve, without gurantying the correctness of said plat, though it is supposed to be correct, subject to all taxes and assessments in the year 1881 and subsequently, which the now party of the second part assumes, and is to pay and cancel, if 694 THE REQUISITES AND COMPONENT PARTS OP A DEED. not already paid." The record was recorded on July 31, 1884, On the 24th day of July, 1884, John Jenkinson and his wife, the defendant, Eliza Jane Jenkinson, made a mortgage to the Michigan Mutual Life Insurance Company upon the east half of lot 10, and other lands, describing said land in said mortgage as follows: "Lots 5, 6, 7, 8, 9, and the east half of lot 10, of that part of BlackRiver Steam-Mill reserve lying between Black river and River street, bounded on the west by land owned and oc- cupied by Stephen T. Probett, on the west by the lands mortgaged by Skinner & Ames to Arthur Fish, August 26th, 1876 ; said lots being numbered according to Skinner & Ames plat of a part of Black Eiver Steam-Mill reserve." The application to the in- surance company was made by Mr. Jenkinson and his wife, through Mr. Farrand, for the purpose of taking up the contract and obtaining the deed. This deed and mortgage were executed three years after the execution of the deed by Mrs. Williams to the complainant of the west half of the lot, and likewise three years after the contract made by her to the husband of the defendant, of the east half of said lot. At the time that the complainant purchased the west half of lot 10, he had not seen the plat, or a copy of the plat, referred to as the " Skinner & Ames Plat," and did not till 1885, when he went to Mr. Skinner, and was shown the plat. And, at the time that Mr. Taylor drew the deed to complainant for the west half of lot 10, Taylor had no knowledge in regard to the width of the lot on the river. In 1885 John Jenkinson asserted to complainant that the latter only had 125 feet, and complainant then examined his deed, and also saw Mr. Skinner, and obtained from him the original plat, and took the same to Detroit, and showed it, together with his deed, to Mr. Taylor; and Mr. Taylor, in order to correct the mistake which had been made, on the 14th day of December, 1885, drew up and executed a quitclaim deed from Mrs. Martha C. T. Will- iams to the complainant of the west half of lot 10, which deed was recorded December 16, 1885. It is clear from this record that, when complainant purchased the portion of lot 10, both he and Taylor supposed that said lot was of the same width from front to rear ; that both supposed that the conveyance made included all of the west half of lot 10; and that, when the conveyance was made to Jenkinson, Taylor then supposed that the west half of lot 10 had hitherto been con- veyed to Probett, and that the conveyance then being made in- cluded all of the remainder of said lot 10. The question, how- ever, hinges, not upon the intention of the parties respecting the land intended to be conveyed by the deed to complainant, but rather upon the construction to be given to the description SPECIFIC DESCRIPTION CONTROLS GENERAL DESCRIPTION. 695 in the deed from Martha C. T. Williams to defendant. The case is, we think, ruled by Plummer v. Gould, 92 Mich. 1 ; 52 N. W- 146. The intention of the grantor is clearly expressed in the conveyance to defendant. Defendant contends that she went upon the land, and that a line corresponding to the line as given in the conveyance to complainant was pointed out to her by Probett as the east line of his land, but this is denied. She had examined a plat which, although it did not give distances on the south line, clearly indicated that the lots were wider on the river, and she accepted the deed which clearly ex- pressed the grantor's intention. The decree is affirmed, with costs to complainant. The other justices concurred. A Specific Descpiption will Control General Description — Reference to Other Deed, or Map. Prentice v. N. Pac. Ky. Co., 154 U. S. 163. In error to the circuit court of the United States for the district of Minnesota. This was an action of ejectment by Frederick Prentice against the Northern Pacific Railroad Company, the St. Paul & Duluth Railroad Company, and Owen Fargusson. On trial without a jury the circuit court rendered judgment for defendants. Plain- tiff brought error. This action of ejectment was brought, September 7, 1883, to recover an undivided half of certain lands in the city of Duluth, county of St. Louis, Minn. Pursuant to a written stip- ulation of the parties, the case was tried without a jury, and upon the question of title alone, and resulted — Mr. Justice Miller and Judge Nelson concurring — in a judgment for the defendants. 43 Fed. 270. The case made by the special finding of facts is substantially as follows : — The sixth section of article 2 of the treaty of the 30th day of September, A. D. 1854, between the United States and the Chippewa Indians of Lake Superior and the Mississippi, ratified (pursuant to a resolution of the United States Senate passed on the 10th day of January, 1855 ) by the president on the 29th day of January, 1855, whereby those Indians ceded to the United States certain territory lying adjacent to the headwaters of Lake Superior, contained the following provision, viz.: " And being desirous to provide for some of his connections who have ren- dered his people important services it is agreed that Chief Buffalo may select one section of land at such place in the ceded 696 THE REQUISITES AND COMPONENT PAETS OP A DEED. territory as he may see fit, which shall be reserved for that pur- pose and conveyed by the United States to such person or persons as he may direct." 10 Stat. 1110. Under the provision of the treaty, and on the day of its date. Chief Buffalo, by an instrument of writing executed by him, and filed in the ofiSce of the United States commissioner of Indian affairs at Washington, selected the land to be conveyed by the United States, and appointed the persons to whom it was to be conveyed, indicating the selection and appointment as follows : "I hereby select a tract of land one mile square, the exact boun- dary of which may be defined when the surveys are made, lying on the west shore of St. Louis bay, Minnesota Territory, immediately above and adjoining Minnesota point ; and I direct that patents be issued for the same, according to the above recited provision, to Shaw-bwaw-skung, or Benjamin G. Arm- strong, my adopted son , to Matthew May-dway-gwon, my nephew; to Joseph May-dway-gwon and Antoine May-dway- gwon, his sons, — one quarter section to each." Matthew, Joseph, and Antoine, under date of September 17, 1855, executed and delivered to Armstrong an instrument assign- ing to him their right, title, and interest under the appointment and selection of Chief Buffalo. That assignment, after referring to the treaty, and the above instrument of selection and appoint- ment, provided: — " In consideration of the premises, and of one dollar to us in handpaidbythe said Benjamin G.Armstrong, the receipt whereof is hereby acknowledged, we do hereby sell, assign and transfer, jointly and severally, all our right, title, interest, equity, claim and property in and to the said land, and all our right and equity in and to the said instrument so made by the said Buffalo, jointly and severally, and our, and each of our, right and equity to have patents issued to us, according to the above-cited directions of the said Buffalo; and we hereby direct, jointly and severally, that patents issue to said Benjamin G. Armstrong accordingly." This instrument of assignment was executed by Matthew, Joseph and Antoine in the presence of, and before, the United States agent and the United States interpreter. Armstrong and wife, September 11, 1856, made, executed, and delivered to the plaintiff herein a deed of conveyance, the cited consideration being $8,000. The land so conveyed is thus described in the deed: " One undivided half of all the following described piece or parcel of land, situate in the county of St. Louis and territory of Minnesota, and known and described as follows, to wit: Beginning at a large stone or rock at the head of St. Louis Eiver bay, nearly adjoining Minnesota point, com- SPECIFIC DESCRIPTION CONTROLS GENERAL DESCRIPTION. 697 mencing at said rock, and ruuning east one mile, north one mile, "west one mile, south one mile, to the place of beginning, and being the land set off to the Indian chief Buffalo at the Indian treaty of September 30th, A. D. 1854, and was afterwards dis- posed of by said Buffalo to said Armstrong, and is now recorded with the government documents, together with, all and singular, the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof," etc. The deed , sealed and delivered i n the presence of a justice of the peace of Wisconsin, was acknowledged by the grant- ors on the day of its execution before that officer, whose official character was certified by the clerk of the circuit court of the county where the acknowledgment was made. It was not certi- fied to have been acknowledged in accordance with the laws of Wisconsin. The deed was duly recorded in the county of St. Louis, territory of Minnesota, on the 4th day of November, A. D. 1856. Armstrong and wife, on the 27th day of August, 1872, executed and delivered to the plaintiff a confirmatory deed, which was duly recorded in the county of St. Louis, State of Minnesota, September 2, 1872. That deed was in these words : — " Whereas, on the eleventh day of September, in the year one thousand eight hundred and fifty-six, we, Benjamin Gr. Arm- strong and Charlotte Armstrong, wife of aforesaid Benjamin G. Armstrong, conveyed by a quit-claim deed to Frederick Prentice, of Toledo, Ohio, the undivided one-half part of all our interest in certain lands situated at or near the head of St. Louis bay, and intended to describe our interest in what is known as the ' Chief Buffalo Tract,' at the head of St. Louis bay, Minne- sota Territory, and then believing that the description in said deed would cover or was the tract that would be patented to us by the United States of America, according to said Buffalo's wishes, and a contract we held from the heirs of said Buffalo, but, to def- initely fix upon the lands designed to be conveyed, it was stated in said deed to be the land set off to the Indian chief Buffalo at the Indian treaty of September thirtieth, in the year one thou- sand eight hundred and fifty-four ; and, further, I, the said Arm- strong, gave a contract on the tenth day of September, in the year one thousand eight hundred and fifty-six, to the said Fred- erick Prentice, binding ourselves and heirs to give said Frederick Prentice any further writing or instrument he might require. '♦ And on the first day of July, in the year one thousand eight hundred and fifty-seven, I, Benjamin G. Armstrong, and Char- lotte Armstrong, agreed to and did sell to Frederick Prentice 698 THE REQUISITES AND COMPONENT PARTS OF A DEED. the other one-half of said Bufialo tract, for which said Frederick Prentice paid us something over two thousand ($2,000) dollars, and since that time has paid us to our full satisfaction for the whole property; and we agreed to, and do by these presents, confess payment in full for the whole of the above tract, in compliance of the first deed for the one undivided half, and the carrying out of the contract to sell the balance July first, in the year one thousand eight hundred and fifty-seven. This is in- tended to cover the land deeded by us to the said Prentice in the deed given on the eleventh day of September, one thousand eight hundred and fifty-six, and recorded in Liber A of Deeds, page 106, at Duluth, State of Minnesota, and the land included in the contract of the first of July, eighteen hundred and fifty- seven, and intended to cover the lands as described in patents from the United States of America to Benjamin G. Armstrong, Matthew May-dway-gwon, Joseph May-dway-gwon, and An- toine May-dway-gwon, and described as follows : To Ben- jamin G. Armstrong, the west half of the southwest quarter and the lot number five (5) of section twenty- seven, and lot No. three (3) of section thirty-four, containing together (182.62) one hundred and eighty-two and sixty-two one-hundredths acres ; and to Joseph May-dway-gwon the southeast quarter of section twenty-eight, containing one hundred and sixty acres; and Antoine May-dway-gwon, the east half of the northeast quarter of section twenty-eight, and the west half of the northwest quarter of section twenty-seven, con- taining one hundred and sixty acres. ♦'And to Matthew May-dway-gwon the southwest quarter of section twenty-two, containing one hundred and sixty acres, all of the above being in township fifty north, of range fourteen west, of the fourth principal meridian. State of Minnesota; and the three last named pieces of land have since been deeded by the said Matthew, Joseph, and Antoine May-dway-gwon to Char- lotte Armstrong, but previous to the date of said deeds the above- named Joseph, Matthew, and Antoine May-dway-gwon had as- signed or transferred all their right, title, and interest therein to the said Benjamin Armstrocg. I, the aforesaid Benjamin G. Armstrong, did sell by deed and contract to Frederick Prentice, which I, the said Charlotte Armstrong, knew at the time, but did not know but that, by getting another deed or conveyance after the patents were issued, we could sell the property, "but am not satisfied that we had sold and assigned all our right, title, and interest to Frederick Prentice previous to our deed- ing to any other person or persons, and that we had no right to deed or convey to any other person or persons, as the SPECIFIC DESCRIPTION CONTROLS GENERAL DESCRIPTION. 699 title to the lands above described was then, virtually and by right, vested in the said Frederick Prentice, and that the first deed for the one-half and the contract for the remaining half of said land, with the payment thereon made at the time by the said Fred- erick Prentice, bound us to give him good and sufficient deeds to said property whenever so demanded ; and we do hereby assign and quitclaim all our right, title, and interest now or at any time held by us to all the above-described property in fulfillment of our agreement with the said Frederick Prentice." The tract of land which Chief Buffalo had designated as his selection on the day of the treaty did not correspond with the section lines when the land came to be surveyed into sections, and part of it was found to be occupied and claimed by certain Indian traders under the treaty. After a lengthy correspond- ence and investigation in the department of the interior, the relatives of Buffalo, entitled to the land reserved for them, con- ceded the validity of the claims of these Indian traders, and, in lieu of the lands thus held by them, received other lands adjacent to that selected by Buffalo to make up the quantity of 640 acres, but not in the form of a parallelogram, though maintaining a continuous connection. A report of the secretary of the interior to the president, under date of September 21, 1858, and made part of the find- ings, contained, among other things, the following: — " Now, therefore, under all the circumstances of the case, it having been fully proved that these relatives of the Chief Buf- falo acquiesce in the selection made for them by Agent Gilbert, and desire that patents should issue to them for this land, and the commissioner of Indian affairs having recommended such approval, I have respectfully to request that you will approve the same, in order that patents may issue in accordance with their request as follows, viz.: To Matthew May-dway-gwon, S. W. ^ Sec. 22, T. 50 N., E. 14 W., 160 acres ; to Antoine-May-dway- gwon, E. ■!• N. E. i Sec. 28 and W. -J N. W. ^ Sec. 27, T. 50 N., E. 14 W., 160 acres; to Joseph May-dway-gwon, S. E. ^ Sec. 28, T. 50 N., E. 14 W., 160 acres ; to Shaw-bwaw-skung, or Benjamin G. Armstrong, W. i S. W. i Sec. 27, lot No. 3, Sec. 34, lot No. 5, Sec. 27, 182.62." The patent to Armstrong, issued October 23, 1858, contained the following recitals and description of the land embraced by it: — " Whereas it appears from a return dated the twenty-seventh day of September, one thousand eight hundred and fifty-eight, from the office of Indian afiairs to the general land office, that there has been selected and approved for ' Shaw-bwaw-skung, 700 THE EEQDTSITES AND COMPONENT PARTS OF A DEED. or Benjamin G. Armstrong,' as one of the ' connections ' of said Ciiief Buffalo, the west half of the southwest quarter and lot number five, both of section twenty-seven, and lot number three of section thirty-four, containing together one hundred and eighty-two acres and sixty-two hundredths of an acre, all in township 50 north, of range 14 west of the fourth principal meridian, in the State of Minnesota. Now, know ye," etc. The parties, at the trial, entered into the following stipula- tion: — " It is admitted for the purposes of the trial of the above- entitled action : That the land in dispute, described in complaint of plaintiff herein, is part of the land described and included in the patent of the United States to Benjamin G. Armstrong, dated October 23, 1858, and recorded in Book B, at page 500, in the office of the register of deeds of St. Louis County, Minnesota. That the defendants are in possession of the specific portions of said land described in their respective answers herein. And, as respects the Northern Pacific Eailroad Company, it is in posses- sion of the certain portions of said land colored blue upon the map hereto attached, and that all the defendants assert title to said respective portions, derived from a certain deed made and executed by Benjamin G. Armstrong and wife to John M. Gil- man, dated August 31, 1864, and recorded in the oflice of the register of deeds of St. Louis County, Minnesota, September 12, 1864, in Book C of Deeds, at page 665, and from a certain other deed made and executed by Benjamin G. Armstrong and wife to Daniel S. Cash and James H. Kelly, bearing date October 22, 1859, and filed for record in the office of the register of deeds in and for said St. Louis County, January 5, 1860, and thereafter recorded in Book C of Deeds, at page 206. That the said de- fendants have succeeded to whatever title or right said Kelly and Cash and said Gilman obtained by virtue of said deeds, respectively, in and to the premises in dispute. That at the commencement of this suit said defendants withheld said prem- ises, and the rents, issues, and profits of the same, from said plaintiff, although they had theretofore been requested to admit him to the possession of an undivided half (^) of said premises, and the rents and profits thereof. That the undivided half (^) of the portion of the premises described in said complaint, claimed by each of said defendants, is worth fifty thousand dollars ($50,000) and upwards." The court found the facts in accord- ance with this stipulation. The United States government surveys of the lands ceded by the treaty of September 30, 1854, to the United States, had not SPECIFIC DESCRIPTION CONTROLS GENERAL BESCRIPTION. 701 been made at the date of the deed from Armstrong to plaintiff, and were not made until the year following that date. Gilman took the above conveyance without actual notice of the deed from Armstrong to the plaintiff of September 11, 1856, or that plaintiff claimed an interest in the land so conveyed to him. The defendants herein claim title to the pieces or parcels of land in controversy as grantees of Gilman, and under and through the deed to Gilman of August 31, 1864. The large stone or rock at the head of St. Louis River bay, nearly adjoining Minnesota point, described in the deed from Armstrong to Prentice, is the beginning of the boundary of the tract conveyed, is well identified, and was gen- erally known to the few people familiar with the place, and was recognizable at the time of the trial below ; and a mile square, measured from that point, as called for in the deed, would wholly depart from the shore of St. Louis bay, and would cover about one-half or three-fifths land, and the remainder the water of Lake Superior. The land selected by Buffalo Chief lay upon the shore of St. Louis bay, immediately adjoining Minnesota point ; and this selection was followed, as near as it could be, by the patents of the United States issued to satisfy that reservation, considering the elimination from the mile squai'e of the lands held by the traders, and the vagueness of Buffalo's description, and the ne- cessity of conforming the final grant to the surveys of the United States. If the lines of the course called for as east and west in the deed of Armstrong to Prentice, under which the plaintiff asserts his title, were exactly reversed, the description in that deed would include a large part of the land actually selected by Buf- falo Chief, and also included in the patents from the United States, but it would not include the lands sued for in this action. The instrument executed by the Chief Buffalo, dated Septem- ber 30, 1854, was the only selection or appointment ever made by him under the sixth clause of the second article of the said treaty. Chief Buffalo died in the month of October, 1855. At the date of the deed to Prentice, of September 11, 1856, Armstrong did not have any interest in land in St. Louis County, Minnesota Territory, except what he was entitled to under the Buffalo selection and appointment above referred to, and under the above assignment from the other. The conclusions of law found by the circuit court were: — That the appointment of persons to whom the United States 702 THE REQUISITES AND COMPONENT PARTS OF A DEED. were to convey the section of land reserved by the above pro- vision of said treaty, made by Chief Buffalo on the 30th day of September, 1854, was a valid and sufficient appointment under that provision, and, upon the ratification of the treaty, vested in Armstrong and the other appointees named such an interest as the treaty gave to the land so reserved ; That the patent of the United States to Armstrong, and his acceptance of it, was a valid execution of the treaty on that subject; That the deed from Armstrong to plaintiff, of September 11, 1856, was, in its execution, acknowledgment, and recording, a valid and sufficient deed, and its record constructive notice of its contents ; That the description in the deed of Armstrong to plaintiff, of September 11, 1856, is insufficient to convey his interest in or title to any other or different tract of land to which he might have been entitled under said treaty than the tract described therein, and the said deed is ineffectual as a conveyance to plain- tiff of any interest or title, except such as Armstrong had in or to the land therein described, and the plaintiff took no title under it to the land for the possession of which this action is brought. That the quitclaim deed from Armstrong to Gilman, of August 31, 1864, conveyed to the latter such interest, and no more, as Armstrong had in the land therein described at the date of said deed ; and That the plaintiff is not entitled to recover in this action, and judgment must go in favor of the defendants, for their costs and disbursements. Mr. Justice Harlan, after stating the facts in the foregoing language, delivered the opinion of the court. The court below correctly interpreted the decision in Prentice V. Stearns, 113 U. S. 435, 5 Sup. Ct. 547, as holding that the deed from Armstrong to Prentice, under which alone the latter can assert a title to the land in controversy, was an instrument designed to convey a defined tract or parcel of land, not any possible interest existing in Armstrong under the treaty with the Chippewas, the selection of Buffalo, and the appointment that the lands selected by him should be conveyed to Armstronfy and other named relatives. This question was reargued in the court below, in the present case, in the light of additional facts supposed to have been adduced. Mr. Justice Miller, in his opinion in this case, said : " We remain of the opinion we were on the former trial. The first SPECIFIC DESCKIPTION CONTKOLS GENERAL DESCRIPTION. 703 -descriptive clause of the deed from Armstrong to Prentice is of a tract of land a mile square, beginning at a large stone or rock, which, as a matter of fact, we find in the present case is now identified, and was well known at the time the deed was made. The description proceeds with the points of the compass one mile east, one mile north, one mile west, one mile south, to the place of beginning. It would be difficult, the beginning point being well ascertained, to imagine that Armstrong intended to convey any other land, or any other interest in land, or interest in any other land, than thiit so clearly defined; and, if that de- scription is to stand as a part of the deed made by Armstrong to Prentice, it leaves no doubt where the land was, and there is no occasion to resort to any inference that he meant any other land than that. It is now found as a fact that this boundary would include a surface for one-half to three-fourths of which is land and the remainder is water of Lake Superior." 43 Fed. 270. The specific description by metes and bounds of the land conveyed by the Armstrong deed to Prentice, namely, " one undivided half of all the following described piece or parcel of land, situate in the county of St. Louis and territory of Minnesota, and known and described as follows: Beginning at a large stone or rock at the head of St. Louis Elver bay, nearly adjoining Minnesota point, commencing at said rock, and running east one mile, north one mile, west one mile, south one mile, to the place of beginning," — does not, it is conceded, embrace the land in dispute. Indeed, the plaintiff insists, on several grounds, that that description should be rejected altogether, as inaccurate and mistaken ; and he is driven to rest his claim of title to the lands in dispute upon the clause of the deed immedi- ately following the words above quoted, namely, " and being the land set off to the Indian chief Buffalo, at the Indian treaty of September 30, 1854, and was afterwards disposed of by said Buffalo to Armstrong, and is now recorded with the government documents." But the plaintiff, although compelled to rely upon the words last quoted, insists that theymea:n what, in our opinion, is not justified by a fair interpretation of them. It seems entirely clear that the words in the clause beginning " and being the land," etc., were intended to describe generally what had been before specifically described by metes and bounds; that "and being " is equivalent to " which is," in which case this clause of general description — the specific description by metes and bounds being rejected as not embracing the land — cannot, it is conceded, be regarded as an independent description of the subject of the conveyance 704 THE REQUISITES AND COMPONENT PARTS OP A DEED. It is said that the deed should not be construed as intended to convey merely a specific tract, and thereby make it inoperative, because, at the time it was executed, Armstrong did not have any interest in a specific tract that he could convey, but only a gen- eral right, under the Bufililo document, to have land located and patented to him by the United States. Eeferring to the argu- ment made by counsel in support of this view, Mr. Justice Miller said : " They say that the reference to the land set off to the Indian chief Buffalo at the treaty of 1854 meant, not any definite piece of land, but any land which might come to Bufialo or his appointees, of whom Armstrong is one, by the future pro- ceedings of the government of the United States in that case ; and that, no matter where such land was found, provided it was within the limits of the land granted by the Chip- pewa treaty, then the deed from Armstrong to Prentice was intended to convey such after-acquired interests which were patented to the parties by the United States. We do not see anything in the whole deed or transaction between Armstrong and Prentice that points to or indicates any such construction of it. Both clauses of the description are definite as to the land conveyed, and treat it as a piece of land well described, well known, and well defined. Of course, any man endeavoring to ascertain what land was conveyed under that grant would suppose that, when he found the stone or rock which we now, as a matter of fact, find to have an existence, and can be well identified, he had bought a mile square, accord- ing to the points of the compass, the southwest corner of which commenced at that rock. He would not suppose that he had bought something that inight be substituted in lieu of that mile square by future proceedings of the government of tlie United States. And so with regard to the other description. ' Buffalo had made his selection, had described the land which he designed to go by that treaty, not to him, but to his relatives, whose names are given ; and it was an undivided half of this land thus selected by the Buffalo chief, and not other land, or different land which might come to Armstrong, that he conveyed, and intended to convey, to Prentice." After distinguishing this case from Doe v. Wilson, 23 How. 457, and Crews v. Burcham, 1 Black, 352, Mr. Justice Miller proceeded : " But, in the case before us, not only had Buffalo made his selection, and designated the parties to whom the land should go, but the selection had definiteness about it, to a certain extent. It was a thing which could be conveyed specifically, and which Armstrong undertook to convey specifically. It la not necessary that we resort to the supposition that Armstrong was SPECIFIC DESCRIPTION CONTROLS GENERAL DESCRIPTION. 705 talking about some vague and uncertain right — uncertain, at least, as to locality, and as to its relation to the surveys of th& United States — which he was intending to convey to Prentice, instead of the definite land which he described, or attempted to describe. If such were his purpose in this conveyance, it is remarkable that he did not say so in the very few words neces- sary to express that idea, instead of resorting to two distinct descriptive clauses, neither of which had that idea in it, one of which is rejected absolutely by the plaintiff's counsel as wholly a mistake, and the other is too vague in its language to convey even what plaintiff claimed for it. We are not able, therefore, to hold, with counsel for plaintiff, that, if this conveyance does not carry the title to any lands which can be ascertained by that description in the deed, resort can be had to the alternative that the deed was intended to convey any land that might ultimately come to Armstrong under the treaty, and under the selection, and under the assignment to Buffalo." 43 Fed. 276. We are entirely satisfied with these views. It results that neither the description by metes and bounds, nor the general 'lescription of the lands conveyed by the deed under which the plaintiff claims, is sufficient to cover the lands here in dispute. Another matter deserves notice. It is found as a fact that if the lines of the course called for as east and west in the deed of Armstrong to Prentice, under which the plaintiff asserts title, were exactly reversed, the description in the deed would include a large part of the land actually selected by Buffalo chief, and also included in the patents from the United States. But this fact is immaterial, for it is found that if the course were reversed, as suggested, it would not include the particular lands here in controv^sy. The case, then, is this : Looking into the deed under which the plaintiff claims title, for the purpose of ascertaining the inten- tion of the parties, we find there a specific description, by metes and bounds, of the lands conveyed, followed by a general description which must be held to have been intro- duced for the purpose only of showing the grantor's chain of title, and not as an independent description of the lands so conveyed. As neither description is sufficient to cover the lands in suit, there can be no recovery by the plain- tiff in this action of ejectment, whatever may be the defect, if any, in the title of the defendants. If this were a suit in equity to compel a reformation of the deed upon the ground that, by mistake of the parties, it did not properly describe the lands in- tended to be conveyed, and if such a suit were not barred by time, a different question would be presented upon the merits. 45 706 THE REQUISITES AND COMPONENT PARTS OF A DEED. What has been said renders it unnecessary to consider whether the deed from Armstrong and wife to Prentice was so acknowl- edged and certified as to entitle it, under the laws of Minnesota, to record in that State, and, by such record, become legal notice of its contents to Gilman, and those claiming under him. We perceive no error in the record, to the prejudice of the plaintiff in error, and the judgment is affirmed. Habendum Clause, When it Controls the Premises. Dorein?. Gillum, 136 Ind. 134; 35 N. E. 1101. Dailet, J. This was an action begun in the Jay circuit couil; by the appellant, Emory E. Doren, to enjoin the sale of certain real estate by the appellee Stephen A. D. Gillum, sheriff of Jay County, on an execution issued on a judgment obtained by the ap- pellee Adelma Lupton against Robert E. Rees, Charles Lord, and William H.Hubbard. Such proceedings were had that a restraining order was granted pending litigation. Briefly stated, the amended complaint described the real estate, and alleged the appellant to be the owner in fee simple, and in the actual and full possession, of the same. Also, that on the 3d day of February, 1891, the appellee Lupton ordered an execution issued on a judgment in his favor for $416, obtained in the Jay circuit court on the 9th day of January, 1885, which execution was issued and directed to the sheriff of Jay County, Ind., who, under said execution, levied upon the real estate described, and threatened and was about to advertise for sale, and sell, the same on execution, and would do so, unless restrained by the order of the court ; that William H. Hubbard was not, before the rendition of said judg- ment, nor at the time, nor has he since become, the owner of said real estate ; that, if the sale of said tract be made, it will harass and annoy the appellant by litigation growing out of such sale, and will work irreparable loss and injury to him ; that such a sale would cast a cloud upon his title, and would affect the value of his property in a manner not susceptible of measurement or redress in an action at law ; and he prays that the sale be enjoined. To this complaint, each of the appellees filed separate demurrers, which were submitted to the court, and overruled, and excep- tions duly reserved thereto, whereupon the appellee Gillum answered by general denial, and the appellee Lupton in two paragraphs, the first of which was a general denial. The second paragraph alleges the judgment against said Rees, Lord, and Hubbard, the issuing of the execution thereon, and that said Hubbard was then, and still is, the owner of the real estate de- WHEN HABENDUM CLAUSE CONTROLS THE PREMISES. 707 scribed, having acquired title thereto by deed executed on the 25th day of September, 1882, which deed is in the words and figures following, to wit :" This indenture witnesseth that Will- iam H. Eush and Eliza J. Eush, of Jay County, in the State of Indiana, convey and warrant to Levi Hubbard and Margaret Hubbard, of Jay County, in the State of Indiana, for the sum of one thousand dollars, the following real estate in Jay County, in the State of Indiana, to wit : The southwest quarter of the south- west quarter of section twenty-six (26), township twenty-three (23) north, of range twelve (12) east, containing forty (40) acres, more or less; to have and to hold the same during their natural lives, and each of their natural lives, and then descend to William H. Hubbard, and the heirs of his body. In witness whereof, the said William H. Eush and Eliza J. Eush, his wife, have hereunto set their hands and seals this 25th day of Septem- ber, 1882. William H. Eush. Eliza J. Eush." (Here follows an allegation of acknowledgment and recordation.) The answer further avers that on the 24th day of May, 1890, and after the death of the grantee Margaret Hubbard, the appellant, procured a quitclaim deed from Levi Hubbard, without having paid any con- sideration therefor, and with full knowledge of the title thereto of William H. Hubbard, and of the judgment of said Lupton ; that the appellant purchased the land at a sale for taxes, and holds a deed therefor from the auditor of Jay County, but that said deed is illegal and void, and conveys no title, because said land was sold without having first offered the life estate then thereon, and without having first made proper effort to collect any taxes then due out of the personal property then owned by the said Levi Hubbard, and without having properly advertised or listed said land, and because the same was sold for more than was due on said tract, and for other irregularities and illegal acts mentioned in the appraising, listing, advertising, and selling of said premises. The appellant, Doren, moved the court to require the several causes of defense therein separated into paragraphs and numbered, which motion was overruled, and an exception taken. The first error assigned by appellant, upon which he seeks a reversal of this case, is in the overruling of this motion, and in support of it he urges duplicity in the pleading. No question is presented under this assignment of eiTor, as no bill of excep- tions signed by the judge appears in the record. The appellant then filed a demurrer to this second paragraph of answer for want of sufficient facts, which was overruled by the court, and exception taken. Thereupon appellant filed a reply and the cause, being at issue, was submitted to the court for trial. The court 708 THR REQUISITES AND COMPONENT PARTS OF A DEED. found for the appellees, entered a decree dissolving the restrain- ing order theretofore entered, and rendered judgment against appellant for costs. Appellant moved for a new trial, on four reasons assigned, which motion was overruled by the court, and excepted to at the time. Thereupon appellant prayed an appeal to this court, which was granted. The second assignment of error, that "the court erred in over- ruling plaintiff's demurrer to the second paragraph of the sepa- rate answer of the defendant Adelma Lupton," raises the principal question for consideration in this case, because it involves the construction of the deed from Eush and wife to Levi and Mar- garet Hubbard. It is urged by the appellant that '* by the prem- ises of this deed, 'convey and warrant,' title in fee simple is passed as effectually as by a grant at common law," and that "the habendum totally contradicts, and is repugnant to, the estate granted in the premises," and hence "that the premise* govern, and the habendum is void." In 5 Amer. & Eng. Enc. Law, pp. 456, 457, it is said : " The term ' premises ' is given t» all that part of the deed which precedes the habendum clause. The habendum and tenendum clause is that which follows the words 'to have and to hold.' Originally, — that is, under the feudal system, — this clause defined the quantity of interest or estate which the grantee is to have in the property granted, and the tenure upon or under which it was to be held. Since the practical abolition of the various feudal tenures, the only object of the clause is to state the character of the grantee's estate. But, although the words of limitation usu- ally appear in the habendum as an independent clause of the deed, it is not necessary that they should, if they appear in some other part, as in the premises. So unimportant is the haben- dum that, if it is hopelessly repugnant to the limitations appear- ing in the premises, it will be ineffectual to control the terms of the premises. But if, by fair construction, the premises and habendum may be reconciled so that both may stand, effect will be given to both." It is claimed by the appellant that the word "descend," in the deed, is clearly a word of limitation, and not of purchase, and, taken either in its common or technical sense, implies an estate of inheritance to be taken by William H. Hub- bard as heir, and that, " if the first takers take only a life estate, then there was nothing to descend to William H. Hubbard as " heir; " leaving the implication that a fee was given Levi and Margaret Hubbard, and that no remainder was intended to vest in William H. Hubbard; or, briefly stated, it is insisted that, " the word ' descend ' having been used, no remain- der was created." An investigation of the authorities WHEN HABENDUM CLAUSE CONTROLS THE PREMISES. 709 ■does not enable us to agree with the appellant in his contention. It has been held that where, in a conveyance, the word " descent" was used, it meant the same as " go to." 2 Shavs. & B. Lead. Cas. Real Prop., p. 273; Halstead v. Hall, 60 Ind. 209; Tate v. Townseud, 61 Miss. 316; Jones v. Crawley, ^8 Ga. 175; Moore v. Weaver, 16 Gray, 305; Borgner v. Brown, 133 Ind. 398 ; 33 N. E. 92. The premises do not always control the construction. Words importing a greater estate than one for life in the first taker may, by force of the contest, be so limited as to give the first taker a life estate only, with a remainder over. Eeeder v. Spearman, 6 Rich. Eq. S9; Gillam v. Caldwell, 11 Rich. Eq. 75. The estate may be limited in the habendum, although not mentioned in the premises of a deed, and without the use of the word *' remainder." Wager v. Wager, 1 Serg. «6; R. 374; Wommack V. Whitmore, 58 Mo. 448. And the latter part of a deed has been allowed to control, and render what seemed to be a fee a life estate in the first taker. Prior v. Quackenbush, 29 Ind. 475. The argument that, if a remainder was created, it was a contingent one, does not find support in the authorities. David- son V. Koehler, 76 Ind., on page 409. All parts of a deed should be given due force and effect. " The premises of a deed are often expressed in general terms, admitting of various explanations in a subsequent part of the deed. Such explana- tions are usually found in the habendum." Carson v. McCaslin, €0 Ind. 334; Edwards v. Beall. 75 Ind. 401. Words deliber- ately put in a deed, and inserted there for a purpose, are not to be lightly considered, or arbitrarily thrust aside. Mining Co. ^. Beckleheimer, 102 Ind. 76; IN. E. 202. Nor do we think the case of Taney v. Fahnley, 126 Ind. 88; 25 N. E. 882, lends appellant any support, in his theory of a fee in Levi and Mar- garet Hubbard. In that case there are no words whatever indicating a life estate, and the descent referred to is to a class, as heirs, and providing that the grantor shall be included in the class, as such, while in the case under consideration the clause in the deed granting the premises to Levi Hubbard and Margaret Hubbard, " to have and to hold the same dur- ing their natural lives and each of their natural lives," defines an estate for life to Levi and Margaret Hubbard; and the expression, " then to descend to William H. Hubbard, and the heirs of his body," clearly refer to the time when said William shall come into the possession of the estate, and the remainder vested in him, and become subject to levy and sale at the date of the execution of the deed by William H. and Eliza J. Rush. The deed creates a remainder interest in William H. 710 THE REQUISITES AND COMPONENT PARTS OF A DEED. Hubbard by purchase, and the use of the word " descend " will not be allowed to defeat or destroy the clear and well-expressed meaning of the deed. The third cause assigned in appellant's motion for anew trial, that " the decision is contrary to law," involves the same ques- tions already considered, regarding the construction of the deed, and we will not repeat what we have heretofore said concerning it. The fourth specification in appellant's motion is that the court erred in excluding the following evidence offered by the plaintiff: (1) The record of the quitclaim deed from Levi Hubbard to the plaintiff, conveying the real estate in question, and sought to be sold in execution; (2) the record of a tax deed by the auditor of Jay County, conveying said premises to the plaintiff ; (3) the receipts for taxes paid thereon by the plaintiff subsequent to the sale for taxes; and (4) the value of the improvements made upon said tract by plaintiff since the execution of the tax deed by the auditor. It is the duty of the life tenant to pay, and keep down, the general taxes assessed against the real estate of which he is in possession, and enjoys the rents and profits; and if, through failure to perform his duty, the estate in remainder is sold, destroyed, or wasted, he is required to make the loss good. If, through the failure of the tenant to pay the taxes, the estate is sold and conveyed to another, beyond the power of the re- mainder-man to recover it, it is, as to him, destroyed and wasted, and the inheritance is gone, and the tenant should pay for the loss. Clark v. Middlesworth, 82 Ind. 240. In IShars. & B. Lead. Cas. Real Prop., p. 209, it is said: "The tenant for life must also pay the ordinary taxes upon the land held by him ; and if he neglect or refuse to- pay the taxes, and suffer the land to be sold, and buy it in, he will not be allowed to set up the tax against the remainder- man or reversioner, for that would be taking advantage of his own wrong. Patrick v. Sherwood, 4 Blatchf. 112. In Ohio, a life tenant suffering a sale of his land for taxes forfeits his life estate, and will not be allowed to redeem the land;" citing Mc- Millan V. Bobbins, 5 Ohio, 28. But these questions were not involved in the issues. The whole question, in this case, turns upon the construction of the deed from William H. Rush and wife to Margaret and Levi Hubbard, with remainder to William H. Hubbard, heretofore given ; and as the latter took, by virtue of that conveyance, a vested interest in the land, it became and is subject to the lien of the appellee Lupton's judgment, and was was properly levied upon by the sheriff. There is no avail- able error in the record, and the judgment of the court below is affirmed. DEED OF CONVEYANCE RESERVED FROM OPERATION. 711 Reservation from- Operation of a Deed of Conveyance. Gould V. Howe, 131 HI. 490; 23 N. E. 602. Appeal from circuit court, Marshall County. Ejectment by Edward L. Gould against Charles Howe for an alley in the city of Wenona. In 1855 the Illinois Central Rail- road Company platted the town (now city) of Wenona, and the land in suit was described in said plat as an alley. The plat was acknowledged by the president of the railroad company, May 16, 1855, before a notary public. Afterwards the company conveyed to Thomas A. Hill land in which this alley was in- cluded. The deed reserved " streets and alleys according to recorded plat of the town of Wenona." The defendant's title was derived from Hill. The plaintiff claimed title through a quitclaim deed from the railroad company made after the deed to Hill. The alley has since been vacated. Defendant obtained judgment. Plaintiff appeals. ScHOLFiELD, J, Two questions only are presented for our decision by the arguments made upon this record : (1) Does the plat of the Illinois Central Railroad Company vest the fee of the streets and alleys marked thereon in the corporation of Wenona? (2) Do the words, "reserving streets and alleys according to recorded plat of the town of Wenona," in the deed of the Illi- nois Central Railroad Company to Hill, prevent the transfer of the fee in such streets and alleys, subject to the easement of the public therein by that deed? 1. Bearing in mind that acknowledgments of instruments affecting title to, or interests in, realty, were unknown to the common law, and are purely of statutory origin, it will be ob- vious that whether, in a given case, an acknowledgment is effective depends entirely upon whether it is taken and certified in the manner and by the person within the contemplation of the statute. The statute in force when this plat was made was the Revision of 1845. By that revision one mode is provided for taking acknowledgments of town plats, and another and different mode is provided for taking acknowledg- ments of deeds and other instruments for the conveyance of real estate. The former are to be acknowledged before " a justice of the supreme court, justice of a circuit court, or a justice of the peace," while the latter are to be acknowledged before ' ' any judge, justice or clerk of any court of record in this State having a seal, any mayor of a city, notary public, or com- missioner authorized to take the acknowledgment of deeds, bav- in" a seal, or a justice of the peace." See section 16, c. 24, and 712 THE EEQUISITE8 AND COMPONENT PARTS OF A DEED. section 20, c. 25, Kev. St. 1845 ; 1 Purple St. 1856, pp. 156, 176; Gross St. 1868, pp. 103, 118, §§ 16, 20. It may be that there is nothing in the character of the instruments which would preclude a uniform system of acknowledgment for all ; and we may concede that it would therefore have been competent for the general assembly to have so provided, either by assigning that duty to courts, to persons exercising quasi-judicial powers, or to persons arbitrarily selected and named for that purpose, without reference to any official position ; but it would have beeu equally competent to have dispensed with acknowledgments together, and, in the matter of town plats, to have provided that the simple causing of the plat to be made and recorded should ipso facto vest the fee of the streets and alleys in the munici- pality, without reference to any acknowledgment whatever. But these are all legislative questions, with which we have nothing to do ; it being our province solely to inquire, what has the general assembly enacted in this respect? not, why has it enacted it? In the enactments referred to supra, the general assembly did not assume to vest the power to take acknowledgments in per- sons exercising the same classes or grades of powers; for there is no more dissimilarity between the powers exercised by any officers under our government than between those exercised by the judges, mayors, notaries, clerks, commissioners, and others who are empowered to take acknowledgments of deeds. The enumerated officers are empowered to take acknowledgments of deeds, not because the act of taking acknowledgments is ger- mane to any particular power inhering in the offices they hold, but simply and only because the general assembly has, in the exercise of plenary legislative authority in that respect, arbi- trarily designated them for that purpose, just as it has since designated masters in chancery, and might have designated aldermen and constables. The language of the statute in rela- tion to the acknowledgment of plats, to which we have referred, is first found in an act approved January 4, 1825 (Compilation 1830, p. 184), and it remained unchanged until the revision of 1874. The language of the statute in relation to the acknowl- edgment of deeds and other conveyances of real estate has, however, often been changed so that different acknowledgments may have been properly taken from time to time, before persons who had no authority to take acknowledgments at prior times. Thus, by the act in relation to conveyances, approved January 31, 1827 (Rev. Laws 1827, p. 98, § 9), deeds and other conveyances of real estate were required to be acknowledged before ' ' one of the judges of the supreme or circuit court of this State, or before one of the clerks of the circuit court. DEED OP CONVEYANCE EE8EUVED FROM OPBEATION. 713 * * * or before one of the justices of the peace of the county;" and it was not until two years after that statute was in force that the legislature enacted, by an amendment approved January 22, 1829 (Laws 1829, p. 24, § 1), that notaries public, mayors, and certain other designated oflacers should, in addition to those enumerated therein, be empowered to take acknowl- edgments. No one will pretend that the acknowledgment, of a deed before a notary public or a mayor, taken before the 22d of January, 1829, could have had any validity ; and this, for the plainly obvious reason that no power to take acknowledgments was conferred upon a class of officers to which they belonged, nor upon them by specific designation ; and precisely the same is to be said of the acknowledgment of this plat before a notary public. The power confessed by the statute in relation to con- veyances does not extend beyond the class of instruments which are the subject of that statute ; and the statute in relation to town plats neither expressly nor by necessary implication in- cludes notaries public. By the Kevision of 1874, the general assembly has provided that town plats are to be " acknowledged in the same manner that deeds of land are required to be acknowl- edged;" but this is palpably a radical amendment and change of the prior law, and it has no retroactive effect. It necessarily follows that, in our opinion, the acknowledgment of the plat before the notary was a nullity, and the plat, therefore, did not operate to vest the fee of the streets and alleys in the munici- pality. See, also, Gosselin v. Chicago, 103 111. 623; Thomas v. Eckard, 88 111. 593. 2. While the plat was not a conveyance of the fee, it was evidence tending to prove a common-law dedication, which we ■ have held vests an easement in the streets and alleys in the municipality. Eailroad Co. w. Hartley, 67 111. 439; Maywood Co. V. Village of Maywood, 118 III. 61 ; 6 N. E. Rep. 866. It is often difficult to distinguish between an exception and a reserva- tion in a deed, and the words " reserving " or " excepting " are not conclusive in determining which is intended. The character and effect of the provision itself, in which such words occur, must determine what is intended. It is sufficient, for the present, to say that an exception in a deed withholds from its operation some part or parcel of the thing which, but for the exception, would pass, by the general description, to the grantee. A reservation in a deed, on the other hand, is the creation of some new right issuing out of the thing granted, and which did not exist before as an independent right in behalf of the grantor, and not of a stranger. Co, Litt. 47a,- 1 Shep. Touch. 77, 80; 2 Washb. Real Prop. (2d. Ed.), pp. 646, 693, § 67; 714 THE REQUISITES AND COMPONENT PARTS OF A 1>EED. Tied. Eeal Prop., § 843. If here there had been no public easement in the streets and alleys, and the company had desired to retain for its servants and employees a private way across the land conveyed, it would have been a reservation; it would have been the creation of a new right, issuing out of the thing granted, in behalf of the grantor. But the streets and alleys were already in existence. The municipality had an ease- ment in them for the public. The land occupied by them was included by the terms of the deed in the general description of the property conveyed, and hence, but for the provision with- holding them from its operation, they would have been included in the grant. Beach w. Miller, 51 111. 207. The language of the deed could only be held to withhold the fee of the streets and alleys from its operation upon the hypothesis that, " according to recorded plat of town of Wenona," the fee of the streets and alleys is vested in the municipality, for that is the measure of what ia withheld from the operation of the deed; and therefore, since " according to recorded plat of town of Wenona " an ease- ment only in the soil of the streets and alleys is vested in the muni- cipality for the use of the public, that only is withheld from the operation of the deed. Nothing, therefore, was retained in the railroad company which could subsequently pass by its quitclaim ; and when the alley was vacated the easement was terminated, and there was nothing to revert to the railroad company. The judgment is affirmed. Covenaut of Seisin Against Incumbrances Wlien Broken. Copeland c. McAdory, 100 Ala. 553 ; 13 So. 515. Stone, C. J. The action was commenced against the appellant and his wife to recover damages for alleged breaches of the covenants in a deed of bargain and sale executed by them conveying to the appellees a certain lot or parcel of land in the city of Birmingham. There was judgment for the wife on her plea of coverture. The trial was had on an amended complaint having three counts. The first of these alleges a breach of the covenant against incumbrances. The second complains of an alleged breach of the covenant that the grantors had good right to convey. The third alleges a breach of the general covenant to warrant and defend. The defect or insufficiency of the title of the grantors, alleged in each count, is that a part of the premises conveyed, particularly- described, formed a part of a public street or avenue of the city of Birmingham, having been, prior to the execution of the con- BREACH OP THE COVENANT AGAINST INCUMBRANCES. 715 veyance, dedicated to the public for such use by the former owner, the Elyton Land Company, when mapping and laying out the city ; and that the mayor and aldermen of the city had entered, taking possession thereof, and dispossessing the appel- lees. Demurrers to each count were interposed, assigning causes which are not very clearly expressed. As we interpret them, the defect or insufficiency in each count charged to exist is that the right and title of the mayor and aldermen is not described with sufficient certainty or particularity, and that it is not shown the appellees were ousted or dispossessed by legal process. The demurrers were overruled, and the order overruling them is the matter of the first assignment of error. In considering the sufficiency of the complaint, we are confined to the causes of demurrer assigned. Though either count may be in any respect insufficient, if not subject to the objections stated, the demurrer was properly overruled. Code, § 2690. The second count is founded on an alleged breach of the covenant of good right to convey the equivalent of a cove- nant of seisin. In declaring for a breach of the covenant, all that is necessary ia to negative the words of the covenant generally. No description of or x'eference to the outstanding or permanent title is necessary ; nor is it necessary to aver an evic- tion or ouster. The covenant is broken, if at all, as soon as it is made, and not by the occurrence of any future event. The grantor is presumed to know the estate of which he was seised; the fact is peculiarly within his knowledge, and he must plead and prove it. Rawle Gov. (3d Ed.) 53; Rickert v. Snyder, 9 Wend. 421; Anderson v. Knox, 20 Ala. 156. Whether the existence of a highway over a part of the premises conveyed is a breach of this covenant is not a question raised by the demur- rer, and, of consequence, is not now before us. There is a marked distinction in pleading a breach of the covenant of seisin, or of good right to convey and of other covenants. It is not suf- ficient, in declaring for a breach of the other covenants, to nega- tive merely the words of the covenant. The paramount title or incumbrance, the existence of which is supposed to con- stitute a breach, must be stated. But it is not necessary nor advisable to enter into any particular description of such incum- brance or title. The statement of it substantially is all that is requisite. Eawle Gov. 125 et seq. In the notes to 2 Greenl. Ev., §§ 242-244, the form of a count for a breach of the cove- nant against incumbrances, of quiet enjoyment, and of general warranty will be found. In each count there is no more than the averment that there was at the time of making the deed an outstanding lawful right and title, and in whom it resided. In 716 THE REQUISITES AND COIUPONENT PARTS OP A DEED. each of the counts of the complaint in which it was necessary to state the existence of au incumbrance or of a paramount title, that which is relied on as constituting the breach of the cove- nant is clearly stated; its nature, character, and origin; and in this respect the demurrer was not well taken. The covenant of freedom from incumbrances, like the cove- nants of seisin and of good and lawful right to convey, is a covenant inpraesenti. It is broken as soon as made if there is an outstand- ing older and better title, or an incumbrance diminishing the value or enjoyment of the land. Anderson v. Knox, 20 Ala. 156; Andrews v. McCoy, 8 Ala. 920; Clark v. Swift, 3 Mete. (Mass.) 390. An eviction or dispossession of the grantee is not a con- stituent element of the breach. It is the defect of title or the burden of an incumbrance existing when the conveyance is made which works the breach. It is said by Greenleaf : " The cove- nant of freedom from incumbrance is proved to have been broken by any evidence showing that a third person had a right to or an interest in the land granted, to the diminution of the value of the land, though consistent with the passing of the fee by the deed of conveyance. Therefore a public highway over the land, a claim of dower, a private right of way, a lien by judgment or by mortgage made by the grantor to the grantee, or any mortgage unless it is one which the covenantee is bound to pay, or any other outstanding older and better title, is a breach of this covenant." 2 Greenl. Ev., § 247. The authori- ties generally recognize an outstanding easement of any kind as falling within the covenant, operating its breach. Eawle Cov. 113 etseq.; Tied. Eeal Prop., § 850; Huyck v. Andrews, 113 N. Y. 81 ; 20 N. E. Kep, 581. The definition of an incumbrance expressed by Parsons, C. J., in the early case of Prescott v. Trueman, 4 Mass. 630, is that it is " every right to or inter- est in the land granted to the diminution of the value of the land, but consistent with the passing of the fee by the convey- ance," has frequently been cited and approved. Au easement conferring upon its owner an interest in the land, the right to some profit, benefit, dominion, or lawful use out of or over the land, though it may be consistent with the passing of the fee by the conveyance, is a burden upon the estate granted, diminish- ing the full measure of its enjoyment. There is some conflict in the authorities whether the existence of a public highway over the land is an incumbrance, and a breach of this covenant. In the case of Kellogg v. IngersoU, 2 Mass. 101, an action for a breach of the covenant, the breach assigned was the existence *' of a public town road or way, duly laid out by the town of A. for the use of all its inhabitants," and it was held the breach BEEACH OF THE COVENANT AGAINST INCUMBRANCES. 717 was well assigned ; that the existence of the road was an incum- brance. Parsons, C. J., said : " It is a legal obstruction to the purchaser to exercise that dominion over the land to which the owner is entitled. An incumbrance of this nature may be a great damage to the purchaser, or the damage may be very in- considerable, or merely nominal. The amount of the damage is a proper subject for the consideration of the jury who may assess them, but it cannot affect the question whether a public town road is, in legal contemplation, an incumbrance of the land over which it is laid." Though the doctrine of this case has been denied in New York, Pennsylvania, and Wisconsin, it has been adopted in all the New England States, and in Indiana, Illinois, Iowa, and Missouri. Tied. Eeal Prop., § 853, and notes. In Kellogg v. Malin, 50 Mo. 496, it is said : " All the authorities concur in holding that an easement constitutes an incumbrance. If a person acquires the fee to land free and unincumbered, he obtains the exclusive and absolute dominion over it, and may use, enjoy, and appropriate it to any purpose he may see fit ; but if it is subject to an easement or incumbrance it is not free, nor can he enjoy it to the fullest extent. If a pub- lic highway or a railroad track run over it, he cannot have its undisturbed enjoyment, for it is used by others in defiance of his will." The vendor of lands frames the covenants of the convey- ance into which he enters. He may extend or lithit them at pleasure, or he may decline to introduce into the conveyance any covenants whatever, limiting the grant to such estate or interest only as he may have in the land, and leaving the purchaser to take it with all the defects of title, and subject to all the incum- brances which affect or bind the estate. But if he enters into covenants he must respond for all the damages resulting, if the covenants are in legal contemplation and in fact untrue. The existence of a public highway is a burden — an incumbrance — diminishing the enjoyment of the land, subjecting it to the dom- inion and use of the public. If it were a private right of way, all authorities declare that it would be an incumbrance and a breach of the covenant. That it is public does not change the fact that there is an outstanding right to the use and to dominion over the land, which may continue forever, interrupting its quiet enjoyment. The covenant of quiet enjoyment and of warranty are practically identical in operation, and whatever constitutes the breach of the one covenant is a breach of the other. Either extends to all lawful outstanding adverse claims upon the prem- ises conveyed. An easement materially affecting the value, interfering with the use and possession, of a part of the premises, is a breach of the covenant. Scriver v. Smith, 100 N. Y. 471; 718 THE EEQUISITES AND COMPONENT PAKTS OF A DEED. 3 N. E. Rep. 675. A right of way, public or private, incumber- ing a part of the premises, is a breach of the covenant. Euss v. Steele, 40 Vt, 310 ; Lamb v. Danforth, 59 Me. 322 ; Butt v. Eiffe, 78 Ky. 352. An eviction, actual or constructive, of the whole or a part of the premises, is an essential constituent of the breach. But it is not intended that there should be an evic- tion by legal process. If there is an hostile assertion of an irresistible, paramount title, the grantee may yield to it, not awaiting suit and judgment. If he yields, it is at his peril, and he takes upon himself, in an action for a breach of the cove- nant, the burden of proving the title really paramount. Tied. Eeal Prop., § 855. Assuming the truth of the averments in the complaint, as must be done on demurrer, the paramount right and title to the part of the premises conveyed which formed a part of the street or avenue — the paramount right to use and dominion over them — resides in the mayor and alder- men, and they had the right to enter and take possession. It was not only the right, but the duty, of the appellees to sur- render the possession. They were under no duty to the appel- lant to maintain a wrongful possession, subjecting themselves to be treated as trespassers. McGary v. Hastings, 39 Cal. 360. The result of the views we have expressed is that the demurrer to the several counts of the complaint for the causes assigned were properly overruled. The demurrer to the two special pleas filed by the appellant do not appear in the record. When such demurrers are sus- tained, the presumption on error is that causes of demurrer were specified, and covered whatever of objection or insufficiency may be found in the pleas. The first plea purports to be a plea of recoupment, and the matter of recoupment is expenses incurred by the appellant in the employment of counsel to procure the correction of the misdescription in a deed executed by the appellees conveying to the appellant a lot in exchange or as the consideration for the lot conveyed by him to the appellees. It would scarcely be insisted that in a separate, independent action such a claim or demand is recoverable ; and it is now suffi- cient to say that a claim or demand not revocable in a separate independent action cannot be made the matter of a plea of recoupment. 3 Sedg. Dam., § 1061. The second plea avers that at the time of the execution of the conveyance the appellees had full knowledge of the claim of the mayor and alderman of the city of Birmingham, and are therefore estopped from a recov- ery ; but knowledge or notice, however full, of an incumbrance, or of a paramount title, does not impair the right of recovery upon covenants of warranty. The covenants are taken for pro- BREACH OP THE COVENANT OF WAEBANTY. 719 tection and indemnity against linown and unknown incumbrances or defects of title. Tied. Eeal Prop., § 853; Rawle Gov. 128 et seq.; Dunn v. White, 1 Ala. 645. The measure of damages for a total breach of the covenants of seisin or of good right to convey or of quiet enjoyment or general warranty is the pur- chase money, or value of the consideration. If the failure of the title is partial, the measure of damages is the value of the parcel lost, measured by the consideration, or the value at the time of the eviction. Kingsbury v. Milner, 69 Ala. 596 ; Bibb V. Freeman, 69 Ala. 612; 2 Suth. Dam. 288; Mecklem v. Blake, 99 Amer. Dec. 78, note; Brooks v. Black (Miss.), 8 South. Eep. 332; 24 Amer., St. Eep. 267, note. When, as in this case, there is not a failure of title, the fee remaining in the grantee, but a part of the land is subject to a perpetual ease- ment, which may not be removed by the payment of money, the measure of damage is the depreciation in value of the land by reason of the incumbrance. 3 Sedg. Dam., § 972; Clark v. Ziegler, 78 Ala. 362, 85 Ala. 154; 4 South. Eep. 669. Con- sequential damages are not recoverable. Nor is the value of improvements the grantee may have made after the purchase an element of damage. If compensation is made for them, as has been properly said, it must be made by the evictor. Mecklem V. Blake, 99 Amer. Dec. 73, note. There was error in the refusal of the first, second, third, and fifth charges requested by the appellant. There was no error in the refusal of the fourth and sixth charges requested. The appellees were under no duty to give notice to the appellant before surrendering possession to the mayor and aldermen, if their right and title was paramount. Having surrendered without suit, as has already been said, in this action, the burden of proving the superiority of the title to which they yielded rests upon the appellees. They are not bound to prove it conclusively, as is asserted in the sixth instruc- tion. In all civil cases the measure of proof is that which pro- duces in the minds of the jury a reasonable conviction. The other matters assigned as error will not arise again, and a con- sideration of them is unnecessary. Reversed and remanded. Breach of the Covenant of Warranty. Eversole v. Early, 80 Iowa, 601; ii N. W. 897. Given, J. 1. Plaintiff asks to recover upon the ground that the fee-simple title of Barke and his grantees was paramount to the title which he bad received from Early, to protect himself and his grantee against which he was compelled to purchase said 720 THE EEQDISITES AND COMPONENT PARTS OF A DEED. paramount title, to his damage, which he asks to recover under defendant's covenants of warranty to him. If the third count states as facts that which shows that the Barke title was not paramount to the tax-title of Early, then it states facts consti- tuting a defense. According to said count, Barke's title was not complete. It depended upon his paying the $968.50 within a certain time, a failure to do which would defeat his title, and render the tax-title paramount. The demurrer should have been overruled. It is contended that this ruling is with- out prejudice, as, under the issues joined by the other counts, plaintiff had to prove that the title bought in by him was para- mount. This is true, but the defendants pleaded facts that would show upon what the question of superiority of title rested. Without this count, there was nothing in the pleading to even suggest the real point in controversy. 2. The point in controversy was as to which of these titles was paramount at the commencement of this action. If the Barke title was paramount, we have no doubt as to plaintiff's right to protect himself by purchasing it. The old rule, that there was no eviction until actual ouster, does not prevail. It is sufficient that the holder of the paramount title is able to assert it successfully. Thomas v. Stickle, 32 Iowa, 71; Funk v. Cresswell, 5 Iowa, 62. There is no conflict in the evidence, and the only fact appear- ingtherefrom, in addition to that shown by the pleadings, is that, the case of Barke v. Early et al. being appealed, a stipulation was entered into by which the time for the payment of the $968.50, and for filing a petition for improvements, was extended to a later date than that named in the decree, being a date later than that on which Barke conveyed to Mason and Thompson, and they to the plaintiff. The decree in Barke v. Early et al. explicitly provides that, in case plaintiff fails to pay the $968.50, " the title to said land shall be quieted in defendants." During the time allowed for the payment, it could not be said that either title was paramount as that dependent upon the payment or failure to pay. It was during this time that Barke conveyed to Mason and Thompson, and they to the plaintiff. Hence it is not true that the plaintiff purchased a paramount title. Appellee contends that, as the patent title could have been perfected and enforced at the time plaintiff purchased it, it was the paramount title. In Thomas v. Stickle, supra, the court say : « « Could the grantor of Pitcher have successfully maintained an action against the plaintiff for the recovery of the land in dispute at the time Pitcher purchased in their titles? " Adapt- ing the inquiry to this case, we ask, was Barke, or Mason and EXCEPTIONS TO COVENANTS OP TITLE. 721 Thomas, entitled to a writ for possession under the decree in Barke v. Early et al. at the time plaintiff purchased in their title? Clearly not, without first paying the $968.50. Without this payment, they were not in position to assert the patent title successfully. Our conclusion is that the court erred in sustain- ing the demurrer, and in rendering judgment for the plaintiff, and that judgment should be for the defendants for costs. This view of the case renders it unnecessary to notice the other ques- tions presented. Reversed. Exceptions to Covenants of Title. King V. Kilbride, 68 Conn. 109 ; 19 A. 519. Andrews, C. J. These are two actions, between the same parties, brought on separate mortgages, and each claiming a foreclosure and the possession of the same land. It appears that on the 1st day of June, 1887, the plaintiff owned two tracts of land, — one containing ten acres, and the other, his homestead, containing one acre. On that day he mortgaged both pieces to Thomas A. Nelson, to secure his note for $1,100, payable to said Nelson or order, on demand, with interest. On the 29th day of the same month he sold and conveyed the 10-acre piece to William B. Kilbride by a deed in which the covenant against incumbrances and the covenant of warranty were as follows: " And that the same is free from all incumbrances whatsoever, except a certain mortgage to Thomas A. Nelson, dated June 1st, 1887, for $1,100. And furthermore, I, the said grantor, do by these presents bind myself and my heirs forever to warrant and defend the above granted and bargained premises to him, the said grantee, his heirs and assigns, against all claims and demands whatsoever." On the same day Kilbride mortgaged the same land to the plaintiff, to secure the sum of $1,500 by a deed in which the covenants were identical with the covenants in the plaintiff's deed to him. Kilbride orally agreed to assume and pay the note to Mr. Nelson as a part of the payment for the land. He went into immediate possession of the land so con- veyed to him, and on the 15th day of August following conveyed a portion of it to the Fountain Water Company by a deed con- taining all the covenants, without any exception. All of these -deeds were put upon record at once. It is found that the water company had no notice, actual or constructive, of the oral agreement by Kilbride to pay the Nelson mortgage, except so far as the recording of the deeds is such notice ; and it is also found that the water company took its 46 722 THE EEQUISITES AND COMPONENT PAETS OP A DEED. deed in good faith, and paid full value for its land. The plain- tiff has remained ever since the owner and in possession of the homestead. Kilbride proved to be insolvent, and left the prem- ises; and the plaintiff, on the 27th day of October of the same year, in order to protect his second mortgage interest in the ten- acre tract, purchased of Mr. Nelson the note and mortgage which he had previously given to him, and Mr. Nelson thereupon trans- ferred and assigned to the plaintiflf, by a proper release deed, all his right, title, and interest in the note and mortgage; and the same are now the property of the plaintiff. The first action is brought by the plaintiff as assignee and holder of his own note to Mr. Nelson, and in the complaint he claims a foreclosure of the ten-acre piece, with possession of the same, unless the water company or Kilbride shall pay the whole amount due on that note. The defense in this action sets up, among other things, the' covenant of warranty contained in the plaintiff's deed to Kil- bride. The reply to the defense is a denial. The judgment apportions the debt between the two pieces of land mortgaged by the plaintiff to Mr. Nelson according to their value, and decrees a foreclosure of the ten-acre piece unless the defendants, or one of them, shall pay the sum of $556.20, and grants execution in ejectment if the money is not paid within the time limited. From this judgment the plaintiff and the Fountain Water Com- pany both appeal. The plaintiff's reasons of appeal are that the court erred in not requiring the defendant to pay the whole of the Nelson note. The second and third reasons of appeal of the "water company are, in substance, that the court erred in holding that the plaintiff was entitled to maintain the suit notwithstand- ing his covenant of warranty. It appears from the finding that the plaintiff did make the covenant of warranty as alleged by the defendants, and as appears by his deed, portions of which are recited above. The covenant of warranty is a contract by which the grantor of land undertakes to protect the land granted from all lawful claims and demands existing at the time of the grant, and the contract is made not only with his immediate grantee, but with whomsoever may become the owner of the land by a title derived through the grantee. Booth v. Starr, 1 Conn. 144; Mitchell v. Warner, 5 Conn. 498; Kawle Cov. (4th Ed.) 334; 3 Washb. Real Prop. (4th Ed. ) 466 ; 2 Sugd. Vend. (Perkins' Ed. ) 240. It is not nec- essarily an undertaking that there is no incumbrance on the land at the time, but it is an undertaking that the purchaser and his assigns shall at all times enjoy the land free from all such incum- brances. Williams v. Wetherbee, 1 Aiken, 233 ; EawleCov. (4th Ed.) 215; Whitney v. Dinsmore, 6 Cush, 124; Eussw. Steele, 40 EXCEPTIONS TO COVENANTS OF TITLE. 723 Yt. 310. Of this covenant, any act tantamount to an eviction of the grantor would be a breach and subject the grantor to damages, as if the grantee should upon demand yield the posses- sion to one having a better title (Sterling v. Peet, 14 Conn. 245) or surrender to a mortgagee by a prior deed ( Hamilton v. Cutts, 4 Mass. 349 ; Sprague v. Baker, 17 Mass. 586). A judgment in ejectment Vi^ould clearly be such an act. The judgment of foreclosure and ejectment requires of the defendants a payment of money to their own grantor, and, upon their failure to do so, authorizes him to evict them; that is, to do the very act which he has covenanted with them shall not be done by any one. Such a judgment must be erroneous. And this judgment is erroneous unless there is in the case something by which the plaintiff is relieved from the obligation of his warranty. Is there any such thing? So far as the water company is concerned, the oral agreement by Kilbride to pay the Nelson note may be laid out of the case. It is found that the company had no notice of that agreement, except so far as the record of the deed is actual or constructive notice. The record disclosed an express covenant by the plaintiff to protect the defendants in their possession of the land against all claims and demands whatsoever. When there is an express contract in writing respecting any matter, there can never be an implied one in addition to it. Brown v. Pales, 139 Mass. 21. Still less can there be any implication contrary to the writing. Burnes v. Scott, 117 U. S. 582; 6 Sup. Ct, Eep. 865; Allen v. Eundle, 50 Conn. 9. It is claimed by the plaintiff that the Nelson mortgage was excepted out of the covenant of warranty in his deed to Kilbride ; that the exception of it from the covenant against incumbrances ought to be construed as an exception of it from the covenant of warranty. This is really an argument the other way. That an exception was made from one covenant in a deed is an argument that no exception was intended from any other. It shows that the attention of the grantor was called to the matter of making exceptions, and that, presumably, ho made all the exceptions he desired to. The principle applicable is found in the maxim that the express mention of one person or thing is the exclusion of others. Besides, these covenants are distinct, and have refer- ence to different kinds of liability. A man may not choose to guaranty his title generally, and yet may readily undertake that his grantee shall not be disturbed. 2 Sugd. Vend. (Perkins' Ed.) 281 ; Howell v. Eichards, 11 East, 633, 643; Estabrook v. Smith, 6 Gray, 572. It is further urged that the covenant of warranty in Kilbride's mortgage deed to the plaintiff operates in some way to prevent 724 THE EEQUISITES AND COMPONENT PARTS OP A DEED. the water company from taking anything under the plaintiffs covenant of warranty in his deed to Kilbride. How it has this effect is not shown. The water company is not in privity with either of the parties as to that covenant. That is a matter between other persons, by which it can neither be harmed nor helped. Certainly, the plaintiff cannot be discharged from his covenant to the water company because some one else has warranted the same land to him. The equitable doctrine of notice, so strongly urged, and apparently so much relied on, by the plaintiff, seems to us to have no application in the case. It is not a question here of notice, but whether or not the plaintiff shall keep his covenant. It cannot be denied that the water company had notice that the Nelson mortgage covered the lO-acre piece of land. It had notice of everything which appeared on the record. By the same record from which the company derived such notice, it learned that the plaintiff had covenanted to warrant and defend that very piece of land from all claims and demands, not except- ing the Nelson mortgage. If there was any defect or uncer- tainty in the notice which the record gave, it was because the plaintiff was himself wanting in care, in not making his deeds more specific. He is invoking the doctrine of notice. He ought not to expect others to obtain more knowledge from his deeds than he put into them. He certainly cannot take any advantage from his own omissions. He is the one to be bound by the notice given, rather than the water company by the notice re- ceived, if there is any difference; especially as it is more than likely that the water company bought its land relying on his warranty, and upon his ability, a? well as on his willingness, to fulfill it. There is error in the judgment, and it is reversed so far as it is against the Fountain Water Company. In the second suit, a foreclosure and the possession of the same 10-acre piece is claimed, unless the defendants, or one of them, shall pay the installments due on Kilbride's note to the plaintiff, and secured by his mortgage deed of the 29th day of June, 1887. The court ascertained the amount due on the note the day judg- ment was rendered to be $46.44, and decreed a foreclosure unless the same was paid, together with a judgment in eject- ment, to be enforced on failure of payment at the expiration of the time limited. The water company appealed from the judg- ment on the ground that the indebtedness sought to be secured by the mortgage was not sufficiently described in it. We think there is no error. The judgment in this case is fully sustained by the reasoning in the very recent case of Winchell v. Coney, 54 Conn. 24; 5 Atl. Kep. 354, which is applicable to this case ; WHO CAN MAINTAIN ACTION FOB BREACH OF COVENANTS. 725 reasoning which we have no need to repeat, and no dispositioa to change. In this opinion the other judges concurred. TFho Can Maintain Action for Breach of Covenants of Title. Allen V. Kennedy, 91 Mo. 324; 2 S. W. 142. Black, J. On the fifth May, 1875, the defendant con- veyed the 40 acres of land in question to Patterson by a deed containing the statutory words " grant, bargain, and sell," and also a covenant of general warranty. On the twelfth Septem- ber, 1878, Patterson, by a like deed, conveyed the same land to plaintiff. Plaintiff brings this suit for damages on the cove- nants in the deed to Patterson. 1. There is a question made as to whether the petition de- clares on the covenant of seizin only, or on that and the cove- nant of warranty. The petition is very carelessly prepared, but we think it shows a purpose to declare on both. As the case will be remanded, the plaintiff can amend so as to bring both covenants fully on the record proper, and we shall treat the case as if such an amendment were made. 2. The plaintiff put in evidence the two deeds before men- tioned, and showed that the land was a part of the swamp lands of Chariton County, and that Eiddle was the owner by deeds from and through the county. He testifies that after he bought the land he found defendant had no title, and, on further inquiry, found that Riddle had taken possession long before plaintiff purchased the same. The plaintiff concedes that the full measure of his damages is the amount he paid, with interest. For proof of damages, the plaintiff relies alone on the recital of $350 consideration paid by him in his deed from Patterson ; and the question is whether this made out a prima facie case. As to the parties to a deed, the consideration clause is prima facie ev- idence, but it has the force and efi'ect only of a receipt, and is open to explanation and contradiction, not for the purpose of defeating the deed as a conveyance, but for the purpose of showing the true consideration. Fontaine v. Boatmen's Sav. Inst., 57 Mo. 552; Wood v. Broadley, 76 Mo. 33. Gen- erally, however, the recital in the consideration clause is not evi- dence of the amount paid, or the value of the premises, as to third persons. Eose u. Taunton, 119 Mass. 100. We have held that the recital of the place of residence of the grantee in a deed is not evidence of the fact in his own favor. Fine v. St. Louis Pub. Schools, 30 Mo. 166. The question arose in a foreclosure suit in a case decided by the Supreme Court of Ohio, and reported 726 THE REQUISITES AND COMPONENT PARTS OF A DEED. in 1 N. E. Eep. 523. There H. sold the property, and by his contract agreed to make a deed upon payment of the purchase money. He then made the mortgage on the same premises. Thereafter the purchaser assigned his contract, and the succes- sive assignees made divers payments. H. then made a deed to the last assignee, reciting payment in full, and it was held this recital was not evidence of payment in full, as against the mort- gagee. A substantial issue in this case was, how much did Allen pay, and the burden of the proof was upon the plaintiff. The statement of the amount paid in the deed is no more than the declaration of Patterson. Kennedy is no party to that deed, claims nothing under it, and we must hold there was a failure of proof. Where the contest is between a prior unrecorded deed and a subsequent recorded deed, the question is whether the holder under the recorded deed purchased in good faith for value, and without notice. The deed there may well be regarded as giving the grantee a prima facie standing in court, but we ex- press no opinion here in that class of cases; the issue there is unlike the present one. 3. As to the covenant of seisin of an indefeasible estate in fee- simple, the claim is that this covenant, if broken at all, is always broken when made, and does not run with the land. Whatever may be the rule elsewhere, with us it is more than a covenant in the present tense. It is rather a covenant of indemnity, and it has often been held that it runs with the land» to the extent that if the covenantee takes any estate, how- ever defeasible, or if possession accompanies the deed, though no title pass, yet, in either event, this covenant runs with the land, and inures to the subsequent grantee upon whom the loss falls. Dickson v. Desire, 23 Mo. 151; Chambers v. Smith, Id. 174; Magwire v. Kiggin, 44 Mo. 512; Jones v. Whitsett, 79 Mo. 188. 4, Both covenants in the Kennedy deed were broken before the plaintiflf purchased; for Eiddle, the owner of the title, had taken possession under it, and Patterson was without title or possession. On this state of the case, the contention of the defendant is that covenants only run with the land until breach ; that they then become choses in action, which cannot be assigned. Many authorities do hold that choses in action cannot be assigned so as to enable the assignee to sue in his own name at law, but that is not the law of this State. Damages arising from the breach of the covenants in a deed may be assigned, and, whea assigned, the assignee, and he alone, can sue. Van Doren w. Eelfe, 20 Mo. 456. The only remaining question is whether the deed to plaintiff WHO CAN MAINTAIN ACTION FOR BKEACH OF COVENANTS. 727 ■will operate as an assignment of the prior covenants, so as to protect the assignee as to the damages he has sustained. As having some bearing upon this question, It may be stated that, by our statute, any person claiming title to real estate may, though there be an adverse possession, convey his interest as if he were in the actual possession. Section 673, Eev. St. 1879. Kimball v. Bryant, 25 Minn. 496, was an action on the cov- enant of seisin in a deed from defendant to Hardy, who con- veyed with full covenants to the plaintiff. The grantor in the first deed had no title, and it did not appear he was even ia possession. The court said : " The covenant is taken for the protection and assurance of the title which the grantor assumes to pass by his deed to the covenantee ; and, where the covenantee assumes to pass that title to another, it is fair to suppose that he intends to pass with it, for the protection of his grantee, every assurance of it that he has, whether resting in right of action or in unbroken covenant ; so that if, before enforcing his remedy for breach of the covenant, the covenantee execute a conveyance of the land, unless there be something to show a contrary intention, it may be presumed that he intended to con- fer on his grantee the benefit of the covenant, so far as necessary for his protection ; that is, that he intends to pass all his right to sue for the breach, so far as the grantee sustains injury by reason of it. See, also, Schofield v. Iowa Homestead Co., 32 Iowa, 318. In Wead v. Larkin, 54 111. 498, the court, after reaching the conclusion that, where the covenantee takes possession and con- veys, the covenant of warranty in the deed to him will pass to his grantee, although the covenantor may not have been in pos- session at the time of his conveyance, proceeds to say: "It ia not, however, to be supposed, because we do not now lay down a broader rule than is required by the case before us, that we hold, by implication, the covenants would not pass if the imme- diate covenantee should convey before taking possession. « * * We should be inclined to say that although the covenant of war- ranty is attached to the land, and for that reason is said, in the books, to pass to the assignee, yet this certainly does not mean that it is attached to a paramount title, nor does it mean that it is attached to an imperfect title, or to possession, and only passes with that ; but it means simply, that it passes by virtue of the privity of estate created by the successive deeds, each grantor being estopped by his own deed from denying that he has con- veyed an estate to which the covenant would attach." As our covenant of seisin runs with the land, what is there said as to the covenant of warranty is equally applicable to it. 728 THE REQUISITES AND COMPONENT PAKTS OF A DEED. The Patterson deed contains full covenants, and it was certainly the purpose to transfer to plaintiff whatever covenants and assur- ances the grantor held, whether broken or unbroken, and no good reason is perceived why the intention of the parties should not be made effectual, instead of being frustrated and wholly defeated. Had Patterson brought the suit on the covenants, we are of the opinion the deed to plaintiff would have been a com- plete defense. The plaintiff, on making proof of damages, will be entitled to recover. That many authorities would lead to a different result is conceded ; but the reason of many of them is overthrown, when it is shown that choses in action are assign- able, that the covenant of seisin runs with the land, as an in- demnity to the party who in fact suffers the loss, and that real projjerty may be conveyed, though in the adverse possession of another. The judgment is reversed, and cause remanded. All concur. Covenant B.nnning' with tbe Xiand Not a Condition. Post V. Weil, 115 N. Y. 361; 22 N. E. 145. Geat, J. This action arose out of the refusal of the appel- lants' testator to complete his agreement to purchase certain lots of land in the city of New York. Their sale had been at public auction, and by its terms an indisputable title was offered to purchasers. Weil, the appellants' testator, refused to accept the deed, which was tendered to him, on the ground that, by the provisions of a former deed, on record, and through which the title of the vendors was derived, the property of which these lots were part was subject to the operation of a condition subse- quent, to wit, a condition that no part of the premises should ever be used or occupied as a tavern. Whether this objection was sound and available to Weil is the question which is involved in this appeal. After a careful consideration of the facts, and upon a review of the whole situation, I am unable to find any serious difficulty in reading the clause in question as a covenant, whether we consider it on principles of strict law or of common justice. Mere words should not be, and have not usually been, deemed sufficient to constitute a condition, and to entail the consequences of forfeiture of an estate, unless, from the proof, such appears to have been the distinct intention of the grantor, and a necessary understanding of the parties to the instrument. Nor should the formal arrangement of the words COVENANT RUNNING WITH THE LAND NOT A CONDITION. 729 inflaence us wholly in determining what the clause was inserted to accomplish ; but in this, as in every other case, our judgment should be guided by what was the probable intention, viewing the matter in the light of reason. The operation of this clause, as contended for by the appellant, would have been to eflfect a great injustice; whereas if, as we read it, it was intended as a covenant for the protection of property, no prejudice could accrue to any one, and the purpose in the original grant would be respected and preserved in all its integrity. I am aware of the difficulty which attends the discussion of the legal question involved in this case, and also of the importance which is given to it by the fact that the courts below have held the clause in the deed to be a condition subsequent, while they have enforced the performance of the agreement of purchase upon other grounds. I shall, therefore, briefly review the facts as they appear in the record before us, in order better to demonstrate that the conclu- sion to be drawn from them, as to the probable intention of the parties, is that the clause under consideration could only have been inserted as a covenant. The premises in question were formerly part of a large estate lying in the upper portion of New York island, and known as ♦' Monte Alta." That estate and an adjoining estate, known as "Claremont," were owned and occupied as farms and country residences by one Michael Hogan. In 1807 he entered into an agreement in writing with one Jacob Mark for the sale to him of the Monte Alta estate for a sum of $16,000, and the agreement ■contained this clause: " Upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern." In 1811, four years afterwards, Hogan and wife deeded to Eobert Lenox, Jacob Stout, and John Wells, upon certain trusts, both of said estates ; that of Monte Alta, however, subject to the agreement with Mark. These facts are disclosed, not by the agreement and deeds themselves, — for they do not appear to have been recorded, and they were not produced, — but from subsequent deeds, which were made by these grantees, or trustees, of Hogan, and the Hogans, in conveyance of the properties to others. We are without information as to the reason for the non-completion of Hogan's agreement with Mark from the year 1807, when it was made, until the year 1811; and we know nothing concerning the nature of the trusts upon which Lenox and his associates in the trust referred to received and held the properties. A few months after Hogan's conveyance to Lenox and others, Monte Alta was conveyed to Mark by a deed, in which were joined, as grantors, Hogan and wife and the said trustees. That deed recited the facts of the agreement of 730 THE BEQUISITES AND COMPONENT PAKTS OF A DEED. Hogan to sell to Mark, and of the conveyance by Hogan and wife to Lenox and others as trustees, subject to that agreement. It conveyed the fee of the premises, free of incumbrances, and with covenants of title and warranty, but with the following pro- vision contained in the habendum clause, viz.: "Provided always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind." The Hogans' grant was of their right, title, inter- est, dower, and right of dower, etc., in or to the premises described, while that of Lenox and others was directly of the premises themselves. It is quite probable that the union of the Hogans as grantors was to perfect the record title, which the absence from the records of their deed to Lenox and others might affect, and to prevent any question from being raised as to the validity of Mark's title. In the conveyance subsequently made, in 1812, of the Claremontestate,the grantors were the same as in that of Monte Alta, and the deed was similar inform ; but it did not contain the clause respecting the use of the premises which I have quoted from the habendum clause in the deed of the Monte Alta property. In 1816 a release of that restrictive clause was, as a matter of fact, executed, and the title was thus freed from any question which might arise by reason of its existence ; but, as this release had not been recorded, and was lost at the time of the sale and of the tender of the deed by the vendors, and was not discovered and recorded until about two years af ter*- wards, and after the commencement of this suit, it cannot bo considered in determining upon the right of Weil to reject the title when the deed was tendered to him. He was entitled to rest upon the state of facts, as it was proved to be, when he refused to accept the deed. In 1819, Lenox and others executed to Hogan an instrument which, after reciting that they had set- tled and accounted with him touching the trust property by him conveyed to them in 1811, " as far as the same had been sold, appropriated, collected, received, or disposed of by them," assigned and conveyed to him whatever remainder there might be of the trust property ; and Hogan, by the same instrument, released them from all claims respecting execution of the trusts. In 1821, Joel Post became the owner of both of these estates, and he and his heirs held the same from that time until the sale by the heirs, in 1873. These are all the material facts in the case. When this purchaser objected that the estate was subject to a common law forfeiture, because of the condition subsequent reserved in the deed to Mark, the vendors answered COVENANT RUNNING WITH THE LAND NOT A CONDITION. 731 that the tripartite deed to Mark did not reserve a condition on the grant in fee upon which a forfeiture would inure to the grantor or his heirs in case a tavern should at any time be kept on the lands comprising the Monte Alta estate, but a covenant which, running with the land, would, while kept alive, prove an equitable protection against any injury from its breach, in favor of any subsiding interest, entitled to insist upon a performance of the covenant. In that construction of the clause in the Mark deed we think the plaintiffs were right; and, as that conclusion would dispose of the whole case, no other of the answers which they make in defense of their title need be considered. I un- derstand the appellants' counsel to concede that this appeal must succeed on the sole point that the reservation pointed out in the deed created a condition subsequent, and in fact it must be so; for if it created a covenant the union of both of the estates in Joel Post in 1821 would have the natural and legal result of ex- tinguishing the covenant. Although the words of the clause in question are apt to describe a condition subsequent, reserved by a grantor, we are in nowise obliged to take them literally. In the considera- tion of what, by the use of these words, was imported into the conveyance, we are at liberty to affix that meaning to them which the general view of the instrument and of the situation of the parties makes manifest. Whether they created a condition or a covenant must depend upon what was the intention of the parties, for covenants and conditions may be created by the same words. In order that a covenant shall be read from the words of an instrument, they need not be precise nor technical, nor in any particular form. In Bacon's Abridgment (" Covenant," A) it is said : " The law does not seem to have appropriated any set form of words which are absolutely necessary to be made use of in creating a covenant." In Sheppard's Touchstone (pages 161, 162 ) it is said : " There need not be any formal words, as ' covenant,' ' promise,' and the like, to make a covenant on which to ground an action of covenant, for a covenant may be had^ by any other words." Chancellor Kent, in his Commentaries, (volume 4, *132,) in speaking of whether a clause in a deed shall be taken to create a covenant or a condition, says: "Whether the words amount to a condition, or a limitation, or a covenant, may be matter of construction, depending on the contract. The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy, though conditions and limitations are not readily to be raised by mere inference and argument." The chancellor sums up the matter in this Ian- guao'e : " The distinctions on this subject are extremely subtle and 732 THE REQUISITES AND COMPONENT PARTS OF A DEED. artificial, and the construction of a deed, as to its operation and effect, will, after all, depend less upon artificial rules than upon the application of good sense and sound equity to the object and spirit of the contract in a girven case." Lord Mansfield said (Lant V. Norris, 1 Burrows, 290), that no particular technical words are requisite towards making a covenant ; and Lord Eldon said (Church v. Brown, 15 Ves. 264), that covenants may be for almost anything. That they have frequently been inserted in conveyances to maintain the eligible character of .property adjoining the parcel conveyed, by protecting it against the crea- tion of nuisances or of offensive structures, or against the carry- ing on of an injurious or offensive trade, is a familiar fact. It seems unnecessary to cite from the opinions of judges or of the writers upon this subject of jurisprudence, for there is a general concensus in opinion among them that the question is one always open to the determination most consistent with the reason and the sense of the thing. Eeference, whether it be to the earlier or later reports, fails to aid us in deducing from them a defined principle of construction. Many, if not most, of the early cases have been those turning upon the construction of clauses in leases ; and in each case, so far as the examination I have been able to give enables me to say, the court construed the clause as the circumstances and facts of that particular case seemed to de- mand. I would not pretend to reconcile all the decisions which have been made upon the subject ; but I readily extract the principle that technical words may be overlooked where they do not inev- itably evidence the intention of parties. I think the tendency of the law has been to assume towards this vexed question, as towards others which have come down from the days of the old common law, a more scientific attitude. So, if the only reason for construing a clause is in the technical words which have been used, the court may disregard them in performing the oflace of interpretation. If we can construe this clause as an obligation to abstain from doing the thing described, which, by acceptance of the deed, became binding upon the grantee, as an agreement, enforceable in behalf of any interest entitled to invoke its pro- tection, I think we are in conscience bound to give that con- struction, and thereby place ourselves in accord with that inclination of the law, which regards with disfavor conditions involving forfeiture of estates. In this connection it may be noted that there is no clause in the deed giving the right to re- enter for conditions broken. While the presence of such a clause is not essential to the creation of a condition subsequent, by which an estate may be defeated at the exercise of an election by the grantor or his heirs to re-enter, yet its absence, to that COVENANT EUNNING WITH THE LAND NOT A CONDITION. 733 extent, frees still more the case from the difficulty of giving a more benignant construction to the proviso clause. The presence of a re-entry clause might make certain that which, in its ab- sence, is left open to construction. The absence of such a clause may have its significance, in connection with the circumstances of thexjase and the intent to be fairly presumed therefrom. Now, the first significant feature of this case, which may be referred to in determining the intention, is the agreement between Hogan and Mark. That was the agreement by which the one was to sell and the other to buy Monte Alta. In it was inserted a " special condition that no part of the land or the buildings thereon should ever be used or occupied as a tavern." That was the agreement or understanding of both parties as to a restriction upon the use the premises might be put to. Then we are to presume, from what took place in the conveyance after- wards by Hogan to the trustees of both the Monte Alta and Claremont estates, and their subsequent accounting with him, that Hogan had become financially embarrased, and had sought this equitable mode.of settling with his creditors. But when the trus- tees carried out the agreement which Hogan had made with Mark, and deeded the Monte Alta property to Mark, they incorporated in their deed the restriction which had been agreed to in the contract as to the use of the property. Now, the obvious and only pur- pose which Hogan could have had in view when the contract was made to protect the adjacent property, which he then owned, from being injured by the vicinity of an undesirable structure or business. I think we all will agree that the presumption here, as in every other case where a restriction is inserted in a deed against undesirable structures or trades, is that the insertion was for the purpose of protecting rights which the grantor had in adjacent property. In this case the clause obviously was for the benefit of the Claremont estate. This view is reinforced by the fact that when the trustees came to sell the Claremont property no such condition was inserted in that deed. When the trustees disposed of the Monte Alta property, Hogan had ceased to have any interest in it, other than in having it bring all that could be obtained from a sale of the properties, in order to free himself from his embarrassments. When the legal estate became vested in the trustees their duty was to make the sales yield all that was possible. They had no interest to subserve by conveying the property subject to any condition subsequent. The effect, how- ever, of a covenant in the deed to Mark covering a restriction like that in the agreement of the parties would be to enhance the market value of the other property by preserving to the whole an eligible character. An intention that the restrictive clause 734 THE REQUISITES AND COMPONENT PARTS OF A DEED. should operate as a condition subsequent seems hardly suppos- able under the circumstances. Except we talse the words literally, no reason suggests itself for that construction. Hogan had no legal interest in the property at the time of the convey- ance. What interest could he then have which his trustees might be supposed to subserve, or which he might be supposed to insist upon, in securing a reverter of the one Monte Alta estate to himself or his heirs. None is apparent; and I say, therefore, that the reason and the sense of the thing indicate that the clause is to be read as a covenant. In construing a clause which imports into an instrument a restriction, or imposes an obligation not to do something, reliance should be placed upon the known or supposable aim of the grantor, or upon the sense of his act. So long as technical words are to be deemed unavailing to control interpretation, we should disregard them, and have resort to what may furnish some evidence of the underlying intention. In speaking of the sense of the act, I refer as well to the apparent object to be attained as to the mode resorted to in order to effect it. What reason have we to justify us in attaching to these particular words so technical a meaning, and to freight them with such serious consequences, when it appears that no such interest exists in the grantors as demands a reservation of such a condition, or makes it in the slightest degree important ? Where does the neces- sity exist for such a technical construction? Here the grantors of the legal title had no interest in creating a reverter to them- selves, for they were mere trustees. Their grantor, whatever his beneficial interest in the trust, had no apparent interest to subserve, which is pointed out or which is discoverable, in plan- ning a reverter of the estate for a breach of condition. There Tvas no interest which was not adequately met by the creation of a covenant or limitation in trust that the property should not be used for the one certain purpose mentioned. I think it more agreeable to reason, as it is to the conscience, — and it well com- ports with the character and origin of this deed, — if we say that the office of this clause was simply to restrain the generality of the preceding clause. SeeChapinw. Harris, 8 Allen, 594. The words " provided always, and these presents are upon this express condition," seem to me to serve the purpose of restrict- ing that the use of the premises which was, of course, general and unrestricted under the grant. They do not import any new and separate idea, and I think the rule is a safe one, that words alone should not be deemed to create a condition subsequent and to be capable or importing possible future forfeiture of estate, except where they do introduce some new clause the sense of COVENANT RUNNING WITH THE LAND NOT A CONDITION. 735 which is not referable to, and in qualification of, some preced- ing clause, and evidences some part of the consideration for the grant of the property by the imposition of an obligation upon the grantee. Looking at these words, may we say, as they stand in the deed, that they are conditional in sense, when they in reality serve to qualify the generality of the grant in the lan- guage which precedes them? I think we cannot, in reason. In Avery v. Railroad Co., 106 N. Y, 142; 12 N. E. Rep. 619, we have a late exposition of the views of this court upon the effect to be given to language in deeds purporting to convey upon express conditions. In that case it was sought to enjoin the defendant from maintaining a fence upon a strip of land dividing its depot premises from the plaintiff's hotel premises, and from thus blocking up a passage-way between the hotel and depot. The land upon which defendant built the fence was con- veyed by deeds which contained the following provisions: *' This conveyance is upon the express condition that the said railroad company, its successors or assigns, shall at all times maintain an opening into the premises hereby conveyed opposite to the Exchange Hotel, so called [being the plaintiff's premises], adjacent to the premises hereby conveyed," etc. The grantors in these deeds had acquired title under a will to the hotel prop- erty, and their testator had been the grantor of the property used by the defendant for its depot. The defendant denied the right of plaintiff, to whom the hotel property had been leased by the devisees, to maintain the action, alleging that the language of the provision in the deeds created a condition subsequent, which could only be taken advantage of by the grantors and their heirs. The plaintiff cJ^imed that it must be construed as a cove- nant. Judge Peckham, delivering the opinion of the court, said : " We incline to the construction contended for by the plaintiff. The fact that the deed uses the language ' upon condition,' when referring to the conveyance by the grantors, is not conclusive that the intention was to create an estate strictly upon condi- tion. * « * Construction may frequently be aided by ref- erence to all the circumstances surrounding the parties at the time of the execution of the deeds, because the court is thus enabled to be placed exactly in their situation, and to view the case in the light of such surroundings." After referring to the facts, he continues: " All these facts would lead one to the un- hesitating conclusion that the language used in those deeds in 1857 was for the benefit of the hotel property, and was not meant to create a condition subsequent. * * * It was in- tended to be an agreement or covenant between the parties run- ning with the land, providing for this access or right of way, so 736 WILLS. as to continue or enhance the value of the hotel property by providing for such easy access to it from defendant's depot for passengers and baggage. See Stanley v. Colt, 5 Wall. 119 ; Countryman v. Deck, 13 Abb. N. C. 110. Courts frequently, in arriving at the meaning of the words in a written instrument, construe that which is in form a conditiqp, a breach of which forfeits the whole estate, into a covenant on which only the actual damage can be recovered. See Hil. Keal Prop. (4th Ed.), p. 526, § 13; 2 Washb. Eeal Prop. (3d Ed.), c. 14, subd. 3, p. 3 et seq." The avenue of reasoning by which the court reached their conclusion in that case is the one which ought to lead us to our conclusion now, — that the clause in question in the case at bar was intended as a restriction created for the benefit of the adjoining prop- erty, expressed in the strongest terms, and which was enforcea- ble as a covenant running with the land, and was not a condition subsequent, imposed for the personal benefit of the grantors and their heirs. For the reasons stated, the judgment appealed from should be aflSrmed, with costs. AH concur (Andrews, J., in result), except Eager, C. J., not voting. CHAPTER XXm. WILLS. Claiborne ». Radford, 91 Va. 627; 22 S. E. 348. In re Walter's Will, 64 Wis. 487; 25 N. W. 538. Cartwright v. Cartwright, 1 Phillimore, 90. In re Hunt's Will, 110 N. Y. 278; 18 N. E. 106. Biggs V. Palmer, 115 N. Y. 606; 22 N. E. 189. Newcomb v. Webster, 113 N. Y. 191 ; 21 N. E. 77. Pickens v. Davis, 134 Mass. 252. Form of 'Will — When Instrument is a Deed or Will. Caaiborne v. Eadford, 91 Va. 627; 22 S. E. 348. Keith, P. The appellant, Ellen Du Val Claiborne, who was Ellen Du Val Radford, filed her bill in the circuit court for the county of Bedford, making Du Val Radford (in his own name, and as administrator of E. C. W. Radford, deceased, and as administrator d. b. n. of Octavia Du Val Radford, deceased), Thomas S. Eadford, and others, de- FORM OF WILL WHEN INSTRUMENT IS A DEED OR WILL. 737 fendants, in which she asks that a decree may be entered requir- ing Du Val Eadford to pay over to her the sum of $10,000, which she claims as being in his hands, and as belonging to her. The defendant answered the bill, and, among other defenses, set out the fact that the complainant had, by deed, conveyed her interest in the money which she demanded of him to W. V. Wilson, upon a certain trust, and avers that the property de- manded of him is claimed by the said W. V. Wilson, as trustee, and prays that the complainant may be required to amend her bill so as to bring her trustee before the court. This amended bill was filed, and the trustee made a party. In the amended bill the complainant presents for the consideration of the court the construction of the paper, in form a deed, dated the 2d of July, 1891, and which is as follows: — " This deed, made this the 2nd day of July, in the year of our Lord, 1891, between Ellen Du Val Radford, party of the first part, and Wm. V. Wilson, Jr., trustee, party of the second part, witnesseth, that for and in consideration of the sum of five dollars, the receipt of which is hereby acknowledged, the said party of the first part does hereby grant, bargain, sell, and convey unto the said party of the second part, all of her stock, bonds, and other evidences of debt, to be held by him, the said party of the second part, and his qualified successors, upon the following trusts, for the sole use and benefit of the said Ellen Du Val Radford for and during her life: The said trustee shall have power and authority to collect any and all outstanding debts whenever he may think proper to do so, and relend the principal, upon good city real estate security. The interest and dividends on all the property hereby conveyed shall be collected by the said trustee, and paid over to the said Ellen Du Val Radford, and after deducting from the same reasonable compensation for the said trustee for his services. The stocks and railroad bonds now owned by the said party of the first part, and by this deed con- veyed, shall not be sold by the trustee without the written con- sent of the said Ellen Du Val Radford, and in case of such sale the proceeds shall be reinvested or loaned out as hereinbefore provided by the said trustee. All of the said property hereby conveyed that is held by any bank or individual as collateral se- curity for any debt of the said party of the first part shall be loaned for such debt, and the said trustee shall have the power to make the proper transfers, if necessary, for the settlement of such debt, but the same shall not be liable for any debt hereafter created by either of the parties of this deed. And at the death of the said party of the first part the property hereby conveyed 47 738 WILLS. shall pass to the children of the said party of the first part, if she leave any, but if she leave no children the same shall pass to her heirs at law, as though the same were real estate. Witness the following signature and seals: [Signed] Ellen Du Val Kadford. [Seal.] Wm. V. Wilson, Jr. [Seal], Trustee. "State of Virginia, City of Lynchburg, to wit: I, Thos. D. Christian, a notary public in and for the city and State afore- said, do certify that Ellen Du Val Eadford and William V. Wilson, Jr., whose names are signed to the writing above, bear- ing date on the 2nd day of July, 1891, have acknowledged the s^ame before me in my city aforesaid. Given under my hand this, the 2nd day of July, 1891. [Signed] Thos. D. Christian, Notary Public. " Virginia. In the clerk's office for the corporation court for the city of Lynchburgh, the 3rd day of August, A. D. 1891. This deed was presented, and, upon the annexed certificates of acknowledgments, admitted to record. Teste : [Signed] S. G. Wingfield, Clerk." Complainant claims that this paper is not a deed, by which her interest in the property mentioned was divested, but that it is a power of attorney creating W. V. Wilson an agent for the management of the property mentioned therein, and that the concluding clause is testamentary in its character, and that the whole instrument, whether regarded as a power of attorney or a paper testamentary, is revocable; and, proceed- ing upon this idea, she, on the 5th day of October, 1892, executed another paper, under seal, by which she undertakes wholly to revoke and annul the aforesaid instrument, and to terminate the authority and interest of William V. Wil- son as trustee. The record presents two questions for our de- cision; one arising upon the original bill, and to which I shall no further advert than to say that, as the whole matter in controversy is settled by the disposition which we have made of the amended bill, no reference need be made toit in this opinion. We will address ourselves, therefore, to ascertaining the con- struction to be placed upon the paper purporting to be a deed, and dated the 2d of July, 1891. The arguments of counsel on both sides have been exhaustive of every phase of the subject, and the citation of authorities has presented for our considera- tion a great number of adjudged cases, many of which are not accessible to us here. In our view of the case, however, it is wholly free from doubt and difficulty, and may be determined by reference to well-established elementary principles. To us, the attempt to treat this paper either as a power of attorney cr as a will seems to rest upon an entirely erroneous con- FORM OF WILL — WHEN INSTRUMENT IS A DEED OR WILL. 739 ception. As is said in the case of Ewing v. Jones (Ind. Sup.), 29 N. E. 1057, there is nothing in the paper, from beginning to end, to indicate that it is a will, or partakes of the character of a will. " In form, in substance, in recital, and declaration, it is a deed of trust." It is true that some of the instructions given the trustee as to the manage- ment of the property during the lifetime of the grantor would have been entirely appropriate in an instrument creating a mere agency, but there are also terms employed unusual, unnecessary, inappropriate, and improper for such purpose; and, taken as an entirety, it may be safely affirmed that no precedent can be pro- duced of a power of attorney or will, or writing partaking of the double nature of power of attorney and will, presenting the characteristics of that under consideration. It grants, bargains, sells, and conveys absolutely, and without reservation or condi- tions, all the stocks and bonds, and other evidences of indebted- ness, the property of the grantor, Ellen Du Val Eadford, to William V. Wilson and his qualified successors, in trust for the sole use and benefit of said Ellen during her lifetime. Is this the language of a power of attorney, or of an instrument creat- ing a trust? It operates to vest in Wilson whatever interest Miss Radford may have had in the property described. Its operation is not postponed until her death, but it takes efiect upon the instant of the execution of the paper. This deed was written, signed, and acknowledged before a notary on the 2d day of July, 1891. On the 3d day of August of the same year it was admitted to record in the office of the corporation court of the city of Lynchburg, and the grantor was married on the 8th day of the same month . Thedeed transfers all her personalty to her trustee. It uses apt words for the creation of an equitable separate estate. It excludes the marital rights of the husband in the life estate which it creates, and carefully guards against his enjoyment of it after her death by providing that it shall pass to her children, if she shall have any, or, if there are no children, that it shall pass to her heirs at law, as real estate. Looking to the surrounding circumstances, and to the language of the deed, it may fairly be considered that the contemplated marriage furnished the motive for the instrument, and that it was the purpose of the grantor to guard against the improvidence or the ill fortune of her future husband. Counsel for the appellant seize upon the phrase, " at the death of the party of the first part the property hereby conveyed shall pass to the children of the party of the first part, if she have any," etc., as clearly impressing a testamentary chaiacter upon the paper, but we cannot concur in this view. As we have seen, the property, upon the execution of the deed. 740 WILLS. vested at once in the trustee, and the direction of the clause just quoted is that it " shall pass," not from the grantor, — for it has already passed from the grantor, by virtue of the preceding part of the paper, — but that it " shall pass " from the trustee in whom it had vested, as directed, at her death. The code has provided for the protection of the property of married women by creating what, for the sake of brevity, has been designated as " statutory separate estate," but by section 2294 of the code the right to create equitable separate estates is preserved unaf- fected by the statute law. We are of opinion, therefore, that whether the deed of July 2, 1891, be regarded as an ordinary trust, or as a settlement made in contemplation of marriage, and creating a separate equitable estate in the grantor for life (in which aspect we are disposed, under all the circumstances of the case, to view it), we consider it as a valid, subsisting, irrevo- cable instrument. We are of opinion that there is no error ia the decree complained of, and that it must be aflBrmed. Will, Written in Lrangnage Unknown by Testator, Valid. In re Walter's Will, 64 Wis. 487; 25 N. W. 538. Appeal from circuit court, Sheboygan County. An instrument in writing purporting to be the last will and testament of Minna Walter, late of the county of Sheboygan, deceased, was presented for probate to the county court of that county by George V. Whiffen, the executor therein named, and was admitted to probate by that court. The instrument is written in the English language. At the time of her death the estate of the testatrix consisted of her wearing apparel, some bedding,and about $1,000 in choses in action. It does not appear that she had any other property at her death. In her will she bequeathed her wearing apparel to Sarah Bolt, her neighbor, and the residue of her property to one Herman Millert, who, when the will was executed, was about 18 years of age, and with whom the testa- trix lived. Neither of the legatees were relatives of the testatrix. She left surviving her three brothers residing in Wis- consin, and sisters and descendants of sisters residing in Ger- many. These were her nearest of kin. The brothers of the testatrix, Frederick, Martin, and Christian Schultz, appealed to the circuit court from the order of the county court admitting- such instrument to probate as the last will and testament of their deceased sister. The issue devisavit vel non was tried by the court, and resulted in the following findings of facts: — " (1) That said Minna Walter died on the sixth day of Feb- WILL, IN LANGUAGE UNKNOWN BY TESTATOK, VALID, 741 Tuary, 1884, at the town of Sheboygan Falls, in Sheboygan ■County, and an inhabitant of said county. (2) That the instru- ment propounded as the will of said deceased was, on this twenty- third day of November, 1881, signed by said Minna Walter by affixing her mark thereto in the presence of three witnesses, who subscribed the same, and her name was therein signed by Francis Williams in her presence and by her express direction. (3) That said will was written in the English language at the request and according to the directions of said Minna Walter, and she was a German and did not understand the English language ; but said Minna Walter fully stated to Francis Williams, who draughted «aid instrument, through an interpreter who understood both languages, the objects and bequests therein written ; and after said instrument was written it was read over to her, and ex- plained in German by said interpreter; and said instrument fully expressed her purposes as there declared. (4) That said Minna Walter was at all of said times of sound mind, memory, and understanding, and of lawful age and under no constraint. {5) That said instrument so propounded for probate was by said Minna Walter then and there in the presence of three subscrib- ing witnesses, declared as her will ; and said witnesses, at her request, and in her presence and the presence of each other, subscribed the said instrument under the attestation clause as subscribing witnesses, and said witnesses were competent thereto." From the facts thus found the court determined that the in- strument in question is the last will and testament of the de- ceased, and that the same was duly and legally executed. Judgment was thereupon entered affirming the order of the county court, so admitting the instrument to probate. From that judgment the same three brothers of the testatrix have appealed to this court. Lyon, J. The learned counsel for the appellants challenges the accuracy of each and every finding of fact except the first, which states the residence of the testatrix and the date of her death, and that portion of the third which finds she was a Ger- man and did not understand the English language. He argues with much ingenuity that the testimony fails to prove any of the propositions of fact thus challenged. After an attentive per- usal of the testimony we find ourselves unable to agree with counsel. We think that every fact essential to the validity of the will was established by a fair preponderance of the testi- mony ; or, at least, that there was no such clear preponderance of testimony against any material finding of fact as will authorize this court to set it aside. We do not deem it necessary, in this 742 WILLS. opinion, to set out the testimony oi* discuss it at length. The statement of our conclusions therefrom must suflSce. Aside from the finding that the testatrix did not understand the lan- guage in which her alleged will was written, it cannot be doubted that the other findings of fact fully justify the admitting of the instrument to probate as her last will and testament. We are thus brought to consider the only question of law presented by this appeal, to wit : Should an instrument executed with all the formalities which the law makes essential to a valid execution of a will, which purports to be the last will and testament of the deceased person so executing it, and which expresses his will and intentions, be denied probate for the sole reason that such per- son did not understand the language in which the instrument was written? This is an interesting and, perhaps, an important question. It has not heretofore been raised in this court to our knowledge,, and the industry of counsel has failed to find a direct adjudica- tion of the question elsewhere. However, in Eedfield on Wills^ to the statement in the text that " it seems to be well settled that the testator may put his will in any language he may choose," there is a note in which the author says: " We doubt if the common law will allow of a written will being expressed in a language not understood by the testator. That would seem in- dispensable to any understanding execution of the instrument." Vol. 1, p. 166 (4th Ed.), note 8. No case or authority is cited to support the opinion intimated in the last extract. The reason given for this opinion is, in effect, that a person cannot have an understanding of the con- tents of an instrument unless it be written in a language he knows. True, he may not get such understanding by reading the instrument himself, but there are other methods by which he can be accurately informed thereof, although he may not be able to read understand ingly a word of the instrument. A vast amount of accurate knowledge is alone imparted to the mass of mankind by means of translations from languages understood by but few. Such is the foundation of our belief in very many most important accepted truths in theology, science, and history. Important writings are frequently signed without perusal, the signer relying upon the statement of another, who knows what the instrument contains, as to its contents. If the information states such contents truly, the signer knows just what he has signed. Were an issue made up as to whether the signer of a written instrument knew its contents when he signed it, and the proof should show that he never read it, but was accurately informed of its contents orally, before he signed it, by a person WILL, IX LANGUAGE UNKNOWN BY TESTATOR, VALID. 743 who had read it, the issue would necessarily be found in the affirmative ; that is, that the signer knew the contents of the instrument. There can be no doubt, we think, that a person who signs an obligation or promise with knowledge of its contents, imparted to him by parol, is liable thereon, although it may be written in a language he does not understand. The question is not by what means or instrumentalities the signer was informed of the contents of the instrument, but did he know its contents when he signed it?- No good reason is perceived why this is not also true of wills. Of course it is essential to a valid will that the testator should have had an intelligent understanding and comprehension of its contents when he executed it. The formalities required by law in the execution of wills are prescribed for the purpose (among others) of preserving satisfactory evidence that the testator in each case had such understanding of the contents of his will. But the law does not require that he shall read his will before execution, or be able to read it, as a condition to its validity. If such were the law, the blind, or those persons who from illit- eracy or other cause are unable to read, could never make a valid written testament. The same would be true of many per- sons who may desire to execute a written will when in extremis, and who are otherwise competent to do so. It has long been held that persons thus circumstanced may execute valid written wills. And if the will of any such person is drawn in accord- ance with his instructions, although not read over to him, it seems now to be settled that, if otherwise sufficient, it is a valid will. 1 Eedf. Wills, p. 57, c. 3, sec. 6, § 5. We perceive no substantial difference in principle between the cases above referred to and one in which a will is drawn up in a language which the testator does not understand. In cases be- longing to either class the court should require satisfactory proof that the testator was correctly informed of the contents of the instrument he was about to execute. Such proof was made in the present case, and in addition thereto it was proved that the instrument was drawn in strict compliance with the instructions of the testatrix in that behalf. In view of the well-known fact that quite a large percentage of the people of this State do not understand the English lan- guage, and of the probability that many wills of such people, written in English, have been admitted to probate, we should adopt the rule here suggested, even though the argument against it were much stronger than it is. Otherwise great mischief might be done by defeating the real will of the testators, care- fully expressed, and duly verified in the manner prescribed by 744 WILLS. statute, and by unsettling estates supposed to be settled, and divesting rights of property believed to be fully vested. If the same circumstance had existed generally in this country when Judge Redfield wrote the intimation above mentioned, we greatly doubt whether he would have thought that the rule there sug- gested (even conceding it to be a rule of the common law) was at all applicable to the condition and circumstances of our people. Our conclusion is that, because the instrument in question was freely executed by the testatrix in due form of law, with full and accurate knowledge of its contents and in accordance with her instructions (she being of sound mind), it was properly admit- ted to probate, and established as her last will and testament, notwithstanding it was written in the English language, which she could not read or understand. The judgment of the circuit court is affirmed. What Insanity on the Part of the Testator will Avoid the Will. Cartwright v. Cartwright, 1 Phillimore, 90. Sir William Wynne. The question in this cause arises upon the will of Mrs. Armyne Cartwright, deceased, which has been opposed and propounded on behalf of the contending parties. The will is on all sides admitted to be in the handwriting of the deceased ; and it is in these words : — " Wigmore Street, August 14, 1775. I leave all my fortune to my nieces, the daughters of ray late brother, Thomas Cart- wright, Esq., except £100 each to my executors, and one year's wages to my servants and mourning. I appoint Mrs. Mary Catherine Cartwright, my nieces' mother, and Thomas George Skipworth, Esq., of Newbold Revel, in Warwickshire, my exec- utors, and trustees for my nieces until they come of age or marry ; if any of them should die sooner, their shave to go to the survivors or survivor. " Akmynb Cartweight." It appears to have been inclosed and sealed up in a cover ; and upon the back of the cover is written in the handwriting of the deceased, " This is my will. A. Cartwright." The willis writ- ten in a remarkably fair hand, and without a blot or mistake in a single word or letter. Pleas have been given in on both sides, and there is a pretty full account of the family and connections of the deceased, and her affections, and I think it clearly ap- pears the will is as proper and natural as she could have made. WHAT INSANITY WILL AVOID THE WILL. 745 and it is likewise as conformable to her affections at the time. * * • The only witness, then, that has given any kind of account of the writing of the will is Charity Thorn, who was present at the time ; there was another witness of the name of Gore, but she is dead ; therefore Charity Thorn is the only person who can give any account of what passed; and the account she gives is extremely material ; for I cannot agree with what was said by Dr. Nicholl, that this will relies entirely upon the face of the will itself, and upon the evidence of Mrs. Cottrell, and the proof of handwriting, for its support. I think the evidence of Charity Thom goes very materially to support it ; her evidence is in these words ; she says to the 15th and 16th articles of the first allegation, " That whilst the said Dr. Battie visited and attended the said deceased, he desired the nurse and the deponent and her other servants to prevent her from reading or writing, as he gave it as his opinion that reading and writing might disturb and hurt her head ; and in consequence thereof she, the said deceased, was for some time kept from the use of books, pens, ink, and paper ; that, however, some time prior to the writing the will in ques- tion in this cause, but precisely as to time the deponent cannot speak, she, the said deceased, grew very importunate for the use of pen, ink, and paper, and frequently asked for it in a very clamorous manner ; that Dr. Battie endeavored to dissuade and pacify her, and told her that whatever she wrote he must appear as a witness against, but that if she would wait till she got well he would be a witness for her; that the said de- ceased continuing importunate in her desire to have pen, ink, and paper, the said Dr. Battie in order to quiet and gratify her consented that she should have them, telling the deponent and Elizabeth Gore, the nurse, that it did not signify what she might write, as she was not fit to make any proper use of pen, ink, and paper; that as soon as Dr. Battie had given his permission that Hhe should have pen, ink, and paper, the same were carried to her ; and her hands, which had been for some time before kept constantly tied, were let loose, and she, the said deceased, sat down at her bureau and desired this deponent and the nurse to leave her alone while she wrote, and they, to humor her, went into the adjoining room, but stood by the door thereof so as they could watch and see the said deceased as well as if they had been in the same room with her; that the said deceased at first wrote upon several pieces of paper, and got up in a wild and furious manner and tore 'the same, and went to the fireplace and threw the pieces in the grate, one after the other; and after walking up and down the room many times in a wild 746 WILLS. and disordered manner, muttering or speaking to herself, she -wrote, as the deponent believes, the paper which is the will in question ; but the deponent further saith that at the time now deposed to the said deceased had not shown any symptoms what- ever of recovery from her disorder, and in the deponent's opinion she htid not then sutficient capacity to be able to comprehend or recollect the state of herself, her family, or her affairs, and dur- ing the time she was occupied in writing, which was upwards of an hour, she, by her manners and gestures, showed many signs of a disordered mind and insanity." She says to the 25th inter- rogatory, " that the deceased was occupied upwards of an hour, nearly two hours as well as the deponent can at this distance of time recollect, in making the will in question; that is, from the time of the pen, ink, and paper being given her, until she left off writing; that the respondent and Elizabeth Gore, the nurse, went out of the room into the adjoining room, and left the said deceased alone in the room, but not out of their sight ; that she said she was going to write, but the respondent does not recollect whether she said she was going to make her will, but the respondent under- stood that she was writing a will ; that when the said deceased was left in the room by herself she was so agitated and furious that the respondent was very fearful she would attempt some mischief to herself, but she did not do any; that a candle was given to the said deceased to seal what she had written, but the respondent cannot recollect what length of time the candle was by her ; that the respondent and also the nurse were always cautious of trusting a candle near the said deceased, but on this occasion they did permit her to have a candle notwithstanding she showed many marks of derangement and insanity at the time, this respondent and the nurse being at hand and watching her to prevent any mischief ; that the said deceased seemed very ear- nest in what she was about, but by no means closely settled, as whilst she was writing she frequently started up and walked up and down the room in an agitated manner ; that it was not cus- tomary to untie the said deceased's hands, or to leave her alone when she desired it, at times when she was greatly agitated and disordered, although sometimes in consequence of her earnest entreaties the respondent and the nurse would untie her for a little, and on the occasion now particularly deposed to she was so untied in consequence of the permission which Dr. Battle had given her to have pen, ink, and paper, but she was not left alone, as the deponent and the nurse stood at the door of an ad- joining room behind the said deceased, but not above two or three yards distant from the bureau where she sat to write." The fact then, as it appears by the evidence of this witness, is. WHAT INSANITY WILL AVOID THE WILL. 747 that the paper was written by the testatrix herself, no other per- son being present but the witness who gives the account and Elizabeth Gore, who is since dead, neither of whom gave her any manner of assistance ; and she tells you, that the deceased hav- ing first of all shown great eagerness and anxiety for pen, ink, and paper, did write this will the moment she obtained them without any assistance from anyone ; but it is said that the con- dition of the deceased at this time was such that she was utterly incapable of doing that or any other legal act, because it must be rational. They have certainly completely proved that the de- ceased was early afflicted with the disorder of her mind, I think about the year 1759, and she continued under the influence of that disorder pretty near two years, and after that she returned to her father's house being supposed to be per- fectly recovered, and that she continued to reside there from that time to his death ; that after that being in possession of her fortune she went about the year 1768 to housekeeping herself, and continued so to do as a rational person till 1774, and in the month of November in that year she went on a visit to her relation. Lord Macclesfield, at Shirburn in Oxfordshire; that on the 26th of November she returned to London in a dis- ordered and disturbed state ; at first she was attended by a phy- sician, Dr. Fothergill, who found it was a disorder of the mind, and what he had not directed his attention or study to. It is proved that in the latter end of January or beginning of Febru- ary, 1775, Dr. Battle was called in, and he treated her as an insane person, and sent a nurse to take care of her in the way they always do send nurses to patients disordered in mind. In general her habit and condition of body and her mannerl for sev- eral months before the date of the will was that of a person afflicted with many of the worst symptoms of that dreadful dis- order, and continued so certainly after making the will, which was the 14th of August, 1775. They have certainly made out that. Now what is the legal effect of such proof as this ? Cer- tainly not wholly to incapacitate such a person, and to say a per- son who is proved to be in such a way was totally and neces- sarily incapacitated from making a legal will. I take it the rule of the law of England is the rule of the civil law as laid down in the second book of the Institutes (Inst. Lib. 2, tit. 12, sec. 2) " furiosi autem si per id tempus fecerint testamentum quo furor corum intermissus est, jure testati esse vldentur." There is no kind of doubt of it, and it has been admitted that is the princi- ple. If you can establish that the party afflicted habitually by a malady of the mind has intermissions, and if there was an in- termission of the disorder at the time of the act, that being 748 WILLS. proved is sufficient, and the general habitual insanity will not affect it ;' but the effect of it is this, it inverts the order of proof and of presumption, for, until proof of habitual insanity is made, the presumption is that the party agent like all human creatures was rational ; but where an habitual insanity in the mind of the person who does the act is established, there the party who would take advantage of the fact of an interval of reason must prove it ; that is the law ; so that in all these cases the question is whether, admitting habitual insanity, there was a lucid interval or not to do the act. Now I think the strongest and best proof that can arise as to a lucid interval is that which arises from the act itself; that I look upon as a thing to be first examined and if it can be proved and established that it is a rational act rationally done the whole case is proved. What can you do more to estab- lish the act? because suppose you are able to show the party did that which appears to be a rational act, and it is his own act entire- ly, nothing is left to presumption in order to prove a lucid inter- val. Here is a rational act rationally done. In my apprehension, where you are able completely to establish that, the law does not require you to go further, and the citation from Swinburne does state it to be so. The manner he has laid down is (it is in the part in which he treats of what persons may make a will), says he, the last observation is, " If a lunatic person, or one that is beside himself at some times but not continually, make his tes- tament, and it is not known whether the same were made while he was of sound mind and memory or no, then, in case the tes- tament be so conceived as thereby no argument of phrensy or folly can be gathered, it is to be presumed that the same was made during the time of his calm and clear intermissions, and so the testament shall be adjudged good, yea although it cannot be pi-oved that the testator useth to have any clear and quiet inter- missions at all, yet nevertheless I suppose that if the testament be wisely and orderly framed the same ought to be accepted for a lawful testament.-" Unquestionably there must be a complete and absolute proof the party who had so formed it did it without any assistance. If the fact be so that he has done as rational an act as can be without any assistance from another person, what there is more to be proved I don't know, unless the gentlemen could prove by any authority or law what the length of the lucid interval is to be, whether an hour, a day, or a month ; I know no such law as that ; all that is wanting is that it should be of sufficient length to do the rational act intended ; I look upon it if you are able to establish the fact that the act done is perfectly proper, and that the party who is alleged to have done it was free from the disorder at the time. WHAT INSANITY WILL AVOID THE WILL. 749 that is completely sufficient. What does appear to be the case from the evidence of these witnesses? As to Charity Thom, who seems to me to be the principal witness, she gives an opin- ion of her own, and that opinion is against the validity of the act, and she expressly says over and over that the deceased at the time this was done was not sane and was not capable of knowing what she did ; that is the result of her evidence. The court, however, does not depend upon the opinion of witnesses, but upon the facts to which they depose. All the facts which are deposed to (it does appear tome) are sane; the witness' opinion arising fi-om her observations does not give any founda- tion at all for saying the testatrix was insane at the time of mak- ing the will ; her opinion that the deceased was insane at such time was founded on bodily affections which were extraneous. What is the fact ? she says that the deceased whilst employed about the act rose frequently and walked backwards and forwards about the room, that she did not set down closely to the business, that she started up, and that she tore several papers and threw the pieces into the grate, then wrote others, and did not appear to her to act in such a way as a person who was calm would do. In my apprehension, it appears from this account her manner of doing it was this : she wrote several papers, and if she saw any mistake whatever trifling she was dissatisfied and probably vexed she did not write in such a way as fairly to answer her own intention ; the paper itself has no mark of irritation ; a more steady per- formance I never saw in my life ; and it seems hardly consistent that a person wild and furious and in such a degree of insanity as she is stated to be should write in such a way. It seems to me a very extraordinary thing, but whatever outward appear- ance there was it had no effect on the writing itself ; she has wrote it without a single mistake or blot or anything like it. What is the construction? that she was endeavoring to write her will, which she had taken a determination to do ; that she made mistakes and destroyed those papers in which she had made them, that she knew how to correct them, and did correct them, and at length wrote and finished as complete a paper as any person in England could have done. Is this insanity? In my appre- hension, it is not; it seems to me she was vexed at her mis- takes, which I think shews that she had at that time her senses about her, and I think it appears likewise she was not then in fact in the disturbed condition she was before and after. They say they were generally forced to keep the strait waistcoat upon her, that even then she would thrust out her arms if she could, and strive to thrust her fingers in their eyes, and in short do every thing that would do mischief. Is there any mischief in 750 WILLS. the present case when the strait waistcoat is taken off? Nothing like it ; as soon as it is taken off she says, «' Give me pen, ink, and paper; " and when it is given her she says, " Leave me, for I am going to write; " and they go out of the room ; she is not disturbed at their watching her, but pursues her own intention and completes the paper; she inquires the day of the month, and an almanack is given to her by one of the nurses who was watching her, and the day of the month was pointed out to her; she then calls for a candle; and they say they used to be cautious not to trust her with a candle, and were forced to hold it at a distance from her if she read the newspaper ; but still in this case they give her a candle that she may use it in order to seal the paper; no harm was done of any kind, and none attempted; everything that was done was for the purpose of completing the act; and am I to conclude she was insane, because she might have bodily affections, irritations of nerves, when everything which was rational is done, and as collect- edly and as exactly as any person of the clearest sense would have done, and of her own head entirely. The gentlemen have said all this is mere form. Is it mere form that a person so situated as she was should of her own accord write a will containing the most rational disposition of her property, leaving all her fortune to her nieces, the daughters of her deceased brother who were the most natural to her, omitting her nephew who was possessed of a large fortune ? Is it a mere form that she should appoint for her execu- tors and trustees themother of those nieces, and her nearest rela- tion by the father's side, describing accurately the place where he lived, and that she should create a survivorship amongst them if any should die before twenty-one ? Is this only form ? It is the very essential part and substance of a will, and that will as rational a will as she or any other person could have made. Therefore, taking the fact to be that it was done of her own accord, it leaves nothing to be proved ; that being established puts the matter beyond all possibility of doubt, and I think there can be no ques- tion but that she had a legal capacity ; but, say they, we can hardly admit this is quite such a paper as it appears, and that it is the mere spontaneous act of the testatrix herself ; they surmise, and to be sure it is as groundless a surmise in point of evidence as possible, that it was done at the suggestion of Mrs. Cottrell, but it appears that she was at that time out of town and had been so for a month before ; but is the court to suppose that with- out evidence, and is there anything to support it? certainly not, and I cannot presume any such thing. If you have a mind to prove this was by the suggestion of Mrs. Cottrell, you may ; if you do not, I must take it to be, what it appears from the evi- PROOF OP PUBLICATION OF WILL. 751 dence, the pure and spontaneous act of the party herself, and that Mrs. Cottrell knew nothing of it till she was informed of it. * • * I am of opinion in this case that the deceased by herself writing the will now before the court hath most plainly shown she had a full and complete capacity to understand what was the state of her affairs and her relations, and to give what was proper in the way she has done. She not only formed the plan, but pursued and carried it into execution with propriety and without assistance. In my apprehension that would have been alone sufficient, but it is further affirmed by the recognition and the delivery of the will. Therefore, under all these circumstances I have no doubt in pro- nouncing this to be the legal will of the deceased. Ppoof of Publication of Will. In re Hunt's Will, HO N. T. 278; 18 N. E. 106. Gbat, J. Probate of the will of the deceased was refused, and the will rejected by the surrogate, for the reason that it was not executed and attested in the manner prescribed by law for the execution and attestation of last wills and testaments. His decree was reversed by the general term, and as it is stated in the body of the judgment appealed from to this court that the reversal was upon questions of fact as well as questions of law, we are called upon to examine the facts, and to determine them for ourselves. They are few and not conflicting, and establish that the instrument ofl"ered for probate as the will of the deceased was wholly in his handwriting, as was also the attestation clause which was signed by the witnesses, and that the will was signed by the deceased. The attestation clause was as follows: *' We, the undersigned witnesses, have signed the within in the presence of each other, and of the testator, who acknowledged it to be his last will and testament." It is insisted that there is no proof that the subscription to the will by the testator was made in the presence of the witnesses, or that it was acknowledged by him to have been made to each of the attesting witnesses. The recollec- tion of the two witnesses as to the transaction was imperfect; but each testified, however, in substance, that the circumstances must have been as stated in the attestation clause, or he would not have signed it. It is not pretended that there is any ground for rejecting the will, except that it was not executed in exact compliance with the statutory provisions referred to. The stat- ute has surrounded the execution of wills with certain formali- ties in order to prevent imposition, undue influence, and fraud : 752 WILLS. but it is well settled by authority that a substantial compliance with the statute is always sufficient. No particular form of words is required or necessary to effect publication. Lane v. Lane ; 95 N. Y. 494. And recently, iu Ee Beckett, 103 N. Y. 167; 8 N. E. Eep. 506, a case of holographic will, so close and severe a criticism of the terms and manner of publication was considered needless. We have here a testamentary disposition of the estste, which the witnesses recognized to be in the hand- writing of deceased, signed, unquestionably, by him; and an attestation clause, also in the handwriting of deceased, signed by them, which states it was signed by them in the presence of each other, and of the testator, and that the testator acknowledged the instrument to be his last will and testament. The only sup- posed doubt as to the matter is cast by the inability of the wit- nesses to recollect precisely what took place in detail. We think that it is a sufficient compliance with the statutory requirements if, in some way or mode, the testator indicates that the instru- ment the witnesses are requested to subscribe as such is intended and understood by him to be his executed will. In probate cases the courts should look to the substance of the transaction, and see that there was no opportunity for imposition or fraud. This will must have been presented to the witnesses by the tes- tator for them to sign, and such an act was equivalent to a com- munication by him that he intended to give effect to the paper as his will. If the paper was signed in the presence of the wit- nesses, that act was a sufficient compliance with the statute as to acknowledgment of the subscription. If signed before being presented to them, the exhibition of the paper, with his acknowledgment that it was his last will and testament, was a sufficient acknowledgment of the signature and publication of the will, within the rule laid down by this court in Ee Phillips, 98 N. Y. 267. In the case of Lewis v. Lewis, 11 N. Y. 220, cited by the surrogate, it appeared affirmatively by the witnesses that the paper was so folded that they did not see any subscription, and that testator only said that " I declare the within to be my free will and deed." Such affirmative proof of what took place brought the case clearly within the operation of the statute, and invalidated the execution. In that same case, however, Allen, J., said: "Mere want of recollection on the part of the witnesses will not invalidate the instrument, and in the cases cited by counsel the courts establishing the wills pro- pounded have done so upon the ground that they were satisfied from the circumstances proved that the wills were duly executed, and that the witnesses had forgotten, thus relieving the parties interested against the infirmities of humanity and the uncertainty PEOOF OF PUBLICATION OF WILL. 753 of human recollection." The attestation clause here is entirely consistent with the execution of the paper by testator in the presence of the witnesses, and nothing in the circumstances of this case pointing to any fraud or undue influence, and none benig charged, we think the presumption should prevail that all formahties have been observed, and we therefore are disposed to sustain rather than to reject this testament, for we feel satisfied that it was duly executed and published. The appellant further insists that the general term, upon re- versing the decree of the surrogate, should have ordered a jury trial of the material questions of fact arising upon the issues, and cites section 2588 of the Code of Civil Procedure in support of his point. That section provides that " where the reversal of a decree by the appellate court is founded upon a question of fact, the appellate court must, if the appeal was taiien from a decree made upon a petition to admit a will to probate, or to revoke the probate of a will, make an order directing the trial by a jury of the material questions of fact arising upon the issues between the parties." We do not think this provision applies to this case, and it was proper for the supreme court to adjudge as it did. Although the judgment, as amended, stated that the decree of the surrogate was reversed by the general term, upon questions of fact as well as questions of law, we cannot regard that as controlling on the point raised. We do not find that the reversal was dependent upon conflicting evidence. There was no conflict of facts at all. The only evidence was given by the two witnesses to the will. There was no difference between the surro- gate and the general term of the supreme court as to any ques- tion of fact, and there could be no issue for a jury. The two courts only difiered in the conclusion to be drawn from the facts, and that presents simply a question of law. For equivalent rea- sons this court, in Ke Martin, 98 N. Y. 193, a case probably overlooked by counsel, held that "the appeal to the supreme court was not governed by section 2588 or by Sutton v. Eay, 72 N. Y. 482," on which the appellant also relies in this case. It was there said that " they only applied when the reversal is founded upon a question of fact." We think the statute should receive a reasonable construction, and that literal obedience is not to be given to its language where it would work an unreasonable, if not absurd, result. The language in this section requires an order for a jury trial only where the reversal " is founded upon a question of fact ; " and the legislature undoubtedly intended that only where such was actually the case, and there was a real conflict of evidence, and the surrogate's court and the supreme court differed on the case, should the conflict be 48 754 WILLS. settled by a jury trial in the mode prescribed ; but that a new trial before a jury should be deemed necessary, where there is no con- flict in the facts, and the matter is one of the conclusion from the facts, is not a construction reconcilable with reason, and we should refuse our sanction to such a construction. The inser- tion in the decree of the statement as to the grounds of the re- versal, I think, we are not bound to take in the sense given to it by the appellant, but should regard it simply as the war- rant, under section 1338, for our examination of the facts of the case. The judgment appealed from was proper, and should be affirmed, with costs. All concur. Effect of Murder of a Testator by a Devisee on Matter's Kights Under tlie TV^Ul. Riggs V. Palmer, 115 N. Y. 506; 22 N. E. 189. Eakl, J. On the 13th day of August, 1880, Francis B. Palmer made his last will and testament, in which he gave small legacies to his two daughters, Mrs. Eiggs and Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his grandson, the defendant Elmer E. Palmer, subject to the sup- port of Susan Palmer, his mother, with a gift over to the two daughters, subject to the support of Mrs. Palmer in case Elmer should survive him and die under age, unmarried, and without any issue. The testator, at the date of his will, owned a farm, and considerable personal property. He was a widower, and thereafter, in March, 1882, he was married to Mrs. Bresee, with whom, before his marriage, he entered into an antenuptial con- tract, in which it was agreed that in lieu of dower and all other claims upon his estate in case she survived him she should have her support upon his farm during her life, and such support was expressly charged upon the farm. At the date of the will, and subsequently to the death of the testator, Elmer lived with him as a member of his family, and at his death was 16 years old. He knew of the provisions made in his favor in the will, and, that he might prevent his grandfather from revoking such pro- visions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate posses- sion of his property, he willfully murdered him by poisoning him. He now claims the property, and the sole question for our determination is, can he have it ? The defendants say that the testator is dead ; that his will was made in due form, and has been admitted to probate; and that EFFECT OF MURDER OP A TESTATOR BY A DEVISEE. 755 therefore it must have effect according to the letter of the law. It is quite true that statutes regulating the making, proof, and effect of wills and the devolution of property, if literally con- strued, and if their force and effect can in no way and under no -circumstances be controlled or modified, give this property to the murderer. The purpose of those statutes was to enable testators to dispose of their estates to the objects of their bounty at death, ^nd to carry into effect their final wishes legally expressed ; and in considering and giving effect to them this purpose must be kept in view. It was the intention of the law-makers that the donees in a will should have the property given to them. But it never could have been their intention that a donee who mur-